August 28, 2008 | Comments: (0)
Chinese democracy meets U.S. justice
Yesterday, FBI agents raided the Los Angeles home of 27-year-old blogger Kevin Cogill and arrested him. Cogill's crime? He uploaded nine unreleased tracks from the upcoming Guns N' Roses album to his blog.
The album is titled "Chinese Democracy." Now there's an oxymoron for you.
Cogill admits to posting the files last June so GnR nuts could stream them off his music blog. He took them down when he received a cease and desist letter, and cooperated with the FBI in its investigation. According to Wikipedia (admittedly not the most reliable source) six of the songs had been made available in some other form and three were new.
Now Cogill's looking at three years in the pokey and fines of $250,000, plus whatever damages the band might choose to pursue.
The legal argument here is that posting files for free kills legitimate sales of the music. (And Lord knows GnR must need the money -- they've only sold 90 million records during their career.) But Cogill didn't make the files available for downloading. He streamed them to a player on his blog.
If someone can explain to me how streaming music cuts out legitimate sales, I'd like to hear it. Don't we have an invention that does something very similar called ... radio? Hasn't that been the prime marketing vehicle for the recording industry for the past 50 years?
There's only one rational explanation for a deed so trivial to get this kind of attention. Someone with some serious juice is leaning on the feds.
Now I mean no disrepect to the hardworking guys and gals in blue suits and buzz cuts. They have a tough job and they seem to do it pretty well. In fact, the FBI has more on its plate than it can possibly handle. So to send five agents to arrest a scruffy blogger for streaming a handful of MP3s almost certainly means somebody pulled some strings.
Let me posit this hypothetical scenario. Recording industry mogul hears about the scruffy blogger, goes postal, calls his highly paid lobbying firm on K Street. Lobbyist contacts senator on the Judiciary Committee -- say, someone with a history of pushing RIAA-friendly legislation in return for major campaign donations (Orrin Hatch, your Blackberry is buzzing).
Senator calls the FBI director, who calls the director of the L.A. office. PR firm for recording mogul selectively leaks story of arrest to a handful of news outlets. Next thing you know Cogill is in cuffs and everybody has a nice juicy story to run on how the Internet is destroying the recording industry.
(News flash: The recording industry is destroying the recording industry. Can't happen too soon, in my opinion.)
This truly is Chinese democracy in action. The ruling party makes the rules and breaks them when they feel like it. They selectively prosecute those they perceive as enemies, while failing to act on far more serious breaches of the public trust by their allies. I don't think I need to list the many examples we've seen over the last eight years.
There are lots of ways this situation could have played out short of bringing in the feds. Guns N' Roses' management could have accepted Cogill's decision to take down the files and been done. They could have asked him for a royalty fee equivalent to what radio stations pay and continued to stream the music to fans hungry for more GnR. Or maybe they should have just thanked Cogill for putting the band back in the spotlight, 13 years after they last staggered out of a recording studio.
What do you think? Is three years in prison for nine songs a fair penalty? Who else deserves some time in the pokey? Post your responses below or email me: cringe (at) infoworld (dot) com.
Posted by Robert X. Cringely on August 28, 2008 11:52 AM
July 20, 2008 | Comments: (0)
The RIAA vs the mothers of prevention
The recording industry has finally met its match, and it's one bad mother -- or, more accurately, several good ones.
The first good mother in our saga is Stephanie Lenz, who posted a 30-second video of her son Holden learning how to walk on YouTube in February 2007. In the background Prince's "Let's Go Crazy" is just audible and the toddler bops gleefully to it.
Naturally, Universal Music responded to this almost unbearably cute video by sending Lenz a DMCA Takedown Notice ordering her to remove it from YouTube, claiming it infringed the rights of both Universal and the Artist Formerly Known As.
