A Copyfighter’s Musings

The Supreme Court denied cert to Aimster today (via Ernest).  As I’ve said before, I think this is good news.  We’ll see if they actually take it to trial.

Filed by Derek Slater at 1:50 pm under General news
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IP Justice reports: “In an important victory for Italian consumer rights, an Italian court has rejected the seizure of Sony Playstation game consoles that use modified chips to permit unauthorized uses of the game systems. The case is one of the first to be brought in Italy under the new European Union Copyright Directive (EUCD), which is modeled on the controversial US Digital Millennium Copyright Act (DMCA).”

The judge tells it like it is – Sony’s protections were not about preventing piracy, but about preventing competition, innovation, and consumer uses.  He makes a distinction between “machine sellers” and copyright holders under the Italian DMCA, affirming implicitly that copyright law wasn’t meant to protect the former in this way. (I don’t know the law well enough to say without further reading if he got it right.  See here for more on Italy’s DMCA.)

Filed by Derek Slater at 10:34 am under General news
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Last week, Ernest wrote: “I, of course, remain convinced that telecommunications law, copyright and the First Amendment are related throught the concept of distribution … that they can all be analyzed through the lense of rights of distribution.”

Well, Jack Balkin doesn’t exactly cover all those issues in his latest paper, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society (via Legal Theory Blog).  He’s writing about free speech as a principle moreso than the First Amendment itself, but he does relate it to telecom and IP.  He does so by highlighting what the Internet the Internet reveals and makes “salient” about free speech, and discussing what the consequences should be for our policy-making.  In sum, he says we need to shift our focus to creating a democratic culture, rather than simply democratic governance or deliberation over public issues.  Read the abstract and the article for more – here’s a key quote to get you started:

“Freedom is participation. Freedom is distribution. Freedom is interaction. Freedom is the ability to influence and be influenced in turn. Freedom is the ability to change others and to be changed as well. Freedom is the ability to glom on and route around. Freedom is appropriation, transformation, promulgation, subversion, the creation of the new out of the old. Freedom is mixing, fusing, separating, conflating and uniting. Freedom is the discovery of synergies, the reshuffling of associations and connections, the combination of influences and materials.

Freedom is bricolage.”

And, in closing, a hope and a warning:

“The digital revolution is a revolution, and like all revolutions, it is a time of confusion, a time of transition, and a time of opportunity for reshaping the structures of the economy and the sources of power. As a time of opportunity it is also a time of opportunism, a period in which the meaning of liberty of expression will be determined for good or for ill, just as the meaning of economic liberty was determined in an earlier age. Make no mistake: The digital age will change the meaning of freedom of expression. The only question is how it will change. If we do not reconsider the basis of liberty in this age, if we do not possess the vigilance of the guide as well as the guard, we shall end up like every person who travels through the wilderness without a compass, or through the forest without the forester. We shall end up lost.”

Balkin also argues that courts will ultimately be ill-suited for the policy-making we need. Courts generally protect free speech in the form of individual rights, whereas, according to Balkin, promoting a democratic culture in the digital age requires a conducive “technological and regulatory infrastructure.”  That will take a more comprehensive approach to analyzing technologies than a court, facing a particular existing technology under a statute with limited remedies, can accomplish. Citing Lessig in Code and an interesting article by Beth Noveck entitled Designing Deliberative Democracy in Cyberspace:the Role of the Cyber-Lawyer, Balkin states that this requires “not simply lawyers who study cyberlaw, but lawyers who think about how technology should be designed and how public policies can be achieved through technological design.”

You might also want to check out an article I come back to again and again, Neil Netanel’s Copyright and a Democratic Civil Society. The result is somewhat the same so far as copyright goes – Netanel argues for greater ability for individuals to build on works of others and participate in culture – but he does come at it from more of a demcoratic governance standpoint.

Filed by Derek Slater at 10:23 am under Big Ideas
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The case is over, the studios agreed not to sue these customers, but they can certainly sue in the future – the court did not rule on the merits.

