9:42 PM
Peter Yu has written "The Escalating Copyright Wars", which makes the point that changing laws and changing technology have changed copyright from something that doesn't have a direct impact on most people to an open conflict between the entertainment industry and everything else. Yu states that the entertainment industry's approach to copyright issues has "become increasingly futile, disorganized, and counterproductive." He points out that "no country has ever won a war by fighting battles on all fronts" and suggests that the industry become more focused in its response.
Unfortunately, his suggested approaches aren't as innovative as could be hoped for. The first suggestion is to "bridge the copyright divide" through an education campaign. Perhaps if people understood why they have a stake in copyright, they would stop using file sharing services. Tied to that, he encourages tie-ins like password protected websites and direct competition against pirates by increasing the quality of the products. He also recommends increased enforcement, particularly internationally. Finally, he suggests cheaper legal alternatives. It may be clear from these suggestions that he is mixing international and commercial piracy with personal copying, just as the industry has done.
The other big approach he suggests is a nonzero-sum approach to copyright issues, but he is vague about what that would mean in practice, and no sooner does he suggest it than he starts talking about the difficulties of that approach. (from Legal Theory Blog)
1:24 PM
Last night I danced with the public domain at Johnny D's in Davis Square. Brave Combo played a variety of songs including such classics as "The Habañera Twist" and the "Rondo a la Turk Polka." "The Habañera" was written by Georges Bizet for the opera Carmen and the "Rondo a la Turk" is a familiar piece by Mozart. The versions we heard last night weren't quite the same as the originals, but it didn't matter because the place was jumpin'.
I suspect that most of the people at the concert last night didn't appreciate the role of the public domain in their enjoyment of the concert. That's because the public domain doesn't go out of its way to call attention to itself, or even label itself at all. But the truth is that the public domain is all around us and touches us constantly. You just need to know to be looking for it. I can't avoid pointing it out. Perhaps if more people were aware of its importance, we'd have better balanced copyright laws.
2:15 PM
Here's a story from the Washington Post (PDF, from FurdLog), nearly every detail of which is shocking. The World Intellectual Property Organization, which isn't known for taking limited positions on intellectual property, agreed to host a conference on open and collaborative business methods. This conference included a panel on open source software. The US Patent and Trademark Office opposed the meeting on the grounds that open source software is opposed to intellectual property and the WIPO supports intellectual property. And the conference has been cancelled.
It's surprising that the WIPO even planned to have this conference in the first place, but in a good way. The WIPO has a reputation for absolute copyright, and for them to be open to hearing about other models and approaches is a good sign. Unfortunately, including open source software attracted Microsoft's attention, and through them the attention of the BSA. They lobbied to shut down the conference, and got the US government to take action.
The truly dismaying thing is the reasoning the Patent and Trademark Office used. They said, essentially, that the WIPO has one defined purpose and it can't be allowed to consider any thinking not in step with its declared purpose. After all, thinking is bad. Beyond that, the mischaracterization of the relationship between open source software and intellectual property that the Patent and Trademark Office presents only serves to show how much they could learn from a conference about it. The whole thing smacks of not only sticking their own heads in the sand, but trying to pull everyone else down too. (from Lessig blog)
12:51 PM
Lawrence Lessig speaks about how people don't appreciate the value of the public domain. Eliot Landrum has put together a chart that shows why. Out of the 50 best-selling classics in 2002, 10 books are in the public domain. The chart focuses on the current year that the books will enter the public domain, assuming that copyright isn't extended again. I'd like to turn it around and ask how many books would be in the public domain today under the copyright terms when the books were published.
Under the Copyright Act of 1909, the maximum duration of copyright was 56 years. This was not altered until 1962, so all books published before 1947 would have entered the public domain under the terms of copyright when they were written. Thirteen of the books on the list were published before 1947 and are still covered by copyright, meaning that instead of the one in five books we have today, nearly half of the books on the list would be in the public domain. Authors whose books would have entered the public domain include J.R.R. Tolkien, F. Scott Fitzgerald, John Steinbeck, George Orwell, Aldous Huxley, Ayn Rand, Zora Neale Hurston, Agatha Christie, and Ernest Hemingway. Given the continuing sales success of these books, I think it's fair to say that none of them would be abandoned by their publishers, and the competition that should exist for editions of these books might even increase their sales and popularity. (from The Shifted Librarian)
12:08 PM
TeleRead has posted an alert that Project Gutenberg is broke. It would be tragic to let Project Gutenberg run out of money. Go make a donation.
