Don't look now, but the Senate re-introduced the PERFORM act, a bill that makes it illegal to record music from the internet and bans the use of mp3 by online music services (!). The consponsors are Senators Feinstein and Biden.
Feinstein complains that "New radio services are allowing users to do more than simply listen to music. What was once a passive listening experience has turned into a forum where users can record, manipulate, collect and create personalized music libraries," said Sen. Feinstein.
Please tell Senator Feinstein that this is a good thing, not a crime. The EFF has information and a handy action alert. Please sign it, pass it on, and blog it.
I read TechDirt religiously. I love how they have no patience for spin and bs, and argue with reason, snark, and relentlessness against shortsighted business practices. On Net Neutrality, though, I think they're being naive.
They're right in theory. Of course the main issue isn't net neutrality, it's excessive market concentration and lack of competition. In recent years, the US government has gone back on the policy to break up Ma Bell, has removed obligations to wholesale their networks, and approved merger after merger. The unsurprising result -- the neomonopolist AT&T is bragging that it's about to exert its power by using its monopoly on the wire to control the market for content and services.
Sure, the right policy is to break up the monopoly again, one way or another. Legally split network from services. Encourage government-supported fiber, wholesaled to allow free-market competition for connectivity and content. But those things aren't going to happen with today's Republicans (no Teddy Roosevelts these days), and it would take a pretty serious populist revolution to pry the Democrats back from incumbent industry tool.
Sure, Net Neutrality is second best, but if that's what we can get while building back policies that favor competition and oppose monopoly, we should take it. Hopefully the TechDirt guys aren't dissuating techies from calling and writing their Senators to support Net Neutrality, If we don't get this partial victory now, there will be a smaller and less powerful community to fight for the real win later.
I went to a "one web day" organizing event yesterday. I have a bit of ambivalence about the theme, and want to explore the emotion.
The internet is a wondrous creation of humanity. The ability to connect across space and remember across time is stunning to contemplate. It is well worth celebrating.
The model of a "day" dedicated to celebrating, raising awareness, and protecting -- along the lines of "earth day"-- feels like original and unreconstructed hippie-dom. The level of sincerity and optimism is a bit embarrassing, given the waves of cultural disillusion that followed the euphoria. (mind you, the original earth day, be-ins and what not are all before my time).
Unlike the original Earth Day, One Web Day is assertively anti-anti-commercial. The goal is to embrace the commercial providers, big and small, who help bring the internet to people.
The most well-greased way to make a holiday mainstream in US consumer culture is to drive it with consumerism. Mother's day was invented to sell flowers and cards. Christmas is used to sell most of everything. It is easy to imagine web day promotions on internet access, Flickr memberships, and other addictive subscriptions.
And yet the most powerful marketers -- the telco and content oligopolies -- are dedicating vast resources and efforts to make the internet a less connected place, with less of the open access, easy of information distribution, and ease of sharing that make the internet what it is.
When I think about One Web Day, it is hard to think about celebrating the internet without thinking about the amount that is at risk. Much of the remix culture rennaissaince is illegal, or under legal threat, because of bad law. While US telcos try to get laws passed to make municipal broadband illegal, European cities, one after the other, are starting fiber-to-the-home initiatives that will get residents first-class broadband while US connectivity falls behind.
And yet, people won't engaged in protecting something they don't think to value. Part of the value of One Web Day is sharing the idea and the feeling that the internet is worthy of appreciation. Wanting to protect it comes as a follow-on.
I guess the way to make it work is to get the themes of protection and sharing into enough hands, and take advantage of the commercial momentum to spread the word.
The Korean government "asked their three mobile carriers "to open up their mobile Internet network to outside firms to help create a wireless network as efficient and popular as the World Wide Web."
Vongo is one of a burgeoning number of online video services. When you download their client gizmo, the terms of service (if I'm reading them right) say that you do not have the right to criticize the product.
"You may not use the Starz Marks to imply endorsement of your product or service, or to disparage Starz, Starz’ affiliates, Vongo or their respective products or services".
This is absurd. Why would a vendor expect customers to give up their right to criticize their product. And why would a vendor want customers to refrain from criticizing the product. If you have unhappy customers, it's better if you know about it.
By contrast, the Google and Yahoo video services let you just start playing video on the web, and their terms of service don't try to ban customers from criticizing the product.
The foolish terms of service and inconvenient signup process put Vongo at a competitive disadvantage.