Filed by Derek Slater at 9:57 am under General news
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See this article (via Frank) and Weed’s website.  Here’s how it works: you download a song; listen to it three times, at which point you must buy it or get rid of it; purchasing gives you a WMA version, with permission to burn a CD, copy to a portable player and copy to 2 other computers; if you distribute the song to someone else who goes through the same process and buys the song, you get a cut of the money.  Get rid of the DRM, and you have something a lot like mediAgora.

Filed by Derek Slater at 9:26 pm under General news
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In a News.com article, Sen. John Sununu says:

“The fundamental problem with the approach of the RIAA took is that it was based on legislation that created special property rights,” Sununu said. “Suddenly, you had a private entity that’s able to issue subpoenas, which is unprecedented.”

“That’s not what the DMCA was intended to do,” he said. “We can’t be writing legislation that gives holders of certain types of intellectual property special rights…We can’t carve out special legislation to give special powers to certain types of content.”

I definitely appreciate his sentiments (as does Jason) but…

If “that’s not what the DMCA was intended to do,” what were the intentions?  It was certainly intended to allow 512(h) subpoenas for 512(b)-(d) providers, and it was all about giving copyright holders special rights.  I would appreciate it if people faced up to that – that a lot of the “unintended consequences” were built right into the law, even though the Congressmen didn’t take time to consider them.  Would it have been a better law if it were broader and anyone could get those subpoenas or circumvention of any measure – whether related to copyright or not – was illegal?

And the “fundamental problem” isn’t really that we created “special property rights,” in that special rights aren’t necessarily bad. These rights certainly were bad, but the bigger problem was that we assessed and created those rights without due regard for other rights and interests, e.g. fair use, privacy, scientific research, technological innovation.  I hope we start looking for the broader balance point, rather than just playing around with these narrower issues.

At the same time, it is encouraging to hear another Congressman knock the DMCA.  Even though he’s only talking about 512, I figure if people talk about the need for some element of copyright reform enough then other important issues are likely to be back on the table, too.

Rep. Joe Barton is another Congressman who gets it:

“I don’t agree you’re going to get teen-agers and young people to believe they’re doing something immoral” in file swapping, he said. “The industry has to decide on a different model.”

Filed by Derek Slater at 9:06 pm under General news
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The new year is a transition time for many of us, myself included.  I decided recently to take this next semester off from school.  In the spring (~April), I’ll be travelling around the country, seeing new things and doing something I never imagined I would.  My plan is as simple as that, still unfolding, and, for now, that’s a good thing.

In the meantime, I am going to be living in Westchester, NY, and I’m looking for part-time or full-time work in the area or in New York City until I leave.  If you, or someone you know, might be willing to employ me, please email me and I can send a resume, etc.  I am open to any available opportunity – in particular, I am looking for work as a research assistant in any legal area, preferably intellectual property or cyberlaw.  I’m also interested in media or marketing related positions.

This also might mean my blogging pace will change, what with not being on the flexible school schedule.  Certainly, when I’m travelling, don’t expect me around.  Just a heads up.

But since I’ll be travelling, if you live somewhere out there that I should visit, do tell me.  I’m still mapping out what I want to do and see, so I’d love suggestions.  In any case, I will eventually end up in San Francisco for the summer, where I hope to see and meet many of you.

Filed by Derek Slater at 1:58 pm under General news
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News.com tries to explain it. Kevin Doran and Brad Hill (post on Real not online yet) have excellent critiques. 

Kevin reports that RealPlayer10 doesn’t enable clear access to Rhapsody, thus going against reports that the store would “whet appetites for the” subscription service. I wonder: why didn’t they integrate the two together a la Napster 2.0? 

Brad discusses myriad technical and design problems among other annoyances.  He draws conclusions along the lines of mine regarding Real’s using yet another proprietary DRM format.

