Warner Music: we'd rather go out of business than give customers what they want

After Steve Jobs said that he'd prefer to have the iTunes store sell DRM-free music, but is forced into DRM by the music labels, Edgar Bronfman of Warner Music said that his company will have nothing to do with DRM-free music:

"We advocate the continued use of DRM," Bronfman said, adding that music deserves the same anti-piracy protections as software, TV broadcasts, video games and other forms of intellectual property. "We will not abandon DRM nor services that are successfully implementing DRM for both content and consumers."

This quote appeared in an article reporting Warner's dismal results:

its fiscal first-quarter profit fell 74% because of fewer album releases and soft domestic and European sales. Its shares fell nearly 6%.

The New York-based recording company said net income for the period that ended Dec. 31 declined to $18 million, or 12 cents a share, from $69 million, or 46 cents, a year earlier. Revenue fell 11% to $928 million.

The competition at EMI, however, feels differently:

Music label EMI Group is in talks to release a large portion of its music catalog for Web sales without technological protections against piracy that are included in most music bought over the Internet now, sources said on Thursday.
...
One source familiar with the matter said that EMI was in talks to release a large amount of its music in an unprotected MP3 format to various online retailers.

EMI's plans apparently include talks with Shawn Fanning's SnoCap about releasing MP3-format music through MySpace.

Which company is more likely to still be in business under the same management ten years from now?

The RIAA doesn't understand economics

The Recording Industry Association of America has a web page arguing that we're all getting a fantastic deal on compact discs because, if they had gone up in price along with the Consumer Price Index, they'd be over $33 each. As Ben Woods points out, by that same argument Texas Instruments calculators that cost $20 in the mid-1980s should have cost over $300.

In fact, the recording labels engaged in price fixing, by setting "minimum advertised pricing" on CD retailers, which caused prices to stop their downward trend in 1996--and causing a decline in sales as prices increased.

If you want to sell more CDs, lower the price.

(Via Techdirt.)

UPDATE (February 9, 2007): This post at kuro5hin from January 2003 on "RIAA vs. MP3 vs. Adam Smith" addresses compact disc pricing and demand.

UPDATE (February 10, 2007): And this post at Techdirt reports on a study that shows no measurable effect on CD sales from online downloads (as opposed to, say, CD prices).

Selling nothing for something

Long or Short Capital reports that:

[Conceptual] artist Jonathon Keats has digitally generated a span of silence, four minutes and thirty-three seconds in length, portable enough to be carried on a cellphone. His silent ringtone… is expected to bring quiet to the lives of millions of cellphone users, as well as those close to them.

Given the duration of the ringtone, Keats should expect to get sued by the estate of John Cage for copyright infringement.

Landmark Forum abuses copyright to suppress criticism

The San Francisco-based Landmark Education, an offshoot of Werner Erhard's est, has been misusing the Digital Millennium Copyright Act to threaten online video providers and cause the removal of material critical of the organization. They've specifically targeted a film that was broadcast on French television titled "Voyage to the Land of the New Gurus" ("Voyage Au Pays Des Nouveaux Gourous") which was posted on Google Video, YouTube, and the Internet Archive. This film included footage shot undercover at Landmark events.

In addition to demanding removal of the film under the DMCA on the bogus ground that their copyright in the "Landmark forum leaders manual" is being infringed, they have issued subpoenas to try to identify the individuals who have uploaded the video.

The Electronic Frontier Foundation has acted to support the Internet Archive and Google in actions to fight the subpoenas; YouTube has notified its user and given them an opportunity to quash the subpoena. The EFF's website documents their activities and the status of the case.

These three videos include part of the content that Landmark Education is trying to suppress. The first begins with some references to Scientology and a quote from Christian anti-cultist Walter Martin (the late "Bible Answer Man," whose successor was discredited creationist Hank Hanegraaf), followed by video footage of Anthony Rapp from "Rent" talking about Landmark Education. It then goes into "Voyage Au Pays Des Nouveaux Gourous" beginning at about 3 minutes in, which is French with English subtitles. Unfortunately, this is not the complete show, though it does show some interesting undercover footage of Alain Roth of Landmark Education verbally abusing a woman at a Landmark seminar.

