Podcast Episode 73 Transcript
Episode 73 of Steve Gibson's Security Now podcast with Leo LaPorte has a terrific primer on the intertwined history of advancements in technology making it easier for consumers to copy content, fair use, the lobbying efforts by the content industry that resulted in U.S. copyright law amendments up to and including the 1996 WIPO Copyright Treaty, the DMCA implementing the treaty, and the detrimental effects these new laws have on consumer fair use rights.
Click here to listen to Episode 73 of the Security Now podcast. (This will download an 8.0 MB MP3 file that your default media player should load and play). For a higher quality version of this podcast click here (32 MB).
Following a similar suit by the BPI in July, AllofMP3.com's Moscow-based parent Mediaservices, Inc. has been sued by the RIAA for massive copyright infringement in the US District Court for the Southern District of New York. According to the New York Post:
The RIAA is seeking $150,000 for each instance of copyright infringement. That equates to an astounding $1.65 trillion for the five-month period in question.
Wow! I suspect they'll have a little trouble collecting this damage award if successful!
Interestingly, along with the damages award, the suit seeks court ordered control of AllofMP3.com's domains. Given the global nature of the Internet, it will be interesting to see if a court would grant such a prayer for relief. Mountainview California-based Verisign operates the domain name registry for the .com domain space.
AllofMP3.com has long claimed that they are in full compliance with Russian law and pay licensing fees on all music sales to Russia's equivalent of the RIAA, the Russian Organization for Multimedia and Digital Systems (ROMS). The RIAA's response is that ROMS has no authority to issue licenses to AllofMP3 and that AllofMP3.com would require licenses from record companies to legally sell downloadable music – which it does not have.
Dale's Comment: Aside from the astronomical damages request, what intrigues me is the global implications of an order to transfer the domain. There has been much controversy at the United Nations over who should control the Internet and the Internet domain space. The U.S. has fiercely guarded its ultimate ability to control it. If such an order was made by a U.S. court at the behest of the U.S. music industry, and if Verisign complies, this might spark protests from nations around the globe.
Note: I have not yet found the claim online. When I do, I'll post it here. Most of the stories online are all repeats of the original AP story so there are not many details available at this point.
Sources: ars technica | techdirt | Associated Press| Out-Law.com | ABC News | PC Pro | Pocket-Link | New York Post | BBC | Playfuls | Red Herring | MP3.com
- RIAA Sues AllofMP3 – Seeks Domain Transfer and $1.65 Trillion in Damages! (December 21, 2006)
- AllofMP3.com Lives On Despite U.S./Russian WTO Agreement (December 10, 2006)
- Russia Agrees to Shut Down AllofMP3.com at U.S. Request (November 29, 2006)
- Danish Court Blocks AllofMP3.com (October 25, 2006)
- Visa and Mastercard Stop Servicing AllofMP3.com (October 18, 2006)
- Russia Implements Internet Piracy Law in Gambit to Join WTO (September 1, 2006)
- BPI to Sue AllofMP3.com (July 5, 2006)
- AllofMP3.com Responds to Recent Scrutiny (June 6, 2006)
- Russia-based AllofMP3 Launches DRM-free allTunes (March 29, 2006)
- RIAA's Next Big Target: Russia (December 27, 2005)
Motion to Dismiss Denied (December 11, 2006)
Text of Motion to Dismiss (November 2, 2006)
Last August I wrote about millionaire Shawn Hogan's decision to fight back against the MPAA's allegation that he illegally downloaded "Meet the Fockers". Last November I wrote about his motion to dismiss based on faulty copyright registrations
District Court Judge Thomas J. Whelan agreed that Hogan was factually correct but has nevertheless denied the motion to dismiss stating:
Courts take a liberal approach to errors in copyright registrations. Serious errors—even in the claimant’s name—do not invalidate copyright registrations in the absence of fraud before the Copyright Office or prejudice to the alleged infringer … Otherwise, the infringer would get a “free pass” to infringe, essentially because of a technicality.
Hogan has not even suggested that ither Universal entity defrauded the Copyright Office, nor has he shown prejudice dueto the error. Instead, he seeks to avoid addressing the merits of the copyright infringement claim by pointing out an error in the registration. Fortunately (for authors,claimants, and the general public), the Copyright Act does not require such rigid aherence to formalities.
Sources: Text of Motion to Dismiss | Recording Industry v. The People |
AllofMP3.com does not seem like it is willing to go silently into the night.
In response to Visa's and Mastercard's cessation of services to the site, AllofMP3 now uses a prepaid credit proxy, Xrost,which can, in turn, be paid by Visa or Mastercard (See AllofMP3's payment page as explained here).
