Techdirt. Stories filed under "downloading"

Law Professor James Grimmelmann Explains How He Probably Violated The Same Laws As Aaron Swartz

Mike Masnick — Thu, 17 Jan 2013 12:12:00 PST

We've been discussing the ridiculousness of the prosecution against Aaron Swartz, including the fact that if a federal prosecutor decides to take you down, it's not at all difficult to find something they can try to pin on you, especially when it comes to "computer" crimes. Law professor James Grimmelmann explains how it's quite possible that prosecutors could go after him under the same laws as it went after Swartz. He notes that he used to run the (excellent) blog LawMeme (which we used to link to frequently). After it died, he wanted to preserve many of the articles, and so he wrote a script to pull the articles off of the Internet Archive. While it all depends on your interpretation, he shows how a prosecutor could make the argument that he violated the Internet Arvchive's terms of service -- and that some of the decisions he made in writing the script could be taken out of context to be used against him.

And so I became a bulk downloader. I wrote a Perl script: a simple, 70-line program that exhaustively went through the Wayback Machine, looking for a copy of each LawMeme article. Just like Aaron's script, mine “discovered the URLs” of articles and then downloaded them. And just to show how mainstream this is, I'll add that I built my script around an elementary one that Paul Ohm published in “Computer Programming and the Law: A New Research Agenda,” his manifesto for why more law professors should write code. Paul's script downloaded and analyzed the comment counts on posts from the popular legal blog The Volokh Conspiracy.

[....] take the Internet Archive's terms of service. By using the site, I supposedly promised not "to copy offsite any part of the Collections without written permission." The site's FAQ qualifies this statement a bit, adding, "However, you may use the Internet Archive Wayback Machine to locate and access archived versions of a site to which you own the rights." Again, I was confident that this covered me. But confidence is not certainty. I assumed that no one would care to press the question. After Aaron, is that such a safe assumption?

I can't imagine that the Internet Archive would have a problem with what I did. Recreating lost websites for the sake of the public and posterity is completely consistent with Brewster Kahle's expansive humanist vision of digital archiving. But JSTOR quickly made its peace with Aaron, and that didn't save him. Would Brewster's blessing save me from the wrath of the feds?

As for how to take decisions out of context, how about these:

Indeed, my script waited a second between each download. I didn't want to put too much of a load on the Archive's servers. But a cyber-Javert could describe it as an attempt to evade detection. Then, to get the webpages to display right in the LawMeme archive, I wrote another script to delete the bits of HTML added by the Internet Archive to the pages in its archive. Was that an effort to hide my tracks?

And this, of course, is the crux of the problem. The laws are so broad, and written in such a way that makes so little sense, it's quite easy for a prosecutor who wants to bring someone down to figure out a way to make them look like a felon. That's a very dangerous system. As Grimmelmann notes, the problem won't be solved by a simple fix, but a massive overhaul.

Aaron's Law is a start, but the problems with our computer crime laws, and with criminal law in general, run much, much deeper. The Department of Justice thinks millions of parents who made Facebook accounts for their children are federal criminals. Read the majority opinion in United States v. Nosal and ask yourself whether you've fudged your age on a dating site, or let someone else use your account, or used a workplace computer to check the baseball scores. Judge Kozinski noted, skeptically, "The government assures us that, whatever the scope of the CFAA, it won't prosecute minor violations." Tell that to Aaron's family.

Painted in the worst light, our laws make it so that any of us can be made out to be felons. Off the top of my head, I can't think of how I, too, might be a felon, but I'm sure given some time I could cook up a story for myself as well. And so could pretty much any of you. When you reach such a point, we're no longer dealing with a sensible state and "the rule of law," but a world in which arbitrariness rules, and where a prosecutor with a chip on his or her shoulder can take down almost anyone.

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Embedding And Linking Deemed Infringing In The Netherlands; Downloading... Not So Much

Mike Masnick — Thu, 27 Dec 2012 10:55:00 PST

Here are two copyright stories coming out of the Netherlands, one good and one bad. The first is that the Dutch government has rejected an effort to make downloading copyrighted works for personal use infringement. There is, of course, an existing "you must be a criminal" tax on blank media there, which is part of the reason why such downloads are considered okay. Of course, now we only have to wonder how long it will be until the Netherlands shows up on the US's Special 301 report for "naughty" countries who don't follow Hollywood's extreme maximalist positions.

