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October 25, 2004

More on Me2Me: Market No SaviorEmail This EntryPrint This Article

Cory on why the market won't protect people from attacks on "me2me" freedoms:

Advocates of DRM talk about the ability of the market to find a balance between features and restrictions, because people whose freedom has been unduly restricted will make future purchase decisions that will put the overly draconian DRM systems out of business. But check out this cautionary tale of a guy who bought a home-media centre, started recording his favorite shows to DVD, and then:

Turns out that a couple of days ago, HBO started encrypting all of its programs with CGMS-A. They allow you to "copy" a program that you record from their signal once. The trouble is that they consider that one-time copy to be recording the program onto your hard drive, not taking it from the hard drive to a DVD. THAT SUCKS OUT LOUD and I am extremely angry, as you can imagine. The files are HUGE and, even though I have a 200 gb hard drive, I can't keep them there forever.

When he bought the media centre, it did the thing he wanted it to do with the shows he wanted to do it to: it's like buying a VCR to record the World Series, taking it home and satisfying yourself that it works. It worked.

Then, months later, it stopped working. He could no longer record his favorite shows. Why? Well, because the cablecaster decided to remove a right from him. And because Gateway, the company who sold him the equipment, decided to collaborate with the cablecaster in screwing him out of that right.

When this guy goes back to the store, what should he do to protect his next investment? Say he buys an HP device next, having concluded that Gateway won't look out for his interests. He takes it home and finds that it works fine for his purposes (maybe HP has a "better" deal with HBO that will let him burn more-restricted DVDs from his HP media-centre), then, a couple months later, the cablecaster switches on another flag and suddenly his video won't work.

Where's the market-force here? Should he stop being an HBO customer? A cable customer? A customer for only those PCs that he builds himself and installs a copy of GNU/Linux on?

What purchase-decision can he make or avoid in order to signal to the market that this kind of restrictiveness is unduly harsh and he won't pay for it any longer?

The Real Threat: Me2MeEmail This EntryPrint This Article

Jason proposes an interesting theory below: he argues that the recording industry's war on P2P may be a distraction from an even more mission-critical battle -- gaining control of "me2me."

It looks like David Bernstein of the Boston Phoenix would agree with Jason; in a recent piece on the RIAA's strategies, Bernstein writes:

"[The] labels are missing the fact that store-bought CDs, while probably retaining a place in the consumer's world, cannot provide what today's users want: total portability of their music. If users can connect electronically to every song or album they have ever paid for, wherever they may roam, well, the CD just can't match that."

HBO, for one, is very straightforward in its FAQ that the goal is to take away your time/space shifting rights in order to sell them back to you. In one section, HBO says that it has sole discretion to "decide what copying privileges [we] wish to extend to consumers." In another, it tells you its "On-Demand" service means you no longer need to "time shift" programming. But if you would like to own the programming you've just paid to watch, you are certainly welcome to pay for it again. "[The] entire series of HBO's Original Programming (such as The Sopranos, Six Feet Under, etc.)...[is available] in attractive box sets with special features such as out-takes and directors' notes."

So perhaps this battle isn't so much about "competing with free" as it is about competing with our expectation that we can, as we did with analog media, pay once to enjoy our purchase anytime and anywhere.

October 24, 2004

INDUCE's biggest threat: Me2Me appsEmail This EntryPrint This Article

During the CATO Institute panel on INDUCE last week Markham Erickson of NetCoalition made an interesting point. While discussing the various flaws in the INDUCE drafts, he noted that several versions attempted to outlaw P2P appliations based on language prohibitng specific technological architectures. For example, some of the drafts from the Copyright Office specifically targeted technologies that were "capable of widespread distribution of copyrighted materials."

Markham noted that when he talked to engineers in tech companies about this particular aspect of INDUCE, their main concern was that the direction that P2P architecture is headed (decentralized services vs. central server intermediaries) is the same direction that all network technologies are headed. Today's cutting edge markets -- Wifi, WiMax, Camera Phones, MP3 players, etc. -- are all trending toward flexible decentralized distribution mechanisms, just as P2P does. Therefore, any approach to INDUCE that targets a specific or general architecture threatens not only legitimate innovation in principle but also legitimate innovation in practice, at least according to the engineers on the ground.

This got me to thinking. Why were the RIAA and MPAA so insistent during the negotiations on a broad technological definition? Why not just write a bill that narrowly targets P2P companies by name and be done with it? (For example, one could simply make it illegal to write a software program that utilizes the GiFT, FastTrack, Gnutella, Bittorrent, or OpenFt protocols and that would effectively ban most current P2P apps).

The reason, of course, is that INDUCE is not really just about P2P apps. It's about the future of all distribution technologies and in particular, about what I like to call "Me2Me" apps. As network and distribution technologies evolve, they offer consumers and computer users more and more control over their own media. P2P technology broke into the mainstream as a mechanism for distributing files amongst different people, but the same architecture is becoming popular among technologies designed to distribute one person's content amongst his or her various platforms.

