Dale's Comment: Listening to this was my first introduction to Professor Moglen's ideas. I don't exactly know what to make of this speech. With the flair of an elequoent Baptist preacher he advocates on behalf of the free software movement. The speech has many interesting and compelling points.
But, my goodness, this substance of his speech seems to be, Open Source – all good, Closed Source – all bad, all the time. To my mind there is a place for both. Contrary to the underlying sentiment of this talk, I believe capitalism and software-for-profit is critical to global development and advancement. Open Source software is also, obviously, very beneficial to the world. Both have their place and importance.
Perhaps I haven't had enough exposure to Professor Mogeln yet. But while interesting, I found his talk, effectively dissing closed source software and its creators, eerily discomforting.
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.
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.
What's new to me from this piece is that Judge John Coughenour granted a motion request to subpoena e-mail providers Yahoo! and Google in search of Viodentia's identity. If that yields a relevant IP address, Microsoft is permitted to issue subpoenas to the ISP that operates or issued that IP address in order to determine the identity of Viodentia. Engadget says Viodentia claims to live outside of the U.S. If this is true, none of these subpoenas should amount to anything.
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:
…in seeking to limit pirate activity, emphasis should be on commercial harm to the rights-holder, rather than the act of sharing itself. As such, we recommend UK law be amended to include a private right to copy. Again, this will serve to increase legitimacy of the IP regime by legalizing actions that thousands of individuals already undertake without significant harm to the rights-holder.
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.
Both Visa and Mastercard have announced that it has stopped accepting transactions from AllofMP3.com, the Moscow-based, deep-discount, comprehensive music download service. It is the second most-used music download site on the Internet. It is popular because users can purchases songs how they want, in whatever format and bitrate they want without use-limiting DRM.
Mastercard justified this action by saying they do not "tolerate the use of its network for illegal activity." AllofMP3's notes that what it does is not illegal in Russia – and so far the Russian courts have upheld this view.
"The company believes the action taken by the world’s largest payment processors is arbitrary, capricious and discriminatory because Visa and MasterCard lack the authority to adjudicate the legality of AllofMP3’s activities and its determination that the company’s activities were illegal is patently erroneous and without legal merit. AllofMP3 has not been found by any court in the world to be in violation of any law."
"It is evident that Visa and MasterCard made the decision on factors other than legal grounds since the decision was not based on an adjudicated verdict by any court in the Russian Federation or, for that matter, anywhere in the world. To disqualify AllofMP3 based on a payment processing company’s whim is irresponsible and sets a bad precedence."
AllofMP3's immediate response was to start giving away music free to all-comers. It is considering talking legal action against the credit card companies. Some reports have said that it is considering moving to an all-advertising business model.
Dale's Comment: Despite the many actions of governments and courts around the globe, this is clearly the first real nail in AllofMP3.com's coffin. The major labels should establish a virtually identical service and charge up to ten times the price AllofMP3 charges and honest users like me would flock to their service. AllofMP3.com fills a critical need for honest music purchasers – a service where songs can be purchased where the user is not restricted as to the player she wishes to play the music on nor is she limited to the number and type of devices and services she can play her music on.
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
The final watered-down law requires that Apple and others with proprietary music DRM formats merely respond to competitive requests for information necessary to make their products compatible with proprietary formats – at the expense of the company requesting interoperability. This is very different from the original proposed law that would have permitted consumers to break the proprietary DRM if Apple (or others) did not permit/work with competitors to develop interoperable products.
In this interesting piece, Princeton Professor, Ed Fulton does an admirable job of outlining both sides of the ‘Net Neutrality debate and argues that, perhaps, leaving well-enough alone (legislation-wise), for the time being, may be the best means of meeting the objectives of ‘net neutrality advocates.