This recent TechWeb article explains that the payment process is not exactly easy. Only the most determined are likely to work their way through the payment maze. See also this Wired Blog description of the process. Incidentally the Wired Blog claim about the "complete legality" of music downloading in Canada is nonsense (see my blog entry on the topic if interested)!
On another note, AllofMP3 has engaged a New York-based intellectual property attorney, John Kheit of Chadbourne & Parke, LLP. as a U.S.-based spokesperson, advocate and PR person. In a recent panel discussion Kheit asserted that AllofMP3 has not broken any laws, that it operates legally in Russia and pays 15% of all music sales to Russia's equivalent of the RIAA, the Russian Organization for Multimedia and Digital Systems (ROMS). Kheit claims that foreign rights holders could petition ROMS for payment but that record labels have specifically not requested such payments in fear of legitimizing AllofMP3.
The RIAA's response is that ROMS has no authority to issue licenses to AllofMP3 and that AllofMP3.com would require licenses from record companies to legally sell downloadable music – which it does not have.
Under the U.S/Russian agreement, Russia has until June 1, 2007 to modify its laws and clarify that such activity is illegal. Until it does AllofMP3.com can continue as is. AllofMP3.com says it will comply with any new laws put in place by Moscow.
Sources: DailyTech | ars technica | The Register | Digital Music | TechWeb | NewHouseNews | MosNews.com | AllofMP3.com Press Release
This was inevitable. I didn't expect it so soon.
Within days of TiVo's DRM being cracked, someone has automated the rather difficult to use TiVo Decode Manager and created an easy to use TiVo2Go application, without DRM, on Apple computers. The software automatically discovers local TiVos. With one mouse click shows are downloaded from the TiVo, DRM-free, to the Mac by episode, recorded date etc. The resultant Mpeg-2 files still need to be converted to a PC-usable format such as .wmv using a program like VLC. My guess is that it won't be long before the end-to-end process is fully automated.
Dale's Comment: I foresee TiVo-released DMCA take-down notices being sent to whoever controls thebenesch.com (the site hosting the program) in the near future!
Sources: Engadget | PVR Wire
Text of Copyright Amendment Bill 2006
Australia is set to amend its copyright laws to finally make it legal for consumers to record TV shows and to copy music they own on CDs onto their iPods and other portable music devices. Such copying is now illegal under Australian and British copyright law. The Copyright Amendment Bill 2006 passed through both houses of Parliament and most of it will become law by January 1. According to theage.com.au:
"It will legalise format shifting of materials such as music, newspapers, books, meaning that people can put their CD collection onto iPods or mp3 players."
But, and this is a big but, it will be illegal/infringing to breach a technological protection measure (TPM) to copy or format shift content you own. This pretty much nullifies the importance of this amendment beyond the CD format as virtually all content will be locked down with TPMs/DRM going forward. Too bad.
Importantly, the Australian Attorney General makes it clear in this FAQ that building up a library of programs recorded from TV broadcasts for a permanent archive is not permitted. I have argued for years that permanent archiving of TV shows (whether on VHS cassette tapes or TiVo) constitutes copyright infringement under U.S. and Canadian copyright law. Few have wanted to believe me. Well, the question is answered with clarity in the Australian context at least!
And one more thing, the bill makes it legal to sing "Happy Birthday" in public – an act which was also previously illegal in Australia! 🙂
Dale's Comment: While the CD-to-iPod amendment is a nice short term measure, the bill, overall, is anti-consumer in the long run. Australian's have a one-time get out of jail free card. If the past is any indication of the future, the prohibition against breaching TPMs for content owned by the consumer will be completely ignored by most consumers as it is patently unfair to preclude the purchaser of content from using it/reading it/accessing it on any device of their choosing. Hence, the law is set up to fail from the start – just as the previous prohibitions against copying failed to stop consumers from copying their music onto iPods.
Sources: theage.com.au 1 | theage.com.au 2 | The Australian | InfoWorld | Syndey Morning Herald | FAQ
Gizmodo, Engadget and others are reporting that the folks at SourceForge.net have successfully hacked the TiVo DRM using a program they call the TiVo File Decoder.
Dale's Comment: If true, expect a patch from TiVo soon! 🙂 Unfortunately for those of us waiting for the TiVo Series 3 software upgrade that was due out about now, my guess is we'll be waiting awhile longer while TiVo's engineers work at sorting this one out. 🙁
Sources: Gizmodo | Engadget | Engadget 2 | Crunch Gear | PVRWire | Megazone-TiVoLovers | PVRBlog | TiVoCommunity Forum | Daily Tech | ars technica
Text of Agreement
Visa and Mastercard halting service to AllofMP3 effectively shut it down. In the face of the credit card departures, AllofMP3.com said it would move to an advertising supported model. Now Russia and the U.S. appear to have reached an agreement to shut it down – or did they?
ars technica and others are reporting that AllofMP3 says it will not be shut down. Instead it says Russia agreed to certain copyright reforms that AllofMP3.com says it will comply with. Even if this is true, AllofMP3 could never be what it was. If the reported agreement is implemented by Russia, any new AllofMP3.com would be as close to its current incarnation as today's Napster is to its original form.
