Last week I had two posts on the question of whether labels might periodically remove copyrighted works from subscription services (Content Subscription Shenanigans and No Guarantees with Content Subscriptions). Access may be granted at one point in time and denied at another. I think this is a legitimate concern that should be addressed by those who promote subscription services. I've also come across further evidence of this possible music industry tactic.
An entertainment lawyer familiar with the issues (anonymous by request) has said that labels sometimes find it in their best interest to keep a good portion of their catalog in an inactive status (not available in physical formats). According to this source, label heads have told him that they don't stop selling certain artists not because they don't believe they can sell the music but, rather, they stop selling some artists' work so that they can clear the market for others. In other words, the strategically deny certain artists so that others can live.
I'm not sure why these tactics wouldn't translate over to the subscription-based world.
UPDATE
Bonus: This is the 500th Post on "The Importance Of..." Go, me!
Yesterday, I noted some troublesome reports about the Rhapsody music streaming service (No Guarantees with Content Subscriptions). According to Joe Gratz, music was appearing and then disappearing from Rhaspsody (The Danger of Subscription Music Services). Well, Gratz sent a link to his post to Rhapsody PR person Matt Graves who quickly responded (kudos on taking a blogging customer seriously) and confirmed that, indeed, such shenanigans happen for a variety of reasons but are rare (Real Responds). Gratz's original post had raised the possibility of the music labels toying with consumers by making music available only for limited periods of time, a concern I share. Graves responded:
Sure, labels (indie or major) could tease consumers by offering music online for only a short period of time, then take it offline and make it available only at retail, but that seems like a lot of work to sell a few CDs. And taking it offline permanently could make people more angry than if you never offered it online in the first place.I'm not so sure the concept is far-fetched. You know how every year or so, McDonald's runs big promotions for the McRib sandwich (available only for a limited time)? Or how Disney makes some movies available once a generation or so? Does this tick off consumers? Yes, but more importantly it drives up demand. McRibs sell like
Therefore, I don't find it particularly hard to imagine record labels playing all sorts of games with subscription services to boost sales and/or listens. I've a number of CDs (all thankfully ripped now) in my collection that I don't listen to particularly often, but really enjoy. I know I can always call them up when I want to, but don't simply because my choices are so wide. However, if you told me they were going back into the vaults (for resampling in some new format or some such nonsense), so I'd better listen now, I would. I think such tactics would work in a number of different scenarios. For example, limited edition live concerts. You don't pull all of artist's works, but some rarer works might be available for a limited time. When an artist isn't creating new material, this might be a way to maintain interest in the older material. At the very least you get some press releases out there.
So when a subscription service tells me (using a paraphrase from the NY Times) that a subscription will provide "access to favorites no matter what storage format comes out" excuse me if I'm skeptical.
Me? I like the subscription with mucho included downloads option. All the benefits of a subscription, all the benefits of ownership.
Recently, on Copyfight, there have been a couple of posts about "tethered" music services (A Tale of Two Tethers and RCN's New Tethered Music Service). In A Tale of Two Tethers, Jason Schultz linked to a NY Times article in which a proponent of subscription streaming music services (as opposed to downloads) touts the supposed superiority of access such services provide (From a High-Tech System, Low-Fi Music):
Richard Wolpert, chief strategy officer of RealNetworks Inc., the parent of RealRhapsody, takes aim at Apple when he muses that customers will be unhappy when they decide that they want to own music encoded at 320, not at 128. Far better, he argued, to abandon the notion of "owning" songs, because the concept condemns users to endless purchases. "How many times do you want to own your music?" he asked. "I own my music as eight-tracks, I own my music as albums, I own my music as cassettes, I own my music as CD's."Unfortunately, access to favorites isn't guaranteed. According to Joe Gratz, some of the music on Rhapsody has a tendency to disappear, sometimes in only a few weeks (The Danger of Subscription Music Services):With a subscription service like RealRhapsody, one saves personal tastes in the form of playlists that replace actual music collections, providing access to favorites no matter what storage format comes out "in the next 5 or 10 or 20 years," Mr. Wolpert said. [link omitted]
Several times over the past few months, new releases have appeared on Rhapsody on their release date, only to be pulled from the catalog a few weeks or months later.Imagine the licensing battles of the future. When renegotiating licenses, artists and publishers could pull their music out of the subscription system, thus leaving subscribers with no access to the music on the playlists they so carefully created. Gratz anticipates even shadier behaviour:
There is the possibility here for some very nasty crack-dealer-like licensing behavior on the part of the record companies: they license to subscription services for a while, then pull the album so people who are hooked go out and buy the CDs. Record companies could even repeat this gambit over and over, hooking new subscription-service users then forcing CD purchases each time.Wolpert's right. A subscription service means that your music can be upgraded over time (though shouldn't we be at a point where upgrades are unnecessary?). Of course, that doesn't help much if the music is taken off the subscription service. That's a risk that Wolpert failed to mention. Maybe ownership isn't passe quite yet (Rental Nation).
Cyberlaw Prof Larry Lessig takes a look at some of the reasoning that seems to have informed those behind the Inducing Infringments of Copyright Act (IICA, née INDUCE Act) (continuing congressional confusion on copyrights (ie, not just (c), or (cc), or even (ccc) but (cccc))). He points to a recent paper (Sony Revisited [PDF]) from Lee Hollaar, Computer Science Professor with the Univ. of Utah. From the introduction of the paper:
Today, tens of millions of people participate in peer-to-peer systems like Kazaa, with most users “sharing” not their own material, but more likely music whose copyrights are owned by others. Whether such activities hurt the copyright owners by being a substitute for legitimate sales and license fees, or help by sparking interest in a new work, is not the question here. The Constitution and the copyright statutes give a copyright owner the exclusive right to the protected work during the limited duration of the copyright, and therefore the right to determine the business model for its distribution to the public. [footnotes omitted]Lessig briefly addresses Hollaar's arguments, but really pushes the point that Sony enshrines the separation of powers, that,
This is not an opinion about copyright law alone. It is an opinion about separation of powers — about which branch is best able to do the necessary balancing that copyright law demands, “within the limits of the constitutional grant.” Sony says, in effect, when a technology is not simply a technology for violating the law, then it is left to Congress to decide whether and how that technology is to be regulated. Congress, not the courts. [link in original]My perspective on Hollaar's paper when I've had a chance to go through it.
Oh, wait, that didn't happen.
The New York Times carries a Reuters wirestory on a 7% increase in music album sales for the first half of 2004 over 2003 (Album Sales in U.S. Reported Ahead of 2003). The short story doesn't attribute the change to any particular factor, but you can be sure that industry execs will take all the credit and complain that sales would be even higher absent P2P. What is the true story? No one really knows, the evidence is not decisive.
