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.
There's really not much in his entry that will surprise long-time Copyfight readers, though I like his quoting Ecclesiastes. He touches on themes of self discovery and fan fiction and much more - I won't spoil it because you should read the original. It's a brilliant set of ideas to give to young artists and almost every one of those ideas violates some DRM policy or some copyright restriction somewhere. The lesson - the overall lesson that gives the essay its title - is that learning to do art is transgressive. To the degree that we crank down the screws of control we are stifling art, and destroying the learning process of new and undiscovered creative people everywhere. Rip, remix, release and in the process find your own voice and individual contribution to the stream in which we all swim.
I've been avoiding writing about the LimeWire debacle, not least because of potential conflict of interest (*). As always, I speak for me and nobody else. Not Corante, not my company, and certainly not Gorton or LimeWire.
With that out of the way, let me just say: CNET, you're wrong. Your headline writer is wrong, and Greg Sandoval (whom I normally think better of) is wrong. Allow me to demonstrate.
the percentage of Internet users who download music via peer-to-peer services was at 9 percent in the fourth quarter of 2010, compared to 16 percent in the same period earlier in 2007
Well, that certainly seems significant. In the three years since LimeWire was shut down, fewer people admit to shar... wait, you mean LimeWire wasn't shut down three years ago? Err, no. It wasn't. It was shut down in October of 2010. So approximately 2.5 months worth of LimeWire absence was included in the period measured, out of a total of 36 months. For those bad at math, that's less than 10% of the time.
The claim, then, is that an event that happened in the last 3 months of a three year period somehow caused a retroactive drop? Either that violates causality as I understand it, or someone in the P2P industry has invented time travel and isn't sharing it. Or maybe, NPD is full of shit and Sandoval is guilty of just repeating what he's told rather than thinking for himself.
To cut NPD a small amount of slack here, they do admit that former LimeWire users are moving to other sharing networks. But really, this is just marketing puffery. NPD has no idea what caused the drop in self-reported file sharing over the past three years. Maybe it was that people thought it was an increasingly bad idea to admit that they used LimeWire to random marketers when there was a relentless stream of bad headlines about LimeWire.
I found the above two links in under 15 seconds of "research". Were I an actual paid reporter - as Sandoval purports to be - I would have done some actual research (which is different from "market research" puffery issued to please a paying client) and found out more about where the music sharing has gone. P2P networks still have significant traffic in copyrighted files. But YouTube and Twitter and other "Web 2.0" sites have picked up an enormous amount of the slack.
And were I an actual paid reporter, I might have dug into what I think is possibly the most interesting music-sharing story of 2011, which is that people aren't downloading music as much anymore, but they're sharing it more than ever. Streaming music, both legal and illegal, is finally taking off in a big-time way. People no longer feel as much need to have their own copy of an MP3 on their disks because they're confident they can be connected all the time to a network that will supply them the sounds they want when they want it. Between broadband penetration to homes and a proliferation of pocket devices (mostly calling themselves cell phones) that have the ability to stream low-bitrate MP3s or better, we are likely to see the local storage of media go the same way as email has gone in the past decade. And that will impact old markets like P2P networks far far more than yet another sharing company shut down by the Cartel.
I hope to be writing more about this in the rest of this year.
(*) In my day job I work for a company in which Mark Gorton is a major stakeholder. I've met him twice at company parties. He has no impact on my livelihood directly, but the case against LimeWire has affected all the companies in which Gorton is invested. So there's a potential conflict that readers should know about when they consider my writing.
The 20-page PDF is a hodgepodge of wishlist items an enforcement bureaucracy can dream up, and it has the unpleasant behavior of lumping together all forms of IP crime. On the one hand, when talking about the manufacture of counterfeit drugs and fraudulently marketing them, you're talking about a serious crime with actual bodily harm or even life-threatening implications. On the other hand, the document does nothing to distinguish this level of crime from the kinds of behavior that have come to be treated as major crimes in the Copyright Wars - sharing files, recording movies off theater screens, uploading promo copies to torrent sites, and so on.
