EU Public Affairs Monitor - 31/12/08

RIAA graduated response plan: Q&A with Cary Sherman December 21, 2008
"On Friday, major news broke: the RIAA would (largely) abandon its widespread lawsuit campaign against individuals in favor of a "graduated response" partnership with ISPs. The outlines are clear enough—the RIAA will identify infringers, pass that information on to ISPs, who will notify (and eventually sanction) users without turning personal information over to the music industry.

But details, in some cases hugely important details, remained unclear. Chief among these was the lack of any talk about an oversight or appeals process for users who want to contest the RIAA's claims in some way. We checked in with EFF attorney Fred von Lohmann, one of the leading non-industry voices on these issues; he suggested five potential "gotchas" that need to be scrutinized as the plan goes forward." [ArsTechnica]

No more lawsuits: ISPs to work with RIAA, cut off P2P users December 19, 2008
"In a stunning turn of events, the US music industry has ceased its long-time litigation strategy of suing individual P2P file-swappers. Instead, with New York Attorney General Andrew Cuomo acting as a broker, the RIAA has signed voluntary "graduated response" agreements with major Internet service providers. Those currently on the receiving end of an RIAA lawsuit, though, will have to see it through to the (very) bitter end.

The Wall Street Journal (subscription) broke the story, and Ars has confirmed all details given in the piece." [ArsTechnica]

ISP to RIAA: Pay up or do your own dirty work December 22nd, 2008
"I love stories of the little guy going head-to-head with the big guys, especially when the big guy looks like a fool in the end.

CNET’s Greg Sandoval tells the story of a small Internet Service Provider in Louisiana whose owner has refused to play ball with the Recording Industry Association of America - at least on the RIAA’s terms. Last week, the RIAA announced that it was going to shift strategies to fight piracy. Instead of filing mass lawsuits, the RIAA said it is partnering with ISPs to identify, serve notice and potentially disconnect file-sharers." [ZDNet]

RIAA drops mass lawsuits, recruits ISPs to crack the whip December 19th, 2008
"The headlines across the blogosphere make it sound like the Recording Industry Association of America has thrown in the towel and decided to stop going after music pirates on the Internet. That’s not exactly the case.

Instead, the RIAA is teaming up with Internet Service Providers to identify and, potentially, blacklist offenders from obtaining an Internet connection in the future. That keeps the RIAA from having to subpoena the ISPs for user information and instead puts the ISP into the hot seat to crack the whip on the customer. OK, maybe blacklisting would be an extreme, last resort after repeated warnings - but I could see it headed that way." [ZDNet]

Update on Capitol Records v. Thomas: Motion to Certify an Appeal Denied; Petition for an Extraordinary Writ May Follow 12.31.2008
"Earlier this fall, the Court adjudicating Capitol Records, Inc. v. Thomas, vacated a $222,000 jury verdict because the Court found it had erred by instructing the jury that U.S. law provides a "making-available right." I have discussed the profound and numerous flaws in that ruling here (http://pff.org/issues-pubs/pops/2008/pop15.16thomasmaright.pdf). I discussed the downright disturbing flaws in Section K of that ruling, (which contains the Court's associated advisory opinion on copyright reform), here (http://pff.org/issues-pubs/pops/2008/pop15.18thomasreform.pdf).

After the ruling, the Thomas Plaintiffs did just what they should have: They filed a motion to certify the Court's making-available-right ruling for an interlocutory appeal. Thomas is an ideal case for an interlocutory appeal: the recent self-reversal in Thomas would require the parties to re-try the entire case because the Court used internally inconsistent reasoning to adopt a minority position on a pure question of law that admittedly causes the United States to violate nine international agreements. Stronger grounds for an interlocutory appeal are scarcely conceivable." [IPCentral]

EU Public Affairs Monitor - 24/12/08

Internet Piracy: No, Virginia, There Really Is No "Competing" Against Yourself for "Free"
"CNET and others report about a charming new steal-don't-buy browser extension that reminds Amazon.com shoppers that much of Amazon's legal content can be downloaded illegally "4 Free" from The Pirate Bay. If correct, such reports expose the truly self-destructive venality of Internet piracy. They also expose the vacuity of an argument favored by defenders of piracy--the claim that content creators (and law-abiding distributors) can or should "compete against free." Usually, persons spouting this claim cite the case of "bottled water" as a real-life example. For two reasons, this example refutes their vapid claim.

