A Copyfighter’s Musings

News.com has a nice recap; Donna, as usual, has everything you’ll need.  More assorted thoughts:

Declan notes that an appeal might be difficult and unlikely, and Cary Sherman plays down how significant this will be to the RIAA.  Somehow, I’m not quite convinced that there won’t be further legal action here.  Maybe rather than an appeal, the RIAA will try to get another forum, but, as Ernest argues, that might be tricky.

I wonder how this will change the RIAA’s strategy.  Sure, they could go through with John Doe suits, but the pace of such suits and subpoenas will not be nearly as fast.  Will that make the suits less of a deterrent for downloaders?  Is the RIAA really willing to let these suits drag on?  Are they willing to go through with suits against more 12 year olds?

Another interesting twist: if you can’t force Verizon to hand over the name, then you can’t force an anonymizing proxy to do it either, right? 

It’s worth reading all of the District Court’s opinion, too, but, if you don’t have time, just check out the RIAA’s brag page.  The key part of the lower court’s ruling was Bates’ view that 512(h) includes all service providers as defined in 512(k)(1)(B), which is sufficiently broad.  That’s the premise from which everything else followed, and that same reasoning is what the appeals court called “silly.”

Again, I find it fascinating when opinions contrast in this way – when they see the same issue clearly, unambiguously, but oppositely.  Judge Bates, just like Ginsburg, claims to stick to the statute’s text and go no further, yet their opinions are night and day. 

BTW, returning to the other side of my post below, Judge Bates, too, could be seen as interpreting the statute to achieve a particular result.  Bates is incredibly dismissive of Verizon’s arguments and goes out of his way to say that the subpoena process will actually be good for users.  

Maybe neither of them are being result-oriented, maybe both are, maybe one is and one isn’t – that’s not what I’m really getting at.  What interests me is how the timeline lines up with the shift in interpretations.  It’s just a correlation, but it’s interesting.  What does it mean for there to be a trend of the law beyond trends in analytic and interpretive methods?

This is a similar question to the one I confronted when Judge Bates’ ruling on the constitutional issues came down, followed by Grokster:

“[The day of the Grokster decision] began with Frank wondering whether Judge Bates understood or cared about how digitization has impacted copyright. I’ve often wondered if progress in the copyfight would require waiting for a generation of judges and politicians that grew up with widespread use of personal computers and the Internet.  We need judges who have enough technical understanding to tackle these tricky issues and who understand that the copyfight has broader implications for speech, privacy, and innovation.”

Filed by Derek Slater at 8:30 pm under Big Ideas
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Verizon is victorious.  Some quick thoughts here, and more above:

The first important thing to note is that the judgment was reached on statutory, not constitutional, grounds.  The latter were not discussed by the court, so they’re still live issues if the judgment were reversed en banc or by the Supreme Court.

Next, let’s remember (roughly) the timeline of this case.  The District Court made its judgment before the RIAA had started subpeonaing people, and the court seemed very unconcerned with the potential for abuse.  The appeals court rejected the stay before the RIAA had really gotten going. But at oral arguments, when the RIAA had started, the court seemed concerned.

That concern doesn’t translate into this judgment.  If anything, the potential for abusing the statute would probably be more present in their minds when considering the constitutional issues.  However, though Judge Ginsburg (the former Reagan nominee to the SC, right?) says that this judgment is all based on the reading of the statute, I get the feeling that there might be something else going on here. 

Maybe I’m getting that feeling just because I’m always suspicious of opinions that say that the text is unambiguous and, if you just follow the text strictly, the answer is obvious. Interpretations are rarely that easy. I agree with the court’s reading of the statute, but I’m not sure it’s as unambiguous as Ginsburg makes it out to be.  I’m going to have to go back and read the briefs and the district court’s opinion for comparison.

I’m not saying that this opinion is based on politics – it isn’t. But politics might have helped point in the right direction.

Finally, what happens next?  We should expect an appeal, but, in the meantime, that won’t do the RIAA much good.  This gives another push to Congress to step in.  If they open up 512 to debate, it will be on far different terms than when the statute was first passed.  I bet, if they open that up, it’ll be in the context of a broader rethinking of what they’re going to do to fix copyright’s current problems.  Those broader problems won’t necessarily be dealt with, but they’ll probably be considered and discussed, perhaps  in a more serious way than the P2P hearings that have been happening over the last several months.

