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.

Thursday, January 30, 2003

Protecting Fair Use By Reinventing Copyright (Part 2a in a series)
Let's get down to business with Professor Fisher's plan. I can't get to everything in one installment, because there's going to be a lot to say.
Let me start with my intuitive responses:
How will this ever become this country's policy? Fisher's plan, while much better than the policy I discussed before, is much less politically feasible.
Only now are we starting to see the entertainment industry and tech companies start to pursue a more hands-off approach. There's the so-called "truce" and the ADP. I can't even believe that these companies have gotten that far away from seeking strong copyright protection (in the case of the tech companies, I sometimes thought they'd never really unite).
And now we want them to do what? To give away their copyrights? To let some government bureaucracy handle it? To roll the dice on an "estimation" of use? TO make it easier for unsigned artists to compete? To tax their industry?
Now, I'm not saying that's what Professor Fisher's plan entails - but that's how other industries will hear it. And that doesn't bode well. It'll take a lot of convincing.

So, what would it take for them to listen? Or, for them to be forced to listen?
Somekind of crisis - more serious than the piracy we've got now, and more serious than the reduction of fair use we have now. I don't know what that would be. What would make the entertainment companies feel completely powerless? What would make consumers feel angry enough to write letters, send money, and protest?

With that out of the way, I should say that I love the plan. I know that there are all sorts of devilish details - but I still love it; I love it in that way where I want to believe it would work. I want to believe that Professor Fisher's got a lot of numbers worked out and will make it an easier sell. I want it to be not so easily dismissed by The Economist.

Let me now turn to some of the details some have already discussed. Get the links to these at bricoleur, here and here.
1.Seth Finkelstein wondered how we would get an accurate count. As others have noted, we don't have to. The idea is to do some sampling and extrapolation.
2.Seth also asked if this plan would require a ban on non-watermark compliant devices. As Prof Felten pointed out, we probably wouldn't have to worry about that, because people want their favorite artists to get counted. Then Felten described the potential for messing with the watermarks to create overcounting. Theoretically, the watermarks could be secured in such a way that it would be too hard for MOST people to do this, right?
How about this side of the problem though: What happens when someone, for example, takes a music album and syncs it with a movie, and distributes that as a single file? Would the watermarks for BOTH be retained? Or, if I sample a rock song to make my new rap album? Could watermarks _accidentally_ be removed from products?
I don't know a ton about the tech here, so I'm just guessing.
3. Also, on banning "non-watermark compliant devices" and the counting-as-privacy-invasion that Seth discusses: I don't think the count would happen at that level. It would happen higher up, like at the ISP level or the P2P service provider's level. All of the info of who downloads what could remain perfectly anonymous.
4. Re: taxing currently free Linux players - I don't think this would have to happen either. I guess you could say not having the tax apply to free players gives them an unfair advantage - but the pricing of certain products hasn't stopped people from buying them rather than getting them for free with all software. There are still vendors of DVD players and such.
5. As for the "pay per view" society argument, I'm with Mr. Macgillivray
6. Questions of my own:
When/how long after creating would creators no longer be eligible for payment?
Counting how much each "use" is worth seems tricky. If we "distribute revenue from the taxes in the proportion in which the various products are accessed," we surely have to distinguish between different types of art and how each type is used and how much time was invested into making that art. Each medium (movies, music, literature, et al) will have to be treated separately. Furthermore, we'll have to distinguish between types of art WITHIN each category. We'll have to distinguish between poems and novels, short films and feature films, et al. And, even then, the distinctions would still be rough. How reasonable redistributive rates will be developed is wholly unclear to me. (Note: I should say that I talked with Professor Fisher about this problem, and he tried to talk me through the solution - how the rates could be negotiated and determined by the new government agency meant to handle this operation. But, I'm still not sure I get it exactly how it would work; I'm sure he'll have something to say about this in the book.)

That's just the start of my analysis. I also need to discuss this, a similar, more politically feasible, less optimal scheme.

