[JackSpratts]

Rant of the Week

Prepare To Get Screwed By Digital Rights Management

It's not good for capitalism
Charlie Demerjian

A FEW MONTHS AGO, ironically on July 4th, I ranted a bit about Sony, and how it was shooting themselves in the foot with the ATRAC garbage it was trying to foist off on unsuspecting consumers. I got a bunch of letters from a bunch of different sources, from burned consumers to a member of the Digital Home Working Group (DHWG) a consortium of 'over 160 member companies, with more being added daily'.

Before I get too deep into this, let me start out with a letter I got in the middle of June. It was the catalyst for all of this, both the Sony rant, this one and the ones that will inevitably follow. Nothing has been edited, only the names have been removed.

Read your review about AnyDVD. Sounds great, but here's my problem:

I purchased a $2,000 Gateway Media Center PC a few months ago for the express purpose of 1) recording my favorite HBO shows (Sopranos, Six Feet Under, etc.) and burning DVD's for my private collection; and 2) converting my home videos to DVD. All has been going fine, until 2 nights ago.

I recorded Six Feet Under and then opened up Sonic MyDVD, as usual, to import the video, edit out the beginning and ending junk, and burn a DVD for my personal use.

I got a message saying it couldn't be done because the file was copy protected! Huh?

Turns out that a couple of days ago, HBO started encrypting all of its programs with CGMS-A. They allow you to "copy" a program that you record from their signal once. The trouble is that they consider that one- time copy to be recording the program onto your hard drive, not taking it from the hard drive to a DVD. THAT SUCKS OUT LOUD and I am extremely angry, as you can imagine. The files are HUGE and, even though I have a 200 gb hard drive, I can't keep them there forever. MediaCenter records tv shows with a dvr.ms extension.

DO YOU KNOW OF ANY SOFTWARE THAT WOULD GET AROUND THE CGMS-A so that the programs can be burned onto a DVD from the hard drive?? I just want to burn copies for my own use. I don't loan them out, I don't sell them. I think HBO's scheme is a total rip-off and if I weren't so addicted to The Sopranos and Six Feet Under, I would tell them to put their service in a location where the sun would never find it.

THANKS in advance for any info. you might be able to share.

This got me thinking, and reading, and the more I researched, the more I realised that the record companies, and all content providers for that matter, are greedy, arrogant and stupid. They don't care about anything other than squeezing the most money they can possibly get out of you, everything else be damned. If your rights have to be trampled through the use of large bribes (called political contributions nowadays) to get laws changed in their favor, so be it.

The DHWG is trying to be a mediator here, making the walled gardens of the content providers interoperable. It is for your benefit, really, and what is worse, they will tell you that with a straight face. Needless to say, they are wrong, and all they are doing is window dressing. None of the '160+' companies have anything resembling a spine, balls, or guts. They are caving in, screwing you, and pretending to be on your side. I think I prefer the naked greed.

One very important thing to note, nothing in the above letter mentions piracy, selling, depriving the precious content providers of money, or anything else that is not completely legal under fair use laws. If the letter writer attempts to get around the copy protection to burn the things he recorded to his own DVDs for his own personal use, under the DMCA, he is a criminal. So, HBO in one fell swoop pissed off its customers by screwing them, potentially made them criminals, and saved themselves nothing. Brilliant plan, eh?

So, what is this person to do? I told him about Overnet/EDonkey, and now the P2P service has another happy customer, and he has his shows, burned to his personal DVDs for his personal use. This may fall under fair use, it may be a criminal act, and with insanity like the INDUCE act moving forward, it sure as hell will be criminal to so much as think about it in the near future.

If this person had done exactly the same thing on a VCR without Microsoft's , Gateway and Sonic's tender attentions, it would have worked, and HBO would most likely have one more customer. Now it is borderline criminal. Any reasonable person would tell you that it is completely OK to do this, legal or not. RIAA and MPAA lawyers however would love to crush you under their heel and dance about on the bloody stain that you become. Which outcome embodies freedom and democracy again? Which outcome involves bags of cash and campaign managers? Which do you think will win?

Enter the digital music rights companies of the world. Not only do these weasels want to screw you with the 'protection' schemes they are hatching, they want to use them to control all other content providers. That is why I kept going back to the walled gardens theme, Sony is trying to build them, as is Apple, Real, MS and everyone else. If you put any execs from these, and many other companies in a closed room, and get them talking about user screwing, err, content protection schemes, they stand a fair chance of drowning in their own drool thinking of the money. The world would win that one, but they are smarter than that, but not wiser.

Enter the DHWG, or the Digital Living Network Alliance (DLNA) (here) as they are now known. They are composed of the biggest companies in the industry, everyone is there, and a presentation I was sent came from one of the 'big boys' of the bunch. While it was meant to help me understand their point of view, all it did was scare the hell out of me, and convince me that they are collectively doomed to failure. The sad thing is that you and I will pay the price for it while they flail their way into the grave.

I will not name this company, mainly because it is nothing it is doing in particular. It is simply promoting the spineless, myopic 'vision' of the consortium in a sheeplike fashion. The whole group is either actively evil, stupid, or a combination of the two. There is nothing that they are doing that will benefit you and I, but just about everything will hurt us.

The DLNA does not understand the fundamental problem, and how it directly conflicts with capitalism and consumer interests. What they are doing is making a single content protection standard that will be compatible across all members. You plug in your DVR to your TV and it works and that can stream to your wireless laptop in the bathroom just as easily. Everyone is happy, and the consumer benefits while the rights of the content providers are preserved.

No one can argue with that right? I mean the poor multi-billion dollar consortia are only out to keep from getting ripped off so they can line the pockets of their execs and coked out talentless dancers that masquerade as stars nowadays.

Really, what they are doing is trying to take the same old walled gardens, and make them into one walled garden that only the current members can play in. Instead of screwing you and each other, they have started to realise that they will only be able to screw you if they want to get away with anything at all. For them, this is 'fair'.

The fundamental question is simply this. Why would a consumer want to buy something that has more restrictions and less functionality for more money than current solutions? I have asked this question to junior members of the companies to the very top CxOs, and from people on the street to fellow journalists. No-one can give me an answer.

The only answer is greed. They don't give a rat's ass about you, what you think, care or do, as long as they get your money. If you don't want to give them your money, they will take it, and make resistance a crime.

Several execs used me as a sounding board, some because they knew I was an asshole and would give the answers they didn't want to hear, and others because they were oblivious. I would always ask them the question, and none would give me an answer. No one of them could give me a single reason why DRM was a benefit to the consumer. Think about this. You have 160+ companies all sitting in a room discussing you like you are dumb sheep. The sad thing is that they probably have the consumer sized up perfectly.

They can't answer the benefit part because there is no benefit. Some execs tried valiantly and used excuses like 'well, interoperability is better than many different incompatible DRM schemes'. Nice try, but answer the question. The execs either have the proverbial clue-proof coating applied way too thick, or they don't get the idea. I don't know which frightens me more, but I do know at least one electronics exec I talked to is clue-proof, and the other is in the rapacious greed category. Let's just assume it depends on the mustelid involved.

Hands up everyone who thinks the RIAA threatening to sue 12 year old girls and octogenarians made them buy more records? Hmm, I see no hands out there. OK, here's an easier one for you. Hands up everyone who feels the poor underpaid RIAA members would starve to death peddling $18 CDs laden with crap if they couldn't trample your rights? Nope, no hands there either.

Now, how about this one. Hands up everyone who would buy more CDs if they actually worked in your car without having to use illegal programs to rip them? Wow, lots of hands there. How about if they were forced to put out good music you wanted rather than what they want you to buy? Wow, more hands. Think it means something? If you are a record exec, or a DLNA member, it means the thieves are barking at your door. Call the lawyers, start the lawsuits

If the foisted, crippling, unwanted, unloved DRM isn't bad enough, it gets worse. One of the key bullet points in an industry presentation I was given said 'IP must be licensed under reasonable, non-discriminatory terms'. On the surface that is a fair sounding proposal because everyone get the same things at the same price. The world is a happy, controlled, interoperable walled garden. The execs get their money, and drive around in large cars. What more could you want?

