My attempts to grapple with the question of how to measure the economic impact of illicit copying, for your reading enjoyment.
Copyright 
Larry Lessig is frustrated by the Democratic Congress’s apparent lack of interest in serious copyright reform:
“Radical” changes in Washington always have this Charlie Brown/Lucy-like character (remember Lucy holding the football?): it doesn’t take long before you realize how little really ever changes in DC. The latest example is the Dems and IP issues as they affect the Net. Message to the Net from the newly Democratic House? Go to hell…
The Dems have looked at the potential “return” from the activists on the Net. They’ve considered the kids being sued by the industry (including the kids running MySpace, and maybe soon, YouTube), and the kids creating amazing new (but presumptively illegal) mashups and remixes, and they have compared that value to the party with the value promised by Hollywood. Result: the 20th Century continues to rule.
Dems to the Net: “Thanks for the blogs. And please continue to get outraged by MoveOn messages. But don’t think for a second we’re interested in hearing anything beyond the charming wisdom of Jack Valenti. We appreciate your support. We appreciate your money. But come on–you’re all criminals. Don’t expect your criminal ways to be taken seriously by an institution as respected as the US Congress.”
I share Lessig’s frustration, but I don’t know why he’s surprised. The Democrats have never been appreciably better than the Republicans on copyright issues. Two of the best Reps on copyright issues are Democrats–Boucher and Lofgren. But on the Republican side, Doolittle and Barton have been equally helpful. This has never been an issue that’s broken down along partisan lines.
Frankly, I think the vast majority of Democrats in Congress are only vaguely aware that the “activists on the Net” even exist, and they have no idea what they want and why. There are a few Reps who understand our arguments and support them and a few others who have considered our arguments but side with Hollywood. But my sense is that the vast majority have sided with Hollywood without giving the subject a second thought. After all, everyone’s in favor of artists, right?
Instead of getting angry at the Democrats for not doing the right thing, we should be building a movement that’s broad enough that both parties feel compelled to take our concerns seriously. Lucy’s not going to stop pulling the football away until Charlie Brown develops the political clout to clobber her for it.
Hoping to discover Universal Truths, I have been reading Law in Imperial China and The Law of Primitive Man among other things. One never knows when one might stumble across the Law of Nature. But it’s all downhill after Hobbes and Locke. History is quite determined to make a mockery of it all. (This ultimately has bearing on some of the arguments made concerning copyright and patent rules, particularly by my old, old friend Tom Bell (not that Tom is old, just that I’ve known him for ages) and by a younger version of myself, but I don’t make all those connections here).
Gigi Sohn had a great response to the Wall Street Journal‘s December 1 editorial printed in letters section of Thurday’s Journal:
There are legitimate and legal uses for posting (typically small portions of) copyrighted material, including for public comment and criticism–guaranteed to the public by a limitation on copyright called fair use. For purposes of fair use, someone posting material online does not need an author’s permission; imagine if a movie critic needed to ask a studio’s permission to critique a movie demonstrated by showing a clip. Google’s service indexes hundreds of thousands of pages of book texts, all to provide brief passages of context in response to a searcher’s specific query. Unless a book is in the public domain or otherwise permitted by the publisher, Google Book Search does not provide the entire text of a book online. Using just enough of a book to show the results of a search is a perfect example of fair use.
Your editorial advocates an unacceptable culture of control. Google and YouTube exist despite individual infringers, not because of them. Your version of rigorous copyright enforcement would prevent tech innovators like Google from giving users new ways to create and access content, while providing no new incentives for content innovators to create. Fair uses of home taping didn’t kill music, video recording didn’t kill TV or movies, and Google and YouTube aren’t going to do it either. These are legitimate fair uses of copyrighted works for which our society is better off, not worse.
It’s important that people understand that Google Book Search displays a tiny fraction of a book’s content. Google’s critics seem to be under the impresion that Google Book Search allows you to view entire in-copyright books. If everyone understood that in reality, the software only displays a handful of excerpts, each of which is only a couple of sentences long, I think that almost any reasonable person would recognize that Google’s in the right. It’s only because the publishers have created the misperception that Google is distributing entire books without the permission of publishers that they’ve gotten a sympathetic ear from the likes of the WSJ editorial board.
Relatedly, Sohn’s point that Google and YouTube have succeeded despite the infringing activity of individual users, not because of them, is important. Unlike Grokster, there really is an enormous amount of non-infringing material on YouTube. The service would continue to be widely used if all the infringing material were taken down. There’s certainly room for debate about how much of the burden of policing infringing content should fall to YouTube, but the more important issue is that copyright law should not shut down a fundamentally legitimate service because a minority uses it for illegal purposes.
