Archive for the ‘DRM’ Category
Some more on ISPs and 6 Strikes – Where’s The Citizen Policing?
posted by Deven Desai
I wrote about the Six Strikes plan earlier today. I wanted to add a call for transparency on download speeds so the average citizen could police the penalties. The Wired report noted that responses “might include reducing internet speeds.” Given the problems with ISPs providing clear and consistent speeds, it seems to me that if they can reduce speeds in the name of copyright enforcement, they should also be open about what those speeds are. Google’s speed test may be useful and its M-Lab may play a role (M-Lab claims “Measurement Lab (M-Lab) is an open, distributed server platform for researchers to deploy Internet measurement tools. The goal of M-Lab is to advance network research and empower the public with useful information about their broadband connections. By enhancing Internet transparency, M-Lab helps sustain a healthy, innovative Internet.” Hmm. I wonder whether Google’s foray into broadband will not only show the speeds easily but jump onto the ISP copyright enforcement bandwagon. I suppose that would be a consistent approach given the copyright/search results policy, but it may be one that starts to indicate that the alleged tech industry/online activist solidarity is well, alleged.
October 12, 2012 at 2:49 am
Posted in: DRM, Google and Search Engines, Intellectual Property, Technology, Web 2.0
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In case you missed it, ISPs now have a 6 Strikes Plan, A Whiff of ICANN?
posted by Deven Desai
Ah yes the ever-vigilant Internet democracy must have been watching, or maybe it agreed to ISP policing for copyright sort of like Google’s decision to take down search results for copyright issues. Who knows? The Shadow? Anyway, ISPs are now going to monitor usage to police copyright scofflaws. According to Wired, it is a six strikes plan
backed by the Obama administration and pushed by Hollywood and the major record labels to disrupt and possibly terminate internet access for online copyright scofflaws. … The plan, now four years in the making, [will trigger with] four offenses, [participating] residential internet providers {including AT&T, Cablevision Systems, Comcast, Time Warner Cable and Verizon] [will] initiate so-called “mitigation measures” (.pdf) that might include reducing internet speeds and redirecting a subscriber’s service to an “educational” landing page about infringement. The internet companies may eliminate service altogether for repeat file-sharing offenders, although the plan does not directly call for such drastic action.
The action reminds me a little of Stanford University policy on file sharing where three strikes means you are shut out of Internet access and must pay $1,000 to reactivate. As more and more of life is online, I wonder about such a broad stroke for copyright violators. Then again some countries take away driver’s licenses for drunk driving. The U.S.A. is more lax on that front, I think. I am surprised to see that the Center for Copyright Information has a mix of members including Gigi Sohn; as Tim Lee put it “The picks suggest that the architects of the “Copyright Alert” system may be making a serious effort to strike a balance between the interests of copyright holders and the rights of users.”
Tim explained, however, that the board “has little direct authority over the Copyright Alerts system. The real power lies in the hands of the CCI’s executive board, which is stocked with content companies and ISPs.” He has some faith that the advisory roles give the noisy exit power to “public interest advocates like Berman and Sohn some leverage” who “can always resign in protest, giving the CCI a black eye in the press.” I am not so sure that anyone will give a damn in a way that can change the system even if such an exit is needed.
I also wonder whther this is a whiff of ICANN. Tim explained (he is rather good isn’t he?) that “The Copyright Alerts system will provide users with an opportunity to appeal “alerts” to an independent entity. That independent review process will be overseen by the American Arbitration Association. The AAA will train independent reviewers who will, in turn, hear appeals by individual users.” Given the numbers needed and the way ICANN and the UDRP has operated, I am again a bit wary of how this will all play out.
Given the folks involved, I hope my concerns do not pan out. But I would say keep an eye on this one before someone has to say “Help me Obi Wan, err Google? You’re my only hope.” They may not be up for the battle either.
October 11, 2012 at 8:01 pm
Posted in: DRM, Intellectual Property, Political Economy, Politics, Privacy, Web 2.0
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What Is IP Good For? Madhavi Sunder Has an Answer: The Good Life
posted by Deven Desai
Why bother to have intellectual property rights? That question is the question for IP. Madhavi Sunder has answers. Some excellent work on the subject has looked at whether economics has new answers about IP rights and their structure. Others have taken a hard look at whether any economic argument works. Like books by James Boyle, Brett Frischmann, and Julie Cohen, Sunder’s book runs right at intellectual property law and tackles the hard question. Sunder proposes that we have left off asking what is the good; not just the good produced but the good for all of us. In the tradition of critique she asks about power dynamics and whether free culture is also fair culture. She forces us to consider the realities of exchange culture and rules that bind our ability to engage and thus limit our freedom to author ourselves. In my work on trademarks, brands, and culture, I looked at specific ways we have moved from one-way mass market systems to two-way interactive ones as I questioned whether trademark rules make sense and improve society. I love this book because Sunder takes this point and drills into local, national, and global levels. She challenges current narratives about how and why we create with concrete examples of overflowing creation, unfair results, and troubling societal outcomes all of which abound despite claims about incentives and social welfare creation in IP law. Still, she believes the law has the foundations for “plural values at stake in cultural production.” Her prescription is that we should be “ripping, mixing, and burning” law to get to the world where we have not only goods, but a good life. I recommend the book and look forward to our discussion here at Concurring Opinions.
