Last week I had two posts on the question of whether labels might periodically remove copyrighted works from subscription services (Content Subscription Shenanigans and No Guarantees with Content Subscriptions). Access may be granted at one point in time and denied at another. I think this is a legitimate concern that should be addressed by those who promote subscription services. I've also come across further evidence of this possible music industry tactic.
An entertainment lawyer familiar with the issues (anonymous by request) has said that labels sometimes find it in their best interest to keep a good portion of their catalog in an inactive status (not available in physical formats). According to this source, label heads have told him that they don't stop selling certain artists not because they don't believe they can sell the music but, rather, they stop selling some artists' work so that they can clear the market for others. In other words, the strategically deny certain artists so that others can live.
I'm not sure why these tactics wouldn't translate over to the subscription-based world.
UPDATE
Bonus: This is the 500th Post on "The Importance Of..." Go, me!
The American Museum of the Moving Image in Astoria, New York is an incredible museum and resource. It "is the only institution in the United States dedicated exclusively to the study of film, television, and digital media, and to examining their impact on American culture and society." In addition to the permanent collection of over 100,000 moving image artifacts, it has some fantastic temporary exhibits currently, such as a collection of Tim Burton's drawings from 12 of his movies. There is also an ongoing exhibit on videogames. In fact, admission to the museum provides you three tokens to play classic games including: Asteroids (1979), Frogger (1981), Ms. Pac-Man (1982), Space Invaders (1979), and Tron (1982). Additionally, the online exhibit Computer Space lets you download an emulator and the actual ROM for many of the games so that you can play them on your PC at home. You can download the original games! How cool is that?
Answer: very. Unfortunately, downloading the content from AMMI's latest exhibit is prohibited. Which is really a shame, because while the exhibit is excellent (really, really excellent), making the content freely downloadable could be very useful for our democracy. It's that important. Read on...
The Living Room Candidate: Presidential Campaign Commercials 1952-2004 is
an innovative online exhibition presenting more than 250 television commercials from every presidential campaign year since 1952. Visitors to the Museum’s Website can watch nearly four hours of TV commercials. The site includes a searchable database and features commentary, historical background, election results, and navigation organized by both year and theme.This exhibit is really well-organized. Every commercial has a transcript. Brief commentary sets the commercials into context. You can look at commercials by type (Backfire, Biographical, Children, Commander in Chief, Documentary, Fear, and Real People) or by issue (Civil Rights, Corruption, Cost of Living, Taxes, War, and Welfare). There is also a section on campaigning via the Internet.
Great stuff. But, as I watched some of the commercials (Real and Windows Media) I couldn't help but think of the possibilities of being able to remix and annotate them. I imagined what many of the amateur commercial creators who participated in MoveOn.org's Bush in 30 Seconds contest could do with the material. Shouldn't the people be permitted to use these materials to make their own campaign commercials?
So, I tried to download the commercials, but couldn't do it without violating the DMCA. So I contacted AMMI and asked them about this and they were kind enough to answer.
David Schwartz, the Museum’s Chief Curator of Film and co-curator of the exhibit had this to say,
Some of the permission obtained to exhibit this material was contingent on the Museum's assurance that the material would not be downloadable, and would not be edited.What are the permission-granters afraid of? Why don't they want the people to have this material? Apparently is is tolerable to present these works in the safe, reserved arms of a museum exhibit, but heaven forbid that these works actually become part of the living, breathing fabric of democracy.
Unbelievable sums of money have been and will be spent on television campaign commercials. They are the heart and soul of the modern campaign. They are the main reason campaign contributions play such an important role in our democracy. Until now, the ability to create campaign commercials has been the preserve of highly paid election consultants and strictly controlled by the candidates and parties themselves. However, the internet and computing revolutions are changing this. As the MoveOn contest proved, amateurs are perfectly capable of creating compelling campaign advertising. Why shouldn't they have the chance? Why shouldn't these materials be free to quote from? Isn't this what democracy and free speech is about? Of course, it may be that the parties and candidates don't really believe in free speech.
But what about the copyright issues? David Schwartz again,
Most of the commercials were obtained from various presidential libraries, and are in the public domain. In some cases, the ads were provided by ad agencies and by campaign offices (including the DNC and RNC), and these entities retain the copyright. Ronald Reagan is the only president included in the exhibition who obtained copyright ownership of his ads. We obtained permission from his office for use of the ads.For the works in the public domain there is clearly no problem. In fact, I'm not sure why any of these commercials are copyrighted anyway. After all, I seem to recall that tax dollars paid for at least a portion of many of those ads. And even if there is copyright, the holders of those copyrights should be asked why they won't permit licensing under one of the Creative Commons licenses.
This is a great exhibit. It should be greater.
The Chronicle of Higher Education has an important article about the copyright troubles of an anthology of essays about composer and violist Rebecca Clarke. The Chronicle article is behind a subscription wall, but you can read it on Fair Use Fighter Siva Vaidhyanathan's blog Sivacracy.net (More Copyright vs. Knowledge). I definitely recommend reading the whole thing.
The book at issue, A Rebecca Clarke Reader, is described as "The First Book On This Significant And Popular Composer." The book, according to the Rebecca Clarke Society homepage,
considers the life, works, and career of the English composer Rebecca Clarke (1886–1979). Leading scholars present original research on Clarke's songs, chamber music, and contemporary musical milieu, supplemented with new editions of rare writings by Clarke herself. Readers will particularly enjoy transcriptions of four interviews with the composer, where Clarke speaks candidly about her fascinating life.The completed book had reached reviewers before it was hastily withdrawn. Christopher Johnson of the Oxford University Press manages Clarke's estate and has leveled accusations of copyright infringement against the book. Obviously, without access to the book, it isn't clear whether or not the allegations of copyright infringement are true or not. However, we do know that in addition to copyright infringement, the cease and desist letter claims that the book includes "defamatory and libelous statements regarding Mr. Johnson." The Chronicle notes that:
One university press's book recalled at the insistence of an employee at another academic press presents an exquisite irony. But the tale of A Rebecca Clarke Reader also illustrates a much larger problem: University presses, affected by shifting interpretations of copyright law, lack the resources to test the provisions of that law.Indeed. Donna Wentworth explains it thus (University Press Refuses to Be Fair Use Guinea Pig):
The problem isn't that Ms. Curtis should be able to use any copyrighted materials she chooses -- she may indeed have violated Mr. Johnson's copyrights. It's that without sufficient funds or friends of the pro bono persuasion, there isn't any contest. The threat of a lawsuit is alone adequate to decide the "case" in favor of the copyright holder. This means that even (or especially) in academic publishing, the bottom line is the bottom line -- because, as the Indiana press music editor puts it, "No one has $11-million to test the gray areas." [link in original]There is much more in the Chronicle's article that is spot on reporting. Again, read the whole thing. However, I will finish with just one more interesting nugget from the article:
Despite the press's demand that she return the 200 copies of the Reader in her possession, Ms. Curtis says that she is keeping them. "I have my 200 copies that I give to reporters and to libraries," she wisecracks. "I can start photocopying things and turn it into a PDF and have it circulate samizdat."
