A Copyfighter’s Musings

I’m here and here today.  Maybe I’ll cross-post everything over here later.

Filed by Derek Slater at 10:39 pm under General news
1 Comment

The stock article about Mercora describes why they’re legal and notes that the RIAA is still annoyed.  I’ve often followed up with posts
describing precisely why what Mercora’s doing is (probably)
legal.  Yesterday, the Mercora folks kindly explained to me a few
complexities I didn’t understand and a couple other ways in which they
tiptoe the letter of the law to deliver some quite interesting
features. They are hacking the law in the best of senses (perhaps a different one than SethF’s). 
But they also described how sometimes they deliberately weaken those
features - and thus limit potential legitimate uses - to steer
clear of any illegal territory.

You know already about how they allow people to stream on-demand by
using webcasting.  Now, Mercora allows you to record some of the
streaming content.  Under Sony, time-shifting is fair use, so the
recorders’ end is covered legally. However, under section
114(d)(2)(c)(vi), the compulsory license for non-interactive
webcasting requires that :

Translation: while it might be legal to stream in an unencrypted form
that someone can capture, you can’t help them with the capturing.  

To get around this, Mercora relies on our friends to the north. 
Apparently, Canadian copyright law has no such limitation on webcasting.  So
Mercora performed a little “copyright arbitrage.”  Mercora setup
shop in Canada, and, while you cannot record from US webcasters, you
can record from any Canadian-based webcaster on the Mercora
network.  Again, even someone in the US can do that recording,
because Sony protects the time-shifting.

Undoubtedly, this annoyed some rights holders.  For that reason,
Mercora has chosen to play it a bit conservative.  Mercora has
chosen to encrypt the time-shifted files such that they can’t be copied
or webcasted, to limit time-shifting to 20 hours of music, and to force
songs to expire after 30 days.  Mercora’s offered a feature that
is less useful than it could be in
order to avoid a secondary liability lawsuit. 

This could frustrate some legitimate use; under Sony,
it seems totally legit to time-shift more than 20 hours, and users
might also not have played back the content in that time period. So far as I can
tell and as long as their copyright arbitrage is legit, they certainly could let
people time-shift in unencrypted formats. While moving those files to a
portable player, for instance, might go beyond the protections of Sony’s time-shifting protections,
that’s not really Mercora’s concern - they’re just a software company,
they’re not making the direct infringement.  Sony probably
protects them because they’re capable of substantial non-infringing
use, but they feel they need to be careful anyway.

So here again is how secondary liability affects design choices in a
very real way.  And, of course, who’s to say Mercora’s crippled
the software enough?  I
think you can play a recorded song multiple times (please correct
me if I’m wrong), but time-shifting under Sony only allows listening once.  

What other features might companies like Mercora have to turn off if Grokster goes the wrong way?

Filed by Derek Slater at 12:30 pm under General news
No Comments

I’ll be getting up in about 7 hours to eagerly click away searching for
a decision.  If Monday really is the last decision day, and the
Ten Commandments cases are getting saved for then, then tomorrow’s the
day, right? Right?

Whenever a decision comes down, you’ll be able to find me over at EFF DeepLinks as well as on SCOTUS Blog’s special metablog for the decision, and I intend to cross-post a lot of it over here.  Via Oren Kerr comes word that Randy Picker will also be bringing together  an all-star cast to blog the decision.

Prepare to be thoroughly overwhelmed.

Filed by Derek Slater at 3:36 am under General news
5 Comments

Check out Marybeth Peters’ testimony
before the House Subcommitte on Courts, the Internet, and Intellectual
Property.  It includes a draft bill, dubbed the “21st Century
Music Licensing Reform Act,” which would repeal the mechanical compulsory license and alter the roles, rights, and obligations of rights collectives.

As you may recall, several hearings have been held on section 115 in the past.  INDUCE Act blog, Joe Gratz, and Cathy Kirkman
already have posted some thoughts on the Register’s proposal.  I’d
like to say more later, but I haven’t looked at the proposal deeply
enough to comment on its merits.  For now, I just want to point
out the nuance
here in thinking about what it means to let the free market work.

Peters wants to dispose of the compulsory license for numerous reasons,
but particularly because free market negotations would be
preferable.  But she doesn’t view the free market in a wholly simplistic
way, in which efficient outcomes would be reached if only we granted
broad entitlements and got out of rights holders’ way. Rather, in her
proposal,
she recognizes that carefully structuring and allocating rights can be
crucial to achieving efficiency.

