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About an hour ago, the Wall Street Journal confirmed that the RIAA has fired MediaSentry. That’s the company, as explained in B2B, that the RIAA has been using for gathering evidence in the lawsuits against accused file sharers.

One case mentioned in the book was that of Jammie Thomas, who was fined $222,000 in October 2007 for allegedly sharing 24 songs. The judge in the case subsequently set aside the jury’s verdict, as I noted in this blog last September. Thomas is currently awaiting retrial. Only this time, the RIAA would have to prove that she actually distributed music from her computer, not merely that there were music files on her hard drive (which was basis for setting the original verdict aside). Going along with this, the RIAA has claimed that it’s stopped filing new lawsuits, although suits already filed are still ongoing.

As hinted in chapter 6 of the book, we may be on a path to de-escalation in the copyright wars, at least in music, now that there are an increasing number of legitimate ways to obtain DRM-free tracks. Of course, the film industry still seems ready to continue the “file sharing as threat to civilization” drumbeat, and Congress still seems all too willing to listen.

According to an article in the Wall Street Journal (no login required) summarized by CNet¬†here, the Recording Industry Association of America plans to stop its odious practice of extorting thousands of dollars from teenagers and their parents for downloading small amounts of music. The vicious war didn’t work very well anyway, and created lots of ill will.

Under an agreement brokered by NY Attorney General Andrew Cuomo, enforcement for large-scale downloading will be transferred to ISPs, whom the RIAA will notify of suspected downloaders. The ISP will contact the alleged downloaders, ask them to stop, and terminate their service if they don’t.

This solution isn’t pretty either — there are downsides to having the ISPs be law enforcers — but it’s a lot better than the current “war on piracy.” As of this moment, the RIAA web site gives no indication that the war is over.

And the RIAA is going to save some money in the process.

What will now happen in the case of RIAA v. Joel Tenenbaum, in which Professor Charles Nesson is trying to have the Digital Millennium Copyright Act declared unconstitutional? Now here’s a dramatic speculation: the RIAA took a look at Nesson’s defense of his counterclaims, got scared, and dropped their lawsuits rather than running the risk of winding up with nothing at all.

Postscript. Some key sentences from the WSJ story:

… ISPs, which are increasingly cutting content deals of their own with entertainment companies, may have more incentive to work with the music labels now than in previous years.

The new approach dispenses with one of the most contentious parts of the lawsuit strategy, which involved filing lawsuits requiring ISPs to disclose the identities of file sharers. Under the new strategy, the RIAA would forward its emails to the ISPs without demanding to know the customers’ identity.

Though the industry group is reserving the right to sue people who are particularly heavy file sharers, or who ignore repeated warnings, it expects its lawsuits to decline to a trickle.

… The RIAA said it plans to continue with outstanding lawsuits.

If so, then the constitutionality question may yet be tested.

Second postscript. Two good observations from the blogosphere. First, by removing the enforcement mechanism from the judicial system and placing it in private hands (those of the ISPs), this agreement makes it possible for ISPs to set their own rules — for example, limiting bandwidth or cutting off service to parties doing lots of uploading or downloading, whether or not the activity is actually illegal. As they are cutting content deals with the music industry, this agreement actually empowers them to do something that is commercially advantageous to them.

Second, note this from the WSJ story:

Litigation, [the RIAA chairman] said, was successful in raising the public’s awareness that file-sharing is illegal, but now he wants to try a strategy he thinks could prove more successful.

But downloading isn’t any more illegal than photocopying is illegal. This is a paraphrase, and we don’t know exactly what the RIAA chairman said, but it’s an indicator of the RIAA’s success in muddying the issue that even the WSJ blandly promotes the false impression that a particular technological practice is unlawful.

A brief postscript on the release of Blown to Bits as a download under a Creative Commons license. First, by popular demand, we’ve posted the book under the Download tab both as chapter-by-chapter PDFs and as a single 22MB PDF of the whole book. And second, we should have mentioned that this download is the third printing, which corrects a variety of small errors in the original (the first and second printings were identical). The third printing should be appearing in bookstores soon (I haven’t yet seen a bound copy myself).

Alex Beam has a good piece today on the complexities of Google Books. This is Google’s program of scanning in books, in furtherance of its general corporate mission of organizing all the world’s information and making it universally accessible. And, of course, to draw more eyeballs to their advertising while they are at it. Nothing wrong with that, and the Books site is, for the time being at least, laudably clean.

Now there was a certain disagreement between Google and certain authors and publishers about whether what Google was doing was legit copyright-wise, and Google recently settled up. That’s an important story. But Beam notes that libraries are having a different worry — they worry about Google becoming the sole point of access to digitized books. Some alternative venues exist and are growing. Certainly we should hope they succeed, simply because corporate monopolies are dangerous.

