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.
Felix Salmon's column for Sept 3 is about "price discrimination". That's the thing most people hate where the guy sitting next to you on the plane paid a lot less for his ticket. As Salmon says, "If you know that your friends and neighbors are getting exactly the same product that you are, but are paying a different price for it, then someone is going to feel ripped off." Where this gets interesting is in how he applies the price discrimination discussion to paywalls - they are a form of price discrimination and we're going to see a lot more of it as more content business moves online.
In this case, congratulations go to Ms. Karyn Temple-Claggett, who has left her illustrious work as destroyer of "pretty much any innovative technology that comes along" (to quote Techdirt) including LimeWire and XM radio and become the number 2 official at the US Copyright Office. Guess we won't have to worry about things like being allowed to jailbreak our smartphones after all.
I know a few smaller-scoped writers who have quit CNET or decided not to go there since this bomb first dropped, but Sandoval has major juice. He's been a well-respect, often-printed, and very public byline at CNET for years, often writing about intellectual property issues. Ironically, his resignation came over an IP-related story.
In case you missed it, there was a big Consumer Electronics show recently. As they do, lots of news outlets went there, reported a ton, and sifted among the offerings to come up with their top N things. It's a traditional way to write a show-wrapup story. Most people don't pay attention to such things. You could throw a virtual dart at Google News or any other aggregator on show closing day and hit one "Top N of $show" headline at least.
But someone at CNET's parent company, CBS, didn't like what they saw in CNET's list. CNET had already reviewed the Dish Hopper DVR in pretty positive terms - a device that allows users to skip commercials while watching DVR-captured content on a variety of home computing devices. CNET was reportedly going to make Hopper+Sling it's Best in Show until the bosses upstairs said "THOU SHALT NOT!"
To compound this idiocy, it appears that CBS actually stuck its political nose into the CNET newsroom and forbade CNET from any further reviews of Dish products, let alone giving them awards. So much for journalistic honesty and independence. And really you can now kiss any chance you had of CNET's review sinking into obscurity. It's been linked to a thousand times more since CBS's move than before, I'm sure.
The effect on CNET's staff has to be utterly demoralizing. Say what you like about some journalists, but I think you'll find the vast majority are honest folk trying to do good work and they are among the strongest believers in independent voices and at least the honest attempt at unbiased reporting. I can't imagine why any journalist who's looking for work right now would be looking at CNET, though I can understand why those who have to take home a regular paycheck to keep food on the table might stay there. I imagine Sandoval has bills to pay, too, and I hope he finds a better place from which to do that.
Last week I noted that so-called deep journalism isn't something that we know how to do well in the 21st century. Investigative reporting - the most common type of deep journalism - requires investments of time (months or years) and resources that are hard to sustain without a regular paycheck. Deep journalism also produces results that aren't easily amenable to summary, nor to the quick-hit forms favored by many social media such as news aggregators, Twitter, etc.
For example, Sullivan is intending to construct his site so that links to it don't ever hit the paywall. Bloggers and aggregators can feel confident pointing their readers over, which is an important step. This makes the paywall portion of their site extremely easy to circumvent - and that's by design. By analogy both NPR and the Times are listed as news entities who take no extraordinary effort to prevent people getting their content for free but instead depend on a combination of big contributors (or advertisers) and people being willing to pay for value.
Gillmor identifies what I see as the biggest problem with this philosophy - no matter how honest or willing any person is, they only have so much cash available. I can easily identify a dozen people whose content I find worthwhile to read pretty much whenever they produce it. However, if I had to pay $20 per year per writer I'd quickly find myself unable to continue. My guess is that this model will work OK for a few people but isn't going to scale.
Part of Posner's theoretical framework is a critique, often based on economics, of patent and copyright protection. This is the substance of his September 30th column - a cost-benefit test for patent protection. Sadly he picks pharmaceuticals as his poster child, which shows off the bat just how bare a simple means test is for judging patent suitability, As I've argued in the past, the drugs marketplace involves special considerations that weigh against a needs-blind market analysis.
Posner's main point is that the software industry is presently overprotected by patents because software is cheap to make. This seems a little odd on the face of it - presumably if I run a large software development project that goes for many years and has huge cost overruns (i.e. any government software procurement) then that is more worthy of patent protection than a mobile app that's written over the course of a few months by a talented three-person team. This is the sort of argument economists make which tend to leave the rest of us scratching our heads in puzzlement. I understand that it accords with a theory that says "things that are more expensive to make need more protection" but when the theory leads to (dare I use this word) patently absurd results isn't it time to re-examine the theory?
Posner also that software patenting suffers from "a shortage of patent examiners with the requisite technical skills" - true, but also probably true for many other fields of cutting-edge technical innovation. Are there really more and better-skilled microbiology examiners? Or carbon-fiber materials processing examiners? I have no data, but tend to doubt it. There are indeed problems with software patenting, as I've written about before but these ain't it.
His discussion of copyright protection seems better. He notes that fair use is getting short shrift (but see my upcoming piece) and that copyright terms are too long. Most of all, he notes that copyright violation action requires showing of some willful infringement whereas you can infringe a patent you've never heard of, simply by going about your normal business. That alone is a significant impediment to software business and could stand some public discussion. Creation of only token penalties for accidental infringement is right up there with mandatory licensing on my "how to improve patenting" wish-list.
Sadly, Posner doesn't take any specific stand on the reforms he thinks are needed, just calling for Congress and the courts to devote "serious attention" to the problem. Right after they get done devoting "serious attention" to the budget deficit, one presumes. And prays.
Raustiala and Sprigman are co-authors of a new book, The Knockoff Economy: How Imitation Sparks Innovation. Here's the teaser blurb:
Conventional wisdom holds that copying kills creativity, and that laws that protect against copies are essential to innovation–and economic success. But are copyrights and patents always necessary? In The Knockoff Economy, Kal Raustiala and Christopher Sprigman provocatively argue that creativity can not only survive in the face of copying, but can thrive.
Needless to say that's right up our alley. I'm not sure how much of this I'll be able to report on, so get it from the source if you can.
As Jones tells it, theft is rife among magicians. They copy each others' tricks and sometimes outright 'steal' a performance piece. In this case a magician performing as Gerard Bakardy appeared to have stolen - in the sense of copied and performed in an altered form - one of Teller's signature tricks. The signature trick was the subject of a 1983 copyright registration that Teller made, in an effort to protect not the trick itself, but the performance art wrapped around the trick. Teller willingly reveals that he has used at least three different methods to do the trick in dispute - but the method is not what the audience cares about. The audience cares about a performance, and Teller is asserting that his performance (of the trick) is a unique artistic creation, as worthy of legal protection as any other act of artistry.
According to Jones, Teller has in the past relied on professional courtesy when confronted with other magicians who have lifted his tricks, rather than legal protections. In this case, however, Bakardy was not just performing the trick, but offering to sell its secrets to anyone who would meet his price. Also, Bakardy was unwilling to extend professional courtesy. When Teller contacted him, the story goes that Bakardy asked for more money and favors than Teller was willing to pay.
Intellectual property protection for something like the performance of a trick is a difficult thing - to begin with most performers don't have the money to pursue a court case against someone who has lifted the trick and even if they do the case itself will be public which may end up revealing secrets the magician would rather didn't get into wide circulation. As a result legal protections such as Teller's copyright may not be worth the paper they're printed on. Nevertheless, Teller sued... and Bakardy vanished. No one has even been able to serve him with proper notice of the lawsuit, though Teller got permission to serve notice by email (which has gone unanswered).
Whether Teller's copyright protection will stand up in court is a mystery yet to be revealed.
David Byrne has been a force in music and on musicians since Talking Heads first broke into the national spotlight decades ago. His collaborations with Eno are often cited as some of the most influential of their time, and he's still rocking out, appearing recently on-stage with Amanda Palmer.
Ferguson, best known for his series "Everything is a Remix" and his work on copyright policy in the US, puts the basic idea in front of the TED audience. Unfortunately, although his examples are interesting, the talk is a bit disjointed as he jumps from the notion that creativity is external, not internal, to the ongoing smartphone patent wars, with a very fleeting touch on the notion that the current intellectual "property" regime is hampering creativity. I suppose that's the challenge of trying to cover something this complex in under 10 minutes.
