Panzer on Point

The Internet Turns 40

2009-10-23T10:42:00.001-05:00

Oliver Burkeman of The Guardian has written a great article looking forward to next week's 40th birthday of the Internet. It really needs no commentary. Just give it a look for an interesting read, including the following "wow" realization:

Unless you are 15 years old or younger, you have lived through the dotcom bubble and bust, the birth of Friends Reunited and Craigslist and eBay and Facebook and Twitter, blogging, the browser wars, Google Earth, filesharing controversies, the transformation of the record industry, political campaigning, activism and campaigning, the media, publishing, consumer banking, the pornography industry, travel agencies, dating and retail; and unless you're a specialist, you've probably only been following the most attention-grabbing developments. Here's one of countless statistics that are liable to induce feelings akin to vertigo: on New Year's Day 1994 – only yesterday, in other words – there were an estimated 623 websites. In total. On the whole internet.

The Discerning Downloader

2009-10-19T11:29:00.003-05:00

Those who have read this blog before know that I strongly believe that the Big Content industries' major weakness in the fight against file sharing is that they lag behind consumers in their exploration and exploitation of new technologies. A recent survey from TorrentFreak seems to confirm that.

The survey shows that uTorrent has made massive gains in market share among file sharers (now enjoying over 60% share), primarily at the expense of Vuze, the second most popular Bit Torrent client (now with about 14%). So, what, you ask, does that have to do with the tech savvy-ness of file sharers? Well, one of the main draws of uTorrent is its extremely small footprint, consuming as little as 14 MB of RAM while downloading. Vuze, the former number one Bit Torrent client, by comparison, requires approximately 80 MB of RAM. The huge uptick in market share for uTorrent tells us that either: 1) the average Bit Torrent user now understands that minimal RAM consumption allows them to download files "in the background" while performing other tasks, without experiencing degradation in system performance; 2) the average Bit Torrent user is easily influenced by word of mouth and uses uTorrent because someone who understands #1 told them to; or 3) some combination of #1 and #2.

Whether by true understanding or by influence, the file sharing legions are coming to embrace not only free content, but also the most efficient means of obtaining that content. This growth of efficient client usage will permit more users to remain online while they perform other computer-based tasks, both allowing them to download more and, likely of more concern to the industries, make greater numbers of files available for download by others.

This is yet another sign that the real issue facing Big Content is the gap between their understanding and usage of technology and that of their (former) consumers. Until that gap is spanned, the downward slide of content sales will continue.

Japanese Court's Reversal in File-Sharing Case is a Clear Win for Software Innovators

2009-10-09T10:40:00.003-05:00

A Japanese appeals court yesterday reversed a lower court ruling against file-sharing software developer Isamu Kaneko related to his "Winny" program. This ruling is a departure from recent rulings in both the US and Sweden, and clearly demonstrates that Japan's courts have an eye toward fostering innovation rather than protecting the status quo on behalf of content owners.

The criminal proceeding against Kaneko turned on the issue of whether the Winny program "encouraged" file-sharing and copyright infringement. This approach is directly analogous to the idea of contributory infringement here in the U.S. The doctrine of contributory infringement basically goes like this: If you know that your actions/products/etc. are used for infringing activity and you intentionally induce or encourage people to participate in the activity or use the product, you are also liable for any infringement that they commit. The case law in this area has been developing for over two decades, but was codified in 2005 by the Supreme Court in the landmark MGM v. Grokster case. However, it is the 1984 Sony Betamax case that provides an escape. In that case, the Supreme Court said that a product is not designed for contributory infringement as long as it has significant non-infringing uses. Yesterday's ruling from the Japanese high court clearly recognizes the goal of Sony, which is the continued encouragement of technological innovation.

Worldwide, the big content companies have seemed to fear this encouragement of technological innovation in the area of file-sharing. Rather, they have attempted to place civil and criminal liability upon file sharers, software developers and tracking site hosts in order to cut off the supply of unauthorized copies of music, movies, software, etc. Big Content has seemingly ignored the tack whereby they would become participants in the technological foot race and lead the next iteration of development in order to protect their own content without resort to legislation. The reversal of Kaneko's conviction demonstrates to Japanese content providers that the courts of that country are not going to be as cooperative as some other courts in policing file-sharing related copyright infringement if it means stifling innovation. This ruling is a clear win for software developers in that country and should be a strong signal to Big Content that - at least in Japan - their next move must come on the technological front rather than the legislative or judicial approaches employed to this point.

A Generation Lost: How the Music Industry Lost 30 Years or So of Income

2009-08-10T10:34:00.008-05:00

A research study released today in Great Britain shows that, despite knowing that downloading music is illegal, young people 14-24 continue to download music by whatever technological means available (see original story below). These studies seem to pop up monthly, while the lobbyists and paid-for politicians on either side of the Atlantic try to legislatively put their fingers in the dike. The content industries need to realize that they have complacently fallen so far behind technologically that they simply cannot, and will not, recover their old business model for at least a generation.

For decades, consumers happily rushed to stores to buy the latest releases from their favorite bands. From Elvis to Bill Haley, Buddy Holly to the Rolling Stones to Nirvana to Blink-182, people wanted their tunes and they were willing to pay for them. The portable record player gave way to the car 8-track player. Enter the Walkman, and then the Discman. Then, in the late 1990's some inventive and intelligent folks outside the music industry realized a vast improvement in the solution to the music portability puzzle that had so clearly intrigued people over the previous generations. Along came MPEG Layer 3 technology - you know it as MP3 - and what was a stroll became a sprint en masse.

