Archives for the 'Copyright' Category
PFF Aspen Summit: An Important Premise Unexplored?
So I’m enjoying the high-caliber presentations so far at the PFF Aspen Summit. (Full disclosure: I spoke on the first panel dealing with intermediary liability.) But I’ve heard a couple of speakers say things that made me ask, “Where’s Mike Masnick?”
Jim Griffin of OneHouse kicked off the morning. He’s an advisor to the Warner Music Group. I didn’t write anything down, so risk mischaracterizing what he said, but one of the premises in his keynote was that creators of music and other digital content have to paid for producing that content.
Likewise, as he was setting up the second panel discussion, Tom Sydnor of PFF took it as a given that producers of copyrighted content have to paid for that production, and that the problem is figuring out how to get them paid. The premise behind this conclusion is one that should be explored.
I take it as a given that intellectual property law should promote the progress of science and useful arts. There are differences on this question, as proponents of moral rights will tell you. But taking creation of new works as the goal, what does it take to make that happen? Do creators need to be paid for their production all the time? Or can we sometimes get the benefit of their production while requiring them to earn money elsewhere, such as by bundling their creative works with other works. This is something TechDirt’s Mike Masnick has harped on for years now. He summarized his thinking to date a year or so ago in his “Grand Unified Theory On The Economics Of Free” post.
To summarize: Having fun. Good discussions. I want more! Specifically, more breadth! The economics of free is (are?) an elephant in the room.
A Boon for Copyright’s Biggest Holders?
Tim has already analyzed the decision of the Federal Circuit in Jacobsen v. Katzer, but I’d go even further than he did and say that it could broadly impact the media and software industries. Because violating a condition to copyright can avail a plaintiff to seek greater damages than breach of contract, look for copyright owners to limit the scope of a license to use or redistribute a song or a software program by making them “conditions” of the copyright license and not contractual “covenants.”
The case is good for copyright owners that use open source licenses. But the rationale of the decision is not limited to only open source. And who relies on copyright the most? RIAA and MPAA. It’s only a decision of an interlocutory appeal, but copyright holders everywhere will be reviewing their licenses after this one. My fellow tech transactional attorney friends could be busy, as what’s good for the goose is good for the gander.
The First Sale Doctrine and Copyleft
Over at Ars Technica, I cover an important decision from the Federal Circuit. For the first time, a federal appeals court has held that distributing copies of a free software product in violation of its license term is copyright infringement, and not merely a breach of conract.
I think Mike is a little bit off base here in comparing the decision to the recent “promo CD” case:
Creative Commons seems to basically do the same thing that stamping “not for resale” does on CDs: it creates a separate license on top of copyright, and then tries to use copyright’s defenses against breaking that license. The court in the Universal Music case seemed to indicate that such claims on top of copyright weren’t enforceable. But this Artistic License decision seems to say that some claims on top of copyright can be upheld.
In the Universal case, the court found that the “not for resale” language wasn’t enforceable because there was no “exchange” that resulted in the “license” (also known as “consideration” — which is usually required for US contracts to be binding): “UMG gives the Promo CDs to music industry insiders, never to be returned. … Nor does the licensing label require the recipient to provide UMG with any benefit to retain possession.” The same is true of Jacobsen’s software, as well. The software is given, never to be returned, and the license doesn’t require the end user to provide Jacobsen with any benefit in return.
I address this point in the final paragraph of my story:
Continue reading this post »
Regulation begets Regulation
Ryan does a great job of laying out the issues with the MPAA’s SOC waiver request. He makes two key points—that the FCC shouldn’t be telling cable companies what to do with their networks, and copyright law shouldn’t give the MPAA veto power over the design of technological devices. Ryan spends most of his time arguing the first point, but I think the second point is the really important one.
The thing to understand about DRM is that it’s less a encryption technology than (as Ed Felten puts it) a hook on which to hang lawsuits. Every DRM standard of any significance has been broken within months of its release. Without the DMCA on the books, many consumer electronics manufacturers would simply ignore DRM, reverse-engineering the relevant standards and producing devices that accept DRMed content and convert it to open formats. Knowing that this would happen, Hollywood would long since have given up trying to produce the kind of end-to-end DRM that’s at issue in these proceedings.