Of course, the entertainment industry may be much happier about a different copyright issue in the Netherlands. A court ruling in The Hague found that "embedding or linking to radio-streams without a license constitutes a violation of copyright." This is particularly crazy because it includes linking to a station's own stream. Yes, you read that right. This isn't talking about pointing to infringing streams, but to legitimate ones. And the court still found it to be infringing.

‘Nederland.fm’ embeds radio-streams from other (official) radio websites, while ‘Op.fm’ offers hyperlinks to those streams. Buma/Stemra argued that the websites enable users to listen to the music offered on the streams, and that this should be constituted as a ‘publication’ of the music to the public. The court followed this reasoning, primarily based on the fact that ‘Nederland.nl’ and ‘Op.nl’ not only offer streams or links, but they capture the consumer on their page, by playing the music within their own environment and because this environment, including ads, stays visible after clicking the links and buttons of radio stations.

That makes no sense at all. Just because someone makes money in some other manner doesn't mean they automatically owe money to someone else when they were using their legal streams. Unfortunately, we keep seeing wacky rulings like this around the globe that just muddy the picture when it comes to creating sensible copyright policies.

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US Government Ups Felony Count In JSTOR/Aaron Swartz Case From Four To Thirteen

Tim Cushing — Tue, 18 Sep 2012 07:24:14 PDT

Not much has been said about the Aaron Swartz case over the past year as the wheels of "justice" slowly grind their way to an eventual court date. Swartz, the executive director of Demand Progress, was charged with violating the Computer Fraud and Abuse Act, a catch-all designation for "computer activity the US government doesn't like."

Swartz had accessed MIT's computer network to download a large number of files from JSTOR, a non-profit that hosts academic journal articles. US prosecutors claimed he "stole" several thousand files, but considering MIT offered this access for free on campus (and the files being digital), it's pretty tough to square his massive downloading with any idea of "theft."

Not only that, but JSTOR was not the entity pressing charges. It had stopped the downloading and secured the "stolen" content, along with receiving assurances from Swartz that the files would not be distributed. Despite this, the feds felt compelled to arrest Swartz and charge him with four felony counts (one each for Wire Fraud, Computer Fraud, Theft of Information from a Computer and Recklessly Damaging a Computer). At this point, Swartz was looking at a possible 35-year sentence and over $1,000,000 in fines.

Whoever's pushing this case must really dislike Swartz and/or his activities. A "Superseding Indictment" (pdf) has been filed, raising the number of felony counts from four to thirteen. Seth Finkelstein at Infothought has a brief rundown of the new charges (h/t to Nate Hoffelder for the link):

There are now 13 felony counts in the new indictment, derived from claims of multiple instances of breaking those four laws. In specific:

Wire Fraud - 2 counts
Computer Fraud - 5 counts
Unlawfully Obtaining Information from a Protected Computer - 5 counts
Recklessly Damaging a Protected Computer - 1 count

It's beyond my pay grade to figure out how many years in prison that all could be, when taking into account the complexities of sentencing law. Let's leave it at a large scary number. Enough to ruin someone's life.

The new filing basically realleges all the original charges but ups the felony count by providing specific dates for each action, turning each marked date into its own felony charge. The allegations refer to Swartz's "repeated" actions as spanning several months, but the feds have pulled some arbitrary dates into the mix to add years and dollars onto his possible sentence. And, again, we have to ask: for what?

JSTOR only showed up because it was subpoenaed and if anyone's the "victim" here, it would be JSTOR. MIT has remained silent on the whole issue. So, either someone's got a deeper interest in this case than they're willing to admit publicly, or the feds found someone with enough "hacking" activity under their belt that they feel comfortable turning the defendant into an "example." Or perhaps this is a belated payback for his thorough gaming of the PACER system during a "free trial" period, something the feds briefly investigated him for back in 2009. It went nowhere as the documents involved were public records, but it had to gall them a bit that he managed to download nearly 20 million pages of text, about 20% of the entire database, before being stopped. (The government likes to collect 8 cents a page for PACER documents, meaning Swartz's stunt "cost" it nearly $1.6 million, assuming you have no idea how to properly measure "costs.")

So, how do the new charges stack up in terms of a sentence? Tough to say. Each of the charges carries the possibility of a fine and imprisonment of up to 10-20 years per felony. Depending on how many of the counts Swartz is found guilty of, the sentence could conceivably total 50+ years and fine in the area of $4 million. All this over publicly accessed research documents that JSTOR doesn't even feel the need to pursue further than it did.

