4:22 PM
TeleRead relies on a paper to challenge the potential success of DRM and compulsory licensing. TeleRead concludes that the paper supports his arguments for voluntary payment schemes, but the paper doesn't let voluntary schemes off the hook either.
The paper sets out to lay out the basic questions that should be asked about payment schemes for copyright enforcement on the Internet. The issues are technical feasibility, legal enforcement, incentives to cheat, efficiency, impact on privacy and fair use, and flexibility. They then proceed to analyze various schemes, including various DRM schemes, compulsory licensing schemes, and voluntary schemes. The basic conclusion of the paper seems to be that every approach has major shortcomings measured against some or all of the concerns.
I have to say that this is pretty pessimistic, but it may be accurate. The Internet has created a problem with copyright enforcement for which there seem to be no good solutions. I realize that I've had a growing reflex to just throw out copyright entirely, at least for Internet distribution, but I can already hear the screams of the music and movie industries in response. After that, I don't know what to suggest.
1:49 AM
According to Gnutella News, the lawsuits have begun. I don't think I really have to say more than that. (from JD's New Media Musings)
1:34 AM
FurdLog points to a TechCentralStation article on file sharing. Frank writes the article off as to "get your blood moving" and using "rhetorical tricks," but I'm not quite so ready to dismiss it. In "Share and Share Alike?", William Adkinson appears to be seriously laying out an argument against file sharing, and I think it's only fair to take it seriously.
He starts by challenging the use of the word sharing. Like John Logie, he states that sharing implies giving something up. In support of that, he quotes Jane Ginsburg, a law professor at Columbia University and the daughter of Ruth Bader Ginsburg. I was disappointed to find that she has remarkably little presence on the web, which strikes me as a weakness for someone who's specialty is copyright law and who writes about Internet issues.
Anyway, that's not really the point. Instead of file sharers, Adkinson says we should use free riders. As he says, free riders enjoy "for free what is available only because paying customers are footing the bill." Free riders are evil because "it is purchases by paying customers that create the incentives for providing content." By implication, without these incentives to provide content, music will just disappear.
I realize that as I'm writing about it my objections to the article are getting stronger. What's with this "providing content" thing? When I buy a CD, I don't do it to receive content. I do it to listen to music. When Adkinson starts talking in terms of the music that I as a person care about and stops talking about the content that corporations are trying to force on me, I'll have more respect for him and take what he says more seriously.
Doc Searls has previously objected to the description of his blog as content. In his words, "producing 'content' is something I do on the john." I think John Logie is massively understating the problem with a lack of shared vocabulary in this discussion.
I've gotten way off topic. I wanted to challenge the claims about free riders. (Another vocabulary problem.) Are free riders really free riders (in the evil, value destroying sense)? I listen to music without paying for it constantly. I'm listening to music without paying for it right now. Admittedly, I did pay for the CD that it's on, but that's sitting in the other room while I'm listening to a copy on my computer. When I turn the radio on, I'm not paying anything. Again, the cost of advertising probably factors into the price of other products I buy, but that cost is built in regardless of whether I actually listen. The marginal cost of listening is zero. I seriously doubt that anyone thinks "I'd listen to the radio, but it makes other things I buy more expensive, so I better not."
When I go over to a friend's house, it's not uncommon to put some music on. Again, there's no possible way that I could be said to be paying to listen to that music. I hope I've made my point, because I'm tiring myself out. I can only imagine how you as the reader feel.
The point is that listening to music without paying for it doesn't in itself make someone a free rider (in an evil, music industry destroying sense). I'd hazard a guess that this comes back to information not being a consumable resource. Once again, it seems, the argument reduces to the claim that music is like physical property, which it is (still) not.
I'd have to admit to not being up on the economic theory behind free riders (more and more, I'm concluding that talking intelligently about copyright requires understanding everything else) so I poked around a bit using Google and I found a brief on free riders and public television. Surprisingly (or not), people donate to public television even when they don't have to, which is a general finding about free riders. Sure some people are free riders, but less than economic theory expects. The conclusion I draw is that to the extent that file sharers are free riders, they still aren't necessarily going to destroy the music industry.
