IP and Technology Regulation

Paper Draft: Napster Good? Welfare Economics Analysis of Music Infringement

2008-02-10T19:25:00.000-05:00

I previously suggested that music copyright might be inefficient, because it prevents uses with a positive social welfare value and no social welfare cost. I've now expanded that idea into a paper, using public quotes about the level of filesharing to try to estimate its positive and negative effects:

In this drawing, the smaller checked rectangle represents the potential social welfare cost of filesharing, and the dotted triangle represents the social welfare gains from filesharing. As you can see, it's very possible that the gains outweigh the losses. (In fact, the balance is even more one-sided, because the gain recaptures what would otherwise be a pure deadweight loss, while the "loss" is actually a wealth transfer.)

To see how I got there, check out the paper here. (The footnotes are sparse and badly formatted at this point -- if anyone has pointers for stuff that should be in there, or other suggestions, I'd appreciate it.)

RIAA Incredibly Infuriating

2008-02-07T15:50:00.000-05:00

We've talked before about the unreal damages for infringement of song files, which at a rough estimate might come to some 1.8 Quadrillion dollars per year.

Now I would think that damages amounting to 27 times the world GDP would be enough, but for the Recording Industry Association of America, that's just the beginning. Their platform for the future of music includes:

Dramatically Increasing Copyright Damages: the PRO-IP Act the RIAA is pushing would treat each track on a duplicated CD as a separate infringement, increasing the damages for sharing a 10-track CD with your friends from $150,000 to $1.5 million.

Grabbing A Bigger Cut: the RIAA is arguing before the Copyright Royalty Board that the fee paid to songwriters and publishers for each file sold in online stores should be reduced from 9 cents to 6 cents. (The artists themselves make about 5 cents on the dollar, of course).

Taking Over Your PC: Wendy previously noted that the RIAA is asking ISPs to filter traffic -- an expensive and invasive technology that can be trivially defeated by the same technology that protects your credit card number in online purchases. Their solution would require every computer user to run special software in order to access the internet, constantly monitoring your traffic in case you do anything wrong.

Normally we talk about law and policy here, but I have to admit I didn't assemble those stories to make a coherent point. The fact that this Association has more voice in Congress on IP issues than, well, every music consumer combined? That physically hurts. That's all I wanted to say.

ISPs on Filtering

2008-02-06T17:54:00.000-05:00

According to the New York Times Bits blog, Verizon Rejects Hollywood’s Call to Aid Piracy Fight. While AT&T was looking to work with copyright complainants to filter network traffic, Verizon expressed concern that voluntary filtering would lead to pressure to filter more and might lose the benefits of the DMCA safe-harbor.

Across the ocean, music companies represented by the International Federation of Phonographic Industries have sued Chinese search portal Baidu.

"Pirate Bay hit with legal action"

2008-02-05T03:59:00.000-05:00

Don't know if this was mentioned in class already, but the International Federation of the Phonographic Industries (as well as the RIAA and MPAA) have been after a Swedish site, The Pirate Bay, that posts links to torrents of copyrighted material and receives advertising revenues. Now charges have actually been filed in Sweden for conspiracy to break copyright law, with major studios among the body of plaintiffs.

John Kennedy, chairman and chief executive of global music body, the International Federation of the Phonographic Industries, said: "The operators of The Pirate Bay have always been interested in making money, not music.

"The Pirate Bay has managed to make Sweden, normally the most law abiding of EU countries, look like a piracy haven with intellectual property laws on a par with Russia."

And for the personal touch, a BBC reporter goes Inside the Pirate Bay warship, where no major changes are expected as a result of the litigation. The Pirate Bay has even set up servers in other countries, just in case:

Some of these are within the EU but others are further afield - in case the EU decides to lend support to a Swedish ruling against The Pirate Bay - or other European nations come under pressure to take similar action.

Content Industry Conspiracy

2008-02-01T14:06:00.000-05:00

So...I was reading through the article "Wired Shut" and came accross the point in the article that discusses how industry groups (content owners and technology manufacturers) got together to come up with a plan to protect digital broadcasts. The industries got together to discuss what would be the most advantageous plan for themselves, came to a self-serving agreement, and then presented that agreement to the FCC to endorse. I am doing my paper topic on the effect of the DMCA on fair use, and many of the articles/books that I have read have discussed how members of the content industry got together to come up with a plan to protect themselves from the great threat of "piracy". This group then presented this plan to Congress, which pretty much signed off on it, and it became the DMCA. I am just wondering who is looking out for the public during the planning and enactment of all of these schemes to change copyright law? It seems to me that it is Congresses' job to balance the public interest with the rights of copyright owners; after all the original purpose of copyright was to benefit the public. Congress seems to have done a poor job of protecting the public interest, but they have done a really good job of protecting industry interests.

The intersection of copyright and antitrust (paper topic)

2008-01-28T11:06:00.001-05:00

To date, the RIAA has filed thousands of infringement suits against individuals who have allegedly downloaded or distributed copyrighted material. The litigation strategy takes full advantage of the power of the Association, including ex parte discovery orders, settlement demands via letter with no opportunity for negotiation of terms, and pursuing default judgments for $750 per song alleged (a number over 750 times the amount which the song could have been purchased for.) This litigation strategy is intuitively collusive, with high powered companies joining resources to protect their power. The reality is that rarely is a monopolistic purpose articulated, and to date, these litigation strategies have been effective not only in winning at least one large jury verdict (i.e. Jammie Thomas), but in coercing many people into settling whose cases may have been much weaker.

