Law and Information

Here are the keywords I wrote down during Marybeth Peters’ (U.S. Register of Copyrights, United States Copyright Office) statement here in Rome, which she delivered in the context of the final policy roundtable aimed at identifying priority issues, tools, and policy challenges.

• We must adjust our copyright laws to the digital environment. Copyright law has always responded to new technologies.
• Must be an internationally coordinated response due to the global nature of the Net.
• If copyright owner choose to use TPM, those TPM must be protected. Both copy & access controls.
• Key questions to ask: Are there new rights that are required to protect creators? But also: Do we need new exceptions (e.g. for libraries). Third, what are appropriate remedies (e.g. criminal penalties).
• Other important set of question: Who is the infringer (primary vs. secondary). This issue comes up in P2P context (Kazaa, Grokster, etc.) Secondary liability must be considered at the international level.
• Licensing issues: To be saved for the marketplace, no government intervention required. Consumers know what they want. Strongly opposed to compulsory licensing (costly, ineffective). Instead: DRM, collective administration to solve the problem.

Boston Globe correspondent Siddhartha Mitter wrote a nice article on audioblogging and MP3 blogs. I’m quoted in the piece (thanks to JP for the pointer). Siddhartha invited me to comment on the current legal outlook for MP3 blogs, asking whether there are any signs on the horizon that MP3 blogs will soon be tested by litigation. The short answer is: I don’t know for sure. The long answer I provided is the following:

I cannot foresee the entertainment industry’s next move and predict whether they will be targeting mp3blogs or not. However, we might identify some of the elements that RIAA and IFPI are likely to consider before taking legal actions against mp3 sites.

1) Economic significance: From a business perspective, it is currently unclear as to what extent mp3 blogs have negative impacts on, say, CD or online sales. First, mp3blogs are operating on a small scale compared to p2p networks. Second, they are often designed as “sampling” or “promotional” tools, linking to legitimate sources where tracks can be purchased legally. Third, mp3 blogs often promote non-mainstream, niche-music. Fourth, mp3 blogs often make available songs for a limited time only — and often take tracks down when rightsholders complain. Fifth, it’s already hard to make causal connections between large-scale file-sharing on p2p networks and incline in CD sales — and, consequently, even harder to establish causality in the case of small-scale mp3 blogs. While the economic effects of mp3 blogs are unclear, litigation for sure is expensive.

2) Open legal questions: Besides economic considerations, the industry is likely to consider the specific legal situation surrounding mp3 blogs. Two aspects must be distinguished: First, the legality of making available tracks on mp3 blogs. Second, the question whether downloading songs from mp3 blogs is legal or not. In both cases, fact-specific questions remain open, which, naturally, might affect the legal analysis. However, here’s my take on it.

— As to uploading: Certainly, uploading of copyrighted materials tends to be illegal where rightsholders haven’t given authorization. However, I would argue that a fair use defense is more promising in the case of mp3 blogs as compared to p2p file-sharing networks, at least to the extent that the relevant mp3 blog is entirely non-commercial and — due to the above-mentioned sampling/promotional effect — might only (if at all) have a minimal impact on any potential market.

Further, one should note that mp3 blogs by no means only provide infringing materials. In many cases, mp3 blog operators upload songs with authorization from rightsholders — esp. from indie labels, unknown bands, etc. — or “teasers” released by record labels.

— As to downloading: As a baseline, downloading of copyrighted material without rightsholder’s authorization infringes copyright law. But users of mp3 blogs again might have a significantly stronger fair use defense than p2p downloaders. It seems likely that users can often make a reasonable argument that they used the mp3 songs for sampling or other noncommercial personal use only – imagine a case where the downloader can prove that s/he later deleted the track downloaded from the mp3 blog and purchased the relevant CD based on the sample made available on the mp3 blog.

In sum, it would probably be more promising to make a fair use defense in case of mp3 blogs. However, keep in mind that fair use is an ad-hoc and highly-fact specific defense and therefore almost impossible to apply to abstract cases.

3) Practical considerations: There are practical considerations, too. It might be more difficult to identify mp3 blogs than p2p networks, it might be much more difficult to identify potential infringers as in the p2p scenario, etc. Further, the recording industry has always seen litigation as part of an educational campaign. One might doubt what legal actions against mp3 blogs might add to this.

Regardless, I assume that RIAA and IFPI are closely monitoring the emergence and further development of mp3 blogs and might be ready to react in specific cases where mp3 blogs clearly and significantly infringe copyright, or to react more broadly when mp3 blogs will develop and get economically significant.

So, that’s my take on it. What’s your legal outlook?

Find here a terrific report by the OECD on the digital music industry (pre-release.) The report includes, inter alia, references to Terry Fisher’s seminal book Promises to Keep as well as to the Berkman Center’s iTunes case study.

The report concludes that online music distribution will grow significantly over the next few years, will force the music industry to reconsider their business models, and will continue to pose regulatory challenges to governments. The study includes a detailed impact analysis of digital music distribution on artists, consumers, the record industry, and new intermediaries.