On Sunday the New York Times Magazine published an extensive article on a new documentary that is sharply critical of Fox News and borrows extensively from copyrighted Fox News clips under the fair use doctrine (How to Make a Guerrilla Documentary). My take here: Guerrilla Documentary Copyfighting. Donna Wentworth's here: Fair Use It or Lose It, Part II. Seth Finkelstein's here: "OutFoxed" and Fair-Use Strategy. Larry Lessig, who is working on the documentary's legal defense comments here: outfoxed.
Frankly, I thought it would be foolish for Fox News to take legal action against this film. All they will do is give it more publicity and make it more popular and more viewed than ever before. Without the major publicity that a lawsuit will bring, very few outside those already convinced Fox is biased would see the film. Guess Fox News is more foolish than I thought. Looks like they may be considering a little legal rope-a-dope.
According to the always-on-top-of-things Broadcasting & Cable, Fox News has released a statement on the film (Fox News Bites Back):
It’s illegal copyright infringement facilitated by The New York Times and billionaire liberal George Soros. Or so says Fox News Channel in counterattacking new documentary Outfoxed, which slams the cable network for the slant of its programming and blames its financial success for the "Foxification" of other news outlets.Reuters wirestory here: Film Calls Fox News Biased, Channel Cries Foul. Editor & Publisher has more details on the statement (Fox Fights Back Against 'NY Times' Over Film Story):
In a statement handed out at the press conference by an unidentified woman, Fox News declared, "The illegal copyright infringement actions of moveon.org in cooperation with The New York Times, including 'cutting a deal' not to give Fox News Channel adequate time to react, is unprecedented." The Times, it said, in "taking orders from" a George Soros-funded Web site, "corrupts the journalistic process. This is the real story." It described Soros as "a left-wing billionaire currency speculator who funds many liberal efforts."Of course, it would be nice of these news sources to actually make the statement available instead of simply summarizing it.
The New York Times takes a look at the perennial complaints of book publishers that the first sale doctrine (aka 17 USC 109 aka used books) is harming their business because of the increased efficiencies of Amazon (Online Battle of Low-Cost Books):
Is Amazon.com becoming the Napster of the book business?Did I say perennial? Yes. How about this quote from the New York Times in 2002 (Online Sales of Used Books Draw Protest):The analogy may not be far off, say some observers of the used-book industry...."Used books are to consumer books as Napster was to the music industry," [Lorraine Shanley, a principal at Market Partners International, a publishing consultant,] said. "The question becomes, 'How does the book industry address its used-book problem?' There aren't any easy answers, especially as no one is breaking any laws here."
"We asked could we at least talk about when something could become available as a used book? Could we maybe wait three months after the book was published?" said Patricia Schroeder, president of the Association of American Publishers. "The biggest problem is that it is legal, I think. I wring my hands, pound my desk and say, `Aargh.' "I think the publishers should simply stop selling books to people who are going to turn around and sell them as soon as they are done. Perhaps shrinkwrap contracts or DRM would be in order. (Sarcasm)
via LawMeme
Books are the treasured wealth of the world and the fit inheritance of generations and nations. Books, the oldest and the best, stand naturally and rightfully on the shelves of every cottage. They have no cause of their own to plead, but while they enlighten and sustain the reader his common sense will not refuse them. - Henry David Thoreau, WaldenOn July 8th, Eric Eldred and the Internet Bookmobile went to Walden Pond to help celebrate the 150th anniversary of the publication of Thoreau's Walden (Free Walden). The reception wasn't at all what one might expect:
After an hour of having readers print and take away free copies of "Walden," I was asked by the Walden Pond Reservation police to pack up and leave and threatened with arrest. I left.I cannot say how sad and disappointed this makes me nor can I imagine the response Thoreau would have had to this expression of the general police power. This is beyond any irony.The park supervisor (Denise Morrissey, 978-369-3254) told me I could not pass out free literature without a permit. And she would not give me a permit because, as she explained, the state park gets money from a concession by the Thoreau Society, which operates a store that sells "Walden"--and I was competing with them by giving away free copies.
On the other hand, the Internet Bookmobile contines to do great work. I've said it before and I'll say it again. I think every school and library ought to have this publishing technology and access to thousands of great and important books freely available (Book Publishing in Every School and Library).
Of course, one of the wonderful things about the current moment is that we now have a growing number of really good books that are not out of copyright, but are copyleft. Not only can the Internet Bookmobile print Walden, but you can get a copy of such Creative Commons-licensed works as Lessig's Free Culture (though Eldred tells me it takes awhile to print the whole thing - he's given away chapters), Cory Doctorow's Down and Out in the Magic Kingdom, and coming (very) soon, Dan Gillmor's We the Media.
via Boing Boing
Robert Greenwald, an honored (and innovative) director and producer of films, has a new documentary coming out that critiqes Fox News, called OutFOXed. The New York Times Magazine has a lengthy article on many of the issues facing the making of this documentary, most prominently the copyright clearance issues (which are particularly difficult for films) (How to Make a Guerrilla Documentary).
Obviously, the documentary will feature many clips from Fox News, often showing them in a less than flattering light. Fox News famously sued over the title of Al Franken's book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. The case was laughed out of court, but it shows how litigous Fox News is willing to be. So, Greenwald is rightfully afraid that he will be sued, despite the merits of his case. Fortunately, it seems that perhaps Fox News has learned its lesson (their lawsuit helped publicize Franken's book better than anything). According to the Washington Post (annoying reg. req.) Fox News may ignore this documentary (though the statement certainly isn't a promise not to sue) (Too Late to Comment?):
"People steal our footage all the time," says Dianne Brandi, Fox News's vice president for legal affairs. "We generally sort of look the other way."
