1:05 PM
I want to further develop some thoughts from yesterday. Suppose I were to make 1000 CD copies of the new Metallica album and give them away. I think most people would view that as a pretty clear case of copyright infringement, even if I wasn't charging for the copies. It's hard to look at that sort of mass copying as anything other than an attempt to replace the sales of Metallica's album. Furthermore, I would expect that if I did that on a regular basis, it would be only a matter of time before I became a target of a lawsuit from Metallica, their record company, or the RIAA. I would deserve whatever punishment the legal system doled out.
Compare that to making a single copy of the Metallica CD and giving it to a friend. Most people consider that reasonable behavior. The recording industry disagreed, but at the same time there wasn't really anything they could do about it legally. Single copies are too small scale for the recording industry to have a chance of catching it. Beyond that, it's too small for the punishment to justify the enforcement effort economically. Recording industry frustration with individual copying led to the Audio Home Recording Act of 1992, which essentially granted permission for personal copying in exchange for certain restrictions.
The AHRA has basically failed because it was too limited in scope. It regulated digital recording media, leading to the development of such marginally successful recording media as DAT, MiniDisc, and music CD-Rs (as distinct from data CD-Rs, which have become wildly successful, both for music and for general data storage). The intention was to permit personal copying within certain limits while guaranteeing payment through media taxes to the recording industry. Digital recording devices were defined in a way that excludes computers from the scope of the law. From the standpoint of the computer industry and users, that's a good thing. From the standpoint of the music industry, it's a disaster because computers are now used for unregulated wide-scale copying.
This leads us to lawsuits over file sharing. From the perspective of users, file sharing resembles individual copying, since all transactions occur on the scale of individual copies. From the perspective of the recording industry, file sharing resembles commercial copyright infringement, because a single file can be copied thousands of times, replacing record sales. The recording industry has successfully pressed Congress to view file sharing as comparable to commercial infringement, leading to the lawsuits they are now pursuing.
From the perspective of users, these lawsuits are shockingly unfair. This is evident in the statements that targets of the lawsuits are making which state that they thought file sharing was legal and don't understand why the industry is targeting individuals and in the extreme hate that average people are now directing at the RIAA.
It doesn't make sense to ask which perspective is correct. The question is how to resolve the two views. Widescale lawsuits clearly don't do that. Neither does unregulated copying. Perhaps what's needed is a modernized version of the AHRA, something which preserves the right of individual copying while establishing a payment mechanism for copyright holders.
I disagree with Ernest Miller. I don't think the choice is between supporting copyright, and therefore the RIAA lawsuits, and opposing the lawsuits, and therefore copyright. The only approach that makes sense is to preserve copyright while stopping the lawsuits. Doing that may require new ways of thinking about copyright. Hopefully everyone will come to realize that and work together on new approaches.
12:16 PM
I just thought I should point to Penny Arcade's response to the RIAA's amnesty offer.
8:40 PM
LawMeme points to a pair of articles on file sharing at Salon. Scott Matthews, a software developer, is opposed to the EFF's approach to file sharing. Jason Schultz at the EFF has written a response. Back at LawMeme, Ernest Miller adds his own criticisms of the EFF.
The Internet poses scaling problems. The harm of making one copy of copyrighted work is pretty minimal. But when everyone allows anyone else to make a single copy, the overall effect is substantial. Copyright holders see the overall impact, but individuals are only making one copy at a time. Neither perspective is really wrong, but they produce radically different conclusions about the response. I'm not sure the two positions can be balanced against each other, but without a balance I just see unending conflict.
3:16 PM
Ernest Miller asks a really good question. For those of us who oppose the RIAA's lawsuits, when do we think copyright holders should be able to sue? Here are my thoughts. It seems like the penalties for an action should be dependent on two factors: the harm done by that action and the difficulty of that action. The Internet has caused the difficulty of reproducing a copyrighted work to plunge, while the putative harm is still the same. The response of Congress has been to vastly increase the penalties for copyright infringement. I'm not sure that's the right direction to go in. It's as if Congress thinks legal approaches and technical approaches are interchangeable when they're clearly not.
