The Cablevision DVR ruling

Cablevision_ceo_james_dolan_2003_ap It's conventional wisdom that copyright law doesn't keep up with technology. How could it? And yet the 2nd Circuit Court of Appeals, in its decision Monday in the Cablevision DVR case, somehow made the leap into the Web 2.0 world without tripping over 32-year-old provisions of the main federal copyright statute. It's an important ruling that has intriguing implications for products and services with recording features, potentially extending to Web-based companies the protection that the Supreme Court gave to home recorders.

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UK ISPs to warn file-sharers, but then what?

BPI RIAA deal with MPAA and ISPs in UK to warn p2p file sharers Let's see how many acronyms I can squeeze into this lede. In a deal brokered by the BERR, BPI (the UK version of the RIAA) announced that six leading ISPs had agreed to send warning letters on behalf of the labels and the MPAA to people suspected of illegal p2p downloading. BERR is the UK government's Department for Business, Enterprise and Regulatory Reform, which is analogous to the U.S. Department of Commerce. Essentially, pressure from BERR and the threat of legislation motivated the ISPs to stop stiffing the BPI and start compromising. But today's deal involved a relatively painless concession for ISPs. A more interesting question is what enforcement mechanisms, if any, the ISPs will put in place to give the warning letters teeth.

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Consumer groups blast MPAA proposal (a dog bites man story)

Mpaa_logo If you had the chance to watch a movie on cable or satellite TV before it came out on DVD, what sort of trade-offs would you be willing to make? Would you pay more to watch it than a DVD rental or even a movie ticket? Would you accept having to watch the movie in one sitting, with no breaks for phone calls or snacks? Would you lose interest if you couldn't record the movie to watch again later?

These are the sorts of questions the market typically answers, but that's not how it necessarily works in the entertainment industry. This week, seven consumer advocacy groups urged the FCC not to let the studios conduct the experiment they proposed in early video-on-demand releases. The reason: the MPAA wants to deploy an anti-piracy technique that, in the advocacy groups' opinion, would give the studios too much control over the technology used in homes.

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More royalties for songwriters?

Us_copyright_office_logo In an overlooked notice of proposed rulemaking last week, The Library of Congress' Copyright Office lived up to the worst fears about government agencies. It took up a nearly eight-year-old petition and, rather than settling a current dispute, created a new one. It also provided yet more evidence that copyright laws written in the analog era don't map well to the Internet and digital technologies.

The issue has a rich back story, much of it laid out in the notice. But here's a distillation. The Copyright Office was asked in late 2000 to resolve a disagreement between the RIAA and music publishers over how large a mechanical royalty, if any, should apply to two types of music services: on-demand streams from an online jukebox, and "tethered" downloads that expire after a certain number of days or plays. Such streams and downloads are at the heart of subscription music services such as Napster and Rhapsody. In its proposed rulemaking Wednesday, the Copyright Office basically punted on that question. But it unexpectedly held that music publishers were entitled to an additional royalty for non-interactive streams -- e.g., webcasts, satellite services and digital over-the-air radio signals. The size of the royalty was left to a three-person arbitration panel, which has been considering the rates for interactive streams but, apparently, not for non-interactive ones.

Representatives of the music publishers were still digesting the decision when I talked to them Friday, so it's not clear how they'll respond. Nor is it possible to say what impact, if any, there would be on webcasters already struggling to pay royalties to the labels. “This is more than we have ever asked for," said Laurie Jakobsen, senior director of communications for the Harry Fox Agency (a royalty collector for the publishers). Added Jay Rosenthal, general counsel for the National Music Publishers Assn., "We're still reviewing the rulemaking documents, but so far we're optimistic."

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DVD copying in the US, UK

Futuresource_logo It's been an article of faith for the entertainment industry that unauthorized copying = lost sales. The MPAA seems to be the market leader on this front, citing mind-boggling estimates of the billions of dollars in revenue siphoned off by piracy. This week, Futuresource Consulting Ltd., a UK research firm, released a study that purports to confirm the conventional wisdom, at least in part. According to the study, about a third of those interviewed said they had made copies of pre-recorded DVDs in the previous six months. That's up from about a quarter in 2007. Had they not been able to make those copies, a high percentage of those surveyed -- 77% in the U.S., 63% in the U.K. -- would have bought at least a few of them. Strong stuff, but not surprisingly, there are some notable caveats.

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Allow me to infringe on Jon Healey's goodwill and moral rights in the Bit Player franchise...

Larry Lessig had a fascinating copyright idea in the other Times a while back, which gives an interesting perspective on this L.A. Times story about J.R.R. Tolkien's descendants' fight for some of the gross on the New Line Cinema "Lord of the Rings" adaptations. Writes Rachel Abramowitz:

Tolkien obviously isn't Peter Jackson, who directed the franchise, or Liv Tyler or Viggo Mortensen, who starred in it, or New Line Cinema, the studio that financed it, or Miramax, which owned the film rights for a second but couldn't get the movie made, or producer Saul Zaentz, who bought the rights in 1976. He's just the guy who dreamed up the cosmology, the whole shebang of hobbits and dwarfs, orcs, ents, wargs, trolls, whatnot. "Three rings for the Elven-kings under the sky, Seven for the Dwarf-Lords in their halls of stone, Nine for Mortal Men doomed to die, One for the Dark Lord on his dark throne." Those were old John Ronald Reuel Tolkien's words.

