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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.

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June 3, 2005

Whose Turn Is It to Call Off the Dogs?

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Derek Slater, in the midst of a thought-provoking discussion with Ernie Miller about the benefits of copyright-as-leaky-boat, asks a very interesting question:

[Can] we a) acknowledge the constructive role [for "leaky" copyright] while b) opposing widespread infringing filesharing? ...Perhaps a part of the reconciliation is a sense that, whatever may have been the meritorious effects of filesharing during Napster's birth, now competition in legitimate services can become good enough that it's time to call off the dogs.

If I understand him correctly, Derek is arguing that (1) copyright infringement can indeed be beneficial in the larger scheme of things, but (2) publicly justifying it on that basis means we suggest, wrongly, that there should be no cap on bad behavior, so the question becomes, in the case of filesharing, (3) hasn't infringement already done its "job"? Shouldn't we "call off the dogs"?

Ernie's answer, as I interpret it: "If the entertainment industry called off its own dogs, we wouldn't even be having this discussion."

One of the dogs is, of course, the DMCA. Another is the zero-tolerance attitude toward leaky-boat behavior (and I would add, the "me2me" tools that enable it):

Well, blatant copyright infringement was never cool. Yet, I don't think that were filesharing to go away, copyright would be in balance. ...Part of my argument in favor of the public/private distribution distinction as the focus of copyright law is that it provides a clear means for "leaks." If the RIAA keeps music prices too high, people will engage in more private distribution. When prices are reasonable, there will be less private distribution.

Similarly, I think that the DMCA shifts the balance for leaks in ways that are counterproductive.

I will continue to counsel against infringing public distribution via filesharing systems. Yet, I don't believe that there can be true reconciliation until copyright law is better balanced.

For some time now, Derek has been providing a series of detailed reviews of a variety of authorized services. I wonder if part of the goal has been to investigate whether the recording industry is ready to offer people a genuinely fair deal, to capitalize upon rather than crush new technology, and to move forward with digital age business models rather than stick its thumb in the dam.

I'd like to open the floor on this one. What do you think?

Comments (13) + TrackBacks (0) | Category: Big Thoughts


1. Seth Finkelstein on June 3, 2005 4:27 PM writes...

To be brief, I think it circles back to the basics, that copyright was intended as a *limited* monopoly, a *tradeoff* of private rights and public use. Part of the intellectual task of the fair-use side is establishing the social value of that balance, against the property-rights argument. Though, frankly, I'm not sure if anyone outside the choir is being convinced, it's certainly a worthy endeavor.

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2. Alexander Wehr on June 3, 2005 5:24 PM writes...

I personally think miller hit the nail on the head, but for the wrong reasons.

Copyright is a balance between two partie's private property rights.

Since the institution of the DMCA, we the people have been treated as if we no longer own what we buy. Combine this with recent rulings allowing clearly unreasonable terms and conditions regarding contract, such as "clickwrap" and "srinkwrap" agreements, and terms and conditions applied to the use of physical products such as XBOX game systems (regarding in-home modification) and it's plain that only the internet and p2p infringement have saved the general public from conditions comparable (if not worse) than stallinist russia.

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3. Crosbie Fitch on June 3, 2005 7:17 PM writes...

Copyright is just a weapon to be used by publisher against publisher. Everything else is an illusion.

Copyleft is the antidote to be wielded by the artist against the albatross they've been saddled with.

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4. Copyrighter on June 4, 2005 9:35 PM writes...

I think Derek makes the central, commonsense point of this whole debate: yes, copywrite legislation needs work but, no, it doesn't mean that it's right for people to illegally file-share. However, his ideas will never get any traction or respect because the greed of the record companies is matched against the anarchy of the Copyfighters and this will continue to be a shouting match of inane arguments. (see: Crosbie Fitch)

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5. Donna on June 5, 2005 11:47 AM writes...


Derek's ideas have plenty of traction. Otherwise we wouldn't be talking about them, no?

I'm here to advocate for copyright that spurs innovation (as per its constitutional purpose), not giving up copyright altogether. You appear to believe in copyright but also believe it needs work. I would argue we're on the same "side" in this debate. No need to shout.

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6. Ernest Miller on June 6, 2005 1:55 AM writes...

I disagree with Alexander. Copyright is a balance between exclusive rights of the copyright holder and the public. They don't have to be considered property rights, per se, and it is difficult to characterize many fair use rights as property rights.

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7. marek on June 6, 2005 4:38 AM writes...

Derek Slater's 'leaky boat' feels very similar to David Weinberger's 'leeway' - - which he discussed several years ago.

