Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.
Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.
Sundman's publishing journey is unusual, probably unique. He began with a Creative Commons-licensed work (Acts of the Apostles) that got a positive review on /, and saw a spike in popularity on Amazon. The novel was then sold to a small indie publishing house that was set to produce a revised version but was instead bought out by a bigger house. The rights then reverted to Sundman who wanted to produce a revised version of the book, incorporating improvements. The result is called Biodigital and it's about 60/40 reworked material/new material.
This sort of thing is (or used to be) quite common in the music space. Bands would release an EP with 4-5 songs and then later a full-length LP or CD containing those same songs - perhaps with a more professional production polish - and some new material. Record companies are set up to do this. Book publishers? Not so much. Sometimes you get a novel that's been made out of a short story (e.g. Ender's game) but nobody I know of has taken a previously published novel and remixed it themselves.
So, that's one point of view. Or, you could just pay the goddamn writer what they're worth. In this clip from an upcoming documentary on Harlan Ellison, the author rants about the "assholes" and "amateurs" who agree to work for free. Ellison wants to be paid for his work - in this case for an interview that Warner Brothers wanted to use on a DVD.
A real author, in this case Ellison, wants to be paid for their work particularly when that work is going to be used in a for-sale enterprise by a highly profitable mega-corporation such as WB. Ellison's rant is necessarily simplistic, but he has a basic point: the explosion of free content is making it difficult for people who want to make a living. The difficulty - again, see Erin Biba's rant - is that even people who are making money at these sorts of businesses seem to want contributions to come in for free. We, the public, give our free labor and content to YouTube and Facebook which use that content to make millions. It's been a couple years since the Ph.D. elite began to revolt against the publishers who make millions off their free labor but that business hasn't changed.
We're looking at a very wide gulf here: on the one hand we have individuals like Sundman and Fleishman who are on their own trying to figure out approximately everything and having a hard time getting actual income. On the other hand we have corporate entities that appear still to be quite profitable yet take advantage of individuals. I have no idea how to bridge this gap.
Two articles on Medium illustrate the differences in how 21st-century business models are affecting different people.
The first is Erin Biba's short, sharp farewell to Medium. Despite being one of the better-paid writers on the site, she's only getting about 2.5 cents per click on her story. That's not enough even to think about living on, and it's well below the living wage (she doesn't specify how much) that she's getting from traditional media organizations.
The core of her rant is that new media organizations don't value quality, only clicks. This leads to a profusion of listicles, recycled mindless content, and other things designed to drive up pageviews regardless of the content of those pages. In other words, new media are getting what they (don't) pay for.
What's missing from Fleishman's piece is how this relates to a living wage. He calculates his profit at $3000 on over $53,000 base income. That's not even going to pay rent for the time the campaign ran, let alone any realistic calculation of expenses. Yes, the purpose of the campaign was, nominally, fulfilled. But what's the point of artists making these complex and time-consuming campaigns when they can't eat? I talked about this last October, when I backed the 99% Invisible Kickstarter and I feel like if Kickstarter is going to run aground this may be its weak point: however many dollars it can pour into product, we still don't have a reasonable and reliable way to compensate the creators whose products we want.
(h/t Boingboing where I first saw these stories linked)
The proximate cause is that the Chief Justice of the CAFC is stepping down from the Chief spot and the Court has had to re-issue two opinions in which soon-to-be-ex Chief Judge Randall Rader was involved. Rader recused himself from those cases, but not before he had been involved in the decisions (oops!). To make matters worse, the reasons for recusal involved ethical improprieties on Rader's part that call into question his fitness to serve as a judge at all. Rader effectively endorsed a lawyer, in a manner similar to an author giving a blurb for a novel they enjoyed.
Judges at all levels are supposed to be as impartial as humanly possible. Giving an endorsement to a lawyer - let alone one who might appear before your bar - is just not done. Yes, we know that judges are mostly former lawyers, and nobody expects them suddenly to drop their private friendships with other lawyers. But there needs to be at least some professional distance.
The CAFC was created in 1982 in order to merge two courts that were hearing and often competing in rulings over patents. The theory was that there should be one highest court for patent cases, which would lead to more uniformity and that this unified court would be able to delve into the more technical matters that patents often require. Unfortunately, the CAFC seems to have spun more and more out of control,
He notes that IP in games can involve multiple regimes: patent, copyright, and trade dress, which covers elements of physical appearance and is generally compared to trademarks or service marks. I am not enough of a lawyer to know what is covered by trade dress versus design patents - they seem essentially similar to me.
The reader question to which he is responding involves a complaint and suit by the game company Wizards of the Coast against competitor companies Cryptozoic Entertainment and Hex Entertainment. WotC alleges that the game Hex: Shards of Fate, produced by these competitors, is too much a clone of WotC's famous and highly lucrative game Magic the Gathering.
Without getting into the specifics of either game too much, TB argues that there are derivatives and there are clones. The latter are particularly prevalent in the mobile space where a successful game often finds itself facing a dozen nearly identical clones with the serial numbers rubbed off. Larger-scale game cloning is much more rare, though it does happen. On the other hand, games are like many other media forms in that they innovate by evolution. Game mechanics and styles are similar, but new games make changes and twists and try new combinations or new approaches to the same thing. It's not at all clear at what point any given collectible card game is going to wind up being too similar to another.
The PBS Idea Channel's May 7 episode looks at The Future of Fandoms. One cannot talk about fandom without running into fan fiction and the entire cadre of (usually not officially sanctioned) derivative works produced by fans. One of the possible futures posed in the episode is whether the growth, robustness, and increasing popularity of fandom will provide a more robust bulwark for fair use.
It's not an unreasonable question - despite the efforts of the Cartel and various large corporations to stamp out fannish work there are now things like fan-funded major films, and the 'Net provides ways for fans to organize and respond that did not exist decades ago. Where fan-created derivative works previously only existed in sort of shadowy or out-of-the-way spaces, you now have Comicon costuming on major news networks, Google images, Etsy stores, not to mention millions of blogs, sites, and generally transgressive Web pages.
By sheer volume it's impossible to police all this stuff, so the question is whether it will continue to exist in a legal limbo, or be able to be legitimized. My opinion is that we're unlikely to see a more robust fair use anytime soon, because the current regime works to everyone's advantage. Corporations can still selectively prosecute those works they find threatening, while making money off the fan base that is kept fed with the quasi-legal derivative works. Fandoms grow fan bases and keeping a robust fan base has always been in the interests of the promoters - that's why there used to be official fan clubs. And I suspect that many fandoms act as slush piles for creators. Most of it isn't usable but once in a while a gem will float by. Certainly enough people are convinced that commercial creators "stole their idea" to support an entire forest of advice and help Web sites.
It's also in the interest of the monied powers to keep people guessing. If you don't know whether or not the lawyers are going to show up at your doorstep you may self-censor, or seek licenses and permissions that you didn't actually need but are less costly than a legal defense against Disney's hatchet team. (Not to pick on Disney exclusively, but they are one of the most aggressive.)
If you think government is somehow going to come to the aid of fair use, well you haven't been watching the amazing amount of regulatory capture that has happened in the past six years. I doubt we'll ever see a major change in Executive position so long as there continues to be a revolving door between the regulators and the regulated.
If you are a nerdfighter (and you probably are, or should be) then you may have seen the Vlog Brothers' short video on "I Gotta Go". In it, the hosts discuss their use of a sign-off phrase, which they've been doing for years. The brothers realize that their use of this phrase, and much of the style of their videos that they had taken to be unique to themselves, derives instead from childhood hours listening to Ian Shoales commentaries.
This leads to a riff on the notion of creativity and they come around to the idea that creativity isn't a single artist locked in a room, but rather is a creator who is soaked in the cultural milieu of their time and place and whose influences may not even be conscious. As one of them says, "this [sign-off phrase] is deep in my brain."
Long-time Copyfight readers will know that this is the view I've had since I started blogging here. It's been important for me to state that because so much of corporate creativity is based on the myth of the sole creator. I'm not saying that people whose output goes through the professional systems (publishing, record labels, movie studios, etc) are not creative. But in fighting over who has the rights to such creative output, the Cartel has found it convenient to push the myth that creativity is exclusively the province of the most recent person to touch it. The fight against remix culture brought this back into sharp focus, with the assertion that sampling so small an amount as a three-note phrase was "stealing" someone else's "original work."
I can clearly spot my own conversion to the cultural model of creativity: a class I took from Henry Jenkins at MIT. That class changed my ideas about how creativity works, and very nearly rid me of my elitist bias in favor of high art over pop art. Then again, Jackass. I retain my biases, and how Copyfight expresses some of them.
You may have noticed that I'm not posting much here lately. There are a bunch of reasons for that. For one, work has gotten really busy and I don't have a lot of energy for doing more writing when I get home. I also am discouraged by the loss of all the comments that got wiped out in my attempt to deal with the ongoing current of spam. Very few people take the time to comment on entries and I appreciate those who do.
I am also trying to figure out what kinds of things I want to put in the blog. If I have time for fewer entries then I'm likely to shed small stories or things that interest me less, and try to focus what time I do have on things I find more worthwhile. However, that contributes to the blog's quiescence, which isn't good for the blog or regular readership.
This is the question posed by Paul J. Heald of the University of Illinois (PDF link). Heald's research shows that the majority of uniquely named musical songs from the previous century are available in digital form on places such as YouTube (70% of public domain and 77% of copyrighted). But when you go to look at ebooks, the story is starkly different: 94% of popular books from the early part of the 1900s up to 1923 are available and after that you're pretty much out of luck.
1923 is the publication year for volumes that still fall under copyright - the hole in our collective mind that begins there. But if copyright was the whole answer you'd expect to see a similar gap in availability for other works like music that are still covered by copyright. Since we don't see such a gap the question is why?
First, music is both easier to "produce" - that is, convert into easily accessible digital form - and "consume" since any browser or mobile device will hook you up to iTunes or YouTube. By contrast, creating an e-book is still a fair bit of work and you often need a specialized reader or app to consume the e-book.
Second, Heald points to two cases that caused a split in how copyright was applied to the two media. In 2002, the case Random House v. Rosetta Books established that publishers need authorial permission to create e-books, particularly when reprinting older works. By contrast Boosey & Hawkes Music Publishers, Ltd. v. The Walt Disney Company found that publishers - in that case Disney - did not need a special license to convert music to a new form.
Heald's belief is that reform of copyright laws would lead to a surge in publication of older e-books. Given that his data show a high availability of pre-1923 books in electronic form, he argues that the production and consumption barriers aren't really that significant. Publishers are in the business of selling books that people want to read and even if it's not true for all volumes, it's still likely that publishers would find literature that was worth the investment to produce.
GOG - Good Old Games is an electronic games-sales store. It has a wide variety of titles but is best known for its namesake: older games that long ago left retail shelves and may be hard or impossible to find from other retailers. Even online retailers need a supply of keys, which make up the inventory of an electronic games store, and there's not a lot of incentive to buy and hold onto keys for old games that people may never buy. GOG, though, lives in the long tail.
Geigner points out the ways in which Walker's proposal appears both sensible and even-handed and highlights some of Walker's responses to his critics, whom he calls both "astronomically false" and "gruesomely inaccurate". It's fun to read and I suggest you read both Geigner's summary and Walker's originals.
Walker touches on several of our common themes: what motivates creative people, what is the purpose of copyright and how has its current maximalist implementation strayed from that purpose, etc. To take a page from the economist's book, it's a fundamental error to treat non-rivalous goods the way we treat rivalrous goods. The creation of a process for releasing old games into the public domain after a long time would enrich our society without impoverishing creators.
Salmon points out that each of these attempts is "highbrow" by which he means variously that the journalists are taking their work seriously, all have pretty high price tags, and come with high ambitions. It will be interesting to see which of them is able to make it.
Like Salmon I am most excited about Ezra Klein's attempt to do a more networked, more comprehensive, and less time-dictated version of journalism. For a long time the wisdom has been that news has to be "new" and that electronic media would win because it is faster at delivering the latest new thing. Even broadcast television has its news timeslots and 24-hour news channels have schedules to follow.
But maybe news isn't about newness so much as it is about comprehension and understanding. Another thing the net and electronic media are good at is providing comprehensive - some would say overwhelming - amounts of data. That can take the form of a firehose - just search for a common problem like "my cat pees on the carpet" to see how many different answers you can get, not to mention people wanting to sell you products to solve your problem. Or it can take the form of a collaborative answer. This week I remembered the Challenger disaster and found that Wikipedia has a really detailed and thorough page on the event.
These things both have their uses as well as weaknesses and what Klein seems to be proposing is some of the best of both. He wants a site where incremental updates on developing stories are folded into a larger, more comprehensive, and more explanatory whole. This is an idea that I've seen bounced around since people like Ted Nelson first started talking about using hypertext for news, something I heard from him in 1986 or '87. If Klein can make it work that will be a real advance, in my opinion.
Benkler and his co-authors used a set of tools to code content from various Web sites, news sources, and social media over a 17 month period. Their tools did the initial text and link analysis, which they then supplemented with human review and personal interviews. From this analysis they argue that - in effect - the long-claimed effects of decentralized and networked democracy worked. They track how small-scale media worked to shape and coalesce the story (narrative) that then entered the mass consciousness.
As David Post notes in his blog entry on the report titled "What the Hell Happened?" for people not intimately involved in the networked media discussion for the year or two before the bills went down, it felt like a sudden tidal wave. Literally in the space of a couple days the bill went from having massive support from the political elite to being a piece of toxic waste politicians couldn't disavow fast enough. It looked like a quick event from the mainstream media perspective, but what Benkler et al show is that the opposite is true. The conversation started and evolved and grew through broad participation (including thoughtful academics like Post). It was these highlights that the mainstream media seem to have picked up on, missing the broader and deeper picture.
It's a standard question in economics to ask if we have too much or too little of something and if so, why. Stiglitz argues that right now innovations are overprotected. As evidence, he notes that the Myriad decision - invalidating their patents - was key to unlocking important techniques in cancer screening, such as alternative (and affordable) tests for second opinions. Breast cancer is itself a killer, and women are making radically life- and body-changing decisions on the basis of these genetic tests, so having easy access to alternatives is clearly a major value. Stiglitz notes that he filed an expert declaration in the Myriad case arguing why patents are not necessary for drug innovation - in fact they stifle such innovation.
Stiglitz's points are complex and worth reading - I can't do them real justice in a blog post that summarizes a column where he himself summarizes a set of book-length arguments. But let me touch on three important elements of the debate.
There's an argument to be made that health-related intellectual property is special. I've just finished watching a lovely video from the Steinway company on how they make their piano bodies. Many of their techniques are (or were) patented. Our patent system makes no distinction between a process for creating a life-saving drug and a process for laminating boards to give particular sound fidelity. Economically, however, they are very different. Stiglitz argues that generalized increases in health and longevity have led to the economic booms and prosperity we all enjoy. Making a better piano is nice but has a fairly narrow benefit; making people generally more healthy has a much broader impact. In market terms, there's a greater value realized (even though it's much more diffused) and from that one can reason that they ought to be treated differently.
There's also an argument to be made for replacing government monopolies with more direct subsidies such as funded research and prize competitions as promoters of innovation - on efficiency grounds if nothing else. Stiglitz argues that our current structure of IP monopolies lead to "rent-seeking" behaviors that are undesirable from both economic and social points of view. Patent trolls may be some of the worst rent-seekers we've seen in the IP arena. Eliminate (or curtail) these monopolies and you reduce the waste and hindrance that comes from rent-seeking behaviors.
Finally, there's the important idea that there's nothing actually necessary about the system we have today - it's a political construct, not a mathematical necessity. If we're going to be talking about new models for business, we also ought to be talking about new models for IP.
There's another school of thought, though: anything goes. We've seen this in industries like fashion where copying is in the lifeblood of the business. This is sometimes called the "wild west" but it would more accurately correspond to "colonial times." In the bad old days when American was the upstart and the British were the established heavies, Americans stole and copied and stole and copied. Even after the Copyright Act of 1790 and its successors became part of the body of American law, we were happily ripping off European authors to the point where they actively tried to keep their books out of the hands of Americans. The wholesale copying of IP in movies continued for most of the 20th century.
Spin forward to today and America stands in the place Great Britain used to occupy, and the populous, noisy, IP-disrespecting position is occupied by China. Now it's our turn to howl, so it's reasonable to keep pushing the comparison. Unfettered copying gave rise to those titans of Hollywood, industry, and publishing that are now so desperately trying to clamp down on the Chinese, so why should we be going along with it?
In the article, they argue that America's (currently famous) innovative nature derives from its centuries of blithely ignoring IP restrictions. China today is a billion-person marketplace full of knock-offs, awash in copies of American products, copies of American ideas, and even one-for-one copies of American companies. Most of those copies are outperforming their American originals in the Chinese marketplace, which may have something to do with the way that the Chinese government is not just turning a blind eye but is actively promoting the copying-as-business model.
Raustiala and Sprigman call this "indigenous innovation" and argue that although many of these native-Chinese firms began as carbon copies they have since evolved and innovated past their American counterparts. This, they argue, is natural and healthy. It's good for Chinese, who get access to products and services they could not afford in the original. It's good for consumers in general, who benefit from a marketplace in which established companies feel pressure to innovate in order to stay competitive. And it's generally good for underdogs everywhere who are trying to unseat the current dominant players.
Salmon argues that Raustiala and Sprigman "don't go far enough" in that they seem to think drugs IP is special, an area where I definitely agree with Salmon. But this does not address the core issue, which I still see as "what are the appropriate compensation models for the 21st century?"
I don't think the analogy to developing American IP behavior is a perfect one. The idea of infinite perfect digital copies, the evolution of markets toward global, and the massive increases in connectedness make this century significantly different. At the very least, it's incumbent on those who want to argue for the analogy to explain why this new world is enough like that old world that the model still holds.
The sad truth is that this has been the case for pretty much all of human history. Creative types of all sorts have been shunned, kicked out of town at dusk, hired, fired, or even killed at patrons' whims, thrown in gaol for offending the rulership with their latest portrait or play - the list goes on and on. The view that Kennedy expressed - which later led President Johnson to create the National Endowment for the Arts - is a nice idea but a historical anomaly.
Buckell is, by most accounts, doing pretty well. He's making money by publishing his stuff, both through traditional and new-media means. He's been nominated for a fistfull of awards, which means his stuff gets reviewed, and appears in places like New York Times bestseller lists, one of the traditional measures of publishing success. He is, by some metrics, an "average" selling author; however, as he shows pretty clearly there's a huge difference here between "average" (the summed midpoint) and "median" (the most likely point). In fact, the median sucks, which means that e-publishing sucks for the vast majority of people.
What survivorship bias says is that our impressions will be skewed by unusual tales, which obscure the general reality. We read about one author who is making that 100k and we don't realize how unusual he is. For every Konrath there are hundreds of thousands of other e-book authors who are working hard and not getting enough money to pay the rent and keep the lights on. Again, that's just normal history but Buckell is concerned that because we're in this other historical anomaly, those people are getting doubly victimized.
If you're not selling well in e-book now, the tale goes, it must be your fault, somehow. You didn't try hard enough. You didn't use the right publisher or the right advertising medium or the right pricing model. You didn't land in the top 100 so your experience doesn't have meaning, when in fact it's the other way around. Those top 100-selling authors are the anomalies. They're doing well and that's great. But that doesn't make them more meaningful or relevant examples than an average 100 e-book author, or a median-100 e-book author.
Buckell does have one important point that I think deserves to be thought about harder: he says he's playing the long game and I think that's required here. There are a few true overnight sensations, but when you dig deeper you find that a lot of people who have suddenly broken out did so after years of hard work and building up to that breakout moment. So if you're a creative type, good on you. Do the hard work, try to be successful now but if you're not don't take it as a personal flaw - take it as confirmation that you need to play a longer game.
The story starts with how the T shirt's hue is copied (or inspired by) predictions of trending influences, and elements like colors that are associated with those influences, and goes into a discussion about how the entire fashion industry lives around a copying and imitation model. This is, from a conventional protectionist-thought school, heresy. IP protection exists, protectionists would say, in order to encourage innovation. IP protection gives innovators time to reap benefits of their work. Without such protection, what is the incentive to create?
Well, in fashion, it appears that not only is there incentive to copy - everyone wants to get on the popular trends - there's incentive to differentiate. You want to be identified with a look, or group, or crowd, but not be an identical Mao-suited clone. So innovation begins as variations on a theme, and grows into whole new trends, all without the benefit of much IP protection.
It's an interesting story and challenges us to remember that most of what we consider today to be great works - from the plays of Shakespeare to the sculptures of Michaelangelo - were created in eras when intellectual property protection was unknown or much weaker. Remembering that, we have to wonder whether IP protection truly serves to promote innovation, or simply to promote profit on innovation. Both are important, but they're not the same thing and that's worth keeping in mind.
Who, sadly, deserves it. This is sad because I used to like Lanier. Back in the ancient days, when rocks were soft, I did a little work in virtual reality. I respect the pioneering work that Lanier did in that field. Sadly, he seems to have turned into a cranky old damned-kids-get-off-my-lawn type these days, trading on his past good work to sell books about the impending collapse of things he cares about, and peddle nonsense in major magazines.
Lanier's piece is an excerpt for his latest crank manifesto and it's just astonishingly full of wrong. People who are knowledgeable in one field are not automatically knowledgeable in others - as I so often prove. Here (and apparently in the book this column is excerpted from) Lanier shows that he really doesn't understand economics. In order to understand just how badly Lanier gets it wrong let me point you to this that's-not-actually-true.-at-all. dept column from Mike Masnick at Techdirt.
It's long, but a worthwhile read as Masnick goes point by point over several of Lanier's key economic mistakes and shows why these mistakes lead him to be totally wrong about things like digital music. This reminds me of David Lowery, who at least has serious music cred but who also takes a nearly entirely wrong approach to understanding the future evolution of digital music.
Where Masnick scores his best point - and where Lanier does so much worse than Lowery - is where Lanier appears to want to rewrite history (Masnick calls him out for "lying") and that's really a shame. People may not be able to be expert in every field, but good smart people ought to know better than this.
Vernon recounts her own experiences as a self-published author, as an author who has worked with publishers, and as a comic artist. Although she resists drawing bigger conclusions I think her primary thought - there is on one true right way - jibes with what we've explored in this blog. We find ourselves still in the infant stages of both these kinds of publication and it's a mistake to draw too many definitives out of the air just yet.
Vernon's other point I noted is that fans are having a disproportionate effect here. We've noted how fans of some artists - most famously Amanda Palmer - have made the artist's efforts successful well beyond expectations, but what Vernon is talking about is how fans of a genre or artform can shape or stifle debate and particularly criticism. That's a serious problem, not just for the people being criticized or shut down but for our ability to judge, compare, and improve these infant forms.
Take out the word 'software' and I'd be in complete agreement. Bad software patents have gotten a lot of attention lately but rules for reforming patent examination and issuance need to be universal. You can't just single out bad software patenting practices and ignore errors if they are happening in hardware, biotech, etc. The EFF do focus on a problem that is endemic to software patents - overbroad claiming. In most other fields of patent arts it's necessary for the invention to be narrowly described and for the patent only to protect the specific claims. For example, if I patent a medicine to cure headaches I am given protection only on the specific medicine I disclose in the patent, not on the entire field of headache cures.
The post also renews EFF's earlier calls for source-code submission, with which I sympathize but I think will make more trouble than it solves. For example, what language(s) will be accepted? And how will you prove that two source code submissions are or are not equivalent? I haven't looked lately but I think proof of program equivalence is an NP-hard problem to solve. Really, though, you don't care about the code. You care about the algorithm the code implements, and we have some pretty well-understood ways to describe algorithms without reducing them to specific code forms. Yes, it may take a certain level of skill to understand non-textual algorithmic representations but we ought to expect the examiners of software patent applications to be able to read those, just as we expect other examiners to be able to read mathematical equations, or chemical reaction formulae.
