A Copyfighter’s Musings

Today, the Berkman Center and GartnerG2 hosted “Digital Media in Cyberspace: The Legislation and Business Effects“, a summit that grew out of the groups’ joint research. (That research, btw, is still going strong. When I can tell you, I’ll have more details on the exciting directions the project is about to take.)

I’m a bit exhausted and overwhelmed. There was a lot to digest, so it’ll take me some time to get it all out (aside: I wasn’t able to blog it because of a malfunctioning Palm and a no-attribution/off-the-record policy. However, Matt was there, scribing away, so expect to see something from him soon.)

For now, some brief notes:

Let me get the most unfortunate info out of the way: both Cary Sherman and Fritz Attaway did not attend because of Hurricane Isabel – they didn’t want to get stuck in Boston and then miss some meeting in DC. People did a good job of filling their shoes, so it wasn’t a horrible loss. But, it was a bit of a bummer.

Now, onto the good stuff: There was an amazing, diverse assortment of speakers, both in the audience and on stage. The whole event was very interactive, with plenty of time for questions, dialogue, and debate.  We got a lot on the table from a lot of different perspectives.

As the scenarios were laid out, I was both encouraged and surprised by the audience’s confusion and uncertainty.  Many were confused by the particulars of certain plans, particularly the public utility scenario which people had trouble connecting to the existing compulsory licenses in 17 USC 114 and ASCAP’s/BMI’s antitrust consent decrees.  I also had the feeling that there was an overall, pervasive uncertainty regarding what sort of business and legal regimes will work. Sure, people made arguments with strong conviction, but even then they were far better at saying what they didn’t like rather than what they did. For example, many people suggested that taking no legal action would be good, because the music industry should simply die out or suffer from some piracy like it always has or change its business model in some more comprehensive way – but the answer of precisely how these shifts would happen was fairly elusive.

Why was I surprised? Because I was in a room full of top tech and media biz execs.

Why was I encouraged? Because if no one’s made up their minds yet, that means that there’s still room for people to consider many possibilities. That’s a solid way to start a conference.

And, luckily, that theme – of a future open to many possibilities – ran throughout much of the day. It was in what I found to be the most interesting line of discussion, which revolved around defining what it would take to compete with free.  I hadn’t seen the full spectrum of opinions, from people in tech and media and law, in quite this way.  And I hadn’t expected that many, perhaps most, would say that you can compete with free to some extent.

Hearing all the views together reminded me that there’s still a lot left to try – a lot of room left for people to innovate and compete to figure out what’s best.  From a government compulsory regime, to a voluntary version of Fisher’s plan (which I’ll try to reflect on a bit more in the next few days, following up on Ernest’s post), to derivatives of the iTunes model, to the development of more robust DRM.

Although, most people didn’t seem to believe DRM was the answer. I didn’t go to the “breakout” session about an “effective DRM” scenario, but my sense from the speakers and the audience was that few really believed that DRM was the end all be all.

Nor did anyone really think that government intervention in the form of the CL regime was the right answer (neither was the public utility regime, which was dismissed a little too prematurely for my tastes). Professor Fisher’s CL proposal got a lot of play during the conference, and people took to it in varying degrees. But no one seemed to really be eager to go with it – it made everyone a little nervous.

So where did we end up? Well, right back where we started. As one of the speakers remarked, we were left with a wide range of choices that, potentially, could coexist together, some moreso than others.

Does that mean there’s no urgency to fix copyright? Of course there’s urgency. I still am incredibly worried about the situation quickly detiorating if the lawsuits don’t have any noticeable impact. I worry that we won’t seriously consider alternatives and that we’ll be stuck with this system or something much worse for far too long.

But I am encouraged to see that people are starting to seriously consider alternatives, that they are trying to come up with solutions, and that many future possibilities still exist. If anything, the RIAA’s lawsuits can be beneficial in that they’re getting these issues more out in the open. Not only is there debate in the biz and tech circles like I saw today at the conference, but there is debate in Washington and in the public at large.  With more people focusing on these issues, we have more ability to move forward.