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Officials In The Philippines Want To Criminalize Downloading

Mike Masnick — Tue, 13 Sep 2011 10:52:00 PDT

We're seeing crazier and crazier ideas for copyright laws lately. First, we had politicians in Brazil looking to criminalize ripping a CD and, now, Richard points us to the news that there's an effort underway in the Philippines to make direct downloading of unauthorized works a criminal offense. Apparently, this is being driven by a government agency, in association with an industry "anti-piracy" group (of course). I'm curious if even our usual critics can defend why direct downloading should be a criminal issue, rather than a civil issue? Do you really think putting people in jail for listening to music will get more people to buy your product?

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Silly Lawsuit Filed Against CBS Because Subsidiary CNET Offered Limewire For Download

Mike Masnick — Wed, 4 May 2011 16:06:00 PDT

Late last year, a guy named Alki David, who's known for his publicity stunts, put out a silly video attacking CBS, who was suing a company he ran. The video is long, and not very entertaining, other than demonstrating David's ego. The theory posited by David is so bizarre that we didn't post about the video when it came out. Basically, CBS had sued his company, FilmOn, which let people pay to access his retransmission of TV channels online. It's pretty easy to see why CBS and others believe that a service like FilmOn is infringing. However, David's theory was so out there that it was laughable: he claims CBS is suing him because CBS profits from piracy and doesn't want others getting into the game and competing. No, really. You can see the video here: The logical trainwreck comes from the fact that CBS bought CNET a few years ago, and among CNET's properties is Download.com, which is probably the single most popular place for companies to offer up their software products for download. It's been that way for years. One of the many, many, many software products available to download from Download.com was Limewire, which (as you know) was recently found guilty of facilitating copyright infringement. David's argument is that CBS makes a ton of money from this setup. It doesn't. CBS may make a little bit of money from this, but it's not even a rounding error on CBS's bottom line. This is so far removed from CBS's business it's hard to do more than laugh at the accusations.

However, David has now taken it to another level, and together with some hip hop and R&B artists, is suing CBS for copyright infringement over this same issue. It seems pretty clear that this is a nuisance suit from David, who is upset about the lawsuits against his company -- which seem to have a lot stronger basis in law. I can't see how CBS has liability here. We're not even talking about standard third party liability here. CBS is a fourth or fifth party here, at best. The actual infringement comes from end users. Limewire is the tool they use. CBS's CNET's Download.com is the tool that Limewire uses. To blame CBS for that is a huge stretch. Also, unless I'm missing it, nowhere in the lawsuit filing embedded below do I see what specific copyrights of the plaintiffs CBS is accused of infringing upon...

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Is Downloading And Converting A YouTube Video To An MP3 Infringement?

Mike Masnick — Tue, 8 Feb 2011 11:36:23 PST

There are a variety of different tools out there that let you "record" a YouTube video and turn it into an MP3, just as there are a variety of tools out there for converting Pandora streams to MP3s or converting internet radio to MP3s. Technically it's no different than "recording" something you hear off the radio, which is generally considered legal under the Audio Home Recording Act (which had plenty of bad things in it, but also included protections for people recording at home for personal use).

We may get a test of whether or not that applies to the online world, with the news that former Gnutella P2P client MP3Rocket has changed strategies and ditched its P2P offering to switch to an app that simply records YouTube videos and turns them into MP3s. The company seems to be relying on the Supreme Court's Betamax ruling, by claiming that since all it's really doing is "time shifting" the ability to listen to music streamed via YouTube, it's no different than the ruling that said it was okay to record television shows via video cassettes.

Of course, RIAA supporters and the like will quickly counter by pointing to the various lawsuits over whether or not XM's recording device was legal. Most of those lawsuits ended in settlements, so I don't think there's as strong a precedent that says that turning digital streams is infringement. However, you'd have to imagine that there's going to be one hell of a lawsuit either way.

The reality is that this is yet another case of the law not being able to keep up with technology. There simply is no intellectually honest rationale that says recording songs off the radio is legal, but recording songs off your computer is illegal. It's a weak attempt by an industry that doesn't want to deal with changing technology to put in place laws that prevent what the technology allows. Those never work.

It certainly would be nice to see the Supreme Court note that something like this really is no different than the Betamax ruling, but given the Supreme Court's various bad copyright rulings over the last few years, I have little faith that it will do so. Instead, it would likely just use a case like this to chip further away at the Betamax ruling, just as the Grokster decision did.

