Intellectual Property

Volokh-Solum debate on IP

I meant to blog this earlier, but Ed Felten beat me to it. Eugene Volokh (The Volokh Conspiracy blog) and Lawrence Solum (Legal Theory Blog) are having an interesting debate on the theory behind the idea of treating intellectual property as tangible property, hinging mostly on the idea of the level of property rights necessary to offer incentives to produce intellectual and tangible goods. The postings so far:

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More RIAA Blowback

The blowback from the RIAA’s lawsuits continues. First, recording artists like the Grateful Dead’s Bob Weir, Chuck D of Public Enemy, DJ Moby, Steve Miller and Huey Lewis are all speaking out against the lawsuits, and more importantly against the myth that the RIAA is out to protect the artists. The plight of artists is the only source of sympathy the RIAA has, so this kind of talk hurts a lot. Then in a turnabout-is-fair-play move, a California man has filed lawsuit against the RIAA, alleging that their clean slate program is fraudulent because it offers an amnesty the RIAA does not have the right to grant. Finally, the EFF has started a petition to congress that protests the RIAA’s lawsuits, calls for “the development of a legal alternative that preserves file-sharing technology while ensuring that artists are fairly compensated” and asks that the EFF be included in upcoming hearings on the subject. The petition has already received over 12,000 signatures in first two days.

Meanwhile, RIAA president Cary Sherman is invoking that old standby Devil, child pornography, in congress. A pedophile could send “an instant message to the unwitting young person who downloads an Olsen twins or Pokemon file from the pedophile’s share folder on Kazaa,” Sherman said.

What strikes me is how differently this battle is playing out in the press than the CyberPorn and Kevin Mitnick battles did back in 1995. Remember back then, when the word “hacker” was spoken in the same frightened reverence with which we speak the word “terrorist” now. For better or worse, our society has realized in this last decade that there are worse crimes than porn on the Net, worse violations of our civil liberties than export restrictions on our cryptography, and more dangerous people than our own children. We’re wiser now, and that’s good, but I also find I long for the days when I wore my Cypherpunk Criminal t-shirt for political protest, not out of nostalgia.


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RIAA Blowback

As Slate points out, if you’re one of the more than 4 million people who use the KaZaA network on any given day you’ve a greater chance of being hit by lightning than being one of the 261 people the RIAA just sued. The RIAA’s strategy all along has been cultural: scare people into not sharing, and “educate” the public that file sharing is an evil treat to our society’s very survival. Whether these lawsuits (and the thousands more they plan to file) have a chilling effect will be seen over the next couple months. The battle for our hearts and minds, however, is not going so well for the RIAA.

So far the press has reported on a few members of the seamy file-sharing underworld. One is Brianna LaHara, a 12-year-old Catholic-school honors student who was “on the verge of tears when she found out about this.” Another is Heather McGough, a 23-year-old single mom of two who got KaZaA when a friend of her 14-year-old cousin told her she could “get the Gateway to play songs.” Then there’s Durwood Pickle, a 71-year-old grandfather who says his teen-aged grandchildren use his computer during visits to his home. “I’m not a computer-type person,” Pickle said. “They come in and get on the computer. How do I get out of this? Dadgum it, got to get a lawyer on this.”

Each defendant is potentially liable for fines ranging between $750,000 and $150 million, though of course the RIAA is offering settlements. Brianna’s mom has already accepted a quick settlement, paying $2000.

The reactions of the defendants have varied. Yale University photography professor Timothy Davis said he’ll stop sharing music files immediately. “I’ve been pretending it was going to go away,” Davis told reporters. “I’m not some kind of college student who’s downloaded thousands and thousands of things. It isn’t like I’m trying to broadcast these things anywhere.” Most quoted in the news, however, have expressed frustration. “I can understand why the music industry is upset about this, but the fact that we had access to this as the public, I don’t think gives them the right to sue us. It’s wrong on their part,” said Lisa Schamis, a 26-year-old from New York. Schamis added that she is unemployed and would be unable to pay any large fine or settlement. Her sentiment is shared by defendant Vonnie Basset, a bookkeeper in Redwood City, California. “How are we supposed to know it’s illegal? Half the things on the Internet must be illegal then,” said Ms. Basset, who says her 17-year-old son uses KaZaA. “Why don’t they sue KaZaA? Why are they suing the people? That’s the part I don’t understand.”

