|28-03-07, 08:49 AM||#1|
Join Date: May 2001
Location: New England
Peer-To-Peer News - The Week In Review - March 31st, '07
"Though Viacom seems unable to determine what constitutes infringing content, its lawyers believe that we should have the responsibility and ability to do it for them." – Michael Kwun
"Had you told me five years ago that organized crime would control 1 out of every 10 home machines on the Internet, I would have not have believed that. And yet we are in an era where this is something that is happening." – Dave Dagon
"I drive a city bus. It would be nice to see her plastered on the side of it." – Geraldine Champion
"Stop putting tomorrow's fishwrap behind paywalls. Writers hate it. Readers hate it." – Dave Winer
"In the future, every educated person will be a journalist." – Dave Winer
"I simply can not believe that I updated to a new computer and put windows Vista on it to find that it's not even capable of moving and deleting files in an efficient manner. Microsoft must be kidding! The most basic of features that I use all the time is a slow train wreck." – hac5x3, poster on MS TechNet Vista forum
"Because of the slow move/delete/copy I'm thinking of going back to XP .......I downloaded a 1,8 Gb file over the internet to my D drive. Moving the tmp file from C to D took three times longer than downloading the file on a 6Mbit internet connection !!" – BadBlock, poster on MS TechNet Vista forum
"It is no fun becoming a litigation target as the result of your clients' widely-discredited tactics." – Merl Ledford III
"The only way the RIAA can get that information is if the RIAA takes us to court to get those names." – John Diamond
"They want to bully universities into exposing students and also bully students directly into signing onto a discount. There's no legal process and that's the end of the story." – Jon Ippolito
"It could be a pretty sad world where money alone buys the ears and anybody that can't afford it, can't get proper placement, is pushed off to the ghettos." – Derek Sivers
"Don't fear the RIAAper." – ASU protester sign
"Download like it's 1999." – ASU protester sign
"I’m, like, accorded 15 minutes, and I want to take it while I still look hot." – Trisha Henson
March 31st, 2007
New EU Piracy Penalties to Exclude Personal File-Sharing
Intellectual Property Rights: Criminal Sanctions to Fight Piracy and Counterfeiting
The first EU directive aiming at harmonising national criminal law was backed by the Legal Affairs' committee, when it adopted on Tuesday a first-reading report on a legislation imposing criminal sanctions for the infringement of intellectual property rights. The issue now goes before the April plenary session.
Nicola Zingaretti (PES, IT), Parliament's rapporteur, said: "We are turning a new page: this is the first directive where criminal law is included. […] To harmonise criminal codes will be a radical new thing". If approved by Parliament and the Council, the proposed directive would oblige all Member States to consider as a criminal offence all intentional infringements of an intellectual property right carried out on a commercial scale. The text proposes, as a deterrent, measures ranging from fines to imprisonment, according to the gravity of the crime.
Members of the Legal Affairs' committee backed the overall aim of the Commission proposal, while amending some of its provisions. They excluded patent rights from the scope of the Directive, and decided that criminal sanctions should only apply to those infringements deliberately carried out to obtain a commercial advantage. Piracy committed by private users for personal, non-profit purposes are therefore also excluded. (Emphasis mine. – Jack)
The report aims to ensure that national judicial authorities will always be able to impose sufficiently serious penalties by setting out minimum levels for the upper limits on punishments imposed by national law. In cases of serious crimes committed by a criminal organisation, the maximum penalty must be at least €300 000 and/or four years' imprisonment. The same applies where the offences carry a health or safety risk. For less serious infringements, the maximum penalties should include criminal and civil fines of at least €100 000. In some cases, remedies can include the seizure and destruction of counterfeited goods.
A series of provisions on investigations was also approved. Member States are asked to ensure that the possibility of initiating investigations is not dependent on a formal accusation, at least when acts were committed in the territory of the Member State. Moreover, EU countries, if the directive is adopted, would have to allow holders of violated intellectual property rights to assist investigations undertaken by joint investigation teams.
The proposed directive reflects the Commission's interpretation of the European Court of Justice’s judgment of 13 September 2005. According to the Commission, this ruling allows for measures under the Community method to insist on criminal sanctions, when these are required for the effective implementation of Community law. This view is contested by those who believe criminal law cannot be a competence of the Community - but amendments rejecting the entire proposal on this basis were defeated in the vote.
Procedure: codecision, first reading -- Vote in plenary: April, Strasbourg
Committee on Legal Affairs
Chair : Giuseppe Gargani (EPP-ED, IT)
You’re Caught Downloading “Dream Pinball”, Settle Now or Go Broke
Having outstayed its welcome in Germany, a company is bringing its legal strategy against file-sharers to the UK. Its first targets are 500 P2P users who illegally distributed a game according to the company, even though many of the victims never even heard of the game in question. All Filesharers receive a letter in which they are urged to settle the case for a relatively small sum of money. So who are the accusers and what quality of evidence do they hold?
Since early March 2007, many internet forums have been buzzing with news of users receiving letters from UK law firm Davenport Lyons, alleging that they have illegally distributed (uploaded) the ‘Dream Pinball 3D’ game from German company Zuxxez Entertainment. The letters, which were sent out to 500 alleged file-sharers, demand a minimum of £340 ($667) to avoid being taken to court and claimed potential costs of “tens of thousands of pounds”. Most of the alleged filesharers never even heard of the pinball game, or never had the IP-address that was listed in the letter. However, some already report to have paid the settlement money because they don’t want any legal trouble, it almost sounds like a perfect scam.
The letters state:
"Our client has retained forensic computer analysts to search for and identify internet addresses from which their games are being made available on so called "peer to peer" (P2P) internet sites for the purposes of making them available for download by third parties without our client's consent or licence"
Note that the letters are not addressed to an individual, just ‘Dear sir or madam’ - this proves that the ‘forensic’ process cannot correctly identify an alleged infringer behind an IP address.
"Our client is in possession of compelling evidence that on the following date and time 15.09.2006 12:15:22 [made up date/time for illustration purposes] (captured in the German time zone), the Game was made available from the internet protocol (or IP) address XXX.XXX.XXX.XX specifically for the purpose of downloading by third parties. Pursuant to a High Court Order, the internet service provider XXXXXXXXXXXXX identified you as the subscriber associated with that IP address at the time in question".
TorrentFreak has seen evidence that suggests alleged infringers’ IP addresses were being collected within hours of the game appearing on the eDonkey network. Unconfirmed reports even suggest that the delay could be measured in minutes.
So where exactly does this ‘compelling evidence’ come from, who are these ‘forensic computer analysts’ and why does the letter speak of evidence gathered in the German time zone? A little background;
Back in 2005, it became evident that Zuxxez Entertainment had decided to take a very aggressive course of action against Germans accused of sharing their game ‘Earth 2160′ on the eDonkey network by employing a law firm to file 12,000 claims with the state prosecutor’s office in Karlsruhe (the home town of Zuxxez). In the German case the settlement were also relatively low, giving the alleged filesharers an easy way out, instead of taking it to court.
The ISPs in Germany soon got tired of all these ungrounded, and seemingly random infringement notices, and they soon stopped responding to the claims Zuxxez made until there was some hard evidence against their customers. Zuxxez realized then decided that they couldn’t make any easy money in Germany anymore and moved to the UK, still using the same strategy.
In each claim, the law firm shows the software alleged to have been uploaded (in the UK it’s the Pinball game), the IP address of the alleged infringer plus the users emule/edonkey user ID and a timestamp. So who collated this information? Enter Logistep, a Swiss anti-piracy company employed by Zuxxez to track down eMule users they claim were sharing its software, gather information and use it to gain Court Orders to force ISP’s to give up the names and addresses connected to the accused IP address. In the UK, it’s believed that up to 18 ISP’s were presented with Court Orders to force them to reveal users personal details.
Although Zuxxez and Davenport Lyons don’t openly admit to using Logistep in these UK cases, it seems more than likely, given that information on the Internet Piracy Portal states that Logistep are a partner of Schutt, Waetke (the law firm dealing with the German cases) and also Davenport Lyons in the UK. Of interest is that Zuxxez Entertainment has its home in Karlsruhe, Germany and so does Logistep, even though the company appears to be registered in Switzerland.
In each UK case it’s likely that Davenport Lyons will have obtained what is known as a Norwich Pharmacal Order, which relates to the obtaining of information regarding infringements from parties who may not themselves be involved in the infringement, i.e the ISP. In the original Norwich Pharmacal Co and Others v Customs & Excise Commissioners case in 1973/74, it was ruled that a party who became even innocently involved in someone else’s wrong doing, was under obligation to provide the injured party with information to identify the wrong doer.
Apparently, such an order should not be granted where it’s clear that the plaintiff is ‘fishing’ (phishing) for information and is attempting to discover something that will form the basis of a court action. As the law firm is very obviously making a ‘phishing’ attempt to obtain the name of a possible infringer other than the account holder, this should be something that anyone accused should take up with their lawyer.
Davenport Lyons imply that the evidence against alleged infringers is so good that the fact that a court order was granted is likely to be enough to prove guilt. This is seriously up for debate. In Germany, a criminal investigator has stated that Logistep refuses to reveal how it gathers information against alleged infringers so it becomes impossible to confirm that the data it collects is correct. In my opinion, it is of paramount importance that Logistep is required to reveal how it gathers such evidence in order to prove its validity to a court, otherwise it’s possible that there would be errors, leading to the wrong people being accused and/or convicted. A UK Government audited and approved system could give their case credibility but until such an audit takes place, I don’t see how their systems can be trusted.
According to a computer forensics expert, the evidence held is likely to be inconclusive and the digital equivalent of Hearsay. Visitors to this thread will note that the expert seems to be offering his services on a no-win, no-fee basis. If his support means that the accused don’t have to go to Court, then he says there is nothing to pay. Any fees will be taken from costs awarded should the accused win their cases. We cannot endorse this guy but it’s certainly worth a look. There is an interesting post about other legal issues here.
Several people accused of uploading Dream Pinball are concerned that they may have an unsecured wireless network and that unknown third-parties may have committed an offence without their knowledge. Davenport Lyons have already responded to at least one person who put this scenario to them;
“There has already been a ruling in the German courts confirming that a wireless network is the responsibility of its owner and any consequences of failing to secure the network fall upon the owner of it, irrespective of who carried out the illegal activity”.
There was indeed a decision in the regional court of Hamburg on 27th July 2006 (ref 308 O 407/06) which ruled that the owner of an internet connection is responsible for infringements which take place on it. Presumably, if there had been a case under relevant UK law, Davenport Lyons would have mentioned it, rather than having to resort to referencing a German case.
So it appears that in the UK it may remain uncertain as to whether an account holder is liable for the actions of others on his internet connection. It’s an issue for the Court to decide, not a law firm or anti-piracy company. Indeed, a British Court may decide that the person who has had their wireless network hacked, bandwidth stolen, connection used illegally and reputation damaged, is actually a victim of a crime themselves and if companies like Logistep have the ability to identify the criminal who did this, then surely they have a legal obligation to do so. Anyone who feels they are the victim of this fraud should present this scenario to their lawyer.
In addition to the ‘uploading’ claim, one of the claims in the letter relates to the illegal copying of the game to the hard drive. Even if someone in the UK is found responsible for what someone does on their internet connection, surely they cannot be guilty of copying the game to the hard drive if this was done by an unauthorised user accessing an unsecured wireless LAN, on a PC outside of their control?
In Germany the district court in Mannheim denied Schutt-Waetke any fees they asked from a defendant, claiming the firm had already filed over 3700 similar cases and it was hard to see where such automated proceedings would require extensive work justifying any fees. A Court may or may not decide that should be the case here.
Dirk Hassinger, the sales director at Zuxxez said he had tried to find a law firm prepared to charge low fees because he didn’t want to “bankrupt” file sharers. On face value, this seems like a considerate thing to do, until you examine some of the wording in the Davenport Lyons letter;
“In the event that you were not able to pay whatever sums the court may direct, our client would have no option but to take steps to enforce the debt against your property”
So Zuxxez don’t want to bankrupt people but are quite willing to threaten their family home. Very considerate. It’s more likely that Zuxxez make the settlement ‘affordable’ to make sure defendants choose not to go to court. If going to court means companies like Logistep are forced to reveal their methods and they prove suspect, the whole process could fall to its knees. If someone is proven unresponsible for the actions of a wireless hacker, the whole process could fall to its knees. Obviously this is the last thing that Zexxez, Logistep or Davenport Lyons want.
Finally, having battered the German legal system with their proceedings and taking steps to do the same in the UK, it appears Italy is also becoming a target . Ominously, Logistep also have legal partners in Dubai, Israel, Austria, Poland and the USA.
The Corporate Enemies of File-Sharers list just got longer.
New England Grit
UMS Refuses to Hand Student Info to RIAA
The University of Maine System has refused a request from the Recording Industry Association of America to produce names of students who allegedly downloaded copyrighted materials.
The system has also opted not to forward the RIAA's pre-litigation letters offering settlements to those students, although the schools those students attend will inform their students of the letters and give them a chance to pick up the letters if they so choose.
At the University of Maine, students with pending RIAA lawsuits were told on Friday.
"It's not the university's role to, in effect, serve papers on our students for another party," John Diamond, spokesman for the university system, said of the decision.
At the same time, the university has ensured those students get a chance to settle. "We want our students to be aware of it, but we do not feel that it is our obligation to be the arm of the RIAA beyond simply sharing the information," Diamond said.
On Wednesday, the RIAA sent 27 letters to the UMS to forward to its students offering settlements before their alleged music piracy could go to court. The letters direct students to the Web site http://www.p2plawsuits.com, where students can admit guilt and settle for an amount far lower than the RIAA could get in court.
Of the 27 letters, 14 went to UMaine students. The remaining 13 went to students at every other UMS school except Farmington and Augusta.
The RIAA sent the system only the numerical Internet addresses of students the industry has accused of copyright violations. They asked the UMS to provide the names of those students.
Diamond said the RIAA's request for student information asks the system to violate the Family Educational Rights and Privacy Act, which bars the UMS from divulging information not considered public.
The Internet addresses the university assigns to students accessing the network is not public. Despite this, some institutions have given up their students' names to avoid court fees.
"The only way the RIAA can get that information is if the RIAA takes us to court to get those names," Diamond said.
According to Jon Ippolito, a UMaine new media professor and associate curator of media arts at the Guggenheim Museum, the university has taken a principled stance.
"[The RIAA] have so many lawyers that they can afford to send frivolous subpoenas right and left, and the mere threat to do so has caused some universities to cave right away," said Ippolito, an expert on digital media.
On Thursday, Ippolito sent a letter to the university system urging administrators not to reveal students' identities to the RIAA.
Ippolito said the practice of subpoenaing universities won't necessarily hold water in court, and was critical of the RIAA's newest tactics with colleges, a policy he called "mafia-like."
"They want to bully universities into exposing students and also bully students directly into signing onto a discount," Ippolito said. "There's no legal process and that's the end of the story."
According to the Digital Millennium Copyright Act, a 1998 bill meant to protect copyrighted material in the digital age, the university is not responsible for copyright violations on its network. The university system needs only to make sure students delete any copyrighted works found by an outside agency such as the RIAA.
Students Largely Ignore RIAA Instant Settlement Offers
While the RIAA is touting a settlement percentage north of 25 percent with its recent campaign against file sharing at US colleges and universities, the fact remains that the overwhelming majority of students are shunning the insta-settlement approach. According to the RIAA, some 116 students have used their new web site to settle copyright infringement claims, but that means that another 284, or 71 percent of students contacted through the program aren't taking the easy way out. At least not yet.
The average settlement amount offered by the RIAA is about $3,000, so this latest pre-litigation strategy has drummed up at least $350,000 in revenue by our estimate. That's no small amount of money, but considering that music sales this quarter were nearly $100 million, one wonders if the haul from this strategy is worth the public image problems that it's deepening. Then again, public image hasn't been something that appears to concern the RIAA, but with music sales on the decline, perhaps they ought to be taking this more seriously.
A student who received a pre-litigation letter told Ars that he refused to engage their offer because they offer zero proof of what is alleged. "It's like receiving blackmail. 'We know what you did, pay us' is the message, but they don't really know me or what I have done," he wrote. The student wishes to remain anonymous.
He knows that students who ignore the pre-litigation letters are just asking the RIAA to pursue them more, but he hopes that when the RIAA is actually faced with having to produce evidence that they'll simply come up short. The current approach by the RIAA is to simply tell students that each song shared is a $750 violation, so one's fine is often calculated based on the number of songs the RIAA says that they've shared. Yet the RIAA offers no proof of their claims, while sometimes trying to make students feel like they're getting a deal.
Despite the low response, the RIAA believes that the program is going well, and they have sent another 405 pre-litigation letters to students at 23 universities. "This is not our preferred course, but we hope that students will understand the consequences of stealing music and that our partners in the college community will appreciate the proactive role they can play," said Cary Sherman, President of the RIAA, in a statement.
According to the Associated Press, one student received a letter demanding $590,000 in payment. Such letters are apparently only sent to egregious file sharers, for the average settlement rarely tops $5,000. After all, the RIAA wants to offer a good deal, you see.
Industry Group Says Piracy Students are Settling
Recording Industry Association of America filed about 18,000 lawsuits
A recording industry group that has been offering settlements to college students suspected of sharing music online says more than a quarter of the alleged music pirates have accepted the offer.
The Recording Industry Association of America sent letters offering discounted settlements to 400 computer users at 13 universities in late February. Another batch was sent out this week.
Association spokesman Jonathan Lamy said Friday that, so far, 116 settlements were reached after the first round of letters went out.
Those letters targeted students at Arizona State University; Marshall University; North Carolina State University; North Dakota State University; Northern Illinois University; Ohio University; Syracuse University; University of Massachusetts, Amherst; University of Nebraska- Lincoln; University of South Florida; University of Southern California; University of Tennessee, Knoxville; and University of Texas, Austin.
Lamy would not specify which of the schools the 116 students attend.
As part of its ongoing copyright crackdown, the association has sued about 18,000 computer users nationwide since September 2003. The figure includes about 1,000 university students.
The lawsuits were initially filed against "John Doe" defendants, based on their Internet addresses. Many are accused of downloading music over university Internet services.
After filing a lawsuit, recording industry lawyers work through the courts to learn the name of the defendant.
In the association's latest effort to curb music piracy, colleges are given letters to forward to students suspected of music piracy, Lamy said. Students are urged to contact the association to broker a settlement before a lawsuit is filed.
"Part of the rationale for this new program is to offer students a chance to settle early and with no public mark on their record," he said.
The association has declined requests to provide specific details about the settlements.
A letter to one Ohio University student told her that she distributed 787 audio files, putting her total minimum potential liability at more than $590,000. The minimum damages under the law is $750 for each copyright recording that had been shared, the letter said.
Patrick McGee, an attorney Ohio University arranged to meet with its students, has said $3,000 is the standard settlement offer, though cases have settled for as much as $5,000.
The second wave of letters the association sent out Wednesday targeted 405 students at 23 colleges. The University of Nebraska-Lincoln was the only school whose students — 61 in all — were targeted in both rounds of letters.
UNL spokeswoman Kelly Bartling said the university was having problems identifying some of the targeted students because the university only stores computer usage records for 31 days.
Thirteen of the 36 students sent letters in February have been identified, she said, and 19 of the 25 sent letters this week were.
Bartling said Friday that the students were being referred to the university's student legal services for advice, but she didn't know how many have accepted a settlement.
Lamy said UNL's records-keeping policy is an anomaly among universities the association is dealing with.
"Reasonable data retention policies are essential," he said. "Lawsuits for music theft are just one example, but there are a host of other crimes regularly perpetrated on computer networks.
"As services providers, one would think universities would understand the need to retain these records."
The university isn't planning to change the records policy, UNL network security analyst Zac Reimer said earlier this week. That's partly because the association probably will begin asking for names in the same months the file-sharing occurred, he said.
Last fall, UNL began a public relations campaign in which students were advised the practice was illegal and could lead to university disciplinary action.
The school has a three strikes policy: First, a notice to music pirates they are violating university policy, then loss of Internet access, and finally, a visit to the school's disciplinary board.
Bill Would Hand Colleges Cash For Anti-Piracy
Earlier this month U.S. Rep. Ric Keller warned colleges and universities if they didn't "get serious" about curbing peer-to-peer (P2P) music and movie theft on their campuses, "the hammer is coming." First, though, comes cash.
The Florida Republican introduced legislation Tuesday to allow schools to apply for federal grants to help purchase anti-piracy systems. The Curb Illegal Downloading on College Campuses Act of 2007 (H.R. 1689) would expand the allowable use of funds by the Department of Education to include technology solutions to piracy.
"Illegal downloading of music and movies on college campuses is harming their computer networks by consuming a huge amount of education-related bandwidth and exposing them to viruses," Keller said in a statement.
Keller's proposal comes as academia is taking increased fire over its efforts to curb the piracy that Congress and the music industry claims is rampant. Despite years of lawsuits targeting campus pirates, more than half of all college students still download music and movies illegally, according to the University of Richmond's Intellectual Property Institute.
At House hearing on March 8, John Vaughn, executive vice president of the Association of American Universities, told lawmakers schools face difficult challenges in curbing the theft rate, not the least of which is cost. He said the cost to implement one proposed filtering technology would be over $1 million initially, with annual licensing fees of approximately $250,000.
"Such costs represent a serious financial challenge for colleges and universities, particularly at a time when we are trying to address the issue of rising costs of attendance for students," Vaughn said.
A 2005 EDUCAUSE survey indicated that 73 percent of institutions surveyed shape network bandwidth by type of traffic to limit possible illegal P2P activity. Vaughn said this type of filtering is more effective in identifying large movie files than smaller music files.
"My legislation encourages colleges to be part of the solution by allowing them to apply for federal grants to help purchase innovative technologies that will stem piracy on their computer networks," Keller said.
Bryan Malenius, Keller's chief of staff, told internetnews.com the bill allows Congress to "put its money where its mouth is," laying the groundwork for schools to afford the pricey filtering technology."[Piracy] is just plain wrong. It's flat out wrong," Malenius said. "There are so many sites out there when folks can download legally."
UCLA Chief Technology Officer Jim Davis, though, told Congress legal download services are not a panacea for online piracy. Davis said students complain that legal services are limited in content, dependent on specific vendors or operating systems and the tunes are often non-transferable to portable players.
"Such concerns are not trivial to students. As creators of intellectual property ourselves, we understand the complexity in business models, particularly in a nascent area," he said. "But we also feel there are not good answers to give, because the business models are not yet viable."
The RIAA Came to ASU Today
A few days ago, I received an e-mail from ASU about the RIAA coming to campus to give a talk about copyright and the state of the music industry as part of ASU's Security Awareness Week. I went this morning, and it was fairly interesting. The guy, whose name I didn't really catch, is the Senior Vice President of Technology for the RIAA... I believe it was David something. [Correction: the guy's name is David Hughes.] Anyway, his schpiel (sp?) was noteworthy. He made some good points and he made some really ridiculous points.
I got there about 10-15 minutes early and there were 2 guys running the video/audio recording equipment and two other guys waiting for the event to start. One guy was wearing an Invisible Children shirt. It turns out he's the president of the Young Democrats club, or something to that effect. The turnout was looking quite bleak until the event was just about to start. Students started coming in, slowly, but surely. About 20 minutes into the event, the room was about 3/4 full.
David, if that is his real name, started talking about the history of the music industry, the way things work with record companies, etc. It was a fairly decent background and he was quite casual, even throwing out a few profanities, possibly to look "cool" and "laid back." He went on about how record companies need money to do "research and development," and that they're essentially "venture capitalists" who will sign somewhere around 20 new artists per season, lose money on 17 of them, break even on 2, and make a lot of money on 1. It's that 1 artist, the Britneys and Jessicas, that make a ton of guaranteed money that allows the record company to sign less successful artists. He mentioned that many of these artists end up making a ton of money off the record company with big advances and poor sales, something I questioned him about regarding recouping costs. He also mentioned that he estimates 50% of college students actively steal music, to which he got some pointed retaliatory remarks, and said that he had some studies to back his point up. Basically, he wanted to tell us that we [college students] used to be the recording industry's best customer and now we're the worst enemy. I guess that's what happens when you suddenly lose your monopoly in an industry.
Shortly thereafter, excitement was thrust upon us when...
Four people, likely students, walked into the back of the room, all holding cardboard signs. One sign had a scythe attached and said, "Don't fear the RIAAper." Another guy had no pants on and had a sign that said, "The RIAA sued the pants off me." Another girl had a sign that said, "Download like it's 1999." And the last girl had some spare change in her hand that was to go to "Metallica's retirement fund." It was quite funny and David reacted fairly well, laughing loudly and wishing he had his camera. After they had a brief debate, none of which was captured by a microphone, David essentially kicked them out and had some (defensible and understandably) snide remarks for them. As they were walking out, they said, "Some people still believe that sharing means caring.'"
After David had started speaking again, it was apparent that the audience, most of which were students, were growing antsy and needed to get their anti-RIAA questions off their backs. Few people asked particularly good questions, unfortunately. One guy even mentioned, "I only make enough money to buy one CD per month. What am I supposed to do?" to which I replied, "You're justifying your stealing," and David had a few things to say as well. That sparked the series of mostly-immature, folly-that-comes-with-youth questions including one guy saying, "You keep saying 'stealing' when you should be saying 'copyright infringement.'"
Anyway, the presentation left me feeling irritated because of two things:
David's argument was basically that we should feel sorry for the fact that his business is quickly becoming irrelevant and they don't know how to change. It's expensive to find new artists and they're releasing bad music because they know it'll sell and it's expensive to change a business model. So, instead, they're going to use what he calls "Education through litigation," which disgusted me and other people in the room. Basically, it's our fault that the record companies sell music from Britney Spears and it's our fault that Wal-Mart is the #1 music retailer in the country. We've forced the "lowest common denominator" on ourselves. And if the RIAA can't find new talent because of us, then "that's a shame."
Many people who steal music have an immature perspective about stealing music and don't realize foolish they sound to real adults. The RIAA isn't bad because people want to steal music! The RIAA is bad because they have bad business practices! They sue stroke victims, 10-year-old children, people who don't own computers, and make many lives a living hell. They intimidate people without substantive proof, they bully ISPs and universities to hand over network traffic data, and they don't care about the customer. They treat the customer like she's a thief or criminal. It's implied that nearly everyone college-age is a pirate. At least, that's the way I see it. Like my friend said, you don't go to the gas station and steal gas, even when you hate the oil companies and refineries. Why? Because there's accountability... you're on camera, they'll track you down, etc. But, when it comes down to something like music, it's socially acceptable to steal music. There's definitely a supposed-anonymity and a disconnect of ethics. Also, college students are total moral relativists, as my friend put it, and there's no way the RIAA is going to convince them not to steal.
I was glad about a few things, though. The RIAA is well-aware that they are becoming irrelevant. They are also aware that nobody likes them, but they don't care about that. Someone also brought up the fact that the RIAA was recently voted as being the "worst company in America", to which David responded with some laughs and a quip about how they've been "beating Exxon-Mobil for years" in that arena. Another guy also brought up the fact that the RIAA is losing credibility with its customer base by suing everyone and their grandmother.
Another thing David brought up that was interesting is Steve Jobs' open letter to the music industry about removing DRM from electronic sales of digital media. David brought up a meeting and some e-mail exchanges he's had with Jobs and called Jobs a "hypocrite." When asked if Jobs would be willing to sell Pixar movies through iTunes without DRM and DVDs without CSS encryption, there was no response. When asked about interoperability of downloads from the iTMS, Jobs responded, "Ask me again when we have less than 50% of the market share." He thinks Jobs posted that letter to get the attention off of him and the bad press he'd been getting regarding Norway's tying laws, which I think was a really good point that most of the tech blogs has missed. Jobs knows exactly what he's doing and he's one of the world's most wealthy businesspeople for a reason.
Someone asked about the out of court settlements that they're offering to people who get the DMCA notices in the mail. Apparently, they think it's a very nice way to settle things and doesn't skirt the law by any means. In fact, it can be considered "beneficial" to the John Doe being sued in that if John is trying to get a job with the FBI, a copyright infringment settlement never goes on his record. So, it's actually a "good thing" (my words, not his). Personally, I think it's ridiculous because people can be threatened with a lawsuit by the RIAA without the RIAA having any proof of the person actually stealing. But, whatever... people seem to be settling out of court all the time now.
What the RIAA needs to do is cope with downsizing, realize that some aspects of their industry are going to fail, they no longer have a monopoly, there are better distribution and business models, and work around the fact that "piracy will always exist" (as David put it). His argument is that in the 1980s/1990s, somewhere around 80% of people who had cable were getting it for free through illegal, "illegitimate" channels. That's not how the industry is anymore and the record companies want it the same way. Unfortunately, this is a bad analogy because there are no reasonably-cheap alternatives to getting cable. In my area, we have a choice of going through Cox Cable, Qwest digital cable, or some satellite TV. And they all cost about-the-same. With the music industry, you can release your own music at little to no cost (as I did with my newest album, Within) and the distribution/business model is completely different. If they truly are venture capitalists, then they'd realize that there are other ways to earn money. They're just too comfortable with the monopoly they used to have that they won't use their venture capitalism to try a different model.
David kept going on about "basic economics" when it comes to the prices of CDs and whatnot. Unfortunately, his understanding of "basic economics" stops there. The demand for music has changed and the supply needs to change. They must reform or die. And no one will care if they die because artists will find another way to distribute their music. The RIAA sees their way as the only way to do business. That's the way it's been for the last 50 years and that's the way they want to keep it. Musicians never spoke poorly about the record companies 50 years ago because no one wanted to bite the hand that fed them. Now, the RIAA is unnecessary for success and the world is ushering change. Whether the RIAA will survive or not, we won't know for another 20-30 years, likely. Especially considering the rate at which copyright law changes.
The entire presentation was filmed and will supposedly be released on iTunes U and ASU's security website. There was a microphone going around for people to use if they had questions, but more than half the time, the microphone didn't make it to the student, so I'm sure it'll be hard to hear the questions being asked. Nevertheless, a few other students were recording, including a woman who recorded on her camcorder for Geek Method's podcast. I don't think the official ASU recording picked up the protestors, but I know the Geek Method recording did, so your best bet is to stop there when it's available.
Why the RIAA Doesn't Want Defendants Exonerated
Litigation is always a risky endeavor. One can never be entirely sure how a judge will interpret case law and rule, and should the case proceed to trial, juries are even harder to read. Filing over a thousand lawsuits, therefore, is even riskier. Should a handful of rulings go the wrong way, it could jeopardize the numerous other cases currently in the system.
This is a dilemma faced by the RIAA in its war against suspected file sharers. The hundreds of cases filed have all proceeded along the same lines, with which most of us are all too familiar. The music industry's exit strategy from cases it deems undesirable to pursue—due to mistaken identity, poor likelihood of winning, or other factors—has been just as consistent. The record labels file for a dismissal without prejudice and everybody goes their own ways, footing their own legal bills, and no one is officially cleared of wrong-doing. Recent events may be casting a shadow over the wisdom of the RIAA's strategy.
A new tactic
One such event is yesterday's news from the world of file-sharing litigation. Faced with the prospect of having to pay attorneys' fees in cases it has no interest in pursuing, the RIAA appears to be trying a new tactic. In the case of Warner Bros. v. Tallie Stubbs, the record labels have said that they "now covenant not to pursue claims against Defendant" for copyright infringement and that the defendant's counterclaim should be dismissed.
Tallie Stubbs was sued by the RIAA last year after the trade group's investigators traced a Kazaa shared folder back to her with the help of an ISP. After what it described as "further investigation," the record labels apparently concluded that they had either misidentified her or didn't have sufficient evidence to proceed with the case, and decided to move for dismissal without prejudice. When contacted by Ars and asked the reasons behind the dismissal, the RIAA declined to comment.
But Stubbs wanted something more than a mere dismissal: complete exoneration. She filed a counterclaim seeking a declaratory judgment that she had not infringed on the record labels' copyrights. Earlier this month, Judge Vicki Miles-LaGrange split the difference. She granted the plaintiffs' motion to dismiss without prejudice while denying their motion to dismiss the counterclaim, ruling that "there are independent bases for subject matter jurisdiction over Defendant's declaratory judgment counterclaim." In other words, the defendant can seek to have her name cleared of any wrongdoing, regardless of the plaintiff's decision to dismiss.
By promising not to sue Stubbs again and keeping the dismissal without prejudice on the books, RIAA hopes to avoid the same fate it met in Capitol v. Foster (Debbie Foster is being represented by the same attorney as Tallie Stubbs) and faces in Elektra v. Santangelo: a ruling that the defendant is the prevailing party and therefore entitled to attorneys' fees. In Warner v. Stubbs, the labels are arguing that since they are promising never to sue her for infringement again, there is no need to continue the legal wrangling and the judge should therefore dismiss Stubbs' counterclaim. In other words, no harm, no foul.
In choosing this course of action, the RIAA is taking a calculated risk. Dismissing a case without prejudice while promising not to bring further legal action could be interpreted as the functional equivalent of a dismissal with prejudice. As a result, the judge may very well decide to dismiss the case with prejudice after all. She could also then dismiss Stubbs' counterclaim, as a dismissal with prejudice would mean that she is the prevailing party and leave the labels vulnerable to an attorneys' fees awards.
Last week, we noted that the RIAA found itself in a difficult situation with Elektra v. Santangelo because the judge had ruled that Patti Santangelo was entitled to a shot at vindication, either via trial or a dismissal with prejudice. If Judge Miles-LaGrange issues a ruling exonerating Tallie Stubbs of infringement, it would be a worrisome trend for the RIAA. The music industry has become accustomed to having its way with those it accuses of file-sharing, quietly dropping cases it believes it can't win. It looks as though the courts may be ready to stop the record labels from just walking away from litigation when it doesn't like the direction it is taking and give defendants justice by fully exonerating them of any wrongdoing.
RIAA Going After a 10-Year-Old Girl
The latest target of the RIAA's ire is a 10-year-old girl in Oregon, who was 7 when the alleged infringement occurred, and whose disabled mother lives on Social Security. In Atlantic v. Andersen, an Oregon case that was widely reported in 2005 when the defendant counterclaimed against the RIAA under Oregon's RICO statute and other laws, the defendant's mother sought to limit the RIAA's deposition of the child to telephone or video-conference. The RIAA has refused, insisting on being able to grill the little girl in person.
Italian Authorities Say Raid Yields 5 Terabytes Of Copyrighted Works
Authorities report more than $1 million in music industry losses through Discotequezone.
Italian authorities have shut down a peer-to-peer site and seized servers they say shared more than 600,000 pirated music tracks daily, contributing to $1 million (U.S.) worth of losses.
Italy's fiscal police announced Thursday that they had shut down Discotequezone with help from the Federation Against Music Piracy and prosecutors. Authorities said they seized five servers, four uploaders, 16 computers, 27 external hard disks, and more than 1,000 DVDs and CDs containing more than 5 terabytes of copyrighted material. Police arrested 11 people and charged them with copyright infringement.
Italy's music industry federation said the country has prosecuted nearly 200 people for illegal P-to-P distribution since 2005. The federation collaborates with the IFPI (International Federation of the Phonographic Industry), which represents about 1,400 record companies in roughly 70 countries and is currently advertising an opening for an Internet music piracy specialist in London.
Music Publishers Sue XM For Copyright Infringement
The National Music Publishers' Association (NMPA) has filed a lawsuit against XM Satellite Radio over its XM + MP3 service, which allows users to digitally store songs they hear on XM and create playlists without paying the required royalties. The lawsuit, filed in New York federal court, alleges massive copyright infringement and seeks an injunction against XM and a maximum of $150,000 in damages for each work infringed upon. The filing lists over 175 songs as a "small fraction" of those being illegally distributed through the XM + MP3 service.
"These devices go well beyond a radio transmission," said NMPA President David Israelite about XM's receivers that record songs, according to the Wall Street Journal. "They replace the need to buy music."
However, XM has contended that songs captured and stored on their receivers aren't true sales, in part because they stay on the radio only as long as the owner remains a subscriber, and also because they can't be moved onto a computer or other device. XM also argues that the devices encourage subscribers to buy songs, allowing them to bookmark favorites and facilitating digital sales through its partner, Napster.
XM spokesman Chance Patterson called the suit "a negotiating tactic to gain an advantage in our ongoing business discussions," according to CNet News. He continued, "XM pays royalties to writers and composers who are also compensated by our device manufacturers. We are confident that the lawsuit is without merit and that we will prevail."
Digital Radio Broadcast Flag Gets Snubbed by FCC
There's good news coming out of the FCC for radio fans; news that's sorely needed after two bits of negative news this past week. The FCC has published its rules for Digital Audio Broadcasting (DAB), and the big news is what's not in the rules: the broadcast flag.
The FCC made a number of important decisions with regards to DAB, but none of them touched the sensitive issue of requiring encryption and end-user control schemes for digital radio. The FCC's silence on the matter means that should the RIAA still wish to chase after the broadcast flag for digital radio, they'll need to lobby Congress to get it. The jury is out on whether or not there's any chance of Congress pushing something like that through, but since last year's elections there seems to be more skepticism in Congress with regards to the entertainment industry's technology plans. And make no mistake: the clock is ticking on this one. Digital radio has the clear go-ahead now (previous offerings were on a limited, case-by-case basis), and the time for implementing such a thing is quickly passing because of the equipment setup involved.
The announcement also indicates that the FCC chose to refrain from establishing a mandatory conversion schedule for digital radio, and a number of other changes seem largely favorable for the industry. FCC commissioner Robert M. McDowell called the FCC's decision "historic," as it now paves the way for digital radio to roll out across the country and in fairly laissez-faire fashion. This concise report by Glenn Fleishman covers most of those issues, and I also recommend this write-up by Brad Kava at the Mercury News.
Capture the Flag
For more than a year there has been a battle between the RIAA and the National Association of Broadcasters (NAB) over the issue of protecting content on digital radio. The issue centers around digital radio's quality: DAB will provide static-free, near-CD quality broadcasts, and the RIAA and friends are worried that this will enable users to merely record radio and never buy a CD again.
The big problem with the RIAA's demand for a broadcast flag was that they missed the boat. While radio stations were prepping for this move for years, the RIAA twiddled its thumbs. Only at the 11th hour did they step in and then ask for changes. A broadcast flag solution would have required end-to-end encryption, which would have required significant changes to digital radio broadcasting equipment. To make matters worse, there are already digital radio players on the market, and a move to a broadcast flag would have rendered them useless.
The RIAA will likely still fight for a broadcast flag for radio, but the FCC's decision makes it plain that they would prefer to see digital radio get out of the gate sooner rather than later, and they remain satisfied that the rollout should begin immediately and without worry for the added complications of a broadcast flag.
Musicians Campaign for Free Internet
Sensing a revolution in the way Internet traffic is managed, rock and roll musicians find themselves in the unusual position of defending the status quo.
Independent, lesser-known musicians and smaller record labels have launched a nationwide campaign Tuesday to support the idea that all Internet traffic should be treated equally, which they said is under fire from Internet providers who want to charge a fee to have some Web sites load faster than others.
The Rock the Net campaign, made up mostly of musicians who are on smaller record labels or none at all, said they are fearful that if the so-called "Net neutrality" principle is abandoned their music may not be heard because they do not have the financial means to pay for preferential treatment.
Some said they do not want to pay. The Web, they said, has allowed many unknown musicians to put their music online, giving fans instant access to new music and giving bands greater marketing capabilities.
They said independent record labels are also on an equal Web footing with major players like Apple Inc.'s iTunes.
"It could be a pretty sad world where money alone buys the ears and anybody that can't afford it, can't get proper placement, is pushed off to the ghettos," said Derek Sivers, owner of CD Baby, an online store that sells compact discs by independent musicians.
The group is the latest to get involved in the Net neutrality issue.
SavetheInternet.com is a coalition of more than 800 groups -- ranging from liberal political groups, such as MoveOn.org, to conservative groups, such as the Christian Coalition of America -- that support the issue. That campaign was formed more than a year ago and is organized by Free Press, a national public interest group.
On the other side, phone and cable companies, including AT&T Inc., Verizon Communications Inc. and Comcast Corp., want the freedom to charge content providers for priority Web traffic. They contend any legislation affirming Net neutrality would harm investment and innovation in the Internet.
Former musician Jenny Toomey, who is now executive director of the Future of Music Coalition, a nonprofit advocacy group for independent musicians, said this issue is so important that it has even attracted some big name artists, such as R.E.M., Sarah McLachlan and even Kronos Quartet, a classical musical string ensemble.
"Never before have I been doing work for the music community where every single artist that we called said, 'Yes use my name. I'm on board to support this,"' she said during a teleconference Tuesday morning. Her group is one of the campaign's organizers.
Rep. Edward Markey, who chairs the House Subcommittee on Telecommunications and the Internet, said if Internet providers are allowed to start charging fees for preferential treatment then it will stifle innovation across many industries, not just music.
"This is nothing more than a new bottleneck fee, a corporate broadband tax that will discriminate against less powerful voices and those unable or unwilling to pay such discriminatory fees," he said during the teleconference.
He complained that the Federal Communications Commission isn't doing enough to protect Net neutrality.
However, the FCC said last week it will see if Internet providers are conducting any such discriminatory business practices.
It said it will study how high-speed Internet providers are managing traffic on their networks and if they're charging different prices for different speeds or levels of service. The FCC might adopt regulations to ensure all Web traffic is treated the same.
Besides the Future of Music Coalition, the Rock the Net campaign is sponsored by Noise Pop Industries, which sponsors an annual San Francisco music festival among other things, and Zeitgeist Artist Management, which manages musicians.
According to the campaign's Web site, 124 bands and 24 music labels support the initiative.
Well, not that free…
Musicians Speak Out In Favor Of New Royalty Rates
A variety of musicians have spoken out in favor of the controversial, proposed higher royalty rates for Internet radio proposed by the Copyright Royalty Board (CRB). Drummer Jody Stephens (Big Star, Golden Smog) said in a statement, "If music adds commercial value to someone's site, then there is a monetary value due the writers and recording artists. The decision by the Copyright Royalty Board helps us afford to continue to add this value of music."
"A lot of internet users think of music as a product created and generated by major labels with corporate megadollars and so think nothing of taking or paying very little to use this music," added singer Michelle Shocked. "But the evidence shows that a large majority of music is now created by independent artists with very small margins trying earn a living and it's in that context that the recent decision to raise the internet broadcasting rates are seen as an encouragement to creativity and independence."
Jay Jay French of Twisted Sister added, "With the shrinking royalties from the usual sources, the ever expanding digital universe is apparently becoming the future and, before our very eyes, it is here now. I wholeheartedly support all organizations that endeavor to collect and account to all the hard working artists whose material is exploited. I applaud these new royalty increases as they scratch the surface of the new world order."
Last week, following criticisms and petitions from NPR and other broadcasters, the CRB agreed to grant motions for a possible rehearing over the royalty rates
A Radio Station Just for You
FOR all the talk about satellite radio, the most vibrant frontier in radio may be the Web. Many traditional AM and FM stations have begun streaming on the Internet, along with hundreds of smaller online-only operators. Even subscription download services like Napster, Rhapsody and Urge from MTV have preprogrammed radio for users who are not in the mood to hunt for tracks.
Currently, the most compelling online radio is interactive. Services like Pandora, Last.fm and Slacker evaluate your musical tastes, then serve up a continuous stream of programming to match. They mix familiar songs with new material you might like. They all do it by harnessing the technological forces of social networking, data mining and music analysis, though each uses a slightly different technique.
With so much momentum, there are still plenty of bumps. The Copyright Royalty Board of the Library of Congress recently announced a Web-radio royalty payment plan that has caused many free Internet broadcasters to fear for their fragile business models.
Some new interactive music services choose not to stream anything. Instead, they rely strictly on music the listener already owns or new tracks donated by publicity-hungry independent artists and labels. Others are becoming as creative with the way they license content as they are with the way they personalize it for you.
On its surface, Pandora is the simplest option. When you visit www.pandora.com, enter the name of a song or artist you enjoy. Immediately you will hear music from a “station” based on that initial choice. You can refine your station by naming other artists and songs, and Pandora picks music from those artists but more important, it chooses other songs you might like based on your suggestions.
Pandora makes recommendations based on analysis of songs by musicologists in Pandora’s Music Genome Project. The experts listen for up to 400 different characteristics in every song, from musical genre to the presence of a particular instrument. Songs with the most similarities naturally make their way to the same radio stream.
If you do not like one of Pandora’s suggestions, you can click on the “thumbs down” sign and it is never heard from again. If, on the other hand, you do like a song, you can give it the “thumbs up,” and that particular preference will be used in later suggestions.
Now that the free ad-supported service has been operational for 15 months, it can use the behavioral data of its six million listeners to add a new layer of suggestion. For instance, even if, on paper, the musicologists think it logical to pair a song by the “American Idol” superstar Clay Aiken with one by the Canadian folk balladeer Ron Sexsmith, several hundred listeners may give the juxtaposition a vote of no confidence. Tim Westergren, a Pandora co-founder, says the database now contains half a billion useful points of “contextual feedback.”
Last.fm (www.last.fm), an interactive radio service started in 2003, doesn’t use a musicologist. Instead, it bases its suggestions primarily on the wisdom of the crowd. A Last.fm co-founder, Martin Stiksel, refers to it as “collaborative filtering applied on a massive scale.”
At signup, the service asks users to download software — available for Macs and PCs — that tracks the music playing on your computer. The song-counting process, called “scrobbling” by Last.fm’s chief software developer, lets the company observe shifts in popularity, spot unexpected correlations between songs, and even discover new artists — or new tracks by known artists.
To date, Last.fm has “scrobbled” 65 million tracks by 8 million artists, in just about every country in the world. As with Pandora, you can identify songs you love, which helps to tailor your radio experience. The result is a stream of music that, statistically speaking, you ought to enjoy.
An important byproduct is the identification of musical “neighbors.” As the Last.fm community grows to over 15 million active users, it also promotes itself as a social networking site, like MySpace. You can see and contact others whose musical tastes correspond significantly with your own.
“This is community-driven,” Mr. Stiksel said. “Interest in new music flags when you don’t have an infrastructure of informers around you.”
The most ambitious free service is Slacker, unveiled this month. The ad-driven beta program at www.slacker.com resembles Pandora. But when the full-fledged release becomes available in early summer, Slacker will have several components. Slacker was founded by former chief executives of Musicmatch and Rio, so it is only fitting that Slacker will offer a free software player, like the once-popular Musicmatch Jukebox, and sell a portable iPod-like device, like those Rio made.
One twist is that, like Last.fm, the Slacker jukebox will enhance the radio stream by paying attention to the songs you choose. (D.J.’s will aid in programming as well.) Another twist is that, in addition to MP3s, the portable player will carry personalized radio streams that will be automatically freshened. For $7.50 a month, users get access to more features, but even if you do not pay, you will be able to buy the portable device and have access to free — though ad-rich — radio streams.
Most radically, sometime this year Slacker says it will introduce a satellite receiver dock for the portable player. The Slacker team plans to blast individual song files to listeners from a satellite several times an hour. As each song is sent, the player itself will determine whether the song is a good fit for its particular user. If so, it will be saved. If not, it will be rejected.
Because of the controversy over royalty rates, and because of its unique portable properties, Slacker made its own licensing deals directly with the four major music groups plus several hundred independent labels. Last.fm recently announced content deals with the Warner Music Group and EMI for tracks on its new, ad-free $3-a-month premium radio service.
The royalty issue is explicitly why services like Soundflavor, Goombah and Mog don’t offer true streaming radio. Soundflavor DJ, a free player available at www.soundflavor.com, uses a collaborative filtering technique, but instead of streaming new songs, it lets you cue up songs on iTunes or Windows Media Player, then takes over D.J. responsibility, matching your initial choices with other tracks from your own collection. It is especially effective if you have a library with thousands of tracks. After every few songs, Soundflavor offers you a free track download from an independent artist, or the opportunity to buy a song that its filter suggests you might like.
Goombah (www.goombah.com), another new service, asks you to download software that analyzes your entire music library. You can, however, select artists or albums that you do not want included in this evaluation. After the analysis, Goombah offers free track downloads and connects you to music fans with similar tastes.
Mog (www.mog.com) is a bustling new online community of music fans. Like Goombah, it uses software to examine your whole library, but it gives you the opportunity to prioritize songs played recently. The result is not streaming radio, but a music blog (hence “mog”) scene where people with overlapping musical tastes talk about concerts, post MP3s and share videos.
Mog’s most inspired development starts today. It is Mog TV, a personalized stream of YouTube music video posts. Mog says there are 400,000 videos there now, plenty to personalize for all tastes.
“Imagine if YouTube knew what songs were in your music collection,” said Mog’s chief executive, David Hyman. “It’s the ultimate mash-up.”
As for artist royalties, that currently appears to be YouTube’s problem.
