Contracting Your Soul Away

Courtesy of Matt Elliott:

http://www.foxnews.com/scitech/2010/04/15/online-shoppers-unknowingly-sold-souls/

As an April Fool's joke, a British retailer that creates online games inserted an "immortal soul" clause ("you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul") into their online EULA just to show that no one reads these contract terms. They were right, because apparently 88% people agreed to potentially give up their soul.

Fortunately, the company stated that they will not be enforcing ownership rights over anyone's soul and will be emailing customers to nullify any claim on their souls.

Although, it could be argued that soul-snatching is somewhat unconscionable and therefore unenforceable, right? :)

MFN Clauses and Antitrust Issues

Courtesy of Omar Khayat:

http://www.allbusiness.com/retail-trade/miscellaneous-retail-retail-stores-not/4572888-1.html

Although this article was written a few years ago, it sheds some light on the interaction of MFN clauses and antitrust violations that is still true today.

Excerpt:

"While MFN clauses may be under the microscope, other experts wonder if some companies that own online services—especially those that drive hardware or advertising revenue by selling downloads—are anticompetitive by effectively setting a ceiling on music's wholesale price.

...

Simply setting the same prices by following an industry leader is not unlawful as long as prices are set independently. But setting prices can become unlawful when combined with something else—a 'plus factor,' Boies says. A contractual provision that binds an industry together in some way—such as an MFN clause—could be that plus factor, he adds.

Another factor could come into play when a seller with an MFN clause wants to know if the buyer is complying with that clause, even though competitors' contract terms and sales information are confidential. It is the 'wanting to know' how competitors price their products or 'wanting to verify' equal rates that could trigger an antitrust violation, Boies says."

Bogus Piracy Numbers

The Government Accountability Office took a swat at bogus piracy numbers this week. Ars Technica reports:

We've all seen the studies trumpeting massive losses to the US economy from piracy. One famous figure, used literally for decades by rightsholders and the government, said that 750,000 jobs and up to $250 billion a year could be lost in the US economy thanks to IP infringement. A couple years ago, we thoroughly debunked that figure. For years, Business Software Alliance reports on software piracy assumed that each illicit copy was a lost sale. And the MPAA's own commissioned study on movie piracy turned out to overstate collegiate downloading by a factor of three.

Can we trust any of these claims about piracy?

The US doesn't think so. In a new report out yesterday, the government's own internal watchdog took a close look at "efforts to quantify the economic effects of counterfeit and pirated goods." After examining all the data and consulting with numerous experts inside and outside of government, the Government Accountability Office concluded (PDF) that it is "difficult, if not impossible, to quantify the economy-wide impacts."

Of special interest to our class, Music Law in the Digital Age cites piracy numbers on page 105 from the Institute for Policy Innovation. Although these numbers are more conservative that the most ridiculed numbers above, Ars Technica does not have kind words for the Institute:

The content industries basically punted, pointing to three surveys done by a single guy, Stephen Siwek of the Institute for Policy Innovation. GAO looked specifically at Siwek's work, all of which seeks to model effects of piracy on the entire US economy. 

The government concluded that "most of the experts we interviewed" were reluctant to embrace Siwek's methodology; his approach comes from the Commerce Department, but it simply wasn't designed to measure what's being measured here. For instance, these studies ignore the obvious points that pirating goods leaves consumers with more disposable income, which is likely spent elsewhere in the economy. Effects on the economy as a whole, then, are terribly speculative and seem more likely to be simply redistributive.

I'm sure Bargfrede and Mak will fix p. 105 in the next edition. ;)

Music Downloads and Streams in $$$ Terms

Courtesy of Michael Kim:

http://gizmodo.com/5516791/music-downloads-and-streams-in-cold-hard-dollars

If my attempt to copy the image below doesn't pan out because of the template of the blog (much like my previous failed Youtube video postings), then please go to the original website via the above link!

"Just how much moolah do musicians earn from online downloads and streams? For the artist to earn the US minimum wage ($1,160/month), they need 12,339 iTunes downloads or 849,817 streams on Rhapsody.

Lady Gaga apparently made just $167 from 1 million streams of Poker Face on Spotify—to earn minimum wage from that service, an artist needs 4,549,020 streams, according to statistics. Brain-fodder for the aspiring musician, for sure."

