The Unbelievable Scale of AI’s Pirated-Books Problem

When employees at Meta started developing their flagship AI model, Llama 3, they faced a simple ethical question. The program would need to be trained on a huge amount of high-quality writing to be competitive with products such as ChatGPT, and acquiring all of that text legally could take time. Should they just pirate it instead?

Meta employees spoke with multiple companies about licensing books and research papers, but they weren’t thrilled with their options. This “seems unreasonably expensive,” wrote one research scientist on an internal company chat, in reference to one potential deal, according to court records. A Llama-team senior manager added that this would also be an “incredibly slow” process: “They take like 4+ weeks to deliver data.” In a message found in another legal filing, a director of engineering noted another downside to this approach: “The problem is that people don’t realize that if we license one single book, we won’t be able to lean into fair use strategy,” a reference to a possible legal defense for using copyrighted books to train AI.

Court documents released last night show that the senior manager felt it was “really important for [Meta] to get books ASAP,” as “books are actually more important than web data.” Meta employees turned their attention to Library Genesis, or LibGen, one of the largest of the pirated libraries that circulate online. It currently contains more than 7.5 million books and 81 million research papers. Eventually, the team at Meta got permission from “MZ”—an apparent reference to Meta CEO Mark Zuckerberg—to download and use the data set.

This act, along with other information outlined and quoted here, recently became a matter of public record when some of Meta’s internal communications were unsealed as part of a copyright-infringement lawsuit brought against the company by Sarah Silverman, Junot Díaz, and other authors of books in LibGen. Also revealed recently, in another lawsuit brought by a similar group of authors, is that OpenAI has used LibGen in the past. (A spokesperson for Meta declined to comment, citing the ongoing litigation against the company. In a response sent after this story was published, a spokesperson for OpenAI said, “The models powering ChatGPT and our API today were not developed using these datasets. These datasets, created by former employees who are no longer with OpenAI, were last used in 2021.”)

Until now, most people have had no window into the contents of this library, even though they have likely been exposed to generative-AI products that use it; according to Zuckerberg, the “Meta AI” assistant has been used by hundreds of millions of people (it’s embedded in Meta products such as Facebook, WhatsApp, and Instagram). To show the kind of work that has been used by Meta and OpenAI, I accessed a snapshot of LibGen’s metadata—revealing the contents of the library without downloading or distributing the books or research papers themselves—and used it to create an interactive database that you can search here:

There are some important caveats to keep in mind. Knowing exactly which parts of LibGen that Meta and OpenAI used to train their models, and which parts they might have decided to exclude, is impossible. Also, the database is constantly growing. My snapshot of LibGen was taken in January 2025, more than a year after it was accessed by Meta, according to the lawsuit, so some titles here wouldn’t have been available to download at that point.

LibGen’s metadata are quite disorganized. There are errors throughout. Although I have cleaned up the data in various ways, LibGen is too large and error-strewn to easily fix everything. Nevertheless, the database offers a sense of the sheer scale of pirated material available to models trained on LibGen. Cujo, The Gulag Archipelago, multiple works by Joan Didion translated into several languages, an academic paper named “Surviving a Cyberapocalypse”—it’s all in here, along with millions of other works that AI companies could feed into their models.

Meta and OpenAI have both argued in court that it’s “fair use” to train their generative-AI models on copyrighted work without a license, because LLMs “transform” the original material into new work. The defense raises thorny questions and is likely a long way from resolution. But the use of LibGen raises another issue. Bulk downloading is often done with BitTorrent, the file-sharing protocol popular with pirates for its anonymity, and downloading with BitTorrent typically involves uploading to other users simultaneously. Internal communications show employees saying that Meta did indeed torrent LibGen, which means that Meta could have not only accessed pirated material but also distributed it to others—well established as illegal under copyright law, regardless of what the courts determine about the use of copyrighted material to train generative AI. (Meta has claimed that it “took precautions not to ‘seed’ any downloaded files” and that there are “no facts to show” that it distributed the books to others.) OpenAI’s download method is not yet known.

Meta employees acknowledged in their internal communications that training Llama on LibGen presented a “medium-high legal risk,” and discussed a variety of “mitigations” to mask their activity. One employee recommended that developers “remove data clearly marked as pirated/stolen” and “do not externally cite the use of any training data including LibGen.” Another discussed removing any line containing ISBN, Copyright, ©, All rights reserved. A Llama-team senior manager suggested fine-tuning Llama to “refuse to answer queries like: ‘reproduce the first three pages of “Harry Potter and the Sorcerer’s Stone.”’” One employee remarked that “torrenting from a corporate laptop doesn’t feel right.”

It is easy to see why LibGen appeals to generative-AI companies, whose products require huge quantities of text. LibGen is enormous, many times larger than Books3, another pirated book collection whose contents I revealed in 2023. Other works in LibGen include recent literature and nonfiction by prominent authors such as Sally Rooney, Percival Everett, Hua Hsu, Jonathan Haidt, and Rachel Khong, and articles from top academic journals such as Nature, Science, and The Lancet. It includes many millions of articles from top academic-journal publishers such as Elsevier and Sage Publications. (...)

Publishers have tried to stop the spread of pirated material. In 2015, the academic publisher Elsevier filed a complaint against LibGen, Sci-Hub, other sites, and Elbakyan personally. The court granted an injunction, directed the sites to shut down, and ordered Sci-Hub to pay Elsevier $15 million in damages. Yet the sites remained up, and the fines went unpaid. A similar story played out in 2023, when a group of educational and professional publishers, including Macmillan Learning and McGraw Hill, sued LibGen. This time the court ordered LibGen to pay $30 million in damages, in what TorrentFreak called “one of the broadest anti-piracy injunctions we’ve seen from a U.S. court.” But that fine also went unpaid, and so far authorities have been largely unable to constrain the spread of these libraries online. Seventeen years after its creation, LibGen continues to grow.

by Alex Reisner, The Atlantic |  Read more:

Image: Matteo Giuseppe Pani/The Atlantic

Copyright Office: AI Copyright Debate Was Settled in 1965

The US Copyright Office issued AI guidance this week that declared no laws need to be clarified when it comes to protecting authorship rights of humans producing AI-assisted works.

"Questions of copyrightability and AI can be resolved pursuant to existing law, without the need for legislative change," the Copyright Office said.

More than 10,000 commenters weighed in on the guidance, with some hoping to convince the Copyright Office to guarantee more protections for artists as AI technologies advance and the line between human- and AI-created works seems to increasingly blur.

But the Copyright Office insisted that the AI copyright debate was settled in 1965 after commercial computer technology started advancing quickly and "difficult questions of authorship" were first raised. That was the first time officials had to ponder how much involvement human creators had in works created using computers. (...)

The office further clarified that doesn't mean that works assisted by AI can never be copyrighted.

"Where AI merely assists an author in the creative process, its use does not change the copyrightability of the output," the Copyright Office said.

Following Kaminstein's advice, officials plan to continue reviewing AI disclosures and weighing, on a case-by-case basis, what parts of each work are AI-authored and which parts are human-authored. Any human-authored expressive element can be copyrighted, the office said, but any aspect of the work deemed to have been generated purely by AI cannot.

