Tag Archives: i.filesharing

more linkblogging

why? because i keep seeing interesting things but don’t have enough time to get all discursive on ’em.

in the realm of stupid, check out ASCAP’s contribution to the “let’s teach our kids the copyright corporations’ view of copyright” animated video wars: “Donny the Downloader“.

spam subject of the day: apocalyptic daze dinnerware. i like it because, (A), how cool is the idea of an “apocalyptic daze”. and (B), it’s a modifier for dinnerware! like a cool new pattern from noritake.

reflections on the demise of Tower Records

“We’re going to have discounts for consumers to enjoy as they’ve never been seen before in the history of Tower Records,” said Andy Gumaer, president of Great American Group, a Los Angeles-based firm that won the auction …. [LAT 10/7]

Yeah, right.

Last night I stopped by Tower Records to see if I could pick up any deals at their going-out-of-business sale. Yow. No wonder they’re going out of business, when their average CD still costs $18-$20. Take 20% off of something that is 50% overpriced to begin with and, let’s see, do the math — it’s still really overpriced.

I know I signed up for that class action settlement on overpriced CDs (and I never got my check for that, by the way, which would have been a vast underpayment for my ~ 1000 CD collection, no small portion of which was purchased at Tower Records … but it would have briefly afforded me some moral feel-goodness). So what happened? Shouldn’t that have done something to get the prices to something approaching rationality? But no, I guess after the settlement the record companies paid attorney’s fees and shipped multiple copies of the same overstock crap albums to libraries and schools … and then everyone continued merrily on overpricing CDs.

Of course, Tower blamed it on illegal filesharing. “Can’t compete with free.” No, Tower couldn’t compete with reasonably priced. Amazon.com is cheaper even with shipping costs, and iTunes offers 12-track albums for $11.88 on a per-track basis or just skip the tracks you don’t like.

But Tower didn’t have to out-compete Amazon.com and iTunes. Most folks don’t mind paying some kind of premium for brick-and-mortar, which gives you an actual place to go for retail therapy or as part of a date, offers physical browsing and interacting with other people … So a reasonable premium might be, what, 10, 20%? Not the $18 CD. In this market, it’s amazing Tower has lasted as long as it has.

… The LAT (10/22) nicely summed up the goods and bads of this. After driving out all the local record stores with predatory pricing and economies of scale, Tower increased its own prices and proceeded to mismanage itself into bankruptcy. But it was a good record store in terms of selection. So Tower’s demise leaves us with sucky chain record stores and the big-box retailers who “out-chained” Tower and sell only “the hits” — a market that is obviously dwindling.

And the other thing I couldn’t help but notice as I wandered through the vast aisles of youth-oriented crap: There are vast aisles of youth-oriented crap. So what marketing geniuses decided to target the 15-20-yo boy market? Who decides, hey, let’s pick a small age group (a scant 3.4% of the population [US Census Bureau / 2005]) without a very high income, and make them our target demographic? … and the music & movie industries complain about filesharing. Geez.

on file sharing “the daily show”

Okay, I’m sneaking a little break away from visiting family in Virginia to breathe the fresh air of the Internet. I wouldn’t exactly call Virginia a hellhole (at least not in front of the family who lives here), but the Internet cafe (Panera Bakery) I’m surfing at blocks arthur silber’s the light of reason and poor man as Forbidden Category “Adult/Mature Content”. Sigh.

Anyway, one of the sites I can read is Wired. In the recent interview with Jon Stewart & Ben Karlin (Daily Show’s Exec Producer) (“Reinventing Television”) I noticed this commentary:

WIRED: [“The Daily Show”] is among the most popular shows traded online. People download and watch the whole thing, every day. Were you guys aware of that?

Karlin: Not only am I not aware of that, I don’t want to be aware of that.

WIRED: Well, don’t go shutting it down.

Stewart: We’re not going to shut it down – we don’t even know what it is. I’m having enough trouble just getting porn.

Karlin: If people want to take the show in various forms, I’d say go. But when you’re a part of something successful and meaningful, the rule book says don’t try to analyze it too much or dissect it. You shouldn’t say: “I really want to know what fans think. I really want to understand how people are digesting our show.” Because that is one of those things that you truly have no control over. The one thing that you have control over is the content of the show. But how people are reacting to it, how it’s being shared, how it’s being discussed, all that other stuff, is absolutely beyond your ability to control.

Stewart: I’m surprised people don’t have cables coming out of their asses, because that’s going to be a new thing. You’re just going to get it directly fed into you. I look at systems like the Internet as a convenience. I look at it as the same as cable or anything else. Everything is geared toward more individualized consumption. Getting it off the Internet is no different than getting it off TV.

