Some thoughts on Charlie’s "copyright by DoS"

(Working Draft — revisions pending!)

Charlie’s proposal has been generating a host of commentary — unsurprising in light of what he proposes.

Derek identifies the problem that lies in the background of Charlie’s proposal, as well as many other tchnological instruments of control — at some point, the tools reach a level of capability that they threaten not only those toward whom they are directed, but also those who hope to wield them.

Derek’s specter of “global thermonuclear war” on the internet points to what I think is at the heart of the problem with Charlie’s proposal. Just as Charlie describes the delights of the riot, his proposal seems to delight in the joys of the gunslinger. Essentially, he describes a regime wherein each copyright holder hires his/her own “posse” to handle an internet outlaw.

What’s so shocking about Charlie’s proposal is that I remember Charlie being the primary exponent of a thesis about the Internet — that it’s the kind of space where bad behavior gets you in serious trouble.  Charlie’s ILaw session from 2002 with Anita Ramasastry shows that he’s been thinking about DoS as a mechanism for protest/enforcement for some time. But 18 months ago, I thought his message was “be nice on the Internet, because the penalties for not being nice can be more than you can handle.”

Moreover, we have his argument that there’s an important role to be played by ensuring access. From Donna’s notes:

Terry: Another question. Chris Lydon asks, “Who killed cyberspace? Is there cyberlife after cyberdeath?”

Charlie: It’s not dead yet. It goes in waves. Optimistic vision first. Forces of greed/market operates. Then reactive mode. There’s a subtext coming back the other way. I look at this in rhetorical terms. By the way: my apologies for my rhetorical failure the other day.

An infusion of true creative energy will save the Net. The institutions to do it are the institutions of creatvity [sic]. Commitment to openness, open discourse, asking good questions. How could the Internet be used to get this message out?

What is really distressing about Charlie’s current proposal is that it essentially says that government goes to the strongest. If you want your rights protected, you have to join the right posse — the right street gang. Or worse, you need to pay for protection, financing the development of the very tools that will destroy the thing that many have been hoping to create in this space.

That’s sad. And I really can’t believe that’s what Charlie believes. Instead, I’m hoping that this is all about “stirring the pot” — making us think harder about what we really mean when we say that the Internet is a place where we can form communities of creativity and expressive communication, building off of one another to build something better.

Charlie’s proposal is the the opposite of the vision that I thought he was working to build — and I’m hoping that it’s just his way of making us stop and think about what’s really at stake.

Note: I understand (and agree) with Charlie that compulsory licensing (and the bureaucratic institutions required to sustain it) are terribly unattractive, for many of the reasons that he cites. But hired guns are just the start of a slippery slide into a noxious, destructive place — even if the objectives are moral/legal. It’s still vigilanteism.

I’m watching West Wing — Pres. Bartlett just quoted Martin Luther King, expressing exactly what’s wrong with Charlie’s plan:

The ultimate weakness of violence is that it is a descending spiral, begetting the very thing it seeks to destroy. Instead of diminishing evil, it multiplies it. Through violence you may murder the liar, but you cannot murder the lie, nor establish truth. Through violence you murder the hater, but you do not murder hate. Returning violence for violence multiplies violence, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that.

Bleeding heart sucker, right? Maybe so, but in Larry’s Chicago School mechanisms of control mandala, I’m looking for technology as an enabler, not a disabler. And I want the use of technology to limit others treated as vigilanteism, irrespective of who wields the instrument. And if that means that the internet can’t become a new kind of fancy television, then it’s not going to be a fancy television — period.

Charlie Nesson’s Essay (rant.doc)

Donna Wentworth has passed along a short write-up by Charlie Nesson of his thoughts on hacktivism in support of artist copyright (See also her posting: Let the Music Pay IV). She has indicated that Charlie wants to get it out there for discussion, so here it is. (My comments will have to wait – I’m already late for a meeting; check for potential comments at these places and I’ll try to get something up later — Derek’s, Prof Solum’s, LawMeme and bIPlog):

Artists have been helpless to prevent their new releases from being illegally copied and freely shared on the peer-to-peer networks. All to often, even before the store release-date of a work, someone will rip a copy of the work and put it in the shared folder of a peer-to-peer client like Kazaa, thereby planting a seed which will rapidly and freely spread. Some artists feel that this process of rip-seed-share damages their ability to realize commercial value from their work, and that, to date, they have had no effective way to stop the damage.

Against this background, suppose the following service is offered to artists as a means to protect at least a portion of the commercial value of their new releases. Treat this service as hypothetical, although some companies may be offering some forms of it without talking much about it. The service (1) watches the peer-to-peer networks on behalf of the artist-client who wants to protect a new release to catch the first appearance of a copy of the new release illegally posted to an open network; (2) finds it fast enough to enable the service to get in queue to download it before anyone else; (3) downloads the copy of the new release from the infringer in a manner that effectively competes with others trying to get it; (4) at the same time causes a notice to be posted in the infringer’s traffic window politely requesting the infringer to remove the work from the publicly shared folder.