September 11, 2012 at 1:40 am
Posted in: Culture, Cyberlaw, DRM, Economic Analysis of Law, Innovation, Intellectual Property, Symposium (From Goods to a Good Life), Web 2.0
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Symposium on Madhavi Sunder’s From Goods to a Good Life, September 11-13
posted by Deven Desai
This week Concurring Opinions is hosting a symposium on Madhavi Sunder’s From Goods to a Good Life (Amazon) published by Yale Press which offers a preview. Madhavi’s work has pushed how many colleagues and I think about intellectual property. I am honored to organize this discussion.
I have more to say about the book, but to whet your appetites, I offer this quote:
The full cultural and economic consequences of intellectual property policies are hidden. We focus instead on the fruits of innovation—more iPods, more bestsellers, more blockbuster drugs—without concern for what is being produced, by whom, and for whose benefit. But make no mistake: intellectual property laws have profound effects on human capabilities…
The symposium will include contributions from Mike Carroll, Laura DeNardis, Brett Frischmann, Mike Madison, Mark McKenna, Frank Pasquale, Zahr Said, Lea Bishop Shaver, Jessica Silbey, and Molly Van Houweling.
September 10, 2012 at 11:24 pm
Posted in: Culture, Cyberlaw, DRM, Economic Analysis of Law, Innovation, Intellectual Property, Political Economy, Symposium (From Goods to a Good Life), Web 2.0
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Adam Thierer on Classical Liberalism on the Net
posted by Deven Desai
As the political season is in full swing and folks claim to understand SOPA, PIPA, etc., I thought I should point people to Adam Theirer’s post Mueller’s Networks and States = Classical Liberalism for the Information Age. I knew Adam a little before my stint at Google. I came to know him more while there. I do not agree with everything Adam says. Rather, he reminds me of folks I knew in law school. I disagreed with many people there, but respected the way they argued. Their points made me rethink mine and perhaps improve them. The distinction between cyber-libertarianism and Internet exceptionalism that Berin Szoka and Adam try to make is important. I am not sure it succeeds but as Adam says
They are not identical. Rather, as Berin and I argued, they are close cousins. Properly defined, cyber-libertarianism is essentially the application of traditional libertarian thinking — which is more properly defined as classically “liberal” — to Internet policy issues. Berin and I define “cyber-libertarianism” as “the belief that individuals — acting in whatever capacity they choose (as citizens, consumers, companies, or collectives) — should be at liberty to pursue their own tastes and interests online.” Internet exceptionalism, by contrast, is the belief that the Internet has changed culture and history profoundly and is deserving of special care before governments intervene. But that does not necessarily tell us what sort of philosophy or core tenants ultimately animate exceptionalism going forward. (emphasis added by me)
This last point is the reason I call out the piece. So far I have not seen anything that addresses the point in a satisfactory way. Adam and Berin face this gap and try to fill it. Agree. Disagree. That is your choice. But read the whole thing and see where you end up. One final note, I think classical liberalism as Adam defines it may be more empty than it seems. For now I cannot explain why. For that I apologize to those of that camp, but I am working on that. Oh which reminds me, Julie Cohen’s book, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice, takes on this issue.
September 2, 2012 at 2:09 pm
Posted in: Cyber Civil Rights, Cyberlaw, DRM, Innovation, Intellectual Property, Jurisprudence, Legal Theory, Technology
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Will We Finally Have a la Carte T.V. Content?
posted by Deven Desai
The days of stopping someone from watching show X on a large T.V. but through and Internet device should be numbered. Google TV crashed. Fine, things fail. But the general blocking of content based on medium is a dying strategy. We are in stage 2 of the death of T.V., as we know it. Google, Apple, MS, Amazon, Netflix, fill-in-the-corp TV will live. HBO GO started to break from the pack and Hulu may be following. Why stage 2? HBO et al. are kissing up to cable. You have to authorize your content. In English, you have to prove you pay the cable company for your HBO subscription, Hulu, etc. before you can get it on demand for iPads etc. Here’s an example of silliness. A friend had a Hulu subscription but could not watch on his T.V. via a Roku player. The T.V. is simply a big monitor, and he could attach his computer. But the minds of Hulu thought “NO! Not on a T.V.!” The result was wondering whether to drop Hulu, not oh Hulu you’re so great.
Content should slip the TV versus computer snag soon. So, hello, Stage 3; thank you commodity cloud computing.
Customers want their content on demand. College students forgo cable fees, because they are so damn expensive and carry mainly crap they don’t want. Streams work for them, because they have the campus network. But many I know have cut the cable and gone to streaming only. And why not? Lower cost is clear. Plus, no one talks about whatever is today’s Friends at the water cooler because a #1 show is nowhere near as watched. Must see T.V.? Please.
I will bet that the demand for direct delivery of content will mean a new order for T.V. and film. As a technical matter, Ed Felten reminded me that asynchronous delivery of content poses problems. He knows far more than I. But consumers will want to buy (or direct subscribe to) content and will use the Internet to get that content. Producers like HBO will lead the way save for threats from cable companies. Assuming tensions in that sphere, someone will figure out how to leverage current network advances to store content cheaply, deliver it so that peaks are handled, and cable boxes will go the way of the DoDo.
In other words, why rely on cable for the menu of content? Cable’s value is the delivery of whatever content someone wants. The odd part is that I still subscribe to cable and will even watch a movie with commercials (Ocean’s 11 on TNT, Star Wars) when it is one rather than getting the DVD I own. But my way will die. I may abandon it too. And if the older folks stray, look out cable. The young ‘uns are already gone. More will follow. Then again the Lakers are on tonight. So maybe sports will save cable. Then again, sports teams own their cable stations when possible. Hey cable, say it with me: NBA, NFL, MLB, NHL on demand with a little ESPN for kicks?
