Recent events at Ain't It Cool News merit a close look. Ain't It Cool News (AICN) is a movie news and reviews website with an active readership which takes full advantage of the site's discussion boards. An unfinished version of The Hulk was leaked onto the file sharing services about a week ago, and many readers of AICN downloaded the movie and posted reviews. The response says a lot about attitudes about file sharing.
Moriarty, one of the principle writers on AICN, wrote a scathing criticism of the downloaders titled "About That HULK Workprint You All Claim To Be 'Reviewing'..." which starts with the statement "Shame on you. All of you." and proceeds to get more harsh and judgemental from there. This article generated a predictable firestorm of criticism in response. Links to the responses appear at the end of the article. As a warning to anyone who is thinking of reading them, they are both crude and vitriolic.
In addition to righteous indignation, streams of profanity, and justifications based on the supposed immorality of the movie industry, there were a few comments criticizing Moriarty for hypocrisy. After all, AICN is known for getting early access to movies and scripts and publishing reviews and commentary based on that access. One example, which is not all that atypical, is AICN's review of Star Wars: Attack of the Clones, based on an unfinished version of the movie shown by a LucasFilm employee. The leaked film led to the arrest of the LucasFilm employee.
Harry Knowles, the creator of AICN, wrote a response titled "What's wrong with downloading a movie early?" Harry states that as a journalist, he is entitled to early access to movies, and although he may have seen Attack of the Clones months early, he never had a copy of the movie, never distributed a copy of the movie, and never wanted a copy of the movie. He goes on to list the positive and negative consequences of copying movies over the Internet. Without coming down on one side or the other on that subject, he goes on to criticize reviews of the unfinished version, especially since, as a reviewer, he has already seen the finished movie.
The criticism continued, and Moriarty apologized for the first article. He went on to point out the major similarity between himself and people who download copies of movies, which is that they are movie lovers. He acknowledged that the first post was sermonizing and talked down to the readers of the site. He stood by his belief that file sharing is wrong and is a serious concern of the movie industry, but he recognized the impulse to do it and admitted that he has downloaded movies and music himself.
The thing that got my attention is the moral ambiguity. He went from raging about file sharing as wrong and harmful to movies to admitting that while he still believes that, he's as guilty as anyone else, and for the same reason as anyone else. Enthusiasm for what he could have outweighs his sense of right and wrong.
This ambiguity, reflecting what people in the real world think and how they act, is quite a contrast from the Newshour: Forum — Copyright Conundrum. The forum features questions about online music and copyright with answers by Matt Oppenheim of the RIAA and Lawrence Lessig. The questions and answers are worth reading and there are significant quotes to be pulled out by both sides, but there's no moral ambiguity.
Lawrence Lessig and Matt Oppenheim are presented as experts, so to expect an answer of the form "I don't know. What do you think?" might be a bit much. Oppenheim sticks inflexibly to the line that copyright is the way it is to benefit musicians and the correct response to new technology is to increase the scope of copyright. Lessig's statements, which emphasize the rights of customers to use what they have purchased, are equally inflexible. Lessig doesn't address the harm to musicians that file sharing might create and Oppenheim refuses to acknowledge that reducing copyright might possibly benefit anyone.
Here in the real world, I have to say that both perspectives look inadequate. File sharing could lead to the collapse of the music industry as we now know it. (It may not, but I need to recognize that it could.) Whether that would be good or bad for music, musicians, and customers could be debated, but it obviously would result in massive turmoil and I think wariness is justified. On the other hand, as a music fan, I expect to freely copy my music for my own use and I resent technological and legal attempts to prevent me from doing so.
Out of these three perspectives, Moriarty's is the important one. At this stage, there are more questions than answers and our actions will have unknown effects. It's better to face and struggle with that uncertainty than to deny that it exists.
Dave Winer organized a dinner for bloggers last night in Cambridge. I figured this was too good an opportunity to meet some "name-brand" bloggers to pass up, so I went despite doubts that I might feel out of place. The rest of this post will consist mostly of narcissistic name-dropping as I describe the evening.
As things worked out, I totally lucked out. I ran into Doc Searls on the way into the restaurant. I introduced myself, knowing full well that there was no reason why he should know me, and the woman he was with promptly introduced herself as Denise Howell. I was quite gratified that she was as interested in me as I was in her.