My plan is to look at the ways in which antitrust counterclaims and the affirmative defense of copyright abuse have been used in response to infringement suits filed by the RIAA. My hope is to articulate the ways in which this sort of mass litigation feels like monopolistic activity, but falls outside the reach of antitrust law generally. My thesis is that the overbroad grant of property rights under the current copyright scheme has led to an ability by multi-billion dollar companies to legally collude to maintain monopoly power without much legal recourse. The state of the law and the difficulties in standing and proof, combined with the massive resources, both in litigation power and lobbying power, of the RIAA leave those accused of infringement without meaningful options beyond settlement, which is based generally on a statutory damages scheme which is massively out of proportion to the harm allegedly caused by any potential infringement. What remains to be seen is whether there is a monopolistic benefit to enforcing copyright in this manner (litigation against individuals by a group of copyright holders), or whether they are simply using permissible litigation strategies to enforce their lawful copyrights. In any event, I hope to shed some light on the breakdown, if not in the market for digital music distribution, at the very least in the statutory grant of rights and remedies for copyright holders.

So... what legal recourse is there for punishing piracy?

2008-01-17T17:11:00.000-05:00

Still stumped on a paper topic--throwing the words "IP", "techology", and "anime" into a blender came up with nothing except a note on a company in Singapore trying to go RIAA on local illegal downloaders:

Odex has copyright owners' support

and the slightly more up-to-date

Crackdown on Anime Downloads in Singapore (this is, by the way, a rather misleading title, since Odex was only able to get access to accounts from certain providers; not really a crackdown so much as a flurry of letters to whoever was available.)

Tivo tricks

2008-01-16T12:07:00.000-05:00

So, we all know that Tivo lets you time shift stuff on TV, lets you record things that you might like without knowing that you might like it, and so on.

But did you know that you could subscribe to online only shows and download them to your TV?

For example, the center-left blog Talking Points Memo does a show called "TPMTV" every day, where they do a short clip on the days news. You can access it here:
http://www3.tivo.com/tivo-tco/cds/info.do?mixId=tivo:mx.1267331

This sort of thing is another use of the Tivo system (and other digital recorders?) that most likely no one would have thought of a few years back, but seems really useful.

Ok, so this might have been better as a comment somewhere, but I didn't see an appropriate place...

Canadian DMCA

2008-01-14T15:32:00.000-05:00

Happy snow day all! Since there's no class tonight, and I have a conflict with the make-up class on Friday, I thought I'd at least contribute to the DMCA/Anticircumvention discussion:

According to this article, Canada is hard at work on its own DMCA (much to the joy of many Canadians, I'm sure). Perhaps they'll at least take some lessons from our experience so far. . .

By the way, I have no idea how I keep stumbling across articles on what Canada's up to.

Paper Idea: An Efficiency Justification For Abolition of Music Copyright

2008-01-12T14:26:00.000-05:00

This paper topic hurts my brain -- if you have any spare cycles, please jump in and help.

Should copyrights be narrowed? The debate often comes down to efficiency vs. fairness. Efficiency Point: legal protection for DRM permits fine-grained markets for various copy rights, leading to the most efficient generation of social welfare and incentive for creation. Fairness Counterpoint: absolute legal protection for rights-holding distribution oligopolies generates wealth only for those oligopolies, harming both artists and consumers. (For Westlaw subscribers, this law review article is an example of this view of the debate, taking the efficiency side.)

I want to argue something different: in the internet age, "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" is no longer an efficient way to "promote the Progress of Science and useful Arts," and Congress should abstain from its power under the Copyright Clause.

The argument goes like this:

"Property" is a legal creation, meaning "a government-granted exclusive, transferrable right to do something." For example, the right to drive a particular car, cross a particular bridge, sit in a particular movie theater or copy a particular mp3.
Government creates property in order to generate wealth through efficient transfers. Creating a property right in cars generates a market for cars, which in turn ensures that producers will manufacture cars, and the ultimate owner of each car is the one who values it the most.
However, exclusive rights lead to inefficiency in cases where the market leaves resources unused. For example, most movie theaters have empty seats in most screenings. If there are consumers who would pay something for those seats, but less than the $8 entry fee, then net wealth is lost each time they are excluded.
Therefore, markets created by a government-granted property right should be judged along several efficiency axes: the wealth they generate through efficient transfers, and the wealth they destroy through over-pricing and under-using resources ("exclusion cost").
Exclusion cost can be defined as the amount additional consumers would have paid for the product, minus the cost of serving each consumer. For example, if the additional seats could have been filled at $4 a ticket, costing the theater $1 per ticket for cleanup costs, the exclusion cost is $3 per seat. That $3 is forever lost to society.
Exclusion cost will vary wildly from market to market. Property rights in oil have no exclusion cost; every drop gets sold. Property rights in theater seats have some exclusion cost; a few seats in each screening aren't used. What about property rights in song files?
The internet changed the answer to this question dramatically. Post-Napster, an unlimited number of copies can be created at a marginal cost of $0. That means the exclusion cost can be defined as the total amount consumers would have been willing to pay for a copy of each song available on Napster, where those consumers are unwilling to pay the current market price. Based on the amount spent on music and the amount of music downloaded illegally, that net welfare loss is likely to be quite high.
At the same time, with marginal cost declining to $0, the efficient-transfer justification for the property system loses force. Nothing is lost by providing a good to Consumer A, who values it at $.01, just because Consumer B values it at $10. Both of them can have the song.
The efficiency analysis of the copyright system now seems to weigh against property rights, at least in the context of music. Lacking the efficient-allocation justification, the additional music incentivized by copyright is unlikely to balance out the exclusion cost of copyright.

