mikeShriver

The founders of The Pirate Bay have been on trial in Sweden on charges of copyright violation. Final arguments wrapped up yesterday, and a judgment should come in the next few weeks.

The most interesting note from the trial: Witness for the defense Professor Roger Wallis, who testified about the impact of file-sharing on CD sales, was asked if he would like compensation for his trouble, travel and time. Wallis declined, instead asking that flowers be sent to his wife, Görel.

The community of filesharers responded with an overwhelming show of gratitude, sending over $4,000 worth of flowers the Wallis’ home (and that was before the news his Slashdot’s front page).

Wallis, a professor of media technology at Kungliga Tekniska högskolan in Stockholm, testified against the IFPI’s assertion that CD sales declines are due largely to online downloading:

There’s a multitude of factors that effects the decline in sales. The most important reason is that the CD isn’t a practical form of distribution when people want their music on their computers or on MP3.

He also drew upon the commonly used comparison with the VCR and personal tape recorder technology that came along in the 80’s. Personal tape recorders became an important part of music culture, allowing for cheaply produced independent music to be distributed underground, away from industry control.

The outpouring of gratitude puts a positive face on a group that is often labeled as criminal. If we can keep this kind of thing up, we stand a far greater chance of winning the hearts and minds of the general population, after all, who can resist a group that regularly sends flowers to adorable old swedish women?

Tags: copyright, IFPI, TPB.

The popular news aggregation site Digg is experiencing an upswell in comments because of actions it has taken against some of it’s members. There are reports that Digg has recently removed content and banned usernames and IP addresses of users who have posted stories containing a cracked AACS device key that can be used to decode movies stored on HD-DVD. This action was taken, presumably, in the face of a DMCA takedown notice sent to Digg on the part of the AACS group, the organization that controls the AACS content protection system. According to a comment on freedom-to-tinker.com:

The Processing Key will decode any current HDDVD release for which you know the Volume ID.

It is obvious why the AACS would want to keep such a key under tight control. Unauthorized HD-DVD players that used this key could be used to copy movies into a DRM-free format. Many Digg users see the ability to copy a DVD they purchased as a fundamental right. In copyright law, there is a clause called ‘fair use’ under which a legitimate user is allowed to make a copy of a work as a backup, or for personal use. DRM destroys that ability.

The apparent willingness of Digg to bow to the powers of evil has sparked a flood of Digg users expressing their discontent with their favorite news site. Post after post has related to the offending key. Some Digg users have gotten creative, printing the number on T-shirts, converting the number to other forms, and even colors.

The DMCA states:

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that–

`(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

`(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

`(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

By posting the key in various forms, the community aims to question what, exactly, counts as a “circumvention device.” It i clearly established to be illegal to post the key to the internet in its hexadecimal format. But what about if it is published in decimal format, or binary? What if instead of the internet, someone wears it around on a T-Shirt. What if the hex codes are split into six digits, and those clusters then interpreted as colors? Has a circumvention device been disseminated then?

A similar thing happened on a smaller scale when the infamous ‘DVD Jon’ wrote and distributed his program “DeCSS” which was able to decrypt and play DVD movies. The comment storm on Digg seems to want to bring the debate about circumvention devices back into the public sphere.

There is much talk on Digg right now about ‘digital revolution’ or ‘revolt.’ Of course, the comments posted on Digg are nothing like a real political revolution. This is merely the irate voice of the young generation speaking up about something they feel strongly about. There is a great deal of concern that the current corporate, money driven culture poses a sincere threat to the rights of free speech that Americans enjoy.

The DMCA has a provision in it that allows for a web site to escape culpability if it immediately complies with a takedown notice, no questions asked. This clause can be, and has been used to coerce web sites, ISPs and hosting companies to remove user content without any option of recourse on the part of the user. This has staggering implications for free speech activists. It means that anyone on the internet, at any time can be silenced with no reason given, and not chance for rebuttal. This is what we are seeing on Digg right now. Digg’s seeming willingness to cave into the requests of the big companies has severely upset its freedom of speech-loving users.

There are, of course, other issues. For instance, the need for the AACS group to take legal action against sites that distribute their secret keys illustrates a major problem with this supposed ‘content protection system.’ It becomes obvious that this system which is designed to protect digital content is no better at protecting the content than the means it replaced were.

Before AACS, and other forms of DRM which have failed similarly, creative works were afforded protection via laws that made it illegal to copy and redistribute someone else’s creative works. Those laws still exist, but the internet has made copying and redistribution of creative works, especially music and movies, trivial. DRM as an artificial barrier to the ease with which files can be copied in order to reduce the amount of copied music on the internet.