WIRED: Isn’t that going to pose a challenge to the traditional network model?

Stewart: But we’re not on a traditional network: We’re on the goofy, juvenile-delinquent network to begin with. We get an opportunity to produce this stuff because they make enough money selling beer that it’s worth their while to do it. I mean, we know that’s the game. I’m not suggesting we’re going to beam it out to the heavens, man, and whoever gets it, great. If they’re not making their money, we ain’t doing our show.

And on the famous clip of Stewart on CNN:

WIRED: [T]he show was a total sensation: Something like 3 million people saw that – but mostly online. Less than a quarter of them saw it on CNN proper. It was huge, phenomenal viral video.

Stewart: It was definitely viral. I felt nauseous afterward.

WIRED: It was one of the most downloaded clips ever.

Stewart: Really? That’s not true. Pamela and Tommy Lee?

WIRED: OK, maybe that was bigger. But it was amazing that CNN was so clueless about what you gave them. Suddenly, for once, everybody wanted to see Crossfire. They could have taken the show and put it on their Web site, said Click Here, and gotten all this traffic. Instead, everyone had to go through these other sites and back doors to find it.

Stewart: That’s really half the fun, isn’t it? If CNN had put it on its Web site, it would have lost some of its allure.

Karlin: It’s people going, “Holy shit, did you see this?”

And, last but not least, my favorite quote:

Stewart: The Internet is just a world passing around notes in a classroom.

grokster

well — grokster is out. from the beginning:

We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

and from the end:

There is substantial evidence in MGM’s favor on all elements of inducement, and summary judgment in favor of Grokster and StreamCast was error. On remand, re-consideration of MGMís motion for summary judgment will be in order.

J. Souter wrote the majority opinion which apparently and not surprisingly developed an “inducement” theory. Breyer concurrence (with Souter & O’Connor) and Ginsburg concurrence (with Rehnquist and Kennedy).

I saw it here [on Joe Hall’s NQB2] first.

lots of discussions (confession: i haven’t had time to read them yet; just the opinion; my thoughts on metablog commentaries may come later tonight):

my own quick thoughts:

  • This outcome is no surprise. It seemed obvious that the Court was going to take a middle position that would take some kind of bite out of Sony; the real question was how big a bite.
  • So how big is this bite? The Court established an inducement standard, setting out the facts implicating Grokster et al’s knowledge and intent to have copyrighted files copied. The battle for the next few years or decades will be to expand or constrict this standard to the facts of Grokster.
    • The inducement standard is treated as part of the contributory infringement standard in one place, (p.12), but elsewhere as a third test parallel to contributory and vicarious.
    • The new inducement standard on the one hand might not be horrible, if it is limited to the facts at hand: It was certainly clear that Grokster et al intended to follow in the footsteps of Napster. Modeling your entity after another entity that was successfully characterized as a “bad actor” now looks like not so good an idea.
    • But on the other hand, the evidence cited in some instances is pretty patchy/sparse:
      • The majority opinion cites, for instance, that “Grokster’s name is an apparent derivative of Napster.” p.7, and again at p.21 (“Grokster’s name is apparently derived from Napster…”) If that kind of naming can constitute evidence then every e-business and i-product may someday be in trouble.
      • The majority also cites attempts to capture / buy relevant search engine keywords. (p.7 & p.22)
      • The Court also felt that “the defendants’ failure to develop … filtering tools or other mechanisms to diminish the infringing activity … underscores Grokster’s and StreamCast’s intentional facilitation of their users’ infringement.” I really dislike this and any other pro-network-policing implications.
    • More generally, though, I am still concerned with the dotted line this opinion implicitly draws around design decisions. It should be permissible to design your product around precedents, to avoid clearly unlawful behavior. It can and should be permissible to push that boundary in new directions — new innovation proceeds by pushing old boundaries. In the case of copyright infringement, pushing a boundary too far carries its own risk: that you might fall afoul of that boundary and be found liable for copyright infringement. But here, acknowledging the design decisions is evidence in and of itself of “inducement”. That’s troubling, because it requires that designers adopt a willful blindness attitude very similar to that which Judge Posner decried in Aimster. And it could make it difficult to defend and describe innovations in court.
    • I’m also concerned with the very notion of including an intent-based standard in copyright. Copyright is a strict liability regime. Liability is thus quite broad: any actual infringement creates liability, regardless of intent. Adding an intent-based liability to the further-afield secondary liability broadens copyright even further. The Court did attempt to address this, at p.19:

      We are, of course, mindful of the need to keep from trenching on regular commerce or discouraging the development of technology with lawful and unlawful potential. Accordingly, just as Sony did not find intentional inducement despite the knowledge of the VCR manufacturer that its device could be used to infringe, 464 U. S., at 439, n. 19, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.

