A Copyfighter’s Musings

Jonathan Zittrain spread the news as part of his keynote last night.  I’m glad my blurted “I don’t f-ing believe this” didn’t carry too far through the conference room. 

Tim Wu laid out the case for why the SC would grant cert. I only bought reasons 5-7, all of which explain but do not provide valid reason for the Court’s decision.  See the Grokster opposition to cert brief and FvL’s earlier post, but let me summarize some reasons why the cert grant is unwarranted.

The Court has gotten itself involved in Sony, Teleprompter, Fortnightly, etc., but that doesn’t provide any basis for getting involved here.  Those cases all involved fairly novel issues. Sony already set the standard in this area. You can draw distinctions between P2P and everything that’s come before it.  However, the underlying legal issues were already dealt with in Sony.  Indeed, that was the whole rationale behind the Grokster decision.

Moreover, the lower courts are still handling these issues just fine. There’s no circuit split that the Court needs to resolve.  The conflict over the consequences of passing that test is the substantial divergence between Grokster and Aimster, but Posner’s Aimster opinion is almost entirely dicta; the holding was entirely based on Aimster’s inability to show substantial non-infringing uses.  To the extent there is a conflict on that issue, it is minimal, and it’s not even clear that Posner’s standard in that narrow regard would not protect Grokster and Morpheus. 

Finally, and perhaps most importantly, Congress is already considering this very topic.  Congress is entirely capable of fine-tuning the liability standards should it choose to do so.  There is no urgent reason that the Court must solve this issue instead.

Filed by Derek Slater at 12:51 pm under General news
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The KaZaA case could be important in creating chilling effects for technology innovators in Australia (and potentially globally, given the sometime craziness of Internet jurisdiction issues).  I’ll grant that.  I doubt it will have much effect on P2P, not simply because people are already migrating away from KaZaA, but also because I don’t see secondary liability shutting down distribution of software that a hobbyist programmer can easily create and distribute.  But that’s an argument for a different day.

What are we learning from the KaZaA trial itself and the flurry of reports about it? From what I can tell, so far it’s a lot of posturing about two issues. First, does Sharman currently have control over its network?  Second, could Sharman create software that allowed the company more control?

The answer to the first question will certainly be interesting, but do realize that if liability rests on this ground (much as it did for Napster) it will have no effect on software like Morpheus, which gives Streamcast no control over its users.  A ruling against KaZaA on these grounds could be entirely consistent with the rationale in MGM v. Grokster.   I have no idea whether this would represent a chance in terms of Australia’s secondary liability standards, and I’m not saying that resting liability on these grounds is good or bad. I’m just pointing out that it would not necessarily conflict with the recent 9th Circuit ruling here in the US.

The answer to the second question is plainly yes. Of course Sharman could have designed its software differently and could be asked to design all future versions of the software differently. So could Streamcast. The important question is: can we rest liability on their being able to design the system differently? That’s a question the 9th Circuit answered in the negative and will be critical in the ruling in this case.  But as far as debating Sharman’s technical abilities at trial, this issue isn’t all that interesting.

Filed by Derek Slater at 4:55 pm under General news
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Decent chance I’ll be there – you should check it out too if you’re in the neighborhood:

**DJ Spooky**      presenting “Rhythm Science”–a live multi-media presentation of the history of digital art and media

**Mark Hosler of Negativland**      presenting “Adventures in Illegal Art”–a presentation illustrating the many projects, hoaxes, pranks and “culture jamming” of the band Negativland

**Nelson Pavlosky, Founder of the Free Culture campus chapter movement**  introducing the Free Culture campus chapter movement

For More Information:

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More from the Future of Digital Media series

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The wonderfully named Irina Slutsky has written a great article on Jason Kottke’s on-going problems with Sony.

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Donna’s made about a bazillion great posts over the last few days – go, now.  Sorry for my absence here – been tied up with a project that I will hopefully share with y’all within the next few weeks.