The question then becomes how to code the rights holders have and at the same time to systematise the flexibility of their application. Rules based systems make that hard to achieve; myopia among copyright holders makes it considetably harder.

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8. Crosbie Fitch on June 6, 2005 6:43 AM writes...

Who said anything about illegal file sharing?

The point of copyleft is to enable artists and their audiences to LEGALLY share their works.

Copyright is an encumbrance for artists that self-publish, and those who wish to exploit file-sharing systems as free distribution.

This is why copyleft license such as Creative Commons exist - to enable artists to dilute the unwanted copyright that inhibits their work from being shared.

Copyright is designed for large publishers with legal departments, and artists who would have their work published by them, not for lone, self-publishing artists.

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9. Copyrighter on June 6, 2005 10:01 PM writes...

Crosbie: C'mon, who you foolin'? If self-published artists truly want a P2P distribution mechanism, then why don't they create one that allows such while preventing distribution of the 'big, bad' entertainment industry's copyrighted content? It seems to me that all of the popular self-published artists could bootstrap a distribution system that was policed such that it couldn't include non-approved copyrighted material. What would be so bad about a Kazaa that just didn't include any copyrighted content?
Of course we know the answer: Nobody would use it.

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10. Crosbie Fitch on June 7, 2005 7:42 AM writes...

File-sharing is inevitable - it's a mechanism whose time has come, irrespective of who has been most motivated to use it.

BitTorrent is the best example of a self-publishing mechanism that intrinsically shares distribution costs amoung the audience.

Self-published artists now have the distribution mechanism they need (that publishers don't want them to have because of disintermediation - not infringement).

Would you have suggested that home-movie producers should R&D and manufacture their own VCRs to avoid accusations that they're riding the coat-tails of movie pirates?

We have good technology, let's put it to good use.

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11. Copyrighter on June 7, 2005 5:35 PM writes...

Crosbie Fitch on June 7, 2005 07:42 AM writes...

"File-sharing is inevitable - it's a mechanism whose time has come, irrespective of who has been most motivated to use it."

Okay, so I'm dealing the confucious of IP use. I don't know if mechanisms' times come and or go, but I do know this: if a mechanism becomes use is largely for illegal reasons, it will attract the attention of the law. So maybe you're right; if by 'time' you mean 'jail-time', I get it.

"BitTorrent is the best example of a self-publishing mechanism that intrinsically shares distribution costs amoung the audience."

So what? Illegal drugs have a low-cost distribution model as well; doesn't mean that they should be legal.

"Self-published artists now have the distribution mechanism they need (that publishers don't want them to have because of disintermediation - not infringement)."

Self-published artists want to maintain a n illegal distribution structure because they obtain an inordinate benefit. The copyrighted material draws the audience that self-published artists can't. This is actually a crux of the "help the shareware artist" argument -- give them a chance to freeload for exposure off of the entertainment industry's product. Why? Because their works can't generate enough audience on their own.

Your statement that the entertainment industry blocks file-sharing because of disintermediation fears is absurd on its face and demonstrates how little knowledge you have. The entertainment industry has been disintermediated from their customers for a long time now. The entertainment industry didn't own the record stores, movie chains, radio stations or cable channels that distribute content to their customers. And they certainly don't own Apple, RealNetworks, Napster, SnoCap, MovieLink or the others that they're allowing to distribute their content online. So, in fact, record companies are combating file-sharing because of infringement, not disintermediation.

"Would you have suggested that home-movie producers should R&D and manufacture their own VCRs to avoid accusations that they're riding the coat-tails of movie pirates?"

No. I would argue that given the rapid and continuous development of file-sharing technologies indicates that one could be created that blocks copyrighted material with minimal effort and cost. This new program could be distributed to self-publishing artists for free or minimal costs. Then the market could decide if self-published artists are worth investing the time to use such a system. But then such artists would lose the economic advantage of free-loading off of copyrighted content which attracts a much larger audience.

"We have good technology, let's put it to good use."

Enabling the theft of copyrighted content is not good use. If self-published artists want wide exposure and distribution, let them build the channel and invest the money to get it. It would take a talented file-sharing programmer a couple of days to create the tweaks. But of coures they don't do that. I wonder why.

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12. Crosbie Fitch on June 7, 2005 7:36 PM writes...

I think you've misjudged my audience, o anonymous 'copyrighter'.

I'm talking to those with acuity sufficient to avoid being beguiled by your trite contradiction.

Permalink to Comment

13. Copyrighter on June 8, 2005 11:44 AM writes...

Actually, it sounds like I've misjudged your thesaurus.

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