The Doors Lead Way as Big Names of Rock go Digital
Record labels woo younger audience by offering back catalogues on downloads
In 1967 they were trying to "break down the doors of perception" with some of the best known songs of the era. Now the surviving members of the Doors hope to snare a new generation of fans by today releasing their entire back catalogue online for the first time.
Faced with declining CD sales, record labels are increasingly hoping to market rock's biggest names to younger listeners via the web, with the Doors leading the charge to mark the 40th anniversary of the release of their classic debut album.
The group is re-releasing all six albums with late lead singer Jim Morrison, from their incendiary self-titled 1967 debut to 1971's LA Woman, made months before their frontman died in a Paris bathroom.
All will be made available for digital download for the first time, as record companies turn to their back catalogues to boost online sales. Each album has been remastered with new material from the original sessions by the band and engineer Bruce Botnick. Two new greatest hits collections and a raft of unreleased tracks and alternate versions will also be made available on the web.
The marketing focus of such exercises has previously been on persuading diehard fans to part with their cash for new versions of songs they already own. But labels are now also targeting younger record buyers who missed classic acts the first time round.
The Doors guitarist Robby Krieger said listening to the tapes "brought back a lot of memories" and that this was the first time they had revisited the back catalogue in depth. "Even though you get bootlegged to death, there's something good to be said for the internet. If groups can sell their own records, that's great. I use iTunes and stuff," he told the Guardian.
He hoped the campaign would lead fans new and old to discover some of the band's lesser known tracks. Keyboard player Ray Manzarek added: "The delivery system is what it is. If everyone is on their computers, that's fabulous. But although you gain the ease of access, you do lose the sense of an artefact."
Dan Chalmers, senior marketing director at Rhino International, the Warner subsidiary on which the albums will be released, said: "It is fitting that such a pioneering group are now using 21st century technology to explore how their fans, both old and new, can experience their music. Offering download-only digital content such as video interviews, ringtones and remixes is further evidence of how the Doors continue to evolve."
Elton John will also today make his entire back catalogue available for digital download for the first time, initially via Apple's iTunes. The archive, spanning four decades and more than 400 tracks, is being released to coincide with his 60th birthday and a new greatest hits album. "I've wanted my music to be available for digital download worldwide for some time, but I knew that the entire catalogue - not just the hits - needed care and attention to be released in this way," said Sir Elton.
Like the Doors, he will also make tracks available as ringtones for the first time. The Beatles are also expected to finally join the digital download fray this year after settling a long running trademark dispute with Apple Computer. With archive tracks now eligible for the charts, they are expected to dominate the top 10.
But while he approved of making the Doors' acid fried LA rock available in new ways, Krieger said the record industry had not changed for the better. "I think it kind of sucks compared to then. I think the labels have gotten too much power and ego."
Krieger said they would repeat the exercise for Other Voices and Full Circle, the two albums recorded after Morrison's death, and a 1978 release that put new music to Morrison's poetry. The pair will tour this year with their band Riders on the Storm.
Top selling back catalogue artists
1 The Beatles
4 Rod Stewart
6 Pink Floyd
9 Michael Jackson
Top selling back catalogue downloads
1 Take That
2 Kylie Minogue
3 Pink Floyd
4 Michael Jackson
5 Linkin Park
8 Guns N' Roses
9 David Bowie
Sixty Years On - Sir Elton Celebrates 60th
"I've no wish to be living 60 years on," a 23-year-old Elton John sang at his first US concert in Los Angeles in 1970. Last night Sir Elton was poised to mark his 60th birthday by singing the same song - Sixty Years On - at a record-breaking live show at New York's Madison Square Gardens.
The sell-out Happy Birthday, Elton charity concert was set to be the star's 60th appearance at the legendary arena, streamed live to fans across the world via the internet. He has held the record for most performances at Madison Square Gardens since October 2001. Previously, the Grateful Dead held the record, playing there 52 times.
Last night's public celebration of his birthday followed a private event for around 300 guests on Saturday night at the St John The Divine gothic cathedral in Harlem. The guest list for the black tie dinner and dance included dozens of famous friends including Robin Williams, Elizabeth Hurley and Rod Stewart, and the fashion designer Donatella Versace.
Little Britain stars David Walliams and Matt Lucas were also in attendance, with John Lennon's widow Yoko Ono. Elton John shared the Madison Square Gardens stage he played at last night with Lennon in November 1974, the former Beatle's last performance before his death. The concert capped a fortnight of birthday celebrations for the flamboyant singer, who said he wanted a "once in the lifetime" extravaganza to mark reaching 60.
The London-based branch of the festivities took place this month at Shoreditch Town Hall, in east London. Sir Elton wore a Russian military fancy dress outfit while his partner David Furnish donned a US marine captain's uniform for what was described as a "low key" celebration.
Elton John Celebrates 60 Lavishly, in His Garden
Elton John never seemed like the kind of guy to shrug off a big occasion. So it was natural, perhaps even inevitable, that he would celebrate his 60th birthday at Madison Square Garden. His sprawling concert on Sunday night featured no onstage candles – not even "Candle in the Wind" – but felt ceremonial enough without them. There were dedications, recollections and a shower of confetti. A banner was unfurled from the rafters, bearing a giant number 60 under Sir Elton's name.
That last flourish actually commemorated something other than a birthday: Sir Elton's 60th performance in the arena. That's more than any other single artist, as the finer print under the numeral made clear. Small wonder that Sir Elton wanted to spend his birthday at the Garden: it's obviously a place where he feels at home.
The concert's opening salvo was "Sixty Years On," a conveniently titled song from one of Sir Elton's first albums. Immediately there was the ominous threat of show biz bloat: Las Vegas-style lighting, heavy synthesizers and cosmic graphics on an oversized screen. It was looking to be a big night, and not just in the festive sense.
Thankfully things got better, and not too much bigger: the concert gathered strength as it steamrolled along, covering a wide range of material from an expansive career. Sir Elton's regular five-piece backing band, augmented by the cellist Martin Tillman, sounded crisp and engaged, only occasionally succumbing to pomp. And the Brooklyn Youth Chorus managed to bring a sense of uplift, along with some raw power.
Singing in an unfaltering voice, and projecting an exuberant air, Sir Elton behaved more like a master of ceremonies than a guest of honor. His patter between songs was affable enough to defy the dimensions of the arena. "We haven't played this song in maybe 30 years," he mused before starting into "Ballad of a Well-Known Gun," the first of many gospel-inflected romps. He introduced "Mona Lisas and Mad Hatters" as "one of my all-time favorites," almost as if he hadn't been the one to write it.
Of course flamboyance has always suited Sir Elton better than modesty. (Robin Williams, briefly taking the stage with Whoopi Goldberg, toasted him as "a man who used to make Liberace look Amish.") But he was understated on Sunday: black coat, white shirt. And though he struck one puckish pose atop the piano, and took multiple victory laps across the stage, his performance was relatively subdued. Even on "Empty Garden," a tribute to John Lennon, he conveyed a plainly rueful feeling, stripped of melodrama.
The evening's biggest guest was a non-performer: Bernie Taupin, Sir Elton's lyricist and creative partner of 40 years. Emerging on the heels of Mr. Williams – and upstaging him in the only possible setting where he could – Mr. Taupin led the audience in singing "Happy Birthday." Sir Elton reciprocated by giving credit where it's due: "Without Bernie Taupin none of us would be here tonight. Because the words have always come first."
Then came "Daniel," one of the pair's many successful collaborations, and the beginning of the concert's stronger midsection. The band caromed through well-worn hits like "Rocket Man," along with lesser-known fare like "All the Young Girls Love Alice." Sir Elton and his cohorts kept getting lighter and leaner, sounding best during the last few songs before the encore: "The Bitch is Back," "Crocodile Rock" and "Saturday Night's Alright (For Fighting)," each more emphatic than the last.
The song preceding that finish-line sprint was more telling, though. It was "I'm Still Standing," accompanied by a video montage of album covers and outlandish old photographs. The song's lyrics amount to a bitter reprisal, but Sir Elton made them sound more jubilant than angry. "Don't you know I'm still standing better than I ever did," he sang. "Looking like a true survivor, feeling like a little kid."
It's Boom Time for Festivals
They sell out in minutes, there may be as many as 450 this year, yet demand for music events is still growing
It will feature a loch, a castle, the Beastie Boys and, its organisers hope, 20,000 "discerning music fans" who like their festivals with "a little more comfort" and can overlook the risk of drizzle.
The promoters behind the Glasgow music festival T in the Park last week announced they were launching a new festival, called Connect, to take place in Inveraray Castle in Argyll and Bute in September.
It followed the launch a few days earlier of Fflam, another new event, scheduled for Swansea in July and featuring Keane, the Manic Street Preachers and Placebo. 30,000 tickets are now on sale.
The new events are merely the latest in what has become an increasingly packed festival calendar. Festival-going has been growing sharply in recent years, but this year, say music industry insiders, the demand for tickets and new events is unprecedented.
It is estimated that as many as 450 festivals, large and small, will be taking place around the country this summer.
T in the Park, already Scotland's biggest annual music event, has expanded from two days in July to three, with capacity for up to 80,000 fans. When the last 10,000 tickets for the event were released for sale earlier this month, they sold out in 20 minutes.
Oxegen, an Irish festival, sold all its 60,000 tickets within an hour and 20 minutes and its promoters said they could have sold out three times over.
Today, meanwhile, the organisers of the Glastonbury festival are expected to be granted permission by Mendip district council to extend the capacity from 150,000 to 177,500, the biggest legal attendance it has ever had.
The festival has had to introduce a new system of pre-registering for tickets, due to go on sale on April 1, to cope with the unprecedented demand.
"There is no doubt about it, festivals are incredibly fashionable at the moment," says Neil Greenway, founder of efestivals.co.uk, an independent festival listing website.
Yesterday, the site listed 273, though Mr Greenway says a further 50 are currently being added. "We only list the ones we get to hear about, and each year more and more events are getting in touch with us. There is a definite growth in the number of events."
"It is a total boom time for festivals," agrees Paul Stokes, news editor of the NME. "They are as much a part of the summer now [for young people] as going on a Club 18-30 holiday."
How does he explain the surge in demand? "The British music scene at the moment is incredibly healthy, and the appetite for it is massive. Five years ago, going to gigs was seen as a bit of a minority interest. Now bands can sell out arenas after one album. And if you go to a festival, you can see your entire record collection in one weekend."
John Curd, the promoter behind Fflam, says he had been wanting to get involved in the festival scene for some time, but found the market "chock-a-block". "Everywhere around the country was already covered. I was looking around the south coast, but always in my mind was the thought, you're crazy, it is already so crowded for festivals. Then we realised that the one place where there was no major festival was Wales."
He hopes to build attendance up to 50,000, "a nice workable capacity".
Even away from the big rock gigs, there is a boom in smaller events. All Tomorrow's Parties, the line-up of which is "curated" each year by a different artist, has for the past seven years been held at a small holiday camp in East Sussex. This summer it is moving to a Butlins site, to double its capacity to 6,000.
Last year, Simon Taffe sold his house in order to fund a new event called End of the Road, held in Dorset in September and already much raved about by aficionados. "There are a lot of big events, but I felt there weren't really that many small festivals at the time that had quality and some really good bands. That was it, really."
He feels a lot of festivals will have folded in a few years' time. "I think we are overpopulated. I know it has become a recent trend, but you get so many festivals with the same line-up."
Aside from the very big events, he says, only those offering something quite distinct will survive.
Mr Stokes agrees that the trend will inevitably fade, though perhaps not for some time. "It is like all music fashions. Look at the superclubs that were hugely popular 10 years ago. Now they are completely gone. At the moment, going to a festival, spending a weekend in the rain watching a bunch of guitar bands, seems amazing, but whether that will always be the case, we will have to wait and see."
One weekend's parties
Some of the festival events scheduled for the weekend of July 6-8
Roskilde, Roskilde, Denmark
After Glastonbury, the biggest music festival in Europe, established in 1971. Confirmed acts this year include Arcade fire, Beastie Boys, Bjork and Red Hot Chili Peppers.
Tickets £130 for four day event.
Stonehaven Folk Festival, Stonehaven, Aberdeenshire
Long established event based in Stonehaven town hall and in local pubs. Confirmed acts include Kate Rusby, Archie Fisher, Black Umfolosi 5.
Prices not yet confirmed.
Sounds in the Grounds, Forcett Hall, Richmond, N Yorks
Five-year-old event, with all proceeds in aid of Eppleby Forcett school. Confirmed so far: Fizzyfish, The Mosaics
Weekend tickets £10 adults, £6 children
Blissfields, Bradley farm, Alresford, Hampshire
Small, family-focused festival featuring largely unsigned bands.
Adults £20, children under 14, £10
Antiworld, "A secret location somewhere near London"
Three-day outdoor dance event featuring "techno, trance, house, hard-dance, hardcore, uplifting and hard trance" and more.
Ely Folk festival, Ely, Cambs
A 22-year-old event. Confirmed acts include Battlefield Band, Shooglenifty and Mawkin.
Tickets from £18
T in the Park, Balado, near Glasgow
Boisterous Scottish event. Headliners include: Arctic Monkeys, the Killers, Razorlight, Snow Patrol
Tickets £140 (sold out)
Live Earth, Wembley Stadium, London, and in Shanghai, Brazil, the US and Antarctica
Ecological Live 8 in aid of "a climate in crisis". Confirmed acts (not necessarily playing in London) include Red Hot Chili Peppers, Foo Fighters, Duran Duran and Enrique Iglesias
Prices to be confirmed.
Oxegen, Punchestown Racecourse, Naas
Ireland's biggest music event. Featuring Snow Patrol, the Killers, Muse, Arcade Fire, My Chemical Romance, CSS, Amy Winehouse.
Tickets €197.50 (sold out)
Riverside festival Stamford, Lincs
Free event attracting around 10,000 people annually. Broad range of music.
The Album, a Commodity in Disfavor
Now that the three young women in Candy Hill, a glossy rap and R&B trio, have signed a record contract, they are hoping for stardom. On the schedule: shooting a music video and visiting radio stations to talk up their music.
But the women do not have a CD to promote. Universal/Republic Records, their label, signed Candy Hill to record two songs, not a complete album.
“If we get two songs out, we get a shot,” said Vatana Shaw, 20, who formed the trio four years ago, “Only true fans are buying full albums. Most people don’t really do that anymore.”
To the regret of music labels everywhere, she is right: fans are buying fewer and fewer full albums. In the shift from CDs to digital music, buyers can now pick the individual songs they like without having to pay upward of $10 for an album.
Last year, digital singles outsold plastic CD’s for the first time. So far this year, sales of digital songs have risen 54 percent, to roughly 189 million units, according to data from Nielsen SoundScan. Digital album sales are rising at a slightly faster pace, but buyers of digital music are purchasing singles over albums by a margin of 19 to 1.
Because of this shift in listener preferences — a trend reflected everywhere from blogs posting select MP3s to reviews of singles in Rolling Stone — record labels are coming to grips with the loss of the album as their main product and chief moneymaker.
In response, labels are re-examining everything from their marketing practices to their contracts. One result is that offers are cropping up for artists like Candy Hill to record only ring tones or a clutch of singles, according to talent managers and lawyers.
At the same time, the industry is straining to shore up the album as long as possible, in part by prodding listeners who buy one song to purchase the rest of a collection. Apple, in consultation with several labels, has been planning to offer iTunes users credit for songs they have already purchased if they then choose to buy the associated album in a certain period of time, according to people involved in the negotiations. (Under Apple’s current practice, customers who buy a song and then the related album effectively pay for the song twice).
But some analysts say they doubt that such promotions can reverse the trend.
“I think the album is going to die,” said Aram Sinnreich, managing partner at Radar Research, a media consulting firm based in Los Angeles. “Consumers are listening to play lists,” or mixes of single songs from an assortment of different artists. “Consumers who have had iPods since they were in the single digits are going to increasingly gravitate toward artists who embrace that.”
All this comes as the industry’s long sales slide has been accelerating. Sales of albums, in either disc or digital form, have dropped more than 16 percent so far this year, a slide that executives attribute to an unusually weak release schedule and shrinking retail floor space for music. Even though sales of individual songs — sold principally through iTunes — are rising, it has not been nearly enough to compensate.
Many music executives dispute the idea that the album will disappear. In particular, they say, fans of jazz, classical, opera and certain rock (bands like Radiohead and Tool) will demand album-length listening experiences for many years to come. But for other genres — including some strains of pop music, rap, R&B and much of country — where sales success is seen as closely tied to radio air play of singles, the album may be entering its twilight.
“For some genres and some artists, having an album-centric plan will be a thing of the past,” said Jeff Kempler, chief operating officer of EMI’s Capitol Music Group. While the traditional album provides value to fans, he said, “perpetuating a business model that fixates on a particular packaged product configuration is inimical to what the Internet enables, and it’s inimical to what many consumers have clearly voted for.”
Another solution being debated in the industry would transform record labels into de facto fan clubs. Companies including the Warner Music Group and the EMI Group have been considering a system in which fans would pay a fee, perhaps monthly, to “subscribe” to their favorite artists and receive a series of recordings, videos and other products spaced over time.
Executives maintain that they must establish more lasting connections with fans who may well lose interest if forced to wait two years or more before their favorite artist releases new music.
A decade ago, the music industry had all but stopped selling music in individual units. But now, four years after Apple introduced its iTunes service — selling singles for 99 cents apiece and full albums typically for $9.99 — individual songs account for roughly two-thirds of all music sales volume in the United States. And that does not count purchases of music in other, bite-size forms like ring tones, which have sold more than 54 million units so far this year, according to Nielsen data.
One of the biggest reasons for the shift, analysts say, is that consumers — empowered to cherry-pick — are forgoing album purchases after years of paying for complete CD’s with too few songs they like. There are still cases where full albums succeed — the Red Hot Chili Peppers’ double-CD “Stadium Arcadium,” with a weighty 28 tracks, has sold almost two million copies. But the overall pie is shrinking.
In some ways, the current climate recalls the 1950s and to some extent, the 60s, when many popular acts sold more singles than albums. It took greatly influential works like The Beatles’ “Sgt. Pepper’s Lonely Hearts Club Band” and the Beach Boys’ “Pet Sounds” to turn the album into pop music’s medium of choice.
But the music industry’s cost structure is far higher than it was when Bob Dylan picked up an electric guitar. Today’s costs — from television ads and music videos to hefty executive salaries — are still built on blockbuster albums.
Hence the emergence of scaled-back deals with acts like Candy Hill. Labels have signed new performers to singles deals before, typically to release what they viewed as ephemeral or novelty hits. Now, executives at Universal say, such arrangements will become more common for even quality acts because the single itself is the end product.
With Candy Hill, Universal paid a relatively small advance — described as being in “five figures” — to cover recording expenses. Ms. Shaw, who formed the group with Casha Darjean and Ociris Gomez, said the members had kept their day jobs working at an insurance company and doing other vocal work to be able to pay the rent at the house where they live together.
If one of their songs turns into a big hit, they hope to release a full album, and to tap other income sources, like touring and merchandise sales.
But turning a song into a hit does not appear to be getting any easier.
Ron Shapiro, an artist manager and former president of Atlantic Records, asked, “What are the Las Vegas odds of constantly having a ‘Bad Day?’ ” — referring to a tune by the singer Daniel Powter that sold more than two million copies after it was used on “American Idol.”
While music labels labor to build careers for artists that are suited for albums, he added, “You have to create an almost hysterical pace to find hits to sell as digital downloads and ring tones that everybody’s going to want. It’s scary.”
Apple iTunes Offers 'Complete My Album'
Apple Inc., the company that popularized selling songs online for 99 cents apiece, now hopes to buoy interest in albums, giving customers credit for purchases of full albums from which they have bought individual tracks.
Apple introduced the "Complete My Album" feature Thursday on its iTunes Store. It now gives a full credit of 99 cents for every track the user previously purchased and applies it toward the purchase of the complete album.
For instance, most albums on iTunes cost $9.99 so a customer who already bought three tracks can download the rest of the album for $7.02.
Previously, users who bought singles and later opted to buy the album had to pay the full price of the album and ended up with duplicates of those songs.
The album price reduction is good for only 180 days after the initial purchase of individual tracks.
Eddy Cue, Apple's vice president of iTunes, said the new feature should help eliminate the resistance that customers, including himself, may have felt in buying an album after they had already bought a single from it.
"Once we bought a song, we wondered why we had to buy it again if we wanted the album," Cue said. "We hope it helps us sell more songs ultimately, and from the customer point of the view, we think it's the right thing to do."
About 45 percent of the nearly 2.5 billion songs sold on iTunes were purchased as albums, Cue said.
For a limited period of 90 days, Apple said it will make the "Complete My Album" offer retroactive to users who purchased tracks dating back to the launch of the iTunes Store four years ago.
Apple dominates the online music market and is a leading music retailer worldwide behind only Wal-Mart Stores Inc., Best Buy Co. and Target Corp.
Some record label executives have complained about Apple's one-size-fits-all model of 99 cents a track; they would prefer flexible pricing, such as charging more for new releases. Some also contend today's easy access to single song downloads - versus the more lucrative method of selling albums - hasn't helped the industry's declining sales.
In addition, some artists have complained about how a la carte downloads have wrecked the integrity of albums that are meant to be enjoyed as a single work of art.
Apple plans to maintain its groundbreaking 99-cents-per-download model because "it's exactly what consumers want," Cue said in an interview.
He also said the concept of "albums should exist forever," though they're being redefined in the digital era. Some albums sold on iTunes, for instance, include music videos as part of the package.
Digital technology allows for that kind of flexibility, Cue said, in the same way it allows iTunes to sell a single song and then apply the purchase toward a full album later.
Thomas Hesse, a president of global digital business at Sony BMG Music Entertainment, called "Complete My Album" another "revolutionary" offering from the Cupertino-based company. "ITunes is giving music fans the best of both worlds - the ability to discover great new music by buying just the single and a credit toward the purchase of the complete album," he said in a statement.
Shares of Apple climbed 51 cents to close at $93.75 on the Nasdaq Stock Market.
Bay City Rollers Sue for Royalties
They once turned the world tartan and melted millions of teenage hearts but, they have long claimed, never received their financial due. Now 1970s pop idols the Bay City Rollers are suing their former record label, claiming millions of dollars in unpaid royalties.
Famous for hits including Bye Bye Baby and Shang-a-Lang and their tartan outfits, they sold an estimated 120m records around the world. But after years of wrangling with each other and their former label Arista, six members of the Scottish band have now joined forces to file a claim in the district court of Manhattan.
The group claims Arista owes millions of dollars in royalties generated from selling their albums, multimedia licences, merchandise, rights to commercials, films and other recordings over the past 25 years. The Rollers claim a contract states Arista has obligations dating back to the 1970s, that a payment of £133,000 in September 1997 was the only one made to the band, and that Arista has repeatedly claimed it does not know who to pay and has made a series of excuses to avoid payment.
Joshua Krumholz, of Holland and Knight, lead counsel for the band, said: "To this day Arista Records is still successfully exploiting their recordings in the US and around the world." One estimate suggests the band could be owed up to £50m. In 2005 Sony BMG, the label that now owns Arista, told the Guardian it had been unable to pay royalties because the feuding band could not decide who was owed what. It said the money was being held in an escrow account while the matter was resolved.
AT&T, Napster Offer Free Downloads on Music
Napster Inc. has partnered with AT&T Inc. to give the communication company's customers free, unlimited access to Napster To Go for one year, the companies said Monday.
The deal, which becomes available April 1 with qualifying AT&T plans, gives customers access to more than 3 million songs across multiple screens including the PC, wireless screen and other compatible music devices.
It is available across the San Antonio-based AT&T's nationwide wireless footprint with qualifying plans, as well as across its entire 22-state local telephone service footprint with qualifying wireless, home phone and broadband triple-pack bundles, the company says.
AT&T will support the promotional offer with a marketing campaign to include broadcast, print and online advertising.
Financial terms of the deal were not disclosed.
Los Angeles-based Napster offers free, Web-based music listening and sharing, subscription and portable subscription services.
Ninth Circuit Deals Setback to Labels in Bertelsmann, Napster Suit
Bertelsmann won a partial victory Wednesday in its ongoing battle with labels and publishers over the German company's financial contribution to the original Napster. The Ninth Circuit Court of Appeal held that Bertelsmann does not have to turn over confidential communications with its lawyers regarding the transaction.
Bertelsmann loaned the peer-to-peer service operator about $85 million between 2000-2001 to fund Napster's anticipated transition to a licensed digital music distribution system. The deal occurred while copyright holders were suing Napster for copyright infringement. Napster failed to fully launch the new system before it declared bankruptcy.
In the current action, filed in 2003 by EMI and Universal labels as well as publishers, the copyright holders claim that Bertelsmann is secondarily liable for infringement by Napster's users. They argue that by lending Napster the money, Bertelsmann assumed control over the service or prolonged its allegedly infringing operations in order to avoid losing the estimated 40 million Napster users before the licensed service launched.
In November 2005, labels and publishers asked the federal District Court in San Francisco to order Bertelsmann to turn over all so-called attorney-client communications related to the loan. These types of communications are confidential – and protected as such by the law. But there is an exception to the attorney-client privilege of confidentiality when a client consults an attorney for advice that will service him in the commission of a fraud. Those communications may not be confidential.
The labels and publishers argued that when drafting the loan documents, Bertelsmann engaged in a continuing scheme to defraud the courts. They argued that the loan was really cash given in exchange for an equity stake in the Napster, and Bertelsmann used its lawyers to create sham loan documents to avoid liability for Napster's activities. They also argued that through its lawyers, Bertelsmann attempted to defraud the courts by omitting from the loan documents a side agreement that allowed Napster to channel some money into its litigation expenses in fighting the infringement action filed by rights holders.
In April 2006, the District Court agreed and ordered Bertelsmann to turn over the communications. Bertelsmann appealed. Now, the Appeals Court has sided with Bertelsmann.
In its 35-page opinion, the Appeals Court concluded that the loan terms did not constitute a fraudulent misrepresentation. Since the labels and publishers filed to provide enough evidence supporting their claim of fraud, Bertelsmann's communications with its lawyers are confidential.
Universal Music Group is no longer part of the case. UMG labels settled their claims last fall when buying Bertelsmann's BMG Music Publishing.
Representing BMG are Weil Gotshal & Manges attorneys R. Bruce Rich and Kenneth Steinthal in New York City; Matthew Powers and Gayle Rosenstein in Redwood Shores, Calif.; and John Keker and Michael Page of Keker & Van Nest in San Francisco.
Representing the record labels as real parties in interest are Daniel Collins, Glenn Pomerantz and Kelly Klaus of Munger Tolles & Olson in Los Angeles; Carey Ramos and Lynn Bayard of Paul Weiss Rifkind Wharton & Garrison in New York; Peter Simmons and Mitchell Epner of Fried Frank Harris Shriver Jacobsen in New York; and Paul Duvall and Richard Busch of King & Ballow in La Jolla, Calif.
The case is In re: Bertelsmann Inc., 06-72515.
Leslie Simmons contributed to this story.
EMI, Bertelsmann Settle Napster Suit
EMI Group Plc. and Bertelsmann AG have reached a settlement on litigation stemming from the German media company's investment in music file-sharing software company Napster, the two companies said Monday.
They did not release details of the agreement, which settles one of the numerous lawsuits targeting Napster. Bertelsmann admitted no liability as part of the settlement.
"We are pleased to have reached this agreement with Bertelsmann," Eric Nicoli, chief executive of EMI Group, said in a statement. "We can now put this matter behind us and continue to pursue the development of new legitimate digital music business models."
The lawsuit stems from Bertelsmann's decision in 2000 to invest in Napster after the once wildly popular site was crippled by lawsuits seeking to shut down the network, which music companies accused of enabling users to steal music.
Cablevision Loses Network DVR Court Case
Cablevision Systems Corp. has lost a legal battle against several Hollywood studios and television networks to introduce a network-based digital video recorder service to its subscribers.
The New York-based cable operator said in a statement late on Thursday it is currently considering an appeal against the ruling by Judge Denny Chin of the U.S. District Court in Manhattan.
Cablevision was sued last May by several Hollywood studios and television networks, including those owned by Time Warner Inc., News Corp., CBS Corp. and Walt Disney Co., which charged that the planned service would violate U.S. copyright laws.
Cablevision had hoped a network-based DVR system, called Remote Storage DVR or RS-DVR, would have done away with the need for the installation of hundreds of thousands of digital set-top boxes in subscribers' homes.
This would potentially have saved Cablevision significant administration and maintenance costs. It already has installed over 500,000 set-top boxes in homes in its area.
Other cable operators had been vocal in their support for such a system.
But the studios and TV networks argued in two suits filed at the U.S. District Court in Manhattan that because the proposed service would allow subscribers to store television programs on the cable operator's own computer servers, it would be breaking copyright agreements by effectively retransmitting the programs.
The judge agreed with the studios and networks. "The RS-DVR is clearly a service, and I hold that in providing this service, it is Cablevision that does the copying," Chin said in his ruling.
He also dismissed a countersuit by Cablevision.
Cablevision had argued that DVR technology based on its network is as legal as digital video recorders in the living room, such as those produced by TiVo Inc. and Cisco Systems Inc.
"The RS-DVR is not a stand-alone machine that sits on top of a television," Chin said. "Rather, it is a complex system that involves an ongoing relationship between Cablevision and its customers."
Cablevision said it would be considering all its options and would continue to install conventional set-top boxes.
"We are disappointed by the judge's decision, and continue to believe that remote-storage DVRs are consistent with copyright law and offer compelling benefits for consumers -- including lower costs and broader availability of this popular technology, Cablevision said in the statement.
Cablevision shares fell 20 cents, or 0.65 percent, to $30.36 on the New York Stock Exchange.
Judge Rules Against DVD Consortium
A Superior Court judge ruled Thursday (March 29) a startup's media server does not violate the security technology used to protect DVD disks because the standard licensing contract and specifications for the technology are so poorly worded.
The decision marks a rare, though small victory for a Silicon Valley startup facing the interests of a group of large movie studios and consumer and computer companies. The ruling also could open the door for other systems makers who want to design personal video libraries that store DVD movies on hard drives.
Judge Leslie C. Nichols ruled against the DVD Copy Control Association (DVD CCA) in a civil suit that asked the court to force startup Kaleidescape to change its design or stop selling its server that stores hundreds of DVD movies on a hard drive array. Nichols said the basis for his decision was his ruling that an entire section of the DVD CCA's spec for the Content Scramble System (CSS) was not technically included as part of the license agreement.
"This [CSS spec] is a product of a committee of lawyers," said Nichols in his ruling.
In testimony, witnesses said the CSS specification was drafted a decade ago by a team of lawyers mainly from Hollywood studios working with the advice of a small group of engineers over the course of more than 100 meetings. "It is almost self evident that there is potential for confusion there," said Nichols.
Specifically, Nichols ruled that a 20-page document known as the CSS General Specification was not part of an overall group of 170 pages of technical specifications defining CSS. The DVD CCA relied on language in the general spec to assert any system playing DVD movies has to have the physical disk present.
The Kaleidescape system imports DVDs into a hard drive array for future playback. The DVD disks do not remain in the system, something the DVD CCA said would allow users to keep unauthorized digital copies of rented or borrowed DVDs.
Kaleidescape maintained the CSS agreement allowed the company to build a system that kept a single, protected copy of a DVD on a hard drive for private use. The company has a policy against importing rented and borrowed DVDs. It said the fact such disks could still be imported is a problem for studios, not Kaleidescape to solve.
Nichols also faulted the DVD CCA's process. The group makes the CSS license available on the Internet, but does not provide legal or technical guidance on implementing it, something Kaleidescape sought. "I saw this as a case where no one sat down to talk," said Nichols.
Michael Malcolm, founder and chief executive of Kaleidescape hailed the decision as a victory for innovation in the face of large consortiums. The DVD CCA is managed by a board of 12 executives, six drawn from the top movie studios and three each from top consumer and computer companies. It has 350 licensees for CSS.
"The ugly thing about the motion picture industry is the extent to which it operates by collusion and corporate lock step in organizations like the DVD CCA," said Malcolm. "It stifles competition in this country and it has for a long time.
"It's much better for the economy to have these things decided by competition and free enterprise," said Malcolm, a serial entrepreneur who also founded Network Appliance and CacheFlow. "This is a victory just one small battle in that war," he said.
Kaleidescape has sold more than 2,600 of its media servers since they were launched in August 2003 at prices starting at $10,000 and up. The company employs more than 100 people and has more than 900 dealers in 42 countries.
The DVD CCA sued the company in late 2004, a move that cast a cloud over the company for many of its employees and prospective dealers and users, said Malcolm who has invested $8 million of his own money into the startup to date.
"We were pretty nervous. It's a scary thing to come to court to hear a decision that may impact whether your company is around in a few months," said Malcolm before joining employees for a pizza and champagne lunch at its Mountain View, Calif., headquarters.
Bill Coates, lead attorney for the DVD CCA said he expects the group will appeal the decision.
This was the time the DVD CCA took a hardware company to court alleging it infringed its CSS contract. The consortium is in mediation with another hardware company, AMX (Richardson, Texas) over similar alleged violations in a media server.
The Motion Picture Association of America did warn a wide swath of as many as 80 chip and systems makers of possible violations of CSS in 2005. The group ultimately settled out of court cases raised with three chip makers-- MediaTek Inc. (Hsinchu, Taiwan), ESS Technology Inc. (Fremont, Calif.) and Sigma Designs Inc. (Milpitas, Calif.).
The DVD CCA has at least threatened to take action against one other startup, Molino Networks of San Jose. The company demonstrated in February 2004 a system aimed to sell for less than $2, 000 that could store up to 50 DVDs on a single hard drive, but it folded late that year when it failed to get venture financing, in part due to the threat of legal action from the DVD CCA.
"We spent a lot of time meeting lawyers and reading contracts instead of writing software," said Tim Sylvester a former Cisco engineer who was founder and chief executive of Molino. "Michael Malcolm is in a fortunate position that he can fund this himself," Sylvester said.
"We will see more competition now," said Malcolm. "That's probably the biggest loss in the eyes of the DVD CCA. They will see a lot more consumer companies going into this kind of product," he added.
In closing arguments Coats warned that a ruling in favor of Kaleidescape "could open the flood gates to copycatsPrices could come down to that of a laptop for products that are not as elegant as Kaleidescape's but have the same basic functionality," Coats said.
Valenti Has Stroke
Former U.S. presidential aide and movie ratings creator Jack Valenti has been hospitalized after suffering a stroke last week, his friends said on Tuesday.
"He is hospitalized at Johns Hopkins in Baltimore and his family tells me that the doctors are encouraged by his progress to date," Barry Meyer, chairman and chief executive of Warner Bros., said in a statement made at the request of the family.
"Out of respect for Jack and the family's privacy, we are not going to release any additional information at this time," Meyer said.
Valenti, 85, was preparing to promote his new book, "This Time, This Place: My Life in War, the White House, and Hollywood," which is due out in June.
Valenti served as an aide to Presidents John F. Kennedy and Lyndon Johnson, and was aboard Air Force One by Johnson's side when he was sworn in after Kennedy was assassinated in Dallas.
A Texas native, Valenti ran an advertising agency in Houston before heading to Washington to work for Johnson, then majority leader of the U.S. Senate.
He later spent 38 years as the top lobbyist for Hollywood, heading the Motion Picture Association of America, or MPAA, where he helped develop a voluntary ratings system for movies and fending off government attempts to curb explicit sex and violence on film.
After leaving the MPAA in 2004, he worked with the television industry to fight tougher regulations to address concerns by parents' groups and regulators about profanity and sexual content on broadcast television.
He still retains an office at the movie organization's Washington headquarters.
At Kink.com, a Live Tool Against Piracy
Lexi Love has thrown herself headlong into a four-hour shoot at Kink.com, an adult video company with a Web site that's pushing the envelope in both technology and taste.
Love, an experienced porn star who flew up from Los Angeles for one day earlier this week, is surrounded by a three-person video crew and computer-controlled mechanical devices that can't be adequately described in a family publication.
Soon, a video of Love will be extracted from the high-definition video camera's attached hard drive, edited, rearranged, converted to multiple formats, and made available on a Web site for anyone who pays a subscription fee of $30 a month. The nearly imperceptible clicks of a still camera's shutter--shoots are also photographed--are painstakingly removed during editing so they can't be heard on the soundtrack.
That, simply put, is Kink.com's business model, and it has propelled the company to a prominent position in the adult entertainment business. Revenue was reportedly $20 million last year, and the company recently made headlines for buying San Francisco's former National Guard Armory, a sprawling structure with a dank and dilapidated basement said to be perfect for filming the so-called fetish entertainment for which the company is known.
It's often said that adult entertainment companies were the first to figure out how to profitably sell content on the Internet, and that they have continually found new and inventive ways to take advantage of the interactive medium while titillating their audiences.
Now Kink.com is on the cutting edge of the fight against video piracy. While mainstream entertainment outlets like Viacom and NBC complain noisily about YouTube, Kink.com, with neither the resources nor the mainstream appeal of its giant counterparts, is in an even tougher fight: Protecting the content it produces that's continually copied and reposted on the dozens of Web sites that traffic in poached adult material.
"It's an uphill battle--it's never-ending," Kink.com founder Peter Acworth said about copyright infringement in an interview with CNET News.com. "That's one reason we're moving in a live-show direction."
Like other online publishers, Kink.com has had to puzzle out ways to deal with the perennial problem of copyright infringement on peer-to-peer networks and Usenet. Kink.com's solution is live shows. In some ways, it's is a throwback to a more analog era, back when the Grateful Dead encouraged taping and sharing of live concerts (while still charging admission). The band Phish follows the same model today by authorizing taping and Internet sharing for "non-commercial purposes."
Earlier this month, Kink.com began streaming live 1080i high-definition video--at a time when mainstream sites such as CNN.com offer jerky, blurry pre-edited clips at roughly one-tenth the resolution of high-def.
"I haven't actually seen live high-def streaming elsewhere," Acworth said.
Better than banking
Ackworth's office boasts an impressive collection of pornographic DVDs but otherwise could belong to any other high-tech entrepreneur. And that, despite what he produces, is essentially what he is.
A genteel Brit with degrees from Cambridge University and the Ecole des Hautes Etudes Commerciales in Paris, Acworth moved into the adult entertainment business while working toward a doctorate in finance at Columbia University. He came across a 1997 news article describing the money to be made through Internet porn and decided he'd rather be an entrepreneur than work in a bank for the rest of his life.
Kink.com now has around 70 employees and 10 Web sites, with three more (including "The Training of O" and "My First Time Bound") scheduled to be launched by mid-2007.
As Kink.com has grown, so has the porn sector. Some estimates place the U.S. share of the industry at as much as $20 billion, though $10 billion is more widely accepted. The market for porn internationally is up to five times as large. Adult mobile content generated $1.4 billion in sales worldwide last year and will balloon to $3.3 billion by 2011, according to Juniper Research.
It is an article of faith among the digerati that pornography drives advances in technology. The argument goes something like this: VHS bested Sony's rival Beta format because that's where skin flicks were widely available. The Super 8 camcorder became so popular because of its devotees among amateur and professional pornographers. At-home downloading of porn spurred the growth of broadband and online credit card processing.
If Kink.com's experience with its first live broadcast on March 17 is any indication, that rule of thumb still holds true today. Live broadcasts are hardly novel, of course. Webcam doyenne Jennifer Ringley pioneered the updated-every-few-minutes JenniCam more than a decade ago, and adult sites like Webcams.com and Sexcams101.com have taken Webcam salaciousness to its logical and mostly uninteresting conclusion. A Webcam stripper is even a main character in NBC's popular Heroes television show.
But most of those videos, like the tiny streams from CNN.com or FoxNews.com, are displayed at an embarrassingly grainy resolution of some 70,000 pixels. Although the audio is clear enough, miniscule onscreen windows can be painful to watch. High-definition content that's encoded in 1080i, on the other hand, has a resolution of 1 million to 2 million pixels, depending on what method of counting is used.
Kink.com's inaugural HDTV broadcast relied on an intricate and fragile chain of computer hardware, some 30 components in all. "It required some black magic," said Jeff Schnitzer, Kink.com's chief technology officer.
Three high-definition video feeds were mixed into streams that were piped to the Internet through Windows Media Server boxes and watched by about 300 people who could also join a live chatroom. About two-thirds selected the live 1080i stream, which required a 1 megabit-a-second link. Because of the complexity involved, the job required 11 Kink.com workers, including camera operators, technicians, Webmasters and two models, one of whom seemed to spend most of her time typing on a laptop from within a metal cage.
An important requirement is to minimize latency, the delay between when a customer types a request and the video result appears on their computer. The live shoot had a latency of less than 20 seconds, and the company is trying to find ways to reduce it even further. "If they're typing 'spank her harder' and it takes 30 seconds, that doesn't feel live," Schnitzer said. A second live broadcast is scheduled for next Friday.
Networking at the 'Porn Palace'
Creating and maintaining a network that can handle live high-definition video is no trivial task. Kink.com has a fiber link running from its main office--called the "Porn Palace"--to a data center operated by 365Main. Two 1-gigabit links connect the company's servers at the 365Main site, which can hold 50 terabytes of data, to the rest of the Internet.
Schnitzer, the CTO, says an upcoming project will create a duplicate data center in Amsterdam that has a mirrored copy of all the data. "In case the legal climate here were to ever change, we could flip a switch," he said.
Prosecution is a concern of any adult business, from movie theaters to strip clubs, but so far the U.S. Department of Justice has not launched the kind of aggressive Internet crackdown the industry feared when George W. Bush became president six years ago. Although one hardcore California video distributor, Extreme Associates, is facing obscenity charges, federal prosecutors have mostly spent their time targeting child pornography instead. The Child Online Protection Act remains in legal limbo.
The threat of obscenity prosecution "seems to have evaporated," said Kink.com founder Acworth.
Kerfuffle over National Guard armory
As fetish sites go, Kink.com is practically buttoned-down. It has strict rules of conduct and about 40 percent of its employees are female. In addition, the company offers benefits, including health, dental, vision and a 401K plan with employer matching. It proudly counts itself as part of San Francisco's gay, lesbian, bisexual and transgendered community and its employees send a float to the annual Burning Man art festival in the Nevada desert.
That float currently is stored in a corner of the massive drill court of what used to be the San Francisco National Guard Armory, which Kink.com quietly bought for $14.5 million last December. What looks like a Moorish castle in San Francisco's Mission District has been vacant for nearly 30 years, after neighborhood activists blocked efforts at the height of the dot-com bubble to turn the 200,000-square foot building into office spaces for start-ups. They also opposed plans to turn it into a telephone switching station. (Because it's on the National Register of Historic Places, it can't easily be razed.)
When Kink.com announced that it had bought the armory and planned to use its dank, decaying basements to film bondage scenes, even famously liberal San Francisco started to become squeamish. Neighborhood activists wrote opinion articles in the San Francisco Chronicle decrying "degrading images of men and women." Street protests took place. Mayor Gavin Newsom demanded public hearings on the matter.
After a brief public kerfuffle, however, not much changed. Acworth took pains to reassure skittish San Franciscans that there would be no garish signs on the outside of the building announcing Kink.com's presence, and promised to clean up the armory, which had grown filthy with disuse and is poorly lit at night.
Acworth has plans to outfit the armory with industrial-strength lighting gear (a 1200-amp lighting box has already arrived) so he can rent it out to Hollywood studios looking for a place in San Francisco to film. He envisions the top floor eventually becoming residential units, the second floor being used as Kink.com offices, and the basement remaining largely as-is and being used to film dungeon and boiler-room scenes for Kink.com sites.
By showing that adult videos can co-exist with mainstream movies, Acworth seems to be laying the groundwork for an infiltration of sorts. "I think it's only a matter of time before some tamer bondage appears on cable TV," he said. "Part of my goal, in addition to make money out of this, is to make kink thought of as OK."
Questions and Answers on Domain Name System and the Bid for 'XXX'
LISBON, Portugal — The Internet Corporation for Assigned Names and Numbers, the Internet's key oversight agency, voted Friday against a proposal to create a voluntary ".xxx" domain name for pornography sites.
Questions about the proposal and domain names in general:
Q. What are domain names?
A. Behind every machine connected to the Internet is a series of four numbers known as an Internet Protocol address. Domain names were created as an easy-to-remember shortcut — it's much easier to remember "ap.org" than "18.104.22.168." When you type a domain name into a Web browser or an e-mail message, your computer checks a series of domain name servers to match the name to the equivalent numeric address.
Q. How many domain names are there?
A. There are currently 266 suffixes with a handful of others approved but not yet functional. Most are for specific countries or regions, such as ".fr" for France and even the legacy ".su" for the Soviet Union. Others are reserved for specific uses, such as ".mil" for the U.S. military and ".museum" for museums. Relatively few — the most popular being ".com" — are truly for global and universal use.
Q. How do names get added?
A. Most of the names date back to the system's creation in the 1980s. In 1998, the U.S. government, which funded much of the Internet's early development, selected ICANN to oversee Internet addressing policies, including the addition of domain names. ICANN approved the first major round of additions in 2000, selecting seven names but essentially rejecting ".xxx" and several others. ICANN opened a second round in 2004 and received bids for 10. ICANN also has approved region-specific codes, including ".eu" for the European Union and ".ps" for the Palestinian territories.
Q. Where would have ".xxx" fallen?
A. The current proposal grew out of the 2004 round of bids, which ICANN specifically restricted to "sponsored" names, meaning their use would be limited to a specific community, be it the travel industry or porn sites. ICM Registry LLC, a Florida startup founded by entrepreneurs with backgrounds in domain names and U.K. Internet companies, sought its creation.
Q. Why did the decision take so long?
A. Of the 10 applications, only ".xxx" and ".post" for postal services had remained pending. The ".xxx" was rejected Friday by the ICANN board in a 9-5 vote with one member abstaining. ICANN had rejected the ".xxx" proposal last May, but ICM came back with a new plan with more specifics. Even before that got a vote, ICM returned with yet another proposal to address concerns about ICANN's enforcement abilities and the independence of a nonprofit body that would set rules governing the domain's use. Each step meant a period for public commenting. Opposition was strong among many adult Web sites and religious groups.
Q. What happens now that the name has been rejected?
A. ICANN Chairman Vinton Cerf said that the ICM proposal was at an end and that it would no longer be considered. ICM could seek to have the decision reviewed through ICANN channels or file a lawsuit if it believes ICANN failed to follow its own guidelines. A new proposal could be offered in the next round, too. ICANN has yet to announce details on the next round.
Adult Site's Legal Battle Could Aid Web Hosting Services
A federal appeals court ruling in a case involving an adult publisher appears to have delivered broader legal protections for online service providers against lawsuits claiming privacy violations and other illicit behavior by their users.
The U.S. Court of Appeals for the 9th Circuit on Thursday released a 26-page opinion (PDF) that upholds a number of lower-court findings against the adult-oriented Web site Perfect 10 in a lawsuit against a family of companies including Web hosting service CWIE and credit card processing firm CCBill.
The same appeals court is also preparing to release rulings in two other cases involving Perfect 10, whose online presence boasts "thousands of images of the most beautiful natural women in the world"--one against Google and Amazon.com and the other against MasterCard and Visa.
Perfect 10's suit against Arizona-based CWIE and CCBill dates back to 2002 and includes a wide array of allegations, including copyright and trademark infringement, unfair competition, false advertising, and violation of right of publicity--that is, protection against unauthorized commercial use of a person's image or name.
Attorneys for Perfect 10 and the Web hosts did not respond to requests for comment on Friday.
One of the most significant parts of the court's opinion is a brief section that appears to clarify questions about how a portion of a federal law called the Communications Decency Act (CDA) applies to state laws, lawyers following the case said.
The CDA's Section 230, which has proven to be a critical defense for Internet service providers, bloggers and Web publishers, broadly immunizes providers of an "interactive computer service" from liability for content that others post, provided they make good-faith efforts to restrict access to material that could be considered "filthy, excessively violent, harassing or otherwise objectionable."
In its ruling, the 9th Circuit essentially concluded that Section 230 can also shield service providers from liability when they are confronted with allegations that their users violated state laws, such as right of publicity and trademark statutes, which was not always clear. (Disputes involving federal copyright and criminal laws, however, continue to be exempt from such immunity.)
"This is a very important decision for anyone who runs an online business where you handle other peoples' content, whether it be people who create photos or artwork or anything or whether it's users who log in and upload stuff and comment on things," said Jason Schultz, a staff attorney for the Electronic Frontier Foundation, which has filed briefs supporting Google's arguments against Perfect 10.
The implications could have a broad impact on online service providers, particularly if some states decide to draft laws that would, for instance, require social-networking sites like MySpace.com to clean up their users' behavior.
"The reality is, the way that this 9th Circuit ruling reads, it now makes entirely clear that plaintiffs can't make any state-based claims against online service providers--they're all gone," said Eric Goldman, a professor at Santa Clara University School of Law in Santa Clara, Calif.
