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.
Prof. Susan Crawford has an interesting post on empirical studies of primates and economic behavior (Chimps and Copyright). She speculates on what the studies might show and the consequences for the copyfight:
I had a fine time this past week listening to the chimp and brain studies in particular. (We law professors have terrible graphics.) This gets interesting when intangible "property" is being examined. Do humans have an instinct to uphold property, but perhaps not to uphold intellectual property [PDF] in the form of bits? Does this suggest that efforts to perfectly enforce tech mandates that hobble machines may be not only unconstitutional (because they give no opportunity for fair use) but also inhuman? [link in original]
The Inquirer has an interesting story about a Danish company that is providing internet porn subscriptions (after office hours use only) for its employees (Danes permit office p0rn):
Danish Broadcasting's DR Nordjylland reports that the company's director, Levi Nielsen, believes that access to p0rn is a natural fringe benefit for workers, like a free phone or a company car.
Perhaps, as usual, the marketing and distribution of porn is leading the way for the marketing and distribution of other media goods. I've always thought that providing music subscriptions as a fringe benefit to employees would make an awful lot of sense. In particular, it would make great sense if there were a voluntary blanket licensing agreement.
Tax benefits for the employer, large guaranteed income base for the copyright holders. Seems like a win-win to me. After all, the pornographers probably benefit from the Danish company's scheme, since the employees searching for porn were probably looking for free porn.
Caveat: Actually, I'm somewhat skeptical of the story, but who knows?
Rent seeking for copyright holders. They don't have to bear the costs of the lawsuit, the government does it for them.
Deflects bad publicity from copyright holders. People may feel that lawsuits brought by the government are more legitimate than lawsuits brought by a cartel.
Wiretapping. The government can use wiretaps to investigate copyright infringement - something that the RIAA can't do. This means that the government can go after downloaders and can more easily prove their case against uploaders.
Double jeopardy (well, not technically, but the principles are similar). The government gives the RIAA a much bigger stick to use. After the government has sued an infringer, the copyright holders can still bring another civil lawsuit for the same infringement for at least for 3 more years.
Writes Derek: "[It] is oversimplified and misleading to call...the current digital music standards situation 'the market at work.' Indeed, given how the DMCA steps into the market to limit competition, this is hardly just the market functioning 'normally.' It is a market born out of a particular legal framework that rejects the careful balancing we would typically employ, and the balance we had struck to allow reverse engineering and decryption for [interoperability]."
The Japanese tend to get cool tech far before it reaches the U.S. This time, though, they're previewing un-cool regulation. The Japan Times Online reports on confusion caused by the Japanese version of the broadcast flag, "a special transmission signal that allows only a single copy of the program to be made."
Measures implemented by NHK and private TV broadcasting companies to control the copying of digital television programs have drawn a flood of complaints from TV users, with some saying they have been deprived of certain editing freedoms. ...
Because programs that have been copied once cannot be duplicated or edited digitally, editing the programs via a personal computer has become impossible.
Broadcasters and copyright holders claim they're concerned about copyright violation, but this "remedy" sweeps much too broadly. The elderly people confused by why their expensive equipment no longer works as expected weren't likely trying to infringe copyright. Neither would a child who wanted to edit a news clip in which she appeared to a size to send to her parents, or a parent recording a cartoon to save for his kids.
Japan's apparently voluntary system offers us a preview of what the U.S. is in for in July 2005, when the FCC's "broadcast flag" mandate takes effect here. Buy now to get your fully user-configurable technology, or prepare to be surprised by what you can no longer do.
On a panel (PDF) a few weeks ago, I asked the head lawyer for Apple's iTunes Music Store whether Apple would, if it could, drop the FairPlay DRM from tracks purchased at the Music Store. He said "no." I was puzzled, because I assumed that the DRM obligation was imposed by the major labels on a grudging Apple.
Thanks to the recent Berkman Center report on the iTunes Music Store, I think I understand.
So you're Apple, and you make all your money selling iPods. You invest in the Music Store to make the iPod even more attractive, never intending to make much margin on the 99 cent downloads. But here's the problem -- you really don't want every other maker of portable digital music players to free-ride on your Music Store investment. After all, the Music Store is supposed to make the iPod more attractive than the competition.
Here's where FairPlay comes in. It's a great barrier to entry that keeps the iPod as the exclusive device for the Music Store. Competitors who dare to reverse engineer the protocols or otherwise support interoperability find themselves staring down the barrel of the DMCA.
All my original comments on how the law is likely to be unconstitutional are still valid, but I have some new issues with how the bill is being sold:
Sen. Kevin Murray, D-Culver City, said his legislation would enable law enforcement to use the addresses to track down people who violate copyright laws by illegally distributing copies of commercial films and recordings.
Yeah ... that is going to happen. If you are illicitly distributing copyrighted content you aren't about to go advertising the fact. Sen. Mickey MouseKevin Murray might as well introduce a law requiring "true name and addresses" on all notes from bank robbers. Why not be honest, Senator? This bill allows California law enforcement to go after copyright infringers when they otherwise could not and, additionally, allows the copyright industry an even bigger legal threat (jail time) to hold over filesharers.
