A Copyfighter’s Musings

Mary discusses more of the Digital Media Summit, including Professor Nesson’s talk.  The closest analogue to his idea in the Digital Media Project’s “five scenarios” is actually the Technology Speed Bump scenario, one that’s now been broken out on its own.

This scenario fascinates me for many reasons (its the motivation behind last week’s post on release windows). One interesting part is the role of DRM.  Unlike in today’s digital media market, DRM might have some use in preventing piracy in the speed bump scenario and the biz model Professor Nesson describes. 

Contrary to the content industries’ hopes, DRM does not stop piracy, nor does it even reduce piracy by itself.  Rather, it can only reduce the initial number of uploaders.  Given that one copy can spread infinitely, DRM has been declared basically useless.  Moreover, the speed bump threat model has been declared dead.  The darknet paper basically confirms as much.

But the darknet paper is also careful to note that DRM’s affects might vary “in the presence of a darknet, which is connected, but in which factors, such as latency, limited bandwidth or the absence of a global database limit the speed with which objects propagate through the darknet.”  Consider the plan Professor Nesson describes.  DRM becomes more meaningful because, if you can limit the number of initial uploaders, interdiction becomes much more possible and thus effective. Interdiction is tough if you have to stop myriad uploaders.   Moreover, by limiting the initial uploaders through DRM and their propagation speed through interdiction, spoofing can be more effective, because there are less good copies that need to be crowded out.

These impediments will not stop everyone. But in the short term, they might form an adequate speed bump to create that new release window.  Of course, interdiction and spoofing can be defeated.  And, as I have expressed before, I have significant misgivings about this scenario and am not confident that copyright holders will be able to keep up.  But if they could keep up only for a short period of time, it might have some benefit.  Maybe.  If so, then DRM might finally have an effect on piracy, as it was supposed to, rather than simply preventing competition, legitimate uses, interoperability, and innovation.  Maybe.

Filed by Derek Slater at 11:30 pm under General news
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Check out the new Audio Berkman about the iPod.  Nice mix of views from: Fred von Lohmann, Mike McGuire, Cary Sherman, Scott Kirsner, and Urs Gasser.

Filed by Derek Slater at 9:58 am under General news
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The Ellison v. Robertson  appeals decision came yesterday.  The district court noted that AOL had no obligation to monitor the actions of users for infringements, terminate repeat infringers, or investigate such users; in fact, 17 USC 512(i) “only requires AOL to put its users on notice that they face a realistic threat of having their Internet access terminated.” The policy is only a “mere threat,” which never needs to be put into action.   If 512(i) forced ISPs to punish people for infringement, then “most if not all of the notice and takedown requirements of the subsection (c) safe harbor would be indirectly imported and applied to subsections (a) and (b) as well.”  (I’d say that that’s already happened.)

The appeals court doesn’t spell it out, but they disagree to some extent.  According to the ruling, the ISP must have a notification procedure much like that for 512(c).  Thus, a service provider cannot simply create a policy and then remain willfully ignorant of notices pertaining to that policy.  Seemingly, an ISP would have to act on the notices to whatever extent its policy requires; otherwise, notices of infringement would still “fall into a vacuum and go unheeded.” 

Neither ruling touches on whether these notices must be of actual infringements. One can strictly interpret 512(i) to say that only repeat infringers, and, as opposed to 512(h), not “alleged” infringers, must be terminated – thus, only people found to have infringed by a court twice must be terminated.  In its more flexible reading of what it means to “reasonably implement” a policy, the appeals court points in the other definition of infringer, but it’s not clear from the ruling.

There are other cases that deal with this matter, too.  See Perfect 10 v. Cybernet (summary here) and In re: Aimster.  The former states that “sufficient evidence of blatant, repeat infringement,” and the latter affirms that the ISP must do “what it can reasonably be asked to do” to prevent repeat infringers from using the system.

Filed by Derek Slater at 9:14 am under General news
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Blockbuster is a new ally against region coding, sorta.  This article seems to say they have two beefs.  First, people are importing DVDs and using chipped players, so local Blockbuster’s are getting left out of the distribution loop.  Second, by the time we reach the international DVD release window, the piracy floodgates have already been wide-open from the domestic release window.  So, though not against region coding in principle, they’re against it in practice.

This reconsideration of the release windows is a broader trend in the movie industry.  Matrix Revolutions was released at the very same minute all over the world; X2 was released at the same time in different time zones.  As DVD sales grow and make up more of total revenue, the rental window shrinks.  Indeed, the entire cycle is becoming compressed.

