Peer-To-Peer News - The Week In Review – August 30th, '03

[JackSpratts]

Say What? - “There is no requirement that the actus reaus of the copy making reside with the putative infringer.”



September Means Back to Court

Falling leaves, plaid skirts and armies of soulless men and women in gray suits can only mean one thing - it’s back to court for the media moguls. This time around they’ve got plenty of help to go with the dropping temperatures. Not only have they purchased spiffy new subpoenas and spats and back to court pencils, but they’ve bought themselves some real live experts too. Legal professors who should know better have taken the RIAA’s line and run with it – right smack onto the playing fields of justice. These “friends of the court” are doing everything they can to stop what they hysterically call “viral online infringement”, filing overheated briefs attempting to preserve the copyright cabals, the record monopolies and maybe even life on this planet as they know it. Will it work? Stay tuned. Meanwhile the RIAA is getting itself dragged into court by angry webcasters accusing them of cartel-like behavior and committing conspiracies to kill internet broadcasting. Ya think? All this lawyering could make for a boring Fall. Or a really interesting one.








Enjoy,

Jack.









Titans Collide Over Pipsqueak

KaZaA Attacks Google with Writ – Forces Search Engine To Censor Links To Kazaalite
Paul Rotello

Sharman Networks, owner of the number one file sharing service Kazaa Media Desktop has apparently invoked a provision of the controversial Digital Millennium Copyright Act (DMCA) to force Google, the world’s number one search engine, to remove all links pointing to Kazaalite.

Klite as it’s known among file sharing aficionados is a “stripped” version of KaZaA, with all of the third party software removed, such as so-called spyware. Kazaalite operates using the proprietary Fasttrack network created by Estonian programmers and licensed to several different companies. Klite is not a licensee. Copyright experts expressed dismay that the DMCA could be so easily used to censor indirect items such as links.

On Sunday August 31st a Google search for “K Lite” returned the following line at the bottom of the screen, “In response to a complaint we received under the Digital Millennium Copyright Act, we have removed 3 result(s) from this page.”

However temporarily at least a search for “Kazaa Lite” produced normal, uncensored results. http://www.chillingeffects.org/dmca5...i?NoticeID=789


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Record Companies In The Soup

The Full Federal Court has today upheld that Warner Music and Universal Music had breached section 47 of the Trade Practices Act 1974 dealing with exclusive dealing when responding to the parallel importation of music by small business.

The court did not affirm a breach of section 46, based on the earlier High Court Boral judgment.

The court increased the total penalties payable by Warner, Universal and company senior executives to a total of more than $2 million.

"This decision is important as it sends a strong message to those who would attempt to influence retailers against stocking the often cheaper parallel-imported CDs in competition with Australian-made CDs", ACCC Chairman, Mr Graeme Samuel, said.

"Consumers can benefit also from the lower prices and greater choice.

"Justices Wilcox, French and Gyles further clarified the law regarding misuse of market power by following the High Court judgment in the recent Boral case", Mr Samuel said. "Both Warner and Universal were unsuccessful in appealing the original decision of Justice Hill that they had contravened the exclusive dealing provision of the Act".

In their judgment, the Full Court stated: "Although short-lived the purpose of that conduct was to snuff out the emergence of a form of competition opened up in the interests of consumers by the amendments to the Copyright Act. On any view these factors would indicate the need for a substantial penalty to be assessed bearing in mind the maximum of $10 million".

They also said: "As we have said, the contravening conduct was plainly and deliberately anti-competitive in its intent".

At trial, Justice Hill held that Warner and Universal had breached the Act by threatening to refuse to supply Australian retailers who stocked parallel-imported CDs, and later refusing to supply retailers who stocked such imports. Those findings made by Justice Hill preventing Warner and Universal from refusing, or threatening to refuse supply to retailers for the reason that they source or propose to source non-infringing copies of music within their catalogue from an alternate source, were upheld by the Full Federal Court.

The ACCC, while successful in establishing a breach of the Trade Practices Act at trial, appealed the pecuniary penalty awarded by Justice Hill (totalling more than $1 million) as being inadequate given the circumstances of the case.

The Full Court held that penalties need to be set to adequately reflect the need for deterrence and ordered the following penalties:

- Warner and Universal – $1,000,000 each

- Paul Dickson (formerly PolyGram Group Managing Director of Music Operations) – decreased from $50,000 to $45,000

- Craig Handley (formerly PolyGram General Manager of Sales) - $45,000

- Gary Smerdon (Director of Warner, formerly Finance and Business Affairs Director) - $45,000; and

- Greg Maksimovic (Warner NSW State Manager) - $45,000.

Mr Samuel welcomed the decision of the court to substantially increase the penalties imposed on Warner and Universal.

"Penalties of $1 million each for Warner and Universal and $45,000 each for the senior executives of those companies show that the court, when faced with serious breaches of trade practices law, will impose penalties to match".

Injunctions have been made preventing Warner and Universal from engaging in exclusive dealing with the purpose of substantially lessening competition in the Australian market for recorded music.

The court ordered that the companies pay the half of the ACCC's appeal costs and 50 per cent of the ACCC's trial costs.
http://mi2n.com/press.php3?press_nb=55974


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Webcasters Slap RIAA With Antitrust Suit
Andrew Orlowski

The Webcaster Alliance has filed a suit against the Recording Industry Association of America and five major record labels for anti- competive behavior. The case arises from a deal last year, details of which were first reported by The Register, between a handful of small webcasters and the RIAA to set performance royalty rates.

The WA alleges that the plan was part of a strategy to wipe out an entire industry at birth - the independent webcasters - and the suit has explosive political implications for senior Congressman Sensenbrenner who forced the deal. Sensenbrenner later admitted taking $18,000 from the RIAA for a trip to the Far East.

"A private negotiation between the RIAA and the VOW" - the breakaway group responsible for cutting the deal - "became, by virtue of the SWSA [Small Webcaster Settlement Act of 2002], an industry deal for all small webcasters."

The suit alleges that the VOW agreement "actually put many small webcasters in a worse position" than they had been under the rates set by the Library of Congress' Copyright Office earlier that year, by for example mandating a fourfold increase in in the minimum royalty fee.

The Webcaster Alliance alleges that this and an earlier agreement with Yahoo! "had the intent and effect of restraining competition in the market for domestically recorded sound recordings and in the market for the Internet distribution for such sound recordings."

"Faced with exclusionary licensing rates," continues the suit, "... Plaintiff's members are faced with certain and imminent extinction."

Which may be exactly what the RIAA wants, the suit suggests. The Major Labels named, which own 90 per cent of content, "had a near- exclusive hold on distribution and marketing channels to consumers, such as radio station play, shelf space in major retail outlets, tour books, promotions and music videos" until the advent of the Internet.

The suit notes that the Library of Congress has already established a finding of fact that in the Yahoo! Agreement RIAA members artificially inflated royalty fees, the Librarian noting that "the RIAA created a virtually uniform precedent with rates above those that most buyers would be willing to pay."

A Yahoo! executive subsequently testified before the House that the agreement set "excessive" rates that were "considerably higher" than what the stations could afford.

By sealing a deal, the RIAA sought to wipe out the primary digital distribution mechanism for Independent labels, says the WA.

Sensenbrenner played a crucial role in the VoW settlement: forcing the negotiating webcasters to cut a deal with the RIAA or leave his congressional staff to write a deal for them.
http://www.theregister.com/content/6/32524.html


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Hollywood Gets Support in P2P Appeal
Ryan Naraine

The recording and motion picture industries have lined up a throng of allies to beef up a crucial appeal to overturn an earlier court ruling that two popular file-sharing could not be held liable for copyright infringement by users.

In support of the appeal filed on August 19, four separate amicus (friend- of-the-court) briefs have been introduced in the U.S. Court of Appeals for the Ninth Circuit, arguing that the earlier decision rendered by District Court Judge Stephen Wilson was wrong and created "a gaping technological loophole" that hurts copyright holders.

The four briefs were filed by a group of copyright experts and law professors, members of the copyright community, international rights owner organizations and legal digital music download services.

In a 39-page brief prepared by nine law professors and treatise authors on intellectual property and copyright law, the group argued that Judge Wilson misjudged the elements of contributory and vicarious liability in his April decision.

That ruling, the experts contend, "has created a gaping technological loophole that jeopardizes the ability of long-standing copyright principles to redress viral online infringement."

"[We] believe that those interests have been threatened by the lower court's opinion granting summary judgment to the defendants, which departed from established principles of contributory and vicarious copyright infringement, misapprehended the policy rationales on which those two doctrines rest, and abandoned to Congress all responsibility for redressing the massive infringement abetted by defendants," the brief argued.

The brief, filed by professors and lawyers from NYU School of Law, Harvard Law School, Bingham McCutcheon LLP, among others, said the District Court ruling included "dispositive errors" in applying the law of liability and "failed to recognize the policy interests those doctrines effectuate."