As promised, more big news in the Golan v. Ashcroft case challenging Congress's restoration of copyrights in certain works that were in the public domain. The task before us now is to gather and develop facts about how people used the works affected by copyright restoration before Congress passed the URAA and how they are harmed by the inability to use these works now. To help us collect these stories, we've launched a wiki-style tool. Check out this new site built by Aaron Swartz and please share your story (if you have one) and spread the word (as appropriate) to others so they can share theirs.
The hearings were held by arch-conservative Rep. Lamar Smith (R - Tx), who chairs the Subcommittee on Courts, the Internet and Intellectual Property of the Judiciary Committee. Rep. Smith is normally a proponent of strong copyright laws, but finds the expansive view of copyright conflicts with his censorious desires here (Smith's Opening Statement): "Just as the author of a book should not be able to force me to read that book in any particular manner or order, a studio or director should also not be able to use the law to force me or my children to watch a movie in a particular way."
He almost sounds like a Copyfighter (even stopped clocks are right twice a day). Read more about the opposition...
May 19, 2004: The Court held a case management conference in Golan v. Ashcroft, the suit challenging the constitutionality of Congress's "restoring" copyright to certain works in the public domain. Lawyers at the Center for Internet & Society and Edward Lee from Moritz College of Law at Ohio State University are handling the case. Having just lost its motion to dismiss, the Government tried to stay discovery pending its proposed motion for summary judgment (same motion, different name? Why not just call it a motion for reconsideration?) Our local counsel, Carolyn Fairless and Hugh Gottschalk of Wheeler Trigg & Kennedy, succeeded in convincing the Magistrate Judge that discovery should go forward. We are looking at trial in about one year. Look for more news soon about this case.
[It] seems to me that this affects not only computer science students, but all students at Penn State. Why is it that we think that only computer science students ought to be able to experiment with what is one of the most pervasive technologies in university life? I don't get this, and I don't agree with it. The idea that education comes only in formal programs or courses is contrary to my way of thinking about education. Forget "holistic" approaches, that's not what I'm talking about. It's practical, not principle. Here we have a chance to let students, while they're in a place designed to feed their thirst for knowledge, actually experiment on their own, even if it's not their "major." Considering this, we need to broaden the field of our objection here.
Indeed. And I'd like to broaden the objection further still.
I was homeschooled for several years. Universities may be designed to feed the thirst for knowledge, but real learning happens everywhere -- even to people who aren't officially "students" or "researchers." In light of the restrictions imposed by the DMCA, Heverly's question becomes: "Why is it that we think that only computer science students people the Copyright Office deems worthy/appropriate/officially sanctioned ought to be able to experiment with what is one of the most pervasive technologies in university modern life?"
You know those terrible airport bookstores -- the ones with Danielle Steele bestsellers everywhere and not a drop to read? Ever try to find something in such a bookstore to keep you mentally stimulated for the full duration of a five-hour flight?
Now imagine what it would be like if the world was set up like an airport, with every choice -- even your reading materials -- dictated exclusively by the bottom line. Let's say you had to do your Master's thesis using books made available to you solely on the basis of whether or not someone, somewhere, was making a whole lot of money. These books would be your only tools of study, so you'd have to make do. Your thesis: "Trope Density Analysis of Steele's 'Passion Flower': Sexual Metaphors and Learning."
Okay, so that's completely ridiculous. So why do we see Penn State doing to computer-scientists-in-training precisely what airports do to us? In what universe of social values is it acceptable to restrict/inhibit/extinquish self-driven and truly field-tested learning -- the kind that Bill Gates did in his dorm room at Harvard, before he created an industry -- because we're worried about selling more Britney Spears CDs? Especially when we're not even close to sure that Bill is actually hurting Britney's sales?
Larry Lessig likes to talk about what he calls "permission culture." Often, he's referring to permission to use copyrighted materials. But Penn State school officials are forcing students to get a faculty member's permission to set up a server. For a computer researcher, this is tantamount to asking permission to learn. Meanwhile, because Penn State has partnered with Napster 2, everyone gets automatic access to Britney.
Please. What's wrong with this picture? And why can't Penn State see it?
The main spin of the study appears to be that, for those consumers who buy CDs, 3 out of 4 dentists... no wait, make that 1 out of 20 purchasers also pay to download music. In other words, if you buy music in stores, you may buy music online. (duh?)
More noteworthy, I think, is another set of results buried at the bottom of the press release:
According to NPD there were other notable differences in CD purchase behavior, depending on how consumers used specific online music services. CD buyers who also used an online music subscription service, such as Rhapsody, in the past twelve months purchased an average of 11 CDs last year; those who had paid for a music download from legal download site, like iTunes, purchased 10 CDs; those who used a P2P file-sharing site purchased eight CDs; and those who did not download or stream music from the Web bought six CDs.
