A Copyfighter’s Musings

Today, Universal Music Group sued Grouper and Bolt.com for hosting copyrighted music videos uploaded by individual users. According to Reuters, Universal “made clear that … [it] retain[ed] the right to add” to the lawsuit Sony Pictures, which recently bought Grouper.

And thus the record industry lawsuits roll on, even as they cut deals with YouTube. To learn more about the protections that copyright law might offer these video sharing sites, check out this recent article by EFF’s Fred von Lohmann.

(Cross-posted at Deep Links)

Filed by Derek Slater at 7:16 pm under Big Ideas
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In a Reuters article published yesterday, Yahoo Music general manager David Goldberg offers this choice quote:

“The notion that a track I buy in DRM is protected and one without DRM isn’t is a fallacy…. It’s all nonsense. Music is never going to be protected, and anybody who tells you that is not being honest…. [Y]ou’re just making it hard for people who want to do the right thing to get the music they legitimately purchased on the devices and services that they want.”

Nicely put, and this isn’t the first time Yahoo Music’s sharply criticized DRM and openly expressed its desire to sell major label music in unencrypted formats. When will the major labels come around?

(Cross-posted at DeepLinks)

Filed by Derek Slater at 6:03 pm under Big Ideas
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Lost in the GooTube shuffle last week was some even bigger news for the scores of YouTube users who already enjoyed lip syncing (and hip shaking) to their favorite songs and posting home videos to the site. Deals worked out with Sony BMG, Universal, and Warner Music suggest that fans will be able to freely remix and share popular sound recordings from those major record labels’ catalogs. When a remix video gets viewed, YouTube will share a cut of the advertising revenue with the rights holder.

It’s a simple concept with potentially profound implications. Artists get paid, while fans can keep on sharing remixed tunes on the site and push the boundaries of user generated media even further. No fans or innovators get sued in the process.

That raises an important question: why can’t P2P users get a similar deal? EFF has long advocated that the music industry blanket license P2P users to let them keep sharing in a way that gets artists paid. The labels could help Internet users get legal by cutting a deal with an intermediary, whether a P2P company, an ISP, or a collective licensing society like ASCAP.

Cyberscholar Michael Geist points this up in an insightful article:

“During the height of Napster, experts estimated that even a five-dollar monthly fee would have generated billions in additional revenue for the content industries, yet those companies chose instead to sue the P2P services along with thousands of their users. The YouTube deal may foreshadow a reversal, with the industry at long last ready to embrace the remarkable commercial potential of the Internet.”

Read the whole thing, as well as Wired’s Eliot van Buskirk hitting on the same notion.

(Cross-posted at DeepLinks)

Filed by Derek Slater at 5:16 pm under General news
24 Comments

The Unlawful Internet Gambling Enforcement Act rocked the online casino industry mere days after its passage this month, and, with the president expected to sign the bill on Friday, most commentary has focused on how it will impact the millions of Americans who enjoy playing poker and placing bets online. As in many other instances, this attempt to stamp out an online activity could also impact anyone who wants to link to or help you access sites online.

Blocking unlawful gambling-related activities shouldn’t mean censoring people who simply reference the existence of gambling sites. Linking, like publishing a phone number or street address, is a form of expression protected by the First Amendment, and this bill raises some subtle free speech concerns.

Instead of changing how federal law treats the individuals who place bets, this bill prohibits businesses from receiving certain types of wagers and puts restrictions on financial service providers, like banks and PayPal, that help transfer money to gambling sites.

In so doing, the bill also singles out “interactive computer services” (ICS) like ISPs or website hosting services and then defines what a court can force them to do under this law. So long as an ICS is not running an unlawful gambling site itself, a court can at most require the service provider to remove hyperlinks or block access to sites hosted on their servers. The bill states that ICSs need not any take action before receiving proper notice from federal or state Attorneys General, and they’re under no obligation to actively monitor their systems.

That’s a good start, but the door to such legal responsibility could have been more firmly shut. The law has often recognized that Internet intermediaries and users shouldn’t be held to account for someone else’s bad deeds, and this bill could have made that crystal clear with respect to gambling-related activities. Absent other acts that are themselves violations of the law, those who merely link to or host someone else’s content shouldn’t be responsible for that site’s activity. You shouldn’t have to check with a lawyer any time you simply want to point people to someone else’s site.

Sustaining the Internet’s vibrant, free flow of information depends on appropriately limiting liability for search engines, ISPs, bloggers, and other information-middlemen who help you discover sites and go where you want online. When trying to stop any unlawful online activity via regulation of such middlemen, it’s extremely difficult to ensure that lawful activity is not incidentally blocked in the process.

For instance, despite the DMCA’s “safe harbors” for service providers that host or link to materials that infringe copyright, providers have sometimes censored non-infringing content in order to avoid the possibility of costly copyright lawsuits. Google is currently fending off a lawsuit from porn vendor Perfect 10 alleging that linking amounts to infringement. Meanwhile, the chilling effects on lawful speech would be quite severe if bloggers were responsible for all unlawful speech that other people posted as comments. After receiving even the hint that a link may lead to expensive lawsuits and perhaps liabilty, bloggers would have strong incentives to remove the commenters’ material in order to stay on the safe side of the law. Fortunately, Section 230 of Title 47 offers broad protection for bloggers, bulletin board creators, and other service providers that qualify as ICSs.

