(entry last updated: 2003-07-02 20:53:55)
the future of entertainment: music
with Fred von Lohmann, Les Valdasz, Charlie Nesson & Jonathan Zittrain
Z: Digital music as a case on the subject. An agenda; (a) Defending the current business model and (b) toward a new business mode (see the full outline below)
But first, introductions: Fred von Lohmann of the EFF. An unreconstructed status quo-ist – the digital world should be as free as the real world. Les Valdasz of Intel, his fifteen minutes of fame, telling Fritz Hollings that what Fritz wanted (in the SSSCA/CBDTPA) was not what Intel wanted. Charlie Nesson: I am not a status quo-ist. Although I can see all the arguments that Terry makes, the problems of getting from here to there seem immense, and some very powerful interests are going to have to be defeated or deflected to get to the changes that Terry considers.
Z: Fred, should the record industry get the same rights in the digital world as they do in the real world.
Fred: Careful – the goal should be to protect the rights of the artists, but not necesarily that of the recording industry. They did this in the past, but there’s no reason that they should get the digital franchise too. I’m favorably disposed toward Terry’s plan, but I don’t see that we should protect Sony, EMI, etc.
Z: But aren’t companies people too? Don’t these firms have rights that are being violated.
Fred: In copyright law, yes. But the scope of Title 17 has expanded as a technological accident because computers are about copying. It may be that the law is being violated, but is it really the case that more music is being listened to, or that artists are getting paid less?
(Black letter infringements?) The industry purports that each infringement means a loss of income. An examination of the CD business suggests that there is more to the downturn than copyright infringement. If we turn to movies, we aren’t even seeing losses yet.
Z: Charlie, you’re a realist. What do you think of Fred’s idea.
Charlie: First a question: If you could end p2p without harming people and the world became law abiding, would you do it?
Fred: No – I would rather change the law than to impose legality – shove things into a box that no longer fits them. That doesn’t mean that I’m in favor of infringement, but the law should change with the people.
Z: can we sue the problem into submission, Charlie? C: Yes, that would certainly be part of that. Z: They have gone after universities, and now after the end users.
Charlie: Yes, with the Verizon decision, these companies can now get information. Z: Were you really surprised that Verizon lost, Fred? Fred: Not really
Charlie: So, getting back to the suit game. A clever watching of the network, combined with a Verizon subpoena to see who develops new copies, should mean that a suit could be used to stifle new releases of rips to KaZaA.
Fred: No way it would work. Between international jurisdiction and the advance of technology, this strategy will suffer, particularly in the face of the EU privacy directive. Plus, there are now reports of proxy servers that
Z: Yes, there’s Blubster – and another technology – Earthstation
Les: Go to a public wireless and operate from there – no one will find you.
Z: What if I were wardriving and uploaded that way, Charlie?
Charlie: Uhhhh – let’s go on to the next topic!
Fred: P2P will evolve faster than the strategies can evolve, but in the interim there will be a ton of collateral damage – consider the Verizon decision which raises a set of privacy concerns. And even though Verizon is trying to mitigate this, they are not legally required to make that effort.
Charlie: Let’s run with that – as a prt of the RIAA, I don’t want to see that anyone can exchange bits without being able to surveille – the end to end anonymity is at risk, right?
Fred: The collateral damage is the real story here. No one’s going to stop sharing.
Z: Come on – a college student can be stopped in his tracks with a threatening letter
Fred: No way – war driving among students who have lots of time means that there will be no stopping it. And the music industry might get even more damage brought about to achieve their ends while ruining the network.
Z: OK – Les, can we build some digital locks that preserve the net and preserve the music industry
Les; I don’t think it can be done solely via technology. The cat and mouse game will continue without an economic foundation for real change.
Z: Won’t TCPA solve this for us – trustedcomputing.org?
Les: Well, it’s a machine that is supposed to make sure that you can keep your stuff away from/or transmit without worrying about snoops – encryption.
Z: So TCPA is Blubster? Les: Wrong side of the question – I really don’t know what they have in mind.
Z: I thought this was about building a machine that would act in trusted ways – enforcing the eBook restriction for example
Les: If Larry wants to ensure that he can impose the controls that he wants, the computer will enforce it.
Fred: Wait, wait. That’s not what TCPA does. According to the discussions that we have been having, and I think that I have a sense what the early versions will be. First and most importantly, everyone should learn more. IBM hardware is out, MS has software.
One thing it does is keep the computer clean, so that you can trust it. That may be ok, but it’s also about making sure that others can also trust the computer to behave as they expect.
Fred: Bunny Huang’s book is of course a guide to hacking (suggesting that for less than $100 anyone can do it), but all it takes is one person to hack the protected content. With that information posted, now everyone can get at it – and, most interestingly, the TCPA tech can then be used to securely accessing the P2P net. And Microsoft has asserted that unsigned applications will certainly still run.
Fred: TCPA may mean that the power will shift from the user to other actors.
Ben Adida: Doesn’t this lock up your data in ways that keeps you from accessing your data, putting it behind a wall that you can’t get around?
Z: Come on! We have trusted machines (sealed meters like in a taxicab)
Fred: A technology producer has no obligation to make it easy to hack the machine; but an innovator should be allowed to exert that effort. And the DMCA has become a legal limitation upon exerting that effort. And now, with TCPA and DMCA, now innovating on the platform is going to make things really hard.
