Happy Public Domain Day

Happy New Year from Pirate Party Australia! from piratepartyau on Vimeo.

I actually think this is wrong - please correct me if you think its right... the copyright extension that commenced in Australia on 1 January 2005 was not retroactive ... so works where the author died before 1 January 1955 and subject matter other than works such as film and sound recordings that were published before the authors death and before 1 January 1955 only had a +50 year term meaning as they had already entered the public domain they were uneffected by the copyright term extension. To me this means that nothing new enters the public domain this year in Australia. Copyright as usual is clear as mud but this is the best I can make of the information I have on hand at the moment - please let me know what you think in the comments. Check out the info from the Attorney General on the term extension here.

SOPA Cabana (by Dan Bull)

(There's always something good that happens when you're on holidays hey)

Off the Grid

Just a note to say thank you for reading my blog this year. I'm averaging around 500 page views a month and since blogger started counting page views there have been well over 7,000!! I cant thank you enough for making my little side project feel so worthwhile and I am honestly surprised that there is that level of interest in it. Wishing you, your family and friends a Merry Christmas and a Happy New Year... I am taking a few weeks off but will be back better than ever towards the middle/end of January.

thanks again and ho ho ho!
Sal

SOPA by businessinsurance.org

Via: Business Insurance Blog

RIP John Lennon

Digital Music News: Occupy: The Movement Finally Has a Soundtrack...

Digital Music News have an article stating that the Occupy Movement is about to get an album of protest songs written to support the protesters. No release date is given but it seems artists like Jackson Browne, Stephen Jenkins of Third Eye Blind, Crosby & Nash, Lucinda Williams, and Toots and the Maytals are all contributing tracks.

The article goes on to say that there is a distinct lack of political music about these days despite the interconnectivity of the internet - MY VERY POINT - nice to see someone else observing this as well.

Imbedded in the article is this track from Third Eye Blind, written about and in support of the Occupy Movement:




And here is a clip of Jackson Browne talking about the protest:




Further Reading
Digital Music News, Occupy: The Movement Finally Has a Soundtrack... (2 December 2011) < http://digitalmusicnews.com/permalink/2011/111201browne > at 8 December 2011

iiNet and other ISPs proposing Graduated Response in Australia

I nearly missed this - was trawling through some old emails this morning and found this article from the Australian Copyright Council from November. Apparently the Communications Alliance which represents some of the countries major ISPs including BigPond, Optus and iiNet, released a paper recently advocating for the introduction of a three strikes/graduated response program in Australia. It was released just before the High Court hearing of the latest appeal in the iiNet case and perhaps as a preemptive strike in the event that the court finds iiNet liable for authorising copyright infringement. The case has been heard but the decision is yet to be released.

The scheme proposed would include three 'educational' notices to be sent to suspected copyright infringers and on the final breach account holder details to be released on subpoena to enable copyright owners to enforce the law. The plan is intended to be trialed for 18 months at which point and evaluation will be undertaken to assess its effectiveness. It would only apply to consumer, residential, land line accounts and all costs would be borne by copyright holders. An independent audit of infringement detection technology would need to be completed prior to a copyright holder being permitted to join the program.

One curious part of the scheme is that the first 'education' notice is not to state the nature of the content that was infringed, nor is it to identify the ISP but rather be a generic notice simply noting the copyright owner as the rights holder. Only the second and subsequrnt notices will specify the content that has been infringed.

Account holder records will be wiped clean if no subsequent breaches are detected within a 12 month period. ISPs will not be required to issue more than 100 notices a month for the 18 month trial period of the scheme. It is further proposed that ISPs and Rights Holders will establish and jointly fund a Copyright Industry Panel. This is envisaged to be a small body with an independent Executive Director and members from the Rights Holder and ISP sector. Account holders will be given a 21 day grace period on each breach to challenge a notification through the industry panel.

The central objective is to change user behaviour and this would be a central area on inquiry in the evaluation to be completed at the end of the 18 month trial. They state:

.... it does appear (as has been forecast in numerous research studies) that the majority of online infringers do change their behaviour (i.e. stop infringing activities) upon receipt of one or more educational or warning notices – even, as is the case in Canada, those notices don‟t expressly refer to sanctions; e.g: In France, only 0.1% of users who receive a 1st notice will continue their activities and receive a 3rd notice; Canada – 11% of those who receive a 1st notice will continue their activities and receive a 3rd notice

I have written about the evils of such a scheme before and it is very disappointing to see Australian ISPs supporting its introduction.

Further Reading
Australian Copyright Council, ISPs propose new system to fight online piracy (29 November 2011) < http://www.copyright.org.au/news-and-policy/details/id/2020/ > at 8 December 2011

Communications Alliance Ltd, A Scheme to Address Online Copyright Infringement (November 2011) < http://commsalliance.com.au/__data/assets/pdf_file/0019/32293/Copyright-Industry-Scheme-Proposal-Final.pdf > at 8 December 2011

ArsTechnica, Aussie ISPs to trial notifying suspected infringers of suspected misdeeds (29 November 2011) < http://arstechnica.com/tech-policy/news/2011/11/aussie-isps-to-trial-notifying-suspected-infringers-of-suspected-misdeeds.ars > at 8 December 2011

The Colbert Report on SOPA

The Colbert Report
Get More: Colbert Report Full Episodes,Political Humor & Satire Blog,Video Archive

MEN WITH DAY JOBS - Denial Tango

Music and Politics by John Street

Just became aware of a new book out recently by John Street called 'Music and Politics'. It looks really interesting and is available from Amazon here. I have added it to my wish list for Santa this year.

From the back cover:
"It is common to hear talk of how music can inspire crowds, move individuals and mobilise movements. We know too of how governments can live in fear of its effects, censor its sounds and imprison its creators. At the same time, there are other governments that use music for propaganda or for torture. All of these examples speak to the idea of music’s political importance. But while we may share these assumptions about music’s power, we rarely stop to analyse what it is about organised sound - about notes and rhythms - that has the effects attributed to it.

This is the first book to examine systematically music’s political power. It shows how music has been at the heart of accounts of political order, at how musicians from Bono to Lily Allen have claimed to speak for peoples and political causes. It looks too at the emergence of music as an object of public policy, whether in the classroom or in the copyright courts, whether as focus of national pride or employment opportunities.

The book brings together a vast array of ideas about music’s political significance (from Aristotle to Rousseau, from Adorno to Deleuze) and new empirical data to tell a story of the extraordinary potency of music across time and space. At the heart of the book lies the argument that music and politics are inseparably linked, and that each animates the other."

Occupy Musicians

Digital Music News has a list of 298 musicians who support and will be playing at Occupy Events - it comes from a new website Occupy Musicians which has links to other web pages for Occupy Writers, Occupy Filmmakers and Occupy Comics.


Further Reading
Digital Music News, "We, the Undersigned Musicians and All Who Will Join Us, Support Occupy Wall Street..." (22 November 2011) < http://digitalmusicnews.com/permalink/2011/111121occupy > at 27 November 2011

Occupy Musicians < http://www.occupymusicians.com/ > at 27 November 2011

Introducing Google Music

Only available in the USA for now and without content from Warner.

Code Wars: 10 Years of P2P Software Litigation by Rebecca Giblin

Here is another book that I havent read yet but would very much like to, its called 'Code Wars: 10 Years of P2P Software Litigation'. It details the rise and fall of p2p networks and the race against time by the recording industry. In an article about this topic, the author examines four factors that led to the rise in file sharing and its increase in popularity despite the ongoing litigation against software developers. You can read that article here. You can also check out the website for the book here which has the first chapter on it for free and place orders for a copy at Amazon here. Dr Rebecca Giblin is a member of the Monash University Law Faculty in Melbourne, Australia.