The OECD underlines the positive potential of digital distribution, both as a new business model and a cultural phenomenon. It’s report further concludes that Internet-based piracy may be reduced, if licensed file-sharing and new forms of superdistribution evolve.

The study, part of the OECD Project on Digital Broadband Content, is the outcome of work involving a wide range of stakeholders, including many governments. It’s among the first roadmaps exploring as to how public policy should be re-evaluated in this space.

The Berkman Center’s Digital Media Team was invited to comment on a draft version of this report. Today, we congratulate the study’s authors to a thorough multi-stakeholder analysis, written in a challenging environment.

Stay tuned.

Update: The OECD report is also featured in the latest edition of The Economist (subscription required.) See also WIRED News with reactions from IFPI.

Check out the program of the 5th Frankfurt Scientific Symposium, asking: “Is there any progress in alternative publishing? Problems of scholarly information economy.” The event takes place in Frankfurt on October 22 and 23, 2005. Impressive line-up of speakers. (Thanks to Sacha for the pointer.)

Margreet Groenenboom, project researcher at the Institute for Information Law, University of Amsterdam, has reviewed our September 2004 EUCD paper in the recent edition of the INDICARE Monitor. Margreet has done a great job, and I appreciate her comments on the paper. I have two quick thoughts:

1) Obviously, there’s much to say (and much more than we did in the paper) about the private copying exceptions vis-�-vis technological protection measures in general and against the backdrop of recent legislative as well as judicial developments in particular. The observation offered in the paper, in essence, was that “old” EU member states have not made broad use of the possibility to take measures ensuring that the private copying exception will survive technological protection measures. Reading this section, Groenenboom argues: “Against this opinion, one could argue that although there may not exist a right that consumers can enforce as consumer in court, this does not mean that the private copying exception ceases to exist.” I’m not sure what this dissent suggests. Does it mean that our observation was not correct, i.e., that we’re wrong by concluding that incumbent member states have not made broad use of the possibility to ensure that private copying exceptions “trump” TPM? Or does it suggest (and this is my reading) that “rights” may exist even if “rights” are not enforceable in courts? If the latter is the case, I agree to the extent that such exceptions (whether to be qualified as rights, privileges, or something else) continue to exist on the books. But: First, it is our argument that legislators have been rather reluctant to apply these exceptions to digital content protected by TPM. Second, and viewed from a broader angle, even if such exceptions may in theory apply to such content, it is a lengthy (and not fruitful, as I find) discussion of what the nature and value of exceptions are if they were not enforceable in courts. From a user’s perspective, the answer seems clear to me.

2) Margreet correctly points out that we haven’t provided a detailed explanation of the selection criteria for the countries we analyzed. The selection certainly didn’t follow a systematic set of criteria. Rather — as noted in the paper and mentioned in the review — we simply wanted to present a representative selection of interesting implementation models and approaches taken by EU member states. Viewed from that angle, each section in part III can be read, in methodological terms, as an exploratory case study (as a practical matter, we first reviewed all the available implementations and then discussed what we found interesting, i.e. where we identified divergence and/or convergence.)
I also agree with Margreet that it would be helpful to have “an overall schedule of which countries use a narrow approach, and which countries use a broad approach, or to make any profound aggregation at all.” In that sense, we’re very much looking forward to such a comprehensive analysis by our European colleagues. In my opinion, such a comprehensive study can only be conducted in a collaborative effort (ALAI-kind survey) – also (but not only) due to language barriers and lack of general/easy-to-access availability of most recent pieces of legislation in several EU member states.

Again, thanks to Margreet Groenenboom for a thoughtful review.

On a different score: Comments on new implementations are much appreciated. Please email me that we can update this site.

The Berkman Center’s Digital Media Project team has released one new and one updated report on the current state of the digital media ecosystem. One report is an update of the 2003 foundational White Paper by the Berkman Center and GartnerG2 on Copyright Law in a Post-Napster World. The updated edition includes the following:

• Updated business model section that includes new survey data and an overview of “legitimate” P2P stores like Wippit and Weed (Chapter 2)
• Updated and expanded analysis of legal cases and decisions relevant in the digital media space, including a brief discussion of Grokster and RIAA v. Verizon (Chapter 3)
• Revised subsection on international enforcement issues like jurisdictional questions among nations (Chapter 3)
• Updated section on regulatory developments like provisions related to the broadcast flag and digital radio, as well as proposed laws in the U.S. such as the INDUCE Act (Chapter 4)
• Expanded chapter on DRM systems including new standards, challenges, and policy issues related to the use of DRM (Chapter 5)
• Updated outlook for the future (Chapter 6)

In addition, we’ve written an International Supplement to the White Paper, which examines the transition from analog/offline to digital/online media from an international legal perspective. Here’s the abstract/overview of the Supplement:

Comments, as always, are most welcome.