Copyright and the psychology of victimhood

Of course, there’s real oppression, then there’s having to pay for music you want to keep. You can listen to almost anything for free, anyway.

Your reporter’s view is that file-sharing is a real joy – that should be legally available. The music industry should concentrate on innovation, and delighting the substantial majority of us who are prepared to pay with new services, as its Number One priority. But it’s their stuff, and they’re entitled to go after the odd idiot who is too selfish to pay, or too stupid to know the law, if they want to.

Read more at The Register.

EU wants to erect opt-in hurdle for creators

A potentially incendiary EU report released today recommends making changes to the Berne Convention – and creating several new layers of bureaucracy in order to deal with the digitisation of cultural stuff. Creators would have to “opt-in” to a new database before getting their rights, which have historically been guaranteed by Berne signatories since 1886.

Berne is administered by the UN quango World Intellectual Property Organization (WIPO) and changes are made only every few generations – it was last amended in 1979. Undaunted, a committee of “wise men” (actually, just three people) reporting to the EU’s Information Society initiative i2010 Digital Libraries Initiative has recommended “some form of registration as a precondition for a full exercise of rights” [Our emphasis].

The problem? Berne establishes most parts of copyright as an automatic, global right. Unravelling this would undermine the entire treaty – which isn’t likely.
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How the photographers won, while digital rights failed

How did the music business end up with a triumph with the new Digital Economy Act? How did photographers, whose resources were one laptop and some old fashioned persuasion, carry an unlikely and famous victory? How did the digital rights campaigners fail so badly?

Back in January, a senior music business figure explained to me that Clause 17, which gave open-ended powers to the Secretary of State, was unlikely to survive the wash-up. But he didn’t much care; the other sections which compelled the ISPs to take action against infringers were good enough. Anything else was a bonus – possibly even a distraction. Yet to the amazement of the music business, web blocking is now legislation.

I think this is a watershed in internet campaigning. It’s not just a tactical defeat, it’s a full-on charge of the light brigade…

Read more at The Register

Kumbaya is not a legal defence

Maybe photographers have a guardian angel, after all. The Stop 43 campaign to throw out the orphan works clause may be the only part of the vast Digital Economy Bill where activists have achieved their goal – rather than made things worse. With the Tories pledging to drop the clause, it’s unlikely to survive the wash-up – although we won’t know for sure until very late tonight.

Eleventh-hour validation for the photographers came thanks to Labour’s obsession with Web 2.0 gimmickry, which delivered them a gift last Friday.

Labour launched a Photoshopped poster of David Cameron as Gene Hunt, which the Guardian soberly reminded us, showed “a recognition that the best ideas do not always belong to ad executives in London”.

Two Milliband brothers were on hand, looking extraordinarily pleased with themselves. Just one problem: they didn’t ask for anyone’s permission. Image rights for Life on Mars and Ashes to Ashes belong to the BBC. Cameron’s mugshot is also under copyright.

The problem with Freetards is that they don’t just miss the point, they close their eyes and run as fast as they can past it, screaming.

“It demonstrated every point we had been making,” a Stop43 campaigner told us today.

It’s not the first time Labour has used images to which they have no rights. And to demonstrate that they’re 100 per cent fail-compatible with Labour, the Webtastic Tories followed suit.

It didn’t go unnoticed by MPs.

Yesterday Peter Luff (Con.) pointed out it was a “spectacular demonstration” of Stop43’s points.

Tom Watson MP, currently with Labour but also the First Minister of Freetardia, disagreed. He arose to gave the boilerplate Web2.0rhea perspective:

“That message was mixed by Labour spin doctors, then remixed by Conservative spin doctors. He is proving the point that mixing culture and the power of sharing are new in the internet age”

“That is precisely why the Bill is so incompetent. We are not going to stop people sharing content with each other and using it creatively to create new things. He should be proud that young people are mixing up these images to engage in political debate.”

Maybe.

But the problem with Freetards, even Freetard MPs – is that they don’t just miss the point, they close their eyes and run as fast as they can past it, screaming.

It was left to Luff to apply the lethal injection:

“Ah, that is a very interesting point,” he said. Luff pointed out that a quick search showed how easy it was to find the BBC original and contact the photographer. There was even a telephone number. He continued:

“We should not forget that the BBC, as this blog says, is one of the main proponents of a Bill to allow use of other people’s images in ways they did not envisage without permission or payment, yet it is furious that without permission or payment someone has taken a BBC image and used it in a way that the BBC did not envisage.”

Moral rights, or droit d’auteur, isn’t mentioned very often in Professor Lawrence Lessig’s books. That’s undoubtedly why Watson hasn’t heard of it.

Pirates and the politics of spite

If “digital rights” becomes reduced to gesture politics, only one group can win: the one with the biggest, boldest, daftest gesture

A clear winner is emerging from the Digital Economy Bill – and it’s the UK Pirate Party. The penny only really dropped for me yesterday, after the Open Rights Group’s big demonstration at Westminster.