I don't think I could have done better than to have sat with the two of them during dinner. Other bloggers I met included David Weinberger, Christopher Lydon, and Dave Winer, among others whose names I didn't get. We talked about a wide range of subjects, including blogging (of course), ICANN, RageBoy, and radio for starters.
When I told Doc Searls that I have been focusing on copyright on my blog, he raised a point which bears repeating. The major media corporations are defining the terms of the debate. When copyright is property and infringement is theft, we are already behind in making our case. He pointed to Lawrence Lessig's efforts to stake out the public domain and the commons as a significant move in changing the terms of the discussion.
Denise Howell and I talked about law. As a lawyer, she had insights on law school and on the experience of being a copyright lawyer working at the appellate level that I'm still thinking over. Her interest in what I'm doing with this blog is clearly a sign that I'm doing something right.
I definitely enjoyed the evening (although the bill for dinner turned out to be steeper than I expected) and I have to say that it was pretty cool to meet and chat with these seminal bloggers who were influential in my interest in blogging in the first place. It was a pleasure, it was thought provoking, and I hope to have similar opportunities in the future.
Trying to catch up on developments in copyright during the past week, I remembered why I started covering events on a daily basis. A lot has been going on. For the sake of my sanity, I'm limiting myself to news in the legal arena this time around, but I'm including all three branches of government, each of which has been active. In other news, I'm getting involved in another project, unrelated to copyright, which I expect most readers will be interested in anyway. I'm not quite ready to start talking about it, so watch this space.
Madster appeal oral arguments
The lead off item has to be the Madster appeal. Madster is one of the multitude of file sharing services that have been sued by the music industry. Madster lost the first round and appealed. The briefs are available online, but apparently not with a fixed URL. The can be accessed through the Seventh Circuit Legal Brief System by searching for case number 02-4125. Oral arguments in the case were held Wednesday morning. The appeals court has made an audio file of the arguments available. The sound quality is pretty appalling and I had to download the file and change the extension to MP3 to play it. Aaron Swartz attended the hearing and posted his notes on his blog. A more detailed report of the hearing is available from Big City Blinking (from Lawrence Lessig).
Unfortunately, it appears that the lawyer speaking for Madster failed to present their side well. Hopefully the judges can come to an intelligent decision in spite of that weakness. Despite my criticisms of Madster's marketing practices, I think Madster is entitled to its day in court and recognize that this is a very important decision in demarking the relationship between copyright and technology.
The Betamax case is still the baseline for this issue. In that case, ultimately decided by the Supreme Court, VCRs were ruled to be a noninfringing technology despite the fact that they could be used to violate copyright. The standard the Supreme Court set out was that of "substantial noninfringing use." Although VCRs can be used to illegally duplicate copyrighted material, they have other potential uses which do not violate copyright and so are legal. All of the cases involving file sharing have looked back to this first ruling.
In the Napster ruling and the Madster district court ruling, defenses based on Betamax were utterly unsuccessful. The judges ruled, with some prejudice, that the programs were not covered by Betamax, did not have substantial noninfringing uses, and held the companies responsible for copyright infringement. Napster's case was still working through the court process when Napster went bankrupt.
The Grokster/Streamcast case was the first file sharing case to go the other way. The district court ruled in favor of the software, hinging the decision on the technical differences between the client/server software architecture of Napster and the peer-to-peer architecture of Grokster and Streamcast. The music industry has vowed to appeal the decision.
I'm less up on the technical grounding for Madster, but my impression is that the software lies between the technologies used by Grokster and Streamcast and the technology used by Napster. Whether or not Madster is found to be infringing by the appeals court depends both on the details of Madster's technology and how the existing law is applied to the technology.
I'm comfortable saying that the Madster's lawyer failed to pose a good defense for his technology. In particular, he failed to make the case that Madster was in fact used for substantial noninfringing uses. If Madster has any hope of winning, it lies in Judge Posner's line of questioning directed toward the music industry lawyer on contributory infringement. It may allow the appeals court to decide that Madster did not commit contributory infringement even though Madster failed to defend that claim itself.