Landmark Education Part 1


Landmark Education Part 2


Landmark Education Part 3


UPDATE (December 10, 2006): Landmark Forum has withdrawn its subpoena of Google.

More from behind the scenes of the Australian/U.S. creationism schism at Answers in Genesis

More information has just come out about the split between the Kentucky-based Answers in Genesis and the Australia-based Creation Ministries International. (UPDATED for clarification: CMI is composed of organizations from Australia, New Zealand, South Africa, and Canada which were all formerly united with the Kentucky group under the Answers in Genesis name. The Australian group was the Creation Science Foundation prior to the association of the groups under the Answers in Genesis name.) CMI has published a number of documents on its web site about the split. These documents, which I'll describe below, make the case that the U.S. group has acted in bad faith to appropriate for itself many of the resources of the Australian group, as well as to put it into an untenable position of being potentially liable for certain actions of the U.S. group without getting any financial benefits. These documents, on a website headed with tomorrow's date (today in Australia, where it's currently afternoon), were pointed out in comments on my blog post by "JaneD" (presumably the D is for "Doe"), who appears to have set up a new blogger account to bring the information to public attention.

This split, which I pointed out on my blog back in March 2006, along with some financial data about the U.S. group and some speculation about the causes, occurred in late 2005. In that post, I noted that certain information critical of other creationists (and convicted tax evader Kent Hovind in particular) had been removed from the U.S. group's site. A brochure from the CMI suggested that a difference of approach, including ethical considerations, was the primary reason for the split:

The AiG website was developed in the US and hosted there. It was largely dependent for its intellectual content on the scientists and thinkers in the parent corporation, in particular such as Dr Don Batten, Dr Jonathan Sarfati, and Dr Carl Wieland. These and other writers were heavily contributing to the site until late 2005/early 2006, when the US ministry withdrew themselves from the international ministry group (with the exception of the UK) with an expressed desire to operate autonomously, without e.g. website content being subject to an international representative system of checks/balances/peer review involving all the other offices bearing the same 'brand name'.

At that time, in the midst of discussions about this and other differences in operating philosophy (not involving the statement of faith or similar), the Australian office was formally invited to form its own website. This required a new name to avoid confusion.

The four national ministries (Australia, Canada, New Zealand and South Africa) which were committed to continuing their focus and operational ^Qteam^R philosophy, and to continuing to forge and strengthen a representative international ministry alliance structure (based on Proverbs 11:14), then rebranded as Creation Ministries International (CMI).

The Australian group has long had a policy of publishing material critical of bad creationist work, and its journals have occasionally published some excellent debunkings of standard creationist arguments, such as the shrinking sun and moon dust arguments for a young earth. This apparently was considered by the U.S. group to be bad for business. (UPDATE: This was indeed a major issue in the dispute which led to the split. The Australian organization wanted more international control over the content of material to be distributed internationally, in the form of an international committee with votes weighted based on the size and seniority of the organization. The U.S. organization rejected this proposal, reserving most of the power to itself.)

Roger Stanyard has proposed that the Australian methodology was not actually peer review, but a form of shakedown against creationist authors who didn't toe the group's party line. He attributes the breakdown to the handling of Dennis Petersen's book, Unlocking the Mysteries, which was making money for Answers in Genesis but was criticized by the Australians. While I agree that the Australians' peer review was less-than-stellar (in what it let pass through uncritically), my interactions with the leadership of that group lead me to believe that they are honest and ethical in their behavior (though wrong in their beliefs). (UPDATE: The removal of material criticizing the Petersen book from the Answers in Genesis website occurred after the split. Stanyard appears to base his account on John Mackay, a source of highly dubious quality.)

