It’s been called, bluntly, “Internet censorship” by opponents. And now, US legislation that claims to curb piracy faces mounting challenges as that opposition grows, particularly as the White House warns it will block the bills.

Today, even as a flood of delightful new music toys become available, it’s worth pausing to consider why this matters – and, if you vote in the United States, to call your Senators and Representatives (again, if needed).

Many of us who create music believe the dynamic, user-driven nature of the Web is our best chance at a bright future. Free and open Internet communication is part of the fabric of societies around the world, and for music, offers a chance to share what we do, to discover new work, and to build our musical lives. They can be the basis of some of the most vibrant businesses that support musical practice, as well as contributing intangible but invaluable creative, technical, and spiritual input into what we make.

I wanted to collect today some of the best writing on the topic, from people who know this issue far more intimately than I do. Thanks to readers for their tips on this, as well.

Essential Reading

Ars Technica has some extraordinary coverage today. In particular, see:
Even without DNS provisions, SOPA and PIPA remain fatally flawed [Ars Technica] (goes into very detailed specifics of the legal issues)

What does SOPA mean for us foreigners? [Ars Technica] (The answer might surprise you: one of the flaws with SOPA is that the definition of “foreign” doesn’t even make sense. But in short, you don’t have to be in the US to be impacted by this legislation; foreign sites are specifically singled out for action. Do read the whole article; another huge, detailed report.)

How PIPA and SOPA Violate White House Principles Supporting Free Speech and Innovation [Electronic Frontier Foundation]

Google and Facebook and the like have come under attack as big corporations that benefit from Internet use and, some critics argue, from piracy. Why should they be using their deep pockets to talk about this issue? Google’s take today I think responds to that neatly. They have a beautiful infographic of a megaphone that counts all the critics – including law and Constitutional experts and human rights and pro-democracy groups – opposed to this legislation. And while I don’t know that Google always lives up to the “don’t be evil” mantra, I think digging into your deep pockets in this case is perfectly appropriate and defensible.
https://www.google.com/landing/takeaction/

The best report-in-a-nutshell comes from The Verge, and lawyer-journalist Nilay Patel:
Why The Verge and Vox Media are opposed to SOPA

In brief:

• Sites that host user-contributed content are threatened by weaker safe harbor rules and high compliance costs.
• Overzealous compliance by search and payment providers could make life miserable for the rest of us.
• Significant flaws in due process and seizure.

Those kinds of problems threaten the whole Internet ecosystem of user-contributed work and threaten democracy and the course of law. (Uh, other than that, no problem here.)

Musicians Take a Stand

The evidence at hand makes it all the more disturbing to see groups of labels, content companies, and so-called artist advocacy groups using our name – the musical community – to claim this legislation is somehow good for us. Unfortunately, the analysis of people working in law and policy outside the content industry tell us otherwise.

At least one artist and regular CDM reader and friend, TRICIL, is blacking out his own artist site. Here’s what he had to say:

You may have heard of America’s ludicrous Stop Online Piracy Act bill that’s being brought forth for legislation.

In concert with Wikipedia, Boing Boing, and a host of other sites, I’ve “blacked out” tricil.net in protest for the next 24 hours.

For my fellow Americans, you can take action by visiting http://tricil.net and clicking the “CENSORED” bar on the top right to email your local congressman and spread the word. This will also “uncensor” my site, but you can put the bars back and take a screenshot if you’d like.

If the bill passes, sites like Vimeo, YouTube, SoundCloud, and my own are all at risk. I’ve taken my material off of those sites for the next 24 hours to show what effect this legislation could have on independent artists.

Read more at americancensorship.org

Thank you for taking a stand with me,

TRICIL

Watch the Reasons Why It’s Bad

Clay Shirky has a great video out for TED:

CDM Under These Rules

I won’t be blocking out CDM today, as instead, I’d like to continue the conversation. But what could happen to a site like this one?

• We could be targeted by a unfair compliance issue because of a complaint about content on this site – without fair protections and due process to allow us to respond.
• We could see sites we rely on – from SoundCloud to Vimeo to YouTube – face restrictive rules and compliance that would threaten their livelihood, and strangle channels through which musicians and artists make their work known.
• In a severe case, a compliance issue could literally shut down the site forever, especially given our limited resources.

