2003 March 15

(entry last updated: 2003-03-15 20:32:15)

  • Went to the morning session of the JOLT symposium, and stayed to hear Rep. Boucher talk at lunch before meeting my wife for the afternoon. Saw Derek there, who’s posted his notes from the session on his weblog.

    Since I was only there for the morning through lunch (Sorry, Jonathan!), I’ve got less to say than Derek. Below are a set of disassociated ramblings that I’ll try to sharpen up later.

    • Maureen O’Rourke raised what I thought was a particularly key issue when she raised the question of industry structure during a question she posed to Alec French, who ably presented Rep. Berman’s position. Her comments got me thinking about the striking dichotomy of the discussion of fair use that we saw this morning. On the one hand, the notion of copyright as the protector of the incentive to create was routinely cited, yet several panelists (Siva in particular) kept pointing out that the law seems to be failing to prevent piracy and other egregious violations of the most primal elements of copyright protection.

      When we look at what the laws are being constructed to achieve, does it not look like the real objective is to protect the distributors of content, rather than the creators? Going back to some of the things I’ve said earlier about technological alienation (which I can see it’s time to rework!), it is clear that the distribution industries have elected to employ digital media because it saves them costs in production and distribution. Moreover, there are certainly questions as to whether those cost savings have been passed along to the consumer or the artist. Instead, I found myself considering that one could easily claim that the bulk of recent copyright legislation has been designed to defend a set of industries whose business models are being made obsolete as digital distribution obviates the need for the services that they once supplied (c.f., the Natalie Merchant article from the NYTimes this week).

      So many other industries (telecomm, electricity, railroads) have been forced to rethink their business models as the concept of distribution has been disassociated from the product – are we allowing the notion of copyright to derail the changes that the new technologies would otherwise lead us to greater efficiency for both the consumer and the creator by sustaining the distributor?

      (Note: Just to head off one objection, I’m not buying the trickle-down theory of distribution-to-creator any more than I buy trickle-down economics in any of the other policy venues it gets asserted – if we want to incentivize creators, I’m not buying the argument that we need old-style distributors to make sure the creators get paid – we have new technologies out there to give us all more efficient ways to make this happen to the benefit of both the consumer and the creator of creative content.)

    • Adding fuel to this thought was Alec’s defense of our current copyright regime – his claim that, when one looks at countries where the copyright laws are not so well established, there are no large book publishers, movie industries, etc. Hmmm – are these the creators, or the distributors? And, as Siva and I discussed after lunch, is it even true anyway? No publishers in Hong Kong?

    • I would be remiss, especially given the fact that so much of this overall conversation about copyright online (a favorite theme at Donna’s Copyfight) has been about deconstructing the polarizing rhetoric employed, to skip a discussion of Alec’s special skills in this regard. His opening comments on fair use were masterful in the way that they kept the audience off balance. I hope that the webcast will be accessible, but if not, I’d like to describe what he did.

      As Derek describes, Alec suggested that copyright and fair use went together. More powerful, however, was his assertion that the current copyright regime is demonstrably good for creators because never has there been so much creative material, in so many forms, available to so many people as has been the case during the past five years since the passage of the DMCA.

      This is a striking claim. Yet, even if it is true, it has nothing to do with the contention that somehow the current copyright regime is healthy for the creators of content. The digital locks aren’t protecting the much-celebrated needlepoint pattern designer of Rep. Berman’s district. (Although, a quick perusal of their site does not yield any of the tales of woe that Alec claimed I would find – in fact, I find links like this instead.) As Siva pointed out, somehow these protections aren’t getting in the hands of the 99% of creators who aren’t tied to a big distributor, so the argument that copyright is working seems odd – even if Alec’s claim is true – a very clever shift of the discussion.

    • I’m sure Ed Felten (and the EFF) will be happy to hear that Alec (and therefore, I assume, Rep. Berman) see the Lexmark case as emblematic of exactly the kind of thing that the anticircumvention provisions of the DMCA is supposed to protect! So much for the freedom to tinker.

  • David Weinberger posts some thoughts relating to my comments on Kling’s World of Ends response.

  • Slashdot posts on the Forbes editorial Larry Lessig cited in his weblog last week. Steven Forbes calls the Eldred Act a “patently good idea.”

  • Pertinent to today’s JOLT conference, an article at Wired on art developing out of the application of technologies with potentially infringing uses.