Wednesday, February 12, 2003

Moving Day!
A Copyfighter's Musings has moved to: http://blogs.law.harvard.edu/cmusings

Why did I move to the blogs-at-harvard site?  A couple of reasons:
1.  To support the project.
2. Because this Manilla is way better than blogger. I hope to put the categories and stories feature to good use eventually.
3. My own RSS feed! (thanks to voidstar for the initial one)

So, please change your address books, blogrolls, RSS aggregator, et al!  The new RSS can be found here. And, if you want to visit the old site and its archives, they're still there at http://cmusings.blogspot.com.
Thanks to Dave Winer, John Palfrey, and Donna Wentworth particularly for getting me involved in this project

Unique, But Not Alone
It's important to remember that the blogs@harvard initiative is unique, but not alone. Sarah Lohnes, an educational technologist at Middlebury's Center for Educational Technology, was nice enough to remind me of that today. She noted that the Center administers a server for educators and technologists interested in weblogs. And, like any good blogger, she sent me some links:

eBN: the Educational Blogger Network
Weblogg-ed
Seblogging
[alterego]
Barbara Ganley's Writing Across the Arts class blog
Will Richardon's high school journalism class

So much to learn! I'll be checking these out - hope you do, too.

And, to Seb, who wrote:
"What really suprises me is the fact that the folks who are now celebrating the Harvard initiative obviously never used Google to take a look who is already out there. Is it so hard to string together a search request with a combination of "weblogs", "learning", "education", etc.?"
That's a fine criticism. But, relax, we're getting there, we're not ignoring you - we've only just begun.

More on Dave's Live Session
Frank Field has posted even more thoughts. He makes a good point about "shoehorning" the competitive aspects of undergrad work (grades and such) with the collaborative aspects of blogging.
Certainly, the class I bring up below is an anomoly - it has no tests, and the response papers aren't graded. Most professors don't do it that way and, as Frank points out, that's going to make it more difficult to figure out the mechanics of using blogging as part of a curriculum.
However, I do think that most professors are going to like the idea of using tools to encourage some forms of collaboration. It's not really a "clash of cultures," I think. Many will want to give it a try, just as they're trying the message board type tools Harvard already gives them. More generally, they'll do it for some of the same reasons we have small group sections in large classes, or small group seminars. They want collaboration - we just need to give them the tools that will make it easy for them to do it. We need to expose people to blogging, and let them run with it. If they don't like it, fine. If they do, great.
Frank is still dead-on in saying that that much strategic thinking has to go on. The question is: how do we expose them to it? How do we make it as easy as possible for blogs to be useful and effective at Harvard? Again, my first thought is, integrate it wherever similar, less efficient tools are being employed. But, we'll have to go beyond that at some point. More on this as thoughts come to me.

Tuesday, February 11, 2003

On Dave's Live Session
Today's session with Dave Winer was a blast. I am grateful to everyone who came; it was really quite something. If you weren't there, Donna's got the outline - check it out.
So far, Frank Field's got the best response. After reading the last bit ("the weblog can help to foster the digital equivalent of the late-night dorm bullsh*t sessions where much of the true benefit of the college experience comes - campus-wide!"), I immediately thought of how helpful weblogs could be at large universities like Harvard. I'm never going to meet everyone here Harvard - I'm never going to even know they exist, probably. Imagine what it's like at Berkeley!
A couple of notes of my own:
1. Donna's got the right idea when she talks about "pry[ing] [Harvard] open" and creating the "opportunity for the novice to converse meaningfully with the expert." I'd love to see professors get into blogging, sharing their insights through that medium with everyone who cares to read. I also see particular benefits for professors using blogs within classes, to help facilitate out-of-class discussion and thought.
2. I want to point out a class which made me think of blogs as an extension of response papers (even if you're not at Harvard, you should be able to follow that link and at least access the syllabus). This class has weekly response papers, responses to other people's papers, and responses to the interviews with the class' guests. Everything except the responses to the interviews go up on the web for intraclass access. It's all about people throwing up snippets of information, reactions to what's going in class. The professor, Brian Palmer, said that all of these assignments were meant to generate a democratic, communal learning process. It feels a lot like blogging, in a way.
3. And, as we noted at the meeting, it is hokey. But, honestly, so are most of the Big Ideas that go along with blogging and its myriad potential uses. If not hokey, they're idealistic, or philosophical abstractions, or "good in theory", or some other accurate-but-subtly-pejorative description. Sometimes these descriptions get lumped into the New Economy Myths pile - all of those thoughts about the Internet that, often, started with "democracy will never be the same" or "communications revolution" and ended with a dead dot-com.
But, those myths aside, some of those dreams about what the Internet could accomplish, and, in particular, what blogging can accomplish, still feel possible; they seem like Big Ideas worth working for, even though they're currently just idealistic, sometimes hokey, dreams.
Take this whole Blogs@Harvard initiative. The potential benefits! It could change so much! Come up with all those dreams you have about it, and compare them to what the present looks like. If you don't feel just a little silly for thinking such change is possible, well then I'd say you're not dreaming big enough. But I'd also say that, given what we know about blogs right now, let's take all that hokiness, all that idealism, all those dreams, and run with it.
4. I'm not saying that's a great way of selling it to people. Most people won't buy into those dreams immediately. They'll see "hokey" and walk away.
That's why I suggest getting blogs involved in small ways, in the classroom in particular. If blogging is similar to some of the discussion tools used and response paper formats used currently, let's see if we can get some people to use blogs instead. Let's try to get people aware of blogs in the first place however we can. Let's get them thinking in that mode. If they don't like it, fine. But let's try to give them the tools and see what they can do with them.