Filed by Derek Slater at 12:22 pm under Big Ideas
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Aimster’s creator Johnny Deep, via his daughter Aimee, submitted this plea for help to Politech today.  Following up on my previous comments, I have sent in the following response to the list, urging people to NOT support the filing for cert.

Dear Declan and Aimee,

My name is Derek Slater – I’m a blogger and an affiliate at Harvard’s Berkman Center for Internet and Society.  I’d like to argue that people should NOT back Aimster’s writ, unless you have a death wish for the Sony doctrine and P2P  – Declan, feel free to repost on Politech.  I write the following with no offense intended to John or Aimee, but rather to evaluate the case.

The Aimster case’s facts form a bad foundation for a reevaluation of Sony in the P2P era. At best, Aimster is a somewhat centralized service, not wholly unlike Napster, and has thus far had trouble proving any non-infringing uses.  At worst, Aimster actively encouraged infringement on its fully centralized P2P service.  Its tutorial’s screenshots showed how to download copyright holder’s content specifically, and the centrally-controlled Club Aimster service helped automate acquisition of copyrighted works on Aimster.  The record industry alleges that John Deep has boasted that Aimster is “Napster squared.”

As my description suggests, Aimster’s exact functioning and conduct has been in dispute. However, we do know enough to say that Aimster probably has some level of centralization and thus control; both the District and Appeals Courts agreed on this much.  In turn, the Supreme Court is likely to treat Aimster more like Napster than Sony’s Betamax.

With that in mind, why give the Court a chance to write an overbroad opinion?  We’d be better off with the Court evaluating Grokster and Morpheus, a much more similar situation to Sony.  The Court doesn’t like protecting shady characters and, if the Court adopts my “worst case” interpretation, it will be happy to rule against Deep and anyone who seems remotely like him. The Court will treat all P2P as a tool of infringement, rather than just a tool.

Indeed, this is how both the lower courts viewed Aimster, generating colossally harmful rulings.  The District Court ridiculed Deep’s defenses and crafted, in direct conflict with Sony’s, a rule based on “principal” and intended uses.  The Appeals Court treated Aimster’s encryption as “willful blindness,” and, in an opinion rife with dicta, Judge Posner implicitly tried to rewrite Sony.  He argued that infringing and non-infringing uses must be balanced on a case-by-case basis and closed by stating: “Even when there are noninfringing uses of an Internet file-sharing service, moreover, if the infringing uses are substantial then to avoid liability as a contributory infringer the provider of the service must show that it would have been disproportionately costly for him to eliminate or at least reduce substantially the infringing uses.”  In effect, Posner created a technological redesign rule that could force Morpheus to accommodate filtering tools and would likely have forced Sony to impair copying using Betamaxes.  (Posner’s rule is not unlike a negligence standard, which I have critiqued elsewhere).

Having these opinions on the books is bad enough.  Let’s not put Sony on the line here by bringing Aimster’s case before the Supreme Court.  To give Sony, P2P, and Internet innovation their best chance to survive, we should wait to bring the best possible defendant before the Court.  If you must support this case, please do so only by focusing on the proper standard of review, as the EFF did its appeals amicus.

Sincerely,
Derek Slater

Filed by Derek Slater at 6:07 pm under Big Ideas
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1.  Do check out the commentary here and here regarding my posts on PSU/Napster.  Let me respond to a few piece here.

First, consider Adam’s suggestion that PSU/Napster will lead to more students complying with copyright law.  As Adam states, this is hardly an ideal solution.  Indeed, PSU/Napster does nothing to stop people from using P2P.  Because of its limited artist selection and computer platforms (Macs and the iPod, in particular), many students will have no use for this system.  Sure, it will give some a decent substitute, but many students (and, as a potential contributor, the university) will remain in legal jeapordy.

Next, I concede that my definition of the “university’s mission”, at least in my pho email, may be too narrow; however, I think you’d need to stretch even a sufficiently broad definition to make Napster/PSU fit.

Taking on the specifically cited counterexamples: first, college radio provides students with a way to learn important skills in a way that serves the student body as a whole.  And though I have my gripes about the disproportionate money schools spend on athletics, at least that, too, involves students.  PSU/Napster has no such student involvement.  Second, if PSU/Napster is meant to serve music majors, I think the students have a decent case that their money was poorly spent.  PSU’s Digital Music Library seems to be a narrowly targeted service, providing only the songs necessary for various classes.  Of course, this difference makes sense, because PSU/Napster wasn’t created to serve music majors – it was meant to try to decrease P2P infringement – and I doubt Graham Spanier and the RIAA will tell you any different.