First players like the Rio took slow steps into market acceptance. Then the Yepp player did the same. More tech savvy citizens got into the mix and along came Napster. The sprint was now a rushing stream. Up went Internet bandwidth, along came Kazaa and the iPod...and then the stream became a torrent - Bit Torrent to be exact. Over the course of less than a decade, the content industries stood by, heads in the sand while technology created by individuals and corporations alike realized all of the ease-of-distribution dreams that the content industries had always dreamed of. Every person in the world could quickly receive a copy of what they had long been willing to pay for. They could take that copy with them anywhere they went - and they wanted to do so. And the content industries stood idly by, deer in headlights, heads in the clouds...the euphemisms go on and on.

Had the industry recognized the changing tide, they would have been able to harness the wave and ride it into an explosion of success and far greater distribution. But instead they turned their backs one year, fought with all their might the next, and shrugged their shoulders the next. What was left? An entire generation who was raised on free, easily distributed, easily duplicated music and movies. Music and movies that these consumers still want.

The content industries will not recover these consumers as paying customers. It simply won't happen. Well, unless they can come up with a technological methodology to put the genie back in the bottle. Suing customers has proven costly and ineffective. Occasional talk of "educational endeavors" to apprise young people of the copyright laws have gone nowhere. And legislation will only breed more cynicism, cost more money, and lead right back to suing or pushing for prosecution of customers.

The only answer is to use all of that money and might to develop new technologies that once again make the industries' products ones that the customer must buy if he or she wants to obtain it. Until then, customers - teens and twenty-somethings - who have grown up with free music and movies at their fingertips will have no reason to change their thinking. Try telling people that we're now going to drive on the left side of the road or that they will have to use coin-operated telephones at home. Simply put, it just doesn't compute. And for a whole generation who got loose from the gates while the industry snoozed, music will always be free and the old way simply won't make sense.

The content industries can regain their paying market. It just isn't going to happen in this generation unless they start being as smart as those who have slayed their previous model and develop another model that proves that paying for the music consumers love is a necessity, not an option.

Link: Original Times Online Story: Young people ignoring attempts to combat illegal music downloading

How Do I Register Copyrights For My Band's CD (Part 3 of 3)

2009-08-06T14:50:00.005-05:00

Alright, so if you've gotten to this point, you've already read Parts 1 and Part 2 and you just need to register the copyright in an underlying song that was written by people different from those who played on the recording. If any of this is not the case for you, or you're confused. I STRONGLY suggest you go back and start at Part 1.

Let's jump right into registering the songs you wrote. Again, this is only necessary where the writers of the songs are different from the people who played on the recordings that we registered in Part 2.

Assuming you are at the shopping cart and just registered the Sound Recordings, click "Add More Services."

This process is almost identical to what you did in Part 2.
1) Click "Register a New Claim."
2) Click "Start Registration."
3) Select "Work of the Performing Arts" and click "Next."
4) Enter the album title as "Title of Work Being Registered" and each of the song titles as "Contents Title." Click "Next."
5) Just as we did before, specify whether you have published the songs already.

6) You are now on the Authors page. Here you want to enter only the people who wrote the song - not other bandmates or studio musicians or anyone else. Only people who wrote the songs. When you hit "Save" for each person, it will ask you to specify their contribution (e.g., music, lyrics, etc.). Select the appropriate things for each person and hit save. Repeat this until you've listed all the writers, then click "Next."

7) Specify the Claimants. It should match the writers unless there was a written agreement otherwise, or if someone's contribution was a work for hire.

8) Specify if there are any parts of your song that were pre-existing. Did you quote someone extensively? Did you specify the use of a clip or sample? Most likely you're going to skip this by clicking "Next."

9) Fill in the Rights & Permissions contact.
10) Fill in the Correspondent in case the Copyright Office needs to contact you.
11) Fill in the name and address for the certificate.
12) Special handling - you most likely want to skip this. If you think any of them applies to you, you should probably be chatting with a lawyer at this point.
13) Certify your submission.
14) Review it and add it to the cart.

Now you've got your Sound Recording and you Work of the Performing Arts applications filled out and added to your shopping cart. Hit "Checkout," pay your money, and voila! You should be hearing from the Copyright Office.

Disclaimer: It's very important that you do this right. While I've attempted to help you through the copyright registration process, this is not legal advice. If you have ANY questions, you need to contact a lawyer and get them to help you complete the process properly.

How Do I Register Copyrights for my Band's CD (Part 2)

2009-08-06T12:37:00.012-05:00

In Part 1 of this article, I explained a whole bunch of preliminary matters related to copyright registration for your band's songs or albums. Those preliminary matters are pretty important stuff. If you haven't read Part 1, you definitely should start there and then come back here to get started.

Now let's jump right into registering our copyrights.

Online Registration
You should take advantage of online registration for several reasons. First, it's convenient. You don't have to mail anything and you can simply upload your music, type in your info, pay by credit card and be done. Second, there is a reduced filing fee, which right now is $35.

1) Go to the Copyright Office's website at www.copyright.gov/eco/.

2) You'll see a brief description of the "eCO Online System." Below that, there's a link that says "Login to eCo." Click the "Electronic Copyright Office" icon next to that.

3) Click the "Continue to eCO" button.

4) At this point you're asked for login information. If you haven't registered...well, register. If you already have an account, log on.

5) You now arrive at your Open Cases screen.

Open a New Case
1) On the left side menu, under the heading "Copyright Services" click "Register a New Claim." On the next screen, click the gray box that says "Start Registration."

2) Let's start by registering the Sound Recording. So, in the "Type of Work" dropdown list, select Sound Recording. At the top, click the "Next" button.

3) Now, here's where we need to start being smart so we save ourselves all that money I talked about. Because we're registering a whole album, we can register all of the songs on that album at once rather than doing each song individually.

4) You see an empty list of works. Let's start by adding the album itself. So, click the "New" button. In the "Title Type" dropdown list, select "Title of Work Being Registered." In the box below it, type the album title. If it's a demo, an EP, whatever...give it a title. Even if it's "Demo EP." Now click the gray "Save" button above. You are returned to the list of works and you should see the album title.

