Monday, December 26, 2005

RIAA -- The Non-Ethics of Thuggery

Consider this recent article (excerpted from AP):

'Internet-illiterate parent' fights downloading lawsuit
WHITE PLAINS, New York (AP) -- It was Easter Sunday, and Patricia Santangelo was in church with her kids when she says the music recording industry peeked into her computer and decided to take her to court.

Santangelo says she has never downloaded a single song on her computer, but the industry didn't see it that way. The woman from Wappingers Falls is among the more than 16,000 people who have been sued for allegedly pirating music through file-sharing computer networks.

"I assumed that when I explained to them who I was and that I wasn't a computer downloader, it would just go away," she said in an interview. "I didn't really understand what it all meant. But they just kept insisting on a financial settlement."

The industry is demanding thousands of dollars to settle the case, but Santangelo, unlike the 3,700 defendants who have already settled, says she will stand on principle and fight the lawsuit.

"It's a moral issue," she said. "I can't sign something that says I agree to stop doing something I never did."

If the downloading was done on her computer, Santangelo thinks it may have been the work of a young friend of her children. Santangelo, 43, has been described by a federal judge as "an Internet-illiterate parent, who does not know Kazaa from kazoo, and who can barely retrieve her e-mail."

The drain on her resources to fight the case -- she's divorced, has five children aged 7 to 19 and works as a property manager for a real estate company -- forced her this month to drop her lawyer and begin representing herself.

"There was just no way I could continue on with a lawyer," she said. "I'm out $24,000 and we haven't even gone to trial."

So on Thursday she sat alone at the defense table before U.S. Magistrate Judge Mark Fox in White Plains, looking a little nervous and replying simply, "Yes, sir" and "No, sir" to his questions about scheduling and evidence exchange.

She did not look like someone who would have downloaded songs like Incubus' "Nowhere Fast," Godsmack's "Whatever" and Third Eye Blind's "Semi-Charmed Life," all of which were allegedly found on her computer.


Jenni Engebretsen, a spokeswoman for the Recording Industry Association of America, the coalition of music companies that is pressing the lawsuits, would not comment specifically on Santangelo's case. "Our goal with all these anti-piracy efforts is to protect the ability of the recording industry to invest in new bands and new music and give legal online services a chance to flourish," she said. "The illegal downloading of music is just as wrong as shoplifting from a local record store."

Jon Newton, founder of an Internet site critical of the record companies, said by e-mail that with all the settlements, "The impression created is all these people have been successfully prosecuted for some as-yet undefined 'crime'. And yet not one of them has so far appeared in a court or before a judge. ... She's doing it alone. She's a courageous woman to be taking on the multibillion-dollar music industry."

Santangelo said her biggest issue is with Kazaa for allowing children to download music without parental permission. "I should have gotten at least an e-mail or something notifying me," she said. Telephone and e-mail messages seeking comment from the Australia-based owner of Kazaa, Sharman Networks Ltd., were not returned.


Her travail started when the record companies used an investigator to go online and search for copyrighted recordings being made available by individuals. The investigator allegedly found hundreds on her computer on April 11, 2004. Months later, there was a phone call from the industry's "settlement center," demanding about $7,500 "to keep me from being named in a lawsuit," Santangelo said.

Judge Colleen McMahon ruled that the record companies had enough of a case to go forward. She said the issue was whether "an Internet-illiterate parent" could be held liable for her children's downloads.


What is the point of going after this woman? SHE did not download the songs. She has already disciplined her children. She ahs already served as a poster child .. so what is the point?

Mere possession of copies of songs is not a crime. The fact the someone (and RIAA knows not who) posted the links to the song collection is not a crime. The downloading might be a crime but there is ZERO EVIDENCE that this lady downloaded anything. Or that her children did. Just that someone did.

So if a storekeeper at the end of a busy post Xmas day finds a counterfeit $50 in his cash register should we prosecute him for passing counterfeit bills? Did he accept one .. it seems so. But where is the evidence that he would knowingly pass one?

