Reason.org has a piece called The Myth of Media Deregulation about Congressional hearings on the consolidation of radio stations, and this caught my eye: "In the past five years alone, an emerging alternative to mainstream radio -- Internet broadcasting -- was nearly smothered by new rules imposed not by the FCC, but by the Copyright Office. Some last-minute legislation softened the injury, but still left many Netcasters with legitimate complaints."
Copyright, spectrum and wi-fi questions and regulations, backed by the same big media that say they want deregulation of the media, are, according the Reason, having the effect of choking new media choices. And Reason speculates that the Congressional hearings won't address the issues mentioned above that have a direct effect on media consolidation.
KaZaa, more popular now than Napster ever was, has sued the RIAA, "...asserting that they have 'obscenely' abused their copyright powers." This follows a ruling two weeks ago where a California judge ruled that Kazaa could be pursued in the state.
The Economist recently wrote about the copyright wars, concluding "...Certainly, the content industries are likely to experience the most upheaval. They may be able to retard the growth of copying on the internet for a time, but they cannot hold back the advance of technology altogether. This will undermine their existing business models, based as they are on print, analogue broadcasting and the sale of physical products such as compact discs. Even if the "total copyright protection" scenario sketched above prevails, content providers will have to reinvent themselves."
"...an evocative cultural snapshot of the nation over the last century, saluting equally the words of presidents and generals, the artistry of jazz and classical masters, and the raw energy of rock 'n' roll and hip-hop rebels," for preserving important recordings by Bob Dylan, fireside chats with Roosevelt, Billie Holiday and Martin Luther King. This repository includes some online recordings, and is similar to their other collections preserving films, maps, manuscripts, etc.
They also include directions for preserving your old sound recordings, which seems like a good idea, considering how many things are out of print yet still copyright protected, meaning that unless the LOC deems a work one of the few they can afford to preserve, you might turn out to be the archivist. The recordings -- 50 in the first batch -- join the 25 films per year added, many of which are under copyright protection, causing the LOC to face conflicting missions to preserve and make available important cultural works, while respecting the copyright protections of these works. "In the meantime, David Sanjek, a member of the preservation board representing Broadcast Music Inc. (BMI), summed up the library's challenge in unearthing recordings this way: 'If a recording is made and you are not able to hear it, does it really exist?'"
Declan McCullah of Cnet recently wrote a piece on an obscure law called the No Electronic Theft Act (1997) which could be used soon by the Justice Department to prosecute P2P file sharing pirates. Several US Senators sent a letter last summer to the DOJ asking for this, but not much came of it. However, according to the article, the RIAA and the Business Software Alliance have been active with the DOJ in pursing this. Apparently there have already been some successful convictions using the NET Act, but not for P2P piracy. While the odds of being the test case are low, it may be that someone somewhere soon is the target. Of course, if this happens, the NET Act won't be obscure for long.
On a related note, a consortium of music sellers including Best Buy, Hastings Entertainment, Tower Records, Trans World Entertainment, Virgin Entertainment and Wherehouse Music has decided to collaborate to sell digital music online. So there may soon be better alternatives to P2P piracy on the way.
Timothy Phillips responds to Ed Felten's post on Eldred and the language of the common's argument as mentioned in the bIPlog earlier. Felten proposed changing the debate to reflect the difficulties of copyright, but Phillips believes those arguments are about the complexity of the current system, not the problem of the duration of copyright protection. He thinks ideas are only public property, and therefore, the public needs to be more diligent about protecting the public domain, rather than letting the copyright industry frame the argument as a private property issue. Also, he points out the language the Supreme Court used in Scott Paper v. Marcalus, where they said, "...the consuming public at large shall receive the benefits of the unrestricted exploitation..." about patents. He believes the principle should hold true for copyright protected works.
The Economist has an opinion piece, A Radical Rethink, on crushing creativity in the digital age, saying the battle over copyright, "could yet determine the future character of cyberspace itself.... Copyright was originally the grant of a temporary government-supported monopoly on copying a work, not a property right." Those seem like fairly powerful metaphors, used before to insist that the Internet remain open and free.
Websense.com, which helps businesses such as Microsoft and Nokia manage employee internet use, published a study (press release), "Music: Peer-to-Peer File-Sharing Web Sites Grow 300 Percent, Driven by Swapping Movies, Games and More." In other words, games, software and movies are a large percentage of downloads (often very large files), which Websense estimates take place largely in work places, because only 17% of American households have highspeed home connections. Websense suggests limiting P2P application use by network administrators at work.
If this sort of traffic were blocked more at offices, would it mean employees would go home and order DSL or cable? Would they purchase privacy software to limit spyware, to prevent tracking of clickstreams at home? Websense reports that 64 percent of companies don't do any monitoring of employee P2P downloads so it doesn't appear to be a big issue yet. But Integrated Information Systems, an Arizona company, settled a lawsuit out of court for a $1 million with the RIAA over employee stored MP3s.
