A Copyfighter’s Musings

At the Berkeley DRM conference, Lon Sobel presented this proposed alteration of copyright to make the ISP a “digital retailer.”  Well, it’s not really an alteration of copyright. It’s a business model with a very weak statute attached to it.  Here’s the legislative part of it:

“Copyright owners would be obligated, by statute, to permit the copying and redistribution of their works…. [F]or watermarked and fingerprinted works, ISPs would be obligated, by statute, to pay the royalty charged by each work’s copyright owner. This proposal amounts to a statutory license (because it authorizes copying and redistribution of copyrighted works, without negotiated licenses from copyright owners). But it’s a two-edged statutory license: it authorizes the use of copyrighted works, but also requires ISPs to pay royalties at whatever rates are set by copyright owners.”

So, what’s going to make the copyright holders license their works?  Sobel indicates at the end of the proposal that he doesn’t mind that copyright holders will have no impetus to license their works.

Nor does he give a lot of firm numbers on how much each download would likely cost; I’d like to see some sort of projections.

Dan Gillmor has significantly more scathing remarks here (that post has all of his Berkeley DRM conference notes). He points out that having ISPs track what we read/hear/watch is more than just a small invasion of privacy.  Also, he notes: “Given that in a broadband world there will be just a couple of ISPs — namely the cable and phone companies, given the way the government is giving them absolute rights to control content on their pipes — do you suppose your friendly cable and phone monopoly will not choose to charge you substantial extra money?”  What occurs to me after reading that is, what about wireless?  What happens if I’m sharing someone’s connection? (Note: as someone has mentioned, this is also a problem with Professor Fisher’s plan, although he states that tax revenue could come from places other than ISPs if necessary.)

I would also like to point out that Sobel makes some incorrect assessments of Fisher’s plan as far as I understand it.  He writes, “[Fisher’s] “Tax and Royalty System” does not seem to contemplate the creation of new versions; it would simply authorize copying and redistribution. This means the “Tax and Royalty System” protects copyrights somewhat more than the [Netanel’s] “Noncommercial Use Levy,” because the “Tax and Royalty System” leaves more control in the hands of copyright owners, namely, the right to license the creation of new versions of their works, on terms agreed to in private negotiations.”

That is bogus – Fisher says that we would ditch copyright after the implementation of his plan. You can make all the derivative works you want.

Other stuff that’s been interesting:

Dan Gillmor notes IBM’s Bob Blakley discussing some of the negatives for producers’ using DRM. Gillmor scribes: “DRM can raise inventory costs, he says. Example: controls by country. Mass customization isn’t perfect, either, he says. Raises costs and can actually encourage piracy. It can add life-cycle costs when things fail, because users will call” (Gillmor’s notes, not necessarily Blakley’s words).

I’ve always heard about how price discrimination via DRM will be so great for producers and how private ordering isn’t as great as we might think (at least, that’s what I think this article from Yochai Benkler is saying).  I’ve never heard about using DRM to price discriminate could be bad for producers.

Also note the interesting conversation by someone from Microsoft, Dave Farber, and Lucky Green about trusted computing. Those three really do represent the spectrum.

Filed by Derek Slater at 3:08 pm under Big Ideas
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