More Evil from the Intellectual Monopolies Mob

One of the best windows into the otherwise dark and murky world of backroom deals among proponents of intellectual monopolies can be found in the reports on the U.S.-EU IPR Enforcement Working Group (doesn't that word "enforcement" really say it all?). Here are a couple of the highlights of the latest one:

The U.S. and EU both expressed a desire to engage labor movements in delivering a “positive and constructive message” about IPR protection and enforcement. The RIAA (Recording Industry Association of America) and IIPA (International Intellectual Property Association) were both very enthusiastic about this proposal.

Basically, the IM mob are desperately trying to con unions into doing their dirty work by pushing out propaganda on intellectual monopolies. I just love the line "The RIAA (Recording Industry Association of America) and IIPA (International Intellectual Property Association) were both very enthusiastic about this proposal": you bet they are. Their own ham-fisted efforts have backfired so spectacularly that they are desperate for someone else not tainted by their inept approach of punishing consumers to try.

The following is also significant:

The discussion on future work mostly focus on climate change. General Electric and Microsoft were particularly outspoken in highlighting their fear that some current negotiations over green technology and IPR would weaken IPR. They also denounced the inclusion of proposals that limit patentable subject matter and recommend compulsory licenses or licenses of rights.

As well as Microsoft's usual bleating about not being allowed to patent software in some jurisdictions, it's interesting to note that both it and General Electric seem to rate the preservation of intellectual monopolies rather higher than the preservation of our planet. Pure evil. (Via Ray Corrigan.)

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RIAA's War on Sharing Begins

Words matter, which is why the RIAA has always framed copyright infringement in terms of "piracy". But it has a big problem: most people call it "sharing"; and as everyone was told by their mother, it's good to share. So the RIAA needs to redefine things, and it seems that it's started doing just that in the Joel Tanenbaum trial:

"We are here to ask you to hold the defendant responsible for his actions," said Reynolds, a partner in the Boulder, Colorado office of Holme, Robert & Owen. "Filesharing isn't like sharing that we teach our children. This isn't sharing with your friends."

Got that? P2P sharing isn't *real* sharing, because it's not sharing with your friends; this is *evil* sharing because it's bad to share with stranger. Apparently.

Watch out for more of this meme in the future.

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RIAA Fines: Not so Fine

Yesterday I told the story of RMS and his magic bread, and what it taught us about sharing; here's the negative corollary, courtesy of Charles Nesson:

Imagine a law which, in the name of deterrence, provides for a $750 fine [the lower threshold for statutory damages] for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew she was speeding.

Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put into the hands of a private, self-interested police force that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs on the order of $3,000 to $7,000 in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that almost every single one of these fines goes uncontested, regardless of whether they have merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in a federal courtroom.

That, of course, is the precisely the situation for copyright infringement: how can this be just?

Go Charlie, go.

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DRM's Deathmarch

Nice post from Ed Felten summarising the slow but unstoppable death of DRM. Telling tidbit:

it's interesting to see traditional DRM supporters back away from it. RIAA chief Mitch Bainwol now says that the RIAA is agnostic on DRM. And DRM cheerleader Bill Rosenblatt has relaunched his "DRM Watch" blog under the new title "Copyright and Technology". The new blog's first entry: iTunes going DRM-free.

If your best friends don't even want to know you, you know you're in trouble....

RIAA Gets...Cunning

People seem to be jumping to all the wrong conclusions on this:

After years of suing thousands of people for allegedly stealing music via the Internet, the recording industry is set to drop its legal assault as it searches for more effective ways to combat online music piracy.

The decision represents an abrupt shift of strategy for the industry, which has opened legal proceedings against about 35,000 people since 2003. Critics say the legal offensive ultimately did little to stem the tide of illegally downloaded music. And it created a public-relations disaster for the industry, whose lawsuits targeted, among others, several single mothers, a dead person and a 13-year-old girl.

Think that the RIAA is getting sensible? Think again: it's just getting clever:

Instead, the Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider's customers making music available online for others to take.

Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.

Yup, it's that old favourite: three strikes and you're out...

More Feedback from Number 10

Those e-petition replies just keep on coming.

In response to the following:

“We the undersigned petition the Prime Minister to not force internet service providers to act as legal representatives for the RIAA and be treated like a common courier.”

That nice Mr Brown says:

The Government recently published a consultation document on unlawful Peer-to-Peer (P2P) filesharing, which intends to gather views on proposals for a co-operative approach between Internet Service Providers (ISPs) and rights holders to address the issue of P2P file-sharing technology, used for the illegal exchange of copyright material.

Unfortunately, much of the media reports around this issue have been incorrect. There are no proposals to make ISPs liable for the content that travels across their networks. Nor are there proposals for ISPs to monitor customer activity for illegal downloading, or to enforce a “3 strikes” policy.

Instead, we are focusing on an approach that:

· educates consumers and citizens about the importance of recognising and rewarding content and the dangers of unlawful downloading;
· encourages the content and telecoms industries to concentrate on ensuring that content is made available to consumers in a variety of attractive packages; and
· takes action to ensure that where file sharing still happens people are made aware of the unlawful nature of their actions and effective mechanisms for dealing with repeat offenders are identified.

The consultation closes on 30th October 2008 and anyone with an interest in these issues is welcome to respond. The consultation can be found at: http://www.berr.gov.uk/consultations/page47141.html

I'll be writing more about the consultation in due course.

Back-Door Maximalist Intellectual Monopolies

This looks like a very serious attempt to bring in maximalist intellectual monopolies through an agreement called SECURE under the aegis of the World Customs Organisation (sic) :

Susan Sell, director of the Institute for Global and International Studies at the Elliott School of International Affairs in Washington, DC, said in a recent paper (available here [pdf]) that the SECURE aims were “TRIPS-plus-plus,” referring to extending beyond the scope of the 1994 World Trade Organization Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS). “These new anti-counterfeiting and enforcement initiatives are just the latest mechanisms to achieve the maximalists’ abiding goal of ratcheting up IP protection and enforcement worldwide,” she said.

Viviana Muñoz Tellez of the intergovernmental South Centre said in the South Centre Bulletin (16 April 2008 issue [pdf]) that the SECURE working group seems to be “setting new standards of intellectual property enforcement through the back door,” and that this “may extend beyond the WCO mandate.” Separately, she told Intellectual Property Watch that standards presented as voluntary could become mandatory down the line. “Soft law,” she said in the article, “is often the basis on which ‘hard law’ is later established.”

And if that's not bad enough, there's a couple more details:

Other concerns of Sell’s are that the standards would extend monitoring to all IP, as opposed to just trademark and copyright, and would free IP rights holders from the burden of providing evidence that there is infringement “initiate a procedure.”

Patents would be turned into a customs issue (whaaat?), and there would be no need actually to show that an infringement happened in order to start a "procedure".... In other words, this SECURE (and for the name, see here) is about extending the RIAA's intimidatory tactics to the whole of intellectual monopolies, and globally.

But wait, there's more:

There also was substantive concern that rights holders, such as industry trade associations, were participating in WCO meetings at the same level as member states, to the extent of having their own vice-chair. Muñoz’s article characterised their involvement as “on equal footing” with members, and said they can “equally suggest draft language.”

...


“We’ve been very open with the public,” he added, about the allowance of private sector stakeholders in the meetings. What is unique about the way that WCO meetings are run is that observers may speak and express opinions once members have spoken. This is in contrast to the WTO and WIPO, where observers generally only offer comment if asked to, or with express permission of a meeting chair.

So, the industries mostly closely involved with intellectual monopolies are helping shape the agreement alongside the government organisations. Well, that's sure to produce a balance, isn't it?

Do You Copy, RIAA?

