A Copyfighter’s Musings

There’s another bit of interesting info in the Strumpf and Olberhozer study that hasn’t gotten a lot of play, but that I find absolutely fascinating.  Please turn to pages 10-12, particularly this line from page 12: “While the left panel indicates that U.S. users downloaded almost half of their files from other U.S. users, the remainder comes from a diverse range of countries including Germany, Italy, and Brazil.”  Germany ranks at 16.5%, and no other country hits above 6.9%.

It’s obvious that the percentage would be less than 100% US to US, but less than half?  Moreover, who would expect that .7% of US downloads come from Polish users?

This really points out that, if you believe lawsuits are part of The Solution, the new lawsuits overseas are critically important.  At the same time, it demonstrates some serious difficulties.  The RIAA needs to sue in numerous jurisdictions, possibly with slightly different, complicating laws (see Canada).  In the end, how far can you chase people around the world?  If you end up with no US uploaders but still US downloaders, you haven’t done anything.

Filed by Derek Slater at 3:16 pm under General news
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Everyone’s been talking about the Strumpf and Olberhozer study that says file-sharing does not impact CD sales.  Prof Felten summarizes and analyzes it and many other studies nicely.  Don’t have much to add, but here’re a couple things missing from the various posts:

First, Prof Liebowitz, who has a contradictory economic analysis, already has posted a lengthy critique.  Apparently, Strumpf and Olberhozer won’t be providing their data to the public in the near term.  They had some back-and-forth at the Future of Music Summit (see Sivers’ notes), where Strumpf explains why they won’t provide data – somewhat unclear to me.  Liebowitz also mentions the Boorstein study and offers a brief criticism; he will be reviewing Boorstein’s data, apparently.  On all counts, I have no idea, certainly not enough economic expertise, to say who’s right.  All it does is confirm that nobody really knows what’s happening.

What I’m left with is my intuition that, in the long run, it’s reasonable to believe that easy access to free, fairly high quality music files will do more severe harm to the industry.  It’s also reasonable to think that, all other things being equal, the long run will bring easier access, as more people have broadband, P2P evolves, etc.  Does that justify the RIAA’s panic? I don’t think so, and I obviously disagree as to what should be done about the potential harm of P2P.  But I also cannot dismiss their overall reasoning easily.

Second, some people tend to think of the surveys on file-sharing as all opposed to Strumpf and Olberhozer.  But see slide 7 in this InsideDigitalMedia interview as well as this article on a Jupiter study.  That data is contradictory too – just as confusing.

Filed by Derek Slater at 2:39 pm under General news
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CDBaby‘s Derek Sivers blogged the Future of Music Coalition Policy Summit and has trackbacks listed for other bloggers. Enjoy!

Filed by Derek Slater at 1:03 pm under General news
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Earlier, I discussed Mark Lemley and R. Anthony Reese’s Stopping Digital Copyright Infringement Without Impeding Innovation, in which they suggest several ways to deal with P2P infringement instead of secondary liability for technology providers.  One of the solutions was a sort of quick infringement lawsuit process modeled after the UDRP. At the time, I was a little skeptical of it, mostly because of how they made it optional.  In a new paper (via Prof Solum), Lemley and Reese provide a much more detailed proposal and suggest Congress impose the process for certain copyright infringement over P2P.  Hopefully I’ll have comments on it later.

Filed by Derek Slater at 8:04 pm under General news
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Frank points to news of Comcast’s sending letters to customers who MGM says are infringing.  Pretty routine, right?  What’s interesting is that they frame it as a legally-compelled DMCA notice and takedown for P2P users.

As I’ve discussed before, notice and takedown does not apply to 512(a) providers, and P2P falls under 512(a) just as it did in Verizon.  However, many ISPs may still feel the need to pursue takedowns because of 512(i), which requires disconnection for “repeat infringement.”  Comcast’s actions are but one example that the practice is continuing after Verizon.

The letter sent to the BitTorrent user also notes Comcast’s Acceptable Use Policy.  Usually, whether Comcast chooses to follow its policy would be a matter between it and the user.  Because 512(i) requires that ISPs “adopt and reasonably implement” repeat infringer policies, choosing not to follow whatever the Policy says might be a problem for Comcast; MGM could say they’re no longer implementing the Policy.  The Policy only says that Comcast will take action as the DMCA requires, so it might not be a problem, but it is another factor in the mix.

