Slippery SOPA

Copyright Critics of the failed Stop Online Piracy Act and the Protect IP Act (SOPA/PIPA) have been having some fun with some internal RIAA and IFPI materials regarding the music industry’s anti-piracy efforts that leaked to TorrentFreak last week. Part of the cache includes a PowerPoint presentation delivered by RIAA deputy general counsel Victoria Sheckler to IFPI members back in April (pdf).

The critics are taking particular delight in Sheckler’s acknowledgment that the laws were “not likely to have been effective tool[s] for music.” Here’s the PPT slide summarizing the SOPA/PIPA debate:

While perhaps a bit embarrassing for the RIAA, I don’t find the revelation terribly surprising. The bills weren’t really crafted with music in mind; most of the online piracy the music industry is concerned about occurs over peer-to-peer networks, which were not the targets of the bills.

Rather, the bills were crafted by the MPAA, as a tool against movie piracy. Though P2P networks are responsible for a certain amount of movie piracy, more of it these days involves digital locker services, mostly based outside the U.S., like Megaupload, which were the main targets of SOPA and PIPA. As data contained elsewhere in Sheckler’s presentation show, digital lockers make up only about 6 percent of what the music companies regard as piracy, compared to 23 percent Read More »

Old media falling out of favor at DOJ

Antitrust The U.S. Justice Department has opened a “wide-ranging antitrust investigation” into whether cable operators are illegally using bandwidth caps and other tactics to try to squash growing competition from online video services like Netflix, the Wall Street Journal reported last week.  Subsequent reporting by the Journal revealed the investigation also covers the satellite TV services Dish Network and DirecTV, and that the feds are also looking into whether pay-TV operators are using so-called most-favored nation clauses in carriage agreements with the networks to restrict the network’s ability to license their content to online, over-the-top distributors.

The investigation and the issues at stake, particularly the department’s apparent focus on most-favored nation agreements, carry distinct echoes of the lawsuit the Justice Department filed in April against Apple and several leading publishers over an alleged conspiracy to fix prices in the e-book market. As in the cable industry investigation, the e-book lawsuit charges Apple with using most-favored nation clauses in its agency licensing agreements with the publishers to ensure that neither Amazon nor any other e-book retailer gets a better deal than Apple got or can sell e-books at prices lower than Apple’s price. Read More »

Aereo combat: Why the networks should be worried

Copyright There are certainly cheaper markets to operate in than New York City. And if you were preparing to launch a risky media startup, you might be expected to try opening out of town, where the downside would be smaller, before taking your show to Broadway. Not so for Aereo, the Barry Diller-backed startup formerly know as Bamboom, which offers to stream broadcast TV channels to subscribers over the Internet for viewing on connected devices for $12 a month. Subscribers will also be able to record programs as they would with a DVR and store them in the cloud for later viewing.

Perhaps Diller just craved the spotlight, and wanted to launch in center of the media universe. But a more likely reason for picking New York is that it’s the seat of the federal Second Circuit Court of Appeals, which in 2008 handed down an opinion in Cartoon Network, et. al. v. CSC Holdings, better known as the Cablevision remote-DVR case.  That case, in which the cable operator’s cloud-based DVR service was challenged unsuccessfully by the networks,  is Read More »

Who lost SOPA?

Legislation The blame-storming in Hollywood over the failure of SOPA and the Protect-IP Act has begun. MPAA chief Chris Dodd offers a half-hearted mea culpa in the New York Times, acknowledging a “perception problem” for the industry. But he pins most of the blame on “irresponsible” technology players like Wikipedia, Google and Reddit for stirring up the natives with their blackouts and black propaganda.

More darkly, many in the media industry are blaming President Barack Obama for the loss, accusing him of a stab in the back for siding publicly with Silicon Valley after Hollywood had raised millions for his campaigns. One time SOPA and PIPA supporters in Congress who went wobbly in the face of public pressure are also coming in for scorn.

Most of the problems the media companies have had over SOPA and PIPA, however, have been self-inflicted. Read More »

Why Concurrent Media did not go black today

Legislation There were, as best I could tell without an engineering degree, sound engineering reasons to oppose the DNS-blocking provisions of the Stop Online Piracy Act and Protect IP Act. An enforcement mechanism that relied on maintaining a security hole in the Domain Name System, just as Internet engineers around the world were implementing a long-awaited fix for that hole, seem pretty self-evidently a bad idea. Especially so since the enforcement purpose itself could be so easily defeated by the simple expedient of typing in IP addressed directly.

There were also, again as best I could tell, serious ideological and societal implications that flowed from that enforcement strategy. Insofar as DNS blocking in the U.S. would encourage the adoption of alternative systems for resolving IP addresses, which were not subject to U.S. jurisdiction but which more Read More »

Who is winning the SOPA fight?

Copyright Only a few months ago, it appeared that supporters of the Stop Online Piracy Act had the votes to whisk the bill through the House Judiciary Committee and get it to the House floor before anyone really noticed what was happening. The bill was sponsored by both the chairman and ranking member of the committee and was the top legislative priority of major U.S. industries with a history of generous campaign contributions. The skids seemed more than amply greased.