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US Copyright Group Willing To Reveal The Tech It Uses To Identify File Sharers... Sort Of

Mike Masnick — Tue, 22 Jun 2010 14:48:58 PDT

US Copyright Group, which is really DC-based law firm Dunlap, Grubb and Weaver, has made a lot of news recently for unleashing thousands of lawsuits on people it accuses of infringing on copyrights, in an effort not to stop infringement, but to send out "pre-settlement letters" to get people to pay up to avoid the lawsuits. Dunlap keeps insisting, despite similar efforts accusing perfectly innocent people of infringement and demanding payment, that its technology is reliable and credible. CCS Labs, a company that does work in the computer crime field, was curious about this and asked US Copyright Group for the right to review its methodology and technology.

Dave Gordon from CCS Labs contacted us to let us know that US Copyright Group has agreed to let it review its technology and methodology if CCS Labs can show that it has been hired by someone who is being sued by it. So, CCS Labs is looking for anyone who was on the receiving end of a US Copyright Group lawsuit to contact them as soon as possible:

However, the CCS LABS, requires your help! If you have received a letter from the US Copyright Group please contact the CCS LABS and formally request them to represent you as your technology experts. They will need your case number of personal contact details which will not be made public. You will also have access to the full report produced by the CCS LABS, instead of a summary disclosure report.

Why might this be important? Beyond getting a look into what US Copyright Group is actually doing in determining who it accuses of infringement, CCS Labs could potentially determine that the technology is not reliable for courtroom use:

The technology supplied will be tested for "fitness" and can receive one of three classifications NOT CERTIFIED, eDiscovery Certified, or Forensics Certified. Only Forensics Certified software may be used to provide "expert evidence" in court. If the technology receives a NOT CERTIFIED classification then the technology is not fit for any intelligence gathering use.

I have no clue if the technology and methodology used by USCG is any good, but it would be nice to have some more details on it, and also getting it tested to determine whether or not it really can be used in court. Among the questions that CCS Labs intends to look at:

1) Is the file downloaded the file that is expected?
2) Are the IPs listed providing the chunks expected or false chunks?
3) Is every action logged?
4) Is a full report produced?
5) Are problems displayed and analysed by humans later?
6) What is the user documentation like?
7) Are the users of the technology fully trained on the technology?
8) Do we have access to the developers?
9) Is the technology's confidence level known?
10) Are the results produced by the Technology repeatable?
11) Has the technology been assessed by an external auditing authority already?
12) How automated is the system?
13) What level of redundancy checking is used?
14) If hashing used, which algorithm(s) is/are used?
and many more...

I'm guessing that US Copyright Group really isn't that keen on having all these questions answered.

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Misguided Outrage At NY Times' Ethicist Over Ethics Of Downloading A Book

Mike Masnick — Fri, 9 Apr 2010 06:41:00 PDT

We recently wrote about the NY Times' ethicist, Randy Cohen, and his perceptive claim that downloading an unauthorized digital copy of a book you already own is likely illegal, but not unethical. It resulted in quite a discussion in our comments, with people taking both sides. However, an anonymous reader points us to a blog post at Mediabistro, where it appears readers sent in a whole bunch of ridiculous strawman arguments to claim that downloading such a book was clearly unethical. According to Mediabistro, not a single reader agreed with Cohen. While some commenters on the post do take the "infringement is unethical, no question" type statements to task, the blog post doesn't bother to point out the serious confusion by the complainers. Take, for example, the following:

"So, if you own the hardcover you should get the paperback for free? Different platform, right? Maybe you can use the hardcover to get into the movie version as well. That's a different platform. Maybe the audiobook as well? It's really a deeply irresponsible post. Some ethics!"

But that's missing the entire point of what Cohen said. First of all, the situation he was discussing was one where the ebooks were not even available -- so it wasn't even a question of the author losing any money. And that's the key point that Cohen is making, which seems lost on the people attacking him. Morality only really comes into play when there's a question of who wins and who loses. When you need to make such a choice, that's a moral question. If there are no losers, there's no moral question to deal with. What Cohen is pointing out -- quite accurately and ethically -- is that in a scenario in which there is no loss, but only gain, then it cannot be seen as unethical. What the person above was stating is totally different. In each of those examples there is a real loss. Something scarce is taken, and that means others can't have it. But with the ebook of a book that hasn't been released in that format, that's not even a question.

It's really a question of whether or not you should be allowed to format change the works you've purchased, and there are many reasonable arguments in favor of that -- especially in situations where there is no loss in the system.