11:54 AM
Ed Quillen points to recent abuses of copyright and asks whether it is "Time to give up on copyright law?" I really can't go that far. The intent of copyright law is good, even if the current implementation is not. But I hope this article sends a warning the corporations which are abusing copyright law. Keep using the law the way you are, and you might find yourself without any copyright protection, and then where will you be? Somehow I doubt that message will get through. (from Tech Law Advisor)
1:38 PM
Kevin Marks has stated that he is interested in my take on mediAgora, despite the fact that the stated intent of the project doesn't match my current concerns. With that qualifier out of the way, let's take a look.
MediAgora is a proposed "new marketplace for media." The focus is on guaranteeing payment for creators. The premise is simple. When a creator makes a work available for sale (as a digital file), the creator sets the price. After that, customers pay the price to get the work. There are a few wrinkles. First, derivative works are permitted, but the creator of the original work must always be credited and paid. Second, promoters are built into the system to encourage dissemination of the created works. The role of promoters is recognized through commissions built into the payment system.
The system starts with creators. MediAgora encourages creators to give up control but to expect payment in return. Rather than trying to fight copying of digital files, mediAgora preaches acceptance of copying but trust that the copying will lead to payment. Likewise, mediAgora requires giving up control over derivative works, but in exchange it requires payments back to the creator of the original work by requiring anyone who purchases a derivative work to also purchase the original. MediAgora also allows negotiation on terms of reuse, and it encourages creators to divide their works into pieces to facilitate negotiations and reuse.
The approach to customers relies on the assumption that customers have an interest in making sure that creators are fairly paid. This assumption is at odds with both the rationale for copyright law and economic theory, which assumes that customers will always seek to maximize their own position, even at the expense of public goods. Given the demostrated lack of "rational" behavior that people exhibit in the real world, maybe this is a valid assumption. The details of how revenue for creations gets distributed to the creator and the promoters are public, so potential customers can evaluate how fair the arrangement is during their purchase decision. The system is also designed to encourage customers to also become either creators themselves or promoters.
The role of promoters is the most interesting part of the system. A fairly complex commission system, with terms set by the creators, is built in. In addition to non-linear commissions per sales, the system supports a chain of promoters for a given sale. The system is designed to remove competition by not providing an incentive for promoters to cut out upstream or downstream promoters and also not providing an incentive to customers to shop around by making the price fixed.
Taking the system as a whole, the first thing to observe is that it depends on everyone not acting selfishly for short term interests. Creators are expected to reward their promoters. Creators also are encouraged to subdivide their own works to encourage reuse of parts of the work, rather than insisting on full payment for their own works for use in any derivative works. Customers are expected to pay for what they use rather than just freely copying. Promoters are encouraged to accept downstream promoters eating into their revenues in exchange for greater overall returns.
The lack of constraints on pricing and the control granted creators creates a totally free market for digital creations. The expected result is that creativity will flourish and everyone will get paid, but the behavior of participants in the existing systems suggests that things may not work out that well. In particular, many creators want to block derivative works and this system allows them to not negotiate on price, which could make the potential price of any derivative work so high that it's an effective barrier to creativity. That may not be rational from an economic standpoint, but that's not much of an argument because the system depends on all the participants not behaving in economically rational ways.
As an aside, I want to discuss copyright and derivative works in general. I am becoming more convinced that copyright should generally not control derivative works. Little good comes of this and much harm. Sure, some authors may move from successful to wildly successful because of movie rights, but I'm not sure how that encourages creativity. I believe the idea of control of derivative works grew out of the music industry on its way to making music copyright an order of magnitude more complex than copyright in general without providing any real benefit to the creators. Why encourage that in the rest of creative work? This isn't a criticism of this plan. It's just a brief rant about copyright in general.
I'm also not a fan of the way this system encourages everyone to get into sales. I've worked in the sales department of a company. I wasn't selling myself, but I had enough contact with the people who were to conclude that I don't want to be that sort of person. The plan seems to have built into it the idea that if you're a customer, you'll naturally want to get into sales. I understand there's nothing keeping me from just being a creator or just being a customer, but the way the plan seems to call out, "C'mon, be a promoter. You know you wanna," makes me nervous.
