A Copyfighter’s Musings

See these articles, via PaidContent.  Notably, eBay is not allowing people to resell items they have downloaded and thus may have the right to resell under section 109 (emphasis on the word may).  Only copyright owners or those who are explicitly permitted by copyright owners to sell are allowed to use the service.

Filed by Derek Slater at 11:07 pm under General news
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Via John Palfrey: The Harvard Law Bulletin has a nice issue with several articles about copyright and IP.  Read it all, but check this from the main article about the Digital Media Project scenarios:

“We know [the content industries] are skeptical [of a Voluntary Co-op or ACS model],” Fisher says. But “if their situation gets worse, they may have no choice.” The Berkman Center, in collaboration with others, is developing a pilot project of this model, which they hope to implement on a voluntary, subscription basis. “If we can get the demonstration project up and running, it may reduce the resistance, if we can show it actually works,” he says.

Filed by Derek Slater at 10:14 pm under General news
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Apparently, the lawsuit against Hummer Winblad and BMG for funding Napster has been given the go ahead.  Frank links to the decision. 

Hey, maybe they’ll end up buying BMG and then suing their lawyers for even bothering to defend the company, because a record company has never done that before – oh wait.  Wonder if we’d see more of these suits if the Induce Act were law? (Cue Ernest post on the interaction between the Induce Act and tertiary liability.)

Remember: this case involves record companies suing another record company for supporting an innovative business model.  And we hope these people will come together on a VCL.  Sheesh.

Filed by Derek Slater at 9:55 pm under General news
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I’m a little swamped this week, so I can’t do these pieces justice yet. That shouldn’t stop you from doing so.

1.  I hope you remember John T. Mitchell, strong consumer advocate and formerly of Public Knowledge.  From what I know of him (website articles, pho postings, and an interview I did awhile back), he often points out the free uses, like private performance and first sale, that have fallen by the wayside in the DRM era.  He also discusses DRM’s restrictions in light of copyright misuse and antitrust.  DRM: The Good, The Bad, and The Ugly seems to bring many of these ideas together in a very thorough manner.  I haven’t read it critically yet, but from my brief skim, it is well worth your time.

2.  You probably remember Lee Hollaar’s incredibly informative Legal Protection of Digital Information treatise.  According to Professor Lessig, Hollaar’s article Sony Revisited “is in part responsible for Congress’ current infatuation with the Induce Act.”    Be sure to read not only the article, but also Lessig’s response, Ernest’s (pre-)follow-up, and the comments at Lessig’s blog, one of which is a lengthy response from an author cited in the article.

Update: Here’s Hollaar confirming that the Induce Act came in part as a result of his article.  Also, see this nice clarification to Lessig’s separation of powers argument – it’s a key point.

Filed by Derek Slater at 10:28 pm under General news
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Having seen this around the office and in Siva’s new book, I wanted to link to this piece from Harper’s Magazine.  A German customer writes to EMI, complaining that his newly purchased Toto CD can’t play because of copy-protection. EMI responds by insulting him, accusing him of supporting piracy, and by saying, “Should you legitimately have a playback problem with the CD that you complained about, we would ask that you specify the exact CD player model for us. The scenario you put forth–multiple players failing to play the CD–can only be the stuff of fairy tales, given our experiences.”  EMI’s letter concludes by telling him that they are going to force copy-protection onto consumers no matter what.  Read all of “Toto Recall.”

Filed by Derek Slater at 10:53 pm under General news
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Seems like a pretty interesting choice.  Don’t know much about him, but he’s not an insider, or a lobbyist, and he doesn’t seem to have much of a Hollywood connection.

Filed by Derek Slater at 10:49 pm under General news
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• A nice article from News.com on P2P users shifting away from KaZaA, primarily to eDonkey.  It covers a couple interesting issues, including how this might make it easier to acquire movies and software.  It also might lead to greater privacy protections and perhaps spoofing countermeasures.  From what I know (and I haven’t investigated this thoroughly enough), Sharman has not added any sort of proxying and encryption into KaZaA, nor a peer-rating system that could help defeat spoofing.  Systems like Morpheus have been much more willing to add proxy support.  I don’t know the extent to which eDonkey or other systems have added these features or are willing to.  I also don’t know the extent to which users are seeking out systems with these features; regardless, if they migrate to the systems simply because they are more efficient for sharing files, they might also adopt privacy protecting features if they happen to be available.
  
• More on taking advantage of the mobile market and turning cell phones into digital music players.  As if the silliness about the ring tone market weren’t enough, now this: 
  

  
  

  “Michael Nash, a senior vice president at Warner Music, says his company is already in discussions with its constituent labels about having studio producers create mobile mixes–such as the abbreviated 90-second or two-minute versions of songs used by T-Mobile-type download services–at the same time as the full versions of songs are created. This could help create a new market for music, in which people listen to PC-based and phone-based songs differently, he said.

  
  

  “From our perspective, it is a much more desirable outcome to have the mobile channel and online channel be differentiated,” Nash said.

