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: ยง106." 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.)