The group argued that the court's ruling on Napster gave clear notice that the law "would not tolerate those seeking to profit from such enterprises." However, despite the obvious similarities between Napster and the Morpheus and Grokster networks, the district court here reached a result contrary to Napster, according to the filing.

The experts contend that it's near impossible for the recording and motion picture industries to efficiently control the millions of infringements that occur daily on the peer-to-peer networks, arguing that the file-sharing firms can control infringements "if properly motivated."

"From a policy perspective, it would be better to permit copyright owners to protect their rights through actions like this one, instead of in a multitude of individual suits against direct infringers, to obtain the most effective relief against those whose "infringement factories" are at stake," the group added.

In the brief, the group of legal experts claimed the District Court's refusal to consider comparable constructive knowledge evidence "ignores not only the law, but also the important policy rationale for imposing liability based on constructive knowledge: to hold otherwise would encourage willful blindness on the part of one who materially contributes to direct infringement."

A separate amicus brief filed by members of the copyright community echoed those sentiments. "The lower court in this case deviated dramatically from case law governing contributory and vicarious infringement. It articulated new, narrow standards that are unsupportable under controlling precedent and constitute terrible public policy."

The copyright holders insist that the District Court's "misapplication of law" would create loopholes and frustrate efforts to limit online piracy.

The major legal music download services -- BuyMusic, Echo, Full Audio, Liquid Audio, MusicNet, MusicRebellion, Pressplay -- also filed a support brief outlining the difficulties they face with building a business to compete with free music widely available on the P2P networks."The District Court failed to understand that copyright law regulates conduct, not technology," the music services argued, pointing out that in addition to the "impossibility of competing with a free service," their businesses were harmed by difficulties competing against companies that "do not respect the requirements under which the music industry licenses and releases its music."

"Because the illegal networks do not have to respect the term of a license, consumers do not understand that under the existing licensing models legal on-line music services currently may not offer all digital music on an unrestricted basis," the brief read.

The briefs were all filed to help the appeal to overturn Judge Wilson's ruling that Grokster and Morpheus could not control how people use their software, which could also have legitimate applications. Judge Wilson cited the famous Sony Betamax case of 1984, where the Hollywood studies tried to outlaw VCRs but ran into a Supreme Court ruling that use of new technology to infringe copyrights did not justify an outright ban on that technology.

"Grokster and Streamcast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights," Judge Wilson wrote.

That ruling did not cover the defendant's liability for damages from past versions of the software or from other past activities. It also does not cover Sharman Networks' Kazaa Media Desktop, which is also being sued by the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA).
http://www.atnewyork.com/news/article.php/3069301


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Businesses Boosting Anti-P2P Software
John Borland

Reid Burch, network services manager for the Promina Southern Regional Health System hospital near Atlanta, was having a problem with slow networks early this year.

Applications were poky, pipes were full, and the hospital was inching toward buying new, expensive connections to keep up with the demand for bandwidth. But before paying the phone company, Burch agreed to try out network-monitoring software created by a company called Packeteer.

What he found was a surprise: In the first 18 hours that Burch used the software, file-swapping services like Kazaa made more than 1,100 attempts to use the company's network. Even more surprising were the effects on the applications that the company had already noted were a little slow. Burch found that when P2P networks weren't active, a routine but critical database information swap that had been taking nine hours to perform suddenly was done in an hour and a half. It was a wake-up call, he said.

"We saw that there was a huge problem that we knew existed, but we hadn't known how to remedy it," Burch said. "We'd been fighting a losing battle."

As has been the case with other companies trying out new network- and bandwidth-monitoring tools, Burch's system woes weren't entirely tied to the presence of file-swapping software on company computers. But the discovery of activity that's taking up large amounts of bandwidth and exposing the company to potential legal liability is exactly the type of revelation that's persuading a growing number of companies to do something about file swapping.

This demand on the part of businesses for control over their networks is proving fertile ground for a new generation of bandwidth- and network-management companies, which are pitching their services as the answer to P2P, viruses and other "garbage software" ills. Among these companies are Packeteer, Allot Communications, AssetMetrix and a growing list of others.

These companies' initial forays into the realm of file swapping were helped along by universities, which bore the brunt of the first wave of Napster and Kazaa popularity that began in late 1999. Many of those institutions, while loathe to block peer-to-peer traffic altogether, helped companies like Packeteer figure out how to track and manage file- swapping activity.

Corporations are now increasingly waking up to the issue, as a result of a recent wave of publicity over the recording industry's impending lawsuits against individual file swappers, a series of warning letters sent by the Recording Industry Association of America to big companies, and cease-and-desist letters sent to companies where copyrighted files have been found.

"A year ago, mostly universities and service providers were worrying about their bandwidth," said P.G. Narayanan, CEO of Allot. "Now it's a different angle that we're hearing in corporate America. It's concerns about copyright law."

The problem, according to network management experts, is that corporations often don't have their PCs as tightly controlled as they would like to believe.

Many companies have strict rules about what kinds of software can be installed on company computers. Some versions of Windows operating systems have options to let only network administrators install software. Some configurations even require employees to use network-based software instead of programs located on their hard drive.

But network surprises persist. A recent study conducted by Canada's AssetMetrix of 560 companies that range from 10 to 45,000 employees found file-swapping software installed on at least one computer in 77 percent of cases.

Craig Wysik, information technology manager at the 80-person Western Washington Oncology center in Olympia, Wash., found that to be the case when he first tried Packeteer. The company wasn't having serious network-slowdown issues, but he did find some file-swapping software installed.

"It wasn't yet a problem in terms of performance," Wysik said. "But the fact was, something was there that we didn't know about, and you don't want that happening on a business network at all. People should have other things to do than download music."

Network stresses
The situation creates several potential problems for companies that are caught unaware. Modern file-swapping applications such as Kazaa automatically select high-bandwidth points inside their network to handle much of the traffic management and routing functions. Corporate computers with fast connections can easily take on this role, creating a big bandwidth burden for the company's network, even if employees who have downloaded the software aren't using it themselves.

Companies also worry about security implications for file swapping. Many people who use P2P software aren't technically sophisticated and might accidentally expose vulnerable parts of their computer or network. For Burch's hospital and other health care organizations, which are universally trying to secure their network privacy in line with the Health Insurance Portability and Accountability Act, that's a serious concern.

Potential liability is also an issue. At least one company has already settled with the Recording Industry Association of America over copyright infringement issues, paying the organization $1 million in damages for operating an internal MP3 network. Administrators looking to shield themselves are turning to network-management tools as one way of showing that they're trying.

The companies behind those tools have several different means of approaching the problem. Monitoring and audit companies like AssetMetrix scan corporate networks for every piece of software located on PCs to find file-swapping software, spyware, instant messaging programs and everything else that's living on corporate hard drives. Those reports help administrators or other consultants track down unauthorized code.

Packeteer, Allot and others go one step further. They scan to see which software applications are using a network, and they control the amount of bandwidth that's allocated to each application. That means that, as some universities do, companies can shut down altogether or allot just a trickle of bandwidth to software like Kazaa.

Analysts say bandwidth management is likely to survive over the long term. Particularly as bandwidth prices rise again as expected over the next few years, tightly controlling the network space that's used by each program can save money quickly, analysts say.

"By spending this money, companies can avoid having to buy another T1 (network connection) and can very easily show return on the investment," Meta Group analyst Jerald Murphy said.

Packeteer CEO Dave Cote said most of his customers aren't initially coming to him to control file swapping, and he worries about his company being pigeonholed as an anti-file- swapping service. Indeed, it is only after running the monitoring tool that most customers realize they have a problem, he said.

"It's in people's minds; they are aware of it. So when they see it, they want to block it," Cote said. "For corporate customers, it is on the list of negative programs but often not as high as things like streaming video."

Allot's Narayanan predicts that these are the early days of an education campaign for companies and that, ultimately, these issues of potential legal liability and destructive effects on corporate network resources will be taken more seriously.

"It's just like sexual harassment 20 years ago, when only a few big companies might have had an explicit policy against it," Narayanan said. "Today, every company small and large has a very specific policy. I think it is going to be the same way with music downloading. Corporate America will have to have a policy for fear of liability."
http://news.com.com/2100-1035-5068950.html


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Premium 'Kazaa Plus' Launched

Ad-Free version delivers more effective search and download, customer service and enhanced virus protection
Press Release

Online Distribution (AOD) SA, a subsidiary of global software publishing house Titus Interactive Group, today announced the launch of Kazaa Plus, a premium, paid for version of Kazaa Media Desktop, the world's most popular peer-to-peer file sharing application.

Kazaa Plus, developed by Sharman Networks and published by Avalon Online Distribution, is available globally for US$29.95. It is advertising-free, with no banners or pop-ups. Kazaa Plus, like all versions of Kazaa Media Desktop, respects users' privacy and helps protect their security.

