Thursday, April 12, 2012

Facebook, Privacy, the EU, Oh My! (thanks, Vivian for the links)

Facebook Offers More Disclosure to Users

By KEVIN J. O’BRIEN (NY TIMES)

Published: April 12, 2012

Facebook, seeking to address concerns about the personal information it collects on its users, said Thursday that it would provide any user with more about the data it tracks and stores.

Times Topic:Facebook

In a posting on its privacy blog, Facebook said the expanded archive feature would be introduced gradually to its 845 million monthly active users. It goes beyond the first archive made available in 2010, which has been criticized as incomplete by privacy advocates and regulators in Europe.

The archive Facebook published two years ago gave users a copy of their photos, posts, messages, list of friends and chat conversations. The new version, Facebook said, includes previous user names, friend requests and the Internet protocol addresses of the computers that users have logged in from. More categories of information will be made available in the future, Facebook said.

Online social networks offer free services to users and make money primarily through advertising, which can often be directed more effectively using the information the network has collected on them.

Facebook, which is preparing for an initial public stock offering, most likely in May, has been trying to accommodate government officials in Europe, where privacy laws are more stringent than in the United States. .

Facebook’s data collection practices have tested the boundaries of Europe’s privacy laws. The social networking site, based in Menlo Park, Calif., is Europe’s leading online network, according to comScore, a research firm in Reston, Va.

Last December, the Irish Data Protection Commission reached an agreement with Facebook, which runs its international businesses from offices in Dublin, to provide more information to its users and amend its data protection practices. “We took up their recommendation to make more data available to Facebook users through this expanded functionality,” the company said in a statement.

Facebook agreed to make those changes by July. In Europe, 40,000 Facebook users have already requested a full copy of the data that the site has compiled on each of them, straining the company’s ability to respond. Under European privacy law, the company must comply with the requests within 40 days.

Max Schrems, the German law student who filed the complaint leading to the agreement with the Irish authorities, criticized Facebook’s latest offer as insufficient.

“We welcome that Facebook users are now getting more access to their data, but Facebook is still not in line with the European Data Protection Law,” said Mr. Schrems, a student at the University of Vienna. “With the changes, Facebook will only offer access to 39 data categories, while it is holding at least 84 such data categories about every user.”

In 2011, Mr. Schrems requested his own data from Facebook and received files with information in 57 categories. The disclosure, Mr. Schrems said, showed that Facebook was keeping information he had previously deleted from the Web site, and was also storing information on his whereabouts, gleaned from his computer’s I.P. address.

Facebook’s data collection practices are being scrutinized in Brussels as European Union policy makers deliberate on changes to the European Data Protection Directive, which was last revised in 1995. The commissioner responsible for the update, Viviane Reding, has cited Facebook’s data collection practices in pushing for a requirement that online businesses delete all information held on individuals at the user’s request.

Ulrich Börger, a privacy lawyer with Latham & Watkins in Hamburg, said he thought it was unlikely that the European Union would enact laws that would significantly restrict the use of customized advertising, which is at the core of the business model for Web sites like Facebook. It is more likely, Mr. Börger said, that lawmakers would require Facebook and other networking sites to revise their consent policies to make them more easy to understand. But it was unlikely that Facebook would be legally prevented from using information from individuals who sign up for the service.

“I don’t see any fundamental change,” Mr. Börger said. “It comes back to the question of consent. They cannot go so far as to prohibit things that people are willing to consent to. That would violate an individual’s freedom to receive services they want to receive.”

********

And this from the BBC regarding the reaction in Europe (also April 12, 2012):

Facebook criticised over data download tool

Facebook has updated a tool that lets users look at some of the data the social network holds on them.

The update gives people an "expanded archive" of their activity on Facebook letting them see friend requests and login locations.

Facebook said other categories of data would be added in the future.

Campaigners said the data shared did not go far enough and handed over only a "fraction" of the information European laws demand.

Raw access

Facebook's Download Your Information tool was first introduced in 2010 and gave people a digital copy of the photos, posts and messages they had shared on the social network.

Those who took the chance to get their archive got a compressed file full of data.

In a blogpost explaining the change, Facebook said the updated tool would be gradually rolled out to all users.

Campaigners said the change should have included much more information. The download tool supplied data in 22 categories, far fewer than the 84 demanded by European law, said Max Schrems, an Austrian law student who founded the Europe v Facebook pressure group.

He said updating the tool was an attempt to "fool" users as it did not give people access to the raw data they were entitled to.

Europe v Facebook had filed several complaints about Facebook's privacy policy, he said, but they would not have been able to do this if they had relied only on the processed data provided by the download tool.

Instead, Mr Schrems and other campaigners used an online form on Facebook to request the unprocessed data held on them. Facebook removed this form after 40,000 people used it to lodge requests to see their data.

Facebook has faced persistent criticism over what it does with the data people surrender about their lives and relationships.

In late 2011, the Irish data protection commissioner issued a report on Facebook's privacy policy and said it should give people better access to their data and do more to tell them what is done with it.

The commissioner said it planned to conduct a formal review of the progress Facebook has made towards complying with the recommendations in July 2012.

Wednesday, April 11, 2012

Aaaaaaaannd... We Did It!

Super Proud of DiMA, our fellow member companies, the NMPA and RIAA today.

