A Copyfighter’s Musings

The folks at Yahoo! Music continue to surprise and delight.  They already have created Yahoo! Music Engine, one of the most innovative music software players (and apparently some of its designers contributed to the incredible Songbird).  Demonstrating an understanding that music sharing must be a part of the online store experience, they’re way ahead of the pack on features like playlists and boldly bought Webjay.

Now this: Yahoo! Music exec Dave Goldberg reportedly gave a talk at Music 2.0 advocating that the major labels give up on DRM.  Refreshing, isn’t it?  First off, no other music store exec has been willing to say this in public. What’s more, not every music store exec actually wants this.  Apple would keep its DRM regardless of the record labels’ decisions, and Microsoft seems pretty content to play DRM gatekeeper.  To create lock-in, they’re happy to sell customers less useful products.

I’d love to get a transcript of the talk, to see exactly what he said.  I hope Goldberg sincerely presses the record labels on this score.

Filed by Derek Slater at 1:03 am under General news
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Many online music projections focus on when/whether music “rental” subscription services, like Rhapsody, will overtake a la carte download services, like iTunes Music Store.  I wonder how much these types will blur together.

Why not pay a subcription for unlimited on-demand streams and a fixed amount of downloads per month? The streams help you decide each month what you want to keep forever.  Of course, this would work best if the a la carte prices were reduced.  It might be worth doing so if it meant keeping people from unsubscribing.

Or how about getting to stream any song in the iTunes Music Store’s catalog once (or some other small numer of times) every year, at no cost?  Keep the a la carte pricing, but, again, give the customer a way to truly try before they buy; 30 second samples aren’t enough.

Creating these services will mean significant adjustments in the way music is currently licensed to these services.  For instance, it’s unlikely that Steve Jobs wants to wrangle with publishers over subscription service pricing (though Apple is a member of DiMA).  At the same time, with Apple’s wholesale pricing arrangements running out soon, I wonder: would Jobs allow variable pricing if the record labels gave him free streaming of each song once a year?  Just a thought.

Filed by Derek Slater at 1:53 am under General news
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Another way to criticize an intuition pump, like DeLong’s discussed below, is to argue that it proves too much. 

The point of the comparison to shopping carts is to make us think that whatever intuitions apply to one case should apply to the other. So, if our intuitions say that stealing a shopping cart is wrong, using a copyrighted work without permission is also wrong - in both cases, we’re taking something away from the rightful owner.

But what about libraries?  Libraries provide free access to copyrighted works without any compensation to copyrighted works. Perhaps libraries should be shut down, and copyright holders should be able to license book-lending services under whatever terms they want.

In general, I bet (or, rather, I hope) that our first intuition about libraries is that they’re perfectly justifiable and socially beneficial.  If DeLong or others want to push us to accept their analogy to shopping carts, they should also be willing to bite the bullet and say that libraries are at best a
tolerable though unfortunate historical accident and at worst unsound
policy that must be eliminated as soon as possible; alternatively, he ought to have a clever way of distinguishing this case or clarifying his principle.  If these principles lead to ostensibly wrong conclusions, we ought reject the intuitions pumped from the shopping cart comparison.

In the context of the copyfight, this argumentative tact should be familiar to anyone who’s listened or read Lessig.  Take his talks about Google Book Search - his first key point is that the principle the publishers/authors guild offer can’t possibly be right, because it would mean that basically any use of copyrighted material should require a license.  In Free Culture, his refrain is not a proof that certain copyright holders’ views of property are necessarily wrong, but rather an explanation of how they don’t square with “our tradition” or “common sense.”

It’s worth noting that, though rhetorically powerful, this tact has drawbacks.  Most importantly, it’s not rigorous - our intuitions or traditions may turn out to be wrong. For instance, DRM allows copyrighted holders to charge for certain uses in ways they traditionally could not, but one could argue that fair use is about transaction costs; new technologies allow these costs to be overcome, and thus tradition is basically irrelevant. (On this score, it might be worth checking ut Professor Solum’s review of Free Culture.)

Filed by Derek Slater at 1:45 am under General news
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This weekend, I gave a silly, sarcastic response to James DeLong’s analogy between the case for DRM and shopping cart anti-theft devices, and, more generally, copyright and property rights.  But this sort of comparison is actually worthy of a more substantive analysis, to see precisely where it goes wrong.

Luckily, I don’t have to write one up myself.  Lawrence Solum tackled a similar comparsion provided by Eugene Volokh around two years ago.  The arguments are just as applicable to DeLong’s post.  Comparing the properties of these particular shopping carts “the ex post perspective with the essential properties of information from the ex ante perspective” is unfair. Instead, if we look ex ante at physical property like the shopping carts and copyrighted goods, we see that rivalrousness makes a difference in what we need to provide proper incentives.  What’s more, for physical property that truly lacked crowding effects and was non-rivalrous, we might regulate it differently, limiting the exclusive right, to maximize social welfare.

Read all of Solum’s post.  You might also be interested Mark Lemley’s “Ex Ante versus Ex Post Justifications for Intellectual Property.

Filed by Derek Slater at 12:46 am under General news
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James DeLong really knows how to put things in perspective, so long as you set aside the tortured economic reasoning (e.g., how are the shopping carts suddenly non-rivalrous?).  Shopping cart theft is clearly a serious problem. In various lectures, JZ has pointed out that shopping cart theft costs retailers 800 million dollars per year - I can’t find an article supports that figure right now, but Wikipedia has the same number. Meanwhile, US music sales declined a mere ~$400 million last year, which doesn’t include the revenue gained from digital sales.  I expect DeLong will soon redouble his efforts to stop the menace of offline shopping cart piracy.

Filed by Derek Slater at 7:10 pm under General news
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Too often, people use survey data to argue that the RIAA’s lawsuits have had a significant impact on downloads. After the latest AP poll, I think it’s time we treat these surveys as wholly unreliable. 

According to WIRED, “Eighty percent of the respondents consider it stealing to download
music for free without the copyright holder’s permission, and 92
percent say they’ve never done it, according to the poll conducted for
The Associated Press and Rolling Stone magazine.”

But it can’t possibly be the case that only 8 percent of Americans (~24 million) have *ever* downloaded without permission.  Over 3 years ago, an Ispos survey found that 60 million Americans had downloaded.  When Pew suggested P2P use had “sharply decline[d]” after the RIAA lawsuits began, the report concluded that 35 million adults had at least at one time been downloading.  Clearly, it’s not that downloading has decreased, but that respondents have become more reluctant to reveal potentially illicit behavior.

In turn, studies that try to monitor P2P networks, to gauge total users and traffic, are more reliable. But  it’s worth noting that these studies are also likely to underestimate the total “darknet,” as P2P users shift to other networks, small groups sharing services, IM, and other channels.  Even that ignores shifts to the sneakernet - studies have also tried to gauge acquisition through CD burning, but people can increasingly use portable and micro hard drives.

Filed by Derek Slater at 2:19 am under General news
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