This whole business about RealPlayer playing iTunes files seems rather silly to me.  Apparently, RealPlayer is just accessing a currently installed version of iTunes/Quicktime in the background – an Apple program, not any program distributed by Real, is still doing the legwork.  Sounds messy.

So, I still don’t get what they’re doing.  They have now produced a product that is no better than the existing pay-per-download services.  In fact, its proprietary DRM makes it worse.  Unless everyone flocks to this format and Real dominates the market – highly unlikely, especially given how Real’s file format didn’t take off for anything aside from streams – I don’t see how this will do well. Nor do I understand how they expect to make money if it doesn’t.  They can attract people to their other pay services, but, unlike the complementary relationship betwen iTunes and iPod,  the download service and other Real services are pretty separate.

Filed by Derek Slater at 2:13 pm under General news
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The Chronicle focuses particularly on the effect on colleges.  I’m quoted towards the end, with a moderately accurate slant – I do think change is unlikely, but I’m less definitive than the article makes me sound – there are factors that cut both ways. Let me add two quick clarifying pieces. First, long run things could change, but for the forseeable future I doubt most students will see this decision as a free pass to start downloading again; for those who were worried about being sued, I doubt it was because the RIAA was proceeding under the fast-track system.  The key is how this affects the RIAA’s actions long term. Second, not only have students figured out about privacy-enhancing tools and the uploading/downloading distinction, but those who haven’t aren’t going to be better informed by this ruling – so that’s another reason to not expect change.

Filed by Derek Slater at 2:34 pm under General news
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The Berkman Center’s Mary Bridges wrote up a nice paper about the Diebold memos controversy, includings its timeline and implications.

Filed by Derek Slater at 8:32 pm under General news
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Read through Frank’s links about the Pew Report on P2P downloading. A couple of thoughts I haven’t seen elsewhere

1.  What about services like Earthstation 5, and Morpheus with its proxy servers, and other similar services with privacy enhancing features that were left out of the report? For those who are still sharing, which services are they using?  Will we have a similar effect to when Napster was shut down?  First only some migrated to the new services, and then word quickly spread and all Napster users moved over.  Could there just be a lag in adopting these other services?

2.  Does the RIAA have a target number in mind?  What level of piracy would be tolerable?  Is one in seven good enough?  If we reach the target, what will happen with DRM?  If infringement is stalled to a tolerable degree clearly because of the lawsuits, then what need is there to pursue DRM, regardless of whether you see it as a futile solution?

3.  Will the effect last?  If people actually have been scared off now, would a lapse in lawsuits perhaps lead to some sharing again?   A related question: if the Verizon decision leads to fewer lawsuits, particularly over the longer term, will people respond to that?

Filed by Derek Slater at 8:20 pm under General news
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Professor Solum took notes at the Association of American Law School’s section on Constitutional Law, Copyright, and the First Amendment, starring Neil Netanel, Ed Baker, Tom Bell, Jessica Litman, and others.

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At least the companies discussed below are trying to head in a better direction.  Does this market really need another proprietary format?  Can it handle that?  Can Real get away with songs that will not play on ANY current players?  Apple had the iPod to bank on; Real doesn’t even have that.  So with Rhapsody already out there, what are they doing?

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Project Hudson, the Content Reference Forum, and Phillips’ as yet unnamed project are all billing themselves as better DRM – DRM that’s open, interoperable, and non-proprietary, with liberal usage rules.  They might even allow some sort of file-sharing in a limited form.  Kevin Doran has some particularly choice thoughts on the first; here are some older comments from me on the second. 

A quote from the article on the third exemplifies what is so perplexing for me about these ventures:

“‘The electronics industry recognizes that Microsoft is a formidable player, but consumer electronics makers do not want to become dependent on Microsoft. They need an interoperable and independent system,’ said [Ruud] Peters [Phillips’ chief executive of IP and standards unit]. ‘DRM is an accelerator which will boost digital sales of media, because it will convince media companies their content is protected. It should not be a competitive weapon,’ he added.” (emphasis added)

Someone should put that last point on a billboard somewhere – DRM should not be a “competitive weapon.” But why do they stop there?