(from billboard.biz today)

Copyright Royalty Board To Set Mechanical Royalty Rates For Digital Music Services

April 11, 2012 | By Ed Christman (@edchristman), New York

In a major settlement between the music industry trade associations for record labels, music publishers and digital music providers, the Copyright Royalty Board, is expected to maintain the mechanical rate structure set forth from prior proceedings concluded in 2008 while creating new rates and terms for five new digital music service categories.

The agreement, which must still be formally approved by the CRB, maintains a song rate of 9.1 cents for downloads, CDs and other physical formats, 24 cents for ringtones, and the same formulas, with limited changes, used to determine the mechanical rate for different kinds of subscription and free interactive-streaming services.

It also creates new rate formulas for five new digital business models:

- For the paid locker services like the one iTunes offers consumers, music publishers will get a mechanical rate of 12% of revenue or 20.65% of total content cost or 17 cents per subscriber, which ever is greater.

- For digital lockers that provide free cloud storage with a download purchase, music publishers will get 12% of revenue or 22% of the total cost of content, which ever is greater.

- For the third category, called a mixed bundle such as when your cell phone services subscription rate comes with a music service, music publishers get 11.35% of revenue or 21% of total content cost, whichever is greater.

- The fourth new category, called limited interactive service such as when a subscription service can offer limited amounts of music to, say, one genre or playlists that the user can access at a lower price, music publishers will get 10.5% of revenue or 21% of total cost or 18 cents per subscriber, whichever is greater.

- Finally, for the fifth category, called a music bundles such as when a CD album comes with a download, music publishers will get 11.35% of revenue or 21% of total content cost.

The use of a total content cost will allow music publishers to potentially partake in whatever upside occurs when music labels negotiate in a free market how much they charge to supply their music to digital music service providers, according to National Music Publishers Assn. president and CEO David Israelite.

"If they get a better deal, we get a better deal," Israelite says. That means if a license expires and a label negotiates a better rate, the publishing royalty can increase too. Also, if a major comes up with a creative deal that includes an equity stake in a digital music service provider or a guaranteed allotment of advertising, those items are assigned a value and included when figuring total content cost, which allows music publishers to participate in such deals.

"Digital Media Assn. executive Lee Knife said, "Today's agreement paves the way for our members to continue developing exciting new business models that satisfy consumers, create greater revenue opportunities for music creators and effectively fight piracy, the music industry's greatest threat."

Recording Industry Assn. of America chairman and CEO Cary Sherman said, "This is a historic agreement that reflects our mission to make it easier for digital music services to launch cutting-edge business models and streamline the licensing process. This is a major win for consumers, the music community, and entrepreneurs and investors in new music services."

DOJ, Antitrust & E-Books.... (thanks, Emily!) [From the WSK today, 4/11/12]

TECHNOLOGY

Updated April 11, 2012, 12:27 p.m. ET

U.S. Sues Apple, Publishers Over E-Book Pricing

By CHAD BRAY, BRENT KENDALL and JEFFREY A. TRACHTENBERG

The U.S. hit Apple Inc. AAPL -0.15%and five of the nation's largest publishers with an antitrust lawsuit, alleging they conspired to raise prices in the fast-growing e-book market.
Three of the publishers agreed to settle the suit, which could upend the model that has led the price of many best-selling e-books to rise to $12.99 or $14.99 from $9.99 several years ago.
"Defendants' ongoing conspiracy and agreement have caused e-book consumers to pay tens of millions of dollars more for e-books than they otherwise would have paid," the lawsuit said, describing CEO-only meetings of publishers at Manhattan restaurants at which the alleged conspiracy was hashed out.
The lawsuit, filed by the Justice Department in Manhattan federal court, alleges Apple and the publishers reached an agreement where retail price competition would cease, retail e-books prices would increase significantly and Apple would be guaranteed a 30% commission on each e-book sold.

The U.S. filed an antitrust lawsuit Wednesday against Apple Inc. and five of the nation's largest publishers, alleging they conspired to limit competition for the pricing of e-books. Ashby Jones joins Markets Hub with details. Photo: AP Photo/Mark Lennihan.

The three publishers that agreed to settle are Lagardere SCA's Hachette Book Group, CBS Corp.'s CBSA +0.93%Simon & Schuster Inc. and News Corp.'s NWSA +1.23%HarperCollins Publishers LLC. News Corp. also owns The Wall Street Journal.
Those three publishers agreed to terminate their agreements with Apple regarding e-books and refrain from limiting any retailer's ability to set e-book prices for two years. That could help Amazon.com Inc. AMZN +0.98%resume deep discounts on new e-books.
Also named in the suit are Pearson PSO +1.61%PLC's Penguin Group (USA) and Macmillan, a unit of Verlagsgruppe Georg von Holtzbrinck GmbH.
Simon & Schuster confirmed that it settled but declined further comment. Apple declined to comment. Macmillan denied any collusion. The other three publishers didn't immediately respond to requests for comment.

Court Documents

The U.S. filed an antitrust suit against Apple and some publishers over e-book pricing. See the court document.

View Document

[docid=120411160256-760665eab437497cb473d2281dff0ad5|file=ebooks04112012c]

Three of the publishers—Hachette, HarperCollins and Simon & Schuster—have agreed to a settlement. Here is that settlement.