But that said, I’m less concerned about a threat to CDM as the rest of the Internet on which we rely, the dynamism that made this site worth producing in the first place. And as a citizen of the United States and a citizen of the Internet, I’m morally and ethically concerned about laws that deviate from Constitutional rule of law and common sense.

If you’ve found other reading on this issue or other ways to take action, I’d love to hear them.

Previously:
Opinion: US Internet Censorship Could Cripple Online Music Web; Where to Find Out More, Where to Act

And yes, you acted – and your action made a difference, as the opposition grows in strength and the legislation withers. Winning battles can sometimes be a good thing.

If you haven’t been following the (excellent) coverage elsewhere, just how bad is the “Firewall of the United States,” the draconian Internet dystopia misguided legislation in the US proposes to create?

That legislation is so vague, so far-reaching, so poorly-designed, that it potentially threatens all kinds of sites musicians regularly use. And little wonder: a backwards legislation process in the US has locked out the very Internet and tech companies that have until now been glimmers of hope in a stagnant US economy.

The crux of this issue is the impact on legal sites, and democracy and speech online. For an alternative view, the MPAA argument is that existing Digital Millenium Copyright Act safe harbor provisions would continue to exist under the new legislation, thus protecting legal sites – like this one. However, I find compelling the arguments of speech and legal policy advocates who point to differences in the way the enforcement mechanism works here, which could potentially invalidate that safe harbor and shift undue burden to publishers before they have time to respond.

Social networks, file sharing services, and other tools we use (lobbyists, for instance, call out even things like MegaUpload as “rogue”) are endangered.

The presumed answer, that “you’ll be fine if you have nothing to hide,” is the worst kind of defense for what can only be described as bald-faced censorship. Because complaints are guilty-until-proven-innocent, because the legislation is too broadly worded, the net effect is that any site publishing online could be brought down by a simple complaint – even from a competitor or aggrieved party. The history of “snitch”-based censorship of all the worst kinds is littered with cautionary tales of what happens when that’s the standard.

And that’s to say nothing of the potential for higher costs, negative growth, and legal burdens on the entire Internet service ecosystem on which sites like this one depend, not to mention new DNS security chaos triggered by turning the US – still the largest Web consuming country – into something that resembles China, Iran, and Syria.

An alliance of people who claim to speak in the name of musicians, content creators, and copyright holders are right now proceeding on a course that would destroy a lot of the most innovative tools that protect your livelihood. They have some reasonable intentions in mind – a justifiable fear of big sites that flaunt copyright rules to share anything. But they extend that into a policy that unjustifiably expands its reach to legal sites. That’s why:

Google / YouTube, Facebook, Twitter, and other sites that have helped us spread the word about our music are opposing it, afraid it could shut the entire sites down or usher in a new, more censored, shrinking network. (Heck, even LinkedIn and Mozilla are worried, and a site that shares resumes hardly seems the kind of “rogue” and pro-infringement villain the record industry keeps trying to paint as its critics.)

Kickstarter, the tool that has helped artists fund themselves and do preorder sales, is opposing the bill for fear a single instance of infringement could block everyone’s projects.

Tumblr, a key publishing platform used by many musicians and artists, warned its users via a dashboard that the legislation threatened their ability to express themselves online. Tumblr has a specific call to action.

Democracy activists worry that this silence voices of democracy around the world by blocking the tools they use to get around censorship (ironically, by creating similar censorship in what had been a country with online freedom).

The ultimate irony: because the SOPA legislation would block DNS and not IP addresses, it would do little to stem actual piracy of music and video. Instead, it threatens the freedom of the artists themselves to use these tools.

And again, because you could see an entire website blocked, not just a specific infringement, the legislation threatens to rob artists and musicians of tools on which they rely to promote their own music that they themselves own.

