IP Panel – 2003 July 2

(entry last updated: 2003-07-02 13:33:48)

Today’s panelists are Alex Macgillivray of Google, Wendy Seltzer of the EFF and Glenn Brown of Creative Commons.

Right now we’re watching everyone find power outlets and other necessary connections for their presentations – presenters, Stanford A/V, Charlie Nesson and Larry Lessig. And, I am sure to Les Valdasz’ continuing dismay, lots of Mac power adapters are in evidence <G>

And the lights go down, while the music comes up – and we’re off…

Larry: As we have discussed so far, we are working a layered model of the network. Today, our focus is the content layer. Moreover, today will be on creative content, while tomorrow will be about programs, etc. So, today’s about copyright, IP and creative content.

Today’s panelists are all Berkman Center/Harvard Law School graduates, so it’s sort of an alumni day of those at the formation of the Berkman Center.

C. Nesson: Wendy and Alex were the programming core at the outset of the Center, working on what is now H2O. Glenn is of the second generation of the Berkman Center, focusing us on music.

So, today’s focus is going to be on content – raising questions and suggesting issues, rather than trying to answer/resolve them. So, let’s look at a couple of examples.

A series of parody, political statements. in digital/MP3 form to the great amusement of the audience – exmaples of sampling, downloading of digital music and the responses that have been articulated to these various items.

Alex Starts off: Since we’re all disciples of Larry, let’s talk about code as law. So what is peer-to-peer? The concept comes out of client-server models, where you have a more powerful server that supplies information on demand to a client machine – consider, for example, the web browser.

In peer-to-peer, there’s no server – everyone is both a client and a server – a democratization of the client server model.

Of course, there are complex applications. Puretunes, for example, has a server with the music and the index to the music, so the client could just query. Napster had a central index of what each client had, and Napster just mediated a matchmaking process among the clients, who actually shared the files. The most purely peer to peer, we have gnutella, a query involves a network of peers passing along queries until a set of hits appear.

Note that the user doesn’t see anything particularly different among each of the processes, except for performance.

KaZaA is similar to gnutella, but certain computers are identified/promoted into being a supernode through performance and access considerations. Thus, this simplifies the number of queries when a search for a piece of music/file since you can start with supernodes, rather than simple peers.

So, there are lots of ways to do this – the question is which approach makes sense, and how does the law treat it?

Back to Charlie: So, here’s the KaZaA home page. And here’s how to find a song – Satisfaction by the Rolling Stones – lots of successes in the search with characteristics of the file, the node and the number of downloads. We can also monitor progress in download.

KaZaA has been quite successful; starting with the legal “crashing” of Napster, Gnutella arose with a good concept, but a relatively weak implementation because of the pure P2P. KaZaA’s supernode addition to the search strategy has led to agood compromise leading to strong performance. And, here’s the song…. (plays Satisfaction).

So, here’s a clear threat – As Jonathan asks, this is a brazenly illegal act that I just committed – I downloaded, and played for public performance – the “distinguished university exception”

Comment: the shared folder exposes you as now a new potential source of Satisfaction, so you are now actively joining the network, making Stanford a potential flagged infringer to the RIAA spiders.

Charlie: Exactly – and KaZaA comes with default setting not only to share everything that you download, but you are also potentially giving away all your bandwidth to support your sharing behavior. Moreover, the system prefers hardwired/broadband connections, making universities a key element of this network.

Currently, there are 4 million users, offering up 6 million gigabytes.

Now, instead of looking for a classic, let’s look for something news – Where is the Love by the Black Eyed Peas and Justin Timberlake. As we wait for the download, Charlie points out that the KaZaA folder is pretty much an open book, anyone can see what you are offering up.

And we find that Charlie has downloaded something that sounds like the song, but suddenly degrades into a cacaphony of sound – spoofed files (Z prefers the cacaphony to the snippet that appeared).

