“‘Collective Licensing or Media Levy’ Is a Euphemism For Turning Creativity Into A Socialist Gulag”

So says Jim DeLong.

Someone better tell the artists represented by collective rights
organizations ASCAP, BMI, and SESAC.  Do they have any idea how they’re being oppressed?

Artists must rise up and stop Marybeth Peters, whose proposed reform “effectively substitutes
a collective licensing structure for the existing Section 115 compulsory

Perhaps Delong was only referring to compulsory licenses or
“Alternative Compensation Systems.”  I guess I missed the part in
Professor Fisher’s book where people are worked to death in prison camps.

Come on, guys – do we really want to throw around terms like gulag?  Haven’t we just been over this?

In a related situation, Glenn Otis Brown pointedly framed what’s distasteful about casually using such loaded terms:

“I get sad when people cheapen words like ‘communist’ or ‘fascist’ by
throwing them around recklessly, especially given what those words
meant in the not-so-distant past,” Brown wrote. “My father was a CIA
Cold Warrior for 35 years of his life; he wasn’t fighting against GPL’d
software. Stalinist purges, the Berlin Wall, tanks in Budapest —
that’s communism.”

From Mixtape to Playlist

Today, the long tail is all the rage, and for good reason.  If you have not been reading Chris Anderson’s blog, I highly recommend you get caught up (about 70,000 words worth of catching up). 

The implications for the content industries, including music, are
profound.  No longer are people limited to what’s on the shelves
of their local Walmart, nor need they rely heavily on TV and radio to
become exposed to the newest works.  iTunes has practically
infinite capacity and the costs of distribution are slim. 
Consumers have an increasingly diverse array of tools to acquire and
become exposed to music.  Niche artists may be more able to reach
their niche audiences. Distributors may be able to aggregate those
audiences into a sizable revenue stream.  Consumers may be able to
better satisfy their tastes and enjoy a greater diversity of music than
ever before.

As Chris Anderson explains, the falling costs of storage and
distribution along with the wide variety of available music by
themselves are not enough to drive people down the tail.  Rather,
consumers need better systems for separating the signal from the noise.  Myriad recommendation systems are already emerging to do just that.

I’ve become rather excited by and begun to study a subset of these
new recommendation tools.  Through various tools and services –
including playlists, mp3 blogs, podcasts, webcasts, social networking, and small group networksamong others
– consumers are able to publish and share their own tastes with each
other.  In some cases, that means just sharing a themed list of
music; in others it means sharing a link to actual content; sometimes
it involves sharing content itself.  Beyond separating signal from
noise, these tools have other potential cultural upshots that are
worthy of particular attention.

First, these tools encourage consumer creativity. We often talk
about the wonders of remix culture, but plain old mix culture is
creative too.  Sharing tastes can be an act of self-expression. We
have probably all experienced this in the context of making mixtapes from
friends. As Rebecca Tushnet explains,
“Making a mix CD is participatory and requires judgments about value
and meaning, even if they are humble. It may express thoughts and
emotions that the CD maker feels could be fully expressed no other
way.” So too can the creation of a playlist be a creative act. 
Users can also add content of their own, for instance by adding
commentary in a blog entry or becoming the host of their own podcasted
music show.

In this way, the tools may contribute to “semiotic democracy.” 
Rather than just passively receiving music, consumers can actively
engage it, altering and adding meanings and impressions of the musical
works.  When consumers stand beside (or replace) the traditional
tastemakers, they also may diminish the control with which those
traditional tastemakers had on how we engaged music.  Consumers
can shape the prism through which they view these works.

Once they find others who have similar or at least interesting
tastes, consumers might also form niche communities on this basis. Some
users may simply tell others “great playlist!”, or they may be engage
in more involved and complex interactions.  We’re seeing a rise
not only of professional-amateur musicians, but pro-am
music critics, pro-am tastemakers.  As they become more involved
in using these tools, they may develop relationships with other
committed individuals.  To the extent the tools can create bonds
between people, the creation of these communities may have beneficial
spill-over effects into the rest of our social life, building social capital.  

Of course, one cannot ignore the rather large consumer-to-consumer
sharing elephant in the corner: P2P file-sharing.  Many have
boasted of the community-building aspects of P2P and the independent
value of the sharing that goes on there.  But those aspects
shouldn’t be exaggerated – I would be surprised if most of what happens
on P2P is more than simply dumping music into a shared folder and then
searching and downloading what one seeks.  Perhaps I am wrong. In
any case, if I am right, part of the reason P2P never evolved into a
richer experience is because we sterilized it.

My hope is that these burgeoning taste-sharing tools can help
restart a conversation about how technology can unleash a richer
musical culture. We should be celebrating what technology can do for
music.  Who could object to consumers enjoying music more,
enjoying a greater diversity of music, being more creative, engaging
music more deeply, and coming together with each other because of
music?  That’s the positive vision I’d like to explore in relation
to these tools.

Of course, the potential benefits discussed above are rather
abstract and hypothetical.  To start at a very basic level: Who
knows if people are actually interested in using these tools, as
opposed to other types of recommendation systems?  Or whether
they’re interested in interacting with each other through them? 
And many other questions.