None of this has stopped the record industry lobbyists from remaining full entrenched in their position. For instance, this week, RIAA’s Senior Executive VP Mitch Glazier responded in an article headlines:

RIAA Question To Rogue Sites Critics: What Specifically Is Your Answer?

Glazier’s argument:

The next time you hear a vague, sweeping critique, backed by the platitude that of course intellectual property protections are supported, we encourage you to ask: what specific legislative proposal do you have that would meaningfully address this problem?”

Actually, no. In the event legislation is really, truly insane, it’s not in any way the burden of the critic of that legislation to propose an alternative. Here, let me illustrate:

The Protect Humanity from Deer Ticks Legislation, which proposes to … burn down all the forests.

Critic: I have a proposal. Let’s not burn down all the forests.

See? It’s concrete, it’s specific. Yes, our critique is “vague and sweeping,” because the legislation in question is vague and sweeping and wrong.

It’s absolutely, totally valid to make the concrete, legislative action not voting for a bad bill. The RIAA ought to know that; it’s pretty basic lobbying.

Yet again, though, those organizations let down their labels, who are now struggling to find new growth and revenue, with legislation that hurts those same members. Who is the rogue, anyway?

There’s far better explanation of this legislation than mine, and it’s not too late to act:
http://americancensorship.org/ [Electronic Frontier Foundation, with brilliant infographics and detailed, fair background reading]

Stop the Internet Blacklist Legislation [EFF]

Stop the Great Firewall of America [New York Times op-ed from New America Foundation senior fellow Rebecca MacKinnon]

I need your help–please. Call your congressperson? [Terrific, straightforward editorial from an engineer, Matt Cutts - one who happens to work at Google, but writing on his own time]

SOPA, controversial online piracy bill, gains support as lobbying intensifies [The Washington Post early this morning, which illustrates to me in its quotes from the bills' supporters just how out of touch they are]

Sham of SOPA hearings riles up key internet figures [Silicon Republic on how tech and Internet firms were locked out of the legislation's creation]

Great, clear Lifehacker story on how this works and what to do

Shocklee.com has done a terrific job of covering this story as it evolved, speaking of artists, as well as via their Twitter feed

OpenCongress.org links to information on the bill, full text of the bill, co-signers, actions, supporters and opponents, and even dollar-sign figures on how much lobbyists on each side of the issue (yes, including opposition) have given to elected officials.

From there, you can read the bills, make up your own mind, and if you’re a US citizen, talk to the people who represent you in Washington.

H.R. 3261, the Stop Online Piracy Act
S. 968, the Protect IP Act of 2011

Among Senate bill opponents, as you can learn from that site – even though the Senate bill is at least a little less draconian – American Association of Law Libraries, American Library Association, and Human Rights Watch.

If you’re a citizen of the United States, I would ask you to call your Representative now. Tell them calmly (remembering, they may even be on your side, and regardless, they’re your elected representative) what you think.

If you do call your Representative, let CDM know what their office says; feel free to leave that response in comments.

Patenting the use of all episodic media on the Web might sound absurd, but the US Patent and Trademark Office has granted just such a patent, to a company called VoloMedia. It’s a significant issue, one that could threaten the freedom of all media distribution online. Wherever you are in the world, you can help.

Intellectual property law was created in order to protect genuine inventions and innovation from exploitation. But predatory patents, based on bogus claims and attempting to stake out broad rights, threaten to do just the opposite.

Here’s a new idea: fight back.

Lawyers are the heroes this time. The Electronic Frontier Foundation’s patent-busting project aims to take down unfair patents that threaten common-sense uses of technology. A number of these have applied to music and audio. The EFF has already won a big victory against what had been the worst offender – media giant Clear Channel actually successfully patented recording live shows. (No, really — recording a live gig, then burning them on the spot. The EFF was able to bust that patent.) The advocacy group also scored significant victories against patents on sending and receiving online streams and encoding media. (If someone thought they could patent your ears and charge you royalties for hearing, they probably would.)

Lawyers alone haven’t won these battles. The EFF’s clever twist is to crowd-source its case, by getting people like you to help the group document “prior art” – in plain English, to prove that something existed before the patent. (Without basic chronology, I could claim to have discovered electricity.)

