Sherwin Siy, Vice President of Legal Affairs at Public Knowledge, discusses emerging issues in digital copyright policy. He addresses the Department of Commerce’s recent green paper on digital copyright, including the need to reform copyright laws in light of new technologies. This podcast also covers the DMCA, online streaming, piracy, cell phone unlocking, fair use recognition, digital ownership, and what we’ve learned about copyright policy from the SOPA debate.
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Patrick Ruffini, political strategist, author, and President of Engage, a digital agency in Washington, DC, discusses his latest book with coauthors David Segal and David Moon: Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet. Ruffini covers the history behind SOPA, its implications for Internet freedom, the “Internet blackout” in January of 2012, and how the threat of SOPA united activists, technology companies, and the broader Internet community.
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Joe Karaganis, vice president at The American Assembly at Columbia University, discusses the relationship between digital convergence and cultural production in the realm of online piracy.
Karaganis’s work at American Assembly arose from a frustration with the one-sided way in which industry research was framing the discourse around global copyright policy. He shares the results of Copy Culture in the US & Germany, a recent survey he helped conduct that distinguishes between attitudes towards piracy in the two countries. It found that nearly half of adults in the U.S. and Germany participate in a broad, informal “copy culture,” characterized by the copying, sharing, and downloading of music, movies, TV shows, and other digital media. And while citizens support laws against piracy, they don’t support outsized penalties.
Karaganis also discuses the new “six-strike” Copyright Alert System in the U.S., of which he is skeptical. He also talks about the politics of copyright reform and notes that there is a window of opportunity for the Republican Party to take up the issue before demography gives the advantage to the much younger Democratic Party.
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Imagine a service that livestreams major broadcast television channels over the Internet for $4.99 a month — no cable or satellite subscription required. For an extra 99 cents a month, the service offers DVR functionality, making it possible to record, rewind, and pause live broadcast television on any broadband-equipped PC.
If this service sounds too good to be true, that’s because it is. But for a time, it was the business model of ivi. Cheaper than a cable/satellite/fiber subscription and more reliable than an over-the-air antenna, ivi earned positive reviews when it launched in September 2010.
Soon thereafter, however, a group of broadcast networks, affiliates, and content owners sued ivi in federal court for copyright infringement. The court agreed with the broadcasters and ordered ivi to cease operations pending the resolution of the lawsuit.
ivi appealed this ruling to the 2nd Circuit, which affirmed the trial court’s preliminary injunction earlier this month in an opinion (PDF) by Judge Denny Chin. The appeals court held as follows:
- The rights holders would likely prevail on their claim that ivi infringed on their performance rights, as ivi publicly performed their copyrighted programs without permission;
- ivi is not a “cable system” eligible for the Copyright Act’s compulsory license for broadcast retransmissions, as ivi distributes video over the Internet, rather than its own facilities;
- Allowing ivi to continue operating would likely cause irreparable harm to the rights holders, as ivi’s unauthorized distribution of copyrighted programs diminishes the works’ market value, and ivi would likely be unable to pay damages if it loses the lawsuit;
- ivi cannot be “legally harmed by the fact that it cannot continue streaming plaintiffs’ programming,” thus tipping the balance of hardships in plaintiffs’ favor;
- While the broad distribution of creative works advances the public interest, the works streamed by ivi are already widely accessible to the public.
As much as I enjoy a good statutory construction dispute, to me, the most interesting question here is whether ivi caused “irreparable harm” to rights holders.
Writing on Techdirt, Mike Masnick is skeptical of the 2nd Circuit’s holding, criticizing its “purely faith-based claims … that a service like ivi creates irreparable harm to the TV networks.” He argues that even though ivi “disrupt[s] the ‘traditional’ way that [the broadcast television] industry’s business model works … that doesn’t necessarily mean that it’s automatically diminishing the value of the original.” Citing the VCR and DVR, two technologies that disrupted traditional methods of monetizing content, Mike concludes that “[t]here’s no reason to think” ivi wouldn’t “help [content owners’] business by increasing the value of shows by making them more easily watchable by people.”
