5:07 PM
Woo! Indeed, woohoo! Bloggers (and file sharers) everywhere are celebrating yesterday's court ruling that Streamcast and Grokster are not liable for copyright infringement. Streamcast and Grokster are both companies producing file sharing programs. The MPAA and RIAA had sued both, claiming that they contributed to copyright infringement by allowing users to copy music and movie files. Judge Stephen Wilson ruled that they were not liable, comparing the technology to the VCR.
Other news:
A BBC editorial argues in favor of DRM technology and "a reasonable approach to laws". The author cites Linus Torvalds, creator of the Linux kernel (the basis of the Linux operating system), as not opposing DRM in Linux. Torvalds has previously indicated that unlike many other developers of open source software, his involvement is not politically motivated. Regardless, his voice still carries a lot of weight. The author of the article appears to have an incomplete understanding of the issues of copying technology, at least as I read it. In particular, he states that, "If I take the newly published William Gibson novel into my local Staples and ask them to photocopy it, they will take one look at the copyright notice and refuse my request." Is that actually true? I'm tempted to test it. Regardless, there's a difference between a Staples employee making a judgement about copying and software preventing copying that he doesn't recognize. (from Furdlog)
Slashdot has a story that raises a host of copyright issues. The story contributor has written several books that he has released under GPL-style licenses. Anyone may reprint the book, provided that they identify the author and include the license, so it is clear to anyone who purchases the book that they may also reprint it. Someone on eBay has been selling CD-ROMs which violate the license by not identifying the author and not including the license. The author is asking about the merits of using the DMCA to force eBay to identify the CD-ROM manufacturer. I believe the question indicates a misunderstanding of the DMCA. Under the DMCA, the author may contact eBay and request information on the seller, and eBay is compelled to provide it. Without the DMCA, the author could file a lawsuit, and if the judge believes the suit has merit, the judge can issue a subpeona to get the information from eBay. (If this interpretation is not correct, please let me know.) This distinction has been lost in many of the comments on Slashdot. This is also the issue in the Verizon case. In this particular case, the author has stated that he isn't interested in suing, which I think makes the question moot, but which I also think is a mistake. At the very least, he should bring the issue to the Free Software Foundation so that they can respond to it.
4:34 PM
Today's news:
CNET reports that a federal judge has given Verizon fourteen days to identify the file sharer it has been protecting. Verizon states that it will seek a stay of the order from the appeals court. Background: the DMCA gives copyright holders the power to compel Internet service providers to identify customers which the copyright holder asserts have violated copyright. Verizon has fought this, arguing that the law as written doesn't apply to files stored on the customer's computer, rather than on Verizon's computers, and that it violates due process. The judge in the case has ruled against Verizon on both claims.
Creative Commons has announced hundreds of books under Founder's Copyright. Creative Commons is an organization providing mechanisms for creators to limit the copyright protections on their works. Founder's Copyright voluntarily restricts the term of copyright to 14 or 28 years and then makes the book available under an attribution only license. The list includes books by Lawrence Lessig, Dan Gillmor, and Andy Kessler, and books published by O'Reilly. (from Copyfight)
Joho the Blog covered the panel on DRM at the Emerging Technology Conference. The major point appears to be that copyright discussions have been cast in terms of theft rather than rewarding creation. (from Copyfight)
Wow. James Love has an essay based on a workshop on peer to peer music distribution and compulsory licensing. This goes way beyond the level that I had been thinking about the issue. This is very important reading on the subject. (from Copyfight)
Ed Felten says that Florida will be voting on the Super DMCA today, April 25th.
The hearing in the 321 Studios case has been postponed. (from FurdLog)
CNET reports that Microsoft has licensed its CD copy protection technology to Macrovision. Users would be unable to copy the CDs, but the CD would come with Windows Media Player files that could be used only as the record label permitted. There's no indication of when US record labels might start using this. All the usual questions come up, such as, will it prevent people from copying the music (no) and will it inconvenience the customer to the point of harming sales (maybe)? (from FurdLog)
Recent posts in other blogs:
Copyfight has info on the Emerging Technology Conference. Donna has basic info, bloggers from Tuesday, and bloggers from Wednesday.