In short, you can help save the freedom of online content.

VoloMedia’s Bogus Patent – And Why It’s Dangerous

VoloMedia has been granted a patent for “providing episodic media.” The patent is broad enough to endanger any independent podcast or episodic media producer. Over the summer, Volomedia’s own Murgesh Navar sidestepped concerns about patent abuse to brag on the company blog about just how broad that claim was – that even non-RSS-based episodic media belong to them:

With specific reference to our newly issued 7,568,213 patent, it was filed in November 2003, almost a year before the start of podcasting.  This helps underscore the point, that for nearly six years, VoloMedia has been focused on helping publishers monetize portable media…. and has continued these efforts with the addition of a wide array of smartphone-based applications.  The patent that issued yesterday helps to tie together and reinforce the value of the various technologies and services that VoloMedia has developed to help accomplish this objective.  VoloMedia’s intent is to continue to work collaboratively with key participants in the industry, leveraging its unique range of products to further grow and accelerate the market.  Today, podcasting is 100% RSS-based.  However, the patent is not RSS-dependent.  Rather, it covers all episodic media downloads.  It just so happens that, today, the majority of episodic media downloads are RSS-based podcasts, which is why we titled our announcement the way we did.

Aside from the “before the start of podcasting” lie – and I believe “lie” is the only accurate word – it’s the implied threat that should send a chill down the spine of anyone using the Internet. Make no mistake about it: VoloMedia wants anyone doing podcasting, via any mechanism, to work with them. From that same blog entry:

The impact of a strong growing IP portfolio is such that we would expect new entrants into the podcasting arena to have a collaborative relationship with VoloMedia, just as do many of the current players.

From the patent itself, as approved, the technology VoloMedia claims to own is described as:

A method for providing episodic media, the method comprising: providing a user with access to a channel dedicated to episodic media, wherein the episodic media provided over the channel is pre-defined into one or more episodes by a remote publisher of the episodic media; receiving a subscription request to the channel dedicated to the episodic media from the user; automatically downloading updated episodic media associated with the channel dedicated to the episodic media to a computing device associated with the user in accordance with the subscription request upon availability of the updated episodic media, the automatic download occurring without further user interaction; and providing the user with: an indication of a maximum available channel depth, the channel depth indicating a size of episodic media yet to be downloaded from the channel and size of episodic media already downloaded from the channel, the channel depth being specified in playtime or storage resources, and the ability to modify the channel depth by deleting selected episodic media content, thereby overriding the previously configured channel depth.

Plain English translation: if what you’re doing with media has episodes, you owe VoloMedia.

If this patent were allowed to stand, and if VoloMedia were able to successfully enforce it, it would have a chilling effect on all Internet distribution. Regardless of the likelihood of their legal success, that underlies the fundamental problem with patent law – it has come completely unglued from reality. That alone ought to motivate people to fully document these issues and try to effect change.

Wondering why you haven’t heard of VoloMedia if they supposedly invented all episodic content online? Right now, they advertise “solutions” for advertising and analytics, an iTunes plug-in, and branded mobile apps for platforms like the iPhone. That’s it. RSS and previous formats date back to the 1990s, with the intention of covering episodic media across formats, just as the VoloMedia patent claims. These were published standards years before VoloMedia’s claim. That’s why demonstrating the details of this history become so important: they could strike down VoloMedia’s bogus patent.

Help Write Episodic Content’s History

VoloMedia’s patent twists the law, and common sense. But the same laws also provide for disproving a patent. If you can prove that an invention existed prior to the date for which a patent is claimed, you can undo the damage.

For that reason, the EFF is asking for your help. Knowing the readers of this site, I imagine there are people out there who know those details, or know people who do.

You’re all old enough to remember the Age Before Fall of 2003, right?

Here’s the call to action:

In order to bust this patent, we are looking for additional "prior art" — or evidence that the podcasting methods described in the patent were already in use before November 19, 2003. In particular, we’re looking for written descriptions of methods that allow a user to download pre-programmed episodic media like audio files or video files from a remote publisher, with the download occurring after the user subscribes to the episodes, and with the user continuing to automatically receive new episodes. You can read the entire prior art request here, and if you have something that could help, please send it to podcasting_priorart@eff.org or fill out the form on our Volomedia page.

