Well, that’s what (a lazy reporter at?) the NYTimes says. EMI to Cut Artist Roster and Close 2 CD Plants

EMI, which also produces the Rolling Stones and Coldplay, is doing better than the industry as a whole, where sales slipped more than 7 percent in 2003, according to estimates from IFPI, an anti-piracy trade group, because consumers continue to download music illegally from the Web. On Tuesday, music industry representatives said they would take legal action against 247 people for illegal file sharing in Europe, the first time that legal action has been taken outside of the United States.

The bulk of the EMI job losses stem from the outsourcing of compact disc and DVD manufacturing. [ […]

Music producers industrywide have been increasingly outsourcing the making and distribution of their discs. In July of last year, AOL Time Warner sold its CD, DVD and video manufacturing units to Cinram. Sony and the Bertelsmann Group still produce their own compact discs, but analysts maintain that it is only a matter of time before all the major recording companies outsource manufacturing and distribution.

“That’s where the music business will end up, without a question,” said Mark Harrington, an analyst with Bear Stearns in London.

EMI will also be cutting about 350 “niche and underperforming” artists from its roster, the company said, and combining some music labels and some marketing departments. The company did not specify which artists would be released. EMI let go about 400 artists and eliminated 1,800 jobs in 2002, with positive results.

Reading the whole article, there’s certainly a question in my mind what the discussion of the filesharing suits has to do with the rest of the story. Although I may just be biased, consider that all you have to do is substitute “workers” for “artists” and this just becomes an all too common story about corporate downsizing to maintain the bottom line…….

Wouldn’t want to break the law, now, would we? Making Music With Speak & Spell

Hacked musical instruments, and the distinctive sounds they produce, will be the focus of Bent 2004, a weeklong festival of circuit-bending music and art that opens Thursday at Spaceworks at The Tank in New York City.

“Circuit bending” is the art of modifying existing electronics, usually those found in children’s toys, to create new sounds and unique musical instruments. Festival events will include a concert series, a gallery exhibit of “bent” instruments, how-to workshops for beginners and experienced artists, and a family day for fledgling benders.

The idea for the festival was sparked by Spaceworks curators Mike Rosenthal and Daniel Greenfeld’s desire to host a hands-on musical event, one that visitors could participate in. Anyone can be a circuit bender, Rosenthal and Greenfeld insist. [emphasis added]

[…] “I want people to feel empowered and enthusiastic. I want them to go home and take apart all their toys,” said Rosenthal.

“Open those toys up. Spend some time with them. Cut up the circuits and hang them on the wall. Hook them up to speakers and listen to them. See what’s going on in there. Toys are cheap – there’s no reason to be afraid.”

So far, anyway…….

• A good one over at UserFriendly: April 01, 2004 UserFriendly

All the World’s a Soundstage as Audio Formats Evolve

Few paid music services use MP3 because, unlike most other formats, it does not have a built-in digital rights management mechanism to restrict copying and swapping, although companies can add that capability. That same trait, of course, has made the MP3 format wildly popular for ripping music from CD’s to compressed files and swapping them over the Internet.

But the surround-sound version of MP3 is unlikely to have much appeal to swappers because, unlike conventional stereo CD’s, the Super Audio and DVD Audio discs that contain surround-sound music use formats that prevent ripping.

Dr. Herre of the Fraunhofer Institute said he had just begun speaking with record labels about using the MP3 Surround format for legal downloading. The Recording Industry Association of America, which is pursuing an aggressive legal battle against music trading, has not taken a position on the format.

Another seeming barrier for surround sound in MP3’s or other formats is that the main devices using them - portable music players - have only two speakers: the left and right headphones. So some manufacturers view the issue of surround sound as largely irrelevant.

Feds Crank Up Heat on P2P; House panel approves copyright bill [IPNewsBlog has the DoJ press release]

The Justice Department said on Wednesday it has formed an intellectual-property task force to analyze how the department addresses issues like piracy of software, music and movies.

Led by David Israelite, deputy chief of staff and counselor to the attorney general, the task force will also recommend what the Justice Department should do in the future to combat unauthorized use of copyright material.

“I have asked the task force to look at ways the department can strengthen and improve our efforts to combat theft of intellectual piracy,” said Attorney General John Ashcroft.

[…] The task force was created in the wake of criticism by some members of Congress that the Justice Department has not done enough to crack down on digital piracy. The announcement took place on the same day that a House judiciary subcommittee unanimously approved a bill that would punish file swappers with up to three years in jail for first offenses, and up to six for repeat offenses.

[…] If signed into law, the ”Piracy Deterrence and Education Act of 2004” [H.R.2517] would be the first to punish file sharing with jail time. The bill also takes aim at camcorder copiers who sneak into film screenings. Anyone who “knowingly uses or attempts to use an audiovisual recording device in a motion picture theater” to copy a movie could face up to six years in jail.

Here’s the text of the bill. The CRS bill summary includes this provision, whose implications are a little difficult to track:

Amends Federal copyright law to make importation into the United States without the copyright owner’s authorization of copies and phonorecords of a work that have been acquired outside the United State an infringement of the exclusive right to distribute such copies or phonorecords, regardless of whether that work has been registered with the Copyright Office or recorded with the Bureau of Customs and Border Protection (BCBP) of the Department of Homeland Security.

CNet’s article: Ashcroft creates task force for copyright violations

Films: Have Hard Drive, Will Travel

For years independent cinema has been a big-city phenomenon, the non-Hollywood movies available only in major urban centers and — perhaps — on cable.

Now a New York-based company is trying to take art-house movies to small cities around the country by relying on digital projection. The company, Emerging Pictures, has sent computer hard drives to theaters in five cities to coincide with the opening on April 1 of the Full Frame Documentary Film Festival in Durham, N.C.

The hard drives, which can be connected to inexpensive digital projectors, contain 10 digital films from the documentary festival. The movies will be shown simultaneously in theaters in Grand Rapids and Kalamazoo, Mich.; Lincoln, Neb.; Charleston, W.Va.; and Sarasota, Fla., in addition to Durham.

The best ways to listen to MP3s in your car

Despite the fact that over 80 percent of Americans drive to work every day and millions have MP3 players, auto manufacturers and car stereo makers have done a rather dismal job of bringing digital downloads to the (non-information) superhighway.

If you want to take your music collection on the road, you have three basic options, and none of them is particularly good. Either you must connect your portable MP3 player to your car stereo (which inevitably requires wires, gadgets, and a fair amount of fuss) or you have to buy one of the MP3-friendly car stereo systems that installs a hard drive into the vehicle itself (which requires a considerable amount of cash). The low-tech alternative—burning a bunch of CDs—takes loads of time. Every option entails some sort of compromise, whether it’s inconvenience, price, or audio fidelity, so choosing the right system becomes a matter of picking the appropriate poison. Here’s a rundown of the possibilities.

Simply Simpson: Why pop songwriting’s not what it used to be - a look at the music business, sort of, but also a chance to slam Jessica Simpson and other pop poseurs. (Although these excerpts don’t show it, the article author does acknowledge the singer-songerwriters of the 1960s – ancient history to many, I know <G>)

Pop singers used to be mere entertainers; songwriting was largely the domain of professionals who rarely performed. Today, they want us to believe they’re auteurs—singers who are also capable of writing their own songs. […]

Why this shift? Strangely, the celebrity gossip industry of the late ’90s and early 2000s may be responsible. Artists, especially those who are expected to talk about their latest creative effort in People and on Access Hollywood, need a story to tell, and an auteur makes for a better interview. Marketing yourself as a singer who bares her soul is much easier than marketing a singer baring a songwriter’s soul

[…] More than ever, record companies are looking to sell artists as auteurs. From a business perspective, singer-songwriters can save record companies money that would’ve been spent to pay professional songwriters. Pop stars are able to cash in on the fat royalty checks earned from their songwriting credits and enjoy the recognition that they gain from their creative endeavors. And the camp of pop singers not as lyrically inclined can reap the same benefits by purchasing material from an independent writer and pawning it off as their own—a longtime practice in the industry, for which Elvis was infamous.

I have my copy of the book, but am too swamped to read it yet. For those of you who are, as well as those of us about to, Prof. Solum’s online book club is a terrific resource. So far:

• Monday, March 29–Preface, Introduction, & Chapter One (pp. xiii-30).
• Tuesday, March 30–Chapters Two & Three (pp. 31-52).
• Wednesday, March 31–Chapters Four & Five (pp. 53-80).
• Thursday, April 1–Chapters Six, Seven, Eight, & Nine (pp. 81-115).
• Friday, April 2–Chapter Ten (pp. 116-174).
• Monday, April 5–Chapters Eleven & Twelve (pp. 175-212).
• Tuesday, April 6–Chapters Thirteen & Fourteen (pp. 213-256)
• Wednesday, April 7–Conclusion & Afterword (pp. 257-306)

T-292-04 (Citation: 2004 FC 488) Decision rendered on March 31, 2004, IN THE MATTER OF BMG Canada Inc. et al v. Jane Doe et al (see Just In From Canada for news articles)

It looks like the judge really rips into the CRIA’s presentation – that they really failed to make the case at any level. (Update: Ernest’s reaction seems to be similar to mine: An Unenthusiastic Response to the Canadian Filesharing Decision)

On the basis of the foregoing, it is obvious that in my mind the plaintiffs have not:

• made out a prima facie case (their affidavit evidence is deficient, they have not made a causal link between P2P pseudonyms and IP addresses and they have not made out a prima facie case of infringement);
• established that the ISPs are the only practical source for the identity of the P2P pseudonyms; and
• established that the public interest for disclosure outweighs the privacy concerns in light of the age of the data.