C|Net News has a mildly interesting piece on the convergence of cellphone and digital music player (Cell phones heading into iPod territory). For many people, it probably makes a lot of sense to merge the two devices. However, cellphone companies are somewhat reluctant to dive in because they haven't figured out how to make money off something in which hardware sales subsidize service (and not the other way around). But ya gotta love this quote:
Moreover, they're [cellphone companies] already making considerable money by selling ring tones--essentially 15-second to 30-second snippets of songs that substitute for a traditional ring--for as much as $2.50 apiece. That could look less appealing next to a 99-cent version of the entire song.Xingtones anyone?
C|Net News reports that the RIAA has filed another 482 direct infringement lawsuits against John Doe filesharers (RIAA takes hundreds more 'John Does' to court).
In response, Joe Gratz does some back of the envelope calculations to determine the monetary value of the risk filesharers bear with regard to the lawsuits (The Cost of RIAA Risk). Joe Gratz concludes that the risk is about fifty-four cents per month. One could quibble with the figure, but without more data it is impossible to know how accurate it is. For example, the RIAA is of necessity targeting uploaders not downloaders. I would imagine that the uploaders are a smaller proportion of the filesharers than the downloaders. The RIAA is also targeting those sharing an unknown but relatively large number of files; they aren't going after someone sharing twelve songs, but probably one hundred or more. So, those actually targeted by the RIAA are probably a relatively small number of the number of filesharers and their risk is consequently greater.
However, let's assume that the value is this low (heck, it might be lower). Does this mean that Gratz's conclusion is correct?:
My point, though, is that the RIAA is just making everybody hate them, needlessly. If people actually ran the numbers, they’d see that while there are many rational reasons not to use P2P networks to infringe copyrights, fear of these RIAA suits shouldn’t be a significant one.
Now, of course, it would be great if the RIAA offered a universal blanket license for a reasonable price like $5/month. However, the world isn't a perfect place and it is going to take some time to reach that nirvana. Until that happens, however, does it really make sense for the RIAA not to launch any lawsuits?
Imagine if the RIAA had declared that they wouldn't file any lawsuits against uploaders until a blanket licensing deal had been worked out among a significant number of parties. This might have several undesireable outcomes.
Enforcing Copynorms
For example, it might further solidify the copynorm among some that filesharing without payment is legitimate. Back before the original Napster, when the RIAA went after the first people to post MP3s on their webpages, there wasn't much of an outcry. Few stood up said "How dare the RIAA sue these people!" Frankly, I don't see much of a difference between sharing files via P2P and posting them to your homepage. If one should be legal, so should the other.
Still, the RIAA hesitated for a couple of years in suing uploaders. I believe this was a mistake on their part. Had they immediately gone after direct infringers instead of solely pursuing a contributory infringement strategy (which backfired in the Grokster case), I don't think the outcry over the enforcement would have raised nearly as many hackles. I also think it would have been much more effective as the number of filesharers would have been much smaller and the rate of growth would have been slowed.
I imagine that the lawsuits have had some effect on knowledge and copynorms. Many more people know that uploading unauthorized copyrighted works is illegal. Additionally, many people are no longer uploaders, why take any risk when what you really want is simply to download for free? This can have a disproportionate effect on the filesharing networks as the number of uploaders decrease and become ever more attractive targets for lawsuits. The fact that many people are no longer uploading is probably evidence of some success on the norm front as well. As many filesharing programs default to sharing, people have to take a positive step to avoid potential liability and many are.
You Can't Sue Everyone
That was one of the rallying cries of the early Napster era. To the extent that the RIAA didn't file lawsuits by the ream, it was true. If it continues to be true, then enforcement of any blanket licensing scheme is going to be extremely problematical. The RIAA had to prove that it can go after enough infringers to be at least plausibly effective. If the RIAA went after just a handful, the campaign might not be taken seriously at all (and rightly so). Of course, now that the RIAA has started the campaign, they can hardly back down, or they will look like they cannot afford to enforce.
Although the current risk is small, it is not entirely insignifcant when taken into account with the other costs of illicit filesharing. I would say that this looks like a plausible level of enforcement, assuming you can use other means to move people to a licit service.
You Still Need a Carrot
In the end Gratz's big point is that the RIAA is just "just making everybody hate them, needlessly." For the reasons stated above, I disagree. I think this is a necessary element in solving the filesharing issue. However, the usefulness of the lawsuit strategy is predicated on the RIAA also providing a reasonably priced, non-DRM'd, voluntary subscription service (or another reasonable solution). Attempting to stop filesharing solely through a lawsuit strategy is doomed to failure and Gratz would be right. If on the other hand, the RIAA is honestly moving towards a responsible solution, than they are smart to continue the lawsuits.
Well, technically, the treaty is called the WIPO Treaty for the Protection of Broadcasting Organizations, cuz heaven knows they're all faced with extinction. The draft treaty will be discussed June 7-9 by WIPO's Standing Committee on Copyright and Related Rights (SCCR), which will then "decide whether to recommend to the WIPO General Assembly in 2004 that a Diplomatic Conference be convened." A diplomatic conference can adopt a treaty. The treaty will not go into effect, however, until a certain number of countries have acceded to it. The draft of the treaty is available here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].
This treaty is really a nasty bit of work. It will give broadcasters, not copyright holders but broadcasters, a number of exclusive rights in their broadcasts, such as fixation, reproduction and distribution, whether or not the broadcast is of a public domain work. Moreover, the treaty would require signatories to prevent circumvention of those rights.
Oh yeah, the treaty would also apply to "cablecasters" and the United States (all alone on this one, apparently) wants the treaty extended to cover "webcasters." What exactly constitutes a webcaster isn't entirely clear, perhaps only streaming, perhaps HTTP. While the US is not a signatory to the previous treaty on broadcast, our efforts on negotiating this one indicate we are likely to sign on.
Read on for a look at this monstrosity...
Background
EFF's Consensus at Lawyerpoint, an anti-broadcast flag blog, reported on the origins of this treaty back in August 2002 (Europeans push WIPO Broadcast Treaty to create "fixation rights"). Last October James Love, director of the Consumer Project on Technology, wrote (with comments and suggestions from EFF's Cory Doctorow) an excellent analysis of an earlier draft of the treaty ([DMCA-Activists] On the Proposed WIPO XCasting Treaty). CPTech maintains a website tracking the treaty (The proposed WIPO Treaty for the Protection of the Rights of Broadcasting, Cablecasting and Webcasting Organizations).
Sui Generis Copyright-like Protection for Broadcasts
The treaty would give (among others) the following rights to broadcasters, cablecasters and, if the US has its way, webcasters: fixation, reproduction and distribution. Of course, there is no limit on what is covered by the treaty, as long as it is "broadcast" and consists of "sounds or of images or of images and sounds" (although why they couldn't just say "images and/or sounds" is beyond me). In other words, broadcast of public domain works like Dawn of the Dead would be covered along with works for which the broadcaster owns the copyright. Heck, you could start a radio station that exclusively broadcast Creative Commons-licensed freely distributable works and keep anyone from recording your broadcast.