Further Reading
itnews, How litigation only spurred on P2P file sharing (11 November 2011) <http://www.itnews.com.au/News/279763,how-litigation-only-spurred-on-p2p-file-sharing.aspx > at 13 November 2011

Breaking News

In breaking news it seems Universal has purchased EMI bringing the total number of major record labels down to three. Not sure how this is going to go from an anti trust point of view but latest reports suggest that EMI recordings have gone to Universal for $1.2 billion and EMI publishing has gone to Sony/ATV Music Publishing for $2.2 billion. Bands affected include The Beatles, Coldplay, Katy Perry, Pink Floyd, Beach Boys, and Norah Jones. I will update the list of references below as I read more articles on the take over.

Further Reading
Noise 11, Universal Music Buys EMI, Sony Gets EMI Publishing (12 November 2011) < http://www.noise11.com/news/universal-music-buys-emi-sony-gets-emi-publishing > at 13 November 2011

Digital Music News, Impala: The EMI Acquisition Will Be 'Blocked Outright'... (14 November 2011) < http://digitalmusicnews.com/permalink/2011/111111impala > at 16 November 2011

Digital Music News, SOLD: Citigroup Unloads Both EMI Units; $4.1 Billion... (11 November 2011) < http://digitalmusicnews.com/permalink/2011/111111umg > at 15 November 2011

TechDirt, And Then There Were Three: Bye, Bye EMI (11 November 2011) < http://www.techdirt.com/articles/20111111/10302916724/then-there-were-three-bye-bye-emi.shtml > at 15 November 2011

33 Revolutions per Minute: A History of Protest Songs, from Billie Holiday to Green Day by Dorian Lynskey

I havent read this book yet... hopefully Santa will bring it for Christmas... but it looks really interesting. Its called '33 Revolutions per Minute: A History of Protest Songs, from Billie Holiday to Green Day by Dorian Lynskey' it also has a supporting blog with posts about recent developments - you can read the blog here. You can also purchase the book from Amazon here. Might be worth checking out - let me know if you get your hands on it!

Protest songs for Occupy London

Just wanted to draw your attention to an event in London thats coming up. Its called 'Protest songs for Occupy London' and is taking place Wednesday, November 9 from 3:00pm - 5:00pm in front of St Paul's Cathedral, London. You can find the facebook public event page here.

Artists such as Peggy Seeger, Billy Bragg, Tony Benn, Roy Bailey, Chumbawamba, Steve Knightley and Leon Rosselson will come together to sing protest songs in support of Occupy London and the public are asked to come along and join in.

The facebook page (here) also has some links posted to it of YouTube clips of protest songs so if you are into that sort of thang check it out. Here is one of them for your viewing pleasure:

Did You Know?

A look at the impact of technology on our lives... excellent clip, take a look:

The Last Kinection - Are We There Yet (featuring Simone Stacey)

New Australian Indigenous political song by The Last Kinection on 'closing the gap' - a campaign to stop the early deaths of Indigenous people in Australia due to health standards. More information on the campaign is available from the Australian Human Rights Commission here.

Protect IP

Check out this great clip on the problems associated with the Protect IP legislation in the United States:

PROTECT IP Act Breaks The Internet from Fight for the Future on Vimeo.

ALRC Copyright Issues

News this week that the Australian Attorney General is in the process of drafting the terms for a review of copyright law by the Australian Law Reform Commission. The draft terms of reference are to be released soon.

High on the list of priorities should be a new exception for sampling. It would be fair and reasonable for Australian copyright law to introduce a 5 second sampling right to allow for new creations to be made from existing works, especially after the Larikin Music Publishing case in which the band Men at Work were held liable for copyright infringement of the song Kookaburra Sits in the Old Gum Tree. Australia has the opportunity to lead the world by encouraging this art form and I for one would be pleased to see this included in the draft terms of reference.

The Copyright Council Expert Group recently released a paper in which areas in need of reform were highlighted - you can read the paper here. They suggest that further consideration should be given to:

• Non-commercial transformative use of copyright works
• Internet intermediary liability
• Orphan works; and
• Registration of copyright works

As soon as the draft terms of reference are released I will blog with any further information.

Further Reading
Copyright Council Expert Group, Directions in Copyright Reform in Australia (October 2011) <http://www.copyright.org.au/pdf/Copyright%20Council%20Expert%20Group%20-%20Paper%202011.pdf > at 1 November 2011

ABC: The case for piracy

Great article from the ABC in Australia on piracy, check it out here.

"Nowadays, copyright barely resembles what it was originally designed for i.e. to protect both parties: inventors and content creators on the one side and the public on the other. Corporate America and government compliance have written out public interests in many instances."

Further Reading
ABC, The case for piracy (20 October 2011) < http://www.abc.net.au/technology/articles/2011/10/20/3344351.htm > at 26 October 2011

NPR - Two Great Articles on Protest Music

Just wanted to draw your attention to two great articles recently from NPR.

The first titled "Where Are They Now?: 7 Protest Songs With Legs" looks at the history of protest music and examines the use and reuse of seven songs - We Shall Overcome, We Shall Not Be Moved, Solidarity Forever, This Little Light of Mine, This Land Is Your Land, Which Side Are You On? and Ain't Gonna Let Nobody Turn Me Around. Well worth a read, the article has youtube clips for each song and discusses their relevance to protests over time.

The second article is titled "21st Century Protest Music: Will There Be Another Dylan? Should There Be?" and covers the Occupy Wall Street protest and the music that has been played and the artists that have participated. The article goes on to note that there has not been a stand out song or one particular artist that has dominated the rally and questions the role of music in this protest seeing it as an opportunity for a new 'Dylan'.

Further Reading
NPR, Where Are They Now?: 7 Protest Songs With Legs (14 October 2011) < http://www.npr.org/blogs/therecord/2011/10/14/141316750/where-are-they-now-7-protest-songs-with-legs?sc=fb&cc=fp > at 15 October 2011

NPR, 21st Century Protest Music: Will There Be Another Dylan? Should There Be? (8 October 2011) < http://www.npr.org/blogs/therecord/2011/10/09/141155461/21st-century-protest-music-will-there-be-another-dylan-should-there-be > at 15 October 2011

UPDATED: Aus AG calls for submissions on disclosing user identities

ZDNet and the Australian Pirate Party are reporting on a new proposal from the Australian Attorney General that would see a streamlined approach implemented for copyright owners to seek the disclosure of users identities for the purpose of copyright enforcement, most likely leading to a graduated response scheme.

Submissions are open until 22 November 2011 and I urge all readers to write in and oppose replacing the current system of court orders with basic judicial oversight in the disclosure of IP account holders details. The new system, which would replace the need to establish the probability of liability, will simply allow copyright holders to approach the court with the IP address of the user and a search report suggesting that they downloaded a file. Disclosure would be allowed on that basis.

It has been shown time and again that these investigation methods are flawed and in essence this proposal removes any need to establish actual infringement by removing the onus on the copyright holder to show probability. In the USA elderly citizens without file sharing software and even printers have been accused of copyright infringement with the investigation process being faulty.

The six page document, available here, suggests that the term 'carriage service provider' under the Telecommunications Act be expanded and that copyright Safe Harbours establish incentives for ISPs to co-operate with copyright holders.