Consequently, they have not met the test set out in paragraph 13 above.

On the other hand, there are indications that their pleadings might have worked if they had been more diligent. For example, against the privacy criterion:

In this case, the plaintiffs have a legitimate copyright in their works and are entitled to protect it against infringement. However before making the order, the Court evidently must be satisfied that the information about to be disclosed is reliable and should restrict disclosure to the minimum required for the plaintiffs to identify an alleged defendant. Any order made should also, having in mind the privacy interests of the defendants, be accompanied by restrictions and confidentiality orders as the Court sees appropriate. All of the ISPs have indicated that they can produce the required information if requested in a timely fashion. In this case the evidence was gathered in October, November and December 2003. However, the notice of motion requesting disclosure by the ISPs was not filed until February 11, 2003. This clearly makes the information more difficult to obtain, if it can be obtained at all, and decreases its reliability. No explanation was given by the plaintiffs as to why they did not move earlier than February 2003. Under these circumstances, given the age of the data, its unreliability and the serious possibility of an innocent account holder being identified, this Court is of the view that the privacy concerns outweigh the public interest concerns in favour of disclosure.

Or, the failure to establish that the ISP is the only source of the information includes instructions on how to go about doing so:

In this case, the alleged wrongdoers used software called KaZaA, KaZaA Lite or iMesh which they downloaded from websites by those names. The affidavits of Gary Millin and Kathy Yonekura do not at any point mention who operates these websites, where they are located or whether the name of the pseudonyms can be obtained from the operators of these websites. In the absence of such evidence the Court cannot make a determination as to whether or not the ISPs are the only practical source of information available to the plaintiffs.

Or, as Prof. Geist is quoted in the news articles, there’s recourse to the legislature:

The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution. Before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying. No such evidence was presented by the plaintiffs in this case. They merely presented evidence that the alleged infringers made copies available on their shared drives. The exclusive right to make available is included in the World Intellectual Property Organization Performances and Phonograms Treaty, (WPPT), 20/12/1996 (CRNR/DC/95, December 23, Page: 16 1996), however that treaty has not yet been implemented in Canada and therefore does not form part of Canadian copyright law.

So, interesting reading all around…

Update: CNet News’ Judge: File sharing legal in Canada; also, The Register – File sharers not guilty of copyright infringement - Canadian judge

BigChampagne and the record industry – Music labels use file-sharing data to boost sales [via Copyfight] [pdf]

Record-label executives discreetly use Garland’s research firm, BigChampagne, and other services to track which songs are traded online and help pick which new singles to release. They increasingly use such file-sharing data to persuade radio stations and MTV to give new songs a spin or boost airplay for those that are popular with downloaders.

Some labels even monitor what people do with their music after they download it to better structure deals with licensed downloading services. The ultimate goal is what it always has been in the record business: Sell more music.

“I know of a case where an artist had obviously gone with the wrong single, and everyone loved this other song they had on their record,'’ said Guy Oseary, Madonna’s business partner and head of her label, Maverick Records. “In the world of what we do, it’s always good to have real information from real fans.'’

Judge: Sharing music via networks legal in Canada

Making copyrighted music available for sharing on a computer network is not illegal in Canada, a federal judge ruled on Wednesday, handing the record industry a sharp setback in its international fight against file swappers.

Canadian record labels had asked the court for authorization to identify 29 alleged file swappers in that country, in preparation for suing them for copyright infringement, much as the Recording Industry Association of America has sued more than 1,500 people in America.

But the judge denied that request. In a far-ranging decision, the court further found that both downloading music and putting it in a shared folder available to other people online appeared to be legal in Canada.

“The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution,” Judge Konrad von Finckenstein wrote.

Nothing online that I can find yet at the Federal Court of Canada WWW site– here’s where the decision will eventually appear. For some background, CRIA’s press releases are here

Slashdot: Music Industry Loses In Canadian Downloading Case. The source article cited there includes the following:

Some lawyers were saying the music industry might have hurt its case through legal sloppiness, Akin said.

“They really didn’t have their t’s crossed and their i’s dotted. They would likely go back and assemble the evidence the judge said was missing. The judge said clearly there’s some tests that have to be met, and the record industry failed to meet those tests.”

Once they do that, the industry can resubmit its case. Until then, Canadian online music traders are free to keep swapping songs, Akin said.

Other articles: Toronto Star–Court rejects music copyright suit

“No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings,” von Finckenstein wrote in his 28-page ruling. “They merely placed personal copies into their shared directories which were accessible by other computer users via a P2P service.”

He compared the action to a photocopy machine in a library. “I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service,” he said.

CNews: Judge: File swapping not illegal

Update: see this later entry for the opinion and more news.

Siva asks a really important question (Why is it a university’s business to restrict file sharing?) as his way of pointing to to this Chronicle of Higher Education article: Many Colleges Fail to Create Antipiracy Policies to Curb File Sharing, Report Says Siva also points to the report, University Policies and Practices Addressing Improper Peer-to-Peer File Sharing, whose conclusion embeds a certain notion of “mission creep” for the business of universities that is troubling:

The problem of unauthorized P2P file sharing is a significant problem on many college and university campuses. Much of the activity may be unlawful, and it can interfere with the use of campus computer networks for academic purposes. The collective impact of unauthorized file sharing is believed to be harming the entertainment market from which file sharers wish to draw enjoyment, a market that includes creators and artists as well as companies. A concerted and sustained effort by colleges and universities to substantially reduce or eliminate unauthorized file sharing through multifaceted efforts — by continuing education activities, use of network management technologies, and the development of legitimate online entertainment delivery alternatives — holds considerable promise of success. The Joint Committee of the Higher Education and Entertainment Communities will continue to try to assist work in all of these areas. [emphasis added]

Jason Schultz has a great discussion of Posner’s "skillful Googling" quote over at Copyfight: Judge Posner: “Skillful Googlers” Reason to Preserve Privacy in Abortion-related Medical Records

But I hope this is the last day of weak postings here for a while (well, until I go on vacation next week!)

A big day yesterday – here are a few links to chase:

• Slashdot: IBM Files For Declaratory Judgement In SCO Case (See also SCO Uses 3rd Parties To Spread Claims In Germany)

• GrokLaw – IBM Seeks Declaratory Judgment of Noninfringement

• InfoWorld: http://www.infoworld.com/cgi-bin/redirect?source=rss&url=http://www.infoworld.com/article/04/03/30/HNscoknockout_1.html

• CNet: IBM seeks copyright judgment against SCO

Study: DVR adoption on the rise

The rising adoption of DVRs–which use a hard drive to record television shows–has much to do with the competition between cable and satellite television providers. Initially, satellite providers promoted DVR-equipped set-top boxes to match cable companies’ investment in video-on-demand, and now, the cable industry is being forced to respond, IDC said.

[…] While the DVR market in Western Europe resembles that of the United States, Japanese consumers are starting to look to combination DVR/DVD-recording devices. Those hybrids will see shipments of 11.8 million in 2008, adding up to nearly 40 percent of the worldwide market, with the vast majority of the shipments occurring beyond the U.S. market, IDC said.

Wonder how the broadcast flag will influence the sales of those devices in the US?

Will it get the same degree of scrutiny about legal and illegal uses that other technical innovations have? Oracle joins race to bring RFID to retailers and Oracle unveils next round of RFID solutions. For example, there’s this application: Passport Safety, Privacy Face Off, raising the interesting question of the extent to which "information will set you free"

An international aviation group is completing new passport standards this week, setting the groundwork for all passports issued worldwide to include digitized photographs that a computer can read remotely and compare to the face of the traveler or to a database of mug shots.

Supporters hope the system will banish fake passports and help fight terrorism. But critics say the standards will enable a global infrastructure for surveillance and lead to a host of national biometric databases, including ones run by countries with troubling human rights records.

[…] The ICAO has already settled on facial recognition as the standard biometric identifier, though countries may add fingerprints or iris scans if they wish. The standards body will vote on Friday whether to adopt radio-frequency ID chips, such as those used in Fast Pass toll systems, as the standard method of storing and transmitting the digitized information.

Raising the question: is embracing a strategy to get around CALEA by exploiting the “information services” exemption a winning strategy, or just one that gives the DoJ incentive to fight even harder to eliminate the exemption?: VoIP provider to block eavesdroppers

VoicePulse said the new feature will prevent electronic or traditional eavesdropping on customers’ phone calls. It encrypts the part of the call that travels alongside other data on the public Internet, the first time this approach has been taken by a commercial voice over Internet Protocol service provider (VoIP), according to VoicePulse.

VoicePulse President Ravi Sakaria said he believes the company’s competitors, which now include AT&T, will also make it standard to protect the data in calls from being captured by outsiders. He said it will ease privacy concerns, satisfying current subscribers and making voice calling over the Internet more palatable to potential business customers.