Well, if you run Linux, the ability to play the DVD you just bought might be useful. The terms reasonable and non-discriminatory are the same ones Microsoft used to shut Linux out of several other markets. Now the entire consumer electronics industry, hardware, software and content providers, are all getting together and slamming the door on Linux, and probably anyone else who dares fly the banner of the consumer. They can and will shut you down, and if they can't do it legally, they can spend you into the ground in court.

That brings us back to the whole question of what the DLNA does for you. The short answer is nothing that would be considered good by anyone who does not actively talk to their shoes and to an occasional wall. It does allow DLNA members to control what you do, how you do it, and how you will pay them for the privilege. Comforting thoughts, don't you think?

Let me put a personal spin on this. I have not bought a CD since 1998. When the record companies sued Napster, I sat back and said 'this is wrong'. I thought I would wait it out, and not give them my money until a decision was reached. If the record companies prevailed, I would never buy another CD or give any RIAA member my money. If Napster won, I would go back to buying more than the CD or two I bought every week.

Fast forward. The RIAA won and lost. They spent Napster into the ground, and while I think the fight is far from over, Napster is gone. Sticking to my morals, I have not bought a CD since then, and I have the dubious honor of being able to say the last CD I ever bought was Kid Rock's Devil Without a Cause. The sad part is that I downloaded most of the album from Napster before I bought it, and said 'hey, this isn't bad'. I then bought the album. God, I need to bathe.

Overall, with the new wave of DRM infected consumer electronics breaking over us, you stand to lose what few rights you have that are not currently criminalised. The problem is a simple one. The DLNA will not allow itself to admit that the only thing that matters is giving consumers more for their money. Charging them more so you can screw them harder does not work under capitalism, so they are attempting to change the system.

Until they can answer the question, they are doomed to failure. Can anyone in the DLNA answer it?

Here it is again: "Why would a consumer want to buy something that has more restrictions and less functionality for more money than current solutions?"

I just wish one of you spineless but very rich companies had the balls to stand up and do the right thing for the consumer. Fat chance, but I thought I'd ask.
http://www.theinquirer.net/?article=19246


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Don't Bite on Fresh Bagle, Security Experts Warn
Susan B. Shor

F-Secure gave the worm a Level 2 threat warning, its second-highest level. Symantec, which calls the virus Bagle-AV, rated it category 3, or a moderate risk. The worm can also spread itself through peer-to-peer networks. It hunts for folders with a "shar" substring and copies files into the folders.

Users of Windows operating systems have another e-mail worm to worry about today, as the latest variant of Bagle, Bagle-AU (W32/Bagle-AU), wends its way around the Web.

Antivirus companies say that Bagle, which has been around since January, has been reported in more than 30 countries so far today.

Antivirus protection companies have been rating the worm a medium to high risk.

"This seems to be mostly the initial seeding of the virus, which is done by the virus writers by spamming the virus around," Mikko Hyppönen, director of antivirus research at F-Secure, told TechNewsWorld.

Middling Risk Level

F-Secure gave the worm a Level 2 threat warning, its second-highest level. Symantec (Nasdaq: SYMC) , which calls the virus Bagle-AV, rated it category 3, or a moderate risk.

The tainted e-mail may show up with different subjects -- such as "Re: Hello," "Re: Hi," "Re: Thanks " or "Re: Thank you!" -- and contain executable file attachments with names like "Price," "Joke" or "Runme" and the extensions .exe, .scr, .com or .cpl.

If opened, the worm will take over the computer and try to spread itself to other computers.

"Most likely this is done to turn it into a spam robot. It's unlikely to delete anything, as that would just blow the cover of the virus," Hyppönen said.

Update Your Definitions

Like earlier variants, the worm -- also known as I-Worm.Bagle.at, WORM_BAGLE.AT and W32/Bagle.bb@MM -- will disable antivirus software if antivirus definitions are not up to date. It then sends itself to e-mail addresses found on the infected computer using its own e-mailing engine, drops more malware and downloads code from the Internet.

The worm can also spread itself through peer-to-peer networks. It hunts for folders with a "shar" substring and copies files into the folders.

Gregg Mastoras, senior security analyst at Sophos , said if it spreads widely enough, Bagle-AU can slow down or otherwise impair e-mail systems. Sophos puts the threat at medium-high on its temperature gauge.
http://www.technewsworld.com/story/D...arn-37717.html


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Bands Debut Dual - Sided CD / DVD Hybrid
AP

A new hybrid CD format that offers standard CD audio on one side and the enhanced media capabilities of a DVD on the other made its nationwide debut this week.

The first new albums in the DualDisc format were released Tuesday by Warner Music Group rock bands The Donnas and Simple Plan.

Several DualDisc versions of existing albums were issued as part of a test in two cities earlier this year.

The DualDisc was designed to be compatible with most devices, including game consoles and personal computers.

Simple Plan's ``Still Not Getting Any ...'' features 20 minutes of behind the scenes footage of the band recording the album, photos of the band, lyrics and other content.

The DVD side of The Donnas' ``Gold Medal'' also includes a music video, behind the scenes footage and lyrics.

Retailers are generally offering the new hybrid formats at prices comparable to standard audio CDs.

Both Simple Plan and The Donnas' DualDisc versions were selling as low as $9.99.

The company plans to release DualDisc-format albums by the Grateful Dead and the band Trapt next month. Other recording companies are expected to issue DualDisc-format releases in coming weeks.
http://www.nytimes.com/aponline/tech...its-CDDVD.html


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Sony BMG, Grokster Join Forces

In an unusual alliance, the record giant will offer free and paid music via the file-sharing network.
Jon Healey

Breaking from the rest of the entertainment industry, record giant Sony BMG is cooperating with the Grokster file-sharing network on a venture that combines free music sampling with paid downloads.

Dubbed "Mashboxx," the venture marks a surprising alliance between a major record label and an online network that the entertainment industry has blamed for rampant piracy.

The initiative reflects the growing interest among record labels and movie studios to harness — rather than fight — the popularity of file sharing.

The effort drew a skeptical response from some file-sharing advocates, however, who said Sony BMG wasn't really embracing the "peer to peer" technology that millions of people use every day to copy music for free.

Although many of the details are still in flux, people familiar with Mashboxx said that it would probably work like this: When users search for a Sony BMG track, the system will allow them to download only authorized versions of the song.

In some cases, these could be free promotional tracks that come with an offer to buy higher-quality renditions of the music. Mashboxx hasn't set any prices. Many online music stores sell songs for 99 cents each.

The idea behind the venture is to let people continue to use file sharing to discover music at no charge, while encouraging them to pay for the songs they want to keep.

Some of the technology for Mashboxx probably will come from Snocap Inc., a start-up launched by Shawn Fanning — the college dropout who created the pioneering Napster file-sharing network. Mashboxx is being run by Wayne Rosso, a file-sharing firebrand given to rhetorical flourishes about ignorance and evil in the entertainment industry.

Rosso and executives at Sony BMG, Grokster Ltd. and Snocap all declined to comment. Sony BMG was created last summer by the merger of the music divisions of Sony Corp. and Bertelsmann.

Music industry insiders noted that Mashboxx was one of several new efforts to convert file sharing into legal downloading.

"There's a lot of serious effort on the label side of the table to try to make this work, more than you would have ever expected to see," said one record company executive who asked not to be named. "There's some heavy lifting, but everybody's really talking through the possibilities."

At the same time, though, the Recording Industry Assn. of America continues to fight illegal downloads. The trade group said Thursday that it had filed lawsuits alleging copyright infringement against 750 users of file-sharing networks, pushing the total sued to more than 6,000.

At least one other file-sharing company has agreed to embrace Mashboxx, a music-industry source said. Executives at several others said they wouldn't participate but were encouraged by the cooperation between their industry and the corporations that supply the content.

