Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.
Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.
Contributory Cybersquatting Not Viable in Trademark
Or so seems to say the 9th Circuit in Petronas v. GoDaddy.com. Petronas sued GoDaddy for its role in registering and helping maintain two domain names that included the string "petronas" and that directed people to porn sites. Petronas alleged that the registrar contributed to the infringement on trademark that these domains created. I've read the cited statute and it doesn't seem to provide any cause of action for contributory parties, so I'm inclined to agree with the court here. But other courts may decide otherwise or this may get appealed and the 9th has a terrible track record when their decisions are subject to SCOTUS review.
Into this breach are moving several companies and a reader pointed me to one of them, called Stageit. The company acts as intermediary, helping small-scale performers publicize, sell virtual tickets for, and stream live performances to fans. Artists set their performance times and durations as well as viewing prices. Stageit further inserts itself into the exchange by having payments be in its own virtual currency and by putting out a virtual tip jar so people watching can tip the performers. It's an interesting re-creation of an old ritual; I'm old enough to remember putting dollar bills into snifters on pianos and milk crates set out by artists playing in bars where I drank.
Finally, Stageit provides the streaming platform (ETA: a comment from Evan Lowenstein, Stageit CEO, tells me this statement is incorrect and they do not use DRM) using its own DRM in an attempt to ensure that audiences don't record the broadcast. Artists get paid (eventually - Stageit takes a 10-day float) on an inverse sliding scale with Stageit taking 37% of the smallest earners (USD 25-50) down to 17% if your show brings in 50k or more. That, too, seems chintzy, as we generally think the better-earning artists would be able to higher fees.
It's also counter-intuitive to me, as Stageit must have nearly the same fixed costs for each show and their main variable cost has to be the bandwidth demands of casting larger shows. Why they're charging the more costly shows less is not spelled out on their site but I'd hazard a guess that it's a deliberate attempt to shape their customer base. They probably want to attract fewer shows that earn greater revenue rather than a larger number that each bring in less, possibly even to the point where a tiny show doesn't cover their costs in putting it on. Shades of shortening the long tail.
Interesting review in the New Yorker this week, covering Professor Anita Elberse's book Blockbusters. I have not read the book itself, but the review describes Elberse as a long-tail skeptic. In particular, the question is whether the long tail, as popularized by Chris Anderson, will supplant the blockbuster/swing-for-the-fences model of success in businesses such as books and movies. Elberse argues that although Net-based models enable more choices, "the vast majority of the revenue remains in the head" - that is, the big-name mega-million hits that characterized books, movies, records, etc for most of the last century. If anyone reads the book and has an opinion please let us know.
In the linked column, Lee seems to be surprised that academia is opposed to legislation that would weaken patent protection. This puts them in the company of aggressively misbehaving patent trolls, patent attorneys, and major patent holders in tech, biopharma and elsewhere. If Lee had just been reading Copyfight then this would not have surprised him as I've argued multiples times in the past that you cannot in the abstract differentiate the behavior of a research university and a patent troll.
In addition, Lee might do well to consider that if a patent "reform" proposal garners this broad a spectrum of opposition then perhaps it's not really a "reform" at all and could perhaps do with some further thinking-through. Lee seems to think that the very idea that universities make money off their patents is bad, a "tax on innovation." Perhaps that's so, but isn't that the entire point of patenting? The patent bargain is an exchange - disclose information in return for monopoly power, including the power to collect fees for use of the disclosed information.
Lee, like so many before him, is missing the point. You cannot from the outside differentiate a person driving to church from a person driving to commit a crime. Trying to outlaw driving because some people drive to commit crimes is entirely the wrong way to go about it. If we want to stop patent trolling (which I agree is a worthwhile goal) then we need to do so by means that differentiates the legitimate and intended use from illegitimate and unintended abuse.
And because it's been months, I'll just restate my two preferred starting points: limit functional claiming, and strengthen prior art requirements. Both would go a long way to removing the overbroad crap patents that are the favorite tools of the trolls.
Under that catchy title, PBS Digital's "The Idea Channel" poses the question - what makes pop music popular, and how should all this stuff be priced anyway. In a fast-paced ten minutes they focus on the role of radio, with its implicit payola and surprising reach, in making a musical act popular. A popular act's songs may appear in movies/commercials/etc but first they gotta get there and becoming "pop" is a black art at best.
