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?”

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.

August 20th, 2007

Lawgarithms Links for 8/20/07

Posted by Denise Howell @ 11:43 am

Categories: Advertising, Blogging, Compliance, Copyright, DRM, Live Web, Marketing, Patent, Privacy, Social networking

Tags: Google Reader, Blog, Lawgarithms, Denise Howell

Remember that between entries here you can keep up with the Live Web (and other) issues I’m spotting by subscribing to my Google Reader Starred Items. Among the links now playing:

California court invalidates Alienware arbitration provision in online terms and conditions, from Internet Cases by Evan Brown

“Among other things, the memorandum suggests that the [U.S. Supreme] Court will begin making electronically-filed briefs available for access over the Court’s own web site“, from How Appealing

“A Quest To Get More Court Rulings, Online and Free”, from The Trademark Blog by Marty

Technophilia: Where to find public records online, from Lifehacker by Wendy Boswell

Drawing That Explains Patent Costs, from Clock Tower Law Group’s shared items in Google Reader by Erik J. Heels

Wired Piece on How to Run a Corporate Blog, from Micro Persuasion by Steve Rubel

American Airlines Sues Google Over Keyword Ads, from Technology & Marketing Law Blog by Eric Goldman

Burn the books, brave the blogs, from IP Law Daily by Jeremy

Joining OIN, from Official Google Blog by Karen

Documentary Tests Fair Use, from IP Law Daily by (author unknown)

Social Network Portability: Do We Need a Creative Commons-ish Campaign for Privacy?, from Like It Matters by Brian Oberkirch

Lyrics sites out of tune with copyrights, from ZDNet News - News Page One

Did You Violate Copyright Law Today?, from Law.com - Inside Opinions: Legal Blogs by Carolyn Elefant

Free MySpace Music Downloads?, from Mashable! by Kristen Nicole

State of the AmLaw 200 Blogosphere, August 2007, from Real Lawyers :: Have Blogs by kevin@lexblog.com (Kevin O’Keefe)

Linus on Subversion, GPL3, Microsoft and More, from Slashdot by CmdrTaco

Why watermarking is a bigger devil than DRM, from ZDNet Blogs by George Ou

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

July 20th, 2007

Lawgarithms Links for 7/20/07

Posted by Denise Howell @ 3:31 pm

Categories: Blogging, Collaboration, Copyright, DMCA, DRM, Lawsuits, Licenses, Links, Live Web, Patent, Privacy, Social networking, Social news

Tags: Lawgarithms Links, Denise Howell

Now that I’m smitten with keeping a link blog, I’ll endeavor once a week or so to cull through it for things I think might be of particular interest to Lawgarithms readers. So, here we go. I’m curious whether you find such undertakings useful or not, so there’s a poll on just that subject at the end.

University of Kansas adopts one-strike policy for copyright infringement (Eric Bangeman/Ars Technica), from Techmeme

Report: DVR adoption to surge past 50 percent by 2010, from Digg / Technology

RIAA Accepts $300 Offer of Judgement In Carolina, from Slashdot by kdawson

False Copyright Claims, from Slashdot by kdawson

Judge Says No to RIAA Subpoena Request, from Slashdot by CowboyNeal

Court: Feds can Read E-mail, IP addresses without warrant is Legal, from Digg / Technology

Might Lawyers Adopt ‘Radical Honesty’?, from Law.com - Inside Opinions: Legal Blogs by Robert J. Ambrogi

The “Secondary Liability” Theory on YouTube/iPhone, from TechCrunch by Michael Arrington

HOW TO - Put DVDs on the iPhone - the super simple way, from Digg / Technology

Harry Potter Leaked Via Handheld Camera, from Slashdot by kdawson

Rewritable Song Lyrics, from Slashdot by kdawson

The Bar Exam: And You Thought Your State Was Tough, from Abovethelaw.com

Funniest Law Blog, from Blawg Review by Editor

TorrentFreak Under Attack, from Digg / Technology

Dailymotion Loses Court Battle: Pays Damages to Indie Film Producers, from Mashable! by Kristen Nicole

Do Legal Blogs Even Matter to Attorneys?, from Sui Generis–a New York law blog by NBlack

Putting Canadian “Piracy” in Perspective - The Sources, from Michael Geist’s Blog by Michael Geist

If These Jurors Could Talk, from Deliberations by Anne Reed

The Flat Legal Blogosphere, and What To Do About It, from Concurring Opinions by hoffman

Music file-sharers get boost in top EU court - Reuters.uk, from Google News - Sci/Tech

Unrelated miscellany, from IPTAblog by Andrew Raff

New EFF tee, from Boing Boing by Cory Doctorow

The First Online Law Degree, from Law.com - Inside Opinions: Legal Blogs by Robert J. Ambrogi

Lawrence Lessig, from Planet Intertwingly by Joi

Microsoft Excludes GPLv3 From Linspire Deal, from Slashdot by ScuttleMonkey

Digital Audio from Federal Courts, from The Connected Lawyer by Bryan

But You Can’t Sue A Wire Service On Product Liability Grounds, from The Trademark Blog by Marty