Burning Man Licensing

EFF reports that:

the Burning Man ticket terms require participants to assign to the BMO—in advance—the copyright to any pictures they take on the playa; and limit participants' rights to use their own photos online by obliging them to take down any photos to which the organizers object for any reason and forbidding them from allowing anyone else to download or copy the photos (meaning, participants can’t CC-license their photos, or dedicate them to the public domain).

BMO argues it needs the copyright assignment and take-down rights in order to facilitate its DMCA compliance and avoid copyright infringement.

But is BMO liable for its participants web content? Possibly. Does the event itself qualify for a DMCA safe harbor provision?? Of course not; the event itself is not digital! Right?

Drama ensues.

Rewind: Pretrial Courtroom Drama in Tennenbaum's case

Courtesy of Emmie Lam:

http://www.wired.com/threatlevel/2009/01/riaa-fears-mani/

Going back to January 2009, the article enlightens us on some of the issues regarding the broadcast of pretrial arguments at the Berkman Center for Internet and Society in the Tennenbaum case. If you recall, Defendants (Joel Tennenbaum, represented by Charles Nesson) succeeded in obtaining permission to broadcast these arguments. However, it is interesting to see the objections of the Plaintiff (RIAA) to the broadcast. The objections were essentially the following: the broadcasts would be susceptible to manipulation and publicly presenting the arguments would taint the jury pool.

In granting the internet coverage, 1st Circuit Judge Gertner wrote, "at previous hearings and status conferences, the Plaintiffs have represented that they initiated these lawsuits not because they believe they will identify every person illegally downloading copyrighted material. Rather, they believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities. Their strategy effectively relies on the publicity resulting from this litigation."

So, basically, the RIAA wanted some publicity regarding the case, but only on their own terms?

DML re-tweet

RT: @marciahofmann: Upcoming conference at Stanford: Legal Frontiers in Digital Media. http://mlrc-digitallaw.stanford.edu/

Visual Artists also sue Google over copyright issues

Courtesy of Matt Elliott:

http://scitech.blogs.cnn.com/2010/04/07/visual-artists-sue-google-over-copyright-issues/?hpt=T2

Now visual artists are getting in on the legal action against Google's digitization of books:

"Photographers and illustrators filed a lawsuit against Google on Wednesday, claiming that the search engine displays copyrighted images in books it scans, without fairly compensating the people who created the images.

...

The Google Books legal action, initially filed in 2005, is expected to be settled soon; however, Wednesday's lawsuit over visual art on Google could keep the search engine in court on copyright issues for longer."

Yelp's Increase in Transparency

Straight from Yelp's own blog: http://officialblog.yelp.com/2010/04/announcing-steps-to-avoid-confusion-increase-transparency.html

In response to the recent allegations and lawsuits regarding Yelp's unfair business practices (see related post), the CEO has issued a blog post regarding two significant changes to its operations: 1) adding the ability for people to see the reviews filtered by their review filter and 2) eliminating the "favorite review" feature.

"Lifting the veil on our review filter and doing away with "Favorite Review" will make it even clearer that displayed reviews on Yelp are completely independent of advertising -- or any sort of manipulation. "

Furthermore, here is a video explaining how the review filter works. Well, it's also sort of an advertising tool, but it gets the job done:

EFF's DIY Petition for Google to Protect Your Privacy in Google's Digital Book Service

Courtesy of Emmie Q:

https://secure.eff.org/site/Advocacy?cmd=display&page=UserAction&id=433

EFF recommends that you petition for the following privacy protections in conjunction with your use of Google's Books:

"

Protect your reading records from government and third party fishing expeditions by responding only to properly-issued warrants and court orders, and by letting you know if someone has demanded access to information Google has collected about you.

Make sure that you can still browse and read anonymously by not forcing you to register or give personal information and by deleting any logging information for all services after a maximum of 30 days.

Separate data related to Google Book Search from any other information the company collects about you, unless you give it express permission.

Give you the ability to edit and delete any information collected about you, transfer books from one account to another without tracking, and hide your "bookshelves" or other reading lists from others with access to your computer.

Keep Google Book Search information private from third parties like credit card processors, book publishers, and advertisers."

Amiestreet.com: A viable competitor to iTunes?

