Managing Rights Management

Comcast Capitulates On Net Neutrality

According to this NYTimes article and other sources, Comcast has said that it will move to application neutral network management and disclose publicly its bandwidth management techniques. Tests by the Associated Press and the Electronic Frontier Foundation (among others) showed that Comcast was disrupting P2P traffic with forged packets.

The company initially veiled its traffic-management system in secrecy, saying openness would allow users to circumvent it. But on Thursday, Werner said the company would ''publish'' the new technique and take into account feedback from the Internet community.

Comcast has been hampering the BitTorrent file-sharing protocol, which together with the eDonkey protocol, accounts for about a third of all Internet traffic, according to figures from Arbor Networks. The vast majority of that is illegal sharing of copyright-protected files, but file-sharing is also emerging as a low-cost way of distributing legal content -- in particular, video.

EXCLUSIVE - Macrovision's Eric Rodli Comments On Slysoft's Claimed Break of BD+

As noted here yesterday, Slysoft claims that it's AnyDVD (HD) 6.4.0.0 software will remove the BD+ security component of Blu-ray HiDef optical discs. When asked for a comment, Eric Rodli, Macrovision's Executive Vice President & General Manager of Entertainment, had this to say via email:

“Macrovision does not comment on specific techniques or procedures that may directly impact the BD+ security technology.  BD+ is a security response system designed to react to security attacks, not prevent them entirely.  As part of this system, updated BD+ security code is continuously developed so that BD+ customers obtain ongoing value from the use of this technology.”

One of the major benefits of BD+ is that it is programmable security. Thus the cat and mouse game between those who apparently encourage piracy and the major studios and their technology partners remains intact.

Verizon Set To Improve Legal P2P File-sharing

According to the AP and NYtimes, Verizon is set to announce later today support for legal P2P filesharing companies and applications. Working with companies that use P2P and researchers at Yale University, Verizon will reportedly help P2P applications make more efficient use of the Net.

Verizon shared details about the structure of its network with the researchers and Pando in the ''P4P Working Group,'' created last summer, and they together created a system that connected users not randomly, but to other users close by.

In a traditional P2P network, if a Verizon customer downloads a file, only 6.3 percent of the data will come from another Verizon customer in the same city, said Doug Pasko, senior technologist at the company. In the ''P4P'' trial, 58 percent of the data came from nearby Verizon users, vastly reducing the company's cost of carrying the traffic.

Morning Session Main Points

This morning's session boiled down to whether Comcast and cable operators can manage their network by discriminating against specific applications such as Bit Torrent. Some argued that such discrimination is OK as long as the application discrimination is disclosed to consumers. Others argued that in a duopoly, disclosure isn't sufficient.  Therefore, Comcast and other, mostly cable ISPs, should be prevented from discrimination against specific apps.

It was also noted that the deep packet inspection technologies apparently being used to interfer with P2P traffic can also be used for content filtering and abridgment of speech not that anyone is doing that in the US.

We're off to the engineering session.

Markey's Comments

Congressman Ed Markey's comments include an emphasis on free markets as the foundation for solving bandwidth and pricing issues. This should be No Country For Old Broadband. And Bit Torrent should not be Bit Trickle.

Also, check out the SaveTheInternet.com site and their FAQ on Net Neutrality.

Blogging From The FCC Hearing on Net Neutrality

I'm at the Havard Law School today. Thanks to the Berkman Center for Internet & Society, the FCC is conducting a public en banc hearing at the Harvard Law School on Net Neutrality (NN) and broadband management. There will be a live audo feed for those interested. I'll be blogging comments from time to time.

Switzerland Warns File Trackers

InfoWorld reports that the Swiss government has warned Logistep, a company that tracks file sharers, that its tactics may be illegal under Swiss law. Identifying file sharers is part of global antipriracy efforts that in the view of some compromises the privacy of individuals.

Logistep, which supplies information on suspected file sharers to law firms around the world for use in copyright violation cases, has until Feb. 9 to respond to the Federal Data Protection and Information Commissioner (FDPIC), said Marc Schaefer, the agency's legal advisor.

Under Swiss law, the identity of a subscriber to an ISP can only be revealed during the course of a criminal case, not a civil one, Schaefer said. The IP address of a computer controlled by the subscriber is considered "personal" information.

