Lessig on Streamcast/Grokster Decision

scubacuda writes "Lessig has an editorial in Financial Times regarding the recent court decision in favor Streamcast (which distributes "Morpheus") and Grokster. 'The wisdom of this rule is something innovators in Silicon Valley are increasingly coming to see. When courts intervene to maintain copyright's balance, the inevitable consequence is that innovation is harmed. If every innovator with technologies affecting content must bear the burden of a lawsuit before his innovation can be allowed, there will be many fewer innovations in the distribution and creation of content. That in turn will harm artists and technologists alike. Better to let the innovation happen, and then consider whether the change caused by the innovation is so significant as to require new legislation by the legislature.'"

Comments

A rider is needed???

[jkrise]

"Better to let the innovation happen, and then consider whether the change caused by the innovation is so significant as to require new legislation by the legislature."

What about the innovations of monopolies? By the time the changes caused are considered and legislated, it may be too late.

Re:A rider is needed???

[pauljlucas]

[Microsoft has] done a lot of good for innovation. By developing and supporting a common platform (the Win32 API), they have allowed for tons of innovation in software.

Such as? Microsoft has retarded computer, software, and operating systems for decades. As the market dominant player, they could have developed a robust OS that didn't crash decades ago. (Unix existed, doesn't crash: therefore, it could have been done.) They could have pushed the industry forward with their money, resources, and research. But instead they allowed the "Blue screen of death" to become a house-hold phrase. Know why? Because they could and people were still buying their crap. They saved tons of money not making their OS better.

Indeed, most non-geek computer users truly believe that computers aren't reliable because they crash a lot. Put such people in front of a Unix machine (a Mac running OS X is the best example), and you get an astonished response: "It doesn't crash!"

Microsoft doesn't innovate. They don't have to. They can sit on their collective fat asses and rake in the money because, in many environments, consumers have no choice. It's only external pressures (Apple and Mac OS X, Linux, etc) that force Microsoft to "innovate" which really means ripping off what's already been done.

sounds familiar

[Anonymous Coward]

Kinda like "innocent until proven guilty". Right?

DMCA - Another Attack

[Pavan_Gupta]

Interestingly enough, I do feel that innovation is what is truly being attacked when the DMCA "hammer" (or war drums) are beat upon all the time.

On another note, and one seldomly discussed ... it's obvious that there is a problem here. We want more content, but when we steal it, the companies we love and hate so much won't be as willing to give it. Hence Palladium, DRM, etc.

If people could throttle themselves, the problems that we have with content distribution wouldn't be problems at all. Sadly, we can't, so legislation is absolutely neccessary in throttling all those people that can't throttle themselves.

That delicate balance between the rights of the societ and the rights of the owner of the content is dynamically changing, but it is definitely true that technology has given society the ability to very easily steal from the owner of copyrighted material.

Everyone is to blaim. The RIAA, MPAA, Microsoft (in some cases), etc. are hardly in the 21st century. Sometimes I wonder why they complain so much since it's obvious that they should try to start a better music distrubtion model than what they already have. Sometimes sacraficing profits for common sense is a smart thing. We're also to blaim. People using Grokster, Kazaa, Morpheus, Gnutella2, etc. are thieves (for the most part). The last time I found a nice piece of uncopyrighted material on kazaa and not on Google was .. never.

At any rate, it's a mess out there. The RIAA and MPAA are definitely stupid. They're planning on waging war with their entire customer base (or a large part of it). I'm not bussiness guru, but I definitely see a problem with that.

Anyway, I feel like I'm rambling now. People should buy their stuff, and big companies need to take their heads out of their rear ends, and realize that their is money to be made where the biggest battles are being waged.

Re:DMCA - Another Attack

[aborchers]

Well said. Content owners and Congress would not be wasting their time on these efforts if it weren't for thousands/millions of users infringing their copyrights.

I will now save people the trouble and typing and list the inevitable replies to this post.

