A Copyfighter’s Musings

I finally read most of Harvard JOLT’s fall issue, including Yochai Benkler’s article on wireless (which I’ll get back to once I’ve read some counterarguments). 

There’s also this very interesting article called, “Cable Modem Service and the First Amendment: Adventures in a ‘Doctrinal Wasteland.’”  It’s a fascinating read. First, he goes through the basic history of cable modem regulation, including AOL’s position switch. He then compares two divergent lower court opinions, shows how they match up with what the FCC’s said, and discusses which ruling is probably correct.  Sometimes I wasn’t quite sure whether he was making normative or deductive claims.  I’ll try to review it later, see what I was missing.

One point that caught my eye:

“Some proponents of mandated access claim that cable modem service consists of two discrete elements: a “pipeline” and the services transmitted through that “pipeline.” The FCC, however, concluded that cable modem service is an “integrated service” combining “the transmission of data with computer processing, information provision, and computer interactivity, enabling end users to run a variety of ap-plications.” This meant that the FCC would not target the transmis-sion function as a “telecommunications service” subject to Title II regulation, while leaving the other elements unregulated. As will be shown next, viewing cable modem service as an integrated combina-tion of content and “pipeline” strongly supports the First Amendment rights of cable operators.”

This is later related to one court opinion, which the author says is correct given what the FCC’s said.

Intuitively, this strikes me as plain wrong.  Apparently, the “content” (as described in the article) seems to be merely the start page ISPs provide to their customers. Perhaps it’s more, but, even if it is, it still seems like you can separate the content from the pipeline.

This points to another problem in our classification system. It’s one John Palfrey has mentioned many times: how we define an ISP or a “telecommunications” service provider?  We don’t know, because they seem to be defined many different ways. 

I haven’t read near enough about the growing control in the “physical” (and, hence, the “logical” and “content”) layers.  I’ve understood the basic outline for awhile, but I haven’t investigated too deeply.  I should probably go back and look at the recent changes in DSL rules (is it still right to think that DSL is less problematic than cable in turns of content control?).

Filed by Derek Slater at 12:47 pm under General news
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1.  Matt would appreciate this: “Copyright Category Confusion and Its Consequences: Online Transmissions and the Rights of Exclusive Use Under Copyright.”  I like this bit in particular:

” The first sale doctrine is not triggered, however, until a distribution occurs; if an online transmission is deemed a reproduction but not a distribution, the first sale doctrine would not apply to the user’s copy. No rental for profit would then be permissible without the permission of the website copyright owner.”

2.  The other day, I considered renting a movie from MovieLink.  I always like to see how these new DRMized offerings work - I like playing around with them, seeing what actions produce error messages, experiencing the service’s (dis)ease of use.  Experiencing the service first hand gives me a feel for its potential for success and the current state of the industry. 

Plus, I was tired of studying, and I didn’t want to pay the two dollars back and forth on the subway.  I didn’t want to pay 5 dollars just to rent a 3 dollar video.

So I access the website, and they’ve got the perfect movie for brains fried by studying: JackAss the movie.  I click on it, and what do I see?

A price tag of five dollars. Five dollars. To rent a movie. Over the Internet. Their price is higher than Blockbuster’s.  Not to mention the DRM.

The movie execs should know better. Supposedly, they’re the lucky ones, because they get to learn from the music industry’s Napsterization. The MPAA can avoid the RIAA’s mistakes. And, the MPAA knows where it has to end up - closer to iTunes, farther from PressPlay.  Right now, the movie industry is in PressPlay territory. Sigh.

Filed by Derek Slater at 1:08 pm under General news
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Here’s one of the biggest semi-myths about copyright: video stores are only allowed to rent out movies because the MPAA has given them permission.

It’s a myth because of the first sale doctrine.  Video stores can do what they wish with the particular copies they purchase.  (Interestingly enough, this is not true for sound recordings and computer programs.)

I’d say it’s only a semi-myth because (I think) most video stores do enter into licensing agreements these days.  Check out this article for a brief history of the video rental industry (with comparisons to libraries).  In the 1980s, the movie industry tried various licensing schemes to hamper the video rental industry.  Today, the two industries enter into mutually beneficial agreements, like this one.

So, a couple of issues come to mind.  First, how was the movie industry able to price discriminate against rental stores in the first place?  How did they determine who was purchasing copies in order to rent them out?  How does anti-trust law look at this sort of price discrimination? (Perhaps I should try to find this at my library.)