Companies wishing to bring suits alleging bad behavior by Internet users could still target the users themselves, but they may have a weaker case against the intermediaries that post their content.
Interpreting the DMCA
Much of the rest of the opinion centers on interpretations of a 1998 federal law called the Digital Millennium Copyright Act (DMCA). A provision in that law says Web hosts are generally not liable for the content their users post, as long as they take down the offending content promptly upon being notified by the copyright holder and meet a number of other standards, such as not receiving "direct financial benefit" from infringing content.
Some of the conclusions reached by the judges could aid content hosts making arguments in high-profile suits such as one Viacom recently brought against YouTube. "The court made it very clear that providers do not have to actively police their systems to look for infringement," EFF's Schultz said.
For instance, the DMCA requires the entity sending so-called takedown notices to include specific information in their requests to service providers, such as identifying the infringing content and certifying, under penalty of perjury, that the person sending the notice is "authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
The three-judge panel found that Perfect 10 fell short of meeting those standards, and because of that, the service providers were not obligated to comply with its requests. The judges said they worried about the First Amendment free-speech violations that could occur if a site removes content when it doesn't actually infringe on copyrights.
Perfect 10 had also argued that CWIE and CCBill should have been aware of infringing content on its services because they provided services to Web sites like "illegal.net" and "stolencelebritypics.com." Under the DMCA, Web hosts can be held liable for infringement if they're aware of infringement occurring on their servers and do nothing to stop it.
The judges disagreed with Perfect 10's logic, saying it should not be the burden of a service provider to determine whether photographs are "actually illegal."
"When a Web site traffics in pictures that are titillating by nature, describing photographs as 'illegal' or 'stolen' may be an attempt to increase their salacious appeal, rather than an admission that the photographs are actually illegal or stolen," the opinion said.
The judges left it up to a lower court to weigh a few unanswered questions important to the case, such as whether the nature of CCBill's operations qualifies it for the DMCA protections in the first place and whether Perfect 10 can use takedown notices to bolster its arguments that the companies don't do enough to stop copyright infringement.
Some attorneys following the cases said the first opinion may be overshadowed after rulings are issued in seemingly more high-stakes disputes involving Google and the credit card companies. The search giant has appealed a federal district court ruling from last February that found portions of Google's image search feature may violate copyright law by creating and displaying thumbnail copies of Perfect 10's photographs.
Windows 95 and Vista: Why 2007 Won't Be Like 1995
What if Microsoft threw a party, and nobody came?
Despite its best efforts to create excitement for Windows Vista at release parties held in a variety of retail stores this last week, nobody seems to care about the product.
Just over a decade ago, things went very differently at the release of Windows 95. Some people were reportedly so excited that they bought it without even having a computer to run it on.
What's killing Microsoft’s party this time around?
Look, It's Got A Start Button
Back in late 1995, Microsoft spent $300 million on a massive, worldwide campaign to introduce Windows 95. The company lit up the Empire State Building in red, yellow, and green Windows logo colors, draped Toronto's CN Tower with a 300 foot banner ad, and paid to distribute a million and a half free copies of the Times in London.
The official release party on Microsoft's Redmond campus brought in Jay Leno to host, and paid the Rolling Stones millions for the rights to use "Start Me Up" as the Windows 95 anthem.
Microsoft also produced a half hour TV infomercial, and hired huge teams of users to provide support for the new product. At CompUSA launch parties, Microsoft handed out copies of ”Windows 95 for Dummies.”
Windows 95 wasn't anything close to the Cairo Microsoft had promised back in 1991. Instead, it was just the latest version of MS-DOS running an improved version of the existing Windows graphical shell. Internally, it was called Windows 4.0.
Even so, Bill Gates described it as empowering technology that would herald in a new dawn of computing.
"Windows 95 is about unlocking more of the potential of computing," Gates said in a Microsoft press release. "We are moving into the next era of computing, with broader communications via e-mail and the online world, dazzling multimedia and games, and richer educational software. Windows 95 helps open up this new world. It makes computing easier and more fun, and will empower people and businesses to do more with computers than has previously been possible."
Windows 95 Reaction
Gates was stretching past the truth in his comments about ‘empowering people to do more than had been previously possible.’ He knew Windows 95 wasn't much of a release; his company had worked with IBM on a real operating system in the late 80s, which Microsoft abandoned in 1990 in favor of developing NT on its own.
Five years later, NT was still running late, and it didn't look like it could be adapted for home users anytime soon. Microsoft had to fudge an interim plan out of its existing Windows 3.x product, which was still based on MS-DOS.
As the Washington Post observed, "customers expecting Windows 95 to be a great technological leap forward may be disappointed. International Business Machines Corp. and Apple Computer Inc. already have operating systems on the market that sport the features – greater memory management, the ability to perform several tasks at once and enhanced user-friendliness – now being hailed in Windows 95."
The Post quoted Tim Breuer of IBM as saying, "Microsoft is delivering the same features we delivered seven years ago. We're moving on business as usual here."
Apple’s response was printed in full page ads in major newspapers:
Hey This Is Not Cairo
And what about NeXTSTEP, the basis for Gates' vaporous Cairo announcements from nearly a half decade prior in 1991? Years before Microsoft even announced plans to copy NeXT with Cairo, NeXT had released advanced object oriented frameworks running on top of a modern Unix foundation.
NeXT frequently demonstrated features such as voice email, rapid application development, and modern graphics imaging. Gates was certainly aware that the future had already been delivered, and not by Microsoft.
Gates was also well aware that--even by Microsoft’s standards--Windows 95 was just reheated legacy garbage, particularly in comparison to what other companies had already delivered.
Microsoft was hyping Windows 95 as something noteworthy and impressive, but everyone in the industry knew better.
At the time, it was common to see bumper stickers saying "Windows 95 = Macintosh '89," making it puzzling that something widely recognized as a third rate product could rapidly gain market share.
The Big Mac Attack
Despite the casually indifferent attitude expressed by IBM, Apple, and others, Windows 95 turned out to be devastating for both OS/2 and Mac sales. Microsoft reported selling a million copies of Windows 95 within four days; a year later, it had sold 40 million copies.
On the PC, sales of rival operating systems from OS/2 to DR-DOS quickly dried up; NeXT had already given up on selling its NeXTSTEP product in the anti-competitive PC market prior to the launch of Windows 95, and set out to adapt its technology to power web servers instead.
Apple's hardware sales also took a huge hit. The company began its fall from a position as the top PC maker with 10% of the US PC market to its desperate condition in 1996 and 1997, when it reported losses of $836 million and then a billion dollars--although more than half of its losses in 1997 were costs related to buying NeXT.
So what was the factor that pushed adoption of Windows 95 a decade ago?
It wasn't good technology. CNET described Windows 95 as one of the biggest disappointments of 1996, writing, "Though it was hyped as a 32-bit powerhouse, many companies simply ignored it and stayed with Windows 3.1. And who could blame them? Plug and Play is often plug and pray and to make matters worse, Windows 95 often runs slower than a comparable Windows 3.1 system. And 32-bit or not, it still crashes. A lot."
It wasn't third party software makers. US News and World Report stated, "From a software publisher's point of view, releasing a Macintosh version makes good business sense. Production costs for Mac software are lower than those for Windows titles; less testing is required because there is a single standard for Mac hardware and software. And Macintosh owners buy 30 percent more software than their Windows counterparts."
IDC reported at the time that the average cost to develop and support Windows applications was 50% higher per dollar of revenue than the cost to develop for Mac, and that Macs generated almost 75% more software revenue per machine than Windows machines.
It wasn't an improvement in quality. JD Power and Associates had ranked Apple Macs first in reliability, dependability, and customer satisfaction.
It was the Windows Price Paradox. Microsoft didn't sell 40 million retail copies of Windows 95 at its $209 retail price to consumers wanting to buy its software.
At Windows 95’s debut in the third quarter of 1995, Microsoft reported selling 4 million OEM copies and 3 million Windows 95 retail copies. From then on, retail sales of Windows dropped to about a third the number of bundled OEM sales on new PCs.
Today, OEM sales represent 80% of Microsoft’s Windows profits. Few people buy Windows, they simply get it on their PC as an automatic sale, whether they want it or not.
Microsoft used its existing monopoly position to force hardware makers into exclusive licensing agreements that ensured an OEM copy of Windows 95 was sold with every new PC, and prevented any bundled sales of competing operating systems.
That forced competitors to market their software as a third party retail product competing against the already installed Windows 95, which appeared to be free to end users. There was effectively no real choice among PC operating systems. That left consumers with only the choice between a PC and a Mac.
Apple stumbled through a number of poor business decisions throughout the early 90s, leaving Microsoft with little effective competition. Under CEOs Michael Spindler and Gil Amelio, Apple:
•failed to market the Mac effectively
•failed to sell Macs in retail effectively
•provided poor and expensive software developer tools and support
•failed to deliver its own Mac software development
Microsoft on the other hand, was using PC manufactures to do its marketing and sales, provided much better support for developers, and wrote its own killer apps for Windows, principally Office.
A Perfect Storm
From the mid 80s to the mid 90s, Microsoft amassed fortunes as an application developer for the Mac. Even in 1996, Microsoft reported making more money from Office--$4.56 billion--than it did from all of its Windows sales combined--$4.11 billion.
Tying sales of Windows 95 to Office helped to boost sales of both. Microsoft pushed the new version of Office as a reason to buy Windows 95, and Windows 95 helped kill sales of rival applications, including the then standard WordPerfect and Lotus 1-2-3, neither of which were available or optimized for Windows 95 at its launch.
That series of events conspired to create a perfect storm funneling the lion's share of new application and PC operating system revenues toward Microsoft and away from all rivals.
The media was stunned that such a undistinguished product could have such remarkable market power. Many analysts concluded that Microsoft was simply being run by a brilliant visionary genius, and sold their souls into the eternal service of Microsoft.
Ship Now, Fix it Later
Throughout the second half of the 90s, Windows 95 was improved upon with a series of updates. The original "O" version of Windows 95 was nearly unusable, but updates in the 1996 "A" and later "B" versions made it workable.
Those updates were only installed on new PCs however, and were not made freely available to users stuck with the original version. The solution for many users was simply to buy a new PC. Further updates would require users to pay at regular intervals for new versions that got progressively worse.
Windows 98, a paid upgrade, was released in June 1998 at a simpler event at Fort Mason in San Francisco. It promised to deliver the Internet and the Push Buzzword to PC users; internally it was numbered Windows 4.1.
In 1999, Microsoft released another paid upgrade, Windows 98 Second Edition, which delivered more bug fixes and a new browser version. It also carried the Windows 4.1 major version number.
In 2000, Microsoft delivered more updates to home users in Windows ME, another paid upgrade internally designated as Windows 4.90. It was such a bad product many Windows users stuck with Win98.
Uptake of Windows ME was so bad that Microsoft was later forced to extend its end of life support for Win98. Windows ME was listed forth in PC World's list of the "Worst Tech Product of All Time," and was commonly referred to as "Mistake Edition."
What users really needed was the NT code Microsoft spent five years struggling to integrate into its DOS-based Windows 95/98/ME product. While Windows ME was a tragically bad product, Windows 2000--aka NT 5.0--worked pretty well; it had been released for business users the same year as Windows ME.
In 2001, Microsoft released Windows XP--aka NT 5.1--as a paid upgrade, revised version of Windows 2000 with all the support for games and odd hardware that had previously only been available on DOS-based Windows.
The Gates Illusion
The mystique of Bill Gates grew as Microsoft destroyed the competition in one industry after another, using products that in most cases weren't very remarkable.
By the release of Windows XP in 2001, Microsoft had swallowed up 98% of the OS market and had become proficient in using its market power to destroy emerging competition in web platforms, in Java development, and elsewhere.
IBM's OS/2 was gone, and Apple's Mac platform had only just recovered from free fall. Apple had spent five years adapting the NeXT technology it bought in the end of 1996 for the new Mac OS X. In 2001, had just released the first full version and first free update.
Even before XP was delivered, Microsoft announced it would:
•deliver a Windows XP successor named Longhorn in 2003
•deploy a Windows Everywhere strategy in mobile and embedded markets with WinCE
•develop software to manage the world's music and media under the name Windows Media
•deliver a challenge to the Sony PlayStation in gaming with the Xbox
Why 2007 Won't Be Like 1995
From 1996 to 2006, Microsoft's revenues jumped from $8.67 billion to $44.2 billion, and its net income jumped from $2.2 billion to nearly $12.6 billion. Despite enjoying huge net profit margins of 28.45%, Microsoft's profits to earnings ratio is down from .37 a decade ago to .25 today. Why are the company's profits slipping?
Efforts to deliver on its promises in Longhorn, mobile devices, consumer electronics, music and media have all been huge failures. PC sales have slowed down as consumers waited for the new Longhorn, delivered now over three years late as Vista.
Outside of Office, Windows, and server products, Microsoft's efforts in home, entertainment, and mobile devices lost a staggering $1.2 billion in 2006.
Over the last five years, Microsoft replayed the same type of illusions it delivered in the early 90s:
•technologies promised for Longhorn were dropped as features, just as Cairo had fallen apart a decade prior
•WinCE delivered a new round of hypeware at each year's CES, but none resulted in any successful products
•efforts to deliver music and media products were rejected by consumers in favor of Apple's iPod and iTunes
•the Xbox was outsold 4:1 by the PS2, tying sales with the GameCube
•the Xbox 360 had similarly disappointing sales even without facing any new competition for a year
Software vs Hardware
One might imagine that demand for a new version of Windows should be higher now than it was a decade ago. There are some critical differences however. In 1995, Microsoft promised to turn the dumpy DOS PC into something rivaling a Macintosh at a fraction of the cost of buying a new Mac.
Today, PCs running Windows XP are serviceable, and there's no compelling reason for most users to pay hundreds of dollars for a software upgrade. Most users upgrade when they buy a new PC. Further, the price of Windows has jumped from $209 for a full version of Windows 95, to as much as $399 for the Ultimate version of Windows Vista.
Steve Ballmer wildly gesticulated about the iPhone's $500 price tag, but doesn't seem to grasp that the iPhone delivers more functionality than his own company's attempts with Handheld PCs at a much lower price.
The iPhone is also hardware device with a certain perceived value; customers who paid $500 for earlier generations of the iPod wouldn't have paid hundreds of dollars for a software MP3 player.
Likewise, how many shoppers who paid $800 for their PC will turn around and spring for a $300-400 software upgrade that offers some new flash, but really just makes their system run slower?
Ballmer probably didn't give the subject much thought, because his company can't figure out how to make money selling hardware, and is stuck trying to sell software to consumers.
The problem with that strategy is that consumers don't like to pay for software; they prefer to buy hardware.
It's very difficult to sell software to anyone apart from professionals, who see the value of buying software as a tool. Vista simply doesn't offer much beyond Microsoft's assurance that it fixes the security and usability problems in XP. The problem is it really doesn't, and introduces problems of its own, such as slower performance.
Another critical difference new in 2007 is that Windows Vista now has effective competition. Apple made a number of major changes between 1997-2001 to bounce back as a retail and marketing powerhouse. It has shipped five major new revisions of Mac OS X since Microsoft last delivered Windows XP.
Windows watchers started comparing Longhorn with Apple's Mac OS X 10.3 Jaguar in 2004. When Longhorn never arrived, Microsoft's revised plans were compared with Apple's Mac OS X 10.4 Tiger in 2005.
Two years later, Vista is now largely being dismissed as Microsoft's version of Tiger, making it difficult to create excitement for it. It’s like the Zune, offering to match features of the almost two year old G5 iPod. Yawn.
Even worse for Microsoft, Apple is about to deliver Mac OS X 10.5 Leopard, which builds upon a system that is already known to not suffer from the nagging security, spyware, and viruses that plague Microsoft's products.
Turned Tables, Sticky Sales
On top of that, Apple is now selling NeXT's technology using Microsoft's own tricks: Apple's Mac OS X is only available on Macs. That means that anyone buying a Mac gets a copy of Mac OS X free, and shelling out $300 for a copy of Windows is only an option; an automatic sale for Apple, and a hard sell for Microsoft.
Oh, how the tables have turned.
It gets even worse for Microsoft however. Every new Mac buyer not only expands the Mac market at the cost of Windows, but does so at a greater than 1:1 ratio. Since Macs typically last longer than PCs, every Mac sold means multiple sales of PCs will never happen. Macs last for 4-5 years; typical PCs only 2. Every Mac sold takes out two or more unnecessary PCs, meaning fewer automatic sales of Windows at an accelerating pace.
Oh, and if you have a PC that is more than two years old, count yourself lucky. For every PC more than two years old, there are plenty of far more ancient Macs still in use.
Mac buyers are also more likely to buy a Mac in the future, making the allure of Mac OS X sticky. That's not the case with Dell or HP buyers, who are likely to buy whatever PC happens to be cheapest two years down the road.
Once you go Mac, you don't go back.
It's Not the Money
Bill Gates and Steve Ballmer, both of whom top the list of the world's richest individuals, are ready to retire and can't be too concerned about losing a few bucks to the Mac.
Lost revenue pales in comparison to how embarrassing its must be to have to suffer through the unveiling of their charlatan scams to deliver the world old, overpriced technology wrapped up in a frumpy me-too package.
Prior to Apple's purchase of NeXT, Steve Jobs was quoted in Triumph of the Nerds giving his impression of Microsoft's products:
"I guess I am saddened, not by Microsoft's success - I have no problem with their success, they've earned their success, for the most part. I have a problem with the fact that they just make really third rate products."
Since then, innovation at Apple under Jobs has demonstrated just how third rate many of Microsoft's products are in comparison.
If a company with a quarter the market valuation, a quarter the employees, and a sixth the profits of Microsoft can dethrone the company in its operating system development efforts, block its attempts to expand its monopoly into music and media DRM, and embarrass it in mobile development, how would Microsoft do on an equal playing field?
Blame Bad Management
Microsoft isn’t a bad entity made up of engineers working to hold back the technology available to consumers and businesses. It’s staffed by the same sort of brilliant engineers, developers, and marketers that work at Apple, or Google, or contribute to open source.
What gives Microsoft such an ill reputation for anti-competitive behavior and mediocre products is the faulty vision and blinding greed of its upper management, particularly Bill Gates and Steve Ballmer.
Together, they have done more to stifle new ideas and glut the market with bad products than any other force in our lifetime. Even worse, Gates and Ballmer ignored their incredible potential to use their monopoly position to usher in a wave of fantastic new technology, and instead saddled the world with more profiteering junk.
As Douglas Adams said, "The idea that Bill Gates has appeared like a knight in shining armour to lead all customers out of a mire of technological chaos neatly ignores the fact that it was he who, by peddling second-rate technology, led them into it in the first place."
Is there anything worthwhile at Microsoft apart from its monopoly positions in Office and Windows? What will happen to Microsoft as Mac OS X continues to eat into the premium and most valuable end of the desktop market, and Linux--backed by everyone from IBM to Oracle--eats into Microsoft's business and server markets?
I think I already know, but it will be fun to watch anyway.
Microsoft Makes Copying Vista a Monster Task
With Windows XP, antipiracy measures were a bit of an afterthought. But with Windows Vista, Microsoft had pirates in its sights from the get-go.
Even the unique Vista retail packaging--a plastic box with one round corner--was designed, in part, to thwart counterfeiters. And the packaging is just the start; most of Microsoft's antipiracy work is built-into the software itself, meaning that just copying the code and getting a product key isn't enough.
"It's a different game for the counterfeiters," Cori Hartje, director of Microsoft's Genuine Software Initiative, said in an interview. "They're having to resort to this full attack on the product."
One such exploit was dubbed "Frankenbuild" because it merged bits of the beta versions of Windows Vista with the final product in an effort to defeat the validation checks built into the software. But, thanks to technology built into Vista, Microsoft was able to update its defenses and start flagging such systems--even those that initially passed activation--as illegitimate.
The antipiracy effort has been building slowly inside Microsoft. Microsoft began quietly testing a Windows Genuine Advantage program in 2004 with an optional check that offered no benefits for taking part, nor penalties for machines that didn't pass. The company quickly expanded the program, adding some incentives for those machines that were verified. The company later made the checks mandatory to download most Windows updates and add-ons.
Microsoft has seen reducing piracy rates as a way to boost its sales, particularly given that the fastest PC sales growth is coming in emerging markets where piracy rates tend to be higher.
With Vista, checking for pirates was always part of the plan. Technology built into Vista allows Microsoft to periodically evaluate the OS to make sure it is legitimate, rather than just having one opportunity, when the product key is first entered at activation.
That's important if Microsoft learns, say, that a once-valid product key has been compromised. Microsoft also used the validation mechanism after Frankenbuild was discovered, forcing machines to go through validation, which the Frankenbuild systems failed because the software was not an intact copy of the OS.
There are a number of features, including the new Aero user interface, that require genuine validation. As part of Vista, machines that fail validation go into reduced functionality mode if not remedied within 30 days, meaning such systems can be used only to browse the Internet for an hour at a time.
Microsoft has also tightened the rules on volume licenses, largely eliminating the ability for businesses, even those with bulk purchase deals, to use one product key across an unlimited number of machines. Microsoft has two options with Vista. Companies can either use their own PC or server as a sort of hall monitor to make sure which Vista systems are out there, or they can get a multiple-use key from Microsoft, though such keys have a set number of activations. Businesses can also use a combination of the two approaches.
It's a little early to tell how all of the efforts are working, but Hartje said there are some reasons for optimism.
"We see indications from our channel that they are concerned they get genuine product," Hartje said. "We're optimistic the technology changes are going to make a difference. The fact we haven't seen any high-quality counterfeits is a good sign."
While engineering is a big part of Microsoft's efforts, the company is also doing other things. One recent move was to change the way copies of Windows are produced. Rather than just license replicators to build as much of the software as they might need, such disc makers are now required to pay a part of the cost of the software when the discs are first burned, discouraging large stockpiles of authentic discs from building up in warehouses.
Microsoft Announces More Discounted Vista Licensing
One of the best things about Windows Vista's new packaging is the fact that all retail versions of the OS are on one disc. If you have one copy of Vista, you have the code for almost all of the other versions.
That's the driving force behind Anytime Upgrade, and it's also the reason why Microsoft is now trying to entice consumers into buying discounted licenses. This past week the company announced the Windows Vista Additional License program, which provides discounts to customers who have already purchased either a retail or an OEM edition of Windows Vista. The program was announced by Nick White, Microsoft product manager. According to White, the offer has been available for several weeks, although unannounced, and it will be made available in Europe, Asia and the Middle East early next week.
The program gives users a 10 percent discount on up to five additional Windows Vista licenses. Customers are eligible to buy licenses for the edition of Windows Vista that they already own. That is, a customer with Home Premium can buy up to five additional Home Premium licenses, but cannot purchase a combination of Home Premium and Ultimate licenses, for instance.
The discounts are modest when put into context. The Home Premium upgrade is $143.00 discounted, down from $159. Retailers are selling Home Premium upgrades for $150-$155 on average, so the discounts aren't exactly shocking, especially considering that the $143.00 price gets you nothing more than a sheet of paper with a licensing key on it.
The new program builds on the so-called "Windows Vista Family Discount," which offers Home Premium upgrade licenses for $49.95 to customers who have purchased Vista Ultimate. We suspect that Microsoft realized that the program was hobbled somewhat by the requirement that customers first purchase Ultimate, which is the most expensive Windows Vista available, at $399 for the full version or $259 for the upgrade. Yet the newer discount program isn't actually much better.
If you're considering snapping up a few licenses, be aware of the pricing conundrum this creates. Three Home Premium upgrades would cost approximately $445 under the Additional License program (one full price, two discounted), whereas an Ultimate upgrade plus two additional Premium licenses would cost $357, about $90 less.
It's actually a quite confusing message, because in one case the Home Premium upgrades are practically 1/3 the cost of the other, yet both are "discount" programs. By spending about $100 more for Ultimate, you save about $100 each on Home Premium, although you are limited to two such purchases. Caveat emptor.
Microsoft Says Vista Sales Doubling Windows XP Pace
Microsoft Corp. said on Monday that it sold more than 20 million Windows Vista licenses in the first month since the operating system's general debut on January 30.
The world's biggest software maker said the pace of Vista adoption is at more than twice the rate of its predecessor, Windows XP, which had sold 17 million licenses after its first two months of release.
The numbers released by Microsoft follow mixed messages from the company about the pace of adoption for Windows Vista, the company's first major operating system upgrade in more than five years.
Prior to Vista's general release, Microsoft Chief Executive Steve Ballmer had predicted that consumers would move to Vista faster than past Windows upgrades.
However, several weeks after the release, Ballmer tempered expectations by saying analysts' forecasts for revenue from Windows Vista in fiscal 2008 -- Microsoft next business year starting in July -- were "overly aggressive."
The Windows franchise is the centerpiece of Microsoft's business, because the company makes more than 75 cents in operating profit for every dollar of sales. The cash flow generated by Windows allows Microsoft to make investments in new businesses like digital music players and online services.
Windows operating systems run on more than 95 percent of the world's computers and represent the company's biggest profit driver.
Vista's Long Goodbye
Windows Vista suffers from a bug that causes many machines to stall while deleting, copying and moving files, a flaw that has provoked consternation in online forums.
"I've seen this bug in action, and trust me, it's as if you're copying over a 64k link using only 256mb of RAM," one Reg reader complained. "To add to the problem, you can't cancel or anything."
According to a thread (http://forums.microsoft.com/TechNet/...8057&SiteID=17) on Microsoft's TechNet site, Microsoft has issued a hotfix for the problem, but it has failed to quell the outrage. For one thing, individual users must get Microsoft's approval before the fix can be downloaded, according to our tipster. And for another, hotfixes are more of a pain to install than patches.
We've contacted a Microsoft spokeswoman, who promised to see if a patch for the problem in the works. Meanwhile, Vista users continue to grumble.
"I simply can not believe that I updated to a new computer and put windows Vista on it to find that it's not even capable of moving and deleting files in an efficient manner," one disaffected user posted in the Microsoft forum. "Microsoft must be kidding! The most basic of features that I use all the time is a slow train wreck."
Slower to Copy Than to Download
"Because of the slow move/delete/copy I'm thinking of going back to XP .......
I downloaded a 1,8 Gb file over the internet to my D drive. Moving the tmp file from C to D took three times longer than downloading the file on a 6Mbit internet connection !!
Copy that DVD in a Second, IBM Says
IBM Corp. will unveil a pair of tiny chips today that can transmit huge volumes of data by beaming light pulses through plastic fibers, an approach that uses far less energy than pushing a stream of electrons through copper wires.
IBM said its prototypes can transmit 160 gigabits of data per second -- reducing the download time for a feature-length high-definition video from 30 minutes to one second.
The prototype chips are of a type of processor called a transceiver -- a device that can both send and receive data.
IBM Vice President and technology guru Bernard Meyerson said that within a few years, these light-based transceiver chips could be used to transmit huge volumes of data in critical chokepoints on the Internet or in large computer networks.
This will be especially important as the advent of high-definition video dramatically increases the volume of data flowing through networks.
Analyst Lawrence Gasman of Communications Industry Researchers in Virginia, said that one type of 40-Gbps transceiver costs about $25,000 today. Based on IBM's designs, he estimates that it could sell its 160-Gbps chip for about $500 to $600 -- about the cost of a 10-Gbps transceiver today.
For the foreseeable future, this laser-driven transceiver technology is likely to find its use in Internet routers and switches and network server centers, which ship huge volumes of data at high speeds.
Howard Stern Tries to Kill ‘American Idol’ With Kindness for a Weak Link
For the last few years, three-quarters of the network television executives in Hollywood have tried to figure out how to derail “American Idol,” the Fox juggernaut that dominates the prime-time ratings.
Now Howard Stern, of all people, says he has found the way.
For the last two weeks, Mr. Stern has been promoting a Web site created by a 24-year-old “American Idol” fan that encourages people to support the worst performer on the popular talent show. Their candidate has been Sanjaya Malakar, the off-key, lyric-fumbling, elaborately coiffed teenager who is perhaps the most talked-about “Idol” contestant ever.
“We’re corrupting the entire thing,” Mr. Stern said on his Sirius Satellite Radio show Thursday, the day after Mr. Malakar secured a place in the top nine finalists. “All of us are routing ‘American Idol.’ It’s so great. The No. 1 show in television and it’s getting ruined.”
By promoting Mr. Malakar, Mr. Stern says, he hopes to turn the talent competition into a farce and destroy its popularity.
The stakes of the battle are not insignificant, either for Fox or for the contestants. In its sixth season, “American Idol” has drawn an average of 32 million viewers each week, nearly 50 percent more than the next highest-rated show and better than the show has measured in any previous season.
Some past winners of the competition have gone on to produce chart-topping singles and albums, including Kelly Clarkson, who won the first season, and Carrie Underwood, who won the fourth. Jennifer Hudson, who was eliminated in a late round during the show’s third season, went on to win an Oscar for her performance in “Dreamgirls.”
Mr. Malakar, who at 17 looks like a 1970s pop star of the David Cassidy/Bobby Sherman/Andy Gibb variety, had been among the lowest two or three vote-getters in the first weeks of the season. But after Dave Della Terza, the founder of a Web site called votefortheworst.com, first appeared on Mr. Stern’s radio show on March 20, Mr. Malakar has not been among the lowest vote-getters. (“Idol” does not release total vote tallies, but each week reveals which performers are in the bottom slots.)
A number of those voting for Mr. Malakar may be genuine fans, many of them in the pre- and early-teenage brackets, to judge from posts on a number of Internet bulletin boards dedicated to the show.
But the fans also include older women and Indian-Americans, and Mr. Malakar’s progress is being tracked voraciously by Indian newspapers in both the United States and India. And they probably include executives at Fox, the television network that is riding “American Idol” to the top of the ratings.
Mr. Malakar, who is from Federal Way, Wash., also has some prominent detractors, not least some of the show’s judges. (Although the judges eliminate contestants in early rounds, results at the current stage of the show are determined solely by viewer votes.)
Simon Cowell, the acid-tongued British judge who is one of the show’s biggest draws, threatened to quit the show if Mr. Malakar wins. “I won’t be back if he does,” Mr. Cowell recently told the television show “Extra.”
Randy Jackson, another of the three “Idol” judges, responded to Mr. Malakar’s recent performance of “Ain’t No Mountain High Enough” this way: “That song was almost unlistenable for me, man.”
A Fox spokeswoman declined to comment on Mr. Cowell’s comment, but the network said in a statement that efforts like Mr. Stern’s do not affect the results. “With 30 million votes every week, and hundreds of millions of votes over the season, the power of true fans of ‘American Idol’ dwarfs any attempt of people trying to gain notoriety,” the statement said. “Despite the press coverage, these campaigns don’t affect who moves forward in the competition.”
Mr. Stern, through a spokesman, declined to be interviewed for this article.
Unlike Mr. Stern, Mr. Della Terza, a community college teacher near Chicago, said he did not want to destroy “Idol.”
“We’re not out to take the show down,” Mr. Della Terza said in a telephone interview. “We like the show. We want to keep around the guy we think is funny and corny.” His aim, he said, was simply to spice up the show by toying with the results, keeping what he calls the “cheesiest” contestants on for as long as possible.
In a recent interview on Mr. Stern’s radio show, Mr. Della Terza said he understood that his efforts might be affecting contestants who are better singers. “Everyone tries to say we’re crushing dreams with what we’re doing, but we’re trying to help Sanjaya’s dreams,” he said. “He wants to be the American Idol too.”
Ms. Hudson, coincidentally, was the first contestant to be recommended for support on votefortheworst.com, something that is not lost on Mr. Della Terza.
“We picked her the first week because of her crazy outfits and over-the-top singing,” he recalled. But she improved, and the site switched its recommendation to another contestant. Last year the site also picked Taylor Hicks, the eventual winner, as the worst performer when five competitors were left.
“If we had not recommended him, maybe he wouldn’t have won,” Mr. Della Terza said.
It is unclear how many voters have been influenced either by Mr. Stern or the Web site. Sirius has six million subscribers but does not release listener figures for its individual shows. According to Mr. Della Terza, votefortheworst.com had been receiving a million or so hits per “Idol” show this season; that number jumped to more than three million after his first appearance on Mr. Stern’s show.
Now, Mr. Della Terza said, the site will stay with Mr. Malakar for the duration, even though he thinks there is no chance he will win. (The bookmakers at bodog.com have placed 25-to-1 odds on Mr. Malakar’s winning the competition; the favorite, Melinda Doolittle, is listed at 4-to-5.)
“Even if by some miracle we get him to the final two,” Mr. Della Terza said, “I think the rest of America will be so outraged by the possibility of him winning that they will vote against him.”
How to Improve It? Ask Those Who Use It
DR. NATHANIEL SIMS, an anesthesiologist at Massachusetts General Hospital, has figured out a few ways to help save patients’ lives.
In doing so, he also represents a significant untapped vein of innovation for companies.
Dr. Sims has picked up more than 10 patents for medical devices over his career. He ginned up a way to more easily shuttle around the dozen or more monitors and drug-delivery devices attached to any cardiac patient after surgery, with a device known around the hospital as the “Nat Rack.”
His best innovation to date, he says, involved modifying a drug infusion pump routinely used in hospitals to dispense the proper doses of medicine. Dr. Sims, an accomplished pilot, noticed in the mid-1980s that he could obtain navigation information from regularly updated databases. He wondered why doctors couldn’t use a device preprogrammed with the necessary data to figure out dosages themselves. From 1987 to 1992, he and a small team built an electronic device that worked with an existing pump to provide patients with the correct does of the proper drug. Alaris Medical Systems was the first established medical supply firm to use the technology.
David L. Schlotterbeck, the chief executive of Alaris, bet the company on the device. It was a good wager. The smart pump now brings in $700 million in sales — more than Alaris’s overall revenue of $534 million in 2003, the year before the company was sold to Cardinal Health.
What Dr. Sims did is called user-driven innovation by Eric von Hippel, a professor at the Massachusetts Institute of Technology’s Sloan School of Management. Mr. von Hippel is the leading advocate of the value of letting users of products modify them or improve them, because they may come up with changes that manufacturers never considered. He thinks that this could help companies develop products more quickly and inexpensively than with their internal design teams.
“It could drive manufacturers out of the design space,” Mr. von Hippel says.
It is a difficult idea for research and development departments to accept, but one of his studies found that 82 percent of new capabilities for scientific instruments like electron microscopes were developed by users.
Citizen product design is still unsung, but it has already become a force in software, especially gaming software. “Counter-Strike,” a player-created “mod” (for modification to the original game) of “Half-Life,” became as popular as the original game. Apache, the popular open-source Web server software, or the Firefox Internet browser, with its thousands of add-ons and plug-ins, also depend on users to develop innovations. Large companies like I.B.M. are increasingly turning to open-source techniques in their own software development.
It may also drive economic growth, Mr. von Hippel says. While Dr. Sims has no interest in starting a company, many people like him will do exactly that. Burton Snowboards, for instance, grew out of modifications that Jake Burton Carpenter made to a product called the Snurfer. He added a binding for the feet so that Snurfer riders no longer had to guide it by a rope on its nose.
SawStop makes a table saw that automatically stops within five milliseconds when it comes into contact with a user’s finger or thumb. The blade leaves the user with a small nick or cut, but the digit remains intact. It was invented by Stephen Gass, a patent lawyer who liked woodworking and thought that making a table saw safer was an interesting challenge.
One problem with the user-innovation model is that it can run into intellectual property rights protections. But the potential for creating new companies has led the government of Denmark to establish user-driven innovation as a policy. It found that Danish companies tended not to push for technological innovation, so user innovation may be the way to help them compete more effectively in a global economy.
Denmark may be the perfect testing ground for citizen product design, says Christopher Lettl, who six months ago left his native Germany to become professor of user-driven innovation at the University of Aarhus School of Business in Denmark. He thinks that Danish culture’s focus on the concept of “janteloven,” which holds that no person is better than another, may make companies more open to ideas from their users. The Danish company Lego is famous for tapping customers to help develop its Mindstorms NXT robotics kit.
Skeptics argue that Denmark is both small — population, 5.4 million — and a backwater of innovation, and thus has little to lose in trying something new. They might also point out that even in Denmark, Mr. von Hippel’s ideas are up against more conventional forms of user-aided design, such as sending anthropologists to study how people use products in their daily lives. Companies then translate their research into new designs.
Even some of Mr. von Hippel’s acolytes remain cautious. “A lot of this is still in the category of, ‘You could imagine this working out really well,’ ” says Saul T. Griffith, who as an M.I.T. engineering student was part of a group of kite-surfers who developed products for their sport that have since become commercialized. Mr. von Hippel wrote about Mr. Griffith in his 2005 book, “Democratizing Innovation.”
Still, Mr. Griffith can cite a long tradition of user design. One of his favorite examples comes from the title article in Tom Wolfe’s 1965 book, “The Kandy-Kolored Tangerine-Flake Streamline Baby,” which chronicled car customizers whose innovations — tailfins, double headlights, low-slung bodies — were later adopted by Detroit. Mr. Griffith says that even now, millions of people modify their cars, far more people than the world’s automakers could ever employ in research and development.
There is currently no effective way for companies to harness the ideas of those millions. But the Web — itself created by Tim Berners-Lee, an Internet user looking to do something new — seems to offer an excellent potential idea-gatherer. Mr. Griffith’s industrial design firm, Squid Labs, last year spun off a do-it-yourself community site on the Web called the Instructables, which features items as diverse as the Minty Boost iPod power source, dachshund wheelchairs and guns made entirely of K’nex toys, along with detailed instructions on how to build them. The Instructables intends to offer software to companies that want to build communities of citizen product developers.
Mr. von Hippel, who has spent 30 years waiting for his ideas to take hold, says that as user communities like the Instructables spread, they will dominate innovation. He calls them “the dark matter of innovation.”
User-driven innovation may still be in its infancy, but it is clear that companies should keep an eye open to whether something is rosy in the state of Denmark.
Artificial Intelligence, With Help From the Humans
COMPUTERS still do some things very poorly. Even when they pool their memory and processors in powerful networks, they remain unevenly intelligent. Things that humans do with little conscious thought, such as recognizing patterns or meanings in images, language or concepts, only baffle the machines.
These lacunae in computers’ abilities would be of interest only to computer scientists, except that many individuals and companies are finding it harder to locate and organize the swelling mass of information that our digital civilization creates.
The problem has prompted a spooky, but elegant, business idea: why not use the Web to create marketplaces of willing human beings who will perform the tasks that computers cannot? Jeff Bezos, the chief executive of Amazon.com, has created Amazon Mechanical Turk, an online service involving human workers, and he has also personally invested in a human-assisted search company called ChaCha. Mr. Bezos describes the phenomenon very prettily, calling it “artificial artificial intelligence.”
“Normally, a human makes a request of a computer, and the computer does the computation of the task,” he said. “But artificial artificial intelligences like Mechanical Turk invert all that. The computer has a task that is easy for a human but extraordinarily hard for the computer. So instead of calling a computer service to perform the function, it calls a human.”
Mechanical Turk began life as a service that Amazon itself needed. (The name recalls a famous 18th-century hoax, where what seemed to be a chess-playing automaton really concealed a human chess master.) Amazon had millions of Web pages that described individual products, but it wanted to weed out the duplicate pages. Software could help, but algorithmically eliminating all the duplicates was impossible, according to Mr. Bezos. So the company began to develop a Web site where people would look at product pages and be paid a few cents for every duplicate page they correctly identified.
Mr. Bezos figured that what had been useful to Amazon would be valuable to other businesses, too. The company opened Mechanical Turk as a public site in November 2005. Today, there are more than 100,000 “Turk Workers” in more than 100 countries who earn micropayments in exchange for completing a wide range of quick tasks called HITs, for human intelligence tasks, for various companies.
PriceGrabber.com, a comparison shopping site, uses Mechanical Turk to match images to the product pages. “Harnessing the power of this enormous, decentralized work force allows us to obtain images for a wide variety of items in a fraction of the time it would have taken to do it ourselves,” said Sagar M. Jethani, PriceGrabber’s director of content development and community.
Mechanical Turk’s customers are corporations. By contrast, ChaCha.com, a start-up in Carmel, Ind., uses artificial artificial intelligence — sometimes also called crowdsourcing — to help individual computer users find better results when they search the Web. ChaCha, which began last year, pays 30,000 flesh-and-blood “guides” working from home or the local coffee shop as much as $10 an hour to direct Web surfers to the most relevant resources.
Amazon makes money from Mechanical Turk by charging companies 10 percent of the price of a successfully completed HIT. For simple HITs that cost less than 1 cent, Amazon charges half a cent. ChaCha intends to make money the way most other search companies do: by charging advertisers for contextually relevant links and advertisements.
Harnessing the collective wisdom of crowds isn’t new. It is employed by many of the “Web 2.0” social networks like Digg and Del.icio.us, which rely on human readers to select the most worthwhile items on the Web to read. But creating marketplaces of mercenary intelligences is genuinely novel.
What is it like to be an individual component of these digital, collective minds?
To find out, I experimented. After registering at www.mturk.com, I was confronted with a table of HITs that I could perform, together with the price that I would be paid. I first accepted a job from ContentSpooling.net that asked me to write three titles for an article about annuities and their use in retirement planning. Then I viewed a series of images apparently captured from a vehicle moving through the gray suburbs of North London, and, at the request of Geospatial Vision, a division of the British technology company Oxford Metrics Group, identified objects like road signs and markings.
For all this, my Amazon account was credited the lordly sum of 12 cents. The entire experience lasted no more than 15 minutes, and from my point of view, as an occluded part of the hive-mind, it made no sense at all.
I was also interested in learning what it was like to be a consumer of crowdsourcing. So at 2:40 p.m. on March 14, I asked ChaCha, “Who was Evelyn Waugh’s commanding officer in the Commandos during World War II?” In an instant-messaging window, CandieSue22087 immediately welcomed me to ChaCha and asked me to be patient.
At 2:44, CandieSue threw up her virtual hands and transferred me to another guide, Tressie57635, who referred me to an academic paper on “suffixal sound symbolism in the novels of Evelyn Waugh.” When I protested, Tressie complained that it was a hard search, and at 2:49 she gave up, typing that I might do better with yet another guide. When I agreed, Tressie accidentally ended the search altogether — but not before serving me a page of 12 search results, not one of which was relevant.
A quick search on Google quickly provided the right answer.
THERE have been two common objections to artificial artificial intelligence. The first, confirmed by my own experiences searching on ChaCha, is that the networks are no more intelligent than their smartest members. Katharine Mieszkowski, writing last year on Salon.com, raised the second, more serious criticism. She saw Mechanical Turk as a kind of virtual sweatshop. “There is something a little disturbing about a billionaire like Bezos dreaming up new ways to get ordinary folk to do work for him for pennies,” she wrote.
The ever-genial Mr. Bezos dismisses the criticism. “MTurk is a marketplace where folks who have work meet up with folks who want to do work,” he said.
Why do people become Turk Workers and ChaCha Guides? In poor countries, the money earned could offer a significant contribution to a family’s wealth. But even Mr. Bezos concedes that Turk Workers from rich countries probably can’t live on the small sums involved. “The people I’ve seen commenting on blogs seem mostly to be using MTurk as a supplemental form of income,” he said.
Mitch Fernandez, 38, a disabled former United States Army linguist, said by e-mail that he became a Turk Worker for various reasons: “At first, I was just curious about the idea of crowdsourcing.” But he said he soon found that by working about two hours a day, he could often earn more than $100 a week. In the last nine months he made around $4,000, which he used to buy a high-definition television, a DVD player and a new subwoofer — all from Amazon.com.
“I do this primarily for the money, but I also view it as a form of therapy to get me used to working again.” he explained. “The experience has gotten me thinking about pursuing a library science degree.”
We probably have at least another 25 years before computers are more powerful than human brains, according to the most optimistic artificial intelligence experts. Until then, people will be able to sell their idle brains to the companies and people who need the special processing power that they alone possess through marketplaces like Mechanical Turk and ChaCha.
Theater’s Alive With the Sound of Laptops
AMONG the uncommon pleasures of the 2003 Broadway revival of “Wonderful Town” was that you could actually see the orchestra, arrayed like a decorative garland of brass and polished wood across an onstage bridge. Another was that there was enough of an orchestra to be worth seeing. Nearly matching the original 1953 instrumentation, the show’s producers sprang for a hefty complement of 24 musicians. At least at first.
After a while, though, as is not unusual with shows anxious to maximize profit, the ensemble was cut back to 20, still well above the Al Hirschfeld Theater’s house minimum of 14 (including conductor) as stipulated by agreement between the musicians union and the league of Broadway producers. If not exactly a symphony, this was a number capable of producing, with amplification, a moderately rich sound not unlike what the show’s composer, Leonard Bernstein, might have imagined when he wrote it.
But audiences attending a performance of the production’s nonunion tour — which stopped last Sunday at the Tilles Center on Long Island and continues on the road through May — are seeing, and hearing, something quite different. The orchestra is down to 12 traditional instrumentalists, including four reeds and three horns, with only a lonely violin and cello to sweeten the mix. So why does it seem as dense as it did on Broadway? Why is the string sound so big, if not exactly Bernstein-y?
That would be the work of musician No. 13, sitting behind the reeds at a Qwerty keyboard attached to an ordinary PC running a software program called Notion and wired into the sound system. This copy of Notion has been loaded with all the string parts for “Wonderful Town,” broken down in individual instrumental lines that can be muted or played at will, all triggered by a finger tapping the rhythm on any key in the A-S-D-F row. If the conductor speeds up, so does the finger, and so does the music Notion produces. If the leading lady lingers over a note, or skips six bars, the finger can too.
Small as it is, that one finger, doing the work of hundreds, is the center of a controversy now playing out in amateur theaters and national markets and coming soon to Broadway. Already the musicians union has dug in its heels against the use of Notion and similar products. “We’re not Luddites opposed to technology,” Mary Landolfi, president of Local 802, the American Federation of Musicians, said recently. “But we feel that people come to the theater to hear live entertainment, and they should have it.”
Critics have been denouncing nonlive — or, more accurately, nontraditional — instruments in Broadway pits for decades. At first the complaints were about the awful or just unwelcome sounds they made. Electric guitars and organs, imported from the world of pop music to go with the pop scores of the 1960s, offended purists, who mourned the loss of European-style orchestrations, heavy on strings and light on rhythm. When synthesizers started replacing instruments that producers wouldn’t pay for or that couldn’t fit in the ever-shrinking coffins to which orchestras were consigned, criticism shifted to the poor quality of the mimicry. Synthesized trumpets sounded like oboes and oboes like burglar alarms.
The mimicry has improved tremendously in recent years. If the current production of “The Sound of Music” in London has a rich, symphonic sound, it’s not just because of the string players (there are only 6, reduced from the original 12); it’s because of three keyboards programmed to sound like strings. This feels wrong, but the proof is in the experience; and at least such patches, as they’re called, require live players. At many small ballet companies around the United States, the orchestra is a tape, and in many schools putting on musicals, it’s a pirated, karaoke-style CD. Even Broadway shows use click tracks and prerecorded accompaniment for parts of some numbers.
But Notion and its more established competitor, a product made by Realtime Music Solutions and marketed under the names Sinfonia, OrchExtra and InstrumentalEase, represent a huge advance on those limited technologies. They are therefore a huge threat to advocates of entirely “live” music. For one thing, they are cheaper and more compact than older systems, which required a vanful of equipment and a dedicated tech nerd and cost thousands of dollars a week to rent. Notion comes on CDs that sell for about $600.
These products are also cheaper and more compact than human musicians. They do not get sick or have bad nights. And after years of gradual improvements, their sound is now good enough to fool many nonexperts, especially since they are almost always used, as recommended, alongside traditional instruments. Their processing capacities are large enough that details of articulation and attack, vibrato and decay, can be reasonably approximated, if not gorgeously rendered. (Brass and bass drum, I mean you.) And the notes themselves are no longer digitally created but are based on thousands of samples from real instrumentalists. Notion’s main sample source is the London Symphony Orchestra.
Why London? No American ensemble would cooperate. Nor has Notion been used on Broadway. The closest it’s come was an industrial show for Enterprise Rent-a-Car at the Broadway Marriot Marquis hotel in October, where Sutton Foster and other musical stars sang with a 26-piece orchestra pumped up to symphonic density. No one seemed to notice the ringer.
Sinfonia has come even closer. In 2004 it drew protests when used (along with several traditional instruments) to accompany a short-lived Off Broadway musical called “The Joys of Sex.” A year earlier, in anticipation of Local 802’s strike against Broadway producers, shows including “Les Misérables,” “Thoroughly Modern Millie” and “Oklahoma!” prepared Sinfonia versions of their scores as a precaution — and perhaps as a provocation. But no audience ever heard them; the strike lasted four days.
