Killick <—very serious
Band of Skulls @bandofskulls
In a triumph of common sense, Triton Media LLC was found liable for contributory copyright infringement and inducement of copyright infringement “by operating and providing material assistance such as advertising consulting and referrals” to drive traffic to pirate websites.
Funny, that sounds just like Google Adsense.
According to Torrentfreak, a French BitTorrent operator is trying to get around the French government’s new anti-piracy administrator by establishing a VPN for thieves in…Canada! (MTP readers will remember Torrentfreak as one of Michael Geist’s outlets to drive traffic to the CCER form letter that was used to try to tweak the recent Canadian copyright consultations according to Canadian Richard Owens–see “Noises Heard: Canada’s Recent Online Consultation Process–Teachings and Cautions” published on the IPOsgoode intellectual property blog at the prestigious Osgoode Hall law school in Toronto and “Re-doing the Math” by Canadian novelist John Degen).
And the Canadian government just lets it happen.
(For those who do not recognize the name, Michael Geist is aka “he who shall not be named,” according to a prominent Canadian artist), or alternatively “the wonderful Michael Geist” according to Lester Lawrence “Ace” Lessig III, author of “The Starving Artist Canard” among other works. Mr. Wonderful is advisor to the U.S.-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and the paid consultant to Industry Canada. SG-CIPPIC‘s external advisory board includes Lessig the American, the American EFF legal director, the American director of the American EPIC, and the American Pamela Samuelson, who is also a board member of the American EPIC and the American EFF—in short, 100% Yanks. So this Canadian affiliate of the Samuelson-Glushko system is to IP in Canada kind of what Alcoa of Canada is to Canadian industry.)
See also: A Dedicated Group of Likeminded People
Just in time for Halloween, Eric Schmidt had yet another one of those slips that even his fans are finding hard to defend in Google’s quest to organize the world’s information whether the world likes it or not.
Schmidt tells the world–or at least Parker/Spitzer–that if you don’t like street view–just move it. “‘Street View, we drive exactly once,’ Schmidt said, referring to the vehicles mounted with cameras sent out to take photos for the service. ‘So, you can just move, right?’”
So creepy Dr. Smarty Pants does it again, and what’s interesting about this one is that no one from Google is trying to pass it off as a bad joke. No, no. Google is so arrogant that they can’t even make a joke out of their joke CEO when they need to. Sez the flack: “’The point Eric was making is that our Street View service provides only a static picture in time, and doesn’t provide real-time imagery or provide any information about where people are. Of course, we also allow users to request that their home be removed from Street View.’” Oh, I see. “Eric” was making a point. There was a rationale, an empirical truth, a “point” being made. And silly me, I just thought it was either colossal arrogance or a ham handed gaffe.
(Read that Google “correction” closely because you can bet that Google did: “we allow users to request that their home be removed from Street View”. How about asking homeowners if they will allow Google to include their homes in Street View in the first place? And just because you can request to have your home removed from Street View (maybe after your daughter is stalked, perhaps), doesn’t mean that Google will actually remove it.)
Google does not deny that Schmidt actually meant they’ll post pictures of your house on the Internet and if you don’t like it you can move. Once again, Google creates the impression in a whole lot of people (judging by the Twitter stream) that Google really is that arrogant–they don’t care about your little house and if you don’t like it try suing them. Anyone who has ever dealt with Google knows that they really are that arrogant, but now there’s proof that resonates with the average person.
In 30 countries.
So once again, creepy Dr. Smarty Pants demonstrates that he’s so creepy he can’t help himself.
If this cloven hoof in mouth problem was just a one-time thing, that would be different. But it happens so frequently, you have to wonder what’s up with the board. How much longer are they going to let this guy keep his job? What will it take to fire him? Will it take villagers with pitchforks bringing an analog solution to a digital problem?
And on the same day that Dr. Smarty Pants appeared on Parker/Spitzer, Reuters reported that:
“Google Inc acknowledged that a fleet of cars equipped with wireless equipment inadvertently collected emails and passwords of computer users in various countries, and said it was changing its privacy practices.
Google said it wants to delete the data as soon as possible. Google announced the data collection snafu in May, but said at the time the information it collected was typically limited to “fragments” of data because the cars were always moving. [Ah, of course. Just like you can't use a cell phone in a moving car. OK journalists, nod your heads and back to sleep.]
Since then, regulators in several of the more than 30 countries where the cars operated have inspected the data.