“What was all that about, Andrew?” someone asked me in the pub afterwards. He’d been at the Commons for a meeting, and walked past the demo too. The confusion was understandable: the ORG’s clever wheeze of blank placards and a silent protest meant anyone walking past had no idea what it was about. The glorious exceptions were a beautiful banner and a large flag from the Pirate Party. The logo is very cool, as you know.

As an exercise in communicating, the Pirates were the only success of the event. At least the logo will have got on TV, and made an impression with passers-by.

Nobody particularly likes the Bill, but as long as the sheer joy of filesharing remains an illicit one, and not part of the legitimate music market place, then Piracy will have a lustre, and the Party will be in with a chance. You may find them childish, ignorant and selfish – as I do – but they have a simple message that eludes other digital campaigners. But I think the Pirates may flourish for a few other reasons. I’ll try and explain what they are.

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Google knew YouTube ‘did evil’ – but bought it anyway

Do no evil? Google execs knew YouTube was in the wrong, but swallowed hard and bought it anyway, emails disclosed to a US court show. In 2006 execs at the Chocolate Factory were aware that the startup was less than wholesome, describing it as a “rogue enabler of content theft” whose “business model is completely sustained by pirated content” – in emails now made public. They acknowledged it would raise ethical questions.

In October the same year, Google acquired the video site for $1.65bn. The cynical calculation meant swallowing a few principles.

Google Video business product manager Ethan Anderson wrote to Patrick Walker, a senior Google executive:

“I can’t believe your [sic] recommending buying YouTube. Besides the ridiculous valuation they think they’re entitled to, they’re 80% illegal pirated content.”

To complete the purchase, Google’s definition of evil needed to become as flexible as The Invincibles’ Elastic Girl. David Eun, content manager at Google wrote:

“As Sergey [Brin] pointed out, is changing a policy to increase traffic knowing beforehand that we’ll profit from illegal downloads how we want to conduct our business? Is this Googley?”

In other documents, YouTube’s co-founder Steve Chen declared that YouTube should

“concentrate all our efforts in building up our numbers as aggressively as we can through whatever tactics, however evil”.

And so Google rewarded evil: Chen received Google stock worth $310m from the acquisition. It has since increased in value. YouTube investor Sequoia Capital realised over $500m from a mere $9m investment. If you’re wondering just what technological innovation or original idea Google was supporting – you’ll be scratching your head for a long time. The value of YouTube was its collection of other’s people’s stuff.

The emails are a devastating indictment of Google’s ethics – and the Chocolate Factory must have anticipated the damage the disclosures would cause. Overnight Google launched a spoiler, leaking a batch of emails alleging that Viacom uploaded its own material to the site. It’s embarrassing, for sure, but not in the same ballpark – Viacom’s property is Viacom’s property to do what it likes with.

'Thousands' sign up for legal P2P

Tens of thousands of students have signed up to pay for a legal P2P music program in US universities, set to start later this year in experimental form. It’s Choruss, the incubator hatched by Jim Griffin – a long-time advocate of licensing P2P sharing on networks.

Choruss won’t ultimately be in the retail or service business, Griffin told us in Washington DC today – but it may provide an “umbrella” for managed service companies such as Playlouder MSP, the technology partner for the suspended Virgin Unlimited music service. “We’re not in the business of distribution,” he said. Griffin was also on a panel at the biennial World Copyright Summit, organised by CISAC, the global organisation for collective rights management societies.

Griffin says this year’s phase of Choruss is designed to experiment with pricing. Different colleges will get different pricing schemes.

“The plan is to use next school year to run tests and experiments,” he said. Only after the scheme has been running will an assessment be possible – but Griffin told Summit delegates that, “We’ve had students tell us it’s worth $20 a month – to share what they want to share.”

The fact that such large numbers have volunteered to pay for a P2P service defies the conventional music industry wisdom that the only way to compete with the pirates is with free offerings. It also shows how much Choruss has evolved since it first broke the surface last April, when talk was of opting students in automatically, in return for a “coventant not to sue”.

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Who killed Three Strikes for filesharing?

A badge of pride

Rejoice! “Three strikes and you’re out” is dead in the UK. Music file sharers will no longer face the threat of seeing the household broadband connection severed. The plague that is currently endemic in France won’t be jumping the English Channel.

Strangely, some people want to keep it alive. Stranger still – this includes the “digital rights” lobby.
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So is sharing a folder copyright infringement?

A US Judge on Monday upheld the view that sharing copyrighted music is infringement. It’s a defeat for defendant Denise Barker and the Electronic Frontier Foundation, and a victory for the four record labels in the case, led by Warner’s Elektra.

The Copyright Act is fairly clear. It defines “publication” as “offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display” – but sensibly separates out performance or display itself from the definition. The legal code defines five exclusive rights of copyright: reproduction, adaptation, publication, performance, and display.

Now, digital media blurs the distinction between performance and distribution in lots of interesting ways, but unfortunately, none of these were raised in the case. The EFF instead homed in on the technical point of whether publication was distribution.
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