Verizon reveals alleged file sharers
Verizon has identified four users of its Internet service who have been accused of sharing copyrighted files. The RIAA requested the information under the DMCA. Verizon had resisted identifying the users, arguing in court that the DMCA violates due process and is being misapplied in this case. Verizon is appealing the lower court decision in the case, but the appeals court refused to stay the order. Verizon has stated that it intends to continue to fight.
There are two important legal issues here. The first is the due process concern. Under the law prior to the passage of the DMCA, an aggrieved party like the RIAA can file a lawsuit against a John Doe when they do not have the identity of a subscriber to a service. If they can convince the judge that they have sufficient evidence of infringement, the judge can subpeona the service provider (in this case, Verizon) for the identity of the subscribers.
The DMCA lowers the standard under which the RIAA can demand the identity of subscribers. Let's be clear. Copyright infringement is a crime, and leaving aside the question of whether copyright law is reasonable, copyright holders should be able to pursue infringers. The problem here is in the reduced standard. While the RIAA has an interest in defending itself, it has been known to make mistakes. Given the massive disparity in power between the recording industry and individuals, the harm to individuals who are erroneously accused of copyright infringement could be overwhelming. Overzealous laws only seem like a good idea when they're not coming after you.
The second issue is more of a legal technicality. When the DMCA was passed, the presumption was that files would reside on a computer operated by the service provider. The rise of broadband Internet connections and file sharing software has meant that the files frequently reside on the subscriber's computer. Verizon unsuccessfully argued that the law as written should not apply in this case. I have an essay in me about the problem of the phrase "Internet service provider," but I shouldn't get into it now. Suffice it to say that that term is overly broad and is leading to legal confusion, and this case is a concrete example of that confusion.
New Streamcast lawsuit
The RIAA has filed a new lawsuit against Streamcast. A few weeks ago, the RIAA lost its lawsuit against Streamcast claiming copyright infringement. While the RIAA will be appealing, they've also launched a new lawsuit against Streamcast on the basis of a service which Streamcast never actually provided. At what point does a lawsuit cross the line between legitimate and harassing?
Napster legal fallout continues
EMI has joined the lawsuit against Bertelsmann because of Napster. Bertelsmann provided funding to Napster before it declared bankruptcy. EMI has joined the lawsuit, previously filed by Universal Music and music publishers, accusing Bertelsmann of vicarious infringement. The lawsuit alleges that Bertelsmann intended to profit as a result of Napster's infringing activity. As an outsider, I can note the irony in the fact that Bertelsmann is itself a record label, but probably none of the parties in the suit would appreciate it.
This lawsuit, and the related suit against Hummer Winblad, threaten to pierce the "corporate veil." One of the advantages of incorporating is to protect one group from the actions of another. In this case, Bertelsmann was able to take a partial ownership position in Napster but it was not harmed when Napster declared bankruptcy. Without that protection, Bertelsmann could have been liable for Napster's debts. Vicarious infringement, as it is being applied in these lawsuits, removes that protection.
Bertelsmann isn't being accused of direct copyright infringement. (Napster isn't even being accused of direct copyright infringement.) But because Bertelsmann intended to profit from Napster's business, and Napster's business has been found to have profited from the infringement of its users, Bertelsmann is now vulnerable. I have to wonder how far this will go. If they win here, will Universal and EMI go after the individual stockholders? After all, they intended to profit because of Bertelsmann's business, and Bertelsmann was profiting because of copyright infringement. What's the legal limit on how far this could go?
Motion to dismiss in DVD lawsuit
Companies which produce software which automatically skips sections of DVDs with "inappropriate" content have filed a motion to dismiss against a MPAA lawsuit. The MPAA argues that their movies are to be watched only as the director intended and the software violates copyright by editing the movie. The software companies argue that they are only automating what the viewer wants to do and are not actually editing the movie in any way. They are just controlling the playback. Copyright law recognizes an artist's right to integrity for visual art. The MPAA appears to be arguing for a similar right for movies.
Reflexively, I think viewers should be able to watch edited versions of movies and I would think the possibility of increased sales that this would create might actually get the MPAA's support. As has been established, the MPAA is more interested in control than profits. I also respect the artist's right of integrity, but I'm not sure how far the law should go in protecting that.
Bill to roll back parts of DMCA
Senator Sam Brownback has written legislation to undo parts of the DMCA. The major focus of the bill is on limiting DRM technology. The bill shares features with other recently introduced legislation, such as requiring that music, movies, and software that use copy protection be clearly labeled as having that protection. Congress is becoming more active in recognizing and responding to the harm of current law, and they need your support.