Filed by Derek Slater at 6:48 pm under General news
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“Pansmall”
(click for larger)

Made by John Horton, in Rapid City, SD, upon seeing my hat.   He was one of many great breakfast partners throughout my cross-country trek, now more or less over as I rest at my mom’s in Las Vegas before heading to San Francisco for the summer.  I seem to have missed much excitement around here, so I’ll be doing some catching up, and then I’ll get back to posting on my (irregular) summer schedule.

Filed by Derek Slater at 1:06 pm under General news
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Regular readers may have noticed the irregularity in my postings recently. As I mentioned, I’ve been out of school for the last two months, doing some research for Berkman and planning a road trip that will begin this Saturday. I’ll be on the road until early May, doing parts of the southern and northern routes, including stops in Orlando, the Everglades, New Orleans, Memphis, St. Louis, Chicago, the Badlands and Black Hills, Yellowstone, Zion and Bryce, the Grand Canyon, and Las Vegas. For the first week, I’ll be with my girlfriend, but from then on it’ll mostly be just me. Though I won’t be doing any blogging, I’m sure this is going to give me plenty to write about.

I will end up in San Francisco, where I’ll be for the summer. My summer schedule will also involve a slightly slower posting schedule (more offline reading and writing, less on the fly commentary on news, same as last summer). For of those you in the physical vicinity, I hope we can have another EFF MeetUp get together. Looking forward to seeing (and meeting) you all.

Filed by Derek Slater at 11:45 pm under General news
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Along with the blogroll, keep your eye on the Digital Media Project site.  Some work from the Fall will be up within the coming days (the work I’ve been doing more recently is a follow-up project).  The Speed Bumps conference is also right around the corner.  Stay tuned.

Filed by Derek Slater at 1:27 pm under General news
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I don’t get it. How can Real possibly criticize Apple for its tying the iPod to its own proprietary DRM? Sean Ryan pulled the same crap at the Digital Music Forum.  Real is introducing its own proprietary Helix DRM into the market – they’re pursuing the exact same strategy.  Sounds like it’s just sour grapes that they didn’t get to the market first.

Filed by Derek Slater at 10:38 pm under General news
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First, Lessig and Co survived the Golan motion to dismiss. Now check this out.  Very exciting and, most of all, very ambitious.  I have no ability right now to speak to the possibility for success.  At the least, it will further explore the “traditional contours” aspect of Eldred.  See previous discussion here and here.

Filed by Derek Slater at 10:35 pm under General news
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Public Knowledge’s Mike Godwin wrote an interesting citizen’s guide to DRM.  The most interesting bit for me was the semi-technical explanations of different techniques, how they work, why they might be infeasible, etc.  Overall, it’s a good intro to the various issues involved with DRM. 

One criticism: take a close look at his concluding section and suggestions – they didn’t make much sense to me. He discusses how content holders could release more content into the public domain, or sell public domain content without DRM restrictions, so that “consumers become educated that it’s not [in his example]e-books or digital-media formats that are inherently limited – it’s that the limitations have been insisted upon by particular publishers or artists.”  Do consumers not get that?  What evidence does he have that this is a core problem?  Doesn’t the high traffic over P2P and usage of MP3 players suggest that consumers know fully well that digital-media formats are not “inherently limited”?  Don’t consumers already prefer less restricted content, and isn’t that already obvious from iTunes doing well and from survey data? His particular example deals with e-books, and he suggests that market isn’t succeeding because of DRM restrictions – but isn’t it a bigger problem that consumers still are not accustomed to digital reading devices (and that such devices are not yet of a high enough quality)?

What does he mean that this will lead to a more “rational market”?  He suggests that this will lead to “humane DRM” but he never really defines what this would be.  He says that this will lead to less restrictive and thus more humane DRM, but not what would be optimal.

