Grokster, rebooted or … ‘Everything is a remix’ ….

Warning:  this is a bit long,  so if you’ve got something else you want to do, please feel free  to move along.  I won’t be upset 😉

In the meanwhile, the words in the headline, ‘Everything is a remix,’ aren’t mine: they’re the title to a terrific Ted talks talk by Kirby Ferguson.

Ironically,  the video below is also on Google’s YouTube. I say ‘ironically’ because increasingly, YouTube  items are replete (replaced?) with copyright takedown/Infringement/violation notices, which might be summed up as exercises in futility, protecting the unprotectable, because as anyone who’s been online  for more than ten minutes knows, anything which can be seen, and/or heard can be copied by one digital or analog means or another.

If you’re still here, before you go any further, watch the video  further down, and/or read its transcript.

Read Only culture

Says the Wikipedia:  “In his book, [Lawrence] Lessig describes modern culture as Read Only. In a Read Only culture, a small professional group produces all the culture that is then consumed by the masses. The public can only absorb and take in the culture, but it leaves no room to interact with the culture. This is analogous to a Read Only CD which allows only the viewing of its content. Modern consumptive culture is a form of permission culture.Advocates of copyright protection argue Read Only culture is necessary to nurture creativity. They argue that without protection of their work, artists would have no incentive to produce original material because their work will be taken and modified by others.”

Stealing other people’s songs

Kirby’s  video kicks off with a quote from Henry Ford. He also takes a swipe at the late Steve Jobs.

“American copyright and patent laws run counter to this notion that we build on the work of others, says Ferguson, going on,

“Instead, these laws and laws around the world use the rather awkward analogy of property. Now, creative works may indeed be kind of like property, but it’s property that we’re all building on, and creations can only take root and grow once that ground has been prepared.”

Henry Ford once said, “I invented nothing new. I simply assembled the discoveries of other men behind whom were centuries of work. Progress happens when all the factors that make for it are ready and then it is inevitable.”

2007. The iPhone makes it debut. Apple undoubtedly brings this innovation to us early, but its time was approaching because its core technology had been evolving for decades. That’s multi-touch, controlling a device by touching its display. Here’s Steve Jobs introducing multi-touch and making a rather foreboding joke.

Steve Jobs: “And we have invented a new technology called multi-touch. You can do multi-fingered gestures on it, and boy have we patented it.

KF: Yes. And yet, here is multi-touch in action. This is at TED, actually, about a year earlier. This is Jeff Han, and, I mean, that’s multi-touch. It’s the same animal, at least. Let’s hear what Jeff Han has to say about this newfangled technology. Jeff Han:

Multi-touch sensing isn’t anything — isn’t completely new. I mean, people like Bill Buxton have been playing around with it in the ’80s. The technology, you know, isn’t the most exciting thing here right now other than probably its newfound accessibility. KF: So he’s pretty frank about it not being new. So it’s not multi-touch as a whole that’s patented. It’s the small parts of it that are, and it’s in these small details where we can clearly see patent law contradicting its intent: to promote the progress of useful arts.

Here is the first ever slide-to-unlock. That is all there is to it. Apple has patented this. It’s a 28-page software patent, but I will summarize what it covers. Spoiler alert: Unlocking your phone by sliding an icon with your finger. I’m only exaggerating a little bit. It’s a broad patent.

Now, can someone own this idea? Now, back in the ’80s, there were no software patents, and it was Xerox that pioneered the graphical user interface. What if they had patented pop-up menus, scrollbars, the desktop with icons that look like folders and sheets of paper? Would a young and inexperienced Apple have survived the legal assault from a much larger and more mature company like Xerox?

Now, this idea that everything is a remix might sound like common sense until you’re the one getting remixed. For example …

SJ: I mean, Picasso had a saying. He said, “Good artists copy. Great artists steal.” And we have, you know, always been shameless about stealing great ideas.

KF: Okay, so that’s in ’96. Here’s in 2010.