Filed by Derek Slater at 8:26 pm under Big Ideas
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First day of school, so the idea of college-only digital music services is on my mind.

At first, there’s something quite appealing about these services. College students make up a large percentage of people on P2P services. If these services used CLs instead of something like iTunes, this would be an interesting way to try out the scheme on a lower level before using universally. In any case, it’d help stop infringement and get people the music they want – what more could we ask for, right?

A lot, according to Frank, and I generally agree. First, why should this be part of a university’s mission? Along with having Internet politics dominated by copyright, we now need copyright interests dominating university politics? This goes far beyond optionally supplying cable TV. While the universities are entering into this voluntarily, the fact that this is so removed from colleges’ typical purposes makes this seem more like blackmail than compromise. (Frank views this as part of a general trend towards universities’ seeing IP more like other copyright holders.)

Second, why the hell should my decision to go to School X mean that I have to give Y dollars to the RIAA? What about musicians not controlled by the RIAA who I typically purchase music from? Will it really be a full catalog of songs if such a thing does not exist in any current digital media service? What if I specifically don’t support the use of DRMed files and don’t want to fund them? Will people be able to opt out of the system? If so, how will colleges be able to keep the price down if they’re licensing unlimited music downloads and streams? Or is it not unlimited? Or is it some downloads and unlimited streams? Should the university just create some non-interactive radio stations at a lower rate, try to diversify their music offerings?

Unbelieveable that that discussion is even imaginable.

It is an “ugly solution” to one problem that’s likely to be an even uglier cause of many more. Yeah, it would fix a lot of things short term. But, long term, is this really where we want universities involved? If the cost of setting up one of these systems is really equal to colleges’ responding to DMCA requests, then I think we have far bigger fish to fry.

Filed by Derek Slater at 7:35 pm under Big Ideas
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For those of you who followed this, you’ll know why I can’t resist reposting this brief discussion from pho.  Really interesting technical debate.

Update: Just want to point to this article again, which cites the relevant caselaw that has sometimes said that it is distribution. See this article that counters those cases.

Filed by Derek Slater at 5:45 pm under Big Ideas
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Matt links to Cringely’s update to Snapster. He takes into consideration the basic fair use considerations and thinks he’s in the clear.

Cringely asserts that Snapster 2.0 is legal because it’s based on lending. But he’s actually talking about a pseudo-rental scheme, which isn’t legal because of the Record Rental Amendment of 1984. It tacked the following onto Section 109 of the copyright code (the part dealing with the “first sale doctrine”):

“Unless authorized by the owners of copyright in the sound recording… and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord … may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord … by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending.”

You ever wonder why we don’t have a music version of Blockbuster? This is it.  I think the words “indirect commercial advantage” pretty much kill Snapster 2.0.

(Note: post updated to correct name of 1984 act – had it as Sound Recording Amendments Act)

Filed by Derek Slater at 3:45 am under Big Ideas
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Ernest Miller (of Lawmeme) and Fred von Lohmann (of EFF) have joined the fun on pho. I’m reposting their messages here – they’re really insightful.

In discussions like these, I quickly realize my limits. I can’t immediately and conclusively say anything on the technicalities they bring up – I’m not a statistics whiz, so I can’t say for sure that sampling or censuses or audits will fix everything. For instance, I don’t know if Aaron Swartz’s recent point about power laws is right or wrong or can be compensated for in some way. Hopefully, I’ll be able to do some research on it later. Perhaps Professor Fisher will incorporate some commentary on these issues into his next draft.

For now, I can just enjoy their insights and try to think them out, slowly. I’m most interested in getting the proposal on the table, so that we can start trying to figure these problems out. There is no Answer, but I think we can get a lot closer. This open dialogue is, I hope, part of that process.

I will try to continually update this. If someone would like their comments taken down, I will do so – I’ve posted everyone’s comments so far.

Update: Plenty to digest here. I have updated the post to include more of the messages. I included most every email, although I did leave out some that reiterated points already made by others, or strayed from the basic topics. If you are reading or writing on pho and think I missed something, please write to me.

