The New York attorney general, Eliot Spitzer, is investigating whether the four record companies that dominate the industry have violated antitrust laws in the pricing of songs that are sold by Internet music services, according to people involved in the inquiry.
Mr. Spitzer's office recently began serving subpoenas on the major record companies - the Universal Music Group, a unit of Vivendi Universal; Sony BMG Music Entertainment, a joint venture of Sony and Bertelsmann; the EMI Group; and the Warner Music Group, according to people involved.
Warner Music disclosed yesterday in a regulatory filing that it had received a subpoena on Tuesday in connection with "an industrywide investigation" into whether the companies colluded in the pricing of music downloads.
Representatives for Warner and Sony BMG said their companies would cooperate with the investigation. Representatives for the other major companies could not be reached or declined to comment.
Granted but that wasn't really the point of my posting the article.
As more and more advanced (and expensive) technologies are available for veterinary care, the "willingness to pay" that these actions reveal is used to argue that pets have greater and greater *market* value.
25 years ago, if you ran over someone's pet, you apologized, and possibly helped to replace the animal. Today, you run a serious risk of being sued for serious money. Moreoever, this technology adds a whole new meaning to "replacing" the pet -- and you (or your insurance company) might end up footing the bill!
While there's lots of gasping about the price tag, there's no question that there are customers out there. See Burkhart Bilger's The Last Meow -- and no, it's not a joke article!
"We're looking at spending a thousand dollars in the next twenty-four hours and between three and four thousand in the next week," Langston told Levering. If the dialysis was successful, Lady would have to be transferred to the University of Pennsylvania, where her condition was first diagnosed. (The university's veterinary hospital didn't yet have a dialysis unit, but its vets were more experienced in performing transplants, and Lady was a high-risk patient.) The total cost would be more than fifteen thousand
dollars.
Levering sighed and shook his head. Lady was already anemic, asthmatic, and congenitally blind. She had been born on the streets of Wilmington four years earlier, and dropped at a local animal clinic at the age of six months. Soon after Levering and his wife adopted her, she became allergic to her own tooth enamel. "That was a weird thing," Levering said. "Never heard of that before." But he had willingly paid four hundred dollars to have all her teeth pulled. In retrospect, it seemed like a bargain.
"I don't know. If it was up to me, I might not go through with it," he said. He was recovering from a bout of Lyme disease and from carpal tunnel syndrome, and he had recently had sinus surgery. His wife had been laid up for three years with back injuries, and was only now going back to work. If they were willing to go this far for a cat, it was partly out of a sense of shared misfortune. But mostly it was a matter of love. "My wife is totally wiped out about this," he said.
Acacia's licensing efforts are based on five patents, all of which cover basically the same thing: patents #5,253,275, #5,550,863 and #6,002,720 are "open continuations" of patent #5,132,992, an "Audio and Video Receiving and Transmission System," which was issued in July 1992. The fifth patent, #6,144, 702, is described as a "division" of the '992 patent and was approved in November of 2000.
The '992 patent abstract reads as follows: "A system of distributing video and/or audio information employs digital signal processing to achieve high rates of data compression. The compressed and encoded audio and/or video information is sent over standard telephone, cable or satellite broadcast channels to a receiver specified by a subscriber of the service, preferably in less than real time, for later playback and optional recording on standard audio and/or video tape."
Other sources (MSNBC) have already pointed out that the motives ascribed to the record companies in this article are just not there. Rather, it was a screw-up in their allocation scheme
But when the first shipments began arriving last week, some librarians suspected that the companies -- the Bertelsmann Music Group, EMI Music Distribution, Warner-Elektra-Atlantic, Warner Music Group and Sony Music Entertainment -- were dumping CDs that had been gathering dust in warehouses when they received hundreds of copies of some titles for which there is little or no demand.
The good news is that the mystery has been solved and the source of the overabundance has been determined to be nothing more sinister than a computer-programming glitch that will soon be fixed, law enforcement officials say.
The bad news is that libraries that were among the first to receive their free CDs are now going to have to figure out what to do with all the duplicates.
Okay, I'm completely boggled now . . . what exactly are they're trying to accomplish?
DRM is part of a process to break us of the nasty habit of thinking culture is a common good. Like a speed bump, it's not about making us stop; it's about making us recognize that someone thinks what we're doing is wrong. And then using our own naïvité to get us to stop. (Furdlog posting)
Look, we already do a fabulous job at recycling automobiles. Over 75% by weight is recovered, either as parts to be reused or material to be refined and used. We did this, moreover, not because of any specific environmental mandate, but because it was economically advantageous to do so.