Assume that as a consequence of this service those who try to download the work from the infringer’s shared folder find it difficult or impossible to do so, and those who put the artist’s work in their publicly shared folders are induced after a while to remove it. Assume that this service, applied to each new seed, is maintained up through the store release date and for a few weeks thereafter, then discontinued, and that during the period in which the service operates it either significantly slows the process of proliferation of free copies on the peer-to-peer networks or stifles such proliferation altogether, with the result that the artist can realize commercial benefit from the new release during the time period most crucial to its commercial value.

Is this service legal? If not, what specifically makes it illegal? Who would sue whom?

[rant mode on]

Publishers have hidden behind the skirts of artists, shamelessly advancing the hapless artist and his impoverished grandchildren as excuse for extending copyright to inordinate lengths (Eldred) while giving the artist and his progeny somewhere close to zero as their cut of CD proceeds (60 cents out of $17?). Yes, the labels have been screwing consumers to the max that corporate greed could figure. This is why, when Shaun [sic] Fanning birthed the current era of promiscuous copying we all (at least many many of us) felt a lift. Napster surged into our lives to demonstrate the impotence of a greedy industry and the helplessness of law. It was like a riot situation in which the plate glass windows of the record stores were smashed and all the inventory of the corporate gluttons was there for the taking. Plus, taking it was fun; the tech was slick, savvy, young, totally now. The labels were the enemy, like the merchants in the ghettos gouging helpless consumers with outrageous prices for inferior goods. We smiled at their predicament, rooted for the kids, maybe even downloaded a song or two ourselves.

So okay, the record industry needs overhaul. Change in the business model has got to be a predicate for re-establishment of order. Prices need to drop. Consumers want ability to buy songs without having to buy whole albums. Artists want to reach the marketplace without having to sell their souls to the Big Five. Digital delivery of songs needs to come with rich inventory and wide flexibility.

But now it comes, five years later, iTunes and MusicMatch and songs for 99 cents or less, open to any artist with an indie label. At last the business model is changing. Is it time for the riot to end? Time to re-establish order with a reformed marketplace? Do you want iTunes and its PC variants to succeed? Or would you rather see the riot continue until desperation forces changes in the fundamental architecture of the net, or of the law? Is the idea to argue against any means of protecting the commercial value of an artist’s work until the current system totally breaks?

For some the answer to this will be yes, the vision of a global tax and royalty system appearing to them to be the greener grass. This, I admit, is amazing to me. The very idea that those who have loved the net should be striving to establish a global government-run system of net administration complete with taxing power over Internet facilities and ability to say what creator should be paid what for what content is, to me, mind boggling. Cries for caution based on the Canadian experience seem to go unheeded. Why does this path seem more attractive than one which builds on the capacities of the net itself for self protection?

The service I describe is for artists. It offers them a limited protection during the initial crucial period of a new release. At the very least it is arguably legal. Why is first reaction to it to look for ways to condemn it rather than for ways to support its legality? No doubt this reaction is rooted in hostility to the historical greed of the labels, but times and business models are changing in just the directions those who have been calling for change have wanted. The interests with which this artist’s protective self-help service might potentially interfere are (1) the infringing seeder’s interest in being able illegally to serve the artist’s content through his peer-to-peer client; this is not an interest that deserves the law’s protection; (2) the infringing seeder’s interest in serving up other content through his peer-to-peer client at the same time he is illegally serving up the artist’s content; this is not a matter of any economic consequence to the seeder, thus causes him no damage, and moreover is easily and immediately remedied by him; (3) the would-be downloader’s interest in illegally getting the artist’s work from the seeder, not an interest the law should respect; (4) the would-be downloader’s interest in getting other non-infringing works from the seeder during the period in which the seeder persists in illegally serving up the artist work; this seems insubstantial unless the seeder is the one and only source of the desired work on the p2p net; no one counts on getting a particular work from a particular p2p source.

[rant mode off]

In fact, I believe in this view so much, I’ve agreed to help out a start-up company that wants to offer this service.

Lawrence Solum (and others) on Internet Norms

Copynorms and Nesson’s Koan is Lawrence Solum’s discussion of the ways in which the norms of copying have evolved in the face of technological change, and why putting Humpty Dumpty together again is not the answer to the RIAA’s problems.

Moreover, just as the community calls for a change in the business practices of the industry, Prof. Solum points out that there’s an emerging consensus that there should be some change in the culture of copying, too — to wit:

Share with your friends, not with strangers!

Note that this nicely dovetails with what most people generally think that "fair use" means. Ernest Miller includes his thoughts on the subject in Share with Friends, Not Strangers. In this light, see Prof. Moreno’s testimony from yesterday’s hearing — at least the excerpts I cited.

Prof. Solum’s suggestion that the RIAA adopt this position, on the other hand, is not likely to happen anytime soon. A read of any of the history of this industry (c.f. Sonic Boom) shows that nobody can tell these guys what to do — even if it’s in their best interests to take the advice.

The RIAA’s Measure

Doc Searls points to a regular feature in a public relations mag called The Measurement Standard, "Can This Reputation Be Saved." The article he picks looks at the RIAA, with a devastating conclusion:

The short answer: Ultimately, no.

