Be The Media

Court to hip-hop nation: no free samples

From Associated Press:

"NASHVILLE — A federal appeals court ruled Tuesday that rap artists should pay for every musical sample included in their work — even minor, unrecognizable snippets of music.

Lower courts had already ruled that artists must pay when they sample another artists' work. But it has been legal to use musical snippets — a note here, a chord there — as long as it wasn't identifiable.

The decision by a three-judge panel of the 6th Circuit Court of Appeals in Cincinnati gets rid of that distinction. The court said federal laws aimed at stopping piracy of recordings applies to digital sampling.

"If you cannot pirate the whole sound recording, can you 'lift' or 'sample' something less than the whole? Our answer to that question is in the negative," the court said.
"Get a license or do not sample. We do not see this as stifling creativity in any significant way."

Some observers questioned whether the court's opinion is too restrictive, especially for rap and hip-hop artists who often rhyme over samples of music taken from older recordings."

House panel moves to criminalize spyware, net piracy

From the Washington Post:

"People who illegally share copyrighted music and movies over the Internet could be jailed for up to five years under a bill approved by a powerful congressional panel today.

The Piracy Deterrence and Education Act of 2004 is one of a handful of measures gathering steam in Congress that target the practice of Internet file sharing, which record companies blame for playing a part in a $2 billion dollar decline in yearly CD sales since 2000. The House Judiciary Committee approved the measure by voice vote, clearing it for debate in the full House.

Adam Eisgrau, the executive director of P2Punited, a lobbying group that represents file-sharing companies, said the bill wouldn't solve the file-sharing problem any more than would the recording industry's lawsuit campaign. "Ever-increasing penalties on individual users for copyright infringement are popular beyond logic. They are certainly within Congress's right to adopt, but that doesn't make them the right strategy for dealing with current tensions between new technologies and important intellectual property rights."

Eisgrau's group has unsuccessfully pressured record companies to come to the bargaining table with file-sharing companies to create some sort of legal licensing scheme for music distributed over peer-to-peer networks.

The Smith measure makes it a crime to make 1,000 or more copyrighted works (movies, songs, software, etc.) available for download. Most file-sharing software is set so that users automatically share their entire collections of downloaded music, unless they turn that function off."

Public Knowledge reacts to House Judiciary Committee approval of copyright bill

From Public Knowledge:

"Background: The House Judiciary Committee approved today legislation (HR 4077) to provide criminal penalties for violation of copyright laws over peer-to-peer networks.

Statement of Gigi B. Sohn, president of Public Knowledge:

The version of HR 4077 approved by the Judiciary Committee is an improvement over the legislation approved by Judiciary subcommittee. We commend the Committee for making voluntary the program under which Internet Service Providers would pass on to consumers notices from the Justice Department alleging copyright infringement. We are still concerned that tax payer dollars could be better spent on priorities other than notifications of possible copyright infringement.

However, we continue to be disappointed that the Committee has established “offering for distribution” as the basis for a criminal copyright violation, and “making available” as the basis for a civil violation. Those standards are far too vague, and could include material stored on computers and shared on networks. The bill is a departure from existing copyright principles by imposing liability on those who make material available, regardless of whether there is any infringement.

The new standard would also criminalize what is now lawful use of copyrighted materials while putting undue restrictions on the use of innovative technology such as Wi-Fi networks."

In-House Advice

Editorial in NY Times on the copyright debate:

"Last week the Congressional Budget Office released a new report called "Copyright Issues In Digital Media." It should be essential reading on the Hill. The report upholds exactly the kind of evenhandedness that has been missing in much copyright legislation so far.

"Revisions to copyright law," the report argues, "should be made without regard to the vested interests of particular business and consumer groups."

Must download TV

Farhad Manjoo writes for Salon.com:

"When the Federal Communications Commission gave its blessing on Aug. 4 to a new TiVo service that Hollywood has opposed, the decision was widely hailed as a triumph for techies. The news was both unexpected and unlikely — these days, government officials rarely move against the wishes of giant media companies.

TiVo's upcoming service, called TivoToGo, will allow users to send recorded TV shows across the Internet to PCs or to other TiVo machines, a functionality that TiVo says customers have long demanded. Although TiVo has imposed a host of restrictions on the system, media firms told the FCC that TivoToGo would cause immense harm to their bottom line. The FCC didn't buy it, and geeks were ecstatic: "Three words.... There is a GOD!" wrote one Slashdot reader in a typical note of glee.