More on "A Full, Fair, and Feasible Solution"
As I discussed below, Bennett Lincoff, "the former Director of Legal Affairs for New Media at ASCAP," passed a very interesting compulsory license proposal around the pho list. I've now had a chance to read it, and I'd like to build on previous suggestions and note what others' have said.
First, two key flaws:
1. Why does this plan just deal with music? It will not fix the digital dilemma for movies (or publishing, or video games, et al). I don't see any reason why this couldn't be extended to movies, and I don't see why similar market failures in that industry are different.
2. As Temple Law Professor David G. Post writes in "His Napster's Voice" in Copyfights: "We all heard ... about the coming of the 'celetial jukebox' .... Most people ... pictured this in Library-of-Alexandria terms: there really would be some big box....[It turns out] The network is the jukebox."
Lincoff's plan really doesn't get this. He notes that music will need to be tagged so that one could know which songs were transmitted and thus who to give royalties to. Lincoff suggests that all songs be tagged by the music "service operators," for "they select the works to be made available for transmission and operate or control the servers from which these transmissions originate."
Today's file-sharing doesn't work that way. There is no big box, no centralized "service operators." Napster, KaZaA, Blubster - none of them work that way. No central authority selects the works that will be transmitted; the users do that. So, unless Lincoff is saying that no one will want to share files in a P2P setting like today's because they'll have these other legal options, his proposal doesn't really fix the problem. (And, if he is suggesting that, I think he's dead wrong; people like the experience of sharing with other people, looking through others' library of songs to find new artists.)
What's more, he asserts, "Finally, the statutory license fee must contain rates for members of peer-to-peer file sharing networks as well as other online communities that provide the means for their members to transmit covered works. For this, a flat monthly fee per member may be appropriate. Music use reports would still be required." That's all he says directly about P2P sharing networks. Why a flat monthly fee, he doesn't explain, really. Frankly, I'm not quite clear on how such services would be able to do the tagging.

Lincoff notes that "a separate collective should be established for the online transmission right"; it will be separate from ASCAP, BMI, et al What this collective will actually look like, I'm not too sure. Lincoff does a good job of noting the compromises that will need to take place between music publishers, music labels, and "service operators." He acknowledges and discusses how difficult it will be to come up with the stautory license. What I want to know is: how do we form this rights collective? Who runs it? Stephen Hill, who commented on the article, mentions that "there is no mention of the costs of operating the collective and how they will be assessed on members. This is a contentious issue with existing rights collectives and needs to be wisely and carefully designed."

Kevin Marks noted that Lincoff suggests taking a true census of what's been transmitted rather than statistically sampling, as Fisher's plan would call for. His tagging method, matched with his idea of "service operators", would make music companies much more comfortable with this idea. The music industry wouldn't want to lose any money because of poor sampling.

Lincoff does a great job of outlining the problems with DMCA/CARP and all the associated licensing problems. He clearly and carefully outline how the DMCA/CARP process is too burdensome, pointing out specifically how a pay-per-play model is inferior to a percentage-of-revenue model for transmitters.

Monday, February 10, 2003

Compulsory Licenses for P2P?
Found this on the pho list:
"A Full, Fair And Feasible Solution To The Dilemma of Online Music Licensing" by Bennett Lincoff, "the former Director of Legal Affairs for New Media at ASCAP, where he developed the organization's Internet license agreement that authorizes Internet performances of the copyrighted music in ASCAP's repertory."
Here's the basics:
"Congress should create an online transmission right for musical works and sound recordings. This new right would replace the now-existingreproduction, performance and distribution rights in these works for online purposes only....
The online transmission right should be subject to a statutory license and administered by a single rights collective on behalf of all rights holders of musical works and sound recordings.
Rights holders and service operators must cooperate in the development and deployment of a uniform rights management system for monitoring which
works were transmitted and by whom. To this end, rights holders would identify the works in which they claim protection. They would also provide a technological means for marking individual works and tracking them when transmitted online. For their part, service operators wishing to qualify for the statutory license must ensure that they only transmit properly marked works and that they keep track of the works they transmit.
In addition, a flat monthly license fee would be charged for members of peer-to-peer file sharing networks and similar online communities wishing to avail themselves of the statutory license.
Royalty distribution would be based on a full census of licensed transmissions. In this way, royalty payments would correspond precisely with online transmissions and they would be made only to those rights holders whose works were actually transmitted by licensed services. Disputes regarding royalty distribution could be settled either by voluntary agreement or by arbitration."