Which means that the existence of the cable industry’s Selectable Output Control powers is almost entirely a consequence of bad government policy. In a free market, I’d be able to go down to my local Best Buy and purchase $50 box that would take an HDCP input and output the content in a variety of non-encrypted formats. Such a box is unavailable only because Congress—at the behest of the MPAA—made producing it a felony. That, not anything the FCC has done, is the fundamental issue in this controversy.
Now, it makes me uncomfortable to have the FCC dictate how the cable industry runs its network. But I think the fundamental point that needs to be emphasized is that regulation begets regulation. That is, given that the DMCA has screwed up the consumer electronics industry, it’s not surprising that a lot of people want the FCC to step in to minimize the damage. The solution is to repeal the DMCA and let the free market work. But until that happens, I’m not going to get too outraged at Public Knowledge for asking the FCC to prevent the MPAA from abusing its government-granted veto power over the design of consumer electronics devices. I don’t agree with their solution, but I think their heart is in the right place.
Under-Appreciated Existing Legal Remedies for Trolling, Defamation and Other “Malwebolent” Invasions of Privacy
Anyone interested in the long-running debate over how to balance online privacy with anonymity and free speech, whether Section 230’s broad immunity for Internet intermediaries should be revised, and whether we need new privacy legislation must read the important and enthralling NYT Magazine piece “The Trolls Among Us” by Mattathias Schwartz about the very real problem of Internet “trolls“–a term dating to the 1980s and defined as “someone who intentionally disrupts online communities.”
While all trolls “do it for the lulz” (”for kicks” in Web-speak) they range from the merely puckish to the truly “malwebolent.” For some, trolling is essentially senseless web-harassment or “violence” (e.g., griefers), while for others it is intended to make a narrow point or even as part of a broader movement. These purposeful trolls might be thought of as the Yippies of the Internet, whose generally harmless anti-war counter-cutural antics in the late 1960s were the subject of the star-crossed Vice President Spiro T. Agnew’s witticism:
And if the hippies and the yippies and the disrupters of the systems that Washington and Lincoln as presidents brought forth in this country will shut up and work within our free system of government, I will lower my voice.
But the more extreme of these “disrupters of systems” might also be compared to the plainly terroristic Weathermen or even the more familiar Al-Qaeda. While Schwartz himself does not explicitly draw such comparisons, the scenario he paints of human cruelty is truly nightmarish: After reading his article before heading to bed last night, I myself had Kafka-esque dreams about complete strangers invading my own privacy for no intelligible reason. So I can certainly appreciate how terrifying Schwartz’s story will be to many readers, especially those less familiar with the Internet or simply less comfortable with the increasing readiness of so many younger Internet users to broadcast their lives online.
But Schwartz leaves unanswered two important questions. The first question he does not ask: Just how widespread is trolling? However real and tragic for its victims, without having some sense of the scale of the problem, it is difficult to answer the second question Schwartz raises but, wisely, does not presume to answer: What should be done about it? The policy implications of Schwartz’s article might be summed up as follows: Do we need new laws or should we focus on some combination of enforcing existing laws, user education and technological solutions? While Schwartz focuses on trolling, the same questions can be asked about other forms of malwebolence–best exemplified by the high-profile online defamation Autoadmit.com case, which demonstrates the effectiveness of existing legal tools to deal with such problems.
Why I’m Not a Copyright Pessimist
I too am sad to see William Patry hanging up his spurs. I can sympathize with a lot of he says. I too consider myself a copyright centrist and a defender of copyright’s traditions and so find it frustrating to be forced by recent trends to be constantly on the “anti-copyright” side of every argument. However, I don’t share Patry’s depression regarding recent trends in the copyright world. Because while the legislative developments over the last 30 years have been an unbroken string of disasters, most other aspects of the copyright system have actually gone pretty well.
One ray of light is the courts, which continue to get more right than they get wrong. The courts have, for example tended to uphold the first sale doctrine and fair use against concerted challenges from the copyright industries. Had Congress not passed the 1976 Copyright Act, the NET Act in 1997, and the DMCA and CTEA in 1998, my sense is that we’d actually have a pretty balanced copyright system. This suggests to me that restoring copyright sanity wouldn’t actually be that hard, if Congress were ever inclined to do so. To a large extent, it would simply have to repeal the bad legislation enacted during the 1990s.
I can think of two reasons my outlook might be more optimistic than Patry’s. One is that I’m younger than he is. I graduated from high school in 1998, which was almost certainly the low point when it comes to copyright policy on the Hill. While advocates of balanced copyright haven’t passed any major legislative victories since then, they have blocked most of the bad ideas that have come down the pike. We killed Fritz Hollings godawful SSSCA, the broadcast flag, “analog hole” legislation, and so forth. Given the lopsided advantages of the copyright maximalist in terms of funding and lobbying muscle, holding our own isn’t bad.