"That's great that they're at least trying to experiment," said Michael Weiss, chief of Streamcast Networks Inc., which distributes Morpheus. "I'd like to see more experimentation and find out what really does work."

The difficulty, said Weiss and executives at two other file-sharing companies, is that users are likely to abandon any file-sharing network that restricts their downloading in favor of the many networks that don't. "I think the right approach is to take consumers' behavior as it is and try to leverage that," he said.

The entertainment industry and file-sharing companies have been at each others' throats since Fanning rolled out the original Napster in 1999. But both sides say they're now engaged in extensive discussions about working together.

A file-sharing trade group is proposing to compensate copyright holders through advertising revenue, subscription fees and paid downloads. Like Mashboxx, the Distributed Computing Industry Assn.'s approach relies on technology that can identify files and set rules for how they can be shared.

The impetus for the Mashboxx project, sources said, comes from Sony BMG Chief Executive Andrew Lack, a cost-cutting former NBC and CBS executive whom Sony hired in 2003 to right its listing music division. Hoping to broaden the appeal of Mashboxx, Lack has urged leaders of other record firms to join him in supporting the initiative.

Some crucial issues remain, including pricing and what form the promotional tracks should take. Another thorny issue is what to do about files from other companies' catalogs — for example, whether users would be free to share a movie or a video game.
http://www.latimes.com/business/la-f...lines-business


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Blalock Goes Nuts at Night

Fans are talking today about a talk show appearance by Enterprise star Jolene Blalock last night on CBS' Late Late Show. Apparently Blalock's brain is still wandering around the Expanse because it looked like she wasn't all there. The actress didn't seem to even know where she was. Fans are debating whether or not this was the celebrity flake-out that finally beat the infamous Farrah Fawcett appearance with David Letterman some years ago. The clip has been making the rounds on the file sharing systems. I'd like to say it was entertaining but it was more disturbing than anything else. Watch the scandal sheets for impending news of Blalock's trip to rehab...
http://filmforce.ign.com/articles/561/561279p1.html


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Laree ‘n’ Hillree sittin’ in a tree…

How I Learned to Love Larry
Hilary Rosen

She was the champion of the music industry. He was the voice of the people. It was a deathmatch made in heaven - but they found common ground.

It was three months after I'd left my job as CEO of the Recording Industry Association of America, where I'd worked for 17 years. After spending the summer decompressing in Italy with my family, I found myself last fall in Los Angeles at USC anticipating a public duel with Lawrence Lessig, the noted Stanford Law School professor. Lessig and I were longtime rivals in the ongoing debate over copyright and technology. To present a balanced program on the issue, USC was paying us a tidy sum to spend two days disagreeing with one another in front of a lot of people. Despite my intention to leave my old competitive juices at the bottom of the Mediterranean, they were flowing again.

On the first night, the university's Bovard Auditorium was packed. Lessig started with a tortured and sarcastic history of copyright protection. He railed against such public laws as the Digital Millennium Copyright Act, which created a US leadership role in protecting digital works against technologies designed to circumvent copyright protection. (That's not how Lessig described the DMCA; that's my view, of course. I had been instrumental in persuading Congress to pass the law in 1998.) When it was my turn, I pointed out the value of laws that kept pace with technology, rather than those that were usurped by it. Lessig also complained about the Copyright Term Extension Act, which adds several years to the terms of protected works. I countered: Farmers can leave their property to their children; why shouldn't songwriters be able to leave their songs to their children?

So the debate was familiar for the first half hour. The old rhythms set in. Lessig was the fiery populist arguing against the monied interests. I insisted that it was important to protect creative works and the investments that made them possible. In a contest of greed versus theft, I suppose I chose greed as the morally superior position.

When he heaped praise on me and my friend Jack Valenti, then head of the Motion Picture Association of America, saying how powerful and good we were at our jobs, so powerful in fact that our respective industries were further ahead in this policy area than anyone really knew - I perked up. Now he is making sense, I thought. I knew it was a backhanded compliment. But it worked for me.

I was warming to Lessig. He wasn't defending theft; in fact, he was against it. That's why he had helped found the nonprofit Creative Commons. If the essence of copyright law is to allow creators to have control, he argued, then there are ways to maintain ownership of copyrighted works and still make it possible for the average person to license the use of those works. After all, what's wrong with a licensing system that makes music more accessible to more people?

Until that moment, I had dismissed Creative Commons as a sleight-of-hand maneuver, a way to mouth platitudes about the benefits of copyright while in fact joining ranks with the Everything for Free Foundation. But Lessig was making a persuasive case. This is going in the wrong direction, I remember thinking. Had I lost my edge?

Hardly. I'm still cynical about its origins, but I've come to love Creative Commons. The organization seeks to calm some of music's roiling waters, from unlawful sampling to file-sharing. As the RIAA continues to use the courts to discourage the illegal, widespread distribution of songs through peer-to-peer systems, there has been a chilling effect on other, legitimate uses. Many musicians and consumers fear reusing pieces of others' songs - even for noncommercial purposes. Nobody wants to get caught in the crosshairs of industry lawyers.

Licenses from Creative Commons allow musicians to dictate how their music will be used - even if they sign with a record label (as long as the CC terms are part of the contract). Some artists want their music distributed as widely as possible, with no payment or control requirements; for them, an unlimited CC license is a way to declare these intentions.

For all its promise, there are challenges CC can't address. The biggest problem in commercial sampling isn't that artists don't know how to give away pieces of their work; it's that they and their producers want to get paid more - a lot more - for smaller bits of their songs. Think George Clinton, not Gilberto Gil. And unlike a book, where an accessible, online version often whets a reader's appetite for the paper version, there is little appetite for another copy of the same song - most music sold online is in song format. There's no point in assuming you can sell copies of the same recording you're giving away. Will it whet a listener's appetite for a concert ticket? Sure, but those who benefit from the sale of concert tickets rarely invest in the recording.

Meanwhile, as I have long predicted, the music industry is slowly restructuring itself. Artist contracts are for shorter duration, and every facet of an artist's output is up for negotiation. Indeed, artists have more control than ever before, giving rise to, in some cases, business models with the artists as the central business unit, in effect buying the services of middlemen to execute promotion, recording, and distribution. Increasingly, free use and access are employed to stimulate sales. Prince signed a one-record deal with Sony Music that made sure he could give a copy of his CD to every fan who bought a concert ticket. Pearl Jam left its longtime label to release a live album through its fan club. It has also authorized multiple releases through a bootleg program. The band hires services from the labels, as needed. Given these changes, the industry ought to embrace Creative Commons as an agile partner providing tools for new ways to do business.

But let's not go too far into dreamland. Yes, the current system of copyright can be antiquated and user unfriendly, and its enforcement can be discriminatory, but it has created a lot of wealth for individual artists, not just corporations. More important, it has created a vast body of art for the public. Let's not dismiss it wholesale.

After the debate that evening, Lessig and I strolled beneath the sycamore trees on the USC campus. We talked of his dream for Creative Commons and how artists and fans would benefit if the rules were clearer and if we all could enjoy more walks in the commons. Our debate on the second night would not have much disagreeable fervor.


Creative Freedom for All

Done right, copyrights can inspire the next digital revolution.
Lawrence Lessig

"Get a license or do not sample." So held the Sixth Circuit Court of Appeals in September, in a case that asked whether there is any right of fair use in musical recordings. There is not, the court ruled. Sampling is piracy, and the law bans piracy.

You may think that's OK for pop stars. But forget about them for a moment. Think about your kids. After they get bored downloading all the music they can find, they're going to discover the power - practically bundled into the machine if it's a Mac - to remix the culture they've collected. They could add a bass track to a violin concerto. They could make a home movie and sync Tom Petty to the images. They could splice together a politician's speeches to prove she's a waffler. These activities will become second nature to the iGeneration and could well represent the next great digital revolution - exploding demand for machines, bandwidth, and software.