Comcast P2P Traffic Interference Update

[Tip o' the hat to Dave Farber's IP list] A detailed and useful EFF report on Comcast's use of packet forgery and other techniques to interfere with P2P traffic is here. The report says that  the consequences of packet forgery include:

Comcast's interference is potentially troubling as well to the extent it may hobble potential competitors deploying next-generation video distribution services. BitTorrent Inc., for example, now distributes films under license from Hollywood movie studios and thus competes with Comcast's cable TV products. Similarly, Vuze, which recently filed a petition with the FCC for rule-making regarding Comcast's interference practices, also sells downloads from a huge library of licensed content, using BitTorrent as a distribution mechanism. Other companies and products, such as Joost and Miro, also rely on P2P protocols that are similar to those that are being impeded by Comcast.... [footnote omitted]

Writing on Alternet.org, Annalee Newitz says about Comcast's interference:

Goldman Sues PirateBay For Lost Royalties On O.J. Simpson Book

The Associated Press reports that Fred Goldman, father of slain Ron Goldman, is suing the Swedish site The Pirate Bay over alleged lost royalties from O.J. Simpson's book, If I Did It: Confessions of the Killer.

Although Goldman's attorneys have sent a letter demanding the Web site's operators stop posting the book, the defendants have indicated "they are not subject to the laws of the United States," the lawsuit said.

The lawsuit seeks to recover profits from the "illegal publication" and suggests The Pirate Bay receive advertising money from such American companies as Wal-Mart, Target, Jamster and The Wall Street Journal.

FCC Urged to Stop Comcast Internet Blocking

CNet reports that a coalition of Internet scholars and interest groups has petitioned the FCC to stop Comcast from continuing to disrupt P2P traffic on their network. Sadly,

But the truth is there isn't much that the FCC can do at this point. Under the current regulations and laws, the FCC has little to no power to do anything, even if it becomes blatantly obvious that Comcast is intentionally blocking traffic. The reason is simple. The FCC Internet policy is simply that. It's a policy. And there is no real enforcement muscle behind it that would require Comcast to do anything. So until a Net neutrality law is passed or the FCC imposes some kind of regulation or rule, which Chairman Kevin Martin has been adamantly opposed to doing, not much is likely to come of this complaint.

It would be outstanding if someone could find a rationale for seeking an injunction against Comcast to prevent this kind of disruption.

I'm not sure that they interfere only with BitTorrent traffic. My file transfers with another Comcast subscriber using AOL's AIM slow down to a crawl most of the time.

Comcast Admits Delaying Some Traffic While Confessing to Some Blocking

In response to accusations by the Associated Press and EFF that it interrupts certain P2P traffic on its network, Comcast denied blocking BitTorrent traffic. Instead, the nations largest ISP said that it employs traffic shaping technologies to manage bandwidth during peak traffic times.

According to the Associated Press, however, a Comcast spokesperson acknowledged that it does exactly what the AP and EFF accused it of doing:

On Tuesday, Mitch Bowling, senior vice president of Comcast Online Services, added a nuance to that statement, saying that while Comcast may block initial connection attempts between two computers, it eventually lets the traffic through if the computers keep trying.

"During periods of heavy peer-to-peer congestion, which can degrade the experience for all customers, we use several network management technologies that, when necessary, enable us to delay — not block — some peer-to-peer traffic. However, the peer-to-peer transaction will eventually be completed as requested," Bowling said.

The explanation is not inconsistent with the AP's tests. In one case, a BitTorrent file transfer was squelched, apparently by messages generated by Comcast, only to start 10 minutes later. Other tests were called off after around 5 minutes, while the transfers were still stifled.

Frequently my file transfers using AIM to other Comcast customers are slowed to a crawl, apparently by Comcast's traffic shaping.  Too bad there is no Verizon FIOS or RCN in my building.

AP Confirms Comcast's P2P Filter

The Associated Press reports tests confirming that Comcast interfers with P2P subscriber traffic. Additional tests indicate that Time Warner Cable, Cablevision, and a business class connection to AP headquarters did not interfere with the same P2P file transfers.

The article suggests that Comcast is using technologies from Sandvine to interfere with the P2P traffic:

Comcast subscriber Robb Topolski, who discovered the blocking earlier this year and traced it to reset packets, pointed out that a Canadian company called Sandvine Inc. sells equipment that promises to save bandwidth for Internet service providers by managing and redirecting file-sharing traffic.

BitTorrent Inc. President Ashwin Navin said that the interference method on Comcast's network is consistent with Sandvine's technology. Sandvine did not respond to a request for comment.

Comcast spokesman Charlie Douglas would not confirm that the company uses Sandvine equipment.

