The BSA rejects INDUCE. The EFF quotes their letter:

[W]e believe that the draft circulated this week would encourage litigation and ultimately require responsible companies to spend resources defending themselves, even when no illicit aims are present.

And the NYTimes runs an article:

Other opponents point out that peer-to-peer technology is not something that can be successfully constrained by new laws. A company can be prevented from making commercial gains with a product that uses peer-to-peer networking, but how would a law stop the tinkerers and programmers who know how to create peer-to-peer software and willingly share their innovations on the Internet?

CNet:

Rival technologies that baffle consumers will run more companies out of business in the nascent music download market than will head-to-head competition, one of the lead creators of MP3 playback technology warned Wednesday.

From Engadget:

Seems Sony is going through something of a change of heart recently: following its decision to support MP3 in its audio players comes news that, in Japan at least, Sony Music Entertainment is ditching copy-control CDs from November.

PubPat’s press release at Groklaw:

Relying predominantly on evidence provided by PUBPAT when the reexamination was requested, the Patent Office made multiple rejections of the Redmond, WA based software giant’s patent. Microsoft has the opportunity to respond to the Patent Office’s rejection, but third party requests for reexamination, like the one filed by PUBPAT, are successful in having the subject patent either narrowed or completely revoked roughly 70% of the time.

Wired:

Like the first version of the controversial bill – which is championed by the music and movie industries – the latest language says that a company that intentionally induces a person to infringe copyright is liable.

Ernie discusses the pros and cons of a new copyright bill. The MPAA wins on criminal penalties for camcorder recordings of movies, but

The most interesting part of 4077 […] is the Family Movie Act portion, which allows aftermarket modification of films. This activity, generally to remove profanity, nudity, or violence, is now an unauthorized derivative work, forbidden to all but the copyright owner. The MPAA has used copyright law to shut down shops which doctor movies in an unauthorized way.

Tension at the Digital Hollywood conference:

On Wednesday, executives from P2P software companies, along with audience members from a panel at the Digital Hollywood conference, openly argued–Jerry Springer-style–about whether sharing and downloading copyrighted film and music files over distributed file networks is legal.

Go team!

Those of us concerned about overreaching copyright law have long warned about the law’s threat to innovation; for example, Fred says:

Technology companies would find themselves under constant pressure from entertainment industry lawyers waving their newly-minted “inducement” law. This means many great products would be hobbled, and many others would never be built. Less flexible, less useful products means fewer sales, lower revenues. That’s a tax on our nation’s technology companies, a damper on earnings, a drag on competitiveness.

“Big Content” is catching on and tossing the same rhetoric back:

[Studio executives] warned that copyright concerns could delay for years new products and services that fully take advantage of the new technologies.

But the real fear is this:

Executives fear consumers could soon have so much control over when and how they consume their products that the studios will wind up losing out.

How terrible, that we would have control over when and how we consume!

Those in favor of copyright reform are often seen as Marxists, when in fact it’s a truly bi-partisan issue. When we have discussed the issues with politicians, we get positive interest from Democrats and Republicans both.

More proof:

The nation’s oldest conservative group has become the latest and most vocal critic of an anti-file-swapping bill that foes say could target products like Apple Computer’s iPod. The American Conservative Union (ACU), which holds influential Republican activists and former senators on its board of directors, is running newspaper and magazine advertisements that take a humorous jab at the so-called Induce Act–and slams some conservative politicians for supporting it.

Two Wired articles on free content: an update on Kahle vs. Ashcroft discussing “orphaned content", and an article about the Outfoxed documentary which is being distributed for free on the internet with encouragement to mix it up. (Although the clips from Fox news can’t be distributed, unfortunately.)

Steven Levy in Newsweek:

As residents of the Gulf Coast were reminded last week, there’s no turning away nature. You can’t pass a law that snuffs a hurricane at the border. You can’t sue it. You’ve got to understand it, and make the right plans to deal with it. Technology generates its own form of nature, a set of conditions that enforce an artificial, yet equally unstoppable, reality.

In The Economists’ Voice:

[T]he worst of the Sonny Bono Copyright Term Extension Act’s effects can still be made to disappear, if courts deem it “fair use” to copy an old work whose copyright owner hasn’t taken reasonable steps to provide notice of his rights. This is what Bill Patry and I propose in a forthcoming article in the California Law Review.

CNet and Corante have articles about automated legal filings by the MPAA. Donna notes

the trend toward automatic weapons-style litigation campaigns. This is when companies or industry groups like the RIAA and MPAA use key-word searches and the like to target possible infringers before firing off round after round of seemingly indiscriminate cease-and-desist letters. The problem with this is that even if the recipient is 100 percent innocent, he or she may have no idea of how to respond to the intimidating legalese/exhorbitant demands in these letters.