The proposal is aimed at engineering the market to reach a particular outcome.  Its explicit purpose is
“to foster a consolidated licensing structure,” in which music rights
organizations (MROs) would act as a “one-stop shop” for performance,
reproduction, and distribution licenses.  The PROs, which offer
licenses on a  “blanket basis for those who wish to have the
freedom to perform any work within a performing rights organization’s
repertoire,” should act as a model for licensing of
reproduction and distribution rights.  Unlike under the current compulsory license, rights holders would be free to
license their works however they choose and “[n]othing obligates a
copyright owner to utilize a MRO”; however, the law would be designed
such that “the increased efficiency of [the MRO] structure provides an
incentive for them to do so, just as they have all utilized performing
rights organizations.” 

To that end, the proposal
“provides that when a music rights organization has been lawfully
authorized to license the public performance right in a nondramatic
musical work, that music rights organization is also authorized to
license the reproduction and the distribution of phonorecords of such
work, including by digital audio transmissions.” Furthermore, to remedy
conflicts regarding who should get paid for streaming, it “obligates a
music rights organization to offer, as part of its license to perform
publicly a nondramatic musical work by means of a digital audio
transmission, a non-exclusive right to reproduce phonorecords of the
musical work and to distribute phonorecords of that work by means of a
digital audio transmission, to the extent that such reproduction and/or
distribution facilitates the public performance.”

Filed by Derek Slater at 1:51 am under General news
No Comments

Today, the long tail is all the rage, and for good reason.  If you have not been reading Chris Anderson’s blog, I highly recommend you get caught up (about 70,000 words worth of catching up). 

The implications for the content industries, including music, are
profound.  No longer are people limited to what’s on the shelves
of their local Walmart, nor need they rely heavily on TV and radio to
become exposed to the newest works.  iTunes has practically
infinite capacity and the costs of distribution are slim. 
Consumers have an increasingly diverse array of tools to acquire and
become exposed to music.  Niche artists may be more able to reach
their niche audiences. Distributors may be able to aggregate those
audiences into a sizable revenue stream.  Consumers may be able to
better satisfy their tastes and enjoy a greater diversity of music than
ever before.

As Chris Anderson explains, the falling costs of storage and
distribution along with the wide variety of available music by
themselves are not enough to drive people down the tail.  Rather,
consumers need better systems for separating the signal from the noise.  Myriad recommendation systems are already emerging to do just that.

I’ve become rather excited by and begun to study a subset of these
new recommendation tools.  Through various tools and services -
including playlists, mp3 blogs, podcasts, webcasts, social networking, and small group networks, among others
- consumers are able to publish and share their own tastes with each
other.  In some cases, that means just sharing a themed list of
music; in others it means sharing a link to actual content; sometimes
it involves sharing content itself.  Beyond separating signal from
noise, these tools have other potential cultural upshots that are
worthy of particular attention.

First, these tools encourage consumer creativity. We often talk
about the wonders of remix culture, but plain old mix culture is
creative too.  Sharing tastes can be an act of self-expression. We
have probably all experienced this in the context of making mixtapes from
friends. As Rebecca Tushnet explains,
“Making a mix CD is participatory and requires judgments about value
and meaning, even if they are humble. It may express thoughts and
emotions that the CD maker feels could be fully expressed no other
way.” So too can the creation of a playlist be a creative act. 
Users can also add content of their own, for instance by adding
commentary in a blog entry or becoming the host of their own podcasted
music show.

In this way, the tools may contribute to “semiotic democracy.” 
Rather than just passively receiving music, consumers can actively
engage it, altering and adding meanings and impressions of the musical
works.  When consumers stand beside (or replace) the traditional
tastemakers, they also may diminish the control with which those
traditional tastemakers had on how we engaged music.  Consumers
can shape the prism through which they view these works.

Once they find others who have similar or at least interesting
tastes, consumers might also form niche communities on this basis. Some
users may simply tell others “great playlist!”, or they may be engage
in more involved and complex interactions.  We’re seeing a rise
not only of professional-amateur musicians, but pro-am
music critics, pro-am tastemakers.  As they become more involved
in using these tools, they may develop relationships with other
committed individuals.  To the extent the tools can create bonds
between people, the creation of these communities may have beneficial
spill-over effects into the rest of our social life, building social capital.  