I could go on, but I'd rather stop. Anyway, I'll summarize the article as defining the issue in a particular set of terms, and then finding that the situation reflects the assumptions built into those terms. Okay, okay. I do that too. The claim that my terms are better isn't much of a defense, but it's the one I'm going to use.
4:29 PM
John Logie has written an article challenging both sides in the fight over peer to peer file distribution for overblown language. He focuses on the movie and music industries use of war metaphors to describe peer to peer file distribution and observes that while that language may come naturally (Jack Valenti of the MPAA previously worked in the Johnson administration), it is clearly excessive.
Logie doesn't let the other side off the hook either. He notes that the term "file sharing", which readers may have noticed I am partial to, isn't really accurate either, in that sharing implies (he says) the loss of use by the sharer, and it also implies that the sharer has the right to share. Discussion of peer to peer services are clearly hung up over the radical disagreement in terminology by the two sides.
Logie suggests that coming to a common ground on language is a necessary first step to resolving the conflict between the two sides. He doesn't offer a common language, however. My reflex is to say that "file sharing" isn't as misrepresentative as he says, but Valenti would probably say the same thing about his war terminology. I experimented with "file distribution" in this post, but I suspect it includes an even stronger right to distribute than "sharing" does. I suppose the most accurate term is "file copying", but I'm dubious about how far that phrase would go toward establishing a common ground, even if everyone agreed to use it. (from GrepLaw)
3:14 PM
The book industry has become more hit driven. The good news is that authors are now earning six figures for first novels. The bad news is that novels which don't look like hits can't get published and if the novel doesn't sell, the author may never sell another manuscript. Responses run from shock from authors who cash in to panic from established midlist authors who are seeing their market niche vanishing.
You can probably guess my response. The book industry is following in the steps of the music industry and movie industry. As a result, copyright is no longer doing what it's intended to do. The economic justification for copyright is that writers won't write if publishers won't pay them, and publishers can't pay them if they can't publish books exclusively. Historically, this has given stable financial support to a range of authors who were guaranteed of making a living as long as they kept writing and publishing regularly. They wouldn't necessarily get rich, but they would be reasonably well off.
That's no longer true. The move to all or nothing, hit driven publishing takes away the writing lifestyle. If writers are less likely to be published and less likely to be able to make a living from writing, they have less reason to write. The changing economics of the publishing industry have taken away copyright's incentive to write. (from Eye Wash)
6:19 PM
The New York Times has an article on why copyright holders should not be able to prevent derivative works. That's not the title, of course. The title is "Plagiarism in Dylan, or a Cultural Collage" and the article is about phrases from the book Confessions of a Yakuza which show up in the song "Floater (Too Much to Ask)" by Bob Dylan.
The article is a great defense of weak copyright laws. From the article, "The hoopla over Love and Theft and Confessions of a Yakuza is a symptom of a growing misunderstanding about culture's ownership and evolution, a misunderstanding that has accelerated as humanity's oral tradition migrates to the Internet. Ideas aren't meant to be carved in stone and left inviolate; they're meant to stimulate the next idea and the next."
I would think that would be obvious, but apparently it isn't.
5:56 PM
Rageboy brings the distressing news that Ann Craig has cancer (not worksafe). Ann Craig rolled the first historic hoover, from which I took the name of this blog, so this news is rather dismaying. Here's hoping that her efforts to fight the cancer are successful. Good luck to you, Ann. My thoughts are with you.
5:44 PM
Not content to merely argue about whether downloading music is illegal, I'm going to move on to whether or not it's wrong. Actually, I'm going to let Carlton Vogt do the speaking. He draws several conclusions.
- Downloading music is not stealing.
- Downloading music is definitely stealing.
- Downloading music is wrong, but not stealing.
- Downloading music is neither wrong nor stealing.
That just about sums it up, I think. More seriously, he compares the "try before you buy" approach to downloading to looking at a CD in a store and then not buying it. He concludes that downloading is probably better, because no one gets any money either way and with downloads, at least the music gets heard, which is positive in and of itself and also increases the odds of future music sales.