UPDATE: TechDirt reports that Google's video service will have new, proprietary DRM. "You can't transfer the video to mobile devices. It doesn't work on a Mac. And, you can only view the video when you're online, as the copy protection obviously is calling home first." So, another business model based on not giving customers what they want. The aspect that is as troubling is Google's revenue sharing model with content providers. When Google starts bringing in lots of revenue dependent on cooperation with the content industry, it will join the anti-fair-use lobby.
On the Google blog, Senior Policy Council Andrew McLaughlin announces that Google has hired a lobbyist, Alan Davidson of CDT and is setting to work lobbying on behalf of net neutrality and fair use.
It will be great to have Google's help to break the grip of mass media and monopoly communications over laws that protect their obsolete business models. Today, the US economy is hobbled by the power of incumbent industries to buy the law and protect themselves against disruptive competition. The only way this can change is for businesses that make money from the long tail to invest in buying the law back.
Citizen engagement is helpful -- one of the benefits of fair use, community broadband, net neutrality, and other digital rights positions is that we have end users aka voters on our side. But if consumers stand alone against industry, things go hard in DC these days. When a powerful industry is supported by citizens, that's a winning combination. When a politician hears from an industry lobby supported by citizens in his district, that helps him make the right decision.
Over the last decade, the telecom and content industries have done a better job than the tech industry at protecting their interest in DC. Telecom, cable, and broadcast have been heavily regulated for many decades. This has made these industries very good at lobbying -- better at lobbying than innovating. So they use their lobby skills to defeat the innovators.
There's a lot of money to be made in the long tail, and companies like Google and Intel are helping to protect that interest. Hopefully Google realizes that this won't be trivially easy and will take a while. The blog post is very cool -- it represents a major shift from the secretive world of DC lobbying. Participating in a public conversation can only help getting the word out about the value of the freedom to connect and create.
Google and Intel aren't always necessarily on the side of public interest -- Google's business model has some privacy risks, and Intel has serious investments in DRM. But their investments in protecting connectivity and peer content help protect digital freedom and the public sphere.
I'm moving files to a new computer. I transfered the files over the network from the old computer. iTunes isn't recognizing the music files. These are supposed to be the instructions. Maybe I need to copy it to a CD, instead of moving on the network?
DRM just makes things difficult for customers.
A few days ago, I disagreed with the argument that Yahoo was more closed that Google because Yahoo hosts commercial content. In a "long tail" world, popular content helps attract users and doesn't displace peer content.
DRM and license terms are more relevant dimensions of open-ness. So long as the Yahoo Music Help section has a page called Why Can't I Burn a Song, Even If It's in My Music?, the jury says "closed".
At the same time, Yahoo's MediaRSS has the opportunity to be a disruptive technology, coming from the bottom up to change the market share of DRM.
In the words of Wired News, "Niche content creators syndicate their content with an MRSS feed, which includes metadata about the work. The information goes out to subscribers just like a blogger's RSS feed and incorporates video and audio... Yahoo! made sure MRSS was open and nonproprietary. Thanks to that hands-off policy, MRSS has caught on: Both Google and AOL encourage content creators to use MRSS to help their search engines identify and index video.
Motivated amateur and mid-list music and video producers can syndicate with RSS. Good search engines will get the word out. When this approach starts collecting money (the way blog ads do), less restrictive distribution terms will start gaining market share.
So, Grokster and Streamcast make money from advertising. It seems like a much better solution than suing them out of business would be a statutory license that took some of the revenue and provided it to artists.
This approach was used with player pianos, and with music played in bars and restaurants, where some of the revenue needs to be shared by law with copyright holders.
Statutory licenses have been proposed before, but one problem was that there wasn't anything particularly relevant to license. One proposal was to impose a tax on all broadband connections, whether or not the user downloads any copyrighted content.
The beauty of an advertising business model on peer to peer is that it is a logical target for a tax. The ad server could even measure the content that was being downloaded, and use the data to allocate the money proportionately.
Back in the day, when Congress extended statutory licenses to music played in restaurants and bars, were they wiser and more foresighted? Or was there a closer balance between the power of the music industry and the power of the bar and restaurant association?
There's one main theme in the Brand X and Grokster Supreme Court Cases yesterday. Incumbent industries own much of US technology policy, and use that power to keep out competition and suppress change.
BrandX, the ruling that exempts cable companies from sharing their lines, is a defense of the FCC policy to offer incumbent carriers relief from competition, in exchange for unsecured promises to build out broadband. The policy is obviously failing -- the US is falling behind the rest of the world in broadband access. See Cathy Yang's Business Week commentary, "Good for Cable, Bad for America" for the case made clearly.