They delicately refer to her as Ms Palmer (I'm trying to imagine The Economist printing 'amanda fucking palmer' as she signs herself) and warn their readers about her "exuberant nudity" and "salty" language in her updates. But for all the properness, the blog notes that this was not off-the-cuff; it was three years in the planning and followed three self-releases and a smaller Kickstarter last year, as well as a detailed post-mortem with the Kickstarter team.
I noted yesterday that it's unlikely someone else would succeed by trying to imitate Palmer - you can't authentically be another person or use another's style. It's easy to look from the outside at Palmer's disjointed writing and the frenetic enthusiasm that are part of her signature style and mistake that for a lack of good sense. But when it comes down to business fundamentals: plan, experiment, analyze, adjust, then launch - that's a formula anyone can follow.
Sisario talks about Palmer's "theatrical gestures", which I think is slightly missing the point, and her intense and uniquely personal broadband engagement with her fans, which I think is much more relevant. AFP, in her Kickstarter updates, has noted that other musicians who want to do this sort of thing will have to find their own way. Trying to "be" or "be like" Amanda Palmer isn't likely to work, simply because she has a certain personality and a certain style that most people don't have. Trying to fake it won't buy you anything because you're not (supposed to be) about faking it or passing as something else.
Sisario talks about Palmer's "experienced managers and publicists" as if that was somehow a mark against her authenticity. But Palmer's own Kickstarter Q&A pointed out that someone who wants a successful project of this sort needs to have it planned out. Knowing ahead of time what updates you want to do, what bonuses you can add, how to get the campaign noticed, etc are all vital to success.
My view is still that there's a business opportunity here, helping artists who aren't as Net-/social-media savvy as Palmer put together a successful sponsorship campaign, and possibly let the artist have a life, make art (or music), and get the money they need. How to do that without losing the personal, deep-connected authenticity that motivates a group like Palmer's fans is a question yet to be answered.
"It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a photograph, or a telephone or any other important thing--and the last man gets the credit and we forget the others. He added his little mite--that is all he did. These object lessons should teach us that ninety-nine parts of all things that proceed from the intellect are plagiarisms, pure and simple; and the lesson ought to make us modest. But nothing can do that."
This post is much more Q&A than the first, but the answers still come in Palmer's unique voice, which makes it fun to read. I'll cherry-pick a few highlights, but recommend it highly to anyone who cares about these models.
She notes, for example, that this kind of thing doesn't work for acts that are too unknown, too obscure, or aren't working hard enough. She points out that other acts she's worked with through Kickstarter projects have also carefully nurtured their fan bases with things like house concerts, free shows, and generally nurturing that fan base over (as Palmer writes it) "YEARS AND YEARS AND YEARS of connecting" so you can go and ask them for money. Palmer also references the '10,000 hours theory' that anyone who spends ten thousand hours doing something becomes an expert at it, and she notes that by this yardstick she's an expert at connecting with her fans.
She addresses file-sharing, head-on: " i think music should be shared. all the time. by everybody. i think it's pure insanity to make music filesharing illegal." It's no accident that you can get the entire album as a high-quality digital download, with bonus content, for a buck (at least for six more days as I write this). The time it would take you to find it on a torrent of questionable quality is worth more than that. Personally I think a buck is too low, but it certainly upends the economics of illegal copying.
She also talks about being fearless. Artists who perform in front of crowds know this but it may be different for creative types who aren't used to connecting so intimately with their fans. Perhaps a direct-sponsorship model like this really will work best for people who are used to it; certainly musicians have been busking on street corners with their hats out for coins for centuries. Actors and other stage performers used to pass the hat as well. Kickstarter, as Palmer points out, isn't a charity. It's a direct appeal for sponsorship funding.
Palmer also makes the point that she is making great art. It's not cheap and it's something she truly believes in. As I noted last time, I want this kind of model to be sustainable as a business, not a one-off thing. That means the fan base you so carefully cultivate also has to be delighted with what you've made. Doing it on the cheap might mean you hit your Kickstarter goal but will it mean those who fronted the money are happy with what they get at the end?
I think this is something we see in other big successful drives; for example, the Order of the Stick reprint Kickstarter (which I also backed). The comic's author, Rich Burlew, has gone above and beyond in the quality of the materials that drive has produced. Everyone I've shown them to has had the same "oh, wow!" response. Principle: delight your sponsors.
This is different, as Palmer points out, from a product-oriented Kickstarter like the fantastically successful Pebble watch. There, the entire point is production of a product that people expect will be delightful. Fans != consumers. Principle: know what you're making, for whom, and how to delight them.
Finally, I wanted to quote a bit of Palmer-wisdom that I think illustrates why this kind of innovation had to come from creative types, and not from the established businesses (the Copyright Cartel):
the music business for years has seen the fanbase as a bunch of faceless consumers who were going to have to be TRICKED into parting with their cash. whereas i see them as people who love art and want to help. attitude is everything.
Capitalization, such as it is, preserved from the original.
It's short on detail and long on concept, but it's still worth reading as it rattles off the very long list of people and things and responsibilities involved in making a major multi-faceted project come together. As I wrote back in April when I signed up for the Kickstarter, this particular vision of music's future isn't just about a band, an album, a tour. It's about bringing together dozens of creative people each contributing to a multi-faceted, multi-experience endeavor. And that kind of thing doesn't come cheap, even when many (most?) of the people involved are your friends and colleagues who share your vision and dedication.
Everyone needs to eat and artists need to get paid. If I have any criticism of AFP's approach here it's that she's very dedicated to pointing out that even if the Kickstarter clears a million bucks she's not going to get rich off it. That is important, especially when you're asking people up-front to give money and trust they're going to get something worthwhile down the road. As Palmer says, "...paying now for value later is what historically would’ve been a label’s primary purpose."
Since we (the Kickstarter backers) are taking that role, it's important we feel we're getting value for our invested dollars. Fine and good. But I'm very interested in this as a sustainable business model. If Palmer is right and the project looks only to break even then that's not good enough. The Kickstarter becomes an event, not a repeatable model. In my opinion, Palmer and the people who work on this (her band, her artists, etc.) should be making money this way, because art needs to be sustained, not just one-off events, and right now we don't have a better way to sustain art than to compensate directly the creative people involved.
Everything about this project screams 'forward-thinking': it's crowd-funded (via Kickstarter). There is an option for patronage beyond what Kickstarter allows. The project involves multiple artists, all retaining control of their work. The product is multi-faceted (album AND book AND art tour AND maybe more). The experience is multi-layered - even tickets to the shows are exclusively on Kickstarter. The promotion is direct and from the heart - Ms. Palmer is not ashamed to say "fucking" nor is she ashamed to express her love for her fans.
This is the sort of thing you can't buy with astro-turfing. This is the sort of thing that will blaze trails for this century's creative artists. I confess I am not a huge fan of Ms. Palmer's music and her stage acts. But I admire the hell out of what she's doing.
First, a bit of background. Gillmor has been working in various aspects of journalism for 25+ years. I first started reading him in the late 90s when he was working at the Merc and its online site siliconvalley.com. He's been a businessman, teacher, and investor in the digital media space for approximately as long as that space has existed within the US media landscape. Gillmor has never been passive - he was one of the first "establishment" media figures to realize that personal passion counted for something extra in the digital media space and he does projects he believes in.
Right now, what he believes is that we (the media-consuming public) need to make better choices. More informed choices. More active choices. In an effort to spur that he is both walking the walk, and creating the Permission Taken project, a project dedicated to "help[ing] you make your own decisions" on technology, privacy, and rights.
The project currently exists as a public Google doc - anyone can read it and comment either anonymously or if they have a Google account they can log in and be named. It reads a lot like an early-stage book proposal and it's clear there's a ton of work to do. Of course there will be at least one accompanying Web site, but there's also the possibility that Gillmor will take this crowdsourcing thing seriously and farm out pieces of this to others who would build micro-sites or related sites to extend beyond what can be contained in any one book/site.
The topic itself is centrally important to Copyfighters. Gillmor is quite up-front about the fact that using Google and gdocs represents a compromise. He describes how he's unplugged himself from the "church of Apple" in order to get some more freedom and control, but that no ideal solution exists. Each choice is some sort of trade-off and the project's purpose is not to steer a purist agenda but rather to make conscious trade-offs and guide other less-technical folk in making similar decisions.