Prompting alone isn’t authorship, Copyright Office says

After doing some testing on whether the same exact prompt can generate widely varied outputs, even from the same AI tool, the Copyright Office further concluded that "prompts do not alone provide sufficient control" over outputs to allow creators to copyright purely AI-generated works based on highly intelligent or creative prompting. (...)

"The Office concludes that, given current generally available technology, prompts alone do not provide sufficient human control to make users of an AI system the authors of the output. Prompts essentially function as instructions that convey unprotectable ideas," the guidance said. "While highly detailed prompts could contain the user’s desired expressive elements, at present they do not control how the AI system processes them in generating the output." (...)

New guidance likely a big yawn for AI companies

For AI companies, the copyright guidance may mean very little. According to AI company Hugging Face's comments to the Copyright Office, no changes in the law were needed to ensure the US continued leading in AI innovation, because "very little to no innovation in generative AI is driven by the hope of obtaining copyright protection for model outputs." (...)

Although the Copyright Office suggested that this week's report might be the most highly anticipated, Jernite said that Hugging Face is eager to see the next report, which officials said would focus on "the legal implications of training AI models on copyrighted works, including licensing considerations and the allocation of any potential liability."

"As a platform that supports broader participation in AI, we see more value in distributing its benefits than in concentrating all control with a few large model providers," Jernite said. "We’re looking forward to the next part of the Copyright Office’s Report, particularly on training data, licensing, and liability, key questions especially for some types of output, like code."

by Ashley Belanger, Ars Technica |  Read more:

Image: Copilot; Copyright Office

[ed. So, upshot (as I understand it): there has to be some significant (whatever that means) human involvement in the production of a work to receive copyright protection (not sure if that applies to all or parts of the end product). Designing a special prompt is not considered significant human involvement.]

Public Domain Day, 2025

January 1, 2025 is Public Domain Day: Works from 1929 are open to all, as are sound recordings from 1924! (Duke University School of Law)

Image: Duke University

Xpressenglish.com

The Beautiful People

The dystopian civilization envisioned in this Charles Beaumont story has eliminated many of today’s “distractions” such as food preparation, books and even the need for sleep. It has also specified uniform male and female appearances to be adopted by undergoing a “Transformation” (operation) upon turning nineteen. A brave girl resists the change, not only putting her job and family’s social position at risk, but also threatening social stability. As she is frog-marched to the operating theater, she realizes the sinister purpose of Transformation… to remove the population’s sense of individual identity. Themes: identity, body shaming, scientific “advancement”, superficial beauty, conformity.

Original Text / PDF / Audio (5,582 words)

Video Version

This film adaption of the story is an episode from Series Five of the famous American TV series, The Twilight Zone. It follows the original plot quite closely, with the exception of the conclusion where we see the startling result of the girl’s Transformation. Watch and enjoy!

[ed. Wow, what a find! I went looking for Isaac Asimov's "Nightfall", which in 1964 was voted by the Science Fiction Writers of America the best short science fiction story of all time. Hoping to find it in the public domain, I stumbled on this amazing site of collected short stories and novellas: xpressenglish.com (see the About page). This story (The Beautiful People) just happened to be on the first page, but there are literally thousands of other stories available. Bookmark and enjoy!]

How Tech Giants Cut Corners to Harvest Data for A.I.

In late 2021, OpenAI faced a supply problem.

The artificial intelligence lab had exhausted every reservoir of reputable English-language text on the internet as it developed its latest A.I. system. It needed more data to train the next version of its technology — lots more.

So OpenAI researchers created a speech recognition tool called Whisper. It could transcribe the audio from YouTube videos, yielding new conversational text that would make an A.I. system smarter.

Some OpenAI employees discussed how such a move might go against YouTube’s rules, three people with knowledge of the conversations said. YouTube, which is owned by Google, prohibits use of its videos for applications that are “independent” of the video platform.

Ultimately, an OpenAI team transcribed more than one million hours of YouTube videos, the people said. The team included Greg Brockman, OpenAI’s president, who personally helped collect the videos, two of the people said. The texts were then fed into a system called GPT-4, which was widely considered one of the world’s most powerful A.I. models and was the basis of the latest version of the ChatGPT chatbot.

The race to lead A.I. has become a desperate hunt for the digital data needed to advance the technology. To obtain that data, tech companies including OpenAI, Google and Meta have cut corners, ignored corporate policies and debated bending the law, according to an examination by The New York Times.

At Meta, which owns Facebook and Instagram, managers, lawyers and engineers last year discussed buying the publishing house Simon & Schuster to procure long works, according to recordings of internal meetings obtained by The Times. They also conferred on gathering copyrighted data from across the internet, even if that meant facing lawsuits. Negotiating licenses with publishers, artists, musicians and the news industry would take too long, they said.

Like OpenAI, Google transcribed YouTube videos to harvest text for its A.I. models, five people with knowledge of the company’s practices said. That potentially violated the copyrights to the videos, which belong to their creators.

Last year, Google also broadened its terms of service. One motivation for the change, according to members of the company’s privacy team and an internal message viewed by The Times, was to allow Google to be able to tap publicly available Google Docs, restaurant reviews on Google Maps and other online material for more of its A.I. products.

The companies’ actions illustrate how online information — news stories, fictional works, message board posts, Wikipedia articles, computer programs, photos, podcasts and movie clips — has increasingly become the lifeblood of the booming A.I. industry. Creating innovative systems depends on having enough data to teach the technologies to instantly produce text, images, sounds and videos that resemble what a human creates.

The volume of data is crucial. Leading chatbot systems have learned from pools of digital text spanning as many as three trillion words, or roughly twice the number of words stored in Oxford University’s Bodleian Library, which has collected manuscripts since 1602. The most prized data, A.I. researchers said, is high-quality information, such as published books and articles, which have been carefully written and edited by professionals.

For years, the internet — with sites like Wikipedia and Reddit — was a seemingly endless source of data. But as A.I. advanced, tech companies sought more repositories. Google and Meta, which have billions of users who produce search queries and social media posts every day, were largely limited by privacy laws and their own policies from drawing on much of that content for A.I.

Their situation is urgent. Tech companies could run through the high-quality data on the internet as soon as 2026, according to Epoch, a research institute. The companies are using the data faster than it is being produced.

“The only practical way for these tools to exist is if they can be trained on massive amounts of data without having to license that data,” Sy Damle, a lawyer who represents Andreessen Horowitz, a Silicon Valley venture capital firm, said of A.I. models last year in a public discussion about copyright law. “The data needed is so massive that even collective licensing really can’t work.”

Tech companies are so hungry for new data that some are developing “synthetic” information. This is not organic data created by humans, but text, images and code that A.I. models produce — in other words, the systems learn from what they themselves generate.

OpenAI said each of its A.I. models “has a unique data set that we curate to help their understanding of the world and remain globally competitive in research.” Google said that its A.I. models “are trained on some YouTube content,” which was allowed under agreements with YouTube creators, and that the company did not use data from office apps outside of an experimental program. Meta said it had “made aggressive investments” to integrate A.I. into its services and had billions of publicly shared images and videos from Instagram and Facebook for training its models.