First, this claim understates the achievement of commercial creators of bottled water and content. They compete not only against "free"--but against competitors whose goods seem free because their production costs and risks are subsidized by non-market sources like taxation. Creators of works like movies, music, and books, like creators of bottled water, have long competed successfully against "free" tax-subsidized alternatives (like tap water). In other words, private companies produced bottled water because they concluded that if they incurred the costs and took the risks needed to create high-quality water, taxpayers who have already paid for the "free" water produced by the County Water Board would pay again to purchase higher quality water from a private source." [IPCentral]

The hitman, the Pirate Bay and the freetard prof 10th December 2008
“Since Duchamp's urinal, a great deal of modern art has been a "prank" against the art establishment. Maybe that's why now, state-funded "pranks" like the Pirates plug-in - designed to preach to the converted - feel so stale. Or it could be Cramer's own deeply conservative (and misanthropic) outlook. By design, the course ensures his students fulfill a narrow set of ideological obligations - all of which are de rigeur in modern media theory.

And that, we must conclude, is exactly what the modern state requires from its "radicals". Rather than being outside the tent pissing in, they're quite content to be on the inside, launching Firefox browser plug-ins outwards. Repressive regimes once persecuted dissidents - now they merely need give them cushy jobs on Media Theory courses to render them useless. They'll do the rest.” [TheRegister]

Hollywood wants in on ISP "graduated responses," too : December 24, 2008 - "Graduated response" isn't just for music
"Ars has learned that the Motion Picture Association of America has been having similar discussions with US ISPs for some time and has already been involved in trial projects. The results of this limited testing have been encouraging to the movie business, as they show that most people do in fact stop sharing files illegally after receiving a simple warning from their Internet provider.

The recording industry made waves last week by announcing a set of voluntary agreements with American ISPs to pass warnings (and eventually sanctions) to users accused of sharing files illegally over P2P networks. The scheme is similar in concept to the recent deals in the UK and France, but such graduated response mechanisms are actually under consideration all over the world." [ArsTechnica]

"Can I resell my MP3s?": the post-sale life of digital goods: Second time's a charm December 17, 2008
"The Castaway" is not a very good book. Published in 1908, Hallie Ermine Rives' novel opens with these deeply unpromising sentences:

"A cool breeze slipped ahead of the dawn. It blew dim the calm Greek stars, stirred the intricate branches of olive trees inlaid in the rose-pearl facade of sky, bowed the tall, coral-lipped oleanders lining the rivulets, and crisped the soft wash of the gulf-tide. It lifted the strong bronze curls on the brow of a sleeping man who lay on the sea-beach covered with a goatskin." [ArsTechnica]

UK talks mashups, DRM, CD ripping as it opens copyright overhaul December 17, 2008
"The UK's Intellectual Property Office has some odd ideas. In thinking about the "future agenda on copyright" in Britain, the agency recognizes the disconnect the law and common actions like CD ripping, feels the pain of mashup artists who have no real way to clear rights, knows that DRM can currently override statutory copyright exemptions, and wants to hear especially from creators and users. David Lammy, the minister in charge of higher education and intellectual property, even puts quote marks around "online music 'piracy'."