This is a bad deal for the Australian public with need for court orders for the disclosure of private information being a basic human right. Write in now and show your opposition to the proposed changes. This is also a bad deal for ISPs who, despite having their costs met under the scheme, will be forced into the middle between copyright holders and users and be overwhelmed with the work of providing records to anyone who asks.

UPDATE: Apparently the AGs Department accidentally published a draft and the real document which has now been published does not call for a streamlined disclosure process... still worth a read and making a submission. You can find the updated document here.

Further Information
Australian Attorney General Department, Revising The Scope of the Copyright 'Safe Harbour Scheme; & the Process of seeking ISP Subscriber Details in Copyright Infringement Matters:Consultation Paper (October 2011) < http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/%28689F2CCBD6DC263C912FB74B15BE8285%29%7ERevising+the+scope.pdf/$file/Revising+the+scope.pdf > at 14 October 2011

ZDNet, Govt considers 'streamlined' piracy policy (14 October 2011) < http://www.zdnet.com.au/govt-considers-streamlined-piracy-policy-339324313.htm > at 14 October 2011

Delimiter, Govt redacts ISP anti-piracy consultation text (17 October 2011) < http://delimiter.com.au/2011/10/17/govt-redacts-isp-anti-piracy-consultation-text/> at 18 October 2011

Attorney Generals Department, Revising the Scope of the Copyright Safe Harbour Scheme (October 2011) < http://www.ag.gov.au/www/agd/agd.nsf/Page/Consultationsreformsandreviews_RevisingtheScopeoftheCopyrightSafeHarbourSchemetheProcessofSeekingISPSubscriberDetailsinCopyrightInfringementMatters > at 18 October 2011

My Blackberry Is Not Working! - The One Ronnie, Preview - BBC One

Music with a Message

Just a heads up that I am back on air - 92.9 River FM on Mondays from 3-4pm playing political music. Tune in if you around Northern NSW - unfortunately it is not available on the web.

Where has protest music gone?

Here is an awesome BBC radio show on the power and presence of political music. World Have Your Say: Live from the Rock and Roll Hall of Fame, Cleveland was broadcast on 11 October 2011. Artists interviewed include Billy Bragg. The discussion covers what is political music, its history throughout the 1960s and 1970s and the place for political music today and its purpose. Of particular interest to me is the discussion about how protest music is not supported by the major record labels and the difficulties it has making it into the mainstream.

Further Information
BBC, World Have Your Say: Live from the Rock and Roll Hall of Fame, Cleveland (11 October 2011) < http://www.bbc.co.uk/programmes/p00kkthp > at 12 October 2011

ACTA and Larrikin

Two important developments in Australian Copyright issues this week with the signing of ACTA and a High Court determination with respect to the Larrikin Music Publishing case.

The ACTA agreement was signed in Japan this week - Australia, the USA, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea all signed on. The agreement does not, as originally intended, force countries to introduce a three strikes or graduated response scheme. It does however ensure that circumvention devices are illegal and further reinforces seizure and forfeiture laws with respect to counterfeit and pirated works and requires open ended damages awards for copyright infringement.There is not likely much change in the law required in Australia so the signing of the agreement is not that much of a problem - the agreement was significantly worse in its original form and has undergone significant changes over the three years it has been negotiated.

In other news the High Court of Australia has refused to hear an appeal in the Larrikin Music Publishing case leaving the Full Court of the Federal Court ruling in place that Men at Work infringed the copyright in the Kookaburra song. This is a disappointing outcome with the case a perfect example as to why fair dealing is a narrow and inflexible approach to sampling. I have previously written about the case here.

Further Reading
ArsTechnica, US signs ACTA (6 October 2011) < http://arstechnica.com/tech-policy/news/2011/10/us-signs-international-anti-piracy-accord.ars > at 11 October 2011

TechDirt, As Countries Sign ACTA, Many Finally Admit Their Copyright Laws Will Need To Change (3 October 2011) < http://www.techdirt.com/articles/20111002/22262616174/as-countries-sign-acta-many-finally-admit-their-copyright-laws-will-need-to-change.shtml > at 11 October 2011

TechDirt, Insanity: Men At Work Lose Final Appeal For Using Brief Riff Of Classic Folks Song, Which Went Unnoticed For Decades (7 October 2011) < http://www.techdirt.com/articles/20111007/14211416254/insanity-men-work-lose-final-appeal-using-brief-riff-classic-folks-song-which-went-unnoticed-decades.shtml > at 11 October 2011

Broadband Penetration vs Album Sales

Check out this animated graph from Digital Music News illustrating the increase in broadband uptake and the corresponding drop in album sales for the music industry over the last decade:

Digital Music News, Broadband Penetration vs Album Sales (2 October 2011)
< http://www.digitalmusicnews.com/stories/100211broadband > at 11 October 2011

Spotify and Facebook

There have been some major changes announced recently with the integration of music with facebook. With the recent launch of spotify in the USA I am particularly interested in the merger between it and facebook.

It was reported this week that spotify account holders are now required to have a facebook account. This seems like an odd requirement and one that could backfire with some people not wishing to use facebook at all. This seems to be a cross promotional arrangement and is likely to improve integration with the two services with one login password able to activate both.

Recent changes to facebook include the live reporting of user activity and the ability to share music with friends through facebook. Interestingly enough spotify users will be able to restrict the reporting of their listening habits through the settings in spotify - there has been no indication that such reporting restrictions are possible through the new facebook interface. Nor has there been reports that other music services to be integrated with facebook will have the same ability to restrict the sharing of listening activity. Indeed it has been reported that facebook are using cookies to track users activities even after they have logged out of the service.

There have been some negative developments for Spotify however with three independent labels withdrawing their catalogues from the service citing a lack of financial viability as the reason. Spotify suggest that this was an error on the labels part and were quick to point out that copyright holders are not paid for each time the music is streamed but rather are paid for allowing access to the music. This does seem counterproductive for labels that are most likely to need the exposure to new audiences to create momentum for independent artists. Two million paying subscribers are a large potential audience and this could be the case of shooting oneself in the foot.

Having said that, recent reports suggest that independent acts do make very little out of spotify. European band Uniform Motion suggest they get 0.003 EUR/play. If you listen to the album all the way through, they get 0.029 EUR. If you listen to the album 10 times on Spotify, they get 0.29 EUR. If you listen to it a hundred times, they get 2.94 EUR and if you listen to the album 1,000 times (once a day for 3 years!)they get 29.47 EUR! This does seem like a hard way to make money and at a fraction of the rate of downloads from iTunes for example.