I'm sure by now most of my readers have seen or at least heard of the advertisement by toymaker Goldieblox which used a parody of the Beastie Boys' "Girls". I can't link you to the original video because Goldieblox have taken it down, replacing it with one that uses different music. Their blog entry claims this is out of respect for Adam Yauch (MCA)'s last wishes that his music not be used for advertising.
That's noble but I smell marketing B.S. Goldieblox appear to have overplayed their hand here - though they got a lot of publicity they also generated a fair bit of controversy and ill-will. As the company is looking for additional financing that whiff of scandal is dangerous as it may scare off risk-averse investors.
That's amusing, but this is Copyfight so let's look at the legal issues involved. I like the summary Andy Baio posted yesterday, trying to put together what a layperson might understand about fair use and what it tells us about the misinformation that's swirling around. As Baio points out, fair use isn't even reliably well-defined in law; instead, it's a subjective judgment made in a courtroom based on a number of factors. Usually four factors are involved:
The purpose and character of the use
The nature of the work
The amount and substantiality of the portion used in relation to the work as a whole
The effect of the use on the market or potential market for the original work
This best standing precedent on fair use is Campbell vs Acuff-Rose Music, sometimes called "the 2 Live Crew case" because it concerned a song called "Pretty Woman" by them that was accused of infringing on Roy Orbison's classic "Oh Pretty Woman". In deciding that case unanimously, Justice Souter wrote that “the use of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence”. Thus even though SCOTUS applied the conventional four-part test of fair use, it ruled that an advertisement doesn't have the latitude that other works do, within the four-part test.
Salmon calls this the "cult of disruption" and fairly sneers at it, saying that Goldieblox appears to be "...daring the Beasties to rise to the bait and enjoin the fight" for the start-up's marketing plans. He calls Goldieblox "an entitled and well-lawyered Silicon Valley startup" and this is where I think he's got it right and the real problems arise. Goldieblox might well have won on the merits should this have gone to court, and I strongly agree with Baio when he calls for clearer directions, "helping draw the lines for what artists can or can't do." But I don't think Goldieblox ever cared about that. Merits or not, getting dragged into court would've been a serious hindrance to the company's marketing, financing, and growth plans and so they needed to avoid that.
The graph normalizes everything to 2012 dollars, which is great, but doesn't include best-fit trend lines, which is a shame. My eyeball estimate is that things overall got about 30% worse in the decade 1999-2010 but may have stabilized since then. It will be interesting to see what perennial complainers like Dave Lowery have to say about these data. Digital Music is certainly quick to argue that "...publishers of recorded media may lose for piracy, whereas artists may gain from piracy."
As I've said so many times before, I'm unconvinced and would like to see more. Yes, that's what my intuition says, but data should trump intuition.
Eight years on, Google has won summary judgment in its defense of Google Books. The judge in the case, Denny Chin, appears to have wholly accepted arguments made by Google and several amici that the function Google Books serve is sufficiently transformative that it is not a derivative work, and that provision of the contents (or parts of contents) of books digitally does not infringe on the rights of the books' authors. This decision will be appealed, I expect, but in general it clears the way for Google to expand its efforts to digitize and index more books.
I am of two minds about this. On the one hand, I think that digital scholarship is invaluable, and that the use of digitized text snippets to support scholarship is a new activity that deserves to be considered part of fair use. Copyright has created vast deserts of knowledge and mountains of orphaned works, which hurts everyone. On the other hand, I'm reluctant to hand the power over solving this problem to one commercial entity, which is showing itself increasingly hostile to the general good.
We've talked about how Amazon being a monopsony is a bad thing for e-books. Although many people write and (self)publish e-books, being forced to do so through Amazon's platform puts them at the mercy of Amazon's business purposes. Those business goals might or might not line up with what readers and writers want. Likewise, there are probably hundreds of millions of people who post videos to YouTube, but for them to reach their audience they have to go along with whatever policies Google chooses to put in place.
I don't think anyone ever claimed YouTube comments were a good system, but it seems to be pretty universally understood that the wholesale replacement of a bad system with another bad system has made things even worse. This is going to hurt a number of people who are trying to use YouTube channels for their businesses, and outside of boosting Google's ad revenue and maybe injecting some life into their flailing social network experiment I don't see what value it brings.
