Tag Archives: copyright

IP enforcement, spying, and reasonableness

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Today’s posts have touched on who should enforce IP rights and what that that enforcement should look like.  Recent comments by Ed Black, President & CEO of the Computer & Communication Industry Association (CCIA — Wikipedia backgrounder), address both of these issues in the context of the White House’s Intellectual Property Enforcement Coordinator’s recent white paper:

The government has shown how its zeal leads to carelessness [previously covered here] in its unprecedented efforts to widely seize domain names for IP enforcement, which ICE undertook this year. Sites were wrongfully shut down based on allegations the user was engaged in criminal conduct deemed lawful by their courts. We are concerned the same low threshold will be used in making decisions to spy on U.S. citizens.

Some in Congress and the White House have apparently decided that no price is too high to pay to kowtow to Big Content’s every desire, including curtailing civil liberties by expanding wiretapping of electronic communications. Even the controversial USA PATRIOT Act exists because of extraordinary national security circumstances involving an attack on our country.  Does Hollywood deserve its own PATRIOT Act?

This new punitive IP agenda follows just weeks after dictators spying on citizens online was the lead story in every major newspaper.  Perhaps the obvious hypocrisy caused someone to decide to wait to announce the U.S. goal of expanding our government’s powers to spy online.   A screenwriter could almost market this plot as a comedy – if it weren’t so serious.

Maybe we should be grateful our government only wants to make streaming a song or movie a felony with potential prison time as punishment.  What’s next corporal punishment?

This is the latest indication of the extent to which the content industry has infiltrated this administration and managed to turn the Administration’s IP agenda into a policy which protects old business models at the expense of consumers, citizens’ rights and our most innovative job creating industries.

To be sure, Mr. Black speaks as the head of a trade group, advocating for his clients’ interests.  Nonetheless, we’ve covered advocates for the content industry and the broadband industry before.  I think it is important to remember (1) that both sides of the IP debate can make sweeping — sometime unprovable — assertions and (2) there are usually two sides to every story.

Broadly speaking, I have to agree with Mr. Black’s concern with the disconnect between official condemnations of “dictators spying on citizens online” and “the U.S. goal of expanding our government’s powers to spy online.”  As illustrated only a few months ago, the line between vigorous copyright enforcement and totalitarianism can be a thin one indeed.  As Harold Feld of Public Knowledge put it recently over on the LA Times:

In the virtual world, the real but mundane problem of shoplifting undergoes a Hollywood-esque transformation into “piracy,” causing the entertainment industry and folks in Washington to lose all perspective. Consider that Rep. Howard Berman (D-Valley Village) proposed a bill in 2002 to allow record companies to hack into your computer to search for illegal downloads. And how did Berman justify the equivalent of an electronic strip search? “There is no difference between pocketing a CD in a Tower Records and downloading copyrighted songs from Morpheus,” Berman told the crowd of aghast tech executives. “Theft is theft.” True, theft is theft. But I suspect Berman would have objected to an amendment allowing Tower Records to break into your home to recover a stolen CD.

Whatever you think of Mr. Black’s rhetoric — even hyperbole — I think most people would agree that truly draconian IP enforcement is not worth the terrible price it exacts.  Now we just need to reach a consensus on exactly how much is too much…

LA piracy debate

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The LATimes just posted the second round of its “piracy Dust-Up” (you can read the first round here), and I thought I’d pull two quotes.

The first is from Harold Feld, the “legal director of Public Knowledge, a Washington-based digital rights advocacy group”, who points to the hidden costs of copyright enforcement:

It’s easy to understand 9 million illegal downloads of “The Social Network,” and hard to understand how the new regulations Sony wants will raise the price of your broadband subscription and your iPod while keeping you from doing cool things on your iPhone.  As the crowning insult, there is no evidence that these new rules would actually make a dent in the illegal downloading problem, or that marginally reducing illegal downloads would translate into an increase in legal sales.

The second is from Andrew Keen, “the author of the upcoming Digital Vertigo: An Anti-Social Manifesto...[and] an advisor to Arts and Labs, a coalition of entertainment and technology companies”:

Rather than worrying about doing “cool things on our iPod,” shouldn’t we instead be trying to craft legislation guaranteeing that 21st century artists have the opportunity to make a living selling their books, their recorded music and their movies?

Here’s the thing that I don’t understand:  in 2006, Keen accused Larry Lessig of being “an intellectual property communist”.  Yet if I understand this debate correctly, it is Keen who wants to focus on ways of “guaranteeing that 21st century artists have the opportunity to make a living” and who is unconcerned whether or not people can do “cool things on [their] iPod[s]”.