Marvin Hooker, a 39-year-old San Francisco bank employee, expressed the philosophy held by many. “To me, the way I see it, I am not taking anything from them,” Mr. Hooker said. He compared downloading music to making a copy of music or a tape for friends. “I don’t see people getting sued because of that,” he said. Sylvia Torres, Brianna LaHara’s Mom, put it more simply: “It’s not like we were doing anything illegal. This is a 12-year-old girl, for crying out loud.”

This is, of course, the exact message the RIAA wants to stamp out. But with such normal, mainstream defendants and such out-of-this-world potential fines, it’s hard not to see the RIAA as the big bully extorting everyday citizens.

Attempts by the RIAA to soften the legal attack have met with a good deal of scorn. One attempt is their Clean Slate amnesty program, whereby the RIAA promises not to sue file-sharers who sign a notarized form admitting to copyright violation and promising never to do it again. But as the Electronic Frontier Foundation points out, the RIAA does not actually own any copyrights and member labels are not bound by any agreement they make. Furthermore, such admissions could be used by other rights holders to prove a sharer was a “willful infringer,” which could lead to prison time.

Universal Music Group has even cut the price of a CD from $18.98 to $12.98, citing falling CD sales and, of course, piracy. Their olive branch to consumers, however, is being seen as too little, too late. Renee Graham, of the Boston Globe, writes:

In other words, after years of gouging customers, the recording industry is desperate. Sparked by Napster, and continued through such file-swapping services as KaZaA, Morpheus, and Grokster, the free-music revolution has left the major labels reeling and hemorrhaging. And CD prices, which despite promises to the contrary have steadily increased through the years, turned off even those who weren’t inclined to sit at their computers downloading their favorite tracks.

In an article for The Register, Ashlee Vance points out that this is the first price cut since the CD format came out in the 1980s. At the time, the fact that CDs were a new format was used as an excuse to raise prices above LPs, with the promise that prices would drop as the new format became mainstream. She also points out that just two months ago a pair of music labels were yet again nailed for price fixing by the Federal Trade Commission.

None of this helps portray the music industry as a poor innocent victim, being picked on by wicked 12-year-old girls. As for the effect on file-sharing, I honestly hope that the RIAA’s jihad has a chilling effect for a while. Each turn of the screw has unleashed new technology, from music webpages, to multimedia search pages, to Napster, to complete peer-to-peer file sharing. I keep hoping for one more forced revision to the technology before the music industry finally gets a clue. But I can guarantee who will win this battle in the end. A Forrester report released a few weeks ago reports that 49% of 12- to 22-year olds downloaded music last month. When it comes to pride, stubbornness and brazen pig-headedness, even the RIAA can’t stand up to the combined will of millions of teenagers.


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BBC Creative Archive

Greg Dyke, director general of the BBC, has a vision. In a speech he gave this Sunday at the Edinburgh International TV Festival he described his plans for how to leverage the huge BBC media library — give it away.

Looking ahead, let me give you one example of the kind of thing the BBC will be able to do in the future.

The BBC probably has the best television library in the world.

For many years we have had an obligation to make our archive available to the public, it was even in the terms of the last charter.

But what have we done about it?

Well, you all know the problem.

Up until now, this huge resource has remained locked up, inaccessible to the public because there hasn’t been an effective mechanism for distribution.

But the digital revolution and broadband are changing all that.

For the first time, there is an easy and affordable way of making this treasure trove of BBC content available to all.

Let me explain with an easy example.

Just imagine your child comes home from school with homework to make a presentation to the class on lions, or dinosaurs, or Argentina or on the industrial revolution.

He or she goes to the nearest broadband connection – in the library, the school or even at home – and logs onto the BBC library.

They search for real moving pictures which would turn their project into an exciting multi-media presentation.

They download them and, hey presto, they are able to use the BBC material in their presentation for free.

Now that is a dream which we will soon be able to turn into reality.

We intend to allow parts of our programmes, where we own the rights, to be available to anyone in the UK to download so long as they don’t use them for commercial purposes.

Under a simple licensing system, we will allow users to adapt BBC content for their own use.

We are calling this the BBC Creative Archive.

When complete, the BBC will have taken a massive step forward in opening our content to all – be they young or old, rich or poor.

But then it’s not really our content – the people of Britain have paid for it and our role should be to help them use it.

The vision and even the project name sounds like a cross between the Creative Commons project, chaired by Lawrence Lessig, and the Internet Archive founded by Brewster Kahle. No surprise then that Slate reports the BBC talked to both Lessig and Kahle before making their plans. In a blog comment, Kahle also acknowledged the visit: “Yes, the BBC crew was brought to the Archive by Larry Lessig and we showed how inexpensive it can be and how we have dealt with the ego’s and restrictions issues that always come up. I dont know what role we played, but their decision is fantastic and hopefully trendsetting… thank you bbc.”

