Once again, I'm going away for 5 weeks, for summer vacation. Enjoy the summer and check out the blogroll to the right....
But it's not for the RIAA, yet. They're still working on heavy handed measures that ignore the realities of digital media and flat hierarchy distribution in favor of sending cease-and-desist letters (AP) (or htm) (or BBC) to the four Verizon customers (plus one from Earthlink) for file sharing of copyrighted works. As Wendy Selzer mentions, users are entitled to their privacy until they have had the due process proving they are copyright infringers. The RIAA has sent the letters without judicial review. The only review in this case was whether the ISP could be compelled to violate their user's privacy. See the opinion in the case.
However, Donna points to this article from The Phoenix: Privacy, Breaking the Internet Copyright Impasse by Dan Kennedy:
Simply put, the current paradigm encourages both goon-like behavior on the part of the music industry and other content providers even as it rewards larceny on the part of consumers.
"We live today under two copyright regimes: the law on the one hand and reality as experienced by the public on the other.... The Net forces us to confront the contradictions between what the law requires and what individuals do," (Jonathan) Zittrain writes.
Certainly paying a copyright tax in return for the right to trade copyrighted files would be infinitely preferable to giving Entertainment, Inc., the right to snoop into your personal information.
While compulsory licensing may not be the answer, though it has been much talked about, keeping the discussion going in the press about alternatives to goon-like behavior is very much appreciated. Note to the RIAA: we would love it if you would just offer the music at a fair price and in an easy, organized manner, fairly compensating the artists, for digital download.
"If we can find some way to do this without destroying their machines, we'd be interested in hearing about that. If that's the only way, then I'm all for destroying their machines. If you have a few hundred thousand of those, I think people would realize the seriousness of their actions. There's no excuse for anyone violating copyright laws." (from the Washington Post/AP or htm) Sen. Orrin Hatch is Chairman of the Senate Judiciary Committee and the hearing was Tuesday where he made this statement.
So, would your computer be destroyed without a court order or other due process? Without checking to see that the files were actually a copyright violation and not, say, your own personally ripped mp3s from your own lawfully purchased CDs? Or a file with a similar name as that of a copyright protected work, but one that is not another's copyrighted work at all? Like in the Penn State astronomy and astrophysics department case?
Dana Blankenhorn responds that if technology like this were developed it would get out and any hacker could use it to destroy any computer:
The nature of secrets is they don't stay secret long. The bigger the secret, the faster the discovery.... Orrin Hatch would be unable to compute anymore. Neither, for that matter, would I. Neither would you. That (secret, machine destroying) code would spread, not like a virus, but like spam, and destroy the Internet forever. You can "email" Hatch to suggest that he get a regular email address, as well as consider that his idea is unconstitutional.
Lessig comments that Hatch has been swallowed by extremists.
Update 061803: Senator Hatch can be emailed here: email@example.com
Update 061803: Hatch's office has issued a statement about this:
"I am very concerned about Internet piracy of personal and copyrighted materials, and I want to find effective solutions to these problems.
"I made my comments at yesterday's hearing because I think that industry is not doing enough to help us find effective ways to stop people from using computers to steal copyrighted, personal or sensitive materials. I do not favor extreme remedies - unless no moderate remedies can be found. I asked the interested industries to help us find those moderate remedies."
Update 061903: See Ed Felten's write up on this issue.
Update 062003: Orrin Hatch, Software Pirate. Apparently, Orrin Hatch's website is using unlicensed software. D'oh!
Why don't ordinary people get it? Because few understand why the public domain is valuable. Why don't more see why the public domain is valuable? Because today the public domain is over 75 years old. It is ancient history for us, irrelevant to much of ordinary culture.
I don't believe that the public domain is irrelevant to ordinary culture. I think for people who do not think about this every day, the problem is conceptual and invisible. Simply making the problem explicit causes so many I speak with to immediately react in favor of the public domain, get the gravity of the problem. But given that each person needs a simple explanation of the concept in the first place, either in person or by consuming it via a talk or in writing, on a blog, over the 9,000 other things vying for their attention each day, it's going to take some steps to get a critical mass needed to make the problem visible, resulting in a movement that can do something to correct the problem. But much like the environmental movement, the public domain movement can, one step at a time, conquer the same barriers of conceptual understanding. 30 years ago, people didn't think about where their garbage went, or whether recycling was important. I hope it's only 10 years (or much less!!) until people think regularly about where human expression is owned and controlled and when it can be recycled appropriately. I think the issue is visability, verses relevance to our ordinary lives.