Rather than ask how we can maintain the status quo in the face of changing technology, I think we have to ask what systems make sense given that we have new technology. Suing 60 million people for hundreds of thousands of dollars apiece clearly does not make sense. I'm struck by the fact that the RIAA is settling with people who were sharing thousands of songs for a few thousand dollars, when under the law they could be liable for $150,000 a song. (I'll note that it's not certain that they are liable, because it hasn't yet been explicitly tested. But they could be, and the RIAA asserts that they are.) At the rate of a few dollars a song, it probably isn't worth the effort to sue file sharers, and yet that's the rate that the RIAA seems to think is appropriate. I'm inclined to agree with them. If the value of a song is around a dollar, it makes sense that the penalty for illegally copying a song be on the order of a few dollars.
If the maximum penalty for copyright infringement were, say, $5 a song, I'd be much more likely to approve of the lawsuits. The downside from the RIAA's perspective is that at that rate, it wouldn't be economical to sue infringers. I'm reminded of transaction costs problems and market failure, although in this case the "market" is operating through lawsuits. The solution to market failure is to not depend on the market. If the most the RIAA could gain through a copyright infringement suit against a file trader was $5/song, they'd be screaming for government intervention. They've gotten it too, but not in the form that we, or they, should hope for.
Increasing the penalties of copyright infringement is clearly not the way to go. What we, and they, should be looking for is a way to obviate the need for lawsuits. Selling music online at reasonable prices and terms is the free market solution. Compulsory licensing is government based solution. If there are other options, I'd like to hear them.
1:44 PM
Lisa Rein has written an article about the legality of the RIAA's subpoenas. Although the subpoenas have been filed under the DMCA, the procedure provided by the DMCA may not be legal by the existing standards of subpoenas. If that's the case, the RIAA could be in hot water over the attempt to use the subpoenas. I think it's unlikely that these subpoenas will come back to harm the RIAA, but the article lays out why the subpoenas are a problem. (from Boing Boing)
1:27 PM
The EFF has started a petition to Congress asking for reasonable copyright laws in the wake of the RIAA lawsuits. I'm sceptical of the effect this will have, but I've signed it anyway. Doing nothing definitely won't make a difference, but signing the petition may. The EFF is approaching the half way point of the goal of 10,000 signatures. Take the time to add yourself to the list. (from Boing Boing)
10:46 PM
Here's some more info on reselling songs purchased through iTunes. As the Apple Turns reports that Apple has stated that you are free to resell the file, but not the authorization. That's not much of a sale. It's sort of like selling a book, but not permission to read it. George Hotelling has reported that he succeeded at transferring a song to someone else, only by giving that person the entire account. I have trouble viewing that as much of a success.
10:32 PM
There's been plenty of excitement lately in the RIAA's campaign to sue everyone. On Friday, the RIAA announced that it was offering amnesty to file sharers. On Monday, the RIAA filed lawsuits against 261 individuals, accusing each of them of copyright infringement for making songs available for downloading on the Internet. Of the targets, the one who has gotten the most attention is a twelve year old girl who quickly settled for $2000. The recording industry is also trying to demonize file sharing as a den of pornography. CNet has a roundup of stories on the RIAA which is a good place to start. Other commentary follows.
Let's start with the amnesty offer. The RIAA declared that it would not pursue individuals who it has not already started the legal process against if they stop using file sharing software and delete all downloaded songs. Public Knowledge and the EFF issued warnings against the amnesty program, calling attention to the fact that this would only shield users from the RIAA and could actually make them more vulnerable to other lawsuits. Eric Parke has taken things a step further, suing the RIAA over the amnesty offer.