Sometimes being on press release lists gets me interesting things, as in this notice that just arrived to tell me that WikiLeaks has published the entire text of the sort-of-secret Trans-Pacific Partnership treaty. This TPP has been lurking below the waves like some fantasy-novel kraken, waiting to snare the unwary. The lengths to which the negotiating governments have gone to keep anyone from knowing what's in this treaty, or discussing/debating the wisdom of it, should give everyone pause. The treaty is massive, but I'm assuming that if you're going to read any of it, you might want to read the 95 page chapter on intellectual property.
That link should take you directly to Wikileaks. If that gets blocked or suppressed someone let me know where the mirror sites are and I'll link to them.
I've only skimmed the text so far and it's marked up so it's hard to be sure exactly what the final text will be when the Obama administration tries to ram this... err, excuse me "fast track" this through Congress. But it appears that the trade industry lobbyists who have had insider access to this all along have gotten a great deal of what they wanted. There are new restrictions on how patents are handled, including on drugs; new definitions for copyrightable materials; and more.
Of course, the biggest part of this is about enforcement and it appears that TPP will set up a new system of judgments (courts? tribunals?) to which signatory nations will be expected to adhere. It also appears that these enforcement procedures will allow secret evidence in direct contravention of current US legal standards.
And as many people have suspected, it appears that the Cartel are using TPP to try and establish the sorts of surveillance and enforcement regimes that they tried with SOPA/PIPA and for which they got smacked down hard.
Former U.S. Supreme Court Justice Louis Brandeis is credited with saying that "sunlight is the best disinfectant." One can only hope that exposing the extremely nasty workings of this secret protocol will allow us to clean up the mess.
For those not familiar with Iwinski, he is both the CEO of the game developer CD Projekt Red, and a long-time outspoken opponent of DRM in gaming. Projekt Red is probably best-known for creating the Witcher series of games. The original was a decent success in Europe; Witcher 2 was a multi-million seller both in the US and in the EU countries, and Projekt Red has already announced that the upcoming Witcher 3 title will ship with no publisher DRM. Game distributors such as Steam may add their standard DRM as that's out of the game publisher's control.
In the interview Iwinski accuses game publishers of creating a DRM "smokescreen" because they know it doesn't work but keep using it anyway, usually to the detriment of gamers. The beneficiaries of this smokescreen are said to be bosses and investors who want to see their stock prices go up, even if it pisses off the customers.
The two questions at hand, then, are "what about piracy" and "does the DRM actually work". The Witcher games have definitely been extensively illegally copied, but Iwinski believes this would happen anyway. The lack of DRM on Witcher 3, he predicts, will not result in any more illegal copying of the game. The correctness of this statement is hard to evaluate, since we don't have a controlled experiment to try. It's certainly true that Iwinski and Projekt Red are generating immense goodwill on the part of gamers - as well as raking in a lot of free publicity - with this stance. As a gamer myself I'm planning on buying this title but to be honest I'm planning to buy it because I played and enjoyed Witcher 2.
Therein lies the rub - taking a stance against DRM is only interesting if you're producing a product people like, care about, or want for whatever reason. If the game was terrible, nobody would bother to buy it or pirate it.
But on the other hand, bad DRM can definitely bog down a product, which seemed to be true of the latest Sim City. It got poor reviews, had heavy-handed DRM, and did poorly in the marketplace. So which factor contributed more? I doubt we can say, except to note that there is a relationship and it's not a simple one.
Speaking of the recent SIm CIty and its DRM, TotalBiscuit takes issue with Iwinski's assertion that all DRM is always a failure. Lately some games such as Sim City and Diablo 3 have used an "always online" requirement as part of their DRM strategy. These sorts of implementations are much harder to crack and that, TB asserts, is the point. DRM isn't deployed as a strategy to stop piracy, but rather as a delaying tactic. The theory is that if it takes long enough for a crack to appear then impatient gamers will give up waiting and buy the product. These people, who get called "casual pirates" sometime, have enough money that they can spend the USD 60 or whatever for a full-price top of the line title, but would rather not.