After a flood of bad publicity Universal relented and let her repost the video. But that wasn't enough for Lenz. She wanted to keep the record companies from intimidating other innocent Netizens. So with the help of the Electronic Frontier Foundation, she sued Universal
Last Friday a federal judge in San Jose rebuffed Universal's attempt to have the case dismissed, calling it a "case of first impression" that addresses an issue not yet decided by any court. One way or another Lenz v. Universal could end up establishing a precedent -- by either defending the concept of fair use or affirming the divine right of corporations to do whatever they please under the DMCA.
But that's hardly the only defeat the industry has suffered at the hands of a determined mom. Last May, an Oregon court ordered Atlantic Records to pay Tanya Andersen more than $108K in attorneys fees after it wrongfully accused her of being a music pirate. The record company dropped its case shortly before Andersen accused them of hiring investigators to stalk her 8-year-old daughter and pretend to be the girl's grandmother to extract information from her. She's now counter-suing them under federal anti-racketeering statutes.
In February 2007, Deborah Foster and her daughter Amanda were awarded $66K in court fees after Capitol Records dropped its file-sharing suit against her. (It's unclear whether Capitol has actually ponied up any cash yet, though.) Meanwhile, the judge in last fall's Jammie Thomas trial says he may have erred in telling the jury that making files available in a shared folder was the equivalent of distributing them illegally, even if no one but the RIAA itself downloaded them. The instruction was key to the jury's fining the mother of two $222K for sharing 24 songs. Thomas may yet get another chance to do battle with the RIAA.
In its attempt to terrorize the record-buying public into giving up its file-swapping ways, the record industry has committed all kinds of minor atrocities -- from threatening 12-year-old honor students and computer-illiterate grandmas to suing dead people. Remember, this is an industry that had close connections to the mob for decades. They may wear Brooks Brothers suits and sport Harvard degrees, but their tactics haven't changed all that much. It's entirely fitting Andersen chose to sue them under RICO laws originally created to bring down organized crime.
Free music has been with us for tens of thousands of years -- long before the first cave paintings. The concept of selling music to the public has been with us less than a hundred years. More and more musicians are distributing their own music, even offering it up for free and making money through live performances and ancillary products. If record companies suddenly disappeared overnight, would anyone outside that industry truly miss them? I know of a few mothers who wouldn't.
Got strong opinions on the RIAA? Swap them below or share them with me at cringe (at) infoworld (dot) com.
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Posted by Robert X. Cringely on July 20, 2008 05:44 PM
June 04, 2008 | Comments: (0)
Do not attempt to adjust your Internet
It's been a wild week here in Cringeville. My blog posts on YouTube v. Viacom and the FCC's proposal for a pørn-free wireless Internet have inspired raging debates about copyrights and corporate rights, free speech and free sex. Here are some of the highlights.
First, longtime Cringe fan L. B. disputes my notion that most "pretty much all men" have surfed adult sites. He adds
And despite what you say about the First Amendment, our Constitution protects speech (which generally enlightens humans), not pørnography (which debases them). We could argue all day long about what constitutes pørnography (and even "pørnographic speech)", but the Supreme Court, even in its present liberal iteration, has generally ruled against pørnography, so you won't find much comfort there either.
(OK, show of hands: how many folks agree the Supremes are in a "present liberal iteration"? Maybe he's confusing them with the Motown group.)
It's true that when they created the First Amendment, Jefferson, Madison, Franklin et al probably did not have Girls Gone Wild in mind (well, maybe Franklin did). What they had in mind was protecting unpopular speech: the right to say things even a majority of the people (or one leader with a vindictive streak) did not much like. The problem is that old slippery slope, or what I like to call the Lays Potato Chip syndrome -- you can't censor just one. Once you start shutting down Web sites, it's hard to stop. It's no secret governments that impose the strictest limits on adult content also typically do the most to squelch political dissent.
A fair number of Cringesters noted that FCC oversight works fine for network TV, so why not the Net? All I can say is.... have you watched much network TV? Do you really want the Internet to look and act like that?