Lisa Rein: I don’t care about interoperability of programs, but I do want interoperability of data.
Les: As long as you give the permission, then it should be openable.
Fred: I don’t expect that problem, and I have to worry about a lot of things.
Z: So digital locks can be left unlocked according to the will of the creator.
Question: What does Verizon/notice and take down subpoenas mean for the university roles in this sort of space?
Charlie: You’d think that universities would take a leadership role in this area, but it doesn’t look like they are.
Charlie describes the Penn State suggestion and someone from the General Counsel’s office at Vanderbilt agrees that it might work/be palatable.
A commenter points out that the developing world isn’t going to buy into the copyright regime if it’s this draconian
Fred: Prof John Barton’s look at IPR in the developing world. Integrating Intellectual Property Rights and Development Policy – Commission Intellectual Property Rights. The US trade treaties are being used to spread this IP approach; countries can choose to accommodate or reject these approaches – and the shape of these laws look like they favor the producers of IP.
Les: As a country develops an IP based industry, they will become more appreciative of the notions of copyright
Charlie: This trend of IP imperialism – locking countries, school systems, governments into the idea that you need to pay copyright to get access to the technologies – on to open source
Q: The BSA as a “machine of terror” is articulated, the copyright police for monitoring businesses.
Z: Let’s move on to spoofing and interdiction: Charlie?
Charlie: I looked for a real copy of a file, and spent a half an hour and never found one. It looks like spoofing could collapse the KaZaA net. And according to Fred, it’s completely legal.
Charlie: Interdiction, however, is different. It could be that the industry, by pretending to download a file, sucking bandwidth and locking others out. It’s a denial of service, and its legality is questionable. Under the power and abuse act (??), it’s a grey area. A law firm won’t give you an OK, but let’s remember that, as a powerful industry, and as a strategy that doesn’t effect the rest of the network, although it will lead to local damage. Will a US attorney prosecute – you are not allowed to damage someone’s machine in excess of what’s authorized (that can’t be exactly right).
We’re talking about property, but power does matter at this stage.
Fred: No copyright owner has not admitted to interdiction. Second, IMHO it’s an illegal denial of service.
Z: injection of hypotheticals, with charlie, to assert puzzlement.
Fred: Law professors bearing hypothericals should not be trused!!
Fred: It’s one thing to attack pirates, but once you tackle something that gets at the business model of the cable companies, etc. At that point, other lobbyists will make sure they don’t get what they want.
Fred: In response to Z’s argument that iTunes solves all the trouble. Note that these are not MP3s, there is DRM in this and, as an Apple product, of course it looks great and works well!
[Les slaps his forehead!]
Fred: and it still doesn’t get rid of the file sharing nets. KaZaA is not available for Macs, so there’s a pent-up demand.
Les: Not to be unkind, but Macs are a small market; and we need to teach our children not to be thieves.
Z: What about Terry’s proposal?
Charlie: I think it’s the right way to approach the problem, but there’s a lot of problems before we can get there.
Fred: I agree, although the obstacles I see are probably different than those the Charlie sees. And we still have to do something about file sharing, because it’s not going any anywhere.
Head of IP from Warner Studios: My reaction to Terry’s proposal. It’s interesting, but my concerns are that we’re not going to be able to measure the loss that we are trying to compensate. Eventually we either need to set the taxes as compensation, but instead it becomes an affirmative selection. How we’re going to get the numbers, we’re going to have to rely upon government to set that number. So investors won’t be able to value investment in these industries. Moreover, the injection of the government into the process to sustaining the creative industries is something risky to undertake.
More generally, I would argue that we need both to defend the current model as we evolve to the next business model. The innovation-reaction process that Terry described this morning is still the most satisfactory process for achieving change. Particularly in the face of the potential disruption costs.
Terry: Those are helpful comments. First, as to the risk that shifting to a government-based arrangements – those are serious concerns that could be mitigated through careful design and probably by setting up the tax and royalty systems in ways that limit their volatility over the timetables of the political processes. It certainly is not going to be costless – the only reason to risk it is that things are so broken now.
As to the notion of incremental change – the problem is that there is this effort to seek the local maximum rather than the global maximum. Incrementalism is more likely to perpetuate the current model, and it may be that a sea change is really needed.
Your reaction and others are suggestive that the political impediments to upsetting the copyright scheme are huge. This suggest that the transition will require a voluntary initiative on the part of the industry to move in the necessary direction through a voluntary association – setting up an artist’s coop. Artists could elect to sign up, as could the consumers of the artists’ creations. And, if this sytem were to work (depending upon critical masses – a chcken and egg problem, since neither will participate without a large group on either side).
Z: One such set of artists who might do this would be those whose works are old enough such that their contracts disappear – they now own their works – and they might be interested in seeing what sort of new deal might be offered and these artists might be an option.
Summary; Music remains the hottest and most entertaining part of the internet law problems and we’re all involved. We barely got started on the problems, and it’s a look at the way that there are key ideologies that underlie the way we think about this, and ultimately effect how were’re going to resolve these problems as well.
Jonathan has an outline:
defending the current business model
the legal battles against users, ISP, etc. to stop
the prospects for strong digital locks
from shield to sword: spoofing and interdiction
Toward new business models?
- Terry’s approach