Thayer wasn't happy about being asked to work for free, and posted the editor's request along with some heated response, highlighting his career as a professional journalist not to mention his need to pay bills, feed his children and so on. In general, Thayer noted, "[I] am not in the habit of giving my services for free..."
Thayer's public scolding brought a number of responses, two of which I want to visit, and to draw parallels with other things here and elsewhere. First up, Cord Jefferson wrote a piece for Gawker, which brings up an important point: who's really paying?
When people work for free, particularly in businesses like writing, they are often able to do so because they have other resources they can draw on. A "day job" or friends and family can provide the financial resources necessary for someone who isn't able to get paid at writing to pursue that vocation. Crucially, external financial resources may enable someone to tolerate the zero- or low-wage situations that interns and freelancers find themselves in and that then lead them to the higher-paying or even salaried opportunities. Jefferson points out (I think correctly) that this unacknowledged dependence on outside resources leads to a self-selection process whereby people who have access to those resources (coarsely, to a rich family) get those opportunities whereas those who come from lower economic status are denied them. People in lower economic status are much more often non-white or single working parents - which is to say, women. Since they do not have the resource cushion to survive on the "work for prestige" rungs of the ladder they are thereby denied the opportunity that more well-off (and more often white male) people have. Thus the "work for free" regime acts to perpetuate racial and gender inequalities.
So far so good. Unfortunately the last two paragraphs of Jefferson's essay go off the rails as he chooses to misinterpret and attack Amanda Palmer and her TED talk. First of all, calling Palmer "wealthy" is almost certainly factually incorrect. But more importantly, Jefferson claims that Palmer's talk is promoting the ideas "...that artists should be willing to work for free." Say what? Certainly that's not how I or most other respondents I've read heard that talk, which seemed to me to be encouraging people to ask for things, including money.
Leaving aside the last two paragraphs, I also want to highlight the response from Ta-Nehisi Coates who happens to be Black and has the singular point of view of writing regularly for The Atlantic. Coates' reply column was titled 'Lucrative Work-for-Free Opportunity' and told his own story of receiving a similar offer to the one that offended Thayer. Coates was solicited by Matt Yglesias to write for The Atlantic in exchange for the greater exposure rather than for a by-the-word payment rate. Like Thayer, Coates was an established writer at the time and also like Thayer he was a struggling professional with bills to pay.
Coates took the offer, negotiating his ability to commit to what Yglesias wanted with his own need to publish his own things. He highlights the fact that this is common practice in the industry, but also calls Thayer's tactics (such as publishing private emails with names attached) into question. Yes, Coates says, it would be nice if the industry could provide more living-wage positions to alleviate the kinds of disadvantaged situations that Jefferson talks about. But it's also true that right now The Atlantic is employing more journalists than ever before.
Which leads to the point of this long-winded think piece: it's a continuation of our discussion of what it means to be an author in the 21st-century media environment. We've been conditioned to think of a "successful" artist as one who sells a million records or has a million followers/fans/readers/whatever. But if you price your offerings right (as Felix Salmon argues and I agree) then you don't need the superstar/megahit/blockbuster model to be successful. Palmer's Kickstarter gets mentioned for its dollar amount a lot - Jefferson highlights its dollar totals - but few people seem to notice that there weren't that many people backing it. A few tens of thousands. That's a highly replicable model - at least much more replicable than the blockbuster/megahit model.
The challenge is that making this model replicable requires new ways of business. As Palmer and others have said, this model works best if you are an extrovert. If you are comfortable asking for money, asking for crash space on tour, asking for a loaner piano to practice on, asking for a stage prop to be delivered, then you can move faster and get more done - at the 'cost' of intensive fan service. Not every author or artist is comfortable doing that, but that's OK. It's not a flaw in the model, it's a business opportunity.
Filling this need means we'll see the emergence of a new class of intermediaries. Just as many successful authors today have "web goblins" (as I think Neil Gaiman calls his Webmistress) or other staff who maintain their online presences, other artists are going to need social media intermediaries to handle that fan service. This is no different from the need authors have for traditional literary agents or performers have for tour managers. Performing is a business; people in business hire out the parts they can't handle themselves. Some of those hired people are called things like 'accountant' and some are going to be called 'twitter wrangler'. Shy performers (writers, artists) will have more need of these people than extroverts but that's not a fatal blow. Sometimes shy performers will have to get by doing things they're not good at because they can't afford to hire people, just like musicians starting out today often have to book their own shows.
Or maybe these artists will learn to ask, and somewhere within their few thousand fans will be someone who knows a club owner and can book a gig. That fan may even do it for free because, after all, there is something to be said for prestige.
(I am indebted for many of the ideas in this post to a fine group of savvy friends, many of them writers in their own regard. In no particular order thanks to JC Chatelain, Fred Barrett, David Weinberger, John Sundman, and Joe Mahoney. You should buy their books.)
Salmon comes in for a mention in the talk, but his reason for posting it is because he wants to talk about the same things that Palmer talked about: how do you convince (not force!) people to pay for what you can offer? This is the flip side of his first column about how to package your product so that it diffuses out to the appropriate audiences. The payment side requires that people - as Palmer describes - overcome a certain shame in asking, and develop a level of trust in themselves, in their audiences (fans, readers) and in the relationships that can be built. Salmon points out that the publishing business has been frankly awful at this, though he shares Palmer's sense that Twitter may create a fundamental change there.
Salmon talks at length about the various models most in use today and argues that there are no sharp necessary distinctions between such things as paywalls and tip jars. In particular, as an economist or a businessperson you might want to try to compute the relative merits or likely payoffs of different models but that's likely an impossible task. What you need to do (like every business) is try to match up your supply and demand curves and make them meet at a point you can live with.
How long you live with it, though, is another problem entirely. Salmon points out that high (or pricey) paywalls may generate more short-term revenue and look better to the current bottom line, which is great if you're trying to pump up your stock price or make yourself look like an attractive buyout target. But they may be killing you long-term as your current readers die off or move on and your paywall not only shields you from those who want to rip off your content, it also makes you invisible to new people who are searching.
This matters because you're probably not talking about reaching audiences of millions or even hundreds of thousands. Palmer's fan base is probably in the tens of thousands and that's probably about the right size, for her. Salmon notes that the Internet "...enabled smallish numbers of people to pay modest amounts of money..." and that can add up to a sustainable model. This is, I think, the answer to the question I started gnawing on in January: how many people can be counted on to sustain a writer?
The answer is "probably not a lot, but that's OK" because if a few tens of thousands of people can be enough then there's a lot more subscriber base to go around. I'm trying my own little personal experiment in this area, seeing how many Kickstarters I feel comfortable backing. Right now I think my appetite is something like 1 or 2 a month at probably $20 or $25 each. We'll see how it goes.
Pretty much ever since she put her Kickstarter in motion a bit under a year ago one lingering question has been whether this sort of thing is unique to Palmer, or whether there's something reproducible in this experience. Although it's not framed as such, what I hear Palmer saying in her talk is "Here is how I did this and here's what you can try, too."
It's not about the details (which is good and right for a TED talk) - it's about the philosophy. Although the talk is titled "The art of asking" and Palmer talks extensively about her experiences asking, the secret sauce for me is in her discussion of trust. You could equally well title the talk "The art of trusting" as she talks about the degrees and kinds of trust she has in her fans and how that affects what she does with her music.
In particular, she says she never tried to "make" people pay for the music; she asked people to pay and as she says,
When you connect with them, people want to help you
Connecting isn't easy, particularly if one is not a naturally outgoing or gregarious person. Neither is trusting. But both are skills that can be practiced and if anyone is going to replicate the AFP model, they're going to do it using huge elements of connection and trust.
I'm trying to remember how long ago it was that Cory Doctorow wrote, "Giving my stuff away is selling the hell out of it" or words to that effect. (Actually, I don't have to remember because the Internet remembers it for me.) The notion that giving people something for free would entice them to pay more is as old as coinage, I believe.
For a long time the notion of giving your stuff away was buried from mainstream sight. Buried first under the glare of celebrity/blockbuster/mega-hit productions in which corporations made stars of people and shows and books and things for which people paid ever-increasing prices. Then it got re-buried under an avalanche of FUD about piracy and sharing.
But of late the notion of free is making an important comeback. In gaming, there's an entire genre of "free to play games" in which you get the game for free and pay for things you want related to the game: cosmetic items, power-ups, unlocks of special features, more capabilities, etc. Authors and musicians and other creators have recognized the power of giving their things away to connect with audiences, build loyal fan bases, and maybe put up a tip jar so people can pay if they think it's worthwhile.
This week, under the title "How to get people excited about education", Felix Salmon posted about what I would call the economics of some of these freedom-driven models. In particular, he talks about the spectrum of education experience that ranges from massive open online courses (MOOCs) to individualized, in-class direct education. His argument is these are complementary, not competitive products. Giving away your lectures via YouTube isn't going to cut into your enrollment, he argues. It's going to build your brand and name and value and while it filters out those who don't have the drive or money or time to sit through intense graduate-level education courses, it's also going to select for the people who do have those things, and bring them to you.
He points out that the same model of increasing yields as you increase costs can be made to work in other areas - his second example is about the Metropolitan Opera and he concludes that,
...the more you give such things away, the more demand there is for the very expensive live product
Yes, exactly. Salmon calls these different offerings "diffusion lines" as in different ways you get ideas and content out to people. And he argues that this kind of thinking can be the basis for what I would see as a broadly economically sustainable set of marketing and business models.
While we wait for a decision on Kirtsaeng a couple of interesting news items have crossed my radar and I wanted to write about them together, as they both relate to the marketplace for used electronic goods, and the non-trivial relationship of those goods to piracy. This is a bit of a long walk but I promise it all ties together.
The first item is the reporting around Amazon's recent patent announcement. This isn't an actual service that Amazon is providing, or has even stated that it's going to provide. Instead, it's a patent they were awarded at the end of January that purports to cover a marketplace for digital objects. Putting this out to the news wires is clearly them floating a trial balloon.
The patent (#8,364,595) involves creation of a "personal data store" for the digital objects. While you own the object you get to download or stream it up to a certain number of times controlled by DRM or policy. Since there's already a mechanism in place to limit your access, it's pretty easy to say "OK, I'm done with this object and no longer want it." At that point, your remaining number of accesses gets set to zero, and you can dispose of the object by selling it to Amazon (or whoever licenses the patent) for some amount. The used-object vendor can then either apply some more DRM/policy to give the next owner some more downloads or streams, or just keep the original counter going. Presumably when you buy a used digital object there would have to be some disclosure that your use of it was limited.
His objection is that Amazon would be making money off the used e-book, but he wouldn't. I find this baffling. To my knowledge, Scalzi doesn't object to used bookstores for physical books. I suspect he's also purchased a used CD or LP in his day, as well. As far as I know, in those cases no additional money is flowing to the original author. This, after all, is the whole point of first-sale doctrine, which is at the heart of the Kirtsaeng case. I confess I can't see any significant difference between the e-book and physical book situations. In fact, it's quite possible to buy used physical books right now through Amazon. It just so happens that Amazon has things set up so it's a front for third-party sellers, but it gets money on every sale and in principle nothing stops them being originating sellers. So what's the big deal here?
Other people have a different attitude toward used digital goods, and piracy. Take, for example, games. Right now we're at an odd place in the console gaming industry in that all the popular consoles are using old-generation hardware. New machines are on the way: Microsoft and Sony have both shown previews and talked about their upcoming devices. Both look fairly similar from a hardware perspective, but there's a potentially huge split coming in how the next generation of consoles treats used games.
For a while now there have been rumors to the effect that the next Xbox will try to block users from loading used games whereas the Sony console will allow it, or vice versa. Naturally, this is upsetting to places like GameStop that make a great deal of money from reselling used games. In a speech to the Goldman Sachs Technology and Internet Conference, GameStop's CFO Rob Lloyd showed his company's research that indicated a solid majority of consumers were opposed to having used games blocked and wouldn't want to buy a console which did that. His research also claims that most used games are older titles, with the clear implication that the used market isn't cutting into new-game sales, since the volume of game releases often means that all but the biggest-selling titles are cleared from store shelves within 60 days.
In fact, the makers have taken the unusual step of talking directly to people who have illegal copies of the game, asking for feedback, mentions in tweets, and upvotes on Steam's Greenlight, which is kind of Survivor for indie games. If this works out, then some people who pirated the game will like it and buy a copy. Some people will talk about it on Twitter and elsewhere, which is free publicity. And some will upvote it, which means more people see it on Steam and buy it because it's cheap there.
And that brings me back around to the console/used games issue. Steam, like Amazon and unlike GameStop or Walmart, doesn't have shelves to empty. Games stay there virtually forever. So long as the maker still exists to provide more license keys, Steam can sell additional copies. Steam has established itself as a place where older games are available at steep discounts. This begs the question of why would you buy a used game when you can expect to get it new from Steam (or Green Man Gaming or similar site)? It's entirely possible that the ubiquity - the effectively infinite shelf-life - of downloadable games will do more to kill the used-game market than anything Sony or Microsoft do.
And that, at last, brings me back around to the "I hate reselling" attitude that John Scalzi expressed above. Because here's the thing: if you can make a game for a console that blocks used games or you can make a game for a console that allows used games, from which you don't profit, which would you do? Well, if you think you'd lose sales to used games then you might want to go with the locked-down platform, just as Scalzi would have you go to piracy before resale. Except you may lose more original game sales because people might not buy that locked-down platform in the first place, as GameStop is arguing.
But if you believe that your game will always be available (e.g. through Steam) to people who want it then you can afford to wait for the less-popular console to gain market share. And of course there's a knock-on effect in that if people see more good games being released only for the locked-down platform they may just swallow hard and buy that platform anyway.
The big deal, then, is that it's not as simple as "Amazon reselling used stuff = bad". It's that we're witnessing a rapid evolution of marketplaces and business models with lots of players jockeying for position, all of which makes me hope even more fervently that SCOTUS doesn't "drop the banhammer" as we gamer geeks say.
Yesterday, in a posted preview of his talk for O'Reilly's TOC conference, Cory Doctorow looks at the question of why writers get so little. The answers, as you might expect from Cory, revolve around markets, business structures, piracy, and the complex web of incentives that are created by laws and traditions. It's not entirely accurate to say authors get paid poorly because they've always been paid poorly but it's also not entirely wrong - there has likely always been more material looking to get published than there have been spaces for publications by professional imprints.
In an era of (potentially) oversupply, the problem faced by the 99% of writers is breaking through. Getting noticed. Everyone knows about JK Rowling or Stephen King or Neil Gaiman now, but we don't know about the next Rowling, King, or Gaiman. Somewhere out there today are writers whose work could be as popular and game-changing, but that writer can't get noticed, can't get their first novel published, can't get out of the mid-racks, can't whatever it is that breaks a writer through to prominence. Or to the point where they reach their ideal audience, even if that audience isn't mega-millions best-seller sized.
Except now there sort of is. It's called the Internet, and self-publishing, and social media. It's a model whereby creative types can go through multiple channels to reach potential readers, build their audience, and start to make some money. In this model, two things are true that aren't true in other models. First, illegal copying doesn't hurt, it helps, and second regulation that tightens controls on the Internet and its freeform communities are harmful.
The first PBS Off Book episode of 2013 takes on this notion full force. Called "The Art of Creative Coding" it examines at high speed a few of the prominent points in a phenomenon that is part commercial enterprise, part open-source development, part art movement, part inspirational mass volunteerism. The notion that ties these together is that openness, sharing, and exchange are not accidents - they're fundamental primitives of the language. Take those away and the entire thing ceases to exist.
Last month, Steven Levy had an extensive piece in WIRED with the title "The Patent Problem." Levy is a long-time tech journalist who's probably best known for his in-depth books on tech and culture, starting with his Hackers up through last year's paean to Google called In the Plex.
To my knowledge, Levy hasn't written much about patents or IP before, but he brings his exhaustive attention to bear in this article. It's long, and I won't try to summarize it - you should read the original. Levy doesn't fall into the trap of assuming there is a single problem with patents, despite the article's title, that would be amenable to a single solution. He touches on several things including the changes to what can be patented (so-called process patents), the fact that companies are deliberately abusing and overwhelming the USPTO with crap, and particularly the proliferation of entities that view patents as weapons or money-making machines. All of these factors have combined to create a potentially very profitable business model around what are called (politely) "non-patenting entities". These companies make no product, but have a business around owning patents and suing people who are claimed to infringe them.
The less-polite name for these NPEs is 'patent trolls' and trolling is a major focus of Levy's article. He notes that NPE-originated litigation is increasing rapidly, that courts have often favored existing patents with a presumption of validity, and that NPEs can engage in a variety of asymmetric warfare. Since the NPE makes no product it can't be counter-sued. The best that a defendant can muster would be a challenge to the patent's validity or scope.
Levy deploys a reasonable set of statistics to back up his proposition, though I would have liked to see more. He does admit that it's hard to distinguish a troll from a legitimate NPE that is protecting the interests of companies who license their portfolios. Certain trolls have grabbed a lot of headline attention, but that just makes them bad examples, not necessarily a valid majority or trend. That said, I think the key point of the article can be soundbit:
Instead of promoting innovation, patents are used as a weapon to stop it.
This difference goes back again to the language in the Constitution that allowed Congress to establish patents in the first place. I've been reading more in Copyright Unbalanced and one of the points that the authors in that book make repeatedly is that there is nothing natural or required about patents. We've had them for so long it's not surprising that people think they're a necessity, but in fact they were invented for the US as part of its founding documents not because anyone felt that individuals or corporations needed to enrich themselves, but because it was felt that having government-granted monopolies of this sort would lead to a better society.
What Levy is saying, I think, is that present practices around patents are directly attacking that feeling, which is still widely shared today. Unfortunately he has no more solutions to the problem than others who have pointed it out before. I continue to believe that focusing on the courts side of things is the wrong way to go. By the time a patent winds up in court it's too late to do much but apply another band-aid. What's needed is reform at the application and issuance stages. Not to put too fine a point on it: if you keep the crap out of the system, then the system ought to work better.
Called Copyright Unbalanced, the book attempts to capture current thinking from conservative and libertarian writers on how current US copyright law has gone awry and what might be done to fix it. Solutions include fighting against "crony capitalism", rolling back criminal penalties and forfeiture in copyright cases, and returning to a more originalist vision of copyright, in which the monopoly is given to serve a public good, not to enrich corporations or individuals.
It seems to me that - as happened with the opposition to SOPA - the current utter disaster that is our copyright system is a place where major elements of both left- and right-wing social/political thinkers can come to useful agreement. Liberals aren't uniformly opposed to big government, but tend to favor open intellectual exchanges, which current copyright regimes are crippling. Conservatives oppose government's continual expansion of its powers and certainly the repeated extensions of copyright's scope and reach fit that description. And libertarians often seek rational bases for restraining governments' powers; in my opinion the current management of copyright has strayed so far from its Constitutional intentions as to be irrational. Thus I think we need to cooperate on finding ways to reign things in.
However, as Jerry Brito comments in the linked entry above, this need is likely going to fall into the same generational gap as opposition to SOPA did. The older, established parts of both Republican and Democratic parties are beholden to the entertainment industry for dollars and are locked into old-model ways of thinking. The younger and more dynamic parts of the parties (e.g. techno-libertarians and Internet/social media liberal-progressives) will find themselves fighting the party elders on this issue. And as I mentioned in the entry earlier this month I am sadly lacking in hope that the second Obama term will be any better in this regard than his first, no matter how much he used the younger parts of the Democratic base to get re-elected.
In his blog post today he takes on the current high levels of patent and copyright legal activity, the ills of which have been amply documented. He focuses on what he sees as "extortion" in which the threats of patent lawsuits and copyright infringement (DMCA takedown) notices are used to harass, suppress, and otherwise impede actual work and innocent people, as I noted again last month.
In response, Weinstein suggests putting in place fairly draconian penalties for abusers that would raise the cost of misuse of the system, including large fines and other unspecified penalties. Weinstein suggests that some unspecified "courts or other designated third parties" would make determinations as to what penalties and when to invoke them.
As sympathetic as I am to the core idea - abuse of the copyright and patent system ought not to be free and easy - I am concerned that adding more costly litigation and other processes to the mix will not solve anything. Severe penalties ought to serve as a deterrent, but in practice they do not. For example, Apple is facing the possibility of a patent-related injunction that would block sales of major product lines. This does not deter Apple; instead, it just means that more court cases will be dragged out for more years. I imagine that the lawyers involved will be enriched, but probably nobody else. Lest anyone think the Apple case is unique, I remind you that in August, the Lexmark case popped up again. That case has been going on for eight years now, and there is no end in sight.
Protracted litigation is always bad for those without money, which is to say exactly the small-scale entrepreneurs and individual creative types who are suffering the most from the current copyright and patent insanity. A related notion, loser pays, has been proposed and is used on a small-scale basis. It, too, seems not terribly effective but perhaps that's because it needs to be tested at a larger scale. Other solutions, including compulsory licensing and patent invalidation, could also play a part in restoring sanity.
Nobody wants right holders to be stripped entirely of their ability to defend their limited monopolies. Some level of balance needs to be re-established, making abuse costlier without ruining the entire value of a copyright or patent. I just don't think nukes are going to help.
To begin with, you should know that Phipps is himself a strong proponent of open source development (his column is called "Open Sources", for example) and a recent opponent of software patents in part because they interfere with open-source development. So when he says there might be something good in the legislation we already have around software patenting my eyebrows tend to go up.
According to Phipps, the working paper titled "Software Patents and the Return of Functional Claiming" from Lemley (SSRN link here) will propose that the problem with software patents is what lawyers tend to call "claim construction." That is, the problem is not with what's being patented (software) but with the things to which the patent is supposed to grant a monopoly. Badly constructed (overbroad) claims attempt to protect not the (software) machine, nor the steps (algorithm) it performs but the result of executing those steps on that machine - the goal.
Lemley's argument (and I haven't read the paper yet, so take this for what it's worth) is that the USPTO is not correctly applying the already existing Patent Act of 1952 and if in fact the Office would do that, then it would reject these patents with overbroad claims, or at least force patent applicants to redraw their claims more narrowly. That wouldn't immediately solve everything, not least of which are the ongoing problems with disgracefully shoddy lack of prior art inclusion in software patents and the pervasive confusion over sections 101 vs 103 of the law. But it would be a huge step forward.
One final caveat to keep in mind here: Lemley's thesis is in a "working paper". That means it hasn't yet been subjected to the kinds of critical review that more formal publication might require. I suspect we'll see people who believe that Lemley is misinterpreting the 1952 Act. Still, it's a blessing to have fresh ideas for improving the situation, particularly ideas that don't require radical reforms or rafts of new legislation.
Over at Boingboing, Cory Doctorow has a long paean of admiration for David Byrne's new book "How Music Works." Like me, Doctorow is a fan of Byrne's thinking as much as his music. The review describes the book's breadth and depth and positively glows with admiration for the insights Byrne has accumulated over his career, with respect to such issues as how physical spaces and production formats can have gigantic impacts on the artistry that gets produced.
I confess that I had not planned to read this book soon, having added it to my holiday wishlist. Perhaps I'll have to revise that plan.
Of course, when the US says this sort of thing, they're inevitably thinking of things like the actions by dictators-we-no-longer-support in other parts of the world to sever their countries from the Net in order to further hide repression. I'm sure that the infringements of ACTA and its devil-spawned ilk don't register as human rights abuses. The Netizen project minces no words in this regard, calling out ACTA and the TPP among others and pointing out that Netizens in the US are as divided as the international community when it comes to the hard details of what exactly is meant by freedom and human rights online.
The page describes several ongoing efforts, including competing visions of what a Declaration of Internet Freedoms or Bill of Internet Rights might look like. Messy stuff, but that is, as they say, "...why we are so heavy on the public participation aspect." Maybe the US government could take some notice of that, too.