Derek Slater has an analysis of the Verizon ruling.
Derek talks about the costs of copy protection and the ease of defeating them.
Derek points to an interview with Siva Vaidhyanathan and an upcoming book by Terry Fisher. Fisher has put a draft of parts of his book, Promises to Keep: Technology, Law, and the Future of Entertainment, for anyone who is looking for more reading after Lessig's Future of Ideas. Derek emphasizes pages 22–26 of the draft first chapter, which discuss the potential of digital technology and the benefits for creativity that could arise. My response is that you can't ignore the costs of new technology, as laid out in pages 26–32. Prof. Fisher makes it clear that not everyone sees these costs equally, and I personally think he overstates some of them. But as I've said, what I think is less important than what the music and movie industries think, and industry is very worried about all of them. I should be clear. I don't support the industry's interests. But right now, the industry has the backing of the lawmakers, if not the public. Changing that is more important than proposing an ideal state of affairs.
Ed Felten has more on properly framing the debate. The question, he says, isn't whether the legal and technological response to copying is worse than copying. It's whether the laws and technologies are themselves good or bad.
Frank Field suggests some more light reading. The AEI-Brookings Joint Center has a paper on the conflict between the First Amendment and copyright law. I haven't slogged through this one yet, but I hope to soon.
Frank has a link to another copyright debate. The Heritage Foundation has a "lecture" on copyright. The title, "Pirates and Posses: The Battle over Digital Copyright," shows the bias of The Heritage Foundation. It includes more comments from Alec French, along with James Gattuso, Bruce Mehlman, Gary Shapiro, and James DeLong.
That wraps it up for now. More actual thoughts later.
6:47 PM
Does anyone else feel like there's so much going on that you can barely keep track of it all, let alone understand it? I have a pile of links that I've been sitting on. I've intended to include commentary on many of them, but the way things are going, I'm beginning to doubt I'll ever get to it. So here are the links I've collected.
The Simpsons were created as a result of copyright issues. LawMeme reports that Matt Groening, the show's creator, had originally planned to use characters from his newspaper comic, but was forced to create the Simpsons family to avoid copyright complications.
CNET reports that three students in Australia were arrested for copyright infringement. The article states that the students made music files available through a website, but it isn't clear whether the students hosted the files themselves or operated a system like the recently sued American students, who created lists of the files on other computers.
Glenn Fleishman wrote an article for The New York Times about the costs of putting Real World Adobe GoLive 6 online. I covered this a few weeks ago. There's a happy ending in this case. They barely avoided having any additional bandwidth usage fees.
Wired News reports on the keynote speech at the Emerging Technology Conference. The major theme was on the need to protect the ability to innovate technologically and to get politically active.
Reuters reports that EMI has signed deals with 20 European companies to make its music available online. The article does not indicate what file format the music will be in and it makes some strong assumptions about the effect of file sharing on the music industry.
The New York Times reports that the Justice Department supports the RIAA in its conflict with Verizon. The RIAA wants to sue a customer of Verizon Internet service for copyright infringement and is trying to force Verizon to identify the customer. Verizon has resisted revealing the customer. Now the Justice Department has stated that it believes Verizon should be compelled to reveal the customer's identity.
RealNetworks has purchased Listen.com. Listen.com operates Rhapsody, a music download service. RealNetworks is also an investor in MusicNet, another music download service.
The New York Times describes student responses to the lawsuits against college students offering file sharing services.
321 Studios lawsuit against the movie industry is starting Friday, according to Wired News. 321 Studios manufactures software that allows DVDs to be copied, and is suing to prove that this does not violate the DMCA.
News of the Super DMCA bills has made it to Wired News.
CNET reports that two record labels have sued Hummer Winblad Venture Partners because it invested in Napster. Universal and EMI claim that Hummer Winblad facilitated copyright infringement for financial benefit.
Hackers have retaliated against Madonna by hacking her website, according to CNET. This appears to be in response to her interference with file sharing of the "American Life" MP3.