It's a hard row to hoe. I've been vocal on Google+ (feel free to read my own stream and circle me there if you wish) about how I would like Google to stop racing Facebook to the bottom of the privacy-invading cesspit. Like Gillmor I think Google-flavor evil is less bad than Apple-flavor evil or Facebook-flavor evil but neither of us is blind to the fact that all these companies act in evil ways sometimes. Mottos notwithstanding, all of them are public companies with legal obligations to make as much money as possible and that's what they do.
In that spirit then, I'd encourage my readers here to join in the discussion Gillmor is opening, to follow the project as it unfolds, and let's see what comes of it.
In a long thought piece published today, Anderson goes point-by-point through Sherman's latest post-SOPA salvo. Sherman published an item on the RIAA's blog in which he reviewed the (massively negative) feedback he got in response to his NYTimes op-ed. The original op-ed was addressed to SOPA's critics and used some pretty harsh language while supposedly asking for serious dialogue.
Anderson's response to Sherman's blog post is nothing less than heroic. He points out that he is himself a creator, dependent on publishers, copyrights, and all the associated mechanisms to make a living (shades of Wales and Walsh) and then brilliantly deconstructs pretty much everything Sherman has to say.
Anderson also doesn't mince words, calling Sherman's piece "absurd" at points and "quibbling" at others. Crucially, and this is where I think he hits his best home run, Anderson notes that Sherman still is not engaging with the substance of the anti-SOPA/PIPA/ACTA objections. The full-on "no, stop, wrong and here's why" that people all across the spectrum put out in the run-up to the blackout and withdrawal of SOPA seem not to have penetrated Sherman's reality, leading Anderson to conclude that Sherman's claims of defenselessness are "poppycock".
I found Anderson's final section "The path ahead" particularly interesting as an exposition of how Anderson sees the next rounds of the Copyright Wars. As I've noted recently, it feels like we've broken out of a grinding trench-warfare status into something new and potentially much more fluid. Anderson thinks that the Cartel will continue to fail to understand its customers and their anger and so will try to move behind the scenes into lobbying and biting off smaller chunks of the legislative and regulatory pie, hoping for less negative publicity and greater success.
Who was it said that the price of liberty is eternal vigilance?
After the victory rush of defeating SOPA/PIPA it has felt like attacks were renewed on all fronts. There's the C-11 mess in Canada, and another bad bill proposed in the US Congress. And of course, the beast that is ACTA still lumbers along. Trying to put it all together is daunting, at least for me. If you find yourself similarly confused and overwhelmed, let me recommend you kick back for an hour with Michael Geist's latest keynote talk.
Professor Geist has always been one of the go-to guys for clear analysis of major legislative battles in the Copyright Wars, and a keynote talk has a format that lends itself to engaging summarization. This address, which he just posted a couple days ago, was given at University of South Florida in St. Petersburg. It's just under an hour and I think will help us all think more clearly about the current state of the immediate post-SOPA world.
Jonathan Coulton, for those who have been living under a rock, is something of a nerd-rock superstar. Formerly a programmer he has recently made his way as a full-time creative artist with his own works as well as teaming up with pop-culture icons that include Neil Gaiman and John Hodgman. Gamers probably know him best as for the wildly popular "Still Alive" track from Portal and he has been quite happy to give away his songs for free as well as via traditional recordings. And like any other artist working today he has a view on illegal copying.
He notes that people, particularly on the anti-copying side, throw around big numbers with little or no evidence to back them up - numbers based on over-simplistic math and bad premises. And he concludes by saying:
I believe in copyright. I benefit from it. I don’t want it to go away. I love that we have laws and people to enforce them. But if I had to give up one thing, if I had to choose between copyright and the wild west, semi-lawless, innovation-fest that is the internet? I’ll take the internet every time.
It's interesting to me to see him come down on this side of the debate because I found Coulton, and became a fan, due to an illegal work. Even though I'm a gamer I never played Portal, but I play World of Warcraft and apparently so do a lot of other Jonathan Coulton fans.
It's been too long since I propped the work that Cory Doctorow has been doing at tracking some of the most egregious excesses of the Copyright Wars.
First up, you might want to check into the philosophical backgrounds for which I recommend his series of columns for Locus Online's "Perspectives" series. Locus is the go-to 'zine for SF/F writers and serious literary fans. Cory's been writing good thoughtful philosophy pieces there this year, of which I have two clear favorites: "Why Should Anyone Care?" questioning why anyone (who reads or writes SF/F particularly) care about copyright anymore; and "It's Time To Stop Talking About Copyright". Here he is talking about not just the utter failure of copyright law over the past decade and a half but the really crucial issue of how what starts as copyright policy inevitably becomes Internet policy and that just makes everything worse.
With that as background you should check out a recent series of Cory posts over at Boingboing where he's been dogging what I think is probably the most frustrating and sorely under-reported story of the 2011 Copyright Wars: the ways in which the Cartel have continued to abuse the system, particularly the DMCA's takedown provisions. I wrote some months ago about the crucial importance of the DMCA's Safe Harbor provisions but the Cartel is exploiting its way around those provisions by abusing the poorly implemented notice-and-takedown procedures of sites like YouTube.
Oh, and there's a good chance the US Government (Senate) may get its fingers into this pie: according to Boingboing and Ars Technica, Senator Ron Wyden has promised to get up the nose of the Immigration and Customs Enforcement division of the DHS over domains that were seized based on (shaky) claims of copyright infringement.
As before, she's building on her own personal model - she's a fan of the game and the stories of the world in which the Dragon Age games are set. The new series was done with EA's backing and the short teaser that's up so far looks like it has good production values.
I've not yet seen any discussion of how the business arrangements for this are laid out. Obviously Bioware's logo and properties are featured heavily, and I imagine Day and the other actors probably got paid at least union rates. But it would be interesting to know whether the series is intended to make money, what effect it has on sales of Dragon Age games and DLCs, and whether profit-sharing is part of the plan.
Fred von Lohmann pointed to this announcement of the new, improved SCOTUSblog. The blog has always been a go-to site for professionals and amateurs like myself who are trying to puzzle out what the various Supreme Court pronouncements and goings-on actually mean.
The blog now is big enough to support four full-time employees, with the backing of Bloomberg Law. Bloomberg remains a paid commercial service, but here they are doing a really awesome thing in sponsoring a fully free open and accessible source of high-quality analysis and content. In addition, SCOTUSblog is promising to offer more non-text content such as audio and video. My guess is that without someone to foot the bill they couldn't afford the extra bandwidth costs that these kind of content incur.
As sole sponsor Bloomberg Law gets props both in the site banner and in advertising space in the right-hand column. It will be interesting to see how they use these spaces and what influences and effects they have on the site in the future. As always I remain interested in sponsorship (patronage) business models and how they play out for creative folk everywhere.
In particular, looking at these two men it's clear both that they were greatly influential and that they were deeply embedded in rich systems of shared creation. Their life stories give lie to the myth that people create in a kind of mystic isolation where there is An Idea, pure and platonically ideal, which leads to the error of trying to (over)protect those creations. Like many great creative teams who came before, the fine works that bear these mens' names are made possible because their ideas are not hoarded, but are shared and worked and reworked, being refined and made better in the process.
According to Taylor's blog entry, the Mail does this with some regularity except this time they may just have picked the wrong person to steal from. Taylor is not only a CEO of a gaming company, a gamer in her own right, and a savvy blogger. Plus, she happens to be married to Cory Doctorow of Boingboing, which has more than a little experience dealing with the difference between fair use and outright theft.
I've said it before and I'll say it again: creators should be paid. If the Mail didn't like Taylor's terms for the photographs they could have sent their own photographer out there and paid for their own picture to be made. Not that I think the Mail cares if they get a bad (worse) name in the blogosphere, but I do hope Taylor follows the advice in her comments stream and sends them an invoice, including costs for her time in dealing with this.
SIGGRAPH (the ACM special interest group on graphics) invited Cory to give a Keynote address at their annual convention. This shindig is attended by some of the biggest names on the tech-creative side of Hollywood, in advertising businesses around the world, and hosts some of the neatest research you're likely to watch. Their video show is often a place where the most cutting edge techniques in animation, computer-aided cinematography, and related computer visual techniques such as motion capture are first shown in public.
