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A move’s afoot to get a new trial for Jammie Thomas. She’s the Minnesota woman a court ordered to pay the recording industry $222,000 for copyright violations related to sharing songs.

This is potentially a big deal. If the so-called “making available” theory holds up, you’re likely going to see some odd copyright decisions come down the pike.

(It) rests in large part on…the judge’s decision that the record labels need only prove that Thomas made copyrighted music “available” on the Kazaa network. That means leaving the songs in a publicly accessible directory where they might possibly have been downloaded. Thomas confirmed earlier Monday that her appeal to the 8th Circuit will center on that point…It’s true that ditching the “making available” idea and making the RIAA prove the songs were actually downloaded means its lawyers would have to work harder. And it wouldn’t solve all of these problems above. But it would be a small step toward repairing some of the imbalances in copyright law today.

The plain language of the Copyright Act and applicable precedents mandate that an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work–a completed act of transfer. To permit a finding of distribution liability based on anything
less would be to transform section 106(3) into an unbounded form of civil attempt liability, even where no copies had ever been distributed and thus no harm had ever been inflicted on the copyright owner.

The headline here should be: EFF to court: Jammie Thomas judge was a dolt. At the time, the instructions the jury heard posited the following:

Jammie Thomas

The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.

That’s an important distinction. Based on what we know now, the courts agree. Bottom line: Thomas should get another day in court. And she likely will.

You may recall that the jury never found that Thomas had downloaded any music but had infringed by making the music available for others to download. So Friday the Electronic Frontier Foundation, along with a coalition of consumer and industry groups, said the court’s judgment should be overturned because of erroneous instructions to the jury.

But that was a mistake, according to the EFF (and a lot of copyright specialists who have since weighed in on the verdict.) Again, from the EFF submission:

Even the judge in the case now acknowledges that he may have goofed up. In October, when the Thomas verdict came in, my colleague Declan McCullagh observed that the Recording Industry Association of America’s victory was vulnerable.

Already, the EFF notes, Google’s been the target of some copyright owners who have pressed their case using the theory. Ditto for the DMCA notices sent to colleges and universities “based solely on evidence that students have made songs available for possible download by others.”

commentary

Time was when most enterprise software came in the front door as part of a formal, signed-off-at-the-highest levels procurement process. Or it got written in-house as part of an equally formal, multi-year development plan. Or some combination of the two. You didn’t expect that expensive packaged software you bought to just work out of the box did you?

However, beyond e-mail and calendaring, it’s been instant messaging that’s probably been the tool with the biggest impact, rather than something bigger and more architected. And IM came in from the consumer space, often informally. Indeed, many organizations still just use freebie IM from AOL or Yahoo or Google rather than some enterprise version.

Today, the next phase of virtualization–which goes by terms like Dynamic IT–is indeed a broader concept requiring a more deliberate and phased approach. But it got its start at the small scale (which distinguishes it from many of the virtualization management solutions being touted today that are only truly useful at data center scale).

Lots of software still gets purchased and developed that way of course. However, the truly striking story of the past decade is how so many of the tools and other software that we take for granted today are essentially bottoms-up phenomena. They largely came in the back door and made their way into what’s often called the "Shadow IT" of organizations. Official IT didn’t make this software ubiquitous and mainstream. For the most part, it was already ubiquitous and mainstream by the time IT departments got around to blessing it.

However, the trend goes well beyond open source. Consider the following two examples.

Especially as workforces get more distributed, tools such as Novell Teaming + Conferencing and Lotus Domino have moved beyond e-mail and calendaring to encompass a much broader set of formal and informal interactions within a company. Cisco CEO John Chambers has said that "collaboration" is the one word that describes where his company and the entire technology industry is headed.

Linux (and, more broadly, open source in general) is perhaps the canonical example of this trend. In some respects, Linux adoption just mimicked past adoption patterns for distributed computing in general–from Windows NT servers to PCs and even Unix in the early days. However, open source licenses make backdoor sourcing one big quantum step easier. Indeed, the basic idea that open source licensing helps to build a developer and user base that can then be monetized when the software goes into production underpins a lot of the thinking around business models associated with open source.

The downside of all this ad hoc-ism is that it can lead to tools that can’t really grow or that don’t have other characteristics–such as reliability–that become more important as usage transitions from casual to business-critical. (See twitter.) But that genuine caveat aside, the IT industry is in a qualitatively different place than it once was. The enterprise architects still have a job to do. But no small part of that job is now integrating with tools that users and departments have brought in on their own.