View Document

[docid=120411161455-413f968a5c71466491205e6292975605|file=ebookssettle041112]

More photos and interactive graphics

Previously

E-Book Readers Face Sticker Shock Dec. 15, 2011
U.S. Warns Apple, Publishers March 9, 2012
Apple Holds Out as E-Book Pricing Settlement Nears April 5, 2012

Referring to the settlement and its e-reading devices, Amazon said, "This is a big win for Kindle owners, and we look forward to being allowed to lower prices on more Kindle books."
The agreement between Apple and the publishers allegedly occurred ahead of the introduction of the iPad in 2010, when Amazon.com had driven e-book pricing down to $9.99 for newly released and best-selling e-books, according to the lawsuit.
The conspiracy to limit competition, the lawsuit says, aimed to limit Amazon's ability to discount e-books.

Insight from CFO Journal

Sony Admits Big Profits Are Far Off With Write Down
Family Dollar Hires New CFO, Covets Old One
Best Buy's Interim CEO Brings CFO Chops

Read CFO Journal. »

When Apple started selling its iPad, the publishers shifted from a "wholesale" model, under which retailers set the price of books, to an "agency" model in which publishers set the retail price and retailers take a cut.
The lawsuit included a remark by the late Steve Jobs, head of Apple, describing his company's strategy for negotiating with the publishers: "We'll go to [an] agency model, where you set the price, and we get our 30%, and yes, the customer pays a little more, but that's what you want anyway."
The suit alleges that the publishers' chief executives met starting in September 2008 or earlier "in private dining rooms of upscale Manhattan restaurants" and "no legal counsel was present at any of these meetings."
It also describes how Apple executives worked with the publishers in late 2009 and early 2010, as the iPad launch approached, to fine-tune the new pricing model. In January 2010, each of the five publishers "entered into a functionally identical agency contract with Apple that would go into effect simultaneously in April 2010," the Justice Department said.
The government said publishers "regularly communicated" to "exchange sensitive information and assurances of solidarity." They "took steps to conceal their communications with one another, including instructions to 'double delete' e-mail and taking other measures to avoid leaving a paper trail," the government said.
John Sargent, chief executive of Macmillan, in a message sent Wednesday to authors, agents and illustrators, said Macmillan didn't collude with anyone. Reaching a settlement with the Department of Justice, he added, would be particularly difficult when "you know you have done no wrong."
Mr. Sargent, observing that publishers actually earn less money on each e-book sale under the agency model than the traditional wholesale model, described his decision to embrace agency pricing as "the loneliest" one he has ever made.
"The government's charge is that Macmillan's CEO colluded with other CEO's in changing to the agency model," he wrote. "I am Macmillan's CEO and I made the decision to move Macmillan to the agency model. After days of thought and worry, I made the decision on January 22nd, 2010 a little after 4:00 AM, on an exercise bike in my basement. It remains the loneliest decision I have ever made, and I see no reason to go back on it now."
He also sounded several other themes. The settlement proposed by the Department of Justice, he wrote, could have enabled Amazon to "recover the monopoly position it had been building" prior to the adoption of agency pricing. He also said that a settlement "would have a very negative and long term impact on those who sell books for a living, from the largest chain stores to the smallest independents."
A spokesman for Amazon declined to respond to Mr. Sargent's comment.
A spokesman for Bertelsmann AG's Random House Inc., which was the only major publisher not to initially agree to the agency pricing model and thus wasn't a defendant to the suit, declined comment on the suit or the settlements. Random House did adopt the agency pricing model last year.
—Thomas Catan and Jessica E. Vascellaro contributed to this article.

Monday, April 9, 2012

Thank you, Benjamin Z.

A VERY interesting response to Google's new privacy policies from France.

http://www.cnil.fr/fileadmin/documents/La_CNIL/actualite/questionnaire_to_Google-2012-03-16.pdf

From Benjamin:

It will download a 69 questions questionnaire the CNIL adressed to Google regarding their new privacy policies. The CNIL is the french governmental agency dedicated to control online privacy rules since 1978. It can give an idea to what extra information should we ask from a company like google in the goal of preserving our privacy rights. It can also give an insight of the european expectations in privacy law.

An Interesting Read If You Are Keen to Work at a Digital Media Start-Up/Company

Corner Office | Phil Libin

The Phones Are Out, but the Robot Is In

By ADAM BRYANT

Published: April 7, 2012

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This interview with Phil Libin, chief executive of Evernote, a provider of note-taking and archiving technology, based in Mountain View, Calif., was conducted and condensed by Adam Bryant.

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Earl Wilson/The New York Times

Phil Libin, chief executive of Evernote, a provider of note-taking and archiving technology says the company has an unusual culture.

Corner Office

Every Sunday, Adam Bryant talks with top executives about the challenges of leading and managing. In his new book, "The Corner Office" (Times Books), he analyzes the broader lessons that emerge from his interviews with more than 70 leaders. Excerpt »

Q. Do you remember the first time you were somebody’s boss?

A. I’m a programmer by training. I just worked as an engineer all through college and then after school. But then, at one of my earlier companies, there were three of us, all programmers. I was the weakest programmer of the three, so I kind of got pushed into doing all of the other stuff. It was kind of accidental almost. It was like, I’m the guy whose time was the least valuable.

