A Copyfighter’s Musings

Will try to link up if/when the article becomes publicly available. Coolfer has the scoop — here’s an excerpt:

“What I propose is an aggressive six-month trial by a major P2P service (any takers?) that could finally give us clear insight into the behavior of P2P users. Is it about interoperability, community and deep catalog, or is it all about free? We need to know.

“Here’s how it would work: Leave the service exactly as it is: no filtering, no DRM, no changes to its current offering of unprotected MP3s. The rare tracks, bootlegs-they all stay there. Just charge for each piece of content and split the revenue between the service and the content owners.

“Yes, I know. Deals aren’t in place with labels and publishers. Some content out there (bootlegs, etc.) isn’t ‘cleared,’ and yes, it might keep some accountants working overtime. But wouldn’t it be better to figure out how to allocate all the revenue than not to have it at all? For the ‘gray’ content, I suggest labels consider a 50/50 percentage share with the artists, obviating arguments on who owns it.”

Filed by Derek Slater at 11:55 am under Uncategorized
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I wrote an editorial for TomPaine.com about the FAIR USE Act:

“The punishment should fit the crime,” but copyright law’s harsh penalties don’t match up with this maxim, and the entertainment industry has taken full advantage of that in its misguided war on new technologies. A bill recently introduced in Congress would help address this imbalance and add crucial protections for the rights of innovators and fans.

Just last week, Viacom sued YouTube and Google for hosting allegedly infringing videos uploaded by users, and nearly every news headline highlighted the one billion dollars in damages that the entertainment company is seeking. In fact, the suit declares that figure as a floor, not a ceiling—the penalty could be billions higher if the suit is successful, even without Viacom proving that much actual harm.

The threat of so-called “statutory” damages hangs over the heads of technology creators of all stripes, not just YouTube. Reps. Rick Boucher and John Doolittle have introduced the FAIR USE Act of 2007 to limit this draconian penalty and provide innovators with some much-needed breathing room.

Read the whole thing here.

Filed by Derek Slater at 12:41 am under Uncategorized
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Sherwin Siy nails the bottom line on the Cablevision remote DVR decision — why should it matter whether customers store their DVRs at home or with Cablevision? There’s an artificial product-service distinction here, and the judge doesn’t clarify exactly why or how the law supports it. Bill Patry has a nice analysis of what’s lacking in the judge’s arguments.

The more I thought about the copying issue, the less clear it was to me — here are some rough notes:

One of things that caught my eye was the court distinguishing Netcom, in which a court held that an ISP and bulletin board provider was not directly infringing. The judge says that Netcom was “premised on the unique attributes of the Internet.”

This reading was notably rejected as an “overstatement” in CoStar, in which the court held “more must be shown than mere ownership of a machine used by others to make illegal copies;” instead, “the Copyright Act require[s] some aspect of volition and meaningful causation.” The Cablevision judge never really addresses this framing head-on.

The court declares that Cablevision is playing an “active” role in the copying of TV shows, and it thus is more like a copyshop clerk who copies a book on behalf of a customer, rather than simply providing machines for the customer to use himself. But no Cablevision employee hits the record button; the user is in control of what gets recorded.

The court highlights Cablevision’s “on-going participation” — it houses the system, monitors it, repairs it, and has a continuing ability to control it. These are all issues that would typically come up in the secondary liability context, but how they necessarily matter in terms of direct infringement isn’t clear to me. Kinkos performs all those functions too, after all. The sophistication of the technical system shouldn’t be determinative.

The court also points out that Cablevision supplies the content to be copied and has “unfettered discretion” over what particular content may be recorded. Now imagine a bookstore in which a fixed set of books on shelves were provided alongside photocopy machines. It too has “unfettered discretion” over what content will go on the shelves. The bookstore maintains the machines and even provides staff that will retrieve books for patrons. A customer gets a book and then copies it — is this so different from the Cablevision case?

Filed by Derek Slater at 9:15 pm under Uncategorized
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What refreshing honesty — at least, that’s what this appears like based on Geist’s summary. I still haven’t been able to watch the video for myself.
Nearly a decade after the DMCA passed, both empirical evidence and the insights of the Darknet paper convincingly demonstrate that the DMCA+DRM cannot stop or even slow “Internet piracy.” Yet DMCA defenders so often ignore this, or, instead, turn it into a reason to ratchet up copyright’s restrictions through DRM mandates, harsher secondary liability rules, mandatory filtering by Internet intermediaries, and so on.

I find this stay-the-course mentality completely confounding, and I’m glad that even Bruce Lehman appears to agree. I don’t think we’re in a “post-copyright era,” but it is long past time for a better way forward.

Filed by Derek Slater at 6:16 pm under Uncategorized
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Hollywood’s desire to force DRM on TV fans doesn’t stop at the U.S. border — an international consortium of television and technology companies is devising draconian anti-consumer restrictions for the next generation of TVs in Europe and beyond, at the behest of American entertainment giants.

EFF is the only public interest group to have gained entrance into the secretive meetings of the Digital Video Broadcasting Project (DVB), a group that creates the television and video specifications used in Europe, Australia, and much of Asia and Africa. In a report released today, we show how U.S. movie and television companies have convinced DVB to create new technical specifications that would build digital rights management technologies into televisions. These specifications are designed to give content providers a veto over innovation and take away consumers’ rights to make legitimate uses of lawfully acquired digital television content.

Consumers would never choose this future, so Hollywood will try to force it on them by regulatory fiat. In the US, the studios have wielded the DMCA against innovators and fans, worked to foist DRM into pay TV systems, and lobbied hard for a broadcast flag mandate for over-the-air TV. Hollywood’s strategy overseas is patterned after its work here in the US, and DVB is now developing technical standards that are intended to serve as the basis for legal regulations that will force device manufacturers to use DRM.

As a condition of participation, DVB imposed restrictions on our ability to report on these meetings. Now, after key parts of DVB’s new DRM specification have been sent to the European standards body and may soon be provided to other EU regulators, we are releasing this briefing paper to summarize and expose Hollywood’s plan.

As a condition of participation, DVB imposed restrictions on our ability to report on these meetings. Now, after key parts of DVB’s new DRM specification have been sent to the European standards body and may soon be provided to other EU regulators, we are releasing this briefing paper to summarize and expose Hollywood’s plan.

Read our analysis here.

(Cross posted from DeepLinks)

Filed by Derek Slater at 3:18 pm under Uncategorized
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