Nevertheless, there have already been other significant copyright problems, according to the NY Times Magazine article:
Then there was the fact that several major news organizations were unexpectedly refusing to license their clips. (Such licensing is ordinarily pro forma.) CBS wouldn't sell Greenwald the clip of Richard Clarke's appearance on ''60 Minutes,'' explaining that it didn't want to be associated with a controversial documentary about Murdoch. WGBH, the Boston PBS station, wouldn't let Greenwald use excerpts from ''Frontline'' for fear of looking too ''political,'' it said.
An aside: Of course, why use copyright law if there are other means to prevent the making of these sorts of films. Take, for example, the process Greenwald used to make the film:
''Outfoxed'' was made in an unusually collaborative fashion. In January, Greenwald rigged up a dozen DVD recorders and programmed them to record Fox News 24 hours a day, seven days a week, for about six months.Fortunately, Greenwald didn't have to deal with the broadcast flag, which would make using such clips significantly more difficult (and expensive).
Another critical aspect to note about Greenwald's film is the innovative distribution methods he uses, bypassing traditional gatekeepers:
Last year, Greenwald followed up that effort with ''Uncovered,'' his critique of the Bush administration's case for war in Iraq, which featured interviews with former intelligence analysts, weapons inspectors and Foreign Service officers. Once the film wrapped, Greenwald turned the traditional distribution model on its head. Rather than taking the time-consuming route of entering film festivals or courting theater distributors, he sold the DVD of ''Uncovered'' through the Web sites of various left-liberal organizations: MoveOn, The Nation magazine, the Center for American Progress and the alternative-news Web sites AlterNet and BuzzFlash.Through such means he has sold tens of thousands of DVDs. This is no mean feat and it shows the power of alternative distribution. After all, what conventional distributor would be willing to publish such an obvious lawsuit target?
Another aside: The people behind the film recognize the potential for even more innovative distribution.
Jim Gilliam, a 26-year-old former dot-com executive and a producer of ''Outfoxed,'' is enthusiastic about the way Greenwald's projects meld grass-roots politics with the culture of the Internet. He predicts a future -- augured by events like MoveOn's competition for the best 30-second anti-Bush advertisement -- in which young political filmmakers will be as likely to wield a camera phone as a digital camera. ''It won't be long before people will be shooting and editing short documentaries that they'll stream from their blogs,'' he says.Yep. Sounds like broadcatching.
Luckily, given all the major legal issues involved, Greenwald has Ubercyberlaw Prof Larry Lessig and others working with him on the copyright issues (outfoxed). Says Lessig,
As the Times article describes, Greenwald’s style for distributing documentaries may be the beginning of something new — political criticism, using interviews and clips, making a strong political point, distributed through DVDs and political action groups. (See some other examples here). On what theory does he, and others, have the right to use such material without permission? On the free culture theory we call the First Amendment: Copyright law must, the Court told us in Eldred, embed “fair use”; “fair use” is informed by First Amendment values; the values of the First Amendment most relevant here are those expressed in New York Times v. Sullivan. As with news-gathering, critical political filmmaking needs a buffer zone of protection against the overreaching of the law. And if the potential of this medium — now liberated by digital technology — is to be realized, we need clear precedents that establish that critics have the freedom to criticize without having to hire a lawyer first. [links in original]Indeed. Lessig's right:
Watch the movie. Celebrate the freedom it represents. It is a particularly American freedom that we should celebrate and practice more often.
Recently, on Copyfight, there have been a couple of posts about "tethered" music services (A Tale of Two Tethers and RCN's New Tethered Music Service). In A Tale of Two Tethers, Jason Schultz linked to a NY Times article in which a proponent of subscription streaming music services (as opposed to downloads) touts the supposed superiority of access such services provide (From a High-Tech System, Low-Fi Music):
Richard Wolpert, chief strategy officer of RealNetworks Inc., the parent of RealRhapsody, takes aim at Apple when he muses that customers will be unhappy when they decide that they want to own music encoded at 320, not at 128. Far better, he argued, to abandon the notion of "owning" songs, because the concept condemns users to endless purchases. "How many times do you want to own your music?" he asked. "I own my music as eight-tracks, I own my music as albums, I own my music as cassettes, I own my music as CD's."Unfortunately, access to favorites isn't guaranteed. According to Joe Gratz, some of the music on Rhapsody has a tendency to disappear, sometimes in only a few weeks (The Danger of Subscription Music Services):With a subscription service like RealRhapsody, one saves personal tastes in the form of playlists that replace actual music collections, providing access to favorites no matter what storage format comes out "in the next 5 or 10 or 20 years," Mr. Wolpert said. [link omitted]
Several times over the past few months, new releases have appeared on Rhapsody on their release date, only to be pulled from the catalog a few weeks or months later.Imagine the licensing battles of the future. When renegotiating licenses, artists and publishers could pull their music out of the subscription system, thus leaving subscribers with no access to the music on the playlists they so carefully created. Gratz anticipates even shadier behaviour:
There is the possibility here for some very nasty crack-dealer-like licensing behavior on the part of the record companies: they license to subscription services for a while, then pull the album so people who are hooked go out and buy the CDs. Record companies could even repeat this gambit over and over, hooking new subscription-service users then forcing CD purchases each time.Wolpert's right. A subscription service means that your music can be upgraded over time (though shouldn't we be at a point where upgrades are unnecessary?). Of course, that doesn't help much if the music is taken off the subscription service. That's a risk that Wolpert failed to mention. Maybe ownership isn't passe quite yet (Rental Nation).
Cyberlaw Prof Larry Lessig takes a look at some of the reasoning that seems to have informed those behind the Inducing Infringments of Copyright Act (IICA, née INDUCE Act) (continuing congressional confusion on copyrights (ie, not just (c), or (cc), or even (ccc) but (cccc))). He points to a recent paper (Sony Revisited [PDF]) from Lee Hollaar, Computer Science Professor with the Univ. of Utah. From the introduction of the paper:
Today, tens of millions of people participate in peer-to-peer systems like Kazaa, with most users “sharing” not their own material, but more likely music whose copyrights are owned by others. Whether such activities hurt the copyright owners by being a substitute for legitimate sales and license fees, or help by sparking interest in a new work, is not the question here. The Constitution and the copyright statutes give a copyright owner the exclusive right to the protected work during the limited duration of the copyright, and therefore the right to determine the business model for its distribution to the public. [footnotes omitted]Lessig briefly addresses Hollaar's arguments, but really pushes the point that Sony enshrines the separation of powers, that,
This is not an opinion about copyright law alone. It is an opinion about separation of powers — about which branch is best able to do the necessary balancing that copyright law demands, “within the limits of the constitutional grant.” Sony says, in effect, when a technology is not simply a technology for violating the law, then it is left to Congress to decide whether and how that technology is to be regulated. Congress, not the courts. [link in original]My perspective on Hollaar's paper when I've had a chance to go through it.