The resulting contract expired three weeks ago, on March 4, but the house minimums stipulated within it remain in effect through 2013. Still, because those minimums are often breached by “special situations” (almost anything can be a special situation), and because emulation technology is not specifically banned in the old contract nor likely to be banned in the new one now being negotiated, the union remains wary. In picketing and press releases, it refers to products like Notion and Sinfonia as “virtual orchestra machines”: a kind of alien in the pit. (Jeff Lazarus, the chief executive of Realtime, prefers the term instruments, and said the union’s tactics amount to “musical gerrymandering.”) Ms. Landolfi, of Local 802, further asserts that the technology interferes “with the ability of creative teams to decide artistic issues without undue economic pressure.”
Maybe. In an informal poll I asked members of such creative teams to consider this: You’re reviving a show that depends on full orchestral sound, like “South Pacific,” which is in fact being revived in 2008. The maximum number of instrumentalists that the budget (and the pit) can accommodate is 20, far fewer than the original 31, but higher than the theater’s minimum of, say, 15. Having preserved jobs by hiring those 20 musicians, would you then consider using a technology like Sinfonia or Notion to push the sound to symphonic levels?
Music directors were clear that they would not. Ted Sperling, who conducted “The Light in the Piazza” with 15 acoustic instruments, said, “I’m a believer in making the most with what you’re given, not pretending that something’s there when it’s not.” Paul Gemignani, who will lead a “South Pacific” with full symphony orchestra at the Hollywood Bowl this August, agreed, saying he’d “respectfully bow out” if the producers wouldn’t reorchestrate for “all live instruments.” He added, “To me it would be like doing ‘Death of a Salesman’ with one great big star and the rest of the cast on a recording.”
Mr. Gemignani has lived and died by that sword; the “Pacific Overtures” he conducted at the Roundabout in 2004 employed 7 musicians, down from 22 in the 1976 original; though the 7 were live, they sounded skimpy and, as processed through the sound system, even artificial at times. For that reason most producers I surveyed and, surprisingly, most composers, weren’t so quick to disavow the new technology.
“A machine-generated orchestra isn’t such a terrible proposition, if the music director and sound designer work in coordination,” said the composer Michael John LaChiusa. “Do the machines provide the human touch of a live musician? Not to my ear, but because of miking, many of the live pit orchestras on Broadway sound canned already, sometimes even pre-taped. To use or not to use a machine to supplement, or even replace, the orchestra for a revival isn’t an ethical or moral argument. It’s not even a sentimental one. It’s a question of aesthetics.”
Many artists, or their heirs, seem to have answered that aesthetic question. Sinfonia has now been used in the West End (but not the Broadway) production of “Les Misérables” and in American non-Equity tours of “Oliver!” and “Miss Saigon.” The Gershwin estate authorized a Sinfonia-enhanced production of “Porgy and Bess” that visited minor markets from 2001 to 2005. Notion can be heard not only in “Wonderful Town” but also in ballet and Meat Loaf concerts everywhere.
Whether jobs are being lost as a result is a matter of interpretation. Yes, “Wonderful Town” has 11 fewer musicians now than it did when it opened on Broadway, but the show probably wouldn’t have toured at all had it been required to maintain the full complement. Keith Levenson, the production’s music supervisor and a paid adviser to Notion, said he is in that sense saving jobs, not cutting them. (He pointed out that Notion too is played by a live musician.) But union representatives call such arguments naïve; what if the producers of the next “Wonderful Town,” having heard how this one sounds with Notion, decide they can only afford nine musicians, or five?
Some see the slippery slope as most precarious not at the uppermost levels of production but at the lowest. Ms. Landolfi complained that the manufacturers are marketing the technology heavily to schools. And it’s true that after years of experimentation and internal debate, both R&H Theatricals (a division of the Rodgers & Hammerstein Organization) and Music Theater International, leading licensers of shows for amateur and stock production, now allow customized versions of Sinfonia to be rented with some of their properties. For rehearsals customers can use R&H’s AccompanEase or M.T.I.’s RehearScore. For full performance there are products called InstrumentalEase and OrchExtra. Perhaps the most telling portmanteau is one that was proposed in an employee contest to name the orchestra product at R&H: PitBull.
But philosophical anxieties (what would Rodgers, he of the sweeping string tuttis, think?) and musical misgivings eventually gave way to technical advancements and demand from amateur licensees, especially schools. Customers now pay about $1,400 for a four-week rental, which includes a two-octave keyboard, connection equipment and an Apple MacBook preloaded with the score of the show being performed. (M.T.I. offers 18 of its most popular titles, R&H five, with many more in development.) A knowledgeable musician, especially one savvy about computers, can have it playing within minutes.
Customers clearly love the result. Peter Hoopes, director of technology as well as conductor of the annual musical at St. Andrew’s, a co-ed boarding school in Delaware, said that in previous years he’d had to make do with whatever instruments his volunteers happened to play. This year, having ordered InstrumentalEase for a production of “Annie Get Your Gun,” he turned on the MacBook, clicked “mute” for the instruments he had in the pit and produced the remainder of the orchestration by tapping while he conducted. He was astonished, as were his musicians.
“When they first heard it,” Mr. Hoopes said, “one of the comments was, ‘Well, I guess you don’t really need us here anymore.’ And it did cross my mind that if I wanted a perfect sound, I could just eliminate them. But we’re a small community, and part of the thrill is that everyone’s contributing. On the other hand, it was nice knowing that if one of the players got sick, I could just unmute that part and go right on.”
No one did get sick, and by the time “Annie Get Your Gun” opened on Feb. 23, Mr. Hoopes said, not only had he created a seamless ensemble featuring sounds he could never previously have mustered (try finding a harpist at a boarding school) but his 10 instrumentalists had improved by trying to match the quality of the software.
This is the ideal situation; other schools may prove more willing to ditch their squawky pubescent clarinetists. The licensers’ requirement that live musicians be used with the software is largely unenforceable. It’s partly for this reason that the union opposes these products even at the amateur level. “We think they really undermine the idea of music education,” said Ms. Landolfi, “which undermines the audience for Broadway and classical music. Now the schools can say, ‘We don’t need a music program because we can just buy this very affordable machine.’ But in the end what kind of cultural life would we have?”
A valid concern, and one shared by the manufacturers and licensers, most of whom are musicians themselves. They admit to ambivalence, but argue that the new technology is helping to build future audiences by allowing more shows to be produced and by accustoming young people to sounds they no longer have the chance to hear on a regular basis. (Lori Jarrett, the chief executive of Notion Music, said she hopes her product will promote “a renaissance of more sophisticated art.”) Sure, everyone would prefer full orchestras in grade school and Broadway minimums of 35. But on that score perhaps, Richard Rodgers has left the building.
“Technology is always a threat to live music,” said Bruce Pomahac, director of music at Rodgers & Hammerstein. “When the pianoforte replaced the harpsichord, every harpsichordist was out of a job. And we all fall in love with the art we grew up with. But this is not about putting musicians out of work. They’re already out of work. This is about trying to get back, in some new form, something that’s lost.”
That may end up being the best the musicians union can hope for too. Could we one day find our orchestra pits filled with tuxedoed men and gowned women tapping at laptops? Mr. Lazarus, of Realtime, said he doesn’t want to wave a red flag at the union, but that the products are already working — and getting better.
Anyway, don’t expect labor fireworks just yet. Wait until July, when the contract with Broadway’s stage crews expires. Because Sinfonia doesn’t just mimic cymbals and saxophones. It can be programmed to control scenery too.
IN an advertising campaign that began last week, Nissan left 20,000 sets of keys in bars, stadiums, concert halls and other public venues. Each key ring has a tag that says: “If found, please do not return. My next generation Nissan Altima has Intelligent Key with push-button ignition, and I no longer need these.”
This campaign is clever, but not particularly original.
It was 1997, and the man who was crouched on the sidewalk at 68th and Broadway in New York City was one of the most pathetic souls I’d ever seen. His limbs were twisted in what appeared to be arthritic agony and tears were streaming down his face. “Please,” he whimpered. “Please, somebody help me.”
Most passers-by did what they were named for, but my wife and I stopped. The man looked up. “Please,” he sobbed. “I just want to go home.” My hand needed no guidance from my brain as it reached into my wallet and extracted $10. “Thank you,” he said as I handed him the money. “Thank you so much.” My wife and I mumbled some embarrassed words and walked on.
We hadn’t gone a block when she tugged my sleeve. “Maybe we should have gotten him into a cab,” she said. “He could barely stand up. He might need help. We should go back to see.” My wife is the patron saint of lost kittens and there is no arguing, so we went back to see. And what we saw was our horribly crippled friend walking briskly and happily up 68th Street, opening the door to a late-model car, getting in and driving away after what was apparently a short day of theatrical work.
I know two things now that I didn’t know then.
First, I now know that my hand did what human hands were designed to do. Research suggests that we are hard-wired with a strong and intuitive moral impulse — an urge to help others that is every bit as basic as the selfish urges that get all the press. Infants as young as 18 months will spontaneously comfort those who appear distressed and help those who are having difficulty retrieving or balancing objects. Chimpanzees will do the same, though not so reliably, which has led scientists to speculate about the precise point in our evolutionary history at which we became the “hypercooperative” species that out-nices the rest.
The second thing I know now that I didn’t know then is that this was the most damaging crime I had ever experienced. Like most residents of large cities, I’d been a victim before — of burglary once, of vandalism several times. But this was different. The burglars and vandals had taken advantage of my forgetfulness (“Why didn’t I double lock the door?”) and taught me to be better.
But the actor on 68th Street had taken advantage of my helpfulness and taught me to be worse. The hand that had automatically reached for my wallet had been slapped, and once slapped was twice shy. I’ve never again given money to a stranger without scrutinizing him for the signs that distinguish suffering from its imitation. And because I don’t know what those signs are, I typically just walk by.
Now corporate America has taken a lesson from the guild of shameless grifters. Nissan’s plan to leave those 20,000 sets of keys in public venues is every bit as crafty as the fraudulent performance that a decade ago left me with holes in both my pocketbook and soul. There is no selfish reason to bend down and pick up a key ring, but Nissan knows that we will bend without thinking because the impulse to help is bred into our marrow. Our best instinct will be awakened by a key ring and then punished by a commercial. Like rubes throughout the ages, we will be lured by a false cry of distress and quickly cured of our innocence and compassion.
We are used to commercial tricks that play on our fears. The official-looking letter marked “Verification Audit” is actually a magazine subscription renewal form; the credit card company’s ominous call to “discuss your account” is actually an attempt to sell new services.
Should we now get used to commercial tricks that play on our humanity? How would we feel about a device planted in trash bins that screams “I’m stuck!” until the lid is opened, at which point it continues, “Stuck in a dead end job, that is — and if you are too, then let us show you how to make millions in real estate with no money down”? Is it O.K. to send a thousand doleful puppies into the streets with tags that say: “Thanks for checking. And speaking of checking, our bank charges no monthly fees”?
What happens to us when greed masquerades as need, when cries for help become casting calls for chumps, when our most noble actions make us patsies? “You put an idea out there and seed it,” said the president of the advertising agency that came up with Nissan’s key ring ploy. “And people carry it for you.” Indeed they do. The idea being seeded and carried in this case is that the world cries wolf, that our moral impulse betrays us and that smart people should keep on walking.
New York City Police Spied Broadly Before G.O.P. Convention
For at least a year before the 2004 Republican National Convention, teams of undercover New York City police officers traveled to cities across the country, Canada and Europe to conduct covert observations of people who planned to protest at the convention, according to police records and interviews.
From Albuquerque to Montreal, San Francisco to Miami, undercover New York police officers attended meetings of political groups, posing as sympathizers or fellow activists, the records show.
They made friends, shared meals, swapped e-mail messages and then filed daily reports with the department’s Intelligence Division. Other investigators mined Internet sites and chat rooms.
From these operations, run by the department’s “R.N.C. Intelligence Squad,” the police identified a handful of groups and individuals who expressed interest in creating havoc during the convention, as well as some who used Web sites to urge or predict violence.
But potential troublemakers were hardly the only ones to end up in the files. In hundreds of reports stamped “N.Y.P.D. Secret,” the Intelligence Division chronicled the views and plans of people who had no apparent intention of breaking the law, the records show.
These included members of street theater companies, church groups and antiwar organizations, as well as environmentalists and people opposed to the death penalty, globalization and other government policies. Three New York City elected officials were cited in the reports.
In at least some cases, intelligence on what appeared to be lawful activity was shared with police departments in other cities. A police report on an organization of artists called Bands Against Bush noted that the group was planning concerts on Oct. 11, 2003, in New York, Washington, Seattle, San Francisco and Boston. Between musical sets, the report said, there would be political speeches and videos.
“Activists are showing a well-organized network made up of anti-Bush sentiment; the mixing of music and political rhetoric indicates sophisticated organizing skills with a specific agenda,” said the report, dated Oct. 9, 2003. “Police departments in above listed areas have been contacted regarding this event.”
Police records indicate that in addition to sharing information with other police departments, New York undercover officers were active themselves in at least 15 places outside New York — including California, Connecticut, Florida, Georgia, Illinois, Massachusetts, Michigan, Montreal, New Hampshire, New Mexico, Oregon, Tennessee, Texas and Washington, D.C. — and in Europe.
The operation was mounted in 2003 after the Police Department, invoking the fresh horrors of the World Trade Center attack and the prospect of future terrorism, won greater authority from a federal judge to investigate political organizations for criminal activity.
To date, as the boundaries of the department’s expanded powers continue to be debated, police officials have provided only glimpses of its intelligence-gathering.
Now, the broad outlines of the pre-convention operations are emerging from records in federal lawsuits that were brought over mass arrests made during the convention, and in greater detail from still-secret reports reviewed by The New York Times. These include a sample of raw intelligence documents and of summary digests of observations from both the field and the department’s cyberintelligence unit.
Paul J. Browne, the chief spokesman for the Police Department, confirmed that the operation had been wide-ranging, and said it had been an essential part of the preparations for the huge crowds that came to the city during the convention.
“Detectives collected information both in-state and out-of-state to learn in advance what was coming our way,” Mr. Browne said. When the detectives went out of town, he said, the department usually alerted the local authorities by telephone or in person.
Under a United States Supreme Court ruling, undercover surveillance of political groups is generally legal, but the police in New York — like those in many other big cities — have operated under special limits as a result of class-action lawsuits filed over police monitoring of civil rights and antiwar groups during the 1960s. The limits in New York are known as the Handschu guidelines, after the lead plaintiff, Barbara Handschu.
“All our activities were legal and were subject in advance to Handschu review,” Mr. Browne said.
Before monitoring political activity, the police must have “some indication of unlawful activity on the part of the individual or organization to be investigated,” United States District Court Judge Charles S. Haight Jr. said in a ruling last month.
Christopher Dunn, the associate legal director of the New York Civil Liberties Union, which represents seven of the 1,806 people arrested during the convention, said the Police Department stepped beyond the law in its covert surveillance program.
“The police have no authority to spy on lawful political activity, and this wide-ranging N.Y.P.D. program was wrong and illegal,” Mr. Dunn said. “In the coming weeks, the city will be required to disclose to us many more details about its preconvention surveillance of groups and activists, and many will be shocked by the breadth of the Police Department’s political surveillance operation.”
The Police Department said those complaints were overblown.
On Wednesday, lawyers for the plaintiffs in the convention lawsuits are scheduled to begin depositions of David Cohen, the deputy police commissioner for intelligence. Mr. Cohen, a former senior official at the Central Intelligence Agency, was “central to the N.Y.P.D.’s efforts to collect intelligence information prior to the R.N.C.,” Gerald C. Smith, an assistant corporation counsel with the city Law Department, said in a federal court filing.
Balancing Safety and Surveillance
For nearly four decades, the city, civil liberties lawyers and the Police Department have fought in federal court over how to balance public safety, free speech and the penetrating but potentially disruptive force of police surveillance.
After the Sept. 11 attacks, Raymond W. Kelly, who became police commissioner in January 2002, “took the position that the N.Y.P.D. could no longer rely on the federal government alone, and that the department had to build an intelligence capacity worthy of the name,” Mr. Browne said.
Mr. Cohen contended that surveillance of domestic political activities was essential to fighting terrorism. “Given the range of activities that may be engaged in by the members of a sleeper cell in the long period of preparation for an act of terror, the entire resources of the N.Y.P.D. must be available to conduct investigations into political activity and intelligence-related issues,” Mr. Cohen wrote in an affidavit dated Sept. 12, 2002.
In February 2003, the Police Department, with Mayor Michael R. Bloomberg’s support, was given broad new authority by Judge Haight to conduct such monitoring. However, a senior police official must still determine that there is some indication of illegal activity before an inquiry is begun.
An investigation by the Intelligence Division led to the arrest — coincidentally, three days before the convention — of a man who spoke about bombing the Herald Square subway station. In another initiative, detectives were stationed in Europe and the Middle East to quickly funnel information back to New York.
When the city was designated in February 2003 as the site of the 2004 Republican National Convention, the department had security worries — in particular about the possibility of a truck bomb attack near Madison Square Garden, where events would be held — and logistical concerns about managing huge crowds, Mr. Browne said.
“We also prepared to contend with a relatively small group of self-described anarchists who vowed to prevent delegates from participating in the convention or otherwise disrupt the convention by various means, including vandalism,” Mr. Browne said. “Our goal was to safeguard delegates, demonstrators and the general public alike.”
In its preparations, the department applied the intelligence resources that had just been strengthened for fighting terrorism to an entirely different task: collecting information on people participating in political protests.
In the records reviewed by The Times, some of the police intelligence concerned people and groups bent on causing trouble, but the bulk of the reports covered the plans and views of people with no obvious intention of breaking the law.
By searching the Internet, investigators identified groups that were making plans for demonstrations. Files were created on their political causes, the criminal records, if any, of the people involved and any plans for civil disobedience or disruptive tactics.
From the field, undercover officers filed daily accounts of their observations on forms known as DD5s that called for descriptions of the gatherings, the leaders and participants, and the groups’ plans.
Inside the police Intelligence Division, daily reports from both the field and the Web were summarized in bullet format. These digests — marked “Secret” — were circulated weekly under the heading “Key Findings.”
On Jan. 6, 2004, the intelligence digest noted that an antigentrification group in Montreal claimed responsibility for hoax bombs that had been planted at construction sites of luxury condominiums, stating that the purpose was to draw attention to the homeless. The group was linked to a band of anarchist-communists whose leader had visited New York, according to the report.
Other digests noted a planned campaign of “electronic civil disobedience” to jam fax machines and hack into Web sites. Participants at a conference were said to have discussed getting inside delegates’ hotels by making hair salon appointments or dinner reservations. At the same conference, people were reported to have discussed disabling charter buses and trying to confuse delegates by switching subway directional signs, or by sealing off stations with crime-scene tape.
A Syracuse peace group intended to block intersections, a report stated. Other reports mentioned past demonstrations where various groups used nails and ball bearings as weapons and threw balloons filled with urine or other foul liquids.
The police also kept track of Richard Picariello, a man who had been convicted in 1978 of politically motivated bombings in Massachusetts, Mr. Browne said.
At the other end of the threat spectrum was Joshua Kinberg, a graduate student at Parsons School of Design and the subject of four pages of intelligence reports, including two pictures. For his master’s thesis project, Mr. Kinberg devised a “wireless bicycle” equipped with cellphone, laptop and spray tubes that could squirt messages received over the Internet onto the sidewalk or street.
The messages were printed in water-soluble chalk, a tactic meant to avoid a criminal mischief charge for using paint, an intelligence report noted. Mr. Kinberg’s bicycle was “capable of transferring activist-based messages on streets and sidewalks,” according to a report on July 22, 2004.
“This bicycle, having been built for the sole purpose of protesting during the R.N.C., is capable of spraying anti-R.N.C.-type messages on surrounding streets and sidewalks, also supplying the rider with a quick vehicle of escape,” the report said. Mr. Kinberg, then 25, was arrested during a television interview with Ron Reagan for MSNBC’s “Hardball” program during the convention. He was released a day later, but his equipment was held for more than a year.
Mr. Kinberg said Friday that after his arrest, detectives with the terrorism task force asked if he knew of any plans for violence. “I’m an artist,” he said. “I know other artists, who make T-shirts and signs.”
He added: “There’s no reason I should have been placed on any kind of surveillance status. It affected me, my ability to exercise free speech, and the ability of thousands of people who were sending in messages for the bike, to exercise their free speech.”
New Faces in Their Midst
A vast majority of several hundred reports reviewed by The Times, including field reports and the digests, described groups that gave no obvious sign of wrongdoing. The intelligence noted that one group, the “Man- and Woman-in-Black Bloc,” planned to protest outside a party at Sotheby’s for Tennessee’s Republican delegates with Johnny Cash’s career as its theme.
The satirical performance troupe Billionaires for Bush, which specializes in lampooning the Bush administration by dressing in tuxedos and flapper gowns, was described in an intelligence digest on Jan. 23, 2004.
“Billionaires for Bush is an activist group forged as a mockery of the current president and political policies,” the report said. “Preliminary intelligence indicates that this group is raising funds for expansion and support of anti-R.N.C. activist organizations.”
Marco Ceglie, who performs as Monet Oliver dePlace in Billionaires for Bush, said he had suspected that the group was under surveillance by federal agents — not necessarily police officers — during weekly meetings in a downtown loft and at events around the country in the summer of 2004.
“It was a running joke that some of the new faces were 25- to 32-year-old males asking, ‘First name, last name?’ ” Mr. Ceglie said. “Some people didn’t care; it bothered me and a couple of other leaders, but we didn’t want to make a big stink because we didn’t want to look paranoid. We applied to the F.B.I. under the Freedom of Information Act to see if there’s a file, but the answer came back that ‘we cannot confirm or deny.’ ”
The Billionaires try to avoid provoking arrests, Mr. Ceglie said.
Others — who openly planned civil disobedience, with the expectation of being arrested — said they assumed they were under surveillance, but had nothing to hide. “Some of the groups were very concerned about infiltration,” said Ed Hedemann of the War Resisters League, a pacifist organization founded in 1923. “We weren’t. We had open meetings.”
The war resisters publicly announced plans for a “die-in” at Madison Square Garden. They were arrested two minutes after they began a silent march from the World Trade Center site. The charges were dismissed.
The sponsors of an event planned for Jan. 15, 2004, in honor of the Rev. Dr. Martin Luther King Jr.’s birthday were listed in one of the reports, which noted that it was a protest against “the R.N.C., the war in Iraq and the Bush administration.” It mentioned that three members of the City Council at the time, Charles Barron, Bill Perkins and Larry B. Seabrook, “have endorsed this event.”
Others supporting it, the report said, were the New York City AIDS Housing Network, the Arab Muslim American Foundation, Activists for the Liberation of Palestine, Queers for Peace and Justice and the 1199 Bread and Roses Cultural Project.
Many of the 1,806 people arrested during the convention were held for up to two days on minor offenses normally handled with a summons; the city Law Department said the preconvention intelligence justified detaining them all for fingerprinting.
Mr. Browne said that 18 months of preparation by the police had allowed hundreds of thousands of people to demonstrate while also ensuring that the Republican delegates were able to hold their convention with relatively few disruptions.
“We attributed the successful policing of the convention to a host of N.Y.P.D. activities leading up to the R.N.C., including 18 months of intensive planning,” he said. “It was a great success, and despite provocations, such as demonstrators throwing faux feces in the faces of police officers, the N.Y.P.D. showed professionalism and restraint.”
Terror Database Has Quadrupled In Four Years
U.S. Watch Lists Are Drawn From Massive Clearinghouse
Each day, thousands of pieces of intelligence information from around the world -- field reports, captured documents, news from foreign allies and sometimes idle gossip -- arrive in a computer-filled office in McLean, where analysts feed them into the nation's central list of terrorists and terrorism suspects.
Called TIDE, for Terrorist Identities Datamart Environment, the list is a storehouse for data about individuals that the intelligence community believes might harm the United States. It is the wellspring for watch lists distributed to airlines, law enforcement, border posts and U.S. consulates, created to close one of the key intelligence gaps revealed after Sept. 11, 2001: the failure of federal agencies to share what they knew about al-Qaeda operatives.
But in addressing one problem, TIDE has spawned others. Ballooning from fewer than 100,000 files in 2003 to about 435,000, the growing database threatens to overwhelm the people who manage it. "The single biggest worry that I have is long-term quality control," said Russ Travers, in charge of TIDE at the National Counterterrorism Center in McLean. "Where am I going to be, where is my successor going to be, five years down the road?"
TIDE has also created concerns about secrecy, errors and privacy. The list marks the first time foreigners and U.S. citizens are combined in an intelligence database. The bar for inclusion is low, and once someone is on the list, it is virtually impossible to get off it. At any stage, the process can lead to "horror stories" of mixed-up names and unconfirmed information, Travers acknowledged.
The watch lists fed by TIDE, used to monitor everyone entering the country or having even a casual encounter with federal, state and local law enforcement, have a higher bar. But they have become a source of irritation -- and potentially more serious consequences -- for many U.S. citizens and visitors.
In 2004 and 2005, misidentifications accounted for about half of the tens of thousands of times a traveler's name triggered a watch-list hit, the Government Accountability Office reported in September. Congressional committees have criticized the process, some charging that it collects too much information about Americans, others saying it is ineffective against terrorists. Civil rights and privacy groups have called for increased transparency.
"How many are on the lists, how are they compiled, how is the information used, how do they verify it?" asked Lillie Coney, associate director of the Washington-based Electronic Privacy Information Center. Such information is classified, and individuals barred from traveling are not told why.
Sen. Ted Stevens (R-Alaska) said last year that his wife had been delayed repeatedly while airlines queried whether Catherine Stevens was the watch-listed Cat Stevens. The listing referred to the Britain-based pop singer who converted to Islam and changed his name to Yusuf Islam. The reason Islam is not allowed to fly to the United States is secret.
So is the reason Maher Arar, a Syrian-born Canadian, remains on the State Department's consular watch list. Detained in New York while en route to Montreal in 2002, Arar was sent by the U.S. government to a year of imprisonment in Syria. Canada, the source of the initial information about Arar, cleared him of all terrorism allegations last September -- three years after his release -- and has since authorized $9 million in compensation.
TIDE is a vacuum cleaner for both proven and unproven information, and its managers disclaim responsibility for how other agencies use the data. "What's the alternative?" Travers said. "I work under the assumption that we're never going to have perfect information -- fingerprints, DNA -- on 6 billion people across the planet. . . . If someone actually has a better idea, I'm all ears."
'Thousands of Messages'
The electronic journey a piece of terrorism data takes from an intelligence outpost to an airline counter is interrupted at several points for analysis and condensation.
President Bush ordered the intelligence community in 2003 to centralize data on terrorism suspects, and U.S. agencies at home and abroad now send everything they collect to TIDE. It arrives electronically as names to be added or as additional information about people already in the system.
The 80 TIDE analysts get "thousands of messages a day," Travers said, much of the data "fragmentary," "inconsistent" and "sometimes just flat-out wrong." Often the analysts go back to the intelligence agencies for details. "Sometimes you'll get sort of corroborating information," he said, "but many times you're not going to get much. What we use here, rightly or wrongly, is a reasonable-suspicion standard."
Each TIDE listee is given a number, and statistics are kept on nationality and ethnic and religious groups. Some files include aliases and sightings, and others are just a full or partial name, perhaps with a sketchy biography. Sunni and Shiite Muslims are the fastest-growing categories in a database whose entries include Saudi financiers and Colombian revolutionaries. U.S. citizens -- who Travers said make up less than 5 percent of listings -- are included if an "international terrorism nexus" is established. A similar exception for the administration's warrantless wiretap program came under court challenge from privacy and civil rights advocates.
Every night at 10, TIDE dumps an unclassified version of that day's harvest -- names, dates of birth, countries of origin and passport information -- into a database belonging to the FBI's Terrorist Screening Center. TIDE's most sensitive information is not included. The FBI adds data about U.S. suspects with no international ties for a combined daily total of 1,000 to 1,500 new names.
Between 5 and 6 a.m., a shift of 24 analysts drawn from the agencies that use watch lists begins a new winnowing process at the center's Crystal City office. The analysts have access to case files at TIDE and the original intelligence sources, said the center's acting director, Rick Kopel.
Decisions on what to add to the Terrorist Screening Center master list are made by midafternoon. The bar is higher than TIDE's; total listings were about 235,000 names as of last fall, according to Justice Department Inspector General Glenn A. Fine. The bar is then raised again as agencies decide which names to put on their own watch lists: the Transportation Security Administration's "no-fly" and "selectee" lists for airlines; Consular Lookout and Support System at the State Department; the Interagency Border and Inspection System at the Department of Homeland Security; and the Justice Department's National Crime Information Center. The criteria each agency use are classified, Kopel said.
Some information may raise a red flag for one agency but not another. "There's a big difference between CLASS and no-fly," Kopel said, referring to State's consular list. "About the only criteria CLASS has is that you're not a U.S. person. . . . Say 'a Mohammed from Syria.' That's useless for me to watch-list here in the United States. But if I'm in Damascus processing visas . . . that might be enough for someone to . . . put a hold on the visa process."
All of the more than 30,000 individuals on the TSA's no-fly list are prohibited from entering an aircraft in the United States. People whose names appear on the longer selectee list -- those the government believes merit watching but does not bar from travel -- are supposed to be subjected to more intense scrutiny.
With little to go on beyond names, airlines find frequent matches. The screening center agent on call will check the file for markers such as sex, age and prior "encounters" with the list. The agent might ask the airlines about the passenger's eye color, height or defining marks, Kopel said. "We'll say, 'Does he have any rings on his left hand?' and they'll say, 'Uh, he doesn't have a left hand.' Okay. We know that [the listed person] lost his left hand making a bomb."
If the answers indicate a match, that "encounter" is fed back into the FBI screening center's files and ultimately to TIDE. Kopel said the agent never tells the airline whether the person trying to board is the suspect. The airlines decide whether to allow the customer to fly.
TSA receives thousands of complaints each year, such as this one released to the Electronic Privacy Information Center in 2004 under the Freedom of Information Act: "Apparently, my name is on some watch list because everytime I fly, I get delayed while the airline personnel call what they say is TSA," wrote a passenger whose name was blacked out. Noting that he was a high-level federal worker, he asked what he could do to remove his name from the list.
The answer, Kopel said, is little. A unit at the screening center responds to complaints, he said, but will not remove a name if it is shared by a terrorism suspect. Instead, people not on the list who share a name with someone listed can be issued letters instructing airline personnel to check with the TSA to verify their identity. The GAO reported that 31 names were removed in 2005.
A Process Under Fire
A recent review of the entire Terrorist Screening Center database was temporarily abandoned when it proved too much work even for the night crew, which generally handles less of a workload. But the no-fly and selectee lists are being scrubbed to emphasize "people we think are a danger to the plane, and not for some other reason they met the criteria," Kopel said.
A separate TSA system that would check every passenger name against the screening center's database has been shelved over concern that it could grow into a massive surveillance program. The Department of Homeland Security was rebuked by Congress in December for trying to develop a risk-assessment program to profile travelers entering and leaving the United States based on airline and financial data.
Kopel insisted that private information on Americans, such as credit-card records, never makes it into the screening center database and that "we rely 100 percent on government-owned information."
The center came in for ridicule last year when CBS's "60 Minutes" noted that 14 of the 19 Sept. 11 hijackers were listed -- five years after their deaths. Kopel defended the listings, saying that "we know for a fact that these people will use names that they believe we are not going to list because they're out of circulation -- either because they're dead or incarcerated. . . . It's not willy-nilly. Every name on the list, there's a reason that it's on there."
Ordinary Customers Flagged as Terrorists
Private businesses such as rental and mortgage companies and car dealers are checking the names of customers against a list of suspected terrorists and drug traffickers made publicly available by the Treasury Department, sometimes denying services to ordinary people whose names are similar to those on the list.
The Office of Foreign Asset Control's list of "specially designated nationals" has long been used by banks and other financial institutions to block financial transactions of drug dealers and other criminals. But an executive order issued by President Bush after the Sept. 11, 2001, attacks has expanded the list and its consequences in unforeseen ways. Businesses have used it to screen applicants for home and car loans, apartments and even exercise equipment, according to interviews and a report by the Lawyers' Committee for Civil Rights of the San Francisco Bay Area to be issued today.
"The way in which the list is being used goes far beyond contexts in which it has a link to national security," said Shirin Sinnar, the report's author. "The government is effectively conscripting private businesses into the war on terrorism but doing so without making sure that businesses don't trample on individual rights."
The lawyers' committee has documented at least a dozen cases in which U.S. customers have had transactions denied or delayed because their names were a partial match with a name on the list, which runs more than 250 pages and includes 3,300 groups and individuals. No more than a handful of people on the list, available online, are U.S. citizens.
Yet anyone who does business with a person or group on the list risks penalties of up to $10 million and 10 to 30 years in prison, a powerful incentive for businesses to comply. The law's scope is so broad and guidance so limited that some businesses would rather deny a transaction than risk criminal penalties, the report finds.
"The law is ridiculous," said Tom Hudson, a lawyer in Hanover, Md., who advises car dealers to use the list to avoid penalties. "It prohibits anyone from doing business with anyone who's on the list. It does not have a minimum dollar amount. . . . The local deli, if it sells a sandwich to someone whose name appears on the list, has violated the law."
Molly Millerwise, a Treasury Department spokeswomen, acknowledged that there are "challenges" in complying with the rules but said that the department has extensive guidance on compliance, both on the OFAC Web site and in workshops with industry representatives. She also said most businesses can root out "false positives" on their own. If not, OFAC suggests contacting the firm that provided the screening software or calling an OFAC hotline.
"So the company is not only sure that they are complying with the law," she said, "but they're also being good corporate citizens to make sure they're doing their part to protect the U.S. financial system from abuse by terrorists or [weapons] proliferators or drug traffickers."
Tom Kubbany is neither a terrorist nor a drug trafficker, has average credit and has owned homes in the past, so the Northern California mental-health worker was baffled when his mortgage broker said lenders were not interested in him. Reviewing his loan file, he discovered something shocking. At the top of his credit report was an OFAC alert provided by credit bureau TransUnion that showed that his middle name, Hassan, is an alias for Ali Saddam Hussein, purportedly a "son of Saddam Hussein."
The record is not clear on whether Ali Saddam Hussein was a Hussein offspring, but the OFAC list stated he was born in 1980 or 1983. Kubbany was born in Detroit in 1949.
Under OFAC guidance, the date discrepancy signals a false match. Still, Kubbany said, the broker decided not to proceed. "She just talked with a bunch of lenders over the phone and they said, 'No,' " he said. "So we said, 'The heck with it. We'll just go somewhere else.' "
Kubbany and his wife are applying for another loan, though he worries that the stigma lingers. "There's a dark cloud over us," he said. "We will never know if we had qualified for the mortgage last summer, then we might have been in a house now."
Saad Ali Muhammad is an African American who was born in Chicago and converted to Islam in 1980. When he tried to buy a used car from a Chevrolet dealership three years ago, a salesman ran his credit report and at the top saw a reference to "OFAC search," followed by the names of terrorists including Osama bin Laden. The only apparent connection was the name Muhammad. The credit report, also by TransUnion, did not explain what OFAC was or what the credit report user should do with the information. Muhammad wrote to TransUnion and filed a complaint with a state human rights agency, but the alert remains on his report, Sinnar said.
Colleen Tunney-Ryan, a TransUnion spokeswoman, said in an e-mail that clients using the firm's credit reports are solely responsible for any action required by federal law as a result of a potential match and that they must agree they will not take any adverse action against a consumer based solely on the report.
The lawyers' committee documented other cases, including that of a couple in Phoenix who were about to close on their first home, only to be told the sale could not proceed because the husband's first and last names -- common Hispanic names -- matched an entry on the OFAC list. The entry did not include a date or place of birth, which could have helped distinguish the individuals.
In another case, a Roseville, Calif., couple wanted to buy a treadmill from a home fitness store on a financing plan. A bank representative told the salesperson that because the husband's first name was Hussein, the couple would have to wait 72 hours while they were investigated. Though the couple eventually received the treadmill, they were so embarrassed by the incident they did not want their names in the report, Sinnar said.
James Maclin, a vice president at Mid-America Apartment Communities in Memphis, which owns 39,000 apartment units in the Southeast, said the screening has become "industry standard" in the apartment rental business. It began about three years ago, he said, spurred by banks that wanted companies they worked with to comply with the law.
David Cole, a Georgetown University law professor, has studied the list and at one point found only one U.S. citizen on it. "It sounds like overly cautious companies have started checking the list in situations where there's no obligation they do so and virtually no chance that anyone they deal with would actually be on the list," he said. "For all practical purposes, landlords do not need to check the list."
Still, Neil Leverenz, chief executive of Automotive Compliance Center in Phoenix, a firm that helps auto dealers comply with federal law, said he spoke to the general manager of a Tucson dealership who tearfully told him that if he had known to check the OFAC list in late summer of 2001, he would not have sold the car used by Mohamed Atta, who went on to fly a plane into the World Trade Center.
Staff researchers Bob Lyford and Richard Drezen contributed to this report.
New Driver's License OK'd for Border
Gregoire signs test program to allow non-passport travel
Kristen Millares Bolt
The state's upcoming alternative "enhanced" driver's license -- which Washington residents will be able to use for crossing the Canadian border in lieu of a passport -- is necessary to boost security while preserving the cross-border flow of trade and tourism, Gov. Chris Gregoire said Friday.
The law, signed by Gregoire Friday, launches a pilot program agreed upon between the state and the U.S. Department of Homeland Security, whose Secretary Michael Chertoff said that at least one other state has expressed interest in following Washington's lead.
Citing the $35 million in goods flowing both ways daily through the U.S.-Canadian border crossing at Blaine, Gregoire said the law will help Washington keep the benefits expected to spill south from the 2010 Olympic Winter Games in Vancouver.
"May these gates never be closed," Gregoire said, quoting a phrase inscribed on the Peace Arch, built in Blaine in 1921 as a monument to world peace and the openness of the U.S.-Canadian border on which it rises.
The agreement allows state residents to apply for the $40 voluntary driver's license, which will be loaded with proof of citizenship and other information, beginning January 2008. It is in effect until at least June 2009, the deadline imposed by Homeland Security's Western Hemisphere Travel Initiative. As early as January 2008, that initiative may require presentation of a valid U.S. passport or another Department of Homeland Security-approved document by U.S. citizens re-entering the U.S. by land or sea, including ferries, from Canada, Mexico, Central and South America, the Caribbean or Bermuda.
The "enhanced" driver's license created by Gregoire's pilot program could serve as a passport-alternative if approved by Homeland Security. Gregoire said the program would be self-supporting financially, relying on the $40 fee to offset the costs of implementation.
Gregoire and Chertoff touted the new driver's license as a cheaper, more convenient alternative to applying for a $97 passport (which costs $67 to renew every 15 years). Regular driver's licenses cost $25 to renew every five years.
The alternative license will contain a Radio Frequency Identification chip, commonly known as RFID, which the guard booths will use to scan the license as a traveler or trucker pulls up to the booth. U.S. passports issued since late 2006 already contain RFID chips.
The alternative license, which Chertoff likened to the E-Z-Pass often used at tolling stations in other parts of the country, also allows the guards to check the driver's criminal history through a series of databases, flagging those with convictions. Gregoire said there was potential for more databases to be added to the card's access.
Citing the 9/11 Commission's support for more secure documentation for U.S. entry, Chertoff pointed out that U.S. Customs and Border Protection agents currently must look at more than 8,000 different forms of identification, whether birth certificates, driver's licenses or other documents.
Canadian Minister of Public Safety Stockwell Day said that the Canadian government is developing a parallel "enhanced" driver's license system for Canadians. Currently, Canadian citizens must present a passport to enter the U.S. without a visa.
The U.S. and Canada are already cooperating on the NEXUS card, which facilitates border clearance for low-risk, pre-approved travelers between Canada and the U.S., whether by air, land, or sea.
Friday's announcement comes on the heels of last week's federal checkpoint set up outside of Forks for those driving south on U.S. Route 101, who were required to prove their U.S. citizenship. When asked if RFID scanning booths might be set up in different locales to expedite such checks, Chertoff said the federal checkpoint and state license programs should not be confused but did not explicitly rule out such a move.
Such checkpoints are not allowed by Washington state's constitution, but federal law supercedes state law.
CROSSING THE BORDER
Currently: Americans need a driver's license, or another official picture identification, and a birth certificate, to re-enter the U.S. by land or sea from Canada. Americans traveling by air need a passport.
Starting January 2008: Washingtonians can opt to use an alternative driver's license for B.C. border crossings.
Starting June 2009: Americans will need to present a passport to re-enter the U.S. by land or sea from Canada, though alternates such as Washington's may be acceptable.
Homeland Security Offers Details on Real ID
Hundreds of millions of Americans will have until 2013 to be outfitted with new digital ID cards, the Bush administration said on Thursday in a long-awaited announcement that reveals details of how the new identification plan will work.
The announcement by the U.S. Department of Homeland Security offers a five-year extension to the deadline for states to issue the ID cards, and proposes creating the equivalent of a national database that would include details on all 240 million licensed drivers.
According to the draft regulations, which were required by Congress in the 2005 Real ID Act and are unlikely to assuage privacy and cost concerns raised by state legislatures:
• The Real ID cards must include all drivers' home addresses and other personal information printed on the front and in a two-dimensional barcode on the back. The barcode will not be encrypted because of "operational complexity," which means that businesses like bars and banks that require ID would be capable of scanning and recording customers' home addresses.
• A radio frequency identification (RFID) tag is under consideration. Homeland Security is asking for input on how the licenses could incorporate "RFID-enabled vicinity chip technology, in addition to" the two-dimensional barcode requirement.
• States must submit a plan of how they'll comply with the Real ID Act by October 7, 2007. If they don't, their residents will not be able to use IDs to board planes or enter federal buildings starting on May 11, 2008.
• Homeland Security is considering standardizing a "unique design or color for Real ID licenses," which would effectively create a uniform national ID card.
Thursday's draft regulations arrive amid a groundswell of opposition to the Real ID Act from privacy groups, libertarians and state officials. On Wednesday, the National Governors Association endorsed a bill by Sen. Susan Collins, a Maine Republican, that would reduce Homeland Security's power to order states to comply with the law.
The draft rules, which are not final and will be subject to a public comment period, also include a more detailed estimate of how much it will cost to comply. The National Conference of State Legislatures and other state groups estimated last year that states will have to spend more than $11 billion. But Homeland Security says the total cost--including the cost to individuals--will be $23.1 billion over a 10-year period.
Another section of the 162-page regulations says that states have until December 31, 2009, to certify that they're on the path toward fully complying with the Real ID Act.
Push for repeal continues
Opponents of the Real ID Act, who have been advising states to publicly oppose the system, said that the draft rules are insufficiently privacy-protective and reiterated their call for a repeal of the entire law.
"We still need dramatic legislative action from Congress," said Tim Sparapani, legislative counsel for the ACLU, which runs the RealNightmare.org site. "We've got to wipe out the underlying act."
Sparapani and his allies of more than 50 groups, including the National Organization for Women and United Automobile Workers, sent a letter on Monday endorsing a bill to repeal the Real ID Act. The letter says it was a "poorly-conceived law that can never be made to work in any fair or reasonable manner."
The ACLU believes Collins' bill is only a half-hearted step that doesn't go as far as it should. Other proposals include one from Rep. Thomas Allen, a Maine Democrat, that would rewrite the Real ID Act, insert privacy safeguards, and hand $2.4 billion to states over an eight-year period. On Wednesday, Sen. John Sununu, a New Hampshire Republican, and Daniel Akaka, a Hawaii Democrat, reintroduced a broader bill to repeal portions of the existing law.
Some state governments, such as Maine, already have come out against the Real ID Act--a move that effectively dares the federal government to continue even when some states refuse to participate. At least eight states (including Arizona, Georgia, and Vermont) have had anti-Real ID bills approved by one or both chambers of the legislature.
For their part, proponents of the Real ID Act say it's designed to implement proposals suggested by the 9/11 Commission, which noted that some of the hijackers on September 11, 2001, had fraudulently obtained state driver's licenses. But not all did: at least one hijacker simply showed his foreign passport and walked onto the airplane that day.
The Bush administration and many congressional Republicans have defended the Real ID Act as a way to stop future terrorist attacks and deter illegal immigrants.
"Raising the security standards on driver's licenses establishes another layer of protection to prevent terrorists from obtaining and using fake documents to plan or carry out an attack," Homeland Security Secretary Michael Chertoff said in a statement. "These standards correct glaring vulnerabilities exploited by some of the 9/11 hijackers who used fraudulently obtained drivers licenses to board the airplanes in their attack against America."
A 23-page report released this week by Janice Kephart, a former lawyer with the 9/11 Commission, defended the Real ID Act by calling it a "significant step in enhancing our national and economic security and our public safety." Kephart is now president of 9/11 Security Solutions.
States bowing out of Real ID requirements is "not the way to secure America," the report says. "Embedding identity security into state-issued (ID card) systems will take significant planning to fulfill the requirements of Real ID and significant financial resources for the 'brick and mortar' start-up costs. Congress must step up to the plate and make securing of identity documents the national priority that our citizens deserve."
The Real ID Act passed Congress as part of an $82 billion military spending bill that also included funds for tsunami relief. No up-or-down vote on solely the Real ID Act took place in the entire Congress, though the House of Representatives did approve the rules by a 261-161 vote.
Rockefeller: Should CIA Prisons Stay?
The chairman of the Senate Intelligence Committee is questioning whether the CIA's secret prison program — which he fears has become a black eye to the United States — should continue.
The review led by Sen. Jay Rockefeller, D-W.Va., comes as the Bush administration deliberates an executive order, called for by Congress, that will establish new guidelines for the CIA's system for detaining and interrogating suspected terrorists. It is the agency's most publicly controversial intelligence collection program.
Rockefeller says there is no doubt that intelligence from detainees has been valuable. Yet he says he wonders whether the CIA needed to create a system outside of long-standing FBI and military interrogation programs.
Rockefeller's spokeswoman, Wendy Morigi, said he has not been convinced that the CIA prisons produce better intelligence than the FBI and military systems.
"The real question is whether the administration's decision to pursue an alternate system (at the CIA) was the right approach," Rockefeller said in a statement Friday.
President Bush said he emptied the CIA's secret prisons in September and sent its last 14 high-value detainees to the U.S. prison at Guantanamo Bay, Cuba. But he left open the possibility that the program could be used again.
As chairman, Rockefeller has promised to conduct more vigorous oversight of the spy agencies than did his Republican predecessor. He is asking whether having a separate CIA detention and interrogation system is necessary and worth the toll on the U.S. image abroad.
"The widespread reports about secret prisons and torture, whether accurate or not, have damaged the United States' reputation around the world and hindered counterterrorism efforts with our allies," he said.
Human rights groups have argued for years that the CIA's detention and interrogation techniques amount to torture. The International Committee of the Red Cross is the only independent watchdog to interview the 14 detainees who were held by the CIA.
In a confidential report that has not been publicly distributed, the Red Cross said the 14 prisoners described highly abusive interrogation methods, especially when techniques such sleep deprivation and forced standing were used in combination. None of the detainees' accounts has been verified.
U.S. officials long have said the CIA program is for the most dangerous detainees and the CIA says its officers do not torture. "The agency's terrorist interrogation program has been conducted lawfully, with great care and close review, producing vital information that has helped disrupt plots and save lives," CIA spokesman Mark Mansfield said.
As part of the Senate committee's work, members have visited the U.S. detention facilities at Guantanamo Bay; such fact-finding trips are expected to continue.
The committee held a private hearing last month on CIA renditions — the practice of grabbing suspected terrorists in one country and delivering them to another country. A committee hearing planned for April 10 will focus on CIA detention.
The committee also is reviewing classified documents on the CIA's secret prisons.
One committee aide said that for some time the administration would not brief the full House and Senate intelligence committees on the program's most sensitive aspects and limited those briefings to just a few members. More recently, the administration has begun giving more complete information to the full Senate committee. The aide spoke on condition of anonymity, citing office policy.
A former senior intelligence official, who spoke on condition of anonymity while discussing internal administration policies, said the CIA had kept the committees informed as much as possible under the White House's rules.
The House committee, led by Rep. Silvestre Reyes, D-Texas, has had private briefings with CIA Director Michael Hayden and expects more. Reyes wants to see the Justice Department's legal memos justifying the CIA program.
"The chairman is not going to approve any intelligence activity until he has an opportunity to review the legal basis for it," said a House committee aide who was authorized to speak to reporters only if not identified.
The Justice Department, the CIA and the White House have worked for five months on an executive order that will provide more clarity on the administration's interpretation of the Geneva Conventions, possibly changing what is allowed during CIA interrogations.
The document will prove important to members of Congress who are evaluating the CIA program. It also will be critical to CIA officers, who do not want to be involved in operations that could put them in legal jeopardy.
