Let the Music Pay V

Derek Slater has an especially fine follow-up to his earlier post detailing objections to Charlie Nesson's much-discussed proposal for what I've been calling "hactivism-in-reverse." One bit in particular brings to mind something I'd like to see addressed in greater depth: the political viability of the solutions being proposed. Writes Derek:

Regarding his own proposal for copyright holder self-help, Professor Nesson asks, "Why is first reaction to it to look for ways to condemn it rather than for ways to support its legality?"

I don't think it's necessarily a knee-jerk reaction, if that's what he means. Myself, I'm somewhat closer to where Professor Fisher seems to be at on this issue, as expressed at the HLS discussion: "I don't think it would be terrible to move in [Professor Nesson's] direction. Actually it would be better than where we currently stand. But it would be unfortunate, on balance. Better than where we currently are, but far less good than the place we could be."

So Derek prefers Professor Fisher's proposal to Professor Nesson's--not only because he thinks Nesson's scheme is risky, but also, it seems, because Fisher's more closely matches his ideal. It's the better solution in part because it contemplates the better place we "could be."

Here's my question: What would it take for Congress seriously to consider adopting a system like Fisher's? Or to put it another way: Among the solutions now being proposed, which horse will we be able to ride the farthest?

***

Later (October 2): Ernie Miller writes to ask, "What would it take for Congress seriously to consider adopting a system like mine [PDF]?"

Later #2: Professor Edward Felten, who personally placed a hurdle before Berman's horse [PDF], cites his own testimony to argue that Charlie's proposal isn't only similarly risky, but also simply won't work:

In my view, the peer-to-peer authors have a natural advantage in this arms race, and they will be able to stay a step ahead of the copyright owners. Copyright owners will be forced either to give up on the strategy of narrowly targeted denial of service attacks, or to escalate to a more severe form of denial of service, such as one that crashes the target computer or jams completely its Internet connection. I understand that these more severe attacks are currently illegal, and would not be legalized by the Berman Bill, so such an escalation would not be possible within the law even if the Berman Bill is enacted. I conclude that the Berman Bill as written is unlikely to do copyright holders much good in the end.

Later #3: Frank Field: "What is really distressing about Charlie's current proposal is that it essentially says that government goes to the strongest. If you want your rights protected, you have to join the right posse--the right street gang. Or worse, you need to pay for protection...."

RIAA Okays Personal Use

In our dreams, anyway.

I'm late to the game, but here's Lawrence Solum, imagining the rhetorical stance the RIAA might take were it politically useful for the industry to recognize copynorms: "Share with your friends, not with strangers! [...] Make a compilation CD. Use AOL instant messenger to share MP3 files with your friends. We're cool with that. But giving away MP3 files by the hundreds and thousands--that's not flat."

(Link thanks to Ernie Miller, who has long argued [PDF] for a redefinition of copyright that asserts control not over the copying of a work, but rather, its public distribution.)

Classic

This interaction between Alex Macgillivray, Charlie  Nesson and Jonathan Zittrain at this summer's Internet Law Program--exploring Charlie's afore-mentioned proposal for combating copyright infringement with "hacktivism-in-reverse":

MACGILLIVRAY: So the atmospherics of this conversation often take the form of Professor Fisher proposing his plan, and you critiquing and you critiquing and bringing up your plan. So I wanted to really push you, at least a little bit, to positively state your plan before Professor Fisher.

NESSON: All right. I'm not against – Terry – Terry's – he'll speak for himself, but his vision of the future is one that takes into account the downsides of the present system, and the positive aspects that Internet could offer a world of much more open information. His problem, as far as I see it, is how he gets there, and that means giving up, to a large extent, on where the recording industry, the movie industry now is in terms of the kind of protections they have.

My particular interest at the moment is in techno-defense, specifically the ability of the recording to protect its material online by a combination of legal attacks using the tools that the courts and the Congress are capable of offering. Spoofing. If you go to KaZaA today and you try to download Justin Timberlake and the Black Eyed Peas "Where is the Love," which is hot, hot, hot, you will get nothing but spoofs, and you can try very hard. Actually, I won’t say absolutely nothing but spoofs. After 45 minutes of trying, I finally got a real one.

ZITTRAIN: Is it – that's leading to Charlie's law review article "Where is the 'Where is the Love'?"

Let the Music Pay IV

This is terrific: not only Ernie Miller (@ Pho), Derek Slater, and Alex Macgillivray but also Mark Lemley, David Post, Howard Knopf and Niels Schaumann and others (@ cyberprof) are weighing in Charlie Nesson's proposal for "hacktivism-in-reverse" as a preferred means of combating copyright infringement. Objections are legion--yet Charlie is sticking to his guns.