After just skimming parts of it, I've got a couple immediate questions: is this aimed solely at people who put out their music as part of "rights collectives'? That is, how does this plan work with individuals who put out their music independently?
And, why does he only replace those particular rights in copyright? Why not derivative works too?
And what about open source programs not run by any single entity? How could they qualify for the statuatory license?
More comments here.
(Ah, Kevin Marks and others had similar questions on the pho list).

We Blog in Packs ...
...and we get busy in packs, too.
With the arrival of Dave Winer, some interesting changes are afoot here at Harvard (and also here at this blog). News on that later, as well as your normal copyfighting content.

Clearing Something Up
After having a brief exchange with Cory Doctorow about Palladium/TCPA, I decided to revise something that I'd written earlier about how the EFF has responded to those technologies. I don't think I was clear before, and I put the emphasis in what I'd written in the wrong place. Both the old and new versions are here.

Sunday, February 09, 2003

Should Copyright be About Copying?
The Brookings Institute has a new piece by Mark Nadel called "Questioning the Economic Justification for (and thus Constitutionality of) Copyright Law's Prohibition Against Unauthorized Copying: §106." I haven't gotten around to reading it, but I hope to post some comments on it in the future. It looks to have some interesting bits. While focusing mostly on the justifications (or lack thereof) for section 106, it also has a short description of how 106 could be revised; it seems to build on Jessica Litman's approach to non-commercial copying (see: Digital Copyright) and offer a few other possibilities.
It's worth noting that the EU's catching on to this.
But will all the economic analyses and legal arguments in the world be enough to change the law? Here's hoping - more on all this later.
(BTW, found this article at Berkeley's awesome bIPlog.)

Friday, February 07, 2003

Responses to Valenti
When I first wrote my brief commentary on the interview, I was just trying to cover the basics. Thanks to the blogosphere, I can now post these responses, which flesh out some important issues. I am grateful to all of you who have read the article and especially to those of you who have taken time to write about it. It’s been great fun for me.
So, here’s what I’ve compiled from people responding to the Valenti interview. First, a short list of blogs; then, emails I’ve received. If you emailed me and wanted your stuff published and I didn’t, please tell me (I’ve tried to keep it to stuff explicitly about the interview). If I have posted your stuff and you didn’t want me to, please tell me.

Blogs:
Blogdex list(most of the blog commentary can be found using this list)
Jenny Levine
Seth Finkelstein
Slashdot.org

Mark Newton writes:
Valenti says:
"Right now, any professor can show a complete movie in his classroom without paying a dime--that's fair use. What is not fair use is making a copy of an encrypted DVD, because once you're able to break the encryption, you've undermined the encryption itself."
That's misleading even if you cast it in a good light. His first example is legitimate fair use; his second example may or may not be fair use depending on the *context*, but he's painting it as an unconditional act of piracy and expecting readers to let him get away with it. There are all kinds of fair uses which require "break[ing] the encryption" on a DVD. For example, including extracts from the DVD in another production for the purpose of criticism, satire or social comment. Most DVDs use a combination of Macrovision (so you can't copy extracts onto videotape) and DeCSS (so you can't extract them directly from the MPEG stream), making this perfectly legitimate fair use application impossible without breaking either the Macrovision or the CSS protections.
Valenti has set the goalposts of this discussion exactly where he wants them to be, because it's easy for him to argue against the wholesale copying of an entire movie on fair use grounds. But fair-use is more subtle than that, and we've traditionally trusted the courts to make judgements about that sublety because copyright owners and copyright users tend to be too self-interested to make the judgements for themselves. DRM fundamentally changes that balance, by putting the entirity of the decision-making process in the hands of the copyright owner, none in the hands of the consumer, and (by changing the argument from "Is this fair use?" to "Are you authorized to break the copyright protection") out of the court system.
[Later, Mark added:]
I'm surprised that "the other side" hasn't responded in kind -- The classic way to turn that tactic into a compromise is to argue an equally extreme counter-position which highlights the absurdities of the opponent's point of view, and drives reasonable observers towards a middle road. But there's so little organized opposition at the moment. The war3z crowd sucks legitimacy out of "our" arguments by behaving as if piracy is a god given right, a few academics write books which are largely read by people who are already converted, and life goes on. Meanwhile people like Valenti and Rosen continue to parrot their vast library of 5-second soundbites over and over again, so often that even if you *attempt* to apply reasoned thought to the issues, you have to start by clawing your way through irrational sludge before you can even start.
Phil Agre has written lots on the use of hyperbole to quash debate by confusing those who would otherwise oppose you. There's a lot of that going on here.

