The industry's lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings.
"I couldn't believe it when I read that," says Ray Beckerman, a New York lawyer who represents six clients who have been sued by the RIAA. "The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright. But recently, the industry has been going around saying that even a personal copy on your computer is a violation."
Maybe I'm just unique, but I feel that it's this kind of hostility and contempt for the consumer that is doing in the music business.
Elisa writes:
]]>Let me tell you how many CDs I own: somewhere between 1000 and 1500.
Let me tell you how many hours out of the day I listen to my music (my every-single-song-was-legally-acquired music) via my iPod or computer: at least 10 hours a day in my car, at work and at home.
Let me tell you how many of my CDs I would listen to if not for my iPod: probably very VERY few. Even a multi-CD player would be too inconvenient to rely on during the work day. I like being able to turn on Shuffle on my computer or iPod and have music all day without thinking about it or messing with it. Pre-iPod I did not listen to CDs at work ever. I did listen to CDs in my car, but tended to have the same 6 CDs in there for weeks without changing them.
Let me tell you how that would affect my music-buying habits: It would greatly diminish them. I would forget about artists I liked, I would fall into a musical rut, instead of maintaining the really quite broad musical taste I have. And broad taste leads to broad music-buying habits. iTunes has already massively increased my music-buying habits by being so simple and so immediate. By exposing me to more music. And by making it easy for a constant variety of music to accompany my life most of my waking hours.
So, here's what the RIAA is just begging me to do: Never buy another physical CD, ever.
The industry's lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings.
"I couldn't believe it when I read that," says Ray Beckerman, a New York lawyer who represents six clients who have been sued by the RIAA. "The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright. But recently, the industry has been going around saying that even a personal copy on your computer is a violation."
Maybe I'm just unique, but I feel that it's this kind of hostility and contempt for the consumer that is doing in the music business.
Elisa writes:
]]>Let me tell you how many CDs I own: somewhere between 1000 and 1500.
Let me tell you how many hours out of the day I listen to my music (my every-single-song-was-legally-acquired music) via my iPod or computer: at least 10 hours a day in my car, at work and at home.
Let me tell you how many of my CDs I would listen to if not for my iPod: probably very VERY few. Even a multi-CD player would be too inconvenient to rely on during the work day. I like being able to turn on Shuffle on my computer or iPod and have music all day without thinking about it or messing with it. Pre-iPod I did not listen to CDs at work ever. I did listen to CDs in my car, but tended to have the same 6 CDs in there for weeks without changing them.
Let me tell you how that would affect my music-buying habits: It would greatly diminish them. I would forget about artists I liked, I would fall into a musical rut, instead of maintaining the really quite broad musical taste I have. And broad taste leads to broad music-buying habits. iTunes has already massively increased my music-buying habits by being so simple and so immediate. By exposing me to more music. And by making it easy for a constant variety of music to accompany my life most of my waking hours.
So, here's what the RIAA is just begging me to do: Never buy another physical CD, ever.
My big problem is that we are not being told about these things. Decisions about the software we run on our systems – the ones we saved hard for, or stole from some drunk yuppie last night – are being made, and implemented without our consent. Now, some legal smart arse will undoubtedly point out that it was all outlined quite clearly in Section 3, paragraph 17, addendum III b of the user contract but let’s be realistic, who the hell reads that all of that mumbo jumbo in the first place? Most real people don’t and when it comes to products from big brands, I often don’t. It’s not just that it’s mind-numbingly boring, but that it’s written in a way to make it impenetrable to normal folk.
One could say that it’s been embedded with an Anti-Interest rootkit that prevents you from reading more than a few paragraphs before you start questioning your own existence. The only way to stop it is to press the ‘Accept’ button. Consumers allocate a certain amount of trust to household name companies when they buy one of their products. We figure, maybe naively, that forking out that extra bit of cash for a real CD instead of some cheapo knock-off at a car boot sale, entitles us to a certain level of quality and protection. Not so. We have now gone from being valued customers to potential criminals. That’s it in a nutshell.