5) Now we need to list the songs on the album. Click the gray "New" button again. The songs on the album are the contents of the album, right? So, in the "Title Type" dropdown list, select "Contents Title." In the box below it, type the name of the first song on the album. Click "Save." You are now returned to the works list and you should have the album title and the first song.

6) Repeat step 5 for each song on the album. When you've finished, click the "Next" button on the works screen.

7) The next screen asks if the work has been published. If you've sold the CD, posted the songs on Myspace, Sonicbids, or otherwise made the recordings public (I mean THESE recordings. Not another recording of the same song.) you MUST say yes. Answering incorrectly is not going to help you. Tell the truth. If you select yes, you will be asked for some extra information. "Year of Completion" means when the recording was finished. "Date of First Publication" means when you sold it, put it online, etc. (It does not mean when you first played it at a gig.) If you sold a CD at a gig, put down the date you did that. "Nation of First Publication" is where you published it. If you're reading this, my guess is you're going to select United States. You most likely want to ignore the other boxes, so click "Next."

8) We're now at the point where you need to name the authors of the work. "Authors" is a legal term in the copyright field. In this case, it means who wrote the song. If you and your 3 bandmates sat in a room and jammed, mixing and matching and tweaking until you came up with a song, you're all authors. And in our example, since we're talking about who played on the recording, all of the players are "authors." Click "Add Me" to add yourself and "New" to add the other people. For each one, put in name, year of birth, citizenship, domicile (what country you permanently live in). You should also select "no" for the "work made for hire" question. The only way this is "yes" is if you commissioned someone to write with you, or paid a studio musician. If you did pay a studio musician and they signed a release, put them as an author and choose "yes." Click "Save."

9) Now specify the person's contribution. For someone who played on the recording, check "Sound Recording" and "Performance." Click "Save." Repeat steps 8 and 9 until you have all of the people who played on the recording listed. Then click "Next" to move on.

10) You're now asked for the "Claimants." The Claimant is the person (or people) who will get ownership of the registered copyright. If you did not specify anyone as contributing a "work for hire" in the previous step, you should add all of the people from steps 8 & 9 to this list. The only scenarios where this list will differ from the authors list is if a) someone's contribution was a work for hire (in which case you leave him off) or b) the authors have already completed a copyright assignment where someone gave away or sold their rights. In those cases, the claimants would be the ones who were not contributing works for hire, or in the case of (b) the ones who received the assignment. If none of this sounds familiar, your claimants will almost certainly match your authors. Once you have all these entered, click "Next."

11) This step is about limiting your claim. You only need to fill this out if you sampled from an earlier work, took something from the public domain like "When The Saints Go Marching In" or based your song on a song that has otherwise already been registered. Most likely you will want to skip this step by clicking "Next." But again, make sure you answer this question truthfully (as with all portions). If you don't you could end up with a worthless registration.

12) The next three steps are easy (FINALLY!!!). In "Rights & Permissions" put in the name of the person that should be contacted if people want to use the song in a movie, want to cover the song, etc. Then enter the person you want the Copyright Office to contact about this registration. That's the correspondent. Finally, put in the name and address you want the official copyright certificate sent to. If you're doing the legwork here, it's very likely that all 3 steps will be you. Easy, huh?

13) Next is the screen asking about special handling. You almost certainly will not want to check any of those boxes. If any of them sound like they might apply, you probably have a lawyer involved already and you should get their opinion. Otherwise, skip this step and click "Next."

14) Now you've reached the Certification page. This is where you state that you've provided truthful information. It's important that you have done so. Assuming you have, type your name, check the box and hit "Next."

15) DISABLE YOUR POP-UP BLOCKER BEFORE YOU DO THIS STEP - You've now finished entering all the info you need. Review it, make any necessary corrections and click "Add to Cart." (This part seems to be slow, so just wait til it goes to the next screen.) If you read the parts above and you don't need to fill out a separate Work of Performing Arts registration, checkout and pay your money.

16) Once you submit your payment, a pop-up window will appear asking you to upload your songs. Choose your MP3 files from your hard drive, submit them, and that's it!

Congratulations! You'll be hearing from the Copyright Office.

If you do need to do a separate Work of Performing Arts registration, go on to Part 3.

Disclaimer: It's very important that you do this right. While I've attempted to help you through the copyright registration process, this is not legal advice. If you have ANY questions, you need to contact a lawyer and get them to help you complete the process properly.

How Do I Register Copyrights for My Band's CD? (Part 1)

2009-08-06T10:30:00.012-05:00

How the heck do I copyright my band's songs or my band's CD?

This is a very common question, and the online registration process from the Copyright Office's website is not the most intuitive thing in the world. So, I'm going to try to walk you through it in as simple a manner as possible. After I explain a bunch of stuff, there's a list of steps at the bottom that you can print out and use as a guide.

Preliminary Matters
Let's quickly clear up a couple things first.

0) "Disclaimer" - This is important stuff and you need to get it right to protect your rights properly. I intend to give you an overview in this 3-part series, but I cannot, and do not, provide legal advice over the Internet. If anything you read here, or encounter while registering is not clear, you should STOP AND CONTACT AN ATTORNEY.

1) "Copyrighting" - When you file a copyright application, you're not "copyrighting" your songs. The copyright in your songs comes into existence the moment you "fix it in a tangible medium." What the heck does that mean? Well, it just means that once you make a recording of the song, the copyright exists and belongs to you. You're simply registering that copyright with the Copyright Office.

2) Why Register? The long and short of it is that you want to be able to protect yourself if somebody rips you off. Registering the copyright(s) makes it possible for you to stop an infringer from continuing to profit from a song they "stole" from you. Without a registration, you may be able to stop them from selling any more copies, but you won't get any compensation. Having the registration allows you to receive money damages if somebody rips off your copyrighted song. It's also important, for legal reasons, to register within 3 months of releasing the material. If that 3 months has expired, you should still register. But you're in better shape if you register right away.