“Encryption will not cost extra, and we do intend to encrypt every call on all plans,” Sakaria said. “As a service provider, we feel that providing encryption is a requirement, not an option.”

The article, Fight Against Illegal File Sharing Is Moving Overseas, implicitly raises the question of how those countries that have not yet complied with the EU Copyright Directive might respond in the face of this initiative, particularly combined with the absence of “legal” alternatives in many European jurisdictions. The Mark Mulligan hyperlink takes you to his weblog entry on this subject.

The nature of the industry’s campaign - it announced no lawsuits in Britain or France, nor any in Asia - attests to the patchwork of copyright laws outside the United States. While the European Union has passed a uniform copyright protection law similar to that in the United States, it has yet to be ratified by all of the union’s current 15 member states.

The existing cases are being prosecuted under national laws, Mr. Berman said. He predicted that lawsuits would be filed in other countries, but said the timing is dependent on stricter enforcement of copyright protection.

[…] Critics of the lawsuits said the piecemeal approach would bewilder consumers, particularly in Europe.

“People won’t understand the message,” said Mark Mulligan, an analyst at Jupiter Research in London. “If you’re file sharing in Germany, you’re in trouble. If you’re file sharing in Spain, you’re fine.”

• Maybe the Music’s Just Lousy?

• On the IFPI lawsuits: French Hound Music Pirates (while ordinarily I would look upon this title as an indication of Wired’s ideology, the fact that it’s a Reuters news wire article probably is a reflection of the fact that it’s about a French announcement)

Although he seems to be trying to be even handed, it’s clear where Hiawatha Bray stands on technological alienation and the DMCA (for those who were there, recall the discussion of transparency at Alan’s talk yesterday): Software pirates chip away at gaming industry revenue [pdf]

Like other DVD players, the game consoles contain chips that restrict their functions. American PlayStations and Xboxes won’t show foreign-made DVD movie discs or play overseas-produced games. Want to play a cool game you saw in Tokyo? You must buy a Japanese version of the console to play it. And another thing – if you use a DVD burner to make a copy of a game, the copy won’t work.

[…] A mod chip is a piece of silicon that seizes control from a similar chip built into the game consoles. The standard chip contains software that sets all those annoying limits on the machine’s performance. But solder in a mod chip and install some software available for free on the Internet, and those restrictions disappear. Suddenly your PlayStation or Xbox can play any game produced anywhere in the world. You can use Internet file-swapping software to download dozens of games without paying a penny, or you can rent games at the local Blockbuster, make copies, and add them to your permanent collection.

“The modding of the XBox itself should certainly be legal; why shouldn’t I have permission to modify a piece of hardware I’ve paid for?” said Mark, a 33-year-old researcher in Iowa City who spoke on the condition that his last name not be printed.

Strictly speaking, he’s right. Modding a game console voids the warranty, but it’s no more a crime than flinging it against a wall. It’s your machine; do what you please.

Even game companies admit this. A Microsoft spokesman said that the company tracks the vendors of mod chips and takes legal action against them on a case-by-case basis. For instance, a company that simply sells blank chips that can be used to modify a console is doing nothing illegal. But if they sell the software that circumvents the game machine’s limitations, that’s a violation of a 1998 federal copyright law. Just ask David Rocci, a Virginia man who was sentenced to five months in prison last year for selling Xbox mod chips with illegal software included.

Privacy by Design: VOIP and the Golden Age of Government Surveillance?; from his class site

Of course, I assume the RIAA has secured the relevant business method patent on this approach: File-sharing lawsuits go abroad (IFPI press release)

The International Federation of the Phonographic Industry, a worldwide recording industry association, announced on Tuesday its initial round of lawsuits against individuals whom it asserts illegally share files of copyrighted music. The 247 suits against alleged that file sharers in Denmark, Germany, Italy and Canada mirror similar action by the Recording Industry Association of America–the results of which have gotten mixed reviews from analysts and researchers.

The IFPI said it plans to bring additional lawsuits in other countries over the coming months, after filing criminal complaints in Italy and Germany, and civil litigation in Canada and Denmark.

Here’s an excerpt to parse from Statement by Jay Berman, Chairman and CEO of IFPI

Ultimately, though, we have learned that education alone is not sufficient, and that some people persist because, like shop-lifters, they think they can ‘get away with it’. So we have decided that only the prospect of legal action is going to make those people rethink what they are doing.

Today we are making it clear that we are totally prepared to enforce the law, and we will start actions against those people who are breaking it by uploading hundreds of music files on to the internet. We will not stand by while thousands of people involved in the creation of music see their careers and livelihoods destroyed. The message is that people are at a real risk of being sued or prosecuted if they continue to rip off those who make music.

But it is worth reading, just to see how far someone can take a lucrative IP dispute: After 13 Years, Judge Dismisses Case on Pooh Bear Royalties

The Walt Disney Company prevailed on Monday in a 13-year legal dispute over royalties related to its Winnie the Pooh franchise when a judge dismissed the case, contending the plaintiff altered confidential memorandums and covered up the theft of documents obtained by a private investigator who sifted through the company’s trash.

Judge Charles W. McCoy of Los Angeles Superior Court wrote in his decision that the misconduct of the Slesinger family, which sued Disney in 1991 after contending the company cheated it out of royalty fees, was “so egregious that no remedy short of terminating sanctions” would adequately protect Disney and the justice system from further abuse.

[…] The Slesinger family said it intended to appeal the judge’s decision, the result of hearings held a month ago. The point of contention over the years has been that the family had not been paid royalty fees for Pooh videocassettes, games and DVD’s. Such a provision was not written into the contract with Disney, but lawyers for the family contended they were promised the fees anyway.

“The decision unfortunately sends a strong message to corporate America that it is O.K. for companies like Disney to steal and renege on its contractual promises,” the family said in a statement. “This is just one round in a very long and complicated relationship and another delay of justice.”

The two sides have been locked in a bitter and often contentious fight which, if Disney had lost, could have cost the company hundreds of millions of dollars. Over the years, the Slesinger family has been represented by nearly a dozen lawyers - three in the last year alone - including Bertram Fields, the well-known entertainment lawyer who has made a career out of representing Disney’s opponents. He abruptly resigned last summer without explanation. Most recently, the Slesingers were represented by Johnnie Cochran.

Weighing in on the idea that file sharing = music promotion, we have the following: Music sharing doesn’t kill CD sales, study says (Slashdot: Study: MP3 Sharing Not Serious Threat To CD Sales) – (the study, The Effect of File Sharing on Record Sales An Empirical Analysis)

For the study, released Monday, researchers at Harvard University and the University of North Carolina tracked music downloads over 17 weeks in 2002, matching data on file transfers with actual market performance of the songs and albums being downloaded. Even high levels of file-swapping seemed to translate into an effect on album sales that was “statistically indistinguishable from zero,” they wrote.

“We find that file sharing has only had a limited effect on record sales,” the study’s authors wrote. “While downloads occur on a vast scale, most users are likely individuals who would not have bought the album even in the absence of file sharing.”

The study, the most detailed economic modeling survey to use data obtained directly from file-sharing networks, is sure to rekindle debates over the effects of widely used software such as Kazaa or Morpheus on an ailing record business.

Here’s the abstract:

A longstanding economic question is the appropriate level of protection for intellectual property. The Internet has drastically lowered the cost of copying information goods and provides a natural crucible to assess the implications of reduced protection. We consider the specific case of file sharing and its effect on the legal sales of music. A dataset containing 0.01% of the world s downloads is matched to U.S. sales data for a large number of albums. To establish causality, downloads are instrumented using technical features related to file sharing, such as network congestion or song length, as well as international school holidays. Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates. Moreover, these estimates are of moderate economic significance and are inconsistent with claims that file sharing is the primary reason for the recent decline in music sales.

Recall the earlier work by Stan Liebowitz started out with this conclusion as well, but then reversed position. It will be interesting to see how this analysis evolves.

The Pledge of Allegiance: The PowerPoint version

Commentary from Findlaw: The Donald’s New Game of Trademark Monopoly: Can Trump Register the Rights to the Words “You’re Fired”?

Will he prevail in trademarking a phrase that only the nastiest of bosses dare to utter? Possibly - but in legal reality, The Donald will never fully “own” these terms of termination.

[…] Unlike copyrights, trademarks don’t give their owners unlimited rights to use phrases for all purposes. Indeed, trademarks were only designed to protect a merchant’s efforts to distinguish his brands from those of his rivals. As the law seeks to stop competitors from tricking consumers as to the source of goods, trademark rights only extend to phrases when used in marketing or advertising.

Unless a phrase is used to fool consumers, anyone is free to use it regardless of how unique it may be. Thus, even if Trump proves that “You’re Fired” is distinctive enough for a trademark, he will only win the exclusive right to market the phrase. Since he can’t get a monopoly on non-competitive uses, nasty bosses may continue to “fire” away without writing royalty checks to the man who “popularized” the expression.