So, that's where I've gotten so far. I have a ton of questions:

I'm sure I didn't invent this idea, but I don't even know how to find what's already out there. What's the actual economics term for what I'm calling exclusion cost?
If copyright was abolished for music, what system would replace it? Are there other, more efficient means to incentivize creation?
Are there analogous markets and incentives out there, like lighthouses and roads and GPS satellites?
- In the ones I can think of, it's not so much a problem when the government picks winners and losers.
- Also, in the ones I'm thinking of, it's not 1) possible to add consumers at no additional cost (like GPS) AND 2) possible to try to exclude consumers unless they pay individual fees (like highways). Are there markets that have both features, like the music market does?

I know this is hard stuff, but like I said, it's hurting my brain, and I'll be super grateful for anything people can add.

Game modifications and the law (Paper Topic)

2008-01-08T15:26:00.000-05:00

Some of you who are gamers may be aware of the concept of "game modifications" or "mods."

Mods are popular in the First Person Shooter category, with favorites such as Rocket Arena for Quake and Counterstrike for Half Life being notable examples. The Counterstrike mod became so popular that it is now a stand-alone product published by the creators of Half Life.

A game modification is defined on Wikipedia as "a software modification to alter a computer-game's appearance or play." Sometimes mods will add new weapons or characters, or alter gameplay in some manner. An example of a gameplay modification is "Instagib." In first person shooters, an "Instagib" mod alters gameplay so that players can only use the "Railgun" (or similiar weapon), and one hit kills. The game structure is otherwise unaffected (ie, you still run around killing each other), but this one change dramatically affects the pacing and strategy of a match.

The legal issue here is that mods are often made by consumers without the permission of the game publishers. Arguably, they are derivative works. Some issues I want to look at (although I will probably have to narrow down to a few) are:

The Copyright status of game modifications absent licensing (is there an inherent right- protected by fair use- to modify games? It can't hurt the market for a game, because you still need to purchase the game to use the mod.)

Licensing- The availability of mods can greatly enhance the value of a product, and so game companies sometimes license the creation of mods, giving developers access to code before the game even comes out, so mods are available at launch. How are game mods licensed, and what do different licenses look like? Are there categories? How does this interact with open-soruce licensing? (sometimes game code is publically released underopen-source or other licenses after the game has run its course. The code for Doom, Quake 1, 2, 3, was released years after the game was popular.)

The legality of mods that use another companies IP. For example, someone might modify a game so it has a "Star Wars" theme, so instead of shooting terrorists you shoot Stormtroopers.

Reverse engineering. If you make a mod without permission of the publisher, you might have to perform some reverse engineering to figure out how the game works in order to modify it the way you want. Is this reverse engineering a violation of copyright?

I also want to look at the legal issues surrounding mods that "unlock" content that the game maker specifically decided not to include in the final game, but nonetheless was still available somewhere on the disc. For example, in Grand Theft Auto San Andreas, it was possible to hack the game so that a sex scene would play. This scene was added by the programmers, but was not intended to be included in the final version. This ended up causing the company PR problems, and ultimately the rating was changed from "Mature" to "Adults Only." This likely cost the company millions of dollars, because many stores do not carry "Adults Only" games. Should the modder be liable? Or was the company at fault, because after all, even if they never intended the scene to be playable, it was included on the disc the modder purchased? How does the First Sale Doctrine apply? Should the modder be able to mod his own game to have the scene, but not to distribute the mod? A case that might be instructive here is Harper & Row v. Nation Enterprises, the Ford memoir case. Remember the discussion of unpublished works. Was the sex scene "published" in the GTA case? Is it possible for content on a disc I bought to but unpublished because it is inaccessible without modifying the game?

Editing software. Sometimes a game company will release editing software with the retail version of the game, allowing consumers to make their own levels. The roleplaying games Morrowind and Neverwinter Nights did this. What is the legal status of these levels- who owns them? May they be sold? Most likely these questions are handled by license, (ie, you agree to their terms as a price of using the editing software) but what if there was not a license?

Case studies on Counter-strike and Team-fortress. These particular mods became commercial successes, and I want to look at how the licensing and other legal issues worked out in practice. Who owns the mod? Did the mod-creator have any say in how and whether the mod was published commercially? If he or she did, was the publisher legally required to give the creator a say, or was this done merely to avoid antagonizing customers?

In other news

2007-12-28T16:09:00.001-05:00

Here's a story about Itunes' plan to develop a movie rental service, and it's plan to license Fair Play to 20th Century Fox. The plot thickens...

