A Copyfighter’s Musings

So, upon returning from my vacation, I promptly got sick for the entire weekend.  As such, I was in the mood for Seth’s great, less-than-optimistic post (which I assume he wrote while recovering from his own more serious illness).

Though I think Seth has hit a lot of nails square on the head, I want to address some of the benefits to preaching to the choir.  I started to think about this after reading Matt Yglesias’ reference to a Michael Walzer article about this subject, which I’ve got to track down at some point.

1.  As Yglesias briefly points out, preaching to the choir is often a more efficient use of resources.  How so?  With any given subject, there are only a limited number of people who are ever going to be knowledgeable about it.  Within that subset, there’s a limited number who will ever go beyond knowing and actually care about the subject.  Beyond that, there are still fewer who are care enough to do anything.  The difference between the last two categories generally involves the degree to which the people care about the subject.

Preaching to the choir (by definition) involves talking to people who already care.  Still, it can make them care more - perhaps enough to actually act.  What it takes to make this shift, I don’t know. Regardless, preaching to these people can often help make that jump.

2.  There’s another category of people: those who care but aren’t knowledgeable.  I assume that there are a lot of people out there who are anti-circumvention and mandates, but don’t really know what’s going on.  They can talk generally about these problems, but they don’t know specifics. (I remember being one of these people, and, to an extent, I still am one.)

Preaching to this choir is helpful because these people cannot carry on the message to others without knowing some degree of specifics.  People who know nothing about these subjects will not be captivated by general talk of “free culture,” consumer rights, or the freedom to tinker.  To get them to care, they need know what specifically is being done and how certain policies could specifically affect them.  Without this grounding in reality and actual policy, the discussion will be too abstract and philosophical to make someone care.

3.  This is not to say that being specific is all that’s important. It’s important to be able to discuss more abstract concepts - but how to do this?

Often, the choir might agree with the preacher, but they certainly can’t preach like them.  Listening to the preacher shows the choir not only what’s going on, but how to talk about it. Often, this means cutting the problems down to bite-sized chunks: stories, analogies, farces that come too close to reality, quips, even cliches. It’s this ability to take complex subjects and make them easily comprehensible that makes people like Professor Lessig amazing.  Similarly, Professor Zittrain is a great speaker not just because he’s so knowledgeable, but because he always manages to get this audience laughing (at least, that’s my experience with him).

…I’ve got more to say on this, but for now, I’ll have to leave it at that.  I’ll also try to catch up on more of the news I missed ASAP.

Filed by Derek Slater at 1:33 pm under General news
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Phew. Back.  Might have something tomorrow, but still trying to unpack and catch up on mail - and blogging! Seems like a lots been going on between iLaw and this whole super-DMCA business.

Filed by Derek Slater at 11:26 pm under General news
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Check it out.

Filed by Derek Slater at 9:36 am under Big Ideas
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Hurray for a week off.  No posting from now until next Thursday.  I’ll be studying digital media here. Go to the blogroll, particularly Copyfight, because iLaw is coming up.

Filed by Derek Slater at 9:30 am under General news
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So, I’ve been having some wonderful email exchanges with the director of IT Security at Brown, who’s having to deal with the onslaught of notice-and-takedown requests.  Thoughts that have come out of it:

First, it’s good to know that someone incredibly reasonable is in charge of this at Brown. She made it clear that they don’t want to accidentally force someone to delete a legitimate file.  It also seemed like she was looking for a solution that didn’t involve a tech-lockdown, like shutting down all access to P2P, or monitoring all traffic.  Not all colleges are this lucky.

Second, she thought that the RIAA/MPAA were tracking downloads, not just sharing/uploading. (I had assumed this, too)  Again, anyone know if this is being done? Or whether it’s even possible technically speaking?

Third, I’ve begun thinking of what to say to colleges generally speaking about how to deal with this problem.  I’ve begun to come up with a list of things colleges should do/think about regarding 512:

1.  Don’t go further than the law. Don’t monitor your network, don’t shut off access to P2P programs.  If you appease the copyright holders now, they will only come back asking for more.  Otherwise, your academic freedom will be in danger.

2.  If you feel like the DMCA is putting an undue burden on you and your users and that the law should be changed, help the reform effort.  Try to ensure that the copyright holders have a high burden of proof (currently, copyright holders can go straight to the college with a mere “good faith belief”).  A higher standard of proof will make it less likely that copyright holders send you bogus complaints.  It will also be good for your users, in that it will restrain the abuse of the power 512 gives copyright holders - again, the impact of 512 on free speech and privacy is important. 

