Peer-To-Peer News - The Week In Review – August 30th, '03 - P2P-Zone

JackSpratts · 28-08-03, 09:47 PM

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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

JackSpratts · 28-08-03, 09:47 PM

Net Anonymity Service Un-Backdoored
Thomas C Greene

The Java Anonymous Proxy (JAP) service, a collaborative effort of Dresden University of Technology, Free University Berlin and the Independent Centre for Privacy Protection Schleswig-Holstein, Germany (ICPP), has been allowed to suspend its monitoring of users' IP traffic pending a decision on the legality of back-dooring it.

Collectively known as the AN.ON Project, the operators appealed a lower court's decision allowing the German Feds to obtain reports on users' access to a particular IP address (no doubt having to do with KP or bomb-making, etc).

The appeals court has allowed the operators to discontinue logging until their appeal has been answered. When a decision has been reached, the JAP team says they will document the whole affair, but cannot do so until the court issues its ruling.

A single record of access to the forbidden IP address has been logged but not yet disclosed to the Feds pending the higher court's decision, the JAP team says.

In a previous article The Register criticised the way the JAP team handled its initial confrontation with the Feds, ie., by waiting quietly until a user discovered the back door before acknowledging the situation.

We believe there were better ways of dealing with the court order, either by posting a prominent warning that the service might be subject to monitoring by the authorities, by leaking the information to the press outside Germany, or by disabling the affected proxies temporarily in protest.

We hope that if the JAP team should lose its appeal and be ordered to resume monitoring, particularly under a gag order, it will find a way of giving the public a proper heads up. Their previous performance hardly inspires confidence, but there is always opportunity for redemption.
http://www.theregister.co.uk/content/6/32533.html

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3 Hour TV Show On File Sharing
Press Release

TechTV to Present Exclusive Interview With Infamous Music File-Sharing Entrepreneur KaZaA CEO Nikki Hemming in Two-Hour Music Wars Special Airing Friday, September 12 at 8 PM E.D.T.
Monday August 25, 8:05 am ET

'Music Wars' to Feature Interviews with Top Players in the Digital Music Debate, Including Former RIAA Chairman Hilary Rosen, Congresswoman Mary Bono, Rocker Tommy Lee, Country Music Star Charlie Daniels, Recording Artists Michelle Branch, Liz Phair, Phish and The Dead

Followed by One-Hour 'Music Wars: Open Mike' Featuring Maverick Records' Jeremy Welt, Public Enemy Rapper Chuck D, and Many More Who Will Answer Live Audience and Call-In Questions

SAN FRANCISCO, Aug. 25 /PRNewswire/ -- TechTV, the cable network available to over 40 million subscribers in the US, will present an in-depth, two-hour special on the debate surrounding music file swapping. TechTV Executive Vice President of Programming and Production Greg Brannan made the announcement today.

Music Wars will air Friday, September 12 at 8 PM E.D.T. and feature an exclusive interview with Nikki Hemming, the CEO of KaZaA, the company that owns and operates the most popular file swapping software, as well as several outspoken politicians, celebrities, music industry executives, technology leaders and consumers. The program will be followed by a live, one-hour Music Wars: Open Mike special, featuring a panel of experts discussing the topic of music file swapping and Q&A with a studio and call- in viewer audience.

"The issue behind peer-to-peer file sharing continues to polarize opinion throughout the entertainment industry and in political circles," said Brannan. "For the first time, however, the consumer is being directly affected. With the RIAA recently launching an aggressive attack on individual song swappers in an effort to expand its legal battle against copyright theft, we felt that now was the time to present a comprehensive view of what's happening, who will be affected and why, and what the future holds for peer to peer technology and file sharing. As one of the first networks to follow the developments in this ongoing debate, TechTV is uniquely qualified to provide viewers with the most informed and accurate presentation of all facets of this issue."

Music Wars hosted by Michael Pereira and Chris Leary of TechTV's "Tech Live" will strive to answer the question: "Where will you get your music?" The special will explore music piracy, and file swapping, the record industry's response, the competition in the growing online music market, the value of a song, as well as the history of file sharing and future innovations.

Issues

With the RIAA seeking legal action against consumers who share copyrighted music files, many viewers want to know what the legal consequences of their uploading and downloading music files may be. Many believe the RIAA's efforts to battle copyright theft are extreme, including Nikki Hemming, CEO of Sharman Networks, the company that owns and operates KaZaA. The elusive Ms. Hemming granted TechTV an exclusive interview to respond to charges the RIAA has leveled against her. Also included in the special will be an in-depth interview with Ms. Hemming's most out-spoken opponent, RIAA's former chairperson Hilary Rosen. On the consumer side, Jesse Jordan, the college student who became one of the first to be hit with a lawsuit by the RIAA, will discuss his case. Jordan recently settled his case after paying $12,000 to the RIAA.

History, Options

TechTV has gathered an impressive group of industry executives and political figures to address this topic, review the history of file swapping and provide their opinions on viable options for consumers. Featured interviews include those with Mary Bono, California Congresswoman; Senator Norm Coleman; Scott Blum, CEO Buymusic.com, Sean Ryan, VP Music Services, RealNetworks; Chris Gorog, CEO Roxio, the owners of the new Napster; Ted Cohen EMI Records Charles Goldstuck, COO RCA Records; Alan McGlade, President & CEO MusicNet; Dennis Mudd, COE MUSICMATCH and many more.

Music Wars will be followed by another special presentation on TechTV hosted by Michaela Pereira and Leo Laporte, the co-host of TechTV's "The Screen Savers." Music Wars: Open Mike, will feature a panel of industry experts engaging each other, as well as a live audience and viewers calling into the program, in further debate on the file swapping issue. Among the panelists will be Maverick Records' Jeremy Welt, Rapper Chuck D and many more. Music Wars: Open Mike will air Friday, September 12 at 9 PM E.D.T.

TechTV's companion website was the first to publish the screen names of those consumers who have been subpoenaed by the Recording Industry Association of America (RIAA) for illegal music file sharing. For continuing coverage on this topic and more, visit www.techtv.com.
http://biz.yahoo.com/prnews/030825/lam095_1.html

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Music Sharing Debated
Danielle Lagana

The Recording Industry Association of America has brought hundreds of subpoenas to the federal courts for copyright infringement against people downloading music from file sharing programs such as Kazaa and Limewire, and your name could be among them.

