DVDGuy’s Blog @ Digital Digest

Welcome to another issue of the WNR. For yet another month, I waited naively in the vain hope that more figures would start leaking out for August’s NPD analysis, but alas, that wasn’t to be the case. So as usual, the gaming section is where August’s NPD will live (on life support, coming in and out of the coma).

Otherwise, it was a fairly quiet week. I suppose I should talk about the iPhone 5 release or whatever. Was that perhaps the most anti-climatic launch event in Apple’s recent history? Through the various leaks, almost everything about the new iPhone had been fairly well known long before the Wednesday launch event – Apple seems to have given up on the almost impossible job of trying to keep things secret. And even if we somehow didn’t know about the larger (well, taller anyway) screen, LTE and the other new stuff, none of it would have been a huge surprise anyway. There’s nothing wrong with incrementally improving an already well established product, but having failed to keep up with its competitors in terms of screen size, and features such as NFC, the least Apple could have done was to inspire us with some of the ways to use newly added features. This has been their strength in the recent past, so to hear them talk more about “faster CPUs”, “better graphics”, brings back painful memories of the PC upgrade cycle and how pointless it all was talking about MHz and RAM sizes.

With all that said, the iPhone 5 is set to become the fastest selling gadget of all time, so maybe I have no idea what I’m talking about (more than probable). Vote in our poll to tell us your thoughts about the new iPhone.

Google’s self-censorship continues this week, with The Pirate Bay joining the list of blacklisted search terms that will no longer be part of Google’s Autocomplete and Instant search products. The name of the website, and its domain name, joins notorious terms such as “torrent” and “RapidShare” as part of Google’s blacklist.

I have no idea what this latest move, part of Google’s appeasement policy, will actually do to combat piracy at all. I guess people who want to search for The Pirate Bay, but don’t know how to spell the words “Pirate”, “Bay” and “The”, may just give up and buy movies and music instead, or something. Interestingly, searching for “teh pyrat bey” still brings up TPB website as the first result, as Google’s auto-correct features appears to still show love for the website.

Meanwhile, TPB co-founder Gottfrid Svartholm has arrived safe and relatively well back in Sweden to face new hacking charges, and to serve the prison sentence imposed on his for his crime of being initially part of The Pirate Bay (as well as pay the million bucks he will be unable to pay), and further jail time for not appearing for a court hearing earlier in the year.

Speaking of millions of bucks in damages, the legal merry-go-around continues for Jamie Thomas-Rasset, as the appeals court ruled this week that the damages decision from the second of her three previous trials was the one that was perfectly valid, and that the judge had no right in those trials to reduce the damages amount to something reasonable like $54,000. Instead, Thomas-Rasset will be asked to pay $222,000 for the act of sharing 24 songs. I guess that’s better than the $1.92 million from the third trial.

There’s no doubt that a large percentage of the $222,000 is punitive in its nature, as even considering the thousand songs that Thomas-Rasset is supposed to have shared (only 24 of those were included as part of the trial), there’s no way that $222,000 worth of damages could have occurred via direct damages. If we take the calculation used to come up with the $222,000 in damages, and couple it with the 11,000 copyrighted songs that the RIAA identified were being shared on LimeWire before its demise, each having being shared a thousand time (the RIAA actually claimed each were shared “thousands” of times), the resulting total damages would be worth excess of $101,750,000,000 (that’s $101 billion). Even if you take the $222,000 and divide by the 1,000 songs that Thomas-Rasset is alleged to have shared, multiply that by the LimeWire figures, then that’s still more than $2.4 billion. And this was just one music sharing method.

The real question is, given Thomas-Rasset’s intent (ie. to download songs for free), is it really fair to class her actions along with wilful pirates that make and sell counterfeit CDs, or start websites fraudulently charging people to download songs that are pirated in the first place? Her intent was to save a few thousands dollars, at best, by downloading instead of buying, so should the punitive nature of the damages be hundreds of times greater?

As controversial as the French “three-strikes” Hadopi regime has been, with the very same thing coming to the US (but twice as many strikes! Beat that Frenchies. USA! USA!), the trials and tribulations of both Thomas-Rasset and her compatriot Joel Tenenbaum would have been far more agreeable if they had fallen foul of these graduated response laws, rather than having to go through the civil court system.

Ironically, three-or-more strikes actually works out better for those that do admit to pirating stuff. At least compared to the threat of a civil lawsuit. But for one craftsman in rural France, his Kafkaesque ordeal might point to the more unfair aspects of graduated response.

Alain Prevost has the unfortunate distinction of being the first person to be fined under France’s Hadopi laws. This is despite Prevost proving he wasn’t responsible for any downloads by bringing the real perpetrator, his soon to be ex-wife, to court to testify to this fact. Prevost was still fined 150 euros for failing to secure his Internet connection.