For example, the report recommends "Increase the U.S. Sentencing Guideline range for repeat intellectual property offenders" without any effort to distinguish the types of offenders, or the impact of the offense. This would, presumably include someone who shared multiple songs over a P2P network. Or perhaps you can throw mom in jail for longer if both her son and her daughter share music with their friends, or rip lots of CDs to their iPods.
While the introduction to the document claims that "legislative changes [will] increase the effectiveness of U.S. enforcement efforts" what this comes to in plain English is the idea that if you make more things into crimes, and make the penalties for crimes bigger then you've somehow improved enforcement. I fail to see that linkage.
There are a few proposals to increase the range of law enforcement powers; for example, "Give law enforcement authority to seek a wiretap for criminal copyright and trademark offenses." This might be an effective move. Unfortunately they're placed at the same level as recommendations such as "Give DHS authority to share information about, and samples of, circumvention devices with rightholders post-seizure."
In case you can't parse that, what it says is that the government will give commercial entities access to things like crack programs. Not that a company couldn't get a crack program itself, but knowing that this crack program is effective against that DRM system is potentially a competitive commercial advantage for the company getting information from DHS, and has no relationship at all to DHS's enforcement efficiency.
Finally, tucked in at the end of the report is a recommendation to create a new copy right:
The Administration recommends that Congress create a right of public performance for sound recordings transmitted by over-the-air broadcast stations.
The language of the justification for this talks about "overseas royalties" but that's a smokescreen, in my opinion. The real goal here is helping the Cartel claw back money from broadcasters. They succeeded in doing this with Web radio about four years ago. Now they want to go after all broadcasters and Obama's Cartel-controlled DoJ is champing at the bit to help them out.
(h/t to David Post from Volokh Conspiracy again, for pointing me to this one.)
The case, with representation from Stanford's Center for Internet and Society, challenges a series of re-protections of works that were previously in the public domain, on the basis that such re-establishment of protection violates the First Amendment free speech rights.
The legal issue here is twofold: 1. What, if any, degree of First Amendment scrutiny is valid? One argument is that Eldred v. Ashcroft says that no First Amendment scrutiny is required - that all copyright extensions can pass muster without scrutiny. That, I think, is almost certainly wrong. The other side's argument is that any move that takes works out of the public domain is a speech restriction and thus subject to F.A. review.
That leads to the more interesting question: 2. What level of First Amendment scrutiny is to be applied, and do acts that place works back under copyright once they've gone into the public domain pass that level of scrutiny? This is a harder question to decide - I think we can all agree that changing the world such that you are no longer free, for example, to perform a particular work of art, is an impingement. If it's an impingement carried out by the Federal Government then I think it's pretty much a given that the First Amendment has to be taken into account. But even First Amendment guarantees are not absolute - there are a raft of exceptions carved out in various case laws.
Post writes, and I agree, that the present SCOTUS is unlikely to decide that placing public domain works back under copyright - whether by term extension or by international treaty as in this case - is sufficiently onerous as to rise to the level of prohibited restriction. But if they do agree that some level of First Amendment review is warranted that would be a small but important step forward. In particular, if Congress... I suppose I should say "when Congress" next decides to extend copyright terms, it would give us additional grounds on which to challenge such extensions
Under the heading "IP That Kills" I've visited this topic several times in the blog. Today we have two more entries on the sad roster of how we use intellectual property control regimes to kill people.
First, a story from ABC News on a sudden spike in the cost of preventing a premature birth. The company KV Pharmaceuticals just raised the price of a progesterone shot that has been successfully used for years to help women avoid premature birth, and the high risks to mother and child associated with this situation. The shot used to be USD 10 a pop; now it's $1,500 per dose, which comes to as much as $30,000 for a full term pregnancy. As you can imagine that's a substantial sum for someone who has low or no health insurance. Where ten bucks might be affordable for a lot of people, fifteen hundred out of pocket is not - even at reasonable income levels.