For creators, the growing use of their works by A.I. companies has prompted lawsuits over copyright and licensing. The Times sued OpenAI and Microsoft last year for using copyrighted news articles without permission to train A.I. chatbots. OpenAI and Microsoft have said using the articles was “fair use,” or allowed under copyright law, because they transformed the works for a different purpose.

More than 10,000 trade groups, authors, companies and others submitted comments last year about the use of creative works by A.I. models to the Copyright Office, a federal agency that is preparing guidance on how copyright law applies in the A.I. era.

Justine Bateman, a filmmaker, former actress and author of two books, told the Copyright Office that A.I. models were taking content — including her writing and films — without permission or payment.

“This is the largest theft in the United States, period,” she said in an interview.

by Cade Metz, Cecilia Kang, Sheera Frenkel, Stuart A. Thompson and Nico Grant, NY Times | Read more:
Image: Jason Henry for The New York Times
[ed. Read the whole thing. Of course it's illegal. Arrogantly so. It's part of Tech's ethic - move fast, ask for permission/forgiveness later. Congress needs to get off their lazy, self-absorbed asses and do some fast moving themselves (ha!). Big Tech have simply become modern day robber barons. See also: OpenAI transcribed over a million hours of YouTube videos to train GPT-4 (The Verge).]

Turning Hums into Melodies

and also:

YouTube's first AI-generated music tools can clone artist voices and turn hums into melodies (Endgadget)

Images: YouTube

[ed. Great, just what we need: more music without musicianship. Why would anyone actually want to learn to play an instrument? Can't imagine.]

We Are All Background Actors

In Hollywood, the cool kids have joined the picket line.

I mean no offense, as a writer, to the screenwriters who have been on strike against film and TV studios for over two months. But writers know the score. We’re the words, not the faces. The cleverest picket sign joke is no match for the attention-focusing power of Margot Robbie or Matt Damon.

SAG-AFTRA, the union representing TV and film actors, joined the writers in a walkout over how Hollywood divvies up the cash in the streaming era and how humans can thrive in the artificial-intelligence era. With that star power comes an easy cheap shot: Why should anybody care about a bunch of privileged elites whining about a dream job?

But for all the focus that a few boldface names will get in this strike, I invite you to consider a term that has come up a lot in the current negotiations: “Background actors.”

You probably don’t think much about background actors. You’re not meant to, hence the name. They’re the nonspeaking figures who populate the screen’s margins, making Gotham City or King’s Landing or the beaches of Normandy feel real, full and lived-in.

And you might have more in common with them than you think.

The lower-paid actors who make up the vast bulk of the profession are facing simple dollars-and-cents threats to their livelihoods. They’re trying to maintain their income amid the vanishing of residual payments, as streaming has shortened TV seasons and decimated the syndication model. They’re seeking guardrails against A.I. encroaching on their jobs.

There’s also a particular, chilling question on the table: Who owns a performer’s face? Background actors are seeking protections and better compensation in the practice of scanning their images for digital reuse.

In a news conference about the strike, a union negotiator said that the studios were seeking the rights to scan and use an actor’s image “for the rest of eternity” in exchange for one day’s pay. The studios argue that they are offering “groundbreaking” protections against the misuse of actors’ images, and counter that their proposal would only allow a company to use the “digital replica” on the specific project a background actor was hired for. (...)

You could, I guess, make the argument that if someone is insignificant enough to be replaced by software, then they’re in the wrong business. But background work and small roles are precisely the routes to someday promoting your blockbuster on the red carpet. And many talented artists build entire careers around a series of small jobs. (Pamela Adlon’s series “Better Things” is a great portrait of the life of ordinary working actors.) (...)

Maybe it’s unfair that exploitation gets more attention when it involves a union that Meryl Streep belongs to. (If the looming UPS strike materializes, it might grab the spotlight for blue-collar labor.) And there’s certainly a legitimate critique of white-collar workers who were blasé about automation until A.I. threatened their own jobs.

But work is work, and some dynamics are universal. As the entertainment reporter and critic Maureen Ryan writes in “Burn It Down,” her investigation of workplace abuses throughout Hollywood, “It is not the inclination nor the habit of the most important entities in the commercial entertainment industry to value the people who make their products.”

If you don’t believe Ryan, listen to the anonymous studio executive, speaking of the writers’ strike, who told the trade publication Deadline, “The endgame is to allow things to drag out until union members start losing their apartments and losing their houses.”

by James Poniewozik, NY Times | Read more:

Image: Jenna Schoenefeld for The New York Times
[ed. See also: On ‘Better Things,’ a Small Story Goes Out With a Big Bang (NYT).]

The Abuse of YouTube's Copyright Policy

[ed. Important. We need a massive overhaul of copyright law, especially with AI coming.]

via:
[ed. And the rest as they say, is history. Fender Broadcaster/Telecaster. Argueably as influential as the smartphone, if not more so.]

Unauthorized Bread

Real rebellions involve jailbreaking IoT toasters

The way Salima found out that Boulangism had gone bankrupt: her toaster wouldn’t accept her bread. She held the slice in front of it and waited for the screen to show her a thumbs-up emoji, but instead, it showed her the head-scratching face and made a soft brrt. She waved the bread again. Brrt.

“Come on.” Brrt.

She turned the toaster off and on. Then she unplugged it, counted to ten, and plugged it in. Then she menued through the screens until she found RESET TO FACTORY DEFAULT, waited three minutes, and punched her Wi-Fi password in again.

Brrt.

Long before she got to that point, she’d grown certain that it was a lost cause. But these were the steps that you took when the electronics stopped working, so you could call the 800 number and say, “I’ve turned it off and on, I’ve unplugged it, I’ve reset it to factory defaults and…”

There was a touchscreen option on the toaster to call support, but that wasn’t working, so she used the fridge to look up the number and call it. It rang seventeen times and disconnected. She heaved a sigh. Another one bites the dust.

The toaster wasn’t the first appliance to go (that honor went to the dishwasher, which stopped being able to validate third-party dishes the week before when Disher went under), but it was the last straw. She could wash dishes in the sink but how the hell was she supposed to make toast—over a candle?

Just to be sure, she asked the fridge for headlines about Boulangism, and there it was, their cloud had burst in the night. Socials crawling with people furious about their daily bread. She prodded a headline and learned that Boulangism had been a ghost ship for at least six months because that’s how long security researchers had been contacting the company to tell it that all its user data—passwords, log-ins, ordering and billing details—had been hanging out there on the public internet with no password or encryption. There were ransom notes in the database, records inserted by hackers demanding cryptocurrency payouts in exchange for keeping the dirty secret of Boulangism’s shitty data handling. No one had even seen them.

Boulangism’s share price had declined by 98 percent over the past year. There might not even be a Boulangism anymore. When Salima had pictured Boulangism, she’d imagined the French bakery that was on the toaster’s idle-screen, dusted with flour, woodblock tables with serried ranks of crusty loaves. She’d pictured a rickety staircase leading up from the bakery to a suite of cramped offices overlooking a cobbled road. She’d pictured gas lamps.

The article had a street-view shot of Boulangism’s headquarters, a four-story office block in Pune, near Mumbai, walled in with an unattended guard booth at the street entrance.