The Register, the NY Times, the BBC and CNet are reporting the formation of a new coalition, the Alliance for Digital Progress, which includes Apple Computer, Microsoft, Dell Computer, Cisco Systems, Hewlett-Packard and Intel, as well as some consumer groups and think tanks, in an effort to oppose Sen. Fritz Hollings' bill (S. 2048), which has the support of Disney and other movie studios, to set government standards for digital rights management. The ADP prefers market solutions to the DRM and piracy problem. The bill was introduced last term, but has not yet been reintroduced in the 108th Congress.
So the idea according to the ADP is that, as with the photocopier, the VCR and DVDs, Hollywood will benefit if it steps aside to allow the market to solve the DRM technology problem, so they can create a new and bigger market in P2P sharing of digital content than currently exists in the DVD market.
Two artists, Pierre Huyghe and Philippe Parreno, bought the exclusive rights to an animated character named Annlee from a Japanese agency selling stock manga characters. They paid a little over $400 for Annlee's copyright and then let their friends use her character in their artworks. Then, they "killed" her off, forbidding future uses of her likeness by transferring Annlee's copyright to Annlee herself! Mickey must be jealous. He has to do the bidding of the Disney corporation, constantly appearing on their mugs and t-shirts. But Annlee, the first cartoon character to hold her own copyright, has been liberated from the grind of commerce and mass-production.
CIO.com has an article called Integrating America talking about how difficult it will be to get 22 federal agencies, with 170,000 employees, using 500 applications, and an unknown number of stovepipe systems to work together in a single system. Among the problems: multiple standards, multiple ways of thinking about the data reflected in system design, multiple security systems, gigs of data traversing limited bandwidth, the difficulty of finding people good at labeling, categorizing and organizing information.... One problem not explicitly addressed: the freshness of the data they are trying to gather and analyze.
CIO says it would not be surprised if the Department of Homeland Security fails or only partially succeeds, and yet they are hopeful the DHS is somewhat successful because of 9/11.
Doc Searls on Eldred talks about different conceptual views of the copyright battle --legal, political and metaphorical. The last is most interesting: "Watch the language. While the one side talks about licenses with verbs like copy, distribute, play, share and perform, the other side talks about rights with verbs like own, protect, safeguard, protect, secure, authorize, buy, sell, infringe, pirate, infringe, and steal."
Searls thinks that if the side on the commons wants to change minds, it will have to rethink the use of the word commons, and its associations to other like words, which may make people uncomfortable, and contribute to a hazy understanding of why innovation through reuse of common or community assets is important. Larry Lessig responded in agreement.
Ed Felten goes further, suggesting that public domain arguments end up sounding like freeloaders wanting to use other's work for free, where instead a more effective argument might include how entangled copyright law has become, where even record companies complain that clearing copyright for online sales is onerous.MORE...
It may prove difficult in the short term to reduce the term of copyrights which have already been extended. Also, the forces pushing perpetual copyright are strong. However, there is another route, which may be easier, employing the concepts of Aikido -- moving with the strong force and redirecting it in a better way. Rather than fight to reduce the maximum term of copyrights, consider that existing and future copyrights could be taxed annually just like real estate as long as they are kept from the public domain. This uses a market-based approach to limit the external costs of copyright monopolies.
(This is an interesting idea and a good write up, so I included it in the main blog. Corrected a couple of typos, but otherwise it is as he published it. ~mary)
By now anyone reading this knows the good guys lost in the Supreme Court this week. A good place to start reading about this is The Berkman Center for Internet and Society where Larry Lessig works. You can find links there to news stories and the actual opinions, including the two dissents. His blog is filled with both his own musings on losing, as well as the support and encouragement of hundreds of well wishers.
The New York Times lamented the "end of the public domain" in an editorial today.
Edward Felten on our favorite Law With Unintended Consequences: Now there's a suit claiming copyright infringment w/r/t Garage Door Openers.
So the FCC Chair Michael Powell thinks TiVo is 'God's Machine'. Well this should be interesting. The Hollywood studios think it's Satan. Stay tuned.
Finally the RIAA admits they must respond to this by offering good legal alternatives, in part so that illegal downloading of online music approaches tolerable levels, comparable to shoplifting in stores. "Illegal file sharing has to be driven into the underground by making legitimate offerings compelling," Cory Sherman said. Musicnet, Pressplay, Rhapsody, Rioport and Emusic are mentioned in the article as legitimate online music sites, but it says there are almost no sites offering legal music downloads in Europe.
Fred Von Lohmann makes a good point in an interview with TechFocus: "... in response to the last revolution in distribution, namely broadcast radio and television, copyright owners learned to let go of the need to control and count every single listener and viewer. And it turned out to work pretty well for all concerned."
Ed Felten adds to the discussion that counting watermarks and other current ideas for measuring music downloads are problematic because people will over or under report what they actually listed to and that something like the TV rating system may be a better way of compensating artists for their work.MORE...
Wired has a piece about the Canadian Private Copying Collective (CPCC) which collects CN$.21 per blank CD (pdf), to compensate musicians for the copying, both legal and illegal, of music, though less than half the blank CD's sold in Canada are used for music. Last year the CPCC collected CN$.05 per CD, but are proposing CN$.59 per CD for 2003, plus new fees for other devices like compact flash cards and recordable DVDs. Protests are being waged, especially because the CPCC has yet to distribute to musicians any of the CN$28 million they have collected over the past couple of years. The CPCC says this is a very complicated process requiring payments to as many as 12 entities per song.