In addition, Kazaa Plus introduces exclusive new features including:

· Smarter searching through Search Agent. This enables users to start searches that run every 30 minutes for a 24-hour period, offering potentially up to 9,000 results;

· Customer email Support by Avalon Online Distribution; -- Faster and more effective search and download capabilities, allowing users access to up to 3,000 results per search;

· Download files from up to 40 sources at one time, up from only eight in the advertising supported version;

· Set the default homepage of your choice; and -- Enhanced inbuilt virus protection from BullGuard.

Kazaa Plus includes all of the latest Kazaa Media Desktop features such as Altnet Peer Points Manager, a rewards program for sharing digitally rights managed files, and access to Channels, specialized licensed content areas within the application.

Kazaa Plus is published and supported online by European-based entertainment software publisher, Avalon Online Distribution. The certified version is only available from AOD's www.kazaaplus.com or CNET's www.download.com.

Herve Caen, Chairman of Titus Interactive Group, said: "We are very proud to be launching Kazaa Plus through our online distribution initiative, Avalon Online Distribution. This is the ad free P2P application users worldwide have been requesting."

"Sharman is delighted to have secured a world-wide publishing agreement with such an experienced software publisher. The Kazaa Plus application is about delivering the best experience to the discerning peer-to-peer application user who is willing to pay for a premium quality, ad free application and Avalon Online is well placed to realize its full potential" said Nikki Hemming, CEO of Sharman Networks. "As Avalon Online's clever campaign promotes -- it's the Kazaa you love Plus much more."

The free version of Kazaa Media Desktop, supported by advertising, will remain available online from Sharman's www.kazaa.com and CNET's www.download.com.
http://biz.yahoo.com/prnews/030828/nyth056_1.html


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Today's Tech-Dependent Activists
Amit Asaravala

In addition to picket signs and megaphones, activists protesting globalization policies at next month's meeting of the World Trade Organization in Cancún will be armed with a number of new, high-tech weapons for getting their message across.

These include using peer-to-peer networks to distribute video to television stations and setting up wireless access points so that activists can post updates to their weblogs. The aim is to help demonstrators make a bigger impact, even with fewer people, say protest organizers.


"Technology gives us the ability to shift the power in the protest to the dissidents," said Rabble, an activist with the Independent Media Center who requested that his real name not be used. "It's an incredible tactical advance from the days when the police were the only ones with a reliable communications network during protests."

During the WTO meeting, which will take place from Sept. 10 to 14, Rabble and others plan to use a peer-to-peer video-sharing service called v2v to transmit broadcast-quality video of the protests to television stations and other activists.

They also will set up wireless networks at the protest welcome center in the nearby town of Ciudad Cancún, and will stream audio recordings of interviews and speeches over the Internet for rebroadcast on participating radio stations.

The technologies are part of a growing collection of modern protest tactics, many of which originated during the highly publicized anti-WTO demonstrations that took place in Seattle in November 1999.

"There are always technological developments in activist practices," said activist Mike Bonanno. "Since 1999, the importance of e-mail lists and Web publishing to help organize people on the ground and disseminate information has not diminished."

Bonanno is a member of the Yes Men, a group that builds parody websites as a way to protest the policies of various organizations.

During the Seattle protests in 1999, the Yes Men launched GATT.org to protest the WTO. He says the group will continue updating the site during the Cancún meeting as a way to point out what they believe are flaws in the WTO's policies.

"We plan to use the GATT.org website to continue representing the positions of the WTO more honestly than they care to represent themselves," said Bonanno. "This has always been a goal of ours: to explain how WTO policies hurt the poor and the environment, but doing it with a healthy dose of satire."

Representatives of the WTO did not respond to requests for comment.

Surprisingly, one high-tech protest tactic that is likely to be absent from this year's demonstration is the use of distributed denial-of-service attacks to shut down the WTO website.

The electrohippies, a British group that called for such attacks during the 1999 meeting, have since disbanded. And many protest organizers today say they would not support such an attack if another group made a similar call.

"Taking down the website might be fun and headline-grabbing, but I personally don't think it's a good tactic," said Rabble. "The WTO does not function because its website stays up; it functions because corporations and governments give it tremendous power."

Another tactic that is not likely to make an appearance is the use of mailing lists to create "flash mobs," a way of mobilizing large groups of people by sending out a single message to awaiting recipients.

"The 'flash mob' concept generally works best when enough people are around to receive e-mail and react quickly," said Bonanno. "It gets more difficult if such communications technologies are not available to people."

Just 10 percent of Mexico's population regularly goes online, according to the country's Internet association, AMIPCI. The percentage is expected to be lower on the Yucatán peninsula, where Cancún is located, because of poverty in the jungle-covered region.

Despite this, organizers say they are confident that the available technologies will allow them to mobilize participants more effectively than ever before.

"Even with the distance and expense associated with getting to and protesting in Cancún, we're expecting between 10,000 and 20,000 people to participate," said Starhawk, an organizer with the RANT Collective.

"The Internet has allowed us to have a different kind of global conversation," she said. "Organizing for Cancún wouldn't be as effective without it."
http://www.wired.com/news/technology...,60180,00.html


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Filter
Cynthia L. Webb

RIAA Adopts High-Tech Gumshoe Tactics

The Recording Industry Association of America has turned into a high-tech detective agency in its quest to nab file swappers it accuses of online music piracy.

The association's much-ballyhooed campaign to slap unrepentant swappers with subpoenas and lawsuits relies on a number of tech-savvy methods to sweep the Internet for illegal behavior, according to court papers released yesterday. The papers are part of an ongoing RIAA quest to identify a New York woman accused of illegally trading songs through popular file-sharing sites.

Privacy advocates, who already smelled a controversy in the RIAA's attempts to identify song swappers, probably won't be too happy with the association's latest technology foray.

"Using a surprisingly astute technical procedure, the Recording Industry Association of America examined song files on the woman's computer and traced their digital fingerprints back to the former Napster file-sharing service, which shut down in 2001 after a court ruled it violated copyright laws," The Associated Press said, adding that the RIAA "found other hidden evidence inside the woman's music files suggesting the songs were recorded by other people and distributed across the Internet."

The unidentified woman is battling to keep her name secret, though the RIAA wants her name, claiming that she illegally traded about 1,000 songs on the Internet. The woman claims the songs came from her own CD collection and her lawyer says the songs have been stripped from her computer, the Associated Press reported. The RIAA has subpoenaed her ISP, a unit of Verizon Communications Inc., and she is fighting to halt the subpoena. Legal precedent might weaken her case, though, after a federal judge earlier this year ruled that Verizon must hand over the names of suspected file traders in response to the RIAA's demands.

More detective work snippets: In the court documents "the industry disclosed its use of a library of digital fingerprints, called 'hashes,' that it said can uniquely identify MP3 music files that had been traded on the Napster service as far back as May 2000. Examining hashes is commonly used by the FBI and other computer investigators in hacker cases." The RIAA is also tracking so-called metadata tags that contain hidden data inside a number of MP3 music files.
• The Associated Press via washingtonpost.com: Music Industry Discloses Some Methods of Tracking

CNET's News.com said "[t]he ongoing legal skirmishes will help stabilize the process by which the RIAA seeks the identity of file swappers, and ultimately, files lawsuits against them. But the latest round of briefs also gave new insight into exactly what kind of evidence the group will level against accused file swappers in court. Technically, neither the RIAA nor 'Nycfashiongirl,' the Kazaa user's online nickname, are supposed to be fighting over the details of what she may have downloaded or when and where she got the files. The only open proceeding is the subpoena for her identity, which will be approved or blocked on different grounds. But the filings appear to be aimed as much at the court of opinion as at the real court bench, and both sides seem to be fighting a case that hasn't yet been filed."
• CNET's News.com: RIAA Turns Up Heat On Subpoena Fighter

The Los Angeles Times said the RIAA's "detailed analysis of the woman's music had little bearing on the battle over her identity. But it could make it harder for her -- and other potential targets -- to defend against a copyright infringement lawsuit. ... Critics of the RIAA's plan to sue individual file sharers said the evidence offered by the RIAA is circumstantial and doesn't prove nycfashiongirl [her online name] violated copyright law."

Nycfashinongirl's lawyer is banking on privacy rights to protect his client. "You cannot bypass people's constitutional rights to privacy, due process and anonymous association to identify an alleged infringer,'" her lawyer, Daniel N. Ballard, told the AP.

Ballard, according to the LA Times "argues that the 1998 Digital Millennium Copyright Act, which gives copyright owners the ability to use subpoenas to learn the identities of alleged infringers, violated her constitutional rights to privacy, due process and free association. Although U.S. District Judge John D. Bates dismissed a constitutional challenge to the law this year, Ballard says Bates did so without hearing from any Internet users directly affected by the subpoenas."

