XM Satellite Radio is now accused of letting listeners illegally record the music it plays, violating the music publishers' sole distribution rights (link here). XM argues it is “protected from infringement lawsuits by the Audio Home Recording Act of 1992, which permits individuals to record music off the radio for private use. The judge said she did not believe the company was protected in this instance by the act.” She did not offer any reasoning for her judgment, but the case will now go to trial.

The judge must have had some "good legal reasons" for her opinion, but they are certainly not obvious from where this reader sits.

David Pogue who writes on computers for the NYTimes responded to the story posted just below with a bit of doggerel. I am posting it all because it is circulated in an email, not on the web.

1. From the Desk of David Pogue: Ode to the R.I.A.A. ==========================================================

Ever since I phased out my career as a Broadway arranger and conductor, I've tried to keep my toe in the showbiz world in my own peculiar way: I write new, tech-industry lyrics to old melodies.

Here's my very latest. It's a special tribute to the R.I.A.A., the Recording Industry Association of America - the organization of the record companies who've decided to fight music piracy by filing lawsuits. It goes to the tune of the Village People song "Y.M.C.A." Ready? Cue the disco drums!

"R.I.A.A."

Young man, You were surfing along, And then, young man, You downloaded a song, And then, dumb man, Copied it to your 'Pod, Then a phone call came to tell you:

You've just been sued by the R.I.A.A.! You've just been sued by the R.I.A.A.! Their attorneys say, you committed a crime, And there'd better not be a next time!

They've lost their minds at the R.I.A.A.! Justice is blind at the R.I.A.A.... "You're depriving the bands! You are learning to steal, You can't do whatever you feel!"

Know what? They're a lawsuit machine. They say so what If you're only thirteen? And you know what? They were equally mean To an 80-year-old grandma!

CD Sales have dropped every year, They're not greedy- They're just quaking with fear, Yes, indeedy- What if their end is near, And we download all our music?

They'd all freak out at the R.I.A.A.- No plastic discs from the R.I.A.A.! What a way to make friends! It's a plan that can't fail: Haul your customers off to jail!

And who'll be next for the R.I.A.A.? What else is vexing the R.I.A.A.? Maybe whistling a tune? Maybe humming along? Maybe mocking them in a song-!

(The sound of jackboots bursting into the room...handcuffs...muffled cries...a columnist being dragged away... repeat and fade.)

Randall Stross goes after Digital Rights Management (DRM) as invoked by both Apple and Microsoft (NY Times link here). He picks up on Melanie Tucker v. Apple Computer Inc. over what she calls factory installed crippleware for what Apple calls "FairPlay": "When you buy songs at the iTunes Music Store, you can play them on one and only one line of portable player, the iPod. And when you buy an iPod, you can play copy-protected songs bought from one and only one online music store, the iTunes Music Store."

Then he describes how MS does the same thing or tries - through its PlaysForSure copy-protection standard, which is now replaced by a new standard for the MS Zune player, not compatible with the old songs. As consumers, the "rights" enjoyed are few. As some wags have said, the initials D.R.M. should really stand for "Digital Restrictions Management."

Apple defends itself by claiming the music companies - Universal, Warner Music Group, EMI and Sony BMG insist on it. But there are independent companies that supply MP3 formatted songs. Stross thinks that may force users of DRM restrictions to give them up, but for the time being, Apple protects those songs as well on its iPod.

There is a lot more detail in the story, but Stross reaches an optimistic conclusion. He quotes Dave Goldberg, the head of Yahoo Music, who believes that "today's copy-protection battles will prove short-lived. Eventually, perhaps in 5 or 10 years, he predicts, all portable players will have wireless broadband capability and will provide direct access, anytime, anywhere, to every song ever released for a low monthly subscription fee." It has already happened in South Korea, but only after CD sales collapsed.

All true, but it doesn't get rid of copyright on music.

Slashdot reports that Pirate Bay, the widely celebrated file sharing website, is planning to buy Sealand, a former British naval platform in the North Sea in order to get round international copyright laws (link here). It previously established server sites in Holland and Belgium as well as its original home in Sweden. Sealand claims to be outside British jurisdiction by proclaiming itself a “micronation.”

For Pirate Bay's full history (two years), see (wikepedia). It argues it does not violate copyright because it only tells people where they can download the copyrighted material. Courts in many countries have ruled against the use of BitTorrent for this purpose, making Pirate Bay an accessory to crime in those jurisdictions.

Naturally Pirate Bay has infuriated software, motion picture, and recording companies which managed to take it down last spring but it was soon up again. It remains a perhaps forlorn hope of creating more sanity in our intellectual property law. But a lot of us are on its side on pure economic welfare grounds.

