Yesterday I attended Digital Media in Cyberspace, a conference held by the Berkman Center to discuss copyright and the Internet. The conference is a follow up to the white paper "Copyright and Digital Media in a Post-Napster World," which lays out where we are today. "Five Scenarios for Digital Media in a Post-Napster World," which suggests future possibilities was distributed at the conference. To my knowledge, it is not yet online. The conference featured speakers from a variety of viewpoints discussing the merits of the five scenariios in the paper. The conference was interesting but I think ultimately disappointing.
The major disappointment was in the people not present. Because of Hurricane Isabel, some attendees were not able to make it, including some of the speakers. Most conspicuous by their absence were Cary Sherman, President of the RIAA, and Fritz Attaway, VP of Government Relations and General Council for the MPAA. If I were more conspiracy minded, I might suspect that they arranged for the hurricane deliberately to avoid coming. Many of the speakers indicated that changes are unlikely to happen without the support of the recording industry and movie industry, so holding discussions without them seems like a waste of breath. I'm very interested in their take on compulsory licensing. Are there any conditions they would want to apply to that sort of plan? Are they completely opposed to that approach? The major means of communicating they seem to employ is lawsuits, which I hope isn't the only message they have on this.
The conference presented five scenarios for moving forward. While reading the descriptions, I had the sense that although they spoke of five interested parties, creators, publishers, technology companies, ISPs, and the public, the proposal was written to favor the publishers, tech companies, and ISPs. Part of that is the language used. The proposal refers to the public as consumers, which I think minimizes the role of the public in these discussions. The public isn't just the people who will purchase the products of the creative industry (regularly referred to as "content," another word I have issues with). Theoretically, copyright serves the public. This idea is contained in both the Constitution and the Copyright Act. Copyright is a tool to increase creative productivity, because more creation is in the public's interest. I also think it's important to remember that the line between the public and the creators is a thin one. While they have different interests, people move fluidly between the two categories, which implies to me that the distinction isn't as great as it might appear.
I also had the sense that the role of creators was minimized. In these discussions, it frequently feels like there's an assumption that meeting the publishers' needs will guarantee that the creators' needs are also met. I'm going to borrow an analogy from Scott Adams and say that musicians are to the music industry as minks are to mink coats. Assuming that the publishers have the creators' needs at heart is clearly not valid. I may have been reading this into the paper. It's an attitude that I expect to see, but the paper does try to distinguish between the two groups.
Thankfully, comments by the speakers and audience members at the conference did not exhibit those biases. The interests of creators and the public were well represented. The underrepresented group appeared to be the publishers, as I already indicated.
The five models are no change, property rights, tech defense, public utilities, and compulsory licenses, which were regularly referred to as "alternative compensation." I'm not sure why the other name was used. Perhaps alternative compensation sounds less scary than compulsory licensing.
No change is, as the name suggests, continuing to do the same things that we're doing today. We could look forward to continued rampant illegal online distribution, lawsuits, and the general decline of the music industry, with the expectation that other industries, including movies and print, would follow. I think it's safe to say that no one wants this.
The property rights model assumes that the lawsuits work or attitudes otherwise change so that distributing copyrighted materials online ceases. The music industry would like this, but I don't see why that would ever actually happen.
The tech defense model assumes that actual working DRM will be developed. Again, the popular opinion is that this is very unlikely to come to pass.
I wish the public utility model had gotten more play. The idea is basically to trade increased industry control of copyrighted material for increased regulation. Public television, public radio, and the BBC were presented as possible models. Unfortunately, this idea had practically no support. Concerns about the impact of government involvement in creation pretty much killed the idea. Despite the concerns I have about that, I would have liked to see more objective discussion of the plan.
Compulsory licensing would scrap the current copyright system. Instead, taxes would be collected and distributed to publishers based on the amount of online distribution. In exchange, online distribution would be essentially unregulated. These sorts of plans hve been subject to a significant amount of debate, and the debate continued at the conference. One panelist asked who would pay five dollars a month just to make copyright issues go away (and legalize filesharing) and got substantial but not universal support. I'm still not sold on the idea. As I said at the conference, it feels like a bribe. "Please don't sue and eat us. Just take some money and go away." Beyond that, there are substantial practical problems with this sort of plan. William Fisher, who has proposed his own compulsory licensing scheme, recognizes that government opposition to this idea means that it is unlikely to come to pass without voluntary systems as test cases. He suggests that perhaps a voluntary system might ultimately be better than a government controlled system.