Beam praises Harvard’s library for dropping out of the deal, because the agreement between Harvard and Google imposed too many restrictions on the redistribution of the digitized material. What he doesn’t ask is why Harvard signed a bad deal in the first place. And the answer is: there was a different librarian and a different president then, and almost no one was consulted about the terms.

In a 2005 post entitled How Harvard and Google Got In Bed Together,¬†the ever-vigilant Richard Bradley noted that Sheryl Sandberg, who negotiated the deal on Google’s side, had been the chief of staff to Larry Summers, who, one might reasonably imagine, had a lot to do with cutting the deal on Harvard’s side (though the name in the news at the time was library head Sidney Verba, not Summers). See also a later post, Harvard Goes Ga-Ga Over Google.

Sandberg has been quite visible during the past few weeks defending Summers’ record on women, while his name was still in the air as a possible Treasury Secretary (for example, writing about Larry Summers’ True Record on Women).

I don’t doubt the truth of a word of what Sandberg says about Summers and women. The issue of women faculty has been way overblown as the source of Summers’ downfall at Harvard. The more serious issues had to do with the way he mixed friendships and business to Harvard’s detriment, most notably the scandal surrounding Andrei Shleifer’s role in Harvard’s venture to help the Russian economy. This deal between Harvard and Google also may have seemed good for both parties but could have used a few more independent eyeballs to prevent the problems that the new Harvard administration apparently identified. Has Summers learned his lessons about the wisdom of a bit more consultation and transparency?

In a new low for abuse of copyright, Toyota has demanded that a site providing desktop backgrounds remove all images that contain a Toyota, Scion, or Lexus, even in a photography whose copyright is properly held by a third party. The site asked Toyota to identify which images in particular needed to be removed, and Toyota responded that if they had to go to the trouble of identifying what they were objecting to, they would have to be paid for their work.

What’s interesting about this case is what is being used is not the DMCA, but the threat of DMCA. To issue a DMCA takedown, Toyota would have to be specific. The company is apparently claiming that no one can use a photo in which one of their cars appears without infringing their copyright on the design of the car. Extraordinary (and stupid — don’t they want the free publicity of Toyota cars on desktops?).

Also, Professor Charles Nesson has been getting great publicity for his attempt to have the DMCA ruled unconstitutional, essentially because it is a criminal statute dressed up in civil garb. The penalties are extraordinarily high, and none of the protections available to criminal defendants are accorded to those the recording industry comes after. That is why so few cases make it to trial, and the industry can continue its attacks unabated by any risk of losing a case.

In a development that bears a family resemblance to the deal Google cut with the book publishing industry, Myspace has reached an agreement with one big part of the entertainment industry. Its users will be allowed to continue posting video clips from the Colbert Report and other TV shows without anyone getting hassled with DMCA takedown demands.

When the user posts a video, third-party software will identify it automatically, and place a visual tag on the clip, at the bottom of the screen. Advertising will be posted and the viewer will be given the opportunity to buy the whole episode. The revenue from the advertising and episode purchases will be split up among Viacom, Myspace, and the company that makes the software that identifies the videos. Everybody makes a little money (except, of course, the people who are doing the posting and the people who are doing the viewing!).

This deal is narrow — it affects only MySpace and Viacom. Google’s deal is broader — it is a deal with the group that represents publishers and authors — but the court hasn’t approved it yet. And of course, it covers only Google, not anyone else who might like to create a book search service. Do these deals show the outline of a more encompassing, public solution to the problems with DMCA and the Internet?

Siva Vaidhyanathan has a good summary of the deal, in the details of which may lie the devil. Like me, he regrets that we won’t now get any clarification on the limits of fair use in the digital age — though he thinks Google would have lost, which would have been a disaster since it would have strengthened the hand of the content industry to keep cracking down on people using small amounts of material for commentary or indexing.

He notes that as long as we rely on Google book search, it’s better for us if it works better. And it will work better — Google will be free to show larger excerpts from copyrighted works. But the deal also will firm up Google’s status as the dominant digital book depository. And in light of the anti-trust issue that raises, Siva notes an interesting coincidence: Google CEO Eric Schmidt hit the road campaigning for Barack Obama last week, just at the moment when the parties must have been hammering out the final draft of this agreement.

And finally, he cautions us not to get too excited about the deal until the court has approved it.

In a related development, Harvard has announced that its library won’t be extending its cooperation with Google to its collection of in-copyright materials, because the deal places too many restrictions on the ways in which they would be made available. Google has been digitizing only the out-of-copyright works in Harvard’s collection, though apparently Harvard’s position has been that Google’s entire project was legal. Not clear to me that Harvard’s decision poses any great problems for Google, since there tend to be multiple sources for copyrighted works.