Cory's address is of course fun to watch - he's very "on". He's also trying to get some of these great creative minds involved in the Copyright Wars in more than a rote fashion. More power to him for that.
Commenter Gareth Simpson pointed me to Mark Cuban's next blog entry on the topic of patents. To say that it's cringe-worthy is a polite understatement. I suppose people worth two billion dollars are equally as entitled as you and I to spew uninformed commentary over the Internet, but geebus.
Cuban's prescriptions for patent reform include abolishing software patents. This is a topic that has been debated at least since the first software patent was granted. I am myself a software patent holder, but I have mixed feelings on the topic. Patents are presently the best form of intellectual property protection available. Contrary to Cuban's one-sentence dismissal the protection offered by copyright is quite weak. I still believe we need a new form of IP protection for software; however, I have to agree that the advances in information science fundamentally challenge the notion that software (information) is different from hardware. Generally, patenting hardware is uncontroversial but then people opposed to software patents must also answer the question of why a program expressed as a custom chip is afforded a different protection than a program expressed as a block of C++ code.
Regardless of which side of the debate you find yourself on (or flip-flop across as I tend to do) Cuban's curt dismissal of the complexity of the issues comes across as ignorant.
Then again, he also wants to abolish "all process patents." I'm going to take a wild guess (since he doesn't bother to state) that what he means are business process patents. Unless he's also opposed to all biological, chemical, and mechanical transformative processes being patented, in which case I find myself wondering what the hell he thinks could be patented. So let's credit him a little bit.
Abolishing business process patents is a less-well-studied suggestion, but not terribly original. The problem I see is that a business process isn't necessarily that different from a software process - certainly every maker of workflow software would like you to think they can encode your business processes in their software (see for example the open-source ProcessMaker if you aren't familiar with this stuff). If we think business processes can be encoded in software then they can also be encoded in machines and now we're back in the weird world of saying "well, yes, you can patent a machine that carries out steps A B and C but if you have human beings doing it then you can't patent it."
Again, I think reasonable people can debate this issue and come out on either side, but you can't just hand-wave them away.
I would love to do a similar dissection of Cuban's opinions of the "benefits" of eliminating these forms of patenting, but I have more interesting things to spend my time on, like Dungeon Crawl Stone Soup.
I'm sympathetic to people decrying the current craptastic state of patenting in the US. But Cuban's random shot at "patent trolls" comes off as easy and facile. He notes that Google spent USD 900 million for Nortel's patents and seems to share Vlad Savov's sentiment there in engadget that the major reason for Google spending this money was to defend itself against these unnamed trolls.
With all that out there one wonders what, exactly, has Cuban's ire up? Unfortunately his blog entry doesn't even begin to sketch an answer or suggest any way to solve the problem, let alone demonstrate some linkage between some nebulous patent reform and job creation. If someone made an elevator pitch with this scanty a level of logic and detail to Cuban I bet you that he'd get pitched out on his ear.
Ewalt's column recaps how Day took her own personal gaming obsession and turned it into a low-budget original series show that quickly became an online hit. Picking up sponsorships from big names (Sprint and Microsoft) led to the series not needing to rely on the still-shaky Web advertising business model, and has allowed her to expand the business side of things. Day's company now has deals with iTunes, Hulu, and Netflix and is about to launch a new series in conjunction with Electronic Arts based on EA's popular Dragon Age franchise.
This new series will also represent the first time Day is giving up control of the intellectual property - in a sense she's participating in a shared universe of EA's making. So far this appears to be a win-win deal: Day is an avid fan of EA's Bioware game products and was eager to do the show, and EA has to this point kept a mostly hands-off approach.
As with any of these individuals' stories I'm not sure this could be the blueprint for anyone else's success. Day brings a unique combination of talent and obsession - her promo music video for The Guild ("Do you wanna date my avatar?") played off both her personal good looks and the well-established male sexist tradition of creating anatomically unrealistic female avatars in gaming. Because she was poking fun at herself as well as her fans it helped cement her insider cred in a way that would be hard for someone else to duplicate. Similarly, Day has successfully made a transition from crowdfunded to corporate- and merchandise-funded production, a form of the patron model that many creators dream of but that comes with its own set of perils.
I've been reading a bunch of things lately written by and about people who do creative work for a living (I blame Gaiman's long silence). Here are a couple of articles I think Copyfight readers will enjoy:
First up, The Independent had a feature earlier this month on Steph Swainston, titled "I need to return to reality'. The story covers Ms. Swainston's decision to give up a job as a published fantasy-novel author and start teaching chemistry in school.
That's sort of the reverse path of a lot of authors who work at traditional jobs while they write part time or after hours in the hope that one day they'll make enough from publishing to be able to give up their "day jobs". In reality, of course, you exchange one day job for another. One thing you see repeatedly in authors' blogs is the clear statements that writing is a job, a job you work at a lot during standard work hours, and it's hard work. It seems to be this latter that has motivated Swainston to bail halfway through a two-book deal.
There's just too much stress on authors [...] The business model seems to be that publishers want a book a year. I wanted to spend time on my novels, but that isn't economically viable.
In this vein let me also commend to your attention a blog entry from John Scalzi on the pace and page-count of releases. Both Scalzi and Swainston are making the point that writing - even though it's a job - still requires a potentially long and certainly unpredictable amount of time to go from signed contract to publishable state. And while almost every editor and publishing house I know is very flexible and frankly expects authors to miss deadlines the related point in Swainston's interview is that missing a deadline also means no checks getting deposited in the bank. Bill collectors tend to be a lot less forgiving than publishing houses when one is missing their deadlines.
Swainston's other point is complex and potentially more touchy - writers, she argues, end up writing inside a bubble. Divorced from other contact with the world writing can not only be a solitary and lonely activity but this lack of contact can leave an author feeling a loss of meaning in her life. Swainston's decision to teach chemistry is no accident - she finds it "feeds that sense of wonder" that all authors need.
The second artistic item is musical: Bob Ostertag writes in the August issue of The Wire (available early online) about his experiences going from a standard CD/catalog-sales musician to giving away all his music for free online, an act he called "professional suicide."
Compare that, then, with the experience of giving his music away for free download online. He reports that downloads are now 10-30x what sales numbers were, but on the downside people are not using his site's mechanics to donate money voluntarily in recompense for what they choose to download. Ostertag notes that this feeds his soul and motivates him - just as Swainston was seeking her own motivation. But also like Swainston, Ostertag has real bills to pay. And like Swainston, Ostertag pays those bills with a teaching gig.
Ostertag's column goes on to discuss structures and changes. Echoing points I noted last May, Ostertag agrees that music listeners never had it so good. Compared to five years ago, tens of thousands more albums are being released, millions of band pages are going up on MySpace, and (I would add) thriving efforts such as blogs run by DJs, musicians, composers, and bands reaching out directly to their fans and potential fans.
The question that remains unanswered, sadly, is whether something that is this good for music lovers must remain not so good for music makers. And really, how do we want to compensate people who are making all this music?
What Anderson's piece points out is that ACTA is going through this ridiculous cycle of secret negotiation followed immediately by leaked copies of the drafts. The leaked copies draw fire from all quarters and the negotiators hunker down again behind closed doors for another round, as if somehow their latest deliberations would remain behind those doors. It's not always clear who is leaking the drafts or why, but it is clear that both the parties involved in the negotiations as well as the excluded players are unhappy about it. Libertarian and pro-Copyfight bloggers are also screaming mad about the treaty's provisions and process. Cory has been dogging the story at boingboing for months.
So, what's the point here? What is so important that the US has to blackmail other countries in an effort to keep the process secret? I don't get it. The entire thing is degenerating into a farce, as Anderson highlights. So far that farce hasn't really penetrated the mainstream media but if this keeps up I can't see any way for the treaty to get approved. You would think the US had learned something from the backlash that arose against the healthcare reform legislation's secret back-room deals. Apparently not.
(In the spirit of helping out businesses trying new models I should note that ars is offering "ars premier" with "insider access" to its content, live chats with the editors and industry people it interviews, etc. I'm not yet a subscriber myself but if anyone has experience with this or similar subscriptions I'd be interested in hearing from you.)
