Category: Law

The RIAA's Loss

The RIAA has announced that they have stopped suing individual file sharers for copyright infringement.

The suits were based on the questionable notion that making files available in directories through peer-to-peer software like KaZaa was a violation of the copyright of the owner of the works. The RIAA was not going after people downloading music, or even people who had sent a file to someone else, but rather the set of people who had shared directories with files that looked like music and were available for public perusal.

This was problematic because the copyright statute doesn't actually say anything about "making available." The right to control who distributes one's work is one of the rights granted to authors by the statute, but the RIAA had no evidence that file sharers had actually distributed the files, just that they had made them available and that the files could potentially be distributed.

Consequently, the RIAA had to argue that "making available" was actually part of the copyright statute when it wasn't. When the handful of suits (out of 35,000) made it to court, some Judges started to realize this, and through the selfless and amazing work of Ray Beckerman, the legal community slowly turned against the prosecution.

All in all, the RIAA's campaign to sue their own customers was a disaster. CD sales continued to plummet and filesharing's popularity only increased. This is not to mention the public relations catastrophe the industry now faces. Musicians hate being associated with large corporations that the public perceives as evil, and more substantively, musicians have not seen any of the settlement monies the RIAA has been collecting on their behalf.

THE RIAA TOOK MY MUSIC AWAY

The RIAA is claiming that the campaign "was successful in raising the public's awareness that file-sharing is illegal" which is demonstrates a gross misunderstanding of the law and technology.

So what is next? The RIAA claims that they will be making deals with ISPs to institute something roughly similar to a 3-strikes and you're out policy against file sharers. The terms and details of these agreements are not flushed out (and will probably never be made available to the public), but on some level, this is a less vicious form of negotiation with the technical realities their industry is facing.

But there is already evidence of ISPs acting in haste to dismantle legal file sharing outfits. TorrentFreak has a story about an open source software tracker having their service revoked by their ISP because they were accused of hosting an illegal torrent of the game Command and Conquer. YouTube already engages in auto-take-downs of videos that are supposedly infringing.

I'm a huge fan of the site LegalTorrents.com and have used it for distributing the uncompressed (~1gb) versions of two Creative Commons videos, A Shared Culture and Media That Matters: A CC Case Study. Because everything on LegalTorrents is free to share (under an appropriate CC or similar public license), it is the perfect counterexample to the RIAA's claim that file sharing is inherently illegal.

Put another way, file sharing in and of itself is not illegal (just as crowbars in and of themselves are not illegal) and sites like LegalTorrents demonstrate this. We should not let the RIAA use the fact that they've abandoned their campaign as a positive cover to privately intimidate ISPs into breaking the Internet.

More importantly, we should keep the pressure on ISPs about preserving network neutrality. When used on the public net and ISPs, deep packet inspection filtering and application layer filtering are violations of network neutrality and if the RIAA is successful in pushing these technologies as "solutions" to the file sharing problem, we are going to have a much larger problem on our hands than 35,000 dispersed lawsuits.

The WSJ Showing Its Cards

By now everyone knows about the Wall Street Journal's shoddy net neutrality hit piece.

The article went to great lengths to conjure that Net Neutrality support was waning among its most ardent supporters -- Google, Lessig, Obama and others had all said or done things "recently" that indicated they were no longer pushing as hard for the net to stay neutral.

In the last two days, virtually every individual mentioned in the piece has come out against the WSJ and argued that either their positions were misinterpreted or that their quotes were taken out of context.

The WSJ has claimed that their piece has "gotten a rise out of the blogosphere" and has not issued any retractions or corrections to the article.

Other bloggers are commenting on the particular misunderstandings and misinformation in the article, but I'm interested in analyzing the WSJ's behavior as I believe it is symptomatic of a larger affliction of the newspaper.