I can't help feeling that everyone says that they don't want the current system, but as soon as a new system is proposed everyone reflexively attacks it and knocks it down. If we can't agree to a different system, we're going to be stuck with the current system whether we like it or not. I don't know how to get away from that short of a complete industry meltdown. In the meantime, I'm reminded of the definition of insanity as continuing to do the same thing and expecting different results. The idea of success coming from either legal or technical solutions alone seems far-fetched, but people seem to think that maybe some combination of the two will. Can anyone explain to me how using two things that don't work together is supposed to create a working solution?
I guess I've gotten pretty pessimistic. How are we supposed to start doing things differently if not everyone participates in talks about it and any suggestions of changes get shot down? This is the world we are living in. It is also the world we are stuck in.
Derek Slater was also at the conference and has posted his comments. Somehow, in a room of 100 people we ended up sitting next to each other and so I finally got a chance to meet him, which was good. News reports on the conference include Information Week, AP (at the Seattle Post-Intelligencer), and Business Week. Dan Kennedy of the Boston Phoenix was there, but I don't see an article yet. I will add other commentators to this list as I find them.
I've been doing some more thinking about nonrivalrous goods. This is basically me thinking out loud and I don't really know what I'm talking about, but that hasn't stopped me before.
The divisions of rivalrous and nonrivalrous goods and excludable and nonexcludable goods have a built in bias towards private property and economic determinations of value. The whole structure seems geared towards private property as the default with the other categories for cases when private property breaks down. For example, private ownership of roads would be unworkable, so roads become the property of the government and are nonexcludable.
Similarly, the whole framework favors a pure economic analysis, which isn't necessarily how things are considered in the real world. Economic theory predicts that public (nonexcludable) land will lead to a tragedy of the commons, as everyone attempts to maximize their own use of the land to take advantage of the available economic utility. The predicted consequence is that the land will be destroyed by overuse. Here in the real world, public parks are valued precisely because their utility is not maximized. Nearly everyone except Objectivists appreciate public parks even though the measurable utility of the park is near zero.
Music, and information in general, is nonrivalrous. Eugene Volokh developed the example of the well to demonstrate why music should be treated as property. In his response, Lawrence Solum argues that a well is a club good, not a toll good. That is, the well isn't purely nonrivalrous in the same way that music is. Even in a hypothetical example of a nonrivalrous well, we are influenced by our expectations of rivalry (rivalrousness?) and so the analogy to music doesn't hold.
I started thinking about other examples of purely nonrivalrous goods but I didn't come up with a very long list. Roads are clearly rivalrous as indicated by traffic jams. Water and air are rivalrous because of pollution. Even sunlight is rivalrous. If someone sets up a really huge solar panel array, whatever is on the other side will no longer have access to the sun.
The first example I came up with is gravity. Gravity affects everyone and everything, whether we want it to or not. Well, that's just great. Gravity clearly isn't property. There's also no possible way to make gravity excludable. Copyright essentially makes music excludable, so it's hard to draw any parallels between the two.
The second example that came to mind is radio spectrum. Spectrum as licensed by the FCC for radio and television is both rivalrous and excludable, but wireless computer networks are neither. Multiple networks can operate in the same area and can generally additional computers can be added to one of the networks without the networks significantly interfering with each other. Theoretically, there are maximum limits to the number of networks and computers that can be set up in one place, but within my practical experience there are no real limits. My expectation is that the more spectrum is used for point to point communication rather than broadcast communication and the more spectrum which is licensed for unrestricted use becomes available, the more natural it will be to think of spectrum as nonrivalrous.
The behavior of wireless network operators is worth studying. Wireless networks can be set up to be either public (nonexcludable) or private (excludable). A substantial number of networks are public because there's little reason to create a private network. Economics predicts that this will limit the number of networks created, because people will leech off of existing networks rather than create new ones, but the evidence is that anyone who wants access to a network creates their own.
Beyond that, it's worth considering networks which require payment for access. Businesses such as McDonald's have been creating networks and charging for access, but many have been giving free access instead. The cost of a system to charge for access is high enough that many places are deciding to give free access and assuming that the goodwill created by the network will pay for the network. It's not yet clear whether paid access or free access will win out. But one thing is clear. Charging for spectrum (making it excludable) decreases the utility of the spectrum by increasing the costs. This is obviously true in the rivalrous world of radio and television, as indicated by spectrum auctions, but it is also true for nonrivalrous use.
