Does more broadband mean more piracy?

In the $787-billion economic stimulus package enacted in February, Congress told the Federal Communications Commission to create a plan for extending broadband service to all Americans and increasing broadband speeds. It's an apple-pie, chicken-in-every-pot goal -- at least until people see the price tag. Nevertheless, there are plenty of disagreements over the details of the plan. One is a battle between copyright holders and consumer advocates over what to do about all the content that broadband users download or stream illegally. The former want Internet service providers to use technology to filter out unauthorized content flowing over their networks; the latter argue that filters won't work as advertised and will inflict an unacceptable amount of collateral damage on lawful Internet uses. I sympathize with the copyright holders' concerns about rampant unauthorized copying, but I'm not persuaded that filtering is the solution -- or that this proceeding is the place to have that debate.

Gigi Sohn, president of Public Knowledge, laid out the case against filters ...

Seeing how they run from the Pirate Bay

Just how big is the Pirate Bay among illegal downloaders? A new report by DtecNet, a Beverly Hills-based firm that tracks online piracy, found that transfers via the Bit Torrent protocol -- the most popular file-sharing application -- fell nearly 80% after TPB's Swedish Internet service provider cut off its bandwidth under pressure from the courts there.

Interestingly, other file-sharing applications didn't gain much traffic in the wake of TPB's cutoff, the report said. Instead, users migrated quickly to other BitTorrent "tracker" sites. Four alternative trackers -- OpenBitTorrent, Denis Stalker, tracker.publicbt.com and pow7.com -- "now comprise nearly 70 percent of all BitTorrent traffic," the report states. It adds that the migration was aided by the Pirate Bay, which altered its software to track files through OpenBitTorrent.

The report's bottom line is gloomy for those who believe file-sharing is killing the entertainment industry:

Though such concentration of traffic would appear to present yet another enforcement opportunity, similar to the Pirate Bay shutdown, it will be more difficult as BitTorrent technologists continue to adapt. Torrent sites now point to multiple trackers, so if one is disconnected or overwhelmed by traffic, pirates can still find the files they seek without stopping to find another tracker.

Meanwhile, TPB continues to jump from Internet provider to Internet provider as more courts try (with no lasting success) to keep it offline. And this week, a Dutch court ordered the company's founders and former spokesman Peter Sunde to remove links to content from the Netherlands, an order that Sunde says they can't comply with because they have no such control.

-- Jon Healey

Healey writes editorials for The Times' Opinion Manufacturing Division. Follow him on Twitter: @jcahealey

Netgear offers a networked hard drive for the masses, with a caveat

The tech industry is gradually persuading Americans to set up home networks, but it's had a tougher time selling consumers on the idea of storing all their data on a single device within their homes. The appeal of "network-attached storage" boxes and "home media servers" has largely been confined to the earliest of early adopters, even as the software to centralize and back up data has become increasingly user friendly. Today, Netgear makes a new bid to sell NAS to the masses, offering the $229 Stora. Its features and price are impressive, but I'm not sure Netgear has come up with a compelling new argument for consumers to go this route. That's because Hollywood isn't ready to play along.

The idea behind a NAS is that it makes all of your digital photos, music and documents available to any device in the home that's capable of displaying them. The emergence of networked TV sets and Blu-ray players means that a NAS can serve content into your home entertainment center, not just the computers scattered around your home. Granted, putting all of those files in one place could have disastrous consequences in the event of a disc failure, but it also makes it easier to back up all that data.

The Stora comes with a 1 terabyte drive ...

After 'Obama Joker' debacle, Flickr changes takedown policy

Flickr came out looking like the bad guy when it removed an image of President Obama portrayed as the Joker from "The Dark Knight." Onlookers accused Flickr of having a "political agenda" and being a "bully."

For the most part, Flickr has stuck to a retort along the lines of: Sorry, kids, but that's the way the law works.

But the Yahoo-owned photo-sharing site has since retreated, at least in one respect. Flickr revised its takedown policy Tuesday to be more clear when something has been removed as a result of a copyright-infringement claim.

One of the site's 38 million users suggested in the support forums that instead of completely removing the page in question as it had been doing, Flickr should delete just the image, leaving the comments and other relevant information, such as when the offending image was uploaded and how many hits it had gotten.

That's just what Flickr says it is now doing. As of Tuesday at 3:30 p.m., takedown requests filed under the Digital Millennium Copyright Act, or DMCA, will result in the image being replaced with one that reads, "This image has been removed due to a claim of copyright infringement."

