Preoccupations

From the horse's mouth: Google's Global Counsel

Busy week last week, culminating with a trip to Brixton Academy on the Thursday to hear Pete Doherty and Babyshambles. There is musicianship and lyrical skill in there (I'm convinced of it! Some of my friends who are musicians are … less certain, shall we say), but this populist, narcissistic evening obscured most of that. (I found myself thinking how strangely reminiscent of Blair he is: needing to be loved, yet coming over so much of the time as considering himself … special.) We move on.

Friday afternoon and a quick trip to the Oxford Internet Institute where Andrew McLaughlin, Google's worldwide policy counsel, was speaking on Google vs. ?: Challenges to Freedom of Information on a Global Network:

Andrew McLaughlin is Head of Global Public Policy for Google Inc. Central policy issues for Google include privacy and data protection, censorship and content regulation, intellectual property (including copyright, patent, and trademark), communications and media policy, antitrust/competition, and the regulation of Internet networks and technologies. The leading countries for Google's government affairs activities include the US, Canada, Brazil, Japan, South Korea, China, India, Australia, Russia, Germany, France, the UK, Israel, Egypt, and Ireland. Andrew co-leads Google's Africa Strategy Group.

Now that was a well-spent hour+. Some notes: 

Google faces a number of challenges: 

1. Censorship: repressive regimes are what one immediately thinks of here and of these China is the only one to which Google has made any accommodation. User-generated content is highly sensitive to the powers-that-be in Saudi Arabia, China, Iran … (So that's blogs, then.) Less obvious forms of censorship include interpretations of what "has to go" because of concerns about child protection and issues to do with cultural protection. Pay close attention to the EC Audio-Visual Services Directive (formerly, TV Without Frontiers) — an effort to create content control — and the Online Content Directive (I think I got this down right, but I can't find anything about it online). 
2. Copyright: without Fair Use rights, Google would not exist. Copyright must be revised so as to seek a better balance between the rights of creators (to whose benefit copyright law is currently skewed) and the rights of users. Andrew showed three videos which, in different ways, re-mix copyright material: Shining, BSB-I want it that way and The Grey Video. (BSB was, he said, a huge phenomenon in China.) Currently, no meaningful Fair Use rights exist in Australia. 
3. Discrimination by carriers: network neutrality; quality of service. 
4. Security. For example, Google Earth maps the world and you can swoop in on … a Chinese nuclear facility. The UK's attitude is 'no security through obscurity', but China, Russia, India and others are not so happy. So far, Google hasn't blurred or blocked a single image at the request of a government. During the recent war in the Lebanon, there was no real time coverage of the action (within Google's technical ability to do) and served images are, on average and approximately, 18 months behind the present, except during national disasters when all the stops are pulled out and images are as current as possible. (This is all to avoid any unhelpful clash with governmental agencies and consequent, restrictive legislation.) Finally, out of concerns about privacy, image resolution will never go so low as to allow identification of individuals.

Google chooses not to geo-target users by ISP address and then use this to enforce a government's repressive/restrictive laws. So, google.de users can go to google.com to search for what Germany requires Google to block on Google Deutschland. (Yahoo! was forced to implement a ban in France on accessing yahoo.com, but this was in a specific case and established no generic principle.)

Chilling Effects maintains a database of Cease and Desist orders.

Some positive things to celebrate or look forward to:

1. Statistical machine translation: one day IM chat in two different languages will be possible. Saudi Arabia doesn't like the service (it was being used to translate English > English, generating an unblocked — new — URL in the process). 
2. Cloud computing. 
3. Ubiquitous connectivity: mobile telephony; spreading wireless access; increasing deployment of fiber connectivity. 
4. Other specific initiatives: eg, Google Literacy, US Government Search.

After the talk, I asked Andrew about Google Desktop and, specifically, Search Across Computers: 'The latest version of Google Desktop provides a Search Across Computers feature. This feature will allow you to search your home computer from your work computer, for example'. (To access this option in Google Desktop Beta Preferences, right click on the Google Desktop icon in the system tray > Preferences > Google Account Features.) I wasn't surprised to hear that the take-up of this has been limited. Many of us seem to be happy-ish with our email residing on Google's servers, but putting our documents there seems to cross some kind of psychological barrier. I suspect that this will change over the next few years as we slide into using more tools that work both online and off, but users haven't taken to this just yet.

By the way, I note that IWR reports: Microsoft and Google have joined forces with the British Library in calling on the government to radically overhaul the intellectual property (IP) law.

Technorati tags: Google, Andrew McLaughlin, censorship, network neutrality, security, Google Earth

BPI gets go-ahead to sue AllofMP3

BBC report here:

The British recording industry has been given permission to sue Russian music website allofmp3.com in the High Court. Members of the British Phonographic Industry (BPI) want to prove the site, which offers downloads for as little as five pence, is illegal. They were given the go-ahead to sue the company last week, and say proceedings will be issued in Russia this week. The operators of allofmp3.com deny the recording industry's claims that their site is not licensed to sell music.

Slashdot doubts the likelihood of this action sticking. WiredFire has an interview with with Matt Phillips, Communications Manager of the BPI. (These links all via ORG-discuss, the discussion list of ORG.) AllofMP3's press statement about recent developments (statement dated 6 June, 2006) is currently here. Earlier (also 6 June) BBC report about the BPI and AllofMP3 here.

I've posted about AllofMP3 before: AllofMP3.com: bursting the mould? (4 January, 2006); Best on-line music site? (25 March, 2004).

