legal issues


Among other things, the McCain campaign seems to be drifting into the unsavory ranks of alleged copyright infringers and digital pirates against whom the senator no doubt has voted time and again on the senate floor.

Wired magazine is running an article today that the McCain campaign has complained to YouTube executives that the company is way too stringent with regard to the company’s take-down policy for content that a copyright holder claims violates their copyright.

Evidently, the McCain campaign has seen several of its ads removed from YouTube after copyright holders complained that the content contained material that was copyrighted and not cleared to be used by the campaign. McCain says the ads are protected under the Fair Use doctrine. Fair what? Poppycock, McCain! The ads may or may not be protected under fair use, but the point is that your campaign doesn’t seem to realize that there may be legal issues at stake when you use content that isn’t original. Says the Wired article:

The letter is notable both because YouTube and online video generally have become prime platforms for communicating political messages during the 2008 presidential campaign, and because this is one of the rare instances when a member of Congress is speaking out in favor of fair-use rights, after experiencing for themselves the onerous burden put on citizens using media to express ideas.

Snicker. Who the hell is running this ridiculous, Orwellian mockery of a campaign? This isn’t the first episode of McCain’s campaign misappropriating content, and even people, in their advertising. Remember the whole Paris Hilton fiasco?

The McCain campaign, and John McCain himself, seem to have completely lost their way. I truly hope that John McCain can return to congress when this is all over and rediscover some of the good qualities he once possessed. Given his recent copyright travails, maybe he can now take up the mantle of fair use and end the strangle hold copyright holders have on creative expression once and for all.

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Digital Thought Leaders @ MusicTech

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Copyright Panel

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Audience @ Copyright Panel

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Tech Talk

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Tech Talk

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Paul Lamere

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Search Inside the Music

Today I attended the SanFran MusicTech Summit. The name says it all: this conference brings together technologists, musicians and business people to discuss trends and challenges at the intersection of music and technology. What follows is a brief run down of the highlights of the talks I was able to attend. I haven’t had much time to digest any of the talks, so there isn’t much insight here – just the interesting tidbits as I saw them.

Legal Issues in Searching, Linking & Blogging

Panelists: Howie Cockrill, Esq (BEAT LAW), Andrew Bridges, Esq (Winston & Strawn), Mark Palermo, Esp (ASCAP). Moderated by Joe Gratz, Esq (Keker & Van Nest)

The twenty minutes I spent in this talk made me super super stoked I didn’t chose law as a career. The talk focused on the nitty gritty details of the legal implications involved in maintaining music blogs – interesting from an intellectual perspective, but rather mundane in implementation.

Digital Thought Leaders

Panelists: Michael Petricone (Consumer Electronics), Ty Roberts (Gracenote), Tim Westergren (Pandora), Aza Raskin (Mozilla). Moderated by Brian Zisk (SF Music Tech)

Aza Raskin had some great comments on the need for better utilities for search and discovery of music (I think, I didn’t take notes).

Tim Westergren made some interesting observations about how musicians might better take advantage of the new music landscape. He suggested bands might add a member whose sole responsibility was to deal with the emerging technological aspects of the band – blogging, marketing, promotion, and all the various social networks and publishing channels now available. “The 5th Beatle” he called it.

There was a great question asked by an audience member regarding music metadata, and why Gracenote feels entitled to build a business model off other peoples’ data. Ty Roberts effectively brushed off the question, but it does raise the ongoing question of why this kind of data should be proprietary to begin with, and if it is proprietary, why a third party could own it. There were also some interesting points made on the problem of the metadata standards and normalization. While it wasn’t explicitly raised, the MusicBrainz model provides a very compelling counter model to Gracenote: At its core it is an open source, user moderated, better designed alternative to Gracenote.


Copyright Issues in Music Law

Panelists: Richard Idell, Esq. (Idell Seitel), Fred Von Lohmann, Esq. (EFF), Zahavah Levine, Esq. (YouTube), Maia Spilman, Esq. (INgrooves). Moderated by Whitney Broussard, Esq.

This was a great talk about the challenges of building a business given the terribly murky legal issues surrounding music distribution. It was nice to hear some of the newer problems arising in this space, particularly around the differences between purely audio tracks (like MP3s) and audio visual works, which have entirely different licensing requirements.