I have one more concern, which is directly tied into why this plan won't stop the music industry's rampage. For people working inside the system, there's not much reason to try to cheat. But there's also nothing to prevent people from stepping outside the system. I suspect that anyone downloading a song off Kazaa won't care if it originated at mediAgora. On the creator's side, since acknowledging the source for derivative works will either increase the cost or decrease the creator's earnings, there's an incentive to neglect to mention the sources. I suspect that by even asking these questions I'm tagging myself an industry supporting control freak, but I'm sure these are questions that will be in the mind of any creator thinking of selling works through the system.
Finally, one last question about both TeleRead and mediAgora. These are both proposals without implementations. If these plans are really going to work the way you say they will, why aren't you doing them instead of just talking about them?
I think mediAgora is an interesting idea, but I think that in some ways it's a solution in search of a problem. It addresses compensation for creators, which I don't want to minimize, but which also doesn't have as direct an impact on Americans in general as the bad laws and bad lawsuits the music and movie industries are inflicting on us.
10:28 AM
USA Today reports on the first legal action taken by a target of the RIAA's subpoenas. The story is light on details, but it appears that the target will argue that file sharing is not copyright infringement, as I have previously argued. Daniel Ballard, the attorney for the anonymous subpoena target, offers some of his defense. The article states that "Distribution implies sending, rather than leaving something where it may be taken, he says." Assuming that this goes to trial, it will be an important legal test. (from Tech Law Advisor)
12:54 PM
Kevin Marks has posted a comment saying that I got the problem wrong in response to my post about the problem of file sharing. Kevin states that the problem is in rewarding creators for their work, and that in framing things the way I have, I'm implicitly supporting the existing recording industry. I disagree.
Ensuring fair reward to creators has been a problem essentially since the invention of movable type. Revenues for creative works have always returned to the publisher and publishers have acted to minimize the payments they have made to the actual creators. This problem is nothing new and has been unchanged by the Internet.
I'm not trying to minimize this problem. The recording and movie industries have mistreated their creative workers since their inception, and that continues today. When best selling recording artists are declaring bankruptcy, that tells me that something's wrong with the basic functioning of the industry. To the extent that the Internet allows musicians to leave the major record labels, have successful careers, and keep more of their earnings, I think that's a good thing.
That's not the problem that I find myself writing about every day, however. What I write about is the response of the the record industry to the Internet. The recording industry has been successful over the past ten years at changing the law to support their attempts to control music, regardless of the impact that has on technological innovation or the creative process. They have also wielded lawsuits effectively to destroy new potential businesses that could challenge their control. Finally, they are mounting an unprecedented attack on their own customers in an attempt to scare them in line.
Somehow I don't think the targets of the RIAA subpoenas, who are facing potential hundred thousand dollar lawsuits, are thinking, "but the important thing is whether or not the artists are getting paid." The important thing is stopping the RIAA's reign of terror.
That's why I'm focused on either changing the law to legalize file sharing or changing people's behavior to stop the lawsuits. My willingness to support changed behavior may appear to be support for the RIAA, but as open to legalization of file sharing with no compensation to the copyright holders. While I have misgivings about that approach (because I do believe that creators should be paid for their work), I think it may be more likely to succeed than behavioral changes.
Perhaps I should reframe my proposed goals to focus on the industry rather than individuals. Solutions to the file sharing problem should either take away the industry's ability to sue individuals and interfere in technological innovation and the creative process or it should take away their incentives to do so. I think that statement is nearly equivalent to my previous formulation, but the change in focus may make it more palatable.
I had originally intended to review mediAgora today, but I'm going to hold off. Kevin Marks is the principle supporter of mediAgora, and given the differences in how he and I frame the problem, I doubt that it will do well against my standards. If Kevin or others want to argue that it will in fact hold up well, I'll reconsider my position.
11:03 AM
We knew it was coming. The RIAA and MPAA have filed an appeal in the Grokster case. Grokster and Morpheus were sued by the RIAA and MPAA for copyright infringement because of their file sharing services. In April, Judge Stephen Wilson ruled that Grokster and Morpheus were not liable because the nature of the services didn't meet the conditions for either contributory or vicarious liability.