There are a lot of details that haven’t been announced yet. For example, it’s not clear how much of the BBC library the BBC owns free and clear, or at least freely enough that they can redistribute under a new kind of license. Then there’s the inevitable argument from commercial interests that the BBC shouldn’t be allowed to compete with their own online distribution. This kind of argument will probably hold less sway in the U.K. than it would here in the U.S., however, as the British are already comfortable with the idea of a strong government-sponsored media.

There are lots of reasons this is a great move on the part of the BBC. First and most important, the Internet has brought down distribution costs to the point that, as far as gifts to humanity go, this has a lot of bang for the buck. Second, BBC shows are paid for by fees charged to UK television owners, so there’s a good argument that the library is already owned by the British TV-watching public. These are reason enough, but I like to think there’s even an argument that it is in the BBC’s self-interest to share with free-loading yanks like myself. As Dyke says in his speech, Britain’s television reflects its culture, tastes and values. That kind of export can have far-reaching secondary benefits for a nation, from increased tourism to more desire for British goods. Just think of what a great marketing tool Hollywood has been for Levis Jeans. By making BBC News, BBC documentaries or even Absolutely Fabulous easily available to the world at large the British culture may find real economic returns. As The Guardian put it, “if the BBC doesn’t get its media out to as many people as possible, it’s failing its charter requirements.”

Sidenote: It took me a few days to blog about this, and yet it still hasn’t hit the U.S. press. Aside from the Slate article, Google News is turning up almost no coverage outside of the UK press and the blogs. I try to stay away from conspiracy theories (really, I do) but I can’t help but wonder if the silence has anything to do with the battle being raged between the BBC and Rupert Murdoch, or the fact that Murdoch’s media empire stands to lose the most if things like this start to catch on? Why is this a non-story on this side of the pond?

[UPDATE 9/11/2003: Lawrence Lessig has an article in the Financial Times about the BBC Creative Archive.]


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California Supreme Court Rules in DeCSS-posting Case

The California Supreme Court ruled today that trade secret laws can trump first amendment protections, overturning a previous Court of Appeals ruling. The case involves an injunction against Andrew Bunner, a San Francisco man who posted the DeCSS DVD encryption-crack code on his Web site. The injunction, which required Bunner to remove the code, was thrown out by the Court of Appeals on First Amendment grounds. The decision is quite narrow, essentially saying “the First Amendment does not categorically prohibit preliminary injunctions to enjoin the publication of trade secrets” and sends the case back to the Court of Appeals to re-examine the facts of the case.

I’ve read the decision, but rather than subject you to my legal ignorance I’ll defer to people in the know. First, Eugene Volokh blogs some legal concerns about the decision, saying that the court failed to explain how it determines that some speech is a matter of “private concern” (which gets less protection than something of public concern) and why it’s proper for the court to make this decision. He also questions their application of case law, especially as it relates to whether there were alternative channels to express the same speech (Justice Moreno makes a similar point in his concurring opinion).

As to how the case will wind up, Dan Gillmor posts this little gem at his blog:

I’ve had a note from a lawyer involved in the case, Tom Moore of Tomlinson Zisko in Palo Alto. He makes some interesting points. Here’s what he says:

I’m one of Andrew Bunner’s lawyers. While today’s Mercury News Internet article is true as far as it goes, it misses the fun part entirely.

The decision is a triumph of politics over logic. When you read the decision, you can follow the logic: (1) Software implicates the First Amendment; (2) trade secrets law implicates the First Amendment; (3) the proper level of scrutiny is intermediate First Amendment scrutiny; and (4) assuming that everything in the trial court’s order is supported factually, the order survives that level of scrutiny. Then you see where politics comes into play: The next logical step should have been for the Cal. Supreme Court to review the record independently. Instead, the Court sent the case back to the Court of Appeals to review the record to see if the facts were there. It’s not as if the Court could not review the record. Justice Moreno did it and concluded: “the DVD Copy Control Association’s… trade secret claim against Bunner is patently without merit.”

So, the Court did the politically safe thing by dodging the actual facts.

Those of us who work on Mr. Bunner’s behalf are more entertained than disappointed. The Court has given us a lot to work with. Indeed, the more significant decision in this case was the Cal. Supreme Court’s earlier decision, Pavlovich v. Superior Court. In that decision, the Court held that the injunction does not extend into Texas. That means that CSS and DeCSS is a secret in California only. Eventually, the public nature of DeCSS will come to the fore.

