A Copyfighter’s Musings

Following my post, Professor Felten offered two responses to the Cato P2P and DRM paper.  In the latter, he harps on a point I have refused to shut up about – the DMCA and DRM combine to stifle legitimate competition and technological innovation by limiting interoperability.  With this in mind, why don’t the Cato authors point to the DMCA as government intrusion into the market?  Again, what does it mean to support the functioning of the free market? 

Another way of seeing why these amiguious views about DRM are important:

There is a misconception that those who worry about DRM’s inhibiting legitimate uses also demand that the government limit the use of DRM.  In a post from a few months ago (referenced in this post discussing the Cato paper), Adam Thierer asserts that Cory Doctorow, Fred von Lohmann, and Mike Godwin want “DRM and [Trusted Computing] … to be limited by force of law.”  Mike objects in a comment, and I suppose Cory and FvL might similarly reply.  For my part, DRM’s downsides do not demand technological mandates, but rather DMCA reform.

The Copyright Act grants copyright holders certain limited exclusive rights.  The public retains certain rights not granted, like private performance, along with rights under fair use.  But for the DMCA, consumers would still be allowed to exercise the rights that the Copyright Act leaves to them, despite the barriers of DRM.  The DMCA upsets this carefully struck balance, allowing copyright holders to extend their rights and control otherwise legitimate consumer uses. 

Why not ban certain DRM implementations then? After all, even without the DMCA, DRM would have social costs in impeding legitimate uses, for some consumers would not be able to acquire tools to circumvent DRM.  However, we should still allow DRM to be used in ways that protect copyright holders’ rights.  Like Thierer, I worry that attempting to ban DRM that limits consumer rights may rub up against use of DRM aimed at protecting copyright holders’ rights.  This would be an unfortunate result.

It seems Thierer agrees with this position – the gap between himself and his three token DRM skeptics appears imaginary. In his post, Thierer states: “I currently rip and copy some of the DVDs I own just to eliminate the incredibly annoying opening menus and previews that some firms force you to watch before you get to the movie. (Yes, yes… I know I’m a DMCA violator for doing that, so go run to Johnny Ashcroft and report me! I’ll be happy to litigate a fair use case on this right up to the Supreme Court!)”  I’m glad Adam is so willing to litigate this most likely unwinnable case. Wouldn’t it be better if the DMCA allowed this use?

Thierer further states:  “My first rule for all copyright law and analysis is this: Congress should not ban or mandate specific technologies or technological outcomes in the name of protecting IP or fair use.”  I am in accord here as well and view the DMCA as problematic precisely becuase it bans certain technologies regardless of their legitimate uses.

Perhaps I misconceive Thierer’s view, and he is more in line with his fellow Technology Liberation Front blogger Braden Cox.  He argues in a blog post and a related article that DRM, and, more broadly, contracts should be allowed to extend copyright holders’ rights beyond what the Copyright Act has granted them.  He seems to making an argument much like Tom Bell’s in this article (which I repeatedly cite to even though it was written in 1998).  Given the conception that fair use is not meant to protect public interests but instead is meant to deal with market failures, DRM seems to resolve the problem.  DRM can now be used to charge for these fair uses.  Thus, there is no need to consider certain uses fair, and, via DRM, copyright holders’ rights should be allowed to extend into many domains in which they previously did not.

There are reasons to not buy into this view of copyright, some of which I’ve written (and read) about elsewhere.  I do not want to wade into that debate here. Instead, I want to point out that even this position is not necessarily comfortable with the DMCA as it stands now.  It would seem that those who view copyright and DRM this way would applaud the DMCA because it helps resolve the market failure problem.  Without enforcement under the DMCA, circumvention tools might proliferate, and thus DRM’s potential benefits in allowing copyright holders’ to extend their rights would be substantially reduced.

But consider the following graf from Cox’s article: “A policy goal of self-help applies well to the peer-to-peer (P2P) file sharing debate. It encourages intellectual property owners to use technology protections and contract. It reduces the need for new laws that would place liability on Internet service providers or file sharing networks. Enforcement efforts aimed toward primary infringement—instead of holding a person or network liable for the actions of another—lessens the potential for chilling effects on new technology development.”