Even the red-hot virtualization trend is an example of bottoms-up. One of the reasons that virtualization was able to really break out was that it lent itself to small, local IT optimizations with immediate payback. You could install VMware on just one or two servers and see an immediate benefit. You didn’t need to rototill your data center management and change any number of business processes.

Three
Mac rumors sites have received anonymous tips that Apple is getting ready to introduce a subscription iTunes service in September.

The iTunes Store might soon have a yearly subscription option for $129 a year.

The reports are all eerily similar, suggesting that accurate or not, all the sites heard from the same source. Under the new service, Apple would offer unlimited access to half of its iTunes Store–as of an October launch–for $129 a year, or $179 for an iTunes/MobileMe combo deal, in the U.S. only. If you’re already a MobileMe subscriber, you’ll only have to fork over $99.99 for the subscription service, perhaps as a mea culpa for this summer’s disastrous MobileMe launch.

We were already pretty sure that September would bring new iPods, but Apple might have something more ambitious up its sleeve. MacRumors, MacDailyNews, and The Unofficial Apple Weblog are all saying a tipster spilled the beans about a $129-a-year iTunes service that would piggyback on Apple’s MobileMe service.

This service introduction would also reportedly include an expanded MobileMe service that would let you access “the cloud” (Apple calls it iDisk) from your
iPhone or
iPod Touch.

While we’re on this track, let me be the first to revive–based on absolutely nothing–the Beatles on iTunes rumors for September. It has to happen one of these days.

Rumors of an iTunes subscription service are not new; I found reports dating back to 2005 that Apple was getting ready to introduce such a thing. CEO Steve Jobs has historically pooh-poohed the idea of rental music–and such services haven’t exactly taken the world by storm–but Jobs has also said he wasn’t crazy about video-playing iPods and Apple-designed mobile phones, either.

(Credit:
Apple)

Read part 1 of the Kevin Rose interview.

What about hardware and R&D costs?
Rose: Digg’s very lightweight. We don’t serve, you know, YouTube videos. So for us it’s not like we have some crazy bandwidth bill at the end of the month. I mean, it’s crazy, but it’s not YouTube crazy.

q&a MIAMI–In the first half of a leisurely chat at the Future of Web Apps conference, Digg founder Kevin Rose talked about open standards, improvements to the site, and his thoughts about some other companies’ social news projects. Now, in part two, Rose discusses the problems with Web analytics, his high-profile side projects, and Digg’s future amid escalating talk of economic uncertainty and “Bubble 2.0.”

What do you think is the stupidest thing that’s getting done in Silicon Valley right now?
Rose: Oh, boy. I don’t know. I really don’t spend a whole lot of time on the stuff I don’t like.

Are you concerned that if economic conditions get tougher and the ad market tightens up, that you’ll feel forced to sell?

How is Digg going to have to evolve to stay relevant, with so many new ways of getting news, and emerging competitors?
Kevin Rose: I think that we’ll take a big step in our evolution when we we launch the recommendations side of Digg.

As far as Pownce is concerned, it’s really another little side project that I thought would be fun to do on the weekends. My time right now is our little Sunday get-together where we sit down for an hour and talk about what feature we’re going to work on. There’s only really one full-time developer on it right now, and that’s Leah (Culver). So when the time comes, as we continue to grow, we’ll do the same thing and put management in place and let it grow itself. But it’s tricky. Of course, especially in the very early stages of starting another company, there’s a lot of hand-holding that needs to go on. But if you do it right, it’s possible. It won’t kill you.

You’ve also got two other companies where you’re in a leadership capacity in one way or another. Do you ever get criticisms that you’re spreading yourself too thin?
Rose: Well, that’s very easy. Essentially, I started Digg and then Revision3 very shortly after…so Revision3 came out and the idea was to get a team together that could manage the business day-to-day and I could stay focused on Digg. So we did that, and hired a CEO.

But one of our big challenges is always keeping the site simple, clean, lightweight, and useful, and not overcluttering it. We have a list of features in development that’s a mile long, of stuff that we’ve thrown around of potential ideas that we want to do. I just would hate to see us turn into a big “bloatware” application. Being able to do some of these new things but still make the experience of the site easier to understand and useful to people (is a challenge).

At Digg we’re using Quantcast to measure our stats. That’s a much better system where they give you a piece of code that you put on every page so that they can verify the traffic and who’s coming to your site, and that’s a nice third-party site that people look to for traffic numbers.