3) Save Yourself A LOT of Money The registration fee for online filing at the time I'm writing this is $35. If you're not too savvy with copyright registration (which is not something you should expect yourself to be savvy in) you could end up paying $35 per song to register the recordings, and maybe another $35 per song to register the work itself if the writers are not the performers. That's a ton of money. You could end up spending $840 to register a 12-song album. Do it right and you can register that same 12-song album for $35 total ($70 if the writers and performers are different). A savings of $770 is a nice American Standard Strat, a used SG or a set of bass bottoms for your PA. Follow the instructions below and save yourself a lot of money.

4) Before You Start
Collect the following information: Legal name, address, year of birth and country of citizenship for all of your bandmates/co-writers. If you don't have this, you're going to end up having to save your application in the middle and come back later to finish it.

5) !!!VERY IMPORTANT POINT!!! - What Kind of Work Am I Registering? Read this section a couple times, because it's not necessarily intuitive, but it's important. If the people who wrote the song are not the same as the people who played on the recording, you need to fill out two different forms.

Let's say I'm in a band with 3 other guys. I play drums, there's a bassist, a guitarist and a guitarist/singer. If all four of us collaborate to write a song and all four of us go into the studio and record the song (or in our basement, or wherever), we only fill out one application. In that case, we only need to register the work as a Sound Recording.

Let's say the same band is involved, but the singer and bassist write the song (think Iron Maiden or the Beatles) and all four of the band members play on the recording. In this situation you need to fill out two applications. One is to register the song that the singer and bassist wrote (that's a Work of the Performing Arts). The second application is to register the actual recording that all four band members laid down. As above, that's a Sound Recording. This means that if someone wants to use the actual recording we made, all four band members get paid. If someone wants to cover the song by making their own recording, only the writers get paid.

As I said, re-read that section if you're confused, but the bottom line is, if the list of writers is not identical to the list of performers, fill out two forms (SR and PA). If the writers and performers are the same, just fill out one (SR).

Who Owns What?
When you register a work created by multiple people, each person is presumed to own an equal share. Two writers? That's 50-50 in the PA work. Four performers? That's 25-25-25-25 in the SR. If you want the ownership to be different, you need to fill out an agreement between you afterward. That agreement is known as a copyright assignment and it lets you assign rights however you want. This is a simple agreement and you may be able to find good examples online. Note that this is not a function of the Copyright Office. This is something you do on your own (hopefully with the help of a lawyer to make sure everything looks good).

OK, let's move onto Part 2 and get started.

Disclaimer: It's very important that you do this right. While I've attempted to help you through the copyright registration process, this is not legal advice. If you have ANY questions, you need to contact a lawyer and get them to help you complete the process properly.

Amazon.com: Omnipotent Technological Deleter of Stuff you Bought

2009-07-31T13:26:00.003-05:00

Now this is interesting. Amazon.com has been sued in a class action lawsuit for remotely deleting copies of the George Orwell books "1984" and "Animal Farm" from Kindle readers. Amazon deleted the e-books (saying the e-books were found to be pirated) without notifying users in advance that the deletion would occur or that Amazon even had the capability to do so.

This certainly raises questions about users' rights to the copies that they purchase. As with any book purchase, you are not purchasing the work itself, but only a copy. You receive no right to ownership of the underlying work. But isn't your copy your property? It would certainly seem that it should be. I'm sure this side of the argument will be hashed out in the class action suit...if it actually goes anywhere.

The part that should scare the crap out of Amazon is whether someone will try to get the Department of Justice to go after Amazon for violation of criminal statute 18 USC 1030, which prevents unauthorized access to computers, or access in excess of authorization. It's a long shot, but crazier things have happened.

See the AP story at E-Commerce Times

What Does the Recent Facebook Terms of Service Update Really Mean?

2009-02-17T16:02:00.003-05:00

There has been a lot of noise across the Internet over the last two days about a recent update to the Terms of Service on social networking mega-site Facebook. Users are concerned that the new language gives Facebook ownership of the content posted by users.

Two sections of the TOS are the center of the outcry. Let's handle this section first:

You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof.

Let's break that down. Section (a) basically just says that you are uploading content to Facebook and by doing so you give them the right to show it to the world through their website. This should be a no-brainer. In reality, this language is required to protect Facebook from the ungracious user who one minute wants to upload a video of themselves doing the Macarena and then the next minute wants to turn around and sue Facebook for copyright infringement when Facebook "distributes" the content by letting other people watch it or Facebook makes a copy in some perfectly acceptable way, such as transferring it to another server. I wouldn't get yourself riled up about that at all.

Secion (b) is a little more of a concern. In short, it says that Facebook can use your images, name, etc. for their own promotional purposes. Although it's slightly scary, I wouldn't lose any sleep over it. The right to privacy is rather highly regarded in US courts (see also the right to publicity). I suspect that if Facebook really tried to use your content (especially content including your image) without getting your permission first (other than the permission you presumably give them through "acceptance" of the TOS) you could shut it down real fast by seeking an injunction and possibly threatening other action. The last thing an outfit like Facebook wants is bad publicity about how it takes its users' pictures and plasters them all over the Internet.

Next, there is a section that provides:

You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.

This is pretty standard stuff. It just means that if you delete content off the Facebook website they aren't going to take all the technical effort to go and scour their backup servers to make sure it's deleted everywhere. To some degree they can't do that, because they might be deleting information that would later be the subject of a lawsuit and then they'd risk ending up in hot water for not preserving relevant evidence.

In the end, the only part that I really don't like is that they can use you to advertise. But let's see them try that without a tidal wave of bad publicity and legal fallout.

Satriani Sues Coldplay for Copyright Infringement

2008-12-05T14:58:00.003-05:00

This isn't the first time Coldplay has been accused of ripping someone off for the melody of their song Viva La Vida. Of course, this time there's a lot more muscle behind the complaint.