And given all the time Godwin spends discussing why DRM won’t prevent infringement, I’m left wondering why DRM is a good idea at all.  What does he mean by “The question before us, then, is how to harness both the technical ingenuity behind DRM and the human drive to share the works that we enjoy in a way that leverages the best from both”?  Might a better solution simply be no DRM at all?

Filed by Derek Slater at 9:55 pm under General news
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That’s what Fraunhofer is calling their new project.  See this fawning Wired article (gotta be a stringer) for the dumbed down version – the site is pretty straightforward.

The basics: Light Weight DRM (LWDRM) itself does not directly impede the manipulation and copying of copyrighted content.  Instead, to make certain uses (as determined by copyright holders), users will have to include a certificate, provided by a third party, that both links the file to the user and includes the necessary decryption key. In addition, Fraunhofer intends to implement watermarks, though this seems like a minor part of LWDRM.  Regardless, the point is to allow copyright holders to identify the origin of content distributed in an infringing manner.  Those users could then be sued for infringement.  LWDRM accepts and expects that infringement will still occur on a small scale, alongside perfectly legitimate copying for family and friends.  Fraunhofer only expects that LWDRM will help stop large scale infringement, particularly over P2P networks.

Notably, Fraunhofer says that this will encourage people to share only with trustworthy parties – sound a lot like Clay Shirky’s File-Sharing Goes Social (in addition to those saying “share with friends not with strangers”).

Sounds good, at least at the outset, but it’s got problems.  Some may be technical – though I’m no expert, I know that at least watermarking is difficult (see summary in this interesting doc).  The public key infrastructure part seems plausible and interesting, but everything is evadable (see Darknet paper).  I can’t imagine being much harder to evade than your typical music store’s DRM.  There are also some privacy issues, though Fraunhofer intends the key signing to be pseudonymous and all done with a “trusted” third party.

I’m also not sure how much it will actually achieve its aim. LWDRM’s tries to stop infringement before the fact by enhancing the after infringement threat of a lawsuit.  Just like other DRM, it does nothing to actually stop the spread of the copy once its on P2P; the only difference between this and other DRM is that LWDRM actually lets you spread a functioning copy over P2P.  With this in mind, does this add anything to the current threat of lawsuits?  Does the possibility of having downstream infringements traced back to you really add to people’s fears?  Moreover, it is unclear to what extent LWDRM would make it more likely that one could be successfully sued.  Some uses that involve sharing with friends will be perfectly legitimate.  If the first user’s sharing is legitimate, but the receiving second user decides to share the file, it doesn’t help that you know where the copy originated – the initial sharing could still be legit.  There’s room for some plausible deniability.  Even if the first sharing was infringing, that does not necessarily make the the first user responsible for the second person’s infringement, and thus LWDRM won’t necessarily lead to enhanced penalties.

Filed by Derek Slater at 7:32 pm under General news
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It’s attack of the killer blob … I mean, blog!  The new Copyfight blog has consumed Donna, Elizabeth, Ernest, Jason, Wendy, and Aaron.  Their collective wisdom will make for most convenient, one-stop copyfight reading (though they’ll still maintain their own pages, too).  Good luck to all, and update your blog rolls accordingly.

Filed by Derek Slater at 6:39 pm under General news
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Even though I’m behind on posting once again, gotta post on this because I haven’t seen anyone else point here: Sony music download service to launch in June.  I think my headline is more accurate.

Sony’s inability to sort out how to get its music foot in step with its technology foot has been discussed at length.  This is but one example.  Sony isn’t licensing to some Euro stores before it releases its Connect service.  From the looks of this article, they might not even be adding other major labels to Connect’s catalog.  Apparently, Sony hasn’t learned from Pressplay (which Sony invested in) and Musicnet that it’s advantageous to license widely, outsourcing storage and distribution to a better-equipped, dare I say smarter company. 

But Sony likes to think of itself as a smart technology company. So smart, in fact, that it’s releasing music in the ATRAC3 format, wrapped in – you guessed it – Sony’s own DRM.  It used to be called OpenMG X, but they must’ve thought the X was too silly, so it’s now just called Open Magic Gate (OpenMG).   Maybe it’s name of the something you do in a video game, but I have no clue what makes this proprietary DRM “open” or “magic.”