[…] What’s the legal test? To get his trademark, The Donald must establish that the slogan carries a “secondary meaning” which identifies America’s most flamboyant entrepreneur. Put another way, Trump must show that Americans link this phrase directly to him - so closely that this connection has actually become part of its meaning.

Disappointment in the "new" versions of childrens’ books: Abridged too far

Furthermore, it’s clear that the cartoonification of both the text and illustrations of “The Wind in the Willows” is no accident, no amateur mistake. Taken as a whole, it appears the Great Illustrated Classics has a mission, that being to make all the classics as accessible, and ultimately as vacant, as a third-rate comic book. There must be good marketing in that, since commerce and busy parents don’t always have time for art.

It’s painfully ironic that today’s children – whose alarmingly low reading rates are the subject of endless educational debates – are nonetheless willy-nilly expected to read the classics to themselves earlier than children of any previous generation. ABDO has created a self-perpetuating marketing niche. The more parents buy their series, the less reading aloud will go on, so the more children will fail to gain the sophisticated literacy it would take to read the original for themselves, so the more they will need watered-down versions. Even if these watered-down versions go unread, there will be well-meaning parents who will buy them anyway, hoping.

There’s another force to be reckoned with in this process, and that is the Walt Disney Co.

If the Great Illustrated Classic of “The Wind in the Willows” is actually faithful to anything, that would be the many animated versions that have spun off from Grahame’s book over the years. When Disney ate Milne’s treasure, the evidence was everywhere. There are the trademark cartoon figures; there is the text that retells the popular cartoon more than Milne’s stories. Fittingly, the Disney versions are to be found under “D” in our library’s children’s section. Under “M” you may, if you are lucky, find “The Complete Tales and Poems of Winnie-the-Pooh,” by Milne himself, intact and full of their original wit.

But the Disneyfication of “The Wind in the Willows” is more insidious. Because, as Evil Clones are wont to do, Disney’s Toad has gone back to wipe out the original, replace it with himself and cover his tracks. Only those who know to poke around will discern the plunder, and by that time the real treasure may be long gone. When our library’s vintage copies of “The Wind in the Willows” finally wear out, the Great Illustrated Classic, with its sturdy library binding will be all that’s left. And the only hint of the desecration will be the ambiguous but friendly “adapted by” bit on the title page. We’ll find Mole sick of cleaning. Toad flinging horrid little wagons. Mole sitting in his chair with a bubble of Badger over his head. Cleansed of “divine discontent and longing,” bereft of “poetry of motion,” with Mole never taking time out to smell Home, Little Portly neither lost nor found, and no Pan pipes to be forgotten by Rat or reader. Greatly diluted and poorly illustrated “classics” will be the literary legacy left to our children.

[…] Childhood is a sweet time, and an innocent one. But my child knows pain, sorrow, desires and their restraint, friendships tested and found true, people who let you down again and again and you love them anyway. Kenneth Grahame spoke from his heart, bestowing a gift that my daughter can open more and more fully each year. My daughter deserves nothing less than the gifts of artists. What I want for her is precisely what the Great Illustrated Classics wants to leave out. The unfathomable mystery of intimacy and glimpses of its inner workings. A taste of the dangers of the world. The jaw-dropping beauty of language. The heartbeat of the artist.

Beware the white binding with the red and black letters.

• Prince Opens Online Music Store

  Prince’s love-hate relationship with the mainstream music industry takes another turn today as he opens his online Musicology Download Store (www.npgmusicclub.com), turning his back on download services like Napster, Rhapsody and Apple’s iTunes.

  The move comes a week after Prince appeared to be cottoning to an industry he once compared to a form of slavery, announcing that he would team with Sony Music Entertainment’s Columbia Records to release his new album, “Musicology.”

  […] Most artists receive a part of the 65 or 70 cents that their labels receive from a 99-cent download sale at online stores, said Josh Bernoff, a vice president at Forrester Research. He said Prince could sell half as many songs through store and still make more money than through sales at a store like iTunes.

• A Web Refugee Turns to Music and Says, ‘The Sky’s the Lid’

  Jeffrey T. Arnold his seen his future - in a soda cup.

  About 16 months ago, Mr. Arnold, a co-founder and former chief executive of the WebMD Corporation, was visiting Los Angeles when a colleague showed him a lid for a 34-ounce plastic soda cup. Tucked inside a transparent pocket were several coupons offered to customers at a convenience store. Mr. Arnold said he was dumbfounded.

  “I said, ‘Forget the coupons. What if this was entertainment? What if it was music on CD’s or movies on DVD’s or games?’ ” Mr. Arnold said. “I thought, ‘If this was entertainment, this could be a blowout.’ ”

• Leisure Pursuits of Today’s Young Man

  Note to the television networks: Pete Brandel is not missing. He’s right here, but like a lot of other 20-something men he’s just not watching as much TV.

  Mr. Brandel, a 24-year-old real estate agent in Chicago, says that these days he looks to the Internet for news and entertainment. Television, he says, is bogged down by commercials and teasers that waste his time.

  “I’ll go to the Comedy Central Web site and download David Chappelle clips rather than wait to see them on TV,” he said.

  The television industry was shaken last October when the ratings from Nielsen Media Research showed that a huge part of a highly prized slice of the American population was watching less television.

• A documentary look at the biz: Seeking Fame With Amps and Attitude

  For seven years, she followed both bands, interviewing their members and capturing their on- and off-stage triumphs and catastrophes, and a result is one of those heaven-sent narratives, like “Hoop Dreams” or “Startup.com,” in which the contingency and chaos of events coalesce into a resonant and satisfying story.

  If universities ever start graduate programs in rock stardom, “Dig!” will surely be a cornerstone of the curriculum, for it works as both an instruction manual and a cautionary tale. It’s like an extended gloss on that exuberant, cynical Byrds song that begins, “So you wanna be a rock ‘n’ roll star, well listen now, to what I say . . . ”

Between the ESD Symposium and teaching responsibilities, it’s going to be a light day for me.

A couple of quick things

• IPNewsBlog points to Lawrence Solum’s cite of The Myth of the Software Patent Thicket: An Empirical Investigation of the Relationship Between Intellectual Property and Innovation in Software Firms – something to take with me for the low energy points of the day

• While you’re over at Legal Theory Blog, take a look at a little pedagogy from Prof. Solum: Legal Theory Lexicon: Public and Private Goods

• Wired on E-voting: How E-Voting Threatens Democracy – a call for physical verification of votes in e-voting systems

• As Ted Rall pointed out last week, you may have freedom of speech, but no one says you have the right to actually be heard, apparently – from today’s NYTimes: Keeping Intellectual Borders Open
  

  Last September, the Office of Foreign Assets Control — part of the Treasury Department — made a surprising ruling. Publishers could publish works by authors living in certain countries, including Iran, Libya, Sudan and Cuba, but they couldn’t edit them. Those countries are subject to American economic sanctions, and the office decided that to consult with an author about a manuscript was against the rules. This was a novel interpretation of the International Emergency Economic Powers Act, which explicitly exempts informational materials from economic embargoes. Naturally, the ruling had publishers and authors up in arms.

  The Treasury Department needs to remove this inappropriate restriction and do so promptly. Its practical effects do nothing to penalize the governments of sanctioned countries and everything to harm the very people who are most interested in a free and open exchange of literary and scientific ideas. This ruling is part of an unwelcome pattern since 9/11. In the name of security the administration has too often reacted in ways that diminish America’s role as a central exchange in the marketplace of ideas. Visas for foreign scientists, graduate students and artists have been unnecessarily restricted. The movement of American scientists has been restricted too.

  There are many weapons in the war against terrorism. One of the most powerful is the enlightened, rational values that America has come to stand for. Ideas pose no risk to us until we begin to try to control them.

It’s time to take it to legislators that think hamstringing the use of tools (and asking me to pay for it) is the solution to problems that they’re too lazy to put real thought into solving: Congress Moves to Criminalize P2P (see also Donna’s rundown: Funding the War on Filesharing and Errata)

Maybe these legislators think that the FBI should be spending their time on KaZaA instead of helping to explain the threat of terrorism to Condi Rice and the rest of this administration?

(Yes, I’m pissed - and no I haven’t read the bill yet, and yes, I know that these sorts of bills are generally just showboating, but showboating like this is too dangerous to leave unremarked)

Update: Ernest has put together a comprehensive look at the bill and its discussion, with the conclusion that Senator Hatch may end up spending a lot of time running away from: PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry. Maybe we can ask Larry Flynt to call a press conference to thank Senators Hatch and Leahy for their efforts? Any other pornographers out there who would make excellent poster children for this initiative?

Further update: PIRATE Act Introduced in Congress

Even further (and later!): Ernest just gives more examples of why it’s really important to think you federalize/"felonize" things — PIRATE Act - Wiretaps for Civil Copyright Infringement?

Light Weight

[B]laming the buyer of an original for all copies (and copies of copies, etc.) made from it just isn’t practical. To see why, suppose Alice has a big collection of music on her laptop. Then her laptop is stolen, or somebody breaks into it electronically, and all of her songs end up on millions of computers all over the Net. What then? Do you take all of Alice’s earthly possessions to compensate for the millions of infringements that occurred? (And if that’s the policy, what sane person will buy music in the first place?) Or do you let Alice off the hook, and allow burglars to defeat your entire DRM scheme? Nobody has a plausible answer to this question; and the Fraunhofer people don’t offer one.

