The RIAA has been touting this for a little while already, but the AFL-CIO has officially signed on to support the RIAA’s highly questionable performance tax. This is a bogus attempt to boost RIAA revenue by taxing radio stations for promoting their music. The RIAA has been going around claiming that radio promoting its music is a “kind of piracy”, while at the same time claiming it’s somehow illegal for radio stations not to play RIAA music. Yeah. Logic is not the RIAA’s strong suit. Even worse, of course, is that the RIAA has blatantly demonstrated that it knows there’s tremendous value in getting its music on the air. It’s been involved in payola scams for decades. To basically get the government to mandate reverse payola is the height of obnoxiousness.

Of course, what does the AFL-CIO have to do with any of this? Absolutely nothing. It’s pure politicking on the part of the RIAA and its offshoot lobbying group musicFIRST. The main point is to get more Congressional folks on board with the tax by saying “the unions support it!” Somewhere down the line, I’m sure the RIAA will come to the support of the AFL-CIO on some other random bill as well.

But what’s really ridiculous is the statement made by the AFL-CIO explaining why they support this:

“The labor movement was founded on the principle that a hard day’s work deserves a fair day’s pay. That’s the principle at stake in the fight for the Performance Rights Act.”

But that’s not even close to true. The Performance Rights Act is about the opposite of a fair day’s pay for a hard day’s work. It’s about getting paid over and over and over and over and over again for a bit of work done years ago. And, it’s not a “fair day’s pay” either. A fair day’s pay is a contractually agreed upon wage between two parties. This is about the gov’t forcing a totally unnecessary and nonsensical tax on radio stations for promoting RIAA music. In what world is it fair to tax someone who helps promote your work?

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I have to admit, I thought it was pretty amusing to see this headline in the BBC:

Yahoo chief Carol Bartz sees trouble for Google.

What else is she supposed to say? Of course she’s going to slag the company that totally destroyed Yahoo at its own game, but the real question is why would anyone listen? Yahoo isn’t exactly in the position of being able to say what Google should be doing, given that every single move that Yahoo has tried against Google has failed — sometimes miserably. Bartz’s comments get more amusing the further the article goes on:

“Google is going to have a problem because Google is only known for search…”

Well, I guess she should know. While she won’t admit it, people still tend to think of Yahoo as search as well. And Yahoo spent so much time trying to diversify that if they don’t think about Yahoo as search these days… they just think about Yahoo as being a confused jumble of sites that don’t do much. In the meantime, despite her claims, it does appear that Google has expanded well beyond search. AdSense (which is about other content sites) makes them lots of money. Pretty much everyone I know uses Gmail, Google Calendar and Google Maps rather than the Yahoo equivalents. I’m trying to think of what other areas Yahoo has expanded into that have been successful for the company.

But the funniest statement of all:

“Google has to grow a company the size of Yahoo every year to be interesting.”

I don’t think that anyone judges Google based on how “interesting” they are. Is that the metric they use at Yahoo? Does that explain the $47 million she apparently made last year? Because she made Yahoo so interesting? Well, I guess it should be admitted that Yahoo is the company that is trying (and so far, failing) to patent “interestingness,” so perhaps she’s just urging Google to be interesting for the sake of a future patent fight? In the meantime, I would assume that, at Google, they judge the company based on how much money it makes — and on that front, it appears to be cleaning Yahoo’s clock on a pretty regular basis.

As for “growing a company the size of Yahoo every year,” that becomes easier and easier as Yahoo gets smaller and smaller.

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It looks like the folks in DC are looking for all sorts of ways to further regulate companies in Silicon Valley. Senator Chuck Schumer is pushing for the FTC to regulate how Facebook handles privacy issues, which has some legal experts scratching their heads noting that the FTC doesn’t have the authority to do so:

I have to say, in the words of my boyhood hero John McEnroe, “You cannot be serious.” Schumer is asking the FTC to do his job for him. Surely Schumer — who has been in Congress since 1991 and in the Senate since 1999 — knows that the FTC’s authority to regulate online privacy is on very shaky and politically charged ground. At a minimum, he knows that Congress has failed to act, despite calls for federal online privacy legislation for over a decade.