I last wrote about this brewing storm in April, when it looked like outrage at astronomical bills university libraries have to pay might finally cause some changes. Instead, it appears that the British have made a bold first move. The notion is simple:
[R]esearch papers that describe work paid for by the British taxpayer will be free online for universities, companies and individuals to use for any purpose, wherever they are in the world.
That may not seem like a lot, but it's a huge deal and if other countries follow suit it could be an even bigger effect. It's not cheap - the government is estimating that UKP 50 million/year will need to be paid out of existing budgets to fund this publication. Of course, that compares favorably to the current UKP 200 million+ that research libraries are paying, but it's not that easy to shuffle money from one pot - the library funding generally coming from things like University budgets and endowments - to the other. Money that scientists have to pay to publish their own work (including servers, bandwidth, staff, support, etc) is money that then isn't available to spend on lab costs, grad students, conference travel, and the other essential components of actually doing the research in the first place.
The final details of the model are not yet nailed down and will probably be fought over at length. Journals and their publishers will of course want to retain control and the free labor system that they now have. Academics will (dear gods, FINALLY) have to re-think how publication and tenure are so tightly bound. The Guardian article describes two competing models, dubbed "gold" and "green", for how research can be opened up. The gold model favors publishers, generally; the green model favors the free and open advocates. It also seems like the new online/open journals such as PLoS aren't being heard here, which is something of a shame.
But still, there's a lot of time to work out how it's going to work, and as Professor Adam Tickell, of Birmingham University is quoted, the UK only produces about 6% of the world's research publications. That means at very best we've still got 94% to go.
Jeff Price of Tunecore - a business based on helping individual artists release and sell digital music - notes that Lowery is ignoring how badly musicians had it, before. Price also disagrees with just about every factual number in Lowery's post, pointing out that while it's true that labels are making less money, more money is flowing to the artists. Sale for sale that's clearly true - what's less true is what the overall picture of the industry is now versus in the big-label era. There just aren't good independent data available for an apples-to-apples comparison.
Unfortunately, much of the response to Lowery has been of the "quit whining" variety. While I sort of sympathize with the idea that it's important not to shed too many tears for old dead businesses it's also important not to lose sight of the fact that what Lowery was "whining" about was the self-confessed theft of thousands of song copies, many of which could easily be paid for via a few clicks on iTunes or Bandcamp or the artists' Web sites. Jonathan Coulton is noted as responding about how great it is that so much more cool stuff is now available free. I agree, that's an awesome thing but it has to be the artists' choice.
I love free tracks. My disk is full of freebies I've gotten from performers I love. But it's also full of tracks I bought from them. That's the choice I get: pay for what they sell, or don't. Their choice is to sell, give away, or use some combination/new model. Again, I feel this is an important point that is getting ignored because of how Lowery constructed his response.
As several of the respondents note, simply being a musician is no guarantee of making even one thin dime. If you price your stuff wrong, or nobody likes your stuff, or whatever the factors are, then you're not going to make a living. Maybe you have to bust your hump for years until one day dawn breaks and money appears. Nobody owes you money because you're making the art you love. But I don't think that's really what Lowery was trying to say.
His initial target this time is Emily White, an intern at NPR's "All Songs Considered". Ms White noted that she has over 11,000 songs in her music library, yet has bought only 15 CDs in her life. The clear statement is that she acquired the vast majority of that music illegally. White is just the launching point, though, as Lowery continues to rant about the "Free Culture movement", which he believes is the propaganda arm of largely unnamed "technological and commercial interests."
If this is starting to sound like looney-up-the-creambun-and-jam stuff to you, then welcome to the club. This is really a shame, too, because Lowery continues to have really important and cogent points to make. It's just that they get lost in the froth sometimes. Let me focus on what I think are the important bits.
Lowery notes that the majority of record companies do in fact pay their artists. Despite numerous well-publicized examples of despicable behavior, it's generally true that buying major label-produced songs or CDs will cause artists to get money. I don't buy major label-released CDs myself, but that's for personal reasons. Whether the CD is major- or indie-label released, the artists (and their support crews, engineers, etc) will get some money from a purchase, whereas downloading 11,000 songs and not paying for any of them will cause no money to flow.
He also notes that the vast majority of artists are really poor. This is indisputable and a seriously bad situation - those of you who read this blog regularly have heard me banging on and on about how artists (of all sorts) need to get paid. However, the fact that musicians don't generally make a good living has been true for at least the last five decades and the advent of digital music hasn't changed it and shouldn't be blamed for it. Not to mention that the "critically acclaimed but marginally commercial artists" Lowery likes are that way because their labels dropped them like hot potatoes the instant their sales dropped below some accountant's decision point. Again, that's been true for a long time - if you want to blame someone for that, blame Reagan-era changes in depreciation tax credits. More or less overnight it became incredibly expensive for record, book, and other makers to keep inventories of things around. Either your album was a hit out of the gate or it got scrapped (or in the case of books, pulped). Again, all this predates digital music by a long time.
Lowery has obviously been affected by the (self-inflicted) deaths of musicians close to him. How that is connected to illegal downloading is left to the readers' imagination. Likewise, he has a great idea: pay $18/month and get the music you want. Except he isn't clear on how his theoretical model would work better than the other subscription services that have so far failed to gain significant traction (in part due to labels' unwillingness to license content), or how a new service would funnel more money back to musicians who aren't getting (he feels) enough from existing services like Spotify.
Lowery points out that services like Pandora and iTunes have gone a huge distance toward making music easily accessible. The user experience of these services is way the hell better than things that came before. So why isn't Emily White, and generally her peers, using this service? Lowery's answer has to do with cultural brainwashing and rants about Kim Dotcom, which is a shame because it's a really good question. I've been thinking for at least the last 6-8 years that if the user experience was good enough then people would prefer the higher quality and convenience. I make my living doing user experience and I believe deeply in the power of a good experience. Have I been deluding myself?
I might be wrong, but I won't find out whether or why by ranting about Google, Viacom, Kim Dotcom and pretty much everyone else on Lowery's hate list. I hope White will respond - it's hard to be called out by a major industry figure for something she seems to know she's done wrong. And, to his credit, Lowery is very kind toward her personally but his adamant angry stance may not invite the kind of response that would enlighten us.
Finally, Lowery cites unsourced figures again claiming that the music business is in terrible shape. The 90/10 rule has applied far longer than digital music has existed; if it's now the 99/1 rule instead of 90/10 you need to show why - again, see Drew Wilson. Lowery's experience isn't in question here - the question is why he's going so far off the deep end at points.
The book focuses on the film industry in the US, starting from its earliest days. It is mostly concerned with formative battles over intellectual property (primarily copyright) in the early and mid-20th century, devoting only the final chapter "Digital Hollywood" to the age of the Internet and key battles such as the DMCA/safe harbor/fair use exemptions. He also keeps his eye pretty strictly on the film industry, and its spawn into television and recorded movies. This is, then, a work largely of cultural and political history, and is extremely useful for anyone who wants to understand how we got to where we are.
Decherney makes a couple of key points throughout the book that stuck with me. First, "piracy" isn't new. Early film pioneers - including Edison - did things like copying others work in ways that would now be regarded as violations. "Piracy" is a loose term, then, that Hollywood has always used to mean "things being done by people we do not like who are not us." - even if those are things that Hollywood itself was doing just a few years ago. Once it's being done by Hollywood the act is no longer piracy and that term is then shifted and used to refer to new actions.
Two, he notes that Hollywood has long dreamed of a realm of total control. The major campaign within the last 20 years to turn the "play" button into a "pay" button really originates over a century ago. Through litigation, Congressional lobbying, and business decisions, Hollywood has tried to steer itself into this sort of cultural/legal monopoly. With the DMCA they have gotten closer than ever before to this goal but they've done so only by handing massive amounts of control to third parties - generally tech companies like Apple - who have used monopolistic legislation like the DMCA to attain their own total control.
Decherney also does a good job of showing how much of what has gone on has been a combination of careful planning, incoherent response, and internal division. For example, the infamous Betamax case was not pursued by Hollywood monolithically. Hollywood has simultaneously pursued court decisions and ignored them. And different studios (and the auteurs with whom they must deal and often fight) have responded differently to fringe copyright activity such as fan films, parodies, and homages. The result has been to create a climate of uncertainty in which new gatekeepers such as film-festival promoters and insurance companies have been forced to play guessing games about what will or will not be treated as infringing and subject to lawsuits or cease-and-desist orders. With uncertainty came self-restriction, a regime that new mass-creation technologies like YouTube has exploded, to Hollywood's deep panic.
I have two minor quibbles with the book, which I hope Prof Decherney will change in a future edition. First, he does 'the professor thing' too often. A paragraph will begin with a question, which the body of the paragraph then answers. This comes across as pedantic. I think Decherney's prose is interesting enough to stand on its own and he could remove the rhetorical questions entirely.
Second, the book is extensively footnoted, but the notes are purely reference links. Reading them is as dry as reading the notes on a court decision. I love the little minutiae that some authors put into footnotes. There's a wealth of trivia, anecdote, and digression that can't be fit into a coherent main-text narrative but still makes for good reading. I hope Decherney spices up his future end-notes with some of the good bits that didn't make it into the main text.
In conclusion: recommended reading for good context and understanding.
Information wants to be free. Information also wants to be expensive. Information wants to be free because it has become so cheap to distribute, copy, and recombine - too cheap to meter. It wants to be expensive because it can be immeasurably valuable to the recipient. That tension will not go away. It leads to endless wrenching debate about price, copyright, 'intellectual property', the moral rightness of casual distribution, because each round of new devices makes the tension worse, not better.
David Lowery is not happy with the state of digital music. In this post, derived from his talk at SF Music Tech Summit, he goes into great detail on why he thinks the current model of music making and distribution sucks, and is a worse deal for musicians than the previous system (the old boss).
The post is long on opinions, much of it personal. Lowery has a tech background himself, and has worked as a musician, sound engineer, singer, songwriter, promoter and producer. He founded Cracker and before that Camper Van Beethoven. He is an active participant in archive.org, where he has placed recordings of most of the live shows he and his groups have ever done. He's also worked in finance/economics, and wrote code for the company that became Groupon. Through these experiences he knows a lot about technology and how the nets work. He's also had his share of spats with the big music establishment, including ongoing lawsuits against two of them. He doesn't have the academic throw-weight of, say, a Drew WIlson, but he's painting the picture he sees and reasons from.
That picture is not good, in his view. As he sees it,
[W]hat we artists were promised has not really panned out. Yes in many ways we have more freedom. Artistically this is certainly true. But the music business never transformed into the vibrant marketplace where small stakeholders could compete with multinational conglomerates on an even playing field.
He also has some nasty words for entities we tend to think better of, claiming "Google date rapes the spirit of the law while keeping to the letter." He's got a lot of bile for the Future of Music Coalition, and particularly the EFF:
[I]t is nigh impossible for me to pursue my craft without enriching Apple, Amazon, Facebook and Google. Further the new boss through it’s [sic] surrogates like Electronic Frontier Foundation seems to be waging a cynical PR campaign that equates the unauthorized use of other people’s property (artist’s songs) with freedom.
That's true, but seems to be missing the point. Lowery is tech-savvy enough to know that there's a world of difference between a link appearing in Google search results and appearing on a form copy on a different site. People may find it (and it'll be interesting to see what happens when Google starts including crawls of the Chilling Effects site in its search results) but the alternative seems to be a 1984-esque regime in which one might or might know that some content might or might not have been taken down but we can't tell you what it is, never mind giving you the chance to contest it. Because we know DMCA takedown notices are never sent out maliciously, or in error.
But OK, let's jump back to Lowery's main point, which is that what we have today isn't working for musicians. He says that due to the ease of sharing illegal copies of recordings, "the 99% of the music business has been impoverished." He asserts that artists are spending less on recording now because they have less to spend, that more artists are touring and playing more shows, but for fewer people. Yes, there are a few stand-out success stories like OK Go, but they're the exception, not the majority rule.
Lowery admits that much of his information is anecdotal, but his anecdotes are collected from a pretty wide range of sources. He's not just taking one point and generalizing it out to the whole universe. He says that the reduction in time/money spent recording is the most telling trend:
[T]he only explanation for why artists are spending much less time recording is the obvious one [- they have less money to spend]. Occam’s razor. Every other explanation adds assumptions."
In addition to skewering a few of our favorite cows, he also hits on a couple of points I've made in other Copyfight posts: artists need to get paid, and that includes the large and often invisible team behind the guy in the spotlight. Digital downloads are not returning large amounts to artists. Gatekeeper companies, particularly Apple, are taking a big chunk of the dollars spent through them - in some cases a bigger chunk than a standard label would have taken. Tech companies are astonishingly hypocritical in the cavalier way they treat copyrights and the covetous way they treat their own patents. There's no doubt in my mind that the current state of affairs in digital music isn't great, and that we desperately need sustainable business models and fair methods of compensation. I'm just not willing to buy that the plural of anecdotes is evidence, and therefore illegal copying is the cause of all these problems.
As I mentioned, the column is quite long and I'm obviously cherry-picking a few points here. Go read the whole thing and see if I've summarized him fairly.
Unfortunately, he starts off by bashing Kurtz - whose work he admits not to knowing - for being successful. That sort of personal attack isn't helpful and detracts from the important objections LP is raising. So let's skip forward to the substance.
First, LP notes that the question at hand is whether people who enjoyed the Avengers movie would be willing to donate something like the price of a ticket to the Hero Initiative. This non-profit exists to "create a financial safety net for comic creators". Far too often, people in creative endeavors need help - the finances of writing, acting, drawing, or doing comics aren't always lucrative and sometimes people need help with medical bills or just plain old money for groceries. LP notes that this effort to get people to give money in association with seeing Avengers will benefit many people in the comics business, whereas Kurtz's post was narrowly focused on the Avengers' creators and Jack Kirby.
Getting to the heart of the creative issue, LP notes that Kurtz seems to be shooting a strawman of his own creation. Nobody is asserting "that Kirby and Kirby alone be compensated for his work on the characters." And in fact the more modern Marvel writers and artists who've worked on these characters over the decades since Kirby stopped working on them will not be seeing big payouts from the movie either. Most will probably receive nothing - though movie companies notoriously keep their payout sheets extremely close to their accountants' chests. Who actually makes money from a given movie can be hard to fathom, as the IRS itself has complained from time to time.
Still, take it as given that more people than Kirby have worked on Avengers and more people than Kirby who did such work aren't going to share in the movie's success. Thus, Kurtz's focus on Kirby is misplaced at best, and misleading about the important questions of authorship/ownership and benefits.
Finally, LP points out that issues of creators' rights are still present, still important, and still relevant for discussion. Kurtz's column contained more than a little disdain and, frankly, name-calling which I had omitted in trying to focus on the Copyfight-relevant parts, but LP doesn't hesitate to shoot back, and probably deservedly so.
Moral issues and intellectual property rights have always been oddly entangled, particularly in the US which does not formally recognize artists' moral rights in creations. Calling on Marvel to voluntarily recognize what would be thought of as moral rights is always going to rub some people the wrong way, but is a common feature of charitable efforts.
PvP also deeply embedded within popular modern mass fan culture. One of the main characters in the comic is a total Apple junkie, always buying the latest gadgets on the day they issue. The strip often centers on the gaming magazine business (PVP is a fictional game zine/Web presence) as well as the gaming industry directly. And Kurtz displays a "Joss Whedon is my master now" banner on the site's front page. So he's more than a little bit invested in comic culture and the movie that was written and directed by Whedon.
In this column he's responding to the idea that the Avengers were, originally, thought up in large part by Jack Kirby creation, and as. Kurtz says:
[I]n many comic book industry circles, there’s a lot of hand-wringing going on about how all that money is being generated by Jack Kirby’s creations and none of it is going to his estate.
The problem, as Kurtz lays it out, is that a great many hands have steered the Avengers ship, as well as the stories of its constituent member characters, since Kirby's days. It has been over three decades since Kirby last worked on these characters and Kurtz points out that the images and styles used in the movies are much more based off the most recent incarnations of the characters. Notably, the comic-book version of Nick Fury that is in new stories today was specifically modeled off of the visual appearance of Samuel L Jackson, the actor who then went on to play Fury in the movies.
This raises a difficult question. There is no doubt that a character called "Nick Fury" was co-invented by Kirby and Stan Lee. But the Kirby/Lee character was significantly different from the modern Fury. And it's not like the modern Fury was all that recent, either - the look was launched a decade ago. So who "created" this Nick Fury, and who should take part in the character's lucrative movie success?
Kurtz also thinks that those complaining about how Marvel is distributing the Avengers' windfall are living in the past. He argues that, like the Fury character, the comics industry has revamped itself. The abuses that were perpetrated against people like Kirby and other original creators in the 20th century are, he says, "a battle we’ve already won." Things are better now, and ire against Marvel is misdirected.
Like Kurtz I'm not a lawyer and I haven't yet read beyond the press accounts of the case. I point out this column because I think the case of the Avengers shows just how complicated creative processes are. Sometimes it's easy to say "yep, that person created that thing" and sometimes it's a whole heck of a lot more complicated.
The Mongoliad on offer here is a book - a collaborative work. But what's of interest to Copyfight is the structure and entity that produced this book. To quote Teppo:
[W]e formed a company whose goal was to realize a new paradigm in publishing methodology, and to promulgate an argument that transmedia empires could be built using small, highly agile teams that could shift direction quickly and efficiently based on customer need and reaction. Do more of what the fans like; less of what causes them to make the ‘meh’ noise.
She's also emphatic about another point, which you can read on the Kickstarter site: we lead, the media follows. If you're going to be successful in the independent model of the early-21st century then you make the news yourself. You do it by networking, word of mouth, taking things viral, making info in easily accessible places, in easily reposted (unlocked!) forms, etc. One way to look at this is as a failure of traditional media; another way to look at it as an opportunity for new businesses. There should be people out there setting up companies that are devoted to helping people like Palmer do this because, really, you need some kind of management when your sponsor base is over 10,000 and growing.
I thought this bit was particularly apropos:
I've seen people complaining that this is easy for me to do because I got my start on a major label. It's totally true that the label helped me and my band get known. But after that, the future was up to me. It bought me nothing but a headstart, and I used it. I could have stopped working hard and connecting in 2009. If I'd done that, and then popped up out of nowhere in 2012 to kickstart a solo record in 2012, my album would probably get funded to the tune of $10k...if I was lucky. There are huge ex-major label artists (pointless to name names) who have tried the crowd-funding method and failed dramatically, mostly because they didn't have the online relationship with their fans to rely on.
I was sadly amused to revisit the column today in preparation for writing this piece and find on the page the notice that "Comments on this page are now closed." I'm trying to formulate a coherent response that is not laughing out loud at the foolishness and backward-thinking-ness of a site that would close comments on a column, let alone close comments on a column that's not even a week old.
Dear Guardian, comments are lifeblood. You want them. You need them. See above, where I spend my time weeding out spam comments? That's because I treasure the real feedback I get from readers. I love that my first tentative query about Createspace is one of the most commented-on pieces on this blog, over four years later. Do you think Amanda Palmer would ever close comments on something she posted? I think not.
Get with the program, Guardian. You're not doing yourselves, your readers, or your writers any favors here.
In her letter this time she points out that even though the Kickstarter has blown the roof off its fundraising goal that still only represents a few thousand fans. Any major-label release that sold that few copies would be considered a flop, and the artist would make no money, never mind that a major label couldn't possibly manage to put out the kind of complex multi-pronged project that Palmer is fundraising for.
In response to yesterday's post, Luis Cruz asked the question of how well this model would work for someone who isn't already established with a fan base. It's a fair and unfair question at the same time. The answer is we don't really know - there are thousands of people trying to find their way through Kickstarter, maxing out their credit cards, busking, playing open mic nights, etc. A few will make it via each of these routes but most won't. But they don't have a lot of alternatives - the number of acts that will make it via the major-label last-century model is also minuscule.
Each year we see a few creative types that seem to break out (Jonathan Coulton, Felicia Day, etc.) and each has a unique path to present success. There doesn't seem to be a good general model, but I think we're starting to see certain elements in common. For example, intense fan service, a hawk eye on the business details, and a willingness to roll with the punches and adapt all seem to be necessary ingredients. Palmer's success didn't come overnight - Dresden Dolls formed in 2000 I think - which means she's busted ass for over a decade now. What she's doing now would not have been possible in 2000 but that says more about the Internet age than about Palmer.
On the Microsoft/B&N partnership, the blog entry by Tobias Buckell is typical of the reactions I'm seeing. Buckell's point, which I think is spot-on, is that this is not at all about a Windows 8 Nook. It's about the merging of two software ecosystems and the possibilities that opens up. And also that neither big entity seems to have concrete plans for how that's going to happen. Hell, they couldn't even figure out a real final name for their joint venture. This makes me think the whole thing was rushed and not necessarily well thought-out.
Above I mentioned "rolling with the punches." In particular I think a key element of this is being willing to re-invent one's self-conception. Day moved from doing standard television shows to running her own YouTube channel. Palmer has always had theatrical elements as part of her musical acts, but lately she's added spoken word, poetry, and art/photography. What makes me doubt that the MS/B&N merger will work is that I can't see either company pivoting quickly enough to re-imagine themselves in new ways. But a big bankroll buys you a lot, not least of it time, so I'm not willing to write them off entirely just yet.
Stross has been careful to state that he had no insider view that Tom Doherty Associates - the publishers who put out the Tor, Forge, and other lines of books - were going to make a big move to drop DRM. But even without that knowledge, Stross put together what he saw as the business case for getting rid of DRM. Long-time readers here will know that I am a big fan of the creators should get paid viewpoint, but that we also share the view put forth by people like Cory Doctorow that the actual business effect of DRM is not to control illegal copying, but rather to hand the manufacturers of ebook readers a stranglehold on everyone and everything.
It's not going to surprise any of my readers that Stross concludes that the only way to break Amazon's stranglehold is to drop DRM. In a DRM-free world, you can buy a book that is readable on a Kindle and on a Nook and on an iPad. Thus, it doesn't matter if you buy that book from Amazon. It may be the case that Amazon offers you a discount, or a frequent-buyer program, or some other incentive. The publishers can't guarantee that Amazon won't be able to dominate the market by virtue of its strong competitive position, wide inventory of products, and other advantages. What they can guarantee is that their readers will no longer be locked into a Kindle.
Although Stross doesn't say this directly, I feel this also opens up a world of other direct-sale opportunities for publishers. I mentioned Emily Books a couple weeks back, who are trying to operate as independents. In a DRM-free world there's no reason that a big-name publisher can't do a deal with Emily Books or any of a thousand other small, high-value, curated ebook outfits. Get DRM-free versions of Emily Books on every device, with a publisher like Tom Doherty Associates lending its marketing and mass distribution expertise and getting a cut of the profits. I can think up at least six more profitable-to-the-publisher ways to build business in a DRM-free work. Stross's piece claims that dropping DRM won't lead to immediate revenue gains, but I think that's true only if you consider going DRM-free as a stand-alone action rather than part of a comprehensive business strategy.
I was also amused to see that Stross also predicts the demise of the dedicated e-reader, given that most people I talk to think I'm nuts when I say that. He's more generous than I was, giving the stand-alone reader "2-3 years possibly, 5 years probably" where I think that by this time next year everyone will be talking about the decline of the device as tablets ascend.
Lastly, I wanted to bring to your attention a fascinating piece that appeared yesterday on PaidContent, '"Why I break DRM on e-books”: A publishing exec speaks out.' In this column, Laura Hazard Owen tells the story of one (obviously anonymous) executive from the publishing industry whom she introduced to the common practice of unlocking a purchased book so it can be read anywhere.
Exec, as she dubs her story protagonist, admits to being influenced by Stross's writing. Exec realized that s/he had no control over the ability to do perfectly legal things with purchased ebooks. Exec isn't sharing the cracked books with anyone, let alone putting them out for general downloading. Exec just wants to be able to read the stuff, and has figured out that the sole purpose of DRM is to control the consumer. Sadly, even though Exec admits to a decision to break every DRMed ebook from now on it doesn't appear that Exec will do anything to change stupid corporate policies that put the DRM there in the first place.