Here are some things I think are noteworthy about the situation:

  • The WSJ initially discredited the blogosophere as a legitimate voice in this debate.
    Would they have said that they "got a rise out of the newspaper industry" if they had written an article that got the NYTimes, Washington Post and CNN complaining about inaccuracies? Rise probably isn't the right word, as Jay Rosen said.
  • This seems to be an example of mainstream press trolling bloggers.
    Typically, bloggers are the ones accused of trolling the mainstream press.
  • Both the original article and the follow up posts are outside the WSJ's paywall.
    Further evidence of the desire to troll the blog world.
  • The comment system for WSJ is plagued by spam.
    This indicates an immature and underdeveloped comment community. This is not to say that the WSJ should start heavily moderating their comments, just that they obviously don't seem to care about them.
  • The general attitude of Us vs. The Internet of the article and responses indicates a deep misunderstanding of conversations on the net.
    The net is no longer a community in and of itself; it holds digital representations of an infinite amount of communities that exist in reality. Things used to be otherwise, but to still think so demonstrates a dated perspective.
  • WSJ's technology writers are either vastly under-skilled for such reporting or are interested in remaining ignorant of the real issues.
    Even if one could make the specious argument that Edge caching does violate network neutrality (and I don't think anyone believes it does) it wouldn't be doing so in the same way the telecommunications companies are interested in violating network neutrality. Edge caching does not violate network neutrality in the same way the telecommunications companies are interested in violating network neutrality. More specifically, Google's movements to place caches at ISP level is not as controversial as the WSJ would like it to be. Despite having many opportunities to get the story right, the WSJ has repeatedly ignored the technological subtlety of the details and has misquoted others who were trying to set it straight.

Network neutrality is one of the primary reasons why digital journalism is viable, and the reason why newspapers are threatened online, so there is no surprise the WSJ sees the principle as a threat: they think it is in their interest to do so.

As Gandhi put it:

"First they ignore you, then they ridicule you, then they fight you, then you win."

Soulja Boy Now Officially Sending Takedown Notices

A story told in three videos:

1. "Original" Soulja Boy Video **

2. Students for Free Culture board member and friend Kevin Driscoll teaching ROLFcon nerds how to do SouljaBoy:

3. Kevin responding to his Soulja Boy takedown notice:

It seems that Kevin's video has become the victim of YouTube's auto-takedown robots. Good thing he posted it to Blip.tv as well. More info on the ROFLcon blog.

**Soulja Boy's YouTube channel doesn't allow me to embed his video into this blog, and despite my halfhearted attempts at circumventing this "feature" I wasn't able to post it with the others. I can't believe I'm arguing for the right to embed a video, or even that it would be possible to deny me the right to do so, but this is what happens when we rely on proprietary video codecs like Flash.

Google Street View's Revealing Error

Google Streetmap Blurs Faces in Advertisements, Too.

After receiving criticism for the privacy-violating "feature" of Google Street View that enabled anyone to easily identify people who happened to be on the street as Google's car drove by, the search giant started blurring faces.

What is interesting, and what Mako would consider a "Revealing Error", is when the auto-blur algorithm can not distinguish between an advertisement's face and a regular human's face. For the ad, the model has been compensated to have his likeness (and privacy) commercially exploited for the brand being advertised. On the other hand, there is a legal grey-area as to whether Google can do the same for random people on the street, and rather than face more privacy criticism, Google chooses to blur their identities to avoid raising the issue of whether it is their right to do so, at least in America.

So who cares that the advertisement has been modified? The advertiser, probably. If a 2002 case was any indication, advertisers do not like it when their carefully placed and expensive Manhattan advertisements get digitally altered. While the advertisers lost a case against Sony for changing (and charging for) advertisements in the background of Spiderman scenes located in Times Square, its clear that they were expecting their ads to actually show up in whatever work happened to be created in that space. There are interesting copyright implications here, too, as it demonstrates an implicit desire by big media for work like advertising to be reappropriated and recontextualized because it serves the point of getting a name "out there."

To put my undergraduate philosophy degree to use, I believe these cases bring up deep ethical and ontological questions about the right to control and exhibit realities (Google Street View being one reality, Spiderman's Time Square being another) as they obtain to the real reality. Is it just the difference between a fiction and a non-fiction reality? I don't think so, as no one uses Google maps expecting to retrieve information that is fictional. Regardless, expect these kinds of issues to come up more and more frequently as Google increases its resolution and virtual worlds merge closer to real worlds.

