A Search for Comity in the Intellectual Property Wars: symposium at The New York Institute for the Humanities at NYU, April 28-30, 2006 [slides, audio, transcripts]
As a whole bunch of you have sent in, the musician Moby has put up a blog post where he suggests the RIAA should be disbanded for its $1.92 million win over Jammie Thomas. While (unfortunately) he gets a few of the facts wrong (they didn't sue her for
$2 million, but it's what the jury chose -- though it is accurate that
the RIAA has clearly suggested it has no problem with the statutory
rates for infringement in the past), his overall point is sound. It's
ridiculous that the RIAA thinks this is the proper strategy:
argh. what utter nonsense. this is how the record
companies want to protect themselves? suing suburban moms for listening
to music? charging $80,000 per song?
punishing people for listening to music is exactly the wrong
way to protect the music business. maybe the record companies have
adopted the 'it's better to be feared than respected' approach to
dealing with music fans. i don't know, but 'it's better to be feared
than respected' doesn't seem like such a sustainable business model
when it comes to consumer choice. how about a new model of 'it's better
to be loved for helping artists make good records and giving consumers
great records at reasonable prices'?
i'm so sorry that any music fan anywhere is ever made to feel bad for making the effort to listen to music.
the riaa needs to be disbanded.
This isn't new territory for Moby. Way back in 2003, he got angry
after finding out that some of his songs were being used by the RIAA to
sue people, and stated: "I'm tempted to go onto Kazaa and download some
of my own music, just to see if the RIAA would sue me for having mp3's
of my own songs on my hard-drive."
Still, we're seeing more and more artists react poorly to the
RIAA, who still claims to represent them. Why is it that our
politicians still buy that clearly incorrect story?
There are currently two high profile RIAA lawsuits taking place. One of them involves a Harvard professor and the other involves Jammie Thomas-Rasset.
Now the lawyers in both cases are forming a partnership to file a
class-action lawsuit against the RIAA to get back the $100 million that
they claim the recording industry stole.
Kiwi Camara represents Jammie Thomas-Rasset in a lawsuit that the
RIAA filed against her. There is a retrial taking place in Minnesota
next week. Harvard Law professor Charles Nesson is representing Boston
student Joel Tenenbaum in an RIAA trial as well. Kiwi and Charles are
the ones getting together to file the $100 million class action lawsuit
against the RIAA.
Camara did an interview with Ars Technica earlier this week and
revealed two pieces of evidence that will help his case. MediaSentry
was hired by the RIAA to track down the IP address of those who share
files. Camara is arguing that MediaSentry is not licensed as a private
investigator in Minnesota. This makes them running an illegal “pen
register” and their evidence should be barred.
Another approach that Camara is considering is making the RIAA prove
that they own the copyrights in question. If the RIAA or MediaSentry
cannot prove any of the above scenarios, then the cases will fall apart
for them. Camara’s approach is quite unorthodox.
Camara said that the RIAA basically committed a “technical screw-up”
when it came to claiming the proper copyright ownership. The RIAA
lawyers provided courts with “true and correct” copies of the evidence,
but they were not “certified copies” required by federal rules of
evidence.
The RIAA asked the judge to take judicial notice for these claims,
but the judge refused. The recording industry will now have a limited
amount of time to file for the certified copies. Camara already has
rebuttals in mind just in case the RIAA is able to get all of the
certified copies necessary for the case.
More news on the trial as it develops. Kudos to Ars Technica for their thorough coverage of this case.
You
are killing our creative industries. "Downloading costs billions," said
the Sun. "MORE than 7 million Brits use illegal downloading sites that
cost the economy billions of pounds, government advisers said today.
Researchers found more than a million people using a download site in
ONE day and estimated that in a year they would use £120bn worth of
material."
That's about a tenth of our GDP. No wonder the Daily
Mail was worried too: "The network had 1.3 million users sharing files
online at midday on a weekday. If each of those downloaded just one
file per day, this would amount to 4.73bn items being consumed for free
every year." Now I am always suspicious of this industry, because they
have produced a lot of dodgy figures over the years. I also doubt that
every download is lost revenue since, for example, people who download
more also buy more music. I'd like more details.
So where do
these notions of so many billions in lost revenue come from? I found
the original report. It was written by some academics you can hire in a
unit at UCL called Ciber, the Centre for Information Behaviour and the
Evaluation of Research (which "seeks to inform by countering idle
speculation and uninformed opinion with the facts"). The report was
commissioned by a government body called Sabip, the Strategic Advisory
Board for Intellectual Property. On the billions lost it says:
"Estimates as to the overall lost revenues if we include all creative
industries whose products can be copied digitally, or counterfeited,
reach £10bn (IP rights, 2004), conservatively, as our figure is from
2004, and a loss of 4,000 jobs."
What is the origin of this
conservative figure? I hunted down the full Ciber documents, found the
references section, and followed the web link, which led to a 2004
press release from a private legal firm called Rouse who specialise in
intellectual property law. This press release was not about the £10bn
figure. It was, in fact, a one-page document, which simply welcomed the
government setting up an intellectual property theft strategy. In a
short section headed "background", among five other points, it says:
"Rights owners have estimated that last year alone counterfeiting and
piracy cost the UK economy £10bn and 4,000 jobs." An industry estimate,
as an aside, in a press release. Genius.