I'm Still Trying to Figure This Out
In my update below, I posted this statement by Judge Patel, the judge who ruled on Napster; it's from when she urged a DoJ investigation of MusicNet. I want to post this last sentence of it again, because I'm still trying to reckon with it:
"The doctrine [of copyright misuse] does not prevent plaintiffs from ultimately recovering for acts of infringement that occur during the period of misuse. The issue focuses on when plaintiffs can bring or pursue an action for infringement, not for which acts of infringement they can recover."
Doesn't this make the doctrine somewhat powerless? It seems like copyright misuse becomes a stall tactic.
I guess it's not in these two cases.. In these cases, the defendents became immune to infringement claims on the basis of the lawsuit. A 99 year copyright enforced by copyright was deemed copyright misuse - so was preventing interoperability.
But, let's looks at it in the area of fair use. Say copyright misuse for strong DRM could be used as a defense against suits brought under the DMCA. Would the copyright - and thus the DMCA - be enforceable if the copyright holder released a patch that weakened the DRM? Could you then recover damages under the DMCA? If the only thing copyright misuse examines is the "when" and not the "which", is it useful?
If anyone's out there reading, I'd love to hear what you think.

Wednesday, January 29, 2003

Reporting From the Front
This statement has been posted all over Harvard's website, and in a huge ad in The Harvard Crimson:
"If you download or distribute movies, music, or other copyrighted materials from the Internet without the owner's permission, you are breaking the law. You are culpable even if the source of the material is a Web site that appears to be offering a legal and inexpensive service. You bear the risk since the Harvard network is provided to support academic activity, not the transmission of illegally acquired movies or music. Penalties are severe; you may lose your network privileges, you may be disciplined by Harvard, and you may be criminally liable.
- Harry R. Lewis, Dean of Harvard College"

Is this spill over from the Verizon decision? Or from Jack Valenti's post-speech visit to President Summer's office? Valenti mentioned that he was going to have it out with Summers about piracy.
I can't really get angry about Dean Lewis for doing this; I do expect Harvard to protect the privacy of its students (which the Verizon decision seems to impede), but I don't expect them to protect people who are using the network for illegal activity.

Lemonade? Maybe.
Yale Professor Jack Balkin tries to explain how the DMCA could be contested because it enables unlimited copyright terms. Frankly, this seems much weaker than his previous post about attacking the DMCA using Eldred.
He writes, "However, the DMCA has no time limit. It makes it a crime to interfere with copyright management schemes even after the material protected passes into the public domain."
Is that so? Look at the DMCA: "1201(a) No person shall circumvent a techno-logical measure that effectively controls access to a work protected under this title." The other clauses say similar things.
Are public domain works "protected under this title?" IANAL, but I don't think so. Hell, if that's not clear enough, and the DMCA really were unconstitutional on those grounds, they could just enact a new statute that said "Once works fall into the public domain, the DMCA no longer applies." But I think it already says that. So where's the beef? You can cry foul about DRM that protects a work forever, but I'm not sure there's anything legally wrong there, and I don't think that makes the DMCA unconstitutional.
(Maybe it makes it copyright misuse? Would anyone enforce this BEFORE the copyright expires? Could you say, "This DRM is a misuse of copyright even though the copyright hasn't expired yet?" Sounds like we run into the same trouble there that Lessig did with copyright term extensions - how could you get a Court to look into the rule on what might happen in the future (in a infinite term DRM case, the content owners could provide a circumvention device later)).
I still agree with what Professor Balkin has to say about the DMCA "alter[ing] the traditional contours of copyright protection." But this other argument doesn't seem to work.

Hey, and while I was reading the DMCA, I found this bit that clears up an earlier discussion with Seth Finkelstein about a DMCA-is-unconstitutional argument:
"[A technological measure] ‘effectively protects a right of a copyright owner under this title’ if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title."
Later: I should probably note that "clears this up" refers to my end, since I hadn't read it before responding to Seth's original post; we simply discussed how you would intepret effectively, outside of this definition. Also, it wasn't precisely a discussion about the DMCA, so much as it was a discussion about arguments made against the DMCA and in Eldred. Just wanted to clarify.

Tuesday, January 28, 2003

RSS Feed posted
Thanks to Voidstar RSSify, I've got an RSS feed - it's linked at the left column. Hope it works.

If only my free time were defined by Congress and the Supreme Court...
...I could turn "limited free time" into "infinite free time" just by snapping my fingers.
Sadly, I can't - but I promise to get to this and this as part of my Series as soon as a I can.