Second, look at page 12 of the Universal-Blockbuster agreement linked to above. Section g states, “No First Sale: Blockbuster agrees that the license of a Copy … under this Agreement … shall not be deemed a ’sale or other transfer of ownership’ within the meaning of Section 106(3) of the Copyright Act, … and shall not render Blockbuster an ‘owner’ of the Copy … within the meaning of the Section 109(a) of the Copyright Act…. Blockbuster expressly agrees that as license it has no right to ’sell or otherwise dispose of the possession of any Copy … except as expressly provided in this Agreement.”  This seems like something similar to Bowers. It’s a contractual agreement that nullifies the public’s rights in copyright.  Unlike Bowers, it’s an agreement with a quid pro quo that is clearly acceptable and acknowledged by both parties.  Blockbuster agreed to this not because it had to, but because it wanted this special arrangement.  But is this difference significant enough?  If the Supreme Court takes this case, and reverses, how will it draw the line?

Would this sort of license be ok in a typical consumer context, say, when purchasing a CD?  If you were given the option of purchasing a CD for 10 dollars with no restrictions, or purchasing the same CD but without the ability to copy for 5 dollars, would that be ok? Proponents of DRM repeatedly cite the benefits of this sort of price discrimination.  Is this active undermining of fair use as a right bad?  Is it only bad because of unfair conditions within the current marketplace?  Or is it bad generally, because we should have a right to copy? Should we follow the lead of the Lofgren bill in this regard, nullifying such contracts?

Filed by Derek Slater at 12:45 am under General news
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Professor Volokh just finished a draft of an article entitled “Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, Saderup, and Bartnicki.“  He’ll be posting it soon.

Filed by Derek Slater at 11:24 pm under General news
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I finally got a chance to bang out (as requested) a draft letter about the Public Domain Enhancement Act aka the Eric Eldred Act.  Comments are welcome, feel free to reuse when you write to your own Congress critters.  I lifted liberally from the “two pager” that Lessig published (do you think he’ll sue?), but cut its size in half.

Update 5/22/03, 11:25 PM: Cool, looks like people are finding the letter.  I’ve been making slight adjustments throughout the day, so check back if you want an updated version.

Filed by Derek Slater at 3:00 am under General news
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Things are going to slow down a bit over the next two weeks.  I have my last exam Friday, then I head to my step-brother’s graduation from Middlebury, then to New York to spend some time with my dad and brother, and finally to beautiful San Francisco, where I’ll spend the rest of my summer.  Hopefully, you’ll see some posts next week.  If you start to suffer from withdrawl, use the blogroll or my news aggregator.

If any of you live in the Bay Area and want to get together, drop me a line.  Mary Hodder and I were discussing getting together at an EFF MeetUp - sounds appropriate.

As I implied earlier, I’ll be working for Creative Commons this summer. I am incredibly excited to help out and meet everyone there.  Expect to see my work in the features section.

I hope to post at least two or three times a week during the summer.  My Net access is going to be cruddy, and I’ll be pretty busy, so we’ll see.  In any case, I intend to delve into some cyberlaw/space topics I haven’t spent enough time on.  I need to read about spectrum, I’ve never read Shelley Turkle’s Life on the Screen, and I want to read about the FCC - there’s too much to study.  I also hope to read more about constitutional law, so maybe you’ll see some tie ins there.  In any event, expect to see less frequent, but hopefully longer pieces, along with analyses of  important breaking news.

I want to end this first phase of my blogging with a few closing remarks:

When I started this blog four months ago, I had no idea what it would turn into. Interacting with the copyfight community on a daily basis has been incredible. I’ve made many friends and learned an incredible amount. 

You all have helped give me a nice in-between, pseudo-academic space to write in. Let me explain what I mean.  When I started this blog, school was fine, but not optimal - it still isn’t.  In some courses, I feel fulfilled at the very end, but the process itself is often grueling, high pressure, and high stress.  It’s not that the coursework is too difficult - it’s very do-able, and, in many ways, I’m getting off a lot easier than my classmates.  But, there’s something about doing this sort of work that isn’t healthy for me - when my coursework peaks, I turn into a person I don’t entirely like. I know, I know - wait until I get to the Real World.  But there’s something very peculiar about this academic lifestyle.

