shouting loudly

Researchers Trick Copyright Cops: Laser Printers Accused of Infringement

In a study of copyright holders’ automated tools for generating DMCA takedown notices, University of Washington researchers successfully demonstrate that these automated methods are hardly sound evidence of actual infringement.

For the study, “Tracking the Trackers,” the researchers framed several innocent IP addresses, making it look like they were using BitTorrent to trade copyrighted content.

A more sophisticated investigation on the part of the copyright cops (read: trying to download the files) would have found that there was no infringement on these IP addresses. Yet these spoofs yielded actual takedown notices–threatening letters from industry lawyers to the university-as-ISP.

Several of the takedown notices identified IP addresses used by university printers.

We still know little about actual data collection methods, but the study is a real wake-up call. In the words of Ed Felten (my source), it shows that “takedowns [are] based on inconclusive evidence.” The study’s authors conclude that deliberate, malicious spoofing is not necessary to generate false positives; real people may be hit by this scattershot method of generating accusations.

This is particularly problematic considering the severe effects that sometimes result from just one takedown notice. End users may lose computing privileges and face other disciplinary problems, especially at colleges.

PS The study’s lead author, Michael Piatek, is also involved in some other really interesting projects.

Posted by Bill Herman in Uncategorized | No Comments »

Game Regulation Article at IJOC

I have a new article up on video game ratings and sales regulation at the International Journal of Communication, titled “Seeking Truth in Video Game Ratings: Content Considerations for Media Regulation.” This follows up and expands upon some of what I’ve been writing about here on Shouting Loudly (see posts here, here, and here).

For some additional notes on the background and thinking behind this article, feel free to hop on over to my solo blog, Geek Studies, where I hope to field comments and criticisms.

Posted by Jason in Uncategorized | 1 Comment »

Wash Post: “No Net Neutrality,” Hides Conflict of Interest

Art Brodsky at Public Knowledge has a great post today assailing the Washington Post’s weekend editorial opposing mandated network neutrality.

The line-by-line refutation is solid, but about halfway through, Brodsky points out that the Post has a big finger in the ISP pie. Through subsidiary Cable ONE, the Post made over $600m in 2007, much of it from the company’s 340,000 cable modem subscribers.

Sadly, the paper fails to disclose this fact in the editorial.

Posted by Bill Herman in Uncategorized | No Comments »

VZ to FCC on Cell Fees: Cut Out Legislators, Lawsuits

The mobile phone industry’s practice of ramped-up Early Termination Fees (ETF) have been a source of concern to consumers and regulators for years. Now, the Federal Communications Commission may make a Faustian bargain to limit the amount and conditions under which customers are charged.

Many consumers, consumer groups, and legislators are outraged by the practice. Cell providers claim the fees are tied to the cost of discounted cell phones, but providers’ business practices–demanding contracts even when customers provide phones, extending contracts every time customers switch service plans–suggest the real intent is to discourage customers from switching providers.

Customers have gotten together and filed a number of class action lawsuits, and members of Congress and state legislators have offered a number of bills. Faced with this legal onslaught, the providers surely came to realize they would do better dealing with an FCC that will remain friendly at least until 2009.

Thus, Verizon Wireless has proposed that the FCC usurp jurisdiction, void pending lawsuits, and force the rest of the industry to adopt something remarkably close to Verizon’s current business model: 30 day trial period, ETFs pro-rated over the course of the contract, and no contract extensions for changing one’s service plan.

Customers who’ve sued are outraged; part of the proposal is that past fees could not be refunded.

Read more at Wired News.

It’s really an AP story, and it masks the venue-shopping perniciousness with a cheery headline and opening. Prospectively, the policy change would be a positive development, but when the industry proposes it, you know something funky is about to go down.

In addition to cutting a few zillion-dollar lawsuits off at the knees, Verizon is desperate to avoid state or federal legislation on the issue. The FCC is a much friendlier venue, and any regulation passed there is likely much better for the industry. Even if the rules are the same, there’s no reason the FCC can’t just undo or modify this restriction in the future.

On a personal note, I just switched to T-Mobile, and they’re pretty ruthless with extending contracts for any service change (thus imposing ETFs for leaving, even after you’ve done your time), so I’m hoping I don’t have to change plans any time soon. But at least I got a BlackBerry Curve (MASSIVE Flash warning) out of the deal. So far, I am in LOVE with this phone.

I got it at LetsTalk.com, where I paid $49.99 for the phone, and I still get the T-Mobile $100 mail-in rebate. Even after the $35 activation, T-Mobile will have paid me $15 to take a Curve and a 2-year contract. My wife (who, of course, also had to get a new contract) also got a nice new phone.

My wife and I have wanted to get on the same carrier for awhile (she’s been with TMo for years), and we had both fulfilled our contracts when she lost her paleolithic handset last week.

It was Verizon’s demand for a contract that kept us from switching her to them and not vice versa. Having picked up an old Blackberry on eBay so that I could add the data plan, I had 2 VZ phones free and clear.

All we wanted was to activate a line for my wife with my old phone. Verizon wouldn’t do it without a 1 year contract.