I think another reason I might be less inclined to get depressed than Patry is that I’m not a copyright lawyer. One of the most important trends of the last couple of decades is a steady divergence between the letter of copyright law and peoples’ actual practice. At the same time copyright law has gotten more draconian, it has also grown less powerful. More and more people are simply ignoring copyright law and doing as they please. A few of them get caught and face draconian penalties, but the vast majority ignore the law without any real consequences.
I imagine this is depressing for a copyright lawyer to see an ever-growing chasm between the letter of the law and peoples’ actual behavior. The copyright lobby’s extremism is steadily making copyright law less relevant and pushing more and more people to simply ignore it. That’s depressing for someone who loves copyright law, but I’m not sure it’s so terrible for the rest of us. I would, of course, prefer to have a reasonable set of copyright laws that most people would respect and obey. But I’m not sure it’s such a terrible thing when people react to unreasonable laws by ignoring them. Eventually, Congress will notice that there’s little correspondence between what people are doing and what the law says they ought to be doing, and they’ll change the laws accordingly. I’d prefer that happen sooner rather than later, but I have little doubt that it will happen, and I’m not going to lose sleep over it in the interim.
It’s Never Been More Clear
Want to know why copyright lobbyists never seem to have any real arguments? Because they describe those of us who defend the traditional contours of copyright law—including “limited terms”—as “copyright opponents.”
I mean, really.
It’s Tough Being a Rock Star
Pity the poor musician:
The Times quotes, Herbie Flowers, who played bass on Lou Reed’s Walk on the Wild Side and David Bowie’s Space Oddity: “The term of protection for performers has not kept up with life expectancy and it is high time it was changed. I played on a couple of very successful tracks, and it would be unfair for me to stop receiving income for these performances after 50 years — probably just at the time when I will need it the most.”
I wonder if he realizes that the vast majority of people “stop receiving income” from their jobs the moment they stop doing them. You can be sure, for example, that I won’t be continuing to pay my dry cleaner 50 years from now for the pants he cleaned last month.
Hat tip: Rob Hyndman
Is Piracy Killing PC Gaming?
Sean Sands makes the argument that it is in a very powerfully worded editorial today over at The Escapist entitled “Sink the Pirates“:
PC developers are being forced to make more dramatic decisions in the face of overwhelming piracy, an issue that Cevat Yerli, CEO of Crysis developer Crytek, recently enumerated at one legitimate copy to every twenty pirated. [...] Yes, I think Cevat is inflating his 20 to 1 statistic, but he’s probably not nearly as far off as you or I might think. Looking at arguably one of the largest P2P torrent sharing sites on the web (no, I’m not going to link to it), and the number of Games torrents currently available, the evidence is absolutely damning. Despite PCs’ relative weakness in the marketplace, clearly in the backseat by orders of magnitude in relation to the next gen and handheld systems, it represents 50% of all torrents. Let me stress that - the number of illegal PC downloads are, at any given moment, equal to or greater than the illegal downloads for every other system combined. [...] Here’s the bottom line: Yes, piracy is destroying PC gaming. That is an immutable truth, evidenced by the exodus of PC developers defecting en masse to make games for consoles. End of story.
I’m not prepared to offer an opinion one way or the other, but I have noticed the slowdown in the PC gaming market recently and wondered about why many developers were moving over the more secure gaming consoles. That doesn’t necessarily prove that piracy was the primary factor, but it certainly could be part of the explanation.
What do you think?
Google vs. Google
Google has found itself stuck between a rock and a hard place in its legal battle with Viacom over the question of whether IP addresses constitute “personally identifiable information,” as Jim pointed out yesterday. It’s worth noting, however, that EU regulators have left Google little choice but to stake out uncharted territory in order to defend its data collection practices.
Under the European Union’s strict privacy directive, websites are prohibited from retaining “personal data” for more than six months. What exactly constitutes personal data is up for debate. Google, which retains IP addresses for 18 months, has taken the position that IP addresses don’t constitute personal data and therefore are not subject to EU data retention limits.