Q. Did managing people come naturally to you?

A. To me, being a C.E.O., being a manager, was really a direct extension of being a programmer, which I think explains some of the things I’m good at and some of the things I’m bad at. When you’re programming, you have a very specific goal that you want to accomplish, and you do it by basically pulling together blocks of code. When I became a C.E.O., I was basically doing the same thing, except I was working with people who needed to accomplish some stuff, and it was still kind of very functional. That worked really well with the kind of people we had early on — high-energy, very technical, very goal-driven people. So I kind of thought, “Hey, I’m a natural. I’m a great C.E.O.” I didn’t have to do anything, and everything gets done, and products get released and revenues climb. I didn’t have my first experience of actually trying to manage people with conflicts or personality issues or any of the softer stuff until several years later. That was kind of a big shock.

Q. Tell me more about that.

A. My company was acquired by a much larger company, and that’s when I was really a manager for the first time. I had a department — the people who used to work for me in my previous role as C.E.O. — but now I had to represent their interests in the larger organization. I had other people reporting to me, and now there were politics, personalities, all this other stuff, and I hated it.

Q. Why?

A. I knew how to set a goal, and if I had like-minded people who wanted to accomplish the same goal, I was pretty good at directing them. But not everyone’s mission in life was to accomplish that particular goal. So how do I deal with these other issues? I didn’t have any of those skills, and I had no idea how hard that was. So that was a pretty rude awakening. I kind of went from being relatively successful as an engineer and relatively successful as a start-up C.E.O., and then to utter failure as a midlevel manager. I kind of vowed that I was going to try to not repeat that. Luckily, now we have about 160 people, so I’ve got people on my staff who are much better at managing people. The company doesn’t suffer quite so much just because I may be a little bit tone-deaf.

Q. Tell me about the culture of your company.

A. We have a flat and very open structure. Nobody has an office. In fact, there are no perks that are signs of seniority. Obviously, there are differences in compensation, but there are no status symbols. You certainly don’t get a better seat or any of that kind of stuff, because they’re just unnecessary. They create artificial barriers to communication. They create artificial things that people focus on rather than just getting their job accomplished. We try to have an organization that just helps you get your work done, and then it’s my job to eliminate all of the risks and all the distractions so you can just focus on achieving. That attracts people who are primarily motivated by how much they achieve.

Q. What else is unusual about your workplace?

A. We got rid of phones in the office. Just on a whim, I thought that at every company we start, and this is the third one, we’re going to eliminate one piece of unnecessary technology. So this time it was phones. We thought, why do you really need a phone? If you have a phone at your desk, it’s just sitting there and you’re kind of encouraging people to talk on it. Everyone’s got a cellphone, and the company pays for the plans. There are phones in the conference room. We’re not a sales organization, so we’re not making a lot of calls, either. If you’re at your desk, you should be working. And that’s actually worked really well. I don’t think anyone misses phones. Even though it’s one big room, it’s actually fairly quiet because no one is sitting there talking at their desk. The culture very much is that if you want to talk, you go 10 or 20 feet in some direction to a quiet area.

Q. But don’t people then just resort to e-mail?

A. One of the things I’ve tried to do is uproot any sort of e-mail culture at Evernote. We strongly discourage lengthy e-mail threads with everyone weighing in. It’s just not good for that. Plus, it’s dangerous, because it’s way too easy to misread the tone of something. If you want to talk to somebody and you’re a couple floors apart, I kind of want you to get up and go talk to them.

Q. So tell me more about your culture.

A. We recently implemented something called Evernote Officer Training. I got this idea from a friend who served on a Trident nuclear submarine. He said that in order to be an officer on one of these subs, you have to know how to do everyone else’s job. Those skills are repeatedly trained and taught. And I remember thinking, “That’s really cool.”

So we implemented officer training at Evernote. The program is voluntary. If you sign up, we will randomly assign you to any other meeting. So pretty much anytime I have a meeting with anyone, or anyone else has a meeting with anyone, very often there is somebody else in there from a totally different department who’s in officer training. They’re there to absorb what we’re talking about. They’re not just spectators. They ask questions; they talk. My assistant runs it, and she won’t schedule any individual for more than two extra meetings a week. We don’t want this consuming too much of anybody’s time.

Q. Tell me about some other things you do.

A. We recently changed our vacation policy to give people unlimited vacation, so they can take as much time as they want, as long as they get their job done. If you want to take time off, talk to your team, but we’re still measuring you on the same thing, which is, did you accomplish something great? Frankly, we want to treat employees like adults, and we don’t want being in the office to seem like a punishment. We always try to ask whether a particular policy exists because it’s a default piece of corporate stupidity that everyone expects you to have, or does it actually help you accomplish something? And very often you realize that you don’t really know why you’re doing it this way, so we just stop doing it.

Q. Is the unlimited vacation policy working?

A. So far. We had to modify it slightly because one of the first things I started worrying about is whether people would actually take less vacation. I don’t want people not to take any vacation because that’s just bad for them, and it’s bad for me. You’re not going to get a lot of work out of someone if they haven’t taken a vacation in a while. So we started rewarding people for taking at least a week at a time on a real trip by giving them $1,000 spending money. That seems to be going well.

Q. I can imagine.

A. Probably the thing that we do that people love the most, though, is housekeeping. If you work at Evernote, you get professional housecleaning twice a month.

Q. What gave you that idea?

A. We thought that we needed to get spouses and significant others on our side. I want the pressure from them to be, “You better not be thinking about leaving Evernote.” I don’t want the pressure to be, “Maybe you should think about going somewhere else?”