• It's not stealing, it's copyright infringement. Sec 107, blah blah blah
  
• I will buy their stuff when they stop putting the one good track I want on a $20 cd with 9 other bad songs, blah blah blah
  
• Ahhh! You mispelled society! blah blah blah
  

Any I'm forgetting any? :-)

Re:DMCA - Another Attack

[ichimunki]

Yes, you forgot to somehow work in an intelligent discussion of Fair Use. Most of the copyright activity you're seeing isn't intended to clamp down on "piracy" (which really could be considered "free advertising" in many cases), it's intended to restrict Fair Use. One of the primary activities outlawed by the DMCA is, in fact, Fair Use. Many of the DRM schemes being floated will obliterate what's left of the right of first sale (which doctrine actually enshrines the right of a buyer to resell a good).

Some things you could have mentioned if you weren't simply trying to be glib would have been the lawsuit filed against the publishers of "The Wind Done Gone", a work which was for a time prevented from dissemination due to concerns over "copyright infringement". Apparently it was not "fair" enough to write a literary criticism that worked well as a reworking of the original novel using the technique of parody.

You might also have mentioned the growing terms available to copyright holders. The public domain has effectively been squelched. If the pattern of lengthening the "limited term" of copyright and applying that lengthened term retroactively is not stopped, we will never get another new work in the public domain. After a while this means that our shared cultural background will be solely owned by corporate interests. If the original terms of copyright were still in effect, we could be enjoying a renaissance of remakes of older films and stories from the last century.

As it is, it's barely possible to make a film in which another copyrighted work appears, let alone actually retell the story from some other work. Shakespeare's plays are redone all the time, some with only the barest resemblance to the original... but no one argues that the makers of those works are simply plagiarists and pirates. In fact, often those redoing Shakespeare's plays belong to the same industry pushing for expansions on its ability to prevent others from doing anything similar with their own works.

Is copyright promoting innovations and cultural discourse, or preventing it? Is "piracy" really harming the industry? You forgot to ask those questions. I suggest you look at the revenue numbers coming out of Hollywood and then ask yourself whether online trading is hurting the movies. Look at the RIAA's numbers for revenues. Sure they claim losses due to "piracy", but those are made up numbers. Yes, their revenues and sales are down. But so is tourism and a lot of other consumer activity. Additionally the RIAA's been releasing less new stuff to buy.

So it would seem that you forgot to back up your assertion that copyright infringment is really the reason these lobbies are working so hard of late. In fact, it sounds to me like they're much less concerned with existing infringments than they are with expanding the definition of infringment.

Anything I forgot? :)

Copyrights and wrongs

[locarecords.com]

The problem is that the balance between copyright holder and user has become weighed down in legislation that is becoming increasingly technologised. So instead of broad rules that can be interpreted by the judges (and software developers) it seems that the rules are instead being read and written far too literally.

Good fences make good neighbours and the problems at the moment are certainly due to the nature of the business cycle in technology. Once case law has been built up significantly it will be clearer what the risks and responsibilities of innovation and law are.

Personally I think that the courts are the place to argue out the rules of innovation as if you believe in the idea strongly enough then you will be willing to fight, or raise finance to do so. If this forms part of your business proposal then that is right and good. Business decisions are implicitly risky and this will have to be bourne in mind.

However this is with the caveat that copyright should be limited and the public domain requires legislation to prevent unlimited monopoly of ideas for all time...

Re:Copyrights and wrongs

[stubear]

I agree with much of what you said except for this, "unlimited monopoly of ideas for all time..." Copyright does not protect ideas, it only protects the expression of ideas. That is why, as a creative person, I find it hard to believe the public domain have been so irreparably harmed. One could still create a cartoon character of a mouse and his adventures with other animal friends but the minute they give their mouse red shorts, yellow shoes and white gloves and call him Mickey, they have crossed the line from the idea (a cartoon mouse) to the expression of that idea (Mickey Mouse) which is protected by copyright. Abolish the DMCA, copyright laws will still exost, there is no victory there. Even if copyright went back to the original 14+14 year term and extension, much of what is on P2P networks and streets through Eastrern Europe and the Far East is still illegal. Lessigs fight, whether he knows it or not (and more's the pity if he doesn't) is more about getting stuff for free than it is for somehow protecting the public domain from copyright extensions.