"At the end of the day, the director — any director — of the CIA must be confident that what he has asked an agency officer to do under this program is lawful," Hayden wrote in a September memo to employees.
A spokesman for Bush's National Security Council, Gordon Johndroe, said government officials have been discussing the executive order, which will take several weeks to complete.
"This process required additional time as new officials, including the defense secretary, director of national intelligence and White House counsel, were brought into the deliberations," Johndroe said.
The CIA's detention practices raised concerns almost from the day that the agency began questioning people with suspected terrorist links. Early in the 2001 U.S. invasion of Afghanistan, senior military officers took steps to ensure that military personnel were not in the room during CIA interrogations, a government official familiar with military and intelligence operations told The Associated Press last year.
Bush did not acknowledge the CIA's secret detention program until September, when he announced that the agency had just moved al-Qaida operational planner Khalid Sheikh Mohammed and 13 other suspected terrorists to Guantanamo Bay.
"Terrorists in this program have painted a picture of al-Qaida's structure and financing, and communications and logistics," Bush said, as he made the case that the CIA's interrogation work was tough, lawful and invaluable.
Rockefeller said the goal must be to get intelligence in a legal, effective way — "in a manner that promotes the national security interests of the United States."
Every Child to be Screened for Risk of Turning Criminal Under Blair Justice Plan
• Police would demand DNA samples from all suspects
• Tories condemn strategy as 'nanny state gone mad'
A new-style "11-plus" to assess the risk every child in Britain runs of turning to crime was among a battery of proposals unveiled in Tony Blair's crime plan yesterday.
The children of prisoners, problem drug users and others at high risk of offending will also face being "actively managed" by social services and youth justice workers. New technologies are to be used to boost police detection rates while DNA samples are to be taken from any crime suspect who comes into contact with the police.
The "early intervention" approach is part of a package of proposals on security, crime and justice produced by Downing Street which underline the scale of criminal justice reform Mr Blair believes is still needed despite passing 53 law and order bills since he came to power in 1997.
The shadow home secretary, David Davis, focused his criticism on the extension of the DNA database to any crime suspect and the early intervention plans for children. He described the proposal to assess every child for risk of offending as the "nanny state gone mad" while he said the Conservatives would have "great and grave concerns" about any extension of the DNA database.
A Home Office spokeswoman said the universal checks on children would look at factors including attainment at school, truancy rates, and substance abuse.
A high-level review of the police that will not address the vexed question of force mergers is also planned, as are an extension of "summary justice" measures and tougher community punishments with the creation of specialist new courts. The plan is sprinkled with eye-catching initiatives such as MP3 music players that can be accessed only with the owner's fingerprints, crowd scanners that detect bombs and efficiency league tables for courts.
The crime package, agreed by the cabinet 12 days ago, came without any time-table or costings and some proposals - such as "hybrid prisons" to treat mentally ill offenders - are clearly labelled as "for the long term". In some parts of Whitehall yesterday the plan was described at best as "blue skies thinking" and at worst as "undeliverable". Opposition MPs wasted no time in criticising it as the PM's swansong after "10 years of failure".
But Mr Blair made clear yesterday that the pace of public service reform in criminal justice needed to match that in health and education. Despite some headlines suggesting the crime plan had been designed to cut the record prison population of 80,000, the 105-page strategy paper talks only of "stabilising sentencing" rather than cutting prisoner numbers.
"This is not an alternative to prison, it is in addition to prison," said Mr Blair before highlighting a renewed drive to focus on the 100,000 prolific "career criminals" responsible for the bulk of crime.
Mr Blair also focused on a proposed new "prolific offender order" under which several hundred "hardcore" career criminals would only be released from prison under licence for the rest of their lives. Those who breach the conditions of their licences - including a ban on associating with known criminals - could face up to a further three years in jail.
"These people have serious problems and targeting the offender means taking those problems seriously. And we have proof that it works," said Mr Blair.
But Home Office research published yesterday appeared to undermine the claim, pointing out that although the results were encouraging "no specific conclusions could be drawn" from an initial drop in offending rates amongst 7,800 "career criminals" on the prolific offender programme since 2004.
The measures in the plan aimed at tackling mental health and drug problems among prisoners were widely welcomed yesterday, with the Liberal Democrats claiming the prime minister had finally adopted their policies.
The package leaves a question mark over the future of the Home Office with a policy paper talking of the need for a "strong, strategic centre" in government to provide the political leadership to deal with the terrorist threat. But the announcement on splitting John Reid's department into two separate ministries of national security and justice has yet to be made.
The wide-ranging strategy document touches on questions of immigration and asylum, raising the prospect of a review of the impact of human rights legislation in this area and holding out the possibility of a "duty to integrate" being imposed on new migrants.
• Vulnerable children and "those at risk of criminality", including those whose parents are in prison and/or among the 300,000 problem drug abusers, are to be "actively case managed" by Children's Trust social services staff and youth justice workers from "the earliest possible point".
• Universal checks on every child throughout his or her development to help "service providers" identify those most at risk of offending throughout their development, including at 11 when they go to secondary school.
• Preventative programmes to tackle social exclusion, drugs and alcohol abuse.
Detecting crime and enforcing the law
• New types of summary powers, including a "criminal benefit order" to seize the assets of offenders in low-value cases, confiscate "lifestyle assets" such as jewellery, plasma TV screens and laptops, and scrap the current 12-year time limit on asset recovery cases. Expansion of existing "on-the-spot" fines to deal with offenders without going to court.
• Greater use of new technology, including mobile fingerprint readers for the police, crowd scanners that detect bomb-related devices, developing fingerprint-only access MP3 players and expanding the DNA database to all suspects who come into contact with the police. The last proposals would bring hundreds of thousands more people within the scope of the police DNA database. Downing Street says it is also looking at more advanced forms of CCTV, including systems that allow facial recognition of individuals and can scan postal packages for explosive devices.
• Launch of a review of the police, headed by Sir Ronnie Flanagan, Her Majesty's Chief Inspector of Constabulary, looking into the options for reducing bureaucracy, increasing local accountability and spreading the use of neighbourhood policing teams.
Courts and sentencing
• In the face of a record 80,000 prison population the government now says it wants to "stabilise sentencing" by making non-custodial sentences more effective and to strengthen the effectiveness of rehabilitation programmes in prison. In the long term "hybrid prisons" will be set up to treat mentally ill offenders.
• The performance of the courts to be driven up by publishing league tables of efficiency, "virtual courts" to be created using video-link technology so defendants can be dealt with in police stations, and community justice and specialist courts set up to deal with those with mental health problems and others. Greater involvement of voluntary organisations and charities. Also, the introduction of "review courts" under which the same judge looks at the progress of an offender after sentence.
• Step up the pace of workforce reform among court, probation and prison staff with greater use of private sector competition, and break down traditional demarcations.
• A merger of the prolific offenders and drug intervention programmes which are aimed at the 100,000 "career criminals" who are responsible for half of all crime. A new "prolific offender licence" which would see the 500 most prolific offenders placed on licence when they are released from prison for the rest of their lives. Conditions attached might include a ban on associating with known criminals. This is a relaunch of the 2004 crime plan, which led to the prolific offenders' programme. The government claimed yesterday it had been a success because conviction rates of those on the programme had fallen by 43%. But actual figures show that the 7,800 offenders on the programme had been convicted of 55,000 offences in the 17 months before they went on the scheme and convicted of 31,377 crimes after they started, hardly a ringing endorsement of a flagship government programme.
Immigration and community cohesion
• Review the human rights laws to ensure they do not restrict implementation of the government's asylum and immigration policies.
• Rigorously enforce the responsibilities of migrants in Britain, including compulsory health insurance for visitors who come to the country on work permits.
• The duty on new migrants to integrate into British society is to be defined.
Mind How You Walk. It Could be a Crime
Later today, the Commons home affairs select committee will announce it is to conduct an inquiry into the growth of surveillance in Britain. It is tempting to say this is not before time, but it is probably too late if the aim is to have any influence over policy.
We are already a "surveillance society". We are, for the time being, fortunate that the full potential for its abuse is constrained by the pluralist democracy in which we live. However, we do not have to look back very far in history to imagine the use to which such snooping could be put.
In the media, whenever we wish to describe the burgeoning intrusiveness of the past decade, we are inevitably drawn to one of our greatest writers, George Orwell - although even he could not have envisaged that, in addition to the ubiquitous cameras, it would be possible to track everyone from cradle to grave through computer-chip technology or to build up a database of the population's DNA. But he would have understood why it is being done.
In 1984, it is about control. The state tells its people that the cameras are there for their benefit and to prevent crime, but the crime they are preventing is insurrection. Everyone is watched to ensure they conform.
Winston Smith can never get away from the surveillance. At one point, he realises how dangerous it is even to allow his thoughts to wander in public or when facing the telescreen. Facial expressions were watched closely and could have dire consequences.
Giving a disbelieving look when a state policy or a military victory was announced was considered a "facecrime". There would have been a lot of facecriminals around on Budget day last week.
OK, so we have not gone that far. But the point is that we could. In the wrong hands, technology that appears benign can be used to shackle. Within the lifetimes of millions alive today, there were totalitarian regimes that would have made the most appalling use of such opportunities.
I have no doubt that our political masters believe the rapid expansion of CCTV cameras, for instance, is good for us. Indeed, that would be the view of most people, who seem happy with the cameras.
It stands to reason that if you have a camera trained on a shopping centre, a car park, a hotel lobby or a bus stop, we must be safer.
Well, actually, it does not follow at all. One problem is that cameras take the place of other forms of crime prevention, such as more police or better street lighting.
You might feel safer and the mugger may well think twice before striking if he thinks a CCTV camera is about. But they can engender complacency; and if cameras are so effective in preventing crime, why have the numbers of town-centre assaults and robberies shot up even as CCTV has mushroomed?
The iconic CCTV images we all remember are of crimes happening, or about to happen, not of them being prevented: the grainy image of Jamie Bulger being led away by two boys to his death; Jill Dando shopping before she was murdered on her doorstep; the four July 7 bombers boarding a train at Luton en route to London.
Perhaps CCTV will lead police in Jamaica to the killer of Bob Woolmer. But even as a detection tool, CCTV has been found wanting. A review carried out by Home Office experts and police chiefs has found that too many images are hard to access.
The next generation of CCTV will be far more sophisticated than the analogue video cameras we have now. The new ones will be smart digital technologies able to "decide" if a crime is about to happen and focus in on suspicious activity rather than on everything, making it easier to go back over the images.
These intelligent cameras can tell if someone is spraying graffiti on a wall because they have "learnt" what normal behaviour should be within their field of vision.
Similarly, a camera trained on a car park will be activated only if it detects someone going from car to car. An airport camera can be programmed to know what a departure hall should look like, with thousands of separate movements. A single suitcase left for any length of time would trigger an alarm.
This technology was developed for use in hotels to alert staff to a breakfast tray left outside a room. Soon, it will be coming to a street near you.
Why not go the whole hog and have microphones attached to cameras or embedded in street lights? The Dutch have pioneered a system that recognises aggressive sounds, without actually eavesdropping on conversations (perish the thought).
My favourite is automatic gait recognition. This identifies people by the way they walk and the Government has asked Ministry of Defence scientists to develop it for widespread use.
Cameras are programmed to pick up on a particular gait, thereby making it impossible for a suspect to escape by covering his face. Even Orwell did not come up with "gaitcrime".
It is right that the home affairs select committee should look at this, although it is hard to see what it can do about it. We already have close to five million CCTV cameras, which is one fifth of the world's total.
The average Londoner might be monitored by 300 CCTV cameras a day. They are not going to be switched off, merely made more sophisticated.
But the committee can do one thing and that is alert the country to the potential dangers of putting all this surveillance together - the CCTV, DNA, ID card, radio-frequency identification, citizens' database - and linking it up with the rest of the information held on us.
Whatever can be said for the value of any one of these, it is the combination that makes me feel uneasy. I just hope it doesn't show on my face.
McLean Students Sue Anti-Cheating Service
Plaintiffs Say Company's Database of Term Papers, Essays Violates Copyright Laws
Two McLean High School students have launched a court challenge against a California company hired by their school to catch cheaters, claiming the anti-plagiarism service violates copyright laws.
The lawsuit, filed this week in U.S. District Court in Alexandria, seeks $900,000 in damages from the for-profit service known as Turnitin. The service seeks to root out cheaters by comparing student term papers and essays against a database of more than 22 million student papers as well as online sources and electronic archives of journals. In the process, the student papers are added to the database.
Two Arizona high school students also are plaintiffs. None of the students is named in the lawsuit because they are minors.
"All of these kids are essentially straight-A students, and they have no interest in plagiarizing," said Robert A. Vanderhye, a McLean attorney representing the students pro bono. "The problem with [Turnitin] is the archiving of the documents. They are violating a right these students have to be in control of their own property."
Turnitin officials did not return calls for comment yesterday. A Fairfax County schools spokesman said the system would not comment on pending litigation.
The legal dispute comes amid a debate over the best way to ensure students are doing their own work at a time when the Internet can make it easy to cheat. Many educators, including Fairfax County school officials, say Turnitin is an effective way to police for plagiarism.
Attorneys for the company and various universities and public school systems, including Fairfax , have concluded that the service doesn't violate student rights. Turnitin is used by 6,000 institutions in 90 countries, including Harvard and Georgetown universities, company officials have said. Some public schools in Arlington, Prince George's and Loudoun counties use the service.
According to the lawsuit, each of the students obtained a copyright registration for papers they submitted to Turnitin. The lawsuit filed against Turnitin's parent company, iParadigms LLC, seeks $150,000 for each of six papers written by the students.
One of the McLean High plaintiffs wrote a paper titled "What Lies Beyond the Horizon." It was submitted to Turnitin with instructions that it not be archived, but it was, the lawsuit says.
Kevin Wade, that plaintiff's father, said he thinks schools should focus on teaching students cheating is wrong.
"You can't take a person's work and run it through a computer and make an honest person out of them," Wade said. "My son's major objection is that he does not cheat, and this assumes he does. This case is not about money, and we don't expect to get that."
Andrew Beckerman-Rodau, co-director of the intellectual property law program at Suffolk University Law School, said that although the law regarding fair use is subject to interpretation, he thinks the students have a good case.
"Typically, if you quote something for education purposes, scholarship or news reports, that's considered fair use," Beckerman-Rodau said. "But it seems like Turnitin is a commercial use. They turn around and sell this service, and it's expensive. And the service only works because they get these papers."
|28-03-07, 08:51 AM||#2|
Join Date: May 2001
Location: New England
Giant Hex-Nut Holding Saturn Together Slowly Loosening
Saturn’s South Pole. NASA imagery
Potentially "catastrophic" says space agency
Jackson Pratts, AFDNews
According to sources deep within NASA, there is a massive bolt running straight through the middle of the planet Saturn – and it’s unscrewing. The nut at the bottom holding Saturn’s two huge halves together is about 25,000 kilometers wide and began turning after undergoing multiple freeze-thaw cycles over several millennia. If it does work free it will spell doom for the gassy orb, which was quickly pulled together billions of years ago during a timesaving maneuver at the dawn of the Universe.
Experts say the preferable way to build planets like Saturn is by the slow agglomeration of tiny bits of frozen gas over eons, since this is the most stable method, but the mysterious Master’s Guild and their shadowy Genesis Group, whom some surmise are responsible for the Universe's physical design, have upon occasion skipped this important step. "If they're doing a quick build-out they'll use these colossal magnetic containers to get a solar system up fast, but it's a gamble," says Doctor Erich von Däniken, Jr., a Fellow at the Dutch Institute of Interplanetary Machinations (DIIM). The controversial researcher says it’s a timesaver albeit one that can lead to continuing maintenance issues. "Sure it’s fast but sometimes the planets can loosen and they have to go back and tighten them up," observed the DIIM professor, adding somewhat ominously that "It's such a pain they’ve been known to skip it."
The problem now is the so-called "Summer Constant." It's basically mid-August in this part of the galaxy’s spiral arm, and local Guild Members are on vacation.
Physicists privately acknowledge long galactic months mean August vacations can last fifteen million Earth years or more, and with no indication Group workers are planning to come back early to avert a potential crisis the situation is becoming dire, and not just for Saturn. If the planet does unscrew it would probably mean disaster for its neighbors as well, including perhaps the Earth itself.
"Almost nobody wants to see a big gassy chunk of Saturn take out Belgium obviously so we're looking at some proposals," said the official. Since no one knows exactly when this endless-summer break ends, asking the Guild for help would be an obvious next move, but that is apparently out of the question. "These are very large, very powerful entities and you have no idea how intensely they party. They can get really pissy if their vacation is interrupted," admitted the source after insisting on anonymity. "Believe me nobody wants that."
Others are not so sure. "Trust me," said von Däniken, Jr., "They’re pulling out the stops to find these guys. In a sense the entire American space program has been a bid for their attention."
The NASA official did confirm that the space agency is pondering a fix of it’s own but conceded there were no easy answers. "Maybe a few billion gallons of loktite or something until the Guild comes back, who knows? We’re open to suggestions. We just don't have a torque wrench big enough for this job."
As to why they skimped on construction in the first place, most experts say it’s now become clear the Guild spares no expense for important planetary projects at the "good end" of a rotating spiral arm and just throws up some junk at the other end for balance.
"I guess you could say we’re the galaxy’s ballast,” sighed the official.
Spotting a Star in the Texas Night
The South by Southwest festival in Austin, Texas, is the best place for a band to build a buzz. Sylvie Simmons asked the tastemakers which acts caught their eye this year
What are they like? Male-female, guitar-drums duo from Hartford, Connecticut.
Chosen by: Thurston Moore of Sonic Youth and head of Ecstatic Peace records.
"Elisa Ambrogio, who sings and plays guitar, is my favourite guitar player right now. Her approach to the instrument is the complete opposite to traditional - she'll hold the guitar upside down with the neck touching the ground and claw at it. It's completely primal. Magik Markers say they have songs, but you wouldn't really know it, and the music is not really punk but it's completely punk at the same time - it's not referencing anything. Everybody at the gig was just stunned; it blew everybody's mind. They've done some CD-Rs and small-label things but they've never yet made a record that captures what they do on stage, which is either cathartic or it's nothing, it's a real roll of the dice what you're going to get, whether they're playing their most important show ever, or to five people in a squat. Really what they are is the anti-buzz, buzz band - they'll tell any of the other buzz bands to buzz off. They're what rock'n'roll is all about."
Where to hear them: The best place in the UK to buy the Magik Markers' back catalogue is Rough Trade shops (roughtrade.com). You can hear two songs at myspace.com/themagikmarkers
What are they like? Dark UK synth-pop band fronted by former Sneaker Pimp Chris Corner, whose songs the Austin Chronicle described as "the best [Depeche Mode's] Martin Gore never penned."
Chosen by: Randy Haecker of Sony Legacy Recordings.
"IAMX is an altogether more immediate and aggressive vehicle for Chris Corner than Sneaker Pimps were. He's backed by an industrial trio that wouldn't look out of place alongside Marilyn Manson, and whose set sounded like a sleek, modernist upgrade of Nine Inch Nails' Pretty Hate Machine. Which is something that should serve them well among the goth and industrial dance set. Lots of dark, muscular dance tracks with pervy titles auch as Kiss and Swallow, with Cornell writhing through the fog of dry ice with the physicality of Prince, while looking more like a live-action version of Jack from The Nightmare Before Christmas. Very dramatic."
Where to hear them: IAMX have two albums, Kiss and Swallow and The Alternative. You can hear four tracks at myspace.com/iamx
What is he like? His dad was Psycho actor Anthony Perkins; his mum died in 9/11; his debut album Ash Wednesday was released on XL this February; and he's been touring with My Morning Jacket.
Chosen by: Robyn Hitchcock, psych-folk-rock musician
"He looks like Another Side of Bob Dylan-era Dylan - the button-down shirt, mouth-harp and the hair going up - crossed with Rolling Thunder-era Dylan 10 years later with the upright bass. But the mood of the music isn't Dylan-y at all; it's quite ramshackle and very direct, passionate but not self-conscious. He didn't appear to take himself too seriously. There's a very interesting story to his life but the music that came out of it wasn't what you'd expect. He's got quite a feisty band, with a bass player who looks like Chuck Norris and a drummer who looks as if he must know how frightening he looks. And what with having two names that come from the Million Dollar Quartet - as in Elvis Presley and Carl Perkins; it's like being called Roy Cash - he is, as we say, so a story. One to watch."
Where to hear him: Ash Wednesday is out now on XL. You can hear three tracks at myspace.com/elvisperkins
What's he like? The new Marc Bolan meets weird folk. The Austin Chronicle says of this British artist: "This boy knows rock iconography."
Chosen by: Crispin Parr, SXSW's general manager for British underground and creative director for British music.
"I first saw Pop Levi by chance in New York and it absolutely blew my mind. The attitude, the style, the whole package, is fantastic. I was very early in seeing the Darkness when nobody had heard of them, and it's sort of the same thing, though the music is completely different. It has a very 50s/60s rock'n'roll resonance but it's also T.Rex, very glam, and yet it's also remarkably contemporary. The band are brilliant musicians. When I first saw them, they played one chord for about six minutes - very difficult to do with a band - and pulled it off magnificently. Levi himself is a really good mover and hugely charismatic. Entirely captivating."
Where to hear him: The album Return to Form Black Magick Party is out now on Counter. You can hear seven tracks at myspace.com/poplevi
The Goodnight Loving
Who are they? Milwaukee, Wisconsin band who categorise themselves as Americana/gothic/shoegaze.
Chosen by: Bob Mehr, music critic of the Memphis daily paper the Commercial Appeal. "A really striking band who put out their first record a few months ago on Dusty Medical, a small Milwaukee label that is ostensibly a garage imprint. They aren't strictly garage rock, though. Some of it is big, galloping Americana with singer-songwriter stuff thrown in the mix as well. Having a couple of singers with different personalities means it varies quite a bit, but it's all really exciting. One thing on their side is that their record was produced by Greg Cartwright of the Reigning Sound, who has just done the Mary Weiss record [Dangerous Game, the comeback album by the long-retired Shangri-Las singer]. Somehow he heard the band's tape and was so moved by it he decided to produce it, so undoubtedly others will be, too."
What's she like? She used to be the Leader of the Pack. Now she's back.
Chosen by: Chuck Prophet, musician and songwriter.
"I saw a few artist with great futures ahead of them and great futures behind them but really I'd like to give it up for Mary Weiss, playing to a packed house, lines around the block, at one in the morning. What a performance. Not just the voice, which she still has, or the attitude, which she definitely has - smoking a cigarette on stage in a no-smoking club and telling the crowd to do the same - but the new material. I had tears in my eyes. That was beautiful, as good as the old stuff."
Where to hear her: The comeback album Dangerous Game is out now on Norton. You can hear two tracks at myspace.com/maryweiss
What's she like? She's based in Nashville but has just signed with British label Bella Union.
Chosen by: Phil Alexander, editor of Mojo magazine.
"I'm picking Stephanie Dosen, an incredible singer-songwriter whose backing band had Simon Raymonde from Cocteau Twins on bass, Robert Gomez on guitar and McKenzie Smith from Midlake on drums, with a violinist and cellist thrown in for good measure. It was clearly the first time the band had ever played together and they were brilliant. She's kind of an ethereal singer but her storytelling between songs is brilliant - for instance, how she managed to nick a load of children's storybooks on the plane on her way over, from England, because the kids were annoying her, and managed to write things in their storybooks like 'Your daddy likes little boys' and things like that. A bit strange, but a lovely, lovely singer."
Where to hear her: Her debut album, A Lily for the Spectre, is released in May. You can hear three tracks at myspace.com/stephaniedosen
The Mother Truckers
What are they like? Alt.country/honky-tonk band with one album, Broke, Not Broken, and a lot of supporters.
Chosen by: Rob Bleestein, music director for radioio.com in California.
"They're a northern California band originally and they moved to Austin just about a year ago, but they've already made a name. They won best roots rock group and the talent is undeniable - excellent vocals by Teal Collins and incredible guitar playing and harmonies by Josh Zee, who used to be in the rock band Protein. The music is solid country-rock, but very irreverent country. There were several Americana industry people checking out their show, so it looks like they're in with a chance of breaking big."
Where to hear them: Their two US albums, Broke, Not Broken and Something Worth Dying For, are both available from Amazon. You can hear four tracks at myspace.com/themothertruckers
Music Labels Spring Leaks – for Publicity
Indie record companies are using controlled (and sometimes uncontrolled) leaks of new music to generate buzz.
This year's most interesting Billboard successes have been staged by one very unlikely hit machine – the scrappy independent scene, once the province of self-professed rock geeks.
In recent weeks, albums from indie acts The Shins and Arcade Fire both recently debuted at No. 2 on the Billboard charts, selling about 90,000 units each. The two bands soared past releases by entrenched mainstream artists such as Christina Aguilera and Nickelback. And this week, Modest Mouse, a longtime independent powerhouse – now signed to Sony – made a splash with "We Were Dead Before the Ship Even Sank."
The commercial explosion is no accident. Indie labels may have finally found a way to harness the Internet's sizable community of tastemakers. These music labels are bringing bloggers who have a reputation for posting legal and illegal MP3 tracks into the fold by purposefully leaking albums ahead of the release.
Much as iTunes created a palatable model of digital downloading, these labels increasingly rely on carefully controlled – and sometimes uncontrolled – leaks of MP3 files to publicize upcoming records. Ever since the arrival of file-sharing sites such as Napster and Grokster, entertainment firms have grappled with the question of whether to crack down on the sharing of copyright material or find a way to harness its spread to boost music sales. Even as major entertainment firms mull similar questions relating to the spread of unauthorized clips on YouTube, the popular video-sharing site, they will be keeping close watch on the effectiveness of such "leak" strategies by small labels.
"We'll release an MP3 early into a campaign," says Sonya Kolowrat, a publicist at The Beggars Group, an indie label that's home to the Pixies and Blonde Redhead. The label will post tracks on a special page of its website and give music bloggers individual codes to access the page.
So far, bloggers have been willing to cooperate with labels in exchange for access to songs. "A lot of the labels have been easy to work with and have been very transparent about what they want," says David Greenwald, who posts tracks from coming indie albums on his blog The Rawking Refuses to Stop. "If the label says, 'We don't want you to leak this record,' that's not something I'm going to do," he adds.
The system that has developed strongly resembles the current rapport between radio stations and record labels – the blogs, like radio stations, receive early access to promotional singles as long as they agree not to play the entire album. Because most commercial radio stays away from rough-around-the-edges indie rock, the blogs may be the only outlets available.
The promotions firm Cornerstone, with clients such as Gnarls Barkley and Lily Allen, has an entire department devoted to working with music bloggers and Internet tastemakers. According to copresident Jon Cohen, the firm identifies an artist's existing fans among music bloggers and "empowers" them, as he puts it, by providing them with audio and video content, or tickets and prizes for contests. The firm tracks over 1,600 blogs.
Major labels frequently "watermark" promotional CDs sent to reviewers with a digital signature traceable to the recipient in case of an unauthorized leak. But some smaller labels may even be taking the next step and leaking entire albums themselves.
Kris Gillespie, who manages Domino Records, says leaking wasn't out of the question for his label, the home of the rockers Franz Ferdinand and indie buzzmakers the Arctic Monkeys.
"We were seriously considering leaking tracks," Gillespie says of the latest Franz Ferdinand album, "because the watermarks and copy protection were almost doing too good a job."
Gillespie says he checks peer-to-peer trading sites every day to see if the new Arctic Monkeys album has leaked, "but more out of curiosity than out of vigilance," he notes.
With the formation of this new Internet-industrial complex, the absence of music trading can signal serious problems. "If no one's bothered leaking the album the week before the release date, the fear would be that no one cares," says Brendan Bourke, of the music publicity firm TagTeam. "When you're getting within a few weeks of a release, you want people to start talking about it. It almost behooves you to leak."
The multimillion dollar question, of course, is whether leaks and free singles, for all their publicity payoff, can later hurt an artist's sales. No one can say for sure, but there is one point where the blogger, industry executive, and PR guru agree: In the recording industry, there may well be such a thing as bad publicity.
"A leak is only going to hurt album sales if the album itself is bad," says blogger Greenwald. For the major record labels, who are invested heavily in retail, he notes, the fear is that no one will buy the album. "That happens," he says, "because a lot of the bands are not very good."
Hip-Hop Reverberates in a Silent World
Things are done differently at the Lexington School for the Deaf in Queens.
Basketball referees call fouls in sign language, cheerleaders cheer with their hands, and fans applaud by waving wildly. Students call home from hallway videophone booths and chat in an urban dialect of signing that resembles the exaggerated gestures of rappers.
School plays and musicals are also done differently. Last year, the students performed a version of “Peter and the Wolf” by having the orchestra perform onstage so actors could feel the music through the stage floor and more easily take visual cues from the conductor.
But many of the students come from neighborhoods where rap music and hip-hop dance are popular, and they had long wanted to perform a hip-hop musical. So recently the school hired a professional hip-hop dance troupe from the Bronx called Full Circle Productions, led by Gabriel Dionisio and his wife, Ana Garcia.
Ms. Garcia, also known as Rockafella, spent a month teaching the students break dancing and the kind of flashy synchronized group routines often seen in music videos.
The school, in Jackson Heights, also brought in Alina Bloomgarden, a longtime producer at Lincoln Center, to help create and direct a hip-hop production called “Breakin’ Thru 2,” a semi-fictional drama told through break dancing and hip-hop music and interspersed with film and video clips. Written by Ms. Bloomgarden, the story parallels the school’s effort to stage a break-dancing musical. Since the entire cast and crew was deaf — down to the technical director and costume designer — Ms. Bloomgarden’s instructions were relayed in sign language.
The nine dancers, seventh and eighth graders classified as “profoundly deaf,” relied on visual cues for their timing and felt the sound from the large bass speakers under a stage floor designed to conduct sound vibrations. This worked especially well with the heavy bass beats of hip-hop music.
“A lot of people can’t imagine dancing without music, but we do hear the music — through our feet,” said Matthew Bryant, 14, from Far Rockaway, Queens.
Sara Selzer, 13, from Brooklyn, said deaf children are unable to truly appreciate rap. “I always thought hip-hop dancing was cool, but I never knew how to do it,” she said.
The performance center at the school, which educates children from preschool through high school, was built to accommodate productions for and by the deaf, and there are large screens to display subtitles and other information. The place looks spiffy too. It was created with a large donation from the designer Ralph Lauren, who grew up with a former administrator at the school and who stipulated the royal blue color of the carpet and seat upholstery.
“Real dancing isn’t just about hearing the music, but about feeling it, and these kids can feel the energy of the music,” said Mr. Dionisio, who is also known as Kwikstep. “These kids are better at appreciating what they can do with their bodies. You can see the joy they have at just being able to move freely, the sheer joy of movement. They move better than a lot of dancers with perfect hearing.”
They rehearsed the show for a month and jabbered nervously in sign language in a room backstage before the two performances, one last Friday morning for the school and a second that night for family, friends and alumni. The students, dressed in flashy warm-up suits, were elated to be dancing for their family and peers. They stirred up the crowd with hand signals and the crowd responded with yelps and hand signals. They spoke their lines with their hands, all while displaying hip-hop gestures. An on-stage interpreter translated the musical into speech for the nondeaf audience. The students kicked off dance routines by counting down with their fingers as well as feeling the beats of two musicians hired to play congas and African drums onstage.
Ms. Garcia led the students through an African dance routine and then an impressive routine of hip-hop and break-dance moves known as body-rock and popping. Soon the students formed a circle and took turns throwing their bodies on the ground and spinning and stutter-stepping.
One by one, they stepped forward and signed their real names and then gave the signs for their characters’ nicknames. Sarah stepped out and signed her character’s nickname, “Steel,” and began spinning deftly on the stage.
Then Matthew danced out and signed his name and mimed the motion of a basketball jump shot to signal his nickname, “Sure Shot.” School officials said he had become withdrawn in school, but performing had given him a shot of confidence. There were no signs of a withdrawn boy onstage. He dropped to the stage and spun into a headstand, then cartwheeled out of the circle and began jumping in jubilation.
The audience — fellow students, friends and relatives — raised and shook their hands in silent but thundering applause.
Coldwell Banker's Second Life
Don't think the Second Life land rush is over. Now a huge real estate firm is entering the 3D virtual world, as the service's headlong growth continues, reports
Real estate deals may be slowing in the real world, but in the three-dimensional online one of Second Life the market remains hot. Now Coldwell Banker, one of the nation's largest real estate brokerage firms, is entering Second Life, aiming to help bring order to the chaotic world of virtual real estate.
Coldwell Banker will open a virtual sales office and start selling virtual land at 9 a.m. on Friday. The company released the information exclusively to Fortune.
It's more evidence that the Second Life naysayers are on the defensive. Despite skepticism, software and system troubles, and extraordinary hype, the three-dimensional virtual world juggernaut continues.
Coldwell Banker has bought extensive tracts of property on the central "mainland" of Second Life. (Most companies own "islands" scattered all over.) It subdivided this digital land into 520 individual houses and living units, half of which it will sell and half it will rent.
Second Life: It's not a game
Coldwell, which employs over 120,000 real-world sales agents in the United States and operates in a total of 45 countries, isn't in Second Life to make money, says Charlie Young, the company's senior vice president for marketing. "In the end this is about buying and selling homes in the real world," he says. "We're trying to figure out how to reach what we call the 'new consumer'." Executives insist that any profits will be reinvested in Second Life real estate.
"We didn't want to make a play in Second Life just as a pure advertiser," Young explains. Like a few other savvy companies (One example is iVillage, which conducts tours of fun spots of Second Life), Coldwell Banker tried to figure out how to participate in the Second Life community, and "provide real value," in Young's words.
"A small number of land barons mostly control real estate in Second Life," he says, "and we thought we could bring real estate to the masses."
It's true that Second Life real estate transactions are daunting and confusing. Paul Carr, whose book "The Unofficial Tourists' Guide to Second Life" will be published April 19 by St. Martin's Griffin Press, predicts that with Second Life populated almost entirely by casual and newly-arrived users, a trusted brand that stands behind virtual land transactions will be welcomed by many.
Carr says the danger is not so much land barons like Anshe Chung (who famously claimed she had amassed over U.S. $1 million in digital assets in Second Life) as it is "people who offer to sell you the Golden Gate Bridge. For every legitimate real estate broker there are a thousand scammers."
Unlike almost every other big company, Coldwell's offices in the virtual world will be staffed with real people (in the form of avatars of course). They will not only sell virtual real estate, but also answer questions about real world transactions.
The employees will help combat a big problem of Second Life - the loneliness that sets in when you are wandering anywhere other than the sex clubs and new-member gateways. Much of the impressive virtual world landscape, even sections constructed at considerable expense by major corporations, is eerily empty.
Visitors to Coldwell's sales office (in a community called Ranchero) will, if they choose, be flown by helicopter to view available properties. (Coldwell is also selling houses in the Second Life neighborhoods Crowfoot, Elboya, Gorbash and Scurfield.)
Coldwell has designed and built its own houses, which buyers will not be allowed to alter. They will sell for about $20 (U.S.) each, lower than the average for similar properties in Second Life, says Young.
Cars of Second Life
Author Carr cautions Coldwell and any other company that enters this unfamiliar world, though, to beware: "Second Life is a place of extreme reactions. Many feel there should be no commercialism there at all."
Coldwell's properties will appeal to those who want to live in a virtual world that looks like the most banal regions of the real one - suburban tracts filled with uninspired architecture. The one exception, in the Gorbash region, offers modern hillside homes with a view of a dirigible dock, a pirate ship docked in a nearby cove, and the "for sale" signs put up by real estate speculators that endlessly dot Second Life's landscape. And even the suburban tracts lie next to a casino. (Gambling is a hot Second Life activity.)
The service remains a juggernaut. Linden Lab, which operates it, shows higher numbers than ever. Almost 5 million individuals have registered for Second Life since the service began, more than double the number at the turn of the year. And when I went online Wednesday night, almost 29,000 people were in the service at the same time. That figure seldom exceeded 20,000 before January. This growth continued during the last few months even as Linden wrestled with balky software, overloaded servers and extensive system downtime - troubles it seems, at least for now, to have come to grips with.
Coldwell Banker executives were eager to be the first real estate firm in Second Life. They failed when a small Italian firm got there last week. But for better or worse, they will hardly be the last.
Many Americans See Little Point To Web: Survey
A little under one-third of U.S. households have no Internet access and do not plan to get it, with most of the holdouts seeing little use for it in their lives, according to a new survey.
A little under one-third of U.S. households have no Internet access and do not plan to get it, with most of the holdouts seeing little use for it in their lives, according to a survey released Friday.
Park Associates, a Dallas-based technology market research firm, said 29 percent of U.S. households, or 31 million homes, do not have Internet access and do not intend to subscribe to an Internet service over the next 12 months.
The second annual National Technology Scan conducted by Park found the main reason potential customers say they do not subscribe to the Internet is because of the low value to their daily lives they perceive rather than concerns over cost.
Forty-four percent of these households say they are not interested in anything on the Internet, versus just 22 percent who say they cannot afford a computer or the cost of Internet service, the survey showed.
The answer "I'm not sure how to use the Internet" came from 17 percent of participants who do not subscribe. The response "I do all my e-commerce shopping and YouTube-watching at work" was cited by 14 percent of Internet-access refuseniks. Three percent said the Internet doesn't reach their homes.
The study found U.S. broadband adoption grew to 52 percent over 2006, up from 42 percent in 2005. Roughly half of new subscribers converted from slower-speed, dial-up Internet access while the other half of households had no prior access.
"The industry continues to chip away at the core of nonsubscribers, but has a ways to go," said John Barrett, director of research at Parks Associates.
"Entertainment applications will be the key. If anything will pull in the holdouts, it's going to be applications that make the Internet more akin to pay TV," he predicted.
Waiting to Show Model Behavior
The line of beauty, contrary to the 18th-century aesthetic theory of William Hogarth, does not undulate in nature along a serpentine curve, not when it is held up to the strict measurements of “America’s Next Top Model.”
Early Saturday morning the line was long and raggedy, erratic and agitated, littered with empty coffee cups and the sleepless faces, which creased in the sunlight, of beautiful women on a casting call for the show’s ninth season. The line started outside the Park Central hotel at Seventh Avenue and West 55th Street, turned the corner at Broadway and then doubled back onto West 56th Street. That very few of the 1,500 women standing there looked like models, in the very narrowly defined sense of high fashion, did not appear to be of importance. A contrapposto stance and the impatient tapping of high heels suggested that in each posing applicant there existed the confidence of an inner Naomi Campbell.
“I love Naomi because she is a diva,” said Bianca Golden, 18, who towered over the competition standing at 5 feet 11 inches, plus stilettos. Ms. Golden, with her hair up, wore a black cotton coat with tiny ruffled pleats at the waist, similar to the leather one worn by Ms. Campbell on Day 3 of her court-ordered community service last week for beaning an assistant with a cellphone. “After a while of being called fierce and everything, being a diva comes with the territory,” Ms. Golden said.
The depiction of models in popular culture increasingly emphasizes the stereotypical image of lucky, glamorous brats; their employers have tenuous moral codes. Their poor behavior has been nowhere more graphically and hypnotically displayed on television recently than in “The Agency,” the new VH-1 reality show about Wilhelmina Models, where the hung-over agents have no compunction about telling a prospective client that she looks too fat.
“America’s Next Top Model,” which began in 2003 and continues to rank well for the CW network with teenagers and young women, at least attempts to display some humanity in its casting and nurturing of contestants. The supermodel Tyra Banks, an executive producer of the show, serves as the voice of experience, often cushioning the all-too-harsh realities of the business in a motherly embrace, though she is also wont to scold a model brusquely for the cardinal sin — perhaps imperceptible to the layman viewer — of a cockeyed walk.
As the contest progresses each season, what usually begins with a message of friendship and sisterly support among young women of diverse backgrounds ultimately ends as a superficial blood sport. As one of the judges pointed out in favor of Yoanna House, the champion of Season 2, her features were “amazingly symmetrical.” Meanwhile the runner-up promises to the camera that she will rip Ms. House’s hair out.
Reality shows about modeling seem to have ennobled the profession in the eyes of many young women, despite recently exposed examples in the real modeling world of drug use, anger management problems and the issue of eating disorders that appear to be encouraged by the models’ agents and fashion designers.
Ms. Campbell’s choreographed fashion parade before the paparazzi, during what was supposed to be her punishment, may have underscored the fantasyland of what young people perceive to be the carefree life of a model today. How different that mindset of the constant performance would be if they were watching the earlier endeavors to capture the industry on film, like Frederick Wiseman’s 1980 documentary “Model,” which exposed how mind-numbingly boring the whole process of hair and makeup and sitting around waiting to take a photograph could be.
By coincidence that film happened to be playing Saturday afternoon at the Museum of the Moving Image at the same time that Michelle Mock-Falcon, the casting director for “Top Model,” was stationed at a conference table at the Park Central for the first look at aspiring contestants, a process that continues with auditions in 38 cities through April 21. About 100 women were allowed into the hotel at a time. They were numbered and corralled in a holding room, waiting to be called to meet with Ms. Mock-Falcon and to deliver a message to Ms. Banks on camera.
“There are girls who will do a song and dance for her, and there are girls who will cry, they can’t even get the words out,” Ms. Mock-Falcon said. “We’re looking for a look — if it’s different from the girls we’ve had in the past and if it’s unique in some way. We pretty much show Tyra everything.”
Ms. Mock-Falcon said that applicants are required to be at least 5 feet 7 inches and between the ages of 18 and 27, but many women standing outside in line did not fit that description. To listen to their stories and their melancholy yearning was sometimes sad or funny or delusional, but interviews with the women almost inevitably yielded the sort of narcissistic confession of Trisha Henson, a 25-year-old actress who could not reach 5 feet 7 inches on her tippy toes.
“It’s not so much about being a model as it is being on television,” Ms. Henson said. “I’m, like, accorded 15 minutes, and I want to take it while I still look hot.”
Geraldine Champion, from Tobyhanna, Pa., was waiting outside with a group of parents and friends of applicants for her daughter, Tanika, who was also under the height requirement but tried anyway.
“I drive a city bus,” Ms. Champion said. “It would be nice to see her plastered on the side of it.”
Pearl Testerman, 19 and 5 feet 9 inches, drove to New York with Natasha Latina, a co-worker from a Wilmington, Del., hair salon, who, “placed fifth in hair extensions at a competition last summer in Moscow that’s like the hairdresser Olympics,” Ms. Testerman said. “I was her model.”
Ms. Testerman, with wide-set eyes and glittery peach lipstick (actually eye shadow worn on her lips) had big plastic rollers in her hair, which she planned to remove at the last possible moment. “This is like a rush,” she said. “It’s a little high.” Like Ms. Campbell on Day 5 of her sentence, she carried a change of clothes, a little black dress in a big shopping bag.
“I want my hair to look great,” she said. “And I’ll change right here on the street if need be.”
The women were required to submit a lengthy application that included questions about their relationships with their parents and romantic partners, whether they have pets, their thoughts on religion and whether they had ever been to a nude beach. Asked to finish this sentence, “My life’s motto is ... ,” Rasheeda Jones, a 23-year-old from Newark, wrote on her application, “Live your life for you because no one else can.” Ms. Jones said she applied for the show two years ago, but when she reached the holding room with 80 other women, only three were allowed to audition that time. She argued with her mother Saturday morning about returning to the casting.
“She’s upset with me,” Ms. Jones said. “She wants me to go to college and all of that. But I like the attention of walking down a runway.”
France Urges Care on Skinny Models But Rejects Ban
France will not ban skinny models from Paris catwalks but will introduce a voluntary charter to make the fashion industry more aware of the health risks of being very thin, the Health Ministry said on Friday.
Designers, model agencies and others in the fashion industry have been widely attacked for promoting an emaciated look which critics say contributes to eating disorders in young women.
Countries like Spain, Italy, Brazil and India have taken steps to keep underweight models off their catwalks due to such concerns, which drew wide media attention following the deaths of two anorexic Latin American models in 2006.
The French Health Ministry official said a commission reviewing the issue would not recommend a blanket ban.
"We are very close to an agreement on a voluntary charter of engagement for the fashion industry, the media and advertising," he said.
"The idea of it is not regulation like the Spanish have done ... but to promote a strong campaign of awareness and information in the fashion industry," he added.
Fashion is big business in France. Luxury goods that are often advertised by young thin models who appear in posters and on catwalks, account for a large chunk of exports.
"It doesn't achieve anything to point fingers, blame or stigmatize the designers or model agencies," the official said.
The head of the French fashion federation had said in January that Paris would not take extra measures to ban ultra-thin models from catwalks because rules on their health were strict enough. However, concern remains.
"We must take a stand. When the girls weigh a kilo too much they are seen as failures," Paris town councilor Violette Baranda told Le Parisien newspaper. "There are some twisted designers who are making women thinner and thinner."
The Paris city council voted this week to pressure fashion show organizers to stop using skinny girls but the Health Ministry said it was symbolic and could not force fashion industry to change its habits.
Lebanese designer Elie Saab told Reuters in a recent interview he preferred women with curves.
But Chanel designer Karl Lagerfeld defended his models last year. "They have skinny bones," he said.
The issue was back on front pages this week after Donatella Versace, who owns part of one of Italy's most famous fashion houses, said her daughter was suffering from the eating disorder anorexia.
Schoolgirls Bullied Into Stripping Online
Bullies are no longer content to taunt their victims in the playground but are turning to cyberspace, according to Canadian researchers.
They are using e-mail, text messaging and social networking sites in new forms of victimization.
Cyber bullies are even forcing their girlfriends to undress in front of webcams and then sharing the images with others online.
"They're pressuring each other. This is particularly (true) for girls to send pictures of themselves with their tops off," said Professor Faye Mishna, of the University of Toronto, who has been researching the cyber abuse of children.
"Girls might send it to their boyfriend and she is pressured to do it thinking he's just going to see it. So she gives in and the next thing you know it's all over (the place)."
The images are even more likely to be passed on if the couple breaks up, said Mishna who headed a research team that held focus groups with 47 students in grades 5-12.
Preliminary results from the research show so-called computer geeks are becoming the new schoolyard bullies. Final results of the study, which will be completed in June, are expected to be published in the autumn.
"Traditional bullying is a power differential," Mishna said in an interview.
"The power before could have been age, size, smartness, popularity, ability. Now it's the perceived anonymous nature. We'd like to find out how anonymous it really is. The power now is you can put it all over (the place)."
The focus groups also revealed victims refuse to tell an adult about the abuse because they fear they will be punished in order to be protected.
"They're scared that their parents will take away their computer privileges," Mishna said.
Students also thought it was pointless to tell parents about cyber bullies because they could not identify the culprits.
"Friends are giving their passwords out to somebody who they think is a good friend," said Mishna. "Then they use it to bully somebody else."
Traditional bullying is still continuing on school grounds, but technology has enabled the abuse to continue at home.
"This hasn't replaced it, unfortunately," Mishna said.
Lights, Camera, Tirade! Hollywood’s Elite Seen Online
In the YouTube age, Hollywood celebrities might want to rethink whether to have temper tantrums — or, at least, have them far from the cameras on movie sets.
A video clip from the filming of “I Heart Huckabees,” the 2004 existential comedy directed by David O. Russell, surfaced on YouTube and several gossip blogs last week. The 2 1/2-minute video shows the actress Lily Tomlin expressing her frustration at Mr. Russell, who retaliates by sweeping papers off the desk in front of her, kicking a part of the set, and knocking a lamp to the floor. The tirade is so abusive that only one sentence — “Act like a grown-up; you’re not a baby” — is printable.
Another video clip that was posted online last week shows Ms. Tomlin losing her temper during a shoot and cursing at Mr. Russell and her fellow actors.
The set of “I Heart Huckabees” was notoriously fractious, with Ms. Tomlin and Mr. Russell clashing on several occasions. And Mr. Russell is well known for his violent conflict resolution: He was in a fistfight with the actor George Clooney on the set of the 1999 film “Three Kings,” and once resolved a casting dispute with the director Christopher Nolan by putting Mr. Nolan into a headlock at a Hollywood party.
Reports of the video’s existence first surfaced in a 2004 article in The New York Times about Mr. Russell and the movie’s filming, but last Monday marked the first time that either video was made available to the public. Almost as soon as they were posted, efforts were made to quash the leak. The original versions of the two videos, named “Screaming Huckabees” and “Screaming Huckabees 2,” were soon removed from YouTube, apparently by their original poster.
The videos were reposted and removed several times over the week, but by the weekend, they appeared to be firmly entrenched in the blogosphere. One version of Mr. Russell’s tantrum that was posted on YouTube on Tuesday had been played more than 150,000 times by Saturday, making it one of the week’s 50 most viewed videos.
Mr. Russell and his representatives did not respond to requests for comment on the clips. Neither did Ms. Tomlin’s representatives, although the actress addressed the matter in an interview published Thursday with The Miami New Times, an alternative newspaper.