A couple of weeks ago Eric Harrison wrote a head-to-head comparison of Windows Media Center Edition and TiVo. (TiVo versus Media Center Edition PC's - finally!). TiVo won, partly because the original Windows machine had all sorts of defects, but mostly because TiVo is a more solid performer. Paul Robichaux's comparison goes into more depth about the MCE (Media Center Eye for the TiVo Guy).
Jupiter Research analyst Michael Gartenberg looks at Harrison's comparison and adds some thoughts of his own, as JR is working on a report on standalone DVRs (Tivo comparison to Windows Media Center):
First, the PC is more flexible. If I want to store and view my pictures, music and other video content, burn to DVD, copy to a portable media player and stream that content to other devices in my home, I can do that with the PC and not with the TiVo. The MCE EPG is also more flexible. Try and record the West Wing on TiVO, just the 7pm episodes shown on channel 44, not the other boradcasts. You can't do it. It's a snap on MCE. (why would you want to? to record a series according to airdates so you can watch the episodes in order). On the other hand, my TiVO never crashed, locked up, missed a scheduled record or any other annoying issue. Clearly the dedicated funcitonality makes for a more stable platform. Part of the MCE experience issue is that it's still a PC. You still need to exit to the shell to get some things done. You need to re-boot from time to time. If MCE is going to make inroads in the next year it needs to be able to shed the PC experience and live 24/7 as a consume electronics device.Here are my thoughts. I already have a TiVo. I already have a PC. Most of the people who are considering buying a TiVo already have a PC as well. If the TiVo could simply talk to the PC, then they (and I) could get the benefits of consumer electronics reliability and the flexibility of a PC without having to buy a whole new, rather expensive PC.
So why don't DVRs offer this flexibility? They get sued into oblivion: EFF Archives: Newmark v. Turner Broadcasting System. Need I mention that the IICA (née INDUCE Act) will make bringing such company-resource-draining lawsuits easier? Or that, in a little less than a year, the government will burden such capability with mandatory DRM: Digital Television Liberation Front?
One hundred years ago today, the Oil City Public Library opened thanks to a $50,000 donation from Andrew Carnegie (Building of library was controversial issue back in 1904). Yet, as the title of the article indicates, building the library was not universally applauded. Reading the article, which includes many quotes from the debates of the era, shows many parallels with the arguments surrounding many of the copyright, library filtering and open access debates of today:
“The placing of a large collection of books within the reach of school children, without money and without price, will place all children on an equality. The child who has access to many books at home will not have so great an advantage as now over the child who cannot afford to own costly books of reference.”via LISNews“…If Oil City should have an institution of that kind, it would prove the ruination of hundreds of young persons, who would waste their time and corrupt their minds by reading cheap sensational novels.”
“People who claim that the reading of (dime) books…will injure the young should investigate carefully what these young ones are reading now.”
“The argument that reading works of fiction is injurious to the minds of working men is often advanced by men who themselves enjoy perusing such books.”
“The final (election) tally: 466 against the library, 982 for the library.”
There has been a lot of rightfully worried commentary about a recent decision by the US Court of Appeals for the First Circuit that found that intercepting and copying users' emails by an email service provider did not violate US wiretap laws. See: EFF (Online Privacy "Eviscerated" by First Circuit Decision); WIRED (E-Mail Snooping Ruled Permissible); and, Slashdot (Appeals Circuit Ruling: ISPs Can Read E-Mail). As EFF put it:
The defendant in the case is a seller of rare and used books who offered email service to customers. The defendant had configured the mail processing software so that all incoming email sent from Amazon.com, the defendant's competitor, was copied and sent to the defendant's mailbox as well as to the intended recipient's. As the court itself admitted, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."Read the 16-page decision (and 37-page dissent): US v. Councilman [PDF] or HTML.
Now I in no way want to de-emphasize the dangers to privacy that this decision represents. If intercepting email is not a violation of the wiretap act, then all sorts of internet privacy goes out the window. If this ruling is not overturned, Congress will have to act to protect all of our privacy.
However, the defendant in this case, Bradford C. Councilman, may not have done himself any favors by winning. The problem is, by convincing the court that the emails intercepted were in "electronic storage," the defendant has pretty much made the case that he is guilty of criminal copyright infringement. Additionally, he would also be liable for huge amounts of civil damages for willful copyright infringement as well. From the decision:
According to the Indictment, on or about January 1998, defendant directed Interloc employees to write computer code to intercept and copy all incoming communications from Amazon.com to subscriber dealers. The Interloc systems administrator wrote a revision to the mail processing code called procmail.rc ("the procmail"), designed to intercept, copy, and store, all incoming messages from Amazon.com before they were delivered to the members' e-mail, and therefore, before the e-mail was read by the intended recipient. Defendant was charged with using the procmail to intercept thousands of messages. Defendant and other Interloc employees routinely read the e-mails sent to its members seeking to gain a commercial advantage.[emphasis added]Hmmmm....According to the statutes on criminal copyright infringement, 17 USC 506:
Any person who infringes a copyright willfully either -The criminal copyright infringement indictment just about writes itself. Copying the emails is a clear infringement of the right of reproduction. Ordering employees to write a program to copy emails seems pretty willful to me. Finally, the infringement was done for purpose of "commercial advantage." Slam dunk. Interestingly, as long as the commercial value of the emails was greater than $2,500 (which is likely) then the criminal penalties for both infringement and wiretapping are equivalent.(1) for purposes of commercial advantage or private financial gain, or
Bonus. The civil penalties for willful infringement are much higher than one can usually get for wiretapping. I mean, heck, up to $150,000 per email copied! All Amazon has to do is sue.
The only problem with this theory, however, is that the statute of limitations for criminal copyright infringement is five years (which means you normally can't prosecute someone five years after the crime occurs). I know that the infringement started in 1998 and Councilman was indicted in 2001. However, these aren't enough facts to know whether or not the statute of limitations will preclude prosecution for criminal copyright infringement.
So, while this decision remains a serious threat to our privacy, if it can be shown that the interceptions were for "commercial advantage" then the Copyright Act comes to the temporary rescue (and perhaps provides even worse penalties).