Nathan Holmes writes:
I had to inject a couple of notes, though, to refute one of his comments.
"JV: You have to have copy prevention mandated by the government sooner or later because otherwise everybody's not playing by the same ground rules. For example, the standards of my cell phone have to be mandated by the FCC because everybody has to operate off the same standards. Also, all railroad tracks in this country are the same standardized width."
The FCC did not mandate any of his cellphone standards, with the exception of the frequencies they were allowed to operate in and the power they were allowed to radiate. (Perhaps also the modulation schemes, though I don't believe so... I'd need more research - I've forgotten most of my RF stuff as it pertains to cell networks.) There's some serious evidence that the lack of government-mandated standards actually has helped the US build a better cell system than Europe (where the controlling government bodies did mandate the technology). [Read this] [f]rom the mouth of an ex-Qualcomm engineer himself.
Also, the government never mandated the gauge of any railroad in the US, with the exception of the famous, and so-called "Transcontinental Railroad" (Omaha-San Francisco), built by UP and CP under government contract. Aside from that, companies were free to choose whatever gauge they preferred. The Denver & Rio Grande, among others, used several thousand miles of 3-foot line throughout Colorado and Utah during their heydey, because it was cheaper to build and could respond to emerging customers with greater speed and less risk (from less infrastructure investment in possibly shaky customer bases). A hundred or more of such narrow gauge railroads existed, and as who the real customers were became more clear, those branches were standard-gauged to provide easier interchange with the rest of the world. The rest were abandoned (or a few preserved as historical artifacts), as they usually had lost most of the traffic they were built to carry. Nowhere in these stories do you see the government. It's all about the market being tapped and basic economic theory driving the business. Both are about optimizing the companies' resources to best meet the demands of the customer while minimizing the cost to the businesses. Jack, as usual, is grasping at figments of his imagination and missing horribly.
[Later, he added:]
As for cellular phone networks, I should point out that the FCC does mandate what technologies use what frequency bands, and also licenses where towers/transceivers can be placed. That's just out of pure common sense - it prevents interference between networks, and it's hard to build a multi-band transmitter at those frequencies. Neither of these limited the technology in any way - vendors operating in those frequencies (especially Sprint, with their own flavor of CDMA "PCS" network) are reasonably free to innovate as they see fit.
The US had 20 different track gauges in 1861. However, due to the building of the Transcontinental in the late 1860s to 4' 8.5" (per the Pacific Railway Act of 1864), most railroads built after that conformed to the gauge so as to interchange equipment and generate sources of revenue. Any change of gauge meant that freight had to be transloaded between cars compatible with the railways they would be travelling over - increasing the cost and transit time significantly. The Civil War also helped consolidate gauges, as the Union army chose 4' 8.5" as the gauge for military equipment. Captured Confederate lines were converted to this gauge for two reasons - they could interchange with the North to bring down supplies to the front lines, and the southerners could no longer use their equipment on them.
That said, the D&RGW continued to operate the narrow gauge (3 foot) network in Colorado until the late 1960s, transloading freight to standard gauge D&RGW operations in Alamosa, CO. There was a market, and they took advantage of it. Likewise, the White Pass & Yukon hauled ore out of the Yukon territory to Skagway, AK, on a three foot line until 1982. US Gypsum continues to use a three-foot railway to haul gypsum from their mine to the connection with the standard gauge UP branch at Plaster City, CA. Just to name a few - there are more still in existance, but none as notable.

Scott Hunter, the CEO of Exploit Systems, which is trying to constructively use P2P for everyone's benefit, wrote in:
"Mr. Valenti is probably right when predicting the demise of the music industry. How can an industry that pushes away its customers with spoofing, decoying and interdiction of digital files in p2p file sharing networks ever convince those customers of anything after such aggressive, anti-consumer policies. The results are being seen in the bottom lines - revenues continue to suffer and the vastly acquisitive community known as almost 150-million p2p file sharers, continues to grow at a clip of 3-5 million new users per week.
Maybe it is time to stop trying to set up bear traps all over the digital store to mash the legs of your customers. How about instead, when they ask for a file, you don't tell them to leave the store and go elsewhere, but service them right there, take them to the proper aisle, so to speak, show them the way to the cash register, take their money and then try to sell them something else? Some will always steal, but many will buy. It works for the rest of the world.
I've just never understod the logic of having so many in-market customers at your finger tips and not setting up the kiosk to sell you wares post-haste.
Mr. Valenti and the movie industry should continue to learn from the mistakes made to date, or the MPAA might have something to really fear from 60 million, then 160 million broadband households. But, play your cards right, treat the consumer well, sell them what they came to get instead of sending them away and that equals millions more in revenues into the coffers of the copyright owners.
At the end of the day, the customer is still king."
[Later, we discussed what Exploit Systems is all about. Here are some excerpts:]
"We get content to the people not by denoting it with a gold star (which is tantamount to putting one buoy in a lake filled with them, easy to swim around), or having a closed cdn like Centerspan that few people are using because they have no content that anyone really wants. We use software, not servers to restock the shelves and move the legitimate offering in front of the end user doing the specific search. And we only do it for those contracting us to do so. So, the music biz wants to continue to play hardball and watch their revenues and brand erosion continue to decline, fine, let people share it in p2p all day long. But, the video game folks, the software folks, the adult entertainment folks, they all want to get you to buy their stuff and p2p is perfect for them, because they are used to promo versions, lite versions, lower cost versions, trial versions/subscriptions, etc.....
Exploit Systems doesn't want to see free content to go away. We want, alongside legitimate offerings, free giveaways, gift with purchase, purchase with purchase and other similar offerings, as well as independent distribution where the copyright owner wants viral distribution of their content with no regard for anything but spreading the love and building a community of their own, so that then they can ask you to pay.
We want these p2p communities to be just that - communities, with multi-functions, department stores with free splashes of perfume and free makeovers or free samples (price club) as you decide what to buy, because the bottom line is, the longer you spend time in the store, the more likely you are to buy something - all retail studies show this time and time again. Thus, yet another reason why p2p should be embraced - these customers spend a lot of time there and come back time and time again, all month long. So, how can we capitalize on that, not ruin the experience, but bring an equilibrium to the space that allows everyone to live profitably, with some stuff free, some for sale and a legitimate marketplace that doesn't rely on drm or encryption as the holy grail, but rather, that same desire that bonds us as a fan to a rock band or a film or a video game or a software application."

