Jim Griffin has been telling everyone to “monetize the anarchy” for essentially the entire decade. This solution was on the table dating back to Napster. The idea has long percolated within the entertainment & tech community (read: the pholist). Many, many others contributed to its development, including academics Terry Fisher, Neil Netanel, and Jamie Love (focusing more on a compulsory version), as well as organizations like EFF and the Berkman Center. I remember FMC’s Walter McDonough at the Berkman-Gartner Digital Media Conference in 2003 saying something to the effect of, “We all know we’re headed towards collective licensing anyway, right? Why can’t we just admit it?”

And yet for so long it seemed like this win-win solution would never truly break into the mainstream, including the major record labels. For awhile, many recoiled at the mere mention of collective licensing. (At the extremes were folks like Jim DeLong and Patrick Ross from PFF, who compared it to a “socialist gulag” and called it a “terrifying model.”)

Jim Griffin’s hiring suggests that voluntary collective licensing is finally getting the attention and investment from key rightsholders that it so richly deserves. It’s a good day for rightsholders, artists, innovators, and music fans. Hopefully, this is just the beginning….

Feb. 13, 2008, Google Public Policy blog: “Here in Canada, where there is an ongoing debate about how to best implement the WIPO Copyright Treaty, Google has joined with a number of other Canadian and international companies who have a shared vision of balanced copyright. The Business Coalition for Balanced Copyright has issued a two-page position paper calling for a ‘balanced ‘package’ approach for a strong Canadian copyright regime.’”

Feb 13, 2008, Michael Geist: “Canadian DMCA on Hold?”

Stay tuned….

As we’ve discussed before on this blog, innovation has thrived online because the Internet’s architecture enables any and all users to generate new ideas and technologies, which are allowed to succeed based on their own merits and benefits. Some major broadband service providers have threatened to act as gatekeepers, playing favorites with particular applications or content providers, demonstrating that this threat is all too real. It’s no stretch to say that such discriminatory practices could have prevented Google from getting off the ground — and they could prevent the next Google from ever coming to be.

While regulations on certain types of discrimination is one way to help preserve the Internet’s openness, other remedies including expanding broadband competition and market-based initiatives may be important complements. Rep. Markey’s legislation sets a sound course towards properly putting all the options on the table, by adopting the proper general principles and asking the FCC to address the right kinds of questions.

As important, Internet users themselves will get a chance to answer those questions. From the start, the heart and soul of the movement for net neutrality has been the grassroots — the thousands and thousands of ordinary Americans who have already spoken up for Internet freedom on sites like Save The Internet and beyond.

Net neutrality is too often painted as just about particular companies’ competing interests, but that’s missing the point. Rather, net neutrality and broadband policy are — and should be — about what’s ultimately best for people, in terms of economic growth as well as the social benefit of empowering individuals to speak, create, and engage one another online using the wide panoply of innovations available to them. In other words, broadband policy should come from the bottom up.

(Cross posted from the Google Public Policy Blog)

Broadband deployment in the U.S. is at best disappointing and at worst a crisis. The United States lags behind other countries in broadband uptake per capita, ranked 15th in the latest Organisation for Economic Co‐operation and Development (OECD) data. While consumers in Sweden and Japan are starting to zoom ahead with 20 and even 90 megabit/second connections delivered over fiber connections, U.S. consumers pay more for less, with only DSL and cable available in most markets. Some rural areas lack broadband altogether.

At a pre-conference yesterday before the “State of the Net” in Washington, D.C., the nonprofit association EDUCAUSE released a thoughtful proposal for how to achieve a better broadband future:

“[T]his paper proposes the creation of a new federal Universal Broadband Fund (UBF) that, together with matching funds from the states and the private and/or public sector, should be used to build open, big broadband networks of at least 100 Mbps (scalable upwards to 1 Gbps) to every home and business by 2012. U.S. state governors and foreign heads of state have found the resources to subsidize broadband deployment; the U.S. federal government should as well.”

Though some dispute how bad U.S. consumers have it, everyone can agree that the U.S. can – and should – do much better. Deploying faster, universal, and ubiquitous broadband is essential to sustaining the Internet as an engine for economic growth, innovation, and social discourse. Whether or not one agrees with EDUCAUSE’s particular strategy, the paper demonstrates that a clear, concerted national broadband strategy of some kind is required to reach that bigger, better broadband future.

You can read the whole paper here. I took notes at the conference, including the opening remarks of FCC Commissioner Michael Copps, which you can read here.

I would’ve been thrilled to see this when I was a student, and I’m thrilled that it exists now. It’s a fantastic opportunity for any aspiring tech policy geek. Check out the site for more details.

She recently sent me a new article, “Semiotic Disobedience,” which she’d appreciate feedback on.