Finally, cable TV has some significant differences.  No student can receive cable TV without someone laying down the cable lines first, and no one student can make the choice to do this – only the university can. And, once the university’s decided to do that, I can imagine that it is advantageous to simply provide one service for everybody, rather than adjust to individual demand.  On the contrary, students can get Napster without the university’s help.  Yes, they need the university to get the reduced rate, but that’s hardly comparable to laying the cable lines.

I think that points to a more generalizable difference between PSU/Napster and other college services.  In many instances, the college pools money and provides the service when the collective action would be too difficult otherwise.  I don’t think PSU/Napster fits that bill.

At the same time, even if I concede that other services are superfluous and thus that this is a difference in degree and not of kind, I think there’s still reason for serious concern.  Given that this doesn’t address the underlying problems; that it won’t eliminate P2P; that it doesn’t serve a good size chunk of the student population; and that, even for the population it does serve, it will be of little interest because of song choice and DRM constraints (who wants to “own” a tethered download?), I think the disconnect from the university’s academic mission becomes a greater problem.

Again, this is why I bring up PSU’s subsidizing Roxio. With other university services, the imperfect fit is overshadowed by other benefits.  Here, you’re locking the students into this one company’s service (including its restrictive contract), regardless of advancements by rival services, which students are very capable of taking advantage of themselves.  If Rhapsody comes out with a far superior service 2 months from now, why should PSU students have to continue to pay Roxio for an inferior product? Why do they need the college to choose Napster for them?  Want to bet that part of getting the cheaper subscription fee required signing a long term, exclusive deal?  Like I said in my pho letter: “Certainly, there are advantages to pooling the students’ resources to, presumably, receive a lower subscription fee.  At the same time, given how distant this is from the university’s mission, don’t these problems seem more severe?”

Similarly, that’s why I dislike the university’s current rhetoric.  I know PSU calls other things “free” and supports other for-profits.  But I don’t understand why that means the University has to try to market this to their students.  If this were a good fit, I doubt the University would try to hard-sell it this way.

2.  Mary notes that the negative reaction to PSU/Napster could be a sign of things to come for CLs. Her recommendation is spot on: “We need to think carefully about these objections and other aspects of CLs for the full Internet populace.”

Without a doubt, CLs have cross-subsidization problems which will inevitably upset some people.  But some problems are worse than others, and, in CLs, I think there are likely to be plenty of off-setting benefits.  Unlike in PSU/Napster, all musicians would be included in a CL, there’d be no DRM (and thus lessened compatibility problems), and (theoretically) anyone on any platform could use the service. 

These differences do not dispose of the issue. However, I think it’s reasonable to say that the services are different enough that, even though PSU/Napster isn’t getting a warm welcome, I doubt it’s ultimately a good predictor of how CLs will be treated.

For more on this subject, see Netanel’s paper (49-55).

Filed by Derek Slater at 5:14 pm under Big Ideas
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Breaking news at EFF. More later. From FCC:

FCC Adopts Anti-Piracy Protection For Digital TV
Ruling (PDF)
News Release: Word | Acrobat
Powell Press Statement: Word | Acrobat
Abernathy Statement: Word | Acrobat
Copps Statement: Word | Acrobat
Adelstein Statement: Word | Acrobat

Filed by Derek Slater at 5:45 pm under Big Ideas
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See here.

Not a whole lot of change. Just two additional exemptions: obsolete formats for computer programs and video games (a narrow version of the Internet Archive’s proposal) and lack of e-books for the disabled.  Also, the censorware and damaged “dongle” exemptions have been narrowed a little.

Ernest has got the linkage going. I hope to write some longer analysis later, too, but for now I don’t think I can get through all the docs. Here are my notes as I read the short version and a quick skim of the longer recommendation (198 pages!!!) – I will read them both more closely later:

“These commenters [proposing an exemption for public domain works] have overlooked that if a work that is entirely in the public domain is protected by an access control measure, the prohibition on circumvention will not be applicable. Therefore, no exemption is needed.”  The good news: nice clarification about public domain works. I had always thought this was obvious given the language of the statute, but many have asked for clarification just in case. The bad news: this doesn’t affect public domain works bundled with copyrighted works. The weird news: The commenters didn’t “overlook” how public domain works aren’t protected. The EFF specifically advocated that position – they just wanted clarification.