The new information on CMI's website consists of the following:
1. A letter dated November 15, 2006 (PDF), from CMI to Answers in Genesis setting forth their complaint about a November 1, 2006 letter from Answers in Genesis to the general public, which CMI considers defamatory.
2. An email of November 21, 2006, alerting a number of people to the previous item, which had so far been ignored.
3. A summary of an October 2005 memorandum of agreement (MOA) between the Australian and U.S. groups setting forth the conditions of their separation, explaining how it disadvantages the Australian group and why the Australian group's management attempted to reject and renegotiate it.
4. A section of the "Deed of Copyright License" (PDF) signed by the directors of both groups, with comments pointing out its unreasonable terms.
5. A PDF document setting forth a chronology of the relevant events.
6. The text of a letter from senior staff of the Australian group to their board of directors (PDF) prior to their trip to meet with the U.S. board, setting out their desired reforms.

As near as I can tell, the documents on the website suggest that the directors of the Australian group were induced to fly to the United States and sign the memorandum of agreement setting forth the terms of the separation of the groups without the knowledge of the management of the Australian group (e.g., Carl Wieland and the Australian staff). The MOA, drafted by the U.S. group's attorneys, set terms for the separation that were entirely favorable to the U.S. group. The Australian group's directors who signed the document then resigned en masse, under the condition that they be given indemnity for their actions--the letter suggests that they were in breach of their fiduciary duties to the Australian group for signing the agreements. (UPDATE: These Australian directors--John Thallon, Greg Peacock, Jim Kitson, and David Denner--asked for indemnity for their actions in return for their resignations after consulting with an attorney. Thallon then moved to Kentucky and is on the board of the U.S. group.)

The description of the MOA states that it gives perpetual license for all articles published by the Australian group's magazine and journal to the U.S. group, including the right to modify the articles and change the names of the authors, including a false statement that the authors had given permission for this. If anyone sues the U.S. group for copyright infringement, the Australian group agrees to pay all costs. All fees and costs for items are set unilaterally by the U.S. group, which the U.S. group has used to increase fees charged to the Australian group for materials (such as DVDs) by up to three times. The domain name answersingenesis.com, an asset of the Australian group, was transferred to the U.S. group, apparently without compensation.

Upon learning of these onerous terms, the Australian management attempted to reject the MOA and requested renegotiation of terms, to no avail; the U.S. group has refused to allow the participation of Carl Wieland in any negotiation.

In short, it looks like this was a struggle over money and control, with the Australian group out-maneuvered by the U.S. group. If the information in these documents is accurate--and I am inclined to believe that it is--it shows that Ken Ham's Answers in Genesis is as sleazy in its business dealings as it is in its misrepresentations of science.

I'll be digging further into this story... watch this blog for updates.

UPDATE (November 21, 2006): I've been informed by Carl Wieland that the page of documents on the website was not supposed to have been made available through the website, but only as individual items for recipients of the email referenced above as item 2 (and given below). The main page and several of the other items are no longer at the locations I had linked to, but I've updated the links based on the below email. Wieland has declined to comment on the actions or motivation of AiG, and expressed a desire to avoid anything that would be used "to smear all creation ministry in general."

The following is the text of that email:

Clarification re innuendo about CMI in email/letter from AiG-USA.

Sent 21 November 2006

From: the Board of Creation Ministries International (CMI)-publishers of Creation magazine (still available in the USA) and the Journal of Creation (formerly TJ) in Brisbane, Australia.

Dear colleague in creation outreach

We write this with considerable sadness. You are likely aware that there are some tensions between the ministries of CMI and AiG that go back some two years or so. We had hoped to be able to settle these peacefully, despite our ministry having suffered significant tangible losses at AiG's hands. We have repeatedly but unsuccessfully tried to get AiG to meet openly with all of us, or failing that, to have both our ministries submit to binding Christian arbitration to see things done justly.

We believe we have acted with considerable restraint in our public comments thus far, despite seriously provocative actions. These include substantial commercial ruthlessness against our ministry as part of what increasingly has the hallmarks of some sort of vendetta. Nevertheless, we have kept the details very quiet for a very long time, not wishing to cause harm or escalation, and hoping for 'peace with honour'.

A most unfortunate and unfair email

Unfortunately, a number of people have contacted us just now, saying they have received a brief email from AiG-USA's chairman (which we have seen) that casts serious slurs against our ministry. In effect, it engages in widespread public slander.