UPDATE
The Washington Post (annoying reg. req.) has an excellent editorial on this case today (Derail E-Mail Snooping). As does the New York Times (Intercepting E-Mail).
Self-proclaimed LawGeek, EFF attorney, and fellow Copyfighter Jason Schultz posted a neat little comparison of the Long Room Library at Trinity College in Dublin and the Jedi Archives in Star Wars: Episode 2: Attack of the Clones (George Lucas: Public Domain Pirate). See for yourself:
Jason notes that "Lucas can't be sued for copyright infringement because the Long Room Library was built between 1712-1732. Lucky for him there wasn't a Thomas Burgh Copyright Term Extension Act back then. I mean theft is theft, right? Just like shoplifting a CD from a music store." Well, here is something that is still in copyright, but Hollywood thinks can be stolen:
The first photo, according to the Museum of Hoaxes (Lady Liberty on Lake Mendota) is thanks to:
Jim Mallon and Leon Varjian, the two leaders of the University of Wisconsin-Madison's notorious Pail and Shovel (P&S) party ... [who had] promised to buy the Statue of Liberty and bring it to Wisconsin. Being men of their word, they actually made good on their campaign vow, much to everyone's surprise....Varjian claimed that the statue had been flown in by helicopter, but that the cable holding it had snapped causing Lady Liberty to crash through the ice until only the top of her head and her arm remained above water.The other photo is from some bogus disaster movie, called The Day After Tomorrow or some such pretentious nonsense.
via Satellite News
The INDUCE Act makes it a crime to induce copyright infringement in very broad terms. Most of the commentary on the Act and what technologies, creativity and innovation it threatens have focused on two types of infringement, those of the right of reproduction (the right to make copies) and the right of public distribution. We should remember, however, that there are other exclusive rights that can be infringed. The intersection of the INDUCE Act with these other exclusive rights will create an even broader swath of technology and acts that Hollywood will have an effective veto over. Let's consider one of these other rights and the technologies that might be affected.
According to 17 USC 106, the second exclusive right is the right "to prepare derivative works based upon the copyrighted work."
Hmmm, I would imagine that it will be much easier for Hollywood to go after websites that promote fan fiction. Computer game companies that do not like modding can go after websites that teach people how to mod computer games. Websites that encourage or promote Machinima are in deep trouble. Things like remix "construction sets" would probably also be under legal threat, even if they didn't contain any unauthorized material. Certain editing technologies like the ClearPlay DVD player, which allows parents to skip offensive portions of a DVD, would certainly be more threatened than they are now. See, Liberals, Conservatives Favor Different Kinds of Censorship. Third-party annotations? Well, those are right out. Heck, it might be that a parody would be illegal because it encourages the creation of derivative satires. Anything that encourages you to change, edit, or manipulate copyrighted content would likely be forced to incorporate DRM else the technology provider be sued.
Just imagine if SCO, the company that wants to stop open source, had INDUCE in its arsenal. Linux, which never had much of a process (until recently) to ensure that submitted code was clean of adverse copyrights, would be toast. And how long before SourceForge and O'Reilly get C&D letters?
Now Hollywood might not win all these potential lawsuits, assuming the defense can afford to go all the way through trial and risk having a jury look askance at what they're doing, but how heavy will the threat of litigation weigh on those who encourage creation?
Joe Gratz has an interesting post that notes some of the ads showing up in his Gmail account (Gmail Ads). The ads are for two sites that purport to provide information about profiting from the public domain: How To Find, Re-Package And Sell Public Domain Content As Your Own Moneymaking Information Product and How to Profit From Public Domain Information. Discuss copyright and the public domain in your emails much, Joe?
But that's not the point. As Gratz says,
This is not what we’re fighting for.
I've long been a fan of annotating works. I think it is a wonderful thing if people want to add commentary and/or criticism to another work. Fan or expert commentaries for DVDs, for example, could be a great source of additional value for DVDs. Imagine critic Roger Ebert providing commentaries for any DVD he wants.
That is why I've written a great deal about the Clean Flicks case, in which Hollywood is attempting to make annotations illegal. You can read some of my past stuff on Clean Flicks on LawMeme. Start with these two articles and follow the links: Hollywood Industry Mag Unconvinced by DGA Position and The Hypocrisies of the Writers Guild of America, West.
Therefore, I am quite excited by a report in the SF Gate that two major retailers, Wal-Mart and K-Mart, will soon be selling a DVD player that has some annotation capabilities (DVD player to edit movies: Technology allows viewer to bypass offensive content). Now, unfortunately, these players only allow one to skip existing content, although you might be able to do some pretty interesting stuff with that *cough*PhantomEdit*cough*. Still, this is annotation. You may not be in favor of removing offensive content in movies, but if Hollywood can stop this, they can stop people from adding commentaries, or remixing content in really creative ways.
Also, note that this avoidance of offensive content is being done by the consumer and not the government. One would think the FCC and DOJ would be very supportive of the defendants in the Clean Flicks case, being as it would save them all that trouble of acting as censors and all.
via JD Lasica
Well, technically, the treaty is called the WIPO Treaty for the Protection of Broadcasting Organizations, cuz heaven knows they're all faced with extinction. The draft treaty will be discussed June 7-9 by WIPO's Standing Committee on Copyright and Related Rights (SCCR), which will then "decide whether to recommend to the WIPO General Assembly in 2004 that a Diplomatic Conference be convened." A diplomatic conference can adopt a treaty. The treaty will not go into effect, however, until a certain number of countries have acceded to it. The draft of the treaty is available here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].
This treaty is really a nasty bit of work. It will give broadcasters, not copyright holders but broadcasters, a number of exclusive rights in their broadcasts, such as fixation, reproduction and distribution, whether or not the broadcast is of a public domain work. Moreover, the treaty would require signatories to prevent circumvention of those rights.
Oh yeah, the treaty would also apply to "cablecasters" and the United States (all alone on this one, apparently) wants the treaty extended to cover "webcasters." What exactly constitutes a webcaster isn't entirely clear, perhaps only streaming, perhaps HTTP. While the US is not a signatory to the previous treaty on broadcast, our efforts on negotiating this one indicate we are likely to sign on.
Read on for a look at this monstrosity...