(Cue thinking out loud:) There seem to be three factors at work here:

1.  Big budget, high marketing cost films create increasing incentives to release films broadly and recoup as much as the cost as quickly as possible.

2.  Going digital means going cheaper in manufacturing and cost to consumer.  Maybe we don’t need the jukebox in the sky – the jukebox is becoming priced to own for your home.  If tons of money can be made from those sales, why wait to price discriminate between people who would rent versus those who would get PPV versus those who would wait for cable TV?  As price goes down and convenience goes up, it might make less sense to have many windows spread out over time.  This should only continue as movies are sold online.

3.  Going digital, of course, means piracy.  That was the motivation behind the Matrix and X2 premieres.  It should have a similar impact along the whole timeline eventually.  Even if piracy doesn’t cut into theatre revenues, camcorder copies of theatre showings will cut into all subsequent revenue windows.  The more time between the camcorder copy hitting P2P and the DVD or digital download being released at a reasonable price, the more chance someone will choose to download.

Won’t all this compressed cycle cannibalize some of the revenue streams?   Maybe. But consider how precisely movie studios can track box office numbers. Add into that equation how precisely they could track online downloads and how easy it would be to create the files on a whim.  They could pin down when the box office is starting to cool off and immediately shift gears into the downloads market.

Right now, the movie industry seems to be adjusting relatively well to this – DVDs have been a huge boon.  I’d say we can expect similar compression in the music cycle – in fact, we are already seeing some shfits.  But will we see similar success?  To what extent will they too be able to sufficently recoup costs in a shorter timeframe?

Filed by Derek Slater at 11:36 pm under General news
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EFF reports “The Hon. Jeremy Fogel indicated he intends to issue a ruling within the next two months on whether Diebold will face the consequences of abusing copyright law.” Maybe it’s just wishful thinking that this could go in our favor.  But even getting this far feels like a win.  Here’s why:

“The plaintiffs liken themselves to modern Galileos persecuted by authorities. I fear that a more apt analogy would be to modern day Don Quixotes feeling threatened by windmills which they perceive as giants. There is no real controversy here.”

That’s from the judge at the final hearing for Felten v. SDMI.  He must have felt very clever. I doubt security researchers felt any safer.

Filed by Derek Slater at 12:05 am under General news
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The current trend in digital media services is the Digital Music Store – more or less, you pay to download or stream copies of songs.  Whether you pay by the song or by the month, you’re paying that particular service to give you access to those copies. Though people now have the ability to spread copies far and wide, these services hope that that won’t be a major problem.  To an extent, the Stores are predicated on a combination of technology and law making P2P distribution and downloading significantly costly to the user.  In this way, they imagine a future in which copies can still be controlled.

ACS’ jump off from a different spot.  For one, you wouldn’t really pay for access to a particular service in the co-op or mandatory models (note: this a new draft from Professor Fisher).  Anyone could be a streamer or download service, so long as they counted the relevant downloads.  Also, they try to build on rather than fight against the ability to make copies of digital media.  But they don’t do so by simply accepting that the exclusive right to copy and distribute are dead.  Rather, they try to monetize those actions in alternative ways.

In terms of current dialogue, I’d say these two models dominate the current landscape.  Before, people talked more about a myriad of other alternative models that accepted that copies could no longer be controlled and thus focusing on that revenue stream should greatly lessened if not abandoned in the digital age.  Raymond Ku and Mark Nadel (among others) have fleshed out the ideas well. Mary explains the basics, and many models are listed here by the EFF.  Among them: tip jars and donations; live performance, merchandising, and other complementary products generating revenue; ad-driven models; and charging for the first copy only (see: Digital Art Auction and Street Performer Protocol).  Even Magnatune, which sells copies of albums, follows this pattern to some extent – the sales are almost donations, because the songs are CC licensed, there’s nearly unlimited high qualify try before you buy options, and you choose your own price – basically, Magnatune is banking on fans in niche markets will be highly devoted to the artists they support. 

Two things occur to me about these models.  First, they are both more and less sustainable than some people in the past have asserted.  When I first read about these models, tip jars in particular (I don’t know when), they were talked up a lot – when Stephen King stopped writing his book online, people said that these schemes were pure hype.  The truth is likely somewhere in between.  These models can make money – the question is how much and for whom, and what meaning does that have for our media environment. 