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Keith Urban Supports Unauthorized Downloaders... Except When He Doesn't

Mike Masnick — Tue, 2 Feb 2010 17:01:10 PST

Ah, the things that happen when you sign your life away. A month or so ago singer Keith Urban won a People's Choice Award for "Favorite Male Audience." In his acceptance speech, he declared that he was so happy, even for the folks who downloaded his music in an unauthorized manner:

"I don't even care if you download it illegally, give it to your friends. I really don't care. I love the people to hear the music and come out and see us play live."

Apparently, though, he no longer means it. He's now he meant something entirely different:

"What I said came out nothing like I meant," explained Urban. "I was referring to the old days when you'd buy a record, do a cassette tape and give it to your girlfriend, and then maybe she likes it and becomes a fan."

Of course, if that was the case, why did he say "download it illegally" and why did he say -- twice -- that he doesn't care about that. If he was talking about people buying it and sharing it with their friends, why not just say that? So why did he misspeak:

"I've never done an awards show where they seem to let you talk infinitely," he said. "I was waiting for the 'wrap' sign to come up, and it never came up."

Looking at the video, he expresses his love for people who download his music about 20 seconds into the acceptance speech. Before he even thanks his wife. I don't think you can chalk that up to rambling because he had too much time.

All in all, it sounds like those who he signed his life away to at EMI/Capitol Records probably sat him down and had a chat.

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Wait, I Thought Piracy Had Killed Any Chance Of Zombieland 2?

Mike Masnick — Fri, 4 Dec 2009 09:00:00 PST

Last month, we wrote about Zombieland director Rhett Reese, complaining on Twitter that the fact that his movie was a top unauthorized download would make it that much more unlikely that there would ever be a sequel. Others picked up that claim and ran with it, as if this was proof that piracy was harming the movie business. The whole thing seemed curious to us, since the movie has been quite successful at the box office, and has made a ton of money. Given that, who cares how much it's pirated. If it can make a bunch of money, of course it's ripe for a sequel.

And, guess what? Despite all the doom and gloom about how Sony would never make a sequel, Variety is reporting (you guessed it!) that Sony is about to ink a sequel for Zombieland, which will be done in 3D. Shocking. Even though the movie was pirated so much, the studio still wants to make a sequel? Could it be that there really are some people who recognize that how much a movie is pirated doesn't really matter if the movie can still make a ton of cash?

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Zombieland Director Goes After Fans, Doesn't Understand Popularity

Mike Masnick — Wed, 11 Nov 2009 15:37:00 PST

Charles Vestal alerts us to the news that Zombieland writer/director Rhett Reese has apparently be using Twitter to shame people who were mentioning that they were watching unauthorized copies of Zombieland at home, declaring to each one: "You realize we do what we do for money, right? Same as you." This comes soon after we highlighted some directors and moviemakers have found success by embracing those who were downloading their movie, recognizing that it was leading to more sales.

And, in fact, at least some of the people that Reese called out complained that they had actually seen the film multiple times in the theater and planning to buy the official DVD once it came out as well. In other words, the reason the movie is downloaded so much is because people like it, and yes, they still are supporting the moviemakers.

So, what made Reese lash out at these fans? You guessed it. He claimed he had just watched the 60 Minutes episode on movie piracy -- the one that we debunked for being factually incorrect, and it resulted in him getting angry at these fans, without thinking through the fact that the download might not be a substitute. But, even after the fans told him they had seen the film multiple times in the theaters, he's complaining that this decreases the chances of a sequel getting made. Given the massive popularity of the film -- both in the theater and online -- that seems highly unlikely. As we've seen before, the popularity of a movie in unauthorized downloads closely correlates with its box office take in many instances. It's rarely a sign of "lost revenue," and quite often a good indicator of actual revenue. In fact, the details show that Zombieland has done amazingly well, already earning back much more than it cost. Reese has a strong and loyal fanbase who want to support him and a very successful movie on his hands. Rather than attacking them, he should look for ways to embrace them and give them more real reasons to buy.

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US Gov't Briefing For All Employees: All Music Downloads Are Stolen, Risky

Mike Masnick — Thu, 27 Aug 2009 07:33:00 PDT

A bunch of folks have sent over a post on Slashdot detailing how a mandatory US gov't briefing on "information security" uses incredibly hyperbolic and inaccurate information, including the idea that all music downloads are theft and insecure. You can see the (flash-heavy) video briefing. The actual part with the music downloads is pretty far into the presentation (you can jump forward through the chapters), when it hits an interactive bit where you get to go through "real-life scenarios" of "threats." In the bottom left corner, there's a scenario involving a colleague who says he's found a "cool site" from which you can "download music" and asks you how do you respond: The choices?

