The basic story is simple: The Author's Guild Inc. has sued Google to stop it scanning books into its print initiative.
Donna's post in this blog just a bit ago summarizes some of the arguments around Google's "fair use" defense.
What's interesting to me at the moment is the way the messages are being carried. Google has chosen to officially blog its response in its corporate blog. In its response it illustrates what such a search hit would look like and asserts that this is fair use. This chosen method of response is all the more interesting because the reportage on CNET of the original story contains no response from Google. This is because Google tried to put CNET into the doghouse with a year-long blackout on commentary. However, in order to explain why there's no comment from Google, CNET has chosen to link back to the original story that provoked Google's ire in the first place. So rather than letting the brouhaha die down, Google's and CNET's behavior continue to drive readers towards the story Google doesn't like. This is highly amusing.
From press releases to VNRs, companies have long struggled to get control of how their messages get out. A bad publicity moment can haunt a company for a decade or more (see P&G's ongoing fight against rumors of satanism). Google is rolling out a series of initiatives that could be revolutionary if widely accepted, or could be colossal failures - blog search, Google VoIP, etc. Whether or not it still cares about its much-publicized "don't be evil" motto, it certainly cares about how it gets its message across to the tens of millions of potential users of its services. A corporate blog is just one weapon in the arsenal and I'm quite sure we'll see Google making heavy use of it. Will other companies follow suit? Probably, but at a much slower pace. But as CNET is showing, blogs, web reporting, and the ability to link are not simple weapons. Google may find itself more hurt than helped by its current strategy.
Laura Quilter provides an excellent guided tour through the debate here and elsewhere over the Google Print library project, then goes much, much further, asking what we should do next if we want to 1.) preserve what's good about traditional libraries and 2.) fulfill the promise of today's (and tomorrow's) digital libraries:
But most librarians, myself included, want to preserve BOTH today's model of the library: the brick-and-mortar warehouse-and-cataloger-of-physical-media (which I do think will always be around) — AND the idea of the library: the collector and provider of information. So the question is, how, or why, do we copyfighters / librarians / information activists / legal scholars distinguish Google Print in a way that doesn't hurt Essence of Library down the line? And why, tactically, should we? Maybe, we should focus on building a more robust fair use, fixing 109 so it works with digital media, or even adding in more 108 exemptions. Or maybe on the DMCA Library of Congress anticircumvention comment rounds that are coming up again.
Update: Siva Vaidhyanathan discusses some of the ways traditional libraries nurture society and culture, distinguishing these from Google's access and indexing "powers":
Libraries pump the life blood of a democratic culture and a democratic republic: culture and information. They are places people escape from each other (imagine a gay teenager growing up in Boise without a library). And -- more importantly -- they are places where people come together.The presumption that Google's powers of indexing and access come close to working as a library ignores all that libraries mean to the lives of their users.
Professors are always on the look-out for the "teachable" moment -- that all-too-rare real-life situation that helps demonstrate an abstract, difficult-to-teach point. That's part of why I was morbidly fascinated to hear about the roll-out of "copy-protected" (DRM-hobbled) electronic textbooks at Princeton University, where Edward Felten teaches computer science while writing -- brilliantly -- about how DRM and the Digital Millennium Copyright Act (DMCA) conspire against learning.
There was no book-cracking, but I was hardly disappointed. Professor Felten took the opportunity to distinguish between simply disliking DRM products in the marketplace (don't buy it) and disliking DRM + law and policy like the DMCA because it interferes with the marketplace (you're screwed). "The problem with DRM is not that bad products can be offered, but that public policy sometimes protects bad products by thwarting the free market and the free flow of ideas," he wrote. "The market will kill DRM, if the market is allowed to operate."
I suppose we can see "the market" at work in the electronic textbook company's decision [PDF] to extend the period of time before the digital ink disappears from these "books" (now you can get a year or more of still-restricted use). I can't get very excited about it, though. The move from analog to digital always seems to mean leaving behind the traditional rights and freedoms that nurture real learning. Sure, you'll pay less for hobbled textbook than you would the real thing, but you also pay less for a McDonald's hamburger than you do for one that's actually good for you.
So we made a little noise about these rent-a-textbooks, and the distributor responded by granting a few more rights -- because it's in that vulnerable roll-out stage where the customer can determine whether or not a product will be successful. Once you achieve buy-in, of course, you no longer have to listen so hard to what your customers want. As I've written here before, that's where Microsoft, the giant of market giants, sits -- poised to make the general-purpose personal computer into an entertainment appliance that listens to Hollywood, not you. Like the hobbled textbooks, it will let you do less. Unlike the hobbled textbooks, it will cost you more. And of course, the implications reach much further.
Over @ Freedom-toTinker, Don Marti had a few thoughtful observations about why Microsoft is moving in this direction. Now, both Fred von Lohmann and Seth Schoen have followed up:
Writes Fred: "Hollywood is saying, loudly and to anyone who will listen, 'unless we get content protection that satisfies us, our next-gen high-definition video will not be on your platform.' Since there are only a handful of major studios who control 90%+ of commercially important film and TV content, this kind of cartel threat is relatively credible.
