A Copyfighter’s Musings

More thinking out loud:

When I brought up derivative works the other day, I mentioned that Fisher’s proposal “may seem like a clean and simple way of eliminating the problems inherent in the derivatives right.” While that may be true, there is reason to question whether his plan is the best way of treating derivative works.

Consider the making of a derivative in the present legal regime.  Say part of X’s decision to make a movie is based on the potential for revenue from video game, toy, book, and other derivatives.  Say part of Y’s decision to license the right to make a video game based on X’s movie is that no one else will be able to make such a video game.  (The assumption about Y is a bit more plausible than the assumption about X, but let’s work with both for now.)

Now consider how the decision making might change in Fisher’s scenario: X’s incentive, initially, looks somewhat the same; X won’t be able to control the licensing, but X will still receive revenue from derivative uses. Y’s situtation, however, changes. Y now will have to compete with many video games.  While Y can still invest more to make the best video game, his potential for revenue will be challenged by other derivative makers. And now, looking backwards, X’s situation does change. If many people are like Y and decide not to invest in a derivative because of increased competition, then X’s revenue will greatly decrease. Moreover, even if some people hang around to make derivatives, if the people willing to make high quality derivatives are driven out, then X’s revenue will decrease.

To consider it in another context, think of the argument made against widespread proliferation of fan fiction. If everyone can make sequels of the newest best seller, then people will become so tired of the story that the original author will have no incentive to continue writing her stories and no movie producer will want to license it for production. ([added:] Given the low-level distribution of most fan fiction writers, this argument is generally quite overstated. But, if you consider commercial, large scale derivative uses, then the argument makes a bit more sense.)

I don’t know enough to state conclusively if these arguments are good or bad (or even plausible). If we’re trying to remunerate artists fairly for what they contribute to future work, then Fisher’s proposal seems to do the job well. But I wonder how the incentives and production of derivatives would change. 

Again, I’m doing this in the context of trying to think about the a better derivative works policy in general. And I guess what I’m talking about here begs the bigger question: what justifies the derivatives right?  Let’s start with this reading list, and go from there.

Filed by Derek Slater at 6:39 pm under General news
Comments Off on More on Derivatives (and CLs)

Bricoleur links to this great discussion between Professors Nesson and Fisher (with Professor Zittrain, too, towards the end) – it’s got a slightly expanded view of where Nesson is coming from.

Filed by Derek Slater at 6:10 pm under General news
Comments Off on More on IPHacktivism: A Discussion Between Nesson and Fisher

Some brief responses to Donna’s/Charlie Nesson’s questions:

What are the objections? The EFF raised many last year in response to the Berman bill.  Read it for the specific criticisms – here’s the overall point:

“The proposed law amounts to government-sanctioned vigilantism — copyright owners are given the power to ignore the law in pursuit of those that they decide are guilty. There is no warrant requirement, no trial, no prior notice to the targets, no due process, and very little recourse for innocent bystanders caught in the cross-fire.”

Sounds a heck of a lot like the current criticisms of the DMCA subpoena provision. Both put a great deal of power, without a lot of responsibility, in the hands of anyone who holds a copyright (which means effectively everyone). These hacktivist techniques will inevitably be used against the innocent, for purposes aside from stopping copyright infringement.  Perhaps your privacy is more valuable than your computer system’s resources, but I’m not sure that’s enough to allow copyright holders to be vigilantes.

I suppose these measures wouldn’t affect e2e, but they would still have grave consequences for the Internet. As the EFF’s comments note, innocent people on shared connections would be impacted, while ISPs would have to deal with this added hassle.

A broader point about harming ISPs:  Put aside, for the moment, arguments about whether the DMCA safe harbors are too strong or too weak. Remember that there used to be a time when we were trying to figure out how to reduce the burdens of secondary parties. To me, that perspective still makes sense – copyright shouldn’t dominate technology creation and Internet politics, just as it shouldn’t dominate the university. So, is that point now incorrect to the extent that sanctioning DoS attacks makes sense?

[update – footnote: I don’t mean to suggest that Professor Nesson’s talking about self-help with no potential for liability for copyright holders if they mess up (the Berman bill didn’t really have that). Rather, I’m not sure liability for messing up is enough to make up for the collateral damage and the potential for harming innocents. Without any due process, I don’t trust copyright holders to police fairly. And I doubt that many people innocently caught in the crossfire will be able to fight back.]