The RIAA has some more ammunition in its fight. According to the paper, "two-thirds of the songs had unique identifiers that matched songs from the Napster database, indicating that they probably were downloaded without permission, not copied directly from a CD that nycfashiongirl owned. Ballard, her lawyer, said in an interview that the type of information in the RIAA filing 'ought to be presented to a judge' and contested before a person's identity is revealed."
• The Los Angeles Times: RIAA Details Kazaa User’s Huge Song Cache (Registration required)

The RIAA's hardball approach toward file swappers is not sitting well with some. While Phil Leigh, an analyst and vice president of Raymond James and Associates, told Macworld Daily News that the RIAA's litigation has help spur "a 22 per cent drop in peer-to-peer file trading activity between mid-June and late August. ... However, the move may also have broken the relationship between music consumers and the labels." Leigh wrote in a recent report: "Unfortunately, it also appears that the declining trend in CD sales accelerated during the period of reduced file trading."
• Macworld Daily News: Analyst Calls RIAA Strategy 'Flawed'

Meanwhile, a commentary in The Detroit Free Press this week argues that before the RIAA should be allowed to reveal the identities of file swappers, an earlier case involving Verizon Communications should be resolved. "As a result of a recent court decision in the case between the Recording Industry Association of America and the Internet service provider Verizon Online, every consumer's identity, home address and phone number are now available to anyone who can fill out a one-page form. Congress can and should step in to fix this problem immediately," said the opinion piece, by Peter Swire, a professor and former chief privacy counselor for President Clinton. "The Recording Industry Association of America lawsuits against users are beginning now, long before the appeal of the Verizon proceeding will be decided. Before the new spam proliferates, we should have fair procedures in place that will protect intellectual property while protecting privacy, free speech and due process."
• The Detroit Free Press: Comment: Don’t Delete Internet Privacy

I've Got Friends In High Places

Despite critics of its legal maneuverings against file swappers, a number of organizations have come to the defense of the RIAA in a related case. "Several groups, including a list of legal scholars, international copyright organizations, legal music services and other copyright holder groups filed 'friend of the court' briefs Tuesday, asking that an April ruling upholding the legality of file-swapping services such as Grokster and StreamCast's Morpheus be overturned," CNET's News.com explained in an article on Tuesday. "The briefs come as part of a renewed legal battle over the status of file-swapping services such as Morpheus and Kazaa, which were emboldened by federal Judge Stephen Wilson's surprise ruling in April. In that decision, he said file-swapping companies should be compared to VCR makers, which are not responsible for their customers' copyright infringements." The RIAA appealed that decision, along with the Motion Picture Association of America, and the National Music Publishers Association, CNET said.
• CNET’s News.com: RIAA, Studios Gain P2P Legal Aid

Downloading 101

The music industry has taken its fight to college campuses too, filing suits earlier this year against students it accused of using school computer networks to set up Napster-like file-sharing services. In a front-page article today, The Washington Post details how tech-savvy college students are helping to educate other students about the perils of music downloading, with the prodding of the RIAA. "If the recording industry catches you downloading music," American University sophomore Steve Morris told 50 incoming students recently, "you can be sued, and the university general counsel can't really protect you. And that'll cost you a lot of money. A lot lot lot of money." Morris is no file-swapping newbie: he has 1,500 illegally downloaded songs of his own, the article said, amassed before the RIAA started its subpoena brigade on file swappers. Morris is part of a group of college students that the music industry hopes will deter file swapping. "Last year, the RIAA formed a joint committee with university representatives to brainstorm ways of approaching the problem. Since many of the most enthusiastic offenders are freshman, the committee focused much of its energy on the late-summer orientation programs meant to acclimate 18-year-olds to college life. That, and the RIAA served more than 800 subpoenas in July to individual users -- admittedly in hopes of terrifying cash-strapped college students about what's known as peer-to-peer file-sharing software," the article said.
• The Washington Post: To Fight Music Piracy, Industry Goes To School

Radio-Activity

The Webcaster Alliance, a group of small online radio broadcasters, has filed an antitrust suit against the RIAA. The suit alleges that the record labels "have unlawfully inflated webcasting royalty rates to keep independent operators out of the market" and that "negotiations for arriving at royalty rates to broadcast songs over the Internet violated federal antitrust laws," The Associated Press said. The group wants a federal court to stop the major record labels from collecting royalty payments of .07 cents per song performance for every listener. The alliance "would like to see the per performance royalties eliminated. Instead, a flat percentage of commercial webcaster revenues, somewhere between 3 and 5 percent, would be a fair fee to pay," Ann Gabriel, president of Webcaster Alliance, told the AP.
• The Associated Press via The Washington Post: Online Music Broadcasters Sue RIAA

CNET's News.com provides more details on how the rates came about: "In June 2002, the Library of Congress finally set the rate at about 0.07 of a cent per song, with the fees retroactive to 1998. Small companies protested, saying that rate would put them out of business. Congress intervened, and after several start-and-stop initiatives, passed a bill that's aimed at protecting small Net stations," CNET said. "Like the original legislation, no set amount was included in the new bill, but it effectively ratified private negotiations between a small group called the Voice of Webcasters and the RIAA, which set royalty rates at a percentage of revenue instead of a flat fee per song. Larger companies such as America Online would continue paying the fee determined by the Library of Congress."
• CNET’s News.com: Small Webcasters sue RIAA
http://www.washingtonpost.com/wp-dyn...2003Aug28.html


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Forever Round
Mat Herron

Larry Root has words of consolation for those who wonder if the album is a dead format: “Fear not,” proclaims the 46-year-old record-store owner of Root and Roll in Jeffersonville, Ind.

For decades, Root has sold used vinyl LPs, compact discs and even cassettes to audiophiles who prefer liner notes and nice packaging to harvesting mp3s from KaZaa, Limewire and other peer-to-peer networks.

Root does not think he sells relics. “I think the album will still be around 50 years from now.”

That’s a bold prediction, given the industry’s current climate. File-sharing programs continue to provide free music to listeners with modems, high-speed Internet access and too much time on their hands.

Since it launched in April, Apple Computer’s iTunes service, which sells single tracks for 99 cents each and most albums for $9.99, has sold more than 6.5 million songs, a million of those in its first week. Roger Ames, Warner Music Group’s chairman and CEO, hailed the stratospheric numbers in a May 5 statement. “Apple has shown music fans, artists and the music industry as a whole that there really is a successful and easy way of legally distributing music over the Internet.”

True, but while programs like iTunes help artists retain what could have been lost royalties — and keep habitual downloaders out of prison — pressing issues remain about whether albums continue to be manufactured in conventional formats or drift into the ether to be snatched at random.

Will listeners cease to flip through rows of individually packed, long-playing records, 45s, CDs? Will they choose clicking mouses over tearing cellophane, bold artwork and liner notes?

If 2002 sales figures at Ear X-tacy are any indicator, the answer is no.

“Last year was our best year ever, despite the trend in the industry to go digital and allow people to steal music, or people taking it upon themselves to steal music,” says John Timmons, owner of the prized Bardstown Road music shop. “I could be totally wrong,” he adds. “I was wrong about 8-tracks.”

Timmons says customers are selling back their CDs to Ear X-tacy at a greater rate, but the store isn’t in dire straits. In fact, Timmons credited an upswing in vinyl sales to last year’s surge. “It’s not just the old farts like me” who like records, says Timmons. “There is something about holding a 12-inch album cover in your hand. It’s just a cool format.”

Time is of the essence

Roy Limpuwachara hasn’t sworn off brick-and-mortar record stores altogether. It’s just that, well, they aren’t open 24 hours a day.

He’s been buying music online for several years and likes the ability to shop without leaving the comforts of his own townhouse. “Most of it is convenience,” says Limpuwachara, 27. “You can do it any day of the week.”

Two months ago, Limpuwachara was on the verge of pleasing thousands of record store-owners when he drove to the Best Buy store on Shelbyville Road.

Alas, it was not to buy, merely to peruse.

“I don’t go to the mall that often,” he says, but he does frequent Best Buy and Circuit City to get an idea of what he wants to purchase online. He does not claim to be an e-music disciple. His proof? When the melodic rock band Guster rolled through town a few months back, he bought its latest CD, Keep It Together.

The physical album isn’t a goner, Limpuwachara says, but singles could be axed soon. Why should record companies spend cash to package, print artwork and market a single when they can — and do — post it on their websites for users to download?

Cassettes are set to go the way of the 8-track. They’re fragile, says Larry Root, succumbing easily to dust, heat and spilled liquids, and they corrode faster than CDs, which are easer to clean and virtually impervious to depreciation in sound quality.

Certain albums to gain value

Albums will take on a collectible nature, predicts Glen Hensley, the owner of Lonesome Town Records on Baxter Avenue. He sells bluegrass and folk music, and the bulk of his selection is CDs and LPs, though off in a corner, customers will spot cassettes. Judging by such inconspicuous placement, Hensley, like most storeowners, has relegated that format to the background.

“It’s much more personal,” Hensley, 43, says of an album. “It’s something you can hold onto.”

Hensley says downloading is part of a natural progression by music lovers who started taping songs off the radio.

Pasted on the wall behind his cash register is the front of an LP by the Louvin Brothers titled Satan Is Real. Two men wear white Elvis-type leather suits and pink scarves. Hovering over them is a likeness of the devil, pitchfork and all.