Except… well… that may be changing. A few folks have sent over noting that “a little-known provision” in the currently debated financial overhaul bill would suddenly grant the FTC more power to regulate the internet. This comes just a few months after someone in the Commerce Department suggested that it was time for the current administration to “rescind” its “leave the internet alone” regulatory stance — specifically including taking an active role when it comes to internet privacy (along with cybersecurity and copyright…).

If this is indeed happening, then it certainly shouldn’t be a part of the financial regulatory reform bill, but should stand to be debated alone, so that there’s an actual discussion of what’s happening and why, and people can weigh in. As a part of a larger bill, there will likely be little if any public debate on a potentially massive policy change. Right now, what’s being said is a bit scary. The article quotes FTC chair Jon Leibowitz saying:

“If we had a deterrent, a bigger stick to fine malefactors, that would be helpful.”

But there are pretty big questions about who should be considered malefactors and who should be allowed to fine them and for what. In the past, Leibowitz has sounded reasonable, but he’s also been a bit quick to ask for additional regulatory powers in the past as well. And, for those of you worried about the question of getting power to regulate the internet over copyright, it is worth mentioning that Liebowitz worked at the MPAA for four years.

No matter what, this would be a pretty massive change in policy, and as such, it deserves a full and open debate — something that seems increasingly rare when it comes to regulating the internet these days.

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We’re currently in the midst of a CSS Zen Garden type excerise on our family of Q&A websites, which I affectionately refer to as “the Trilogy”:

Server Fault
Super User
Stack Overflow
Meta Stack Overflow

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Over in the UK, on Thursday evening, there was a music industry panel discussion that involved a massive number of panelists (ten — which seems a bit too many) covering a wide variety of viewpoints from the music industry. Mostly they came from the traditional parts of the music industry, but the interesting participant was Peter Sunde Kolmisoppi, aka brokep, from The Pirate Bay (and now Flattr), taking part in the discussion with a group of folks who regularly call him all sorts of unfriendly things. Stuart Dredge, over at Music Ally, ran a nice live blog of the conversation, which mostly went down about as you would expect. Dredge noted that it was mostly an “industry” audience, and he worried that “there’s a bit of a kick-the-Pirate-Bay mood bubbling” in the audience.

Thankfully, it doesn’t look like things got that far. Mostly it was the typical back and forth. Industry folks whining that they can’t compete with The Pirate Bay… even as they were talking about the variety of ways they were competing with The Pirate Bay. Basically, what becomes clear is they would prefer competition that they control, rather than competition that consumers drive. Tragically, innovation doesn’t work that way.

Peter made the point that a lot of people were confusing the music industry with the recording industry, and mocked them a bit for not actually talking about culture or music:

“Most of the things we’re talking about today are about the record industry, not about the music industry. Everyone is talking about percentages… nobody is talking about music. It sounds like most people here could be selling diapers instead!”

While technically true, the discussion was about the business of music, so I think it’s fair to be discussing some numbers and the business angle. But there is a larger point to be made here. With studies showing that more music is being created, the complaints about the “death” of the industry are clearly misplaced. The real complaints from the industry types are that they aren’t able to make money off of it any more — but that doesn’t mean the music industry is in trouble at all. Instead, it’s thriving. In fact, Peter also made that point:

It’s not a right for the record industry to make a profit…. Technology has come that has made most of the record industry less valuable. We need to just move on, it’s sort of an evolution… It might not be good for people working in the record industry, but the music industry is better than ever.”

The industry folks on the panel still seem to be living in a state of denial at times, talking about how they should milk the 40 and 50 year olds who are still buying CDs, rather than really understanding the changing marketplace. My favorite laughable quote came from Guy Moot, of EMI Publishing, who said:

“The joy of ownership is a very different thing from the joy of a digital download or stream…”

Sure, it is, but the record labels have worked very, very, very hard to make it clear to people that they don’t get to “own” anything. How many times have been told “you just get a license.” If we really got to own stuff, there wouldn’t be so many complaints.