For example, consider iTunes and the iPod. iTunes allows one to stream music to any computer on your local area network. It also allows you to transfer files to any number of iPods. It also allows you to rip, mix, and burn CDs. In essence, it allows massive distribution of content, albeit primarily to one's self, family, and friends.

Or consider the Media Package on Tivo via Wifi. I use my Tivo Media package to listen to music streamed from my computer over my home wireless network. I also use it to view photos. Both of these mechanisms are "Me2Me" distribution technologies which allow me to shuffle my content from one platform to another. Technologies like the Airport Express and SlingBox further extend this capability by allowing you to shift content from your computer to stereo or from your Tivo to your laptop or PDA. And finally, don't forget cell phones. More and more, they are becoming dissemination technologies for audio, video, photos, and music.

The next generation will go even further. Imagine a wireless iPod that can synch with any iTunes application within 75 feet. Or a MP3 player for your car that automatically syncs with your home computer when you pull into the driveway. Or a media player on your laptop that automatically syncs with your TiVo to download the latest episode of your favorite Prime Time addiction.

This is, of course, the RIAA and MPAA's worst nightmare. Both industries have based their business models on controlling each and every permutation of playback for their content. The RIAA wants to make you pay when you buy the CD, when you download the iTune, when you listen to an Internet webcast, etc. The MPAA wants to charge you at the theater, for every copy of a DVD you buy, and (via advertising) for every show you watch on TV. Yet the more and more we as users and consumers are allowed to control and choose our own form of playback, the less Hollywood can justify charging us for each one. The more utility we get out of Me2Me apps, the less we're willing to pay someone for an extra copy or delivery mechanism. In the end, Me2Me technology may pose a larger threat to Big Cotent's bottom line than P2P ever did.

So how does this play into the politics of INDUCE? Well, P2P has been an easy political target for the RIAA and MPAA. Its an easy case of massive unauthorized distribution. In the Grokster case, they were able to show that over 90% of P2P is used for infringement of copyright. Its transfers take place outside the privacy of one's home and often include socially-stigmatized content like pornography, spam, spyware, and viruses.

Me2Me technology, however, would be much much harder to outlaw. Many Me2Me uses would arguably be fair or non-infringing uses. For instance, they tend to be private uses involving only family or friends. Many would involve use of media legitimately purchased by both the sender and recipient of the content (i.e. oneself). Thus, under current copyright law, it would very difficult to outlaw any of them. It would also be difficult to chastize them politically in front of Congress.

This is why the battle over DRM, the Broadcast flag, and now INDUCE has become so important for them. If the RIAA/MPAA wait too long, more and more platform distribution technologies with primarily legal uses will come to market and undermine their case for outlawing specific architectures. As these technologies take hold, public and political sentiment will continue to grow against harsher restrictions and enforcement and more toward allowing and embracing such technologies. Thus, the window of opportunity for the content industry to pass a restrictive law like INDUCE is very short. They must act now (dare I say pre-emptively strike?) while they can to frame the targets as a bunch of "bad" actors (i.e. the P2P companies) before too many "good" actors (i.e. Me2Me products and services) infiltrate the market and obfuscate the ability to outlaw one architecture without threatening the others.

September 02, 2004

The Irony of Digital Music DRM -- More Choices, Fewer OptionsEmail This EntryPrint This Article

One of the things people love most about the Internet is that it runs almost entirely on open standards. For example, you can send email to anyone in the world with any email client. You don't need to use a Hotmail account to send to a Hotmail user. You don't need to use Outlook to send email to an Outlook user. Every email program works with every other email program.

In the digital music world, however, we're seeing an increasing trend toward technological balkanization. Apple's iTunes won't work on anything but the iPod. Real's music won't work on open MP3 players. And now, as Frank and Donna have noted, Microsoft has launched its new MSN Music Store into the marketplace for digital downloads complete with Janus-encrypted DRM that only play on MSFT-approved devices. Thus, much like Apple and Real, Microsoft's music launch is just the latest effort to "bring music to the masses" by, ironically, setting up a new, separate, incompatible DRM fiefdom.

The problem with this world is that users can no longer count on the same freedom and compatibility they enjoy for Internet apps like email when it comes to online music. In fact, they will have significantly less freedom than they would buying a CD. Rip a CD and you can take the unencumbered MP3 files anywhere you go and listen to them on any computer or MP3 player you happen to be using. However, if a friend of mine wants to come over and play me a new song he just bought from an online store, I now have to ask him which store, what DRM restrictions are on it, is it compatible with my system, etc., or when he comes over, his song may not play on my system. This seems to me like a step backwards in technology, not forwards.

DRM also poses a serious threat to the notion of a "music collection" as we know it. Microsoft's new Music Store restrictions may seem innocuous and reasonable today if you own a Windows machine or use MSN as your OSP. But what if you switch at some point to a Mac? Or Linux? Or what if you cancel your MSN account? Will you be able to take your music with you? What if Microsoft decided in five years to drop support for its Music Store? Or what if most MP3 player manufacturers decide to drop Microsoft? All of the sudden you could end up with your music locked up and no key to unlock it. And the worst part is you have no control over the situation. You don't own the keys to your own music; Microsoft does.