In the past, this would have been an empty threat, since someone could just build a device to play their content, whether they liked it or not. Not so since 1998, thanks to the DMCA. Now, if Hollywood encrypts its content, tech vendors need to get permission before they can build a device to play it."
Writes Seth: "For Microsoft, the licensing game is a great anticompetitive opportunity because it can use its dominance and mindshare in one area to get dominance and mindshare (and licensing revenue) in other areas, and then keep going round and round with this strategy in subsequent technology generations. A permission-required culture for innovation looks less scary when you're on the inside of the barriers to entry looking out, instead of on the outside looking in."
So what do we do about this? There's no single answer. You can complain (but you may not be heard). You can not buy (but others will). Or you can fight at the law and policy level -- joining or funding organizations that fight to keep innovation and free competition alive. Letting your representative know you don't support technology mandates that outlaw open-source alternatives to permission-culture products. Supporting politicians who fight for consumers' rights. Evangelizing so more people understand what they've got before it's gone.
One thing I learned after posting about what "copyfight" means is how new the movement is for many people. I'm developing a copyfighter's H2O playlist that will help newbies, but in the meantime, if you don't know about them already, here are a few good starting points for the "action items" above:
We've talked here before about what it means to be a "copyfighter," with lawyer Erik J. Heels providing an excellent definition (emphasis, mine):
I don't always agree with other engineers, lawyers, or business people, especially if I feel they don't understand the "how" of the technology, the "why" of the law, or the "so what" of business. And don't get me wrong, I like being called "linkable and thinkable." But if "copyfighter" means "one who fights against bad copyright laws (and for smarter business practices)," then I am a copyfighter.
Copyfight is the broad banner to describe people who are fighting for reforms to intellectual property -- trademarks, patents, copyrights and what are called "related rights" (broadcast rights and so on). ...[WIPO has been pursuing a policy of] simply making more copyright, more patent, more related rights, more trademarks on the grounds that all of these rights were themselves a good, regardless of the impact they had on people -- whether they were denying access to patented pharmaceuticals in poor countries that desperately needed them and couldn't afford to buy them at the market price, or simply creating copyright regimes that made basic education more difficult to provide in developing nations. ...
WIPO...created regimes that made it illegal, just for instance, to reverse-engineer digital rights management tools and create locally interoperable products, so you had to import foreign goods, which could only play foreign media, and your local arts scene would find itself smothered, your culture would find itself overwhelmed by imported culture, and your local technologists would be undermined by foreign interests.
Every so often, I get an email from a Copyfight reader asking where the blogs are for "the other side" of the copyfight. The question always makes me uncomfortable. For one thing, I don't like to think we're all so easily lumped into categories. What possible good can come from standing so far apart that we can only launch long-range missiles at one another -- while readers yawn and look away? But more importantly, red state/blue state thinking is a big part of what keeps us in this ridiculous stalemate. You say tomato, I say tomato; we don't even get to potato before calling the whole thing off.
What readers are really asking for is the kind of real, honest-to-goodness debate that will give them the tools for understanding things like the Grokster decision. I'd like to to see that kind of debate, too. But what I often see from the "other side" is a bizarre kind of baiting strategy -- attempts to get a rise by either suggesting or outright arguing that people who fight for balanced copyright are automatically opposed to any and all copyright.
Case in point: not long ago I received a very polite email from the Institute for Policy Innovation's Sonia Blumstein announcing its new weblog, IP Blog. Wrote Blumstein:
IPBlog is not the only blog on intellectual property, we know, and it's not even the only one from a free-market perspective. But we know we have compelling content and commentary to share, and we hope you'll join us. ...We're also happy to have your suggestions for content, if you come across something of interest. And we're interested in your feedback and suggestions. We will be expanding and improving both the design of the site and its content on an almost daily basis.
In a discussion thread on this blog, I challenged a critic to try to live an IP-free life for some brief period of time. ...Anyway, that reminded me of something funny I saw back at the WIPO meetings in April, the IIM/1, as it's come to be called. All the IP sceptic folks showed up on the last day of the meeting wearing their adorable black "A2K Now" tee shirts.Well, as I was sitting in close proximity to the commies with the Free Software Foundation, I got a close look at the tee shirts in question. You can imagine my glee as I pointed out to them that the tee shirts they were wearing actually carried not one but TWO different forms of IP protection. On the tag there were both brand and style registered trademarks.
"Where are your open source tee shirts?" I asked. "Show me your Creative Commons commemorative gear!" I taunted. This resulted in a rather heated discussion, as you might imagine, but I got a huge kick out of it.
I suppose this post is my inexcusably long-winded way of arguing for a definition of the copyfight that gets us as far away as possible from spitball territory. Is it really so difficult to agree that intellectual property can sometimes be pushed too far, in ways that harm society? That there are smarter approaches to IP law and policy than one-size-fits-all, more = better? Do we really have to go back to grade school each and every time to explain that we're not communists when we say so?