Why bother with copyright? Simply "broadcast," or in the US's version, "webcast" all your material. Instead of connecting to an FTP server to get video or music you would connect to an ongoing "webcast" of the media, so that way, the broadcaster can keep control of the media even if it isn't copyrightable.
Article 8
Right of Fixation
Broadcasting organizations shall enjoy the exclusive right of authorizing the fixation of their broadcasts.
No more VCR, DVD-R or TiVo for you. So much for time shifting. Goodbye Sony v. Universal, it was nice knowing you.
This is the mandated broadcast flag. If the broadcaster doesn't want you recording it, you don't have a right to.
Article 9
Right of Reproduction
Alternative N
Broadcasting organizations shall enjoy the exclusive right of authorizing the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts.
Alternative O
(1) Broadcasting organizations shall have the right to prohibit the reproduction of fixations of their broadcasts.
(2) Broadcasting organizations shall enjoy the exclusive right of authorizing the reproduction of their broadcasts from fixations made pursuant to Article 14 when such reproduction would not be permitted by that Article or otherwise made without their authorization.
More broadcast flag goodness. Even if you are allowed to record it, the broadcaster can control how you can reproduce it. That way, if you want to shift the latest Sopranos from the TiVo in the living room to your laptop to watch on the plane, the broadcaster can stop you.
The US and, for some reason, Egypt support alternative "O", which protects broadcasters from reproductions of unauthorized fixations.
Article 10
Right of Distribution
Alternative P
(1) Broadcasting organizations shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of fixations of their broadcasts, through sale or other transfer of ownership.
(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the fixation of the broadcast with the authorization of the broadcasting organization.
Alternative Q
Broadcasting organizations shall have the right to prohibit the distribution to the public and importation of reproductions of unauthorized fixations of their broadcasts.
In other words, no filesharing of broadcasts. Don't you dare make the fixation you made of ABC's broadcast of the President's State of the Union address (SotU) available on KaZaA.
Article 11
Right of Transmission following Fixation
Broadcasting organizations shall have the exclusive right of authorizing the transmission of their broadcasts following fixation of such broadcasts.
Don't webcast what you've saved previously. Not only can't you put your fixation of the SotU on KaZaA, you won't be able to webcast it either.
Now, governments can make the same exceptions to these broadcasting rights as they "provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works." But they don't have to. Nor is it clear to me, under recent copyright decisions, that the Constitution requires the US to do so.
Term of Protection and Formalities
Article 15
Term of Protection
The term of protection to be granted to broadcasting organizations under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which thebroadcasting took place.
Great. Copyright isn't long enough we have to provide protection for the broadcasts for fifty years in addition? So, forty years from now, when your grandchildren want to use a clip from television today to illustrate a report on the popular culture of their grandparent's era, they'll have to clear permissions with the television station that broadcast the clip (assuming we still have television stations then).
The previous treaty had a length of twenty years and, as we all know, broadcasters in countries that signed the treaty have suffered greatly from this length.
Article 18
Formalities
The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality.
No pesky registration requirements or anything. That way it is very difficult for people to know who owns the rights to what decades from now.
DMCA for Broadcast Flag
Article 16
Obligations concerning Technological Measures
(1) Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by broadcasting organizations in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their broadcasts, that are not authorized or are prohibited by the broadcasting organizations concerned or permitted by law.
Alternative V
(2) In particular, effective legal remedies shall be provided against those who:
(i) decrypt an encrypted program-carrying signal;
of the broadcasting organization that emitted it;(ii) receive and distribute or communicate to the public an encrypted program-carrying signal that has been decrypted without the express authorization
(iii) participate in the manufacture, importation, sale or any other act that makes available a device or system capable of decrypting or helping to decrypt an encrypted program-carrying signal.
Alternative W
(2) [No such provision]
This is the equivalent of the passage in the WIPO Performances and Phonograms Treaty (WPPT) that the US used as one of the justifications for the passage of the DMCA. So, not only does this treaty require a broadcast flag, it will be illegal to circumvent it.
Article 17
Obligations concerning Rights Management Information
(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute or import for distribution fixations of broadcasts, to retransmit or communicate to the public broadcasts, or to transmit or make available to the public fixed broadcasts, without authority, knowing that electronic rights management information has been without authority removed from or altered in the broadcast or the signal prior to broadcast.
(2) As used in this Article, “rights management information” means information which identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast, and any numbers or codes that represent such information, when any of these items of information is attached to or associated with 1) the broadcast or the signal prior to broadcast, 2) the retransmission, 3) transmission following fixation of the broadcast, 4) the making available of a fixed broadcast, or 5) a copy of a fixed broadcast being distributed to the public.
And don't try to make your copy of the broadcast of the State of the Union look like a legal, unbroadcast version.
Article 21
Provisions on Enforcement of Rights
(1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.
(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights or violation of any prohibition covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.
Many people argued that the WPPT didn't require the US to pass the DMCA, as Congress concluded, because the US already adequately protected the rights of copyright owners. As the US doesn't protect any "broadcast" rights (other than some "theft of service" stuff), this provision would pretty much require a US Broadcast Flag DMCA law to be passed.
Conclusion
This is bad, bad, bad. What more can I really say?
Co-Copyfighter and EFF attorney Wendy Seltzer has triumphantly written up the recent decision in the Canadian Recording Industry Association's (CRIA's) demand for filesharers names (Time to Move to Canada). Read the decision: BMG v. Jane Doe [PDF]. Furdlog has a roundup of news articles on the decision (Just In From Canada). Slashdot commentary here: Music Industry Loses In Canadian Downloading Case.
The CRIA really got hit hard in the decision. The judge in the decision slapped them down on nearly every level:
On the basis of the foregoing, it is obvious that in my mind the plaintiffs have not:- made out a prima facie case (their affidavit evidence is deficient, they have not made a causal link between P2P pseudonyms and IP addresses and they have not made out a prima facie case of infringement);
- established that the ISPs are the only practical source for the identity of the P2P pseudonyms; and
- established that the public interest for disclosure outweighs the privacy concerns in light of the age of the data.
A lot of the prima facie case problems (such as the affidavit evidence and linking P2P pseudonyms with IP addresses) was due to poor lawyering on the CRIA's behalf and can be remedied when a similar case is submitted. The second question about ISPs being the only practical source will also be rather easily established (unless the filesharing networks want to set themselves up for secondary liability in the US). The third question will mean the CRIA will have to move faster from the gathering evidence stage to launching lawsuits. How much faster is not quite clear.
The more significant aspects of the decision, the ones that Seltzer points out and celebrates are:
I'm afraid that I cannot share her enthusiasm.
The first point, about downloading being legal for personal use is a creature of Canadian law.
The second point is actually rather dangerous if interpreted broadly, that is, if you believe in the continued value of copyright law on the internet. The judge held that:
No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer user via a P2P service.