The principle is the same. Or if third graders xerox a $5 bill and substitute their own pictures in the middle for Lincoln do we prosecute the parent who gave the child the $5?

RIAA is doing this because they can. It is not just. It reeks of thuggery. And such actions undermine the very ethics of the "illegal downloading" cases they wish to believe have a high moral standard. Yes, thievery is wrong and illegal downloading is theft. But chase the downloaders and their fences, not their mothers.

See http://recordingindustryvspeople.blogspot.com/ for more.

(Full Disclosure: Ray Beckerman -- Santangelo's former attorney and current legal advisor -- was my attorney when I lived in NYC.)

Thursday, December 15, 2005

Google Book Search -- Fair Use It Is Not

Google's "Print" (Book Search) was the cover story in the December 2 issue of the Chronicle of Higher Education's Review. The article, like many others, has somehow managed to avoid the flaw in Google's legal reasoning.

Google's scanning/indexing project creates a "derivative" work. To create the index Google must first create an electronic copy of the original. It is the process of creating this electronic copy (i.e. scanning and OCR'ing) which is forbidden without the publisher's permission. ONLY the copyright holder has the right to CREATE a derivative work.

Google has somehow asserted that transforming a work into another medium, NOT altering any of the text, preserving the transformed copy in a lasting manner, and doing so for a commercial purpose is fair use. But, what they have done is create a derivative work -- and there is NO fair use for the creation of a derivative work. Sure they can make a fair use argument about the index -- but the dispute is not the index: it is the process of creating the index.

Harper Collins has the right idea. They will control the process of creating the index and then will give the index to whomever wants to use it. The process of creating a derivative work stays with the copyright holder.

Of course, if Google were to play ball with the publishers then much of this would be unnecessary. Most books in the last ten years were prepared with digital files and it is much easier to prepare an index from the digital file. But that would mean Google would have to give up having its own derivative work.

Why does Google want a derivative work of its own? Because copyright law asserts that if a derivative work is created with permission or under license -- OWNERSHIP of the DERIVATIVE work is vested with its creator -- i.e. Google.

Anyone want to bet that once Google has ownership rights it will vigorously protect them?

Now if Google were to give up ALL commercial rights to the project, give it and the necessary funding to a consortia of university libraries (such as the ones they are "working with") and then find a way to restrict the use of the index to educational ones (users must log in through a library, text is displayed for only limited times and is deliberately fuzzy except say for a floating box which allows you to read paragraphs, and the ability to print and read multiple pages is severely restricted), well that might be fair use .... but that is not the Google project.


See: Andrew Raff's roundup for more

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Friday, December 09, 2005

France, Riots, Hungary, Gypsies: Commonalities

I gave my talk on the French Riots yesterday. In an effort to make it more relevant to the CEU audience I shifted the talk to include Hungary's Gypsy (Roma) problem. The French riots were, of course, just an extension of the "normal" French thing to "be on strike." What was different this time was the look of the "strikers" (i.e. their skin color and religion) which caused the media to refer to this set of events as a riot and not as a strike.

The historic French response to racism and a lack of economic integration was to deny that the issues even existed. As a result the problems simmered and then exploded. With the Roma, Hungary faces similar issues. More than 700,000 Roma face discrimination, illiteracy, poor housing, poor health care, and massive unemployment. Moreover the Roma will exceed 20% of the population in 2030. Denial is not a long-term viable option. So what are the alternatives?