Paul M. Johnson writes:
“As far as cell phone standards are concerned I think Mr. Valenti just doesn't have a good grasp on current reality where we have 3 different 'standards' CDMA (Verizon, Sprint PCS) TDMA (Old AT&T Wireless network) and GSM (T-Mobile, Cingular and in some places AT&T Wireless). Of course the reason all phones is Europe are GSM is because the EU dictated it.
As to rail gauge, well Mr Valenti is just demonstrating his lack of historical knowledge. Circa 1860 there were 9 different rail gauges in use in the United States. It was only the increasing demand for interregional traffic that lead the railroads to standardize on a common gauge. (i.e. the free market decided the gauge....not a government mandate). Oh and in other parts of the world some countries still haven't completely standardized on a gauge for all tracks. Notably England which still has narrow gauge rail tracks.”

Scott Best writes:
Most figureheads like Jack just deal the rhetoric when asked this question: all content creation businesses, music and movies alike, will go out of business if we don't pass some really good laws really soon.
But I think this rhetoric is disingenuous for a substantial reason that is often overlooked. That is, the ability to easily pirate DVD's (ie, super-speedy broadband) may not actually impact film revenue much at all. As context, let me say that the MPAA members chose to get into DVD's because the incremental revenue (DVD sales versus lost movie attendance because of piracy) was worth it. I think even if film-piracy increased by 100x, it will continue to be worth printing the DVD's (which are sold at, guessing, 90-percent margins?).
Back to the question, though: "how will this really affect content creation?". The effect I think this inevitable future will have is more encouragement towards "serial stories" like Harry Potter, Lord of the Rings, or the Terminator series. In these cases, piracy of the earlier chapters undeniably helps fuel the movie-draw of the later chapters. And my understanding is that the revenue a film will generate is a power-law curve when looked over time. For example, the Two Towers passed $400M in worldwide revenue after being just 1 month old; the record gross of all time is Titanic at $1.4B *including* DVD sales. In this model, piracy of the older chapters can only help you: it drives the power curve of the subsequent release, while cannibalizing the trailing edge of the DVD sales the following Christmas. I think which the studio's would appreciate more is self-evident.
So does this power-curve revenue model exist for music sales as well? Probably not as much: movies have grand theatrical release events that are well before the DVD release, and it's fashionable to see the film with a large group as soon as possible after the release date (yes, guilty: I did see both FoTR and TTT on their release dates).
But if we agree that music piracy isn't going away, and I think we all agree on that, a more interesting question is perhaps how can the music industry drive a high-peaked power-curve on their music releases *without* abandoning their current marketing model of total channel saturation? Put another way, is the lack of an ability to affect a power-curve revenue model similar to major film releases actually the fault of the marketing strategies of the music studios themselves?

Russ Nelson writes:
I did a web of web browsing, and it seems that standard gauge was never promulgated by law, ever. In the UK, Parliament passed a law recognizing standard gauge, but that was because most everybody was using it. In the US, the Lincoln administration specified standard gauge for the intercontinental railroad it was paying for. Initially it had specified California gauge, but was switched to the more standard gauge. Railroad companies that switched seemed to have switched simply because it made sense, not because of any law. Sorry, Jack, the facts are against you. But we already knew that, right?
http://www.railway.org/railroadgauge.htm
http://www.nrhs.com/spot/erie/
http://www.trains.com/Content/Dynamic/Articles/000/000/003/011gsqfq.asp
http://www.andrewsraid.com/grebuilt.html
http://www.deltatechinc.com/milestone.html

Thursday, February 06, 2003

Cluetrain Thesis 95: "We are waking up and linking to each other. We are watching. But we are not waiting."
Berkman Center Executive Director John Palfrey mentioned the new Harvard blogs initiative at his blog today. It got a nice mention at the Washington Post, too.
John says:
"We're convinced that blogging, evangelized by Dave [Winer] and others here, can help spread the wealth of knowledge from school to school; from student to student; and from elsewhere into Harvard and vice-versa. The Web, e-mail and other basic Net-based apps generally have had this effect to some extent. But not in a wholly satisfying manner. I wouldn't bet again blogs making the next big step forward."

