Friday, January 24, 2003

IP Justice and International IP
Former EFF attorney Robin Gross did an interview with Cnet about her new group, IP Justice.
I'm intrigued by the international component of this organization. It's one to watch.

The Economist Parties like it's 1790 ... Sort Of
Mr. Lessig and Frank Field pointed me here.
The Economist obviously gets part of the copyfight. The magazine understands that copyright's scope and length have gotten out of control. But, let's take a look at the last paragraph:
"However, to provide any incentive at all, more limited copyrights would have to be enforceable, and in the digital age this would mean giving content industries much of the legal backing which they are seeking for copy-protection technologies. Many cyber activists would loathe this idea. But if copyright is to continue to work at all, it is necessary. And in exchange for a vast expansion of the public domain, such a concession would clearly be in the interests of consumers."

Of course they have to be enforceable. But why with DRM backed by law a la the DMCA? I'm not quite sure why they're suggesting that here. As discussed in this article, the magazine understands that there needs to be some kind of balance in the law. But, this quote makes that balance sound like "shorter length and fair use rights as DRM permits." I'm not sure this is ultimately the right direction to go in.
A better (but in many ways imperfect) direction to go in:
Condition their copyright protection on providing fair use friendly DRM. And public domain friendly DRM - that is, ensure that these limited terms cannot be extended via DRM. Such a system is suggested here and gels really well with what Mr. Tom Bell has to say. And maybe we could incorporate such a plan into this.
But I'm ahead of myself - I'll get back to all these articles in the coming weeks.

Thursday, January 23, 2003

A Different "Progress"
Well, we've had the debate about "Progress" in the the Article 1, Section 8 Copyright Clause. Now, what does "Progress" mean in this context. Donna does a great job of explaining both sides of it. As alluded to earlier today, I agree with much of what Mr. Bradner has to say.
Don't get me wrong - I'm glad that the ADP will challenge the mandates. But, ultimately, I don't think they'll make things much better. They'll thwart the mandates, but, in the end, I think they'll collude with the entertainment industry to restrict fair use. They'll jointly create tougher DRM. I'm not sure if the free market will sort things out well enough if we've got the biggest players in these industries all working together.
We can hope for two things:
1. The debate over "mandates" takes long enough that people start to realize tough DRM isn't the best answer for anyone involved. Maybe the MPAA/RIAA will have moved on.
2. That the free market really does sort things out well, and that stuff like Palladium isn't as troublesome as I think.

More on Rhetoric
Professor Felten has some good advice.
I'd also suggest using that nice one liner from the Johansen verdict: "no one could be convicted of breaking into their own property." That's intuitive, and it's better than the "lock-picks can be used to break into places, and guns can be used to kill people, but we don't ban them." Because, we do ban a lot of tools like those (in California, bongs are technically illegal. And, you can't buy just ANY kind of gun, right?). I agree that DeCSS shouldn't be banned, but we _do_ ban tools like it in general, so the "you don't ban lock-picks" argument isn't a strong one.
But, when we turn the property picture around, and we make people look at the DVD they own as theirs, rather than the copyright holder's, that helps. People think of their DVDs, their CDs as absolutely their own. They're not licensing it. They know they can't make a bunch of copies and sell them. But they think of the DVDs and CDs as personal property. How could anyone be convicted of breaking into their own property?
It will also illuminate why just thinking in terms of intellectual property as "property" isn't complex enough. Because it's true that the copyright holder has SOME control (currently) over what you can do once you've bought his art (no derivative works, etc.). But, he doesn't control everything you do with it. And most people know that, and they'll see it's a bit more complex than property or not-property, total control vs. no control.

Later: Mr. Dornseif of disLEXia discusses similar issues here.

The Free Market, DRM, and the EFF: a brief critique
[UPDATED: 2-10-03]
[New]
I rarely have anything even mildly critical to say about the EFF. In fact, I respect and praise most of what they've done. But, recently, I've begun to question some of their actions (or lack thereof). Specifically, I wish they would take a clearer public stance on Palladium/TCPA, and I wish they would have done so when the technologies were in the spotlight.