“The RIAA’s targeting of downloads is based on several things. An estimated 60 million Americans are now trading music and other files online. That’s more than the number that voted for President Bush in the 2000 election. This means that the problem is, to the RIAA, of significant proportion,” said Dave McClure, president of the U.S. Internet Industry Association.

According to the RIAA, it “defends artists and record labels from pirates who sell and distribute fake copies of their music; however, many targets of the subpoenas are file sharers that generally do not redistribute the music files.”

“The content industry is well aware of the damages that can be done even if there is no commercial gain,” McClure said. A case a few years ago, involving a student placing large amounts of software on a university server for downloading, concluded that under the laws at that time he could not be convicted because he did not personally profit from his actions.

“The content industry therefore lobbied for and got a change in the law, dubbed the ‘No Electronic Theft Act,’ which makes it a crime to violate copyrights even if you do not profit from the act,” McClure said.

Cal State-Long Beach students have felt the fire. Copyright infringement has left some students expelled and others under investigation.

“We are actively monitoring and managing our campus Internet bandwidth based on network applications,” said Steve La, director of Network Service. “Our university does have computing user policy to address copyrighted materials. In general, it is illegal under the federal law and the Digital Millennium Copyright Act.”

La said many students and peer-to-peer file sharers are not aware of the spy agent, known as spyware that transfers the users’ information to an unknown site without the user being notified.

“These types of activities are more than a simple annoyance; some may consider their privacy is being invaded,” La said.

Several CSULB students refused comment on this issue for fear of the federal law consequences and campus policy.

Buddy Clark, lawyer and drummer of Orange County said he doesn’t think any government agency has the right to come into private homes by way of computer.

However, Clark feels differently about file sharing. “I think it’s great,” he said. “The more the [songs] are played, the more the band is known, the more people show at the live shows and the more people buy all the goodies the band sells. It’s called promotions, and all bands need it no matter how big they are.”

The issues are many and can become confused.

“File sharing itself isn’t illegal,” said Greg Bildson, CTO of file sharing service Limewire. “There is plenty of legitimate content out there. The RIAA tactics are heavy-handed and we have major problems with them. Their use of the Digital Millennium Copyright Act to access account information from the Internet service providers appears to violate citizens’ right of due process under the law and users’ privacy.”

Because of the DMCA Web site, owners are not liable for providing portals that people use to swap files.

“On Download.com we list software in a way that people can easily find but we neither create, sell, nor host the files,” said Wayne Cunningham, senior editor for Download.com. “We have no legal responsibility about what software does or how it is used because we merely point to it, which is an editorial function.”

The lawsuits targeting file sharers and the means to find these people are problems that have yet to be solved. However, a recent court decision in Massachusetts denied the RIAA information about students from MIT and Boston College. The senate is also investigating the hundreds of subpoenas the RIAA has issued.

“The issue is whether the RIAA should be able to obtain the identity of music downloaders without filing a lawsuit against the downloader for copyright infringement,” McClure said. “The RIAA has gotten a judge in the federal system to approve its use of a shortcut in due process. The same judge heard the appeal of his own decision, but that decision now goes to a higher court for a ruling.”

Web sites like boycott-RIAA.com encourage file sharers to write to their local representatives and provides electronic forms to do so.

Because of the vast number of subpoenas issued to file sharers, the Electronic Frontier Foundation has created a link in which file sharers, past or present, can see if they have been a target of the RIAA.

To see if your name is on the list of subpoenas, visit www.eff.org.

College students seem to have a large number of file sharers among them.

“We recommend that students speak up about these issues and that they help educate the general public about what is going on,” said Bildson. “Laws are made to enrich citizens’ lives, not to empower permanent monopolies for big media companies.”

“Congress is now facing the fact that is trying to deal with the biggest disconnect between consumers and the law since the days of Prohibition,” McClure said.
http://www.arbiteronline.com/vnews/d.../3f49a16fecbf0

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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.thestar.com/NASApp/cs/Con...l=969048863851

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Symantec's New Norton AntiVirus 2004 Is The World's First Comprehensive Antivirus Solution To Protect Consumers From Spyware
Press Release

Symantec Corp. (Nasdaq:SYMC), the world leader in Internet security, today announced Norton AntiVirus 2004, the newest version of the world's most trusted antivirus solution. Utilizing new, state-of-the-art technology, Norton AntiVirus 2004 will provide consumers with core protection against certain emerging non-virus threats such as spyware and keystroke logging programs. Scheduled for wide availability in early September, Norton AntiVirus 2004 will empower home and small office users to proactively ward off privacy and security breeches that are often caused by the presence of these non-virus threats.

"With the emergence of recent high profile security threats like BugBear and Blaster, which are complicated and blended in nature, traditional antivirus solutions are no longer enough to guarantee trouble-free computing," said Steve Cullen, senior vice president of Consumer and Client Product Delivery at Symantec. "The additional protection provided by Norton AntiVirus 2004 helps combat spyware and keystroke logging programs, which can be left behind by some of these new blended threats. Spyware can also be acquired through everyday Web surfing, installing itself in the computer's background, is also frequently with most users never knowing it is there."

The new expanded threat detection capabilities of Norton AntiVirus 2004 will include scans for programs on the user's computer that can be used with malicious intent to compromise the security of a system, spy on the user's private data, or track users' online behavior. To help ensure maximum protection Norton AntiVirus 2004 will identify and block these threats at the point of entry to the system, detecting the threats during scans of email and instant message attachments, or during scheduled or on-demand system scans.

Norton AntiVirus 2004 will also offer users of Windows 2000/XP added protection from viruses lurking in compressed files -- the type of files commonly exchanged with the use of services such as peer-to-peer networks or instant messaging. This new, real-time compressed-file scanning feature prevents users of file-exchange services from sharing or downloading infected files even if those files are compressed. Additionally, as a measure to protect users from pirated or counterfeit software, Norton AntiVirus 2004 will also now include a product activation component.

