Enough Already with the Crocodile Tears

Posted by Donna Wentworth

Ed Felten today asks Hollywood to quit shedding crocodile tears over profits "lost" to Internet-enabled piracy -- at least while it continues to make more money than ever, while denying movie stars (the "artist") a more sizable cut:

[Surging profits] undercut the industry's rent-seeking in Washington, which relies on a narrative in which technology destroys the industry's revenue stream. If the technology problem is really as bad as the industry says, then it ought to show up in the sales numbers. [...]

It may turn out that the net effect of technology on the industry is neutral, or even positive. If so, then no expansion of copyright law is needed, and a mild contraction may even be in order. Remember, the goal of copyright is not to maximize the profits of any one industry, but to foster creativity by regulating just enough to ensure an adequate incentive to create.

For more on this very topic, check out the comments [PDF] EFF filed with the FCC earlier this month. It provides a number of instances to demonstrate that, despite the shrill rhetoric to the contrary, the entertainment industry's sky is far from falling.

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On Copyright Law and Myopia

Posted by Donna Wentworth

EFF's own Seth Schoen has a nice exercise in reductio ad absurdum, pointing out that the only argument the Business Software Alliance (BSA) makes in its recent legislative agenda to refute the notion that copying is beneficial to society is that restricting copying will make the software industry larger and more profitable. Says Seth, "The idea that helping a business sector get larger and richer is a primary duty of legislators or of the public is so peculiar that it bears trying to come up with a few parallel arguments."

For example, BSA asserts:

Some have attempted to paint copyright piracy as a victimless crime, arguing that "if I make a copy of a computer program, you still get to keep your copy, and we are both better off." This is hardly the case.

Reducing piracy offers direct benefits. The equation is a basic one: the lower the piracy rate, the larger the IT sector and the greater the benefits.

...so Seth suggests we might also argue:

Some have attempted to paint conjugal sexual intimacy as a victimless crime, arguing that "if you and I have intimate relations, we both derive pleasure and a sense of togetherness, and we are both better off." This is hardly the case.

Reducing sex among committed partners offers direct benefits. The equation is a basic one: the lower the intimacy rate among committed partners, the larger the prostitution sector, and the greater the benefits.

BSA's logic is not unlike that of the National Association of Broadcasters (NAB). As Fred points out below in Kill P2P to Save TV?, its brief in MGM v. Grokster suggests that the northern star for copyright law ought to be whether or not it keeps a single group of businesses -- broadcasters -- big and rich. Or more specifically, that one particular business model (adverts) for one particular industry be protected.

Of course, BSA and NAB are doing no more than using the best arguments they have to further their own self interest. But it's important to recognize the arguments for what they are: myopic. You can argue all you want that because intellectual property protection is good, any form that props up your particular business model is also good -- but that doesn't make it so.

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(HD) Myth Becomes Reality TV

Posted by Wendy Seltzer

An intrepid group gathered at EFF Saturday to make the most of the window before the broadcast flag mandate by building our own HD PVRs.

Using open source MythTV and the pcHDTV HD-3000, we assembled personal video recorders to rival TiVo -- without the restrictions or dongles. As of July 1, the broadcast flag mandate will outlaw manufacture of the open hardware we used. See the photos and read the cookbook to get started building your own.

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In a Nutshell

Posted by Donna Wentworth

CNET Editor Charles Cooper: "In its zeal to put the likes of Grokster and StreamCast Networks out of business, the entertainment industry's challenge might lead to a change in the law that renders potentially important technologies stillborn."

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Kill P2P to Save TV?

Posted by Fred von Lohmann

Among the many briefs supporting Hollywood and the music industry in MGM v. Grokster is one from the National Association of Broadcasters. The NAB represents broadcasters (not cable or satellite-casters, just the ones with free FCC licenses, granted in the name of the "public interest").

Its take on the case? P2P must be banned, lest it erode the profits of broadcasters:

Continued deployment of software that facilitates P2P or similar systems that distribute audio and video programming without regard to the rights of copyright owners will consequently impair the ability of broadcast stations to garner the advertising revenue needed for their operations....

Funny, we recently heard the same thing from certain broadcasters in the fight over the "broadcast flag" regulations -- digital television technology must be locked down, all in the name of protecting ad-supported TV. In fact, they went so far as to threaten to stop broadcasting digital TV unless they got their way.

Too bad the NAB broadcasters didn't make that puerile threat in their brief: "Unless you ban P2P, we'll stop broadcasting." Because if they had, then we could have called their bluff, taken away their free spectrum, and given it to someone who is willing to play. I bet we'd find lots of eager, entrepreneurial takers (like Mark Cuban, at HDNet).

Oh, and did I mention that 85% of Americans now pay for their television programming? And that some of the most innovative programming to hit TV is produced by HBO, which manages without ads? Makes you wonder whether it's a good idea for the Supreme Court to start regulating Internet technologies to protect one, and only one, business model.

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What Can't I Do Today?

Posted by Donna Wentworth

A Slashdotter, commenting on Endangered Gizmos and the growing threat to harmless "Me2Me" uses:

At this point, I've accepted that there are things I do that may someday be considered a crime. ...:

• Record TV shows from my DirecTV reciever that I pay a monthly subscription fee for into my computer using a Hauppauge PVR250 card for archival purposes (to show friends and family when they come over)
• Rip all CDs that I buy to the infinitely more convenient Ogg Vorbis format so that I can listen to my music anywhere
• Stream any audio or video from my house to wherever I happen to be using a VPN connection and broadbad. This means I can listen to my music collection, watch my DVDs or even DirecTV as long as I have an internet connection
• Build custom digital media devices that don't have the limitations that commercial products do

...It's a wonder it's not illegal to use a hammer, nails, screwdriver, drywall, plaster and screws to build or modify your house any way you want.