We can all agree how pernicious the DMCA is when it’s used by the MPAA to put out of business Load ‘N Go–a small company that sold iPods preloaded with movies along with the DVDs of those movies. Piracy was not an issue here because consumers had to buy the DVD of every movie loaded onto their iPod. The reason MPAA acted, of course, is because Hollywood wants us to pay twice for movies–once for a DVD and again for an iPod or PC version.
Sometimes, however, the content industry has a point. Today Todd Dominey posted on his excellent blog his experience getting rid of his 3000-CD collection and going completely digital. He ripped everything to his computer and then sold all the CDs on the Amazon Marketplace. Today’s post is a great howto for folks with big collections. The thing is that he kept the music, but every used CD he sold is arguably one new CD the recording industry didn’t sell. (There’s probably not a one-to-one correlation there, but probably pretty close.) As more folks move to digital, this practice will only grow.
As far as I can tell this is plain and simple copyright infringement. I don’t think DRM coupled with the DMCA is the solution. Given the new reality of the internet, the only choice the content industry has is to change its business model. But when you see something like this, you have to feel their pain. I believe ripping your CDs or DVDs for use on your portable devices is fair use, and I think the Copyright Office should have issued a DMCA exemption for the practice. That said, you can’t have your cake and eat it, too.
This is fantastic:
…and also blatant copyright infringement. Although I doubt Weird Al minds.
Hat tip: Patri Friedman
Neat! The Wall Street Journal appears to have cited my DMCA paper in today’s editorial. (It’s behind a paywall, unfortunately) Unfortunately, although I always appreciate seeing my work cited, it doesn’t look like they read read it very carefully:
A recent Cato Institute paper argues that “transformative” technologies like search engines should be exempt from many of these copyright lawsuits because they create entirely new products out of the old. They argue that the role of “copyright law is to promote, not impede technological progress.” That’s true. But without rigorous enforcement of intellectual-property rights, there may not be much technological progress to promote.
This wasn’t really the point of my paper, nor is it just my opinion. Rather, I was quoting the decisions of the Supreme Court, which ruled in 1994 that “transformative” uses of copyrighted works tend to be fair, and the Ninth Circuit, which ruled that thumbnails used in image search engines are such a transformative use. And I wasn’t talking about the YouTube or Google Book Search controversies, which involve different issues than the reverse-engineering cases I was focusing on in my paper.
As I’ll explain below the fold, the rest of the editorial makes the same kinds of mistakes.
Ed Felten has a clever post on the strange intersection of Second Life and copyright law:
Alice designs a spiffy new hot air balloon that everyone covets. Bob uses CopyBot to make his own replica of the balloon, which he starts riding around the skies. Alice discovers this and sends a takedown notice to Second Life. Bob’s balloon is then “taken down”–it disappears from the world, as in the classic cartoon Duck Amuck, where the animator’s eraser plays havoc with Daffy Duck’s world.
But surely Bob isn’t the only one riding in a copied balloon. Others may have CopyBotted their own balloons or bought a balloon copy from Bob. It’s tedious for Alice to write and send a takedown notice every time she sees a copied balloon.
What Alice needs is a takedown gun. When she sees an infringing balloon, she just points the takedown gun at it and pulls the trigger. The takedown gun does the rest, gathering the necessary information and sending a takedown notice, dooming the targeted balloon to eventual destruction. It’s perfectly feasible to create a takedown gun, thanks to Second Life’s rich tools for object creation. It’s a gun that shoots law rather than bullets.
Felten goes on to explore the ramifications of the development of such a gun. He concludes that “when copying is easy, laws against copying are very hard to enforce.”
USA Today columnist Kevin Maney has a story up on Tim Lee musical fave OK Go. He also has more tidbits about the story on his blog.
Just for fun, a little piece on copyright as socialism.
So how many meta-levels can we think about this at?
-There’s the whole question of the origin of the word “socialist,” I vaguely recollect that, like “liberal,” it used to be used by free marketers.
-There’s the discordance of recognizing that in some country’s mainstream media the term “socialist” is a positive.
-There’s the question of whether anyone who accepts copyright must therefore be a socialist.
-And then the question of whether markets in general, since they seem pretty good at giving people access to things, are “socialist.”
I’ll stop here.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.