For more information:

EFF Tackles Bogus Podcasting Patent – And We Need Your Help

Patent Busting Project: VoloMedia

Prior art serves a second purpose. Part of the reason predatory firms can abuse patent law is because technology’s history is so poorly written. I would like to see these kinds of bogus patents struck down, but I’d also like the real history behind today’s technologies to be told. So even beyond this legal battle, I hope that we begin to make the story of technologies like what is now called “podcasting” accurate, complete, and fair. Future generations of technologists will thank us.

Certainly, the VoloMedia patent, if enforced, would do tremendous harm to media today. The entire strength of the Web is that it doesn’t have to have homogenized distribution channels, that anyone can publish without centralized outlets or “collaborative relationships” with any big partner.

If you’ve never cared about intellectual property policy before, this might change your mind. No one should be allowed to un-invent the Internet.

What happens when people targeted by record industry legal intimidation fight back? What if they not only defend themselves, but go on the offensive, counterclaiming the industry is abusing the law and legal process? What if courts decide the industry really can’t hijack an unrelated PC belonging to someone’s Mom and Dad? That’s what’s at stake in a case in Rhode Island.

Now, the exciting conclusion to the face-off between record industry lawyers and a class full of Harvard Law students and their professor. Well – sort of. This is legal drama we’re talking, so it may be neither exciting nor conclusive.

Our Story So Far

The case was this: as part of ongoing threats of litigation, Rhode Island residents Arthur and Judie Tenenbaum faced legal pressure from the US record industry group, the RIAA, on behalf of their son, Joel, a grad student at Boston University. Joel is accused of sharing music files online. 7 songs allegedly shared translates to $1 million in damages, according to the industry’s arithmetic, but it may not be the damages that are really what’s in question.

Here’s where things get a little weird. The hearing yesterday in Rhode Island federal court addressed a motion by the record industry to force Joel’s parents to produce their home computer, so that the computer could be inspected for evidence of illegal file sharing.  That would have made no sense, given that Joel is off at grad school, Arthur and Judie didn’t own the computer when Joel lived with them, and even the RIAA isn’t alleging that piracy took place on the computer. (You could place his uncle under house arrest and seize his parakeet as a witness, too, if you’re going to get that tangential to the case at hand.)

The hearing yesterday was rescheduled to January 6, however, because the Tenenbaum’s lead counsel – Professor Charles Nesson from Harvard Law School – was not admitted to argue in a Rhode Island court. (There’s a legal question there; I don’t think it’s just that they hate the Red Sox.)

The industry responded with a motion to prohibit any use of the parents’ computer until January 6. (Yes, Merry Christmas to you, too, RIAA.) I’m not sure what that would have accomplished, but the judge denied their request.

So, bottom line: the Tenenbaums get to hang onto their computer until January 6, and we find out what happens later.

You can expect a good fight, however. The Harvard team aren’t just defending Joel: they have a counterclaim. The basic argument: the RIAA isn’t really recovering compensation. The goal, says the countersuit, is simply to make young people, parents, and schools afraid of computer use. They are looking for damages from the RIAA, claiming that, as a criminal statute, the “Digital Theft Deterrence Act of 1999” the RIAA is using as its weapon deserves a trial by jury – and in the meantime, the RIAA has abused the law and the civil process of the courts.

Coverage

Some reading on the story from elsewhere:

Legal Jujitsu in a File-Sharing Copyright Case [NY Times]

Billion Dollar Charlie vs. the RIAA [Boston Globe]

RIAA Vs. Web 2.0? Social Media and Litigation [Slashdot, on the use of social media to combat the RIAA]

Boston Illegal: Will the RIAA finally get what it deserves? [Robert Cringley editorial for InfoWorld]

Judge postpones hearing in key RIAA lawsuit [CNET News]

And for an extra oddity:

RIAA May Be Violating a Court Order In California [Slashdot]

What This is About

Before we get another heated discussion going, let’s consider what this case is really about. Forget for a second the record industry’s business, the real issues around piracy and the value of music online. Ultimately, this is simply the case of an industry group that has been allowed to run wild, using legal intimidation and excessive, heavy-headed techniques. Going after Mom and Dad’s unrelated PC is clearly an unnecessary invasion of privacy.

