Posts from — April 2006

Slingbox is an Internet TV streaming device from Sling Media that enables consumers to remotely view their cable, satellite, or personal video recorder (PVR) programming from an Internet-enabled computer with a broadband Internet connection. This is commonly referred to as “space shifting”. HBO’s CTO, Bob Zitter, has said that content owners believe Slingbox violates their copyrights. Whether or not Slingbox violates copyrights, content owners perceive it as a competitive threat because: (i) they themselves are interested in monetizing the delivery of their programs via broadband connections; and (ii) Slingbox threatens their retransmission-consent arrangements by enabling out-of-market viewing of network and syndicated content. So, the question is, will Hollywood sue Sling Media for competitive reasons, arguing that the Slingbox, which does not copy or store content and only allows consumers that purchase content to access their content remotely, infringes its IP rights?

Sources: LightReading.com  |  ars technica  |  Broadcasting & Cable  |  Information Week  |  CEA Press Release Praising Slingbox  |  Wikipedia Entry on Slingbox

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Cathy Kirkman has been doing a tremendous job covering this weeks Blogging Law & Blogging for Lawyers Conference. Of all things, bloggers are blogging about the content of the blog law conference – go figure! Cathy is tracking all of these on her site:
Links: Day 1 | Day 2 | Conference Recap

See also: EFF’s recently posted Legal Guide for Bloggers.

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Steven Page of Barenaked Ladies was interviewed about the new Canadian Music Creators Coalition on the TV program Canada A.M. this morning. Click on the picture to watch the interview. To quote Steven from the interview:

The other thing that we are seeing happening a lot with the major labels is they are putting what is called DRM, digital rights management, on their tracks. So if you download a track from the iTunes music store or you buy a CD, quite often there is copy protection, which stops you from listening to your music in the way that you want to listen to it. That’s really frustrating as a musician and as a fan. So if I buy a CD and its doesn’t work on my car stereo or I can’t listen to it on my computer at work, that’s messed up!

Source: CMCC Website | Stephen Page Op Ed in National Post (May 1, 2006)

Related Posts:

• Canadian Music Creators Coalition Formed to Counter CRIA/RIAA (April 26, 2006)
  

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In another mostly partisan 24-22 vote, the House Committee on Energy and Commerce rejected another Democratic bid yesterday to include strong network neutrality protections in a telecommunications reform bill that is slated for a vote in the House in May. Net neutrality lobbyists seem to be gaining ground somewhat as the earlier vote against net neutrality on April 6 was much more lopsided at 23-8.

Sources: PC World  |  PC Magazine  |  L.A. Times  |  Boston Herald  |  ZDNet  |  Red Herring  |  San Francisco Chronicle  |  CIO Today  |  Information Week  |  MSNBC/FT.com  |  CNet News  |  Ms Magazine  |  Inquirer  |  The Register

Dale’s Comment: As I mentioned in my comments to the prior April 6 coverage, there is a strong possibility that one or both houses of Congress will return to Democratic control (or at least become more balanced) after the fall 2006 elections. As the Democrats pledge to fight on, hopefully, they’ll have another kick at the net neutrality issue then.

Related Posts:

• Setback for Net Neutrality (April 6, 2006)

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PDF Version of Guide
The Creative Commons has published a new Podcasting Legal Guide setting out many of the U.S.-specific legal issues confronting podcasters in straight-forward terms.

Source: Creative Commons

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USPTO Documents Filed Pertaining to this Challenge
EchoStar filed a request late last year with the USPTO to reexamine TiVo’s ’389 “multimedia time warping system” patent. Engadget reports that Echostar is going the way of RIM/NTP and are asking Judge Folsom to stay the judgment until word comes back from the patent office.

Source: Engadget

Dale’s Comment: Since the TiVo victory, numerous postings on various TiVo forums have indicated that TiVo has been negotiating a licensing deal/settlement with Echostar. No decision on treble damages for willful infringement has yet been handed down. And, of course, Echostar’s patent infringement counter suit against TiVo is still scheduled for next year.

Related Posts:

• Federal Circuit CA Blocks TiVo Injunction Against Echostar Pending Appeal (October 4, 2006)
• TiVo Wins Injunction Against Echostar – Appeals Court Grants a Temporary Stay (August 18, 2006)
  
• Echostar Follows RIM/NTP Playbook and Urges Judge to Stay TiVo Judgment (April 27, 2006)
• TiVo Wins Patent Infringement Case Against Echostar (April 13, 2006)
• TiVo Case Against EchoStar Headed to Jury (April 13, 2006)
• See Day-by-Day Trial Update Posts in March and April of 2006
  
• TiVo, EchoStar Head to Court (March 29, 2006)
• TiVo Against the Giants (March 15, 2006)

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Full-Sized Ad Copy
The Consumer Electronics Association has created a new ad, that will run in two Capitol Hill publications today. The add argues that it is time the content industry learns the difference between real pirates and average consumers and that consumers of lawfully acquired music should be able to use it however they wish.