I'm hesitant to make too strong an analogy between wireless networks and music. The costs of a wireless network are low and the costs of music creation are much higher. However, it's clear that for nonrivalrous goods, making the good excludable increases the costs of the good. Copyright makes the cost of creating music and books higher. It's worth asking whether the benefits of copyright exceed the costs, but I'm uncertain of how to measure that.
Legal Theory Blog has a fascinating analysis of arguments for copyright as property. This is part of an ongoing discussion between Lawrence Solum and Eugene Volokh which I mentioned on Sunday. Volokh had proposed the metaphor of a well as a justification for considering copyright as property. Solum reconsiders the differences between rivalrous and nonrivalrous and excludable and nonexcludable goods.
I found this valuable just for the terms common pool goods and toll goods, which I knew probably existed, but which don't get much discussion. Common pool goods are rivalrous but nonexcludable. The tragedy of the commons is a description of the predicted outcome of common pool goods. Toll goods are excludable but nonrivalrous. Copyright essentially converts information from a public good into a toll good. Now that I know what they're called, I can look for more information on toll goods. I'll start just by asking for other examples of toll goods. Anyone have any pointers?
The Free Expression Policy Project has published "'The Progress of Science and Useful Arts': Why Copyright Today Threatens Intellectual Freedom" on the conflict between free expression and copyright law. The report includes good details on the Copyright Term Extension Act, the Digital Millenium Copyright Act, filesharing, and the lawsuits surrounding each. (from Sivacracy.net)
Zug has transcripts of a series of calls and letters to the RIAA, Apple, record companies, and individual bands as the author attempts to pay for an illegally downloaded MP3. This is distinctly on the lighter side of the copyright debate. (from Boing Boing)
Aaron Swartz proposes using cryptography to fix the problems with compulsory licensing. He states that associating cryptographic keys with the taxable products and services used in filesharing would ensure anonymity while allowing accurate counting of media use and limiting abuse of the system. I'm willing to believe that this would be a workable solution, but it fails to address the economic issues of filesharing.
Verizon is appealing the ruling supporting the RIAA subpoenas under the DMCA. The original ruling was a key step in the RIAA's current campaign to sue everyone. The article reports that Sen. Brownback is planning to introduce legislation that would require a pending lawsuit before the the subpoena could be filed. In related news, The New York Times reports that SBC is continuing to refuse the subpoenas. The article reports that SBC is the only major ISP holding out, although executives at other ISPs are also unhappy about the subpoenas.
The Senate has voted to roll back the FCC regulations on television and cross-media ownership. The rollback proceeds to the House and then President Bush, who has threatened to veto the legislation.
A Copyfighter's Musings is thinking about the distinctions between commercial and non-commercial uses of copyrighted works. He points to a paper by Ernest Miller and Joan Feigenbaum which is definitely worth a read. It points out that the word "copy" in "copyright" is in the sense of "text" rather than "reproduction." This is a distinction that has been unimportant until now, but digital technology employs copying at its root, giving copyright holders control over copying leads to all sorts of negative consequences.
Instead, the focus of copyright should be reconstrued as public distribution. This would restore the original intention of copyright and correct current problems with fair use, first sale, and the DMCA on the Internet.
I think there's a lot of merit to this proposal. In a comment on LawMeme, I cast doubts on the ability to distinguish between public and private distribution, but it is more appealing to me than commercial vs. non-commercial uses. One thing I'm concerned about is the fact that the Internet seems designed to facilitate public distribution. I'm not wild about saying to people, "Here's a tool, but if you use it, you'll be sorry." Unfortunately, the other alternatives are compulsory licensing and giving up on copyright on the Internet entirely. Neither is very palatable.
bIPlog presents a new model for the music industry. When I started this blog, my plan was to work on something very similar to what Mary is suggesting. Then I didn't make progress on it the way I intended to and got distracted by writing about copyright and it's all been downhill ever since. But I still think the idea is a good one. The way bands should make money is concerts and merchandise (counting recordings as merch.) and labels should be in the business of promoting the bands. Free (or near free) music on the Internet should be a promotional tool, not competition for the primary business of the record label.
Among all the Times articles yesterday, I missed one. "File-Sharing Battle Leaves Musicians Caught in Middle" (cache) looks at the response of musicians to the lawsuits.
