John Lemke's List: New Media Order

• Some of these DMCA rules outline restrictions on the frequency some songs can be played. 

  In any 3-hour period, we can webcast: 

   
  • No more than 3 songs from one album;
    no more than 2 played consecutively 
  • No more than 4 songs from a set/compilation;
    no more than 3 played consecutively 
  • No more than 4 recorded songs by the same artist
    (live studio appearances are okay) 

• the best way, by far, to decrease infringement is to offer awesome new services that are convenient and useful.
• the two largest contributors to holding back "piracy" lately, it's been Netflix and Spotify. Those two services alone have been orders of magnitude more successful in decreasing infringement than any new copyright law. Because they compete by being more convenient and a better experience than infringement.
• SOPA and PIPA, won't be effective in dealing with that. The internet always has a way of routing around "damage" no matter how hard people try to stop it, and the approach put forth by these bills is a joke. It's hard to find anyone with technology skills who thinks that they will be effective.
• The private right of action efforts are also mistargeted. They're based on the premise that infringement is done for monetary reasons.
• While PIPA targets only foreign sites, the mechanism by which it does so is to put tremendous compliance and liability on third party service providers in the US. SOPA goes even further in expanding the private right of action to domestic sites as well. We've already seen how such laws can be abused by looking at how frequently false takedown claims are made under the existing DMCA. Of course, under the DMCA, just the content is blocked.
• Advertising giant GroupM recently asked its entertainment industry customers to compile a list of "sites dedicated to infringement," not unlike what's found under PROTECT IP. Universal Music, Warner Bros. and Paramount were three key providers to that list, which ended up covering a large number of perfectly legitimate sites including the famed Internet Archive (widely recognized as the library for the internet). It also included numerous innovative startups that are frequently used by content creators to get their works out, such as SoundCloud and Vimeo.
• Even worse, it appears that Universal Music also included the personal website of one of its own top artists, 50Cent. The hiphop star has a personal website as well as a website owned by Universal Music. The personal website is much more popular... and it appeared on the infringement list. Suddenly, you can see how letting companies declare what sites are dedicated to infringement can lead to them looking to stifle speech and competition.
• Similarly, Monster Cable, who has stated its support for PROTECT IP, has put together its own list of "rogue sites" and it, rather stunningly, includes sites like eBay, Craigslist, Costco and Sears. It even includes consumer rights groups like Which? in the UK, and various popular shopping search engines like PriceGrabber.
• Broadly expanding secondary liability is a dream for trial lawyers, but will be a disaster for business. There's been a move, associated with these bills to somehow demonize important concepts of safe harbors from secondary liability. The suggestion is that secondary liability somehow "allows" bad activity. Nothing is further from the truth. Illegal activity is still illegal. The point of safe harbors from secondary liability is blaming the party actually doing the action that breaks the law. We don't allow people to sue AT&T because the telephone was used in commission of a crime and we don't sue Ford because someone crashed their pickup truck into another car.
• It's why a group of core internet infrastructure experts spoke out very early on (about COICA, in the pre-PIPA days) to explain how DNS blocking would set back a decade or more's worth of work on online security standards, would make people less safe online, and has the risk of fragmenting the internet.
• "reasonable measures" to block even more is also not encouraging. Does anyone really think that we want some judges determining what are "reasonable measures" for managing how the internet works? Wouldn't it be better to trust the long line of experts, drop any thought of DNS blocking, and move on?
• law professor Derek Bambauer has made clear, any effort to block content is a form of censorship. What we can argue is whether or not this form of censorship makes sense or is a policy that people think makes sense. But no one should deny that bills that lead to blocking access to websites is a form of censorship.
• Constitutional scholar Laurence Tribe has argued that it does violate the First Amendment.
• The functional setup of such site blocking -- via DNS blocking -- is effectively identical to how the Great Firewall of China works.
• making certain forms of "streaming" a felony. Supporters of these actions insist that they're merely harmonizing criminal and civil copyright laws, since the felony parts of the criminal copyright statute cover reproduction and distribution, but not performance. What they fail to recognize (or admit) is that there's a reason why performance rights were left out, and it's because it's pretty ridiculous to think of a felony performance in normal contexts.
• The Player Piano 
  
   “I foresee a marked deterioration in American Music…and a host of other injuries to music in its artistic manifestations by virtue – or rather by vice – of the multiplication of the various music reproducing machines” -- John Philips Sousa, 1906 
  
   The Video Cassette Recorder 
  
   "But now we are faced with a new and troubling assault on our fiscal security, on our very economic life, and we are facing it from a thing called the Video Cassette Recorder" -- MPAA President Jack Valenti in 1982 
  