Still, admitting you have a problem is the first step to recovery, right? Maybe we should set up a 12-step program for all the members of the Cartel who are addicted to DRM.
First, the practical response. Dearauthor.com has a very nice (if lengthy) guide to "What happens next?" It's complicated, in part because some of the publishers accepted a settlement and some rejected it. So what happens with your e-books (both as an author and as a reader) depends on who the publisher is. Also bear in mind that the settlement doesn't yet have the official court stamp of approval, which could take as much as 60 days to get.
For example, it's quite likely that those publishers that signed the consent agreement will quickly negotiate new agreements with Amazon, which still has a dominant position in the e-book market. Because of the terms of the agreement, books will appear in Amazon's Marketplace at variable prices. There will be an ability to discount, to manage prices, and I suspect Amazon will not pass up the opportunity to promote its (re)acquisitions, possibly with sales and offers. If you were holding off on buying some e-books because of pricing in the past few months now is an excellent time to start scanning for bargains. Assuming, of course, that your preferred books are published by certain publishers and are on your locked-in platform. But I digress.
Dearauthor seems to think that the prices on physical books are due for another rise, and that the entire concept of a mass-market edition is at risk. I generally agree, but don't think it will happen this year, for reasons I think will become apparent as 2012 unfolds, particularly the end-of-year shopping/gifting season.
To wit: I believe that the dedicated e-book reader may well have plateaued already. In 2013 I think we'll start to see the dedicated e-reader go the way of the point-and-shoot camera as tablet computers start to become less pricey and expand their reach and function in accordance with some version of Moore's Law. Just as peoples' mobile phones took over every function that a point-and-shoot had, tablets will do everything that e-readers do. Yes, phones and tablets cost more, but people want mobile devices for other reasons and once you have those devices you don't want or need a second single-purpose device. In the mass consumer electronics market, special-purpose hardware tends to lose badly to general-purpose hardware. Your set-top box is a DVR (and maybe a DVD/Blue-Ray player too). Your home movie camera is called "iPhone" or "Droid." Et cetera.
E-book readers will not be immune, and their demise will shake up the market significantly. If Apple continues to be this hostile, what will be the fate of a "Kindle app" for iPad? Will Apple even allow such an app in the store? Disruption of this sort always hurts consumer adoption, as does a failure to converge to a single standard. A slowdown in consumer adoption of e-readers may well delay the demise of the mass-market paperback, at least for a year.
To close out the Dearauthor piece, I think they hit the nail on the head where they say
[P]ublishers have sustained a big public relations blow. People who never read an ebook or haven’t followed this issue closely now are exposed to this idea that publishers stand accused of engaging in price fixing
Fulton makes a couple good points, the first of which is that Amazon's behavior in arousing the book publishers' ire is remarkably akin to what Apple itself did with its iTunes store pricing. Jobs wanted a certain price for songs and he got that price. The music publishers fumed and fought and flailed but 99 cents it stayed. His other point is that the publishers (and Apple) who are fighting the suit may be in position to counter at least the prima facie evidence of collusion that the government seems to be making its case on. Whether that's a wise move is still debatable. Making yourself look bad in front of customers is rarely a winning strategy.
Finally, In delightful counterpoint to Jon Sargent, we get US DOJ (acting) Antitrust Chief Sharis Pozen claiming that the point of the settlement is to "[open] up the competitive marketplace and the competitive landscape." So now both sides claim they're all about open competition - isn't that wonderful? And that brings me to John Scalzi's Whatever column published yesterday in response to the public drama. As he points out, all of the players here are in it for their own (and their shareholders') pocketbooks.
You, and me, and those who read or might read e-books are here solely for the purpose of giving these companies money. That's what they're in business for. Statements about the public interest, or open competition are just part of the PR maneuvering game. Corporate strategies have everything to do with profit and nothing to do with "good" or "evil." Really.
Hines avers that he is no fan of DRM, and agrees that HBO is making a mistake with their marketing. However, he takes umbrage at what he sees as entitlement on the part of fans: that sense that they ought to be able to acquire what they want, when they want it, in the formats they desire, so long as they're willing to meet the stated price. Err, um, yeah. And no.
Hines is right - nobody is entitled to buy anything, and certainly there's no cause to attack someone who isn't even at fault for your inability to make an instantly gratifying purchase. But he's also wrong, in that entitlement, or instant gratification, is the major motivating force behind virtually all electronic commerce. The vast engines of marketing and media and expectation have been pushing for the last couple decades toward instant gratification, instant fulfillment, always-on, 24/7/365 shopping. We made of Mammon a god, and you are surprised when his thwarted worshippers rage?
People didn't just up and decide overnight that they were entitled; they have been trained into it over and over. It's not a unique attitude, it's a carefully cultivated outcome of the modern consumerist society. You may not like it but it's hardly surprising.
The theme for February seems to be retrospective analyses. I hope this isn't boring everyone; I'm finding it fascinating to see the Copyright Wars at last moving into a new phase. I am devouring analyses from everyone I can find, trying to figure things out for myself. Feel free to contribute your links and ideas, too!
Cellan-Jones notes that the large-scale protest venue jumped from the US (anti-SOPA/PIPA) to Europe (anti-ACTA) and that if one is to judge by the size of the visible crowds, the impact isn't evenly distributed. London's visible protestors numbered in the hundreds where tens of thousands of Europeans took to the streets in each of many cities. Cellan-Jones's primary point seems to be that even though Western governments have changed in the face of Internet protests, more authoritarian and recalcitrant regimes haven't. Therefore we're not 'winning'.
Say what? Oppressive regimes don't change in the face of peaceful mass protests, nor in the face of armed rebellions. Just ask the thousands of Syrians... oh wait, you can't, their government murdered them. Seriously, now, what does Cellan-Jones (and similar nay-sayers) want to see?
Wikipedia is not opposed to the rights of creators — we have the largest collection of creators in human history [...] providing unrestricted access to the world’s knowledge. Protecting our rights as creators means ensuring that we can build our encyclopedias, photographs, videos, Web sites, charities and businesses without the fear that they all will be taken away from us without due process.
As creators, then, they claim what they see as their (and our) rightful place in the media industry. If laws are to be written that are for the benefit of the media industry (see once again The Breyer Test) then those laws must benefit... well, us. We who write for Wikipedia, who blog, who post to YouTube, Twitter, Flikr, or in other ways give our time and creative energy to enriching the mediasphere are equally as deserving of legal protection for our honest innovative creations as the Cartel.
You can download the full PDF of the article from the SSRN URL above. The simulations they report on this time compared property rules against entitlement rules and found that (contrary to expectations) the liability rules performed better.
Background: An entitlement rule is one that tries to examine situations where two sides' fundamental rights are in inevitable opposition (e.g. the right to perform an activity that is noisy versus the right of neighbors to have a peaceful silence) and determine who is entitled to their activity or condition, imposing limits on the other party. Entitlements are generally protected by property rules in US law. Liability rules, by contrast, only give the opposing parties the ability to seek a civil case (sue) which of course comes with large up-front costs. To oversimplify vastly it's the difference between calling the cops and calling your lawyer when you're looking for help. Wikipedia, as usual, has a much more detailed explanation.
Tomlinson and Torrance argue that US patent law has recently witnessed a shift away from property rules and towards liability rules and that liability rules do better in terms of promoting innovation. This shift stems from the eBay v MercExchange Supreme Court case in 2006. As a result fewer companies are getting completely enjoined from producing products; instead, they're getting hit with financial judgments. Tomlinson and Torrance construct computer simulations and do human experimental trials to see which way of doing things has better outcomes. Though we tend to think that the lawyerly mess around infringement suits and counter-suits and expensive settlements is a bad regime, it seems like it performs better than the alternative, injunctive, method.
It's an interesting idea, suggesting that the 2006 decision would stand up to the "Breyer test" in Golan. It may also support the general trend to settle rather than fight in patent cases - if companies believe that the end of a (long, expensive) trial is going to be a monetary judgment anyway then it makes sense to take a cheaper settlement deal earlier on.
Contrary to what I may have implied yesterday, Tassi says that he doesn't believe the Cartel executives per se are dumb, just that they're behaving in un-clever ways. If so, the question is why. Tassi makes the familiar argument that the Cartel is deliberately overstating - if not outright lying and distorting - its losses due to illegal copying. At least, these numbers and reasoning are familiar to those of us who've been in the Copyright Wars for years; maybe they're less obvious to your average Forbes reader.
Finally he points out that the industry's continual focus on blockbusters can have huge distorting effects. A badly performing movie can easily lose a studio USD 100 million or more and yet they continue to invest in ever-bigger and ever-more-costly projects. This, he asserts is prima facie evidence that the industry is not in trouble.
Eh... maybe. Once you've built a business model around blockbusters it can be very hard to climb down. It's not just movies that are built around this - books, music, and drugs are all blockbuster-based business models. Hollywood doesn't seem to know how to do low budget; they seem to leave that to the independents to make and then pick up distribution. If you're built to do a few big things it can be hard to retool to do lots of small things. Also calculating P&L on a movie can be an exercise in black magic; just ask anyone foolish enough to sign a contract for a percentage of a film's net. Theater attendance is dropping and it's not always reliably the case that you can make up lost in-theater revenue via overseas or other ancillary sales.
The essay starts with the recent defeat of SOPA/PIPA and works backward to a nice set of links to past important battles in the Copyright Wars. Aheram is clearly reacting to currents within his own libertarian intellectual-thinking tradition, where some have taken sides with the pro-SOPA forces or been "dismissive" of SOPA.
As I am not libertarian, I was interested to read their point of view. In particular, Aheram asserts that copyright itself, by virtue of its government-granted monopolistic status, is an illegitimate infringement on sovereign private property rights. I suspect that others - even other libertarians - might not agree there, though I see the logic that is being followed.
Again, there's a definite link between Tea Party streams of thought and libertarian streams of thought, particularly as applies to smaller, non-interfering government. I don't quite buy Baker's strong assertion that this wing of the populace had the most effect, but it's quite clear that when you tally up those who finally came out against SOPA the Republican party was much better represented than the Democratic, which may well be looking at how many dollars the Cartel puts in its campaign coffers.
If Baker is right, then we really do need more pieces like Aheram's to reach out to untapped or skeptical communities and help them see where their political freedoms and Internet freedoms overlap.
Y Combinator is Paul Graham (and partners') early-stage seed-funding organization. Part angel investor, part venture capital introduction, and part hip techster scene, it often has an impact well beyond the small amounts of capital it invests in early stage companies. Graham is also a respected essayist on the Web in his own right. So when Y Combinator puts up something called "RFS 9: Kill Hollywood" that gets some raised eyebrows.
The page appears to be a response to the recent fracas over SOPA/PIPA and Hollywood's insistence that its 1960's-era business models are deserving of special legal protection regardless of the disruption that would cause to the 21st-century Internet. But I digress. "Kill Hollywood" is looking for companies that want to "hasten the demise" of movies and TV. The underlying theory is that in 20 years people will (should) do things other than passively consume entertainment and that funding companies now will lead to that sort of social change in a couple decades.
It's a reasonable theory and part of the job of a good angel investor is to find, promote, and take risks on long shots and gambles that may not pay off for decades. But the hostile approach doesn't necessarily sit all that well with people who like movies, despite what they may think of the studios. One such impassioned response came from moviegoer.com in their Moviegoer blog, titled of course "Kill Y Combinator".
Moviegoer itself is an (iPhone) app-centric company, dedicated to the idea that going to the movies is a social experience for which a mobile device app can be a boon. So naturally they have a strong bias toward continuing to encourage people to go to movies and do movie-related things for decades to come. The blog post starts off drawing a line - placing Moviegoer on the anti-SOPA/PIPA side of the discussion but arguing that Y Combinator's call is a kind of "road rage" response.
Certainly the anti-PA group is clear that Hollywood's approach has been aggressive - and not helped by Dodd's attempt to talk tough on Fox News, a tone he abruptly changed. But does one side's nerdrage justify a call to kill it off? Moviegoer argues no, with the sort of circular reasoning that if movies and TV were no good we wouldn't all be torrenting them. That's true so long as you don't think there are no alternatives. Cold pizza isn't as good as some things, but it's still pizza, right?
The Moviegoer piece makes several other interesting points about things like changing the business model, adapting theater showing to capture long-tail effects, and so on - you should read it - but I wanted to pull out one that seems so screamingly obvious even I have tripped over it again and again. What if every bit of content was available for pay, for a reasonable price, nearly everywhere you were connected, 24/7? What if you didn't have to go through subscription sign-ups and long-term contracts and incompatible formats and region encodings and and and all of which put enough friction into the system that it's easier to fire up Bittorrent and type in a search term?
The technology exists to do this right here, right now, today. Apple very nearly did this with iTunes and made a kajillion dollars even though it was format-incompatible and had some DRM hindrances. MP3.com tried and got crushed under the weight of lawyers. What's lacking is the will on the part of the Cartel (afraid much, guys? do you sleep better now that Jobs is dead and you know he's not coming for your movies the way he did for your music?) and someone with the big brass balls and funding to put the tech pieces together. Will Moviegoer (or its parent company) be that someone? I dunno, but I sure hope someone will.
In the end I find myself mostly agreeing with Moviegoer's philosophy. Good movies are good and the art form has survived and thrived for decades because there is good stuff there. Sturgeon's Law applies, of course, but I do like that ten percent. And my 10% is probably not your 10% is not my parents' 10% and on and on. Lean-back entertainment may not be the most fitness-encouraging nor mind-engaging thing human beings can do, but it's fun. And that's worth keeping alive.
Nearly every science fiction writer I've hung out with or listened to has asserted that his or her business was not predicting the future. They might write about it, but the purpose of writing about the future is not, usually, to say "this is going to happen" (as if they were fortune tellers gazing into crystal balls) but rather to say "here's an interesting projection of what might happen." That's true, but it's incomplete.
So it's fair to say that a writer doesn't write to predict. But SF writers do predict, and sometimes they predict with real clarity, bringing together threads that are loose in the wind and saying "here, this is pointing to THAT." In this category I give you Cory Doctorow's speech "The Coming War on General Purpose Computation", given at the recent Chaos Computer Congress in Berlin.
It's about the first half of the recording's hour. Go ahead and watch it. I'll wait...
Done already? If you're not convinced that he's right I probably can't add much. His recapitulation of how we got into stupid copyright wars, and how copyright wars are going to morph into a war on general computers is both scary and, I fear, scarily accurate. Like much good prediction it's not far-future and believing it doesn't require any leaps of faith. You just need to perceive what's been going on, and going wrong, in the last decade or so, and realize it's not going to get better, it's not going to end peacefully; on the contrary, it's only going to take off. A few weeks ago I suggested that 2012 would see a revolution in drug manufacture; what Doctorow is saying is that the next decade will see a revolution in every industry, from biotech to automotive to medical devices and anything else you can think of.
Doctorow ends on an optimistic note. I hope he's right.
(*) Don't believe me? Google "Wexelblat Disaster". Yes, that's me. I was moderately appalled to discover that was my Wikipedia legacy.
I promise I'll talk about drugs in a minute, but first I want to meta-introspect...
There are a lot of tabs I open in my Copyfight window. Most of them don't make it to posts because they're not well-enough developed for me to say something about, or because someone else is saying all I want to say about something. For example FOSSPatents has been dogging the Apple-Motorola patent suits story extensively. I confess I don't understand what Apple is up to here and nobody else seems to have anything clear to say about it.
Then there are stories that never quite materialize, despite my hopes that they will. Earlier this year, news went out that some of the most popular (blockbuster big-selling) drugs were going to go off-patent this year. For much of the past two decades the drug industry has made huge profits off these blockbuster drugs - hundreds of billions - and patents have played a key role in protecting those profits. Patents prevent other companies from copying the drug and selling it cheaper or making a generic version. Drug companies have developed an elaborate rolling shell game of patenting in which they continue to protect their drugs by developing variants, improvements or new delivery mechanisms for the drug that can then be patented. A drug originally marketed (and patent-protected) as an injectable may then be re-patented and further protected in pill form or inhaler form.
The problem with this is that sometimes these medicines are essential, life-saving treatments and intellectual property ends up killing people. This is usually justified by the huge expenditures necessary to create and test a drug as well as shepherding it through the FDA approval process. The figures I've seen for that range from USD 800 million up to 2 billion dollars. Of course, I've also seen figures claiming that drug company spending on advertising and promotion dwarfs their spending on R&D, by up to 6:1. So I'm not wholly sympathetic to big drug companies crying poverty.
At around the same time the stories about drug patents ending hit there was an interesting item on my local PBS station, WBUR, about one-person drug companies. The idea here was that these companies - often a sole proprietorship of someone who had spent decades working at a larger pharma company - could provide a much cheaper way to get new drugs into the pipeline. You still need a big organization to run the large trial studies that the FDA requires, but the process of drug design, modeling, and small-scale testing can be done by renting lab space and equipment at about 1/10th the cost of a big company doing it.
Sadly, despite the promise of new ideas and cheaper ways to get things done, nothing much has materialized on this front. So the story sat in my unfinished file for months and probably would have been dumped if not for two related items that came through my news stream recently. The first is a nice little five-minute piece from PBS News Hour on the ways in which companies have dragged out the last bits of life from their patent-protected drugs and also the multi-billion dollar question: is the era of blockbusters over?
If it's true that drug companies can no longer depend on huge-selling drugs to prop up their profits then they may have no choice but to diversify and to farm out production steps to cheaper alternatives. 2011 didn't see any big changes, but I'm now wondering if 2012 may be the first year of an upheaval in the drug business such as we've seen this year in the publishing business.
At its heart a patent is a government-granted monopoly. It's a quid pro quo that's so fundamental it's even in the Constitution - you do these useful things and in return you get all these legal protections. But there's nothing to say we couldn't also have another quid pro quo, and that's what Sanders is proposing. Drug companies would forego their monopoly protection (which comes with no guarantee of income) in return for guaranteed income with no monopoly. Specifically, Sanders is proposing the government fund a $3 billion/year pool of prize money that would be outright awarded to innovators. Interestingly for us open-access types, Sanders is also proposing that at least 5% of that money be set aside for "any individual, business or nonprofit organization that openly shared information, data, materials or technology that contributed in a positive way to the development of new drugs."
In the current economic climate and political deathlock I doubt Sanders' proposal will go anywhere, but I am pleased to see at least some people thinking creatively about new ways to handle intellectual property in tricky circumstances.
And to my few readers who made it this far, thank you for suffering through with me. I'll try to make my posts more coherent as a general rule.
Smith notes that open access has more than proved its worth, both anecdotally and in repeated tests. The value of publication is not just in reaching those for whom the publication was intended; the value is in being read by a wider and wider audience, many of whom are unexpected readers who can make unexpected connections and derive surprising results and new value from openness.
When you have little money, you buy second-hand books. Seen a second-hand ebook lately?
Of course, you haven't. There are a few minuscule programs to allow some libraries to lend a few ebooks, but the secondary market for ebooks doesn't exist and likely never will.
It's an interesting, and somewhat frightening, question: if we really do away with physical books, what will poor people read? Should lack of money mean you lose access to the entertainment, value, education, and ideas contained in books?
A few days ago I pointed at the underreported relevance of Viacom v YouTube and the associated ideas of safe harbor and takedown notices. I've since gotten a private communication of frustration from someone who believes Facebook is potentially blocking this kind of arrangement from working.
Here's the gist: this person is responsible for enforcing a contract between his organization and a broadcaster. The broadcaster pays for exclusive rights to film and sell recordings of an event; in return he, acting on behalf of his organization, agrees to help enforce the exclusivity by delivering take-down notices when infringing material (such as home-made recordings of the event) is found. So far so good, all in accord with how the Copyright Act envisions things should go.
The problem comes when people post their videos not to open sites like YouTube, but to walled gardens such as Facebook. The person gets a notification (say, someone sends an email saying "I saw a video of your event on Facebook") but when he goes to Facebook to search for the video he's prevent from searching it. The consequent is that he can't provide an adequate notice to Facebook.
The question to hand is whether sites like Facebook are doing enough to permit copyright holders to issue proper notices. I'm not certain. The notion of friends lists and posting things privately to your friends is inherent in most social sites; I don't want to lose that, nor do I think I want Facebook to be legally required to go on fishing expeditions through user content. On the other hand, if being less open is allowing Facebook to escape responsibilities that more open sites like YouTube have to handle, doesn't that encourage the walled gardens and discourage openness?
There's really not much in his entry that will surprise long-time Copyfight readers, though I like his quoting Ecclesiastes. He touches on themes of self discovery and fan fiction and much more - I won't spoil it because you should read the original. It's a brilliant set of ideas to give to young artists and almost every one of those ideas violates some DRM policy or some copyright restriction somewhere. The lesson - the overall lesson that gives the essay its title - is that learning to do art is transgressive. To the degree that we crank down the screws of control we are stifling art, and destroying the learning process of new and undiscovered creative people everywhere. Rip, remix, release and in the process find your own voice and individual contribution to the stream in which we all swim.
This is nothing new, of course. An enormous amount of Renaissance art was sponsored by Medici and Borgia patrons; in China emperors sponsored artists at the same times as they were slaughtering peasants. The only thing different these days is that we get to criticize arts patrons while they're still alive and watch the artists squirm.
One interesting tidbit for those interested purely in the business side: according to the NPR story, even highly successful touring acts can get 10-20% of their revenue annually from these private shows, so it's not necessarily a trivial thing to say "just don't do private shows." This non-trivial amount makes it more challenging to argue that artists should retroactively return proceeds from events put on by scummy patrons. And while it may be a good-will or good-PR gesture to do so, it's not clear to me that the artists are any more responsible today than DaVinci was responsible back then.
Unfortunately, as Duane describes in great detail in her blog entry, life happened. Duane spends a lot of her posting apologizing to readers and sharing a bit of her perspective on the experiment. The big take-away here is that this is not all that unusual. Books are big projects and a tremendous amount can happen between the time a book is conceived and its eventual completion or - more often - abandonment. This happens a tremendous amount of the time in the conventional-funding publishing industry (last Dangerous Visions, anyone?) so it should be no surprise that it happened in a book funded by micropayments.
The challenge here is how to deal when something like this happens and that is completely uncharted territory. My hat is off to Ms. Duane not just for attempting a project of this highly experimental nature, but for how she is handling its conclusion. As I wrote earlier this week, I am still deeply committed to the idea that artists need to get paid for making art, but we clearly need to figure out how to handle what the software industry calls "error and failure cases" as well as successes. When I teach my Intro to HCI course one of the assignments for the students is always to go online and find an NTSB or similar accident report and learn how the physical world deals with failure cases - lessons the virtual world is still painfully slow to learn.
Boingboing and Kottke both pointed to a piece on the99percent.com by Francis Ford Coppola. As you'd expect of someone with that long a career he has a lot to say, but for Copyfight purposes let's focus on his discussion of copying, which comes off his response to the question about developing one's own style.
He notes Balzac's happy response to learning that someone had copied Balzac's writing and talks about how people start by stealing (or copying, in the art world) from the masters. Balzac, and Coppola, clearly care more about their legacy than the money they make right now. Coppola finances all his films himself and makes his actual money in the wine business. From this he branches off to talk about how modern our system of directly compensating artists is, and says "who says artists have to make money?"
Now on the one hand I agree with him - our current models are a recent blip on the historical radar. And it's true that creative people can keep their day jobs to pay for doing art that they love. Coppola also points to the patron model but as I mentioned when discussing Interfictions I don't think the model scales very well.