That argument has placed Google in a double-bind in its legal proceedings with Viacom. In his recent ruling, Judge Stanton specifically referenced Google’s recent blog post which argued that IP addresses should not be considered personally identifiable information. If IP addresses aren’t private, Stanton reasoned, then what’s the harm in Google handing them over to Viacom?
Whether an IP address can identify an individual is a matter of context. Google stated recently, “Based on our own analysis, we believe that whether or not an IP address is personal data depends on how the data is being used.” That makes sense; an IP address alone is generally not enough information to identify an individual, absent a court order.
Yet while IP addresses are not capable of overtly identifying individuals in the same way as phone numbers and addresses, IP addresses combined with other details often make it possible to positively identify individuals with a high degree of accuracy. Anybody can run a reverse DNS lookup on an IP address, which usually reveals the city and state in which the user of that IP address is located, along with the service provider. The YouTube logs that Google has been ordered to produce include not just IP addresses but also usernames and specific viewing times, so it’s all but guaranteed that quite a few individuals could be personally identified given enough man-hours of data mining.
Pacifica Anniversary Week, Part 6 (Further reading)
This is the sixth and final installment in a series of essays about the legacy of the Supreme Court’s FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary today. Part 1, presented a general overview of the issue. Part 2 sketched a short history of FCC indecency regulation. Part 3 discussed the misguided logic of the Court’s reasoning in Pacifica as it stood in 1978. Part 4 showed how that logic is even more misguided in light of modern developments. And part 5 was a recent joint editorial on the issue I co-authored with John Morris of Center for Democracy & Technology.
In this final installment, I thought I would just offer up a some further reading on the issue for those who might be interested in doing further research on the topic. Although it is certainly not an exhaustive list of all the relevant books and law review articles out there, below you find a bibliography of some of the very best material on the issue of the Pacifica case, the “pervasiveness doctrine,” and modern First Amendment jurisprudence. I’ve also embedded a Scribd version of a law review article I penned on these issues last year that ties together all my thinking on this front. It is called, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.”
Save the Orphan (Works)
Tim Lee has published a Cato TechKnowledge piece discussing the growing problem of “orphan works” - copyrighted material the owner of which can’t be found. He highlights the work of our own Jerry Brito.
Goose, Gander, Sauce, Etc.
AP sends nastigrams to blogs for citing as few as 39 words from its stories.
Mike Arrington blogs about it at TechCrunch.
The AP quotes 22 words from Arrington’s post.
Arrington responds:
Now the A.P. has gone too far. They’ve quoted twenty-two words from one of our posts, in clear violation of their warped interpretation of copyright law. The offending quote, from this post, is here (I’m suspending my A.P. ban to report on this important story).
Am I being ridiculous? Absolutely. But the point is to illustrate that the A.P. is taking an absurd and indefensible position, too. So I’ve called my lawyers (really) and have asked them to deliver a DMCA takedown demand to the A.P. And I will also be sending them a bill for $12.50 with that letter, which is exactly what the A.P. would have charged me if I published a 22 word quote from one of their articles.
Brilliant.
Cato Unbound: Towards a Copyriot Act
Cato Unbound today published my reaction to Rasmus Fleisher’s lead essay on the future of copyright. My essay, titled Towards a Copyriot Act—and Away from it, Again, describes “another future for copyright, one in which lawmakers impose crushing penalties to discourage rampant infringement.” It begins by asking readers to put themselves in the shoes of a Hollwood executive, one who says,
“The police need to fire a few shots over the infringers’ heads. And if the looting continues, they should shoot some of the looters. That may sound severe, but we face a breakdown of civil order. After all, wouldn’t police — or perhaps the National Guard — do the same if mobs threatened to take over Wall Street, Rodeo Drive, or Constitution Avenue? Hollywood deserves the same protection. The time has come to get tough on infringement. The Copyright Act’s mild remedies evidently do not suffice. We need a Copyriot Act!”,
Cato Unbound will next host a series of brief exchanges between Fleischer and we three who responded to his lead essay. Check The Future of Copyright issue for that debate, as well as all of the essays.
[Crossposted at Agoraphilia and Technology Liberation Front.]
Copyright Podcast
I neglected to mention that I’m on Cato’s Daily Podcast today discussing the themes of my copyright essay. Just to be clear, the complete home-recorded Golden Girls VHS collection Caleb references is purely hypothetical. I don’t collect copyright-infringing videos, and if I did they wouldn’t be on VHS, nor would they consist of Golden Girls re-runs.
Update: I guess it’s possible people would have liked a link
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