US automakers are sweating it today because the European Union, in adopting a German political initiative of the early 1990s, has mandated that automakers increase the recycling of automobiles, with targets of 80% to 95%, depending on how you read the regulation (recycled versus recovered).
However you look at it, the mandate is a sop to the environmental lobbies that fails to consider the real environmental effects of automobiles. Consider this: by defining the recycling targets in terms of mass percentages, the automobile industry has been incentivized to increase automobile mass, since there is a significant fraction of the vehicle that cannot be economically recycled. (Note: in the end, everything is recyclable - it's just that it gets expensive to do so; remember, it all started as rocks, petroleum, etc.)
So, even though we might want to increase the fuel economy of an automobile (something that starts with reducing the weight of the car), these recycling mandates point the automakers in the other direction!!
If you want to read some specifics, check these out:
After some time the PTB settle on a concept called copyright. Which was ok at the time, presses were still relatively rare and pricey, and it helped apease the small number of authors and scribes who were upset. But more importantly it allowed the PTB to control to some extent the dispersal of information.
Bzzzt! Sorry, this is not the history of copyright. Copyright was constructed by the British to break the power of the printing industry (the Stationers Guild), who had complete control over publishing. While this control was originally given to the Guild to achieve, as you describe, control over distribution (limiting seditious and sacreligious text), the British recognized that such control was counter-productive, both in terms of incentive to create and in terms of supporting the public domain as a common locus of raw materials for new innovation.
However, you are correct that copyright is a made up concept, created specifically to provide short term incentives for open dissemination of new ideas and long term incentives to enhance the public domain. What it is not is a natural right; societies created it to achieve a policy objective.
And therein lies the current problem. Berman purposely conflates copyright with property rights to confuse you into thinking that protection is necessary in the face of technological change. This is strong rhetorically [i.e., it "plays in Peoria"], even though it is, in fact, counterproductive to the policy objectives underlying copyright's construction.
And, in this climate, the rhetoric can lead to dangerous laws like this one actually getting passed, legislating the crippling of digital devices in order to maintain a false premise - that copyright is a property right.
And, if you don't believe that the government won't pass a law to cripple a technology, ask youself this: whatever happened to consumer digital audio tape recorders anyway???
Too bad the trolls have come out in force for this. Speaking as an attendee, it was a great conference for anyone interested in the direction of the Internet. Sadly, those posters who seem baffled by the notion that the law matters in this area are probably those who fail to understand that the law evolves in response to social needs - and the extent to which the Internet is something that you use means that the law will emerge to shape that environment. You can either participate in that shaping, or you can stick your head in the sand (or put your fingers in your ears and yell LA-LA-LA). If you choose the latter, don't complain when you suddenly find that
Only Palladium/DRM capable/compliant hardware is for sale
You have to pay each time you open Microsoft Word, or boot your computer, or open an MP3
Your domain name is taken from you because of a nasty e-mail you wrote or because your WWW page was offensive to someone, somewhere
Every ISP you can afford to use monitors all of your WWW traffic, screens your e-mail and blocks your Gnutella port
You can't use e-mail until you are positively identified via a thumbprint/retina scan/ID card
And every time you try to circumvent these and like restrictions, every resource of the Internet is employed to track you down, hunt you out, and collect the evidence in your eventual trial for conspiracy to commit any number of felonies.
Do I sound paranoid? Maybe, but the fact is, these things are part of the debate - today! Hollings, Berman and others are working on it, and there is already enough legislation (DMCA, PATRIOT) to get you. And it's not just a US thing - international treaties are being signed and revised.
So, wake up! This stuff matters! And it's beyond parties - this is going to hit you where you live!
Piracy is already illegal. How does adding a new law improve anything? If Congress really wants to look like they're doing something useful, they need to take a look at all the existing laws that are 1) stupid, 2) caused more harm than good, and 3) pork, and repeal them.
This is certainly the right answer, albeit not to the question posed. However, it probably implies the correct question, which is what can be done to deal with the morass that copyright has become? There are a couple of questions that Congress really should be addressing:
What is copyright for? Is it about rewarding creators or enriching the public domain? Something else? Or, if both these things, how to maintain a working balance between the two?
What is it that distinguishes digital media from other media? Is it the quality of the content, or the ease with which it can be produced/copied/distributed? Again, what is the appropriate balance between the losses associated with copying against the economic advantages of digitial distribution?
What is piracy? Is it making copies? Using them? Distributing them? Selling them? Buying them?
What to say about Intellectual Property and the National Information Infrastructure? Are the findings really a basis for legislation, especially the doctrine that the digital object generated on a local machine in the course of a networked transaction (e.g., looking at a WWW page) constitutes a "copy" under the copyright law?
