BC Law IPTF Blog

OiNK’s new home page is now hawking waffles—and links to a Google search on”what to use instead of oink.” (The first result is brokep’s (of The Pirate Bay) blog post, appropriately titled, “What to use instead of Oink (waffleswaffleswaffles and jam).”)

This seems to be a message to the world to support the “hydra” model of seeding and leeching content: Use lots of little sites instead of gravitating to a couple of big ones. The beast should be a many-headed hydra, and when you cut off one head, two more grow to take its place.

brokep was the first to herald this idea:

“So public message to people - start up your own torrent sites, make the internet the hydra it is and needs to be. If there’s hundreds of sites, they can’t all be shut down. And well, if they shut down the few that are today, there will be hundreds of sites, I’m sure, but let’s start them before so we can spread the word of them easier.”

Here’s another write-up on the OiNK and brokep talking about the hydra concept.

What a fantastic, rich concept in such a fascinating application. Decentralize for stability. But also specialize to serve the market better. On top of it all—globalize to protect international civil rights.

So while in this current context, it’s just about sharing music, it points down to deeper core principles about how these types of movements need to operate.

In response to this dig on This Recording (where Alex Carnevale compares siding with the RIAA as supporting lynching): I can’t say that I support what the RIAA is doing. I think, reflecting upon Tim Wu’s articles on socially-acceptable crime, the RIAA is a private interest forcing the hand of government to expend tax-payers’ money in an area it might not be all that interested in. But by the current writing of the law, it has every right to do this.

Tim Wu argues that this is a failure in the political process: We have this law that doesn’t make sense and no one who can change it. Something has to change. Maybe the law *has* to change—but we, the people, don’t have the money or the political willpower to do that. In today’s society, we’d ideally want businesses to adjust their models, practices, and ultimately their ethics to suit their consumer base. But we know that’s not going to happen.

Our inability to act towards our own wants and desires in this sense is credited to our fear of the government watching us, catching us, and throwing us in the can. We get scared off from demonstrating to the government—or to the RIAA—what we think the law should really be.

In an upcoming article on privacy and e-mail, I wrote:

The panoptical society restricts individual autonomy by “unnecessarily constraining individual decision-making” through the constant threat of visibility leveraging the inherently unbalanced power dynamic favoring governmental actors.

(That’s academic-speak for saying the government, by watching us, scares us from making our own decisions about things.)

With the courts and Congress offering little protection for [our privacy concerns], and with the threat of a panoptical society on the horizon, individuals may be forced to adopt extralegal methods of protecting their perceived expectations of privacy. Fortunately, a number of technological innovations offer a variety of methods of prophylaxis from government intrusion.

And this is where things like OiNK come in. OiNK was an “extralegal” method of protecting our perceived rights. But it wasn’t secure enough. Now, to protect those perceived rights, people could then resort to better, more technologically savvy methods. Tighter, “more private” trackers. Tighter file-sharing communities. WASTE networks. Maybe even (gasp) BitTorrent over Tor.

And then hopefully Big Music and the government will see where this leads: They lose their ability to control the people when the people fritter away underground. Is this the type of arms race we want to be involved in? There’s obviously something wrong here—there’s this well-established disconnect between how music is consumed and how Big Music wants to distribute it. So someone’s got to give. And might it not be, in this case, the purpose of business to cede to consumers, and the government to cede to the people?

I suspect the MediaDefender debacle and this OiNK shut-down just hits the techie, hipster, and blogging communities closer to home than the everyman Napster and Kazaa controversies. This will soon blow over, and we’ll be back to the SNAFU we’ve be involved in for the last 20 odd years.

Idolator has two enlightening exchanges with US attorneys about whether US-based OiNK users are at risk for copyright infringement. The take-home is “yes,” but the likelihood of prosecution, on the other hand, is low:

I think it depends on how quickly the RIAA gets its hands on any of the server logs. That’s partly facetious, but I don’t see the U.S. Department of Justice using its resources right now for criminal investigations of copyright infringement. The overseas raids were criminal matters–I don’t expect the same here. Plus, there’s an interesting issue of whether the UK and Dutch authorities would share the information with a private party.  There are long-running debates over data treatment and security between the US and EU.