For all that, however, SOPA’s supporters weren’t quite quick enough. Opponents raised enough alarms that a Judiciary Committee hearing last month expected to be a mere rubber-stamp markup of the bill turned into a contentious, two-day marathon that only ended when Congress itself adjourned for the year. Nearly 70 proposed amendments were offered and the committee barely got through a third of them before chairman Lamar Smith (R-TX) reluctantly brought down the gavel. Read More »

Box office vs. Xbox

Consumer Spending Hollywood is not having a very jolly holiday season so far. Last weekend not only was the worst weekend of the year in terms of total box-office grosses, it was the worst since September 2008. Dividing the weekend’s grosses by the average ticket price, in fact, suggests the number of Americans actually going to a movie theater over the weekend was the lowest since right after the terrorist attacks of September 11.

It isn’t just a one-week phenomenon, either. Data from the MPAA show that total theatrical admissions — butts in seats — have fallen fairly steadily since 2002, with a brief spike in 2009 due to the release Avatar, the highest grossing movie of all time.

Ticket-price inflation and the introduction of 3D, for which theaters have been able to charge a premium, have largely masked the effect, allowing gross receipts to hold steady or even grow over that period. But the overall erosion of the audience really ought to be a bigger concern for the studios than their public comments would suggest.  Read More »

Oregon senator may get rated X by Hollywood

Legislation Senator Ron Wyden probably isn’t invited to the MPAA Christmas party here in Washington this year. The Oregon Democrat single-handedly held up passage of the PROTECT-IP Act by placing a hold on bill, preventing it from coming to the floor for a vote, and is co-author, with Rep. Darrell Issa, a California Republican, of the Online Protection and Enforcement of Digital Trade (OPEN) Act, a bi-cameral bill aimed at preempting both PROTECT-IP and the House’s Stop Online Piracy Act (SOPA), the MPAA’s two highest legislative priorities.

That alone would be enough to make Wyden unpopular around the Jack Valenti Building on Eye Street. But he’s also no going after one of the MPAA’s favorite anti-piracy enforcement programs: the Department of Homeland Security’s domain-name seizure program, Operation in Our Sites. Read More »

Facebook prepares to face down competition, in Washington

Lobbying It’s no secret that Facebook knows a lot about its users. Just how much can still startle, however, as is evident from perusing the database compiled by the web site Europe vs. Facebook (h/t Forbes). In Europe, every citizen in the EU has the right to access all the data a company has collected on him or her, and based on the personal Facebook dossiers provided to Europe vs. Facebook (PDF), the print outs can run to hundreds, even thousands of pages.

With last week’s announcements of the revamped news feed (now called the timeline) and the integration of Spotify and other media services into the Facebook platform, the social network will be collecting vast new quantities and categories of data on its users, more or less in real-time. Read More »

Court makes a hash of online storage

Copyright Most of the initial post-game commentary on the U.S. District Judge William Pauley III’s long-awaited order in the  MP3tunes case (embedded below) has focused on the court’s finding on whether the online music locker service qualifies for the safe harbor protections in the DMCA, and its implications for other would-be cloud storage services (basically it does qualify, according to the court, although both MP3tunes and CEO Michael Robertson personally were found liable for contributory infringement, which is not covered by the §512). But the ruling’s most lasting impact may come from Judge Pauley’s almost cursory dismissal of the record label’s public performance claim. Read More »

Ripping yarns

Copyright The British government on Wednesday released its long-awaited set of proposals for updating U.K. copyright law for the twenty-first century. Sort of.

The actual report (PDF) might best be described as notional, or perhaps aspirational — a set of ideas the government is publicly endorsing but with formal legislative language to follow later, sometimes much later. In some critical areas, in fact, the report manages to raise more questions than it answers.

One such area concerns format-shifting, or what the report calls “private copying.” Here’s what the report has to say on the matter: Read More »

Rovi drops last-minute lawsuit on Hulu

Patents Very amusing timing to Rovi’s patent infringement suit filed against Hulu today in federal district court in Delaware. The litigation concerns the old Gemstar-TV Guide patents on electronic program guides, which have been the source of countless legal actions by Rovi in the past.

There are two ways to read today’s move. Either Rovi believes Hulu really will be sold, and it wants to get a hook in deep enough so that any deal to acquire the streaming service would likely need to include a provision to settle outstanding litigation. Or, Rovi believes Hulu will not be sold and it wants to get a hook in now while it’s is still a going concern and there’s still someone still there to collect from.

I guess it was now or never.


Netflix Facebook integration gets Borked

Legislation We’ll have more on Netflix’s Q2 earnings report shortly, but one odd item bears flagging because, unless you’ve been around the video business for long time, you might not get the reference.

According to CEO Reed Hastings’ shareholder letter, Netflix plans to introduce its long-planned Facebook integration shortly, probably before its next earnings announcement. But the integration will only be available to users in Canada and Latin America initially:

At this point, we plan to launch this initiative only in Canada and Latin America, as the VPPA (VideoPrivacy Protection Act) discourages us from launching our Facebook integration domestically. Under the VPPA, it is ambiguous when and how a user can give permission for his or her video viewing data to be shared. Read More »

Trans-Atlantic response to online piracy? (Updated)

Copyright Content owners should probably keep this in the wishful-thinking file for now but British communications minister Ed Vaizey hinted strongly this week at an emerging trans-Atlantic alliance to recruit ISPs more fully into the battle against online piracy.

Speaking at the Intellect Consumer Electronics conference in London, Vaizey called reports that a deal was in the works in the U.S. between leading ISPs and copyright owners to adopt a voluntary system of graduated response to online infringement a potential “game-changer” that could break a deadlock in similar talks underway in the U.K. Read More »