The Motion Picture Association of America has asked the FCC to give it a waiver of something called the “selectable output control” rules for cable boxes. As usual, this apparently minor request for a waiver of an obscure FCC regulation of unknown origin, governing a highly-technical and mind numbingly boring set of rules about cable set-top boxes, hides a bold power grab designed to rip off every owner of a Tivo, VCR, or other perfectly legal recording device available to consumers to engage in the legal practice of recording television programs to watch them later (“time shifting”).

For details on this latest effort to circumvent limits on government by outsourcing the process to an industry cartel, aka “outsourcing Big Brother,” see below . . . .
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“We have also learned that college students have used university networks to download 40% of all pirated movies, while eating yellow cake (aka ”Twinkies“).”

-- Dan Glickman, CEO of the Motion Picture Association of America (MPAA), Testimony Before the House Wholly Owned Subsidiary Subcommittee on Intellectual Property

As some of you may know, the MPAA ad RIAA have been pushing their wholly owned subsidiaries in Congress to pass rather draconian laws against those vile dens of vice and iniquity, colleges and universities (Or, as RIAA President Mitch Bainwol explained: “never will you find a more wretched hive of scum and villany.” He was promptly sued by ally MPAA CEO Dan Glickman). They have justified this on the basis of a 2005 report Commissioned by the MPAA and created by
LEK Consulting Services that purported to show that an astonishing 40% of industry loses from internet piracy could be traced to file sharing at universities. Because the MPAA refused to share either the methodology used or the underlying data, a number of folks expressed a healthy skepticism about this evidence. Nevertheless, a credulous Congress accepted this as “credible evidence” of a “weapons of mass file sharing” in our nations colleges and universities, and sought to impose heavy sanctions and possible invasion by federal troops.

The MPAA now admits it overstated the numbers a wee bit. According to this story, it turns out that the real number even using the data and methodology approved by the MPAA and LEK was 15%, not 40%. Further, as Mark Luker at EDUCAUSE points out, since the number was based on college students without regard for whether the activity took place on campus, the real number of files traded illegally over college networks is more like 3%. (And again, that's based on the MPAA's numbers and methodology as now disclosed, not confirmed by independent evidence).

Members of Congress — who uncritically accepted the MPAA's previous statistics despite the lack of any corroborating evidence, the refusal of the MPAA to disclose its data or methodology, and the utter ludicrousness of the number to anyone who actually knows anything about file transfers and the amount of bandwidth and computer powering it would take to even come close to the numbers MPAA estimated for college campuses — expressed surprise at the disclosure. “Wow,” said a Spokesman for a Senator from California who has vigorously supported the sanctions against colleges when she can take time away from supporting immunity for telephone companies who secretly spied on Americans based on Administration insistence this was “necessary for national security” and who voted to authorize the war in Iraq based on intelligence reports and statements by the Bush Administration that later proved to be filled with outright lies, questionable data, and utterly ludicrous statements questioned by the vast majority of reputable experts. “Who would think we'd fall for this again?”

Nevertheless, both California Senators and a majority of the California delegation to the House issued a joint statement that while the MPAA and RIAA evidence continues to turn out to be total self-serving bunk, support for a raft of bills that would curtail fundamental freedoms and cost tax payers billions in both direct costs and lost productivity remained strong. “We will continue to support whatever means prove necessary to end the scourge of piracy that do not impact the monopoly profits of the entertainment industry for as long as the threat against this industry — which produces more of our home state's jobs and revenues than you could possibly imagine — persists,” said the statement. “Sticking it to colleges and universities seems like a good way to do that even without any real evidence that it will help.” The statement was pointedly not joined by Rep. Zoe Lofgren (D-CA), who, in a separate statement, pleaded with her colleagues to “please get a Goddamn clue already” And to “stop embarrassing me, the State of California, and the Democratic Party.”

The MPAA blames the gross overstatement of internet piracy on college and university campuses — which it pushed aggressively for the last two years — on “human error.” The MPAA has promised a thorough investigation to determine what has went wrong. “We take this error very seriously and have taken strong and immediate action to both investigate the root cause of this problem as well as substantiate the accuracy of the latest report,” the group said in a statement.

In an unrelated item, the MPAA announced it would give LEK Consulting, which created the 2005 Report, the coveted “Oscar of Freedom” at this year's Academy Awards.

Stay tuned . . . .

For those wondering about the dust up over Google dropping Ads from Senator Susan Collins (R-ME) because she used Moveon's trademark in her ads, I reproduce below my post on the Public Knowledge blog. I don't usually to that kind of “repurposing” of my blog content, but this one seemed reasonably important. [Read More!]

