Larry Tries Something Different

Although, it’s not that novel (see What Federal Gun Control Can Teach Us About the DMCA’s Anti-trafficking Provisions and this Furdlog post — here’s an earlier one that also makes the point: 8 November 2002). On the other hand, it’s still a great argument to put up against those who want to make the Grokster decision out to be some kind of anomalous legal position: Bytes and Bullets [pdf]

I’m a strong opponent of this legislation, but not because I support copyright infringement. The technologies being attacked by this bill have plenty of important uses that have nothing to do with copyright infringement. This legislation would effectively eliminate them.

But there is a silver lining here, and it has to do with, of all things, a very old technology: guns. For if Congress passes this bill, on what principled basis can it then refuse to hold gun manufacturers responsible for the crimes committed with their technologies?

(Thanks to the EPA’s Bill Nickerson, TPP alum, who pointed it out to me — since I spent yesterday on an airplane, I would have otherwise missed it!)

On The Road ….

… to put in a little teaching in the UK. I might get a little time to post, but it’ll be sporadic at best. (Of course, lately it’s always been sporadic — it’s been thant kind of a term.)

Have a happy Thanksgiving!

More Reading…..

Pirates of the Digital Millennium

The war over intellectual property is being fought everywhere on earth. It’s a battle between media conglomerates and computer-wielding teenagers, between billion-dollar technology companies and billion-dollar content companies, between artists and artists, nations and nations. This is not only a top technology story, but a cultural, economic, and entertainment story.

Now, IDC’s Chief Research Officer, John Gantz, and Jack B. Rochester, authors of the best-selling book of the 1980s, The Naked Computer, take on the subject from every side: culture, ethics, law, business, law enforcement, and even geopolitics.

Starting with ground-breaking research from IDC on software piracy around the globe (see IDC Inside), and fresh research conducted by IDC for the book on consumer attitudes about music and movie piracy, Gantz and Rochester cover the story from the streets of Bangkok to the halls of Congress, from secret duplicating factories in Paraguay to college dorm rooms. They examine the past, present and future of copyright infringement and enforcement…

Jonathan Zittrain, Assistant Professor of Law, Harvard Law School, Co-Founder, Berkman Center for Internet & Society

“The authors have taken a welcome step back from the copyfights that have consumed the digerati at the turn of the millennium, placing them into a historical, social, and ethical context. This book provides a roadmap for a detente that could end the arms race and allow new forms of creativity and intellectual productivity that we know can be unleashed, if only the right legal and economic knots can be untied.”

If It’s Good For The Goose….

Judge dismisses keylogger case [via Slashdot]

A federal judge in Los Angeles has dismissed charges against a California man who used a keystroke logger to spy on his employer, ruling that use of such a device does not violate federal wiretap law.

[…] The court based its decision in part on a controversial ruling by the First Circuit Court of Appeals earlier this year that threw out wiretapping charges against Branford Councilman, a former vice president of an online bookseller who provided customers with free e-mail accounts, then set up a system that made covert copies of some messages for his later perusal. Feess found that here, as in the Councilman case, the e-mail was not intercepted as it traveled over the network.

[…] The court also cited a 2001 case in which a federal judge in Newark, New Jersey ruled that the FBI did not violate the Wiretap Act when it installed a covert keylogger on the computer of organized crime suspect Nicodemo Scarfo. In that case the FBI assured the court that that its keylogger had been configured to stop recording keystrokes when Scarfo connected to the Internet.

See also Judge dismisses keylogger case

Nominee for Time’s “Person of the Year”

FCC chief has had quite a year [pdf]

It’s the season for Time editors to mull possible candidates for its 2004 Person of the Year. According to the magazine’s criteria, the final selection will be ”the person or persons who most affected the news and our lives, for good or ill, and embodied what was important about the year, for better or worse.”

[…] Interesting choices all, but here’s an even better suggestion — Michael Powell, chairman of the Federal Communications Commission.

From driving Howard Stern to announce a 2006 move to satellite radio to making ABC affiliates so skittish about airing a film with graphic violence and profanity that more than a third canceled a Veterans Day airing of ”Saving Private Ryan,” no individual this year has had a greater effect on our cultural lives — for good or ill, for better or worse — than Powell.

Missed This Summary!

Economic View: Does a Free Download Equal a Lost Sale? [pdf]

From the outset, however, economists have been skeptical that every free download represented a lost sale. And several years after the explosion, and subsequent implosion, of the original Napster, academics have begun to plug data about free downloading into complex equations and theoretical frameworks.

Stan Liebowitz, an economist of the University of Texas at Dallas who has synthesized much of the research, sees economists as generally coming to an agreement. “I think the consensus is going to be that file sharing and downloading is going to be harmful to sales of music,” he said. The question is, how much?

[…] Contrary to most predictions, sales of recorded music rose earlier this year. In the first half of 2004, shipments of CD’s rose 10.2 percent from the period the previous year, according to the recording industry group. “In that context, there’s a tourniquet around the problem,” said Mr. Bainwol. He said the industry’s crackdown on file sharing was bearing some fruit.

But Professor Oberholzer-Gee draws a different lesson. “Sales can go up even when the usage of peer-to-peer technology is rising,” he said. So it appears that the digitization of music will continue to be a boon both to music-loving consumers and to data-loving economists.