      Yeah, we’ll see. Here’s hoping the Court is right in its optimistic assertion that its new inducement “does nothing to compromise legitimate commerce or discourage innovtaion having a lawful promise”.

    • The Court also played dangerously with the numbers game, citing “the number of infringing downloads that occur every day using StreamCast’s and Grokster’s software” as a “powerful… argument for imposing liability”. At 12. And again at 23: “As the account of the facts indicates, there is evidence of infringement on a gigantic scale, and there is no serious issue of the adequacy of MGM’s showing on this point…. ”

      These lines will certainly appear in content-owners’ briefs and attempts to get courts to consider the quantity and volume of infringement — the very standard rejected in Sony.

    • The Court states that neither of the Sony uses (recording TV off-air, and librarying programs) was “necessarily infringing”. (p.14). So presumably new uses are not “necessarily infringing”. But wouldn’t this have applied to Napster? Personal file sharing, of degraded-quality MP3s, without commercial exchanges — that was a new use, and not a “necessarily infringing” use. Ah, this is going to beef up the market prong of the fair use test, I bet. Like it needs any more beefing.
    • The Court restricts Sony to contributory infringement not vicarious liability. Some courts assumed so anyway, but Posner in Aimster pointed out that it was really unclear. Grokster resolves that unclarity by describing Sony as merely about contributory infringement, not about vicarious liability.

      On those facts, with no evidence of stated or indicated intent to promote infringing uses, the only conceivable basis for imposing liability was on a theory of contributory infringement arising from its sale of VCRs to consumers with knowledge that some would use them to infringe. Id., at 439.

      at 14. And later at 16-17:

      [The Ninth Circuit’s] view of Sony, however, was error, converting the case from one about liability resting on imputed intent to one about liability on any theory. Because Sony did not displace other theories of secondary liability …

    • On the other hand, the Court seems to want to leave Sony otherwise untouched:

      Because Sony did not displace other theories of secondary liability, and because we find below that it was error to grant summary judgment to the companies on MGMís inducement claim, we do not revisit Sony further, as MGM requests, to add a more quantified description of the point of balance between protection and commerce when liability rests solely on distribution with knowledge that unlawful use will occur. It is enough to note that the Ninth Circuitís judgment rested on an erroneous understanding of Sony and to leave further consideration of the Sony rule for a day when that may be required.

      at 17.

      Added commentary (6/28):

      The real problem is that while the Court leaving Sony untouched in name only, the Court manipulated the entire environment in which Sony lived. Sony, as it played out in the real world, stood for the generic proposition that secondary liability for developing & distributing a technology accrued only where there were no “substantial noninfringing uses” to the technology. The fact that Sony was vague on the vicarious / contributory distinction was fine — it created a grander position for the Sony standard vis-a-vis secondary liability generally. Technological development ought not be held hostage either to existing business models or to those who seek to get around the existing business models.

      Despite the Court’s intentions, Grokster chips away at Sony in two ways: First, the Court hones down the vagueness and wiggle room in Sony by construing it as a contributory case. Second, the Court opens up an entirely new avenue for secondary liability, one with (as yet) no pro-technology out. So, now technology developers, instead of being able to rely on a general, broad principle of protection for multiple-use technologies, have to watch out for both vicarious liability and the new (to copyright) inducement standard.

      The protection for technological development is gone. So what if Grokster developed its technology intending to foster copyright infringement? Once the technology is out there, it started being used to, yes, share noninfringing materials. And those uses will continue to grow and evolve. On some level, Grokster the company is merely an agent for technological evolution. But this decision is not aimed at the agent; it’s aimed at technological evolution itself. If they had wanted to aim at the agent, then they could have restricted their theory to the inducing acts and words — not to the development and distribution of the technology. How much did Grokster’s ad campaigns actually induce infringement? And how much did the mere capability of the technology “induce” infringement? Unfortunately this decision doesn’t (at first reading anyway) lend itself to focusing on the acts. It looks at the acts, but it targets the technology.

      < / end of added commentary >

    • I don’t like footnote 13:

      It is not only that encouraging a particular consumer to infringe a copyright can give rise to secondary liability for the infringement that results. Inducement liability goes beyond that, and the distribution of a product can itself give rise to liability where evidence shows that the distributor intended and encouraged the product to be used to infringe. In such a case, the culpable act is not merely the encouragement of infringement but also the distribution of the tool intended for infringing use.