Court decision poses serious privacy threat, from ZDNet Blogs by ZDNet Government

Open source content moves forward, from ZDNet Blogs by Dana Blankenhorn

Advocacy group cites top 50 pirated films, TV shows, from ZDNet News - News Page One by Reuters/Hollywood Reporter, for Reuters

Drawing That Explains Copyright Law, from Clock Tower Law Group’s shared items in Google Reader by Erik J. Heels

Drawing That Explains Patent Laws, from Clock Tower Law Group’s shared items in Google Reader by Erik J. Heels

SimplifyMedia: share iTunes with anyone, anywhere, from Boing Boing by Cory Doctorow

(Internet) users have no “reasonable expectation of privacy”, from Linuxchic.net - Because I Can by linuxchic

Do “Illegal” Codecs Actually Scare Linux Users?, from Slashdot by kdawson

Four things you may not know about technology Patent applications, from ZDNet Blogs by Russell Shaw

Copyright Board Gives Go Ahead to iPod Levy, from Michael Geist’s Blog by Michael Geist

Limewire starts a music blog, from P2P Blog

Where do you prefer your data? At home or on the “Web Cloud”, from Web Strategy by Jeremiah by jeremiah_owyang

Ask.com First Major Search Engine to Allow Deletion of All User Search History, from Andy Beal’s Marketing Pilgrim by andy.beal@gmail.com (Andy Beal)

MPAA Responds to Harry Potter Leak, from TorrentFreak by Ernesto

Richard Stallman Talks on Copyright V. The People, from Slashdot by CowboyNeal

RIAA Admits ‘Stream-ripping’ Is Not a Problem, from Digg / Technology

Webcasting reprieve carries a dangerous payload, from Boing Boing by Cory Doctorow

Nearly Ten Percent of Companies Have Fired Bloggers, Survey Claims, from Threat Level - Wired Blogs by Ryan Singel

Facebook and the law, from Vendorprisey by Thomas Otter (via Dan Farber)

May 30th, 2007

Day 1 of iTunes Plus has its minuses

Posted by Denise Howell @ 2:01 pm

Categories: Copyright, DRM, Licenses

Tags: Apple iTunes, Denise Howell

As Bob Lefsetz rants, the iTunes Plus launch today has not been without its hiccups. He’s particularly ticked off that users must go through a laborious “change preferences” process once they’ve drunk the iTunes Plus Kool-Aid, should they wish at any time to purchase the non-Plus version of a song or album:

When I go to buy a car, they don’t say if I want to LOOK at the one loaded up with options I can no longer look at the base model. Unless I remember that there are multiple levels and I go into the manager’s office and sign a waiver. And then I can’t look at the EXPENSIVE version unless I go back into the office!

And since you can only see one or the other, how many people are gonna no longer know that a cheap version is available?

For my part, my library of 3,600 items (many of which are admittedly podcasts or video media) had only 102 songs capable of upgrade, for $26.00 and change. Money well spent as far as I’m concerned, but it’s been over an hour and I’m still waiting for the promised email instructions on how to complete the process. I also get an error each time I try to read the iTunes Plus FAQs.

May 2nd, 2007

Digg and cracking HD-DVD: Reimerdes comes to social news

Posted by Denise Howell @ 12:02 pm

Categories: Blogging, DMCA, DRM, Lawsuits, Social networking, Social news, User generated content, Voice

Tags: HD-DVD, DMCA, Techmeme, Denise Howell

Techmeme is all a-flutter, and my ZDNet colleagues have been right on top of the Digg/HD-DVD crack story.  Here's my quick take on things, as I run off to OnHollywood (where Kevin Rose spoke this morning):

Nothing says Digg has to respond to a mere demand letter under any circumstances.  Demand letters are shots across the bow, an effort to get a potential adversary to capitulate without all the bother of litigation and without fully ventilating the issues.  See Chilling Effects if there is any doubt in your mind on this point.

At first blush this situation looks like Universal v. Reimerdes, the infamous case where the Second Circuit affirmed a trial court's finding that 2600 Magazine had violated the anti-circumvention portions of the DMCA by posting DeCSS.

But Digg isn't a magazine, online or otherwise.  It's a social news site populated by user submissions.

If the AACS Licensing Authority decides to take this to the next step and file suit, there's the opportunity for a very interesting test of the scope of Section 230 of the Communications Decency Act.  (For some great context and discussion, catch EFF's Kurt Opsahl on Rules for the Revolution #009.)  Now, Section 230 does not immunize a provider of interactive computer services from liability related to users committing federal crimes.  But here, we're not necessarily talking about crimes under the anti-circumvention provisions of the DMCA.  As I understand it, the demand Digg received (like other related ones) was from a private party.  We're not talking about a DOJ investigation and charges; this isn't Sklyarov.  The anti-circumvention provisions include both criminal and civil penalties, and the criminal ones only attach when violations are determined to be willful and for commercial or private financial gain.  Hence, I see no reason at this point why Section 230 shouldn't be very much in play.