Which brings me back to the story: Yeah, sure, contracts and ETFs are only necessary to pay for subsidized cell phones…

Posted by Bill Herman in Uncategorized | No Comments »

Will EFF Defend MySpace Bully Mom?

In a post on Threat Level discussing the scary legal precedent set by the Lori Drew prosecution, EFF civil liberties director Jennifer Granick says she would want to talk to Drew.

I doubt Granick supports Drew’s behavior, but the EFF is all about preserving our online freedoms, and the interpretations pushed by prosecutors to make their case are highly problematic. In a nutshell, here’s their argument:

1. It is against MySpace terms of service (ToS) to post false information, impersonate another person, or solicit personal information from a minor.

2. By breaching these ToS, Drew was engaged in unauthorized access to MySpace computers.

3. Unauthorized access to computers is a violation of federal law–the same law used against those who crack into companies’ servers to steal data, deface websites, etc.

Using the law in this way sets a terrible precedent. It would make me a felon every time I use BugMeNot.com to log into a mandatory-registration website with ToS demanding accurate information. From the post:

By way of example, Granick notes that some terms-of-use contracts prohibit users from making negative comments about the company. “If you write on a blog something disparaging about that company, are you in violation of criminal law?”

Other contracts have prohibited visitors to a website from linking to that site. …

[Andrea Matwyshyn, law professor at the University of Pennsylvania's Wharton Business School,] says she understands the impulse, but is concerned that if successfully prosecuted the case could set a bad precedent for turning breach-of-contract civil cases into criminal ones.

“Terms of use have been progressively getting more Draconian and restrictive,” she notes. “So as these provisions get drafted and users agree to them, we may find ourselves in a situation where a company that drafts one may try to leverage this kind of case law to take a breach-of-contract action and turn it into a computer-intrusion [case].”

The EFF has hardly made a commitment to defend Drew, but Granick definitely left the door open.

When asked if this is the kind of case Granick would want to litigate, she said, “If [Drew] calls me I’d be very interested in talking with her about this case. I think there is such an extreme reading here, and I do think it’s dangerously flawed for other cases. I think it’s scary and it’s wrong and something should be done about it.”

If I were Drew, I’d call right now. With a lynch mob federal prosecutor at her door, she needs all the friends she can get.

(For the record, we at ShoutingLoudly do not support adults engaging in psychologically devious online behavior with minor children. Anger at this behavior and sympathy for the victim’s family, however, need not be coextensive with willingness to disregard the dangers of bad case law.)

Posted by Bill Herman in Uncategorized | 1 Comment »

Two Net Neutrality Bills: One Antitrust, One FCC

Art Brodsky of Public Knowledge has a great post discussing the two House bills that would mandate network neutrality–or at least discourage broadband discrimination.

In the Judiciary Committee, Representatives John Conyers (D-MI) and Zoe Lofgren (D-CA) introduced HR 5994, the “Internet Freedom and Nondiscrimination Act of 2008” (pdf). It authorizes the Department of Justice, under antitrust law, to require all broadband services to be offered on neutral, nondiscriminatory terms.

In the Commerce Committee, Reps Ed Markey (D-MA) and Chip Pickering (R-MS) are pushing HR 5353, the “Internet Freedom Preservation Act of 2008.” This is a far weaker act. It gives the FCC something of a hook on which to hang an argument for net neutrality regulations, declaring that it is US policy that the internet shall remain open and neutral. But it does so under Title I authority, which (to radically oversimplify) means the FCC’s hook is not very strong.

Instead of a strong regulatory regime, the bill mandates an FCC study and report to Congress. In debate, we referred to this strategy as a “studies counterplan.” Don’t do anything, just study the problem further.

In competitive debate and in Congress, “study the problem” is not the strongest rhetorical position, and it’s an even more tepid first move (in debate, a studies counterplan is a strategy for the team that’s assigned to defend the status quo). But even a weak regulatory hook (the first part of the bill) might be enough to discourage Comcast-like monkey business.

In the political world, the bill might also serve a noble purpose as a trial balloon. If its backers (including myself) can’t even get vague statutory authority and a studies counterplan passed, maybe we need to think about another strategy.

In any case, Art is right: it would be best to pass both bills and provide both FCC and DoJ with enforcement authority. It’s an area regulated by the FCC on a day-to-day basis, but it was the DoJ that broke up Ma Bell.

Posted by Bill Herman in Uncategorized | No Comments »

Protect Your Digital Privacy at the Border

Thanks to a recent 9th Circuit ruling, US v. Arnold, customs agents at the US border are free to rummage through the data on your electronic gadgets such as cell phones and laptops.

EFF has this advice on how to preserve your digital privacy–including encryption, encrypted internet connections, and (if you live in the right state/district) contacting your elected representatives.

Posted by Bill Herman in Uncategorized | No Comments »

Court Rules “Making Available” Not Infringement

Yesterday, a federal district court ruled that merely making copyrighted works available online does not constitute infringement.