The email alleges that we have engaged in 'unbiblical' and 'factious' behaviour (a word applied in the NT to those who introduce doctrines contrary to the Gospel, and translated as 'heretic' in the KJV). This is an immensely serious and damaging allegation against an evangelical ministry and one that has not been substantiated, and is totally without foundation; our ministry's doctrine has not changed one iota, either in word or in practice.

The email also hints darkly at a 'spiritual problem' as a justification for their breaking off discussions with us. It also refers to a letter the AiG-Board sent us on November 1 to that effect, saying that that letter is available to enquirers upon request. That letter was essentially an expansion of their shorter email; it repeatedly affirmed their own righteousness, and that they were breaking off negotiations until we resolved our 'spiritual problems'. These 'problems' are not specified, which darkens the innuendo ('What? Who?').

Dismayed by this turn of events, we prepared a detailed response that was emailed to each of the Directors on AiG-USA's Board, on 15 November 2006. It outlined and clarified the issues in detail. In it we also pleaded for AiG to urgently withdraw from this action, giving them three days to respond-i.e. to contact us, to make some move to draw back from this abyss, to avoid us making our response public. We have received no response or acknowledgement from AiG, even to this date, some six days later.

Worldwide libel distribution

The same AiG email defaming our ministry has also been sent out by an Australian creationist running his own ministry, who had split with Ken Ham in 1986 (this man had been excommunicated by an Australian church, a still unresolved issue-see www.CreationOnTheWeb.com/mackay for Ken Ham's own words about the seriousness of these actions against our ministry and an individual at that time). So this defamation has been sent to a substantial worldwide email mailing list, which would include overlap with many of our own supporters. This AiG email was clearly sent to that 'distribution source' by AiG; the covering comments state that 'Ken Ham advises', and refer to AiG's permission for the recipient to spread it still further.

(The aim appears to be to encourage as many people as possible to lose confidence in our ministry, and of course AiG will have a commercial 'bonus' in that the more that are encouraged to 'enquire', the more email addresses they will have, making it easier to further undermine CMI ministry in this country.)

We deeply regret that AiG/Ken Ham have seen fit to engage in this most serious escalation. Even in the face of this defamation, our overwhelming preference would have been to have had AiG respond to our urgent letter, to continue talks in openness and light as the Scriptures enjoin us to do rather than for us to have to publically stand against the libel.

In the absence of any evidence of remorse or willingness to undo this most recent and grave public attempt to damage us, we solemnly, before the Lord, believe we now have no choice but to protect the public reputation of the ministry organisation that has been entrusted to us, in as dignified and God-honoring a way as we can.

So we have chosen in the first instance to provide, within this email, a website link (below) to the full text of our formal 15 November response to AiG, which should substantially clarify CMI's position.

Of course, we do not know who all the many folk to whom AiG's defamatory comments have been emailed are, or how many times it has multiplied on the internet. So we are sending this email you are reading to the following:

1) To any who actually enquire of us.

2) To our corporation's members (an outer layer of protection which holds the directors accountable), our staff and our volunteer workers/speakers, local reps, etc.

3) To the management of our four national affiliates (CMI offices in Canada, NZ, US and South Africa, as well as affiliates in the UK) for providing to their staff, so that they will be able to answer these allegations as they inevitably spread. Sadly, some mud always sticks, especially when it comes from a 'big name'.

4) To those we know of who are involved in creation outreach of any sort, since we are aware that at least some of these have been targeted with this AiG email and previous ones.

5) To any (including those within AiG itself) that we have reason to believe have been contacted by AiG with similar intent and have likely received similarly misleading statements and views.

The link

Our letter of response to AiG is reproduced at this link on our site, www.CreationOnTheWeb.com/dispute

If you did not receive the AiG email, we ask for your compassionate understanding of the dilemma we were facing; we know from those who have already contacted us that it went out widely to creationists, but do not know exactly who did and didn't receive it.

This sorry development will bring shame on the Name of our Lord and Saviour, and give cause for the enemies of God to gloat. Would you please consider committing these matters, which also have the potential do damage to creation ministry in general (even more than has already occurred), to prayer.

