DMCA, DRM & Piracy

Lessig’s call for a “simple blanket license” in Remix

by on December 1, 2008 · 36 comments

Lessig Remix coverI’m finishing up Stanford Law School professor Lawrence Lessig’s latest book, Remix: Making Art and Commerce Thrive in the Hybrid Economy and wanted to make a brief comment about his call for a “simple blanket license” to solve online music piracy.

Overall, I thought Prof. Lessig made a good case regarding the benefits of “remix culture” and why copyright law should leave breathing room for the various derivative works of amateur creators. On the other hand, Lessig still too often blurs remix culture with “ripoff culture” (i.e., those who aren’t out to create anything new but instead just take something without paying a penny for it).

To solve that latter problem, Lessig again endorses a proposal that William Fisher, Electronic Frontier Foundation, and others have made for collective licensing of all online music, but he fails to drill down into the devilish details. He says, for example, that “by authorizing a simple blanket licensing procedure, whereby users could, for a low fee, buy the right to freely file-share” we could “decriminalize file sharing.” (p. 271)

I respect the fact that Lessig is at least acknowledging a problem exists and proposing a solution to it, but the collective licensing approach will be anything but “simple” in practice. As I have pointed out here before, collective licensing proposals and efforts almost always become compulsory in practice.  They inevitably involve government mandates to determine (1) who pays in, (2) how much they pay in, as well as (3) how much gets paid out and, (4) who gets the money.

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Book Review: Blown to Bits by Abelson, Ledeen, & Lewis

by on November 18, 2008 · 20 comments

Blown to Bits coverI’ve just finished reading Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion, by Hal Abelson, Ken Ledeen, and Harry Lewis, and it’s another title worth adding to your tech policy reading list. The authors survey a broad swath of tech policy territory — privacy, search, encryption, free speech, copyright, spectrum policy — and provide the reader with a wonderful history and technology primer on each topic.

I like the approach and tone they use throughout the book. It is certainly something more than “Internet Policy for Dummies.” It’s more like “Internet Policy for the Educated Layman”: a nice mix of background, policy, and advice. I think Ray Lodato’s Slashdot review gets it generally right in noting that, “Each chapter will alternatively interest you and leave you appalled (and perhaps a little frightened). You will be given the insight to protect yourself a little better, and it provides background for intelligent discussions about the legalities that impact our use of technology.”

Abelson, Ledeen, and Lewis aren’t really seeking to be polemical in this book by advancing a single thesis or worldview. To the extent the book’s chapters are guided by any central theme, it comes in the form of the “two basic morals about technology” they outline in Chapter 1:

The first is that information technology is inherently neither good nor bad — it can be used for good or ill, to free us or to shackle us. Second, new technology brings social change, and change comes with both risks and opportunities. All of us, and all of our public agencies and private institutions, have a say in whether technology will be used for good or ill and whether we will fall prey to its risks or prosper from the opportunities it creates. (p. 14)

Mostly, what they aim to show is that digital technology is reshaping society and, whether we like or it not, we better get used to it — and quick!  “The digital explosion is changing the world as much as printing once did — and some of the changes are catching us unaware, blowing to bits our assumptions about the way the world works… The explosion, and the social disruption that it will create, have barely begun.” (p 3)

In that sense, most chapters discuss how technology and technological change can be both a blessing and a curse, but the authors are generally more optimistic than pessimistic about the impact of the Net and digital technology on our society. What follows is a quick summary of some of the major issues covered in Blown to Bits.

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10 Years Under the Digital Millennium Copyright Act – Success or Failure?

by on October 8, 2008 · 5 comments

It’s nearing Halloween, so it must mean the anniversary of the Digital Millennium Copyright Act is just around the corner. In fact, it was 10 years ago, on Sunday, that Congress passed the DMCA, on October 12, 1998. The law was signed by President Clinton on October 28, 1998.

The information and news service that I have launched, BroadbandCensus.com, is “celebrating” the passage of the law with the inaugural event of the Broadband Breakfast Club. The breakfast event will take place on Tuesday, October 14, from 8 a.m. to 10 a.m., at the Old Ebbitt Grill at 675 15th Street NW, Washington, DC.

