RIAA Wins Over ISPs

Judge Denny Chin of Manhattan has ruled that Cablevision and other ISPs must hand over details of file swappers to the RIAA to assist in their pursuit through the courts.

This contradicts a previous decision by the Washington DC appeals court, and only applies in New York, New Jersey and Connecticut. Specifically, it states that Cablevision has to provide personal details of a subscriber even before the RIAA has decided to sue him or her. The decision has surprised many in the industry.

It was the previous Washington decision that forced RIAA to prosecute downloaders as John Does, with decidedly mixed results – the RIAA only found out targets’ identities when it got to court.

It is staggering that a commercial body now has the power to extract personal information about members of the public from another company. Although the recent ruling does contain a provision that the RIAA must have a firm case against a user before demanding personal information – though of course, “a firm case” is always open to interpretation.

RIAA

Cablevision

The IBC Digital Lifestyles Interviews – Simon Perry – Part I

This is the first in a series of eight articles with some of the people involved with the Digital Lifestyles conference day at IBC2004.

We interviewed Simon Perry, the executive producer of the Digital Lifestyles theme day, in a two-part feature that covers on the makeup of the day and question him convergence and other aspects of the media. He publishes Digital Lifestyles magazine.



Fraser Lovatt: Tell me about the four discussion sessions at IBC this year.  What are they about and who’s speaking at them?

Simon Perry: When the Digital Lifestyles day was introduced at IBC last year, my aim was to set the scene – to signal the change in the content industry. This year builds on that, by highlighting four specific areas that merit closer attention by the creative, business and technology people.

The day will inform the delegates on the new types of content possible, how to get paid for it, where you can deliver it and the business models around it.

The first session is titled ‘New platforms, new content’.

It is set in the context that, with new content delivery methods comes new forms of content. It’s chaired by Ashley Highfield, director of New Media & Technology at the BBC, and will create a discussion between some of the most experienced and forward-thinking Games, Film and TV people. In each of their fields they are bringing together different strands of content, creating something that couldn’t have existed previously, such as content that migrates between platforms, creating united content.

The second session is about getting paid for content. Up to now, the industry has been focused on protecting the content that they have, which is understandable and technology companies have been more than happy to assist them.

I feel this is a distraction. The really key part is how the consuming public are going to pay for content that they think is worth paying for, whether they receive it to their mobile phone, their TV, via broadband to their PC’s or through an adaptor on to their TV. The methods of payment are as diverse as the delivery methods.

The panel brings together the knowledge and experience of people who are successfully receiving payments from the public for text and video content; others offering payment systems that take small amounts, less that a pound/dollar, online and others that use mobile phones to make payments.

Tim Jones, the CEO of  Simpay will be on the panel. Simpay was brought to life by the four major mobile phone networks in the UK. The first stage of their service offers the phone-carrying public to pay for phone delivered content – catching up with the currently favoured premium-rate SMS charging. The next stage is – and this is where it becomes a more interesting example – allowing you pay for any types of content, as well as physical goods from shops, using your phone. It is something that has been theorised for a long time and Simpay appear to be pulling it together now. Tim’s background is particularly interesting. He co-invented Mondex, which as we all know, was the first form of public e-cash in the UK.

The third session is chaired by Ken Rutkowski of Ken Radio, and is about informing the content creators about the increasing range of platforms that are available to them for distributing their content. Within the industry there are different stages of knowledge, expectation and experience of what digital lifestyles will mean to the creators of the content, as well as the public. In this third session they will explore what roles different media play on different platforms and the effect it is going to have on the type of content people produce. Ken’s enthusiasm will lift the best out of the panellist.

The forth session is future business models chaired by media journalist, Kate Bulkley. It will explore the models that will run aside 30-second spot ads; mobile delivery; gaining benefit from efficient delivery to different platforms; generating new revenue from TV. There’s a lot of innovation in this area.

What does convergence mean to you? What’s your internal definition of it?