I'd rather download the music from home -- email me the link
Is it safe to download?
Since we're on our lunch hour, I see no harm. Here's my thumb drive!
That's stealing.

Choices one and three seem obviously wrong, but choice two actually does seem like the most relevant. After all, the "cool site" in question could be any number of "cool sites" that offer up legal free music, like Jamendo or CCMixter. But what happens if you select the second choice and ask if it's safe to download? You're told no, that's wrong: And then are scolded, saying that it's illegal and prohibited, followed up by another lecture about how not only is it illegal and prohibited, but unethical and "may result in criminal" liability. Someone should tell the folks at that cool Jamendo site.

Now, to be fair, it's rather obvious that the briefing is designed to keep gov't employees from using file sharing programs and potentially exposing confidential gov't documents via file sharing. And that's reasonable. But why not be accurate and honest about it? Lying about it makes no sense.

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Musician: Any Aspiring Musician Should Download As Much Music As He Can

Mike Masnick — Mon, 10 Aug 2009 09:13:00 PDT

I recently listened to an interview with a famed old school reggae musician, who's been in the business for 42 years. The interviewer asked him what kind of music he liked to listen to himself, and the guy said: "All kinds." He explained, by saying that any serious musician should listen to as much music as possible, just to learn from it and build your own skills. So even if he doesn't play country music or symphonies, he tries to listen to them just to gain a better appreciation of them so that he can take some of that and bring it back to his own music. This is a key point in the creative process, which is often missed by those who insist that musical creation is some sort of individual effort that doesn't involve outside influence.

It's also a point highlighted by musician David Hahn, writing a response to a mother concerned about her son file sharing. She sent in a note to The Working Musician, a blog by and for working musicians, saying that her son file shares, and she wants him to stop, saying that he would feel differently if it was his music being shared. Hahn replies, however, by telling her that he feels exactly the opposite: and that her son should download as much music as possible (found via EFF):

My perspective on file-sharing is probably different that you would expect. I think that your son should download every track he can find. I mean it. Download every song out there and sift through them one by one. And not just the genres he likes -- but everything -- Creole bandeon playing, French rap, hymns, metal, classical, South African jazz, samba -- whatever he can find.... If you're son is really going to be a musician -- I mean make a real, professional try at it -- he's going to need to know every one of those genres.

He goes on to give a number of other reasons to support this position, and it makes for quite a read. Obviously, plenty of musicians disagree with this, and we're not posting this to suggest it's a representative view of musicians. But it's yet another well-argued explanation for why locking up music isn't necessarily in musicians' best interests, despite what some might tell you.

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Is Streaming Really Replacing Downloading?

Mike Masnick — Mon, 13 Jul 2009 12:20:48 PDT

Lots of attention is being paid today to an article in the Guardian about a new study claiming that illegal file sharing has collapsed in the UK and is being replaced by streaming music found on YouTube and through services like Spotify. The premise of the article is that now that kids have alternatives, they're willing to dump unauthorized file sharing and get by with streaming. While I don't doubt that it may be true in some cases, I'd take these findings with a pretty large grain of salt for a variety of reasons:

It's not based on actual usage data, but on survey data.
As more and more attention is being paid to people getting sued and fined for online file sharing activities, people are certainly going to be less willing to admit on a survey that they participate.
This is especially true in the UK, where there's been a tremendous amount of attention on the recent Digital Britain report, which claims, as a goal, to reduce illegal online file sharing activities.

That said, it wouldn't surprise me at all to find out that some users have modified their behavior due to the ease of use from online streaming platforms. When I was in the UK, I got to play around with Spotify, and I could see how many people might start using that as a replacement for file sharing much of the time (and demos of Spotify's mobile app that include syncing features when there's no internet connection make it look quite compelling for even offline music playing).

However, even if we take what the article says as proof, it seems quite likely that the industry will muck this up too. Already, we've seen that Spotify is running into licensing problems, and the company is nowhere near being able to turn a profit. And, of course, the industry is pushing for increasingly unsustainable webcasting rates. That's why YouTube and PRS still haven't come to an agreement over all that streaming music in the UK, and even as PRS has tried to lower its rates to make a deal, some of the record labels are actually demanding the rates be pushed back up.