“In this Article, I seek to introduce another framework to supplement
Fiske’s important metaphor: the phenomenon of “semiotic
disobedience.”Three contemporary cultural moments in the world - one
corporate, one academic, and one artistic - call for a new understanding
of the limitations and possibilities of semiotic democracy and underline
the need for a supplementary framework. As public spaces have become
converted into vehicles for corporate advertising - ads painted onto
sidewalks and into buildings, schools, and other public spaces - product
placement has soared to new heights of power and subtlety. And
throughout, the law has generously offered near-sovereign protection to
such symbolism through the ever-expanding vehicle of intellectual
property protection. Equations between real property and intellectual
property are ubiquitous. Underlying these themes is a powerful linkage
between intellectual and tangible property: as one expands, so does the
other….
“Just as previous discussions of civil disobedience focused on the need
to challenge existing laws by using certain types of public and private
property for expressive freedoms, today’s generation seeks to alter
existing intellectual property by interrupting, appropriating, and then
replacing the passage of information from creator to consumer. This
Article suggests that the phenomenon of semiotic disobedience offers a
radically different vantage point than Fiske’s original vision, one that
underlines the importance of distributive justice in intellectual
property. Thus, instead of interrogating the limits of First Amendment
freedoms, as many scholars have already done, I argue that a study of
semiotic disobedience reveals an even greater need to study both the
core boundaries between types of properties - intellectual, real,
personal - and how propertization offers a subsidy to particular types
of expression over others.”

Of course, it goes without saying that I’m going to really miss working at EFF with my copyfighting and freedom-defending colleagues. I have been so lucky to work with and learn from such an amazing, talented, and devoted group of people. It has been, quite literally, a dream come true.

So you won’t see my EFF cross-posts here any more, but please do keep hitting up DeepLinks and the Action Center for the latest in the fight for your digital rights.

But what the world of unencrypted music giveth, DRM-locked media taketh away. DRM allows media vendors to restrict your fair use rights so that they can be sold back to you piecemeal as “features.”

The latest example: Apple’s announcement that you can now create ringtones of DRM-locked iTunes-purchased music. Apple will only let you convert those tracks to ringtones if you pay another dollar, and, just as you can only move iTunes DRM restricted tracks to the iPod and not other portable players, these ringtones only work on the iPhone. If you’d rather create your own ringtone using a tool like iToner, too bad — the DRM won’t let you, and circumventing the lock could violate the Digital Millennium Copyright Act (DMCA).

Imagine if this is how the CD world had worked. Your investment in CDs has paid all kinds of dividends over time because third parties could freely enable novel personal uses, like ripping MP3s and moving them to a portable player of your choice. Innovators didn’t need to beg copyright holders’ or record stores’ permission first in order to help you get more from your music collection.

DRM can take away that freedom and the innovation it enables, as rights holders and vendors can block new tools outright and make you pay again and again to use music you’ve already purchased. Restricting compatible players and the creation of ringtones is just the tip of the iceberg.

(As we pointed out earlier, Apple is also apparently trying to frustrate turning unencrypted songs into iPhone ringtones using iToner. Will Apple try to use the DMCA to squash this legitimate use as well? Time will tell.)

(Cross-posted at DeepLinks)

This bill goes even further than the prior bill in that it would ratchet up statutory damages in certain instances. Under copyright law, copyright owners don’t need to prove that they have been harmed in order to get damages and can instead elect to get statutory damages, which a court can set between $750 and $30,000 per work infringed. Such disproportionate penalties can be especially dangerous when it comes to lawsuits against mass-market products like the iPod or TiVo that enable the making of thousands of copies.

H.R. 3155 makes matters worse by allowing a judge to dole out damages for each separate piece of a derivative work or compilation, rather than treating it as one work — for example, copying an entire album could translate into damages for each individual track, even if the copyrights in those tracks aren’t separately registered.

This is particularly unfair because record labels register entire albums as single works principally to strip their artists of reversion rights they would otherwise enjoy if the songs were registered individually. (As some may remember from the 2000 flap over a stealthy RIAA amendment slipped into the Copyright Act, record labels register albums as “compilations” or “collective works” in an effort to characterize them as “works for hire,” which are owned outright from their creation by the labels, and thus can never revert to the artist.)

Let’s hope this bill meets the same fate as last year’s DoJ proposal and is stopped dead in its tracks. Take action now to stop it, and make sure you also support the FAIR USE Act, which would put much-needed limits on statutory damages.

(Cross posted from DeepLinks)

We won this battle in Congress, but we’re not out of the woods yet. Unfortunately, the RIAA’s college lawsuit campaign rages on, and universities remain under intense pressure to bully their students and install network surveillance technologies. While some schools have implemented draconian penalties for file sharing — including one strike and you’re off the network policies — others have gone further and started blocking certain P2P tools. Meanwhile, Congress has recently been scolding and scrutinizing colleges for file sharing on their networks, and more legislation may be in the pipeline.

Indeed, Sen. Reid still did tack on another amendment that instructs schools to tell students about the possible penalties for copyright infringement. This new language is far less worrisome, but it doesn’t move the ball forward in the P2P dilemma either. While students certainly should know the potential personal consequences of file sharing, all the finger wagging in the world isn’t going to stem the tide of “Internet piracy.”