Comcast Blocking Or Delaying P2P Traffic

The Associated Press reports that Comcast blocks and/or delays P2P traffic when its subscribers try to upload an entire file to another Comcast subscriber.

Comcast's technology kicks in, though not consistently, when one BitTorrent user attempts to share a complete file with another user.

Each PC gets a message invisible to the user that looks like it comes from the other computer, telling it to stop communicating. But neither message originated from the other computer -- it comes from Comcast. If it were a telephone conversation, it would be like the operator breaking into the conversation, telling each talker in the voice of the other: "Sorry, I have to hang up. Good bye."

So much for net neutrality. 

Let's see if litigation follows.

Music Label Victory Case Appealed

A variety of news sources report that the verdict in favor of the major music labels in the Thomas downloading case will be appealed.  Declan McCullagh has a good analysis of why they won. Among his points:

3. "Making available." Jury Instruction 15 is more important. It says that the RIAA doesn't need to offer any evidence that rapacious Kazaa users actually downloaded songs from Thomas' computer. All they need to do is claim that Thomas left the songs in a publicly accessible directory where they could have been downloaded. Big difference.

This is not an outlier, by the way. A Pennsylvania judge came up with the same making-available-is-infringement conclusion in February. Marybeth Peters of the U.S. Copyright Office has argued that "making (a file) available for other users of a peer to peer network to download... constitutes an infringement of the exclusive distribution right, as well of the reproduction right." Judge Davis' interpretation of the law may not be the only one, but it's a defensible one. Here's his reasoning.

Music Labels Win Download Copyright Infringement Case,

The AP reports (via Yahoo) that a jury has found for the music labels in the Minnesota download case.  Defendant Jammie Thomas was ordered to pay $9,250 for each of 24 recordings, or a total of $222,000. Most other law suits have apparently been settled for a few thousand dollars.

The outcome may give individuals who are sued by the labels some pause before refusing to settle similar cases.

Music Download Trial Begins In Minnesota

The Associate Press reports (via Excite.com) that the first actual trial alleging  copyright infringement for P2P filesharing is underway in Dulluth, MN. The plaintiffs are Sony BMG,  Arista Records LLC, Interscope Records, UMG Recordings Inc., Capitol Records Inc. and Warner Bros. Records Inc. The RIAA is not a party to the litigation.

Hollywood Tests Watermark Technologies

Brad Stone reports in the NYTimes on Movielab's testing of several watermarking technologies. According to Prof. Leonard Kleinrock, one firm's technology was better than the rest. Goodness was judged by maximizing true positives (detecting a watermark when present) and minimizing false negatives (failing to detect when present) and false positives (detecting when not actually present). Movielabs declined to identify the company with the best performing watermark technology.

Nevertheless, afterwards, executives from Santa Clara, Calif-based Vobile were crowing in the hallways of the Universal Hilton Hotel.

The two-year old company’s technology, called Video DNA, has apparently bested others from the Royal Philips Electronics, Thomson Software & Technology, and the highest profile digital fingerprinting company, the Los Gatos, Calif.-based Audible Magic, which has deals to filter video sharing sites like YouTube and Microsoft’s Soapbox.

MPAA accuses TorrentSpy of concealing evidence

This according to Greg Sandoval's blog posting on CNet.

Jacqueline Chooljian, a federal judge in the Central District of California in Los Angeles, issued the decision while presiding over a court fight between the studios and TorrentSpy, the BitTorrent search engine accused of copyright infringement in a lawsuit filed last year by the film industry. On May 29, Chooljian ordered TorrentSpy to begin logging user activity, including IP addresses, and turn the data over to the Motion Picture Association of America (MPAA)....

This may be the first time that anyone has argued that information within RAM is electronically stored information and therefore subject to the rules of evidence, Chooljian said according to court records. Up to now, many Web sites that promised users anonymity, such as TorrentSpy, believed they need only to switch off their servers' logging function to avoid storing user data.

Court-enforced logging. Auto-deposition? Hmmm. Maybe a lawyer can explain why this doesn't violate the prohibition against self-incrimination. After all, entities are Persons under current law. I suppose that because this is part of the pretrial discovery process it passes muster.

Skype Deconstructed / Hacked

[tip o' the hat to Dave Farber's IP list].

Phillipe Biondi and Fabrice Desclaux have reversed engineed Skype. The details are in a highly technical presentation online here. Skype apparently makes use of several software obsfucation techniques and defensive security mechanisms. For those interesting in details, worth the read.

