A Copyfighter’s Musings

So, EMI is suing Bertelsmann for funding Napster. Hurray. I was looking over the contributory and vicarious infringement suit against Hummer Winblad.  I’m not sure if the Bertelsmann suit is only one type of infringement – I’m not sure why it would be.  It seems like its going to be vicarious infringement since it has to do primarily with deriving a financial benefit. But, if you need the right and ability to control part to cement that infringement claim, you might as well go after a material contribution claim.

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I told you that KaZaA helps amateur movie makers.

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Check it out.

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Sorry, bit of work coming up. Go to Furdlog, where all the goodies are (is it just me, or does Frank manage to find EVERYTHING?).  Will have more here tomorrow.

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Once again, Kevin Marks has done us the favor of putting a paper into QuickTopic for commenting.  This time, it’s the Lon Sobel “ISP as Digital Retailer” paper

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Check it out.

I’m excited that this Project is finally official – many Berkmanites, along with the fine folks at Gartner, have been working hard on it for quite some time.  The foundational paper is looking great, and there’s plenty more to come.  Stay tuned.

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Go there, please.  I can’t wait to read everyone’s notes and all the papers.  So much to read, and the Spectrum conference hasn’t even started yet!

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At the Berkeley DRM conference, Lon Sobel presented this proposed alteration of copyright to make the ISP a “digital retailer.”  Well, it’s not really an alteration of copyright. It’s a business model with a very weak statute attached to it.  Here’s the legislative part of it:

“Copyright owners would be obligated, by statute, to permit the copying and redistribution of their works…. [F]or watermarked and fingerprinted works, ISPs would be obligated, by statute, to pay the royalty charged by each work’s copyright owner. This proposal amounts to a statutory license (because it authorizes copying and redistribution of copyrighted works, without negotiated licenses from copyright owners). But it’s a two-edged statutory license: it authorizes the use of copyrighted works, but also requires ISPs to pay royalties at whatever rates are set by copyright owners.”

So, what’s going to make the copyright holders license their works?  Sobel indicates at the end of the proposal that he doesn’t mind that copyright holders will have no impetus to license their works.

Nor does he give a lot of firm numbers on how much each download would likely cost; I’d like to see some sort of projections.

Dan Gillmor has significantly more scathing remarks here (that post has all of his Berkeley DRM conference notes). He points out that having ISPs track what we read/hear/watch is more than just a small invasion of privacy.  Also, he notes: “Given that in a broadband world there will be just a couple of ISPs — namely the cable and phone companies, given the way the government is giving them absolute rights to control content on their pipes — do you suppose your friendly cable and phone monopoly will not choose to charge you substantial extra money?”  What occurs to me after reading that is, what about wireless?  What happens if I’m sharing someone’s connection? (Note: as someone has mentioned, this is also a problem with Professor Fisher’s plan, although he states that tax revenue could come from places other than ISPs if necessary.)

I would also like to point out that Sobel makes some incorrect assessments of Fisher’s plan as far as I understand it.  He writes, “[Fisher’s] “Tax and Royalty System” does not seem to contemplate the creation of new versions; it would simply authorize copying and redistribution. This means the “Tax and Royalty System” protects copyrights somewhat more than the [Netanel’s] “Noncommercial Use Levy,” because the “Tax and Royalty System” leaves more control in the hands of copyright owners, namely, the right to license the creation of new versions of their works, on terms agreed to in private negotiations.”

That is bogus – Fisher says that we would ditch copyright after the implementation of his plan. You can make all the derivative works you want.

Other stuff that’s been interesting:

Dan Gillmor notes IBM’s Bob Blakley discussing some of the negatives for producers’ using DRM. Gillmor scribes: “DRM can raise inventory costs, he says. Example: controls by country. Mass customization isn’t perfect, either, he says. Raises costs and can actually encourage piracy. It can add life-cycle costs when things fail, because users will call” (Gillmor’s notes, not necessarily Blakley’s words).

I’ve always heard about how price discrimination via DRM will be so great for producers and how private ordering isn’t as great as we might think (at least, that’s what I think this article from Yochai Benkler is saying).  I’ve never heard about using DRM to price discriminate could be bad for producers.

Also note the interesting conversation by someone from Microsoft, Dave Farber, and Lucky Green about trusted computing. Those three really do represent the spectrum.

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A few days ago, I referred to the work of economists Michelle Boldrin and David K. Levine.  They run the “The Intellectual Property” page, which is a really cool site that applies economics and game theory to intellectual property to explain why we don’t really need “intellectual monopoly.”   In their forthcoming book, they write:

“[W]hen we are discussing the elimination of intellectual monopoly, we mean the elimination of patent and copyright except for the right of sale. We also mean that the government would not enforce downstream licensing agreements. That is, shrink-wrap, or other agreements about how intellectual property is to be used could not be enforced in the courts.”

 

Check out the first chapter and the second.

(via Larry Solum’s Legal Theory blog.  Larry is one of the greatest people I’ve ever interviewed, and he wrote a great piece about Eldred.)

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[Updated: 6:11 PM & 2-19-03 10:45 AM]

I’ve been meaning to take a look at mediAgora.com for awhile.  I’ve finally had a chance to peruse the site, and here are some first thoughts.

1.  The great part about this proposal is, not only does it “[work] with the new realities of digital media,” it works within the present reality of copyright.  It doesn’t revolutionize the system.  Creators already set the license terms for derivative works, and there is no compulsory license in the digital realm outside of the CARP rates for non-interactive streaming.

2.  The Promoter role is sensible and should serve as a helpful deterrent for media pirates.  It provides an incentive to, as Kevin says, work within the system.

3.   Kevin talks about sharing music as a promoter as being something done between friends.  In actuality, file trading is done between complete strangers.  It could take other shapes, particularly if there were media companies provided more legal avenues to download digital media.  But, it’s likely that a lot of the trading will still remain in a P2P, stranger-to-stranger medium. 

If that’s the case, why won’t this end up like Altnet?  If you get on KaZaA you can get legal content through Altnet, but no one really does.  Why?  Because all of the legal content, pay-for-use content appears right next to the illegal, free content.  As Scott Hunter described it in an email mesage to me, this is akin to “putting one buoy in a lake filled with them, easy to swim around.”

Sure, the promotion fee will make some people work within the system.  But, will it make enough people do so?

4.  If the music and movie companies aren’t licensing their content online right now, why would they do it under this system?  I know, there’s Listen.com and such – but, really, we’ve got MusicNet, PressPlay, and Movielink.  That’s about it.  What’s going to change that under mediAgora?

5.  Perhaps it’s a matter of time until the media companies realize that something like mediAgora makes sense.  They’ll realize their business models need to change.

Or, maybe not – maybe the system needs more of a legislative shove in the right direction.

Later:

6.  And what’s to stop media creators from using DRM to limit legitimate private/fair uses other than copying?  How will we embed in the system an incentive to not do that?  Is the fact that limiting private/fair uses makes a product less valuable to the consumer enough to prevent such controls from being employed?

Also, Kevin has responded here.

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