Below, excerpted bits from Derek, Alex and Charlie himself; later, more voices from the fray--provided I can procure permission to post.

Derek Slater: "What are the objections? The EFF raised many last year in response to the Berman bill:

'The proposed law amounts to government-sanctioned vigilantism -- copyright owners are given the power to ignore the law in pursuit of those that they decide are guilty. There is no warrant requirement, no trial, no prior notice to the targets, no due process, and very little recourse for innocent bystanders caught in the cross-fire.'

Sounds a heck of a lot like the current criticisms of the DMCA subpoena provision. Both put a great deal of power, without a lot of responsibility, in the hands of anyone who holds a copyright (which means effectively everyone). These hacktivist techniques will inevitably be used against the innocent, for purposes aside from stopping copyright infringement. Perhaps your privacy is more valuable than your computer system's resources, but I'm not sure that's enough to allow copyright holders to be vigilantes."

Alex Macgillivray: "Professor Nesson often proposes iphacktivism (though that's not what he calls it) as a reaction to the current music IP mess or Professor Fisher's plan, but when I got the chance to moderate a panel of Berkman luminaries in July, I tried to force him to propose it as a positive platform, to which Professor Fisher and Professor Zittrain could then react. The results are now up in a transcript at HLSNet."

Charlie Nesson:

[Here we are] five years [after Napster, with] iTunes and MusicMatch and songs for 99 cents or less, open to any artist with an indie label. At last the business model is changing. Is it time for the riot to end? Time to re-establish order with a reformed marketplace? Do you want iTunes and its PC variants to succeed? Or would you rather see the riot continue until desperation forces changes in the fundamental architecture of the net, or of the law? Is the idea to argue against any means of protecting the commercial value of an artist's work until the current system totally breaks?

For some the answer to this will be yes, the vision of a global tax and royalty system appearing to them to be the greener grass. This, I admit, is amazing to me. The very idea that those who have loved the net should be striving to establish a global government-run system of net administration complete with taxing power over Internet facilities and ability to say what creator should be paid what for what content is, to me, mind boggling. Cries for caution based on the Canadian experience seem to go unheeded. Why does this path seem more attractive than one which builds on the capacities of the net itself for self protection?

The service I describe is for artists. It offers them a limited protection during the initial crucial period of a new release. At the very least it is arguably legal. Why is first reaction to it to look for ways to condemn it rather than for ways to support its legality? No doubt this reaction is rooted in hostility to the historical greed of the labels, but times and business models are changing in just the directions those who have been calling for change have wanted. The interests with which this artist's protective self-help service might potentially interfere are (1) the infringing seeder's interest in being able illegally to serve the artist's content through his peer-to-peer client; this is not an interest that deserves the law's protection; (2) the infringing seeder's interest in serving up other content through his peer-to-peer client at the same time he is illegally serving up the artist's content; this is not a matter of any economic consequence to the seeder, thus causes him no damage, and moreover is easily and immediately remedied by him; (3) the would-be downloader's interest in illegally getting the artist's work from the seeder, not an interest the law should respect; (4) the would-be downloader's interest in getting other non-infringing works from the seeder during the period in which the seeder persists in illegally serving up the artist work; this seems insubstantial unless the seeder is the one and only source of the desired work on the p2p net; no one counts on getting a particular work from a particular p2p source.

John Palfrey, meanwhile, is tracking responses to Professor Fisher's proposed compulsory licensing scheme--now covered in McPaper, no less.

Playing with Traffic

Check out this Alexa graph comparing traffic at the EFF and RIAA websites for the last six months.

Let the Music Pay III

Charlie Nesson asks a provocative question in his virgin post to the Pho list this morning--in essence, why can't recording artists use hacktivist-style tools to combat copyright infringement? Or, as Charlie puts it:

Artists have been helpless to prevent their new releases from being illegally copied and freely shared on the peer-to-peer networks. All to often, even before the store release-date of a work, someone will rip a copy of the work and put it in the shared folder of a peer-to-peer client like KaZaA, thereby planting a seed which will rapidly and freely spread. Some artists feel that this process of rip-seed-share damages their ability to realize commercial value from their work, and that, to date, they have had no effective way to stop the damage.

Against this background, suppose the following service is offered to artists as a means to protect at least a portion of the commercial value of their new releases. Treat this service as hypothetical, although some companies may be offering some forms of it without talking much about it. The service:

• watches the peer-to-peer networks on behalf of the artist-client who wants to protect a new release to catch the first appearance of a copy of the new release illegally posted to an open network;
• finds it fast enough to enable the service to get in queue to download it before anyone else; 
• downloads the copy of the new release from the infringer in a manner that effectively competes with others trying to get it;
• at the same time causes a notice to be posted in the infringer's traffic window politely requesting the infringer to remove the work from the publicly shared folder.

