A Copyfighter’s Musings

For my government sophomore tutorial, I was asked to read Robert Keohane and Joseph Nye’s article “Power and Interdependence in the Information Age.”  It was written in 1998, and its main focus is how the state and politics are still important in the information age.

When reading it, my first thought was: duh.  Reading Code and The Control Revolution eliminated most of the technoutopian/cyberlibertarian dreams from my head.  Professor Lessig makes abundantly clear in his books that both the politics of West Coast and East Coast code, particularly as they relate to each other.

Then I realized that Nye and Keohane were writing in a different time.  They were writing in a time when perhaps The Declaration was far more … realistic? relevant?  In any case, I get the sense reading this article that Nye and Keohane are trying to fend off extremists.  Their examples of state authority are not particularly well-chosen or clear.  They speed through a lot of topics pretty simplistically.  It reads like they’re just trying to eschew extremism rather than trying to prove precisely how important the state will be (or consider the merit of less extreme counterarguments).

And that got me thinking: it’s been five years since Keohane and Nye wrote this article. Just five years.  And the landscape of cyberlaw sounds completely different.  The issue is no longer whether the state and politics matter but how much space the government is leaving out of its control.  There’s been a huge shift in regulation.

I know that this isn’t a revolutionary revelation – I just happen to be feeling the strength of this change in the landscape very strongly right now.  Maybe it’s because I began to read this article when the Verizon decision  came down and finished it just before I read about Grokster/Morpheus.  We seem to be at a real tipping point.  Who knows what five more years might mean.

And that brought me to the realization of one reason I’m involved in the copyfight.  I can really feel everyday I work on this stuff that this issue is immediately relevant. That’s contrary to what most people say. Most people look at people spreading the Gospel of the Commons and say, “This isn’t universal healthcare – why do you guys care so much?”  Well, when I interact with many political issues, I don’t have the same sense of immediate relevancy or urgency.  That’s not to say that other issues aren’t as relevant or urgent – this is not really a matter of my reasoning or logic.  I’m talking about the feeling I have – I feel a certain connection to this that I don’t feel elsewhere.  It’s a feeling that things really are in the balance right now and that the next five years, five months, five weeks, really matter.  It’s a scary feeling sometimes. But it’s also the feeling that generates passion to keep working, keep trying to make sure the next five years go right.

Filed by Derek Slater at 4:42 pm under General news
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Donna reports that the Florida S-DMCA has passed unanimously.  Her tipster has a great summary of what’s wrong with the bill.

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Denise Howell makes a really interesting point about flooding P2P networks with bogus files:

“All of which is an admittedly roundabout (but hopefully useful) way of getting to the point: I’m surprised—and particularly in light of yesterday’s district court decision—I haven’t yet heard of a P2P network asserting trespass to chattels, nuisance or tortious interference as potential bases for barring the introduction of bogus files intended to meddle with the system and frustrate users. Standing would perhaps be an issue, since files being shared do not reside on network servers but rather on users’ computers, but it would seem pretty self-evident that those planting fake files seek deliberately to undermine the economics of the network.”

Now, I’ve got no clue about any of these legal doctrines – except for the fact that trespass to chattels is being used in the America Airlines website scraping case.  They probably wouldn’t apply to the recent spamming of KaZaA/Grokster users.  (Someone on Politech asks whether it even constitutes spamming.)

Update: Dan Gillmor points out that maybe these spammings did constitute a misuse of KaZaA’s service.

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Andrew Orlowski gripes about Apple’s DRM.  The bit about initializing computers/drives is important, but his criticizing the “How to Backup Your Purchased Songs Bit” is pretty silly.  Yes, it would make a whole lot more sense for Apple to sell a perpetual right to download a purchased song.  They currently don’t, and I think that’s a bad business decision.  But that’s not a knock against Apple’s DRM in this case.  The support article encourages making back-up copies – they’re trying to make sure users don’t lose their music collection in a hard drive crash.  Most online music services discourage making back-ups (through higher prices for burning, harsh DRM, etc.).

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…then we’ll really see if it has potential.  News.com has a report on how Apple could challenge MS digital media standards.  It also discusses important decisions that will have to be made when Apple migrates iTunes:

“The hard decision Apple will need to make is when to offer the music service to Windows users. The transition to Windows could be trickier than working inside the all-Apple system–and that could play into the decision of whether to use AAC again.

Apple will either need to rewrite its iTunes jukebox for the Windows platform, or adopt another company’s software. It will need to decide whether to allow its songs to be played on non-iPod MP3 players, and many players don’t yet support AAC.

Kay said such broad penetration is essential to help “establish the standards” that Apple is championing. Success in this area also could ensure that Microsoft could not at a later time use proprietary formats to choke the Mac of digital media content, which is seen as an important catalyst driving computer sales.”

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1.  The Supreme Court decided not to take up this important Internet jurisdiction case.  Interesting.

