A Copyfighter’s Musings

This seems pretty huge if it sticks. For more, see this post of mine and The End of E2E.

Filed by Derek Slater at 9:13 pm under General news
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1. Ernest has an interesting post about what is essentially another CL gaming technique. Frankly, I’m not really convinced that this is a huge problem. A couple of points:

First, I don’t see why the bmp/wav wouldn’t be compensable. If someone (1) downloads something that’s been converted using baudio, (2) the resulting sound is copyrightable, and (3) the user actually listens to the crackly noise, then that seems compensable. I think it’s jumping the gun to say that CLs will force us to reevaluate what is art.  If someone actually likes crackly sounds or toilets flushing, more power to them.

Second, as btempleton (who I assume is Brad Templeton) points out, this is another reason why sampling use is important. If they’re just downloading the “song” to convert it to an image, then the usage of the song would not be counted because they wouldn’t end up playing the sound.

Third, I also assume that there would be penalties for this sort of thing if you did it with intent to game the system. Would it be to tough to catch? Yes and no. To make this gaming technique worth your while, you probably will have to advertise in some way that the wav can be converted to something else. Otherwise, how will people know what to download?

Fourth, remember that Ernest talked mainly in terms of shareware developers and the like. That was a clever and important narrowing of the thought experiment. Most people wholly excluded from the CL would probably be nervous about distributing the their works in this form and encouraging others to redistribute it. After all, what’s to stop someone from redistributing it once its out of it’s .wav form? And would a court listen to the author in an infringement suit if that author had actively encouraged others to redistribute the work? Wouldn’t that be an implied license or something?

2. Scott Matthews also recently emailed me about a technique that wouldn’t really constitute gaming, but could be used in ways that might not deserve full compensation. For instance, say Google records a 4 second song that says “Welcome to Google” that everyone has streamed to them when they go to the search engine. Would we want that to be compensated like any other song? What if it were a three minute video advertisement for Company X? This is a tricky situation because the advertiser is paying the site to stream his ad and expecting compensation from people purchasing a given product – not necessarily (or plausibly) from people choosing to stream the ad. As Stan Liebowitz points out (see page 14),  there will be some peculiar situations where it’s not obvious who should be compensated.

I’ll throw out a few off the cuff thoughts about how to deal with some of these issues:

Perhaps we’d have to use some minimal requirements on what it meant for someone to be “using” a song. When Google’s “song” streams to you, maybe that doesn’t count because you didn’t click any button that said “Listen.” Likewise, we wouldn’t want automatically generated advertisements to be counted as a fully compensable stream.  Agency would be the key – what did the user do to generate the stream, and should that constitute a use of the song? You wouldn’t want to exclude songs that people really did come to a site to hear, so we’d have to be careful here.

Or, perhaps we could do some subdivision of genres (as Professor Fisher suggests might be beneficial in general). This wouldn’t be based on content but on economics – how much money should compensate any given genre? Divisions like comedy v. action movie would probably be too impractical and would not reflect the current world well, inasmuch as purchasing a ticket for a comedy costs the same as a ticket for an action flick. But divisions between song and “the sound when Windows boots up” or “the Google welcome noise” might be a little more reasonable.  You do pay different amounts for a CD than you do for a Welcome to Windows noise.

Some of these sorts of problems will be ameliorated by counting use and not just downloads.  Similarly, if you extrapolate counting downloads differently than streams that would help (since downloads are likely to be reused, whereas streams are by definition a one time only thing).

3.  One other interesting thought experiment: what about books-on-mp3? Obviously, they’re not the sounds we’d be targeting with a music-only CL. It’s a very different industry, so we’d want to adjust the tax and pay out accordingly if we want to include it in the CL at all. Would separating this genre have any horrible disadvantages? Do you agree that separating out this genre would not constitute defining what’s art in the way that classifying crackly noises and toilets flushing would?

Filed by Derek Slater at 6:57 pm under General news
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1.  I want to briefly comment on the EFF’s Trusted Computing report. Really, I have very little to add aside from thanks. It’s a well-written, balanced discussion with affirmative policy recommendations – can’t ask for much more than that.

Read the whole thing, but pay close attention to this part of the DRM analysis:

“[R]emote attestation is the linchpin of DRM policy enforcement. If a remote system lacks reliable knowledge of your software environment, it can never have confidence that your software will enforce policies against you. (You might have replaced a restrictive DRM client with an ordinary client that does not restrict how you can use information.) Thus, even though other NGSCB features aid DRM implementations, only remote attestation enables DRM policies to be instituted in the first place, by preventing the substitution of less-restrictive software at the time the file is first acquired.”

So, let me try to parse that: DRM could be more effective even without remote attestation, but, if you can override the attestation, then it’s possible for you to be running a system that gets around the other security features, too. Do I have that right?

2.  Read the Trusted Computing report with this (via Felten). Given how impotent DRM is today, how long until trusted computing is implemented effectively?  Will we not see a long series of systems that can be cracked with the equivalent of a shift key before anyone gets it right?

3.  BTW, just curious: did anyone ever crack Apple iTunes’ DRM? There really isn’t much a reason to, given that you can get around it by using some utilities to convert and recompress to MP3, or by burning to CD and then reripping. But I wonder if someone did it anyway.

4. And how is WMA fairing these days? I know it was cracked a few years ago, but that hole was fixed in later versions.

Filed by Derek Slater at 6:39 pm under General news
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I’ve recently been thinking about changes to the derivatives right. I’ve looked at compulsory licensing (in the sense of section 115) and changes to damages calculation, fair use, and/or the definition of derivative. And, of course, copyright expiration and a rich public domain would help. One idea I haven’t seen yet: having the derivative right expire prior to other rights.

Why might this be appealing? I am hypothesizing that most of the commercial derivative tie-ins happen relatively soon after the original release. You sell the movie derivative from a book when the book’s a best seller; you tie the video game and the McDonald’s toy line to the movie’s release; if you’re expecting to make money from a sequel, you make it relatively soon after; and so on. I know this doesn’t necessarily work across the board. But, when someone’s thinking about profiting from their work, for some reason banking on distributing it 25 years into the future seems a lot more plausible than banking on licensing deals that far into the future.

So maybe we’d have a sort of tiered expiration system, with the right to make derivatives falling into the public domain way earlier.

There are some substantial benefits over any system that involves a new balancing test for damages or fair use. I think it’s important that we revamp those rules, too, but I’m not sure if that’s enough. I don’t know how you get rid of the ambiguity in those sorts of tests. And in the compulsory licensing context, it would be complicated unless you restrict the right to one very specific type of appropriation. With a tiered expiration, we get a bright line rule.

Is it worth it? What would the timing be? Would it cover all derivatives (treating rap songs like expurgated films?)? Not sure right now. I’ll keep thinking about it – tell me if this idea is totally off the wall, or if you’ve seen it argued/explained elsewhere. Just throwing this out there in the midst of more research.

Filed by Derek Slater at 12:40 am under General news
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