“You can’t download that,” Hensley says.
http://www.snitch.com/000399.html


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Web Quandary For Regulators
Michael Geist

The issue of Internet regulation has long been tied to the question of Internet service-provider liability. As the gateways to the Internet, ISPs were quickly identified as a potential "choke point" in the system that could effectively be used to regulate Internet activity.

ISPs cringed at the prospect that they might be held responsible for the conduct of their subscribers, arguing that they should be seen as an Internet equivalent to the phone company.

Just as phone companies are not responsible for the conduct of their subscribers or the content of the phone calls carried on their systems, ISPs contended that they should not be held responsible for the conduct of their users nor the content accessed on their networks.

While Canada has not yet developed legislation specific to Internet intermediaries, the U.S. Congress has been particularly responsive to the ISP's argument, enacting a provision in the Communications Decency Act of 1996 that granted near complete immunity to Internet intermediaries.

While most envisioned the statute would apply chiefly to ISPs, e-commerce giants such as eBay and Amazon.com have been prime beneficiaries of the law. They successfully invoked the statutory protection when facing claims of liability for allegedly defamatory postings or infringing sales on their sites.

Earlier this month, a U.S. appellate court broadened the statutory protection yet again. The court ruled that an online matchmaking service could not be held liable for an incident of identity theft, relying on the immunity provision as the basis for its decision.

The case involved a false posting on Matchmaker.com purported to be from Christine Carafano, a popular actress. The posting included a photo along with Carafano's e-mail and home address. After the actress began receiving death threats at home, she proceeded to unsuccessfully sue the service.

While U.S. law has provided strong protection for intermediary liability that might arise due to content that appears on their sites and systems, regulators have been busy searching for alternative choke points that can be used to regulate online activity.

For example, financial institutions — the payment intermediary in most online gambling transactions — have been identified as a potential choke point.

Under pressure from authorities such as New York State attorney general Eliot Spitzer, some have agreed to stop accrediting online gambling merchant accounts.

Similarly, Google, the Internet's most popular search engine and information intermediary, is regularly asked to remove links to controversial content. While the search for choke points has indeed mushroomed, the true scope of intermediaries in the Internet context is only now being realized. In a global, interconnected network, the question is no longer who is an intermediary, but rather who isn't.

As anti-spam advocates place open servers and others who allow spam to proliferate on "blacklists," they acknowledge that the distribution of spam involves not one, but two intermediaries — the ISP that provides the spammer with Internet access and the party maintaining an e-mail server that enables the distribution of the spam message to millions of in-boxes.

Of even greater interest is the identification of individual Internet users as intermediaries. Consider the hundreds of subpoenas recently filed by the Recording Industry Association of America against ISPs requesting the identification of their subscribers engaged in music file sharing.

As the RIAA prepares to sue individual file sharers, the shift in tactics represents the latest form of intermediary liability — potential liability for the millions of users in peer-to-peer networks such as Kazaa and Grokster who are all themselves intermediaries in the circulation of music across the globe.

The intermediary label applies to individuals in a range of other instances as well.

Last year, pharmaceutical giant Eli Lilly paid a hefty fine to the U.S. Federal Trade Commission after it accidentally revealed the e-mail addresses of hundreds of Prozac users in a single e-mail.

While the fine served as an important reminder to carefully safeguard personal information, most Internet users will recognize the incident as a fairly common occurrence.

Many individuals similarly become privacy infringement intermediaries when they accidentally hit "reply all" to an e-mail and in the process reveal dozens of e-mail addresses to all recipients.

Over the past two weeks, as the MSBlast and SoBig viruses spread across the Internet, millions of individuals became computer crime intermediaries. Most viruses depend upon a simple yet very effective distribution system — propagation through millions of individual users who serve as intermediaries in passing along the virus to friends and colleagues.

With Internet users joining ISPs, e-commerce companies, financial institutions and search engines as intermediaries, we must begin to reconsider what it means to be an intermediary on the Internet.

While the initial reaction was to provide broad legal protection for intermediaries, it may be time to re-evaluate that approach.

The issue has ceased to become whether an intermediary bears responsibility when harmful activity occurs online. The question is now which intermediary bears responsibility.
http://www.torontostar.com/NASApp/cs...d=968350072197


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

CD-Recordable Discs Unreadable In Less Than Two Years

The Dutch PC-Active magazine has done an extensive CD-R quality test. For the test the magazine has taken a look at the readability of discs, thirty different CD-R brands, that were recorded twenty months ago. The results were quite shocking as a lot of the discs simply couldn't be read anymore:

Roughly translated from Dutch:
The tests showed that a number of CD-Rs had become completely unreadable while others could only be read back partially. Data that was recorded 20 months ago had become unreadable. These included discs of well known and lesser known manufacturers.

It is presumed that CD-Rs are good for at least 10 years. Some manufacturers even claim that their CD-Rs will last up to a century. From our tests it's concluded however that there is a lot of junk on the market. We came across CD-Rs that should never have been released to the market. It's completely unacceptable that CD-Rs become unusable in less than two years.



On the image you can see the exact same CD-R. On the left you see the outcome of our tests done in 2001. On the right you see the same CD-R in 2003. The colours indicate the severeness of the errors in the following order; white, green, yellow and red whereas white indicates that the disc can be read well and red indicates that it cannot be read.

For those of you who are interested, the original Dutch article can be found here and in the September issue of PC-Active. Please discuss this subject in our Media Forum.
http://www.cdfreaks.com/news/7751


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Is Uploading Infringement?

For those of you who followed this, you'll know why I can't resist reposting this brief discussion from pho. Really interesting technical debate.
Posted by Derek Slater on 8/27/03; 4:46:05 PM from the Big Ideas dept.
http://blogs.law.harvard.edu/cmusings/2003/08/27#a315


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Software Customer Bill of Rights

Cem Kaner has written a Software Customer Bill of Rights. His general approach is to require that customers have roughly the same rights when they buy software as when they buy other products.

Much of what Kaner says makes sense. But at least one of his principles seems awfully hard to implement in practice:

2. Disclose known defects. The software company or service provider must disclose the defects that it knows about to potential customers, in a way that is likely to be understood by a typical member of the market for that product or service.

This is hard to implement because software products have so many defects -- big mass-market software products typically have thousands of known defects. And this is not just the practice of one or two companies; it's standard in the industry. If a vendors waited until all the defects were removed from a product, that product would never be finished and would never ship.

Some of the defects in software products are serious, but most are relatively minor. There is simply no way to explain them all to consumers. And sometimes it can be hard to tell in advance which defects will prove to be critical to customers.

Still, Kaner seems to be on the right track. It would be helpful if vendors disclosed the most serious known defects to their customers, so that customers could weight their impact in deciding which product to buy.
http://www.freedom-to-tinker.com/archives/000433.html


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Jane Doe, $150K/download, and Using the Color of Law: An Interview With Glenn Peterson

The RIAA is demanding that ISPs and universities provide it with the names and addresses of users who distribute copyrighted music online so it can sue these users for copyright infringement. Boston College and MIT challenged the RIAA’s subpoenas on narrow technical grounds, arguing that the RIAA had filed its subpoenas in Washington, DC, instead of Massachusetts. By contrast, you’ve argued that the RIAA’s approach is unconstitutional and violates the privacy and due process rights of your client (“Jane Doe”). Tell us more.

Procedural challenges, by and large, are curable. In the case of Boston College and MIT, for example, I expect the RIAA will simply re-issue the subpoenas within the appropriate territorial limits. What we are trying to do with Jane Doe’s case is intended to achieve more lasting results. We feel strongly that the section 512(h) subpoena process should be invalidated. It needs to be re-written to protect the constitutional rights of the individual subscribers. No doubt, music piracy is a bad thing. Sometimes, it is appropriately characterized as a form of property theft. As a societal problem, though, it is neither worse nor more alarming than other wrongs against property. Certainly no more a societal concern than elder abuse, drunk driving, vandalism, violence, identity theft, investor fraud, and a host of other behaviors. However, the music industry is pursuing music piracy with strong arm tactics and subpoena powers that far exceed those available against violent criminals. It is astounding to me that the law bends over backward to safeguard the constitutional rights of accused criminals and then completely ignores the same rights of teenage kids sharing music in an environment they have every reason to believe is legal. It is important for me to stress that we do not condone music piracy or copyright infringement. What we want to do is clarify what qualifies as music piracy and further to ensure that the so-called accused pirates have the same minimal constitutional rights that we afford to those accused of doing much more serious and harmful things than sharing music. I note that the RIAA has spent big bucks on public awareness campaigns. I’d like to see some of that money spent on educating people what music piracy includes and what it doesn’t. Problem is, legal scholars, industry leaders, and courts of law are not yet in agreement on what is and isn’t infringement in the P2P environment. So, the current industry plan seems to be to scare everyone out of the P2P community. To some degree, I think it’s working and that is truly a shame.