The New York Times had a trio of articles about the lawsuits. The first focuses on the details of the lawsuits. (cache) The second argues that the RIAA is "Fighting the Idea That All the Internet Is Free". (cache) The third article is on the trouble in the music industry beyond file sharing. (cache) These were followed by article on the fact that it may be children who are file sharing and the responsibility of parents to control this behavior. (cache)
The Times has an article on the pornography angle which indicates that the music industry may be overstating its case. (cache)
MacSlash raises an interesting question. Many users currently believe that file sharing services are legal. If the RIAA convinces them otherwise, will users come to believe that iTunes (or other legal music services) is also illegal? Is the difference between legal online music distribution and illegal distribution big enough to make a distinction for most people?
9:33 PM
Tim O'Reilly has some interesting comments on file sharing and ebooks. It's interesting that while he doubts the success of ebooks, saying that he thinks subscription services are a better model, the most successful music service has been based on individual sales. The subscription services have struggled. Of course, they have had different DRM policies as well, which may make a difference.
5:24 PM
You may have seen ads for the upcoming movie Underworld. It comes across as one in the current generation of Matrix ripoffs, making extensive use of black, shiny clothing and capes, guns, and kung-fu. It's the target of a copyright infringement lawsuit, but not because of the similarity to The Matrix. White Wolf, a publisher of games and books, accuses the movie of using elements from the story "Love of Monsters".
Penny Arcade has the details and commentary on the suit. White Wolf has issued two press releases on the suit. The first is an announcement of the lawsuit. The second states that White Wolf's request for a temporary restraining order has been denied, but they are proceeding to discovery for a hearing on a preliminary injunction. Penny Arcade, which has been the target of trademark infringement claims in the past, is sceptical, noting that Romeo and Juliet comes to mind before White Wolf's games or stories.
I don't know either the story or the movie well enough to pass judgement. I can't judge from the complaint to what extent the similarities are substantive or superficial, and I certainly can't predict what the judge will think. Instead, I'm wondering about how copyright should work. How similar should one thing have to be to another to be infringing. Vampires, werewolves, and Romeo and Juliet have all been around for a while, but does that mean that a combination of the three is unoriginal and undeserving of copyright? Alternatively, does it make all combinations the same, and any story combining the three a derivative of the first story to combine them?
Obviously, neither extreme is defensible. Despite the fact that stories of vampires, stories of werewolves, stories of star-crossed lovers, and stories of vampires and werewolves who are star-crossed lovers have already been written, a new story deserves copyright protection and is not automatically infringing on existing stories. I'd like a firm line, saying this is clearly different enough but that is clearly not. I think the only place that line could be drawn is at exact duplication, but I don't think that's enough. Certainly most publishers would argue that that isn't enough. I don't know.
3:41 PM
The New York Times reports that the FCC has issued new rules on digital television. (cache) Unfortunately, the article doesn't have any details on the biggest question on digital TV in copyright circles, the broadcast flag. Anyone have any more details?
1:48 PM
On this date two years ago, terrorists took control of four airplanes. Two were flown into the World Trade Center, destroying it and killing 3,000 people. One was flown into the Pentagon, doing substantial damage. The fourth was crashed, presumeably on its way to another target. I feel like I can't let this day go unremarked, but at the same time I don't know what to say.
The events of that day were so large that it seems impossible to summarize them or adequately comment on them. The attacks redefined the place of America in the world, and America is today continuing to try to redefine itself. I feel like it's not my place to pass judgement on that. I disagree with many of the things that our government has done in response, but I ask who am I to judge whether a particular response to such a devastating event is appropriate.
I think the answer, if there is one, lies in the ideals this country was founded on. The Declaration of Independence, the Constitution, and the Bill of Rights are more than the basis of the laws and government of this country. They are a philosophy of government, which places the government at the service of the people and not the other way around. The authority of the government is limited and it exists only as long as the people grant it that authority. This is a radical reconceptualization of power, taking it away from the few who have historically used power as a means of control and giving it to the many, who wield the power as both a defense and expression of freedom.