The Boulangism cloud had burst and that meant that there was no one answering Salima’s toaster when it asked if the bread she was about to toast had come from an authorized Boulangism baker, which it had. In the absence of a reply, the paranoid little gadget would assume that Salima was in that class of nefarious fraudsters who bought a discounted Boulangism toaster and then tried to renege on her end of the bargain by inserting unauthorized bread, which had consequences ranging from kitchen fires to suboptimal toast (Boulangism was able to adjust its toasting routine in realtime to adjust for relative kitchen humidity and the age of the bread, and of course it would refuse to toast bread that had become unsalvageably stale), to say nothing of the loss of profits for the company and its shareholders. Without those profits, there’d be no surplus capital to divert to R&D, creating the continuous improvement that meant that hardly a day went by without Salima and millions of other Boulangism stakeholders (never just “customers”) waking up with exciting new firmware for their beloved toasters.

And what of the Boulangism baker-partners? They’d done the right thing, signing up for a Boulangism license, subjecting their process to inspections and quality assurance that meant that their bread had exactly the right composition to toast perfectly in Boulangism’s precision-engineered appliances, with crumb and porosity in perfect balance to absorb butter and other spreads. These valued partners deserved to have their commitment to excellence honored, not cast aside by bargain-hunting cheaters who wanted to recklessly toast any old bread.

Salima knew these arguments, even before her stupid toaster played her the video explaining them, which it did after three unsuccessful bread-authorization attempts, playing without a pause or mute button as a combination of punishment and reeducation campaign.

She tried to search her fridge for “boulangism hacks” and “boulangism unlock codes” but appliances stuck together. KitchenAid’s network filters gobbled up her queries and spat back snarky “no results” screens even though Salima knew perfectly well that there was a whole underground economy devoted to unauthorized bread.

She had to leave for work in half an hour, and she hadn’t even showered yet, but goddamnit, first the dishwasher and now the toaster. She found her laptop, used when she’d gotten it, now barely functional. Its battery was long dead and she had to unplug her toothbrush to free up a charger cable, but after she had booted it and let it run its dozens of software updates, she was able to run the darknet browser she still had kicking around and do some judicious googling.

She was forty-five minutes late to work that day, but she had toast for breakfast. Goddamnit.

The dishwasher was next. Once Salima had found the right forum, it would have been crazy not to unlock the thing. After all, she had to use it and now it was effectively bricked. She wasn’t the only one who had the Disher/Boulangism double whammy, either. Some poor suckers also had the poor fortune to own one of the constellation of devices made by HP-NewsCorp—fridges, toothbrushes, even sex toys—all of which had gone down thanks to a failure of the company’s cloud provider, Tata. While this failure was unrelated to the Disher/Boulangism doubleheader, it was pretty unfortunate timing, everyone agreed.

The twin collapse of Disher and Boulangism did have a shared cause, Salima discovered. Both companies were publicly traded and both had seen more than 20 percent of their shares acquired by Summerstream Funds Management, the largest hedge fund on earth, with $184 billion under management. Summerstream was an “activist shareholder” and it was very big on stock buybacks. Once it had a seat on each company’s board—both occupied by Galt Baumgardner, a junior partner at the firm, but from a very good Kansas family—they both hired the same expert consultant from Deloitte to examine the company’s accounts and recommend a buyback program that would see the shareholders getting their due return from the firms, without gouging so deep into the companies’ operating capital as to endanger them.

It was all mathematically provable, of course. The companies could easily afford to divert billions from their balance sheets to the shareholders. Once this was determined, it was the board’s fiduciary duty to vote in favor of it (which was handy, since they all owned fat wads of company shares) and a few billion dollars later, the companies were lean, mean, and battle ready, and didn’t even miss all that money.

Oops.

Summerstream issued a press release (often quoted in the forums Salima was now obsessively haunting) blaming the whole thing on “volatility” and “alpha” and calling it “unfortunate” and “disappointing.” They were confident that both companies would restructure in bankruptcy, perhaps after a quick sale to a competitor, and everyone could start toasting bread and washing dishes within a month or two.

by Cory Doctorow, Ars Technica |  Read more:

Image: Tor Books

[ed. Goes hand in hand with Right to Repair. See also: What is IoT? (Oracle); and, Internet of Things (Wikipedia).

DRM: The Urinary Tract Infection Business Model

Most of the pre-digital offers aren't available at any price: you could buy a DVD and keep it forever, even if you never went back to the store again. If you "buy" a video on Prime or YouTube and then cancel your subscription and delete your account, you lose your "purchase."

If you buy a print book, you can lend it out or give it away to a friend or a library or a school. Ebooks come with contractual prohibitions on resale, and whether an ebook can be loaned is at the mercy of publishers, and not a feature you can give up in exchange for a discount.

For brain-wormed market trufans, the digital media dream was our nightmare. It was something I called "the urinary tract infection business model." With non-DRM media, all the value flowed in a healthy gush: you could buy a CD, rip it to your computer, use it as a ringtone or as an alarmtone, play it in any country on any day forever.

With DRM, all that value would dwindle from a steady stream to a burning, painful dribble: every feature would have a price-tag, and every time you pressed a button on your remote, a few cents would be deducted from your bank-account ("Mute feature: $0.01/minute").

Of course, there was no market for the right to buy a book but not the right to loan that book to someone else. Instead, giving sellers the power to unilaterally confiscate the value that we would otherwise get with our purchases led them to do so, selling us less for more.(...)

Back when PVRs like Tivo entered the market, viewers were as excited about being able to skip ads as broadcasters and cable operators were furious about it. The industry has treated ignoring or skipping ads as a form of theft since the invention of the first TV remote control, which was condemned as a tool of piracy, since it enabled viewers to easily change the channel when ads came on.

The advent of digital TV meant that cable boxes could implement DRM, ban ad-skipping, and criminalize the act of making a cable box that restored the feature. But early cable boxes didn't ban ad-skipping, because the cable industry knew that people would be slow to switch to digital TV if they lost this beloved feature.

Instead, the power to block ads was a sleeper agent, a Manchurian Candidate that lurked in your cable box until the cable operators decided you were sufficiently invested in their products that they could take away this feature.

This week, Sky UK started warning people who pressed the skip-ad button on their cable remotes that they would be billed an extra £5/month if they fast-forwarded past an ad. The UTI business model is back, baby – feel the burn!

https://www.examinerlive.co.uk/news/sky-warns-customers-charged-5-25644831

This was the utterly foreseeable consequence of giving vendors the power to change how their devices worked after they sold it to you, under conditions that criminalized rivals who made products to change them back. (...)

This is a case I've made to other reviewers since, but no one's taken me up on my suggestion that every review of every DRM-enabled device come with a bold warning that whatever you're buying this for might be taken away at any time. In my opinion, this is a major omission on the part of otherwise excellent, trusted reviewers like Consumer Reports and Wirecutter.

Everywhere we find DRM, we find fuckery. Even if your cable box could be redesigned to stop spying on you, you'd still have to root out spyware on your TV. Companies like Vizio have crammed so much spyware into your "smart" TV that they now make more money spying on you than they do selling you the set.

https://pluralistic.net/2021/11/14/still-the-product/#vizio

Remember that the next time someone spouts the lazy maxim that "If you're not paying for the product, you're the product." The problem with Vizio's TVs isn't that they're "smart." The problem isn't that you're not paying enough for them.