Nice WSJ article about the new Creative Commons CD. Le Tigre is on the disc – lyrics from Kathleen Hanna’s earlier band seem appropriate:

It doesn’t matter who’s in contol now
It doesn’t matter cuz this is new radio

Good info from Ernest, the EFF, and Public Knowledge on a letter to Congress about the INDUCE act.

Excerpt from the letter:

The Copyright Office’s new draft fails to codify the Supreme Court’s Betamax decision, which, despite having fostered twenty years of explosive growth in technology, is now under unrelenting attack. Moreover, the Betamax doctrine will provide no defense against the Copyright Office’s proposed new form of liability. Nor would it be availing to present any defense based on lack of knowledge, intent, or affiliation with any infringer. Thus, legitimate enterprises may have no effective means of preventing the substantial litigation cost of virtually every infringement case going to trial.

The Register:

Many independent labels are rumoured to be terrified by the proposal, our sources suggest, which could grant Microsoft the mandate on CD copy protection and, if it is accepted by the industry, potentially increase the costs of CD production.

Felten discusses markets and market failures in the context of DRM and the DMCA:

I’m happy to agree with Cox that the market, left to itself, would find a reasonable balance between the desires of media publishers and consumers. But the market hasn’t been left to itself. Congress passed the DMCA, which bans some products that let consumers exercise their rights to make noninfringing use (including fair use) of works.

The comments on Felten’s post are also interesting:

To have a market failure, you have to propose a situation where every one of those groups would be happier than under market conditions, but we can’t get there using just market mechanisms. It’s not enough to want to redistribute wealth from some groups to others, just because you like them better. That’s not market failure, that’s communism.

Copyright reform is not Marxist:

I suggest that copyright and patent reform - where commentators have actually been accused of Marxism - is not where the Marxist revolution is taking place. Instead I locate that revolution elsewhere, most notably in the rise of open source production and dissemination of cultural content.

Lessig:

Word now is that Bruce Lehman, former Assistant Secretary of Commerce, and Commissioner of Patents, is spreading the word that he is running IP policy on the Kerry campaign. In the scheme of extremists, few are more extreme.

Wired:

But while the copyright office – which released its recommendations publicly on Friday – clearly made a good-faith effort to address the concerns of the music and movie industries, technology companies and consumers, critics said the bill would take copyright law in a dangerous direction.

More DRM:

NDS, STMicroelectronics and Thomson said on Friday they will develop new encryption technology to foil video piracy, a $3.5 billion problem for broadcasters and movie studios.

They note that

Crafty programmers have discovered ways to crack into DVD players, for example, to make copies of Hollywood movies quickly and cheaply.

But they fail to mention the legitimate uses of cracking DVD encryption.

Via Engadget, a SiliconValley.com article saying that TiVo and ReplayTV have agreed to limit how long users can keep pay-per-view movies:

One control would limit recording to 90 minutes – essentially enough time for a viewer to watch an on-demand movie. Another would allow a movie to be stored for up to seven days but once the film was started it must be viewed within 24 hours. Another would allow unlimited viewing within a seven-day period.

Engadget refers to their Jack Valenti interview where he admits to using his own TiVo to record pay per view:

I have a TiVo set. I truly enjoy it. The movies I get on TiVo come from television, HBO or pay per view.

Lessig on the recent sampling decision:

Sampling, we’re told, is piracy. But be certain to see the 19 footnotes in this relatively brief opinion, or the 28 separate quotes the opinion includes from other peoples work. I assume the court got a license for those. […] So once again: life in the analog world is freer than life in the digital world. You can do it, just don’t use technology to do it — unless, of course, your lawyer has spoken to their lawyer.

From ZDNet:

The trouble with having thousands of software patents is that small organizations, whether software companies or in-house development shops, will find it increasingly difficult to write new code without infringing on patents. The argument that the new software was invented independently is no defense against a patent-infringement claim. Evading the problem may be possible through insurance, which is a direction pioneered by Open Source Risk Management. But the real solution is a fundamental rethink of the role of patents in a world of global corporations. We want creative individuals to be justly rewarded but a system that protects giant companies against competition is in few people’s interests.

From the Boston Globe:

The solution to the problem, though, is not to ban a new technology because it can be used to make illegal copies. Such logic would have left us in a world without VCRs, tape recorders, or photocopy machines. Such logic might even extend to computers themselves. After all, in a digital age, every time we surf the Internet, save a file to our hard drives, or share files on a network, we make copies. Copyright law is out of date.

Via the EFF, Disney loses a bid to dismiss a case accusing them of copyright violations:

“US entertainment giant Walt Disney today lost its court bid to set aside a lawsuit filed by a local Zulu family in South Africa for royalties from the hit song The Lion Sleeps Tonight. The family of the late Solomon Linda, who composed the original Zulu tune for the song, is claiming 10 million rand (about $2.17 million) in damages from Disney.”

