A Copyfighter’s Musings

Go there, please.  I can’t wait to read everyone’s notes and all the papers.  So much to read, and the Spectrum conference hasn’t even started yet!

Filed by Derek Slater at 8:27 pm under Big Ideas
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At the Berkeley DRM conference, Lon Sobel presented this proposed alteration of copyright to make the ISP a “digital retailer.”  Well, it’s not really an alteration of copyright. It’s a business model with a very weak statute attached to it.  Here’s the legislative part of it:

“Copyright owners would be obligated, by statute, to permit the copying and redistribution of their works…. [F]or watermarked and fingerprinted works, ISPs would be obligated, by statute, to pay the royalty charged by each work’s copyright owner. This proposal amounts to a statutory license (because it authorizes copying and redistribution of copyrighted works, without negotiated licenses from copyright owners). But it’s a two-edged statutory license: it authorizes the use of copyrighted works, but also requires ISPs to pay royalties at whatever rates are set by copyright owners.”

So, what’s going to make the copyright holders license their works?  Sobel indicates at the end of the proposal that he doesn’t mind that copyright holders will have no impetus to license their works.

Nor does he give a lot of firm numbers on how much each download would likely cost; I’d like to see some sort of projections.

Dan Gillmor has significantly more scathing remarks here (that post has all of his Berkeley DRM conference notes). He points out that having ISPs track what we read/hear/watch is more than just a small invasion of privacy.  Also, he notes: “Given that in a broadband world there will be just a couple of ISPs — namely the cable and phone companies, given the way the government is giving them absolute rights to control content on their pipes — do you suppose your friendly cable and phone monopoly will not choose to charge you substantial extra money?”  What occurs to me after reading that is, what about wireless?  What happens if I’m sharing someone’s connection? (Note: as someone has mentioned, this is also a problem with Professor Fisher’s plan, although he states that tax revenue could come from places other than ISPs if necessary.)

I would also like to point out that Sobel makes some incorrect assessments of Fisher’s plan as far as I understand it.  He writes, “[Fisher’s] “Tax and Royalty System” does not seem to contemplate the creation of new versions; it would simply authorize copying and redistribution. This means the “Tax and Royalty System” protects copyrights somewhat more than the [Netanel’s] “Noncommercial Use Levy,” because the “Tax and Royalty System” leaves more control in the hands of copyright owners, namely, the right to license the creation of new versions of their works, on terms agreed to in private negotiations.”

That is bogus - Fisher says that we would ditch copyright after the implementation of his plan. You can make all the derivative works you want.

Other stuff that’s been interesting:

Dan Gillmor notes IBM’s Bob Blakley discussing some of the negatives for producers’ using DRM. Gillmor scribes: “DRM can raise inventory costs, he says. Example: controls by country. Mass customization isn’t perfect, either, he says. Raises costs and can actually encourage piracy. It can add life-cycle costs when things fail, because users will call” (Gillmor’s notes, not necessarily Blakley’s words).

I’ve always heard about how price discrimination via DRM will be so great for producers and how private ordering isn’t as great as we might think (at least, that’s what I think this article from Yochai Benkler is saying).  I’ve never heard about using DRM to price discriminate could be bad for producers.

Also note the interesting conversation by someone from Microsoft, Dave Farber, and Lucky Green about trusted computing. Those three really do represent the spectrum.

Filed by Derek Slater at 3:08 pm under Big Ideas
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Lawmeme pointed me to the new DMCA reply comments.

Filed by Derek Slater at 7:30 pm under General news
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A few days ago, I referred to the work of economists Michelle Boldrin and David K. Levine.  They run the “The Intellectual Property” page, which is a really cool site that applies economics and game theory to intellectual property to explain why we don’t really need “intellectual monopoly.”   In their forthcoming book, they write:

“[W]hen we are discussing the elimination of intellectual monopoly, we mean the elimination of patent and copyright except for the right of sale. We also mean that the government would not enforce downstream licensing agreements. That is, shrink-wrap, or other agreements about how intellectual property is to be used could not be enforced in the courts.”

 

Check out the first chapter and the second.

(via Larry Solum’s Legal Theory blog.  Larry is one of the greatest people I’ve ever interviewed, and he wrote a great piece about Eldred.)

Filed by Derek Slater at 7:25 pm under Big Ideas
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Professor Felten points to Declan’s article regarding the House’s hearing on universities and P2P piracy.  This part caught my eye:

“Rep. John Conyers, D-Mich., the senior Democrat on the full Judiciary Committee, warned that universities should take aggressive measures to police their own networks lest Congress do it for them in a much more invasive way. ‘There are people (on this committee) willing to take action, and it’ll probably go over the line in terms of privacy concerns,’ he said.”