Like previous versions of the product, Norton AntiVirus 2004 will continue to help users achieve maximum protection with minimum effort by automatically scanning all files for malicious code, and automatically removing viruses, worms, and Trojan horses without requiring user intervention. Protection is further enhanced by Norton AntiVirus's consistent ability to protect automatically against both inbound and outbound online threats at all points of entry. Unlike many of its competitors, Norton AntiVirus 2004 will also install out of the box with all key protection settings and technologies active by default, including real-time scanning, automatic updating, and sophisticated heuristics.

To ensure Norton AntiVirus 2004 users' protection stays updated against new online threats, Symantec's LiveUpdate will check for new antivirus updates whenever the user is online. LiveUpdate will then automatically and unobtrusively download updates in the background to minimize disruptions, thus allowing users to achieve the continued peace of mind that comes with knowing their antivirus product is working at its best.
http://www.businesswire.com/cgi-bin/...m&footer_file=

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Hmmm. New Peer-To-Peer?

Website Creates A Distributed Library Of People's Books And Videos

From the site

“This is the software distribution page for the Distributed Library Project, a website which creates a distributed library of people's books and videos. The project is an experiment in creating community and sharing information within a town or city.

Unfortunately, the traditional library system doesn't do much to foster community. Patrons come and go, but there is very little opportunity to establish relationships with people or groups of people. In fact, if you try to talk with someone holding a book you like - you'll probably get shushed. The Distributed Library Project works in exactly the opposite way, where the very function of the library depends on interaction.

Users create accounts complete with bios and interest enumerations, then list the books and videos that they own. Those users are then free to browse the books that others have listed - sorted by proximity, interest, and book commonality. If a book or video is available, a user can check it out directly from the owner.

There is an ebay-style feedback system for managing trust - users who return books on time get positive feedback, while users who damage books or return them late get negative feedback. These points create an overall "score" that lenders can use to judge the trustworthiness of a borrower.

The system also supports user reviews, ISBN lookups, and collaboritve filtering.”
http://www.thoughtcrime.org/software/dlp/

“How does it work?

Create an account, then list the books and videos that you own. You will then have access to the multitude of books and videos available in other people's collections. You can search for specific authors or titles, browse individual collections, find nearby users, or find people who like books in common with yours. You will have access to user-written reviews and have the opportunity to write your own.

If the owner of a book or video you're interested in has time for you to pick it up, you can check out items for a 2, 7, 14, or 30 day period (at the owner's discretion). Returning books late will get you negative feedback, while returning books promptly will get you positive feedback. You are never under any obligation to lend an item if you don't feel comfortable doing so.”
http://www.communitybooks.org/

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DVD-Copying Code Loses Free Speech Shield
John Borland

The California Supreme Court ruled Monday that a Web publisher could be barred from posting DVD-copying code online without infringing on his free speech rights.

The state's high court overturned an earlier decision that said blocking Web publishers from posting the controversial piece of software called DeCSS, which can be used to help decrypt and copy DVDs, would violate their First Amendment rights. An industry technology coalition called the DVD Copy Control Association (DVD CCA) had sued dozens of people in California courts, contending that posting the software online violated its trade secrets rights.

Monday's state Supreme Court decision did leave room for another legal about-face, asking a lower court to revisit the question of whether any industry trade secret rights actually were violated.

But judges said that for now, property rights outranked free speech rights in this case, because DVD copy-protection technology was never meant to be public. Nor did the DeCSS code itself contribute significantly to a debate over whether DVDs should be encrypted at all, the judges said.

"Disclosure of this highly technical information adds nothing to the public debate over the use of encryption software or the DVD industry’s efforts to limit unauthorized copying of movies on DVDs," the court wrote. "We do not see how any speech addressing a matter of public concern is inextricably intertwined with and somehow necessitates disclosure of DVD CCA's trade secrets."

The long-running case, originally filed in 1999, has been a closely watched test of how much freedom individuals have to distribute software online that runs against corporate or other powerful interests or even violates a law.

The defendant in the case, software developer Andrew Bunner, was one of hundreds of people to post a piece of software called DeCSS online in 1999. The software, created by Norwegian teenager Jon Johansen partly to allow DVDs to be played on a computer with a Linux operating system, could more broadly be used in the process of decrypting and copying DVDs.

The Motion Picture Association of America (MPAA) sued many of the Web sites that posted Johansen's code, arguing that under the federal Digital Millennium Copyright Act (DMCA), it was illegal to create or distribute. A New York federal court agreed and barred 2600 Magazine publisher Eric Corley from posting it on his Web site or even linking to other sites that carried the code.

In California state court, the DVD CCA, which holds intellectual property rights to the copy-protection technology on DVDs, separately sued Bunner and dozens of others, saying they had violated the group's trade secret rights.

Bunner's case is the only one still pending. Most of the defendants did not appeal the trial court's initial preliminary injunction that bars them from publishing the code. One other defendant, Texas resident Matthew Pavlovich, won exemption from the case after the state Supreme Court ruled that he couldn't be sued in California.

The DVD CCA welcomed the ruling as an unambiguous victory.

"The DVD CCA is gratified the California Supreme Court has re-affirmed that trade secrets are protected from theft and illegal publication under California law," Weil, Gotshal and Manges attorney Robert Sugarman, who represents the industry coalition, said in a statement. "The Court's decision confirms that the First Amendment is not a shield to allow thieves to distribute stolen intellectual property."

Not a complete loss

Although the ruling is a loss for Bunner, the programmer's attorneys welcomed parts of the decision, saying it actually opened up promising new avenues for their client.

The ruling did say software code like DeCSS should be afforded some strong First Amendment protection, even if trade secrets rights trumped free speech shields in this particular case. However, the court cautioned that its decision was based on a very narrow reading of the earlier decisions, including the assumption that the original trial court had ruled correctly that the release of DeCSS had violated the industry coalition's trade secrets.

The court ordered the case to be sent back to the appeals court level, where judges would review the trade secrets issue more closely. Bunner's attorneys said they expected to show the appeals court that information such as DeCSS that was widely dispersed on the Net could not qualify for trade secret protection.