Assume that as a consequence of this service those who try to download the work from the infringer's shared folder find it difficult or impossible to do so, and those who put the artist's work in their publicly shared folders are induced after a while to remove it. Assume that this service, applied to each new seed, is maintained up through the store release date and for a few weeks thereafter, then discontinued, and that during the period in which the service operates it either significantly slows the process of proliferation of free copies on the peer-to-peer networks or stifles such proliferation altogether, with the result that the artist can realize commercial benefit from the new release during the time period most crucial to its commercial value.

(a) Is this service legal? If not, what specifically makes it illegal? Who would sue whom?

(b) Irrespective of legality or illegality, is this service desirable, from the artist's viewpoint, from the viewpoint of the peer-to-peer networks, from the viewpoint of those who would like to preserve the integrity of the Internet as a relatively unregulated open-end-to-end environment? Is anyone damaged?

The idea in a nutshell: why not use what amounts to targeted denial-of-service attacks to make it more difficult for people to share copyrighted music files--providing recording artists with effective self-help while leaving peer-to-peer networks (and the Internet's current architecture) intact?

I find the concept compelling--in large part because it seems to work with the Internet, rather than against it. It's the lazy man's approach to the problem, with the incredibly powerful forces of convenience and inertia behind it. 

Yet instead we have the constant push for laws ridiculously out of step with current copynorms, laws that seek to mandate harmful tech changes, and politically challenging--some might say unfeasible--"solutions" that offend each and every interest group at the table.

Charlie has advanced this notion a few times before; most recently, at the Berkman Center's Internet Law Program at Stanford. So far, the idea has yet to take purchase--that is, it appears that few have explored it in depth. I wonder why. What are the objections? Or, as Charlie asks, who is damaged?

If you have the answer, or any part of it, I invite you to write and let me--and Charlie--know what it is.

[Obligatory disclaimer: I speak for myself, here, and not for the Berkman Center, EFF or Corante. So if you want to enter a dialogue, be aware that you're entering it with me.]

Update: LawMeme's Ernest Miller responds:

Charlie: (a) Is this service legal? If not, what specifically makes it illegal? Who would sue whom?

Ernie: Considering the means with which most filesharing software operates, in many cases, this may act as a denial-of-service attack. As such, it might constitute a federal crime under the cybercrime provisions (18 USC 1030(a)(4)?), it might also subject the perpetrator to a tort.

However, in the case of a tort, I don't think suing would be a good idea generally, because the perpetrator would then be subject to the copyright provisions. Still, if the attack was mistaken (the bots hit the wrong file name) you could be in trouble. I think it unlikely the government would get involved, but if enough mistakes were made, or the wrong targets hit (companies with copyright-infringing employees, for example), the government might get involved.

Let the Music Pay II

I received an email from Scott Matthews last night; he says he's eager to push this discussion into more productive space. To my view, Scott spent much of his Salon piece attacking a straw man--and unfortunately, pinning EFF's name to its forehead. But attacking a straw man does have the advantage of letting more people know what it is none of us want. And as Derek has been writing, we could all use a little more clarity. Especially if, underneath it all, we're actually working for the same thing: a reasonable and fair-minded alternative to the current situation--which is anything but rational and fair.

Clarification: the project I allude to below isn't a weblog discussion (though it will inevitably involve them!).

When Subpoena-Bots Attack

US Senator Sam Brownback (R-Kan.) [hyperlinks, mine]: "This revelation challenges the testimony of the RIAA at the hearing, and shows that the subpoena process includes no due process for ISP subscribers' accused of digital piracy. Due process, if it existed within the DMCA subpoena process, would provide accused pirates identified through the subpoena with the critical opportunity to rebut accusations of piracy and prevent the release of their identifying information to accusers."

Not long ago our Professor Felten made an important point about the DMCA subpoena process--specifically, its enormous potential for abuse. Said Ed:

Of course, big copyright owners aren't the only people allowed to use subpoena-bots. Virtually everything that anybody writes is copyrighted, so this subpoena power is available to every writer or artist, even down to the humblest newbie blogger. Want to know who that anonymous critic is? No problem; send your subpoena-bots after them.

Happy (Belated) Birthday

..to Packets, a brand new cyberlaw newsletter by the good people @ Stanford's Center for Internet & Society. Born only the day before yesterday, it's already looking pretty smart.