May 1, 2012 at 8:10 pm
Posted in: Culture, Cyberlaw, DRM, Intellectual Property
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Print is Dead; Long Live the Word (Britannica Stops the Presses)
posted by Deven Desai
Print is Dead. Long Live the Word. Britannica Stops the Presses. Welcome to the Henry Blake cliche festival. CNN Money reports that after 244 years the print edition of Britannica will no longer be offered. As many may recall, one study indicated the Wikipedia was more close to as accurate than Britannica. It may come as no surprise to those who know me that I tend to ask questions. My parents we of the “Look it up” school of thought. They bought World Book (remember them?) which fell short of my needs quickly. Then they bought a set of Britannica. It was lovely. Leather (or simulated perhaps), gilt edged, the micro and macro pedias, lined up in the den on wooden shelves. I ceased talking to my parents and went to the books. I loved them. In grade school, I learned that they were not to be cited but used to guide deeper research. Yes, grade school. So I was quite fortunate. My parents could afford such a luxury, and I reveled in it.
But let’s not obsess over print. Yes, analog copies are more difficult to reach out and destroy. I questioned the ability to manipulate e-books when I wrote “One possibility of the new technology is that books will continually evolve as authors change their mind or update a text. This idea brings images of revisionist Greedo shootings.” That ability was connected to Orwell in theory, and then when Amazon in fact used the power to remove a book, (remember it was in fact Orwell’s 1984?). But think about the costs for buying the research tool that was a multi-volume set. Today the print edition is $1395. I think was more when I was a kid, and that they used a model familiar to academics and software users (pay for updates) to generate revenue after the first sale. You also had to have room for the books. Digital divide and access to knowledge discussions can miss that the cost of the set would cover Internet access for 20 months. Of course one needs a computer too. But the computer and the Internet access can do much more than access one set of data. I suppose someone could study the cost of paper, binding, and shipping compared to the energy and materials for a computer and connection to see the true saving or lack of it. I will bet the numbers favor general purpose tech (Frischmann infrastructure ideas may be invoked here).
Digital also is a dream for the look it up model. I disagree with Carr and the Shallows analysis here. Yes, I look up things when on my e-reader (still a Kindle in fact) or online. And guess what I return to the text. I taunt students when they fail to look up words or ideas despite having the Internet at their fingertips almost all the time. To me online resources are great and to be embraced while also addressing the archiving and other issues new technologies raise.
Britannica’s President Jorge Cauz said some interesting and funny things to print junkies, “Everyone will want to call this the end of an era, and I understand that,” Cauz says. “But there’s no sad moment for us. I think outsiders are more nostalgic about the books than I am.” Given that he stated print was “less than 1% of the company’s total sales” he seems wise, and one wonders at why they didn’t kill it sooner. Other curious facts include that the online version is only 15% of revenue and “The other 85% is sales of education products: online learning tools, curriculum products and more.”
Will folks pay for the online version at $70 per year? I would guess not. Nonetheless Cauz claims that people interested in expert opinions will turn to Britannica: “Google’s algorithm doesn’t know what’s fact or what’s fiction,” Cauz concedes. “So Wikipedia is often the No. 1 or No. 2 result on search. But I’d bet a lot of money that most people would rather use Britannica than Wikipedia.” So far the evidence seems to be to the contrary. Wikipedia seems to hold up well. Stanford’s Encyclopedia of Philosophy is great too. I have argued that commons-based, Benkler goods could collapse, but for now they seem to be doing well.
So go with God, Britannica. Thank you for the years of service and enhancing my childhood. And congratulations on your new form. Like those in Good To Great, you have ditched the old method and seek to play in the new space. It is a bet, but it you are in the correct game and that is good.
March 13, 2012 at 11:02 pm
Posted in: Amazon, Culture, DRM, Intellectual Property
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Why Now? Or One Way to Understand the Importance of Configuring the Networked Self
posted by Deven Desai
Julie Cohen’s Configuring the Networked Self is different and signals that the next era of tech policy is upon us. The explosion of books about the Internet tracks the explosion of, well, the Internet. Could there be a bubble here too? Are most books simply restating and rehashing arguments from years ago? Probably. Cohen’s book, however, points the way to the next questions about not just the Internet, but how we structure the next twenty to forty years of society. She asks that we look at the state of not just networked technology, but the economy, law, and society that has emerged, how we justify it, and what it should look like going forward. Recent work by Barton Beebe, Maggie Chon, Brett Frischmann, Frank Pasquale, Daniel Solove, and Madhavi Sunder, makes me confident that the new era is here and work in it is growing. Rather than staying with the silos of the past fifteen years, this new inquiry looks to how the system works and probes whether society is reaping the benefits at large. Works like Code, The Future of the Internet, and The Wealth of Networks make important contributions to understanding and justifying certain visions of the Internet/Tech society. I believe, however, that the moment for those explorations is waning. Of course the debates regarding IP protection, open Internet, etc. will continue and there are important near-term battles there. The most pressing area for scholarship and society at large is what comes next?