Another Music Biz Model Experiment

Music Industry Is Trying Out Digital-Only Releases [via Derek; also CNet] For those of you in my classes, you will recall how the risk structure of the industry has led to a certain way of producing and developing music products. This approach, which formally addresses the costs of uncertainty in the marketplace, represents an important way of thinking about how to leverage a label’s internet presence.

[M]usic industry executives say they can also use the Internet to measure fan interest or start a buzz for a new act before releasing an album. Universal’s new label represents another leap – the belief that by signing enough acts with small, established audiences, the company can earn a profit on digital sales alone. The new unit, Universal Music Enterprises Digital, could become a model for labels that are seeking a low-risk way to market an act without producing a physical album or underwriting a band’s tour or music videos.

“It’s just so expensive these days to record an artist and make a video and put them out on the road to properly develop them,” said the executive responsible for the digital label, Jay Gilbert, a senior director at Universal’s Music Enterprises unit. “This is an alternative to that that’s not very expensive but can be highly effective.”

[…] The artists retain ownership of their master recordings but license them to Universal for a limited time; if online sales of an artist’s music reach a certain point – around 5,000 copies of a particular song – the company has an option to pick up distribution of the CD to record stores.

Universal is paying the musicians an estimated 25 percent royalty on the retail price of the downloads, without taking the industry’s standard deductions for CD packaging and promotional giveaways, according to people with knowledge of its contracts.

In exchange for the music, Universal is throwing its considerable muscle behind promoting the artists, including them in its own advertising and seeking to license their music to films and television shows. The company will also handle online marketing.

The trick will be to “reach the next frontier of consumer, the consumer searching in the digital world,” said Mr. Resnikoff of Universal Music Enterprises.

Is The EU Database Copyright Working?

Boyle takes a look (relying on data from this Science article – Europe’s Database Experiment [pdf]): A natural experiment [via Donna]

The basic economic model here is “If you give me a larger right, I will have a larger incentive to innovate. Thus the bigger the rights, the more innovation we will get. Right?” Well, not exactly. Even without data, the models are obviously flawed – copyrighting the alphabet will not produce more books, patenting E=MC2 will not yield more scientific innovation. Intellectual property creates barriers to, as well as incentives towards, innovation. Clearly the “more is better” argument has limits. Extensions of rights can help or hurt, but without economic evidence beforehand and review afterwards, we will never know. In the absence of evidence on either side, the presumption should obviously still be against creating a new legalised monopoly, but still the empirical emptiness of the debates is frustrating.

This makes the occasion where there actually is some evidence a time for celebration. What we really need is a test case where one country adopts the proposed new intellectual property right and another does not, and we can assess how they are both doing after a number of years.

There is such a case. It is the “database right.” Europe adopted a Database Directive in 1996 which both gave a high level of copyright protection to databases, and conferred a new “sui generis” database right even on unoriginal compilations of facts. […]

If the database right were working, we would expect positive answers to three crucial questions. First, has the European database industry’s rate of growth increased since 1996, while the US database industry has languished? […]

Second, are the principal beneficiaries of the database right in Europe producing databases they would not have produced otherwise? […]

Third, and this one is harder to judge, is the right promoting innovation and competition rather than stifling it? […]

Those are the three questions that any review of the Database Directive must answer. But we have preliminary answers to those three questions and they are either strongly negative or extremely doubtful.

Aren’t Color Laser Printers Amazing?

Related to the discussions about the limitations engineered into graphic editing software: Government Uses Color Laser Printer Technology to Track Documents [pdf] (see also related Extrinsic Signatures Embedding Using Exposure Modulation for Information Hiding and Secure Printing in Electrophotography, via PCWorld)

According to experts, several printer companies quietly encode the serial number and the manufacturing code of their color laser printers and color copiers on every document those machines produce. Governments, including the United States, already use the hidden markings to track counterfeiters.

Slashdot: Color Laser Printers Tracking Everything You Print

The New Yorker On Remix Culture

Found in a surprising place — an article ostensibly about plagiarism: Annals of Culture: Something Borrowed [pdf]

My friend had hundreds of these examples. We could have sat in his living room playing at musical genealogy for hours. Did the examples upset him? Of course not, because he knew enough about music to know that these patterns of influence—cribbing, tweaking, transforming—were at the very heart of the creative process. True, copying could go too far. There were times when one artist was simply replicating the work of another, and to let that pass inhibited true creativity. But it was equally dangerous to be overly vigilant in policing creative expression, because if Led Zeppelin hadn’t been free to mine the blues for inspiration we wouldn’t have got “Whole Lotta Love,” and if Kurt Cobain couldn’t listen to “More Than a Feeling” and pick out and transform the part he really liked we wouldn’t have “Smells Like Teen Spirit”–and, in the evolution of rock, “Smells Like Teen Spirit” was a real step forward from “More Than a Feeling.” A successful music executive has to understand the distinction between borrowing that is transformative and borrowing that is merely derivative, and that distinction, I realized, was what was missing from the discussion of Bryony Lavery’s borrowings. Yes, she had copied my work. But no one was asking why she had copied it, or what she had copied, or whether her copying served some larger purpose.

See also U.S. Court Upholds Beastie Boys’ Musical Sampling