Into Tech

While those who like to claim that the US broadband market is more competitive than it really is like to point to the rise of 3G wireless networks as proof, they almost always ignore the fact that those 3G networks come with insanely restrictive terms of service, that allow the providers to cut users off for almost any activity outside of email or web browsing. For example, using such a service for video and music has been prohibited in some terms of service. Sprint was the most open with their 3G wireless until recently.

Now AT&T is admitting that if it discovers users of its wireless broadband 3G service are making use of P2P apps, it will cut them off completely, and claims that it makes this clear in the terms of service. It hasn’t happened yet, but this bit of data will supposedly be used by a dissenting FCC commissioner this week to show that Comcast’s traffic shaping is pretty tame compared to other “rules” out there on network usage (ignoring the very different nature of the networks in question, of course).

This raises a number of questions: If AT&T’s biggest concern about P2P file sharing apps is clogging its 3G wireless network, why does it allow streaming apps to run on the iPhone? For example, one of the most popular apps on the iPhone is Pandora, whose customized streaming radio offering is super popular (and appears to work quite well). So is AT&T going to cut off users of one of the most popular apps on the iPhone? And how will AT&T respond when someone (inevitably, if they haven’t already done so) develops an iPhone app for P2P file sharing as well? This really just seems like AT&T slipping an excuse into the terms of service to cut off anyone they don’t like — but in the long run it may backfire as people get pissed off at AT&T for limiting what new devices like the iPhone can do.

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A few years back, there was a research paper released that posited that the fines sought by the RIAA for copyright infringement were unconstitutional. While this argument has been brought up in some court cases, and even considered by judges, it’s yet to have been an important part of any decision. That may be about to change.

In the Elektra vs. Barker lawsuits, where earlier rulings had clearly sided with the RIAA on the question of whether or not “making available” was infringement, defendant Denise Barker is taking a new tack: admitting to infringement, but challenging the constitutionality of both the fines and the Copyright Act itself for establishing those fines. Instead, Barker notes that a reasonable “loss” on a downloaded piece of music is about $3.50 (which even sounds high). Considering that the fines start at $750 and go up from there, there’s a reasonable argument to be made that the fines are excessive (and there’s some case law to support that).

While it’s an interesting argument, the chances of a judge buying it seem slim (especially considering the court already sided with the RIAA on most of the “making available” thought process). It will be a fascinating lawsuit to watch, but the odds are pretty strong against having the court decide that the Copyright Act is unconstitutional.

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It’s been almost four years since we first wrote about textbook publishers freaking out over file sharing of textbooks, and it appears that not all that much has really changed in the interim, other than the fact that it’s actually becoming a little more common for students to find scanned versions of textbooks online. The NY Times looks at the issue and how some textbook providers are trying to strike back. Of course, the main reason why students download textbooks is because textbooks are ridiculously expensive, but it doesn’t look like publishers are fighting back by lowering prices.

Instead, they’re trying to get people to pay more.

More specifically, rather than responding to the root cause of the downloads, textbook publishers are trying to come up with systems that students can’t get around paying for, such as online subscriptions to “extra” information to go along with a textbook. Of course, we’ve seen this before at times too, such as the time when a company offering just such a subscription went out of business in the middle of a semester, taking down its website and all of the materials the students were using. That worked out great.

Basically, the textbook publishers are reacting in exactly the wrong way. Rather than focusing on ways to actually add value and make it worthwhile to pay, they’re looking to come up with ways to lock people in and force them to pay. That’s bound to backfire eventually. It’ll just take a smarter textbook company to embrace more reasonable strategies, and for professors to only use educational materials from those companies not focused on bankrupting students.

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Some UK politicians have been pushing to get ISPs to play the role of copyright cops for an unclear reason. It appears they’ve bought into the misleading and incorrect claim by the music industry that somehow ISPs are responsible for the record labels own failure to adapt its business model. So despite claims from some ISPs that wouldn’t sign up for such a plan, and wouldn’t kick users off the internet, a bunch of those UK ISPs are now promising to play the role of copyright cops anyway — and this even includes the ISPs who insisted they wouldn’t go down this road.

It’s unclear why exactly they are agreeing to voluntarily waste their time acting on behalf of an obsolete industry’s business model, but the misguided threats from UK politicians probably helped move things along. Either way, this starts things down the incredibly slippery slope of making ISPs responsible for policing the actions of users. For years, most governments have realized what a bad idea this is, but suddenly in many countries that concept is falling away, and the end results will not be positive for the internet — as plenty of perfectly legitimate activities are about to get blocked in an overzealous effort to prop up a few obsolete business models.

Already there are rumors spreading that there is behind-the-scenes maneuvering for the next big step to occur: making all internet users pay an annual “music tax” fee. The original article on this agreement has someone from BPI denying that such a tax is under discussion, but some UK politicians seem ready to introduce it anyway — and folks like Billy Bragg’s manager, Peter Jenner, are claiming victory. And even a music person industry admits that this is a slippery slope (though, he thinks it’s in the right direction), saying that this is: “a first step, and a very big step, in what we all acknowledge is going to be quite a long process.”