Yet these ordinary uses of these extraordinary technologies are all presumptively illegal today. Digital devices copy to create; to copy copyrighted content requires permission from its owner. And while the tradition of fair use with text is fairly mature, that tradition is much weaker with film, photographs, and sound. In the Sixth Circuit, at least with sound recordings, there is apparently no tradition at all.

There are a growing number who believe that this regime doesn't make much sense. If John Coltrane didn't need a lawyer to create his immortal version of The Sound of Music's "My Favorite Things," why should our kids? And while many of these people don't necessarily want to change existing law, they do want a way to make its burdens easier to overcome. They seek, as the Sixth Circuit proposes, a license to sample.

This is the aim of Creative Commons - to help artists and authors give others the freedom to build upon their creativity, without calling a lawyer first. Copyrights protect important values. They are essential to creativity, even in a digital age. Yet the current version of copyright law was not written for a world of digital creativity. As applied to these technologies, it often restricts more than it inspires. Creators who use the CC licenses are saying: We have built upon the work of others. Let others build upon ours. Consistent with the law, we can enable this next great revolution.
http://www.wired.com/wired/archive/1...w=wn_tophead_4


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High-Profile Litigator Has Wild Ride
Mark Thompson

Michael Page's 13-year legal career as an intellectual property litigator hit high and low points in rapid succession over the summer.

The nadir came in early August when one of Page's clients, a company in St. Charles, Mo., that manufactured and sold DVD copying software, announced that it was going out of business. The company, 321 Studios, had already been effectively shut down by three preliminary injunctions resulting from a barrage of copyright-infringement lawsuits brought by Hollywood movie studios and other plaintiffs.

But that was followed by the zenith just 15 days later, when the 9th U.S. Circuit Court of Appeals handed down a ruling in favor of another one of Page's clients, Grokster Inc., a distributor of peer-to-peer file-sharing software. Page, a partner at San Francisco's litigation boutique Keker & Van Nest, describes the Grokster ruling as his most significant legal victory ever.

You might think that would have relieved some of the sting of the defeat that he suffered in the 321 Studios case. Instead, Grokster's triumph only made it worse. That's because Page interpreted the Grokster ruling as a sign that 321 Studios would also have ultimately prevailed if only it had been able to carry on the fight.

"Losing a case that I thought we should have won, just not being able to see it through to the appeals court, having to basically quit while you're down -- I would say that's the biggest disappointment," says Page. "There were some really important issues of law but unfortunately [the company] could not survive long enough to get them to an appellate court."

The two cases illustrate a specialty area of IP law that Page and others at his firm have carved out for themselves in recent years -- defending companies against suits claiming violations of the anti-circumvention provisions of the Digital Millennium Copyright Act. In an era in which digital copies of music, movies and other forms of entertainment content are easily -- and freely -- traded across the Internet, movie studios, record companies and other entertainment producers and copyright owners have increasingly relied on the new copyright law in trying to put the brakes on digital swapping.
http://www.nylawyer.com/news/04/10/102804j.html


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Online Extra: Skype Is "What Evolution Is All About"

Co-founder Niklas Zennström explains the technology behind peer-to-peer networks and their market implications

Swedish entrepreneur Niklas Zennström achieved notoriety in 2000 when he and his Danish buddy Jonas Friis launched an Internet file-sharing service called KaZaA that quickly overtook Napster as the leading venue for swapping music files. They eventually sold KaZaA to Sharman Networks and went underground to fight off lawsuits by the recording industry.

But in 2003, Zennström and Friis reemerged with another radical concept: Free phone calls over the Internet using the same peer-to-peer networking technology that KaZaA employed.

The telecom industry has been no more welcoming of the incursion, but the duo's new venture, called Skype (as in "hype") has struck a cord with the digital set. More than 28 million copies of the software that powers Skype on PCs, Macs, Pocket PCs, and Linux machines have been downloaded in the last 14 months -- making it the fastest- growing Internet application in history. Nearly 13 million people have registered to use the service.

On Oct. 20, Skype announced two new milestones: More than 2 billion minutes of talk time have been logged on Skype since it went live in late August, 2003. And for the first time ever that week, it handled more than a million simultaneous conversations.

Zennström spoke by phone (on a conventional line) in July with BusinessWeek's Paris-based European technology correspondent, Andy Reinhardt about peer-to-peer networks, telecom regulation, and European innovation. Here are excerpts from their conversation:

Q: A lot of people think peer-to-peer (P2P) is about illegal trading of copyrighted materials. But clearly, you've seen another opportunity with Skype. What is the potential of P2P?
A: It may be a bit boring, but peer-to-peer is just a term for a computer network architecture. Either you have peer-to-peer or client/server. What happened was that file sharing was the first consumer media application that took advantage of large-scale peer-to-peer technology. If you asked any computer scientist, he would tell you that they were doing peer-to-peer networks 20 years ago. Basically, you're just connecting two computers.

Peer-to-peer has nothing to do with copyrighted songs, or MP3s, or MPEG. It's just an architecture -- and it's the best architecture, in my mind -- for widespread networking, where you can locate addresses and transfer large amounts of data. It's very generic.

What that means is you can find a file, a document, a music file, a movie, whatever, and then download it. With voice, you're doing exactly the same thing: You're locating an individual, and then you're transferring is a stream of data, which happens to be voice communication.

That's why the same underlying peer-to-peer architecture can be used for both of these things. Obviously, it could be used for a whole lot of other things, too.

Q: I guess P2P has the potential to make a lot of new things possible?
A: Precisely. It opens up the door to a whole range of opportunities that we could never do before. It has very interesting economical implications. A peer-to-peer architecture affords zero marginal cost to transfer large amounts of data. It's more interesting now than it was 10 years ago because now we have a worldwide broadband Internet infrastructure, which basically is a pure pipe.

But there are still huge problems with the Internet. You can't just address people easily by IP [Internet protocol] addresses because they're behind firewalls. So you need to have some kind of smart mechanism to search for and locate people, in order to send them data. That's what KaZaA used to locate files, and now Skype uses it for people.

Q: Where else could this go, beyond files and people?
A: It could be other resources -- you know, storage, video streams. But this really works on two levels. First there's the peer network, and I've been stressing that because it's the enabler for everything. But then there are the applications. We could not have foreseen -- wow! -- all the things that could be developed on top of P2P.

For instance, when we first used peer-to-peer technology, we didn't foresee that we could do voice. It became obvious to us after some time, but when we started we didn't know what the applications would be. But when we applied the technology to various industries, we realized we could create a sustainable competitive advantage.

That's because, in the normal system you have a marginal cost for every unit you add. If your network is client/server-based, you have to add a new network card for each new Web server, central switch, and so on. But in a peer-to-peer network, you're reusing the system resources in the network, so the marginal cost of producing a phone call or a file transfer or something else is zero.

That's why it's a great enabler, because now we can have free voice communication. It's possible because the world has already made investment in the broadband Internet, and consumers are paying for broadband connections. This allows them to take more advantage of the investment they've made.

Q: Are the opportunities to pursue your vision greater in Europe than in the U.S. because of potential legislative or regulatory issues there?
A: I don't think there's any regulator who would even dream about regulating peer-to-peer, per se. That would be devastating for the evolution of technology. But they might try to regulate applications of it, like file sharing or telecommunications.

Q: But even though the underlying technology is unregulated, there seems to be a backlash against stuff happening at the application level when the implications of P2P begin to hit various industries. They circle the wagons.
A: This is nothing more than a technological evolution. Maybe it's a disruptive technology, which means the evolution takes a leapfrog. But that means you can do something better than you could before because you do it completely differently. That's what evolution is all about.

If you try to kill these kinds of breakthroughs with regulation, you're going to set back technological evolution and set back society. Especially when it comes to communication, which is what this is all about. Communication is the infrastructure that makes economies stronger. You're not doing your country a favor by trying to regulate this. These technologies are having an impact on legacy industries, like telecom or media distribution.