Remixing Political Speech

A lot of people have said nice things about John McCain's concession speech. It was heart felt, and he appeared compelling for a brief moment, but this doesn't mean we can forgive him for the campaign he and Sarah Palin ran.

Nonsense fear mongering, race baiting, and irresponsible partisan loyalty will forever define a poorly run campaign that ultimately brought itself down.

Never forget, as they say. Thus, here is a Cracked remix of John McCain's concession speech of what he should have actually said, given the overall tone and strategy of his campaign over the last couple of months:

At the minimum, this demonstrates the exact reason why political video should not be constrained by copyright. There is the obvious argument that this is a fair use of the original copyrighted video since it is clearly a parody, but there's also no compelling reason why the original video of the McCain speech should be restricted by copyright in the first place.

What is nice is that the McCain campaign actually agrees with me here.

The RIAA Has Already Implemented Collective Licensing

The RIAA Logo.

Indulge with me in a thought experiment.

Suppose you download thousands of MP3s over filesharing networks, and then, one day, you get nailed with the threat of a lawsuit from the RIAA. The RIAA then asks you to pay a fee to settle it now, so that you don't face huge infringement costs. You agree to do so, using your credit card, over the phone with an anonymous settlement representative (not actually a lawyer).

How is this that much different from collective licensing like ASCAP? The idea behind collective licensing for file sharing is to enable users to share files freely while paying a fee, similar to how radio stations and restaurants pay a fee to play whatever music they want. The details might get hideously complicated and I have serious reservations about adding more taxes to my ISP connection, but I do believe collective licensing is the only way out of the woods for those in the entertainment industry not interested in real sharing.

Anyway, what is the difference between how the RIAA is implementing their lawsuit campaign, and the way collective licenses might work for file sharing? You're paying a 'one-time' fee to settle your debts to the recording industries for revenues they think you cost them while downloading and sharing files.

There are some differences. For one, the settlement fee the second time around is likely to be a lot higher and perhaps the RIAA won't even offer you the right to settle the next time they contact you. You would probably end up in court facing massive statutory fines with no option of settlement. Second, the settlement fee is probably a lot higher than what the market would decide on. And finally, the settlement fee is being extracted by threat of impending lawsuit, not subscription obligation.

But the fundamentals of the transaction are very similar: users are already engaging in filesharing, the RIAA threatens with large fines if they don't pay a fee, and then, when they do pay the fee, they're off the hook for the time being.

The RIAA, knowingly or not, has effectively painted their way into a corner supporting collective licensing as the future of their business model. Whether or not the campaign is profitable is a matter of debate, but with fewer than 1% of RIAA victims choosing to fight the lawsuits, the math is in their favor: 30,000 lawsuits multiplied by a conservative $2,500 per settlement garners the RIAA at least $75,000,000 over the course of their anti-filesharing inquisition. While the payouts do not exactly make up for lost revenue from the death of their cash cow, and granted the settlements have been totally ineffective stopping file sharing, someone at the RIAA must have done the math and realized the settlements are now a full fledged revenue stream.

So while the RIAA may huff and puff and say the lawsuits are about punishing people for 'making available' (an specious legal argument to begin with) and exposing the rampant theft of our cultural heritage perpetrated by America's youth, we should really see them for what they are: an adaptation by a business to secure a new source of revenue.

The pity it in all is that the RIAA is ruining lives by doing so. If they were to just embrace collective licensing as a legitimate form of revenue, there would be a lot less friction in the marketplace for music and filesharing.

*Note that this post doesn't take into account the differences between collective licensing and voluntary collective licensing, and over simplifies the whole topic quite a bit, and for that, please accept my apologies.

Arts + Labs Astroturfing Content Filtering

by Scott Ogle

I came across a new 'industry initiative' called Arts + Labs to campaign for content filtering on the Free Culture discuss list and Wired Blog. While not traditional astroturf (the fraudulent masking of corporate agenda as a grassroots movement), because they admit that its funded by the telecoms, the campaign language and aesthetic insipidly borrows quite a lot from the Web 2.0, and free culture movements. Can you tell which of the following statements are from Arts + Labs and which are not:

The internet has become our community, our marketplace, our digital neighborhood. The internet connects us to our friends, to culture, to entertainment, to ideas, to the entire world. But the internet doesn't just bring the world to us; it also brings each of us to the world.

