Informationoverlord

The wrappers came off Viacom’s and YouTube’s motions for summary judgment in their copyright infringement case. The motions made for interesting reading as both sides choose to selectively target the other in their arguments.

Viacom

Viacom told the court that it is only interested in infringement pre-May 2008 (the point at which YouTube deployed digital fingerprinting and filtered for Viacom, when the parties signed a content deal). Viacom is therefore saying that since they signed their deal with YouTube they are happy with YouTube’s current practices, as regards infringing copyright material, and therefore don’t believe it currently induces infringement.

Viacom’s argument is that it is clear that the YouTube founders: Chad Hurley, Steve Chen and Jawed Karim, made a deliberate decision in 2005 to build a business based on piracy. They cite emails exchanges between the founders admitting early on the site is full of copyrighted material but that they needed to keep it up on the site to build traffic. They pointed in particular to exchanges between Hurley, still YouTube’s CEO, and Karim. During discovered Hurley informed the prosecution that he had lost his entire email repository. When then presented with copies of those emails retrieved from Karim, which showed all three were aware that 80% of their hosted content was infringing copyrighted material and that they wanted to “concentrate all our efforts in building up our numbers as aggressively as we can through whatever tactics however evil”, Viacom claims Hurley developed “serial amnesia” about any of those conversations.

Even more damning a memorandum personally distributed to YouTube’s entire board of directors by Karim just 6 months before the sale to Google stated: ” As of today episodes and clips of the following well-known shows can still be found: Family Guy, South Park, MTV Cribs, Daily Show, Reno 91 1, Dave Chapelle. This content is an easy target for critics who claim that copyrighted content is entirely responsible for YouTube’s popularity. Although YouTube is not legally required to monitor content (as we have explained in the press) and complies with DMCA takedown requests, we would benefit from preemptivelv removing content that is blatantly illegal and likely to attract criticism. ”

Viacom then turns to Google – who it commends for running a totally legal rival video hosting service, Google Video, before its purchase of YouTube for $1.8 billion in October 2006. It points to internal Google documents where Google identified YouTube as “a rogue enabler of content theft”; “business model is completely sustained by pirated content”, and “it’s a video Grokster”.

It seems Hurley was not the only person to have difficulty finding and remembering what happened in the early days. When asked to produce any relevant documents including emails that dealt with the acquisition of YouTube, Google CEO Eric Scmidt managed to find just 19. He explained this by stating it had “been my practice for 30 years to not retain emails unless asked specifically” – this from a company that launched Gmail in 2004 so people would never have to delete an email again. Viacom also point to the testimony of Larry Page who apparently could not even remember whether he was in favour of Google buying YouTube or not.

Next Viacom point to the fact that YouTube had the ability to deploy fingerprinting and filtering technology – they has a licence for Audible Magic from early 2006 – but either choose not to at all, or only agreed to do so with media organisation who agreed content licences with them. Viacom claims YouTube withheld applying these technologies to their content until May 2008 when the parties signed a content licencing agreement.

It continues to say that YouTube continued to be aware that much of the content on the site was infringing and yet took no action to do anything about it. They argue they could quite easily have removed obviously infringing material.

When it comes to the law, Viacom argues that as in Grokster, YouTube is guilty of inducement and is not entitled to any of the affirmative defences, available under s512(C) of the Digital Millenium Copyright Act (DMCA), to protect it from copyright infringement liability. In particular, it states that service providers will not be liable “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” This protection is available only if the service provider satisfies a number of statutory requirements. For example, the service provider must not have actual knowledge that the material or an activity using the material on the relevant system is infringing, must not receive a direct financial benefit from infringing activity, and must expeditiously remove or disable access to material if it is notified that the material is infringing or is the subject of infringing activity.

Viacom contended that YouTube does not qualify for § 512(c) immunity because YouTube had actual knowledge and was aware of infringing activity on their site and did not act to stop it; it had the ability to control infringing activety and remove any content – as they do frequently with adult material - but chose not to; turned a blind eye to acts of infringement for the sake of profit from web traffic and ad revenues; and that it did not store video clips “at the direction of a user.”, as it actively creates “Flash-formatted” copies of video files uploaded by users and allows streaming of those clips, making it a direct infringer of copyright because its copyright infringement is not from web hosting but from broadcasting videos.
This final line of argument seems a little odd, as YouTube still creates version of uploaded conetnt in this way post May 2008 where Viacom apparently has no issues with the site.

Viacom also point to the fact that YouTube has signed licencing deals to distribute their service and the infringing content over third party platforms – such as the iPhone – an action that it clearly not storage, and so is not protected by DCMA.

YouTube

Google/YouTube, perhaps unsurprisingly, choose to ignore the sites beginnings and the initial days of the Google take over and instead concentrate on what the site has become. It argues that whilst it can’t control what its user upload it has taken numerous steps to keep illegal material off the site: it’s T&Cs; copyright tips; 10 minute limit; registered a DCMA agent; removes infringing materials as result of DCMA request; terminates and blocks accounts of users suspects of being repeat infringers; and employs team to help copyright owners remove unauthorised material.