As far as authorization is concerned, the case of CCH Canada Ltd v. Law Society of Canada, 2004 SCC 13, established that setting up the facilities that allow copying does not amount to authorizing infringement.
The basic conceit here is that making a copyrighted work "available" through a shared directory is not the same thing as authorizing reproduction of the work and is not infringement. Furthermore, even if people actually copy files from the directory, the person making them available still isn't guilty of authorization of reproduction. The judge continues:
I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service. In either case the preconditions to copying and infringement are set up but the element of authorization is missing.
My first thought is that this is bad news for photocopy machines in Canadian libraries. If this ruling holds up and the Canadian legislature has to remedy the situation, I wonder whether photocopy machines in libraries will be exempted from the law as judges can't seem to distinguish them from P2P filesharing.
I'm not sure it matters given the library analogy, but I'm not really sure about specific facts regarding the software; does guilt here turn on the defaults of the P2P filesharing software? If the default is not to share, but the user enables sharing, is that "authorization"? If the default is to share, would that not constitute "authorization"?
The judge next addresses the question of distribution itself:
The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution. Before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying. No such evidence was presented by the plaintiffs in this case. They merely presented evidence that the alleged infringers made copies available on their shared drives.
Hmmmm ... well, then how did the plaintiffs find out about the files? Did they just randomly start polling IP addresses?
If this paragraph is read narrowly, then there is the possibility that using software like KaZaA will meet the requisite "advertising that [the infringing files] are available for copying." For example, such software frequently lets "super peers" know what is on the users drive and even answering search queries is a form of advertising. If this paragraph is read broadly, on the other hand, then there is no real digital copyright on the internet in Canada. Under a broad reading, people using P2P software cannot be found guilty of copyright infringement for making any commercially available digital file available via P2P software as long as they don't do anything else.
The logic of the judge's decision does not apply solely to music, but to any copyrighted file. Software, film, video, everything that can be digitized is fair game. Is this the right solution? Now, the CRIA obviously did a terrible job putting together their case. But if the court basically ruled that they can't put together any case for a large number of filesharers, copyright is in serious trouble. Does Seltzer prefer a broad or narrow reading of this decision?
According to the New York Times (reg. req.), Nielsen Media (the television ratings company) is under fire from minority groups because planned changes in its rating measurements will allegedly undercount minority viewers (Planned Nielsen Changes Criticized):
THE N.A.A.C.P. and leading members of Congress from both parties, including Senator Hillary Rodham Clinton, have added their voices to the growing number complaining that the proposed changes in how Nielsen gathers local television ratings will drastically undercount the number of black and Hispanic viewers.
The reasons for this alleged undercount are unknown.
This not the first time that the Nielsen's have been criticized for undercounting minority audiences, in fact it has been a consistent theme for a number of years. Of course, Nielsen is a private corporation, and no one can force Nielsen to use particular means and methods of measurement. Prominent politicians like Clinton and the head of the NAACP can complain and try to influence Nielsen, but there is not much they can do legally. Nielsen isn't perfect, but it is a business and must respond to business pressures. The broadcasters and cable channels that purchase Nielsen ratings are also businesses that must be responsive to the public.
So what happens in a government-mandated alternative compensation system that includes ratings? Often, these systems claim that they will reward artists based on some sort of Nielsen-like rating system. Will Nielsen still be independent then? Will Clinton, rather than simply complain, pass laws telling Nielsen how it will count the audience for particular works? If a large percentage of artist compensation is coming through a government-mandated system, will that system be able to remain independent of politics?
Would you want the FCC in charge of determing size of audience?
via boingboing
Andrew Grumet reports that broadcatching actually picked up some interesting and unexpected content (March 26, 2004):
When I logged in this morning there was a BitTorrent window open and a copy of Free Culture on my hard drive. Simon put this Creatively Licensed work on LegalTorrents, and the Radio plugin did the rest. What a pleasant surprise! [links in original]
Speaking of LegalTorrents, Grumet also notes that they now have "a music feed, a books feed and a movies feed" (March 28, 2004).
The Blogdigger Development Blog has some interesting updates on their integration of broadcatching. One obvious problem is that promiscuous use of broadcatching can lead to your system trying to download more media than makes sense (Radio and BitTorrent):
So for the second moring in a row, I logged on to my computer and noticed things were a tad sluggish. The culprit: the collection of around 25 BitTorrent sessions that had been initiated from subscribing to the Blogdigger torrents.xml feed! I killed most of the sessions, as they were for things that I was not interested in, but I did keep a few running (like the latest episode of Scrubs!).
Blogdigger is also putting together feeds for different media, including their existing feed for torrents (Blogdigger Media!). As Chris Pirillo says, "All your torrents are belong to us."
Adam Curry notes that it would be great to get the audio version of Larry Lessig's new book, Free Culture, downloaded a chapter every morning (free culture audio boook). More interestingly, Curry points out how, since each chapter of the book is being read by different bloggers, RSS makes a lot of sense for aggregating the spacially diffuse files. He also points to his early writing on the topic of RSS+BitTorrent, RSS: A Cool Web Service, near the bottom of the post.
Digiwar considers some new uses for RSS, including broadcatching (RSS, more then headlines). One cool use of RSS he mentions is a concert notification system, which lets you know when a concert is announced and reminds 30 and 2 days before the concert. Why not add a broadcatching that sends you a copy of the concert the next day or so?
KnowProSE, doesn't have much to say, but his brief comment is an interesting take on the appeal of BitTorrent (All you wanted to know about BitTorrent and were afraid to ask).
As an old school IRCer, I stayed away from Napster, Kazaa and all those other things. But Bittorrent with RSS has a lot of potential, especially for expanding on existing uses.
I've discussed the PIRATE Act here (PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry), which Copyfight has followed up here (Larry Flynt, Poster-Child for the PIRATE Act). However, having thought about the proposed law a little more, I came to an interesting realization: you can get wiretaps for federal copyright infringement investigations.
Under 18 USC 2516(3), you can get a wiretap for any "electronic communication" (but not for wire or oral communications) as long as "the interception may provide or has provided evidence of any Federal felony." Copyright infringement under 17 USC 506 is a felony. Under the proposed PIRATE Act, the government has options with regard to people who violation 17 USC 506 (Criminal copyright infringement). The government can criminally prosecute them or bring a civil suit. Either way, the government can use a wiretap to gather evidence for their case.
Under a regular civil suit for copyright infringement by means of file sharing, the copyright holder can only observe that the infringing files are available for download. They can't really tell how many people have downloaded them, if any. Furthermore, copyright holders have no way of going after people who are only downloading files and not uploading them. Wiretaps to the rescue. The RIAA may not be permitted to wiretap file sharers, but the government certainly can. The RIAA must be salivating at the prospect.
