The Mind Trap

Are Songs Just Like Rumours?

Hammer of Truth: Stephen Gordon uses an analogy of a rumour to deal with copyright issues. He argues that if someone overhears a rumour being told between two people that person is not under any obligation to honour any "don't tell anyone else" clauses. He then says that people downloading copyright infringing music should be left alone as a third party -- the contract was between the content owner and the purchaser.
I don't think that follows -- considering Gordon is refering to the practice of downloading music from p2p systems the third party is more like someone who actively seeks the rumour, for example by eavesdropping. True, the person relaying the rumour (putting the content on the p2p network) is eagerly breaking the agreement not to pass it on, but the third party has to actively go to their metaphorical house specifically to get the rumour. They're not really that innocent.

Entertainment Industry Tries To Hijack Terrorism Bill

ZDNet UK: The European Union is considering a bill which will force ISPs and telcos to keep customer data for up to a year in order to fight terrorism... and now the entertainment industry wants access to the data to search for copyright infringers.
"The data retention directive was proposed to fight terrorism. As ill-conceived as the original legislation was, this should never be used to fight the music and film industries' battles at the expense of the taxpayer," Suw Charman, executive director of the Open Rights Group. "The music industry's attempt to hijack this legislation is a travesty and a gross affront to civil liberties and human rights."

Infringing Copyright On Purpose

PC PRO: Sony's recent sabotage of the DRM movement is continuing apace with revelations that its DRM technology actually infringed copyright itself: "It seems that the XCP software from UK company First4Internet that Sony had been using to prevent unauthorised copying of its music CDs, until it agreed to recall some 4.7 million discs, contains code 'infringing the copyright of several open source projects', Johansen notes in his blog. This includes code that he himself wrote for VLC, a free cross-platform media player."
Which brings me neatly to a post I've been meaning to write for a while...

Sometimes I think it's right to infringe copyright.
Since I've been living in Mexico I've been trying to convince people of the need to respect intellectual property. They had previously been working on the assumption copyright infringement is inherently a good thing. My argument has been made very well many times before by many people, but to sum it up it is this: If the people of a country don't respect intellectual property they won't be interested in developing their own, and the country will be left further behind in the future world economy.
This point was driven home when one friend who does a radio program as part of his work looked to be in danger of losing his job and was trying to work out if he could still do the radio program. He asked me who owned the intellectual property involved in his program (he didn't know what type of IP it was, he just said the signature sounds, the format etc). My first question was what his contract had to say about it, and of course it didn't have anything to say because it hadn't occured to him until it was too late.
So far so froody... but once I had made a case for the importance of respecting intellectual property (so they understood the argument, even if it didn't follow through in actions) I then had to point out that their suspicion that corporations were abusing copyright was in many cases well founded. For example, I think that regional encoding goes against the very ideals of globalisation that many corporations stand behind with many of their business practices -- and in fact in my home land of Australia the process "breaks the spirit of the law, if not the letter" to quote Electronic Frontiers Australia. For that matter, copying something even for personal use is illegal in Australia, a situation I disagree with and conciously ignore. And to tie this post back into the beginning, companies often put onerous restrictions on their goods which not only deny "fair rights" usage but break the rights of their consumers -- Sony's DRM being a case in point. I just informed my wife of Sony's acts and told her not to buy any CDs from the label. If she really wants a band's album she should buy a pirated copy since it's the only way to ensure the CD is safe. I realise Sony has said that it has stopped using the technology, but I no longer trust the company.
Finally, there's the issue of education -- which my wife brought up expecting a fight only to find that I thoroughly agreed with her. Some of her classmates studying English wanted to photocopy some study materials that Karla had bought in Australia. They're not available here and even if they were the average Mexican certainly couldn't afford them. But these girls needed a good IELTS score to continue their studies overseas, so they could eventually return to Mexico and generate their own intellectual property, adding not only to the development of this country but also to the general belief that IP should be respected. Countries are not going to respect intellectual property unless they have a decent amount of their own. In that situation I think sharing the study guides is the right thing to do.
There's a more insidious aspect at work in the education sector. The same text books that retail in Australia for about $100 a sold for around $400 in Mexico. I cannot think of any reason why this should be so, except for the idea that some countries don't want other countries to become educated enough to develop their own IP. I can't argue against piracy in situations like this.
My end point is this: People need to be educated and learn about the importance of respecting intellectual property, so they can identify those times when it is right to break it.