Talk of innovation and what that means is rather staid and redundant. Leave X the way it is or all will cease. No. Stop X or a once shining industry will die (and you won’t get the things you thought you loved). Back and forth the players go. A closer look shows that they are fighting about their piece of the rapid growth pie. No one seems to look at exactly what innovation is at stake (is it breakthrough or tinkering and applying with a major one?), where capital is heading (is it rushing after the heady returns of early stage industries or fueling production and strong, reasonable rates of return), and how the innovation spreads wealth across society (are the benefits starting to reshape so many industries that a second wave of returns and improvements revitalizes older industries such that the middle class grows?). No one, except, Carlotta Perez and her contemporaries. They investigate the Schumpeter model but go further. Perez makes the strong case that after a technology reaches a peak, there is a crash (or two), and then the real action begins. Society must look to regulation and other mechanisms so that the true golden age arrives, one where the tech wealth spreads and production capital is the order of the day. Note that while that happens the next big tech breakthrough is likely lurking in a lab somewhere and waiting to pop out and shift the world once more.
Cohen’s book comes at the peak of the tech revolution roughly started in 1971 with the birth of the microprocessor, and is a vital resource for the turning point at which we are. I suggest that Cohen and the new wave of tech scholars looking to Sen and Nussbaum for a capabilities approach to tech policy and/or questioning a purely market-based analysis of the issues, may be understood as demanding that we get our house in order. When Cohen calls out that privacy and copyright suffer from similar conceptual problems and argues for a new way to see how individuals’ capabilities can be enhanced, she offers a claim about how to turn the tech revolution from benefiting a small, centralized few to improving the lot of the many. Perez admits that each tech cycle has somewhat specific logics and solutions. Cohen’s situated user, her critique of the specific financial system and call for sustainable development, and acknowledgment of the messy nature of culture track Perez’s insights. In each previous revolution, the turning point arrived and society constructed the way forward that accounted for the specifics of the technology as a broad matter for individuals, addressed failures in capital and labor markets, and was subject to certain cultural and political realities of the time. Configuring the Networked Self is a serious volley against remaining stuck in the recent past. In it, Cohen demands that we look to hard questions and honest insights about the system at large. She is not complacent about the future either. Instead, she makes a case for how we can and should proceed. Like all good scholarship, the book offers ideas to be tested and new questions to pursue. So read the book and let’s get to work.
These are my views. Not Google’s. In other words, attribution to my employer is foolish.
March 5, 2012 at 3:38 pm
Posted in: Configuring the Networked Self Symposium, Cyberlaw, DRM, Economic Analysis of Law, Intellectual Property, Politics, Privacy
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Ubiquitous Infringement
posted by Derek Bambauer
Lifehacker‘s Adam Dachis has a great article on how users can deal with a world in which they infringe copyright constantly, both deliberately and inadvertently. (Disclaimer alert: I talked with Adam about the piece.) It’s a practical guide to a strict liability regime – no intent / knowledge requirement for direct infringement – that operates not as a coherent body of law, but as a series of reified bargains among stakeholders. And props to Adam for the Downfall reference! I couldn’t get by without the mockery of the iPhone or SOPA that it makes possible…
Cross-posted to Info/Law.
February 27, 2012 at 2:14 pm
Posted in: Anonymity, Architecture, Culture, Current Events, Cyberlaw, DRM, Education, Google and Search Engines, Innovation, Intellectual Property, Interviews, Media Law, Movies & Television, Politics, Social Network Websites, Technology, Web 2.0
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Stealing the Throne
posted by Derek Bambauer
Ever-brilliant Web comic The Oatmeal has a great piece about piracy and its alternatives. (The language at the end is a bit much, but it is the character’s evil Jiminy Cricket talking.) It mirrors my opinion about Major League Baseball’s unwillingness to offer any Internet access to the postseason, which is hard on those of us who don’t own TVs (or subscribe to cable). Even if you don’t agree with my moral claims, it’s obvious that as the price of lawful access diverges from the price of unlawful access (which is either zero, or the expected present value of a copyright suit, which is darn near zero), infringement goes up.
So, if you want to see Game of Thrones (and I do), your options are: subscribe to cable plus HBO, or pirate. I think the series rocks, but I’m not paying $100 a month for it. If HBO expects me to do so, it weakens their moral claim against piracy.
Unconvinced? Imagine instead that HBO offers to let you watch Game of Thrones for free – but the only place on Earth you can view the series is in the Kodak Theater in Hollywood. You’re located in rural Iowa? Well, you’ve no cause for complaint! Fly to LA! I suspect that translating costs into physical costs makes the argument clearer: HBO charges not only for the content, but bundles it with one particular delivery medium. If that medium is unavailable to you, or unaffordable, you’re out of luck.
Unless, of course, you have broadband, and can BitTorrent.
As a minimum, I plan not to support any SOPA-like legislation until the content industries begin to offer viable Internet-based delivery mechanisms that at least begin to compete with piracy…
Cross-posted at Info/Law.
February 22, 2012 at 12:21 pm
Posted in: Architecture, Culture, Current Events, Cyber Civil Rights, Cyberlaw, DRM, Innovation, Intellectual Property, Legal Ethics, Media Law, Movies & Television, Politics, Technology, Web 2.0
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Cary Sherman and the Lost Generation
posted by Derek Bambauer
The RIAA’s Cary Sherman had a screed about the Stop Online Piracy and PROTECT IP Acts in the New York Times recently. Techdirt’s Mike Masnick brilliantly gutted it, and I’m not going to pile on – a tour de force requires no augmentation. What I want to suggest is that the recording industry – or, at least, its trade group – is dangerously out of touch.