Further Reading
Digital Music News, It Gets Worse: Spotify Now Requiring New Users to Have Facebook Accounts... (27 September 2011) < http://www.digitalmusicnews.com/stories/092611marriage > at 3 October 2011

TechDirt, Labels Dropping Out Of Spotify Are Totally Missing The Point (23 September 2011) < http://www.techdirt.com/articles/20110922/11224716052/labels-dropping-out-spotify-are-totally-missing-point.shtml > at 26 September 2011

Digital Music News, The Facebook Effect: It's Time to Rethink How Music Works... (23 September 2011) < http://digitalmusicnews.com/stories/092211facebookmusic > at 26 September 2011

Digital Music News, Facebook's Extreme Makeover: It's Happening, Already... (22 September 2011) < http://www.digitalmusicnews.com/stories/092111facebook > at 26 September 2011

Digital Music News, Spotify Now Surpassing 2 Million Paying Subscribers... (22 September 2011) < http://www.digitalmusicnews.com/stories/092111spotify > at 26 September 2011

Digital Music News, Then, This: Another Indie Pulls Out of Spotify... (20 September 2011) <http://www.digitalmusicnews.com/stories/091911spotify > at 26 September 2011

Digital Music News, Spotify Defends Its Payout Structure... (20 September 2011) <http://www.digitalmusicnews.com/stories/091911spotifydefends > at 26 September 2011

TechDirt, How Much Does A Band Make From Various Music Platforms? (12 September 2011) < http://www.techdirt.com/blog/casestudies/articles/20110911/00284415891/how-much-does-band-make-various-music-platforms.shtml > at 19 September 2011

Digital Music News, What an Artist Really Gets Paid, Continued... (14 September 2011) <http://digitalmusicnews.com/stories/091311artistmakes > at 19 September 2011

Digital Music News, Facebook Admits to Tracking Logged-Out Users... (28 September 2011) < http://digitalmusicnews.com/stories/092711facebook > at 3 October 2011

Pirate Party Australia Annual Congress 2011.

The Australian Pirate Party are holding their second annual conference titled Activism in the Digital Age on October 29/30 at the Paragon Hotel Circular Quay, Sydney.

The first day is dedicated to political discussions, workshops and a public meeting. They will be discussing the rise of activism online and the parties approach to digital politics. On the second day policies and changes to the constitution will be discussed.

Further information will be released closer to the conference date and can be found here.

The United Nations' International Day of Peace

Bliss n Eso feat: John Butler Trio - "The Sea is Rising" - Peace One Day Video

IP Maps

Check out these IP Maps by Terry Fisher from Harvard:

http://cyber.law.harvard.edu/people/tfisher/IP/IP%20Maps.htm

Song of the Moment: Work of Art

Global cooperation, empowerment, self-acceptance, celebration of diversity, tolerance, and love. Work of Art was written by a global team and is sung in 19 languages by Haikaa.

The Public Domain: Enclosing the Commons of the Mind

I have been catching up on more reading this week - James Boyle's 'The Public Domain: Enclosing the Commons of the Mind' has been sitting in my reading tray for about 3 years and I was delighted to have an opportunity this week to take a look at it.

The central point of the book is that 'the line between intellectual property and the public domain is important in every aspect of culture, science and technology.' [pg xvi] Boyle begins by discussing the inherent aspects of intellectual property - that it is nonrival and nonexcludable and notes that financial reward is just one of the motivations behind creation - others are fame, altruism or because of another inherent creative force. [pg 3] Without limiting intellectual property rights, it becomes a system of corporate welfare. [pg 8] He writes:

'...the goal of the system ought to be to give the monopoly only for as long as necessary to provide incentive. After that, we should let the work fall into the public domain where all of us can use it, transform it, adapt it, build on it, republish it as we wish. For most works, the owners expect to make all the money the are going to recoup from the work with five or ten years of exclusive rights' [pg 11]

He discusses changes to copyright in recent years including automatic protection and term extension and notes that these have changed the contours of copyright regulation in a bad way. [pg 15].

Boyle terms the phrase 'The Jefferson Warning' to refer to the discussion of intellectual property at the time of its inception and the reluctance of the forefathers in granting monopoly rights. In essence intellectual property was not seen as a natural right rather a mechanism to create incentives, there is no entitlement as such to monopoly rights rather they are created by the State as a means to an end, they should not be permanent but rather only last as long as is needed to provide the incentive they set out to achieve, there are inherent dangers associated with intellectual property rights as they may cause more problems than they solve and the State must be careful to only award them when they are really needed. [pg 21-22] These sentiments were echoed by Thomas Babington Macaulay in his speech to the House of Commons in 1841:

'I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad.' [pg 22]

Reiterated by Boyle later in the text, he rephrases this to say that the concerns of the forefathers were that intellectual property creates artificial scarcity, high prices and low quality. [pg 37]

Boyle goes on to define the public domain and the commons:

'The public domain is material that is not covered by intellectual property rights. Material might be in the public domain because it was never capable of being owned. Examples would be the English language or the formulae of Newtonian physics. Alternatively, something might be in the public domain because rights have expired. The works of Shakespeare or the patents over powered flight are examples.
Some definitions of the public domain are more granular. They focus not only on complete works but on the reserved spaces of freedom inside intellectual property. The public domain would include the privilege to excerpt short quotations in a review. This vision is messier, but more instructive....' [pg 38]

'The term "commons" is generally used to denote a resource over which some group has access and use rights - albeit perhaps under certain conditions. It is used in even more ways that the term "public domain". The first axis along which definitions of the term "commons" vary is the size of the group that has access rights. Some would say it is a commons only if the whole society has access. That is the view I will take here.
The other difference between public domain and commons is the extent of restrictions on use. Material in the public domain is free of property rights. You may do with it what you wish. A commons can be restrictive. For example, some open source software makes your freedom to modify the software contingent on the conditions that your contributions, too, will be freely open to others.' [pg 39]

Boyle sees the public domain as important because it is the basis of art, science and self understanding. It is the raw material from which new things are made. [pg 39] He states that the more commodified and restricted our access to information, the less the market operates efficiently and more poorly it allocates resources in society. Creativity is undermined as the cost of the inputs rise. [pg 40]

Boyle then goes on to discuss the enclosure of land commons in England before referring to the increase in intellectual property rights as the second enclosure. [pg 43 -45] Here Hardin's tragedy of the commons does not apply as works are non rivalrous and nonexcludable. [pg 48] Indeed the increase in property rights creates a different problem:

'Using a nice inversion of the idea of the tragedy of the commons, Heller and Eisenberg referred to these effects - the transaction costs caused by myriad property rights over the necessary components of some subsequent innovation - as the tragedy of the anti commons'.

Boyle then goes on to term the phrase 'The Internet Threat' to refer to the digital environment and perceptions that technological changes empowering copying must mean an increase in property rights. [pg 53] In particular he refers to Napster and the changes that were brought about by file sharing. [pg 53] The logic of perfect control is discussed in detail in Chapter 4. [pg 61] The background to the Napster and Grokster litigation is also discussed. [see pg 71 - 79]

Chapter 6 discusses mashups in detail. In an earlier post here I embedded the YouTube clip to The Legendary KO's song 'George Bush Doesnt Care About Black People'. This is a fascinating chapter which traces the origins of that mashup and discusses the copyright implications for its reuse over time - this is a great example for anyone interested in the origins of mashups and the law around them. [pg 122] In discussing changes that need to be made to the law to allow for mashups Boyle states that one solution is to extend the system of compulsory licenses for cover versions to samples, or in the alternative, to exempt samples shorter than 5 seconds from copyright liability and clarify fair use. [pg 158-159]

Chapter 7 concerns the science commons with particular examples of software patents and synthetic biology. [pg 160]

Chapter 8 focuses on the creative commons and looks at flickr, ccmixter and creative commons [pg 179-181]. Boyle states that losses of sharing are every bit as real as losses from unauthorised copying. [pg 182] Further discussion on this topic looks to the free software movement and how creation of software takes place on a large scale despite a lower level of intellectual property rights. [pg 185]

In Boyle's eyes copyright maximalism was believed and pursued even when it did not make economic sense. [pg 198] It was a creation of a world view not a calculation of profit and loss:

'Not only did many of the rules we ended up with make no sense from the point of view of some of the largest economic players in the area - think of the device manufacturers, the search engines, and so on - they frequently made no sense from the perspective of those proposing them. Attempting to twist the law to make it illegal for technology to interfere with your business model is frequently bad for the industry seeking the protection, as well as for the technology, the markets, and the wider society.' [pg 199]

It was however a sincere belief that more rights would lead to more innovation. [pg 199]

Boyle is particularly critical of the lack of empirical evidence used to support changes in the law with a look at the legal protection for databases in the USA compared to Europe as one example. [pg 205 - 220]

Finally, Boyle proposes a movement along the lines of the environmental movement to lobby for changes to intellectual property law. [pg 230]

An excellent summary of the main points of the book is given on pages 205 & 236.

