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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.

Continue reading ACTA: Turning ISPs into enforcers »

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.

Continue reading RIAA argues against Jammie Thomas retrial »

iLike Rhapsody - why don't more people?

Rhapsody subscription music service announces iLike deal and MP3 storeToday, Rhapsody (a joint venture between RealNetworks and Viacom's MTV Networks) launches another initiative aimed at selling its subscription music service. My colleague Michelle Quinn has the details here , such as Rhapsody's answer to the new Napster MP3 store, but I wanted to drill down on a couple of elements from the announcement.

iLike free MP3 deal with RhapsodyTo me, the MP3 store is the least interesting feature. Yes, it has more DRM-free tracks than the iTunes store, but so does Napster's. More intriguing are the partnerships aimed at introducing more people to Rhapsody's vast celestial jukebox, the core feature of its subscription service. These deals, especially the one with iLike, may mark the first time Rhapsody or any other subscription-music service has been effectively marketed. (When it comes to selling digital music products and services, Apple has been in a league of its own.) Sometime in July, iLike's 28 million users will be able to play for free just about any song mentioned on its network of sites, not just 30-second samples or the handful of full-length tracks posted by selected artists. The same capability will be rolled out gradually through Yahoo and MTV Networks' online properties, such as CMT.com and VH1.com.

There is, however, a non-trivial caveat.

Continue reading iLike Rhapsody - why don't more people? »

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.

Expanding the view on Vuze

Vuze_logo A little more than a year ago, the creators of Azureus -- a file-sharing program based on the BitTorrent protocol -- launched Vuze, a version that ignored bootlegs in favor of authorized copies of TV shows, movies, games and other programming. The idea was to create a file-sharing environment that content owners would want to participate in, and that would present less risky revenue streams. By focusing the software only on authorized files, Vuze could charge fees for files or sell advertising around them without fear of being sued for profiting from piracy. It soon attracted content from dozens of producers around the globe, including the BBC, PBS and TOKYOPOP, although the major Hollywood studios largely kept their distance.

This month, Vuze did an about-face. Unleashing the software's search engine, it enabled users to find and retrieve content indexed by some of the world's most popular BitTorrent search engines. These include Mininova, an index site in the Netherlands now under legal assault from Dutch anti-piracy authorities. As a result, users don't have to fire up a second file-sharing program to find free, pirated versions of the titles Vuze offers on a pay-per-view basis. They can do it through Vuze's search engine.

CEO Gilles BianRosa acknowledged that the move didn't meet with universal acclaim from the companies providing content on Vuze. Yet he said that the change merely acknowledges the reality of the marketplace, and argued that it would help content owners compete better with online bootleggers.

Continue reading Expanding the view on Vuze »

Promoting new TV through p2p

Factory new Spike TV show distributed through p2p It's a needle-in-a-haystack world for new TV shows, particularly when they're on cable. That's why so many networks put pilot episodes online well in advance of the series premiere. Still, the Viacom-owned cable network Spike seems to be going one important step beyond its peers in its efforts to build an audience. Not only is it making the first episode of the new series "Factory" available in advance on its website and through downloadable video stores, it's also trying to spread it through Limewire and other file-sharing networks. Without DRM, or seemingly any form of copy protection.

Spike is working with Jun Group, a firm that specializes in promoting media through p2p networks. Mitchell Reichgut, a principal in Jun Group, acknowledged that other TV programmers had used p2p technology to distribute shows (witness the broad support for Joost, or NBC's work with Pando Networks). But those distributions "have taken place in enclosed, rights-protected `fish bowls,'" Richgut said in an e-mail, while "Spike is swimming in the `ocean' - open P2P networks - where Spike's viewers regularly seek out the latest and greatest new content." In other words, Spike isn't using p2p technology to cut its distribution costs. It's doing it to chase viewers.