But if RIAA does get the logs and data, then there will be hell to pay for anyone who used credit cards [to donate]; those who maintained membership via upload will be a little harder to trace because you’d have to follow the IP addresses, and ISPs are not always willing to hand over their customers without court orders

The conversants also note that most of the transaction were done by PayPal. While eBay has an interest in protecting its users’ privacy, a simple court order might do the trick in tracking down copyright violators—should the RIAA and the US government choose to do so.   

This reminds me of this great series of articles on Slate by Tim Wu about how politics prevents (or dissuades by inefficiency in reform and execution) the prosecution of certain crimes—crimes that society, for one reason or another (particularly because of class), has chosen to accept. It all comes down to how important that crime is for the people in charge.

In this case, US-based users might be isolated a bit because the US might not have the interest and time to pursue this claim with cross-border implications. But I don’t believe that the RIAA doesn’t have the time or interest. This just smells like something they’d like to nip in the bud. Though the problem is the “scene”—those involved in the music industry who do the initial leaking—cracking down on the outlets for their indie-cred egos might be an effective way of stemming these illegal pre-releases.

I think this is more of an important issue than people are making it out to be. While before I wondered why the RIAA isn’t going after the big guys—I now think that going after OiNK was the *smart* thing to do. It’s like going after the yuppie coke snorters in the 80s before cheap crack hit the streets. It’s going after the trend-setters (the OiNK scenesters) and not the trend-followers (the unwashed masses on The Pirate Bay).

As can be seen by the record sales from the Kanye West vs. 50 Cent faux brawl (or Lance Bass vs. 50 Cent all-out rumble), or for country music sales, the most popular music isn’t hurting. It’s the up-and-coming, the trend-setters, and the scene-busters where most of the damage is felt. People support illegal file-sharing to help out the Cold War Kids or the Clap Your Hands Say Yeah! bands, but I’ve listened to Tegan and Sara and haven’t spent a penny on them yet. (Sorry for the name-dropping, I’m having a bad time thinking of good band examples.)

But Tegan and Sara (and now great bands like Rilo Kiley) are what’s playing on MTV and as background music on the CW, and that’s the market that’s being hurt by OiNK and the like. It’s this new, emerging market that the RIAA is protecting—for its benefit, but also arguably for the benefit of these really good bands that might be able to make the big break.

I can see the future just being this big, inconsistent mess, much like what Tim Wu discusses in his Slate articles. Big Music lets trend-setting friend-to-peer communities and bloggers build up the hype for up-and-coming bands, basically doing PR for the first album or two, and then when the bands are ready to break out, they shut down those communities and then lock down on the profits. It seems to make sense. Spend no money for the first few years, and then blow it out—getting legal fees and copyright judgments in the meantime. Not bad, puppet-masters, not bad.

Now, we can talk about it: OiNK, the invite-only, free file-sharing community was raided by the police, and the owner was taken into custody. OiNK (once available at oink.cd)was known on the street for distributing a lot of not-yet-released and pre-release versions of albums. But OiNK was supposed to be a secret. (Some facts and rumors about the OiNK takedown.)

It’s interesting that they shot for this below-the-radar service, while the big ones still exist (like The Pirate Bay or Mininova). Maybe OiNK was never penetrated by companies like MediaDefender, and therefore wasn’t controllable or compromisable. Or maybe because OiNK was so good at grabbing those pre-releases. The tough thing is that whomever was behind this action doesn’t have to ‘fess up as to why they targeted OiNK—just that OiNK aided in copyright violations. The other tough thing—for OiNK—is that while he wasn’t making money explicitly for the service, he *did* accept donations, and no matter how minor those funds may have been, they could probably be easily connected with his service to make it for-profit.