The appeal was filed Monday. The statement argues that the companies that produce the software are earning millions of dollars by providing the site for direct copyright infringement by users of the services, and they are therefore committing vicarious infringement. The original ruling concluded that the services do not have awareness of individual acts of direct infringement or the ability to stop them, so they do not qualify as vicarious infringement, even if the businesses are deliberately structured around the infringing behavior.
12:56 AM
Yesterday, I laid out my understanding of the file sharing problem. Today I'm going to discuss TeleRead's proposal and consider its likely effectiveness in solving the problem.
TeleRead proposes a "Well-Stocked National Digital Library System." Although the focus is on ebooks, the proposal would work for other types of data as well. Unfortunately, beyond that catch phrase, the proposal is surprisingly vague.
TeleRead proposes dedicated cheap generic hardware for reading ebooks. The range of functionality seems to vary from one description to the next, but functions beyond being used to download and read books in electronic format include wirelessly transmitting books from one unit to another and word processing and other general computing functions, perhaps up to the level of being a full fledged Tablet PC.
These "TeleReaders" would connect to the digital library through a generic Internet connection, whether a phone line, Ethernet, or wirelessly. The devices would allow the user to search for and download books. The system would include both a national library and local libraries, so that information of particular interest to a community would only be available to that community. When a user chooses to download a book, the download would be recorded so that the publisher could be properly paid. Likewise, any direct transfers from one device to another would also be recorded and the data collected when the device is connected to the national library.
Here's where things get fuzzy. Payment is at the core of any digital distribution scheme, but TeleRead's payment mechanisms are uncertain. TeleRead seems to be proposing both allowing publishers to charge for books (as in a bookstore) and to have a royalty system operate through the library. If I am interpreting this correctly, some books would require direct payment on download. Others would be effectively free downloads, and the payment would come out of the general library funds. I am unsure what would happen if I were to directly transfer a book requiring direct payment to you. Would it be possible? Would you be obligated to make the payment next time you connect to the library?
The source for library funding is also vague. An early version of the proposal suggested a tax on televisions, but that has been dropped. More recently the proposal has included the possibility of a monthly access charge. Other possibilities include federal funding or a major private donation. Books "for sale" could be paid for directly. Books paid for through the royalty system would require one of these external funding sources, as would the operating expenses for the system.
That sums up my understanding of the system. If there are significant errors or oversights in my description, I would appreciate a correction.
Now to measure the system against the problem. The intent here is to provide a superior system to file sharing so that users will choose to use it rather than infringingly distributing copyrighted materials. It shares many features with the various music services. The possibility of a monthly fee, possibly in combination with charges per download is familiar to the music services. The availability of materials, which is determined at the publisher's discretion, is also characteristic of the music services. Just as the music services have not made an impact on file sharing, this proposal is also unlikely to change user behavior.
There are other unanswered questions to this plan. What's the role of DRM? Given the tracking of books within the system, they can't be permitted to be distributed outside the system. How will that be controlled? What use restrictions will there be? Things I might want to do with a digital book include automated reading out loud, printing the book, and copying and pasting text (and images, if any) from the book into other documents. Will I have my fair use right to make legal but unauthorized uses of the book?
There are also privacy considerations. If personal information is associated with the individual devices, which it has to be to support charging for downloads, the system will be able to track every book an individual ever reads. This is in contrast to traditional libraries and bookstores, which offer true anonymity to readers.
It should be clear that I am skeptical of TeleRead as a solution to the file sharing problem. It could be argued that TeleRead is not intended as a solution. It is true that the original motivations for TeleRead were not related to file sharing. However, it is often promoted in the context of solutions to file sharing and is compared to other proposed solutions. I came to it thinking of it as a proposed solution and I have evaluated it in that context.
1:35 PM
Library Journal has an article on "Fair Use Under Fire". The article lays out the threat to fair use that DRM embodies and argues the need for "good DRM". I'm not sure I believe in good DRM. All DRM defines the ways in which the DRM protected material can be used. DRM authorizes the uses to which the material can be put. As the article itself states, "Fair use is an unauthorized yet lawful activity."
In the wild, there are no limits on how creative works can be used. You can, for example, read a book out loud, record the reading, chop the recording up, and rearrange the recording with other recordings into a piece of music, as John Cage has done. Not everything you can do is legal, but you can always do it. DRM has a totally different philosophy. DRM always says, "Here is this file. These are the things you are allowed to do." DRM is intrinsically about giving permission.