It’s an interesting word. It’s been around for a long time – and increasingly, over the last six/nine months it has become to mean anything that any marketeer wants it to mean. The original definition saw all devices being morphed in to one device. It’s clear that there won’t be convergence to that extent. It’s becoming less defined. The more it enters everyones vocabulary, the wider the definition becomes. Perversely it’s definition is diverging.
 
The convergence that Digital Lifestyles magazine focuses on, is how the influx of technology into the creation, transfer and reception of media content is changing the industry. Where media and technology touch, is what’s of interest to us, and the impact it will have.

There is an argument that media has always been a technological activity. From first workings and marking things on cave walls to the development of perspective, to the first film studios to television. It has always been technology-led.

That is probably true. Well it’s not probably true – it is true. The definition of what is technology is a sliding window, isn’t it? Pens, paper and the printing press were all once thought of as advanced technology, and then they slowly shifted to become the norm. I would argue that the window moves more quickly these days.

But media always seems to be at the forefront of technology – many technological breakthroughs are media related and have been throughout the history of mankind.

Technology has certainly had an influence – I don’t know whether media has always been pushing technology, or whether it has always been using the latest technology. It certainly has previously utilised it, and the people who have utilised the technology are the ones that have had the upper hand. Look back to Murdoch in the use of technology in the production of newspapers, originally pioneered by the Eddie Shah with Today.

I think people get business advantage by using technology and media. I don’t think necessarily the mainstream media are quick in adopting technologies and making the most of them, and that’s frustrating. However, this gives a space for the people who are outside the mainstream media, micro-production companies if you will, to use the technologies to create and deliver their content to an audience on an economic basis.

Do you think the public thave an active participation in convergence? Do they see the convergence as something they are getting involved in or do they see it as something that has happened around them? Five years ago they were going out and buying DVD players and now they are buying PVRs – Do you think they are seeing it as progress or just something new to buy?

Let’s use digital music, because that’s quite a good example. One of the articles on Digital Lifestyles today covered the Virgin Music Player, a little thing you just hang on your waist.  People will obviously notice that they don’t have to carry around a bulky CD player or a mini disc player or a cassette player, but as to whether they realise that the changes are wider reaching than that – I doubt it. It will feel like another small step.

These days people are now conscious of change. They have come to expect things to change. They are becoming numbed to the “Oh my god” reaction, when they come into contact with a new use of technology.

The people in the industry see it as significant, because they see the long-term impact.
 
One of the ironies I perceive with convergence is that the media itself, those pieces of entertainment like music, film and to some extent e-books, are becoming fragmented through platform and DRM issues. Do you think that we will be happy buying three versions of the same thing in the near future because the DRM or file formats are incompatible, or do you think that this will be resolved gracefully?

Incompatibility is a fear of mine and yes, in the short term, it is likely. It’ll happen because of the number of incompatible content protection systems that are around. I think the industry, whether it be the providers of content protection or the media companies, which are using the content protection systems that don’t allow interchange between devices are going to do themselves a disservice and, if it continues, will frankly end up irritating the customer.

I have asked the question to quite a number of people in the media business and technology business – I have never really had a good answer from them either. How do you sell the public something that’s less good, through it’s restrictions, than the thing that is being replaced? Something that ends up flexible, even though the form it is held in allows greater flexibility? So, short term I think it probably will be a problem. I hope that it won’t be a problem beyond the short term.

It can be argued that a lot of the fragmentation that we are seeing in media in file formats and devices is down to proprietary systems that are involved in the creation of media, and in its protection and distribution so we have DRM, we have CDs which can’t be played on PCs.   These are all proprietary.  Do you think there is a place for open standards in a convergent media culture?

I think the reason this hasn’t happened so far is that the prize is so enormous. The prize for being the provider of content protection is to be one of the largest businesses in the world. Much commercial material will only reside in the rights holders-approved DRM formats; ones that they feel protect their interest. That’s not to say that there won’t be a huge market for other content in another format, and that could be an open format.