Some thoughts from the WiredFire interview:

Whether the BPI action is likely to be that successful is open to widespread conjecture. On the surface they would appear to have quite a solid case under UK civil law, given that their site appears to be targeting English consumers. But enforcing any judgement overseas is going to be an altogether different issue – especially if AllofMP3.com can demonstrate that they have been complying with the laws of their own country and that their export market is incidental to their primary business model.

Perhaps the biggest clue as to their future intentions is detailed within their press release:

“On September 1, 2006 the changes to the Russian copyright legislation will come into force. Since January 2006 the site has been making direct agreements with rightholders and authors at the same time increasing the price of the music compositions and transferring the royalties directly to the artists and record companies. The aim of AllofMP3.com is to agree with all rightholders on the prices and royalties amounts by September 1, 2006.

We believe in the long term and civilized business based on respecting the law, considering the customers' demands as well as the interests of both national and international rightholders”.

… Whatever the outcome, we feel that it is about time that the true cost of digital music is properly reflected in the retail price. Ridiculous statements such as those made by Mark Richardson that “the cost of distribution for downloads is actually higher than for CDs” do nothing to attract any sympathy from those of us who have spent not inconsiderable fortunes in amassing our modest CD and DVD collections. Whilst the BPI are to be commended for their more realistic approach to digital file transfers than their US counterparts, the RIAA, their curious choice of allies in the form of Mark Richardson of Independiente Records is certainly doing them no favours.

Also in the WiredFire interview:

Jamieson went on to criticise iTunes for their use of non interoperable DRM, calling on Apple to open up its software in order that it is compatible with other players. "We would advocate that Apple opts for interoperability."

Technorati tags: AllofMP3, AllofMP3.com, BPI, RIAA, RIAA,  iTunes

UK copyright law and the right to copy

National Consumer Council:

Over half of British consumers are infringing copyright law by copying their CDs onto other players they own, according to a new survey for the National Consumer Council (NCC). The YouGov poll reveals that the practice is common across all ages and social classes, highlighting the absurdity of current copyright law. Three in five (59%) thought copying was perfectly legal, despite the fact that current UK law does not provide a right to reproduce copyrighted material for private use - including CDs, DVDs and downloads. The findings back up NCC’s recent submission to the Government’s Gowers Review that the law is out of step with modern life and discriminates unfairly against consumers -putting unrealistic limits on their private listening and viewing habits.

Technorati tags: NCC, Gowers Review

Meanwhile, in Paris …

… anti-DRM rally (yesterday):

Originals here. Posted by Frédéric de Villamil. Boing Boing'd here.

Technorati tag: DRM

Music

Over the last holiday I picked up on a number of bands and albums. To start with (and most surprising), the new Neil Diamond album, 12 Songs: the product of collaboration with that interesting producer Rick Rubin, it's an affecting CD … I never thought I'd be recommending a new Neil Diamond album! There's an interview with Diamond here (Guardian) and in a short review Neil McCormick (Telegraph; longer Telegraph profile of Diamond here) makes some good points. Then I came across Secret Machines' Now Here Is Nowhere. I need to catch up with their new release, Ten Silver Drops — Observer piece here. I enjoyed the new Flaming Lips' album with its splendid title, At War With the Mystics, but the best discoveries have been Willy Mason (supporting Radiohead on their upcoming UK tour) and his album Where the Humans Eat (Pitchfork review), and Josh Ritter's new album, The Animal Years. On the latter, I'm particularly struck by 'Girl in the War' (mp3), and look forward to catching Ritter in London in May. I'm quite sure I'll be writing much more about Willy Mason once I've had the chance to hear him in May, too.

The social software scene of music listening has its Pandora fans and its last.fm fans. I use last.fm, but this post (via Matt Jones) caught my eye:

People say that the top-down, made-by-those-who-know-what’s-good-for-you approach is now outmoded, but in this case it seems to have what folksonomy will never get us: the element of surprise.

So I was very interested to hear via Techcrunch that the recently launched mashup, PandoraFM, that allows users to submit their Pandora feed(s) to last.fm, now has official Pandora backing. I played with PandoraFM  (in its earlier incarnation) and came away thinking it had a lot of potential. The bugs of the early version, now Pandora has released its API to PandoraFM, should soon be a thing of the past.

Update! Gabe Kangas, the originator of PandoraFM, has posted about the new form of the mashup:

Well, sorry about the lack of warning. www.real-ity.com/pandora is no more. pandorafm.real-ity.com is the future! The name change really means very little though. … there are some … nice features I think you’ll all like. This includes using feeds of information from last.fm to seed Pandora stations. … The other new feature is “tracking” where it tracks what previous artists you’ve listened to and can click on one of them to reseed Pandora if you really like it and want to create a new station with that one. Neat! OH oh and yeah I added a url based interface to creating new stations that will submit. I thought it would be cool if you’re like “Hey man check out this new band called The Rockers, they play electropunktripska” so you want them to hear music like that so you can send them the link http://pandorafm.real-ity.com/?artist=The+Rockers.

And then, another sign of the battle that's been coming for some time now: news that Nokia has just released its latest edition of PC Suite, with the emphasis on … music.

• Transfer music to your phone with upgraded Nokia Music Manager
• Faster music and video file conversions

Check out the new Music Manager — smartphones vs the iPod …

As if all that wasn't enough, the most astonishing bit of news — via Memex 1.1. The right-wing, US Cato Institute has produced a report (pdf; summary here), Circumventing Competition — The Perverse Consequences of the Digital Millennium Copyright Act, that concludes:

The Founding Fathers gave Congress the right to recognize copyrights in order to “promote the Progress of Science and the useful Arts.” It hardly promotes progress to give a handful of companies the ability to tightly control how consumers use copyrighted content. Rather, progress is promoted in a technological marketplace of interoperable products, consumer choice, and fierce competition. The anti-circumvention provisions of the DMCA betray the constitutional vision. They impede rather than promote the progress of science and the useful arts.