Filed by Derek Slater at 2:54 pm under Big Ideas
Comments Off on Raise Your Hand If You Think DoS Attacks Are Good

One feature of Professor Fisher’s plan that I find especially intriguing is the removal of restrictions on derivative works. Sure, derivative makers would have to give a portion of their revenue to the original work’s creator, but they wouldn’t have to seek permission, go to court, or extensively negotiate license fees.

Today, to achieve the arguably good aim of incentivizing creators by allowing them to capture further value from their original creations, we consequently silence the expression of others.  In a time when technology is breaking down the distinction between customer and creator, copyright law’s exclusive right to make derivative seems out of step.  We can all be making homemade remixes, mash-ups, and collages, drawing on and contributing to a creative commons; yet, most of us cannot do so easily, cheaply, and legally. 

Why are only parodies – whatever those are – allowed? Why not satires? Why not derivatives that only use a small portion of the original? Why should a copyright holder get added revenue if the derivative would not cause any economic damage? And why should all creators be left vulnerable to lawsuits adjudicated under the uncertainty of fair use?

Fisher’s proposal would sweep all this away in one-shot. [Footnote: Of course, one can imagine lawsuits over whether someone reported the right percentage taken from an original.]  While that solution may seem like a clean and simple way of eliminating the problems inherent in the derivatives right, it’s a long way from where we are right now.

I’m interested in researching public policy solutions that could be more readily applied within the current confines of copyright. Some ideas:

• Could a revamping of fair use be sufficient?  Or, will any fair use balancing test inevitably lead to sustantial uncertainty that significantly chills speech?
  
• How about Kozinski’s plan to move away from fair use and towards a restructuring of damages without injunctions? You’ll still get dragged to court, but at least you won’t be totally enjoined. Is estimating damages still too uncertain a standard?
  
• Could any form of compulsory licensing work? We already have it for cover songs. Are the transaction costs prohibitive? How would we adapt compulsories to sampling in different mediums and to account for the degree of sampling/remixing/remaking/reimagining done?  Do we create mechanisms to separate a “clean films” company from a Vicki Bennett from a fan fiction writer? How?

I’m sure there are papers on this somewhere, so I’m going to start looking. If you can suggest anything, please send them to me.

Filed by Derek Slater at 3:57 pm under Big Ideas
1 Comment

Go here – I can’t think of anyone better than Donna to do this job.

Filed by Derek Slater at 6:27 pm under Big Ideas
Comments Off on Donna on Let the Music Play/Pay

We just got one.  This is the perfect example to use in Congressional hearings about the subpoena provision – it’s even better than the previous notice and takedown foul ups.

Let’s say 1 out of every 261 subpoenas is erroneous. That’s small as a percentage, but, extrapolated over an entire population of copyright holders (which we all are to some degree), the potential total errors would be astonishing.

Filed by Derek Slater at 3:40 pm under Big Ideas
Comments Off on Give Us a Break

UPDATED 9/24/03, 6:30 PM

Ernest coins the term “public domain lottery” to describe one possible facet of a CL system. I’m not convinced it would turn out as he says it does.

Think about public domain books available today. Some are just the bare bones of the book, some have explanatory footnotes, some have prefacing essays, and some even combine several books by one author into one volume.

Won’t people still download these different versions based on the valued added to the work? Sure, you might be able to get a book onto a P2P system first. But once someone adds literary criticism to the work, perhaps many will shift to downloading that version.

[added:] …and follow the discussion (this link leads to a clearer version than the comments field) – I’m adding more points in there.

Filed by Derek Slater at 6:15 pm under General news
5 Comments

As I said before, I want to talk a bit more about Scott Matthews’ column.  I want to talk specifically about the article, but I also want to use it to frame broader aspects of the CL debate.  Though this time I will focus on several things I didn’t like about the article and his way of treating CLs, I don’t mean this to diminish anything that I said in my previous post.

To me, Matthews’ column has two threads that, while linked in some ways, should have been treated separately.  One is that the EFF’s campaign has not clearly stated its purposes and has said certain things that don’t match up with past principles.  Another is why CLs in particular are not consistent with the EFF’s principles and thus the EFF should provide far more extensive details before proposing them.

The first point, I think, is a far more important and legitimate point. Indeed, given Scott’s follow-up letter, I think he also meant this to be his more important point, but it got buried under a lengthy, specific criticisms of CLs.