I really enjoyed listening to YouTube’s counsel discuss some of the ridiculous requirements and challenges she confronts trying to be sure YouTube’s content is legitimate and rights holders are compensated.

I don’t always agree with the EFF, particularly on the music/copyright issues, but this was one of the better talks I’ve seen Fred give over the years. There are clearly some new emerging problems at the intersection of music & technology, and he was a great advocate for the little guy and the disruptive technologies that make this intersection of music and technology so interesting. I left with a much greater appreciation for the value that EFF contributes in this particular arena. They are very good at thinking about, advocating for and articulating the problems that other lawyers, technologists and the “in” businesses might not care about or think about. Overall a great panel, with some good Q & A afterward as well.

Tech Talk

Panelists: Tom Conrad (Pandora), Marc Urbaitel (In Ticketing), Not Ethan Kaplan (Warner Bros.), Jack Moffit (Chesspark / Xiph), Jeremy Riney (Playlist.com). Moderated by Colin Brummelle (Rilli).

This was basically just serious music tech geek goodness. All the panelists talked about the technology behind their sites. Most were fairly straightforward, Drupal or other PHP implementations. An interesting conversation on Amazon’s EC2 cloud computing app and S3. On balance, Tom Conrad’s discussion of what Pandora’s tech stack took the cake. Their challenges and subsequent solutions are truly unique and worthy of more discussion. Tom did a great job of describing their infrastructure and the numerous challenges of storing a serving up a complicated set of music, playlists and recommendations all in a dynamic, highly scalable, high availability environment. Pandora’s technology: Java, Postgres, C, and Flash for the front end, among other technologies. In another life I’d work on their backend systems.

Individual Presentations

Presenters: Paul Lamere (Sun Labs – Search Inside The Music), Mike Troiano (Matchmine), Paul Anthony (Rumblefish), David Gratton (Project Opus).

I was eager to hear Paul’s talk on the Search Inside the Music project, as this is an area I’ve spent a lot of time thinking about. His lab at Sun is doing some really promising work in making use of audio data to power visualizations and recommendation engines. His talk covered the basics on the SITM features, as well as some of the future directions the project may go in. Most exciting was his statement that this technology will be open sourced and available by September. This folds in wonderfully with my research needs. The rest of the presenters were interesting as well, although I had to leave.

There’s a lot more to talk about and see here. For more info, check out the sfmusictech tag on Flickr & Twitter, and the sites of the people who presented.

Major thanks to Brian and Shoshana Zisk for putting this together!

Radiohead - In Rainbows
Radiohead – In Rainbows

Over the last 3 weeks, several major artists have parted ways with record labels and their traditional business and marketing strategies in favor of leveraging new-fangled Internet mechanisms for distribution and promotion.

Radiohead announced a week or two back that they would offer their new album “In Rainbows” for digital download, and let their fans pick the price they wanted to pay for it. This is a revolutionary (and maybe crazy) idea, and we’ll need to wait to see how it turns out. As one commenter put it, this “cuts straight to the moral dilemma of downloading,” but it also puts the question squarely on the fans: how much is this music worth to you?

For me, it’s less of a moral dilemma than a simple question. I don’t quibble with the argument that stealing music is wrong, but I do take issue with the cost of music, DRM-strapped files, and the fact that some record label is taking ninety cents on the dollar for every CD that goes out the door. The behavior of these major corporations doesn’t change the basic laws or ethics around illegal file sharing, but it is refreshing to see artists taking the music industry out of the equation. I downloaded Radiohead’s album today, and my price point was about 5 euros (about $7). I would pay about $10 for the CD or vinyl. That’s the standard Dischord price and I think it’s fair.

The album, by the way, is worth every penny I paid. Go get it. Besides the music, I’m thrilled that the money goes directly to Radiohead and whomever they have worked with to get this album out. This is what it should feel like to interact with your music and favorite artists. It feels good, empowering and personal.

Shortly after Radiohead’s announcement, Nine Inch Nails announced that the band will no longer have a relationship with a record label, and will heretofore be considered “free agents.” I don’t know what that means, and frankly I don’t care, but it’s another chip in the foundation of an already weak music empire. Funk rockers Jamiroquai and the crap Brit-pop outfit Oasis have made similar announcements.