Courtesy of Emmie Q:

Article: http://www.redherring.com///blogs/26165

Amiestreet.com is a website that sells Mp3s that widely range in price, depending on the popularity of each song. A quick visit to the site shows that songs are sold at prices of $0.50, 0.58, 0.59...just to list of few of the prices. This is significant difference from Apple iTune's relatively rigid, tiered pricing structure of its songs. Another interesting feature of Amiestreet.com is that the website "contracts with many artists directly, with the artist receiving roughly 70% of download profits, and amiestreet.com retaining 30%. "

However, Amiestreet.com sells mostly indie music content, while Apple sells both indie and mainstream media. Alas, it looks like Apple still rules in this media world. But Amiestreet.com may be a viable contender at least in the realm of indie artists.

Google's Dependencies

Unpacking Tech has a great post detailing the gauntlet of different gates facing Google's users. The closing of anyone of these gates could cut off users' access to the service:

The Google-China events of the past month have highlighted a truth that is worth reflecting on. For Google to generate cash, it needs users. Think about how users access Google. They're using a device (made by a device manufacturer), with an operating system (made by a software firm), running a browser (made by a software firm), which connects to google over one or more networks (run by a network operator, and regulated by one or more nations). Any of those five players can disrupt users' love fest with Google.

What's fascinating is that in the last week alone we've seen two of those links break down. China (regulator of networks in its borders) has used its power in ways Google doens't like; and after Google pulled out, China Unicom (China's second largest mobile operator; about 1.5x as big as Verizon Wireless) removed Google search capability from Android phones on its network.
***
The events of the past month have reminded us that we shouldn't take this access for granted. Look for it as a motivation behind many of Google's actions.

The disruptive threat coming from state governments includes the issues of intermediary liability we spoke about last class. In addition to China's firewall, and US copyright law, see Italy's defamation and privacy laws. Many other countries have forms of intermediary liability as well, each of which have the potential for disruption.

Threats to Google abound. Stay tuned-

Digital Due Process

http://digital.venturebeat.com/2010/03/30/digital-due-process-google-microsoft-privacy/

Interestingly enough, Google, AT&T and the ACLU are teaming up as part of a coalition to advocate for individuals' digital privacy. The current Electronics Communications Privacy Act is not clear whether our cellphone or cloud data may be searched by the government. At the very least, the current state of electronics privacy law does not guarantee our electronic data the same level of privacy as is given to our tangible data with respect to government access. As such, the Coalition is setting out to propose changes to the law that would give our electronic data the same level of protection as is currently given our tangible data.

This short video captures the gist of what the Coalition is setting out to do:

Beyonce's Youtube Page Blocked

Courtesy of Carly Newman:

http://www.eonline.com/uberblog/b173815_not_fierce_beyonceacutes_youtube_page.html

"By the looks of the Grammy-winning, multihyphenate's YouTube page, Sony has blocked all of B's music videos and replaced them with this message: "This video contains content from Sony Music Entertainment, who has blocked it in your country on copyright grounds."

The action comes on the heels of a copyright infringement issue involving Beyoncé's label, and as techie website Motherboard points out, no doubt stems from the floundering record industry and their desire to have a piece of the online video biz.

No word yet on when those pieces of art Beyoncé calls music videos—you know you love "Single Ladies (Put a Ring on It)"!— will be live on the web once more. We're just hoping more of our faves don't start vanishing from YouTube, too."

Google Parodies on The Onion

Courtesy of Scott Stroupe:

The Onion takes on our favorite DMLS topic: Google.

1) Google Responds To Privacy Concerns With Unsettlingly Specific Apology

Excerpt:

"I'd like nothing more than to apologize in person to everyone we've let down, but as you can see, many of our users are rarely home at this hour," said Google cofounder and president Sergey Brin, pointing to several Google Map street-view shots of empty bedroom and living room windows on a projection screen behind him. "And, if last night's searches are any indication, Boston's Robert Hornick is probably out shopping right now for the spaghetti and clam sauce he'll be cooking tonight."

2) The Onion video: Google Opt Out Feature

To opt out of Google tracking everything in your life, just move to a remote village!