Statements on Copyright Misuse from and Napster Court Rulings
UPDATED [7:51 PM], [11:45 AM, 1-29-03]

From the final decision in
"Defendant's *353 other affirmative defenses, such as copyright misuse, abandonment, unclean hands, and estoppel, are essentially frivolous and may be disposed of briefly. While defendant contends, under the rubric of copyright misuse, that plaintiffs are misusing their "dominant market position to selectively prosecute only certain online music technology companies," Def.'s Consolidated Opp. to Pls.' Motions for Summ.J. at 21, the admissible evidence of records shows only that plaintiffs have reasonably exercised their right to determine which infringers to pursue, and in which order to pursue them, cf. Broadcast Music, Inc. v. Peppermint Club, Inc., 1985 WL 6141, at *4 (N.D.Ohio Dec.16, 1985)."
Also, the Court noted: "Finally, the Court must reject defendant's unclean hands defense given defendant's failure to come forth with any admissible evidence showing bad faith or misconduct on the part of plaintiffs."

From Napster:
"C. Misuse
The defense of copyright misuse forbids a copyright holder from "secur[ing] an exclusive right or limited monopoly not granted by the Copyright Office." Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970, 977-79 (4th Cir. 1990), quoted in Practice Mgmt. Info. Corp. v. American Med. Ass'n, 121 F.3d 516, 520 (9th Cir.), amended by 133 F.3d 1140 (9th Cir. 1997). Napster alleges that online distribution is not within the copyright monopoly. According to Napster, plaintiffs have colluded to "use their copyrights to extend their control to online distributions."
We find no error in the district court's preliminary rejection of this affirmative defense. The misuse defense prevents copyright holders from leveraging their limited monopoly to allow them control of areas outside the monopoly. See Lasercomb, 911 F.2d 970 at 976-77; see also Religious Tech. Ctr. v. Lerma, No. 95-1107A, 1996 WL 633131, at *11 (E.D. Va. Oct. 4, 1996) (listing circumstances which indicate improper leverage). The district court correctly stated that "most of the cases" that recognize the affirmative defense of copyright misuse involve unduly restrictive licensing schemes. See Napster, 114 F. Supp. 2d at 923; see also Lasercomb, 911 F.2d at 973 (stating that "a misuse of copyright defense is inherent in the law of copyright"). We have also suggested, however, that a unilateral refusal to license a copyright may constitute wrongful exclusionary conduct giving rise to a claim of misuse, but assume that the "desire to exclude others . . . is a presumptively valid business justification for any immediate harm to consumers." See Image Tech. Servs. v. Eastman Kodak Co., 125 F.3d 1195, 1218 (9th Cir. 1997). But see Intergraph Corp. v. Intel Corp., 195 F.3d 1346, 1362 (Fed. Cir. 1999) ("[M]arket power does not 'impose on the intellectual property owner an obligation to license the use of that property to others.'" (quoting United States Dep't of Justice & Fed. Trade Comm'n, Antitrust Guidelines for the Licensing of Intellectual Property 4 (1995)). There is no evidence here that plaintiffs seek to control areas outside of their grant of monopoly. Rather, plaintiffs seek to control reproduction and distribution of their copyrighted works, exclusive rights of copyright holders. 17 U.S.C. § 106; see also, e.g., UMG Recordings, 92 F. Supp. 2d at 351 ("A [copyright holder's] 'exclusive' rights, derived from the Constitution and the Copyright Act, include the right, within broad limits, to curb the development of such a derivative market by refusing to license a copyrighted work or by doing so only on terms the copyright owner finds acceptable."). That the copyrighted works are transmitted in another medium–MP3 format rather than audio CD–has no bearing on our analysis. See id. at 351 (finding that reproduction of audio CD into MP3 format does not "transform" the work)."