The occasion for all this attention do digital copyright issues is UK IPO's new "© the future: Keeping ahead of the game" consultation. The government has a wide-ranging scheme called Digital Britain that various ministries have been at work on for several months, and the chance to think about copyright's future is part of the UK plan to make Britain a hub for the digital and creative industries. Government statistics already show that the creative industries generated 8.2 percent of GDP in 2007 and are growing twice as fast as the overall economy." [ArsTechnica]

EU Public Affairs Monitor - 19/12/08

RIAA to end its “Sue The World” policy
“In a week dominated by the Leonard Cohen classic, can I just say "hallelujah". A year that began with the news all four majors had ended their kamikaze love affair with digital rights management, is ending with the news that the Recording Industry Association Of America is axing its other self-defeating, unhelpful, surely-record-company-execs-cant-be-this-dumb policy of suing individual music fans over their use of P2P file sharing technology to acquire or share unlicensed music.

From the word go the RIAA has been at the forefront of the litigious approach to tackling the piracy threat of the internet, which was good news for lawyers, but bad news for pretty much everyone else, not least the record companies who had to foot the bill for the legal campaign that was destined to fail from the word go, and which destroyed the already sagging reputation of the record industry at a time when it needed public and consumer support, partly because the labels were clearly going to have to develop direct customer relationships moving forward, and partly because it needed enough goodwill to fight for a re-evaluation of copyright systems.
The original strategy was to sue any company making P2P networking possible. But it soon became clear that suing Napster, Grokster, Kazaa et al was not effective because, even when the US courts eventually started to find in the labels' favour, the kids had always transferred their loyalties to newer P2P systems by the time older ones had been sued out of business.” [CMUDaily]

Culture announced an imminent "unpopular" measure against piracy
“Molina says that EU ministers have in their agenda actions against practices "illegitimate"

Today, Cesar Antonio Molina, the Spanish Culture Minister, announced that "not too late" there will be legislation, "which is likely to be unpopular" to regulate Internet piracy, a practice that has branded as "illegitimate" during the ‘Breakfast Briefing Europe Press’ and that, in his view, affects the whole culture.

Asked about the possibility of blinding access to Internet pirates repeat, Molina has stated that they are "exploring ways" and that "not too late there will be a regulation" this whole issue. Probably it’ll be a regulation that will be very unpopular, but what is unpopular, dilapidated and a disaster is that thousands of jobs that gives the culture will disappear by this illegal action. That can’t be allowed, he said.

Also, Molinas says that from the Ministry of Culture is struggling and acting very well" against piracy since "many fronts" and that at European ministers meetings is a "reiterative theme”, with the development of new laws and new forms of organization, to prevent piracy, "a termite that is destroying entire network of industry, to acquire such extreme shades."” [UFI]

Copyright cop wedding crashers fined by Spanish court
“The next time you have a wedding, make sure your videographer isn't a secret spy for the RIAA or similar copyright group. This real-life scenario happened to a couple in Spain thanks to the efforts of the Spanish General Society of Authors and Editors (SGAE), a rights group for musicians and artists. But although the group managed to bust the reception venue for copyright violations, SGAE itself has been fined for violating the privacy of the newlyweds.

The incident originally took place back in 2005, when SGAE snuck a private detective into the wedding reception acting as a cameraman. The group had suspected the venue—La Doma restaurant near Seville, Spain—for using music without paying royalties. Predictably, this series of events have horrified privacy advocates who argue that the couple's privacy was breached. As noted by The Sunday Times, however, the issue has come to light recently because SGAE has increased its efforts to catch venues that are avoiding royalty payments, and another, similar case is about to go to court.” [ArsTechnica]

EU Public Affairs Monitor - 15/12/08

UK consumers, Big Content battle over three-strikes rules December 01, 2008
"Although France's "graduated response" proceedings have attracted the most attention, the UK is in the midst of a consultation of its own on how to involve both content owners and ISPs in some sort of response to P2P file-sharing. The government is pushing a co-regulatory approach that would task industry groups with hashing out the details of such a plan, while the government would make sure that any agreement is fair, competitive, and preserves privacy. With all the responses now in, the UK music industry is clearly pleased that it won't have to pursue 6.5 million copyright infringers on its own. Digital rights groups are... less excited.