Re:Copyrights and wrongs

[locarecords.com]

I think you make a very good point. However the line between idea and expression of idea is being blurred by the large multinational copyright holders. And who can blame them..

So there are many cases where people are being sued under copyright law just as a scare tactic because the copyright law allows them to defend their copyright. Additionally this closes down the potential for reuse, parody and so forth and an extra avenue for expression.

I think the public domain should be viewed as a sphere of original artistic creations that are now free for all to deconstruct, reuse and play with. That is a wonderful creative resource... and the over zeaous protection of unlimited copyright stops that from happening...

Re:Copyrights and wrongs

[joak]

Personally I think that the courts are the place to argue out the rules of innovation as if you believe in the idea strongly enough then you will be willing to fight, or raise finance to do so. If this forms part of your business proposal then that is right and good. Business decisions are implicitly risky and this will have to be bourne in mind.

The problem is this puts an immense barrier in front of new ideas. If their legality is not clear, and a lawsuit costs hundreds of thousands of dollars to fight (and potentially far more if you lose), the only ideas you'll see tried are ones that are likely to make the innovator millions. What happens to experimentation with novel ideas, ones which you have no confidence up front will work? Should they just be abandoned?

Clarity in the law, so people know what they can try, is far preferable to a patchwork of court decisions.

Re:Copyrights and wrongs

[seaan]

Copyright does not protect ideas, it only protects the expression of ideas.

In theory Copyright only protects the expression, not the ideas behind the expression. The big exception, at least in my opinion, is the concept of derivative control. There are two main areas where this comes up - translations and sequels. These concepts have been introduced into US copyright law over the last 100 years, and have grown progressively stronger.

The case for granting copyright holders protection against translation is stronger than sequel protection. In the 19th century authors did not even have language translation protection - a book written in English could be translated into another language and sold without the copyright holders permission. Another common form of translation is making a movie based on a book (from memory this protection was added in 1914). From a high level, I think these added copyright protections are beneficial to authors and may even provide a net benefit to society.

The problem is that we are no longer protecting the expression, rather the ideas behind the expression. This is a fuzzy area, and unfortunately the current laws have expanded the power of copyright holders well into idea protection. Lets look more closely at the idea of translating a book into a movie. Almost no movie is a literal translation of book; and as we all gripe from time to time sometimes the movie has almost no resemblance to the book.

Take the example of a movie that is very loosely based on a book. All they share is ideas of plot and character personalities. They have no common "expression" (such as a movie character who speaks something written in the book). Why should the book author have control over the movie under these circumstances? Would it make any difference to your feelings if the book and movie used the same title? How about the same names for characters and locations? Everything here (except the titles and names) are ideas, not expressions; yet our current copyright laws give the copyright holder control over them.

The current laws even provide sequel protection, where the copyright holders can control who uses the ideas of the "world" they have created. So even if the story share no plot elements or main characters; the copyright holders can control how the world is used. At this point we have reached a point, that in my opinion, where the copyright laws have become very unbalanced. It allows some entrenched copyright holders to rope-off ideas, and causes a negative impact to culture.

I can already hear certain people saying "come up with your own ideas", and there are a couple of problems with this approach. The first is that there are only so many ideas; perhaps the best example is the "4-note" protection of songs where in theory no composer should have more than 3 notes of "substantial similarity" between what they are writing and any song under copyright (if this was truly enforced by all copyright holders, song writing would become a rare art indeed). The second is that protection of ideas is not good for society, indeed the interaction of expanding upon ideas is at the heart of creation.

Consider a range actions, all of which might be called sequels: 1) While watching a movie I wonder what if "x" made a different decision, 2) Some friends and I talk about the "x" decision, 3) Some friends and I talk about this on a public discussion group, 4) A group of friends decide to act out the situation to further explore how the decision effected things, 5) I write a paper/story about this decision, 6) I sell the paper, 7) I write a modeling program with decision trees based on that situation (some might call this a game), 8) I sell this program.