And whenever there's disruptive technology, the default reaction among the incumbents in an industry is fear and trying to stop it, rather than embracing it and working with it. They try to lobby and legislate against it.

Q: Is there any difference, as far as you tell, in how far those efforts are getting in the U.S. vs. in Europe?
A: In Europe telecom regulators are pretty much saying the same thing, which is that they want to have a hands-off approach and don't think it should be regulated. But other voices want to apply regulations. They're saying this is a technology that allows people to talk to each other, and since we have existing regulations for the telephony network, let's apply them to this completely different technology because people can talk with it. That's not a good thing to do.

There are reasons why we have regulation, and one is that telecom is an industry that was historically heavily monopolized but has recently been opened up to more competition. The former monopolies had an unfair advantage because they had the network and all the customers. So you needed the regulators to open up the network and allow competitors to tap into it on a fair basis. But obviously, voice-over- IP [VOIP] -- or any of these new technologies -- aren't monopolies.

The telephony industry is subject to regulations about emergency calls. There are some people who say that, if you're using an application over the Internet that's for voice communication, it should be subject to the same requirement to provide emergency service.

But that's a bit narrow-minded. Nowadays, people communicate in so many different ways. Why not make sure that emergency centers can accept communications from a variety of different sources, so that you could send a text message instead of making a phone call? If there's a burglar in my house, I don't want to pick up the phone: I want to send a text message because it's quiet. Q: What it is about the Internet, technologically or culturally, that has made possible the emergence of technologies as disruptive as VOIP?
A: The Internet is simply a network built to take a packet of data from one place to another. There are no services on the Internet itself: It's just a carrier of data. And it's completely open, which means you're allowing anyone in the world to innovate new services and applications. There are no barriers, because you don't have to manufacture big machines or switches. And you can innovate anywhere in the world -- in India, Estonia, the U.S., or France -- and you just upload the application to a Web server, and it's available worldwide. It's the perfect open and free market, without trade barriers.

The great thing about the Internet is that it allows for open innovation. The speed of innovation is growing exponentially. What we've seen in the last five years is the same level of innovation we saw in maybe 20 to 50 years before that. It's possible because of the aggregation of technology and interconnected networks. So, the Internet is, in some senses, the fundamental infrastructure for speeding innovation.

Q: What about innovation in Europe? There's a huge amount of technical talent here, and Europe has produced lots of world-changing inventions. But there are negatives: The level of financial support for R&D by governments and corporations is low. So what are the advantages and disadvantages for you of being based in Europe?
A: The advantage of being in Europe is that you're in neither of the huge markets. You're not in the U.S., which is very large and homogeneous. It's such a big market. If you make it in Sweden, that doesn't mean you'll make it in France. They have very different cultures and languages, and different ways of selling things. Europe is very fragmented. It's a fiction that the European Union has created a single market.

Q: That affects entrepreneurs in good ways and bad. It means they have small domestic markets, but they also have to learn how to be global sooner than American companies, which can grow up completely in a single domestic market.
A: Take somebody like me, from a small country like Sweden with 9.5 million inhabitants. It could be an interesting market for some kinds of businesses, but not for the kind I'm doing. So you're forced to look outside your home country. People learn foreign languages early and know they have to do business elsewhere. There are a lot of very successful Swedish multinationals that have figured that out, like Ikea, H&M, Volvo, Ericsson.

American companies don't have to look outside. That's the advantage of Europe -- most of all for people in the smaller countries like Sweden or the Netherlands.

The disadvantage is that the environment in Europe is very bad for entrepreneurs to create businesses. There's too much regulation, too many taxes. And I think people in Europe are far less entrepreneurial than people in the U.S. or China.

Q: People say that the nature of innovation itself is changing, especially for big corporations. Things are getting so complex and expensive that many companies can't afford to go it alone. Could this prove to be an asset for Europe, given its long experience in collaborative ventures?
A: The world is getting more complex, and with the speed of innovation you cannot do everything. In the old days, when we had poorer communication and access to information, big corporations had advantages because they could do everything in-house. Now, it's so easy to get information that you don't need to be big anymore. You could even say that today, being big is a disadvantage. It's no longer the big that beat the small. It's the fast that beat the slow. And big companies tend to be slower.
http://www.businessweek.com/magazine...6090_mz063.htm


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Order Out Of Chaos: The Peer–to–Peer Paradigm
Bryn Loban

The aim of the first part of this paper is to provide an overview of information retrieval in Peer–to–Peer (P2P) information systems in the file–sharing domain. Starting with a general overview of the concept of P2P information systems, the paper then focuses on five desktop–accessible P2P information systems: Napster with its clones OpenNap and eDonkey, and Gnutella and FastTrack (i.e., Kazaa). A detailed description is given of the attributes and properties of each P2P file–sharing information system, followed by an evaluation of the respective P2P file–sharing applications, taking each in turn and examining their respective strengths and weaknesses. This paper concludes with a critical comparative analysis and gives some suggestions for further investigation.
http://www.firstmonday.org/issues/is...ban/index.html

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Your tax dollars at work

Attorney General Warns Students Of Consequences

Getting the word on intellectual theft from the top
Monte Reel

Many of them had heard the lectures from authority figures before: Don't illegally download songs and games from the Internet because people make their livings selling those products, stealing is a crime, every crime has unseen consequences, and so on.

But this time, the person giving the lecture was U.S. Attorney General John D. Ashcroft, and he was painting an especially harrowing picture for about 100 area high school students.

"When you download stolen songs or movies or computer games posted on the Internet, you're stealing," he told them.

He talked of songwriters and film production workers who suddenly found themselves jobless because of revenue stolen from their companies by Internet pirates. He told of a young man who plugged his cell phone into a charger at night, then woke to find his desk and computer in flames -- the malfunctioning battery he used was a knockoff of a name brand, which Ashcroft described as another form of intellectual property theft. Then there was the tale of the Long Island boy who suffered grave medical reactions after he was mistakenly given a knockoff prescription medicine after a liver transplant.

"You may not think a theft online is as consequential as stealing something from a store, but even stealing a song is serious," Ashcroft told them. "I think you can see how stealing intellectual property puts at risk the very lives and well-beings of these people."

The students were at the Justice Department's Great Hall yesterday for a day-long student forum on intellectual property theft. Ashcroft's speech -- along with question-and-answer sessions with songwriters and convicted intellectual property thieves -- resulted from a partnership between the government and Court TV. Students came from Howard D. Woodson Senior High School in Washington; Thomas Edison School of Technology in Silver Spring; Friendly High School in Fort Washington; and Hayfield Secondary School in Alexandria.

The event will be aired in about a month on Court TV as part of its public affairs program "Choices and Consequences," according to network officials. Tapes of the event also will be included in materials distributed to 4,000 to 5,000 schools as part of a nationwide education drive.

Gerrod Wilson, 17, was one of the students chosen to participate who had a special interest in the subject. He and the other students enrolled in Friendly High School's Applied Law class -- many of whom are interested in law enforcement careers, he said -- were among those taking part in the workshops and discussions.

Wilson said he has downloaded music from the Internet a few times -- but not anymore.

"I don't think kids are aware of how much of a crime they've committed," said Wilson, who hopes to become a defense lawyer.

Edward Kendrick, 18, of Gaithersburg said downloading music and games "is pretty much common practice" among high school students, but he said he's never done it.

"My father works with a tech support center, so he'll know if I download anything illegally," said the Thomas Edison senior. "I'd get in more trouble with him than anyone else."
http://www.washingtonpost.com/wp-dyn...2004Oct20.html


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See Jane’s browser get blocked

See Dick's P2P

NSW Schools Trial New Porn Filter

THE NSW education department is trialling a new internet filtering system, as three high school students were suspended for looking up pornographic images on school computers.

The three 14-year-old Year 8 students from Elderslie High School at Narellan, in Sydney's south west, were given a "short term" suspension on Friday after a teacher caught them accessing pornographic websites in the school's computer room.