“Gate”, I’ll give to them, because it sure does fence you in.  Apparently, Sony is still interested in proving that this whole iPod thing is just a fad.  ATRAC3 is the format for Sony’s MiniDisc players, and songs can only be transferred to “secure” Sony products.  I’ve got some friends who love their MiniDisc players.  Those friends also swear they can hear the difference betwen ATRAC and 128 kbps MP3s, and I’d say they’re just as loony as Sony.  MiniDisc has never and will never be the wave of the music future.  With all the great, tiny flash memory and hard drive portable MP3 players, I don’t see how building the business around these removable media players is worth it. (For the short run, the players should still do alright – I’m still buying a cheap MP3/CD player instead of an iPod. But the other players are going to come down in price soon enough. … Did I mention that Sony’s CD players only play MP3 and ATRAC as well? No AAC, OGG, WMA, etc.)

And be ready for Sony to move to the domestic market soon enough, bringing more incompatability fun with it.  I thought Sony was working with Phillips on DRM that anyone could license – a Phillips executive even said: “The electronics industry recognizes that Microsoft is a formidable player, but consumer electronics makers do not want to become dependent on Microsoft. They need an interoperable and independent system, DRM is an accelerator which will boost digital sales of media, because it will convince media companies their content is protected. It should not be a competitive weapon.” Sony doesn’t seem to actually buy that.  They’re trying to set the standard, and they want control over the devices.

Well good for Sony, but I ain’t going to buy its players, its music services, even its cameras (with proprietary Sony memory).  To me, it’s a total waste. (See also some previous posts on this matter).

Update: Adam Thomas makes a good comment with which I have little disagreement.  See here for my comments.

Filed by Derek Slater at 4:12 pm under General news
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Update, June 6, 2006: A draft bill to reform Section 115 would do serious damage to fair use – take action now to stop this dangerous proposal!
Today (March 11), the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property held a hearing on “Section 115 of the Copyright Act: In Need of Update?” (View Webcast). Section 115 is the compulsory license for making and distributing phonorecords and a thorny issue for digital music services. Testimony was given by:

DiMA‘s Jonathan Potter – arguing that mechanical licensing process is insufficient on several levels. Section 115 licensing is inefficient, with complicated notification requirements, an incomplete database of music, per-work penny-rate rather than percentage of revenue fees. He suggests changes on all levels. It is unclear whether streaming services and servier copies require mechanical licenses, and whether the latter as well as tethered downloads fall under the compulsory. Potter suggests that streams should be treated as performances, downloads as copying for distribution with temporary or incidental copies included with in the compulsory fee. He considers the Harry Fox Agency insufficient, as it only represents 60-65% of musicians; he also criticizes the Agency for demanding mechanical licenses for uses beyond download services and for a lack of transparency and fairness in its licensing practices. Finally, he suggests turning section 115 into a blanket license, with similar records and payment procedures as with ASCAP, BMI, and Soundexchange. (See also Potter’s speech at the Digital Music Forum).Register of Copyrights Marybeth Peters – described many of the same issues. She notes that the Copyfight Office is going to consider several proposals to streamline the compulsory licensing process. While she didn’t argue for any particular policy option, she outlined the different directions that could be taken. She also reaffirmed her previous argument that incidental copying for streaming is fair use, or at least should be treated in parallel as such copying for sound recordings.

National Music Publishers Association’s Carey Ramos – argued that there is no need for legislative change, pointing to the recent success of iTunes and related services. Ramos disagreed with Peters’ assessment of incidental copying. He also noted that mechanical royalties were needed in addition to performance royalties to make up for displaced record sales, and that the line between temporary and permanent copies might be difficult to assess.

RIAA’s Cary Sherman – argued that section 115 is deficient and may need to be changed, but hopeful that some problems could be resolved by the relevant industry parties. He mainly focused on impediments to dual-session CDs, licensing artists not working through the Harry Fox Agency, and the per-work penny-rate fees. He also lauded the subscription service agreement reached with Harry Fox in 2001, which Potter extensively criticized.

It’s amazing that this is the same law that came in response to player pianos and functions as a compulsory covers license. Hurray for copyright law’s complexities.

Filed by Derek Slater at 9:50 pm under General news
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