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Posts Tagged ‘law’

Is the Kozinski story less than it seems?

Posted by Fred on June 13, 2008

By now everyone knows the story of Alex Kozinski, Chief Judge of the 9th Circuit Court of Appeals, who recently suspended an obscenity trial due to some issues of his own:

A closely watched obscenity trial in Los Angeles federal court was suspended Wednesday after the judge acknowledged maintaining his own publicly accessible website featuring sexually explicit photos and videos.

Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, granted a 48-hour stay in the obscenity trial of a Hollywood adult filmmaker after the prosecutor requested time to explore “a potential conflict of interest concerning the court having a . . . sexually explicit website with similar material to what is on trial here.”

That’s a story bound to attract attention, what with the sex and the alleged hypocrisy.  Prof. Lessig, however, says all is not as it appears to be:

What I mean by “the Kozinski mess” is the total inability of the media — including we, the media, bloggers — to get the basic facts right, and keep the reality in perspective. The real story here is how easily we let such a baseless smear travel – and our need is for a better developed immunity (in the sense of immunity from a virus) from this sort of garbage.

Here are the facts as I’ve been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski’s son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it.

Cyberspace is weird and obscure to many people. So let’s translate all this a bit: Imagine the Kozinski’s have a den in their house. In the den is a bunch of stuff deposited by anyone in the family — pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family’s stuff. He finds some stuff that he knows the local puritans won’t like. He takes it, and then starts shopping it around to newspapers and the like: “Hey look,” he says, “look at the sort of stuff the judge keeps in his house.”

This analogy, I submit, fits perfectly the alleged scandal around Kozinski. His son set up a server to make it easy for friends and family to share stuff — family pictures, documents he wanted to share, videos, etc. Nothing alleged to have been on this server violates any law. (There’s some ridiculous claim about “bestiality.” But the video is not bestiality. It lives today on YouTube — a funny (to some) short of a man defecating in a field, and then being chased by a donkey. If there was malicious intent in this video, it was the donkey’s. And in any case, nothing sexual is shown in that video at all.) No one can know who uploaded what, or for whom. The site was not “on the web” in the sense of a site open and inviting anyone to come in. It had a robots.txt file to indicate its contents were not to be indexed. That someone got in is testimony to the fact that security — everywhere — is imperfect. But this was a private file server, like a private room, hacked by a litigant with a vendetta. Decent people — and publications — should say shame on the person violating the privacy here, and not feed the violation by forcing a judge to defend his humor to a nosy world.

According to Jesse Walker (linking to conservative pundit Patterico), the lawyer with a grudge who outed Kozinski was Cyrus Sanai.

I don’t think the professor’s analogy is entirely apt – the server in question was accessible to the world at http://alex.kozinski.com, although the index page just provided a message telling a visitor to go away.  That’s not really private, and blocking the Google spider via a robots.txt file doesn’t make it private either.  It could have been private with a password or other security, but it wasn’t.  So it’s not really the same as Judge Kozinski’s house.  But it’s not a “publicly accessible website featuring sexually explicit photos and videos” either.  Nor is the material revealed to date a “sexually explicit website with similar material to what is on trial” before the Judge.  It appears to be far more akin to the sort of mildly offensive viral email that would have gotten Kozinski in trouble had he forwarded it from work.

None of this should bar Judge Kozinski from presiding over this trial, of course.  Who is really aggrieved by any of this?  This offended lawyer with a grudge, to be sure.  People who hate judges generally or the 9th Circuit in particular.  People who think pornography should be excised from society by any means necessary and are afraid Judge Kozinski won’t put this particular smut-peddler in jail where he belongs, even if he didn’t actually break any laws.  That’s not necessarily a huge group, but it is a loud one, so this story isn’t going anywhere anytime soon, truth be damned.