This is a brilliant book and very easy to read I really do recommend taking the time to look at it.

Further Reading
James Boyle, 'The Public Domain: Enclosing the Commons of the Mind' (2008) available for free at: < http://www.thepublicdomain.org/download/> at 13 September 2011

Thinking of 9/11

Wicked Website: Great Protest Songs

Just came across a great website, which I think is fairly new, called Great Protest Songs. Written by a father and son team, the site covers protest songs, peace songs, freedom songs, anti war songs and political songs with links to YouTube clips and a blog. They also have a facebook page. Check it out here - its great!

Further Information
Great Protest Songs < http://www.greatprotestsongs.com/ > at 12 September 2011

FMC Artist Revenue Streams Survey Launch

The Future of Music Coalition are conducting a survey on revenue streams for USA musicians - take the time to participate if this applies to you.

They write:

FMC urges US-based musicians and composers who are 18 years of age or older to participate in this online survey. Your participation is both voluntary and anonymous. There are no questions that identify you as an individual, and your data will be aggregated with thousands of other musicians.

By participating in this survey, you are contributing to something much bigger than simply providing us with some information about your life and musical work; the results will provide a rich snapshot of the complex nature of being a musician in the 21st century.

We will be sharing the data with organizations, advocates and musicians nationwide in 2012, and it will help us to ensure that policymakers and consumers understand the financial realities of musicians today.

You can take the survey by visiting FMC here.

Copyright Criminals

I havent yet been able to see the movie Copyright Criminals but have come across four short extracts of the film on the PBS classroom materials website. Check them out here.

George Bush Doesnt Like Black People

Reading the book by James Boyle 'The Public Domain: Enclosing the Commons of the Mind' - more about that in a post soon (havent finished it yet) but for now take a look at this clip:




Boyle writes a chapter on mashups and focuses on this song and the rights associated with the original(s). I'll tell you more about it soon, for now just know this is a great political mashup.

The Pirate's Dilemma

I finally got around to reading the book 'The Pirate's Dilemma: How Youth Culture is Reinventing Capitalism' this week - you can find the book here. It is available for free as well as on Amazon and is well worth the read even if it has dated a little now.

An interesting link is made between piracy and Punk Capitalism:

'D.I.Y encourages us to reject authority and hierarchy, advocating that we can and should produce as much as we consume. Since punk, this idea has been quietly changing the very fabric of our economic system, replacing outdated ideas with the twenty-first-century upgrades of Punk Capitalism' [pg 12]

The Do It Yourself mentality has become a way of life for many in the digital age:

'Our world today is starting to look a lot more like a punk gig (okay, maybe with slightly less spitting). The barriers to entry are being kicked down, and this new breed of fans-turned-performers, including you, is rushing the world stage. Technology is cheap; information is everywhere; and the roadies are gone (who takes advice from roadies anyway?). The only thing left to do is to stop defining ourselves by the old hierarchy and run up on stage.' [pg 18]

Indeed there is no longer such a thing as 'owning the means of production':

'It seems that ownership of the means of production - the backbone of capitalism - is falling into the hands of the masses. But soon the notion of "owning" the means of production may itself be redundant.' [pg 28]

Piracy is seen largely as a good thing:

'Pirates create positive social and economic changes, and understanding piracy today is more important than ever, because now that we all can copy and broadcast whatever we want; we can all become pirates' [pg 35] '...Piracy transforms the markets it operates in, changing the way distribution works and forcing companies to be more competitive and innovative. Pirates don't just defend the public domain from corporate control; they also force big business and government to deliver what we want, when we want it. [pg 38]

File sharing is just one example of piracy in the digital age:

'The Internet community that believes file-sharing networks are vitally important to culture and innovation have never stopped opening new p2p networks as fast as the authorities try to close them down. A good idea is powerful only if people are willing to get behind it. By giving a community a new space that was not previously available to them, you can empower them, and they in turn will propel your idea forward.
In the case of piracy we have looked at so far, there are two ways in which they win. Either the laws prohibiting them change, or the pirates become so popular the laws are effectively ignored. But the pirate mentality has now been taken on by many who weren't breaking the law in the first place.' [pg 48]

There is an excellent discussion of remix culture and the history of hip hop among other issues such as patents, medicine, youth culture, graffiti culture, pirate radio, the open source software movement, Wikipedia, the history of dance parties, and the future of 3D printing.

In relation to music in particular, Mason states:

'Music, one of our most previous forms of information, has always wanted to be free, spreading across the globe and mutating into new forms' [pg 146]

Napster and the history and motivation behind file sharing is discussed in detail from pages 154 to 161. Reference is made to the exploitation of musicians by record labels, with particular reference to a study conducted by the Pew Internet & American Life Project:

'A study by the Pew Internet & American Life Project asked three thousand musicians and songwriters their views on file-sharing in April 2004. A total of 35 percent of those polled said that file sharing was not necessarily bad, because it helped market and distribute their work; 35 percent said file sharing had actually boosted their reputations. Only 23 percent of those asked agreed that file sharing was harmful; 83 percent said they had deliberately put free samples of their music online.' [pg 156]

The slow and painful death of the record industry was caused in part by their response to file sharing with Mason concluding:

'The death of the record industry was the best thing that could have happened to the business of making music.' [pg 158]

Blanket licensing is discussed with reference to Peter Jenner, the former manager of the Clash and Pink Floyd. [pg 160]

The changes in the music industry have been monumental over the past decade:

'The music industry is being replaced by a new middle class, but this isn't just a class of musicians, it's also a new democracy that offers businesses and citizens more opportunities, which is redefining our economic system.' [pg 166]

The Pirate's Dilemma is, ultimately, whether to compete with piracy or to try to stop it:

'The new democracy in the music industry gave us more choice, but for the old industry machine it means less dominance for marketing-led manufactured music and more opportunity for organically grown niche acts. We find ourselves with a unique opportunity to share anything that can be transmitted electronically the same way we share music, and all industries could face the same changes. The future depends on whether we fight these changes, or see them for the opportunities they are.' [pg 170]

Mason discusses game theory based on what is known as 'The Prisoner's Dilemma' and sketches out the consequences for society and businesses if they elect to compete or to quash piracy. Society gains maximum value when businesses compete with piracy. [pg 239] He states:

'Piracy isn't just another business model, it's one of the greatest business models we have.
Acting like a pirate-taking value from the market, or creating new spaces outside the market and giving it back to the community, whether it's with free open-source software or selling cheap Starbury sneakers-is a great way to serve public interests and a great way to make an authentic connection to a new audience.' [pg 240]

This is a great book, albeit a little short on referencing, but worth taking a look at. It is well written and easy to read and covers a whole range of subjects that are very interesting.

Further Reading
Matt Mason, 'The Pirate's Dilemma: How Youth Culture is Reinventing Capitalism' (2008) < http://thepiratesdilemma.com/download-the-book > at 1 September 2011

Mimi & Eunice

Available here.