US Announces Global Intellectual-Property Plan

News.com: The Bush Administration has announced plans to "crackdown on piracy overseas"...which sounds like the usual American rhetoric that they run the world. Some of the initiatives are good, but this one raises concerns:

Another program, called the Global Intellectual Property Rights Academy, would train foreign judges, enforcement officials and other stakeholders in international intellectual property obligations and best practices. The academy, overseen by the U.S. Patent and Trademark Office, plans to convene in 24 sessions in 2006, paying all travel expenses for the foreign participants, who will come from many of the same areas where experts will be working.

The "Global" academy is run by the US Patent and Trademark office...right...personally I doubt it's going to take into account variations in copyright law between countries.
US intellectual property law is designed to funnel money into large US corporations, which is fine, but many developing nations are seeking to implement intellectual property laws which foster development -- which after all was the initial intent.

Stealing Blogs

Blogherald: This post has a lot to say about RSS feeds, specifically people using RSS feeds to republish blogs on their own page. He even quotes from one RSS engine which boasts that you never have to hire another writer and yet can regularly update your page...
I especially like this comment from John LeBlanc (who writes Escamoteurettes) about his experience trying to get someone to stop using his work: "The Reader's Digest version of the story is I was called a luddite for not embracing reblogging. "Why would I not want my content republished?".
If you're too stupid to write your own stuff don't put up a site, it's that simple. The great thing about copyright is that its a leveller -- if Disney spends $100 million making some content it owns the copyright, if you spend $4.99 writing a blog you own the copyright. And the rights are exactly the same.

Comments On Kazaa

Weatherall's Law: It's good to have some extensive commentary on the Kazaa case...this blog has the issue covered fairly extensively. The main point? Both parties are going to have to work together under the oversight of the court...that's going to get catty. But if you're interested in the area (file sharing, piracy, the peculiarities of Australian law) this is a good read.

The mp3s4free Decision Disected

A couple of weeks ago Judge Brian Tamberlin handed down a ruling in a case between several record labels and an ISP and webmaster in Australia, for which he was widely condemned as a result of the sparse reporting. However, his judgement makes a lot of sense and isn't as bad as has been made out in the press.

The first big issue was over hyperlinking, and was viewed by many people as a determination that 'hyperlinking is piracy'. Actually, the judge considered many different hyperlinks, and the ones that got Stephen Cooper in trouble were the ones that initiated a copyright-infringing file download or led to a webpage from which all the user could do was download such a file. The judge found that this did not count as "making available" or "communicating" copyright infringing files, but did count as "authorising" because Cooper could have removed the links, or prevented them being put up in the first place.

Irene Zeitler, a partner at the law firm of Freehills, e-mailed me some more commentary on the judgement. "Mr Cooper's website was very carefully structured and highly organised with numerous references to linking and downloading and hyperlinks. The judge thought he could reasonably infer that Mr Cooper, who sought advice on his website, knowingly permitted the use of his website in a manner which facilitated infringing downloading. The fact that Mr Cooper didn't give evidence and therefore a reasonable explanation, gave the judge confidence that the inference could be safely and confidently drawn. Of course, it was also important that Mr Cooper had the power to prevent the infringements and the unchallenged evidence of Professor Stirling about the website operator being able to control the hyperlinks on his or her website, was critical."

Stephen Cooper was clearly promoting music piracy which is inherently illegal, and the judge wasn't about to say "well, you've found some loophole in the copyright laws", but nor was he going to effectively outlaw hyperlinking altogether... a problem similar to that faced by the judges in the Grokster trial. The judgement makes it illegal to link directly to copyright infringing activity, but doesn't make a person creating a webpage liable for everything that happens at the site that is linked to. If you link to a website you don't have to worry that another part of the site infringes copyright.

The other respondents to the suit were the ISP hosting the website, ComCen, its director Liam Bal and employee Chris Takoushis. Judge Brian Tamberlin found that these parties were liable because they had known copyright infringing activity was occuring and did nothing to stop it, such as taking down the site. There were reports -- disputed by ComCen but accepted by the judge -- that another director had indicated the ISP knew about the problems with the site and had told Cooper to take it down.

The judgement hinged on the fact that Stephen Cooper had contacted ComCen (through Chris Takoushis who the judge thought would have definitely talked to Liam Bal) about displaying an ad for ComCen on his site in exchange for free hosting. ComCen agreed. The judge found it was unlikely this would have happened without ComCen first checking the site -- and pointed out that the URL mp3s4free.com should have initiated a check for illegal activity (although it was not an indicator of illegal activity, see below).

