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Jay Currie

One Damn Thing After Another

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Strike 2 for the RIAA

A Massachusetts court has blocked several recording industry subpoenas that are aimed at college song swappers, saying the universities involved are not immediately required to divulge the alleged file traders' identities.
The decision comes after officials at the Massachusetts Institute of Technology and Boston College challenged subpoenas from the Recording Industry Association of America (RIAA), saying the trade group's requests for information had not been legally filed.
link et seq. cnet
This is only the beginning of the RIAA's procedural headaches. The next step will be for individuals to challenge the subpoenas on substantive grounds, primarily on the question of the ownership of the files on their hard drives and on the ability of the RIAA to substantiate its claims of copyright ownership of some or all of the material in the shared folders.

Strategically this is a significant setback for the RIAA's campaign of litigation in terrorum.
"I hope this will give other people hope," said Cindy Cohn, legal director of the Electronic Frontier Foundation, a group that has emerged as the chief critic of the recording industry's tactics. "It will be a lot easier for people to address problems in the RIAA subpoenas if they don't have to go to D.C. to do it."
What initially looked like an unstoppable force is now being revealed as an ill thought out campaign of intimidation. I suspect the RIAA will let the entire thing quietly drop if it loses in California in the SBC case which seeks to impose costs on the RIAA.



via Matt Welch
As Matt says, take a look at Live Journal's demographics. If ever anyone wanted to hit the kid sweetspot this is the place.

New Blogs to read

Kevin Michael Grace turns out to have lived in spitting distance of the present Currie hovel and on the strength of locational association has added me to The Ambler. And vice versa.

I have also added the invaluable Paul Jané from Montreal. Jané's Frozen in Montreal tends to talk about stuff that I have never heard of and am delighted to find out about.

Finally, Being American in T.O. provides a wonderful window into just how perplexing Canada can appear to someone from the States. It turns out that BATO's proprietress, Debbye, "read your blog for months before I got up the nerve to try one myself". Which, no doubt, means she finally said - "Hey, if this bozo can blog so can I". Lots of good reading. Imagine what will happen to her when she comes out West and discovers there are at least two more Canadas to figure out.


And so to Bed

Laughing. Link


On Gigli
USA Today: "Gigli is the rare movie that never seems to take off, but also never seems to end. It tries hard to titillate, but ends up making audiences want to avert their eyes."
Boston Globe: "A failure on almost every level. ... An overlong, joyless, and inconsequential affair, full of dead air, and possessing only a few moments of jaw-dropping bad taste. It's a dull disaster." link paul jané

Cosh, Historian

Colby points out the wonderful hypocrisy of Canadian Politics when it comes to religion - we acknowledge the Anglican/Catholic division formally and we don't talk about it unless the Mullah of Calgary issues a fatwa on homosexual marriage and its supporters or a Sea-doo kinda guy takes the Flintsones as God's own history. We seem to want to pretend we have a state/church separation but, well, legally we don't.

A big difference between Canadians and Americans is that they formally separate religion and politics and then wither on about what a damned devout chap Clinton or Bush or, Lord forgive me, Reagan, is where as we really don't give a damn. Our sole objection is when a politician has the bad taste to be more than a little, to borrow a phrase from Paul Jané, keen on Jesus.

Short, Short, Short

While I don't pick stocks I do pick pigs - I got a girlfriend out of Nortel at $125.00, I rest my case - and SCO is a pig. Cheerfully announcing that it will provide protection against copyright infringement suits for people using Linux for the trifling sum of $699.00 until October when they will start charging $1399.00 Yeah, right.

Leave aside the merits of SCO's case - they may afterall be right - the fact of the matter is the geeks will never, ever, let it happen. Open source is their golden child and if you dare touch the penguin you are toast. Pay for it? Are you insane? And, as SCO is about to find out, seriously pissed off geeks are a force which is effectively above the law.

I suspect as I write there are people coding away to create bits of code which will bypass anything which remotely resembles SCO IP. Which is the legal fix. The extra legal fix will be a flat refusal and a very serious threat to just shut down Linux installs. Which would bring a good percentage of business in America to a halt.

there is a suspicion that SCO is simply a stalking horse for Microsoft which realizes, late as usual, that there may be as big a threat in open source as there was in the internet. There is evidence that Microsoft has licenced the SCO code as a first step in its attack on Linux.

Taking a leaf from the increasingly desperate RIAA playbook, SCO is ready to go to law to enforce what it sees as its rights. Which, themselves, are certainly open to dispute: afterall Unix came out of Bell Labs at the dawn of the computer era.