Story from CNN

Variable pricing loses another round

2007-12-28T14:02:00.000-05:00

As seen on Salon.com, Walmart has abandoned its movie download service. Walmart had apparently been preferred by Studios to Itunes because it offered variable pricing, and perhaps should have been preferred by consumers because there were lower prices (a few cents cheaper for tv shows, 2 dollars cheaper for older movies). I personally didn't know Walmart had an online movie download service, so publicity may have been a problem (though as a Mac user from the Northeast, I'm likely not in their demographic). Walmart's ostensible reason for abandoning the program? HP has stopped supporting the technology that the service was based on.

It seems to me that if this was a profitable venture for Walmart, then it couldn't be that difficult to upgrade to another technology, right? My gut says that they weren't making any money and this was as good a time as any to shut it down and the HP story is to help them save face.

My question then is, is variable pricing as important to the consumer as it is to the creator? If the reality is that consumers will prefer a consistent technology over a cheaper one, then why are the studios so bent out of shape about the Itunes pricing? They argue that it prevents them from competing - but as the Walmart model demonstrates, lower pricing doesn't necessarily translate into better competition. It may be more accurate for the studios to complain that Itunes's ostensible monopoly over digital distribution and their control of the pricing structure in fact prevents the studios from extracting rents on their own monopolies (i.e. charging much higher prices for new releases of very popular titles/artists.) The success of Itunes, (whether currently a monopoly or not) may have less to do with their use of their monopoly power and more to do with consumer preference and a successful business model. Studios that petulantly refuse to license titles for sale this way expose their own desire to use their copyright monopolies to extract greater rents.

I can run, I just can't hide...

2007-12-20T20:19:00.001-05:00

This is entirely an (questionably) amusing anecdote, so you may feel free to ignore it as you will learn very little from actually reading it. I just got home - to Puerto Rico, for those of you who don't know me personally - a few hours ago and went to see a movie with my brother in the evening. (I Am Legend, for those of you curious.) We're sitting there enjoying the trailers before the movie starts, when suddenly a new ad comes along. It's shot in really grainy, dodgy film, and you can tell almost immediately it's not a trailer for a movie you're going to be seeing in a theater anytime soon.

::Scene: A family gathers to breakfast, comprised of an older grandmother, a younger mother, and a pair of (arguably adorable) little kids, a boy and girl. The mother comes in from stage right and plops a black DVD case on the table.::
Mom: "Look, I just bought this pirated movie! It was really cheap!"
Grandmother: "Pirated movie? Isn't that stealing?"
Mom: "Nonsense. I bought the movie. Besides, it looks really good."
Boy: "Okay, I'm going to school now." ::Grabs his bookbag, prepares to do so.::
Mom: "Hold on. Don't you have a test today?"
Boy: "It's okay. I got a copy of the answer sheet yesterday."
Mom: "You stole a copy of the test?!"
Boy: "No, mom. I bought it." ::He then walks out, leaving the rest of the family agape. The mom and the grandmother share a look, and the little girl shakes her head.::
Girl: "He's just following your example."
::Exeunt, stage right.::

This disturbed me on a number of levels. (By the way, the preceeding was a translation to the best of my recollection. The original ad is in Spanish with really bad Mexican actors. [Which isn't to say all Mexicans are bad actors; simply to note the simple wisdom that if you're trying to reach the movie-pilfering population of Puerto Rico, your chances are slim doing so in a Mexican accent.]) Let's begin the analysis:
1) This ad about not buying pirated movies is being shown to a group of people who just dished out $10 a pop to go see a theatrical release. Is there not a little bit of biting the hand that feeds you here?
2) What is this teaching people? All wrongs are equatable? Is buying (or downloading... let's just say 'acquiring') a pirated movie really as morally culpable as cheating off a test? (Or, alternatively, is cheating off a test really as morally culpable as acquiring downloaded movies?)
3) How many mothers out there are acquiring downloaded movies anyhow?
4) Why, oh, why is class following me 3,000 miles away across the Caribbean Sea?*

*Edit: I just double checked my facts, and technically the Caribbean borders the south of the island. I am, in fact, technically across the Atlantic. I think.

Copyright Utopia: From Poverty To Wealth

2007-12-19T15:41:00.000-05:00

Let's raise the ante: we live in a prison of artificial scarcity that impoverishes us all. If our children do not look back on this time as an IP dark age, it will be only because of our own failure of courage and imagination.

For example, imagine flipping a switch and instantly creating billions of dollars in wealth:

Today, we scrounge for IP. Consumers spend years carefully building a music collection of a few hundred albums. They watch movies parcelled out disk by disk from Netflix. If they want to read one of the 75% of books that is under copyright but out of print, they have it trucked in from a distant location by inter-library loan.

The utopian alternative: if market-based copyright disappeared, then by tomorrow the same consumer could have every book ever written, every album ever recorded, every movie ever made, delivered instantly for the price of an internet connection.

This dichotomy demonstrates the social cost of market-based copyright: as long as we incentivise creation by allowing producers to charge consumers for each use, we necessarily lose the wealth created by each foregone copy.