The Register rejects an exemption for obsolete or damaged audiovisual works because “the proponents have not made the case with respect to fragility of DVDs, nor have they shown that the making of backup copies of DVDs is a noninfringing use.” Sigh on both accounts. What more do we have to prove about DVD rot? And now courts and legislators can cite to this for the proposition that backups are infringing, even though the contrary has been asserted.

After the accepted exemptions, the Register’s first positive response to a comment is to Ernest‘s. While the Register agrees that quotation is important, it sides with Reimerdes in stating that all he’s asking for is mere convenience.  Shockingly, the Register urges people to use the analog hole and redigitization to make their fair use. Nevermind Macrovision for the moment – can you believe the Register actually advocated creating unencrypted copies using the analog hole?  The Register also completely dodged Ernest’s argument about CSS not being an access control.

The Register totally rejects arguments about region coding.  Though even DVD-CCA and MPAA weren’t clear about whether multiregion players are circumvention devices, the Register asserted that they are in footnote 213 of the longer recommendation.

The Register also does not agree that “space-shifting” is necessarily a non-infringing uses and thus works “tethered” to certain devices do not require an exemption.  The Register also concludes that allowing the creation of a Linux-based DVD player will lead to increased piracy.  Apparently, if people need a DVD player, they just shouldn’t use Linux. We can all say goodbye to interop.

What’s really bizarre is that the Register says, “The purpose of tethering is to limit subsequent redistribution.” If that’s the case, then that sounds more like a copy-control, not an access control. The point of an access control tethering has more to do with limiting what devices you can use to play/access the copy, not whether you can copy and redistribute its contents.

There’s an interesting if confusing discussion of copy controls on CDs that sometimes act like access controls becaues of malfunctions – see the EFF’s comment.  First, the Register agrees that the copy-protection in these CDs is not an access control – that means you can circumvent some copy-protected CDs.  However, in cases that do not involve malfunction, like dual session CDs as merged access and copy controls, the Register didn’t find sufficient harmful effects.

The Register states that webcaster’s don’t need an exemption because they already have one in 17 USC 112(e)(8).  Webcasters didn’t want to have to ask for non-encrypted versions first, and the Register balked.

Really interesting note on the Lexmark v. Static Control case. The Register says, “The Register concludes that an existing exemption in section 1201(f)addresses the concerns of remanufacturers, making an exemption under section 1201(a)(1)(D) unnecessary.” Because there’s already an exemption, the Register won’t go any further and will simply let the courts sort it out.  The Register used similar reasoning when refusing to grant further exemptions for security testing and encryption research.

Later on, “It would also appear that to the extent that such a file format is unreadable, and to the extent that the file format is the product of a “computer program,” one may be able to utilize the reverse engineering exemption in

Read the editorial here. Then, check out Apple’s MPEG-4 page to see what a contradiction the AAC/Fairplay combo is.  Key quote: “No longer will content providers need to encode, host, and store media in multiple formats. Instead, a single format can reach a broad audience equipped with playback devices from not one, but a multitude of companies across a wide array of platforms.”

Where’s the multitude of devices for iTunes songs?  What’s the good of an open standard if everyone creates their own proprietary substandard?

In a sense, are the players – Apple, Microsoft together with the other music stores – acting like we’re at the “early adopter” phase? They’re laying the foundations by trying to win a standards battle. Apple is trying to win through restrictions and tie-ins to the iPod; the iPod is not affordable for most people, but that usually wouldn’t matter to early adopters, because they are generally more wealthy. And so long as the music industry is forcing them to use DRM, Apple might as well take advantage of it.

The thing is, MP3 and P2P have in a sense already pushed us past that early adopter phase. People have already chosen a format. Apple has to not only beat WMA, but also MP3.

So, I think the move is risky if Apple hopes to reach a wide audience. Short-term, it might work. But long term, I’m not so sure if consumers will put up with this format lock-in.  Any model that tries to make the digital world look like the analog world in this way is regressive, and, eventually, regressive models should die out in favor of progressive ones.