Great paper by Mark Lemley:

The economics of property is concerned with internalizing negative externalities - harms that one person’s use of land does to another’s interest to it, as in the familiar tragedy of the commons. But the externalities in intellectual property are positive, not negative, and property theory offers little or no justification for internalizing positive externalities. Indeed, doing so is at odds with the logic and functioning of the market.

Cnet:

Altnet, a company that sells music and other digital goods through file-swapping services, sued the Recording Industry Association of America on Wednesday for alleged patent infringement. The company, a subsidiary of Brilliant Digital Entertainment, contends that the RIAA has been infringing on one of its patents in the course of copyright enforcement efforts inside peer-to-peer networks.

From Cnet:

Before going to market with a video-on-demand product, Netflix and TiVo would need the support of Hollywood movie studios, which hold the keys to all-important distribution licenses. Even if the studios are receptive to such a deal, cooperation won’t be forthcoming until TiVo can offer a viable content-security system to protect the downloadable films in transit from being pirated–an area where TiVo has clashed with Hollywood in the past.

Via Ernest, a Forrester study on the impact of Tivo on commercial viewing:

“Forrester’s survey respondents report watching only 8 percent of commercials in recorded programming. Three out of 10 viewers say they watch no commercials at all. Although the numbers paint a gloomy picture for advertisers, viewers do not treat all ads equally. Three out of four DVR users watch some ads at least occasionally. Movie ads and promos for upcoming programming fare best. Conversely, consumers watch less than one in 10 ads about credit cards, long-distance carriers, car dealers, and banks.”

Ernest Miller just posted a nice summary of the latest INDUCE-related happenings.

From Downhill Battle:

We’re organizing a call-in day to Congress on September 14 to oppose new legislation that would undermine the Betamax decision (INDUCE Act). Sign up on the right.

The Wall Street Journal talks about hacking hardware. Sounds cool except for the chilling effects of the DMCA:

Hackers sometimes play a cat-and-mouse game with hardware manufacturers riled by product modifications. Things got testy several years ago with Digital Convergence Corp., the now-defunct maker of the hand-held CueCat barcode scanner, which was given away free to consumers for plugging into their PCs. […] Digital Convergence’s lawyers sent cease-and-desist letters to people who posted Web sites with instructions on how to hack the machines, but the company ceased operating before the matter came to a head.

When threatened with cease and desist letters,

[H]ackers responded quickly to the threat of litigation, and the coding projects assumed a lower web profile. Michael Rothwell changed the name of his CueCat Decoder project to FooCat BarCode. “I figured the only thing I could possibly be infringing on is the name CueCat,” says Rothwell, who nevertheless eventually pulled the program off of his web site, flyingbuttmonkeys.com.

A federal appeals court has ruled that musicians must pay for every single sample:

“If you cannot pirate the whole sound recording, can you ‘lift’ or ’sample’ something less than the whole? Our answer to that question is in the negative. […] Get a license or do not sample. We do not see this as stifling creativity in any significant way.”

Public Enemy would disagree:

It wouldn’t be impossible [to make a record like It Takes A Nation Of Millions]. It would just be very, very costly. […] Now you’re looking at one song costing you more than half of what you would make on your album.

I suppose someone will soon be lobbying Congress to make Microsoft’s idea a crime:

Microsoft is using playlists from more than 900 local radio stations around the country to create its own soundalike Internet stations – stripped of local DJ chatter, traffic, weather and commercials.

Via Deep Links, Microsoft offers advice on how to circumvent copy protection, then changes their mind. At first:

The process that the MSN site outlines here is a widely accepted way of converting proprietary file formats – formats like Microsoft’s Windows Media, or Apple’s AAC – into the open MP3 format. In other words, Microsoft was informing its users of a way to circumvent the copy-protection scheme in its songs just so that the users could have a more flexible user experience – which is certainly very, very nice of them!

But later:

Now, instead of counseling users on how to have MSN’s songs play on their iPod, the site simply provides an e-mail address for people to complain to Apple.

Copyfighter reminds us that BMI is not the same as BMG, so BMI’s record year isn’t as interesting.

Netflix will download movies directly to your Tivo, according to Newsweek.

Hollywood will be watching closely to make sure copyright protections aren’t hacked, which could lead to its biggest nightmare: high-quality versions of its movies released freely onto the Internet. But it is the cable guys, with their own budding video-on-demand offerings, who will be in the hottest seat. Cable customers could prefer the larger Netflix selection and download movies to their TiVo boxes using cable’s own pipes.

Who needs DVDs anyway?

Arstechnica: "BMI, one of the largest music companies in the world which represents artists directly, has posted a record-breaking fiscal year. [...] Such results are confusing when we're told every month that piracy is destroying the industry, and artists are suffering."

From Cnet: "The U.S. Copyright Office has drafted a new version of the Induce Act that it believes will ban networks like Kazaa and Morpheus while not putting hardware such as portable hard drives and MP3 players on the wrong side of the law."