Yesterday came the kicker from the godmother of pop, Madonna, that she too would forgo the support of the major music industry. Madonna’s business savvy has always been part of her brilliance as an artist, so the fact that she has made this decision suggests that the tide has turned conclusively against the labels.

Their options are slimming — if they can’t convince artists big artists like Madonna to stay on, they will lose their major revenue stream, which means they won’t have as much capitol to invest in up-and-comers. Conversely, if these young acts only view the major labels as a stepping stone to independence, rather than the other way around, the label’s expectation that they can milk an artist for 3 or 4 albums before putting them out to pasture will be gone. In short, their revenue model went bust.

The landscape is wide open, and fans and artists are winning. Digital downloads, Internet promotion, viral marketing, crowd-sourced videos, mash-ups. This has been on the horizon for a long time, but it’s by no means a stretch to say that the future of music is now.

I’ve been moving around quite a bit this summer. Almost every weekend I’ve been in a different location: Calaveras Big Trees State Park, Philadelphia, Montréal, New York, Washington DC, Delaware shore, Guerneville, San Diego, LA, Hawaii. Usually, when I write ‘travel’ entries, it’s because I’ve traveled to some far-off location (Vietnam, Central America, Bahamas, etc.). But this summer, I will only leave the country once while managing to rack up considerable miles. The map below charts my east coast travels in June and July. I might post another map of all my travels once the summer is in the books.


East Coast June/July

Robbins and Brian Gottlock
The Newlyweds
(courtesy nytimes.com)

Old Montréal
Old Montréal
(courtesy gupshup.org)

Amtrak Adirondack
Adirondacks Amtrak Route

While on the east coast, I spent some quality time with the family, including my adorable nephew, and made the regular visits to various east coast destinations. One of the main reasons I stayed on the east coast for so long was a string of family-related events that were close enough together to make it hard and expensive to fly back and forth from San Francisco.

The “big” event on the east coast was my brother-in-law, Robbins’ (on the left in the photo above) wedding to his long time partner Brian. They married in Montréal. A destination wedding, part out of necessity and part out of fun. More on that in a minute. First I had to get to their wedding.

Montréal By Train

Based on my sister’s recommendations, I elected to take the Amtrak train from Philadelphia to Montréal. The trip was a whopping 14 hours, but was a completely gorgeous and relaxing time, despite the fact I had to rise at 4:30 am. After a brief ride up to Penn Station, the Adirondack route follows the full length of the Hudson, winding along cliffs, through pine forests and misty hills, past West Point (an institution very familiar to generations of Maurys and Bunkers, but thankfully not me). There are several stops along the Hudson, but once north of Albany, it’s nearly a non-stop trip the rest of the way. I secured two seats to myself and was able stretch out, nap, relax, read and watch the scenery roll by. Intermittently on the northern route, I got some work done. This train ride is highly recommended if you have the time and disposition.

Once in Montréal, I met up with a bunch of the wedding goers who turned out to be quite fun and entertaining. I wasn’t able to really take in the city, but what I saw I liked a lot. The old French influence and the European architecture gave me the sensation of really being in a foreign country, even though I was only an hour from the border.

My favorite area of the city was probably the Latin Quarter, where we went the first night for Robbins’ bachelor party. One thing I found remarkably backwards about Canada (or Quebec/Montréal more specifically) is that many of the gay male clubs can and do prohibit women from entering. How can a society so ahead of the US in so many ways still have rules like that? Mind you, it didn’t impede our determined group, as about 25 men and 10 women stormed one of the gay strip clubs and proceeded to watch really buff, hairless men stroke their johnsons on stage. After the strip club, we went upstairs to a club, called Unity, and proceeded to get down on the dance floor. Our party knows how to party – we promptly had about 5 guys dancing on stage, and kept going until about 3:00AM. This was the first dance episode of several that would mark the high points of the weekend, and my trip back east.

The Wedding

The following day, at a civilized 4:00PM, we all met at the St. James United Church, crowded in, took our seats, and the ceremony commenced. Despite the whole “gay” thing, the wedding was the most traditional I’ve attended in years. The ceremony was in a church, ‘traditional’ vows were exchanged, one husband is taking the other’s surname, all the guests showered the newlyweds with bubbles as they left the church, and the couples sped off in an awesome chauffeured car.