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Wired Gets It Right: The RIAA Still Thinks MP3s Are Illegal

Posted by Fred on January 10, 2008

Wired’s Ryan Singel says what I’ve been saying about the RIAA’s view of personal-use CD ripping:

So, to sum up, the RIAA does believe that a majority of American music buyers are thieving criminals, but it’s not going to sue anyone over ripping MP3s because) a) it’s not really a big deal to them anymore b) there’s no real way to find out and/or c) it would be terrible publicity to sue someone for using an iPod.

In the comments to the Wired blog post, Mike Masnick chimed in with his interpretation of the situation – the RIAA thinks that CD ripping is unauthorized, not that it is illegal. This is splitting hairs of the worst sort.  The Copyright Act gives the copyright owner exclusive rights, and anyone violating those exclusive rights has infringed the copyright. Making a copy for personal use won’t expose you to criminal liability, but if it’s unauthorized, you could face civil liability under Section 501. In the colloquial sense, then, there’s no difference between unauthorized and illegal.

Masnick and the RIAA’s defenders argue that ripping the CD is unauthorized, but you may have a defense in an infringement action.  Other than a defense of “I didn’t do it,” the most obvious statutory defense is fair use under Section 107, but it’s hard to see how ripping a CD is “criticism, comment, news reporting, teaching, scholarship, [or] research.” This kind of personal use would seem to satisfy some of the factors in Section 107 (it’s non-commercial and arguably doesn’t impact the potential market value of the copyrighted work as you’ve already bought it), but to my knowledge, no court has ruled that any use is entitled to the fair use defense other than the specific categories listed in 107.

No, I think Wired’s got it right. The RIAA thinks converting your CD to MP3 is copyright infringement, but they haven’t sued anyone for it. They haven’t sued anyone because they have no real means to know who’s done it, and because the PR fallout would be a nightmare.  They definitely think you should have to pay more than once for the same content if you want it in more than one form, however, and agreeing that ripping a CD is legal would give up that fight.  They won’t get what they want in suits against you and me, however.  Instead, they’ll go after Diamond for creating an MP3 player, after Sony for creating DAT, after XM for a satellite radio that can store music. They’ll try to get mandatory royalties on CD-Rs and Zunes and iPods.  They’ll try to get Congress to force consumer electronics manufacturers to include anti-copying circuitry in their products. They’ll fight to keep the DMCA, which allows them to create anti-ripping technology that you can’t circumvent.  The effect is the same – either (a) pay for the CD, then pay for the digital download, then pay again for the ringtone or (b) buy the content once but pay a bunch of royalties on the technology you use to place-shift.

Posted in Music, Technology | Tagged: , , , , , , | Leave a Comment »

Sony announces Musicpass, the Betamax of digital music

Posted by Fred on January 7, 2008

musicpass_cards_pr.jpg

Last week, Sony made minor news (call it a newslet) by finally joining the Release a Tiny Portion of their Music Catalog as MP3s Party, becoming the final major label to sell music without DRM.  This week, Sony announced the details of their new Musicpass service, and it just may be the dumbest idea ever to come from Sony, which is saying a lot. Want to download a song via Amazon or iTunes? Nope, because that would actually make sense.  Instead, you’ll have to schlep down to a bricks and mortar store and buy a Platinum Musicpass gift card for $12.99 or $19.99, take the card home, scratch off a little strip, go to the Musicpass site and input the code heretofore hidden by said little strip, and then download the songs and “exclusive bonus content.”

Sounds incredibly stupid, no?  But wait, there’s more.  You can’t buy the gift cards online, you have to have the little plastic rectangle.  You can’t send a gift electronically – maybe Sony’s getting a kickback from Hallmark for all the cardboard rectangles people will buy to send the plastic rectangles as gifts.  If you do buy a Musicpass card, it’s not just for $12.99 worth of digital tunes, it’s for a specific album.  That means there are no singles, and the gift card suddenly became 97% more useless as a gift.