The BPI representative backs this up by noting that his goal isn’t to take steps towards ending file sharing, but to end it altogether: “There is not an acceptable level of file-sharing. Musicians need to be paid like everyone else.” As for the artists who benefit from unauthorized file sharing? That doesn’t seem to occur to the BPI. And, if musicians really need to “be paid like everyone else,” how come the rest of us don’t get paid for the work we did 50 years ago? How come if everyone else picks a business model that the market rejects, we don’t get all the other companies in the value chain and the government to artificially prop up that business model for us? You know, we work pretty hard here at Techdirt to make a living, but apparently “everyone else” just complains that their business model isn’t working and has ISPs take care of it for them. Can we now get UK ISPs to send “warning” letters to everyone who reads Techdirt to start telling them they should send us money? That would be a much easier business model.

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Remember just over a week ago the good news coming out of Germany concerning an appeals court ruling that noted (properly) that the owner of an open WiFi access point was not liable for actions done by others on that WiFi? Well, apparently there’s a bit of a “split” in the German courts. An anonymous reader sends us notice of a news report out of Germany with a lower level court apparently ruling in the exact opposite way (link in German, translations welcome; here’s Google’s translation). From what the submitter and the translation suggest, the court claims that it’s the responsibility of the access point owner to secure the WiFi, and if they do not, they have to take on some liability for what happens on that system. There’s no question, apparently, that the owners of the WiFi system did not actually share the file in question. They showed they were not at home at the time of the alleged infringement, and they had no file sharing software on their computer. While the case isn’t yet over, the owners of the WiFi access point have to pay court costs, lawyers fees and the amount they were sued for… and they may face criminal prosecution as well.

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The UK law firm Davenport Lyons has made a name for itself in being incredibly aggressive in threatening and suing anyone that it suspects of being involved in file sharing, no matter how flimsy the evidence it has. In face, Davenport Lyons relies on the increasingly questionable evidence provided by the firm Logistep, whose evidence is so shaky that the company has been found to have broken the law in both Italy and Switzerland. And, oh yeah, another lawyer who relied on questionable Logistep evidence has been banned from practicing law in France for six months, after the Paris Bar realized that this questionable “evidence” was being used more for extortion-like “pre-settlement” letters that demand money to avoid getting taken to court.

However, that’s not stopping Davenport Lyons, who has found the business to be so lucrative that it wants more people it can threaten. It’s now suing over 100 people it believes shared a pinball video game. Once again, you can rest assured that this has little to do with the actual legal merits of the case, and quite a lot to do with simply trying to frighten as many people as possible into paying up on those “pre-settlement” letters. For example, there are numerous misstatements made by Davenport Lyons, including the false claim that these lawsuits are about downloading, rather than uploading. In fact, all the lawsuits are about whether or not someone uploaded the game — but the lawyer notes: “There is no difference between stealing a DVD from a high street retailer and downloading it from a peer-to-peer network.”

Of course, the lawyer is also wrong there. There is a tremendous difference between stealing a DVD from a retailer and downloading it from a P2P network: most notably that in the first case, something is missing and in the second it is not. That doesn’t mean it’s not infringing, but the two things are quite different. The same lawyer goes on to claim that video games can’t continue being made if there is widespread file sharing — despite evidence from some video game companies that embracing file sharing as a way to gain attention does wonders.

Reality, though, doesn’t keep the money coming in. Expect plenty more lawsuits from Davenport Lyons, as the company claims that a recent legal decisions means ISPs need to start handing over names of suspected file sharers so it can send out its nastygrams in short order.

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Contrary to popular opinion (partly due to a misunderstanding press that will often repeat this myth), the various lawsuits regarding file sharing have never been about an individual downloading unauthorized copyright-covered works, but in uploading or sharing them. Amusingly, there are some legal experts who point out that a clear reading of copyright law in the US actually suggests that uploading is perfectly legal, while downloading may not be. Either way, the entertainment industry has focused on going after people for uploading (specifically: distributing) unauthorized materials. And that has resulted in an ongoing legal debate over the question of whether or not simply making something available is the equivalent of distribution under the law. There have been a few court rulings on either side of this question, but the trend seems to be leaning towards the fact that making available is not the equivalent of distributions. That would be a problem for the recording industry, as it would then need to prove actual unauthorized distribution, which could be quite difficult.

That said, in one case, it may be facing an even bigger uphill battle. That’s because it charged someone with distributing/uploading content, despite the fact that he’d modded his file sharing software to not allow any uploads. It’s difficult to see how they can get him for even “making available” given that he set up the software in a way to not actually make anything available at all. But, of course, given how much the entertainment industry relies on flimsy evidence, it’s probably no surprise that it didn’t even check to see if this guy was making any files available before charging him with doing so.

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There’s been plenty of back and forth over the years concerning the question of whether or not an open WiFi network makes the owner of that network liable for or protected from charges of file sharing by others on that network. Since the entertainment industry can only trace back to the access point, but has no idea who’s using that access point, some have always contested that an open WiFi network is a defense against charges of file sharing, since it could be anyone doing the sharing. Others contend that the owners of the open network should be liable for any crimes committed on that network.