1. the court ruled that once a work passes into the public domain, and the work is reused or repackaged under another's name (in this case a producer), the original copyright holder cannot use trademark law to extend copyright.
Scalia said that if creative producers were required under the trademark law to attribute the origin of any uncopyrighted materials they used, it would be difficult. "We do not think the Lanham Act requires this search for the source of the Nile and all its tributaries," he wrote. (Salon)
2. the court reaffirmed the distinction between copyright law, which protects the originality of expression, and trademark law, which protects the public from confusion amongst brands, etc.
"Justice Antonin Scalia said that the trademark law, which is intended to protect consumers from confusion, does not allow creators to claim plagiarism when their uncopyrighted works and inventions are used." (Salon)
3. the court stressed that the public domain is essential for creativity. Fox used public domain footage to make their video, and in turn, when Fox's video fell into the public domain because they failed to renew copyright (their work was part of a category of works that still have to renew verses newer works that are automatically renewed), Dastar then used the video to make its own video, albeit not very different, but also not marketed as being different.
"The consumer who buys a branded product does not automatically assume that the brand-name company is the same entity that came up with the idea for the product -- and typically does not care whether it is," Scalia wrote in the opinion. (Salon)
In particular, this case makes doubtful the claim that IP lawyers sometimes tell their clients, which is not to worry so much about copyright law, because if it fails to protect or the work goes into the public domain, trademark law will protect them. Dastar v. Fox clearly shows this kind of reasoning isn't going to work in the future, and that trademark law cannot be used to support copyright reasoning.
Another take on these issues, Lessig quotes Duke Law Professor James Boyle: So we now know that while the word "origin" in an IP statute must be carefully defined in order to prevent rights-creep that would undermine the careful limitations struck in a statutory scheme, the words "promote," "progress," "limited" and even "author" can be defined any way Congress wanted to even if that upsets the careful balance struck in a constitutional clause, because they are only words in the Constitution, and thus much less fundamental.
Jon Healey at the LATimes has an article on Personal Jukeboxes (htm) where technologies like Muse.Net let "people with high-speed Internet connections listen to the music on their computers from any other computer online" so that a collection of music is not about the bits on a machine but rather a collection of titles that can be anywhere. About 150,000 people use Muse.Net (of Mediacode, Inc.), which "increases consumers' appreciation of music without decreasing their willingness to pay for it" by letting one person access their own collection for about $20.00/yr.
"I just think it does all the right things," Ted Cohen, SeniorVP of EMI said after seeing the technology. "It lets people extend the reach of their music experience without tripping over artists' rights or content owners' rights."
On the other hand, there are security and privacy issues, with Muse.Net: "'You're asking me to register what I own,' Analyst Michael McGuire of GartnerG2 says. In Microsoft's Web services model, the entity that licenses and distributes songs 'knows who I am, what I have and what I'm doing with it at all times, theoretically.'"
In contrast, the NY Times has a piece on the difficulties of downloading (htm) courtesy of Frank Field... who also mentions the iPod/iTunes bundling possibilities; as well as this Miriam Rainsford (who started the Madonna remix project mentioned here before) piece on musicians and DRM:
As a musician I find the notion of using DRM technology abhorrent -- not only because of the risk that my works could be locked up indefinitely by technological means, despite my signing a non-exclusive distribution contract. Under anti-circumvention laws such as the DMCA and the forthcoming EUCD, it could well prove impossible for me to share my own work with my friends, or to distribute DRM-controlled content to another publisher.
But aside from the legal and practical aspects, I believe DRM to be against the spirit of music-making. Music is made for enjoyment -- and it is very difficult to create music without an atmosphere of freedom.
And Jenny at the Shifted Librarian talks about another idea to rent iPods filed with music.
ComputerWorld reports that peer-to-peer file sharing applications are unfortunately linked in people's minds to piracy of one kind or another. The article speculates that because most P2P apps are used for piracy purposes, companies and others have not explored and used P2P for more legitimate purposes, but increasingly sophisticated P2P apps are being developed that in future might relieve the burden on file caching companies so that individuals will spread freeware, collaborative work projects and other legitimately shared files. This kind of distributed sharing and collaboration is likely the future of Internet based work for knowledge sharing and development. So the success of certain kinds of P2P may hold back or delay the development of other P2P technologies, due to DMCA related fears of prosecution, as well as the development and adoption of information technology based work practices that rely on P2P applications.