Irene Zeitler wrote: "The special relationship between Mr Cooper and ComCen was influential but not the only factor. The key comment is in my view on page 37 where His Honour stated that where a host is on notice of an irregularity and deliberately elects not to investigate the operation and contents of a site and turns a blind eye to such indications, then, there are additional factors called into play beyond mere hosting. In my view, ISPs need to ensure that their policies provide for prompt action upon notice of an irregularity and certainly if they enter into special arrangements with hosted websites, they would be well advised to conduct a due diligence to determine that the website is not a conduit for infringing activities."

Judge Brian Tamberlin also found that it would have made little difference if the Free Trade Agreement Implementation Act (to comply with the recently signed and much maligned Australia-US free trade agreement) had been in force, because for ISPs to use the 'safe harbour' defence they have to demonstrate an active policy to terminate the accounts of repeat infringers...which ComCen didn't have.

Finally, the record labels claimed that the URL (mp3s4free.com) "conveys representations that are misleading or deceptive or likely to mislead or deceive", but Judge Tamberlin rejected this. "I am not persuaded that the domain name or the title of the website or the reference to mp3s4free is, of itself, sufficient to constitute a representation that whatever is downloaded from the website is in accordance with law and does not breach the rights of the copyright holder. The domain name merely represents that the download of copies of music recordings is free and does not make any representation regarding the legality of this downloading."

Freehills has published commentary on the case, here.

Bush Creates New Post To Fight Global Piracy

Reuters: President George W. Bush has appointed Chris Israel to a new senior-level position to fight the global piracy and counterfeiting of American products.
"Our businesses thrive on innovation, on ideas, on creativity ... That's how our country has grown. And we cannot allow a world trading environment to be created where patents and trademarks and brands are not respected," said Commerce Secretary Carlos Gutierrez. Of course, the US didn't originally respect the intellectual property of other countries, and it's only now they've got a wealth of IP that they can't allow it.
The US should fight to reduce piracy around the world and help educate people of the importance of intellectual property, and the best way to do that is to help those countries develope their own intellectual property and increase their standard of living so they can afford original goods.

Hot Property: The Stealing of US Ideas

New York Times (reg required): This book review of "Hot Property: The Stealing of Ideas in an Age of Globalization" by Pat Choate covers the credentials of the author as well as the mainstay of what the book is about...specifically that the "massive thefit of U.S.-owned intellectual properties" is a contributing cause of the technological decline the US has been experiencing. While I admit it may have some small influence, I think the decline rests largely on the education system. I've read numerous reports about how US students are not as competitive with their foreign counterparts as they once were...and refusing to teach evolution can't be helping either.

Anyway, Choate is at least fair in recognising that "as an industrializing nation in the 19th century the United States engaged in many of the practices that it condemns today, including industrial espionage. He recounts the tales of Samuel Slater, who brought secret British spinning machine technology to the United States, and Francis Cabot Lowell, a Boston patrician who used his photographic memory to steal the trade secrets of British textile manufacturers. ''The most important feature of the Patent Act of 1793,'' Choate writes, ''was what it did not provide: protections for foreign inventors. Only American citizens were eligible for a U.S. patent. Thus, any American could bring a foreign innovation to the United States and commercialize the idea, all with total legal immunity.'' In later generations, Germany and Japan similarly manipulated intellectual property rights."

Finally, Choate makes the claim that "Piracy and counterfeiting impede innovation: thieves do not invest in research, design, production, development or advertising". This is true, but I don't think it's an absolute. For example, most technical innovations that could be used for copyright infringement were fought by the copyright industry (the latest being p2p, of course), and they've often resulted in increased sales and increased revenue for the copyright owners. On the other side, relying on a popular copyrighted character (for example, Mickey Mouse) can make copyright holders lazy in producing other characters, not to mention that many patents impede innovation by making research and development more difficult.

Music Industry Eyes 'Casual Piracy'

Mercury News: The major labels are planning to add DRM technology to every CD sold in the US. Many of the technologies involving having two sets of files -- an unprotected one that plays when the CD is inserted into a player and a protected one that opens when a CD is inserted into a computer.
One example:
"On the PC, a message appears that asks the buyer for permission to install a piece of software on the desktop. Answer no, and the disc is ejected. It won't play. Once installed, the software regulates how often people can rip a full copy of the CD to the computer, burn individual tracks or make full copies of each album. EMI, for example, will permit the consumer to upload an album once per computer, burn individual tracks seven times and make up to three full copies of each CD."
This won't stop dedicated pirates from copying the music but it will stop many people from performing "casual piracy"...most people don't try to get around protection no matter how easy it is. The fact that you can copy the CD a few times for personal use will help also.
Now the problem is getting the tracks to play on iPods because Apple won't license its FairPlay system...it's ironic that the labels are now accusing others of being restrictive... (via BillboardPostPlay)