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.
Jeff Price of Tunecore - a business based on helping individual artists release and sell digital music - notes that Lowery is ignoring how badly musicians had it, before. Price also disagrees with just about every factual number in Lowery's post, pointing out that while it's true that labels are making less money, more money is flowing to the artists. Sale for sale that's clearly true - what's less true is what the overall picture of the industry is now versus in the big-label era. There just aren't good independent data available for an apples-to-apples comparison.
Unfortunately, much of the response to Lowery has been of the "quit whining" variety. While I sort of sympathize with the idea that it's important not to shed too many tears for old dead businesses it's also important not to lose sight of the fact that what Lowery was "whining" about was the self-confessed theft of thousands of song copies, many of which could easily be paid for via a few clicks on iTunes or Bandcamp or the artists' Web sites. Jonathan Coulton is noted as responding about how great it is that so much more cool stuff is now available free. I agree, that's an awesome thing but it has to be the artists' choice.
I love free tracks. My disk is full of freebies I've gotten from performers I love. But it's also full of tracks I bought from them. That's the choice I get: pay for what they sell, or don't. Their choice is to sell, give away, or use some combination/new model. Again, I feel this is an important point that is getting ignored because of how Lowery constructed his response.
As several of the respondents note, simply being a musician is no guarantee of making even one thin dime. If you price your stuff wrong, or nobody likes your stuff, or whatever the factors are, then you're not going to make a living. Maybe you have to bust your hump for years until one day dawn breaks and money appears. Nobody owes you money because you're making the art you love. But I don't think that's really what Lowery was trying to say.
In specific, O'Dwyer ran a site that linked to online television programs. You know, the kinds of things you can find via a Google, Yahoo, or Bing search. But nevermind that, his site (which was never on US soil either) apparently violates the law in some way that those search engines don't. Mostly by being run by a poor individual rather than a large corporation, I'm guessing. As a result, O'Dwyer is now facing extradition to the US where he could be looking at a 10+ year sentence for - I keep having to say this because it's so unbelievable - doing nothing wrong.
Sign the petition if you haven't already (as of this writing they're closing on their initial 25,000 signature goal) and please if you live in the UK contact your representatives - anyone whose voice the Home Office might hear.
Back in 2006 I blogged briefly on the case of Mr Moore, who was being sued by the University of Alabama. The cause of action was Moore's use of the University's trademarked crimson-and-white color scheme and football player uniforms' appearances in his paintings. In an opinion a week or so ago, the Circuit upheld the trial judge's summary judgment in Moore's favor. In addition, the Circuit reviewed Lanham Act (trademark) claims and again found in Moore's favor. No word yet on whether the University will appeal, but having lost two rounds I have to wonder if they really want to keep spending money on this.
It is necessary to make three observations about this decision's scope. First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission's indecency policy or reconsider Pacifica at this time. Second, because the Court rules that Fox and ABC lacked notice at the time of their broadcasts that their material could be found actionably indecent under then-existing policies, the Court need not address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and subsequent adjudications. Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements and leaves courts free to review the current, or any modified, policy in light of its content and application.
That's disappointing, but not wholly unexpected. SCOTUS has declined to rule on the First Amendment issues of the FCC's policies before. I'm disappointed, as I believe that arbitrary restrictions on word choice - with or without prior notice - are the essence of government censorship that the First was designed to prevent and that the FCC remains an agency that is too far out of control. It needs to be reined in strongly, not invited politely to write a new ridiculous set of rules that will have to be litigated for another decade.
However, since the focus of this blog has shifted considerably in the last half-decade this will probably be my only post on this topic.
His initial target this time is Emily White, an intern at NPR's "All Songs Considered". Ms White noted that she has over 11,000 songs in her music library, yet has bought only 15 CDs in her life. The clear statement is that she acquired the vast majority of that music illegally. White is just the launching point, though, as Lowery continues to rant about the "Free Culture movement", which he believes is the propaganda arm of largely unnamed "technological and commercial interests."
