June 11th, 2009

Napster and the "The more things change" rule

Posted by Denise Howell @ 9:05 am

Categories: Copyright, DMCA, DRM, Lawsuits, MGM v. Grokster, P2P, Video

Tags: Entertainment, Napster Inc., DRM, DMCA, Business Models, Denise Howell

Drew Wilson at Zero Paid points out that Napster celebrates its 10th birthday this month. The Globe and Mail takes a deeper look in its Download Decade series. In the last decade, iTunes, Amazon, and various subscription music services have demonstrated there’s a vast audience more than willing to pay for entertainment downloads given the right mix of value and convenience, though pricing and freedom from DRM remain sticking points. At the same time, lawsuits against individual alleged file sharers march forward, and the entertainment industry has not relented in its pursuit of what it perceives as Napster’s successors (e.g., Pirate Bay, Real DVD). Which prompts me to wonder: in the ten years since Napster sent the entertainment industry its wake-up call, has anything fundamentally changed?
[Update:] Or as Bob Lefsetz puts it: “So I just don’t understand this ten year period. What did the rights holders prove?”

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March 31st, 2008

Sparks fly over copyright at Tech Policy Summit

Posted by Denise Howell @ 12:09 am

Categories: Conferences, Copyright, DMCA, Lawsuits, Licenses, MGM v. Grokster, P2P, Patent, User generated content, Video

Tags: Tech Policy Summit, TiVo Inc., EFF, Copyright Alliance, UCLA, Fred von Lohmann, Matt Zinn, Doug Lichtman, Patrick Ross, Copyright

The group of copyright scholars and advocates gathered Wednesday at the Tech Policy Summit in Hollywood demonstrated that while copyright must function in a converged world, opinions on how it should function are as divergent as ever. The panel (pictured from left to right) consisted of Patrick Ross (Executive Director, Copyright Alliance), Fred von Lohmann (Senior Staff Attorney, EFF), Matt Zinn (VP and general counsel, TiVo), and moderator Doug Lichtman of UCLA Law School.

I. Copyright Policy

The primary bone of contention was the extent to which copyright law does and should leave room for permissionless innovation. Matt Zinn and Fred von Lohmann discussed the benefits of such a system:

Zinn: Fortunately, the Constitution got it right. Copyrights are not absolute rights. TiVo did not have to go to the rightsholders for permission [to build a product that allows flexible use of lawfully acquired copyrighted content]. If they’d had to, there’d be no DVR. With no DVR, there’d be no VOD.

Von Lohmann: In recent years, the law has begun to appreciate the value of organically derived genius, the wisdom of the crowds. The copyright system is doing a surprisingly good joyb of creating rights that leave room for the kind of diverse marketplace [Matt] was just talking about. iTunes, TiVo, iPods, Betamax: all devices that depend or depended on copyrighted works for a large portion of their value, and that’s a good thing. Copyright law in its current form seems to trust markets quite a bit. This is not the death of copyright as we know it. In the room between the overreaching desire of rightsholders for control and what the law provides, innovation blooms.

Patrick Ross, while conceding von Lohmann’s point that "there’s no moral, ethical, or legal right to a business model," sought to reframe the issue, saying it’s not about business models, it’s about copyright:

Asking and getting permission is a key part of the system. . . . Where you get into a problematic situation is where the rights are being so abused and no legal authority is controlling it.

Picking up on Ross’ defense of a permission-based system, Doug Lichtman challenged Matt Zinn on his assertion that TiVo could not have gotten permission had it asked first. He posited that TiVo would have been a value proposition for the television networks, and they would have been willing to partner with TiVo and give back a share of the enhanced value they would realize by meeting the audience demand for such a service. Zinn disagreed:

In Hollywood, it’s not just about the money. It’s about all the money.

Von Lohmann concurred:

Disruptive innovation does not get blessed in incumbent industries. When the music labels tried it with MusicNet, PressPlay, and all the other companies that are now smoking holes in the industry, it didn’t work.

He went on to point out that one reason incumbent industries shun innovation is their reluctance to cannibalize their other businesses: here, sales of videocasettes, DVDs, etc.