But what about all these
other figures in the media coverage? Lots of it revolved around the
figure of 4.73bn items downloaded each year, worth £120bn. This means
each downloaded item, software, movie, mp3, ebook, is worth about £25.
This already seems rather high. I am not an economist, but to me, for
example, an appropriate comparator for someone who downloads a film to watch it once might be the rental value, not the sale value.
In
any case, that's £175 a week or £8,750 a year potentially not being
spent by millions of people. Is this really lost revenue for the
economy, as reported in the press? Plenty will have been schoolkids, or
students, and even if not, that's still about a third of the average UK
wage. Before tax.
Oh, but the figures were wrong: it was actually
473m items and £12bn (so the item value was still £25) but the wrong
figures were in the original executive summary, and the press release.
They changed them quietly, after the errors were pointed out by a BBC
journalist.
I asked what steps they took to notify journalists of
their error, which exaggerated their findings by a factor of 10 and
were reported around the world. Sabip refused to answer questions in
emails, insisted on a phone call, told me that they had taken steps but
wouldn't say what and explained something about how they couldn't be
held responsible for lazy journalism, then, bizarrely, after 10
minutes, tried to tell me retrospectively that the call was off the
record. I think it's OK to be confused and disappointed by this. Like I
said: as far as I'm concerned, everything from this industry is false,
until proven otherwise.
I was lucky enough to catch Larry Lessig's talk "Copyright Wars," at the Sophiensaele on my last night in Berlin. It was sponsored by the Heinrich Boll Foundation.
I finally got a chance to watch this great documentary on my flight home from Berlin yesterday -- perfectly fitting after participating in the ECLA State of the World Week conference on the Politics of Cultural Ownership, and then catching the surprise talk by Lessig at the Sophiensaele along with some of "my" students on my last night in town.
(I'll be remixing some screen grabs from this film for my powerpoint keynote at Iona College's inaugural Conference on Intellectual Property in June -- more on that soon!)
When it comes to remix culture, copyfight and crowd-sourcing, Brett
Gaylor walks the walk. The director of “open source documentary” RiP: A Remix Manifesto
released his feature-length film under a Creative Commons license and
even adopted Radiohead’s name-your-own-price business model when he
made the movie available online.
“We’ve gone to really great lengths to make this film as accessible
as possible,” Gaylor explained in an e-mail interview conducted after
announcing the download Monday. “It’s already on the Pirate Bay, and
that’s great — it’s another delivery format. We didn’t put it there
ourselves, though; we didn’t need to. Had we gone that route, it’s
fairly likely, given the realities of the film-distribution universe,
that we wouldn’t have these other opportunities to get the film to
people who still watch TV, rent DVDs or go to movies, which is, in
fact, most people. We wanted those people to watch this movie.”
Featuring mashup artist Girl Talk and luminaries like Lawrence Lessig, Gilberto Gil and Cory Doctorow, RiP: A Remix Manifesto debuted in Amsterdam and Canada last year and in North America last month. It opens theatrically Friday in New York.
The movie’s compelling analysis of sampling, sharing and
copyfighting was pieced together over six years, during which Gaylor
shared his raw footage with other filmmakers, some of whose remixes he
spliced into the film. Given the realities of remix culture, where
there is no such thing as a final cut, Gaylor subsequently offered the
movie online as a remix experiment at Open Source Cinema, which he founded and beta-launched in 2004.
Since then, the little doc that could has nabbed awards, screened at
panels and walked the tightrope between theatrical and internet
distribution, original art and open-sourced amalgam, without falling
off.
Gaylor talks about copyfight crusaders, the trials and tribulations
of the distribution war, and the joys of messing with the media.
RiP: A Remix Manifesto director Brett Gaylor asks fans to pay what they will for his downloadable doc. Photo: Mila Aung-Thwin
Wired.com: The pay-what-you-want initiative makes
perfect sense for this film, but I’m betting it wasn’t easy to pull off
from a business perspective.
Brett Gaylor: It’s been a peculiar road to get to
the point where we could release the film as a download, because
obviously this is something we wanted to do right from the get go. But
since we have so many partners that helped us make the film, including
theatrical and television distributors, it was a delicate balancing act
to make sure the good faith they showed in making the film would be
rewarded, that we wouldn’t undercut their efforts to promote and recoup
on the film by giving it away. So we waited a while before launching
the various online permutations. The National Film Board [of Canada]
put up a chaptered version during our U.S. premiere at South by
Southwest in March, and we embedded calls to action into each chapter.
Around SXSW, we partnered with two American partners —
Disinformation for our DVD release, and BSide for the theatrical side
of things. And at the first meeting I had with them, it became clear
that we needed to go down this road. We knew the film would appear on
file-sharing networks immediately and we knew the audience for the film
wanted and expected it to be online. So knowing that, we wanted there
to be a method for those who wanted to pay to do so.