He then turns around and points out that this depends on whether the listener would have bought the CD if the free downloads weren't available. There you're stuck with the honesty of the listener, which is difficult to rely on given the human capacity for self-deception.
I feel like there may be something there to his CD store comparison, but I suspect it won't really change anyone's mind. More importantly, I think he sums up both sides in the debate, which is always useful, provided that we can listen to what the other side is saying. (from FurdLog)
4:56 PM
When a wildly popular book arrives, I suppose it's not surprising that a host of copyright issues come with it. In The New York Times, electronic versions of Harry Potter and the Order of the Phoenix are up for discussion. There is no legal electronic version of the book, but plenty of infringing versions have appeared, in your choice of formats, including plain text, PDF, and LIT (Microsoft's eBook format). JK Rowling's publisher asserts that only Rowling has the right to publish the book online and she has not done so.
That hasn't stopped fans from scanning the book and creating and distributing digital versions of the book. Some readers are going even farther. Wired News has an article on a German translation effort. A group of 10,000 people is working on a translation of the book into German. This effort is far beyond just plugging the text into Babel Fish. Multiple translations are made for every sentence in the book, and then the members of the group polish the translations, completing four or five chapters a week.
At that rate, it will be done long before the official translation is published in November. As it is being completed, it is being distributed to members of the group through email, but Rowling's publisher has insisted that it go no farther. I have to admit to curiousity about what will happen if it turns out that the amateur translation is better than the official release. Copyright law gives the simple answer that only the official release will ever see print, but I suspect that the amateur translation is more important, certainly for the translators.
4:21 PM
John Palfrey has been discussing copyright and RSS. In my opinion, the facts in this case aren't all that important unless you're a blog geek and you really care about RSS. (If you don't know, trust me. You don't want to know.) But what is important is what he says about fair use.
I have some bad news: fair use is unreliable as a defense in this day and age, on the Web in particular. I very often hear technical people rely on fair use as a reason for doing something, and those people are almost always overstating its reach.
Fair use is a critical part of making copyright law work. It's critical to making the Web work, frankly. We all should be working hard to reinstate a strong sense of fair use, on and offline. But the bad news is that fair use [is] not a strong doctrine at the moment.
This message should be shouted from rooftops. Palfrey goes on to recommend contacting the EFF and other activists about strengthening fair use. I hope by now you've heard this message enough that you believe it. If you still doubt the importance of fair use, speak up. If the messages we're using so far aren't working, I'd rather find different messages than just keep shouting the same one.
2:03 AM
Given all the attention I've given to Aimster/Madster in the past, it's fair to say that I've been strangely silent on the appeals court opinion handed down two weeks ago. In a nutshell, Madster lost. The PDF of the opinion is available for download. Truth told, I was just slow off the mark, and since then I've been trying to keep up with everyone else's comments.
The most prolific writing is probably at A Copyfighter's Musings. Derek seems to have been working on this ruling nonstop for the last two weeks. In his first post, Derek expressed general alarm about some of Judge Posner's statements. In particular, the ruling indicates that while using VCRs to tape and watch shows is legal, fast forwarding through the ads is a copyright violation. Derek is also concerned by vague language on the standard for contributory infringement and the expression that Madster was obligated to reduce infringement which is critical of Madster's encryption services. This was followed with concern that the ruling replaced the Napster ruling with an equally vague standard. The Napster ruling found contributory infringement on the basis of specific knowledge of infringing activity while this ruling relies on a cost-benefit analysis of preventing infringement.
A comment on this post argues that, counter to Derek's concerns that the vague standards increase liability, they actually limit liability by limiting the service provider's obligations. Derek went on to assert that this ruling chips away at Napster. His basic assertion is that the Napster ruling is very harmful because of the obligation it places on the service to avoid infringement, in contrast to Sony, which basically excuses any infringing uses on the basis of significant noninfringing uses. While I agree with that analysis, I suspect Derek is overstating things when he declares that "the extreme version of Sony is long dead." None of the recent cases involving contributory infringement have completed the legal process, typically reaching a premature ending with the bankruptcy of the purported infringer.