At about this point in the discussion, Jay Williams of the MPAA stepped up from the audience to suggest Matt Zinn was being philosophically inconsistent about intellectual property, since TiVo recently won a patent battle with Echostar/Dish Network. "What are the value of those patents? Aren’t they barriers to innovation?" Read the rest of this entry »

February 18th, 2008

Lawrence Lessig, congresscritter nominee

Posted by Denise Howell @ 9:49 am

Categories: Copyright, DMCA, DRM, Free speech, Live Web, MGM v. Grokster, Net neutrality, Privacy, Social networking, Social news

Tags: Lawrence Lessig, John Palfrey, Congress, Facebook, Denise Howell

TWiL regular John Palfrey announced a great idea last week while we were recording the forthcoming episode: a Facebook group drafting Professor Lessig for a recently vacated Congressional seat. Says John, "It’s high time we had our first true Free Culture candidate for public office." The Facebook group is about to hit 2,000 members, and there’s an official Web site as well (get your badges here). Seems appropriate in an election season so unusually filled with promise for needed change.

For his part, Professor Lessig isn’t ruling anything out, telling Ars Technica, "At this point, I’m not really able to say anything. I’ve been kind of stunned by the push of many, and am away with my family this weekend to think things through." More from Ars Technica, TechCrunch, and Slashdot.

[Update, 2/20/08 6:51 a.m.] TWiL #12 went up yesterday.

[Update, 2/20/08 6:55 a.m.] Via Jonathan Zittrain, a new site from Professor Lessig, lessig08.org: "I have decided I want to give as much energy as I can to the Change Congress movement. I will decide in the next week or so whether it makes sense to advance that movement by running for Congress."

October 15th, 2007

Want to know what over 7,500 ZDNet readers think about copying digital media?

Posted by Denise Howell @ 12:28 pm

Categories: Copyright, DMCA, DRM, MGM v. Grokster

Tags: Ethics, Business Ethics, Digital Media, Leadership, Management, Consumer Electronics, Personal Technology, Ed Bott, DRM, Music

Then get on over to Ed Bott’s Microsoft Report, where his poll on digital media ethics has garnered an overwhelming, and highly educational, response.

October 8th, 2007

In the trenches with Live Web law at EFF's Bootcamp

Posted by Denise Howell @ 10:56 am

Categories: Blogging, Collaboration, Compliance, Copyright, DMCA, Defamation, Free speech, Lawsuits, Licenses, Live Web, MGM v. Grokster, Mashups, Podcasting, Social networking, Social news, Syndication, User generated content, Video

Tags: Electronic Frontier Foundation, Web 2.0, Fred von Lohmann, Bootcamp, Fenwick & West, Denise Howell

If you’re doing business on the Live Web, get thee this Wednesday, October 10, to EFF’s Bootcamp, “a one-day session for Web 2.0 workers on user generated content:”

Does your interactive company have to contend with the maze of laws dealing with user privacy and publishing user content? Want to do the right thing by the online community that gives your business value, and still fulfill your legal obligations?

EFF is hosting a one-day session for Web 2.0 workers who handle issues arising from users and user-generated content. From DMCA to CDA to ECPA, the law surrounding internet content can be confusing, especially for the folks who have to decide on the fly whether to let something stay up or take it down, or whether to give their customer’s name to the FBI agent on the phone. Let us help.

This is an incredible and cheap (between $100 - $200) opportunity to learn how to spot and avoid trouble from the best of the best in this field: EFF’s staff attorneys. (If the registration fee is still too rich for your blood, then apply for one of the 20 available Google-sponsored scholarships, explained here.)

I am hard pressed to conceive of a Web-based communication platform, community, or business model that doesn’t need this kind of overview. For nine examples of why, check out Rafe Needleman’s 9 fun ways Web 2.0 startups can commit legal suicide, gleaned from an interview with Fred von Lohmann in conjunction with the upcoming event:

Von Lohmann’s two big takeaways: First, be sure you know when you’re stepping into a danger zone. Music? Financial data? Private information? Kids? Don’t let yourself think you’re more clever than another industry’s legal machine. Second, realize that no matter how hard you try to stay clean, ‘You’re probably doing something wrong already. For the most part it doesn’t matter, but something just might.’

For yet more examples of the legal minefields Web businesses must daily navigate, you might want to eavesdrop on Fred von Lohmann’s IP and Innovation Policy class at Stanford by way of its blog. Bring your Aleve; plenty of brain teasers there.