Graduated Response in Australia?

News today that the Australian Attorney General's Department has arranged a meeting for next month between the content industry and ISPs to discuss potential changes to the Copyright Act to increase the regulation of online piracy. This is likely to include a discussion on the need for a graduated response scheme to be introduced either through cooperation with ISPs or through legislation. So far it seems that Telstra are the only confirmed attendees but others invited include the Australian Content Industry Group, AFACT, Digital Entertainment Alliance Australia. Optus, the Internet Industry Association and the Communications Alliance. There is no one representing consumers interests.

I urge all readers to contact the Attorney General's Department and insist that some one, perhaps Electronic Frontiers Australia, be invited to attend on behalf of internet users. You can contact the Attorney General's Department by emailing attorney@ag.gov.au.

Further Reading
The Australian, A-G in call for talks on online piracy (24 August 2011) < http://www.theaustralian.com.au/australian-it/a-g-in-call-for-talks-on-online-piracy/story-e6frgakx-1226120005661 > at 24 August 2011

Torrent Freak, Australia Steps Closer To 3-Strikes for Pirates (22 August 2011) <http://torrentfreak.com/australia-steps-closer-to-3-strikes-110822/> at 24 August 2011

TechDirt, Australian Government Considering Three Strikes; Consumers Not Considered Stakeholders (23 August 2011) < http://www.techdirt.com/articles/20110823/00124415627/australian-government-considering-three-strikes-consumers-not-considered-stakeholders.shtml > at 24 August 2011

MP3 Tunes & The Future of Cloud Music

The long awaited decision in the MP3 Tunes case has just been handed down with what looks to be a positive ruling for music locker services. The case concerned the failure to remove infringing files from users lockers once notified by EMI that they were being used illegally. While the decision ultimately saw the site and its operator, Michael Robertson, liable for copyright infringement, the judge has given a green light to the continued operation of the service, signalling a positive basis for the introduction of Amazon and Google's new services - without licences from the recording industry.

The court held that MP3 Tunes could not have reasonably known that illegal files were being stored on its service and without notification from rights holders, was under no obligation to conduct a search or investigation to establish the legitimacy of the songs. Furthermore, the court held that any increase in traffic or usage due to the availability of the music locker, was not of itself proof that inducement or authorisation of copyright infringement had taken place.

MP3 Tunes only lost its DMCA safe harbour protection when it failed to remove files that it had been advised by rights holders were illegal - it disabled access to them by removing them from the search mechanism but did not take the added step of removing the files altogether. Robertson was held liable for direct infringement after it was established that he had used the company's app 'sideload.com' to bring illegal files into his personal locker space.

Further Reading
TechDirt, MP3Tunes Ruling Protects DMCA Safe Harbors (22 August 2011) < http://www.techdirt.com/articles/20110822/17284715623/mp3tunes-ruling-protects-dmca-safe-harbors.shtml > at 23 August 2011

ArsTechnica, Record labels get hollow victory in MP3tunes infringement case (22 August 2011) < http://arstechnica.com/tech-policy/news/2011/08/record-labels-get-hollow-victory-in-mp3tunes-infringement-case.ars > at 23 August 2011

Mimi & Eunice

Available here.

30 Years Of Music Industry Change, In 30 Seconds Or Less...

Great animated pie chart from Digital Music News showing changing revenue sources for the US music industry over the last 30 years... check it out!

Further Information
Digital Music News, 30 Years Of Music Industry Change, In 30 Seconds Or Less... (16 August 2011) < http://www.digitalmusicnews.com/stories/081611thirty > at 18 August 2011

How Musicians Can Use Creative Commons

A great read for the independent muso.

Further Information
The DIY Musician, How Musicians Can Use Creative Commons (12 August 2011) <http://diymusician.cdbaby.com/2011/08/how-musicians-can-use-creative-commons/> at 17 August 2011

Musicians & The Cloud

Future of Music Coalition Deputy Director Casey Rae-Hunter and TuneCore Founder/CEO Jeff Price:

Facebook Guide to Building Band Pages

Here is a great link from Digital Music News, it contains the facebook guide to building a band page. Since the advent of social networking, bands have been able to communicate directly with fans, I myself have 'liked' quite a few bands and love hearing about their adventures with lots of photos and dates for gigs. Those looking to embrace social media should start with this guide as it contains a lot of great tips for maximising band exposure and followers.

Further Information
Digital Music News, Facebook's Complete Guide to Building a Band Page... (3 August 2011) < http://www.digitalmusicnews.com/stories/080311facebook > at 16 August 2011

iiNet goes to the High Court

News recently that the High Court in Australia has given leave to appeal the iiNet case. This case concerns the liability of ISPs in this country for copyright infringement. The case turns on whether the ISPs authorised the illegal file sharing by failing to disconnect users that engaged in such activity.

Further Information
Australian Copyright Council, High Court to hear appeal in iiNet case (12 August 2011) < http://www.copyright.org.au/news-and-policy/details/id/1992 > at 16 August 2011

AFACT, IINET CASE: FILM STUDIOS SEEK LEAVE TO APPEAL TO THE HIGH COURT (24 March 2011) < http://afact.org.au/pressreleases/2011/24-3-2011.html > at 16 August 2011

Eskimo Joe - Why Music Matters Au/Nz

Why Music Matters Australia/New Zealand have launched their first animations today - they are starting out with five as part of their anti piracy education campaign. You can check out the clip from Eskimo Joe here:

Mimi and Eunice

Available here.

Bliss n Eso

Here is a great political song from Bliss n Eso, one of the few releases in recent years to address global warming. I love this group and this is a great clip well worth checking out.

Mimi and Eunice

Available here.

File Sharing Update

There has been some news in the Jamie Thomas case - she has again been found liable for $54,000 in damages for sharing 24 songs - the amount awarded by the jury was again reduced to $2,250 per song by the Judge in the case who made references to the excessive jury award as being unconstitutional. The damages set by Judge Davis are three times the statutory minimum for copyright infringement. The RIAA has already condemned the decision and stated that they intend to appeal, Thomas who disagrees with the finding that she was guilty of copyright infringement in the first place, plans to cross appeal.

In other news, independent labels have commenced legal action against Limewire seeking $5 million in damages for secondary copyright infringement.

Further Reading
ArsTechnica, Judge calls $1.5M file-sharing judgment "appalling," slashes to $54,000 (22 July 2011) < http://arstechnica.com/tech-policy/news/2011/07/judge-calls-15m-file-sharing-judgment-appalling-slashes-to-54000.ars > at 25 July 2011

TechDirt, Judge Decreases Amount Jammie Thomas Owes For File Sharing Again (Yes, Again); Says It's Appalling (22 July 2011) < http://www.techdirt.com/articles/20110722/11552515212/judge-decreases-amount-jammie-thomas-owes-file-sharing-again-yes-again-says-its-appalling.shtml > at 25 July 2011

TechDirt, Indie Records Sue Limewire; Feeling Left Out From RIAA Settlement (18 July 2011) < http://www.techdirt.com/articles/20110716/01570115119/indie-records-sue-limewire-feeling-left-out-riaa-settlement.shtml > at 25 July 2011

Digital Music News, Depressing: Indies Suing Limewire for $5 Million... (18 July 2011) < http://www.digitalmusicnews.com/stories/071511limewire > at 25 July 2011

PROTECT IP

I have been following the developments with respect to the American PROTECT IP Act but I was not sure whether to post on it yet seeing as so much of their legislative attempts never get off the ground. For an excellent outline of the Act you can see the fact sheet released by the Future of Music Coalition here. As you can see from this summary the Bill expands the powers of the content industry to obtain court orders to have websites removed from the internet on the basis that they are facilitating the theft of intellectual property. This would also result in credit card providers being prevented from providing services to these sites as well as search engines being required to remove such sites from their services. Credit card providers are also encouraged to take action themselves with a safe harbour provided preventing them from being liable for damages if they decide not to provide services to certain websites provided they have acted in 'good faith based on credible evidence'.