Wired.com: Are you satisfied with the arrangement so far?
Gaylor: It’s still not moving as fast as I’d
ultimately like. The pay-what-you-can is at the moment just available
for those in the U.S., while some of the other world territories do
their thing theatrically or on DVD. And we, being the National Film
Board of Canada, and our production company EyeSteelFilm, want those
territories to be able to have a chance to define their own business
model, so it’s fair. Its been a lot of tricky e-mails.
Wired.com: How has the theatrical run gone, and how are you feeling about the New York City opening?
Gaylor: The theatrical run so far has been amazing.
In Canada, it played literally coast to coast, and there is something
immensely satisfying as a filmmaker to see your film’s title on a
marquee and have people watch it together on a big screen. We went to a
lot of lengths for it to work well in that format; it’s got big sound,
beautiful graphics and animation, and the cinematographer Mark Ellam did an amazing job.
It’s also really challenging to engage the public in theaters,
because you’re playing your film to this broad demographic. We had
people in the lineups at the AMC trying to decide if they’d go see Benjamin Button
or this crazy copyright remix movie, so that was a surreal pleasure. It
also generated a ton of press for the film, mostly great, but the film
enraged the right-wing papers in the country who took a lot of umbrage
with its central themes.
Battle lines over free culture are drawn in this RiP collage, entitled Copyright vs. Copyleft.
Wired.com: Tell us about the New York screening, which coincides with a panel from the Open Video Alliance about standards and practices.
Gaylor: We’re doing a sneak preview on Friday and
then following up with the launch at the Open Video Conference, which
I’m extremely excited to participate in. I was part of the initial
planning sessions for this group back in the fall, and it really feels
like a culmination of all this disparate work that has been going on in
the free culture world for years. Filmmakers, free software geeks,
remixers, lawyers, academics — all these different people who have been
working on these parallel tracks are starting to feed their work into
one another, and I find it incredibly inspiring. So it will be an honor
to show the film there. It’s a tough crowd, too!
Wired.com: What are your thoughts on the future of open video?
Gaylor: I’m generally optimistic about it. There
are a lot of challenges, for sure: Lack of universal standards,
third-party rights, bandwidth, access for the developing world, and a
lack of basic media literacy among users. On the flip side, I think the
internet will very quickly overtake TV as the content-delivery medium
of choice, and with that comes the opportunity for a genuine
participatory experience. I think the time is now for developing the
tools, standards and practices to make sure we don’t just see TV 2.0.
Party music remix champ Greg Gillis, aka Girl Talk, fights the good copyfight in RiP: A Remix Manifesto. Photo: Andrew Strasser
Wired.com: Talk about working with Girl Talk’s
Gregg Gillis and Negativland’s Mark Hosler on this film and its various
openings. What role have both played in the evolution of remix culture?
Gaylor: Working with Gregg was a lot of fun. One of
the reasons I wanted to include him in the film is because he doesn’t
see himself as a copyright crusader. He’s a serious musician whose work
points out a lot of flaws, contradictions and challenges in current
copyright law. The fact that he’s been able to reach such a level of
success without a lawsuit has created a lot of elbow room for musicians.
When you think about Negativland,
which had a fairly major lawsuit filed against them over a decade ago,
it’s obvious that things are changing. Negativland had a huge influence
on my life. Watching it take such an intelligent, activist stance was
very inspiring, and you could tell they were taking such joy in fucking
with the media. It was something I looked at and said, “Yeah, I could
do that! I want to do that!”
Wired.com: How about Lessig and Doctorow?
Gaylor: Their writing put some meat on the bones,
and framed the debate for a whole generation of copyright activists.
For a lot of people, it was like suddenly realizing: “That’s what kind
of activist I am.”
Wired.com: You’ve said in your blog that
“theatrical distribution is a war.” Can you elaborate? And what does
internet distribution, legal and otherwise, offer in terms of an olive
branch?
Gaylor: It’s a war in that you have to do so much
to get the proverbial butts in the seats. It’s extremely costly and the
stakes are high, whereas I think the internet gives some opportunities
to speak directly to an audience. With RiP, we tried to have
the best of both worlds. It was important that folks who weren’t
exposed to these issues were able to see it, but we also wanted to try
and lower the friction as much as possible to those who were active
online and who would really see themselves in the film.
Wired.com: Now that you’ve made a film on these
issues, has your mind changed about intellectual property or ownership?
What’s the tightrope there?
Gaylor: The classic copyright ones: Providing an
incentive, while at the same time ensuring the public’s access to the
work. Ultimately, that’s what I, and most people in this movement, are
pushing for — a balance. So the film release was a lot more “free as in
speech” than it was “free as in beer,” because it was important for me
that average folks could see the film on TV or in theaters. And
eventually, after a limited term (measured in months!), the film will
fall into the public/pirate domain and be copied freely.
Wired.com: Do you envision a day when theatrical distribution is a dinosaur, and we’re all paying to stream films online?
Gaylor: We’ll see how I feel about that in a year.