The other problem I have with Coppola's idea of disconnecting cinema - or other arts - from the idea of making money is that the ability to make a living doing one's art has enormous advantages. For one thing, it lures people. We all benefit from there being more art and though there are plenty of creators who will continue to create even when they have no hope of making a living at it there will be excellent creative people of all sorts who will be disappointed, hindered, or actively discouraged from pursuing their art by an inability to make a living at it.
Even if they are not completely turned off, there is a great deal of art that cannot be made part time, after hours, outside a work schedule, or under constant interruption. Much great art comes from the ability of a creator to lock herself away for an extended period of time and really focus on the creative work. Creative work is hard work, too. One of the greatest legacies of President Kennedy was his recognition that arts are worthy of support in the national sphere and the creation of the National Endowment. We live richer lives as a result, though I can't point to hard statistics to back that assertion up.
And likewise, my gut feeling tells me that we cannot simply dismiss the idea of artists making money from their art, no matter how much I respect Coppola and what he has done/is doing.
Thanks to EFF Deep Links and Boingboing for pointing me at Jeff Price's 6-part series called "The State of The Music Industry & the Delegitimization of Artists". This is a great series of blog posts that ran in October and November looking at the state of the music industry - that is, the business of recording and selling recordings of music - and the state of the Cartel... erm, the big recording industry thingamawhatsis dinosaur what is in the process of dying out but is trampling all sorts of mammals to death in its thrashing throes.
In part 1, Price takes direct aim at the doom-and-gloom that is surrounding the Cartel, and notes that even if you use the extremely conservative Nielsen numbers, music purchases are up 50% in the period 2006-2009. These numbers are conservative because they don't account for a whole lot of ways that people get music these days, which is to say not as 'albums' packaged and promoted by the Cartel. That form? Doomed. Music itself? Alive and well. If this argument sounds familiar, it should: Marc Weidenbaum made this point back in May, though he did it artistically rather than by crunching the numbers.
I won't spoil the rest of Price's entry - you really should read the whole thing (there are links to the other parts at the bottom of part 1; for some reason the TOC at the top is not hot-linked). But I did want to call attention to another important part of his data:
"More musicians are making money off their music now then at any point in history [and] the amount of money going into the artist's pocket has increased."
Put that in your pipes and smoke it, you crack-headed "piracy will bankrupt artists" types. Over and over again the data have come out against you, but like the Birthers and the Global Warming Deniers you just keep at it. Not that I think any of you read this blog, but really, you ought to be ashamed of yourselves.
As a generous interpretation I can say that you have confused your own profits and antiquated business models with what you're supposed to be in business for, which is helping artists get known, be heard, make a living, and get paid for their art. I have freely confessed that I don't have any prescriptive solutions to the problems. At best I can point to experiments in patronage models, crowdsourcing, remixing, and free-sells-more that are going on right now. If Price is right, then maybe we're starting to accumulate some evidence that these models - a thousand flowers blooming - are starting to work.
As you can guess from the title and my interest, the topic of the book includes ownership of things that have come to be called intellectual property. In particular, Hyde's book is portrayed as a plea to protect our "cultural patrimony" (*cough*sexistmuch?*cough*) from "appropriation by commercial interests."
I'm sorry, guys, but that ship sailed a long time ago. I don't know whether you want to mark the passage of the Mickey Mouse Protection Act, the enactment of the DMCA, or MGM v Grokster as the important milestone - or even something else. The point is still that we've moved from the realm of public sharing of common heritage into a realm where everyone thinks it's natural for big corporate interests to own our genomes, our family histories, and every bloody other thing they can lay their hands upon.
From an academic perspective it's nice that Hyde can go as far back as the Middle Ages, and tie a belief in a thriving public sphere to the American founding fathers. But practically speaking? Who cares. The Cartel are not patriots - the only use they have for nations is as enforcement arms for their control regimes. Appeals to the lofty principles of dead intellectuals is just chaff in the wind.
If we're going to make arguments from history, which I think we should, then it's essential to point out the historical pragmatics - what did it mean for intellectual property to be shared as it was then, and what are we losing by locking it up now?
I suppose it's worth noting that I left academia for roughly these reasons, many years ago. I like good research and the challenge of connecting the dots within the vast streams of knowledge and discovery of the as-yet-unknown. But I also want to see those dots connected to practice, pragmatics, and with a clear relationship to today's reality.
Boingboing's Xeni Jardin was on the Rachel Maddow show earlier this week making an interesting point. Xeni suggests we look past Wikileaks itself to the question of who owns secrets. She and guest host Chris Hayes discuss the idea that this is a transformative moment similar to the mass emergence of Napster for music sharing, or BitTorrent for movies/games/software/television.
The discussion is clearly going to continue and I have yet to figure out exactly what I think about it. I personally find it fascinating that the Obama administration is having conniptions where the UK government's response is something along the lines of "meh." There's clearly a form of power involved here that isn't involved in P2P networks that share entertainment content. Government secrets and ownership of information represent a strong form of control, but haven't we argued for years that the Copyright Wars are really control wars? Control over peoples' opinions, actions, opportunities? Maybe Xeni is right and they are of the same ilk.
It's true that the two are often inextricably linked. Authors, for example, are famously assumed to believe things they have their characters say or advocate. And the recent mess Mel Gibson has made of himself clearly shows how creators' images affect our view of their created works.
Sanford looks briefly at the attempts by author Harlan Ellison and musician Prince to dissociate themselves from the Net. Neither of these men is J. D. Salinger but I'm reminded of Salinger's desire to cut himself off by these men's ongoing attempt to snub the Internet. Ellison is a famously cranky individual (best headline: "Harlan Ellison files lawsuit, In other news, sun rises") so it's not all that surprising he would try to tell an entire technology - not to mention social infrastructure - to F off. I used to think Prince was more hip, though.
This video, called "Walking On Eggshells: Borrowing Culture in the Remix Age" is a documentary produced as a final project for a Yale course titled "Intellectual Property in the Digital Age". In the documentary, the three student filmmakers interview a variety of creative types (artists, writers, and lawyers) and muse on the society and technology of the remix. In a way it's a paean to the art form, and it's also a plea to the forces of the Cartel please to leave this form be, to let it nurture and grow.
Everyone in the film seems quite aware that remixing is appropriation and appropriation is at best questioned and at worst punished. And yet, it's what they do. It's what's expected. It is, as I've said before, the culture of the next generation. It's the background assumption. The only question to be answered is how long will people like this have to walk on eggshells before the law and business learn to adapt to this mode of doing and treat it with cooperation rather than trying to exterminate it. The "mystique of authorship" is not just unnecessary, it's counterproductive.
Rémi Vallet, who gives his URL as Nutriset's site in France, responded at length to my call for engaging the moral dimension of intellectual property issues. He doesn't list himself as a spokesperson for the company nor give any title he might hold with them, so I can't actually say it's an official response, but he does raise points that I felt were worthy of bring up to the front page rather than being behind a comment link. (ETA: In a private email Vallet identifies himself as Responsable de la communication / Communications Manager for Nutriset so I think we can take his response as representing the company)
First, he corrects my misapprehension that Nutriset is not licensing its product. There is a (PDF) link to a description of a network of manufacturers and licensees, though I am somewhat confused as to what it means for the company to license its product in a country where it does not hold a patent. Still, that's a minor issue.
The heart of the question seems to be what qualifies as 'demand' or possibly what we might refer to as 'need.' From Vallet's point of view, the "demand is by far insufficient to meet the needs of the 20 to 26 millions children suffering from severe acute malnutrition." Here "demand" is synonymous with "people asking to buy our product" whereas someone else might say that these children's hunger constitutes a demand. Currently, according to Vallet, production of all RUTFs is about 60k metric tons, which doesn't come close to feeding those 20+ million children. The cost of taking up the full-scale project is certainly in the billions; Vallet quotes a World Bank estimate of USD 12.5 billion annually.
That scale of expenditure is clearly beyond the means of any but the largest corporations or charitable agencies. One might then conclude that Nutriset's patent is not a major obstacle in solving this problem - which would be true but almost wholly beside the point, insofar as one wants to engage with the question of whether patents on these sorts of products are in the general good or not. Nutriset's patent is just one example of a license that has moral implication.
The core notion of a patent is a grant of monopoly rights in exchange for some form of betterment, usually of the society or country that grants the patent monopoly. From a pragmatic point of view, as I've written before, we also need to consider the cost/risk/profit equation of the patent holders. Even though the US Constitution and other patent laws do not frame their grants in terms of profit, if we expect the market system to produce these life-saving products then we have to ask hard questions, such as "Is Nutriset's patent impeding production and distribution of life-saving foods?" and "If so, what is the proper remedy?" or "If not, to what extent are we comfortable allowing private commercial entities to claim exclusive rights?"
Vallet links to another PDF, a UN policy brief on "Scaling Up Nutrition" that, while laying out the problems and costs in fairly stark terms does not even mention the words "patent" or "intellectual property." I'm sure it's good that Nutriset endorses this framework, but that's necessarily going to help work through the tough questions around IP and life-saving.
This time it's not just medicine. At the end of last year, a couple of US non-profits filed a challenge to US patent No. 6,346,284 which describes a food product currently marketed as "Plumpy'nut." Despite the cute name, the product has a serious use - it is what is called an RUTF, a ready-to-use therapeutic food. Because Plumpy'nut requires no water to reconstitute and has a safe shelf life over over two years even in harsh conditions, the food is considered ideal for relief of severe malnutrition in areas without some basic infrastructure such as clean water or easy access to refrigeration. According to WHO, malnutrition is the cause of half of all child deaths worldwide, so this is serious business.
The IP issue - as in the case of medicines - revolves around the patent. The company holding this patent does not license it, so it is not possible to produce the food equivalent of generics. There's also some question about whether the patent itself is over-broad, which is a convenient hook on which to hang a suit but misses the issue I think is important.
A BBC story from last week indicates that the patent holders, a French company called Nutriset, are well aware of the moral dimensions involved. They argue that "No child in the world has even been denied access to the product as a result of the patent issue" which may or may not be true, but at least it goes straight to the heart of the concern. It is acknowledged by both sides that there is more demand for RUTFs than Nutriset is currently meeting, but simply making more bars isn't always the only factor in a solution.
For example, a TimesOnline story from last August describes how India blocked the use of Plumpy'nut, in part due to concerns over safety and in part due to concerns over whether an imported foreign product should be used to solve a problem that Indian authorities seem to believe should be solvable with local products. Again, this is (in my opinion) much more on the point than debates about which countries do or do not recognize the US patent.
Nutriset is making similar arguments, saying that they'd be happy to ramp up production but funding and systems of distribution are lacking. I'd love to see those arguments engaged directly - what compensation (funding) should Nutriset get for its product? Who should pay? Would a compulsory local manufacture-under-license program both provide adequate profit to the company and also address national governments' concerns about local solutions?
Intellectual property doesn't always have moral dimensions, but when it does they can be life-or-death and there needs to be a much more serious engagement with those dimensions in order to shape a coherent global IP regime.
I was undecided then and I remain undecided. The situation gets unpleasantly complex. First off, there's a question as to whether one ought to allow patenting of so-called natural sequences (genes, typically) or other things that come about without deliberate action or intervention. I'm not a patent lawyer, but even here I'm of two minds. I'd like to think that for-profit enterprises ought not to be rewarded simply for being first to file a sequence isolated from a creature or compound that has existed for hundreds of years - what's the invention here anyway?
But there are situations where the sequence is unknown and most essentially the relationship of the sequence to causation and effect in the macroscopic world is unknown. The science of discovering that is largely driven by profit motives - you find things like mutations or genetic markers in order to develop diagnostic tests or curative agents. Unless we give sufficient protection to the people and companies engaged in this research they may not be motivated to invest the millions the research requires. So what's the alternative to permitting patents on (gene) sequences?
Second, is there a threshold case here? Breast cancer is unpleasant at best and if untreated can lead to other cancers, major side effects, and even death. That said, a predictive genetic test for it is definitely a First World concern. The predictive test may be better than other methods, but does it pass the threshold that I feel anti-retroviral medicines for AIDS pass? I'm not sure.
Third, the ethical consequences of patents on genes are poorly understood (at best). We really don't know what it's going to mean for society to give monopoly powers over creatures and bits of our own bodies to commercial entities. The fact that this case has arisen over a situation as personal and deeply affecting as breast cancer is probably not a coincidence.
Finally, is the practice of gene isolation an important and necessary part of the process? Is that sufficient to create a patentable product or is it, as the NY Times story notes, merely a "lawyer's trick." The root problem here is that the patent system is increasingly divorced from our growing understanding of science (h/t to Greg Aharonian of PATNEWS who has been hammering on this issue for years). If patent examiners could be properly trained in the science of the area in which they're issuing patents, and if the patent law supported clear statements of the scientific principles underlying patents, then we'd be in a better position to judge this - or at least a competent scientist would be.
As with most of these big thoughts I have far more questions than answers. I do expect this case to be appealed and probably overturned on appeal, but that won't make the fundamental issues go away.
Instead, I want to direct your attention north of the border (and hope that at least someone in Ontario reads this and will respond). The Globe and Mail has a nice write-up on the new Tino Sehgal exhibit at the Art Gallery of Ontario. The exhibit (if it can properly be called that) is titled "Kiss" and consists of seven male-female couples who, over the course of two hours, recreate famous kisses from well-known pieces of Western art.
What makes this Copyfight-interesting is the language and restrictions around it. First, part of the agreements around the exhibition include no photography or other recording. Either you're there to see it, or you're not. Fine, and much like many other performance pieces.
But the way The Globe And Mail describes the transfer of the intellectual property around this fascinates me. The AGO "bought" (whatever that means, probably paid money for) "an edition of" (which I take to mean secured the rights to perform/display) Kiss. Apparently other big-name museums have "bought" this piece, which again strikes me as very odd language. If you're buying a copy, then you get some rights in that copy by virtue of the purchase, no? And if your rights terminate after some time (or some number of performances) then aren't you renting rather than buying?
And if it's an edition of, does that mean it can run concurrently with other editions? (Edition is also a weird word - makes it sound like a reprinting of a book.) Or does it just mean that you get some rights to change it, such as selecting which actors will be in it? Or maybe you get more substantive rights, such as the right to change what kisses are enacted, or how long the enactments take place?
The whole thing strikes me as odd - if they'd used the language typically seen around other ephemeral art, such as musical performances or theatrical offerings, I might find it less weird. But, really, what does it mean to treat something like this as a piece of art that is on exhibition at a museum?
Boingboing pointed to a very interesting YouTube video on "The Evolution of Remix Culture". The video is, in lovely recursive fashion, also something of a mash-up of previous videos. In a short eight minutes, the author identifies a generational change in how remixes are being used.
First generation remixes involved the appropriation of pop culture material for the creation of new work, as has been done since oral storytellers sat around a fire listening to each others' tales and improving on them. Second generation remixes, the argument goes, are "social" remixes, in that the purpose of the remix isn't just to create a new work but to provide a response in a conversation or other interchange. Social media sites such as YouTube facilitate this by providing things like video response links as well as by popularizing user-created content across thousands (or more) of likely respondents.
This is nice, but not particularly revolutionary. What gets added here is that the creation of the remix itself performs social functions. People choose which video they want to remake for themselves - check out the vast number of groups of people redoing Michael Jackson's "Thriller" video, for example. And in the way they stage their own productions they're also making statements about themselves and often their own locales and local social networks. It's not a hugely revelatory thing for someone (or a group of someones) to say "Yes, we're like them" for some particular them depicted in pop media. What's new is that this statement becomes embedded in a conversation and also itself becomes fodder for further remixing by others down the conversational line.
In about the last 1:30 of the piece, the author (called "Normative" according to boingboing) touches on some of the copyright problems that influence this kind of thing. And, shockingly, he identifies control as the central issue. No, really, I did not pay him to say that. The Copyright Wars that have waged for the past 12 years or so really are about control, over expression, over technology, and ultimately over the shape of the culture in which we live.
I continue to be bored and frustrated by the grinding, trench warfare-like nature of the conflict these days. But videos like this give me hope that precisely because the war has ground on so long we may see it end. We've raised up a generation that sees its self-expression as intimately tied to the appropriation and reuse of... well, everything. Remix culture has become normative culture and trying to suppress that is just patently doomed to fail.
In the past, I've made the comparison of copyright laws and speeding laws. If you go faster than the posted limit you're breaking the law. Likewise you may be breaking the law by copying or sharing copyrighted materials. Doing either can get you a chat with the cops and some hefty fines.
Yet, the fact remains that most people speed. Some people are really egregious dangerous hotheads. But the vast majority of speeders are not those people - they're just folk who are making an estimate of the safe speed they can achieve, what the prevailing traffic is doing, and driving accordingly. Speed limits be damned.
Likewise, there are some really egregious copyright violators - factories in China that pump out millions of unauthorized DVDs. But most people are casual copyright violators, because they're engaged in activities that seem safe and sensible, such as loaning books to each other. What's necessary is a copyright enforcement regime that recognizes not all copyright violations are the same, and doesn't try to pile on ridiculous fines for sharing a few songs in the absurd hope that this will induce social behavioral change.
He goes on to give several examples of things that, applying a common sense test, would seem to be OK even though they might be thought of as commercial (e.g. mailing a copy of an interesting technical article to your boss). I definitely could quibble with some of his examples and I imagine many readers could as well. This is both on and off the point. It's off the point in that the specific examples don't necessarily matter if you buy into the principles behind them. It's on the point, though, in that what may seem like "common sense" to one of us may not be a shared idea of common sense to all. And "common sense" evolves, often faster than the law can change to catch up.
What's needed, I think, is a way to go beyond the simple phrase of "common sense" and to talk about what that might mean and how it would change. At base, though, I think we all agree that overly rigid copyright regimes serve nobody's interest.
Briefly: even though it's a pittance, artists do get some money from CD sales. Many of the digital download deals also funnel money back to artists. But when a musician's work is played on broadcast radio, no money goes back to the artist. Originally the theory was that the artist was 'compensated' in the form of exposure for his/her work, and radio producers and DJs chose things based on what audiences wanted or liked. Of course, there has always been pay-for-play (payola) of one form or another to influence radio playlists.
According to Warwick's column (and I confess I haven't read the bill), Conyer's Act would provide exemptions for the small and financially struggling radio stations while requiring large corporate radio to funnel at least a little money back to the artists. Sounds great - now why couldn't we get the same kind of Protection Act for Web radio?
It is true that Amazon pulled some e-books off Kindles after customers had paid for them. The problem is that those books were 'stolen goods' to which Amazon never had sale rights in the first place. The fact that those pirated e-books were Orwell's 1984 and Animal Farm makes me think this was a deliberate hack set up to embarrass Amazon. And it seems to be working, as the company first took the action silently, then has failed to manage the publicity around the incident, starting with the initial New York Times piece.
The gaffe here isn't that they pulled e-books that people had bought; it's that they're currently in a situation where they're looking at new competition from a new e-book reader put out by competitor Barnes & Noble and they can't manage to keep egg off their face. The way this situation has been handled is putting doubts into the minds of customers who are already hesitant to adopt a new reader technology.
But what teacher or school administrator wants to worry about their whole school's supply of a textbook disappearing overnight because of some error that the publisher (Amazon) decides to "rectify" by erasing all downloaded copies of the book? I'd guess none. Maybe Amazon can convince schools it won't happen. But really, you don't want to have to make that argument in the first case because this should never have happened. Amazon should have taken steps to make things right with the Orwell book rights holder without impacting its customers' experience. I feel like a broken record saying "customer experience matters most" over and over, but it's still true.
Amazon has just proven that it can take seemingly random actions that result in bad things happening to innocent people. And you're going to sell that as a good technology to... who?
In this paper, the authors report on a simulation they conducted to examine the behavior of potential patent holders and competitors under a variety of condition. The PDF of the full paper is available from the bottom of that linked abstract page. They compared situations involving patents (exclusive rights) against two non-patent situations - commons and open source. The surprising result (to Copyfighters) is that open source produced inferior results to a pure commons system given how the authors measured innovation, productivity, and societal utility.
As with any simulation, it's certainly possible to argue with the parameters of the model, the experimental set-up, and the interpretations of the results. In addition, the game results may be biased by the selection of players who, in this case, were incoming law school students. It's also unclear whether any game of this sort can capture all of the motivations for patenting as they exist in the real commercial environment. People get patents to protect their own inventions or to restrict competition, of course, but they may also seek patents for purely secondary purposes, such as improving their bargaining position with larger rivals or with venture capitalists. Of course, you could counter-argue that none of that is really useful progress as conceived by the framers of the Constitution.
(Full disclosure: the second author of this paper was a grad student at MIT while I was there and remains a friend and professional colleague. For whatever reason, he didn't mention this work when I saw him back in April. I found this publication through the blog of a mutual friend.)
Generally I have a lot of respect for Richard Posner. The word "brilliant" gets thrown around casually a lot, but I really do think Posner verges on brilliance. You don't get 40 books published by writing nonsense or wasting readers' time. Let's settle for saying he's a very smart, very widely influential judge.
The problems with newspapers are nothing new; what's new (and excuse my impertinence WRONG) here is one of the remedies Judge Posner suggests. After a long discussion of the costs and economics of newspaper publication, here's his final sentence:
Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.
No. Just no. Linking is the fundamental technology of all hypertexts, of which the World Wide Web is by far the biggest and most popular. One of the reasons it is so large and so widely used is the ease with which information can be accessed, transferred, exercised, repurposed, and reused. The fact that this fundamental technology is in conflict with the page-centric advertisement+content revenue model is an indication that the ad model is flawed, not that we should erect further legal barricades to try and cripple the very thing the Web does best.
To be very clear, I have a large personal stake in this game. Copyfight, like so many other blogs, is built around the notion of taking things said elsewhere, pointing to them, and building on them. Since all writing in the US is born copyrighted, there would be a large blow to almost every blog if this kind of restriction were passed. It is a stupid idea.
The fact that it was put in as a final sentence in the blog posting makes me think Judge Posner hasn't really thought this one through. The comments in the blog are neither edited nor responded to, sadly, since several of the non-spam commenters take Posner to task over this nonsense.
And if so, does that mean we should wave bye-bye or should we attempt to re-imagine how large chunks of idea will be communicated from (or between) an author and a mass literate audience? Personally I think we ought to do that latter, regardless of whether or not we think the book will survive. As I've argued before, new art forms are emerging and creators need to embrace and extend the opportunities available to them. Existing writers should continue to break out new experiments, and O'Reilly points out ways that his print press has done some of that.
There is some question as to whether these new things are "books" as we've come to understand them, but let's leave aside labeling for the moment and consider them as a form of creative expression. To make these expressions in new media requires new skills - O'Reilly talks about things like "crowdsourcing" for example - and audiences will need to find ways to acquire, appreciate, and respond to these new forms.
So, no, I don't think Tim (or any one organization) can re-invent something as fundamental as the book. We have over a thousand years of evolution of that art form already in hand and that millenium won't be toppled quickly. But collectively, yes, I do believe that we can employ new technologies to re-invent the book. Right now I'm watching my boys delve into comics and devour graphic novels the way I did as a child. I'm certain that what they give to their children as "books" will be different than what I'm passing down to them, but it will be something additional, not a full replacement.
These days lots of people send me links to things they think are interesting and Copyfight-able material. I don't want to discourage people, but I can't possibly blog every one. Cory Doctorow I am not.
But I did want to use this video of interesting images from Google Earth to jump off into a bigger thought or more like a set of related questions. I'm sure there are dozens or hundreds of such videos, and this one combines many individual interesting 'finds' that people have discovered and posted. This one isn't unique but it's got me thinking.
It seems like we've got several things going on here, and we lack language for it. I feel like this is a new art form, but I don't know how to talk about it, much less what to call it. When someone makes art that's only visible from space because he KNOWS satellites will photograph it, and then someone else puts the image into a montage of deliberate art and found objects and natural-things-that-look-like-they-were-made-as-art, and someone else sets that montage to music with dramatic timing, gorgeous camera swoops, and almost narrative pauses built in... what do we call that?