Filed by Derek Slater at 5:22 pm under General news
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The 9th Circuit yesterday ruled in Rossi v. MPAA that the DMCA notice and takedown provisions only require the copyright holder to have a “subjective” good faith and do not require analysis of whether the copyright holder made a reasonable investigation subject to an “objective” standard.  (via Techlawadvisor).  Don’t have time to blog more now, but the opinion is quite short and worth reading in full.

Filed by Derek Slater at 5:19 pm under General news
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Urs Gasser and Michael Girsberger have authored a new Berkman Center Digital Media Project report on present implementation of the EUCD.  This is one of several fascinating Project papers that will be released in the coming weeks – keep your eyes peeled.  Here’s the abstract:

“In this paper, the Berkman Center’s Digital Media Project team provides an overview of the current state of implementation of the European Union’s Directive 2001/29/EC, better known as the EU Copyright Directive (EUCD), which seeks to harmonize the divergent European copyright regimes and to transpose the WIPO-treaties (see chart). The paper analyzes the ways in which EU member states have transposed the EUCD’s provisions on the protection of technological measures (such as encryption, digital watermarking, copy-control technologies, etc.) into national law, and takes a closer look at the relevant definitions, exemptions, sanctions and remedies.

In essence, the paper demonstrates that EU member states continue to struggle with some of the thorniest problems already identified at the level of the EUCD, and leave it to the national courts and, ultimately, to the European Court of Justice not only to fine-tune the new legislation, but also to address and resolve rather fundamental issues related to the legal protection of technological measures. The paper suggests that the EUCD, in fact, has led to a certain level of harmonization of member states’ laws, but also identifies and maps significant differences among member states in the field of anti-circumvention laws.

A linklist to international and national legislation on technological protection measures with focus on the relevant laws of EU member states has also been made available here by the Digital Media Project team. Links to other useful materials and sources are posted here. “

Filed by Derek Slater at 10:06 pm under General news
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This is a must-read from SethS.  A reasoned look at Tivo’s increasingly restrictive approach, including how it relates to broader trends in terms of incorporating DRM into devices.  The conclusion:

“In terms of end user control, there is an opportunity for CE devices to converge up (enhancing customers’ control) and a risk of PC devices converging down (eroding it). I think the world the entertainment companies have built is providing exactly the wrong incentive at every point as this question is worked out.”

Filed by Derek Slater at 9:02 pm under General news
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Wired News has a feature on Weed today.  Also, there’s a fascinating article in the NY Times about Universal’s online-only label.  Apparently, they’re focusing on bands with small, established audiences – lower reward here, but probably lower risk, and overall pretty inexpensive for the label.  The artists have to pay their own production costs, but such costs are now rapidly dropping.  Meanwhile, it appears that they get a bigger royalty cut than they would in a typical major label CD deal.

Both articles demonstrate the potential effects of digital technology changing the industries’ cost structure and in turn the relationship between content creators and intermediaries.  Creators have more flexibility in how they release their works, with less reliance on intermediaries, and perhaps greater potential for success given the lower upfront investment needed.  At the same time, intermediaries are also increasing their flexibility.  Universal’s online-only label is basically just a marketer, with some added transaction facilititation responsibilities.  Weed manages transactions and facilitates consumers acting as legitimate distributors, cutting out middlemen. 

Filed by Derek Slater at 2:54 pm under General news
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News.com has the story; here’s the bill in full; PublicKnowledge is generally favorable, though see previous criticism of the ART Act not allowing fair use defenses.  The bill makes it a criimanl offense to record a movie in a theatre or to distribute a work online before its commercial release.  It also protects  companies like ClearPlay and the consumer uses they enable from copyright and trademark infringement suits, and reauthorizes the National Film Preservation Board.

Declan discusses why the entertainment industries haven’t been getting what they want recently.  Take note again of how much better the public interest is being represented today than just a few years ago.  Still playing a lot of defense, but at least it’s relatively successful defense.