If this is starting to sound like looney-up-the-creambun-and-jam stuff to you, then welcome to the club. This is really a shame, too, because Lowery continues to have really important and cogent points to make. It's just that they get lost in the froth sometimes. Let me focus on what I think are the important bits.
Lowery notes that the majority of record companies do in fact pay their artists. Despite numerous well-publicized examples of despicable behavior, it's generally true that buying major label-produced songs or CDs will cause artists to get money. I don't buy major label-released CDs myself, but that's for personal reasons. Whether the CD is major- or indie-label released, the artists (and their support crews, engineers, etc) will get some money from a purchase, whereas downloading 11,000 songs and not paying for any of them will cause no money to flow.
He also notes that the vast majority of artists are really poor. This is indisputable and a seriously bad situation - those of you who read this blog regularly have heard me banging on and on about how artists (of all sorts) need to get paid. However, the fact that musicians don't generally make a good living has been true for at least the last five decades and the advent of digital music hasn't changed it and shouldn't be blamed for it. Not to mention that the "critically acclaimed but marginally commercial artists" Lowery likes are that way because their labels dropped them like hot potatoes the instant their sales dropped below some accountant's decision point. Again, that's been true for a long time - if you want to blame someone for that, blame Reagan-era changes in depreciation tax credits. More or less overnight it became incredibly expensive for record, book, and other makers to keep inventories of things around. Either your album was a hit out of the gate or it got scrapped (or in the case of books, pulped). Again, all this predates digital music by a long time.
Lowery has obviously been affected by the (self-inflicted) deaths of musicians close to him. How that is connected to illegal downloading is left to the readers' imagination. Likewise, he has a great idea: pay $18/month and get the music you want. Except he isn't clear on how his theoretical model would work better than the other subscription services that have so far failed to gain significant traction (in part due to labels' unwillingness to license content), or how a new service would funnel more money back to musicians who aren't getting (he feels) enough from existing services like Spotify.
Lowery points out that services like Pandora and iTunes have gone a huge distance toward making music easily accessible. The user experience of these services is way the hell better than things that came before. So why isn't Emily White, and generally her peers, using this service? Lowery's answer has to do with cultural brainwashing and rants about Kim Dotcom, which is a shame because it's a really good question. I've been thinking for at least the last 6-8 years that if the user experience was good enough then people would prefer the higher quality and convenience. I make my living doing user experience and I believe deeply in the power of a good experience. Have I been deluding myself?
I might be wrong, but I won't find out whether or why by ranting about Google, Viacom, Kim Dotcom and pretty much everyone else on Lowery's hate list. I hope White will respond - it's hard to be called out by a major industry figure for something she seems to know she's done wrong. And, to his credit, Lowery is very kind toward her personally but his adamant angry stance may not invite the kind of response that would enlighten us.
Finally, Lowery cites unsourced figures again claiming that the music business is in terrible shape. The 90/10 rule has applied far longer than digital music has existed; if it's now the 99/1 rule instead of 90/10 you need to show why - again, see Drew Wilson. Lowery's experience isn't in question here - the question is why he's going so far off the deep end at points.
The book focuses on the film industry in the US, starting from its earliest days. It is mostly concerned with formative battles over intellectual property (primarily copyright) in the early and mid-20th century, devoting only the final chapter "Digital Hollywood" to the age of the Internet and key battles such as the DMCA/safe harbor/fair use exemptions. He also keeps his eye pretty strictly on the film industry, and its spawn into television and recorded movies. This is, then, a work largely of cultural and political history, and is extremely useful for anyone who wants to understand how we got to where we are.
Decherney makes a couple of key points throughout the book that stuck with me. First, "piracy" isn't new. Early film pioneers - including Edison - did things like copying others work in ways that would now be regarded as violations. "Piracy" is a loose term, then, that Hollywood has always used to mean "things being done by people we do not like who are not us." - even if those are things that Hollywood itself was doing just a few years ago. Once it's being done by Hollywood the act is no longer piracy and that term is then shifted and used to refer to new actions.