These are the kinds of limited, crippled choices DRM gives us. And as DRM standards proliferate, incompatibilities and restriction will likely only increase. Unlike most markets where new options mean more choice and better deals for consumers, competition in the DRM music space fractures the functionality and choices that consumer want the most -- freedom, compatibility, and mobility.

So where will these DRM Wars lead us? Ironically, as my colleague Fred notes from a recent entry on Microsoft's own Music Store FAQ, they may lead us right back to where the digital music revolution started -- ripping MP3s from CDs onto our hard drives.

August 23, 2004

On Innovation - How Holy Is the Grail?Email This EntryPrint This Article

I know Tim Wu blogs no more @ the Lessig Blog, but he did it so well, I'm forced to backpedal for a second look.

Who Cares About Innovation? is provocative yet perplexing. Wu appears to posit two tiers of innovation -- "useful" innovation, such as the kind that results in applications like email, and (presumably) less useful innovation, such as the kind that results in, say, VoIP over powerlines:

Measured in social value, surely some of the oldest applications, like email, relatively untouched by innovation, produce most of the network's present social value. Sure, I think VoIP over powerlines would be pretty cool (thanks Adam Thierer). But compared to finding old friends, staying in touch, and everything else that email does, there is no serious comparison. Logic like this suggests that faith in innovation is a faith out of touch with human ends. Perhaps making what is obviously useful like email reach more people is more important than constantly reinventing, redestroying, or finally writing the perfect debugger.

I think Wu know that we wouldn't have email at all if we didn't have an environment/circumstances that allowed the kind of people who reinvent, redestroy, and finally write the perfect debugger (a.k.a. geeks) to do just that sort of thing. He writes that email "was an invention, and required the right environment for it to come about." Yet he goes on to warn "innovationists" that supporting innovation should be about its connection to human ends, not only "the abstract beauty of new technologies."

If I'm interpreting Wu correctly, I see things a bit differently. If there is beauty to be cherished and preserved here, it's in obsessive debugger-types (a.k.a. geeks) being free to do what they want without focusing on anything but improving the technology. Why? Because that's how creativity works. You pursue something you're passionate about, and you don't let go -- even at 3:00 a.m. If the work is embraced and becomes "useful" to others, that's terrific. But often that embrace is a happy accident.

I suppose that in the context of public debate about innovation, it's important to talk about the "useful" fruits because that's what the public plucks from the tree. But the true "innovationists" are more like environmentalists than anything else -- they encourage a healthy diversity of crops, not just the ones we (ultimately) find broadly useful.

Later (August 24): Edward Felten weighs in: "Often, we seem to be drifting toward a rule in which new technologies are, by default, banned, unless some functionary can be convinced that they have merit. That's a dangerous rule, not least because we may never know which potentially world-changing technology was snuffed out at birth."

Posner Blogs on Fair Use and CopyrightEmail This EntryPrint This Article

Judge Richard Posner has gone on a blogging rampage while guest-blogging this week on Larry Lessig's blog. I have to say, I'm mighty disappointed that his favorite movie was Eight Heads in a Duffel Bag, I mean, please (The Changing of the Guard).

Anyway, he has been going after copyright issues with a vengeance. In one post he talks about a soon-to-be-published paper in which he advocates for a copyright registry to reduce the costs of extensive copyright terms (Fair Use and Licensing). The argument sounds similar to Lessig's that, after a certain point, copyright holders should have to pay a license fee to retain copyright. Posner is arguing that they merely have to register a work. It will be interesting to read the article when it is published. See also, these postings (Licensing and Fair Use and Eldred Revisited). Like one of the commentators, I would also be interested in knowing why "poor old Mickey Mouse would be even less free if anyone could employ him without compensation."

Unfortunately, we won't be likely to hear anything substantive from Posner directly related to the Grokster decision, for reasons he lays out here (When Judicial Lips Are Sealed).

In any case, Posner has proven himself as prolific a blogger as he is prolific in everything else he does - stay tuned over at Lessig's blog.

August 17, 2004

Copyright and Cultural DamageEmail This EntryPrint This Article

Just before Tim Wu resumed his excellent blogsitting at the Lessig Blog, Rep. Rick Boucher asked a simple question that sparked many a complex response: "In thinking about the future of my information availability in our society, am I right to be concerned about the emergence of pay per use as the norm?"

The question brings to mind a central difficulty with explaining why the copyfight matters the larger sense -- e.g., why society as a whole should care about whether the Internet becomes "pay-per-use." The major problem is that it's tough to quantify cultural damage. The recording industry has plenty of numbers to quantify its guestimated loss. But how do you explain what is lost from our culture when access to "information goods" is determined by whether you can pay the rental fee?

EFF is preparing comments in a government proceeding about the future design of Regulations.gov and an online federal docket management system (EPA Docket No. OEI-2004-0002). Government documents are quite specifically "for the people" -- U.S. copyright law bars the government from copyrighting its original works. Nevertheless, there are countless ways that these documents are "reserved" for people/companies/organizations with the time and money to gain timely (and therefore useful) access to them.