Cox is discussing the dangers of extending secondary liability, and the DMCA is, in part, precisely such an extension.  Indeed, Cox seems to have the same worry that Thierer expresses about bans on technology.  The trafficking clauses (1201(a)(2) and 1201(b)) deal with not the primary infringer (nor the infringer who circumvents to do so).  They outright ban distribution of technologies that have both legitimate and illegitimate uses. 

What’s more, why shouldn’t we still allow the act of circumvention so long as the use of the copyrighted work is lawful?  Even Cox agrees that fair use should protect some uses involving criticism and news reporting and asserts that “Copyright law will ensure that fair use, as applied by the courts, exists.”  Thus, he seems in favor of allowing circumvention for legitimate purposes, too.

Thierer’s piece from August ends in the same ambiguous way that the Cato DRM and P2P piece does.  He doesn’t “want government to tilt the balance one direction or the other.”  But he fails to affirmatively say what he thinks of how the balance has already been set by the DMCA.  Does that constitute a tilting or not?

I bring this all up in part because of the misconception I started with.  For one, to the extent people like Thierer actually agree with the likes of Cory, FvL, and Godwin, I’d like the perceived barrier to be broken down. 

Furthermore, the ambiguities in these Cato pieces obscures the fact that they actually DO implicate potential government actions. Both Thierer and the new Cato piece make it a point to say that they neither agree with content holders on DRM nor with consumer advocates – they have some third way called the “free market” that is opposed to government intervention.  But both the content holders and consumer advocates claim that same free market argument for and against the DMCA.  So where do Thierer and the other Cato authors stand?  Why is the DMCA pro- or anti-market?  Their policy position is never really revealed.

Professor Felten notes this problem in discussing the Cato P2P and DRM piece: “This flaw — extolling the virtues of competition, but failing to follow up by recommending pro-competition policies — seems to run throughout the otherwise excellent Cato paper. It makes sense to rely on market competition to blunt the potential downside of DRM. That strategy will only work if we adopt pro-competition policies, or at least reverse the anti-competition aspects of our current policy. Talking about competition is good; but having competition is much better.”

[11:15 AM – corrected 2nd graf to say “private performance” is not granted to copyright holders.]

Filed by Derek Slater at 12:01 am under General news
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According to James DeLong, “The Solicitor General of the U.S. has petitioned the Supreme Court for
10 minutes in which to argue on behalf of the content industries, who
would cede the time from their allotment.”

Filed by Derek Slater at 4:23 pm under General news
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Cato recently published Peer-to-Peer Networking and Digital Rights Management: How Market Tools Can Solve Copyright Problems by Michael Einhorn and Bill Roseblatt (link via PaidContent).  Rosenblatt has a nice summary up at DRMWatch.  The key grafs:

More
specifically, the paper posits that DRM and peer-to-peer networking are
complementary technologies — not mutually exclusive ones — that can
be integrated to form potentially attractive new content
services.  It provides some examples of nascent attempts to do
just that.  DRM-based services have been appearing that include
features inspired by P2P, such as MusicMatch’s “share with your friends” feature and the increasing numbers of CD burns
that various services allow.  The paper asserts that it’s not just
the presence of illicit P2P networks that induce content owners to
license their content to more consumer-friendly DRM-based services;
other market forces such as vigorous competition and consumers’
reasonable expectations of content usage also contribute to current
developments.”

The paper as a whole is pretty good, and I agree with several aspects of it.  However, two key pieces are left ambiguous:

1. 
The paper supports allowing DRM implementation to continue and cautions
against government intervention.  However, it does not speak to
the role of the DMCA in protecting DRM.  The paper briefly
cautions against “relaxing access protection,” but it doesn’t say what
this amounts to.

This
has particular bearing on their discussion of DRM’s social costs and
benefits.  It is one thing to point ut how new business models
built on versioning and price discrimination may provide general public
benefits, as the authors do in this paper.  It is quite another to
say that, because DRM facilitates market transactions regarding
non-infringing uses, people should no longer  have the right to
continue exercising the rights which the Copyright Act reserves to
them.  It is quite different still to say that, because DRM may
provide certain social benefits, we ought to protect it with the DMCA.