How much wealthier, in billions or trillions of dollars, would our society be if every consumer's media library expanded to infinity? More speculatively, what new scholarship would emerge from a universal, searchable library? What new ways to explore and experience the universe of film and music would be created?

The two alternatives are not far apart -- at the extreme, we could move from poverty to wealth simply by dropping an existing statute.

Of course it wouldn't be that simple. If we flipped the switch tomorrow, it would destroy every existing media business model, from 100 million dollar movies to 25 cent newspapers. New models would take a while to emerge, and it's hard to predict what we would have lost once the dust settled.

That said, we still might be better off with no copyright law than the one we have now. The point is that our current system leaves vast wealth on the table, accessible to no one -- so much wealth that you can't reject even the craziest scheme out of hand. We should be bending over backwards to try to reclaim it.

I want to stake out this radical stance as a sort of North Star. For example, in class we tried to answer questions like, "can DRM technology and law enable online lending libraries, without eliminating fair use?" Much as I mistrust DRM, I have to admit that online libraries sound like a pretty cool idea; the impact of technological copy prevention, backed up by the legal strength of the DMCA, might indeed work a sort of revolution in the market for copyrighted works.

The big picture, however, is that this kind of question assumes that copyright will remain a market system, with rights negotiated between distributors and consumers on a use by use basis. It leaves the social cost of market-based copyright intact.

Let's not settle for such a paltry revolution.

DRM-free iTunes

2007-12-19T00:44:00.001-05:00

A brief comment related to the last class discussion about DRM, iTunes, and EMI: so I finally gave into iTunes' insistent demands that I upgrade to version 7.5, and now it promises me access to iTunes Plus (which I did not know even existed) at the new, lower price of 99 cents (as compared to the previous price of $1.29 for the DRM-free EMI tracks they used to offer). These iTunes Plus tracks are supposedly DRM-free and higher quality.

It looks like they offered you the option to upgrade your non-plus tracks to Plus for 30 cents each, back when iTunes Plus cost $1.29, and now that it all costs the same, you have the same option to upgrade... yes, still for 30 cents a track. A minor inconvenience in the larger scheme of things, true, but my American Gamelan Chorus tracks are not yet so precious to me that I'm planning to pay up. That whole "but I already paid you the current market price for this!" mentality at work. Still, after reading Bardia's post below, I guess I should be chipper about the whole thing.

Atlantic Records argues that "space-shifting" is illegal.

2007-12-18T19:28:00.000-05:00

Electronista.com has a post about a complaint Atlantic Records has filed against the Howell family in Arizona. At first glance, the case appears to be a run of the mill P2P sharing case, but its got an interesting twist: Atlantic Records is arguing that the defendants' act of converting CDs that they had lawfully purchased into the mp3 format for use on their home computer constituted the creation of "un-authorized copies" of their copyrighted recordings.

Electronista notes that this contradicts a stance previously taken by the RIAA on this issue in Grokster, before the Supreme Court, where a representative of the music industry said that, "It's perfectly lawful to take a CD that you've purchased, upload it onto your computer, [and] put it on to your IPOD."

The implications of this argument resonate with a point that was made in our DRM discussion on Monday night, albeit in a slightly different context, in that it shows how the approach being taken by content owners actually penalizes lawful consumers. While in this case, the Howells allegedly did more than just create "unathorized copies," if it is, indeed, illegal to buy a CD and put it on your computer and then onto your IPOD, then why not just download the music illegally in the first place and save yourself the money?

At the same time, from the perspective of the RIAA and other content owners, this would seem like a perfect application for DRM-type protection. Will record companies go back to trying to make CDs "unrippable" or use a system that allows the owner of a CD to rip it once to his computer and put it on his IPOD but NOT allow it to be shared? If they do, how long before the "darknet" responds?

Watch full episodes online...

2007-12-17T14:29:00.000-05:00

Our class discussions made me think about how people are starting to watch their favorite television shows on-line. All of the major networks are now encouraging people to tune in on-line, so where does this new technology fit in all this debate? How close a connection to Sony and time-shifting do we have here? Does it matter that (as of now) you cannot download the episodes, but simply watch them as streaming video? Then again, haven’t people already determined ways to record these episodes? For example, check out “How to Save Streaming Media”.

As I was looking around the internet, I also came across this site: “Full TV Downloads”. In very small print at the bottom, the homepage says “The purchase of a membership, however, is not a license to upload or download copyrighted material. We urge you to respect copyright and share responsibly.” It then directs you to this page detailing how to use p2p safely: "Share Responsibly". Sufficient?

Net Neutrality and other Upcoming regulatory fights

2007-12-16T19:26:00.000-05:00

A good site for net neutrality information is savetheinternet.com It is definitely pro-regulation to maintain net neutrality (as I am), and for other types of regulation. For example, when Verizon blocked Naral Pro-choice America from sending out text messages to people who had signed up for alerts, savetheinternet.com fought it.

They have a blog post on that issue at the top of their blog now.

The industry response is hands0ff.org, which claims that we have enough regulation already, thank you very much, and that additional regulation will cause less investment as more and more data needs to be sent out.

Comic books and IP?

2007-12-14T18:21:00.000-05:00

On the topic of mash-ups and covers, this is pretty much the greatest existing, um, appropriation of any 90s one-hit Canadian reggae wonder that ever there was. Oh, you can try to argue otherwise... but you would be tragically mistaken.