I would love to see Harvard "wake up" in this way. As a student, I would love to use blogs to engage other students and professors from all around the university. And, after yesterday's experience with the blogosphere, I am even more excited about what a fully blogging Harvard would be like.
This would be particularly important for Harvard's current curricular review and recent curricular reforms. Basically, students like myself find out about changes after they've been made, and we generally find out about them from The Harvard Crimson, not the university itself. Our student government has hardly any communication with the student body; they're essentially like high school student government, in that they yell at you to vote for about a week and then stay the hell away from you. The format of the UC's webpage has finally been updated, but it still has no useful information (and still doesn't reflect changes in UC offices). It's a joke.
I would love it if, when curricular changes are debated, the UC wrote something on a blog, advocating their position(s). And I'd like it if I could read administrators and professors opinions. I wish the debates would take place in the open in an easily accessible way. Perhaps blogging could help make that happen.

More on Professor Fisher's Plan
Just in case you haven't seen it, there are two recordings of Fisher talking about his plan: one at the Center for Internet and Society at Stanford, and another from the Future of Music Coalition conference. I hope to listen and comment on these soon.

Circumvention and Affirmative Fair Use
Is being able to circumvent DRM enough to protect fair use? How many people need to be able to circumvent easily for fair use to be protected? 50%? 90%? 100%?
The Boucher and Lofgren bills bills have some affirmative fair use rights and a right to circumvent. And, I wonder, is a right to circumvent enough to protect fair use? If most people can't circumvent the DRM anyway, aren't we losing some of the benefits that we could get from new technology? If most people can't circumvent the DRM, aren't the Lofgren and Boucher bills only half-way recognitions of affirmative fair use rights? And, what do we lose from that? (As you can tell, today I feel full of questions but not answers)

Let's consider what the future might be like considering whether DRM will be circumventable:
If DRM is not circumventable for most people, then we lose out on fair use. We lose out on some of cultural benefits of the "rip, mix, and burn" culture (similar to what I discussed yesterday with P2P).
If DRM is circumventable, then, won't we end up with some of the same conflicts we have today? If it's not easily circumventable for most, we still end up with not everyone being able to "rip, mix, and burn." But, even if it's circumventable for a few, won't those people be able to circulate their copies on P2P services? Won't we still have mass piracy? People say that if the content industry simply provided a good product at a reasonable price, mass piracy wouldn't happen. I wonder if that's actually true. If it isn't true, and you can still circumvent the DRM and everyone simply gets the content for free, what then?
Well, they could go after all the file sharers, but we know that's inefficient and has all sorts of problems tied to it. Or, they could adapt their business model to the fact that people want things for free.
If that's the end point, then why don't we simply create a copyright system based around that assessment? It would avoid all of the warring over fair use and piracy and suing tech companies and file sharers that we're about to witness. One could say that, well, the market just needs to work itself out, and content dinosaurs don't take well to change so there has to be some conflict. Stilll, I wish we could avoid that somehow.

What I've said here is too speculative; it's not a sound basis for policy - I'm just trying to think out loud here. I keep feeling like copyright, as it stands right now, will not suit the new era and, even if it does, we'll forgo a lot of benefits unique to the Internet, P2P, etc. Or maybe I am just impatient, and the market actually will sort of everything out.

Wednesday, February 05, 2003

More Valenti
So, the article has been Slashdotted. (How bizarre!)
Given that I'm now getting letters from people about the article (and I thank all of you again for doing so), I'd like to just mention that I would love to hear from anyone who's got comments or wants to make their own rebuttals to Valenti's arguments. I know my arguments are a little deficient in some places (I don't know enough about the history of cell phone standards or railroads to really get into that) - anything you've got to say would be great to hear.

Protecting Fair Use By Reinventing Copyright (Part 2b in a Series)
Today I want to talk a little more about rhetoric in the context of P2P, and how that will be important to reinventing copyright.
There are now a couple of threads about how we should talk about copyright, particularly so that the public can understand their rights in copyright. Doc's got the latest here and I made some comments earlier.
I want to get at a slightly different problem. I know Ernie said "forget file-sharing" and focus more on music industry malpractice. Still, I'm not sure we should "forget file-sharing."
Often, the current copyfight debate revolves around eliminating the DMCA or government mandates. We focus on keeping the government out of technology development. When it comes to P2P, we say, "Well, content creators just need new business models that will make consumers want to pay for their music and move away from P2P, or they'll come up with DRM that basically makes P2P impossible." But we make no provisions for making sure "file-sharing" still exists in its current (or a similar) form.
I wonder: is P2P file-sharing something we need to protect? I don't just mean P2P, I suppose. I mean the entire "rip, mix, and burn" culture of which P2P is a part. There are incredible social benefits to everyone being able to share what they like, share ideas, express themselves through the act of sharing. There are benefits to people being able to have access to information quickly, easily, and cheaply - P2P enables that (whereas a DRM model might not). And, even though artists could decide to release their music over P2P services, maybe we should make it easier and more viable (economically) for them to do so; that could spur untold creativity from artists who normally go unnoticed.
The cultural benefits of P2P are hard to define; I'm not quite sure how to do it yet. I'm certainly not sure how to do it in a way that would make good rhetoric. But I do know that I'd like more attention put on what sort of copyright regime we want, rather than simply what sort of regime we don't want. If we're going to do that, we can't "forget file-sharing." We need to decide if we want to capture all the benefits of P2P, or let new DRM-based models spring up that might not capture those benefits. If we do choose to protect P2P, we're going to need to be able to express it in a way that doesn't sound like "we want your stuff for free!" They can't sound as broad and fluffy as my comments above, either.
Luckily, some people are already doing this. Professor Lessig does a some of the work in The Future of Ideas. Creative Commons is helping too.
Key to our rhetoric will be plans like Neil Netanel's or Professor Fisher's. They go beyond saying why P2P is important by presenting policy solutions for the public and consumers; furthermore, both plans, as Netanel puts it, stand between the shoals of "digital abandon" (basically doing away with copyright) and "digital lock-up" (copyright regime backed by strong DRM). Maybe you disagree with these particular policy solutions, but I still think it's important that we have some sort of policy solution to go along with why we want to protect P2P.