There were so many people taking part, it’s difficult to cover them all. Will Page (whose interview we recently posted) made some good points, and Jeremy Silver, from the Featured Artist Coalition (who’s also a very interesting guy to chat with about these issues) comes off as being quite sensible in saying that file sharing of unauthorized works is here and not going away — and the industry should take some of the blame for sitting on the CD cash cow and never innovating. Rather than complaining about it, it’s time to look forward.

On that note, it seemed like the most reasonable speaker may have been David Stopps, who spoke from the perspective of an artist’s manager. He noted that the it’s absolutely possible to “compete with free,” talked up the importance of touring to make money and using the music to boost those revenues and also played down the “demise” of the record labels, by noting that “they still have the back catalogue” to milk for a long time and that their job has become a lot easier thanks to technology:

He says A&R is becoming easier for labels, because sites like Hype Machine and We Are Hunted are where A&R guys are looking to see “who’s listening to what music”. It’s less about “taking a punt” than in the old days. “Artists are building up fanbases themselves… and that can be monitored.”

He also brings up the band Metric as an example of a band that has “gone all the way” without a record deal, noting that they turned down a variety of major label deals with massive advances to “do it on their own” and that it’s working:

“They’re doing a fantastic job, they use Topspin to sell their music, and that seems to be very successful for them. We’re gonna see more of that…”

Along those lines, he also notes that The Pirate Bay can be a really great way for people to discover new music, and monetize them elsewhere, pointing to Imogen Heap, who discovered tons of people in Indonesia downloading her music in an unauthorized manner… but when she went there, she was able to sell out a 4,500 seat arena, making “a lot of money.”

Finally, he also knocks BPI and others in the industry for still thinking that DRM is a reasonable solution — pointing out that it’s totally anti-consumer:

“The problem is, nobody really asked the consumer,” he says, about attempts to put DRM on CDs. “They absolutely hated it. You put the CD into the computer and it wouldn’t play… In the future, we’ve got to bring the consumers into the business model. In fact, they already are part of the business model.”

Geoff Taylor, the head of BPI (basically the UK’s RIAA) comes off as about what you’d expect. He trashes The Pirate Bay repeatedly, claims that it’s “destroying national cultures” (with no proof, of course) and says that there needs to be “disincentives” to dealing with unauthorized file sharing.

It’s the same story as usual: they’re so focused on negative incentives for people doing stuff they don’t like, they never seem to care about creating positive incentives for those they should be targeting. That’s BPI’s problem. Not The Pirate Bay.

Anyway… given the participants, it was about what you would expect, and didn’t seem to get quite as nasty as some feared before the event. I doubt anyone’s mind was changed about anything, but it still sounded like a pretty good discussion.

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Google’s newest browser test release enables geolocation, which can allow a Web site to find out where in the physical world you are.

Originally posted at Deep Tech

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You may recall that, at the end of March, the White House’s “IP Czar” (technical “Intellectual Property Enforcement Coordinator”), Victoria Espinel, had asked for public comments on how best to enforce intellectual property issues. While we were quite concerned that the tone of the request for comments presupposed a lot of questionable things (i.e., more enforcement is automatically “better”), we encouraged people to send in their thoughts. I shared my letter and also pointed people to the fantastic letter sent by the NetCoalition and CCIA — as well as the ridiculous letter sent by the RIAA, MPAA and the Screen Actors guild.

JJ sends over the news that the White House has now made all of the public comments available. There are a lot. I went through the list and opened a bunch at random (as well as picking out some names of people or companies I recognized to see what they had to say). It seems like plenty of people on both sides of the equation weighed in — often in response to calls from organizations. On the “enforce copyright more!” side, there were a bunch of photographers and independent musicians, who showed up via the Copyright Alliance or the Association of Independent Musicians. On the “be careful” side, there were a bunch of people who clearly used Public Knowledge’s example letter (though, many added to it, or explained why they wanted to reinforce what PK said).