I hope to, over time, build out those hypotheses a bit more and, to
the extent I can, gather some data to see what current usage of these
tools is like.  The data won’t be perfect, but it may be
something.  I’m intrigued to know what’s out there.

More on File-Sharing and the Commoners’ Common Platform

Seth wrote a solid post responding to my discussion of file-sharing and forming a commoners’ common platform.

I think Seth is right that it’s unnecessary and ineffective to try to
ensure “moderation in everyone in the cause.”  I don’t expect DHB
or other similarly-thinking groups to change their stances. 
However, to the extent we jointly try to define “what’s at stake in the
fight for digital rights” and synthesize into a common cause, that
platform should be built on shared values.  Maybe it’s impossible
to do that, as Seth suggests, but if we’re going to try, it’s important
to outline what those shared values are (or aren’t).

But allow me to cut away from that objective, for, in the
midst of my discussing the shared platform, perhaps the following point
did not come across clearly enough. DHB’s going to have their own
particular stances, other activist groups and copyfighters will have
their own, too.  So, irrespective of shared platforms, what stance should they take on widespread
infringing P2P file-sharing? As I argued, I think it should be, with
some nuance, that they do not support it.  That shouldn’t be said
to pick a fight with or denounce anyone, but rather because it’s the
right position. I think that the position must be made clear enough to
not get associated with the opposite position. Encouraging and excusing
widespread infringing file-sharing is not only an untenable position,
but also greatly harmful to advancing other positions in the

Again, I don’t expect everyone will take this position.  However, I think it would be better if more did.

More on Artists and P2P

Patrick Ross posted a follow-up to my post below. 
I think, in some sense, Patrick is absolutely right – this case is not
about P2P. It is ultimately about the secondary liability standards by
which we will judge all technologies.  It is about the
far-reaching consequences of the so-called “bad actor” or, perhaps more
accurately, bad-business-model standard that Ross advocates, as well as
the many other offered alternatives to Sony.  To many
artists who see the Internet and digital technologies as opening up
myriad beneficial distribution channels, the threat such standards
pose is grave. Counter to Ross’ claim, artists will indeed “lose
… valuable distribution outlet[s].”

As I suggested below,
this point holds even if you think P2P will still exist if respondents
are held liable.  On that point, I’m not sure either – in
particular, I highly doubt that decentralized P2P will be allowed to
exist under the forced redesign standards suggested by numerous
parties.  As suggested in the petitioners’ amici, filters will
require at least some form of centralization.

Regarding Ross’ proposed standard, I highly recommend reading Intel’s argument (18-19) against the SG’s standard. 
As an aside: it’s also worth noting that, given how Ross sets up the
standard, it will not reduce piracy in the least, as any amateur,
non-commercial P2P distributor will be allowed to exist. Of course,
Ross proposal could still, as a legal matter, be a principled
view of what the standard should be, but it’s worth realizing that it
will probably not produce the beneficial policy consequences that
those who push for reversal are hoping for.  In this way, too,
this case has little to do with P2P – P2P and the infringements it enables will likely keep rolling along just fine.

CC Fine Art of Sampling Contest Winners Announced

And they’re really freaking good.  I esp. like “out of my way”.

PaidContent and Billboard’s New Music Blog

You might want to check out PaidContent‘s new venture with Billboard, Billboard Postplay.  PaidContent’s digital music biz coverage has been excellent in the past, and Rafat Ali is now joined by Todd Beals, who publishes a great digital media newsletter.  They’ve launched the new blog with coverage of this year’s Digital Music Forum, including audio from Wired Editor-in-Chief Chris Anderon’s interview with Shawn Fanning. 

Grokster and a More Regulable Net

Do read Professor Felten’s analysis of the solicitor general’s brief and the various anti-porn coalitions’ and police organizations’ brief.  As he suggests, this case is not simply about controlling P2P narrowly, but about regulating the Internet itself.  Susan Crawford has also been hammering away at this point.

VSDA / John Mitchell Grokster Brief

John Mitchell sends word that the VSDA has filed the first brief on the merits in Grokster. Haven’t had a chance to read it yet, but that shouldn’t stop you:

“The first brief on the merits before the Supreme Court in MGM Studios v. Grokster was filed Friday, January 21, by the Video Software Dealers Association. The brief suggests that while p2p systems may be used for infringing and noninfringing uses, courts should consider whether technologies may be used to reduce infringing uses without over-burdening the system provider, the freedom of speech for non-infringing uses (including by copyright owners who want p2p systems to be used to reach their audiences) or the freedom of competition (including first sale doctrine principles) of retailers and all intermediate software and services that make downloading possible. Bringing a retailer perspective, it strikes a balance of respect for copyright and respect for the limits the law places on those copyrights. The brief is available (in PDF) at http://interactionlaw.com/id5.html and at http://www.vsda.org/Resource.phx/vsda/government/positionstatements/grokster.htx

Update: I’ve now given it a read, and, aside from attention to the distribution right, first sale, anti-trust, and First Amendment considerations, (all well-done and typical of Mitchell), I disagree with a whole lot of it. Here’s the concluding paragraph, which summarizes their argument: 

