What the RIAA and MPAA could learn John Stewart

Not so long ago clips from the Daily Show began to appear on YouTube. Stewart could have brought lawsuits, he could have railed against thieves on his show, instead he did something very intelligent, he adjusted his business model. The Daily Show now has all their video clips on their site with commercials. Stewart treated the YouTubers as a de facto focus group/test market.

Now instead of litigation draining their purse, Comedy Central has an additional revenue stream. I don’t have any use for content thieves; but clearly there are more intelligent responses than litigation.

Conflating free speech with free beer

The defendants in the Pirate Bay case have been found guilty and sentenced to one year in jail and ordered to pay 3,6 million in damages to copyright holders.

The Entertainment industry has been doing reasonably well in courts of law; but in the court of public opinion it has been a disaster. Ever since Nabster the industry has been playing whack a mole with successive file sharing services. For their part the file sharing services, for reasons best known to themselves, have been content to play mole.

Supporters of Pirate Bay seem to have confused free speech with free beer. I particularly recommend their agit-prop movie, Steal this Film. In the film they confuse themselves with fifteenth century printers defying local censors. In reality they are enabling the theft popular movies that corporations spent millions of dollars creating. In their movie they compare themselves to the French revolutionaries who stormed the Bastille; storming the local beer brewery would be closer to the mark.

From the very first entertainment industry trade groups have mishandled the file sharing phenomenon. File sharing is a useful technology that has a legitimate business model. Rather than embracing it and offering customers a legitimate option, the entertainment industry has sought to stamp it out.

Much of the file sharing community are digital looters, people who think that simply because they can take film or music, that makes it right, even noble. The industry needs to communicate to the public that just as physical looters make it impossible to live everyday life, digital looters present a problem to the cyber public and there is a common interest in suppressing illegal file sharing. But the litigious thud and blunder tactics of the industry have been a PR nightmare and served to transform morally pretentious thieves into folk heros.

The industry has also destroyed whatever moral authority it had with its law for me but not for thee approach to the world. I refer of course to Sony’s rootkit disaster, the MPAA email case, and most notoriously, the NDS Piracy case. Corporations who engage in piracy cannot reasonably expect the general public to takes their claims of intellectual property rights seriously.

The industry must:

• adapt its business model to offer customers product in the medium the public prefers
• treat its customers like customers rather than criminal suspects
• engage the public on the basis of mutual interest and mutual respect
• start to employ ridicule as effectively as John Stewart
• always set a proper example by showing unfailing respect for the private property of others

Did the Central District Court of CA just leagalize industrial espionage?

E-Mail Hacking Case Could Redefine Online Privacy

The case, Bunnell v. Motion Picture Association of America, involves a hacker who in 2005 broke into a file-sharing company's server and obtained copies of company e-mails as they were being transmitted. He then e-mailed 34 pages of the documents to an MPAA executive, who paid the hacker $15,000 for the job, according to court documents.

The issue boils down to the judicial definition of an intercept in the electronic age, in which packets of data move from server to server, alighting for milliseconds before speeding onward. The ruling applies only to the 9th District, which includes California and other Western states, but could influence other courts around the country.

In August 2007, Judge Florence-Marie Cooper, in the Central District of California, ruled that the alleged hacker, Rob Anderson, had not intercepted the e-mails in violation of the 1968 Wiretap Act because they were technically in storage, if only for a few instants, instead of in transmission.

"Anderson did not stop or seize any of the messages that were forwarded to him," Cooper said in her decision, which was appealed by Valence Media, a company incorporated in the Caribbean island of Nevis but whose officers live in California. "Anderson's actions did not halt the transmission of the messages to their intended recipients. As such, under well-settled case law, as well as a reading of the statute and the ordinary meaning of the word 'intercept,' Anderson's acquisitions of the e-mails did not violate the Wiretap Act."

Anderson was a former business associate of an officer for Valence Media, which developed TorrentSpy, a search engine that helped users find "torrents," or special data files on the Internet that can be used to help download free audio, software, video and text. According to court documents, Anderson configured the "copy and forward" function of Valence Media's server so that he could receive copies of company e-mail in his Google mail account. He then forwarded a subset to an MPAA executive.

The documents sent to the MPAA included financial statements and spreadsheets, according to court papers. "The information was obtained in a legal manner from a confidential informant who we believe obtained the information legally," MPAA spokeswoman Elizabeth Kaltman said.

Valence Media alleged that the MPAA wanted those documents to gain an advantage in a copyright infringement lawsuit against the company and its officers.

"The case is alarming because its implications will reach far beyond a single civil case," wrote Kevin Bankston, a senior attorney for the Electronic Frontier Foundation in a friend-of-the-court brief filed Friday. If upheld, the foundation argued, "law enforcement officers could engage in the contemporaneous acquisition of e-mails just as Anderson did, without having to comply with the Wiretap Act's requirements." Those requirements are strict, including a warrant based on probable cause as well as high-level government approvals and proof alternatives would not work.

If I am reading this correctly, anyone with the technical know how can set up shop as the secret police. I would love to know what e-discovery experts think of this ruling.