A Copyfighter’s Musings

Testimony of Sam Yagan, President of MetaMachine, creators of eDonkey:

It’s worth reading the whole thing, as well as testimony from others at today’s Senate Judiciary Committee Hearing.  Mary Beth Peters suggested
that no legislation is necessary with respect to secondary copyright
infringement, but continued to push for reform of Section 115. 
Mark Lemley offered
three legislative areas worth attention: making suing for direct
infringement easier, reducing barriers to rights clearance (e.g.,
Section 115 reform), and limiting statutory damages for secondary
infringers.

Filed by Derek Slater at 3:27 pm under General news
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Following up on my post, Patrick Ross decided
to see for himself how Google Prints works and ended up in need of
clarification. After doing a search for the word “copyright,” he was
able to see full pages from several books.  Patrick wonders,
“Perhaps the author gave Google permission to show full pages.”

Yes, indeed the copyright holder did.  Those books are part of the Google Print Publisher Program.  Copyright holders can give Google explicit permission to show entire pages from the books.  Google then gets to show ads on the pages and shares the revenue with the copyright holders.   (In addition, Google will show the entirety of public domain books since they do not need permission to do so.)

From all other books, Google only shows small snippets and bibliographic information with no ads, unless the copyright holder has specifically opted out, in which case Google will not scan or show the book at all.

Now I’m no investigative reporter, but have I found yet more middle ground?

Filed by Derek Slater at 11:57 pm under General news
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Susan Crawford has a vision for OneWebDay
– an Earth Day style celebration of the Net.   In most cases
I’d be highly skeptical of such a thing, but it apparently only takes
one breakfast with Susan (and Berkmanites) to make a believer out of
me. 

We’ve got 365 days; let’s go to work.  What would you like to do
to celebrate what the Net’s done for you individually and us
collectively?  Make sure to let Susan know, too.

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So many people (including, unfortunately, myself
at times) have misreported precisely what Google Print does with books
not in the Publisher Program.  When people know what the Authors
Guild is really claiming, I’d bet many of the most sincere copyright
maximalists/neoclassicists/physical-property-equivalence-makers would
agree that Google’s in the right.

Case in point: James Delong.

Well put, James.  He ultimately believes that “Google might well
win a decision” because their intermediate copying reduces transaction
costs. I’m not sure I agree on that narrow view of the fair use
interest, but I think I share his basic sentiment.  This isn’t
about Napsterization, this isn’t about “copyright nihilism” – it’s a case of copyright holders’ overreaching in ways that go against the public’s interests.

See also, EFF’s press release today, pointing to Jonathan Band’s informative legal analysis.

Filed by Derek Slater at 7:05 pm under General news
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Author’s Guild sues over Google Print.  Complaint via BoingBoing.

Previous coverage.

Filed by Derek Slater at 11:40 pm under General news
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Inducement lawsuits, coming to a P2P provider near you!

Cary Sherman expressed optimism at FMC that converting the existing systems to
licensed, filtered networks will be important, but I’m not so
sure.  Why won’t we see the same behavior that we saw after
Napster started filtering, with users flocking to unfiltered
networks?  Only if the converted services – whether they use
Snocap or some other technology – are truly attractive from the
consumer perspective will behavior be any different this time around.

Filed by Derek Slater at 3:25 pm under Big Ideas
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FMC wrapped up earlier today. I’ve recorded a podcast summarizing and extending some of my thoughts from my Paidcontent.org posts. For those who missed out on some of the coverage, here’s a linked recap:

HD Radio Debate Pours Salt in RIAA, CEA Wounds
New Economics in the Music Creation and Distribution Chain
The New Face of Marketing: Search and Recommendation Systems
Main Event #1: Reforming Licensing of Music Compositions
Main Event #2: From Mixtape to Playlist, Listener to Tastemaker
Wrapping Up the First Two Days
Resetting the P2P Table
Monetizing the Back Catalog
Monetizing Sharing Through Recommendation Systems
What of Payola?

Other blogs coveraging the conference:
Coolfer
IPTAblog
Copyfraud

Filed by Derek Slater at 6:00 pm under General news
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For the next two days, I’ll be blogging over at Paidcontent.  I may have another podcast over here, too, but mostly everything will be right here.

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Only have a few minutes here before I head out, but wanted to talk out some of my notes before I forget the day’s takeways.  In the process, figured I’d try out podcasting.

FMC Podcast, #1

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If you buy music from an online music store, you may be getting much less than you thought. Today EFF released “The Customer Is Always Wrong: A User’s Guide to DRM in Online Music,” which exposes how today’s digital rights management (DRM) systems compromise a consumer’s right to lawfully manage her music the way she wants.

The guide takes a close look at popular online music services provided by Apple, RealNetworks, and Napster 2.0, as well as Microsoft’s “Plays For Sure” DRM campaign. In an effort to attract customers, these companies try to obscure the restrictions they impose on you with clever marketing. Unfortunately, bypassing these hidden restrictions to make perfectly legal uses puts you at risk of liability under the Digital Millennium Copyright Act (DMCA).

This guide “translates” the marketing messages, giving you the real deal rather than the spin. Understanding how DRM and the DMCA pose a danger to your rights will help you to make fully informed purchasing decisions. Before buying DRM-crippled music from any service, check out the guide and be sure you understand how the service might limit your ability to make lawful use of the music you purchase.

(Cross-posted at Deep Links)

Filed by Derek Slater at 3:58 pm under General news
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Via Brad Hill comes this new blog:

“Through the Electronic Frontier Foundation I and my firm have undertaken to represent people in our area who have been sued by the Recording Industry of American (RIAA) for having computers whose internet accounts were used to open up peer-to-peer file sharing accounts.

