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.
At present the suit is just a few bands but is seeking class-action status, which could lead to a lot of artists claiming that they didn't get their rightful shares. Specific charges are that Sony has been passing on a mere 4.5 cents of its 70 cent take from selling a downloaded single. Claimants The Allman Brothers and Cheap Trick assert that they were due to get 30 cents.
The question of whether the higher rate is due depends on whether you think the download is more like a license for use (such as in a movie or TV show) - expensive - or more like a CD sale - cheap. The artists claim the former; Sony is claiming the latter.
At this point, those of you who have been following along should be sitting up like me and saying "Wait, isn't the point of the DRM on downloaded tunes precisely to enforce licensing terms?" And "Wait, isn't the consumer complaint about DRM that it restricts them from doing with downloaded music what they're allowed to do with CD tracks? Hmmmm. Seems to me that's pretty much de facto evidence that the download is indeed much more like the license for use than it is like the CD. If in court the plaintiffs use and the judge buys this reasoning it's going to be sweet irony.
Paul Alan Levy of the Public Citizen Litigation Group sent out a letter pointing his readers to an ongoing debate in Editor & Publisher on the topic of HR 683, the "Trademark Dilution Revision Act." Levy has, for some time, been trying to draw attention to provisions in this bill that will strip the defense of noncommercial use from defendants in trademark infringement cases.
Part of the point made by Levy is that people are commenting without reading the original bill, which I haven't done, so I'll refrain from adding my own commentary here. If you can wade through it and want to add something I'd appreciate that.
Another big thinker whom I respect even when I disagree with him: John Dvorak. His latest is a piece in PC Magazine in which he calls Internet Explorer an "albatross" and a "costly gaffe." The piece is more about business strategy than Copyfight issues, buit it touches on the part played by the Eolas patents and their impact on Microsoft's core business (which is selling Windows everywhere to everyone for everything). In essence, Dvorak argues that by building and then deeply tying IE into Windows, Microsoft opened itself up to a whole range of new attacks, including patent litigation.
I think Dvorak overstates his case when he claims that all of Microsoft's legal problems stem from IE in some way (anyone besides me remember Burst?) but he's not too far off.
Emma Bull's LJ/blog pointed me to a detailed description of book P&L from the point of view of a professional editor at Tor Books. Editors at Tor (and I imagine other houses) have to do a P&L in order to justify a decision to buy a book. The entry gives fictionalized examples, but based on real numbers.
Via boing-boing, a pointer to a snarky p2pnet piece on the RIAA's loss in its attempt to transfer legal responsibility for some alleged file-sharing activity from a mother to her daughter. Sadly, they lost on incompetence (failure to produce necessary documents) rather than on principle.
Searching with Google yesterday, I smiled at its logo, playfully reworked to look like a Joan Miró painting in honor of the Spanish artist's birthday. His family and Artist's Rights Society weren't smiling, the Mercury News reported, asking Google to remove the tribute mid-day. Google honored the request while saying that the logo did not infringe.
[President of Artists Rights Society Theodore] Feder said the society receives hundreds of requests each day from media organizations who are interested in reproducing a copyrighted work in some form. He said the authorization process is simple: all Google needed to do was send an e-mail asking permission to use the images.
"We would have asked the estate or the family, and they would have said yes or no," he said.
But fair use, as U.S. courts recognize it, eliminates the need to ask permission. Fair use saves us from the sanitized world where only authorized tributes or commentary are permitted. Moral rights, applied in many European countries but not the U.S., protect the "integrity" of artists' works -- but even that was hardly under threat.
No one would think from this logo, which linked to a Google search for "Joan Miró," that the artist (who died in 1983) endorsed Google; instead, many more might have been inspired, as I was, to click through to some of the originals artworks whose elements were re-mixed here. Copyright prevents someone from making Miró lithographs without permission, it doesn't and shouldn't prevent Google from honoring artists before they're dead 70 years.
Boing Boing links the clever short film [ airport ], made entirely from the common airport direction and instruction symbols.
Also cool is the AIGA page where the design association makes all the symbols available in EPS and GIF formats:
This system of 50 symbol signs was designed for use at the crossroads of modern life: in airports and other transportation hubs and at large international events. Produced through a collaboration between the AIGA and the U.S. Department of Transportation, they are an example of how public-minded designers can address a universal communication need.
These copyright-free symbols have become the standard for off-the-shelf symbols in the catalogues of U.S. sign companies.
Indeed, I'd suggest that the symbols' freedom from trademark and copyright claims has directly spurred their widespread adoption, which in turn has helped to make them more universally understood. Score one more for the commons.
At a book talk last night, Benkler outlined an economic history of information production. We're moving from the age of industrial information production to one of social information production. Ever-faster computers on our desks let us individually produce what would have taken a firm to organize just a decade ago. Ever-further networks let us share that with the world as cheaply as storing it for ourselves. This "social production" is distributed and motivated by social relationships rather than market signals.
As Benkler contextualizes this activity, it's not outside or in opposition to economics, but part of the economy. Commons production can be used by market-driven actors and by ideologically motivated purists. As it spreads, though, it enhances not only bottom lines but political freedom.