So, good for Digg, and for Kevin Rose, and I hope they'll stick to their guns.  (Though with all this in mind, if I were their lawyer I'd have preferred that Kevin not post the code on the official Digg blog.)  

February 7th, 2007

Apple: put your DRM money where Jobs' mouth is

Posted by Denise Howell @ 12:29 pm

Categories: Copyright, DRM, Lawsuits, Licenses, User generated content

Tags:

My immediate response to Steve Jobs' DRM essay is in line with thoughts already expressed by Cory Doctorow and Lawrence Lessig, to wit:  if Apple is serious about encouraging a consumer friendly, non-DRM'd music landscape, it has no excuse for failing to offer independent artists the option of selling non-DRM'd music through iTunes.  This is particularly critical in the case of Creative Commons licensed music.  In my own iTunes library, I can think of at least two artists — Jonathan Coulton, who posted on this too, and Meme — who sell Creative Commons music through iTunes.  As Creative Commons points out:

If a person uses DRM tools to restrict any of the rights granted in the license, that person violates the license. All of our licenses prohibit licensees from "distributing the Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement."

To get technical about it, Apple requires artists to enter into a separate license specifically governing iTunes sales, and could also argue its DRM is consistent with the access and use contemplated by CC (even notwithstanding CC's express nonlimitation of fair use).  But getting technical about it is in no way consistent with Apple's newly announced DRM position.  Apple has taken a bold policy stand.  Having done so, it needs to implement that policy immediately for the growing pool of artists in its marketplace who agree with Steve Jobs and aren't signed with Universal, Sony BMG, Warner, EMI, or other DRM-mandating labels.  Jobs' essay would have had a hundredfold greater impact — and would look a lot less like a litigatory and regulatory defense strategy — had it included such an announcement.

Photo by AMagill

[Update, 1:51 p.m.:]  Chuckle-worthy bonus link, Top 10 stories to file alongside Steve Jobs saying DRM is bad, via Ed.

November 15th, 2006

In Second Life, those on 'Candid Copybot' aren't smiling

Posted by Denise Howell @ 2:17 pm

Categories: DMCA, DRM, Licenses, Machinima, Mashups, Social networking, User generated content, Virtual worlds

Tags:

Marty Schwimmer tipped me to the controversy swirling about use of a CopyBot tool in Second Life.  (Go read Marty's terrifically headlined post: CopyBot Terrorizing Residents Of SecondLife, Caught On Video.)  Marty thinks this is an indication Linden Labs will have to bake more protective measures into its virtual world if it hopes to preserve and foster the economy:

[T]o the extent that it wishes to continue to be the host to an exchange, it will find that successful exchanges must offer security not only to buyers but to sellers. If copyrightable material is going to be bought and sold on Second Life, then I'm not sure that the real world copyright regime is fast enough to solve problems like CopyBot. I think that SecondLife is going to have to get into the copyright enforcement business.

I disagree.  Marty emphasizes the potentially disruptive nature of this copying technology on the still relatively nascent virtual world, but the fact is all copying technologies are and have been disruptive, in part by making it easier to infringe intellectual property rights:  cameras, photocopiers, audio and video recording devices, and all manner of digital media fall into this category.  In the real world, economies thrive in part because copying technologies exist — in other words, because those technologies themselves are economic engines.  Deciding that such technologies are bad per se and must be squelched or hobbled isn't good policy in the real world, and I'm not sure why Second Life, which is in the enviable position of creating in-world copyright policies from scratch, should adopt a different approach.  As Linden Labs CTO Cory Ondrejka pointed out in his related blog post, there is one aspect of the real world copyright regime that is literally built for speed:  the notice and takedown provisions of the DMCA.  I think my CNET colleague Daniel Terdiman, who wrote about this in his piece 'Second Life' faces threat to its virtual economy, missed the thrust of Cory's DMCA point.  It's not necessary "to file a Digital Millennium Copyright Act complaint — in the real world — against offenders" to achieve the removal of infringing material; it's only necessary to notify Linden Labs that you contend something is infringing and the removal process proceeds rapidly from there.  The asserted infringer has to make his or her case to Linden Labs in order to keep up the activity, before the question of real-world litigation necessarily even comes into play.

For now, Linden Labs has chosen to appease concerned users and police the technology by making use of CopyBot a terms of service violation.  But they've also, I think wisely, indicated that "using the Terms of Service is not a permanent solution," and that tracking and licensing services and data are keys to the approach-in-progress.  As in the real world, I think the smart and appropriate policy will be to find a way to let the analogs of snapshots and copy machines continue to exist, and let legal code rather than machine code primarily govern infringement situations.

[Update, 11/21/06 2:40 a.m.]  Jennifer Granick, Second Life will Save Copyright:  "The idea that innovation can flourish in the absence of copyright enforcement is not as heretical as it might seem."