The
authors actual feelings on these points is not entirely clear to me. I
hope to have more to say on these issues later, but, for now, see this previous post on understanding DRM.

2.  The paper notes that Grokster
provided part of the impetus for new music services, including those
that leverage P2P (e.g., Weedshare, the forthcoming Mashboxx). 
Seemingly, the resulting innovation is a positive result. 
Furthermore, the paper states that new technologies should be allowed
to evolve and that the government should not intervene to stem the tide
of P2P. The authors specifically criticize the INDUCE Act. 
However, the paper seems to say that the Supreme Court should reverse Grokster. 
On pg 12, the authors only discuss possible Court resolutions that
would expand secondary liability.  The authors also state that “In
the absence of an efficient resolution by the Court, Congress may pass
legislation that may interfere with both technological evolution and
free-market processes.”  May?  Does that mean should? 
Indeed, if it’s right for the Court to intervene here, why would it be
wrong for Congress to do so?

Both
these points of ambiguity highlight an important aspect of the current
debate surrounding Grokster: what does it mean to support “market
forces” or the “free market”?  The paper’s conclusion is that
market forces will resolve copyright holders’ concerns and the
government should stay out.  Yet, many would say that the DMCA and
extended secondary liability are unfortunate interventions in the
market.  In Free Culture,
Profesor Lessig treats these measures in protectionist terms, arguing
that “in a free society, with a free market, supported by free
enterprise and free trade, the government’s role is not to support one
way of doing business aginst others. Its role is not to pick winners
and protect them against loss” (127-128).  The Cato authors
similarly say that “Goverment … should not pick winners or discourage
any technology from competing in the new marketplace.”  So what
does it really mean to support market forces? Patrick Ross recognizes
this aspect of the debate in a recent post.

It
seems that part of the distinction in usage of “market forces” comes
from different views of how and why we create a market for copyrighted
goods. Do we create a market through a property right essentially as we
do for physical goods?  If we do, then a well-functioning market
seems to rest on things like the DMCA or broader secondary
liability.  Or does copyright’s purpose allow conception of that
right that is more flexible, that does not demand extension into every
domain?  Market forces may drive copyright holders to adjust to
new technologies may be sufficient – through competition and
innovation, copyright holders may be able to achieve sufficient
compensation, sustaining creativity.  (Note: I am not
arguing about whether copyright is “property” or “policy.”  It’s a
kind of property.  But how far that right ought extend is an open
question.)

Much more to say about the Cato paper and these topics, but that will have to do for now.

[12:23 AM – edited for clarity]

Filed by Derek Slater at 5:03 pm under General news
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Check out Rob Pegoraro’s column
on Napster To Go.  It nicely brings together the various pros and
cons.  I didn’t know that it was only compatible with Win XP –
that seems like a huge issue in itself.

Also, I’ve started noticing some other Janus-enabled services entering the market.  CinemaNow has had some support for a few months.  AudioFeast
calls itself a radio service, but it’s not a streaming service. Rather,
they create particular radio-style programs that you can download and
shift to a portable player.  Given the compatible player list,
this looks like a Janus service too.

Filed by Derek Slater at 2:15 pm under General news
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Perhaps you’ve been following the back-and-forth about “middle ground” originally started by Patrick Ross’ article
lambasting Gigi Sohn and PK and now continuing in various blog posts.  In finding a middle ground, we must
first start by defining it broadly.  To me, the middle ground is
a) providing sufficient (monetary) incentives so
that creative material will be created and distributed for the public’s benefit while b)
minimizing damage to innovation, legitimate consumer rights, and other
public interests. In other words, the classic statement of copyright’s
purpose.  People come out differently on how to properly
balance (a) and (b), and the extent to which (a) should come at
the cost of not achieving (b) or vice versa. 

Perhaps you see defining the middle ground as basically worthless –
who wouldn’t like to achieve both goals?  Saying that we agree on
the goal but not on the methods
doesn’t get anyone much closer to compromises that we can generate practical solutions.