The hardcore pirates are just going to create the cracks or wait for them to come out; the casual pirates can be DRMed into becoming paying customers. At least, that's one approach. Or you could do something like Valve has done and just make it fantastically easy to get the game, put things on sale early and often, and use positive enticements - treat piracy as a service problem. I know which model I'd rather see win.
In order to get here, we first had Apple convince a jury that Samsung had infringed Apple patents. The jury returned a billion-dollar damages verdict, from which Judge Koh slashed nearly half, ruling that the jury had improperly figured the damages.
Now the two sides will present their cases to another jury, which will render a decision that will immediately be appealed. I mean, c'mon. You know it, I know it, Judge Koh knows it, and so do the lawyers involved, who have got to be laughing their asses off over the champagne-and-caviar meals that this case is buying them. In theory the jury will be deciding how much Apple is owed and how that award is based on the infringing products. In reality, this battle is a proxy for fights yet to come as both sides will be eager to prove IP points about their current product lines.
The latest update from 99% Invisible is out, and at the start they report on their Kickstarter progress. As I mentioned last time, their stretch goal was "provide healthcare for employees" - like we expect businesses to do - and apparently that goal got blown away. Interestingly, Roman Mars reports that many of the supporters upped their pledge in response to this goal. Obviously (public) radio listeners and Kickstarter backers are an atypical slice of the general population, but I think it bodes well if people buy into the idea that supporting new businesses means supporting all the things a new business needs to do. They are currently working on building out a larger base of supporters, as they have lined up a challenge goal whereby getting 10,000 backers at any level will get them a specific donation from a sponsor.
what’s the argument which says that Amazon has proved itself to be a mortal, existential threat to the publishing industry?
The picture he paints is one of Amazon as an agent of change, making it vastly easier for people to buy and read books. This ought to be good for publishers who, after all, should be wanting people to buy and read more books.
Salmon theorizes that the two biggest factors are Amazon's price aggressiveness and publishers' inherently conservative nature. Both are true, but I think he's missing several key pieces of his story.
For one thing, he notes that Amazon was taking losses on its aggressive price discounting of e-books, but fails to note that publishers only made profit on the retail prices for e-books, not the wholesale. You can argue about whether an e-book should cost sufficiently less to make than a physical book that a discounted price is in order, but it's still true that when Amazon cut its price the publishers took a hit that was out of their control.
Salmon further asserts that, "It’s not like Amazon has disintermediated publishers" - but in fact that's exactly what is happening. There's a massive explosion of self-publishing in the e-book world, driven in large part by programs such as Amazon's CreateSpace. These programs completely take publishers out of the loop, allowing any author to reach their audience not exactly directly but through the Amazon infrastructure, including the site and Kindle devices. If that's not disintermediation, I don't know what is.
Salmon may be looking at the wrong thing, perhaps comparing the dollars. Certainly big-name professional publishing is likely to be much more profitable than self-publishing for the vast majority of authors. But in terms of number of authors published and in terms of number of books produced, self-published e-books are racing past their physical counterparts.
Money aside, I think the biggest threat that Amazon poses to publishers is loss of control. As publishers lose control over pricing, over the selection of the next big thing, over schedules and distribution, etc. they find their existence threatened. If they're not in control of these things, what's the point of having a publisher anyway?
Well, we know that self-publishing is really hard work but that's not something immediately obvious and of course Amazon and others try to make it seem easy. If you can't see any value in publishing through a traditional publisher then you almost certainly can't see any reason to give that publisher a cut of your earnings. And if that idea gets firmly enough entrenched, those publishers are gone. So, yeah, Amazon's bad for publishers (too).
One of the questions I get asked when I talk about new business models is "What about listener support?" It's been the public radio and TV (NPR, PBS) mantra for decades and it seems pretty straightforward: hold a pledge drive, raise cash, use that cash to make more art, science, radio, documentary, entertainment, etc.goodness that we want.
Kickstarters are cool, and I'm really jazzed that one of my favorite earphone-fillers is going to be coming out more often, but we started with the notion of business model. So it was interesting to me to see that - as of this writing - the current stretch goal for the Kickstarter is "provide health-care premiums for the staff." Because if you're going to run a business you have to think about your people as well as your product and if you believe in listener funding a business then you might think this was a very smart move.