Edward Felten, concluding a critique of the Posner/Becker reaction to the Grokster ruling, argues that it may be time for judges to start taking computer science classes:
As we have seen so many times, bad computer science leads to bad law. Posner seems to miss this, but Becker's stance shows appropriate caution.One criticism of law and economics is that it works well in a seminar room but may lead to dangerous overconfidence if applied to a hard case by an overworked, generalist judge. One solution is to teach judges more economics, and economic seminars for judges have proliferated. Perhaps the time has come to run seminars in computer science for judges.
On the other hand, as a reader over @ Freedom to Tinker points out, a little education can be a dangerous thing:
The idea of trying to make judges into experts in computer science terrifies me. Trying to make them into experts in economics has resulted in some good work, but also in half-baked opinions based on terribly narrow interpretation of economic theories that might or might not model actual human behavior, with unexamined premises littering the landscape. Even expert economists get large-scale decisions terribly wrong on a regular basis — just ask Jeffrey Sachs or Joe Stiglitz.The same goes for computer scientists — the past 40 years will give you a good idea of how accurate, en masse, CS folks have been at predicting the impact or even the broad evolution of their field. (Some predictions spot on, others not even close)
If there were some kind of seminar in computer science for judges, so that
they could avoid looking completely at sea, what principles would you want to teach them?
Perhaps you could post a reading list: top five (ten?) articles that lawyers, judges and law professors need to read to understand the technical limits that you describe?
Just as he did post-Eldred, Siva Vaidhyanathan has written an accessible reaction piece for Salon that will help people who don't read Supreme Court opinions understand what the Court ruled and why. Late in the day yesterday, William Patry -- reader of countless Supreme Court opinions -- expressed his sharp disappointment in the ruling (hyperlink, mine):
What has changed for me is that I am always impressed by the Court's grasp of issues at oral argument, but am disappointed in the quality of the resulting decision. Grokster is the most disappointing of all. Like Lotus v. Borland, where the Court split 4-4 after a week (lazy!), Grokster raises to me serious issues about the ability of the Court to deal with hard copyright technnology issues. I had predicted after Grokster there were not 5 votes for either side and that proved true. But I didn't expect a phony 9-0 unanimous opinion, phony in the sense of tossing something out as if the Court had really done something. In my view they didn't.
Overall, Monday's Grokster ruling is a middle-ground decision about a territory that has no middle ground. Souter and the court have issued a Solomon-like decision that will do no good for the plaintiffs, do no harm to infringers -- and could have profoundly negative effects on future innovators of technology.[...]
Souter is convinced he saved the Sony standard and technological innovation in general by focusing on acts that "induce" people to infringe. "The inducement rule, instead, premises liability on purposeful, culpable expression and conduct," he wrote. To demonstrate that Grokster and StreamCast induced infringement, Souter considered how the product was conceived and distributed, how it was advertised, and even what inspired Grokster's name.
But it's not at all clear that the next big case won't completely undermine the Sony decision and retard innovation, investment and risk-taking. The next company to be sued likely will not make the mistake of marketing its products as "the next Napster." But will courts stretch the "inducement standard" established by this case to include clever marketing? And what about the other devices that let us copy stuff?
No one is likely to sue Bose, 'ster or no 'ster, pink skull and cross crossbones or no pink skull and cross bones. The quesion is, why? In the wake of this ruling, what will distinguish the "good" inducers (like Google) from the "bad" inducers, especially when they're still working in the garage and haven't yet become the next "'ster" or "pod"? And who will the courts listen to -- the scruffy guy with the rogue open-source software program, or the corporate lawyers peeved that he refuses to hobble it?
As Mike Godwin points out in his must-read Reason column on the decision, the ruling "saved" Sony but blurred its bright line:
By opening up the question of whether the designer or manufacturer or distributor of a new technology had the "intent" to "induce" infringement—terms that are not yet fully defined in this context—the Court made sure that company e-mails, advertising, and any other evidence may now be discovered in a trial proceeding, even if the technology itself has the potential substantial lawful use.
Sigh.
These are only a few of the roads of inquiry the ruling opens up, as you can readily see with a quick scan of Ernie's latest posts @ Importance Of.... The dust won't settle for some time -- perhaps not until the next 'ster/pod reaches the Supremes.
Update: John Palfrey expresses simply and elegantly the central point of this over-long post:
The hardest, unresolved question after Grokster is what the effect of this ruling will be on the entrepreneur in her garage and on the venture capitalist seeking to put investors’ money to work. In threading the needle, the Court has made the copyright regime more subtle and less clear. The Sony rule was easy for the unrepresented technologist to understand: can somebody use my technology for some lawful purpose? If the answer is yes, then the business model is presumptively lawful.The Grokster line, announced yesterday, is much harder to work out – and there’s the rub. The cost of the Grokster opinion lies in its lawyerly precision. The problem is that the entrepreneur will have to work harder to determine what she has to do to make sure her business is able to attract the capital needed to get it to market.