Grokster applies an "inducement standard" to technology products and services that can be used for copyright violations. In practice, according to EFF's Fred Von Lohmann, this will encourage content industry lawyers to rummage through the memos and emails of technology innovators, looking for any sign that the company intends the product to be used for copyright violation.
The content companies didn't get exactly what they wanted -- the technology itself hasn't been criminalized. But they got enough to make it riskier to develop new technology, and to push more technology innovation outside the US.
The US will either find a way around the incumbents' ownership of the law or become a second rate economy. Empires fall.
Reading JD Lasica's Darknet, about the clash between digital remix culture and Hollywood's attempt to lock down content.
In one chapter, Lasica tries to clear rights to snippets of old movies for use in a personal, non-commercial video -- the Mummy, Ice Age, Mary Poppins, Treasures of the Sierra Madre -- and collects the rejection letters from the major studios.
What a missed opportunity. The studios should permit this as a matter of course. And they should require the inclusion of a little "credits" widget that has a link to rent or buy the whole movie. Little snippets of video have the ability to evoke the memories of the rainy Sunday when the movie was seen first, and the impulse to watch the whole thing.
What better way to stimulate sales of back-catalog content? No cost, and found money. The rejection letters are opposite of direct mail -- targeted anti-marketing, designed to repel buying opportunities from primed and eager buyers.
How long will it take "long tail business opportunities" to really hack business models and buy back the law?
According to this law.com article, Innovation and its Discontents has helped to spur the current drive for patent reform.
Legislators were also spurred into action by a book -- "Innovation and Its Discontents: How Our Broken Patent System is Endangering Innovation and Progress, and What to Do About It" -- published last year by business professors Adam Jaffe and Josh Lerner.
Stephen Fox, Hewlett-Packard's deputy general counsel of IP, noted at a conference in San Francisco on Wednesday that members of Congress have been reading it and even marking particular pages."They're using it to get a perspective into the patent system," Fox said. It's given them "an aha moment -- that's what it's all about."
I caught Chris Anderson giving a talk on The Long Tail last week. The most interesting part of the talk (for folks who've read the Wired Article was the as-yet-unpublished research data showing using various data sets that prove that Long Tail businesses really do shift revenue mix from almost all hits, to a 50/50 mix of hits and niche products.
Several follow-on reflections. As revenue in the entertainment industry gravitates to the Long Tail, how long will it take for Amazon, Netflix, and others to start buying back the law from mass media capture?
A mass media, hit-based business sees its value as selling the same product to as many people as possible. Anything that modifies the product, or seems to displace a sale to an individual is seen as harmful. A "long tail" business sees its value as fostering many revenue-generating niches. Therefore, anything that fosters the creation of new niches and subcommunities is seen as beneficial.
There are at least three legal preferences that are purchased by hit-based companies, and would be modified by "long-tail" companies:
* Long copyright. A "long-tail" business would also be interested in clearing rights on old, back-catalog works for renewed distribution
* Criminalized sharing. A "hit-based" business sees sharing as stealing. A "long-tail" business sees sharing as the building of niches. See Yahoo Music and Grouper for examples in this direction.
* Criminalized remix. A "hit-based" business sees fan-community modifications as stealing. A "long tail" business sees fan community mods as the building of niches, and finds ways to make more money from enthousiastic and creative fans.
When a region wants to make a decision about whether to provide broadband as a publicly supported service, what better way than to put the matter to a vote?
Here's what happened last year in an Illinois referendum about deploying a regional fiber network, according to BroadbandReports.com
SBC spent $192,324 on defeating the ballot measure, while Comcast spent $89,740. Fiber for our Future, the community group pushing the initiative, spent $4,325. Not months after the first vote failed, the Illinois area in question saw Comcast rate hikes as high as 33% in some neighborhoods.
Something is seriously wrong with democracy when this can happen. It is old-fashioned to call for free campaign airtime, but I can't think of a better way to actually rescue democracy from corporate purchase.
The spine-tingling new cop show -- intrepid officers stake out movie theaters, watching for unauthorized taping of movie premieres.
Texas HB 1871 and SB 481 create new crimes for recording movies in a theater. Meanwhile, there are similar bills making their way through Congress right now (S167 / HR 357) and expected to pass easily.