Meanwhile, over in the non-adult section of Web video, we've got a heated discussion over what studios and conglomerates should and shouldn't have the right to do with the content they're desperate to monetize in every possible way. Poster Redgum summarizes the conflict eloquently:
Copyrights like private ownership rights should be protected by law. This is where it gets sticky though -- do you completely shut down what is otherwise a fertile ground for creativity in the name of protecting existing copyrights, or do you find a better way to enforce existing laws? Personally, I think that if we continue to ban, prohibit, and shut down such avenues of access, we lose far more than what we perceive we are losing.
The common thread between these two topics is control. We're all used to a freewheeling, unregulated, Hell-bent-for-whatever Internet. Now that the Net is growing up, we're caught in the middle of a power struggle between corporate titans, government bureaucrats, and Just Plain Folks over who gets to call the shots in the 21st century economy. You can probably guess who I'm rooting for in this fight.
Finally, a word about the so-called phonecablopoly, from someone on the inside. Frequent Cringe correspondent B. D., who works for a wireless carrier/ISP that shall go unnamed (but rhymes with "horizon") says I'm being too hard on Ma Bell's kids. He's actually drowning in a sea of broadband choices:
At my house I can count (wired) TXU Electric, AT&T, and Charter Cable... plus (wireless) AT&T, T-Mobile, Verizon, Sprint, and several other smaller wireless carriers whose names escape me. Then there’s over-the-air digital TV broadcast plus Dish Network and DirectTV, plus another wireless Digital TV carrier whose name also escapes me... The day the electric company brings their Internet service online through the electrical power cable, we’ll have yet another choice though I for one have no intention of plugging up a modem directly to 120 VAC to get Internet (!). How many other choices DO we need in one place?!
(B. D. wants to make it clear he's speaking entirely for himself and not for his company, lest he be hauled off to the corporate dungeon and whipped with RJ11 cables.)
We control the horizontal, we control the vertical. And by "we," I'm not talking about you or me, Kemosabe.
Have we reached the Outer Limits? Would you prefer a regulated Internet, free from its sin-sodden side? Post your thoughts below, email me at cringe (at) infoworld (dot) com, or take the BuzzDash Quiz here.
Posted by Robert X. Cringely on June 4, 2008 05:25 AM
May 28, 2008 | Comments: (0)
Frankly, I thought Viacom's $1 billion law suit against YouTube was dead. YouTube has been kicking people off its site left and right for posting copyrighted material, even if they didn't always deserve it. And Viacom had started allowing its best material -- like South Park and The Daily Show -- to be shown on the Web for free. It sure sounded like Peace in Our Time.
Apparently not. Earlier this week, Google filed its response to Viacom in court, raising the specter that a loss could put the very nature of the Net at risk -- “threatening the way hundreds of millions of people legitimately exchange information.”
As part of its defense, Google claims YouTube has been following the safe harbor provisions of the DMCA, which essentially says you're fine as long as you rat out and/or shut down those who offend. For ISPs, safe harbor translates into handing personal account information to the RIAA after subscribers have been accused of swapping files online. (Even if you happen to be dead at the time.) For YouTube, it means removing offending clips and shutting down accounts -- even if the clips don't necessarily break copyright laws.
That's not enough for Viacom. They want to take YouTube down. But their claims about the damage they've suffered at the hands of YouTube stretch credulity beyond the breaking point.
For example: Nearly every story on this topic carries Viacom's claim that Al Gore's eco-doc An Inconvenient Truth has been viewed on YouTube “an astounding 1.5 billion times.” Viacom's actual complaint doesn't say that. It alleges that 150,000 “unauthorized clips” owned by Viacom (including An Inconvenient Truth, The Daily Show, and The Colbert Report) have been viewed a total of 1.5 billion times on YouTube – an average of roughly 10,000 times apiece, if my third grade math skills haven't completely failed me.