Also, see yesterday’s DRM In Practice

Lessig’s Free Culture is also Free Content (too bad I can’t get BitTorrent working properly on my machine – although I’ve also ordered a dead tree version)

Today it is available for free via what looks like an attribution, non-commercial Creative Commons license: Free Culture: Free Content.

See also the reviews – and this earlier posting – update; here’s the Slashdot review

Well, Marci Hamilton says it about as well as anyone has – not that it matters, at least according to the intepretations given in the papers: The Court Hears Oral Argument in the “Under God” Pledge of Allegiance Case: Why the Court Should Reject This Pledge, and Why the Department of Justice Is Wrong To Support It

But his second point led to the most enlightening moment of the day. The Chief noted that Congress unanimously added the two words “under God” in 1954, implying that no one found it offensive then so how could it be offensive now, or perhaps worrying that the Court was in no position to quibble with Congress when it acted with such unity.

But Newdow responded with the undoubtedly true statement, “That’s only because no atheists can be elected to office.” And when he did, individuals in the audience began to clap.

They immediately proved his point. As an atheist, he is disenfranchised precisely because of his beliefs. He cannot be secure in knowing the school district will not try to inculcate his daughter in the majority religion, he cannot be elected to office, but more importantly, he cannot even argue a case at the Supreme Court–that most hallowed of courtrooms–without being heckled. The preference for “under God” cannot be separated from the desire to suppress conflicting beliefs.

[…] Not only Americans have been watching to see what position the Department of Justice and the President take in this case. The message the Department of Justice is sending to our enemies is that we indeed are godless infidels. Even the God in which so many profess belief is just a placemarker in a rote public ritual imposed on children every morning.

See Dahlia Lithwick’s description of the day: One Nation, Under Hallmark, Indivisible: Is the God of the Pledge of Allegiance a deity or a greeting card? – also, the NYTimes excerpts

UK Record Industry Warns Illegal Filesharers – Stop Or Risk Court Action (Also here)

UK record companies’ trade association the BPI (British Phonographic Industry) this morning unveiled research indicating that 8.0m people in the UK claim to be downloading music – 92% of them (7.4m people) using illegal sites.

[…] The BPI points out that illegal file-sharing is outlawed under the The Copyright, Designs and Patents Act 1988.

[…] The BPI has unveiled a new ‘instant messaging’ campaign over the internet warning uploaders that they face court action if they do not disable file-sharing software on their computers.

“Research reveals that the bulk of the problem of illegal downloading is facilitated by a small hardcore of people who are offering hundreds and often thousands of music files over the internet,” says Jamieson. “These ’serial uploaders’ are flouting the law and they are damaging British music and the British music industry.”

The report states the following, with this accompanying chart:

Advocates of file-sharing often argue that it is justified as it acts as a promotional tool. But this survey reveals that to be untrue. TNS are able to track the spending on music by downloaders and non-downloaders as they monitor a fixed panel of consumers every two weeks.

When TNS compared the spending of downloaders on music in 2003 versus 2002, they discovered their spending on singles was down by 59% and albums spend was down by 31%.

Overall, their expenditure on recorded music fell by 33%.

This was at a time when the overall UK record market was down just 0.8% by value.

These numbers nail the lie that somehow the record industry should be grateful for illegal downloading because of its supposed promotional value, says Jamieson. This research clearly illustrates that the illegal use of music on the internet is damaging the entire UK music industry

We cannot and will not allow that to continue.

Forget the moaning about CD singles – something whose pricing has always made me wonder where the suckers come from who buy such things. Notice anything funny about that chart? Any chance that their statistics get skewed by the inclusion of 12-14 year olds, whose purchasing and purchasing power depends upon older people? Granted, there’s not enough data supplied to do a rigorous assessment, but I find this chart a little spooky. Of course, maybe it’s just the reaffirmation of the thesis of the Merchants of Cool that’s so unnerving.

There’s a discussion on Slashdot about the Minnesota antitrust trial and the incriminating documents that have been put into the record (based on an NYTimes article posted here yesterday).

Reading through the comments, which focus upon the extent to which Microsoft’s activities have helped/hindered development in desktop computing, I came upon this discussion thread whose premise I have been living with these last couple of days as I try to get a talk together for next week (although I haven’t convinced myself that Keynote is really that much better either – there’s even a paean to FreeLance, the best thing I’ve ever found in this space, even though its graphing tools are weak and IBM has allowed it to wither along with the rest of SmartSuite)

Re:The Microsoft Damage. (Score:5, Insightful)
by pubjames (468013) on Thursday March 25, @04:53AM (#8665541)

I’ve contended for years that computing in general has been held back by Microsoft, not pushed forward, and this is an example of just how that has been the case.

I think the clearest demonstrator that Microsoft has held back innovation is PowerPoint. Because it is virtually installed as default on all business machines, everyone uses it. Microsoft has had little motivation to update it, so it still functions like a piece of software from ten years ago. But ask any graphic designer about it and they will free out about how impossibly sh*t it is for creating presentations, especially bearing in mind the amazing graphics computers are capable of these days. And yet where is the strong competition for PowerPoint? There isn’t one, because it is impossible to compete with the kind of product bundling Microsoft can get away with.

Can anybody out there suggest a good graphics/graphing package? PPT is just a tragedy, as I keep learning each day. I used to think that Phil Greenspun had the right idea with his efforts to put together a WWW based presentation tool (which I think has evolved into WimpyPoint) until I struggled with CSS – thoughts, anyone?

Windows ruling is biggest IP heist in EU history, claims MS

Microsoft intends to argue that both the server disclosures and the WMP changes amount to forced licensing, and that the court of first instance must therefore stay the Commission’s order pending the resolution of the case.

See also DOJ Calls EU Microsoft Decision “Unfortunate” – the cited Register article (EC erects toll booth for Microsoft’s open source rivals) may be a bit overblown, but it does raise an issue that needs addressing – see the close of this GrokLaw posting: Want to “Go” to Novell’s Brainshare and See Linus? – And a Word on Ms. DiDio’s “Independent” Survey

Ernest also posts on this problem at LawMeme: Does EU Microsoft Directive Threaten Open Source?

Nothing like seeing that some old chestnuts continue to thrive – although the implications about technical education are tragic: Calif. Officials Nearly Fall for H2O Hoax

The Associated Press
ALISO VIEJO, Calif.

City officials were so concerned about the potentially dangerous properties of dihydrogen monoxide that they considered banning foam cups after they learned the chemical was used in their production.

Then they learned, to their chagrin, that dihydrogen monoxide _ H2O for short _ is the scientific term for water.

“It’s embarrassing,” said City Manager David J. Norman. “We had a paralegal who did bad research.”

The paralegal apparently fell victim to one of the many official looking Web sites that have been put up by pranksters to describe dihydrogen monoxide as “an odorless, tasteless chemical” that can be deadly if accidentally inhaled.

As a result, the City Council of this Orange County suburb had been scheduled to vote next week on a proposed law that would have banned the use of foam containers at city-sponsored events. Among the reasons given for the ban were that they were made with a substance that could “threaten human health and safety.”

The measure has been pulled from the agenda, although Norman said the city may still eventually ban foam cups.

“If you get Styrofoam into the water and it breaks apart, it’s virtually impossible to clean up,” Norman said.

Sometimes, I just need a break……

The moviemaking of the future, today? Mr. Invisible and the Secret Mission to Hollywood

You might expect a little more brio from a writer-director who is making a summer blockbuster with almost unlimited creative control. […] It is in part a nostalgic homage to the movies of the 30’s and 40’s: the hammy fisticuffs and golly-inspiring proto-technology of sci-fi cliffhangers like ‘’Flash Gordon'’ alongside the snappy patter (and even snappier clothes) of the era’s noir thrillers.

But like the old serials it emulates, ‘’Sky Captain'’ is mainly preoccupied with the strange promises of the future. The astonishing things you will see in the world of tomorrow include: an immense, silvery zeppelin docking at the Empire State Building; an elephant that fits in the palm of your hand; a troop of giant robots marching down Sixth Avenue and the carpet at Radio City Music Hall. None of these things actually exist, though. Conran has not constructed a single set or miniature. Rather, they are computer images, built and animated in a virtual 3-D environment, or stitched together from photographs, which are then draped around the flesh-and-blood actors, who have been shot separately on an empty set in front of a blank ‘’blue-screen'’ background, along with those few minimal props with which they actually interact (a ray gun, a robot blueprint, a bottle of milk of magnesia). The film, in other words, is one long special effect with Jude-Law-size holes in it.

[…] For [moviemaker Kerry] Conran, the question, as he put it, was ‘’Could you be ambitious and make a film of some scope without ever leaving your room?'’ And so 10 years ago, Kerry Conran went into a room in his apartment to make a movie. In some ways, he is just now beginning to come out of it.

[…] They can do anything here. When one of Paltrow’s arms was cut out from a shot, they copied the other one, flipped it and pasted it back in. Since all the lighting was being done on the computer, they could paint the frame with light and noirish shadows, erase it all and then start again.