Conservative Senator Orrin Hatch (R - UT) has frequently cast aspersions on sexually offensive broadcast programming. For example, see his recent comments regarding the current brouhaha over indecency on television (Hatch Decries Declining Morals on Broadcast TV). Yet, the logic of his statements on behalf of the recently introduced "Protecting Intellectual Rights Against Theft and Expropriation Act" (PIRATE Act) would have the Department of Justice lawyers working on behalf of pornographers. In Hatch's world, the FCC would work to crackdown on indecency while the DOJ fought on behalf of pornographer's rights.
The PIRATE Act
Xeni Jardin of WIRED was, I believe, the first traditional journalist to write about the bill (Congress Moves to Criminalize P2P).
The essentials of the bill are actually quite straight forward. Instead of being required to bring only criminal copyright infringement prosecutions, the Act would permit the DOJ to bring civil copyright infringement lawsuits against copyright scofflaws. The bill does not change the standards for triggering DOJ concern under 18 USC 506 (basically, willful infringement for commercial advantage or a lot of willful infringement for no gain). The bill also establishes a pilot/training program and requires an annual report from the DOJ. Up to $2,000,000 may be allocated for the program.
There is one other important aspect of the bill. Once a copyright infringer has been busted by the DOJ and forced to pay a fine, the copyright owner can still sue the infringer for more damages. With a successful federal prosecution in hand, such a lawsuit would be a slam-dunk. Until the statute of limitations runs out (generally three years), a government-busted infringer is basically at the mercy of the copyright owner, who could likely bankrupt them on a whim. The only limitation on this is that any restitution payed due to the DOJ lawsuit would reduce or "offset" any subsequent civil action penalty. With a minimum penalty of $750 per infringement (and up to $150,000), this still leaves a major sword hanging over the head of DOJ-busted infringers.
Analysis and Commentary
Joe Gratz is absolutely right when he says this proposed act is simply rent-seeking (RIAA’s Next Step: A $2 Million Gift From Taxpayers):
[The Act] shifts the costs of civil copyright enforcement from copyright holders to taxpayers. The direct cost is $2 million dollars – a quick, easy $2 million wealth transfer to rent-seekers from society at large. Perhaps the larger cost is the further erosion of the public’s belief in the separation between government and big business.
Furdlog points out another cost of the Act; let's call it an "opportunity cost" (OK, That’s It):
Maybe these legislators think that the FBI should be spending their time on KaZaA instead of helping to explain the threat of terrorism to Condi Rice and the rest of this administration?
This theme is continued in the Washington Post (reg. req.) ('Pirate' Bill Aims Law at Song Swappers). Fred von Lohmann of EFF is quoted as saying, "The drumbeat here is that the entertainment industry would really appreciate it if the DOJ would do their dirty work for them." This is also a cost that can't be calculated in dollar bills. So far, the RIAA hasn't actually gone to trial. You can be sure when they do, the publicity won't be pretty. How much better for some AG to take some of the public heat, while the RIAA gets the deterrence benefit.
Speaking of the RIAA, co-Copyfighter Donna Wentworth points out the hypocrisy of the copyright industry's support for the bill (Funding the War on Filesharing):
Okay--so the recording industry rejects voluntary collective licensing, implying that it's a compulsory system and therefore tantamount to the dreaded government solution to a private sector problem. Yet it supports the PIRATE Act--a government solution that would have taxpayers paying for lawsuits, not music.
Speaking of hypocrisy, well, not exactly, we come to the part of this posting in which I explain how Sen. Hatch becomes the pornographer's best friend.
Hatch and Pornography
Sen. Hatch and Sen. Leahy (D - VT) are co-sponsors of the bill in the Senate and both had press releases trumpting how well they've done what Hollywood requested of them. See Leahy's press release here: Leahy-Hatch Bill Takes Aim At Copyright Infringement. However, I found Sen. Hatch's press release more entertaining: Hatch Continues to Fight Against Copyright Infringement.
Unlike Leahy's press release, which focuses solely on copyright infringement, Hatch's discussion reveals a strange obsession with pornography on P2P networks:
Unscrupulous corporations could distribute to children and students a “piracy machine” designed to tempt them to engage in copyright piracy or pornography distribution.
Unfortunately, piracy and pornography could then become the cornerstones of a “business model.” At first, children and students would be tempted to infringe copyrights or redistribute pornography. Their illicit activities then generate huge advertising revenues for the architects of piracy. Those children and students then become “human shields” against enforcement efforts that would disrupt the flow of those revenues. Later, large user-bases and the threat of more piracy would become levers to force American artists to enter licensing agreements in which they pay the architects of piracy to distribute and protect their works on the Internet.
....
Public health and safety are also directly threatened by business models that tempt children toward piracy and pornography and then use them as “human shields” against law enforcement.
My first thought was, "I'm surprised Hatch didn't pull a Gen. Jack D. Ripper imitation and start calling for protecting the precious purity of our children's bodily fluids." My second thought was, "does Hatch know what he is saying?"
Perhaps Hatch doesn't realize this, but most pornography is copyrighted and, as Hatch notes, is frequently distributed via filesharing networks. Since Hatch wants to stop copyright infringement and also discourage the redistribution of pornography, there is only one logical conclusion. This new law is meant to encourage the DOJ to go after those infringing pornography copyrights through P2P filesharing. By suing those engaged in pornography piracy, the DOJ could accomplish two of Hatch's goals at once: reducing infringement and pornography redistribution.
Titan Media, a producer of gay pornography, is well-known for its aggressive copyright infringement actions (Titan Media Pumped-Up over digital distribution). I'm sure that they would be more than happy to cooperate and coordinate with DOJ lawyers to stop piracy of their products. How proud Hatch will be when the first DOJ-acquired restitution checks are turned over to purveyors of smut.
Hatch and Titan Media in agreement at last.
Everyday it seems that there is something cool and neat in the RSS/BitTorrent/Broadcatching realm. Today is no exception. For example, Brian Clark, proprietor of the excellent Outside the System, suggests two business models for broadcatching.
Additionally, the music hacktivists behind Downhill Battle have launched Banned Music, a website dedicated to distributing unauthorized sampled music mixes such as the infamous Grey Album (About BannedMusic). Without discussing the merits of their concept (see here, here, here, and here for my take on related issues), they have come up with an interesting technology. Since many people haven't yet installed a BitTorrent client, Banned Music wraps their initiating .torrent files in a Nullsoft scriptable installer so that people automatically install the necessary software when they attempt to download the music (A New BitTorrent Downloader). The potential for this approach with regard to broadcatching is apparent.
Read on for all the latest broadcatching news ...
Counter-Intuitive Broadcatching Business Model
Brian Clark's Outside the System has a fascinating write-up on an alternative business model enabled by broadcatching (The Valley Cost Model: Broadcatching and Net Television). Writing from experience (cybercasting the Sundance Film Festival among other things), Clark notes that the costs of delivery for broadcatch are inverse to the demand, unlike traditional cybercast where delivery costs increase with demand. As Clark says, "The new mantra is: the higher the demand, the lower the cost.":
the idea that develops from this is one that is familiar to the Web: new content is free, and archival content costs. In this case, the relatively good gatekeeping of torrent files at the server level -- whether as authentication (seperate from a transaction) or a transaction (using something like BitPass) or even depublishing (no longer available) -- provides that potential....