But it's also a risky one - people want to pay for creative product. I want the radio show, or CD, or concert or game or whatever it is that I'm backing with my dollars to be delivered to me. Healthcare, and other so-called overhead expenses of running a business, aren't directly translated into product delivered to me. But if we're serious about promoting new business models, then we need to start getting serious about what it really takes to run a business via these models.
This brings us to a paper (abstract here on SSRN) with the title "Fair Use, Girl Talk, and Digital Sampling" by W. Michael Schuster II. The paper purports to show that sales of the songs sampled by Girl Talk increased in the year after the album's release when compared to sales the year before. That's an important argument if true, as it would lend support to the thesis that sampling brings attention, which brings sales and therefore copyright regimes should be relaxed to allow more sampling.
Much as I'd like to see support for that hypothesis, I don't think this paper provides it. As Stewart Baker (another Girl Talk fan) blogged, "Schuster achieves his results by playing with the sample, dropping nine songs from a sample of about 200 because they completely wreck his argument".
Schuster argues that he is justified in dropping these songs from the data set because they were hits before Girl Talk used them and we know that hit songs tend to have (often steep) declines in sales after their popularity peak is gone. That's likely true, and Schuster is far from the first author to clean up a data set for publication. However, when your cleaning involves removing only those data points that end up refuting your conclusion the work becomes suspect.
We need more scholarship in this area, and not to draw strong conclusions from any single study.
Who Knew There Was An Institute of Scrap Recycling Industries?
And more relevantly to this blog, who knew that the Institute of Scrap Recycling Industries had a position on unlocking devices? I knew neither until I got a press release this morning from Mark Carpenter at ISRI. The release states that the organization - which includes a large number of electronics refurbishers as well as component recyclers - believes that allowing consumers to unlock their devices is an important step to keeping more electronics out of landfill. As a result their organization will join in the lobbying to get changes to US copyright laws that currently prohibit or restrict unlocking electronic devices. My opinion is that as we move toward an "Internet of things" this is going to become an increasingly important fight.
The next time some wise-guy tries to tell you how easy self-publishing is, just refer them to this here blog entry by Ursula Vernon, who has apparently spent far too many hours hassling with the idiotic mechanics of self-publishing files, formats, and software.
He discusses how publishers and content producers have a general truce, often through channels that help get agreements to use game footage and even early access keys. Why Wild Games Studio chose to break the truce and go after TB's critical video is still unclear. What is clear is he's having none of it, as he lays in to Wild Games for this incident and recounts several other rounds of shady behavior. The spat has also spilled onto the Steam forums, where the CEO of Wild Games has posted claims that "TotalBiscuit has no right to make revenues with our license" - claims that TB refutes in his video.
Details of the particular spat aside, the core question persists: is YouTube's notice-and-takedown system working, or is it being used to silence unwanted criticism? As I blogged last week, the details of any notification system is where the devil resides. It's clear that notification systems need to be designed with safeguards, as TB describes how he is able to rely on external assistance that's not available to smaller-scale critics. YouTube doesn't seem to be doing a lot itself to provide more active safeguards, and that's a potentially bigger problem.
Oh, and I have to mention that TB is donating any ad revenue generated from this video to the EFF.
I think the answer is "probably yes, but people will read it the way they want."
Specifically, EFF Deeplinks blog posted about piracydata.org. The item, written by Maira Sutton and Parker Higgins, gives us the "see, tolja so" point of view. Headlined "Movie Watchers Can't Get What They Want" it pushes the idea that a significant cause of people downloading/watching movie content through illegal means is because they don't have access to legal means of getting these movies.
In the past I've written sympathetically about this point of view: when people appear at your (virtual) door waving cash and saying "take our money, please" it's not generally a good business practice to turn them away. Not only do you lose that immediate cash, but you build an expectation in peoples' minds that they won't be able to buy things honestly so their only alternatives are illegal ones.
So Jerry Brito, Eli Dourado, and Matt Sherman have created a site that mashes up TorrentFreak data on BitTorrent activity with a service that checks for availability of content on legitimate streaming services. The result is a weekly chart with convenient checks and x's for Streaming, digital rental, and digital purchase. So far the chart has a lot of red marks, as popular films are not appearing on streaming services pretty much at all, and sporadically on the other two options. This leads Sutton and Higgins to finger-wag at Hollywood, and I have some sympathy for that. Rapid release of popular features on streaming services would likely capture some of this revenue stream.