Yours very sincerely in Christ,

The Board of Creation Ministries International Ltd. (Australia)

Mr. Kerry Boettcher (Chairman)
Mrs. Carolyn McPherson (Vice-Chairman)
Dr. Carl Wieland, M.B., B.S. (Managing Director)
Dr. Dave Christie, B.Com, M.Admin, Ph.D., FAICD, FIMC (Director)
Mr. Fang, Chang Sha B.Sc (hons), M.Sc. (Director)
Rev. Dr. Don Hardgrave, B.D, M.A., D.B.S., Dip. Theol, Dip. R.E. (Director)

UPDATE (November 21, 2006): I have inserted a number of minor clarifications and updates throughout the above text.

Creation Ministries International has a USA branch now, in Atlanta, Georgia, to ensure distribution of its materials in the United States. This means that they will be competing for dollars with Answers in Genesis of Kentucky.

UPDATE: The link above regarding defamatory material from John Mackay and background information about Mackay was a broken link that has now been corrected, and I've devoted a separate post to this issue. The information there shows why Mackay left the Creation Science Foundation in 1987, and raises concern about Mackay's image being rehabilitated without having retracted the charges that he brought in the past. Mackay has now been attacking Creation Ministries International and siding with Ham and Answers in Genesis in the dispute--Answers in Genesis must be questioning whether having Mackay as a friend is a benefit.

UPDATE (December 29, 2006): I've added a new item to the list of materials now available on the AiG website, which is the text of a letter from the staff of the Australian group to their own board of directors listing the items of reform that they wanted from the international organization (and AiG-U.S.). This letter was sent to the Australian board members a few days before their flight to the U.S. in October 2005, which resulted in the separation agreement.

The letter specifically called for the creation of a class of non-director membership for the non-profit, composed of eight people to be chosen from a list of 20 suggestions, independent of each other and not employees of the organization, to provide better oversight and to adjudicate disputes between the board and the CEO. This group of people is intended to be analogous to the shareholders of a public company. This mechanism has now been put in place at CMI in the wake of their split from AiG-U.S.

Enforcing the world's Internet laws in the U.S.

The United States Senate has, after a three-year delay, ratified the Convention on Cybercrime. This treaty requires United States law enforcement to help other countries enforce their cybercrime laws against offenders in the United States--even if the actions are not illegal in the United States.

There was an option for the Senate to attach an amendment to the treaty that said the FBI would only aid in cases where the crime in the foreign country was also a crime here ("dual criminality"), but they did not take that option, at the behest of the Bush Administration and the Senate Foreign Relations Committee. The result is that other countries that have ratified the treaty can force U.S. law enforcement to conduct searches, seizures, and surveillance on U.S. citizens who are doing things that are legal in the U.S., but illegal in those countries, which is the main concern that has been raised by the Electronic Frontier Foundation, the Technology Liberation Front, Ed Brayton at Dispatches from the Culture Wars, and Declan McCullagh in his discussion of the treaty at ZDNet.

A list of current signatories can be found at the Council of Europe's website.

Looking at the actual content of the treaty, I don't think it's as bad as the critics have made it sound. The treaty targets specific crimes in chapter II, section 1, Titles 1-5, and I don't see how it could be expanded to cover things like the Internet sale of or discussion of products that are illegal in other countries.

Title 1 covers crimes which involve "Offences against the confidentiality, integrity and availability of computer data and systems," which include illegal access to computers, illegal interception of data traffic, data interference (intentional damage or destruction of data), system interference (e.g., denial of service), and misuse of devices. The last item seems to be the most potentially problematic, but it is qualified to say that the signatories need not enforce that one, and that it only applies to devices intended to be used for the other offenses (i.e., it carves out an exception for security testing).

Title 2 covers computer-related forgery and computer-related fraud.

Title 3 covers child pornography.

Title 4 covers copyright, which imposes nothing worse than is already in place in the United States.

Title 5 covers ancillary liability--aiding and abetting the aforementioned offenses, and corporate liability for participation in such offenses.