The case, Atlantic v. Howell, is yet another battle in the RIAA’s legal war on music traders. Here is the heart of EFF’s summary of yesterday’s ruling:

In its order, the court delivers the most decisive rejection yet of the recording industry’s “making available” theory of infringement (i.e., if someone could have downloaded it from you, you’ve violated copyright, even if no one ever did). Citing to the recent ruling in London-Sire v. Doe 1, the court concludes that “[t]he general rule, supported by the great weight of authority, is that infringement of the distribution right requires an actual dissemination of either copies or phonorecords.” The court goes on to conclude that downloads by the recording industry’s own investigator, MediaSentry, are not enough to establish distribution, at least based on the facts of this case (Mr. Howell maintains that, unbeknowst to him, the Kazaa software was sharing his entire hard drive). Finally, the court also suggests that P2P file-sharing may not implicate the distribution right at all, reasoning that what is really going on is a series of reproductions.

The defendants, Mr. and Mrs. Howell, are currently without counsel (as someone who grew up watching Gilligan’s Island reruns, I find this ironic), but the EFF are trying to help them find a lawyer.

The next step is likely a bench trial–neither side wanted a jury trial. Until last October, I would have thought this to be a mistake on the Howells’ part; surely a jury of one’s peers would be more sympathetic to the average person than most federal judges. But the Howells probably know that a jury in a similar case handed Jammie Thomas a bill for $222,000, a substantial rebuttal to the assumption that the jury would feel sympathy or apply modest penalties.

Posted by Bill Herman in Uncategorized | No Comments »

The Piracy Tax: Why Stop with Music?

Reihan Salam has an article up at Slate now on a scheme proposed by Warner Music Group to “tax” internet subscribers $5 each, right on the monthly ISP bill, to pay for unlimited music downloading privileges/forgiveness. Salam recognizes that some characterize this as “the music industry’s extortion scheme,” but suggests that “it’s not as horrible as it sounds.”

As Michael Arrington of TechCrunch argues, the inevitable downside to such an arrangement is likely that it would put the music industry into an even more powerful position to fix prices—why settle on a $5 “blanket licensing agreement” when that could be $7.50? Moreover, why should those who don’t buy or download music subsidize others’ media consumption habits?

Nevertheless, Salam reasons that “something like the music tax simply has to happen” because “piracy can’t be stopped”; it’s just too tempting, too much easier than going out of your way to pay for music. But a system that could “eliminate middlemen” would put more money in artists’ pockets than the current system, which makes piracy too easy to resist.

Two major forms of this proposed to date—Warner’s blanket licensing agreement and Apple’s recent suggestion for “all-you-can-eat iTunes”—still serve corporate interests better than consumers’. Salam suggests, with apologies to libertarians, that a superior alternative would be a government-mandated music tax (presumably like the blank media levy in Canada).

“What’s not to like?” Salam asks. Apparently, plenty. Readers commenting on the article seem overwhelmingly baffled or annoyed by this proposal. What’s the guarantee this money would actually go to artists? Why not a $5 internet news subsidy instead? And, again, what about those who don’t listen to music?

I will leave aside most of my quibbles with the details of Salam’s reasoning. (After all, hasn’t Apple proved that plenty of people are more willing to pay a buck a song than to go through the trouble of pirating?) The greatest remaining question to my mind, however, is: Why music?

Media sharing over the internet—legal and illegal alike—consists of more than just music downloads. A huge amount of torrent traffic is dedicated to downloading television shows, for example, not to mention feature-length films, computer games, and pirated software packages. The music industry has simply been the most vocal and aggressive of all these industries in insisting that it be compensated for revenue presumably lost to piracy.

Part of me suspects that Warner’s proposal will never go anywhere because of those who aren’t interested in subsidizing the download habits of others, if nothing else. (Being one who spends very little on music each year myself, and mostly buys directly from artists, it kind of rubs me the wrong way.) But then again, we certainly have plenty of extra fees and such tacked onto our broadband bills that most subscribers never think to question, so perhaps that would just be one more.

Moreover, the whole “music tax” approach is already more or less under effect at universities across the U.S. that have bought into blanket download services for students. I’m surprised that other content industries haven’t thought to ride such successes themselves, tacking an internet television fee onto tuition bills, but perhaps it’s just a matter of time—or perhaps everyone else is waiting to see how badly the music industry suffers in the long run under its own mismanaged public image.

Posted by Jason in Uncategorized | 1 Comment »

OK Go Singer’s Brilliant on Net Neutrality

I’m stoked by Damian Kulash’s New York Times opinion calling for mandated network neutrality. It’s a far more accessible, engaging piece than almost anything written on the subject, and he makes a compelling case. Kudos to him.

P.S. On a personal note, it’s been a metric year since I blogged, and for good reason. Life is crazy now, not least because my wife Tina Collins just got a 2 year fellowship at (ahem) HARVARD! So as I finish up my dissertation (still expecting to wrap it up this summer), we’re gearing up to move (her and probably me) to Cambridge. While I’m still actively applying for tenure-track jobs across the country, I’m also looking at postdocs and other work around Boston.

Expect more rage-against-the-machine blogitude once I’m resettled.

Posted by Bill Herman in Internet policy, Network neutrality, Telecommunications, Telecommunications law | 1 Comment »