Guitar God Joe Satriani (presumably at the urging of his record/publishing company) has sued the members of Coldplay alleging they ripped off his riff from the song If I Could Fly.

In order to prove an allegation of copyright infringement, the plaintiff (Satriani) must show:

1) Ownership of a valid Copyright
2) Unauthorized copying by the defendant(s)

#2 can be shown by "access and substantial similarity." Substantial similarity is a question for the fact finder (judge or jury). Access is pretty much presumed when a work has been published.

In all likelihood, this case will settle. The parties don't want to take this to court when they could otherwise be out on the road playing music and making money. However, in the unlikely event it does go to trial:

The two songs certainly sound substantially similar to me. Take a listen:

Are Statutory Copyright Damages Unconstitutional?

2008-09-11T10:32:00.005-05:00

It was only a matter of time before someone raised the constitutionality of copyright damages as a defense in the context of RIAA file sharing lawsuits. As I had suggested in my comments regarding the Jammie Thomas case, the awards of thousands or hundreds of thousands of dollars in statutory damages for offenses that create actual damages of perhaps $3.50 is fertile ground for accused infringers interested in fighting the RIAA.

Denise Barker, a defendant in an RIAA file sharing case, settled with the group yesterday for $6,050. This, after raising the constitutionality of the Copyright Act's damages provisions, though admitting to sharing major label, copyrighted files over KaZaA. Clearly the RIAA wanted no part of this fight or its sure-to-be-exorbitant legal costs.

I expect this constitutionality question and criminal copyright penalties to be the next battlegrounds for the RIAA and its defendants.

Busy Week for P2P Law - Damages Awarded in Atlantic v. Howell

2008-09-02T08:32:00.002-05:00

There's a term we lawyers use: "spoliation." In normal terms that means destroying (or allowing to be destroyed) evidence that is relevant to pending or foreseeable litigation. In even more blunt terms, it means: the stupidest thing you can do if you're being sued by the RIAA and you're moving in a winning direction.

As I discussed several months ago, a federal court in Arizona had handed a significant setback to the RIAA in their case against Jeffrey Howell for sharing copyrighted music with KaZaA. So how did Howell follow up his small victory? He destroyed evidence that he was expressly instructed to preserve by deleting KaZaA from his computer, removing all shared files, reformatting the drive and using software to wipe the drive. That will quickly turn your fortunes around. Howell was just ordered to pay nearly $41,000 to the RIAA - a damage award that may never have been had he simply followed the court's directive.

More details at Ars Technica.

Blogger Who Posted Unreleased Guns N' Roses Tunes May Soon Be a Singing Jailbird

2008-09-02T08:16:00.003-05:00

The story of Kevin Cogill, the blogger who posted unreleased tracks from Axl Roses' unreleased Chinese Democracy has seen a lot of coverage over the last week. My thoughts on the matter can be found in the following story at eCommerceTimes.com.

Doug Panzer Comments in Blogger Faces Hard Time for Posting Guns N' Roses Music.

YouTube Happy with Veoh's Win, But Not Off the Hook in Viacom Litigation

2008-08-28T09:57:00.004-05:00

A recent district court decision in which a San Jose judge ruled that YouTube competitor Veoh was not liable for copyright infringement based on infringing material posted by users is being batted about in the blogosphere and the news media in hopes of gleaning some insight into any affect it may have on the outcome of the pending Viacom v. YouTube litigation.

The ruling is clearly a win for Veoh and a good sign for YouTube, but not dispositive of the YouTube/Viacom litigation in any way. While the San Jose court's decision may be persuasive to the judge in the YouTube case, it is not binding precedent.

The Digital Millennium Copyright Act (DMCA) provides a safe harbor for service providers as long as they act as a "conduit," meaning they do not select or modify the content that is transferred. They also have to respond to take-down notices from copyright owners. While the Veoh court has clearly said that Veoh falls within the safe harbor, there are still other cases out there (such as the Aimster case) that say turning a blind eye to wrongdoing does not excuse you from liability. And more importantly, Viacom can still rely on the Supreme Court's holding in Grokster, which hinges on "intentionally inducing or encouraging direct infringement." If Viacom can convince a judge that YouTube's business model is based on encouraging users to upload infringing content in order to attract more users to the site, the fact that YouTube later responds appropriately to take-down notices may not absolve them of liability.

Bottom line, YouTube is very happy with the Veoh decision, but it doesn't necessarily affect the outcome of the Viacom/YouTube suit.

For articles regarding the Veoh decision, see:

RIAA's Bad Week

2008-05-21T08:22:00.003-05:00

The Recording Industry Association of America hit a couple bumps this past week in its anti-file sharing litigation march. In two separate cases, the RIAA was ordered to pay $103,000 in legal fees to defendant Tanya Andersen and also learned that the judge in the Jammie Thomas case is leaning toward granting a new trial to the woman who has so far been the biggest loser in the RIAA law suits.

In Atlantic v. Andersen (Oregon)the RIAA had filed a John Doe suit based upon the discovery of files shared through a Kazaa user account having Andersen's IP address. Andersen denied any involvement and even produced her computer's hard drive for review. She also denied that her 7-year-old daughter, the only other person in the house, had shared music online. Nearly two years into the litigation, the RIAA voluntarily dismissed its case. Andersen then sought nearly $299,000 in legal fees and approximately $5,000 in costs. In a 33-page opinion, the court thoroughly investigated the number of hours expended and the rates charged, finally concluding that Andersen should be awarded $103,175 in fees and $4,659 in costs. The RIAA will likely object by the May 27 deadline. However, the cautionary tale may have some slowing effect on the RIAA's filing of John Doe suits.

In the infamous RIAA case against Jammie Thomas, the trial judge is considering granting a new trial to Thomas, who was previously found liable for copyright infringement and ordered to pay the RIAA $222,000. The judge has stated that he is leaning toward granting the new trial based on a faulty jury instruction, which told jurors that simply making files available for download constitutes infringement.