The remixing is just starting to take off, and I envision a time when
these sorts of interactions will create an environment where a
theatrical screening is to filmmakers what live performances are to
musicians. The ability to create something unique for a particular
screening or event allows you to offer an added value to that audience
member, as well as have something unique that’s different from what you
can get on a DVD or online.
It was a tough morning swallowing Spencer's
review. My reaction was -- "really, that's what you see in the book?!"
None of the key points that made it worth my writing the book were
visible to him (or at least, as evinced by the review). And that,
frankly, was astonishing, and astonishingly depressing.
But it is the end of the day (here in Hong Kong), and with it comes a review by Kathleen Fitzpatrick,
that is actually about the stuff in this book that is what the book's
about, and new (and of course, as I think, important). What the book
"is" of course is hard to say. But her review is actually a review of
the book I thought I wrote.[...]
excerpt of the Fitzpatrick review (in B&N reviews):
Remix: Making Art and Commerce Thrive in the Hybrid Economy By LAWRENCE LESSIG
"What does it mean to society when a whole generation
is raised as criminals?" This is the question that intellectual
property guru and "copyleft" leader Lawrence Lessig asks in his new
book, Remix. He's building on a point he first raised in his influential volume Free Culture:
if we are going to declare a "war on piracy," we need to be prepared
for collateral damage. The blowback that Lessig explored in Free Culture
was felt by traditional U.S. culture, with its modes of open exchange
(libraries distributing books, for instance, as well as teenagers
making mix tapes) and its reliance on a growing public domain to spur
creativity.
In this book, Lessig identifies victims even closer to home: our
children. "How," Lessig asks, is the war on piracy "changing how they
think about normal, right-thinking behavior?" The creative practices of
today's youth include a range of activities -- file sharing, most
notoriously, but also the production of mashups -- that are illegal
under the current copyright regime, but criminalization is having
little success as a deterrent. Instead, the focus on "piracy" is
changing our relationship to the law itself, which has come to seem
arbitrary and unfair, and it's hampering creative and educational uses
of new technologies. It's time to consider, Lessig argues, whether the
costs of this war are too high.
As recently as 100 years ago, the majority of the
music that Americans heard was that which they made themselves, or
which others around them made. Prior to the popularization of the
player piano, followed by the gramophone and the radio, music had to be
performed live, and for that reason, an amateur culture of music making
flourished. The spread of technologies for the recording and playback
of music thus didn't democratize music itself but rather the ability of
the masses to hear professionals play. The end result, as Lessig points
out, was in fact highly anti-democratic, replacing an amateur culture
with a professional culture and transforming much of the populace from
producers into consumers. As music (along with other artistic
practices) became increasingly professionalized, it also became
increasingly subject to ideas of ownership, with the result that
amateur uses of music's professional products became increasingly
restricted.
However, many of those amateur uses of professional culture
were restricted throughout the 20th century, not just by legislation
but also by the scarcity and cost of the technologies involved. Since
few people had access to recording facilities, for instance, the
unauthorized reproduction of music was a fairly limited affair. What
copyright controlled, for much of its existence, was thus the
professional reproduction of cultural texts -- usually in the form of
books and other printed matter -- and copyright law was understood to
restrict publishers from releasing competing versions of texts, rather
than restricting consumers in their uses of those texts.
The situation has of course changed, and changed
radically, in the age of the computer, as the technologies of cultural
production are available on an increasing number of desktops throughout
the country. On the positive side, this change has the potential to
transform a professionalized, read-only culture back into a widespread
amateur read-write culture. On the negative side, however, computer
technologies have caused the jurisdiction of copyright law to spread
from producers to consumers and thereby increasingly restrict the uses
we can make of the culture we participate in.
Posted here are two pieces: the first, an excerpt from today's Op-Ed by NYTimes columnist Paul Krugman, offers a view of the future of technology with (uncharacteristic) optimism; the other is a press release about several major record labels currently suing Spain's own P2P pioneer, Pablo Soto. An interesting juxtaposition. The money quote is about litigation not being a particularly "valid business model".
Do you remember what it was like back in the old days when we had a New
Economy? In the 1990s, jobs were abundant, oil was cheap and
information technology was about to change everything.
Then the technology bubble popped. Many highly touted New Economy
companies, it turned out, were better at promoting their images than at
making money -- although some of them did pioneer new forms of
accounting fraud. After that came the oil shock and the food shock,
grim reminders that we’re still living in a material world.
So
much, then, for the digital revolution? Not so fast. The predictions of '90s technology gurus are coming true more slowly than enthusiasts
expected -- but the future they envisioned is still on the march.
In
1994, one of those gurus, Esther Dyson, made a striking prediction:
that the ease with which digital content can be copied and disseminated
would eventually force businesses to sell the results of creative
activity cheaply, or even give it away. Whatever the product --
software, books, music, movies -- the cost of creation would have to be
recouped indirectly: businesses would have to "distribute intellectual
property free in order to sell services and relationships."