Filed by Derek Slater at 6:31 pm under Big Ideas
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1.  Lawrence Solum has a nice post on copynorms, summing up what might come of the RIAA’s recent tactics.

2. Apparently, MPEG-21 DRM stuff is moving along. Chuck Hamaker passed along the media release to the digital copyright list: “The vision of a multimedia framework took another giant leap forward with completion of Parts 5 and 6 of MPEG-21, the Rights Expression Language (REL) and its associated Rights Data Dictionary (RDD). The REL and the RDD, together form a powerful tool for managing the consumption rights of all forms of content.”

I can’t seem to find the actual media release. Here’s the page it should be, and here’s a white paper I dug up.

Filed by Derek Slater at 2:23 pm under Big Ideas
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They’re trying to keep children from getting porn on P2P. Interesting. So why did they call the bill: “To prohibit the distribution of peer-to-peer file trading software in interstate commerce“? (Go to HR 2885) (via boingboing and pho)

Given the news articles and press releases about the bill, it’s probably a mistake, but a pretty stupid one.

Filed by Derek Slater at 8:13 pm under Big Ideas
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Today I read “Fair use and Market Failure: Sony Revisited” by Glynn S Lunney, Jr (which I have not been able to find online. Please tell me if you find it elsewhere.). The author makes a great case for moving away from the market failure focused analysis of fair use and altering the fourth factor (potential impact on market) to make the copyright holder prove more harm. He also makes some more radical suggestions regarding how to change fair use. Not sure I agree with how he changes the test, but I do like his general argument.  For another argument of this sort, check out the Dissenting Opinion in that Texaco case I pointed out earlier today

Click here for my notes on the Lunney article.

Filed by Derek Slater at 5:20 pm under Big Ideas
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To figure this out, I’ll meditate on mutual funds while you grep for group ownership of sound recordings.

[added:] Although, it’d probably be better to start by figuring out some more pertinent issues, like the ones Frank points out. Cringely says, “Each share also carries the right to download backup or media-shifting copies for $0.05 per song or $0.50 per CD.” It does?  If you have to pay to make the back-up copy, that might change the fair use analysis.  Group ownership of a recording (even if it works like Cringely says it does) probably does not include making back-ups for each member of the group.  Having one copy does not mean you can make infinite simultaneous uses.

In fact, there’s an appeals case that’s quite applicable here: American Geophyiscal Union v. Texaco.  A Texaco scientist made personal copies of particular articles within a scientific journal purchased by Texaco. Everybody was working under the same roof, but it wasn’t a fair use.  The fact that Texaco is for-profit played a slight role compared to the court’s construal of the market impact – the journal was losing traditional potential licensing revenues.  Where have we heard that before? The MP3.com case.

There are certainly grounds to disagree with both cases. Sony‘s treatment of the potential market seems pretty different.  The Court scrutinized the copyright holder’s discussion of market damage. In these other cases, there wasn’t a heck of a lot of proof of damages and the courts didn’t really burden the copyright holders.  The difference, I suppose, is the first factor, the fact that it was commercial use, though the judge in MP3.com didn’t really emphasize this.(I think it’s time to read the fair use after Sony article that I found. I’ll have something on that a little later.)

One last question: regardless of whether Cringely’s scheme would work, do you think most people look at it the same way they look at Fisher’s scheme? If not, for the average person, which one’s the dream scheme and which one’s the plausible plan? 

Filed by Derek Slater at 1:11 am under Big Ideas
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This post can now be found here.

“Today I want to talk about contributory and vicarious liability. As I investigate the caselaw through Napster, I will discuss a few elements where Napster could and should be refined, including the changes Grokster incorporated….”

Filed by Derek Slater at 5:31 pm under Big Ideas
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Check it out.

Filed by Derek Slater at 8:11 pm under Big Ideas
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Madster lost. Go here. More to follow.