Todd Ames, a marketing vice president at Spike, said in an interview that putting the show on file-sharing networks was an acknowledgment of "what people are really doing, and the way consumers are really looking for content." Using DRM, he said, would be self-defeating. "I don’t think there’s a marketer out there who hasn’t been told, `Get me that viral thing.' And `get me that viral thing' when it’s handcuffed and ball-and-chained is pretty difficult."

It's not something he'd do for just any show, but it made sense for "Factory," a semi-scripted comedy about four working-class buddies (it aspires to be a blue collar version of "The Office" or "Entourage."). "There is no better marketing tool for the show than the show itself, but you’ve got to be seen," he said. "I’m dealing with something that has no real celebrity, and has never been seen before.... We’re trying for a bit of a ubiquity here, to go where the people are."

Still, those file-sharing networks are hotbeds of TV piracy, so Spike's approach is more of a toe-dip than a cannonball. You won't see any TV commercials on Spike touting the availability of "Factory" on Limewire. (All the same, Richgut expects more than 1 million downloads of the pilot. Jun Group's secret sauce is its ability to use metadata and other techniques to help the files it promotes bubble to the surface in p2p searches.) Nor does Spike plan to make later episodes available through file-sharing networks, although it expects bootleg versions to wind up there anyway. "My goal is not website traffic," Ames said. "It's really about driving tune-in for the television network."

Of course, if Spike could guarantee an additional million views of "Factory" through p2p, it might make sense to distribute the whole series that way -- with commercials, that is. But Ames said the medium still has to prove its ability to deliver individual shows to the kinds of mass audiences they can reach on cable. The Spike network is available in 96 million cable and satellite homes, after all. The online video business isn't there yet.

"Factory," which has been available online since Tuesday, premieres June 29. Here's a taste of the show, courtesy of the Spike website:

A poster worth 1,000 words

I was in New York last week and saw the MPAA's new poster urging people not to buy counterfeit discs. Dunno if anybody reads posters in the subway, but I have to say, I love this.
The ads also urge people to dial 311 to report bootleggers, nearly 80 of whom have been arrested this year just by New York transit cops.  Now if they can just get the folks selling discs in and around the stations to adopt this labeling system.... OK, OK, many bootlegs are recorded in empty theaters, with sound taken directly from the earphone jacks for the hard of hearing. So the quality often is better than the poster suggests. And yes, we can debate whether New York loses more jobs to DVD piracy than to, say, generous tax incentives for film and TV production in Connecticut and other states. But you've gotta respect the absence of righteousness in the messaging.

More on movies going to cable before DVD

Mpaa_petition An astute reader of my earlier post regarding a possible new, earlier window for movies at home pointed out something significant that I'd missed. Rather than being an isolated initiative, the earlier window fits into a continuum of efforts to create a secure, copy-protected pathway into and around the home for high-def programming. Those efforts could eventually give Hollywood inordinate influence over the technologies used in home networks and device-to-device communications.

To recap: the MPAA has asked the Federal Communications Commission to let it use a copy protection technique called "selectable output control" on high-def movies made available through cable and satellite TV operators before the titles were available on DVD. SOC enables studios to turn off the analog and unencrypted digital outputs from cable boxes and satellite receivers to prevent unauthorized copying. The FCC had banned the technique for existing services, such as pay per view, but left the door open to it being used in connection with an innovative new offering.

The MPAA's petition says that titles would be affected only during the period prior to their release on DVD. Once the movie is in Blockbuster, the people who'd been shut out by SOC -- those whose TV sets relied on analog or unencrypted digital inputs -- would have no trouble viewing it. But a pair of footnotes that I'd overlooked in the petition point out that next-generation home-video formats may also include SOC. These include downloadable movies and Blu-ray discs. So if Hollywood restricts high-def releases of movies to the new early-release window, Blu-ray discs and downloadable files, it could make SOC the rule, not the exception -- at least until the films reach HBO and broadcast TV.