For
example, she described how some software companies gave their product
away but earned fees for installation and servicing. But her most
compelling illustration of how you can make money by giving stuff away
was that of the Grateful Dead, who encouraged people to tape live
performances because "enough of the people who copy and listen to
Grateful Dead tapes end up paying for hats, T-shirts and performance
tickets. In the new era, the ancillary market is the market."
Indeed,
it turns out that the Dead were business pioneers. Rolling Stone
recently published an article titled "Rock's New Economy: Making Money
When CDs Don't Sell." Downloads are steadily undermining record sales --
but today's rock bands, the magazine reports, are finding other sources
of income. Even if record sales are modest, bands can convert airplay
and YouTube views into financial success indirectly, making money
through "publishing, touring, merchandising and licensing."
What other creative activities will become mainly ways to promote side businesses? How about writing books?
Lawsuit, Believed to be Unprecedented, Claims "Unfair Competition"
Madrid, Spain (PRWEB) June 5, 2008 -- MP2P Technologies (http://www.mp2p.net/)
announced today that it has been served with a lawsuit from what
remains of the four major record labels. The lawsuit, WARNER MUSIC
SPAIN S.A., UNIVERSAL MUSIC SPAIN, S.A., EMI MUSIC SPAIN, S.A., SONY
BMG MUSIC ENTERTAINMENT, S.A., PRODUCTORES DE MUSICA EN ESPANA
(PROMUSICAE) v. PABLO SOTO BRAVO, OPTISOFT, S.L., PIOLET NETWORKS,
S.L., MP2P TECHNOLOGIES, S.A. (filed in Madrid Court for Commercial
Matters # 2807910001898), seeks $20mm in alleged damages from the
technology upstart.
"We intend to vigorously defend ourselves against this shake down
attempt by the major label cabal," said Pablo Soto, founder and CEO of
MP2P Technologies. "Rather than embracing technology, they have chosen
a path that will ultimately lead to their own demise, as evidenced by
the labels consistent decline over the past decade. Litigation is in
itself not a valid business model for them, however, it has been a
dogged and futile pursuit of theirs since the advent of P2P."
"PROMUSICAE (Spanish branch of the IFPI; international arm of the
RIAA) tried to proceed with civil suits against users of P2P networks
in Spain and, after being halted by the Court of Justice of the EU, it
has now decided to go against a neutral communication tool such as P2P
technology," added Soto.
Pablo Soto is considered one of the pioneers of P2P, together with
other distinguished luminaries such as Justin Frankel (Gnutella) and
Shawn Fanning (Napster). He is a frequent panelist at national and
international forums and serves from time to time as a visiting
professor at the University of Valencia and the University of the
Basque Country. His progressive accomplishments in technology have
garnered worldwide press recognition, including CNN, The New York
Times, Reuters, AP, USA Today, C/Net, Rolling Stone, CBS News, San Jose
Mercury News, among many others.
About MP2P Technologies MP2P Technologies' software offerings
have been downloaded millions of times by scores of people from around
the globe. Founded by renowned technology developer Pablo Soto in 2000,
MP2P Technologies today remains a leader in the P2P sector and consumer
technology. MP2P Technologies is headquartered in Madrid, Spain. For
more information, visit http://www.mp2p.net.
In theory, there's just one set of copyright rules and they apply to
everyone, from Sony Pictures to your neighbour's eight-year-old who
wants to photocopy his Spider-Man comics and sell them to the other
kids.
Regardless of who wants to make a new Spider-Man comic,
movie or other derivative work, that person has to hire a lawyer, have
that lawyer call up Marvel Comics, set up a call or a face-to-face,
negotiate a contract, sign it, pay a fee, and report on their ongoing
uses, opening their books for auditing and inspection.
Sony
Pictures can do this. It can send lawyers to Marvel and Marvel will
send its lawyers back to Sony. Everyone gets to sit at a long table and
hammer out the deal, then they issue a press release and go into
production.
But little Timmy can't do it. He never could. And yet
when you talk to comic book creators, they'll tell you that they got
started by drawing copies of other peoples' work.
Musicians
start by playing the music they love. Painters start by copying other
painters. Filmmakers try to recreate the effects and scenes they've
been inspired by in big-screen releases.
Aping each other
This
seems pretty basic: even primates watch each other and copy (or, if you
will, "ape") each other, so when one monkey figures out how to improve
a potato by dipping it in salt water, the whole gang follows suit.
We
copy each other to learn and to improve - it's one of the things that
makes us human, because we're a lot better at it than chimps.
It's
not just Timmy's Spider-Man comic. The babysitter brings over a bag of
DVDs to keep the kids quiet; you organise a singalong at the pub; you
make a mix tape as part of an awkward teenaged mating ritual: all these
uses fall on the wrong side of copyright law unless they are preceded
by a complex legal dance of the sort that mere mortals rarely even
glimpse, let alone partake of.
Through most of copyright's
history, we had two de facto systems: industrial regulation (governing
what big companies did with each others' stuff) and folk-copyright (the
rules of thumb that most of us understood to be true).