Technorati tags: Neil Diamond, Secret Machines, The Flaming Lips, Willy Mason, Pandora, last.fm, PandoraFM, PC Suite, smartphones, Nokia

Intellectual Property: a Digital Rights Campaign

I'm grateful to James Governor for digging a bit further than me, visiting the National Consumer Council's website (as opposed to stopping with the BBC's report — see below). The NCC is dedicating time and energy to digital rights:

There is a new section to the website which summarises the NCC's work on innovation and intellectual property (IP). We argue that the view of consumers — as being at the end of the value chain, choosing from the products and services offered by providers — is outdated, and that this is reflected in IP law...

More information about the NCC's work on IP here:

Traditionally, businesses and policy-makers have tended to think of consumers as being at the end of the value chain, choosing from the range of products and services offered by providers. This does not describe how value is created in a modern economy and the role consumers can, and do, play in innovation and the co-creation of products and services.

This outdated view of the role of consumers is reflected in intellectual property (IP) law which gives rights to owners to control the use of innovations and ideas, and describes public and consumer fair access and use rights as exclusions and exceptions.

In addition, powerful business lobbies have been able to exert considerable influence on the development of IP law. This has increased the level of protection of IP rights and reduced public and consumer access and use rights.

This is not just bad for consumers, it is bad for society, as it constrains the ability of everyone to access important resources, and stifles the sorts of consumer creativity that can enhance economic growth.

The NCC has a page about the Digital Rights Campaign of the Bureau Européen des Unions de Consommateurs:

On 10 November 2005, BEUC, the European Consumer Organisation, launched a campaign for consumer rights in the digital environments calling for the following rights to be enshrined in EU law:

• the right to choice, knowledge and cultural diversity
  
• the right to the principle of 'technical neutrality' — defend and maintain consumer rights to the digital environment
  
• the right to benefit from technological innovations without abusive restrictions
  
• the right to interoperability of content and devices
  
• the right to the protection of privacy
  
• the right not to be criminalised

In addition, the declaration calls for:

• industry to desist from legal action against P2P downloaders to allow the market to find solutions for the on-line development of audio/visual distribution
• action to ensure that DRM users respect consumer privacy and fair use rights

The set of six bulleted points constitutes the BEUC's proposed Consumers' Digital Rights.

James quotes the BEUC's position statement:

BEUC believes that the European publishing sector is crucial to the building of a knowledge-based economy. However, blindly ‘enhancing’, ‘supporting’ and ‘extending’ the copyright protection regime may confer unjustified monopoly privileges, impede competition, potentially impose unfair costs on consumers and risk to inhibit creativity. Do we want a society in which the free exchange of ideas - on which our society thrives - remains possible or do we want access to content curtailed by excessive copyright regulation and abusive use of DRMs? The report correctly states about copyright and DRMs that “widespread acceptance by consumers is still lacking”. The reason for this is (at least) twofold: Firstly, DRMs are restricting consumers legitimate use of copyrighted (and non-copyrighted) material. According to the Commission, publishers also regard DRM as a technology with increased control over content and more precise definitions of the rights associated to the assets they commercialise. These “rights” go beyond what is asserted by intellectual property law and we deplore the lack of discussion on potential adverse effects on consumers, and the eventual need to guarantee consumers rights in relation to the works they legally purchase.

He also found their online petition. To echo James: please go sign it.

As the BEUC puts it elsewhere (1/ here and 2/ here) on their website:

1/
Under the heading of Digital Rights Management (DRM) new technologies are being used to limit or prohibit perfectly legitimate practices. “Exemplary" legal cases are being prosecuted and users threatened with huge penalties for downloading music or films on the Internet. The industry hides behind the artists that it claims to defend, alienating their fans and supporters. We know that there is a serious global problem of piracy. Consumers should not buy counterfeit copies of CDs and DVDs; too often these products are made in large numbers by organised criminal, and probably also terrorist, gangs. On the other hand, private consumers are not criminals or terrorists and the industry must stop portraying them as such. The time has come to guarantee consumers certain basic rights in the digital world, and to tell them what they can do with their digital hardware/content. This is our message in this campaign.

2/
We urge policy makers to endorse the 6 Consumers Digital Rights, and demand:

• A legal framework that will encourage new means of exposure and distribution of digital content, while guaranteeing remuneration to artists, creators and performers and providing consumers and the public with new means of access, discovery and new uses;

• A new balance between exclusive rights in the exploitation of digital content and public interest objectives in using and sharing such content, taking into account the new possibilities of content usage enabled by technical progress;

• That industry desist from legal action against P2P downloaders to allow the market to find solutions for the on-line development of audio/visual distribution that takes due account of the public interest and the interest of artists, creators and performers;

• Action to find solutions on how consumers can effectively exercise their private use rights and to guarantee that users of DRMs respect the legitimate interest of consumers in their personal autonomy and private sphere;

• Mechanisms to ensure that TPMs or DRMs, which restrict uses legally exempted from copyright or not falling under copyright, do not benefit from legal protection;

• A review of the EU legal framework on consumer protection and intellectual property in view of the 6 consumers rights demands expressed in this Declaration.

