Pretty much every day or so, we end up getting into a debate somewhere in the comments here on Techdirt concerning the rather important distinctions between "theft" and "copyright infringement." While there are a bunch (the lack of a "loss" on the part of the owner being a big one), one important one is that you don't see anyone choosing on purpose to allow theft of their own products in order to boost their business -- yet, we see folks purposely choosing to allow copyright infringement to boost their own business models all the time.

In fact, the NY Times notes that a growing number of media companies have stopped sending takedown notices to YouTube, preferring to use the videos on YouTube as a part of their business model. Google has helped them out in this manner by allowing copyright holders to "claim" videos that they did not upload, and choose to share in the revenue created by ads, rather than requiring a takedown. Among those who have stopped doing takedowns entirely are CBS, Universal Music, Lionsgate and Electronic Arts. Universal Music is a bit surprising, given how it's been even more adamant than any of the other major record labels concerning how evil copyright infringement is. The NYT's is surprised by CBS's involvement, given that it's the sister company of Viacom, who is famously suing YouTube for $1 billion. Yet, CBS has always been much more open to YouTube, recognizing that if its shows were being uploaded, that was a sign of having a lot of fans, not something to be shut down.

The president of digital media at Lionsgate makes the point pretty clearly. saying that the company:

“[Doesn't] like the idea of keeping fans of our products from being able to engage with our content. For the most part, people who are uploading videos are fans of our movies. They're not trying to be evil pirates, and they're not trying to get revenue from it."

If only others would recognize this simple fact. Of course, a good starting point would be recognizing that copyright infringement isn't "theft."

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Last year, we noted that the new webcasting royalty rates pushed through by the RIAA appeared designed specifically to kill internet radio. These royalties are different and much higher than things like traditional and satellite radio, despite being much more fragile at this point in their development. As if to prove the point, Pandora, one of the largest and most successful online streaming radio providers is now saying that it's going to have to shut down if the royalty rates aren't changed shortly.

This is exactly what the RIAA wants, by the way. Even if services like Pandora introduce people to tons of music (personally, I've bought a ton of music I found on Pandora), much of that music is not from an RIAA-member label. The RIAA knew exactly what it was doing in pushing these higher rates: it was killing off alternative routes to promoting non-RIAA music. The RIAA labels have always thrived off a very limited distribution and promotion channel. After all, distribution and promotion are where record labels really make their money. Competing methods of distribution and promotion are threats to be killed off -- and the RIAA may have succeeded here (with Congress' and the courts' help, of course).

Oh, and don't think the solution is to only play non-RIAA music. The RIAA's spinoff, SoundExchange, gets to collect money on non-RIAA music as well. Oh yeah, it gets better too: if SoundExchange can't find the musicians to pay, it gets to keep the money. That's why it has a history of not looking very hard for musicians in order to pay them.

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We've already talked about how Italy's plan to have ISPs block all access to The Pirate Bay has failed by getting more people to visit the site. However, TorrentFreak points out another oddity in this whole ordeal. For the sites that did redirect The Pirate Bay, they pointed people to an IFPI-owned website. That seems highly questionable. Why should ISPs direct traffic intended for one private site to another private site -- allowing that second private organization to collect IP address info from folks intending to go to The Pirate Bay? If they really had to block the site, why not point them to a gov't explanation or, at the very least, a neutral site. Handing The Pirate Bay's traffic over to music industry lobbyists makes very little sense.

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What is it with politicians who position themselves being big pro-copyright supporters being caught potentially infringing on copyright themselves? Singer Jackson Browne, who is apparently a supporter of Senator Obama's presidential campaign, has sued Senator McCain for allegedly using a Browne song in an advertisement without permission. Of course, this isn't as clear cut as you might believe. McCain's campaign points out that the ad isn't actually from the campaign. And, while it's true that there's no compulsory license for pairing a song with a video, this is almost certainly infringement -- but Browne's claim of an implied endorsement may not get very far, because there are ways that it's quite likely that McCain could make use of Browne's song without Browne's permission.

Welcome to the bizarre, arcane, and confusing world of copyright licenses.