Keeping Honest People Honest

The BBC has published a Q&A with entertainment industry execs that's worth reading. The questions cover a broad range of topics, including: Why not have simultaneous global release; What's being done to save cinemas; Why not illegally download; Why have region encoding on DVDs; and What's the point of DRM?

The response of the MPAA's Dan Glickman is noteworthy:

Content owners use DRMs because it provides casual, honest users with guidelines for using and consuming content based on the usage rights that were acquired. Without the use of DRMs, honest consumers would have no guidelines and might eventually come to totally disregard copyright and therefore become a pirate, resulting in great harm to content creators.

DRMs' primary role is not about keeping copyrighted content off P2P networks. DRMs support an orderly market for facilitating efficient economic transactions between content producers and content consumers.

There's some truth to this point of view.

2005 Winners and Losers - P2P

Thomas Mennecke's end of the year review of P2P winners and losers is worth a look.

Winners: BitTorrent, Apple Computer, LimeWire, Open Source P2P, and thePirateBay.

Losers: RIAA, SonyBMG, Sharman Networks, Grokster, and pay P2P.

Mennecke also opines that the SonyBMG rootkit fiasco may be the death knell of DRM. While I strongly agree that Sony behaved badly, it's unlikely that DRM will disappear any time soon. Rather, monies will be paid in compensation, Sony will agree not to do it again, and the industry will move on to the next generation of DRM. This time, however, the interests of consumers will be taken into account  before the DRM technology is released to the public.

Well one can hope.

Snippets:

2006: The Year of MP3s and Stealth P2P

The BBC Website article by Jane Wakefield quotes music  industry watchers as predicting that in 2006 at least one major music label will release music in MP3 format (presumably on CDs). The article also contains a prediction that new P2P networks will appear in 2006 whose users cannot be logged or traced. Snippets:

Mom Fights Downloading Suit on Her Own

Jim Fitzgerald's piece for the AP regarding the battle of Patricia Santangelo against the RIAA is worth a read. Check out the Recording Industry vs The People blog site as well. Lots of useful information there. Snippets from the Fitzgerald article:

Harvard Conference On IP Law

Earlier I reported on the Harvard Law School conference on IP Law cosponsor by Wilmer Hale. Now the proceedings including the agenda, presentations, audio, and the Grokster decision are now online and available to all those interested.

The Boycott Sony Blog

Tim Jarrett has established the boycott Sony blog, apparently to provide a forum for comment and discussion. Among the more recent observations is that the provider of the DRM technology that is the root cause of the Rootkit problem, first4internet, has apparently taken down their web site.

As of yesterday afternoon, most of the content was gone as observed by Jarrett and others.

Grokster Bytes The Dust

As everyone has heard, Grokster has ceased operations and paid a hefty settlement fee.  This ZDNET article summarizes the main points.

As noted, Justice Ginzburg's concurring opinion held that P2P software was not on trial.  Rather, the Court found that Grokster's  (and Streamcast's) marketing focused on uses that infringed the copyrights of others. For further legal analysis of the Grokster decision, see my summary of the recent Harvard Law School discussion on Grokster: Who Won?

HLS Conference On IP Law - Grokster

Grokster.. So Who Won?

Moderator: Thomas P. Olson, Partner,  Wilmer Hale

Panel:
William W. Fisher, Prof. of Law, HLS
Doug Lichtman, Prof. of Law, U. of Chicago
William F. Patry, partner, Thalen, Reid & Priest, LLP
Jeremy Williams, Senior Vice President and Deputy General Counsel, Warner Bros. Entertainment, Inc.

(Paraphrasing, not quoting except where powerpoints wer distributed)

Background-Thomas Olson:

Sony BetaMax case (1984):

Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses."

Grokster won in the District Court and in the Ninth Circuit (3-0).

The Grokster Court (the Supremes) did not like Grokster: 9-0 against.

[The opinion can be download here.]

Did Grokster intend to induce infringement?

The record is replete with evidence that from the moment Grokster and StreamCast began to distribute their free software, each one clearly voiced the objective that recipients use it to download copyrighted works, and each took active steps to encourage infringement.

Grokster's Bad Intent - Key Factor #1

Three features of this evidence of intent are particularly notable. First, each company showed itself to be aiming to satisfy a known source of demand for copyright infringement. the market comprising former Napster users.

Grokster's Bad Intent - Key Factor #2: Technological Mandate to Avoid Infringement? Or, Never Mind

Second, the evidence of unlawful objective is given added significance by MGM's showing that neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. While the Ninth Circuit treated the defendant's failure  to develop such tools as irrelevant because they lacked an independent duty  to monitor their user's activity, we think this evidence underscores Grokster's and StreamCast's intentional facilitation of their user's infringement.