A German court has now ruled that open WiFi network owners are not responsible for actions committed by other users on their network. This overrules a lower court decision, which the entertainment industry had been using to threaten people whose IP addresses turned up in file sharing sweeps. This doesn’t mean that the owner of the network won’t still be hauled off to court, or that they won’t eventually be found guilty of infringement — but if the person can present evidence that others used the network, then they have a defense against charges of file sharing. This seems like a reasonable ruling that hopefully other courts will follow as well.

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Moving music

We want to put our existing iPod libraries on to the new PC.
Jane McNicol

JS: Apple’s website provides instructions for moving your music library either via a CD or DVD or using an iPod (support.apple.com/kb/HT1329). However, this requires the use of iTunes 7 on both machines. One alternative is to use iGadget software ($15), which has replaced iPod Agent by the same developer, but there are many others. The main problem is transferring any protected files bought from the iTunes store. According to Apple, you must authorise the new PC by selecting Authorize Computer on the Store menu in iTunes. You can then attach the iPod, go to the File menu, and select Transfer Purchases from iPod (support.apple.com/kb/HT1727). Of course, you can always copy your files onto CD or other storage medium and add them to iTunes on the new PC. However, this will lose the metadata you had in the old library.

TinyURL revisited

What’s the best way to follow up your many TinyURL references?
Tom Garrud

My system - Firefox 3, Zone Alarm Security Suite, Windows XP - will not let me access any TinyURLs.
David Gompertz

JS: TinyURL references work as published if you type them directly into the address bar of your browser or, at worst, stick http:// on the front, eg http://tinyurl.com/owd8n etc. But it’s probably easier to follow the links from the Ask Jack blog, where I use the full address of each link instead of the TinyURL. Some websites and security programs may block TinyURL addresses as they can be used to take people to malware sites. The Zone Alarm Suite now does this via its Spy Site Blocking tab, but this is not part of the free firewall program.

Saving boot time

I can remember having to wait for radio valves to warm up. Why do I have to wait even longer after switching on my Windows XP PC?
Hugh Roberts

JS: When correctly set up by the manufacturer, Windows XP boots in about 30 seconds, resumes from Hibernate in 20 seconds, and resumes from Standby in five seconds. The boot time for a well-used PC is generally more like 60 to 90 seconds, depending on how many applications are being loaded in the background. These will usually include a firewall and antivirus software, but most other preloads are unnecessary. Search for [windows startup manager] and you will find lots of programs that allow you to control which things are loaded. I use AnVir Task Manager Free for this purpose, though Windows Vista has a utility built in. Otherwise, you can go to the Control Panel, click Power Options, and set your PC so that it will hibernate after a specified time. This uses very little power but it will start up quicker.

Data destruction

I’ve bought a replacement for my broken down PC, and would like to dispose of it, but it still has my data on the hard drive.
Barbara Evans

JS: Simply remove the hard drive before disposing of the base unit. If the drive is big enough to be worth the effort, you could mount it in an external drive case and use it as a USB drive with your new machine. If it’s a small drive and you don’t need to rescue any data, you can do enough physical damage to render it inoperable - eg, wrap it in a tea towel and whack it with a hammer. The tea towel is to stop bits flying around, but you should also wear appropriate protective equipment such as goggles.

What’s Kontiki?

I have installed the BBC iPlayer, but every time I activate it, a program called Kontiki pops up.
Denis

JS: When you download TV programmes using iPlayer - as distinct from watching streamed versions online - they are downloaded using Kontiki (kontiki.com). This is a peer-to-peer file sharing program, which is also used by similar services such as Sky by Broadband and Channel 4’s 4oD. Kontiki seems to load and use your bandwidth, even if you are not using iPlayer: use the Windows Task Manager to see if Kservice is running. The BBC has a page that explains how to stop it running on startup and when you are not using iPlayer (tinyurl.com/4h2t26). You can remove it altogether using the kclean.exe program from tinyurl.com/5msknq. However, if you do, any Kontiki-based programs such as iPlayer may not work.

Backchat

Vista user JH Prentice wanted a photo retouching program to replace Microsoft’s Picture It! I suggested the Picnik website and Paint.net. Two readers suggested Picasa (picasa.google.com), which is mainly a photo organiser, while Marcus Fallon proposed XnView (xnview.com), which is mainly a viewer. I’d go for XnView too, if its retouching facilities meet your needs. A great pro solution is Adobe’s Lightroom, if you have £200 to spare.

Back in February, we noted that the UK government was putting a lot of pressure on ISPs to “voluntarily” agree to act as copyright cops for the entertainment industry — sending out industry threat letters to users (often based on flimsy evidence) and even kicking off users who are “accused” of unauthorized file sharing three times (the infamous “three strikes”) policy. While the government backed off a little, saying that it was up to the industry to work out the details, apparently the “tone” has changed and the government is back to putting serious pressure on ISPs to cave in to entertainment industry demands: “The British government just put a gun to our head,” is how one ISP exec put it. That means they were basically told to give in or legislation would show up forcing them to give in. Chalk another one up for the entertainment industry lobby, effectively getting governments to protect an obsolete business model once again.

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