The problem is, the strategy only works until someone protests. The assumption is that applying ample legal pressure gets more would-be defendants to settle out of court, saving a real legal test and helping the RIAA demonstrate that it’s doing something. Critics have said just that for years, but this could be a high-profile repudiation of these techniques if the Harvard team can move forward.

And as for the larger issues about the industry and its business, well, what about that? The RIAA’s response to criticism, even from members and music content owners, has been that the ends justify the means. But what, exactly, is the group accomplishing on behalf of their member businesses? Is their case really so weak that they have to resort to intimidation?

Many musicians are indeed opposed to piracy – and also believe the value of music, and the relationship listeners can have with artists and labels, can protect music as a business. Music creators are aware how much income comes from relationships – from freelance work, from t-shirt sales, from teaching, from live shows, and the many ways artists and creators support themselves. The single-minded, obsessive focus on piracy that would drive the RIAA to these tactics in the exclusion of all else seems to come from some alternate dimension.

Of course, this kind of nonsense only short-circuits those discussions. And from a legal perspective, the central question remains: is what the industry doing even appropriate to the law and legal process. We’ll follow this one as it develops.

Music DRM may be a thing of the past, online sales may be growing, but that doesn’t mean the U.S. record industry has missed a beat in its ongoing legal and lobbying campaign against music piracy online.

The latest battle starts today in Rhode Island federal court. The difference this time: the RIAA and record companies will have to face a Harvard Law prof and his students. Prof. Charles Nesson and his team allege the industry is abusing the court system, unfairly making “examples” out of the people they’re suing, and invading privacy.

Whatever your feelings about the righteousness of litigation as a deterrent to piracy, the case in particular gets pretty strange. Rhode Island residents Arthur and Judie Tenenbaum face having their home computer seized as evidence, despite the fact that even the industry legal team doesn’t contend this particular computer was used for the alleged downloading. The couple’s son faces a stunning $1 million+ in possible damages, but only allegedly shared seven songs on Kazaa – and the couple didn’t even own the computer when their son lived with them.

The team will be up for interviews, so I’ll try to follow up – let us know if you have questions for them. More here:

RIAA v. Joel Tenenbaum @ the blog CyberOne: Law in the Court of Public Opinion [Harvard Law]

Updated: Early word is that the hearing has been rescheduled, Prof. Nesson isn’t admitted to argue in a Rhode Island court, and the judge (rightfully) denied the RIAA motion to look at Joel Tenenbaum’s parents’ computer, since it wasn’t involved. More official details forthcoming.

In other news, Jim Griffin of Warner Music Group continues to push a plan to offer a blanket license to campuses to avoid litigation by allowing students to pay a voluntary monthly fee to download music from file sharing services. It’s not entirely clear to me why this scheme continues to attack such ire online. Ars Technica rightfully says hold the kneejerk responses and wait for the details. There’s certainly a precedent: clubs, bars, concert venues, and the like already pay blanket license fees for performance rights, and the revenue is ultimately distributed to the people who own the work (think publishers and writers). That’s not to say the plan isn’t rife with potential problems, and it seems to me could even endanger efforts to encourage things like Creative Commons licensing. But without more details, it’s tough to criticize the idea without taking into account both its pitfalls and potential.

One thing everyone ought to be able to agree on, perhaps even some of the beleaguered record labels: ongoing litigation has been ugly and unproductive, and still doesn’t solve the underlying problem. With broad wireless Internet access on the horizon, even if I were to play devil’s advocate and assume I was an RIAA member wanting to stop campus sharing, it seems just scaring campuses into blocking these services isn’t really a solution.

And as artists, our primary concern ought to be that these responses aren’t doing what we most desperately need: establishing a real business model and promotional possibilities for emerging distribution online.