Perhaps Apple isn’t really seeking a wide-audience. Maybe they just want to get slightly past the 3-4 percent of the computer market they already control.  In that case, making people who buy from the iTunes Store also use expensive Apple hardware might be just fine, because all they need to capture are the wealthiest buyers.  In that case, iTunes itself is really just a blip on the digital music radar – it won’t be a significant music store.

Filed by Derek Slater at 11:35 am under Big Ideas
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About a year and a half ago, I celebrated that the broadcast flag had no movement in Congress. One week later, they slipped it on over to the FCC. Since then, I have been optimistic that the popular opposition would be enough for the even the FCC to see that this wasn’t something worth getting involved in. Seeing Senator Brownback and others oppose this sort of copyright regulation made me hopeful that the tide is turning.

Sadly, it’s not – at least, that’s what the feeling from the FCC is.  We might see a tech mandate here, crippling innovation, fair use, open source, and the future of digital television.

Please, go to the EFF Action Center and help burn the broadcast flag down to the ground.

I hope to write more about this later in the week. Many people have beat me to the punch – for more info, please see:

Donna, one and two; Frank; Ernest.

Once again, I ask: how can we avoid this in the future?  How do we make Congress listen to the technologists?  Why are we letting the FCC make this decision?  How do we make the public interest heard in the legislative arena?

Filed by Derek Slater at 3:16 pm under Big Ideas
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PR here; News.com article here; much more at Apple’s site.

The lowdown: same usage rights, still using AAC/Fairplay, bigger catalog including indy labels, tie-ins to AOL’s service, free iTunes jukebox software for Windows that is compatible with the iPod, audiobooks offerings, a new kids account, more exclusive content. Only works for Win XP and 2k.

Quick takes: As much as I hate the growing hegemony of WMA in music services, using AAC and FairPlay might not be a great move for Apple at this point because they’re not well supported. You can only use your AAC/Fairplay files on an iPod, and iPods can’t play WMA files that you download from any of the services. Who wants to put up with those compatibilty issues? How can Apple proclaim proudly, “And iPod is the only portable digital music player that supports the AAC format used by the iTunes Music Store for Mac and Windows.” That’s a bug, not a feature.

Also, what’s with this tie-in to AOL? How will that affect AOL’s MusicNet?

Filed by Derek Slater at 5:40 pm under Big Ideas
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“Trusted Computing: Promise and Risk” by Seth Schoen

“Meditations on Trusted Computing” by Fred von Lohmann

Check it out – will have comments later.  News.com reports here (via Donna).

Filed by Derek Slater at 4:47 pm under Big Ideas
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Some brief responses to Donna’s/Charlie Nesson’s questions:

What are the objections? The EFF raised many last year in response to the Berman bill.  Read it for the specific criticisms – here’s the overall point:

“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.

I suppose these measures wouldn’t affect e2e, but they would still have grave consequences for the Internet. As the EFF’s comments note, innocent people on shared connections would be impacted, while ISPs would have to deal with this added hassle.

A broader point about harming ISPs:  Put aside, for the moment, arguments about whether the DMCA safe harbors are too strong or too weak. Remember that there used to be a time when we were trying to figure out how to reduce the burdens of secondary parties. To me, that perspective still makes sense – copyright shouldn’t dominate technology creation and Internet politics, just as it shouldn’t dominate the university. So, is that point now incorrect to the extent that sanctioning DoS attacks makes sense?

[update – footnote: I don’t mean to suggest that Professor Nesson’s talking about self-help with no potential for liability for copyright holders if they mess up (the Berman bill didn’t really have that). Rather, I’m not sure liability for messing up is enough to make up for the collateral damage and the potential for harming innocents. Without any due process, I don’t trust copyright holders to police fairly. And I doubt that many people innocently caught in the crossfire will be able to fight back.]

Filed by Derek Slater at 2:54 pm under Big Ideas
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One feature of Professor Fisher’s plan that I find especially intriguing is the removal of restrictions on derivative works. Sure, derivative makers would have to give a portion of their revenue to the original work’s creator, but they wouldn’t have to seek permission, go to court, or extensively negotiate license fees.

Today, to achieve the arguably good aim of incentivizing creators by allowing them to capture further value from their original creations, we consequently silence the expression of others.  In a time when technology is breaking down the distinction between customer and creator, copyright law’s exclusive right to make derivative seems out of step.  We can all be making homemade remixes, mash-ups, and collages, drawing on and contributing to a creative commons; yet, most of us cannot do so easily, cheaply, and legally. 