The Canadian Coalition for Fair Digital Access, a 16-member group that includes Intel, Dell, Hewlett-Packard, Sony and Apple, as well as Wal-Mart Canada, Costco, Staples, Radio Shack and the Retail Council of Canada has made one of the formal protests to the Copyright Board of Canada because they don't believe consumers should subsidize the music industry, when half the blank CD's aren't used for music. "It's not about fairness at all," said David Basskin of the Canadian Musical Reproduction Rights Agency. "If it was about fairness, these large U.S. multinational companies wouldn't be trying to deprive Canadian musicians of royalties they are legally entitled to."
The BBC reports that a Norwegian Court has ruled against the prosecutors in a case brought again Jon Johansen, the developer of DeCSS decryption software. However, the law in Norway allows prosecutors to appeal within 90 days, so until the appeal window passes, the case isn't really over.
...in the music world, according to a NYTimes article on the trading of bootleg concert recordings. While bands like the Grateful Dead and Pearl Jam allow the free recording and trading of their live performances, it is a copyright violation to do so with any performance where no permission is given. But artists have to object before the RIAA will step in, and as the article says, "Artists who prosecute individual fans for merely indulging in music beyond their official CD's would be about as cool as a Guy Lombardo record."
Live show recordings are typically traded by mail to assure highest quality, but traders and fans meet on the Internet to talk about shows, compare notes and arrange trades. Also, some fans believe they are preserving the legacy of performances, sort of the way heirloom seed traders have preserved heirloom vegetables after the Ag industry standardized food production down to just a couple of homogenized varieties. Listening to a live 1975 bootleg of the Rolling Stones' concert "L.A. Friday" may be a more authentic and vivid experience than listening to a heavily mixed and managed studio recording of the same music "Love You Live," the band's official concert album of that time. Kind of like the difference between eating a Brandywine or Striped Marvel tomato and having a square supermarket tomato.
If you place an unprotected resource on the web, others should be free to link to it. This notion is so fundamental to the web that the digerati were completely flabbergasted when some groups and corporations had the audacity to suggest otherwise.
If you don't want a resource linked to on the web, don't put it on your web server. If you need to have the resource on the web, but don't want to the public at-large to see it, take appropriate steps to restrict access. Even NCSA HTTPd, the mother of all web servers, supports the ability to do this.
With all of this in mind, it was surprising to see this Kuro5hin Op-Ed piece making a sensible argument against linking, where links from large sites may send sudden, huge traffic spikes to smaller sites. It argues the ethics for linking should be different on large "meta" sites like Kuro5hin and Slashdot because they act like lightning rods for web traffic, which can take down underpowered web servers, or, worse yet, cause unexpected large bandwidth fees for small website operators.
The NY Times reports that a DRM switch inside cable boxes allowing control over recording of pay-per-view and other special programs may soon be turned on by media companies wanting to charge additional fees for recording, on top of charging to watch the program at the time broadcast.
Media companies are investing in DRM technologies and companies in an attempt to control where digital content goes, but they may find that consumers feel that all the rules make the product not worth it. And what about fair use? Even commenting on these works by copying a snippet to write about it will be impossible if the copy disappears after a few hours or is locked up.
"You're not buying music, you're buying a key," says Larry Kenswil, president of eLabs at Universal Music Group, the world's largest record company, which offers 99 cent digital singles "...that can be burned to a CD but not copied to certain portable devices, like the Apple iPod. 'That's what digital rights management does: it enables business models.'" But if the business model so favors the business and not the consumer, then what? If you throw a party and nobody comes, is it still a party? What if consumers still think they are buying music?
Or, How to Make Things More Complicated
From the US Justice Department losing Elcomsoft, where jurors in San Jose, CA considered a Russian Company's awareness and intent in selling software the USDOJ believed was in violation of the DMCA, to the Kazaa case where five countries are involved, jurisdiction often emerges as the most critical factor in skirmishes over internet issues. However, the more recent conflicts over jurisdiction have involved distinctions between countries scattered around the globe, and questions of responsibility in locations where often the defendants have no relationships or business.
A round of World Trade Organization talks on how to implement an agreement on getting cheaper pharmaceutical drugs for poor nations ended in failure in December, with the United States rejecting a last-minute compromise accepted by the other 143 member states.MORE...
Copyright protection for many recording artists from the 1950s is about to fall off in Europe, allowing their works to enter the public domain in the EU. This brings up all sorts of issues, like what to do about European import CDs sold at many US record stores, advertising uses of the music and American companies being forced to work with smaller bootleg companies. This particular era of music represents a time when the recording industry went through rapid technological innovation producing recordings far more sophisticated than in the past, both in content and style, and so the resulting 1950s music is far more marketable now.
For more info, see Dennis Karjala's chart comparing copyright protection in the US and the EU for various kinds of works.