Two, he notes that Hollywood has long dreamed of a realm of total control. The major campaign within the last 20 years to turn the "play" button into a "pay" button really originates over a century ago. Through litigation, Congressional lobbying, and business decisions, Hollywood has tried to steer itself into this sort of cultural/legal monopoly. With the DMCA they have gotten closer than ever before to this goal but they've done so only by handing massive amounts of control to third parties - generally tech companies like Apple - who have used monopolistic legislation like the DMCA to attain their own total control.
Decherney also does a good job of showing how much of what has gone on has been a combination of careful planning, incoherent response, and internal division. For example, the infamous Betamax case was not pursued by Hollywood monolithically. Hollywood has simultaneously pursued court decisions and ignored them. And different studios (and the auteurs with whom they must deal and often fight) have responded differently to fringe copyright activity such as fan films, parodies, and homages. The result has been to create a climate of uncertainty in which new gatekeepers such as film-festival promoters and insurance companies have been forced to play guessing games about what will or will not be treated as infringing and subject to lawsuits or cease-and-desist orders. With uncertainty came self-restriction, a regime that new mass-creation technologies like YouTube has exploded, to Hollywood's deep panic.
I have two minor quibbles with the book, which I hope Prof Decherney will change in a future edition. First, he does 'the professor thing' too often. A paragraph will begin with a question, which the body of the paragraph then answers. This comes across as pedantic. I think Decherney's prose is interesting enough to stand on its own and he could remove the rhetorical questions entirely.
Second, the book is extensively footnoted, but the notes are purely reference links. Reading them is as dry as reading the notes on a court decision. I love the little minutiae that some authors put into footnotes. There's a wealth of trivia, anecdote, and digression that can't be fit into a coherent main-text narrative but still makes for good reading. I hope Decherney spices up his future end-notes with some of the good bits that didn't make it into the main text.
In conclusion: recommended reading for good context and understanding.
I talk a lot about the need for new business models that are realistic and sustainable in the digital-centric 21st century. Sadly, we're also in need of some serious updating of government policies and practices, too. David Kravets had a nice piece on WIRED yesterday profiling Judge Sofaer, a man of long judicial and prosecutorial experience. Sofaer has joined EFF in fighting the US DOJ's seizure of innocent peoples' content just because that content happened to be hosted on a Megaupload server. In the piece Sofaer notes that there are reasonable, well-tested procedures for handling things like seizures and criminal evidence that simply aren't being applied to digital cases.
An "epic and surreal legal battle" is slowly taking shape out there in IP-land. If you are as ancient as I am, you remember days before photocopiers made it possible to reproduce any book or printed page quickly, cheaply, and en masse. When photocopiers got cheap enough and widely enough distributed the inevitable happened - people photocopied their butts. Wait, no. I mean, yes, they did that, but they also did stuff that had IP owners tearing their hair out in frustration. Nobody photocopies novels and resells them, but teachers would put together course packets containing hundreds of pages of material photocopied from a variety of sources.
At first, nobody thought about paying for all that copying, even though getting the important chapters for free in your course packet meant you didn't then have to buy the book. There was a time when mass photocopying was seen as the worst threat to publishing. Eventually, things settled out. Universities and others worked out licensing deals. Students had to pay for course packets and some of that money flowed back to publishers who didn't get as much as if everyone had to buy every book, but they did get something. Copying went from being an unholy terror to an understood devil we live with.
Fast forward to the 21st century, and along comes Makerbot, and a hundred more like them. These home machines let you print new objects, some of which didn't exist before. Others, depending on the digital models you load in, can be exact replicas of existing objects that are covered by things like patents. This is almost certain to engender a nightmare similar to that of the early photocopy machines, particularly as new versions of 3-D manufacturing machines are going to have scanners that let you start with an object and generate a copyable model file on the spot. Three-D printing will become the new photocopying.
As Clive Thompson describes in the above-linked article for WIRED, the problem right now isn't so much the machines: it's that people create and share their design files. Those files allow one person to empower other people to make many copies. Even though those copies may be used only for individual purposes, the people whose objects are being copied claim infringement. If I can print up my own Warhammer figures for cheap, why would I buy the Games Workshop originals? You can see why GW and others want this stopped.