The problematic provisions are in chapter III, on international cooperation. Title 3 on mutual assistance provides for the possibility of requiring dual criminality--which I agree is the way the Senate should have gone. But it appears to me that the wording is such that it only mandates mutual assistance for the offenses listed in titles 1-5 (articles 1-11 within those titles).

If this really mandated the U.S. to go after people in the U.S. who are doing things like selling Nazi memorabilia in violation of French law, wouldn't other countries be worried about the U.S. ratification on the grounds that they could go after online gambling in their countries?

Today's content owners are yesterday's pirates

I posted this review of Larry Lessig's book Free Culture to Amazon.com:

Lessig has written a very clear and entertaining book about copyright, piracy, and culture, filled with lots of real-world examples to make his points. The book covers major events in the history of copyright in the United States (from its beginnings in English common law and the UK Statute of Anne) in order to show how its meaning has changed, and how those who are making accusations of piracy today were the pirates of yesterday. (Jessica Littman's book, Digital Copyright, is a nice complement to this book, covering the history of copyright in greater depth.) Lessig makes a strong case that the direction of copyright, giving greater control over content to a very small number of owners than has ever existed, is eroding the freedom that we've historically had to preserve and transform the elements of our culture.

Lessig begins by describing how the notion of a real property right for land extending into the sky to "an indefinite extent, upwards" became a real rather than theoretical issue with the invention of the airplane. In 1945, the Causbys, a family of North Carolina farmers, filed a suit against the government for trespassing with its low-flying planes, and the Supreme Court declared the airways to be public space. This example shows how the scope of property rights can change with changes of technology, in this particular case resulting in an uncompensated taking from private property owners, yet leading to enormous innovation and the development of a new industry and form of transportation. He follows this with the example of the development of FM radio, which was intentionally back-burnered by RCA and then hobbled by government regulation at RCA's behest in order to protect its existing investment in AM radio. This example shows how powerful interests can stifle technological change through its ownership of intellectual property (in this case, the patents regarding FM radio).

He then discusses how intellectual property laws have developed in the U.S., pointing out that Walt Disney's Mickey Mouse made his talking picture debut in the movie "Steamboat Willie" (he had earlier appeared in a silent cartoon, "Plane Crazy"), which was a parody of Buster Keaton's "Steamboat Bill." Many of Disney's characters and stories were taken directly from the previous work of others, such as the Brothers Grimm--works in the public domain, freely available for such copying. As new forms of media have been created, they have borrowed from previous forms. Today, however, the creators of content who have borrowed from their predecessors have successfully changed the rules so that their successors cannot borrow from them, both by extending the term and scope of copyright protection and by developing technologies that have greatly reduced the ability of successors to borrow or re-use content. The specific rules are completely inconsistent, based on the political power of the relevant parties at the time the laws were changed. When Edison developed the ability to record sounds, including recording music written by others, copyright law was changed to provide for compulsory licensing for a fee paid to the composer. With radio broadcasting, the fee still goes to the composer, but not to the recording artist. But put that same radio broadcast on the Internet, and now fees must be paid to both the composer and the recording artist.

Where there used to be a sea of unregulated uses of copyrighted material containing a small island of restricted uses (with shores of fair use), there is now a vast continent of restricted uses, a stark cliff of fair use, and a tiny channel of unregulated uses. Lessig shows a table on pp. 170-171 showing commercial and noncommercial uses and the rights to publish and transform for each. In 1790, copyright only governed publication rights for commercial uses, the other three cells of the table being free. At the end of the 19th century, publication and transformation for commercial use was governed by copyright, while noncommercial use was free. The law was changed to govern copies, including much noncommercial use. Today, all four cells of the table are governed by copyright.

Lessig discusses Eric Eldred's attempt to defend the right to transform public domain works into electronic versions by fighting Congress's continuing extensions of the term of copyright in the face of the Constitution's restriction to "limited Times," and how the case was lost at the U.S. Supreme Court to inconsistent reasoning from the conservative justices who failed to even address the commerce clause argument and the precedent they set in Lopez v. Morrison case. This is a wonderfully written, persuasive, entertaining, and dismaying book. It deserves to be widely read and understood, so that ultimately intellectual property law in the U.S. will be reformed.