YouTube states the problem with Viacom’s case is that the actual actions of Viacom undermine its own case. Firstly, it points to Viacom’s own failed attempt to buy YouTube in 2006. If Viacom saw it as a video Grokster, why did they want to buy it, and why were they already negotiating a possible content licencing agreement before Google acquired the site? It also states that it was Viacom, not YouTube that scuppered a deal between to two in 2007 by requesting more money than any other content partner– although YouTube are quiet on the allegation of withholding fingerprint technology for only those who signed content licencing deals.

It states that in February 2007 the two companies agreed that Viacom would present a super takedown notice. YouTube says that within 24 hours ‘virtually all’ the videos had been removed. The following month Viacom launch this legal action, demanding one billion dollars.

YouTube produced its own email evidence that from early 2006 onward Viacom employees and its agent BayTSP were actively uploading clips to the site, infact they even had a documented policy to ensure that some content stayed up on the site. In November 2006, just after Google took charge 316 infringing South Park clips were found on the site, and yet Viacom only requested the removal of one.

YouTube accuses Viacom of using stealth marketing to get fake accounts set up to promote uploaded viral videos from Viacom from the ‘grassroots’. A number of commentators have expressed the view that the FTC might be interested in this evidence.

In relation to the 63,497 clips in this case (which includes one from the FA Premier league of ONE second duration) YouTube stated most were the subject of DCMA notices and taken down in response. However, YouTube claims its discover in the case shows that many of these clips were posted at Viacom’s direction. This is an accusation that seems to have been backed up by Viacom twice having to ask the court to remove clips from the list - 241 clips in October 2009, after realizing that many had actually been uploaded by Viacom employees, and this week a further 6 clips that were mistakenly included back in October in addition to removing another 187 clips ‘ in order to streamline the issues in this case’.

YouTube argues that if Viacom is still only just discovering what was a legitimate authorised copy of its content in the site as opposed to an unauthorised one three years after starting the case how was YouTube supposed to identify this ‘obvious infringing activity’ within hours or days. Whilst the courts had found that service providers must remove material on their own where infringement would be apparent form a brief and casual viewing, YouTube argues that Viacom has shown that even it is incapable of doing this successfully. Additionally, if Viacom deliberately refrained from sending takedown notices for certain clips, how could YouTube be obligated to remove those same videos on sight.

YouTube also points to the recent decisions in cases featuring fellow video sharing site Veoh (v UMG and v Io Group) in which against UMG a request for summary judgment was refused and against lo Group the case was dismissed. In the Veoh case in particular the court agreed that the created on flash videos and associated actions by the site fell within the scope of § 512(c), because all of them are narrowly directed toward providing access to material stored at the direction of users. YouTube argues it does the same, so should be equally protected.

Both motions make compelling reading when read alone. It seems likely however that both motions will be dismissed and the case will head to the courtroom.

Eric Goldman, Associate Professor of Law at Santa Clara University School, asks the interesting question. If Viacom is right that YouTube induced infringement in 2005-06, but doesn’t currently induces infringement (after all, Viacom isn’t contesting post-May 2008 activity) How the courts determine when YouTube flipped the switch from inducing to not? And does flipping the switch cure any of the past infringement, or does it only cut off future claims?

Keep watching this one.

The report stage of the Digital Economy Bill at long last produced some real amendments to the Bill, but the biggest one has left some thinking the ‘improvements’ may in fact do more harm.

From the moment the bill was first published last year Clause 17, which gives the government “a power to amend the Copyright, Designs and Patents Act 1988 (CDPA) in future, to reflect fast-changing technology,” found opposition both within parliament - Lord Clement-Jones called it a Henry VIII clause - and with search and social media companiessuch as Google, eBay, Facebook and Yahoo who wrote to Peter Mandelson this week asking for clause 17 of the to be deleted from the draft law arguing the “clause is so wide that it could put at risk legitimate consumer use of current technology as well as future developments.”

The government who had already amended the clause once were set to amend it further this week but were trumped by Lord Clement-Jones who tabled his own amendment to replace the clause with one of his own.

The government’s proposed amendment would have made it clear that the scope of amendments to Part 1 of the CDPA is limited to Chapter 6 of Part 1 of the copyright Act, and clarified that the clause could only “be used only to make enforcement of rights easier or more efficient, not to define what constitutes copyright infringement”

Lord Clement-Jones’ clause introduced the power to shut down / block access to websites hosting infringing material by allowing “the High Court to grant an injunction requiring ISPs to block access to sites where there was a substantial proportion of infringing material that is either hosted by the particular site in question or accessed through the particular site. The injunction would be granted only where rights holders had first requested ISPs to block access to the site and when they had also requested the site operator to stop providing access to the infringing material, either by removing the material itself or removing the ability to access it.”

Lord Young responding for the government - and being in the interesting position (for a change) of making sense - pointed out the amendment was not a good idea for several reasons: (i) the provisions would need to be notified to the European Commission under the technical standards directive…subsections (6) and (7) of the proposed new clause would not count as notification in draft. Without the proper three-month notification, the provision would not be enforceable (ii) Blocking access to websites is an enormous step. It is worth noting that many and possibly most sites containing infringing material will also contain legitimate material. Finding a way of blocking infringing material without impacting disproportionately on legitimate uses is likely to be difficult, and (iii) sites that link to other sites that would be caught by this proposed clause but which do not have any control over or even knowledge of the content to which they link. That could lead to search engines being on the wrong end of a blocking order, something which will cause significant public disquiet.

