A Copyfighter’s Musings

1.  DRM Watch has published several DRM year-in-review articles.  (via Paidcontent)

2.  The INDICARE Project has published Digital Rights Management and Consumer Acceptability. It “provides an overview of consumer concerns and expectations regarding DRMs, and discusses the findings from a social, legal, technical and business perspective.” (via Urs Gasser)

Filed by Derek Slater at 4:19 pm under General news
Comments Off on New DRM Articles and Papers

Scoble’s got more links regarding the issues below.  As expected, a lot of it is knee jerk “bloggers can’t do this!” mixed with ad hominem attacks.  That’s too bad.  Chris Baus and Russell Beattie raise the issue of what CC’s non-commercial/commercial distinction actually means. It’s not entirely clear to me that Russell’s examples would not be commercial or would somehow be considered fair use.  Indeed, Martin argues the legal issue in his matter is fairly clear.  Cases like Basic Books and MP3.com seem rather on point here.  One of the key issues seems to be what having an RSS feed implies others should be able to do with one’s website. If Martin had no RSS feed and Bloglines was simply scraping the site, it seems people would feel very differently.  But why must RSS make a difference in this case?

Filed by Derek Slater at 11:17 am under General news
2 Comments

Techlawadvisor’s been blogging up a storm, esp. recently.  I don’t link there near enough – do make sure to head over.

Also, Phil Leigh keeps pumping out interesting digital media industry interviews.  You can now download them instead of streaming. You might want to check out the interview with Wired writer Jeff Howe, particularly in light of Ed Felten’s post about Howe’s article “The Shadow Internet.”

Speaking of Ed, really digging the clips blog.

Filed by Derek Slater at 2:44 pm under General news
Comments Off on Links You Need

Read Martin Schwimmer’s post “Why I Have Asked Bloglines To Remove My Sites From Its ‘Service.'”  Then read JP’s earlier posts on RSS and copyright.  Let me throw out some questions, in the service of probing the issue (and not to judge or argue for any particular view).

Which of your intuitions about RSS and copyright stay the same when commercial use is added to the mix? Which change? 

Let’s change the facts a little and see what happens. What if, instead of a server-side aggregator, Bloglines distributed software that aggregated client-side?  Imagine it functions exactly the same, reframing Martin’s page, cutting off his contact information, and targeting advertisements based on its contents.  However, the derivatives are rendered wholly on the client’s machine. Would Martin (or someone similarly situated) have reason to object?  Intuitively? Legally? For the same reasons as Martin proposes in his post, or different ones?

Compare and contrast these two situations with related issues in Basic Books v. Kinkos, Sony v. Universal, UMG Recordings v. MP3.com, and Huntsman v. Soderburgh. Consider the different roles played by intermediaries and users in making infringing and non-infringing uses.  Let’s assume for the moment that if a user were to make a particular derivative work himself it’d be a fair use – are there reasonable arguments that an intermediary should be able to make that fair use on behalf of the user even though the intermediary charges a fee? Does anything change if the intermediary’s action might actually promote markets for the original work? 

(If not obvious: part of my intent in framing the problem this way is to take it out of the blogging context, to see how that changes our intuitions about the issues, if at all.  I can imagine certain responses to Martin along the lines of “he’s a blogger – this just isn’t right” – we should treat that intuition critically).

Update: Denise has some linkage on this subject and points out the implied licensing issue.  Scoble’s comment re: Newsgator mirrors the hypothetical comparison I suggest above. He also writes, “Yes, I’m fully aware of copyright law. But blogging needs a new copyright idea. When you blog you are defacto agreeing to let your content be used in ways that might not agree with strict copyright laws.” In response to someone asking why copyright for blogging should be any different, Scoble argues that “RSS is a Syndication format and the usage model existed before any of you started writing. You saw how it was being used. You decided to participate by adding RSS feeds.”  Dennis Kennedy notes some of the complicated fair use issues and points out how they relate to early cases regarding framing of websites.  RSS and blogging norms seem to complicate the case, at least in some people’s minds.