From a complex systems perspective the French Riots are an example of a situation where "weak signals" (items that can be observed but which are ignored by the powers that be) matter. In fact, many artists made use of these weak signals even as they were being ignored by the political authorities. These weak signals included:

  • Clustering of the second/third immigrant population
  • Lack of employment
  • Corrosive welfare system
  • Lack of assimilation
  • Strong social networks
  • New communication methods
  • Strong role models in "strikes"


These signals too repeat in Hungary with the Roma as real problems which must be addressed. It will not be enough to merely change perceptions, nor will "top down" actions (i.e. central government policy) suffice. Hungary needs to supplement its existing Roma program by having intensive language and literacy training focused on community leaders and prospective teachers where the stated aim is to provide both positive local role models and a means of inter linking the Roma social network with the rest of the country.

I believe intensive efforts should be made to find several hundred Roma computer and bio-tech students, who could also be seen as "successes" and form the nucleus of an outreach program where the computer students' success inspires others to follow. Added programs are needed to train nurse practitioners and teachers and encourage them to return to their villages. Perhaps my most radical idea lies in noted the huge symbolic and cultural value in the commitment of high status people to small step items such as having a student live with them.

Many of the attendees agreed when joining in to the discussion which followed. The audience kept asking what could be done in light of systemic and society wide prejudice and discrimination. As more and more examples were offered it was clear that problems of "separateness" and endemic in many societies. There are of course parallels in other countries such as both "Gang Members" in large US cities and illegal Latin immigrant communities in the US as well as first generation black immigrants in France. With all these communities: sometimes it's the small steps which matter most.



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Wednesday, December 07, 2005

European Political Correctness

I landed in Hungary for my monthly lecture and began by having an hour long open chat on Budapest's most popular chat forum. Given that I speak only a few words of Hungarian, this was an adventure for all concerned.

What intrigued me was the dedication with which the chatters pursued topics which seemed outside of their realm of concern. Why do Hungarians care about drilling in the Alaskan wilderness? Why do they care if we in the US eat genetically modified foods? Why does it offend them that we are not "nice" as we go about fighting the war on terror?

I worry when people express greater concerns for "ideas" than for realities. We are not being "just" to the terrorists they claim -- never mind the innocents who were just slaughtered by the same man they now demand "justice" for.

Thus "global warming" is more important than health care. Preserving dignity more important than providing a decent education.

I just do not get it.

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Tuesday, November 29, 2005

The Riots in France -- Economics and Racism

The Fall 2005 riots in France were described by many a French politician and media outlet as the work of non-French "scum" out to cause trouble. Just today the Prime Minister tightened immigration to "control" the situation.

A complex systems view of the situation suggests the reverse is true: the riots were a very French means for a segment of French society to express need for a social correction in a proper French way. Indeed the parallels between the riots in the banlieue and the multitude of truck, rail, service, etc workers strikes willingly endured by French society are many. What was different was the look of the rioters - not their language (actually better than most strikers), their education (ditto), or satisfaction with their living conditions (ditto again).

What the riots exposed were two dangerous underbellies in both France and the rest of Europe - racism and a lack of economic integration. The historic French response was to deny that the issues even existed. As a result the problems simmered and then exploded.

Europe and Hungary face similar issues. Denial is not a long-term viable option. So what are the alternatives?

For my next provocative talk at the CEU Business School I will discuss what France did NOT do and what Europe CAN do.

Look here for more.



Interesting Commentaries can be found at economy-stupid

or "In the American model, then, you work more hours and use the money you make to pay for the things you can’t do because you’re working, and this creates a demand for service jobs that wouldn’t otherwise exist. In Europe, those jobs don’t exist in anything like the same numbers; employment in services in Europe is fifteen per cent below what it is in the U.S. Service jobs are precisely the jobs that young people and women (two categories of Europeans who are severely underemployed) find it easiest to get, the jobs that immigrants here thrive on but that are often not available to immigrants in France. There are many explanations for the estimated forty-per-cent unemployment rate in the banlieues that have been the site of recent riots, but part of the problem is that voluntary leisure for some Europeans has helped lead to involuntary leisure for others. The less work that gets done, the less work there is to do. Helping some people get off the labor treadmill can keep many people from ever getting on the treadmill at all." From James Surowiecki