The new gambling bill does offer fairly broad protection for services that qualify as ICSs. If an ICS receives proper notice but still refuses to take down a link or block access to an unlawful gambling site, federal or state Attorneys General still can’t get any monetary damages in court. However, for those who don’t qualify as an ICS, this limitation doesn’t apply.

Regardless, this bill shouldn’t be seen as a concession that the acts of linking or hosting can, by themselves, violate the law. That would be a dangerous precedent for regulation of Internet activities far beyond gambling.

Instead, legislators and courts should clarify protections for intermediaries and users who help you locate information online. After all, we don’t send the feds after phone book authors — why should we sick them on the online equivalent?

[10/17 edited slightly]

(Cross-posted at DeepLinks)

Filed by Derek Slater at 4:57 pm under General news
9 Comments

Cyberscholar Tom Bell argues that the Unlawful Internet Gambling Act won’t stop most Americans from playing poker and placing bets as they did before. He makes a solid argument, but color me skeptical in light of PartyGaming’s and 888’s massive stock price drops and public statements about blocking US customers. At the very least, investors think the future is highly uncertain, and that will impact the trajectory of online poker and betting.

But here’s one more reason to believe Bell — PokerStars will, at least for the moment, continue business as usual. The way I read it, they’re waiting to see how the financial transaction regs play out, and that will take many months. Stay tuned…

Hat tip: Iggy.

[Updated, 3/13.]

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Disclosure: the listing above is promotional in nature. I was compensated for posting it, and, though I do not warrant anything about its content, I thought it may be relevant to readers.

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Filed by Derek Slater at 10:53 pm under General news
1 Comment

It’s the latest digital media murder mystery: TiVo Series2’s TiVoToGo enabled limited portability of recorded content to PCs and other devices, but the TiVo Series3 HD did not include this feature when recently released. In other words, if you want to upgrade to HD, you have to downgrade your TiVo’s features.

You don’t need to be Sherlock Holmes to guess that this story somehow involves Hollywood, the FCC, and “digital rights management” (DRM) restrictions. EFF has opposed these restrictions every step of the way, and, in an EFF white paper released today, we’ll explain digital cable DRM’s sordid history, how digital cable and satellite DRM may affect you, and what you can do to fight back.

In short, get ready for copying limits on cable and satellite content that won’t stop “Internet piracy” but will stop you from making legitimate use of lawfully acquired content. You’ll be forced to only buy devices with limited features, and restricted digital outputs could break compatibility with your current HD displays and receivers, even though you may have already invested thousands of dollars in them. Innovators will have to beg permission before inventing new digital devices that help you get more from your satellite and cable content.

Unfortunately, TiVoToGo’s disappearance is just the tip of the iceberg. But you can still take steps to fight back — use EFF’s Action Center to stop cable providers from making DRM even worse, and check out the other action items on our cable and satellite DRM page.

(Cross-posted at EFF’s DeepLinks)

Filed by Derek Slater at 3:04 am under General news
1 Comment

Last week, Congress dead-locked on many dangerous surveillance, IP, and other cyberlaw-related bills. But they did manage to sneak a new online gambling ban [PDF] into the port security bill — it’s an embarrassing, disappointing instance of our country throwing its weight around online, crippling a burgeoning industry and taking away a favorite hobby of millions of ordinary Americans.

For those who needed a wake-up call that the Internet is indeed regulable, this ought to do it.  Sure, some people will be able to work around the regs, but many won’t, particularly in the near term. Three days after the bill passed, the stock prices of major online gaming companies crashed, and major companies like Party Gaming and 888 vowed to ban all US customers.

The online gaming business is still rather young, yet it was already roughly as big as the US record industry — around 12 billion dollars in yearly revenue. While the gaming industry was cut off at the knees, online payment companies like Neteller also took a nose dive.

The bill doesn’t impact all gambling — it exempts fantasy sports, lotteries, horse racing, and purely intrastate gambling. Domestic gaming companies were either indifferent to the bill or happy to be rid of foreign competitors. The US has ignored WTO rulings against this protectionism before, and it could very well do so again.

But forget about the companies — what about the ordinary people that Congress is ostensibly trying to “save?” What evidence is there that “we’re addicted to online poker as a people?” Addiction implies disease.

Let me make my bias here clear: I play online poker for about 5 hours a month and head to Vegas with friends to play about twice a year. I make a tiny — but, for me, quite significant — amount of spending money that way. And I have a ton of fun doing it. My poker blog is now defunct, but it should give you a sense of how much and why I love this hobby.

Sample my blogroll, and you’ll find many others like me. Some have even made their whole income from playing poker — it’s their livelihoods.

Like the many people who flock to local cardrooms, Vegas, and Atlantic City every year, most online players don’t win money, but they do have a lot of fun. The Internet brought to the fore ordinary Americans’ desire to play poker — it’s no coincidence that poker on TV has grown in parallel, and, at least in California, local cardrooms are sprouting up.

And, yes, some people do get addicted. My point is not to marshall a complete argument against this paternalist policy-making in general or this policy in particular, as distasteful as I find both to be. Rather, I want to highlight that there are millions of ordinary Americans just like me who didn’t ask for this ban, oppose it, and will be harmed by it. The industry invited regulation and taxation, and yet poker players are now facing an outright ban.

Congress completely sold us out — if you care about this issue, head over to the Poker Players Alliance site.

[Note: as usual, this blog represents my views, and not those of my employers past or present.]

Filed by Derek Slater at 1:27 am under General news
10 Comments