At a guess SCO is acting as Microsoft's terrier while Bill and Steve figure out a way of coming up with an attractive server product which doesn't require security patches every couple of weeks. It is sort of like the RIAA crying pirate while the music moguls try to figure out why Justin Timberlake albums aren't selling.

Tech meets law

IBM has annouced that it will build a 11 tetraflop Linux based cluster supercomputer with no less than 2636 processors. So, at $699 a cpu that means IBM needs to send a cheque to SCO for.... a little over 1.8 million dollars. It's in the mail guys, no really...would Big Blue lie to you?


How did those get there?

While I suspect the RIAA is already in the endgame on its down by law terrorist campaign (see below) one of the interesting defences which will be raised is the question of how, exactly, a song came to be on a particular hard drive. As this story on ZD NetUK about a man charged with having kiddie porn on his computer who later turned out to have had it put there by a Trojan horse infection illustrates, there can be all manner of innocent explanations for how a particular file gets on a disc.

And what about mislabelling. For my sins I have a copy of "Ricky's Girl" on one of my drives. Worse, the artist listing is Bruce Springstein. So, assuming the RIAA decided to go after me could they get me for this mislabeled piece of music? And, if it went to trial how long would it take to go through, say, 1000 songs to check the labeling and have the record company purporting to own the copyright prove that it had good title.

One word: quagmire.


RIAA v SBC Update

Declan McCullah writing at ZDNet has more on the decision by SBC (aka PBIS) to stand up to the RIAA and challenge the subpoenas the RIAA is firing out by the bushel.
SBC says it's received hundreds of DMCA subpoenas already, which makes the potential threat to its subscribers' privacy very real. It expects to receive thousands more, saying the RIAA contractors have "inundated" it with thousands of similar, illegitimate complaints of copyright infringement in the past. At the very least, the company says, the subpoenas must come from a California court instead of one in Washington.

SBC also says it needs a different subpoena for each individual (claiming that "multiple demands for individual subscriber information cannot be grouped in one subpoena"), that it needs additional time to respond to each subpoena so that its subscribers can be notified and possibly hire lawyers to oppose their subpoenas and that the DMCA does not authorize the subscriber's e-mail address to be disclosed.

Probably the most important argument is one that could hit the RIAA where it hurts the most: in the pocketbook. SBC argues that it and other Internet service providers "must be compensated for the substantial costs incurred in complying with these subpoenas" and cites rule 45 of the Federal Rules of Civil Procedure. It says the recipient of a subpoena must be "reasonably compensated" for the work required to prepare a response.
link et seq. zd net
McCullah's analysis is that SBC is looking to raise the costs faced by the RIAA. While this is true it is really the tip of the iceberg. As I wrote a few weeks ago - and I promise I will get my archives working - the RIAA is about to find out what a buzzsaw legal procedure and the rules of evidence really is. And, as may be dawning on it, it may also be realizing that even a few wins in the US are largely irrelevant in the face of the global reach of the internet. The DMAC does not apply in Canada nor does it apply in many other nooks and crannies that the internet reaches.

Now that SBC has filed it is a reasonable assumption that any number of other entities and private individuals will seek to have the subpoena process halted or to have subpoenas already issued quashed or suspended pending the out come of the SBC action. And that action could take a year or two until it is finally determined. Delay is not the RIAA's friend and its policy of litigation in terrorum is likely to die a very quick death. As soon as the possiblity of a defence is raised the terror is gone and with it the ability of the RIAA to misuse the subpoena power to achieve by procedure and threat what it is unable to achieve by adapting to the altered world of the internet.

Copyright Disconnect

Jonathan Zittrain writes a rambling appraisal of the disconnection between the dry and stiffly detailed rules of copyright and what actually happens on the internet and in peoples' homes.
It's time for us to wise up and to redraw copyright's boundaries so that the law and reasonable public expectations fall into better alignment with one another. To be sure, this may require more, rather than less, subtlety. We should treat protections for computer software in a different way than music, for example, and lengthy copyright terms should be available only to those who bother to check in with the Copyright Office every few years. But we do ourselves a disservice by fixating on current income structures and not thinking about future possibilities premised on amazing technological advances, especially when the rights at issue concern the flows of ideas, something fundamental to free societies.
link legalaffairs
The RIAA and MPAA are going to have to wake up to the fact their ability to enforce copyright directly has been overwhelmed by digital technology. Their only hope for survival is to figure out a way to obtain their income indirectly. But, at some point, the next generation of music and movie facilitators will arise and they will be entirely net driven. They may be the artists themselves or financiers who will, like record companies and film studios, advance money for production and take a cut of the earnings.