And, he points out, the ultimate consequence of Sony's treatment of its customers is that the customers will be more likely to go the illegal route and download pirated music -- Sony's customers will indeed become the "criminals" that Sony despises.
I'm reminded of a tenet of Eastern thought:
You tend to receive from life that upon which you focus. If you focus on bad things, then you tend to cultivate bad things in your life.
In other words, you reap what you sow. And the "why" is that your creativity is a powerful thing, and works in ways that you don't even realize. Put all your energy into positive endeavors and positive energy comes back to you.
Successful entrepreneurs know this -- they will be the first to tell you how once you commit to a venture, it's almost like doors are opened up before you and the universe conspires for your success. On the other hand, gloomy Murphys will tend to see the downside of any decision; they prove adept at snatching defeat from the jaws of victory.
In this sort of Zen-like way, we're seeing multinational megacorporations focusing on the negative, and therefore cultivating negative outcomes. Sony's corporate policies are being dominated by gloomy Murphys who see criminal intent in every customer. Meanwhile, whatever creative visionaries there might be in Sony's executive suites -- those who might see the new media developments as opportunities rather than threats -- seem to be having little or no impact on corporate decision-making.
The clichéd metaphor of corporate "dinosaur" seems especially apt in this context, for we see a large beast that is so angry that its feeding grounds are changing that its stomping out the food it has -- and seems to be too limited in intelligence to see the self-destructiveness of its actions.
That's not to say I'm predicting the fall of Sony over this. As entrenched as these corporations are in our global economy, it's pretty clear that they aren't going away any time soon.
But this does offer yet another clear indication that the market is changing in ways of which the megacorporations are not mentally, creatively or even lawyerly equipped to take advantage. Our economy is changing, and the old-time top-down hierarchical business models, where the consumer has little or no say in the vendor's business practices, are proving to be outmoded and, ultimately, counter-productive.
Sony is facing an expensive lesson in the new economics of the world. How many more lessons will it take, and how many other dinosaurs will have to suffer the same, before they join us rather than fight us?
]]>My big problem is that we are not being told about these things. Decisions about the software we run on our systems – the ones we saved hard for, or stole from some drunk yuppie last night – are being made, and implemented without our consent. Now, some legal smart arse will undoubtedly point out that it was all outlined quite clearly in Section 3, paragraph 17, addendum III b of the user contract but let’s be realistic, who the hell reads that all of that mumbo jumbo in the first place? Most real people don’t and when it comes to products from big brands, I often don’t. It’s not just that it’s mind-numbingly boring, but that it’s written in a way to make it impenetrable to normal folk.
One could say that it’s been embedded with an Anti-Interest rootkit that prevents you from reading more than a few paragraphs before you start questioning your own existence. The only way to stop it is to press the ‘Accept’ button. Consumers allocate a certain amount of trust to household name companies when they buy one of their products. We figure, maybe naively, that forking out that extra bit of cash for a real CD instead of some cheapo knock-off at a car boot sale, entitles us to a certain level of quality and protection. Not so. We have now gone from being valued customers to potential criminals. That’s it in a nutshell.
And, he points out, the ultimate consequence of Sony's treatment of its customers is that the customers will be more likely to go the illegal route and download pirated music -- Sony's customers will indeed become the "criminals" that Sony despises.
I'm reminded of a tenet of Eastern thought:
You tend to receive from life that upon which you focus. If you focus on bad things, then you tend to cultivate bad things in your life.
In other words, you reap what you sow. And the "why" is that your creativity is a powerful thing, and works in ways that you don't even realize. Put all your energy into positive endeavors and positive energy comes back to you.
Successful entrepreneurs know this -- they will be the first to tell you how once you commit to a venture, it's almost like doors are opened up before you and the universe conspires for your success. On the other hand, gloomy Murphys will tend to see the downside of any decision; they prove adept at snatching defeat from the jaws of victory.
In this sort of Zen-like way, we're seeing multinational megacorporations focusing on the negative, and therefore cultivating negative outcomes. Sony's corporate policies are being dominated by gloomy Murphys who see criminal intent in every customer. Meanwhile, whatever creative visionaries there might be in Sony's executive suites -- those who might see the new media developments as opportunities rather than threats -- seem to be having little or no impact on corporate decision-making.