The question, then, is who is at fault for infringement. The answer is not obvious and as with all new technologies I expect this one to be thrashed out in court. One possible target would be the person who created the file. Another would be the sites (e.g. 3D Model Sharing) where the files are posted. In the case Thompson describes, the site Thingiverse received a DMCA takedown notice. I'd bet you could make a good case that this was an inappropriate use of the DMCA.
The problem is that the file isn't itself a copy of anything. It's an original work. Posting a design file isn't the same as posting a track I ripped from a CD. The file, if used in a certain way, can produce an infringing object, but I cannot see how Games Workshop could claim patent protection for that file. I'm reminded of the many faces of DeCSS where the movie industry tried to put a stop to every possible way that the DeCSS code could be expressed. Model files are code and code is infinitely malleable. Maybe GW claims some kind of contributory copyright infringement and that's the basis of their DMCA notice, but that's new legal territory as far as I know.
If you accept that the file (code) itself isn't a violation of the object IP owner's trademarks, patents, or copyrights then you're left with two options: go after the machines or the end users. Going after the machines is a losing plan; it would essentially recapitulate the Betamax argument and it would be trivially easy to show that these machines have substantial non-infringing uses. Finally, you don't want to be in the business of going after the end users, unless you're batshit insane like the Cartel and think that suing your customers is a winning business model. Given that most people are not that level of insane, I think we're going to see a continued targeting of (easily intimidated) model-makers and reluctant cooperation by the sites that post the files. Nobody wants to be the next Megaupload test case.
This may discourage or slow the growth of some sites, but since there's already model-sharing on the P2P networks I don't think it's likely to have a huge impact. There needs to be some kind of grand agreement and that's not likely to come soon. Thus, court cases.
(Full disclosure: I'm friends with Sindrian Arts, a company that is trying to bring industrial-scale machinery (a CNC router) down to personal size and price. This machine, like Makerbot and others, could be involved in this brewing legal battle.)
C-11, which I last mentioned here about three months ago, is Canada's attempt at a comprehensive copyright enforcement regime. And by "comprehensive" I mean "is the vehicle into which the Canadian arm of the Cartel is attempting to stuff every insane lock, restriction, punitive enforcement measure, and penalty they can dream up."
Specifically, one Harry Page, the CEO of a company called UBM TechInsights, testified against the bill. Mr Page makes his living (among other things) helping people enforce their copyfights. His firm uses various forensic techniques that can be applied by people who want to determine if their material has been used by others. But C-11, as presently written, has measures that would prevent that. So all a thief would have to do is lock up stolen content behind some kind of DRM or encryption and presto he'd be safe. Great work, guys.
Geist notes that Page is hardly the first one to raise these objections, or to propose ways around it. "[B]usinesses, consumer groups, [and] education [professionals]" have all raised similar objections and been ignored. There's a word for laws like C-11, and the FCC doesn't like it when you say that word.
They delicately refer to her as Ms Palmer (I'm trying to imagine The Economist printing 'amanda fucking palmer' as she signs herself) and warn their readers about her "exuberant nudity" and "salty" language in her updates. But for all the properness, the blog notes that this was not off-the-cuff; it was three years in the planning and followed three self-releases and a smaller Kickstarter last year, as well as a detailed post-mortem with the Kickstarter team.
I noted yesterday that it's unlikely someone else would succeed by trying to imitate Palmer - you can't authentically be another person or use another's style. It's easy to look from the outside at Palmer's disjointed writing and the frenetic enthusiasm that are part of her signature style and mistake that for a lack of good sense. But when it comes down to business fundamentals: plan, experiment, analyze, adjust, then launch - that's a formula anyone can follow.
The particular property/behavior in question is the now-AOL-owned Huffington Post. The HuffPo is sometimes criticized for being "just" an aggregator, but regardless it's widely understood that HuffPo has had problems with people critiquing how much of a story it has used. As techdirt points out, in the past the HuffPo has taken all of an article it is aggregating and added its own value, claiming that the result is fair use.