It's costly to track the Federal Register and individual dockets for occasional references to topics of interest. Those who can afford to hire law firms to monitor regulatory activity are able to keep on top of important events and to make their voices heard. Those who cannot, often do not. EFF is proposing a number of technical fixes, including building in automated notification, RSS feeds, and bulk data retrieval.

So even in the absence of copyright, it remains an enromous challenge to keep forms of "pay-per-use" at bay. And again, how do you quantify damage? It's hardly possible to count actions not taken, no matter how harmful the end result.

June 21, 2004

Fair Use in Education: Point/CounterpointEmail This EntryPrint This Article

Michael Geist with the latest update on copyright reform in Canada, in which Toronto-area MP Sarmite Bulte is quoted as saying that exceptions to copyright law for educational purposes lead only to "freebies."

A posse of fair users at Knowledge Held Hostage, a conference held this past Friday exploring "how concerns about copyright and confusion about or threats regarding fair use [have] derailed (or threatened to derail) important scholarly work."

June 20, 2004

There, That's BetterEmail This EntryPrint This Article

Anil Dash and Matt Haughey take advantage of the ability to add to/improve upon public domain materials by adding linky goodness and improved readability to Cory Doctorow's much-discussed and most excellent speech on DRM @ Microsoft.

Thanks, guys.

June 17, 2004

Cory on DRM @ MicrosoftEmail This EntryPrint This Article

Cory Doctorow has gone to Microsoft to bring the gospel of no-DRM, presenting a substantial, well-written speech (Why Microsoft should get out of DRM). Cory makes five points in his speech:

1. That DRM systems don't work
2. That DRM systems are bad for society
3. That DRM systems are bad for business
4. That DRM systems are bad for artists
5. That DRM is a bad business-move for MSFT

I, of course, agree with all of them except number 5. The problem is that because of Microsoft's monopoly position, creating DRM backed by law can actually be quite a good business move, particularly if you don't think you are in a position to continuously innovate or need some barriers to entry to slow your competitors while you copy their innovative ideas.

For example, AT&T very successfully blocked innovation for a time and thrived, relatively speaking. Once innovation was permitted, AT&T struggled and now it is little more than a famous trademark. And thriving, relatively speaking, is exactly what business leaders want. You never know if a new innovation will really grow the market for your company. It is sort of hard to prove and guarantee. But no one can fault you if you stay on top of a stagnant or slowly growing market. The profits lost due to stifled innovation aren't as obvious as the profits lost due to a business model shift.

via BoingBoing

June 14, 2004

What Colour Is Your Paradigm, Part IIIEmail This EntryPrint This Article

Wendy Seltzer, reporting on the launch of Creative Commons Germany at the Wizards of OS conference:

If copyright in the U.S. creates entangling defaults, international copyright adds even more layers of potential incompatibility. Continental European countries recognize moral rights (droit moral); each country specifies the author's exclusive rights and options in its own terms. To be understood by lawyers, the licenses need to speak in these terms of art; to be understood by artists and facilitate international collaborations, the licenses must convey similar meaning in each national instance. The iCommons licenses translate the CC "some rights reserved" concept to help creators through the cross-border copyright muddle.

What Colour Is Your Paradigm, Part IIEmail This EntryPrint This Article

University of Ottawa law professor Michael Geist, analyzing responses to a previous column on the future of copyright in Canada:

The conflicting responses reflect two very different visions of the Internet. Those calling for stronger copyright protections, including the Bulte committee, view the Internet primarily as a new distribution channel and method to copy. In their view, new copyright laws are therefore needed to control unsanctioned copying and to restore appropriate levels of compensation.

Those concerned about the effects of greater protections view the Internet primarily as a technology for creating, not a technology for copying. For this group, represented by the millions of Internet users that post messages to newsgroups, maintain blogs, or actively share their work online, the Internet is not a spectator sport. From their perspective, copyright law should support innovative and creative work, not obstruct it.

June 11, 2004

What Colour is Your Paradigm?Email This EntryPrint This Article

Matthew Skala of Cyber Patrol reverse-engineering fame, in a very interesting essay on why Monolith looks a lot different to those equipped with a J.D. than it does to computer scientists:

Computer scientists who want to try to be helpful may say, "Okay, you, the lawyer, are a dangerous idiot, but I have to work with you or be thrown in jail as a Commie Mutant Traitor as happened to Dmitry Sklyarov, so I'll try to address your concerns. You say there is some special property of some bits and we need to know which bits have this property. Fine. We'll attach tags to the files to say what 'Colour' they are." In the copyright realm, that's the "rights management information" solution. It's what they do with DVDs (region coding), VHS tapes (Macrovision), Adobe eBooks ("you may not read this file aloud"), CDs (SCCM), and many other formats. The trouble is, if we (as computer scientists) are intellectually honest about it, we'll have to admit that it can't really work.

(Via Seth Schoen.)