Depending on whether or not Browne's music is licensed to a performance rights organization like ASCAP, BMI or SESAC (and chances are, they are), McCain's campaign could most likely pay a royalty to them to use one of Browne's songs at an event (if not in a commercial). And, since there is compulsory licensing on covers of songs, in theory, McCain's campaign could have someone else cover Browne's song at a campaign stop, and Browne wouldn't have much he could do to stop it (again, other than make a stink out of it, getting McCain to back down). While it does seem as though there is an infringement claim here (and McCain's campaign knows it's not wise to turn this into a big deal), this story does highlight just how ridiculous various music licensing has become these days. Though, still, in general you would think that any political campaign (or its surrogates) would at least be a little careful to avoid using music from someone who supports the other guy -- as it's just asking for a PR headache.

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People seem to get pretty excited whenever we have stories of spammers and scammers getting long jail sentences, so I'm sure plenty of folks will be happy to hear that a phishing scammer just got sentenced to seven years in prison. Considering that he was scamming people's passwords to use elsewhere, this seems a lot more reasonable than the folks who get long jail sentences just for spamming. But, with all of these stories about spammers and phishers getting convicted, it always seems like the punishment is rather arbitrary. There's no clear pattern at all.

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In the past year or so, U2's manager, Paul McGuinness has lashed out at pretty much everyone, other than those in the music industry, for the evils of file sharing. His main target was ISPs, but also device manufacturers, search engines, social networks and many, many others. It wasn't long after this that U2 lead singer Bono more or less agreed with his manager -- though using more diplomatic language. However, as a few folks are joyfully noting, it appears that the only one to blame for the leak of U2's most recent tracks may in fact be Bono himself. Apparently, someone was passing by Bono's beach villa in the south of France and heard the stereo playing incredibly loudly with new U2 tracks, so he recorded them and put them up on YouTube.

To be honest, this story has a lot of questionable elements to it, and little to back it up. So it could be entirely false. Even if it's true, it's difficult to see how the quality could be even halfway decent. Either way, though, it does show how silly it is to blame others. Instead, why not look to examples like Radiohead and Nine Inch Nails who have shown that when you control the leak, it can work to your advantage in a rather massive way?

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We've written about patent hoarding firm RTI before, back when it sued Google. At the time, we pointed to Rich Tehrani's fantastic article about the company and how it was basically one guy who claimed his rather narrow patents covered pretty much everything having to do with VoIP. Pretty much any company of any substantial size that had anything to do with VoIP had been on the receiving end of threats and/or lawsuits from RTI.

Now, Joe Mullin points us to an absolutely fantastic description from the CEO of Fonality exposing RTI's patent badgering techniques -- and how Fonality fought back and (almost) won. The "almost" part is the sad part. In the end, they still paid the guy a little bit of money, though it was significantly less than what he had been asking for (and what he had sued them for). And, tragically, this plays into RTI's game plan as well -- as part of his initial pitch is sending over a list of all the other companies who have settled over these patents, which makes plenty of companies feel that since those other companies "settled" then it wasn't worth fighting and they might as well settle too. This is unfortunate.

But at least the post describes how to push back on his various claims. Here's a short excerpt, but it's worth reading the whole thing:

It was then that Jimmy enacted the second part of the classic troll playbook. Peer pressure. Jimmy started to list (and provide documentation to support) literally hundreds of other "big" companies that had already settled with him over this same patent. Heck, it seemed like everyone from AT&T to Cisco was on this list. A sustained bout of queasiness settled over me. Yikes, if they couldn't beat this guy, what chance did I have? He even told us how he had sued the mighty Google for $5B!...

But, then a funny thing happened. When we asked him *how* much he had settled for, he wouldn't tell us. Nor did asking "the Google" (you know, that series of interconnected pipes) help us much. There just seemed to be a dearth of information on either settlement amounts or terms. Did they settle for a million dollars? A billion? A free iPod? An agreement not to mention that they settled for zero? Well, heck, if nobody was writing about it, and Jimmy wasn't boasting about it, it probably wasn't much to boast about anyway. So, when my lawyers called and asked us if we were ready to settle, I did what every strong leader does in a moment of crisis. I put the call on speakerphone, crawled under my desk, and cowered with hands over head. It was from that towering position of omniscience that I gave the proud warrior cry to "fight on!"

Hopefully more folks will start exposing some of the sneakier tactics used in patent infringement lawsuits -- and how to fight back as well.