Lord Erroll who supported an amendment that would have completely removed Clause 17 from the bill, as he would have prefered to see the next Parliament conduct a proper review or rewrite of the CDPA also saw a problem with Lord Clement-Jones’ amendment. ” We have to remember that the Bill does not just deal with streamed video, film and music. It also involves text-it can be applied to ordinary short text and brief things like that. What do search engines do? They search text and reproduce it in an aggregate form so that you can find what you are looking for. That means that, almost certainly, all search engines will be infringing from day one.”

Lord Clement Jones responded that he did not think this a problem. “I do not believe that this will involve thousands of sites. As soon as the ISPs notice that this legislation has gone through, they will alter their behaviour. We have seen what has happened in Sweden where there has been a steep fall in pirate sites, and I believe that it would be exactly the same under this legislation. [I] also cannot accept the Minister’s points about the EU technical directive in this case…If the Minister thinks that the wording of proposed new Section 97B is not precisely apposite for the purpose, it can always be changed at Third Reading to make sure that it is valid. We would welcome amendments to that effect.”

The clause was be put to the vote. It passed by 165 -140, and so is now in the bill.

UK ISP Talktalk reacted strongly to the new clause, calling the measure “draconian” and “futile”. Director of strategy and regulation, Andrew Heaney Heaney said “The amendment seems to require ISPs - and by implication their customers - to pay costs to rightsholders unless we bar a site prior to an injunction being granted against it. The amendment proposes that if a rightsholder’s application for an injunction against a website is ultimately successful, the ISP has to pay the rightsholder’s costs for making that application. This will inevitably encourage ISPs to bar access to a site immediately, in effect turning us into judges deciding which sites our customers can and cannot access.”

It certainly seems that the Lib-Dems have manged to get the bill looking ven more likr America’s DCMS than the government - a feat in itself. How long will sites be blocked? who will review the sites to see if they can be unblocked? It seems to me all this clause now does is as the earl of Erroll said in the debate, give the entertainment indutries yet another stick - this time through lawyers - “to threaten people with huge costs in court unless they roll over and give lots of money up front, so that people end up settling out of court.”

As on the day the bill was first published, Clause 17 must go.

A number of reports appeared last night – such as this one (since update by the Guardian’s Charles Arthur) claiming that the UK government were back-tracking on the so called ‘three strikes rule’ to deal with persistent alleged illegal p2p filesharers. It came as the government published their response to a petition on the government’s e-petition site.

“We the undersigned petition the Prime Minister to abandon Lord Mandelson’s plans to ban individuals from the internet based on their use of ‘peer to peer’ file sharing.”

The government’s response describes the aims of the Digital Economy Bill, and the hope that warning letters will be enough to “secure our aim of a 70% reduction in illegal peer to peer file sharing. If that proves not to be the case, the Bill provides a reserve power obliging an ISP to apply ‘technical measures’ to a customer’s internet account to restrict or prevent illegal sharing. Technical measures might be a band width restriction, a daily downloading limit or, as a last resort, temporary account suspension. A proper independent appeal would be available against application of technical measures. More widely we also include a reserve power to amend the Copyright Design and Patent Act. This will allow us to tackle quickly any misuse of emerging technologies for copyright infringement and provide an element of future proofing.”

What got the media claiming the government had changed its tune came at the end of the response where it states:

“We will not terminate the accounts of infringers - it is very hard to see how this could be deemed proportionate except in the most extreme – and therefore probably criminal – cases.

We added account suspension to the list of possible technical measures which might be considered if our measures to tackle unlawful file-sharing through notifications and legal action are not as successful as we hope. This is but one of a number of possible options on which we would seek advice from Ofcom – and others – if we decided to consider a third obligation on technical measures. However what is clear is that we would need a rapid and robust route of appeal available to all consumers if we decided technical measures were needed.”

The problem with this is that nowhere in the bill does it actually say the government will terminate the accounts/cut off infringers, in the first place. The government and a media obsessed with talking about ‘3 strikes’ (which again, is not stated anywhere in the bill even though the government has indicated that something of the sort could operate – although a strike could mean 50 or 100 or any other number of ‘alleged’ infringements). Even the relevant section heading in the bill is ‘Obligations to limit internet access’ . According to the Bill’s current text the technical measures employed :

(a) limits the speed or other capacity of the service provided to a subscriber;

(b) prevents a subscriber from using the service to gain access to particular material, or limits such use;

(c) suspends the service provided to a subscriber; or

(d) limits the service provided to a subscriber in another way

I agree with the Open Rights Group who say this ‘backtrack’ is a red herring.

‘Temporary account suspensions’ sound like the government would to suspend accounts for a few hours, or at most a day, to fit most people’s idea of ‘temporary’ and ‘suspension’. We doubt ‘suspensions’ would be so brief. We can assume what the government means to you and me is ‘disconnection’.

Indeed one of the problems with this bill is that it contains a worrying lack of actual detail that is being hived off into ‘Codes’ and Statutory Instruments. Parliament is being asked to sign off on a bill and trust the government to fill in the blanks later. Gordon Brown’s favourite Judge, Simon Cowell , along with the likes of Sir Terry Pratchett (disappointed in you Terry) who have written to the government urging them to stand firm and push this bill through would have been in a panic this am with some of the headlines but can rest assured that the government is still doing their industry’s bidding.

Why I love buying Concert tickets and why you should always look on more than one site.