Having received two warning emails and letters regarding illegal downloads, Prevost actually implemented his own punishment by disconnecting his Internet account, and instructed his wife’s lawyer to write to Hadopi to explain everything. But the Hadopi agency did not like the fact that Prevost stopped responding to his emails (hard to do when you don’t have an Internet connection), and wrote to Prevost to order him to travel all the way to Paris to explain himself. Prevost declined the invitation, feeling such a trivial matter should not warrant the expense of travel. This apparently made Hadopi even more angry, and it was at this point the police were involved. Prevost was summoned to the police station to explain himself, and it is here that Prevost made his biggest, and possibly only mistake, in this whole ordeal – he told the truth!

Prevost told the police that his wife was most likely the responsible party for the downloads (something that his wife would agree to testify to), and that in a show of good faith, he would hire the services of a local computer expert, at his own expense,  to clean his computer of any infringing files. If Prevost thought that explaining away his responsibility and taking pre-emptive actions to remove any infringing content would lead to the end of the matter, he would be sadly mistaken.

Prevost was then summoned to appear in court over his audacity to ignore Hadopi. Prevost brought along his wife to testify to the fact that he had not done anything wrong, but having told the truth to the police earlier on, this was used against him by the court who opined that Prevost must have had prior knowledge of his wife’s illegal activities, and therefore was still responsible. Prevost was eventually fined 150 euros, a lower amount than the prosecutors had asked for due to the fact that Prevost has no criminal record.

All of this because his wife might have downloaded two Rihanna songs, and all to only result in a small fine that probably doesn’t even cover a tenth of the expense that Hadopi used to catch this criminal mastermind. And what benefit to rights holders? Who knows.

After the demise of HD DVD, everyone (including yours truly) thought that the next battle would be between Blu-ray and DVDs, and to an extent, that has been true. But the super quick way in which services like Netflix, VUDU, Amazon and iTunes have become ubiquitous among today’s connected multimedia devices suggests that the real battle is not between the new and old disc formats, but between having a disc format and, well, having no discs at all.

So when Fox, one of the biggest and earliest supporters of Blu-ray revealed plans to release purchasable digital downloads of their movies ahead of their Blu-ray and DVD releases, a few eyebrows were definitely raise. While early release digital downloads are not new in the strictest sense, they’ve mostly been one-offs – a release here, a release there. But the Fox initiative plans to bring the strategy forward for most of their A-listers, including the upcoming releases Prometheus and Abraham Lincoln: Vampire Hunter, and they’re doing it across as many devices as possible (supported platforms currently include Amazon, CinemaNow, iTunes, PlayStation, VUDU and Xbox Live).

And most importantly, all of these releases as part of Fox’s “Digital HD” initiative will be available on glorious HD (well, glorious by today’s download standards), thus directly competing with Blu-ray (although HT die-hards like myself might disagree, at least when talking about the quality of HD).

The immediate risk for Fox is that the digital downloads will cannibalize their disc sales, and also increase the risk of piracy. So Fox are either super confident about the DRM systems being used by its third party partners, or they’ve realised that pirates will pirate anyway, and that the pirated version would most likely already have been available long before the DRM-laden digital download version makes its official appearance.

August’s NPD figures, well what was made available anyway, showed nothing particularly alarming or surprising. The Xbox 360 continued to be the most popular console, with 193,000 units sold, down 37% compared to the same month last year.

The 193,000 was 48% of the entire home based console market, leaving 209,000 units between the PS3 and Wii. Given the most recent known results, this probably breaks down to something like 130,000 and 79,000 for the PS3 and Wii respectively, possibly even higher for the PS3 given that the proximity to the Wii U’s introduction.

Speaking of the Wii U, Apple weren’t the only ones to have launched a product this week, with Nintendo officially launching the $299 Wii U (with a more expensive “premium” version for $349, with more storage and accessories). Surprisingly, the rumours from last week about the release date was in fact correct: November 18, for North America.

What I found most interesting was the TVii announcement, which is set to turn the Wii U into a digital media hub in the same way that the PS3 and Xbox 360 already are. Supporting the latest digital streaming services such as Amazon, Netflix, Hulu, and also offering support for TiVo DVRs, the Wii U is an odd device in that it does use Blu-ray sized optical discs, but it appears the only way to play movies would be via digital streaming or downloads. The next evolution of the game console may very well see the disc drive removed, with games being distributed digitally too.

But we’d all need bigger bandwidth allowances, if not unlimited quotas, before that can become a reality. Personally speaking, I’ve used up half of my allowance last month viewing Amazon Prime streaming titles, to the point where I had to ration my usage towards the end of the cycle. An additional $30 to move up to the next bandwidth tier doesn’t seem economical to me, at the moment.

That’s it for this issue. See you in seven.