As of the time of this post, AllofMP3.com was still up and running.
Dale's Comment: This is a sad day of sorts. While the legality of AllofMP3 was always murky, its success (second in world-wide sales only to iTunes) was a clear example of the fact that consumers are willing to pay a fair price for music from a site that services the users needs, if they are given fair rights to use the music they purchase. In the case of AllofMP3.com the user could chose the format they wished to purchase and there were no restrictions on the use they could make of the music. I look forward to the day the major labels learn this lesson and start offering DRM-free music for sale to honest users under fair terms.
Sources: TechCrunch | CNet | ars technica | Inquirer | The Register | ABC News | ComputerWorld | PC Magazine | MOSNews | MP3.com | Techwhack | Techdirt | ZDNet | Macworld | DailyTech
Universal Music Group has sued Myspace for providing a transcoding service. Myspace users upload videos to their MySpace account and Myspace transcodes them into formats playable by its users. Alleging that MySpace "encourages, facilitates and participates in the unauthorized reproduction, adaptation, distribution and public performance,", UMG is seeking an injunction and unspecified damages, including up to $150,000 for each unauthorized music video or song posted on the Web site. Until last week the two were in licensing discussions. To paraphrase Clausewitz, lawsuits such as this are just business negotiations by another means.
Dale's Comment: This is an interesting claim. It may very well turn on the facts. As I understand them, MySpace is agnostic as to what the content is. It has taken some steps to limit infringing uploads. In this case its servers accept user video uploads, examine the format, if not a supported format they then transcodes it into a playable format. This seems to be similar to what YouTube and other video hosting sites do. But YouTube signed a licensing agreement with Universal (and others) after being threatened with a lawsuit. If Myspace fights this, it will likely argue that it is an ISP, and all they are providing is a tool that can be used by their users for legitimate or illegitimate purposes. Assuming that MySpace is otherwise responding to Universal's DMCA take-down notices, this transcoding service may very well fall within the DMCA's safe harbour.
Sources: TechCrunch | Reuters | Yahoo! News (AP) | Forbes | *Law.com | VNUNet | MTV | CIO Today | Out-law.com | PCPro | Silicon.com | BBC | CNet | DRM Watch
Text of Report
The UK think-tank, Institute for Public Policy Research (ippr) has released a study, “Public Innovation: Intellectual Property in a Digital Age” where, among many other things, it recommends that U.K. citizens should have the right to copy their own content for their own personal use – something currently prohibited in the U.K. It concludes:
The BPI had come to the same conclusion earlier this year. As it stands now millions of U.K. citizens are breaking the law when copying their purchased DVDs or CDs onto their computers and iPods or creating compilation tapes of their own music. The existing law is silly. Kay Withers, one of the report’s authors, said:
The idea of all-rights reserved doesn’t make sense for the digital era and it doesn’t make sense to have a law that everyone breaks. To give the IP regime legitimacy it must command public respect.
In the U.S. personal copying for private use is enshrined in law as part of their fair use doctrine. In exchange for paying levies on blank media, the private copying exemption contained in section 80(1) of the Copyright Act makes it legal for Canadians to reproduce musical works for private use.
As Michael Geist and others have recommended, Canada and Britain should explicitly make copying of purchased content of any type (audio, video, text) for private use legal – without a media levy and without penalties for circumventing DRM/TPMs to do so. Any click wrap/shrink wrap or other end-user license terms to the contrary should be unenforcible.
Sources: BBC | Engadget | Hexus | Pocket-lint | CIO | Times Online | UPI | Xinhau | Daily Tech | TechNewsWorld | TechWeb | Silicon.com | Guardian Unlimited | Variety | P2PNet | P2PNet | PC Pro | Playfuls | Washington Times
Effective September 1, 2006, Russia implemented new legislation to crack down on illegal distribution through the internet of text, music and video in mp3 format. This has been a key condition of the United States in order for it to support Russia's entry into the 149-country global trade organization.
Dale's Comment: It's to be seen whether the law will have any bite, whether it will be enforced, and whether it will have any effect on AllofMP3.com
Sources: JURIST | MosNews | All Headline News | Torrent-freak | Yahoo! News | IP Due Diligence
The European Commission is starting to move forward with a directive to EU countries to roll back levies on hardware devices. The levies were introduced in the 1960s to compensate artists for the fact that consumers used photo copiers and cassette recorders to make private copies of books, and records. They have been extended to all manner of devices that handle content in electronic form.