Why is the MPAA trying to get this bill passed at the Federal and State levels? Rumor has it because they were concerned that Federal law enforcement wouldn't make movie theater stakeouts as high a priority as say, finding terrorists.
Now, I don't have any sympathy for commercial pirates -- people who make money by distributing illegal copies of movies.
But what problem is the MPAA trying to solve here? People are so eager to see their movies that they are willing to record them at theaters.
With a little creativity, the MPAA could solve this problem in other ways. They could make premiers available to bloggers, and provide links to trailer clips. They could take advantage of the power of universe of fans to spread word of mouth about a movie.
The movie industry could do more of what Apple has done, in making an easy, cost-effective way to search, pay for, and download movies. They could digitize back catalogs of content, creating new revenue opportunities for assets that are moldering on shelves.
I really wish that the MPAA put as much money into creative new ways to distribute and promote their product as they do trying to change the legal system to support their existing business model.
I get a visceral reaction to throw the rulebook in the trash, when I have the opportunity to sit through a telecom hearing or read through an analysis of a telecom bill.
When I see nicely-dressed lobbyists arguing in favor of this legal nuance or that, I see "regulatory capture" in action. The regulatory regime has the consequence of giving the industry tremendous power over the regulations that govern it. I imagine a large octopus with its arms wrapped around the legislature.
At the same time, the comments like this by the new FCC Chairman in favor of "deregulation" make me really queasy too. In a market where the largest companies have tremendous power, "deregulation" can mean "I want the government to stop interfering with my monopoly."
Upon reflection, I think that "deregulation" is the wrong question.
The government has a strong interest in enabling a competitive market and protecting consumers from fraud.
The government does not have an interest in favoring any network technology over another, or censoring cultural content.
The question isn't whether government should play a dominant role or no role. The right question is what role should government play.
I needed to make a photocopy of my driver's license and credit card for an internet order where the shipping address was different from the billing address. My home office copy machine is sheetfed, so I need to go out to copy the little pieces of plastic.
So I called the South Congress HEB. Their photocopy machine is behind a service desk. They won't let me copy my own driver's license and credit card, because they are "copyrighted".
A slightly longer trip to Office Depot did the trick.
Wharton professor Dan Hunter has written a provocative paper in which Lessig-style free culture activism, open source software, and open spectrum are examined for their relation to Marxism.
The paper concludes that Lessigist IP reform is more like social democracy, which tempers the exploitative excesses of monopoly capitalism with safety nets; whereas the open spectrum and open source movements are more like Marxism, in that they attempt to remove property from the exploitive hands of owners.
I think the paper gets its Marxism wrong. For example, "a commons of any sort is inherently Marxian, even if other types of private property rights still operate within the commons." Nope. Marxism argues that all property is theft, and all property is to be held in common. And "Marxism isn’t about society against the individual, but seeks to put the individual first, allowing him or her access to the aspects of life that make them complete." Don't think so. Marxism is collectivist, requiring individuals to give up personal ownership and personal benefit for the advantage of the group.
Most importantly, I think the paper gets its metaphor wrong. Lessig's Free Culture and Open Spectrum activists don't advocate abolishing the ability to earn financial reward from intellectual resources. This isn't because they are wimpier Marxists; social democrats who don't go all they way. It is because they see the public domain as a necessary resource for economic and cultural life to continue.
The environmental movement is based on the idea that life on earth depends on a healthy commons -- clean air, clean water, thriving forests that emit oxygen, thriving wetlands that absorb storm flow, thriving oceans that support the food chain, healthy soil.
Environmentalists don't try abolish fishing or farming or manufacturing. They try to halt the pollution and destruction of the commons, because without a healthy environment, life on earth isn't sustainable. If you pollute badly enough, and wreck the foodchain, everybody gets sick, starves and dies.
Open Spectrum advocates don't argue that all technology should be free. They see radio waves as a particular resource that, for technical reasons, is most abundant and generates most value if it isn't allocated into privately held chunks. It's an argument about managing a single resource, spectrum, in order to foster economic activity in the areas that depend on it.
Lessigist free culture activists don't argue that it ought to be illegal to make money from information. They contend that there needs to be a healthy public domain in order for the creation of culture to continue.
It is a difference in kind, not in degree, to believe that some resources need to be protected in public trust, in order to continue economic and cultural activity that depends on those resources.
The argument about open source marxism is differently wrong. I'll reread Benkler and noodle on that for a bit longer.