FMC go on to note that "the proposed legislation’s new enforcement tools may cause more harm than good" referring to potential mistakes as being an impediment to free speech. Website owners only have a right of reply once the site has been taken down. This has led to numerous claims that the Bill is unconstitutional and should not be pursued further. Furthermore it has been asserted that it could harm innovation with a number of venture capitalists speaking out about the unintended consequences of the Act. Google has suggested that it might be willing to take the legislation to court if it is unfair and unreasonable.

The content industry say that it is necessary to protect musicians and record labels but laws are already in place and sites are already being taken down, this is an expansion of what already occurs.

Further Information
Future of Music Coalition, PROTECT-IP Fact Sheet (27 June 2011) < http://futureofmusic.org/article/fact-sheet/protect-ip-fact-sheet > at 25 July 2011

ArsTechnica, Dozens of law professors: PROTECT IP Act is unconstitutional (6 July 2011) < http://arstechnica.com/tech-policy/news/2011/07/dozens-of-law-professors-protect-ip-act-is-unconstitutional.ars > at 11 July 2011

ZeroPaid, Law Professors Line Up to Oppose the PROTECT IP Act (5 July 2011) < http://www.zeropaid.com/news/94131/law-professors-line-up-to-oppose-the-protect-ip-act/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 11 July 2011

TechDirt, Top VCs Tell Congress: PROTECT IP Will Harm Innovation (23 June 2011) < http://www.techdirt.com/articles/20110623/11401714827/top-vcs-tell-congress-protect-ip-will-harm-innovation.shtml > at 27 June 2011

ArsTechnica, High tech investors slam Hollywood, blast Internet censorship bill (26 June 2011) < http://arstechnica.com/tech-policy/news/2011/06/high-tech-investors-blast-internet-censorship-billhigh-tech-investors-slam-hollywood-blast-internet-censorship-bill.ars > at 27 June 2011

ArsTechnica, High tech investors slam Hollywood, blast Internet censorship bill (26 June 2011) < http://arstechnica.com/tech-policy/news/2011/06/high-tech-investors-blast-internet-censorship-billhigh-tech-investors-slam-hollywood-blast-internet-censorship-bill.ars > at 27 June 2011

ZeroPaid, Feds Conduct 4th Round of Domain Seizures (23 May 2011) < http://www.zeropaid.com/news/93515/feds-conduct-4th-round-of-domain-seizures/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 26 May 2011

ArsTechnica, Big Content rips into Google, the "corporate imperialist" (19 May 2011) < http://arstechnica.com/tech-policy/news/2011/05/big-content-rips-into-google-the-corporate-imperialist.ars > at 23 May 2011

TechDirt, Being Concerned With Free Speech Implications Of PROTECT IP Does Not Mean You Think You're Above The Law (20 May 2011) < http://www.techdirt.com/articles/20110520/13252214358/being-concerned-with-free-speech-implications-protect-ip-does-not-mean-you-think-youre-above-law.shtml > at 23 May 2011

ArsTechnica, Senate bill gives feds power to order piracy site blacklisting (12 May 2011) < http://arstechnica.com/tech-policy/news/2011/05/senate-bill-gives-feds-power-to-order-piracy-site-blacklisting.ars > at 14 May 2011

News of the World Protest Songs

There has been a couple of protest songs sung with respect to the News of the World phone hacking scandal. Here Billy Bragg sings Never Buy the Sun which I believe is a song from the 1980s that has been reused with respect to these events:






There is also a song called Mr Murdoch's Song by John Dengate - you can find the lyrics here.

Future of Music Coalition Summit 2011

The fabulous Future of Music Coalition Policy Summit is back for 2011 being held at Georgetown University from October 3 - 4, 2011. They write:

The music industry sometimes seems to be stuck on pause. But musicians aren’t waiting around for the future to come to them; they’re actively constructing it. To make the most of opportunities and avoid obstacles, musicians require the right tools and the right partners. The 2011 Future of Music Policy Summit will examine the issues that matter most to today musicians, songwriters and composers — from the hyper-local to the truly global. What do artists require to make an impact in a content-rich, capital-challenged environment? How does policy impact musicians’ ability to thrive, not just today, but tomorrow? Is the industry finally ready to play nice with technology? Would bold changes to traditional music business models be the rising tide to lift all boats? Can all stakeholders work constructively towards a music marketplace that rewards both artists and fans? The 2011 Future of Music Policy Summit puts the focus squarely on musicians and their real-world perspectives to address these questions and more. Check your assumptions at the door, and join us in fast-forwarding to the future of music.

Further Information
Future of Music Coalition, Policy Summit 2011 (July 2011) < http://futureofmusic.org/events/future-music-policy-summit-2011 > at 25 July 2011

Mimi and Eunice

Available here.

Copyright Alerts aka Graduated Response USA

I have been waiting for the dust to settle on the recently announced graduated response program for the United States so that I might bring you accurate information. Of course its not called a graduated response program, rather a Copyright Alerts scheme.

In essence this voluntary agreement sees ISPs begin to warn users of illegal copyright infringement. There are six steps to the program which begins with a simple warning and develops into throttling of speeds and restrictions to web access - those on the content industry side a keen to point out that this does not result in the disconnection of internet accounts but realistically speaking the restriction in web access, which allows only for email and a very limited set of emergency service websites to remain open to a user is, in effect, the equivalent of disconnecting an account. Indeed the content industry appear to be asserting that any ISP that does not implement a web access restriction penalty is likely to lose their DMCA safe harbour protection - something that has not yet been tested in the courts in the USA.

Other negative points include the provision for "independent" review. On the fifth notification a user may pay $35 to have a case reviewed - this review is to be conducted by a service set up and funded by ISPs and the content industry and the onus is on the user to establish one of six grounds on which the mitigation measures - throttling and web access restriction - can be disputed. There is no option of seeking judicial review and the presumption is of infringement rather than of innocence.

The grounds on which a notification with a mitigation measure penalty can be disputed include:

(i) Misidentification of Account - that the ISP account has been incorrectly identified as one through which acts of alleged copyright infringement have occurred.

(ii) Unauthorized Use of Account - that the alleged activity was the result of the unauthorized use of the Subscriber’s account of which the Subscriber was unaware and that the Subscriber could not reasonably have prevented. (This includes open wifi but can only be used once as a defense creating problems for cafes and other commercial venues that allow open use of their networks.)

(iii) Authorization - that the use of the work made by the Subscriber was authorized by its Copyright Owner.

(iv) Fair Use - that the Subscriber’s reproducing the copyrighted work(s) and distributing it/them over a P2P network is defensible as a fair use.

(vi) Misidentification of File - that the file in question does not consist primarily of the alleged copyrighted work at issue.

(vii) Work Published Before 1923 - that the alleged copyrighted work was published prior to 1923.

The up side is that ISPs will not be handing out user contact details, rather passing on the notifications that they receive from the content industry. Another good point is that the notifications only last for 12 months after which a users record is wiped clean.