Feeling frustrated about something you can't do? Let us know and we may include your experience in our Endangered Gizmos educational campaign.

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Bloggers As Journalists: Why We Fight Apple?s Subpoenas

Posted by Kurt Opsahl

James Madison understood that "a popular government without popular information or the means of acquiring it is but a prologue to a farce or tragedy or perhaps both." Legal protections for media sources and unpublished information are critical means for journalists of all stripes to acquire information and communicate it to the public. Imagine if "Deep Throat," the informant critical to Woodward and Bernstein's investigation of the 1972 Watergate burglary, knew that his identity could be obtained through legal process. His career, and perhaps his life, would have been in serious jeopardy, and a cautious individual would have kept silent.

Fearful of the devastating effect compelled disclosure could have on the free flow of information -- the lifeblood of a functioning democracy -- the judiciary has understood the vital connection between the confidentiality of sources and the freedom of the press, establishing a privilege under the First Amendment. Some states have gone further, establishing reporter's shields in their statutes, or, as here in California, enshrining the shield in the state constitution.

Because today's online journalists frequently depend on confidential sources to gather material, their ability to promise confidentiality is essential to maintaining the strength of independent media. As the courts have confirmed, what makes journalism journalism is not the format but the content. Where news is gathered for dissemination to the public, it is journalism -- regardless of whether it is printed on paper or distributed through the Internet.

Online journalism, whether in the form of blogs, email newsletters, or websites, is a growing part of our national discourse. The democratization of media inherent in the Internet allows any individual to reach out to a vast audience, without the constraints of traditional media. Blogs gain in importance and readership by the content and currency of their news, not their affiliations with the media of old. Indeed, we've seen numerous cases where blogs break the news first, and traditional media follow. Bloggers hammered on the Trent Lott story until mainstream media was forced to pick it up again. Three amateur journalists at the Powerline.com blog were primarily responsible for discrediting the documents used in CBS's rush-to-air story on President George Bush's National Guard service. And the list goes on.

If Apple's subpoenas to Apple Insider, PowerPage and Think Secret are allowed to proceed and the Apple news sites EFF is representing are forced to disclose the confidences gained by their reporters, potential confidential sources will be deterred from providing information to the online media, and the public will lose a vital outlet for independent news, analysis, and commentary. We can't let that happen.

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Lasica Burns the Broadcast Flag

Posted by Donna Wentworth

J.D. Lasica has written a scorching Reason article criticizing Michael Powell's "invisible legacy" -- the broadcast flag technology mandate.

Snippet (emphasis and hyperlink, mine):

In telecom policy, Powell lived up to his deregulation rhetoric. But there's another legacy Powell is bequeathing us, one that has been scarcely mentioned in the press: the FCC as Federal Computer Commission...The larger problem is that Powell and the FCC are treating us as consumers rather than users. The federal agency has essentially endorsed Hollywood's line that digital televisions, personal video recorders, DVD recorders, and computers are no more than playback devices for Big Entertainment content rather than intelligent machines that can store, alter, remix and share digital bits.

Spot on.

EFF is part of a legal challenge to the FCC's authority to impose the broadcast flag tech mandate; check out our case archive to learn more.

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Once More Into the Betamax Breach

Posted by Fred von Lohmann

EFF has represented StreamCast from the beginning of the MGM v. Grokster case. Why? Because from the beginning, this case has been about the entertainment industry's effort to re-fight its war against the Betamax VCR.

The stakes are high: the legal rules laid out in the 1984 Supreme Court ruling in the Betamax case have been the main shield protecting innovative technologies from copyright "strike suits." For the last 20 years, whether you made photocopiers, cassette recorders, personal computers, CD burners, Cisco routers, or the iPod, you've relied on the Betamax precedent.

The brief [PDF] filed by Hollywood and the major labels yesterday makes it clear that MGM v. Grokster could change all that.

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EFF Announces Endangered Gizmos List

Posted by Donna Wentworth

EFF today unveiled a new campaign to enlist your help in the fight to protect the environment for innovation:

FCC Chairman Michael Powell calls TiVo "God's machine," and its devotees have been known to declare, "You can take my TiVo when you pry it from my cold, dead fingers!" But suppose none of us had ever been given the opportunity to use or own a TiVo -- or, for that matter, an iPod? Suppose instead that Hollywood and the record companies hunted down, hobbled, or killed these innovative gizmos in infancy or adolescence, to ensure that they wouldn't grow up to threaten the status quo?

That's the strategy the entertainment industry is using to control the next generation of TiVos and iPods. Its arsenal includes government-backed technology mandates, lawsuits, international treaties, and behind-the-scenes negotiations in seemingly obscure technology standards groups. The result is a world in which, increasingly, only industry-approved devices and technologies are "allowed" to survive in the marketplace.

This is bad news for innovation and free competition, but it also threatens a wide range of activities the entertainment conglomerates have no use for -- everything from making educational "fair" use of TV or movie clips for a classroom presentation, to creating your own Daily Show-style video to make a political statement, to simply copying an MP3 file to a second device so you can take your music with you.

Rather than sit back and watch as promising new technologies are picked off one-by-one, EFF has created the Endangered Gizmos List to help you defend fair use and preserve the environment for innovation.

For more on these themes, check out:

• Why Hasn't TiVo Improved? by Ed Felten @ Freedom to Tinker;
• Matt Haughey's response @ PVR Blog;
• Debunking a DRM Press Release by Cory @ BoingBoing; and, finally,
• DVD CCA Is an Innovation-Stifling Cartel, by Julie Jacobson at CEPro Magazine.

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