TiVo was required to lock down its system and to seek the government's approval in order to comply with the "broadcast flag" rule, which the FCC adopted last year. The rule is designed to prevent the widespread trading of television shows as we enter the age of high-definition digital television. Hollywood's nightmare scenario is that high-def TV will become "Napsterized," with shows available online to anyone, anytime, for free — which may sound, to some TV fans, less like a nightmare than a heavenly dream.

And, indeed, despite Hollywood's efforts, it's a dream that in many ways is coming true. While the government and Hollywood fret over ways to keep high-definition television off the Internet, copies of standard-definition TV shows are now heavily traded online. Once an underground activity plagued by hard-to-use tools and shows of less-than-stellar picture quality, the systems for finding and downloading TV are steadily becoming easier to use, and the current watchability of the shows is nothing to scoff at.

In recent months, a host of developers and TV enthusiasts have been working on ways to improve online trading — they're building sophisticated networks to record and encode and distribute shows, and they're improving peer-to-peer transfer systems to make downloading easier. The hottest new improvement is made possible by the merging of two Internet innovations, the peer-to-peer protocol BitTorrent and RSS, the popular Web syndication standard. Together, these systems enable a computer to automatically find and download a user's favorite shows — something like having a TV station designed just for you.

The situation faced by TV show downloaders is not very different from the problem faced by consumers of most content on the Web — how do you know when your favorite Web site has changed, and how do you know when to check back in to a blog that's only occasionally updated? In the blogosphere, the answer for most people is RSS. So why couldn't that work for TV shows? Sailes wondered. People's computers could automatically check the RSS feed for updates, and when a desired show was found in the feed, the machine would automatically download the program, without the user's input. "We saw that we could quite easily get this done," Sailes said.

Sailes didn't exactly come up with this idea on his own. Net visionaries have long been pondering the marriage of BitTorrent and RSS, and many people have built systems to bring about this union.

But Sailes didn't think that anyone had gotten it just right, and this spring he and a roommate set out to build a stand-alone RSS reader meant specifically for TV trading. What they came up with is Buttress, an open-source Java application that, while still very much a work in progress, looks extremely promising. Using the system is easy: You give the program a few RSS feeds to monitor (here are some to get you started), and you give it some keywords of shows you'd like to download — "sopranos," "buffy," that kind of thing. The program periodically scans the feeds, and if it sees your keyword, it launches your BitTorrent app and downloads the show. Because this happens in the background, while you're sleeping or at work or out of town, it's painless — you don't need to look around for the show, or to wait while it downloads, or to worry about whether you recorded it, etc. All you've got to do is trust that someone, somewhere, has put the show online — and when you check back on your machine, you'll see that you've got it and it's ready to watch.

Buttress is not the only such application. There is a plug-in for the popular BitTorrent client Azureus that's also useful, and there's an app for Linux systems. All of these are open-source programs, and developers are working mightily on improvements. Sailes says that by the fall TV season, there will be a very stable version of Buttress available, one that "shouldn't be a problem for anyone to use."

Although there are no firm numbers, TV trading still appears to be relatively uncommon. Sailes estimates that there were more than 50,000 downloads of the last episode of "Friends," but compared to the millions of people who watched it on TV, that's not much. It's clear that trading is not hurting Hollywood. "The last time I checked, the sales of DVDs of television shows were huge — way larger than anyone had ever expected," says Fred von Lohmann, an attorney at the Electronic Frontier Foundation. "It doesn't seem to me that the Internet trading is harming the market in any substantial way."

Afraid of the real world

Annalee Newitz, on On M Night Shyamalan's horror-nerd movie, The Village, from Alternet:

"It's always creepy but gratifying when a piece of mass media so perfectly reflects the culture industry that conceived, manufactured and distributed it. Aided by government agencies, the tycoons of the techno-entertainment complex guard the boundaries of their intellectual property with rituals, propaganda, and weak encryption they call "copy protection." And in the end, they do it for the same reason the village elders do it in Shyamalan's movie. They're afraid of the real world."