Sources: EFF | Related CEA Fair Use Press Releases | Engadget

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Text of Proposed Perform Act
The PERFORM Act (“Platform Equality and Remedies for Rights Holders in Music Act of 2006“) was introduced into Congress yesterday. The bill prohibits satellite radio from offering its subscribers devices capable of recording off the air unless royalties are paid and content is locked with DRM. The catalyst for the bill was new devices XM Radio is bringing to the market that allow customers to save songs on the receivers. Sirius had already made deals with the major record companies that compensate them for downloads on its S-50 receiver.

Also in the bill is a provision that would effectively require music webcasters to use DRM-laden streaming formats, rather than the MP3 streaming.

Sources: EFF Deep Links | ars technica | BBC | TMCNet | Reuters | Billboard | CNet | Tech News – HRCC’s response | Red Herring | Hollywood Reporter | Washintgon Times | Techdirt | PublicKnowledge | Cathy Kirkman

Dale’s Comment: Aspects of this bill have merit. I agree that anyone wishing a permanent, transferable copy of a song broadcast through XM or Sirius should pay for it. If, however, the device does not permit the user to copy the song to an external device, then the concept is more akin to a PVR such as TiVo and fair use rights should allow the user to enjoy the song within the specific device for a reasonable period of time without an additional royalty payment – remember, XM and Sirius subscribers already pay compulsory royalties via their subscriptions to these services. To the extent an additional royalty payment is made to purchase a song, the user should have the right to copy/transmit the song off the XM/Sirius device to any other device owned by the user and, of course, all the other incidents of fair use for purchased music that I advocate for on this site should apply – the right to of the owner to transcode it to any other format, the right to play it on any device owned by the consumer, the right to sell/give-away/alienate the purchased copy (without retaining a copy) etc. If, however, this bill results in an obligation to pay for music that can’t be removed from the device or otherwise fairly used by the user, it should not be adopted.

Related Posts:

• Music Labels Sue XM Over its Inno/Helix Recording Capabilities (May 17, 2006)
  
• RIAA Negotiates DRM with XM and Other Digital Radio Operators (January 16, 2006)
• Sirius S50 has been (siriusly) crippled by the RIAA (December 2, 2005)
  

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Many of Canada’s most prominent recording artists, including the Barenaked Ladies, Avril Lavigne and Sarah McLachlan have formed the CMCC to have their “voices heard about the laws and policies that affect our livelihoods”. Contrary to the lobbying efforts of the CRIA/RIAA, the CMCC believes that: (i) suing fans, as is done by CRIA and the RIAA, is destructive and hypocritical – “the government should repeal provisions of the Copyright Act that allow labels to unfairly punish fans who share music for non-commercial purposes with statutory damages of $500 to $20,000 per song”; and (ii) digital locks enforced by DMCA-like laws are risky and counterproductive – “laws should protect artists and consumers, not restrictive technologies – consumers should be able to transfer the music they buy to other formats under a right of fair use, without having to pay twice.”

Sources: CMCC Press Release | CMCC Website | Michael Geist | Howard Knopf | Globe & Mail | ars technica | P2PNet | Digital Copyright Canada | Wired Bogs | Tech News World | Linux Electrons | CD Freaks | EFF

Dale’s Comment: As Howard Knopf so eloquently says: “This is music to my ears”. The CMCC is essentially calling for copyright reforms similar to those passed by the French Legislature on March 21 (see story here). Let’s see if American recording artists follow suit.

Related Posts:

• Geist’s CBC Interview: France Tunes Apple Out: Apple Bites Back (April 7, 2006)
• What Might Conservative Copyright Look Like? (April 2, 2006)
• Denmark May Follow France to Challenge Apple DRM (March 26, 2006)
• Apple Responds to Proposed French Legislation (March 22, 2006)
• French National Assembly Passes Bill to open iTunes (March 21, 2006)

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In this very interesting piece, Professor David Vaver discusses the interesting history of copyright law and argues that copyright lasts too long, is too oppressive, too restrictive and that publishers should not only have copyrights, but duties as well:

Publishers owed legal duties of fair price and free access when the copyright term was only 28 years long, when their only exploitation right was to prevent outright copying of all or most of a work. They then had no power to stop translations, fair abridgments, even stage adaptations or performances. The copyright laws no longer impose the same legal obligations on publishers that they faced in the 18th and 19th centuries. But now that publishers have got copyright terms that run four or five times longer, now that they can control almost every way a work can be exploited, perhaps they should look into their souls and ask whether they do not continue to owe the public, morally at least, those same duties of fair price, fair access and fair contract.