Blogging is the complete opposite.  It’s low pressure and collaborative - the atmosphere makes me want to work harder, study more, because it’s always fun.  I continually ask questions and receive insightful responses.   It allows me to focus myself a little, get my ideas down on paper - after reading blogs and copyfight articles for so long, I needed a way to engage the topic more actively.  But, I get to test out my ideas without putting out full-fledged analyses or policy proposals or even a basic research paper.   As much as I (think I) know about copyright, I’m far from saying anything comprehensive. On a much more basic level, I’m still learning how to express my thoughts clearly (Professor Felten and Donna in particular make writing clearly look effortless - even if it isn’t actually effortless, I want my words to feel that way).  I still feel/am very much like a student, not a scholar.  At some point, I want to write in-depth about the copyfight. But, for now, blogging is just what I need. 

My favorite moments of this in-between writing space have been when the experts build on something I’ve said.  For instance, when Felten wrote up this bit on DRM and linked to me, I was overjoyed because he said what I wanted to say but far more eloquently than I could hope to.  I reacted similarly when Frank recently wrote about the role of universities in the copyfight.  It’s nice to know that people are picking up what I say, but it’s even better for me to see them express the underlying ideas with such precision and skill.

Connecting amateurs and experts really makes this community what it is.  I have loved debating with Matt Morse, because we’re both just trying to feel our way through this complex topic - as far as I know, he hasn’t been schooled in this subject either.  The S-DMCA protests were spurred by Felten, but it’s amateur mobilization that’s helping slow these silly bills down as much as we can.  Even when I’m not interacting with experts, I have learned so much from watching them.  Though not completely copyfight related, if you haven’t read the current debate between Jack Balkin and Larry Solum on how judges should judge, you’re really missing out.  It has been absolutely riveting.  And here’s the thing: read Solum’s latest post  or this one - maybe he could get away with that sort of writing in an academic journal, but I doubt it.  It’s beautiful to see them write in this way.

I look forward to much more blogging to come.  The copyfight is only starting to heat up. I intend to be here for the long haul, and I’m glad I’ll have all of you with me.

Filed by Derek Slater at 1:04 pm under General news
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Anyone notice this before?  I noticed a link to it on Aaron’s blog

Filed by Derek Slater at 5:25 pm under General news
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Politech has featured an argument between Public Citizen and other amici for Verizon.  Public Citizen, which had defended people from CyberSLAPP suits, decided not to join the EFF’s brief and is instead arguing that the Court should recognize some privacy safeguards while upholding the DMCA itself.

Public Citizen “urges the Court to rule that, when a subpoena is obtained under 512(h), the subpoenaing party must allow enough time to respond to enable the ISP to provide notice and to enable the user to obtain counsel to defend his anonymity.”  The court should use the typical balancing test for anonymity prior to revealing a user’s identity.  Since the users were notified in this case, the court should affirm the the lower court’s ruling.

Here’s where I get a little confused and, maybe, if you take a look at the briefs and messages, you can see where I’m right/wrong.  Public Citizen argues in one part of its brief that the John Doe procedure for identifying users should be used.  At the same time, Public Citizen seems to argue that the DMCA, while not precisely like the John Doe procedure, satisfies the same procedural needs.  As long as the users (the “Does”) are aware that the copyright holder is seeking their identities, then the procedure is fine.  Public Citizen’s brief closes with a description of the evidence the RIAA produced, mentioning that the Does did not contest this information and that “The John Doe procedure would not provide any more protection.”  The reason I find this incredibly confusing is that Public Citizen’s press release discusses how “the same [John Doe] procedures apply under the DMCA.”  So, are they saying that the exact same procedure must be applied or that the DMCA with notification to the Doe is equivalent? 

I seem to not be the only one getting a mixed impression. On Politech, EFF Chairman Brad Templeton wrote, “You’re not so far from the EFF in this case then.  We agree that proper John Doe defendant rules should be applied in these cases, as they have been for alleged defamation cases on online message boards and other locations. The court has so far interpreted the statute to hand over identity with a mere allegation.  There has to be a standard of proof before the identity is handed over.”  Meanwhile, EFF lawyer Cindy Cohn wrote in to voice her disagreement with Public Citizen’s believing notification is enough.