Last time I checked, “guaranteeing” certain people paychecks is strongly associated with communism.  It is innovation of the sort that allows people to “do cool things on [their] iPod[s]” that smacks of the capitalism Keen so implicitly embraces.

Keen will no doubt object that I mis-characterize his view insofar as he “only” seeks opportunity, not outcome.  This objection is fair enough — so far as it goes.  But it’s a tricky objection to maintain credibly when it is your opponent (here, Feld) who is calling for balance and proportionality in infringement penalties and you (Keen) who is engaging in the take-no-prisoners logic that “we surrender to the online thieves by treating piracy as a ‘cost of doing business'”.

Mr. Keen, accepting business loses due to shoplifting (in the physical realm) or piracy (in the digital realm) is not “surrender”; it is a fundamental recognition of reality.  Failure to recognize this reality seriously undermines your argument — as does your claim that you only seek “opportunity” when you so clearly will be satisfied only by enactment of one particular outcome.

Who will enforce IP laws?

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Ars Technica and TorrentFreak are reporting that Australian ISP iiNet (Wikipedia backgrounder) recently released a policy report calling for changes in the way that IP laws are enforced:

The ‘Hollywood solution’ (in very simple terms) involves the employment of private detectives, hired by content owners, to trawl the public internet and gather information. The content owner uses this information to generate notices which are sent to internet service providers. The notices demand that the ISP should terminate the service of a customer subsequently determined by the ISP (not the content owner).

Naturally, ISPs find this approach unattractive and unsatisfactory, to say the least.

Rather than merely passively complaining about Hollywood’s solution, however:

iiNet has developed a model which it believes addresses ISP concerns and is likely to be far more effective. We believe it to be attractive to all participants and one which offers a sustainable strategy that includes an impartial referee, for resolution of disputes between the parties and the issue of penalties to offenders.

Here is iiNet’s proposal:

1.    A content owner will carry out their own detective work and identify an offending computer making unauthorised copies of their content available for sharing via (typically) bit-torrent software. This will provide them with an ‘IP Address’ that can be traced by the issuing ISP to a specific internet service.

2.    The independent body will determine whether the evidence meets a test of ‘cogent and unequivocal evidence’.

3.    IP addresses can be provided to an independent body who is able to identify the issuing ISP and ask that ISP for contact details for the service account holder. The ISP provides those matching contact details to the independent body.

4.    Using those contact details the independent body can issue notices to the account holder informing them that they had been detected making unauthorised copies available, provide educative information, advise the consequences that may follow continued behaviour and ask the account holder to ensure that the behaviour stops.

5.    The independent body keeps records of the notices and may modify the notice for a repeat infringer, or seek further sanctions. Some of those sanctions may include fines, court charges or changes to the internet service.

6.    Consumers who believe the allegations are incorrect will be able to appeal the notice to the independent body. These appeals and/or complaints would be dealt with by the independent body.

7.    Consumers who believe an insecure wireless access (or other technical issue) may be involved, will be referred, by the independent body, to their ISP for technical assistance.

As I read the proposal, it seems like iiNet is primarily trying to do two things:

  1. Remove itself as arbiter of IP-related disputes; and
  2. Lower the transaction costs involved in full-blown litigation by setting up a quicker (and cheaper?) arbiter of disputes.  (Perhaps they have something in mind like the Uniform Domain-Name Dispute-Resolution Policy, which administratively resolves certain types of domain name disputes without having to go to court.)

With respect to #1, I agree with iiNet.  ISPs are ill-positioned to adjudicate IP disputes, especially since the cheapest solution (and thus a compelling business model) is simply to comply with any content owner’s request, no matter how tenuous the underlying legal cases.

With respect to #2, however, I have serious doubts.  iiNet’s proposal could be read as an ISP’s attempt to shift online infringement clearly from a malum in se crime (crimes that are inherently wrong, like murder) to a malum prohibitum crime (crimes that are wrong by statute, like minor speeding violations).  Acts that are malum prohibitum generally require less evidence for conviction (e.g., strict liability), but this is supposedly outweighed by lesser penalties and less social censure (e.g., fines for speeding are relatively small and do not carry the social opprobrium of murder).

Here’s the problem:  current copyright statutes don’t have the malum prohibitum “balance” built in.  While there may be lesser social censure for copyright infringement than for other crimes, it is hard to think of many non-violent crimes with higher penalties.  U.S. law assesses damages as high as $150,000 per infringing act, and there are never-ending proposals to increase penalties.  Even if such penalties seem grossly disproportionate to the underlying crimes and raise serious constitutional concerns regarding due process and punitive damages, they nonetheless are “the law” as it exists on the books.

