Digital Copyright Canada

In UMG Recordings v. Lindor, the District Judge has adopted the report and recommendations of the Magistrate Judge, which
-denied the RIAA's motion for discovery sanctions; and
-granted the RIAA's motion for voluntary dismissal without prejudice, without costs or attorneys fees.
Although the Court did not expressly refer to the defendant's motion for Rule 11 sanctions, it closed the case, and it is inferable from the decision that the motion was intended to be denied.

Memorandum and Order Dismissing Case, Denying Sanctions Motion

[Ed. note I can't really comment fully on the decision just yet, since the case is not yet final, but the Judge's decision is glaringly erroneous as a matter of law, and would be reversed on an appeal. If you read my Declaration in Opposition to the RIAA's motion carefully, Judge Trager's error will leap out at you. -R.B.]

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Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music playerTo contribute to Marie Lindor's legal defense, see below.

The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.-->

Over at ZDNet Government, Doug Hanchard turned his Webcam on himself yesterday (right) to discuss the question of whether the U.S. government should be doing more with open source.

Having followed this issue for several years now, I have something important to say about it.

It’s a make-or-buy decision.

The choice is not always a simple one.

Making stuff means taking responsibility for it. It means hiring people both to make it and maintain it. It means committing to spending money both today and tomorrow. It’s a policy that’s difficult to turn back from.

For many decades the U.S. government was a maker. Even when contracts were handed out for big projects, the government remained the general contractor. Over time it became responsible for hundreds of thousands of mid-level employees, paid on a GSA schedule, who were loyal to the idea of government doing things.

If it sounds like make-or-buy is a political choice, it is.

The Bush Administration was a buyer. I’m not just talking here about Halliburton and Blackwater. But throughout the government, and throughout the Administration, the attitude was it was better to buy what was needed than to take the responsibility of making it.

There were, the Bush Administration felt, sound reasons for this. Private contractors owed loyalty to their employer, not the government. Contractors could control employees in ways the government could not. The hope was that profit motive and flexibility would both save money and deliver good service.

This was carried into the IT sphere. I did several stories at ZDNet Healthcare about efforts by private contractors to destroy the VA’s open source VistA system — starving it of funds, driving away the best employees, centralizing contributions, and eventually replacing it through contracts.

My sources were former government employees. The ex-VA employees stayed in touch with former colleagues and got the story out. This was not a big story, but it held a lesson, namely the risk inherent in having government employees building vital infrastructure.

The Obama Administration has reversed this policy. Its appointees believe strongly in the value of open source, not only at the VA but elsewhere. The National Health Information Network, built by Harris Corp. under contract, is now lauded mainly for its use of open source software components. It’s called the Health Internet.

As Brian Klepper and David Kibbe wrote when this re-branding was announced, this becomes an issue of control. In this case, who will control health data interchange. In the larger context, who will control the systems which result from using open source.

Making things creates constituencies, within government, both on behalf of a project and on behalf of continued government funding. Some may argue this risk exceeds the value of using open source.

I disagree. I say we have run the experiment. We have tried making, and we have tried buying. I say making makes more sense in the long run, and that a government which only sees things in terms of the short time horizons of its political term is short-sighted indeed.

Oh, one more thing, Doug. Leave the facial hair to the experts. I think you’re handsome enough.

The reported Facebook release of a PHP compiler optimized for high-volume transaction services (like Facebook) is yet more evidence the company takes its open source responsibilities seriously.

It follows by just a few weeks its becoming a top-level sponsor of Apache. (What is Oprah Winfrey doing on a tech blog? Patience, grasshopper.)

Both moves represent good open source citizenship. Cynics will say it’s the least the company can do. But while PHP is open source, it’s not subject to a copyleft license. And in tough economic times it’s easy to justify keeping your hand in your pocket, far away from your wallet.

I argue that both moves serve an important business purpose. Facebook is targeting the Internet Generation, people who grew up with the resource (like my own kids, now 21 and 18). These consumers understand, as their parents did not, the obligations that come with benefiting from open source.

I’m not saying my daughter has a Richard Stallman poster over her bed. She doesn’t. (Although if you made one with black light it could probably make some money.) Something more subtle is at work. Everyone likes to believe the companies they support are good citizens. These are visible ways of proving that.