3.  Still, even a higher standard of proof is not necessarily going to change a college’s role in this.  (ASSUMPTION) Given that most of the use on P2P networks isn’t legitimate, you’re still going to have to deal with copyright holders’ requests. 

In part, reducing your burden will simply mean installing technical means to automate the notice and takedown (question: is this possible?).  There still must be some room for humans to monitor these requests, of course.  You have to make sure that this isn’t being abused.  An automated system is particularly prone to abuse because everyone in the world is a copyright holder. The easier you make it to file a request, the more people are going to send them, which leads to an increase in the potential for abuse.  Also, an automated system might be more susceptible to technological attacks (question: could people flood it with requests, like a Denial of Service attack?) Again, we can help reduce these abuses by reforming the DMCA to include a higher standard of proof and perhaps harsher, easier-to-attain penalties for people who make false accusations or try to attack  the system. 

Second, educate your users.  This doesn’t mean hold sessions that repeat that people have done something wrong or constantly sending out emails about file-sharing.  Make the information available, but don’t be surprised if people just throw it away. 

The real education will come in shutting off people’s access.  Don’t do it permanently unless there have been repeated abuses.  Even shutting it off for a short time will create an inconvenience that someone might not want to repeat.  Word of mouth travels on campus, and that will help deter some file-sharing.  Some, but not a lot.  Don’t expect wonders.

Third, educate your users as to their DEFENSES. In fact, remember your defenses. Alleged infringers and service providers know that they have a right to sue if they suffer damages from a false claim.  Again, restraining the abuse of notice-and-takedown will force copyright holders to be careful in their claims.

The DMCA 512 says:

(f) MISREPRESENTATIONS. -Any person who knowingly materially misrepresents under this section - (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Filed by Derek Slater at 8:57 am under General news
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Ren Bucholz of the EFF responds to Felten’s (and my) thoughts about threat models. 

He’s got a good point that the Napsterization model, which includes bulletproof DRM (presumably), does encompass casual copying as well.  Furthermore, he makes the point that DRM is reshaping how people think about their relationship to digital media and that it might not be worth trying to negotiate with the RIAA/MPAA on this point.

At the same time, it is worth noting that, generally, you do forfeit some benefits by going to the Napsterization model.  First, you don’t get the benefit of having to spend LESS money on trying to create the holy grail of digital media: bulletproof DRM. Second, you frustrate more consumers.  The stricter the DRM, the more likely it is that all uses are restricted.

Filed by Derek Slater at 8:49 am under General news
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TechLawAdvisor points to this decision by Judge Posner, in which he notes in dicta that “a copyright licensee has no right to make further copies (except a single, backup copy for his own use).”

Only a single copy?  That’s kind of interesting.  I haven’t known other decisions to be so narrow.  The AHRA is certainly broader (”No action may be brought under this title alleging infringement of copyright … based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings”).

Go to TechLawAdvisor’s post for more.

Filed by Derek Slater at 10:12 am under Legal
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Frank points me to this.  I’ll let Texas Rep. John Carter speak for himself:

“What these kids don’t realize is that every time they pull up music and movies and make a copy, they are committing a felony under the United States code. If you were to prosecute someone and give them three years, I think this would act as a deterrent.”

Strong sentences are strong deterrents, right? Totally. Like mandatory minimums, for instance.  They were created for all the right reasons and worked very well.

Heh.

This is part of a really interesting shift in the RIAA’s strategy.  Will going after individuals, through civil and criminal action, affect consumer behavior? Will it just turn people off from buying music because they’re disgusted with the RIAA? Or will it spur even more piracy? Or, could it actually work?

I don’t have a lot of faith in the latter being true just from harsh sentences.  It’s still going to be difficult to catch most people, and it won’t affect many people outside this country; plus, people will find ways to make themselves more difficult to find. 

I’m not denying that it’s within the RIAA’s and the government’s power to go after people who break the law. I’m not saying they shouldn’t in all cases necessarily.  However, I don’t think it will have the desired impact of curbing file-sharing.

(Note: I realize that Carter isn’t asking for new legislation.  But, there have rarely been prosecutions under the NET Act - no prosecution for limited piracy, as far as I know. In that way, it’s effectively strengthening sentences.)

One other thing: Siva said something very interesting at the conference on Saturday.  In the context of discussing needlework and copyright with Alec, he said “If needleworkers got DRM, would that make the world better?”  Good question.

So, I ask: say prosecuting file-sharing did end piracy.  We basically return to the way business worked before, except we purchase things from companies online. We’ve probably scared most people off from using various technologies for perfectly legal purposes.  But, we’re back where we started, which, before the Internet, was acceptable enough.

Is that where we want to end up? Is that optimal?