The entire consultation is helmed by BERR, the UK agency that handles Business, Enterprise, & Regulatory Reform, and it stems from the famous (in certain circles, anyway) Gowers Review of intellectual property that we covered extensively back in 2006. That report, which took a top-to-bottom look at UK copyright and IP policy, was stuffed with plenty of consumer-friendly ideas, such as no new copyright term extensions. But it also contained good news for rightsholders, such as a suggestion that the government step in if ISPs and rightsholders couldn't agree on how to handle the issue of P2P file-sharing." [ArsTechnica]

Voluntary campus-wide music licenses could stop the lawsuits December 08, 2008
"It takes a special knee-jerk churliness to jackboot the music industry in the proverbial groin every time it comes up with a new idea. Sure, some of these ideas (Hi, DRM-laden CDs!) make one want to spend an afternoon banging head against desk in existential despair over the low collective intelligence of the people in this world who make decisions. But the industry isn't staffed only with fair-use hating zombies and DRM lovers; the occasional human roams the hallways, sometimes hatching new schemes that aren't wholly stupid, ridiculous, or evil. When that happens, it's worth holding one's rhetorical fire until the idea is fully developed, offering encouragement and constructive criticism.

Of course, Internet groin kicks are easier. And think of the traffic! But they're not always helpful, not when you'd like the industry to get up and walk arm-in-arm into the sunset with users rather than lie in the street and issue subpoenas from the gutter." [ArsTechnica]

Masnick on the Music Tax Dec. 15, 2008
"I’m more sympathetic to EFF-style voluntary collective licensing than Mike Masnick is, but I have to say that the case he makes here is pretty compelling. I think this is really the key point:

What you’re doing is setting up a big, centrally planned and operated bureau of music, that officially determines the business model of the recording industry, figures out who gets paid, collects the money and pays some money out. The same record industry that has fought so hard against any innovation remains in charge and will have tremendous sway in setting the “rules.” The plan leaves no room for creativity. It leaves no room for innovation. It’s basically picking the only business model and encoding it in stone. [TechLiberation]

Taxing music at the ISP level: Good idea or bad? Dec 5^th
"Warner Music Group has a proposition for U.S. universities, according to Techdirt: buy a blanket license to music downloads through file-sharing services, or be sued.Techdirt thinks that this is a bad idea, and I disagree. Techdirt's criticisms are clear." [CNet]

Lessig’s call for a “simple blanket license” in Remix 01/12/08
"Lessig Remix coverI’m finishing up Stanford Law School professor Lawrence Lessig’s latest book, Remix: Making Art and Commerce Thrive in the Hybrid Economy and wanted to make a brief comment about his call for a “simple blanket license” to solve online music piracy.

Overall, I thought Prof. Lessig made a good case regarding the benefits of “remix culture” and why copyright law should leave breathing room for the various derivative works of amateur creators. On the other hand, Lessig still too often blurs remix culture with “ripoff culture” (i.e., those who aren’t out to create anything new but instead just take something without paying a penny for it).

To solve that latter problem, Lessig again endorses a proposal that William Fisher, Electronic Frontier Foundation, and others have made for collective licensing of all online music, but he fails to drill down into the devilish details. He says, for example, that “by authorizing a simple blanket licensing procedure, whereby users could, for a low fee, buy the right to freely file-share” we could “decriminalize file sharing.” " [TechLiberation]

Techdirt's Mike Masnick On Why a Music Tax Is a Mistake December 11, 2008
"Techdirt founder Mike Masnick has followed the twists and turns of the digital music debate for more than a decade, offering some of the most prescient and lucid information and arguments on the topic anywhere. Today he tackles growing calls for a voluntary music-licensing scheme, pushed most recently by Warner Music Group to universities, that would basically allow file sharing by having ISPs impose a surcharge on all users to be paid out to copyright holders. (A version of this has been done before with blank media like tape cassettes in some markets, including Canada, but this would be a massive expansion of the idea.)