Technorati tags: NCC, BEUC, IP, innovation, DRM, Copy Rights

Copy Rights

James Governor's MonkChips — What about My Copy Rights? Towards a declaration of digital independence:

If anyone out there likes the idea of a call for Copy Rights, then let me know or blog about it or whatever. If the snowball rolls downhill then we can perhaps formalise a declaration of some kind …

I like. Plus, as was said at the inaugural meeting of ORG, we've got to find the language that will catch the imagination of the music-loving public: 'the importance of language in making an argument. Rhetoric and framing require strong simple images to fall back on'.

More about working towards A Declaration of Copy Rights at James Governor's site … towards 'a positive framework for intellectual property protection, rather than a negative complaint'.

Update — from BBC News:

A UK consumer watchdog has called for new laws to protect users' rights to use digital music and movies. The National Consumer Council (NCC) said anti-piracy efforts were eroding established rights to digital media. …

It made its comments to a parliamentary inquiry into technologies that limit what people can do with CDs, DVDs and downloaded media. In its submission to the inquiry, the NCC said many consumers were regularly running up against the restrictions record companies and film makers put on their products. The consumer group said people were finding that they could not make compilations for their own use or easily move digital copies between different devices.

In its statement to the inquiry it said the digital locks put on content were "constraining the legitimate consumer use of digital content". Also being undermined were rights established by consumer protection and data protection laws, it said. "Consumers face security risks to their equipment, limitations on their use of products, poor information when purchasing products and unfair contract terms," said Jill Johnstone, the NCC's director of policy.

She added that the group had little faith that self-regulation by media makers would protect consumer rights.

Technorati tags: DRM, Copy Rights, NCC

DRM rumbles

Plenty of reverberations set off by Lloyd's post which I wrote about yesterday. The comments to his blog took off and there's a lot there worth reading. Lloyd's post began:

I just had lunch with someone who works for a broadcaster and is wrestling with the idea of distributing content online and we both agreed that what’s missing from the whole DRM debate is a strong case for “just enough DRM".

One of the comments I found most interesting was Tom Loosemore's:

I am the ’some[one] from a broadcaster’ to whom Lloyd refers above. I’m afraid I didn’t come away with the same conclusion wrt our DRM conversation. For me DRM remains a suite of technologies delivering negative consumer value, and as such I can only view it as a a short-term irritant.

In the long term, the near-magical ability of digital tech to make and share perfect copies at near-zero marginal cost will be embraced by successful media businesses - businesses which with probably employ wholly new business models. That said, those new business models are looking decidedly thin on the ground right now. Thus, many rights holders are acting logically in demanding their content is locked up by DRM, as is perceived to be required to support current business models.

This ‘use DRM or nothing goes online’ reality leaves me with a quandary:

1) I could retire to the sidelines and wave ‘DRM is Evil’ placards. Some people I respect hugely have taken this option.

2) Or I could conclude that it is my employer’s best interests to ensure we use the least-bad DRM solution as a necessary evil. That way we’ve at least got a stake in what will be a very messy game, and millions of people will be able to enjoy online access to content which would otherwise not be available to them.

So I would restate Lloyd’s question thus:

If you’ve got to use DRM as a precondition to allowing access to content online, what’s the least-bad flavour?

The hardest questions are often the ones you hate being asked.

BTW, I say that if you still answer ‘none’ to the above, I say you’re copping out of the debate. After all, placard-waving is much easier if you can still access stuff via darknets. Most people can’t or won’t, so in effect you’re denying the majority of people any online access to content which you remain free to enjoy. …

In his second comment to Lloyd's post, Lee says :

… a debate is needed for sure. … The almost total lack of consumer knowledge about the DRM debate (ORG: where are you by the way?) is why we must not trot out classical economic fallacies like ‘the market will decide’ or ‘consumers seem happy with it’. … On the one hand, we need a reasoned debate to involve the public in the story. On the other, those trying to fight DRM in its totality need to get their act together and think about how to bring about systemic change … Maybe part of the answer lies in not calling the least-bad implementations DRM, so we can differentiate between attempts to create mechanisms that open up new distribution channels and deliver value, and Hollywood’s drive to squeeze every last drop of profit out of an unsustainable business model and retain their position of economic power and cultural hegemony.

Doc Searls blogged about Lloyd's posting here. Shelley's posting, Debate on DRM, has some of the best quality comments I've seen in a while.

Required reading is Kevin Marks' 5 short arguments against DRM; his latest on DRM is here.

The UK Parliament's All Party Internet Group has a page dedicated to its Inquiry into Digital Rights Management. David Weinberger's submission to the latter, 'Fair but Wrong', is here and his short essay, 'Copy Protection is a Crime', is here.

In an update to his post, Lloyd notes:

… no-one - and I mean no-one - responded to the main question: is there an application of DRM (or at least something that looks like DRM) out there which actually works (and the implication in there, if you didn’t get it, was that every time I’ve encountered it it does not, OK?). The only sites referred to were emusic (which doesn’t use DRM at all), AllOfMP3 (which, as far as I’m aware, doesn’t send royalties to artists) and Wippit (which I believe does use DRM, just not everywhere, or at least with a light touch). It would appear that the answer to my original question is a resounding “no” from this little survey.

Technorati tags: DRM, copyfight, ORG

What DRM argument?

I enjoy both of Lloyd Shepherd's blogs. His work blog, given that he is Deputy Director of Digital Publishing at Guardian Unlimited, helps me see into the world of commercial publishing and follow the developments at his paper. His most recent post calls on Chris Anderson's question, 'how much DRM is too much?'. He goes on to say:

… let’s face it: we’re going to have to have some DRM. At some level, there has to be an appropriate level of control over content to make it economically feasible for people to produce it at anything like an industrial level. And on the other side of things, it’s clear that the people who make the consumer technology that ordinary people actually use - the Microsoft's and Apples of the world - have already accepted and embraced this. The argument has already moved on.