Do you think that one company will be allowed to hold the keys for content protection?

Who is going to stop them? Are you talking about Government restrictions?

Some view it as a monopoly.

Certainly from the discussions I have had with content creators of the large studios, there is an unease with a number of companies holding all of the keys. There have been many suggestions as to the way that could be got around. One I found interesting was Fraunhoffer’s Light Weight DRM (LWDRM), but it still relies on a central repository that decides whether you are entitled to this music or that you have paid to have access to it.

The Fraunhoffer response to that question is to say, well we place that with a third party – so you split up the business of running the content protection system away from the business of holding the keys to the access to that content. Their suggestion was that it be done by institutions like the German post office. Different nations have got different relationships with their governments. So that’s something that might work in a country such as Germany, but not others.

There are two arguments – on the open source side there are many people, the Electronic Frontier Foundation (EFF) for example, who argue that there should be no content protection and people will pay for their content, relying on the good nature of man.
 
Rightly or wrongly, that is not how the mainstream media industry sees it. But if you look at companies like Warp Records, they sell their music in MP3 format. They have taken a more open file format, which can be exchanged quickly between different formats and difference devices. The consumer in me sees this as completely reasonable. I buy something and then I am able to put it on whichever device I want.

I did some research for the European Commission on a unified media platform called N2MC and it became clear from speaking to a wide range of people, along the whole creation-to-distribution change, that the idea of an open source content protection system didn’t currently work for them.

Because it could be easily reversed engineered?

It was seen as a weakness in the chain. One part of a content protection system must remain proprietary.

This interview is continued and concluded here.


Simon is chairing ‘The missing piece – Getting paid for content’ session between 11:30 and 13:00 at the IBC conference on Sunday, 12th September in Amsterdam. Register for IBC here

IFPI: 35% of All CDs Sold Worldwide are Illegal Copies

The International Federation of the Phonographic Industry has published a report claiming that 35% of all CDs sold around the world are illegal copies – that’s 1.1 billion pirate disks. The report also includes a list of countries recommended for government action: Brazil, China, Mexico, Pakistan, Paraguay, Russia, Spain, Taiwan, Thailand and Ukraine.

Sales of illegal discs rose 4% in 2004, though the year saw the slowest increase since 2000, an indication that increased anti-piracy activity is having a positive effect.

Clearly the biggest threat to the record industry today is not P2P networks but the more traditional CD copying seen in the the IFPI’s ten priority countries where anti-piracy offensives are most needed.

The report contains a four point “Call to Governments” asking for strong and updated copyright laws, sentences to deter pirates, the regulation of disc manufacturing and a commitment to prosecute copyright infringers aggressively.

IFPI Chairman and CEO Jay Berman said: “Commercial music piracy dominates large swathes of the world’s music markets, despite an encouraging slowdown in growth in 2003. This illegal trade is funding organised crime, fuelling widespread corruption and costing governments hundreds of millions of dollars in lost taxes. It is destroying artist careers and music cultures, and robbing countries with high piracy rates of billions of dollars of investment they would otherwise enjoy.

“The responsibility now is for governments – and especially on the 10 priority countries our report names – to act decisively against the problem. This means proper enforcement, deterrent sentences against pirates, effective regulation of disc manufacturing and, above all, the political will to make sure real change happens.”

The report

UK Film Companies Launch New Anti-Piracy Offensive

“Piracy is a Crime” is the new UK£1.5 million ( €2.25 million) campaign from the UK film industry, launching today.

Film makers have grouped together with retailers like Asda and HMV to form the Industry Trust for Intellectual Property Awareness, and have predicted an annual loss of about UK£1 billion (€1.5 billion) to the film industry in 2007.

To combat this, the new campaign has a tough new message for the public.

