A striking paper from SSRN: Copyright, Commodification, and Culture: Locating the Public Domain by Julie Cohen. This paper challenges the current conceptions of the notion of the “public domain,” suggesting that the way that it is currently framed (in the Lakoff sense) ends up supporting efforts to commodify cultural products. A fascinating and challenging read. I really liked this paragraph from p. 38:

At bottom, however, my argument is a normative one. As David Lange and Eben Moglen have so eloquently argued, access to the cultural public domain is a matter of status, not of property. Commodification of artistic culture places the law in opposition to the inherent creative faculties and tendencies that define what it is to be human and to exist in human society. This devalues what we purport to prize. If we as a society really wish to encourage creative practice, there is something perverse about adopting a legal regime that throws up omnipresent roadblocks to it. Instead, we need to decide which legal definition of the cultural public domain will produce the best set of conditions for creative practice generally. Although there are inherent tensions between a regime of ownership and conventions of opportunistic borrowing, copyright law should align with creative practice to a far greater degree than it currently does.

And the conclusion will, I hope, give you reason to read her proposal for a construction of a “cultural landscape” in full:

Beliefs about what legal definition the public domain requires depend crucially on implicit preconceptions about what a “public domain” is. I have argued that the term “public domain” is burdened with associations more broadly congruent with the pro-commodificationist project than is commonly acknowledged. More fundamentally, I have argued that the right approach to the relationship between the proprietary and the public in copyright law is not to be derived by interrogating nineteenth-century legal concepts, nor by studying markets for creative products or modeling information as an autonomous system, but rather by more careful attention to creativity as a social phenomenon manifested through creative practice. The preliminary outline of a social theory of creativity offered here has emphasized the relational, emergent nature of creative practice. Much work remains to be done in understanding and elaborating the creative process. It seems, however, that the public domain may require not so much a reification as a reformulation. Experientially, the common in culture is distributed and disaggregated. It is neither geographically nor formally separate, nor is it composed only of that which is publicly owned. If so, the legally constituted common should both mirror and express this disaggregation. The cultural landscape is a likely candidate for both jobs.

This article just gives me a headache: White House Turns Tables on Former American POWs [via HotLinks] [pdf]

The latest chapter in the legal history of torture is being written by American pilots who were beaten and abused by Iraqis during the 1991 Persian Gulf War. And it has taken a strange twist.

The Bush administration is fighting the former prisoners of war in court, trying to prevent them from collecting nearly $1 billion from Iraq that a federal judge awarded them as compensation for their torture at the hands of Saddam Hussein’s regime.

The rationale: Today’s Iraqis are good guys, and they need the money.

The case abounds with ironies. It pits the U.S. government squarely against its own war heroes and the Geneva Convention.

Many of the pilots were tortured in the same Iraqi prison, Abu Ghraib, where American soldiers abused Iraqis 15 months ago. Those Iraqi victims, Defense Secretary Donald H. Rumsfeld has said, deserve compensation from the United States.

But the American victims of Iraqi torturers are not entitled to similar payments from Iraq, the U.S. government says.

Massachusetts, Microsoft Reach Relaxed Patent Licensing Deal

According to an agreement recently reached between Microsoft and the state of Massachusetts, the Redmond, Wash.-based software company revised the patent license on its ML formats for Office 2003 to ensure that the Word and Excel ML formats, for example, remain open for all-time and for all citizens. With that, Microsoft can’t prevent citizens from opening a public document or force them to pay for that right.

“Massachusetts has a reputation of being a leader in this space. It was troubling to us that a private company could lock up a [public] document,” Quinn said at a LinuxWorld press conference in Boston. “We worked closely with Microsoft on the issue, and they have changed the worldwide patent.”

Closed Architectures for Content Distribution [via CoCo]

In my paper I take a closer look at the implementation of DRM schemes and analyze what effect they have on the use and re-use of the content they aim to protect. I argue that the scope of this protection is much wider than it should be; in essence, every use that is not specifically permitted by the content provider is in fact prohibited. Moreover, adding DRM to the materials they distribute places the content providers in a very powerful position: They enable themselves to control the architecture and development of the downstream devices that process their digital content. Control of such an extent has or will have a stifling effect on innovation in Japan both on the content production level as well as on the content carrier/editor development level — a very unpromising outlook indeed. In this respect, I question whether the Japanese content industry’s current DRM tactics are the way to go — possibly rethinking and adjusting business models may ultimately prove to be a more viable solution.

