Tales of the Sausage Factory

Comcast & AT&T Apparently Smart Enough To Resist RIAA Invitation to Slit Own Throats.

As I’ve observed before, the IP Mafia have absolutely the worst judgment imaginable when it comes to their agenda. Now, the people who tried to kill the VCR, have just about killed internet radio, and who have sued dead people and sick children, have hit on another winning plan — using ISPs as enforcers.

Once upon a time and long ago, ISPs understood why it was important to be a common carrier and have no liability for this. That was why Congress included Section 230 and the “Good Samaritan” provision in the 1996 Telecom Act. It boils down to “when you act like a dumb pipe and just pass stuff from one place to another, we will not hold you liable for what happens.” For the same reason (as Bob Cannon explains over here on Cybertelecom), Congress generally immunized ISPs and created the whole “notice and take down” scheme in the Digital Millenium Copyright Act.

But all that was before our ISP industry boiled down to a handful of companies that were also either big content producers or video distributors dependent on the good will of big content producers. Suddenly, from the perspective of the IP Mafia, a whole new world of possible backroom dealings opened up. A world in which a few companies could make policies that would cover nearly the entire high-speed access market, and where they either shared common interest with the IP Mafia or could be “persuaded” to do so by threatening to withhold needed video content.

And so, the MPAA and RIAA walked right into my cunning trap, the fools! Alas, turns out Comcast and AT&T were too clever for me.

More below . . . .

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Posted in Fighting the IP Mafia, Tales of the Sausage Factory | Also tagged , , , , , , | 1 Comment (Comments closed)

My Thoughts Exactly

Where's the goddamn Magna Carta when you need it?

Here’s a story about some shadowy (nominally USian) government agency that’s going around shutting down websites it doesn’t like & snapping up the domain names.

Rankin, the Treasury spokesman, said Marshall was free to ask for a review of his case. “If they want to be taken off the list,” Rankin said, “they should contact us to make their case.”

That is a problematic system, Fitzgerald said. “The way to get off the list,” he said, “is to go back to the same bureaucrat who put you on.”

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Posted in "A Republic, if you can keep it", My Thoughts Exactly | Also tagged , , | 1 Comment (Comments closed)

Tales of the Sausage Factory

Update to last night's post on RIAA v. XM

Something I should have been clearer on but wasn’t. The Audio Home Recording Act, by its terms of course, applies to audio recording not video recording a la Tivo.

My concern for PVRs and DVRs is one of extension. It is an unfortunate tendency in the law for bad law in one area to bleed over into other areas. The bad trademark law around domain names had impacts into trademark law and fair use generally, before the pendulum started to turn.

So while a decision about the applicability of AHRA to the “XM +MP3” service generally, I worry that the emphasis on subscription service v. free service and the nature of the functionalities does. It does not seem to me much of a leap to apply the analysis used in this case to cases applying the Sony standard, as interpreted in MGM v. Grokster.

But, on reflection, that was not at all obvious in my post, which appeared to say that AHRA applied to video recording services. Sorry for any confusion.

Stay tuned . . . .

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Tales of the Sausage Factory

RIAA v. XM — Hard Cases and Clueless Judges Make for a Dangerous Mix

[Update: I’m aware the Audio Home Recording Act does not apply to video recordings. See my more detailed update here]

It’s an old cliche in Lawland that “hard cases make bad law.” To which I will now add: “and when you throw in clueless judges, the mix becomes positively toxic.”

Case in point, the recent decision by Judge Deborah Batts to deny XM Radio’s motion to dismiss a lawsuit by the RIAA for copyright violation. This case turns on the rather difficult interplay between the sections of the Copyright Act that provide a license for satellite radio, the immunity granted to equipment manufacturers under the 1992 Audio Home Recording Act, and the nature of the service offered by XM. It doesn’t help that, at the “motion to dismiss” phase, we gave the complainant (here the RIAA) the benefit of every doubt. To win, XM Radio would need to persuade Judge Batts that there is no set of provable facts under which the RIAA has a case.

Contrary to some of my colleagues (such as the eloquent and brilliant Art Brodsky in this post on the Public Knowledge website), I don’t think this was a slam dunk for XM. I actually think there is a complicated legal question here that needs to go forward for further analysis. That’s why I’m hiding over here on Sausage Factory for this one (if you check the Technorati rating for PK v. that for TotSF — you’ll understand what I mean by “hiding”).

Unfortunately, the language of Judge Batts opinion has — IMO — really, really, really bollixed things up badly. It calls to mind the awful results driven analysis in Jews for Jesus v. Brodsky when judges didn’t know squat about the internet and domain names, but sure knew they didn’t like these evil “cybersquatters” and boy were they gonna show ’em a lesson! The devil with the actual law or understanding the technology — we got us a heapin’ gavel of JUSTICE to whack you’re ass!

Batts opinion reads rather the same way J4J did. She doesn’t understand the technology and doesn’t feel any need to do so. All that matters is that someone seems to be making money that she thinks should go to the music mafia instead, and by God is she gonna get ’em! So she fixes on the wrong details and creates potential havoc for the likes of Tivo or anyone else making a PVR integrated into a receiver that picks up a subscription video or audio service.

The real issue in the RIAA v. XM case, and where Batts goes horribly, tragically, gut-churningly wrong, below….

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Posted in Fighting the IP Mafia, Tales of the Sausage Factory | Also tagged , , , , , | 1 Comment (Comments closed)
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