There's a lively, thoughtful, substantive discussion going on over on the Lessig Blog, where Congressman Rick Boucher is engaged in conversation with the "free culture" crowd, while Lessig is on vacation. The congressman is reading comments throughout the day, and writing thoughtful, informed, reasonable responses, with insights about the political process. Participants are asking good questions and bringing up relevant angles to the discussion of copyright policy and the INDUCE act.
This is the real deal. Congressperson takes a leadership role on an issue, and uses a blog as a way to meet with constituents who are active advocates in the issue area. The blog community of activists is catalyzed by a thought leader.
No "messages", no flames. Cluetrain live.
During the INDUCE Act hearing, Bainwol of the RIAA countered claims that file-sharing doesn't decrease music sales.
But, he said holding up a colorful line graph, our sales from hits have declined. Which means sales of mid-list non-hits must be going up.
In other industries, when companies see sales of one type of product declining and sales of another type of product increasing, they switch strategies to focus on the new product category. The recording industry is missing business opportunities that are staring it in the face.
The recording industry instead wants to use the US legal system to maintain their old product mix.
Ed Felten rightly points out that today's Democratic politicians aren't better than the Republicans on issues of innovation and cultural freedom. I wonder what will happen when and if this generation of activists, who've learned the political process advocating for digital rights, starts running for office?
Ed Felten has a seemingly sensible suggestion for a consumer guide to End User License Areements, those pages of legalese that you click through to download software.
People comment with typical apologetics for the status quo. EULAs aren't enforceable in court; buyers who know enough don't believe them; sellers don't believe them; and well-meaning lawyers insist that they are needed anyway, since everyone else uses them.
EULAs are a funhouse conversation between buyers and sellers, where nobody believes what they are saying, but everyone is compelled to recite these ritual untruths.
The California Secretary of State recently mandated that evoting machines used in California will need to print a paper receipt that allow voters to verify their votes and auditors to verify election results.
This is a tremendous step forward for safer evoting and a major victory for activists in California.
The need for paper voting receipts is pure common sense. A adversary who is able to modify the results of an election could also modify the electronic logs. Without a paper trail, there's no way to track or fix things if the system is compromised.
The need for open code and open processes in the voting system is also a matter of common sense.
Try out this sentence: "in a democracy, the voting process should be a secret." Doesn't make any sense, does it? Try again: "In a democracy, the voting process conducted with computers should be secret." Adding computers to the mix doesn't change the need for an open voting process.
Hopefully the progress in California will provide impetus to activists in other states, and to the Holt Bill in Congress, which mandates these safeguards nationwide.
The LA times interviews session musicians, managers at indy labels and indy record stores, and finds that folks in the rank and file of the music industry aren't all buying the RIAA line that file-sharing is all bad.
One rap label exec says, "At first, I got mad. Now, I roll with it and use the tapes as a promotional avenue. I go down to the studio once or twice a month, and knock out three to four songs that will just be for these mix tapes. One of these mix tapes might get the word of mouth going, and that's good for me."
For a $2000 fine, the RIAA will drop charges against the family of a 12-year old girl living in a housing project in New York City.
When a big kid shakes down a little kid for lunch money, it's called bullying. When grownups run shakedown scams for money, it's called extortion.
Prof. Lessig reports the breathtakingly clue-deprived opinions of the USPTO on open source software.
The patent office was trying to pull the plug on a WIPO meeting that had open source on the agenda. Lois Boland, director of international relations for the U.S. Patent and Trademark Office, is quoted as saying saying: “open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights... To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO.”
Good discussion in the comments to Lessig's blog.
I wonder what the points of leverage are for USPTO accountability. When nearly 2 million people protested the FCC's policy on media consolidation, the FCC blithely ignored the protest -- but Congress advanced bills to overturn the FCC policy. Who's listening on IP policy?
It's plain that the dinosaurs of the recording industry have completely lost touch with reality," said Fred von Lohmann, EFF senior staff attorney. "At a time when more Americans are using file-sharing software than voted for President Bush, more lawsuits are simply not the answer. It's time to get artists paid and make file-sharing legal. EFF calls on Congress to hold hearings immediately on alternatives to the RIAA's litigation campaign against the American public.
via BoingBoing
Caught up in the latest battle in the content wars, I went searching for context.
I read two books last weekend that explain the history from different angles.
* Copyrights and Copywrongs, by Siva Vaidhyanation, is an erudite intellectual history of the concept of copyright, and an eloquent critique of the damage done to culture by draconian content policies.