Still, I think there are reasons to start by focusing on this broad,
basic sense of “middle ground.” Many question whether active groups and
individuals in this arena actually do seek this balance. They are
accused of not caring about (a) or (b), of using one to trump the other at all costs. When these labels are
deserved, that in itself points out the importance of trying to come
together on this version of “middle ground.” When the accusations are
undeserved, they distract us from that shared purpose.

Consider what Ross seems to say in his article and blog posts. Supporting Grokster and
opposing stronger secondary liability apparently means supporting
“those who enjoy obtaining unauthorized content for free
from P2P networks.” In this way, those supporters are unconcerned with
achieving (a) and thus excluded from the middle ground. Unless one is
an extremist, one must support a strenghtening of secondary liability.

That description is unfair and misleading.  I believe that reversing Grokster will
not effectively achieve (a) and the costs in terms of (b) are
enormous, but I still care about finding a solution that properly achieves (a) and (b).  As Gigi explained in a News.com editorial,
so does she.  If that makes me a crazy extremist, so be it, but I
don’t think it does – I suppose Gigi would say much the same.

Filed by Derek Slater at 8:00 pm under General news
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Though I’ve expressed my lack of concern for the KaZaA trial before, this (via Slashdot)
is still a pretty interesting development. Beyond the important disclosures regarding control over the FastTrack network, the
relationship between Sharman and Brilliant Digital Entertainment seems
considerably closer than previously admitted.  Sharman CEO Nikki Hemming has referred to BDE as merely a “third party,” but that seems highly dubious now.

Filed by Derek Slater at 9:33 am under General news
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Staci Kramer has a bunch of good links over at PaidContent.  I don’t think it’ll be a total flop, but my own perspective is most similar to Ashlee Vance’s. 
Counter to the Napster advertising line, the math doesn’t work out for
me. I don’t think I spend $180 on music per year.  I like the idea
of being able to explore Napster’s million track catalog, but there are
plenty of other ways I can discover new music for free (e.g., Internet
radio).  What’s more, Napster’s catalog lacks several relatively
recent albums, so I suspect I’d have to keep buying some albums on the
side anyway. And did I mention the DRM?  I don’t have a problem
with renting music, but I still want to be able to use my rented music
in legitimate ways.  Player compatibility is just one issue – what
if I want to make a continuous music mix for a party?

Looking at the online music market as a whole, subscription services probably will be the way to go in the future, but
I think it’s going to take some experimentation before
they become broadly adopted.  Competition and variation across price points, catalog depth, and DRM will be key.

Filed by Derek Slater at 10:58 am under General news
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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.

Filed by Derek Slater at 12:09 pm under Big Ideas
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Didn’t realize they were all coming in now. Anyway, have a look.

Esp. of note: the MPAA/RIAA and songwriter/music publisher briefs.

Filed by Derek Slater at 10:57 am under General news
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See here.  Summary:

“Consumers have two strong interests: (1) Avoiding inhibitions on technological progress; and (2) Fostering the production of content by providing incentives to creators…. The Ninth Circuit focused totally on the need to avoid any inhibition on technology, and in so doing it lost sight of the equally important consumer interest in promoting content….

Also, the Ninth Circuit was mistaken in its application of the “capable of substantial non-infringing uses” language from Sony. No one in this case argues that P2P as a technology should be banned. The issue, rather, is the business practices which the filesharing companies are wrapping around this technology. These can and should be the subject of judicial inquiry, and condemned when they create business models that can fairly be classified as deliberately dependent on infringement.

Finally, this Court has been urged to defer to Congress. This is bad advice, because it assumes that Sony was rightly applied below. Also, the present situation needs cautious, common law approaches, not sweeping efforts to solve poorly-understood problems at one hack. Congress will benefit greatly if this Court gives it some breathing space.”

Filed by Derek Slater at 4:41 pm under General news
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See here.  Here’s the summary of the argument:

“It is critical to preserve the Sony defense, which allows technology vendors to innovate without fear of liability imposed simply because their socially valuable technologies are misused by third parties to infringe copyright. This Court should emphatically reject the Seventh Circuit’s attempt to engraft a nebulous balancing test onto the venerable Sony defense, and it should also make clear that courts ought not to inquire into whether a technology might have been designed differently to reduce or eliminate infringement. No such radical surgery is necessary because, when properly understood, the Sony defense offers no shelter to rogue companies for conduct that actively encourages their users to infringe.”