Grokster's Bad Intent - Key Factor #3: Tell me again how you make your money?

Third, there is a further complement to the direct evidence of unlawful objective. It is useful to recall that  StreamCast and Grokster make money by selling advertising space, by directing ads to the screens of computers employing their software. As the record shows, the more the software is used, the more ads are sent out and the greater the advertising revenue becomes. Since the extent of the software's use determines the gain to the distributors, the commercial sense of their enterprise turns on high-volume use which the record shows is infringing.

This evidence alone would not justify an inference of unlawful intent, but viewed in the context of the entire record its import is clear.

The unlawful objective is unmistakable.

Harvard Law School Conference On IP Law

Today I'm at The Harvard Law School Conference on IP Law. I'll be blogging the morning sessions which are about to kick off.

The various welcoming speeches are underway.  Elena Kagan, Dean, Harvard Law School.

(Paraphrasing selected comments, not quoting.)

Patent Litigation - A View From The Bench
Moderator: William F. Lee

Panel:
Hon. Arthur J. Gajarsa, former patent examiner, Court of Appeals for the Federal Circuit (CAFC),
Hon. Alan D. Lourie, Court of Appeals for the Federal Circuit (CAFC),
Hon. Pauline Newman, Court of Appeals for the Federal Circuit (CAFC),
Hon. Pattie B. Saris, US District Court, Massachusetts,
Hon. William Young, US District Court, Massachusetts

Some background:

Number of patent litigation cases filed has increased each of the past 4 years.

More than 70% of patent cases survive until a court action is taken, but only 15-18% see the pretrial phase.  Only 4% are actually tried. 70% jury trials / 30% bench trials.

Median cost of litigating a patent case has jumped 33%; is now $2M on average.

Question posed: what change in the patent system would you most like to see?

Australian Court Rules Against Kazaa

Numerous sources including Reuters, the NYTimes,  and CNet have reported that Sharman Networks, the makers of P2P file sharing software have been found guilty in an Australian (home of Sherman) of promoting copyright infringement. Snippets from the CNet article:

Sony to launch P2P music swapping network

The Channel Register (UK) reports on a Sony / BMG deal to bring music to market via P2P.
Snippets:

Defending Content Owners

Writing on ZDNet, John Carroll defends the interests of content creators. My views are a bit different. I strongly believe that DRM tools should be available to everyone, not just big companies. Nonetheless, this is some of what Carroll  had to say:

Post-Grokster

There are, of course, numerous comments in the blogosphere and press on Grokster. Raymond Blijd comments on the consequences of Grokster for software vendors and content distributors. Although I think this position is vastly overstated, Blijd says this about Grokster's impact on innovation:

Justice Ginsburg Says Grokster is Not About P2P Technology

From  the concurring opinion:

Even if  the absolute  number of  noninfringing files  copied
using the Grokster and StreamCast software is large, it does
not follow that the products are therefore put to substantial
noninfringing uses and are thus immune from liability.  The
number of  noninfringing  copies may be reflective of, and
dwarfed by, the huge total volume of files shared.  Further,
the District Court and the Court of Appeals did not sharply
distinguish between uses of  Grokster’s and  StreamCast’s
software products  (which  this case is about) and uses  of
peer-to-peer technology generally  (which  this case is not
about).  [emphasis added]

Supremes Side With RIAA, Studios - 2nd Update

The New York Times says:

Two lower courts previously sided with Grokster without holding a trial. They each based their decisions on the 1984 Supreme Court ruling that Sony Corp. could not be sued over consumers who used its VCRs to make illegal copies of movies.

The lower courts reasoned that, like VCRs, the file-sharing software can be used for "substantial" legal purposes, such as giving away free songs, free software or government documents. They also said the file-sharing services were not legally responsible because they don't have central servers pointing users to copyright material.

But in Monday's ruling, Souter said lower courts could find the file-sharing services responsible by examining factors such as how companies marketed the product or whether they took easily available steps to reduce infringing uses.

"There is substantial evidence in MGM's favor on all elements of inducement," Souter wrote.

Indipendent Online Music Stores Avoid DRM

According to a Boston Globe article, independent online music stores are not imposing rights management on most tunes. Snippets:

Shear Brilliance

Various publications are reporting that Microsoft is developing a P2P application not unlike BitTorrent and the less well known Kontiki. This