For Thomas, this may prove to be only a small victory. The fact is, even though the court has clarified that its jury instruction was wrong and that actual distribution is required, the RIAA may be able to prove actual distribution based solely on the downloading by its investigator, MediaSentry. In the end, Thomas may end up being found liable again. The bigger impact of this 180 by the court is that if the court vacates its earlier judgment, it removes the largest victory the RIAA has on the books to date - a victory that is certainly making people think twice about downloading music online without paying for it.

For more of my thoughts on this decision, see the E-Commerce Times story "RIAA's Legal Steamroller May Grind to a Halt.

"Making Available" Is Not Enough for the RIAA to Show Infringement

2008-05-06T14:34:00.002-05:00

I was recently interviewed for a story in EcommerceTimes.com discussing the District of Arizona's decision in Atlantic v. Howell, the latest RIAA file-sharing case to make it to a trial court. While the court's holding in its denial of summary judgment is not Earth-shattering, it does slightly alter the landscape on which the RIAA will work going forward.

The court's holding, requiring actual distribution for a showing of infringement, certainly weighs against the RIAA’s “making available” argument. This is not the first time that the argument has been shot down. The RIAA bases the “making available” argument largely upon a Fourth Circuit case called Hotaling v. Church of Jesus Christ of Latter-Day Saints. They can’t seem to find any other case that clearly says that infringement can occur without actual distribution. That case involved a library making microfiche copies of books and the decision seemed to be largely policy based. Its use by the RIAA has been unsuccessful in other cases and it failed in Perfect 10 v. Amazon where the plaintiff also tried to argue that “making available” constitutes distribution.

In Atlantic v. Howell, the court is essentially saying that the RIAA can absolutely prove that files were available from Howell’s computer via Kazaa. However, because there’s a question as to who made those files available through Kazaa, there’s a genuine issue of fact and summary judgment is inappropriate.

The court also emphasizes that infringement requires a copy to change hands between unauthorized parties. That express statement by the court is the biggest loss for the RIAA here, but it doesn’t stop their cause.

This holding is useful by other people in fighting summary judgment, but it may not save them from an ultimate finding of infringement. The court seemed to disagree with the Electronic Frontier Foundation’s opinion that MediaSentry’s downloading as part of the RIAA’s investigation cannot constitute distribution because MediaSentry is an authorized agent of the RIAA and therefore cannot infringe RIAA members’ own copyrights.

The bottom line is that Howell may make it more difficult for the RIAA to win on summary judgment, but it won’t completely get defendants off the hook. The “making available” argument is moving in the direction of being a confirmed loser. But, by this court’s logic, MediaSentry’s act of downloading may be sufficient to complete the act of distribution by the defendant. If that argument holds up at trial, the RIAA still wins.

Article Published

2008-04-01T12:41:00.004-05:00

My most recent article on the PRO-IP Act has been published in the April issue of Intellectual Property Today. It is available online at http://www.iptoday.com/articles/2008-4-panzer.asp

The PRO-IP Act: Pulling Section 104

2008-03-18T08:43:00.002-05:00

As I mentioned yesterday, the Congressional subcommittee reviewing the PRO-IP Act has pulled section 104 from the bill in an effort to make the bill more palatable to legislators at large. In a legal and logical sense, it seems that if we give the subcommittee members - and Rep. Berman in particular - the benefit of the doubt regarding their good intentions, this amendment would have come about for one important reason. Creating a statutory damages statute that allows for damages for each component part of a compilation simply injects too much uncertainty into the legal landscape when using pre-existing copyrighted materials.

The idea of fair use is essential to the continuing creation of new copyrightable subject matter in all media. Whether it is to spur the later creator to wholly new insights or as the basis for development of derivative works, fair use allows a person to use portions of someone else's copyrighted material for things such as criticism, education and parody.

In determining whether incorporation of copyrighted material in a work is "fair use," the courts undertake to analyze the following four factors:

1.the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

2.the nature of the copyrighted work;

3.amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

Because this 4-factor analysis is interpretive, the later author or creator must make his own judgment at the outset of creation as to whether his use will be fair. If the original copyright holder disagrees and a court finds infringement, the later creator will be liable for damages. Changing the statutory damages provision as originally proposed by the PRO-IP Act, simply makes the risk too great for those intending to use materials under the fair use doctrine, and therefore stifles artistic innovation.

While the legislators on the subcommittee assure us that reform of statutory damages is still on the table, it seems that for now logic has prevailed.

Pro-IP Update: Statutory Damages Provision Removed

2008-03-17T12:22:00.004-05:00

The House Judiciary Committee's Subcommittee on Courts, The Internet, and Intellectual Property has sent its version of the PRO-IP Act to the full committee, but in the process has removed the proposed amendment to the statutory damages provision of 17 USC 504, which I discussed in my previous post. Clearly the subcommittee members have heard the calls of the many detractors who believe that this provision was poorly thought out.

Rep. John Conyers (D-MI) added a written statement to the record assuring all that the notion of statutory damages for component parts of a compilation remained "subject matter for another day." That should keep the RIAA and MPAA campaign contributions coming in.

PRO-IP Act Serves Only RIAA and Similar Lobbyists...And Not Very Well

2008-02-01T17:42:00.000-05:00

What is a single sentence worth? In copyright law, it would appear the answer is: $150,000 per song.

Much commentary has been offered over the last two months since a bill known as the PRO-IP Act was introduced in the House of Represenatives on December 5, 2007. The bill (H.R. 4279), properly known as the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" covers much ground and states its purpose as "to enhance remedies for violations of intellectual property laws." However, the bulk of the focus in the blogosphere and elsewhere online has centered around a single sentence in Section 104 of the bill - a sentence so obviously bought outright by the influence of the RIAA, the MPAA and their ilk.