What do you think about Matt Oppenheim’s assertion that your client’s arguments “have already been addressed by a federal judge -- and they have been rejected. Courts have already ruled that you are not anonymous when you publicly distribute music online”?

We’re making several constitutional arguments that have not been raised before. We are also making some arguments that have been raised, but not directly on behalf of the true interested parties--the subscribers. ISPs, such as Verizon, raised some constitutional arguments but they couldn’t put the right arrow in their bow because they weren’t representing a subscriber.

The other big issue that didn’t get enough, if any, attention is the abuse factor. Arguably the most dangerous consequence, the subpoena power can be put in the hands of anyone willing to pretend to have a copyright claim. Without a judge's review, these fraudulent requests are easily passed of as legitimate ones, passing under only the minimum, ministerial scrutiny of a court clerk with a rubber stamp. The potential abuser categories are limitless, and include everything from annoying marketers to swindlers, child abductors, blackmailers, and terrorists.

EFF attorney Fred Von Lohman has been quoted as saying, “The most important issue is that if you are innocent, if the RIAA has screwed up, it is critical that individuals have the ability to challenge the subpoenas before their identities are compromised.” Do you think members of the public should know the identity (i.e., screen name) of a user accused of illegal file sharing before a court has even made a decision about her or his guilt? (Interestingly, the EFF’s website require you to already know an IP and/or screen name before you can see if it is on the list of suspected file sharers.)

I agree that subscribers have to be given notice and an opportunity to object to the subpoena. I can see no reason whatsoever that they wouldn’t be given this minimal right. Especially since, once their identity is released, the harm is irreversible. You can’t put the toothpaste back in the tube.

There are interesting similarities between the RIAA’s campaign, Prohibition, the War on Drugs, and the “War on Terrorism.” Can you think of anything else in U.S. history that resembles the RIAA’s current scorched earth campaign? What types of fallout do you anticipate?

The industry’s current anti-piracy efforts are reminiscent of 1930s era mob tactics—intimidation and threats combined with the subtext: “we wouldn’t want anything bad to happen to you or your family,” and “we’ll be watching you.”

What makes the industry’s current campaign even more alarming than an involuntary meeting with a mob boss is that the industry has cloaked itself with the awesome power of our federal court in Washington D.C. The industry is exploiting federal laws, created by their considerable lobbying influence, and using “color of law” instead of brass knuckles.

What penalties do you think file swappers could expect to suffer? We’ve all heard numbers like $750 to $150,000 per violation. And if a bill proposed by Representatives John Conyers and Howard Berman is passed, the penalty could jump to as much as $250,000. What does this mean? Say someone has shared a gigabyte’s worth of music—about 200 songs; $750 times 200 equals $150,000, and $150,000 times 200 equals $30,000,000. What is actually reasonable? How should courts calculate actual damages in file sharing cases? And what constitutes a “violation”? This all sounds frighteningly close to Dr. Evil’s request for “one billion dollars” in Austin Powers.

I think that we need to re-think the damages provisions in the Copyright Act. We altered the law with the DMCA in order to catch the law up with technology and we need to do it again with respect to damages. I feel especially passionate about this with respect to the “intent” factor. The intent associated with printing 1,000 counterfeit “Harry Potter” books and that associated with kids sharing music with other kids is obviously different and I can scarcely visualize a scenario where $150,000 per download would be appropriate. But the threat is there and the industry is blowing on that horn as loudly as possible.

What is the best way for 1000+ people who have received subpoenas to challenge the RIAA? A class action is possible in a case in which there's a common nucleus of operative fact, in which each claim arises out of the same transaction or occurrence. Might a class action be possible here, given that the identities of all those affected have been compromised by the RIAA's actions? Could the fact that similar injuries have been caused by the same RIAA campaign make a class action appropriate?

A class action could certainly be appropriate. I know the ACLU and EFF are watching these matters very closely.

What advice do you have for someone who has RECEIVED an RIAA subpoena?

It depends on who it is that receives it. If it’s an ISP, I think Verizon has the most responsible model for dealing with the subpoenas. If it’s an individual subscriber, consider yourself fortunate to have received notice of it. The scenario Jane Doe is fighting is the one where you don’t know about the subpoena until the RIAA shows up at your door with a summons and a lawsuit. In any case, I strongly suggest seeking legal advice to deal with it. That’s not a plug for lawyers, it’s just that I’ve heard lots of people voice bad ideas about how to respond and many of those ideas would just make a bad situation worse.

Thank you very much for letting us interview you, Glenn. We all look forward to seeing the results of your client's case!
http://grep.law.harvard.edu/article....06&mode=nested


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Lik-Sang Settles Mod Chip Case Out Of Court

Former online retailer Lik-Sang International has settled a case brought by Sony out of court, undertaking to cease trade in any copyright circumvention devices and paying an undisclosed compensation sum.

The company, which formerly operated the popular online game retail site Lik-Sang.com (now under new ownership and unaffected by this decision), has also agreed to cancel its appeal against the ruling in favour of Sony by Hong Kong's High Court in March.

However, it continues to fight similar cases against Nintendo and Microsoft, both of whom were involved in the action against the company in September of last year which won an injunction against it for selling copyright circumvention devices.

According to Lik-Sang International, the decision to settle with Sony was taken due to new developments in international law surrounding mod chips and similar devices, as well as for simple financial reasons.

As part of the settlement, Lik-Sang International has undertaken not to become involved in the trade of circumvention devices for any Sony products, an undertaking which also covers the publication of information related to Sony's copy protection measures.
http://www.theregister.co.uk/content/54/32490.html


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

the changing tune of the record producers
lessig

The recording industry has been strongly opposed to a statutory or compulsory license for digital music (not the Internet radio kind, but a reasonable kind that would enable the spread of digital content). They object that “the market” should set the rate for music, not a federal statute. (Of course, they have no hesitation appealing to the statutory rate for damages, as opposed to the ordinary market measure for damages, when it comes to a breach, but that’s a separate matter).

But the history here is fun. Here’s a quote from a 1967 House Judiciary Report, considering a modification to the law as it existed then:

[T]he record producers argued vigorously that the compulsory license system must be retained. They asserted that the record industry is a half-billion-dollar business of great economic importance in the United States and throughout the world; records today are the principal means of disseminating music, and this creates special problems, since performers need unhampered access to musical material on nondiscriminatory terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the 1909 statute adopted the compulsory license as a deliberate anti- monopoly condition on the grant of these rights. They argue that the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.
Copyright Law Revision, Committee on the Judiciary, 90th Cong. 1st, Sess., Rep. No. 83 66 (March 8, 1967).

“The result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.”

Nicely put.
http://www.lessig.org/blog/archives/001444.shtml


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Music Industry Copyright Wars – The Paper

Abstract:
Piracy is one of the biggest threats confronting the entertainment industry today. Every year, the industry loses billions of dollars in revenue and faces the potential loss of hundreds of thousands of jobs. To protect itself against Internet pirates, the entertainment industry has launched the latest copyright war. So far, the industry has been winning. Among its trophies include the enactment of the Digital Millennium Copyright Act, Vivendi Universal's defeat and purchase of MP3.com, the movie studios' victory in the DeCSS litigation, the bankruptcy and subsequent sale of Napster, the Supreme Court's rejection of the copyright bargain theory in Eldred v. Ashcroft, and the recording industry's recent success in RIAA v. Verizon Internet Services.

Notwithstanding these victories, the war is expanding and has become even more difficult for the industry to fight than it was a year ago. Today, copyright law is no longer a complicated issue that is only of interest and concern to copyright lawyers, legal scholars, and technology developers. Rather, it is a matter of public significance, affecting all of us in our daily lives. The ground has shifted. If the entertainment industry does not pay attention to the public and if it continues to use its ill-advised battle strategies, it eventually might lose the war.

Delivered as part of the 2003 Frontiers in Information and Communications Policy Lecture Series at Michigan State University, this Article examines the strategies used by the entertainment industry to fight the copyright wars: lobbying, litigation, and self- help. It also explores the impact of Eldred v. Ashcroft on these strategies, the decision's ramifications on future constitutional challenges to copyright laws, and recent developments in the international copyright arena. It concludes by arguing that the entertainment industry should change its existing strategies in light of the proliferation of peer-to-peer file-sharing networks and the increased consciousness of copyright issues.
http://papers.ssrn.com/sol3/papers.c...ract_id=436693


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

US Backs Down On Copyright
Simon Hayes

US TRADE officials have backed off from a tough line on music, movie and software piracy, admitting that shoehorning Australia into a copyright regime based on criminal law may be "a bridge too far".

Under heavy lobbying from the US entertainment and software industries, the Office of the US Trade Representative had listed the harmonisation of copyright legislation among issues to be raised with Australian negotiators for the Free Trade Agreement. But the head of the US Department of Commerce's International Trade Administration, Undersecretary Grant Aldonas, said America would not be pushing too hard on intellectual property during the current negotiations.

"It shouldn't be much of a reach to get to the point where there are almost uniform laws," he said. "We all agreed to the WTO principles - the question is, can we harmonise them?"

