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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Internet Radio Danger Deja Vu all over again

A little over a year ago we blogged here on wetmachine about the mean nasty RIAA evildoers and how and why they were planning to kill Internet radio because the RIAA is an organization dedicated to promoting corporate control of everything you can hear, and thus hates Net radio because it makes them burn, burn, BURN when you hear new music and artists are fairly compensated and everybody is happy.

Last year I thought we had put them in the box, but oh noes! they’re back like Freddy Kruger, as I found out by this letter from Tim from Pandora, asking for support in getting Senators to support an important bit of legislation under discussion RIGHT NOW. Go to for info on how to help save Net radio by giving the right message to your senators.

Information on how to contact Massachusetts Senators is here. I just called them. Kennedy’s office says they’re looking into it, reading the legislation. Kennedy had not announced a position yet. The guy on the phone told me they’re getting a lot of calls. Good. Let’s give them some more. Kerry is a co-sponsor, so he’s cool.

Please call your senators. If they’re not hip, help them to get hip. If they’re cool, say “thank you.” Please do it right away. It took me about 1 minute, total, for both calls.

MPAA Suffers “Intelligence Failure” On Piracy, No Weapons of Mass File Sharing On College Campuses

“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 . . . .

This war brought to you by the RIAA

This morning my Internet service was out. Usually, I call and get either a recorded message saying that there’s an outage in my area and that technicians have been dispatched, or a I get a voice menu that talks me through resetting my modem. They don’t let you talk to an actual person until you do this.

But today, I got right through to a person. He asked for my social security number, my wife’s social security number, and what I used the Internet for. I was specifically asked what I downloaded. After several more minutes of monkeying around, the putative technician (who must have recieved his degree from a Blackwater USA training camp), told me that “it was broken” and they’d send someone out next Tuesday. After several minutes of screaming at him, and then my wife screaming at him (the big guns), the service was back on.

Could this possibly be anything other than Homeland Security outsourcing the RIAA’s bidding to the telecom operators? It sounds absurd, but the weird thing is — we already they know that this has happened. There’s no question of “can this happen”, only a question of what happened here in this case.

Independent Musicians Launch “Rock The Net” Network Neurtality Campaign

My good friends at Future of Music Coalition (FMC) launched a major campaign today for net neutrality. Called “Rock the Net” (a name whose lameness caused some modest embarsement at the begining of the call, but sometimes you gotta grab that cliche by the horns so you can trample the wolves while swimming from the sharks), the campaign brings together major music groups to raise awareness of the net neutrality issue and press for network neutrality legislation (such as the Dorgan-Snowe bill pending in the Senate).

Why do musicians care about network neutrality? And who are Future of Music anyway? See below….

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Internet radio in immanent danger?

According to this story (via slashdot), some regulatory board that I’ve never heard of has handed down some ruling which, if it stands, could be the death knell of internet radio (or a t least of internet radio that originates in countries that adhere to this regime?).

As I type this I’m listening to the fantastic (OpenLaszlo application)Pandora — an internet radio station that astoundingly accounts for more than 1% of all internet traffic (??? can this be so???). I also listen to a lot of college radio stations streaming on the net.

Is this mavevlous technology about to be taken away from us by the RIAA goons? I don’t pretend to understand the legal, political, or technical issues. An opinion from Mr. Feld is clearly in order. What’s the word, Harold? Should I be panicking?

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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Stevens Bill Part II — The Bad Stuff (Broadcast Flag).

Like the thin cows of Pharoh’s dream devouring the fat cows, the bad parts of the Stevens Bill overwhelm the good parts. (My, I’m feeling biblical today. Perhaps because this legislation feels like such a prelude to Neal Stephenson’s Snow Crash.)

Leaving aside the video franchising provision, which I leave to my friends at Free Press,, and Alliance for Community Media, I find the damage the Stevens Bill would do to municipal broadband and network neutrality, combined with the broadcast flag mandates, make this bill a “must kill” in its current form.

Again, because there is just so much bad stuff here, I need to break it up into different chunks. First up, just when you thought you could buy a new TV in peace — THE RETURN OF THE BROADCAST FLAG!

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More Proof the RIAA Claims Are Bunk

Yet another study finding that P2P filesharing is not the reason people stop buying CDs, and that most music people listen to on their computers and MP3 players is legally obtained. More information here. Michael Geist, on of the genius people you never hear about in the U.S. because he’s like, you know, Canadian (actually, he’s from the U.S., but he lives and works in Canada) offers an excellent analysis here.

Of note, the study was conducted by the Candian Recording Industry Association, the RIAA’s Candian cousin, so one can assume that any bias toward result was in favor of finding that P2P is tantamount to theft.

Stay tuned…..