I suppose that I’d rather have this university rather than the government do the monitoring.  Then again, it all depends on what sort of oversight would be available.  What exactly would the university get to log?  How would they watch?   

And, more broadly: I wonder what “action” committee members are willing to take.

Filed by Derek Slater at 7:11 pm under General news
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The recent article ”Digital Wrongs” made me think of Declan’s piece “Debunking DMCA Myths.”

Declan brought up a lot of good issues in that article. On the one hand, the article showed that maybe there’s less to worry about when it comes to the DMCA and scientific research.  More importantly (I think) it showed how fine a line there is between creating awareness and activism,  and fear mongering.

What’s the connection between the two articles?  Well, when I read Hank Barry talk about not creating “a new technology that would allow music streaming for cell phones,” I wonder if anyone actually buys it.  I wonder if anyone says “that poor venture capitalist!” 

Does it generate sympathy or indifference?

I also wonder if people see a difference between what Barry’s saying and what Greg Ballard of SonicBlue is saying.  SonicBlue is actually losing money - it’s vulnerable, and many other companies like it are, too.  With Barry, it’s a “chilling effect” - but it’s not an actual commercial death sentence.  Actually getting sued by the MPAA is an incredibly difficult battle to fight let alone win, given cash constraints.  Barry’s not in that position yet.

One could argue that the actual, perceivable effects and the chilling effects must be seen together.  The chilling effects certainly are important.

But, rhetorically, I don’t think they’re equivalent.  Rhetorically, I think talking about chilling effects in the abstract is not as effective.  Especially when examples  of chilling effects are used to excess, they lose legitimacy.  Moreover, when you try to imply that there was a serious chilling effect, but nothing bad came of it, people are only going to say, “So, what the heck are you complaining about?”  It’s going to come off as fear mongering, rather than raising awareness.

Another point that came into my head: At the end of Declan’s article on scientific research and the DMCA, he notes, “Any type of publishing carries risks, including possible suits for libel, copyright infringement or invasion of privacy. Security research is no different.”

That’s definitely a good point.  Scientific researchers need to take responsibilty for following the law, just like anyone else   If they do publish something that they know violates the law, they accept the risks involved.

But, we still can’t overlook the fact that some people who aren’t breaking the law can’t afford to prove it in court.  That problem doesn’t just go away because “any type of publishing carries risks.” It doesn’t make it any better. (I’m not saying Declan meant this, but one could read that sentence as trying to shrug off the chilling effects of the DMCA.)

Filed by Derek Slater at 7:03 pm under Legal
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Siva links to “Creation Myths: Does innovation require intellectual property rights?” over at Reason.  It’s all economics, but it’s pretty well spelled out.  You can find the paper that the article talk about here.

Ernie links to an in-depth post about Creative Commons licensing and some of its potential legal problems.

Dave Winer has been interviewed about the new Blogs-at-Harvard initiative over at News.com.

Filed by Derek Slater at 10:46 am under General news
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About a month ago, Microsoft announed its Windows Media DRM toolkit.  Now, they’ve announced their Rights Management Services for enterprises that want to protect documents.  I’m quite interested ot see what more Seth has to say about this.

Filed by Derek Slater at 10:22 am under General news
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The Berkeley DRM conference has updated its resources page.  Many, many tasty articles are there for your consumption.

Filed by Derek Slater at 4:17 pm under General news
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I’m pretty confused by Declan McCullagh’s newest column.  Here’s the jist (emphasis added):

“[W]hat’s happening right now is lobbyists from the entertainment industry are seeking to regulate computer technology in hopes of limiting copying, and academics and left-leaning groups are seeking to regulate digital rights management technology in hopes of mandating ‘fair use.’ Both sides hope to enlist Congress–raising the very real possibility of interminable political battles that could shape the future of digital media more than the technology itself. Both sides are wrong. It was a mistake for the movie studios and the record labels to start this political tussle in the mid-1990s, and it’s a mistake to follow their lead.”

Here’s the thing though: Declan doesn’t mention ANY legislation that would “mandate” fair use.  All he talks about are the Wyden and Boucher proposals to label copy-protected materials and devices that enable DRM.  That’s not mandating fair use. 

So, what exactly is Declan referring to?  Proposals floated in academia for legalizing non-commercial file sharing?  Those proposals aren’t really on Congress’ radar.  Declan is looking at two bills and calling that a rush from the consumer side to start regulating.  I think he’s overreacting just a tad.

Sure, Declan’s got a point.  If the market can sort it out, that’s all well and good - that goes for fair use and labelling.  Yes, politicians often do more harm than good by intervening in the economy and, Declan, you can cite a litany of economists who will argue that convincingly. 