‘It’s clear from those inspections that while most of the data is fragmentary, in some instances entire emails and URLs were captured, as well as passwords,’ said Google Vice President of Engineering and Research Alan Eustace in a post on Google’s blog on Friday.” (Emphasis mine.)
Let me rephrase that spin: Google got caught.
And in the places where they weren’t caught they didn’t stop collecting the data (or “warcharging” as some have called it). So attention privacy regulators: Google will play catch me if you can with privacy the same way they play “catch me if you can” with content. Their approach is the same whether it’s Street View or YouTube.
If you acquire the technological means to catch Google in the act and you have the litigation resources to make them stop–like the nation states that Google and their fellows would prefer to “geek around”–then to the extent they are caught, they will do the minimum they are forced to do to comply with the laws of the nation state doing the catching.
Meaning, in the world of Dr. Smarty Pants, might makes right.
Because after all–you can always opt out. You can always get away from Google.
You can always move.
And you can always change your name.
At least until they find you.
On Google Earth.
See also: The Creepiest TV Moments of Google’s CEO
It is Good to be King
I thought I’d take a look at a paper by a Canadian academic on the subject of digital rights management, or what some in the professoriate call “digital locks”. (I still can’t quite shake the image of a virtual dominatrix instructing “show me your digital locks, geek boy”, so I think I’ll stick with the term “DRM”.)
That this issue is being addressed by a Canadian is important because there is a new copyright law in the Canadian Parliament which includes some rules that would prohibit circumventing digital rights management tools. Since these rules are designed to help protect creators and copyright owners—both Canadians and non-Canadians–who choose to use DRM, there is, quite naturally, a continued drumbeat from You Know Who and his academic brethren about how digital locks are the Downfall of All That Is Holy and how these protections must be defeated.
Given the title of this Canadian paper, “Digital Locks and the Automation of Virtue,” one might have expected it to deal with the ethical issues of the massive theft of intellectual property online, or the subordination of human rights of artists to the rights of machines or some interesting angle like that. No such luck.
But there was something interesting and instructive about this paper before I even got a chance to read it—it was protected by DRM. Yes, “Digital Locks and the Automation of Virtue” by Ian Kerr is made available under the Very Serious Creative Commons Corporation license (was it the Nondescript Nondenominational No Indemnity Non-License? I get so confused by them all). And just in case you didn’t understand that you were agreeing to the DRM in the CCC license, there’s a little check box for your assent to the Corporation’s terms before you can access the PDF. DRM is a Very Serious License, you see.
Kerr’s article is a Very Serious academic treatment of DRM, and therefore we should not be surprised by the Very Serious conclusion that DRM is bad and is a gateway restraint that leads to the Decline of Civilization As We Know It and the Moral Decay of All Things. One might wonder how anyone can seriously get to a moral discussion of protecting content from theft without first having a moral discussion of the massive theft that occurs online every day whether you are talking about commercial crime, political crime or “my access to your information”.
A Knot Wrapped in an Enigma
Kerr treats us to a long and detailed account of the legend of the Gordian Knot, which he revealingly analogizes to—wait for it—wait for it–to DRM. However clichéd, why do I think this analogy revealing?
How is the puzzle of the Gordian Knot solved? By Alexander the Great with a sword. But is this really an apt analogy? Who would have been in a position to refuse Alexander anything—literally anything? (Aside perhaps from the ancestors of the Muj.)
I would suggest to you that the position that Alexander held in his time was exactly the position that every Very Serious hacker boy imagines he holds in the virtual world. Emphasis on the imagines. So when Kerr describes Alexander’s apocryphal sword cut as a “defiant, brute force solution of hacking the knot with his sword [that] has become a metaphor…for resolving difficult problems by unanticipated means,” I don’t think either the use of “hacking” or the fanboy context of the analogy to hackers are accidental.
I’m from the country and I’m not as smart as these city fellers, but it seems to me that the reason Alexander thought to cut the knot was much simpler–he was the king by divine right. And therefore his sword “hack” was actually legal. And how “defiant” can a solution permitted by law really be?
A kind person would say that these tired analogies are interesting. “Interesting”, but inapt.
So unfortunately, an article about a Very Serious topic starts off with a lengthy Very Silly premise.