Mr Aldonis' comments came despite the US raising concerns about parallel importation legislation in its 2003 Foreign Trade Barriers report. Parallel importation permits the importation of a product by a person other than the local authorised distributor.

The US Trade Representative warned parallel importation had led to increasing piracy of DVDs and VCDs. The report also highlighted the "relatively low priority" assigned by Australian state and federal police to the enforcement of copyright law, a topic US officials are understood to be concerned about.

But Mr Aldonas said the US was concerned with "more subtle things" like patent protections, and said Australia already had fairly tough civil copyright laws. The Australian understands the recent Australian Federal Court decision on "mod chipping" satisfied one key concern - circumvention devices - raised in the Foreign Trade Barriers report.

"Both Australia and the US have a high standard of intellectual property protection," Mr Aldonas said. "Are there things we would want to achieve? Yes. Would I make a lot out of it? No." He said the US and Canada had not harmonised copyright laws, despite signing a free trade agreement 16 years ago. He said getting an immediate agreement in place on intellectual property "might be a bridge too far".

Toughening Australia's copyright regime would be "as much to the benefit of artists here as in the US".

The Australian Government is reviewing the 2001 Digital Agenda legislation.
http://australianit.news.com.au/comm...E15306,00.html


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Downloads, EPs, Singles Conspiring To Kill The Album Format
Gil Kaufman, with additional reporting by Jonathan Cane

With album sales slipping for an unprecedented third straight year — the first extended slump since the introduction of the CD in 1982 — labels and artists are beginning to wonder if the album is a thing of the past.

More than half a century ago the debut of vinyl LPs was a revelation for music fans, more than tripling the amount of music that could be held on a single album side. By the early '70s, albums were being stuffed with up to a dozen hit tracks and often ran 40 minutes or more.

Flash forward to today, when CDs max out north of 70 minutes, frequently come bundled with a bonus DVD and cost nearly twice as much as those old albums. Balance that against the ease of illegally downloading your favorite song or legally downloading it from iTunes for less than a buck and you might wonder, "Who needs to spend $18 on an album?"

"The days of releasing an album with 17 or 18 cuts are over," said Charles Goldstuck, president and CEO of the RCA Music Group, home to the Strokes, Christina Aguilera and Foo Fighters. "It's difficult to give full quality with such an abundance of music. ... I think we can expect to see more extras in the future instead of additional songs."

And with the resurgence of singles and EPs, you can also expect to see labels delivering music to fans in more varied sizes and shapes.

According to the most recent numbers from the Recording Industry Association of America, singles sales have seen a precipitous drop-off over the past decade, but don't toss those singles on the 8-track ash heap just yet, Goldstuck said. He is encouraged by success of the debut singles from "American Idol" winner Ruben Studdard and runner-up Clay Aiken, both RCA- affiliated artists. The singles sold more than 285,000 copies their first week out and helped give a boost to the moribund format (see "Has America Changed Its Mind? Clay Beats Ruben On Singles Chart").

"What that told us about the singles market is that with the right repertoire and setup, you can post the kind of numbers we haven't seen in five or six years," Goldstuck said. "I think the success of these songs is causing labels to really look at this area again."

For years record labels had resisted releasing commercial singles because they had discounted them so deeply the format became a money loser. But with smashes such as Kid Rock's "Picture," Korn's "Did My Time" and Chingy's "Right Thurr" proving that fans still want to buy hit songs (see "Kid Rock, Sheryl Crow Bring 'Picture' Into Focus"), the format could be poised for a comeback.

Another potential nail in the coffin of the old-school album is the explosion in a la carte downloading on sites like Apple's iTunes. After all, why buy the entire 50 Cent album when all you really want is the "P.I.M.P." remix?

Since its debut in April, the iTunes store has proven that, given the opportunity, people like to pick and choose their tunes. Of the 6.5 million songs downloaded as of July 16 (the last date for which numbers were available), less than half (46 percent) were sold as part of an album, according to Peter Lowe, iTunes' director of marketing. "People want albums, too, but there is no question that they go to the store and buy the individual song they're interested in hearing. ... That instant gratification factor of finding the song you want is a big part of it."

The 99 cent price tag doesn't hurt, either. "We think digital music has already changed the way people enjoy and interact with music," Lowe said. "We had a campaign a few years ago that had the tagline 'Rip Mix Burn,' and the middle part of that is the most important — taking the music you love and putting it into collections you want and in the order you want to listen to it."
http://www.mtv.com/news/articles/147...headlines=true


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

UMG, EMI Press On With Suit Vs. Bertelsmann
Brian Garrity

The labels and publishers suing Bertelsmann over its relationship with Napster are contesting a motion by the German media conglomerate, Billboard Bulletin reports. Universal Music Group, EMI and a group of music publishers filed a motion yesterday (Aug. 18) in U.S. District Court in New York to deny Bertelsmann's request that the copyright-infringement suits be dismissed.

The move is a response to Bertelsmann's motion filed last month, in which it claimed that U.S. copyright law "does not permit recovery from a third- party lender for damages the plaintiffs failed to recover from Napster." Bertelsmann also said its actions "were aimed at benefiting the entire music industry," as its loan to Napster was "specifically earmarked" for a service "in which all the major record labels and music publishers were invited to participate."

In response yesterday, the labels and publishers countered that Bertelsmann's motion is not supported by the facts or the law, and that the company is not the "Good Samaritan" for the record industry it claims to be.

"Both today and when it entered into its 'strategic partnership' with Napster, Bertelsmann's public claim that it wanted to 'legalize' Napster is irrelevant," UMG says in a statement. "Bertelsmann made and supported the decision to continue the infringing activity of Napster and its users for its own financial gain and without obtaining, or even seeking, the consent of UMG or other copyright owners. UMG looks forward to a trial on the merits of its claims."

EMI says, "Bertelsmann's motion is a disingenuous attempt to perpetuate the myth that it was a passive investor in Napster. EMI stands firm in its belief that we have a strong case against Bertelsmann."
http://www.billboard.com/bb/daily/ar...ent_id=1957831


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Employee misuse of computers said widespread
Press Release

P2P or not P2P? Programs exploit downloaded and potentially copyright-infringing music, movies, software There's more bad news for bosses wondering what employees are doing on their office computers. AssetMetrix Research Labs says at least some are probably indulging in illegal sharing of copyright content.

AssetMetrix, which helps analyze and manage the use of personal computers in businesses, says its technology checked more than 175,000 PCs at 560 corporations and found so-called peer-to-peer applications in 77 per cent of the companies. Some companies had P2P software on as many as 58 per cent of their computers, and no company with more than 500 PCs was P2P-free.

AssetMetrix suggests a typical company with 1,000 personal computers might have 80 or more users of P2P programs exploiting "hundreds of gigabytes of downloaded and potentially copyright-infringing music, movies and software."

P2P applications can also breach network security and corporate policy, says AssetMetrix.

"Some viruses are specific to P2P applications and almost all P2P applications install third-party applications that are considered 'trackware' or 'adware.' "
http://www.canada.com/montreal/speci...F-E3B143D09ACB


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

End Of An Era For File-Sharing Chic?
Declan McCullagh

Not too long ago, civil liberties groups aiming to protect peer-to-peer networks like Napster and Kazaa were happy to dispense some free legal advice to the Recording Industry Association of America.

Instead of trying to shutter P2P networks and outlawing a blossoming form of technology, the RIAA's lawyers should sue the specific individuals who were violating copyright law, groups such as the Electronic Frontier Foundation and Public Knowledge suggested.

In April 2002, EFF staff attorney Fred von Lohmann suggested that "a few targeted lawsuits would get the message across." von Lohmann also said that P2P users "are the ones who are the alleged pirates. If this fight were really about stopping piracy, you would have expected some pirate to actually be sued."

Now that RIAA has called that bluff and announced it will in fact start suing some of the more swap-happy P2P pirates as soon as next week, civil liberties groups are less supportive of the idea. With the threat of lawsuits looming, the EFF is now on the pulpit deriding heavy-handed litigation tactics and handing out how-not-to-get-sued advice on its Web site.

A change of tune? Nope, says Wendy Seltzer, an attorney for the San Francisco-based nonprofit group. "Those quotes are half the story Fred was saying at the time," Seltzer says. Suing individuals is "at least a more appropriate direction for their lawsuits, but it has the potential to turn all those people who are accused of direct infringement into critics of the system."

It's not just EFF. Public Knowledge, a Washington, D.C.-based group that is an ardent RIAA foe, also talked up the idea of suing individuals--but apparently no longer endorses the idea.

Last September, Gigi Sohn, the group's president, told a House Judiciary subcommittee that: "An industry-initiated lawsuit against a large-scale infringer could also have the benefit of serving as a deterrent to other bad actors. As we have seen in other contexts, specifically targeted lawsuits and other legal action can have a deterrent effect, and also educate the public as to what is legal."