The clichéd metaphor of corporate "dinosaur" seems especially apt in this context, for we see a large beast that is so angry that its feeding grounds are changing that its stomping out the food it has -- and seems to be too limited in intelligence to see the self-destructiveness of its actions.
That's not to say I'm predicting the fall of Sony over this. As entrenched as these corporations are in our global economy, it's pretty clear that they aren't going away any time soon.
But this does offer yet another clear indication that the market is changing in ways of which the megacorporations are not mentally, creatively or even lawyerly equipped to take advantage. Our economy is changing, and the old-time top-down hierarchical business models, where the consumer has little or no say in the vendor's business practices, are proving to be outmoded and, ultimately, counter-productive.
Sony is facing an expensive lesson in the new economics of the world. How many more lessons will it take, and how many other dinosaurs will have to suffer the same, before they join us rather than fight us?
]]>Stung by continuing criticism, the world's second-largest music label, Sony BMG Music Entertainment, promised Friday to temporarily suspend making music CDs with antipiracy technology that can leave computers vulnerable to hackers.
Sony defended its right to prevent customers from illegally copying music but said it will halt manufacturing CDs with the "XCP" technology as a precautionary measure. "We also intend to re-examine all aspects of our content protection initiative to be sure that it continues to meet our goals of security and ease of consumer use," the company said in a statement.
Note that customer satisfaction is not mentioned. We don't even get a crocodile tear.
I must say, I find their contempt for the customer -- or, at best, disregard for customer satisfaction -- astonishes me.
It apparently also offended the sensibilities of the new assistant secretary for policy in the Department of Homeland Security, Stewart Baker:
"I wanted to raise one point of caution as we go forward, because we are also responsible for maintaining the security of the information infrastructure of the United States and making sure peoples' [and] businesses' computers are secure. ... There's been a lot of publicity recently about tactics used in pursuing protection for music and DVD CDs in which questions have been raised about whether the protection measures install hidden files on peoples' computers that even the system administrators can’t find."
In a remark clearly aimed directly at Sony and other labels, Stewart continued: "It's very important to remember that it's your intellectual property -- it's not your computer. And in the pursuit of protection of intellectual property, it's important not to defeat or undermine the security measures that people need to adopt in these days.
"If we have an avian flu outbreak here and it is even half as bad as the 1918 flu epidemic, we will be enormously dependent on being able to get remote access for a large number of people, and keeping the infrastructure functioning is a matter of life and death and we take it very seriously."
Now that's an angle I hadn't thought of.
]]>Stung by continuing criticism, the world's second-largest music label, Sony BMG Music Entertainment, promised Friday to temporarily suspend making music CDs with antipiracy technology that can leave computers vulnerable to hackers.
Sony defended its right to prevent customers from illegally copying music but said it will halt manufacturing CDs with the "XCP" technology as a precautionary measure. "We also intend to re-examine all aspects of our content protection initiative to be sure that it continues to meet our goals of security and ease of consumer use," the company said in a statement.
Note that customer satisfaction is not mentioned. We don't even get a crocodile tear.
I must say, I find their contempt for the customer -- or, at best, disregard for customer satisfaction -- astonishes me.
It apparently also offended the sensibilities of the new assistant secretary for policy in the Department of Homeland Security, Stewart Baker:
"I wanted to raise one point of caution as we go forward, because we are also responsible for maintaining the security of the information infrastructure of the United States and making sure peoples' [and] businesses' computers are secure. ... There's been a lot of publicity recently about tactics used in pursuing protection for music and DVD CDs in which questions have been raised about whether the protection measures install hidden files on peoples' computers that even the system administrators can’t find."
In a remark clearly aimed directly at Sony and other labels, Stewart continued: "It's very important to remember that it's your intellectual property -- it's not your computer. And in the pursuit of protection of intellectual property, it's important not to defeat or undermine the security measures that people need to adopt in these days.