Fair use, as Carrie Russell recognizes, is about doing things without permission. If there were a DRM system built from the ground up to allow everything except what is restricted, I might be willing to see that as having the potential to allow fair use, but that is not how DRM is constructed today. Without that change in philosophy, DRM will never support fair use. The thought that anything not prohibited is permitted is offensive to the organizations which a clamoring for DRM, so I don't think the two sides will ever meet.
I suspect I'm not clear enough about the distinction I'm trying to make. I'll keep working at it. Any comments you have would help clarify how to say it better. (from The Shifted Librarian)
12:24 PM
Jay Currie has written an article about Canada's compulsory licensing scheme. Not that the article refers to it that way, but that's what it functionally is. Under Canadian law, private copying of audio is explicitly protected as legal behavior. Currie asserts that this extends to making files available over the Internet and copying them, but I'm not sure I trust that unless it's been tested in court. In exchange, there is a tax on blank recording media which is paid back to the music industry. This makes it functionally the same as many proposed compulsory licensing schemes in the US which propose a general tax which is redistributed to the copyright holders.
From the sound of things, this is working out pretty well in Canada. The taxes are invisible and generally accepted by the public. The music industry doesn't have significant lobbying power to try to change copyright law. And apparently online file sharing is unrestricted.
Currie is focused on the American consequences of this, and in particular, the music industry's plans to sue everyone. The music industry is going after individuals who make files available to download. The thinking is that if there are no files being shared, no files can be copied. The RIAA may stop Americans from sharing files, but it can't stop Canadians. If the files are still available, the downloads will continue and the RIAA's strategy is doomed from the start.
Canada merits a closer look. What impact has the blank media tax had? The way this article describes it, it sounds like an effective solution to the file sharing problem. (from FurdLog)
2:59 PM
About a month ago, I mentioned that TeleRead was discussing a paper about DRM. TeleRead was using the paper to question various approaches to the problem of file sharing. I concluded that the paper's challenged TeleRead's approach as well. David Rothman wrote to me to say that I was misunderstanding TeleRead, which has led me to decide to study TeleRead's proposal in more detail. These sorts of plans tend to get out of hand, so I've decided to extend this study to various other proposals, including mediAgora and various compulsory licensing schemes. I hope to get to each of these in the near future, but I think I should start by identifying the problem. Any proposed solution has to be measured against how well it solves the problem in addition to how well it achieves its own goals.
According to the recent Pew study on music downloading, 26 million American adults make copyrighted files available for downloading online. The majority of these people don't care whether doing so is illegal or not. 35 million American adults download copyrighted files. Again, the majority don't care about the legality of their behavior. While there is significant overlap between the two groups, it is not total, meaning that 46 million American adults are involved in the online distribution of copyrighted files.
These numbers horrify copyright holders, particularly the major record labels and the major movie studios. From their perspective, these 46 million people represent lost revenues and the potential future downfall of the industry. The law as it has been interpreted by the courts makes both activities illegal and the music and movie industries are determined to stop them.
This is the problem. Any potential solution must do one of two things. Either it must change the law so that this behavior is no longer illegal or it must change people's behavior so that they choose to stop uploading and downloading files. Both approaches are uphill battles. Changing the law is unlikely to happen without industry support, which in turn means that it must include a mechanism for payment for all this distribution of copyrighted works. The difficulty of changing the behavior of users is indicated by the indifference they currently show to the legality of their behavior.
It's worth mentioning the approaches that have been taken so far. Education campaigns have been unsuccessful so far, as measured by both the continuing infringing behavior and the growing indifference to the law.
Legal services have had varying degrees of success, but even the most popular of them haven't impacted the illegal use of the Internet. The iTunes Music Store may be a success as a store, but it's a failure at controlling copyright infringement.
The music industry has had some success in suing file distribution services, but not enough. New services are showing up faster than the music industry can shut them down, and they are being redesigned to be harder to shut down. Besides, they've never had any success at fixing the real problem, which is stopping individuals from copying files and violating copyright.
The music industry's plan to sue the world is too new to measure its success, but let's talk numbers. In the worst case, stopping people from sharing music by suing them could require suing all of them individually, or 26 million lawsuits. Even if the industry won, what would be the harm done to the economy through the individual damages, the strain on the legal system, and the cost of the lawsuits to the industry itself? Even if this is a solution, it can't be said to be a good solution.