OR

As creators and as consumers, each of us should be free to participate and prosper online.

Sorry, trick question -- both sections are from Arts + Labs.

Anyway, what is more curious is that "The ArtLab" blogroll links to sites like TechCrunch, The Register, IP Democracy, Wired Threat Level, etc.

These are all blogs that have covered (and in some cases skewered) the efforts of telecom to filter the internet at the cost of network neutrality for the sake of appeasing big content. This is a brazen and sad attempt at blog diplomacy. It's as if DailyKos added InstaPundit to their blogroll in some effort to be increase bipartisan communication on the blogs. While commendable on some level, does anyone really think that the shills who are writing the blog are going to even mention what GigaOM has to say about Network Neutrality?

I'm not saying someone paid by the telecoms can't write blog posts linking to pro-network neutrality articles. That might even be a good thing. But what I am saying is that statements like this:

Arts+Labs is a coalition of Creative and Technology communities committed to a better, safer internet that works for both artists and consumers. At The ArtLab, we offer our information and ideas; our contribution to the conversation about the future of the internet.

come off as wholly disingenuous because Arts+Labs really represents the interests of a few corporations looking to end network neutrality. This is where the campaign is essentially astroturf and engaging in the kind of "fair and balanced" rhetoric that FOX News and Bill O'Reilly have pioneered. By putting links to blogs that sometimes carry critical (but not too critical -- no links to Slashdot or BoingBoing, mind you) opinions of telecoms they're trying give the false impression that they are interested in discussing things and engaging within a community.

They are not.

Viacom, NBC Universal, AT&T, Microsoft, Songwriters Guild of America, Cisco (don't forget Cisco also makes and sells the routers to China that help block 'dissidents' from accessing western media) don't want to talk about network neutrality with you. They want to end network neutrality.

They don't want to think of you as the creators or the editors or the musicians. No, Viacom, NBC Universal, AT&T, Microsoft, Songwriters Guild of America, Cisco, think of you as the consumers. Why else would they have a page of "creativity" and only link to content friendly and corporately funded startups sites like NBC, MTV, and Comedy Central?

Why don't they have Wikipedia, YouTube, or Flickr on there?

Its because those sites wouldn't have existed in their view of the Internet. In Arts + Labs' universe there is no amateur as creating professional media. There is no free culture, no free exchange of content, and no network neutrality. Their Internet is a Premium Content Destination® where we stayas consumers and they stay as the producers.

Notice, also, how in the above screen shot how they distinguish between "Creativity Online" and "Premium Sites." This is a common tactic when arguing against network neutrality. Content company incumbents like to argue that abolishing network neutrality will encourage development of "premium" content channels on the Internet. That sounds good, right?

But what happens when Wikipedia gets classified as "premium" content and local ISPs, users, and most destructively, the Wikimedia Foundation, all have to start paying premium rates to reach their audience? That's not so good. Wikipedia runs on a shoe string and would likely not be able to raise the exorbitant fees that big telecom would ravage them with. Who knows, maybe it would be time for Encarta to make a comeback. Surely, Microsoft has enough money to pay AT&T to push Wikipedia off the net.

So until Art + Labs adds Wikipedia (or some other actual source of creativity online) to their list of "Creativity Online" I'm classifying this campaign as 100% astroturf.

(photo of Astroturf by Scott Ogle under a Creative Commons 2.0 Attribution License)

Free Culture @ NYU Moves On

I started Free Culture @ NYU as an undergraduate during my senior year at NYU. I had actually wanted to start a similar club in high school. I was so engrossed in the 2600 DeCSS case at the time that I thought I needed a venue to discuss such things, and philosophy (my father's focus as an academic) seemed like a decent front to talk about the 1st amendment and computer code. I actually ended up attending the 2600 appeals trial at the Southern District Court of New York, and getting interviewed by the Wall Street Journal:

I should have actually started Free Culture @ WHS, but things in the copyright activist world were just beginning, so starting the Philosophy Club had to do.

