A Copyfighter’s Musings

After all this, I can’t tell you how happy I am to read this.  Thank you EFF, Stanford Clinic, OPG, Nelson and Luke, et. al.  Not only was (at least most) of the posting fair use, but it was so obviously fair use that Diebold has to pay for its use of the DMCA.  The court ruled that 17 USC 512(f) applies to Diebold’s conduct.

From the EFF:

“EFF Wins in Diebold Copyright Abuse Case

Voting Machine Company Liable for Damages, Costs in Landmark Ruling

San Jose - In a landmark case, a California district court has determined that Diebold, Inc., a manufacturer of electronic voting machines, knowingly misrepresented that online commentators, including IndyMedia and two Swarthmore college students, had infringed the company’s copyrights. This makes the company the first to be held liable for violating section 512(f) of the Digital Millennium Copyright Act (DMCA), which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occured.

The Electronic Frontier Foundation (EFF) and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School sued on behalf of nonprofit Internet Service Provider (ISP) Online Policy Group (OPG) and the two students to prevent Diebold’s abusive copyright claims from silencing public debate about voting.

Diebold sent dozens of cease-and-desist letters to ISPs hosting leaked internal documents revealing flaws in Diebold’s e-voting machines. The company claimed copyright violations and used the DMCA to demand that the documents be taken down. One ISP, OPG, refused to remove them in the name of free speech, and thus became the first ISP to test whether it would be held liable for the actions of its users in such a situation.

‘This decision is a victory for free speech and for transparency in discussions of electronic voting technology,’ said Wendy Seltzer, an EFF staff attorney who worked on the case. ‘Judge Fogel recognized the fair use of copyrighted materials in critical discussion and gave speakers a remedy when their speech is chilled by improper claims of copyright infringement.’

OPG Executive Director Will Doherty said, ‘This ruling means that we have legal recourse to protect ourselves and our clients when we are sent misleading or abusive takedown notices.’

In his decision, Judge Jeremy Fogel wrote, ‘No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold’s voting machines were proteced by copyright . . . the Court concludes as a matter of law that Diebold knowingly materially misrepresented that Plaintiffs infringed Diebold’s copyright interest.’”

Filed by Derek Slater at 8:39 pm under General news
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Go here to learn about IPac, an intellectual property PAC.  They have three main principles.

1. Creators of ideas and inventions have the right to be compensated for their work, but not to limit political expression, veto technological innovation, or restrict education and scientific research. [read why]
   
2. Intellectual property laws should be judged by their potential to foster new creativity, as required by the U.S. Constitution. [read why]
   
3. Intellectual property laws should be clear and explicit, so anybody can create without fear of lawsuits. [read why]

Filed by Derek Slater at 7:32 pm under Big Ideas
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Donna reports that the PDEA has passed through the House.  Among many fine points, she notes the lack of debate on this issue.

The bill itself lists many “findings” about the state of piracy and that it must be counteracted, but there seems to have been no research regarding whether heightened criminal enforcement under lower standards would be beneficial. Much the same can be said for the Pirate Act’s allowing the feds to go after infringers as a civil offense.  No one at the hearing even thought to compare the war on piracy to the war on drugs.  Moreover, on a more concrete level, there’s not even the most rudimentary evidence regarding whether these prosecutions and lawsuits would have any practical impact.

Consider: as enforcement increases, more users will turn to more secretive systems that employ encryption and proxy servers. They will also turn to trusted small worlds networks, which, when linked together, may be just as powerful (particularly for popular content) as the current networks.  Looking at the current civil suits, enforcement seems to make little noticeable difference to traffic on the file-sharing networks. 

Congress could have done research on all these fronts and tried to more clearly demonstrate how criminal prosecutions and employing powers of the state (e.g., how do the privacy protections interact with wiretapping?) might affect matters, but it doesn’t seem like they have.  Certainly, they can assume that heightened penalties may provide some piracy reduction.  The question is: what is the net benefit?  Even setting aside the sort of cultural costs of turning millions into criminals, both the PDEA and Pirate Act involve large sums that must be spent on training and employing the feds.  As some pointed out, that money could be spent on more worthwhile enforcement in other areas of the law.  From what I’ve seen, they have not clearly demonstrated that the benefits of enforcement will outweigh these costs.

Filed by Derek Slater at 4:04 pm under General news
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The rains kept many away, I think, so it was less crazy than expected.  I gotta say: Trippi’s got a certain something in his voice and inflection. I could see why people would listen to and get behind him, and I could see a little of what makes him special.  The way he talked about the campaign and the bottom-up nature was at times inspiring (at times, he was clearly channeling Jim Moore).  That was cool.  Unfortunately, I can’t tell you anything substantive because it was all off the record.  Yeah, it allows him to let down his guard and say some things he otherwise wouldn’t, but those are really the main things worth talking about.  Rebecca Mackinnon asked why it was off the record and got more than a few - I think undeserved - strange looks; it’s an entirely reasonable question.