Of course, one cannot ignore the rather large consumer-to-consumer
sharing elephant in the corner: P2P file-sharing.  Many have
boasted of the community-building aspects of P2P and the independent
value of the sharing that goes on there.  But those aspects
shouldn’t be exaggerated - I would be surprised if most of what happens
on P2P is more than simply dumping music into a shared folder and then
searching and downloading what one seeks.  Perhaps I am wrong. In
any case, if I am right, part of the reason P2P never evolved into a
richer experience is because we sterilized it.

My hope is that these burgeoning taste-sharing tools can help
restart a conversation about how technology can unleash a richer
musical culture. We should be celebrating what technology can do for
music.  Who could object to consumers enjoying music more,
enjoying a greater diversity of music, being more creative, engaging
music more deeply, and coming together with each other because of
music?  That’s the positive vision I’d like to explore in relation
to these tools.

Of course, the potential benefits discussed above are rather
abstract and hypothetical.  To start at a very basic level: Who
knows if people are actually interested in using these tools, as
opposed to other types of recommendation systems?  Or whether
they’re interested in interacting with each other through them? 
And many other questions.

I hope to, over time, build out those hypotheses a bit more and, to
the extent I can, gather some data to see what current usage of these
tools is like.  The data won’t be perfect, but it may be
something.  I’m intrigued to know what’s out there.

Filed by Derek Slater at 2:11 am under Big Ideas
9 Comments

Highly recommend the OECD’s new report on digital music.  You might also be interested in comments
authored by members of the Berkman Center Digital Media Project
(including myself) on the report’s original draft.  Regardless of
whether I agree with all of it, I think it’s quite balanced. Indeed,
compare two leads in news articles about the report:

Wired: “File-swapping networks alone are not to blame for the recording
industry’s woes and might plausibly be converted into legitimate
channels for distributing music, one of Europe’s most influential
economic bodies has concluded.”

Times Online: “Governments must act to reduce
piracy if media companies are to profit from the explosion of online
music, according to the Organisation of Economic Co-operation and
Development.”

Filed by Derek Slater at 8:33 pm under General news
No Comments

Ernest has a great post up
about MS moves in the subscription music arena.  Apparently, MS is
considering allowing users to re-download for free in WMA any content
they’ve acquired in FairPlay-locked iTunes Music Store format. Ernest
is right on regarding the barriers to entry created by DRM and the
DMCA, something I have also refused to shut up about.

But here’s the missing piece of this whole MS move: they’re taking on
the far less relevant half of the interoperability problem. The more
important half is gaining interop with the iPod. People want to be able
to take their WMA-locked and, in particular, their Janus-locked content
and put it onto an iPod.  This idea from MS does nothing to solve
that problem.  To do that, they’d have to get Apple to license
WMA, or come up with a Harmony-like solution, or convince record labels to license content in MP3. Are any of those likely?

Filed by Derek Slater at 10:40 pm under General news
No Comments

CDT has published Protecting Copyright And Internet Values: A Balanced Path Forward. 
In fairly typical fashion, CDT attempts to take a middle of the road
approach
simply for the sake of being middle of the road, avoiding numerous
substantive considerations and hard questions along the way.  I
largely agree with
Ernest’s must-read commentary, particularly regarding the enforcement and DRM sections.

Filed by Derek Slater at 3:24 am under General news
1 Comment

The Supreme Court delivered its decision in Gonzales v. Raich yesterday. Professor Solum’s posts are a good place to catch up; SCOTUS blog
has also been all over it, with too many posts to link.  To
(over)simplify: it was to be the decision that showed that the
Rehnquist Court conservative majority was serious about its federalism principles expressed
in Lopez and Morrison and thus would apply them to “liberal” causes, too.  Instead, it seems to have rendered those opinions merely symbolic, greatly limiting their key tenets.

As you might recall, the petitioners in Eldred positioned their case in line with Lopez.  If
reading the commerce clause as limitless is wrong, then reading the
copyright clause as limitless is equally so. There was incongruity
between the cases - for one, Lopez dealt with states rights - but this underlying principle was still at the heart of both.

When Eldred came down, Professor Lessig questioned whether the “silent five” was truly committed to the principle in Lopez.  Mark Raich as an apparent answer in the negative.  At least, the five in Lopez did not really share a unified consensus on what the principle was.