Remember three key reasons for DRM that its proponents use: 1) Protect copyrighted content to prevent infringement, 2) limit and charge for consumer uses, 3) act as a “competitive weapon,” limiting interoperability and enabling tied products (e.g., iTunes with iPod).

At least on their face, all music services today talk as if (2) is not a goal.  Let’s accept for the sake of argument that they honestly mean that.

These new DRM standards also reject goal (3).  In today’s digital music market, it’s a surprisingly novel concept, a clear deviation from how DRM is being used right now (and in the future)(via Frank, for this link and others).  Now, almost there, they’re about to put two and two together…

and then they get all caught up on point (1).  They watch as DVD Jon creates workarounds for Apple’s FairPlay.  The analog hole is and will be there.  For the forseeable future, DRM does not seem to be the solution.  As Fred von Lohmann notes, “Every song on iTunes Music Store has been available on the Peer to Peer networks within four hours,” regardless of the DRM.

So how do they add this all up and get DRM?  They make DRM about apparent, not actual, protection given present circumstances.  They want to “convince media companies their content is protected,” even though that’s not the full story.  The equation doesn’t have to add up.

At least the digital music services out there seemed to have a reason for the DRM by pursuing goal (3). Ultimately, I think it’s a bad choice, both for consumers and the long-term livelihood of the market, but at least in that sense there was a rationale (or rationalization).  But now people are putting that goal aside.  If they’re going to pursue point (2), and frustrate consumers, then I think everything is pretty hopeless.  And point (1) seems pointless for the forseeable future. 

So why all this push for open DRM?  If the RIAA and music vendors are willing to go with that, why not just use MP3 and have a go of it?  To do that, you don’t need to invest any time, effort, and money into creating the standard, popularizing it, and competing with the others.  MP3 is already ubiquitous.

To me, it’s that simple.  So when I hear these tech companies talking about new open DRM standards, it’s all about competition. It’s got little to do with what will help move the music marketplace along, and everything to do with those tech companies duking it out.  For those that don’t see DRM as a competitive weapon, they probably would prefer it if the RIAA just let Apple sell MP3s.  But since those tech companies don’t have that option, so they have to keep fighting it out in the DRM market. 

Seems like a total waste to me, particularly when a better way remains out there.

Filed by Derek Slater at 7:24 pm under General news
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Jason Schultz discusses remixing, copyright, and trademark in this post.  He writes:

“Traditionally, derivative works have been things like movies based on best-selling books or sequels based on an original hit. In other words, an entirely new and arguably ‘original’ work that draws extensively and necessarily from an older one. It has not traditionally encompassed minor variations on a theme, contextual changes, or commentary on the original work.

Jason surveys some cases involving such “minor variations.”

It also might be worth checking out the other half of the edited film cases Jason mentions – the Cleanflicks parties.  Cleanflicks, as opposed to ClearPlay, sells edited copies of film (buying one legal copy for each edited one they sell), but it’s a similar “minor variation.” However, from what I know, the caselaw is far less favorable in this case.  Cleanflicks isn’t that different from Kinkos’ making coursepacks (see also the Michigan case) or (though not a derivatives issue) MP3.com’s space-shifting.  In the latter cases, though the action when taken by the owner of the copy might have been fair use, it was not when taken by the third-party for money.  As Jason notes, first sale doesn’t help here because copies are being made.  But let’s even say that Cleanflicks was somehow producing the edits without making a copy. Even then, first sale wouldn’t necessarily help.  First sale only limits the distribution right, so the derivative works right is still fair game, just as it was in the Albuquerque ART case that Jason discusses.  (For more on these cases, see this debate at Berkeley).

Filed by Derek Slater at 2:03 am under General news
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