Source: Slaw: Professor David Vaver

Dale’s Comment: I had the pleasure of studying International Law with Professor Vaver when he was a professor at Osgoode Hall Law School. He is now Professor of intellectual property & and information technology law, University of Oxford.

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Text of Bill
According to CNET, Rep. Lamar Smith, and Rep. Jim Sensenbrenner, Jr. (R-WI), backed by the content industry, is about to introduce the Intellectual Property Protection Act of 2006 which would expand the DMCA’s restrictions on software that can bypass copy protections and grant federal police more wiretapping and enforcement powers. Loosely, quoting from the article, the proposed law:

• Creates a new federal crime of just trying to commit copyright infringement. Such willful attempts at piracy, even if they fail, could be punished by up to 10 years in prison.
• Boosts criminal penalties for copyright infringement from five years to 10 years (and 10 years to 20 years for subsequent offenses). The Act targets noncommercial piracy including posting copyrighted photos, videos or news articles on a Web site if the value exceeds $1,000.
• Creates civil asset forfeiture penalties for anything used in copyright piracy. Computers or other equipment seized must be “destroyed” or otherwise disposed of, for instance at a government auction. Criminal asset forfeiture will be done following the rules established by federal drug laws.
• Says copyright holders can impound “records documenting the manufacture, sale or receipt of items involved in” infringements.
• Permits wiretaps in investigations of copyright crimes, trade secret theft and economic espionage. It would establish a new copyright unit inside the FBI and budgets $20 million on topics including creating “advanced tools of forensic science to investigate” copyright crimes.
• Amends existing law to permit criminal enforcement of copyright violations even if the work was not registered with the U.S. Copyright Office.

Source: CNet | ars technica | Professor Ed Felton | IPAC

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Steve Jobs has apparently won his long-running battle with the record industry over the pricing of songs in the iTunes Music Store. Record companies had argued for more flexible pricing, with newer songs going for a higher price, and catalog material selling for less.

Sources: Engadget | ars technica | Apple Insider | New York Post | Inquirer Link

Related Posts:

• Apple iTunes Pricing to Stay at 99 Cents (May 2, 2006)
• The New Music Download Battle (September 28, 2005)
  

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The failure of some Internet service providers to retain user logs for a "reasonable amount of time" is hampering investigations into gruesome online sex crimes, U.S. Attorney General Alberto Gonzales said Thursday, indicating that new data retention rules may be on the way.

Sources: ZDNet | CNet | Jurist | Red Herring

Dale's Comment: What isn't being said by Gonzales is that such "reasonable" retention would almost assuredly be used by the government for government sanctioned spying programs and the "reasonably" retained information could be used to subpoenaed by the RIAA and the MPAA to more efficiently prosecute P2P file-sharing users.

Related Posts: 

• RIAA Wants U.S. ISPs to Offer Discounted Settlements to Alleged P2P Users (February 14, 2007)
• Lawyer who Fights the RIAA Speaks Out (July 21, 2006)
• Dutch Court Rules ISPs Need Not Disclose File Swapper IDs (July 17, 2006)
• British ISP, Tiscali, Refuses BPI Request to Disconnect 17 Users (July 12, 2006)
• RIAA to Students: 'Drop out of College to Pay Settlement'
• Gonzales Calls for 'Reasonable' Data Retention (April 21, 2006)
• Warner/RIAA vs. The John Does Trial to Start May 19 (April 20, 2006)
• One Man's First Hand Account of Being Put Through Hell by the RIAA (April 14, 2006)
• How the RIAA Litigation Process Works (April 5, 2006)
• Canadian Federal Court of Appeal Reaches a Stalemate as to Whether and How Discovery of P2P Users' Identity can be compelled (May 19, 2005)
• Canadian Federal Court Rejects CRIA Motion to Disclose IP Addresses of P2P Users (March 31, 2004)

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Web site operators posting sexually explicit information must place official government warning labels on their pages or risk being imprisoned for up to five years, the Bush administration proposed Thursday.