Later [7:51 PM]: Also, though a later investigation of copyright misuse in relation to the Napster case died with Napster's bankruptcy, it's worth remembering that Judge Patel did lend some credence to the copyright misuse argument. This court order has some nice general copyright misuse info, many of the articles on Sharman's allegations cite Patel's discussion of MusicNet and PressPlay. See these and Wired articles for more.
Later [11:45 AM, 1-29-03]: I had a little more time to read this order. This caught my eye:
"Third, plaintiffs contend that even if they are engaged in misuse, be it through restrictive licensing or antitrust violations, they should still be able to recover for infringement that occurred prior to the MusicNet agreement. Plaintiffs misunderstand the misuse doctrine. Misuse limitsenforcement of rights, not remedies. See Practice Mgmt., 121 F.3d at 520 n.9 (“Copyright misuse does not invalidate a copyright, but precludes its enforcement during the period of misuse.”). If plaintiffs are engaged in misuse, they cannot bring suit based on their rights until the misuse ends. See Lasercomb, 911 F.2d at 979 n.22 (“Lasercomb is free to bring a suit for infringement once it has purged itself of the misuse.”); Morton Salt, 314 U.S. at 492 (“Equity may rightly withhold its assistance. . . by declining to entertain a suit for infringement, and should do so at least until it is made to appear that the improper practice has been abandoned and that the consequences of the misuse . . . have been dissipated.”). The doctrine does not prevent plaintiffs from ultimately recovering for acts of infringement that occur during the period of misuse. The issue focuses on when plaintiffs can bring or pursue an action for infringement, not for which acts of infringement they can recover."

So, this seems to mean that, even if the music and movie industries are guilty of misuse, as long as they end their misuse, they can recover damages for infringement. How would this help Sharman? They'd still have to pay damages. That's pretty interesting.

More on Copyright Misuse (and fair use)
Awhile back, I came upon this journal article called "Exorcising the specter of a 'pay-per-use' society: toward preserving fair use and the public domain in the digital age". It's a very interesting article on the problems of strong DRM, and has some info on copyright misuse. Here's an interesting quote from it:
"“The major limitation of copyright misuse is that it is only a threat to content owners who are seeking to safeguard works protected by copyright. It will thus have no bearing on the development of TPSs [aka DRM] by creators of currently uncopyrightable collections of information. Even holders of thin copyrights would be less deterred than owners of expression entitled to full legal protection. Thus, copyright misuse may be of limited use in preserving the public domain on the Internet. On the other hand, it may be quite valuable as a means of ensuring fair uses of copyrighted works that are available in the digital. The powerful threat of nullifying the content owner’s copyright would provide them with a strong incentive to ensure the availability of fair use to users who have lawfully acquired copies. This, however, highlights a problem with the doctrine in general: making the copyright completely unenforceable is a harsh remedy. Judges may therefore be reluctant to apply copyright misuse to TPSs.”

You also might want to check out this article by Berkeley Professor Mark Lemley. It's more focused on contract law, but it's got a good short bit on copyright misuse on pages 38-44.

KaZaA is arguing ... what? reports on KaZaA's countersuit. Not only are they arguing that their system is different from Napster such that it fits the "substantial non-infringing uses" Betamax defense, but they're also arguing that the music and movie industries are guilty of copyright misuse and antitrust violations.
As I discussed yesterday, I do believe that the music and movie industries' licensing techniques are suspect, bordering on anti-trust. But, when I read about these KaZaA allegations and started thinking about what they were saying, I see that perhaps I went too far by implying that antitrust allegations might pay off. (From my limited knoweldge) I don't think that using antitrust in court will necessarily work, and I certainly think antitrust allegations against the music and movie industry in KaZaA's case are fairly weak, especially in comparison to Intertainer. Certainly, it's weaker for the music industry side of things, because they have been licensing their music to other places. As far as I know, there hasn't been a lot of momentum behind MOCA and the DoJ's investigation of MusicNet and PressPlay. Furthermore, in Intertainer, there's a stronger case because (I think) the movie studios had made some agreements with Intertainer, and then went against those agreements.
KaZaA has some vague story of conspiracy it seems. I heard that KaZaA BV, the original owners of KaZaA, tried to get a licensing agreement before they released the first version; when the Big 5 said no, KaZaA released it anyway. Is that refusal the conspiracy they're talking about? And, if so, how can Sharman make that claim since they didn't own KaZaA at the time. Moreover, once KaZaA was already out there, and the music industry had already told them to shut down, why the hell would the music industry license music to Altnet, the group that works with Sharman to provide licensed content? That's just plain business sense - I actually agree with this RIAA statement: "[KaZaA alleging antitrust violations is] akin to an arsonist burning down his home and then seeking sympathy for being homeless."