The entrepreneur, and her prospective investor, now have to ask some new questions. Does her business model effectively induce others to violate copyright? What kinds of advertisements would get her in trouble? What are the “reasonable” steps that she needs to take to stop people from using her technology for infringing uses? With the help of a good – and likely expensive – lawyer, these questions should be able to be answered.
Mavericks owner/entrepreneur Mark Cuban, who helped fund the Grokster defense, writes about how Wall Street reacted to the decision -- or rather, didn't:
Kaboom!That was the sound heard throughout wall street as entertainment stocks blast off into the stratosphere upon the mid day news that MGM got the best of the Grokster decision. Wall Street traders and investors recognizing that the decision would lead to certain demise for illegal P2P filesharing sites and result in an explosion of music sales over the coming months and years, pushed stocks such as Warner Media Group to all time highs on record volume.
Except that didn't happen.
In the business world, one way to evaluate the financial importance of news is by watching to see how Wall Street responds to it. If there is the slightest glimmer of hope in a news announcement, at least one person is going to think it will have some level of impact and make a bet on the stock and/or industry impacted.
There wasn't a Kaboom, there wasn't a whisper in the market. Not one buyer or seller of stocks gave a damn. Warner Music Group, probably the only public company that is a pure play proxy for the music business, traded almost exactly the same number of shares as it does every day. The stock was down a nickel.
In other words, no one cared. No one on Wall Street thought that this decision would impact the music business at all.
Of course, that's because it won't.
THe MGM Grokster decision wont help the content business make more money. It won't help artists make more money. This deal gave something to both sides, but it gave the most to lawyers and lobbyists.
Speaking of Grokster meta-blogging, Ernie Miller is having a typically thoughtful, typically enjoyable back-and-forth with Seth Finkelstein on the subject. Along the way, Ernie articulates well a point I've tried to make in my own conversations with Seth on the subject of blog A-listers: "It's not about the number of hits you get, it's about the knowledge produced. ...For all this talk of power law distributions and A-lists, the creation of knowledge is not pre-determined."
Despite the power laws, insight from specialists like Seth and Ernie does indeed "rise to the top" and influence the discussion, even when there's no direct "credit" in the form of article quotes/Slashdot links/A-list hat tips/Google love. None of us can quantify influence as easily as we'd like to. A link farmer can put X number of links on his blog "resume," but so what? Seth has put X number of links in the minds of people who care deeply about censorship on the Internet. Similarly, Ernie's blog is quite obviously the progenitor of many of the more nuanced and interesting mainstream media articles about current developments in law and technology. Do the journalists who write the articles link back directly to specific posts at Importance Of...? Rarely. Nevertheless, there's no way you can plausibly argue that he hasn't influenced the discussion.
Grokster day will indeed be filled with blog punditry by people with varying levels of knowledge and expertise in the subject matter. And you can be sure that whomever posts the first comment at Slashdot will have an ego-warming deluge of linky love. But the people who know and care most about Grokster will be elsewhere, listening to the other people who know and care most about Grokster. And that's where we'll see the valuable knowledge production happening, regardless of the number of "hits."
A lovely mini-essay on copyright, culture, and cake, by our own Jason Schultz, written in response to a discussion about the same over @ BoingBoing:
As an actual copyright and trademark attorney, I feel this sort of discussion highlights exactly where our notions of "property" and "culture" cause confusion and tension between what the law is, what our intuition is, and what we wish the world was like. Most of us probably wish that we could easily go into our local bakery with our favorite comic or cartoon character and have it put on a birthday cake for our child or best friend. Sure, we wouldn't mind paying a bit more, if it were easy and relatively cheap. However, because the copyright maximalists have been able to frame copyright in terms of "property", this reality is increasingly difficult to achieve. Property rights are generally thought of as absolute and impenetrable, e.g. my favorite San Francisco anti-parking sign that says "Don't even *think* about parking here!"Yet kids love culture, as we all do. And their love of copyrighted and trademarked characters helps make those characters valuable, just as the creators' inspiration and skill have. Consider if no child loved Dora the Explorer; how valuable would the copyrights and trademarks in the character actually be? Not very. Yet the love and obsession of fans do not garner any "property rights" in the character or any rights at all, according the maximalists. Even those willing to pay to use their favorite characters are often chilled from doing so because the maximalists argue they must come and beg permission from the copyright owner or face up to $150,000 in fines for their sins and indiscretions.
Does this mean the creators of the character should have no rights?
Certainly not. But it may mean that they shouldn't have absolute rights. In theory, that is what "fair use" is for, to balance out the rights of the creator with the rights of the public to enjoy that creation, especially in a private world that does not compete with the creators' business. In the case of Dora, that is the making of commercial cartoons and books, not cakes. The fact that Dora is popular on cakes comes from her popularity among her fans, not the skill of the hand that draws her or the voice that speaks her words.
Finally, all too often, we see a perspective like Tshaka's, where the argument is made that if you don't enforce your rights, you lose them.