While copyleft licenses bring a sharing requirement to those who benefit from open source, there is seldom much compulsion involved. If your company adds a tweak to a GPL program and keeps it secret, the FSF police aren’t going to be banging on your door. (Give up the code. We have your server surrounded.)

But the brand equity of any service business is based in part on the public image it projects. I would argue that Facebook overcame MySpace in large part because of a perception that MySpace was trying to control consumers while Facebook had a more open attitude. With switching costs near zero reputation matters.

The fact that all this makes good business sense for Facebook should not, however, lead to the cynical assumption of “they’re just doing it for the money.” Contributions of code and cash for projects is a voluntary activity. The phrase “don’t look a gift horse in the mouth” applies.

The point is that in an open source world, how you treat open source communities can make a difference on the bottom line. When switching costs are zero, anything an Internet company can do to prove it’s a good Netizen is both useful and good.

It seems Facebook groks that. It’s a good thing. You get free code and you get free code, everybody gets free code.

(If you don’t think Oprah Winfrey made up in reputation more than those cars cost her, you don’t know business. And if you think she only did it for that reason, you are too cynical to succeed at it, business grasshopper)

I just learned that the excellent site, p2pnet.net, published by outstanding writer, digital music expert, and human being Jon Newton, is shutting down for lack of funds:

"p2pnet – last post"

Jon has been a great friend to "Recording Industry vs. The People" and to the victims of the RIAA's mean spirited litigation campaign. And he is a great friend to me.

I hope donations flow in, and/or he finds another way to continue his important work.

Thankfully, the financial entry barriers to publishing aren't what they used to be, thanks to the internet, so it probably wouldn't take too much to get back p2pnet.net back up on its feet.

Thank you, Jon. Good luck with everything. Hope to see p2pnet.net back soon.

Your friend,

Ray
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Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music playerTo contribute to Marie Lindor's legal defense, see below.

The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.-->

• The U.S. proposal for Internet enforcement has received considerable public attention, yet there are three proposals on the table that address digital enforcement and safe harbours (ie. intermediary liability).  One of New Zealand's negotiators reports that a fourth proposal is currently being formulated and that it could take six more months before this chapter is settled.
• In addition to safe harbour rules, the talks in Mexico also addressed DMCA-style issues such as anti-circumvention legislation.
• The Europeans continue to push for the extension of ACTA beyond copyright and trademarks to also include patents.
• Some countries have become more open to sharing ACTA documents in response to transparency concerns, but there remain some who insist that the discussions remain strictly confidential.  Both New Zealand and Sweden are on record as supporting greater transparency.

My Samsung microwave died last March. It makes sparks from the magnetron. I tried a bit to see if I could get a new one, but it's annoyingly difficult, since the magnetron is half the cost of the unit.

I'd really like to buy a microwave not-made-in-China. Sharp is reported to make them in Japan, assemble them in the USA.

But, I can not find a store that sells them. I'd really like to touch one before I buy it.

In SONY BMG Music Entertainment v. Tenenbaum, the Judge has scheduled oral argument of all of the outstanding motions for February 16th, at 9:30 AM.ELECTRONIC NOTICE of Hearing on [26] MOTION for New Trial or Remittitur (Civ. Act. No. 07-cv-11446, document #26), and all pending motions, including, Plaintiffs' Motion for Costs and Fees Under Rule 37(a)(5) (Civ. Act. No. 03-cv-11661, document #851); Plaintiffs' Motion to Compel Defense Counsel to Cease Unauthorized Recording Activities, to Cease Publication of Discovery Materials and for Sanctions (Civ. Act. No. 03-cv-11661, document #865). Motion Hearing set for 2/16/2010 09:30 AM in Courtroom 2 before Judge Nancy Gertner.(Molloy, Maryellen) -->*-->


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Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music playerTo contribute to Marie Lindor's legal defense, see below.

The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.-->

Everyone wants a piece of you these days: Google, Facebook, Flickr, Apple, AT&T, Bing. They'll give you free e-mail, free photo storage, free web hosting, even a free date. They just want to listen in.

And you can't wait to let them. They'll store your stuff, they'll organize your photos, they'll keep track of your appointments, as long as they can watch. It all goes into the "Cloud."