Q. What else do you do?

A. Let me tell you about our video wall. So our headquarters are in Mountain View, and we set up a studio in Austin, Tex. We very specifically wanted to avoid the feeling that if you’re not working at headquarters, you’re in a second-place office. So in two high-traffic areas in the Austin office and in Mountain View, we have this giant 70-inch TV with a high-end video camera on it, and it’s meant to be, basically, a window. So they’re always connected in real time. The idea is that if you can see somebody, they can see you, so you don’t have that feeling of surveillance. It’s really about connection. You can see who’s on the other side and talk to each other. But it’s not for meetings — this is really just to connect the spaces. And you can just chat with each other, and maybe that will trigger ideas.

Q. I’ll keep asking: What else?

A. We have an Anybots robot with telepresence. When I’m not at the office, I can log in through a browser and I drive it around. It balances on two wheels, and it’s six feet tall. I see through its eyes and ears, and it’s got a screen, so people can see me. And so you can have casual conversations at someone’s desk through the robot. It’s got a laser pointer, so you can shoot lasers, which is just good design. You shouldn’t build a robot without a laser.

Q. How do you hire?

A. The most important baseline skill for any position is communication. We want you to be able to explain what you mean; we want you to be articulate. That cuts out a lot of people, because a lot of people are probably pretty good technically, but if you don’t have excellent communication skills it’s going to be very frustrating for you and for other people. Other than that, then there’s just a core set of skills for the position.

We also want people who are reliable. It’s like, how often do you hear an excuse for something? They can be really great excuses, but if the last five times you were supposed to do something and you have a good reason for why you didn’t do it, then that starts to become troubling. We try to have the kind of a culture that doesn’t value excuses in the sense that when you’re supposed to accomplish something, and you’re at a high level, then your job is to accomplish it, in spite of difficulty. And you’re rewarded for dealing with that.

Thursday, April 5, 2012

Big Win For Content (thanks, Katharine)

Viacom wins second round of copyright battle against YouTube

Federal appeals court raises questions over whether YouTube execs knew about infringing material on the site, and sent the case back to a lower court for re-examination.

by Greg Sandoval April 5, 2012 9:03 AM PDT

File photo of Google Chairman Eric Schmidt, and Viacom CEO Philippe Dauman.

(Credit: Viacom and Greg Sandoval/CNET)

Viacom has won an appeal in its copyright lawsuit against Google's YouTube, according to court documents.
The U.S. Second Circuit Court of Appeals sent the case back to a lower court to determine whether YouTube purposely ignored the infringing material that was posted to the site.

The decision is a setback for technology companies. It negates an earlier decision that set a favorable precedent about responsibility for policing Web sites. But today's decision only requires YouTube to defend itself in a lower court against the charges that it had prior knowledge of copyright infringement on its site.
In 2007, Viacom accused YouTube, which at that point had recently been acquired by Google, of encouraging users to illegally upload copyrighted clips of movies and TV shows. YouTube prevailed nearly two years ago, when a district court judge ruled that YouTube was an Internet service provider that qualified for protection under the Digital Millennium Copyright Act's safe harbor.
The court found that YouTube was protected from liability for the copyright infringing acts committed by users because it quickly removed pirated videos once notified by copyright owners.
Viacom maintained that YouTube did not qualify for DMCA protection because e-mails and other documentation showed that YouTube managers were aware of the copyright infringement and were in possession of tools that could prevent flagged content from being reposted, but took no action.
"We are pleased that the U.S. Court of Appeals has vacated and remanded the District Court's ruling," Viacom said in a statement. "This balanced decision provides a thoughtful way to distinguish legitimate service providers from those that build their businesses on infringement.
"The court delivered a definitive, common sense message to YouTube," Viacom continued. "Intentionally ignoring theft is not protected by the law. We are confident we will prevail when the merits of our case are heard."
A YouTube spokesperson gave CNET this statement:

The Second Circuit has upheld the long-standing interpretation of the DMCA and rejected Viacom's reading of the law. All that is left of the Viacom lawsuit that began as a wholesale attack on YouTube is a dispute over a tiny percentage of videos long ago removed from YouTube. Nothing in this decision impacts the way YouTube is operating. YouTube will continue to be a vibrant forum for free expression around the world.

The court said that the lower court should find out whether YouTube exercised "willful blindness."
Any bitterness that the two sides may feel over this trial hasn't stopped them from doing business with each other. Yesterday, Viacom's Paramount Pictures agreed to give YouTube access to 500 movie titles to rent to YouTube and Google Play users.
Updated at 10:15 a.m. PT: Added YouTube statement

For those following the Grooveshark matter (and Digital Music News). Wow.

http://www.digitalmusicnews.com/permalink/2012/120405grooveshark

Grooveshark Intensifies It Efforts to Enforce Its Subpoena Against Digital Music News…

Thursday, April 05, 2012
by paul

Grooveshark and its parent company, Escape Media Group, are now exerting heavy pressure on Digital Music News to enforce a subpoena related to an alleged whistleblower. The company is now marshalling the resources of two prestigious law firms – Rosenberg & Giger in New York, and McPherson Rane LLP in Los Angeles – and filing a court petition for subpoena enforcement while scheduling a hearing in LA Superior Court on May 15th. This army of litigators is headed by Matthew Giger, with Anita Stephan, Pierre Pine, and Edwin McPherson heading the LA-based effort. McPherson is perhaps the most illustrious member of this group, thanks to a clientele that includes Lindsay Lohan.