If one assumes an average CD price of $12, then the average P2P user in their survey is paying the RIAA labels $96 per year for music they already can get for free. Who says you can't compete?
Maybe we should try to put the broadcast flag mandate in a more positive light, though. It's not really an anti-future rule it's just pro-past! And hey, everybody knows that the best thing for science and technology is a really strong, pro-past agenda. After all, physicists recently predicted that Moore's Law (which stipulates that the number of transistors on a microprocessor doubles every 18 months) will break down in 600 years, so we should probably start slowing down the future as soon as we can.
This just in: the California Institute of Technology and Loyola Law School are presenting a mock trial this Friday, May 21st, to play out a scenario in which a student creates a distributed computing application to crack DRM systems, leading to the criminal prosecution of everyone involved under the DMCA.
The trial will have many realistic touches: a real federal judge will hear the case, the prosecution will be advised by real federal prosecutors, and the defense by EFF 's Fred von Lohmann. Brad Hunt of the MPAA will provide expert testimony for the prosecution, while EFF Staff Technologist Seth Schoen will provide testimony for the defense.
Even cooler: the event is free and open to the public. If you're in the Los Angeles area and can get away from work or study mid-day, stop by and check it out.
Nearly three weeks ago a couple of posts on Copyfight noted that Governor Schwarzenegger's personal lawyers had sent a cease and desist letter to Bosley Bobbers, maker of fine bobble head dolls (including numerous political caricatures), for marketing a bobble head likeness of California's highest state official. Now, the New York Times reports that the Governor has not backed down and a lawsuit has been filed (Schwarzenegger Files Suit Against Bobblehead Maker). What part of the word "parody" does Governor Schwarzenegger not understand? One of the wonderful things about democracy is that we are able to ridicule and belittle our politicians. When politicians wield so much power it is a good thing to keep their egos somewhat in check with humorous renditions of their features. I see little reason why a 3D spring-mounted bust should receive less First Amendment protection than a political cartoon.
One common response to the RIAA's legal campaign against P2P uploaders is that filesharers will simply move to darknets where the RIAA's spies won't be able to follow. There is something to these arguments. The smaller a darknet, however, the more difficult it will be to find more obscure files. Thus, there will be growing pressure for the users to either opt for a legitimate download service which has convenient access, or to grow the darknet. Unfortunately, the bigger a darknet gets the less manageable it becomes and the easier it is to compromise.
Steve Linford of Spamhaus said spammers know this [that their "private" forums have been infiltrated] already but they don't know who amongst their number is working for the other side. In theory the members-only forums of these sites is accessible only by invitation and only to individuals who have a proven track record in spamming.
One would think that spammers would have a significant interest in protecting their networks from compromise. After all, from the report it sounds as if many spammers are engaging in many legally questionable tactics. Yet the "private" forums were still infiltrated. How much easier will large darknet filesharing networks be compromised?
Darknets for filesharing without fear of lawsuit can work, but only if they remain among small groups of friends known to each other. Once a darknet grows beyond a small group of people known to each other, they become ripe for infiltration. It is between the inconvenience and administrative costs of darknets and the current, excessive price of legitimate downloads that the P2P filesharing answer will be found.
I've always wondered how the heck the music industry has made so much money on ringtones (currently, a $3 billion market). Typical charges are $1-$3 for a 30-second snippet of a song that plays poorly on your phone while you can get a high quality version of the whole thing for $0.99 on iTunes. Well, as I suspected, that business model is coming under threat.
The Los Angeles company's $15 software, sold online, allows anyone with average computer skills to take an MP3 file or favorite CD track, trim it to create a 30-second ringtone and send it to the phone with the press of a button -- just like a text message.
Reactions to the software are mixed (which is an improvement from the likely reactions 5 years ago). Some music distibutors see the software as a marketing tool, others worry that it is cutting off a digital revenue stream just as it is taking off. Cell phone companies also have a mixed response with some blocking user-created ringtones while others don't worry about it much.
Despite the mixed response, I wonder if music distributors are really ready to forgo a potentially "massive" market. I wouldn't risk serious money that a lawsuit against the service won't eventually be launched.
UCLA law professor/Harvard law visiting professor Jerry Kang is the Larry Lessig of privacy, in that he was able very quickly and powerfully to communicate that there are extremes in the debate that result largely from the culture-born clash between "property talk" (U.S.-take on privacy) and "dignity talk" (Euro approach). He lifted the discussion out of the dreaded "tin foil hat" arena -- that is, beyond "paranoid freaks v. reasonable people" nonsense that stops people from truly engaging with the problem/issues at hand. He's one to learn from. (Check out Frank Field's comprehensive ILAW notes for a remarkably detailed transcript of his talk.)