"Blaming Le Corbusier for the banlieue riots is like blaming the inventor of the automobile for the SUV. Not only do the banlieues--which were built without his input--look nothing like what he intended, but those "machines for living" he did construct are today considered some of the finest, most sought-after addresses in France, precisely because they have maintained his ideas about modern living. Ultimately, the fatal flaw lies not in the architecture but the system that operates within it. In other words, the riots in the banlieues don't condemn Le Corbusier; they condemn the governments that failed to follow his vision....True, the Unité d'Habitation looks, at first glance, like your average high-rise housing project. But unfortunately for the residents of the banlieues and Cabrini-Green, the differences are in the details--and they're crucial differences. The public housing authorities who copied Le Corbusier's work in the late 1950s and early '60s saw a model for cheap, high-density housing. They tore down vast swaths of urban and (in Europe) suburban neighborhoods and threw up massive, poorly built, and banally designed projects separated from the rest of the city. They rejected Le Corbusier's insistence on mixed-use development, so that residents became isolated from their jobs and social lives as well. And rather than use the buildings' densities to improve the efficiency of public services, housing authorities in Europe and North America used their anonymity and physical isolation to ignore the needs of their residents--especially when, by the late '60s, the welfare state model began to implode." From TNR

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Friday, November 25, 2005

Thanksgiving, Ethics and Donald Trump

It is Thanksgiving and in theory a time for reflection and giving thanks. But, this is 2005 and we get two hours of Donald Trump.

In the second hour of the Apprentice we are treated to a moral lesson. Take advantage of your opponents, ignore your likelihood of repeated interactions with them, lie to vendors, and go on to prosper.

One of Donald's "teams" (one has to use the word loosely -- at this stage of the Apprentice the team is more a marriage of convenience by two sworn enemies) discovers a key supplier to the other team. Armed with this knowledge they swoop in, lie about their identity, and procure all of a vital supply.

The Donald's reaction "I think it is great."

Ah yes in a winner-take-all world the correct moral lesson on Thanksgiving day is not "remember how one plays is as important as winning -- especially in a networked world with repeated interactions," but rather "lie, cheat, steal -- winning is not everything it is the only thing."

Thus the very idea that the Indians helped the Pilgrims -- well... how stupid of the Indians. Thanksgiving according to the Donald logic is a celebration of the lambs being set up to be slaughtered.

Compare and contrast this with the "it does not need to be this way" commentary on Trump's own blog in a post entitled "Corporate Corruption: If You Have to Lie, Cheat, and Steal, You're Just Not Doing it Right"

I find all this rather repugnant but reflective of the society in which we live.

And people buy apartments from this man .....

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Tuesday, November 22, 2005

Why Do We Allow Prescription Drug Advertisements?

Taking a break from life in paradise (Naples of course) I flew up to Boston to spend Thanksgiving with the parents and siblings. When with my family I cannot but notice the ever present televisions (something I rarely see except right before bed at home -- though I do enjoy Law & Order and CSI). On this trip North what really has struck me is the rather ubiquitous advertising for prescription drugs.

For the life of me I cannot come up with any rational for why the government should allow this type of advertising. The cost of the ads must be enormous and they essentially promote the consumption of what by law is a restricted good. Further while the ads may heighten the public's awareness of a particular drug they do little to raise the public's understanding of the medical conditions the drugs (in theory at least) help to treat nor do they promote better health.

From a society point of view I am sure the money can be much better spent. But, of course, unless these ads were outlawed the competitive pressures faced by the drug companies means that they will continue. It would seem to be suicidal for a drug firm to voluntarily withhold advertising --especially if there existed a competing drug or if the firm had a belief that the ads were effective. This is a case where a bit more regulation (no ads aimed at the end users and not to be placed in media with a "general" audience) would benefit everyone. (I hold to this despite my formally Liberal tendencies.)

The question is how can this be accomplished.

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