As a model, that might mean you can afford to offer your "newest episode" for free for a limited period of time -- that period of time when your bandwidth costs are the lowest because peer swarming is the most efficient. At that point, the "other revenues" you can bring in might be sufficient since you spared the majority of the bandwidth cost. This even provides an added incentive to adopt the strange new tools needed to partipate in "torrenting with RSS feeds" (as it helps to ensure that you get your copy during the free period.)
This is just a taste, Clark goes into much more (interesting) detail. In particular, he looks at a possible ethos of such a system:
This is part of what makes the "new is free" model of the valley cost model so interesting for independents -- it reinforces the value of the most ardent fans and subscribers by giving them the content as close to free as the business model can allow, encouraging them to recruit new participants among the "first consumers" in much the way early fax machine owners pushed the adoption of faxes -- because that adoption adds value (in broadcatching's case, by lowering costs) to everyone in the network.
Read the whole thing.
Broadcatching and Public TV
Thomas Hazlett has written an article in The Hill on the coming death of analog broadcast for public television stations (Would last TV station turn out the lights?). Says Hazlett:
Broadcast stations’ volunteering to go dark sends a clear signal. Over-the-air transmissions are becoming useless, not worth the cost of firing up the transmitter.
Now Hazlett is primarily interested in freeing up the spectrum to use for other purposes, which is about as far as I go in agreeing with Hazlett here. Nevertheless, my second thought was why not broadcatching for public television stations (other than the fact that public TV is frequently more mercenary than commercial broadcasters)? Honestly, if the bandwidth costs can be shared or shouldered by the viewers, why shouldn't public TV make their content available to the public via broadcatching? Frankly, innovation-minded sponsors should require such distribution in return for their cash. Hello, Intel, IBM, and others.
Broadcatching and Porn - The Initial Killer App
Brian Clark suggested via email the killer app for early commercial adapters of the broadcatching paradigm: pornography. This is actually quite a good idea - seriously. Not that I would know about this personally or anything, but many pornography websites provide subscribers with periodically updated content in the form of bandwidth-intensive video. Heck, bandwidth costs are probably a major expense for pornographers and broadcatching would likely significantly increase their profit margins.
If there is one thing that can be said about pornographers it is that they are much quicker to exploit technological advances. Thus, pornography makes an excellent testbed for refining the technology as well as potential business models.
Roundup
Ross Karchner provides a couple of Venn Diagrams for RSS/BitTorrent/TiVo (Disruptive++). In addition to the nifty diagrams he says, "There has never been a more efficient path for video from the Internet to your TV."
LiveJournal member blueminder finds the concept of broadcatching addictive (rss addiction rekindling).
fling93 sees broadcatching as a boon to creators, especially the creator of Buffy: The Vampire Slayer and Angel (Television's Replacement):
[Broadcatching] means the Joss Whedons of the world will no longer have to pitch their shows to “Pointy-Haired Bosses” at networks (who air them out of order and then cancel them prematurely for not finding an audience). Instead, creative types can pitch directly to audiences.
And see his recent comment on this blog.
Research analysts are paying attention now. Jupiter Research's Michael Gartenberg writes that "This is the right idea but now it needs to be implemented for mere mortals to use" (RSS for TiVo). Yep.
Hublog reminds us of a concept similar to broadcatching with RSS + BitTorrent called "konspire" (Remembering konspire). As Hublog puts it:
The only real difference is that whereas clients poll the server to find out if an RSS feed has been updated, file servers send out pings to clients over the konspire network when new files are ready.
There's probably a good case for each of these systems, at particular levels of scale and channel popularity.
He's right. Too bad konspire appears to be defunct.
Feedster is adding enclosure support to their RSS feeds (Feedster Adds Support for RSS Enclosures !). Give it a try: Feedster feed with enclosure support.
Ubercyberprof Larry Lessig pointed to some "mash" multimedia from the Republicans (RNC Introduces John Kerry: International Man of Mystery). The Republicans are going to email 400,000 copies of the video to "Team Leaders" across the country. Broadcatching would make so much more sense ... and make the Republicans look technologically cool to boot.
On Saturday, Andrew Grumet announced the release of RssReader 0.4d (RssReader 0.4d). In Andrew's words, "RssReader is TiVo-resident software that displays the contents of an RSS feed on your television." Of course, who the heck really wants to read RSS feeds on television? Sounds like one of those dotcom-era WebTV-like monstrosities. Instead, Andrew notes that "More interestingly, RssReader can schedule recordings from syndication feeds containing RSSTV extensions. This means you can subscribe your TiVo to a community-evolved ToDo list, such as the feed generated by Program My TiVo!" Absolutely, and something I think has amazing potential (RSS for TV, Music).
However, I also think that there is not only a desire for at least some RssReader functionality on television, but important reasons to make it happen. Indeed, perhaps a grant from Homeland Security to Grumet would be in order.
Imagine an RSS feed that would scroll at the bottom of your television display while you watched any other channel, a news ticker if you will. It would be just like the scrolling feeds on the news and financial networks, but would be overlayed on top of whatever you are currently watching. Most importantly, the content would come from an RSS feed.
Emergency Broadcatching System
When I lived on the East Coast, the television was a major source for breaking emergency local news such as school closings, traffic conditions and weather alerts. Turn on the local morning news after a snow storm and there would be a scroll of the business and school closings and delays. Major accidents on I-95 would initiate traffic tickers and you would also see listings of various counties under blizzard alert or where snow emergencies had been declared.
There are a couple of problems with this system. First, you have to be watching a live, local station. What about those gentle souls who like to start their morning with a relaxing gardening show on Home and Garden TV while they sip a nice cup of herbal tea? Thanks to TiVo, what about those early-risers who want to watch David Letterman's top ten from the night before in the morning just before heading to the home office?
Second, these scrolls are not necessarily the most efficient way of getting information to the audience. The alphabetical listings of businesses and schools seem to get longer and longer every year. Currently, you have to wait like 10 minutes for the darn thing to scroll through the entire listing in New Haven (and Yale never closes anyway). And you know something? I couldn't have cared less about the storm alerts in Windham County; I was in New Haven County, darn it.
Seriously, wouldn't it make a lot more sense to have an RSS feed for such emergency announcements? I want my employer or my school district to let me know when I should come in late or not come at all, and I want to know whether or not I'm watching a live, local news show. As TiVo (and broadcatching) become more popular it becomes less and less likely that people will be watching live broadcasts or the major networks. If you are the state or county government and need to let everyone know that there is a snow emergency or get other information out to citizens, who have dozens or hundreds of television channels to choose from, you can't simply hope that your citizens are watching the local ABC, CBS, NBC, PBS or FOX affiliate. Heck, if for some reason the television broadcast is out (terrorists attack transmitters, for example), you might still be able to get information to people through their televisions.