What makes this extra-special galling is that KV is not recouping any costs here. They didn't develop this treatment, didn't invest the hundreds of millions that some drug companies pour into the process of drug discovery and getting new treatments to market. No, instead the FDA just handed KV sole rights to produce the drug - that is, a legal government-protected monopoly. Patents give this sort of monopoly protection, presumably in return for the work done to invent a thing.
In this case, the work done to bring the shots to market was done back in the 1950s. Squibb used to make the shots but withdrew the product in 1999. Since then, availability has been spotty, but it's cheap and most women seem to have been able to get the supply they needed. The FDA's action was supposed to ensure a reliable supply of this life-saving medicine. Instead, their monopoly grant and KV's outright greed will end up killing people who cannot themselves, or whose insurance will not, pay the massive surcharges.
The issue Ng explores is government decision-making around the question of whether "a person's income should determine whether they live or die from something like HIV/AIDS." We're not talking about Canadians dying from HIV/AIDS - remember they have an excellent government-funded universal healthcare system. Instead, we're debating whether Canadian companies will be allowed to make and export cheaper generic versions of anti-HIV medications. This is exactly the issue I highlighted in my post from almost exactly a year ago, which itself pointed back almost exactly a year to the identical debate. Three years of the same battle being fought, and how many people have died?
Part of the reason we're still having this debate, and the heart of Ng's post, is that even though Canada tried to do the right thing - establish a regime under which the governmental monopoly grant of a patent could be modified - the resulting system was so complicated it was unusable. Canada's Access to Medicine Regime (CAMR) should provide a way out of the swamp - override or modify patent monopoly grants in cases of humanitarian need, without destroying the patent system entirely or capriciously. Unfortunately, it's too complicated and unworkable.
Which brings us back to C-393. It's what we software types call "a patch" meaning a code fix applied to make a system work the way it was intended. In this case the code being patched is the legal code, but the principle is the same. If C-393 becomes law no new abilities will be granted and nobody will get to do things that they couldn't under CAMR. According to Ng the target markets for these generics represent a "single digit percentage" of the drugs' sales, so the financial impact can be limited.
Unfortunately, it looks like C-393 isn't going to pass, either because of outright opposition or due to political maneuvering. And if it doesn't pass CAMR will continue to be bolluxed up and people will continue to die, needlessly.
People who told me I had nothing to worry about when Obama appointed a slew of Cartel lawyers to the DoJ should take some additional notice here. The US continues, under the guise of "trade agreements" to export its war on sharing, copying, and anything that challenges the Cartel's notion of control.
This round goes under the innocuous-sounding name of Trans Pacific Partnership (TPP) agreement. But what this treaty contains is far from innocuous - it's a blueprint for replicating every lock, control, takedown, and prohibition in US intellectual property law into the legal systems of countries around the Pacific rim. It attempts to turn ISPs into copyright cops, and to tell other countries what they can and cannot issue patents on. As Geist says: "The U.S. plan is everything it wanted in ACTA but didn't get."
This is nothing new, of course. An enormous amount of Renaissance art was sponsored by Medici and Borgia patrons; in China emperors sponsored artists at the same times as they were slaughtering peasants. The only thing different these days is that we get to criticize arts patrons while they're still alive and watch the artists squirm.
One interesting tidbit for those interested purely in the business side: according to the NPR story, even highly successful touring acts can get 10-20% of their revenue annually from these private shows, so it's not necessarily a trivial thing to say "just don't do private shows." This non-trivial amount makes it more challenging to argue that artists should retroactively return proceeds from events put on by scummy patrons. And while it may be a good-will or good-PR gesture to do so, it's not clear to me that the artists are any more responsible today than DaVinci was responsible back then.