* Digital Copyright: Protecting Intellectual Property on the Internet, by Jessica Litman is a more prosaic account of the last decade's legal battles, by a practicing copyright lawyer who was an eyewitness and participant. What Litman's book lacks in elequence, it makes up in tactical observation and insight.
The history provides helpful perspective on this year's battles.
* the relationship between the federal Digital Millennium Copyright Act and the state-level bills, nicknamed SDMCA, even though the state bills say nothing about content and copyright.
* the eerie historical parallels, and critical differences, between the events in DC in the 90s, and the state-level events this past year.
* the long-term history and long-term consequences of this year's events
Why are the state bills nicknamed "SDMCA"
The history explains the relationship between the DMCA, a 1996 addition to Federal copyright law that bans circumvention of copy protection -- and the so-called S-DMCA -- the state level bills that give movie companies and ISPs vast power over their customers' use of a network connection.
The right to copy movies, music, and books is governed at the federal level, because copyright is defined in the constitution. But access to content services is regulated at the state level.
In their effort to legislate perfect control over customers' access to content, the MPAA needs to change legislation at the state level. Hence the SDMCA.
History Repeats Itself
There were eerie similarities between the national fight last decade and this year's efforts.
In the 90s, the opposition came from national activist groups like EFF, academics, and library groups.
This time around, SlashDot and weblogs by copyfighters like Ed Feltenalerted people of the SDMCA bills coming to their states. Grass roots groups rose up in various states, and a network of grass roots groups came together.
In 1996, there was a summit among key industry players. The citizen groups were disinvited at the last minute.
In 2003 in Texas, there was a summit called between the MPAA lobbyists, the industry group lobbyists, and the citizen group lobbyists. The citizen groups were disinvited at the last minute.
Here's where the stories diverged. Just like in the 90s, the telecom companies were "carved out" by an exemption from liability. When the American Electronics Association agreed to a carve-out exempting manufacturers and resellers from liability, it looked like the parallel was complete. Citizen groups would be the sole opposition, and go down to defeat.
This time, though, resellers and manufacturers saw beyond the liability carveout. They recognized that their market opportunity and ability to innovate were threatened by laws that let movie and cable companies micromanage customers' use of technology -- even if the manufactures and resellers were exempt from direct liability for their customers' misdeeds.
The technology companies kept fighting the bill, and helped raise active opposition among tech-savvy legislators.
Long-term perspective
Copyright policy has been slowly swinging from a balance between publishers and public rights, toward publisher control, for a century.
The MPAA has been working on this issue for ten years, and has a long-term strategy to erode and abolish fair use and fair access.
It's critically important for citizen groups to have a seat at the table. The Sierra Club and the National Rifle Association make their voices heard. Technologists and technology users should too. My guess is that we're swing voters; prove that theory, aggregate our dollars and votes, and watch the power balance change.
Chip and Adam are concerned that defining a set of fair use rights would actually serve to limit fair use. I agree that it would be a problem if fair use rights were defined with narrow specifics as in the DMCA, and think a "fair use bill of rights" should define fair use broadly, just as the Bill of Rights has broad definitions for freedoms of speech and assembly.
Based on experience working to oppose the SDMCA in Texas, I have a different concern from Chip and Adam.
Over the last decade, the content industries have succeeded in stereotyping most personal and creative uses of content as potential theft. We have a big image problem, in the minds of the public and in the minds of legislators, who now think of end-users as thieves.
I don't think it's enough to describe user rights in a technical fashion, whether as Adam suggests, as all uses other than redistributing a work, in whole or large part for profit, or whether, Jessica Litman suggests, as a balance shifting back from "thick" copyright protection to "thin" copyright protection.
We need to create a positive, affirmative image of all of the legal, personal, intellectual, creative, and innovative ways that people use content. We need to create an environment where infringing fair use is viewed with the same horror in American culture as infringing free speech.
Only by having a strong, positive image, and broad standard for fair use, can we counter the stereotype that personal and social cultural creativity constitutes stealing.
Doc Searls has an excellent piece on the rise of new advertising models.
So what's happening here? Simply put, companies like Google and Overture are blowing away everything the old advertising business holds dear. Beautiful images. Attention-grabbing graphics. Awards. Strategy. Even old conventions like branding--a term Procter & Gamble borrowed from the cattle industry, back when they created mass media advertising in the dawn of commercial radio more than 70 years ago. They're blowing it away by connecting users and advertisers and helping both offer something valuable to each other.
Meanwhile, Dan Bricklin writes about the many ways that artists get paid, including performance, patronage, and commission.