Of course, a legal team this extensive (and expensive) means endless and redundant paperwork, lecturing 'nastygrams' and not-so-friendly phone calls. That's probably part of a well-worn intimidation tactic designed to bury 'opponents,' but often divorced from the actual merits of the case. We have a shoe-string budget for defending against this onslaught.

Regardless, we hope that we can convince the court on the merits, while upholding critical protections. Accordingly, Digital Music News has filed a Response to the Escape-Grooveshark Petition that outlines our positions on the matter.

Grooveshark's Petition for Subpoena Enforcement

Digital Music News' Filed Response

A major issue we're presenting to the Court involves two very different and contradictory arguments coming from Grooveshark ― one being told to a judge in New York, and another to the judge in Los Angeles. In New York, Escape is moving aggressively to dismiss litigation brought by Universal Music Group, Sony Music Entertainment, and Warner Music Group, based on the lack of evidentiary weight offered by an anonymous comment posted on Digital Music News (and the target of the subpoena). In New York, the Escape legal team calls the anonymous comment 'implausible on its face,' and lacking 'even the barest trace of reliability,' and asks that the New York court disregard it as evidence. Yet somehow those very strong New York arguments were omitted from a stack of paperwork presented by Escape to Los Angeles judge Richard A. Stone, who is being told that identifying information surrounding this anonymous commenter is important to the defense of the New York case.

Grooveshark's Motion to Dismiss (New York)

As a quick background, the anonymous commenter – in a story published by Digital Music News in October – talked about Grooveshark management's role in uploading unlicensed songs into the Grooveshark system. If true, that would constitute a serious violation of DMCA protections, and the anonymous comment has became part of a massive lawsuit brought by the major labels. The majors allege that this comment ― along with a mass of other more ordinary evidence ― seem to be pointing in the same direction. The anonymous comment carries no identifying information whatsoever, so we – just like the Escape legal team arguing in New York – are having trouble determining why it is important evidence in the New York case.
Which means the New York Court might agree with Escape, and determine that the anonymous comment is not substantial enough to be entered into evidence. Yet somehow, judge Stone hasn't yet been briefed by the Escape-Grooveshark legal team on the lack of weight of the anonymous comments it argues in New York, at least judging from the deluge of paperwork we've seen. All of which raises the obvious question of whether this extremely time-consuming and expensive subpoena exercise makes any sense, or is merely wasting the finite resources of the court and Digital Music News. And, more importantly, potentially trampling on First Amendment, journalist Shield Law, and related privacy concerns, chilling the exercise of free speech.
There are other issues that we have presented to judge Stone. Digital Music News has repeatedly stated that we have no further information about this anonymous commenter, and put that in writing. Yet in private written correspondence, attorney Giger has flatly accused Digital Music News of lying, while lecturing us with completely misguided and uninformed information related to database architecture. It makes this whole exercise seem vindictive, both against Digital Music News and the anonymous commenter. It seems like it would be extremely damaging to Grooveshark's case in New York if it was discovered that the anonymous commenter is actually a Grooveshark employee. But the discovery would also seem to put the whistleblowing commenter at serious risk.
There are other reasons why we question the real motives for this subpoena attempt, and wonder whether vindictiveness is involved. For example, top Grooveshark executive Paul Geller publicly told the PHO list that he suspects a 'nefarious' relationship between Digital Music New and Universal Music Group, and pointed to that as a major reason for the subpoena action. We're not sure that this allegation stands the legal litmus test for a subpoena, nor do we think it's a good idea to tamper with important First Amendment and Shield Law protections for such a frivolous and misguided motivation.
And, to potentially sympathetic organizations: over the past few weeks, Digital Music News has been approached by a few organizations that might help our defense. We are a very small company and need the help. We are actively soliciting amici curiae and even pro bono litigation assistance in this matter. Please contact me personally (paulr@digitalmusicnews.com; (310) 928-1498) to discuss.

Monday, April 2, 2012

Privacy backlash over Girls Around Me mobile app [Thanks, Erin!]

http://www.bbc.co.uk/news/technology-17582975
2 April 2012 Last updated at 18:49

Privacy backlash over Girls Around Me mobile app

Screenshot of girls on Girls Around Me app

The app fuses together data from Foursquare and Facebook to offer locations and details

An app that allowed users to find nearby women who had "checked in" on a social network has been withdrawn by its developer after complaints.

Russian developer i-Free removed its Girls Around Me app which used publicly available data from Foursquare.

Foursquare, a location-based social network, has already revoked the app's access to its data.

A company representative for i-Free said the reaction to the app was a "serious misunderstanding".

In a statement given via email to the Wall Street Journal, the company said: "We believe it is unethical to pick a scapegoat to talk about the privacy concerns.

"We see this wave of negative as a serious misunderstanding of the apps' goals, purpose, abilities and restrictions.

"Girls Around Me does not provide any data that is unavailable to user when he uses his or her social network account, nor does it reveal any data that users did not share with others."
'Wake-up call'
The company added that it had removed the app, which has been downloaded over 70,000 times, from the iTunes app store due to a recurring fault.