June 07, 2004

Defining Open AccessEmail This EntryPrint This Article

This thoughtful piece by Robin Cook Peek is a must-read for two reasons: it serves as a useful nutshell description of the battle for open access to scholarly publishing and as a demonstration of its urgency. The news hook is that publishing giant Reed Elsevier has decided to allow authors who publish in its scholarly journals to "self-archive" -- specifically, "to post his version of the final paper on his personal website and on his institution's website." Provided, that is, that the final paper is an MS his own word document or text file rather than HTML or PDF downloaded from the official website.

Peter Suber, a leader in the Open Access movement, calls this "the breakthrough that it seems to be." While it may not provide scholars worldwide with the most ready, optimal access to the final, peer-reviewed piece, it nevertheless remains possible for the dedicated student to find, use and cite these materials. At the same time, however, it falls short of the definition for open access formulated by the Budapest Open Access Initiative, which advocates for the "free availability on the public Internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the Internet itself."

Suber is following minutely the discussion flowing from the Elsevier decision, and along the way offers valuable insight on the current state of play. If you haven't already, hop on over to Open Access News and check it out.

June 02, 2004

Cable Theft or Cable Sharing?Email This EntryPrint This Article

The Wichita Eagle warns readers that the local cable provider is cracking down on those who are illicitly receiving cable signals as part of the cable industry's national Signal Theft Awareness Week (Cable TV isn't a free-for-all).

"A lot of people don't really see stealing cable as a crime," said Kristin Peck, director of public affairs for Cox [Wichita's cable provider].

That raises a good question. Why is it cable theft and not cable sharing? Assuming that the illicit taps into the cable system don't interfere with other's use by degrading the signal or causing frequency interference, why should cable sharing be wrong? If enough people do it (an estimated 15,000 in Wichita, or ~4.5% of the population) shouldn't it be legal? Doesn't the cable company rip people off by charging too much and by charging for channels they don't want or watch? Shouldn't people be allowed to sample, as long as they buy the DVD set later?


May 28, 2004

Of Chimps and CopyrightsEmail This EntryPrint This Article

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]

Damn ... more things to read and look into.

May 25, 2004

UnFairPlay - Prior ArtEmail This EntryPrint This Article

Derek Slater has been giving a lot of thought to the issues discussed below, and evidently got there first. If you haven't already, do check out Welfare Economics of FairPlay and DRM Lock-in.

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]."

May 14, 2004

Fair Use - Theory v. PracticeEmail This EntryPrint This Article

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.

Extra: My previous post on the DMCRA hearings; ILAW uber-blogger Frank Field's comprehensive collection of weblog notes & commentary from the conference.

May 08, 2004

Romantic Notions IIEmail This EntryPrint This Article

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.

Well said, Joe. Very.

Read the whole thing here.

Romantic NotionsEmail This EntryPrint This Article

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.

Via Siva.

May 07, 2004

Why Use DRM If It Doesn't Work?Email This EntryPrint This Article

In the ongoing debate about cynicism and the broadcast flag, see here (More on Cynicism, Indecency, the FCC and the Broadcast Flag), Freedom To Tinker (Dare to be Naive), and Furdlog (Cynical or Naive?), one point has come up that I think deserves a more indepth answer. If, as I argue, the broadcast flag doesn't inhibit widespread internet distribution of HDTV broadcasts, why are the broadcasters pushing so hard for it?

In the comments on the Freedom to Tinker posting (Dare to be Naive: Comments), frequent IP blog poster Cypherpunk asks:

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.

A similar question was raised yesterday on Sellout Central. Brad, of Brad Sucks fame, considers why some might want to use DRM even if they know it will be cracked (The point of DRM). His thoughts come in response to a claim on The Register that all current-generation DRM will be cracked (DRM 'will be cracked' says iTunes hacker).

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 ...

Continue reading "Why Use DRM If It Doesn't Work?"

May 05, 2004

More on Cynicism, Indecency, the FCC and the Broadcast FlagEmail This EntryPrint This Article

Earlier this week, I wrote about my belief that the FCC's true reasons for supporting the broadcast flag are not the purported reasons used to justify that support (The Broadcast Flag is Well-Designed Regulation). As Donna notes below (Plus Dessert), there have been two good follow-ups to my original post. First, on Freedom to Tinker (Dare To Be Naive) and, later, on Furdlog (Cynical or Nave?). Read on for my responses ...

Continue reading "More on Cynicism, Indecency, the FCC and the Broadcast Flag"

Plus DessertEmail This EntryPrint This Article

...from MIT's Frank Field, who nicely synthesizes the recent discussion happening here, @ Freedom-to-Tinker and @ the Lessig blog:

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.

May 03, 2004

Free Strategic Advice for the RIAAEmail This EntryPrint This Article

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).

Frequent commenter Cyphrpunk, called this "the craziest idea [he'd] ever heard" (Cyphrpunk's Comments). He argued that,

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.

Holmes Wilson of Downhill Battle noted that open source filesharing software is a bigger long term threat (Holmes Wilson's Comments).

However, if I may say so myself, the idea isn't crazy, unless you mean "crazy like a fox." Read on...