Filed by Derek Slater at 9:09 am under General news
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Professor Felten describes further how the entertainment industry can’t figure out its threat model: are they trying to stop even one copy from getting on P2P networks, or are they simply trying to get piracy down to a manageable level?

Filed by Derek Slater at 8:52 am under General news
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[Note: no copyfighting news here - just shameless self-promotion.  Read on at your own risk]

I’m looking for summer work in San Franicsco/the Bay Area.  I’m hoping to do some sort of work involving Internet and/or intellectual property law.  Slightly more specifically, I’m interested in journalism (newspapers, magazines, websites) and law firms/clinics/legal research centers/etc. that focus on those issues.  I’d like to do something where I get to do some writing or legal research, but I’m pretty much open to anything.  If you work in one of those fields, or can refer me to someone who does, please write to me.  Or, if you know of something else that’s cool to do in San Francisco over the summer, write to me anyway.

Filed by Derek Slater at 12:56 am under General news
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So, in today’s IOP Internet and Civil Liberties Study Group, Blythe Holden and I got  to help out, explaining and debating the DMCA 512 Safe Harbor provision for OSPs.  A couple of thoughts:

1.  I still find this to be one of the toughest subjects to deal with regarding the DMCA and perhaps the copyfight in general.  The balance is off in 512 - too many problems regarding anonymity, privacy, and speech rights.  Too much potential for abuse, given where the burden of proof is on the accused and too little on the accuser.  Even if there were a higher standard of proof for the accuser, copyright holders generally have more money and time to handle such actions; your average person will never be able to contest notice-and-takedown on an equal ground.

But, though I can (try to) make the case that we shouldn’t outlaw fair use via 1201, I can’t really make the case that copyright holders should have no means to go after infringers.  I can make a lot of arguments regarding why DMCA 1201 should be abolished completely and can’t be easily reformed to limit its chilling effects and abuses.  But, I can’t easily make the argument that we shouldn’t have anything like 512 in the law; I want OSPs to have some safe harbor, and I can’t easily argue that copyright holders should have no means to go after infringers.

With 1201, the law is hindering completely legitimate uses. On ther other hand, being able to go after infringers doesn’t stop legitimate uses.  1201 stops you from making a fair use, but notice-and-takedown doesn’t stop you from downloading public domain materials from a P2P service, for instance.  It’s only when 512 is abused that there’s a problem.  And, I wonder if we can ever completely stop those abuses, or, rather, what level of abuse would be tolerable.

Or whether it even matters.  If the RIAA/MPAA step up their efforts to go after individual infringers, will it actually have an impact on piracy?  Probably won’t outside of the US.  So far, it hasn’t seemed to affect fringe networks like Blubster and Soulseek, let alone KaZaA and Morpheus.  In some ways, I feel like the problem of  512 and going after individual infringers is yet another reason to examine copyright’s core, not just its edges.

Any thoughts?  (Obviously, my thoughts are fairly rough - wouldn’t mind hearing how people would fill in the gaps).

2.  We got into a discussion about what the RIAA/MPAA is responding to in its notice-and-takedown requests: is it uploading/sharing or downloading? 

This was an issue in the Verizon ruling.  As reported by TheStreet.com, “[The RIAA did not accuse the file-sharer of]  downloading, but uploading. And not even uploading — simply ready to upload. The RIAA made no allegation as to how many copies of the files at issue were actually made from the files at issue. Compounding Judge Bates’ error, numerous news outlets repeated the ‘downloaded 600 files in a day’ accusation. People who should have known better. Institutions you would think get tech. Places like CNBC. CNN. Reuters. The Washington Post. The San Jose Mercury News. The Atlanta Journal-Constitution. Newsday. And, oh yeah, TheStreet.com.”

As Professor Zittrain noted in the study group, this doesn’t mean that the sharer wasn’t guilty of infringement; even if it’s the copyright holder who downloads those files, the sharer has committed infringement.   But I’m interested: does anyone know of someone being accused of downloading, rather than uploading?  It has been my assumption that people had been threateend because of downloading too. After all, if Brown University is telling students to delete files from their hard drive, I assume that the implication is that the students do not legitimately own the files.

But wait a second: I can be sharing a copy of a song without it being an illegitimate copy.  Why should I be forced to delete that legitimate copy?

So, two questions for those of anyone who knows about this stuff:

1.  Can RIAA/MPAA track downloads?  Can they go after people who are not simply sharing songs/movies?  Have they done so?

2.  If not, is there any reason why universities should be forcing students to delete the material without further investigation?

I’m going to write to the people at Brown first, and then hopefully try to find out from other universities what’s going on. If you have any info, I’d love to hear it.