Here's an important observation:

Though there is already a growing body of legal decisions that seem to be weighing against RIAA efforts to discourage individual consumers from copying content, the Howell decision is notable in that the judge went to particular pains to delve into the technological "hows" of file sharing as well as into legal precedents. In doing so, Judge Wake has challenged publishers pursuing such suits to recognize that the more that they go into these suits the more that they create a wide portfolio of rulings that begin to flesh out the full reality of electronic content use - a portfolio that over time has weakened rather than strengthened their claims to inhibit content copying. Put simply, the more that these suits continued, the more circumscribed their claims become and the more that their presumption of complete power over copying will weaken.

But They Can Spell "Intellectual Monopoly"...

British-based music industry umbrella the International Federation of the Phonographic Industry is now rapidly acquiring the reputation the Recording Industry Association of America (RIAA) has in the US for heavy-handed but thinly-veiled anti-piracy measures. It’s produced a booklet it’s distributing through schools and colleges, libraries, record stores, teaching portals and websites in 21 countries that “aims to help young people use the Internet and mobile phones safely and legally to download music”.

Thank goodness British yoof don't read books nor booklets no more.

Another Reason Why "Three Strikes" Won't Work

The idea that a Draconian "three strikes and you're out" approach will actually stop people from downloading copyrighted material betrays a vast ignorance of how the Internet works, and of the fact that some people thrive on a challenge. Here's one way of spiking the "three strikes" approach:

BTGuard is an easy to use proxy service that adds an extra layer of privacy to your BitTorrent transfers. The service is designed for BitTorrent users who don’t want their ISPs or any third party to log or throttle their IPs or traffic.

btguardBTGuard reroutes all your BitTorrent traffic through their servers in Canada. This means that anyone who connects to you via BitTorrent, even the MPAA or RIAA, will see BTGuard’s IP, and not yours.

BTGuard does not have any bandwidth or volume restrictions, and while we briefly tested the service (from Europe), the speeds were almost equal to an unsecured connection. Setting it up is fairly easy, the only thing you need to do is enter the username and password provided by BTGuard, and you’re ready to go.

TorrentFreak asked one of the founders of the project why they launched the service, he told us: “More and more, people find their privacy being invaded on the Internet and we find it to be a very disturbing, unethical trend. There are some countries that still actively protect privacy, one of which is Canada.”

So the RIAA will end up in Canada, where the trail goes cold. Then what?

We 'Umbly Petition....

I'm not sure that these e-petitions do any good, but since they exist, it seems churlish not to use them. Here's another one Brits may be interested in signing:

We the undersigned petition the Prime Minister to not force internet service providers to act as legal representatives for the RIAA and be treated like a common courier.

I think they meant "not to force" and "carrier", but I doubt Gordon's going to be paying that much attention....

How Hated Does the RIAA Want to Be?

The recording industry is an extraordinary example of not learning from experience. You would have thought that the backlash against its heavy-handed response to people downloading music would have been enough to teach it a lesson, given the negative image it earned as a result. Apparently not:

In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.

The industry's lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings.

"I couldn't believe it when I read that," says Ray Beckerman, a New York lawyer who represents six clients who have been sued by the RIAA. "The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright. But recently, the industry has been going around saying that even a personal copy on your computer is a violation."

This is beyond a death wish.

P2P'ers (Heart) CDs

Imagine:

A newly study commissioned by Industry Canada, which includes some of the most extensive surveying to date of the Canadian population on music purchasing habits, finds what many have long suspected (though CRIA has denied) - there is a positive correlation between peer-to-peer downloading and CD purchasing.

So tell me again why the music industry is pursuing the P2P crowd with such ferocity? Death wish, perhaps?

Fair Use Worth More Than Copyright

Fair use (fair dealing in the UK) is the Cinderella in the world of intellectual monopolies. Some brazen monopolists have even gone so far as to claim that fair use is not a right.

Against this background, it's good to see some US research that not only recognises the vital contribution fair use makes to society, but puts a value on it:

This report has sought to measure the footprint of fair use on the U.S. economy. It has considered not only the core fair use industries, but also the suppliers of goods and services to the fair use core and major users.