2.  So, let’s dig into the Apple iTunes extravanganza.  Like I said yesterday, I always find people like Steve Jobs pretty amusing in these situations.  Everything is a revolution. All of a sudden, I should be thankful that they’re offering me these rights which I’ve really had all along.  Though I know what he means in plain English, he’s speaking in Marketer-ese.

I still think the DRM isn’t perfect. I won’t be able to use my current MP3 player without burning an audio CD and then re-encoding it, degrading the sound in the process.  The “mix” in “rip, mix, and burn” has become “manage” – which (to me) means you can move your songs around but you can’t fiddle with the file’s actual contents itself (perhaps to edit or sample a song). 

That said, this DRM is still far better then what the music labels have been offering. It comes much closer to meeting my general expectations for using music. And, getting rid of the subscription fee is huge.  This really is a gigantic price drop compared to the other services. 

Does this mean that iTunes will launch a boom in legitimate music services?  Will people actually shift away from KaZaA (if that is even possible)?

For this shift to occur, I think iTunes will have to be so successful initially that the online music services seriously begin to compete with each other.  Particularly, we need to see competition over prices. Once prices hit a bottom, we could still see competition involving other offerings. For instance, I can imagine a time when Apple gives away (or heavily discounts) an iPod with every purchase of 20 songs.  Could we possibly see the day when a music service offers a CD-burner for free?  Maybe.  In any case, the key is competition so that legitimate music services become as attractive as possible. 

iTunes’ success is contingent on growing their music selection quickly.  People are probably only going to want to use one app to do all their downloading. If they can’t find a significant number of songs from iTunes, they won’t even bother buying what iTunes does offer.

3.  This Washington Post article had some pretty interesting bits.  Regarding Supernodes, I don’t think they have it right.  The Verizon decision does not really affect Supernodes.  They are not actually swapping files.  You could go after Supernodes for indexing (a la Napster), but, as I said yesterday, I’m not sure that that any individual Supernode makes a significant enough contribution to be liable.

Filed by Derek Slater at 11:03 am under General news
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Here’s the press release. My favorite part of the release is Steve Jobs saying, “The iTunes Music Store offers the revolutionary rights to burn an unlimited number of CDs for personal use.”  Funny, I don’t find that revolutionary at all, given that I’ve been burning copies of CDs for the last 5 years.

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Sometimes educating people about copyright makes the subject more confusing. (via Matt)

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1.  Friday began with Frank wondering whether Judge Bates understood or cared about how digitization has impacted copyright. I’ve often wondered if progress in the copyfight would require waiting for a generation of judges and politicians that grew up with widespread use of personal computers and the Internet.  We need judges who have enough technical understanding to tackle these tricky issues and who understand that the copyfight has broader implications for speech, privacy, and innovation.

Friday ended with a sign of hope.  Judge Wilson clearly gets it. He did his homework to understand the technical details and went beyond the RIAA and MPAA’s rhetoric.  He gave meaning to Judge Patel’s important qualification in Napster: “We are compelled to make a clear distinction between the architecture of the Napster system and Napster’s conduct in relation to the operational capacity of the system.” 

2.  It’s interesting to look at the Grokster/Morpheus decision in light of Fred von Lohmann’s P2P White Paper. In particular, I was interested in how the judge dismissed Grokster’s and Streamcast’s customer support (K) and update functionality (J) as grounds for liability.  Judge Wilson asserted that citing tech support in the abstract, without any specific connection to infringing activity, is not enough.  Furthermore, though he talked about the update feature only in terms of material contribution, it seems important in his vicarious liability judgment, too.  It does not matter that Grokster and Streamcast could alter their products to make them less susceptible to infringing activities.  The only issue in determing “right and ability to control” infringement is whether that ability actually exists within the products at hand.  It seems Judge Patel’s remark that “Napster…should bear the burden of policing its system within the limits of the system” (emphasis added) probably played a large role here.  With Napster, there clearly was an ability in the product to block access.  The software and Napster’s servers were inherently linked.  With Grokster and Morpheus, once the software is on someone’s computer, users’ activities are out of the companies’ hands. 

3.  I expect the RIAA/MPAA to hammer away at this distinction in the appeal.  They will focus on how easy it would be to alter the software and how providing the software itself is a way of controlling access.  They will assert that even if they’re not contributing to infringement, they certainly have an ability to control the infringement.

4.  Matt brings up how anti-P2P legislation could cover VCRs and photocopiers, creating more opponents to regulation. More likely, such legislation will mimic the S-DMCAs in focusing on “commuication service providers.”  The trick will be tailoring it as narrowly as possible to keep the tech companies from throwing a fit. Can this be done? I’m not so sure. You can’t go after search functionality alone, because that will sweep too broadly.  Perhaps the legislation would target only software that allows people to search others’ hard drives. (I’ll try to have more on this later.)