An Inconvenient Truth grossed almost $50 million worldwide at the box office. (For a 100-minute Powerpoint presentation by one of the world's most boring bipeds, that's phenomenally good.) It made another $32 million in DVD sales. Let's assume $5 per ticket and $16 per DVD, just to make the math easy. That means, at minimum, 12 million people paid to see that movie. Yet, somehow, thousands of YouTubers watching two minutes of Al Gore holding a pointer are depriving this $11.5 billion company of desperately needed income.
When someone posts, say, a two-minute segment from The Colbert Report, what has Viacom lost, exactly?
1. YouTubers are depriving Colbert fans from entering into their Wayback Machines to go back in time and rewatch the original broadcast.
2. Colbert fans will no longer TiVo the show it the next time it airs, depriving them of the opportunity to watch it while fast forwarding past the commercials that have already paid for the program.
3. Viacom would be deprived of the income it would receive from selling the Complete Works of Stephen Colbert on DVD – except that the people most likely to buy the DVD are the ones who watch (and post) Colbert clips on YouTube.
4. Viacom would also be deprived of people who encounter Stephen Colbert for the first time on YouTube and say, “Is that guy kidding or is he really a right wing whack job? Let's tune in and find out.”
Fact is, Viacom isn't afraid of YouTube cutting into TV viewers or DVD sales. They're afraid of YouTube cutting into the future of broadcast and cable television: Internet video. You know -- the market that didn't exist until it was practically invented by this little Silicon Valley startup called YouTube?
This isn't about copyright, it's about competition. Like most everything on earth, it all comes down to money. Not just the billion Viacom is suing for – the tens of billions that will come later, when we all have IP-driven TVs that get their content off the Web. That's why Viacom decided to set Jon Stewart free on the Web. They weren't doing it to be cuddly. They want to kill off the amateurs so they have the field to themselves.
Viacom's big problem? They're fighting the same battle the record companies have been fighting. Every time the RIAA took down another file-sharing network, three more sprang up to take its place. Take down YouTube, and the videos will just show up somewhere else – or, more likely, a dozen other places.
Even if Viacom wins this battle, they'll lose the war. The question is, what will we lose in the meantime?
Would you rather watch YouTube than TV? Post your thoughts below or email them to me direct: cringe (at) infoworld (dot) com. Swell swag awaits the tastiest tips.
Posted by Robert X. Cringely on May 28, 2008 04:16 AM
May 14, 2008 | Comments: (0)
YouTube, copyrights, and copy wrongs
The longer I stay in this business, the more I think I should have listened to my mother and become a copyright attorney. Don't get me wrong -- I love digging for dirt and punishing the technologically wicked, but just think of the employment opportunities.
We're in the midst of copyright hysteria, fueled by the recording industry, movie studios and TV producers terrified of how the Net has flipped their distribution models. Example one: a federal judge whacking TorrentSpy with a $111 million judgment, without even ruling on whether a search engine should be held liable for the results it produces.
Sometimes these copy wrongs can have personal repercussions. Reader J. E. writes:
My son is very high functioning on the autism spectrum; today, he'd get a diagnosis of Asperger's Syndrome. He's also a budding animator and animation fan, who has used YouTube to post his own animations as well as short clips he wanted to share with others who shared his interest. Unfortunately, YouTube recently suspended his account after he posted a 30-second clip from a Sponge Bob episode, because he'd gotten a number of prior takedown warnings for similar short clips. I wrote the below letter to the copyright contacts at YouTube and Google, and got back a form response about the DMCA; I tried again and got no response.My son is devastated about being unable to share his work with the world, to the point that he was literally trying to hurt himself in anguish tonight, and I promised him I would try to do something more to get his account reinstated.
(I have contacted YouTube on J. E.'s behalf, and an answer is due shortly. I'll post an update when it arrives.)