Contrast this with at least part of the movie industry, as represented by Paramount Pictures. I received a letter from Al Perry, Paramount’s Vice President Worldwide Content Protection & Outreach. He proposed coming here to Brooklyn Law School to
exchange ideas about content theft, its challenges and possible ways to address it. We think about these issues on a daily basis. But, as these last few weeks [the SOPA and PROTECT IP debates] made painfully clear, we still have much to learn. We would love to come to campus and do exactly that.
Jason Mazzone, Jonathan Askin, and I are eagerly working to have Perry come to campus, both to present Paramount’s perspective and to discuss it with him. We’ll have input from students, faculty, and staff, and I expect there to be some pointed debate. We’re not naive – the goal here is to try to win support for Paramount’s position on dealing with IP infringement – but I’m impressed that Perry is willing to listen, and to enter the lion’s den (of a sort).
And that’s the key difference: Perry, and Paramount, recognize that Hollywood has lost a generation. For the last decade or so, students have grown up in a world where content is readily available via the Internet, through both licit and illicit means; where the content industries are the people who sue your friends and force you to watch anti-piracy warnings at the start of the movies you paid for; and where one aspires to be Larry Lessig, not Harvey Weinstein. Those of us who teach IP or Internet law have seen it up close. In another ten years, these young lawyers are going to be key Congressional staffers, think tank analysts, entrepreneurs, and law firm partners. And they think Hollywood is the enemy. I don’t share that view – I think the content industries are amoral profit maximizers, just like any other corporation – but I understand it.
And that’s where Sherman is wrong and Perry is right. The old moves no longer work. Buying Congresspeople to pass legislation drafted behind closed doors doesn’t really work (although maybe we’ll find out when we debate the Copyright Term Extension Act of 2018). Calling it “theft” when someone downloads a song they’d never otherwise pay for doesn’t work (even Perry is still on about this one).
One more thing about Sherman: his op-ed reminded me of Detective John Munch in Homicide, who breaks down and shouts at a suspect, “Don’t you ever lie to me like I’m Montel Williams. I am not Montel Williams.” Sherman lies to our faces and expects us not to notice. He writes, “the Protect Intellectual Property Act (or PIPA) was carefully devised, with nearly unanimous bipartisan support in the Senate, and its House counterpart, the Stop Online Piracy Act (or SOPA), was based on existing statutes and Supreme Court precedents.” Yes, it was carefully devised – by content industries. SOPA was introduced at the end of October, and the single hearing that was held on it was stacked with proponents of the bill. “Carefully devised?” Key proponents didn’t even know how its DNS filtering provisions worked. He argues, “Since when is it censorship to shut down an operation that an American court, upon a thorough review of evidence, has determined to be illegal?” Because censorship is when the government blocks you from accessing speech before a trial. “A thorough review of evidence” is a flat lie: SOPA enabled an injunction filtering a site based on an ex parte application by the government, in contravention of a hundred years of First Amendment precedent. And finally, he notes the massive opposition to SOPA and PROTECT IP, but then asks, “many of those e-mails were from the same people who attacked the Web sites of the Department of Justice, the Motion Picture Association of America, my organization and others as retribution for the seizure of Megaupload, an international digital piracy operation?” This is a McCarthyite tactic: associating the remarkable democratic opposition to the bills – in stark contrast to the smoke-filled rooms in which Sherman worked to push this legislation – with Anonymous and other miscreants.
But the risk for Sherman – and Paramount, and Sony, and other content industries – is not that we’ll be angry, or they’ll be opposed. It’s that they’ll be irrelevant. And if Hollywood takes the Sherman approach, rather than the Perry one, deservedly so.
Cross-posted at Info/Law.
February 14, 2012 at 7:40 pm
Posted in: Architecture, Culture, Cyber Civil Rights, Cyberlaw, DRM, First Amendment, Google & Search Engines, Innovation, Intellectual Property, Media Law, Political Economy, Politics, Technology, Web 2.0
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The Hardest Thing to Predict Is the Future
posted by Derek Bambauer
SOPA and PROTECT IP are dead… for now. (They’ll be back. COICA is like a wraith inhabiting PROTECT IP.) Until then, Michelle Schusterman has a terrific graphic about the movie industry’s predictions of doom with each new technological revolution. (Ditto the music industry: the player piano, radio, CDs, the MP3 player, etc., etc.) One reason for this is that it’s difficult to predict the effects of a new communications technology. People thought we’d use the telephone to listen to concerts from afar. But another reason is that content industries see advances not as an opportunity but as a threat – a threat that they deploy IP law to combat, or at least control. And in a policy space where lawmakers don’t demand actual data on threats before acting, trumped-up assertions of job loss and revenue loss can carry the day. This puts the lie to the theory that IP owners will move to exploit new communications media, if only they are protected against infringement. We didn’t get viable Internet-based music sales until iTunes in 2003, and Spotify is the first serious streaming app (the “celestial jukebox“). Think about prior efforts like Pressplay and MusicNow, and how terrible they were. Letting the content industry design delivery models is like letting Matt Millen draft your football team.
This is why piracy is a helpful pointer: it tells us what channels consumers want to use to access content. Sometimes this is just displacement of lawful consumption, as when college students with copious disposable income download songs via BitTorrent, but sometimes it indicates an unaddressed market niche (as with me and the baseball playoffs). To paraphrase Thomas Jefferson, I think a little bit of infringement now and again is a good thing. It is only when there is a viable threat in a new medium that existing players innovate – or cut deals with those who do. In that regard, even if SOPA and PROTECT IP are effective at reducing infringement, we might not want them.
Cross-posted at Info/Law.