Bullet points: Posner says:”Subject to this qualification, building a library of taped programs was infringing because it was the equivalent of borrowing a copyrighted book from a public library, making a copy of it for one’s personal library, then returning the original to the public library. The third use, commercial-skipping, amounted to creating an unauthorized derivative work, see WGN Continental Broadcasting Co. v. United Video, Inc., 693 F.2d 622, 625 (7th Cir. 1982); Gilliam v. American Broadcasting Cos., 538 F.2d 14, 17-19, 23 (2d Cir. 1976); cf. Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1173 (7th Cir. 1997), namely a commercial-free copy that would reduce the copyright owner’s income from his original program, since “free” television programs are financed by the purchase of commercials by advertisers.”

Wow. I have never heard of those cases, but that statement flies in the face of the arguments made by ReplayTV and Clearplay (I think that’s the one that makes the movie-modifying DVD player). Wow.

Next, Posner rejects the RIAA’s argument that the Betamax defense does not apply as well as the argument that primary infringing uses overrides other non-infringing uses. And, the court “We therefore agree with Professor Goldstein that the Ninth Circuit erred in A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1020 (9th Cir. 2001), in suggesting that actual knowledge of specific infringing uses is a sufficient condition for deeming a facilitator a contributory infringer. 2 Paul Goldstein, Copyright

Filed by Derek Slater at 6:10 pm under Big Ideas
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Finally read “Spectrum Abundance and the Choice Between Private and Public Control” by Stuart Benjamin.  He’s pretty convincing, and, while not making me want to go to totally private control, does make me want a mixed policy at least at first.  Here are my notes, with limited commentary:

-Doesn’t seem to be arguing that spectrum commons won’t work, although he is skeptical.  He is arguing that a government created one would be less inefficient that providing large allotments to private owners, who would create a commons if it’s desired.

-Two points about commons, using spread spectrum. You need:
 Smarter devices – strong computational abilities, can transmit at low power and still get through.
 Cooperation gain – which means that devices act as retransmitters. Instead of having cell phone base stations installed throughout the city, you just have everyone’s device act as a mobile base station.

Problems: what if people choose to transmit at higher power? what if people do not share their devices (think of people turning off their shared folder on Napster – it was a drain on your machine’s resources)?
Solution: Standards.

Commons advocates arguments against private property allotments (according to him)
 1.  Transaction costs – you’d have to buy up so many slices of the spectrum to create privately a commons network.  And “holdout costs” – people waiting to sell to bid price up.  Benjamin’s response: these are not inherent in private ownership, just in dividing spectrum into small pieces.
 2.  Large allotments will not lead to spectrum commons. They won’t be able to make money, so they won’t do it.  Benjamin says: charge for access, or put fee on the device.  If we’re in a competitive market, and these commons are really more efficient, someone will create them. (Makes an interesting point. If commons can carry more users, you can charge less per user.)

Government v. Private Control – how do we evaluate it?
 1.  Smart engineers – need to have access to people most up on the tech, best access to info. (Note: he’s speaking as an economist.) Governments are controlled by constituencies, many of which will want to see spectrum fail. Private = competition and profit motive to get best info.
 2.  Putting the engineers to work – need people who are going to want to make the best choices, continually innovated.  Want to be able to make quick changes to adjust to new technology.  Profit motive is key here, government doesn’t have it.
 3.  Anticompetitive concentration of power – inefficient uses and pricing.  Benjamin wants restructuring of spectrum (opening more up to auction, including broadcast television’s and the military’s spectrum, approximating a “big bang” auction of all exiting rights) and then selling off enough to create many abundant networks. Not sure how he came up with his numbers here, or if the amount of abundant networks he thinks are sufficient will actually be so.  It would be unlikely that any one company would buy all spectrum, and you could set limits just in case, or maybe a common-carrier sort of approach.  Try to promote as much as healthy competition as possible. That’s good for reducing monopolies, but also for optimizing system capabilities.  Systems will differentiate, try out new technologies.    Also, less monopolies because interconnection will be desirable. Interesting idea: the only situtation where a monopolist is guaranteed is if you let the government handle everything. Then the question is, is that a beneficial monopoly? What happens when government has to work with private company and there’s rent-seeking?
  I think he makes a good point here – if you consider the history of the FCC, you know how screwed up government spectrum regulation has been.
 4.  Value of a Free Network
  a) Free of charge – Benjamin says you need to have a broader conception of cost. What about opportunity costs, the lost ability to create a different non-commons use? (What’s a specific use that won’t work?) Also, why should the government subsidize this?  All communications networks seek this sort of subsidy in some wya.
  b) Serve us as citizens and prevent filters – how is this really going to come about? why can’t this be created by private networks? Government will still be affected by private actors.  Are these arguments simple paternalism? (I agree with him as far as any theory that treats everyone as too dumb to like commons networks is probably a bad theory.  The concentration of power problems are more serious – it’s making sure that spectrum is distributed in a neutral fashion, in a truly competitive environment.)