And, as for copyright misuse, well, I know even less about this obscure part of copyright law. Still, given what I do know, this doesn't look good:
1. Let's start with this nice summary. That covers the two cases I've heard of, and the two basic ways you can misuse copyright: trying to extend your copyright control over something you don't have control over, and trying to extend your copyright control past its legal scope.
2. Did the music or movie industries do either? They don't resemble either of the cases listed at the link above.
This argument didn't go anywhere for Napster and, I doubt it will go anywhere for KaZaA.

Even though I doubt KaZaA has much of a copyright misuse case, I wonder how copyright misuse could be used against copyright owners using DRM. Perhaps it would make the DMCA unenforceable if a copyright holder uses DRM to make a copyright run point its expiration date (if those even exist anymore). Could DRM that completely prevents interoperability constitute copyright misuse? I'm not sure if preventing fair use would be enough to constitute copyright misuse, even without the DMCA in place, because fair use is merely a defense and not a right.

Monday, January 27, 2003

Brick and mortar to move online ... with music industry permission reported Best Buy, Hastings Entertainment, Tower Records, Trans World Entertainment, Virgin Entertainment and Wherehouse Music will join forces to distribute music online. But, this is the key to the article: "The retailers did not give specific details of their plans, but said they would try and get licenses to deliver digital music products and services in their stores."
It'll be interesting to see if they succeed. What incentive does the music industry have to give good licensing terms? Won't that just undermine PressPlay and MusicNet? Why would they do that? I know they already do limited licensing elsewhere - but the Big 5 still retains most of the power. (Can you say, Intertainer v. AOL Time Warner all over again? Oh wait, some have already said that.)
In the online world, the Big 5 don't need the brick and mortar distributors. I wonder when musicians will completely turn their backs on the Big 5.

Later [12:02 AM]: I realize that the final paragraph above is a bit too conclusive - it's not that cut and dry. The Big 5 still could use some help marketing their music, and other distributors could help that. As I noted, they already do some limited licensing, but this "Echo" seems like a much more substantial venture. I just don't think the music industry has much incentive to provide good licensing terms that will allow this "Echo" venture to successfully market the music. I don't see anything special about "Echo"; they don't seem to have any specific plans to make it more appealing than just continuing with PressPlay, MusicNet, and the other limited licensing projects. What's going to get them better licensing terms? What's going to keep this venture from failing like LiquidAudio has?
As for musicians, they, too, need help marketing and distributing their music, and, even with the advances in do-it-yourself studios, many musicians will still turn to music companies for funds. But, they will need the Big 5 a lot less. Ease of publishing on the Internet will allow many artists to venture out on their own. Even though it'll probably be easier to distribute one band's music as part of a much larger music website, the Big 5 need have no involvement in such a project. In fact, given many artists disdain for the major labels, it's unlikely they'd want the Big 5 involved.

Protecting Fair Use by Reinventing Copyright (Part 1 in a series)
I will be producing a series of posts about protecting fair use. Most of the current copyfight focus is on what to do about the Hollings bill, DMCA, etc. Rather than simply criticizing these proposals, I want to look at alternatives to them. I want to evaluate other proposals that will protect fair use, but provide adequate protection to copyright holders.
To investiage this, I am going to look at a series of journal articles that I've been reading. I'll throw links up to them, discuss what catches my eye, and evaluate the article's policy if one is proposed.

Part 1 will focus on "Fair Use Infrastructure for Rights Management Systems" by Georgetown Professor Julie E. Cohen and University of Minnesota Professor Dan L. Burk, as published in the Harvard Journal of Law and Technology.
This article argues that we should condition copyright protection on the use of fair-use friendly DRM. To do so, we would first set a baseline standard for all DRM to protect typical noncommercial fair-uses. In addition, to have anti-circumvention provisions like the DMCA enforced, copyright holders would have to provide access keys to a third party. Consumers who want to exercise a fair use not coded into the baseline standard could apply to get the keys; at that point, there could be some sort of evaluation to determine whether the application merits fair use exemption. The bureaucracy of such a procedure would need to be minimized and there would need to be adequate privacy protection.
The article also discusses what fair use is in general, treaty constraints to such a system, and drawbacks to this system (some of which I discuss later).