Let’s presume you manage to find an album you want among the 37 available at launch, say Britney Spears’ Blackout or Barry Manilow’s The Greatest Songs of the Seventies. You could go down to Best Buy and drop $12.99 on the gift card, jump through all the hoops Sony has placed in your path, and import the MP3s into iTunes.  Or you could just buy the CDs for $12.99 or $13.99, stick the disc in your computer and let iTunes create its own DRM-less files.  You’d lose the “exclusive bonus content” but gain a handy plastic disc to use as backup or turn into a Christmas tree ornament or coaster.  Of course, in doing so, Sony would say you’ve stolen a copy.

It’s hard to envision the target market for this service, which makes one suspect Sony engineered it to fail.

Customer: That’s stupid.

Sony: Look, we didn’t make any money from our MP3 service, which just proves that people are thieves at heart who need to be held back with new laws. Or rootkits.

Customer: But your service is stupid, and could be improved by a bunch of blind, deaf monkeys typing their new business plan on manual typewriters lacking the letters “s” and “e”.

Sony: Thief!

[via BB Gadgets or Download Squad, I can’t remember which because the utter stupidity of Sony’s plan has broken my brain]

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Does the RIAA believe personal copying is legal? No.

Posted by Fred on January 4, 2008

There’s been a bit of a kerfuffle lately regarding some statements made by the record industry in a brief filed in their case against Jeffrey Howell.  The plaintiffs in that case said that “[o]nce Defendant converted Plaintiffs’ recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs.” Marc Fisher at the Washington Post interpreted that statement to mean that the industry believes that the act of converting your own CDs to MP3s is an unauthorized use.  Others, notably Mike Masnick (notable given his continuing battle against old business models, which inherently includes a lot of criticism of the RIAA), argued that Fisher got it wrong, and what the industry really meant was that placing the MP3s in a shared folder accessible to the world was an unauthorized act.  To wit, rip all you want, just don’t share.

Fisher refused to back down.  The RIAA refused to clarify its position.  Yesterday, Fisher and RIAA President Cary Sherman appeared together on NPR to discuss the issue.  As one would expect in any battle of wits between a lobbyist and a print reporter, Sherman had a decided advantage.  CNET’s Greg Sandoval, himself a former Post reporter, says that the RIAA shredded the Washington Post story in the on-air debate:

But as numerous bloggers and copyright experts have noted, the quotes cited by Fisher are incomplete. Fisher wrote that the RIAA had argued in the brief that MP3 files created from legally bought CDs are “unauthorized copies” and violate the law.

“The Post picked up one sentence in a 21-page brief and then picked the part of the sentence about ripping CDs onto the computer,” Sherman said during the radio show. “(The Post) simply ignored the part of the sentence about putting them into a shared folder.”

The “shared folder” omission is at the center of what’s wrong with Fisher’s story. Anyone who reads the brief can see that the RIAA says over and over again what it considers to be illegal activity: the distribution of music files via peer-to-peer networks.

Sandoval says that Sherman missed a golden opportunity to clarify the RIAA’s position.  In his follow-up post, Masnick agrees with Sandoval.  And indeed, when asked directly whether it is legal for an individual to make MP3 copies of his or her own CDs, Sherman refused to answer the question, arguing that copyright law is too complex for such a simple statement.  Sherman went on to claim that the RIAA’s record is clear — “Not a single (legal) case has ever been brought (by the RIAA against someone for copying music for personal use) … Not a single claim has ever been made.”

So what’s the truth? As usual, it’s somewhere in the middle.  Fisher is almost certainly wrong about the Howell brief, which was inelegantly worded, to say the least.  That case follows the RIAA’s pattern – Howell shared some songs, so the record labels sued him.  Rather than prove that anybody actually downloaded the songs, they rely on proof that he put them in his shared folder.  Whether ripping the songs to MP3 was legal is essentially irrelevant, given that sharing the material via Kazaa certainly isn’t.  But as usual, the RIAA is being disingenuous, and Sandoval and Masnick have gone too far in claiming the record industry believes that converting your own CDs to MP3 is a legal use.