Derek went on to a concluding series of posts. He started by tying together his thoughts on the ruling, in which he repeats Judge Posner's analogy between prostitution and copyright infringement. He revisited the fast forwarding issues, saying that half the Madster opinion is "totally unrelated info, with very little supporting material, just to try to embed Posner's views into other aspects of copyright law." Finally (so far), he declares what Napster should have said, in which he compares Sony, Napster, Grokster, and Madster (in the future, I will refer to this set of cases as Inky, Blinky, Pinky, and Clyde) and works on the difference between contributory and vicarious infringement.
There are a few other commentators which I want to mention. FurdLog concludes that "Posner didn't really like anyone's claims on either side," which is the sense I had gotten from the oral arguments. LawMeme calls attention to "disproportionately costly" language in the requirement to prevent or reduce infringing uses. CNet, Freedom to Tinker, and Infothought focus on the encryption issue, while My Ro-bot Life freaks out about fast forwarding.
What do I think? Frankly, I'm tired of litigation on this front. We know that copyright law is deeply broken. Focusing on the details of one of these cases is like ignoring massive head wounds to band aid a scraped elbow on a car accident victim. But as long as this is the only copyright law we've got, I suppose I'm obligated to love it.
The outcome of this ruling is clearly the responsibility of Madster's defense. The Madster lawyer introduced his oral arguments with a technical explanation of the software. If there is still confusion over technical issues at the oral argument, it's probably too late to try to fix that problem. In any event, the ruling has what appears to be a reasonable description of the software. The ruling goes on to explain how similar (functionally identical) software could claim a defense based on the substantially noninfringing use standard from Sony, but it goes on to state that Madster failed to show that the service is used for noninfringing purposes.
Judge Posner made a variety of statements about copyright, both directly related to Madster and not related to Madster, in his opinion. His commentary on Sony, in which he declares that taping shows and building a video library is infringing copying and fast forwarding creates an infringing derivative work, has received plenty of attention. Leaving aside the library issue, I would challenge the fast forwarding claim on the basis that fast forwarding during playback does not create a work in a fixed medium, and is therefore not subject to copyright law. His reasoning would imply that if a reader skims a book or fails to finish reading the book, the reader is violating copyright. The reach of copyright is overlong, but I doubt it is that long. Fortunately, these claims are not essential to Posner's reasoning, and therefore should not be considered binding law. My Ro-bot Life indicated that the fast forwarding language came from the Sony ruling itself, but Derek disputes this and I can't confirm this either way.
Posner agrees with the recording industry that the standard for infringement should be different for objects, such as VCRs, and services, such as Madster. I suspect that the different standards are what Derek is referring to when he declares that Sony is dead. Services, by virtue of their continuing customer relationship, are presumed to be able to limit copyright infringement, while efforts to limit infringement are not a requirement of machines. However, Posner proceeds to limit this obligation, stating that limiting infringement should not be highly burdensome, or else AOL's instant message service could be held to be infringing. Posner notes the paradox in that conclusion inherent in the facts that AOL's own record companies are involved in the lawsuit and AOL provides music chatrooms.
In refusing to let Madster off the hook, Judge Posner focuses on the Madster tutorial, which exclusively uses examples of downloading copyrighted files, and Club Aimster, which facilitates downloading the most popularly traded files, which just happen to all be copyrighted. Once again, I feel like Madster failed to adequately defend itself. Advertising copyright infringement is asking for trouble, so it's not surprising that trouble came looking for Madster. As a result of its own focus on infringing uses, Madster is obligated to demonstrate noninfringing uses, and Posner conveniently lists five possible uses for Madster and then determines that Madster failed to demonstrate any of them. The sense I get is that Posner wanted to rule in Madster's favor, but Madster didn't give him anything to work with.
I can't let Posner's fifth noninfringing use go without comment. He states that downloading a copy of CD owned by the downloader might be fair use. Lawrence Lessig has regularly cited this as a reasonable use of file sharing, but I've avoided it on the basis that it didn't strike me as sufficiently different than other downloads. Apparently Posner sides with Lessig, although he acknowledges that the claim of fair use in this case is disputed.