Bootcamp starts at 9:00 a.m. Wednesday at Fenwick & West in Mountain View. (Brilliant move by the firm, hosting this. I’m sure plenty of Fenwick’s existing clients are thrilled for the opportunity, and once EFF’s staff has had the chance to terrify educate all the non-client attendees, the stampede to sign the firm’s retainer letter will leave some wondering how they wound up in Pamplona.)

(Image by A. www.viajar24h.com, CC Attribution-2.0)

September 17th, 2007

IP and the user generated economy at TechCrunch40

Posted by Denise Howell @ 5:07 pm

Categories: Conferences, Copyright, DMCA, Licenses, Live Web, MGM v. Grokster, Mashups, User generated content, Video

Tags: TechCrunch40, Creative Commons, IP, Copyright, Video, User Generated Content, Music, Denise Howell

Some very competitively interesting Web companies are being launched and/or featured today and tomorrow at TechCrunch40. In the wrap-up portion of the Community Collaboration session, former Napster executive Don Dodge was quick to note that many of these companies depend on user submissions and uploads to populate their services, and they need to be managing the IP considerations on the front end.

StoryBlender (a project from the creators of Cyworld) provides an online editing tool for collaborative video production. When pressed on the related IP issues, the presenters said they have learned from YouTube’s experiences and will have rigid policies (and presumably technology) in place to block uploading of copyrighted, unlicensed works.

It will be interesting to see whether AOL’s BlueString, which launched today at the conference and offers storage and sharing for photos, videos, and music, will take a similar approach. Its terms unsurprisingly put the copyright compliance obligations on the individual users. It invites users to upload their photos, their videos, and “their music” — though of course, as the ’80’s mix cd graphic now on the homepage suggests, BlueString users are unlikely to have created “their music” themselves, thus putting the service in the likely and unenviable line of fire of the major record labels.

Probably the biggest crowd favorite today was musicshake, a company that aims to change the assumption that a user’s “own music” was not created (at least in part) by the user her/himself. It’s a slick online music creation site, like GarageBand moved to the Web and made very user-friendly. The clips forming the foundation of musicshake creations are all licensed, and the company plans to let users sell their creations, keeping some of the proceeds themselves and kicking some to those providing the clips on which the finished work is built. It would be nice to see musicshake include Creative Commons licensing, but there was no mention of this today.

Two companies who either are or are contemplating offering Creative Commons licensing are docstoc and AOL’s BlueString (mentioned above). docstoc, which blends document storage with sharing and social networking, bakes in Creative Commons licensing à la Flickr, and BlueString’s terms advise users that they “may” have the option to apply a Creative Commons license to what they put on the site.

August 27th, 2007

Lawgarithms Links for 8/27/07

Posted by Denise Howell @ 11:20 pm

Categories: Attention, Blogging, Copyright, DMCA, Lawsuits, Links, Marketing

Tags: Apple iPhone, iPhone Hacking, RIAA, David Lat, Nixon Peabody, Everyone's A Winner, Denise Howell

iPhone hacking meets the DMCA, new ways to owe money to the RIAA, bad music and its aftermath, and more — now playing in my Google Reader Starred Items:

iPhone Unlocked; Legal Battle Looming?, from Ed Felten

Unlocking the iPhone could invite a lawsuit, from Computerworld Breaking News

Is Unlocking Apple’s iPhone Legal?, from Top Tech News

Providing legal advice information in a humorous way, from Ernie The Attorney by Ernest Svenson

Judge Says That Making Available Is Infringement… RIAA Pounces Immediately, from Techdirt by Mike Masnick

Judge says making files available is the same as distributing, from ZDNet Blogs by ZDNet Government

You Have To Mean It If You Set It To Music, from FurdLog by Frank Field

Nixon Peabody ThemeSongGate: A Synopsis, from Abovethelaw.com

Unauthorized Enjoyment of Song Irks Law Firm, from NYT > Business by MICHAEL J. de la MERCED

Lat itude for Fair Use?, from Concurring Opinions by Frank Pasquale (”think ‘Up With People’ meets Sheena Easton meets B of A’s version of U2’s One“)

Well, Maybe Not Everyone, from The Trademark Blog by Marty

The Seven-point Personal Information Technology Property Manifesto, from May it Please the Court

Blawg Review #123, from Texas Appellate Law Blog by Todd Smith (near and dear to my heart: in the form of an appellate opinion)

Mark Lemley’s One Safe Harbor to Rule Them All, from A Copyfighter’s Musings by Derek Slater

Seventh Circuit Affirms Rejection of Data Breach Claims, from Spam Notes by Venkat Balasubramani

Attention Economy: All You Need To Know, from Read/Write Web by Richard MacManus

August 25th, 2007

It's all about the team, it's all about respect...