A new trailer seeks to educate the public that film piracy has links to organised crime and funds terrorist activities. By issuing posters featuring a gunman, the ITIPA is hoping to capitalise on the public’s fear of terrorism to discourage the public from buying dodgy DVDs down the market.

The majority of public opinion seems to be that piracy is a “soft crime” with no real victims, whereas low risks and high returns are making it an attractive option for criminal gangs – raids to premises involved in piracy have also unearthed drugs, pornography and weapons.

FACT

Google, Orkut and Affinity Engines’ Social Networking Suit

Google is facing legal action after Affinity Engines (AE) accused them of using their code in their Orkut social networking site.  This is all splendid timing for a company that is planning a major IPO.

They claim that the code was taken to Google by Orkut Buyukkokten, who had also promised Affinity Engines that he wouldn’t develop a competing social network product.

It’s not looking good for Google – nine bugs present is Orkut are also present in Affinity Engines’ inCircle product. In addition to the bugs, AE claim that there are textual similarities between the two sets of source code.

Google refuted the claims in a statement to Wired News: “Affinity Engines has not provided any evidence to Google that their source code was used in the development of orkut.com. We have repeatedly offered to allow a neutral expert to compare the codes in the two programs and evaluate Affinity’s claims, but Affinity has rejected that offer.”

Orkut is a Turkish citizen and was working on inCircle when he ran into some visa problems. Taking a job at Google was a way to get round this, but he kept working on inCircle – though signed agreements not to develop any further social-networking technology and confirming that any code he developed belonged to AE.

The name of Google’s new social networking site couldn’t be a more obvious indicator of who has been working on it.

Orkut

About inCircle

FindLaw: 56% of Americans Oppose RIAA Lawsuits

A survey by legal website FindLaw has found that 56% of those polled were opposed to the legal actions currently being undertaken by the music industry. With the Recording Industry Association of America stepping up its action and the new Pirate Act coming into effect, then this dissatisfaction can only increase.

3,400 people have been sued since last September – more than 600 of those cases have been settled for an average of US$3000 (€2,473) each, netting the RIAA at least US$1.8 million (€1.48 million). No case has gone to court, no artists, ostensibly the victims of file trading, have received any of this money. Recent figures suggest that CD sales are up 10% on last year, legal music download sites are doing such good business that the market is rapidly becoming crowded.

FindLaw surveyed 1000 participants and found that 56% were against the lawsuits, 37% supported the action, and 7% had no opinion. Opposition is higher amongst younger people, with nearly two thirds of those between 18 and 34 objecting.

Quoted on the FindLaw site, Professor Sharon Sandeen,intellectual property law tutor at the Hamline University School of Law in St. Paul, Minnesota said: “Although the RIAA’s lawsuits are unsettling to many, they are based upon sound law because it is a clear violation of copyright law to make a verbatim copy of a protected sound recording,” says “The underlying public policy at work is the notion that without copyright laws, musical artists would be less inclined to create music and, as a result, there would be fewer sound recordings. So the individuals who complain about the lawsuits should ask themselves: ‘Would I rather live in a world with freely distributed but less music, or pay for the music I enjoy so that there will be more of it?'”
“I suspect that many people, when educated about the purpose of copyright law, support the law,” Sandeen continued. “Public opposition to the lawsuits may be due, in part, to what some people consider hard-handed tactics by the RIAA.”

FindLaw, legal news and commentary

US Senate Passes Pirate Act Without Hearing

The US Protecting Intellectual Rights Against Theft and Expropriation (PIRATE) act has been passed by the voice vote in in the Senate on Friday. The act still has to be passed by the House and signed by George Bush, but already carries a US$2 million (€1.64 million) budget for civil lawsuits against violators in 2005.

The act allows the Department of Justice to sue alleged copyright infringers, in addition to those cases brought by the Recording Industry Association of America. The RIAA are naturally very pleased that they have some backup in the hundreds of cases they have bring launching.

