DeepLinks Archives, June 2004
Noteworthy news from around the internet.
The Lawsuits Will Continue Until Morale Improves
Posted by Donna WentworthResponding to a new FindLaw survey suggesting that most people think the recording industry has gone too far in its litigation campaign against music fans, RIAA spokesman Jonathan Lamy told the press that it will continue "as long as necessary." Meanwhile, attorney and law professor Sharon Sandeen, quoted in the same piece, observed that "People say, 'If I paid for it, I must own it,' but they don't."
The first quote sounds like the common humorous office memo found in Xerox rooms the planet over: "The beatings will continue until morale improves." The second expresses well what the recording industry evidently hopes to acheive with these beatings -- people so scared of lawsuits, they'll purchase music that they can't even own in the traditional sense.
Sure, you can buy a song at iTunes, but digital rights management dictates what you can do with it. The newest version of iTunes lets you do less with your legitimately purchased music than the last one, and the company has reserved the right to make further changes to its DRM. Under these circumstances, "owning" the music you paid full price for is like a box of chocolates: you never know what you're going to get.
Ultimately, competing with free means offering fans a compelling product at a reasonable price point -- something the record labels have so far failed to do. There's no credible evidence to suggest that the lawsuits are "improving morale" -- that is, driving music fans en masse to the legitimate services. Why not offer a blanket license that would allow P2P users to pay $5/month for file sharing? What better incentive could there be to "go legit" than knowing you can legally access all-you-can-eat, unencumbered music?
P2P Solutions Should Pay Artists, Not Lawyers
Posted by Donna WentworthAmid the uproar last week over the introduction of the Induce Act, the Senate quietly passed the PIRATE Act -- legislation that would force taxpayers to foot the bill for the recording industry's misguided war on peer-to-peer file sharing.
Essentially unchanged from the version released in March, the PIRATE Act would create a new civil penalty for criminal copyright infringement: criminal restitution. It lowers the burden of proof by empowering the Department of Justice to "convict" on a preponderance of evidence rather than beyond reasonable doubt. Copyright owners, meanwhile, would remain free to bring their own civil actions against people already prosecuted by the government.
Translation? Under the PIRATE Act, the government would be encouraged to pursue the same kinds of fruitless lawsuits that the RIAA has been bringing against music fans.
The good news is that the PIRATE Act doesn't have a House companion. The bad news that a similar bill, the Piracy Deterrence and Education Act, or PDEA, is all marked up and ready to go.
As we note over at the Action Center, the PDEA would create the first criminal copyright penalties for people who aren't engaged in willful criminal conduct. Under the law's murky "negligence" standard, a person with 1,000 legally obtained songs could be sent to jail for three years if she fails to lock them up tight enough.
Rather use our tax dollars to throw federal criminal investigators at the P2P problem, Congress should consider solutions that pay artists, not lawyers. Copyright holders already have an astonishing array of legal tools for fighting infringement. It's time to stop adding new weapons to the arsenal and find new ways to let the music pay.
Court Rules Bookseller Can Spy on Email
Posted by Donna WentworthThe U.S. Court of Appeals for the First Circuit delivered (PDF) some very bad news for online privacy today. Ruling in U.S. v. Councilman, the court held that it was not a violation of criminal wiretap laws for an email service provider to monitor the content of users' incoming messages without their knowledge or consent. The defendant, the seller of rare and used books who offered his customers email accounts, set up a system whereby he received a copy of any email messages they received from the competition -- Amazon.com. As the court itself admitted, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."
"By interpreting the Wiretap Act's privacy protections very narrowly, this court has effectively given Internet communications providers free rein to invade the privacy of their users for any reason and at any time," says our own Kevin Bankston. "This decision makes clear that the law has failed to adapt to the realities of Internet communications and must be updated to protect online privacy."
Ruling (PDF); Breaking News item.
More on What
Posted by Donna WentworthA pair of NYT editorials explore alternatives to mass lawsuits against peer-to-peer filesharers and harmful legislation like the Induce Act:
Don't Beat Them, Join Them
By WILLIAM FISHER
The record industry's response to file sharing -- trying to block the technology altogether -- will generate the worst of all possible results.
..................
Share the Music
By KEMBREW McLEOD
A blanket license model, like that legalizing the use of copyrighted material by cable television, can point us to a future system that might work for file sharing.
If Not Induce, then What?
Posted by Fred von LohmannWhile we at EFF have been critical of the overbreadth of the Induce Act, some have asked "what would you suggest that would target P2P while leaving things like the iPod intact?"
Answer: It's not a question of more laws, it's a question of new business models.
- No amount of law (at least short of blowing up computers) is going to eliminate P2P file-sharing software. After all, legal victories against Napster, Scour, Aimster, and Audiogalaxy just spawned more, better, offshore alternatives. The Induce Act isn't going to scare P2P developers in the West Bank. It will be legitimate American innovators, like Apple, who pay the price for overbroad laws like the Induce Act.