The research indicates that the industries benefiting from fair use and other limitations and exceptions make a large and growing contribution to the U.S. economy. The fair use economy in 2006 accounted for $4.5 trillion in revenues and $2.2 billion in value added, roughly 16.2 percent of U.S. GDP. It employed more than 17 million people and supported a payroll of $1.2 trillion. It generated $194 billion in exports and rapid productivity growth.

These figures are particularly important in the context of the inflated claims of various content organisations like the RIAA and MPAA with respect to losses caused by unauthorised copying. In fact those losses - and the combined contribution of copyright-based industries - are dwarfed by the scale of the fair use world.

Time for Cinderella to marry the prince. (Via Slashdot.)

Making Music, Making Money

I've written about this idea before, but it's good to see further evidence that you can make plenty of money from music without worrying about fans copying your songs:

Sweaty rock gigs and hippy festivals have given way to a golden age of live music in the UK.

...

"Live music is the ultimate experience. It's not bootleggable, you can't replicate it, you can't steal it, and you can't mimic that experience of actually standing at a gig - the roar of the crowd, the smell of the greasepaint."

RIAA, are you listening?

Give The RIAA Enough Network Cabling...

...and it will hang itself.

One of the under-appreciated benefits of a medium like Web publishing that has practically no barriers to entry is that anybody can post anything - and does. These might be veritable gems - or utter, own-foot-shooting howlers that in some respect are even more precious than said jewels.

For example:

Between 1983 and 1996, the average price of a CD fell by more than 40%. Over this same period of time, consumer prices (measured by the Consumer Price Index, or CPI) rose nearly 60%. If CD prices had risen at the same rate as consumer prices over this period, the average retail price of a CD in 1996 would have been $33.86 instead of $12.75.

Only the RIAA.

David Pogue Meets The Pogues

This fine piece of doggerel deserves to become No. 1.

It could do with a catchier title, though: instead of "Ode to the RIAA", how about "pogue mahone"?

Thanks a Trillion

The RIAA has done a huge service by taking on the doughty AllofMP3 service.

The December 21 lawsuit argues that 11 million songs were allegedly pirated, and seeks damages totaling $150,000 per violation. That's a $1.65 trillion lawsuit - a value slightly less than the Gross Domestic Product for the United Kingdom in 2005.

Put like that, you realise that RIAA is now certifiably bonkers: a tiny Russian company has caused almost as much financial damage as one of the world's biggest economies to an industry worth at most a few billion dollars? I don't think so.

Why WiFi Sharing is Good for You

One idea gaining currency is that of creating a patchwork of free wireless Internet access points by leaving your WiFi network open for anyone to use. Of course, spoilsports have adduced all sorts of reasons why this might be a bad thing to do, but now, courtesy of those nice people at the RIAA, here's a reason why it might be a good move:

For years, the RIAA has claimed that having the IP address of a computer that has shared unauthorized files is the equivalent of having the evidence of who was actually sharing files. That, of course, is false. The IP address simply can help you know who paid for the internet access, but not who was using what computer on a network. In fact, this even had some people suggesting that, if you want to win a lawsuit from the RIAA, you're best off opening up your WiFi network to neighbors. It seems like this strategy might actually be working.

Distant Thunder - from Space

Well, it was bound to happen:

The recording industry sued XM Satellite Radio on Tuesday over its new iPod-like device that can store up to 50 hours of music for a monthly fee, sending to the courts a roiling dispute over how consumers can legally record songs using next-generation radio services.

Time and again, a new technology that allows users to do something novel with content gets attacked by the self-appointed guardians of the sacred copyright flame - and the users' desires and rights can take a running jump. And time and again, it turns out that the new way of transmitting, making or storing copies generates more revenue, not less: think cable television, video cassettes and - soon - digital downloads of music. I'm sure satellite radio will be the same.

If only there were somebody with half a neuron in the content industries that could learn a little from history, and help forge the future, instead of needlessly fighting it all the time. (Via IP Democracy.)

Update: It appears that those behind the new lawsuit, the RIAA, specifically promised never to do this. (Via Techdirt.)