"If we have an avian flu outbreak here and it is even half as bad as the 1918 flu epidemic, we will be enormously dependent on being able to get remote access for a large number of people, and keeping the infrastructure functioning is a matter of life and death and we take it very seriously."
Now that's an angle I hadn't thought of.
]]>Sony's now infamous decision to use system destabilizing DRM malware in order to "fight piracy" (despite it being shockingly easy to defeat) has earned Sony a lawsuit or three. A new class action suit has been filed in Los Angeles Superior Court, another is expected in New York this week, and there have been a handful of rumblings in other countries, as well.
In California, the class action suit alleges that Sony's DRM has caused harm to computers, and that the company failed to disclose precisely what the DRM technology would do to users' computers. According to sources, the suit alleges three distinct violations of California law, including violations of statutes relating to deceptive trade practices and obfuscated technological measures deemed to be anti-consumer. The suit seeks an injunction against the sale of the effected CDs as well as monetary damages for those who purchased the discs.
The Electronic Frontier Foundation also is considering legal action and is seeking information from affected customers.
What's more, now the "Stinx-E trojan" has appeared to exploit the Sony DRM software's code to open a back door to PCs.
And not only that, Mark Russinovich reports that the DRM software itself is harder to uninstall than many malicious viruses.
What's even more, Cory at BoingBoing links to Darren Dittrich's report that the Sony CDs also infect Macs:
I recently purchased Imogen Heap's new CD (Speak for Yourself), an RCA Victor release, but with distribution credited to Sony/BMG. Reading recent reports of a Sony rootkit, I decided to poke around. In addition to the standard volume for AIFF files, there's a smaller extra partition for "enhanced" content. I was surprised to find a "Start.app" Mac application in addition to the expected Windows-related files. Running this app brings up a long legal agreement, clicking Continue prompts you for your username/password (uh-oh!), and then promptly exits. Digging around a bit, I find that Start.app actually installs 2 files: PhoenixNub1.kext and PhoenixNub12.kext.
Personally, I'm not a big fan of anyone installing kernel extensions on my Mac. In Sony's defense, upon closer reading of the EULA, they essentially tell you that they will be installing software. Also, this is apparently not the same technology used in the recent Windows rootkits (made by XCP), but rather a DRM codebase developed by SunnComm, who promotes their Mac-aware DRM technology on their site.
EFF has a partial list of infected CDs:
Trey Anastasio, Shine (Columbia)
Celine Dion, On ne Change Pas (Epic)
Neil Diamond, 12 Songs (Columbia)
Our Lady Peace, Healthy in Paranoid Times (Columbia)
Chris Botti, To Love Again (Columbia)
Van Zant, Get Right with the Man (Columbia)
Switchfoot, Nothing is Sound (Columbia)
The Coral, The Invisible Invasion (Columbia)
Acceptance, Phantoms (Columbia)
Susie Suh, Susie Suh (Epic)
Amerie, Touch (Columbia)
Life of Agony, Broken Valley (Epic)
Horace Silver Quintet, Silver's Blue (Epic Legacy)
Gerry Mulligan, Jeru (Columbia Legacy)
Dexter Gordon, Manhattan Symphonie (Columbia Legacy)
The Bad Plus, Suspicious Activity (Columbia)
The Dead 60s, The Dead 60s (Epic)
Dion, The Essential Dion (Columbia Legacy)
Natasha Bedingfield, Unwritten (Epic)
Ricky Martin, Life (Columbia) (labeled as XCP, but, oddly, our disc had no protection)
Several other Sony-BMG CDs are protected with a different copy-protection technology, sourced from SunnComm, including:
My Morning Jacket, Z
Santana, All That I Am
Sarah McLachlan, Bloom Remix Album
They also tell you how to figure out if another CD is infected.
(Now I need to call my sister. I'd bought Santana's album, but didn't care for it and gave it to her. I'm glad I didn't pop it into my Mac first ... but she has a PC. Ack!)