Copyrighting the resident

Lawrence Lessig writes for Wired.com:

The US president owns neither his words nor his image - at least not when he speaks in public on important matters. Anyone is free to use what he says, and the way he says it, to criticize or to praise. The president, in this sense, is "free." But what happens when the commander in chief uses private venues to deliver public messages, holding fewer press conferences and making more talk-show appearances? Who controls his words and images then?

Though Michael Moore's Fahrenheit 9/11 has grabbed the headlines, another documentary is at the center of this debate. In August, Robert Greenwald will release an updated version of his award-winning film, Uncovered: The Whole Truth About the Iraq War. Greenwald has added a clip of President George W. Bush's February interview with Tim Russert on Meet the Press, NBC's Sunday morning talk show. In the clip, the president defends his decision to go to war - astonishingly unconvincingly.

Greenwald asked NBC for permission to run the one-minute clip - offering to pay for the right, as he had done for every other clip that appears in the film. NBC said no. The network explained to his agent that the clip is "not very flattering to the president." Greenwald included it anyway.

Copyright law gives NBC the power to deny anyone the use of its content, at least presumptively. If you want to rebroadcast Meet the Press or sell copies on the Internet, you need NBC's permission. There are exceptions, at least in theory. The law, for example, exempts "fair uses" of copyrighted material from the control of its owner. If a clip is short enough, or if its use is sufficiently transformative or critical, then the law allows its use, whether permission is granted or not.

In practice, however, the matter isn't that simple. Because copyright law is so uncertain, and because insurance companies that indemnify films don't much like risk, the practice among auteurs seeking major distribution is to cut any clip for which permission isn't granted - fair use notwithstanding. The costs of defending a fair use right in court - and, more important, the costs if any such defense should fail - make the risk prohibitive for most filmmakers. Defense of fair use could run hundreds of thousands of dollars - several times the budget of a typical documentary. And losing this type of claim could expose the filmmaker to $150,000 in damages for each copyright infringed. In a world in which Fox News sues comedian and author Al Franken for parodying "fair and balanced," a cautious director can't be too careful.

Greenwald's struggle demonstrates a more fundamental point. Many are concerned about the ever-expanding reach of copyright law. More are concerned about the ever-increasing concentration of the media. Greenwald's dilemma highlights how the two trends are linked: As media becomes more concentrated, competition to curry favor with politicians only increases. This intensifies during an election cycle. Networks able to signal that they will be "friendly" - for example, by ensuring that embarrassing moments from interviews won't be made available to others - are more likely to attract candidates for interviews and so on, than networks that don't. Concentration tied to copyright thus gives networks both the motive and the means to protect favored guests.

NBC insists it is remaining "neutral" by denying others use of the interview. But there's nothing neutral about restricting either critics or supporters from repeating the president's words. But the issue here isn't really NBC's motive. It is the president's. Why would any president allow a network to copyright his message? No self-respecting president would speak at a club that excluded women: Whatever rights a private organization may enjoy, a president stands for equality. So why did the current leader of the free world, who rarely holds press conferences, agree to speak on a talk show that refuses to license on a neutral basis the content he contributed? Is vigorous debate over matters as important as going to war less important than protecting his image?

This question is crucial, and thus Greenwald has decided to defend his fair use right, even if it means staring down a bunch of lawyers in court. The argument: It's hard to tell "the whole truth" about the Iraq war when you censor bits of that truth because a network tells you to. But what this incident demonstrates most is what many increasingly fear. Concentrated media and expansive copyright are the perfect storm not just for stifling debate but, increasingly, for weakening democracy as well.

FCC OK's program sharing

Matt Stump writes in Multichannel News:

"Over the objections of the National Football League and the Motion Picture Association of America, the FCC last week approved TiVo Inc.’s request to allow consumers to share “saved” TV programming with up to 10 friends of family for private use.

TiVo is working on a “Digital Output Protection Technology” that would allow consumers, for instance, to transmit stored TV programming to friends, vacation homes and other locations for personal use.

But the NFL and MPAA, having watched rampant Internet music piracy, opposed the TiVo plan, fearing that opening the file-sharing door just a crack would lead to widespread abuse. The two groups said the TiVo system didn’t meet the “broadcast flag” requirements adopted last November.

The broadcast-flag rules, which take effect July 1, 2005, will make it illegal to distribute or sell equipment that can receive certain DTV streams unless it has government approved copy protection. But the FCC carved out an exception for TiVo last week. The vote was unanimous, but commissioner Kevin Martin expressed concerns whether TiVo’s technology provided “sufficient restraints.”