“I find these cases to be oppressive and unfair, as large law firms financed by the recording industry sue ordinary working people for thousands of dollars.

“I have set up this blog in order to collect evidence and input about these oppressive lawsuits.”
He is apparently representing the White Plains woman who’s refusing to settle her case.

Filed by Derek Slater at 12:35 am under General news
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 News.com reports on the breakdown in negotiations between subscription services and music publishers.  Good times:

“The services say that figure is far too high, and have suggested 6.9
percent instead. Both sides have now stopped negotiating and are
trading angry letters instead.” (emphasis added)

All the more reason to reform Section 115 and restructure the way the composition right is dealt with. 

Let this be a reminder that the record labels’ position as the
unwilling intermediary has sometimes been overrated. relatively speaking – licensing the
composition right has also been unnecessarily difficult for online
services.

Filed by Derek Slater at 9:59 pm under General news
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The always excellent FMC Policy Summit is right around the corner, Sept. 11-13 in D.C.  Highlights: 

• Panel 04: State of the Union featuring phoster Jim Griffin, FCC Commissioner Jonathan Adelstein, RIAA’s Mitch Bainwol, Shawn Fanning, songwriter Joe Henry, MSFT’s Andrew Moss, Marybeth Peters, and Gary Shapiro.
  
• Panel 06: I Am The DJ: Podcasting, Webcasting and Blogs
  
• Panel 11: Radio, Radio: a Discussion on Payola

And many more.  I’ll be speaking on Recommendation Engines and the 5 Cent Solution, featuring Professor Daniel Levitin, Metabrainz’s Robert Kaye, The Nation‘s John Nichols, GartnerG2’s Mike McGuire, and mastermind Sandy Pearlman.  The so-called 5 Cent Solution is Sandy’s bag.  Among other things, Mike and I will be talking about our joint research into music taste-sharing tools, which I’ve written about before here.

Hope to see you there.  It’s not too late to sign-up.

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I still want to do more substantive writing on Google Print, but for now a short correction.  Earlier,
I suggested that public domain books would be shown in full, but Google
allows people to see only a few pages from other books for a given
search.  They do – but only books explicitly authorized as
part of the Google publisher program. 
For all other books (now, all others that publishers haven’t explicitly
forbidden from inclusion), Google only shows bibliographic information
and a few sentences surrounding the search term. 

This seems even less objectionable and a particularly relevant point in light of Siva’s hypo involving poetry.
I know I shouldn’t fight the hypo, but I think this greatly narrows the
array of unique variations Google would have to deal with in order to
not show
the “heart” of a work.  This also further demonstrates why it’s critical to
focus on what Google actually displays, rather than the intermediate
copying of the entire book.

Filed by Derek Slater at 1:45 am under General news
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James DeLong’s recent comment on this article from Glenn Reynolds raises an intriguing question for me: where do groups like PFF and others who are normally at loggerheads with the EFF stand on proposed revisions to Section 115?

Let
me back up a step.  Reynolds laments the difficulties in licensing
podcasting.  One of the key problems is that podcasters not only
need licenses from holders of the recording copyright (typically record
labels), but also from holders of the composition copyright. 
What’s more, for a single use of a composition, podcasters are being
asked to pay twice – once to those who license performances (PROs),
once for those who grant mechanical licenses (Harry Fox Agency). 
Those organizations represent the same artist, but are effectively
competing with each other for licenses.

This problem doesn’t just affect podcasters.  As Register of Copyright Marybeth Peters explains, problems licensing compositions have held back all online digital music services.  In fact, basically everyone
in the music industry agrees that some change must be made to licensing
compositions and, more specifically, mechanical licensing, though they
haven’t been able to agree on the particulars.

Fred von Lohmann also applauded Peters’ reform proposal.  As he explains:

Perhaps most importantly, these MROs
would have the power to grant blanket licenses to individual P2P
file-sharers, just as envisioned in EFF’s white paper, A Better Way Forward.

This is an important step in the right
direction, creating the prerequisites for a real, market-based solution
to the P2P dilemma.”

And that brings us back to James DeLong and PFF. They continuously
beat the drum of market-based solutions.  They must recognize that carefully structuring and allocating rights can be crucial to achieving efficiency,
just as Peters appears to.  DeLong urges laws in this context that
would reduce transaction costs and ease licensing of novel digital
music services, without incorporating “compulsory licenses and
price-fixing.”  Peters’ proposal is precisely that sort of
proposal; it even eliminates the Section 115 compulsory.

Thus we might have found at least some elusive middle ground. 
At least I hope we have.  If I’m wrong and this proposal (or other
similar proposals) isn’t something PFF could get behind, then I’d love
to know why.  Hopefully, they will allow an exception to the Everything Fred is False (EFF) axiom, which states that the right answer is opposed to whatever Fred von Lohmann avers.

(For what it’s worth: in the post Patrick Ross cites,
Fred doesn’t say that rights holders should simply “throw up their
hands” in the face of the Darknet.  Instead, he lays out the
options we have given that the DMCA is and will be entirely
inefficacious in preventing widespread infringing distribution of
copyrighted works online.  Some options do involve heightened
enforcement of various kinds.  Fred suggests voluntary “collective licensing”,
which is, of course, what Register Peters is also supporting.  At
no point does Fred demand that we “junk the current copyright system”
in favor of compulsory licensing.  In fact, EFF’s white paper
specifically says, “Government involvement [through compulsory
licensing], however, should be a last resort.”)

Filed by Derek Slater at 1:16 am under Big Ideas
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