BC Law IPTF Blog

Great post from marathonpacks (via fluxblog) on the demise of OiNK:

Yet what these people don’t understand, or at least won’t admit to understanding publicly, is that OiNK was a symbolic subcultural mirror of exactly everything they profess to hate about their vision of mainstream culture. You can’t deny that OiNK was itself a culture: it was private and elite, it had clearly elaborated and lengthy rules for membership that included an annoyingly audiophilic standard for musical “quality” and sanctions for not tithing as much as you took. It had forums where people discussed meta-level issues about its functionality. OiNK clearly had its own set of ideologies, and they were far from liberatory. While it’s only a symbolic gesture, I’m glad to see OiNK disappear for the same reasons I’m so glad to not be part of a music “scene” anymore; I don’t miss blue-blooded conservativism masquerading as originality and protest.

Also, included for free, support of the much-needed criticism of “Sasha Frere-Jones’ New Yorker article discussing race and indie rock.”

Fittingly, the most popular forms of “indie” music today—formerly accessible on OiNK by sorting in order of popularity—reflect its generic status as not one decided by instrumentation or miscegenation as much as social position. And, sad as it might be, that will probably (hopefully) be OiNK’s legacy 20 years from now: a cultural snapshot of music fandom and/of 00s indie rock as the express domain of the parochial and privileged.

Maybe places like this should take notice of the dangerousness of closed, elite communities.

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.

Hackers recently intercepted e-mails and phone conversations from MediaDefender, a company that monitors torrent tracking sites and seeds fake content to discourage illegal downloading. They purportedly did this by tracking down a MediaDefender plant in a torrent forum by the user’s IP, obtained his password for the forum, and then tried that password on his Gmail account… And voila! They had access to his Gmail, to which he had forwarded his work e-mail.

(I wonder if betraying his password would violate the torrent forum’s TOS—and whether the user might have a claim against them for that. For example, he accepted the TOS which formed a contract between him and the forum owners, and if they promise to keep his password secure, then they breached the contract… Then, damages?)

The leaked e-mails and phone conversation (the latter, a separate hack) revealed which sites MediaDefender “policed” and some conversations they had with the NY Attorney General’s Office about aiding the AGO with a child porn investigation. (Yes, more child porn on this blog.) Ironically, in the phone call with the AGO, MediaDefender stressed how secure their services were given the highly sensitive nature of the AGO investigation.

On top of it all, there’s evidence that MediaDefender created a fake torrent site, a “honeypot,” named MiiVi to lure and trap torrent users (from an ArsTechnica post):

A web site called MiiVi allegedly offered full-length motion pictures for download and offered to install special client software on the user’s computer to help speed up the downloads. However, the software did a little more than that: it also reportedly performed searches of the user’s computer for other illegal software and reported its findings back to MediaDefender. Acting on a tip from The Pirate Bay, the online publication ZeroPaid began an “investigation” (a followup to Torrent Freak’s article) and found that MediaDefender didn’t make much of an effort to hide who was behind MiiVi. The whois records for MiiVi were clearly registered to MediaDefender with the company’s address in California and administrative contact information within the company.

In reaction to this shit-storm, MediaDefender has sent cease and desists to at least MegaNova and isoHunt, to which they’ve responded derisively. From the ArsTechnica article:

[T]he isoHunt administrator says that the he will comply with the request if it is properly submitted. “Despite us being located in Canada, if you do actually figure out how to compose a valid DMCA notice, we will honor it,” he concedes, “just as soon as we’re done laughing at you.”  

“Dearest little asstunnels, Let me start off by thanking you for your pitiful attempt to have your e-mails removed from the entire internet,” Meganova’s response says. “In case you haven’t noticed, this site is located in Europe (I hope you can point it out on a map) where your stupid copyright claims have no base. But fair is fair you guys did suffer over the past week so here’s bit of advice to you guys: F*** you! F*** you again! F*** you again and again and again!”

Furthermore, MediaDefender has written to sites that have published the list of torrent sites they’ve been targeting, bullying them into removing the list.

Gotta love the drama. And asstunnels.

Today, my buddy Adam and I presented at a roundtable at MiT5 about Adam’s project, Edtags.org. Here’s the abstract from the presentation:

Identifying Online Experts, Paul Ham, Adam Seldow
Our research involves building a community of experts at the Harvard Graduate School of Education around a socio-semantic networking web site, Edtags.org. Through our work with the web-site, we have come across a recent set of questions regarding the make-up of the community and culture. How do we ensure that populations of participants are “experts” in a field? Is it a matter of “numbers” or must there be a screening process to verify the users for participation? Should we screen the content for our specific field, and if so how? What is the critical mass of endorsed sites on a socio-semantic network that changes it from a place where educators save bookmarks to a place where educators save bookmarks and discover new ones? Lastly, how can search engines best distinguish “credible” sites from “socio-spites” (socio-semantic networking spam sites)?

We presented alongside sam smiley, a professor at Lesley College, and ended up having a great discussion about ownership, copyright, content management, as well as identifying experts in an online community site. We also got to show off the latest version of Edtags.org, which just keeps on getting better and better.

