Amazon Launches DRM-free ITMS competitor

i continue to be a stick in the mud on this issue. while i understand why this has happened and why it’s important to comment on it, in my mind removing the restrictions on these digital files is not a silver bullet for consumers or content producers (in my opinion).

why do labels put out so much garbage? how can consumer sentiment be turned around? why do some kids/young people think that music is and should be completely free? are reviews bought and placed as defacto advertisements? these to me are difficult but more relevant questions. at least daimler saw it made a mistake and undid it at a painful price — we’re not seeing that in the music biz. we see a small adjustment and a hope it turns into an avalanche of cash.

Amazon is one of the few companies that would be able to pull something like this off. If they can get a large enough catalog of songs available and offer competitive pricing, this will be serious competition indeed for Apple.

Not that the Apple DRM is all that restrictive, I agree, but if you can get essentially the same thing with no DRM at all, why not do so?

Mousefinger, you’ve got to be joking.

Barringo,

Let’s get back to 512 of the DMCA. I’m finding that it’s a profoundly interesting subject of discussion, and the more I read… the more I realize that not very many people understand it.

Do you understand it?

Before you answer, let me tell you in advance it’s like I’m playing chess with you… and I’ve just taken your Queen and put you in check. It’ll be your move after I conclude these remarks. But, beware… I don’t think you can do anything but resign… or it’s checkmate.

Let the game resume:

You claimed that YouTube had acted to notify you of a copyright violation and that they’d terminated your account. You then in a sense mocked YouTube for allowing you to sign up with a new account in the face of their notice that your account had been permanently terminated:

http://bigpicture.typepad.com/comments/2007/02/my_youtube_dmca.html

While it appears, to me at least, that had YouTube had in place at the time of your offense their “Code of Conduct” stated here:

http://www.youtube.com/t/community_guidelines

Quoting it regarding account termination:

“Please take these rules seriously and take them to heart. Don’t try to look for loopholes or try to lawyer your way around them—just understand them and try to respect the spirit in which they were created. Violations of the Terms of Use may result in a warning notification or may result in termination of your account and deletion of all your videos. We decide whether we believe your violation of our Terms of Use should result in termination of your account. If you have an account terminated you are prohibited from ever signing up for another account!”

…end quote.

…then you would be justified in ridiculing them for their failure to prevent you from establishing another account, if in fact they did not prevent you from doing so in the exact same name as your prior account in which you offended. I have to assume they did not, since you said you immediately established another account.

However, I have to say that in my opinion you were not being fair if you also intended to ridicule DMCA (and its related section 512) itself. You know why?

Because YouTube honored the provisions of 512, and in your particular offense therefore maintained their exclusions from liability claims of the copyright holder, regardless of what they may have told you.

You see… they weren’t required to terminate your account upon one infraction. In fact, no specific number of infractions are mentioned in 512. If you think so, find them for me and show me.

They also were not required to ban you permanently from establishing another account, regardless of what their code of conduct says. If you think so… find it in 512 and show me.

512 doesn’t say service providers have to honor their own code of conduct. It doesn’t even say they have to have a code of conduct. All it says is that they must have adopted and reasonably implemented and notified subscribers of a policy that informs them of appropriate circumstances in which repeat offenders may have their accounts terminated. It doesn’t even prescribe what those circumstances are. It doesn’t even define a repeat offender, but one offense could never be considered a repeating offense, so 512 let them off the hook for any requirement to permanently terminate your subscribership, regardless of the magnitude of your offense.

See for yourself – straight from the U.S. Copyright office (see 512):

http://www.copyright.gov/title17/92chap5.html#512

Quoting from it:

“i) Conditions for Eligibility. –

(1) Accommodation of technology. – The limitations on liability established by this section shall apply to a service provider only if the service provider –

(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers; and

(B) accommodates and does not interfere with standard technical measures.”

…end quoting.

Now, on to your take down notice. Guess what?… They weren’t even required to notify you. If you think so, find it and show me where it is required. Here’s paragraph (g) from 512:

Quoting it:

“ (g) Replacement of Removed or Disabled Material and Limitation on Other Liability. –

(1) No liability for taking down generally. – Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.

(2) Exception. – Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider –

(A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material;

(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and

(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.”

…end quoting.

Now, I suppose you may call my hand on paragraph (A) above since it clearly seems to require them to have notified you… right? You sure?…

Sorry, but you’d be wrong if you thought it was a must do. You see… they only have to do that if they want to be insulated by 512 from any liability claims you might make against them for wrongfully taking down your material for which they had been notified of your potential offense, regardless of whether it eventually proved to be a copyright infringement offense or not. They may choose to notify an offender and I suspect that most providers do for formal and warning purposes, but they don’t have to. If in the notice to the provider the copyright holder nailed the offender dead in his tracks with irrefutable evidence of title to the copyrighted material, generally what the offending party might say doesn’t amount to a hill of beans. The provider is required to identify the offender to the holder, but can totally ignore the offender and not run afoul of 512. The provider would probably assume there was zero chance that it would ever have to replace the material it had taken down.

If the offender is caught dead in his tracks, he’d be dumb to make a counterclaim notice. Don’t you agree?

Now, back to YouTube’s code of conduct (already referenced and quoted).

I suppose that, unless I’m overlooking something, if a provider has a policy defined in a code of conduct that claims that once accounts are terminated that they are prohibited from ever signing up another account, and then if they permit a terminated account to sign up again, then the provider doesn’t understand its own code of conduct, or it understands it but has simply miswritten it, or it understands it and has correctly written it and ignores it unintentionally, or it understands and writes it correctly but intends to ignore it.

But in any event, 512 of DMCA doesn’t really govern their code of conduct, huh?

Would you say that’s pretty much a checkmate?… or you want to make a move?

Steven,

You bring tears to my eyes. You are a sweet savage.

I appreciate and share your indignation. What you are objecting to comes from a psychological propensity of many people to assuage themselves of guilt when breaking the law, by uniting themselves illogically with other true victims of offenses.

It goes like this (follow along please):

– City A has a corrupt police force, therefore…

– City A’s police abuse its citizens, and since…

– I am a citizen of City A, then…

– They must be abusing me as well (whether they do or not is not important) as other innocent citizens… so,

– I am justified in breaking the law because City A’s police abuse innocent citizens.

Now, in the situation you are responding to it goes like this:

– The labels abuse their signed artists, therefore…

– Since I can empathize with my friends, the artists…

– The labels must be abusing me as well, and so…

– I am justified in benefiting from my own copyright infringement of the labels’ properties (which may altogether represent the property of the artists as well), or from the copyright infringement of others.

In both of these metaphors are found the seeds of your indignation, and in both of them the perpetrators of offenses will disregard the property rights of the innocent citizens of City A, and the property rights of artists, because those persons are not truly their primary concern, but they only provide an emotional means of building their own illogical justification to break laws or moral constructs.