Continue reading "Free Strategic Advice for the RIAA"

April 29, 2004

Copyfight Quote of the WeekEmail This EntryPrint This Article

Okay, so the week isn't over yet. Neverthless, I'm making a plug for the following quote by Benjamin Kaplan in his 1967 book, An Unhurried View of Copyright, which I discovered @ copyfighter (PDF) Kim Weatherall's weblog:

"It is evident that as rights are strengthened, they need run, and can be endured, only for a correspondingly shorter period. So, if copyright proprietors are given really comprehensive rights to prevent uses of their works in computers, it will, I am sure, ultimately become plain to everyone that the copyright period must be cut very short."

April 28, 2004

One Way for the RIAA to Go on the OffensiveEmail This EntryPrint This Article

Nearly two weeks ago Zeropaid reported that meta-filesharing software KCeasy, which supports several filesharing networks, received a cease and desist letter from Sharman Networks, providers of filesharing software KaZaA, because KCeasy interfaced with Sharman's FastTrack network (KCeasy leaves Fasttrack - v 0.12 Released). KaZaA, obviously, doesn't like the competition for a number of reasons.

As I noted in an earlier post (The Best Defense is a Good Offense), if the RIAA really wanted to put filesharing networks like KaZaA out of business, they should hit them where they are vulnerable.

The threat against KCeasy is an obvious example of where the RIAA can strike at KaZaA. The RIAA should be leading the way in reverse engineering KaZaA's interfaces and Sharman's FastTrack protocols and publishing them widely. The RIAA should also be providing legal support to the KCeasy's of the world.

Maybe the RIAA will win the Grokster lawsuit (hopefully not), but even if they do, the decision will only direct the next generation of filesharing software developers in how to program around the law. If the RIAA loses the Grokster lawsuit, then what?

They still go after Sharman by doing what Sharman doesn't like. For example, the RIAA could provide legal and technical assistance in developing KaZaA Lite (adware-free alternative KaZaA software). How many lawsuits can Sharman afford? How much competition can they really handle?

via /.

The Best Defense is a Good OffenseEmail This EntryPrint This Article

Ed Felten continues his series on the recent Speed Bump conference at the Berkman Center with a discussion of some guidelines for designing effective stopgap security measures (Stopgap Security). His previous post on the conference (What is a Speedbump?) and my response (Defining Speedbumps).

In any case, Felten has three suggestions for stopgap designers:

  • [Y]ou should look carefully at the lifetime cost of each stopgap measure, compared to the value it will provide you.
  • [R]ecognize that when the adversary adapts to one stopgap, he may thereby render a whole family of potential stopgaps useless. So don't plan on rolling out an endless sequence of small variations on the same method.
  • [R]emember that the adversary will rarely attack a stopgap head-on. Instead, he will probably work around it, by finding a tactic that makes it irrelevant.

Well, my first thought based on these guidelines was that the RIAA was hosed. In the long run, attempting stopgap measure after stopgap measure is inevitably doomed. As Felten says, "there is no good solution" in the copyright owners' war on P2P infringement.

Read on...

Continue reading "The Best Defense is a Good Offense"

April 26, 2004

It's All About the Distribution - Free Speech, Telecomm and CopyrightEmail This EntryPrint This Article

I've said it before. I'll say it again. When it comes to information, it is all about the distribution.

Last week, Ed Felten pointed out a great point about the important nexus between copyright law and communications regulation (Copyright and Cultural Policy). Felten was referencing James Grimmelmann's excellent LawMeme write-up on Seton Hall Law School's recent symposium, Peer to Peer at the Crossroads [PDF] (Conference Report: Peer-to-Peer at the Crossroads). Read the whole report, but the presentation that struck Felten's fancy (and mine) was UVa's Tim Wu: Copyright's Communication Policy [PDF]:

This article suggests that the main challenge for 21st century copyright are not challenges of authorship policy, but rather new and harder problems for copyright's communications policy: copyright's poorly understood role in regulating competition among rival disseminators. [emphasis in original]

Read the whole thing. It is a rich look at an extremely valuable way of considering copyright law.

Wu calls them disseminators, I call them distributors, but we both recognize their importance to copyright law. If, as I argue, copyright is about distribution, then it really makes sense to view copyright as communications policy (which is also about distribution) (It's All About the Distribution, Stupid).

I go even further, however, and claim that important elements of the First Amendment are also about distribution (It's Freedom of the Press, Stupid and Freedom of Speech as Distribution is a Good Thing).

Bonus: Check out the figure on page 11 of Wu's paper. Reminiscent of a layered protocol, don't you think?

Defining SpeedbumpsEmail This EntryPrint This Article

Ed Felten has the first report (unfortunately, I wasn't invited) that I've seen on the Berkman Center's Speed-Bumps conference (What is a Speedbump?). Apparently there was legitimate disagreement over what, exactly, a speed bump for digital distribution is. Felten rightly faults one vision of speed bumps, but I believe his alternative definition is also too broad. The faulty concept:

One vision of speedbump DRM tries to delay the leakage of DRM'ed content onto the darknet (i.e., onto open peer-to-peer systems where they're available to anybody). By delaying this leakage for long enough, say for three months, this vision tries to protect a time window in which a copyrighted work can sold at a premium price.