When I got to college, as an April fools prank in 2004, my Junior year, I made this poster:

The RIAA's lawsuits against music fans had just began and the idea was to prank people into believing that they were coming to campus in order to offer immunity. Students could attend and 'turn in' any media with MP3s and receive immunity against copyright infringement suits. The conceit of the prank was that MP3s are not like physical objects, say guns, and even if you turn in a CD with MP3s on it, you could have just as easily made backups  beforehand. This was meant to demonstrate a) that the RIAA was stupid and didn't understand this fact and b) that this problem was an intractable fact about digital media.

After staying up all night plastering the posters on every floor of my dorm at NYU my roommate and I crashed. The following day we didn't hear or notice much, we asked our roommates what they thought about them and they told us what they thought -- having not been in on the joke, their responses were quite colorful.

But a funny thing happened.

The following week, and the week after that I noticed people in my dorm's court yard still talking. It had resonated to a point where it was actually a topic of conversation. I wasn't sure if my peers had actually understood it as a prank or not, but one thing was clear, they were annoyed with the RIAA and thought the fake campaign was stupid.

At this point I realized that this subject was inherently political and that I should do what a lot of college students do at my age, and radicalize. I would start a club, a political club. I could do what people did on campuses in the 60s and 70s and protest and stuff.

Around that time I finished my copy of 'Free Culture' by my future boss Lawrence Lessig and also read the NYTimes article about the Swarthmore students who had sued Diebold over a copyright battle, and who were also planning on starting a movement based on what they had learnt about the copyright world.

We'd name the movement after Lessig's book -- the free culture movement. We'd focus on liberating culture from the strongholds of a maximalist and litigious copyright regime designed only to protect corporate revenue and stifle innovative evolutions of culture.

Over the summer of 2004 I joined the newly launched and soon to be legendary fc-discuss list and got in contact with Nelson as well as many other budding activists. By the Fall of 2004 I was in contact with a friend of Nelson's, Inga, who would be a freshman at NYU that Fall, and we decided to start Free Culture @ NYU. (Inga is now at Harvard Law school).

We protested DRM with Richard Stallman, ran Creative Commons art shows, screened public domain films, held conferences, invited speakers, organized film remix contests, got fired from our jobs for civil disobedience, organized panels with some of the best people in our community, and generally had a great time educating and building out the free culture community on campus and in downtown NYC.

Now, Free Culture @ NYU is no longer my project, and there are no original members left. But this is how it should be.

The club is now lead by Parker, John, Max, Aditi, Wesley, and Gabe. These are photos from their most recent OSA club fest tabling event:

They're also having a club meeting on Monday at 8pm, so please visit the site and attend if you're interested.

Reaching sustainability of a project through people you know, trust and like, is the really the ultimate goal of a project like this, and now that I've moved on from NYU, I couldn't be happier leaving it in their very competent and energized hands.

Good luck guys!

Cause Caller and Robocalls

Cause Caller

When I was developing my thesis project, Cause Caller, for my masters at NYU's Interactive Telecommunications Program, I was routinely confronted with the idea of including a feature allowing ordinary citizens to have access to the auto-dialing capabilities that normally only telemarketers and political campaigns use.

In other words, should I have created the functionality where users can "robodial" politicians similar to how politicians harangue citizens? The technology is still trivial to implement -- users could simply record one message and have it sent to every politician on a list automatically.

The Federal Trade Commission just passed a law "basically outlawing" similar telemarketing calls. But the  twist is that the law seems to specifically protect prerecorded political robocalls:

However for those who have called on the FTC to help eliminate the other phone scourge - political robocalls  - the new rule will not help.  Calls from political campaigns are considered protected speech an FTC representative said.

Somehow political robocalls are considered speech where business solicitations aren't, and cannot be regulated by a trade commission. While this does give me better legal footing to launch such a feature, I'm still not thrilled about adding it.

Part of what makes Cause Caller fun (and effective, I think) is because citizens are obligated to verbalize their ideas to politician's offices in their own voice, repeatedly. This has the effect of bringing them closer to the democratic process, because even if they are simply reading a script, they are interacting with another citizen about an issue they care about. By removing that human element I would effectively remove the core element that makes the exchange meaningful. Cause Caller would annoy politicians offices and that is about it.