Hang on a moment! Who's had this argument? Did I blink and miss the great national and international debates? Lloyd asks:

… what are the best implementations of DRM out there, which balance the needs of the provider and the consumer without getting in the way of either? Does such a thing exist?

Ah, if only these kinds of questions were being asked by the DRM-generating industries in frank and open discussion with their customers and artists! That there have been more narrowly conceived commercial decisions and that these arguments have 'moved on' is evident almost everywhere one looks, and, as Lloyd acknowledges fulsomely, copyfighters and those who have a vision for the net (as something other than just another 'content distribution system') have been shouting about developments for a long while now. Here, DRM is of great concern, but it's the very nature of the net that is at the heart of the matter. Some recent examples … Julian Bond (yesterday, writing about Google's plan to open an online video store):

The fly in this ointment is indeed DRM. … Amazon, AOL, Apple, Microsoft, Yahoo!, Real and now Google have all jumped the fence and landed on the other side as content intermediaries no different from the old media businesses. So now they're part of the problem not a potential solution. And sitting in the middle of all this is Intel whose close ties with all these players mean that they're more than happy to build in the hardware controls to support it.

Doc Searls (November, '05):

All the big boys: the PC makers, the chip makers, the mobile equipment providers, the "consumer experience" deliverers (including Virgin, its many holdings and the rest of the entertainment industry), the patent, copyright and IP (Intellectual Property) absolutists, the parochial national interests, and — most of all — the carriers by the grace of whose fiber and wiring the Net is made available — all want to control you: what you can do with their services and devices, what you can buy, who you can buy it from, and how you can use it. The free and open Internet, a World of Ends built on an end-to-end, peer-to-peer architecture, is slowly being privatized and nationalized, one DRM file, one blocked port, one platform silo, one walled data garden, one legislative action, one regulatory decree, one Supreme Court decision and one national cyberwall after another.

This is what we are fighting, folks. The open and free marketplace the Internet provides is shortly going to look like the best darn mess of few-to-many distribution systems for "content" the world has ever known. It will not be the free and open marketplace it was in the first place, and should remain. The end-state will [be] a vast matrix of national and private silos and walled gardens, each a contained or filtered distribution environment. And most of us won't know what we missed, because it never quite happened.

Rafael Behr, editor, Observer online, concluding his article 'Access Denied' (Observer, September, '05):

Not everyone is pessimistic. In fact, a lot of long-term web users are utopian about the future. All the hyperbole that was first draped around the web has proved inadequate. In the way it transforms and accelerates the communication of ideas between individuals and societies, it is about as big as the invention of the alphabet. And it is free. But for how long? The machinery of government and big business is only just beginning to understand the scale of the web. The culture of common purpose that prevails today is a product of neglect as much as design. The real gold rush has barely begun. To experience the sharing culture of the blogosphere today is like living in a commune built on an oil field. One day, the diggers will move in.

Ours is the last generation that will remember the analogue world and feel the difference between the two realms. For the next generation of digital natives, the web will be a slick, commercial machine. It will be just as big as the world we currently live in and it will be just as ruthless and as corrupt.

I hope I am wrong. I listen to today's web gurus, the people who preach freedom, and am fired with enthusiasm for the new digital society of the future. But I fear the odds are against them. An excess of idealism only seems to prove that the golden age of the web is, in fact, right now.

And, finally, David Weinberger at the OII last November: 'This could be the bright, shiny period of the internet, of openness'.

What's missing is precisely the public debate — about DRM, about the net. (See Lee's comment to Lloyd's post: 'People don’t actually know much about DRM and therefore cannot be expected to make a reasoned judgement about its side effects'.) ORG has been created to help address this here in the UK (further links via this posting), but the challenge ahead is huge.

Meantime, DRM is developing apace and the latest news I've come across concerning it again justifies the kinds of concerns being voiced — David Berlind (writing two days ago):

I've been warning about the unprecedented levarage that the DRM patent holders will be able to apply to content distribution channels such as the telecommunication networks. Having multiple incompatible DRM schemes out there is bad enough.  All these devices that are incompatible with each other (some from the same manufacturer like Motorola)? Being forced to match devices to content sources on the basis of DRM compatibility?  It's ridiculous.  But disabling MP3? If it's true, this crosses the line …

I don't know the answers to the questions Lloyd poses, but I know what I value in the net and I know that DRM absurdities (some choice ones from the walled garden of iTunes/iPod) are undermining the very customer bases they were created to protect. In that self-inflicted damage, there lies some hope, at least.

Technorati tags: DRM, copyfight, ORG

RIAA & Russia

I missed this from ars technica last month:

… certain regions remain outside the RIAA's and IFPI's sphere of influence. One of those is Russia. A number of music download services operate out of that country, including the well-known allofmp3.com. … Now the RIAA is attempting to gain the support of the US government in its fight against the Russian music download services. A resolution passed shortly before the Senate recessed for the holidays mirrors an earlier House resolution calling for the Russian Federation to "provide adequate and effective protection of intellectual property rights, or it risks losing its eligibility to participate in the Generalized System of Preferences (GSP) program." The GSP allows products from favored countries to be imported into the US duty-free.

In a statement, RIAA CEO Mitch Bainwol hailed the resolution, which lacks the force of law: 

The U.S.-Russia relationship must be built upon a mutual understanding of shared obligations and the application of the rule of law. The effective protection of American intellectual property has been sorely lacking in Russia. This resolution is significant because it expresses the will of the U.S. Congress that Russia must take effective action against those who would steal America’s knowledge-intensive intellectual property-based goods and services. We must not enter into political arrangements with countries ill-prepared to adequately protect our greatest economic assets. 