Like Tim O'Reilly, Bricklin writes that mosts artists aren't famous and would benefit from free exposure. There are many artists who can be economically profitable, if they reach their "natural audience."
The music and movie industry is shooting itself in the foot by trying its best to preserve today's mass-media discovery and distribution methods.
A problem with much of today's pre-recorded media art (such as sound recordings and movies) is the method of discovery. Introduction to new artists and their work is done through advertising, paid placement (narrow radio and TV play lists), and other mass marketing techniques. These are very expensive, and the difficulty of rising above the noise becomes yet more and more expensive. There is a self-fulfilling prophesy where only huge sellers bringing in large revenues are pursued. Small fan bases, even if solid and large enough to fully fund the artist themselves with a very acceptable life compared to other professions, do not fit in this model. A few big hits are viewed as more important than a myriad of small ones, each with a happy artist and happy fans. There seems to be a drive to create a few "superstars" instead of many full-time artists. This is bad economics if in catering to the big players we develop technologies and norms that hamper the "business models" of the smaller players.Technology is making the cost of practicing many types of art less expensive. For example, recording and editing equipment of high quality that used to cost hundreds of thousands or millions of dollars is becoming something even a hobbyist can afford and use. Manufacturing and distribution of many media forms is becoming almost cost free. Communications to a widely dispersed fan base has dropped to a minor cost as mailing and the need for advertising is replaced with email and web sites. (Discussing this with someone, he basically asked: "Is the Britney Spears model the mainframe of the music business?")
The dot coms are gone. Change continues, as long as we don't let the legal system enforce the old ways. The Ottoman Empire strictly limited printing presses for two hundred years.
via David Weinberger and Doc Searls.
On Friday, there was a "Happening" (conference call+live chat) among grassroots groups opposing the SDMCA in different states: Georgia, Florida, Massachusetts, Michigan, South Carolina, Tenessee, and Texas).
We focused primarily on states where there are urgent deadlines on the legislative calendar. We'll meet again this Friday, to recap the week's event, provide support and ideas for other state groups.
A number of people on the call were eager to link together a national network of grass roots groups, to continue co-ordinated efforts on digital rights issues that play out at a local level. I think this is a fantastic idea. The more organized we are on the ground, the more our voices can affect local and national technology policy.
If you'd like to know more, about opposing the SDMCA, and/or discussions about bringing a network together, contact me directly, at alevin AT alevin DOT com.
Last week, there was a surprise hearing on Tuesday night on HB 2121, the house version of the Super-DMCA.
We got the word at 5pm, confirmed at 6pm, and were in the hearing room at 6:30pm when the hearing started.
The MPAA lobbyists were in town. The committee waived the notice rule and put the bill on the schedule.
The bill finally came up at 1am after a set of utility regulation bills.
The bill was presented as a simple case of preventing piracy and theft of service. It sounded like the sponsor expected a quick hearing with an evident result.
The first people to testify were Vans Stevenson and Todd Flournoy from the MPAA in DC, presenting the bill as a minor revision of existing cable-TV piracy law. Stevenson presented the bill as an uncontroversial measure that had already passed in a number of states.
We spoke against, as did a representative for Verizon, opposing the bill on behalf of a coalition of telecom and ecommerce companies types. They were concerned with the bill's breadth, since it might place them in the role of policing their customers' communications.
During our testimony, we helped to raised doubts in committee members mind about the bill's lack of clarity and excessive civil penalties. The representatives agree with the bill's goal, preventing theft of internet services, but had not given thought to the negative side effects of the bill's breadth and side effects.
We noted that as awareness of the bill's problems had spread, there is now strong opposition in other states. Also gave examples of ways that the bill was having chilling effects on research (a Michigan researcher who's put his thesis offshore) and on business in other states where it has passed (Labrea in Illinois).
Representatives Consumers Union and Public Citizen put in cards against the bill but didn't testify.
The chair ended saying that the bill clearly needed a lot of work, and encouraging the groups in attendance to work on modifying the bill.
Since then, we've been talking with other committee members, explaining why this is not a good bill as it's written, although the intent -- preventing theft of internet services -- is reasonable. And we're working with other groups in Texas who are opposed to the bill.
If you want more information about opposition to this bill, please contact me directly, alevin AT alevin DOT com.
Ross Mayfield reports that the SBC's is claiming a patent on website navigation, via BoingBoing
SBC is claiming that it holds a valid patent on website navigation and has begun to shake down websites for license fees. Near as I can tell, they think their patent applies to virtually every website extant.