Section 104 of the PRO-IP Act proposes to replace the second sentence of 17 USC 504(c)(1). Section 504 of the Copyright Act provides for copyright damages - those damages referred to as "statutory damages." In the simplest terms, Section 104 proposes to amend 504(c)(1) so that damages for infringement by illegal copying of an album will be calculated based upon individual songs - not complete albums - thereby multiplying potential damage awards in file sharing cases by 10 or 12 times the current amount in most cases.

As 504(c)(1) stands, "all the parts of a compilation or derivative work constitute one work." This means that if a person illegally downloads a 12-song album, their potential total statutory liability lies between $750 and $150,000. If the PRO-IP Act becomes law, a copyright owner will be "entitled to recover statutory damages for each copyrighted work sued upon that is found to be infringed." This means that illegally downloading the same 12-song album will expose the guilty party to a damage award of up to $1.8 million.

That Congress would so readily hand to the recording industry and other copyright owners a larger sledgehammer with which to bludgeon their fleeing customers is a fine example of influence without intellect. As a copyright attorney I am a strong supporter of the rights of copyright owners. Plainly put, intellectual property is valuable and theft of that property is no different than theft of material goods. However, the proposed damages provision in the PRO-IP bill does nothing to discourage theft by consumers or to encourage the RIAA and its member organizations to update their own failing and outmoded models.

A college student sued by the RIAA is as unlikely to pay a judgment of $1.8 million as he is to pay a judgment of $150,000. Moreover, there is no evidence that the campaign of file sharing lawsuits has done anything to stem the tide of infringement. Simply raising the potential damages by tenfold is a blind shot that clearly has less to do with solving the problem than it does with pleasing these Congressional policymakers' financial backers.

The answer to reducing infringement by mass file sharing lies in education of consumers - primarily at a young age - and the changing of the outmoded business models of the major record labels and other content owners. The PRO-IP bill neither achieves nor encourages either of these. It is simply a legislative bandage bought by the content owners and sold by Congress, when what is truly necessary is reconstructive surgery of the related business and consumer practices. In the meantime, however, the PRO-IP Act's amendment to the damages provision of the Copyright Act should provide the RIAA and others with more cash from larger damage awards and "settlements" for the same infringements that will not stop.

Universities Catching on to Traffic Shaping for Peer to Peer Prevention

2008-01-17T14:26:00.000-05:00

Last year I gave a presentation on the potential liability of universities and employers for copyright infringement stemming from peer to peer file sharing by students and employees. In my comments I advocated that universities and employers protect themselves by instituting policies of blocking such network traffic by closing ports known to be used for this type of activity. In the time since, many universities appear to have elected to slow the tide of peer to peer file sharing by using network traffic shaping instead (see, for example: link). While this practice is in the spirit of stopping illegal downloading by students, it is treading on dangerous ground in the face of a largely failing RIAA legal attack against students, which may soon realize it can turn its focus toward the universities' deeper pockets as contributory infringers.

I commented several months ago that I see at least one argument that could be used to show that universities forfeit DMCA safe harbor protection by engaging in traffic shaping. The traffic shaping practices that have become seemingly commonplace over the last several years give the universities undeniable knowledge of the type of activity occurring on their networks. Network administrators in charge of traffic shaping implementation must periodically review the efficacy of their policies and procedures. In doing so, they review the statistics related to the shaped traffic. Because the network using traffic shaping often segments particular activity - such as file sharing - for special handling, the network statistics now present to the administrator, and the university by respondeat superior, clear data regarding the improper activity occurring over its network.

17 USC § 512(a)(2) provides:

(a) Transitory Digital Network Communications.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if—
***
(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider

Universities using traffic shaping to slow file sharing without stopping it are now inserting human oversight into their technical processes. Content deemed to be infringing is "selected" for slower transmission. The practice of network traffic shaping may be bringing universities dangerously close to the line of contributory infringement for illegal downloading by students.

Network Traffic Shaping a Threat to DMCA Safe Harbor for Network Providers

2007-03-26T23:49:00.000-05:00

My reading of the article from University of Georgia student newspaper RedAndBlack.com, cited in the entry below discussing "Ruckus", left me with the uneasy thought that universities and employers, in trying to subtly dissuade downloading on their networks are choosing methods that may strip them of the protections from secondary liability under the Digital Millennium Copyright Act (17 USC § 512) for copyright infringement by network users.

The above cited article quotes University of Georgia communications director Bert DeSimone as saying that his network is largely unaffected by peer-to-peer file sharing because "[t]he system rates activities like peer-to-peer file sharing and limits it in favor of other activities...More bandwidth is given to the research mission of the University."

The practice described by Mr. DeSimone is known as network traffic shaping. Traffic Shaping is a practice by which network administrators attempt to give priority to digital transmissions of one type of information over another. This method, while effective in assigning greater bandwidth to desired network traffic and less bandwidth to undesirable traffic, is arguably an abrogation of the DMCA online service provider safe harbor when read in light of the Supreme Court's holding in MGM v. Grokster 125 S.Ct. 2764, 2767 (2005).

In order to shape network traffic, the network is configured to read the identifiers of data packets traveling over that network and read basic information from those identifiers that specifies what type of data is being sent. Because this gives the network provider (in this case the University) knowledge of the transmission of potentially infringing material over the network, yet allows that traffic to proceed and funnels the traffic into what is essentially the "slow lane" of the network highway, the provider may be charged with participating in the selection of content and/or ceasing to act as a conduit delivering content through automatic processes.

Either of the conclusions above places the university-provider squarely into the shoes of Grokster and Streamcast, the liable defendants in the MGM case. The Supreme Court wrote that there was "no evidence that either company made an effort to filter copyrighted material from users’ downloads or otherwise impede the sharing of copyrighted files" on the Grokster and Streamcast systems and was persuaded by the fact that "[the defendants did not] attempt to develop filtering tools or other mechanisms to diminish the infringing activity using their [software]."