Filed by Derek Slater at 9:56 pm under General news
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Joe Trippi’s on campus, and the hype is coming in full force, on posters and in my e-mail box. At first, I was pretty excited and wanted to go to his new study group, but that’s receding as the student chatter grows. Maybe I’m too cynical but…

Joe Trippi helped do some really interesting campaigning and fundraising using the Internet and social software. He was a critical component, and he’s probably an amazing person. So are guys like Zack Rosen and Neil Drumm. So are David Weinberger and Jim Moore. Haven’t met them, but probably so are Zephyr Teachout and Matt Gross.

I wonder: will the mass of students attending Trippi’s study group have any idea who these people are? And will they ever care to? The posters advertising the event set Trippi up as the The Guy, when really he was The Guy Behind The Guy (Dean), and there were plenty of other incredible people behind him. This was, in some respects, an open source, bottom-up campaign, right?

Some students were keen enough to start a new TrippiAtHarvard blog - neat, you discovered blogging. But why not integrate with the rest of the Harvard bloggers? There’s already a whole community here ready to interact with you - hell, Weinberger and Moore both work at the Berkman Center. (Note: dropped the editor a line, and hopefully they will come to blogs@harvard).

Look, I’m only marginally a student of this stuff, and I’m not asking for people to have already read, say, Clay Shirky’s take on the campaign. I’m not questioning people’s levels of knowledge or interest in the subject matter - it’s not about that. Rather, I worry about their perspective. I hope that people don’t start tripping over Trippi, when there is so much more going on in this space than him and so many more amazing people at work. You overlook them, and you by definition don’t get it.

Filed by Derek Slater at 12:18 am under General news
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Frank provides links to news articles as well as the law’s text.  It’s got a couple of new exceptions it seems, but the privacy and anonymity concerns remain.

Filed by Derek Slater at 1:08 pm under Big Ideas
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I haven’t bothered to post about these issues because others have gotten to them quicker and better than I could, but that doesn’t mean you shouldn’t find them.  Donna has all the goods on the recent court decision putting the “limited times” clause into effect and nicely dealing with the copyright v. commerce clause issues, as well as the push behind a new Induce Act draft.  Ernest, of course, will follow-up with more soon on what’s been dubbed Induce 2.0.

Filed by Derek Slater at 12:46 pm under General news
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Robert Young, having tracked previous posts about digital first sale, pointed me to Ongo Bongo.  Apparently, the company is a CD rental service.  The exact scope is a little unclear from the website, which only mentions this service while noting in the FAQ that no such service exists yet.  However, other sources have reported that the company will operate much like Netflix. (I couldn’t find any of that language on the site, but perhaps I just missed something in my quick look.)

Unless they have a license from the sound recording copyright owners (that is, the record labels), a CD rental service of this sort is clearly infringing.  As I have discussed, the first sale doctrine is an exception to the exclusive right to distribute and generally allows people to sell, rent, loan, or give away lawfully made copies of copyrighted content; once Netflix buys the copy of the DVD, they can distribute that copy to others without it infringing the copyright.  However, a few exceptions to first sale apply.  The owner of a particular sound recording copy (a phonorecord) may not:

“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. Nothing in the preceding sentence shall apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution.”

So there you have it. First sale doesn’t cover music rental. I’m not sure what other sort of defense you could use.  If Ongo Bongo is actually going through with this service, they better have a license.

Filed by Derek Slater at 12:30 pm under General news
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Sony usually provokes a mixture of anger and joy as their digital media projects miss even the most basic elements of common sense.  Finally, Sony is slowly, hesistantly, and partially allowing MP3s to be played on some of its players.  Sony still seems to have no coherent strategy here.  Why on the flash players and not the hard drive players?  Why is ATRAC better and why must they push it on their music store customers?  Why not mention the lock-in ATRAC has to Sony devices, even after they adopt MP3?

Filed by Derek Slater at 4:13 pm under General news
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Steven Levy argues that the record labels should reduce their share of song sales, leading to a price cut while making up the losses in higher purchase volume.  He discusses the six-fold increase in Real’s sales after they cut their prices in half; that’s double the increase from when Rhapsody cut its burn prices in half. 

