Last August I posted big rant about “Is DRM the Devil? The Debate over Digital Rights Management, Trusted Computing and Fair Use in Copyright Law.” In it, I mentioned a forthcoming Cato Institute study by Michael Einhorn and Bill Rosenblatt entitled, “Peer-to-Peer Networking and Digital Rights Management: How Market Tools Can Solve Copyright Problems.” Well, I’m happy to say that it’s finally out!
In this paper, Einhorn and Rosenblatt demonstrate that DRM and P2P can be quite complementary and that innovative market mechanisms that can help alleviate many copyright concerns are currently blossoming.
Einhorn and Rosenblatt argue that “Government should protect the copyrights of content owners but simultaneously allow the free market to determine potential synergies, responses, and outcomes that tap different P2P and DRM business models. In particular, market operations are greatly preferable to government technology controls,” they note.
Their paper outlines the many innovative business models and technological solutions already being deployed in the marketplace proving that, contrary to what many critics on both sides of this debate argue, a well-functioning marketplace is currently at work.
I encourage you to download and read this important new study:
http://www.cato.org/pub_display.php?pub_id=3670
Wow, check this out. Ed Felten of the “Freedom to Tinker” blog has written a new P2P program called “Tiny P2P” that is made up of just 15 lines of code! And no single line has more than 80 characters. How in the world is the industry gunna stop this one?
Seriously, think about this. Regardless of what you think of the music and movie industry lawsuits against P2P providers, there’s a very good chance they will all succeed. Napster and Aimster were already taken down via contributory liability lawsuits and the Supreme Court is set to hear the Grokster case soon. The Supreme Court will almost certainly reverse the Ninth Circuit’s decision and hold Grokster liable for contributory copyright infringement. Again, I’m not making a case one way or the other, I’m just saying that it’s highly likely there will be 5 votes on the Court to hold Grokster liable.
OK, assuming that happens, what’s next? Well, I guess the industry can sue E-Donkey and the handfull of other big P2P players that remain out there, but at some point the market evolves to the point were everyone is just using freeware like Felton’s “Tiny P2P” code. What then? I guess the industry could go after Ed, but what’s the point. The cat is out of the bag and many more imitators will follow. Pretty soon there will just be no one left to sue.
So what’s the industry going to do then? Who knows. In my opinion, they should just stick to suing individuals for direct infringement and concentrate on creating new business reponses to this rapidly evolving marketplace. Because at some point very soon, “The Matrix” that is the World Wide Web will be all around them and P2P will be so ingrained in it that there will be no way to use the law to stop it. Felton’s “Tiny P2P” shows us that this day may be upon us already.
The Washington Post reports that the MPAA is launching a legal campaign against three file-sharing networks, eDonkey, Direct Connect, and BitTorrent.
The Post makes a pretty basic error: BitTorrent is not a company. This should have been obvious from its minimalist web site. They’re an open source project widely popular in the open source community.
Moreover, unlike with traditional P2P networks, not just any client can upload a BitTorrent file. Instead, you have to run a “tracker” on a server somewhere to coordinate the downloading of files– or ask the operator of another tracker to serve your file. What that means is that trackers operators have considerable control over which files are offered, and different BitTorrent servers will have different mixes of files on offer.
What will be interesting about this case is that many BitTorrent downloads are entirely legal. Open source projects are typically distributed for free over the Internet, and it takes gobs of bandwidth to do so. Many open source projects are available for download via BitTorrent to save themselves bandwidth.
What this means is that, to an extent not true in the Grokster case, there really are “substantial non-infringing uses” to the BitTorrent application, as required by the landmark Sony Betamax case. The argument used against Grokster–that the company’s business model depended on pirated files, and the few legitimate downloads were just window dressing–just won’t stick against BitTorrent.
The MPAA’s lawyers seem to understand this, because they’re targetting trackers rather than the developers of BitTorrent itself. And I assume they understand it well enough to focus their attacks on those trackers that offer little else but copyrighted content.