… While it's true that Russian services such as Allofmp3.com operate without the approval of the RIAA and IFPI, the fact that they are apparently thriving should be telling the recording industry something about the market. Allofmp3.com offers consumers an almost endless array of inexpensive choices when it comes to buying music. Customers can choose their preferred file format, bit rate, and a very extensive catalog of artists and recordings, all without DRM restrictions. Imagine that ... giving consumers what they want instead of forcing low bitrates and restrictions on where and how the music can be played back. If US and Western European music stores offered the same amount of flexibility on bitrates and formats, chances are good that consumers wouldn't bother with Russian services, even if it cost a bit more.

Technorati tags: AllofMP3, AllofMP3.com, RIAA

AllofMP3.com: bursting the mould?

AllofMP3 doesn't officially support the distribution of files downloaded from its site, but one of its great attractions is that, because it leaves this decision to the end-user, no DRM is imposed. Its encoding possibilities are another excellent feature of its catering to the customer (if you don't know the site, check this page). And, of course, it has the great merit of making music buying so cheap that for the individual user it has some of the economic merits of sharing. But hang on! If I'm not sharing, but instead buying music — more music (because it's so cheap) — then there must be a business model here that the music industry should be interested in. Surely?

You would have thought so. Instead, everyone is a-buzz with the question of AllofMP3's legality (here's a current discussion at Digg), because that's how the music industry has shaped the debate. I want to look at the legal issue (it's undeniably important), but I also want to remember what AllofMP3 represents. Whatever else you might think about it, it's a very well-delivered facility for the online music lover that sells music at such a price, and with such a full quiver of DRM-free encoding choices, it must be doing a phenomenal trade.

First, the legal status. On the Russian site you can read:

All the materials in MediaServices projects are available for distribution through the Internet in accordance with license # LS-3М-05-03 of the Russian Multimedia and Internet Society. Under the license terms, MediaServices pays license fees for all materials subject to the Law of the Russian Federation "On Copyright and Related Rights". All materials are available solely for personal use and must not be used for further distribution, resale or broadcasting. The user bears sole responsibility for any use and distribution of all materials received from AllofMP3.com. This responsibility is dependent on the national legislation in each user's country of residence. The Administration of AllofMP3.com does not possess information on the laws of each particular country and is not responsible for the actions of foreign users.

Museekster has an interview with AllofMP3, exploring key issues such as legality and compensation of artists, and there is another interview with ROMS here, but both interviews date from very early in 2004 (January and February, respectively). A lot has happened since. The Wikipedia page on AllofMP3.com is here, but by far the most legally knowledgeable posting I've come across is from Wahab & Medenica LLC's Biz-Media-Law Blog (an American law firm):

Article 39 of the Russian “Law on Copyright and Related Rights” allows for the broadcast and cablecast of a phonogram “for general public knowledge” without the permission of a performer so long as royalties are paid through collective rights organizations such as ROMS. This has been widely interpreted as creating a compulsory licensing scheme with Internet music sites being classified as “broadcasts” or “cablecasts” for the purposes of this exemption. U.S. copyright law includes compulsory licenses for derivations of musical compositions, or “covers;” however, in order to copy the actual sound recording, a license must be granted by the copyright holder. Unlike U.S. copyright law, under the Russian compulsory license scheme, websites such as AllofMP3 can offer music by the Beatles because they need not receive permission from holders of copyrights to sound recordings. If this is the correct interpretation of Russian copyright law, and AllofMP3 does in fact have the proper license from ROMS, the service is probably legal in Russia.

Organizations such as the International Federation of the Phonograph Industries (IFPI) and the International Confederation of Societies of Authors and Composers (CISAC) have been pressuring Russia to either prosecute these websites or revise the copyright law. CISAC expelled ROMS from CISAC membership in October of 2004 for contravening internationally accepted collective administration principles by issuing licenses to copyright users without being given the authority to do so by copyright holders. Despite this pressure, Russian authorities declined in March of 2005 to take action against AllofMP3.com, reasoning that the Article 39 exception creates a loophole whereby Russian copyright law only covers physical media such as CDs and not digital files. (For more details see alex.moskalyuk.com.) Moreover, according to a recent article in the Register, ROMS has lost the backing of the Russian Authors' Organization (RAO) which the article interprets as placing ROMS in unlicensed waters.

If sites such as AllofMP3.com are legal under a compulsory licensing scheme in Russia, these licenses only apply to music to users within Russia and do not permit the sites to distribute music worldwide. Essentially, digital music files have become a new type of gray market good when sold to U.S. purchasers even though the Russian websites claim that they target Russians exclusively and provide disclaimers stating that users should consult the laws of their own nations. Sites such as AllofMP3.com raise the confounding problem of how one can impose import and export controls on digital files sold legally from a Russian website to U.S. purchasers who download, or import, these files across invisible international boarders. Even if importation of digital music files could be detected and prevented, Section 602 of the U.S. Copyright code permits importation one copy of a copyrighted work without the permission of the copyright holder for personal use.   

With the successful defeat of Grokster handed down by the Supreme Court it seems likely that free file-sharing services in the U.S. are likely to decrease. This void may be filled by quasi-legitimate foreign online music sites offering superior service at a fraction of the price compared to a download from popular legitimate U.S. sites such as iTunes. It appears that there is very little that the music industry players can do besides pressure Russia to change its copyright laws, and even if successful in doing this, it is likely to be a slow and laborious process. In the meantime, the music industry should decide what legal actions to take, if any, and how to compete in the constantly changing global environment.