The problem is that it's illegal to unfuck them, because Vizio includes the mandatory DRM that rightsholders insist on, and then hide surveillance behind its legal minefield.

The risks of DRM aren't limited to having your bank-account drained or having your privacy invaded. DRM also lets companies decide who can fix their devices: a manufacturer that embeds processors in its replacement parts can require an unlock code before the device recognizes a new part. They can (and do) restrict the ability of independent service depots to generate these codes, meaning that manufacturers get a monopoly over who can fix your ventilator, your tractor, your phone, your wheelchair or your car.

https://doctorow.medium.com/about-those-kill-switched-ukrainian-tractors-bc93f471b9c8

The technical term for these unlock codes is "VIN-locking," and the "VIN" stands for "vehicle identification number," the unique code etched into the chassis of every new car and, these days, burned into into its central computerized controller. Big Car invented VIN-locking. (...)

With Felony Contempt of Business Model, repair is just the tip of the iceberg. When security experts conduct security audits of DRM-locked devices, they typically have to bypass the DRM to test the device.

Since bypassing this DRM exposes them to legal risks, many security experts simply avoid DRM-locked gadgets. Even if they are brave enough to delve into DRM's dirty secrets, their general counsels often prohibit them from going public with their results.

This means that every DRM-restricted device is a potential reservoir of long-lived digital vulnerabilities that bad guys can discover and exploit over long timescales, while honest security researchers are scared off of discovering and reporting these bugs.

That's why, when a researcher goes public with a really bad security defect that has been present for a very long time, the system in question often has DRM – and it's why media devices are so insecure, because they all have DRM.

by Cory Doctorow, Pluralistic |  Read more:
Image: Cryteria, CC BY 3.0, modified

[ed. DRM: Digital Rights Management (DRM) technology as defined by Section 1201 of the Digital Millennium Copyright Act (DMCA), which banned removing copyright locks on penalty of a 5-year prison sentence and a $500k fine.]

The $105 Fix That Could Protect You From Copyright-Troll Lawsuits

Call it ingenious, call it evil or call it a little of both: Copyright troll Righthaven is exploiting a loophole in intellectual property law, suing websites that might have avoided any trace of civil liability had they spent a mere $105.

That's the fee for a blog or other website to register a DMCA takedown agent with the U.S. Copyright Office, an obscure bureaucratic prerequisite to enjoying a legal "safe harbor" from copyright lawsuits over third-party posts, such as reader comments.

There's no better time to become acquainted with that requirement.

Founded in March, the Las Vegas-based Righthaven has begun buying out the copyrights to newspaper content of the Las Vegas Review-Journal for the sole purpose of suing blogs and websites that re-post, or even excerpt, those articles without permission. The company has settled about 60 of 160 cases for a few thousand dollars each, and plans to expand its operations to other newspapers across the country.

Many of its lawsuits arise, not from articles posted by a website's proprietors, but from comments and forum posts by the site's readers. Under the Digital Millennium Copyright Act, a website enjoys effective immunity from civil copyright liability for user content, provided they, promptly remove infringing material at the request of a rightsholder. That's how sites like YouTube are able to exist, and why Wired.com allows users to post comments to our stories without fear that a single user's cut-and-paste will cost us $150,000 in court.

But to dock in that legal safe harbor, a site has to, among other things, register an official contact point for DMCA takedown notices, a process that involves filling out a form and mailing a check to the government. An examination of Righthaven's lawsuits targeting user content suggests it's specifically going after sites that failed to fill out that paperwork.

"The DMCA is a good deterrent from being sued," says Kurt Opsahl, a staff attorney with the Electronic Frontier Foundation, "Complying with conditions of eligibility for the safe harbor is a good thing to do. It probably will prevent somebody from suing you in the first place."

by David Kravitz, Wired |  Read more:

Image: uncredited/US Copyright Office

[ed. From 2010 but still relevant (as far as I know - a new Copyright Small Claims Court has recently been established but its usefulness and authority seem uncertain). The US Copyright Office fee is now only $6 and the url for DMCA registration can be found here. See also: "Is the DMCA's Notice-and-Takedown System Working in the 21st Century?” (pdf). Testimony before the Senate Committee on the Judiciary and Subcommittee on Intellectual Property; June 2, 2020.]

Lexmark’s Toxic Printer-Ink

“Every pirate wants to be an admiral.” That is a truism of industrial policy: the scrappy upstarts that push the rules to achieve success then turn into law-and-order types who insist that anyone who does unto them as they did unto others is a lawless cur in need of whipping.

This is true all over, but there’s an especial deliciousness to see it applied to printers and printer ink, always a trailblazer in extractive, deceptive and monopolistic practices of breathtaking, shameless sleaze.

https://www.eff.org/deeplinks/2020/11/ink-stained-wretches-battle-soul-digital-freedom-taking-place-inside-your-printer

Pierre Beyssac, a director of Internet Europe, recounts his campaigns in the Printer Wars, which start when he ordered a non-wifi-enabled Lexmark printer but got shipped the wifi version.

https://twitter.com/pbeyssac/status/1386988213923983362

He didn’t mind…except that the two models use different models of ink-cartridge, and he’d preordered €450 worth of cartridges, which were nonreturnable by the time he discovered the error.

The cartridges are identical; all that stops them from working is that they’re DRM-locked, with software that refuses to run if you put it in a different model printer (this lets Lexmark charge more for an identical product if they think some customers are price-insensitive).

But there’s an answer - a Chinese vendor sells a €15 conversion kit that bypasses the DRM (this is probably illegal in the EU under Article 6 of 2001’s EUCD). Beyssac was able to salvage his €450 ink investment.

But the adventure prompted him to investigate further. He discovered that Lexmark uses DRM to “regionalize” cartridges (similar to DVD regions): a cart bought in region 1 won’t work in a printer bought in region 2.

Hilariously, Lexmark claims that this is because each cartridge is specially tuned for each region’s “humidity.” By way of rebuttal, Beyssac points out that all of Russia shares a region with all of Africa (!).

Now all of this would be idiotic enough if it were any old printer monopolist, but because this is Lexmark, it is especially delicious,.

Lexmark, after all, fought one of the most important battles of the Printer Wars - and lost. Lexmark vs Static Controls was brought by Lexmark when it was a division of the early tech monopolist IBM.

https://www.eff.org/deeplinks/2019/06/felony-contempt-business-model-lexmarks-anti-competitive-legacy

Lexmark sold toner cartridges filled with the cheap and abundant element carbon, and it wanted to charge vintage Champagne prices for it. To that end, Lexmark ran a 55-byte program in a “security chip” that flipped an “I am full” bit to “I am empty” when the toner ran out.

Lexmark’s competitor Static Controls reverse-engineered this trivial program so you could refill a cartridge and flip it back to “I am full” so the printer would recognize it. In 2002 Lexmark sued, under Sec 1201 of the recently passed Digital Millennium Copyright Act.

DMCA 1201 made it a felony to traffick in a device that “bypassed an access control for a copyrighted work.” The judge asked Lexmark which copyrighted work was in its printer cartridges (it wasn’t the carbon powder!). Lexmark said it was the 55-bytle program.