Sources: CNet | ZDNet | Computer World | Red Herring | ars technica

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Text of Westchester's Public Internet Protection Act

To avoid identity theft, businesses operating in Westchester County New York will soon need to turn on certain security settings for their WiFi networks if they are used to access financial information for their customers. The law stipulates that businesses must take "minimum security measures" that "include, but are not limited to: (a) installing a network firewall; (b) changing the system’s default SSID (network name); or (c) disabling SSID broadcasting." Other businesses operating open WiFi networks will be required to post signs to warn their customers about the perils of surfing unprotected networks. Penalties range from a warning on first offense to a $500 fine on third offense.

Sources: ars technica | San Jose Mercury News | Mid-Hudson News | WestChester County Press Release | Government Technology | Send2Press

Dale's Comment 1: This is a terrific pioneering county law. Unfortunately, one issue that jumps out when reviewing the "minimum security measures" requirements of the law, is that it does NOT explicitly require businesses that use WiFi transmission technologies to encrypt such transmissions with basic WPA, or other secure, encryption technologies typically built into all modern routers/firewalls when, for example, laptops wirelessly transfer information within, to or from an otherwise secured network. (Note: WEP encryption is not secure) While the act’s non-exclusive definition of “minimal security measures” may impute this as an obligation, the definition (and therefore the act) doesn't make it crystal clear to county businesses that there is a legal obligation to use encryption technologies when wirelessly transmitting personal information. This, in my opinion, is a significant impediment to achiving the county’s otherwise laudable goal. So, while this act should, if followed, protect personal information stored within a wired network situated behind a firewall, from external hackers, it doesn'’t explicitly protect information transmitted wirelessly throughout that network or to/from external computers accessing the network while such information is being transmitted.

Dale's Comment 2: In an e-mail exchange with a country representative, it was pointed out that the county may not have the right to legislate in the area of over-the-air transmissions in light of the federal preemption doctrine. Whether or not the FCC regulations can pre-empt local legislation mandating encryption of personal information over a 300 foot WiFi transmission is an interesting, if unclear, point. If anyone reading this has an answer or thoughts in this regard, please e-mail me.

Related Posts:

• FCC Rules Logan Airport Can't Restrict WiFi (November 6 , 2006)
• Schwarzenegger Signs Mandatory WiFi Equipment Warning Bill (October 3, 2006)
• Westchester County NY Law Requires Some Businesses to Secure Their WiFi Networks (April 21, 2006)

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"At the heart of the RIAA litigation process is the ex parte discovery orders obtained by the RIAA in virtually secret 'lawsuits' against a large number of "John Does". These cases are brought for the sole purpose of obtaining the names and addresses of the defendants. Once the information is obtained, the RIAA discontinues the cases, and then sues the people in separate lawsuits."

Sources: Recording Industry vs. The People | Digital Music News

• RIAA Wants U.S. ISPs to Offer Discounted Settlements to Alleged P2P Users (February 14, 2007)
• Lawyer who Fights the RIAA Speaks Out (July 21, 2006)
• Dutch Court Rules ISPs Need Not Disclose File Swapper IDs (July 17, 2006)
• British ISP, Tiscali, Refuses BPI Request to Disconnect 17 Users (July 12, 2006)
• RIAA to Students: 'Drop out of College to Pay Settlement'
• Gonzales Calls for 'Reasonable' Data Retention (April 21, 2006)
• Warner/RIAA vs. The John Does Trial to Start May 19 (April 20, 2006)
• One Man's First Hand Account of Being Put Through Hell by the RIAA (April 14, 2006)
• How the RIAA Litigation Process Works (April 5, 2006)
• Canadian Federal Court of Appeal Reaches a Stalemate as to Whether and How Discovery of P2P Users' Identity can be compelled (May 19, 2005)
• Canadian Federal Court Rejects CRIA Motion to Disclose IP Addresses of P2P Users (March 31, 2004)

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ABC, NBC, CBS and FOX, together with their affiliate groups and the Hearst-Argyle Television group of stations, have filed appeals in various federal courts challenging the FCC’s indecency standards and put out a statement this week to say so, decrying the record $4m of FCC fines made during the course of last month.

Sources: New York Times  |  The Register  |  First Amendment Center  |  Jurist

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Beijing Secondary People’s Court has begun to hear a lawsuit filed by Shanghai Busheng Music and Culture Company against Beijing Feixingwang Music Software Development Company, who is accused of software copyright infringement.

Sources: China Tech News

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Amidst growing complaints of potentially harmful security breaches and the recent filing of a class action lawsuit, French publisher Ubisoft has officially ceased its use of Starforce copy protection.
 