That's not to begrudge Hollywood's desire for more protection on high-def titles. The problem here, IMHO, is the potential for the studios to control which protection technologies devices use. Under the FCC's broadcast flag rules (which a federal court struck down in 2005), the commission, not copyright holders, had the power to decide which anti-piracy techniques were acceptable. One example of why this matters: the commission approved the anti-piracy scheme for TiVo's TiVo To Go feature over the objections of the MPAA and the NFL. But with SOC, the FCC has no say over what's an acceptable level of protection. That leaves Hollywood with a great deal of sway over which anti-piracy technologies get deployed. Of course, the studios want their movies to be seen, too. If consumers rally behind home entertainment and networking equipment that's not compatible with the studios' favored  protection techniques,  the studios will have to adapt to that reality. That's one of the reasons the major record companies finally embraced unprotected MP3 files -- they proved to be the best way to reach the largest audience.

Federal judge OKs sale of promo CDs

promotional CDs legel to sell on eBay federal court rules Show of hands: how many of you have bought a used CD or DVD stamped "Not for Sale/Promotional Use Only"? Tuesday, a federal judge issued what appears to be the first ringing defense of the promo market, rejecting Universal Music Group's lawsuit against someone who sold promo CDs on eBay. UMG claimed that, as the CD cases clearly stated, the promotional discs were merely "licensed" to their recipients. The license agreement barred the discs from being sold, so when defendant Troy Augusto peddled the CDs, he violated UMG's copyrights (specifically, the company's exclusive right to distribute the works). But U.S. District Judge S. James Otero in Los Angeles held that UMG gave up ownership of the CDs when it mailed them to reviewers, publicists and other industry insiders with no expectation that they would be returned. As a consequence, Otero ruled, Augusto was the rightful owner of the discs, and under the "first sale" doctrine, he was entitled to sell them (provided that he didn't keep a copy). And no, Otero ruled, the fact that the CDs were sent out as gifts doesn't affect the recipients' right to sell them.

It's an important ruling, and not just for used CD buyers. It adds weight to the growing body of case law holding that companies can't stop buyers of copyrighted products from reselling them. Just last month, for example, a federal judge in Washington state rejected a lawsuit by Autodesk against someone selling used copies of AutoCAD software on eBay. And for Augusto, who was represented by lawyers from the EFF and Keker & Van Nest, it should mean a respite from record company litigation. Universal , in fact, was the second of the four major record companies to sue. He had agreed to a consent judgment with EMI in 2004, but when Universal sued last year, he figured it was time to put up a fight in court. Looks like he was right.

Movies on cable before DVD?

Mpaa_logo The MPAA has offered a deal to the Federal Communications Commission that could bring movies to cable and satellite viewers more quickly after their original release. The trade-off, though, is that the movies couldn't be viewed by some high-definition TVs, nor could they be recorded by stand-alone TiVos. The FCC moved quickly to invite public comments on the MPAA's petition, meaning that it could decide the issue later this summer.

Kung_fu_panda Ars Technica reported this story over the weekend, emphasizing the restrictions on recording and the unusual alacrity of the FCC's response. To me, however, the more intriguing element is the studios' interest in creating a new release window for home viewing of high-def movies. Today, studios release the DVD version of a film about four months after it hit the multiplexes (bombs often are released sooner, and hits sometimes take longer). Cable pay-per-view and VOD services have to wait another 30 to 45 days for the movie, although Warner Bros. has started experimenting with simultaneous DVD and VOD release. These delays are designed to preserve box-office and DVD sales, but they also concede the market to bootleggers. There's no legitimate way to watch "Kung Fu Panda" at home today, but there's no shortage of illegitimate ones.

In its petition, the MPAA says each of the major Hollywood studios wants to explore deals with cable and satellite operators that would make high definition versions of their movies available prior to their release on DVD. No details about the price or timing were included, but one would expect the movies to carry a premium. To a family of four, paying $30 to see a (relatively) new movie in high def at home might seem like a reasonable offer, compared to paying $50 for tickets and popcorn at the multiplex. Of course, the reasonableness of the premium would depend on how soon the movie became available.

Now here's the tradeoff.

Continue reading Movies on cable before DVD? »

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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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