Tell Me About It
Speaking of working to balance the debate, I want to thank ILAW attendee/NPR Deputy General Counsel Denise Leary for echoing/amplifying my call on Friday for real-world stories that reveal what the average guy on the street is losing because of the digital copyright crackdown. Jim Flowers told a personal story I'd like to hear in greater detail, about arguing successfully against an incredibly restrictive form of Internet filtering in schools by putting it in the plainest of terms -- something like, "Your children can't do research in school -- they're restricted to only 200 websites, and that's why this policy should be rejected." If you've got just such a simple-as-Valenti story about how today's copyright is frustrating your teaching/learning/creativity/ability to speak about an important issue online, do drop a comment below or send me an email to let me know.
It would great if everyone could just take a loyalty oath at the start and thus get beyond the endless querying about whether they believe in some sort of heretical radicalism. Something like:
"I am not now, nor have I ever been, a member of the Communist Party. I pledge allegiance to copyright, and to the intellectual property system for which it stands, one compensation, responsible, with property and profit for all."
That is, one deep issue is the conflict between the controls sought by the industry, and the effects those controls have in terms of inhibiting fair use in practice. This is a complicated problem. And it's a waste of time to go around "Are you some sort of Commie?" (paraphrased, not literal) all the time.
Matt of Matt Rolls a Hoover: "One thing I was surprised by was the tone of the questioning. I expected more information gathering, but the hearing sometimes had the feel of a court trial, with the Representative either asking a series of leading questions to build a case or essentially cross examining the witness in an attempt to discredit their arguments. I found myself wondering how useful that actually is."
I just called the office of my Representative, Xavier Becerra. The staff member's computer went down as he tried to look up the bill, so while it started up again I got a good 5-10 minutes in, talking to him about the DMCA and why it needs reform, how this is a consumer vs. industry issue, and why I want Becerra to support H.R. 107.
My complaint that I wasn't legally allowed to copy a DVD that I own just in case the original got scratched seemed to hit home the most. That really does sound absurd when you say it out loud. The staff member asked me what I did. I told him I'm a filmmaker, and that I hoped he understood that not everyone in the motion picture industry agrees with the extremist attitude of Jack Valenti and the MPAA, even though they claim to speak for the "industry."
Larry Lessig in the last session of the day on Friday here @ ILAW, echoing portions of his testimony on Tuesday Wednesday before the House Committee on Energy and Commerce in support of the DMCRA:
The point I've been trying to push about fair use, is that it's only a free as lawyers say it is. The fair use doctrine an extremely complicated doctrine. Lawyers advise extremely conservative behavior. [Richard] Posner and I had an argument about this. In my book I discussed how a clip from The Simpsons could be worth $10,000.
Posner said, "But this is clearly fair use." I said, "Stop talking about this as theory; go and see how it really works." To his credit, he did. Then he wrote this terrrific piece about how lawyers are shaping a very narrow view of fair use.
To my view, we waste far too much energy lionizing fair use when it doesn't do us much good.
What we need is not for the record industry to 'die' but rather to have the industry evolve. We still need methods of marketing and distributing music. P2P does a nice job of distribution but it has yet to demonstrate that it can market an unknown band on its own to the same scale that the RIAA can. P2P does a nice job of distribution but it has yet to demonstrate that it can market an unknown band on its own to the same scale that the RIAA can. [DJ Dangermouse is a notable exception, although one could argue that the coverage in the NYTimes, the New Yorker, Entertainment Weekly, and LA Times didn't hurt].
The bottom line is that as much as we hate the evil aspects of the recording industry, we mustn't discount the actual good it produces, both socially and economically. If P2P is really going to succeed in moving music forward to the next era, it's going to have to find substitutes for these benefits that the RIAA currently provides. If we are unable to bridge this gap, I fear losing the record labels will, in fact, hurt artists and music lovers.
An especially intriguing exchange, from the Q&A session with Charlie Nesson as moderator:
Nesson: You recognize that Terry's solution [compulsory licensing] depends on trust of the government. The same people who have bloated copyright almost beyond repair. In effect you conclude that's not the solution. Let's say an alternative compensation solution won't work. What's your solution now?
Larry: We're in the middle of a transition in the way people get access to content. The natural way now is to hoard. If the FCC doesn't screw it up, we could imagine that people in the future are persisently, ubiquitously connected. People would no longer need to be database managers. In that world the incentive to hoard goes away. Structure of access changes dramatically.
For political reasons I suggest a modification of Terry's proposal. Slightly higher chance the recording industry would be willing to take a step if they think it's part of a transition period. Here's the formula: set up an economic counsel to calculate loss. Write them a check, in exchange for giving up B-flag and DRM. We pay them off for ten years. Then see what's changed.
Nesson: But we're here, we're now. You have a series of critiques. If you had the opportunity, which of the threads should we pull back on to deal w/preserving the rule of law?
Larry: Small changes w/significant effect. Bill we proposed after Eldred case, for example: the Public Domain Enhancement Act. [...]
We also need to show Congress more people who are engaging in positive uses of work. Go out to schools and encourage extraordinarily creative work. Have a show for parents and ask the lawyers to give a critique.