Should government distribute in large bands?
 If abundant networks not most efficient, giving large bands will be bad because hard to disaggregate. Need some way to balance.

Filed by Derek Slater at 2:45 pm under Big Ideas
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Quick, ultimately silly question: would you allow legitimate infinite copyright in exchange for actual fair use rights and no exclusive right to derivatives?

This question came to mind after reading Matt’s interaction with one of the copyright-equals-my-Property types.  My first problem with any of these discussions is that I have no idea what “their property” actually means. 

Does that mean the expression itself?  All of it, at all times? So exact quoting is out of the question?

What about my property? You may own the music, but I own the CD.  Do you get to tell me how to use my property in my own home?  If you made the music, does that also mean you own my CD player?

That bit is a good rejoinder to people who try to use Locke to justify their moral reasoning.  But, the fact of the matter is, it doesn’t matter if the moral rights theory doesn’t come from Locke or any other major western philosophy that this country was built on. If people want to believe that, fine, and I’d like to spend minimal time convincing them otherwise.

Here’s how I look at things, from a moral rights perspective: Even if those moral rights should/do exist, one at least must concede that they don’t gel with other parts of American law, particularly free speech and private property rights (your music, but my cd).  Now, we could change American law to fit one’s intellectual property theory, but that’d be absurd.  So what we have to do is fudge it. 

From a moral rights perspective, finite copyrights is fudging it, but not necessarily bad. It’s too hard to balance the public interest, interests that exist in the rest of the law, with “all rights reserved”; because the law has trouble with laying out for ALL cases where only some rights should be reserved, we have to have an accompanying time of no rights reserved.  (I’m not advocating this justification, just imagining one from this position.)

You have to add a little bit for the copyright holder, trim a little bit off here for the public, shape it into something reasonable.  It’s not perfectly one theory or the other, but it’s what we have to do.

Then the question is, where do you balance it.  And, when people accept that there needs to be some balance, they see that the property interest they want most is the distribution and public performance rights.  For some others, it will include derivatives – but even for them, there’s a wide variation between how much coverage that should be.

The general point: I’m tired of the moral rights camp, but I’m also tired of arguing with them about their theories. If we can meet them half-way, that’d be pretty cool, because, right now, we have illegitimate infinite copyright, with ill-defined traditional contours of fair use and of the idea/expression dichotomy.  For the most part there is no balance.

Update: Matt responds – I don’t think we’re that far off, even though he thinks I’m laying into moral rights advocates. So I commented back.

Filed by Derek Slater at 2:36 pm under Big Ideas
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Verizon is basically screwed. 

At the end of the NY Times article, one of Zeropaid’s founders claims that P2P apps will keep getting better at protecting privacy, making this ruling irrelevant.  We’ve discussed anonymity on P2P networks briefly before (make sure to see the comments), and I’ve mentioned Blubster, which has an interesting bit of anonymizing.  Coincidentally, Zeropaid has a report on an app with even more privacy protections: Earthstation5.  That’s an impressive list of features (if they work). When will services like KaZaA be more like this?

Filed by Derek Slater at 3:17 pm under Big Ideas
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