Posner weaves some subtle magic with regard to encryption. (It's getting late. Can you tell?) He recognizes the value of encryption generally, but then turns around and states that Madster failed "to present evidence that the provision of an encryption capability effective against the service provider itself added important value to the service or saved significant cost." [emphasis in original] The point here is that encryption is good, but the service provider should either have a backdoor or be able to demonstrate the harm a backdoor would do to the service. I would think that Madster could put together a reasonable argument on that front. I think this statement also minimizes the catch-22 other interpreters saw in the decision.
The ruling considers vicarious infringement just enough to determine that it doesn't have to come to a judgement, but I'm really curious about what Posner is thinking on this subject. He made a point of asking both lawyers for their opinions on the distinction between contributory and vicarious infringement at the oral arguments, but neither lawyer really answered the question. Posner is clearly getting at something here, but it's unclear what exactly that is. I'm going to be crazy and assert that if a distinction were made in this case, the basic file sharing service would constitute contributory infringement while Club Aimster would be vicarious infringement. I can't really back that up at this moment, though.
Although I resisted analyzing the ruling, it's clear that I've been drawn in. I can't help getting the sense that Posner thinks that Madster (or another similar service) could win this case if it got its act together. I can't really object to that conclusion. Services that provide encrypted exchange of general information should be free from copyright liability, even if they are used for copyright infringement, provided that they don't focus on copyright enfringement.
9:08 PM
I'm always thrilled to see copyright issues get discussed in new forums. Alas, a Blog responds to the Slate article on Harry Potter knockoffs. Some good back and forth in the comments as well. (from Riba Rambles)
8:08 PM
The Volokh Conspiracy is comparing counterfeit Kate Spade handbags to file sharing. The claim is that in both cases, the real thing is too expensive and the copy is socially acceptable. A followup draws the parallel argument to the "I download because the record companies are evil" argument. These posts are part of a longer chain on the morality of downloading in general (ah, the wonders of a multi-author weblog).
I think it's fundamentally a moral issue, and most people don't think that downloading music is immoral. (Apparently they don't think buying counterfeit Kate Spade handbags is immoral either.) I had a related experience Friday night, when I watched a driver get ticketed for making an illegal right turn on red. Here in the Boston area, "No Turn On Red" signs are optional at best. Sometimes I wonder whether people who learned to drive here can see them at all, or if they just see a mysterious blank spot when they look at the signs. The point is that drivers make illegal turns on red all the time. I had concluded that the signs don't serve any purpose at all.
So when this driver was pulled over, did I think, "Justice!" or "maybe now people will start respecting traffic laws?" No. Instead I thought, "what's the point?" Boston drivers ignore many traffic laws, and this one ticket won't change that. Beyond that, this one ticket won't even reduce the number of people who turn illegally on red, and an enforcement campaign that actually intended to control illegal turners would have to be absurdly large scale. So instead we have a law that is universally ignored, and occasional individuals who get busted for it.
This leads straight into the philosophy of law question that I've been kicking around recently: what are laws intended to do? I feel unqualified to even discuss the question. But when it's expected that a law will be violated, I have trouble believing that it's a good law, regardless of whether the law regulates traffic, handbags, or music. Either way, thinking about it makes me very uncomfortable, but I suppose if there were easy answers, I'd have a lot less to write about.
5:35 PM
Piracy is a massive problem for the music industry, with $4.6 billion in sales of pirated CDs in 2002. Worldwide, one out of three CDs sold are pirated. Notice that I'm talking about CD sales, not downloads. It would be understandable if readers of this blog concluded that I support free copying of music in general, but that is far from true.
Here's my take on the subject. Manufacturing CDs without the permission of and payment to the copyright holder is wrong. Purchasing illegal copies of CDs is wrong. And it's completely indefensible. It may not be morally indistinguishable from shoplifting (to use the RIAA's comparison), but it's damn close. File sharing is a different story. I'm not comfortable declaring that it's entirely innocent, but I am certain that the response of the RIAA is inappropriate.