The EFF seeks one main goal in the IP debate: no mandates or regulation. Let technology develop. Let business adapt. Don't create laws to alter the wonders of the free market. Let people buy the types of products they want, ignore the ones that suck, and everything will get sorted out.
But I wonder sometimes: would that really be enough? Say we repeal the DMCA. Say we don't get a digital TV mandate, or any similar mandates.Then, let's say DRM gets better - let's imagine a world where Palladium/TCPA/LaGrange actually work.
Would we be comfortable with that world? Would that world protect fair use or, as Mr. Schoen more accurately puts it, the "public's rights in copyright"? Are those rights negotiable? (That is, are you willing to trade them away for some service provided by a content creator?) Are we willing to trust the market to protect those rights?
Right now, I'm not sure if I would be comfortable with that world. When Palladium and TCPA were first in the spotlight, they certainly worried many people, including myself. We were told that this DRM was stronger than others before it. We saw a lot of heavy hitters - Intel, Microsoft, AMD - with a lot of market power doing something that played right into the hands of the RIAA, MPAA, et al. And, we wondered, "can we trust the market?" Frankly, we were a bit nervous.
Right then and there, I would have liked to see the EFF take some sort of clear stance on these technologies. I expected them to lead the way - to either tell me that I was too nervous or that they would try to handle whatever problems arise. Because Palladium/TCPA was still a hot topic and because the EFF knew more than anyone about the technologies, it seemed like a crucial time to talk to their members/constituents.
Instead, we've heard hardly anything clear from the EFF. What might seem like a nuanced, sophisticated message has come off as confusing and ambiguous. I've read snippets here and there in news articles, but nothing clear. The line "it could be good or bad, so we don't have a position either way" hasn't been that helpful, because it hasn't been spelled out; that is, we don't know how they think it will be good and how we can make sure bad features aren't implemented to consumers' detriment.
Ms. Newitz was right to criticize this at the time; furthermore, the fact that the EFF hasn't done anything since then is rather troubling.
Perhaps the EFF is struggling with their free market stance in this case. They have supported affirmative fair use rights in the Lofgren and Boucher bills, but, as I've discussed, these seem only like half-way affirmative rights. You have the right to circumvent, but, if you don't know how to (or can't easily) do so, do your fair use rights really matter? Maybe it's time to change the debate in such a way that laws go beyond the right to circumvent. Unfortunately, the EFF can't really do that, because they can't suggest mandating that technologies have certain features; no one would take them seriously.
Or, perhaps they've had other fires to put out and, now that Palladium is not in the spotlight, it doesn't make sense to talk about it. That makes sense, but I still think they missed an important opporunity to discuss these technologies. I hope they publish some analysis soon, for their sake and for consumers'.

[Original]
I rarely have anything even mildly critical to say about the EFF. In fact, I respect and praise most of what they've done. But, recently, in their action (or lack thereof), I've begun to question one of their positions.
The EFF seeks one main goal in the IP debate: no mandates or regulation. Let technology develop. Let business adapt. Don't create laws to alter the wonders of the free market. Let people buy the types of products they want, ignore the ones that suck, and everything will get sorted out.
But I wonder sometimes: would that really be enough? Say we repeal the DMCA. Say we don't get a digital TV mandate, or any similar mandates.Then, let's say DRM gets better - let's imagine a world where Palladium/TCPA/LaGrange actually work.
Would we be comfortable with that world? Would that world protect fair use or, as Mr. Schoen more accurately puts it, the "public's rights in copyright"? Are we willing to trust the market to protect those rights? Are those rights negotiable? (That is, are you willing to trade them away for some service provided by a content creator?)
Right now, I'm not sure if I would be comfortable with that world. Furthermore, I think this runs the EFF into some trouble. Embedded within "no mandates or regulation" is "therefore, people can make fair use and even when DRM is there to stop them, we've got DeCSS or some such." Maybe it's time to change the debate around and say, consumers have fair use rights, not fair use defenses, and those rights need to be treated like rights.
If the EFF tries to change the debate in that way, and they, for instance, ask for regulation that would mandate fair use, they'll be laughed at. And I think that's unfortunate for them and for all of us. It will limit what they can do in the short term.
What's more unfortunate, though, is that they haven't really even begun to take a strong stand on DRM. I know, I know - they've had other fires to put out. Perhaps they haven't because, as I said, they might get laughed at. But, when the Palladium story broke in the summer, and they basically had the monopoly on technical info, they should have said something more than "we have no position as of yet, it could be good or bad." Ms Newitz was right to criticize that. Say something. Give me a timetable. Tell me you'll publish something soon. Give me a policy paper. If "no regulation" and "no bad DRM" is a tough spot to get out of, tell us what you're thinking, because, eventually, you'll need to lead the way.
Again, for the most part, I agree 100% with what the EFF does. But, I do hope we hear something on these issues from the EFF, and others, soon.
For my part, I've been looking at some journal articles that deal with these issues. Over the course of the next while, I'll link to what I've been looking at and where I think we should go with respect to these issues.