Spider-Man knock-off
This
meant that it was OK to photocopy a Dilbert toon for your cubicle wall,
make a copy of a record for your pal, or publish your own low-rent
Spider-Man knock-off in the school newspaper.
Folk-copyright
didn't have a lot of legal authority - it was completely backwards on
any number of subjects - but it worked. The likes of Time Warner, Sony,
Universal or EMI weren't going to bust you for what you got up to at
the OAPs' campfire singalong, and not just because they'd look foolish
for doing so.
It just wasn't cost-effective to hunt down all
the kids flogging fan-fiction Star Trek episodes in the dealer's rooms
of small regional science fiction conventions. Aside from the negative
PR, there was the sheer cost of wasting billable lawyer-hours on
something that couldn't possibly make you any money.
Then came
the internet, which introduced two critical changes: it made it easier
for folk-users of copyright to find each other and spread their
creations and copies farther than ever, and it made it easier for
enforcers to find them and threaten them, especially once tools like
the "notice and takedown" regime in the European Union Copyright
Directive and the US Digital Millennium Copyright Act came on the scene.
YouTube dance
Now
you have billionaire media empires behaving as though parents should
get a licence for a Prince song before they upload a YouTube video of
their adorable toddler dancing to it.
They are also acting as
though fan fiction writers should be applying for a licence too - along
with karaoke singers, would-be painters and, yes, the OAP picnickers
who've uploaded the shakycam video of last weekend's knees-up in the
church basement.
This is a genuinely radical idea: individuals
should hire lawyers to negotiate their personal use of cultural
material, or at least refrain from sharing their cultural activities
with others (except it's not's really culture if you're not sharing it,
is it?).
It's also a dumb idea. People aren't going to hire
lawyers to bless the singalong or Timmy's comic book. They're also not
going to stop doing culture.
New regime
We
need to stop shoe-horning cultural use into the little carve-outs in
copyright, such as fair dealing and fair use. Instead we need to
establish a new copyright regime that reflects the age-old normative
consensus about what's fair and what isn't at the small-scale,
hand-to-hand end of copying, display, performance and adaptation.
A
diverse and extremely sensible group of people are doing just this: the
Access to Knowledge (A2K) treaty is a proposal from the World
Intellectual Property Organization (WIPO) to set out the rights and
responsibilities of archivists, educators and people who provide access
to disabled users of information.
The drafting group - which is
open to the general public - includes representatives of creators'
groups (tellingly, no one from the corporations that buy creators'
works have taken part), disabled rights groups, technical standards
bodies, civil rights groups, even medical rights groups like Médecins
Sans Frontières.
A2K is at the top of the WIPO agenda. It's the first breath of sanity in the copyright debate. Let's hope it's not the last one.
Paulo Coelho, the best-selling author of "The Alchemist", is using
BitTorrent and other filesharing networks as a way to promote his
books. His publishers weren't too keen on giving away free copies of
his books, so he's taken matters into his own hands.
Coelho's view is that letting people swap digital copies of his
books for free increases sales. In a keynote speech (embedded below) at
the Digital, Life, Design conference in Munich he talked
about how uploading the Russian translation of "The Alchemist" made his
sales in Russia go from around 1,000 per year to 100,000, then a
million and more. He said:
In 2001, I sold 10,000 hard copies. And everyone was
puzzled. We came from zero, from 1000, to 10,000. And then the next
year we were over 100,000. […]
I thought that this is fantastic. You give to the reader the
possibility of reading your books and choosing whether to buy it or
not. […]
So, I went to BitTorrent and I got all my pirate editions… And I created a site called The Pirate Coelho.
He's convinced — and rightly so — that letting people download free
copies of his books helps sales. For him the problem is getting around
copyright laws that require him to get the permission of his
translators if he wants to share copies of his books in other languages.
So is Coelho just seeding torrents of his books? That's just the
beginning. He took it one step further and, as quoted above, set up a
Wordpress blog, Pirate Coelho,
where he posts links to free copies of his books on filesharing
networks, FTP sites, and so on. He says it had a direct impact on sales:
Believe it or not, the sales of the book increased a lot thanks to the Pirate Coelho site…
In his speech he talks about how the Internet is changing language
and books, and how online "piracy" and BitTorrent have helped him not
only be more widely read, but also sell more books! It's a must watch.
The record industry got a surprise when it subpoenaed the University of Oregon in September, asking it to identify 17 students who had made available songs from Journey, the Cars, Dire Straits, Sting and Madonna on a file-sharing network.
The surprise was not that 20-year-olds listen to Sting. It was that the university fought back.
Represented
by the state's attorney general, Hardy Myers, the university filed a
blistering motion to quash the subpoena, accusing the industry of
misleading the judge, violating student privacy laws and engaging in
questionable investigative practices. Cary Sherman, the president of
the Recording Industry Association of America,
said the industry had seen "a lot of crazy stuff" filed in response to
its lawsuits and subpoenas. "But coming from the office of an attorney
general of a state?" Mr. Sherman asked, incredulous. "We found it
really surprising and disappointing."
No one should shed tears
for people who steal music and have to face the consequences. But it is
nonetheless heartening to see a university decline to become the
industry's police officer and instead to defend the privacy of its
students.