The status of AllofMP3 differs from country to country: GEMA, the German society for musical performing and mechanical reproduction rights, issued a press release in April of last year making it clear that under an amendment to German copyright law it is illegal in Germany for anyone to download from AllofMP3.com, and the Italian portal was shut down in July.

A number of websites, blogs, etc continue to say that ROMS is a member of CISAC, and in this and other respects there is quite a bit of disinformation about AllofMP3 in circulation. Yet as far as I can determine, on the basis of the evidence I've seen, BPI spokesman Matt Phillips, quoted in the Observer in May of last year, also got it wrong when he said that, 'Anyone who is downloading from any Russian website is doing so illegally'. (He went on to say: 'Of course on the grand scale of copyright infringement this is not our number-one priority. We are targeting people who are uploading large amounts of music to the internet and then distributing it via peer-to-peer software. However, we would urge anyone who wants to download music to do so from legal authorised services.') The Observer's own reporter concluded, just before quoting Phillips, 'There has been a lot of coverage of allofmp3 in the international press, which has largely concluded that UK consumers can legally download the music until the dispute is resolved'. (In February 2004, The New Statesman, on their New Media Awards Site, enquired into AllofMP3 and described it as legal. The relevant posting is no longer available online it seems, but I blogged about it here.)

Nevertheless, the legal position does not exactly commend AllofMP3. The music lover who uses AllofMP3 would appear to be using a brilliant facility that is still in operation because of a legal loophole(s). Museekster notes that, in the same Register article as cited above, IFPI's legal adviser for Russia, Vladimir Dragunov, admits: 'Because of these loopholes we don't have much chance of succeeding if we attack these companies who are using music files on the Internet under current Russian laws'. Moreover, like David Berlind I'm left asking, 'If I wanted to make sure the copyright holders got whatever royalties were due to them, how would I do that?'. This must be a major factor in determining how comfortable we feel about the site.

And yet. Much of the attraction of AllofMP3 lies in its addressing, however ambiguously and darkly, the exasperation of customers fed up with the entrenched positions of the music industry on DRM, charges, choice of encoding, etc. This is acknowledged even by a leading industry player such as Richard Wolpert, chief strategy officer for RealNetworks. The WSJ reported (January, 2005, subscriber only; text available here):

Mr. Wolpert acknowledges that U.S. digital-music companies could learn a thing or two from the Russian sites, pointing out that Napster's early success persuaded record labels to open up to the idea of selling music downloads. He says legal services should pay attention, for instance, to the Russian sites' higher sound quality and variety of file types. "It's fair to say they might have some innovative ideas," he says. "In an odd way, that might help push forward the legitimate services."

Museekster carries a translation of a news report from Friday 4 March, 2005 (prime-tass.ru) about Moscow prosecutors refusing to initiate action against AllofMP3: the Prosecutor concluded that, 'distribution of works does not result in making a new copy of the work, but only creates conditions for being utilized by end consumer'. This sounds like an internet-based translation service at work! But through the language I hear the idea of end-user digital freedom being defended.

In one of my favourite quotes from the net, Jon Udell wrote (March, 2004): 'Something wonderful died with Napster: the collaborative discovery and sharing of a wide diversity of music'. AllofMP3 is so cheap there's a social sharing going on — one the music industry should love ($$$): a friend mentions a band and, if they're on the site and you trust your friend's taste, it's so cheap you feel inclined to buy and download their music — or you can first use the excellent 'Preview song' facility. AllofMP3 is not Napster, but it's creating a social buzz that then spins off into sites like Last.fm. More people buying more music, encouraging more people to buy more music …

We can't go on and on repeating the errors of the past. Online digital life has got to change and I note two recent straws in the wind. Neither is about AllofMp3 but both are about the need for realising a new understanding of the digital life (P2P, DRM, charges, etc):

… we hope in the future to contribute actively to developing innovative new ways for consumers to acquire digital content legally, and at a fair price, without succumbing to the oppressive restrictions inherent in today’s DRM technology. PeerPressure

Conceptually, I think the idea of paying a monthly fee and getting to choose from 1000+ movies is what those of us in the “cable generation” consider “normal.” Unlike iTunes’ $2 per television episode, this fits much more naturally in how I regularly consume video content. … the cost [of iTunes video] starts to become a bit much after a while. … If I were a betting man, I’d say that Apple will introduce a subscription service of some kind next week as well. There’s going to be too much pressure not to …   Russell Beattie on Vongo

AllofMP3 is surely now so well-known and celebrated that it must represent a challenge to the RIAA, the BPI, the IFPI et al that can no longer be met just by drawn out legal actions across different countries. That's the dull reaction of retreating, defeated and dying armies. The more meaningful challenge is to the business model of the music industry and the blue ocean opportunity here is striking: 'We argue that beating the competition within the confines of the existing industry is not the way to create profitable growth' (with thanks to Tom Peters).

I remember an experiment at school, performed years ago: we took seeds (peas, I think), mixed them with plaster of Paris and made a hard ball which duly split apart as the germinating peas thrust their way out. The force exerted by the germinating seedlings was startling. Is AllofMP3 going to make the traditional form of the music retail industries split apart? Read Julian Bond's post. Don't forget that those who break the traditional ways of doing something are for a long while dismissed, derided and then regarded (too late) as a threat to be stamped on. Think Dyson. Watch Magnatune. Et cetera.