Wired News reports that the software industry feels that its problems with copyright infringement are being neglected because of the attention paid to the entertainment industry. The article includes good balancing comments from Bradley Kuhn of the Free Software Foundation.
More mainstream press reports on the Super DMCA from eWeek and ZDnet. eWeek also has a more general story about bad computer laws.
E! Online reports on Madonna's "American Life" single. Madonna has planted files that look like the MP3 for "American Life" on the file sharing networks. When they play the file, instead of getting the song, listeners get Madonna swearing at them. The article reports that Madonna has sold 7,000 copies of the song online and it is number 37 on the singles charts.
LawMeme has a story on the failure of the eBook, along with a link to a proposed solution.
Lawrence Lessig talks about watermarks, which are important to potential implementations of compulsory licensing systems.
Aaron Swartz speaks up about the Super DMCA (already law in Illinois).
The New York Times had an article about Cryptography Research, a company proposing a new copy protection mechanism. I can't provide more details, because The Times is now requiring payment to access old (more than a week) articles. I've provided the link in the hope that it will magically work again someday, but until then I will refuse to pay.
LawMeme has information about the EFF's coverage of the Super DMCA.
Ed Felten points out that the RIAA could sue Google, using the same logic that led to them suing the college students for copyright infringement.
Copyfight reports on the effects of the Super DMCA on university researchers.
Wired News reports that National Geographic is fighting a copyright infringement claim. National Geographic has published CD-ROM compilations of its magazine. A freelance photographer has won a lawsuit against them claiming that reprinting his photographs on the CD-ROM is a copyright infringement. The court ruled that while microfiche is not a derivative work, CD-ROM is. If I remember correctly, The New York Times went through a similar fight a few years ago and lost there as well. Unfortunately, I don't have a reference handy.
Slashdot links to an article challenging the RIAA on their numbers on the effect of file sharing.
Slashdot has an article on a version of the DMCA making its way through the legislature in Germany.
Here's a good news story in the music industry. The Christian Science Monitor reports that independent record labels are doing better than ever. The article doesn't mention the impact of file sharing, except to say that "the labels target consumers — namely, adults — who are still willing to pay for their music, rather than download it for free." I see at least two untested assumptions in that statement.
Radiohead has a new album, Hail to the Thief, intended for release in June. An early version of the songs on the album is already available through file sharing. Business 2.0 covers the band's reaction.
Slate has an article about the continuing sales of public domain novels. In a nutshell, sales are higher than you would expect, and publishers are making lots of money on them, despite competing with other publishers releasing exactly the same books.
Slashdot has info about the letter the president of Michigan Technological University sent to the RIAA. One of the four students sued by the RIAA for copyright infringement attends MTU. The president says "We have cooperated fully with the RIAA, but in recent months, have not seen the same from your organization." The RIAA is dependent on universities to act as their enforcers, but is in danger of turning the universities against the RIAA.
Slashdot reports that a man convicted of selling mod chips for the XBox has been sentenced to five months imprisonment. Mod chips allow users to do things that game consoles were not designed to do. Most often this includes playing games from other countries and playing copies of games.
An op-ed from April 3rd on CNET advocated compulsory licensing as a solution to file sharing. I'm not sure his proposal is entirely thought out, but it's clear that the popularity of compulsory licensing is rising.
Alan Greenspan is asking questions about the economic impact of intellectual property law. See Slashdot for commentary.
Rolling Stone reports that the White Stripes may have violated copyright with their song "The Union Forever." The song derives its lyrics from dialog in Citizen Kane. Warner Bros., which controls Citizen Kane, is "reviewing the matter." I have to note the conflict the movie created when it was first released, because of the similarity of its story to the life of William Randolph Hearst.
LawMeme has a story on the intersection between copyright law and answering machine messages. If someone leaves a message on your machine, and you incorporate the recorded message in a song, are you violating the caller's copyright?
Wired News covers Revolution OS, a documentary movie about free software and the open source movement. The film's creator released the movie on DVD without the standard DVD copy protection, in the spirit of the open source movement.
CNET has an interview with Pamela Horovitz, the president of the National Association of Recording Merchandisers. She talks about the pressure that music retailers are feeling as a result of (authorized and unauthorized) music distribution on the Internet.