Mike's take is not the final word on the matter, but it should be required reading for anyone interested in understanding where music is today and where it is headed. It is reproduced with permission below in its entirety. As he ably argues, the future of music is often confused with the future of the music business — but they are not the same thing at all. In fact, the interests of the music business, defined primarily as the major recording labels, is arguably one of the biggest impediments to moving music itself forward." [Wired]

US Public Affairs - 30/11/08

In Peer-to-Peer File-Sharing Case, "Distribution" Does Not Mean "Making Available"

"At trial, the plaintiffs sought to prove that the defendant, a single mother in Duluth, had willfully infringed 24 of the plaintiffs' recordings by downloading and distributing them via the peer-to-peer program Kazaa. Finding that the defendant had infringed, the jury awarded the plaintiffs statutory damages of $9,250 per song, for a total of $222,000. The defendant filed a motion for a new trial or, in the alternative, for remittitur, calling for a reduction of excessive damages; the plaintiffs filed an unopposed motion to amend judgment, seeking an injunction. Instead, the court elected sua sponte to address the possibility of granting a new trial because of an incorrect jury instruction." [CyberLaw]

Music Sampling Does Not Infringe on Copyright, But…

"The German Supreme Court (BGH) clarified last week that sampling does not infringe on copyright in the work from which samples were taken for the purpose of creating a new work. There is a catch hiding in the details, though. According to the official press release (in German), the highest judicial authority in Germany ruled that a certain statutory exception principally covered instances of sampling. The relevant exception is anchored in section 24 to the German copyright act, known as “free use” (freie Benutzung). Free use is not fair use, but you can think about it as an extreme version of the transformativeness element familiar from the U.S. fair use analysis. Accordingly, the new work must transform the work of which elements it uses into something independent and wholly different. While using the copyrighted elements taken from the prior work, such use should be so transformative that the first work becomes hardly recognizable as the source." [CyberLaw]

Digital Copyright Issues and the Ubiquitous iPod

"The advent of new technologies has resulted in Copyright law having to adapt to new situations and infringements. These technologies, including music formats that contain compression, as well as the reduction in cost and size of hard drives has created significant new challenges and markets for digital content. Even in the short life of the iPod, it has gone from a music device, to a multimedia device. This article examines some of the issues and case law that is relevant to the content revolution created by the iPod." [SSRN]

The Dangers of the Digital Millennium Copyright Act: Much Ado about Nothing?

"In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), a landmark piece of legislation aimed at protecting copyright holders from those who might manufacture or traffic technology capable of allowing users to evade piracy protections on the underlying work. At its core, the DMCA flatly prohibits the circumvention of technological protection measures in order to gain access to copyrighted works, with no safety valve for any traditionally protected uses. While hailed as a victory by the software and entertainment industries, the academic and scientific communities have been far less enthusiastic. The DMCA's goal of combating piracy is a noble one, but lurking is the danger that it comes at the expense of public access to protected works and future innovation. Despite America's long history of fair use protections in copyright law, many commentators have warned that consumers now find themselves unable to do many of the same things with copyrighted works that they previously could - anyone who might sell them the technology to access a protected work and enable fair use would find themselves in violation of the DMCA. Worse, early litigation dramatically expanded the definition of what constitutes a technological protection measure deserving of the law's respect. As the definition broadened, scholars feared that even modest innovations - ones that would never qualify for patent protection under existing law - could wind up receiving perpetual patent-like protection through the backdoor of the DMCA. Despite the experts' dire predictions, however, subsequent common law interpretation of the DMCA has reigned in many of its potential dangers - the judiciary's focus is rightly on the need to balance innovators' interests with the equally important goals of public access and enhancing overall social welfare. Nonetheless, coherent and uniform protection of fair use under the DMCA is likely best achieved through Congressional action." [SSRN]

Why Emerging Business Models and Not Copyright Law are the Key to Monetising Content Online