January 31, 2012 at 6:58 pm
Posted in: Architecture, Culture, Cyberlaw, DRM, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0
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Analog Return: Vinyl, Zines and Motivation for Creation
posted by Deven Desai
Analog: The Resurrection is coming to a store near you. At least it looks that way. The Times reports that vinyl is making a comeback. I happen to have a fair amount of vinyl from when I saved up to buy LPs as a kid. But now companies like Goota Groove are among about 20 places that press vinyl and that together make up “the fastest-growing segment of the beleaguered music industry.” I have to note that the “beleaguered” view may have some challengers. TechCrunch reported that per SoundScan music sales have started to inch up. Plus according the to Times:
Last year, 2.8 million vinyl records were sold in the United States, according to the Nielsen Company, which tracks music sales through its SoundScan system. This year’s numbers are about 40 percent higher, and the real figures are higher still. Most vinyl now is sold in independent record shops, at rock clubs and through homemade Web sites. “SoundScan only gets about 15 percent,” Slusarz told [the reporter], smiling. “The majority of the stuff we press, it doesn’t even have a bar code.”
Furthermore this paper The Creative Destruction of Copyright – Innovation in the Record Industry and Digital Copying found
Eight years into a severe recession and a surge in unauthorised copying, the number of new titles published each year continues to expand at roughly the same rate of growth during the recession period as it did during the preceding boom period.
This result is counter-intuitive regarding the severity and duration of the recession. It challenges a fundamental assumption in much of the economic literature on the impact of unauthorised, digital copying, which has focused on the impact of unauthorised copying on industry revenues. According to the observations presented above, this literature will not support strong conclusions concerning copyright policy. That is because the manipulated variable in copyright policy is not suppliers’ revenues but ‘innovation and creativity’ as means to secure a diverse supply of cultural products that is responsive to societal change. The empirical findings also deflate the case for public investments in greater copyright protection, for penal procedures against so-called copyright ‘pirates’, and for setting high compensatory payments in civil cases brought by rights holders against infringers.
In short, there’s much more going on in the music market than mainstream methods of measurement capture. Indeed, small run print may be making a comeback too at least in the form of zines.
All of these points remind that creativity is not always about incentives, “MOST zines are labors of love, done as side projects and hobbies. The goal isn’t to turn a profit, but rather to capture a cultural moment, which in turn, offers the creators the freedom to explore and experiment.” In addition, the problem of capturing what is going returns here. “It’s hard to track exactly how many zines are in circulation at any time. Some are handwritten sheets that are photocopied a few dozen times, stapled and distributed by hand. Others, more upscale, are printed professionally in runs of several hundred and may be sold online.”
It seems that new creativity, old mediums, and the desire for a differently crafted artifact are driving some interesting areas of business. For those researchers, note writers, innovation junkies, and cultural theorists out there, I’d say there is some research to be done about how these businesses are doing, the size of the vinyl and/or zine market, what technology may have allowed these endeavors to take off, the non-economic motivations in place here as well as the economic ones. There may be more, but those leap to mind.
October 27, 2011 at 12:12 pm
Posted in: Cyberlaw, DRM, Economic Analysis of Law, Intellectual Property, Technology
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Health Privacy Paradigm Shift: From Consent to Reciprocal Transparency
posted by Frank Pasquale
Computational innovation may improve health care by creating stores of data vastly superior to those used by traditional medical research. But before patients and providers “buy in,” they need to know that medical privacy will be respected. We’re a long way from assuring that, but new ideas about the proper distribution and control of data might help build confidence in the system.
William Pewen’s post “Breach Notice: The Struggle for Medical Records Security Continues” is an excellent rundown of recent controversies in the field of electronic medical records (EMR) and health information technology (HIT). As he notes,
Many in Washington have the view that the Health Insurance Portability and Accountability Act (HIPAA) functions as a protective regulatory mechanism in medicine, yet its implementation actually opened the door to compromising the principle of research consent, and in fact codified the use of personal medical data in a wide range of business practices under the guise of permitted “health care operations.” Many patients are not presented with a HIPAA notice but instead are asked to sign a combined notice and waiver that adds consents for a variety of business activities designed to benefit the provider, not the patient. In this climate, patients have been outraged to receive solicitations for purchases ranging from drugs to burial plots, while at the same time receiving care which is too often uncoordinated and unsafe. It is no wonder that many Americans take a circumspect view of health IT.
Privacy law’s consent paradigm means that, generally speaking, data dissemination is not deemed an invasion of privacy if it is consented to. The consent paradigm requires individuals to decide whether or not, at any given time, they wish to protect their privacy. Some of the brightest minds in cyberlaw have focused on innovation designed to enable such self-protection. For instance, interdisciplinary research groups have proposed “personal data vaults” to manage the emanations of sensor networks. Jonathan Zittrain’s article on “privication” proposed that the same technologies used by copyrightholders to monitor or stop dissemination of works could be adopted by patients concerned about the unauthorized spread of health information.
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October 26, 2010 at 8:24 am
Posted in: Anonymity, Cyberlaw, DRM, Privacy, Privacy (Medical), Social Network Websites, Technology
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Future of the Internet Symposium: (Im)Perfect Enforcement
posted by Ryan Calo
Prohibition wasn’t working. President Hoover assembled the Wickersham Commission to investigate why. The Commission concluded that despite an historic enforcement effort—including the police abuses that made the Wickersham Commission famous—the government could not stop everyone from drinking. Many people, especially in certain city neighborhoods, simply would not comply. The Commission did not recommend repeal at this time, but by 1931 it was just around the corner.