The reception was held at Le Centre des Sciences De Montréal, overlooking the fleuve Saint-Laurent (or Saint Lawrence River in English). The food was delicious and the wedding band was off the hook. They played all the predictable wedding songs, but it almost didn’t matter what they were playing, as the wedding guests, myself included, were ready to dance the night away.

By about 1:00AM, they kicked us out of the reception, and we found another club that was willing to let us dance until about 3:00AM again. I’m sure we made quite the site – about 15 of us, dressed to the nines, wearing sunglasses (for some reason), we come in, find a place in the back of the bar, and proceed to go crazy. In no time, there were people dancing on tables, shirts were gone, the dancing got dirty. Three bouncers monitored our group closely, but we committed no offense so heinous as to be removed from the club. All around, one of the funnest weddings I’ve attended since my cousin Brooke’s in Texas in 2005.

Reflections on Same Sex Weddings

I can’t write up this travel log without articulating my frustration with why we had to travel to a foreign country to witness the union of these two wonderful and loving people. This is the first of four wedding-related events I will attend this summer, and it was the second same sex wedding that I’ve attended. As I watched these two people marry, and as I’ve reflected on this topic over the last couple of weeks, I’ve grown increasingly frustrated with the U.S. legal position on gay marriage, the general population’s aversion to it, and the leading presidential candidates’ failure to take a firm position one way or the other on this issue.

One evening in Montréal, a few of us were discussing the presidential race, and one person opined that her primary issue, the one that will determine who she votes for, is the candidate’s position on gay marriage. I thought at the time this was an extreme position to take — after all, the candidate has to win a general election, and gay marriage is not supported by a vast majority of Americans. But the more I think about it, the more I agree with her. Fundamentally, gay marriage is a civil rights issue with far reaching consequences. When will our national politicians stand up and fight for equal rights? When will they decide to lead, rather than pander to the polls on this issue?

The first gay wedding I attended was in San Francisco, on the first weekend that Mayor Newsom legalized same sex marriages in that city. People came from all over the world to marry in San Francisco. The feel in the city that week was unforgettable. It was hopeful, exciting and celebratory.

We all had the sense that we were taking part in something revolutionary and historic. As most readers will remember, the state Supreme Court ordered a stop to the unions, effectively annulling the thousands of weddings that took place (although the vows and the promises made remain the same). But the political and moral point had been made. I believed then and I still believe today that this issue is the civil rights battle of our era. It’s a long struggle and won’t be won overnight. States can annul all the marriages they want, Congress can pass all of the amendments and resolutions they want, but they can’t stop the steady progression of thought. I’m confident that my children will look back on our society’s perspective on gay marriage in much the same that we regard the prohibition on interracial marriage – as backward and plain ignorant.

But until that time, gay couples remain relegated to travel – across the country, across state lines or to another country – if they wish to trade vows. Our enlightened neighbors to the North have not only legalized gay marriage, they have embraced it socially. The marriage I attended in Montreal felt like any other marriage, it was a union of two people who love each other very much, and a union of their friends and communities. Here’s to the day when we attend destination weddings solely for the fun of it, not out of legal obligation.

As a vinyl collector/fanatic, I’ve complained for a long time how patently unfair it is that, if I want to own a vinyl copy of an album, that I’m faced with poor choices if I ever want a digital version of that album for my iPod or something. Consider the options:

  1. I buy two copies of the album: a CD and an vinyl copy, and burn the CD to my computer. There are a lot of albums I do own at least two copies of, and plenty of albums that I love enough to buy several times over, but it seems unfair that I would *have* to buy any of them
  2. I rip my vinyl copy to disk. This is a poor option for several reasons, among them poor fidelity, scratches, manually split tracks, poor ID3 tags, etc.
  3. Steal the digital version or ‘borrow’ it from a friend. Sadly, this is usually what happens. I figure I’ve already bought the album and thus I’m entitled to it in whatever format I choose.

Well, I’ve always reasoned that artists should offer a free digital copy of their music if one buys the vinyl. Why not? It only seems fair and would boost sales of the vinyl, perhaps. Well, today, my friends, I can see that someone has finally come up with exactly the same idea. RJD2 to the rescue!!!