Now all of these actions are ideas, yet only (1) and (2) are clearly permitted by copyright law. The public discussion (3) will mostly be permitted under fair use, but there are legal cases where disscusions have been ruled illegal (usually when the information that started the dicussio

Re:Copyrights and wrongs

[seaan]

I'll concede your point about the public domain not shrinking, but you can't claim it is expanding either. Once material from 1923+ starts expiring, than I'll let you get away with "not expanding as quickly" :-) I hope congress took enough notice about the Eldritch case to stop them from lengthening the term again, but I remain pessimistic.

As for creativity, I attended a liberal arts college with emphasis in Journalism and Theater (my major was computer science). I've taken a graduate seminar in law for Computer Professionals, as well as management and ERT law classes. I've read and discussed copyright law extensively (it has been something of a soapbox for about 3 years now).

I think I understand your point about plagiarism, but depending upon your actual definition that does not negate what I'm saying. For example, if an author were to write a story set in the Star Trek universe, but with original characters and plot lines - would you call that plagiarism? According the current copyright law this most likely would be copyright infringement. I claim that this is an excessive amount of protection, and that in most cases the author probably did nothing morally wrong. Multiply that by a lot of people, and most of the writing will not be great works of art, but will there be a different percentage of "goodness" between borrowed settings and the [theoretically] totally original story?

Now go back and re-read the example, substituting "student" instead of "author". Does this action by a student make a difference in how you feel about it? Why is it OK to infringe copyright for learning, but not for commercial sale? When I read to my toddler, occasionally he likes to make up alternative plots or wordings to his favorite stories (something I highly encourage). Yet if I were to record these alternative versions (even if I did not sell them), I am technically in violation of copyright.

----
Here are a couple of further explanations about points made in earlier posts. Perhaps this concept of setting needs an example: say I wanted to tell a "tall tale" about a lumberjack. The stories about Paul Bunion instantly set a mood, and if I decide to attribute one more story to that classic hero, I might perhaps be able to write a story more elegantly because of the cultural assumptions that come with him. This is actually an amusing example, because "Paul" was made up for advertising, and most of the stories are based on folk tales that have been told about other people in other settings. So lets say "Paul" is still in copyright (I seem to recall that it dates from 1910 or so, so it probably is not) - does my use of him constitute plagiarism, or is it morally wrong? I don't think so personally. Would my story have been better if I did not start out with a stock character? Maybe, maybe not - I don't think there is a definitive answer.

Also I wanted to explain what I think is proper "Sequel" protection: trademarks! Active trademarks don't expire, and they help consumers determine who produced the work. There may be a lot of "hacks" out there, but trademarks will help people determine who to trust. A good example is often talked about with the potential expiration of Mickey Mouse. Personally I don't think Disney has done that great of a job with him recently, but lets say that some people highly value the "official" Disney Mickey Mouse stories. When versions of Mickey enter the public domain, and anybody can incorporate him into their work, the customers can still rely upon Disney trademarks.

Once again, the content is the problem

[192939495969798999]

Consumers are not stupid, they all realize that:
1) buying an album without hearing the songs on it is really foolish.
2) most bands these days have one or two really well produced songs ("singles") and then a slew of filler songs on a record.
People will buy a good album, as Eminem's or any other platinum artist's sales will show you. Before technology like Napster, I never would have bought many albums that I own, because there was no other way to hear the songs. Napster was music on demand. Granted, letting people have the files probably hurt the incomes of bands whose older material is far better than their newer material (Metallica, etc). Of course people are going to steal the good songs! If bands put out enough good songs on their records, people will buy the record because it's easier than hunting for and downloading all the songs. Technology doesn't beget theft, it just shows the true value of the data it is transmitting.

Re:Once again, the content is the problem

[thynk]

People will buy a good album, as Eminem's

I never thought I'd see the day when I saw the words good album and Eminem used in the same sentence! I forget, is he the blue one or the yellow one?

Aside from that, I agree. The blame lays only partly with the P2P file trading. The majority of it is most of the stuff they put out is crap.