The big difference will be that net driven entertainment is unlikely to have the lopsided contracts common in the recording business or the limited gateways famous in film. Instead, artists will tend to licence their work in exchange for money up front. Film makers will tend to shoot their first few films with net distribution rather than theatrical release in mind. Copyright will still exist, but its value will tend to revert to the hands of the creators rather than the middlemen.

For example: propose Leonard Cohen put up a website which you could subscribe to for $1.00 a month. Whenever he finished a song he'd put it up on the site and subscribers could download it. Now according to the charts Cohen sold over a million copies of Ten New Songs. It would be surprising if Cohen actually saw more than a million in actual royalties on that album. Whereas if even half of those people signed up for his website Cohen would see half a million dollars a month which adds up. No Sony, no I-tunes, no middlemen - just a PayPal account and a debit card.

One Word

Paul Jané writes a moving and balanced account of his reaction to the gay marriage issue. After a good deal of reasoning and introspection he concludes:
I also have a few choice words for either side.

How much are gay activists willing to sacrifice for idealism? Are you willing to throw all of the benefits that you deserve out the window just for the sake of one word? It's unfortunate, but there are times when idealism should take a back seat to practicality for the sake of achieving results. Not to mention that, if you go for the compromise, things might change in the future, and you'll be able to enjoy the full benefits of married life in the meantime.

As for the keen on Jesus crowd, well, it's 2003, and I don't think that God is all that thrilled about some of his children being less appreciated than others are when they're leading perfectly law-abiding, loving, caring lives.
link frozen in montreal
I think he is on very strong theological ground notwithstanding the Mullah of Calgary's threat of eternal damnation to any politician who votes for a gay marriage law. His ground is weaker when he suggests compromise to the gay activists.

Compromise is not really on the agenda for people who simply want the rights other citizens have. I have already written - in my still lost archives - about the fact the state should not be in the marriage business at all; but if it is then it is a benefit which should be extended to every citizen. The compromise of calling gay marriage "a civil union" is a non-starter because, while it may confer assorted benefits it does not bring the community full countenance of the couple's commitment. It is a half measure and that, according to the Supreme Court of Canada, and my own fractured Anglican diocese is discriminatory.

There is another reason outside the law: a reason of the heart captured in Guy Babineau's piece in the Georgia Straight this week. The headline gets it: Four Funerals and a Wedding. Jané knows. He buried his brother Howard who died "from a perfect storm of diseases that AIDS made possible". For many of us, gay and straight, the early 90's were a perfect storm of funerals and missing friends. The cyclone of death which ripped through the gay male community left a core of survivors. They watched their friends and their lovers die and they learned, often too late, to value commitment, fidelity and love. Those are the virtues a marriage embodies and to deny gay people the right to marry is to deny that they can commit, be faithful and love. Which I will not do.


Not in Canada you say, Pity

Perhaps the music industry should have been more careful about what it wished for. The quid pro quo is that the private copying of sound recordings and the musical works and performances embodied in them is now clearly legal under the Canadian Copyright Act. This must not be done for the purpose of selling, renting, distributing, communicating by telecommunication or performing in public the copied material. Most, if not all, knowledgeable lawyers would agree that this allows the downloading and storing of music obtained from the Internet onto CD-Rs, flash memory and other media including PC hard drives. In this and other key respects, Canadian law differs from that of the United States.
link globe and mail
I actually might quibble in that sharing a file via the internet might be considered "communicating by telecommunication" but, hey, another chink in the RIAA armour is nothing to sneeze at.

The copyright levy on blank discs which the Canadian Private Copying Collective is now trying to have extended to other media including hard drives, effectively bars action by the RIAA or its Canadian counterparts by opening a large "But I have paid for the right to copy." defence. Which means that the RIAA's attempt to shut down music sharing in the US is doomed from the go. If you can't shut down Canadian's because the technology they use has already paid a copy levy then the super node will simply migrate to Canadian computers if the RIAA wins in the States- which it won't. It is, all in all, a pretty ill concieved legal strategy and the very last gasp of an industry mired in its own irrelevance.


I love Reuters' reporting of terrorist attacks,
Palestinian gunmen wounded four Israelis in a shooting on their car near a West Bank Jewish settlement, denting a militant cease-fire which is vital to a U.S.-backed peace plan.
link et seq reuters
"Denting" rather than breaking, "Israelis" rather than "n Israeli woman and her three children". Meanwhile Abbas and Dahlan clearly do not have the capacity to even send terrorists they have in hand to jail. Roadmap to no where.

Stoner Alert

Just in case you thought we were joking about the federal government publishing a pot users manual - here is the link: Information for the Patient - Marihuana (Cannabis)