The key legislative need is clarification of the government's position, rather than relying upon the courts to thrash this out. CBDTPA's flaws are deeper than the content providers vs. computer industry conflict, and patching it will only slow the development of the clarity needed to go forward.
While this is a happy moment for common sense, this is just going to play into the hands of the CBDTPA supporters. The arugment will be that, given that piracy is rampant, the economics of prosecuting each and every infringer is overwhelming. The more economically efficient solution is to impose a technological lock on hardware to block such economic losses
We still need to get the argument away from the question of copyright infringement and onto the subject of copyright itself - why it exists, who and what it is supposed to protect, etc. This is not easy, but the public policy debate is misdirected now and we have to get it changed. Otherwise, this is going to just make things easier for Hollings
As has already been cited, these FoxNews postings (see also Ken Layne's Music Fans Must Rebel Against Greedy Record Industry ) represent the beginnings of a test by the Republican Party to make Napster a "wedge issue." While the natural constituency for the CBDTPA/SSSCA would suggest that the Republicans ought to back this, the fact that the Democrats have made the entertainment industry a major source of funds has skewed things in a way that the Republicans are going to try to exploit. See, for example, how things shake out in this article by Declan McCullagh and Robert Zarate from Wired: Content Spat Split on Party Lines
It will be interesting to see if the Democrats fall into this trap.
Granted, it's limited to the discussion of zoning laws in a local jurisdiction, but the courts seem to have held that businesses that only conduct commerce on the Internet are not limited by the regulations of the locations in which elements of the business are physically located.
Also, it's a messy can of worms, but they have definitely found that the Internet is a 'place' different from physical space, so the Elcomsoft lawyers have just made the next step.
One key statistic from the summary, 29% of adult Internet users told Pew that they had downloaded music on the Internet. And the trends were up at the time the study was completed.
Transforming that idea into music, movies, source code, or a book is work, and herein lies the crucial difference. Sure, I cannot own an idea - as soon as I divulge it to another, we both share the idea. However, you can reproduce that idea with no more effort than it takes to think. Reproducing music, or a book, is a little more difficult. I can't possibly remember all of the ideas represented in a book, so thus, I need a copy of the book as a reference when I forget. Same thing with music - I may learn a song, but I will never be able to sing as well as the original artist. This is what we pay for, folks. It is the effort that another went through to produce the music, the movie, the source code, or the book. It is not the idea
There are a couple things here that need challenging:
Copyright does NOT cover ideas; they are explicitly not protected. What is protected is expression. Legal interpretation has led to the construction that a mechanical reproduction is expression, hence phonorecordings are protected under copyright
You argue that what we are paying for is the effort that it took to transform an idea into music. If so, then where is the market for this? Why aren't there different prices for garage band puke and what the Cleveland Symphony records? And, given that the bulk of the monies go to the people who produce the physical CD object (who, BTW, is NOT the artist), why should we reward them so magnificently for their ability to push a $0.50 piece of plastic for $19.95?
In fact, given that the bulk of the money goes to the makers of CDs, why shouldn't I be allowed to use technologies that reduce the cost of making a CD? Doesn't the fact that the CD can be made cheaply and on demand result in a MORE EFFICIENT production system?
You indicate that you need to have a copy of a book because you can't possibly remember all the ideas in the book, and then you argue that's the same as the fact that you will never perform a song in the same fashion as the artist. You are conflating ideas and expression, again. They are different
In the end, this all comes down to the fact that we have allowed ourselves to conflate copyright with natural property rights. They are NOT the same, nor were they ever meant to be. Copyright requires an explicit tradeoff between access and ownership. Think about it: if I really want to protect my idea, I should never tell it to anyone!! If I want to protect my song, I should never perform it!! But, for certain kinds of businesses, if I want to make money on my idea, then I must reveal it, or its expression. So, a compromise has to be made: control over ideas and their expression versus the desire to make money. Governments step in and legislate a compromise. And, if they get it wrong, we ask for a new compromise.
The technology is here - the new compromise should be made - the fact that a new technology undermines a business model based on intellectual property should NOT be sufficient to outlaw the technology - maybe it's the business model that has to change!!!!
So - as an example - the "copy" of a CD's audio content as it passes from the disc to the speakers by means of decoding and amplification circuitry. Is that a copy of the music? It's as permanent as the data stored in RAM during the execution of software and is no more useful. You can't duplicate the game from the content of the PS's RAM; you'd be lucky to reconstruct all the data & program files from what passes through memory during an execution.