The RIAA (Recording Industry) went after Joel Tenebaum, alleging that he downloaded seven copyrighted songs while he was a teenager. Thousands of teenagers get similar notices and pay up. Joel fought back, and the case has reached an extraordinary juncture. Joel is represented by Charles Nesson of Harvard Law School, Founder of the Berkman Center. The defense is arguing that the statute under which he is being charged is unconstitutional, among other reasons because the penalties are so high that it is essentially a criminal law in the clothing of a civil law.

Here is the news release I just received:

LEADING INTERNET LAWYER TO ARGUE COPYRIGHT THEFT DETERRENCE ACT UNCONSTITUTIONAL

Is the Constitution ready to embrace the reality of the Internet?

Cambridge, MA (October 2008) – The Recording Industry Association of America (RIAA) is in the process of bringing to bear the full might of its combined lobbying and litigating power. And one defendant, Joel Tenenbaum, is fighting back with the help of his mother, a leading copyright and internet lawyer, and a Harvard Law School cyberlaw class.  What makes this counterclaim remarkable is not the legal tit-for-tat that is inherent in any contentious issue, but rather the fact that this legal team has taken its argument to the next level: constitutionality.

Joel is being threatened by the RIAA with punishment of more than a million dollars for downloading seven songs. Charles Nesson and his team of Harvard Law students are counterclaiming for abuse of process.  They argue that the statute, which mandates damages of up to $150,000 for each willful download, is unconstitutional.

But is the Constitution ready to embrace the reality of Internet?

Nesson’s team alleges that the RIAA is abusing law and the civil process of the federal courts. “At its core this counterclaim raises a profoundly conceptual question: Is the law just the grind of a statutory machine to be carried out by judge and jury as cogs, or do judge and jury claim the right and duty and power of constitution and conscience to do justice?” says Nesson.¬† The counterclaim also alleges that the RIAA’s action in the name of “deterrence” constitutes an abuse of process used for the ulterior purpose of intimidating others by extreme example.

In the only previous situation in which an RIAA music-downloading case such as this has gone to trial, Chief Judge Michael Davis set aside a jury verdict of $221,000, declaring the statutory damage award to be “unprecedented and oppressive.”

Are there limits to how we deal with copyright in the age of ubiquitous information?¬† And that’s exactly the question they hope the courts will finally address.

For more information, please visit: http://blogs.law.harvard.edu/cyberone/riaa/.

——————-

The filings in the case contain some pretty stirring language, for example:

——————-

Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body. To members of the born-digital generation, for whom sharing music on the Internet is as commonplace and innocuous as driving 60 in a 55 mph zone, the prosecution of Joel Tenenbaum and others like him is wholly analogous to this hypothetical. Congress lacks the constitutional power to delegate such a prosecutorial function to a private police, which is the role that the recording companies and its industry organization, the RIAA, is embodying.

A huge sword that has been hanging over Google Books was lifted today, when the company came to terms with representatives of U.S. authors and publishers. Those groups had claimed that by scanning in copyrighted works and making them available in limited form, Google was infringing their copyrights. Google here explains how book search will work in the future. In essence, the company will add an option so you can buy access to the full, scanned version of a copyrighted work. You won’t be able to download it, but you’ll be able to access it any time you log into your Google account. Libraries will be able to buy institutional subscriptions. An independent rights registry will be created to figure out where the money should go, in the (very large) case of copyrighted works for which the copyright holder is unknown (orphaned works).

Many, many details will determine whether this is a good deal for society or not. A lot depends on the price points, where the kitty of undistributed money goes, and so on. Any time an important issue like this is settled out of court, it’s a two-edged sword. On the one hand, most people will continue to get the service they’ve gotten used to and the courts have not gotten in the way. On the other hand, the underlying legal questions have not been settled, and could come back in another form.

Update: The settlement involves payments by Google of at least $80 million up front. The full details are available here, including how the user payments will be divided among the parties going forward. Again, the bottom line is that Google never admitted to doing anything wrong and the publishers never agreed that what Google was doing was within “fair use,” so the most important copyright questions may come back to bite us another day.

Yesterday we blogged about the request by the McCain-Palin campaign that YouTube respond to takedown notices less automatically. YouTube has responded in the negative, stating (as I did) that the problem is the law, not YouTube’s manner of dealing with the opposing parties. Here is YouTube’s response; I find it pretty reasonable. The Electronic Frontier Foundation wishes YouTube would show a bit more willingness to ignore obviously spurious takedown notices, e.g. ones where the contested material is a few seconds of a news show.

An interesting question is whether political campaign ads should get some special treatment. McCain’s campaign argues that because of the time sensitivity of campaigns and the importance of the free flow of information to the electorate, there should be a higher standard for taking down a campaign ad. YouTube doesn’t agree. Neither does Chris Soghoian in a well-argued, passionate post: Stand in line, he tells McCain, along with all the other people who are being abused by inappropriate DMCA takedowns.