Free Digital Copy

RJD2’s third album, The Third Hand, is available free for download if you buy the vinyl.  Good thinking, RJ! GMTA! I love RJD2, and now I have another reason to. The album, so far, is worth owning twice. Thanks! BTW – my record buying spree today can be heard live this evening at Samovar Tea Lounge in Yerba Buena Gardens 5-8.

[updated 6/7/6 8:45 am: fixed link] 
Today, I’ll be blogging over on The Great Whatsit, one of my favorite community blogs. My topic is “Is Technology Killing Privacy?” The post should be up on the site today around 8:00 AM New York time. This is a first hack at trying to get my head around one particular element of privacy in the digital age — the use of our information by corporations to build profiles of our behavior. Enjoy, and as always comments are welcome.

Last Friday I went to see Chris Anderson discuss “The Long Tail of Time,” at the Long Now Foundation’s Friday “SALT” seminar. Chris presentated a new twist on his fascinating research about The Long Tail (more detail here, here, and here). He’s got a book coming out that I’m very much looking forward to reading.

Without going into any detail (read Chris’ book instead…), the “long tail” refers to the long, flatter tail of a power distribution. The yellow part on the graph to the right shows the long tail of a power curve. The feature of a power law that is of most interest to Internet-based businesses is that the total volume of the long tail can be equal to or greater than the total volume of the ‘head’ part of the curve. Therefore, all things being equal, there is as much market potential in the long tail, the numerous ‘obscure’ products, as there is in the steep part of the curve.

Traditional businesses often overlook products with a small potential consumer base because focusing on niche products would mean less space on their shelves for more popular (and thus more profitable) products. Internet-based businesses such as Amazon and Netflix can avoid this problem because their ‘shelf space’ is effectively unlimited. It costs them nothing, and does not negatively affect the most popular products, to keep certain obscure works in their inventory. The recommendation features of these sites also help to push demand down the tail, making works more profitable that might have been otherwise ignored. Thus, the Internet and accompanying technologies have opened the door to niche products, be they independent recording artists, obscure authors, or funky products sold on eBay.

Chris’s talk gave a concise overview of the Long Tail phenomenon, and then moved on to the actual subject of the talk, the notion that there is a temporal element to the Long Tail. Essentially, Anderson was describing how many of the products inhabiting the long tail are old products, classics, cult favorites, etc. The premise is that there is a market for these works, and by making them available, businesses might tap into new or undiscovered markets. It is not just ‘classic’ products that might benefit from monetizing the long tail. Recent ‘big hits’, best-sellers, hit albums, blockbuster movies, etc. that lose the huge popularity they enjoy might enjoy a much longer, if much smaller, interest as the work moves from the best seller list to the long tail. As an example, think of a John le Carré novel (I’m presently reading Absolute Friends…). Years ago, his work was on the bestseller lists, available in airport bookstores and big chain stores everywhere. But over time, new authors appear, new bestsellers are made, and older novels begin to fade from the consumer consciousness. Yet there remains people like me who want to buy and read these old best sellers. Why shouldn’t we have access to them?

And who says that just because a book loses popularity that it will continue down that path to obscurity? This ‘decay function’ in bestsellers is not in fact a one-way road to obscurity. In the case of le Carré, the success of the movie The Constant Gardener reinvigorated interest in his books, and his novels are enjoying a renaissance. Six months ago, I couldn’t find le Carré’s novels (with the exception of The Constant Gardener) at my local Cody’s or Border’s. They told me that they were no longer carrying his books. Yet last week, I walked into Cody’s in SF and found three of his works. Le Carré essentially went out of print, then as the result of external factors, his works gained popularity again and worked their way back up the tail, and back onto bookshelves at independent stores. Who knows if this would have happened without the proven demand that the Long Tail illustrated.

Many believe the economics of The Long Tail portends the death of the centralized gatekeeper. Large media companies (record labels, news corporations, publishers, major booksellers, etc) traditionally need to invest considerable resources in market analysis, determining what products have the greatest potential for success. They act as the gatekeeper of our culture. Most products never make it to market because somebody thinks they won’t be profitable. Chris calls this “pre-filtering” or something like that (he should know all about pre-filtering, since he is the editor at Wired). But it is possible we can move away from pre-filtering and let more products get onto the market, and rely on consumers to decide if the product is worthwhile. To be sure, media companies will still need to invest up-front for some projects like expensive blockbuster movies, but many other avenues for entertainment will open up if the cost of production and distribution are zero.