The precedents set in this case may be important, but as far as DeCSS is concerned this is all shutting the barn door after the horses have already bolted, caught a steamer and are enjoying their vacation in Tahiti. And I have the t-shirt to prove it.


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No seat at the WIPO table for open source

Back in July, a group of 68 economists, scientists, industry representatives, academics, open-source advocates, consumer advocates and librarians proposed that the World Intellectual Property Organization (WIPO) host a meeting on the use of open collaborative development models. Examples described in the proposal include IETF standards, open-source software such as Apache and Apple’s Darwin OS, the Human Genome Project and open academic journals, among others. The WIPO’s initial response was quite favorable. Dr. Francis Gurry, WIPO Assistant Director and Legal Counsel, was quoted by Nature Magazine as saying “The use of open and collaborative development models for research and innovation is a very important and interesting development… The director-general looks forward with enthusiasm to taking up the invitation to organize a conference to explore the scope and application of these models.”

Needless to say, business interests like Microsoft saw such high-profile acceptance of open source as a threat, and immediately lobbied to have the idea squashed. The Washington Post and National Journal’s Technology Daily report that Lois Boland, the U.S. Patent and Trademark Office Acting Director of International Relations, dismissed the meeting as out of the WIPO’s area, saying the organization is “clearly limited to the protection of intellectual property.” “To have a meeting whose primary objective is to waive or remove those protections seems to go against the mission,” Boland told National Journal. She argued specifically against the discussion of open-source models, claiming that open-source software is not protected under copyright law but only contract law, which is not in the domain of WIPO. She also protested the manner in which the meeting was organized, saying WIPO’s agenda should be driven by member nations and the idea came from outside the organization. Under increasing pressure, WIPO canceled the meeting, saying the polarized political debate made the possibility of international policy discussion “increasingly remote.”

Lawrence Lessig’s blog blasts Boland, saying “If Lois Boland said this, then she should be asked to resign. The level of ignorance built into that statement is astonishing, and the idea that a government official of her level would be so ignorant is an embarrassment.” Personally I think Lessig is missing the broader picture here, or perhaps he is just not cynical enough. Rather than ignorance, Boland is simply showing unusual candor in her statements. Her position is that WIPO should promote international IP laws that support the current content industry, regardless of how that affects new upstart industries, national productivity, the economy or other important concerns. In the words of The Economist, she is being pro-business, but not pro-market. I agree with Lessig that this is abhorrent, but given how the U.S. continues to force brand-new IP protections down the world’s collective throat it seems to be a fair description of current U.S. policy.

The issues described in the proposal to the WIPO are not going to go away, and will eventually need to be addressed with or without the involvement of WIPO. As Ed Black, president of the Computer and Communications Industry Association, said on hearing the meeting was canceled: “Does this indicate that WIPO is abdicating authority and responsibility for these issues, including open source for the future? If so, we will all live by that, but then so must they. They should step up the plate or step aside. … It is inexplicable that they would shut the door on what are clearly important issues.”


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Subpoena Targets Organizing on the Net

I expect the idea seemed simple in the RIAA’s boardroom. First, declare jihad against music sharers everywhere. Then make it known that you would be sending out subpoenas and filing lawsuits against anyone and everyone who copies. “It doesn’t matter who they are” said Cary Sherman, president of the RIAA. No doubt, they must have thought, the 60 million Americans out there who currently share music will get the message and the rest of the country will thank the record companies for getting tough on crime.

Only now the spin-doctoring is getting away from them. First, the Associated Press used information in the subpoenas to locate and interview some of the targets before even the RIAA had received their names. Far from being the poster-children for underworld crime the RIAA would have trotted before the cameras, those interviewed were college students, parents of file-sharers, and even a grandfather who uses file-sharing networks to download hard-to-find recordings of European artists.

Now comes a new hard lesson for the RIAA about life in the Internet age: these hapless individuals are starting to use the Net to organize. First was, a site started in April by the Electronic Frontier Foundation, US Internet Industry Association and other organizations to offer resources to those who wish to defend themselves against the recent torrent of subpoenas. They also host a service where you can enter the handle you use on peer-to-peer networks and see if you might soon be the target for a subpoena. And now a new site called is offering every subpoena recipient their own blog, either signed or anonymous, through which they can let their own story come out. The site, started by volunteers that include MIT Media Lab researchers and programmers who previously worked on the site, is bound to give us the exact perspective the RIAA doesn’t want us to see: just how much those 28% of Americans who share music online look just like the other 72% of us.