“Because the courts below failed to inquire into any available remedies, they also failed to properly balance the relevant harms, leaving no room to consider the reasonableness of imposing a duty to help prevent infringement. The Ninth Circuit’s ruling should be reversed, and the case remanded for consideration of whether, without unduly burdening the First Amendment rights of authors who wish to do so to make their works available for reproduction by others using peer-to-peer systems, without unduly burdening the audience for – or intermediaries of – such authors, without enlarging the scope of Petitioners’ copyrights such that they may be leveraged into control over methods for the reproduction of works into copies and phonorecords, the distribution of lawfully made copies or phonorecords, the rendering of private performances of works, or the competing systems for compression, management,transmission, and copyright protection for those works, it may require Respondents to institute measures designed to limit the use of their software services for infringing purposes.” 

Earlier, the brief argues that: “[T]he Betamax recorder’s core function was to make reproductions, and it would have been impossible to enjoin the manufacture and sale of a Betamax recorder used for infringing reproductions without also enjoining the manufacture and sale of Betamax recorders used for noninfringing reproductions. This distinction goes to the core question of whether the burden of enjoining the infringing reproduction comes at too high a cost because, to be effective, the injunction would necessarily have too broad a reach.” And later: “Sony had no occasion to consider this question [of redesigning the technology to limit infringing uses] because ‘a finding of contributory infringement would inevitably frustrate’ the desire of approving broadcasters to expand their audiences through time-shifting. 464 U.S. at 446 (emphasis added). There was simply no means of enjoining sales of the Betamax recorder to protect the copyrights of the complaining copyright owners without also suppressing the freedom of expression of copyright owners who desired wider audiences gained through timeshifting.”

Distinguishing Sony because it only dealt with enjoining the technology altogether seems wrong to me.  In terms of interpreting Sony, I think the Court resolved how we should treat redesigns, as I discussed here. From a normative perspective, I think Sony was right to not assess potential redesigns and simply use the substantial non-infringing uses rule, as I discussed here

To quote from the Streamcast brief below:

“Plaintiffs assert that the Sony-Betamax doctrine does not apply where a technology can be redesigned to eliminate infringing uses while preserving noninfringing uses. This very argument was flatly rejected in the Sony-Betamax case itself, where the movie studio plaintiffs (whose corporate descendants are Plaintiffs in this action) suggested that the infringing uses of the Betamax could be easily addressed by either 1) removal of the tuner or 2) incorporation of a “jamming system” that would require VCRs to respond to “no copy” markers embedded into television signals. See Universal, 480 F. Supp. at 462. Plaintiffs’ conception gets the analysis precisely backward—the Supreme Court’s opinion in Sony-Betamax makes it clear that, so long as a technology is capable of substantial noninfringing uses, its vendor is not liable under contributory infringement principles and thus has no obligation redesign the product to the copyright owners specification.”

Joe Hall discusses why, even if a court were to consider potential redesigns, a redesign may be difficult.

MPAA Sues P2P Indexers

Along with their lawsuits against individual infringers, it seems the MPAA is now going to go after BitTorrent trackers and eDonkey server providers.  According to this report (via Copyfight), they play the same role as Napster’s indexing servers.  Professor Felten predicted this months ago.

Importance of Law and IT: Knock-off Printer Cartridges

Ernest’s new show on Lexmark is up.  It was my pleasure to join in the fun, along with the most insightful Jason Schultz and Joe Gratz.

Notable Berkman Blogging

Professor Fisher is over at Lessig’s to discuss his new book.  Check out his first post.

Urs Gasser has been pumping out some full-on essays regarding regulating the Internet and understanding information law.  He also translated Switzerland’s recent DMCA-like copyright law revisions.

Too Telling

Grabbed by Kevin, a quote from a recent article:

“Attorney General John Ashcroft has stated that the Justice Department’s response to the theft of Intellectual Property ‘must be as forceful and aggressive and successful as our response to terrorism and violent crime and drugs and corruption has been.'”

bnetd Loses Huge in DMCA & Contracts Case

This is about as bad as it could get. The court follows Bowers and affirms that copyright holders can override copyright’s limitations via contract. Moreover, the court rejects bnetd’s argument under the reverse engineering exception of the DMCA. (via Felten)

EFF’s got a press release up. The appeal brief will, I would expect, involve reference to Skylink.

Update: Ernest and SethF are on the case.

Check out IPac

Go here to learn about IPac, an intellectual property PAC.  They have three main principles.

  1. Creators of ideas and inventions have the right to be compensated for their work, but not to limit political expression, veto technological innovation, or restrict education and scientific research. [read why]
  2. Intellectual property laws should be judged by their potential to foster new creativity, as required by the U.S. Constitution. [read why]
  3. Intellectual property laws should be clear and explicit, so anybody can create without fear of lawsuits. [read why]

True Name P2P Bill Signed into Law in CA

Frank provides links to news articles as well as the law’s text.  It’s got a couple of new exceptions it seems, but the privacy and anonymity concerns remain.

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