One more thing for today. The FCC has issued a press release (in PDF format) on the new digital television rules. There's no mention of the analog hole or the broadcast flag. The rules set limits on copy protection. Pay per view and video on demand signals can block any copying, cable service must be copiable once, and broadcast television must have no copy protection for signals transmitted through the interface the rules specify. The release states that "the FCC also noted that it will address Digital Broadcast Copy Protection issues in the near future." Digital Broadcast Copy Protection is the official name for the analog hole and the broadcast flag.
The New York Times has been extensively discussing copyright lately. "Suing Music Downloaders" (cache) is an editorial from Friday which states that the music industry needs to change its business model if it wants to survive. In the Week in Review, Steve Lohr writes that "Whatever Will Be Will Be Free on the Internet" (cache). He compares the record industry's battle against file sharing to whack-a-mole and mentions Jonathan Zittrain of the Berkman Center, Lawrence Lessig and Creative Commons, and William Fisher's compulsory licensing plan. The related article, "The Music Industry Reveals Its Carrots and Sticks," (cache) discusses the RIAA lawsuits and amnesty offer. In "Beyond File-Sharing, a Nation of Copiers," (cache) John Leland ties file downloads to plagiarism, counterfeits, and Enron. In tomorrow's paper (already online today. The Internet is so nifty.), "Hollywood Faces Online Piracy, but It Looks Like an Inside Job," (cache) points out that many times when movies end up online, it's the result of an internal leak. And "Crackdown May Send Music Traders Into Software Underground" (cache) points out that file sharers are likely to just switch to services that are hard to track in response to the lawsuits.
I'm actually less interested in the content of these articles than the sheer quantity of them. I guess hundreds of lawsuits will do that. But the more press coverage these issues get, the more general awareness will increase, and that can only be a good thing.
For those who can't get enough of economics and copyright, Legal Theory Blog points to "Deprivatizing Copyright" by Shubha Ghosh. This is long, but it undertakes a significant rethinking of copyright so I hope I can adequately summarize it in a few sentences.
Economics has traditionally viewed copyright through public good theory. Ghosh argues that this is inadequate because it frames copyright strictly in terms of private interests and ignores the public interests in copyright. Instead, copyright should be considered through democratic governance. This recognizes the government interest in creating and maintaining culture as part of democratic society. In this view, copyright is neither a property right nor a government regulation, but a privatization of government power. Ghosh then evaluates several areas of current controversy in this framework, including model code, religious works, the DMCA, the limits on which works are copyrightable, fair use, and the conflict between the First Amendment and copyright. Ghosh generally concludes that current laws and rulings give copyright too much power, because they fail to serve the public interests behind copyright.
I'd be interested in seeing an extension of this work to include file sharing. After one reading, my grasp of the theory isn't strong enough to be able to immediately apply it to file sharing, but I wonder what it would have to say.
Unintended Consequences points to a strong attack on compulsory licenses. Stan Leibowitz argues that compulsory licensing poses many economic problems that make it a poor solution to file sharing. For example, pricing is a major difficulty for ensuring market efficiency, but compulsory licensing completely disconnects the price from the demand, guaranteeing that pricing will be worse.
Of course, his solution is DRM, which I have far less support for.
The question of intellectual "property" has come up again. This time around the focus is on what constitutes property in the first place. The Volokh Conspiracy defines property in terms of the right to use and the right to exclude. Legal Theory Blog responds, taking issue with Eugene Volokh's example of the well. The well (or the water from the well) isn't a public good, as Volokh asserts. Instead it is a club good, in that there exists an optimal number of users. It is therefore distinct from intellectual property, which is a public good. On the whole, Solum approves of Volokh's post.
FurdLog presents a different argument for property. Property, he says, is a way to internalize transaction costs and allows the market to function. Physical property therefore exists to reduce costs, but the entire basis for intellectual property is increasing costs. By now, I'm swimming in economic jargon. As I've summarized it, Field's argument seems circular, but I'm certain that I don't actually understand it, so I can't really evaluate its validity.
Apparently TechTV ran a program called "The Music Wars" yesterday. Wish I had caught it. Fortunately, it looks like it will be rebroadcast on Monday and Tuesday. Until then, comments from various other bloggers will have to suffice. bIPlog has a description from in the audience and Bag and Baggage has a collection of quotes.
Here's a piece of news that I don't want to report, but I feel obligated. BMG is planning to release a CD with copy protection later this month. A significant number of recordings have been released in Europe, but this is largely uncharted territory in the US. I can only hope that there will be a sufficient consumer backlash to deter them from continuing the experiment.