Filed by Derek Slater at 7:19 pm under General news
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1.  I’ve been really interested in one peculiar strain of rhetoric that RIAA/MPAA/BSA/et al employ.  They say that a single unprotected copy can spread all over the world, so they need perfect protection to ensure that mass piracy does not occur.  Now, at the conference, Alec and Robert were saying that they need the DMCA to get piracy down to manageable levels.  They know they can’t stop everyone from breaking the encryption or obtaining a pirated copy, but they can make it hard for the bulk of the population.  I hear that sentiment more and more these days as the RIAA tries to change its image to seem more accomodating to consumers.

Does this rhetoric make any sense?  The “single unprotected copy” problem is a binary issue - total control/no piracy and no control/total piracy.  The ”manageable level” idea implies a spectrum of states.  So, which is it?

I’m not pointing this out to say ha-ha, stupid copyright holders can’t even come up with a coherent argument.  Rather, I think it’s indicative of a sort of identity crisis in the copyfight. 

I look at Alec French saying that CSS has worked, that it’s been a boon to DVD production and that it’s suppressed piracy to manageable levels.  The thing is, CSS doesn’t fit the spectrum of states model - it’s binary.  Because of DeCSS, anyone who wants to can make a copy of a DVD.  I can’t imagine someone putting a DVD into their computer and, when failing to copy it, would just stop there.  If someone really wants to make a copy, they’ll go to Google, and it’s pretty straightforward from there.  Moreover, if people want to get a pirated copy of a movie they can.

So how can you say that CSS really works? And how can you say the DMCA worked to prevent DeCSS from being created and distributed?  How has it reduced piracy?

The point is: I feel like some parts of the entertainment industry really want to tone down their message, and part of that is saying that they only want to get piracy down to a manageable level.  If they take this more minimalist approach, it’ll seem better for consumers and it will probably be easier to carry out.  At the same time, they see what’s happened with the cracking of current DRM, and that makes it seem like they need total control (Holling bill, plugging the analog hole, etc.).   So they’re kind of trapped, caught between these very different ideas of how effective DRM needs to be and how to end piracy.

You end up with rather inconsistent messages from the entertainment industry, which (at least for me) are incredibly disconcerting.  I wonder what their goal is, what would satisfy them.  Until we know that, it’s hard to push towards any solution.  Particularly, it’s important to know what a manageable level of piracy would mean for them.  What level of control are they actually seeking?  Or, is that part of the rhetoric just a ruse?  I’d like to know, because it’s going to be critical to any compromise. 

2.  Though Frank thinks I was being a little harsh regarding Boucher’s speech, I didn’t mean to be - I was just trying to state that I wasn’t overwhelmed by anything he had to say.  In fact, I was rather underwhelmed. Maybe I’m not his audience, but I was hoping for something incredible from him since he is often portrayed as Our Guy in Congress.  Instead, I got the normal DMCA talk, which is fine, but nothing that I felt like taking a ton of notes on.  Though that’s my reaction, it doesn’t mean it was a bad speech.

3. Many panelists mentioned education as one way to help stop piracy.  I’m not too convinced.  I don’t think people are downloading music because they think it’s legal. They know it’s illegal, they do it anyway.  That goes for pirated software, too.  The BSA has been leading education campaigns for years.  Has it changed anything?  I doubt it.

Can someone show me how education has been useful in the past?  Or, can someone describe to me some new form of education that might be effective and hasn’t already been tried?  What’s going to change people’s norms to the extent that piracy recedes?

I’ll have more later…

Filed by Derek Slater at 10:54 am under General news
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The Brown Daily Herald discusses Brown University’s increase in copyright infringement notices from the RIAA and others.  This email was sent around to all Brown students last week. (Here’s a link to Brown’s policy regarding network use as well.)

It’s worth looking at the email because the author actually does a decent job with the issues.  She doesn’t threaten students or go off on a rant about file-sharing being highly immoral; she even recognizes that some file-sharing is legal.  She simply says that the University has certain obligations under the law and that’s that.

Filed by Derek Slater at 7:40 pm under General news
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Frank’s got it going.  I will be back tomorrow morning to throw in the various random thoughts that occurred to me.

Filed by Derek Slater at 12:02 pm under General news
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Just got back from the Harvard JOLT Copyright and Fair Use Symposium.  I’ve posted notes here:

Panel 1

Boucher Keynote (to be honest, he didn’t say anything that revolutionary, so my notes aren’t that great)

Panel 2 (also, less detailed notes here than for panel 1, because I had to step out for a bit and I missed a couple of things. But still got most of the important points)

Filed by Derek Slater at 3:29 pm under Notes
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