This is how the legacy industry kills anything even remotely positive. The second that the industry sees anything that's working, it suddenly smothers it by demanding to get a bigger and bigger cut. We've seen it for years. As soon as iTunes started to be successful, the labels pushed to get a bigger and bigger cut from any sale (and to push the prices of each song higher). More recently, with the massive success of video games like Guitar Hero and Rock Band helping to promote music (and making musicians a ton of money), the labels have been demanding a bigger cut as well.

Rather than understanding how to create and foster a healthy music ecosystem, it seems that some of the major label bosses have learned how to do one thing only: squeeze each tiny baby lemon as hard as possible until it's dry, never giving it a chance to actually grow. And then they wonder how come each new revenue stream doesn't make as much money as their old way of doing business.

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Band That Told Fans To Pirate Its Tracks, Now Threatening Sites Via Web Sheriff

Mike Masnick — Thu, 15 Jan 2009 12:55:00 PST

TorrentFreak has the odd story of the band Franz Ferdinand, out of Scotland, who in the past has encouraged fans to use file sharing software to get access to various songs from the band. However, a bunch of websites were surprised to receive takedown notices from Web Sheriff concerning posts linking to tracks from Franz Ferdinand's latest album. When those sites asked for clarification, rather than actually answering any of the questions raised, Web Sheriff ratcheted up the rhetoric into legal threats. Now, clearly, it's within the legal rights of a band to encourage access to some songs, but not others, but that certainly gives fans (who are trying to promote the band) an incredibly mixed message.

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Did You Know Caching Is How Perverts Avoid Downloading?

Mike Masnick — Thu, 18 Dec 2008 10:49:01 PST

We all know that child porn is a terrible problem -- and I have absolutely no problem with severely punishing anyone involved in the production or distribution of it. However, where things get tricky is when you start punishing anyone merely for possession. Sure, if it's a situation where someone is discovered with a ton of it, that might be a different scenario (though, I would think it's more of an issue to be handled with psychiatric help, rather than criminal prosecution), but mere possession in the digital age is problematic. Anyone can send someone an email with a pornographic picture attached, and suddenly the recipient is guilty of possessing child porn through no fault of his own. Or, you could get some malware that pops up such images. There are plenty of ways that people could unwittingly have such images on their computer, and making them criminally liable could result in some pretty awful scenarios.

Apparently, the guy the Irish government put in charge of dealing with the child porn problem hasn't thought about any of this, however. He's recommending that Irish laws be strengthened to make merely viewing child porn a criminal offense, claiming that viewing it drives demand for more such images.

Of course, if you read the article linked above, it sounds even worse. I'm hoping it's because the reporter, rather than the guy who wrote the report, is clueless, but it implies that the guy's report to the government said that child porn viewers are purposely using "caching" to avoid downloading child porn to protect them from legal liability. Except... caching is downloading. The way something is cached is that it's downloaded. So, if you accidentally go to a website that includes child porn, the images are most likely cached, meaning you're now guilty of a committing a crime. Yet, the article (which claims to be repeating what's in the report) suggests that caching is actually a nefarious technique used by technologically sophisticated folks to avoid legal liability. Apparently, the fact that almost everyone uses caching when they browse wasn't explained to someone.

Fighting back against child porn is important, but technologically clueless people going on a witch hunt isn't going to help things very much.

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Record Store Owner Calls People Who Pay To Download 'Idiots'

Mike Masnick — Tue, 10 Jun 2008 17:42:00 PDT

You would think that record store owners might be the folks most upset about the changing music landscape these days. And, indeed, we've seen the "big players" like Tower Records and Warehouse Music go out of business. However, many smaller independent record shops have figured out ways to take advantage of the changing landscape to offer something different to customers. In fact, some even say the real problem was the RIAA and its failure to embrace things like file sharing. Still, it's a bit surprising to hear the owner of one NYC indie record shop, Rockit Scientist Records, slam those who buy music legally:

"Anybody who legally downloads music is an idiot! You can get it for free, why pay for it? Download it illegally, who's going to catch you? Legal or illegal, they sound the same."

While the conventional wisdom of those who insist that file sharing is "theft" would also suggest that this would mean trouble for the record store owner too -- but he seems to recognize that there's still plenty of value in the physical product: the CD or vinyl for those who want it. He figures if people are going to buy music, they might as well get something tangible out of it -- and the real problem (again) is that the record labels artificially inflated the price of CDs. If they'd kept CD prices more reasonable, perhaps things wouldn't be as bad as they are for the CD market.