“There was a lot of pressure in making the movie,” she said, adding that she was “not the least bit upset” about the leaks. “Adults have fights and go through stuff.”
Cuban, EFF Lawyer Spar Over YouTube and the DMCA at EFF Pioneer Awards
Wearing jeans, sneakers, and a T-shirt that read "I'd rather be fighting the man," Dallas Mavericks owner Mark Cuban last night defended his view that YouTube is eroding support for copyrights and that its actions should not qualify for "safe harbor" under the Digital Millenium Copyright Act (DMCA). Calling it the "cockroach in the kitchen," Cuban argued forcefully that YouTube, like Napster before it, is training up an entire generation to think that "anything goes" in the realm of copyright, and that Google's recent purchase of the company only gives their actions more legitimacy.
The occasion for the remarks was the EFF's annual "Pioneer Awards," which were this year handed out at the ETech conference in San Diego, where I'm on location. Cuban squared off for a friendly debate with the EFF's Fred von Lohmann on the YouTube issue. von Lohmann made his own impassioned case for the importance of DMCA safe harbors to companies like YouTube, and said he worried that if the recent court case with Viacom goes against YouTube, the entire concept of the safe harbor could be weakened dramatically.
Cuban, who was involved in negotiations around the DMCA when it was first drafted, countered that the law was never meant to apply to a company like YouTube that offered anonymous access to its hosting. It was designed, he said, for ISPs that know their customers and don't derive large portions of their traffic from infringing content. Von Lohmann countered that anonymous Internet speech is an important principle; there's no reason to require a company like YouTube to require name and address information simply to let users participate. Besides, the DMCA already gives companies an easy way to address the problem—the takedown notice.
The debate then shifted to "red flag knowledge," or the level of knowledge that a company must have about infringing uses of its services before it is no longer liable for DMCA safe harbor protections. von Lohmann pointed out that "general knowledge" that infringement does occur simply cannot be the standard, or every Web company from Amazon to eBay would be in serious jeopardy. The question then becomes: how much infringement is too much? According to Cuban, "everyone knows" that YouTube is stuffed with infringing content, and that level of knowledge should be good enough to revoke their claimed DMCA exemption.
Should YouTube start filtering content before it goes up, Cuban claimed he would have no problem with the company, even if infringing material made it through the screen. "At least they would be trying," he said.
Cuban is an interesting spokesman for copyright concerns since he has a broad perspective; as the owner of HDNet, he worries about having his content given away for free without his consent, but he's also someone who has funded EFF campaigns in the past, especially when the group defended Grokster's claim to legality.
But it wasn't Cuban who was cutting the big checks this time around. Mitch Kapor, who made his money designing Lotus 1-2-3, was an EFF cofounder, and he has just agreed to endow the group with another million dollars out of his personal piggybank. That kind of money should keep the EFF litigating (and debating the DMCA) for decades to come.
One of the strangest aspects of the debate was seeing an EFF lawyer defend the DMCA, which usually comes in for a drubbing due to its anticircumvention provision. But von Lohmann told Ars Technica after the debate that the safe harbor section has actually allowed plenty of businesses to flourish that might otherwise have been mired in legal problems, and that it has generally worked well. If that protection is yanked away from YouTube, though, the scope of the safe harbor rules would be dramatically limited. With several cases against YouTube pending (and several of them due to be decided by the end of the summer), we may know sooner rather than later how the courts choose to interpret this section of the law, and that guidance will condition how tech companies behave.
Viacom Hates Open Source (and Small Children in the Third World)
Some of you may be visiting this blog to read about the OLPC running an NES emulator, something that was developed by a couple of us here at the OSU Open Source Lab (which, again, does NOT support piracy; those are legally owned cartridges). To accompany that article, Brad Morgan uploaded a video to YouTube to supplement our respective blog posts explaining how we accomplished this task. When you try to watch the video, however, you may be surprised to find that instead of a video you’re presented with the following message:
This video is no longer available due to a copyright claim by Viacom International Inc.
Also, you may have noticed that Brad’s user account on YouTube (as he uploaded the video) no longer has any videos listed. I tried using YouTube’s search to see if the video was maybe lost or moved, but it seems to be completely removed from the website.
Quite honestly, this is ridiculous. YouTube just caved in to the request from Viacom without even investigating the completely bogus claim; but that’s not what’s the worst of it all. The worst is that Viacom International Inc. has no grounds, whatsoever, to request a removal of that video from YouTube. I seriously doubt Viacom International Inc. has the rights to Super Mario Bros and Super Mario Bros 3. You may notice the large Nintendo logo in the middle of the Mario/Duck Hunt cartridge. The video was shot in our quiet conference room with the lights off, and there isn’t anything in there that belongs to Viacom (and I know we weren’t playing Zoop on an SNES emulator — the laptop can barely handle a fullscreen NES emulator, even after hacking).
I’m quite sure Viacom International Inc. doesn’t have any rights to the OLPC, either. And even if they did, it’s quite obviously in the public eye and I seriously doubt that it’s illegal to record a video of one of your possessions (especially something in the public eye, like the OLPC). The OLPC is an open source project collaborating to help children in the third world, so I seriously doubt they would be mad at us posting a video in an educational post about the project.
On the note of the educational post, even if somehow Viacom has the rights to the content of the video it’s covered under fair use. I’m not an EFF lawyer, but I’m pretty sure that even if we were playing Zoop (which, again, we were not) we would be covered.
With all that said, this must mean that Viacom’s either attacking videos because YouTube will just blindly comply to any and all complaints, or perhaps they hate open source and small children in the third world.
Broadcast Denied: It's Easier Than You Think (or Even Than it Ought to be) to Get Your Video Pulled from YouTube.
Robert X. Cringely
Old video never dies, it just comes back to haunt you. I experienced this myself when an interview I did with the BBC found its way into a very prominent position on the A&E Biography episode about Bill Gates. I said it, yes. It was true, yes. I just didn't expect THAT interview to play on A&E three years later. Silly me.
YouTube and similar video-sharing sites compound this effect by making these clips available essentially forever. That is unless they are taken down at the request of the copyright holder, which is what this column is about.
A reader with the screen name Bursting Squidoo last fall posted a couple clips taken from my show "Triumph of the Nerds" as part of a web site he created concerning the current legal battle between Apple and Burst.com. The legal part is an old story, of course. Apple and Burst are fighting over patents Apple says are invalid and Burst says are not only valid but Apple is infringing. The outcome of this case, which is still a year from trial, will have a huge impact on Internet media of all kinds.
Mr. Squidoo is on the side of Burst.com in this dispute. He's apparently a Burst investor and a member of the very active Yahoo Group of Burst investors and those interested in the company.
The video clips Squidoo posted to YouTube are probably among those Steve Jobs would like to forget, especially as the CEO of a company charged with patent infringement. Since the clips were challenged and withdrawn, I can't point you to them, but I CAN share with you the money quote, courtesy of the "Triumph of the Nerds" transcript available all along right here on pbs.org:
"Steve Jobs: Ultimately it comes down to taste. It comes down to trying to expose yourself to the best things that humans have done and then try to bring those things in to what you're doing. I mean Picasso had a saying, he said good artists copy, great artists steal. And we have always been shameless about stealing great ideas and I think part of what made the Macintosh great was that the people working on it were musicians and poets and artists and zoologists and historians who also happened to be the best computer scientists in the world."
Not exactly the sort of statement you want your opposition to show to the jury in a patent infringement trial, is it?
Squidoo posted the clips on YouTube in October, where they lived until March 20, 2007, when suddenly they didn't. YouTube had removed them from its servers sending this message:
"Dear Member: This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by NBD Television Ltd. claiming that this material is infringing:
"Great Artists Steal - Triumph of the Nerds: http://www.youtube.com/watch?v=IeNumls8hcE
"Please Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to avoid future strikes against your account, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube's copyright policy, please read the Copyright Tips guide.
"If you elect to send us a counter notice, please go to our Help Center to access the instructions. Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
Don't you wish that notices like this one were signed by real people with real names? I do.
But no matter who signed it, there is a lot of interesting information presented in this notice. Before I tear it apart, please understand that while I wrote and hosted Triumph of the Nerds and wrote the book upon which the series was based, I do not own the copyright for the show (I do for the book, though). So whatever Squidoo has done here doesn't infringe any of MY rights.
Having said that, I think that he probably DID infringe the rights of the Triumph of the Nerds copyright holder. Squidoo is relying on fair use to give him the right to excerpt the show, but I don't think fair use normally covers clips that are five minutes long and extensively recut at that. Thirty seconds, maybe (plenty to get the money quote), but five minutes? I don't think so. Squidoo's error was in trying too hard to place that quote in the proper context. He went too far.
But Squidoo DIDN'T violate the copyright of NBD Television Ltd., because NBD -- a London-based distributor of films about music and musicians -- DOESN'T HOLD THE COPYRIGHT TO TRIUMPH OF THE NERDS. That copyright is owned by Oregon Public Broadcasting, which made the show.
I contacted Rebecca Morris, chief counsel at Oregon Public Broadcasting. She had not heard of NBD Television Ltd. and had never been contacted for permission to act on behalf of Oregon Public Broadcasting in this matter.
I contacted NBD Television Ltd. And they did not reply.
I contacted YouTube. And they spent all day coming up with this statement: "We do not comment on individual DMCA notifications. However, we have a comprehensive copyright infringement notification and counter-notification system in place. More details are available at http://www.youtube.com/t/dmca_policy."
That YouTube statement is again not from a person but from a company.
Now here is what makes this little episode interesting. I spent about 20 minutes looking for Triumph of the Nerds video clips on YouTube and came up with 15. I am sure there are others. Eight of these are Steve Jobs explaining how Microsoft has no taste. Again from the show transcript:
"Steve Jobs: The only problem with Microsoft is they just have no taste, they have absolutely no taste, and what that means is -- I don't mean that in a small way I mean that in a big way. In the sense that they don't think of original ideas and they don't bring much culture into their products. And you say why is that important -- well you know proportionally spaced fonts come from type setting and beautiful books, that's where one gets the idea -- if it weren't for the Mac they would never have that in their products and so I guess I am saddened, not by Microsoft's success -- I have no problem with their success, they've earned their success for the most part. I have a problem with the fact that they just make really third rate products."
Why didn't NBD Television Ltd. ask YouTube to pull down those clips, which have been seen a total of several hundred thousand times? They are far more popular than Squidoo's Picasso quote.
Talk about copyright infringement, though. There's a guy named AppleRumorTracker on YouTube who recut much of "Triumph of the Nerds" into a pretty darned good five-part, 46-minute compilation of interviews with only the occasional question in my voice sneaking through. He removed me from my own show. AppleRumorTracker even changed the title of the show. Why didn't NBD Television Ltd. ask YouTube to pull down those clips, which suck vastly more value from the original project?
They only pulled the two video clips that were relevant to a high-profile lawsuit, though I hardly think Apple v. Burst.com is well known in London, or at least I wouldn't have expected it to be.
YouTube has a careful process here. They let people post pretty much anything, then count on copyright holders to protest, at which point YouTube automatically brings down the clips. There is a counter-notification system where a guy like Bursting Squidoo can claim that NBD Television Ltd. isn't the copyright holder and therefore isn't qualified to demand the clips be removed. The Digital Millenium Copyright Act (DMCA) is quite specific about this -- I can't get YouTube to remove Triumph of the Nerds clips, either, only the actual copyright holder Oregon Public Broadcasting can do that.
The DMCA also has equal penalties for those who infringe and those who falsely claim copyright holder status -- something YouTube glosses over in its rush to avoid counter notifications. Making a false DMCA violation claim and making a false counterclaim are equally illegal, though maybe that doesn't have much bearing in the UK.
Of course this could all be quite innocent -- just a simple misunderstanding, but I find it suspicious. Why those two clips and none of the others? Could this be more "pretexting" like Hewlett Packard used last year to illegally gain the telephone records of reporters?
But I'll keep on this story until I know for sure. Count on that.
Our Case Against YouTube
Viacom initiated litigation against YouTube and Google this month for their long-standing infringement of Viacom's copyrights. Our action has stirred discussion about the Digital Millennium Copyright Act (DMCA) and quite a lot of confusion.
First, let's narrow the debate. YouTube defends itself from copyright infringement based on one narrow slice of the DMCA: protecting service providers who store copyrighted material solely and simply "at the direction of a user." This defense is available only to users who do not have "knowledge" of infringement or who "expeditiously" take down material when they find out they are infringing a copyright. The defense is not available to someone who "derives a financial benefit" from copyrighted material he stores if he has the "right and ability to control" it.
The DMCA strikes a logical compromise among competing interests and is one of many sound policies that have allowed the Web to develop and flourish. Under the act, Web hosting companies have been able to develop with no obligation to monitor every file loaded and downloaded by their users. E-mail operators have been able to safely maintain their facilities without reading every message that passes through their systems. File storage Web sites allow users to back up their hard drives without needing to patrol every file and without fear of copyright liability.
What the DMCA doesn't do is protect YouTube.
YouTube has described itself as the place to go for video. It is far more than the kind of passive Web host or e-mail service the DMCA protects -- it is an entertainment destination. The public at large is not attracted to YouTube's storage facility or technical functionality -- people are attracted to the entertainment value of what's on the site.
And YouTube reaps financial benefits from that attraction through selling the traffic to advertisers. While an e-mail provider is paid to facilitate and manage the exchange of e-mail traffic, and competes in that fashion, YouTube lures consumers and competes by having great content -- a resoundingly substantial part of which it did not create or pay for.
Is it fair to burden YouTube with finding content on its site that infringes others' copyright? Putting the burden on the owners of creative works would require every copyright owner, big and small, to patrol the Web continually on an ever-burgeoning number of sites. That's hardly a workable or equitable solution. And it would tend to disadvantage ventures such as the one recently announced by NBC Universal and News Corp. that are built on respect for copyright. Under the law, the obligation is right where it belongs: on the people who derive a benefit from the creative works and are in the position to keep infringement out of their businesses.
Will forcing Google and YouTube to obey the law stifle innovation? Quite the opposite. Intellectual property is worth $650 billion a year to the U.S. economy. Not only does intellectual property drive our exports, it's a key part of what distinguishes developed economies from developing ones. Protecting intellectual property spurs investment and thereby the creation of new technologies and creative entertainment. This creates jobs and benefits consumers. Google and YouTube wouldn't be here if not for investment in software and technologies spurred by patent and copyright laws. It's time they respected them.
The writer is general counsel of Viacom.
An End Run on Copyright Law
In a March 24 op-ed, Viacom's general counsel, Michael Fricklas, defended his company's lawsuit against YouTube and Google. Resisting the urge to litigate this case in public, we still thought it useful to reply briefly.
Viacom's lawsuit is an attack on the way people communicate on the Web and on the platforms that allow people to make the Internet their own.
In the Digital Millennium Copyright Act, Congress struck a careful balance between the rights of the copyright holder and the need to protect the Internet as an innovative communication frontier, not as another venue for litigation.
Content-hosting sites such as YouTube, Craigslist and MySpace that want to take advantage of the DMCA's safe harbors must promptly remove infringing content if the copyright owner so requests, giving owners a quick remedy that doesn't require going to court. Copyright owners, in return, have the responsibility to identify infringing material they want removed. Viacom's lawyers helped craft this law but apparently don't like it, after all. They want to shirk the responsibility Congress gave them.
Placing that burden on hosting platforms would turn the DMCA on its head.
Viacom is attempting to rewrite established copyright law through a baseless lawsuit. In February, after negotiations broke down, Viacom requested that YouTube take down more than 100,000 videos. We did so immediately, working through a weekend. Viacom later withdrew some of those requests, apparently realizing that those videos were not infringing, after all. Though Viacom seems unable to determine what constitutes infringing content, its lawyers believe that we should have the responsibility and ability to do it for them. Fortunately, the law is clear, and on our side.
Google, Managing Counsel, Litigation
Mountain View, Calif.
Crave Talk: Can the Me-Too Tubes Buy the Zeitgeist?
Money can't buy you love, said the Beatles, but maybe they didn't anticipate the financial daisy-cutter bomb that is a 21st-century multinational. With the news that News Corp and NBC plan to build a rival to YouTube, it's time to ask the big question: can big corporations buy the zeitgeist or will they inevitably screw up?
YouTube has every human on the planet with eyeballs and a first-world paycheck glued to it in office hours. Everyone is afraid of Google's new armament. 20th Century Fox can see the drones watching The Simpsons on YouTube, but it must give it quite some itch to know it's not reaming in more cash as they do.
The News Corp/NBC platform will offer free, full-length films and television shows, with the added bonus that the content is strictly legal. But is the YouTube audience really sat in their swivel chairs feeling slightly mournful that they may be infringing a copyright? Probably not. Will they react with feverish excitement at the thought of ad-supported content? Er, no.
So what is left for the Me-Too Tubes? How can a YouTube rival garner similar success? Well, option one would have been to buy YouTube, but Google already did that -- stuffing it gracelessly into its podgy little mouth and patting its grossly distended belly.
Option two is for NBC and News Corp to do what Microsoft did with the Zune and add extra features no one really wants to an existing successful product -- in the Zune's case, the iPod. Often this doesn't work -- it certainly didn't with the Zune. They could also follow Microsoft's lead, and pay mindless stooges to infiltrate university campuses extolling the brilliance of Me-Too Tube. Again, this method failed for Zune, presumably because the word-of-mouth theory doesn't work in university -- 90 per cent of the 'receivers' are too drunk to recall what was virally marketed at them.
They could try other approaches. Microsoft's assualt on the relatively 'cool' Netscape browser was surprisingly effective -- although it did have the small advantage of inextricably tying the browser to an operating system like an ugly barnacle. Me-Too Tube has the mastodonic weight of copyright law on its side, though -- it seems smart to set up a competitor to show willing and then go nuclear with the lawyers. Viacom doesn't exactly look like the aggrieved party in its mammoth suit against YouTube.
It's too early to tell whether Me-Too Tube has any chance of emulating the success of its nemesis. But there is something incredibly boring and sad about giant companies who constantly chase the fleeing tailcoats of the latest Internet trends. Like the kid who leant over and copied you in art class, News Corp/NBC are the archetypal corporation -- lumbering and so very uncool.
YouTube Awards the Top of Its Heap
Et tu, YouTube? The mellow Silicon Valley “video-sharing site,” once styled as nothing more than a converted loft space for oddball videos, is looking more Hollywood by the minute. Back in the day, say, six months ago, YouTube was still meant to be pure NoCal: no judgments, no hierarchies, big bandwidth and lots of freedom. YouTube videographers weren’t supposed to get stars on their doors from the powers that be.
But now we have the 2006 YouTube Video Awards, a product — so the intro on the awards page says — of “the YouTube community.” But given that the rushed and almost certainly screwy voting commenced only once the nominees were published by YouTube, this community project doesn’t seem quite organic. The dread idea of arts administration has come to YouTube. And in a real insult to the speedy Web world, this 2006 event has happened well into spring 2007, honoring bygone achievements. That seems very Internal Revenue Service, not to mention very Oscars.
So, oh, looky here in the winners’ circle. We’ve got the neato guys who dance on treadmills, Smosh, the Wine Kone and Ask a Ninja. If these names sounds fresh to you, well, then, YouTube’s done its job, and maybe you’ll stop by, hang out and find something that actually answers to your tastes.
To older hands, the award winners, announced yesterday, will be recognizable as YouTube veterans, and their selection here makes blindingly clear the site’s slacker aesthetic (Smosh, OK Go and the Wine Kone); its mush politics (the Free Hugs Campaign); and its chronic oscillation between absurdism (“Ask a Ninja”) and emo (“Say It’s Possible”).
This value system is not intrinsically worse than the one that determines prime-time television’s crisp, white-collar aesthetic; its mainstream politics; and its chronic oscillation between punchy and sappy. It’s just that YouTube’s not really supposed to have any aesthetic or ideological principles, is it? YouTube’s video superlatives might make you think that Google might one day hand out prizes for best or shadiest Web site. Or that Wikipedia might honor the most brilliant idea. YouTube, Google and Wikipedia should be low-key clearinghouses of shared information. Not prosceniums.
YouTube’s winners also reveal the site’s mystified attitude toward animation, in the form of the sweet but dull “Kiwi!” cartoon, which takes the most adorable video prize. Recently, humble animation has now become so refined and poignant in various high-end graduate programs that even cartoons about little birds now carry the slightly pretentious air of French film. (Animators often discuss credentials and technique in the prefaces to their videos on YouTube; video makers, on the contrary, want everything to look tossed off.)
The widespread animus toward “lonelygirl15,” the hit online series that got its start on YouTube but then seemed to grow too big for its britches, also seems to be alive and well at the YouTube Awards, where it was nominated for several awards but won nothing.
Hostility toward the project comes through instead in choices like “Ask a Ninja” and “The Wine Kone,” videos by two ubiquitous male soloists who have lampooned the series. The YouTube boys’ club is packed. The Wine Kone, a handsome guy with a steady gaze and a wheezy chortle, holds forth there on belly-button issues, while the Ninja plays older brother, offering advice and pushing Net neutrality, the so-called First Amendment of the Web.
Terra Naomi with her heartbreaking “Say It’s Possible” won best music video here. That’s a wonderful choice. The song has got a sustained ache to it, and the visual setup for the video — the singer at the guitar crowding the camera, before an unused keyboard — is painterly, in the tradition of the best YouTube bedroom guitar videos. (Unlike the funny OK Go guys on their treadmills; I like their pluck, but it’s too MTV for YouTube.) With the look of a young Keith Richards, Terra Naomi is the only girl cool enough to make the cut in the YouTube awards.
The pity of these awards is ultimately that they might be some people’s first contact with YouTube. That would be sad. My words of advice for people new to YouTube: Forget awards, and forget hip.
Instead, follow your pre-Internet interests to vintage film on YouTube, and that will lead you to video commentary, parodies and community. For starters, why not track down Ernest Hemingway with a man-size marlin, Shirley Verrett as Lady Macbeth, interviews with Sigmund Freud or color film from the Korean War?
'Casino Royale' Blu-Ray Breaks 100,000 Unit Milestone
It's official: Sony has announced that 'Casino Royale' on Blu-ray is the first high-def disc title to ship over 100,000 units.
'Royale' has been breaking records ever since its Blu-ray debut on March 13 -- as we've previously reported, it was the first high-def disc to crack the top ten on Amazon's overall DVD best sellers list, and it easily topped Nielsen VideoScan's Blu-ray chart its first week out.
And while the 100,000 figure for 'Casino Royale' has been rumored for several days now, Sony Pictures Home Entertainment is now comfirming it in a press release, hitting the wires today.
The strong performance for 'Royale' is certainly a healthy sign for the nine month old Blu-ray format. Not only has Blu-ray hit the 100,000 unit mark faster than rival format HD DVD, it hits the milestone two months faster than standard-def DVD did back in 1998 (with 'Air Force One'), when DVD was eleven months old.
SPHE Worldwide President David Bishop praised the news as a demonstrative of Blu-ray's robust growth in the marketplace, adding that "Blu-ray has accounted for approximately 70 percent of the high-definition market since the first week in January, and as that market share continues to grow, we are dedicated to providing consumers with the content they crave."
And while it's too soon to tell whether 'Casino Royale' will be to Blu-ray what 'The Matrix' was to standard-def DVD (ie: the format's de facto showcase disc), one certainly gets the feeling that Sony isn't dissuading such comparisons. 'Royale' director Martin Campbell is quoted in the Sony release marveling at the disc's picture quality: "It's just unbelievable. Clearly, it's fantastic. The comparison between standard def DVD and Blu-ray is quite stunning and quite transparent to the master. It's precisely what would make me want to buy a copy."
Undeterred by Blu-Ray Hacks, Sony Unveils Yet Another Cipher for DRM
Sony announced late last week that they have invented a new encryption mechanism known as "CLEFIA," a block cipher algorithm designed to help content producers deliver "advanced copy protection" with their products. The name comes from a play on the French word clef, which means "key." We can't help but snicker, given that it has been key-sniffing that has been undoing DRM as of late.
CLEFIA is aimed at portable electronics and home entertainment products, and can be applied to music, images, or even video. The big claim from Sony is that CLEFIA has "sufficient immunity against known cryptanalytic attacks," yet it has relatively low hardware requirements. The company plans to formally present the CLEFIA algorithm at the Fast Software Encryption 2007 conference in Luxembourg.
Sony claims that the new algorithm is extremely efficient; when implemented in hardware, it can achieve a maximum throughput of 1.42 Gbps using a 0.09 micrometer CMOS standard cell library and gate size of 6.1K, which Sony says is a new record for hardware gate efficiency.
The idea is to make it possible to implement the protection as a relatively inexpensive hardware component for media playback devices. Software implementations are also possible, and Sony claims that they will achieve "high speed performance on a wide variety of processors," although the company declined to give specific figures.
Block ciphers are a common cryptographic tool used in many existing algorithms, including the US government encryption standard DES—a variant of which has been used to serve secure web pages—and its replacement, AES. Unlike simple ciphers that translate a character at a time, block ciphers encrypt entire blocks of text at once, using a secret key which can be of varying lengths. CLEFIA uses a block size of 128 bits, and can be configured to use keys of 128, 192, or 256 bits.
Theory versus praxis
So are Sony's claims of the cipher being "immune" to attacks real or just marketing? Block ciphers can be made resistant against garden variety brute-force attacks simply by using longer key lengths. The length of the key required to prevent these attacks continues to increase as CPUs get faster—key lengths of 80 bits were once considered completely secure, but today 128 bit keys are commonly used by applications such as web browsers for SSL.
Yet brute-force is rarely the method by which DRM schemes are cracked. Most approaches attempt to capture the keys directly, either by scanning a computer's memory while it is playing back the movie with a software player, or capturing it while it is transit from the optical drive to the computer by sniffing the data going through a USB cable. The AACS copy protection used on Blu-ray and HD DVD discs, for example, has already been broken in this way, although the specification anticipated this occurring and allows for compromised keys to be revoked at a future date.
CLEFIA will not magically make future content protection "unhackable," although it may make it cheaper to add copy protection to more types of devices, which is really what Sony is going for here.
Microsoft to Release Souped-Up Xbox 360
The Microsoft Xbox 360 Elite, which features a 120-gigabyte hard drive and a high-definition video connection, is scheduled to hit stores on April 29.
Let the games begin.
Microsoft Corp. announced this week it plans to sell an upgraded Xbox 360 video game system late next month.
Sony's PlayStation 3 and Nintendo's Wii -- both heavy competition for Xbox 360 -- were released in November.
Microsoft focused on non-video game changes with the latest upgrade, including an amped-up hard drive so owners can watch more movies and store music.
The Xbox 360 Elite will sell for $480.
Jay Krochmal, a store service manager at Best Buy in Danbury, said only a couple of people have asked about the new models this week.
"It's been quiet," he said.
But Krochmal said Xbox's popularity means anticipation will grow. In November, shoppers camped outside the store waiting to buy the new $600 PlayStation 3. But its popularity steadily dropped as Nintendo's Wii became more popular, Krochmal said.
Xbox 360 outsold Sony's PlayStation 3 in January and February, according to market researcher NPD Group, while falling behind Nintendo's Wii.
Krochmal doesn't expect the same camping scene for an upgraded XBox -- but he wouldn't dismiss the possibility.
"Xbox has some hardcore fans," he said, adding it's the most popular video game device at the store.
The Xbox 360 Elite is expected to hit stores April 29.
The latest upgrades feature a 120-gigabyte hard drive, compared to the current 20-gigabyte system. Consumers with the current $400 device can buy the new hard drive for about $180.
The current hard drive filled up too quickly with music, movies, TV shows and games from the Xbox Live Marketplace online store, said Peter Moore, a corporate vice president in Microsoft's Interactive Entertainment Group.
Xbox 360 users can connect the console to their home network and then stream movies, music and other material from the computer to the Xbox and television.
Unlike Sony, Microsoft hasn't added a high-definition DVD player to its video game console. It sells external HD DVD players for the Xbox for $200.
Krochmal said an added high-definition video connection should also draw customers. That sends content from the console to a television without losing picture or sound quality.
Danbury resident Moises Olmos said he plans to buy the new Xbox 360.
"It's a gaming system everyone can play with," he said while playing an Xbox 360 game at Game Stop in the Danbury Fair mall.
Karen Koza, an associate professor at Western Connecticut State University's Ancell School of Business, said Microsoft was smart to build anticipation by unveiling the details a month early.
"They want that hype. They want that time for other channels (like the media) to grab onto it," she said.
Retirees Discover Video Games
For 133 years the School Sisters of Notre Dame have lived here in a thick forest just up the hill from the Tangipahoa River. In a modest but stately compound called St. Mary of the Pines, 52 retired members of this Roman Catholic order spend much of their time as the order’s members have since the 19th century. They read and garden, fish and sew. They pray five times a day.
But many also have a new hobby, one they credit for keeping their hands steady and minds sharp. They play video games. Every day residents go to the seven-terminal “Computer Cove” to click furiously on colorful, nonviolent, relatively simple games like Bejeweled, Bookworm and Chuzzle.
Though they live in a remote grove, the women of St. Mary are actually part of a vast and growing community of video-game-playing baby boomers and their parents, especially women.
Anxious about the mental cost of aging, older people are turning to games that rely on quick thinking to stimulate brain activity. A step slower than in their youth, they are using digital recreations of bowling, tennis and golf.
Spurred by the popularity of the Nintendo Wii game system among older players, Erickson Retirement Communities, based in Baltimore, which manages 18 campuses around the country with 19,000 total residents, is installing the consoles at each location.
[On Thursday Norwegian Cruise Line announced that it was installing Wii systems on all its ships.]
PopCap Games in Seattle, the maker of the diversions so popular at St. Mary, says its games have been downloaded more than 200 million times since the company was founded in 2000. A spokesman said that the company was stunned by results of a customer survey last year: 71 percent of its players were older than 40, 47 percent were older than 50, and 76 percent of PopCap players were women.
It turns out that older users not only play video games more often than their younger counterparts but also spend more time playing per session. Pogo.com is a Web site that offers “casual” games, easy to play and generally less complicated than the war, sports and strategy games favored by hard-core gamers. According to Electronic Arts, the game publisher that runs the site, people 50 and older were 28 percent of the visitors in February but accounted for more than 40 percent of total time spent on the site. On average women spent 35 percent longer on the site each day than men.
“Baby boomers and up are definitely our fastest-growing demographic, and it is because the fear factor is diminishing,” said Beatrice Spaine, the Pogo.com marketing director. “Women come for the games, but they stay for the community. Women like to chat, and these games online are a way to do that. It’s kind of a MySpace for seniors.”
A couple of hours before heading to a harmonica concert recently, Sister Jean-Marie Smith, 61 and a retired teacher, paused her round of Bookworm (a digital take on the classic Scrabble word game) at the prodigious score of 34,765,180 to explain how she joined the gamer generation after moving to St. Mary last summer.
She has attention-deficit hyperactivity disorder, “and I just could not focus on anything,” she said. “I constantly have to find things to keep my attention. But the first time I played Bookworm, and that red tile hit the bottom and I lost, I stood up and said, ‘Me and this computer are going to have a talk.’ The fact that it’s interactive and also competitive really draws me in and helps me focus.”
Sister Marie Richard Eckerle, 72, who introduced the games at St. Mary, smiled and said: “I hear all the time from sisters when they first see the computer, ‘I can’t do it, I can’t do it, I can’t do it.’ And then they can do it. And they actually like it.”
The game industry has been pleasantly surprised to discover this growing audience that is more familiar with Little Richard than Ludacris, and some companies, particularly Nintendo and makers of easy-to-play casual games, have begun to cater specifically to older players. (Microsoft and Sony, two other big game companies, still focus mostly on young men.)
“We actually use something called the ‘Mom Test,’ ” said John Vechey, 28, a founder of PopCap. “When we were first making games like Bejeweled, we would sit our moms in front of the computers and just let them play, and that’s a big way how we would see what works in an accessible, casual game. The problem is that our moms have gotten a little too savvy, so we’re always looking for new moms to test on.”
Aside from casual PC games the other big spur to increased gaming by older players has been the recent introduction of two new game systems by Nintendo of Japan. The hand-held DS and the home Wii console (pronounced “we”) are specifically meant to buck the industry trend toward increasing complexity and instead provide a simple yet captivating experience for players of all ages and degrees of coordination. In many games, players need only swing and twist the Wii controller rather than have to master complicated combinations of buttons and triggers.
Dick Norwood, 61, a semi-retired businessman who lives in a community for residents 55 and older in Crest Hill, Ill., spotted the Wii in a mall in December. After playing Wii bowling with two other couples at home, he persuaded Giovan’s, a local Italian restaurant, to begin a “seniors only” Wii bowling league, where nine couples now show up every Thursday.
“When I started calling people about it, they had no idea what I was talking about, and they were laughing at me saying, ‘You want to start a bowling league on a video game in a bar?’ ” he said. “Well, we got there the first time, and we were there for six solid hours. In the past, I probably would have agreed that video games are just for kids. But I’ll tell you, at our age when you bowl for real, you wake up with aches and pains. Those balls aren’t light. But with this you’re getting good exercise, but you’re not aching the next day.”
There is no good evidence that video game playing can alter the course of dementia or cause lasting improvements in memory, but research is sparse. Most neuroscientists doubt that gaming can hurt, and some small studies are under way.
Jim Karle, a graduate student in the department of psychology, neuroscience and behavior at McMaster University in Hamilton, Ontario, reported last year that preliminary experiments indicated that playing video games could have a beneficial effect on short-term memory. Mr. Karle has not applied his research directly to older subjects, he said, but he may not have to. He has witnessed the increased popularity of gaming among older players first-hand.
“The baby boom generation is definitely playing more video games,” Mr. Karle, 29, said. “My mom never played video games, and then I would try to call her last year and could never get through. It wasn’t that the line was busy. She just wasn’t answering. It turned out it was because she had gotten engrossed with a game called Zuma. She’s 60 years old, and suddenly she was totally into it.”
Google, Online Ad Giant, Looks at Radio and TV
If there were any doubts about the scope of Google’s ambitions in the advertising world, one of its recent job postings should dispel them: It seeks a “head of national TV sales” to help build “a world-class national TV advertising sales team.”
Then there is radio. Google’s chief executive, Eric E. Schmidt, said last year that the company would eventually have 1,000 employees dedicated to radio advertising alone.
Google may one day rock the television and radio advertising markets. But its TV plans have yet to take shape, and its other efforts to extend its dominance over online advertising into offline media like newspapers and radio are inching along. The early results are mixed, suggesting that Google’s successful transition from online kingpin to credible player in traditional media is far from assured.
In particular, Google’s effort to sell radio ads, the oldest and most advanced of its major offline advertising plans, has run into several hurdles, including radio stations that are wary of losing control over the sale and pricing of ads.
The promise Google offers old-line media markets is that it can replicate the formula that has worked so well for it online. It is a formula that relies heavily on technology to allow advertisers to buy their own ads, have them appear on relevant pages across a vast network of Web sites, and then track the results.
The system has attracted a myriad of advertisers, many of them new to the Web. That, in turn, turned into a bonanza for Web publishers who had been unable to effectively convert traffic on their sites into dollars. Older media, with their entrenched infrastructures devoted to buying and selling ads, are not crying out for that kind of innovation — at least not from an outsider. But that will not stop Google from trying.
“If you use some of the things that we understand about finding appropriate value and targeting, we might get folks who haven’t advertised on radio before to advertise now,” said Douglas Merrill, vice president of engineering at Google. “New advertisers appear at the party. With those advertisers comes new money; with those, rates rise.”
Google has had trouble starting that cycle. It has been unable to sign up enough major stations in major markets to become broadly attractive to advertisers. Even in the markets where it has a presence, much of the air time that stations have made available to Google is what the industry calls “remnant” inventory — ad spots sold at the last minute at low prices.
Many in the radio industry are determined to keep Google at arm’s length, suspicious that its technology-based approach will turn their business into a commodity and take away the relationships with advertisers that stations have spent years building.
“It is a different model for selling radio advertising and it is controversial within the industry,” said David Benjamin, president of Triad Broadcasting, which owns about 40 stations in six markets. “There are those who believe that it could commoditize the product, leading to lower rates.”
Mr. Benjamin is not one of those people. He agreed to try Google’s system at a few stations, and he said that it had worked well so far. But he added that he was not ready to give Google his full endorsement.
“Am I a 100 percent believer?” he asked. “No. I just don’t know.”
Google’s recent foray into newspaper advertising has received a somewhat warmer reception. The company was able to recruit major newspapers like The Chicago Tribune and The New York Times, and most major newspaper chains.
The newspaper ads work much the same way that radio ads do, with advertisers bidding for available space. The tests, which began in November, are limited to about 100 advertisers.
Google said the volume of ads sold through the system was double what it had projected. Some newspaper industry executives say early results have been promising.
“From our perspective the tests went very well,” said Steve Rossi, executive vice president and chief operating officer of MediaNews, which is testing the Google ads in papers like The San Jose Mercury News and The Salt Lake Tribune.
Representatives for Gannett and The Chicago Tribune said the tests were encouraging but too small to be conclusive.
Success in offline advertising is important to Google’s future. Investors have bid up Google’s shares, in part, on the expectation that it will grab a portion of the market for radio, television and print ads. Google would benefit from even a foothold in those large markets, which still dwarf the $16 billion Internet advertising market.
Television advertising could prove particularly fruitful for Google, because the company might be able to combine its technology with that of cable systems to show different ads to different viewers based on demographics or personal interests. The company has said it is conducting a small trial with a few partners.
But television may not be revolutionized so easily. There are signs that Google’s reception in the TV world may prove to be as chilly as it has been in some corners of the radio industry.
For instance, Google has approached the cable giant Comcast about selling TV ads for it, according to a person briefed on the matter. The companies would not comment on any discussions. But D’Arcy Rudnay, vice president of corporate communications at Comcast, said: “We have a very successful company, Comcast Spotlight, which has thousands of employees who have been selling television advertising for many years.”
Google’s foray into radio got a jump start early last year when it paid as much as $1.24 billion for dMarc Broadcasting, whose technology helps marketers place ads on radio stations. Google has integrated the technology with its online advertising system.
Advertisers submit their ads to the system in digital form and specify what cities or regions and what kind of audience they want to reach. The system automatically schedules the ads based on the available inventory, or blocks of advertising time, and plays them on the air. Everything else, from confirming that the ads were played to billing and payments, is handled automatically, replacing older systems used in many stations.
“It has been a good experiment,” said Rick Cummings, president of Emmis Broadcasting, one of the largest radio networks that is currently testing the Google system.
But even Mr. Cummings said the system’s promise remained just that. “I think the jury is still out,” he said.
Emmis, which has about two dozen stations, is testing Google’s ads in a handful of markets, including Los Angeles and Chicago, Mr. Cummings said. Google has brought some new advertisers to those stations.
“They are getting it at cheap rates, because it is last-minute inventory,” Mr. Cummings said.
Indeed, winning guaranteed access to prime-time spots in top stations in large markets may be Google’s biggest challenge, according to industry analysts. Most of those spots are controlled by major networks like CBS and Clear Channel. And even at smaller stations, premium inventory is expensive.
“This is about getting access to prime-time inventory,” said David Bank, a media analyst with RBC Capital Markets. “That is going to be achieved in a handful of major deals. We haven’t seen those major deals yet.”
Google and CBS were in talks late last year, according to news media and analyst reports, but no deal has been announced. CBS declined to comment, and Google would not comment on specific deals.
Google has been upbeat about the program, saying it has signed up about 900 stations in some 200 markets. “As we have more advertisers, we’ll be able to work with more publishers,” said Susan Wojcicki, vice president of product management at Google. “And as we get more publishers, we’ll be able to work with more advertisers. It is a process that will take time.”
Some advertisers are pleased. “We’ve tested them with about three of our clients,” said Mark Hodor, vice president of direct response at Carat Fusion, an advertising agency that is part of the Aegis Group. “It has been pretty successful for all of them.”
But a recent list of participating stations, which was obtained by The New York Times, shows that Google’s access to major markets is spotty.
For instance, the list included 10 stations in the San Francisco Bay Area, but most were in outlying areas like Sonoma and Santa Rosa and have low ratings. None of the stations were in San Francisco, and Google’s top station in the area is ranked 18th in terms of audience share, according to Arbitron. Its top station in New York is ranked 27th. Google may have added more stations since the list was created last month.
Competitors are moving quickly to grab a share of the market. Bid4Spots, which sells remnant inventory through an automated system, says it has 2,400 stations in its network. Another Google rival, SWMX, said its network reached 40 percent of the American broadcast audience. The company recently began testing TV ads.
One of SWMX’s advantages is that it is not Google, Mr. Bank said. “That’s a huge selling point in the industry. On the other hand, they don’t have the credibility of the Google brand.”
Mr. Cummings, of Emmis, and Mr. Benjamin, of Triad, both said that Google had talked to them about buying higher-quality inventory, but nothing had come of those talks yet.
“It’s tiny,” Mr. Cummings said about the revenue generated through Google. But he said he was hopeful that over time Google would bring new advertisers to prime-time radio. “If we thought this was going to be remnant inventory forever, I would stop that tomorrow,” he said.
Google has been building its own radio sales force, hiring away veteran sales representatives from stations. That has heightened fears in the industry that Google could take control over relationships with advertisers from them.
Ms. Wojcicki said Google had proved in the online world that it could work with Web publishers without undermining the relationships between publishers, advertisers and ad agencies. But the concerns persist.
Google “would not say that they are replacing the buyer-seller relationship,” said Jeff Lanctot, vice president and general manager at Avenue A/Razorfish, an interactive marketing agency. “But it is what they are doing. For a radio salesperson, it is a fox-in-the-henhouse scenario.”
Voting Device Pact at Issue
Firm sues over snub by state
Sean P. Murphy
Diebold Election Systems Inc., one of the country's largest manufacturers of voting machines, is scheduled to argue in court today that the Office of the Secretary of State wrongly picked another company to supply thousands of voting machines for the disabled.
Diebold says it will ask a judge to overturn the selection of AutoMARK , a Diebold business competitor, because the office of Secretary of State William F. Galvin failed to choose the best machine.
The contract is valued at about $9 million.
William M. Weisberg , a lawyer representing Diebold, said in an interview yesterday that the company wants a review of the internal records showing how Galvin's office came to select AutoMARK earlier this year.
"We compete against AutoMARK around the country all the time," Weisberg said. "Based on the criteria set out by the Commonwealth, we had a fair degree of confidence we'd come out on top, and nothing we heard during the process dissuaded us of that confidence."
Weisberg said Diehold was so stunned it did not get the contract that it now believes "it's worth the time and money" of going to court to challenge the contract's award, even though the company at this stage has no hard evidence of unfair treatment.
Galvin yesterday called the Diebold suit "frivolous" and unlikely to succeed. "My office made a very reasonable selection after a long, open process of evaluating the voting machines," Galvin said.
"We are entirely confident we will prevail," he said.
In court filings, Diebold has indicated it will ask a judge today to immediately halt further use or distribution of the AutoMARK machines to municipalities throughout the state. If a judge issues that order, Diehold will then present arguments over the coming weeks on why the process was flawed, Weisberg said.
"We want a judge to either order the contract awarded to Diebold, based on his review of the proposals, but if he does not want to go that far, to at least order a reopening of the competition," he said.
Weisberg said the company is not alleging any improprieties by the secretary of state's office. Instead, it is saying the office acted in good faith but made a mistake in the selection.
The state's purchase of about 3,500 voting machines for use by disabled voters arises out of the Help America Vote Act, passed by Congress in 2002. It mandates that states provide the machines for those disabled by the loss of a limb or the loss of vision, among other disabilities.
Galvin said AutoMARK machines have already been shipped to some of the state's 1,700 polling places for use in spring municipal elections.
The machines were used in a special election in Worcester last week and are scheduled to be used today for a town vote in Sudbury.
"I want to get the machines in use quickly in the municipal elections before larger statewide elections," Galvin said. "I see this suit as interfering in that."
The state invited bids from numerous manufacturers before narrowing the field to 14 companies, and then to three, Galvin said. While price was a key consideration, other criteria were considered, such as the quality of machine, security, and service.
Galvin said his office surveyed disabled groups and municipal election officials during the evaluation process after letting those groups test the competing machines.
He said there was a consensus in favor of the AutoMARK.
Galvin cited as an important factor in favor of AutoMARK its machine's use of one kind of paper ballot for disabled voters and others.
He said that gave extra privacy to disabled voters.
"If you happened to have only one disabled voter in a precinct, that person's ballot is easily identifiable," he said.
The challenge will be heard in the business litigation session of Suffolk Superior Court in Boston.
Wikipedia Rival Makes its Debut
A new rival to Wikipedia launched its public beta Sunday.
Citizendium, a self-proclaimed "citizens' compendium" of general knowledge, works much like Wikipedia in that anyone can submit information. This community encyclopedia, however, requires users to register with their real names, and its articles are governed by an editorial board.
The wiki encyclopedia was started by Larry Sanger, a co-founder of Wikipedia, according to his own biography.
Citizendium seeks to improve on the wiki model by offering encyclopedic content with "gentle expert oversight," according to its main page.
The content, which has 1,100 articles as of this publication, includes imported Wikipedia articles that Citizendium volunteers and editors are in the process of "cleaning up" and outfitting with templates that track an article's status.
Sanger, who started private testing of Citizendium in November 2006, claims to now have gotten approximately 820 authors and 186 editors on board with the project. Authors can start or edit articles. Editors decide which version of an article is approved and which requires an academic background in a particular area of expertise.
Anyone who registers with their full name is free to contribute. But those contributions will be monitored by constables. A "CZ Constable" is a volunteer who is required to have a bachelor's degree and be "at least 25 years old." These constables (Sanger is one of them) will have the authority to ban inappropriate contributors.
Articles that have been vetted by Citizendium editors and constables are marked as "CZ Live."
This gives Citizendium control over what's posted and avoids some of the problems that have plagued Wikipedia.
Because of its free-form nature, Wikipedia has experienced some problems with defamation and vandalism, in addition to factually incorrect entries. Wikipedia banned comedian Stephen Colbert from its site after he encouraged fans to make funny edits to entries in order to illustrate the vulnerability of an open wiki encyclopedia.
How to Save Newspapers
Tim O'Reilly: I'm hearing rumors that the San Francisco Chronicle is in big trouble. Apparently, Phil Bronstein, the editor-in-chief, told staff in a recent "emergency meeting" that the news business "is broken, and no one knows how to fix it." ("And if any other paper says they do, they're lying.") Tim's bottom lines:
We talk about creative destruction, and celebrate the rise of blogging as citizen journalism and Craigslist as self-service advertising, but there are times when something that seemed great in theory arrives in reality, and you understand the downsides. I have faith both in the future and in free markets as a way to get there, but sometimes the road is hard. If your local newspaper were to go out of business, would you miss it? What kinds of jobs that current newspapers do would go undone?
Dave Winer answers:
First, reform journalism school. It's too late to be training new journalists in the classic mode. Instead, journalism should become a required course, one or two semesters for every graduate. Why? Because journalism like everything else that used to be centralized is in the process of being distributed. In the future, every educated person will be a journalist, as today we are all travel agents and stock brokers. The reporters have been acting as middlemen, connecting sources with readers, who in many cases are sources themselves. As with all middlemen, something is lost in translation, an inefficiency is added. So what we're doing now, in journalism, as with all other intermediated professions, is decentralizing. So it pays to make an investment now and teach the educated people of the future the basic principles of journalism.
Second, embrace the best bloggers. How? Easy -- every time someone is quoted in your publication, offer them a blog hosted on your domain. This has a couple of advantages: 1. It gives the reporters the ultimate say on who gets to share some of your authority, who gets a chance to be the next amateur star. 2. It gives the reporters an incentive to only use sources that are qualified, it would improve the quality of your reporting. It also has a third benefit, as you expand the number of people writing under your banner, you also expand the reach of your publication, into school boards, local government, sports teams and businesses. It's also important because it's how you decentralize, aligning your interests with the "grain" of the web, as opposed to the current positioning, against it.
Great suggestions. These enlarge on some of the points I made a few months back (specifically, #s 5 and 6 below), all which I'll repeat here, with a few very minor edits (to add linkage and make a couple of points current):
1) Stop giving away the news and charging for the olds. Okay, give away the news, if you have to, on your website. There's advertising money there. But please, open up the archives. Stop putting tomorrow's fishwrap behind paywalls. (Dean Landsman was the first to call this a "fishwrap fee".) Writers hate it. Readers hate it. Worst of all, Google and Yahoo and Technorati and Icerocket and all your other search engines ignore it. Today we see the networked world through search engines. Hiding your archives behind a paywall makes your part of the world completely invisilble. If you open the archives, and make them crawlable by search engine spiders, your authority in your commmunity will increase immeasurably. (This point is proven by Santa Barbara vs. Fort Myers, both with papers called News-Press, one with contents behind a paywall and the other wide open.) Plus, you'll open all that inventory to advertising possibilities. And I'll betcha you'll make more money with advertising than you ever made selling stale editorial to readers who hate paying for it. (And please, let's not talk about Times Select. Your paper's not the NY Times, and the jury is waaay out on that thing.)