The recording industry may not be selling as much music
these days, but it has built a pretty impressive and innovative
litigation subsidiary.
In the past four years, record companies
have sued tens of thousands of people for violating the copyright laws
by sharing music on the Internet. The people it sues tend to settle,
paying the industry a few thousand dollars rather than risking a
potentially ruinous judgment by fighting in court.
"People get
pushed into settlements," said Fred von Lohmann, a lawyer with the
Electronic Frontier Foundation, a civil liberties group. "The Oregon attorney general is showing what a real fight among equals would look like."
In his filings, Mr. Myers claimed to be looking for a middle ground.
"Certainly it is appropriate for victims of copyright infringement to
lawfully pursue statutory remedies," Mr. Myers wrote last month. "However, that pursuit must be tempered by basic notions of privacy and
due process."
"The larger issue," Mr. Myers said, "is whether plaintiffs' investigative and litigation strategies are appropriate."
Mr.
Myers questioned the tactics of MediaSentry, an investigative company
hired by the recording industry. He said the company seemed to use data
mining techniques to obtain "private, confidential information
unrelated to copyright infringement." He added that it may have
violated an Oregon criminal law requiring investigators to be licensed.
A
spokeswoman for MediaSentry said it collected only information that
users of peer-to-peer networks make available to anyone who cared to
look. She had no comment on the licensing law.
The record
companies, in an apoplectic response in court, accused the university
of having "a political agenda." They said that it was protecting people
who had broken the law and that it was not entitled to raise privacy
and due process arguments on behalf of its students.
"Hundreds of
universities and dozens of commercial Internet service providers have
responded to the exact same subpoenas," the record companies' lawyers
wrote.
James Gibson, a law professor at the University of Richmond,
said Mr. Myers's arguments had been raised in other cases and had met
with little success. Still, Professor Gibson said, "it's significant
that a public university and its state apparatus is standing up to the
R.I.A.A."
Mr. Sherman, of the recording industry association,
predicted that Mr. Myers's motion would fail and said the industry's
litigation strategy had worked well.
"The litigation program, as
controversial as it is often written up to be, has been very successful
in transforming public awareness," Mr. Sherman said. "Everybody used to
think this was legal. Now everybody knows it's illegal."
Indeed,
the program seems to be expanding, and universities are being asked to
play an even bigger role. In February, the association started asking
universities to identify students suspected of file sharing and to pass
along "prelitigation letters" to them. The association says it has
provided some 4,000 such letters to more than 150 colleges and
universities. The letters offer the students what they call bargain
settlements of about $3,000 if they act fast, by punching in a credit
card number at www.p2plawsuits.com.
"The 'reduced' settlement amount, in other words, represents the record
companies' savings from cutting out the middleman -- our justice
system," the Electronic Frontier Foundation said in a recent report.
The
universities are under no legal obligation to pass the letters along,
but most do. Those that don't typically receive subpoenas like the one
issued to the University of Oregon.
At least one other public
university in Oregon has cooperated with the industry. In 2004,
Portland State responded to a record industry subpoena by blandly and
efficiently providing the names, addresses, phone numbers and goofy
e-mail addresses of two roommates. The university said it could not say
which student's computer was involved, so it fingered both of them.
"We
definitely felt betrayed," said Karen Conway, the mother of one of the
roommates. "They readily turned over private information without
notifying us. They placed responding to a legal subpoena far above a
student's right to privacy."
Though her daughter Delaney was
blameless, the record companies' lawyers demanded $4,500. It was, Ms.
Conway said, "basically extortion," and the family was forced to hire a
lawyer. The case against Delaney Conway was eventually dropped. Her
roommate settled.
Mr. Sherman said the University of Oregon
should disclose what it knew and let the legal system sort out the
rest. "It's no different than us subpoenaing Verizon," he said.
But
an institution of higher education has different aspirations and
obligations than an Internet service provider, which is why Portland
State's actions are so unsettling. The University of Oregon's efforts
may be doomed, but there is something bracing about them nonetheless.
All
the university is saying, after all, is that the record industry must
make its case in court before the university will point a finger at one
of its own.
In "File-Sharing Students Fight Copyright Constraints" (Education
page, Oct. 10)*[see below], Students for Free Culture is portrayed as an
organization that promotes the illegal consumption of music and movies
free of cost. In fact, we deeply believe that authors and creators
should be compensated for their work, and we are eager to promote ways
to do so in an environment where the world can build upon their
creations.
For example, an author may release a book under a
free copyright license, spurring on sales, or a band may allow fans to
share and remix their songs, selling out concerts as a result.
We
stand for a culture where everyone has the right to participate and
where works are made available for all to legitimately access, share
and remix. This is a culture that is "free as in speech" — not
necessarily one that is free of charge.
When Zachary McCune, a student at Brown, received an e-mail message
from the university telling him he might have broken the law by
downloading copyrighted songs, his eyes glazed over the warning and he
quickly forgot about it. "I already knew what they'd say about
file-sharing," he said. "It's become a campus cliché."