Nothing could be further from the truth in this context, even for trademarks (i.e. the only time you lose your trademark is if it becomes generic for the class of goods you sell; no one would ever start calling cartoons "Doras" and birthday cakes aren't even in the same class of goods). What Tshaka is really worried about, it seems to me, is a loss of *control* over the use of one's creations. The idea that someone other than the creator might actually make use of the character without permission is what drives copyright maximalist authors, owners, and advocates crazy, not loss of rights or even, often, compensation.
It is this battle for control that is at the heart of the copyright wars and little else. From the perspective of consumers and fans, characters like Dora have become part of our lives and we shouldn't be ashamed or intimidated from enjoying that fact, even if it involves putting their image on a birthday cake. From the perspective of the Copyright Maximalists, however, even a "Let them eat cake" policy is far too lenient and infringing of their rights.
Responding to a post of mine on The Importance Of... (Record Companies Intend to Make Criminals of Us All), Prof. Michael Madison describes three different groups that will have different responses to the recording industries efforts to make sharing music with friends and family illegal (Casual Piracy). The names are mine, but seem to fit his structure:
I've been holding back publishing the interviews I conducted with key figures in the copyright wars until now for a number of reasons, but chiefly because it presents a much clearer prism to see the arguments on each side lined up against each other contemporaneously.
Today, as a very small gift to Copyfight, I present to you, ladies and gentlemen, a full text interview with the legend himself: Jack Valenti.
Now, our friend Jack stepped down as head of the MPAA last September, but his influence lives on and, more importantly, the way he framed the public debate on these issues remains intact. His successor, Dan Glickman, is now finding his voice, but he has yet to engage the public's imagination as fully as Valenti did.
In short, Valenti's views still matter.
You've read accounts of Valenti's Congressional testimony over the years, and his one-on-one with Derek Slater for the Harvard Political Review in 2002 (tho I can't find the link!). Copyfighters like Derek and Ernie Miller (who earlier deconstructed an abbreviated version of my interview with ol' Jack) have pointed out the inconsistencies between Valenti's arguments and the realities of the digital world.
It's a world view that needs to be challenged at every opportunity, because the underlying assumptions have been internalized by the powers that be on Capitol Hill. Valenti paints this as a battle between those who believe in copyright and those who believe in thievery, when of course that's not the case at all. He argues that the problem can be solved through technological innovation, when what the MPAA is really after is a form of trusted computing that rewires the next generation of personal computers to enshrine a form of copy protection into the machines so that they obey Hollywood, not the computer's owner. His view of fair use -- that it doesn't exist except as a legal defense -- is perhaps the most dangerous, for it threatens to cramp our visual culture and stifle an entire generation of grassroots media.
The deeper we understand what animates the entertainment powers, the more effectively we can form an uplifting counter-view of the new digital landscape.
(The following is rank speculation, referred to by a friend of mine as speaking ex recto. I have no secret sources nor access to any insider info.)
Apple's switch in hardware platforms is about the transformation of Apple into a media company. It will probably still make hardware, and it will probably still dominate certain niche market, but those markets will be ones that matter in Hollywood, like digital editing.
There are lots of reasons for this, and you should expect to see Apple beating the snot out of MS in the media business in the short and medium terms. I'm not so sure about the long term; people who make long-term bets against MS tend to come up empty. Part of the key advantage that Apple has is Steve Jobs. He runs Pixar. He can call up the head of any major studio and get in to see the right execs. They like him - he's one of them. They hate Bill, who they see as trying to muscle in on their business. If you have any doubts about this, look at the number of Hollywood films and TV shows in which characters are seen to use Macs vs those in which they use identifiable PCs. In Hollywood an enormous amount of business is done on handshake deals; Jobs knows which hands to shake and how to speak the language of the people whose hands he needs to shake. He has a track record with the music industry, too, though that relationship is a bit rockier.
The second part of this battle is for the home entertainment center. MS actually has a jump here with its PC customized for that marketplace and Apple needs a major move to catch up. Apple's wedge strategy will be the Mac Mini and Airport, but they're both too damned expensive. Would an Intel-based Mini be significantly cheaper? I dunno. What I do know is that iTunes is also beating the snot out of all comers and is a significant driver for hardware sales. If Apple doesn't have a digital movies deal in place and isn't providing movie/TV content to homes by Xmas this year I'll be stunned. The content for this service will be provided by those execs that Jobs has had lunch with.
I also fear that Apple is signing up for the Intel hardware lockdown. Hollywood, like the rest of the Cartel, is insanely paranoid about its content being "stolen." Intel is offering to wave a magic wand and pretend to make that problem go away. Apple couldn't afford to leave that card solely in MS's hands; by signing up for this, they've neutralized a major advantage Redmond used to have.
It's also true that, to some extent, they're Osborning their hardware sales. But by showing that OS X runs *now* on Intel hardware, Jobs is sending a strong "Don't Panic" message to software developers. Relax, he says, you won't notice any difference. We've got the OS running there now. The low-level guys like device drivers will have to do some scrambling, but Apple will help them.