Anyway, IP and technology issues rear their heads in all kinds of places, including comic book news site comicbookresources.com. It's not just mp3s that people are downloading, it's scanned comic books as well, hence this brief interview with "Super Lawyer" and P2P expert Darren S. Cahr:

"This is the great conundrum of the modern digital age as it applies to copyright law," offers Cahr. "The problem, however, seems to me less an issue of how IP law should be changed, and more an issue of how companies and artists choose to use their copyrights... Are there ways of encouraging 'good' free distribution of certain kinds of products without permitting wholesale copying and distribution of the entire work? Are there ways of pricing in freely downloadable items while 'making up the difference' with other products or services? Too many commentators think about copyright law as a barrier, or an obstacle, instead of thinking about it as an opportunity for creativity."

However, much of the article is the author seeking support for his opinion that online piracy isn't really a problem and is, according to quoted source Eric Flint, in practical effect "no different from that of any existing method by which readers may obtain books for free or at reduced cost: public libraries, friends borrowing and loaning each other books, used book stores, promotional copies, etc."

Speaking of comics, Marvel Comics recently launched Marvel Digital Comics Unlimited: pony up $5 - $10 a month and read back issues of comics online as much as you want (to the extent of the library currently available). You can't download, however, which has irked fans. Similarly, some Japanese animation licensing companies, complaining of being hit hard by illegal downloading and fansubbing activities, are making their first stabs at putting episodes online for download at a couple bucks per episode instead of $30 for a 4-episode DVD; this has also met with a mixed reception. Also, given the frequency with which fans seem to complain that they can't afford to pay for comics/anime at street prices anyway and the value of anime to many fans is zip, zero, I'm not sure that the rosy assumption that piracy makes up for itself in promotion is necessarily true. (I suppose it could be argued as well that what fans refuse to pay in burnt DVDs full of downloads, they might partially make up for in purchases of less-reproducible tie-in merchandise like statues, plushes, keychains, hats, etc.) But your mileage may vary.

Media lawyers cripple Western Digital hard drives and Congress considering upping filesharing fines

2007-12-10T23:45:00.000-05:00

Today's Webb Alert has a pair of good stories on DRM's effects on the media. Looks like Western Digital has decided to block their latest hard drives from copying media files over the web and it seems someone in Congress finds that the fines in place for filesharing just aren't enough. But Morgan Webb is much prettier than me, so you should listen to her tell you about it. (The stories of interest are the first two, being about two minutes - though I find the rest of the podcast entertaining, being about 6 minutes total.) You can find links with more information on the stories on the show notes.

Should Congress Require Universities to Deter Illegal Downloading?

2007-12-10T16:30:00.000-05:00

I found this to be an interesting article, especially in light of our first class. While the article doesn't mention anything about holding universities liable for student piracy, it suggests Congress wants to hand them some responsibility for regulating illegal file sharing.

PIRATE Act dons eye patch, swashbuckles back into Senate

2007-12-10T12:20:00.000-05:00

By Nate Anderson | Published: November 08, 2007 - 02:29PM CT

The PIRATE Act is back, and this time it means business.

Sen. Patrick Leahy (D-VT) and Sen. John Cornyn (R-TX) yesterday introduced the Intellectual Property Enforcement Act (PDF), with Leahy saying, "The PIRATE Act has passed the Senate on three separate occasions; this should be the Congress in which it becomes law."

Like previous incarnations of the PIRATE Act, this one tries to force the Department of Justice to bring suits against individual file-swappers, something that could save the recording industry plenty of money and could also displace some of the "bad guy" stigma that the labels have acquired after suing people like Jammie Thomas.

The bill would give the Department of Justice authority to bring civil (not just criminal) cases against infringers, though it does limit penalties to those that could be imposed in criminal proceedings. The Attorney General can also bring such civil suits only when the act in question constitutes a crime (such civil suits can be easier to win).

Leahy and Cornyn want Justice to start prosecuting file-sharers, which sounded like a bad idea the first time we heard it and hasn't gotten any better since. Since the No Electronic Theft Act passed in the late 1990s, the DoJ has actually had the authority to bring criminal cases against file-swappers under certain situations; to date, it has not filed a single one.

The Department would no doubt rather be busting gangsters, child molesters, and even actual counterfeiting rings, but it seems like some members of Congress are intent on pressing Justice to get involved in the P2P lawsuit game—something that Big Content would dearly love to see happen.

The bill also provides more funding to counter intellectual-property crimes involving both computers and Internet, along with more FBI agents to investigate such crimes.

"Copyright infringement silently drains America's economy and undermines the talent, creativity and initiative that are a great source of strength to our nation," said Leahy. "When we protect intellectual property from copyright infringement, we protect our economy and our ideas."

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early incarnations of the PIRATE Act: http://www.news.com/'Pirate-Act'-raises-civil-rights-concerns/2100-1027_3-5220480.html

http://www.news.com/Senate-OKs-antipiracy-plan/2100-1027_3-5248333.html

"Mashups Bad! Covers Good!" - Should Copyright Prefer Cover Songs to Remixes?