Today I was looking at an upcoming gig and on Ticketmaster the price for 2 tickets was quoted as £16.50 each (inc booking fee etc). On See Tickets the same tickets were £15.75 each (in booking fee) but with an additional charge of £2.25 as a transaction fee for any order.

So, a total of £33 on Ticketmaster and £33.75 on See Tickets.

So, I bought the tickets from Ticketmaster, right?

WRONG.

What I had not yet mentioned was the £5.25 additional charge by Ticketmaster for sending the tickets to you by secure mail – their only delivery option: no box office pick up or eTicket or unsecure mail option. No postage charge on See Tickets, so the actual totals for the two tickets on both sites are:

Ticketmaster: £38.25
See Tickets: £33.75

As an aside, the face value of the tickets is £13 each, which means Ticketmaster is just shy of charging you for a third ticket to buy just two.

Anyone remember the days when you could buy at the box office and pay the price it actually says on the ticket? …

January is the time of year where you are meant to look ahead to what is in store during the coming year. So here’s my look back/ahead.

IT/Internet
Copyright

‘3 Strikes’ permeates across Europe
In a move to combat internet piracy, several countries have adopted or proposed laws that would involved cutting off internet access to ‘alleged’ illegal p2p filesharers. South Korea became the first country to implement a three-strikes law, closely followed by Taiwan. France adopted the ‘Hadopi law’ in September, although it has yet to become law, with the French data protection agency currently holding up to act, over concerns at how the punishment procedure of the Hadopi law would work in practice. Both the New Zealand and UK governments have put forward proposals ( The Digital Economy Bill in the UK) which would possibly result in ‘3 strikes’ rules.

Meanwhile Singapore, Germany and Spain are amongst the countries that have said they will not cut off subscribers. Spain’s proposed law – passed by the cabinet - would target websites accused of facilitating piracy. First warning letters would be sent, then an appearance before a panel of experts, who would decide whether to then refer the case to a judge, who would then have to power to order the closure of the site.

New European rules, which need to be implemented by all Member States by June 2011, included Article 1(3)a of the new Better Regulation Directive (Directive 2009/140/EC ) – the argument over the wording of which almost scuppered the whole Telecoms Package – which states that any measures to restrict the fundamental rights or freedoms of citizens may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards…including effective judicial review and due process. A prior fair and impartial procedure and an effective and timely judicial review shall be guaranteed.

As more countries adopt ‘3 Strikes rules’ I would expect to see laws challenged under this article. In the debates on the Digital economy Bill in the UK, several Lords have already questioned whether the current drafting language of the UK’s bill would stand up to a legal challenge under the directive.

Broadband
Operators will be pressing ahead with were either rolling out or trialing superfast broadband of up to 100Mbps and more in Europe. This will be key for many operators as Value Added Services become the name of the game in attracting customer and reducing churn. According to a report from Informa – Beyond Triple Play: Value added services for broadband operators – Music subscriptions, online storage, home monitoring and games subscriptions were the most attractive value added services operators could offer. These were the most highly valued by consumers and the potential revenue to operators and the effect they could have on decreasing churn was highlighted. Orange (France) Telia (Sweden), SKT (Korea) Telfonica (Spain),TDC (Denmark) DT (Germany) and Virgin Media (UK) were amongst those identified as pursuing a broad service range. Booz & Company also identified VAS as one of the five distinct shifts they saw effecting the Telecoms industry in 2010.

Online Music
Make or break year for the likes of Spotify and Mog who both launched free/subscription based music streaming services in 2009. It will be a question of how long the big labels will stick with them before bailing out. To be fair to the labels they are at long last realising that they have to be more daring if they want to combat illegal filesharing by offering a real variety of alternatives, but I still would not be surprised to see Spotify or Mog ultimately fail. The Biggest threat to all of these online music services will likely come from telcos/cable operators bundling music download and streaming packages into their TV/Broadband/Phone offerings. BskB has launched such a service in the UK and Virgin Media is due to do the same (although due to Record company cold feet, it looks like this will not be the game changing ‘all you can eat’ service that it might have been).

Tablet Computers
Can Apple make the Tablet a must have? No. A must want perhaps, but a must have? I just don’t see it. For starters, it will be Apple priced. But it will be a Kindle Killer some say. Maybe, but: it will be Apple priced. To use it as your main computer, you’ll need a real keyboard and mouse to use with it in the home/office where pissing about using a virtual keyboard not only gets boring but doing so on the tablet is ergonomically unsound and screws your back in. [obviously should anyone from Apple want to sent me one to try out, I’ll be more than happy to let you try and convert me to its merits]

Telecoms

As mentioned above, Booz & Company five distinct shifts they saw effecting the Telecoms industry in 2010.
1. Growth Shifts to the East and South -Much of the growth in the telecom industry will shift from mature Western markets toward developing countries.
2. Focus Shifts to Value-Added Services – Much of the telecom world is being rapidly commoditized—from connectivity and basic services to low-end handsets, to networking equipment to the networks themselves—prompting virtually every player in the sector to seek out new sources of value. The clear solution: services.
3. The Digital Generation Sets New Expectations - As rivals in the telecom sector battle to move up the value chain, the world is quickly moving toward an ‘all digital, all the time’ model.
4. Operational Efficiency Becomes Even More Critical - The commoditization of large swaths of the telecom value chain is forcing every player in the industry to create the most efficient operations they possibly can— outsourcing non-core functions such as engineering and network and field services operations, even spinning off entire passive infrastructures that are no longer central to creating real value, and completely overhauling their business processes.
5. Regulators Take a Renewed Interest in the Sector - As telecom players move to add more services that require faster networks, many policymakers and regulators around the world are moving to support these efforts. No longer does the ideology of the free market hold complete sway over regulatory thinking. Instead, regulators are becoming more prescriptive and more interventionist as they look to support economic growth through large-scale broadband network deployment—in some cases even engaging directly in such investments.