Yahoo's legal team routinely puts the images back up after it receives a complete counterclaim by the original poster -- "complete," meaning it has all the boxes filled in and appears legitimate. Firas Alkhateeb's "Obama Joker" picture has not been reinstated, but that's because he hasn't filed a DMCA counterclaim.

One potential problem with this process is that it could easily turn into a merry-go-round of filling out forms in order to have images someone doesn't like removed without any actual claim to the copyright.

"You can both love and hate the DMCA," said Heather Champ, Flickr's director of community. "It's not perfect," but, "it's sort of the process that's been handed down to us from the government."

Those rules apply to other sites as well. YouTube, which is owned by Google, has developed a technology called ContentID to help in identifying actual copyright holders, which is heavily used by ...

Film Fresh to offer Hollywood movies in DivX

Online movie retailer Film Fresh announced today the availability of movies from four Hollywood studios in the DivX format, marking the latest step forward for the downloadable movie business. DivX had previously announced licensing agreements with Sony Pictures, Warner Bros., Paramount and Lionsgate; FilmFresh, which had already been offering some independent and foreign titles as downloadable DivX files, becomes the first U.S. retailer to take advantage of DivX's new relationship with Hollywood.

The main shortcoming for DivX is that DVD players and other devices require special software to decode and decrypt the format. But DivX compatibility has spread rapidly through the consumer electronics industry, most recently among TV makers and mobile phone manufacturers. Its main advantage over the formats used by other downloadable film outlets (e.g., Amazon and Apple) is that its domain-based DRM makes it far simpler for consumers to watch protected DivX movies away from their computers. DivX files can be stored on portable hard drives, USB drives and memory cards, enabling them to be moved easily and cheaply from screen to screen (assuming the device they plug into is DivX compatible). And any computer with a DVD recorder can burn a protected DivX download onto a standard disc. By contrast, creating a DVD with the CSS DRM that Hollywood studios favor requires a special burner and customized discs.

Rick Bolton, chief executive of Film Fresh, said his site would have about 600 Hollywood titles today, consisting of a mix of new and old releases. The addition of the major Hollywood studios signals a transformation of the online retailer...

Flickr says 'Obama Joker' image removal complied with takedown request

The now-infamous "Obama Joker" picture. Credit: Firas Alkhateeb

After a Chicago student gained national fame for editing a picture of President Obama in the image of the Joker villain from "The Dark Knight" and posting it to Flickr, some of the focus, especially among the tech community, quickly shifted to Flickr for removing the image.

On a site forum, Flickr, a Yahoo property, says it isn't banning accounts for posting the altered version of a Time magazine cover.

However, the company did receive a notice of infringement under the Digital Millennium Copyright Act, or DMCA, which sparked the removal, wrote Heather Champ, Flickr's director of community.

When asked who filed the request, Champ wrote in a follow-up e-mail, "We aren’t able to give that information out." Even the artist, Firas Alkhateeb, is left guessing -- though, he assumes Time was behind the notice.

"Under the DMCA, an individual may choose to file a counterclaim," Champ wrote in the posting. "Whether you love or hate the DMCA, that is a whole 'nother conversation (and one that really should include a glass or two of some frosty beverage)."

The Times noted in its profile of Alkhateeb that his picture disappeared from the site shortly after we had found it and that Flickr had sent him an e-mail about the removal, citing copyright concerns. The potential of copyright lawsuits from DC Comics or Time magazine became Alkhateeb's primary concern.

In that same story, a representative for the Electronic Frontier Foundation, a nonprofit organization that defends digital rights, said Alkhateeb has a legitimate fair-use argument for the image. Alkhateeb says he's been in touch with the EFF and plans to file a counterclaim.

"More than anything, it's a free-speech issue," Alkhateeb said on the phone today. "I really don't think it should have been taken down in the first place."

Many commentators online agreed and wondered aloud about Yahoo's ulterior motive.

"I don't know how this crazy game of telephone got started," Champ wrote. "I'm not sure how complying with the law has led to the idea that we (the Flickr team) have a particular political agenda."

[Updated at 2:55 p.m.: Added comments from Firas Alkhateeb.]

-- Mark Milian

Follow my commentary on technology and social media on Twitter @markmilian.

Now it's Kaleidescape's turn to cry [UPDATED]

In back-to-back rulings this week, a federal judge in San Francisco and a California appeals court in San Jose have blocked or threatened two products that let movie buffs shift their collections from plastic discs to hard drives. The MPAA hailed the rulings against RealNetworks' RealDVD software and Kaleidescape's home movie servers as victories for the rule of law, but what was really at stake was the studios' influence over how their products are consumed. By defeating Real and Kaleidescape in court, the studios and the DVD Copy Control Assn. (the inter-industry group that sued Kaleidescape) have made it harder for companies to develop new ways for people to watch Hollywood fare at home. And in doing so, Hollywood is attacking the perceived value of its products and cutting off potential outlets for growth.