Filed by Derek Slater at 3:06 am under General news
No Comments

Via Postplay comes this article
from News.com about Mercora’s new web-based music search tool. 
Let me counter a bit of the hype: in terms of Mercora’s core features,
this is unremarkable. It is merely a web-based version of the existing
Mercora software.  The ability to search for and instantaneously
play particular artists or songs is already available through the
Mercora client. As in the software client, you can only access content
that is at that very moment being streamed by one of Mercora’s
users.  All this does is allow you to do so through a web
browser after you’ve already installed the Mercora software.

Though SoundExchange’s John Simson states that they’re evaluating the
legality of the new web-based service, the legal questions appear no
different than for the software client. Mercora can provide these
on-demand streams in a lawful way by ensuring that each individual
user is following the DMCA guidelines
for non-interactive webcasting. So far as I can tell, Mercora violates
no law regarding on-demand streaming because they are not actually the
ones streaming. They’re just providing a search engine for songs
currently being streamed by the myriad individual Mercora users. 

This feature is fairly cool, at least for popular content.  Even
though there are plenty of Mercora users with rarer tracks, the rarer
the content the more unlikely it is to be webcast at the moment you
want it.  Also, streams through Mercora can sometimes be slow and
of unreliable quality.

News.com suggests that Yahoo! or other music stores might enter this
arena, and that makes some sense. Rather than streaming mere 30 second
clips, music stores could allow customers to try out whole songs before
they buy them.  Mercora currently provides links to Amazon if you
want to purchase a song you’re currently listening; such a feature
would be much more powerful if folded directly into a music
store.  Of course, this assumes that most consumers remain purely
in a pay-per-download mode.  The more consumers shift over to
on-demand services like Yahoo!’s and Rhapsody, the more these on-demand
Mercora webcasts become irrelevant; in terms of quality and reliablity,
Mercora’s on-demand streams are certainly inferior. You might sometimes
be able to find a
stream on Mercora that you can’t find in Yahoo!’s music store catalog,
but that only makes this a worse fit for the music stores, because then
the streams can’t drive people to purchases  Then again, Rhapsody
and Yahoo! both have radio stations with content that can’t be found in
their on-demand streaming and downloads catalog, so, in that light,
including a feature like Mercora might still be worthwhile.

Filed by Derek Slater at 1:48 am under General news
3 Comments

Is this NPD Group survey consistent
with any other similar research?  WinMX on top seems a little odd;
has there been an upward trend for them in any other studies?  As
Paul Resnikoff points out,
the survey excluded eDonkey, eMule, and BitTorrent, so on that level
alone the study seems fishy.  Plus, NPD’s conclusion is rather
overstated. Yes, more and more people are trying out iTunes, but are
they becoming long-term customers? How do the total number of
transactions on iTunes compare to the swaps made on the P2P networks?
Through that lens, there’s still no comparison.

Filed by Derek Slater at 4:10 pm under General news
1 Comment

So I was quite pleased to see that Rhapsody had added M.I.A’s Arular
recently released by Universal.  They had previously released the
version available from Beggar’s Banquet, but the tracklistings are a
little different.  I had been listening to the album for a few
weeks, when, today, I noticed that I can no longer play ”URAQT”
off the Universal release, and that the single version is only
available for sale and not for streaming.  Same goes for “Bucky
Done Gone”, though I can play it off the Beggar’s Banquet
release.  What gives?

This is not entirely uncommon in Rhapsody.  For instance, The Streets’ A Grand Don’t Come for Free was previously available for streaming as was Garbage’s new Bleed Like Me.  Both are now for sale only. 

It’s bad enough that the catalog lacks many albums that I
want.  It’s bad enough when particular tracks on albums
cannot be streamed.  It’s far worse to pull those
songs once I’ve already become accustomed to having access. 
Rhapsody says I get access to over one million songs and growing, but
apparently they can’t even guarantee me that the catalog won’t shrink
in the future.

Filed by Derek Slater at 6:06 pm under General news
5 Comments

As part of a history class I took this semester (with KC Johnson, who you may know from Cliopatria), I decided to do a little research on Wheaton v. Peters,
the Supreme Court’s first copyright decision, which rejected a
copyright claim under common law and ruled that obtaining a copyright
was dependent on strictly following the federal statute’s
requirements.  In so doing, it essentially rejected a natural
rights view of copyright.  While scholars have often treated the
case as embodying anti-monopolistic sentiments about copyright at that
time, it has not been entirely clear to me why the Court  followed
this view. 