David Berlind on ZDNet notes that the bands whose CDs are being sold with the crippleware are not happy about it:
Z isn't the only band that's upset with the latest DRM developments. Last month, CNN.com reported how a member of the band Switchfoot whose DRM-protected CD debuted at No. 3 on The Billboard 200 was equally disappointed. Said Switchfoot guitarist Tim Foreman, "We were horrified when we first heard about the new copy-protection policy…. It is heartbreaking to see our blood, sweat and tears over the past two years blurred by the confusion and frustration surrounding new technology."
Even more demonstrative of the control points afforded to any market leading or dominating solution, the CNN story goes onto describe how Sony BMG is aware of the problems when it comes to transferring music from its DRM-protected CDs to iPods and is "urging people who buy copy-protected titles to write to Apple and demand that the company license its FairPlay DRM for use with secure CDs." Even though Apple's Fairplay may not have a monopoly yet, the company is behaving very monopolistically, an issue I discuss in another blog entry that I posted today.
Molly Wood's CNET column last week expressed outrage at Sony's behavior:
But this--using the tactics of criminals to invade our PCs without our knowledge and to expose us to further attack, just so you can keep us from, say, burning a mix CD and giving it to our friends--this is beyond the pale. And as many news sources are beginning to point out, there's some reason to think it might also be illegal, under the U.S. Computer Fraud and Abuse Act.
From the realm of unintended consequences, jasonn wonders if anti-virus companies could be prosecuted for removing the DRM software:
The logical question, regarding the Sony rootkit scandal and the upcoming removal tools from antivirus companies, is when will the DOJ prosecute antivirus companies for violating the DMCA? It's not a question of whether or not they violate the law when they supply removal tools for Sony's rootkit, aka Digital Rights Management software, which now exposes PCs to a virus threat. The question is whether or not the government will apply the law.
Isaac.Eiland-Hall is astounded by all this:
I mean really—I can’t imagine they thought they could get away with this.
I tell you what—if I had Sony stock, I’d be selling it like no tomorrow—because that’s what they might have.
Perhaps the simplest and clearest response comes from over By the Bayou:
Nice going. Do they just really hate their customers? As I said before: this is why I almost never buy CDs anymore.
At the very least, I think this is just another demonstration on why Cluetrain-clued-in businesses and open source approaches to technology have bright futures.
]]>Sony's now infamous decision to use system destabilizing DRM malware in order to "fight piracy" (despite it being shockingly easy to defeat) has earned Sony a lawsuit or three. A new class action suit has been filed in Los Angeles Superior Court, another is expected in New York this week, and there have been a handful of rumblings in other countries, as well.
In California, the class action suit alleges that Sony's DRM has caused harm to computers, and that the company failed to disclose precisely what the DRM technology would do to users' computers. According to sources, the suit alleges three distinct violations of California law, including violations of statutes relating to deceptive trade practices and obfuscated technological measures deemed to be anti-consumer. The suit seeks an injunction against the sale of the effected CDs as well as monetary damages for those who purchased the discs.
The Electronic Frontier Foundation also is considering legal action and is seeking information from affected customers.
What's more, now the "Stinx-E trojan" has appeared to exploit the Sony DRM software's code to open a back door to PCs.
And not only that, Mark Russinovich reports that the DRM software itself is harder to uninstall than many malicious viruses.
What's even more, Cory at BoingBoing links to Darren Dittrich's report that the Sony CDs also infect Macs:
I recently purchased Imogen Heap's new CD (Speak for Yourself), an RCA Victor release, but with distribution credited to Sony/BMG. Reading recent reports of a Sony rootkit, I decided to poke around. In addition to the standard volume for AIFF files, there's a smaller extra partition for "enhanced" content. I was surprised to find a "Start.app" Mac application in addition to the expected Windows-related files. Running this app brings up a long legal agreement, clicking Continue prompts you for your username/password (uh-oh!), and then promptly exits. Digging around a bit, I find that Start.app actually installs 2 files: PhoenixNub1.kext and PhoenixNub12.kext.
Personally, I'm not a big fan of anyone installing kernel extensions on my Mac. In Sony's defense, upon closer reading of the EULA, they essentially tell you that they will be installing software. Also, this is apparently not the same technology used in the recent Windows rootkits (made by XCP), but rather a DRM codebase developed by SunnComm, who promotes their Mac-aware DRM technology on their site.