The Post’s David McGuire, on the other hand, doesn’t seem to understand the technology involved. That’s not actually too surprising. Reporters often mangle technical details. But this is a case where the technical details matter, and so it’s hard to understand what the legal battle is about if they get mangled.
The Heritage Foundation’s weblog yesterday posted a good piece yesterday questioning the way Pew’s recent report on P2P was (mis)reported in the news. If you haven’t seen it, Jim Harper’s excellent post yesterday on the same topic is also worth a look.
A new study by the Pew Internet and American Life Project finds that artists and musicians are less antagonistic to P2P than their “industry.”
The conclusions of the study, copied here for artistic, literary, scholarly, and news-reportorial purposes, are:
Artists and musicians on all points of the spectrum from superstars to starving singers have embraced the internet as a tool to improve how they make, market, and sell their creative works. They use the internet to gain inspiration, build community with fans and fellow artists, and pursue new commercial activity.
Artists and musicians believe that unauthorized peer-to-peer file-sharing of copyrighted works should be illegal. However, the vast majority do not see online file-sharing as a big threat to creative industries. Across the board, artists and musicians are more likely to say that the internet has made it possible for them to make more money from their art than they are to say it has made it harder to protect their work from piracy or unlawful use.
As with all studies, there are reasons to be skeptical of this one. Pew allowed some of its sample to self-identify as artists. That is, the performer of macrame-related folk tunes who has never left his bedroom may be an “artist” for purposes of this study. (My interpretive dance inspired by The Economic Structure of Intellectual Property Law might qualify me.)
But the gist of the study is well-taken: Artists benefit from the Internet and see its commercial potential as a benefit to themselves, file-sharing/piracy notwithstanding.
So you want to know what all the cool kids (read as content pirates) are up to these days?
There’s a new Java BitTorrent client called Azureus that supports plugins. Some enterprising fellow wrote an RSS parsing plugin, which enables a user to point the application to an RSS feed and download anything that matches specified filter settings.
In practice, this allows the user to automatically download HDTV television programs with the commercials already edited out.
This is particularly interesting for a number of reasons:
- Most people’s computer monitors are capable of displaying an image of significantly higher resolution than their television. I don’t own an HDTV, but my LCD computer monitor can handle 720p without breaking a sweat.
- You don’t even have to bother fast-forwarding through commercials. TiVo is so 2003.
- The HDTV files you download are even better than the DVD content you would get if you bought the complete season of your favorite program.
- Programs turn up on the feeds much quicker than you would expect, often within an hour of the time the broadcast aired.
There are already enough HDTV capture cards out there to keep this going until television becomes completely irrelevant, so the broadcast flag isn’t going to mean jack. Nevertheless, it will be interesting to see how the networks try to fight this one.
Short piece by Norbert Michel and myself on the MPAA lawsuits, released yesterday by Heritage…
Hollywood, Values and P2P Lawsuits
If exit polls can be believed, issues of moral values were among the most important factors in last week’s presidential elections. Pundits are still weighing the meaning of that vote and what it means for public policy. Yet buried beneath the election news, the values issue was also raised last week in a much different context, the fight against the theft of intellectual property on the Internet. Ironically, the motion picture industry–rarely seen as a hotbed of traditional morality–is leading this fight. It announced that it will file lawsuits against individuals found illegally trading copyrighted movies over the Internet.
Continue reading →
For those of you in the Washington area, on October 20th at 11:00, I will be moderating a debate about the Induce Act and contributory liability theories in copyright law. The event will take place at the Cato Institute (1000 Massachusetts Ave., NW) in our auditorium. It is open to the public.
The event will feature David Green of the MPAA and Mitch Glazier of the RIAA versus Markham Erickson of NetCoalition and Gigi Sohn of Public Knowledge. Should be a good debate. Please RSVP if you plan to attend because seats are going fast. Here’s the link to do so.
(By the way, for those of you too far away to join us, a few days after the event we’ll likely have a video of the event online).
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.