Unlike, apparently, most Copyfighters, I've never thought a negotiated peace was possible. The Cartel just thinks too differently, and has wholly incompatible motives, for a negotiated solution. There are only three possible outcomes - subjugation that will kill off the subjugated technology (RIP DAT), the death of the Cartel dinosaurs (RIP pretty much every retail music outlet, half the major labels, most newspapers and on and on), and the outcome that gives me the most hope, which is the growth of a new generation that views this fight as uninteresting and irrelevant. That generation will rip, mix, and share because it's what they've always done.
The laws and regulations, the FUD, the technological shenanigans can make it harder but you cannot sue, scare, or legislate culture out of existence. Not if you're the Chinese government and not if you're the Cartel. Change the kids and you own the future.
I wanted to point to two very different published items, both of which bring thought to bear on the current state of the Copyright Wars.
First, Nate Anderson - who has been doing stellar work in the trenches of this slogfest for several years, primarily at ars technica - published a piece called "100 years of Big Content fearing technology". This gem simply puts together things that the Cartel have spewed as they dug in their heels and fought kicking and screaming against every innovation of the last century. We all know about Jack "Boston Strangler" Valenti's insane rant before Congress, but did you know that John Philip Sousa penned a screed against the gramophone?
The Cartel did manage to kill DAT (Digital Audio Tape) by convincing Congress to impose onerous fees but their success in suppressing other advances has been less. And everywhere they failed, they made money. If this makes any sense to you, then you are not like me.
Warren Ellis, for some months now, has been publishing an online Web comic called "Freak Angels." It appears approximately every week, for free, on Fridays. And like many who publish online for free, Ellis makes money from associated sales of merchandise including hardcopy versions of the comics. In today's "Interlude" page, he notes that the preceding strip, which ends in something of a cliff-hanger, is the end of what will be printed in Volume 3. And he has some amused comments about how some of his fans respond to the different availability of the free and for-pay print editions. It's an interesting contrast to the men that Anderson quotes.
It has been said many times, but it bears repeating once more: the biggest threat to most new artists is not copying, but obscurity.
I've been watching the struggle as one of my favorite new acts - the steampunk band Abney Park - works through the difficulties of getting themselves, and their unusual musical approach - noticed. They don't fit any radio or categorization format I'm aware of. They do mix in elements of industrial, but they also do old-style sea shanties, which doesn't make them consumable by the usual radio stations that play industrial.
Unlike writers, who can organize things like an Interstitial Arts book publication and join in the effort to publicize themselves, the band seem to be going it mostly on their own. They've played a number of conventions - steampunk cons mostly - and related festivals.
And in addition, they're giving it away. Almost every song they do is up on YouTube and other sites. If you prefer a direct feed you can subscribe to a blog (LiveJournal) at: http://community.livejournal.com/abneypark - and get fresh live vids of songs that aren't even released yet. According to numbers I've seen there, at least one of their vids has over 100k hits on YouTube.
Still, I'd venture to guess that most folk don' t know about Abney Park and I'm certain there are thousands upon thousands of other great bands out there all needing exposure and ways to connect to people who will love what they do. We so desperately need ways to help these creative types, and not more ways to lock up content.
And there, near the end of the talk, Tulley just flat out says "teach your kids to break the DMCA". Because it's a law that attempts to limit how we can interact with the things that we own. True, that. Unfortunately, TED talks are highly compressed presentations so Tulley doesn't go into any sort of detail, nor does he appear to have followed up on the idea publicly.
Bruce Schneier has an update on his article for the Guardian describing the "movie plot" efforts to link public photography and anti-terrorist work. The gist is that there is no credible evidence linking public photography - even of public buildings, infrastructure, etc - to terrorist acts. Therefore, acting against photographers is not increasing security - it's just making people feel good and wasting resources.
The idea is that Cory gives away this book - it's online for free. But there are people (true fans, maybe?) who want to donate to Cory in return for the value they receive with this book.
Cory doesn't want direct donations, not least because he doesn't want to cut his publishers out of the loop. In the donation page linked above he points out that they add significant value. So what he's proposing is a method for people to get copies of the book into the hands of teachers and librarians, who otherwise might not have funds for it or who might have to pay out of their own pockets. Librarians or teachers who want to receive free copies put in requests and they're matched up with people who want to donate. Cory and his staff are apparently donating their time and administrative effort to coordinate the giving.
Gaiman included a few "final" thoughts on copyright. Given how much he's involved himself in the discussion of these issues over the years I seriously doubt this'll be his final word, but perhaps he feels he has no more to say on the Rowling case.
In this entry he's reflecting on his own copyright battles with Todd McFarlane over authorship of certain material that Gaiman wrote. He also links to the judge's decision in that case. There are no real parallels that I can see, and Gaiman says as much. Still, it does point out that he has first-hand experience of someone trying to steal things he wrote and that there is a framework within law for dealing with such things - where such framework does not include Ms. Rowling's emotional appeals to 'think of the charity'.
He also notes that his own two first books were at best legally shaky in Fair Use terms - an aggressive lawsuit could easily have shut him down from writing anything more. On the one hand that'd be a shame - Gaiman is popular and has gone on to write many well-respected and awarded books. On the other hand, I'm not sure it's a career path we can depend on a lot of people following.
That's not much for a full-length novel, but apparently it's enough to interest people, since H-C reports that weekly sales of the book have gone up threefold since the start of the experiment. Sadly there's no way to correlate sales data with the free online read data. Perhaps it's new readers, perhaps it's people remembering they meant to buy it anyway, or replacing an old copy. Perhaps it's people dissatisfied with the cumbersome online interface but interested enough to invest their cash in getting a better interaction.
One experiment is just a data point and doesn't necessarily tell us a whole lot. However, the positive trends in all these numbers are probably good enough leverage for Gaiman to push the experiment further. We shall see. Meantime, it's probably not wrong to say "free books online sells more paper copies." I think that's what Cory said last year.
Clay Shirky gave a talk at the Berkman Center covering some of the ideas from his new book Here Comes Everybody: The Power of Organizing Without Organizations. The video is online from Harvard under a Creative Commons license. The focus of the talk is Shirky's notions about the enabling power of the Net and along the way he has a lot of interesting things to say about sharing, including Napster and a variety of other collective sharings like American dubbings of Japanese anime.
There's a lot of power in sharing and Shirky points to several interesting examples of that power. The video is a bit long and definitely not high production value, but definitely worth the time. I need to read the underlying book to parse through the ideas more fully than I can get from a single talk.
Feel free to spread the link as widely as possible around the web. If it works, and people read it, then a) we may be able to put up another book and b) sooner or later they'll simply let us give away the book in electronic form....
Yes, that's what he said. A privilege of success on the scale of Gaiman's is that you can think in terms of just giving your books away. But it's still true that other authors of comparable stature and success haven't publicly stated this as a goal. So excuse me if I boost signal for Gaiman a little bit.
Gaiman's blog entry today also quotes from a New York Times story on this contest. In that Times piece Gaiman admits that he didn't buy every book he read growing up. He borrowed them from friends, from libraries, found them, and so on. Eventually he grew up into a normal book-buying adult.
The point, he says, is not just that, it's that
...there's not and there has never been a simple one-to-one relationship between the books you read and way you find authors and the books you buy. It's more complicated than that, and more interesting. It's about the way that it's assumed that books have a pass-along rate, that a book will be read by more than one person. If the people who read the book like it, they might buy their own copy, or, more likely, just put the author in that place in their heads of Authors I Like. And that's a good place for an author to be.
Or should that be "weasel"? Anyway, John Bringardner has a fascinating piece up this week on law.com on Ray Niro. If that name is at all familiar to you it may be because the term "patent troll" was initially coined to describe the activities of Niro and his firm. So where is our hero today? Bringardner uses the polite phrase "controversial situations" - I call it a soap opera.
In episode 1, Niro won a big judgement for Philip Jackson against Glenayre Electronics Inc. on a patent infringement case. However, the judgement was reduced by more than 75% on appeal, leading Jackson to sue Niro for malpractice.
In episode 2, Niro counter-sued Jackson, in part on the grounds that the patent, which he had successfully enforced, was invalid. The two parties settled.
In episode 3, a blogger calling himself "Troll Tracker" started publicly and repeatedly using the word 'troll' to refer to Niro, who didn't much like it. In response, Niro threatened the blogger with a charge of violating a patent, number 5,253,341.