The judge handed Lexmark its own ass, ruling that while software could be copyrighted, a 55-byte I-am-full/empty program didn’t rise to the level of copyrightability - it wasn’t even a haiku.

Lexmark lost, and today, Lexmark is…*a division of Static Controls.*

That’s right, the company that’s using all this bullshit DRM to prevent people from using their printers the way they want to is the company that did the exact same thing to IBM, won its court case, and then merged with the company whose racket it had destroyed.

Every pirate *seriously* wants to be an admiral.

But here’s the thing. Lexmark/Static turned on the fact that 55-byte programs (all that fit affordably in a primitive 2002 chip) wasn’t a copyrighted work. The cartridges Lexmark sells now have thousands of lines of code.

There’s whole OSes in there. These *are* copyrightable. As is the OS in every embedded system we buy, from car engine parts to smart speakers to pacemakers. That means that companies can use DMCA 1201 to prevent rivals from unlocking lawful features in their products.

They can use it to block independent repair and independent security audits. They can make it illegal to use any product you own in ways that disadvantages their shareholders, even if that’s what’s good for you.

Despite the “C” in DMCA standing for “copyright,” this isn’t copyright protection, it’s felony contempt of business model - a legally enforceable obligation to arrange your life to benefit multinational corporations’ shareholders.

And worse, this law has been spread around the world thanks to the US Trade Rep: it’s in 2001’s EUCD and Canada’s 2012 Copyright Modernization Act. Last summer, Mexico passed an even more extreme version as part of the USMCA.

If you think this shit is odious when it’s in your printer, you’re going to hate it when it’s in your toothbrush, wristwatch, car engine and toaster.

https://arstechnica.com/gaming/2020/01/unauthorized-bread-a-near-future-tale-of-refugees-and-sinister-iot-appliances/

In 2016, EFF brought a lawsuit to overturn DMCA 1201 on behalf of Bunnie Huang and Matt Green. It has been working its way through the courts ever since.

https://www.eff.org/cases/green-v-us-department-justice

by Cory Doctorow, Read more:

Image: uncredited

Army of Pharmaceutical Lobbyists Descend on Washington to Block Generic Covid-19 Vaccines

The pharmaceutical industry is pouring resources into the growing political fight over generic coronavirus vaccines.

Newly filed disclosure forms from the first quarter of 2021 show that over 100 lobbyists have been mobilized to contact lawmakers and members of the Biden administration, urging them to oppose a proposed temporary waiver on intellectual property rights by the World Trade Organization that would allow generic vaccines to be produced globally.

Pharmaceutical lobbyists working against the proposal include Mike McKay, a key fundraiser for House Democrats, now working on retainer for Pfizer, as well as several former staff members to the U.S. Office of Trade Representative, which oversees negotiations with the WTO.

Several trade groups funded by pharmaceutical firms have also focused closely on defeating the generic proposal, new disclosures show. The U.S. Chamber of Commerce, the Business Roundtable, and the International Intellectual Property Alliance, which all receive drug company money, have dispatched dozens of lobbyists to oppose the initiative.

The push has been followed by a number of influential voices taking the side of the drug lobby. Last week, Sen. Thom Tillis, R-N.C., released a letter demanding that the administration “oppose any and all efforts aimed at waiving intellectual property rights.” Howard Dean, the former Democratic National Committee chair, has similarly criticized the proposal, echoing many of the arguments of the drug industry.

Currently, only 1 percent of coronavirus vaccines are going to low-income countries, and projections show much of the world’s population may not be vaccinated until 2023 or 2024. In response, a coalition of countries, led by India and South Africa, have petitioned the WTO to temporarily suspend intellectual property rights on coronavirus-related medical products so that generic vaccines can be rapidly manufactured.

The waiver requests a suspension of IP enforcement under the Trade-Related Aspects of Intellectual Property Rights, or TRIPS, treaty. If granted, local pharmaceutical plants could be granted compulsory licenses to produce coronavirus vaccines without the threat of being sued by the license holder.

The proposal has gained traction globally, with hundreds of members of the European Parliament, dozens of American lawmakers led by Sen. Bernie Sanders, I-Vt., and increasingly vocal voices in the public health community expressing support.

But the waiver petition has encountered fierce opposition from leading drug companies, who stand to lose profit and who fear that allowing a waiver would lead to less stringent IP enforcement in the future. (...)

But global public health activists remain skeptical.

“The drug company lobbyists are saying the TRIPS waiver won’t increase the supply of vaccines, but if that’s true, why do they oppose it? Because they think it will in fact expand production,” noted James Love, director of Knowledge Ecology International, a group that supports the waiver petition.

“The waiver itself, from a legal point of view, is most important for eliminating two restrictive provisions on the TRIPS, both dealing with exports,” added Love. “From a political point of view, it is more important, giving a green light to use existing compulsory licensing authority and putting pressure on vaccine manufacturers to do more voluntary agreements.”

by Lee Fang, The Intercept |  Read more:

Image: Ben Hasty/MediaNews Group via Getty Images

[ed. Even as hundreds of thousands die in India. See also: Maintaining Intellectual Property Amid Covid-19 (The Economist).]

There Shouldn’t Be Vaccine Patents in a Health Crisis

The extremity of the Covid-19 vaccine apartheid cannot be overstated. As of mid-February, the United States had acquired enough vaccines for three times its total population, while in 130 countries, not a single vaccine shot had been administered. This is no accident, but the direct and long-predicted result of a vaccine production and access model tied to privatized intellectual property and entrenched medicine monopolies.

The majority of Americans want President Joe Biden to act to end this intolerable vaccine inequality. Sixty percent of U.S. voters said they wanted Biden to endorse a motion at the World Trade Organization that would waive patent barriers and other crucial intellectual property protections on Covid-19 vaccines, according to a new poll from Data for Progress and the Progressive International. This would enable a significant expansion of global production and rollout, while disrupting the extraordinary profiteering of pharmaceutical leviathans in a death-dealing pandemic.

The refusal on the part of major pharmaceutical companies and Western powers to ensure the sharing of vaccine patent and production information has been an immeasurable moral failure, not to mention a most foolish approach to a pandemic in need of a global response. The new poll also makes clear that, for Biden, blocking vaccine sharing is not even a popular position. Seventy-two percent of registered Democrats want the president to remove patent barriers to speed vaccine rollout and reduce costs for less affluent nations.

At present, WTO rules over intellectual property mean that most countries are barred from producing the leading vaccines that have been approved, including those by Pfizer, Moderna, and Johnson & Johnson, which are U.S.-produced. Last October, South Africa and India brought a proposal to the WTO for a temporary waiver that would apply to certain intellectual property on Covid-19 medical tools and technologies until global herd immunity is reached.

It garnered majority support from member states: A hundred countries support the proposal overall, and 58 governments now co-sponsor it; 375 civil society organizations, including Doctors Without Borders, Oxfam, and Amnesty International have signed a letter in support.

The waiver was blocked, however, by a small number of wealthy nations and blocs, including the U.S., the U.K., and the EU, that chose instead to leave vaccine production in the hands of only a few pharmaceutical companies, which, through public-private partnerships, have ensured priority access to the rich countries in turn.