Given the reality of enormous statutory penalties for infringement, streamlining copyright enforcement procedures could lead to disaster.  As a policy matter, it’s one thing to argue for streamlined procedures (i.e., fewer due process protections) in exchange for lower penalties.  Under certain circumstances, that can be a reasonable policy tradeoff.  But it’s a dangerous thing to argue that every content owner in the world should have a fast, easy way to sue individuals up for $150,000.  Copyright trolls like Righthaven exist even in a world with the due process protections of courts; it’s truly frightening to imagine how many new trolls will arise if the potential payoffs remain the (astronomical) same but the bar for suit is set even lower.

To be fair, iiNet appears to recognize this danger and suggests:

Infringements can be ranked as minor (say, single instances), major (say multiple instances of different files) or serious (at a commercial level). Each level having prescribed penalties….A scale of fines can be established, relative to the economic loss represented, and demerit points could also be awarded in line with the severity of the infringements.

Nonetheless, I fear that their report does not highlight just how pivotal such gradation and balancing would be to any implementation.

WIPO points the way forward

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Intellectual Property Watch is reporting on a recent speech by the World Intellectual Property Organization (WIPO–Wikipedia backgrounder) Director-General Francis Gurry on the future of copyright law.  You can view the full speech on YouTube here (or here, if you want to skip the pleasantry-preliminaries), and you can read it here.

Gurry wastes no time in touching on the central issue of copyright policy:

How can society make cultural works available to the widest possible public at affordable prices while, at the same time, assuring a dignified economic existence to creators and performers and the business associates that help them to navigate the economic system?

Surprisingly, Gurry answers not by talking about retrenchment and enforcement but balancing competing interests:

It is a question that implies a series of balances: between availability, on the one hand, and control of the distribution of works as a means of extracting value, on the other hand; between consumers and producers; between the interests of society and those of the individual creator; and between the short-term gratification of immediate consumption and the long-term process of providing economic incentives that reward creativity and foster a dynamic culture.

Digital technology and the Internet have had, and will continue to have, a radical impact on those balances. They have given a technological advantage to one side of the balance, the side of free availability, the consumer, social enjoyment and short-term gratification. History shows that it is an impossible task to reverse technological advantage and the change that it produces. Rather than resist it, we need to accept the inevitability of technological change and to seek an intelligent engagement with it. There is, in any case, no other choice – either the copyright system adapts to the natural advantage that has evolved or it will perish. [emphasis added]

Perhaps Lawrence Lessig’s speech at WIPO last year has had a bigger effect than expected!  Gurry even outlines “three main principles that should guide us in the development of a successful policy response”:

  1. “[N]eutrality to technology and to the business models developed in response to technology.”
  2. “[C]omprehensiveness and coherence in the policy response.”
  3. “[M]ore simplicity in copyright.”

Gurry ends with this observation:

Future generations are clearly going to regard many of the works, rights and business agents that we talk about as cute artefacts of cultural history, much as the vinyl record has become in a very short space of time. The digital work is going to change dimensions. We see that happening with user generated content. We see it happening also with 3D printing or additive manufacturing, where the digital file is the manufacturing technology and factory. This is the realm of the blue sky and I hope that this Conference can start to develop the tools for exploring that sky.

Update: I reference this post in the comments section of a recent Copyhype post. Suffice it to say that there’s a lot of heated rhetoric on both sides; I think Gurry’s speech does a good job a forging some reasonable middle ground.

Fair comment

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A mea culpa note: I originally wrote this post about a week ago.  At that time, I thought that SF360 was moderating their comments and not approving mine, for reasons that I implied might have something to do with the policy position of my remarks.  I was wrong — there was an innocuous, technical reason that my comment did not post.  Thanks to SF360’s editor Susan Gerhard for helping me get my comment up, and my most sincere apologies to her and everyone at SF360.  I made a mistake, and I thank Susan for being so gracious in the way that she corrected me.

***

I made a comment recently on a SF360 article titled “What you Need to Know to License Music for Film”.  Here is the relevant bit of the article that I was addressing:

Licensing can be a complicated, frustrating process. Yet, the copyright owners have exclusive rights over the music and using the music in a film will generally not be considered a fair use. Therefore, to avoid litigation a filmmaker must acquire the necessary licenses before including any music in their film. [emphasis added]

As I wrote in my comment, this characterization of fair use is, at best, highly misleading:

George [Rush, who wrote the article] says that “the copyright owners have exclusive rights over the music and using the music in a film will generally not be considered a fair use.”  This is simply not true; there are a lot of uses of music in films — particularly documentary films — that can be considered fair use.  There is a Documentary Filmmakers’ Statement of Best Practices in Fair Use, and there are even companies that issue errors and omissions insurance based on fair use claims.