Note that “active encouragement” is not intended as a new standard (see footnote 4).  However, if you followed the proposed alternatives to INDUCE closely, you’ll recognize the proposed reading of Sony.  On a very quick skim, my first thought is: how is this active encouragement standard not open to abuse like the control/alternative design/balancing test standards the brief rejects?  In the danger a difference in kind or degree?  “Active encouragement” does characterize only a limited range of activities, and the brief specifically urges to not allow inferences from particular designs or business model:

“Although the district court’s failure to examine the record for evidence of active encouragement justifies a remand in this case, the Court should nevertheless make clear that the range of potential guilty conduct is quite limited. First, active encouragement does not exist merely because a technology vendor profits indirectly from infringing use – any business plan based on advertising will profit in proportion to the number of users a technology has, but that fact alone does not demonstrate active encouragement of illegal activity. Second, the presence of encouragement is a question of overt acts, and the purpose for which a technology may have been designed plays no part in that inquiry…. Third, the fact that a vendor maintains an ongoing relationship with its customers does not, without more, demonstrate encouragement. Fourth, no acts relating to the design, manufacture, distribution, or operation (by the vendor or distributor) of a technology that is capable of substantial noninfringing uses could constitute impermissible encouragement. Finally, the question whether an act constitutes active encouragement turns on traditional principles of contributory liability.”

In this way,  the standard they propose is overall rather technology-protective.  Also, there’s a lot of great stuff in here about why moving away from a bright-line, substantial non-infringing uses rule would be problematic. And they rightly criticize Aimster – choice line: the 7th Circuit “abandon[ed] the Sony rule in everything but name.”  Indeed, the brief goes even further and criticizes Napster‘s focus on control.

Again, that’s just from a quick skim – I may have more to say on this and the VSDA brief later. And the other briefs, I suppose.  Watch here for the briefs, or use Joe’s RSS feed here (via Copyfight).  And is that Pam Samuelson blogging about the case?  Much to read and write!

Filed by Derek Slater at 4:32 pm under General news
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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.

Filed by Derek Slater at 10:49 am under Big Ideas
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Oral arguments will be held March 29.

Who’s planning to come out for it? I’m scheming travel arrangements, though I would imagine it will be even trickier to get into this than to Eldred – only 25 people from the general public were allowed in then.  Who’s going to camp out?

Filed by Derek Slater at 4:01 pm under General news
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Today, the Berkman Center and Gartner|G2 released an update to Copyright and Digital Media in a Post-Napster World, which “examines the transition from analog/offline to digital/online media from a U.S. legal and market perspective.”  This edition reflects important changes since the whitepaper’s original publication in August 2003.  The new edition also includes an international supplement that “considers developments regarding copyright and related rights in Europe and Asia/Pacific (including Australia) against the backdrop of earlier studies by the Berkman Center’s Digital Media Project that reviewed the interplay of law, technology, and the business ecosystem.”

Filed by Derek Slater at 7:35 pm under General news
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News of Senator Murray’s California INDUCE-like bill is making the rounds.  Murray says that the MPAA/RIAA/et al had nothing to do with it.  Uh huh.

It seems like the RIAA/MPAA/whichever organization is behind this is throwing a million darts, hoping just one sticks.  Congress, Supreme Court, the states – doesn’t matter which one steps in as long as they get their P2P liability standard enacted somewhere.  At the same time, this bill seems so broadly drafted, so obviously bad that they can’t seriously think it will pass.  Maybe this is just the baseline, but, given what happened with INDUCE, do they really want to start that debate again in the state of Silicon Valley?  If they don’t take the bill’s chances seriously, is this just a way of wasting other organizations’ resources?  Lessig suggested that INDUCE was intended as a distraction, to move through the IP Protection Act.

Also, re: Professor Felten’s question about “reasonable person” standards, see Professor Solum’s legal theory lexicon post for a clear, simple discussion.

Filed by Derek Slater at 11:48 am under General news
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