What would happen if we just opened the gates to content production, so that anyone, anywhere could produce an album, make a movie or write a novel and have it accessible to hundreds of millions of potential consumers? We might not need to answer this question theoretically, because it appears that our culture and our economy is headed in this direction.

A former professor of mine used to talk about “creating the technology and applications that will enable daily media consumers to become daily media producers”. I used to think this was fundamentally a bad idea. How much more amatuer crap do we need out there? Yet part of building the technologies and applications that enable ordinary citizens to be producers of media is building the technologies to sift through the greater volume of content to find the good stuff.

With better search technologies, tagging, collaborative filtering and print on demand, we can not only find the information we are looking for easier, but we can encounter works that were buried in history, bound to rot away in libraries. What if all those old rotting books, and all of our new, unfiltered content was indexed and available for our pursual? The cover story of last Sunday’s New York Times Magazine touched on this (I recommend reading the full article…):

“If you can truly incorporate all texts — past and present, multilingual — on a particular subject, then you can have a clearer sense of what we as a civilization, a species, do know and don’t know. The white spaces of our collective ignorance are highlighted, while the golden peaks of our knowledge are drawn with completeness. This degree of authority is only rarely achieved in scholarship today, but it will become routine.”

In short, there is tremendous value in making all works ever created available to be searched, indexed and discovered. The Long Tail is home to such a rich and diverse set of cultures. We should embrace it. I believe now, more so then I did a year ago, that opening the doors to the playground, making all content available to consumers and potential producers will surely result in much richer, more diverse and more creative content. To be sure, there are many hurdles to overcome, most of them legal, but ultimately, it appears this is what our future looks like. It is a bright day for the indy artist, researcher and student; and a bad day for independent, physically situated businesses, particularly booksellers and record shops, as the closure of Cody’s in Berkeley illustrates. Major content producers and distributors may lose their role as gatekeepers of our culture, but I think they are creative and savvy enough to find a new role in the Long Tail.

This is a quick moving area, and one that has tremendous implications for the content we create and consume, the business strategies that are built around this content, and the laws that govern it. On a closing note, I really enjoyed Chris’ presentation style. He used PowerPoint in a very refreshing way. There were no bullet points, no stupid slides with a sentence or two, or goofy MS Office graphics on them. Rather, each slide was a rich graph or chart, illustrating his talking points with well-visualized data. The talk was meandering at times, but it seemed that at each intersection, for each new topic, he had some great chart to highlight his point.

Grokster has settled its long-standing lawsuit with MGM and the other litigants in
MGM v. Grokster
. The New York Times reported late today that Grokster had abruptly shut down their website and has ceased to do business. The message they left on their front door as they were leaving:

The United States Supreme Court unanimously confirmed
that using this service to trade copyrighted material is illegal.
Copying copyrighted motion picture and music files
using unauthorized peer-to-peer services is illegal and is
prosecuted by copyright owners.

There are legal services for downloading music and movies.
This service is not one of them.

Grokster hopes to have a safe and legal service available soon.

Hmmm. Actually, the Supreme Court unanimously confirmed no such thing. They remanded the case back to trial court to consider whether Grokster actively induced their customers to infringe. I appreciate why Grokster would settle their case, but agreeing to have a notice like this posted on their website, as they sign the settlement with the RIAA and begin work on their ‘legal’ service (presumabely under guidance from their new pals in the RIAA) is really kind of lame. It’s a smack in the face of all the people who fought to protect their rights. It undermines the issues they purported to be fighting for all these many months.

I’m not saying that Grokster shouldn’t be held secondarily liable for infringement under an ‘active inducement’ rule. I’m saying that no one has found them guilty of secondary infringement. Their message is a complete capitulation and overreaches the opinion of the Supreme Court. It looks like they got bullied into a pretty submissive position. It’s not unfortunate that they are settling the lawsuit, but it is unfortunate that they would go out like that.

I’m interested to learn what the details of the settlement are.

According to Mark Russinovich (via the washingtonpost blog), Sony recently started adding some overly eager and troublesome “copy protection” software to their Sony/BMG audio CDs. Evidently, when you try to copy CD content to your computer, you also get some, shall we say, enhanced software in the form of spyware that utilizes tactics previously reserved for hackers and virus writers. The software uses rootkits to gain covert control of your computer.