"We are pleased that the court has found that a strong level of First Amendment scrutiny applies in trade secrets cases," said Gwen Hinze, an Electronic Frontier Foundation attorney who has worked on the case. "We don't think that there is a trade secret here."

While the DeCSS cases still set an important precedent, the DVD-copying issue has moved on. Other software that allows DVD copying is widely and freely available online, and retail packages are even sold in stores such as CompUSA.

The leading producer of that retail software, a company called 321 Studios, also has been sued by the MPAA. A decision is expected in that case soon.

Outside attorneys who are looking at the case say the ruling should make the broader software industry breathe a quiet sigh of relief.

The previous appeals court ruling, which had said Bunner could not be blocked from posting the code online due to First Amendment protections, threatened to undermine ordinary software companies' ability to protect their own intellectual property, some attorneys said. Under the previous ruling, a disgruntled employee might be able to post a company's proprietary code online and claim free speech rights, for example.

Monday's Supreme Court ruling will let companies protect their legitimate trade secrets from online distribution while still holding out the possibility that DeCSS might ultimately be deemed too widely distributed to qualify for that protection, some attorneys said.

"The reversal on those narrow grounds is important and helpful to the software industry in order to protect its trade secrets," said Jonathan Band, an intellectual property attorney with Morrison & Foerester. "The earlier decision could have been a problem for software companies."
http://news.com.com/2100-1028-5067665.html

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The BBC's Digitally Televised Revolution
Stefanie Olsen

The British Broadcasting Corp., the United Kingdom's largest broadcaster, plans to digitize its archive and let people download programs for free online, BBC Director-General Greg Dyke said Sunday.

"The BBC probably has the best television library in the world," Dyke said while speaking at the Edinburgh International Television Festival. "Up until now, this huge resource has remained locked up, inaccessible to the public because there hasn't been an effective mechanism for distribution. But the digital revolution and broadband are changing all that."

"For the first time, there is an easy and affordable way of making this treasure trove of BBC content available to all," Dyke said.

The BBC runs two public TV stations, a 24-hour cable news channel, five national radio networks, an Internet news service and digital cable stations. It also operates BBC Worldwide and BBC Broadcast Limited, which run international TV stations. Dyke said the corporation plans to create the BBC Creative Archive to make select material from BBC properties available for private use in the United Kingdom. A student using a broadband connection from home or the library, for example, could access BBC material to help complete homework or create a multimedia presentation, he said.

Dyke did not say in his speech when such a free service would be available.

The move comes as many media companies transition their holdings from analog to digital, and contemplate ways to benefit from content commercially. Companies such as CNN and Walt Disney are digitizing their media, while others such as National Geographic begin to sell rights to legacy material such as photography.

The BBC's effort will help usher in a "second phase of the digital revolution," in which the government, public institutions and corporations help create public, rather than commercial, value in their holdings, Dyke said. He added that such a movement requires a commitment from all parties and will combine public money with new digital technologies for social good.

"I believe that we are about to move into a second phase of the digital revolution, a phase which will be more about public than private value; about free, not pay services; about inclusivity, not exclusion."
http://news.com.com/2100-1025-5067729.html

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Tiny Hitachi Drive Hits 4GB
John G. Spooner

Hitachi Global Storage Technologies is delivering a tiny 4GB hard drive to electronic device manufacturers for testing.

The 4GB Microdrive, a miniaturized version of a hard drive used in PCs, can be used by a wide range of devices to store data files for computers or image files for digital cameras, among other uses, the company said. The San Jose, Calif., hard-drive maker is offering samples now and plans to ship the 1-inch drive in volume in November.

Derived from technology gained when Hitachi purchased IBM's hard drive business and formed a new joint venture, the Microdrive gives Hitachi Global Storage Technologies an avenue to compete with several miniature storage formats used in computers, handhelds, digital cameras and other electronics devices.

The Microdrive will take on flash memory products such as Compact Flash cards or Sony's Memory Stick and will also bolster Hitachi Global Storage Technologies' position against forthcoming storage devices, such as Iomega's 1.5GB Digital Capture Technology removable hard drive.

The Hitachi unit says that the benefits of the new Microdrive over flash and other storage methods are a speedy data transfer rate and a relatively low price.

The company expects the 4GB Microdrive to sell for $499. Lexar Media sells 2GB and 4GB flash memory cards that cost as much as $799 and $1,599, respectively, according to its online store.

Hitachi Global Storage Technologies will also offer a 2GB version of the Microdrive starting later this year. Like past versions, the new Microdrives will fit into a standard, Compact Flash Type II slot, allowing them to be used by devices that can accept memory cards and other add-ons that use the format. The company will continue to sell a 1GB Microdrive as well.

Companies that are evaluating the 4GB drive--some of which already use the 1GB model--include Blaupunkt, Eastman Kodak, Minolta, Nikon, Olympus, Pentax, Sigma and Sony.
http://news.com.com/2100-1041-5067530.html

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Indie Labels Lure Net Music Stores
John Borland

A new set of services aimed at giving independent music labels online distribution is springing up, hoping to reach companies like Apple's iTunes and the new Napster.

San Francisco-based Independent Online Distribution Alliance (IODA) is the latest to hit the scene. It launched Monday with deals in place to negotiate digital rights on behalf of 50 labels whose music it hopes to place with the growing Net download and subscription services. A few older companies, such as CD Baby and The Orchard, also represent the digital rights of independent artists and labels.

"What we're saying is that this solves problems for both parties, and particularly for the independent labels," said IODA founder Kevin Arnold. "Typically, independents are companies with small staffs that don't have a lot of expertise with digital rights, and don’t have in-house attorneys."

The move towards organization of independent labels could help speed the acceptance of authorized music subscription and download services, most of which have focused so far on acquiring music from the five major music labels.

The "Big Five" labels represent about 80 percent of the music sold in the United States. Independents typically have small but often dedicated fan bases. Some industry reports show that many indies have actually fared better than larger labels through the economic downturn, with sales growing, sometimes substantially, in 2002 while overall industry revenues fell by close to 11 percent.

The digital music services have shown interest in signing and distributing independent label music. EMusic, one of the oldest subscription services, offers a catalogue stocked almost wholly with content from small labels, and has won kudos from its fan base for its eclectic selection. Apple staffers met with representatives from independent labels in June, and are reportedly creating a program to let the labels link up with the company's iTunes service.