But the next day, he realized the message had an attachment from the Recording Industry Association of America,
a trade group that is coordinating legal efforts by record companies to
crack down on Internet piracy. The attachment told Mr. McCune he faced
a lawsuit with potential fines of $750 to $150,000 for every illegally
downloaded song.
"I was stunned by the extremity of the
punishment for taking songs I could have bought for a few cents," he
said. "It seemed grossly out of proportion."
Twelve Brown
students received these letters; Mr. McCune ended up paying $3,000 to
settle the claim. But the experience made him interested in changing
intellectual property regulations. Last spring he co-founded Brown's
chapter of Students for Free Culture, a national organization sprouting
up on college campuses that advocates loosening the restrictions of
copyright law so that information — from software to music to research
to art — can be freely shared.
"The technology has outpaced the law," said Mr. McCune, who is now a sophomore.
Established
at Swarthmore College in 2004, the group has chapters at more than 35
universities across the country. "We will listen to free music, look at
free art, watch free film and read free books," reads its manifesto,
posted on its Web site, freeculture.org. "We refuse to accept a future of digital feudalism."
Members
assert that the Internet has made it necessary to rethink copyright
law, and they talk about the group's goals with something like the
reverence that earlier generations displayed in talking about social or
racial equality.
"People wonder why college students aren't
rallying more around the Iraq war," Mr. McCune said. "If there were a
draft, we probably would be. Students are so quick to fight for this
cause because we're the ones bearing the burden."
Cory Doctorow,
co-editor of the popular technology blog Boing Boing, said the
recording industry lawsuits were not "scaring students away from
file-sharing, but scaring them into political consciousness." Last
year, Mr. Doctorow was an adviser to the Students for Free Culture
chapter at the University of Southern California while teaching a course on the history of copyright law.
Opposition
to the music industry and its efforts to protect copyrights often
dominates discussions on campuses. Chapters have organized
demonstrations in front of major record stores and held "iPod liberation" parties where students have downloaded software together that makes it possible to swap songs.
Many
chapters have held forums to discuss legal decisions and developments
in copyright, frequently debating what it means to "steal" something as
amorphous as a digital file.
But in recent months, the group
has made a point of branching out beyond music copyrights. At its first
national conference, held at Harvard
in May and attended by more than 130 people, speakers gave
presentations on topics like enhancing Internet access in impoverished
countries, and loosening patent regulations for pharmaceutical drugs.
"File-sharing
may have brought these issues to public consciousness, but it’s not our
only inspiration," said Elizabeth Stark, founder of Harvard's Free
Culture group.
Some chapters have rallied around the Federal
Research Public Access Act, a bill that would make it mandatory for
government-financed research to be published in online journals, free
to the public.
The movement is not without its critics. Early on,
Ethan Zuckerman, a research fellow at the Berkman Center for Internet
and Societyat Harvard Law School, said the group should pick more
consequential problems to rally around than access to music.
"Part
of what's so tricky about this movement is trying to pry apart access
to entertainment from some of the more serious issues, like access to
medicine," he said. "The movement does itself a disservice by blending
all the issues together."
There are student dissenters, too. At
Brown, David Harrington, a senior who did not join the new chapter,
said he sometimes felt like the "grumpiest, curmudgeonliest old man in
the conversation" for understanding the position of the recording
industry.
"I'm a musician, so I'm thinking, how are these
artists going to earn a living?" he said. "The technology makes
stealing so easy that it's hard to tell whether this debate is about
ethics or just convenience."
Jonathan Lamy, a spokesman for the
recording industry group, said he had never heard of Students for Free
Culture. But he said his group did not plan to let up on its efforts to
protect music copyrights.
"Some say illegal downloading
couldn't possibly hurt successful artists, which may very well be
true," he said. "But we rely on a few successful artists to compensate
for all the new, risky ones who don’t recoup what’s invested in them."
Propelled by their victory, the students started the group, which they named after the 2004 book "Free Culture" by Lawrence Lessig,
a professor at Stanford Law School. The book applies principles from
the so-called free software movement — the idea that computer users
should have the liberty to copy, distribute and modify software as they
wish — to all aspects of culture. Too many copyright restrictions, Mr.
Lessig argued, dampen creativity.
"I wouldn't say it's a bible, but we do often reference it," said Fred
Benenson, 23, president of the group and a master's student in N.Y.U.'s
Interactive Telecommunications Program. His group has held lectures,
protests and an art exhibition, with all work licensed under Creative
Commons, a nonprofit organization that allows authors to change
copyright terms from "All Rights Reserved" to "Some Rights Reserved" or "No Rights Reserved."
There are around 15 regular members in
N.Y.U.'s chapter, Mr. Benenson said, and the mailing list includes more
than 600 people. He said he and others were working on composing a list
of the top 10 universities with the most restrictive policies for
licensing scholarly research, software and student work.
"Students
want to know which universities are going to take away their freedom on
the Internet," he said. "The academy is meant to be this wonderful,
separate part of the world that exists for the sharing and reusing of
culture."