Convergence and Consolidation
Started to happen in 2009, and likely to increase in 2010. In the UK, for example, Carphone Warehouse’s purchase of Tiscali UK, and the merger between Orange and T-Mobile’s UK businesses. If the latter merger is cleared some commentators expect ‘3′ to once again become a potential target for whether 02, Vodafone or even BT. Elsewhere, Deutsche Telekom has said it is seeking further partnerships and investment opportunities under a new strategy to address the growing convergence between TV, the Internet, and mobile service segments; Portugal Telecom (PT) is targeting overseas growth in its Brazilian markets and is looking at investing in further mobile operators in sub-Saharan Africa, including Mozambique; Belgacom CEO Didier Bellens said the operator plans to develop new technology and expand overseas. It sees opportunities in the former Soviet region, including Uzbekistan and Kazakhstan; Turkcell, is seeking investment in North Africa and Middle East region, where it does not have a strong presence.

There are also a number of IPO/Licensing opportunities in 2010

Australia: SingTel is considering selling a minority stake in its Australian unit Optus through an initial public offering (IPO) in Australia during 2010.
Azerbaijan: Fixed-line incumbent Aztelecom and regional operator Baku City Telephone Network (BGTS) are both likely to be privitised.
Bangladesh: The Bangladesh Telecommunications and Regulatory Commission (BTRC) has announced that 3G mobile licences will be auctioned this year.
Colombia: The Information and Communications (ICT) Ministry is preparing to award up to three new mobile telecommunications licences in 2010
Costa Rica: The Costa Rican regulator plans to award three new mobile concessions during the first quarter of 2010.
Côte d’Ivoire: The l’Agence des Télécommunications de Côte d’Ivoire (ATCI), plans to issue two 3G licences in 2010.
Czech Republic: The Czech regulator CTU intends to issue the fourth 3G licence in the course of 2010.
Denmark: TDC may be planning an IPO in 2010.
Egypt: Orascom Telecom Holding is seeking a partner to merge with in 2010/2011 , with small/medium sized operators in emerging markets or in Europe favoured.
India: The country will auction 3G licences this year (following many delays in 2009, mainly due to spectrum ownership)
Kosovo: Ministry for Economy and Finance plans to privatise incumbent operator, PTK, in 2010.
Libya: The Libyan government has announced plans to sell stakes in both its mobile operators—al-Madar and Libyana—through an IPO.
Pakistan: The country could eventually offer 3G licences during 2010.
Poland: Poland’s fourth-largest mobile carrier Play may be sold in 2010, whilst number one mobile operator, Polkomtel, is considering an IPO.
Serbia: The telecoms regulator RATEL, plans to award the country’s second fixed telephony licence early 2010.
UK: Cable & Wireless will demerge its businesses fully by the end of March 2010 . The operator has operationally split its two distinct business units into a Worldwide unit and a CWI international operator, as it forges ahead with the separate listing of the two operations on the stock exchange.

Nokia v Apple v Google
Whilst Nokia is still the biggest handset vendor (in market share) in the world, the end of 2009 saw Apple (through the iPhone) overtake Nokia to become the most profitable handset vendor. Nokia is expected to put a lot of effort into the US market in 2010, with Strategy Analytics believing that “a successful fight on Apple’s high-profit home turf can simultaneously help to revitalize Nokia’s margins and to put a check on Apple’s surging growth.”

Nokia and Apple swapped patent suits during 2009, with Nokia accusing Apple of infringing 10 Nokia patents for technologies such as wireless data, speech coding and security. Apple hit back accusing Nokia of infringing 13 its patents including graphical interfaces, teleconferencing, power conservation and touch screen technologies. Expect the hostilities to continue through 2010.

Nokia is also facing competition in the mobile operating system market where its Symbian system has for a long time been market leader, from Google’s Android operating system. Google’s move to launch their own branded handset, as Apple did with the iPhone, will also likely impact on both Apple’s and Nokia’s finances during 2010.

Media
Video on Demand
This year will see the UK version of Hulu and Arqiva’s SeeSaw do battle in the UK market. SeeSaw is built on the ‘Project Kangaroo’ technology platform that Arqiva bought from BBC Worldwide, ITV and Channel 4 following a Competition Commission decision to block the project claiming it would reduce competition and harm consumers. Those involved and many politicians criticized the decision saying instead of ensuring and financial benefits of the service stayed in the UK, it handed potential profits to the likes of Hulu. For example outgoing ITV head, Michael Grade said “”As a result of the Competition Commission turning down the decision to launch Project Kangaroo, I guarantee an American company will take the lion’s share of our content in the UK very soon…Google or Hulu. Hulu is looking to launch in the UK. As a result of the commission’s decision, UK creative money will go to the Americans and not get reinvested in the UK.”