So what does the RIAA actually believe? Go to their site, and you can get the industry’s take on The Law.  Included there is a list of ways you can break the law, with horrendous consequences (Do the Crime, Do the Time…).  The list includes this nugget:

You make an MP3 copy of a song because the CD you bought expressly permits you to do so. But then you put your MP3 copy on the Internet, using a file-sharing network, so that millions of other people can download it.

That’s entirely consistent with the Sandoval/Masnick view of the Howell brief – it’s the file sharing that’s the problem, not the ripping.  But note what the RIAA also says – it was OK to make the MP3 because the CD you bought expressly authorizes you to do so. That is, you don’t have a legal right to make the MP3; the industry granted you a right via the terms of the CD license (remember that in the industry’s view, you don’t own the song, you own a license to play the song).  What the RIAA grants, it can take away.

Later on that page, the RIAA says that you do have a legal right to “copy music onto an analog cassette, but not for commercial purposes.”  They don’t say that this legal right comes from the Audio Home Recording Act, enacted in 1992 as a means to permit electronics manufacturers to produce digital recording devices without fear of RIAA lawsuits.  The RIAA also says that you have a legal right to “copy music onto special Audio CD-R’s, mini-discs, and digital tapes (because royalties have been paid on them) – but, again, not for commercial purposes.”  That’s also a right granted by the AHRA.

So what about MP3s or songs burned onto discs that you haven’t paid the RIAA extra for?

Beyond that, there’s no legal “right” to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as:

  • The copy is made from an authorized original CD that you legitimately own
  • The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.

Ah, so the RIAA position becomes clearer.  You don’t in fact have a right to transfer your own CDs onto your iPod.  Rather, this particular unauthorized use “won’t usually raise concerns.”  This is absolutely consistent with the industry’s longstanding view that making recordings at home is illegal but unenforced.  If the RIAA believed that home copying was legal, we wouldn’t need the AHRA. We wouldn’t have had lawsuits against Sony for the DAT and Minidisc or against Diamond for the MP3 player.

What the record industry really wants is for you to pay again for every copy of a song in a new medium. Pay for the CD, pay again for the download, pay again for the ringtone, pay for using Pandora, pay for using XM.  They were able to extract this concession from Sony in 1992, but customers have gotten around paying twice by using data CDs instead of more expensive (but identical) audio CD-Rs.  They were able to extract a concession from Microsoft with the Zune, but Apple has refused to pay a tribute to our RIAA masters.  They’ve tried to get mandatory royalties from Congress, but have thus far been unsuccessful.  What they haven’t done is sue individuals for making personal copies not expressly authorized by the AHRA. Yet. Sony’s Jennifer Pariser let the industry’s real position out of the bag when she testified that “when an individual makes a copy of a song for himself, I suppose we can say he stole a song.”  Sherman now says that Pariser misspoke because she misunderstood the question, but the question really wasn’t hard to understand – any lawyer worth the parchment her diploma is printed on should have understood it. Certainly she misspoke, but not because she misunderstood – she misspoke because that particular view is not yet ripe for public discussion.

The bottom line really is simple.  The RIAA does not believe you have a legal right to transfer songs to your MP3 player.  You only have that right for media that the RIAA gets its racketeering cut from.  But the RIAA recognizes (a) that suing individuals for making personal copies would be a public relations disaster, and (b) any such claims would likely result in legislation making such copying explicitly legal, which would take away a justification for mandatory royalties from electronics manufacturers.  All they really want is to get paid over and over again.  How they get there is immaterial.