The concurring opinion by Judge P.J. Rushing in the Kaleidescape case outlined the pointlessness of the DVD CCA's insistence on enforcing the letter, rather than the spirit, of its contract with the company.

Another DVD copying program bites the (courtroom) dust

U.S. District Judge Marilyn Hall Patel handed another important legal victory to the entertainment industry today, issuing a pretrial injunction that bars RealNetworks from manufacturing or selling its RealDVD disc-copying program on the grounds that it violates federal and state laws. (You can download the decision here.) Patel -- the jurist who made the initial ruling against the Napster music-sharing networkin 2000 -- held that Real's license from the DVD Copy Control Assn. to make DVD-playing software did not authorize it to create copies that removed the discs' restrictions on playback and copying. She also ruled that Real violated its contract with the DVD CCA, and that it had bargained in bad faith. In short, she rejected virtually every aspect of Real's defense.

The injunction, if it isn't overturned on appeal, also makes it all but impossible for Real to proceed with plans for a home video jukebox that can copy and store people's DVD collections onto a hard drive. Real had hoped to develop a mass-market version of Kaleidescape's high-end movie storage and playback system. The DVD CCA had sued Kaleidescape for breach of contract, only to lose in state Superior Courttwo years ago. But the major Hollywood studios sued Real for allegedly violating not only the DVD CCA contract, but also the anti-circumvention provisions of the 1998 Digital Millennium Copyright Act.

Patel's holding on the DMCA claim...

DivX lands two more Hollywood studios

Continuing its slow march to acceptance in Hollywood, DivX Inc. has persuaded two more studios -- Paramount and Lionsgate -- to use its compression and antipiracy technologies on the movies they make available for downloading. The deals announced this morning aren't exclusive, so the studios will continue to support other companies' codecs and DRMs as well. DivX has two other nonexclusive deals with major Hollywood studios -- it revealed alliances with Sony Pictures in January 2008 and Warner Bros. in October. At its current pace, it should have another deal or two to announce in June 2010.

I'm not criticizing DivX. The studios are the ones moving at a snail's pace. They should have embraced DivX's technology years ago, as some independent film outlets did.

Joel Tenenbaum joins the I-Owe-the-RIAA-My-Firstborn club

My vacation ended last week as a federal jury was ordering a Boston University grad-school student to pay the major record labels $675,000 for illegally downloading and sharing 30 songs that he could have purchased for less than the price of a textbook. (OK, OK, less than half the price of a textbook.) Ars Technica offered a good post last week on the judge's decision to bar the student, Joel Tenenbaum, from raising a fair-use defense. Given Tenenbaum's admission on the stand that he had, in fact, downloaded and shared the songs at issue (because "art is meant to be shared," he says on his blog), his attorney was left imploring the jury to "send a message" to the copyright holders by awarding them 99 cents per song -- less than the statutory minimum of $750 per infringement.

Unfortunately for Tenenbaum, the messages appears to be the same one sent by jurors in the two trials of Jammie Thomas-Rasset. By tuning Tenenbaum up for $22,500 per song -- not the $150,000 maximum by any stretch, but still a sizable figure -- they expressed their sharp disapproval of people who willfully break the law. Illegal downloading is a petty crime, and the major record companies are highly unsympathetic victims. Yet jurors in all three cases not only refused to nullify the law, they chose to apply bankrupting penalties.

Tenenbaum and his defense team from Harvard Law School are expected to appeal, challenging both the fair-use ruling (which was right in line with several other courts' holdings, starting with the 9th Circuit's first Napster decision) and the statutory penalties. The jurors' actions may not sway the higher courts, but they suggest that cases like Tenenbaum's and Thomas-Rasset's aren't the best vehicles for challenging copyright law. I think the statutory penalties are far too high, too, but the most compelling bits of evidence on that point are the anecdotes about defendants who paid several thousand dollars to settle dubious claims by the RIAA (e.g., a lawsuit against a parent of a middle-school student who used Kazaa without the parent's knowledge) because it would be costlier to fight the labels in court. Congress, not the courts, is the right place to rectify this imbalance, and its track record suggests that Mickey Mouse will enter the public domain before lawmakers reduce the statutory penalties for infringement.

Photo credit: Bizuayehu Tesfaye / Associated Press

-- Jon Healey

Healey writes editorials for The Times' Opinion Manufacturing Division.