[…] The point is that the RIAA increasingly comes across as an anachronistic throwback to 19th Century copyright laws. They are the classic bluff and bluster comic book cops that are all about threats and are totally cut off from 21st Century reality. They clearly haven’t read The Cluetrain Manifesto (buy it at the Measurement Mall) and have no idea what is being said about them in cyberspace. Ultimately, while they may have the law on their side, their pompous statements continue to undermine their credibility–and their reputation–daily.

More on Stopping Movie Piracy

… by members of the Academy of Motion Picture Arts and Sciences: Advance Film Copies Halted for Oscar Voters [pdf]

Executives at some independent companies said privately that the studios were less interested in the piracy issue than in undercutting independent film companies who have consistently won Oscars recently.

Jack Valenti, president and chief executive of the Motion Picture Association, insisted that the ban was meant to halt “digital thievery,” a growing problem facing the movie business.

It’s amazing how far you can go, and how broad your reach can be, when you say you’re acting to protect intellectual property, isn’t it?

Julie Hilden on RIAA Subpoenas

From Findlaw’s Writ: Anonymity Versus Law Enforcement: The Fight Over Subpoenaing Alleged Downloaders’ Names From Internet Service Providers

The suit raises a number of important issues. In this column, I will concentrate on two. The first is how to interpret the subpoena power that is set forth in the Digital Millenium Copyright Act (DMCA).

The second is whether a user identity subpoena such as the one issued to Verizon – even if it were authorized by the DMCA – violates the First Amendment, and, in particular, the right to speak anonymously. For arguably, unless users can access the Internet anonymously, they cannot truly speak anonymously there.

[…] Though the point has not been sufficiently well-publicized, the district court’s opinion wholeheartedly embraced the right to speak anonymously on the Internet – at least, in theory. For at the same time, it held that the RIAA subpoena does not violate this right.

[…] [T]he district court made those anonymity rights virtually toothless.

[…] In the end, by pretending to recognize anonymity rights, but then making these rights effectively meaningless, the district court did a disservice both to Verizon and its users. It also declined to reach a true compromise in the inevitable clash between anonymity rights and law enforcement goals.

Yet some compromise is necessary. The presence or absence of the option of anonymity on the Internet won’t only affect illegal downloaders. It will affect every Internet user who believes that he or she might someday have something so important to say – or information so important to exchange – but fears there is insufficient protection online to speak anonymously. For along with its costs, anonymous speech has potentially immense benefits – a matchless candor on the part of the speaker, and the potentially highly beneficial revelation of secrets the public should know.

Until we balance these costs and benefits rationally, and work out a compromise between them, both our civil liberties and our security will be imperiled.

Some New P2P Statistics

Some saying that the industry’s having some effect, but not really winning the war: Lawsuits Damp Down P2P Audience.

Since the week ending June 29, traffic to Kazaa has fallen 41 percent to about 3.9 million unique visitors from 6.5 million in the week ending September 21.

Traffic to Morpheus fell to 261,000 unique visitors in the week ending September 21 from 272,000 in the week ending June 29.

[…] The August 2003 Gallup Poll Tuesday Briefing Youth Survey, a premium service offered by the Gallup organization, found 83 percent of 517 teens, aged 13 to 17, found downloading free music was morally acceptable.

Wired on the Senate Committee Hearing

Wired News on differences of perspective: Rappers in Disharmony on P2P (see yesterday’s postings for excerpts and links to testimony at Privacy & Piracy: The Paradox of Illegal File Sharing on Peer-to-Peer Networks and the Impact of Technology on the Entertainment Industry)

The Recording Industry Association of America keeps a united front, but LL Cool J and Chuck D candidly shared their opposing views on file sharing and its effect on the industry. The musicians were invited to testify before the U.S. Senate Committee on Governmental Affairs, which is investigating the effect of peer-to-peer file sharing on the entertainment industry.

[…] LL Cool J threw the first volley:

“My first question is this: Do people in the entertainment industry have the same rights as other Americans to fair pay for fair work? If a contractor builds a building, should people be allowed to move into it for free just because he’s successful? Should they be able to live in this building for free? That’s how I feel when I create an album, or if I make a film, and it’s shooting around the planet for free.”

LL Cool J said he has seen a gradual decline of his record sales even though he made some of the greatest hits of his career recently.

[…] “Technology giveth and it taketh away, and the industry knows this,” Chuck D said. “The horseshoe makers probably got upset at the train manufacturers because (the new industry) took away their transport dominance, just as the train manufacturers probably got mad at the airline industry.”

“I think this expands artistry and it’s about adjustment,” he said.

“As an artist representing an 80-year period of black musicianship, I never felt that my copyrights were protected anyway,” Chuck D said. “I’ve been spending most of my career ducking lawyers, accountants and business executives who have basically been more blasphemous than file sharers and P2P. I trust the consumer more than I trust the people who have been at the helm of these companies.

“The record industry is hypocritical and the domination has to be shared. P2P to me means ‘power to the people,'” Chuck D said. “And let’s get this to a balance, and that’s what we’re talking about.”