Posted by Denise Howell @ 7:55 pm

Categories: Attention, Blogging, Copyright, DMCA, Free speech, Marketing

Tags: David Lat, Nixon Peabody, Everyone's A Winner, Copyright, DMCA, Attention, Denise Howell

Following up on the Nixon Peabody song story, it’s worth noting:

• One of David Lat’s related posts is now the sixth fifth Google search result for Nixon Peabody; and
• The saga of the song has been added to the firm’s Wikipedia entry.

Here are the lyrics in their entirety, by the way.

August 23rd, 2007

Blogger contends posting silly leaked law firm song is fair use

Posted by Denise Howell @ 10:43 pm

Categories: Blogging, Copyright, DMCA, Free speech

Tags: David Lat, Above The Law, Nixon Peabody, YouTube Inc., Copyright, DMCA, Everyone's A Winner, Denise Howell

Over at Above The Law, David Lat provides irreverent coverage of the insular world of law firms and the judiciary. Today he posted a song produced by the Nixon Peabody law firm, forwarded by an unidentified tipster, that belongs in the bad business music hall of fame. The song was never intended for external consumption, and it’s not hard to see why:

Instead of laughing this off and embracing its inner freak as Microsoft embraces Steve Ballmer’s antics, the firm has been making saber-rattling, copyright-invoking phone calls to Mr. Lat, requesting among other things that he remove the audio he posted to YouTube. He has declined to do so:

They asserted copyright over the song and asked us to take it down, from our site and from YouTube. We stated our view that posting and commenting on the song constitutes fair use. It also falls within our newsgathering mission as a media organization.

We explained that our site is all about law firms and the legal profession. They said: “We know what you’re about.”

Nixon Peabody’s next logical step, given its difference of opinion with Mr. Lat on the copyright front, would be a DMCA takedown notice to Google/YouTube. This provides a good reason to revisit Wendy Seltzer’s go-round with the NFL, and the DMCA ping pong that ensued when she stuck to her fair use guns. Though the fair use analysis is different here, the same process could potentially follow, warranting another link to Chilling Effects’ Counter-Notification Generator.

Best of luck David, and thanks for the chuckles. (Note to musically aspiring firms and businesses everywhere: there is no such thing as “internal use only.” If you must go down this ill-advised road, think Eagles.)

[Update, 8/24/07:] Seems Nixon Peabody has fired its initial DMCA salvo at YouTube, though Above The Law is still making the “Everyone’s A Winner” audio available here.

[Update, 8/25/07:] Round III: the Internet, or more accurately a clever YouTuber named ChurchHatesTucker, stokes the fire (via Ed.):

July 28th, 2007

Lawgarithms Links for 7/28/07

Posted by Denise Howell @ 11:32 am

Categories: Attention, Blogging, Copyright, DMCA, DRM, Lawsuits, Licenses, Links, Net neutrality, Social networking

Tags: Links, Denise Howell

My Google Reader starred items are the ones I’ve selected just for you, O Lawgarithms readers. Some current highlights therefrom include:

NPR on MP3 blogs, from Scripting News

New York Lawyer Advertising Rules Round Up, from Sui Generis–a New York law blog by NBlack

The Pirate Bay Goes Simpsons, from Digg / World & Business

Record Label to the Pirate Bay: “Please Share Our Music”, from Digg / Technology

IBM to Regulate Employee Second Life Behavior, from Slashdot by Zonk

5 Life Lessons from the Bar Exam, from Legal Andrew by Andrew Flusche

Facebook Isn’t Private, and 7 Other Things You Should Know, from Legal Andrew by Andrew Flusche

Third party FaceBook apps are giving rise to serious privacy & legal concerns, from IMPACT® by Alex

MPAA Wants Protections if “Net Neutrality” Adopted, from GigaLaw.com Daily News by Doug Isenberg