Five years later an American doctor working in a chemical plant made a startling discovery. Several workers began complaining that alcohol was making them sick, causing most to stop drinking it entirely—“involuntary abstainers,” as the doctor, E.E. Williams, later put it. It turns out they were in contact with a chemical called disulfiram used in the production of rubber. Disulfiram is well-tolerated and water-soluble. Today, it is marketed as the popular anti-alcoholism drug Antabuse.
Were disulfiram discovered just a few years earlier, would federal law enforcement have dumped it into key parts of the Chicago or Los Angeles water supply to stamp out drinking for good? Probably not. It simply would not have occurred to them. No one was regulating by architecture then. To dramatize this point: when New York City decided twenty years later to end a string of garbage can thefts by bolting the cans to the sidewalk, the decision made the front page of the New York Times. The headline read: “City Bolts Trash Baskets To Walks To End Long Wave Of Thefts.”
In an important but less discussed chapter in The Future of the Internet, Jonathan Zittrain explores our growing taste and capacity for “perfect enforcement.” Read the rest of this post »
September 7, 2010 at 2:58 pm
Posted in: Architecture, Articles and Books, Book Reviews, Cyber Civil Rights, Cyberlaw, DRM, Jurisprudence, Legal Theory, Symposium (Future of Internet), Technology
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Has the Future of the Internet happened?
posted by Jonathan Zittrain
I wrote the Future of the Internet — And How to Stop It, and its precursor law review article the Generative Internet, between 2004 and 2007. I wanted to capture a sense of just how bizarre the Internet — and the PC environment — were. How much the values and assumptions of, metaphorically, dot-org and dot-edu, rather than just dot-com, were built into the protocols of the Internet and the architecture of the PC. The amateur, hobbyist, backwater origins of the Internet and the PC were crucial to their success against more traditional counterparts, but also set the stage for a new host of problems as they became more popular.
The designers and makers of the Internet and PC platforms did not expect to come up with the applications for each — they figured unknown others would do that. So, unlike CompuServe, AOL, or Prodigy, the Internet didn’t have a main menu. And once for-profit ISPs started rolling the Internet out to anyone willing to subscribe, there came to be a critical mass of eyeballs ready to experience varieties of content and services — the providers of which didn’t have to negotiate a business deal with some Internet Overseer the way they did for CompuServe et al. Some content and services could be paid for, at least as soon as credit cards could function cheaply online, and other could be free — either because of a separate business model like advertising, or because the provider didn’t feel inclined to monetize visiting eyeballs. Tim Berners-Lee could invent the World Wide Web and have it run as just another application, seeking neither a patent on its workings nor an architecture for it that placed him in a position of control. Today, of course, the Web is so ubiquitous that people often confuse it with the Internet itself.
When bad apples emerge on an unmediated platform — and they do as soon as there are enough people using it to make it worth it to subvert it — it can be difficult to deal with them. If someone spams you on Facebook, the first step is to make it a customer service issue — complain to Facebook, and they can discipline the account. If someone spams you on email, it’s much trickier, because there’s no Email Manager — just lots of email servers, some big, some little, and many of them with accounts hacked by others. That’s one reason why a newer generation of Internet users prefers Facebook or Twitter messaging to old fashioned email. Same for the PC itself: with no PC Manager, there’s no easy way to get help or exact justice when exposed to malware. I worried that malware in particular, and cybersecurity in general, would be a fulcrum point in pushing “regular” people away from the happenstance of generative platforms designed by nerds who figured they could worry about security later. Hence a migration to less generative platforms managed like services rather than products.
I understand and sympathize with that migration. But it’s important to recognize its downsides — particularly if one is among the libertarian set, which has been comprised some of the most vocal critics of the Future of the Internet. Whether software developer or user, volunteering control over one’s digital environment to a Manager means that the manager can change one’s experience at any time — or worse, be compelled to by outside pressures. I write about this prospect at length here. The famously ungovernable Internet suddenly becomes much more governable, an outcome most libertarian types would be concerned about. Many Internet freedom proponents aren’t willing to argue for or trust those freedoms to a “mere” political process; they prefer to see them de facto guaranteed by a computing environment largely immune to regulation. Read the rest of this post »
September 7, 2010 at 9:00 am
Posted in: Cyber Civil Rights, Cyberlaw, DRM, Privacy (Electronic Surveillance), Symposium (Future of Internet), Technology, Web 2.0, Wiki
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More on Verizon/Google
posted by Frank Pasquale
Having written a long post on the topic, I just wanted to recommend a few pithier takes on the issue:
Bill McGeveran, “the Google defection:”
Google’s defection from the supporters of an open internet changes the political dynamics for the worse, opens the door to creation of a second-class internet for non-corporate content, and tries to disable the FCC’s ability to do anything about it.
Marvin Ammori, “makes BP look good:”
Last week I wrote up a guide of the FCC negotiations on net neutrality, setting out all the loopholes, and noting that the carriers needed only one loophole to kill an open Internet. Verizon and Google announced their pact two days ago. Rather than including one loophole, they went down the checklist and included just about every loophole they could.