One way of attempting to answer why the majority in Wheaton reached its result is to focus on the opinion’s author,
Justice McLean, and how he treated monopolies in other cases. A
biographer of McLean does not devote a word to Wheaton, but at least
one scholar has deemed Justice McLean’s opinion in Wheaton “Jacksonian” in its handling of monopolies. Just three years after Wheaton in Charles River Bridge v. Warren River Bridge,
the Court ruled that monopoly charter grants must be strictly construed
in the public’s interest. This case would come to define the way the
Court limited monopolies in various arenas over the next several
decades.

To explore what drove Wheaton, I drafted a short paper on the subject comparing Justice John McLean’s concurring opinion in Charles River Bridge and his opinion in Wheaton. This
draft is pretty rough, but it reaches some interesting, though
admittedly tentative, conclusions - so, I figured I’d put it out
here. Ultimately, I think the comparison demonstrates that
McLean’s anti-monopoly stance was not related to the broader
anti-monopoly issues at stake in Charles River Bridge; deeming it Jacksonian in that sense is improper.  What’s more, McLean’s views in Wheaton may have in part been connected to his views on federalism and separation of powers.   All comments are most welcome.

[updated 10:13]

Filed by Derek Slater at 5:23 pm under General news
No Comments

Ernest’s blogstorm continues, which means this post
is already buried on the page.  It raises an interesting issue,
one I hope to say more about in the future once I’ve thought a bit more, but I feel like talking it out a bit now.

Ernest first repeats a point he has made many times: “I oppose
copyright infringement via filesharing services and council against
it.”  The lawsuits are a legitimate piece of any voluntary
licensing, market-based system, and penalties must be higher than the
actual harm in order to act as a deterrent.

But he then states that the music industry is in part responsible for
file-sharing: “The RIAA is partially at fault for making the original
Napster so
attractive because there were no real legitimate avenues to meet
customer’s wants…. [A]nyone could have predicted that without
legitimate avenues to download
music, more people would use illegitimate avenues. This is not
rationalization, not justification, merely acknowledging the facts.”

There’s a deeper point there, beyond allocating fault. 
Undeniably, Napster and file-sharing generally have put pressure on the
music industry to license legitimate online services, driving the
competition and improvements in services we’re only starting to see
now.  In pushing along this competition and in particular by pushing
prices lower, one could argue that this leakage in the copyright system
has helped check the deadweight loss caused by the monopoly
grant.  One cannot prove the counterfactual - who knows what would
have happened without Napster.  Regardless, we can recognize the
constructive role file-sharing has played.

With respect to this constructive role, it’s also worth setting it
within the context of a broader viewpoint about copyright: a leaky
copyright can be a good copyright.  That’s not just the case in
file-sharing.  It’s a crucial aspect of fair use.
Allowing copying and copying technologies ultimately can help create
new markets for copyrighted works, provide people with greater access,
more flexibility and more enjoyment in how they use copyrighted works,
and in total improve social welfare.  If the screws of copyright were
tighter, if it did not leak in this way, we wouldn’t realize this
flood of benefits from various copying technologies.

But turning back to file-sharing specifically: can we reconcile the
constructive role its played with Ernest’s first point?  That
is, can we a) acknowledge this constructive role while b) opposing
widespread infringing file-sharing.  A reconciliation could start
by noting that the (a) is descriptive of the entire system, while (b)
relates to the message we project to individual file-sharers.  It
may be a good thing that their activity is leading to more features and
lower prices in legitimate services, but they cannot use that as a
basis for justifying their own behavior.  Justifying it in this
way would form a seemingly boundless basis for infringement, leaving no
clear legitimacy for lawsuits in any context - at what point do prices
and features become good enough that infringement would no longer be
justifiable? and how would that point be determined in a non-arbitrary
way? (Ernest made this argument in a different way many months ago.)

This separation between (a) and (b) is imperfect.  Underlying (B)
is an assessment that the constructive role played by
file-sharing is ultimately countered by many ill-effects.  Perhaps
a part of the reconcilition is a sense that, whatever may have been the
meritorious effects of file-sharing during Napster’s birth, now
competition in legitimate services can become good enough that it’s
time to call off the dogs.

Filed by Derek Slater at 3:54 pm under General news
3 Comments