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.
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.
Shirkey has a few specifics and a few generalities in his "Year Ahead in the Media" piece on guardian.co.uk. Nothing hugely surprising - more newspapers will stop printing, magazines (specifically specialty publications) belong online, DRM for television shows is a disaster, and print-on-demand for books will flourish.
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.
His blog entry pulls out all the embedded URLs from the article and includes four links to discussions of photographers rights. Bookmark this one: http://www.schneier.com/crypto-gram-0806.html#1
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.
Neil Gaiman posted an update on the experiment of making American Gods free online to read. Numbers from Harper Collins, which is hosting the e-book, show a decent number of unique views and a fair number of page impressions. If their numbers and my math are right the average viewer is reading about 45 pages online, which is 1-2 chapters.
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.
For the next month, your free copy of American Gods is waiting for you at http://tiny.cc/WRiXE
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.
Neil Gaiman has been blogging online for seven years now. If you go to that link you'll find a poll asking you to vote for which of Mr. Gaiman's books is to be put online for free for a month to celebrate the event.
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.
Gaiman has previously confronted questions of people free-trading his stuff and he's consistently sided with the fans. So it's not surprising that he'd point out the truth that our relationship to authorial work, and by extension copyrighted work, is complicated. Simply throwing around dramatic labels like 'piracy' isn't just wrong - it completely misses the point.
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.
I'm not sure one ought to pluralize DRM in that fashion, but who am I to naysay Steve Jobs?
The quote appears in a posting titled "Thoughts on Music" dated Feb 6, 2007 and authored by Jobs. In the essay he briefly covers the history of DRM-encumbered online music sales and urges people to stop pestering Apple to open up iTunes. Instead we should pressure the Cartel to sell its music online DRM-free.
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)
As long as you expect Disney to feed your brain and just sit there on your couch, Disney & co will always be able to control the content you see. DRM is the smallest part of it...
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:
As I mentioned previously, the music industry appears to be more than a little confused about what's marketing and what's distribution. I'm of the persuasion that although there is much overlap between the two items, it's very difficult to monetize every single output.
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.
Amen.
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 NYTimes describes his "paper trail of opinions" as "comparatively thin." According to FindLaw's profile on him, intellectual property has not figured in any of his more than thirty appearances before the Supreme Court.
So is his record blank in this area? I couldn't find anything, nor do I see anything in any of the more in-depth blogs, at least so far. Best bet: keep reading Supreme Court Nomination blog.
Last week's Cringely column is another of those "What's on Bob's mind" exercises, combining two widely varying topics - in this case the Grokster decision and the so-called "Web 2.0" or semantic Web.
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."
Second, the open API construction that Cringely is talking about is coming to pass in the guise of service-oriented architectures (SOAs). These SOAs are built using XML-based protocols such as SOAP that may be useful in the semantic Web, but aren't really the same thing any more than TCP/IP is the same as email.
Cringely's best quote comes at the start of the column, where he opines that
Depending on who you are, this decision probably appeared to be wise or unwise, fair or unfair, good or bad, and either chilling for technical innovation, or...well, chilling for technical innovation.
At least he got that part right.
(Full disclosure: at least one of my friends works at W3C on the Semantic Web team. No offense intended either way.)
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?
On a more granular level, we get to hear Joe, Alan, and David answer questions like, "Why did people roast Marty Schwimmer when he protested having his RSS feed scraped by Bloglines?" and "How does copyrighting the Bean that Shall Not Be Photographed protect the artist -- or does it?"
Very cool, and well worth the listen -- especially if you've been too busy to do more than skim the surface of these issues.
In the second scene of West Wing a character called "Professor Lawrence Lessig" walked in. The president said, "The Future of Ideas Lawrence Lessig?" Yes. Played by Rev. Jim.
Of course, he looked and sounded nothing like Larry. Still, pretty cool.
Heh. It's at times like these when I wish I had a television.
[Note to ILAW alums: I suppose this is one answer to Dave Winer's question last spring about which actor should play which professor in ILAW: The Movie. I still think Jon Stewart is the right choice for Jonathan Zittrain.]
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."
I've been a fan of Mary Hodder's since the days bIPlog took its first baby steps. Now she's got a profile in Wired. It was really only a matter of time. Congratulations, Mary!
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.
There's a lot more to say about this, but alas -- the day calls. Do check out the Siva profile and Seth's IP list email in full. Both are rich in food for thought.
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, we’ll be able to do this, because I have great faith in the technological genius that’s out there.
Has Never Heard of 17 USC 107
There is no fair use to take something that doesn’t belong to you. That’s not fair use. If you’re a professor in a classroom, you show ‘Singing in the Rain’ to your class. You can fast forward it, and there’s no performance fee for that. That’s fair use. Now, fair use is not in the law. People are taking fair use and changing it to unfair use and claiming that it’s 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 can’t 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 doesn’t 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.