The Independent reports on what the labels are getting from online sales.  This report is not nearly as novel as the authors make it sound.  Also, one problem with their argument is that while the labels’ percentage share has gone up, their actual cut hasn’t necessarily changed that much.  To understand why, let’s first take a look at how the pie is split up for a CD, as described in Professor Fisher’s Promises to Keep.  From an $18 CD, labels would get about $9.50 (~53%).  About $0.76 of that would go to music publishers, with another $1.42 (~8%) for manufacturing, leaving the label at that point with $7.32.  Now, the Independent is looking at figures for singles sales, but let’s assume for the moment that the cut is the same for the album, or simply focus on an example with 10 songs.  From a $10 dollar album, the labels would receive 62%, which is $6.20.   But, still, one might wonder how the labels get away with increasing their percentage cut - well, the cost of retailing and distribution, the other 47% of a CD, have gone way down.  Stores like iTunes are quite squeezed, but they don’t necessarily need that full 47% to survive.

The real key is that the economics of the CD and album are changing.  The labels are trying to take that larger cut and get nearly the same amount because they’re still focused on a CD-album based set of revenues, and replicating that in the online world.  To them, buying a single on iTunes is like a lost album sale.  The labels will need to adjust their biz model to the fact that albums are not necessarily going to be the standard sales unit any longer.

Filed by Derek Slater at 1:33 pm under General news
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Hopefully, you know about the Wired/CC concert with David Byrne and Gilberto Gil.  That by itself is a great step for CC.  But it gets better:

“Next month, songs by the Beastie Boys, David Byrne and 14 others will appear on a compilation CD whose contents are meant to be copied freely online, remixed or sampled by other artists for use in their own new recordings. “The Wired CD: Rip. Sample. Mash. Share.” was compiled by the editors of Wired magazine, of San Francisco, as an experimental implementation of a new kind of intellectual-property license called Creative Commons. About 750,000 copies of the disc are to be distributed free with the magazine’s November issue. The disc also will be handed out to audience members at a benefit concert by Mr. Byrne and others tomorrow night in New York.”

To me, this is huge.  It’s an amazing list of artists that will help expose a large audience to CC.  I know Wired has featured CC before, but it hasn’t ever shown CC in action so clearly.  It’s another step away from the margins and towards broader, more mainstream acknowledgement and acceptance.  It’s also great to see an organization like Wired work jointly with CC on something like this.

Filed by Derek Slater at 10:27 am under General news
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Apple threatened the ISP-host for and creators of iPoddownload, a plug-in that allows users to transfer songs from any iPod to their iTunes library.  Typically, iPods are tied to only one iTunes library in order to limit sneaker-net piracy.  (via MacMinute and Paidcontent). 

Macworld helps put this in perspective, noting Apple’s other attempts to shut down iPod and iTunes software developments that could aid piracy.  Similar to Sony before it, Apple can’t figure out whether it’s a tech company or a music industry appeaser (Sony, of course, is actually a content creator).  As a tech company, Apple would be striving to make the most useful products possible.  But, when working with the music industry, Apple has decided to limit its product’s uses.  It doesn’t matter that, for instance, people with more than one computer would find something like iPodDownload very useful.  Because it could be used for infringing uses, it shouldn’t be used at all.

Meanwhile, Microsoft makes its pitch to aid copy-protection via Longhorn and reap the license fee rewards.  While MS and Apple and others duel to make the least useful products, we too rarely stop to think: is it all worth it? Is all this just socially wasteful?

Filed by Derek Slater at 3:32 pm under General news
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Read Ed Felten’s recent post on DRM and the comments - make sure to read Cypherpunk’s comment and follow-up with this Unlimited Freedom post. 

Cypherpunk clearly has a point here that you at least have to take these questions seriously in the abstract: If DRM prevents piracy, do its potentially socially harmful effects make it not worth it on balance?  If DRM+DMCA prevents piracy, same question.

It is imaginable that we’d all be, relatively speaking, better off with lessened fair uses, for instance, but also less piracy.  In the abstract, the answer to the questions on DRM are not so clear.  This question could really be further abstracted to: is copyright’s role in incentivizing authors worth it on balance given its socially harmful effects (e.g., monopoly-like effects, harm to follow-on creators, etc.)?  If you think this question is worth considering, then so is the above.

At the same time, when looking at the question in practice, I think the answers get a bit clearer, particularly with respect to the DMCA.  Today, DRM and the DMCA do roughly zero in preventing infringement.  I have discussed elsewhere (in draft form) two scenarios in which DRM might play an effective role. In the “Speed Bumps” approach, DRM and the DMCA might be ineffective or simply not meaningfully beneficial while causing harm.  The “Technological Lockdown” approach might also be ineffective, and it would be grossly more harmful and draconian.