So there we are. The problem is widescale copyright infringement online. Responses so far have either not had an effect on copyright infringement or will do untold damage if they succeed. I welcome discussion at this stage. If I'm not identifying the problem correctly, I won't be able to evaluate proposed solutions. If there's something I'm overlooking or getting wrong, let me know.
1:56 PM
There's a major copyright fight that I've been avoiding, mostly because it's so ugly. It's getting enough attention that I should at least acknowledge it. SCO is claiming that Linux contains code from the Unix operating system, for which SCO controls the copyright. A wide variety of allegations have been made in both directions as a result of this basic claim. SCO is requesting a licensing fee from all users of Linux, despite the fact that copyright law doesn't grant an exclusive right of use. IBM has refused, and SCO has declared that it is terminating IBM's licenses for Unix, threatening AIX, IBM's version of Unix. IBM claims in response that SCO can't terminate IBM's license, amid general claims that the history of Unix is so complex that it's not clear that SCO even owns the copyright for Unix. Things are complicated further by the fact that SCO has distributed Linux in the past. Red Hat, another Linux distributor, has also gotten involved and is threatening to sue SCO. Related to all this, SCO is claiming that the GNU General Public License, under which Linux has been made available, is inherently invalid. Trademarks, patents, and trade secrets all have their roles to play in this as well.
ZDNet has a collection of articles on SCO (thanks to FurdLog for the pointer). Like I said, it's all really ugly.
This is a clear attack on the GPL and open source concept in general. Beyond the basic claims that the GPL is invalid, there's a threat here to all open source software. The threat is that you, as a user, don't know what's in the software. If there are any copyright infringements, you may find yourself unable to continue using the software or obligated to pay to continue to use the software. This is in supposed contrast to commercial software, where the manufacturer is more trustworthy because the manufacturer faces liability for infringement. Beyond Linux, this threat applies to a wide variety of software, including for example the Apache web server, the Mozilla family of web browsers, and Mac OS X.
Copyright law doesn't grant any exclusive rights with regard to use, just to duplication, distribution, creation of derivative works, display, and performance. What that means is that if you are using software that is found to be infringing on copyright, you have no obligation to either stop using the software or to pay a licensing fee. Users have nothing to worry about. If you are a Linux distributor, such as Red Hat or IBM, you have more worries. Corporations which have distributed the software internally might also be targets for violating the right of duplication.
Something that's not clear to me is what happens if someone claims copyright on a work they don't hold copyright on. Obviously that person has all sorts of liabilities and any licenses that person issues are invalid, but what's the liability of a third party which acts according to the terms of those licenses? Suppose I claim to be the copyright holder for Lord of the Rings and "license" to you the right to make and sell copies. I'd be in a lot of legal trouble, but are you? I suppose that since copyright doesn't require knowledge of infringement to make it infringement, you are at least liable for civil damages. That would appear to apply in this case, because the GPL doesn't contain any language indemnifying the licensee for the actions of the licensor.
If Linux (or an open source project in general) is found to be infringing, the infringing code can be removed and replaced. Logic indicates that if the code is fundamentally irreplaceable because there are no other ways of achieving that functionality, then the code should not be copyrightable under the idea/expression dichotomy, but I don't know that that would hold up in court. Code has been removed and replaced in open source projects in the past, so containing infringing code should not doom the software or present any problems to users. Developers and distributors will have a strong incentive to replace the offending code as quickly as possible.
This is ugly and potentially harmful to software development in general. I use a significant amount of software which is open source or built on open source components every time I use my computer, as do many other users and the Web in general. If this attack succeeds, all of that will be threatened. So much for the promotion of science.
12:46 PM
Here are my notes from the hearing on the Piracy Deterrence and Education Act which was held a few weeks ago. Some comments at the outset: I missed a couple of key chunks of testimony, including that of Linn Skinner. From what I saw, all of the targets of the testimony seemed to be chosen specifically to say that they support the bill. No serious testimony was presented in opposition to the bill. Rep. Berman took the opportunity of this hearing to talk up ACCOPS. Rep. Boucher should be commended for the skepticism he expressed. FurdLog has previously discussed this hearing. What follows are my notes taken during the hearing, which are, as usual, rather rough.