The 341 patent has a long and bloody history. Niro tried to use this patent once before to, as Bringardner puts it, "silence a vocal critic." Niro's lawsuit led to the patent being re-examined and most of its claims invalidated. But there is still one surviving claim, though it's not clear to me how that claim (about image compression) relates to public criticism of this particular patent troll.
In this week's episode, Niro is offering USD 5000 to anyone who can lead him to the identity of the so-far-anonymous "Troll Tracker" blogger.
Finally, Bringardner notes that Troll Tracker has been remarkably effective at publicizing some of the inner machinations of Niro's patent suits, particularly his relationship with one Scott Harris, a now-former partner at the law firm of Fish & Richardson. He's "former partner" in part because Troll Tracker revealed that he was behind a Niro lawsuit against Google, which happens to be an F&R client.
Lots of writers are blogging during and about the strike. Emma Bull pointed to this post from Kay Reindl. The bit that is most relevant to Copyfight is where she expresses her indignation that the studios don't want to share download revenue with the writers:
When you illegally download something and the network doesn't get any money for it, they call it piracy. But when you download something or watch streaming video with commercials and the writers don't get any money for it, the networks call it promotion. DON'T LET THEM GET AWAY WITH THIS. Steal from the networks. You KNOW how much they hate it. But we're not supposed to hate it if they steal from us. (emphasis in the original)
I'm not particularly keen on a recommendation to steal, even from the Cartel thieves, but it definitely captures the spirit of what this debate is about. Kay Reindl has been on the outside and on the inside long enough to know what matters to writers, and it sure isn't the Cartel's view on what matters.
Doctorow freely admits that he has not performed any scientific comparison studies. But drawing on his own experience, the experiences of Baen Books, O'Reilly's experiments, and a couple of academic studies, he makes the case that giving away free ebooks promotes the sale of physical books. He argues that the act of reading a long-form piece such as a novel requires a level of concentration that computers make difficult because they offer distractions and enticements to do other things.
(The fact that this is my third attempt to post this entry, one lost to distraction and one to a crash, has nothing to do with my agreeing with him. Really.)
Doctorow is also writing a biweekly column for the UK Guardian under the heading "Digital rights, digital wrongs". The columns, of which there seem to be three so far (what happened to September 18?) are collected here: http://www.guardian.co.uk/technology/series/digitalwrongs
Trent Reznor has some choice, and not-particularly-friendly-to-the-label words for his live concert fans. Now posted on YouTube for all to see, Trent notes that the price of CDs hasn't come down and that means they're "still ripping us off."
I dunno if this means he's not getting his cut of the CD shares or he feels his $1 out of the retail price isn't significant enough to care about. Or maybe he's just out to piss people off and get some publicity.
The Cartel's jihad against its customers continues onward. It would appear that most defendants just pony up settlement money. However, a group of Oklahoma State University students have decided to fight and they're pulling out their own expert witness to do so.
According to the "Recording Industry vs The People" blog, the Cartel are attempting to shake loose the names and addresses of 11 OSU students who are the target of John Doe subpoenas. The students, in moving to quash the subpoenas, have hired their own expert witness who is picking apart the RIAA's expert testimony.
Security expert Jayson Street's declaration (here online as a PDF) doesn't contain much that's novel to computer-experienced people. But he does appear to be trying to educate the judge on the technical uncertainties of things like mapping IP addresses to individual people. This is a key claim in the Cartel's subpoenas and they're routinely given names on the basis of what Street calls errors of fact.
Even if the judge is willing to accept that assertion he may still allow the subpoenas to go through. After all, the defendants might still raise this objection at trial, should they choose to fight it. Realistically, though, the cost of such a fight far exceeds the cost of simply paying up and the rewards are dubious even if you're willing to go to the lengths Tanya Andersen has gone to, counter-suing for malicious prosecution. The hope is that the Cartel get blocked from using this tactic entirely.
But Copyfighters will probably remember him best for his dogged refusal to understand that new media could be made part of new business models. Famously, he testified before Congress that the new recording technology VCR would do to movies what the Boston Strangler did to women. Of course today we know that movies make more money from video (DVD) distribution than they do in theaters.
There are a number of obituaries appearing and, in the tradition of not speaking ill of the dead, most laud his accomplishments. I can't help hoping, though, that the passing of the old guard will open up the possibility of a newer and more cooperative relationship emerging.
Jobs asserts that if the Cartel would just do this, Apple would love to jump on the bandwagon. He further seems to be awfully naive about the Cartel's efforts to pull in all non-DRMed forms of music. Yes, they sell CDs but they're desperately trying to force people away from them. Jobs apparently has never heard of the "analog hole" and Cartel efforts to cover THAT with DRM. Jobs further seems not to understand why lockouts and permissioning are such a fundamental part of Vista, even while Apple is busy making fun of it. (MOV link)
Alito signed an unpublished copyright licensing opinion in Operating Systems Support v. Wang. I’ll have to read it very closely, but a quick glance, it looks like a business-to-business software licensing agreement. Looks mostly like a close contractual reading of the terms of the various licensing agreements, without much analysis of the Copyright Act. Ideoblog looked at Alito’s contract cases, and said that
Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs.
That could bode ill for any shrinkwrap cases that make it to the Supreme Court, including anti-reverse engineering clauses, anti-resale/First Sale clauses, or other consumer-unfriendly clauses.
Update: William Patry weighs in: "Copyright lawyers should cheer the appointment of Judge Samuel Alito to the Supreme Court. In 2004, Judge Alito was the author of the en banc opinion in Southco, Inc. v. Kanebridge Corp., 390 F.3d 276. He was also the author of a panel opinion in the same case three years earlier, 258 F.3d 148. Both opinions are thoughtful looks at basic questions of originality. In addition to his extremely impressive legal skills, Judge Alito is a wonderful human being, the opposite of the 'Scalito' nick name bandied about."
A Mad Tea Party is a blog that featured the anonymous musings of an especially sharp law student with a keen interest in restoring and preserving balance in copyright law. The bad news: the author graduated from law school, and "A Mad Tea Party," which has often gone quiet, is now officially retired. The excellent news: the anonymous blogger has finally stepped forward to reveal her identity. It turns out she is Brandy Karl, the author of outstandingFindLaw columns on copyright law and policy that we've featured here @ Copyfight. Even more excellent: she has just launched a brand new weblog where she'll offer her musings as she builds her private intellectual property practice in Boston.
Here's a taste of said musings: a post reacting to the news that Universal Music Group is working to squeeze a $7,500 yearly fee from a small local music venue for videos that serve to promote its artists and music:
I'll refrain from any legal comment on the matter, but it seriously makes you wonder how many small and medium sized outlets will continue playing UMG videos. I'm sure that there are other labels absolutely willing to promote their artists through (free) video. A reasonable fee - perhaps a nominal one that helps shift some of the shipping or replication costs to the entities that display the videos - might be a different matter. But putting the screws onto small outfits really doesn't make any sense, and in the end, it's a disservice to the artists that UMG represents.
Brandy tells me she won't always be able to write on the latest copyright news, but you can be sure that whatever she tackles will be worth the wrestle. Check out bk! and pass the word along.
P2P.net has a wonderful interview with my EFF coworker Fred von Lohmann (who's not only incredibly sharp but also generous-spirited, funny, and gracious -- a pleasure to work with, a privilege to know). The interview is far better than the usual soundbites for understanding why Fred became Fred -- that is, a relentless, passionate defender of the public's rights in the networked world.
Apropos of our coverage of the Patricia Santangelo case, here's Fred on the RIAA's litigation campaign against allegedly infringing filesharers -- and their parents :
p2pnet: Is it acceptable to make parents responsible in a financial or other sense for something their children may, or may not, have done?
von Lohmann: The increasing number of lawsuits against the parents and grandparents of alleged file-sharers is a particularly unfortunate part of the recording industry's litigation campaign against music fans. There is no precedent in copyright law for holding parent responsible for the infringing activities of their minor children. If the question ever went to court, I believe the RIAA would lose. Unfortunately, the RIAA has made it clear that, if a parent fights the lawsuit, they will simply sue the child directly.
Most parents are unwilling to expose their kids to that kind of ordeal, so they settle.