IANAL, and I definitely am not an expert on UK copyright law, but the current US construction of digital copies is that, in fact, the replication of digital materials in RAM for the purposes of using the information is, in fact, a copy. There are elements of the current code that try to work around it, but the basic principle is essentially held as appropriate.
This rather bizarre construction was first put forward during the Clinton administration, when the National Information Infrastructure task force examined intellectual property in the digital age. Their report can be found here: Intellectual Property and the National Information Infrastructure - see pages 64 et seq. for the statement of this principle, now embedded in the DMCA.
Where's the difference here? The only difference I see is that carrots have a physical manifestation which limits their ability to be easily duplicated and dispersed among a large audience. Music on the other hand, especially in our digital world, can be easily duplicated. The fact that music can be duplicated doesn't mean that the creator should give up his rights to it. If that is the case then what is the problem in passing a law which protects the creator's rights?
The idea that carrots are "rivalrous" (i.e., the taking of the object diminishes the subsequent stock of the resource available) is discussed elsewhere in this thread, so there's not much to add. However, there is a deeper issue here, which is the fact that "copyright" is not a natural property right - rather it is a government construct erected to stimulate innovation through TWO mechanisms. One mechanism is the notion that the creator of the "intellectual property" should have certain exclusive rights allowing him/her to extract monopoly rents for a specified period of time. The second mechanism is the notion that, through open access to novel ideas, new ideas are stimulated, building upon the so-called "public domain" of ideas. And this "public domain" is maintained and enriched as the specified period of time expires, freeing up novel ideas for the use of all.
Note that this construct is very distinct from "real property" and much of the debates in this area arise from the conflation of the two ideas. Laws like these, which seem to achieve legitimacy through the application of the metaphor of "property" for intellectual creations strain that metaphor to the breaking point. After all, most of these novel ideas build upon the public domain, a common resource developed through public policies - to claim exclusive ownership in all possible applications is cheating the rest of us who are participants in the society.
That's why copyright on a jazz piece is not the same as ownership of a bunch of carrots. Intellectual property is not real property, and the contradictions emerging as the owners of IP try to turn it into real property will eventually either fail miserably or stifle innovation by closing off the public domain forever.
I see several papers mentioned - don't miss Lessig's "The Architecture of Innovation." He's running with the ideas that he presented in Code, and they have definitely evolved since then. The description of the different notions of architecture/ownership at the outset of the paper is worth the price of admission alone. I'm not sure how much is replicated in his new book The Nature of Ideas, but this article is stark in its description of the challenges that we face, as well as bleak in terms of his expectations for the future given the path that we are on now.
Mitch Kapor didn't pay any attention to Windows. He was more concerned with 1-2-3 for OS/2 and -- believe it or not -- something called 1-2-3/M, a 1-2-3 spreadsheet for IBM mainframes.
Although the facts are accurate, you have to remember that, at the time, Microsoft was telling everyone to develop for OS/2 - Windows was supposed to be a mere "bridging" application
Then, Microsoft changed their internal strategies, but told none of their targeted competitors (Lotus and others) that all their development was going to Windows instead. When Windows 3.0 came out, Lotus, Borland, Ashton-Tate, et al found that they had been fooled into developing for a platform that Microsoft was never going to make mainstream - and the differences were enough that they were always going to be a step behind.
So, I'm sure that he learned that important lesson; the real question is why the rest of the Windows developer base didn't learn it!
If you think the RIAA is losing by making it clear how impossible it is to stop or monitor file sharing under the current model of the internet,...
There actually are several models under attack here, not just that of the Internet. They include:
Intellectual property/copyright; and
Music distribution
I would suggest that the RIAA is generating a lot of legal heat in order to support an outmoded distribution model. When they point out that there is no difference between a collection of MP3s and a CD, no one seems to ask the salient question: whose fault is that? Why isn't there an expectation that the record companies should work to innovate - to develop something deliverable on CD that *isn't* the same as a bunch of MP3s?
And there is a rising tide of discussion that perhaps there's something wrong with the current construction of copyright. The recently released Copyrights and Copywrongs points out the key issue that was also raised by Litman: somewhere along the way, the rationale for copyright has changed from promoting the intellectual commons to maximizing the economic incentives for innovation. And given that copyright has *always* (since the Statute of Anne in 1710) been about maximizing the likelihood that ideas get effective distribution (there's that word again!), it may be time to rethink the current mis-mosh of laws altogether.
I made a meager effort to get some of these ideas across in a class I'm teaching - the materials are online here
Compulsory licensing is the thing that let's radio stations broadcast records without negotiating a licensing agreement with every (a) music writer, (b) music performer, (c) music distributor or its designates. This is what the BMI and, to a lesser extent, ASCAP take care of, usually through the Harry Fox Agency.