Cable companies could probably do something like this at government request, but not everyone wants to be constantly bombarded with this information on all channels. Okay, I know my school is closed today and now I just want to watch Spongebob Squarepants in peace. I'm not sure what capability satellite companies would have to do this on non-local channels. In any case, people may want information from sources other than the government and I doubt cable or satellite companies will run tickers for them.
People should be able to subscribe to particular feeds for their specific needs and you should be able to turn feeds on and off. There should also probably be a flag that would could be set to permit interruptions (automatically making the feed visible on the screen) and allow you to turn the feed off after you've got the information (only to reappear if there is an update, for example).
Other RSS Applications
Of course, once this system is in place, there would likely be a number of businesses that could be created to take advantage of such scrolls. Obvious applications include stock tickers and sports scores. Why not keep up with the stocks you follow while watching The Simpsons instead of CNNfn? Watch your favorite basketball game and keep closer tabs on the other teams you are interested in, rather than all the other scores and other sports the station's tickers usually have. News junkies can have news tickers running even while watching other entertainment.
Personalization would be great. Who wouldn't want to wake up in the morning with a personalized ticker that would include local weather and local traffic? In Southern California, wouldn't it be great if you could subscribe to the 5 Freeway/Orange County feed, or the 605 & 10 Freeways Los Angeles County feeds? Watch a national news show, but get a local news ticker? News could be even more specific. For us Copyfight junkies, why not Michael Geist's Internet Law News as an RSS feed you could read while watching Good Morning America? Sure, there wouldn't be a lot of content that could be sent in such a format, but it would alert you to stories you should probably check out later (or sooner, as the case may be).
If your feed is good enough, you might be able to get a minimum of advertising into the feed, or draw people to your website. I think the first news companies that jump on making this happen will make quite the splash. How embarrasing would it be for NBC News to know that that those watching the Today Show are getting a CNN news and weather RSS feed scrolling at the bottom of their screen?
Making RSSTV, RSS + BitTorrent and Broadcatching Real
Of course, once such a system is built out, it would be very natural and easy to add RSSTV ability to the mix. Once you can subscribe to an RSS news ticker feed, how much more difficult would it be to subscribe to "channel" feeds that tell your TiVo to record particular programs?
After that, the next obvious step is RSS + BitTorrent broadcatching. Heck, Homeland Security might want to have such a capability built into a "Emergency Broadcatching System." For example, it might be necessary to quickly disseminate multimedia that the local TiVo stores and records whether or not the television is receiving (or television stations are broadcasting). You never know when such a capability might come in handy.
Of course, once you have broadcatching built into every TiVo, ReplayTV and whatever it is that the Dish Network uses, whole new possibilities open up...
The Dowbrigade News is quite excited by the possibilities of broadcatching (Video Aggregator 1.0).
A broadcatching discussion has been taking place on a Yahoo! BitTorrent group (RSS + BitTorrent = Broadcatching).
Jonathan Schull jumps on the broadcatching bandwagon and points to an RSS torrent feed (As Scott Raymond Foretold).
Dave Brondsema is experimenting with Grumet's work. If it works well, he promises to port it to a Linux client (spring break accomplishments).
Paolo Valdermarin sees potential for videobloggers (Are We Ready for Videoblogging).
realkosh, a self-described "aussie music fan," thinks the broadcatching concept is "excellent" (Promotional music should be free). He also has some interesting things to say comparing music to peanuts:
When was the last time you bought a peanut? Peanuts are something you just get for free. People buy peanuts to give to other people for free. I'm sure there are hundreds of people out there who buy more peanuts for other people than for themselves. Peanuts are just there when you go to your local pub. When you go to a party. Peanut night clubs where the peanut people go.
I like the analogy, but for the record will note that I do buy peanut butter.
Continue reading for many more links...
d-volution looks at the future of the internet and television with the advent of broadcatching (Weblog/RSS + Peer to Peer).
John Robb has a couple of posts on the subject. In the first he references a report he wrote in 1996 (Personal Broadcast Networks). In the second he successfully experiments with the technology and offers some suggestions (Andrew's BitTorrent Test).
Playlist Progress
Lucas Gonze reports progress on the development of a portable playlist (Radio TWF. :)). You can monitor the working group's progress here: Portable Playlist Wiki. Last week, Gonze also reported on a new Webjay feature: cannibalization, which allows users to copy another's playlists and add them into their own playlists (A New Webjay Feature: Cannibalization). This an excellent example of collaborative filtering in action. Not unexpectedly, a couple of day's later, The Tofu Hut, a playlist creator expresses mixed feelings about this cannibalization feature (Tofuhut sez). On the one hand, people who get the cannibalized list may miss some of the nuance and info that is part of Tofuhut's list. On the other hand, more people are exposed to very cool music. Tofu Hut's final position comes down nicely in favor of sharing: "Ego loses: the more the merrier is our motto."
IT Conversations
IT Conversations has a great interview with Andrew Grumet discussing the technologies he is creating, including broadcatching, of course (Andrew Grumet - March 22, 2004). IT Conversations' RSS feeds are enclosures enabled! How long before they add broadcatching capability?
Steve Kirks enjoyed Andrew's interview - noting that it was great for the morning commute (Listened to Andrew's interview). Wouldn't it be great if your car could broadcatch news stories overnight to listen to on the morning commute. That would be a killer app, I'm thinking.
Related Goodness
Scott Johnson promises "Good BitTorrent goodness coming [this] week" - could it be broadcatching related (Feedster, RSS and BitTorrent)?
Blogdigger provides a new RSS feed for newly discovered BitTorrent files. The feed is here: Blogdigger Torrents. via Lockergnome's RSS Resource
Softpile now provides new freeware and shareware RSS feeds (Softpile RSS Feeds). Select from a variety of categories, such as games, utilities, and education. also via Lockergnome's RSS Resource
I'm not really sure whether this has any application to broadcatching, but it seems interesting and something to think about. Joe Hall reports on a new RSS template which allows blog comments to be part of the feed (Full text RSS w/ comments).
The LA Times (reg. req.) reports that California state legislators are hauling water for Hollywood once again (Setting a Trap for Net Pirates). The basic idea of the bill is to extend a "true name and address" statute to cover virtually all exchanges of copyrighted audiovisual information. That is, if you send someone a copy of a recording or audiovisual work electronically without also providing your true name and address, you could be fined $2,500 and spend a year in the clink.
Read Assembly Bill 2735 (the Assembly Version): An act to amend Section 653v of, and to add Section 653aa to the Penal Code, relating to Internet piracy.
What is the point of this bill? According to a sponsor:
[State Sen.] Murray [D - Culver City] says the point isn't to take names; his idea is to give state prosecutors, who have no jurisdiction over copyright infringement, a charge they can bring against online pirates.