Background
EFF's Consensus at Lawyerpoint, an anti-broadcast flag blog, reported on the origins of this treaty back in August 2002 (Europeans push WIPO Broadcast Treaty to create "fixation rights"). Last October James Love, director of the Consumer Project on Technology, wrote (with comments and suggestions from EFF's Cory Doctorow) an excellent analysis of an earlier draft of the treaty ([DMCA-Activists] On the Proposed WIPO XCasting Treaty). CPTech maintains a website tracking the treaty (The proposed WIPO Treaty for the Protection of the Rights of Broadcasting, Cablecasting and Webcasting Organizations).
Sui Generis Copyright-like Protection for Broadcasts
The treaty would give (among others) the following rights to broadcasters, cablecasters and, if the US has its way, webcasters: fixation, reproduction and distribution. Of course, there is no limit on what is covered by the treaty, as long as it is "broadcast" and consists of "sounds or of images or of images and sounds" (although why they couldn't just say "images and/or sounds" is beyond me). In other words, broadcast of public domain works like Dawn of the Dead would be covered along with works for which the broadcaster owns the copyright. Heck, you could start a radio station that exclusively broadcast Creative Commons-licensed freely distributable works and keep anyone from recording your broadcast.
Why bother with copyright? Simply "broadcast," or in the US's version, "webcast" all your material. Instead of connecting to an FTP server to get video or music you would connect to an ongoing "webcast" of the media, so that way, the broadcaster can keep control of the media even if it isn't copyrightable.
Article 8
Right of Fixation
Broadcasting organizations shall enjoy the exclusive right of authorizing the fixation of their broadcasts.
No more VCR, DVD-R or TiVo for you. So much for time shifting. Goodbye Sony v. Universal, it was nice knowing you.
This is the mandated broadcast flag. If the broadcaster doesn't want you recording it, you don't have a right to.
Article 9
Right of Reproduction
Alternative N
Broadcasting organizations shall enjoy the exclusive right of authorizing the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts.
Alternative O
(1) Broadcasting organizations shall have the right to prohibit the reproduction of fixations of their broadcasts.
(2) Broadcasting organizations shall enjoy the exclusive right of authorizing the reproduction of their broadcasts from fixations made pursuant to Article 14 when such reproduction would not be permitted by that Article or otherwise made without their authorization.
More broadcast flag goodness. Even if you are allowed to record it, the broadcaster can control how you can reproduce it. That way, if you want to shift the latest Sopranos from the TiVo in the living room to your laptop to watch on the plane, the broadcaster can stop you.
The US and, for some reason, Egypt support alternative "O", which protects broadcasters from reproductions of unauthorized fixations.
Article 10
Right of Distribution
Alternative P
(1) Broadcasting organizations shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of fixations of their broadcasts, through sale or other transfer of ownership.
(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the fixation of the broadcast with the authorization of the broadcasting organization.
Alternative Q
Broadcasting organizations shall have the right to prohibit the distribution to the public and importation of reproductions of unauthorized fixations of their broadcasts.
In other words, no filesharing of broadcasts. Don't you dare make the fixation you made of ABC's broadcast of the President's State of the Union address (SotU) available on KaZaA.
Article 11
Right of Transmission following Fixation
Broadcasting organizations shall have the exclusive right of authorizing the transmission of their broadcasts following fixation of such broadcasts.
Don't webcast what you've saved previously. Not only can't you put your fixation of the SotU on KaZaA, you won't be able to webcast it either.
Now, governments can make the same exceptions to these broadcasting rights as they "provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works." But they don't have to. Nor is it clear to me, under recent copyright decisions, that the Constitution requires the US to do so.
Term of Protection and Formalities
Article 15
Term of Protection
The term of protection to be granted to broadcasting organizations under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which thebroadcasting took place.
Great. Copyright isn't long enough we have to provide protection for the broadcasts for fifty years in addition? So, forty years from now, when your grandchildren want to use a clip from television today to illustrate a report on the popular culture of their grandparent's era, they'll have to clear permissions with the television station that broadcast the clip (assuming we still have television stations then).
The previous treaty had a length of twenty years and, as we all know, broadcasters in countries that signed the treaty have suffered greatly from this length.
Article 18
Formalities
The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality.
No pesky registration requirements or anything. That way it is very difficult for people to know who owns the rights to what decades from now.
DMCA for Broadcast Flag
Article 16
Obligations concerning Technological Measures
(1) Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by broadcasting organizations in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their broadcasts, that are not authorized or are prohibited by the broadcasting organizations concerned or permitted by law.
Alternative V
(2) In particular, effective legal remedies shall be provided against those who:
(i) decrypt an encrypted program-carrying signal;
of the broadcasting organization that emitted it;(ii) receive and distribute or communicate to the public an encrypted program-carrying signal that has been decrypted without the express authorization
(iii) participate in the manufacture, importation, sale or any other act that makes available a device or system capable of decrypting or helping to decrypt an encrypted program-carrying signal.
Alternative W
(2) [No such provision]
This is the equivalent of the passage in the WIPO Performances and Phonograms Treaty (WPPT) that the US used as one of the justifications for the passage of the DMCA. So, not only does this treaty require a broadcast flag, it will be illegal to circumvent it.
Article 17
Obligations concerning Rights Management Information
(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute or import for distribution fixations of broadcasts, to retransmit or communicate to the public broadcasts, or to transmit or make available to the public fixed broadcasts, without authority, knowing that electronic rights management information has been without authority removed from or altered in the broadcast or the signal prior to broadcast.
(2) As used in this Article, “rights management information” means information which identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast, and any numbers or codes that represent such information, when any of these items of information is attached to or associated with 1) the broadcast or the signal prior to broadcast, 2) the retransmission, 3) transmission following fixation of the broadcast, 4) the making available of a fixed broadcast, or 5) a copy of a fixed broadcast being distributed to the public.
And don't try to make your copy of the broadcast of the State of the Union look like a legal, unbroadcast version.
Article 21
Provisions on Enforcement of Rights
(1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.
(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights or violation of any prohibition covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.
Many people argued that the WPPT didn't require the US to pass the DMCA, as Congress concluded, because the US already adequately protected the rights of copyright owners. As the US doesn't protect any "broadcast" rights (other than some "theft of service" stuff), this provision would pretty much require a US Broadcast Flag DMCA law to be passed.
Conclusion
This is bad, bad, bad. What more can I really say?
Conservative Senator Orrin Hatch (R - UT) has frequently cast aspersions on sexually offensive broadcast programming. For example, see his recent comments regarding the current brouhaha over indecency on television (Hatch Decries Declining Morals on Broadcast TV). Yet, the logic of his statements on behalf of the recently introduced "Protecting Intellectual Rights Against Theft and Expropriation Act" (PIRATE Act) would have the Department of Justice lawyers working on behalf of pornographers. In Hatch's world, the FCC would work to crackdown on indecency while the DOJ fought on behalf of pornographer's rights.