Along the way, Apple is taking a nontrivial shot at Microsoft's PC-based gaming business. That home entertainment center needs to play games, too. Right now, very few games run on Macs. A few big names, but nowhere near the title span that PCs have. But if Macs are on Intel hardware then game companies have to do much less work to get their games over. And as additional incentive, if Apple has the "in" with Hollywood then it's one step away from the game companies' wet dream of having a major motion picture deal, with all the revenue and licensing dollars that implies. Games' core home computer market won't move off the PC, but game studios now have much more incentive and much lower barrier to entry for getting their games onto Apple boxes.
You can't look at this announcement as a bullet. It's a full broadside, and the impacts are going to be felt over a large range (see Donna's entry below for more big thoughts). It's also going to hit targets other than Microsoft; one likely impact will be on Sony, which also plays in the home-entertainment spaces and which can be seen as a partner and competitor for both Apple and Microsoft. As far as I know they haven't had anything official to say on this topic yet.
Three choice posts from the unstoppable Mr. Miller, who's on yet another roll:
Thanks for the hospitality, Donna!
I began researching and reporting my Darknet book (bit o' trivia: my choice for a title was Remix Planet) three years ago next month after reading about the fascinating discussions taking place on this topic at the ILaw seminar, and then following the postings on the original Copyfight and several other blogs. (Copyfight has been an invaluable resource for me in getting up to speed on these topics. You folks dish up the goods!)
The first thing I'll confess is: I'm no lawyer. Never even went to law school. For two decades I've been a journalist and writer as well as a member of management at several tech startups. I have nothing but admiration for the attorneys and scholars who have laid the intellectual foundation for these debates -- people like Larry Lessig, Siva Vaidhyanathan, Ernest Miller, Fred and Cory at EFF, Jessica Litman, David Bollier, the gang at LawMeme, and a long list of others.
But it was also obvious to me that we needed to bring this discussion out of its current orbit -- among IP experts, academia, Capitol Hill, geeks and tech conference attendees -- and try to connect with the wider public.
The public has been all but left out of this debate. Copyfight and dozens of other blogs have brought a spotlight to these issues, but we need to do more to engage and enlist the general public
And so I set about not to argue a new intellectual thesis, but to tell stories -- accessible, meaningful narrative accounts of the people affected by the battle over digital rights. (I use the admittedly fuzzy term "digital rights" on purpose, by the way. Too often, Hollywood has framed this as a debate about piracy. It's not. It's about whether the entertainment companies should have the ability to dumb down our digital devices in order to protect their existing business models.)
I'm not here to hawk the book -- you're welcome to check out some of these stories and interviews on Darknet.com, which I hope will become one of the spokes in the hub of conversations about these issues. Some of the stories up there include The teenage filmmakers, and The Prince of Darknet, and (just today) the story of Philip Gaines asserting his fair use rights to annotate and comment on his favorite TV show.
In the next day or two, I'll post an interview I had with Jack Valenti a few months before he stepped down as chairman of the MPAA.
OK, that's enough for an intro. I want to post some quick thoughts about fair use, and invite your thoughts and comments. I'm here to listen and learn as much as anything. And even after my guest blogging gig ends, I'll be returning on daily basis. Nice to be here.
Prof. Michael Madison and I have been discussing what distinctions, if any, there are between works that are licensed and works that are sold as "restricted use". For example, a CD that only the buyer is permitted to play. The discussion includes guest commentary from Ed Felten and a digression into Creative Commons licensing.
One more from Madison: Licensing and Design
Well, why not? You cannot criticize Apple in word or deed without getting flamed to burning embers. Maybe Leander Kahney is onto something:
Intel's DRM scheme has been kept under wraps -- to prevent giving clues to crackers -- but the company has said it will allow content to be moved around a home network, and onto suitably-equipped portable devices.And that's why the whole Mac platform has to shift to Intel. Consumers will want to move content from one device to another -- or one computer to another -- and Intel's DRM scheme will keep it all nicely locked down.
Presumably, Jobs used his Pixar moxie to persuade Hollywood to get onboard, and they did so because the Mac platform is seen as small and isolated -- just as it was when the record labels first licensed music to iTunes. The new Mac/Intel platform will be a relatively isolated test bed for the digital distribution of movies and video.
Will current Mac users like this new locked-down platform? I doubt it, which I guess is why it's going into consumer devices first.
Derek Slater, in the midst of a thought-provoking discussion with Ernie Miller about the benefits of copyright-as-leaky-boat, asks a very interesting question:
[Can] we a) acknowledge the constructive role [for "leaky" copyright] while b) opposing widespread infringing filesharing? ...Perhaps a part of the reconciliation is a sense that, whatever may have been the meritorious effects of filesharing during Napster's birth, now competition in legitimate services can become good enough that it's time to call off the dogs.
Ernie's answer, as I interpret it: "If the entertainment industry called off its own dogs, we wouldn't even be having this discussion."