Before using any music in your film, you should definitely seek legal counsel.  But don’t assume that you *always* have to license music.  Despite the grumblings of music labels, fair use still exists.

George is right that the issues are complicated and that sometimes hiring a professional (like him) to help negotiate various music licenses is the proper way to proceed.  But that’s not always true.

On “shooting creatives” and “winning eventually”

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Copyright law is everywhere these days, even in the popular (i.e., non-specialized) press.  And it’s in the pop press where things get interesting:  all of the legal niceties that IP legal specialists drone at each other quickly get reduced to bracing, real-world takeaways.

Take this recent piece by Roger Moore, a movie critic for the Orlando Sentinel, who makes some unintentionally wonderful arguments for copyright reform:

Orlando attorney John Rizvi of Gold & Rizvi, P.A., specializes in [intellectual property] law, and he spends part of his time shooting down what creative people think they know about copyright and that nebulous concept known as “fair use.”

Stop right there.  Did he say “shooting down” and “what creative people think” in the same sentence?  This already sounds like promoting science and the useful arts to me.

Sigh.  What else?

Moore also quotes from Marshall Leaffer, a “Distinguished Scholar in Intellectual Property Law at Indiana University and the author of ‘Understanding Copyright Law'”:

Leaffer cited as an example [of fair use in action] a conceptual artist who made and sold photographs of Barbie dolls posed in provocative ways. He was just doing a parody, right? He figured he’d be safe.

“Mattel sued him,” Leaffer said, referring to the doll’s maker. “He won. Eventually. But it cost him a lot of money.”

Let me reemphasize what Leaffer skips right past.  The artist won. Using Barbie was a fair use.  But the artist only won “eventually”.  And “it cost him a lot of money”.

What can we take away from Moore’s article?  I humbly submit we should reform the monstrocity that is U.S. copyright law.  Why?

  1. We need to stop shooting down creative people.
  2. We need to make sure that artists acting well within their rights simply win, not “eventually” and after years of financially ruinous litigation.

The spin-to-truth ratio is rising

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Mike Masnick over at TechDirt pointed me over to a “study” put out by Rick Falkvinge, a member of the Pirate Party, who claims that

for every job lost (or killed) in the copyright industry due to nonenforcement of copyright, 11.8 jobs are created in electronics wholesale, electronics manufacturing, IT, or telecom industries — or even the copyright-inhibited part of the creative industries.

Masnick has at least as many problems with Falkvinge’s methodology as I do, but the content industry plays this game too.  See this example of similarly muddled reasoning over at The Copyright Alliance Blog, which attempts to connect almost 14 million illegal downloads with the 2,000 production jobs in L.A.  Are readers really supposed to think that Hollywood blockbusters are imperiled?  If so, the Alliance Blog probably shouldn’t have picked as its example a movie that’s made over $800 million worldwide.  (At the box office alone.)

I think Masnick’s analysis is spot-on:

I don’t think anyone actually believes [Falkvinge’s] numbers are accurate. But it’s using the same basic methodology, assumptions and thought processes behind the studies in the other direction. You can also, obviously, claim that Falkvinge is biased. He is. But is he more biased than the entertainment industry legacy players who do the other studies? It seems clear that the industries are likely to be more biased, since they have billions of dollars bet on keeping the old structures in place. I think both studies are probably far from accurate in all sorts of ways, but if you’re going to cite the entertainment industry’s claims based on this kind of methodology, it seems you should also have to accept these claims. [emphasis added]

Numbers can be powerful weapons.  But it helps if they actually mean something and aren’t simply empty rhetorical flourishes.

Live event tickets and the first sale doctrine

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Daniel Indiviglio over at The Atlantic discusses the potential for eliminating all secondary markets in live event tickets:

If you have ever sold even[t] tickets through the online resale market StubHub, then you may have received an e-mail last week about the dangers of paperless tickets. It cautions that companies “like Ticketmaster” are moving to restrictive paperless ticketing systems, which could kill the secondary market for tickets….According to the Fan Freedom Project, a group speaking out against this product that StubHub links to in its email, there are essentially two kinds:

Restricted transfer (closed-loop system): Primary ticketing agencies have sole control over sales, restricting the transfer of tickets and allowing them to be resold only on their own proprietary exchanges – and with their price restrictions which are often unrelated to the market value of the ticket.