The July 3rd “This Week in Tech” podcast includes (at time index 2:39) a clip of the Senator Ted Stevens, Chairman of the Senate Commerce Committee, explaining his [mis]understanding of the ‘Net Neutrality issue and now the Internet works. Amusingly, he blames commercial video downloading for causing his e-mail to take 5 days for delivery. Leo and his guests have an interesting discussion/debate on “Net Neutrality” for the next 25 minutes or so of the podcast. For a more entertaining, and surprisingly understandable, description of the ‘Net Neutrality issue, see this amusing AskNinja.com skit on Net Neutrality.
Text of U.S.S.C. Grokster Decision I link to several “one year after” stories. The essence of these stories, as anyone who has paid attention over the last year knows, is that, while the law suits may continue, and the content industry legal tactics may be changing, Internet-based file sharing not only continues but has increased.
Dale’s Comment: As has been the pattern of the content industry for a century, fighting new technologies may stem the inevitable tide for awhile, but in the end, the content industry will have to adapt its business models to the Internet era. As with all the technologies they opposed in the past (player pianos, FM radio, VCRs, cassette tapes and more), the content industry will, of necessity, embrace consumer-friendly and fair Internet music distribution business models and, despite themselves, will likely be even more profitable when they do. The question is, how long will they persist with this futile battle.
The original proposed French legislation would have, among many other things, forced Apple to open up iTunes DRM to third-party licensing (or legal hacking) so that consumers can play purchased in one on-line music site on portable music devices and computers that are designed to work with another music store. The final bill out of committee settled on a system keeping DRM technologies entirely proprietary and unlicenseable when the copyright owner approves. This final bill is expected to be voted on in parliament on June 30.
Dale’s Comment: Apple and the RIAA/ifpi have one another victory in the ongoing war over consumer rights in electronic music purchases. With the control over the online music distribution industry that Apple and the music labels have, its unlikely that even the most successful artists with the most leverage would ever disapprove of this system. If an artist disapproved of the online distribution system, they’d likely be shut out. It’s hard to imagine Apple and the music industry would create an alternative rights system for such copyright owners to use if they “disapproved” of the current consumer unfriendly system. Denmark, Norway, and Sweden will be the next battle grounds.
Text of Committee Report A British Parliamentary Committee is recommending regulations that require digital content packaging/websites to clearly inform consumers as to exactly what they can and cannot do with digital content “protected” by DRM. At present, details of the DRM restrictions applied to digital content are typically buried deep within legalese-laden license agreements that are unpenetrable by the average consumer.
Sources:ars technica | BBC | P2PNet | The Register | Silicon.com | PC Pro | vnunet.com | ZDNet | Cathy Kirkman Dale’s Comment: It has been my belief from the day iTunes launched, that its success has been largely due to the fact that consumers have no idea that the songs they purchase on iTunes will not be playable on competitive devices they buy in the future, that they cannot legally sell their music, give it away, or will their music library (purchased for thousands of dollars) to their heirs when they die. A requirement that a company stamp a warning label such as “Not Playable on Your iPod” on the back of locked-down CDs would go a long way towards ensuring content owners think twice before imposing restrictions that are clearly counter to the reasonable expectations of their customers.
The Chinese government has passed a new regulation to ban the uploading and downloading of Internet material without the copyright holder’s permission. The production, import and supply of devices that are capable of evading or breaching technical measures of copyright protection and technical services are prohibited under the regulation. The new regulation provides for a fine up to 100,000 yuan (12,500 U.S. dollars) and confiscation of computer equipment for those who breach copyright.
IPAC is taking aim at Senator Orrin Hatch who, among other things, has advocated jail time for song downloading, in the upcoming Senate races. They have launched the website FireHatch.com. IPAC is supporting Pete Ashdown, who signed IPac’s Statement of Principles. Pete founded the oldest ISP in Utah.
Translated Text of Key Article 7 of Bill (courtesy Freedom-to-Tinker.com) After much fuss, Article 7 of France’s new Copyright Bill introduced by the lower house on February 21, may have been gutted by the Senate Commission on Cultural Affairs. Among other things, that article had required DRM makers to allow anyone to build interoperable technology.
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.
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.
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.
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.
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.
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.
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.
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.