This is big: Judge orders new RIAA trial

In a decision that could have far-reaching implications for future lawsuits by the record industry involving peer-to-peer networks, the judge who was hearing the Jammie Thomas case has thrown out the decision in that case, effectively declaring a mistrial, saying he now believes he was wrong to have instructed the jury that simply “making available” copyrighted files was enough to find Thomas guilty of copyright infringement. In the original case, the judge said that it was not necessary to show that anyone had actually download the files, but he now believes that this was wrong, and that actual distribution must be shown, not just that the files were available:

The Court’s examination of the use of the term “distribution” in other provisions of the Copyright Act, as well as the evolution of liability for offers to sell in the analogous Patent Act, lead to the conclusion that the plain meaning of the term “distribution” does not including making available and, instead, requires actual dissemination.

Continue reading

Can you say The Streisand Effect?

I was flipping through my feed reader today, when I came across a post at BoingBoing about some funny doctored photos of kids at a science fair. You may have seen some of the same ones here and there around the Internet: there’s a girl holding a giant clip from a set of jumper cables in front of a cardboard setup that says “Electricity vs. Cat,” and another kid with a ’70s shirt and a bowl haircut in front of a board with a large hole and two nearby electrical wires that says “12-volt Sex Robot.” They are hilarious. Unless, of course, you are the kid in the ’70s shirt and the bowl haircut. Then, apparently, they are salt rubbed in a very raw wound that was created 30 years ago at the high-school science fair.

The BoingBoing post doesn’t have any photos any more. At first, it had photos but the faces were blurred, and there was no link to the site they came from, because Mark Frauenfelder said that he was concerned that they were real photos of real kids. Then he got a comment — not from one of the kids, or one of the parents of one of the kids, but from the kid in the bowl haircut, or rather the adult who used to be the kid. He said:

Continue reading

J.K. Rowling: Totally wrong on copyright

A U.S. Federal Court has ruled in the case of J.K. Rowling vs. the Harry Potter Lexicon, in which the Potter author sued to prevent a former librarian from publishing a compendium of facts about the novels. The book was based on the Lexicon website, which Steven Vander Ark has run for years — a fan site so comprehensive that Rowling herself has praised it in the past. The court decided on Monday that the Lexicon was not protected by the fair use clause in U.S. copyright law and would therefore be illegal if published. The judge, in my view, was completely wrong, and so was Ms. Rowling for bringing the suit.

I, of course, am not a lawyer. I don’t even play one on television. But I know a little bit about writing, and I know (or think I know) what copyright law was originally intended to do — which is to protect a creator’s rights to their creation, but also to balance those rights with the rights of society to create new works based on that original work. In my view, the judge’s decision gave the first part of that equation a vast amount of weight, while giving the second part virtually no weight at all. If anything, he should have done the exact opposite.

Continue reading

Will anti-DRM protests hurt Spore?

Update:

Spore is apparently one of the most widely-pirated games in recent memory, according to a report at TorrentFreak, with many downloaders referring to the draconian DRM restrictions as a justification.

Original post:

One of the most hotly-awaited video games of the past decade, Spore — the new game from Will Wright, reportedly in development for 10 years — hit stores this week, and was promptly panned for what fans say is overly restrictive digital-rights management. The game checks with Electronic Arts headquarters after it’s activated online, and then again after a second or third activation. In order to activate the game a fourth time, owners have to phone the company and provide license codes, product details and other proof of purchase.

Electronic Arts says that such measures are required to fight rampant game piracy, while fans of the game say restricting them to only three installs amounts to making them rent the game, and they have responded by bombarding the review section of Amazon’s store with complaints. When I first came across reports of this activity, there were only a few hundred negative ratings, but when I checked today there were more than 1,600; the average rating for the game, with more than 1,550 contributions, was a single star.

Continue reading

Muxtape: What’s our lawyer’s number again?

Update:

It doesn’t sound like Muxtape is coming back anytime soon, judging by the statement that Portfolio magazine got from the RIAA (hat tip to MG Siegler at VentureBeat for the link), which said that the record industry group had “repeatedly tried to work with them to have illegal content taken down” and that the site “has not obtained authorization from our member companies to host or stream copies of their sound recordings.”

Original post:

Muxtape, one of a host of popular online music-sharing apps that have sprung up over the past few months, has shut down, but claims that it isn’t gone for good. The website says that it will be “unavailable for a brief period while we sort out a problem with the RIAA,” while the Muxtape blog says that “no artists or labels have complained” and maintains that “the site is not closed indefinitely.” Will the site be able to strike a deal with the record industry’s lobby group/enforcer? Many music-sharing services have tried and failed to do so in the past.

The issues are laid out fairly well in a recent Valleywag post about the startup, which is run by Justin Ouellette, formerly of Vimeo, and financed by Vimeo co-founder Jakob Lodwick. The fact that Muxtape allows you to share your music with others is a legal grey area (depending on whom you talk to), but the ability to download those songs quickly and easily is likely what has the RIAA’s knickers in a twist. According to Valleywag, Ouellette has talked about changing the format of the songs streamed through Muxtape.com to make it harder to capture them.

Continue reading