There are no legitimate grounds for maintaining patent barriers in this health crisis unless you’re a pharmaceutical giant making billions or, of course, a Western power invested in maintaining global power through neoliberalization, market monopolies, and racialized capitalism. The strongest advocates of intellectual property protections in medicine, Bill Gates chief among them, have offered no ethical basis for the current status quo beyond vague gestures to protecting “innovation.”

Even a self-interested approach, that sees the devastating economic possibilities of a mutating virus turning the pandemic into something endemic, should make the necessity of a patent waiver clear. The commitment to monopoly medicine is, in this sense, ideological.

The WTO proposal needs backing by a consensus of the the organization’s 164 members to pass. It was under President Donald Trump that the U.S. blocked the patent waiver: a move that came as no surprise for an administration of white nationalists, which proudly left the World Health Organization. A change of tack by the Biden administration, which rejoined the WHO on Day One, could go a long way in pushing other wealthy countries to follow suit. (...)

Sen. Bernie Sanders, I-Vt., chair of the Senate Budget Committee, responded to the poll saying the U.S. should be “leading the global effort to end the coronavirus pandemic.” According to Sanders, “a temporary WTO waiver, which would enable the transfer of vaccine technologies to poorer countries, is a good way to do that.” More than 60 lawmakers have added their signature to a letter pushing Biden to save lives through a global vaccination drive.

by Natasha Lennard, The Intercept | Read more:
Image: Jessica Rinaldi/The Boston Globe via Getty Images
[ed. See also: Let Other Countries Copy the Covid Vaccines; and How Bill Gates Impeded Global Access to Covid Vaccines (TNR).]

Universal’s Bob Dylan Catalog Buy Is About Survival

In the 24 hours since Bob Dylan sold his peerless songwriting catalog to Universal Music Group for a nine-figure sum, discussion has, understandably, centered on Dylan himself.

I keep hearing the same two questions: Will this affect the way fans digest his music? (No, but expect to hear his hits in more perfume commercials.) And what might have been Dylan’s motivation for selling his crown jewels now? (Music catalogs are fetching all-time-high prices, he’s nearly 80 years old, and Joe Biden may significantly hike taxes on big U.S. asset sales when he becomes president.)

What hasn’t drawn as much attention is the motivation of the buyer, Universal Music Publishing Group (UMPG), which my sources indicate paid closer to $400 million than $300 million to get Dylan’s 600 songs. Obviously, Dylan’s catalog is one of the most evergreen collections of music to ever be committed to notation. As Universal boss Sir Lucian Grainge said in an internal email yesterday: “In an instant, we have forever transformed the legacy of this company.” He hinted that UMPG won the deal against stiff industry competition because of its historical pedigree: “That this opportunity came to us was no accident,” he wrote. “When you put songwriters first, when you achieve unparalleled value for the art they create, when your track record is clear and consistent then the best of the best come to you.”

Grainge’s choice of words here is very deliberate. The “clear and consistent track record” comment is an obvious slight against newer companies — like Hipgnosis Songs Fund and Primary Wave — which have recently been nibbling into Universal’s market share. These firms have quickly acquired triple-A publishing catalogs from the likes of Bob Marley, Whitney Houston, Stevie Nicks, and Mark Ronson, using institutional investor money to pay more than traditional music companies like Universal are willing to.

Universal’s Dylan acquisition, then, is a landmark statement from the world’s biggest music rights company: We’re not going to sit back and just let the greatest music in history be auctioned off to Wall Street under our nose.

Which raises the question: Who’s this statement for? To a degree, it’s for the current investors of Universal’s publicly-traded French parent Vivendi. But here’s the thing: Vivendi has confirmed Universal Music Group will be spun out for an IPO in 2022. In doing so, it’s deliberately seeded excitement amongst new would-be investors, who have seen music rights become one of the most reliable growth assets of the pandemic era.

The bear-case counterargument on Universal is that it has allowed cash-rich industry upstarts to reduce its commercial leverage; maybe, critics have said, Universal doesn’t have the fight or the funds to buy triple-A catalogs in the modern era. So — as its two-fingers to the financial naysayers — Universal went out and snatched up 600 Bob Dylan songs.

The Dylan buy is Universal putting a flag in the ground that reads, “We’re still Number One, and we’re staying that way.” The company wants to demonstrate its ability to survive, long-term, as king of the jungle — and, of course, to drive that future IPO price through the roof.

This is a trend amongst the major music companies, by the way — a public fightback against existential threats to their dominant position — that has really come to the fore during the pandemic. In October, Warner Music Group took the unusual step of raising $250 million in debt with the express intention of spending it on two acquisitions, at a combined cost of $338 million. My sources suggest that one of these deal, which took up the majority of the $338 million, saw Warner quietly acquire the publishing catalog of an all-time giant of music.

by Tim Ingram, Rolling Stone |  Read more:

Image: Gianni Schicchi/AP

Neil Young

Neil Young Sues Trump Campaign For Using ‘Rockin’ In The Free World’ Without Permission (TPM)

[ed. But this one's ok.]

It’s Time to Archive the Internet Archive

Five of the world's largest publishers sued the Internet Archive, claiming its open-access digital library is a mass infringement on their copyright. The move puts the internet’s most important archive in danger, and has at least got some data hoarders talking about archiving the Internet Archive, and what that would even look like.

Last week, Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC filed a copyright infringement lawsuit against the Internet Archive and five ‘Doe’ defendants, claiming that the Internet Archive is a piracy site.

In March, the Internet Archive set up a new service for people displaced from library and educational access due to COVID-19, called the "National Emergency Library." Nearly 1.4 million books are available in full for anyone to download and read, without a waitlist, until the end of June or the end of the coronavirus pandemic crisis in the US, according to an announcement on their site.

While damages haven't been set, the publishers could claim up to $150,000 in statutory damages per infringement, for each of the 1.4 million copyright works in the emergency library. They're also demanding a preliminary and permanent injunction of the Internet Archive, and anyone involved with it, from reproducing and distributing more works, and that all current copyrighted copies on the site be destroyed—effectively shutting down the entire library. (...)

The move puts one of the internet’s largest repositories of knowledge in peril. Over on the DataHoarder subreddit, threads have been started about what it would take to archive the archive, which holds dozens of petabytes of data and is constantly growing (there have been attempts to simply understand the sheer amount of data the archive holds). Academics have been saying for years that the Internet Archive must be made more resilient by creating backups of the backups and storing them in other locations. When Donald Trump was elected president, the Internet Archive announced it was making a backup in Canada. Egypt’s Bibliotheca Alexandrina once had a backup of the Internet Archive’s Wayback Machine, but it has not been updated in years.

by Samantha Cole and Jason Koebler, Motherboard | Read more:
Image: Wikimedia Commons
[ed. For background, see also: You Can Now Access 1.4 Million Books for Free Thanks to the Internet Archive (Motherboard).]

Rock Riff Rip-Off

In a little-noticed moment during Led Zeppelin’s Stairway to Heaven plagiarism trial, a Guitar God inadvertently revealed that his industry’s most famous (and valuable) tunes were up for grabs. It was June 2016, on the third day of the proceedings in Los Angeles federal court, when Jimmy Page took the stand. He faced examination by attorney Francis Malofiy. At issue in the trial was whether Page had stolen the introduction of 1971’s Stairway from the obscure 1968 instrumental Taurus by the band Spirit.