IODA and other independent representatives want to give the indie labels more leverage, so they are able to win royalty deals closer to those the major labels get. Arnold said his service is launching with about 10,000 songs in its portfolio, including ones by relatively well-known bands such as Green Day, Cracker, The Donnas and Del tha Funkee Homosapien.

The new services also take care of activities that range from digitizing songs to managing royalty databases.

Some analysts say that the big digital music companies, from iTunes to the retooled Napster, which has not yet launched, need to focus on having strong major-label content deals before worrying about independent music, since their survival will depend on reaching the mass market. But distinguishing themselves with content that appeals to fervent music fans will also be important as the market matures.

Services like IODA "may be a bit ahead of the game," said Jupiter Research digital entertainment analyst Lee Black. "But bringing the independents in is important, because it increases the diversity and breadth of the services, making them more interesting."
http://news.com.com/2100-1027-5067907.html

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Music Fans Slowly Come Around To Paying For Downloads
Francine Brevetti

THE LAWSUITS against file-sharing software distributors and threats of legal action against individuals who download music illegally have done little to stem the flow of song swapping, according to a survey by Comscore.

While many music lovers have turned to legal download sites, they remain a fraction of those who continue to download music illegally. The survey found more than 11 million computers downloaded from sites considered illegal by the recording industry, while less than 2 million used legal sites in May.

A recent Forrester Research study indicated that 86 percent of the young people who admitted to illegal file-sharing said they would stop if they thought there was a serious chance of going to jail or paying a fine. But the study was conducted one week after the RIAA announced it would start prosecuting people for illegal file sharing of music, pointed out Forrester analyst Josh Bernoff.

"That (study) doesn't prove lawsuits will stop downloading, and in fact they won't. But the suits have a good chance of slowing downloads," he said.

Some say that the prices of CDs themselves are enough to keep people entrenched in their

file-sharing habits, especially among the young who don't have the money to spend for a CD. Some also like the idea of sharing their music libraries with a community.

Vocalist and instrumentalist Mike Blake stopped downloading music after the RIAA began pursuing file-sharers. Although the Alameda resident might be expected to see artists as protected by RIAA-approved downloading, he has no compunctions about file-sharing.

"It's a digital issue that needs to be worked out, not a moral issue," Blake said.

He's just joined MP3.com, a legal service that he likes for its array of artists and the fact that a listener can sample an artist or a track before buying. A Macintosh user, Blake is currently investigating Apple's iTunes Music Store.

But he misses file-sharing.

"I enjoy cats getting together in a community and sharing it ... these new services get rid of community," he said.

"Say (there are) two cats, one in Georgia and one in California. And I got the music over here. What is wrong with that? Nothing except (the industry) ain't getting a cut," he said.

But Dave Ellis, who is also an artist, feels differently. The saxophonist and music teacher does not use legal services yet. The Hercules resident's reluctance seems to be based on his conflicted feelings toward the recording industry's cold treatment of unknowns.

Ellis strongly favored "free downloads for unknown artists. For them, it's useful to get your music into people's hands," he said.

And he scolds the record industry for taking so long to solve this issue of copying and sharing music that has alienated the labels, the artists and consumers.

While he was studying music production at college, he observed that major entertainment companies were then focused on writing code that would prevent copying rather than adapting the completely new technology for society's best interests.

It was obvious in the early 1990s, when digital technology was being developed, that "it would change everything," he said.

Others, like David Cassel, don't see the depth and breadth of music repertoires that they desire. A technical writer and the creator of Web log Destiny-land ( www.destinyland.blogspot.com, the Oakland resident finds the commercial subscription services too limited. He just bought an out-of-print vinyl copy of The Ventures' "Where the Action Is" for $4.

"The stuff I love is too obscure to make it onto them," he said, like the 1958 novelty act, The Nutty Squirrels.

Cassel said he finds more variety on user-to-user services where he's consistently located multiple copies and "rare and obscure tracks."

Bob Ohlweiler, senior vice president of business development for Musicmatch, acknowledged that the online music download industry is in its infancy and that companies have been struggling to digitize just the most popular music.

Lovers of classical and more arcane selections will have to be patient, he said.
http://www.sanmateocountytimes.com/S...90778,00.html#

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Solving The Payment Problem For Open Source And P2P File Sharing
Matt Asay

The software and entertainment industries have a problem, but it's not the problem they think it is. Both believe they have intellectual property problems. In the case of software, large software vendors are struggling to figure out how to keep their IP and associated revenues from being cannibalized by open source software. Record labels and movie studios, for their part, believe that peer-to-peer piracy is destroying their ability to charge for the art they produce. Both are wrong. Neither has an intellectual property problem. Instead, both have a payment problem.

In the face of open source and P2P, consumers (be they businesses or individuals) are less and less likely to want to pay for the goods that the software and entertainment industries deliver. Not because consumers are evil, but because the models of access to software or media have outpaced the models for monetizing that access.

Companies like SCO, unable or unwilling to move into the 21st-century software business, cling to their IP and wage lawsuits against competitor and customer alike, trying to frighten the world into believing in their 20th-century business model. On the entertainment side, groups like the RIAA sue end users, write threatening letters to businesses and universities, and generally try to force the P2P genie back into the bottle.

This is folly. Pure folly.

Why? Because these tactics make criminals out of a massive pool of would-be buyers. Such tactics focus so much on the encroachment on their IP (and the ability to monetize it) that they fail to see the expanded world of opportunity now open to them.

Consumers want control

Software companies have charged a premium for their IP for years; who can blame consumers for grabbing a more malleable (and generally cheaper) alternative when it presents itself? Why pay hundreds of dollars to Microsoft for Office when I can download OpenOffice and get all the functionality I need, or nearly all, for free? Why lock myself into a single vendor of an operating system when I can rely on the fluid innovation of Linux?

Of course, open source technology is not truly free of cost, because I must make trade-offs to use an open source product. And no, access to source code is not a panacea to all problems. But given the margins that proprietary software companies have been able to command, and given the strict control over their code that they have maintained, no one should be surprised when consumers look elsewhere, even if the open source alternatives are not yet perfect substitutes for proprietary products.