Things I like about this proposal: it seems politically feasible. It's only one step further than the Lofgren bill. Also, it doesn't completely undue the DMCA, nor does it force anyone to adhere to the DRM baseline standard. If people want to use completely restrictive DRM, they can. But, if they reject the copyright bargain, then they do not deserve copyright protection. That seems pretty fair to me. If you need copyright to solve a public goods "problem" then you can deal with a DRM baseline to counter externalities created by limited fair use. Furthermore, this would satisfy some of the people who want no mandates and who simply want businesses to adapt to the digital environment. This model would allow for a diversity of business models, using different DRM (ones that don't comply with the baseline, ones that do, ones that go further than it). Competition in the market would sort out what's best. (More on this later when I discuss Tom Bell's "Escape from Copyright"and "Fair Use v. Fared Use").

Problems with this proposal: First, there are the privacy/anonymity problems with the key escrow that the authors discuss. Second, this proposal, while seemingly expanding fair use, limits it. Right now, fair use is spontaneous. You don't need to ask anyone's permission. Moreover, fair use is not one set of actions or norms. It's always expanding and can never be completely delimited. The key escrow system would have to be so painless that it would not have a substantial negative effect on fair use. But, the only way to make it painless, imo, is to have hardly any evaluation of the use the consumer is applying for. That would probably lead to the authorization of actions that are not fair use. Third, there's nothing to stop people from circumventing the DRM anyway. People could still circumvent the DRM on a DVD and distribute an MPEG of it on KaZaA - that happens already. So, this proposal really doesn't solve that problem.
Question I have about this proposal: is DRM flexible enough to handle this? Could you make a baseline standard that allowed for personal copying without allowing illegal transmission over a P2P service or through an email attachment?
Also, should we let people exit copyright, buck the DRM baselines, and make whatever DRM they want. A few years ago, Professor Cohen wrote:
"If CMS [copyright management systems, aka DRM] provide a more reliable method of correcting market failure, who needs copyright? I hope that most readers will think this suggestion absurd-and will react that way because they recognize that the semi-permeable barrier of copyright promotes the public interest. But if the copyright system is necessary, then allowing unlimited numbers of copyright owners to opt out of the system as it suits them is bad law and bad policy. At the very least, a CMS regime should be subject to an analogous set of restrictions designed to balance the affected interests."

I'm not quite sure why she changes her tune in this later article.

Next in this series: I realize that it's taken me far too long to write this piece and it still hasn't covered enough of the article. I will follow-up hopefully with some more about this article, and also some more about the Bell articles I mentioned.

Sunday, January 26, 2003

More from The Economist
(More of the same, but I figured I'd link anyway. Comments on similar articles here )
Another interesting article about copyright. Mentions Jessica Litman's plan of redefining copyright, FIsher's taxation plan, and Lessig's copyright renewal plan. After rejecting those (too quickly, I think), it goes on to discuss what would happen if content owners get what they want (strong DRM backed by stronger laws) or the "cyber-libertarians" (whoever they are) get what they want (let the free market sort it out, no DMCA). The Economist comes to conclusion that both scenarios will lead to DRM that is balanced, because otherwise consumers won't by the products. It closes:
"Ironically, these two outcomes seem rather similar. So is the debate about copyright irrelevant? Eventually, perhaps. But first there will be constant warfare between those who see copyright protection as a threat to the new digital world, and those who see that world as a threat to their wallets. 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. But whatever happens, creativity is unlikely to grind to a halt. The show must go on."

What's interesting here is that within the same issue the magazine writes: "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." This doesn't seem near as ambivalent as the above quote.

Sony's Open MG X and better DRM
We already had this debate over whether "better DRM" can exist. As I read Wired's great article about Sony, this caught my eye:
"With OpenMG X, the version being developed, Sony will no longer set blanket rules for its own devices; it's created a digital rights management system that works on any manufacturer's hardware and allows the content owner to set the rules."

Given that I don't know tons about the tech of DRM, I've always wondered about how flexible DRM can actually get. Could you set something up that only allowed you to copy in all sorts of fair use ways while also preventing piracy? It seems that you'd still inevitably block fair use (putting an MP3 on one's personal webpage as a backup doesn't seem different from sending it over a P2P system - how could DRM tell the difference?). But, to what extent can DRM be flexible?
Another thing about this article: I'm glad that Microsoft is getting competition in DRM, but, given that Sony comes off sounding like a bunch of struggling yutzes, I'm not sure they're going to step up to the challenge.