In the case of Napster, all that compulsory licensing would mean is that the endless negotiations would not be necessary, just as they are not necessary for a radio station, or a restaurant playing recorded music. This is a key issue for webcasting as well as other methods for digital distribution.
'We gave content for free to radio, free to MTV,' grumbles Jay Samit, senior vice president for new media at EMI Recorded Music. 'We're not going to do that again.'
Compulsory licensing has been a topic in the Senate Judiciary Committee hearings on music distribution for the last six months or so. Until compulsory licensing or some equivalent for digital music comes into play, the record companies will be able to tie up anyone who tries to distribute music in an endless snarl of licensing negotiations.
What is this guy smoking? "Careful balance"? The whole problem with this law is that there's no balance at all!
I would urge you to get a copy of Litman's Digital Copyright and read her description of how current copyright laws come into existence.
Her basic point is that every copyright law since the first one in 1790 has always been measured against the pre-existing copyright laws, with the stakeholders aggressively negotiating the provisions of the new law to maximize their advantage. Thus, each new piece of copyright legislation is built upon a negotiated settlement, rather than a set of rational, self-consistent principles that are easy to understand and defend.
This was a perfectly workable system when copyright laws only really applied to a (relatively) small number of publishers of one sort or another - each of whom was able to participate in the negotiation. However, the rise of the Internet and the dissemination of inexpensive technology has made everyone a publisher -- and none of us were represented when the DMCA was put together. Congress, who is supposed to speak for us, has seen its role in copyright legislation as the arbiter of the negotiation, rather than the representative of the public's interest -- with the current circumstances.
Read the book - it's very on point - especially if you also read Lessig's Code
I note a number of people here seem to reject the notion that "cool" can be engineered. I *highly* recommend you all look at the FrontLine WWW site and look for "The Merchants of Cool" show. You will definitely have to rethink your assumptions. Their depiction of the use of anthropology-based tools to do market research on "coolness" and the way that they engineer their products around that is chilling - and the MTV empire is particularly well done.
Then tell me that cool is something wholly independent of a market.
Isn't This About The TX Legislature Screwing Up?
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Is Law Copyrighted?
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The TechLawJournal reference is more extensive than the one cited in the article, giving you access to the opinions and corollary rulings.
All this case should do is remind us that copyright, and intellectual property in general, is a legislative construct, i.e. made up by government institutions to achieve specific ends. To the extent that these ends are not achieved, legislatures change the construction and definition of IP.
For us in the US, Article 1, Section 8, clause 8 of the Constitution dictates that the Congress shall have the power to "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
"
If we don't like what our legislature's current method for achiving this objective does, then it's up to us to agitate for change.
When we consider that copyright exists to give an economic incentive to publishers to invest in the dissemination of information, it's hard to understand the Veeck v. SBCCI ruling - but it is also true that, if SBCCI invested a great deal in the development of those codes, they should get some kind of economic reward. Did the legislature screw up by incorporating copyrighted materials in legislation without getting rights to that copyright first? Almost certainly! But once again, the onus is on the legislature to dot their i's and cross their t's - and, IMHO, they certainly didn't in this case.
And it'll be up to the citizens of Texas to fix it......
Slashdot Mirror
Pricing of Downloaded Songs Prompts Antitrust Subpoenas
Granted but that wasn't really the point of my posting the article.
As more and more advanced (and expensive) technologies are available for veterinary care, the "willingness to pay" that these actions reveal is used to argue that pets have greater and greater *market* value.
25 years ago, if you ran over someone's pet, you apologized, and possibly helped to replace the animal. Today, you run a serious risk of being sued for serious money. Moreoever, this technology adds a whole new meaning to "replacing" the pet -- and you (or your insurance company) might end up footing the bill!
While there's lots of gasping about the price tag, there's no question that there are customers out there. See Burkhart Bilger's The Last Meow -- and no, it's not a joke article!
Here are the patents in question (from an ExtremeTech article -- December 16, 2002 -- Porn Kings Aflame Over Multimedia Patents)
Other sources (MSNBC) have already pointed out that the motives ascribed to the record companies in this article are just not there. Rather, it was a screw-up in their allocation scheme
So, nothing to see here. Just keep moving. [via BoingBoing and my weblog]
DRM is part of a process to break us of the nasty habit of thinking culture is a common good. Like a speed bump, it's not about making us stop; it's about making us recognize that someone thinks what we're doing is wrong. And then using our own naïvité to get us to stop. (Furdlog posting)
For a more elaborate explanation, see DRM Is A Folding Chair
The Environmental Cost of Silicon Chips - posted by Cowboy Neal citing a Scientific American article
Look, we already do a fabulous job at recycling automobiles. Over 75% by weight is recovered, either as parts to be reused or material to be refined and used. We did this, moreover, not because of any specific environmental mandate, but because it was economically advantageous to do so.