Google and EU Court Ruling on Trademark Law

Courtesy of Scott Stroupe:

Google tells us via its official blog that in Europe it can sell
AdWords that are trademarks to businesses other than the trademark
owners. The European Court of Justice (the highest court in the EU on
matters of EU law) ruled that "Google has not infringed trade mark law
by allowing advertisers to bid for keywords corresponding to their
competitors’ trade marks." "The question before the court was whether
advertisers should be allowed to choose keywords freely when reaching
out to users on the Internet." Link below:

http://googleblog.blogspot.com/2010/03/european-court-of-justice-rules-in.html

But the NY Times expressed a more nuanced interpretation of the ruling:

The EU court was still concerned over source confusion: "Advertisers
'cannot, by using such keywords, arrange for Google to display ads
which do not allow Internet users easily to establish from which
undertaking the goods or services covered by the ad in question
originate." And: "The E.U. court said Google, too, could be held
liable if it were found to have encouraged trademark violations or
counterfeiting." Link below:

http://www.nytimes.com/2010/03/24/technology/24lvmh.html

Google Quits Censoring in China

Courtesy of Matt Elliot:

http://www.cnn.com/2010/TECH/03/22/google.china/index.html?hpt=T2

In response to the cyber attacks on Google originating from China in January 2010, Google has now officially stopped censoring searches in China. Instead, upon visiting Google.cn, you are now automatically directed to Google's Hong Kong search engine, which is NOT censored.

But how will this materially change Google's search business in China? According to the article, Google has only 13% of the search market in China, while a Chinese search engine that censors, Baidu, has 77% of the market. Even if Google's search engine is somehow completely blocked off from Chinese users in the future, it seems that the Chinese search market would still be adequately served by Google's China competitor, Baidu.

But it should be interesting to see how the Chinese government will respond to this. One speculator says: "China's next move may not be to just block access to Google but to go a step further: blocking all outside search engines from accessing Web information in China." Do you think they will go that far?

Also, YouTube, Google Sites and Google's Blogger apps have now been blocked in China.

Youtube Blog post: Broadcast Yourself

Courtesy of Sarah Sepasi:

http://youtube-global.blogspot.com/2010/03/broadcast-yourself.html

Apt time for this post, as it was written by upcoming lecturer, Zahavah Levine herself. In the post, Zahavah comments on the recent uncovered documents of the Viacom v. Youtube case (which are also mentioned in previous DMLS blog posts). I think the following paragraphs sums up Youtube's side of the argument pretty well:

"For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

Given Viacom’s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site. But Viacom thinks YouTube should somehow have figured it out. The legal rule that Viacom seeks would require YouTube -- and every Web platform -- to investigate and police all content users upload, and would subject those web sites to crushing liability if they get it wrong."

Google Aims to Conquer the TV too

http://www.nytimes.com/2010/03/18/technology/18webtv.html?partner=rss&emc=rss

http://www.nytimes.com/2010/03/18/technology/18webtv.html?partner=rss&emc=rss

"Google and Intel have teamed with Sony to develop a platform called Google TV to bring the Web into the living room through a new generation of televisions and set-top boxes.

...

The Google TV software will present users with a new interface for TVs that lets them perform Internet functions like search while also pulling down Web programming likeYouTube videos or TV shows from Hulu.com. The technology will also allow downloadable Web applications, like games and social networks, to run on the devices.

...

For Intel, the effort represents a way to get its line of energy-efficient Atom chips, currently found in laptops, into TVs. Intel executives have talked for a couple of years about creating PC-like TVs, contending that it will take the horsepower of a mainstream chip to play high-definition movies well on bigger screens. Any success with TVs would help Intel get into a new, high-volume market and possibly offset some of the pressure the company now feels from rivals creeping up into computers.

...

Sony, however, hopes to gain an edge over competitors by bringing out the first appliances and possibly TVs running the software, perhaps under a new brand. The Japanese consumer electronics giant, which owns Sony Pictures, is not expected to put its movie content directly on the devices but will probably have a link to a digital store"

Read Documents from the Youtube/Viacom Copyright Litigation

Courtesy of Matt Elliott:

To refresh your memory about this case: The complaint, filed in the U.S. District Court for the Southern District of New York, contends that nearly 160,000 unauthorized clips of Viacom's entertainment programming have been available on YouTube and that these clips have been viewed more than 1.5 billion times.

Recently unsealed documents from the case may be found here:

http://techcrunch.com/2010/03/18/read-the-just-unsealed-documents-from-the-youtubeviacom-case-here/

Courtesy of Emmie Q:

Here is an article that summarizes the contents of the documents from the case: http://www.sfgate.com/cgi-bin/blogs/techchron/detail?blogid=19&entry_id=59398

I don't want to spoil the juicy details but it appears that both Youtube and Viacom acted to antagonize the other side, which probably culminated into this lawsuit.