A Copyfighter’s Musings

This Hiawatha Bray article (via Frank) brings up a really important point.  At some point soon, it may be necessary to revisit the wall between audio streaming and downloading.  People can record audio streams all they want, and, even if it’s illegal, it may be very difficult to stop. Moreover, given how the sound recording compulsory license for non-interactive steaming services, radio stations can acquire licenses without having to use copy-protection. (Note: I am not sure how the composition ASCAP/BMI licenses fit into this, but it appears their terms do not require such copy-protection either – look around, you’ll find people streaming in MP3 format.)

17 USC 114 has two interesting clauses in this regard.  114(2)(C)(vi) basically says that streamers can “take no affirmative steps” to enable recording and should restrict such activity to the extent is able to do so.  114(2)(C)(viii) states that streamers cannot interfere with “technical measures that are widely used by sound recording copyright owners to identify or protect copyrighted works.”

Nothing here seems to requires streamers to use an encrypted format. I’ve wondered whether these clauses would get dealt with in court, or whether we’d end up seeing an amendment to mandate DRM use to get the compulsory license.  Because, the Internet radio compulsory license couldn’t get any messier, right?

As Bray points out, this is another area where social norms and expectations are incredibly out of line with copyright.  Most people I’d bet think recording and permanently keeping copies of TV programs is totally legal.  Maybe, but I’d bet not, in that they’d be regarded as superseding a purchase.  With Internet radio, a copy is ending up on my computer in some form – whether you call it a stream or a copy, the bits are on my computer. Yet I can only acquire those bits on the condition that I not render them in a permanent state to replay them. 

Can norms reach this level of complexity?  Can technology fill the gaps?  Open questions I will have to get back to another day….

Filed by Derek Slater at 8:37 pm under General news
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More news via Paidcontent.  Still very short on details on whether we’re likely to see PPD or subscription services come out of this.  Rafat notes that services might allow sharing of low-quality copies for free and enable people to purchase the legit copies.  I say again: why not use superdistribution to bring this sort of service direct to consumers who are already in P2P?  Why not embrace P2P, not just by creating analogous environments to current P2P systems, but by selling directly through the current systems?  If you use something like Weedshare, you can use consumers as distributors and take your content to all the millions of eyeballs already in KaZaA, eDonkey, et. al. 

It’s worth noting that John Beezer, head of Weedshare, sees superdistribution working hand in hand with closed, filtered networks – see his comments to this post.  To me, the real power in embracing superdistribution now is that it gives a convenient way for people to convert their currently illegal behavior into lawful forms, retaining the ability to share and try out content.  You don’t have to shift consumers out of current P2P environments, and you don’t have to convince P2P services to filter.

This would, of course, require giving up on suing P2P networks and spoofing, but I don’t see the industries gaining much from that right now. 

Filed by Derek Slater at 2:36 pm under General news
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