5.  What does all this mean for KaZaA?  Perhaps nothing at all.  Providing Supernodes certainly could be construed as creating the “site and facilities” for infringement.  At the same time, the court will have to take into account how even pulling the plug on these Supernodes will not deactivate the service.  If running a few Supernodes constitutes infringement, then wouldn’t simply connecting to Gnutella, without sharing any files, make someone liable?  From what Judge Wilson said, it sounds like a finding of liability requires having substantial control over how information is passed between users.

As far as vicarious infringement, the court will certainly have to take into account how KaZaA pulled the plug on Morpheus users.  They seem to have some ability to control access. 

5.  Also, what does this mean for the recent Aimster/Madster appeal?  Though I’m not clear on all the details, I doubt the Grokster/Morpheus ruling has much bearing here either. Madster’s central servers were (I think) pretty important to the system’s functioning.  I couldn’t tell from the briefs whether they actually had a central index, but, from earlier proceedings, it seems that unplugging their servers would have a substantial impact on the service.  Madster is also much more explicit about helping people share copyrighted works.

Furthermore, Judge Wilson compared Aimster to Napster, implying that his decision is supposed to be consistent with the Illinois district court’s ruling. So, for Wilson’s decision to matter for Aimster, the appeals court would probably have to find that the district court misinterpreted the case’s facts.

6.  I refuse to believe that Aimee Deep is 18.

Filed by Derek Slater at 11:54 am under General news
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As Donna has noted, Matt is currently king of the hill.  You can find basically everything you need there.  Frank‘s got the goods, too.

Sorry for my recent absence – nearing the end of this crazy semester, and there is far too much to do.  I’m trying to catch up on Grokster/Morpheus (and read the Aimster briefs people were pointing to) – will have something up tomorrow hopefully.  But, again, go to Matt and Frank and you should be all set.

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(Via Donna) “File-swapping tools are legal” – commentary to follow.

Summary judgement (pdf).

(Sorry won’t have anything more today – it’s a beautiful day in Cambridge before a storm, so I must venture outside.  But, I’ll have plenty to say tomorrow)

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Go here (via John Palfrey). See Furdlog for more details.

1.  I can’t honestly say whether the first part of the opinion, dealing with Article III questions, is right or wrong.  From what little I know about the subject, these issues are incredibly muddy, particularly when it comes to delineating “inferior offices” (see Article II Section 2 and how Justice Rehnquist construes the independent counsel in upholding Congress’ right to create it in Morrison v. Olson) and “ministerial” duties (I recall this coming up in a federal-state distinction in Printz v. US, which struck down part of the Brady Bill because it coopted state officials to administer a federal program). 

Along with citing Morrison repeatedly, the judge cites Mistretta, which upheld the use of federal judges on the US. Sentencing Commission to establish sentencing lengths.  Both those cases exhibit a functional rather than a formalistic approach to separation of powers.  Judge Bates seems to be taking a similar tact, allowing flexibility in how Congress creates these statutes.  Note how the judge slips in an Eldred reference to support this deference.

2.  I think Frank summed up the First Amendment and overbreadth parts pretty well.  Judge Bates does not buy that anyone’s privacy is really at stake.  His reasoning seems to imply the person definitely was engaging in “unprotected conduct” (pg 27-28).  When he begins to talk about safeguards in case the person was engaging in legal activity, he really overstates the requirements for copyright holders in 512.

Whether he’s right or wrong constitutionally speaking, I don’t know.  On a practical level, we all know that the RIAA and MPAA are in the power positions here.  It’s going to very difficult to check this subpoena power.  They will be able to pervasively monitor and identify users of P2P systems.

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Fred von Lohmann discusses CPTWG robustness requirements in lieu of Bunnie Huang’s hardware hacking presentation at O’Reilly.  Fred notes that a high level of robustness will likely add in high costs for consumer electronics. 

What I find amazing is that they’re talking about hardware hacking as not just cheap but easy.  I can’t believe Bunnie wrote a “X-Box Hacking for Dummies” book.  Can an average person learn how to hack that easily?  Or, rather, even if only experts know how to hack, is following others’ instructions of how to hardware hack that easy?

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Read this interview with Siva Vaidhyanathan along with pages 22-26 of Fisher’s first chapter.  While I don’t agree with everything Siva says, his general points are incredibly germane when considering compulsory licensing.  For one thing, he talks about the rigidity of letting machines (DRM) define permissible uses of media.  Second, he underlines what we could be taking advantage of in the digital era: the ability to “low[er] barrier of entry to creative processes” and spur “free and cheap access to cultural materials.”

Again, this comes back to the idea of finding an optimal solution.  It’s the place Fisher starts from in that first chapter – ignore laws and markets for the moment, and think what this technology can do.  We have to get back to practicalities at some point, but it’s important to recognize what new technology can do for us and then see where we stand.

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After going to Mary Hodder’s lovely collection of links from the compulsory licensing debate, I noticed that Professor Fisher has graced this blog with his presence.  He’s got several drafted chapters of his book online. Check it out.

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