This book is available online at no charge. http://www.free-culture.cc/freecontent/

Broadcast and audio flags, learn from history

The recording and movie industries want to force a "broadcast flag" and "audio flag" into TV and radio transmissions, and require all electronic manufacturers to enforce these flags to prohibit unauthorized copying and redistribution of such content. These flags have been entered into Sen. Stevens' telecom reform bill, and Sen. Sununu has a proposed amendment to take them out. This issue is being discussed in committee today, so if you've got a Senator on this list, call them today and ask them to support the Sununu amendment to remove both flags from the bill (there's a separate Sununu amendment that only removes the audio flag):

Chairman Ted Stevens (AK), (202) 224-3004                                
John McCain (AZ), (202) 224-2235                                         
Conrad Burns (MT), Main: 202-224-2644                                    
Trent Lott (MS), (202) 224-6253                                          
Kay Bailey Hutchison (TX), (202) 224-5922                                
Gordon H. Smith (OR), (202) 224 3753
John Ensign (NV), (202) 224-6244                                         
George Allen (VA), (202) 224-4024                                        
John E. Sununu (NH), (202) 224-2841                                      
Jim DeMint (SC), (202) 224-6121                                          
David Vitter (LA),(202) 224-4623                                         
Co-Chairman Daniel K. Inouye (HI), (202) 224-3934                        
John D. Rockefeller (WV), (202) 224-6472                                 
John F. Kerry (MA), (202) 224-2742                                       
Barbara Boxer (CA), (202) 224-3553                                       
Bill Nelson (FL), (202) 224-5274                                         
Maria Cantwell (WA), (202) 224-3441                                      
Frank R. Lautenberg (NJ), (202) 224-3224                                 
E. Benjamin Nelson (NE), (202) 224-6551                                  
Mark Pryor (AR), (202) 224-2353

The Consumer Electronics Association has a new advertisement out that shows the lunacy of the arguments for these flags based on the past record of these industries crying wolf about the dangers of new technology:

“I forsee a marked deterioration in American music…and a host of other injuries to music in its artistic manifestations, by virtue—or rather by vice—of the multiplication of the various music-reproducing machines…” -John Philip Sousa on the Player Piano (1906)

“The public will not buy songs that it can hear almost at will by a brief manipulation of the radio dials.” -Record Label Executive on FM Radio (1925)

“But now we are faced with a new and very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the videocassette recorder.” -MPAA on the VCR (1982)

“When the manufacturers hand the public a license to record at home…not only will the songwriter tie a noose around his neck, not only will there be no more records to tape [but] the innocent public will be made an accessory to the destruction of four industries.” -ASCAP on the Cassette Tape (1982)

Net Neutrality and Fair Use

Larry Lessig has posted an interesting blog article comparing net neutrality to fair use, and asking whether there's a problem in consistency on the part of those who favor one but not the other. As someone who more strongly supports laws recognizing fair use than regulated net neutrality, I agree with the reasons given by several of the posters (including Kevin Farnham, Jeremy, Cory Doctorow, three blind mice, and poptones). It seems that some of the better reasons to question creating a regulatory regime for net neutrality are present in these comments--I'm pleasantly surprised to see that the comments appear to be dominated by net neutrality skeptics.

Some of the highlights:

* Fair use is a limitation on rights pertaining to intellectual property, while net neutrality is a limitation on rights pertaining to physical property--Lessig's own excellent book Free Culture points out that intellectual or creative property is different from physical property in significant ways.
* The burden of proof on a fair use claim is on the person claiming fair use, not the copyright owner; in net neutrality the burden is on the property owner.
* Fair use is really a limitation on a government regulation (copyright), while net neutrality is a regulation that's a limit on business models, contracts, and technology.
* Net neutrality advocates have not been clear about what they would require and prohibit, how violations will be detected/measured, and what the enforcement mechanisms will be. (I don't trust Congress to tell network engineers how to do their jobs.)