"The students were caught by teachers who were apparently monitoring what was going on and saw all the kids crowding around the computer and sprung them," an education department spokesman said.

"I guess it probably happens from time to time but this is the first one I have heard of for a while.

"And bear in mind the number of kids we have got in our schools, it is quite a minority."

The spokesman said a centralised filtering system was in place in NSW schools but the blocks did not necessarily filter out all overseas web sites.

He said a new superior system was currently being trialled as part of an $84 million plan to tighten internet security.

The new system involves giving students an individual electronic learning account with their own email address.

The education department spokesman said increased security would ensure that inappropriate internet sites were blocked, bad language use stopped and teachers could monitor chat rooms.

"The e-learning accounts have been trialled in a couple of schools and they are to be rolled out statewide," he said.

The date for the completed rollout was not yet available, the spokesman said.
http://australianit.news.com.au/arti...-15319,00.html


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Landmark Music Download Case In Court
Brisbane

Downloading music from the internet could get even tougher following a landmark copyright case due to begin in the Federal Court next week.

The Australian Recording Industry Association (ARIA) hopes the $500 million lawsuit by Australian and international record companies against a man who ran a song-sharing website will help end music piracy.

Brisbane man Stephen Cooper, whose internet site provided links to download music from around the world, has been accused by ARIA of being one of the biggest copyright law infringers in the world.

His website, set up in 1998, was shut down late last year following raids on his Brisbane home and the offices of his internet service provider.

ARIA piracy investigations manager Michael Speck said the case would allow Australian courts to "once and forever" define the difference between legitimate online services and those which take other people's music for their own profit.

"It's an opportunity for the Australian courts to rule definitively on the impact of copyright law on the internet and thereby effectively deal with the mythology of the internet that allows people to make vast fortunes from other people's property," he said.

He said the myth centred on the belief some people had that if they downloaded songs from other internet users they were doing nothing wrong.

Speck said the court action against Cooper and his Sydney-based internet provider ComCem was part of ARIA's anti-piracy operations and if the decision favoured ARIA it would mean the end of the internet myth.

Cooper told Brisbane's The Courier-Mail newspaper he would never have started the website if he had known he was doing anything wrong and did not have the money to defend the case.

"There are no millions of dollars stashed away anywhere, no secret garages full of Porsches and Ferraris," he said.

The case against Cooper, of Bellbowrie in Brisbane, is due to get under way in Sydney next Monday.
http://www.smh.com.au/articles/2004/...?oneclick=true


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Shootin’ the breeze

Gone With the Wind Margaret Mitchell heirs threaten Project Gutenberg

Heirs of Margaret Mitchell have threatened the U.S.-based Project Gutenberg and Project Gutenberg of Australia--charging infringement of copyright.

The Stephens Mitchell Trusts wants Australian Gutenberg volunteers either to remove Gone With the Wind from their servers or else take steps to prevent downloads in countries where copyright law bans unauthorized distribution of the 1936 classic.

Otherwise, a lawyer for the heirs says in email and a certified letter, "we will take all appropriate steps to protect and enforce our clients' rights."

Special interest law vs. American culture

Welcome to the world of the Sonny Bono Copyright Term Extension Act, which corrupted U.S. copyright law at the request of the Hollywood elite, other entertainment moguls and rich heirs. Over time, the term extensions will cost society billions and harm valuable cultural activities.

Had the special-interest legislation not been passed, cash- strapped Gutenberg would not be facing this threat since the classic would be legal to download by now.

And yet U.S. politicians of both parties, fat with campaign donations from Hollywood, generally refuse to speak out against the Bono Act. The Kerry-Edwards campaign has been deaf to Bono-related pleas from me and others despite some possible progress on other copyright matters. Meanwhile U.S. media blithely report on entertainment-industry donations to candidates without a word of Hollywood-bought laws like Bono.

Estate: Gutenberg set up Australian PG for illegal downloads

In using the Bonoized copyright law to harass Gutenberg, New York lawyer Thomas Selz wrote:

"It appears to us that Project Gutenberg established PGA to permit the illegal downloading of works that are still subject to copyright protection in the U.S. and elsewhere. Project Gutenberg’s and PGA’s willful, knowing and unauthorized distribution of GWTW to users in the U.S. and elsewhere where copyright protection remains available is a blatant violation of our client’s rights under applicable statutes and common law."

Let's hope that the likes of Larry Lessig and the Electronic Frontier Foundation can slap down this harassment immediately. Could they even threaten a countersuit? If the estate successfully sued, Gutenberg-style organizations throughout the world might have to adhere to the strictest copyright laws in the cosmos or risk situations such as the one with Gone With the Wind. Hollywood can well end up buying off the legislators of certain Third World countries.

There are also implications if INDUCE-style proposals are revived, since lawyers might have more legal ammunition in their claims that the U.S. Gutenberg is inducing infringement by Americans able to download Gone With the Wind.

Two legal traps

Meanwhile the Gutenberg volunteers face a possible legal trap--in fact, two. If the Australian Gutenberg takes down the novel without a request from the American PG even though Australian law does not require this, Margaret Mitchell's estate may just say the two groups are in cahoots with each other. The estate might claim that the Australians were trying to protect the Americans. If the U.S. Gutenberg asks for a take-down, the estate might also claim a close relationship.

A related argument might be trademark. The estate lawyers may use this as further evidence of an actual tie.

The good news is that the Mitchell estate is already a laughingstock among many in U.S. legal circles for its silly suit against an author for a parody of Gone With the Wind (too bad that Houghton Mifflin felt compelled to settle, given the absurdity of the suit). That outrage is itself a textbook case of the need for a robust public domain, so that image-fixated heirs can do minimal damage to still-productive authors and publishers. Last I knew, Margaret Mitchell hadn't written any new works lately. Isn't copyright law supposed to encourage the arts and sciences, including, presumably, literature? And yet, with or without Bono, Miss Mitchell wrote Gone With the Wind.

Significantly, Margaret Mitchell died in on August 16, 1949. Without the Bono Act, the book's copyright would have expired in 1999. Now, however, in the States, the book apparently won't enter the public domain until 2019. With this situation in mind, it is high time that Congress either repealed Bono or at least mitigated it--lest greedy heirs and Doberman lawyers shut down worthwhile efforts like Gutenberg.

Meanwhile Australia, which appears on the cusp of increasing copyright terms past the 50-year mark, would do well to consider the repercussions before letting wealthy American heirs and donation-crazed U.S. politicians dictate law to them. The expected changes in Australian copyright law would not have come out without U.S. pressure by way of a trade agreement.

Yet other issues arise. Given the threat from black suits, I am reluctant even to provide a link to Project Gutenberg of Australia, much less to the the e-text of Gone With the Wind.

If you cherish culture and freedom to link, speak up now to your favorite presidential candidates and your local Congress members. Guess what other work is free in Australia but not in the Bonoized United States. Nineteen Eighty Four. In curbing our freedom of speech with onerous copyright laws, our politicians have done Big Brother proud.

/////////////////////////////

Below, in its entirety, is material that went out over the gutvol-d mailing list.

From: dlainson@sympatico.ca
Sent: Tuesday, October 26, 2004 4:03 PM
Subject: [gutvol-d] [Fwd] Copyright Infringement of Gone With the Wind



Hello

Here's a letter (which I'm apparently breaking some US law by forwarding, but I'll take the risk) which I find disturbing. Seems that "Project Gutenberg established PGA to permit the illegal downloading of works". Of this I wasn't aware. As a big contributor to PGA it concerns me personally, as well as setting a very dangerous precedent.

Does one country have the right to dictate to another what a website can contain when it falls within the law of the host country, and can they force some sort of restrictions on the downloading of material?

Don.