Hmmmm ... the concept of federal preemption of copyright law comes to mind. One might argue that many states have "true name and address" statutes, but they generally apply only to sales of physical goods. Like copyright law, this proposed law applies to any transfer (outside your home and family), not only sales. If this isn't preempted I'm not sure what would be.
And what is this? Hollywood can't afford to sue people? We citizens of California have to expend precious tax dollars and limited law enforcement resources on copyright enforcement because Hollywood is too darn cheap? With massive statutory copyright damages available as a remedy, there is no excuse for Hollywood not to prosecute copyright infringers directly. Heck, it could even be a profit center.
An Attack on Privacy and Anonymity
Read the EFF press release: California Bill Backed by Hollywood Attacks Internet Privacy. The EFF notes the pernicious effects on children's privacy: "These California anti-anonymity bills would force everyone - including children - to put their real names and addresses on all the files they trade, regardless of whether the files actually infringe copyrights."
There are many more problems with this bill as well. EFF notes that there are no exceptions for fair use. For example, if one emails a friend a copy of a political campaign commericial that includes copyrighted music, I'm a Dole Man comes to mind, you can be fined and sent to jail. Heck, posting and commenting on Janet Jackson's wardrobe malfunction could get you sent to jail.
This is certainly an attack on the anonymity protections of the First Amendment. Unlike commercial "true name and address" statutes, this bill reaches beyond a state's interest in preventing fraud to cover all types of anonymous speech, including speech that is clearly protected by the First Amendment. State Sen. Murray says, "There's one way to maintain your privacy in my bill. That is not to engage in illegal activity." But that is the problem. The bill strips anonymity even when people are engaging in constitutionally protected activities. On this basis alone, I believe it is clearly unconstitutional under the First Amendment.
An Attack on the Creative Commons
Even worse, there is no exception for permission of the copyright holder. So, if I record a song and post it under a Creative Commons license that permits redistribution but reserves commercial use rights, you can go to jail for redistributing it. I mean, really, what more can be said about such an overbroad bill?
We need to have a "true names" bill for politicians. By all rights, State Sen. Kevin Murray should start calling himself State Sen. Hollywood Sycophant.
UPDATE
You can find your California State representatives here: Find Your California State Legislative Representatives. Let them know what you think of these bills.
Thanks to all the recent publicity, Simon Carless reports on his ffwd blog that LegalTorrents, a site for legitimate music torrent files that is experimenting with broadcatching, has given away an additional 300gb of music (broadcatching in the dark fatman ides?). 300gb! I guess broadcatching works.
Outside the System has an interesting analysis of the possibility of micropayments combined with broadcatching (BitTorrent + BitPass: Ethos & Practicalities). Most interestingly, the author goes into some detail regarding the ethos of the concept, what one might also call the social norms.
Now, I'm not a big fan of micropayments, but I think there might well be a market for certain Big Media Objects (BMOs) if the payment isn't too small. For example, the author imagines films being made available through this method for $2-3. I could certainly see this sort of payment making sense for a series, such as the awesome Red vs. Blue, where you buy an entire season for, say, $5-20. Of course, a subscription model for all-you-can eat content *cough*music*cough* might be a very good model as well.
The best part of the piece though is the analysis of the ethos of BitTorrent and payments:
Does this mean that there is a common ground between independents and the BitTorrent community that allows for the introduction of transactions into the equation? There very might well be, and there seems to be little technical barrier in experimenting and seeing firsthand. It might even be a common ground that traditional media companies and the artists they distribute don't/can't/won't share, making this an emerging system ripe for independent adoption over corporate adoption. There are also tantalizing questions I still have about how this microtransaction model could interact with the tracker also running on that webserver -- the potential to allow fans to favor those "in the club" versus "outside the club" at the peering level, which could reinforce the idea that the independent media creator and their Internet fans are all in this together.
This is something that I have been thinking a great deal about and I think that there is something quite interesting here. I believe that a well-designed market using broadcatching would encourage cooperation between creators and consumers, turning distribution into a collaborative effort. Sure, corporations could play this game, but independents could be on an almost equal footing, both would have consumers as their partners. I'm still thinking about the possibilities here, but I think they may be one of the most significant aspects of broadcatching. Broadcatching could be much more than what the Hollywood Liberation Army calls "the holy grail of a profitable business model for independent movie-makers on the web" (BitTorrent, BitPass & Outside the System).
Unlimited Freedom has some interesting comments about the whole broadcatching concept (BitTorrent and Broadcatching). Most of his post concerns what he sees as various drawbacks of the BitTorrent protocol. While he makes some good points, overall I don't think they really undermine the broadcatching paradigm.
BT differs from other P2P systems in the algorithm that it uses to distribute data. That's what makes it work so well for large files. But there's no reason P2P networks couldn't be enhanced to use that algorithm. If they did so, they would be SUPERIOR to BT for almost every purpose.
No longer would you have to find a .torrent file host to download data. No longer would someone have to do something special and act as a seeder - they could just put the data file into their P2P shared directory and it would be available to the world. No longer would you have to beg people to keep their BT clients (instances of which are specific to the file being downloaded) running after the download finishes, scolding them about being "leechers" if they don't upload at least as much as they downloaded.
Actually, some P2P programs already implement versions of swarm download protocols. However, that doesn't mean they are necessarily superior to BitTorrent. In particular, the advantage of broadcatching is that you have RSS feeds letting people know when fresh content is available. Consequently, you are more likely to have people hitting the .torrent file shortly thereafter, which makes the whole swarm download thing work better. With other forms of P2P, even if you get an RSS notification of fresh content, you'll have to wait for that content to diffuse through the P2P network. Even for very popular files this might take hours or days. With broadcatching, because of the centralization of the seeding server, content diffuses as quickly as the RSS feed.
There is also a question of search horizon for large media objects with normal P2P. The most popular files would be available in the local P2P network, but less popular files would be more difficult to find. Centralized seeding servers mean that the search horizon is virtually infinite. Moreover, you might not get much swarm download benefit for less popular files with normal P2P, but a centralized seeding service would aggregate even widely dispersed interest in less popular files.
The question of leechers is an issue, but since broadcatching would be mostly automated (update RSS, check for new files, initiate BitTorrent for new files), chances are the defaults could be set to let the BitTorrent application run fairly regularly in the background.
Undoubtedly, there are improvements that can be made to the protocols, especially with regard to usability for the average consumer. Those advances will come with time.
Slashdot has actually covered the BitTorrent & RSS concept before (RSS & BT Together?), but the latest is probably the most interesting as the concept begins to sink in (RSS And BitTorrent, Together At Last). Below are a couple of interesting comments:
People keep trying to make BitTorrent something it isn't. And really, we should be fighting its corporate adoption in any form, as it's simply an attempt to shift server bandwidth costs to the client. ISPs eat that right now, but we're going to metered access if this keeps up.
Which is effectively getting us to pay for website access/services, but instead of giving the money to the content creators we'll be giving it to ISPs instead