Nesson: That's not funny. [Big laugh.]
Larry: Parents will look at this creativity and be amazed. Then have the lawyers go through and list the violations. By the end people would revolt.
Our problem is that when people think about copyright, they think about ripping off Britney Spears. They don't think about this. That's the challenge.
"Music wasn't born with the phonograph, nor will it die with peer-to-peer. The record companies might, though.
Both of these presentations [Terry Fisher's and Charlie Nesson's] are conservative with regard to the current record industries. The pushback is definitely about the question of why shouldn't the record companies just die? ...[Artists] have existed without record companies. Why should we be attracted to sustaining them with these conservative proposals?"
Nesson's response: "So you would favor eliminating the copyright clause altogether?"
An unexpected moment of alchemy occured during an ILAW session yesterday: a discussion about domain name conflicts suddenly became about something larger than squabbles over who owns what.
Jonathan Zittrain began the talk with a peculiar proposition: despite all the fuss over ICANN, Zittrain argued, it may be that domain names don't really matter that much. "Cyberlaw" itself is hard enough to defend as a topic; fellow legal scholars once told Larry Lessig that a legal subfield focusing on the "law of cyberspace" was about as silly one focusing on "the law of the horse."
"That was before the field self-identified," said Zittrain, "yet the puzzle remains, and nowhere is it better demonstrated than when discussing the domain name system. The thing is, it's hard to know why we should care."
Zittrain went on to explain step-by-step how the domain name system was created and originally "governed" by one man (Jon Postel); then one man and a government contractor (NSI); then by the new "private"-yet-government-annointed organization/corporation (ICANN) forged through unhappy/hostile compromise between the two.
A lot of people got very involved in ICANN, said Zittrain, because it seemed to represent something called "Internet governance." But does it? "The 'story of ICANN' gets harder and harder to tell," he said. "Is it about shuffling deck chairs on the Titanic -- or just a canoe?"
Explains Congressmen Rick Boucher (D-VA) and John Doolittle (R-CA) in an email to fellow representatives:
[C]omputer professors engaged in legitimate scientific research have been threatened with lawsuits ever since enactment of the Digital Millennium Copyright Act of 1998. We introduced H.R. 107 in part to ensure that scientists can engage in legitimate, important research can do so without having to first hire a lawyer.
When our bill has been enacted into law, it will no longer be a potential violation of Section 1201 of the DMCA:
* for a computer science professor to work with his class to improve scrambling technology designed to block terrorists from accessing sensitive first-responder communications; or
* for a computer science professor and his graduate students to test the encryption technology built into electronic voting machines to ensure that corrupt election law officers cannot alter the choices made by our constituents.
Few of us could have predicted the ways in which Section 1201 of the DMCA would be used to stifle legitimate scientific research that would benefit everyone in society. To help protect our homeland and to ensure the integrity of new electronic voting systems, we urge you to cosponsor H.R. 107.
Greetings from the Internet Law Program #6. Below are my rough notes for the opening session -- an introduction to what things regulate the Internet, using efforts to control speech (pornography) as a case study. The back-and-forth between Larry and JZ is, as usual, in equal parts amusing and illuminating.
The Second Circuit this week issued a very interesting decision reversing a district court's summary judgment and injunction enforcing a copyright on a compilation of poems. In 1996, Stuart Silverstein published a book of Dorothy Parker's previously uncollected poems, claiming copyright in his compilation. In 1999, Penguin Putnam Inc. published Dorothy Parker: Complete Poems, which includes 3 previously published collections of Mrs. Parker's poems plus a section of all but one of the poems in Silverstein's compilation, in chronological order rather than in the order in which Silverstein had arranged them in his book. The lower court granted summary judgment for Silverstein and enjoined sales of Penguin's book. The Second Circuit reversed, holding that Silverstein's copyright in the mere selection of the poems in his compilation was too narrow to support an injunction against publication of the Penguin book.
The burning question of the day: How did the hearings on the Digital Media Consumers' Rights Act (DMCRA) go? More specifically, to what degree does Congress appear willing to consider the public's side of the copyright equation?
The first report from the hearing seems to tell a variation of the same old story: advocates for the public interest cried "harm," the content industry responded with "theft," and progress got reacquainted with impasse. Closer inspection, however, reveals a tiny crack in the wall: Washington lobbyist and former congressman Allan Swift openly admitted to recording songs as gifts for friends -- "mixed tape" copying of the sort we can all still do using audio cassettes, only (gulp) using digital media. "I never made a straight duplicate of a record for anyone," said Swift. "I have never charged a person a penny. I am, like other American consumers, a profit center for these businesses. It's about time they treated us with a little respect."
Now, a second crack has splintered off from the first: Fred von Lohmann reports that the DMCRA has the critical support of Congressman Joe Barton (R-TX), chair of the House Energy and Commerce Committee. During the lunch reccess, Congressman Barton privately announced that he "intends to see the bill marked up (a prerequisite to approval), passed by the subcommittee, passed by the full committee, passed by the full House of Representatives, and ultimately signed into law by the President. This year."