In an example near to my heart, Benkler showed the pressures e-voting vendor Diebold faced from the circulation of source code and internal emails. But in Benkler's story, the chief heroes weren't the lawyers wyho stepped up to defend against claims of copyright infringement -- after all, it took a year before the court ordered Diebold to pay our costs and fees -- but the distributed participants who published and kept the memos and code online in the face of legal threats. Even without the legal muscle of a New York Times, activists kept the story alive through social propagation.
Benkler's slide set ended at a moment of conflict. The new modes of social information production threaten established industries and so industral infogiants fight back with old weapons: legislation such as DMCA, monopoly power in non-neutral networks, patent thickets. Yet Benkler is an optimist. He's leaving future slides to be completed by the socially organized forces he celebrates. Here's the wiki!
Interesting to think about this suit in light of the Graham essay: Netflix and Blockbuster Online. Although the company has been around for years (since 1997 according to its site), Netflix is still by far junior to the long-established video chain. In the online business Netflix has something like a 3:1 subscriber advantage over Blockbuster's relatively new service.
So how do we read this suit? Graham would appear to side with Blockbuster, which claims the suit is not about intellectual property but instead about market competition and Netflix feeling the heat. I tend to think that's right, though it's bigger than that. Netflix has to realize that if Blockbuster Online looks to go into the black (predicted for next year) then it's going to be open season and everyone with an inventory of disks and a big name (like, say, the studio chains) will want to get into this business. Patents or no, that's going to cut severely into Netflix's profit margins. On the other hand, if they succesfully shoot the first trespasser the others will think twice before getting into the business.
A few days ago I ranted about thoughtless reportage - basically reproduction of press releases masqueradings as news. Jumping now to the far end of the spectrum I'd like to point to a thoughtful piece written by an intelligent man, even though I happen to disagree with many of his points.
To wit: Paul Graham's essay on "Are Software Patents Evil?" Graham is a hacker, entrepreneur, philosopher, and yes software patent holder. The essay derives from a talk he gave at Google on the topic. Graham's essay draws mostly from his point of view as adviser to several start-ups, all of whom care about patents. He reasons that patents aren't as much of a problem as people think, mostly because of what's in peoples' economic interests.
He asserts that people opposed to software patents must then be opposed to patents in general. I think this is false. Software has a number of properties not shared by physical processes and instantiations that make patents problematic. These include multiplicity of representations (source language, intermediate language, assembly language, etc) being equivalent, an extreme flexibility on the topic of what is process and what is the data operated on by that process, and so on. Software is neat and cool and (unlike some Copyfight readers) I think it is deserving of some intellectual property protection for authors who choose it. But I think patents are a bad tool for it, and they're being badly abused. Thus I oppose software patents but I'm fine with other uses of patents.
Graham attempts to address the issues of abysmal patent quality, noting that the intersection of software and government almost never turns out well. True, but not the whole story. Prior art, for example, is pathetic in software patents compared to other patents, and the USPTO is absolutely criminal in its failure to enforce prior art (and associated nonobviousness) requirements. Given the state of the law and practice, Graham argues that companies wishing to compete must apply for patents. He makes the analogy to a hockey team that doesn't check opponents - to which one might counter that if you skate fast enough you can avoid checks and not have to do them yourself. So much for the power of analogies, but Graham's point of view is held by quite a few folk.
Graham blames companies such as Amazon not for getting patents - they're simply maximizing their take from the current free-for-all system - but for enforcing silly patents. Though he doesn't use these terms, he describes the classic "sword" and "shield" approaches to patents. Unlike a trademark, a patent holder is not required to vigorously police any potentially violating activity. A patent holder can simply sit on the patent, using it as a "shield" to protect his own investment. Amazon used its "1 click" patent as a "sword" to attack Barnes & Noble for having a similar checkout system.
Now the question is: who actually sues whom over patents? Graham points out that much more often it's small companies suing larger ones. Suing startups is often a waste of resources because you can't get money out of them. If they're a threat you buy them, or at least buy the intellectual property you care about. Most startups are eager to strike licensing deals for their IP with big players and patents give them leverage in those negotiations. Or if you're big and mean you lock out the startup and its novel technology. A patent for something on a PC is worthless if you can't get that thing to run on a WIndows OS.
Graham also injects a heavy dose of fatalism (his own word) into the picture. Basically, once you're big enough to be successful and have money, you'll get sued whether or not you have patents. But you shouldn't worry about it, because it shows you're worth noticing. Being noticed means you're a candidate for buyout, which is the exit strategy for most startups. And if you're not going to be bought out then you need to go to the negotiating table with the existing big players, all of whom have big patent portfolios. Your portfolio in this view is table stakes - it gets you respect and a seat. What's actually in the portfolio isn't really that relevant; what's relevant is whether you can strike the kinds of mass cross-licensing deals that allow the big players to continue in business without having to worry about every clause of every patent in every competitor's portfolio.