And more introduction
My goal is to make this blog more about the normative questions about copyright. I think everyone else has covered "what's wrong now" and "what will happen if x bad proposal gets passed." I want to do more "what would we like to see happen?" My goal is to, slowly but surely, through thought and discussion and such, nail that question down. For an example of what I mean, I'd really like to see more of these sorts of threads. I want to talk about the Big Concepts like free culture, commons, etc. - but I also want to get down to the nitty-gritty of "what specific policy do we want employed?" Obviously, the two are connected, but I'd like the focus to stay closer to the latter as much as I can. We'll see if it works out.

Wednesday, January 22, 2003

Say goodbye to privacy
Let me get back to this whole Verizon ruling.
First thought: whatever happened to due process?
Second thought: what is the RIAA going to do with the people they subpoena? Will they sue them? Will they warn them? Will they try to force the ISPs to shut off their service?
In a way, this is what we've all been waiting for, right? We've been saying, "Don't sue the technology manufacturer, go after the actual infringer." If this particular KaZaA user had some decent evidence against him, I'm not sure I'd have a problem with these sorts of subpoenas.
And there's the rub. So far, supporters of P2P technologies, including myself, have been a little smug about asking the RIAA to go after individuals. We know that it's probably pretty cumbersome to do so and that it's probably not a very practical strategy (from both a resources and a pr standpoint). We knew that people could still keep pirating music without a care in the world and, in a way, I think many of us were secretly happy about that.
Now, things might start to change. Once the privacy considerations are resolved (I don't know enough to speculate on whether the ruling will be overturned, but I think it will light a fire under the ISPs to support DMCA revisions), we'll have to accept that the RIAA might start using this strategy with some success. It might scare people away from P2P technologies, and it's the RIAA's legal right to pursue this strategy. What effect that will have on mobilizing the public, or developing P2P with encryption technology built in, I don't know.

The Rhetorical Gap
Doc Searls wrote a great blurb about the rhetorical problems that the consumer-interest side has in the digital copyright debate. I think he's dead-on.
I also am dreadfully afraid that the rhetorical gap is one we'll never close. Jack Valenti has used the same description of digital piracy for the last five years; look up some interviews with him, and I bet you 8 out of 10 of them use the "digital is to analog as lightning is to the lightning bug" metaphor. It's quick, it's easy, it makes intuitive sense to most people. That's what matters to most people; it's crucial that they understand what you mean immediately. To explain why Valenti's statement is accurate but doesn't necessarily imply increased piracy (or piracy of high quality copies) takes awhile - too long, I'd say.
Now, the consumer-interest side also has some points that make intuitive sense. Being able to make back-up copies of CDs or DVDs, that makes intuitive sense. But I wonder what it will take to make that intuitive reaction to the spirit of the DMCA so powerful that it strikes the fear of god into people. Will it take strong DRM (ie, Hollings bill or Palladium) to make people realize that fair use is actually important to them? Sure, we're making progress into raising public awareness. But I feel like, no matter how good we are at explaining the issues, it's going to take some crisis to change things. Then, the public will be asking questions, looking for answers. And they'll eventually find their way to the EFF, to the Berkman Center, and others.
And, as far as Congressmen go: maybe this will wake up ISPs, who actually have some cash (crucial to making any political point these days) to throw around.
I'll have more on this soon, including a link to my interview with Valenti.

Introductions
So, I suppose I should start this whole shebang by introducing myself. My name is Derek Slater, I'm 19, and I'm a student at Harvard. I'm not quite sure when, but sometime before now, I got wind of all this MP3 business and this crazy DeCSS stuff, and I couldn't quite make sense of it. So, I began writing and reading and such, bought the original Diamond Rio, and was hooked. Not just to the technology, but to the idea of these new digital media technologies, and all their potential for, well, being cool. I love studying, discussing, and writing about digital media and all the legal ins-and-outs. Last summer, I worked at the EFF and now I'm an affiliate at the Berkman Center. So, I figured I'd give this whole blog thing a try, too.
This blog will mostly focus on questions I have about the future of copyright with respect to the Internet and digital media. There are a lot of court cases and new bills out there and most of them seem horrible. They seem like more ways in which the copyright balance has run afoul. I have a lot of questions about how to rewrite that balance: how can we protect fair use? Can we do that and allow for strong DRM, ie Palladium? Should we look to more radical proposals? Or just let the market decide?
Mostly, I've got questions - hopefully, some of the time, I'll have some answers. Or maybe you do. I'd love to hear them.
I'll also post some general musings about the latest news and throwing links up. For pure news, look to the blogroll - consider those your dessert, and I'll try to be the nice cup of coffee to tide things over.
And, I'll also post on whatever I want - generally, Internet-related, but who knows?