The former video clerk turned superstar-filmmaker said that he had bought bootleg copies of old, hard-to-get films in New York to help recreate scenes in his blockbuster "Kill Bill", the second part of which is being released in many countries.
So, not only does Tarantino admit to benefiting from the fruits of infringement, but he is also admitting copying of scenes from various films. If he wasn't making so much money for Hollywood, the MPAA would certainly be sending the Deadly Viper Assassination Squad after him.
Tarantino would also be guilty of encouraging film piracy in China: "In the case of China, I'm glad they're pirating it. In a closed Communist country I'd rather be seen than not seen," he said.
A pair of UC BerkeleySIMS (School of Information and Management) students (Bill French and Parker Thompson) have, for their masters' degree project, developed new P2P music sharing software called, Trifecta. The subtitle of their project, "Creating P2P Software that Enables Fair Use," shows that this is not simply an engineering project, but a legal one as well (as befits students of Pam Samuelson). The software is described thus:
Trifecta allows users to lend and stream sound recordings to friends and other personal acquaintances, two uses that we maintain are fair because private, noncommercial sharing and performance are consistent with the rights afforded to consumers by the first sale doctrine and the right of private performance.
The actual design is more nuanced than that brief description, but the basic concept is that neither the people providing the software nor the people running the Trifecta client could be successfully sued by the copyright industry. Read the paper: Trifecta: Creating P2P Software that Enables Fair Use [PDF]. A download of the application is "coming soon."
I liked what I read in a brief skim of the paper. Whether the system actually provides full legal protection is subject to debate (I, of course, think it should be legal when used as intended). Of course, there would be ways to subvert the intention of the project, but why bother since much more open P2P systems are already out there?
This Wednesday, May 12th, marks the first time since the DMCA was enacted in 1998 that Congress will hold hearings on legislation to reform it.
The Digital Media Consumers' Rights Act, or DMCRA, has three important goals:
#1: Warning: You're About to Pay Full Price for a Hobbled CD
The DMCRA would require labels on copy-protected "CDs," letting us know that we can't actually use what we've purchased except under limited circumstances. That's right -- you get advance warning that you're paying the same price for less functionality.
#2: You Get to Reclaim Fair Uses of Digital Media That You Already Have in Analog Media
The DMC_R_A would put the Rights back in the DMCA. The bill amends the DMCA to allow you to circumvent copyright controls on digital media for legitimate purposes -- for example, to make the fair uses that copyright law ordinarily and traditionally allows.
#3: These Will Be Real, Not Phantom/Illusory Fair Use Rights
The DMCRA would affirmatively allow the creation/distribution of devices that circumvent copyright controls, when the devices have substantial non-infringing uses. That means inventors will be able to invent the next VCR or TiVo without asking Hollywood's permission first. And if a researcher has created a circumvention tool for the purposes of researching/testing web-filtering mechanisms, the researcher won't be limited to describing the controversial results. He or she could share the tool with the scholarly community.
Frankly, I'm glad that Lessig hasn't seen the argument put that way before. The image features a copyright logo that is clearly reminscent of the Nazi flag. If that was too subtle to make the point, the image also features a photo of a Nazi book burning. I assume that Lessig accidentally overlooked these aspects of the image and focused on the text.
I don't like currrent copyright law. I think current copyright law does a great disservice to culture. However, I don't think that the people on the other side of the argument are the cultural equivalent of Nazis. I also don't think the copyright debate needs to sink into another iteration of Godwin's Law.
Joe Gratz has a thoughtful response to my post criticizing Edward Rothstein's NYT review of Siva Vaidhyanathan's Anarchist in the Library; below, an especially eloquent bit:
Interpolation of existing culture into new works -- either by reference or by quotation -- is inevitable. It is nothing more than historical accident that some of this interpolation is legal and some of it is illegal. The lines of copyright law are not drawn categorically between "copying" and "not-copying"; they are drawn between expressions and ideas, between derivative works and transformative works, between duplication and explication.
Copyright law separates socially useful copying from socially harmful copying. The lines drawn by current law do not recognize the way the line between "good" copying and "bad" copying has moved over the past fifty years. But make no mistake -- the line has moved, and the law must change.
...or so argues Frank Field, who's written a not-to-be-missed response to Ernie's previous Copyfight post on the usefulness of digital rights management (DRM) to the entertainment industry, despite the fact that it doesn't work.
Snippet: "[DRM is not] necessarily supposed to work. But it is supposed to tell us that, if we mess with it, we're doing something wrong, and something bad might happen. The more that DRM gets used, and accepted, as an appropriate thing to include in products, the more inured we become to the notion that the thing it protects is property to be owned. And, by accepting it, we'll become less able to frame, much less pose, the question of whether the thing it's defending even should be owned -- and if so, by whom?"