US automakers are sweating it today because the European Union, in adopting a German political initiative of the early 1990s, has mandated that automakers increase the recycling of automobiles, with targets of 80% to 95%, depending on how you read the regulation (recycled versus recovered).
However you look at it, the mandate is a sop to the environmental lobbies that fails to consider the real environmental effects of automobiles. Consider this: by defining the recycling targets in terms of mass percentages, the automobile industry has been incentivized to increase automobile mass, since there is a significant fraction of the vehicle that cannot be economically recycled. (Note: in the end, everything is recyclable - it's just that it gets expensive to do so; remember, it all started as rocks, petroleum, etc.)
So, even though we might want to increase the fuel economy of an automobile (something that starts with reducing the weight of the car), these recycling mandates point the automakers in the other direction!!
If you want to read some specifics, check these out:
Bzzzt! Sorry, this is not the history of copyright. Copyright was constructed by the British to break the power of the printing industry (the Stationers Guild), who had complete control over publishing. While this control was originally given to the Guild to achieve, as you describe, control over distribution (limiting seditious and sacreligious text), the British recognized that such control was counter-productive, both in terms of incentive to create and in terms of supporting the public domain as a common locus of raw materials for new innovation.
However, you are correct that copyright is a made up concept, created specifically to provide short term incentives for open dissemination of new ideas and long term incentives to enhance the public domain. What it is not is a natural right; societies created it to achieve a policy objective.
And therein lies the current problem. Berman purposely conflates copyright with property rights to confuse you into thinking that protection is necessary in the face of technological change. This is strong rhetorically [i.e., it "plays in Peoria"], even though it is, in fact, counterproductive to the policy objectives underlying copyright's construction.
And, in this climate, the rhetoric can lead to dangerous laws like this one actually getting passed, legislating the crippling of digital devices in order to maintain a false premise - that copyright is a property right.
And, if you don't believe that the government won't pass a law to cripple a technology, ask youself this: whatever happened to consumer digital audio tape recorders anyway???
Too bad the trolls have come out in force for this. Speaking as an attendee, it was a great conference for anyone interested in the direction of the Internet. Sadly, those posters who seem baffled by the notion that the law matters in this area are probably those who fail to understand that the law evolves in response to social needs - and the extent to which the Internet is something that you use means that the law will emerge to shape that environment. You can either participate in that shaping, or you can stick your head in the sand (or put your fingers in your ears and yell LA-LA-LA). If you choose the latter, don't complain when you suddenly find that
Do I sound paranoid? Maybe, but the fact is, these things are part of the debate - today! Hollings, Berman and others are working on it, and there is already enough legislation (DMCA, PATRIOT) to get you. And it's not just a US thing - international treaties are being signed and revised.
So, wake up! This stuff matters! And it's beyond parties - this is going to hit you where you live!
This is certainly the right answer, albeit not to the question posed. However, it probably implies the correct question, which is what can be done to deal with the morass that copyright has become? There are a couple of questions that Congress really should be addressing:
The key legislative need is clarification of the government's position, rather than relying upon the courts to thrash this out. CBDTPA's flaws are deeper than the content providers vs. computer industry conflict, and patching it will only slow the development of the clarity needed to go forward.
While this is a happy moment for common sense, this is just going to play into the hands of the CBDTPA supporters. The arugment will be that, given that piracy is rampant, the economics of prosecuting each and every infringer is overwhelming. The more economically efficient solution is to impose a technological lock on hardware to block such economic losses
We still need to get the argument away from the question of copyright infringement and onto the subject of copyright itself - why it exists, who and what it is supposed to protect, etc. This is not easy, but the public policy debate is misdirected now and we have to get it changed. Otherwise, this is going to just make things easier for Hollings
As has already been cited, these FoxNews postings (see also Ken Layne's Music Fans Must Rebel Against Greedy Record Industry ) represent the beginnings of a test by the Republican Party to make Napster a "wedge issue." While the natural constituency for the CBDTPA/SSSCA would suggest that the Republicans ought to back this, the fact that the Democrats have made the entertainment industry a major source of funds has skewed things in a way that the Republicans are going to try to exploit. See, for example, how things shake out in this article by Declan McCullagh and Robert Zarate from Wired: Content Spat Split on Party Lines
It will be interesting to see if the Democrats fall into this trap.