Tuesday, February 04, 2003

I thought I was just speculating about biometrics and DRM
Then I read this (from Copyfight) and this. Put it all together.
(I know the swipe-card chair is just an art exhibit and I know it's not an example of digital rights management as we normally think of it with music and movies. But it's a solid exhibition of what sort of bizarre control is possible with new technology; it can be extended to those other types of media. Further elaboration here.)

Later: About the inventor. Worth a read.

To be fair...
Here's an article called "Responses to the Copyright Crisis" - including micropayments, tips, and microrefunds - by EFF board member Brad Templeton.

Who's not excited about Janis Ian?
Well, I guess I'm not.
Don't get me wrong: I think it's important that the artist's voice in this is heard, and I think people should know that the record companies don't necessarily act in artists' best interests. I applaud Ms. Ian's efforts.
I'm just not that excited by it.
I'm not sure how much artists like her add to the debate any more. It doesn't push us any farther than Courtney Love was 3 years ago or Chuck D was 4 years ago.
The argument "file swapping is actually better for business" doesn't hold a whole lot of water for most people. Why? Well, if non-commercial file-swapping leads to increased commercial sales, that would seem to mean we should just abolish copyright altogether, right? (Or, at least abolish prohibitions on copying and distribution.) And that just strikes me as not too feasible or logical. Even if it is, it won't be taken seriously in the debate. Janis Ian will be treated as the exception and then brushed aside as some sort of radical. She comes off sounding like someone who thinks copyright itself should be done away with. If you're going to imply that, you better have some substitute.
(And, please, don't say musicians can be paid through tips and "micropayments." Then you'll really sound like a nutter. I'm not saying these systems can't work (even though I have many doubts); I'm just saying that, if you use them, you'll get laughed out of a debate.)

Monday, February 03, 2003

An Interview with Jack Valenti
In December, I had the pleasure of interviewing MPAA President Jack Valenti for the Harvard Political Review. A simple registration is required to view the interview.
I've written some brief comments and reactions to go along with the most interesting bits (interview indented, in red):
"Jack Valenti: I wasn't opposed to the VCR. The MPAA tried to establish by law that the VCR was infringing on copyright. Then we would go to the Congress and get a copyright royalty fee put on all blank videocassettes and that would go back to the creators [to compensate for videocassette piracy]."

Have they tried to do the same with P2P? If the MPAA is not opposed to the VCR, I assume they're not opposed to P2P per se. Why not just ask for a copyright royalty fee? (Several people have suggested such a thing. UPDATE: note that that article suggests a levy to allow for file-sharing, which is different than just levying a royalty fee but still criminalizing sharing. After reading Seth Finkelstein's post, I realized I should clarify this. But, the question still stands: why not just ask for a copyright royalty fee? I think Netanel's levy idea is better, but it's interesting that the MPAA hasn't tried their old strategy.).
"I predicted great piracy. We now lose $3.5 billion a year in videocassette analog piracy. It was a 5-4 Supreme Court decision that determined VCRs were not infringing, which I regret. As a result, we never got the copyright royalty fee, but everything I predicted came true."

So, the VCR is like the Boston Strangler? "Everything I predicted came true" - I really didn't expect him to say that. I expected him to just say what he says next: "analog is different than digitial." I didn't expect him to continue to act as if the VCR costs the MPAA a lot of money.
"Now the difference between analog piracy and digital piracy is the difference between lightning and the lightning bug."

Do a google search for that phrase, or some variant of it. As I discussed here, it's his bread and butter.
"The music industry now is suffering nine, ten, fifteen percent losses in revenue. When you compound that over the next three or four years, the music industry is dead. I don't see a future for it. After awhile, who's going to produce it?"

Now, I wonder how successful this rhetoric is. Do people think he's exagerrating or not? Do people believe there's really not a future for music?
"It now costs about $350,000 to produce a CD; it costs $80 million to make and market a movie. Big difference. The MPAA could live with the fifteen million homes that currently have broadband internet access. But when sixty million homes have broadband, plus the people on fast connections in universities, making it so easy to bring down a movie in minutes..."