I’m not really sure how helpful those letters really were on either side, as they didn’t add too much to the conversation. The folks responding to the call from the Copyright Alliance didn’t really answer any of the questions from Espinel. They often just said “my business is in trouble, you must help me!” which isn’t very convincing. At times, they went to extreme lengths, like this guy, who tried to convince Espinel that having his photographs copied was the same thing as if he had stolen her car. Very convincing. On the flip side, while I like the folks at Public Knowledge, and perhaps there’s value in numbers of people saying the same thing, I think it would have been nicer if more people wrote their own thoughts out.

Anyway, here were a few that caught my eye, good or bad (all links to filings are pdf files):

• The filing from the Center for Democracy and Technology was really fantastic. Almost on the level of the NetCoalition filing. I like how it goes through the long list of technologies that were targeted by the entertainment industry as being potential destroyers of their industry which had to be stopped — including the VCR, the mp3 player, the DVR, search engines and more.
• The filing from the American Library Association is also quite good. It points out that there’s a big difference between “costs to private companies” and “costs to the public good.” And, as for the entertainment industry’s studies on “losses”:
  

  
  The fundamental flaw of these studies is that they beg the question of whether a particular private business interest is entitled to government protection for perpetual, stable profits regardless of changing business conditions. The mere fact of declining profits in one business model does not constitute a cognizable harm that government must step in to remedy. Government intervention in any area has costs for taxpayers, and in this area there are added costs to the public when IP policy becomes further slanted in favor of rightsholders and against public access and use.
  

• I was really disappointed in the filing from Beggars Group, the UK-based record label. While I fully expected most record labels who filed to support stronger enforcement, Beggars has actually shown itself to be more reasonable than others in embracing modern technology — and it’s filing is strange in that it totally attacks the DMCA’s safe harbors as being totally unfair even as it admits that those safe harbors have created huge new businesses that have created massive consumer value. So, I’m at a loss. Is Beggars really suggesting that because others figured out smart businesses, the government should now punish them in favor of Beggars?
• eBay’s filing is basically a big ad for eBay.
• The Mississippi Attorney General, Jim Hood’s filing is so filled with fear mongering as to be laughable. It’s opening sentence — and I am not kidding — compares copyright infringement to the death of a child. It goes on to cite the widely debunked studies that claim copyright infringement supports terrorists and organized crime. This isn’t so much a response to Espinel’s questions as it is a (fictional) horror story to scare little children.
• There’s an awful lot in Intel’s filing — some good and some bad — but I was pretty shocked to see the statement that Intel believes “another threat to the appropriate protection of famous marks in the U.S. is the expansion of parody as a defense….” Really? I recognize that Intel is a pretty big trademark bully, but it’s really claiming that parody as a defense is going too far?
• Google’s filing is pretty good, though I felt it could have been stronger on a few points. Still, it reinforces the point that business models are adapting to the changing technology marketplace, and that we should be quite careful that any enforcement program does not harm freedom of speech or expression.
• Perhaps the input from Ray Charles’ estate isn’t too surprising — in that it talks up the importance of all the royalties they keep collecting for Charles’ music — but given the fact that Charles himself clearly infringed widely on others copyrights to create the very origins of soul music, and talked up the value of “copying” other musicians, it’s pretty disappointing and seems to go against his legacy.
• I have to admit, I was a bit confused as to why the Military Order of Foreign Wars is such a big supporter of stronger IP enforcement.
• Of course, not everyone in the military thinks that way. I thought Steve Cupp’s filing (from a Navy email address) showed that there is quite a lot of concern that copyright law has gone way too far, and is now solely being pushed by lobbyists designed to prop up certain businesses.
• There were some odd ones, like the filing from Om Records that basically says “we don’t know how to compete, please make ISPs pay us.”
• It was nice to see Oxfam America’s filing focus on why the US should stop trying to force every other country to copy US intellectual property laws, noting that (contrary to what you’ll hear some lobbyists say) the TRIPs agreement says that members should be “free to determine the appropriate method” of implementing the agreement.
• I thought Bill Waggoner’s filing was nice in that he called out that not all infringement is equal, and lumping safety issues of counterfeit medicines in with people file sharing video games is pretty ridiculous and unhelpful in crafting reasonable policy.