Mike Godwin, a staff attorney with Public Knowledge, said the only reason his colleague mentioned private lawsuits was because the RIAA was targeting P2P networks. "The RIAA was saying we need more laws or new laws. Gigi said, 'Look you have this and you have a whole bunch of other tools as well, including passive spoofing and new business models...' You've got the tools you need in existing law.' That was what the thrust of the hearing was about."

A second PR challenge

The turn of events shows how far the conventional wisdom has come since Napster first converted millions of ordinary citizens into copyright scofflaws.

Suits against the public might be the legitimate legal recourse, but they could only backfire in the court of public opinion, the thinking went at the time--and still goes in some circles.

But the civil libertarians may have got this one right. Now that the RIAA has steeled itself for the worst, the downside of suits seems surprisingly less frightening to the industry than it once did--particularly if they can cherry-pick unsympathetic defendants.

To be sure, the RIAA attorneys have to worry about getting some egg on their faces when they kick off their lawsuit campaign. It's not the legal strategy that's at risk. After all, sharing hundreds or thousands of copyrighted MP3 files really does violate U.S. law.

Instead, what the RIAA's lawyers and lobbyists fear, they admitted in private conversations at a conference in Aspen, Colo., last week, is a public backlash. They're worried about what happens if, for instance, they accidentally sue some 13-year-old cancer patient who's unlawfully downloading music as a way to relieve the pain of chemotherapy.

Ouch. That may be a cold-blooded way of thinking, but it is understandable. Public opinion is becoming increasingly, and appropriately, critical of the RIAA and the companies that pay its bills--and that's even before they head into court. (Although the RIAA counts over 100 members, the ones that matter are the five big record labels, namely Universal, Warner, BMG, Sony and EMI.)

Last week, for instance, the RIAA was forced to reassure Sen. Norm Coleman, R-Minn., that it would only target the most flagrant violators of copyright law. "RIAA is gathering evidence and preparing lawsuits only against individual computer users who are illegally distributing a substantial amount of copyrighted music," wrote Cary Sherman, the RIAA's president.

Identifying only the most prolific infringers is the easy part. On Kazaa and some other file-sharing services, any user can peruse the contents of any other user's shared folder. With that information in hand, it's trivial for the RIAA to prioritize the names it's collected after firing off over 1,000 subpoenas invoking the Digital Millennium Copyright Act (DMCA).

What's not as trivial is puzzling out which people on that unenviable list should be eventually named as defendants in the lawsuits. Imagine the negative fallout if RIAA ends up suing a family member of Rep. Lamar Smith, R-Texas., who chairs a crucial copyright subcommittee--or a music industry executive who secretly hangs out on Grokster every evening.

Megan Gray, an attorney in Washington who sues copyright infringers for a living, says the RIAA is likely to use private investigators to winnow the list down to desirable defendants.

"That's the whole point of why they're doing the DMCA subpoenas," Gray says. "They get the person's identity, where they live, and they hire a private investigator. It happens all the time. It is very common in infringement lawsuits to conduct an investigation of the defendant prior to suing them."

Gray adds: "They're going to cherry-pick the most unsympathetic defendants. You don't want someone on TV looking like cherubic Heidi or with a record like Mother Teresa. You want a skanky pimple-scarred gangbanger."

Godwin, the lawyer from Public Knowledge, is even more emphatic: "They want to determine that the defendant has a lot of piercings and a tattoo. Preferably unemployed, dropped out of college, has lice and bad beard maintenance, and he's somehow using the MIT broadband network to distribute this to pirates in the Pacific Rim. That would be the perfect RIAA defendant."

That's the way lawyers think when they want to win a case. It's also why the RIAA employed the DMCA subpoenas in the first place.

If all the RIAA wanted to do was sue the people with the fattest MP3 collections, they could file suit with "John Doe" named as a defendant and figure out who it was later--they wouldn't need the DMCA. But the DMCA's turbocharged subpoena process lets them glean names from Internet service providers and universities without risking the consequences of suing an unknown person.

For its part, the RIAA denies it has hired private investigators. "We're not doing that," spokeswoman Amy Weiss said. "From a PR perspective, we know that this program is not going to win us any PR points. We're doing it because it's the right thing to do and to send a deterrent message and curb piracy on the Net. We are looking at the most egregious infringers and those are the people who will be sued."

Weiss said the RIAA will file its "first wave" of lawsuits in early September against hundreds of individual defendants, in multiple federal courts across the country. Other waves will follow, she said.

Is it a lot of fuss over still-to-be-filed lawsuits targeting P2P pirates? Yes, it is. But it'll pale by comparison to what happens if the Justice Department uses the 1997 No Electronic Theft Act to prosecute P2P users for criminal violations of copyright law--a step the RIAA has suggested, but the Bush administration has not yet taken.
http://news.com.com/2010-1071-5067473.html


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Why Sobig Is Bad For Privacy And AV Vendors
John Leyden

Eight years ago when I first used the Internet, while doing support work in a Manchester cyber café, email was a joy.

I could contact my friends, even when they were on the other side of the world, on the click of a mouse. It was so much easier and cheaper than the alternatives - snail mail or the phone.

Email is still enormously useful as a journalist (not least as an important source of news leads) and but the increased prevalence of spam and viral messages is undermining this.

Drowning in malicious code

Email services firms such as MessageLabs and Brightmail will tell you that one in two emails is now junk email. At The Register this figure is more like four in five emails, and that was before the recent outbreak of Sobig-F.Currently the ratio of legitimate email to malicious junk is approximately two in 100. Clearing out my email inbox is becoming a near Herculean task.

Outsourced security

To get around the junk mail overload, home users can use tools such as Spam Assassin or Mailwasher while small businesses can use managed services like MessageLabs, Avecho.com, intY and the rest.

With Spam Assassin - the most accurate anti-spam package we've found so far - you still have to download email, so if you get sent in excess of 3,000 copies or bounced messages over the weekend (a real figure for us here) that's still a problem.

And if you use managed services (which alleviate the bandwidth headache) then privacy is undermined. By definition you have to trust a third-party - an undesirable consequence of using services that do reduce the signal to noise ratio of email traffic down to sensible proportions.

The emerging breed of anti-virus firewalls and all-in one security appliances enable larger businesses to tackle the problem in-house but these are prohibitively expensive for home users and many SMEs.

Internet moves to an ex-directory model

As well as the expense, the increased prevalence of malicious and nuisance emails creates an uncomfortable dilemma for news services and Net-facing email firms.

In response to Sobig-F, many firms will be forced to make their customers jump through more hoops (Web-based forms being one of the more elegant approaches) to get in touch with them. Some will be tempted to abandon existing email addresses as hopelessly compromised.

Although Sobig-F is, at least for net-facing firms, an order of magnitude worse than anything we've seen before, things have deteriorated over the last three years or so.

Every day, in every way, it's getting worse and worse

Starting off with the Love Bug and moving on through the Anna Kournikova worm, Nimda, Klez and the rest each new worm is more ferocious. Virus writers have upped their game in terms of social engineering tricks and propagation techniques; the ability to scour hard drives for email addresses and spoof viral-laden messages are examples of this.

In particular the speed at which viruses take hold is outpacing the capacity of AV firms to develop fixes for users to deploy them. The critical path has gone critical.

Managed services firm MessageLabs reckons that at the height of the Sobig outbreak one in 17 emails were viral.

Rival firm intY, which specialises in providing services to SMEs, reckons smaller businesses were particularly affected by the prolific worm. At the height of the outbreak last week, intY was blocking one in three emails. Even now one in seven emails that intY analyses are viral.

According to Paul Richards, development manager at intY, the higher rate of virus interceptions among its user base is accounted for because smaller businesses were disproportionately targeted by the worm. Smaller businesses generally have a wider diversity of email contacts and this too helps explains why they were hit harder, Richards added.

Sobig-F is, lest we forget, sixth in a series of increasingly aggressive worms, and it's unlikely to be the last.

The blame game

So who's the blame for this mess?

Microsoft is an easy target. Its success on the desktop has created a monoculture through which viruses can spread. Until Windows 2003, Microsoft products shipped with security turned off by default. The auto-execution features of Outlook and Outlook Express allowed viruses to execute in the preview pane, until it issued a patch.

Now Redmond has embraced security by default in the design of its products but this will take years to work through the system. Microsoft points out that it has supplied fixes to correct most of these issues.

But how often are they applied? Not frequently enough, clearly.

It takes just a small percentage of users to get infected for a virus to become a bandwidth-hogging, time-consuming nuisance for the rest of us.

With Sobig-F even those Linux, Unix, OS/2 and Apple users who are immune from the infection are still flooded with viral email, to say nothing of the bounced messages from AV scanners reporting that messages they never sent are infected with viral code. Windows users who properly secure their systems see much the same effect.

AV vendors have mined a rich seam of free publicity on the back of Sobig and Blaster. They say you must deploy and update AV tools to protect yourselves against the worm. Enterprises should consider blocking executables at the gateway, they add.

It's a familiar theme and it's wearing thin.
http://www.theregister.co.uk/content/56/32510.html