So would you consider something like the integrated pop-up windows on Facebook’s Beacon partner sites?
Rose: I’m not a huge fan of sliding up or popping up something in front of a user’s face, but the idea of seeing the Digg button and clicking it and not having to redirect you to anywhere else is a pretty cool one.

And how long until you reach the end of that path to profitability?
Rose: We don’t really talk about our financials, but it’s nothing that I’m really concerned about. We could survive an economic downturn, that’s not something we’re worried about.

On the question of analytics, obviously there’s a lot of controversy there. There are people saying that current methods of audience measurement just don’t work. What’s your take on the whole debate?
Rose: It’s a broken industry. There’s a lot of confusion and misinformation out there about Web stats and traffic. The thing is, at the end of the day, it’s really not going to matter unless it’s really impacting your ad revenue. A lot of really large advertising firms and people that are buying and spending online determine who to advertise on based on things like your ComScore numbers. That system is severely broken.

How many of them keep coming back?
Rose: I’d have to look. We don’t have that stat in Google Analytics, and I’d have to ask for a custom query from MySQL to find out. I mean, the problem is that there’s so many people that use the downloadable app, and Analytics doesn’t track that, and we have so many people who are commenting and responding and other things via the desktop app, and ones that are coming in through the Web site, and ones who are coming in through Pownce Mobile, which we don’t have numbers on as well.

Is the site going to look any different?
Rose: Yeah, it’ll have slightly different navigation, and there’ll be a whole section dedicated to introducing you to stories and people that you Digg in common with. But long-term, we need to make Digging as easy as possible. I think we could do some improvements in just making it an integrated experience into other sites so that if you’re on, you know, the New York Times or others and you want to Digg something, it’s not like a five-click step where you have to click, open Digg, find a story, Digg the story, log in–that’s what I consider to be a little bit of a pain.

Rose: Digg has 25 million people a month coming to the Web site. We’re not going anywhere. We have very strong financials, we have a very clear path to profitability, we have a small team. We’re 50 employees.

But as far as sites like Pownce, the only thing that matters are the stats that we care about. We don’t really want to share them with the outside world, we’re not using them to raise money, we’re using it for our own internal benchmarks.

Ooh, like what?
Rose: I definitely can’t tell you about that stuff. (Laughs.) But Digg can be applied to a lot of different things outside just news, images, and videos. Anywhere where there’s an overabundance of information that you can use a collaborative filter to sort through, to provide you with better results, I think that we could go there.

You’re kind of this icon of Web 2.0, at least from a mainstream perspective, but there’s been a lot of talk about, obviously, economic downturns and whatnot. How is Digg, and how is this whole social-media industry in general, going to fare in the face of tougher economic conditions?
Rose: That’s a good question. I think that you’re going to see a lot of companies that are going after their Series B rounds of funding that don’t have the traction and the users, that are just going to hit the wall and they’re not really going to have any place to turn.

Overall, the numbers have been great. We’ve rolled out some new features. Leah’s just preparing to roll out the API, so I suspect you’ll see Pownce on a bunch of different devices and areas very soon.

Digg founder Kevin Rose.

How are Pownce’s growth numbers?
Rose: They’re good. We have over 170,000 registered users. We’re adding about 700 new users a day. They’re really good.

What, not even any egregiously over-the-top launch parties?
Rose: I try to avoid a lot of those launch parties. Things have died down a little bit over the last few months. It’s not as crazy as it once was, you know, a year ago.

Going forward, what do you think your biggest challenge is?
Rose: That’s a good question. (Long pause.) I think that we need to continue to explore, well, not only continue to improve our existing products, but also explore other verticals that we could get into.

(Credit:
Digg)

I probably visit the Revision3 offices, I would say, once, maybe twice a month, something like that. So for me, outside of shooting Diggnation (Digg’s video podcast, produced by Revision3), it’s really easy. Every once in a while there will be something to handle over e-mail. I sit on the board, so I of course attend that meeting every month, but there’s a very strong, awesome management team in place that handles it day to day.

I wish someone would give me $1 billion after a five week courtship.

It only took 10 episodes of our illustrious podcast series for us to get the big-dog interview. That’s right, Matt Asay, me, and Ashlee Vance spent an hour with Marten and Rich to figure out just what the heck happened and why it didn’t happen to us!

Open Season Episode 10: The MySQL acquisition forces us off our respective couches.