- History teaches that new business models work better than more laws when trying to reconcile copyright with new technologies. Compare the response to the VCR (let the free market find new business models) with the response to DAT recorders (pass a law that strangled the technology).
- The music industry could, tomorrow, solve this problem by themselves, without more laws. As explained in our paper, A Better Way Forward, the music business could create one or more collecting societies and start giving blanket licenses to P2P users in exchange for low monthly payments, transforming a threat into an opportunity. Worked when ASCAP did it for broadcast radio.
So, if Congress wanted to do some good here, it should be considering ways to pave the path toward a collective licensing solution.
Taking the Induce Act to its Illogical Conclusion
Posted by Donna WentworthWhat would the world look like under Senator Orrin Hatch's (R-UT) Inducing Infringements of Copyright Act (PDF)? To give you a glimpse, we drafted a mock legal complaint (PDF) against Apple for "inducing" copyright infringement by manufacturing the iPod, CNET for reviewing the iPod, and Toshiba for providing hard drives for the iPod.
As we note in Prelude to a Fake Complaint, filing a lawsuit under the so-called Induce Act is like dropping a litigation bomb on any company that gives users products that have even the slightest potential to assist in copyright infringement. If this bill had been law in 1984, there would be no VCR. If this bill had been law in 1995, there would be no CD burners. If this bill had been law in 2000, there would be no iPod. If this bill becomes law in 2004, there's no telling what we'll be missing.
While the mock complaint is fake, the threat that this bill poses is real. If you care about innovation -- not to mention free speech -- take a few minutes to visit EFF's Action Center and let your Senators know that the Induce Act is a very bad idea.
Cory @ MS on DRM - As You Like It
Posted by Donna WentworthAnil Dash and Matt Haughey took advantage of the ability to add to/improve upon public domain materials by adding linky goodness and improved readability to Cory Doctorow's much-discussed and most excellent speech on DRM @ Microsoft. Then someone else took the next logical step and created a Wiki.
Very cool. Thanks, guys.
Update: Via Todd Bishop at the Microsoft blog, Cory's speech as an audio file, read by none other than Jason Kottke.
How Doesn't DRM Work?
Posted by Donna WentworthOur own Cory Doctorow counts the ways in a recent speech at Microsoft.
Here, a snippet; below, the whole shebang:
Here's what I'm here to convince you of:
1. That DRM systems don't work
2. That DRM systems are bad for society
3. That DRM systems are bad for business
4. That DRM systems are bad for artists
5. That DRM is a bad business-move for MSFT
It's a big brief, this talk. Microsoft has sunk a lot of capital into DRM systems, and spent a lot of time sending folks like Martha and Brian and Peter around to various smoke-filled rooms to make sure that Microsoft DRM finds a hospitable home in the future world. Companies like Microsoft steer like old Buicks, and this issue has a lot of forward momentum that will be hard to soak up without driving the engine block back into the driver's compartment. At best I think that Microsoft might convert some of that momentum on DRM into angular momentum, and in so doing, save all our asses.
Let's dive into it.
INDUCE Act = Hollings II?
Posted by Fred von LohmannRumor has it that Sen. Orrin Hatch (R-UT) will be introducing a bill tomorrow that would add a new Section 501(g) to the Copyright Act granting copyright owners a cause of action against those who "induce" copyright infringement (cf. patent law). This bill, dubbed the INDUCE Act, would apparently also reach those who "counsel" infringers.
Even a moment's reflection should make the danger to innovators clear -- you now have to worry not just about contributory and vicarious liability, but an entirely new form of liability for building tools that might be misused. It will be interesting to see whether the bill expressly precludes any Betamax-type defense. This may also pose First Amendment problems, to the extent a journalist or website publisher might be liable for simply posting information about where infringement tools might be found or how to use them.
It's the Hollings Bill by other means -- an over-reaching new form of indirect liability that will force technology companies of all kinds to "ask permission" before innovating for fear of ruinous litigation if they don't.
And so another front in the copyright wars opens, with the aggressors waving the bloody flag of file sharing, but really aiming at a much bigger target. Stay tuned.
UPDATE: Prof. Susan Crawford has helpfully posted draft text of the bill.
RIAA Gunning for Home Taping (Again)
Posted by Fred von LohmannThanks to the smart reporting of JD Lasica, you may know that the RIAA is asking the FCC to lock down digital radio with content protection (echoes of the "broadcast flag" for digital television). EFF, joined by the Brennan Center, filed its comments today explaining why this is a bad, bad idea.
Digital radio is just emerging in most U.S. markets (this is the AM/FM sideband variety, not Sirius or XM satellite radio). Based on its earlier letters to the FCC and CEA, it appears that the RIAA is worried about the development of TiVo for digital radio -- the ability to listen to your radio, your way, on your terms. How about a "wishlist" that records only your favorite artists (assuming they get airplay on commercial radio these days)? Cool idea, right? Not according to the RIAA, which has been waging a war on home taping for decades.
The RIAA seems to have missed the fact that recording from the radio is perfectly and clearly legal.