[…] Avnet said that the approach has allowed the filmmakers to make digital video truly look like physical film, and it does – but it’s a curious kind of verisimilitude, one that imitates the technical limitations of the past, the artful phoniness of the old films it emulates, while adding massive underwater battles. ‘’We have the ultimate latitude to reframe, play and change,'’ Lawes told me. ‘’It’s pretty much like playing God.'’

It is the flexibility of the setless, all-digital, centralized production process that, according to Avnet, has allowed them to make the movie for about half what it would have cost to make it traditionally.

OK, it’s a little early for Friday, but this really can’t wait. In the wake of several discussions of the peculiarities of the trademark system, IPNews Blog points to this rather peculiar trademark application by Douglas Carey of Florida: US Serial Number 78328499 (look it up here) "JC - Beat The The To Punch™." The graphic representation of the mark, associated with "Spritual Enlightenement," is at right. The database listing for the trademark is completely impenetrable:

To the USPTO: Friday, November 14, 2003
The following excerpts are not in exactly chronological order but reflect the spirit and nature of the events. They all took place on the above date. The statements below serve to document the confirmation of my recognition as the Second Coming of Christ. In addition, I am attaching several images taken from a microfilm received several weeks ago. This was the first tangible evidence, although numerous events prior to that time led up to this. I am prepared to produce the entire photo archive if necessary. I have notified a patent attorney in Dallas, Texas, asking for help drafting a patent to document this event and as a statement to the technological community about spirituality. I am attaching the text of the emails below as well.
I may have reason to believe that my communications with this attorney were not confidential, which raises the possibility that another may try to file this patent application before me. Given that there is no way to electronically file a patent application, I have no choice but to file for a trademark instead, as it is Saturday and I am in Thailand. I respectfully request that you forward this immediately to a USPTO employee of Buddhist faith ASAP. [emphasis added]

Addendum: the BNA Newletter points out that a German court has decided that the use of trademarks in <META> tags is not a trademark infringement.

Oh, Those Web Entanglements: British Spouses Deceived

It is becoming a familiar story on Friends Reunited, which has 10 million members — one-sixth of the British population — and which in a typical month is visited by more than 3 million people. Founded in 1999 to help people track down missing schoolmates, the Web site seems to have inserted itself into the culture here far more emphatically than have similar sites in the United States.

Not only has it spawned a host of sometimes facetious spinoffs — another site, Convicts Reunited, for instance, helps people trace former prison friends — but it has become an all-purpose people finder for long-lost relatives, co-workers and military buddies as well as school friends. Last year, Nielsen NetRatings, which analyses Internet trends, named it one of Britain’s 10 most influential Web sites.

Along the way, Friends Reunited has unexpectedly developed a secondary function. For some people — even married ones — it can serve as a kind of dating service that offers instant connections to ex-lovers.

In the wake of the EU antitrust decision against Microsoft (see this profile of Monti), CNet shows us that there are some US legislators who are perfectly happy with the US DoJ settlement – and are willing to go on the record saying so:

The European Commission’s investigation of the potential anticompetitive effects of Microsoft’s actions, specifically the inclusion of audio and video functionality in Windows operating systems, is difficult to understand in the context of the U.S. Settlement and the U.S.-E.U. Comity Agreement of 1991. Because this exact issue was raised and resolved during the U.S. settlement, it should not have been an area of concern for the E.U.

So, who are these representatives? All are members of the House International Relations Committee – here’s a list of the signatories:

• Robert Wexler – Florida 19th District
• Peter King – New York 3rd District
• Dan Burton – Indiana 5th District
• Gregory Meeks – New York 6th District
• Steve Chabot – Ohio 1st District
• Joseph Crowley – New York 7th District
• Jo Ann Davis – Virginia 1st District
• Adam Schiff - California 29th District
• Mark Green – Wisconsin 8th District
• Chris Bell – Texas 25th District

Update: Groklaw’s coverage of a related call for action, this time from the Senate –
Washington State’s Senator Murray Asks Bush to “Engage” the EU

MTV in Royalty Dispute With Producers in Europe

Casting themselves as a collective David to an American Goliath, British and other European independent record producers threatened on Wednesday to boycott MTV channels to protest a 55 percent cut in royalties paid for music videos.

In response, MTV said it would reopen negotiations to look for a way to defuse a problem that erupted this month after it said it would stop broadcasting videos from companies that refused to accept the reduced royalty payments.

[…] “MTV is owned by a vast U.S. conglomerate,'’ she added. “They are attempting to undermine British and European creativity by failing to give recompense for their endeavors.'’

That theme was echoed at the news conference by others like Paul Kernick of Sanctuary Records, who said MTV was “devaluing music and it’s not a deal we can subscribe to.'’ Jonathan More, a disc jockey and founder of Ninja Tune, an independent record producer, said of MTV’s negotiating tactics, “It’s a kind of Mafia way: do as we say, or the videos are going to get it.'’

The objections, moreover, seemed aimed directly at the perceived business practices of the American owners of MTV Networks Europe.

The joys of watching tricky rhetoric getting used on its creators.

BannedMusic.org [Via TLA]

Bannedmusic.org is a peer-to-peer collaboration that makes it impossible for the major record labels to ban or censor musical works. When record labels send legal threats to musicians, record stores, or websites, we will post the music here for download and publicize the censorship attempt. There is a clear fair use right to distribute this music, and for the public to decide whether current copyright law is serving musicians and the public, they need to be able to hear what’s being suppressed.

Currently listed are the Grey Album, Black on Black, and the Illegal Art compilation. Ernest will be (actually, is) pleased to note that it’s being setup as a BitTorrent distribution effort - one more reason for me to configure my machine (in my copious free time)

Note that DownHillBattle gives you a chance to participate:

Make this project stronger by joining our network of volunteers. In order to make informed decisions about the direction of copyright law and the future of the music industry, the public needs to hear all the amazing music the current system suppresses. We plan to do everything we can to make these works as widely available as possible, but we need your help. You can share our releases on mainstream filesharing networks, or burn CD-Rs to send to reporters and noncommercial radio stations, or help manage what music appears on this site. Whatever your interests, there’s a way for you to get involved. We expect to put out, on average, one or two releases a month once things get rolling, so however you decide to help, you certainly won’t be deluged with emails.

[via LawMeme] E-book vendors fail, Canadian reader left without easy access to books

The headline in the Montreal Gazette tells the story well: Versaware a casualty of Internet crash. Company went out of business in 2001, so software is no longer available to download on the Web. A Gazette reader complains of no longer being able to read the e-books he downloaded from an outfit called Xoom, which in turn relied on coding from Versaware. Both companies are apparently kaput after hard times or at least are very hard to find.

From the cited article:

Q. A few years ago, a company called Xoom offered electronic books coded in Versaware. I downloaded several of these books, but both Versaware and Xoom seem to have disappeared. Search engines often turn up references, but every time I try one I end up nowhere. I would like to get a Versaware reader, or any reader, that would work for the books I have. Can you help?

A. Versaware and Xoom were casualties of the Internet crash a few years back. Versaware built its business on distributing electronic textbooks and reference books encoded in a proprietary electronic format that required their software to read them. The files were known as Versabooks and the software was called Library Builder.

Unfortunately, when Versaware went out of business in 2001, no one picked up the pieces. The result is the software is no longer available to download on the Web. I wasn’t even able to find a copy on any of the many abandonware sites that archive obsolete software.

Your only chance to get a copy of the Library Builder appears to be by purchasing a product that was encoded as a Versabook and includes the Library Builder on CD. One such product is Simon & Schuster’s New Millennium Children’s Encyclopedia 2002. Amazon.com is one of several sites that still sell it. You might also be able to find a second-hand copy on an auction site such as eBay.

It’s been an all-Microsoft-EU kind of day, so I missed this NYTimes article the first time around: Newly Released Documents Shed Light on Microsoft Tactics

Even as Microsoft prepares to face penalties from the European Union, which accuses the company of abusing the Windows monopoly, new details about the tactics Microsoft used to secure a dominant position in software markets for nearly two decades are emerging in a state courthouse in Minneapolis.

[…] Among the documents introduced in court this week was a letter from June 1990 in which Bill Gates, Microsoft’s chairman, told Andrew S. Grove, the chief executive of Intel at the time, that any support given to the Go Corporation, a Silicon Valley software company, would be considered an aggressive move against Microsoft.

Other evidence presented by the plaintiffs’ lawyers at trial yesterday gave an account of how Microsoft violated a signed secrecy agreement with Go and showed that Microsoft possessed technical documents from Go that it should not have had access to.

These are stories that have been kicking around for years, but it’s gratifying to see that they are getting an airing on the record. Microsoft, of course, asserts that these documents have nothing to do with the case at issue, but that’s not really the point, IMHO

Update: Slashdot story: New Documents Shed Light on Microsoft’s Tactics

[Noted prominently in the associated Slashdot article]
Like It or Not, RFID Is Coming

Also, privacy concerns around RFID tags are a little like concerns about supermarket scanners years ago. When the laser scanners were coming out, everybody was saying, retailers are going to collect information about what you buy. And none of that happened. I think the situation with RFID is similar.