But it’s wrong to stop there.   I bet you can also find economists who discuss how lack of information can hinder the market.  That’s the idea behind labelling - some market failure would occur if consumers did not know or were mislead about what they were buying.  Every economics textbook I have ever read and every economics class I’ve ever been in has noted this.  Maybe I haven’t read enough.  But, I’d like to believe that there’s some merit to labelling, given that we have these sorts of regulations with false advertising; we have health warnings on various products.  Is Declan saying we should throw all that out, too?  Or, is he arguing that labelling consumer electronics and media devices is somehow different?  If he is arguing that, he doesn’t do it here.

Moreover, I dislike how Declan completely dismisses any feeling that a no-DMCA+free-market strategy won’t be good enough.  There’s reason to believe, given the problems both consumers and content creators are having, that a more radical solution might be necessary. This is not a problem that started yesterday - it’s been going on for awhile, and I think it’s reasonable for people to start getting nervous.

And, the thing that gets me, is that even the free marketeers and the libertarians get this.  Declan cites Adam Thierer of Cato saying, “We should only resort to government solutions as a last resort, when we absolutely have to.”  So, if that’s the case, it’s not an issue of whether government should regulate or not.  The question is when.   I would be happier with Declan’s logic if he noted what WOULD be an appropriate time to regulate.  What does “last resort” mean to him?  If he’s just going to say “regulation is always bad”, frankly, I think that’s a bit simplistic.

Filed by Derek Slater at 11:03 am under General news
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Brad Hill reported on the pho list about a speech Professor Lessig gave at Princeton tonight.  Brad notes (hyperlinks, mine):

“The one point that made me sit up straight was Lessig’s offhand revelation, in answer to a question about his recent Op-Ed piece, that in two weeks he might be able to announce a Congressional sponsor for legislative enactment of his annual copyright renewal idea.”

Wow. 

Mr. Pawlo, care to respond?

Filed by Derek Slater at 12:53 am under General news
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[Updated: 2-21-03, 1:47 AM]

I’ve been reflecting on how I hope I can actually study this stuff for a living some day, because maybe then I could attend conferences like this.   It looks really frickin’ cool, but, sadly, I will be stranded here in soggy, snowy New England.

But maybe you won’t be - maybe you, whoever you are out there, are going to the conference.  If you are and would be so kind as to blog the conference or at least take some notes, I would be incredibly grateful.  I would love to hear about how it turns out.

Also, the conference website has a great list of papers/articles/other resources here.  Looks like some cool papers will be presented at the conference, including one by Raymond Ku entitled “Consumer Copying and Creative Destruction: A Critique of Fair Use as Market Failure.”

Later: Mary Hodder at bIPlog is two for two today.  First, the DRM Summit notes in HTML, and now she tells me she’s blogging the conference.  Plus, she said that more papers will be going up on the resources page.  Stay tuned.

Filed by Derek Slater at 9:21 pm under General news
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In case you haven’t seen it, here’s the EFF’s reply comments to the FCC.  Hopefully, the FCC will heed their strong rebuttals to the MPAA’s arguments.

Filed by Derek Slater at 4:08 pm under Legal
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bIPlog has everything you need to know about yesterday’s summit.  I’m emailing them about the fact that it’s only in doc format - hopefully they’ll add another format (grumble). (Update: Ask and you shall receive, in HTML.)

I second Frank’s question about what compulsory license plan Lessig was referring to.  I’ve never read Lessig saying he out-right supports compulsory licenses; that’s certainly not in the Future of Idees. (Has anyone read him saying something to that effect?)….  He was certainly present at the talk Professor Fisher gave at Stanford - so maybe he’s on board, too.

Filed by Derek Slater at 2:44 pm under General news
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(For those of you not on the BNA list, go here.)

First, big things are apparently afoot at the FCC.  I honestly don’t know enough about it to voice an opinion, but if you have one, I’d love to hear it.  Is this sort of deregulation really the path to more pervasive, cheaper broadband?

Second, the Senator Wyden is close to introducing a bill that would require labelling of anything using anti-piracy technology.  You might remember Wyden from his drive to stop TIA and from the Cox-Wyden consumer rights bill.  This was the bill pushed by DigitalConsumer.org that didn’t get near as much attention as the Lofgren and Boucher bills.

Third, BNA and Lawmeme both directed me to this story.  Apparently, music publishers are suing Bertelsmann AG for aiding Napster users’ piracy.  Um, maybe it’s just me, but wasn’t Bertelsmann trying to make Napster legitimate?  And, didn’t the music industry basically prevent that by suing Napster into the ground and by eschewing the use of P2P as part of their business model?  Do we need to do any more damage? 

Just in case the music publishers don’t get it: Napster has already gone bankrupt.  KaZaA and Morpheus and Blubster and myriad others are still operating.  Get over Napster! 

Filed by Derek Slater at 2:22 pm under General news
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