In any case, I presume that Public Citizen is only asking the court to affirm a notification requirement.  Otherwise, they would have joined the EFF’s brief, which details the lack of safeguards in the DMCA and explains how the current procedure is unconstitutional.  As Public Ciizen’s Paul Levy noted on Politech, that’s a much tougher argument to make.  Public Citizen is simply asking the court to read the law in a particular way.  Moreover, they’re only stating the the procedural requirements have been satisfied in this case under these particular facts.  It’s a pretty narrow argument.

Filed by Derek Slater at 12:16 pm under General news
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This gives me a terrible feeling. (via Politech)

As Declan notes in his article, Congress had already been having some anti-P2P hearings.  This caucus will allow them to focus their energy on it.  Let’s hope they actually listen to consumer groups.

Filed by Derek Slater at 11:56 pm under General news
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1.  Talking with Matt about stretching meatspace definitions to fit cyberspace has made me think about The Ontology of Cyberspace.  The author argues that new technologies, particularly software, illustrate how the patent-copyright distinction is improper.

As opposed to the way Matt and I have been treating cyberspace, the author’s conclusion is that “cyberspace is nothing very special” and reveals existing problems in our meatspace definitions.  I don’t really agree with him here or in his general conclusions.  It’s too simplistic to simply lump everything in patents and copyrights together - they have different purposes that require separate categories, even if that results in incorrect ontology. For more, see Harvard JOLT’s great review discussing some counterarguments (and, if you’re interested in philosophy, check out the JOLT author’s senior thesis: Our Online Worlds: Code as a Technology of Power.). 

Nevertheless, the author’s methodology is pretty interesting - the way he carefully critiques categories and definitions themselves, whether they make logical distinctions, is worth checking out.

2.  Frank links to this piece about the DMCA embedded in the Singapore-US trade agreement.  The article doesn’t do that much more than most anti-DMCA articles. The author’s two key points regard larger issues of fast track trade authority and its constitutionality.  The first separation of powers question I understand, though I don’t know if it’s a criticism that would stand up in court. The second problem I really don’t understand.  She states, “[I]t is not the judiciary’s role to decide whether the United States should honor its treaties.”

Yes, the Court has generally seen foreign policy issues as non-justiciable political questions (for a good definition, see Baker v. Carr, and, for an example in the foreign policy context, see Goldwater v. Carter - sorry, I’ve been studying it all semester, I’ve got to get the links out of my system).  But, if the US agreed to a treaty that eliminated the First Amendment, the Court would step in - there’s nothing that says they’d have to restrain themselves.  I can’t imagine the Court saying, “this is grossly unconstitutional, but, since it’s in a treaty, we can’t judge it.”

3.  I was going to through the archives of Legal Affairs magazine and came upon this article about Disney and copyright education.  It’s worth a laugh.

Filed by Derek Slater at 1:00 pm under General news
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Gotta love these creative solutions to the RIAA’s spidering strategies (via Politech). 

Filed by Derek Slater at 2:47 pm under General news
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The dialogue between Matt and myself continues here. [Updated: 5/18, 2:43 PM]

Filed by Derek Slater at 2:22 pm under General news
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I told you that KaZaA helps amateur movie makers.

Filed by Derek Slater at 3:49 pm under Big Ideas
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1. So, SpyMac is offline. Hurray for chilling effects.

2. Matt’s got a response up. I don’t think I’m going to tear through it in complete detail. But let me jot down some issues:

- Matt’s approach is intriguing. He’s trying to: understand the law’s text, determine the spirit of current law, define normatively what the spirit of copyright is, and render all those consistent. That is, he’s trying to fit his own normative conceptions into current law and, in some cases, show how current law could/should be altered/enlarged to align with its spirit. Good stuff.

- As Matt notes, this approach also generates some tangled logic. In many cases, I don’t think this description of the law reflects how it actually is. Sometimes, I’m not sure whether he means that the law actually says what he’s asserting, or whether it should state that.