2007-12-10T09:13:00.000-05:00

Here's a dangerous game: let me share some notable illegal art with you, and see what you think.

Mashups:

Sweet Home Country Grammar: Nelly vs. Lynyrd Skynyrd. listen here - Time Magazine says "the unlikely pairing of Lynyrd Skynyrd's riff and Nelly's spliffs improves both."

Evolution Control Committee - Rocked By Rape: a high-larious mix of the darkest things Dan Rather has said with Back in Black (unlike other pieces here, this one's at least partly covered as parody). listen here - threats and plaudits.

George Bush Don't Like Black People: original lyrics over Kanye West's "Gold Digger," referencing his criticism of the President after Hurricane Katrina. music video here - wikipedia - hilarious copyright hijinx (OK, so Kanye West sampled some old blues song to complain about gold-digging women, but then these guys stole the prominent lyric from Kanye's song, and the sample, to criticize George Bush. So then naturally they were sued by ... JibJab, the internet comics who made a video called "This Land" in 2004 to criticize George Bush and John Kerry, and were sued by the estate of Arlo Guthrie, until it turned out Arlo had stolen the tune from the Carter Family ... aw, just click the link.)

The Grey Album: remixes Jay-Z's Black Album with the Beatles' White Album. listen here - wikipedia - the Grey Video (played in class)

The Kleptones - A Night At The Hip-Hopera: remixes Queen songs with a hundred other things. sample song - download album - wikipedia lists the sources.

Deen Gray - American Edit: remixes Green Day's American Idiot with lots of stuff. sample song - download album - wikipedia - Green Day calls the mix "really cool".

Mei Lwun - Marshall's Been Snookered: apparently Eminem raps in ragtime. (If you don't like him, skip this one). listen here - love from the Village Voice.

If you read the related links, you'll see some common themes: artistic applause and extended legal harassment. Now let's turn to ...

Cover Songs:

Here's a few interesting covers. Unlike the previous list, these songs are blessed by the Copyright Act.

Nina Gordon - Straight Outta Compton: Nina Gordon of Veruca Salt covers NWA on acoustic guitar. listen here - song generously shared by Nina herself.

Cake - I Will Survive. listen here.

Iron & Wine - Such Great Heights. listen here.

Johnny Cash - Hurt. music video here.

These ones aren't quite as obscure, huh? Well how about Respect covered by Aretha Franklin? All Along The Watchtower covered by Jimi Hendrix? Twist and Shout covered by the Beatles? Any song ever recorded by Elvis? (See wikipedia for a zillion more ...)

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So, I hope you've checked out and enjoyed at least some of the links. My main point is: mashups can be delightful -- and incidentally, they serve a similar role to cover songs in making unique and important contributions to our culture.

I should probably talk about the law as well, though. There's a reason that the covers I listed are all available on CD, while the mashups live in an underground, online ghetto. (By the way -- if you liked any of the covers, maybe you should buy the albums ...) That reason is the "Compulsory license for making and distributing phonorecords" provided by the Copyright Act.

Under this section, artists are free to release cover versions of songs as long as they pay 9.1 cents for every copy. Because this is a compulsory license, effective markets such as HFA Songfile have emerged to make compliance pretty easy.

Paper Idea One: Is there something different about mashups -- which use an artist's actual voice and music, after all -- from covers, which justifies leaving them out in the cold? Or do the files I linked to make enough of a cultural contribution that the copyright system should support them somehow? How would you write that statute?

Paper Idea Two: Most of the mashup artists in the first list violated the copyright act by distributing derivative works without a license for the original material. YOU violated the copyright act ($750 minimum per violation!) by clicking on the links, knowingly requesting copyrighted material. Question 1: how does that make you feel? Question 2: have I violated the act, by providing links to a third party site that hosts copyrighted material? Can it be that HTML links to third party sites subject this post in our class blog to many thousands of dollars in liability? Napster seems to suggest so. If Wendy fails to delete this post, is she liable as well?

DRM and the DMCA - Analog Analogy

2007-12-09T14:42:00.000-05:00

Wil Wheaton, (Wesley Crusher from Star Trek and a shockingly good writer) has an interesting post up about DRM and makes an analogy to a childhood toy gun.

Basically, the popgun he bought had a certain, proprietary type of caps it used to make a "bang" sound, and when the toy store didn't have or stopped carrying that type of cap, he was stuck making "bang" sounds himself.

There are also a few interesting links at the post. Give it a look!

How to format comments using HTML

2007-12-05T20:36:00.000-05:00

A few people have asked how to format comments. There are three HTML tags that you can use to format your comment posts:

You can make things italic, by putting before the italic text and after it.
You can make things bold, by putting before the bold text and after it.
You can add links, by putting <a href="http://yourlinkhere.com/"> before the text of the link and </a> after it.

Putting it all together, you might end up with something like:

Someone wrote ...

Blah blah blah blah

Excellent point! Did you consider <a href="http://en.wikipedia.org/wiki/Blah">blah</a>?

which would come out as

Someone wrote ...

Blah blah blah blah

Excellent point! Did you consider blah?

Windows Vista to Drop Antipiracy Killswitch

2007-12-04T10:45:00.000-05:00

A good example of the customers influencing the business. Full story is here (found in BBC News).