Posted in law, Music, Technology | Tagged: , , , , , , , | 1 Comment »

New developments for the West Memphis 3

Posted by Fred on October 30, 2007

pl_cover.jpgBefore the Jena 6, there was the West Memphis 3.  Jason Baldwin, Jessie Misskelley and Damien W. Echols were convicted in Arkansas in 1994 of the brutal murder and mutilation of three eight-year-old boys. Prosecutors portrayed the defendants as black-shirted Satanists who enjoyed heavy-metal music and ritual sacrifice. Defenders say the three were railroaded by overzealous prosecutors and townspeople afraid of their taste in clothes, taste in music (the cover of Metallica’s Master of Puppets was introduced as an exhibit at trial) and general outsiderness. It does seem clear that the “confessions” were suspect at best, particularly that of Misskelley. The case spawned two excellent documentaries, Paradise Lost: The Child Murders at Robin Hood Hills and Paradise Lost 2: Revelations.

Watching the documentaries, I certainly came away thinking that (a) Echols was severely troubled and ill-served by the school system and local social service infrastructure and (b) the three may have been guilty of something, but the murder case was a pile of stinking monkey feces fueled by the same sort of Heavy Metal Hysteria that blamed Don’t Fear the Reaper for suicide in the 1980s or Marilyn Manson in the 1990s. It seemed inevitable that new evidence would come to light or the system would reconsider, but if anything local opinion became even more firmly entrenched over the next 13 years. Now comes word of a defense filing calling the original case into serious question:

In 1994, three teenagers in the small city of West Memphis, Ark., were convicted of killing three 8-year-old boys in what prosecutors portrayed as a satanic sacrifice involving sexual abuse and genital mutilation. So shocking were the crimes that when the teenagers were led from the courthouse after their arrest, they were met by 200 local residents yelling, “Burn in hell.”

But according to long-awaited new evidence filed by the defense in federal court on Monday, there was no DNA from the three defendants found at the scene, the mutilation was actually the work of animals and at least one person other than the defendants may have been present at the crime scene….There was no physical evidence linking the teenagers, now known as the West Memphis 3, to the crime.

One hopes the barely luminescent glow off in the distance is the light at the end of the tunnel for these boys, but it seems unlikely that anyone but the court can save them now. Luckily, Echols sits on death row still, so if they are to be freed it’s not too late.

ico_shoutbox.gifvia Hit & Run

Posted in law | Tagged: , , , , | 1 Comment »

Sony Says “Stop, Thief!”

Posted by Fred on October 4, 2007

As seen on Gizmodo, news from the first file-sharing case to go to trial:

The labels’ first witness, Jennifer Pariser, head of litigation for Sony BMG, offered testimony that pretty much encapsulates everything wrong with the way the RIAA sees things. When asked if it was wrong for consumers to make a single copy of music they’ve purchased, she responded, “When an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Making “a copy” of a song you bought is “a nice way of saying ‘steals just one copy.’ “

It’s worth noting a few things. First, Ms. Pariser was a witness for the defense, not the labels, and she did a very fine job of serving the purpose for which she was called, namely putting in the record just how extreme the labels’ position is.  Second, as many others have noted, Song BMG’s position would seem to be decidedly at odds with Sony’s electronics division, which makes many devices capable of copying digital audio content and playing the copied content back. It’s bad to “steal” but OK to make lots of money selling products on which you can play your “stolen” music, apparently.

Finally, it’s not at all clear that Sony is wrong, legally (they’re certainly wrong morally and ethically). The Audio Home Recording Act purported to make it legal for consumers to make personal copies and for manufacturers to make devices that copied recordings, but the Act only covers “the noncommercial use by a consumer of a [digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium] for making digital musical recordings or analog musical recordings.”  It’s not at all clear whether iTunes, computer hard drives, CD-Rs and iPods are covered by the Act. Common sense suggests they should be, as should anything whose primary purpose is placeshifting music, but when have the labels ever embraced common sense?

Finally, this is a civil trial before a jury, a place where jury nullification thrives. Even if Sony is right legally, this testimony is bound to come back to bite them in the Pariser.

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