Locks Keep Out the Honest People
Having started on a shaky premise, it will not be surprising that Kerr veers directly into a criticism of anticircumvention rules because “all locks can be broken”. Per Kerr: “Recognizing that all locks can be broken, many of those who employ digital locks have sought the further protection of law, lobbying lawmakers to make it illegal to circumvent digital locks.”
Another Very Serious argument—the dastardly users of DRM have the temerity to want the law to enforce their rights if someone hacks the DRM, or to continue the dominatrix metaphor, picks the lock on their property. So let’s just go to the heart of the matter—it seems that the argument is that the law should not recognize the individual’s ability to protect their property. So much for Moses. The Leviathan should make citizens litigate their right to call the police if someone breaks their locks. (Google would love that.)
And this is another place where all these arguments against DRM founder, at least to me. What is the argument for distinguishing a “digital lock” from a physical one? Why should one be treated differently than another? I would imagine that someone could make this argument (although I can’t imagine the argument being persuasive), but I don’t seem to see it.
DRM opponents trot out the argument that once you put DRM on something like work of authorship, the person with the key to the DRM can control it long after the copyright term is over. True. So here’s the solution—don’t buy it. There now. All better.
What Would Alexander Do?
But these academics who dream up these theories about DRM apparently don’t want consumers to vote with their purchasing power on what kind—if any—of DRM they want. (I would point to the effect that iTunes had on DRM-wrapped music as an example of those dollar votes.) The professoriate want to replace the decision making power of consumers with their own idea of what’s good for consumers. You have to ask yourself, what would Alexander do? And to whom?
Kerr concludes his paper with an argument that “…a successful, state sanctioned, generalized deployment of digital locks actually impedes the development of moral character by impairing people’s ability to develop virtuous dispositions, thereby diminishing our well-being and ultimately undermining human flourishing. It creates something that I shall call a ‘moral disability.’”
Now I find this, I’m sorry to say, to be actually beyond Very Silly, it is actually funny. But then I’m just a country boy from Texas and I’m not as smart as these city fellers so I’m probably missing a point that I’m just not smart enough to recognize. What I do recognize is that if you want to make moral arguments about DRM to me, the first thing you have to dispose of is the idea that the greatest mass theft in history–that gives rise to the need for DRM–is somehow ethically justified and is not itself a “moral disability”. And that protecting artist rights against that theft is not a just cause but rather a moral impairment.
They Call It Theft Because it is a Crime
Enforcing DRM is consistent with enforcing other laws protecting artist rights. I frankly don’t see what is so hard to work through about that. That is—if you wanted to protect artist rights.
U.S. Attorney General Eric Holder summed it up in a recent statement repeating the position of the Obama Administration about IP theft:
“For too long, these illegal activities have been perceived as ‘business as usual.’ But not anymore. As each of you knows, stealing innovative ideas or passing off counterfeits can have devastating consequences for individuals, families, and communities. These crimes threaten economic opportunities and financial stability. They suppress the ingenuity of our people and businesses. They destroy jobs. And they can jeopardize the health and safety of the men and women we are sworn to protect. Intellectual property crimes are not victimless. And we must make certain that they are no longer perceived as risk-free.”
So there’s no doubt about where Eric Holder stands on this issue—right where the Governor General of Canada stands as enunciated in this year’s Speech from the Throne. Doesn’t sound like DRM has lead to the Moral Decay of Civilization, at least not so far. It sounds like what the Attorney General and the Governor General are concerned with is the moral and economic decay from not enforcing the laws and from not enforcing artist rights.
I would point out an excellent article in Scouting Magazine written and read by those who must deal with the results of sillyness:
“…[M]usic piracy represents more than just an economic issue; it’s also an ethical issue. And it’s one that goes beyond the Top 40. After all, if you get your music free, why not get your term papers free, too?
Dr. Tony Aretz, a longtime Scouter [and academic]…knows the dilemma well. ‘We get students in class who don’t see any problem taking something from a Web site, putting it in a paper, and not attributing it to its original source,’ he says. ‘It’s mind-boggling.’ Part of the problem, Aretz says, lies in the Internet’s free-for-all nature, where users get all sorts of content free—even information from newspapers that they would have to pay for in the real world…[But i]f you buy an album on iTunes, you can burn it to a CD for your own use. However, if you buy a CD and lose it, you can’t legally download the album without paying for it a second time.
Adults usually can navigate such distinctions. But adolescents can’t, according to Aretz. ‘They’re a group that looks at the world as very black and white; they don’t see gray,’ he says. ‘And the way people who can’t see gray deal with gray is that they force it into their black-and-white world, even if it’s incorrect.’