Sources: Link | Market Watch | Top VOIP News
The EFF and Canadian Internet Policy & Public Interest Clinic (CIPPIC) have launched a new grassroots organization called Online Rights Canada to promote the public’s interest in technology and information policy. They believe that Canadians should have a voice in copyright law, access to information, freedom from censorship and other issues that face Canadians in the digital world.
Sources: Michael Geist | P2P Net | CanOpenER | Slyck
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
In 1999, the Canadian Copyright Act was amended by adding Part VIII, permitting private copying of music for the “private use of the person who makes the copy”. In exchange the Canadian Private Copying Collective (CPCC) was established to collect levies on all recordable media (eg: currently 29 cents per audio cassette, 21 cents per CD-R and CD-RW and 77 cents per CD-R Audio, CD-RW Audio and Minidisk) and to distribute the levies to songwriters, recording artists, music publishers and record companies. The CRIA had spent 15 years lobbying for the levy. Apparently in response to the Canadian Federal Court’s preliminary decision in BMG Canada v. John Doe (since overturned in part), that “the downloading of a song for personal use does not amount to infringement”, the Canadian Recording Industry Association (CRIA) recently changed its tune [pun intended] saying to Billboard “We don’t want a private copying levy that, in effect, sanctions online theft”. Instead the CRIA is now advocating for Canada’s ratification of the controversial WIPO Internet Treaty which lead to the extremely controversial, consumer-unfriendly DMCA-DRM system in the U.S. The compromise reached in the 1999 amendment was, in exchange for the levy, reproductions of musical works for private use would not constitute infringement of copyright. Now as Canadian courts determine that this right may be inclusive of the right to copy music from P2P services, CRIA wants nothing to do with it.
Sources: Billboard | ars technica | Michael Geist | CPCC | .doc version of Billboard Article (from CCFDA) | CRIA | Copyright Act (Canada)
Related CRIA’s Own Study Counters P2P Claims
What Might Conservative Copyright Look Like?
April 2, 2006
With the new Harper/Conservative Parliamentary session starting in Canada this week, Michael suggests that the new conservative government approach to copyright reform should include the following three elements: (i) enshrined fair dealing/use rights should be illustrative (as in the U.S.) rather than a comprehensive list; (ii) eliminate the stricture of Crown copyrights; and (iii) legal protection for digital locks (ie: technological protection measures (TPMs) and digital rights management (DRM) schemes) should be approached with trepidation to guard against how TPMs are frequently used to limit interoperability of new technologies, impede new market entrants, and foreclose competition”.
Sources: Michael Geist’s Blog | The Hill Times Related Story: Tom Flanagan’s Creators vs. Consumers – Windsor Star
French consumers are not entitled to make personal copies of DVDs, even if they don’t distribute them, France’s highest court said today in a victory for film companies such as Vivendi Universal SA.
Sources: Bloomberg | PC Pro | afterdawn.com | CD Freaks | TMCNet | DRM Watch
This article argues that Digital Rights Managements hurts paying customers, destroys ‘fair use’ rights, renders customers’ investments worthless, and can always be defeated. Why are consumers and publishers being forced to use DRM?
Source: Security Focus
The Copyright Board of Canada last week released its proposed tariff for 2007 for the private copying levy. The numbers remain unchanged. Geist argues for either ensuring the levy covers all private copying or the levy should be dropped.
Source: Michael Geist
So says the content-related industry in its joint reply as part of the triennial review of the effectiveness of the DMCA.
Source: ars technica
Commentary: Cathy Kirkman | MIT Tech Review
Michael Geist chronicles the broadcast lobby’s funding of Canadian federal candidates and urges party leaders to take the following pledge:
No Member of Parliament who has accepted financial contributions or other benefits from (i) a copyright lobby group, (ii) its corporate members, or (iii) senior executives as well as (iv) a copyright collective shall serve as Minister of Canadian Heritage or as Parliamentary Secretary to the Minister of Canadian Heritage, nor sit on any legislative committee (parliamentary or standing committees) conducting hearings or deliberations on copyright matters.
Source: Michael Geist
The tariff Canadians pay on recordable compact discs and other recordable media to compensate recording companies for loss of music sales will remain in place, unchanged, beyond the deadline of Dec. 31.
Source: Globe and Mail
In this report the EFF describes why it believes that the third triennial DMCA rulemaking, currently underway before the U.S. Copyright Office, does not effectively address the concerns of American digital media consumers.
The All Party Parliamentary Internet Group (APIG) is to hold a public inquiry into the issues surrounding Digital Rights Management (DRM), including the degree of protection needed for both copyright holders and consumers.
Sources: The Register | APIG