Derek points to and comments briefly on a Cato study: Peer-to-Peer Networking and Digital Rights Management: How Market Tools Can Solve Copyright Problems

From the executive summary:

This study argues that the basic functions of DRM and P2P can be quite complementary and that innovative market mechanisms that canhelp alleviate many copyright concerns are currently blossoming. Government should protect the copyrights of content owners but simultaneously allow the free market to determine potential synergies, responses, and outcomes that tap different P2P and DRM business models. In particular, market operations are greatly preferable to government technology controls, on the one hand, or mandatory compulsory licensing schemes, on the other. Recent court decisions regarding the liability of P2P networks or software providers may force the Supreme Court to revisit its own precedents in this area. In the absence of an efficient resolution by the Court,Congress may pass legislation that may interfere with both technological evolution and free-market processes.

I, too, see reasons to read this one closely, but it already seems clear from the little I’ve seen that the writers speak from the perspective that DRM-enabled price discrimination (via versioning), per se, is not a fundamental problem.

As I found in a set of exam questions that I just finished grading, I seem to have had some difficulty getting the discussion around to what I see as the key questions (so, an excuse to rework some lectures!):

1. Just how much of a rent should copyright holders be able to extract via their government-awarded monopoly power?

2. Should it be just enough to ensure a rich flow of creative works, or should it be as much as the market will bear?
3. Does the current market structure ensure that these two are concurrent objectives?

• If so, what should be done to ensure that this market structure is preserved and strengthened?

• And, if not, what structural changes are required to ensure that we can make them so? Or, are there reasons for instruments other than markets?

Later: Ed Felten’s thoughts - How Competitive is the Record Industry? A Natural Experiment

But making a necessary point — again: Napster To Go DRM ‘threat’ astounds media (see That Didn’t Take Long)

The world’s mainstream media has been amazed by reports that the DRM technology intended to protect songs supplied by Napster’s To Go can be bypassed, “potentially letting [users] make CDs with hundreds of thousands of songs for free”, as one astounded Reuters reporter put it.

And it’s true, they can. But then they’ve always been able to. The trick is nothing new. Napster To Go was only launched earlier this month, so it has a fairly high media profile right now. That’s really the only reason why it has been singled out for its inability to guard against such techniques. It’s no more a blow to Napster’s service, its business model or Microsoft’s DRM software now than it was on the day before Napster To Go launched.

[...] Efforts are underway to block such tricks by integrating DRM support into the sound chip itself, in effect leaving the decryption process to the very last moment before the digital audio data is converted into an analog sound wave. But that still leaves the speaker output capable of being recorded. For most people, this is too much effort - it’s easier just to buy the song, or download it from a P2P service after the track has been posted by someone who did go to the trouble.

All the more reason then, to seek out new business models that allow for this kind of thing and still ensure performers, publishers and labels get their cut. And no one has to lose their record collections when they cancel a credit card.

On top of my reading pile: Are Bullies After Our Culture?

As the title suggests, the book is an intense critique of the U.S. copyright and trademark system and the corporations that use it as a weapon against competitors and anyone else who might threaten them. Bollier argues that the court’s willingness to let corporations get away with such bullying is increasingly eroding our “cultural commons” — the collection of images, stories, sounds and other creative expressions that, due to their significance and prevalence, no longer belong to any single person or company.

To prove his point that the commons is under attack, Bollier has filled Bullies with example after example of how corporate lawyers have swooped in on artists and consumers who have tried to use products and logos in ways other than those prescribed by the corporations themselves.

[...] The saving grace of Brand Name Bullies is the sheer number of case studies included within the book. The cases provide an interesting introduction to the problems facing the copyright and trademark system in the modern age. Lawyers will certainly find it to be a handy desk reference, and proponents of looser copyright restrictions may even regard it as the beginnings of a manifesto. Anyone expecting a concise, cogent argument against the further expansion of copyright laws, however, will be disappointed.

See the online site: http://www.brandnamebullies.com/

Also a review by J.D. Lasica: ‘Brand Name Bullies’ review [via EFF]

Mergers Raise Concerns Over Internet Access [pdf]

So far, there is no organized group calling for the rejection of Verizon Communications Inc.’s buyout of MCI Inc. or SBC Communications Inc.’s purchase of AT&T Corp. Instead, in a process that could last a year or more, several organizations said they will press regulators to place conditions on the mergers to help ensure robust Internet competition.

State public-utility officials also intend to play a role.

The focus on Internet services, as well as on long-distance calling, is testimony to the breathtaking changes in the communications landscape over the past several years.

[...] The danger, [Brian R.] Moir and others said, is that SBC and Verizon could use their ability to bundle soup-to-nuts telecommunications services for businesses in ways that could make it impossible for rivals to compete.

At the moment, there is so much backbone capacity that prices are falling. And there are several other backbone providers.

But if the mergers are approved, “Verizon and SBC are well-positioned to dominate and make it more difficult for other backbone providers to offer packages of services,” said Gene Kimmelman, head of the Washington office of Consumers Union.