One of the dogs is, of course, the DMCA. Another is the zero-tolerance attitude toward leaky-boat behavior (and I would add, the "me2me" tools that enable it):
Well, blatant copyright infringement was never cool. Yet, I don't think that were filesharing to go away, copyright would be in balance. ...Part of my argument in favor of the public/private distribution distinction as the focus of copyright law is that it provides a clear means for "leaks." If the RIAA keeps music prices too high, people will engage in more private distribution. When prices are reasonable, there will be less private distribution.Similarly, I think that the DMCA shifts the balance for leaks in ways that are counterproductive.
I will continue to counsel against infringing public distribution via filesharing systems. Yet, I don't believe that there can be true reconciliation until copyright law is better balanced.
I'd like to open the floor on this one. What do you think?
Teleread goes off on a lengthy link-filled rant against the Entertainment-Copyright Complex (Universities, John Edwards and the Entertainment-Copyright Complex).
Eisenhower warned of the need to “guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.” More than a few Democrats–I’m one–could appreciate the Eisenhower’s principles and perspicacity here. Ike saw a need for the military but did not want it to dominate American life. Eisenhower was seeking a middle ground by the standards of the time, and I wonder how he would have felt today about a different complex–the Entertainment-Copyright Complex.
Over at FindLaw, Julie Hilden has taken it upon herself to explore the theoretical implications of the much-discussed flash movie that predicts "Googlezon" -- that is, a future where Google and Amazon have merged, joining search capability with detailed, personalized knowledge of the user. Hilden argues that if something like Googlezon materializes, the current fuss over copyright infringement through filesharing will be very small potatoes indeed.
[As] I will explain in this column, it's very possible that equally - if not more - important Internet copyright issues may be on the horizon. Moreover, these issues may relate not only to how we get our entertainment, but also to how we get our news.The issues are as simple and fundamental as they are troubling: Exactly how much content may be copied on the Internet - and of what kind -- before copyright is infringed? And more deeply, when is content "copied" in the first place when it comes to the Internet? Does the fact that the copying is done via a machine editor - not a human editor - make a difference?
Making compilations like this illegal, as copyright infringement, would challenge the status of a lot of traditional research - such as virtually any doctoral thesis, nonfiction book, academic paper, and on and on. For this reason, I agree with [Googlezon flash movie creators] Sloan and Taylor that the Supreme Court would likely rule for Googlezon - not "old media" - in its Supreme Court case.But it's also possible the Court - or, ultimately Congress, in the wake of the Court's decision - would rework copyright in a way that better fits the Internet.
Previous related reading here @ Copyfight: Alan's Google's Scan Plan Draws Critics.
Update: More food for thought on Hilden's piece over @ Importance Of..., where Ernie Miller presses once more for the logic of focusing on distribution rights, not copyrights, for digital works:
Copies, copies, copies. That is sooo 20th century. Computers make copies, that is what they do. I imagine, but don't know the technical details, that Google's ginormous database of books has numerous complete copies of the works stored, and not just as backups, either. So what?We can waste all our time trying to figure out how many angels dance on the head of a pin as develop archane rules on when copies are made and whether those particular copies violate copyright, or we can think about information as a flow, as a transfer, as a distribution.
Brother Dana Blankenhorn throws down the gauntlet in the copyfight; you're either for us or against us (The Way of Hollywood is Madness).
Let's be clear. Al Qaeda and the forces supporting them are Luddites. They aim to take their part of the world back to the Middle Ages. And they aim to take us down to the Middle Ages with them.Strong words.The Internet is the greatest weapon we have against tyranny in all its forms, especially this form. Any move against it is a move on behalf of the enemy.
So where do we go from here? I believe that if we don't move toward compromise on copyright we're pulling our own virtual Twin Towers down over our own heads, just to keep the enemy from doing it first.
So, having read part one of Mark Pesce's series on television piracy, I can say "welcome" to another copyfighter, albeit one whose writing has an ahistorical bent to it.
Pesce's column makes it seem like the story starts with Battlestar Galactica and BitTorrent in late 2004. Um, no, I'm sorry. I was watching Babylon 5 episodes with vast groups of MIT geeks as soon as someone could snatch the downloaded signal off the satellite, days before the local affiliates broadcast it. Friends of mine have been going to Buffy parties and participating in other TV-show sneak-preview distribution networks for years. So yeah, BitTorrent makes it easier and having broadband makes it available to more people, but it's not really new.
Pesce's next point is that BitTorrent creates a kind of "hyperdistribution" in which the net becomes more efficient at distributing media than broadcast possibly can. Again, not really news. To pick just one non-random example, Nicholas Negroponte has been saying things like this for years (see Being Digital for example).
Pesce is also wrong when he calls out region-specific/live broadcasting as "unsuitable" for hyperdistribution. He should study some of the history around the Cartel's attempts to cut off TiVo's distribution features because they break region locks for things like blacked-out sports events. Trust me, there's an audience for this.