------- Forwarded message follows -------
From: "Col Choat"
To: "Don Lainson"
Subject: FW: Copyright Infringement of Gone With the Wind
Date sent: Tue, 26 Oct 2004 09:36:48 +1000





From: Gonzalez, Dalgis [mailto:dgonzalez@fkkslaw.com]On Behalf Of
Selz, Thomas
Sent: Tuesday, 26 October 2004 6:29 AM
To: colc@gutenberg.net.au
Cc: Paul Anderson Sr. (E-mail); Paul Anderson Jr. (E-mail); Thomas
Hal Clarke (E-mail); Thomas Hal Clarke (E-mail 2); Selz, Thomas
Subject: Copyright Infringement of Gone With the Wind

October 25, 2004


Certified Mail-
Return receipt Requested

Project Gutenberg
405 West Elm Street
Urbana, IL 61801

By e-mail (colc@gutenberg.net.au)

Project Gutenberg of Australia


Re: Copyright
Infringement of Gone With the Wind

To Whom It May Concern:

We represent the Stephens Mitchell Trusts (the “Trusts”), the owner of the copyright to the book, Gone With The Wind (“GWTW”). There are copyright provisions around the world, including, without limitation, the United States Copyright Act, 17 U.S.C. §101 et. seq, which grant the Trusts, as copyright owner, the exclusive right to reproduce and distribute GWTW in the United States and elsewhere.

It has come to our attention that Project Gutenberg’s affiliate, Project Gutenberg of Australia (“PGA”), is publishing GWTW in electronic book form on its web site located at www.gutenberg.net.au (the “Web Site”). The Web Site states that PGA “produces etexts in accordance with Australian law” and that the books available on its site are in the public domain in Australia. While the Web Site warns that some of its ebooks may still be protected by copyright in the U.S. and suggests that U.S. users check U.S. copyright laws or visit Project Gutenberg’s U.S. web site for its list of public domain works, there is nothing to prevent any U.S. user from simply downloading GWTW from the Web Site. Indeed, we were able to do so easily.

It appears to us that Project Gutenberg established PGA to permit the illegal downloading of works that are still subject to copyright protection in the U.S. and elsewhere. Project Gutenberg’s and PGA’s willful, knowing and unauthorized distribution of GWTW to users in the U.S. and elsewhere where copyright protection remains available is a blatant violation of our client’s rights under applicable statutes and common law. Please be advised that Project Gutenberg and PGA are subject to U.S. copyright law and to jurisdiction in the U.S. for their infringing activities through applicable jurisdiction statutes governing the commission of acts of infringement that either occur in the U.S. or have an effect in the U.S.

On behalf of the Trusts, we hereby demand that Project Gutenberg and/or PGA confirm to us within five (5) days of receipt of this letter that you have removed GWTW from the Web Site entirely or that you have taken all necessary steps to prevent the downloading of GWTW in all places in which it is protected by copyright.

Please be advised that if we have not received confirmation of your willingness to comply with the foregoing demands, we will take all appropriate steps to protect and enforce our clients’ rights.

This demand is without prejudice to all of the Trusts’ rights and remedies in this matter, both legal and equitable, all of which are specifically and expressly reserved.

Very truly yours,


Thomas D. Selz

cc:Paul H. Anderson, Sr., Esq.
Paul Anderson, Jr., Esq.
Thomas Hal Clarke, Jr., Esq.
Dalgis E. Gonzalez
FrankfurtKurnit Klein & Selz, PC
488 Madison Avenue
New York, New York 10022
Tel: (212) 980-0120 x6735
Fax: (212) 593-9175
E-mail: dgonzalez@fkkslaw.com

This e-mail and any attached files are intended solely for the use of the individual or entity to which this mail is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. Any use, disclosure, copying or distribution of this e-mail or the attached files by anyone other than the intended recipient is strictly prohibited. If you have received this e-mail in error, please notify the sender by reply e- mail or collect call to (212) 980-0120 and delete this e-mail and attached files from your system. Thank you.

------- End of forwarded message -------

Don Lainson
dlainson@sympatico.ca

//////////////////////

Update, 6:34 a.m., October 27: We've just been Slashdotted--the Mitchell outrage made the top of the home page. Meanwhile check out an old Dan Gillmor article about the estate's war against the Gone with the Wind parody. Among the tidbits there:

In 1790, copyright terms lasted 14 years, with a 14-year
renewal period. But in this century of big and powerful media companies, Congress has turned the idea of "limited'' into something perversely long, with repeated extensions...

When Mitchell wrote the book, the maximum term was 56 years, said Lawrence Lessig, professor of law at Stanford University. In other words, the copyright should have expired in 1992, and Scarlett O'Hara and her cohorts should have entered the public domain, where any author could do anything he or she pleased with the work.

So speak up to politicians! Remember, Jack Valenti, until recently
boss of the MPAA and more than a little friendly with top pols, favors eternal copyright short of a day. But isn't it better instead to worry about compensation for living writers rather than their obnoxious heirs? I can understand concern over wives, children, and so on, but pre-Bono terms were sufficient.

Needless to say, a TeleRead-style national digital library system could send money in the direction of publishers, writers and other content-providers and indirectly help wives and children in and here and now. Given that most copyrighted books go out of print after a few years, this approach would be far fairer to the creative community than a legalistic one.

The Bono mess is symptomatic of a sick publishing industry under treatment by well credentialed quacks who, to quote one definition of quackery, "sell false hopes to the gullible." I'm convinced that certain attorneys and software companies (no names given here) are actually bigger threats to publishers and writers than pirates are. If conned publishers were not so keen on Draconian DRM and accompanying laws--which scare the devil out of consumers eager to own e-books for real--the e-book industry by now would far larger today. Global sales are perhaps $40 million annually, less than what Tom Clancy alone makes in a good year. See why "quack" is just right, if you're talking about competence at helping e-books take off and getting Americans interested again in serious reading? Improved access to books and education in general is the real way to grow publishing. But too many attorneys and software companies lack the vision to care. Profit-minded publishers should worry less about the "protection" and more about revenue--often two wildly contradictory things. In this context, obscenely stretched copyright terms are counter productive. I'm pro-copyright, pro-profit, but let's have balance. The young people reading Gone with the Wind just might go on to buy more modern e-books. By the way, at least at Amazon.com, I don't see a listing for an e-book version of GWTW, not even in DRMed form.

Update, 5:01 p.m., October 27 Turns out that even without Bono, Gone With The Wind still wouldn't be in the public domain today. But it is part of a nasty pattern of extensions and does delay for 20 years when GWTW will be available, thus increasing for Gutenberg possibility of legal harassment.
http://www.teleread.org/blog/2004_10...82938565501362


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GWhiz

Utility Turns E-Mail Storage Into a Cubbyhole for Files
Sandeep Junnarkar

It did not take users long to discover other uses for the gigabyte of disk space provided by Google's free e-mail service, Gmail.

A free new software utility for Windows XP called GMail Drive creates a virtual Web-based storage drive by harnessing a Gmail account. Much like an external hard drive or a U.S.B. memory device, Gmail storage appears as a drive under the "My Computer" folder and allows you to transfer, store or retrieve files by simply dragging and dropping them.

Many Web storage companies charge $16 a month and higher for one gigabyte of space but include added features.

Bjarke Viksoe, a Danish software developer, created GMail Drive for Windows XP (www.viksoe.dk/code/gmail.htm). Earlier, Richard Jones, an Australian software engineer, developed a similar tool for Linux-based systems called GmailFS (at richard.jones.name). While there is no Mac version yet, one is likely to surface soon.

Both utilities are early versions and may have a few glitches. Gmail itself is still in the testing phase. Google said that it was aware of the utilities but was "politely looking the other way" as long as they were not being sold commercially or stressing its servers. The company does not guarantee that files stored in this manner will be accessible in the future.
http://www.nytimes.com/2004/10/28/te...ts/28goog.html


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For Radio Programs When You Want Them, Plug In a Fin
Thomas J. Fitzgerald

For those who would like more control over when and how they listen to radio shows, whether Don Imus in the afternoon or a baseball game at midnight, there is a new option from Griffin Technology: the RadioShark.