  • Concurrences:
    • Breyer/Souter/O’Connor concur with the majority but disagree with Ginsburg’s concurrence (Ginsburg/Rehnquist/Kennedy) evaluating Grokster’s potential liability for “contributory infringement”. Breyer agrees with the inducement carve-out, but separately finds that Grokster meets the Sony test for contributory infringement.

      On the other hand, Breyer regularly cites the quantity in Sony — which suggests that even though he is supporting Grokster in this discussion, he has bought into the quantitative analysis anyway. However Breyer does clearly point out that 10% may not be enough, should not be fixed, and that Aimster was a stricter interpretation of Sony than he would have put forth.

      Breyer’s opinion is ultimately the most thoughtful and most directly engages the policy balances at stake. And, demonstrates the most familiarity with the record.

    • Ginsburg: I really take issue with this concurrence. How can J. Ginsburg say

      Here, there has been no finding of fair use and little beyond anecdotal evidence of noninfringing uses. … These declarations (some of them hearsay) include assertions that number of copyright owners authorize distribution of their works on the Internet and that some public domain material is available through peer-to-peer networks.

      (at 5) The fact that Rick Prelinger and Brewster Kahle have not personally used the P2P networks is used against them! Merely providing content which they authorized for distribution over P2P networks was not enough. Contrast Sony: If Ginsburg had been writing it, apparently Mr. Rogers’ statements that he was happy to have his content copied would not have been sufficient. No, Mr. Rogers would have been required to have actually used VCRs to tape his materials off air.

      Apparently all public domain and permissive filesharing constitutes “anecdotal evidence of noninfringing uses”. But shouldn’t distribution of teachers’ guides, satires, etc., count as fair uses? Oh — someone needs to make the compelling case for fair use filesharing! But I suspect nothing would persuade J. Ginsburg. Even blind orphans from Tanzania who get copies of works not otherwise available in Tanzania may not merit a tear if weighed against the all-important interests of large copyright-holding movie companies and cartels.

      Ginsburg is pushing for a reconsideration of quantitative factors, which apparently will look at the state of infringement at the moment the litigation is filed. Needless to say this would stifle and kill all sorts of technological developments.

… and the criminalization of copyright law continues

great:

A federal task force that monitors the Internet caught on to the student and got a warrant

I also love how all these cases have some quote from the RIAA about how much money they lose each year. Unverifiable Saganesque billions and billions…

Teen Convicted Under Internet Piracy Law

By BETH DeFALCO
Associated Press Writer

AP Mar 7, 10:22 PM EST

PHOENIX (AP) — An Arizona university student is believed to be the first person in the country to be convicted of a crime under state laws for illegally downloading music and movies from the Internet, prosecutors and activists say.

University of Arizona student Parvin Dhaliwal pleaded guilty to possession of counterfeit marks, or unauthorized copies of intellectual property.

Under an agreement with prosecutors, Dhaliwal was sentenced last month to a three-month deferred jail sentence, three years of probation, 200 hours of community service and a $5,400 fine. The judge in the case also ordered him to take a copyright class at the University of Arizona, which he attends, and to avoid file-sharing computer programs.

“Generally copyright is exclusively a federal matter,” said Jason Schultz, an attorney with the Electronic Frontier Foundation, a technology civil liberties group. “Up until this point, you just haven’t seen states involved at all.”

Federal investigators referred the case to the Maricopa County Attorney’s Office for prosecution because Dhaliwal was a minor when he committed the crime, said Krystal Garza, a spokeswoman for the office.

“His age was a big factor,” she said. “If it went into federal court, it’s a minimum of three months in jail up front.”

Although Dhaliwal wasn’t charged until he was 18, he was 17 when he committed the crime. Prosecutors charged him as an adult but kept it in state court to allow for a deferred sentence. Garza also said Dhaliwal had no prior criminal record.

The charge is a low-level felony but may be dropped to a misdemeanor once he completes probation, she said.

A call to Dhaliwal’s attorney, James Martin, was not returned.

A man who identified himself as Dhaliwal’s father, but refused to give his name, returned a message left Monday at Dhaliwal’s parents’ home. He said his son had made a mistake, and was trying to put the case behind him. The man declined to comment further.

Brad Buckles, executive vice president for anti-piracy at the Recording Industry Association of America, said estimates say Internet piracy has cost the industry up to $300 million a year in CD sales alone.

The FBI found illegal copies of music and movies on Dhaliwal’s computer, including films that, at the time of the theft, were available only in theaters. They included “Eternal Sunshine of the Spotless Mind,” “Matrix Revolutions,” “The Cat In The Hat,” and “Mona Lisa Smile.”

A federal task force that monitors the Internet caught on to the student and got a warrant, Garza said, adding that Dhaliwal was copying and selling the pirated material.

Teen Convicted Under Internet Piracy Law