As Grade mentioned, YouTube will also feature in this shake up having already secured its first long-form on-demand UK TV content with Channel 4.

I totally agree with Grade and others on this. Whilst it is hard to argue that the Competition Commission decision was flawed on legal grounds, the end result for the creative industries in the UK– which the government claims to care so much about – is potentially devastating.

Sports Broadcasting Rights
All eyes will be on the European as the Court of Justice it hands down an opinion in the Pubcasting case (The Football Association Premier League Ltd v QC Leisure and others / Karen Murphy v Media Protection Services Limited) – C-403/08 & C-429/08 - It looks at whether licence agreement provisions restricting foreign broadcasters from selling decoders, etc., for use outside their territory, is an illegal restriction of competition contrary to Article 81 of the EC Treaty, and also seeks guidance on the meaning of the expression “illicit device”.
This case could have a huge impact on the whole issue of copyright for broadcasts, and the idea that rights may be licensed to exclusive licensees in particular member states (for considerable sums) As the licensing methods under consideration in this case are also employed in other forms of sports broadcasting, the outcome will be closely awaited, given its potential to impact the industry’s approach to these issues.

YouTube Copyright Case
Both Viacom and Google have now asked a federal court for summary judgment in their copyright infringement case: Google says it doesn’t knowingly store or play copyrighted clips on the site, and if it does, it is protected by the Digital Millennium Copyright Act. Google also cites last year’s ruling in the Veoh/Universal Music Group case, in which a court ruled in favour of the Youtube. Viacom reiterates its initial argument, which is that Google and YouTube knew what they were doing and profited from it, which means the DMCA does not protect them.

Google should be feeling confident in this case, although one suspects that this case has a few more years in it yet.

Social Media
There’s an App for that. Yes, as we all get more mobile it has now become essential for your website/service to have an App (iPhone/Android/Symbian) people – myself included - now take whether or not there is an app to allow seamless access via mobile online into account before signing up for/using online services. (Yes, Shelfari, Library Thing etc this is why I don’t use you anymore)

Facebook Phone?
Google Buys Twitter?
Google Buys Evernote?
Nokia Buys Evernote?

Yes, it’s that time of the year again.

The gig of the year was Nell Bryden. After, that the rest are in no particular order.

1. Nell Bryden / Tom Mckean & The Emperors @ Monto Water Rats 09/02/2009 (She proved this was not a one off @Borderline 13/11/2009) I think the reason this remains my gig of the year was that I had gone to see Tom and the Boys (debut album coming early 2010_ and having listened to a couple of Nell’s tracks on mySpace wasn’t that impressed. Live, totally blew me away. Vibrant, funny, and delivers in spades.

2.The Veronicas @ Koko, London 24/09/2009 I’ve always been a sucker for Pop/rock and female fronted pop/rock in particular, and I discovered The Veronica’s early in 2009 and immediately fell in love with them. Catchy pop tunes with a slice of rock thrown in. Live this was even more so, and it was delightful.

3. Lucinda Williams @ Shepherds Bush Empire 27/07/2009 – Let’s get this straight. Lucinda does not like people taking photos when she’s on stage – REALLY doesn’t like it. However, once she got over being pissed off she once again showed why she is effortlessly good live.
4. Depeche Mode @ 02 16/12/2009 / The Killers @ 02 23/02/2009 Couldn’t quite make up my mind about these two BIG 02 gigs. Both had a lot to offer, and the sound quality was certainly better at the DM gig (from where I sat – and this does make a BIG difference), although the track selection was probably better at the Killers. Either way, I left both gigs pleased I’d gone.
5. Ingrid Michaelson @ Scala, London, 23/11/2009 (and @Bush Hall 27/04/2009)

Got to see Michaelson twice this year and must confess that I found both nights a joy. She is a relaxed and playful – and very funny – performer, who doesn’t take herself too seriously, but who has a bag full of excellent tunes, and knows how to get a crowd involved from the opening song. Currently one of my favourite live performers. The Scala gig had the bonus of the equally funny and good, Greg Laswell as support too.

6. The Decemberists @The Coronet 19/11/2009 As current album is a contender for my album of the year, the fact that the first half of the set featured the complete album was a treat. It worked well live (although Jen disagreed I recall). Second half of the set was ‘rest of’ best of set which was also pretty decent and made some tracks I wasn’t previously fussed with sound pretty damn good. I’m a convert, I’d go see them again.

7. The Low Anthem @ The Tabernacle 18/11/2009. Last year the folk revival seemed to be all about Fleet Foxes and Bon Iver, theis year The Low Anthem emerged from the ether and delivered a fine album and a stripped down but enjoyable live experience.

8. The Hold Steady @02 Academy, Islington, London 10/09/2009 The Hold Steady are just a great life act and the opportunity to catch them in a smaller venue again was a stark reminder of just how joyous seeing them live is.

9. Fishbone @ 02 Academy, Islington 05/06/09 Freddie may be dead but Angelo and the guys still know how to party (like saddam and others). Set leans more to the Ska side of things these days as opposed to rock, but they’re still one of the great live acts.
10. Regina Spektor @Hammersmith Apollo 04/12/2009 – It’s a good job the RS is a great Musician and singer, because her stage craft and audience interaction would not win any prizes – chilly almost. Thankfully, when you are this good, that can be forgiven (bit like with Ryan Adams). New album worked particularly well live, but things did drop off when band were dismissed in later stages.