This event will bring together several key stakeholders together to share perspectives on this topic:

  • Drew Clark, Executive Director, BroadbandCensus.com (Moderator)
  • Mitch Glazier, Senior Vice President, Government Relations, Recording Industry Association of America
  • Michael Petricone, Senior Vice President, Government Affairs, Consumer Electronics Association
  • Wendy Seltzer, Practitioner in Residence, Glushko-Samuelson Intellectual Property Law Clinic, American University Washington College of Law
  • Emery Simon, Counselor, Business Software Alliance

Breakfast for registrants will be available beginning at 8:00 a.m., and the forum itself will begin at around 8:30 a.m., and conclude promptly at 10 a.m. The event is open to the public. The charge for the breakfast is $45.00, plus an Eventbrite registration fee. Seated attendance is limited to the first 45 individuals to register for the event.

Future events in the Broadband Breakfast Club monthly series will feature other key topics involved in broadband technology and internet policy. In fact, you can mark your calendar for the next event on Tuesday, November 18, from 8 a.m. to 10 a.m., also at the Old Ebbitt Grill.

For more information about BroadbandCensus.com, or about the Broadband Breakfast Club at Old Ebbitt Grill – on the second Tuesday of each month – please visit http://broadbandcensus.com, or call me at 202-580-8196.

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What Is This Drawing About?

by on October 8, 2008 · 7 comments

Arts+Labs, a new coalition “committed to a better, safer internet that works for both artists and consumers,” has written up Friday’s Cato Institute book forum on The Crime of Reason on their ArtLab blog. Author Robert B. Laughlin of Stanford University will present his book, then we’ll have comments from Tom Sydnor of the Progress and Freedom Foundation.

I’ve gotten a glimpse at the slides Dr. Laughlin will be using, and this Nobel laureate in physics also turns out to be something of an artist.

Join us Friday to learn what this drawing is all about.

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Intellectual Property Laws and Government Security Threaten Science and Knowledge

by on September 30, 2008 · 9 comments

If you find the title of this post provocative, you’ll be interested in a Cato Institute book forum on Friday, October 10th.

In The Crime of Reason, Nobel laureate in physics Robert Laughlin argues that intellectual property laws and government security demands threaten the development of new knowledge. Without change, we risk bequeathing our heirs a world where knowledge is criminalized and our intellectual tradition of unfettered inquiry is lost.

The event should be a fascinating inquiry into the role of information and information rules in our society. Thomas Syndor of the Progress & Freedom Foundation will comment. I’ll be your humble moderator. It’s noon on Friday, October 10th, at the Cato Institute, 1000 Massachusetts Avenue, NW, Washington, D.C. Luncheon to follow.

You can register for the event here.

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The Great ‘Open v. Closed’ Debate Continues: Google Phone v. Apple iPhone

by on September 28, 2008 · 5 comments

“Hasn’t Steve Jobs learned anything in the last 30 years?” asks Farhad Manjoo of Slate in an interesting piece about “The Cell Phone Wars” currently raging between Apple’s iPhone and the Google’s new G1, Android-based phone. Manjoo wonders if whether Steve Jobs remembers what happen the last time he closed up a platform: “because Apple closed its platform, it was IBM, Dell, HP, and especially Microsoft that reaped the benefits of Apple’s innovations.” Thus, if Jobs didn’t learn his lesson, will he now with the iPhone? Manjoo continues:

Well, maybe he has—and maybe he’s betting that these days, “openness” is overrated. For one thing, an open platform is much more technically complex than a closed one. Your Windows computer crashes more often than your Mac computer because—among many other reasons—Windows has to accommodate a wider variety of hardware. Dell’s machines use different hard drives and graphics cards and memory chips than Gateway’s, and they’re both different from Lenovo’s. The Mac OS, meanwhile, has to work on just a small range of Apple’s rigorously tested internal components—which is part of the reason it can run so smoothly. And why is your PC glutted with viruses and spyware? The same openness that makes a platform attractive to legitimate developers makes it a target for illegitimate ones.