On the entertainment side, the entertainment industry has been conditioning consumers to not pay for many, many years. Radio and TV have conditioned consumers to expect free entertainment. Under these models, the only thing consumers pay is the slight annoyance of listening to or watching advertising. No money ever changes hands between the content creator and the consumer in these two media.

And, as with software, P2P networks deliver greater control over entertainment to the consumer, so who can blame consumers for flocking to these services? In MP3 music and DIVX movie downloads, the concepts of radio and TV have been perfected. Suddenly, consumers hear or watch what they want, when they want.

In both software and entertainment, the consumer's focus is not really about avoiding payment. Rather, the impetus for using these alternatives to IP is to maximize access and control. The matter of cost is of secondary concern.

Hence, my earlier statement that the software and entertainment industries have a payment problem, and not an IP problem. Both industries need to invest their resources in figuring out how to monetize this rabidly open market.

Solving the payment problem

The solution to a new technological reality is not to try to litigate that reality away. The music industry learned, or should have learned, this with radio in the 1920s. Radio crushed recorded music revenues, and all sorts of dire warnings were issued as to the record labels' ability to survive. But the labels fought back, not by slapping lawsuits on radio, but rather by resolving the payment problem through ASCAP, a licensing regime that permitted radio and the record labels to flourish.

What then, are possible payment models for the software and entertainment industries?

Software

Big IT vendors like IBM, Sun, and HP are already solving the payment problems presented by open source, though they may not recognize that they are doing so. I am referring to "on-demand computing," or, to use the name that I prefer, "utility computing." In this model, IT vendors (mostly hardware companies at present) deliver computing power in a utility fashion: Enterprise Consumer X gets the computing cycles when it needs them, rather than buying all of the hardware/software itself.

Importantly, customers in this model buy IT (including software) as a service, rather than as a standalone product. As such, customers do not really buy software at all -- they buy a solution to their business problem. Whether the "guts" of that solution are open or closed source does not matter anymore. Customers will increasingly pay for value, delivered as a service: SP (service property) rather than IP (intellectual property).

A closely related model is the ASP model. Companies like Salesforce.com are already delivering this model, and doing exceptionally well. As with utility computing, in the ASP model software is delivered to the customer as a service, hosted on a central server by the vendor, and customers pay for the value they access over the network. Whether the software underpinning the service is IP or open source becomes irrelevant.

One additional benefit to customers, in either the utility or ASP models, is that they no longer need to worry about SCO-like lawsuits. Why? Because they would not actually be in possession of code in source or binary format. The vendor might still be in violation of IP infringement, but the customer would not be. Given this benefit, let us hope that the Free Software Foundation does not short-sightedly "close the ASP loophole," as they are reportedly planning to do with version 3.0 of the GPL. Closing this so-called loophole would benefit proprietary interests like SCO; it would not advance the FSF's cause of freedom in code.

These two emerging models for software both enable software companies to continue to deliver value to customers and get paid for it. Many more models are possible, but will not be discovered by fixating on forcing customers into outdated business models.

Entertainment

Interestingly, at least one obvious model for entertainment has already been suggested for software: the utility model. Each month, I pay money to the cable utility (for broadband and CATV access), the phone utility, and the electric utility. Why could I not also pay the entertainment utility?

The easiest way to administer this would be to add a flat rate to the ISP bill, perhaps $5.95 per month. That sum would then be divvied up between the ISP and the entertainment industry, parceled out in a manner similar to the way ASCAP works. If the utility wanted to charge in a more accurate and granular fashion, the ISP could charge according to data usage. (To get really granular, one could also envision a pay-per-file methodology whereby each .mp3 or .mpg would be charged against a user's account. The technology for metering such usage is already available.)

This utility model would completely eliminate the piracy problem, because consumers simply could not evade the fees, absent burning the songs onto physical media and mailing them. To the extent that such an option is politically impossible for ISPs (because they would lose customers to non- compliant ISPs that do not charge the data fees), the ISPs could lobby Congress for legislation that mandates their compliance. My own feeling is that there would not be much customer churn; consumers generally are not going to chafe at the idea of paying (remember: it is the mode of payment that currently keeps most from paying, and not the idea of paying), and will not want to lose an email address simply in the name of piracy.

Another option is to allow users to bill downloads to their cellular phones. Again, the idea is to make payment seamless, so that the consumer is focused on enjoying the art, and not the act of payment. If he's online, the user simply types in his phone number (with some additional added security to prevent unauthorized charging of downloads to a third-party account), and gets the music (with the cell phone company managing payment to the record or movie label on the back end). If he's offline but using his cell phone, I can envision Johnny sending Jane a download of Audioslave's newest "love song," routing it to her IP address for immediate download the next time she logs on to her computer.

Or perhaps the answer is much more mundane: advertising. It has worked for television -- why not for MP3 and DIVX downloads?

Conclusion

This is not an exhaustive list of possible solutions to the payment problem inherent in open source software and digital media piracy. Smarter people than I will innovate these models. The point is that neither industry will ever discover these models by looking backward. Innovation around access to great new technology has outpaced innovation around payment for that technology, but this is a momentary lag, one that the software and entertainment industries will resolve by focusing on payment, rather than property. Let's look forward.
http://newsforge.com/article.pl?sid=...e=thread&tid=3

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Radiant Data Corporation Receives U.S. Patent for Distributed File Consistency and Distributed File Locking; Patented Technology Enables Global File Synchronization over Any Network
Press Release

Radiant Data Corporation, the leading provider of continuous data availability products to the Linux market, today announced that the United States Patent and Trademark Office has granted the company a U.S. patent for its technology developments in the field of distributed file consistency.

The patent is titled 6,611,848, Methods for Maintaining Data and Attribute Coherency in Instances of Sharable Files. The patent describes a means for maintaining data consistency among any number of data storage nodes over long distances, which is a critical requirement for disk-based disaster recovery and collaboration solutions.

"Radiant Data has invented the world's first peer-to-peer replicating file system," said Rex O'Neal, General Manager of Radiant Data. "Our Radiant Data Server (RDS) software product provides a simple means to replicate, synchronize and share data reliably and securely on a global basis.