The longer this futile fight against ordinary fans continues, the more universities’ resources will be wasted, the more legitimate uses of the network will inevitably be chilled, and the more money will be left on the table. After all, tougher enforcement isn’t putting a dime in artists’ pockets, but a sensible alternative like blanket licensing would.

Hopefully, last week’s fight in the Senate will be another reason for the university community to push hard towards a better solution that gets the entertainment industry off schools’ backs, ensures that artists are paid, and lets students keep sharing. For more on this topic, read Fred von Lohmann’s Washington Post editorial, “Copyright Silliness on Campus.”

(Cross-posted from DeepLinks)

The comments were submitted as part of the FCC’s Notice of Inquiry about broadband policy. Most of the debate in this inquiry has focused around imposing “network neutrality” rules and limiting ISPs’ ability to break the Internet as an open platform for innovation by discriminating against particular content and application providers.

Remarkably, NBC’s not just asking for an exception in any neutrality regime to let ISPs block unlawful uses. And it’s not even asking for a loophole that would, for instance, let ISPs block or degrade a disruptive innovator like YouTube that has both unlawful and lawful uses. Instead, NBC is asking for mandatory discrimination.

In turn, NBC is essentially asking for the FCC to make copyright policy. The DMCA safe harbors clearly protect ISPs from liability for copyright infringement engaged in by users, subject to certain narrow limitations and without any obligation to monitor their networks for infringement.

Subverting Congress’ copyright policy would be inappropriate but not unheard of for the FCC. That’s exactly what it did — and what the courts smacked down — in the broadcast flag fight. Let’s hope the FCC simply disregards this outlandish, hail mary request from the content industry.

(Cross-posted at Deep Links)

No, this time we’re not talking about spying on telephone and Internet communications on the government’s behalf. AT&T is now kowtowing to the entertainment industry and jointly developing undisclosed technical measures in yet another desperate attempt to stop “piracy.”

On its face, this may seem reasonable, but problems arise once you start to ask hard questions about exactly what AT&T’s up to.

AT&T’s plan is currently pure vaporware, and it has stated that “once a technology was chosen, the company would look at privacy and other legal issues.” In other words, the AT&T Internet traffic cop appears poised to shoot first, and ask questions about the impact on your civil liberties and ability to access lawful content and applications later.

There are plenty of ways that an “anti-piracy” technology could do damage to online freedom. Innovation and free speech flourish online precisely because ISPs have traditionally routed all traffic neutrally, without discriminating in favor or against particular content or applications. Will AT&T arbitrarily degrade traffic from certain applications with lawful uses (a la the Canadian ISP Rogers)? Will AT&T start peaking into its customers’ packets with filtering technology that’s bound to haphazardly restrict legitimate, lawful traffic (a la Audible Magic)? For example, will users be able to use me-to-me services and send copyrighted files to themselves, such as by uploading them to a music locker service like MP3Tunes or streaming video via the Slingbox?

And will whatever measures the telco takes meaningfully reduce “piracy”? There’s scant evidence that filtering will make a dent, AT&T’s actions will inevitably spur countermeasures, and changes in technology are making it increasingly cheap and easy to copy data in a variety of ways, both online and offline.

The bottom line is that the telco giant appears ready to serve big entertainment companies’ interests regardless of its customers’ wishes. Instead, it ought to be pushing the entertainment companies towards a better way forward that lets fans keep sharing and gets artists paid.

See also Alex Curtis’ commentary on Public Knowledge’s blog.

(Cross-posted at DeepLinks)

In fact, Windows Media Center has always obeyed CGMS-A, a DRM system that TV stations can use. Pay-per-view, VOD, and premium channels like HBO can (and do) mark programming as “Copy Once” or “Copy Never.” Tech creators are free to build DVRs and other devices that ignore CGMS-A signals and create restriction-free recordings, but Microsoft opted to kowtow to content providers and infect Media Centers with the DRM anyway. (You may recall that TiVo decided to cripple its DVRs so that they recognize a similar DRM flag developed by Macrovision.)

As if the deliberate use restrictions weren’t bad enough, obeying CGMS-A has also caused technical errors and haphazard incompatibilities. Remember Windows’ “blue screen of death,” signaling an unexpected failure? DRM creates more ways for your system to fail — your Media Center may work reliably today, but a software or hardware change could create unpredictable limitations.

According to PC World, this sort of technical problem probably led to the complaints featured on Slashdot. You can bet that this won’t be the last time customers bump up against such problems both with CGMS-A and other DRM.

It’s worth noting that the DRM can get even worse when it comes to digital cable. Media Center users can look forward to even more limits on streaming throughout their house, copying to portable devices, and other legitimate uses.

Just because Microsoft decided to obey CGMS-A doesn’t mean you have to. You can look to PC DVR alternatives, and you can make DRM-free, analog-to-digital conversions of TV content using tools like the Neuros recorder that don’t recognize CGMS-A.

(Cross-posted at DeepLinks)