Slashdot reports on a bill that would require clear labeling on software, music, and movies with copy protection. The bill is sponsored by Senator Ron Wyden of Oregon.
Lawrence Lessig reports that Mexico plans to destroy the public domain. The government would have the power to tax anything in the public domain, which obviously is different thinking about the public domain than we're used to.
I seem to have misplaced a link to a story about the music industry and public domain recordings in Europe. Recordings are entering the public domain there, unlike here, and some record labels are remastering and rereleasing the recordings on CD. Other record labels are then copying and selling the remastered CDs. Record labels are becoming reluctant to pay for high quality remastering of public domain recordings as a result.
I may have more to say on some of these eventually, but given that the oldest articles in this collection have been sitting around for a month, I decided I better get the links out first and the commentary later.
2:00 PM
Lawrence Lessig and Derek Slater have responded to my post last week about compulsory licenses. They both have thought provoking things to say and I want to respond to both of them.
I raised the question of what compulsory licensing is good for. Lessig's answer is that "new technologies for distributing content have created the need for a compulsory license." He provides a link to a PDF of two chapters from his book The Future of Ideas which discuss compulsory licensing in more detail. This is dense reading, but definitely worth the time. It covers a wide range of issues (I suspect that the book as a whole may have already said everything I have to say, and with better references) including a history of compulsory licenses, which is just what I was looking for.
As described on pages 8–10 of Lessig's PDF, one hundred years ago, the music industry consisted of sheet music publishers. Sheet music was protected by copyright, and the publishers produced music without fear that other publishers would start selling the same music. Around 1902, that changed. The invention of the player piano led to a million piano rolls being sold. Many of these piano rolls were performances of copyrighted sheet music. The Supreme Court held that the piano rolls were not a copy of the sheet music, and therefore were not infringing on the copyright of the sheet music publishers. The sheet music publishers turned to Congress, which in 1909 revised the copyright law and introduced compulsory licenses. Anyone could make a recording of an existing song, provided that they paid two cents per published copy to the copyright holder of the song. At the time, this mostly controlled piano rolls, but the law has extended intact to the present and controls CDs. Under this law, a band cannot prevent another band from recording a cover of a song, provided that the new band pays the compulsory licensing fee for publishing the recording.
There are some obvious parallels between this and the music industry's response to MP3s, but there are also some important differences. The first difference is that the courts had favored the piano roll manufacturers prior to the intervention of Congress, while the courts have favored the music industry with MP3s. The second is that relatively few companies produced piano rolls, and potentially every individual can distribute MP3s. I will discuss these further when I get to Derek's post.
The many citations in the PDF indicate that compulsory licenses have been discussed in great depth in the past, and we are merely continuing the discussion (and, I suspect, repeating what has already been said before). The other real benefit of Lessig's post is the reminder that there are a variety of possible compulsory licensing schemes, each with their own merits. I realized that in my initial response to von Lohmann's article, I was mixing my thoughts about compulsory licensing in general with my thoughts about his specific proposed mechanism. Lessig reminded me that these are two different questions, and whether compulsory licensing is a good solution should be addressed separately from which licensing approach would be best.
On to Derek's post. He says
Matt's right from a policy perspective that it is impractical to only focus on encouraging music production without looking at how the record companies will be affected. The record companies will fight back if they're losing out. But, I'm not sure how far we can take this line of reasoning. Right now, the debate centers too much around protecting the record companies and not enough around protecting music production and distribution.
I agree with that as far as it goes, but I don't think it goes far enough. What I want is an ideal world which makes optimal use of new technologies to maximize music creation and distribution. But what I want more is a way to get as close as we can to that, starting from where we are today. As far as I know, the music industry isn't participating in this discussion of compulsory licensing. This is where the difference between piano rolls and MP3s shows itself. I'm doubtful that we can change the law without the music industry on our side. So far, proponents of weak copyright haven't demonstrated that they can prevent bad laws from being passed, let alone get good laws passed. I think any discussion of compulsory licensing has to be made with an eye toward what the music industry will accept, because while theories about how to resolve this conflict are good, what matters is the practice.
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