How we got here is quite a scary story. But nowhere near as scary as getting out again. Eben Moglen, a Professor of Law and Legal History at Columbia University and the founding director of the Software Freedom Law Center, warned you about privacy and the cloud before. At a public meeting of the Internet Society of New York on February 5th, Moglen will ask you to consider how much worse things have become since then and explain what you can do to reclaim your freedom in the era of Web 2.0.

What: Software Freedom Law Center Chairman and Columbia Law Professor Eben Moglen will speak on "Freedom In the Cloud: Software Freedom, Privacy, and Security for Web 2.0 and Cloud Computing."

When: Fri. Feb 5 2010 7pm-9pm

Where: Room 109, Warren Weaver Hall, 251 Mercer Street NYC (SW corner of West 4th) (See note below)

Webcast: http://www.livestream.com/isocny

Sponsors: ISOC-NY, NYU ACM, Brooklyn Law Incubator & Policy Clinic

You can access audio and video recordings of Eben's talk by clicking on the following links:

Audio: Speech

Q&A

Video: Speech

Q&A

My Samsung microwave died last March. It makes sparks from the magnetron. I tried a bit to see if I could get a new one, but it's annoyingly difficult, since the magnetron is half the cost of the unit.

I'd really like to buy a microwave not-made-in-China. Sharp is reported to make them in Japan, assemble them in the USA.

But, I can not find a store that sells them. I'd really like to touch one before I buy it.

It’s worth noting that the Apache Software Foundation last week released a major upgrade of its SpamAssassin e-mail filtering software.

ASF announced that SpamAssassin 3.30, the first major update since May of 2007, changes the way that rules are implemented. “Rules are now separate from the core product and are instead downloaded using sa-update, SpamAssassin’s automatic update software,” ASF announced, also noting that this download method was available starting with version 3.2 as an option.

SpamAssassin 3.30 also offers “support for methods and standards such as text based patterns, bayesian scoring, DNS based black and white lists, DKIM and SPF sender authentication, and email signature clearing houses.”

“The software utilizes a principle of identifying multiple reasons for classifying an email as spam to improve accuracy and decrease the chance of legitimate emails being incorrectly identified as spam,” ASF stated in a press release.

SpamAssassin is used in several commercial security solutions.

Doug Hanchard, over at ZDNet Government, offers a thoughtful and fair defense of the fear now gripping Internet security professionals following the allegedly Chinese attack on Google and others.

He concludes with a poll, asking readers whether they would accept having their CPUs registered as a condition for going online. This would make it possible to trace computer crime to its source, he suggests.

At last count sentiment was running 4-1 against. No surprise there. But surprising he thought to ask the question that way, because IPv6 has plenty of address space to give every phone, PC and Internet-connected toaster its own IP address.

In other words, his solution is at hand.

So why the pushback?

(Picture from Regentsprep.org.)

Possibly because a solution like this may indeed be China’s aim. China sees freedom as chaos, dissent as treason. It demands the right to police its people as its proprietary property.

In this I believe it has the support of its people. The history of the last century (above) argues that, without unity at its center, China collapses like a house of cards, and that foreigners use this collapse to hold its people down.

Words like freedom and democracy are middle class conceits, China argues. Without power, without rules, and without enforcement of those rules by the wisest and wiliest, the argument goes, society collapses.

Of course, we know better. Open source knows better. Open source, at its heart, is an argument for freedom. People freely choose to support open source projects, or not. The code is visible to all, and there is an assumption that it’s through transparency evil can best be contained.

Open source is derived from Internet values, and those are descended from American history. First the cooperation among professionals and groups that won the Cold War, and second the self-interested cooperation among equals upon which our republic was founded.

China’s values have made it an industrial powerhouse, but its ability to navigate the increasingly-rapid changes of 21st century technology must be questioned. Innovation requires open minds, open hearts, and free inquiry. Limiting the resource, limiting the people, also means limiting thought, limiting imagination, limiting innovation.

As change accelerates the cost of limiting innovation increases, unless a structure is in place that can strictly limit that innovation, channeling thought only in approved directions.

This is the choice the world faces. We know where China stands. We know where America stands. But the Internet can’t long survive half-slave and half-free. It will either become all one thing or all the other.

And in that larger battle, even well-meaning security professionals may, in their honest attempts to secure order, give the future of the Internet, and the world, to our adversary.