RIAA: Burning CDs to MP3s is not fair use

Every three years, the U.S. Copyright Office accepts comments on the Digital Millennium Copyright Act (DMCA) for additional rule-making and exemptions. The Electronic Frontier Foundation (EFF) has given up on participating in the process, which they consider too broken to be worthwhile--consumer interests are simply not taken into consideration.

The RIAA's most recent filing (PDF) in this process shows that they've reversed their position since testifying before the Supreme Court last November in the MGM v. Grokster case, when attorney Don Verrilli stated (PDF, p. 12):

The record companies, my clients, have said, for some time now, and it's been on their website for some time now, that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod.

The RIAA's position in the new filing (PDF, p. 22 footnote 46) is:

Nor does the fact that permission to make a copy in particular circumstances is often or even "routinely" granted, [...] necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright owners in the Grokster case is simply a statement about authorization, not about fair use.

That is, they are claiming that they've given permission for such use, and have the right to take it away at any time, because it is not a matter of fair use. The filing points out that this is the 2003 position of the Register of Copyrights, who is quoted (p.22):

proponents have not established that space-shifting or platform-shifting is a noninfringing use.

On the same page (22), the filing states:

Similarly, creating a back-up copy of a music CD is not a non-infringing use....

(Somewhat less information may be found at the EFF's blog entry which pointed me to this filing, Deep Links.)

Cory Doctorow talk at Nature on copyright, SF, online publication, etc.

Cory Doctorow visited the offices of Nature and gave an interesting talk. (Link via Pharyngula.)

Sony BMG to "temporarily" stop using rootkit-based DRM

Sony has said it will "temporarily" stop making CDs with the problematic DRM technology. I'm sure they'll make more in the future with a modified version or a new DRM technology.

Sony DRM class action lawsuits

As reported at Brian Krebs' Washington Post blog, there has been a class action lawsuit filed against Sony in California and another one about to be filed in New York. The California lawsuit alleges violations of California's anti-spyware law, the Consumer Legal Remedies Act, and the California Unfair Competition law.

In other news from Krebs, there is now real malware exploiting Sony's DRM to hide itself. Krebs seems to be breaking the key news on this story--there are a number of other related articles on his blog worth reading, such as the one on Sony's past history of cavalier and inconsistent actions on DRM.

The EFF has an analysis of the EULA for Sony's software--it's something no reasonable person should agree to.

Back at Mark Russinovich's blog that exposed this issue and began the controversy, he rebuts a response from First 4 Internet, the implementers of the Sony DRM, and points out more evidence that their software is poorly written and can crash Windows.

Sony's DRM--not much different from criminal hacking

Mark Russinovich at Sysinternals.com, a security professional who is careful about what software he installs on his computer, found a rootkit on his Windows machine. A rootkit is a set of applications designed to hide malicious activity from the owner or administrator of a machine. He found a hidden directory, several hidden device drivers, and a hidden application.

After further investigation, he found that the software installed on his machine without his consent or authorization included files identified via Sigcheck as part of "Essential System Tools" from a company called First 4 Internet. Google revealed that First 4 Internet has implemented Digital Rights Management for several record companies, including Sony. It turned out that a recent CD he had purchased, "Get Right with The Man" by the Van Zant brothers, contained Sony's DRM.

Additional experimentation shows that the software is poorly written, and creates a load on the system by scanning the executable files associated with every running process every two seconds, and querying file information including size eight times per scan.

The End User License Agreement (EULA) gives no indication that this software will be installed to your machine, and provides no mechanism for removing it. (They have apparently since modified the EULA in response to Russinovich's analysis.) Russinovich took the trouble to take the steps necessary to remove the software (and return his computer to a functional condition), but as his analysis points out, this would be very difficult for an inexperienced user. A typical responsible computer user who saw the rootkit files and simply deleted them would cripple their computer.

This software appears to me no different from spyware, which was made illegal in the U.S. under the SPY ACT (Securely Protect Yourself Against Cyber Trespass), and also appears (as a commenters on Russinovich's blog note) to violate California state law, UK law, and Australian law. Arizona's anti-spyware law doesn't seem to apply.

Russinovich's detailed step-by-step analysis may be found here.

Don't purchase CDs with such irresponsible and sleazy DRM software.