Into Tech

The entertainment industry has been pushing for courts to rule that simply “making available” content for file sharing is the equivalent of copyright infringement. There’s a big problem with this, however. Copyright covers a few different things, and the key ones under which most people are charged is unauthorized “distribution.” But, if there’s no evidence that a file was actually shared, it’s difficult to see how distribution actually occurred. Basically, those who say making available isn’t distribution are simply saying that for someone to be charged with unauthorized distribution there should at least be proof that distribution occurred. In most (though not all) cases, the judges have seen this and ruled that simply “making available” is not distribution.

In the one high profile case that a judge ruled otherwise, the infamous Jammie Thomas case, the judge has now admitted that he may have made a “manifest error of law” and has asked parties to file briefs to give their thoughts on the making available issue. The MPAA has taken the opportunity to basically say that it’s too difficult to find actual proof, and therefore they shouldn’t have to do so:

“Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances…. It is often very difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement.”

In other words, since it’s difficult to get proof, we shouldn’t have to provide proof. This is especially problematic given how flimsy the “proof” that the entertainment industry already relies on.

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Last fall, we wrote about Kiss’s Gene Simmons explanation for why the RIAA should be suing even more people to stop the evils of file sharing. There were all sorts of problems with it — and when the interviewer pointed to the success stories of Radiohead and Nine Inch Nails, Simmons brushed them off as being not worth commenting on because they were “exceptions” rather than business models that work. Of course, if it were just an exception, then it wouldn’t be much of a problem, but as a few folks have sent in, it appears that Simmons is increasingly upset with Radiohead, suggesting that its “exception” is helping to destroy the industry. He seems to be skipping over the part where Radiohead made a ton of money from its “exception.”

It’s difficult to see how an example of a way to make a lot of money could possibly be killing an industry — unless Simmons is defining the “industry” so narrowly to only include the selling of plastic discs with music. And, of course, after blaming Radiohead, he turns on the real problem: those darn fans: “The record industry is dead. It’s six feet underground and unfortunately the fans have done this.” Always a winning strategy: blame your biggest fans for your own inability to embrace a business model that makes sense to them.

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While Warner Music had claimed that it was getting away from attacking fans who wanted to download, it appears that it still has a long way to go. Atlantic Records, a subsidiary of Warner Music Group, asked one of its stars, Kid Rock, to publicly denounce file sharing. Instead, Kid Rock publicly denounced Warner Music, while telling fans to download away. Atlantic came to him saying he needed to say something publicly because “people are stealing from us and stealing from you.” Rock’s response? “Wait a second, you’ve been stealing from the artists for years. Now you want me to stand up for you?” So, instead, he started spreading the opposite message: “I was telling kids - download it illegally, I don’t care. I want you to hear my music so I can play live.”

It’s for this reason that he’s also avoiding having his music go up on iTunes, because it’s based on the old model: “an old system, where iTunes takes the money, the record company takes the money, and they don’t give it to the artists.” He’s disappointed that the recording industry has really squandered an opportunity: “So the internet was an opportunity for everyone to be treated fairly, for the consumer to get a fair price, for the artist to be paid fairly, for the record companies to make some money.”

Of course, he then does go a little overboard: “I don’t mind people stealing my music, that’s fine. But I think they should steal everything. You know how much money the oil companies have? If you need some gas, just go fill your tank off and drive off, they’re not going to miss it.” That, of course, is a bit of an exaggeration, though I’m sure it will be used by supporters of the old system to discredit the rest of what he has to say. But the key points remain: he recognizes that the real way to make money these days is to have more people listening to your stuff, and make the money on other business models, such as live performances — and that the record labels rely on an obsolete system that tends to make them wealthy at the expense of artists, rather than with them.

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In recent years, we’ve seen the entertainment industry suddenly embrace mobile as a platform, incorrectly believing that its more locked-down nature would mean that it wouldn’t face the same “threats” (which they should see as opportunities) of file sharing and open networks and services. However, as is always the way, more open systems are catching on and getting more usage, and more closed systems are having trouble getting traction. Rather than embracing that, however, it appears Nokia is pushing to hold back the tide.

Ben S writes in to highlight a rather unconvincing talk given by a Nokia VP trying to explain to open source developers why they need to embrace DRM, intellectual property, digital locks and subsidies in the mobile world. However, his reasoning basically amounts to “because I say so.”

“Why do we need closed vehicles? We do. Some of these things harm the industry but they’re here [as things stand].”

In other words, there’s no actual reason to use these things, other than that Nokia says you must — even though it knows such things harm the industry. Way to show leadership in the mobile industry. No wonder it seems like most innovation in the mobile space is coming from folks other than Nokia.

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Last year, a private equity firm took over the major record label EMI and announced that things were going to be different. It wasn’t going to be anti-fan. It was going to look on the success stories of Radiohead and Nine Inch Nails not as a threat, but as an opportunity. It even threatened to leave the RIAA and the IFPI unless it pulled back on suing fans. It then went out and hired internet savvy executives who would (hopefully) contribute a different perspective to the running of a major record label.

But, in the midst of all of this, it hasn’t really backed down from a variety of ridiculous lawsuits. For example, it’s been a part of a lawsuit against an ISP that refuses to spy on its users and cut off those who do unauthorized file sharing. We also noted last year that it had sued Michael Robertson’s startup, MP3Tunes. Now we tend to have a lot of fun accusing Robertson of having the same marketing strategy with every company he starts: piss off some established company, get sued. It seems to happen with pretty much every company he starts from MP3.com to Lindows/Linspire to SIPphone. So it really wasn’t a huge surprise to see MP3Tunes sued — though, it’s difficult to see how a personal music storage locker that doesn’t allow sharing could possibly be infringing.