Certainly, CLs could invade privacy, and I suppose the free speech limitations Matthews imagines are possible [Footnote: However, I generally agree with Aaron Mandel’s criticism and Jason Schultz’s rebuttal of Matthews’ argument here]. What strikes me is the repeated declaration that these problems are “inevitable” – as if the EFF were proposing and supporting systems that will lead to these negative consequences. Or that the EFF should not be proposing any system because, no matter how privacy protective and free speech supportive the proposal is, Congress will inevitably tweak it to have these negative consequences.

Blaming the EFF for what Congress might do is wholly unfair. Surely, were Congress to consider a system with the free speech or privacy implications that Matthews outlines, the EFF would oppose it. Matthews wrongly construes these implications as “inevitable” and thus inherent in CLs themselves, when, in truth, one can oppose his speculative implementation of CLs without opposing CLs in general. Should the EFF also be blamed for the enactment and continuing support for the DMCA’s subpoena provision because that was an “inevitability” of defending P2P providers?

Matthews desire for details has more merit, but part of it comes from the wrong angle. The tone and substance in both his original article and the follow-up implies that the EFF shouldn’t even come forward with this plan until they have all the nitty-gritty details worked out. (Footnote: the first piece seems to imply that these details do not exist, stating conclusively: “The EFF and aligned academics blunder when they trade privacy and free speech for piracy and free music.” But, given Matthews’ follow-up, I doubt he actually believed that.)

I don’t think the EFF needs to have everything exhaustively figured out. First, several academics are working on different versions of this policy proposal, and it is reasonable to believe that the EFF would be content with any one of them. Second, while these proposals differ on the specifics, all of them propose some way to deal with the problems Matthews and others have cited. The EFF doesn’t need to, at present, exhaustively prove that a particular version is sufficiently protective. Third, the EFF can reasonably want to negotiate, both with private groups and in Congress, about the details – what they’re pushing is an overall framework to get it started.

Finally, there are practical advantages to staying away from the details right now. As SethF points out, the complexities of the copyfight do not “fit in a press release.” To succeed, the EFF must get the general public on board and that often means oversimplifying.

It also means, to some extent, the EFF has to use populism to its advantage. As Professor Solum has discussed, current “copynorms” treat file-sharing as perfectly legit and the RIAA’s lawsuits and proscription of file-sharing as unfair. Congress’ or the RIAA’s telling people that their norms must be corrected by law seems, to some, paternalistic.  Thus, the EFF speaks of this copyfight as “RIAA v. The People”, and condemns the RIAA lawsuits in very general terms as an attack on “ordinary Americans” and “the public.” The voices of 60 million American file-sharers should not be ignored. Broad condemnations and simple policy statements work best here, for the rhetoric gets to the heart of the matter for many people – it provokes sufficient emotional response to get the petition signatures the EFF needs.

But it comes at some cost. If the EFF exclusively speaks in terms of populism, they’ll lose many who see that as an invalid or incomplete principle for change. Even though the EFF isn’t supporting CLs simply because of populist sentiments, the EFF’s rhetoric makes it seem that way to some. Or, at the very least, simplifying policy statements to appeal to people on this basis alone renders them confusing or overbroad. For instance, I took issue with the broad language of the petition because it seemed to say that all lawsuits are condemnable. (Footnote: whether you discuss this in terms of  “bad faith” or not is beside the point. One could call it disingenous, or misleading, or unprincipled, or inconsistent, [added:] or perhaps just unclear. In any case, many will believe that the EFF is acting improperly).

Here’s where Scott Matthews’ first thread – that the EFF’s campaign has not clearly stated its purposes and has said certain things that don’t match up with past principles – does matter, as I discussed in my other post.  The broader questions – what is the EFF’s goal, what would they be content with, and what principles underlie those choices – will remain important.  The oversimplifying and populist sentiments can help get this campaign off the ground, but I doubt it’s sufficient to convince anyone of the need for change.

And, to some extent, providing and discussing more (not necessarily all) specific details remains important, too; like I said, that criticism has some merit. If the EFF will only be content with a CL, it is useful to know what they mean by a CL and to start educating people more about what that entails specifically. If the EFF is content with a range of solutions, defining what sort of things any solution would need to do would be helpful. However, providing all the nitty-gritty specifics of each plan is a lesser concern for the immediate future.