This seems to me several steps beyond the most liberal boundaries of ‘appropriate’ copy protection measures. The software can render your CD drive useless, corrupt your OS, and attempts to not only strip consumers of most accepted uses of their CDs (including fair uses), but also seeks to penalize people who purchase CDs if they so much as copy their music to their iTunes library.

If this kind of intrusion isn’t bad enough, the approach that Sony/BMG uses basically sets up a nice backdoor to your computer, so that any hacker can gain access to your machine. In other words, once the rootkit is installed, it’s a hacker’s paradise unless you have some good anti-rootkit software running.

This is a bad idea, and a bad sign if other record labels and CD manufacturers follow suit. In the long run, this will have no effect on copying. Hackers and determined pirates will easily circumvent the short-sighted, clunky DRM. Hopefully consumers and some media outlets will chime in, and Sony will be weighing the value of this move against the PR costs. Ahhh, Sony. I thought you made sense in 1984, but lately it’s like I hardly know you! These days you’re like a total stranger. And now I can’t even buy your CDs without giving up reasonable access to the music. This seems like a losing proposition to me.

Updated 11/2/2005 @ 1:14 AM PST: Professor Ed Felton just posted a more detailed and insightful analysis here

Ed Felton has a nice post about eDonkey CEO Sam Yagan’s testimony before the senate judiciary commitee during a hearing on “Protecting Copyright and Innovation in a Post-Grokster World “.

The title of his entry “eDonkey Seeks Record Industry Deal” puts another spin (albeit perhaps inadvertently) on the company’s agenda. It differs significantly from the connotation offered up by Mp3NewsWire, which was one of several sources that quoted Yagan as saying that eDonkey was throwing in the towel after receiving a C & D letter from RIAA. This quote must have come from his verbal testimony, as it appears nowhere in his written testimony.

It may be that the company sees no other option but to reach some kind of agreement with the record industry. Or it may be that the Grokster decision left enough breathing room for both sides that this kind of a deal becomes appealing to both eDonkey and the RIAA. eDonkey may be realizing that their future under an active inducement rule is nebulous at best, and the RIAA may (or at least should) realize that the Supreme Court declined to rule on their argument (that Grokster wasn’t shielded by the SNIU ruling in Sony), and the present legal environment will not give them a cheap, clear solution to their P2P problem.

In other words, both sides in this particular legal struggle seem to be coming to terms with the reality of the market: you can’t stop file-sharing, and nor should you. The RIAA probably wants eDonkey’s traffic. eDonkey probably wants the RIAA’s money. Ahhh, capitalism.

To be sure, the RIAA is throwing around its weight more than it should. They have spun the Supreme Court’s recent ruling in Grokster as an unequivicol victory for their stance against P2P companies, and they seem to be intent on bullying said companies into complying with their demands. But at the same time I’m not convinced by Yagan’s claim that they have nothing to hide and are thus capitulating because they can’t afford a lawsuit. I think a more accurate statement would be that they can’t risk a lawsuit under the current Supreme Court active inducement rule.

Since the Supremes gave only skance guidance regarding what can be considered “active inducement,” I think most P2P companies are reasonabely concerned that a trial may in fact reveal evidence of “active inducement.” These companies have basically lost the shield of summary judgement, and have to consider that their internal documents, emails, advertising campaigns, etc. may be supoeonaed and subject to an analysis of active inducement. In that sense, the Grokster decision definitely made for a murky legal environment for technology companies.

While it is troubling that companies are already folding under the new active inducement rule, I’m not convinced that the Grokster ruling will ultimately have a significant effect on technology, or even on P2P networks specifically. eDonkey’s recent decision, whether it is pure capitulation, opportunism, or a combination thereof, has virtually no effect on the eDonkey/Overnet network. As Nicolas Christin recently mentioned in an email conversation about this, “[eDonkey’s] decision has virtually no impact on the content available, as 1) they are not a content provider, and 2) off-shore, open-source alternatives are readily usable and already represent a dominant share of the
client market on the eDonkey/Overnet network.” Indeed, eMule has that share.

So, eDonkey may have sold out or given up or whatever, but the P2P revolution continues, with or without the recording industry’s consent.