The Reg reports on an announcement by Utah Republican Steve Urquhart of his intention to run against Senator Orrin Hatch in 2006. Hatch, referred to both by myself and by The Reg as the Cartel's "favorite sock puppet" is a prime hate target for techies of all stripes. His support for the DMCA and later the abortive "Induce" Act hasn't pleased many people outside of Hollywood. Urquhart by contrast is tech-savvy (he has his own blog, for example) and believes that his conservative credentials will stand up well with local voters. Meanwhile, he wants to reach across state and party boundaries to raise funds for his effort to unseat the incumbent, appealing to those online who have been hurt by Hatch's advocacy for the Cartel.
It's a moderately clever proposal (Urquhart has got to be better than Hatch on almost any metric) and likely a tactic we'll see more of in the upcoming election. But Hatch didn't stay in the Senate for 28 years by being stupid or lazy. My guess is that he'll use the local Republican machine to crush this upstart, possibly even before primary season.
John G. Roberts is now Bush's nominee to SCOTUS. My bet is that most of the questioning and public debate will be over his positions on social issues such as abortion. I particularly like Lyle Denniston's extended commentary on SCOTUSblog about the "gang of three." But we, of course, want to know what Judge Roberts' position is (or might be) on intellectual property issues.
The true successor, says Bob, will be an API-based service built from pieces offered by different organizations, so different from Grokster that there won't even be an entity to which the intention standard could be applied. Erm, maybe.
Cringely leaves out a lot of steps in this chain, one of which is that the semantic Web project is in its fourth year and shows no signs of disturbing the huge growth of the WWW as we know it. There's every reason to believe that the semantic Web will remain a pipe dream for many years to come, and file-sharing will likely continue to evolve in the meantime. You can also bet that the intention standard will be tested in plenty of court cases soon. My personal feeling is that the Cartel will take this as carte blanche to go on deep fishing expeditions into the business model of anyone they don't overtly control, under the guise of trying to show "intention."
I'm thrilled to point you to a new podcast program by The Vision Thing featuring a number of my favorite voices in this space: Joe Gratz, Copyfight's own Dr. Alan Wexelblat, and David Bollier. It covers a variety of topics we've been discussing here at Copyfight, all hovering around a few core questions -- what's fair use? How is copyright threatening innovation and creativity? And if we reject WIPO's vision of IP extremism, what do we embrace?
Lessig thinks that the most important job they have is to instill those values in the leaders through discussion & debate. Toby says he's talking about 8 people on a DC sightseeing trip. Does Lessig think he's going to reverse 50 years of brutal dictatorship by teaching those 8 people democratic values? Lessig says the 8 are all the President's men & they're teaching them how to scrutinize power.
Update #3: Larry himself, characteristically humble: "My story is on the West Wing because I was at Harvard -- not because the brilliance of my intervention had been noted and reviewed, but because I was teaching talented kids who would prove to be important."
JJ: I do believe in the need for copyright. I flatter myself to think that I am a creative person; if I ever get off my butt and write that successful book or movie, then I believe my child should be able to benefit from it just as much as if I had instead bought and tilled a farm. As a media executive, that's clearly in sync with my interests. But I do believe that the industry and Congress are going overboard with such efforts as DMCA and INDUCE. Yet that's not the worst of it. They are being strategically stupid. Instead of trying so hard to find ways to keep people from consuming our products (as we used to say), wouldn't it be so much smarter -- and more lucrative -- to find ways to exploit this clear desire by the people to control and distribute our stuff? Instead of locking down a TV show so it can't be distributed, why not embed ad calls and sponsorhip pings (or subscription codes) in it so we make money every time it is copied and shipped to a friend? Then it would be in the interests of content creators to see their content distributed as widely as possible.
As many of you already know, Siva Vaidhyanathan is one of the leaders of the current movement for balanced copyright, and his first book, Copyrights and Copywrongs, is among the handful of canonical texts for understanding what a number of us have been calling "the copyfight" -- not only what it is but why it matters.
The Nov. 19th edition of The Chronicle of Higher Education has a great new profile of Siva, exploring (among other things) why and when it began to matter to him:
Mr. Vaidhyanathan came to his academic career in copyright not through an interest in law but as a fan of hip-hop music. In college he loved how rappers used samples of recorded music to form the backbones of their songs, which brought new meaning to both the rap lyrics and the sampled, looped tune.
Despite poor grades, he slipped into graduate school -- also at Austin -- and took a course on American music. At the time, hip-hop was getting "bum rushed," he recalls. Established songwriters were threatening rappers with copyright lawsuits, effectively stripping a whole creative element out of the music.
"I decided I had to read everything I could on copyright," says Mr. Vaidhyanathan. "I went looking for a clearly written book for laypeople to read, and I found that there wasn't one. I thought I should probably write one."
What's intriguing to me about this is what it reveals about the people in this movement -- that what inspires many of us to become copyright activists is our admiration for the creative process. This is, of course, the opposite of what we hear from the "other side," which imagines/insists that people fighting for balance are a bunch of lazy freeloaders -- adherants to a morally suspect "Everything-For-Free" philosophy.
Yesterday, my Everything-For-Free colleague Seth Schoen, who is far more brilliant than he has any right to be, wrote an email to the Dave Farber IP list that is ostensibly about whether TiVo has betrayed its customers by selling out to copyright holders. What it's really about is the struggle to maintain creative freedom in the face of companies or organizations that would dearly love to own (control) the process. My friend and former boss, Harvard law professor Jonathan Zittrain, says watching TiVo is like "mainlining" television -- and for the copyright cartel, that's plenty good enough. It has decided it's It's time to stick a fork in the PVR and move on. Seth begs to differ:
I would not get so worked up about any one action that TiVo takes. We know their strategy, and it involves co-operating with movie studios to impose restrictions on end users. The reasons why they do this are not mysterious. If you want to criticize TiVo -- and that's fine with me! -- the right place to start is much earlier in the company's history.
But if you actually want to opt out of the DRM game, it seems to me that the thing to do is to spread the remaining unrestricted technologies as far and wide as possible while they're still legal.
People who got excited about "convergence" last decade often didn't mention DRM (and sometimes weren't even aware of it).
In terms of end user control, there is an opportunity for [Consumer Electronics] devices to converge up (enhancing customers' control) and a risk of PC devices converging down (eroding it). I think the world the entertainment companies have built is providing exactly the wrong incentive at every point as this question is worked out.
These are not the words of a freeloader. They are the words of someone who plans to spend his Friday evenings after work patiently guiding a group of volunteers in developing new recipes for something far better than mainline TV: technologies that allow us to continue to create as well as to consume.
Neofiles has an interview with Siva Vaidhyanathan that sheds light on how he differs with Larry Lessig on a few key issues -- including the question of whether the recording industry lawsuits help or hurt the cause of copyright balance. Larry opposes the lawsuits; Siva approves -- in part because he believes that the suits represent a social and financial cost burden that the recording industry and the public will not agree to bear for long:
Neofiles:Lawrence Lessig clearly believes that copyright law is the greatest threat to free speech and discourse in America. You seem to agree with that view to some extent. How would you differentiate your views on this from his?
Siva: Copyright is the most pervasive threat to free speech in America. By that, I mean that it's the instrument of censorship most likely to stifle the most Americans. Other instruments of censorship -- USA PATRIOT Act, secret detentions of immigrants and uncharged terrorism suspects, restrictions on public demonstrations, the thugs who arrest mothers of soldiers at Laura Bush campaign stops -- are more acute and more deeply troublesome than copyright. But they are rather narrowly targeted and thus less influential within this big, teeming democratic culture as a whole. [...]
The only important difference between Lawrence Lessig and me involves our attitudes toward the civil courts. My basic complaint about the current copyright system is that Congress and the copyright industries have driven copyright regulation out of the domain of human interactions like courts and into machines themselves. They have tried to make copyright enforcement cost-free and risk-free. Taking someone to court costs money. I think this is a dangerous, technocratic trend. And Lessig agrees with me so far. But he thinks music companies suing potential infringers over peer-to-peer usage is a bad idea. I see the lawsuits as the proper way to deal with accusations of infringement. ...I don't like the idea of my students losing $3,000 for doing something relatively harmless. But over time, the industry will see that the public cost of the lawsuits outweigh the imagined deterrent effect of them.
"Blaming the technology does not address the issue. We must vigorously enforce intellectual property protections and prosecute the violations, not the technology," Bush wrote.