But... and there's always a but, that's not the whole picture. For example, the latest data (ending Oct 14, 2013) is captioned, "only 46% of the most-pirated movies have been available legally in some digital form." That use of 'only' is interesting, because I could write a sentence using the same data that says, "Nearly half the most-pirated movies are available in some digital form." I suspect that is exactly how the Cartel would spin these data.
Furthermore, that spin exposes a salient fact: there's not just one revenue stream here. If people are pirating movies they could get in some digital form then it's worth asking why. Maybe it's because they've been conditioned to believe that they won't be able to get it legally so they don't bother to look. Maybe it's because they would rather stream than purchase. Maybe if a streaming option was available it would not capture the audience that is getting the movie over Bittorrent but instead would cannibalize the audience that is now purchasing digital copies.
Bottom line, the data on this chart are too weak and vague to tell us anything meaningful. Attempting to draw strong conclusions from it as the EFF seem to want to do is a mistake.
The policy statement asserts that "CC licenses are a patch, not a fix, for the problems of the copyright system" in part because only a tiny fraction of copyrighted works use the licenses. CC argues that no matter what, licensing can only go so far and what's really needed is "...to reform copyright law to strengthen users’ rights and expand the public domain."
Vollmer's post describes the origin of the policy statement in comments and questions from CC affiliates who wanted guidance on the organization's policies. And he notes that it is something of a change of course for CC itself, which has not previously been heavily involved in opposing moves to copyright maximalism.
It seems timely to remind readers that Creative Commons is a non-profit that operates because of the contributions people make to it. That constrains their ability to lobby or engage in political action in favor of any particular reform agenda and reminds us that if we want to see this work done it's incumbent on us to make our legislators and representatives aware of our views.
I got a PR notice that the French fashion/design house Louis Vuitton is in the process of doing a deal with Taobao, one of the largest open marketplace sites in China, to handle the appearance of counterfeit items. I can't read the original, but commenters have compared Taobao to both Amazon (with its individual sellers' marketplaces) and eBay. It's a very large marketplace, where small dealers find customers, and people sell and re-sell individually.
Such a large distributed environment makes IP policing a potential mess. Few entities have the resources to enforce trademarks and copyrights against tens of thousands of individuals, and unless you're as batshit crazy as the Cartel you don't want to engage in mass lawsuits. What Louis Vuitton seem to be heading toward looks more sane, though with caveats: a notice-and-takedown procedure. L.V. will no doubt be responsible for searching and scanning the postings and delivering notices to Taobao to take down sales listings. Taobao will in turn have to be responsible for telling users what has happened and may also be responsible for policing users (accounts) that get a bad reputation.
This is definitely a better approach than wholesale lawsuits but the devil of any such system is in the details. What right of appeal do individuals have? What safeguards are there against malicious use of the system - imagine rival sellers who abuse the notifications to hamper competitors. What sort of auditing will be conducted to ensure that Vuitton are taking proper care with sending notices? We've seen a multitude of abuses of such systems in the US and I imagine the same bad behaviors will be repeated here.
That said, the most interesting question to me is whether this sort of agreement represents a sea change in how the Chinese marketplace is regarded and treated. As I noted in the earlier post, there's a theory that marketplaces evolve. America has evolved from IP upstart to IP corporatist; China is widely regarded as having been an upstart but if the theory is right then at some point it, too, will begin to evolve. I guess we'll see.
Mike Schroeder at Aereo sent me another blurb. Usually he's announcing a new city they're marketing to, or another platform app - Android was added just this week. This time it appears that Judge Gorton issued a ruling in Hearst Stations v Aereo denying the Hearst empire's request to shut Aereo down while the trial ground on. A preliminary injunction would have been granted if the judge felt that Hearst was sufficiently likely to win at trial or if failing to do so would have caused a significant or irreparable harm. Aereo is far from in the clear, but they can continue to do business for now.
Among the latest tech proposals for content tracing is "forensic watermarking". This idea, which I discussed with SiDi, allows a production company to introduce subtle changes into media. These changes form a "fingerprint" - an identifying signature that lets someone with the right viewing technology tell the origin of a copy, since the watermark is carried from copy to copy.