Sources: GameIndustry.biz  |  ars technica  |  MoneyControl.com  |  PALGN  |  afterdawn.com  |  Legit Reviews  |  neo seeker

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In response to Barker's Motion to dismiss, the RIAA has responded by claiming that "merely having a 'shared files folder' on one's computer, and thereby 'making files available for distribution', is in and of itself a "distribution" and a copyright infringement. I.e., even if the recordings were legally obtained, and even if no illegal copies were ever made of them, the defendant is still guilty of copyright infringement." The MPAA followed with an amicus brief in support of the RIAA. The EFF and others filed an amicus brief in opposition stating that the RIAA's argument is absurd because the entire Internet is nothing more than a giant network of hyperlinks making files available for distribution.

Sources: Recording Industry v. The People | P2PNet | ars technica

Related Posts:

• Oregon District Judge – 'Making Available' – Sufficient Grounds For Copyright Infringement (December 12, 2006)
• Elektra v. Barker: The Most Important RIAA Case in the Country? (April 18, 2006)

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Burst’s technology speeds up the delivery of audio and video files over a network. Burst.com has filed a counter suit against Apple claiming that the iTunes software, the iPod and the Quicktime streaming software all infringe its patents. The company was involved in a similar patent infringement dispute with Microsoft last year that ended with a $60 million settlement and a Microsoft license to the Burst technology.

Sources: CNet  |  ars technica  |  PC Magazine  |  PC World  |  The Inquirer  |  GameShout  |  Pocket-lint  |  Red Herring  |  MacWorld  |  silicon.com

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Princeton Professor Ed Felton, famous for revealing that SunComm’s DRM for music CDs could be defeated by holding down the shift key while inserting the music CD into your computer, says completely breaking/cracking High Bandwidth Digital Content Protection (HDCP) is “eminently doable”. HDCP is the DRM standard developed by Intel to control access to high definition content as in travels across DVI and HDMI connections (eg: between your HD set-top box or HD-DVD player and your HDTV).

Sources: Prof Felton’s Freedom to Tinker Blog | Prof Felton’s Freedom to Tinker Blog II | Engadget

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Text of Report
HTML Version of Report
The Electronic Frontier Foundation (EFF) has released version 4 of their “Unintended Consequences” report, detailing problematic side effects arising out of the Digital Millennium Copyright Act.

Sources: ars technica  |  Ed Foster’s GripeLog  |  Tech News  |  afterdawn.com  |  TMCNet  |  Internet News  |  TG Daily  |  Axcess News

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Ren Bucholz (EFF), David Alpert (Google) and Mark Stoller, have banded together to form a new Political Action Committee called the Information Policy Action Committee (IPAC) to lobby Congress for “pro-Geek”, “pro-technology” reform. Because the EFF is a 501(c)(3) tax-exempt charity, it can’t get involved in any electoral politics. The RIAA & MPAA are not barred by law from lobbying Congress. The founders of IPAC realized that “geeks need to be engaged in electoral politics in a direct way” as a tool to counter the multi-million-dollar lobbying efforts of the industry heavyweights. From the IPAC website:

We believe that technological innovation and individual creativity are vital to the future of this country. We believe that a prosperous and democratic society depends on freedom for all individuals to pursue scientific invention and artistic expression. Unfortunately, new, more draconian copyright and patent laws threaten to stifle these freedoms and restrict public participation in science, art, and political discourse.

Sources: IPAC  |  TWiT – see episode 49A  |  TWiT Podcast 49A: Interview with IPAC Founder Ren Bucholz

Related Story: IPAC Send Senators iPods: IPAC  |  Content Added to Senators’ iPods  |  Engadget  |  ars technica  |  Boign Boing

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Fox network has signed a six-year agreement with its 187 affiliated stations that will let it show reruns of its television programs on the Internet. The affiliates will be paid 12.5% after costs and Fox will be able to make 60 percent of its prime-time schedule available online the morning after the shows air.

Sources: Reuters  |  TechCrunch  |  L.A. Times  |  Business Week  |  Red Herring  |  Related ars technica April 25, 2006 article.
 
Dale’s Comment: While networks making limited amounts of content available over the Internet is all the rage these days, what is particularly interesting about this development is that this is the first long term, comprehensive revenue share deal by a major network with its affiliates on how they will share revenues derived from Internet sales of a substantial portion of network content. The exclusive rights granted to network affiliates and to syndicated content purchasers have long been a sticking point for networks that were otherwise interested in making their back catalogue of content available to consumers over the Internet. This could be an important precedent for the eventual availability of all network content over the Internet.

TiVo, flush with your victory over Echostar, PLEASE negotiate a deal with Fox, and the other networks, so we can purchase reruns via iVOD through our TiVos! I for one, would love to order up the first two Seasons of The West Wing that I missed years ago.

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