   Cassette Tapes 
  
   "When the manufacturers hand the public a license to record at home...not only will the songwriter tie a noose around his neck, not only will there be no more records to tape, but the innocent public will be made accessory to the destruction of four industries" -- ASCAP, 1982 
  
    Digital Audio Tape  
  
  
  
   The Mp3 Player  
  
   “Diamond's product Rio was destined to undermine the creation of a legitimate digital distribution marketplace..." -- RIAA President Hillary Rosen in 1998 
  
   The Digital Video Recorder 
  
   "It's theft...Any time you skip a commercial or watch the button you're actually stealing the programming." Turner Broadcasting CEO Jaime Kellner in 2002

14 more annotations...

• For five days in a row Kim Dotcom’s tweets directed at Barrack Obama were the most retweeted mentions of the U.S. President, a sign that Dotcom’s vendetta against the forces that shuttered Megaupload is clearly being noticed.

• Hiring cheap talent out of local colleges, Gorman and Sanders put together the “family” that created a station that, once FM penetration had reached critical mass by the mid ’70s, never relinquished its market dominance until the late ’80s. Sanders pointed out that one of the most significant aspects of the station’s reputation as a breaking market for artists like Rush, Bruce Springsteen, and Todd Rundgren was to find a balance between the new and the familiar.

• Gorman suggested that the station’s reputation for picking the right acts to back had to do with soliciting input from multiple staff ears. He said they asked record label reps to give them albums for each DJ, thinking that what one person might not hear another would.

   

  Gorman related one of several stories that illustrated how WMMS combined determination and persistence with an uncanny knack for recognizing elements in the culture and happy accidents that could play into what they were doing. Gorman had already decided on the buzzard as the station’s “mascot” — still used to this day. But he had no artist. Then the station received a letter from a listener written as an illustrated comic strip. It had only a first name and a street name. Through diligent detective work, they tracked down David Helton. He drew the buzzard for nearly 20 years and created the distinctive look of the station’s promotion and advertising.
• Ramstrom suggested that it would have to be local and live — in contrast to today’s stations usually formatted for a chain of stations in some distant office. Bass said he thinks the culture to support it no longer exists, and Tibuski said “The capitalization would be enormous considering all the platforms you’d have to cover. There are not many long-term investors today.”
• “I think there’s still a need for gatekeepers,’ said Gorman. “One of the things that made WMMS happen was it had an incredible team. I think we will have something emerge from the Internet with gatekeepers who are passionate about what they are doing.”

2 more annotations...

• This is hardly a surprise, but similar to the Joel Tenenbaum case, Jammie Thomas-Rasset (the other person sued for copyright infringement for using a file sharing system), has lost again. The appeals court (8th Circuit) has ruled that $9,250 per song infringed is perfectly reasonable and that the judge in the case, Michael Davis, erred in calling for a new trial after the initial jury verdict (the first of three). There were a number of procedural issues here, and it's worth pointing out that Thomas-Rasset herself more or less asked the court to bring back this first verdict and focus on the Constitutionality of the damages amount. So, the whole mess with the three separate district court trials sort of gets swept under the rug. However, the court simply isn't buying Thomas-Rasset's claim that the statutory damages are unconstitutionally punitive and a violation of due process. Basically, it says that the fact that statutory damages are completely out of whack with actual damages doesn't matter, because the point of statutory damages is that they're disconnected from actual damages on purpose (because, in theory, they're put in place because actual damages are difficult to assess).

• Jammie Thomas-Rasset
• the first US file-sharer to take her RIAA-initiated lawsuit all the way to a trial and a verdict back in 2007. Five years, three trials, and one appeal later, she owes $222,000 to the recording industry for sharing songs on the Kazaa file-sharing network, but she doesn't plan to quit fighting.
• Thomas-Rasset will follow Joel Tenenbaum, the second US resident to take his file-sharing case that far. Tenenbaum—who reached the Supreme Court first because he had only one jury trial instead of three—tried to convince the justices that they should take his case to stop the music label plan to create, in his lawyer's words, "an urban legend so frightening to children using the Internet, and so frightening for parents and teachers of students using the Internet, that they will somehow reverse the tide of the digital future." The Supremes showed no interest, denying Tenenbaum's petition back in May.

1 more annotation...

• Despite the setback Thomas’s lawyers have made it clear that they intend to continue appealing, to the U.S. Supreme Court if need be, although they’ve made no announcement yet in response to the current ruling.