SBC is claiming to patent the concept of a menu with tabs that correspond to specific locations within a website.
This is the online equivalent of somebody attempting to patent footnotes and tables of contents.
The Printing Press as an Agent of Change, by Elizabeth Eisenstein, is a long but fascinating study of the impact of printing on European culture, including the renaissance, reformation, and scientific revolution.
Standard navigation in books -- tables of contents, indexes, tables of figures, footnotes -- were made possible by the printing press. Each printed book in an edition had the same page numbers, makeing it possible to refer to the same content in different books by the page number. This wasn't possible with handwritten books; each manuscript had different pagination.
The standardization of print navigation made it easier for scholars to collaborate across distance, since they could easily refer to the same content in the same book. Better scholarly collaboration helped fuel the renaissance and scientific revolution.
Think about the different destiny of European civilization if a single publisher had been able to patent footnotes.
also thanks to Chip Rosenthal for a heads-up on this.
Lexmark is suing Smartek, a company that makes replacement toner cartridges, under the DMCA.
News.com reports: "Lexmark alleges that the Smartek chip mimics the authentication sequence used by Lexmark chips and unlawfully tricks the printer into accepting an aftermarket cartridge."
Now, I am not and have never been a lawyer. But isn't this the kind of reverse engineering that used to be a protected exemption to copyright law?
Will the case actually test whether the DMCA bans reverse engineering?
Thinking about David Weinberger's call for DMCA civil disobedience.
An amazing hack for Apple's iTunes and iMovie would be to enable blog entries to refer to music and movie clips.
Wouldn't it be great to point to a movie scene or link to a tune that you're talking about.
That would be 100% classic fair use, as intended by the Founding Fathers. It would be entertaining to try that one on in court!
I don't have a Mac, so I don't know whether and how it is doable but it would be fun.
This could use some good LazyWeb juice.
There's an intriguing article by Kevin Bedell over at the O'Reilly site suggesting that we trademark our personal information. If we get legal protection for our personal data, then we can charge others for using it and restrict others from using it.
This sounds like an absolutely wonderful idea to me -- I always wondered why other have legal rights to our personal data and we don't.
I'd love to see this idea batted around the blogosphere, vetted by the friendly lawyers, implemented in the lazyweb.
Prof. Lessig explains in his weblog about the legal issues that the Supreme Court will consider in deliberating on the Eldred vs. Ashcroft case (about whether Congress has the legal ability to extend copyright protection ad infinitum). Lessig's explanation is far more helpful than most of the journalists and citizenbloggers who covered the arguments like a sporting event.
I hope that the decision in the spring comes out in favor of Eldred and the public domain. Either way (as I wrote on the comments page of Prof. Lessig's blog), this is just one battle in a long war, with battlefields in the courts and congress and the press and the public.
If the Justices understand the problem, and Lessig felt they did, that's one step forward. If technologists understand the problem, that's a step forward. If a few politicians start to understand the problem, that's another step forward. If the mainstream press starts to understand the problem, another step forward.
Pardon the rhetoric, but this is one of the major issues of our time. The rise of the internet has the potential to return to ordinary people the power to contribute to culture; a power that has been greatly diminished in modern times by the dominance of mass media. The entertainment industry would like to preserve its oligopoly on cultural expression, and is trying to use technology and the legal system to stifle our rights to culture.
This is a subject worth understanding and a fight worth fighting (assuming we don't start World War 3, rendering the legal and cultural struggles of our society an academic subject for future archeologists.)
A couple of congresspeople have proposed laws to restore customers rights to make copies of digital media for personal use, to share with a family member or friend. The bills repeal restrictions on the rights of "fair use" imposed by the DMCA's draconian enforcement of copy protection policies.
There's a sensible discussion of the bills on SlashDot. The level of SlashDot discussion about these issues has improved greatly in the last few years, from knee-jerk antigovernment libertarianism and simple ignorance of government to a greater understanding of how laws are made and how to influence the legislative process.
The bills are being proposed at the end of the Congressional session, so they are unlikely to get passed this year -- but that's ok -- I hope they spark more press coverage and good discussion. I hope the SlashDot conversation can coalesce into an advocacy group of tech-savvy people who influence the creation of more sensible laws. I hope these ideas become mainstream common sense, so politicians can be populist about making sure ordinary people can lend a recording to a friend, the same way we can lend a book to a friend.