How bizarre to see Edward Rothstein characterize both Siva Vaidhyanathan's Anarchist in the Library and Larry Lessig's Free Culture as exercises in "countercultural romance," arguing that the two give short shrift to "the hard-won solitary labors of the artist who doesn't pirate or sample."
There is no such artist. And Rothstein himself is the romantic.
The surface problem here is clashing definitions, with the roots in clashing ideologies. What is "piracy" and "sampling"? Rothstein's definition appears to derive from the discursive tradition of the courts -- a tradition that has enshrined in law (and our culture) the artist/author as romantic hero: the solitary genius who, mini-God-like, creates something new under the sun.
Except that there isn't anything new under the sun, and neither creativity nor authorship happens in a vacuum. It's the modern/post-modern conception of the author that recognizes this (though the truth is ancient). So it's all the more bizarre to see Rothstein call Vaidhyanathan and Lessig "anti-modernist," asserting that they "yearn for a preindustrial world in which an unbounded terrain of entertainment and folk art is somehow made freely available." You can almost hear the sneer in that sentence. Yet he goes on to praise the "real accomplishments" of the open source software movement -- profoundly derivative, collaborative authorship at its finest.
I'm not entirely sure what to make of the review as a whole. But I would advise those of you who agree with Rothstein about authorship to take a good, hard look at the works you admire, and challenge yourself to identify progenitors in voice, style, substance, form, etc. I'd be tremendously surprised if you did not come away with a more nuanced definition of "piracy," "sampling" and creativity than you may have had before.
Frank, Clancy and I will also be leading dinner discussions on Friday night, so if you're a Copyfight reader planning to attend, you'll have your choice of Copyfight-related themes. Check them out below -- we hope to see you there!
My dinner: What's the Next Step? Mapping Out Battle Strategy in the Fight for Semiotic Democracy
Today premieres the new Mary Kate and Ashley movie about the Manhattan misadventures of a pair of twins with dissimilar characters, New York Minute. According to the marketing campaign, hilarity ensues.
Every formulaic comedy needs an incompetent antagonist and New York Minute has two. There is the excellent Eugene Levy as a truant officer obsessed with catching one of the twins. Of interest to Copyfight readers, however, is the other adversary, a Chinese gangster. Why is this criminal after the twins? According to the review in the Hollywood Reporter, the gangster seeks a microchip the girls accidentally acquired (Review: New York Minute):
It's interesting to track what constitutes villainy in Hollywood movies today. Whereas once villains were bank robbers, drug dealers, white-slave traders, psychotic losers and abusive husbands, this movie's villains are intellectual property thieves as the microchip contains pirated music and movies.
What, then, is the motivation for the movie companies? Why are they expending their political capital on a measure which would not benefit them? If they don't think the BF is going to reduce the quantity or quality of piracy, then I don't see why they would be pushing it so hard.
These are pretty good questions. I don't believe that DRM can be successful in keeping widely distributed content off the filesharing networks. If I'm right, and content owners aren't simply dumb (they're not, or at least not entirely), then why do content owners continue to push DRM? Take Apple's iTunes ... please (ba-dump-bump). Everybody knows that every single song on iTunes is available for free via P2P. Every single one. Why then have DRM at all? It certainly isn't adding value. There has to be a good reason ... and there is. Read on for my answer ...
The New York Times reviews Jon Rouston's movie theater videos, shots of the screen, audience, and ambience at various opening-day movie showings. Critic's Notebook: When One Man's Video Art Is Another's Copyright Crime. The problem is that this art has been outlawed in many states. That's a side effect of the broad anti-camcorder statutes the MPAA has been pushing on many states, including California, despite the fact that its own insiders leak most movies to the public pre-release (study PDF).
It used to be the critics who'd tell us whether art was good or bad, original or imitative. Now it's the lawyers. As the reviewer comments on art's impoverished field:
It does not matter whether you think that Mr. Routson's work is good or bad art; it is quite good enough, in my view. It does matter that the no-camcorder laws may not do much to stem pirating while making it increasingly difficult for artists to do one of the things they do best: comment on the world around them.
The stakes in the fight are not making sure that [our opponents'] ideology eventually falls; rather it's all about figuring how to make sure that the damage that derives from the actions based upon the mistaken ideology are not so destructive as to take us all down with it.
Thus, we didn't win Eldred; but we did get Creative Commons. We didn't defeat the DMCA; but we got Chilling Effects. Software can be copyrighted, but we also have the GPL. Companies are learning how IP can be the instrument of a new enclosure movement (PDF), but groups are learning to leverage community to defend the intellectual commons. We're stuck with software and business method patents; but we keep showing just how destructive they are.
Ernest is right; our opponents are not (all) stupid people...Rather, they're acting within the confines of the ideologies that they believe explain the way the world works. They aren't evil or stupid; they're just confused and frustrated. The old methods aren't working, even though they *know* their methods are "right." In fact, they're in exactly the same boat that we are.
Those who have pushed for copyright maximization over the past decade or so have been able to do so unfettered by inconveniences like public deliberation or even serious attention.