Microsoft is to withdraw an anti-piracy tool from Windows Vista, which disables the operating system when invoked, following customer complaints.

The so-called "kill switch" is designed to prevent users with illegal copies of Vista from using certain features.

I remember there being a lot of controversy over this, based off of the Windows Genuine Advantage program. Windows XP was similarly hit with a fairly buggy and problematic issue when it came to registering its product early on. (And, even now, if you have a legitimate copy of XP and upgrade your hardware enough or simply buy a new computer, with the intent of porting over your OS, it's going to flag you as an illegal user.)

Apparently the old registration method wasn't enough, so they decided to add a full on block to you using the software.

The tool can "lock" Vista from further use if it believes it is an unauthorised copy. But many users have complained that the system is not working because legally bought copies result in error messages.
...
Microsoft said it had pursued legal action against more than 1,000 dealers of counterfeit Microsoft products in the last year and taken down more than 50,000 "illegal and improper" online software auctions.

1.8 Quadrillion Dollars: The Big Money of Copyright Damages

2007-11-27T12:59:00.000-05:00

Filesharing is huge -- as of August 2005, 9.6 million people were logged into file sharing networks at any one time, and approximately one billion songs were traded each month.

What's the penalty for those billion infringements? Each willful infringement may be punished by statutory damages of up to $150,000. Potential total damages worldwide add up to 1,000,000,000 songs * $150,000 = $150 trillion per month. Multiply by twelve months, that's $1.8 quadrillion dollars per year in potential statutory damages from online filesharing.

Since the worldwide Gross Domestic Product is $66 trillion, filesharers are on the hook for up to 27 times the total economic output of the planet, each year. (If courts only awarded the statutory minimum of $750 per infringement, the total would come to only $9 trillion, 13% of world GDP).

These numbers sound absurd, but they're not all hypothetical. Recently a jury awarded $222,000 against one defendant, Ms. Jammie Thomas, for sharing 24 song files -- the potential maximum penalty was six times as much. Here's an interesting question: what if she had stolen $24 worth of iTunes gift cards, or a couple of CDs, from her local Best Buy and distributed them at random to strangers?

Well, check out the Massachusetts shoplifting statute. If the defendant had, instead of running Kazaa for a few hours, stolen less than $100 of merchandise from a brick-and-mortar store and handed it out on the street corner, she could be fined up to ... $250.

So, we have a situation where the penalty for stealing and distributing actual, physical property from a store is $221,750 lower than the penalty for copying files on a computer, even when the latter crime did not necessarily cost anyone a penny. (We should explore whether filesharing increases or decreases legitimate purchases in later posts).

Can you justify that because shoplifting is much more likely to be punished than filesharing? (Is it fair to punish one person for 1000 crimes?)
Or, can you justify that because the receivers of the Kazaa files might have turned around and distributed them, multiplying Ms. Thomas' crime (even though that could apply to the iTunes files too)?

Where Congress has imposed draconian measures to try to stop something that 27% of American internet users did routinely as of 2005, should we start asking if there's a better way?

By the way, don't relax just because you're one of the majority who never open a filesharing program. You too are likely a routine and flagrant violator of copyright laws. Consider this thought experiment from law professor John Tehranian at the University of Utah:

By the end of the day, John has infringed the copyrights of twenty emails, three legal articles, an architectural rendering, a poem, five photographs, an animated character, a musical composition, a painting, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges). There is nothing particularly extraordinary about John’s activities. Yet if copyright holders were inclined to enforce their rights to the maximum extent allowed by law, barring last minute salvation from the notoriously ambiguous fair use defense, he would be liable for a mind-boggling $4.544 billion in potential damages each year. And, surprisingly, he has not even committed a single act of infringement through P2P file sharing. (emphasis added)

The whole article is worth a read -- highlights of the hypo include $150,000 for reading a 1931 e.e. cummings poem to a law school class, and a court-mandated laser tattoo removal. (I found the thought experiment via this Slashdot article).

At this point you might wonder, can Congress really do that? One ongoing case, UMG v. Lindor, will test whether such high damage figures violate the due process clause:

[Defendant] cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered.....Furthermore, Lindor provides a sworn affidavit asserting that plaintiffs' actual damages are 70 cents per recording and that plaintiffs seek statutory damages under the Copyright Act that are 1,071 times the actual damages suffered. (also found via Slashdot)

What should the outcome be?

Blogging mechanics

2007-11-26T05:42:00.000-05:00

Once you have given me your email addresses, you will each receive an individual invitation to join the team blog. (Please watch for a message from no-reply@google.com, "You have been invited to contribute to W. Seltzer's blog," and follow the link there.) You will be prompted to create a profile (or sign in to an existing Blogger account) and you will then be able to write new posts from the Blogger start page or from the "new post" link while reading the blog.

The weblog will be publicly readable. You may post under your real name or a pseudonym, but you must tell me your name so I can give appropriate credit. Please be sure to let me know if you have any technical problems.

Welcome to the Technology Regulation Weblog

2007-11-26T05:37:00.000-05:00

This weblog complements the Intellectual Property and Technology Regulation seminar.

If you're in the seminar, you'll get access to post here. If you're not, feel free to read and comment.