August 10, 2010 at 4:41 pm
Posted in: Cyberlaw, DRM, Economic Analysis of Law, Technology
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To Rent or Own? SpiralFrog Closes; Customers Lose Access to Music
posted by Deven Desai
CNET reports that SpiralFrog, a company that was, yes was, in the online music game is closing its doors. If one was a customer, music covered by SprialFrog’s DRM software will be unusable 60 days from the closing date which seems to have been on March 20, 2009. This problem looks a little like Zittrain’s concern about tethered devices and perfect enforcement. For me Spiral Frog’s shut down and resulting denial of access is part of the problem with cloud computing and what I call technological mediation in my paper Property, Persona, and Preservation. As more and more material is mediated or put at a distance, the more one must navigate second and third party software, hardware, and contracts just to access and use information and material that one ought to be able to reach directly.
SpiralFrog highlights the problems of the DMCA and DRM approaches to protecting information. The access to knowledge movement and commentary on the DMCA specifically examine these questions. I suggest that online storage poses additional issues. Material that was once on one’s computer is now stored elsewhere. So even if one had the key for the software, one cannot get to it. In SpiralFrog’s case, the material seems to be on one’s computer but inaccessible unless some new company buys SpiralFrog’s assets and unlocks the RM once more.
In addition, as this article points out, the company’s demise does not necessarily show that ad-supported music is a dead business model. Spiral Frog had management, funding, and deal problems. Now, it may also be that it was pursuing DRM solutions when others were moving away from that model for music. Nonetheless, as the FTC notes DRM “is expected to become increasingly prevalent in the U.S. marketplace in the coming years” and it must address “the need to improve disclosures to consumers about DRM limitations.”
Ah understatement, the lifeblood of press releases.
March 23, 2009 at 2:33 pm
Posted in: DRM, Intellectual Property
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Late Recap of the Southwestern Conference About Copyright Reform, Panel 1
posted by Deven Desai
A few weeks back, I wrote a post about my views on a big issue in copyright reform and my paper, Copyright’s Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright, which addresses what I think will yet again be a major theme in copyright reform: term extension justified as way to provide for heirs. My paper argues that the idea lacks both a historical and theoretical grounding.
As I noted in that post, copyright refrom is on many folks’ minds. Southwestern Law School put on a full day conference, Reforming Copyright: Process, Policy and Politics, on the topic.
Here is a recap of the first panel. I do not have Rebecca Tushnet’s skill at live blogging (waiting a few weeks to post this material is evidence of that). The following is what I heard people to say.
The first panel at the Southwestern conference on Copyright Reform framed their topic as: What’s Wrong? The Need to Reform the 1976 Copyright Act: “This panel will consider whether the 1976 Act needs to be reformed and, if so, what form the revision should take. In particular, it will focus on whether reform should take place via gradual increments, as it currently has, or whether it would be superior to scrap the current version of the Copyright Act altogether and begin from a blank slate.”
David Nimmer began the session. He surveyed the history of reform and offered some interesting points. For one thing, the Copyright Office used to studies authorized by Congress to understand how to update the copyright. Nimmer argued that film studios, authors, publishers, music publishers, record labels all influenced the draft bill but broadcasters, juke box owners, and cable television had other interests that stopped a full revision from being passed. Today Consumer electronics, tech companies telcos, amateur authors, bloggers, EFF, ACLU, other NGOs, broadcasters, ISPs, privacy, consumers pull away from the film, professional authors, record labels, music publishers, who move towards a new copyright act.
I understood Nimmer to say that some forces converged on a central point that could agree on reform but there is a “high ratio of centrifugal forces pulling away” from that center. He further suggested that small reforms, what I might call tinkering, allow for a small, defined group of players willing to compromise and in those cases, Congress tends to act and reform/amend the Act. But when diverse, divergent interests are in play, (Markets and social norms at odds), Congress is less likely to act.
He offered that Congress may still be the conduit to achieve informed and balanced copyright legislation, favored new national commissions to evaluate how to proceed, and wondered whether one central person (e.g., the IP Tsar under the Pro IP act) would be able to handle the task of reform.
March 23, 2009 at 2:29 pm
Posted in: DRM, Intellectual Property
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Doctorow’s Discontent with Content
posted by Deven Desai
Readers of this blog know that I am a fan of Cory Doctorow’s work. In addition to his fiction, Cory writes nonfiction. His main topics are technology, creativity, copyright, and the future of the future. I know this because I read his work and his latest book, ©ontent, gathers his thoughts on these topics and says so right on the cover. Ah it is so easy. Maybe too easy. Deceptively easy. And that is also Cory’s gift.
©ontent sings. From the opening where Cory tells Microsoft’s Research Group why DRM is foolish to his thoughts on protecting artists to his views on the information economy to his idea that giving away his work is the best thing he can do, Cory offers detailed yet accessible arguments about the way technology, creativity, copyright will affect the future of the future. The essays span several years of writing. Cory makes bold claims about DRM and the market. He presents a rallying call for the United States to keep pace with the changes in information economy lest the rest of the world surpass us. Reading the essays provides insight about his ideas and how they evolved. Remember Cory writes for Boing, Boing, writes science fiction, lectures, and more. His livelihood is at stake here.
Now I can’t say I agree with everything Cory says, but I think what he says merits consideration. Sure, he is in a rarefied world. Maybe he can give away work and still make money. Maybe he is just an evangelist and should be distrusted on those grounds. Then again, read the book. Cory identifies real changes in how our creative system operates and the way in which adherence to the old one could harm us. The last essays grapple with the problems of security and control. They present the possibilities that await us. And that is the point. Cory is speaking of possibility. As he says “We choose the future we want to live in.” ©ontent helps us understand what that future could be and how to have a say in it.
October 13, 2008 at 1:40 pm
Posted in: Book Reviews, Culture, Cyberlaw, DRM, Intellectual Property
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