And isn't there something essential to this art in that it's placed on the net for free distribution? Wouldn't it be something different if we saw it in a movie theater, confined to our seats? Would it be different yet again if it was played on the wall of a club and we were encouraged to dance to it?
I have a lot of questions, and no answers. But I'm convinced that if this isn't being taught in design schools right now then they're doing their students a disservice.
Jeph starts from the blog post by Neil Swaab that paints online comic artists as merchandisers first and artists second. It's true that most people who are living as Web comic artists do so not by selling the comic itself, but by selling associated merchandise.
Swaab seems to be making a bucket of broad assertions, each of which Jeph deals with in turn. Jeph points out that a comic artist can easily farm out the merchandising and online store maintenance, probably at less headache than dealing with print contracts and syndication details.
Further, he asserts that QC is making enough from advertising to cover his server and office costs. This is interesting in that ad revenue has definitely declined in the past year or more, and QC is far from a low volume site. Indeed, more traffic should help an ad-supported site, but it does also drive up bandwidth and server costs.
The majority of the post deals with the ideas of making Web comics pay-subscription, sponsored, and donation-driven. All of these are familiar ideas to Copyfight readers and there are a few examples of each of these models being attempted in the online comics domain. In my observation most places use a combination of these methods, but mainly subsist on merchandising.
Which is not, per se, bad, but points out once again that we're not making progress in figuring out good replicable business models for this stuff. What Jeph seems to appreciate most is his fans, and the need for artists who want to make it in this medium to adapt. Amen.
Godin is arguing against the idea that you should take what you love and turn it into a business. This love-into-business notion is circulating in a couple of forms now, all of which proposing to tell you how to spend your time "monetizing" your blog or hobby or avocation, whatever it happens to be. If you Google the phrase "fire yourself" you get over 1.2 million hits.
I'm torn - on the one hand I think Godin has a point. Most people aren't going to make a penny off of whatever it is they love. There just aren't that many people wandering around with cash in their hands looking for unemployed bloggers to "monetize." On the other hand, I think it's critical that we do come up with new business models and have people testing them out because it's so screamingly clear that current models are BA-ROKEN.
(Interestingly, Godin's blog entry from today is about the evolution of marketing, a key component of monetizing one's art. And apparently he's got a new book coming out on the topic.)
The authors are somewhat known as authors and creators themselves, and the series will culminate in a business-model paper. Both the paper and the blog entries are released for noncommercial use under a CC license.
Why, then, is copying - and not paying - so prevalent? Kelly says that people want to pay if they perceive that the exchange is fair, if it's easy enough, and if they understand some sort of benefit that comes from the paying.
Just stating a benefit (enabling creators to be paid) isn't enough. Conversely, just threatening a negative (lawsuits) isn't enough. Kelly refers to a survey of UK youth in which the surveyed indicated a desire for a monthly-fee unlimited use music service. More or less the way television is delivered to them now.
I'm more or less on-board with this notion. It's essentially what Copyfight has been arguing for years: the experience matters, new business models are needed, etc. The place where I differ is when Kelly asserts that what we want is a relationship, and that paying is a form of/part of that.
I'm sorry, but I really don't want to have a relationship with iTunes, or NBC, or even a hip Web 2.0 technology like Flikr. Paying for these things doesn't make me feel differently in respect to them. I want to have a relationship with people, whether it's a Big Name creator like Joss Whedon or other fans. If Whedon makes his creations available on iTunes or NBC then I might pay those entities as a necessary component of being a fanboy, or if other fans share images on Flikr that's part of a relationship. Paying is just incidental, which is why I think Kelly isn't paying enough attention to his own hints that the payment process has to be so easy (seamless) that it fades into the background.
There's not a whole lot new here for Copyfight readers but it's an interesting checkpoint that draws together several ideas. One is that modern online writing (primarily blogging) is barely paying the bills even for fairly popular writers, particularly those dependent on ad clicks for revenue. Another is that those who are (still) reading books are interested in more than the content of the page - they're looking for connection and probably also participation of some form.
One way to take this is to think of the book as a part of, or maybe just an intro to, a set of experiences such as blogs, chat, conferences, parties, or formal training situations. Not all of these are appropriate for all published books, but genres such as science fiction have long connected writers to their fans through conventions and other gatherings, much less formally organized.
Finally, there's the question of whether or not the book-qua-book will survive all this evolution and revolutionary change. Will things like the Kindle put the book as we know it to rest? Probably not. As Michael Agger documents in his piece for Slate, the act of reading a physical paper book creates distinctly different - and notably pleasurable - mental states that just aren't found yet in any other reading device.
Nobody quite knows why this should be so - perhaps it's something to do with the book-as-artifact, or maybe it's as simple as the fact that we aren't subjected to the same kinds of distractions and interruptions with a physical book as we are subject to when reading online or with an e-book device. However you assign it, though, it seems that books in some form are likely to be around for quite a while. If only we can figure out how to keep publishing profitable...
Clay Shirky is one of the better Big Thinkers on the Web today, particularly in the arenas of social media and cooperative interactions. He's published an essay called "Gin, Television, and Social Surplus". In part this is related to his new book Here Comes Everybody but focused around a single idea.
The idea is that, contrary to the naysayers, we are doing something, potentially the start of something huge. That something is participating, whether it's in something as erudite as Wikipedia or as trivial as lolcats and World of Warcraft. We're taking some of the hours we currently waste on passive television viewing (Shirky estimates roughly one trillion hours of television are watched by the Internet-connected population) and putting them into "an architecture of participation."
Now, as a Copyfighter, the thing that interests me is that almost all of that participation involves creation and sharing, to some degree. If you're in a constrained environment like Warcraft or Second Life, then the acts of creation and sharing you can engage in are limited by the virtual world's structure, coding and rules, few of which are accessible to the mass of players. But if you're out on the wider 'net then your creation and sharing are inevitably going to bump up against the intellectual property structures of the physical world.
So maybe the Copyright Wars were inevitable. And maybe, if Shirky is right, they're not only inevitable, but it's inevitable that we - the online, wired, connected, sharing population - will win. Or our children will. Looked at this way the Copyright Wars aren't just the death throes of a few mass media empires with badly outdated business models - they're the collateral damage of a tectonic culture change. That's a cool thought, even if it's probably wrong in some of the details.
Daily Kos posted a think piece this weekend. The essay argues that big media have, in effect, caused their own devaluation. That is, the "amateurish" state of news on the Web is not really due to the proliferation of bloggers or non-authority sources such as Wikipedia. This is the thesis advanced by Andrew Keen in his book The Cult of the Amateur. Instead, the problem is that there has been a systematic attack on big news sources once considered reliable (CNN, the NY Times, the Washington Post, etc.) by forces such as talk radio and Fox News.
It's no coincidence that these latter are by and large right-wing, and Daily Kos is itself quite left-wing. However, that doesn't make the argument necessarily wrong. Just something more to think about.
Kevin Kelly has caused a bit of a stir by putting out a model for patronage support of creative people. His concept is that of a "true fan" and the piece's title is "1,000 True Fans". The idea is that if a person was willing to spend about one day's salary (Kelly picks the arbitrary sum of $100) then an artist could be supported by one thousand such people.
This is on the surface a very attractive idea, not least because the numbers seem manageable. Most people well enough off to be regularly on the Net probably can manage a $100 donation. Most people can conceive of appealing to an audience of 1,000. It's almost the polar opposite of the mega-millions/blockbuster mentality that pervades so much corporate media production, from books to movies to music and so on.
Unfortunately the idea isn't as appealing once you dig past the ideal surface and into the gritty details. Probably the best counter-analysis I've read so far is John Scalzi's: "The Problem With 1,000 True Fans."
Scalzi starts from the point of being someone who probably has at least that many True Fans already. And then points out a number of uncomfortable things, such as those fans being drawn from a base population that is at least two orders of magnitude greater. And that even though the tens of thousands of well-off Netizens represents a good pool of people from which Fans may be drawn it's still a very small pool and quickly exhausted.
Just to pick my own personal favorite example, the south-by-southwest festival this month features over 2000 bands, interactive artists/designers, filmmakers, and other creative types. Supporting just that one festival by Kelly's patronage model would consume nearly a quarter-million True Fans. And that doesn't even scratch the surface of the vast sea of writers, musicians, and artists who would like to get paid and maybe even make a living from their creative work.
That doesn't make Kelly's idea stupid - it just makes it not-completely-thought-out, which is OK. Right now you can cast your eyes around the Web and find a hodgepodge of "Donate" buttons and similar mechanisms for fans to express their direct support of creative types; these also have their pros and cons. We need more big thoughts on how to develop alternatives to (that can co-exist with) large corporate funding.
This is being painted in the context of net neutrality and copyright enforcement; I see it as a way to automate attacks on any particular users of any information. There's no reason this technique couldn't be used by, say, the Chinese government to disable access to Web sites it finds objectionable. Or paint your own picture.
The plan involves examining a torrent to see if it has material the MPAA doesn't want sent around, then selectively disabling pairwise communication between providers of the torrent and would-be consumers. The torrent identifies participants, so they can be blocked and Weaver describes a fairly clever scheme that disables pairwise communication without harming general network communication. The system has significant advantages to its users, not least of which are that it's completely automated and scalable. It also means AT&T gets out of the content-examination business and avoids the associated liability. The copyright holder (MPAA or other) is examining the content and assuming liability if legitimate content is blocked. This is the same situation we have now with DMCA 'takedown' notices.
The system isn't perfect - I can imagine counter-strategies - but it would certainly disable general P2P networks as they presently operate.
This mashup takes one of Barack Obama's New Hampshire stump speeches and remixes it with contributions from over 35 artists. The motivating forces behind this appropriation - the campaign doesn't appear to have authorized or endorsed it - include Jesse Dylan (son of Bob Dylan) and will.i.am of the group Black Eyed Peas.
I'm reminded of the point Cory Doctorow made in his latest piece for the UK Guardian Unlimited. In this entry in his "Digital rights, digital wrongs" series Doctorow argues for a tuning of the sensibilities of copyright law. In particular, the law doesn't distinguish between the reuse of a copyrighted work for a mass commercial project such as a blockbuster movie and the reuse of a copyrighted work for personal and noncommercial use.
Doctorow argues that "folk copyright" use existed for a long time prior to the net, but
Now you have billionaire media empires behaving as though parents should get a licence for a Prince song before they upload a YouTube video of their adorable toddler dancing to it.
The idea that individuals need lawyers to negotiate their cultural personal material space shows how broken current copyright handling is. Doctorow would "stop shoe-horning cultural use into the little carve-outs in copyright" and instead create a new copyright regime that treats small-scale copying differently.
Doctorow names (but doesn't point to) A2K, the Access To Knowledge project around reforms to the World Intellectual Property Organization (WIPO) treaties. A2K is trying to make this new copyright regime happen, but WIPO is a huge thing, dominated by big companies... err, excuse me, countries doing the work of big companies such as the US carrying the banner for the Copyright Cartel. Any change through this method will be many years in the making.
Meanwhile we have an election coming whose outcome just might change what positions the US chooses to defend at WIPO and in related forums.
Due to the explosive nature of personal writing and publishing, as well as the basic open structure of the net, the only possible way to enforce the kind of infringement management that the Cartel wants would be to "throttle" the most basic right of writing, that of free speech.
We're all aware that the Cartel would gleefully sign up for such a Stalinist regime - their entire model is based on them-as-sole-producers with the vast majority of us positioned only as individual consumer units. But there's no reason for writers or any other real human beings to sign onto this corporate notion. Doctorow points out that not only is it an insanely arrogant position to take, it's actually bad for writers, who are presently at the mercy of big publishing houses.
The streaks of independence that are beginning to be shown in, say, the music business are just not present in the publishing world. You can be as world-famous as a Stephen King or a Neil Gaiman and you still don't publish independently. You go through a major publishing house, you get the word rate your agent is able to negotiate, and you sign over your work to their corporate system.
Writers have griped about the system for as long as I can remember - I don't see that changing anytime soon. But it'd be nice for the writers to realize where their interests lie, and I don't think it's with the Cartel's position, which has little or nothing to do with the right to speak freely.
If you have a few minutes to spare, you could do a lot worse than to read Demonbaby's "When Pigs Fly..." rant. It's a history of the digital music part of the Copyright Wars, written from the point of view of someone who began as an industry insider (CD designer) and ended up mad as hell at the Cartel that crushed Oink.
There's nothing terribly new or revolutionary in the essay, but it does span the period nicely, in ranterrific fashion.
From personal experience I can tell you that the big labels are beyond clueless in the digital world - their ideas are out-dated, their methods make no sense, and every decision is hampered by miles and miles of legal tape, copyright restrictions, and corporate interests.
Yep, pretty much what I've been saying for (dear lord is it really) eight years now.
In a NY Times Sunday magazine article (that I won't link to because it's locked up behind a 'premium' wall) Rick Rubin finally admitted publicly what copyfighters have been saying for 8 or more years: the record industry's current business model is dead. *yawn*
So why is this getting all kinds of press coverage? Well, Rubin himself is pretty well known in the industry for a string of successes as a studio producer (e.g. Beastie Boys), a career-reviver (Johnny Cash), a record-label founder (Def Jam) and was recently named co-chairman of Columbia Records. He's also known to some as the producer of the infamous 12 Songs CD by Neil Diamond that contained Sony's rootkit.
Sandoval's piece for CNET, and a similar analysis by Nate Anderson for ars, highlight Rubin's plan for subscription access to music anytime, anywhere. Sandoval mocks the concept, noting that prior attempts at this "jukebox in the sky" have failed. Anderson further notes that Rubin still doesn't understand the notion of grass-roots buzz, since he apparently feels that Columbia can hire college kids to create buzz. What they're missing is that there is already a free cloud out there, whose mission is to let you get to your content any time anywhere that you have a live net connection. Google, anyone?
I freely admit that I've drunk the Kool Aid here. I hate the idea that Google's going to claim to own content I've uploaded to them and that it's going to index that content and sell it to marketers. I'm not a huge fan of getting ads with my email. But I loathe attachments and their virus potential more. I hate the proliferation of memory sticks and ipods and not being able to figure out which bit of my stuff is on which box. If people want to send me documents I tell them to put it on Google docs and share it with me. I store a fair amount of my own stuff up in the cloud - it's gigs of free storage and I can get it anywhere, independent of the device I use to access the cloud. The infrastructure could trivially handle my music collection and stream it, too. It's just a matter of negotiating the right fee structures to pay for the storage and bandwidth costs.
Anderson is right that DRM issues would still need to be worked out, but I don't regard those as insurmountable. The base line here is that the music business has to compete with free and I don't think anyone has done a better job to date than Google at monetizing "free" email, storage, and downloading. Of course it's not really free but since I'm not forking out large numbers of visible dollars and since they've put a lot of effort into making the experience as easy as they can figure out it registers as free.
For much of the past few years of the Copyright Wars I've been arguing that the Cartel should look at the bottled water business for ideas on how to sell a product at a premium price when that product has to compete with free alternatives. Since they don't seem capable of that, maybe they'll be able to recognize that free is always relative and pick a form of free that is already showing tremendous success.
Problem: you bought content locked in a DRM box but the entity that sold it to you went out of business. You now have the electronic equivalent of a paperweight.
DRM is usually sold in packages by very large companies that tend not to go out of business, like Sony, or Microsoft, or Google. And yet, though Google remains in business, customers who bought its DRM-encumbered movies are now being left high and dry as the company closes its Google Video Store.
There's a good point to be made here - peoples' legal content purchases ought not to be effectively yanked out of their homes just because a corporation goes belly-up or "exits the business." But this is remarkably like what happens when you purchase a physical good whose manufacturer ceases operation or discontinues the line. Parts and services become increasingly hard to get and the value of your purchase tends to go down steeply (antique and collector value notwithstanding). You can't buy leaded gasoline generally in the US anymore - if that's what it takes to power your car you are likely out of luck.
Furthermore, it seems to me that the issue here is not simply "DRM bad", however much I take that as an article of faith. The issue is that private holding of DRM keys and controls is potentially risky for consumers. There are other structures that could be set up to mitigate these risks. For example, a non-profit or quasi-governmental organization could become the repository for the keys and codes needed to keep locked content viable. Imagine a kind of Wayback Machine for DRM, if you will. Or a CERT for content keys. There might be a legal mandate to turn over the necessary data to such an organization as part of the shutting down process; or companies might do so voluntarily to avoid the kind of shame and opprobrium that Google got.
Part of any good model should be end-of-life planning. That we haven't done this for DRM-encumbered content is a flaw in our own planning, not necessarily a declaration that such planning is impossible.
Last week I commented on the sad state of patent effects on interface design work. Commenters to that entry pointed out that concerns over treble damages for willful infringement, concerns over having employees deposed in patent investigations, and the potential costs of infringement defenses all make it perfectly sensible for companies to shut people up in boxes of ignorance so there's no chance they might be exposed to patent information.
I seem to recall that the original purpose of patents, as written into the US Constitution, was to promote the progress of science. If someone can explain to me how forcing people to be ignorant of what's going on in their field of work promotes progress I'd be grateful. Because to me this is just exactly the opposite of the effects we ought to be getting. Paul Sherman, another professional in the user experience (UX) field, has a combination history and rant on his blog, talking about what this means for those of us who work particularly on the visible portions of software - the interfaces and interactions people have with them.
Engadget, among others, has a snippy view of the application, claiming that Apple's motivation is to "own" this form of keyboard-less interaction with devices. In particular this patent appears not to be about a specific dictionary or language - which are generally regarded as unpatentable - but rather about software and methods for using a large gesture dictionary and allowing meanings to be assigned in context-sensitive ways to different gestures in the dictionary. The application is laden with phrases like "for example" and "in one embodiment" that seem to be attempting to separate the methods claimed in the patent from any particular implementation.
In addition, the patent application incorporates by reference eight other granted patents or applications in process. This particular application has garnered some attention but it doesn't seem to be unique - it seems to be part of a process of Apple generating IP in this area. As with many of these things, there's a large bucket of prior art and it's not clear what, if any, of that art will be considered relevant. To my knowledge, nobody has yet tried implementing what I would call a gesture dictionary service that can be drawn on by multiple applications; all the implementations I know of embed the gestural language directly.
So in summary, I think some of the people up in arms would do well to read the application carefully and not treat this one application as anything hugely different from what has been going on in the industry for at least the last 15 years.
(Full disclosure: I did my Master's Thesis some years ago in the area of coverbal natural gesture, and studied a bit about gesture languages at that time.)
I get paid for being a usability expert, human factors and interaction designer. As part of that I read some email lists on which people in my field talk about things like work, design, and so forth. On one such list a discussion arose of Apple's recent patent application related to its touch interfaces ("Multi-Touch Gesture Dictionary", Application 20070177803).
Sadly, several people immediately raised an objection to discussing the patent, its claims, and so forth. Why? Because some list members work at companies that forbid them to access patents, issued or otherwise. Never mind that this information is in the public domain for a reason, the legal 'eagles' at these companies are actively working to block the line employees - designers, coders, etc.- from being exposed to this information.
Presumably the excuse is some kind of plausible deniability, but that's absurd. A product either infringes or does not infringe on the basis of its methods and operations when compared with the claims in the relevant patent. The knowledge of existing patents that the product's makers had or lacked isn't relevant to the question of whether or not an infringement occurred.
Perhaps there's a confusion between patents (public) and trade secrets (not public). Obviously one is not supposed to dissect a competitor's product in order to determine how it works and copy that. Patent law requires very specific disclosures and in theory a person skilled in the art is supposed to be able to reproduce the device or method claimed in the patent. Never mind that mere mortals can't make head or tail of what actual patent claims language says - we're talking theory here.
I suspect what's going on with these colleagues of mine and their employers is either gross incompetence on the part of the legal departments drawing up these policies, or overzealousness of implementation of policies that may not be as stupid as they seem when put in practice.
One alternative theory is that the extreme litigiousness around patents in the design and software business, and the headlong rush to patent everything, have created such an atmosphere of fear and uncertainty that companies are just calculating that ignorance is the smaller risk. That's terribly terribly sad, if true. Whether we like or dislike the current use of patents in the software world (I dislike the practice and am neutral on the theory) I can't see any possible way in which large-scale corporate-enforced ignorance can make things better.
Classically, the definition of insanity is doing the exact same thing over and over, expecting different results. By this definition the Cartel's jihad against sharing is insane. They've sued thousands of consumers into a vile kind of mutual embarrassment, and a couple dozen companies into bankruptcy. Yet sharing continues unabated. Some would say it's on the rise.
So if we postulate that the Cartel are neither stupid nor crazy, the question remains: why are they pursuing a strategy that is not only failed but clearly counter-productive in simple cash-value terms. (Of course one could ask the same question about the US's War on Drugs or various other governmental policies, but this is Copyfight, not Big Politics, so we won't ask those questions.)
For an attempt at some answers we now have a nice think piece by Greg Sandoval on news.com. He notes the usual facts, plus this week's addition to the "Copyright Graveyard" - TorrentSpy and IsoHunt, which agreed to block links to copyrighted material as part of an apparent attempt to stay the hounds at the legal door. Sandoval then turns to the question of why the Cartel continues to pursue an adversarial legal strategy.
One possibility, which the Cartel would like us to believe, is that they have a secret and very coherent plan to sue everyone into obedience. See above where we ruled out the possibility that they are in fact this stupid. Moving on.
A third possibility is that this is really a battle for control. Lawsuits are more or less rear-guard and distracting acts. The true agenda is for the Cartel to get the final say in what behaviors people can and cannot have. Ira Rothken, the lawyer representing TorrentSpy, points out that the Cartel have gone from suing hosts to suing software makers to suing network and link providers. If the original commandment was "Thou shalt not share" then the current incarnation is "Thou shalt not point out that someone else is sharing." That's a pretty scary reach and Rothken might be right. Or it may be that the Cartel are just evolving in their understanding of how sharing happens.
Finally, and most frighteningly, it's possible that the Cartel are gambling on a very large jackpot. Statistically speaking, if you bring enough cases you're going to get some judges that favor you. And one day, one of them is going to issue a far-reaching order like the one Chooljian put out in the TorrentSpy case. And if something like that happens, you can then run with it all the way to SCOTUS if need be. If something like that becomes the law of the land then the Cartel will have won the jackpot and all the money it has spent in lawyer's fees since Napster will be thought of as a prudent investment.
You may recall that Vista contains the first commercial incarnation of MSFT's built-in control facility for restricting what programs and data can be installed and run on PCs. Virtual machines can unintentionally fool, block, or thwart various of the checks that DRM software uses. Lai references unnamed "analysts" to suggest that concerns over DRM circumvention were behind Microsoft's sudden change of heart. Apparently they were about to relax the prohibition on virtualizing Vista Home editions then suddenly stopped.
Fisher thinks it's a step in the Microsoft-Apple war, with MSFT trying to defend its OS revenue stream. Could be. I do think Fisher's points are telling, to the extent that those of us who care about DRM and what Microsoft are doing in that area can safely ignore the virtualization debate.
In the past it was fashionable to assert that the Internet treats censorship as damage and routes around it. In the current era we might say that "Web 2.0 treats censorship as inspiration and creates performance around it."
Witness the attempts by the AACS Licensing Authority to keep HD-DVD and Blu-ray cracks off the net. The censors and the crackers have waged a running battle that reached something of a peak this week, when a Digg entry containing the 09 F9 crack was posted. Digg received a quick DMCA takedown notice and away went the entry.
But Digg isn't a sole-author site. Its content, like that of many Web 2.0 sites, comes from its users. Those users were inspired by this act of censorship and simply bombarded Digg with submissions containing the key sequence. According to Eric Bangeman in Ars Technica:
For a few hours, Digg's front page consisted of little more than a succession of links to the hexadecimal HD DVD key.