LINDA GREENHOUSE reports that the Supreme Court reversed the United States Court of Appeals for the Federal Circuit, the specialized court that hears all patent appeals, (NY Times link here). It ruled 8-to-1 that the holder of a patent license can sue to challenge the patent's validity without first refusing to pay royalties and putting itself in breach of the license agreement and subjecting itself to a patent infringement suit and triple damages if it loses. See the story for the specifics.

Greenhouse suggests this will make it easier for smaller start-up companies that rely on obtaining licenses for patented technology from bigger patent-owning companies to challenge the legitimacy of those patents. Who else has enough self-interest to sue?

The decision could be important but we will have to wait and see how it works in practice. Competition is usually good. Pray that is what we got.

Larry Lessig tells us that the election of Democrats, which was supposed to mean redefining copyright law, is not likely to mean much change. The House committee in charge is in the hands of a Democrat, Howard L. Berman, who "is a favorite boogeyman of advocates for copyright reform, many of whom say he is in the pocket of his Hollywood constituents" according to the NYTimes (link here). Lessig says a good bit more on his blog (link here). Look for his post dated Dec 24. Among other things, he wants to "to fit the legitimate objectives of copyright to assure that artists have the incentives they need to create great new work into the contours of digital technology."

I suspect most of us on this blog would like to see copyrights disappear but it isn't going to happen anytime soon. For now, we need to keep pointing out the deficiencies and push for incremental changes. Write your members of Congress, pointing out the bad results.

One of the criteria we use to judge intellectual property law is its effect on innovation. A recent study doesn't directly address this issue but it is suggestive because it says that only about ten percent of companies are highly effective in this area and that there are other ways than patents and copyrights to encourage innovation (link to NY Times article here).

The complete study is here, together with a short bulleted summary. The key finding is "Patents generally don't drive profits. Boosting R&D spending can increase the number of patents that a company controls, but there is no statistical relationship between the number or even the quality of patents and overall financial performance."

In a story you would prefer not to hear, talk radio station KSFO, a subsidiary of Disney and ABC radio, has forced a blogger to take down his site and cease sending audio clips from the programs to station advertisers on the grounds that it violated copyright (link to details on Daily Kos). His offense? He had sent advertisers clips of the talk-show speech which urged murder and torture of political opponents or trashed their products and suggested that they might want to consider pulling their ads on that station. He had some success in getting them to do so but decided to fold.

It is unlikely that Disney's suit would have succeeded in court but the defendant didn't have the resources to defend himself there. This is still another case in which copyright is used to offend the fundamental right of freedom of speech. Read the whole sad post.

Mike at Techdirt (link here) has a good piece on David Levine and Michele Boldrin's book Against Intellectual Monopoly (available on line here), focusing on the chapter on pharmaceuticals. I've been looking for a way to again highlight the book for this blogs readers. Chapter 9, to quote Mike, “completely destroys the idea that without pharma patents, there can be no pharmaceutical industry, by pointing to other countries that had no patent protection over pharmaceuticals until recently -- but still had absolutely thriving pharma industries. In other words, patents aren't needed for a pharmaceutical industry. However, if the patent system does recognize pharmaceuticals, are those patents really beneficial? Again, Levine's book hacks away at that notion, pointing out that, as with any government-granted monopoly, rather than creating real incentives for innovation, the patent system has created a situation where rent seeking occurs.”

Mike goes on to reference the publication of a GAO report downloadable as a PDF from his site, that concludes “there is a worrying trend in fewer new and innovative drugs being created, and also sees evidence that pharmaceutical companies are playing games to expand monopoly protections. It does note that many are concerned that patents are the cause of this, though it's clear that there are many factors playing into it.”

The comments on this post are worth reading as well–-lots of controversy.

One gets a sense of how complex copyright is by following the cases that come up in courts or in pretrial negotiations or in the news. Here is one, (a letter by Alex Curtis at Public Knowledge) responding to an editorial in the Wall Street Journal. I post the whole short piece because it makes the current law clear and emphasizes that the responsibility for identifying and claiming infringement is on the copyright holder.

Notice and Take Down' Lets Web Services Exist

our Dec. 1 editorial, "Google Search: 'Copyright'" missed crucial elements of the Digital Millennium Copyright Act (DMCA) and the concept of fair use when it comes to the posting of copyrighted material online.

The content industry fought very hard and largely won what it wanted in the DMCA. The trade-off for infringing content hosted by an unknowing service provider was essentially this: no liability for the service provider that expeditiously removes the infringing content after the copyright holder has been notified. This "notice and take down" provision allows most automated Web services like YouTube to exist. The take-down provisions effectively place the responsibility on copyright owners to actively identify infringement and notify the host services, all themselves. That's a fair trade considering they also have the weight of civil and criminal copyright law in their corner. It would be unworkable for YouTube or any other organization to have someone sit behind the curtain and approve every submission of copyright-able works.