Today's article in the Financial Times titled Studios push anti-piracy rules on Apple reports that the studios are pushing for tighter copy-controls on Apple's iTunes movie distributions. They write:

After months of discussion, a sticking point has emerged over the studios' demand that Apple limit the number of devices that can use a film downloaded from iTunes.

And in the very next paragraph, FT.com states that the studios want to avoid piracy--demanding that Apple introduce a new distribution model for movies.

As a bit of background, currently, music downloaded from the iTunes store can be copied to at most five authorized computers (computers all purchasing music with the same iTunes account), synchronized with an unlimited number of iPods, shared via streaming with five other computers on the same network within 24 hours, and the same playlist of tracks can be burned seven times to a standard CD format and ripped to remove any of these copy restrictions. Video bought from the iTunes store, on the other hand, cannot be streamed to other computers, nor can it be burned to a standard physical media to be played in a DVD player or other digital device. The point is, even though music is fairly locked down via the iTunes service, control over video is already considerably more restrictive.

The Digital Freedom Campaign was launched today, and I was delighted to join my colleagues from the Consumer Electronics Association, the Media Access Project, Computer and Communications Industry Association and The Electronic Frontier Foundation at a press conference to talk about the campaign. My statement is here.

The purpose of the campaign is to build grassroots support for copyright laws that protect, rather than limit, creativity, innovation, free speech and competition. While attempts by the content industry to strengthen copyright further through increased penalties, government technology mandates and lawsuits is nothing new, the past several months have seen perhaps the greatest onslaught of legislation and litigation since Public Knowledge was founded five years ago. You can read about those initiatives here, here and here. These efforts have been particularly irksome because the industry won the Grokster case at the Supreme Court (and just recently at the district court), has been successful in its lawsuits against individuals, got Congress to pass the Family Entertainment and Copyright Act, which gives the industry special protection for "pre-release" works, and has entered into agreements with ISPs to pass on warning notices to individuals they believe to be engaged in illegal file sharing. So to paraphrase the immortal words of Howard Beale - We're as mad as hell and we are not going to take it any more.

I just returned from three days in the Bay area, and the highlight of my trip was getting a tour of, and giving a policy talk at, the Google campus in Mountain View. It was everything you may have heard about, and more - terrific free food, a top of the line health club, water treadmills, Segways, scooters, even washers and dryers, complete with free detergent and fabric softener. While these amenities were remarkable, I was more struck by the touches of whimsy - each conference room named after a foreign city (I had a meeting in the Bangui conference room - anyone know where that is?), massage chairs in the waiting rooms, and a "mouse" made from a basket, carefully placed in a stairwell to look like a rodent had taken up residence. Many thanks to Google Policy Analyst Rishi Jaitly for his hospitality.

But the policy talk, entitled "From Capitol Hill to Silicon Valley: Copyright, IP Law and Innovation was serious, as was the meeting I had beforehand with several of Google's top product lawyers (old friends Daphne Keller and Glenn Otis Brown), as well as its top copyright lawyer (and new friend), Alex MacGillivray. With its recent $1.65 billion purchase of You Tube, copyright law and the prospect of future litigation weighed heavily on the Googler's minds. And well it should, since Universal Music just announced that it was bringing lawsuits against two other video sharing sites, Grouper.com and Bolt.com. And even though You Tube has licensing agreements with several of the large music companies, those agreements don't cover Hollywood, or people like video journalist Robert Tur, who is claiming that You Tube "induces" copyright infringement. Moreover, to the extent that those licensing agreements include uses of copyrighted works that could be considered fair use, there is concern about setting a precedent that presumes that such uses need to be licensed. Another concern is that once the content companies get their feet in You Tube's door, that they will demand design control and other concessions regardless of the value they receive from the promotion that You Tube and its brethren provide.

In today's New York Times is a review[registration required] by David Pogue of the TEAC GF-350. It's a vinyl record player that lets you record from vinyl and tapes to CDs--essentially convert from a few generations old to last generation technology. Unlike computers and some other devices, the TEAC will only burn music to the special audio-only CDs which are supposed to prevent against serial copying, and for which the RIAA received a royalty under the Audio Home Recording Act--and I'd bet that the purchase of a TEAC device gives them a royalty as well.

From there, Pogue suggests that you rip the serial copy-protected CD you've created to your computer and convert the tracks so they'll play on your mp3 player. He used the example of recording his old college a cappella group record onto CD.

Policy wise, the article is interesting for a few reasons:

1. It illustrates how the record industry is paid for devices and media that consumers use to digitally record audio--whether or not the industry is entitled to that royalty (I don't imagine Pogue's a capella group had a contract).

2. Why didn't the TEAC device have an analog out? It may have worked nicely as a turn-table, CD player, and radio in a home entertainment system. Who knows, maybe it was a manufacturing / budget constraint (for a $400 turn-table, CD player combo?). Or did the manufacturer go out of its way to cripple its device to clamp-down on "piracy" for fear of liability?

3. Did David Pogue violate the DMCA by telling his readers a way around the serial copy-protected CD by using iTunes?

There's also a nice video version of the article by the author which can be found here.

The In the Know newsletter comes out today, and so does the podcast! Here are some of the details:

• Senate Committee Ties On Net Neutrality
• Gigi On Capitol Hill: Testifies on Analog Hole and Broadcast Flag
• Filmmakers Visit Hill for Orphan Works
• It's time for the IP (3) Awards

We just moved our podcast around, so here are some helpful links:

• The mp3 version is here

• The enhanced AAC version is here

• And the new In the Know Podcast RSS subscription feeds will be found here (please check back they're coming soon): mp3 RSS|enhanced AAC RSS.