I discussed these issues in greater detail in my essay on”Apple, Openness, and the Zittrain Thesis” and in a follow-up essay about how the Apple iPhone 2.0 was cracked in mere hours. My point in these and other essays is that the whole “open vs. closed” dichotomy is greatly overplayed. Each has its benefits and drawbacks, but there is no reason we need to make a false choice between the two for the sake of “the future of the Net” or anything like that.

In fact, the hybrid world we live in — full of a wide variety of open and proprietary platforms, networks, and solutions — presents us with the best of all worlds. As I argued in my original review of Jonathan Zittrain’s book, “Hybrid solutions often make a great deal of sense. They offer creative opportunities within certain confines in an attempt to balance openness and stability.”  It’s a sign of great progress that we now have different open vs. closed models that appeal to different types of users.  It’s a false choice to imagine that we need to choose between these various models.

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Veoh Considered

by on September 22, 2008 · 8 comments

I reviewed the Veoh case for DRMWatch recently:

The user-generated video site Veoh achieved a victory in court on August 27th when California District Judge Howard Lloyd ruled that it was entitled to the protection of the DMCA’s safe harbor provisions. Veoh was accused of copyright infringement by IO Group, a maker of adult films…

Like eBay v. Tiffany, another case in which one might trumpet a tech-side win… the tech gets at least some protection from liability. But only in a context in which the tech is already taking substantial steps to help the plaintiff trademark/copyright owner with their enforcement problem, steps that would have been hard to conceive of a decade ago, and that many would have grandly declared to be too ambitious and too invasive for online services to attempt. Prediction: the case law is now much more mature, but the business side is just getting started. More and fancier filtering to come.

It’s funny and scary how many of our grand ideas about justice, rights, freedom, fairness and property come down to what we can become accustomed too.  Bad, in the sense that one can easily lose the customary baselines against which freedom is measured in a generation or so. Good, in the sense that one is not limited to identify freedom with just one historic mythical Golden Age; a free society has somewhat more leeway.

I’m fond of paradoxes these days. Tedious things. Almost as annoying to other people, I am sure, as those characters (you know who you are) who make puns all the time.

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Software and a Digression

by on September 8, 2008 · 4 comments

My recent comments on a developers experiment in combatting software piracy, posted here.

And an absolutely brilliant adventure in free speech marital event planning, here (OT).

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DMCA takedown notices should take fair use into consideration

by on August 21, 2008 · 31 comments

A U.S. district judge got it right yesterday when he refused to dismiss a lawsuit against Universal, ruling that copyright holders should take into account fair use prior to issuing DMCA takedown notices. The dispute arose last year when a woman received a takedown notice over a YouTube video featuring a kid dancing to a Prince song owned by Universal.

Over at Ars, fellow TLFer Tim Lee has a good overview of the issue in which he explains how the various legal arguments played out. EFF, which represents the plaintiff in the case, offered several compelling reasons why ignoring fair use in a takedown notice might actually constitute “bad faith” under the DMCA.

As Cord discussed a few months ago, my employer, the Competitive Enterprise Institute, recently received a meritless takedown notice for a global warming ad we posted on YouTube which featured about seven seconds from a copyrighted video clip. Our use of a trivial portion of a copyrighted video was clearly both transformative and non-commercial, yet the content owner still deemed it worthwhile to try to get the video removed.

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ACT to Come Out against DMCA and Software Patents?

by on August 10, 2008 · 20 comments

I was pleased to see Braden’s excellent new paper on the use of self-serving lobbying tactics to limit competition and promote particular business models at the expense of others. As Braden and his co-author point out, some of the most important competition in the software industry has become less about products than about business models. Some software companies sell the software directly, while others give software away as a means of selling hardware, services, or advertising. And in many cases, public policy debates in the software industry are thinly-veiled attempts to give some business models unfair advantages over others.

Braden produced a chart that gives some helpful examples of policies that tilt the economic playing field toward one business model at the expense of the others:

As you can see, software patents promote proprietary software business models at the expense of business models based on giving software away for free (and, it should be said, at the expense of people who want to give software away for free on a non-commercial basis). Similarly, the DMCA promotes proprietary software business models. They neglected to put it on the chart, but the flip-side is obviously true: the DMCA harms free software, commercial and otherwise, by making unauthorized interoperability with DRMed software a crime.
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