The PIRATE Act
Xeni Jardin of WIRED was, I believe, the first traditional journalist to write about the bill (Congress Moves to Criminalize P2P).
The essentials of the bill are actually quite straight forward. Instead of being required to bring only criminal copyright infringement prosecutions, the Act would permit the DOJ to bring civil copyright infringement lawsuits against copyright scofflaws. The bill does not change the standards for triggering DOJ concern under 18 USC 506 (basically, willful infringement for commercial advantage or a lot of willful infringement for no gain). The bill also establishes a pilot/training program and requires an annual report from the DOJ. Up to $2,000,000 may be allocated for the program.
There is one other important aspect of the bill. Once a copyright infringer has been busted by the DOJ and forced to pay a fine, the copyright owner can still sue the infringer for more damages. With a successful federal prosecution in hand, such a lawsuit would be a slam-dunk. Until the statute of limitations runs out (generally three years), a government-busted infringer is basically at the mercy of the copyright owner, who could likely bankrupt them on a whim. The only limitation on this is that any restitution payed due to the DOJ lawsuit would reduce or "offset" any subsequent civil action penalty. With a minimum penalty of $750 per infringement (and up to $150,000), this still leaves a major sword hanging over the head of DOJ-busted infringers.
Analysis and Commentary
Joe Gratz is absolutely right when he says this proposed act is simply rent-seeking (RIAA’s Next Step: A $2 Million Gift From Taxpayers):
[The Act] shifts the costs of civil copyright enforcement from copyright holders to taxpayers. The direct cost is $2 million dollars – a quick, easy $2 million wealth transfer to rent-seekers from society at large. Perhaps the larger cost is the further erosion of the public’s belief in the separation between government and big business.
Furdlog points out another cost of the Act; let's call it an "opportunity cost" (OK, That’s It):
Maybe these legislators think that the FBI should be spending their time on KaZaA instead of helping to explain the threat of terrorism to Condi Rice and the rest of this administration?
This theme is continued in the Washington Post (reg. req.) ('Pirate' Bill Aims Law at Song Swappers). Fred von Lohmann of EFF is quoted as saying, "The drumbeat here is that the entertainment industry would really appreciate it if the DOJ would do their dirty work for them." This is also a cost that can't be calculated in dollar bills. So far, the RIAA hasn't actually gone to trial. You can be sure when they do, the publicity won't be pretty. How much better for some AG to take some of the public heat, while the RIAA gets the deterrence benefit.
Speaking of the RIAA, co-Copyfighter Donna Wentworth points out the hypocrisy of the copyright industry's support for the bill (Funding the War on Filesharing):
Okay--so the recording industry rejects voluntary collective licensing, implying that it's a compulsory system and therefore tantamount to the dreaded government solution to a private sector problem. Yet it supports the PIRATE Act--a government solution that would have taxpayers paying for lawsuits, not music.
Speaking of hypocrisy, well, not exactly, we come to the part of this posting in which I explain how Sen. Hatch becomes the pornographer's best friend.
Hatch and Pornography
Sen. Hatch and Sen. Leahy (D - VT) are co-sponsors of the bill in the Senate and both had press releases trumpting how well they've done what Hollywood requested of them. See Leahy's press release here: Leahy-Hatch Bill Takes Aim At Copyright Infringement. However, I found Sen. Hatch's press release more entertaining: Hatch Continues to Fight Against Copyright Infringement.
Unlike Leahy's press release, which focuses solely on copyright infringement, Hatch's discussion reveals a strange obsession with pornography on P2P networks:
Unscrupulous corporations could distribute to children and students a “piracy machine” designed to tempt them to engage in copyright piracy or pornography distribution.
Unfortunately, piracy and pornography could then become the cornerstones of a “business model.” At first, children and students would be tempted to infringe copyrights or redistribute pornography. Their illicit activities then generate huge advertising revenues for the architects of piracy. Those children and students then become “human shields” against enforcement efforts that would disrupt the flow of those revenues. Later, large user-bases and the threat of more piracy would become levers to force American artists to enter licensing agreements in which they pay the architects of piracy to distribute and protect their works on the Internet.
....
Public health and safety are also directly threatened by business models that tempt children toward piracy and pornography and then use them as “human shields” against law enforcement.
My first thought was, "I'm surprised Hatch didn't pull a Gen. Jack D. Ripper imitation and start calling for protecting the precious purity of our children's bodily fluids." My second thought was, "does Hatch know what he is saying?"
Perhaps Hatch doesn't realize this, but most pornography is copyrighted and, as Hatch notes, is frequently distributed via filesharing networks. Since Hatch wants to stop copyright infringement and also discourage the redistribution of pornography, there is only one logical conclusion. This new law is meant to encourage the DOJ to go after those infringing pornography copyrights through P2P filesharing. By suing those engaged in pornography piracy, the DOJ could accomplish two of Hatch's goals at once: reducing infringement and pornography redistribution.
Titan Media, a producer of gay pornography, is well-known for its aggressive copyright infringement actions (Titan Media Pumped-Up over digital distribution). I'm sure that they would be more than happy to cooperate and coordinate with DOJ lawyers to stop piracy of their products. How proud Hatch will be when the first DOJ-acquired restitution checks are turned over to purveyors of smut.
Hatch and Titan Media in agreement at last.
Outside the System has a thoughtful discussion (and lots of links) about some of the issues some are having with Creative Commons, though they generally support it (The Fragmentation of Creative Commons). I am a supporter of Creative Commons, but I agree that there are some important issues being raised here. Some of these problems are simply ones of education (in the future we will all be copyright specialists), but others go to promoting the values that sparked the CC revolution in the first place. See also, Larry Lessig on related issues (The logic of IP), which draws on points made by Scott Matthews.
Donna Wentworth has made her blog, Copyfight, a must-read since its beginning. That is why I am honored to join her and some most excellent colleagues in continuing Copyfight as a group blog. I will be posting along with Elizabeth Rader, Jason Schultz, Aaron Swartz, and Wendy Seltzer. Read the greeting message: Copyfight--the Expanded Edition. The blog description:
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development and technological innovation that creates--and will recreate--the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.
I'll continue to post here, of course, especially my longer pieces.