The current members of our government would do well to remember that. It is this freedom and power in the hands of individuals which has empowered the growth and development of this country, but this same power threatens many people, both outside and within this country. The ones who are threatened by it are the ones who have power, control, and authority over others. Granting power to individuals means taking power from the ones in control.
If there is anything the world learns in the aftermath of the destruction of two years ago, I hope it's the importance of freedom and individual power. The American government has not always respected that, internally or externally. The current government is pursuing control above freedom. Hopefully they will come around. If they do not, I hope individual Americans exercise their power to bring them around.
7:54 PM
The Shifted Librarian is asking whether the American Library Association's law firm has a conflict of interest. The same firm represents both the ALA and the RIAA, and there's an obvious conflict between the two sides on some issues.
7:51 PM
Lately my response to some news reports has been to just decide that "that's stupid" and move on. At calmer moments I recognize that that response is inadequate. Case in point: Microsoft is adding DRM to Office. Word, Excel, and Powerpoint files have generally been interoperable between different versions of the software, and despite the fact that Microsoft hasn't published the file formats, other software vendors have reverse engineered the formats to make reasonably compatible software.
Microsoft threatens to bring all this to an end by introducing DRM to their documents. The "good" news is that soon, you won't be able to manipulate Word or Excel files the way you expect to. The bad news is that you will need the newest versions of Office in order to open them at all. There are no upsides. Does anybody want this?
7:48 PM
Garage door openers are not protected by the DMCA. It's mind boggling to me that I should have to write that, because the DMCA is about copyright and garage door openers are intuitively, at least, outside the scope of copyright law. Nonetheless, Chamberlain sued Skylink for violating the DMCA because Skylink manufactured a garage door opener that works with Chamberlain's devices. Other people have analyzed this. I think it's just dumb, and a sign of how wrong the DMCA is.
Other commentary includes Lenz Blog, Freedom to Tinker, A Copyfighter's Musings, and LawMeme.
7:44 PM
At the wacky extremes of copyright law on the Internet, George Hotelling attempted to resell a song he purchased from the iTunes Music Store on eBay. Under the first sale doctrine, a purchaser of a copy of a copyrighted work has the right to resell that copy. This means that although the record industry may not support used CD stores, the right of the stores to resell used CDs cannot be taken from them.
This resale of a song purchased online was a deliberate test of that policy. Legally, Hotelling has the right to resell the song, but the practical meaning is unclear. The copy protection on songs sold by the iTunes Music Store is tied to the original purchaser, and while Hotelling wanted to transfer the copy protection, he likely would not have succeeded.
The sale was interrupted by eBay, who stated that the sale violated its terms of use and pulled the sale. Hotelling is now working on giving the song away.
Other coverage includes Slashdot, Bag and Baggage, CNet, and Ernie the Attorney.
7:40 PM
Universal Music is cutting the prices on its CDs (cache). The list price of their CDs will be reduced from $18.98 to $12.98. The price reduction is in response to falling music sales, which the record industry blames on illegal copying of recordings, including Internet file sharing.
I'm not sure of the impact of file sharing on CD sales, but as a music purchaser, I'm all for lower prices. The article indicates that the other record companies will probably also reduce their prices. If this leads to higher sales, as it should, this is clearly a win-win situation. Slashdot has additional comments.
7:33 PM
Wired News reports that the Appeals Court has blocked the new FCC media ownership rules from taking effect. The new rules would allow a single company to own more television stations than under existing rules and also allow companies to own both television stations and newspapers in the same market. The new rules set off a firestorm of protest when they were first proposed and both the Senate and the House have proposed legislation to overturn at least some of the new rules. This court ruling effectively adds another front to the battle. The New York Times also has coverage. (cache)
Online Journalism Review has a related interview with Michael Powell. (from JD's New Media Musings) The interview doesn't touch on the ruling itself but Powell discusses the issues behind media deregulation. Suffice it to say that while Powell is certainly intelligent, some of his comments completely miss the point.
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