Why are only parodies – whatever those are – allowed? Why not satires? Why not derivatives that only use a small portion of the original? Why should a copyright holder get added revenue if the derivative would not cause any economic damage? And why should all creators be left vulnerable to lawsuits adjudicated under the uncertainty of fair use?

Fisher’s proposal would sweep all this away in one-shot. [Footnote: Of course, one can imagine lawsuits over whether someone reported the right percentage taken from an original.]  While that solution may seem like a clean and simple way of eliminating the problems inherent in the derivatives right, it’s a long way from where we are right now.

I’m interested in researching public policy solutions that could be more readily applied within the current confines of copyright. Some ideas:

• Could a revamping of fair use be sufficient?  Or, will any fair use balancing test inevitably lead to sustantial uncertainty that significantly chills speech?
  
• How about Kozinski’s plan to move away from fair use and towards a restructuring of damages without injunctions? You’ll still get dragged to court, but at least you won’t be totally enjoined. Is estimating damages still too uncertain a standard?
  
• Could any form of compulsory licensing work? We already have it for cover songs. Are the transaction costs prohibitive? How would we adapt compulsories to sampling in different mediums and to account for the degree of sampling/remixing/remaking/reimagining done?  Do we create mechanisms to separate a “clean films” company from a Vicki Bennett from a fan fiction writer? How?

I’m sure there are papers on this somewhere, so I’m going to start looking. If you can suggest anything, please send them to me.

Filed by Derek Slater at 3:57 pm under Big Ideas
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Go here – I can’t think of anyone better than Donna to do this job.

Filed by Derek Slater at 6:27 pm under Big Ideas
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We just got one.  This is the perfect example to use in Congressional hearings about the subpoena provision – it’s even better than the previous notice and takedown foul ups.

Let’s say 1 out of every 261 subpoenas is erroneous. That’s small as a percentage, but, extrapolated over an entire population of copyright holders (which we all are to some degree), the potential total errors would be astonishing.

Filed by Derek Slater at 3:40 pm under Big Ideas
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As I said before, I want to talk a bit more about Scott Matthews’ column.  I want to talk specifically about the article, but I also want to use it to frame broader aspects of the CL debate.  Though this time I will focus on several things I didn’t like about the article and his way of treating CLs, I don’t mean this to diminish anything that I said in my previous post.

To me, Matthews’ column has two threads that, while linked in some ways, should have been treated separately.  One is that the EFF’s campaign has not clearly stated its purposes and has said certain things that don’t match up with past principles.  Another is why CLs in particular are not consistent with the EFF’s principles and thus the EFF should provide far more extensive details before proposing them.

The first point, I think, is a far more important and legitimate point. Indeed, given Scott’s follow-up letter, I think he also meant this to be his more important point, but it got buried under a lengthy, specific criticisms of CLs.

Certainly, CLs could invade privacy, and I suppose the free speech limitations Matthews imagines are possible [Footnote: However, I generally agree with Aaron Mandel’s criticism and Jason Schultz’s rebuttal of Matthews’ argument here]. What strikes me is the repeated declaration that these problems are “inevitable” – as if the EFF were proposing and supporting systems that will lead to these negative consequences. Or that the EFF should not be proposing any system because, no matter how privacy protective and free speech supportive the proposal is, Congress will inevitably tweak it to have these negative consequences.

Blaming the EFF for what Congress might do is wholly unfair. Surely, were Congress to consider a system with the free speech or privacy implications that Matthews outlines, the EFF would oppose it. Matthews wrongly construes these implications as “inevitable” and thus inherent in CLs themselves, when, in truth, one can oppose his speculative implementation of CLs without opposing CLs in general. Should the EFF also be blamed for the enactment and continuing support for the DMCA’s subpoena provision because that was an “inevitability” of defending P2P providers?

Matthews desire for details has more merit, but part of it comes from the wrong angle. The tone and substance in both his original article and the follow-up implies that the EFF shouldn’t even come forward with this plan until they have all the nitty-gritty details worked out. (Footnote: the first piece seems to imply that these details do not exist, stating conclusively: “The EFF and aligned academics blunder when they trade privacy and free speech for piracy and free music.” But, given Matthews’ follow-up, I doubt he actually believed that.)