So how can Scouters teach ethical behavior related to music downloading? One way: Set a good example. When you haul around Scouts in your car, for example, only play CDs that you’ve purchased.
Piracy relates to the concept of honor, but Aretz points out that it also relates to bravery.
‘Technology makes it easier to be dishonorable in some ways. Therefore, you have to have more courage to act honorably.’”
Meaning having the courage to respect the rights of others. And that is not silly at all.
Google India has launched a music search platform, which has two interesting features: First, the music search functionality apparently filters out most or all illegal links. For example, if you search for the world-renowned R.D. Burman you get 2,300 or so hits. We haven’t been through each of these to check, but eyeballing the list suggests that these are links to lawfully distributed music.
The second interesting feature is at the top of the page: try the same search in the “Web” search. One click away. This search has 58,000 or so hits including abmp3.com which not only has a bunch of R.D. Burman tracks in mp3, but conveniently has the Rolling Stones, The Beatles, and Rilo Kiley.
So in other words, Google Music Search can block and filter illegal links, but for some reason Google web search cannot.
I guess filtering web search would be evil, don’t you know.
New Music 10-22-10: Jim Bryson and The Weakerthans, Pegasus Bridge, Railroad Earth, Clare Maguire, Le Volume Courbe
Railroad Earth @railroadearth
Clare Maguire @claremaguire
Interview with Songwriters Guild of America President Rick Carnes on Choruss, the Songwriters Association of Canada and Global Licensing
The following is an excerpt from an interview with Rick Carnes, President of the Songwriter’s Guild of America. The full length interview runs in Music Tech Policy Monthly.
MTP: In the news this week, Jim Griffin is quoted as acknowledging he underestimated the complexity of his Choruss plan which he largely blames on there being an inconveniently large number of songwriters. To me, this is analogous to saying that you would like Charley Tuna if it were just more like Bevo [the famous Texas longhorn]. Do you understand why Griffin would blame songwriters for his problems?
Carnes: It is a sign of progress that Jim now understands that his solution was too simplistic. Just waving the magic wand of a monthly fee over illegal file sharing is never going to solve the problem. Jim and I have discussed Chrouss in private and in public forums and though I have always supported any idea that will fairly compensate songwriters for the use of their works Jim could never explain, at least to my satisfaction, how Choruss would be able to deliver on that promise. When pressed to answer some of the hard questions about accounting and distributing the money his answer seemed to be ‘let’s try it first and see if we can solve the problems later’.
That’s not going to work with a Copyright related business where all the participants have to agree upfront. The solution does not reside in reducing the number of songwriters nor in striping songwriters of the right to say no. The music pirates have already done that! The answer is to show songwriters a business model that is so compelling that they will all say yes (Like the Performing Rights Societies have done). Hopefully, Jim will find that business model instead of pursuing an attack on Songwriter’s rights. I understand his frustrations and why he might be tempted to blame songwriters for the enormity of the problems he is facing, but we didn’t create the problem, we just created the songs. It is the job of entrepreneurs to find a creative way to solve the problems and get buy-in from all the players. Choruss just isn’t there yet.
MTP: You and we have both been critical of Griffin’s plan, which is remarkably similar to plans advanced by the Electronic Frontier Foundation, the Songwriters Association of Canada, global licensing in France and both Terry Fisher and Lawrence Lessig. These all seem to end with a statutory license to impose these ideas on songwriters whether they like it or not. I thought we already had a statutory license in the US and all these p2p, Bit Torrent and cyberlocker services routinely ignore that license as it is. Do you understand this yearning for government imposed controls and do you think a Griffin license would fair any better with thieves than the current compulsory mechanical?
I can’t support any theory or plan for a blanket license for unlimited P2P downloading until I know how Songwriter’s earnings and rights will be affected. I’ve never met anyone who would leave a paying job for a job where the new pay scale was not stated. It is unreasonable to expect songwriters to behave any differently. Of course, we have been told by Jim and others that the alternative is the theft of our work and we should take whatever we can get instead of losing it all. At the Songwriters Guild we have heard this very same argument from every user of Copyright for the last 80 years. Our standard remains fair compensation for the use of our work.