See this article from the New York Times: Florida Community Can't Shut Down 'Voyeur Dorm' - October 5, 2001; upheld in the Supreme Court as cited in Wired - Court Rejects VoyeurDorm Case, February 25, 2002.
Granted, it's limited to the discussion of zoning laws in a local jurisdiction, but the courts seem to have held that businesses that only conduct commerce on the Internet are not limited by the regulations of the locations in which elements of the business are physically located.
Also, it's a messy can of worms, but they have definitely found that the Internet is a 'place' different from physical space, so the Elcomsoft lawyers have just made the next step.
Gonna be fun to watch!
If you want to see some data on who was/is doing music downloads, see
The Music Downloading Deluge, a report from the Pew Internet Project
One key statistic from the summary, 29% of adult Internet users told Pew that they had downloaded music on the Internet. And the trends were up at the time the study was completed.
There are a couple things here that need challenging:
In the end, this all comes down to the fact that we have allowed ourselves to conflate copyright with natural property rights. They are NOT the same, nor were they ever meant to be. Copyright requires an explicit tradeoff between access and ownership. Think about it: if I really want to protect my idea, I should never tell it to anyone!! If I want to protect my song, I should never perform it!! But, for certain kinds of businesses, if I want to make money on my idea, then I must reveal it, or its expression. So, a compromise has to be made: control over ideas and their expression versus the desire to make money. Governments step in and legislate a compromise. And, if they get it wrong, we ask for a new compromise.
The technology is here - the new compromise should be made - the fact that a new technology undermines a business model based on intellectual property should NOT be sufficient to outlaw the technology - maybe it's the business model that has to change!!!!
IANAL, and I definitely am not an expert on UK copyright law, but the current US construction of digital copies is that, in fact, the replication of digital materials in RAM for the purposes of using the information is , in fact, a copy. There are elements of the current code that try to work around it, but the basic principle is essentially held as appropriate.
This rather bizarre construction was first put forward during the Clinton administration, when the National Information Infrastructure task force examined intellectual property in the digital age. Their report can be found here: Intellectual Property and the National Information Infrastructure - see pages 64 et seq. for the statement of this principle, now embedded in the DMCA.
Tragic, ain't it?
Where's the difference here? The only difference I see is that carrots have a physical manifestation which limits their ability to be easily duplicated and dispersed among a large audience. Music on the other hand, especially in our digital world, can be easily duplicated. The fact that music can be duplicated doesn't mean that the creator should give up his rights to it. If that is the case then what is the problem in passing a law which protects the creator's rights?
The idea that carrots are "rivalrous" (i.e., the taking of the object diminishes the subsequent stock of the resource available) is discussed elsewhere in this thread, so there's not much to add. However, there is a deeper issue here, which is the fact that "copyright" is not a natural property right - rather it is a government construct erected to stimulate innovation through TWO mechanisms. One mechanism is the notion that the creator of the "intellectual property" should have certain exclusive rights allowing him/her to extract monopoly rents for a specified period of time. The second mechanism is the notion that, through open access to novel ideas, new ideas are stimulated, building upon the so-called "public domain" of ideas. And this "public domain" is maintained and enriched as the specified period of time expires, freeing up novel ideas for the use of all.
Note that this construct is very distinct from "real property" and much of the debates in this area arise from the conflation of the two ideas. Laws like these, which seem to achieve legitimacy through the application of the metaphor of "property" for intellectual creations strain that metaphor to the breaking point. After all, most of these novel ideas build upon the public domain, a common resource developed through public policies - to claim exclusive ownership in all possible applications is cheating the rest of us who are participants in the society.
That's why copyright on a jazz piece is not the same as ownership of a bunch of carrots. Intellectual property is not real property, and the contradictions emerging as the owners of IP try to turn it into real property will eventually either fail miserably or stifle innovation by closing off the public domain forever.
I see several papers mentioned - don't miss Lessig's "The Architecture of Innovation." He's running with the ideas that he presented in Code, and they have definitely evolved since then. The description of the different notions of architecture/ownership at the outset of the paper is worth the price of admission alone. I'm not sure how much is replicated in his new book The Nature of Ideas, but this article is stark in its description of the challenges that we face, as well as bleak in terms of his expectations for the future given the path that we are on now.
Mitch Kapor didn't pay any attention to Windows. He was more concerned with 1-2-3 for OS/2 and -- believe it or not -- something called 1-2-3/M, a 1-2-3 spreadsheet for IBM mainframes.
Although the facts are accurate, you have to remember that, at the time, Microsoft was telling everyone to develop for OS/2 - Windows was supposed to be a mere "bridging" application
Then, Microsoft changed their internal strategies, but told none of their targeted competitors (Lotus and others) that all their development was going to Windows instead. When Windows 3.0 came out, Lotus, Borland, Ashton-Tate, et al found that they had been fooled into developing for a platform that Microsoft was never going to make mainstream - and the differences were enough that they were always going to be a step behind.
