Category: Digital Rights

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:

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.

• The citizen groups were coming from behind. The movie industry developed a pro-active long-term strategy to combat the threat posed by new technology, by trying to restrict and elimiate customers’ traditional “fair use” rights. Citizen groups heard of the threat late, and scrambled to organize opposition.
  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.
• There is a long tradition in which content and access rights are negotiated among commercial interest groups — book publishers and writers, music publishers and the radio industry, service providers and equipment manufacturers. Consumer and citizen groups didn’t have a secure place at the table.
  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.
• There was an unstable alliance between telecom companies (who didn’t want to be caught between content companies trying to prosecute customers), equipment manufacturers (who didn’t want to be liable for their customers’ misdeeds), and citizen groups (who wanted to preserve the traditional rights of customers to use content and technology they’ve purchased).

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.