The primary problem with DRM is that it is only as strong as it’s most guarded secret. Unfortunately, for DRM to be useable, that secret has to be distributed to all the legitimate users. Once that key has been distributed to legitimate users, it is trivial to distribute that key to the illegitimate users as well. New laws must be created to make it illegal to spread the secrets that DRM relies on. This is where the DMCA comes in. The DMCA states:

`(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES- (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

This portion of the law was designed, essentially, to protect the protectors. Previously, copyright protected the creative work itself, with the creation of DRM, copyright has been extended to protect the secrets that are used to protect the creative work. See the problem? We started out with a system of laws designed to protect creative works, now we have a system of laws to protect the secrets that protect the creative works. Ultimately, the only thing that actually ‘protects’ the content is, as it always has been, the law.

So we haven’t moved forward since the DMCA was passed, in fact, we have really moved back. One unfortunate downside to the creation of DRM has been widespread problems accessing content by legitimate users. DRM has spawned a huge number of competing formats in the marketplace for digital media. Most proprietary players won’t play a compteting player’s format. Purchasing an iPod or Zune all but locks you into that vendor’s online music store. If your music player breaks and you decide to go with a different brand, you won’t be able to migrate your old music collection to your new player.

From here on out, though, Digg users have two choices. They will most likely settle back into their normal lives of digging and commenting on stories that interest them, letting the memory of this unique event fade away. If they truly believed the things they so loudly proclaim, though, they will take their voices to the people: friends and family, strangers on the streets, and most importantly, their politicians. If they can do that much, they may have a real revolution on their hands

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It is becoming increasingly apparent that the current ways of selling music have become obsolete. Record companies are losing business and money. Not only that, a lot of us are sick of hearing about the music industry’s addiction to its outdated business model. Today alone, there have been three stories on Slashdot about the RIAA’s legal antics, and from the looks of those stories, it doesn’t look good for the music industry.

In 2002, when the RIAA started it’s campaign of lawsuits again individual filesharers, the internet community responded vocally. Bloggers and their readers were outraged at an action that essentially amounted to extortion by lawyer. While Anger and frustration were common themes, concern and fear for the victims was also present. People spoke out against the frivolous cases brought against people who lacked the motivation, or even the means, to infringe on the RIAA’s copyrights. It seems like every third day for years a new story has hit the frontpage about some deceased old lady, single mother, or technologically isolated family that has been slapped with an infringement suit. The actions of the record companies were so obviously evil that it was hard not to feel contempt for them. Well, now some of those cases are starting to wrap up, and it is beginning to look as if the RIAA is not only evil, they are also losing the war.

Of course, a few stories on Slashdot hardly make a trend. Still, the lawsuits that make the frontpage there have serious implications for the future of the industry’s litigation campaign. For instance, because of the outcome of one of the Capitol Records vs. Foster case, the RIAA may be forced to pay legal fees for defendants which have committed no wrongdoing. This, alone, will force a major change in the RIAA’s tactics.

An even bigger indication of the industry’s obsolescence comes from their own financial reports. Music just isn’t selling like it once did. Industry representatives will tell you that it is due to uncontrolled digital piracy. They argue that people who download music no longer have to buy it, so they don’t. That scenario is likely true, but it lacks the scope to address the wider issue. Listeners are simply starting to acquire their music differently, and if the industry is going to survive this shift, they are going to have to adapt faster, and this means killing off some of their favorite products.

One of the biggest casualties of the now-ubiquitous internet is the album. It used to be that a record label could sell a group of 15 of songs based on the merits of the single. The quality of the rest of the album was largely irrelevant to the listener at the time of purchase. The other 14 songs could be as great as the single, or, more likely, they could could just be filler. As a listener your options were to either buy the whole album for 15 bucks or to get the single for two or three. Now, though, anyone can purchase any single track they like for about a buck from an online music store. consequently, the album, as it has existed for decades, is not selling like it used to. People have better options. Pretty soon only the nostalgic will want to spend money on a physical album, and that market has already been filled with vinyl.

The good news for the industry is that digital distribution costs are radically lower than the than the costs to distribute physical media. The bad news is that if they don’t realize this soon, they are going to become irrelevant. The drop in cost of distribution is already being taken advantage of by independent labels and artists. Bands are starting to realize that they don’t need a big label to become successful anymore, and without artists to support the big record labels, the mainstream industry is going to collapse in on itself.

If their behavior is to be any indicator, the big record labels realize that their doom is forthcoming. These recent legal actions are the last struggles of a business trying to force its old business model to work. It won’t work, market forces are too powerful to strongarm with a few lawsuits. It’s probably for the best, though. I would love to see more diversity of music and independent bands succeeding through underground marketing.

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