2) Start featuring archived stuff on the paper's website. Link back to as many of your archives as you can. Get writers in the habit of sourcing and linking to archival editorial. This will provide paths for search engine spiders to follow back in those archives as well. Result: more readers, more authority, more respect, higher PageRank and higher-level results in searches. In fact, it would be a good idea to have one page on the paper's website that has links (or links to links, in an outline) back to every archived item.
3) Link outside the paper. Encourage reporters and editors to write linky text. This will encourage reciprocity on the part of readers and writers who appreciate the social gesture that a link also performs. Over time this will bring back enormous benefits through increased visits, higher respect, more authority and the rest of it.
4) Start following, and linking to, local bloggers and even competing papers (such as the local arts weeklies). You're not the only game in town anymore, and haven't been for some time. Instead you're the biggest fish in your pond's ecosystem. Learn to get along and support each other, and everybody will benefit.
5) Start looking toward the best of those bloggers as potential stringers. Or at least as partners in shared job of informing the community about What's Going On and What Matters Around Here. The blogosphere is thick with obsessives who write (often with more authority than anybody inside the paper) on topics like water quality, politics, road improvement, historical preservation, performing artisty and a zillion other topics. These people, these writers, are potentially huge resources for you. They are not competitors. The whole "bloggers vs. journalism" thing is a red herring, and a rotten one at that. There's a symbiosis that needs to happen, and it's barely beginning. Get in front of it, and everybody will benefit.
6) Start looking to citizen journalists (CJs) for coverage of hot breaking local news topics -- such as hurricanes, tornadoes, floods, wildfires and so on. There are plenty of people with digital cameras, camcorders, cell phones and other devices that can prove mighty handy for following stories up close and personally. Great example: what Sig Solares and his crew did during Katrina.
7) Stop calling everything "content". It's a bullshit word that the dot-commers started using back in the '90s as a wrapper for everything that could be digitized and put online. It's handy, but it masks and insults the true natures* of writing, journalism, photography, and the rest of what we still, blessedly (if adjectivally) call "editorial". Your job is journalism, not container cargo.
8) Uncomplicate your webistes. I can't find a single newspaper that doesn't have a slow-loading, hard-to-navigate, crapped-up home page. These things are aversive, confusing and often useless beyond endurance. Simplify the damn things. Quit trying to "drive traffic" into a maze where every link leads to another route through of the same mess. You have readers trying to learn something, not cars looking for places to park. And please, get rid of those lame registration systems. Quit trying to wring dollars out of every click. I guarantee you'll sell more advertising to more advertisers reaching more readers if you take down the barricades and (again) link outward more. And you'll save all kinds of time and hassle.
9) Get hip to the Live Web. That's the one with verbs such as write, read, update, post, author, subscribe, syndicate, feed and link. This is the part of the Web that's growing on top of the old Static Web of nouns such as site, address, location, traffic, architecure and construction. Nothing wrong with any of those static nouns (or their verb forms). They're the foundation, the bedrock. They are necessary but insufficient for what's needed on the Live Web, which is where your paper needs to live and grow and become more valuable to its communities (as well as Wall Street).
Lemme unpack that a bit. The Static Web is what holds still long enough for Google and Yahoo to send out spiders to the entire universe and index what they find. The Live Web is is what's happening right now. It's dynamic. (Thank you, Virginia.) It includes all the stuff that's syndicated through RSS and searched by Google Blogsearch, IceRocket and Technorati. What I post here, and what others post about this post, will be found and indexed by Live Web search engines in a matter of minutes. For those who subscribe to feeds of this blog, and of other blogs, the notification is truly live. Your daily paper has pages, not sites. The difference is not "just semantic". It's fundamental. It's how you reclaim, and assert, your souls in the connected world. It's also how you shed dead conceptual weight, get light and nimble, and show Wall Street how you're not just ahead of the curve, but laying pavement beyond everybody else's horizon. It's how your leverage the advantages of history, of incumbency, and of already being in a going business. (The hard part will be raising your paper's heartbeat from once a day to once a second. But you can do it. Your own heart sets a good example.)
10) publish Rivers of News for readers who use Blackberries or Treos or Nokia 770s, or other handheld Web browsers. Your current home page, and all your editorial pages, are torture to read with those things. See the example Dave Winer provides with a from the NY Times. See what David Sifry did for the Day Fire here in California. Don't try to monetize it right away. Trust me, you'll make a lot more money — and get a lot more respect from Wall Street — because you've got news rivers, than you'll make with those rivers.
* One more...
11) Remember the higher purpose behind the most informative writing — and therefore behind newspapers as well. To review,
I don't think of my what I do here as production of "information" that others "consume". Nor do I think of it as "one-to-many" or "many-to-many". I thnk of it as writing that will hopefully inform readers.
Informing is not the same as "delivering information". Inform is derived from the verb to form. When you inform me, you form me. You enlarge that which makes me most human: what I know. I am, to some degree, authored by you.
What we call "authority" is the right we give others to author us, to enlarge us.
The human need to increase what we know, and to help each other do the same, is what the Net at its best is all about. Yeah, it's about other things. But it needs to be respected as an accessory to our humanity. And terms like "social media", forgive me, don't do that. (At least not for me.)
Credit where due... That line, We are all authors of each other, first came up many years ago during a conversation between Tim O'Reilly and myself.
Tim's right that newspapers have a hard road. But there are a lot of good people out there who want newspapers to adapt and thrive in a Giant Zero world. More, I'm sure, than ever before.
They can only do it together.
Got a pillow on your back?
You Can Get Hooked on 'Soft Addictions'
"Soft addictions" to things like video games or mail order catalogs, or coffee, may not be deadly like hard addictions to chemical substances, but can cause disruptions in life.
When Rich and Gertrude Lyons first admitted they were powerless, television was the first thing to go. Then they weaned themselves from mail-order catalogs, electronic gadgets and sugar.
Today, the Chicago couple is still grappling with their "soft addictions," or ordinary behavior that, if overdone, can wreak havoc on your life. Unlike hard addictions, which are usually related to a chemical substance, you don't die from soft addictions.
"But you don't really live, either," said self-help guru Judith Wright, who labeled the phenomenon more than a decade ago.
People have always had ways to zone out, but experts such as Wright say soft or mild behavioral addictions are escalating, partly because there are so many new things to get addicted to, and many have the disposable income to do it. But identifying and treating a soft addiction are difficult. Because whether it's watching the NCAA tournament, checking e-mail, editing Wikipedia entries or walking into Starbucks, the activities are seemingly harmless behaviors. The problem is that when even healthy habits such as exercise are used too often or for the wrong reasons, they sap our time, money and energy and prevent us from living the life we want, according to Wright, founder of the Chicago-based Wright Institute, a personal development and training center and author of "The Soft Addiction Solution" (Jeremy P. Taracher/Penguin, $16.95).
Rich Lyons, 41, for example, habitually zoned out in front of the television at night, staying up far later than intended and waking up crabby the next day. That resulted in another soft addiction, he said, to a grumpy mood. His wife, Gertrude, 41, meanwhile, found she had a soft addiction to shopping for adorable but overpriced baby clothes that, ultimately, her children didn't want to wear. She also had a bad habit of paging through mail-order catalogs when she had better things to do.
"It wasn't an overspending issue as much as it was buying stuff you knew you didn't need," Gertrude said. "It was like buying something felt like it would make me feel better."
The affliction strikes men and women of all ages and races. A poll conducted for the Wright Institute, found that 91 percent of us have a soft addiction that keeps us from feeling satisfied. "And the other 9 percent of people are in denial," Wright said.
Procrastination, watching too much television and overworking are the top three. But a new study shows college undergraduates might be addicted to tanning under UV lights. The Internet, meanwhile, is being blamed for a host of compulsive behaviors.
In one recent high profile case, James Pacenza of New York, who was fired for visiting an adult chat room at work, is suing IBM for wrongful termination. Pacenza claims he has an addiction, a disorder that deserves treatment and sympathy rather than dismissal.
Technology can cause addictive behavior "partly because each potential response required for a cell phone message or an e-mail doesn't always seem so large, so why not mow some of them down now?" said Jeff Davidson, author of "Breathing Space: Living & Working at a Comfortable Pace in a Sped-Up Society" (BookSurge, $14.95). "The megalomaniac payoff of believing we can stay on top of it all can, intermittently, feel quite satisfying."
Though there is still controversy over whether compulsive Internet use and video-game playing merit a medical diagnosis, treatment centers have opened up around the world, including Korea, China and the Netherlands. The Priory Clinic in London is treating "texting addicts," or those who might spend up to seven hours a day writing and receiving text messages on their cell phones.
One of eight Americans exhibited at least one possible sign of problematic Internet use, a Stanford study showed. Psychological symptoms include an inability to stop using it, craving more time online, neglect of family and friends and feeling depressed and irritable when not at the computer. Physical signs can be carpal tunnel syndrome, sleep deprivation, backaches, eye strain and increased agitation.
"Job loss, financial loss and marital loss can all be associated with the disorder," said Kimberly Young, founder of the Center for Internet Addiction Recovery, who has seen everything from young children who withdrew from life for online gaming to couples who divorced because of online affairs.
But others say spending large amounts of time behind the computer doesn't necessarily constitute an addiction. "It's more of a process of control and losing control," said psychologist Chris Stout, an executive director at the Timberline Knolls, a Chicago-based women's residential treatment center. "It's easy to confuse an addiction with a compulsive behavior. An addiction involves deception, denial and dishonesty. A compulsive behavior is more apparent such as repetitive behaviors and is a way to cope with anxiety."
Unlike a bad habit, a soft addiction also has an identifiable cost of money, time, energy or intimacy associated with it, according to Wright. Feeling numb, high, buzzed or in a trance when you're doing an activity could mean you have a problem.
"If you can't remember what you did, ate, saw or bought, that's a sign," she said. "But if you're doing the activity and feel more alive and vital, and you're learning, growing, clear, grounded and present, that's a passion. We shouldn't confuse the two."
The first step to beating a soft addiction requires making a commitment to higher quality of life, said Wright, whose next "One Decision" weekend seminar begins April 13. Then you have to recognize the deeper need or hunger under the soft addiction. "Make the distinction between what you want and what you hunger for," Wright said. "You might want a new designer dress, but you're really hungry to feel good about yourself."
Finally, use what Wright calls the "Math of More." Instead of depriving yourself, add things to your life to crowd out the behavior you want to change.
Rob Johnson, 45, of Oak Park, Ill., found he was became too emotionally invested when he watched televised sporting events. But rather than cut sports out of his life altogether, he added more time with his wife and three sons and began coaching youth hockey teams, something he finds much more rewarding. Suddenly, he didn't have time to watch 15 hours of televised hockey a week.
"It took making a deeper inquiry into why I was watching so much," he said.
Rich Lyons, president of Lyons Consulting Group, realized that his trouble with electronic gadgets stemmed from his need to feel connected. But when he was lost in the world of technology, he didn't have any contact with his family.
The electronic connection, he realized, "is not nearly as nourishing as connecting with my wife and kids," he said. "If I can understand the underlying need, the computer won't do it. I need connection with human beings."
The bad news is that soft addictions never really go away. At one point, The Lyons family had ousted sugar, but it has crept back into their lives. Even 10-year-old Morgan Lyons is working with her parents to eliminate the addictive substance.
"You get rid of one and a new one creeps in," Gertrude Lyons sighed. "The best you can do is lessen them and put in systems to help cope."
Top 10 soft addictions
• Watching too much television.
• Acting moody, such as being grumpy, cranky or overly happy.
• Drinking too much coffee.
• Shopping impulsively.
• Daydreaming excessively.
• Complaining excessively.
• Surfing the Internet excessively.
Source: Harris Poll conducted for the Wright Institute.
How to tell if you're addicted
If you fear you Google yourself too often or can't stop checking your e-mail, here are some questions to determine your level of Internet addiction, according to cyber-psychologist Kimberly Young, director of the Center for Online Addiction and author of "Caught in the Net" (John Wiley & Sons, $34.95), which addresses Internet addiction. Young likens excessive Internet use to pathological gambling.
Rate your responses to the following questions on a 5-point scale, ranging from 1 point for "rarely" to 5 points for "always." The higher the score -- more than 25 points is cause for concern -- the greater the problem your Internet use causes. For the full 20-question quiz and scoring details, go to www.netaddiction.com.
How often do you:
1. Stay online longer than you intended?
A. rarely B. occasionally C. frequently D. often E. always
2. Neglect household chores to spend more time online?
A B C D E
3. Prefer the excitement of the Internet to intimacy with your partner?
A B C D E
4. Form new relationships with fellow online users?
A B C D E
5. Check your e-mail before something else that you need to do?
A B C D E
6. See your grades or schoolwork suffer because of the amount of time you spend online?
A B C D E
7. Hear others in your life complain about the amount of time you spend online?
A B C D E
8. Let your job performance or productivity suffer because of the Internet?
A B C D E
9. Become defensive or secretive when anyone asks you what you do online?
A B C D E
10. Lose sleep due to late-night log-ins?
A B C D E
Lawmakers May Ban Texting While Driving
New Jersey drivers who insist on sending text messages on their cell phones or personal digital assistants may find themselves on the wrong side of the law if legislators approve a new bill.
The plan is in response to a recent Nationwide Insurance survey finding that one in five drivers are texting while driving, a figure that rises to about one in three among people aged 18 to 34, said Democratic Assemblyman Paul Moriarty.
"It's extremely dangerous," said Moriarty, one of three sponsors of the bill. "It requires you to completely take your eyes off the road. I see people driving down the street using both their thumbs to send a text message, and I can only imagine they are steering with their knees."
Drivers caught texting would be fined between $100 and $250. Similar measures are being considered by three other states, Moriarty said.
The measure would allow police to pull over any driver found texting while driving, a tougher approach than currently allowed under the state's ban on drivers using a mobile phone on the highway. Under that law police are only allowed to stop drivers if they are also committing another offense.
Critics have asked why the bill does not also seek to outlaw other sources of driver-distraction such as coffee or food, but Moriarty said such a bill would never pass the state legislature.
The bill, introduced last week, has 20 co-sponsors -- both Democrats and Republicans. It is expected to be debated in a committee during May or June and then pass to the full Assembly and the Senate whose leaders have indicated they are in favor, the assemblyman said.
Apple Should Pull the Plug on the iPhone
John C. Dvorak
The hype over the unreleased iPhone has actually increased over the past month despite the fact that nobody has seen or used the device. This, if nothing else, proves the power of branding and especially the power of brand loyalty.
It's the loyalists who keep promoting this device as if it is going to be anything other than another phone in a crowded market. And it's exactly the crowded-market aspect of this that analysts seem to be ignoring.
Apple Inc.'s past successes have been in markets that were emerging or moribund.
Its biggest hit has been the iPod. But let's examine what happened here.
First the MP3 player business was segmented and unfocused with numerous players making a lot of cheap junk and not doing much to market any of it.
Apple does what? Advertise. Gosh, what a concept.
Then there was the online music distribution business, again unfocused and out-of-control with little marketing and a lot of incompatible technologies. So Apple comes in with a reasonable solution, links it to the heavily promoted iPod and bingo. A winner.
It advertises on TV, on billboards and on the Internet. Within no time the company takes over the business that would probably still be languishing without Apple.
Thus Apple does what it does best. It produces a jazzy product and promotes it like any good business should do. And in the process manages to get a high margin.
This is nothing more than the fundamentals.
Now compare that effort and overlay the mobile handset business. This is not an emerging business. In fact it's gone so far that it's in the process of consolidation with probably two players dominating everything, Nokia Corp. and Motorola Inc.
During this phase of a market margins are incredibly thin so that the small fry cannot compete without losing a lot of money.
As for advertising and expensive marketing this is nothing like Apple has ever stepped into. It's a buzz saw waiting to chop up newbies
The problem here is that while Apple can play the fashion game as well as any company, there is no evidence that it can play it fast enough. These phones go in and out of style so fast that unless Apple has half a dozen variants in the pipeline, its phone, even if immediately successful, will be passé within 3 months.
There is no likelihood that Apple can be successful in a business this competitive. Even in the business where it is a clear pioneer, the personal computer, it had to compete with Microsoft and can only sustain a 5% market share.
And its survival in the computer business relies on good margins. Those margins cannot exist in the mobile handset business for more than 15 minutes.
And note that the Microsoft Corp. versus Apple battles are laughable compared to the frenzied marketing mania in the handset business. Even Microsoft itself has troubles with its attempts to get into a small sub segment of the handset business with its operating system.
What Apple risks here is its reputation as a hot company that can do no wrong. If it's smart it will call the iPhone a "reference design" and pass it to some suckers to build with someone else's marketing budget. Then it can wash its hands of any marketplace failures.
It should do that immediately before it's too late. Samsung Electronics Ltd. might be a candidate. Otherwise I'd advise you to cover your eyes. You're not going to like what you'll see.
Hot Spectrum Draws Cash, and Ideals
It is referred to as the last beachfront property in the wireless world — a prized swath of spectrum that is about to be sold at federal auction. And it has touched off an intense lobbying effort pitting cellular companies against a variety of new players interested in the potential of a next-generation mobile Internet.
The Federal Communications Commission will set the rules for the auction, possibly as soon as next month. Depending on that ruling, the spectrum could be used for voice services for cellular carriers, new frequencies for emergency responders, or a commercial high-speed broadband multimedia network.
Among those trying to influence the outcome are three of the nation’s four largest cellular providers, rural and regional wireless carriers, cable and satellite television companies and a range of technology companies — including Google and Yahoo.
Along with other wireless technology proposals, the auction could reshape the debate over who controls access to the networks that deliver digital content to consumers. Opening the door to more network competition nationally could have a tremendous economic impact.
“This offers the potential for a real game changer in broadband spectrum,” said John M. R. Kneuer, assistant secretary for communications and information at the National Telecommunications and Information Administration, an arm of the Commerce Department. “It can both generate new innovation and lower prices.”
The airwaves in question are in the 700-megahertz band, a segment used until now for UHF television but freed up by the move to digital broadcasting. Unless Congress reverses itself, those frequencies are scheduled to be reclaimed by the government and reallocated for public safety and commercial broadband networks on Feb. 19, 2009.
Mr. Kneuer points out that because the new band is at a lower frequency than today’s cellular and digital wireless services, it has a far greater range as well as the ability to penetrate the walls of homes and office buildings more effectively.
That could enable a new entrant to build out a broadband service dedicated to mobile devices — a sector considered to have greater growth potential than conventional voice services. This could be done quickly and relatively inexpensively with just a few transmission towers and then filled in with additional capacity as new customers join the network.
“This is the realization of a truly national wireless Internet,” said Reed E. Hundt, a former F.C.C. chairman.
Last month Mr. Hundt launched a Washington-based organization called Frontline Wireless and filed a proposal with the F.C.C. to create an “open access” network intended to support both public safety services and the creation of a system to offer wholesale broadband network service.
Unlike the current practice of American cellular companies, which lock customers’ handsets to a particular carrier, Mr. Hundt’s network envisions a system that would let a consumer connect a device like an Apple iPhone or a Palm hand-held device upon purchasing the device at a store like Best Buy.
Mr. Hundt said Frontline had begun building an investor group to take part in the auction, which could begin as early as this summer. Significantly, the company’s first identified investor is K. Ram Shriram, an early Google investor and current board member, and managing partner of Sherpalo Ventures.
Earlier this month Google also helped create a lobbying group called Alliance for 4-G America, with partners including Yahoo, EchoStar Communications, DirecTV, Intel and Skype, in an effort to influence the F.C.C.’s rule-making for the auction.
Several industry executives and analysts said it was unlikely that Google or Yahoo would directly take part in bidding for the new wireless spectrum, for fear of antagonizing communications companies by competing directly with them. But both companies are intensely interested in persuading the F.C.C. not to give advantages to the wireless incumbents in the bidding process.
Google, Yahoo and other Internet companies are worried about the ability of large cable and telephone companies to restrict certain types of Internet traffic, or to give priority service to some content providers over others, possibly for a fee. Companies like AT&T and Verizon have responded that such measures might be necessary to protect their investments in broadband networks.
Industry executives have said that Verizon Wireless or other cellular companies might be willing to spend billions of dollars for the spectrum simply to block competitors, or possibly for voice applications intended to help the national cellular companies compete more effectively against smaller regional and local cellular firms.
Several analysts cautioned that upstart bidders might be hard pressed to compete against the incumbents, which have vast cash reserves.
“Silicon Valley bidders have deep pockets, but it would be very outside-the-box and high-risk for them,” said Kevin M. Roe, a telecommunications analyst at Roe Equity Research in New York. “Not only do you need the money to buy the spectrum, but you have to build a network — and that would be a gargantuan task that would take years with no guarantees they could catch up with the big four national operators.”
A Verizon spokesman said the company was interested in the potential offered by the 700-megahertz frequencies but had not yet committed to enter any auction for the spectrum. The company executive also noted that it was still possible that legislation might emerge from Congress that would again delay the digital television and set back an auction date.
But because the auction could generate as much as $10 billion to $30 billion for the United States Treasury, some policy analysts said they were concerned that the auction process might trump the broader impact that new wireless services or technologies might have on the economy.
“This spectrum could catalyze tremendous innovation,” said Kevin Werbach, assistant professor of legal studies at the Wharton School, University of Pennsylvania. “However, if the auction process is focused on raising the most amount of money for the government, it might prove counterproductive for the larger economic interests of the country.”
That may be particularly true for a related proposal recently put forward by a separate coalition also including Google, as well as Microsoft, Intel, Dell, Hewlett-Packard, and Royal Philips Electronics. Earlier this month, the group gave a prototype device to the F.C.C. that they said would be used to build a next-generation wireless network that would have greater range and better performance than the current generation of technology known as Wi-Fi.
The new service would fall within existing television bands, but would use smart radio techniques to avoid interfering with local television channels.
“We think this has the economic potential of the Wi-Fi industry or even more,” said Scott Blake Harris, a Washington lawyer who represents the group.
The regulatory situation is clouded by competing proposals for the use of the 700-megahertz band as well as a range of other frequencies. For example, Morgan O’Brien, a founder of Nextel, last year formed Cyren Call Communications, which petitioned the F.C.C. for an alternative use for that band for public safety services. While that proposal was rejected by the commission, Cyren Call is still trying to win Congressional support for the idea.
Separately, last May, Silicon Valley-based M2Z Networks petitioned the F.C.C. for spectrum to build a freely available nationwide broadband network at the higher frequency of 2.155 gigahertz.
Intel Modifies Wi-Fi to Add Mileage
Intel has come up with a form of Wi-Fi that would let a laptop in San Francisco connect to the Internet from a base station in San Jose, Calif.
And there would still be about 10 miles of wiggle room to spare.
Academics and researchers from the company's labs have created a system that lets Wi-Fi signals, which ordinarily carry a few hundred feet, instead travel 100 kilometers, or more than 60 miles, said Eric Brewer, director of Intel Research Berkeley, a lab owned by the company that cooperates on research projects with the University of California at Berkeley.
"It is regular Wi-Fi hardware but with modified software," he said.
To show it works, Intel has set up a link between its labs in the downtown section of this Bay Area city and the university's Space Science Lab, about 1,200 feet up and about 1.5 miles away on Grizzly Peak Boulevard. The receiver in the office consists of a directional antenna linked to a modified--but otherwise standard--wireless access point.
The system isn't designed for the U.S. or Europe. Instead, it is part of the chip giant's efforts to bring computing technologies to people in emerging markets. The communications infrastructure in most of these countries is fairly anemic and most of it is concentrated in cities. Villages, where a large portion of the population lives, are effectively cut off from the outside world except by car, bus or footpath.
These Wi-Fi antennas, say Brewer and others, could serve as important links in a chain. Villagers would connect to a Wi-Fi antenna in their town or region, which would then relay the signals through several other towers until it came to a fiber link that connected the villager to the Internet.
In a sense, these long-range Wi-Fi antennas would perform the same function as WiMax, a long-range wireless technology that many, including Intel, are experimenting with now. The difference is that a WiMax tower costs about $15,000 to $20,000. The long range Wi-Fi towers might only cost $700 to $800.
Additionally, long range Wi-Fi could spread faster, Brewer said. The radio spectrum employed by WiMax is regulated by local telecommunications authorities. Putting up towers or offering services can require getting governmental permission.
Wi-Fi operates in the unlicensed portion of the spectrum. Thus, villages could join a network incrementally. Some networks could also leverage both WiMax and Wi-Fi: Pakistan, among other emerging nations, is investing heavily in WiMax.
Intel is considering conducting a trial of this technology, or components of it, in Uganda later this year.
How it works
One of the big differences between standard Wi-Fi and Intel's long-range version lies in the fact that the long-range signals are directional: they are tuned to travel from one antenna to another one and nowhere else. A standard Wi-Fi antenna broadcasts its signal in a 360-degree circle.
Creating a direct signal isn't easy. The antennas need to be precisely aligned with one another, and physical objects that get between the two can interfere with the signal.
"It is hard to align them," said Alan Mainwaring, a scientist at Intel Research Berkeley. "The first thing that happens is that kids play on the tower."
To that end, the company has developed a "steerable" antenna. The physical antennas themselves aren't steered--instead, the signal between the towers is guided by an electrical signal. Electrical steering also has the advantage in that the physical antennas can also move out of alignment, or even be put into the ground slightly off-kilter, without destroying signal integrity.
The lab has made one system out of "L" brackets and wood, among other components, and will come out with a second generation of antennas in the relatively near future. (Some of the technology for the steerable antenna comes from professor Alexey Umnov of Nizhny Novgorod State University in Russia. Intel has research facilities in that city, too.)
Additionally, a lot of the protocols and procedures in ordinary Wi-Fi communication are eliminated. Handshaking, which allows a PC and a wireless router to link up in an ordinary Wi-Fi network, and collision detection are eliminated.
Wi-Fi Buses Drive Rural Web Use
Buses equipped with wi-fi are being used to deliver web content to remote rural villages in the developing world.
In rural India and parts of Rwanda, Cambodia and Paraguay, the vehicles offer web content to computers with no internet connection.
The buses and a fleet of motorcycles update their pages in cities before visiting the hard-to-reach communities. As well as offering popular pages, the United Villages project also allows users to request specific information.
A small box, with an antenna, onboard the buses and motorcycles communicates with the rural computers.
In many parts of the developing world it is too expensive to lay the fibres and copper cable to deliver a standard internet connection. Wireless technologies also do not reach many remote places.
The founder of the United Villages initiative Amir Hassan said the company had been set up to give those people in these areas a slice of the web for a fee.
"There's only 0.003% percent of the web that rural India cares about," he told BBC News.
"They want to know the cricket scores, they want to see the new Aishwarya Rai photos, and they want to hear a sample of the latest Bollywood tunes."
The village computer was often in the local store, he added.
Every time the wi-fi bus rolled by the village - up to six times a day - the pages were updated, he said.
As well as this regular content users can make special requests for a few additional rupees.
For example, if there was no information about Britney Spears on the village computer, a fee could be paid to get hold of such information.
The bus would then go back to the city and communicate with an internet server.
The box on the bus would be updated with the requested information and, a few hours later, the bus would arrive back at the village to zap the Britney Spears pages to the computer.
The wi-fi vehicles also deliver and collect e-mails from the villagers.
The system also made it easier for villagers to buy essential products such as fertilisers, pesticides, books and medicines, Mr Hassan added.
"We're bringing e-commerce to rural India."
"What we've done is created a catalogue of those products that they can order at the kiosk and get them delivered the next day via the bus," he said.
Because many people in rural communities cannot read, and because the majority of the web is in English, villagers often rely on the person who operates the local computer to help them.
Raj Kishor Swain, who runs the computer in the village of Satasankha, said he is now a popular man.
"Right now, more and more people are asking me about what can be done on the PC and internet," he said.
"My objective is to show to the village youth that having a PC with connectivity is a viable business so that more and more unemployed youth can take up this as a self-employment opportunity."
Wireless LAN Security Myths That Won’t Die
It's been two years since I wrote "The six dumbest ways to secure a wireless LAN," and it's probably been one of my more successful blog entries ever, with two flashes on Digg. Since that time, I've written a free electronic book on enterprise wireless LAN security for anyone to use and download from TechRepublic. Since it has been two years, I'm going to update the information with more defined categories and better explain why they're so bad from an ROI (return on investment) and security perspective.
Waste of money, resources, time
• MAC filtering
• Disable DHCP and use Static IP addresses
• Signal suppression with expensive paint or antenna placement
Worse than no wireless security at all
• LEAP (adding EAP-FAST to the list)
• SSID Access Point beacon suppression (or "hiding")
Has nothing to do with security mechanisms
• Just use 802.11a or Bluetooth
The original blog has probably been read by more than a hundred thousand people, but I still can't kill these nasty urban legends because they are so engrained as "best practice." I was shocked and infuriated to find that even some security certifications, like the CISSP, and VISA payment processing compliance requirements, like PCI, are recommending most of these methods as "best practice."
Note that I recently attended the official CISSP boot camp training and in spite of this bad wireless LAN advice, I still recommend the CISSP certification and training. It really taught me how to better communicate to management and business people and align security and IT to the business. I have, however, asked them to fix their small section on wireless LAN best practices, and I hope they fix it.
The most common and misguided arguments I hear against my advice and in favor of implementing this nonsense are:
• What's the harm? It's a layered approach to security.
• It makes us harder to see and hack.
• We're a small company, and we can't afford real security.
The problem with these arguments is that they're based on some fundamentally wrong assumptions and an inadequate knowledge of how wireless LAN security works.
• These aren't layered approaches; they're more like buying overlapping warranty coverage, since any benefit against casual bandwidth thieves is already covered by real security measures. The harm is that people confuse these methods for the real thing, and they spend more money and resources on implementing the wrong security mechanisms and end up skimping on real security.
• They don't make you harder to hack. Kismet, which is a free utility, will reveal so-called hidden SSIDs, MAC addresses, and static IP schemes within seconds of scanning the airwaves, sending all that money and time spent on MAC address and static IP management down the toilet.
• If you have a limited budget with limited IT staff, it's all the more reason to use real wireless LAN security, because you certainly won't be able to afford the complexities of MAC filtering and static IP configuration. True wireless LAN security is far cheaper to implement and maintain.
Rock solid wireless LAN security for the home or small office can be summed up in a single paragraph. All you need to do is use WPA-PSK security with a random alpha-numeric pass-phrase that has a minimum of 10 characters. I estimated that a truly random alpha-numeric 10-character pass-phrase using modern single-core computers will take one thousand PCs working in parallel 500 years to crack. If your hardware doesn't support WPA mode, you can almost always get a free software/firmware upgrade to support it. If WPA mode absolutely can't be supported, you can run WEP (104 bit AKA 128) security, which might take a semi-skilled script kiddy using two PCs in an active attack configuration 10 minutes to break. WEP shouldn't ever be considered effective wireless LAN security, but it's hundreds of times harder to break than any of the myths. WEP can be considered an actual deterrent when nothing better like WPA is available, whereas these myths aren't even worthy of the deterrent title. The ROI for any of the first three wireless LAN security myths is essentially zero.
Worse than no Wireless Security at All
I've added a second subcategory of "worse than no wireless security at all." For this category, I've listed Cisco's proprietary LEAP and EAP-FAST protocols, along with SSID beacon suppression. Not only are these mechanisms ineffective, they're even harmful. LEAP uses unencrypted hash-based authentication, which relies strictly on password complexity. The problem is that 99% of all human-generated passwords can be cracked within hours or days. That means once a hacker breaks into a wireless LAN network by cracking LEAP, they're not only inside your network but they've got your passwords to freely access your data. If a domain admin were to use LEAP, the keys to the kingdom are handed over to the attacker. Cisco co-created a superior authentication mechanism called PEAP, which is standardized. But still pushes its customers toward the proprietary EAP-FAST protocol, which was created as a direct replacement for LEAP as a way to lock you in to Cisco hardware. EAP-FAST is only slightly less dangerous than LEAP, but its default and most commonly used configuration is just as dangerous as LEAP because it relies on anonymous server certificates that anyone can spoof.
I've added SSID beacon suppression to the list of "worse than no wireless security at all" because it forces you to spew your wireless LAN configuration from your laptop everywhere you go. Security researcher Joshua Wright recently highlighted these dangers in this article. The problem with turning off SSID beaconing on your access point is that not only is it worthless, since the SSIDs are still easily detectible over the air, but it also forces your laptops to probe for the SSID. The Week in Review is edited and published by Jack Spratts. That means that all of your laptops will run around the world broadcasting your SSID, which opens them up to data seepage or even evil twin attacks. If you forget this nonsense about SSID beacon suppression on the access point, you can turn off SSID probing on your notebooks, making them safer to operate. You can do this with the latest Windows XP SP2 Wireless Client Update, and Windows Vista has this feature built in. You simply need to make sure that you don't enable "Connect even if the network is not broadcasting." The default behavior for SSID probing in Windows Vista is off, which is the safe setting.
As for using 802.11a or Bluetooth, there's nothing wrong with those technologies, except that they shouldn't be confused with security mechanisms. They're merely alternative data transport mechanisms, and you need to apply the same wireless LAN security principles. Bluetooth shouldn't even be considered a wireless LAN technology, and the only reason I mentioned it is that some so-called experts were touting it as such.
One other solution mentioned for wireless LAN security is the use of VPN, which is an outdated and cumbersome method. The use of VPN for wireless LAN security isn't fundamentally dangerous (if you avoid using PPTP), but it does leave the data link layer wide open, which lets a hacker do nasty things like DHCP poisoning or possibly other Layer 2 attacks. At the very least, it allows the attacker to be on the same subnet as your legit users, which means they get to probe for missing personal firewalls or holes. At worst, the attacker can try to MAC bomb the CAM table or try to do a denial of service attack with spanning tree protocol BPDU VLAN resets if the access point passes on these attacks. Most people just stick their access point right into their Cisco switches with no VTP domain password, along with automatic trunking turned on with no consideration for Layer 2 security. My recommendation is that organizations focus on data link layer solutions like WPA, which offer cheaper and more effective protection.
The bottom line is that these six security myths should be permanently labeled worthless at best or dangerous at worst. For businesses and organizations, I would highly recommend my ultimate guide to enterprise wireless LAN security. For small businesses and homes, all you need to do is use WPA-PSK security with a random alpha-numeric pass-phrase that's a minimum of 10 characters long. If WPA security isn't available to you, at least run WEP as a 10-minute deterrence mechanism.
OLPC Manufacturer to Sell $200 Laptop in Developed Countries
Quanta, the company manufacturing the One Laptop Per Child (OLPC) project's XO laptops, plans to begin selling low-cost budget mobile computers for $200 later this year. According to Quanta president Michael Wang, the company plans to leverage the underlying technologies associated with OLPC's XO laptop to produce laptop computers that are significantly less expensive than conventional laptops.
The OLPC project, which hopes to bring inexpensive Linux-based laptops to the education market in developing countries, selected Quanta (the laptop manufacturing company that produces mobile computers for HP, Dell, and Acer) to produce the individual XO laptop units. OLPC project founder Nicholas Negroponte says that OLPC has no plans to make XO laptops, which are "designed for the poorest and most remote children in the world," available to ordinary consumers in developed countries. OLPC plans to sell the laptops in bulk to governments, which will then distribute the hardware to school children.
OLPC production begins, Thailand pulls out
AMD pulls plug on Personal Internet Communicator
Quanta's announcement will be welcomed by the throngs of technology enthusiasts in the US and elsewhere who have expressed interest in acquiring one of the OLPC's budget-friendly laptops for personal use. Quanta plans to create a new "emerging PC" business unit to focus on establishing a new global market for low-cost computers. Although few details are available at this time regarding the software that Quanta will ship with its own XO-like laptops, it is known that the company intends to use open source software. Since virtually every element of the OLPC platform (including the unique user interface) is available under various open source licenses, Quanta could easily ship its own computers with the exact same software used on the XO.
With luck, Quanta's increased involvement in the low-cost mobile computing market will allow the company to further decrease manufacturing costs and help the OLPC project reduce the XO's total cost per unit. This move by Quanta could also help make modern technology more accessible to underprivileged families around the world.
Samsung Announces 64 GB Solid State Drive
Samsung is upping the ante in the solid state drive market, announcing it plans to ship a 64 GB, 1.8-inch model in the second quarter of 2007.
The market for flash-based solid state disk drives which act as drop-in replacements for traditional hard drives used in mobile and portable devices is heating up: Samsung announced today that it plans to ship a 64 GB solid state drive in the second quarter of this year. The announcement comes on the heels of SanDisk announcing a 32 GB flash drive only a couple weeks ago, and Fujitsu announcing solid state drives as an option in selected LifeBook portable computers.
Not only does Samsung's new offering increase the capacity available in solid state drives, it increases the performance as well. Samsung claims the respective read and write performance on the drive have been increased by 20 and 60 percent: the 64 GB unit can read 64 MB/S, write 45 MB/s, and consumes just half a Watt when operating (one tenth of a Watt when idle). In comparison, an 80 GB 1.8-inch hard drive reads at 15 MB/s, writes at 7 MB/s, and eats 1.5 Watts either operating or when idle.
Samsung plans to start mass production of the 64 GB solid state drive in the second quarter of 2007, although the company didn't release any estimates on the unit's price to OEMs or consumers.
Using Steam to Cool Computers
You can hold Celsia's new cooling component for about three seconds. Then your fingers start to feel as if they're getting burned.
It's part of a new line of components from the San Jose, Calif.-based company that it says will cool off torrid hotspots inside computers and light fixtures running light emitting diodes (LEDs) better than conventional heat pipes or fans.
Feeling is believing. In the corporate demonstration, a person stirs a cup of hot water with a stick of copper. It takes about five seconds or so to feel a gradual warming sensation. The human guinea pig then stirs with one of the company's heat spreaders: the rapid rise in temperature is noticeable before two seconds elapse. Holding the NanoSpreader for five seconds is nearly impossible.
The sudden rush of heat occurs because steam is being created inside the NanoSpreader, said George Meyer, director of development at the company, which was re-launched in 2006. The exterior of the device is a copper sleeve that absorbs heat from a processor or a hard drive.
The interior consists of a series of vacuum-sealed chambers and channels containing small amounts of water. The water turns to steam, which then conducts the heat from the source to another component, such as an aluminum heat sink, that can dissipate the heat into the ambient atmosphere.
"Steam conducts heat better than almost any substance out there," he said.
Testers often don't believe that. "There's got to be some sort of chemical in there," one observer said, though Meyer affirmed that the active ingredients are copper and water.
Heat is one of the primary obstacles for industrial designers and consumer electronics manufacturers these days. Consumers want small, quiet devices. Unfortunately, components like processors and hard drives generate a lot of heat and often require fans or heat pipes, tubes of metal that conduct heat away, to keep them cool.
"The digital video recorder is one of the most strenuous applications for a hard drive there is," said Meyer. Blade server manufacturers and makers of telecommunications equipment are also shopping for new components to remove heat.
The company is also targeting LED lights. Although LEDs can produce a significant amount of light per watt of power, LEDs also generate a significant amount of heat. Thus, LED arrays often need cooling components.
IBM and other companies have created water or oil-filled components for cooling internal computer components for years. But many of these devices contained relatively large amounts of water and are therefore physically large.
Shrinking the size of these components so they won't add bulk in smaller computers has been a bit of a challenge. Cooligy has developed a liquid cooling system, but it requires a mechanical pump. Other companies working on products in this market include Nanocoolers and Cool Chips. None of these companies has experienced broad adoption yet.
For its part, Celsia asserts that it has an advantage in that its components are fairly small, measuring only a few millimeters thick, and are made out of fairly basic materials. It has also teamed up with Taiwan's Yeh-Chiang Technology, one of the largest manufacturers of heat pipes.
Getting this far hasn't been easy. The company emerged from South Korea as iCurie in 2001. In 2005, a new management team was installed and an additional $20 million in funding was raised from various sources.
Celsia's components cost more than ordinary heat pipes or cooling technologies, but fewer cooling components are needed. In the end, the company says using its components versus ordinary ones should be cost-neutral.
The smaller number of components also frees up designers.
"If you are looking at an ultralight portable, you could build it without a fan," he said.
IBM Doubles CPU Cooling Capabilities with Simple Manufacturing Change
According to a new paper released at the IEEE Semi-Therm conference, IBM has discovered a way to dramatically improve processor cooling. Unlike some other recent cooling breakthroughs, IBM's discovery appears to be one that should be relatively inexpensive to implement, and could have a significant impact on consumer microprocessors in the near future. Without fundamentally changing the approach to CPU cooling today and without the use of more advanced setups like water coolers, IBM says that they can double CPU cooling capacity while making it easier and safer to do so.
IBM's find addresses how thermal paste is typically spread between the face of a chip and the heat spreader that sits directly over the core. Overclockers already know how crucial it is to apply thermal paste the right way: too much, and it causes heat buildup. Too little, and it causes heat buildup. It has to be "just right," which is why IBM looked to find the best way to get the gooey stuff where it needs to be and in the right amount, and to make it significantly more efficient in the process.
A CPU's heatspreader is normally attached directly to the core by use of a paste or glue that has been enriched with micrometer-sized ceramic or metal particles. These particles then form heat-evacuation bridges between the core and the cooler, and it's these bridges that carry heat into the heatspreader.
In its current form, the process is quite inefficient: IBM's says that up to 40% of a CPU's total thermal budget (i.e., the cooling capacity available to draw heat away from the core) is consumed by these particles. This inefficiency is made worse because the particles aren't truly spread evenly throughout the paste. Instead, particles clump together, forming what IBM refers to as the "Magic Cross", as shown below at Figure 1. This thickened area is a non-homogeneous mixture of paste and particles that dramatically worsens total cooling efficiency across the core.
IBM's solution was to design a series of micrometer-length trenches into the copper cap that sits above the CPU core, as shown in the top diagram ("hierarchical branched channels"). These larger and smaller trenches allow for paste to be evenly distributed at precisely the points where it would normally pile up and form a Magic Cross-like structure. Utilizing IBM's new technology allowed researchers to spread thermal paste into a far more homogeneous and efficient pattern, as shown in Figure 2.
The results are quite impressive. Paste thickness could be reduced by a third, and the pressure required to properly fit a CPU cooler on top of a core was cut in half. All of this, and IBM says that cooling capabilities are effectively doubled.
Manufacturing tools to define the micrometer channels are already in development. IBM offers no specific details on when we might see chips using this new procedure in the wild, but they say that the new technology can be quickly integrated into current manufacturing plants at a low cost and using existing process technologies. Whether or not the AMDs or Intels of the world will buy in remains to be seen, but the potential is undeniable.
Intel Plans Faster Chips That Also Save Power
Intel said Wednesday that it was on track or even ahead of schedule in developing a new generation of chips that would achieve a significant increase in performance without consuming more power.
The new processor families — Penryn, arriving this year, and Nehalam, due next year — will in some cases help Intel catch up technically with its archrival Advanced Micro Devices and in other areas will consolidate performance categories where Intel already leads.
The chips will have wires as short as 45 nanometers, a scale at which 2,000 transistors will fit in the width of a human hair. The resulting chips will have as many as 820 million transistors, making it possible for Intel’s designers to add parallel computing, energy management and graphics to the computing engines that are the mainstay of its business.
Pat Gelsinger, general manager of the company’s digital enterprise group, referring to the pace of Intel’s development efforts, said, “The engine is working, and working well.”
Intel is in the midst of a major overhaul of its business strategy after losing ground to A.M.D. during the last two years. The company’s executives have acknowledged that Intel, the world’s largest chip maker, had been late to respond to challenges in energy efficiency and parallel computing and was racing to catch up.
In a briefing for reporters, Mr. Gelsinger said the Penryn chip family would arrive in the second half of this year. A.M.D. and I.B.M. have said they expect to introduce 45-nanometer chips by mid-2008.
A.M.D. has said it plans to introduce an improved chip code-named Barcelona based on its current 65-nanometer technology during the second half of this year, with four processing cores rather than the current two. On Wednesday, the company said it believed that Intel would not be able to catch up with A.M.D.’s existing designs until it introduced the Nehalem microprocessor generation in 2008.
Mr. Gelsinger described Intel’s approach as a “tick-tock” strategy in which it would make incremental changes with the Penryn processors and then more sweeping design changes with the Nehalam chips. The Nehalam chips will have as many as eight or more processing cores, as well as the potential for built-in graphics and memory control processing and networking.
“It will unlock the full capability of that generation,” he said, referring to the 45-nanometer manufacturing technology.
The technology will in principle allow Intel to create ultralow-power chips, but the company said it was first seeking to increase the speed of its processors without consuming more power than current chips.
Chemists Turn to Sugar to Fuel Batteries
Hey, if you can knock back a Mountain Dew to give yourself a boost, why can't your electronic devices go for a sugar high to keep themselves cranking, too?
Researchers at Saint Louis University in Missouri have cooked up biodegradable fuel cell batteries that they say can run on just about any sugar source and that can last three or four times longer per charge than typical lithium ion batteries. Commercial versions could be ready in three to five years, the researchers say.
The scientists presented their findings at the national meeting of the American Chemical Society. A prototype of the stamp-sized battery runs a calculator, but future applications could include powering computers and recharging cellphones. Tree sap, soda and drink mixes have been used to power the batteries so far.
"This study shows that renewable fuels can be directly employed in batteries at room temperature to lead to more energy-efficient battery technology than metal-based approaches," said study leader Shelley Minteer, an electrochemist at Saint Louis University, in a statement. "It demonstrates that by bridging biology and chemistry, we can build a better battery that's also cleaner for the environment."
Like other fuel cells, the sugar battery contains enzymes that convert fuel - in this case, sugar - into electricity, leaving behind water as a main byproduct. But unlike other fuel cells, all of the materials used to build the sugar battery are biodegradable.
Funding for this study was provided by the U.S. Department of Defense.
GE, Konica Minolta Speed Development of New Lighting Products
General Electric Co. and Konica Minolta Holdings Inc. are accelerating the development of more efficient and environmentally friendly lighting products, the two companies announced Tuesday.
Fairfield-based GE and Tokyo-based Konica Minolta said their goal is to bring Organic Light Emitting Diode (OLED) lighting to market in the next three years. OLEDs are thin, organic materials pressed between two electrodes that illuminate when an electrical charge is applied.
Developers say OLEDs will provide a different way to light homes and businesses and could increase efficiency and environmental performance.
"The alliance of KM, a world leader in imaging products, and GE, a global leader in lighting products, represents an extraordinary opportunity to make the commercialization of OLED lighting products a reality," said Michael Idelchik, vice president of advanced technology programs at GE Global Research.
In addition to increasing efficiency, GE has focused on developing plastic film, coatings and fabrication processes and equipment for the manufacturing needed to produce large-area OLED lighting.
Uranium Ignites ‘Gold Rush’ in the West
Susan Moran and Anne Raup
LA SAL, Utah — Given its connotations, Pandora is an oddly inappropriate name for an uranium mine.
But that does not seem to bother Denison Mines, the company from Vancouver, British Columbia, that owns it. Denison recently reopened this mine about 30 miles southeast of Moab, along with several others in nearby western Colorado, after it lay dormant during the years when the nation shunned nuclear power.
The revival of uranium mining in the West, though, has less to do with the renewed interest in nuclear power as an alternative to greenhouse-gas-belching coal plants than to the convoluted economics and intense speculation surrounding the metal that has pushed up the price of uranium to levels not seen since the heyday of the industry in the mid-1970s.
“There’s a lot of staking going on,” said Mike Shumway, a 53-year-old Vietnam veteran who owns the contracting business that is working the Pandora mine. “It’s like the gold rush.”
Mr. Shumway has personally amassed some 100 uranium claims, including four dormant but potentially rich mines. Some of the claims he bought quietly after less tenacious prospectors could not afford to hold theirs during the long drought while uranium was out of favor. Mr. Shumway’s eyes light up and he cracks a grin as he ponders the fortune he now hopes to gain.
“There’s big money in it,” he said as he probed piles of waste ore at Pandora with a Geiger counter. “What other work do you know of where you can make millions in 30 days?”
Not many. Prices for processed uranium ore, also called U308, or yellowcake, are rising rapidly. Yellowcake is trading at $90 a pound, nearing the record high, adjusted for inflation, of about $120 in the mid-1970s. The price has more than doubled in the last six months alone. As recently as late 2002, it was below $10.
A string of natural disasters, notably flooding of large mines in Canada and Australia, has set off the most recent spike. Hedge funds and other institutional investors, who began buying up uranium in late 2004 to exploit the volatility in this relatively small market, have accelerated the price rally.