“I’m going to destroy Android because it’s a stolen product.” “I’m willing to go thermonuclear war on this.” (my emphasis)

Speaking of going nuclear, Hollywood and Big Music are destructively going after you again, and  this time they they’re taking no chances. They have everything neatly tied up  in a pretty package  and have apparently actually succeeded in doing  something they’ve been trying to do for years:  they’re getting  certain ISPs   to stand against their own customers,  acting  as   (unpaid) corporate copyright cops

Dredging up the  tired old claim that you’re nothing more than criminals and thieves  out to  rob  them  blind, the major record labels and movie houses have launched a massive new battle front designed to make it clear once and for all that  consumers are people who’ll stop at nothing  to rob  the honest and hard-pressed cartel members  of ‘product’ every chance they get.

In the old days, it was called  a ‘graduated response’ but now it’s been relabeled and redesigned. With politicians and lawmakers from around the world  now safely bought and paid for,  this latest effort is an unholy collaboration  involving the Motion Picture Association of America, Recording Industry Association of America  [most of its ‘members’are  in fact foreign] and five big American ISPs.

And it’s now being called the “six-strikes” legislation.

For the moment, it’s localised in America (where else?) But it won’t stay there for long. As with ACTA and its forerunner, the first three strikes graduated response scam,  soon governments everywhere will be falling over themselves  to do the bidding of the  multinational  entertainment cartels, using  local politicians  as corporate shills.


It all started with Grokster, a privately owned software company based in the West Indies that created the Grokster peer-to-peer file-sharing client in 2001

It utilized the FastTrack protocol. Grokster Ltd, says the Wikipedia, continuing, it  “was rendered extinct in late 2005 by the United States Supreme Court’s decision in MGM Studios, Inc. v. Grokster, Ltd. The court ruled against Grokster’s peer-to-peer file sharing program for computers running the Microsoft Windows operating system, effectively forcing the company to cease operations. The product was similar in look and feel to Kazaa which is marketed by Sharman Networks and Morpheus which was distributed by StreamCast.

“Grokster along with Morpheus and Kazaa are considered second-generation peer-to-peer file sharing programs because unlike their predecessor Napster these file sharing programs allowed users to trade files directly between one another without these transactions passing through a centralized server. Because Napster maintained this fraction of control over the transaction of files through its server it was ruled illegal because it should have exercised its power over the server to stop the sharing of copyright infringing files. Grokster and this second generation of peer-to-peer file sharing programs sought to avoid this legal obstacle.

Then  the deal escalated to ACTA and beyond .

 Keeping the masses compliant

In the early days of Rome,  the  corrupt plutocrats  who ran what amounted  to the entertainment   cartels of the time used  bloody gladiatorial contests to amuse  the masses, keeping them compliant,

The  modern-day equivalents  of the plutocrats of old are still corrupt, and the masses are, of course, the ‘consumers’  of today.

Once again, the world is going mad and the the big record companies and movie houses are slowly and relentlessly gaining gaining political dominance. Right now,  for example, the  US Department of Justice,  meant to serve  Americans  in all walks of life,  is largely peopled  by RIAA hacks  who serve only the record labels  and their shareholders.

Of the new six  strikes legislation, the EFF  (Electronic Frontier Foundation’s Deep Links  has this to say >>>

It can’t be easy to convince millions of subscribers that there’s no reason to be worried when their service providers agree to collaborate with big content to tackle online infringement — especially when those subscribers weren’t given a chance to review or comment on the deal. But yesterday’s announcement of the membership of the executive and advisory boards for the Center for Copyright Information, which is in charge of implementing the “graduated response” program announced last year, seemed to be an attempt to do just that. The press release stressed the free speech credentials of the executive director and the identified the various consumer advocates who have agreed to serve on the advisory board. So, all will be fine, right?

Wrong. An advisory board is just that: a group of advisors, not decisionmakers. No matter how you slice it, subscribers don’t have a seat at the table now any more than they did in the earlier negotiations.

For those who haven’t been following this, here’s a brief sampling of issues subscribers might have wanted to address, if they’d been given a chance:

  • The alerts and other measures contemplated in the original “memorandum of understanding” released last summer are prompted by a mere allegation of infringement, based on detection mechanisms users cannot independently investigate (there is a process for independent review, but the reports won’t be public), with no way to hold content owners accountable for mistakes.
  • Subscribers can challenge improper notices — but they get just 10 days to prepare their case, and can only assert certain limited defenses.
  • Thus far, while various reports about the system are supposed to be generated, there’s no mechanism to make those public, nor the “prevailing legal principles” the reviewers are supposed to apply.

(And these are just some of the problems we’ve been tracking.)