- First, though infringement is not equivalent to theft, it’s a stretch to claim that the spirit of copyright law views downloaders as non-infringers. I’m not sure where that conclusion is coming from. Rather than trying to phrase this in terms of the distribution/reproduction in the physical world, let’s think about who the copyright infringement doctrine typically targets. This doctrine has targeted people who are actively participating in and enabling the illegitimate distribution of copyright works (yes, there are many limitations, but speaking broadly, this is the case - and when we’re speaking in terms of the spirit of anything, we need to speak broadly). It’s meant to inhibit people facilitating the acquisition of copyrighted material such that copyright owners are largely unable to profit from their works (again, broadly speaking). I think this “spirit” is far more fundamental than the “implied sequence” of reproduction/distribution. In terms of physical objects, the people who acquire unlawful copies are not really active participants in the illegitimate reproduction/distribution. It’s not just a matter of willfulness - they actually are not involved in distributing or copying the materials. On the other hand, downloaders on P2P services are participating in the copying of material. Moreover, they are often knowingly making a copy with a person who does not have authorization to distribute the material, thus depriving copyright holders of an exclusive right. In the spirit of the law, that sounds like infringement.

- What I’m getting at is: intuitively, do you think the spirit of copyright law considers people who are downloading files on KaZaA as non-infringers? If that’s what you’re arguing, I think you’re going to have to go deeper than pointing out the logical sequence of reproduction/distribution.

- On a more specific level, I’m not really sure how file sharing could be considered a public performance. Especially if Matt’s trying to create an analogy between the way copyright law related to the physical world and to the Internet, file sharing is nothing like typical public performances. So, even if there’s no congruence here, is Matt making a normative claim that this is how the law should look at it? If so, I’m not sure why.

- As far as the Betamax defense for file sharing: Matt’s right if he’s saying that downloaders, using P2P and making copies for their own personal use, are not infringing. But that only applies if they have legitimate rights to the particular copy in the first place. If Buffy is being transmitted to your TV, or you’re holding a CD in your hand, you’ve got rights to that particular copy. You don’t have rights to your friend’s CD, so you can’t download it and consider that personal use.

- The DMCA reasoning is very important. Again, I’m a little confused because I think it’s a strained reading to say the DMCA should be applied to individuals’ making temporary copies. But, if Matt’s saying that we should create a copyright exemption for the sort of caching your web browser does, I’m with him. I’m not really up on the law in this area, but, from what little I know, it’s incredibly murky; what’s more, it hasn’t favored the legality of such temporary caching. Look up the MAI case and see here, here, here, and, for fun, here.

- Matt and I have both run up against a lot of exceptional cases - for instance, what if you go to a website that says it’s authorized to distribute music but really isn’t. Are you infringing? Certainly, a caching exception would be necessary. But, also, I think other law regarding false advertising and other sort of misleading behavior might step in here. I don’t know enough about other relevant law to say if this is the case…. Still, I think it’d be much more difficult to prove that you were being misled if you’re downloading files on KaZaA.

- That’s my analysis for now - as you can see, my thoughts are pretty entangled, too, but I hope they’re of some use. Really, I think we’re just looking at similar issues from pretty different angles. I’ve been talking mainly from the angle of what the law says and how its spirit would look at downloading. Matt is trying to render new practices consistent with the law, even where the fit isn’t exactly clear. Matt’s ideas are incredibly helpful in examining how copyright law isn’t well-suited to cyberspace.

At the same time, I must stress that one must be very careful when saying “The most important issue here isn’t really whether or not downloading is actually against the law. It’s whether or not downloading is ‘wrong.’” If you’re going to start with that, and then make a bunch of arguments that directly relate to what the law actually says, then that’s pretty confusing - at least for me. Making consistent what the law says and what it should say is all well and good. But let’s not strain too hard to do it - in some cases, they simply are not consistent.

- Final notes: I really enjoy this. I know I’m expressing strong disagreement, but I really like Matt’s “novel line of reasoning.” It challenges my thinking and assumptions, and makes me want to do more research.

And, in general, I’m not advocating a normative position here. For instance, below, when I said that the law views people as infringers first, fair users second - I don’t think that should be the case. I think we should be thinking of fair use as a right. But, in practice, I don’t believe courts do this.

Filed by Derek Slater at 11:30 am under General news
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So I’ve got one week left. I’m not worried about that.

I’m worried about what will happen with my poor blog this summer.  My Net access is going to be far more limited, so I probably won’t be able to make the same sort of daily posts.

So I’m going to have to get creative (which, btw, is what I’ll be doing all summer long).  Expect posts to be a little more sporadic over the next month or so. I’ll be figuring out a way to adapt my blogging to a different Net lifestyle.

Filed by Derek Slater at 1:36 am under General news
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