As Felten explains, this vision (usually associated with DRM) is unworkable. I've written more on why it makes little sense here (Speed Bumps on Your Car)

Read on...

Continue reading "Defining Speedbumps"

April 23, 2004

Brewster Kahle on Universal Access to Human KnowledgeEmail This EntryPrint This Article

When Brewster Kahle sees a problem -- preferably a big, hairy, audacious problem -- he's likely to ask, without blinking, "Where do we start?" That's the approach he's taken to his (and our) current task, providing "universal access to all human knowledge."

Where most of us would be overwhelmed by the sheer size of the task, Brewster sees a challenge to be categorized and attacked systematically: Why can't we as a society share with all of our members the learning we've produced? What does that mean? Well, let's say there are 26 million books in the Library of Congress; 2-3 million sound recordings; maybe 100,000-200,000 theatrical releases and as many more video ephemera; 50 million websites; 1000 channels of television. For each chunk, the Internet Archive has a project: The Internet Bookmobile and million book project; live music archive; moving image collections; and, of course, the Wayback machine.

In his closing keynote for CFP, Brewster asked three questions about this universal access to all human knowledge: "can we?" "may we?" and "will we?" He expressed little doubt on the first -- technology can get us there if we have the will. As for the "may we?", to Brewster's credit, he's not willing to let the law block his vision. So he starts with public domain and permission-granted works, and builds. Perhaps that takes us to the point where the archives speak for themselves, begging to be filled first with orphan works, then classics, then ... the sky's the limit.

May we all share Brewster's will.

April 18, 2004

Wendy Seltzer on Free CultureEmail This EntryPrint This Article

I've been working so hard getting the word out about matters pressing and urgent, I haven't had the time to truly listen. As a consequence, I've missed a lot of very fine thought and commentary entirely suited for highlighting @ Copyfight.

One such missed bit: fellow Copyfighter Wendy Seltzer's bloggish "review" of Larry Lessig's Free Culture. Succinct, near poetic, profound. A true pleasure to read.


"My father, a great litigator, taught me the value of analogies and stories to good lawyering: The right story creates a context in which your arguments make sense. For the past quarter century, copyright law has been dominated by a property story. Little surprise, because those telling the story -- the publishers, broadcasters, and entertainment companies to whom we've delegated the maintenance of culture -- use it to consolidate their control. In a property story, stopping 'theft' by any means necessary makes sense.

Lawrence Lessig gives us an alternative story, a story about Free Culture.
In the free culture story, copyright exists to promote culture, and culture benefits from sharing. When copyright's controls impinge on public discussion and subsequent creativity, copyright should be changed, not the public 'copying.' Copyright law didn't descend from the heavens fixed in stone. It came to American law from a group of founders who were deeply skeptical of monopoly control but saw cultural value in granting authors short-term, limited-scope protection from commercial appropriation. In the founders' tradition, we should reshape copyright so it continues to promote cultural progress; updated for today, that means giving copyright holders less control, not more."

Please, go.

April 15, 2004

The Logical Incoherence of Universal DRMEmail This EntryPrint This Article

Ed Felten has a typically insightful post on his Freedom to Tinker blog concerning the incoherency of universal, transparent digital rights management (A Perfectly Compatible Form of Incompatibility). After all, how can one have such a universal, transparent system when:

The whole point of DRM technology is to prevent people from moving music usefully from point A to point B, at least sometimes. To make DRM work, you have to ensure that not just anybody can build a music player -- otherwise people will build players that don't obey the DRM restrictions you want to connect to the content. DRM, in other words, strives to create incompatibility between the approved devices and uses, and the unapproved ones. Incompatibility isn't an unfortunate side-effect of deficient DRM systems -- it's the goal of DRM.
A perfectly compatible, perfectly transparent DRM system is a logical impossibility. [emphasis in original]

Read on...

Continue reading "The Logical Incoherence of Universal DRM"

April 12, 2004

All the News That's Fit to Re-postEmail This EntryPrint This Article

Rick Prelinger of the Prelinger Archives has a quiet little letter to the editor in today's New York Times that deserves a bit of amplification.

Snippet: "File sharing and free downloading have increased the ubiquity and prominence of our collection and have given it ample publicity at very little cost, resulting in increased income.

Might there be a lesson here for the music industry?"

April 02, 2004

Crawford Addresses Copyright OfficeEmail This EntryPrint This Article

Yesterday, Prof. Susan Crawford gave a talk to the Copyright Office (part of a program called The Copyright Office Comes To New York [PDF]), in which she critically discussed the broadcast flag, the DMCA, and state encroachments on copyright (Copyright Office talk). Read the whole thing. Being that yesterday was April Fools, let's hope the Copyright Office doesn't take her talk as a joke, as the Office has so often seemed to take other criticisms of copyright maximalism.