Kerry responded with, "I strongly support attacking bad behavior -- putting child pornographers behind bars and prosecuting individuals engaged in mass piracy. But, regulating technology should be a last resort to solving any content problem."
Some have wondered why the MPAA has been so successful with members of the Republican Party, despite the fact that Hollywood, in general, provides much more support to Democrats. Well, those people can continue to wonder:
Almost everybody here [at the Republican National Convention] that I've met has been open, curious, friendly and positive. They all want to work with me . I recognize that there are some who wanted a Republican in my job of president of the MPAA. But I think folks also wanted somebody good at consensus building and that would fight for the motion picture industry. Clearly the movie industry, and all the industries interested in creative and copyright protection, have a lot of friends here in the Republican Party.
What he has to say on copyright infringement:
I don't think that MPAA is anti-technology. But it's vital that we combat piracy with a three-pronged approach: improve [piracy deterring] technology, enforce the laws and educate people, largely the younger people, in high schools and universities....We are engaging Congress on piracy. There are several bills that predate my coming into this job that are aimed at addressing this issue. These bills will make it easy to go after pirates. I think what we need to do is make the standards [that allow law enforcement] to go after violators more realistic.
His take on the tech industry ought to send shivers up the spines of Silicon Valley types:
I have spent time with our technology people in Washington, trying to familiarize myself with the technology. But the bottom line is, we need to make it as difficult as possible for people to engage in piracy activities.
There a number of interesting tidbits in the interview, such as the fact that 70% of the MPAA's 250 employees are involved in anti-piracy work and that the anti-piracy office is "really where the interfaces with the studios" are. The MPAA will also continue to make itself heard in promoting draconian copyright laws through international treaty:
One of my goals is to use my background and experience in dealing with international trade issues, particularly as I was involved in the agricultural arena, to further the market-opening free-trade discussions.
It is practically Orwellian how "market-opening" in MPAA-speak means innovation-controlling, as the MPAA exports the DMCA around the world.
Of course, there is a hint of arrogance in Glickman's comments regarding Rep. Rick Boucher (D-VA)'s Digital Millennium Consumer Rights Act:
Obviously there's some support for the Boucher bill -- and I think it needs to be fought vigilantly -- but my judgment is that there's no imminent threat of passage. It's going to require vigilance on (the part of) folks like the MPAA, the (Recording Industry Association of America) and others. The battles have heated up even more in the last couple of years on this. Rick is actually an old friend of mine; we served together on the Judiciary Committee. I have to go in and teach him a few things when I get a chance. (Laughs)
Let us hope he finds his arrogance mistaken.
Most importantly, Glickman's main focus will be copyright issues at all levels:
Copying is an international plague; it's pure, downright theft. The question is: How do you deal with this in the modern, changing world? It's a multifaceted strategy. Specifically as it relates to the movie industry, it has to be a combination of aggressive law enforcement by state and federal authorities, use of litigation, civil litigation (and) education. I spent two years in a university at Harvard, and I would hope to use those talents in part of the (public relations) and educational strategy to further the work that has already been done on college campuses. (Also important is) being open to new technology, exploring with the people who create new technologies how one permits those technologies to flow and develop but at the same time respects the creator's rights.
Frightening language in its anti-innovation clarity: aggressive state law enforcement, how one permits technology to develop.
Glickman will be leading the charge from the other side of the copyfight, what he says and does is important.
What is really scary about this interview is the profound ignorance, or is it, perhaps, "willful blindness" Valenti demonstrates.
Unclear on How Cryptography Works
I have said, technology is what causes the problem, and technology will be the salvation of the problem. I really do believe we can stuff enough algorithms in a movie that only the dedicated hackers can spend the time and effort to try to plumb through those 1,000 algorithms to try to find a way to beat it. In time, well be able to do this, because I have great faith in the technological genius thats out there.
Has Never Heard of 17 USC 107
There is no fair use to take something that doesnt belong to you. Thats not fair use. If youre a professor in a classroom, you show Singing in the Rain to your class. You can fast forward it, and theres no performance fee for that. Thats fair use. Now, fair use is not in the law. People are taking fair use and changing it to unfair use and claiming that its fair use.
Doesn't Realize that the MPAA Opposed TiVo to Go
So there are no restrictions that Hollywood wants to place on what people can do with media on their computers?
Well, I cant tell you that. We have to see what the technology can provide.
Thinks Digital Things Last Forever
When you go to your department store and you buy 10 Cognac glasses and two weeks later you break two of them, the store doesnt give you two backup copies. Where did this backup copy thing come from? A digital thing lasts forever.
Judge...Professor...Dick Posner suggests that those interested in learning more about him consult his home page at the University of Chicago, but there are a few other spots Copyfight readers might want to visit whilst making heads and/or tails of his (blog) opinions:
Grokster, Intent, and Cert, in which Derek Slater grapples with C.E. Petit over the important differences between the Napster, Aimster, and Grokster opinions, and, interestingly, argues that they don't amount to much -- and that as a consequence, the Supreme Court may refuse to grant cert in a Grokster appeal:
The narrow holding [in Aimster] is that, to meet the Sony standard, something more than mere speculation about non-infringing uses is required. That's fairly consistent with Grokster and Napster and overall not that big a deal. Looked at that way, there is no circuit split. Posner's broader interpretation of Sony was irrelevant to the Aimster case, and thus its conflict with Grokster may also be irrelevant.
Unfortunately, Posner cannot discuss Grokster. But there's a lot he can and does say about another important battle in the copyfight: the effort to undo the damage the CTEA and Eldred decision have done.
"Larry Lessig from time to time flagellates himself about losing the Eldred case in the Supreme Court. He shouldn't; it was unwinnable for a host of reasons," writes Posner. "All this said, the net effects of the Act and therefore of the Eldred decision are probably bad. But the worst of them should be remediable fairly easily."
Easily, you say? Pray tell, how?
Posner's -- Dick's -- answer comes in two parts (so far): Licensing and Fair Use and Fair Use and Licensing. In part one, he argues that the main problem with copyright-forever-less-a-day is that it raises the transaction costs for publishing old works. In part two, he suggests that a form of fair use codified could save the day:
[It] should be considered fair use to copy an old work if the copyright owner hasn't taken reasonable steps to provide notice of his continued rights, as by entering his name and address in a copyright registry...Then if an Eldred wanted to publish some old work, he would consult the registry or registries and if no owner was listed (which would usually be the case, because most old works have no commercial value and so their owners won't bother to try to keep them from falling into the public domain), he could publish it without a license.
An interesting alternative to the burden shift proposed by the Public Domain Enhancement Act, which (among other things) asks copyright holders to pay a very small fee after 50 years if they wish to retain copyright. I wonder what Larry made/makes of it?
Oops -- didn't see Ernie's previous post here @ Copyfight; do check it out, below.
Greplaw: You are not a great fan of copy protection. But how shall intellectual property holders commercially survive in an environment where perfect copies are a part of everyday life?
John Gilmore: I thought I knew that answer in 1989, but I wasn't sure, so I started a business to see if I was right. Cygnus Support, later named Cygnus Solutions, got paid by its customers for writing free software and giving it away for unlimited free perfect distribution.
The way I found to make money from unlimited cheap/free distribution of perfect copies was to go with the flow rather than fighting it. Encourage the world to distribute your work to every person on earth; then every person on earth becomes your potential customer. Build a commercial relationship with people who depend on your work; they won't care if the rest of the world can have it, as long as they get your attention so it meets THEIR needs. Charge people for the act of creation BEFORE you create it (the same way concert tickets work); then you don't have to limit where the created work goes AFTERWARD. For a fee, alleviate the troubles that come from too much information, too poorly understood, too poorly coordinated, too poorly documented: provide rapid, correct answers to customer questions.
I'm sure the Cygnus business model isn't the only way to make money from unrestricted distribution of perfect copies. I was content to find one. It made dozens of millionaires from the ranks of the employees. It made me far more money than I made from working at Sun.
Now, tell me how *musicians* can make a living in an environment where oligopoly distributors steal their creative work as a "work for hire," pay them by the hour for creating it, regardless of how well it sells, lock them in by contract for their next six works, and even then cheat them on the accounting.
Then tell me how *programmers* can make a living under the same conditions (minus the cheating and the oligopoly). If we eliminated the cheating and the oligopoly, would musicians have about the same deal as programmers? I suspect that it's roughly so.