The ISPs and the media groups announced the project last summer to much fanfare and criticism. But a funny thing happened on the way to the final rollout: Internet users joined together to tell policymakers and big media, in no uncertain terms, that we oppose backroom deals governing the Internet. That this deal applies to Internet access, among other things, makes it no less palatable; quite the contrary.

Given the importance of Internet access today, it’s crazy to imagine being cut off for unproven accusations from a record label, movie studio, or book publisher. You can tell the participating ISPs today to publicly commit to not use this program to cut off users from the Internet.

And here’s one more idea for the groups involved in negotiating this agreement: press reset. This collaboration has been years in the making, with the ISPs under heavy pressure from the content industries and government officials. It may be that they made the best deal they could under the circumstances, but since then the world has changed. If the ISPs decided to take this back to drawing board, we think their customers will stand with them, loudly and publicly — but only if they also insist that their customers have voice in the process.

Consumers’ eyes and ears

 “In April, I joined the Advisory Board of the Center for Copyright Informationt to serve as consumers’ eyes and ears as an agreement between the major Internet service providers and copyright holders is implemented,” says  Public Knowledge’s Gigi Sohn., going on,

“The agreement requires ISPs to send up to six ‘alerts’ to alleged peer-to-peer infringers, with the last two alerts resulting in so-called “mitigation measures” and an opportunity for the user to appeal.

The system was scheduled to launch in July, she says,  “and the delay in the launch and relative silence has some floating theories of ISP pushback and content industry scheming to turn the system into an excuse for disconnection.  But the reality is a lot less exciting.   In a nutshell, there was a lot of foundational and technical work that needed to be done before the launch, so the July date was unrealistic.

How does it work?  First, Sohn Ssates,  “the ISPs are still implementing the technology for sending the alerts and it has taken longer than first expected.

“Second, the Board, with the Advisory Board’s advice, has been testing messages for the alerts to see what will be effective and what will not.  This testing has included focus groups with parents and young adults.

“Third, the American Arbitration Association is putting in place its procedures for appeals, including making sure the process is as simple as possible.

“The CCI’s alert methods and messaging will almost certainly be shaped by the recent reports from France that discuss the demise of the “3 strikes” Hadopi law.   The French Culture minister has concluded that the law is a “failure,” partly because of its inability to promote legal content to replace illegal downloads.

Perhaps most important for the CCI to heed is what the head of the French commission o“n the “Future of Piracy” said about the law.

So what’s it all about? Andrew Couts in Digital Trends from  March 29, 2012

‘Six strikes and you’re screwed

His piece is headlined, ‘Six strikes and you’re screwed: What the upcoming piracy crackdown means for you,’

Chillingly,  (you can take that any way you like) it goes >>>

Starting July 1, the nation’s largest Internet service providers (ISPs) have agreed to adopt a “Graduated Response” program intended to cut down on illegal file sharing. The program, colloquially known as the “six-strikes” system, is the brainchild of the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) — the same industry groups that conjured up SOPA and PIPA. The system will affect millions of Internet users across the country. Whether you download your music and movies from the Internet or not, it is important for everyone to understand what the plan is, and how it could affect your life. Here is everything you need to know about “six-strikes.”

How does it work, in a nutshell?

Anytime copyright holders find that their content is being illegally downloaded, they will contact the participating ISPs. The ISPs will then send out an initial “copyright alert” to accounts linked to the alleged infringement. If a subscriber’s account continues to be linked to infringement, his or her ISP will send out up to four written notices, the natures of which are sometimes vague and varying. If the alleged infringement continues still, the ISP will then take “mitigation measures,” which include bandwidth throttling (i.e. slowing down the accused subscriber’s connection), or even temporarily cutting off full Web browsing abilities. In cases where alleged infringement persists after the initial mitigation measure, the subscriber may face lawsuits from the copyright holder, and/or have their Internet access cut entirely, in accordance with section 512 of the Digital Millennium Copyright Act (DCMA).

Who is in charge of this system?

Administering “six strikes” is a new entity called the Center for Copyright Information (CCI), which was established by the entertainment industry and the ISP industry. (Internet users were not part of the negotiations.) The CCI will be governed by a six-person executive committee, made up of three representatives of the copyright industry, and three representatives of participating Internet service providers. There will also be a three-person advisory board, made up of people “from relevant subject matter and consumer interest communities,” who represent us, the Internet users, in all this. Though, from the looks of it, the advisory committee appears to be mostly ornamental.

