Wish I could read minds because I'd love to know what the representatives from Comcast and Verizon were thinking as they listened to lobbyists from the recording and film industries push them to snoop on their customers.
All in the pursuit of upholding the law, of course. (Naturally.)
"We need the help of ISPs. They have the technical ability to manage the flow over their pipes," Shira Perlmutter, a vice president for global legal policy at the International Federation of the Phonographic Industry, said earlier Monday at a technology conference sponsored by the Progress and Freedom Foundation. "The good news is that we're beginning to see some of these solutions emerge, in particular in Europe and Asia." (IFPI is the Recording Industry Association of America's international affiliate.)
Clearly, the content industries have legitimate interests to protect, but I doubt that any of that would hold up in court. The idea strikes me as a perverse reading of the U.S. Constitution. You don't need to be a paranoid anchorite holding out in the remote hills of Montana to grasp where this policy prescription inevitably heads. But let's suspend that skepticism and momentarily assume that some ISPs would play along. Would you trust your friendly broadband provider not to monitor other prohibited items beyond pirated songs and movies? There would be no shortage of First Amendment lawyers queuing up to get a piece of this case.
Back to reality, what all this demonstrates for the umpteenth time is that the RIAA and MPAA still show themselves to be in possession of quite the tin ear. I'm not getting too exercised because broadband providers know how to count noses. While the issue got settled in court, this much is clear: we would witness the mother of all mass departures of subscribers to rival providers pledging not to monitor their customers.
The real problem facing the RIAA and MPAA is that they're still flummoxed seven years after (the original) Napster's shutdown on how to thrive in the digital world. First, they decided to unleash a legal jihad. Then it was off to use technology to disrupt high-traffic networks suspected of assisting illegal digital file swapping. Now it's pushing a Orwellian agenda where it's perfectly fine to spy because it's all serving a higher good.
A move's afoot to get a new trial for Jammie Thomas. She's the Minnesota woman a court ordered to pay the recording industry $222,000 for copyright violations related to sharing songs.
Jammie Thomas
You may recall that the jury never found that Thomas had downloaded any music but had infringed by making the music available for others to download. So Friday the Electronic Frontier Foundation, along with a coalition of consumer and industry groups, said the court's judgment should be overturned because of erroneous instructions to the jury.
The headline here should be: EFF to court: Jammie Thomas judge was a dolt. At the time, the instructions the jury heard posited the following:
The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown.But that was a mistake, according to the EFF (and a lot of copyright specialists who have since weighed in on the verdict.) Again, from the EFF submission:
The plain language of the Copyright Act and applicable precedents mandate that an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work--a completed act of transfer. To permit a finding of distribution liability based on anything less would be to transform section 106(3) into an unbounded form of civil attempt liability, even where no copies had ever been distributed and thus no harm had ever been inflicted on the copyright owner.
This is potentially a big deal. If the so-called "making available" theory holds up, you're likely going to see some odd copyright decisions come down the pike.
Already, the EFF notes, Google's been the target of some copyright owners who have pressed their case using the theory. Ditto for the DMCA notices sent to colleges and universities "based solely on evidence that students have made songs available for possible download by others."
Even the judge in the case now acknowledges that he may have goofed up. In October, when the Thomas verdict came in, my colleague Declan McCullagh observed that the Recording Industry Association of America's victory was vulnerable.
(It) rests in large part on...the judge's decision that the record labels need only prove that Thomas made copyrighted music "available" on the Kazaa network. That means leaving the songs in a publicly accessible directory where they might possibly have been downloaded. Thomas confirmed earlier Monday that her appeal to the 8th Circuit will center on that point...It's true that ditching the "making available" idea and making the RIAA prove the songs were actually downloaded means its lawyers would have to work harder. And it wouldn't solve all of these problems above. But it would be a small step toward repairing some of the imbalances in copyright law today.
That's an important distinction. Based on what we know now, the courts agree. Bottom line: Thomas should get another day in court. And she likely will.
Hand it to "The Decider" for nailing it.
"The model of the future is what Trent Reznor is doing today. What that means for the RIAA and its members is that it renders them obsolete."
His is the second TalkBack post commenting on our story about an executive from the Recording Industry Association of America predicting that digital rights management is set for a comeback. David Hughes, who heads up the RIAA's technology unit, argued that because "any form of subscription service or limited play-per-view or advertising offer still requires DRM" then it naturally followed that "DRM is not dead."
Um, not so fast.
As Greg Sandoval's piece noted, the top four music labels are warming up to unprotected music files while an increasing number of online stores now offer some open MP3s. If DRM is "not dead," that's not to say it's positively thriving. But Hughes maintains that the signposts are about to blow in a different direction. He told attendees at a music conference Thursday in Los Angeles that the move toward subscription services will necessarily return DRM to center stage.
I don't buy that, but I can't claim to be clairvoyant, so we'll see who's right six months from now. More immediately, does the RIAA understand how much ill will DRM fosters among music listeners? All he has to do is plug in the right search terms on Google. By now, who would be surprised to learn that DRM has only widened the gulf between the record labels and their audience? I've got to assume that the record labels aren't this clueless about their customers. (Then again, maybe I'm guilty of a Panglossian world view.)
Nearly two years ago, Chris Pirillo posted a neat little rant on why DRM drove him batty. The sad truth is that two years later, his complaint remains as relevant as it was when he authored the following lines in May 2006.
I've currently got a subscription to Napster, a trial account with Rhapsody, and another trial account with MTV's URGE. That's three separate subscriptions I've got floating across all my systems. Now, I've already downloaded Pearl Jam's new album through Napster. I can't listen to it in either Rhapsody or URGE. I've paid for it already! So, let's say I turn off Napster and switch to URGE. I'd have to download the album again. What's more, Windows Media Player / Windows Explorer doesn't tell me where the album came from - I have to guess. I have to play (by trial and error) to see which albums are supported by which service. THIS IS MADNESS! Why can't the individual file detect which service I'm paying for and then adjust itself accordingly? Why must I maintain three DRM'ed versions of the same song?
Is that the sort of publicity Hughes and the RIAA think will work to the advantage of the music industry? C'mon.
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