However, now it appears that the “new” more “friendly” EMI isn’t just suing MP3Tunes. According to Boing Boing and Michael Robertson, it’s trying to extend the lawsuit to go after Robertson personally, saying that he should be personally liable. As you probably know, one of the purposes of a corporate structure is to limit the liability of the executives of a company. To go after Robertson personally makes very little sense unless the idea is to intimidate. Many executives will quickly settle in such circumstances so as to not open themselves up to such a huge liability. On top of that, the chilling effects are tremendous. Others won’t even think of starting innovative services, for fear of being personally liable in a lawsuit.

Unless EMI pulls back its lawyers, I think we can safely conclude that the “new” EMI hasn’t really changed much from the old EMI.

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Music lovers have waited a long time to get their mitts on DRM-free music [without pirating] and the recent deal between Apple and EMI seemed to be the answer.

Hell, most people don’t even mind forking out the extra 20p per track - a higher quality track too - for the privilege of being able to do what they like with them. But, there’s a shadow looming.

According to Ars Technica, Apple is embedding your name, account and email details in every DRM-free track you download. Why? The likely scenario seems to be that if the tunes you pay for end up on a P2P file sharing site online, or your mates iTunes catalogue, then they’ll be able to nab you for copyright infringement.

OK, we all know that a tool will arrive online to remove that incriminating info but until then what the hell is Apple playing at? The company is refusing to say – for now – but considering the amount of anger this move is causing, I’d be surprised if Apple didn’t make an official statement this week.-Martin Lynch

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A 2006 report by the U.S. Patent and Trademark Office called “Filesharing Programs and Technological Features to Induce Users to Share” was just released to the general public yesterday, and it contains some interesting governmental observations as to the dangers of digital piracy.

It’s 80 pages long and I am far too busy/lazy to read through the entire thing, but it looks like the general gist of it is that file sharing supports terrorism and corrupts our children. It claims that peer-to-peer networks increase the chances of government workers sharing sensitive data, which is kind of a stupid argument (let’s ban phones, while we’re at it, so they can’t call people and tell them secrets).

An even more backwards argument is that by exposing kids to P2P software they are at a higher risk to pirate music, therefore be sued by copyright holders. The bad news about all this? It will make people protecting their copyrights seem antagonistic. Actually, the copyright holders that are being antagonistic are the ones making themselves seem that way, chief. If any of you out there with too much free time on your hands wants to comb through this beast for some fun quotes, pass em along and we’ll post the best ones. –Adam Frucci

Shadowmonkey [via Fark]

FIC’s taking more than just a page from the Linux community with its FIC-GTA001 smartphone—its taking their entire playbook. Hoping to capitalize on what is essentially free programmers for the project, FIC is releasing a Linux-based smartphone complete with an SDK (Software Development Kit). This allows end-users to develop their own programs and functionality for the phone (picture an army of geeks making sure you can play back DivX on your phone).

The phone itself has a 2.8-inch VGA display, USB mesh file sharing, multi-touch sensor recognition, GSM, GPS, 128MB RAM, a Samsung ARM9-based processor and MP3 playback capabilities. The concept of their multi-touch gestures is that you can use two fingers to control a variety of tasks, such as two finger scrolling like the PowerBooks and MacBooks. Some demo pics of the gesture abilities after the jump. Even though the phone will probably only sell to DIY-ers and Linux enthusiasts, there may be some interesting applications that come out of this.

– Jason Chen

FIC Linux Cellphone - can it capture the imagination of the open-source community? [Slashgear]

FIC’s taking more than just a page from the Linux community with its FIC-GTA001 smartphone—its taking their entire playbook. Hoping to capitalize on what is essentially free programmers for the project, FIC is releasing a Linux-based smartphone complete with an SDK (Software Development Kit). This allows end-users to develop their own programs and functionality for the phone (picture an army of geeks making sure you can play back DivX on your phone).

The phone itself has a 2.8-inch VGA display, USB mesh file sharing, multi-touch sensor recognition, GSM, GPS, 128MB RAM, a Samsung ARM9-based processor and MP3 playback capabilities. The concept of their multi-touch gestures is that you can use two fingers to control a variety of tasks, such as two finger scrolling like the PowerBooks and MacBooks. Some demo pics of the gesture abilities after the jump. Even though the phone will probably only sell to DIY-ers and Linux enthusiasts, there may be some interesting applications that come out of this.

– Jason Chen

FIC Linux Cellphone - can it capture the imagination of the open-source community? [Slashgear]

FIC’s taking more than just a page from the Linux community with its FIC-GTA001 smartphone—its taking their entire playbook. Hoping to capitalize on what is essentially free programmers for the project, FIC is releasing a Linux-based smartphone complete with an SDK (Software Development Kit). This allows end-users to develop their own programs and functionality for the phone (picture an army of geeks making sure you can play back DivX on your phone).

The phone itself has a 2.8-inch VGA display, USB mesh file sharing, multi-touch sensor recognition, GSM, GPS, 128MB RAM, a Samsung ARM9-based processor and MP3 playback capabilities. The concept of their multi-touch gestures is that you can use two fingers to control a variety of tasks, such as two finger scrolling like the PowerBooks and MacBooks. Some demo pics of the gesture abilities after the jump. Even though the phone will probably only sell to DIY-ers and Linux enthusiasts, there may be some interesting applications that come out of this.

– Jason Chen

FIC Linux Cellphone - can it capture the imagination of the open-source community? [Slashgear]