EFF has a partial list of infected CDs:
Trey Anastasio, Shine (Columbia)
Celine Dion, On ne Change Pas (Epic)
Neil Diamond, 12 Songs (Columbia)
Our Lady Peace, Healthy in Paranoid Times (Columbia)
Chris Botti, To Love Again (Columbia)
Van Zant, Get Right with the Man (Columbia)
Switchfoot, Nothing is Sound (Columbia)
The Coral, The Invisible Invasion (Columbia)
Acceptance, Phantoms (Columbia)
Susie Suh, Susie Suh (Epic)
Amerie, Touch (Columbia)
Life of Agony, Broken Valley (Epic)
Horace Silver Quintet, Silver's Blue (Epic Legacy)
Gerry Mulligan, Jeru (Columbia Legacy)
Dexter Gordon, Manhattan Symphonie (Columbia Legacy)
The Bad Plus, Suspicious Activity (Columbia)
The Dead 60s, The Dead 60s (Epic)
Dion, The Essential Dion (Columbia Legacy)
Natasha Bedingfield, Unwritten (Epic)
Ricky Martin, Life (Columbia) (labeled as XCP, but, oddly, our disc had no protection)Several other Sony-BMG CDs are protected with a different copy-protection technology, sourced from SunnComm, including:
My Morning Jacket, Z
Santana, All That I Am
Sarah McLachlan, Bloom Remix Album
They also tell you how to figure out if another CD is infected.
(Now I need to call my sister. I'd bought Santana's album, but didn't care for it and gave it to her. I'm glad I didn't pop it into my Mac first ... but she has a PC. Ack!)
David Berlind on ZDNet notes that the bands whose CDs are being sold with the crippleware are not happy about it:
Z isn't the only band that's upset with the latest DRM developments. Last month, CNN.com reported how a member of the band Switchfoot whose DRM-protected CD debuted at No. 3 on The Billboard 200 was equally disappointed. Said Switchfoot guitarist Tim Foreman, "We were horrified when we first heard about the new copy-protection policy…. It is heartbreaking to see our blood, sweat and tears over the past two years blurred by the confusion and frustration surrounding new technology."
Even more demonstrative of the control points afforded to any market leading or dominating solution, the CNN story goes onto describe how Sony BMG is aware of the problems when it comes to transferring music from its DRM-protected CDs to iPods and is "urging people who buy copy-protected titles to write to Apple and demand that the company license its FairPlay DRM for use with secure CDs." Even though Apple's Fairplay may not have a monopoly yet, the company is behaving very monopolistically, an issue I discuss in another blog entry that I posted today.
Molly Wood's CNET column last week expressed outrage at Sony's behavior:
But this--using the tactics of criminals to invade our PCs without our knowledge and to expose us to further attack, just so you can keep us from, say, burning a mix CD and giving it to our friends--this is beyond the pale. And as many news sources are beginning to point out, there's some reason to think it might also be illegal, under the U.S. Computer Fraud and Abuse Act.
From the realm of unintended consequences, jasonn wonders if anti-virus companies could be prosecuted for removing the DRM software:
The logical question, regarding the Sony rootkit scandal and the upcoming removal tools from antivirus companies, is when will the DOJ prosecute antivirus companies for violating the DMCA? It's not a question of whether or not they violate the law when they supply removal tools for Sony's rootkit, aka Digital Rights Management software, which now exposes PCs to a virus threat. The question is whether or not the government will apply the law.
Isaac.Eiland-Hall is astounded by all this:
I mean really—I can’t imagine they thought they could get away with this.
I tell you what—if I had Sony stock, I’d be selling it like no tomorrow—because that’s what they might have.
Perhaps the simplest and clearest response comes from over By the Bayou:
Nice going. Do they just really hate their customers? As I said before: this is why I almost never buy CDs anymore.
At the very least, I think this is just another demonstration on why Cluetrain-clued-in businesses and open source approaches to technology have bright futures.
]]>