Technorati tags: AllofMP3, AllofMP3.com, downloads, DRM, Napster, RIAA, BPI, IFPI, CISAC

Paying for our music

I missed this, Paying for the music, a great posting from Julian Bond, when it appeared in October 2004!

In Internet distribution we have economies of scale that become economies of abundance rather than scarcity. A track that's only downloaded twice a year costs no more to host and deliver than one that's downloaded two million times. If you solve the economies of scale, then one million tracks delivered twice each costs you the same as that one hit, but generates more money. The implication for the record companies is that they should be digitising their back catalogues and all those copyright-free recordings as fast as they can and offering them for sale at a much reduced rate. In fact, the best business model for them for downloading looks to be huge volume of inventory allied to a premium rate for the latest hits, rapidly dropping to near zero for back catalogue. …

Now, for this to work, you, the customer, needs to actually buy all this stuff. Somebody, somewhere, has got to pay to cover the costs. Which finally brings me to the question. How much are you really prepared to pay for music? Here's my answer. The first thing I want is a product I actually want to buy. That's a minimum of an mp3 digitised at 192Kb VBR with no DRM. That's the point where the product is as good as something I rip myself from a CD. It's also quite a bit higher quality than that available from iTMS, Napster, Sony, Rhapsody and the other online services. And I can play it anywhere. On my home PC, on my laptop, my portable music player, my mp3 CD player, or in the car. Without jumping through the DRM hoops and with the ability to back it up.

… for me $0.99 (or whatever the UK equivalent is) per song is too much. I have to think about whether I want to blow $10 on this album instead of that one. … Now, what I've discovered is: if I buy it from AllOfMp3.com at $0.01 per Mb or about $0.06 per song, I don't even think about the cost. $1 per album is so low that I'll just do it. The end result is that I'm buying more music and listening to more music, and I'm actually spending more than I used to when buying CDs.

So for me, at least, the price point where I'll switch from trying to get it for free and actually paying for downloads is somewhere between $0.06 and $0.99, or $1 and $10 per CD. My guess is that for most people the point where they stop thinking about the price and download huge quantities is around $0.25 per song. … So, putting this together with the detail from The Long Tail, it seems clear to me that the best strategy for the music industry is to go flat out for scale so that the overheads drop well below $0.25. And then offer up everything they've got, even it only gets a couple of downloads a year. …

From the labels' point of view, this should look like Free Money. It's from inventory that's already covered its costs and wasn't earning anything anyway. And then we can all just forget about DRM, suing customers, price cartels and regional price differences. And at that point maybe the p2p file sharing networks will just fade away because nobody can be bothered any more.

Technorati tags: allofmp3, allofmp3.com, Long Tail, downloads

Online music

CrunchNotes:

I’m sticking to my prediction that music will have to be free and un-DRM’d at some point. There is just no other way. Labels and artists will need to make money from certified-quality downloads, limited edition merchandise, tours, etc. Bands and managers will make a lot more money. Labels will mostly go out of business. And while this debate and courtroom drama continues, Russia-based, pay-by-the-megabyte allofmp3.com is changing the game permanently. The RIAA either needs to go nuclear on them (if they can) or change their own business models for good, because they can’t just continue to pretend they don’t exist.

Agreed, on all counts.

(This post was made, by way of experiment, with Performancing.)

Plus:

1. If you haven't seen it already, go read David Berlind's post of today, Why your music collections will bite the DRM dust.
2. I've written about allofmp3.com before: here and here.

Oxford and the Internet

We're very lucky, based where we are, to have access to what's going on in, at and around Oxford. I'm about to blog about yesterday's seminar at the Oxford Internet Institute, but have just spotted these dates for 2006 in the University Gazette:

Professor Jonathan Zittrain, Professor of Internet Governance and Regulation, will deliver his inaugural lecture at 5 p.m. on Tuesday, 25 April, in the Examination Schools. Subject: 'The future of the Internet—and how to stop it.'

Professor Jonathan Zittrain, Professor of Internet Governance and Regulation, will lecture at 5.30 p.m. on the following Mondays in the Oxford Internet Institute, 1 St Giles'.

• 27 Feb.: 'Code is law: technological complements to copyright.'
• 6 Mar.: 'Jurisdiction and the Internet.'

Open Rights Group

To London, to the inaugural meeting of the ORG, the Open Rights Group at 01Zero-One (Hopkins Street, Soho). The theme? 'Digital Rights in the UK: Your Rights, Your Issues'.

The evening was introduced by Suw Charman, Executive Director of ORG, who asked Jonathan Zittrain, Chair in Internet Governance and Regulation, Oxford University (Co-Founder, Berkman Center for Internet & Society) to say some words. He was impressive and I look forward to meeting him again tomorrow morning at the OII. He spoke about how the launch of ORG was 'not a moment too soon', the future of the net being so uncertain. After Suw had spoken about ORG, Lloyd Davies (some of us had already seen more of him than we'd bargained for) took over and ran the evening, centred around a number of "conversations": eg, how we should/could engage lawyers; how we engage MPs and MEPs; how we make the ORG an organisation that does for Britain and British law what the EFF does for the US; tackling the challenge of copyright law (including working for the abolition of Crown Copyright) … The ORG has much to do to establish and define itself, but is already being heard. It has my £5 a month and I hope to hear a lot more from it as it works with like-minded organisations (such as The Foundation for a Free Information Infrastructure) in the area of digital rights.

The need for the ORG is in part summed up (via email) by Danny O'Brien: 'The emergence of new communications technologies has radically changed the civil rights landscape in our society. Privacy, intellectual property, and access to knowledge are just some of the areas where digital rights are being eroded by government and big business.'

As of today, the Wikipedia ent