Update 2: Martin clarifies and expands. Particularly points 4 and 5 are relevant to the above post.

[1/17 – edited second graf; before both questions were about intuitions staying the same]

Filed by Derek Slater at 2:02 pm under General news
2 Comments

Again, sorry for the lack of posts here, but I’m in the midst of finals period.  Will bbiab.

Filed by Derek Slater at 11:38 pm under General news
Comments Off on A Little Quiet

See here. I do agree with Brad’s concluding point that charging the higher price for portability might not be a good way to “compete with ubiquitous, free, portable music in the standard MP3 format.”  At the same time, I don’t think the higher pricing is just underwriting the DRM’s cost.  First, Napster might be paying higher royalty rates to the labels for the portable subscription offering.  Second, either Napster and/or the labels may see this as an opportunity to harness DRM for price discrimination.

Filed by Derek Slater at 1:46 am under General news
1 Comment

Sorry for the slowdown here recently.  Actually, things have been a bit slower here over the last few months in part because of a Berkman Center research paper which I am very happy to report has now been published.  Here’s the link and abstract.  Feedback would be appreciated.

Content and Control: Assessing the Impact of Policy Choices on Potential Online Business Models in the Music and Film Industries

The online environment and new digital technologies threaten the viability of the music and film industries’ traditional business models. The industries have responded by seeking government intervention, among other means, to protect their traditional models as well as by developing new models specifically adapted to the online market. Industry activity and public debate have focused on three key policy areas related to copyright holders’ control of content: technical interference with and potential liability of P2P services; copyright infringers’ civil and criminal liability; and legal reinforcement of digital rights management technologies (DRM).

This paper seeks to support policymakers’ decision making by delineating the potential consequences of policy actions in these areas. To do so, it assesses how such action would impact relevant social values and four business models representative of current and emerging attempts to generate viable revenues from digital media. The authors caution that government intervention is currently premature because it is unlikely to strike an appropriate balance between achieving industry goals while supporting other social values, such as consumer rights, the diversity of available content, and technological innovation.

Filed by Derek Slater at 1:22 am under General news
Comments Off on Content and Control

Mary Hodder posts Mark Pesce’s email discussing fall-out from Suprnova’s demise and the comparison with Napster.

Filed by Derek Slater at 9:21 pm under General news
Comments Off on More Deja Vu

Creative Commons produced and recently released this short film about the launch of the sampling license in Brazil. 

Filed by Derek Slater at 9:06 pm under General news
Comments Off on Creative Commons Brazil Movie

I’ve been thinking about this over the last few days and noticed Zeropaid’s Chris Hedgecock make the same point in this News.com article: Suprnova et al shutting down seems like such a clear parallel with Napster shutting down.  It’ll be important for the movie industry for about five minutes.  eDonkey has a similar system for swarm downloading.  The decentralized Exeem is already in development.  These suits are an interesting and important development, but they’re hardly more than a temporary stopgap.

Filed by Derek Slater at 7:54 pm under General news
4 Comments

What a friggin shock – not.

Filed by Derek Slater at 2:06 pm under General news
Comments Off on Apple Locks Out Real

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.

Filed by Derek Slater at 10:39 pm under Big Ideas
Comments Off on MPAA Sues P2P Indexers

(Cue more thinking out loud, building on a few conversations I’ve had with others🙂 Oral arguments in Grokster will be in March (btw, someone let me know when the actual date is announced – gotta make travel arrangements)  I can’t imagine a decision coming down before the end of the term ~ mid-June.  What do we have to look forward to come summer, after the decision is handed down?

Either way, things will get messy.  Generally speaking, if Grokster wins, we should expect the return of INDUCE, right?  Once and for all, the ball will be in Congress’ court. If Grokster loses: send in the lawyers.  Grokster, check, Morpheus, check.  Finish off KaZaA, then hit eDonkey.  Maybe start hitting up the smaller distributors and networks – your Bearshares and Soulseeks of the P2P universe.  For BitTorrent – who are they going to sue? Bram Cohen?  That should be interesting.  Many months later, expect a Lexmark or Skylink like lawsuit coming from out of nowhere.  Didn’t take long to start seeing unintended consequences of DMCA; don’t expect it to be much different here.