So, I'm sure that he learned that important lesson; the real question is why the rest of the Windows developer base didn't learn it!
FWIW
If you think the RIAA is losing by making it clear how impossible it is to stop or monitor file sharing under the current model of the internet,...
There actually are several models under attack here, not just that of the Internet. They include:
Intellectual property/copyright; and
Music distribution
I would suggest that the RIAA is generating a lot of legal heat in order to support an outmoded distribution model. When they point out that there is no difference between a collection of MP3s and a CD, no one seems to ask the salient question: whose fault is that? Why isn't there an expectation that the record companies should work to innovate - to develop something deliverable on CD that *isn't* the same as a bunch of MP3s?
And there is a rising tide of discussion that perhaps there's something wrong with the current construction of copyright. The recently released Copyrights and Copywrongs points out the key issue that was also raised by Litman: somewhere along the way, the rationale for copyright has changed from promoting the intellectual commons to maximizing the economic incentives for innovation. And given that copyright has *always* (since the Statute of Anne in 1710) been about maximizing the likelihood that ideas get effective distribution (there's that word again!), it may be time to rethink the current mis-mosh of laws altogether.
I made a meager effort to get some of these ideas across in a class I'm teaching - the materials are online here
Compulsory licensing is the thing that let's radio stations broadcast records without negotiating a licensing agreement with every (a) music writer, (b) music performer, (c) music distributor or its designates. This is what the BMI and, to a lesser extent, ASCAP take care of, usually through the Harry Fox Agency.
In the case of Napster, all that compulsory licensing would mean is that the endless negotiations would not be necessary, just as they are not necessary for a radio station, or a restaurant playing recorded music. This is a key issue for webcasting as well as other methods for digital distribution.
A truly salient quote from The Music Men Are Out of Tune in Fortune is worth citing here:
Compulsory licensing has been a topic in the Senate Judiciary Committee hearings on music distribution for the last six months or so. Until compulsory licensing or some equivalent for digital music comes into play, the record companies will be able to tie up anyone who tries to distribute music in an endless snarl of licensing negotiations.
I would urge you to get a copy of Litman's Digital Copyright and read her description of how current copyright laws come into existence.
Her basic point is that every copyright law since the first one in 1790 has always been measured against the pre-existing copyright laws, with the stakeholders aggressively negotiating the provisions of the new law to maximize their advantage. Thus, each new piece of copyright legislation is built upon a negotiated settlement, rather than a set of rational, self-consistent principles that are easy to understand and defend.
This was a perfectly workable system when copyright laws only really applied to a (relatively) small number of publishers of one sort or another - each of whom was able to participate in the negotiation. However, the rise of the Internet and the dissemination of inexpensive technology has made everyone a publisher -- and none of us were represented when the DMCA was put together. Congress, who is supposed to speak for us, has seen its role in copyright legislation as the arbiter of the negotiation, rather than the representative of the public's interest -- with the current circumstances.
Read the book - it's very on point - especially if you also read Lessig's Code
I note a number of people here seem to reject the notion that "cool" can be engineered. I *highly* recommend you all look at the FrontLine WWW site and look for "The Merchants of Cool" show. You will definitely have to rethink your assumptions. Their depiction of the use of anthropology-based tools to do market research on "coolness" and the way that they engineer their products around that is chilling - and the MTV empire is particularly well done.
Then tell me that cool is something wholly independent of a market.
The TechLawJournal reference is more extensive than the one cited in the article, giving you access to the opinions and corollary rulings.
All this case should do is remind us that copyright, and intellectual property in general, is a legislative construct, i.e. made up by government institutions to achieve specific ends. To the extent that these ends are not achieved, legislatures change the construction and definition of IP.
For us in the US, Article 1, Section 8, clause 8 of the Constitution dictates that the Congress shall have the power to "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; "
If we don't like what our legislature's current method for achiving this objective does, then it's up to us to agitate for change.
When we consider that copyright exists to give an economic incentive to publishers to invest in the dissemination of information, it's hard to understand the Veeck v. SBCCI ruling - but it is also true that, if SBCCI invested a great deal in the development of those codes, they should get some kind of economic reward. Did the legislature screw up by incorporating copyrighted materials in legislation without getting rights to that copyright first? Almost certainly! But once again, the onus is on the legislature to dot their i's and cross their t's - and, IMHO, they certainly didn't in this case.
And it'll be up to the citizens of Texas to fix it......