I view this as a kind of insanity, much like the nuclear Mutually Assured Destruction phase of the late 20th century was a shared insanity. Armed truces aren't inherently stable and are always unfriendly to new entrants who can upset delicate balances of power. That's not healthy for software in general. Graham would probably agree, but he points out that for all the big press over certain cases, patents play a much smaller role in software than they do in other industries. For example, other industries regularly see large-scale lawsuits over patents well before products are released - think of the drug industry for example. That's exceedingly rare in software, and Graham gives some reasons.
First, the complexity of software renders most patents trivial by comparison. I may have a patent on an order checkout method, but that's only a tiny fraction of what's needed to write, run, maintain, enhance, and grow an online store. Second, software has a tradition of the young and fast displacing the old and wise. Patents are a way of respecting "how it was done before." Software startups take pride in DISrespecting that kind of thing. Third, the nature of the software business is that we inherently engineer around. Graham says that startups rarely try to take on big companies head-to-head - instead they try to engineer paradigm shifts in which the old way is irrelevant, and so are the patents that protect it.
Graham gives a lot of weight to "public" opinion, by which he means hacker opinion. Here I think he's being too optimistic. Microsoft has done a ton of evil things and not suffered much from public backlash, even when they were being flayed in the mainstream press. Sure, principled hackers will avoid evil companies and find better jobs elsewhere, but the globalization of software means that for every principled American hacker there are 10 or more overseas developers who may be less principled but can still produce damned fine code. And maybe cheaper, too.
Sure, he's talking to Google so he has to give at least a nod to the "don't be evil" principle, but I think he's more on the mark with earlier points.
Graham spends some time making a point I do agree with, which is that in the absence of patents (which force at least some kind of disclosure) people will attempti to protect things via secrecy, usually enforced with heavy-handed laws. He notes that this is partly what the Cartel are trying to do, and he's right. He also notes that this encourages some of the worst practices in business.
Graham concludes by stating that he (and his co-investors) advise startups to ignore patents. And they put their money where their mouths are.by taking personal financial risks in such startups. I have to respect that, no matter what else I might agree or disagree with him about.
A new movie is set to appear at the end of this month. Called Awesome... I Shot That (or Awesome... I Fuckin' Shot That - not sure which title is correct), the movie is an edited compilation directed by Adam Yauch, one of the Beastie Boys, of the returns from an experiment in audience participation.
I hate the inability of reporters to think critically, acting instead as echoing mouthpieces for whatever corporation, government, or entity has released the press clipping they're using in place of doing their actual job of, you know, reporting.
First up, the headline: "Hollywood studios sell movies on the Web". Actually, what they're selling is the ability to download and view a copy of the movie. So a better headline would be "Hollywood studios sell additional movie viewings via the Web." Let's call a spade a spade and refer to these as "tickets" because that's the model at work here.
Next, the subhead proclaims: A FIRST: MAJOR FILMS ARE AVAILABLE ONLINE TO OWN (caps in original). Leaving aside torrents and other illegal sharing, this ignores every other download scheme that has preceded it. It also carefully elides the key word "some." In fact a better phrasing would be "Hollywood makes some big-budget films available." I dispute the word "own" here because in fact what's being sold is some DRM-wrappered package of bits that you very clearly do NOT own. I own my DVDs. I can copy them, watch them on different players, resell them, et cetera. None of these things are do-able with these latest downloads. Thus "own" is... well, let's be charitable and say it's misleading.
Bravely we soldier forward to the body text where we read: "The films can't be burned onto a disc for viewing on a DVD player. Still, the move is seen as a step toward full digital distribution of movies over the Internet." This prompts any critical thinker above the age of 12 to say "by whom?" What person outside of the Cartel could possibly view this as a step forward? This is along the lines of stores that tell you they've reduced their hours, cut service, eliminated perks "for your benefit." Um, no.
Then we're told that these download tickts "will be priced similar to DVDs -- between $20 and $30." I don't know about you, but the last time I paid $30 for a DVD was quite some time ago. Most are going hot off the legal press for $12-18, depending on which discount outlet you frequent. Perhaps Mr. Gentile shops at more upscale boutiques for his DVDs, but more likely he didn't even bother to check one basic fact before filing his copy.
Finally, we get a quote in which Jim Ramo, chief executive at Movielink (the Cartel arm with exclusive license to sell these tickets) gets to gush rapturously that "Digital delivery hasn't arrived until the major studios allow home ownership, and now they have and now digital delivery is very real." Gag me with a sycophant. First off, digital delivery arrived in my home the day the cable company put in a digital box, about three years ago. Second, "allowing" home ownership makes it sound like the king has deigned to bestow his blessings on the populace. OK, sure, that's how they see the world, but it's still disgusting and shouldn't be mentioned in public. And finally, I think I already addressed the "ownership" lie. Letting a Cartel exec repeat the lie unchallenged doesn't make it true.
OK, I can't bear to continue the point-by-point dissection. The gist is that it's PC-only, some movies, doesn't include Disney at all, only gives a few of the films on the same day as DVD release - most are delayed 45 days - and is just overall a continuation of the sad sorry attempts by the Cartel to defend their antiquated business models. Oh, for a press reporter who would actually report THAT news.