  
  

  Yes, from your perspective, indeed.  It ain’t gonna happen.  You will, however, lead people to circumvent or route around your DRM (burning to CD and ripping, or recording from the soundcard), and to download from P2P rather than buy at all.

Filed by Derek Slater at 10:40 pm under General news
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Building off of its (recently updated) iTunes Case Study white paper and taking into account iTunes’ recent arrival in Europe, the Berkman Center’s Digital Media Project has produced iTunes Europe: A Preliminary Analysis.

“In its first week of operation in Britain, France, and Germany, iTunes Europe sold an impressive 800,000 songs –- outpacing its nearest competitor by a margin of 16:1.  While this initial success attracted attention from the recording industry, lawmakers, and business executives, a number of questions remain about the future of iTunes in Europe and its ability to adapt a business model based on U.S. law to the laws and cultural norms of different countries in Europe.

The following report, iTunes Europe: A Preliminary Analysis (June 2004), by students of the Berkman Center’s Digitial Media Project, considers the legal foundation of iTunes Europe and the interplay of the service with European law.  The report examines the implications of the expansion of iTunes on the future of digital media, technology, business strategies, and international law.”

Filed by Derek Slater at 10:25 pm under General news
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Brought to you by some usual suspects, SavetheiPod.com picks up on the EFF’s idea and urges people to oppose the INDUCE Act.  Check it out. (via pho)

Filed by Derek Slater at 10:39 pm under General news
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This seemed to go under the radar.  After failing at the appeals level and on their petition for rehearing en banc, the RIAA filed a petition for cert to the Supreme court in RIAA v. Verizon on May 24.   Many people doubted that the RIAA would bother, and, with the Doe lawsuits proceeding, this might not have much practical difference to the RIAA’s lawsuit campaign.  But it’s still very much worth keeping an eye on.

Filed by Derek Slater at 10:27 pm under General news
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And much more of the Hatch floor statement grates on my nerves.  Rather than starting from the broad problems of this bill, I want to examine an interesting move in the statement’s argument:

“A rule that punishes only control also produces absurd results. Secondary liability should focus on intent to use indirect means to achieve illegal ends. A rule that punishes only control degenerates into inane debate about which indirect means was used. Thus Napster and Grokster are regulated differently – though they function similarly from the perspective of the user, the distributor, or the copyright holder.”

“A rule that punishes only control also acts as a ‘tech-mandate’ law: It mandates the use of technologies that avoid ‘control’ – regardless of whether they are suited for a particular task. Napster was punished for processing search requests efficiently on a centralized search index that it controlled. Grokster escaped by processing search requests less efficiently on a decentralized search index that it did not control. Rewarding inefficiency makes little sense.”

The point about decentralized P2P being definitively less efficient is overstated.  Beyond efficiency, there are also advantages to not having a single point of control (e.g., failure at a single point does not disrupt the entire network).

But I think the point makes some sense: it is silly that we let Morpheus get a free ride while Napster had to be shut down.  Unlike Hatch, however, I certainly don’t think that this inconsistency demands a rule such that that Morpheus is also liable. Indeed, I think we can still leave Napster liable while avoiding the “tech mandate”/tech ban problem.  To create a more consistent and beneficial doctrine, we should tweak – but not eviscerate – the Napster decision.

Interpreted broadly, Sony stands for the principle that we should let new technology develop completely unconstrained from secondary liability.  As I have discussed elsewhere, I think Sony rule should actually be interpreted a little narrower.  Sony stands for not using secondary liability to force tool-makers to modify how their tools operate, but secondary liabilty could apply to the tool-maker’s conduct in relation to the tool-user.

Think of this in terms of Napster.  The Napster decision seemed to follow this reading of Sony, noting that Napster’s conduct had to be distinguished from its architecture.  Furthermore, the court said that Napster simply had a responsibility to police cabined within the system’s architecture.  However, during the remedy phase, the court forced Napster to do something that it could not do within the architecture of its system -eliminate all infringement and implement new filtering tools.  Instead, the court could have simply asked Napster to block certain users (a power it retained through its login server) and remove particular files (not all instances of a song, which its file index did not have any ability to identify) when notified by a copyright holder.  They could do all that without changing a single line of code in the system.

But isn’t this what the Hatch aide was calling “inane”?  You might find this to be simply trying to find a loophole to protect piracy.  Those who support the negligence rule would suggest that, if one is willing to put that much burden on Napster, then why not also force them to make a small adjustment to their code that might not even affect non-infringing uses – why not go the extra step and weigh the costs and benefits?

But what change would not affect non-infringing uses, definitively?  We don’t know, and no weighing can properly take into account these undefined and thus indeterminately impacted uses.  Sony understood this point – that by constraining the way a tool functioned, we risked impairing legitimate uses.  The VCR ushered in “time-shifting,” a use that most people probably did not conceive of prior; it, and other technologies, could also usher in other untold uses, which would have been impacted by any change to the tools themselves.  Telling Napster to respond to notices of infringement is consistent with this rule as well as with a rule that forces Morpheus to do nothing.  One could sever Napster’s infringing uses from the non-infringing uses, known or not; by addressing their conduct only, new uses of the technology could continue to evolve.  In so doing, we could get rid of the de facto “tech mandate” that effectively bans centralized P2P and thus no longer “reward inefficiency.”