"File system technologies are receiving increasing attention today because they are the only efficient means to merge application and data storage management domains on a global basis, and among heterogeneous hardware platforms. This patent is the first to issue related to our revolutionary product architecture and validates our leadership in the development of data sharing technologies," O'Neal added.
http://www.businesswire.com/cgi-bin/...m&footer_file=

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New Morpheus 3.3 File-Sharing Software Increases Advanced Security and Privacy Protection
Press Release

Latest Morpheus Version Includes Anti-virus Scanning, Web Search And Electronic File Shredding Functionality

StreamCast Networks(TM) Inc., creators of the popular file-sharing software Morpheus(TM) and a global leader in peer-to-peer communications technology, today announced the release of its new Morpheus(TM) 3.3 software. In addition to continuing its no spyware policy, Morpheus 3.3 provides users with the ability to automatically scan downloaded files with their anti-virus software to help to ensure that their computer remains infection-free from malicious viruses. Morpheus 3.3 includes increased Web search capabilities, improved third party chat functionality, and the ability to electronically shred downloaded files in order to prevent against file security intrusions.

(Photo: http://www.newscom.com/cgi-bin/prnh/...15/SFTU091LOGO )

"Like our previous version, Morpheus 3.3 responds to our users' concerns about invasions of their privacy and security. We expect more users to download Morpheus 3.3 because it provides a faster, safer, more secure file- sharing experience while delivering reliable downloads with greater search results," said Michael Weiss, CEO of StreamCast Networks, Inc. "Consumers can expect to see regular feature upgrades and technological innovations from us that reflect their needs and desires."

Morpheus 3.3 incorporates security functionalities that allow users the option to more privately protect the host IP address of downloaded files by linking to a worldwide network of public proxy servers that act as intermediaries between Internet users. Morpheus 3.3 allows its users to access public 'blacklists' of IP addresses that are believed to violate the privacy of users. The new version of Morpheus is also a smaller file application requiring less computer resources while adding network speed and performance.

Morpheus 3.3 features include:
-- Advanced file sorting capabilities -- folders for music, documents,
videos, and photographs
-- Metadata editing capabilities
-- More user configurable options -- including ability to become a leaf or
ultra-peer
-- Smart installer -- uses less bandwidth for downloading
-- Magnet support -- ability to create clickable Web links to download
files or email friends
-- Improved chat features
-- Hashed IP's -- conceals user IP-address within Morpheus
-- Anti-Virus protection -- enables virus scans of downloads
-- Web search -- ability to search the entire Web from within Morpheus
-- File-Shredder -- easily shred files

Morpheus 3.3 is available for free at http://www.morpheus.com .

About StreamCast Networks, Inc.

StreamCast Networks, Inc., creators of the Morpheus software product is a leading global communications technology company that is revolutionizing Internet digital media distribution and communications via software that enables users to communicate directly with one another on an unprecedented scale. Users according to CNET's download.com have downloaded over 114 million copies of Morpheus.
http://biz.yahoo.com/prnews/030826/sftu049_1.html

Top 10 D/Ls - Singles

BigChampagne

Ben Affleck Admits To File Sharing
P2PNet

You probably don't think you have a lot in common with Ben Affleck, right?

Like, he has no worries about where his next mil is coming from, or anything like that. And with an Oscar behind him, his career is set to bop right along.

File-sharing? Forget it. He'd just buy the label. Pirate movies? That'd be money right out of his pocket.

But apparently not.

"Yes. I file share," he tells Jessica Corbin during a TechTV interview. "I do. Yes. I think it's really interesting."

Saying the music industry has missed out Big Time by not clueing into the business possibilities offered by downloading, he's got his numbers all wrong, but he's got the right idea.

An annual subscription based system "is the one that works," he says. Users would be charged around $200 a year for access to the 'entire library'. "You pay more directly to the artist," he says. "You have less overhead. You pay no shipping or packing."

On movies, "There is piracy," but movies will be downloaded regularly within five years, he says. "Maybe it won't be available first weekend" but after that, pay a premium for first download and then lower the amount as the movie release date gets further and further away.

Who said Affleck for President? (RIAA president, of course ; )
http://www.p2pnet.net/article/7505

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Time Bandits
Adam Turner

It's never been easier to put in a hard day at the office without actually getting any work done. By the time you check your email, swap instant messages, play a few games and watch the latest movie trailers, there's hardly any time left for reading Dilbert, scanning the news headlines and taking a few online surveys.

Cyber-bludging was always going to take off among a people who consider bludging a national pastime but are quick to embrace new technologies. In 2000, spruikers of internet monitoring and blocking tools warned that workplace productivity was under threat from the internet.

With the Y2K bug behind them and "spam" and "security" yet to become technology buzz words, vendor CommSoft claimed cyber-bludging was costing the nation $300 million a year. By 2002 it was $4.6 billion, according to Websense, but this year WebSpy has settled on the more conservative $1 billion mark.

Such vendors offered surveillance solutions such as allowing the boss to read our emails and watch our every online move. Non-essential access is sometimes blocked - turning us into a nation of internet haves and have-nots in the workplace.

Almost half of internet use in the workplace is of a personal nature, according to research by Queensland's Griffith University released last month, which found company policies on internet use are often either inadequate or not properly communicated to staff.

A British poll by online employment portal Monster this year found that 50 per cent of workers admitted that surfing the internet and chatting online are their biggest time-wasting vices at work.

Meanwhile, employers have also discovered that a little internet access can be a good thing. As well as giving their workforce access to a wealth of information, the internet offers services such as online banking, shopping and paying bills - meaning staff can no longer blame queues at the bank for taking an extra-long lunch break.

Today the focus of monitoring and blocking vendors has moved from catching those slacking off online to protecting companies and employees from the dark side of the web.

While blocking the minority of workers who download unsavoury content, employers are also attempting to halt the avalanche of porn-laden spam aimed at everyone from the managing director to the tea lady.

The long arm of the lawyers has also reached into cyberspace. Entertainment conglomerates are breaking down the doors in search of copyright-infringing material after the explosion of peer- to-peer file-sharing applications.