HR2517 Piracy Deterence and Education
piracy over internet - peer to peer - alarming
suing developers hasn't worked
suing individuals expected to be a deterrent
difficult to get law enforcement to get involved
efforts made to increase efforts of law enforcement
many believe copyright enforcement not important
Berman says:
infringers can better afford litigation than holders
users of Kazaa do not fear jail time
2517: FBI warnings about dangers of infringement
criminal suit on unregistered work - registration barrier prevents protection of works
HR2752: complements
transnational issues
uploading of a single work is felonious
clear and conspicuous notice on spyware
false domain name registration information - evidence of wilfullness in copyright infringement
Janet Monroe of FBI:
activity of FBI cyber division
July 11 Chicago Tribune. computer hijacking for porn. claims tied to Peer to peer.
2 billion files transferred/month few believe consequences
few believe security or privacy at risk
peer to peer centers on music and software, also child porn
orders FBI to develop deterrence program
agree that FBI must work with private sector
FBI and RIAA in final stages of IP warning program
"Open Letter on vulnerability and illegality of peer to peer"
hope to stem tide
consequences from economic damage to espionage
Mr. Trust? photography association
pulled away
Lynn Skinner
Christiansen UniversalStudios
piracy is greatest threat to creative industry
one copy of film can be made available to millions
80% of TV and movies lose money
depends on hits, which are most pirated
tells Hulk story
10s of thousands of sources
people who see it on Internet don't pay
work print also threat
ad agency loaned it to Kerry Gonzalez
soon available everywhere
worked from watermark on work print
applaud conviction
further measures will foster legitimate distribution
break for vote
question to Christiansen: success of Hulk case, why ripe
ability to track leak source. rapid response, FBI very serious in assistance
question to Skinner and Trust: dealing with law enforcement
Skinner: not great response from law enforcement
Trust: photographers feel disenfranchised, don't register, almost impossible to do anything about stealing a photograph
question to Monroe: expect law to more. is Hulk first prerelease prosecution
Yes
Q; why don't we prosecute more?
still in embryonic stages, cyber crime #1 violation is IP. expect many more prosecutions
...
q: eliminate registration requirement. current obligation to register for criminla prosecution
must have valid copyright for prosecution, must have application for reg.
q to Christiansen: warning notice - under what authority for existing warnings
agreement in place between FBI and movie industry on warning on start of movie
q on single upload
welcome any tools - valuation automatically exceeds threshold, prosecutions rare
q on fears of civil liability
Skinner: lack of fear well founded
q to monroe: false whois data. would accurate info be useful
yes
Rep Kelly Q for Monroe: making it easier to use FBI logo
invest, edu, train
edu write letter to public on illegality to be posted and used by holders
Kelly is asking about advance leak who do they contact
local office
Kelly should there be "online SWAT team"
currently have trained agents in each field division
also regional offices for more manpower
q to Ashcroft on prosecutions on p2p (not at that time) is Hulk precedent for additional crimes
q from boucher concerned about inappropriate use, more should be done, commend FBI for Hulk. has concerns with bill sec 3 "unauthorized" consent of copyright holder or unlawful
Christiansen: infringement includes normal defenses
boucher: unauthorized means infringment
Christiansen download is an infringment
boucher is asking about fair use
Christiansen: never find fair use to upload
...
q from Kelley on ramifications of FBI actions. Editorial pages supporting IP. reexamine what IP theft really means - how does committee further the work of the FBI? Do you have the tools legally for Hulk and future?
monroe: more personnel
investigators
to Christiansen: suggestions to committee on powers to protect rights
issue of registration
q from Winters - thinks that Hulk noteworthiness is that it is noteworthy at all. Monroe: how long to find an illegally pirated movie
not very long
Q aren't you just one monolithic (after referring to Universal as Paramount)
Q why isn't there more action
have undercover operations that will be prosecuting
Q giving notice
working on it
Q no deterrent force because gov not taking seriously. How many investigations currently?
as many as we can with manpower available
expect to mark bill next week
10:01 AM
Scripting News has a link to an article about copyright that ran in The Atlantic Monthly in 2000. It's depressing to see how little has changed. The article has good details about Sir Arthur Sullivan's response to the last technological upheaval in the music industry around 100 years ago.
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