Certainly, even this burden on centralized P2P operators would have some impact on technology innovation, as would the benefit of infringing uses reward certain technologies.  However, I think it places a reasonable burden while largely retaining the clarity, certainty, intent, and benefits of the Sony rule.  Also, one can imagine similar problems with this rule as with DMCA 512 notifications.  All the more reason to revisit exactly how we deal with counter-notification, but that I’ll have to leave for another day.

One could also argue that, though this rule might make Sony/Napster/Grokster consistent, it’s still an “inane debate” because it does nothing to stop piracy.  People who want to infringe would simply move to Morpheus.  True enough.  I’m not trying to come up with a rule with the sole objective of ending piracy.  Indeed, I like this rule in part because I think the alternatives, like a negligence rule or the INDUCE Act, would be so dreadful for innovation and would do little to stop piracy. I’ve addressed the negligence rule here. As for the INDUCE, if it is as benign as Hatch makes it out to be, then it will have little impact on piracy; in particular, non-commercial, open-source developers of Gnutella, Fasttrack, et. al. clients could quite plausibly argue that they had no intent to aid infringement.  So I concede the point about this change not fixing the piracy problem, but I don’t think that that makes this adjustment to current doctrine an inane undertaking.

Filed by Derek Slater at 11:54 pm under General news
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In the INDUCE Act floor statement, Orrin Hatch’s aide citing the Berkman Center for the proposition that P2P are “piracy machines” that trick consumers (see page 3):

“A secondary-liability rule that punishes control and immunizes inducement is a public policy disaster. It seems to permit the distribution of ‘piracy machines’ designed to make infringement easy, tempting, and automatic. Even Harvard’s Berkman Center for Internet and Society suggests that this is happening. The Center warns that ‘it can be extremely difficult for a non-expert computer user to shut down’ the viral redistribution that can otherwise automatically make the user an international distributor of infringing works. The Center notes that the ‘complexity of KaZaA’s installation and disabling functions’ may leave many users unaware that they have become a contributor to global, for-profit copyright piracy. Unfortunately, ‘piracy machines’ designed to mislead their users are just one of the perverse effects of a secondaryliability rule that punishes control and immunizes inducement”

The quoted statements are not so much Berkman Center policy as they are excerpts from the Alaujan amicus brief.  And I just plain hate to see such quotes used out of context when the Center has spent so much time trying to push forward meaningful, balanced debate on these issues.  But that’s how it goes sometimes, I suppose.

See also, the FTC’s comments today that play down supposed trickery of the P2P services and imply that working with the industry is a probably sufficient.

[added, 6/24 10 AM] Note, to avoid any confusion: In this post and all posts, I speak for myself only, not for the Berkman Center or for any other institution that employs or has employed me.

Filed by Derek Slater at 11:52 pm under General news
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Can’t comment on this now, but please be sure to read the following three posts:

Cory’s talk on DRM at Microsoft; Ernest’s response; Wendy’s response to Ernest

Frank has been tracking this nicely, so look there as well for more updates.

Filed by Derek Slater at 8:36 pm under General news
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Frank points to a couple articles about Napster deciding to give away Rio Chiba portable players to users who sign up for one year subscriptions.  What’s funny is that the Chibas can’t play music that a subscriber downloads; you have to buy the song for a dollar in order to move it to a portable device.  Unless you can upgrade the firmware (which is quite possible), you won’t be able to even transfer the songs when Janus rolls out.  So this isn’t just a means to draw people to the Napster service, but to get them to pay for permanent downloads.

Note that this strategy is in part a result of the iTunes-iPod tie or more generally the DRM+DMCA lock-in factor.  Companies can’t easily compete in the store and player markets independently.  If you have a player that can’t interoperate with store’s songs, your product is worthless. Similarly, if your store sells songs that aren’t supported by the most popular hardware, your songs are worthless.  Thus, lack of interoperability creates barriers to entry in both markets.

For more, see the now white paper edition of the Berkman Center iTunes Case Study.

Filed by Derek Slater at 10:59 pm under General news
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As is probably apparent, I haven’t had enough time to link to all the great posts out there.  Please visit everyone on the blogroll, esp. Frank and Copyfight.  The big news of the last 24 hours has been the INDUCE Act.  I wonder how much of this blog is an illegal inducement under the Act. Sigh.

In any case, here are a couple of links to get you started: Copyfight, Frank, SethF, Ed Felten.

Also, see my earlier article called, “Protecting Sony and the Internet: A Discussion and Critique of Imposing Harsher Secondary Copyright Infringement Rules to Inhibit Peer-to-Peer File-Sharing.”  Therein, I criticize a negligence approach to secondary liability, which doesn’t even come close to the harm that this inducement standard would do.

Filed by Derek Slater at 10:56 pm under General news
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