Thanks to file-sharing, instant messaging and wireless networks, there are more ways in and out of your organisation than ever before. Viruses can find their way in to wreak havoc while business-sensitive data is exposed to the world. Instant messaging makes archiving all electronic communications almost impossible.

The technological needs of various organisations and industries mean there is no one appropriate use policy applicable across all workplaces, says Australian Chamber of Commerce and Industry workplace policy director Peter Anderson.

"As long as an employer makes it clear to an employee when they start their new job that personal emails may be monitored, then the monitoring of personal emails at the workplace is appropriate," Anderson says. "The business has a right to expect its own resources are not to be used for the personal gain of employees."

Employee concerns about filtering and blocking are fading, according to filtering software company SurfControl.

A study by the Social Justice Social Change Research Centre at the University of Western Sydney, commissioned by SurfControl, found that decisions about what to filter and what constituted acceptable behaviour was more important to employees than whether filtering should occur. This contrasts with a similar study conducted for SurfControl 18 months ago, which found the main debate was whether or not filtering should occur.

But while workers may be resigned to their every move being watched, who is watching the watchers?
http://www.theage.com.au/articles/20...663722287.html

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Time To Give Up On Copyright Law?
Ed Quillen

Although I own hundreds of copyrights, I'm beginning to think that society would be best served if copyright laws were repealed.

At heart, there's nothing complicated about a copyright. If you create something (literature, music, art) on your own time, you have the right to determine whether it is reproduced, and you can charge for it. That "right to copy" is a copyright, and you can lease it or sell it. Copyrights are valid for a limited time, and after that, the work passes into the public domain, where anyone can use it.

The first complication is that even if you're the creator, you might not own the copyright. If you create your work on company time as part of your job, then it's a "work for hire," and the company owns the copyright. Or you might sign a contract that assigns the copyright to the company.

It's usually clear what's a "work for hire" and what isn't, although some companies try to make it unclear. For instance, I used to contribute occasional articles, including some home-rolled software, to various computer magazines owned by Ziff-Davis.

On the back of any check they sent, above the endorsement line, there was exceedingly fine print which said, in essence, that your endorsement constituted the assignment of all rights to Ziff-Davis - which meant that at some point, Z-D could have charged me to use my own software.

Fortunately, the local bank tellers knew how to stamp the endorsement with something like "For Deposit to the Credit of the Account of the Payee," so my signature never appeared under their "contract."

To move on, there has been much in the news lately about how recording companies are pursuing people who share music files on their computers. One reason the companies do this, they say, is to make sure the recording artists get paid.

That's got to be a joke. I have never read a good word about Allen Klein, the New York accountant who once managed both the Beatles and the Rolling Stones. Note, though, that Klein got to that level because he was very good at auditing the books of record companies and discovering millions of dollars in unpaid royalties that he would then secure for his clients. That Klein flourished demonstrates that record companies don't make a priority out of paying their artists.

Then there's the hypocrisy of the Walt Disney Co. Disney has made many millions by adapting old works that had passed into the public domain: "Pinocchio," "Cinderella," "Alice in Wonderland," to name a few.

But Mickey Mouse's copyright was supposed to expire this year, and Disney sure didn't want that rodent loose in the public domain. So the Disney folks and their allies donated $6.5 million to congressional campaigns a few years ago, and the result was the Sonny Bono Copyright Term Extension Act. Mickey remains Disney property until 2023, though the bagmen will doubtless purchase another extension before that.

It's fine with Disney if Lewis Carroll's work goes into the public domain to be used by Disney, but Disney will get the law changed before its critters reach the public domain.

And there's computer software. I use Linux, which is generally covered by something called a "copyleft" or a "General Public License," agreed to by the creator of the software.

Under the GPL, you are free to copy programs, and sell or give them away if you want. However, you have to include the source code, and if you or others modify those programs, the modifications are also covered under the GPL. You can't take somebody else's work, tweak it and claim ownership.

That seems fair and sensible. So naturally, somebody is trying to wreck it. A Utah software firm, the SCO Group, has gone to court against IBM, along with Linux users like me (though I haven't been served yet).

SCO argues that the federal copyright law for computer software allows users to make only a single backup copy, and it supersedes the GPL. That is, no matter what the intentions of the creator were concerning distribution of his work, he can't allow you to give a copy of it to a friend.

SCO has even engaged a legal heavyweight, the law firm of Boies, Schiller & Flexner. It's headed by David Boies, who represented Al Gore in Florida and the U.S. in the Microsoft anti-trust prosecution. But IBM can afford some big-league legal talent, and besides, the Boies record isn't that good - George Bush is president, and Microsoft still has more than 90 percent of the market.

So there's hope that American copyright law will allow creators to control how their work is distributed. But any law that can be twisted the SCO way, enforced the RIAA way, extended the Disney way, or abused the Ziff-Davis way is a law that ought to be repealed. All it does is enrich lawyers and big companies, and they'd probably get along just fine without it.
http://www.denverpost.com/Stories/0,...77963,00.html#

Until next week,

- js.

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Current Week In Review.

Recent WIRs -

http://www.p2p-zone.com/underground/...threadid=17325 August 23rd
http://www.p2p-zone.com/underground/...threadid=17265 August 16th
http://www.p2p-zone.com/underground/...threadid=17176 August 9th
http://www.p2p-zone.com/underground/...threadid=17108 August 2nd

Jack Spratts’ Week In Review is published every Friday. Please submit letters, articles, and press releases in plain text English to jackspratts at lycos.com. Include contact info. Submission deadlines are Wednesdays @ 1700 UTC.

multi · 28-08-03, 11:23 PM

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

there is stuff i nave bunrd about 30 months old..i wonder is it still works?...

mega news edition ..good work jack..

28-08-03, 09:47 PM	#1
JackSpratts Join Date: May 2001 Location: New England Posts: 10,017	Peer-To-Peer News - The Week In Review – August 30th, '03 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

28-08-03, 11:23 PM	#3
multi Thanks for being with arse Join Date: Jan 2002 Location: The other side of the world Posts: 10,343	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 there is stuff i nave bunrd about 30 months old..i wonder is it still works?... mega news edition ..good work jack.. __________________ i beat the internet - the end boss is hard Secret Temple of It

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