Radio streaming agreement
Derek Slater and I have gone back and forth on the question of "performance" as applied to the Internet. Streamed radio broadcasts pretty clearly qualify. Non-commercial broadcasters have come to an agreement with the recording industry on royalties for streaming. An agreement was mandated by the DMCA, but it's obviously taken a while to work out the details. The article is somewhat confused on the response to the new rules, saying everyone was pleased with the outcome but also saying that some broadcasters will be put out of business by the new terms. The new terms also place some restrictions on how frequently some music can be played.
Congressional hearing on new FCC rules
Wednesday morning the Senate held a hearing on the FCC's new media ownership rules, at which the five FCC commissioners testified. I watched the opening statements from the Senators and from the commissioners and I liked what I saw. Nearly everyone with the exception of the three commissioners who voted for the rule changes expressed opposition and concern about the new rules. The commissioners who voted for the change asserted that they were carrying out the Congressional mandate from the Telecommunications Act of 1996 and if they had not acted, there would be no ownership rules at all. These claims struck me as disingenuous at best. I wanted to provide a direct link to the video on the C-SPAN website, but C-SPAN is making things difficult. The best I can offer is C-SPAN's 108th Congress page, which provides a link to a video file of the hearing. Lisa Rein has put up a copy on her website. (from On Lisa Rein's Radar)
Spectrum allocation review
The Bush adminstration is reviewing radio frequency spectrum allocation and usage (from Lawrence Lessig). Wired News has an article on the subject. Like the FCC deregulation of media ownership, this is only loosely related to copyright issues, but it's vitally important. This is geeky, but I'm going to attempt to explain why you should care.
The FCC determines who can broadcast radio signals. Speaking non-technically, the FCC states that a particular television station, FM radio station, AM radio station, or cell phone company can broadcast from an antenna at a particular location, using a particular frequency range, and at a particular power. They then create a circle around the antenna and make sure that no one else can broadcast using that frequency range with an overlapping circle. This is to prevent interference. If two signals in the same frequency range were too close together, they would interfere with each other and neither signal would get through. This description may not be technically accurate, but I believe it is conceptually accurate.
This is a decent solution to the problem of interference, but it isn't perfect, as anyone who has been listening to the radio while driving has found when a signal from another station breaks in and it becomes impossible to listen to either station clearly. This also creates a situation of spectrum scarcity. There are a finite number of possible television stations, and the radio dial basically has radio stations jammed in as tightly as they will go. This also is the basis for cell phone spectrum auctions which the FCC has run.
The scarcity of spectrum created by this policy is getting worse as more users want to do more things with radio frequency broadcasts, so the Bush administration will be reexamining the policy. Hopefully they will learn something from wireless computer networking.
WiFi (or 802.11) computer networks use a range of spectrum that is essentially unregulated. This frequency range is used by cordless phones. Microwaves also generate interference in this range. The engineers who developed the WiFi technology adopted a completely different approach to solve the interference problem. Each WiFi transmitter can broadcast on any of a range of frequencies. Before broadcasting, the transmitter finds an open frequency and broadcasts on that frequency. (Again, this is a conceptual description, rather than a technical description.)
The net result is that in addition to the wireless network I use, I can detect two other wireless networks in my apartment, but we can all use our networks without interfering with each other. The implications of this are staggering. Conventional thinking is that the most effective way to broadcast is to have a single very powerful antenna with exclusive use of a frequency range. WiFi networks demonstrate that that is exactly backwards, and the way to get maximum frequency utilization is to have many low power antennas that all share the same frequency range.
This sort of technology could be applied to television and radio, with the consequence of turning the industry on its head. What it means to tune into a station would change radically, with the instant benefits that stations would never interfere with each other and the density of stations would actually increase.
Right now, you're either thinking "I don't get it" or "how can this be true?" Well, it is true, and it's important that you get it. When Lawrence Lessig isn't working on reining in copyright or opposing media consolidation, he's working on spectrum policy. Recent posts of his include a mention of an article in The Economist and a series of posts that ended in mid-March. He is (obviously) the reference I would point to first for more understanding of the subject.