A good Web 2.0 site listens to its creators and Digg is no exception. Within hours the site issued a pledge that it would not kill stories or comments containing the key. I don't think it's possible to have a clearer distinction between the old (Cartel) business model and the new (Web 2) model. The old model treats customers as enemies to be censored, sued, and publicly pilloried. The new model treats customers as valuable assets, key contributors, and policy makers.
Now let's see which model wins in the marketplace, shall we?
Because now you don't just do this with a few friends. You do this with a few friends, and post it. And find others who do it. And someone takes all those postings and creates a mashup of THAT. The 'phenomenon' is a meta-commentary on the popularity of the band and video as well as a form of creative art reflection that wasn't really possible without the technological underpinnings.
Most new art forms tend to begin by imitating previous forms. If YouTube and its contemporaries are media for the creation of new art forms then what we're seeing are just the first baby steps, and already they raise interesting questions of imitation versus originality. See, for example, what happens when the 'phenomenon' spins off what can only be called a derivative work: Wakamatsu and Fecteau ice dancing.
As I said at the start, I find this kind of thing fun and funny. I'm not sure it has any significance, yet, but I'm quite sure it will grow some significance, and probably soon.
Inside you'll find two articles I can't possibly do justice to in a blog posting. Both are brilliant examinations of intellectual property, use/reuse, and repurposing of creative content. Both come from perspectives we don't hear often enough - the creators and users of the material.
The first piece is called "On the Rights of Molotov Man: Appropriation and the art of context" by Joy Garnett and Susan Meiselas. This item centers on a particular image - a Sandinista revolutionary preparing to throw a molotov cocktail. You can see a copy of the image on Harold Pinter's Web site.
In discussing the image Joy Garnett describes how she paints from photographs, and how her painting from this photograph went on to be used. The painting from the photo appeared in an exhibition, questions were raised about the appropriateness of use, letters from lawyers were sent, license fees were demanded, and the story hit the blogs. Garnett gives her perspective and raises questions on the issues of control around what was essentially a news or documentary photograph. Nobody "posed" for that picture - it captured a true event as real people went about overthrowing a dictator.
Then follows a response from Meiselas. She gives history and context for the photograph, shows how it became an emblem for the Sandinistas and was appropriated by them for political purposes, and finally introduces us to the actual person in the picture, whom she tracked down many years after the original photograph.
This pairing of creative views on use and appropriation is brief and poignant. I found myself sympathizing with both artists and with the notion that creative control means something as well as freedom to (re)interpret creatively.
Harper's then follows up with a stunning piece by author Jonathan Lethem called "The Ecstasy of Influence." The piece is subtitled "a plagiarism" in much the way that some things are subtitled "a novel" or similar self-descriptives. Lethem's essay is long and wide-ranging, covering many arguments that will be familiar to Copyfight readers. He touches on appropriation, literary theory, influence, and has no lack of harsh words for Disney and their attempts to create a one-way gated cultural community in which they take popular common stories and create perpetually locked content that cannot then be reused by anyone else.
Lethem's thesis is that every act of creation is actually an act of appropriation - it's just that some appropriations are more explicit than others. Even in the non-explicit cases, Lethem argues, nobody creates in a vacuum. We create out of cultural traditions and within genres that bring strong influences, whether it's science fiction novels or country music. Attempts to draw bright lines and say that one side of the line is "original creation" and the other side is "impermissible copying" are doomed and wrong from the outset. Lethem argues that modern copyright law is distorting the purpose under which the Constitution sets out the rights. In particular, copyright is supposed to exist in the US to promote useful progress. The Constitution says nothing about guaranteeing income or compensation for effort. Copyright, for a limited term, to promote progress - a general social good. Nothing to do with individual welfare, providing for authors' children unto the Nth generation, or any of that.
Lethem takes particular delight in cases where appropriation transcends traditional boundaries - he gives the example of receiving a copy of his own novel Gun, with Occasional Music that had been cut into the shape of an actual gun by a modern artist. Lethem is erudite and wide-thinking and persuasive, if somewhat scattered and not extremely coherent.
Or is he? Remember that bit about "a plagiarism?" After you've finished reading the essay, Lethem lifts the curtain and lets you see the gearing underneath. Almost all of the essay is plagiarized - copied from other sources. Lethem dissects his own collage for us, giving precise boundaries and explicit sourcing for each piece of the pastiche.
Finally, he goes meta and gives a quick overview of the notion of a collage text, of which this essay is an example. It's brilliant (can I say that enough times?) and eye-opening. In a way it's a radical view, to reject entirely the notion of original creation. In another way, it's a well-explored literary theory that has been known in academic circles for decades but that has not penetrated the Copyfight discussion in any significant way.
Another big thinker whom I respect even when I disagree with him: John Dvorak. His latest is a piece in PC Magazine in which he calls Internet Explorer an "albatross" and a "costly gaffe." The piece is more about business strategy than Copyfight issues, buit it touches on the part played by the Eolas patents and their impact on Microsoft's core business (which is selling Windows everywhere to everyone for everything). In essence, Dvorak argues that by building and then deeply tying IE into Windows, Microsoft opened itself up to a whole range of new attacks, including patent litigation.
I think Dvorak overstates his case when he claims that all of Microsoft's legal problems stem from IE in some way (anyone besides me remember Burst?) but he's not too far off.
At a book talk last night, Benkler outlined an economic history of information production. We're moving from the age of industrial information production to one of social information production. Ever-faster computers on our desks let us individually produce what would have taken a firm to organize just a decade ago. Ever-further networks let us share that with the world as cheaply as storing it for ourselves. This "social production" is distributed and motivated by social relationships rather than market signals.
As Benkler contextualizes this activity, it's not outside or in opposition to economics, but part of the economy. Commons production can be used by market-driven actors and by ideologically motivated purists. As it spreads, though, it enhances not only bottom lines but political freedom.
In an example near to my heart, Benkler showed the pressures e-voting vendor Diebold faced from the circulation of source code and internal emails. But in Benkler's story, the chief heroes weren't the lawyers wyho stepped up to defend against claims of copyright infringement -- after all, it took a year before the court ordered Diebold to pay our costs and fees -- but the distributed participants who published and kept the memos and code online in the face of legal threats. Even without the legal muscle of a New York Times, activists kept the story alive through social propagation.
Benkler's slide set ended at a moment of conflict. The new modes of social information production threaten established industries and so industral infogiants fight back with old weapons: legislation such as DMCA, monopoly power in non-neutral networks, patent thickets. Yet Benkler is an optimist. He's leaving future slides to be completed by the socially organized forces he celebrates. Here's the wiki!
A few days ago I ranted about thoughtless reportage - basically reproduction of press releases masqueradings as news. Jumping now to the far end of the spectrum I'd like to point to a thoughtful piece written by an intelligent man, even though I happen to disagree with many of his points.
To wit: Paul Graham's essay on "Are Software Patents Evil?" Graham is a hacker, entrepreneur, philosopher, and yes software patent holder. The essay derives from a talk he gave at Google on the topic. Graham's essay draws mostly from his point of view as adviser to several start-ups, all of whom care about patents. He reasons that patents aren't as much of a problem as people think, mostly because of what's in peoples' economic interests.
He asserts that people opposed to software patents must then be opposed to patents in general. I think this is false. Software has a number of properties not shared by physical processes and instantiations that make patents problematic. These include multiplicity of representations (source language, intermediate language, assembly language, etc) being equivalent, an extreme flexibility on the topic of what is process and what is the data operated on by that process, and so on. Software is neat and cool and (unlike some Copyfight readers) I think it is deserving of some intellectual property protection for authors who choose it. But I think patents are a bad tool for it, and they're being badly abused. Thus I oppose software patents but I'm fine with other uses of patents.
Graham attempts to address the issues of abysmal patent quality, noting that the intersection of software and government almost never turns out well. True, but not the whole story. Prior art, for example, is pathetic in software patents compared to other patents, and the USPTO is absolutely criminal in its failure to enforce prior art (and associated nonobviousness) requirements. Given the state of the law and practice, Graham argues that companies wishing to compete must apply for patents. He makes the analogy to a hockey team that doesn't check opponents - to which one might counter that if you skate fast enough you can avoid checks and not have to do them yourself. So much for the power of analogies, but Graham's point of view is held by quite a few folk.
Graham blames companies such as Amazon not for getting patents - they're simply maximizing their take from the current free-for-all system - but for enforcing silly patents. Though he doesn't use these terms, he describes the classic "sword" and "shield" approaches to patents. Unlike a trademark, a patent holder is not required to vigorously police any potentially violating activity. A patent holder can simply sit on the patent, using it as a "shield" to protect his own investment. Amazon used its "1 click" patent as a "sword" to attack Barnes & Noble for having a similar checkout system.
Now the question is: who actually sues whom over patents? Graham points out that much more often it's small companies suing larger ones. Suing startups is often a waste of resources because you can't get money out of them. If they're a threat you buy them, or at least buy the intellectual property you care about. Most startups are eager to strike licensing deals for their IP with big players and patents give them leverage in those negotiations. Or if you're big and mean you lock out the startup and its novel technology. A patent for something on a PC is worthless if you can't get that thing to run on a WIndows OS.
Graham also injects a heavy dose of fatalism (his own word) into the picture. Basically, once you're big enough to be successful and have money, you'll get sued whether or not you have patents. But you shouldn't worry about it, because it shows you're worth noticing. Being noticed means you're a candidate for buyout, which is the exit strategy for most startups. And if you're not going to be bought out then you need to go to the negotiating table with the existing big players, all of whom have big patent portfolios. Your portfolio in this view is table stakes - it gets you respect and a seat. What's actually in the portfolio isn't really that relevant; what's relevant is whether you can strike the kinds of mass cross-licensing deals that allow the big players to continue in business without having to worry about every clause of every patent in every competitor's portfolio.
I view this as a kind of insanity, much like the nuclear Mutually Assured Destruction phase of the late 20th century was a shared insanity. Armed truces aren't inherently stable and are always unfriendly to new entrants who can upset delicate balances of power. That's not healthy for software in general. Graham would probably agree, but he points out that for all the big press over certain cases, patents play a much smaller role in software than they do in other industries. For example, other industries regularly see large-scale lawsuits over patents well before products are released - think of the drug industry for example. That's exceedingly rare in software, and Graham gives some reasons.
First, the complexity of software renders most patents trivial by comparison. I may have a patent on an order checkout method, but that's only a tiny fraction of what's needed to write, run, maintain, enhance, and grow an online store. Second, software has a tradition of the young and fast displacing the old and wise. Patents are a way of respecting "how it was done before." Software startups take pride in DISrespecting that kind of thing. Third, the nature of the software business is that we inherently engineer around. Graham says that startups rarely try to take on big companies head-to-head - instead they try to engineer paradigm shifts in which the old way is irrelevant, and so are the patents that protect it.
Graham gives a lot of weight to "public" opinion, by which he means hacker opinion. Here I think he's being too optimistic. Microsoft has done a ton of evil things and not suffered much from public backlash, even when they were being flayed in the mainstream press. Sure, principled hackers will avoid evil companies and find better jobs elsewhere, but the globalization of software means that for every principled American hacker there are 10 or more overseas developers who may be less principled but can still produce damned fine code. And maybe cheaper, too.
Sure, he's talking to Google so he has to give at least a nod to the "don't be evil" principle, but I think he's more on the mark with earlier points.
Graham spends some time making a point I do agree with, which is that in the absence of patents (which force at least some kind of disclosure) people will attempti to protect things via secrecy, usually enforced with heavy-handed laws. He notes that this is partly what the Cartel are trying to do, and he's right. He also notes that this encourages some of the worst practices in business.
Graham concludes by stating that he (and his co-investors) advise startups to ignore patents. And they put their money where their mouths are.by taking personal financial risks in such startups. I have to respect that, no matter what else I might agree or disagree with him about.
I hate the inability of reporters to think critically, acting instead as echoing mouthpieces for whatever corporation, government, or entity has released the press clipping they're using in place of doing their actual job of, you know, reporting.
First up, the headline: "Hollywood studios sell movies on the Web". Actually, what they're selling is the ability to download and view a copy of the movie. So a better headline would be "Hollywood studios sell additional movie viewings via the Web." Let's call a spade a spade and refer to these as "tickets" because that's the model at work here.
Next, the subhead proclaims: A FIRST: MAJOR FILMS ARE AVAILABLE ONLINE TO OWN (caps in original). Leaving aside torrents and other illegal sharing, this ignores every other download scheme that has preceded it. It also carefully elides the key word "some." In fact a better phrasing would be "Hollywood makes some big-budget films available." I dispute the word "own" here because in fact what's being sold is some DRM-wrappered package of bits that you very clearly do NOT own. I own my DVDs. I can copy them, watch them on different players, resell them, et cetera. None of these things are do-able with these latest downloads. Thus "own" is... well, let's be charitable and say it's misleading.
Bravely we soldier forward to the body text where we read: "The films can't be burned onto a disc for viewing on a DVD player. Still, the move is seen as a step toward full digital distribution of movies over the Internet." This prompts any critical thinker above the age of 12 to say "by whom?" What person outside of the Cartel could possibly view this as a step forward? This is along the lines of stores that tell you they've reduced their hours, cut service, eliminated perks "for your benefit." Um, no.
Then we're told that these download tickts "will be priced similar to DVDs -- between $20 and $30." I don't know about you, but the last time I paid $30 for a DVD was quite some time ago. Most are going hot off the legal press for $12-18, depending on which discount outlet you frequent. Perhaps Mr. Gentile shops at more upscale boutiques for his DVDs, but more likely he didn't even bother to check one basic fact before filing his copy.
Finally, we get a quote in which Jim Ramo, chief executive at Movielink (the Cartel arm with exclusive license to sell these tickets) gets to gush rapturously that "Digital delivery hasn't arrived until the major studios allow home ownership, and now they have and now digital delivery is very real." Gag me with a sycophant. First off, digital delivery arrived in my home the day the cable company put in a digital box, about three years ago. Second, "allowing" home ownership makes it sound like the king has deigned to bestow his blessings on the populace. OK, sure, that's how they see the world, but it's still disgusting and shouldn't be mentioned in public. And finally, I think I already addressed the "ownership" lie. Letting a Cartel exec repeat the lie unchallenged doesn't make it true.
OK, I can't bear to continue the point-by-point dissection. The gist is that it's PC-only, some movies, doesn't include Disney at all, only gives a few of the films on the same day as DVD release - most are delayed 45 days - and is just overall a continuation of the sad sorry attempts by the Cartel to defend their antiquated business models. Oh, for a press reporter who would actually report THAT news.
Neil Gaiman pointed to this entry in Diane Duane's blog. In it, Duane proposes an experiment in direct creator-audience business. Basically, she has the outline for a third novel in a series where the first two didn't sell all that well. Given the lackluster sales her regular big-market publisher won't take a chance on the third. But there's still a dedicated fan base that wants to see the story concluded, as well as completists, collectors, and those who might want the cachet of owning a novel written "on spec" by a big name author.
A niche audience to be sure, but isn't the 'net about connecting up niche groups and letting them do things they couldn't do as isolated individuals? Duane estimates that the per-person cost of such a book would be USD 20-25 in paperback form. That's a hefty premium over even today's inflated paperback prices (typically $5-8) but not out of the reach of people who are collectors or who are used to paying for specialty items.
What Duane is asking is for feedback on this idea - the email address is in her blog - and for people to publicize the notice. I'm not personally a Duane fan, but I am a fan of experiments in new business models. So I'm publicizing and urging you to do the same. Blog this, put it in places where people who care about publish-on-demand and similar topics will see it.
Linux Journal Senior Editor Doc Searls, in a lengthy essay that's more than worth the time it takes to digest: "We're hearing tales of two scenarios -- one pessimistic, one optimistic -- for the future of the Net. If the paranoids are right, the Net's toast. If they're not, it will be because we fought to save it, perhaps in a new way we haven't talked about before. Davids, meet your Goliaths."
Update: Tim Lee, offering a nearly as lengthy rebuttal: "I think the author of the article is wrong. Indeed, with all due respect to the people pushing so-called 'network neutrality' regulations (whose arguments I find persuasive on a lot of other issues), I think it’s rather silly. The Internet is a massive, chaotic, fiercely competitive ecosystem. No one carrier owns more than a tiny fraction of its capacity. No one company controls more than a tiny fraction of its content. In short, no one company is ever going to control the Internet."
Update #2: I haven't read it all the way through yet, but it appears that Jonathan Zittrain's latest paper takes a bird's eye view of the conflict, arguing that in order to salvage what's positive about the Net (its "generativity"), we may have to think through the unthinkable -- an unprecedented, but not fatal, level of technological "lockdown."
Two leading science organizations have denied the Kansas board of education permission to use their copyrighted materials in the state's proposed new science standards because of the standards' critical approach to evolution.
The National Academy of Sciences and the National Science Teachers Association said the much-disputed new standards "will put the students of Kansas at a competitive disadvantage as they take their place in the world."
Apparently, the Kansas standards document quoted extensively from NAS and NSTA reports in the process of singling out evolution as a controversial theory. The organizations denied permission, but (and I haven't seen the Kansas report myself) unless the use was so extensive as to misappropriate the organizations' reports, it could still have been a fair use. (To be fair, the fault lies as much with the Kansas board of education for thinking it needed permission, if its uses were fair.)
Even though my politics are more flying spaghetti monster than "intelligent design," I don't think this is a proper use for copyright. Copyright is not about endorsement or agreement, and it's not a right to stop criticism, even ill-considered criticism. Quotation can be fair use even in a context the original author abhors -- that's precisely when we need fair use most, we on all sides of a political debate.
The organizations are free to broadcast their loud disapproval of the uses to which their publications are being put, and free to sue for misrepresentation if false statements or positions are put into their mouths, but asserting copyright rights seems a heavy-handed way to win a battle of ideas.
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.
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.
Now Cory Doctorow, who has been spreading the "copyfight" meme like a blazing inferno, has finally been asked, point blank, "What does 'copyfight' mean?" Here's his definition, in the context of an interview about what's happening at the World Intellectual Property Organization (WIPO):
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.
My own attempt at a definition: the copyfight is the battle to keep intellectual property tethered to its purpose, understanding that when IP rights are pushed too far, they can end up doing exactly the opposite of what they're intended to do. That's why I find James Boyle's recent series of articles on "IP stupidity" such a satisfying read. He advocates for smarter IP, not no IP. And by smarter IP, he means IP that doesn't threaten free speech and democracy, competition, innovation, education, the progress of science, and other things that are critically important to our social, cultural, and economic well-being.
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.
What a nice invitation. Off I went for a visit. And found this post describing an interaction with A2K prononents at the WIPO Development Agenda meetings:
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.
Good grief. What's next -- spitballs?
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.
Imagine a world where lawyers in technology cases don't have to live in fear of the judge uttering the "h"-word. Terrific, eh?
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?
I'd like to hear the answer to that one -- as would, it appears, former Posner clerk and MobBlogger Randy Picker, who teaches future judges:
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.
Here's how Siva expresses it:
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?
On my way home from work the other day, I saw a billboard advertisement for what I believe was a Bose iPod SoundDock. I may be imagining things (I can't find the image online), but I believe it had tiny pink hearts, musical notes, and pirate skull and crossbones symbols like the ones on this shirt emerging from the speaker. It was not, however, called "SoundDockster."
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" infringementterms that are not yet fully defined in this contextthe 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.
And of course, this is where we get into the "thought-crime" aspect Cory presses in his reaction piece for Popular Science. "You, sir, knew your software could induce people to infringe copyright. As exhibit A clearly shows, you knew it on December 31, 2006, when you sent this email to your colleague describing..."
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.
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 theres 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:
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.
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.
In Search Of: A Positive Agenda for the Copyfight: "Most copyfighters, myself included, are intent on finding the right level of copyright, not freeing us from it entirely. That seems to me a very progressive goal itself. The main problem, I think, is that most people really don't care about copyright; they don't realize how important to a democratic culture it is. We don't lack for potential progressive prescriptions. We lack agreement on them and we lack the marketing."
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.)
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.
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.
[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.
If I understand him correctly, Derek is arguing that (1) copyright infringement can indeed be beneficial in the larger scheme of things, but (2) publicly justifying it on that basis means we suggest, wrongly, that there should be no cap on bad behavior, so the question becomes, in the case of filesharing, (3) hasn't infringement already done its "job"? Shouldn't we "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.
For some time now, Derek has been providing a series of detailed reviews of a variety of authorized services. I wonder if part of the goal has been to investigate whether the recording industry is ready to offer people a genuinely fair deal, to capitalize upon rather than crush new technology, and to move forward with digital age business models rather than stick its thumb in the dam.
I'd like to open the floor on this one. What do you think?
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 DemocratsIm onecould appreciate the Eisenhowers 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 complexthe Entertainment-Copyright Complex.
Over at FindLaw, Julie Hilden has taken it upon herself to explore the theoretical implications of the much-discussedflash 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?
Hilden suggests that if Googlezon's bots copy the best stuff from the Net, personalize and deliver it to you, it could create a compilation so attractive, you'd be tempted to give up ordinary newspapers and their online outposts altogether (many would argue we're well on our way). The question is, at what point will the bots become so good at what they do that a judge will feel compelled to protect the original sources?
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.
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.
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.
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.
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]
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]
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.
As Ernie advises, read the whole thing.
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).
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.
The three flavors in this particular tasting: "maximalism," "authorial romance," and the legacy effects of "industry contract."
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.
I admit I'm biased: I like Geist's work, I'm impressed by the diligence he's shown in dogging this issue over the past year, and his study is solidly in agreement with my speculations and intuitions. In particular, he points out that not only is there no evidence that the Canadian recording industry has sustained significant financial losses in recent years due to decreased music sales, there's no evidence that losses have harmed Canadian artists.
Like many researchers, Geist begins with the industry's own numbers - something mainstream media seems incapable of doing - and notes that via simple calculation one can put the lie to industry's vastly exaggerated loss figures. The industry itself seems to be capable of doing better science, but when the answers come out in ways they don't like, they suppress the findings. Geist notes both an Economist story (subscription required) and a Canadian government study supporting this claim of suppression. Shades of tobacco industry and global warming denial.
Geist's report also notes the kind of phenomena that should be analyzed if one wants to understand the change in the music landscape:
- the influence of DVDs
- the rise of big-box retail chains, which carry much smaller inventories of CDs
- economic downturn
- changes in personal habits away from CD-based music and towards other entertainment forms
Clearly the existing services aren't revolutionizing anything - they're not well-known, they have technical glitches, and none of them seems to be willing to make the kind of serious effort at seamless user experience that I think will be essential to success.
Despite the popularity of DIXV and BitTorrent it's still considerably harder to find and download movies on free nets than it is to find and download music (or porn :). This gives the studios time and a potential opening. Their model doesn't have to be perfect; it just has to be a bit better than the nets and it should succeed.
However, there are serious issues that have to be resolved at the business level. For example, how will downloadable movies respond to the region-coding locks that cripple global DVDs? Will they make such locks obvious and more annoying? Will they try to replicate them? On another front, will downloadable movies be rentals, ownables, or rent-to-own? Will they require pre-selection (a la NetFlix) or will the services try to offer video on demand? Will a service try to appeal to the film buff, offering a large library and back-catalog or will it be hit-oriented, with something like the 100 most popular titles available?
All of these options can be done with current technology - which way any particular service goes is therefore a question of business model and how it wants to position itself in the consumer mind. Unfortunately, none of these models seems like a sure thing, so conservative CEOs are being... well, conservative. Meanwhile, consumers are waiting, still waiting...
The second Signal to Noise conference begins to the sound of "Sexy Jesus" beating through the Ames Courtroom in Austin Hall at Harvard Law. ...Charlie Nesson begins by saying the aim of law is to create a culture in which we can have freedom and creativity in peace. He talks about copyright's original balance being continuously upset by Congress's one-side expansion of the length of copyright's protection. He points to the expansion of copyright across space as well, beginning with Reagan linking copyright to trade expansion.
More excellent running notes here -- and no doubt much more to come. And keep an eye on John Palfrey's weblog, where he's helpfully tracking coverage.