At Tuesday's broadcast flag hearing, Mitch Bainwol of the RIAA declared that XM's new devices "will starve--literally starve--Creativity."

Who could be against creativity? Creativity is like a puppy: almost universally acknowledged to be a good thing, certainly not anything we'd want to see "starved--literally starved." I kept having a mental image of a puppy named Creativity, maybe a puppy like this:

Thanks Martin!

And then the representatives from the MPAA or the RIAA: "You see this puppy? Do you want this puppy to be destroyed/starved/ deincentivized?" Kind of like this famous magazine cover.

But Gary's right, there are other types of creativity that matter, creativity that isn't controlled by ten companies, creativity that is just as threatened by the legislative agenda of the content industries: the analog hole, the broadcast flag, fighting DMCA reform. And other endangered puppies, maybe a bucket of puppies, with names like Democratic Discourse, Home Taping, Parody, and Fair Use. We haven't always done a good job of describing what's at risk, so consider this a first step.

Check out these puppies (sorry for the gratuitous puppy linking), that would be threatened by the video broadcast flag and analog hole legislation, three sites that legally use excerpts of television broadcasts to offer commentary on politics and the media. While there's an exception for "news and public affairs programming whose primary economic value is timeliness," the networks get to decide what these programs are: an exception that swallows the exception. As you can see, the broadcast flag is non-partisan; these shows will be locked down whether you're a Republican or a Democrat.

• Crooks and Liars
• Hot Air
• PowerLine Video

And a bonus puppy, this from the House Commerce Committee itself, whose homepage currently features a legally excerpted video from ABC News, including comments by Chairman Barton!

Also, thanks to flickr and its members for the Creative Commons licensed pictures of puppies . . . and the hour of my life I will never get back.

NBC Nightly News ran a story last night about how NBC is learning to embrace YouTube.

NBC says that it first noticed YouTube when a pirated clip of Saturday Night Live's Lazy Sunday video appeared on YouTube's website. NBC didn't initially embrace the website, and ordered the video removed from the website (YouTube complied). But rather than continuing to fight it, NBC is learning to take advantage of it because "they didn't like the piracy, but they sure liked the buzz."

The television industry is beginning to recognize the internet's power to reach broad audiences and is learning to take advantage of the marketing potential. On Tuesday, NBC and YouTube announced a partnership. New mediums for content, like YouTube and Google Video, are new possibilities for enlarging audiences. Not only did the Lazy Sunday video get six million streams according to NBC, but run a search on YouTube for the video and you'll find lots of user generated videos based on the original, which have received hundreds of thousands of hits. NBC couldn't buy that kind of marketing for its programs, and content providers should be taking note. As we learned from Digital Media Conference earlier this week, the winners of the digital media game will be those who can give consumers what they want when they want it.

Last Friday, PK took a field trip out to the Digital Media Conference in McLean, Virginia, to catch up on the latest happenings in, um, Digital Media. The morning sessions opened with "Industry Roundtable: Perspectives from Leading Associations and Interest Groups," featuring representatives from the content industry (MPAA, RIAA, DiMA, ESA) and device manufacturers (CEA). As you can see, the panel was a little stacked. At past panels, moderator Gary Arlen (check out his account of the day) wore a referee's jersey to keep things under control, but this time opted for an equally effective sports-themed tie. Congratulations to CEA's Michael Petricone for his spirited defense of consumers' rights.

What was striking about the panel was not the content industry's legislative agenda (the usual: analog hole, broadcast flag, and opposing DMCA reform), but the disconnect from the rest of the conference. The room was mostly empty, while the room next door--a panel focusing on "the Battle for the Digital Consumer" --was packed. The consensus in that room, and really of the conference, was that the winners of the digital media game would be those who could give consumers what they wanted when they wanted it.

The question left unasked and unanswered by the content industry reps was the long term viability of a business that is openly antagonistic to the desires of its customers . . .

And yet, content matters! One of the recurring themes of Friday's conference was that the companies best positioned to take advantage of the new market were those who owned their own content. Why? Because then you don't need to deal with the licensing battles that hinder any innovation in content delivery. While the big industry associations are using litigation, legislation and even international treaties to lock down content, some people are getting out there, distributing their content, and making money.

People like the Discovery Channel. In the first keynote of the day, Dawn McCall of the Discovery Networks International described the over 100 unique outlets her company uses to get their content to consumers. A fleet of cable networks, but also podcasts, webcasts, mobile devices, iTunes downloads, HD, even tours of national parks on Google Earth. You name it, they do it. She credited her company's explosive growth to the decision to own their own content, and a deliberate effort to be platform neutral.

Changing the content to fit the platform, rather than forcing the platform to fit the content. Interesting idea, but one you won't hear much around Washington these days.

Gary Shapiro of the Consumer Electronics Association, at today's House Commerce hearing on the Audio and Video Broadcast Flags:

"We have to stop measuring creativity by the financial interests of ten companies."

Amen.

Today, the Senate Judiciary Committee held a hearing considering the "problem" of the analog hole. Public Knowledge President Gigi Sohn was the last witness, and the 3 Senators in attendance seemed to react well to her message and the concerns of our allies in the tech sector.

First, let's cover some technical and legal background. (Skip ahead if you just want the digs on the hearing. Also, here are Gigi's oral and written (pdf) testimony.)