If the Verizon decision holds up, I expect the MPAA and RIAA to come back after the universities, to really make them monitor their networks. It's already starting to happen at Harvard.
"HPR: The MPAA has backed several bills mandating copy prevention technologies. Critics have lambasted these bills for curbing consumer's "fair use" rights, including the ability to make back-up copies. How can we balance the interests of consumers and the movie industry?
JV: What is fair use? Fair use is not a law. There's nothing in law."

This kind of caught me off guard. I didn't expect him to completely deny the existence of fair use. I know he's read this. I guess he was just trying to exaggerate, because he quickly contradicts himself:
"Right now, any professor can show a complete movie in his classroom without paying a dime--that's fair use. What is not fair use is making a copy of an encrypted DVD, because once you're able to break the encryption, you've undermined the encryption itself."

Kind of peculiar restatement of what he meant.
"HPR: Even if breaking the encryption is for a legitimate purpose, to make a back-up copy?
JV: But you've already got a DVD. It lasts forever. It never wears out. In the digital world, we don't need back-ups, because a digital copy never wears out. It is timeless."

Sure, he's got a point (even though DVDs do not last forever; they scratch, they break, they get juice spilled on them by toddlers). I guess a better question, from my end, would have been, "Why should the movie industry get to determine what 'legitimate purpose' means?" They say making a backup isn't legitimate. Many others disagree with that. The question is: how do we determine who's right? Mandates? Open market negotiations? Something else entirely? Maybe this?
So, let's see his answer:
"HPR: Why do we need government mandates for copy prevention technologies?
JV: You have to have copy prevention mandated by the government sooner or later because otherwise everybody's not playing by the same ground rules. For example, the standards of my cell phone have to be mandated by the FCC because everybody has to operate off the same standards. Also, all railroad tracks in this country are the same standardized width.
If you don't have tightly focused, narrowly drawn mandates, either regulatory or congressional, then, if I'm a maverick computer maker in Taiwan, I can say, "Hell, I'm not going to play by the rules. I'm going to do it so everybody can copy." Then Toshiba and Sony and IBM can say, "Well if he does that, then I want to do it." We always operate on the fact that everybody needs to know that there's a 55 mph speed limit. That's called a standard."

There you have it folks. Railroad tracks need to be the same width, ergo, mandated copy prevention. It's just that simple.
Valenti misses a lot of things here, especially obvious factual differences. The key difference is that we don't need to mandate DRM necessarily to fix the problem - it can get sorted out by the market, perhaps. Moreover, tech mandates limit innovation and consumer uses in ways that could (and, I think, should) be avoided. Speed limits, however, shouldn't be negotiable, for obvious reasons.
He also misses how a diversity of standards is sometimes a good thing. Lots of people creating, say, different standards for digital music (or even for DRM!) leads to more competition and ultimately better products.
"JV: I think lobbying is really an honest profession. Lobbying means trying to persuade Congress to accept your point of view. Sometimes you can give them a lot of facts they didn't have before.
Money, however, is negative--it's corrupting the body politic. Even though money might be the most self-conflicting force in politics today, there are too many loopholes in this McCain-Feingold bill. All these lobbyists in town who are callous to what the bill stands for are going to exploit it. They'll turn to state parties and special interest groups and the money will keep pouring in. It's a tragedy."

Now this surprised the hell out of me. The MPAA throws millions of dollars at Congress each year. Apparently, Valenti considers that a tragedy.

Quick Links
Formerly of Public Knowledge, John Mitchell has struck out on his own, and, today, published this piece: Automated Antitrust Violations. When I interviewed John for my Eldred article, John focused a lot on the lack of copyright power in "private performance" and how DRM can change that.
I've wondered about how biometrics could someday factor into that. Imagine a TV screen with facial scanning capabilities - you put in your DVD, and then someone sits down next to you - the screen now prompts you to deposit 2 dollars in your eMoney account to allow someone else to watch the film too. I don't know how feasible/desirable for media companies this would be, but it's something I've thought about.

And I must go to this.

Friday, January 31, 2003

More on Balkin, DMCA, and Eldred
Earlier, I questioned one of Professor Balkin's Eldred+DMCA=unconstitutional arguments. Though I still think I'm technically right about what I said, I think I see what Professor Balkin might have meant (but didn't say explicitly).
The key is not the anti-circumvention provision that I focused on - it's the anti-trafficking. If you can't distribute the device that helps gain access to public domain works, you probably can't get access. Thus, this provision enables unlimited copyright by making it difficult to circumvent access controls. Eric Eldred's DMCA exemptions brief brought this point to my attention. (Also, the EFF makes the same argument about 1201(a) and the public domain that I did - but, in its brief, it asks for an exemption just in case.)
But is this enough? Is it enough to say that the provision makes it difficult but not impossible to gain access to public domain works? Is saying that the provision implicitly enables unlimited copyrights enough?
I don't know. Given what past judges have said about the DMCA, I doubt they'll quote the "alter[ing] the traditional contours of copyright protection" part of Eldred. Instead, I think they'll go right to "[t]he wisdom of Congress' action ... is not within [the Court's] province to second guess." Then again, I'm not a lawyer or a professor - that's just my intuitive response.