It's fair to ask what's the difference. A big part of that is the people doing it. Commercial piracy is committed by people looking to make money, and to make money by selling the work of others. There aren't any redeeming factors here. File sharing is an activity of music fans. In many ways, file sharing on the Internet isn't any different than copying a CD borrowed from a friend or creating a mix tape (or CD) and giving it to a friend. Copying is tied to the basic value of music. Music is a social experience. Part of the value of music is in telling others about music that you like and shared experiences tied to a particular piece of music. My CD collection isn't just a series of recordings. It's a collection of memories, most of which are shared.
Sharing music enhances the value of other experiences. It's difficult, if not impossible, to express the financial value of those experiences, but when the music industry tries to prevent people from sharing music, they're not just trying to protect their own profits. They're trying to take away our shared experiences.
I respect attempts by the music industry to control commercial piracy, even though I'm not sure it's a battle they can win. But when they try to take away my ability to share music, they are making me, and all of their customers, into enemies that they don't want to have. (from Mark Mulligan)
3:00 PM
CNET has an article on the legality of storing copies of webpages by search engines. This is obviously tied into the Kelly v. Arriba Soft decision. When an individual uses Google, the search results include links to the original page and and a link to a copy of the page stored by Google. The copy highlights search terms and makes the original page available if the original website isn't functioning or the page has been removed.
From a user perspective, this is a great service. The highlighted terms can make finding the relevant parts of a page faster, and the opportunity to look at pages that aren't available from their original source is invaluable. Publishers don't agree. The New York Times, for example, requires payment for access to older articles, and they resent the fact that Google makes the articles available for free.
Google is probably infringing on the original publisher's copyright. The question is whether Google's copy qualifies as fair use. Another question is whether the exception for data caching in the DMCA applies to Google, but the consensus is that it likely does not. Google asserts that they are within their legal rights, but not all publishers agree. The details of this case are likely sufficiently different than the Arriba Soft case to not establish precedent, so the legal status of Google's cache will probably only be determined if a copyright holder decides to take them to trial.
Once again, my reaction has less to do with the specific arguments and is more focused on the thought that this even being a question is a sign that copyright law as it now stands is totally inadequate to face the digital age.
1:36 AM
Bag and Baggage points to the decision in Kelly v. Arriba Soft. Thankfully, there isn't much to report. Arriba Soft has a image search engine that displays thumbnail versions of found images. (Based on the description, it doesn't sound significantly different than Google Images.) Arriba Soft also linked to the original (full-size) images from Arriba Soft web pages, so it was not clear that the image came from the original website.
Leslie Kelly is a commercial photographer who found that his photos had appeared on Arriba Soft's search engine. Kelly sued for copyright infringement. The court issued a summary judgement concluding that neither the thumbnail images nor the full-size images constituted copyright infringement because Arriba Soft's use of the images was protected fair use. Kelly appealed the decision, and the appeals court has affirmed that the thumbnail images are fair use while remanding the question of the full-size images for a full trial.
The appeals court ruling makes sense. If the court had ruled that the thumbnails were not fair use, that would threaten Google (and quite likely bloggers who quote other sources on the web). Since the decision was upheld, there isn't much to get worried about. My knee-jerk attitude on linking, which the court will reconsider, is that the link doesn't violate any of the rights of the copyright holder (the only copying is by the end user copying it from where it was placed by the copyright holder, who presumeably intended that the image be copyable). A different ruling would be a significant threat to the Internet, which is currently designed to facilitate that sort of linking.
The major point of interest in the ruling is the discussion of what qualifies as transformation in the context of fair use. The ruling emphasizes the different uses for the two versions of the image. The use of the original image is assumed to be esthetic, while the thumbnail is too small to be appreciated as an image and is instead used for image search purposes.
I'm just thinking out loud, but I'm wondering if this argument could be applied to satirical uses of copyrighted works. Traditionally, parody is a protected fair use, since the parody is a commentary on the original. Satire is not protected, because the satire generally has a message unrelated to that of the original. On the basis of this ruling, it seems that satire could be defended as transformative on the basis that the satire has a different use than the original. That is, satire could be defended on precisely the grounds that it historically has not been protected. I'm probably overreaching, but it's worth thinking about.
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