Hmmmmm

This latest round of RIAA lawsuits is acknowledged to be directed at university networks. As cited in the NYTimes article:

“We just put a little more focus on the users of university networks so it’s clear that everybody is potentially responsible for infringing acts online,” said Cary Sherman, the president of the Recording Industry Association of America, which filed the suits on behalf of record companies.

This Slashdot story (RIAA To Subpoena Univ. of Michigan Names) includes links to University of Michigan and University of Indiana reports that the RIAA has requested names to go along with the IP addresses that they have cited.

The text of the articles from the school papers suggest that this approach cannot be even approximately cost-effective for the RIAA.

“We want to be fair and reasonable. The intent here is not to make money, nor is the intent to win a lawsuit,” [the RIAA’s Jonathan] Lamy said.

“The goal is simply to send a message of deterrence, that this activity is illegal, that it can have consequences (and) that if digital music is what you want, turn to the great legal alternatives that are available,” he added.

A couple of the comments on Slashdot echo my own concerns, which is that the RIAA has decided to go after universities to get them to adopt the Penn State model.

It’s the university they’re after (Score:5, Insightful)
by Chief Technovelgist (759322) on Wednesday March 24, @10:04AM (#8655994)

I don’t think they care about the 8 students, or the fines - it’s the University of Michigan they are after. If they can convince large lawsuit-averse institutions like the UM, with networks serving tens of thousands of students, faculty and staff, to outlaw music-sharing, then they will have achieved their end. More bang for the buck - know what I mean?

---

Perhaps (Score:1, Insightful)
by Anonymous Coward on Wednesday March 24, @10:04AM (#8656002)

Perhaps this is punishment for not signing a deal with Napster and completely firewalling the campus dorms like SOME universities have done to appease the RIAA.

*cough*Penn State*cough*

RIAA exportion tactics, plain and simple.

---

no psu students (Score:2, Interesting)
by Anonymous Coward on Wednesday March 24, @10:25AM (#8656250)

I doubt you will see any Penn State students being sued since Penn State President Spanier worked hand in hand with the RIAA to get the students to subsidize the PSU Napster service from their activity fee. Now, all psu students support the RIAA regardless if they listen to music or not.

The Penn State paper has an editorial today that touches on another dimension of this:

Not to burst the happy trustees’ bubble, but wait a second – aren’t there other issues in and around the university community that could use discussion? What about the continued occurrence of sexual assaults on campus and around town? What about continuing to foster a healthy living environment for all students? What about the creeping tuition every year, lack of state funding and threat of privatization?

Not that illegal downloading isn’t an issue for the university, but these other issues merit more time than a big commercial for Napster. Linking Penn State and Napster is little more than an advertisement for the music company, which is having financial trouble competing with other online music services. Penn State already has corporate links with the likes of MBNA, Nike and Pepsi, but these are less prominent than the in-your-face Napster deal.

It may be important for the university to foster healthy relationships with corporations and leading businesses, but it is not necessary to flaunt and spend a lot of time on the Napster deal at a trustees meeting. The only conclusion? Penn State needs to stop applauding its own efforts and look at what matters to the students. We admit, illegal downloading, is, well, illegal. But, is it the huge problem the university and Napster are making it out to be?

No, it’s not.

But as a result, students are losing out because of the university demonizing the situation and acting as a martyr for the all the poor, starving artists.

Torvalds: Outside threats to Linux

When asked what he thought was the biggest threat to Linux, Torvalds said he was extremely confident that the operating system itself was robust but admitted problems outside of technical sphere may cause trouble further down the line. “The things that tend to worry me are software patents. When non-technical issues can be used to stop software development–that for me is the scariest part,” he said.

I’m not qualified to fill it out, but it’s worth looking at this: Music Survey

Welcome to the Pew Internet & American Life Project’s musician survey. The goal of this survey is to measure the impact of the Internet on songwriters and musical performers. Thanks so much for taking the time to help us better understand how the Internet affects your music, as well as how you communicate with other artists, artists’ organizations, and fans.

First, another round of RIAA suits (New RIAA file-swapping suits filed, RIAA sues lots more students, Record Industry Sues 532 More U.S. File-Sharers, More Lawsuits Filed in Effort to Thwart File Sharing, Music Group Sues Another Batch), and then a new trademark infringement attack – Super Heroes Sue Super Villains for Infringement (well, not really, I guess)

Escalating an already bad situation between the two high-powered groups, the League of Super Champions took its fight against the Legion of Supreme Crooks to the courts today, claiming that their arch-enemies were causing confusion among loyal readers of the Super Champions’ comics.

[…] The particulars of the lawsuits remain sealed, but are thought to center around the acronym “LoSC,” used by both super-hero groups when referring to themselves in shorthand.

Update: The Slashdot discussion includes a thread that estimates the risk of being sued, with this followup:

Re:Good odds, keep sharing! (Score:4, Insightful)
by panaceaa (205396) on Tuesday March 23, @10:20PM (#8652435)
(http://slashdot.org/)

Given your numbers an illegal file sharer can calculate their monthly financial risk from RIAA lawsuits.

Your numbers are:
Time [T]=8 months
Probability [P]=1/25290
Cost [C]=3000

With monthly financial risk = (P*C)/T, if each month you put away 1.483 cents, you would on average have enough money to pay your settlement fees by the time you were sued.

Now assume that the RIAA gets more aggressive and settles less, and through the courts gets a $1 million verdict in 100% of the people it sues (1977 people / 8 months). The monthly financial risk then is $4.94 a month.

So even if your punishment is $1 million, the financial risk of getting sued is less than any online music service with a monthly fee. It’s also less than 5 songs on iTunes a month, which probably isn’t nearly as many songs as Kazaa users download. Why does the RIAA think their legal efforts will convince people with such a low financial risk?

And here’s an interesting twist – why doesn’t an insurance company insure people against RIAA lawsuits for $10/mo so they can download as much as they want on Kazaa? Isn’t this similar to what Redhat is doing to protect its customers from SCO? I’d much rather pay $10/mo to download whatever I want without risk of being sued than pay the same money to MusicMatch for their inferior service. And if everyone did the same, peer-to-peer services would blossom again with tons of quality content from all genres imaginable.

Ernest considers how one might go about testing the limits of what constitutes "profane" speech, since it appears that the FCC is unwilling/unable to state a working definition: Howard Stern Should Ask FCC: What is Profane?

Wal-Mart Launches Online Music Store (the site – WindowsMedia 9 required – hence, this is a Windows-only store)

Wal-Mart Stores Inc. (WMT.N) on Tuesday tuned up its online music store, undercutting competitors’ prices as the world’s largest retailer officially launched a venture designed to boost its Web businesses.

The store, which sells digital downloads for 11 percent less than major competitors, expanded its catalog of artists by 50 percent, including exclusive songs from Jessica Simpson, 3 Doors Down, Shania Twain and others, the Bentonville, Arkansas-based retailer said.

Wal-Mart began testing the site, which allows customers to download a song from the Internet for 88 cents, in December.

From the system requirements page:

What file format do Music Downloads come in?
Music Downloads from Walmart.com are 128-bit WMA files. The WMA format allows record companies to protect their music by using Digital Rights Management (DRM) encryption. This means that music downloads are legal, safe, and easy to use. The 128-bit WMA files also offer superior sound quality.

Uh-huh!

There’s bound to be more on both sides, but this is the first piece I’ve come across: Music Industry Fails To Obtain Access To Material Today

In handing down his decision, Justice Wilcox told the applicants they were “flogging a dead horse” in their attempts to get immediate access to material currently being held by an independent law firm.

“Today’s outcome vindicates our position - that the seizure of materials using the Anton Piller order was heavy handed, unnecessary and indicative of the recording industry’s increasing desperation to crush peer-to-peer technology,” stated Nikki Hemming, CEO of Sharman Networks. “We have complied fully in US proceedings and will continue to do so this case under appropriate legal procedures.

“We are pleased with the outcome of today’s decision and are continuing to prepare our applications for leave to appeal,” stated lawyers for Sharman Networks.

The matter is back in court on 14 May, when further direction will be made. In the meantime, the material seized during the raids will remain secure and confidential at an independent law firm.

On 4 March, Justice Wilcox ordered the Anton Piller against Sharman Networks should not be set aside and that the material seized must remain secure and confidential with independent lawyers and an access regime be negotiated between the parties. Sharman sought leave to appeal on 11 March. The proceedings in respect of the leave application are next before court on Monday, 29 March.

The Register: Judge delays Kazaa case to clear up ‘mess’

Sadly, I will be out of town for this upcoming presentation for the MIT Communications Forum

movies in the digital age
Motion Picture Association President Jack Valenti presents his views on digital piracy
Thursday, April 8, 5-7 p.m.
Bartos Theater, Building E15

Should be a blast!

Update: Valenti to Retire From Film Association (press release of his talk, without the announcement)

Jack Valenti, who oversaw the creation of Hollywood’s movie-ratings system in the 1960s, said Tuesday he will step down as head of the Motion Picture Association of America, possibly within three months.

Further update (Mar 24) - Valenti Says He Will Leave Motion Picture Association

Triumph of the telcos

The catch, however, is that free telephone service requires a broadband, or high-speed, connection to the Internet. Local telephone companies turn out to be the chief providers of broadband, which means that they can profit from a consumer’s switch to Internet telephony. The calls may be free, but the bandwidth isn’t.