The music industy as a whole will evolve, but with any significant evolution, it will be painful and there will be a great deal of reisistance at all steps. Apple has the right idea, and if (when) this model comes around to PCs, I'll support it - presuming that the artists make a fair profit off their work. I've never had a problem paying for good music.

How come the pr0n industy doesn't complain about P2P downloads?

Newspapers

[BJZQ8]

I can imagine what the RIAA/MPAA would think if we were today debating the freedom of the press. After all, newspapers can be used to STEAL copyrighted works! This must be stopped! It's not the messenger, it's the message. So maybe Napster/Grokster/Morpheus are mostly used for infringing...but they in themselves are not infringing anything. If I make a telephone call to get my gang together to conduct a bank robbery, the law doesn't hold the phone company liable. I know about common-carrier laws, but this is a good comparison. It's the message, not the messenger.

Those filthy filthy thieves...

[Anonymous Coward]

Actually, just trying to head off at the pass the silly ignorant posts that do one or more of the following:

call downloaders thieves

call downloading or copying theft or stealing.

Copyright infringement is never theft; it does not meet the definition of theft, especially the part about "taking" (if you create a new copy of an item, you are not taking the item).

The argument "you are depriving artists of money" argument does not wash either, due to the fact that many, if not most, instances of copyright infringement involve situations where the copier would not have paid the artist in the first place.

In the cases of bootlegs, mashes, or out of print songs being downloaded off p2p networks, there is never a loss of money to the company and artist: they refuse to sell the material in the first place!

The connection to the artist's money is tenuous at best. If a copier is a "thief", then so is anyone who protests a business. In both examples, no actual theft takes place, but there is sometimes a loss of money to a business.

It may be a crime, but it is not theft.

Re:Those filthy filthy thieves...

[notasheep]

"Copyright infringement is never theft; it does not meet the definition of theft, especially the part about "taking" (if you create a new copy of an item, you are not taking the item)."

This is just a semantics game. I guess there's no such thing as "identity theft" either? People use the word "theft" in a lot of ways that don't synch with a strict legal definition, but other people tend to understand what them mean. For example, if someone came in to your yard and took all of the apples off of your tree you'd probably say someone stole your apples. But, legally, you'd be wrong because the apples aren't personal property while they're on the tree. But, you know, I'd understand what you were saying.

"The argument "you are depriving artists of money" argument does not wash either, due to the fact that many, if not most, instances of copyright infringement involve situations where the copier would not have paid the artist in the first place."

This is utterly ridiculous as a justification for commiting an illegal act. So...you don't think it's wrong to obtain valuable research without paying for it because the price isn't to your liking? While you're at it, why dont' you just take a copy of that struggling consultant's work as well - wouldn't want to pay for it, would you? Here's a clue for for, the value of something is largely determined by the control of its distribution.

"The connection to the artist's money is tenuous at best. If a copier is a "thief", then so is anyone who protests a business."

Yes, you're right. If your protest includes trying to control access to the store, among other things, then you are committing a crime.

Not very far from truth

[A nonymous Coward]

Hilary Rosen of the MPAA, I believe, gave a speech lamenting libraries, of all things, because they loaned materials out without any payment required.

Re:So the music industry dies. Who cares?

[viking099]

Actually, what will happen is artists will probably become service providers. Nothing can replace the feel and tone of live music in a restraunt or on the street. One of my greatest memories of a past vacation is of a guy wailing on a sax in the middle of the night.
That type of thing couldn't have been duplicated by a couple of kids playing some music on a boom box.
Even though all I have left of the experience is a memory (and a log in my travel diary), I gave the guy 2GBP. It was not a lot, but it was the least I could do to tell him how much I appreciated his talent.
So I can see how the gift of music will be returned to live performances, and become more of a service industry than a product-driven industry.
There will always be a market for means by which people can take music with them. I'm just hoping that the music will return to being primary reason to buy it, rather than the CD being the primary reason to make music.

So certain are you?

[Joe the Lesser]

I, for one, won't accept this logic.

Premise: Things fall to the Earth.

Counter-argument: Clouds don't.

Conclusion: Things don't fall to the Earth.