Our biggest questions were regarding how to identify experts: are they self-identified (I’m a professor or through self-tagging), community-identified (through votes or friends), or moderated (by Adam)? Though we didn’t end up with concrete answers, we did receive a lot of feedback on how to think about expertise on-line and safe ways of developing community.

One thing that I’m definitely going to keep track of is avoiding “forcing” people to have friends. You can suggest friends and explain why: these are users who are similar to you based upon their tags or their bookmarks; these are bookmarks recommended to you based upon your bookmarks; etc. But don’t force people into communities.

Also, it sounds like right now that self-selection and organic-selection of experts seems to work and won’t inhibit our user growth.

Adam also announced our new project, through Seth, to open source and distribute the Edtags code hopefully by the end of the summer.

The shiznit’s going down on Todd Goldman and his company, David and Goliath. Essentially, Goldman decided to hire some artists to rip-off Threadless t-shirt designs.

For those who don’t know about Threadless (or D&G), it’s a community-based web site where t-shirt designers submit their work and people comment on them and then buy the final designs. They encourage participation by offering deals like if you upload pictures of you wearing their t-shirts, then you’ll get a discount. Great idea, very successful, and, best of all great, t-shirts. (I own a… Bunch.)

Since this has blown up on the Internet, Goldman’s lawyer has been e-mailing bloggers who are discussing this issue–”We have acquired articles posted on your website which contain defaming, derogatory and malicious statements about Mr. Goldman“–asking them to remove posts from their blogs. But now it looks like his lawyer is apologizing at least to the artists for the rip-offs.

Here are some of the rip-offs, posted on Penny Arcade:

The New York Times is running an article on the man and the company behind sudoku. Interestingly, the brain power behind sudoku, Mr. Kaji, wasn’t able to make much money because he didn’t trademark the name “sudoku,” but because the IP wasn’t protected he feels that popularity of the game exploded:

While no one knows how much revenue is generated by the global sudoku business, most agree it has easily topped $250 million over the last two years from an estimated 80 million devotees. The New York Times syndicate provides a variety of logic puzzles, including sudoku, kakuro and others, for newspapers and Web sites around the world.

Nikoli received only a sliver of that money. Mr. Kaji says his private company, with just 20 employees, had annual sales of about $4 million.

Sudoku’s popularity in the United States caught Mr. Kaji by such surprise that he did not try to get the trademark there until it was too late. As a result, Nikoli receives no royalties from sudoku-related sales overseas by other publishers.

In hindsight, though, he now thinks that oversight was a brilliant mistake. The fact that no one controlled sudoku’s intellectual property rights let the game’s popularity grow unfettered, Mr. Kaji says. Nikoli does not plan to trademark other new games, either, in hopes this will also help them take off.

“This openness is more in keeping with Nikoli’s open culture,” said Mr. Kaji, who sat on a sofa in his Tokyo office among pillows adorned with printed faces of racehorses. “We’re prolific because we do it for the love of games, not for the money.”

While this might just be a good marketing face to show, it’s core aligns with the philosophy of open source, copyleft, GNU, etc. If you don’t control the IP, a product has a chance to explode. If you do it for the love of the product, then maybe your reward will be greater in the end.

Here’s the relevant purpose regarding copyright from our publication agreement:

1. I, ___________________, hereby represent and affirm that I am, or am authorized to act on behalf of, the copyright holder[s] of the Article, that I submit the Article for publication to the Forum, and grant the Forum a perpetual, world-wide, sublicensable, irrevocable, non-exclusive license to publish the Article electronically on the Forum, to reprint the Article or portions thereof in any medium now in existence or later invented, to cause the Article to be republished on electronic legal research services, including but not limited to LEXIS and Westlaw, to excerpt from the Article, to distribute, reproduce, transmit, and display the Article, to add hypertext links, graphics, images, and formatting to the Article, and to use the author’s name and likeness in promoting the Forum.

2. The Licensor retains the right to register, in the Licensor’s name, the Licensor’s copyright in the Article with the appropriate governmental office.

3. The Forum agrees to include in its publication of the Article, a notice of the Licensor’s copyright ownership. Notice will be in the form, “© YYYY [Licensor’s name]. Published with permission of the copyright holder.” Upon the Licensor’s request said notice will also include a restriction on use by guests to the Forum.

4. This agreement does not require that the Forum be the first publisher of the Article.

5. If, after the Forum’s publication of the Article, the Licensor subsequently causes the Article to be published, the Licensor agrees where reasonable to include or have included in such publication an acknowledgment in the following format: “Reprinted from the Intellectual Property and Technology Forum at Boston College Law School, YYYY B.C. Intell. Prop. & Tech. F. MMDDXX.” and, if published in electronic format, a hypertext link to the Forum. (YYYY B.C. Intell. Prop. & Tech. F. MMDDXX. is the chronological citation assigned the article during publication on the Forum.)

I wonder if we should just instead consider incorporating a Creative Commons license–or option for other licensing if appropriate–within our license? Here’s Lawrence Lessig’s quick take on the whole copyright licensing of law journal articles.