I don’t think the EFF needs to have everything exhaustively figured out. First, several academics are working on different versions of this policy proposal, and it is reasonable to believe that the EFF would be content with any one of them. Second, while these proposals differ on the specifics, all of them propose some way to deal with the problems Matthews and others have cited. The EFF doesn’t need to, at present, exhaustively prove that a particular version is sufficiently protective. Third, the EFF can reasonably want to negotiate, both with private groups and in Congress, about the details – what they’re pushing is an overall framework to get it started.

Finally, there are practical advantages to staying away from the details right now. As SethF points out, the complexities of the copyfight do not “fit in a press release.” To succeed, the EFF must get the general public on board and that often means oversimplifying.

It also means, to some extent, the EFF has to use populism to its advantage. As Professor Solum has discussed, current “copynorms” treat file-sharing as perfectly legit and the RIAA’s lawsuits and proscription of file-sharing as unfair. Congress’ or the RIAA’s telling people that their norms must be corrected by law seems, to some, paternalistic.  Thus, the EFF speaks of this copyfight as “RIAA v. The People”, and condemns the RIAA lawsuits in very general terms as an attack on “ordinary Americans” and “the public.” The voices of 60 million American file-sharers should not be ignored. Broad condemnations and simple policy statements work best here, for the rhetoric gets to the heart of the matter for many people – it provokes sufficient emotional response to get the petition signatures the EFF needs.

But it comes at some cost. If the EFF exclusively speaks in terms of populism, they’ll lose many who see that as an invalid or incomplete principle for change. Even though the EFF isn’t supporting CLs simply because of populist sentiments, the EFF’s rhetoric makes it seem that way to some. Or, at the very least, simplifying policy statements to appeal to people on this basis alone renders them confusing or overbroad. For instance, I took issue with the broad language of the petition because it seemed to say that all lawsuits are condemnable. (Footnote: whether you discuss this in terms of  “bad faith” or not is beside the point. One could call it disingenous, or misleading, or unprincipled, or inconsistent, [added:] or perhaps just unclear. In any case, many will believe that the EFF is acting improperly).

Here’s where Scott Matthews’ first thread – that the EFF’s campaign has not clearly stated its purposes and has said certain things that don’t match up with past principles – does matter, as I discussed in my other post.  The broader questions – what is the EFF’s goal, what would they be content with, and what principles underlie those choices – will remain important.  The oversimplifying and populist sentiments can help get this campaign off the ground, but I doubt it’s sufficient to convince anyone of the need for change.

And, to some extent, providing and discussing more (not necessarily all) specific details remains important, too; like I said, that criticism has some merit. If the EFF will only be content with a CL, it is useful to know what they mean by a CL and to start educating people more about what that entails specifically. If the EFF is content with a range of solutions, defining what sort of things any solution would need to do would be helpful. However, providing all the nitty-gritty specifics of each plan is a lesser concern for the immediate future.

I do want to stress, though, that there are certain discussions of details that I specifically feel do not need to occur.

For instance, if we’re discussing how CLs can be made more privacy protective, and someone assumes that the neither the government nor a private organization can be trusted with this information in any way, then there’s really no discussion about details to be had. No matter what legal and technical solutions anyone proposes, the other person won’t be content.  I’m not saying that it’s wholly unreasonable to reject CLs because you don’t trust the government collecting this sort of information, but it is unreasonable to have a discussion about the details of CLs if you’re opposed to them on absolute terms.

I also would like to caution against picking apart the CLs simply to find holes. Saying, “see, this has privacy implications” is important, but I’m not sure it’s grounds for rejecting CLs and opposing all those who support it. It’s grounds for nervousness, it’s grounds for asking and looking for a solution. But dialogue will be ruined if we focus solely on what we don’t like about any given proposal.

The sentiment of Ernest’s final paragraph in his “public domain lottery” post exemplifies what I see as a better way of starting a dialogue:

“[E]ven if the result [of some part of a proposal] is perverse, it might not be all that bad in the greater scheme of things. The benefits of a particular policy might outweigh its flaws. It might even be possible to rework the law (or social practice) so that such scenarios would be less likely. Still, it is the job of everyone in this debate over compulsory licensing to look deeply at the proposals and consider what the various ramifications will be, not simply how do we collect and distribute the money.”

Filed by Derek Slater at 3:44 pm under Big Ideas
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