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1000 down, 39999000 to go…

The RIAA has been feeling their oats after their victory against Verizon back in April, where the ISP was forced to reveal the names of customers who had been engaging in illegal file-swapping. Since then the RIAA has issued at least 911 subpoenas and expect to file at least several hundred lawsuits in the next few weeks in what can only be described as a “shock and awe” fight for the mindeshare of the average American.

However, more recent demands for user information have been rebuked. Last week MIT and Boston College both challenged subpoenas for user identification on their networks on two points. First, the demands that come under the DMCA are in conflict with the Family Education Rights and Privacy Act, which prohibits colleges from giving personal information without first informing the student. Second, they charge that the RIAA should have filed its subpoenas in Massachusetts instead of Washington, DC. And now Pacific Bell Internet Services is challenging more than 200 subpoenas on the same grounds: that they violate their user’s privacy and that they should have been filed in California, not Washington, DC.

The RIAA is correct in claiming that these challenges are only on procedural grounds, though already the RIAA’s shotgun approach has drawn the ire of Senator Norm Coleman, R-Minn., who chairs the Senate Permanent Subcommittee on Investigations. Another point I haven’t seen brought up in the news is that this “procedural challenge” could force the RIAA to change the venue in which its subpoenas are filed away from the court where their original Verizon case was won. (I’ll leave the analysis about whether that matters to someone with the necessary legal knowledge.)

Of course, the real battle is still for the hearts and minds of the American public. The RIAA could care less about the hundreds of college students and little-old-ladies they’re trying to sue for millions of dollars each, what’s important is the millions of Americans who think that sharing music is OK. And on that front they have more bad news: a recent survey from the Pew Internet & American Life Project reports that 67 percent of Internet users who download music say they don’t care about whether the music is copyrighted. If you accept the Ipsos/Reid finding that one quarter of Americans have downloaded music, that comes down to about 40 million Americans who have downloaded music and don’t care. And that, my friends, is a lot of subpoenas.


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We control the horizontal…

I can hear it now:

Exec #1: “Members of the Word Media Cartel, we are against the ropes. We’ve tried imposing draconian penalties for even trivial piracy. We performed a perfect end-run around the fair use doctrine with the Digital Millennium Copyright Act. We’ve sued into bankruptcy anyone who might have a business model more survivable than our own. We’ve even sued down-and-out college students for $97.8 trillion dollars each, as an example to others who would stand in our way. And yet the peer-to-peer networks continue to thrive.”

Exec #2: “If only our industry had a way to convince people that piracy was wrong. You know, change how people think about copying music and movies.”

Exec #1: “Yes, yes, but there’s no point in wishing for… hey wait, say that again!”

And so it came to pass: the Motion Picture Association of America launched an unprecedented media blitz to convince the American public that by using Gnutella you hurt not just Disney stock-holders, but also Jerry, the man who fetches coffee for George Lucas every morning at 5am.

The sheer power of this blitz is daunting. The kickoff this Thursday will have thirty-five network and cable outlets all showing the same 30-second spot in the first prime-time break (a “roadblock” in ad-biz terms). Then every major theater in the country will play daily trailers on all screens in more than 5,000 theaters. Whew. And all that time is donated, which would be incredibly impressive if the spots weren’t essentially being donated to themselves.

And now the $97.8 trillion-dollar question: is the American people so pliable that their morality can be changed by a media blitz? (Could that be the manic laughter of of thousands of ad executives I hear in the distance?)


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DVR Manufacturers Capitulate

The Associated Press has an overview piece on how the makers of digital video recorders are capitulating to (excuse me, “voluntarily cooperating with”) Hollywood and other members of the Content Cartel. Not too surprising given the shots fired through the bow of Sonicblue (makers of ReplayTV), forcing them into bankruptcy after paying millions in legal fees. In line with the rest of the industry, ReplayTV’s new owners say they will be good little boys and remove the ability to auto-skip commercials or send recorded programs over the Internet to other Replay users.

In the short run this means consumers get fewer features, but in the long run it’s just more sand thrown against the tide. DVRs are just commodity hardware, some standard drivers and a little bit of interface software. If UltimateTV, TiVo or ReplayTV doesn’t provide the features people want then a whole host of small manufacturers, kit makers and do-it-yourself modification kits are all more than willing to fill the gap.

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