Watermarking is not precisely DRM, in that it doesn't attempt to prevent the act of copying, but it is forensic in that it allows someone examining a copy to determine where the copy is generated from. Like DRM, watermarking can also be broken and removed, creating clean copies. This results in an increasing arms race where technologists attempt to embed harder-to-find and harder-to-remove watermarks, and other people work to crack these marks.
To the general end-user, a watermark has generally been harmless. Since it doesn't block action, you tend not to notice it. That may be changing. In the Register's deep dive on high-definition 4k watermarking it appears like the new standard will be used to block playing of content that doesn't have watermarks, or could even block playing of content that doesn't have a device-specific watermark. This would enable locking a specific copy of media to a specific player, possibly even preventing sharing within a household or across devices inside a consumer house.
In the next version, I hear there will be straps for your chair and comfortable eyelid-management capabilities.
The piece is mostly historical, tracing the rise of broadcast television and the birth of cable. For the most part, the blame is placed on the weird deal that first caused broadcast channels to be free over cable and later led cable and broadcasters to deals in which channel bundles were sold. They do note that there's still controversy over an issue I highlighted in January: what are the actual economics behind cable bundles? It's still clear someone is subsidizing someone, but it's hard to figure out which direction the arrow is pointing. There's a helpful chart on their site graphing out the cost-per-subscriber that cable companies pay to media companies, but that just tells you ESPN costs a lot more than Animal Planet, not whether your fat cable bill involves one subsidizing the other.
Those of us who are over 30 (or a certain age) remember wrangling the rabbit ears and how it was the younger generation who had cable and the older that stuck with broadcast. Now it seems like that process may be repeating itself, leading to the question asked by a youth from the podcast that inspired this post's title.
The Court might also be stepping into the patent troll dispute as it agreed to hear Highmark Inc. v. Allcare Health Management Systems, which questions whether attorney fee awards can be used to deter patent trolling. The other fee case (Octane Fitness v. Icon Health & Fitness Inc.) looks to be less headline-grabbing, but still important as it addresses issues of attorney fee awards in cases where a patent defense has been mounted.
The bill that FOMC and similar groups are supporting is Mel Watt’s "Free Market Royalty Act". Over on the other side, the National Association of Broadcasters is backing a competitive "Local Radio Freedom Act" (ain't it great how everyone gets to define freedom?) which they claim has a whole raft of sponsors. The NAB bill would prohibit the establishment of performance rights in over-the-air broadcasts. I'm sure you're all shocked to learn that broadcasters would like to continue getting their free ride.
Honestly I don't expect either bill to move anywhere, particularly in the current dysfunctional Congress. This is posturing - necessary but fruitless. What I expect to happen is more of what we're starting to see where big labels take big broadcasters by the collar and say "pay up or lose our music." Clear Channel appears to have gotten this kind of come-to-Jesus talk and decided to fork out some money. It can't take long for the Cartel to follow up with anyone and everyone else whom they figure they can squeeze for money.
This sort of solution only works well for that tiny fraction of musical artists who are represented by very big labels. Small labels and indie artists are going to get left out in the cold because they have no representation at these negotiations. And digital broadcasters are still going to find themselves having to fork out monies that their over-the-air competitors do not. The establishment of a clear set of legal performance rights would create a much more level playing field than a scattershot set of 1:1 corporate negotiations. But it ain't gonna happen.
Ferrel and Yoches seem to think that precedents of contributory infringement set against music-sharing services could be used against intermediary services that host 3D instruction files. I'm less certain, though perhaps the instruction files can be covered under copyright. The thesis that someone who creates an instruction file for making a copy of a protected object is aiding infringement might or might not stand up. Courts have long distinguished bomb making instructions from bomb-making.
Then there's the practical questions. Ferrel and Yoches admit that suing individual infringers is impractical. Even the Cartel, with its vast resources, could not make a reasonable go of mass-suits against consumers. Any IP holder less willing to lose vast sums is going to have a hell of a time taking action against people who do the actual printing, regardless of how secure their IP is. Many individual music copiers were sued because they (re)shared. I suspect that the vast majority of people who print objects are going to be making one-off personal copies. Finding these people is a non-starter.
Where I agree most with Ferrel and Yoches is where they note that inventors can "innovate rather than protect." This is how fashion works and that model might be usable for many objects that can be 3D printed at home.