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A new report says the opposite, though perhaps “legacy” entertainment companies are failing to keep up.
By any measure, it appears that we are living in a true Renaissance era for content. More money is being spent overall. Households are spending more on entertainment. And a lot more works are being created.
Good news! Check out: “The Sky is Rising.”
In the ongoing copyright debates, areas of common ground are seemingly few and far between. It’s easy to forget that not all approaches to combating copyright infringement are mired in controversy. One belief that unites many stakeholders across the spectrum is that more efforts are needed to educate Internet users about copyright. The Internet has spawned legions of amateur content creators, but not all of the content that’s being created is original. Indeed, a great deal of online copyright infringement owes to widespread ignorance of copyright law and its penalties.
For its part, Google yesterday unveiled “Copyright School” for YouTube users. As Justin Green explains on the official YouTube blog, users whose accounts have been suspended for allegedly uploading infringing content will be required to watch this video and then correctly answer questions about it before their account will be reinstated:
http://www.youtube.com/v/InzDjH1-9Ns?version=3
Of course, boiling down the basics of copyright into a four and a half minute video is not an easy task, to put it mildly. (The authoritative treatment of copyright law,
Nimmer on Copyright, fills an 11-volume treatise.) Copyright geeks and fans of “remix culture” will appreciate that Google’s video touches on fair use and includes links to in-depth resources for users to learn more about copyright. It will be interesting to see how Google’s effort influences the behavior of YouTube users and the incidence of repeat infringement.
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Should ISPs be barred under net neutrality from discriminating against illegal content? Not according to the FCC’s draft net neutrality rule, which defines efforts by ISPs to curb the “transfer of unlawful content” as reasonable network management. This exemption is meant to ensure providers have the freedom to filter or block unlawful content like malicious traffic, obscene files, and copyright-infringing data.
EFF and Public Knowledge (PK), both strong advocates of net neutrality, are not happy about the copyright infringement exemption. The groups have urged the FCC to reconsider what they describe as the “copyright loophole,” arguing that copyright filters amount to “poorly designed fishing nets.”
EFF’s and PK’s concerns about copyright filtering aren’t unreasonable. While filtering technology has come a long way over the last few years, it remains a fairly crude instrument for curbing piracy and suffers from false positives. That’s because it’s remarkably difficult to accurately distinguish between unauthorized copyrighted works and similar non-infringing files. And because filters generally flag unauthorized copies on an automated basis without human intervention, even when filters get it right, they often disrupt legal, non-infringing uses of copyrighted material like fair use.
Despite copyright filtering technology’s imperfections, however, outlawing it is the wrong approach. At its core, ISP copyright filtering represents a purely private, voluntary method of dealing with the great intellectual property challenge. This is exactly the sort of approach advocates of limited government should embrace. As Adam and Wayne argued back in 2001:
To lessen the reliance on traditional copyright protections, policymakers should ensure that government regulations don’t stand in the way of private efforts to protect intellectual property.
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The Isle of Man may soon implement a “blanket license” whereby Manx broadband users could download as much music as they like in exchange for paying a “fee” (also known as a “tax,” since this would be non-optional) to their ISP that would supposedly be as low as $1.38/month. The Manx proposal sounds a lot like how SoundExchange administers a blanket license in the U.S. for web-casting of copyrighted music:
the money collected by the Internet providers would be sent to a special agency that would distribute the proceeds to the copyright owners, including the record labels and music publishers. They would receive payments based on how often their music was downloaded or streamed over the Internet, as they now do in many countries when it is performed live or on the radio.
As Adam Thierer has noted, Larry Lessig has endorsed at least a voluntary version of this idea, but Adam has raised a number of tough questions: Continue reading →
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?
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.