But he's dead, so why should Hollywood share any of the dough?

In reference to a far less lucrative literary franchise, here's a good reason why not.

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Nokia phones to come with Warner music

Warner Music Group signs deal Nokia Comes with Music free song downloads The first casualty of this decade's digital music revolution has been music sales, as consumer switched from CDs to 99 cent singles or free downloads. But some industry executives see a chance to reverse the trend and sell music in significantly larger bundles -- more songs, in fact, than the average consumer buys in a year. That's the home-run swing promised by initiatives such as Nokia's Comes with Music, which signed up its third major record company today, Warner Music Group. Universal Music Group, an early advocate of this kind of thing, and Sony BMG were already on board, with EMI still in licensing talks.

The Comes with Music proposition is simple: buy a specially designated Nokia phone, get an unlimited number of seemingly free song downloads for one year. That's seemingly free, not actually free, because the price of the phone will include a hidden sum that Nokia will split with the labels and music publishers.

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ACTA: Turning ISPs into enforcers

Riaa_logo Knowledge Ecology International, a group that seeks to reduce the control wielded by patent and copyright holders, recently posted a list of suggestions that the RIAA purportedly sent to the U.S. Trade Representative for what to include in the proposed Anti-Counterfeiting Trade Agreement. Ars Technica's Nate Anderson took up the issue today, accusing the record companies of trying to disembowel the safe harbor provisions of the DMCA. I checked the legitimacy of the Knowledge Ecology post with Neil Turkewitz, the RIAA's point man on such things, and he said it looked accurate. Not surprisingly, however, he offered a somewhat different take than Ars. Yet he acknowledged that some aspects of the RIAA's proposal for ACTA go beyond U.S. law on the enforcement of copyrights online.

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RIAA argues against Jammie Thomas retrial

The major record companies made their written case today (download the .pdf here) against a new trial for Jammie Thomas, the single mom ordered by a Minnesota jury to pay $222,000 for infringing the copyrights on 24 songs through Kazaa. The main legal arguments include:

  • Thomas downloaded many of the songs in her shared folder from other Kazaa users despite being away that such copying was illegal. Thus, she willfully she violated copyrights even before she made the songs available for others to copy;
  • The RIAA's contractor, MediaSentry, downloaded "numerous" songs in Thomas' shared folder, providing evidence of actual distributions. Bill Patry's arguments to the contrary, the fact that the downloads were by the labels' contractor doesn't make them authorized.
  • Federal law equates "distributing" with "making copies available for others to take," regardless of whether there is an actual distribution.
  • The cases cited by those seeking a new trial aren't relevant or misinterpret the law.
  • The U.S. is obligated under international treaties for the protection of intellectual property to equate "making available" with "distributing."

These are contentions, mind you, and Thomas' lawyers have their own brief.

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Making available=infringing, yes or no?

Chasing_pirates I was reminded today of why I couldn't be a lawyer. My brain's still hurting from the series of briefs I read in Capitol v. Thomas case. Nevertheless, I commend them to you (check out Ray Beckerman's website for a list) for two reasons. First,  the issue in question -- whether the mere act of putting a song file into a folder that others can download from constitutes infringement -- is hugely important. Under the interpretation advanced by the RIAA and the MPAA, making a file available for copying online network is enough to violate its copyright, even if there's no evidence that anyone actually copied it. Although the Jammie Thomas case involved a file-sharing network, the argument could just as easily apply to any folder made accessible to the public via the Web -- for example, the one associated with a certain 9th Circuit Court of Appeals judge.

Second, there's a fascinating line of reasoning in the MPAA's brief about the need to interpret U.S. statutes in a way that's consistent with international treaty obligations. That sort of argument is unsettling, given how aggressively U.S. negotiators have been pushing intellectual property protections on our trading partners. It raises the possibility that copyright owners could win protections through treaties and the courts that they could not get directly from Congress. But Bill Patry offers a counterpoint in this post.

UPDATE -- in a new post last night, Patry also responded to the argument, advanced by Thomas Sydnor of the Progress and Freedom Foundation, that the 8th Circuit's National Car Rental decision doesn't apply here. According to Sydnor, that decision is superceded by the Supreme Court's ruling in the Tasini case, which Sydnor argues established the precedent that "making available" was infringement.

Thomas was the first person sued by the RIAA to face a jury. She lost (to the tune of $222,000) but the judge in her case is weighing whether to grant her a new trial based on his instruction to the jury that making songs available constituted infringement in and of itself. Most of the cases filed by the RIAA include similar allegations of "making available" infringements, but that's not the only evidence the labels bring. Typically, their anti-piracy contractor, MediaSentry, also downloads copies of songs from the targeted file-sharer. Of course, if the RIAA loses the legal battle over making available, that invites a battle over whether MediaSentry's downloads can be considered infringements, given that the company works for the copyright owners.


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Times editorial writer Jon Healey pens opinion pieces about a variety of business issues, and blogs about technologies that are changing the entertainment industry's business model.

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