The Digital Economy Bill was debated for the first time in the UK’s House of Lords this week.

As is the case with the bill as a whole the main points of discussion centred around the provisions to deal with copyright and p2p filesharing, indeed it even offered an opportunity for Peter Mandelson to practice his stand-up comedy routine: ” I recognise that this House is probably the one place in Britain where peer-to-peer file-sharing is associated more with passing notes in the Lords’ tea room than with piracy”

He hit out at critics who have suggested that the government’s policy to tackle the problem of illegal filesharing focuses on coercion, saying this “is quite wrong” and that “there is a primary role for education about the value of copyright, and a very clear obligation on the creative industries to get their act together and build business models that provide access to content at a cost that makes the risk of breaking the law an unattractive option.”

It seemed that some of the critics he referred to were in the Lords. Lord Lucas seemed to sum up the views of many when he questioned where was the stick for the entertainment industries to go with the truck load of carrots the government were providing: ” We also need to bear in mind that the problems now facing the industry are, to quite a large extent, of their own creation. The industry has been extremely slow to listen to the demands of its customers, and has had something of an abusive relationship with them, seeking to punish them before thinking of how to serve them better. It has taken a decade for the industry to produce sensible alternatives to illegal file-sharing, and the fact that a generation of people have become used to an illegality comes down to the industry’s sluggishness. It is still slow. The football people have complained that there are sites where people can download streaming video of premier division matches. All that the companies offer is an annual contract for several hundred pounds. They do not offer per match deals at a reasonable price. If companies treat their customers in that way, they really should not be surprised that their customers try to get round the system.”

The presumption of innocence and due process where also high on the minds of some Lords, with Lord Whitty making the comparison with the theft of a physical product: ” the shoplifters who steal the actual DVD, which is worth a lot more than the rights of an individual download to the rights holders, have a fair trial and are subject to due process. They do not receive a letter, but, at the first attempt of enforcement, they are subject to due process. However, in this system, due process enters the equation only at appeal stage.”

Many of the Lords criticised the government for not delivering a draft of the code which would set out how the process for alerting people about alleged infringement and the appeals process would function. This, the Lords said, was the critical part of the provisions they were being asked to approve. Lord Clement-Jones expressed the views of several Lords when he said “the terms of the all-important initial obligations code must make it clear what those thresholds are. The thresholds must be proportionate and must not be set too low. We should know what they are before the Bill goes through the House.”

Other Lords questioned whether the internet provisions in the bill would actually do more to stifle the growth of a digital economy rather than growing it. Baroness Miller pointed to the potential effect on free wi-fi networks, pointing to the planned town-wide network due to launch in Swindon. She also agreed with Lord Lucas and questioned why the bill choose not to encourage new models but to protect the old models and why it “seeks to make one industry that has seen phenomenal growth, investment and innovation-the internet service providers-pay for the protection of another sector.”

One issue, however, united the Lords more than any other and that was Clause 17, which gives the government “a power to amend the Copyright, Designs and Patents Act 1988 in future, to reflect fast-changing technology.” Lord Razzall summed up the feeling on the clause – called a Henry VIII clause by Lord Clement-Jones - by stating:”Clause 17, which effectively gives the Government power to alter copyright law by statutory instrument, should be rejected. .. I just think that if we are going to alter copyright law it has to be done by primary legislation, rather than by statutory instrument.”

This is a view echoed by Google, eBay, Facebook and Yahoo who have written a joint letter to Peter Mandelson this week asking for clause 17 of the to be deleted from the draft law.

According to the four “Clause 17 – which gives any future Secretary of State unprecedented and sweeping powers to amend the Copyright, Design and Patent Act – opens the way for arbitrary measures. This power could be used, for example, to introduce additional technical measures or increase monitoring of user data even where no illegal practice has taken place…This clause is so wide that it could put at risk legitimate consumer use of current technology as well as future developments. We all acknowledge that new business models need to emerge to support creative content. They are inherently risky and entrepreneurs rely heavily on there being a consistent and stable approach to copyright enforcement. This clause would inject an unprecedented level of uncertainty in this regard. The industry as a whole had hoped that the outcome of Digital Britain would be a clear, workable set of principles by which the industry could operate. On the contrary, Clause 17 creates uncertainty for consumers and businesses and puts at risk the UK’s leading position in a digital Europe.”

The Bill itself has now goes into a Committee of the whole House of Lords where the first amendments to the bill will appear, and hoefully Clause 17 - for starters - will disappear.

In an open letter to David Lammy, UK Minister for Innovation, some of the UK’s most eminent economists and intellectual property scholars have hit out at government proposals to consider changing policy on copyright term extension for sound recordings.. The letter, which has also been sent to the Cabinet Office, the Treasury and the Culture Minister, voices serious concern at the lack of evidence justifying a change that seems to show the Government - like the European Commission who have also ignored their own evidence based research - prefers special interests over facts.

The government has published its interim Digital Britain report today. I have written a post on various aspects of the report at Ofcom watch, but here I want to just highlight the government’s announced approach to illegal Peer-to-Peer (P2P) file-sharing.