Of course, this description is a bit too black and white.  Whether these parties win or lose at the SC, the specific test applied will be important. A ruling covering certain P2P systems will extend beyond systems like Morpheus and KaZaA alone, but the question is how broadly and how easily will one be able to map the ruling onto similar/analogous contexts.  One can imagine a ruling that nails Grokster and Morpheus, but somehow doesn’t end up covering some other P2P systems.  (In which case, again, we quite obviously only get more chilling effects without doing a damn thing about stopping P2P.)  Indeed, one can imagine a test harsher than Sony but one or both systems manage to pass given the facts.  Maybe they limit it to the auto-update feature, effectively backing out of some of the more substantive questions.  Maybe they go with a negligence like balancing test, with a ruling so fact-specific that it’s not clear how it applies to a non-corporate entity like Cohen.  Maybe the ante is upped on how substantial the non-infringing uses have to be.  Anyway, any chink in the Sony standard would likely generate a new lawsuit against a P2P system operator, to push the ruling as far as it can go.

(BTW, the title of this post is not meant to imply that Sony is dead and Grokster will lose.  Rather, in a short while, we’re likely going to start referring to the Grokster standard for contributory and vicarious copyright infringement, rather than the Sony or Sony-Betamax test.)

Filed by Derek Slater at 3:53 pm under General news
2 Comments

Joshua Meier is right in this regard: if “P2P networks are made illegal” – that is, if we could actually ban all technologies capable of allowing people to transmit files directly to each other over the Internet – there probably would be less infringement.  Glad we settled that.  But let’s explore what actually banning those technologies really entails.

Making “P2P networks … illegal” involves more than flipping a switch and banning P2P networks narrowly.  As Ed Felten explains, crafting a definition that includes P2P and leaves out most other Internet technologies is basically impossible.

A result against Grokster would thus affect myriad other technologies. But would it affect P2P?  Not really. As the Darknet authors conclude, “the darknet-genie will not be put back in the bottle.”  The technology is already out there. It can be easily created and distributed by a hobbyist programmer. It’s already distributed by offshore companies and sites.  Shutting down these commercial entities will not even shut down their existing networks.  Shut down the big networks and you end up with highly interconnected and efficient “small worlds” networks.  In this way, Grokster isn’t really about P2P – it’s just about all the other technologies that will be impacted.

Which is not to say that there would be no way to eliminate P2P.  Let’s not rehash the old can we regulate the Internet argument – sure we can. We could reshape the network so that ISPs or other traffic routers could have certain controls that would discriminate between types of traffic.  As FvL discusses here (search for “I’d rather filter” and follow comments), we could monitor all traffic and restrict anonymous communications so that we can track the source of distributed content.

[slightly updated 3 PM]

Filed by Derek Slater at 1:36 pm under General news
Comments Off on Banning Internet May Decrease Infringement

(Some off the top of my head thoughts that are not really that novel but that I want to jot down anyway:)

First biggie: how is Sony treated as precedent?

A wholesale reverseal of Sony seems unlikely.  Instead, one could casually make some distinctions, as the district court opinion in Aimster did.  None of those distinctions seem particularly reasonable to me, but that doesn’t me the Court won’t use them.  If the Court does go this route, it will be important which distinction they choose to make.

Second, how does this affect those arguing on behalf of Grokster and Streamcast?  Obviously, they will need to highlight how the Court should be bound by what they said in Sony and how, as the 9th Circuit demonstrated, those rules clearly apply here.  At the same time, unlike in the courts below, it seems hard to believe that that alone will carry the day.  The normative arguments will play a much bigger role – what is the judicial system’s role here?  why is Sony as interpreted below the best rule?  what are the costs of changing it?

Filed by Derek Slater at 1:14 pm under General news
Comments Off on Next Questions about Grokster