The app is powered by pulling data from Foursquare, which people use to "check in" to locations such as a shop or a bar. In the US, where the app is most popular, it is common for businesses to offer special deals to those who check in on the site.

In addition to the location data, the app used associated Facebook information to display images of nearby users - allowing people with the Girls Around Me app to view profiles in a map format.

Depending on a user's privacy settings, other information such as relationship status and photographs can be seen.

Popular Apple blog Cult of Mac described the app a "wake-up call about privacy".

Blogger John Brownlee wrote: "Girls Around Me isn't an app you should use to pick up girls, or guys for that matter.

"This is an app you should download to teach the people you care about that privacy issues are real, that social networks like Facebook and Foursquare expose you and the ones you love, and that if you do not know exactly how much you are sharing."

The developer has said it will develop the app further to make sure only check-ins at public venues are displayed to users. It is also working on an Android version of its app.

However, neither versions will currently function while Foursquare prevents i-Free from using its data.

Thursday, March 29, 2012

Thoughts? [NY Times Op-Ed - thanks, Katharine!]

Op-Ed Contributor

When Stealing Isn’t Stealing

By STUART P. GREEN

Published: March 28, 2012

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THE Justice Department is building its case against Megaupload, the hugely popular file-sharing site that was indicted earlier this year on multiple counts of copyright infringement and related crimes. The company’s servers have been shut down, its assets seized and top employees arrested. And, as is usual in such cases, prosecutors and their allies in the music and movie industries have sought to invoke the language of “theft” and “stealing” to frame the prosecutions and, presumably, obtain the moral high ground.

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Mikel Jaso

Whatever wrongs Megaupload has committed, though, it’s doubtful that theft is among them.

From its earliest days, the crime of theft has been understood to involve the misappropriation of things real and tangible. For Caveman Bob to “steal” from Caveman Joe meant that Bob had taken something of value from Joe — say, his favorite club — and that Joe, crucially, no longer had it. Everyone recognized, at least intuitively, that theft constituted what can loosely be defined as a zero-sum game: what Bob gained, Joe lost.

When Industrial Age Bob and Joe started inventing less tangible things, like electricity, stocks, bonds and licenses, however, things got more complicated. What Bob took, Joe, in some sense, still had. So the law adjusted in ad hoc and at times inconsistent ways. Specialized doctrines were developed to cover the misappropriation of services (like a ride on a train), semi-tangibles (like the gas for streetlights) and true intangibles (like business goodwill).

In the middle of the 20th century, criminal law reformers were sufficiently annoyed by all of this specialization and ad hoc-ness that they decided to do something about it.

In 1962, the prestigious American Law Institute issued the Model Penal Code, resulting in the confused state of theft law we’re still dealing with today.

In a radical departure from prior law, the code defined “property” to refer to “anything of value.” Henceforth, it would no longer matter whether the property misappropriated was tangible or intangible, real or personal, a good or a service. All of these things were now to be treated uniformly.

Before long, the code would inform the criminal law that virtually every law student in the country was learning. And when these new lawyers went to work on Capitol Hill, at the Justice Department and elsewhere, they had that approach to theft in mind.

Then technology caught up.

With intangible assets like information, patents and copyrighted material playing an increasingly important role in the economy, lawyers and lobbyists for the movie and music industries, and their allies in Congress and at the Justice Department, sought to push the concept of theft beyond the basic principle of zero sum-ness. Earlier this year, for example, they proposed two major pieces of legislation premised on the notion that illegal downloading is stealing: the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA) and the Stop Online Piracy Act (SOPA).

The same rhetorical strategy was used with only slightly more success by the movie industry in its memorably irritating advertising campaign designed to persuade (particularly) young people that illegal downloading is stealing. Appearing before the program content on countless DVDs, the Motion Picture Association of America’s much-parodied ad featured a pounding soundtrack and superficially logical reasoning:

You wouldn’t steal a car.

You wouldn’t steal a handbag.

You wouldn’t steal a mobile phone.

You wouldn’t steal a DVD.

Downloading pirated films is stealing.

Stealing is against the law.

Piracy: It’s a crime.

The problem is that most people simply don’t buy the claim that illegally downloading a song or video from the Internet really is like stealing a car. According to a range of empirical studies, including one conducted by me and my social psychologist collaborator, Matthew Kugler, lay observers draw a sharp moral distinction between file sharing and genuine theft, even when the value of the property is the same.

If Cyber Bob illegally downloads Digital Joe’s song from the Internet, it’s crucial to recognize that, in most cases, Joe hasn’t lost anything. Yes, one might try to argue that people who use intellectual property without paying for it steal the money they would have owed had they bought it lawfully. But there are two basic problems with this contention. First, we ordinarily can’t know whether the downloader would have paid the purchase price had he not misappropriated the property. Second, the argument assumes the conclusion that is being argued for — that it is theft.

So what are the lessons in all this? For starters, we should stop trying to shoehorn the 21st-century problem of illegal downloading into a moral and legal regime that was developed with a pre- or mid-20th-century economy in mind. Second, we should recognize that the criminal law is least effective — and least legitimate — when it is at odds with widely held moral intuitions.

Illegal downloading is, of course, a real problem. People who work hard to produce creative works are entitled to enjoy legal protection to reap the benefits of their labors. And if others want to enjoy those creative works, it’s reasonable to make them pay for the privilege. But framing illegal downloading as a form of stealing doesn’t, and probably never will, work. We would do better to consider a range of legal concepts that fit the problem more appropriately: concepts like unauthorized use, trespass, conversion and misappropriation.