In any case, I doubt Dan Burk would disagree with Unlimited Freedom/Cypherpunk on the abstract point.  In fact, he and Julie Cohen have considered it in great detail.  They suggest that we should place legal limits to curb the socially harmful uses, while allowing the identified socially beneficial uses to continue.

But: does DRM really do much harm?  Unlimited Freedom/Cypherpunk and Branden Cox don’t speak directly to this, but they do implicitly make some judgments on this score.  Branden Cox seems to say that it would be preferable to let copyright owners control uses through DRM and license them as they choose.  In his comparing IP to physical property and the workings of contract law to DRM, Unlimited Freedom/Cypherpunk implies that granting these broad entitlements is beneficial. Tom Bell has made such an argument with regard to DRM’s impact on fair use, and we saw glimpses of this argument in the Bridgeport decision. 

Though Unlimited Freedom/Cypherpunk writes that with regard to DRM, the “blogging world … all too often betrays a complete ignorance of economic effects,” this is hardly an open and shut economic question.  As Mark Lemley explains in great detail, there are many things economically wrong with treating copyright just like physical property.  Contra Unlimited Freedom/Cypherpunk, copyrighted products are public goods, and they don’t stop being public goods when wrapped in DRM; we should recognize how the public good character might change our approach.  Neil Netanel also cogently attacks the “neoclassical” approach to copyright, arguing that it ignores copyright’s important role in contributing to a democratic society.

If you accept that DRM has socially harmful uses, we could take many approaches to curtailing them.  Again, this is not in conflict with taking seriously the questions this post began with.  We could, as Burk and Cohen do, condition use of DRM on allowing certain uses. Tom Bell even suggests that copyright holders be forced to exit copyright and only receive contract law protections for DRM and contracts that control more than copyright allows.   Or, we could simply allow DRM but remove the DMCA, as Felten suggests and I agree with. John Mitchell, a keen DRM-critic, suggests numerous beneficial uses for DRM, and I think those should be allowed to develop in the marketplace; however, the DMCA provides so little in terms of meaningful benefits and so much clear harm that it should be removed.  That would go a long way to protecting legitimate uses impaired by DRM.  Also, I agree with Unlimited Freedom/Cypherpunk that arguments to ban certain technologies because of their potentially harmful uses may be quite knee jerk, but we ought to consider arguments about how the market might not function, like in instances of concentrated market power and limited competition.

In sum: yes, we need to consider DRM and the DMCA’s costs and benefits in their totality; however, they aren’t necessarily beneficial on net, their harm depends on your viewpoint regarding copyright’s function, their benefits in practice may differ from their theoretical ones, and these factors must also be assessed.

Filed by Derek Slater at 11:06 pm under General news
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Downhill Battle has launched “3 Notes and Runnin’,” a new project to protest the Bridgeport decision (via Techlawdvisor).  They’re soliciting 30 second songs that use the George Clinton sample.  Wonder if Clinton and Bridgeport will get upset - that suit was not the first time they’ve gone after someone. 

Filed by Derek Slater at 11:05 am under General news
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Rafat Ali dropped me a line with a question about the Tivo-Netflix deal.  Pointing to this post by Jeremy Allaire, he wanted to know about how first sale might affect licensing for online movies.  Here’s my response:

Good question. 17 USC 109 (the first sale doctrine) is even stronger for movies. Music and computer programs have limitations regarding rental; movies (and books) have no such limitations. While some video stores (e.g., Blockbuster) have entered into licensing and revenue agreements with the studios, any video store can simply buy copies of DVDs and rent/sell them to customers without getting the approval of copyright holders.

However, Jeremy is basically right in his statement: they can’t just take the content off of the DVDs and put it online. Just like we discussed with eBay, first sale only applies to the distribution right, and it only applies to lawfully made copies. Putting the songs online would implicate the right to copy, and the only clearly lawfully made copy is the DVD that Netflix owns. Also, distributing the movies via streams might implicate the public performance right.

As we have seen in the music industry, these definitional issues (copying v. distribution v. performance) can be a huge drag on license negotiations. Just as the first sale doctrine protected rental outlets in the analog world, the mechanical compulsory aided distributors of music. For the digital world, Harry Fox Agency, the record labels, and online distributors have long fought over what requires a mechanical and what falls under the compulsory. See the Section 115 hearing testimony.

We’ve seen some licensing problems with the online movie industry. Beyond the anti-trust suit against Movielink, see the Video Pipeline case, in which a licensed distributor of movie trailers was barred from putting those same trailers online.

Filed by Derek Slater at 7:13 pm under General news
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