The $70 device, which is available at griffintechnology.com and from Apple (store.apple.com), is about 7¼ inches tall and shaped like a shark fin. It connects to a U.S.B. port on a PC or Mac, providing AM and FM radio. Griffin software included with the RadioShark lets users preset stations, adjust bass and treble with an equalizer and listen to music and programming using time-shifting and recording.

In time-shifting, live broadcasts are recorded continuously to a buffer; you can pause the program and then resume it where it broke off. You can also scroll back to replay a segment while RadioShark continues to record the ongoing broadcast; you can then fast-forward through missed segments until you catch up to the live program.

Radio broadcasts can also be recorded and saved to the computer's hard disk, either while listening or on a schedule. On Macintosh computers they can be automatically saved to a playlist within

Apple's iTunes program and thus synchronized to an iPod for mobile listening.
http://www.nytimes.com/2004/10/28/te...ts/28shar.html


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A Typo That Won't Make The New Yorker

The ever-tasteful New Yorker Magazine has spotted many amusing typos in mere newspapers. But here is one that you presumably won't see there:

BEIJING, Oct. 24 (Xinhuanet) -- New York Attorney General Eliot Spitzer's office now shits their attention to the music industry, particularly its practices for influencing what songs are heard on the public airwaves.

This gem--corrected by now?--made the home page of Google News.
http://www.teleread.org/blog/2004_10...82938565501362


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Homeland Security Agents Visit Toy Store
AP

So far as she knows, Pufferbelly Toys owner Stephanie Cox hasn't been passing any state secrets to sinister foreign governments, or violating obscure clauses in the Patriot Act.

So she was taken aback by a mysterious phone call from the U.S. Department of Homeland Security to her small store in this quiet Columbia River town just north of Portland.

"I was shaking in my shoes," Cox said of the September phone call. "My first thought was the government can shut your business down on a whim, in my opinion. If I'm closed even for a day that would cause undue stress."

When the two agents arrived at the store, the lead agent asked Cox whether she carried a toy called the Magic Cube, which he said was an illegal copy of the Rubik's Cube, one of the most popular toys of all time.

He told her to remove the Magic Cube from her shelves, and he watched to make sure she complied.

After the agents left, Cox called the manufacturer of the Magic Cube, the Toysmith Group, which is based in Auburn, Wash. A representative told her that Rubik's Cube patent had expired, and the Magic Cube did not infringe on the rival toy's trademark.

Virginia Kice, a spokeswoman for Immigration and Customs Enforcement, said agents went to Pufferbelly based on a trademark infringement complaint filed in the agency's intellectual property rights center in Washington, D.C.

"One of the things that our agency's responsible for doing is protecting the integrity of the economy and our nation's financial systems and obviously trademark infringement does have significant economic implications," she said.

Six weeks after her brush with Homeland Security, Cox told The Oregonian she is still bewildered by the experience.

"Aren't there any terrorists out there?" she said.
http://prisonplanet.com/articles/oct...04toystore.htm


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Would President Kerry Defang The DMCA?
Declan McCullagh

John Kerry finally has hinted at a position that would mark one of the first real differences from his Republican rival.

In a barely noticed remark on Thursday, the Democratic senator said he might support defanging the Digital Millennium Copyright Act (DMCA)--the unpopular law that has prompted take-to-the-street protests from the geek community.

If Kerry is serious, that would be a remarkable metamorphosis on a law that the Senate approved without one dissenting vote. It would also be remarkable because, contrary to what Kerry and President Bush tell you, few differences exist between the two White House hopefuls on nearly any topic imaginable.

Both supported the invasion of Iraq, both applauded the Patriot Act, and both agreed with sweeping expansions of federal spending on education. Neither politician has the moxie to say in public that he agrees with gay marriage, neither will end the war on drugs, and neither would countenance full privatization of Social Security.

Poor Jim Lehrer of PBS, who moderated the first presidential debate, was left scratching his head about what actually differentiated the two men who would be president. Was it Kerry's pledge to undertake two-party talks with North Korea versus Bush's preference for six-party talks?

On technology topics as well, as I wrote in a column in June, there tend to be distinctions without differences. The Democratic and Republican candidates have been singing in two-party harmony about technological innovation, broadband, Wi-Fi, spectrum auctions, and their mutual love for the research and development tax credit.

Still, a few divergences became clear last week with the release of a set of answers that the Bush and Kerry campaigns provided to a dozen questions posed by the nonpartisan Computing Technology Industry Association.

Inalienable right to make backups

Kerry's campaign said the senator might support rewriting U.S. copyright law to let Americans make backup copies of digital media they've purchased.

Pay attention, folks: In the tech world, this maybe-or-maybe-not pusillanimity counts as headline-grabbing news. Right now, under the DMCA, it's unlawful to make a backup copy of copy-protected DVDs or computer programs. The 1998 DMCA broadly bans "circumventing" anticopying schemes, and selling software that can do so is a criminal offense.

Kerry's survey response said he is "open to examining" whether to change current law "to ensure that a person who lawfully obtains or receives a transmission of a digital work may back up a copy of it for archival purposes" or transfer it to another device. CompTIA's open-ended question had merely asked "What should federal policy be toward protecting intellectual property on the Internet?"--without mentioning backup copies.

This is no theoretical debate. 321 Studios was forced to shut its doors in August, after a federal judge blocked the small company from selling its DVD backup software. 321 Studios' utility, the judge said, ran afoul of the DMCA's anticircumvention restrictions.

Kerry's answer appears to be a tentative attempt to side with consumers and electronics makers over the entertainment industry--a rare display of political independence by a prominent Democrat. (Hollywood firms hand money to Democrats over Republicans by a 2-to-1 margin.)

How serious are these guys?

It's not clear, though, how serious Kerry truly is. Reps. Rick Boucher and John Doolittle introduced their bill to defang the DMCA more than two years ago and have been searching in vain for a Senate sponsor. Kerry, a member of the committee overseeing e-commerce, could have lent a hand but never did. If the senator had time last year to announce two bills dealing with tariffs on imported "pouch tuna" from Indonesia, he surely had time to help Boucher and Doolittle.

The Bush administration's stand, on the other hand, is entirely clear: defend the DMCA at any cost. Bush's reply to CompTIA said: "I strongly support efforts to protect intellectual property and will continue to work with Congress to ensure all intellectual property is properly protected."

Buttressing this stand is a report released this month by Bush's Department of Justice. It insists that the DMCA remain intact, saying U.S. law must prohibit "deliberate and unauthorized circumvention." Meanwhile, Bush's trade negotiators have been busy exporting the DMCA to Australia, Chile and Singapore, and Attorney General John Ashcroft invoked the DMCA when trying to imprison Russian programmer Dmitri Sklyarov.

Two other modest differences arose in the candidates' responses to CompTIA's questions about voice over Internet Protocol (VoIP) and spam. In both cases, Bush was far more explicit about what he would do if Americans pick him on Election Day.

On VoIP, Bush praised the technology and suggested that regulators treat it like e-mail--that is, take a laissez-faire approach--instead of weighing it down with the raft of rules that apply to the telephone network. On unsolicited bulk e-mail, Bush predictably touted the Can-Spam Act, which he signed into law last December.

Oddly, Kerry ducked both questions. In both cases, he said only that he's "open" to considering any approach.

That might work for a small-town lawyer running for election as a state legislator. But it's unseemly when coming from a guy who's been in the Senate for two decades and is a senior member on the only two subcommittees that oversee, well, VoIP and spam. It's also important because the Federal Communications Commission voted 3-2 along party lines in February to exempt "pure" VoIP companies from traditional telecommunications regulations. The two Democratic commissioners opposed that move. What side would a President Kerry take?

Unfortunately, both major-party candidates are savvy enough to realize that Americans don't pick presidents based on their telecommunications policies. The problem is that there are so few substantial distinctions in other areas. Just ask Jim Lehrer.
http://news.com.com/Would+President+...tag=html.alert


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