Well and good, so why are AOL's lawyers now hitting a small-town blogger with cease-and-desist letters for that blogger doing pretty much exactly (to AOL's hyperlocal Patch) what HuffPo did to others? C'mon, guys either it's fair use or it isn't. You can't both claim fair use when you're doing it to other people, and infringement when others do it to you (well, unless you're Disney and Hollywood studios in general, a matter in the queue for next week).
Sisario talks about Palmer's "theatrical gestures", which I think is slightly missing the point, and her intense and uniquely personal broadband engagement with her fans, which I think is much more relevant. AFP, in her Kickstarter updates, has noted that other musicians who want to do this sort of thing will have to find their own way. Trying to "be" or "be like" Amanda Palmer isn't likely to work, simply because she has a certain personality and a certain style that most people don't have. Trying to fake it won't buy you anything because you're not (supposed to be) about faking it or passing as something else.
Sisario talks about Palmer's "experienced managers and publicists" as if that was somehow a mark against her authenticity. But Palmer's own Kickstarter Q&A pointed out that someone who wants a successful project of this sort needs to have it planned out. Knowing ahead of time what updates you want to do, what bonuses you can add, how to get the campaign noticed, etc are all vital to success.
My view is still that there's a business opportunity here, helping artists who aren't as Net-/social-media savvy as Palmer put together a successful sponsorship campaign, and possibly let the artist have a life, make art (or music), and get the money they need. How to do that without losing the personal, deep-connected authenticity that motivates a group like Palmer's fans is a question yet to be answered.
As I noted in the earlier blog post about Scalzi's DRM-free Redshirts, one of the important things that needs to happen is simple communication between the creative side and the consumer side. Doctorow's post argues that trade publishers should be diving into that conversation with the news that 'Hey, we're good guys here!'
What Doctorow points out are important differences in how trade publishers, particularly fiction, treat their authors versus how recording companies or movie studios treat their creative types. That difference matters, if we're going to have this conversation I keep banging on about. Not all corporations are alike, and not all copyright holders act like the Cartel does.
Over on his Whatever blog, John Scalzi posted about "The DRM Thing and Redshirts". Redshirts is his latest novel, for which he's just embarked on the book tour and which has just gone out in e-book form. (Cover image shamelessly nicked from his site.) Although the Doherty imprints, including Tor books, are not scheduled to be DRM-free until the end of July Scalzi asked for his book to be DRM-free from now and so it is.
Scalzi is quite active on the nets and pretty tech-savvy, so he understands that DRM itself isn't a barrier to anyone but the casual readers. He also understands that a great deal can get done between a creator and their fans by simple communication, so he put up his four main points for how he'd like things to go. As he sees it, personal uses are great; putting it out into the wilds of the Internet is probably bad karma. He notes that there's a big free sample (5 chapters) already posted so people can try before buying. Above all, remember that this e-book was written by a person who's trying to make his living and support his family by writing books like this.
If you like what he does and want him to do more, then guidelines like these are probably the best way to get what you want. This is one reason that sponsor-type models have intuitive appeal to me: it's trivially easy for me to acquire a set of bits on my electronic devices, but it's remarkably hard to inspire, encourage, and support the kinds of creation that lead me to want those bits.
Information wants to be free. Information also wants to be expensive. Information wants to be free because it has become so cheap to distribute, copy, and recombine - too cheap to meter. It wants to be expensive because it can be immeasurably valuable to the recipient. That tension will not go away. It leads to endless wrenching debate about price, copyright, 'intellectual property', the moral rightness of casual distribution, because each round of new devices makes the tension worse, not better.
I've been enjoying my subscription to Justia's Intellectual Property Summaries e-newsletter so I thought I'd pass on that pointer. Justia publishes a variety of newsletters including editorial stuff, opinion summaries by various (US) jurisdictions, and by practice area, including of course Intellectual Property as well as more specialized summaries related to Patents, Copyrights, and Trademarks. The summaries are brief, generally well explained, and contain links to the fuller case material if something piques your interest.