The public interest side has until recently lacked a vocabulary, and agenda, and a bibliography. It also lacked a lobby and a vocal constituency. So the maximalists those who strive for a permission (and payment) culture have smiled through these radical years, knowing that nothing anyone says will disrupt their march toward complete privatization of culture.
Until now. Now maximalists are panicking. People everywhere object to their excesses and tactics. People are reading books that outline the values, the movement, and the strategies that might help free up the symbols, words, and ideas that we all rely on in a Democratic republic and a creative economy.
I know this because the maximalists are sinking to ad hominem attacks.
Then there's the situation with digital rights management, or DRM, these are the protections built into legally sold digital tunes to prevent infringement. But one problem of DRM has nothing to do with piracy. Because different online stores use different DRM schemes, sometimes legally downloaded songs won't work on all playback devices. For instance, the songs you buy from the iTunes store work on only one music player, the iPod, because Jobs refuses to license Apple's protection schemes to others. Can you imagine if the CD you bought from Tower Records only worked on your living-room stereo but not in your car? You'd think that the music labels would want to fix this, but according to Jobs, during the renegotiation the issue of compatibility never came up. Who's looking out for the consumer?
The free exchange of knowledge and information enabled by the public domain is being threatened by proposals in many international forums, including the World Intellectual Property Organization (WIPO). One of the major difficulties of protecting the public domain against these threats is that the positions of national representatives in these international forums are unknown, even to citizens of the country they represent. We want to change that.
This questionnaire is being used by volunteers to collect information about national positions on the proposed WIPO Broadcasting Treaty. The results you collect will be posted on the Web so that citizens in your country and around the world can act appropriately to protect the public domain.
The questionnaire makes it quite easy for volunteers to send mail or email queries to their governments, or even conduct an interview over the phone. Go to it!
Fordham law professor Sonia Katyal has an article up @ the SSRN Electronic Library that brings to mind a question I asked some months ago: Why do we tolerate in the name of copyright protection what we only unwillingly tolerate in the name of combating terrorism -- e.g., law that strips us of our right to privacy and due process?
The paper, entitled "The New Surveillance," describes in detail how the courts aid and abet new, extra-judicial regimes of private/corporate surveillance on the Internet -- and proposes, among other things, "greater judicial supervision of the DMCA" as an appropriate fix.
Last week, I advocated that the RIAA go on the offensive against commercial filesharing networks, such as Sharman Networks, in innovative ways that don't include more lawsuits, such as reverse engineering Sharman's interface and networking protocols and publishing them on the web. Additionally, I argued that the RIAA should provide legal support to projects that were being legally threatened by Sharman Networks for interfacing with Sharman's networks (One Way for the RIAA to Go on the Offensive).
The problem with this strategy is that the RIAA is threatened both by commercial and non-commercial file sharing activities. The RIAA's problem is not Sharman, it is file sharing in general.
For the RIAA to give money and support to non-commercial file sharing would be cutting their own throat. Even if they succeeded in driving Sharman and other commercial operations out of business, they would have done so by making it even easier for people to engage in illegal file sharing than it is now.
Ed Felten continues his series on the recent Speed Bump conference at the Berkman Center with a discussion of some guidelines for designing efficient government regulations to support stopgap security measures (Regulating Stopgap Security). After pointing out a series of suggestions for making such regulations as effective as possible without unduly burdening technological progress, Felten concludes:
By this point, alert readers will be thinking "This sounds like an argument against the broadcast flag." Indeed, the FCCs broadcast flag violates most of these rules: it mandates one technical approach (providing flexibility only within that approach), it creates compatibility barriers between compliant and non-compliant devices, and it shifts the long-term cost of compliance onto technology makers. How can the FCC have made this mistake? My guess is that they didn't, and still don't, realize that the broadcast flag is only a short-term stopgap.
Felten is certainly right that the broadcast flag violates all of his useful suggestions for regulators. He is mistaken, however, in believing that the FCC doesn't realize this "error." Read on...
My EFF colleague Cory Doctorow points to a disturbing/amusing interview with MPAA "spokesmonster" Jack Valenti in which Valenti tells an MIT engineer that the DMCA and broadcast flag are okay because you can't aim "public policy" at a mere "thousand" engineers, and gets flustered when confronted with the news that there are two million Linux users with no legal way to play legitimately purchased or rented DVDs using their systems:
TT: [You] said four years ago that people under Linux should use one of these licensed players that would be available soon. They're still not available -- it's been four years.
JV: Well why aren't they available? I don't know, because I don't make Linux machines.
Let me put it in my simple terms. If you take something that doesn't belong to you, that's wrong. Number two, if you design your own machine, you can't fuss at people, because you're one of just a few. How many Linux users are there?
TT: About two million.
JV: Well, I can't believe there's not any -- there must be a reason for... Let me find out about that. You bring up an interesting question -- I don't know the answer to that... Well, you're telling me a lot of things I don't know.