The CCI develops the “educational material” part of the alerts, and develops a set of “best practices” for the copyright alerts system to abide by. According to the CCI’s FAQs, the CCI will also “benefit from guidance by consumer advocates and technical experts serving on its advisory committee or providing other expert services,” whatever that means.

Which ISPs are part of this plan?

The big ones. Those currently on board include AT&T, Cablevison, Comcast, Time Warner Cable, and Verizon. Smaller, local ISPs are not yet included in the plan. But more may climb aboard by the time the plan sets sail this summer.

What are these alerts?

Officially, the plan contains six levels of “copyright alerts,” and the consequences at each depth intensify. They are as follows:

First alert: An ISP will send a written alert (probably via email), which informs the subscriber that his/her account has been linked to infringing activities. This alert will also direct the subscriber to “educational resources” which will “(i) help him/her to check the security of his/her computer and any Wifi network, (ii) provide explanatory steps which will help to avoid content theft in the future and (iii) provide information about the abundant sources of lawful music, film and TV content,” according to the CCI. Of course, all of these “educational resources” are provided by the entertainment industry and their ISP cohorts, so you can guess what kind of advice these one-sided resources provide.Second alert: This alert nearly mimics the first, but will “underscore the educational messages.” Also, ISPs may choose to simply skip this alert, and jump to option number three.Third alert: At this level, things get creepy. Once an account is linked to infringing behavior a third time, the ISP will issue the alert through a “conspicuous mechanism,” like a pop-up window or landing screen, when the user goes online. The user must then explicitly acknowledge that he/she has seen the alert, which reminds that “content theft” is taking place through his/her account, and re-informs him/her the consequences of illegally downloading copyrighted content.Fourth alert: The fourth alert is essentially identical to the third alert.Fifth alert: Now the “mitigation measures” begin. In addition to sending an alert (probably the same alert as the third and fourth alerts), the ISP can choose to a) reduce Internet connection speeds (i.e. throttling); b) impose a landing page, which the accused subscriber cannot bypass until he/she contacts the ISP “to discuss the matter” — or reviews and responds to more of that enlightening “educational material.” According to the agreement, the ISPs have some freedom to choose which mitigation measures to take at this point in the alert process. And these measures may include some that are not listed here.Sixth alert: At this point, the ISP may issue another mitigation measure. But the company could, legally, suspend the customer’s account altogether — though that is not an official part of the plan. Also, the subscriber could be sued by the copyright holders under DCMA. That said, the specific consequences at this stage remain dangerously unclear. (We’re putting our money on lawsuits.) The CCI does not expect many subscribers to reach this level of alert.Is this the same as the “three strikes” laws overseas?

No. First, this plan is not a law at all. It is a voluntary agreement between copyright holders and ISPs. Second, this plan does not mandate that ISPs completely cut subscribers’ Internet access, as is the case with so-called “three strikes” laws. Moreover, the plan does not even include a temporary suspension of Internet access — unless, of course, you consider an impassable landing page a suspension of Internet access.

Who decides to send out these alerts?

The ISPs are in charge of sending out the alerts, as they are the only ones who can link the allegedly infringing activity to specific subscriber accounts. However, the ISPs take this action based entirely on the allegations of the copyright holders. In other words, Internet users can be punished because of accusations by the copyright industry, but no one is necessarily verifying the claims.

What do copyright holders hope to achieve with these alerts?

Studies show that many people do not know that downloading content from torrent sites, or other websites is illegal. Even if they do, many fail to realize the potentially severity of the consequences. By sending out these alerts, Big Entertainment and the ISPs hope that many will simply stop getting their entertainment illegally, and opt for legal distribution outlets.

What happens if my account is incorrectly linked to copyright infringement?

This is perhaps the most problematic part of this plan, as it puts the burden of proof on the Internet subscriber, who must prove that he did not illegally download copyrighted content. As it stands, all a copyright holder has to do is say — but not prove — that infringing activities are taking place in order for an ISP to alert or punish a subscriber with throttling or access disruption. In other words: Users are considered guilty unless they can prove themselves innocent. As the Electronic Frontier Foundation, a public rights advocacy group, notes, “This burden-shift violates our traditional procedural due process norms and is based on the presumed reliability of infringement-detection systems that subscribers haven’t vetted and to which they cannot object.”

