Hank calls the technique equivalent to a virtual cover-band playing The Beatles’ songs. He bought all of their albums, had a computer analyse the waveforms to determine their pitch, timbre and other defining qualities, then destroyed the original copies of the music.

He then had a computer reconstruct the songs based on the data it collected from analysing the waveforms. It wasn’t a recording, but a complete mathematical rebuild of the song.

That’s really cool and incredibly impressive that he managed to recreate the tracks from scratch like that, but there’s no way the defence stands a chance against EMI’s lawyers. I think I remember this argument being tried before with MP3s. A defendant claimed that because a majority of the waveform data was thrown away during encoding, it was not identical to the original recording.

Nice try, said the judge. As long as it’s audibly identifiable as a certain recording, it constitutes as copyright infringement. At least that’s what I remember. If anyone knows the specific case or I’m completely wrong, please chime in. Have fun in court on November 20, Mr Risan. [FastCompany]

The leaks suggest that countries who sign up to the US-promoted plan would have to force ISPs to proactively police copyright on user-generated content, cut off those accused (or face liability), and put “graduated response” clauses in customer contracts. An example of graduated response is France’s “three strikes and your out” law. There, you get two warnings if caught sharing music or movies, then you’re banned for up to two years.

This provision would mean that every country that signs up to ACTA must allow content owners such as record companies and Hollywood studios to sue ISPs for failing to stop their subscribers from illegally sharing copyright-protected material such as music and movies.

By the way, two major sources of counterfeiting — Russia and China — aren’t in the talks. If you want to get your head further around the issue, these sites do a great job of breaking it all down: [Electronic Frontier Foundation and PC World via BoingBoing]

Interestingly, some ringtone services actually did pay performance royalties at one point. US District Court Judge Denise Cote ruled against the ASCAP, saying that “when a ringtone plays on a cellular telephone, even when that occurs in public, the user is exempt from copyright liability, and [the cellular carrier] is not liable either secondarily or directly”.

I’m sure the music industry will find some other reason to sue somebody else next week, don’t worry. [EFF via Ars]

As a result of the individual motions by both companies, two hearings have been set for November 12 to determine whether there’ll be a January trial. I’m not-so-secretly hoping that Judge William Alsup will look at the “user licence agreements for both Mac OS X 10.5 and Mac OS X 10.6″, arguments about Digital Millennium Copyright Act, and the whole disc protection circumvention mess and make Apple and Psystar duke it out in court. Hell, I’ll volunteer to transcribe the case for everyone’s entertainment, stupid argument by stupid argument. Just make it happen. [AppleInsider via Crunch Gear]

When it comes to making personal copies, U.S. District Court Judge Marilyn Hall Patel left that totally gray—that is, she chose not to rock the boat on whether or not making personal copies actually falls under the “fair use” doctrine of the DMCA. Lots of “mays” and “whiles” in there:

“So while it may well be fair use for an individual consumer to store a backup copy of a personally owned DVD on that individual’s computer, a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies.”

So DVD ripping is kind of like laws about pot in some places: It’s sorta legal to possess in certain circumstances, but not kosher to sell it. Thanks for clearing that up, judge. [Wired, NYT]

Psion PLC announces that Psion and Intel Corporation have settled the trade mark cancellation and infringement litigation brought in the Northern District of California relating to the ‘Netbook’ trademark registration.

The litigation has been settled through an amicable agreement under which Psion will voluntarily withdraw all of its trademark registrations for ‘Netbook’. Neither party accepted any liability. In light of this amicable agreement, Psion has agreed to waive all its rights against third parties in respect of past, current or future use of the ‘Netbook’ term.

They don’t say exactly what caused this change of heart, probably because saying “Intel gave us a stack of cash and told us to piss off” doesn’t sound very professional. [SlashGear via CrunchGear]

After getting cornered with a few leading questions about whether or not RealDVD software is capable of copying rented DVDs (err, yes?), RealNetworks and the MPAA directed the discussion towards the company’s plans for Facet, a $US300 DVD-ripping player inspired by the massively expensive Kaleidoscape boxes of yore. Real CEO Rob Glaser even went so far as to lay out what’s really at stake in this case:

If we’re enjoined (from selling RealDVD), it would have very dire consequences frankly for us to ever be in this business.

And this is just a preliminary hearing! Essentially, if the court rules against RealDVD, then Facet—and its software, which would presumably be licensed to other DVD player manufacturers—would be dead in the water. Moreover, the precedent could make any DVD backup solution much more difficult to bring to market. Shitty, all around.

But the more I think about it, the less this strategy makes sense. Testing the waters with a low-stakes product isn’t a bad idea in itself, but RealDVD is the wrong low-stakes product for the job. Real claims that Facet copies DVDs to an internal HDD, but offers absolutely no means by which these files could be shared—they’re DRMed, disconnected from the outside world a locked in an actual box. RealDVD, on the other hand, copies films to your PC’s drive and wraps them in iTunes-style DRM, which allows playback on up to five machines. That opens opens a piracy angle for the MPAA—one that could conceivably swing the case in their favour, killing RealDVD and precluding production of Facet for reasons that don’t even apply to it. [CNET]

Yes, OK, we called the software lame and poked fun when it earned that inevitable injunction, but that was just too predictable to get all earnest about. Well, RealNetworks might’ve been playing a long game.

If you don’t recall, RealDVD was a late, unusual addition to the DVD copying field. By late, I mean the latter half of 2008, and by strange, I mean not free. Surprise! The MPAA is outraged, and the product is pulled from shelves literally days after launch. Now the controversy is making its way to a federal court, where Real attorneys will square off against whatever reptilian law-creatures the movie industry is employing these days, and the fate of RealDVD will be decided.

But the NYT thinks they’ve uncovered RealNetworks’, ehh, Real™ intentions: to build ripping capabilities into mainstream DVD players. It’s all part of a project called Facet that actually predate RealDVD, at least internally, by some time. Real wants to licence this software on the cheap to major DVD player manufacturers, who could then produce reasonably priced (sub-$US300) DVD-saving players.

Fun, right? Well, the underlying technology is pretty much RealDVD on Linux, so it—and pretty much any other integrated DVD player backup solutions—is depending on courtroom victory this week. If this is really their strategy, then RealDVD was might have never even a serious product—just a sad, legal, sacrificial lamb. [NYT]

First, the AP decided that fair use wasn’t real and said it would start going after people for even using their headlines with links to their content. Now? The Associated Press has gone after one of its own affiliates for posting an AP video. An AP video embedded from the official AP YouTube page. Are you fucking serious, AP?

The executive who called the station accused them of “stealing our licensed content.” Here’s a quote from an interview from the obviously frustrated station manager:

And we’re an A.P. affiliate for crying out loud! I stumped him on that one… What is really shocking is that they were shocked that they’ve got a YouTube channel that people are embedding on their Websites. He seemed shocked by that. “Oh, I am going to have to look into that” is what he told me.

Wow. Just, wow. [TechCrunch]

It’s a sloppy grey area we’ve looked at before: When you buy digital content, do you really own it? With actual CDs or books, the first sale doctrine lets you hawk it later on eBay or gave it away if you want.

But was Obama in the clear to give away those showtunes, even if he bought them legally on iTunes? The EFF notes that in iTunes’ 9,000-word terms of use, they coincidentally happen to sidestep the question. And if first sale applies, what about…? Oh forget it. The EFF ponders all the possibilities much better than I do. The point is simply that ownership, which used to be simple question, is now much more complicated than it needs to be, and ultimately, it sucks for regular people. [EFF via BoingBoing]