I do want to stress, though, that there are certain discussions of details that I specifically feel do not need to occur.

For instance, if we’re discussing how CLs can be made more privacy protective, and someone assumes that the neither the government nor a private organization can be trusted with this information in any way, then there’s really no discussion about details to be had. No matter what legal and technical solutions anyone proposes, the other person won’t be content.  I’m not saying that it’s wholly unreasonable to reject CLs because you don’t trust the government collecting this sort of information, but it is unreasonable to have a discussion about the details of CLs if you’re opposed to them on absolute terms.

I also would like to caution against picking apart the CLs simply to find holes. Saying, “see, this has privacy implications” is important, but I’m not sure it’s grounds for rejecting CLs and opposing all those who support it. It’s grounds for nervousness, it’s grounds for asking and looking for a solution. But dialogue will be ruined if we focus solely on what we don’t like about any given proposal.

The sentiment of Ernest’s final paragraph in his “public domain lottery” post exemplifies what I see as a better way of starting a dialogue:

“[E]ven if the result [of some part of a proposal] is perverse, it might not be all that bad in the greater scheme of things. The benefits of a particular policy might outweigh its flaws. It might even be possible to rework the law (or social practice) so that such scenarios would be less likely. Still, it is the job of everyone in this debate over compulsory licensing to look deeply at the proposals and consider what the various ramifications will be, not simply how do we collect and distribute the money.”

Filed by Derek Slater at 3:44 pm under Big Ideas
2 Comments

My mom sent me this Robert X. Cringely column from Infoworld. Of interest:

“The owner of an unnamed online adult video store says a DVD licensing group is trying ‘to SCO’ him. Attorneys for the DVD6C Licensing Agency (which includes AOL Time Warner, IBM, and Toshiba) have demanded proof that the discs he sells are covered under its DVD licensing agreement. Apparently the attorneys couldn’t reach the makers of the videos, so they’re going after the retailer instead, demanding royalties of 5 cents per disc. Sounds like the corporate types are trying to grab a piece of the action.”

It’s crazy enough that (as I was told recently) you’re strictly liable for distributing infringing content. But you’re also in violation of a license that you weren’t a party to?  Does that hold any legal water? And would that mean that, even if you were selling non-infringing content, the DVD6C can at any time ask you to prove that it was also properly licensed?

Filed by Derek Slater at 3:20 pm under General news
Comments Off on DVD Licensing and SCO as a Verb

Citing “vigorous online debate of this issue” (link mine) and quoting both Aaron Swartz and Eugene Volokh, Professor Fisher has updated his proposal to include a discussion of how to counteract cheating. Rather than relying solely on counting downloads, he suggests using automated censuses akin to Nielsen ratings.  Read it, and consider the trade-off between highler likehood of catching cheaters with added privacy concerns and expense.

Filed by Derek Slater at 7:10 pm under General news
Comments Off on Fisher on Preventing Cheating in CLs

I’m not asking the questions I did below because I’ve concluded that the EFF is doing the wrong thing, or because I think the EFF doesn’t have answers to those questions. I’m asking the questions because I think there ARE answers that could be made more clear.

Like I said, I appreciate what the EFF’s doing. I like the idea of getting a CL on the table because I think P2P sharing isn’t going to go away; that DRM is a poor solution; that we will inevitably lead to greater regulation of technology if we don’t consider alternate solutions; and that the lawsuits are a less than optimal way to deal with the problem, levying out of proportion damages on random people without necessarily leading to any deterrence (although, if the lawsuits were to be a successful deterrent and we all were to live happily ever after with no DRM and great digital music services and such, then I’d be more content).

For the most part, my criticisms come from two perspectives. First, the perspective of an observer who, without being totally illogical, could think what the EFF’s doing is unprincipled or improper. Second, my general perspective, which is that addressing the complexities of the campaign in a clearer way would make the campaign successful.  In some cases, I’m more in-between – it’s not that I see what they’re doing is unprincipled, but I can’t understand precisely where they’re going with the campaign all the time.

I’m trying to put all those perspectives on the table to start a dialogue, to try to get answers, to try to learn more. I’m asking the questions because I’m interested in seeing the EFF succeed, not because I’ve concluded that they’re wrong or that they should fail.

If you’ve got questions too, let’s continue to make this a dialogue by talking about them, blogging about them, and contacting the EFF.