The second point, then, is just that.  How far do these models go towards creating a thriving artistic culture? Start with these general counterarguments (pg 74). Because of cost savings, one need not necessarily replace the entirety of the revenue streams from copying and distribution; however, those are sizeable streams to make up.  Perhaps we don’t need to make them up – we’re content with a lower amount of revenue and thus maybe a smaller, or at least a different, media market.  Fine, many musicians don’t currently make money off of selling copies anyway, but many artists also don’t make much money from the other streams.  Are we expecting a tiered and varied industry, with some nationally popular artists, some regionally, many indies, et al?  Or will we see a ton smaller indies be sustainable but unable to make revenue, exposure, and success go beyond that?  Will we have a lot of people like Magnatune’s artists, focusing on niche markets but not moving above, and are there any negative consequences of that?  And what about the consequences of having artists overly dependent on selling merch or pushing ads – aren’t only certain types of media and artists capable of doing well this way? 

There is no satisfactory or unsatisfactory answer here.  Rather, I want to get a sense of why people think these models will or won’t work, and what it means for them to work.  What does that world of alternative biz models look like?

Filed by Derek Slater at 4:50 pm under General news
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Renny Hwang reports in what one will be one of many Digital Media Project papers coming out in the near future.  Highly recommended reading.

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1.  “Record Industry Cuts Corners in Crusade Against File-Sharers
Public Citizen, Electronic Frontier Foundation and ACLU Say “File Lawsuits Properly”. The groups do not question the seriousness of the illegal activity alleged by the record companies, but object to the process the companies have tried to use to obtain the file-sharers’ identities.”

I’m glad they are sticking to their guns and ensuring that this entire process is carried out as fairly as possible.  At the same time, the more they push, the more they leave themselves open to attacks that they are really trying to protect infringers.  An unforunate consequence, but one that I expect they will struggle with more and more.

2.  “MacArthur Foundation Awards $600,000 to Electronic Frontier Foundation
“There are a number of influential members of the entertainment industry that use industry standard setting meetings – such as the Digital Video Broadcasting Project in Europe – as opportunities to mandate technological features that control digital media, such as devices for digital television that limit the user’s ability to copy programming for personal use or to skip commercials,” said Jonathan F. Fanton, President of the MacArthur Foundation. “By participating in such meetings, the Electronic Frontier Foundation is working to protect the rights of the user and ensure that future uses of technology are not restricted by the industry.””

It is impressive to see the MacArthur Foundation throw its weight behind this project, among others, in this field.  One, two, three years ago – would you have expected this?

Filed by Derek Slater at 12:47 am under General news
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This article mentions a few new legit services that take advantage of P2P. Wippit seems particularly interesting.  It filters in content using audio fingerprinting.  The rest is a little hazy to me.  The company advertises that you can share filtered in files with others, but this article says you can’t.  Pretty sure the former is true.  The company advertises MP3 downloads, but that same article says it’s DRMed WMA.  Pretty sure the latter is true, at least with EMI on board.  According to EMI executive Ted Cohen (in an email to the pho list), songs are currently only downloadable from EMI servers, not from other peers.  What is really surprising is that you can supposedly keep all the songs after the subscription ends – these are not rentals; they are sales – I swear I read the opposite somewhere else, but the website attests to that, too.

So a little more research is needed. In any case, it’s heading much closer to blanket collective licensing – not quite an ACS, but similar in terms of the payment and distribution model.  A very interesting development indeed.

Filed by Derek Slater at 12:40 am under General news
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One commenter questioned my statement: “How will people become accustomed to a digital world in which you have to rebuy all of your software players and music catalog whenever a better format, player, or service comes out?”  Yes, people have had to shift formats over time, but I think there are three countervailing factors at work here

1.  First, the old barriers don’t apply in the same way now.  Bits are bits.  You can’t upgrade a tape player to play CDs.  You can (theoretically) upgrade the firmware on your MP3/CD player to also play AAC.  You can’t turn your tape into a CD.  You can (theoretically) convert your MP3 into AAC to play it on a compatible player. 

2.  That said, I think people will only tolerate circumstances in which they actually get an improved sound quality, like moving from tape to CD.  Sure, if a new codec came around that sounded a lot better than MP3, people might rebuy their entire catalog.  But, unlike in the analog world, they wouldn’t necessarily have to do so to make use of a new player – they wouldn’t have to have one player for MP3 and one for New-Codec – they wouldn’t have to choose between Beta and VHS.

3.  Given that people are used to a world in which MP3 is ubiquitous, there is little reason for them to shift laterally to a codec linked to a proprietary DRM format.  I don’t see people becoming accustomed to the walls between iTunes, Real, and WMA-based services and players.

Filed by Derek Slater at 12:21 am under General news
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I’ll add more later, but here’s one from the SJ Merc.  From this and reports on pho, I gather that that things went well – two judges seemed to be favorable to the P2P defendants.  Doesn’t mean much now, but it’s better than nothing.