When combined with the Ninth Circuit's language in Napster that "[i]f a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement," the network provider who shapes traffic and knowingly allows downloading to continue may be secondarily liable for copyright infringement accomplished over the network.

Can Ruckus Stop the Commotion? Free Downloads Offered to Students

2007-03-26T23:23:00.000-05:00

A new attempt to stem the tide of illegal downloading on college campuses has digital music provider Ruckus offering free downloads of MP3s from a catalog of 2.5 million songs for any student with a ".edu" email account. The downloads are licensed for use on the Ruckus player software, as well as compatible MP3 players. The music may not be burned to CD. (99 cent purchases are available for those who wish to burn CDs.) One university giving the service a try is the University of Georgia.

The program, however, leaves out a few important details regarding its origins. I believe that once uncovered by the student body at large, these omissions may lead to the rapid demise of the service.

I was surprised to find that the Ruckus service is compatible with "many MP3 players," but not the iPod or iPhone products from Apple. According to Ruckus' website, users must have a "PlaysForSure" compatible MP3 player in order to take their music files with them. That led me to ask: What is PlayForSure?

It turns out that PlaysForSure is a standard owned by Microsoft. The PlayForSure logo sports a small Windows icon in the middle, and the PlayForSure website sports a Microsoft copyright logo on the bottom of the page. It would seem, when all this is brought to light, that Ruckus and the free music downloads are an attempt by Microsoft, through creative licensing with the major record labels and negotiation with possibly unsuspecting universities, to wrestle away some of Apple's MP3 player market share, where iPod is king. While universities are likely quick to come on board with this program, seeing it as a legitimate way to stem the tide of illegal downloading on campus, thereby reducing the universities' exposure to secondary liability, I highly doubt that they are fully aware of the program's pedigree.

The article cited above from the University of Georgia raises more legal questions. Please read on in the next post for that discussion.

Online File Sharing Programs: What is BitTorrent?

2007-03-23T14:18:00.000-05:00

Much of the discussion of online file sharing that has grown out of the recent pre-litigation letters sent by the RIAA to universities and university students has been throwing out terms relating to file sharing programs and protocols without explaining to readers what these things are and how they work. Let's take a quick look at what BitTorrent, one of the most popular file sharing protocols is and how it works.

BitTorrent is a protocol that was created by a programmer named Bram Cohen in 2001 and 2002. (A protocol is simply a standardized method of communication.) Cohen also created a program to use that protocol - also named BitTorrent. The BitTorrent protocol is relatively simple from a conceptual standpoint:

Users' computers directly connect to one another over the Internet, using the BitTorrent protocol, in order to share files. The various computers achieve this connection by running a program called a BitTorrent client. There are many clients out there made by many different software companies or individuals, but all use the same technology under the hood - the BitTorrent protocol - to communicate.

The BitTorrent protocol allows users to identify multiple other computers that have copies of the files for which they are searching. Once identified, BitTorrent looks at that file as a series of digital chunks called packets. In order to achieve a fast download, the BitTorrent client downloads the various packets of the desired file one at a time, in order or out of order. When the packets arrive, the client re-assembles the packets into the whole. This is possible because: 1) each packet has an identifier that essentially says "I am packet 14 of 255"; and 2) since it's digital, all the 1's and 0's in each packet are still right where they need to be within the whole. Two obvious benefits of this method are that the user can download each packet from the fastest of multiple sources and should any source go offline, the download can continue from the remaining sources.

So far, this isn't much different than file-sharing programs like Kazaa. But here's where BitTorrent gets interesting and attractive to people who do significant sharing. The protocol weights the connections between users in order to reward the users for sharing as well as downloading. Users who download but do not make files available for upload are known as leeches. Those who provide files for upload are seeds. Since seeds are a needed source of content for download, the BitTorrent protocol gives faster downloads and higher priority to users who seed, while leeches do not get this benefit. So...the more you share the faster you can download. Further, since users are downloading in packets, they can begin sharing each packet as they receive it; no need to have the whole in order to share.

The final point: how do the clients know how to find each other? Various websites host "trackers" for torrents. These are lists of the available torrents and by downloading the torrent file related to the desired download, the user's client knows how to announce its desire to the protocol and join the torrent (i.e. the wave of uploading and downloading).

That's pretty much all there is to it. Have questions? Drop me an email.

ABA Techshow 2007: Day 1

2007-03-22T16:22:00.000-05:00

I am attending the American Bar Association's annual technology conference, The ABA Techshow, in Chicago this week. As day 1 begins to wind down, it is very clear that the recent changes to the Federal Rules of Civil Procedure related to discovery of electronically stored information (ESI) are, and will continue to be, THE hot topic and all parties agree that many questions remain open.

Federal Rule 34 now includes the language:

Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained

Most every speaker, including Federal District Court Judge Shira Scheindlin (SDNY), has spoken in terms of "open questions", "facscinating issues", "problems", "concerns", "considerations" and the like. The ability to now discover essentially all digital documents and communications poses unanswered questions of form of production, feasibility of review for privilege, responsibility of the parties to preserve information in the face of litigation and even retention, preservation and destruction of information when litigation is not an immediate concern. Furthermore, the train headlight at the end of the tunnel is clearly the cost of all of the above, which quickly may become unwieldy. The questions are unending.

Consider:

What do litigants do when their opponent uses custom software whose data is unreadable without the software?
Can attorneys possibly know the IT systems of their clients well enough to properly advise them and make accurate representations to the court regarding retention and spoliation?
Does production of TIFFs and load files deprive the receiving party of proper discovery of meta data?
What type of technological support, if any, is the producing party required to give to the recipient?
Has the individual or small business now been deprived of the ability to litigate in federal court due to the high cost of e-discovery?

It seems at this early stage that there will be questions, debate, frustration and trepidation for some time to come.