Participants include AT&T, Comcast, Time Warner Cable and Verizon. They will begin implementing the scheme in 2011 and 2012.

Further Reading
Center for Copyright Information Press Release, Music, Movie, TV and Broadband Leaders Team to Curb Online Content Theft Announce Common Framework for “Copyright Alerts” (7 July 2011) <http://www.copyrightinformation.org/node/704 > at 11 July 2011

EFF Deeplinks, The Content Industry and ISPs Announce a “Common Framework for Copyright Alerts”: What Does it Mean for Users? (7 July 2011) < https://www.eff.org/deeplinks/2011/07/content-industry-and-isps-announce-common > at 11 July 2011

TechDirt, Did The Entertainment Industry Backdoor In Forcing ISPs To Kick People Offline, While Claiming It Did Not? (8 July 2011) < http://www.techdirt.com/articles/20110708/01060815005/did-entertainment-industry-backdoor-forcing-isps-to-kick-people-offline-while-claiming-it-did-not.shtml > at 11 July 2011

TechDirt, Major US ISPs Agree To Five Strikes Plan, Rather Than Three (7 July 2011) < http://www.techdirt.com/articles/20110707/10173014998/major-us-isps-agree-to-five-strikes-plan-rather-than-three.shtml > at 11 July 2011

TechDirt, Get Accused Of Copyright Infringement Under New Five Strikes Plan? It'll Cost You To Challenge (7 July 2011) < http://www.techdirt.com/articles/20110707/11335714999/get-accused-copyright-infringement-under-new-five-strikes-plan-itll-cost-you-to-challenge.shtml > at 11 July 2011

ArsTechnica, Major ISPs agree to "six strikes" copyright enforcement plan (7 July 2011) < http://arstechnica.com/tech-policy/news/2011/07/major-isps-agree-to-six-strikes-copyright-enforcement-plan.ars > at 11 July 2011

ArsTechnica, White House: we "win the future" by making ISPs into copyright cops (7 July 2011) < http://arstechnica.com/tech-policy/news/2011/07/white-house-we-win-the-future-by-making-isps-into-copyright-enforcers.ars > at 1 July 2011

ArsTechnica, The six ways you can appeal new copyright "mitigation measures" (8 July 2011) < http://arstechnica.com/tech-policy/news/2011/07/the-six-ways-you-can-appeal-the-new-copyright-alerts.ars > at 11 July 2011

Digital Music News, Fuhgeddaboudit: ISPs Agree to 'Endless Strikes' Enforcement Plan... (8 July 2011) < http://www.digitalmusicnews.com/stories/070711alerts > at 11 July 2011

How To Sell 1 Million Albums and Owe $500,000

Creative Commons: The Power of Open

A couple of weeks ago Creative Commons launched a new book called "The Power of Open". It is available for free from their website here. Estimating the number of works licensed under Creative Commons at, at least 400 million at the end of 2010, this book provides accounts of individual creators and their experiences in using these open licenses. With respect to music in particular accounts are given by Australian songwriter and musician Yunyu, DJ Vadim, Dan Zaccagnino of Indaba Music, Curt Smith (formerly of Tears for Fears), Scott Nickrenz of The Isabella Stewart Gardner Museum in Boston, and Sylvain Zimmer of Jamendo.

It is a short read and worth the time to peruse. Take a look.


Further Reading
Creative Commons, The Power of Open (2011) < http://thepowerofopen.org/?utm_campaign=newsletter_1107&utm_medium=email&utm_source=newsletter > at 11 July 2011

Nina Simone on why music matters

Slow news day

I have been researching a post for this week without much luck - there is not a lot happening in the copyright world right now and I dont have an invite to Google+ yet so cant comment on that (soon I hope) but here is a great little song from Mimi and Eunice called Credit Is Due (The Attribution Song) - its very catchy:

Graduated Response USA

In January this year it was reported that ISPs in the United States had no intention of implementing a voluntary graduated response program for the illegal sharing of copyright material. This was recently supported by the USA signing a UN statement condemning the disconnection of internet users as a breach of the UN Covenant on Civil and Political Rights. This was despite earlier suggestions by the content industry that the enforcement of copyright law should be the responsibility of the Government. Now news this week that a voluntary graduated response program could be implemented as early as next month in the United States.

AT&T, Comcast, Verizon appear to be in the process of striking a deal with the content industry to introduce a range of measures designed to prevent or discourage the illegal sharing of music and film. The White House is also involved in the negotiations.

While disconnections do not seem to be part of the current equation repeat copyright infringers would receive notification that they have been detected sharing and following this sanctions such as throttling bandwidth speeds, limiting web access to the top 200 sites and compulsory participation in an education program are all being considered.

This seems to have come about due to the lobbying influence of the Motion Picture Industry which as joined the RIAA in calls for a graduated response program. The RIAA alone have been pushing for such a scheme since 2008.

This could lead to increased costs for consumers with ISPs reportedly splitting the cost of enforcement with the content industry. This includes innocent parties covering the costs of those that engage in file sharing.

Many argue that this is unlikely to have a positive effect on the sales of music and films with no direct correlation being made between sharing and lost sales. Indeed, what is more likely to happen is a further loss in sales with less exposure to new content and less opportunities for viral marketing.

This is an unfortunate development and one likely to have many more negative consequences rather than positive outcomes for artists. One can only begin to wonder what on earth the ISPs have to gain from this, with agreement to take on enforcement of intellectual property likely to open a can of worms that can never be overcome. This is a slippery slope and one that should not be embarked upon without judicial oversight.

Further Reading
TechDirt, Two Years After The RIAA Suggested ISPs Were Ready To Implement 3 Strikes, Most ISPs Have No Such Plans (5 January 2011) < http://www.techdirt.com/articles/20110105/03222912526/two-years-after-riaa-suggested-isps-were-ready-to-implement-3-strikes-most-isps-have-no-such-plans.shtml > at 17 January 2011

ArsTechnica, US, NZ, Sweden, others condemn "three strikes" Internet laws (14 June 2011) < http://arstechnica.com/tech-policy/news/2011/06/us-nz-sweden-others-condemn-three-strikes-internet-laws.ars > at 15 June 2011

ArsTechnica, IFPI: Fighting music piracy is a government job (21 January 2011) < http://arstechnica.com/tech-policy/news/2011/01/ifpi-music-piracy-hurts-us-but-fighting-it-is-governments-job.ars > at 22 January 2011

ArsTechnica, Big Content, ISPs nearing agreement on piracy crackdown system (23 June 2011) < http://arstechnica.com/tech-policy/news/2011/06/big-content-isps-nearing-agreement-on-piracy-crackdown-system.ars > at 27 June 2011

Digital Music News, ISPs Look Ready for 'Graduated Response'. But Isn't This 10 Years Too Late? (24 June 2011) < http://www.digitalmusicnews.com/stories/062311graduated > at 27 June 2011

ZeroPaid, AT&T, Comcast, Verizon to Implement “3-Strikes” Next Month? (23 June 2011) < http://www.zeropaid.com/news/93903/att-comcast-verizon-to-implement-3-strikes-next-month/ > at 27 June 2011

TechDirt, Why ISPs Becoming Hollywood Enforcers Won't Actually Solve Hollywood's Problem (23 June 2011) < http://www.techdirt.com/articles/20110622/23021514819/why-isps-becoming-hollywood-enforcers-wont-actually-solve-hollywoods-problem.shtml > at 27 June 2011