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Netflix Tries An 'Unlimited' Strategy For Movie Downloads

Michael Ho — Mon, 14 Jan 2008 18:33:00 PST

Obviously trying to deflate a possible Apple announcement about movie rentals, Netflix has announced a service for unlimited movie downloads that lets its customers stream as many shows as they can watch to their PCs. Netflix has been testing this 'unlimited' offering for a few months with its new subscribers -- and it's not exactly surprising that Netflix would have to offer an all-you-can-eat plan at some point, given its existing DVD-based service plans. But Netflix is still playing with the term 'unlimited' in that the downloaded movies are streaming, so presumably, unlimited actually means something more like "up to 744 hours of video" in a month with 31 days (if you don't stop to sleep or eat).

More interestingly, though, is that this announcement places Netflix firmly in the movie downloads business. Mailing DVDs will clearly remain part of Netflix for quite some time due to the lack of broadband penetration for many US customers, but the increasing costs of shipping physical media will likely doom that business. So now the questions of how to handle the distribution of digital data will really become a mainstream issue -- and a serious business test for Netflix. Will the delivery of streaming movies be hampered by the likes of Comcast and ISPs who compete with their own movie downloading services? Does the iTunes pay-per-title model make more sense than a subscription plan? Netflix faces a number of large competitors, as well as pirating consumers. On the upside, however, there is also potential to expand internationally if Netflix doesn't rely on the USPS.

Netflix is trying a few different tactics to support downloading, but its real threats may be the copyright holders who could giveth and taketh away the shows and movies. With around 6,000 titles available for streaming from Netflix, that's only around a year of straight watching if you actually wanted to watch everything -- and didn't need to sleep.

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Downloading Is Correlated With CD Purchases

Timothy Lee — Mon, 5 Nov 2007 11:26:10 PST

There's a new study out (via Michael Geist) about the relationship between peer-to-peer downloading and CD purchases in Canada. The authors found a positive relationship between downloading and CD purchasing. That is, those who downloaded more music also tended to purchase more CDs. It's important to keep in mind that correlation does not prove causation. In particular, I suspect that much of what we're observing here is simply the fact that people have varying levels of interest in music, and those who are more interested in music are likely to both download more songs and purchase more CDs. So these results by no means prove that peer-to-peer file-sharing isn't hurting the recording industry. On the other hand, it certainly belies the recording industry's simplistic claim that no one will buy their music if it's available for free on peer-to-peer sites. Clearly, there are a lot of music fans in Canada who have access to peer-to-peer networks and choose to pay money for CDs anyway. That might be because they want the extras that come with the physical CD, because they feel good about supporting their favorite band, or because they expect the audio files on the CD to be higher quality than the music they find online. Whatever the reasons, the recording industry should be figuring out how to capitalize on them, by coming up with new products that offer perks you can't get from a peer-to-peer network.

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Canadian Recording Industry Suddenly Against Private Copying Levy It Fought So Hard For

Mike Masnick — Mon, 17 Sep 2007 07:13:00 PDT

For many years, the recording industry has been able to convince the Canadian government that it needs to add a "private copying levy" to various forms of blank media, to reimburse the industry for any "private copying" that happens on that media. This is pretty questionable for a number of reasons -- basically amounting to a government tax to support a private industry and its inability to adapt its business model to the market. At times, this private copying levy can be an astounding 70% of the cost of blank CDs. Once mp3 players (specifically the iPod) started to become popular, the recording industry fought to have the private levy attached to those players as well. In late 2003, the industry got its wish -- but with a catch. A ruling found that the devices could be taxed, but if they were, then downloading unauthorized content would be seen as legal (uploading unauthorized content would still be illegal). A judge later overturned the iPod levy, but some in the industry have kept fighting for it, and the Copyright Board of Canada supports extending the levy to iPods.

However, in a surprise move, the Canadian Recording Industry Association (basically, Canada's version of the RIAA -- controlled by American record labels, of course) has come out against extending the private copying levy to mp3 players, admitting that if the levy is extended (even though it will send millions of dollars directly into recording industry bank accounts), Canadians may (incorrectly, in the view of the CRIA) start to believe that downloading is legal. Of course, some people pointed out this loophole in the recording industry's efforts to extend the private copying levy years ago -- but it seems that it just occurred to the powers that be. Once again, it's a case for the industry to be careful what it wishes for. The private copying levy makes the industry a ton of money, but does so at the expense of anger from purchasers of any blank media. Still, that anger is probably better than the anger generated by thousands of lawsuits against file sharers based on flimsy evidence.

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