“I commend the passage of these common sense proposals that offer flexibility in the enforcement against serious crimes that damage thousands of hard-working artists, songwriters and all those who help bring music to the public,” Mitch Bainwol, RIAA chairman and chief executive officer, said in a statement. “These acts will provide federal prosecutors with the flexibility and discretion to bring copyright infringement cases that best correspond to the nature of the crime, and will assure that valuable works that are pirated before their public release date are protected.”

The Electronic Frontier Foundation rightly points out on their website that no money from any of these cases goes to the artists whose work is being infringed.

Orrin Hatch, a Republican Senator who is one of the sponsors of the act, has a related project up next, the Inducing Infringement of Copyright Act. This act sets out to penalise companies for producing technologies that can potentially be used to pirate content – such technologies include CD writers and iPods. Aside from the obvious loss of personal freedom and backwards technological step, the EFF is concerned that the act could be misused – if your competitor manufactures something that you don’t like, say the iPod for example, then you can claim that it has the potential to infringe copyright.

The Department of Justice

The Electonic Frontier Foundation

Microsoft Asks for Hearing Delay

Microsoft have asked the European Union, by way of a 100 page appeal, to delay a Commission ruling regarding its distribution of Windows Media Player.

If the stay request is granted, it may well delay the the EU court’s final verdict by several years – during which time Microsoft will be able to continue distributing Windows Media Player in its usual manner. Obviously this renders the EU ruling against Microsoft completely useless.

The ruling was intended to force MS to share interface information with competitors so that they could integrate their own media players with Windows, and to provide a version of Windows which does not have Media Player pre-installed.

Brussels also fined the company €497 million (US$602 million), but this will make little impact on a company with at least €50 billion (US$60 billion) in cash reserves.

Since the appeal may take up to five years, which is effectively forever in digital media terms, Microsoft will be able to expand the installed base still further without sharing information with competing software manufacturers, or providing a choice of media player to those who don’t want WM9 – or WM11 as it may well be by the time the ruling comes into effect. Microsoft originally had (from March 24 this year) 90 days to offer Windows without Media Player, and 120 days to begin sharing information.

Europa

Busy Times for Vivendi

Vivendi Universal Games has announced a restructuring that will mean the loss of 350 jobs.

Blizzard, VUG’s key games developer, is said to not be affected, which is just as well as the studio’s forthcoming Worlds of Warcraft MMORPG (repeat after me: massively multiplayer online role-playing game) has many gamers in an absolute froth of goblin-smashing anticipation. If WoW doesn’t revive the parent company’s flagging fortunes, then nothing will.

If you think that’s bad, it gets Messier.

The former Vivendi Universal chairman Jean-Marie Messier was arrested on Monday for his part in a massive share buyback scheme. It’s alleged that the company spent at least €1 billion (UK£1.5 billion) propping up its share price in 2001, buying back 21 million shares in September 2001, just 15 days before publishing its financial results.

Messier has been taken into custody in Paris and is expected to cool his heels there for a couple of days before being charged.

Messier’s woes began around the time he was booted out of Vivendi in July 2002 after the billions of euros of acquisitions he made nearly destroyed the company.

Vivendi Universal

Microsoft’s New Patent on Clicking

Microsoft have a new patent, relating to launching applications on PDAs. The patent describes launching different programs according to how many times a hardware button is pressed, for example one press for Contacts, twice for Calendar, three times for Hover Bovver.

If you still have a digital watch, it’s exactly the same technique you use every six months when the clocks change and you have to remember how to set the damn thing. Thankfully, this MS patent only applies to hardware buttons on PDAs running Microsoft’s PocketPC operating system.

The irony is not lost on Digital Lifestyles, as we reported last week that Microsoft have just joined a group whose very existence to is prevent obstructive patents and overhaul the US Patent and Trademark Office, renowned for issuing daft patents. We’re also reminded of our very own BT’s claim on owning the patent on hyperlinks.

Microsoft’s patent and licensing programme

BT’s hyperlink patent