If you do find that your account has been incorrectly targeted — or that your Wi-Fi was used by someone else to illegally download copyrighted works — you have only 10 days to challenge the accusation. As Ars Technica reports, there are six “pre-approved” methods for challenging these accusations. (Any method that strays from these six options is not acceptable.) Also, doing so will cost you a $35 “filing fee,” paid to the CCI, which will be refunded if you are found to be in the right. It is currently not clear which lawyers decide who is right and who is wrong in these cases. And it is entirely possible that they will have ties to the copyright industry.

Are there any consequences for copyright holders who wrongly accuse subscribers of infringement?


So, is this plan good or bad for Internet users?

It is good in that receiving an alert is better than getting hit with a lawsuit out of the blue. Also, by sending out multiple notices before a subscriber faces any punishments, the system gives people a chance to stop downloading copyrighted content illegally before facing any type of legal action.

However, it is bad because the entire system was constructed without any input from Internet users. It was also created entirely by big entertainment lobbyists (i.e. the MPAA and RIAA), and is constructed to serve their needs, regardless of whether those needs are at odds with individual users’ needs. Furthermore, all of the “educational material” passed out comes from the copyright industry, which is known to use false information and scare-mongering to describe the effects of unregulated intellectual property.

In short, the system is rigged in favor of the copyright industry.

Is there any way I can fight back against this plan?

The plan has not yet gone into effect, so time remains for things to change. That said, individuals can do very little. One option: tell your ISP that you plan to cancel your service if they move forward with this system. Another is to express your concern about the plan to your senators and representatives in Congress. Unfortunately, neither of these options stand much chance of working — unless the Internet community at large pushes back in concert.

Mickey Mouse Protection Act

When [the UK]  Parliament decided, in 1709, to create a law that would protect books from piracy, the London-based publishers and booksellers who had been pushing for such protection were overjoyed”, says The Economist.

But as my friend, and determined copyright abolitionist, Crosbie Fitch, often points out, “this at a stroke suspended the public’s right to make copies – a natural right that they had enjoyed as part of their natural liberty since time immemorial”.

“Parliament had given them [publishers] rights, but it had set a time limit on them: 21 years for books already in print and 14 years for new ones, with an additional 14 years if the author was still alive when the first term ran out” The Economist stated, going on:

“After that, the material would enter the public domain so that anyone could reproduce it. The lawmakers intended thus to balance the incentive to create with the interest that society has in free access to knowledge and art. The Statute of Anne thus helped nurture and channel the spate of inventiveness that Enlightenment society and its successors have since enjoyed.

“Over the past 50 years, however, that balance has shifted. Largely thanks to the entertainment industry’s lawyers and lobbyists, copyright’s scope and duration have vastly increased. In America, copyright holders get 95 years’ protection as a result of an extension granted in 1998, derided by critics as the ‘Mickey Mouse Protection Act’. They are now calling for even greater protection, and there have been efforts to introduce similar terms in Europe.

But, “Such arguments should be resisted: it is time to tip the balance back”.

“Copyright was possibly originally the grant of a temporary government-supported monopoly on copying a work, not a property right”, it says. ‘From 1710 onwards, it has involved a deal in which the creator or publisher gives up any natural and perpetual claim in order to have the state protect an artificial and limited one. So it remains. The value society places on creativity means that fair use needs to be expanded and inadvertent infringement should be minimally penalised.’

What’s to be done?

“A return to the 28-year copyrights of the Statute of Anne would be in many ways arbitrary, but not unreasonable. If there is a case for longer terms, they should be on a renewal basis, so that content is not locked up automatically”, recckons The Economist.

“But, lest anyone should mistake this as a sign the journal is leaning towards openness and freedom, “None of this should get in the way of the enforcement of copyright, which remains a vital tool in the encouragement of learning”, it declares, adding, “But tools are not ends in themselves.”

Plus ça change, plus c’est la même chose.

Someone, somewhere, somehow  has to stop the cartels  before they finally  quell all creativity and innovation.

It can be done,  if the will of the people is strong enough.  Occupy Wall Street proves it.

 Jon Newton –

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