The LA Times (reg. req.) reports that California state legislators are hauling water for Hollywood once again (Setting a Trap for Net Pirates). The basic idea of the bill is to extend a "true name and address" statute to cover virtually all exchanges of copyrighted audiovisual information. That is, if you send someone a copy of a recording or audiovisual work electronically without also providing your true name and address, you could be fined $2,500 and spend a year in the clink.
Read Assembly Bill 2735 (the Assembly Version): An act to amend Section 653v of, and to add Section 653aa to the Penal Code, relating to Internet piracy.
What is the point of this bill? According to a sponsor:
[State Sen.] Murray [D - Culver City] says the point isn't to take names; his idea is to give state prosecutors, who have no jurisdiction over copyright infringement, a charge they can bring against online pirates.
Hmmmm ... the concept of federal preemption of copyright law comes to mind. One might argue that many states have "true name and address" statutes, but they generally apply only to sales of physical goods. Like copyright law, this proposed law applies to any transfer (outside your home and family), not only sales. If this isn't preempted I'm not sure what would be.
And what is this? Hollywood can't afford to sue people? We citizens of California have to expend precious tax dollars and limited law enforcement resources on copyright enforcement because Hollywood is too darn cheap? With massive statutory copyright damages available as a remedy, there is no excuse for Hollywood not to prosecute copyright infringers directly. Heck, it could even be a profit center.
An Attack on Privacy and Anonymity
Read the EFF press release: California Bill Backed by Hollywood Attacks Internet Privacy. The EFF notes the pernicious effects on children's privacy: "These California anti-anonymity bills would force everyone - including children - to put their real names and addresses on all the files they trade, regardless of whether the files actually infringe copyrights."
There are many more problems with this bill as well. EFF notes that there are no exceptions for fair use. For example, if one emails a friend a copy of a political campaign commericial that includes copyrighted music, I'm a Dole Man comes to mind, you can be fined and sent to jail. Heck, posting and commenting on Janet Jackson's wardrobe malfunction could get you sent to jail.
This is certainly an attack on the anonymity protections of the First Amendment. Unlike commercial "true name and address" statutes, this bill reaches beyond a state's interest in preventing fraud to cover all types of anonymous speech, including speech that is clearly protected by the First Amendment. State Sen. Murray says, "There's one way to maintain your privacy in my bill. That is not to engage in illegal activity." But that is the problem. The bill strips anonymity even when people are engaging in constitutionally protected activities. On this basis alone, I believe it is clearly unconstitutional under the First Amendment.
An Attack on the Creative Commons
Even worse, there is no exception for permission of the copyright holder. So, if I record a song and post it under a Creative Commons license that permits redistribution but reserves commercial use rights, you can go to jail for redistributing it. I mean, really, what more can be said about such an overbroad bill?
We need to have a "true names" bill for politicians. By all rights, State Sen. Kevin Murray should start calling himself State Sen. Hollywood Sycophant.
UPDATE
You can find your California State representatives here: Find Your California State Legislative Representatives. Let them know what you think of these bills.
The Progress and Freedom Foundation has recently published a study of secondary liability for P2P filesharing systems. Read the press release: P2P File-Sharing: Balancing Creativity & Innovation. Read the study: Liability of P2P File-Sharing Systems For
Copyright Infringement By Their Users [PDF].
Unsurprisingly, the study concludes that secondary liability should be attached to most P2P systems. Much of the paper is correct on it summation of current law. However, I have a serious problem with the paper's claim that it would be relatively easy to distinguish between bad technology and good technology. I'm not sure that many of the technologies that are common today would have survived the scrutiny the paper proposes.
For example, one difference between the Napster and Sony decisions is that "the balances between infringing and noninfringing uses were dramatically different. The VCR is predominantly used for noninfringing activity, while the Napster business was built almost entirely around servicing users’ infringing." But something very interesting is going on here with verb tenses. The VCR is predominently used for noninfringing activity. Indeed. But the case wasn't nearly so clear when the VCR was first introduced. Is the lesson then that copyright industries should sue before a particular technology matures?
Later in the paper this point is reiterated: "Similarly, VCRs overwhelmingly serve noninfringing uses; the result in Sony has been vindicated." Easy to see in hindsight, not so easy to see when Valenti was decrying the VCR as "the Boston Strangler." The use of the term "vindicated" sort of concedes the point that the issue wasn't clear when the decision was entered. Of course, if Sony had gone the other way, Hollywood would be proclaiming the overwhelmingly noninfringing present uses of the VCR were a result of the initial finding of contributory infringement.
Similarly, the paper argues that, "In contrast, the CD burner was clearly designed and introduced for legitimate purposes, although it can also be used to make infringing copies of CDs." Was this issue so clear when CD-ROM burners were introduced? Heck, at the beginning of the CD-R era the 650MB you could store on a CD-R was more than the average computer's entire hard drive. Tape backup was widely available ... and cheaper. And even if the ability to burn CD-ROMS was clearly a legitimate purpose at the time, really, why did the CD burners have to have the capability to burn the Red Book audio format? Couldn't the RIAA have sued to prevent the sale of CD burners or associated software that could burn Red Book audio? Seems to me that there was a pretty good argument that when consumer CD burners were first sold, the Red Book audio capability alone had overwhelmingly infringing uses. Imagine also if the internet had taken off a few years earlier, before a large installed base of CD burners existed. Wouldn't the overwhelming use of CD burners have been piracy (at least, isn't that the argument Hollywood would have made)? From a policy perspective, it also wouldn't have been very difficult for CD burner manufacturers to make sure their systems couldn't burn audio CDs.
I sort of wonder if the File Transfer Protocol, still an enormous source of piracy, could have survived this sort of scrutiny. After all, couldn't the protocol have included various filtering mechanisms and authentication?
What of BitTorrent? Isn't it overwhelmingly used for piracy right now? Of course, the benefits of BitTorrent for anyone wishing to distribute legitimate large media objects is obvious, to me. Eventually, I imagine BitTorrent (or similar swarm systems) will become significant ways for legitimate distribution of all sorts. But, as the paper refers to other P2P systems, "at present, those noninfringing uses are quite small relative to the use of these systems for widespread Internet piracy." Moreover, would my clear view of the value of BitTorrent necessarily be obvious to a judge? Who would defend Bram Cohen if Hollywood had sued when BitTorrent was first introduced?
I remain unconvinced that we can permit extensive secondary liability because it will be relatively easy to target the "bad" technologies without unduly burdening innovation.
via Furdlog