...and I don't mean that metaphorically. I don't really have the energy for another Big Thoughts post, but this story deserves a lot more thinking than I've been able to give it. So I place it out here for your consideration.
Unless you've been hiding in a hole for the past few years, you are aware that India is the source for generic copies of life-saving anti-AIDS drugs for literally millions of people in the non-industrialized countries. This bill will put a stop to that for new drugs. If you're up on HIV/AIDS thinking, you know that the virus is very good at developing resistance to drugs and a fairly steady flow of new treatments is needed to combat this.
That's not hysteria. MSF is not some radical anti-WTO group, nor a radical anti-intellectual property organization. They're a group of doctors, on the ground in dozens of countries, treating millions of HIV/AIDS patients for whom the steep drop in prices over the past few years, as Indian-made high quality generics have become widely available, has meant a new lease on living. Raise the prices even a trivial amount (by Western standards) and you put them out of reach of hundreds of thousands of people, not to mention stalling out efforts to get the drugs to millions more who need them.
Now we face the issue - is this an appropriate use of intellectual property protections? Does the right of a corporation to make a profit for its shareholders trump the right of these people to live for a few more years with their disease kept in check? I hate questions like that.
Drug companies pull out the "funding research" card. It is true that income from patented drugs funds research. It also funds a massive advertising and lobby machine. Last I looked, US drug industry spending on advertising exceeded spending on R&D by a significant fraction. On the other hand, I do not believe that public need destroys business considerations completely. I choose to invest my money in companies that behave in what I consider socially responsible fashion, but I agree there are other ways businesses can operate.
A balance is needed. I'm not comfortable with the mental image of lavish boardrooms and skyrocketing company profits (they're consistently the most profitable industry in the US) as a shining metal beacon in a sea of dark-skinned misery, death, and suffering. Conversely, I'm not comfortable with the notion of a national government appropriating the fruits of labor (corporate or individual) because it has determined that these fruits meet a real human need.
And I hate not having an inkling of how to get progress on this issue at a pace that has even a glimmer of hope of keeping up with this global pandemic.
I'm unhappy with the kind of reportage we've seen on this situation. For the most part, reporters such as John Borland have positioned it as a "war" between little-guy hackers and big companies - in this case Apple. There's talk of "back doors" and such. All of it is posited in adversarial terms.
I think there are clear parallels here between what the individual vendors of DRM-encumbered digital media are doing and, for example, the fight over the broadcast flag. As in that case, what we have is one group (vendors, Hollywood) trying to exert or extend control over what another group (consumers, electronics industry) does in the way of new and innovative uses. One side has its model (terms of service) for how things ought to be done and anything outside of that model is treated as a threat to be countered. The reportage I complained about earlier only feeds into this meme.
Posit a different scenario, one that might be headlined "iTunes recognizes new revenue stream." Instead of trying to force everyone to use only their client (which is, as far as I can tell, not a revenue source in and of itself), Apple could welcome any compatible client that helped people buy music from their store. Look, for example, at the Web services interfaces that Amazon has published.
What Amazon has said is, effectively: "We don't know all the possible ways to promote our products; come up with something that works for you and we'll be happy to collect the income." This is the source for interesting hacks, too, like the AmazType page I blogged last week.
I think what we're seeing is, in part, fallout from a campaign the Cartel began last decade to control the language and thought processes around digital expressions and aintellectual property. Sharing became "piracy"; copying became "theft"; copy rights were elevated to a level equal to or even above physical property rights. We're now in a situation in which it's nearly impossible to put forth positive, cooperative, or even innovative approaches. Positions have hardened, millions of dollars have been spent, lives have been upended, laws have been passed. Even the educational system has been recruited to reprogram potential future free thinkers.
But all wars have to come to their ends, including the Copyright Wars. I feel it is incumbent on us to extend our thinking and promote - at least once in a while - the notion that there are peaceful, mutually beneficial ways through these issues. I am continually reminded of Gibson's dictum that "the street finds its own uses for things." No matter what technology or innovation we put out today, tomorrow's children will use it for things we've not thought of, in ways we haven't imagined. I think this has been true for all of human history and nothing the Cartel or Apple or any other large organization does is likely to change it much.
My guess is that PyMusique will go down as another tempest in a teapot and be forgotten in a few months. Longer term, though, we will still have to find ways to make a truce and a cease fire and eventually a peace. I don't have any grand ideas of how to do that, but I have an unshakeable conviction that it has to happen.
Together, Leonhard and Kusek describe a future digital environment for selling music "like water" rather than by unit, arguing for a Netflix-like system where you "rent" access to music and musicians are paid a share of the money collected based on what you listen to. Explains Leonhard:
The battle for distribution and delivery of music is just about over, because pretty soon the digital availability of music anytime anywhere will become a default (in away, it already is!). EXPOSURE and DISCOVERY will then emerge as the biggest must-haves in the future -- just getting the right user to pay attention to you. Music will "feel like free" and will flow like water -- everybody gets music, everybody pays but it will still "feel like free."
Well worth the read -- and a nice opportunity to check out the previous interviews in the series, which together make for a broad-yet-never-shallow survey of current perspectives on the so-called digital transition:
I can't come up with a coherent explanation of this. On one side we no doubt have the Cartel crowing victory in their jihad against their customers. Presumably more people have been scared into buying CDs? I find this hard to believe, given that all the ratings metrics I could find indicate that downloading via P2P nets is at an all-time high.
On the other side, Copyfighters including myself have claimed that CD sales were falling because the product sucks and is too expensive. That didn't change in 04, so far as I can tell. Retail prices held pretty steady and the vast majority of Cartel output is mega-hit-oriented paptastic products just like the four years preceding (or more like the 14 or 24 years preceding, but I digress). Can a few mega-hits such as Usher's 9-million selling Confessions really lift an entire nation's sales numbers?
If both sides' main arguments are wrong, to what can we attribute the rise? One thought is that it's a general economic trend. People and the economy were generally better off in 04 and perhaps more dollars in peoples' pockets translated into more entertainment spending? But if that's true, why have people shifted their dollars back into CDs when in the preceding years they were spending their entertainment dollars on games, DVDs and movies, all of which were enjoying robust growth as CD album sales slid down?
In the copyright and First Amendment case Harper & Row, the Supreme Court famously called copyright law "the engine of free expression." Indeed, properly limited, copyright can be an engine of free expression. However, when not properly limited, copyright can, instead of promoting free expression, become an engine of censorship.
Many have argued this point, but seldom to you see such blatant and concrete examples of this phenomenon as when the Walt Disney Company aligns itself with would be censors of "dirty bits" in order to promote expanded copyright law. [...]
Is it a coincidence that the copyright industry (which usually celebrates the First Amendment) seeks to get in bed with censors? I think not.
When most people think about creativity, they imagine the lonely poet in the garret, or Jackson Pollock poised over an enormous canvas with a dripping brush. Seth Schoen, on the other hand, thinks about a squawking iPod. Deeply. And manages to make tangible the things that keep technological innovation strong and healthy -- the conditions that nurture new ideas and keep the garden growing.
User innovation and the lack of passivity. Apple didn't intend for third-party software to be used with the iPod; not only was Schneider unconcerned with this, he ended up using the iPod in a way that its developers wouldn't have anticipated (and, if they've heard about it, are probably amused or startled by). He certainly refused to limit his thinking to what the original manufacturer had in mind; he insisted, on, well, thinking different.
Consciousness of history. This problem was solved before in an earlier generation of technology. As Dave Farber has often pointed out, it's tragic that computer scientists and programmers working today are often thoroughly ignorant of what earlier generations have already invented and implemented. Even more than other fields, computing may be repeating and duplicating effort all the time. The notion of modulating digital data as a waveform at audio frequencies has been deeply important in digital communications, but it's easy enough for people who don't use a modem any more to forget it -- never mind people who (like myself) have never had to use an acoustic coupler.
An appreciation for the universality of the machine. The idea that data is data and that representations and encodings of it are merely accidental goes back, depending on how you want to count it, decades or centuries. (See, e.g., Umberto Eco, The Search for the Perfect Language (Malden, MA: Blackwell Publishers, 1997), for some antecedents of this idea in the days before Shannon, Turing, and von Neumann.) But even so, we can get stuck in what cognitive psychologists call "functional fixedness" and refuse to think about data outside of its current representation. ...But Schneider thought with an abstraction and generality that befits an "information age"; he knew that bits are bits, from a communication engineering point of view, and meaning comes after, at another layer.
Hack value. It can be risky to describe something as having "hack value" ...So let me note the ...famous discussion in The Diamond Age: "Pardon me, Your Honor, the concept is not easy to explain -- there is an ineffable quality to some technology, described by its creators as a concinnitous, or technically sweet, or a nice hack -- signs that it was made with great care by one who was not merely motivated but inspired. It is the difference between an engineer and a hacker."
We need many, many more technically oriented people writing about what makes innovation work (or not). What better way to demonstrate what we lose under laws like the DMCA/government technology mandates like the Broadcast Flag/future Induce Act(s)?
If you've seen my blogging previously at tech_ip you know that I'm in favor of something ASCAP-like for digital music. That is, I'd like there to be a central repository into which artists could deposit their digital works and from which anyone would be free to license works for download, streaming, exhibition, etc. One of the reasons I'm pro-Creative Commons is that I think we need much more experimentation in this area. Let a thousand flowers bloom.
The concept of a patent pool is pretty much exactly what it sounds like - companies contribute their patents and the pool is licensed as a whole. In this case, MPEG LA licenses add a few bucks to the cost of a DVD player and a few pennies to the cost of a DVD. In return, the entire process of licensing relevant IP and remunerating inventors is vastly simplified. This is, potentially, quite good.
Of course, as Cohen points out, the devil is in the details. Past patent pools have had a checkered history, with some being obvious attempts to circumvent price-fixing laws. IP holders probably make less money by pooling their technological innovations than they would if they could license everything separately. However, from a market standpoint, removing that large an amount of friction (MPEG LA has 650 patents from 24 holders) is likely to be a huge win.
From a consumer perspective it's also likely to be a win, as it means companies will have an easier time making cross-compatible systems and should be able to focus their attention on new innovations instead of on trying to worm their way around some patent they can't manage to close a licensing deal on.
Unfortunately, one of the thorny issues missing from the article is that of royalty-free (RF) or donation of patents. I'm guessing that pool participants would give up their ability to do that, which would be bad for free/open standards and software, but that's not immediately clear.
I don't often get the chance to visit Susan Crawford's weblog, but when I do, I'm always well rewarded. The latest gift is a series of posts analyzing various contemporary developments in Internet law and policy from the perspective of none other than Ben Franklin. That's right -- Ben Franklin, whom Prof. Crawford argues would surely have blogged -- pseudonymously, of course.
In the latest post, Prof. Crawford nicely articulates the reason why so many people are passionate about protecting the Internet:
Amateur musicians flock to concerts; amateur radio enthusiasts keep plugging along; amateur astronomers add to our knowledge of the universe. The interactive, networked screen makes it easier for all of these amateurs to find one another -- joined by the internet as well as by their common interests. The net can be used to create intellectual common areas of all kinds, built by gift. Code is love as well as law.
This gets at something we all love about the Internet: it's a space for the curious, for the Ben Franklin in each of us. There's a lot of talk about the need to protect "innovation," but that's terribly abstract. The red-baiting is, of course, the red herring in this debate. Perhaps Ben can help us get past it to the real conversation about preserving what each "side" values about the Internet and our society.
David Weinberger @ Joho: DRUMS - Digital ID for Stuff: "Scott Matthews has an idea-in-progress called DRUMS. It's a database of creative works and relevant metadata including, crucially, rights and permissions. It'd be maintained by a trusted authority, if we can ever find one of those again. Scott thinks this might provide the infrastructure required to develop a middle path between the copyright totalitarians and the free culture hippies. (Disclosure: I am a free culture hippy.)"
Patrick Ross @ PFF: More on Middle Ground: "Some have criticized me -- fairly -- for not putting forward a constructive middle ground approach in my CNET piece. I'm working on one now that I hope to have published soon, but I wanted to put Scott's out there now. I'm not completely sold on Scott's proposal, but he wants it to be a starting point for constructive dialogue, and I'm all for that."
Siva Vaidhyanathan @ Sivacracy: Every Once in a While: "...someone immersed in the copyright debate takes a chance and proposes a new way of doing things that might loosen the deadlock between the Free Culture Movement and the content industries...I am sorry that Scott chose the ad-hominem-addicted hacks at the Progress and Freedom Foundation to release this plan. But they asked for it by falsely portraying themselves as seeking the 'middle ground.'"
You know you've been obsessing over copyright law for far too long when you see the copyrighted light-bedecked Eiffel Tower as a metaphor for the DMCA, which makes proprietary everything wrapped up in copy control mechanisms -- regardless of whether the underlying material is a vital part of our shared culture.
Speaking of the DMCA, Michael Madison continues his winning streak of intriguing posts with one that proposes new rhetorical/legal strategies for DMCA critics -- including asking whether the "legal to own; therefore legal to sell" principle expressed in the Extreme Associates case could help us in the copyright context. In other words, if the DMCA is killing first sale, could Lawrence/Extreme Associates help revive it?
Seth Schoen has a nice exercise in reductio ad absurdum, pointing out that the only argument the Business Software Alliance (BSA) makes in its recent legislative agenda to refute the notion that copying is beneficial to society is that restricting copying will make the software industry larger and more profitable. Says Seth, "The idea that helping a business sector get larger and richer is a primary duty of legislators or of the public is so peculiar that it bears trying to come up with a few parallel arguments."
For example, BSA asserts:
Some have attempted to paint copyright piracy as a victimless crime, arguing that "if I make a copy of a computer program, you still get to keep your copy, and we are both better off." This is hardly the case.
Reducing piracy offers direct benefits. The equation is a basic one: the lower the piracy rate, the larger the IT sector and the greater the benefits.
...so Seth suggests we might also argue:
Some have attempted to paint conjugal sexual intimacy as a victimless crime, arguing that "if you and I have intimate relations, we both derive pleasure and a sense of togetherness, and we are both better off." This is hardly the case.
Reducing sex among committed partners offers direct benefits. The equation is a basic one: the lower the intimacy rate among committed partners, the larger the prostitution sector, and the greater the benefits.
BSA's logic is not unlike that of the National Association of Broadcasters (NAB). As Fred von Lohmann points out in Kill P2P to Save TV?, its brief in MGM v. Grokster suggests that the northern star for copyright law ought to be whether or not it keeps a single group of businesses -- broadcasters -- big and rich. Or more specifically, that one particular business model (adverts) for one particular industry be protected.
Of course, BSA and NAB are doing no more than using the best arguments they have to further their own self interest. But it's important to recognize the arguments for what they are: myopic. You can argue all you want that because intellectual property protection is good, any form that props up your particular business model is also good -- but that doesn't make it so.
Boynton goes well beyond typical book review territory, offering a compelling synthesis of perspectives as well as an analysis of the current state of play in the copyfight:
The cultural prong of digital environmentalism has had somewhat more success. Represented by writers like Bollier, Vaidhyanathan ..., Kembrew McLeod ..., and others, they all advocate the path of activism and resistance. Working within existing law, they propose that artists and authors aggressively exercise their intellectual property rights in the face of threats and legal challenges from overbearing copyright holders. Bollier, for one, perceives the work of digital environmentalists as benefiting from the momentum generated by legal challenges like Lessig's. "Acts of civil disobedience against the antisocial, personally intrusive claims of copyright law have only grown since the Eldred ruling, in part because of it," he writes.
A terrific, involving read, regardless of whether you've read or plan to read the books. Bravo.
For Maney, the flavor -- or as he calls it, the "wow" -- is gone. It used to be that we saw stuff that made "even hard-boiled techno-weenies" get excited. Napster. The Blackberry. But no more. How come? According to Maney, the "real wows" require two things that aren't in evidence at the moment:
First, someone has to invent a radical enabling technology -- hardware or software that's not much good on its own but can be used to build something that's never been built before. The microprocessor and MP3 compression for music were both enabling technologies.
Then, someone has to take that enabling technology and invent a life-altering way to use it. MP3 made it possible for Shawn Fanning to launch Napster from his dorm room. Apple Computer and others latched onto the microprocessor and created the PC.
Ah: a "radical enabling technology." Life-altering" uses and extensions thereof. Just the sorts of things a hypothetical "someone" might create and bring to a show like CES. Provided, of course, that the someone gets permission from Hollywood and/or the major consumer electronics companies first.
As Cory recently pointed out, often the most revealing question to ask about a new gizmo isn't "What does it do?" but, rather, "What won't it let me do?" After all, if it's "life-altering," it's a threat to the status quo -- and those who profit from it.
Julie Jacobson of CEPro Magazine has written a scathing editorial on the kind of coercion going on behind the scenes for DVD CCA dues-paying companies like Kaleidescape -- even before they attempt to slip the bonds to achieve "wow":
The DVD Copyright Control Association (DVD CCA) is a bully.
Not just because this legalized cartel sued Kaleidescape, but because the organization manages to coerce all manufacturers of DVD players to sign away their rights to innovation.
The DVD CCA was created in 1999 to be the sole licensor of the Content Scramble System (CSS), an encoding scheme used by DVD makers to thwart the playback of DVDs by anything other than a "legitimate" DVD player.
A "legitimate" player is one whose manufacturer pays a $15,000 annual fee to the DVD CCA (the CSS license is "royalty free," says the DVD CCA; the annual fee is "to offset the costs associated with DVD CCA's administration of CSS....") and agrees to whatever capricious specifications the DVD CCA dictates. [...]
So, then, who collects the tens of millions of dollars in "administration fees" that flood into the organization every year?
The money goes -- surprise, surprise -- to the for-profit organization that manages the DVD CCA, License Management International, LLC (LMI). The Morgan Hill, Calif., company was founded by John Hoy in 2000 -- the year after Hoy founded the DVD CCA. Go figure.
LMI, it turns out, also manages the three other significant "copyright-protection" bodies, including 4C Entity, which is expected to license the forthcoming CSS 2.0 -- potentially paving the way to double-charge CSS licensees -- once through the DVD CCA and once through 4C, with the proceeds going to LMI.
I don't know enough to suggest that the DVD CCA is wrong in the Kaleidescape case. But I do know enough to infer that something about the DVD CCA stinks. An organization that wields that much power should have to, at the very least, put a contact name and phone number on its Web site, post its bylaws, disclose its board of directors, name its management company.
Edward Felten gazes into the crystal ball, providing 12 predictions for IT-related developments in 2005. They include the prediction that in deciding the Grokster case, the Supreme Court will fail to replace the Betamax rule with something sufficiently clear for evaluating the legality of future technological innovations -- putting the ball back in Congress's court.
Yesterday I plumbed Ernest Miller's excellent interview with former Napster CEO Hank Barry for a few thoughts on the Grey Album, but it's chock full of must-read material -- including a nice discussion about why too much copyright is as bad for the economy as too little:
EM: You've been a significant and outspoken critic of recent proposed copyright legislation such as the Induce Act. Does copyright law need to be changed? If so, what should those changes be?
HB: It is clear that some level of IP protection is a huge positive for a society -- it stimulates enterprise and innovation -- gives the small guy a way to compete. But Alan Greenspan recently asked "If our objective is to maximize economic growth, are we striking the right balance in our protection of intellectual property rights?" The answer is no. My own view is that the best way to stimulate economic growth right now is reform our copyright and patent laws to decrease the level and scope of protection to promote competition, reduce litigation and increase innovation. An FTC report suggests the same.
Excessive IP rights are like a tax, and we all need a tax cut! As Judge Posner has said: "you might think that if a little copyright is good, then a lot is better. But the matter is not so simple." Too much IP is just as bad as too little. We have come to the somewhat paradoxical point where we need to decrease protection to increase output.
Reshape the network so that ISPs or other traffic routers could have certain controls that would discriminate between types of traffic. Monitor all the traffic and restrict anonymous communications so that we can track the source of distributed content.
That's the Swiftian solution proposed by Derek Slater in a post echoing and amplifying the point Fred von Lohmann is making repeatedly to the press folk covering MGM v. Grokster: This case isn't about the future of peer-to-peer technology. It's about all the other technologies that will be impacted by the effort to control it:
Making "P2P networks...illegal" involves more than flipping a switch and banning P2P networks narrowly. As Ed Feltenexplains, crafting a definition that includes P2P and leaves out most other Internet technologies is basically impossible.
A result against Grokster would thus affect myriad other technologies. But would it affect P2P? Not really. As the Darknet authors conclude, "the darknet-genie will not be put back in the bottle." [...]
Which is not to say that there would be no way to eliminate P2P. Let's not rehash the old "can we regulate the Internet" argument - sure we can.
No matter how the Supreme Court rules, P2P file-sharing software will continue to be available from distributors around the world, many of whom are beyond the reach of US laws. But the Court's ruling will shape the future of companies like Apple and products like the iPod and TiVo -- that is, any company that makes/wants to make/would have made a technology that enables infringement.
Mark Frauenfelder of BoingBoing passes on the sad and perverse story of a teenager who was given an "F" for writing a paper attempting to distinguish between piracy and stealing:
Geluso, an "A" student, recently completed an in-class exit exam for his Language Arts class. The goal of the exit exam was to write a comparative essay on a topic of the student's choice. Being a student who enjoys a challenge, he wrote an essay contrasting piracy with stealing.
His teacher failed him, saying there was no difference between the two and that he was "splitting hairs." Other teachers who read his essay said that he did well from an organizational and technical standpoint, but because his teacher felt that there was no difference between piracy and stealing, she gave him an "F" because she disapproved of the content of his essay.
So in other words, this teacher is:
1.) an MPAA/RIAA lobbyist deep undercover on a Kindergarten Cop-style reconnaissance mission;
2.) suffered head trauma, lost a few brain cells, then read and swallowed whole What's the Diff?; or simply
3.) profoundly anti-education.
Safe bet she didn't encourage this young fellow to think about a future career as an intellectual property attorney -- those guys "split hairs" like this for a living.
EM: You've written, basically, that copyright law is communications policy by other means. Can your last two answers be combined into a single coherent whole?
TW: Yes: Copyright law should limit itself to promoting authorship, and communications law should forget about content regulation. That may, again, not sound very radical, but the fact is that today the two areas of law moonlight for each other in fairly shameful ways. Copyright is used to do things that would be embarrassing to propose in communications policy circles. Meanwhile, the FCC is effectively implementing copyright laws that couldn't get through Congress.
AT SWARTHMORE COLLEGE, the crowd is mostly students, and maybe a few professors and interested outsiders. It's a typical turnout for a public lecture by a well-known law professor. But there is something different and a little odd about this group. Swarthmore doesn't have a law school, so the audience includes no young men in suits that still have the label attached, and no young women with high-heeled shoes so new the soles aren't scuffed. And there is something else, something funny about the T-shirts. Everywhere you look, there are T-shirts with slogans, not logos. No "Tommy Hilfiger" and "Ralph Lauren" here. Just shirts with references too obscure to parse. What is "Downhill Battle"? Or "Grey Tuesday"? One kid has a shirt with the picture of a skull and crossbones on it, and written boldly across it are the words "Home Taping is Killing the Music Industry." Look closer, and you'll see, in tiny type, "(And it's fun)."
Fellow ILAW alums will know what I mean when I say I feel this scene isn't complete without Yochai.
The Honorable Richard A. Posner may have the best definition yet: "It is a fresh and striking exemplification of Friedrich Hayek's thesis that knowledge is widely distributed among people and that the challenge to society is to create mechanisms for pooling that knowledge."
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?
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.
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.
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.
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."
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."
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.
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."
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.
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.
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.
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.
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."
"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?
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]
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]."
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.
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.
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.
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.
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 ...
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.
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).
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.
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."
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?
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.
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).
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)
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.
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."
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]
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.
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.
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.
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
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.
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.
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 manyofus 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.
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.