March 29, 2004

Listening to LarryEmail This EntryPrint This Article

We would certainly be remiss if we didn't (also) point you to AKMA's project to spread Free Culture to the four corners of the Internet. The good reverend is in the process of recruiting volunteers to record portions of the book and make them available as digital audio files; sign up to record one of the remaining portions here.

March 28, 2004

And the Meme Goes On...Email This EntryPrint This Article

Okay, I'll admit it--I read this article because of its title: Copy Fight. But I'm passing it on to you because it's a terrific interview on digital copyright issues with Larry Lessig and Ken Waagner--the man who oversees all things online for the band Wilco. Waagner made a streaming version of Wilco's "Yankee Hotel Foxtrot" available online three years ago. That's three years and a half a million albums ago.

Snippet below:

Continue reading "And the Meme Goes On..."

March 24, 2004

Larry's Latest EvaluatedEmail This EntryPrint This Article

Larry Lessig's new book, Free Culture, is going to be released next week and the reviews are starting to come out. Unfortunately, Larry didn't see fit to send me a review copy (hint, hint) so you won't get my take on it until I have a chance to read the free online version when it is released (and reading books online is a pain). Ah, well. The first review was an extremely negative (and clueless one) from Forbes (reg. req.) (The Trouble With Larry). Larry responded here: Talkback: Manes. Now, the Washington Post (reg. req.) has a professional reviewer take on Larry's latest (Copyrights and Wrongs: Damming the Flow of 'Free' Information). This is a real book review and will help the decision-making process for those who, for budgetary or other reasons, aren't sure they want to buy it.

via JD Lasica, who promises his review within a week

March 22, 2004

Namespaces Will Collide. Let Them. Part Deux.Email This EntryPrint This Article

The recent NY Times Magazine artice on namespaces by James Gleick has been getting a lot of discussion around the web (Get Out of My Namespace). Including this blog (Scoping out Trademark Abuse Online). Gleick calls for more relaxed laws: "Namespaces will collide. Let them." Interestingly, the article doesn't mention that Gleick's personal website isn't www.jamesgleick.com (which isn't even registered), but the generic Around.com. Now, LawMeme's James Grimmelmann has an excellent follow-up piece on Gleick's article (Three Heretical Thoughts on Name Conflicts):

It's only a certain desire for euphony in the suggestiveness of our otherwise arbitrary marks that makes us think we need certain names for our services. I look at language and I see something adaptable and fluid. I'd rather ask our natural talent for creative wordplay to carry a little more water and cause a little less disruption by evicting incumbent registrants from their domains.

Slater on SonyEmail This EntryPrint This Article

Derek Slater wrote a nice post castigating Sony for pushing yet another incompatible DRM format into the market for music (Sony to Continue Self-Defeating Music Strategy):

And be ready for Sony to move to the domestic market soon enough, bringing more incompatability fun with it. I thought Sony was working with Phillips on DRM that anyone could license - a Phillips executive even said: "The electronics industry recognizes that Microsoft is a formidable player, but consumer electronics makers do not want to become dependent on Microsoft. They need an interoperable and independent system, DRM is an accelerator which will boost digital sales of media, because it will convince media companies their content is protected. It should not be a competitive weapon." Sony doesn't seem to actually buy that. They're trying to set the standard, and they want control over the devices.
March 18, 2004

Siva on Free Culture's "Scholarly Partner"Email This EntryPrint This Article

Siva Vaidhyanathan has a question of interest to copyfighters of the scholarly persuasion: What should we call the emerging field of study that recognizes the architectural element to expression in the networked environment? Or, as Siva puts it, the "scholarly partner" to the Free Culture movement?

Siva's trial balloon is "Critical Information Studies," a term he suggests might encompass work by economists, communication scholars, lawyers, computer scientists, librarians and others to interrogate the "structures, functions, habits, norms, and practices that guide global flows of information and cultural elements."

Central to this field of inquiry, writes Siva, is a concept many of us have begun to call "semiotic democracy," or the ability of citizens to "employ the signs and symbols ubiquitous in their environments in manners that they determine."

To my view, Siva's term works rather well--I've seen "critical media studies," but that doesn't connote information/networked environments specifically.

What do you think? If you have a thought or two to share, do let me or Siva know.

March 17, 2004

Lessig on Copyright at OSBCEmail This EntryPrint This Article

Stanford Cyberlawprof Larry Lessig warned of the dangers of over-extensive copyright at the recent Open Source Business Conference. Infoworld has this report: Lessig: Be wary of 'IP extremists'.

March 14, 2004

User Rights Aren't LoopholesEmail This EntryPrint This Article

University of Ottawa law professor Michael Geist, the man behind the what is perhaps the single most valuable email list on cyberlaw issues, discussing a decision today by Canada's Supreme Court that demonstrates refreshing copyright sanity:

As Professor Vaver, supra, has explained, at p. 171: User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.


In words that may reverberate into the online environment, the court also concludes that a person does not authorize copyright infringement by authorizing the mere use of equipment (such as photocopiers) that could be used to infringe copyright. In fact, courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law.

More from Professor Geist @ Dave Farber's IP list.