Category: DRM

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Adam Thierer on Classical Liberalism on the Net

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.

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Will We Finally Have a la Carte T.V. Content?

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?

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Print is Dead; Long Live the Word (Britannica Stops the Presses)

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.

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Why Now? Or One Way to Understand the Importance of Configuring the Networked Self

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.

3

Ubiquitous Infringement

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.

55

Stealing the Throne

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.

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Cary Sherman and the Lost Generation

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.

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The Hardest Thing to Predict Is the Future

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.

1

Analog Return: Vinyl, Zines and Motivation for Creation

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.

Health Privacy Paradigm Shift: From Consent to Reciprocal Transparency

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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