Filed by Derek Slater at 12:55 pm under General news
Comments Off on To Be Clear…

[slightly updated 9/19, 9:45 AM] [also, clarified with this post.] Check out this AP report on the Digital Media Conference.  When discussing CLs, it doesn’t make clear that that would lead to a repeal of significant parts of copyright protection. In any case, see this key section:

“‘Are you seriously considering the [government] regulation of artists?’ asked John P. Barlow, a Grateful Dead lyricist and a co-founder of the Electronic Frontier Foundation. ‘That is so Orwellian. I’m astonished this is even on the screen.'”

I was hoping this would get quoted somewhere so that I could discuss it (what with the non-attribution policy).  The EFF’s not simply asking Congress to hold hearings about a purely voluntary, private compulsory license system – that’s a potential solution, but they’re asking the government to consider intervention in some form. Otherwise, what does Congress have to do with it?  Remember, “If we all band together and stand up for our rights, we can change the law.” It’s unlikely that they mean file-sharing will be made legal without any further government involvement.

So, does this Barlow quote illustrate dissent in the ranks? Or perhaps an inability to keep the message clear and consistent?

I think it’s the latter and indicative of a larger problem the EFF has right now. The EFF’s “Let the Music Play” campaign is a significant shift in the way they’ve approached P2P file-sharing. Before, they repeated: sue the infringer, not the technology creator. Sure, they did mention compulsories and such. Even so, they encouraged lawsuits as an alternative to suing the P2P services themselves.  They kept themselves as far as possible away from explicitly or implicitly supporting infringing file-sharing.

Regardless of what the EFF’s actual stance was then, a reasonable observer could conclude that the EFF’s bluff got called, and now they’re crying foul. From this perspective, beneath the EFF’s supposedly principled response to the suits against technology creators was really just a desire to protect infringing file-sharing. This new campaign looks even less principled if you take into account how the EFF has generally focused more on repealing various copyright legislation and keeping Congress out of things, rather than proposing affirmative legislative proposals themselves. Most people think of the EFF philosophically as somewhere closer to that Barlow quote’s libertarian undertones (obviously, think of John Gilmore here, too). One could still argue that this perspective of the EFF is inaccurate, but I do think the case can be made. 

In any case, even though I see a shift (not a wholly unprincipled reversal of positions, but definitely a change), I appreciate it because I think they should have been pushing for exploration of alternative legislative solutions much earlier. (I had mentioned this in the trusted computing context – I don’t necessarily agree with the particular contextual details of what I said in this post, but I do still hold the overall message about EFF policymaking). At the same time, I do understand why someone would be concerned that the EFF is acting in “bad faith” without consistent principles.

This concern is exacerbated by the EFF’s manner of condemning the RIAA’s lawsuits. As we discussed last week, condemning all lawsuits as an outrageous “attack” on “the public” seems peculiar. Why these lawsuits and not others? What lawsuits would be legitimate?

[added:] I understand that there are practical reasons why the EFF waited for the RIAA’s lawsuits to launch this campaign –   the argument becomes much easier to make to the public. Imagine the EFF launching this campaign when Napster was on its way out; few would have bought into it because there was still enough reason to be optimistic about how the music industry would deal with file-sharing. But those factors don’t really explain the underlying reasons and goals behind “Let the Music Play.”

The EFF needs to provide further details about this new campaign. Most importantly, what is the EFF ultimately seeking? What would they be content with and what principles underlie that choice?  Are they only content with a CL? If so, what are the details of this plan? Or (more likely), if there are a range of potential solutions, could a potential solution simply be a digital music market without these lawsuits? Would the EFF be happy if digital music services were so good that no one uses P2P? What if, to get there, the RIAA has to sue just these 261 people? What if it were only 50 people? Or 5? Would that make a difference? If digital music services had lower prices and lacked DRM, would these lawsuits have more merit? [added:] Is this all just about price points?

Without further explanation, the EFF will weaken its position, leaving itself open to further criticisms like those made by Scott Matthews in his recent Salon piece. At the very least, as long as someone like Barlow is deriding any government intervention while the EFF begs Congress for attention, they’re going to have more trouble than they need.

(Or perhaps these rhetorical problems will have no effect on the EFF’s target audience. The general public might not want a long explanation of why the EFF’s shifting to these principels, or how it’s before and now has been consistent, or exactly how the CL will work. Most people just plain hate the lawsuits, so that’s what the EFF’s appealing to. If so, that has it’s own philosophical problems, but it might be practically beneficial.)