Re:Apple service isn't there yet.

[TrollBridge]

Funny thing is that if Microsoft introduced a similar service (with same features/limitations) for us on the PC side, the froth glands would be churning it up in overdrive.

Re:I like Ian Clarke's idea

[mudpup]

An Ashcroft quote is funny until you realize; that Ashcroft is a part of the Bush team; that is raping the American Constitution. The head of a legal team that looks the other way while big business robs the public.

Re:DMCA NOT Limiting Innovation!

[Abm0raz]

I disagree slightly with your premise. I don't feel that Apple has debunked any 'myths' about the DMCA. What Apple has done is what the big 5 and the RIAA (and for that matter, the MPAA) have refused to attempt in a truly marketable way, and that is "When life gives you lemons, make lemonade."

Apple looked and said, "We have this great new electronic distribution method for releasing media. PRO: It's extremely low cost, popular, and we can make money off of it by providing a low cost alternative to our target audience. CON: Copyrighting LAWS make it a gray area and difficult to impliment. Solution: iTunes"

This is where the others have failed. They have tried to either squash the technology, or have provided subscription services that are more expensive than the actual cost of purchasing CDs and ripping them yourself. Even worse, most of these services worked more on a rental system and only allowed you to keep the music as long as you were still a member. This is a business model doomed to fail from the start.

Apple's true lesson here is that those that refuse to grow, adapt, and evolve will eventually find themselves dying out and becoming extict."

Change or die.

-Ab

God Help us all

[anthropomorphized]

from Lessig's editorial

no doubt Sony could have designed the VCR to disable the ability of users to record shows from the air. But whether Sony should have been so required was a decision for Congress

I admire Lessig immensely, and maybe I am reading this wrong, but it seems that he is implying it is a GOOD thing to let Congress decide what uses of p2p should exist. Maybe that is actually better than outright judicial control (it is theoretically easier to change congressional legislation than stare decisis), but I have NO FAITH in Congress to consider the people over the millions of $$$ being thrown at them by the media industry.

I believe that the recent decision is a step in the right direction, but I can't help but wonder if this is taking p2p out of the frying pan and into the fire.

Re:God Help us all

[anthropomorphized]

One incorruptible leader who is not influenced by evil outside forces such as the views of people (who have many stupid ideas) or business or elections.

Right.... our 535 democratically elected leaders are completely incorruptible. There is no money in washington. big business certainly doesn't have undue influence. Soft money is constitutional (which it probaly is).

My point, is that Congress deciding the issue does NOT provide me with much comfort. Generally I am more inclined to trust the bench. However for some reason they only recently have begun to understand the technological social issues before them.

It all comes down to the vision of property rights

[StillNeedMoreCoffee]

Lets be clear first that not everyone agrees on what intellectual property is, or how long it exists. Different countries, different times have had different takes on this kind of property. IP is owned for a time then goes into the public domain. That time was lengthened by congress essentially so Disney would not loose control of Steamboat Willy. The time was lengthened for the rights to be held on this "image" for 99 years I believe, up from what 17 years or 20 years passed the creators death, whatever.

The Electromagnetic spectrum used to be public domain. Now it is illegal to listen into certain frequencies. Talk about a human construction. Ham radio's in this country can't be sold if they can tune in frequencies that they should not.

It comes down to business and allowing people to have a monopoy for a time on some business they can profit from. They have lobbied in the governments for that right and have recieved laws to protect those monopolies. But it is a human construction and is not universal. There are peoples that still believe that no one owns land.

When the trains came in the covered wagon's place was jeapordized. Automobiles caused the horse industry to collapse. When IC's came in, the Japanese transistor radio industry collapsed overnight.

The Internet has come and we see the frantic attempts by entrenched businesses to hold on to the value of their property, to not change. But I think the bucket has too many holes in it. The recording industry may change its focus to the live concert industry. That at least is a tangible controllable poperty they have. Bands may have to get off they duffs and tour more. Prices may have to go up. Venues may have to get larger, if these captains of industry want to maintain their current level of riches. ....or duck tape.