Filed by Derek Slater at 2:34 pm under General news
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iTunes’ DRM was much celebrated because it appeared to allow a wide-range of personal uses – unlimited CD burning, shifting to portable players, backing up on other computers.  Many argued that these personal uses would satisfy most every consumer, so the DRM did not depress the product’s value and thus consumer interest.  Putting aside the various private uses that iTunes does not allow, this view seems to overlook the transformative uses, like sampling, that the DRM also impedes.  Many argued that the impact of this restriction is minimal because most people will not be making transformative, creative uses.  Even when you include all the amazing remix culture out there, this is still a small percent

Filed by Derek Slater at 1:39 pm under General news
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This Hiawatha Bray article (via Frank) brings up a really important point.  At some point soon, it may be necessary to revisit the wall between audio streaming and downloading.  People can record audio streams all they want, and, even if it’s illegal, it may be very difficult to stop. Moreover, given how the sound recording compulsory license for non-interactive steaming services, radio stations can acquire licenses without having to use copy-protection. (Note: I am not sure how the composition ASCAP/BMI licenses fit into this, but it appears their terms do not require such copy-protection either – look around, you’ll find people streaming in MP3 format.)

17 USC 114 has two interesting clauses in this regard.  114(2)(C)(vi) basically says that streamers can “take no affirmative steps” to enable recording and should restrict such activity to the extent is able to do so.  114(2)(C)(viii) states that streamers cannot interfere with “technical measures that are widely used by sound recording copyright owners to identify or protect copyrighted works.”

Nothing here seems to requires streamers to use an encrypted format. I’ve wondered whether these clauses would get dealt with in court, or whether we’d end up seeing an amendment to mandate DRM use to get the compulsory license.  Because, the Internet radio compulsory license couldn’t get any messier, right?

As Bray points out, this is another area where social norms and expectations are incredibly out of line with copyright.  Most people I’d bet think recording and permanently keeping copies of TV programs is totally legal.  Maybe, but I’d bet not, in that they’d be regarded as superseding a purchase.  With Internet radio, a copy is ending up on my computer in some form – whether you call it a stream or a copy, the bits are on my computer. Yet I can only acquire those bits on the condition that I not render them in a permanent state to replay them. 

Can norms reach this level of complexity?  Can technology fill the gaps?  Open questions I will have to get back to another day….

Filed by Derek Slater at 8:37 pm under General news
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More news via Paidcontent.  Still very short on details on whether we’re likely to see PPD or subscription services come out of this.  Rafat notes that services might allow sharing of low-quality copies for free and enable people to purchase the legit copies.  I say again: why not use superdistribution to bring this sort of service direct to consumers who are already in P2P?  Why not embrace P2P, not just by creating analogous environments to current P2P systems, but by selling directly through the current systems?  If you use something like Weedshare, you can use consumers as distributors and take your content to all the millions of eyeballs already in KaZaA, eDonkey, et. al. 

It’s worth noting that John Beezer, head of Weedshare, sees superdistribution working hand in hand with closed, filtered networks – see his comments to this post.  To me, the real power in embracing superdistribution now is that it gives a convenient way for people to convert their currently illegal behavior into lawful forms, retaining the ability to share and try out content.  You don’t have to shift consumers out of current P2P environments, and you don’t have to convince P2P services to filter.

This would, of course, require giving up on suing P2P networks and spoofing, but I don’t see the industries gaining much from that right now. 

Filed by Derek Slater at 2:36 pm under General news
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So reports Digital Music News.  Snocap is also reportedly involved in the BMG/Mashboxx/Grokster deal. 

It’s that only these closed network ventures get attention, while superdistribution services like Weedshare are left in the cold.  I understand the worry that distributing Weed files on KaZaA might lead people to then download infringing content, and the record companies don’t want to support those P2P ventures; however, Weed would help give them an easy alternative to those already on KaZaA – it wouldn’t really create greater illusion of illegitimacy to illegal downloading.  If they’re going to embrace a service like Grokster via Mashboxx, why not simply take the next step?

Filed by Derek Slater at 5:09 pm under General news
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