FCC approves TiVo technology

Jube Shiver Jr writes in the Los Angeles Times:

"Over the objection of the entertainment industry, regulators Wednesday approved technology that allows TiVo subscribers to send recorded television shows over the Internet.

The decision by the Federal Communications Commission is expected to encourage consumer electronics companies to offer digital devices that give users more control over how and where they watch the programs they record.

TiVo Inc.'s TiVoGuard was among 13 anti-piracy technologies the FCC certified Wednesday. The ruling came eight months after the FCC ordered that copy protection technology be incorporated into all digital TV recording devices by 2005.

Hollywood studios wanted tight controls on the ability to send recorded programs over the Internet. Device makers like Alviso, Calif.-based TiVo argued that such restrictions would stifle innovation just as the nation's living rooms are starting to go digital.

FCC Chairman Michael K. Powell, who once called TiVo "God's machine," said TiVo's scheme balanced protection and flexibility. "We are recognizing the need to protect digital content, without sacrificing the need for innovation," he said.

The Motion Picture Assn. of America and the National Football League supported competing technologies from Microsoft Corp., Sony Corp. and 10 other applicants that strictly limit the redistribution of recorded digital TV shows to within a single household.

They balked at TiVoGuard, which lets subscribers zap recorded broadcasts over the Internet to as many as nine playback devices, provided all of the devices share the same TiVo customer account.

The MPAA criticized Wednesday's decision, saying in a statement that "technologies that enable redistribution of copyrighted TV programming beyond the local TV market disrupt local advertiser-supported broadcasting and harm TV syndication markets — essential elements supporting the U.S. local broadcasting system."

TiVo's plans lead to fight on copyrights

From the Washington Post:

"Hollywood studios and the National Football League are seeking to block the maker of the popular TiVo television recorder from expanding its service so that users could watch copies of shows and movies on devices outside their homes.

In filings with the Federal Communications Commission, the organizations say the new technology could compromise the copyrights of shows that broadcasters send over the airwaves in digital form, which offers much higher sound and video quality than what viewers typically get today.

The organizations fear that computer enthusiasts would capture those programs and begin trading them online in the same way that millions of music files are shared daily, which record companies have said has cut into their profit. TiVo Inc. insists its system will not allow such mass Internet distribution.

The battle is one of several being waged in federal agencies and on Capitol Hill this summer, as content companies such as the movie and music companies seek to keep control of copyrighted works that increasingly can be digitally stored, copied, manipulated and distributed by users. In turn, several public advocacy groups and technology companies warn that the content companies are trying to revoke long-standing consumer rights to "fair use" of artistic works.

With 1.6 million subscribers, TiVo is the leading provider of the digital recorders that are revolutionizing television viewing. In addition to copying shows for later viewing, consumers can pause live shows, skip commercials and use other features to control the TV experience.

To date, users generally have been unable to send copied programs to another device, although some digital recorders include "burners" that allow programs to be copied to a DVD and played elsewhere.

TiVo wants to make copies more portable, in stages. Sometime this fall, the company plans to roll out a system that will allow programs to be transferred from the TiVo box to a computer via a small device attached to the PC.

The program could then be sent to other devices within the home and viewed on them. Such devices, including laptops or desktop computers, would be registered with the company and would share encoding and decoding technology that prevents viewing by nonregistered devices.

Next year, TiVo plans to expand the system to allow programs to be transferred to registered devices outside the home, such as at an office, vacation cabin or even a friend's house across the country. A maximum of 10 devices could be registered by the subscriber.

"TiVo has an interest in keeping everything secure," said its Washington attorney, James M. Burger. "We are trying to bring innovation to consumers."

But the system alarms the content industry, which promised to roll out more digital programming over free television networks only after insisting that the FCC adopt rules requiring makers of recording devices to certify that they have technologies to prevent mass Internet distribution.

Digital programming is far more appealing for online distribution because the quality does not degrade as it is copied over and over.

TiVo was one of 13 companies that asked the FCC for approval, arguing that its copy-protection system met the requirements. The Motion Picture Association of America, Hollywood's lobbying arm, and the NFL then filed objections to TiVo's plan."