But the more fundamental causes of the uninterrupted ascendance of prices since 2003 can be traced to inventory constraints among power companies and a drying up of the excess supply of uranium from old Soviet-era nuclear weapons that was converted to use in power plants. Add in to those factors the expected surge in demand from China, India, Russia and a few other countries for new nuclear power plants to fuel their growing economies.
“I’d call it lucky timing,” said David Miller, a Wyoming legislator and president of the Strathmore Mineral Corporation, a uranium development firm. “Three relatively independent factors — dwindling supplies of inventory, low overall production from the handful of uranium miners that survived the 25-year drought and rising concerns about global warming — all have coincided to drive the current uranium price higher by more than 1,000 percent since 2001.”
Strathmore controls more than three million acres of exploration projects in Canada and previously discovered sources in the United States, primarily around Grants, N.M. In its heyday, the Grants “uranium belt” provided 340 million pounds of uranium, making New Mexico an even larger producer than Utah or Wyoming. Some politicians in the area hope there will be a new wave of mines, mills and jobs.
Strathmore, with a market capitalization of $300 million, is one of about 400 publicly traded uranium stock companies (most of them, like Strathmore, trade on the Toronto Stock Exchange). Many of the companies are much smaller. Some are essentially shells.
“There’s so much money pouring into this sector,” said Julie Ickes, editor and publisher of StockInterview.com, which tracks uranium prices and companies. “If you put ‘uranium’ in your company name, you can look like you’re looking for property,” he said. “It’s a lot of talk.”
The feverish trading in speculative uranium company shares harks back to the early 1950s, when some 500 stocks traded on the Salt Lake City Penny Stock Exchange. Moab called itself “the uranium capital of the world.”
“You could say there were more millionaires than people here in Moab,” said Sam Taylor, 73, who has been publisher of the local weekly, The Times-Independent, since he took it over from his father in 1956.
Sitting stooped over his wooden desk at the newspaper’s office downtown, Mr. Taylor recalls how he got “the scoop of the century” when a young, cocky geologist named Charlie Steen pulled up in his battered jeep asking if The Times-Independent would publish his six-page paper on his recent discovery of pitchblende, or high-grade uranium.
Not long after, Moab lost its quietude and anonymity to the ore trucks roaring through town almost around the clock to deliver uranium to a mill on the north edge of town.
Globally, 180 million pounds of processed uranium are consumed each year by nuclear power plants. Production worldwide from mines amounts to only 100 million pounds. Roughly 75 million pounds come out of utility company stockpiles. What is actually traded in the spot market is only about 35 million pounds.
Some industry watchers fear the uranium market is entering the bust phase of another boom-bust cycle.
“It’s like the tech bubble,” said James Finch, senior editor of StockInterview.com. “We’re waiting for the crash.”
But others see plenty of room for prices to climb. One is Bob Mitchell, founder of Adit Capital, a small hedge fund in Portland, Ore. In December of 2004, he became one of the first hedge fund managers to start buying uranium.
Since then other hedge funds and institutional investors have jumped into the market, some of them hoarding uranium while the price keeps rising. Even some established mining production companies are spinning off or becoming partners with hedge funds.
Uranium executives, investors and analysts alike agree that a major underlying cause of the current bull market is that mines are not generating enough uranium to meet growing demand. The supply constraints can be traced back to the end of the cold war when the United States and the former Soviet Union started converting enriched uranium from dismantled atomic weapons into nuclear fuel for peaceful purposes.
That program, and huge incentives offered to uranium companies by the Nuclear Regulatory Commission, flooded the market with excess supply. At the same time, demand shrank. The price of uranium fell sharply.
As a result, most uranium producers scaled back or closed their mines. Some companies sold themselves to French, Canadian and British corporations, which now dominate the industry. Some companies with nuclear power operations sold some of their inventories when the price was low to avoid storage costs.
But by 2003 uranium inventories held by utilities in the United States were coming back into balance. Then a series of natural disasters — flooding of the world’s largest uranium mine, McArthur River in Canada, and more recently at other mines in Canada and Australia — further pinched supply. Power companies now find themselves competing with aggressive institutional investors for high-price uranium.
“For so long they’d been the buyer in a buyer’s market,” said Gene Clark, chief executive of TradeTech.com, a publisher of reports and data on the nuclear fuel market. “Now they’re like a wallflower. It’s hard on their egos.”
James Malone, vice president of nuclear fuels at the Exelon Corporation, the Chicago-based utility that owns 17 reactors at 10 sites, making it the largest nuclear operator in the country, said in a telephone interview that current market conditions were having a “small impact” on some of the company’s contracts that were pegged to the market price. He declined to elaborate.
The people staking claims and drilling underground are, in the meantime, happy to see the frothy market become frothier. So far this year, 2,700 new uranium claims have been filed with the Bureau of Land Management in Colorado alone. That is nearly half the claims filed in all of last year, and a big jump from the 104 claims for 2004.
“It’s pretty spectacular,” said Jesse Broskey, a land law adjudicator with the bureau. “It’s tripled our workload.”
But many people in the region, including leaders of the Navajo Nation, are not particularly excited to invite Pandora and other participants in the nuclear industry back into their communities. They say the mining and power companies poisoned workers and residents, in some cases fatally, with radon, silica and tainted groundwater.
More stringent federal oversight means that mines built or refurbished today provide much better ventilation, which minimizes the underground risks. Mine operators are required to take readings of radon levels and air flow in the mines, and to measure miners’ exposure doses.
Another red flag, for environmentalists and utilities alike, is the lack of a national storage site for radioactive waste. The proposed home, Yucca Mountain in Nevada, has cost taxpayers billions over many years as it sits idly, waiting for a final decision.
That is one of several factors holding back the revival of nuclear power in the United States. “We won’t build a new plant knowing there’s nowhere to put the used fuel,” Mr. Malone of Exelon said. “We won’t build one without community support, and we won’t build until market conditions are in place where it makes sense.”
But that is not holding back Kyle Kimmerle, owner of the Kimmerle Funeral Home in Moab. Mr. Kimmerle, 30, spent summers during his childhood camping and working at several of his father’s mines in the area. In his spare time he has amassed more than 600 uranium claims throughout the once-productive Colorado Plateau.
“My guess is that next year my name won’t be on the sign of this funeral home anymore and I’ll be out at the mines,” he said.
He recently struck a deal with a company to lease 111 of his claims for development. The company, new to uranium mining, has pledged $500,000 a year for five years to improve the properties. Mr. Kimmerle will receive annual payments plus royalties for any uranium mined from the area.
“Everybody’s jumping in while the price is going up,” he said. “Sure, it’ll eventually go down. It’s not going to be in three years. But after 10 years I’d say all bets are off.”
New Effort to Tap Technology to Aid the Service Economy
A group of large technology companies, universities and professional associations are creating a new organization to support and promote research into ways that technology can increase productivity and innovation in the economy’s service sector.
The creation of the organization, the Service Research and Innovation Initiative, will be officially announced today. It represents the latest step by technology companies and some universities to promote an emerging field that is being called “service science.”
The early academic programs are a blend of computing, social sciences, engineering and management. The aim of service science is to try to improve productivity and accelerate the development of new offerings in services, which account for about 80 percent of the United States economy and similarly large shares of other Western economies.
In the last couple of years, more than three dozen universities in several countries have added service science courses, and the National Science Foundation has begun financing a few service research projects.
Among corporations, I.B.M. has been a leader in promoting service science programs in universities, and it has reoriented its own research laboratories to focus more on services.
“We need a professional organization to help promote service science,” said James C. Spohrer, director of service research at the I.B.M. Almaden Research Center in San Jose, Calif. “It is one of the seed crystals around which the new discipline will form.”
I.B.M. and Oracle are founding corporate members of the Service Research and Innovation Initiative. Other company members of the organization’s advisory board include Accenture, Cisco, Computer Sciences, EMC, Hewlett-Packard, Microsoft and Xerox.
Researchers from several universities are also members, including some from the University of California, Los Angeles; the Wharton School at the University of Pennsylvania; and Arizona State University. The European Commission and a German research organization, the Fraunhofer Institute, are also members of the advisory committee.
The new initiative is backed by two professional societies, the Technology Professional Services Association and the Service and Support Professionals Association. The executive director of the new organization, Thomas W. Pridham, is the senior vice president for advanced programs of the service and support professionals group.
J. B. Wood, the chief executive of both the longstanding professional groups, said the purpose of the new effort was to have a neutral, nonprofit professional organization around which to build a community of common interest. “The investment in research by companies and the government has driven so much innovation on the hardware side of information technology,” Mr. Wood said. “We think there is a similar opportunity in services.”
The new organization, according to Mr. Pridham, will provide a forum for collaboration to help set research priorities, pool corporate funds to support academic programs, and advise the government on preferred targets of basic research. It will hold a symposium on service research on May 30 in Santa Clara, Calif.
New GPL Draft has Olive Branches, Thorns
The latest draft of the dominant open-source license, the General Public License, has an accommodating approach to some significant objections, but it could throw a wrench into the works of a major open-source company, Novell.
When the Free Software Foundation released the previous draft eight months ago, it caused indigestion among some open-source software fans. Among them were Linus Torvalds, leader of the Linux operating system kernel project, and Hewlett-Packard.
The third GPL 3 draft softens some positions in areas where those Torvalds and HP were concerned, but it raises the possibility of crippling Novell's budding Linux business. That would be a dramatic change, given that Novell is one of two major Linux sellers and that it's staked much of its future on the software.
The new draft reflects the difficulties in meeting ideological goals but not alienating a software industry that's only begun to embrace the 16-year-old GPL 2. "At some point you become so shrill that you lose the audience, who moves on to something that better fits the business needs," Steve Mills senior vice president of IBM's software group, said Wednesday while discussing the new GPL.
Through a patent partnership announced in October, Microsoft agreed not to sue Novell's Suse Linux customers for any infringement. The new GPL draft would ban such arrangements, but the foundation said it hasn't decided whether the ban would extend only to future deals.
If past deals aren't grandfathered in, the effect on Novell could be "catastrophic," said Mark Radcliffe, an intellectual property attorney with DLA Piper and member of a committee providing comment on the license. "If (the Microsoft deal) violates this, somebody could terminate their license to distribute Linux."
Microsoft and Novell have more optimistic interpretations. "The draft of the GPL 3 does not tear down the bridge Microsoft and Novell have built for their customers," said Horacio Gutierrez, Microsoft's vice president if intellectual property and licensing, in a statement. And Novell spokesman Bruce Lowry added, "Nothing in this new draft of GPL 3 inhibits Novell's ability to include GPL 3 technologies in Novell's Suse Linux Enterprise, OpenSuse and other Novell open-source offerings, now and in the future."
Although the FSF left the door open for the Microsoft-Novell deal to survive, it's because it also crafted language to ensure all recipients get the benefits Novell customers get from Microsoft. Any company offering promises of patent safety to one audience automatically extends those promises to all recipients of the software involved, according to the new draft.
"We believe it is sufficient to ensure either the deal's voluntary modification by Microsoft or its reduction to comparative harmlessness," the foundation said in its 61-page explanation of the new license draft.
Torvalds said he's "pleased" with changes in the new GPL draft, a significant change from his earlier strong objections.
"Whether it's actually a better license than the GPLv2, I'm still a bit skeptical, but at least it's now 'I'm skeptical' rather than 'Hell no!'" he said. Torvalds had frowned on earlier provisions that he believed could lead to incompatible versions of the GPL and that reached inappropriately into the domain of hardware designers.
Torvalds is noncommittal about whether he might try to move the Linux kernel to GPL 3--a change that would require the permission not just Torvalds but also of all other Linux kernel copyright holders. But he didn't rule it out.
"The current draft makes me think it's at least a possibility in theory, but whether it's practical and worth it is a totally different thing," he said. "Practically speaking, it would involve a lot of work to make sure everything relevant is GPLv3-compatible even if we decided that the GPL 3 is OK."
HP, which earlier was outspoken about a patent-related complaint, isn't commenting about its thoughts on the third draft. But the draft appears to have addressed at least one concern.
HP had objected to a provision that said any party that distributes GPL software agrees not to sue recipients for infringement of patents involved with the software. The new draft is more moderate, however. In it, a party agrees only to sue for patents related to software it contributes to an open-source project, not for software it distributes without modification.
Barriers to code sharing
Sun Microsystems picked the GPL to govern its Java software and OpenSparc processor design and is considering the GPL for its OpenSolaris operating system.
But there's one thing that Simon Phipps, Sun's chief open source officer, would still like to see in the new draft: more compatibility between different open-source licenses.
"The wider free and open-source community has really got to do something about license compatibility," Phipps said. "We've got lots of software (projects) around that's free software, yet we can't mix them. It's like friendly-fire casualties. We need to do something about that, but it seems clear that GPL 3 is not going to be the vehicle by which we do that."
Sun is considering GPL 3 for Solaris, but the Linux kernel is governed by GPL 2, and license incompatibilities could keep the two projects separate. In Phipps' opinion, though, that particular divide is technical, not legal.
"The main reason why we're not seeing intermingling is because the two are designed in radically different ways that makes intermingling impossible," Phipps said.
The issue also crops up in Java. Sun chose the GPL for that project, but much open-source Java work--including the Apache Harmony project to reproduce the Java's core components--is under the Apache License. The foundation had hoped for Apache License compatibility, but patent provisions got in the way, the foundation said in its GPL 3 draft explanation.
"We regret that we will not achieve compatibility of the Apache License, version 2.0, with GPL 3, despite what we had previously promised," the foundation said.
It's inevitable that not everybody will be happy with the new GPL, but there's still room for more adjustment. A penultimate "last-call" draft is due in 60 days, and the final version 30 days after that--June 26.
And the changes in the new draft released Wednesday show the foundation is willing to budge, Radcliffe said. "It shows the FSF has been listening to the various constituents and has been responding."
CNET News.com's Candace Lombardi contributed to this report.
US 'No Longer Technology King'
The US has lost its position as the world's primary engine of technology innovation, according to a report by the World Economic Forum.
The US is now ranked seventh in the body's league table measuring the impact of technology on the development of nations.
A deterioration of the political and regulatory environment in the US prompted the fall, the report said.
The top spot went for the first time to Denmark, followed by Sweden.
Countries were judged on the integration of technology in business, the infrastructure available, government policy favourable for fostering a culture of innovation and progress and leadership in promoting the usage of the latest information technology tools.
The Networked Readiness Index, the sixth of its kind published by the World Economic Forum with Insead, the Paris-based business school, scrutinised progress in 122 economies worldwide.
Despite losing its top position, the US still maintained a strong focus on innovation, driven by one of the world's best tertiary education systems and its high degree of co-operation with industry, the report said.
The country's efficient market environment, conducive to the availability of venture capital, and the sophistication of financial markets, was also given recognition.
Networked Readiness Index Rankings 2006 (2005)
1: Denmark (3)
2: Sweden (8)
3: Singapore (2)
4: Finland (5)
5: Switzerland (9)
6: Netherlands (12)
7: US (1)
8: Iceland (4)
9: UK (10)
10: Norway (13)
Denmark is now regarded as the world leader in technological advancement, with its Nordic neighbours Sweden, Finland and Norway claiming second, fourth and 10th place respectively.
"Denmark, in particular, has benefited from the very effective government e-leadership, reflected in early liberalisation of the telecommunications sector, a first-rate regulatory environment and large availability of e-government services," said Irene Mia, senior economist at World Economic Forum.
European countries to make the top 20 included Switzerland in fifth place, the Netherlands, one of the most improved in sixth, the UK (nine), Germany (16), Austria (17) and Estonia (20).
While countries from Asia and the Pacific continued to progress, the powerhouse economies of China and India both showed a downward trend.
India was four positions down on last year to 44th, suffering from weak infrastructure and a very low level of individual usage of personal computers and the internet.
China was knocked to 59th place, nine positions down, with information technology uptake in Chinese firms lagging.
Movie Review | 'Headspace'
In a Trance Where Strobes Flash and the Techno Beat Pulses
Matt Zoller Seitz
If you’re looking for a documentary about the electronic music scene filled with historical lectures, performance clips and talking heads, “Headspace ... The Sound of Life ...” isn’t for you and doesn’t try to be.
Unlike previous documentaries about the topic, this feature by Jethro Senger tries to capture the essence of the music and the lifestyle associated with it. It’s experimental rather than expository, bargain-basement visionary work that deploys evocative filmmaking devices (slow dissolves, frame blurs, slow and fast motion, strobe-flash effects) to induce a 3-a.m.-on-the-dance-floor mindset, a feeling that time is suspended and that the only thing that matters is the beat (described by one interview subject as “fat kick always — boom, boom”).
Here and there, Mr. Senger throws a factual tidbit our way, pointing out, for instance, that the repetitive, trancelike rhythms of techno reflect a blurring of international boundaries and the sounds of urban and industrial life. But mostly the film avoids academic trappings, which means that it will be catnip to devotees but impenetrable to outsiders.
There’s no narrator, no recurring timeline and surprisingly few on-screen ID tags telling you who’s speaking at any given moment. “Headspace” is more interested in the patterns made by downcast laser beams cutting through smoky air.
The Sound of Life ...
Opens today in Manhattan.
Produced and directed by Jethro Senger; directors of photography, Mr. Senger, Brian Zahm and Roberto Ballesteros; edited by Mr. Zahm and Mr. Senger; released by Firelabs Inc. At the Two Boots Pioneer Theater, 155 East Third Street, at Avenue A, East Village. Running time: 85 minutes. This film is not rated.
Regal, DreamWorks CEOs see 3D Transforming Movies
Three-dimensional film technology could transform the movie business, with viewers willing to pay a premium for it, the heads of the top U.S. movie theater chain and largest independent animation studio said on Wednesday.
Michael Campbell, chairman and CEO of Regal Entertainment Group, said box office results from the handful of 3D films released so far convinced him of the "potential advantages for theaters, not just studios" in switching to digital projection systems that support modern 3D technology.
Campbell told analysts at a Bank of America conference that audiences were willing to pay premium ticket prices for 3D films, and said they preferred them by a 2-to-1 margin.
Another deciding factor for Regal was a strong show of support for the new medium by Hollywood studios, among them the Walt Disney Co. and DreamWorks Animation SKG Inc., which announced this month that it will make all its movies in 3D, starting with "Monsters vs. Aliens" in 2009.
Disney is set to release its animated film, "Meet the Robinsons", on Friday to 701 digital 3D screens, the largest such release ever, and has set up a studio with director Robert Zemeckis to produce animated movies in the new format.
"What that is going to mean for our industry in a few years when we have thousands of 3D screens ... if we can sell 10 to 15 percent higher (priced) tickets, that is a needle mover," Campbell said.
DreamWorks Chief Executive Jeffrey Katzenberg told analysts in a separate session that making animated films in 3D would add $10 million to $15 million to production costs, but he considered it a worthwhile expense.
"The audience actually feels in the (animated) world in a way that we have not really seen before. From a filmmaking standpoint, it is really exciting," Katzenberg said.
Katzenberg said nearly every major Hollywood studio plans to make "big event films" in 3D for release in 2009. He added that one day, "the mainstream of moviemaking is going to be the 3D experience ... and consumers will pay a premium."
The upcoming slate of 3D films from top directors, including Steven Spielberg, Zemeckis, James Cameron and Peter Jackson, would hurry along the digital transition in theaters, which had been "slow to embrace" the new technology.
"If half their business is a premium business, that changes the whole economics of the business," he said. "The momentum is gathering. This is the most exciting thing that has happened in the business since I have been in the business."
Katzenberg said that if enough theaters have converted to digital 3D by the 2009 release of "Monsters vs. Aliens," he would consider releasing the film only in that format, and making a 2D version available only on DVD.
Retailer TJX Says 45 Million Card Numbers Stolen
Off-price retailer TJX Cos Inc. said that information from about 45.7 million credit and debit cards was stolen in a computer data security breach over an 18-month period.
The operator of the T.J. Maxx and Marshall's chains also said that personal information -- including names, addresses and personal ID numbers -- of about 451,000 people who returned merchandise without a receipt was stolen, adding to the 3,600 it had previously identified.
The company gave the numbers in a regulatory filing late on Wednesday, more than two months after first disclosing that its computer system had been compromised by hackers.
Data from about 75 percent of cards was either expired or had masked data, meaning that the card numbers were not readable, the company said in the filing.
The company said it believes its computer system was accessed by an unauthorized user in July 2005, then on subsequent dates in 2005 and from mid-May 2006 to mid-January 2007. It added that no customer data was stolen after Dec. 18, 2006.
Last week six people in the Miami, Florida area were arrested in connection with the purchase of hundreds of thousands of dollars worth of gift cards from Wal-Mart Stores Inc. and Sam's Club with credit and debit cards suspected of coming from the TJX security breach, according to media reports.
The stolen data covers transactions dating as far back as Dec. 2002, the company said in its annual 10K report, filed with the U.S. Securities and Exchange Commission.
"In terms of the damage that's created, i would say this (incident) is very significant because of the sheer number (of people involved)," said Terrence DeFranco, chief executive of Edentify Inc., a computer security company.
DeFranco said that capturing the suspects would be very helpful for investigators to learn more about their methods but that fraud is likely to persist.
"The bottom line is that these things will continue even though we are getting more educated, because the perpetrators become smarter and understand how to perpetrate these crimes more effectively."
TJX shares were up 25 cents, or 0.9 percent, at $26.75 on the New York Stock Exchange.
Is Your Computer a Criminal?
Your home computer may be committing a crime at this very moment. It might be sending out spam. It might be buying stock as part of a pump-and-dump scheme. Or it might be helping attack the Internet itself, silently and invisibly, as you read this story. And the odds your computer is a criminal are quickly rising.
The Web, some say, has been turned into an operating system for criminals. Computer viruses that hijack PCs and turn them into electronic robots, or “bots,” have become the killer app. The operation of networks of hijacked computers is so lucrative that hackers are actually fighting electronic wars over them, a story we will explore next week in part two of this series.
New hacker techniques make these virus attacks so subtle that there is no way you would know your computer is a criminal. And there is a growing sense among security experts that hackers have gained the upper hand in what was once a neck-and-neck arms race.
Bots can squirm their way onto home computers in myriad ways: a virus-laden e-mail or a booby-trapped Web site are the most common. But some viruses can attack your computer in the background, silently worming their way through networks via unprotected ports and porous firewalls, using vulnerabilities that software companies don't know about.
Earlier this year, Internet founding father Vint Cerf dramatically suggested that 150 million computers worldwide may have been hijacked by criminals. Most experts think that his estimate is high, but they still count infected computers in the millions, or tens of millions. And there is general consensus that the Internet is under assault from virus writers like never before.
Listen carefully to the words of those who are trying to help us keep our computers safe from Net criminals and you’ll get a creeping sense that the boat is leaking faster than they can bail out the water. There were two-and-a-half times as many viruses released in 2006 as in 2005, and the growth rate has continued through the first quarter of 2007, said Eugene Kaspersky, chief researcher for Kaspersky Labs.
Antivirus firms "may not be able to withstand the onslaught," he said at a recent computer security conference. "This is a competition where the antivirus companies, I fear, are not in a good position."
Another antivirus executive put it more bluntly in a private conversation. “I think we’ve failed,” said the official, speaking on condition of anonymity. Computer security firms often use hyperbole to help get attention for their products, but expressing helplessness is something new.
Serious crimes for serious money
The security firms’ helplessness means more home computers than ever are being hijacked by organized criminals. Those who control the computers, known as “bot herders,” have little interest in the kinds of pranks that hackers typically played with their viruses five or 10 years ago. They commit serious crimes for serious money.
How serious? Earlier this year, a bot army sent a torrent of Internet traffic at two of the Web's 13 critical domain name servers, directing the equivalent of millions of e-mails at them within a few minutes. The mysterious onslaught would have rendered the Web useless if it had succeeded in taking the domain name servers down, but after a few hours it stopped as quickly as it started.
Why would an attacker perform such a show of strength? It might have been a marketing ploy.
The Internet Corporation for Assigned Names and Numbers, or ICANN, which helps run the domain name servers, speculated in a recent report that the attack was the work of a bot herder trying to close a sale by demonstrating the size and power of his army of hijacked computers.
These bot armies – often between 50,000 and 70,000 PCs strong -- are leased out for around $5,000 a day to spammers, said Howard Schmidt, former White House cyberczar. An attacker who might want to threaten a bank with denial of service and demand an extortion payment would probably have to pay more.
“These things are insidious,” he said.
And sometimes they are overwhelming. Ben Mayrides, a security guru for America Online, says the firm regularly sees bot armies – or “botnets” -- of 200,000 infected computers. In 2005, Dutch authorities announced they had arrested three youths who controlled a botnet of 1.5 million computers that they assembled using a single Trojan horse program.
Big money is stock scams
Individual bots operate in complete silence, but we all see their handiwork. At this point, almost every spam e-mail is sent from a hijacked computer, according to Uriel Maimon, a researcher at security firm RSA. That means every time you receive a spam, a hijacked computer is at the other end. For evidence of a bot epidemic, researchers point to the recent resurgence of spam, which has doubled in the past 12 months.
Forget Viagra sales: Spammers have largely graduated to manipulating stock markets. Most spam is image spam now, designed to pump up stock prices in thinly traded companies so someone can make a quick profit. In a recent e-mail apparently written by a stock spammer and examined by MSNBC.com, the author brags he can more than double a stock price within two to three weeks.
“We can increase the cost of your share and we can increase average day trading,” the e-mail says. “We can increase price up to 200-260 percent in 2-3 weeks and also increase range by 10 times each trading day. … Our payment for that is 10 percent.”
With increasing sophistication and deliberation, computer hackers are getting the most out of hacked computers, too. The computer crime du jour is a simple but effective stock pump-and-dump scheme that goes like this: Hackers buy a stock, then use hijacked computers and stolen brokerage accounts to buy the stock at inflated prices using other people's money. When the hackers sell their original shares, they make a killing.
In March, three Indian nationals were sued by the SEC for allegedly pocketing $121,000 after manipulating stocks and options on 14 firms, including Google and Sun Microsystems. They group managed to spend nearly $2 million in other people's money, the U.S. Securities and Exchange Commission said. One victim had $180,000 in his brokerage account, left for a vacation, and returned to find his account had a negative $200,000 balance.
The SEC is aggressively pursuing stock spam criminals, said John Reed Stark, head of Internet enforcement for the agency. But the dangerous combination of hijacked computers and global securities trading offers riches far beyond the legitimate dreams of computer experts in developing economies. As a result, cybercrime has become wonderfully profitable, and fantastically popular.
How do you count the bots?
No one knows how many infected bots there are, but there is little argument that millions of computers have been herded. If your computer isn’t infected, security experts say, certainly someone on your block is part of a bot army.
No government agency counts bots; even law enforcement officials rely on private industry for estimates. Here’s a few:
MessageLabs, a company that counts spam, recently stopped counting bot-infected computers because it literally could not keep up. It says it quit when the figure passed about 10 million a year ago. Symantec Corp. recently said it counted 6.7 million active bots during an Internet scan. Since all bots are not active at any given time, the number of infected computers is likely much higher. And Dave Dagon, who recently left Georgia Tech University to start a bot-fighting company named Damballa, pegs the number at closer to 30 million. The firm uses a “capture, mark, and release,” strategy borrowed from environmental science to study the movement of bot armies and estimate their size.
“It’s like asking how many people are on the planet, you are wrong the second you give the answer. … But the number is in the tens of millions,” Dagon said. “Had you told me five years ago that organized crime would control 1 out of every 10 home machines on the Internet, I would have not have believed that. And yet we are in an era where this is something that is happening.”
That means the Internet is becoming a very rough neighborhood. So rough that many of those who fight computer crime think, in some ways, they are fighting to save cyberspace.
“This is not just a battle between manufacturers of security software and some Internet criminals. It is a war between good and evil,” F-Secure researcher Mikko Hypponen said at a recent European security conference:
Why now? 1. More sophisticated viruses
It used to be that infected computers would eventually stall from the hard work of crime, stumbling over an e-mail blast involving thousands of messages and tipping off the rightful owners. Now, the organized criminals who do this work have remote-control crime down to a science. Instead of using your computer to send 5,000 spam messages in an evening, it might only be instructed to send out five. The bot herders reach the volume they need by repeating that technique with the tens of thousands of computers at their disposal.
AOL’s Mayrides says he’s seen bots instructed to send out only one e-mail per day.
This puts security firms at a distinct disadvantage. A few years ago, Internet service providers would notice tens of thousands of e-mails being sent from a home computer, and could easily remove it from their network. But how can an Internet provider spot five rogue e-mails sent from your machine while you sleep?
“We have a very difficult needle-haystack problem here," Dagon said.
The Storm worm, which infected more than 1 million computers in January by promising information about the deadly winter weather hitting Europe, used a variation of this tactic. A Storm-infected PC observed by Symantec researchers sent out 1,800 e-mails in a five minute span, then simply went to sleep.
Consumers are unlikely to know their computer has been hijacked because there usually are no symptoms.
“People are not going to find out about the bot because it slows down their systems,” said Hypponen. “(Hackers) take great care in making sure it doesn't do anything that the users might notice. Especially with new machines with 2 gigs of RAM, people will not notice they are sending out spam while playing World of Warcraft. The computers are just powerful enough to handle that.”
Why now? 2. China
But improved software is only one reason criminals appear to have gained the upper hand. Another is the sheer the size of their armies. Part of the deluge of new viruses can be attributed to a new generation of hackers from Asia, where broadband has proliferated, and particularly China, where hackers are learning fast, Hypponen said.
Asia is also a grand playground for hackers worldwide, because many home users run pirated copies of Windows and can't load security patches, according to a January report by Florida-based security firm Prolexic. Since China now boasts more Internet users than any other country, it also has more infected computers.
Why now? 3. Volume
The sheer volume of new viruses has become overwhelming. Hypponen says there is so much new malware -- malicious software – submitted every day to his firm that it has abandoned its long-standing practice of having each one analyzed by its researchers. The viruses are processed by computers now and ranked by severity.
“It’s getting harder and harder for us just to keep up with the amount of new malware coming in,” he said. “Right now on a typical day we receive more than two (possible new viruses) a minute. There are thousands every day. The increase in three years has been tenfold. So our lab all the other labs are rebuilding the way we handle them. You can't do it with human power.”
Why now? 4. Perpetual ‘zero day’
The onslaught isn't just about volume, however. Hacker techniques have improved markedly, says Dagon. It used to be that exploiting vulnerable software usually took weeks, as hackers probed software for security flaws. When they published their results, software makers would race to fix the flaws. Simultaneously, criminals would take those flaws and turn them into attacks, often by attaching them to specially crafted e-mails.
On rare occasions, criminals had both the security hole, or exploit, and the delivery tool before the software maker had any notion a flaw existed. Called a "zero-day" attack, these circumstances gave criminals a small window to mercilessly hack defenseless computers.
But this entire cycle of finding and exploiting flaws has been reduced to a few hours, Dagon said. Hackers find flaws, use them to attack, and erase all evidence so fast that software firms never even know there’s a flaw. Dagon has a chilling name for this: "A perpetual zero day window."
Hackers also have learned to write viruses that mutate on their own. Because antivirus software usually catches only known viruses, mutating versions pose a major challenge for security firms. The Storm worm, for example, had 5,000 different variants within a few days of being launched.
Why now? 5. Better command and control
Hackers have more sophisticated tactics to command and control their massive bot armies – another sign that true professionals are in charge. Not long ago, remote-controlled bots used the old-fashioned Internet Relay Channel to communicate. Internet filters could pick out that traffic and disrupt their networks, at times even identifying the controlling computer and cutting off the "head" bot by removing it from the network.
Now, bot networks are increasingly peer-to-peer systems, designed to look like file and music swapping systems like eDonkey. This prevents Internet service providers from picking out bot communications from regular Web traffic. And it also means there is no head bot to cut off, so networks can only be dismantled one infected computer at a time.
Why now? 6. Competition for labor with crime rings
Adding to the challenge antivirus companies face in trying to keep up with cybercriminals is the intense competition for skilled labor. There is so much money being made in the underworld that legitimate firms have trouble recruiting.
“We are dealing more and more with a worldwide industry that employs thousands of people," Kaspersky, the researcher, told the Bangkok Post earlier this month. Said another executive with the firm, “These people are paying programmers the kind of salary that I could never afford."
For years, security experts have been repeating the same formula to consumers – update antivirus software frequently and use a firewall. But experts say that consumers can no longer trust a single antivirus product to protect them. Dagon points to a Web site named VirusTotal.com that scans potential viruses using 30 top antivirus products. The results are sobering.
On March 22, 9,408 virus-laden files were submitted. Only 28 were detected by all 30 antivirus products. Every other virus was capable of slipping past at least one of the antivirus products undetected, which means that even consumers who keep their security software up to date are at risk.
America Online deals with the problem by swarming its files and e-mail with antivirus products. Everything that’s sent through AOL is scanned by 13 or 14 different products, said Mayrides, the AOL security expert.
And still, viruses get through.
“It’s rough out there,” he said. “One (antivirus product) is not good enough. … There are too many attack vectors these days.”
So should consumers stop trusting the Internet? Yes, to a point, said F-Secure’s Hypponen.
“I don’t think end users should lose their trust, but they are trusting too much,” he said. For example, consumers still fall for phishing e-mails and hand over passwords to brokerage accounts despite years of warning. “We should make people lose their trust, break that trust.”
Experts advise computer users to scan their system with multiple antivirus products. It’s not necessary to pay for all the products. A number of free Web-based security services are available to consumers. No single scan is perfect, but doing one is a worthwhile check-up.
Users also can take the energy-saving step of shutting down their computers when they aren’t in use. That way, even if your machine is infected, the computer’s resources won’t be available to criminals all night and all day while you’re at work.
Model Letter for Lawyers Representing Defendants in RIAA Cases
I recently came across this letter in my mailbox. It was written by California attorney Merl Ledford III, of Visalia, California, to the RIAA's lawyer. Thought my readers might enjoy it:
From: Merl Ledford III, Esq. [mailto:firstname.lastname@example.org]
Sent: Tuesday, March 27, 2007 1:11 AM
To: Thomas McCarten Kerr, Esq
Cc: Barry Merchant
Subject: Sony BMG et al. v. Merchant Eastern Dist of Cal. Sacramento Branch 2:07-CV-00340-DFL-DAD
Dear Mr. Kerr
Thank you for your letter of March 23, 2007 received in my office today. I did not receive a copy of the letter by PDF although that method of delivery was shown on the letter.
Incorrect Venue and Emotional Distress
The lawsuit filed by your office and your letter arrive at a particularly inappropriate time in Barry and Cathy Merchant's life. Mrs. Merchant left my office after our first meeting to attend to ill father in Colorado. She and Barry Merchant left my office today to attend his funeral. You should advise your clients that they are facing a "thin skull plaintiff" either on a Rule 11 sanctions motion or (upon favorable termination) in a malicious prosecution action. The emotional distress inflicted by your clients' litigation -- filed in Sacramento rather than the Fresno Branch of the Eastern District Court where my clients' live in violation of the Rules of Court -- has been extreme.
Your client should carefully consider whether it has probable cause to proceed at this point. Mr. Merchant's hard drive is available for immediate, carefully supervised inspection by your client; a carbon copy of the drive has been made by technicians to insure that the evidence is well backed-up.
At the time of inspection, we will expect your clients to be prepared to dismiss all claims with prejudice. The pleadings may be e-filed from my office the same day. Although dismissal will not avoid your clients' exposure to attorneys' fees under the Copyright Act, it will certainly mitigate damages to Mr. and Mrs. Merchant and the possibility of escalating the issues by counter-claim on federal grounds that have been successfully pleaded in other states as well as on pendant California claims that have, thus far, tempered your clients' California zeal for litigating in this state.
Selling a Settlement and the AOL Subpoena
I have evidence of one letter dated June 5, 2005 from an attorney in your firm who is not licensed to practice law in California to Mr. Merchant claiming copyright infringement and demanding settlement negotiations. There is no other record of any kind.
Please provide copies of other correspondence that your clients claim was received by Mr. Merchant (whether by AOL or others) demanding settlement. Is it the same AOL letter that your clients' represented was sent by AOL to a woman with MS who lives in the New York borough of Queens. See Elektra v. Schwartz, Cent Dist NY, 1:06-cv-03533-DGT-RML, Document 21). When the letter was finally produced, after objection and delay, it became clear that its contents had been misrepresented to the Court. (How anyone from the former Gray Cary firm ever pull such a stunt stuns me; it used to be such a fine office.)
Also, please provide my office with copies of all telephone records of contacts your clients claim to have had with Mr. or Mrs. Merchant, and (with respect to your discussion of the AOL subpoena), proofs of service of Notice of Opportunity to Appear and Oppose RIAA's subpoena, a copy of the subpoena, and all of the parties' pleadings in support and opposition to issuance of the subpoena. In the event the AOL litigation named Doe defendants in violation of the Federal Rules of Civil Procedure and obtained any information regarding Mr. Merchant's long-standing without appropriate notice or in violation of California consumer privacy laws, I will request a preclusion order barring any use or derivative use of any information so obtained. See, e.g., Fonovisa v. Does 1-41, W.D. Texas, Austin Div. 04-CA-550 LY.
Independent Factual Investigation and Probable Cause to Sue: Background
Your office has a duty of good faith independent factual investigation and legal research sufficient to support a finding of probable cause to sue.
In Williams v. Coombs (1986) 179 Cal. App. 3d 626, the California Court of Appeal held that attorneys who participate in the filing or maintenance of litigation without probable cause are personally liable for malicious prosecution of a civil action.
In Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal. 3d 863, the California Supreme Court narrowed Williams, holding that a trial court may not delegate the ultimate determination of probable cause to the jury; it held that the question was one of law which must be resolved by the Court. Id. at 876. The Sheldon decision specifically disapproved of dicta from Tool Research & Engineering Corp. v. Henigson (1975) 46 Cal. App. 3d 675, at 683, that the attorney must have a "subjective belief" in the tenability of his or her client's claim in order to avoid malicious prosecution liability. Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal. 3d at 881. It nevertheless "strongly emphasized" that its conclusion "does not by any means suggest that an attorney who institutes an action which he does not believe is legally tenable is free from the risk of liability" because the lawyer's subjective belief "would clearly be relevant to the question of malice." Id. (emphasis supplied); see also Slater v. Durchfort (1995) 35 Cal. App. 4th 1718, 1724.
The Shelton Court also disapproved of Tool Research dicta suggesting that lack of probable cause may be proven "simply by showing that [the attorney] failed to perform reasonable legal research or factual investigation before filing a claim." Id. at 882. Rather, the Shelton Court held that such lack of diligence is relevant on the issue of malice. Id. The Shelton Court specifically disapproved of the Williams decision's apparent use of lack of investigation to prove lack of probable cause, although it fully endorsed the Williams analysis of the tort of malicious prosecution itself. Id. at 882-883 (footnote 9).
Although malicious prosecution was once characterized as a “disfavored action,” it has been somewhat expanded in recent years in apparent frustration with continued "shotgun" lawyering tactics by Plaintiff's counsel. In Crowley v. Katleman (1994) 8 Cal. 4th 666, the California Supreme Court upheld a malicious prosecution complaint where only five of six underlying causes of action were alleged to have been brought without probable cause. The court specifically rejected the defendant's claim that because one of the original causes of action was based on probable cause, the entire complaint was made immune from malicious prosecution liability. Id. at 694-695. Similarly, in Zamos v. Stroud (2004) 32 Cal.4th 1297b, the Court endorsed an action against an anti-SLAPP motion where a litigant’s counsel filed and maintained causes of action without probable cause.
Independent Factual Investigation and Probable Cause to Sue: Lack of Probable Cause
I know of no facts on which a good faith finding of probable cause by either your clients or your law firm could be based to support a claim for relief against Mr. Merchant.
It is well documented that your clients' reliance on MediaSecurity (an admitted "non-expert;" UMG v. Lidor, East Dist NY No. 1:05-cv-01095-DGT-RML) and its overall method of identifying P2P copyright infringers is wholly unreliable and inadequate. See, e.g., February 23, 2007, deposition of the RIAA's expert. http://www.ilrweb.com/viewILRPDF.asp...onT ranscript. See also expert witness statement of Prof. Pouwelse and Dr. Sips: http://www.ilrweb.com/viewILRPDF.asp filename=foundation_upcnederland_witnessdeclaration and amicus curiae brief of the ACLU, Public Citizen, Electronic Frontier Foundation, American Association of Law Libraries, and ACLU Foundation of Oklahoma, in Capitol v. Foster decrying the RIAA's "driftnet" litigation strategy: http://www.ilrweb.com/viewILRPDF.asp..._foster_amicus.
Such facts were known or reasonably should have been known to you and your law firm before suit against Mr. Merchant was filed. Thus, unless you and your office undertook additional independent investigation to identify Mr. Merchant as a person who actually has engaged in copyright infringement by illegal downloading, good faith basis for a Rule 11-compliant probable cause finding consistent with the Williams line of cases cited above simply did not exist to file the action. . . and does not exist now for it to be maintained.
Your clients apparently argue that Mr. Merchant's failure to respond to "settlement" demands justifies their lawsuit without other basis on which a finding of probable cause to sue could be claimed. You devoted the bulk of your letter advocating that position. As you know, however, that posture is repugnant to both Rule 408, Fed.Rul.Evid. and California Evidence Code §§ 1152 and 1154.
The Evidence Code sections are quite clear: settlement negotiations of all kinds may not be used to prove the validity of any claim or defense. Mr. Merchant has and had no more duty to respond to attempts to "sell" him one of your clients' boilerplate, non-negotiable $3750 settlements than he has to return cold calls from pushy life insurance salespeople. If your client (and your law firm?) are seeking probable cause shelter in a settlement negotiations house of straw (as suggested by your March 23 letter), all of you should consider the prevailing winds of the Evidence Code before making yourselves too comfortable. Straw will burn.
Your client take the position that my middle-aged, conservative clients should speculate regarding the identity of persons your clients' claim used their AOL account to download pornographic-lyric gangsta rap tracks as predicate to possible case resolution. In an age of Wintel-virus created bot-farms, spoofs, and easily cracked WEP encrypted wireless home networks (among other easy hacks), the only tech-savvy response to such a request is, "You've got to be kidding." The extensive press that has been generated over computer security (and the insecurity of Windows XP and its predecessors) underscores the complete absence of facts on which probable cause to sue my clients could be established and your clients' willingness (even insistence) that others be implicated in Big Music's speculative, "driftnet" litigation tactics. Sorry: Mr. Merchant cannot and will not expose himself to still more litigation by speculating.
It is not too late to correct your clients' (and your law firm's) mistakes.
Mr. and Mrs. Merchant's emotional condition puts a premium on immediate case resolution. Thus, although I generally do not make opening legitimate offers as defense counsel, the clients' non-monetary interests and their probability of recovering their fees and costs in this matter (at a minimum) suggest that a defense settlement offer would not be inappropriate. Therefore:
My clients are willing to accept dismissal of the litigation in exchange for
1. Payment of Mr. Merchant's reasonable fees and costs including retainer of $6,880.25. The payment represents good value considering what your own firm's billings will have been to date and use of those billing records as the loadstar rate for Mr. Merchant's award. See Capitol Record v. Foster, Western Dist. Okla No. 5:04-cv-1569-W, Docment 182 filed 3-15-07).
2. Apology on your firm's letterhead by your supervising partner for inappropriately filing and maintaining an action against Mr. Merchant without probable cause and for the emotional hardship that such litigation caused; and
3. Execution of a mutual general release of all claims in my office's usual form. The RIAA form of release I have seen will not be used. It is my practice in these kinds of cases to require that the plaintiffs indemnity my clients against claims by third parties as part of my general release language. (E.g., your clients sue a site for posting guitar tabs to copyrighted music; my client visits the site, read the tabs, plays them on his guitar, and get sued by way of cross-claim by the guitar tab site). My form of release also anticipates class action litigation that is in the works at several SoCal class-action offices on RICO, Unfair Practices Act (Bus & Prof. Code §§17200 et seq.) and other grounds against RIAA, MediaSentry, and all of your named clients in the Merchant action. My clients will agree to opt out of any such litigation; the release language is tailored to your clients are not giving up any defenses they might otherwise have to the class claims.
4. Confidentiality: It is my general practice to disfavor confidential settlements. Under the circumstances, and so long as your clients are prompt and candid in dealing with their mistaken, misplaced lawsuit, I would consider a reasonable confidentiality provision. Again, quick response, full payment, and immediate dismissal will allow confidentiality as an option.
The authorized settlement offer expressed in the preceding paragraphs of this email (and confirmed in staff-proofed letter format to be sent by fax and US Mail tomorrow; sorry for typos that are an unfortunate part of any quick-response email) may be accepted by signing a copy of this email and returning it to my office by fax no later than the close of business on Friday, March 30, 2007. It is intended to be presented to your clients as written in complete context of this email (and text-corrected letter to follow) in accordance with Rule 3-510, CRPC. It is the best offer that will be made in this litigation based on the facts and circumstances as they are known at this time. Substantial discovery, investigation, and exchange of information remains that could substantially alter the settlement position of the parties to the betterment of either side in ways that cannot now be responsibly predicted. The case settlement value will, however, trend upward the longer I have to work on it. And the emotional distress damages for willfully filing and thereafter maintaining claims for relief without probable cause will only increase as the matter drags on.
The offer is made pursuant to California Civil Code section 47 and in accordance with Rule 408, Fed.Rul.Evid. and California Evidence Code §§ 1152 and 1154 for the sole purpose of settling doubtful and disputed claims by and between the parties. Neither the fact that the offer was made, nor its acceptance, nor any statement made in the course of settlement negotiations shall be admissible to prove the strength or weakness of any claim, counter- or cross-claim, or defense raised or that could be raised by or between the parties regarding the subject matter of their dispute.
Your reminder about preservation of evidence, of course, cuts both ways. Since my client's hard drive completely exculpates him, functionally compels dismissal, and opens the door to substantial recovery, he is doing everything in his power to preserve and protect his evidence. In our part of the world, that is a mid-six to low seven figure piece of computer gear.
Procedurally, we need to address how best to move the case to the Fresno Branch so you can enjoy our new Courthouse and avoid Judge Levi's wrath for filing in the wrong court. (Senior Judge Bob Coyle was responsible for building both our new facility and the District Court building in Sacramento; and, although neither building is as grand as Judge Manny Real's showpiece in Santa Ana, the Fresno Court is not only nicer than Sacramento but also one of the top three court facilities ever I've enjoyed practicing in.) Handling the issue by stipulation and order would probably be the most simple way to move the file. We do that routinely in PACA litigation although I am open to suggestions if you prefer to handle it differently
Once the case is moved to the Fresno Branch, your clients should consider cleaning up their complaint. The FRCP and collateral estoppel from other RIAA law and motion matters require much greater specificity in pleading than your clients provided in the complaint I reviewed. Dates of the alleged downloads, which plaintiff (or affiliate) holds which copyright to which track, etc. must be specifically pleaded and proven. You are as familiar as I am with the results in other cases where RIAA's general allegations have been challenged. Let's get over that hurdle without unnecessary law and motion practice.
We should also discuss how quickly you can get your tech people here to do their hard drive inspection. Again, I would be happy to send the airplane to either Butler at SFO or Kaiser at Oakland for roundtrip convenience of you and your clients' tech people. (Oakland is usually faster for me from Civic Center; Kaiser has a shuttle from Bart that beats SFO by about 20 minutes each way most of the time.)
Because your techs will want to do a full data recovery scan to pick up any "negatives" left behind from erased files, I suggest we create a mirror image on an unformatted hard drive purchased commercially in everyone's presence for that purpose. Other RIAA cases have handled the issue by Stipulation and Order although hopefully we can agree on the procedure without that sort of formality.
Once your tech people have confirmed that none of the titles set forth in your clients' complaint (or any other infringements) are or ever were on the drive, you will have irrefutable confirmation of the information provided to you by my office. From there, it should be a short trip to dismissal even if it means getting our clients to mediate Mr. Merchant's positive claims in the absence of an appropriate settlement.
Concluding Remarks and
Thank you for your continued professional courtesy. It is no fun becoming a litigation target as the result of your clients' widely-discredited tactics. Although I have a client to represent, I will do everything I can to keep that aspect of the case at the lowest level possible. You have a hard-nosed client to represent too; and I completely respect that.
Merl Ledford III
An Email Transmission of
LEDFORD LAW CORPORATION
805 West Oak Avenue
Visalia CA 93291-6033
Vox 559.627.2710/Fax 559.627.0717
Web Site: LedfordLaw.net
Editor’s note: Upon receipt of this letter attorneys for the RIAA ceased their action against Mr. Merchant. – Jack
Until next week,
Current Week In Review
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Jack Spratts' Week In Review is published every Friday. Submit letters, articles and press releases in plain text English to jackspratts (at) lycos (dot) com. Submission deadlines are Thursdays @ 1400 UTC. Please include contact info. Questions or comments? Call 213-814-0165, country code U.S.. The right to publish all remarks is reserved.
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