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Earlier this week, we wrote about Ohio's lawsuit against Premiere Elections Systems -- better known by its previous name, Diebold -- where we noted Premiere's claim that the problems were the fault of antivirus software. That didn't make much sense, as we noted, but Randall Munroe has explained just how ridiculous this is (in a way that only he can) with his latest xkcd comic:

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It's so cute when the big record labels pretend like they're embracing the digital era sometimes. Check out the latest effort from Universal Music, which the company has dubbed "Playlist Your Way," and which it purports is a new sort of physical/digital hybrid for the internet era. It does have a few good elements -- but it wraps it up with plenty of bad elements, most specifically the name. This isn't a Burger King "Have it your way" type of thing. You don't get to select the tracks you want in order to create your own CD or anything. No, you're buying a ready-made greatest hits CD (from artists who almost all already have out existing greatest hits CDs), plus a few digital extras.

Jess Hemerly over at the Institute For The Future breaks down both the good and the bad of this idea, noting that doing "podcast liner notes" definitely makes sense. These podcasts do sound interesting:

The biographical download brings alive the artist's history, including archival interviews and commentary from journalists, friends and family members. Each audio documentary runs approximately 15 minutes.

Yes, that absolutely could be quite cool, but it comes tied to forcing you to buy another greatest hits CD. If anything, all this really seems like is Universal Music trying to convince you to buy the same music you already own by adding a few random extras.

And, then, of course, there's the totally misleading name. It's as if Universal Music thinks its customers are stupid. If it advertises something as a customizable playlist, people are going to probably expect a customizable playlist -- but that's not what you get. You get a set playlist on a greatest hits CD, and then the option to download some extra stuff: "Consumers may choose six additional tracks and/or a full-length original studio album." Of course, if customers really want a playlist "their way," they're going to do it the way so many people do it these days: they're just going to download the tracks they want, and not feel suckered into buying the packaging, even if it's "designed to be digital friendly, with more color and new impactful designs." As Hemerly points out: "How does "impactful" design make a physical CD more "digital friendly?" What does this sentence even mean?"

The idea of including a podcast about the artist is a good one. It's just too bad Universal Music is basically only using it to get you to buy yet another greatest hits album, and then making a bunch of boastful claims that either don't make sense or simply aren't accurate. At what point do the big record labels realize that they should offer people real options to get what they want, rather than trying to hype them into buying a bunch of crap they don't care about to get at the tiny nugget of stuff they do want?

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We get tons of PR spam here at Techdirt, most of which is simply an attempt to get us to write about this or that startup or product launch. It pretty much all gets trashed. Occasionally we hear from various tech lobbyists as well, pushing an angle on a story that supports the angle they're pushing. But one of the oddest experiences we've had was with a firm called LawMedia Group, which we wrote about earlier this year when Declan McCullagh outed the group as having allegedly composed a letter from a group of corn farmers somehow opposed to Google and Yahoo working together. Why corn farmers would be interested in such things isn't clear -- but McCullagh pulled back some of the curtain on the way these sorts of lobbyist groups act, picking a somewhat random "group" and then writing these sorts of letters and simply placing the group's name on the top -- even if (as in the corn farmers/internet advertising situation) the group has nothing to do with the issue at hand.

In our case, as mentioned, the folks at LawMedia Group started out by acting as if we were close friends, and then insisting that they had some really secret info that was damaging to FCC boss Kevin Martin. It's no surprise why they would approach us on the subject -- as we've written critically about Martin for years. After ignoring repeated requests for a phone call during which this info would be "revealed," I finally said that if they had anything they wanted me to see, just send it over. And so they sent a bunch of stuff that basically confirmed what was well known: Kevin Martin has friends who work at AT&T. Shocking, right, that a telco regulator might have friends at a telco? But, of course, it was positioned in a way to make it look really secretive, even to the point of suggesting that Martin really worked for AT&T. In other words, it was totally bogus. I told the guy at LMG that the info seemed pretty pointless, and never spoke to him again -- though he and other colleagues keep emailing stories that might make Martin look bad.

Now Declan is back with more stories of questionable activities by LawMedia Group, including what would appear to be a series of op-ed pieces published in newspapers using the names of people who don't even agree with what's in the op-ed, but, from the sound of it, may have effectively rented their name out to LMG to use in the op-ed. Most of the article focuses on a guy in Boston who is in favor of net neutrality, but had an op-ed published under his name that strongly argues against net neutrality. The guy admitted that LMG had something to do with it, but refused to provide details. However, when asked his opinion on net neutrality, proceeded to stay stuff in direct contradiction with what was in the op-ed under his name.

While somewhat sleazy tactics like this may be every day business in Washington DC, it's good to see it exposed, especially when it's being done so egregiously. At the very least, maybe it'll get LMG to stop bothering me with bogus conspiracy theories about Kevin Martin.

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