"The multimedia Internet is here to stay. Rich media - including videos, music, podcasts, and flash animation - is already a key feature of the Internet experience, and will only grow in diversity and importance. As Internet users increasingly crave - and technology increasingly enables - multimedia content delivered on demand over broadband connections, the number of songs, videos, and other media online will increase exponentially to feed the demand. As online media consumption increases, so will expectations for its capacity to generate revenue for content owners and creators. Analysts boldly predict a bright future for the entertainment industries, especially in Asia, with broadband Internet cited as a key growth driver. Yet, to date, the vast majority of music and video acquired or consumed online is free and uncompensated. Despite the rising expectations for monetizing content on the Web, no clear sustainable, scalable model for monetizing content has emerged that compares to the level of revenues copyright owners have enjoyed in the "physical" (as opposed to online) market." [SSRN]

Music News Bulletin - 11/09/08

The Great Circular Award Ceremony 10/09/08
"What a strange world it is, the world of "digital rights" activism. Campaigners pause only to pat each other on the back. Last week, anti-copyright campaigners Public Knowledge held their annual awards. The group's president Gigi B Sohn proudly announced the winners: fellow campaigner Carl Malamud of PublicResource.org, fellow campaigner Ben Scott of FreePress... and fellow campaigner Fred Von Lohmann of the Electronic Frontier Foundation, the EFF." [TheRegister]

Sony Ericsson apes Nokia's 'Saw You Coming': Bundles music with phones 09/09/08
"Sony Ericsson is imitating market leader Nokia and will bundle "free" music with its handsets, the FT claims today. As with Nokia's "Comes With Music" program, selected Sony Ericsson handsets will come with a year's worth of unlimited liability downloads. Apart from suggesting a launch date of next month, no further details were disclosed by the FT." [TheRegister]

Classical downloads service hits right note on DRM 11/09/08
"If you prefer Bach to the Beastie Boys and Mozart to Madonna, then you’ll be pleased to hear that an iTunes rival’s been created that panders only to the desires of classical music fans."[RegHardware]

Google bulges old time news archive: More papers, more ads 08/09/08
"Google is redoubling efforts to offer a digital archive of the world's newspapers. Two years ago, the search giant began indexing the existing digital archives of papers like The New York Times and The Washington Post, and today, with a post to The Official Google Blog, the company said it's now working with other publishers to bring a much broader range of old newsprint into the project." [TheRegister]

Music News Bulletin - 07/08/08

Warner Music Complains That Rock Band And Guitar Hero Need To Pay More For Music Aug 7th 2008
And here they go again. Despite the fact that the games Guitar Hero and Rock Band have breathed new life into various musical acts and helped pump up sales of certain artists, the recording industry is starting to complain. It seems unable to recognize how something that promotes its music or makes that music more valuable is beneficial -- instead freaking out that it's somehow being ripped off. Proving, once again, that they overvalue content and undervalue the service that makes that content valuable, Warner Music's Edgar Bronfman is bitching and complaining that Rock Band and Guitar Hero aren't paying enough for music. [TechDirt]

EU Public Affairs Monitor - 25/07/08

Senator fuses controversial IP bills into big, bad package July 25, 2008
"Intellectual property legislation introduced in the Senate on Thursday would combine elements of two controversial IP enforcement bills: The PRO-IP Act, which passed the House by a wide margin in May, and the PIRATE Act, which has won Senate approval several times since its first introduction in 2004. The law would increase penalties for counterfeiting, empower federal prosecutors to bring civil suits against copyright infringers, create a federal copyright czar to coordinate IP enforcement, and provide for the seizure of property used to violate copyrights and trademarks.

Related Stories
Like PRO-IP, the Enforcement of Intellectual Property Rights Act of 2008 would double statutory damages for counterfeiting, with damages as high as $2 million for "willful" trademark violations. It also empowers the president to appoint an Intellectual Property Enforcement Coordinator (or "copyright czar"), who would develop a "joint strategic plan" meant to harmonize the IP enforcement efforts of diverse federal agencies, including the Department of Justice, Patent Office, State Department, and Department of Homeland Security. The Attorney General is directed to deploy five further IPECs as liaisons to foreign countries where piracy is rampant, and to establish a dedicated IP task force within the Federal Bureau of Investigation. The law also appropriates $25 million annually for grants to state and local government agencies working to crack down on IP violations." [ArsTechnica]