And already people are looking back at even tighter friend-to-peer networks (or other darknets) like Soulseek and WASTE. The bump in users to the big guys, again, like The Pirate Bay, will probably barely be noticeable. People don’t want to share their super-secret goodies with the whole world; they want to do it with friends. So files bouncing from WASTE mini-network to WASTE mini-network will be better at insulating the actual initial seeder from discovery.

Regardless, at the end of the day, OiNK was a service that violated copyright—even though as some users will claim, it wasn’t *all* copyrightable, there was some openly free stuff there. Whether it was the proper strategic move to make is another question.

This might be a no-brainer, but since my last comparison of Facebook status and Twitter with .project and .plan, I’ve been trying to use both of the former more often because I think it actually *is* useful for other people to know what you’re up to.

But it’s not just for what class you’re in, emotional states, or latest trysts, but also as a passive way to implore for help, advice, or to hear from others on similar matters.

For example, let’s say that instead of Twittering “waiting for Jim to fall back in love with me” you Twitter “working on methods of contesting temporary restraining orders.” Then, any of your friends who have also contested TROs could contact you with their related experiences.

Or think of Facebook and Twitter as “away” messages when you can’t or don’t use IM. (”Oh, he’s working on TROs, so I better not bother him.”)

Especially if you’re dedicated to using Twitter you can then create a network of friends in your industry or academic field, and when you’re all Twittering about your work, it really does become a community of experts helping experts, and not just a fun distraction on the Internets.

The biggest problem I see so far is that it takes widespread adoption of a certain application. Right now, in my world circles, Facebook is probably the most adopted, followed by IM, then Twitter. If IM were allowed at more workplaces (which I think it should be since voice-mail is getting so passe, and I think voice-mail to text is so cool), then I would think IM would replace this idea, but until then, Twitter-ing your status works pretty well.

(Since I’m not doing any work, my current status is: “Paul is twittering: watching 28 Days later instead of studying, the former being more worthwhile.“)

(Update 10/24/07: Here’s a better status: “Paul is twittering: finding whether admin agencies use the mailbox rule or time of filing to toll appeals limitations periods - and rocking to the Black Keys!”)

Glaxosmith-Kline has filed a federal complaint in ED Virginia’s “rocket docket” seeking to enjoin the USPTO from implementing the new patent rules.  The new rules address continuing applications, requests for continued examination, and examination of claims in patent applications.  They amend 37 C.F.R. sec. 1.75, 1.78, and 1.114, and add 37 C.F.R. 1.267.  GSK alleges that the Rules were promulgated without proper legal authority, and are also “vague, arbitrary and capricious.”  Further, they “prevent GSK from fully prosecuting patent applications and obtaining patents on one or more of its inventions.” 

GSK alleges that Congress has not empowered the PTO to promulgate such regulations.  As a federal governmental agency, the PTO obtains its power soley from Congress, under 35 U.S.C. sec 2 (and Congress, in turn, derives its authority regarding patents from the U.S. Constitution art. 1 sec 8 cl 8.)  Congress has not yet granted the PTO to make these rules, so GSK says that the PTO engaged in ultra vires rulemaking.

Further, GSK alleges, the new rules regarding continuing applications, requests for continued examination, and examination of claims in patent applications are inconsistent with current patent law passed by Congress.  This action violates 35 U.S.C. sec. 2, which gives the PTO power to promulgate rules and establish regulations to govern conduct of proceedings in the PTO, as long as they are not inconsistent with the law.  The extent of the PTO’s authority to promulgate rules is currently being debated in Congress.

Lastly, GSK argues that the Rules “pose an unconstitutional arbitrary and capricious regulatory taking of GSK’s patent and patent application property rights.”

These claims are much more serious than the complaint already filed on this issue.  It will be interesting to watch this debate flush out in parallel to current Congressional action regarding patent law.