What Pesce is really trying to write is his analysis of the potential commerical models that hyperdistribution enables. Assuming that the Cartel called off its attempt to smash BitTorrent, and called off its jihad against its TV-viewing customers, it might consider some of what Pesce is offering in the way of alternative business models. He notes that station id 'bugs' are permanently etched on most TV shows now. I find these logos incredibly annoying, but Pesce seems to think it's a good place to put station-independent "advertiser payloads" (why does this remind me of "deaths by friendly fire?"). He notes that some advertisers are already doing this, as well as experimenting with different forms of embedded (and thus less skippable) advertising.
Mark has correctly noticed that television revenue is directly proportional to audience size - that's the metric advertisers use - and that BitTorrenting the content only builds audience. So in theory it should make economic sense to build a business around this. However, what he's failed to realize is that the Cartel are impervious to economic analysis, as it's oil to their water.
[Edit: changed the title and removed timeliness references in response to Mark's notes about his historical involvement. See comments for details]
Legendary musician Frank Zappa wrote an extremely interesting article on home taping back in 1983 (A Proposal for a System to Replace Ordinary Record Merchandising):
Every major record company has vaults full of (and perpetual rights to) great recording by major artists in many categories which might still provide enjoyment to music consumers if they were made available in the right way. MUSIC CONSUMERS LIKE TO CONSUME MUSIC . . . NOT PIECES OF VINYL WRAPPED IN PIECES OF CARDBOARD. [emphasis in original]Read the whole thing. Very cool.
via MeFi
Via Ernie Miller, something I missed but you shouldn't: Derek Slater's reflections on what constitutes a desirable common platform for copyfighters:
I am deeply uncomfortable with [Downhill Battle's] excusing and encouraging widespread, infringing P2P file-sharing, and I particularly disagree with their doing so as a means to destroy the major record labels. I think that association with this stance poses the greatest danger to succeeding in the copyfight....Some say that Downhill Battle helps make other groups like EFF or PK seem more moderate by contrast. I worry that, instead, other groups who do not share these views get lumped in with Downhill Battle. I worry that, for instance, the EFF's Let the Music Play campaign gets interpreted as expousing similar views, and that, when the EFF supports building a tool like Tor, it's interpreted as merely a means to shield unlawful online activities.
Update [May 10]: Seth Finkelstein weighs in, sharing insight from his role in the battle against filtering software. In a nutshell, he sees little long-term value in moderates attempting to "herd cats" to reach a common platform, and warns against "moderate"/"radical" divisiveness:
In the few media interactions I've had regarding censorware, whenever I'd get a question about whether or not I agreed with the alleged wild-eyed radicals of Peacefire, (sorry Bennett :-)), I'd decline the invitation to play let's-you-and-him-fight. I would say something along the lines that I thought so-and-so, and I could talk about what I thought, but not anybody else. It worked for me. Maybe it was just that I was sympathetic and at too low a level, while higher-level people would have more pressure. But I actually didn't feel I had to carry any burden of ensuring moderation in everyone in the whole cause (heck, truth be told, I think Peacefire's radicalism eventually worked for them overall, much better than my attempts at a pseudoprofessorial presentation).
There's a fresh crop of papers by Siva Vaidhyanathan now posted @ SSRN:
James Boyle has just delivered the pièce de résistance in his three-part series on copyright for the Financial Times: Deconstructing Stupidity. The stupidity in question is the way that governments typically make intellectual property law and policy -- that is, without evidence that it will produce the desired social or economic benefit.
"If the stakes were trivial, no one would care," observes Boyle. "But intellectual property (IP) is important. These are the ground rules of the information society. Mistakes hurt us. They have costs to free speech, competition, innovation, and science."
Why, then, do we make these mistakes? According to Boyle, it's not only "corporate capture" that makes governments stupid about copyright. They also suffer from any number of delusions, making them susceptible to "anecdote and scaremongering."
The film and music industries are tiny compared the consumer electronics industry. Yet copyright law dances to the tune played by the former, not the latter. Open source software is big business. But the international IP bureaucracies seem to view it as godless communism.If money talks, why can decision-makers only hear one side of the conversation? Corporate capture can only be part of the explanation. Something more is needed. We need to deconstruct the culture of IP stupidity, to understand it so we can change it. But this is a rich and complex stupidity, like a fine Margaux. I can only review a few flavours.
As Boyle writes, IP delusions are not merely stupidity. They constitute "an ideology, a worldview, like flat earth-ism. But the world is not flat and the stupidity pact is not what we want to sign."
Absolutely not. But delusions are by their nature difficult to shake.
In part two of the series, Boyle pointed out that in the US, we make weather data available at cost -- yet we have a thriving private weather industry. Now, Siva Vaidhyanathan brings news that Senator Rick Santorum (R-PA) wants to prevent the National Weather Service from giving away weather information because it competes with the Weather Channel.
"It is not an easy prospect for a business to attract advertisers, subscribers or investors when the government is providing similar products and services for free," says Santorum in a Palm Beach Post article. How many people will challenge the Senator on his assumption that the weather industry can't compete with free? I'll wager not many -- despite the fact that it already is.
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