This is not merely a question of nomenclature. The label we apply to criminal acts matters crucially in terms of how we conceive of and stigmatize them. What we choose to call a given type of crime ultimately determines how it’s formulated and classified and, perhaps most important, how it will be punished. Treating different forms of property deprivation as different crimes may seem untidy, but that is the nature of criminal law.

Stuart P. Green is a professor at Rutgers Law School in Newark and author of the forthcoming “13 Ways to Steal a Bicycle: Theft Law in the Information Age.”

Tuesday, March 27, 2012

From Tariqa - Great find and thinking :)

I was reading through the current iTunes Terms of Service because I was curious about they were handling the issues surrounding the new Match service. I thought the section relating to their collection of data from users' media libraries and the privacy policy covering that were interesting:

"When you use iTunes Match, Genius will begin associating information about the media in your iTunes library with your Account; the association with your Account will continue for a period of time after your subscription ends. Apple will otherwise use this information as described in the Privacy Section of this Agreement. You will not be able to disable Genius while using iTunes Match, so if you prefer that we do not collect and use information from your iTunes library in this manner, you should not use iTunes Match.

You hereby agree to use iTunes Match only for lawfully acquired content. Any use for illegitimate content infringes the rights of others and may subject you to civil and criminal penalties, including possible monetary damages, for copyright infringement."

[emphasis added]

From the Privacy section just below that:

"When you opt in to the Genius feature, Apple will, from time to time, automatically collect information that can be used to identify media in your iTunes library on this computer, such as your play history and playlists. This includes media purchased through iTunes and media obtained from other sources. This information will be stored anonymously and will not be associated with your name or Account. When you use the Genius feature, Apple will use this information and the contents of your iTunes library, as well as other information, to give personalized recommendations to you."

[emphasis added]

So to use their cloud locker service you have to agree to leave Genius on and let them collect the meta-data from your library, which isn't terribly surprising. But it seems disingenuous to say information collected by Genius will be stored anonymously because in order to make genius playlists and media buying suggestions to you they have to associate that information with your account some how. Since dropping DRM on music sold through iTunes, Apple embeds watermarks in each music file associating it with the user who owns the account used to purchase it. Because of that, people (bad, bad people) who have received mix CD's from friends which include songs bought by those friends through iTunes, and who use Genius and/or Match, may be exposing themselves or their friends to risk of litigation. I realize the recording industry has backed off of such lawsuits, and that unlike file-sharing sites, no one in this example has posted a music file for downloading by the general public. Further I don't think Apple would consider any such litigations to be in its best interests. But on the other hand, while it was difficult for the RIAA to pin infringing activity to a specific person (not just an IP address) , here the link should be very easy to prove.

I certainly don't condone the flaunting of copyright law, but I at the same time I don't think the general public is aware that some of the activities they take for granted are exposing them to the risk of litigation. Anyways, thought I'd bring it to your attention for the class blog.

Best,

Tariqa

p.s. Here's a link to the full ToS: http://www.apple.com/legal/itunes/us/terms.html

Monday, March 26, 2012

Timely (from Techcrunch)

FTC Worried About Big Online Platforms, Only Sort Of Means Facebook and Google

Anthony Ha

posted 5 hours ago

0 Comments

The Federal Trade Commission just released a new report laying out its current thinking on Internet privacy. In some cases, the commission recommends new legislation, while in others it just want to hold more workshops.
The FTC previously released a “privacy framework” in December 2010. The framework outlined three principles that the commission wants companies to follow, including “privacy by design” (which means thinking about privacy at every stage of product development), simplified consumer choice, and greater transparency. It made perhaps its biggest splash by endorsing a “Do Not Track” mechanism in Web browsers. The FTC didn’t invent the idea, but DNT has gained more momentum since it made the endorsement.
In the new report (view or download the PDF here), the FTC includes five main action items:

Do Not Track — The report notes that “significant progress” has been made in making Do Not Track a reality. “However, the work is not done.” The FTC says it will work with organizations including browser vendors, the Digital Advertising Alliance, and The World Wide Web Consortium “to complete implementation of an easy-to use, persistent, and effective” system.
Mobile — The FTC wants mobile companies to provide “short, meaningful disclosures”, and it will host a workshop on May 30 in the hopes of that it “will spur further industry self-regulation.”
Data Brokers — The FTC supports legislation that would give consumers access to the information that data brokers hold about them. It also calls for those brokers to “explore creating a centralized website” showing who is collecting what data.
Large Platform Providers — The FTC report says that as Internet Service Providers, operating systems, Web browsers, and social media services try to “comprehensively track consumers’ online activities,” they raise “heightened privacy concerns,” and the commission plans to hold a workshop later this year to look at the issue. For now, it seems like the commission is least concerned about the final category. The report says that even though “companies such as Google and
Facebook are expanding their reach rapidly, they currently are not so widespread that they could track a consumer’s every movement across the Internet,” so they don’t raise “the same level of privacy concerns.”
Promoting Enforceable Self-Regulatory Codes — The FTC says it will participate in the Department of Commerce’s efforts to build sector-specific codes of conduct, and that if those codes are developed, the commission will “view adherence to such codes favorably in connection with its law enforcement work.”