Donna points to Pam Samuelson's The Constitutional Law of Intellectual Property After Eldred v. Ashcroft. She also points to Mary Bono's (she succeeded Sonny, and passed the Sonny Bono Copyright Term Extension Act (pdf)) statement that succeeding Hilary Rosen at the RIAA would, according to Bono's chief of staff, "be her dream job". Rosen responded, "I love Mary Bono; she's great."
Does it feel operatic to you? Or maybe like a Greek Tragedy (it is tragic, losing extraordinary human expressions because a few are so selfish and dogmatic that they force the loss due to their extremist stance on copyright protection when moderation will do). We may soon be sprinkling dust from classic movies not preserved in time to save them, but still copyright protected and therefore locked up (thankfully a few legislators are reconsidering this). When do we get to the chorus and Teiresias? Oh yeah, right after we clear the rights.
Valentina Pasquali has written a special report for the bIPlog on the Sonny Bono Copyright Term Extension Act's (pdf) harmonization of US copyright terms with the EU Copyright Directive terms, as well as the arguments made in the case and the opinions (pdf) regarding harmonization in the Eldred case.
Valentina was an undergraduate student this year at UC Berkeley, visiting just for the one year from university in Bologna. She had a blast in the Berkeley and told me she regreted having to leave when we had lunch two weeks ago. She also spent a year in Michigan as an exchange high school student, so she comes to the bIPlog with a good command of English. But I'm really impressed with her ability to write about Eldred and copyright issues considering that Italian is really her first language. It was fun having her contribute to the bIPlog and I wish her well, and hope she keeps contributing!
On Wednesday, July 2nd, an artist reception will take place at SFMOMA Artist Gallery, Fort Mason, Building A, from 5:30 to 7:30 pm. Gallery hours are Tuesdays through Saturdays 11:30am to 5:30pm.
Artists: Bill Barminski, Ray Beldner, Brian Boling, David Byrne, Enrique Chagoya, Heidi Cody, Michael Hernandez De Luna, Eric Doeringer, Kieron Dwyer, Tom Forsythe, Natalka Husar, Packard Jennings, Ai Kijima, Kembrew McLeod, Negativland, Aric Obrosey, Noel Tolentino, Diana Thorneycroft, Clare Rojas, and Tom Sachs, Laura Splan, Wally Wood, and Andrew Jeffery Wright
Mickey Gas Mask, 2001
Latex rubber and cannibalized gas mask parts
Lisa Rein has posted her video of Ed Felten's and Larry Lessig's talks at the Berkeley DRM Conference (2/28-3/1/03). Ed's talk is on how black boxes interfere with effective public policy and Larry's is about the Commons. Hopefully Lisa will add more video of the conference. Transcripts are also up on the conference website.
On KQED (Bay Area, 88.5 fm) tonight, 8pm:
The Aurora Forum from Stanford University: "Public Life in a Wired World," a program moderated by linguist Geoffrey Nunberg with Laurence Lessig, Center for Internet and Society at Stanford Law School, and Pamela Samuelson, MacArthur Fellow and founder of the Samuelson Law, Technology and Public Policy Clinic at UC Berkeley.
Or listen to the audio archive if you live elsewhere.
Ed Felten had a great post the other day on Safire's column on Lifelog (htm) (brought to you by DARPA), and the Memex (bIPlog previously talked about the Memex), privacy and context, as well as potential conflicts of interest for bloggers and expectations for private conversations.
The DARPA LifeLog program is trying to build a smart Memex. LifeLog is supposed to be smart, so that it can figure out the context of actions, so as to help you recall more accurately and naturally....
Also, Joi Ito has a comprehensive report on International Research on Privacy for Electronic Government (cover sht; all the report is in pdf) on Privacy Enhancing Technologies in Japan, the US, Canada and Europe. From the US section:
Privacy Risks in Entertainment Technologies
A little noticed but potentially quite significant area of privacy concerns relates to the rapid deployment of technologically sophisticated entertainment systems, especially related to television broadcasting.
Most consumers are unaware of the degree to which their personal viewing activities may be subject to recording, tracking, analysis, and even commercial distribution use by broadcasters and related firms. The opportunities for this sort of data collection are in a number of areas.
With both types of TiVo units, the amount of data that the units are capable of collecting regarding users' interactions is extremely comprehensive. In fact the unit can literally record and log every action that a user makes including every press on the remote control, every program watched, how long programs are maintained and how often they are viewed, and virtually every other aspect of users' viewing and operational habits. Since the system also includes the capability of automatically watching for particular programs based on titles, actors, keywords, and other parameters, it can collect a great deal of data regarding the interests of viewers.