Filed by Derek Slater at 12:04 am under General news
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Scoble added a response here, in part responding to me here.  People can choose to follow Scoble’s lead, but I hope they reject his logic and see that buying DRMed music it a choice, and a more complex one than Scoble descibes.

Choosing to do as Scoble does is not a choice between illegal and legal sources of music, which is how he sets it up.  You can get legal music in unencrypted formats, including CDs.  Scoble then states that it must be online – how about eMusic?  Or buying directly from artists?  (I was very close to going with eMusic right before they changed their pricing scheme).

People will continue to weigh the costs and benefits of downloading illegaly, buying legally, buying open, etc. and end up right where Scoble is.  But it is far more complex than saying, if it’s legal, it’s gotta be DRMed.  Buying legally does not mean resigning yourself to DRMed music, and believing that music in the present and the future must be DRMed is plain incorrect.  As Cory said, vote with your dollar for the future that you want.

If you still buy DRMed music, fine.  But you don’t have to make that choice in order to buy legally – I hope Scoble and others get that.

One reason I see this as particularly important is that, when people resign themselves to DRM today, they tend to do so in relation to DRM as it stands in a DMCA world.  Return to Scoble’s reasoning – if you want to buy legal and online, you must buy proprietary DRM; if you must buy proprietary DRM, you must be locked into the players licensed by the DRM maker.  But that limitation relies on the DMCA.  You cannot legally create the interoperable players because of the anti-circumvention provisions.

Following Scoble’s logic, we must simply accept that the DMCA is part of the landscape. Buying legally means buying DRM which means buying the DMCA.

Again, that reasoning is just a choice, and people have alternatives.  They don’t have to buy into the DMCA world.

Filed by Derek Slater at 11:56 pm under General news
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The 9th Circuit will hear the Grokster appeal on Tuesday (if you want to attend, see details here).  I have written quite a bit  about it before.  (Update) See Donna and Frank for more.

For a class this semester, I got to take a lot of these pieces and put them all together into a longer paper: “Protecting Sony and the Internet: A Discussion and Critique of Imposing Harsher Secondary Copyright Infringement Rules to Inhibit Peer-to-Peer File-Sharing” (in RTF format and some poor HTML).  Right now, the HTML version is not hyperlinked up, but I did extensive footnotes, so there are plenty of pointers to other resources.

I wrote it for an audience that doesn’t really know about these issues, has little technical knowledge, and has some general legal knowledge.  If you know a lot or a little about the case, I hope that it will be informative. What I tried to do was synthesize arguments about what is valuable about the Internet with arguments about why Sony is a good rule, and then look at that in relation to the negligence rule approach.  In doing so, I hope I have adequately drawn on, fleshed out, and added to those other arguments.

This is very much a draft.  There are some things I like a lot about it, some things not so much.  Some of you out there have already given me some very helpful comments, many of which I have unfortunately not had time to incorporate – in any case, thanks very much for the help.  Hopefully I’ll be able to come back to this sooner rather than later and add some more pieces (particularly, it needs more balance with a fuller exploration of the negligence approach counterarguments, among other things – but see for yourself).  If you have comments, please do send them along.

Filed by Derek Slater at 10:51 am under General news
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A few weeks ago, Ernest wrote: ” But have we heard anything from the movie studios about [Oscar “screeners” ending up on the Internet]? Why haven’t they taken any action on this blatant disregard for the rights of the copyright holders?”

Maybe they heard Ernest, because two studies have now sued actor Carmine Caridi for allowing his friend, Russell Sprague, to copy a VHS screener and distribute it on the Internet (news via pho).  Sprague has also been charged with criminal copyright infringement.  The MPAA hasn’t sued their own customers, but they have sued one of their own – very interesting.

Filed by Derek Slater at 3:52 pm under Big Ideas
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Certainly not the first to use P2P as a marketing tool and to reduce bandwidth costs, but I feel like pointing it out as a prelude to the Grokster appeal hearing, which will happen next Tuesday.  I’ll have a bigger prelude in soon.  This one is a nice mix of the recent past with the present and future – once again, Michael Robertson gets it:

“Peer-to-peer (P2P) programs are for people who like to take advantage of the best technology available to them. Thanks to direct connections and multiple download sources, you can now download large files in a small fraction of the time it would take to get them from anywhere else. If you downloaded a file called LindowsLive-4.5.2xx.iso from a P2P, this is NOT illegal, and federal agents won’t be knocking down your door for doing so.”

Filed by Derek Slater at 11:06 pm under General news
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