To be fair, expecting YouTube to know the personal details of all of its users is asking a bit much. To them, this boy is just another Sponge Bob Pirate. But the notion that posting any clip, of any length, of any copyrighted show automatically violates the content owner's rights is equally silly. (Could someone out there in Cringeville please explain to me how a 30-second clip of a show is essentially different from a commercial promoting that show?) Yet that's the nature of copyright law today.
Here's a classic example. Last August, YouTube removed a video posted by North Carolina filmmaker Christopher Knight because the clip was originally shown on VH1's Web Junk 2.0 show. The problem: Knight created the clip in the first place, and VH1 used it without even notifying him. (After two weeks of back and forth, Knight convinced YouTube to restore the clip. His account of how he did it is here.) So VH1, a Viacom company, felt it was perfectly within the boundaries of fair use to show Knight's work on TV; but once they showed it, they decided they owned it. Ultimately they didn't own it. But if Knight hadn't fought back, the result would have been the same.
Overzealous attorneys, badly written laws, content producers who believe they have a divine right to everything they've ever touched for all eternity, and cowering Web 2.0 companies primarily interested in CYA -- it's a bad ugly mix.
It's only over the last year or so that the buggy-whip manufacturers and manure haulers of the late 20th century have realized they're in danger of extinction. Viacom, owner of the rights to both Sponge Bob and VH1, made a deal with Joost to deliver some of its content for free over the Web last year and made The Daily Show videos available free on its own site.
Hulu, Veoh, and other video sites are making similar deals with Hollywood. It's time to add a little common sense to the stuff people post to YouTube as well. If free video is good enough for Jon Stewart, why not for Sponge Bob and one of his biggest fans?
Does video want to be free? Post your opinions below or email me at cringe (at) infoworld (dot) com. Top tipsters qualify for copyright-free swag.
Posted by Robert X. Cringely on May 14, 2008 06:50 AM
May 25, 2007 | Comments: (0)
Remember spoon-bending psychic Uri Geller? The cutlery-abusing 70's icon got bent out of shape recently after a video clip debunking his paranormal abilities surfaced on YouTube. Geller sent a DMCA take-down notice to YouTube, claiming the clip infringed his copyright. YouTube removed the clip and suspended the poster's account. (It's back, though – and you can watch it here.)
The problem? Even the psychic's own attorney only claims 10 seconds of the 13-minute video infringed on Geller – a portion any sane person would agree qualifies as fair use. A more likely reason is that Geller is trying to bludgeon his critics into silence. The Electronic Frontier Foundation certainly thinks so; it's suing Geller under a provision of the DMCA that makes it illegal to issue takedowns on stuff you don't actually own. (The EFF won a similar suit against Diebold in September 2004.)
Gee, you'd think he would have seen that coming.
In other DMCA news, Safwat Fahmy, CEO of SafeMedia, has issued a press release decrying the scourge of Internet Piracy. Among other things, Fahmy notes that fileswapping is illegal, sucks bandwidth, saps productivity, exposes your computer to malware, and hurts the “little people,” as they say in tinsel town:
Most artists and actors are not the superstars making millions. Plus there are the sound mixers and engineers, gaffers and best boys, office clerks and production assistants. It's a vast group of behind-the-scenes workers that help bring the final product to completion. These are the people hardest hit when a studio or label is forced to make cuts due to decreased revenues.
Fahmy apparently plans to repeat all this when he testifies before Congress on June 5. Not coincidentally, SafeMedia makes a network appliance that blocks illegal P2P traffic. They call it Clouseau.
You have to wonder about a company that names its flagship product after a bumbling fictional detective. Maybe Peter Sellers will rise from the dead and sue them. Under the DMCA, anything seems possible.
Should Congress be trusted to legislate technology? How about handling sharp objects? Post your responses below or email them to me here. Top tipsters may receive a Cringe bag (copyright InfoWorld 2007).
Posted by Robert X. Cringely on May 25, 2007 10:07 AM
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