With Choruss I never found out how much I would be compensated for my work. Under the current US statutory license (yes, there is one!) I get 9.1 cents per download (if I own 100% of the song and the publishing rights). Under Choruss I was only given assurances from Jim that there would be a lump sum of money collected and that I would get my fair share of it. That wasn’t enough detail for me to sign on to the plan. Since Choruss would be competing against other services like iTunes , which operate under the current statutory license, it didn’t make business sense to jump to a competitor that couldn’t give me a comparable price or proof of more transparency in payments.
The EFF doesn’t have a plan, they barely have a theory. I have seen EFF support Grokster and I have seen Fred Von Lohman, their former director, get called out by the judge in the Limewire case for instructing Limewire in the intricacies of hiding, or rather, not collecting evidence of infringing files on their service. So I don’t think they have any place in a legitimate discussion of how we develop a workable system of digital music delivery.
The SAC is a serious group of songwriters who are actually trying to solve the problem. I travelled to Toronto to meet with them a couple of years back to discuss their plan to monetize illegal P2P file sharing. Their plan left a lot of questions to be answered but we trusted that the Canadian songwriters would do their best to get it right. The one condition for our support of their plan was that there must be an opt-out included for songwriters who don’t want to participate. The SAC agreed.
The SGA will continue to support the initiative as long as there is an opt-out included. Without the opt-out we cannot support them without more discussion about the details of the system. One of the things we tell songwriters is never sign a contract without understanding all the details. We adopt that same attitude in supporting legislation.
France seems to be trying to address the problem from the top down. I don’t know if subsidizing digital downloads in conjunction with a global licensing scheme and a three strikes regime will work like the proverbial carrot and stick, but the French songwriters we will soon find out. I hope it is a positive result but I don’t know if it is something we would want to import. American Copyright law and the American market are different from France.
Lessig and others have conflated the ideas of Media reform, free speech, and privacy concerns with an anti-Copyright crusade. Like all crusaders they are so focused on their ‘noble cause’ that reason has escaped them. When songwriters lose their jobs due to piracy they consider us collateral damage in their quest to undermine the giant corporations that ‘control’ the media. ‘Holy warriors’ like Lessig see the world as a binary place. It is an ‘us or them’ world they inhabit. Crusaders are seldom the people who produce a lasting solution to any problem. I have never seen a coherent plan for the future of digital content distribution advanced by Lessig and I don’t expect to.
I certainly understand the yearning for a Government solution to the problems of digital music delivery on the internet. But Government solutions to extremely complex problems can create their own set of problems. The 1909 US Copyright law stuck songwriters with a 2 cent statutory rate with no way to change it. That turned out to be a disaster.
Currently, the FCC’s proposed Net Neutrality rules sound like a great idea on the surface, but when you dig a little deeper you realize that, if implemented, the ‘level playing field’ for all internet services these rules aim to create will keep legal content distributors from ever being able to distinguish themselves from sites like Pirate Bay. Government certainly has a place in the solution to our problems, but at the moment it might be better directed toward the enforcement of current Copyright law on the internet rather than new licensing schemes.
As you point out, there are many services that routinely ignore the current laws. There is little reason to believe they would follow new laws, either.
It will come as absolutely no surprise to MTP readers that Choruss is no more. Why? Inexplicably, because its founder says he underestimated the complexity of changing everything about the way the world’s artists and songwriters choose to be compensated. Also apparently underestimated the complexity of file identification for the world’s music.
And who is the culprit in all this? The songwriters. Of course. Blame the songwriters, the one group whose rights are routinely ignored, the one group for which there is already a compulsory license available to lawfully use their works. Just not the compulsory license that Choruss wants.
No, what we need is a new compulsory license to legislate the Choruss business model, according to its founders.
So that new compulsory license can be ignored just like the current one.
And oh, by the way–legislating a compulsory license is a country-by-country process just to avoid wasting a bunch of time again. Unless, of course, we are being told to ignore the nation-state.
Here’s the truth–the reason that failure stalks the business models of Choruss, the Songwriters Association of Canada, the EFF, global licensing in France, and whatever in the world they are trying to do in the Isle of Man (which I still don’t understand) is not because the licensing the rights is so hard, it’s not, I’ve done it.
It’s because the deal stinks.
And here’s a newsflash–if you walk around with a stinky deal, do not be surprised if people say your deal stinks. And they’d rather take their chances that the digital society will come to live within the law rather than take your stinky deal.
But do not blame the songwriters.
See also: Great News Sultan: Part 2
See also: The Near Future of Online Licensing