According to the report: “Our response to the consultation on peer-to-peer file sharing sets out our intention to legislate, requiring ISPs to notify alleged infringers of rights (subject to reasonable levels of proof from rights- holders) that their conduct is unlawful. We also intend to require ISPs to collect anonymised information on serious repeat infringers (derived from their notification activities), to be made available to rights-holders together with personal details on receipt of a court order. We intend to consult on this approach shortly, setting out our proposals in detail.”

Now, I guess IP Minister David Lammy did not get to see a copy of the report before today, as he apparently told the Times earlier this week that legislation had been ruled out.

The government’s official response to its consultation on the way forward with this issue accepted that its preferred co-regulatory proposal was not going to work ” It is clear that it would be extremely difficult to develop a co-regulatory code which fairly represented the interests of all parties and was effective in addressing unlawful file-sharing.”

Interesting the government states: “There was general agreement among respondents that there was no one solution which would effectively tackle unlawful file-sharing. Rather almost all parties recognised there was a need for new sources of attractive legal content offering consumers what they wanted, in the format they wanted and at a price they were willing to pay.”

I can see a bright light, and it’s the light of the bleedin’ obvious. HELLO, my mom could have told you that was the best way forward - and several years ago.

However, due to the government’s plan A going out of the window that leaves us with plan B, which requires some legislation to specifically oblige ISPs to notify alleged infringers of rights (subject to reasonable levels of proof from rights-holders) that their conduct is unlawful. It also means a Code of Practice dealing with illegal file-sharing, supported by backstop powers overseen by Ofcom.

I Look forward to the consultation.

One final note: What I do love about government responses is the way they throw in stuff but don’t clarify anything, so we get the following:

“However, it is clear that rights holders are suffering financial losses, and that their losses due to unlawful P2P file-sharing are growing. To take three sectors as an example, in the UK in 2007, the music industry claimed losses of £180m; the film industry £55m; and TV £22m.”

Now, I’m sure the government and the entertainment industry want you to read those loses as being solely down to illegal P2P file-sharing, and not: bad business practice; poor products; lack of advertising spend and many other reasons. The only thing missing is the proof. Still, a minor point.

I note that the UK government has published the responses to its consultation on unlawful Peer-to-Peer (P2P) file-sharing and its impact on the British arts and entertainment industries. The consultation called for evidence on the issues involved and invited views from rights holders, Internet Service Providers (ISPs), consumer organisations and the wider public on a range of options to tackle the problem.

Perhaps unsurprisingly, the responses did not give united support for the proposals, or the government’s preferred co-regulatory proposal, which would give legal footing to an industry code of conduct agreed by the rights holders and ISPs.

There was across the board rejection of the governments proposals by the country’s ISPs. According to BT “Unauthorised P2P file sharing of copyright material is fundamentally a market issue which needs to be addressed through a range of commercial means.” Almost all ISPs suggested the way to deal with P2P was through the provision of legal offers, education and the use of the existing legal system to enforce copyright holders rights, and that any other approach jeopardised “the development of the ISP industry and reduce incentives for investment in infrastructure etc.” (BSkyB), and/or would constitute a “tax on the legitimate internet use” (Orange).

The ISPs are also united on their desire not to be seen as being the entertainment industries’ policing arm. BskyB argued that it should not have to warn their customers merely on the basis that a rights holder has said that a particular file was downloaded by a particular IP address. BSkyB states it should not be forced to act against any of its customers without actual proof of infringement- proof it would have to put to its customers before weighing up the claims of both sides. This is a job for the courts BSkyB argue. They - and others - also point out that the proposed technical solutions are also a none starter for ISPs unless it can be guaranteed to them that in doing so they would not jeopardise their ‘mere conduit’ protection from liability under regulation 17 of the Electronic Commerce (EC Directive) regulations.

Tiscali and others criticised the consultation for virtually ignoring the current legislative options open the rights holders, and for taking the view that because rights holders find the process onerous that ISPs should be made to do their work for them instead. The current laws protect rights holders - use them, they say. They also point out the false - or at least unproven - assumption that a reduction in illicit file sharing would lead to an increase in legitimate revenues to rights holders. According to them, the consultation’s proposals all have the goal of obliging “ISPs to take action to safeguard/grow the revenues of rights holders. No obligation is proposes nor foreseen for the rights holders.”

The ‘lost revenue’ argument is one that I have long held to be false. In rights holder logic, every track, album, film downloaded illegally robs them of the revenue for each and every one of those items. Now, you don’t need a PHD to spot the flaw in this logic. If person A downloads 5 albums and 3 films a month for free, if they are prevented form doing this they are no suddenly going to go out and spend the money on those 5 albums and 3 DVDs. True that person might buy 1 albums and 1 DVD, but that is not the one for one argument that the entertainment industry have continued to claim. The additional problem is that that person is probably ALREADY buying that 1 albums and 1 DVD legitimately, and the 5 albums and 3 film downloads are additional to that ‘legal’ buying, not instead of.

On the other side of the argument, it will come as no surprise to find that rights holders are in favour of the government proposals and the co-regulatory approach in particular, seeing ISPs as needing to take some responsibility for copyright infringement on their networks. Some responses to the consultation were in favour of streamlining the legal process to enable personal information to be passed directly from ISPs to rights holders. However, the Information Commissioner expressed concern about any move in that direction.

Lord Carter stated that the government would respond to the views expressed as part of the interim ‘Digital Britain report’ due to be published at the end of next week. No-one is expecting the government’s views to have altered, and see the threat of a legislative solution now very firmly on the table.