This section of the report includes ReplayTV and DishPlayer too. And it goes on to survey how DRM systems, which are intended to restrict copying and theft of copyright protected materials are increasingly being used to collect very detailed personal usage data, not just in the present or for the long-term, but also retrospectively.
Wired has this: DOJ Net Surveillance Under Fire about the Patriot Act, your web activities and your email.
Apparently, Lawrence Lessig & Mickey Mouse, Carrie McLaren & Public Enemy, Don Joyce & U2, Larry Gross & Star Wars, Andy Warhol & Mona Lisa, Ezra G & DJ Akiko Hot Rocks & The Rolling Stones, Pretzel & Critters are in it, but I saw Ed Felten and a couple of others in the trailer.
And check out James Grimmelmann's cool post on the Raider's of the Lost Arc re-mix. Apparently Spielberg liked it and so signed off on the recent screening. But it's still under copyright and James gives the issues a thorough once-over. He concludes:
Harry Knowles has been saying that the remake should be a special DVD extra on the Indiana Jones DVD box set. That sounds like a good idea.
At the same time, don't you find it just a little incongruous that, according to the Copyright Act, these fellows could be ordered to pay out $50,000 each and report for a year in prison?
So you can be a creative genius, and edit something extraordinary, but if you do it with something still under copyright protection, you can edit yourself into the clink. I'm starting to agree more and more with some folks' thoughts that copyright is really about distribution and not about copying. At least the public domain still exists for these guys.
JD Lasica on Clear Channel acquiring the FCC.... It's hilarious. (I'm assuming you already know about last Monday's vote outcome.) But he also points to the Macomb Daily story on the FCC (which bIPlog also reported):
Big Media Got FCC Rule Change Old-Fashioned Way. For a government agency that ensures Americans have an array of media voices from which to choose, the Federal Communications Commission sure has spent a lot of time listening to a small circle of pals, says columnist Chad Selweski.
Media giants spent $2.8 million wining and dining the FCC over the past eight years, paying for travel and luxury accommodations, and even chauffeurs.
Maybe it's cynical, but the rules changes approved last week don't seem that different from the previous set when you consider how poor US distribution channels for independent thought and expression already were. Lessig's thought that the "Internet as Savior" is a dying concept is right, especially when you consider Barry Dillers' thoughts (from D as summarized by Denise Howell) about it:
Audience member, to Diller: You've been outspoken about media concentration. [More.] What's the impact going to be if control gets tighter?
Diller: You're referring to the FCC's June 2 rulemaking, and loosening restrictions on cross-ownership. The issue is not about consolidation, it's this: there are 5 entities that control 90% of what you see and here. What we need is sensible, wise regulation that will make it so you can still hear independent voices. It's not about size, but when you have size you have to have careful oversight and regulation or you get in trouble. If these entities control the broadband types as well, they'll sit on the tollbridge. The size issue can't be met by just tossing everything out.
In other words, the distribution channel is the key. Unfortunately, this view of the Internet as Savior seems more prevalent outside the blogosphere, amongst the general public and in the big media, which still uses this metaphor a lot even though the situations they describe are often much more complicated.
Jon Healey and Jeff Leeds at the LATimes are reporting (htm) that Yahoo, Microsoft, AOL, Viacom and Amazon are all planning to offer new music services a la iTunes, possibly by the winter. So it looks like the music industry is coming around, starting to see online downloading for the commercial opportunity it is:
Music executives hope the new players will help the industry reverse its sales slump.
"I think the whole thing is a revolution," said Doug Morris, chairman of Vivendi Universal's music operation, the world's largest. "Yahoo has an enormous number of people coming through all the time. Amazon sells a ton of content. MTV certainly is an enormous bull's-eye for people who like music. This is an amazing moment."
"The technology has destabilized us, it has hurt us," said Doug Morris, the chief executive of the Universal Music Group, a unit of Vivendi Universal and the largest of the five major record companies. "But now it's going to take us to new heights."
It's about time. But will they still go after students who make Google-like applications (taking their savings accounts)? It seems so punitive for an industry that should be putting its efforts into more positive ventures like those mentioned above. In the meantime, Eric Olsen of Blogcritics talks about (htm) Pearl Jam's exit from Epic:
...can the Pearl Jam organization get enough recorded music out there through its Web site, fan club and independent distribution to make a go of it without major label distribution?
The dinosaurs will be watching closely.
Just wanted to let readers know that as school has ended and the summer begun, bIPlog may be a little less active, due to travel, conferences, etc. But I encourage you to look at the blog roll, and check in for some updates. The next three days I will not be available for posting.... but I'll be back shortly.