To the frustration of Malofiy, the judge said it was irrelevant whether the songs’ album recordings sounded alike. What mattered was whether Page had lifted the Spirit song as it had been written on a single page of music submitted to the U.S. Copyright Office in 1967. The Taurus “deposit copy,” as it’s called, is a spare document handwritten by a record company scribe who listened to the record and then distilled it into only 124 notes of piano music. The reverse engineering was required to comply with U.S. law, which before 1978 allowed songs to be registered only via sheet music “deposited” in Washington. When a pianist performed the Taurus deposit copy for jurors earlier in the trial, it didn’t sound much like the Spirit record, let alone Stairway.

In a bind, Malofiy turned the issue on its head:

“I’d like to pull up Exhibit 2708, which is the Stairway to Heaven deposit copy,” he told the court. The sheet music appeared, projected on a screen between Page’s witness stand and the jury box. “Can you point to where on the deposit copy of Stairway to Heaven it indicates the solo?” Malofiy asked, referring to the electric guitar finale that’s considered one of Page’s crowning achievements.

“I’ll have to have a look,” Page said, then scanned the first bit. “Um, I think you need to scroll down one more.” The second folio came up on the screen. “Please scroll one more,” he said as more music appeared. “Please, one more,” he said again as the fourth and final bit came up. “OK. That’s it. I’ve read it.”

“You would agree that there’s no solo on the deposit copy … of Stairway to Heaven, which was deposited with the office?”

“Yeah, we—I agree with that. It’s not in there, no,” Page said.

Malofiy then pointed to the first measure. On the record, Stairway begins with a finger-picked introduction—one of the most recognizable musical passages of the past half-century, mimicked by millions of aspiring guitarists. That iconic intro, Malofiy said, “That’s not represented in the deposit copy?”

“No,” Page said. “You’re correct.”

Sitting in the courtroom that day, I couldn’t believe what I was hearing. Were some of the most famous passages in rock history really not protected by copyright? And did this also apply to any number of other songs whose deposit copies were certainly equally lacking? I felt as if someone had dropped $100 bills on the ground. Countless unregistered bits of song—guitar solos, bass lines, horn parts, background vocals—could be sitting out there exposed to unscrupulous financial exploitation. Ring tones, TV ads, film soundtracks—or even entire new songs—could be made and sold from these orphaned riffs. (...)

Led Zeppelin won at the 2016 trial, but the matter isn’t resolved, and the stakes seem to have actually grown. Malofiy appealed, and in September, a three-judge panel on the 9th U.S. Circuit Court of Appeals in San Francisco ordered a Stairway do-over trial for procedural reasons. At the heart of the judges’ decision was a potentially industry-changing declaration: For pre-1978 unpublished songs, the deposited sheet music “defines the scope of the copyright.”

That ruling set off second appeals by both sides. Led Zeppelin asked for the original verdict to be upheld. Malofiy asked the entire appeals court, and not only three judges, to decide on the narrow issue of deposit copies. In early June, the San Francisco appeals court voted to have a rare 11-judge panel rehear the case in September, suspending the earlier appeals decision. The only topic on which the court has asked the parties for briefs so far is the primacy of deposit copies. The litigation has broader implications, undergirding a high-profile New York case in which plaintiffs are demanding more than $100 million for the alleged theft of Marvin Gaye’s Let’s Get It On for Ed Sheeran’s hit Thinking Out Loud .

The irony is there may be no winning outcome for Led Zeppelin. As Page’s testimony showed, the harder his lawyers push for strict readings of the copyright sheet music, the more they weaken the protection for Stairway. They’re going all-out, too. The legal team for the band and its publisher, Warner Music Group Corp., wrote in a December filing about “the primacy of deposited sheet music” as a bedrock of their industry and how “contracts are entered into in reliance on the certainty that a copyright protects the copyrighted work.”

by Vernon Silver, Bloomberg |  Read more:
Image: Library of Congress
[ed. Here's a side-by-side comparison of Taurus vs. Stairway (YouTube).]

Locast, a Free App Streaming Network TV, Would Love to Get Sued

On the roof of a luxury building at the edge of Central Park, 585 feet above the concrete, a lawyer named David Goodfriend has attached a modest four-foot antenna that is a threat to the entire TV-industrial complex.

The device is there to soak up TV signals coursing through the air — content from NBC, ABC, Fox, PBS and CBS, including megahits like “This Is Us” and this Sunday’s broadcast of Super Bowl LIII. Once plucked from the ether, the content is piped through the internet and assembled into an app called Locast. It’s a streaming service, and it makes all of this network programming available to subscribers in ways that are more convenient than relying on a home antenna: It’s viewable on almost any device, at any time, in pristine quality that doesn’t cut in and out. It’s also completely free.

If this sounds familiar, you might be thinking of Aereo, the Barry Diller-backed start-up that in 2012 threatened to upend the media industry by capturing over-the-air TV signals and streaming the content to subscribers for a fee — while not paying broadcasters a dime. NBC, CBS, ABC and Fox banded together and sued, eventually convincing the Supreme Court that Aereo had violated copyright law. The clear implication for many: If you mess with the broadcasters, you’ll file for bankruptcy and cost your investors more than $100 million.

Mr. Goodfriend took a different lesson. A former media executive with stints at the Federal Communications Commission and in the Clinton administration, he wondered if an Aereo-like offering that was structured as a noncommercial entity would remain within the law. Last January, he started Locast in New York. The service now has about 60,000 users in Houston, Chicago, Boston, Philadelphia, Dallas and Denver as well as New York, and will soon add more in Washington, D.C.

Mr. Goodfriend, 50, said he hoped to cover the entire nation as quickly as possible. “I’m not stopping,” he said. “I can’t now.”

The comment is basically a dare to the networks to take legal action against him. By giving away TV, Mr. Goodfriend is undercutting the licensing fees that major broadcasters charge the cable and satellite companies — a sum that will exceed $10 billion this year, according to the research firm Kagan S&P Global Market Intelligence. For cable customers, the traditional network channels typically add about $12 to a monthly bill.

With consumers increasingly willing to piece together their own bespoke packages of content — paying a few bucks to Netflix here, a few to HBO there — anything that encourages people to cut their cable cords is a challenge to the cable TV empire. That calculus makes tiny Locast, whose modest website (“Help us free your TV!”) asks for donations starting at $5, perhaps the most audacious media experiment in years. (...)

Mr. Goodfriend is not a rich tech entrepreneur or a wealthy heir — just a lawyer who has made a decent living. Locast could still meet the fate of Aereo and be sued into financial oblivion by the networks. So why is he doing this?

The answer is partly principle, and partly intellectual mischief: With his public-private background, he has spotted an imbalance in the media ecosystem, he said, and decided to give the whole thing a shake.

“I ask people all the time, ‘Do you know you’re supposed to get television for free?’” Mr. Goodfriend said during an interview in Central Park, gesturing to a gaggle of visitors. “Most people under 50 don’t get it.”

by Edmund Lee, NY Times | Read more:
Image: Jeenah Moon