According to this report on CNET, the Administration has suddenly discovered intellectual property as an issue. They propose that Congress consider The Intellectual Property Protection Act of 2007 (IPPA).

Among other things, the IPPA would create a new crime of “attempted copyright violation” (Section 4(a)) and criminalize cross border (or attempted cross border) copyrighted material even where the shipment is between individuals and not for public distribution. The Act would also expand the scope of the Economic Espionage Act (Section 7) and the forfieture penalties of the Digital Millemium Copyright Act (Section 6) while likewise including a new crime of “intent” to violate these existing statutes. The statute also enahnces penalties if the infringing material “knowingly or recklessly causes or attempts to cause serious bodily harm” (Section 12(a)).

Finally, and most significant to me, the proposed Section 13 enhances the ability of federal law enforcement officials to engage in “interception of wire, oral or electronic communications” as part of an investigation of these crimes.

Perhaps it is only a coincidence of timing, but I find it interesting that the Administration chooses to put this proposal forward just as its efforts to ram domestic spying legislation through Congress in the name of the “War on Terror” is running into serious trouble in the new Democratic Congress. Yesterday, the House approved an amendment to the funding for intelligence activities clarifying that the Administration must follow the procedures set forth in the Foreign Intelligence Surveillance Act (FISA) rather than claim that other authority or exigent circumstances allow it to engage in wiretaps for surveillance purposes. This follows last week's failed Administration effort to give telcos retroactive immunity for their role in Bush's domestic surveillance program.

While the Dems have shown themselves much more concerned with protecting civil liberties in the name of the War on Terror then the Republicans, the Dems have a known soft-spot for the intellectual property mafia. In one of the delightful ironies of the politics of special interest, aggressive civil liberties hawks like Dianne Fienstien and Barabara Boxer turn into chearleaders for the most draconian measures imaginable when it comes to “fighting piracy.”

Has the Administration found a new way to expand its domestic spying program? A way that will not only neutralize opposition, but turn its most suspicious opponents into enthusiastic proponents? How hard do any of us imagine it will be to secure a warrant for domestic spying under the cover of “intent to infringe” with the possible penalty multiplier of “intent to cause bodily harm.” Any “person of interest” the Administration would wish to target posses the means to commit this new “intent to infringe” crime if he or she has a broadband connection or even a laptop with a wireless card. In the name of investigating possible “copyright crimes,” the Administration will have free reign to sieze computers, cell phones, and other devices that might arguably contain infringing material, or that even enable someone to infringe if they have “intent” to download a single ring tone or page of text.

Note that the Administration would not even have to show probable cause that it believes that the suspect has infringed someone's work. They merely have to show that it is probable that the person in question has an intent to infringe. That's a rather low standard at the best of times. Coupled with the willingness of the federal judiciary to regard anyone with a broadband connection and a computer as a pirate out to pillage our noble entertainment industry, and you have a recipie for a domestic spying program that avoids all the nasty protections that FISA imposes to protect civil liberties.

I wish I could dismiss such concerns as paranoid ravings. But five years ago, I wouldn't have believed that the Administration and the telephone companies would work hand-in-hand to develop a secret domestic spying program to listen in on the private conversations of law-abiding citizens. I would never have believed that when exposed, not only would the Administration feel no shame, it would brazenly ask Congress to “correct” the problem by making such domestic spying legal — or that Congress might actually consider doing so.

So I have to wonder, why has the Administration suddenly become so all fired up about intellectual property? And just at the moment when its efforts to get generic broader domestic spying powers appear dead.

But mostly, I wonder whether the Democrats that have loudly proclaimed their love of civil liberties and their determination to resist domestic tyranny will sell us out for the benefit of their buddies in Hollywood.

Stay tuned . . . .

According to this article, Rep. Inslee (D-WA) and Rep. Manzullo (R-IL) have introduced The Internet Radio Equality Act. From my brief reading, it nullifies the previous decision of the Copyright Royalty Board that started this mess, replaces the current langauge with the same standard used for satellite radio, and sets transitional rates until the next CRB hearing under the new standard.

Inslee has long been a friend to tech and new media and a foe of media consolidaion. In 2006, he joined with Markey and others to sponsor a stand alone NN bill after COPE passed out of the House Commerce Committee. Inslee has also been a champion on unlicensed access in the broadcast white spaces and supported municipal broadband.

The folks at SaveNetRadio now have an action alert on their front page to get nfolks to contact their representatives to get this through and signed into law before the new rates kick in on May 15.

I am reminded of an old saying that one of the professors at my law school alma mater was want to say: “Dogs get kicked; hogs get et.” Here, SoundExchange decided to act like a hog. As a result, they may get their cushy litte standard completely reset.

At least until May 15, stay tuned . . . . .

[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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