See Mary’s piece from last week for more along these lines.

I might get back to these points a little later, because I meant to talk about them in relation to the Scott Matthews piece. The piece has this overall feeling about the EFF’s “bad faith,” but that gets buried under his specific criticisms of CLs.  In some ways, I think that the general feeling of uncertainty regarding where the EFF’s going was a far better point than Scott’s CL-specific criticisms. I discussed this with Scott via email this week, and I want to discuss a bit more about where he’s coming from and how I view his article. In any case, that will have to wait for another post.

Filed by Derek Slater at 1:37 am under General news
7 Comments

Today, the Berkman Center and GartnerG2 hosted “Digital Media in Cyberspace: The Legislation and Business Effects“, a summit that grew out of the groups’ joint research. (That research, btw, is still going strong. When I can tell you, I’ll have more details on the exciting directions the project is about to take.)

I’m a bit exhausted and overwhelmed. There was a lot to digest, so it’ll take me some time to get it all out (aside: I wasn’t able to blog it because of a malfunctioning Palm and a no-attribution/off-the-record policy. However, Matt was there, scribing away, so expect to see something from him soon.)

For now, some brief notes:

Let me get the most unfortunate info out of the way: both Cary Sherman and Fritz Attaway did not attend because of Hurricane Isabel – they didn’t want to get stuck in Boston and then miss some meeting in DC. People did a good job of filling their shoes, so it wasn’t a horrible loss. But, it was a bit of a bummer.

Now, onto the good stuff: There was an amazing, diverse assortment of speakers, both in the audience and on stage. The whole event was very interactive, with plenty of time for questions, dialogue, and debate.  We got a lot on the table from a lot of different perspectives.

As the scenarios were laid out, I was both encouraged and surprised by the audience’s confusion and uncertainty.  Many were confused by the particulars of certain plans, particularly the public utility scenario which people had trouble connecting to the existing compulsory licenses in 17 USC 114 and ASCAP’s/BMI’s antitrust consent decrees.  I also had the feeling that there was an overall, pervasive uncertainty regarding what sort of business and legal regimes will work. Sure, people made arguments with strong conviction, but even then they were far better at saying what they didn’t like rather than what they did. For example, many people suggested that taking no legal action would be good, because the music industry should simply die out or suffer from some piracy like it always has or change its business model in some more comprehensive way – but the answer of precisely how these shifts would happen was fairly elusive.

Why was I surprised? Because I was in a room full of top tech and media biz execs.

Why was I encouraged? Because if no one’s made up their minds yet, that means that there’s still room for people to consider many possibilities. That’s a solid way to start a conference.

And, luckily, that theme – of a future open to many possibilities – ran throughout much of the day. It was in what I found to be the most interesting line of discussion, which revolved around defining what it would take to compete with free.  I hadn’t seen the full spectrum of opinions, from people in tech and media and law, in quite this way.  And I hadn’t expected that many, perhaps most, would say that you can compete with free to some extent.

Hearing all the views together reminded me that there’s still a lot left to try – a lot of room left for people to innovate and compete to figure out what’s best.  From a government compulsory regime, to a voluntary version of Fisher’s plan (which I’ll try to reflect on a bit more in the next few days, following up on Ernest’s post), to derivatives of the iTunes model, to the development of more robust DRM.

Although, most people didn’t seem to believe DRM was the answer. I didn’t go to the “breakout” session about an “effective DRM” scenario, but my sense from the speakers and the audience was that few really believed that DRM was the end all be all.

Nor did anyone really think that government intervention in the form of the CL regime was the right answer (neither was the public utility regime, which was dismissed a little too prematurely for my tastes). Professor Fisher’s CL proposal got a lot of play during the conference, and people took to it in varying degrees. But no one seemed to really be eager to go with it – it made everyone a little nervous.

So where did we end up? Well, right back where we started. As one of the speakers remarked, we were left with a wide range of choices that, potentially, could coexist together, some moreso than others.

Does that mean there’s no urgency to fix copyright? Of course there’s urgency. I still am incredibly worried about the situation quickly detiorating if the lawsuits don’t have any noticeable impact. I worry that we won’t seriously consider alternatives and that we’ll be stuck with this system or something much worse for far too long.

