Karl's Favorite Techdirt Posts Of The Week

from the good-news-bad-news dept

Handling the "favorites of the week" post this week is Karl, one of our prolific commenter's who's known for calmly responding to questionable claims from other commenters with thorough, detailed insights and a firm grasp of the law and case law.

When Mike asked me to do a "Favorites of the Week" post, I joked that hopefully I'll be able to do "favorite posts" and not "bad news." A lot of the breaking news this week amounted to more of the same, and all bad: more third-party liability, the government lying about Wikileaks, ICE ramping up their seizures, even libraries teaching kids to hate a free press. Stuff like this is always going on, and it can't last forever, but after a while you get too saddened to think about it.

So, in 2011's spirit of optimism, I'd like start off with artists who are doing something right.

The obvious winner is Paulo Coelho, who heard that his books were banned in Iran, so he immediately offered them as a free download. This shows us that free public use of your art does not just make your work more valuable, it is also a tool to fight censorship and is a fundamental part of free expression. It's not about creating art for free; it's about keeping it from being imprisoned.

Honorable mention goes to Jono Bacon from the band Severed Fifth, who is using an open source model to "reinvent the music business." Now, the "reinventing" claim is a steaming pile of hyperbole, but it's awesome to see more artists realize that "open culture" is not their enemy. And this band is actually practicing what they preach: their album will be released under a CC-BY-SA license, which means that anyone can make money off of it... even you, faithful reader.

And I have to mention Deadmau5, who realized that a connection with his fans is more important than management relations. But it should be noted that Deadmau5 is not any sort of copyright abolitionist. In 2008, he took legal action against a Fruity Loops user called DirtyCircuit, who (unintentionally?) used uncleared Deadmau5 samples that were bundled with the software. As a result, Fruity Loops removed all melodic samples. I mostly like the Techdirt story because it led me to YouTube videos of Deadmau5 pranking his fans on Minecraft.

Of course, for every person who is doing something right, there are two who are downright clueless. They're not bad people, mind you; they just don't know what's going on.

Such was the case when Jim D'Addario defended his support of seizing music blogs. Mike responded by focusing on counterfeit goods, but, as I pointed out in the comments, that's the least worrisome thing about the seizures. Many of the seized domains had absolutely nothing whatsoever to do with counterfeit products. This shows another bad result when you conflate counterfeiting with file sharing: companies can't object to horrible file sharing laws without undercutting their support for anti-counterfeiting efforts. Assuming they're even aware of it at all, of course. I genuinely think Jim D'Addario has no idea music blogs were seized and I'm guessing a lot of the companies on the list didn't either.

As a side note: One of the "counterfeiting sites" that Jim D'Addario mentioned is Alibaba.com. When I went to that site, I found a ton of cheap, shoddy merchandise -- most of it is crap, some of it is probably "grey market," and a couple of things might be counterfeit. But ironically, the one thing I did not find is counterfeit D'Addario guitar strings.

Of course, Jim D'Addario is far from the most clueless man in the industry. As usual, that honor goes to the heads of the RIAA, who this week claimed that a .music gTLD would "enable wide scale copyright and trademark infringement." As Marcus Carab pointed out, their attitude seems to be "ALL MUSIC = crime unless it is explicitly and completely controlled by us."

But it's even more ridiculous than that. The ability to get a .music gTLD would be available only to official members of the music community, deliberately to ward off pirates and cybersquatters. Constantine Roussos, the man behind the dotMusic campaign, is also the man behind FightPiracy.org. He's certainly no friend of piracy or enemy of the recording industry, despite the RIAA's assumptions. When it took aim at Roussos, the RIAA set its phasers to "stupid."

There's one final story that I'd like to mention, to complete this compliment sandwich. That is how ACS:Law is continuing to screw the pooch in court. There's nothing particularly surprising about this, but it makes me smile. It's like a cross between Boston Legal and the Keystone Cops. Hopefully the USCG suits in Minnesota will crash and burn too.

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  1. icon
    average_joe (profile), 24 Jan 2011 @ 10:47am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Again, easy enough to get an injunction to stop this. Or, if it was transferred to someone else to get it later. Remember, it's in control of Verisign and there's no way around that. So, no, your argument makes no sense. There is simply no reason to claim that seizing the domain "preserves evidence." It does not.

    Under the statute (18 U.S.C. 2323) the property can be seized. Period. It is not necessary that it be seized for the purpose of preserving evidence. By being seized, the property is taken away from the criminals using it, and it no longer is being used to facilitate the commission of crime. Another way to describe that situation is "preserved." But you call it whatever you like.

    Curious: can you explain how dajaz1 is a direct infringer? Thanks.

    As I've mentioned, I'm not familiar with any case other than the torrent-finder.com case. I haven't followed the story of the blogs that were seized. Sorry.

    As already discussed the standards to prove accomplice liability are much higher, and Agent Reynolds came nowhere close to showing probable cause of accomplice liability in the affidavit. You can't possibly support an effort that lets you prove a lower standard of probable cause, and when it's proven that there was no violation there, allow them to change it later, can you?

    The agent purported probable cause of direct infringement, not accomplice liability. He walked through how he thought torrent-finder.com fulfilled the elements of criminal infringement under section 506. He assumed that in-line linking and framing were the same as hosting the content yourself. I believe he was wrong in that assumption. That doesn't render the seizure warrant ineffective. The technical merits are not decided in a warrant hearing. There is no lower standard of probable cause here as you suggest. Either the agent recited facts that are sufficient for probable cause, or he didn't.

    No offense, AJ, but I am greatly troubled by your assertion that preventing any sort of speech is "incidental." That's not how the First Amendment works, and it bothers me that you think it does.

    Be troubled all you want, I'm not offended in the least. Your wrong, though. The incidental effect of a statute or an action on speech is something that courts debate all the time. That's exactly how the First Amendment works.

    It's not that I have a closed mind, it's that I respect the core principles of free speech and due process. I am also not saying that it's a foregone conclusion. I admit that people like yourself seem perfectly willing to twist the basic principles of the law to support indefensible positions, and sometimes the courts agree.

    You contradict yourself. If you think the only way a court could agree that it's not unconstitutional is by twisting principles and indefensible positions, then you have already closed to your mind.

    I have trouble respecting anyone who argues otherwise, as it makes me question their moral character. You seem so focused on the specifics of the rules and the wording therein, that you seem to miss on the main principles. To you, this all seems like a game. To me, it's about people playing games to rip up rather important principles on which this country was built.

    I find it shameful.


    I actually don't care which way this turns out as I think both sides have good arguments. I think your problem is that you start with your conclusion and then work your way back. I prefer to come into these things more neutral. If my indifference disgusts you, I'm OK with that.

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