Prohibition of ticket transfer: You purchase paperless tickets with a credit card and must provide the same credit card and a photo ID at the event venue. A swipe of the credit card at the gate produces a slip confirming the location of the reserved seat. The ticket cannot be transferred, sold or given away to another consumer.

Hmm…this sounds suspiciously like book publishers’ plans to undermine libraries and software companies’ recent progress in eliminating the secondary market for software.  Doesn’t anybody want to actually own anything anymore?

Wired’s David Rowan certainly thinks renting rather than owning is the wave of the future, as I discussed in a previous post.  However, Rowan’s analysis focused on the “idling capacity” of personal assets (e.g., a lawnmower that you only use once a week) and how the Internet is helping individuals coordinate more efficient arrangements (e.g., sharing that lawnmower among a wide group of “neighbors”).  The idea here is to increase asset utilization and thus maximize the consumer surplus.  (To round off the example:  lawn mower manufacturers may be upset, but the economy is better off overall since resources are freed for more productive uses than making a ton of lawnmowers that will only be used for 2 hours per week.)

In contrast, eliminating secondary markets in tickets, books, and software only benefits the producer surplus.  It allows de facto monopolies (like Ticketmaster for live event tickets) and copyright monopolies (like those enjoyed by publishers of books and software by virtue of their rightful copyrights) to extend those monopolies over the entire market (since they no longer have to compete with resold tickets, used books, and previously owned software).  Under these circumstances, offering consumers something less than full ownership in their tickets, books, and software doesn’t benefit the economy — it simply increases monopoly, expanding inefficiency and the deadweight loss triangle.

For copyrighted works, the first sale doctrine was supposed to prevent owners from eliminating secondary markets, but that doctrine is under judicial attack.  As for tickets, it remains to be seen whether established industry players like Ticketmaster will be able to further their monopolies by choking off the secondary market.  But it doesn’t look good for consumers — or economic efficiency.

40,000 ways to file a lawsuit

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How do you file lawsuits against 40,000 people you think are infringing your copyrights?  Sounds like the answer is “one at a time”:

Thousands of unnamed “John Does” in P2P file sharing lawsuits filed in California, Washington DC, Texas, and West Virginia have been severed, effectively dismissing over 40,000 defendants. The plaintiffs in these cases must now re-file against almost all of the Does individually rather than suing them en mass.

Let’s unpack this.  Copyright owners often don’t know the names of people they suspect of using the Internet to infringe their works — they only know that such-and-such an Internet protocol address allegedly accessed a pirated file of their content.  In order to match that address with a particular person, they often have go to court to compel an Internet service provider to tell them what account/person is associated with that address.  They can only sue individuals once they have actual names.

Copyright owners have been in the habit of suing thousands of “John Doe” IP addresses in one lawsuit and then using those names to settle quickly:

These rulings may have a significant impact on the copyright trolls’ business model, which relies on being able to sue thousands of Does at once with a minimum of administrative expense. The cost of filing suit against each Doe may prove prohibitively expensive to plaintiffs’ attorneys who are primarily interested in extracting quick, low-hassle settlements.

In my view, courts’ rejection of this tactic brings some procedural balance back to copyright infringement lawsuits.  Copyright owners often sue alleged infringers in courts that are convenient for the owner, and this can effect a substantial injustice.

Perhaps a concrete example is in order.  Let’s assume an individual defendant that (1) is unquestionably innocent and (2) lives in Iowa.  Let’s further assume the plaintiff copyright owner is a movie studio based in California who wants to sue her in Los Angeles.  As a practical matter, this defendant has a difficult choice.  Litigation is always inconvenient and expensive, but hiring a California-based attorney from Iowa and flying out to Los Angeles is probably more than a typical defendant can afford.  Under these circumstances, she may pay the studio a $2,000 settlement even though she’s innocent just to make the matter go away.  After all, it’s pretty easy to burn through $2,000 with a lawyer and travel expenses.

Given this procedural tilt favoring copyright owners, it seems only fair that they be required to file their suits one at a time.  If a copyright owner doesn’t think her claim is even worth a filing fee, she probably shouldn’t be filing that lawsuit in the first place.  Copyright was, after all, designed “To promote the Progress of Science and useful Arts”, not to provide extra-judicial windfall profits to content owners.

Thanks to Matt Berntsen for the original link to the EFF write-up.