Anyway, there were a lot more obviously, and beyond some of the organization names, I was basically picking at random. But it might be fun to “crowdsource” reviewing some of the filings. If you have a chance take a look at the list and see if you find any interesting filings, and let us know about them in the comments.

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We were among those amazed back in February, when an Italian court ruled that three Google execs were criminally liable for a video posted on Google Video, and were sentenced to six months suspended sentences. The video in question involved some kids taunting a mentally challenged boy and throwing a tissue box at him. Within hours of Google being alerted to the video, it was taken down. Part of the debate focused on whether or not Google should have known about problems with the video or whether or not Google had actually been informed earlier — but the only evidence that seemed to have been presented was that the comments on the video complained about the content. But it wasn’t clear that anyone at Google had read the comments. Still, when the decision came out, it was just the decision — not the full ruling by the judge, leading to some detailed legal guesses for the judge’s reasoning.

However, it looks like the ruling has finally come out, and one Italian legal expert, after reading through it in detail, suggests the ruling was based on a pretty big legal interpretation error by the judge. The details are a bit complex, but basically, it seems the judge may have combined two separate parts of a law that were disconnected (and, the key part of the law wasn’t even brought up in the case itself) to suggest that Google’s big mistake was in not prominently telling users that they should not upload videos without the permission of everyone in the video. That information was in the Google Video’s terms of service, but the judge felt that wasn’t enough.

The problem is that the law doesn’t actually say that Google had to make that information clear to users — and, even if Google didn’t satisfy that part of the law, not only was it not mentioned during the trial at all, it’s also not connected to the part of the law Google was actually charged under:

The trouble with the ruling, said [Elvira] Berlingieri, is that Section 13 of the law was not mentioned in the case against the Google trio at all. One charge laid against them by prosecutors was to do with defamation, and that failed. The other was to do with privacy but that was based on a supposed data-processing violation of Section 167 of the law.

Section 167 of the Act says that anyone who breaches particular Sections of the Act with a view to gain or with intent to cause harm shall be punished by imprisonment of between six and 24 months. The Sections to which it refers, though, do not include Section 13.

“If you put together Section 13 and Section 167, that is how you get a sentence of six months,” she said. “The problem is that Section 167 does not talk about Section 13. In the charge written by the prosecutors, Article 13 is never mentioned.”

This definitely seems like good news for Google in its planned appeal.

Of course, even outside of the legal nuances of this, just from a common sense standpoint, this ruling is incredibly troubling. It’s difficult to see how anyone (outside of those with logic deficiencies) could defend the ruling. The video itself was actually helpful in punishing the kids responsible. If Google had actually stopped the video from being uploaded, they would have gotten away with the bullying. On top of that, making the sanctions criminal against individuals seems way over the top, especially for individuals who had absolutely no knowledge of the video in question whatsoever. The whole thing seems ridiculous on any level.

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There are people out there who believe that just talking about the fact that infringing content is out there is infringing itself, but that seems like a plainly ridiculous standard for judging infringing content. Yet, we see cases like this all the time. Recently, there was Twitter taking down a tweet for merely linking to a blog post that talked about a leaked album (but which didn’t link to the leak), and now TorrentFreak points out that the site RLSLOG has been totally taken offline (again) after Universal Music sent a takedown request. The only problem? RLSLOG doesn’t actually host any content or infringe on any copyrights. It’s a news site that talks about infringing content that’s available, but is that infringing itself? It’s difficult to see how anyone would properly judge that to be the case, but it didn’t stop the site’s host from taking them offline thanks to Universal Music’s legal threats.

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