But I am encouraged to see that people are starting to seriously consider alternatives, that they are trying to come up with solutions, and that many future possibilities still exist. If anything, the RIAA’s lawsuits can be beneficial in that they’re getting these issues more out in the open. Not only is there debate in the biz and tech circles like I saw today at the conference, but there is debate in Washington and in the public at large.  With more people focusing on these issues, we have more ability to move forward.

Filed by Derek Slater at 8:26 pm under Big Ideas
Comments Off on Digital Media in Cyberspace: The Conference (Part 1)

Streamcast Networks (the owners of Morpheus) have submitted their brief, with the aid of the EFF.  Grokster has submitted its brief, too.  Choice quote from the latter:

“Appellants note, repeatedly, that Grokster includes a primitive ‘adult content’ filter that can block searches that contain words that are associated with such content a la George Carlin’s “seven dirty words” list, and then claim that this is evidence of the practicality of copyright filtering. This is akin to claiming that one’s ability to light a campfire is proof of one’s ability to build a nuclear power plant.”

Filed by Derek Slater at 6:25 pm under General news
Comments Off on Streamcast and Grokster File Brief in MGM v. Grokster

1.  Aaron Swartz suggests using anonymous, encrypted voting to distribute CL money, rather than allocating funds based on estimating actual usage. His proposal isn’t entirely unique.  Professor Fisher notes two similar ideas on pages 55-60 of his CL regime: the Blur/Banff proposal and Peter Eckersley’s “Virtual Market for Virtual Goods” paper. 

Fisher suggests that there would be deficiencies beyod the encouragement of purposely distorted voting (see Ernest), including increased hassle for users and higher likelihood of privacy violations. Frankly, I’m not quite sure how a website operator recording everything downloaded from his site and then reporting it to the Copyright Office is much different from my telling the Copyright Office directly what music I’m using using anonymous voting like Aaron describes. In both cases, the data would need to be recorded and reported anonymously, like Aaron explains; moreover, both cases cause concern inasmuch as we don’t trust others to record and report information anonymously.

2. In going over all these proposals, I began to think again about two different ways of doing the payout: one-payment-one-consumption using a fixed rate or payments according to relative consumption (that is, if you get 75% of the downloads, you get 75% of the tax revenue). The two are similar in that, if the fixed rate is based on 100 total payouts, and the total number of payouts is 100, and your work is downloaded 75 times, you’re going to get 75% of the money in either system.  However, I see two possible meaningful differences:

1. The latter method would not risk running the money well dry because every payout is related to the total tax revenue. If payout goes up with each consumption, you risk not having enough money to pay everyone.

2. The latter might deal with methods of gaming the system slightly better. Let’s say everyone gets 5 people to ballot stuff for him/her.  With a proportional payout system, this would not affect anyone’s payout. But, if you payout per consumption, then everyone gets five more payments than they ought to have received.  I noted this in the pho discussion, and Ernest voiced his doubts whether such “cancelling out” would occur a significant amount of the time.

Perhaps this is an unimportant aspect relative to the other complications of CLs, but I figured I’d throw it out there again. Any thoughts? Are these distinctions incorrect?

3.  Speaking of how you payout, I’m curious about how Aaron thinks that aspect will work.

If everyone has a different amount of certificate money, then does that alter how many downloads one can make? If so, wouldn’t that defeat the purpose of the CL?  If not, wouldn’t that be rather unfair to the artists? I pay in 2 dollars in taxes, download 1000 songs of Artist X (and nothing more), and give him my two dollars. Aaron pays in 20 dollars, downloads 5 songs of Artist Y (and nothing more), and gives him all 20 dollars.

On the other hand, if everyone would have the same amount of “certificate” money, then would this fairly pay out to artists?  Say I download 100 songs by Artist X and Aaron downloads 50. Because it’s all we download, we give all our certificate money to Artist X.  Now let’s say Ernest downloads 150 songs of Artist Y and gives all his money to him. In a one-payment-one-consumption model based on 300 consumptions, Artist X and Artist Y receive the same amount. In a proportion model, they receive the same amount. But in Aaron’s, Artist X receives twice as much as Artist Y.  Is that entirely fair? What if the respective downloads were 15, 5, and 300?  In the first two models, Artist X gets substantially less than Artist Y; in the latter, Artist X gets twice as much as Y. 

In sum, is it fair to totally ignore volume of consumption? (alternate question: is my math completely incorrect?)

Filed by Derek Slater at 3:31 pm under General news
1 Comment