By manipulating bandwidth prices, Big Telecom can make Internet telephony seem attractive – or a prime source of profits. That’s because fans of Internet telephony still won’t be able to cancel their local service; they’ll still need it for the bandwidth.

In managing the pace of adoption of Internet telephony, telcos can expect assistance from regulatory bodies. To be sure, Michael Powell, the FCC’s chairman, has been campaigning for Internet telephony to receive an exemption from taxes and other incentives for it to gain ground. But states rely on telcos for a nice chunk of tax revenue and some are eager to impose on providers of Internet telephony the same “responsibilities” that traditional telcos carry. Among these are contributions to a fund for the 911 emergency calling system; emergency service in the event of an electricity blackout; and subsidies to low-income telephone customers.

[…] For these proponents, of course, the battle with Big Telecom is one front in a wider war on the oligarchies that dominate the world economy. But to the oligarchs themselves that war is a mere sideshow. The real fight is between Big Telecom and Big Cable, with both sides using Internet telephony as a weapon.

Black on Black [Via BoingBoing]

Announcing the release of Black On Black, a full-length reinterpretation of Jay-Z’s Black Album, as seen through the lense of Metallica’s Black Album.

Created by DJ Halfred, repping zone 6 of the ATL. Contact me at DJHalfred@yahoo.com, especially if you can host mp3 versions. Available on your favorite P2P network. Here is a bit torrent link to the whole album. (Go here if you don’t know what bit torrent is). Support artistic expression and copyright reform.

Big ups to DJ Danger Mouse for the inspiration, the Jigga Man for the enunciation, and Metallica for the instrumentation. Please don’t sue me. Peace.

Save the Orphans

Relying upon the silver lining in that dark cloud that was Eldred v. Ashcroft ("But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary"), this case challenges a fundamental change in the contour of copyright protection, and asks the district court to therefore provide “further First Amendment scrutiny.”

The fundamental change in the “traditional contours of copyright protection” is Congress’s abandonment (formally in 1976, but effectively only in 1992) of any formalities for copyrighted work, and in particular, the requirement that copyrights be renewed. In 1992, Congress passed the BCIA, extending the term of all works in their initial term in 1964 through 1978. The Sonny Bono Act then extended those terms in 1998. The CTEA was thus the first statute in the history of the US generally to extend the term of copyrights that did not, or would not, pass through the filter of renewal.

See LawMeme: Eldred’s Phoenix: Lessig and Co. File Kahle v. Ashcroft;
Slashdot - Kahle vs Ashcroft: Copyright Battle Continues

Despite the mistakes implicit in this Register headline: DVD Forum choses Apple music format for DVD Audio. As the Slashdot discussion (AAC Chosen For DVD-ROM Section Of DVD Audio Discs) points out, AAC is NOT an "Apple format," nor does it explicitly embed DRM.

On the other hand, it’s really hard to argue that DVD-Audio is anything more than an effort to put the genie back in the bottle – according to one Slashdot post, DVD-Audio devices only has analog outputs, although the followup comments suggest that the reasons are less sinister than one might expect.

The DVD-Audio FAQ, OTOH, leaves one a little less sanguine, although FireWire is cited. The guideline spec includes the following (note also that, ominously, copying of the content of the spec PDF is NOT allowed):

3.6 Copy Protection (Informative)

When a DVD player transmits the video/audio data through IEEE1394 Bus, there are some rules of the copy protection system. Refer to the scheme and its compliance rules.

Update: (March 24) Well, maybe not (yet) - DVD Forum denies ‘AAC for DVD Audio’ approval

This Supreme Court case will certainly have some influence: Supreme Court Hears Case of Man Who Withheld ID (NYTimes); Supremes Weigh In on ID Debate (Wired News); Hiibel Thumpers (Slate). I like Dahlia Lithwick’s closing paragraph:

We all seem to want to live in the world inhabited by most of the justices: where our names are private, and no one needs to incriminate themselves—unless some policeman decides they are suspicious. Then, there is a duty, a responsibility, a constitution-negating requirement that you come forward—to use Scalia’s formulation—and cooperate. This idea that the “suspicious people” (read: dark-skinned, poor, urban etc.) have some heightened duty to cooperate with the police is utterly backward, in light of the police’s historical treatment of them. It’s a shame Justice Clarence Thomas doesn’t speak today. One can imagine that he has at least some idea of what it means to hold “suspicious” people to a different constitutional standard.

How Appealing’s roundup: You have the right to remain elusive?

Tech giants abuzz over VoIP for cell phones

Sun CEO Scott McNealy announced Monday at the CTIA Wireless 2004 show here that Internet phone calling technology known as voice over Internet Protocol (VoIP) is playing a key role in a device the company is developing in an effort to eliminate the office phone.

[…] VoIP is a technology for making phone calls via IP, the world’s most popular method for sending data from one computer to another. After years of overpromising and underdelivering, VoIP is generating significant interest among telecom carriers, corporations and consumers, thanks to significant improvements in quality of service.

Carriers are already embracing VoIP as a way to cut traffic costs on international and long-distance calls, and it is expected to eventually replace the public switched telephone network, as big phone companies convert to IP-based fiber-optic networks. Currently, about 10 percent of all international voice traffic is classified as VoIP, although less than 1 percent of those calls are initiated on a VoIP phone.

Internet telephony services typically promise customers a smaller phone bill, virtually wiping out charges for long-distance and international calls. In addition, connecting phone calls over the Internet opens the door to advanced communications services that tie voice together with e-mail, instant messaging and videoconferencing–something Microsoft and others are already working to achieve.

As the RIAA elects not to let the new distribution technology promote music sales, companies are jumping in to exploit the halo effect of access to a good cut to promote their own products instead – will the RIAA get enough of a cut to make it worth their while? Want some Springsteen with that Big Mac?

In the latest blend of e-music with the food-and-beverage industry, Japanese electronics giant Sony is working out a deal to promote the upcoming launch of its download music service through fast-food chain McDonald’s, the Los Angeles Times reported Monday.

According to the newspaper, McDonald’s is expected to commit about $30 million in advertising to the partnership in exchange for unspecified discounts to license some songs from Sony’s new download service, Sony Connect.

[…] The Times said McDonald’s had been in talks on a similar marketing effort with Apple but switched plans after a last-minute overture from Sony.

The reported Sony-McDonald’s venture comes less than a week after cafe chain Starbucks unveiled plans to offer its customers an opportunity to record five songs for $6.99, plus additional tracks at 99 cents a piece, while waiting for their cappuccino or latte orders. Starbucks is teaming up with Hewlett-Packard for that project.

Last October, Apple announced a marketing alliance with PepsiCo to promote its iTunes service.

Here’s an article that suggest that management has something to do with it – a look at the fortunes of Capitol Records: Hands-On Leader Fuels Rare Revival in Record Industry

Andrew Slater is not your typical music industry executive.

A former manager and producer of artists like the Beastie Boys, Don Henley and Macy Gray, Mr. Slater now runs Capitol Records, one of the few labels in this unsteady era of file sharing that is not only stable but also has the rare distinction of substantial growth.

Since taking over nearly three years ago Mr. Slater and his very hands-on approach to music making — from rerecording parts of songs to dissecting new videos — have transformed Capitol from a languishing heritage label best known for the Beatles and Frank Sinatra into a company that can once again develop hit artists. He he has nearly doubled Capitol’s market share through the middle of March compared with the same period last year, the second-best performance of any label, according to Nielsen SoundScan, which tracks music sales in the United States. (Capitol had 3.24 percent of the market; Columbia, the leader, 6.9 percent.)

[…] Capitol’s revenue in the United States has more than doubled since Mr. Slater took over, said Jeanne Meyer, the senior vice president for corporate communication at EMI North America, Capitol’s parent company. (She would not provide specific figures, she said, because EMI does not break out its labels, which also include Virgin and Blue Note.)

Capitol’s and EMI’s recent strength has been caution, said Michael Nathanson, a media analyst with Sanford C. Bernstein who specializes in the music business. “Most of the industry has been in a boat going down a river without a paddle,” he said. “But what they’ve done in this uncertain environment, they’ve been very cautious in committing resources to things that won’t work,” not overspending for artists and keeping the number of releases under control. [emphasis added]

Apparently MyDoom is to blame: RIAA site disabled for five days. Although this really isn’t solving anything, this is certainly an object lesson in Charlie Nesson’s perception that connectivity carries with it the incentive to "play nice with others."

As the Recording Industry Association of America continues its push to shut down digital pirates, the industry group suffered its own defeat online.

According to data from Internet watcher Netcraft, the trade group’s site has not been reachable for nearly five days. The Internet performance measurement company believes that the root of the outage is a variant of the MyDoom computer worm.

“The current outage now exceeds the RIAA site’s four-day outage in July 2002, which was attributed to a DDoS,” or distributed denial-of-service, attack, Netcraft said Monday on its Web site.

Today’s Aaron McGruder’s Boondocks says it all: "When it comes to terrorism, isn’t almost good enough? Reelect President Bush."