So a quick poll: P2P will change the industry (a few hands), the RIAA will respond in a number of legal and technical mechanisms that will allow them to hang on (Hatch, Berman, etc. cited)

Now Glenn: I’m going to talk about sampling – and I am about to cause some real legal trouble, I fear. Several names, mash-up, collage, bootleg remix, bastard pop – really, all collages. So can we characterize them, according to their legal status.

Dreamworks Collage or Hollywood Collage. Starting with the Austin Powers character as a paradoy, and Myers has signed a contract to give him access to essentially all of their catalog, so that he can put himself into these films. “Think of me as the Puff Daddy of film” – the rap art of movies. Sampling become something of a rich man’s name.

Beyonce Knowles is also cited, using samples in her music. She has also been put into several mash-ups. These mash ups are all copyright violations, illegal art. Since they cannot pay to get the samples, they are out of luck.

(A side point: Beyonce’s video has several NASA images, so it was assumed that there was public domain art used in the video. When contacted, however, the researcher for the producer indicated that, since they were in a hurry to get the video out, they simply paid for everything, rather than go to the time and expense of tracking down the specific owners of the public domain stuff. So, it’s come to the point that even real public domain stuff is effectively unavailable.)

Negativland art: U2 + Casey Kasem – bootleg recording of an outtake Casey Kasem mixed with a U2 song – ‘The Forbidden Single” – a voice over on top of U2’s music and Casey Kasem’s voice announcing U2. Illegal art – U2 sued and an injunction was awarded – the physical records all had to be supplied to the copyright holder for destruction, plus the equipment, etc. Get it from Negativland today – Illegal Art

Another one – the littlest mermaid – a bootleg that is an explicitly full of copyright lawyers threatening people issuing from the mouth of the littlest mermaid (see illegal-art.org)

The Hellraiser Collage: Christina Aguilera and the Strokes (a mashup) – and a video mashup was made once it was released – here it is. (Aside: Start with “Genie in a Bottle” –> “A Stroke of Genius” – a completely reimagined tempo, key, etc. Very, very clever thing to hear – stunning skill demonstrated) – is it a parody? Not exactly – it seems to work out pretty well – Illegal Art. The Strokes’ response – "it was a funny idea; but I’m not that impressed" – is it the case that, because they’re on the same label no litigation emerged?

The White & Red Stripes Collage: The White Stripes as a focus – an artist that added a bass line to White Stripes (an uninvited bassist adds a bass track – neil strauss in the times). But, by skipping the intermediaries (in this case, the bassist met the white stripes leader who give permission to the bassist to continue), the creativity was allowed

The Creative Commons Collage: but we also might be able to work around the instantaneous copyrighting of a creative work by getting the creator to formally relinquish certain parts of copyright rights in advance – by declaring a specific legal form, such as those defined by creative commons.

Some themes/keywords; parody, licensing, esthetics, consent, availability, and some other ideas to carry into the afternoon.

Alex: Sampling takes place all the time, even if you aren’t a musician, mashup artist, etc. The WWW and links means that many WWW sites are able to sample from other sites. Also, let’s consider OPML, a distributed writing tool. Or weblogs, picking and sampling from all over the web.

Then, there are large corporations doing this, too. E.g., Google. And Google has a number of services that collect, organize and deliver massaged content.

Questions this poses: everyone samples. What problems does this lead to – who’s the author, what are the boundaries, and who gets to specify them, and when will we get together and recognize that creative works are always based on a certain kind of sampling.

Glenn: Why are we living with a “wink-wink” legal system, and how hard is it to work within it.

Wendy: I want to broaden the question of sampling. Starting with music, expanding to text and into the domain of cultural sampling –

Let’s look at DaveZilla – a www page; and we have Sony’s Godzilla – and we have a legal response by Toho claiming infringement as well as a potential trademark infringement claims. Dave fights back, and an Internet response emerges by the apparent nonsensical assertion that Toho “own” Godzilla – the Zilla Liberation Front emerges and keeps pushing, still today.

Who’s right – the Toho Corp. or the internet community?

The Aibo and Sony – a programmable robotic dog. An independent programmer, at AiboPet, learned how to reprogram the Aibo so that it could dance. He also received a cease and desist, including hardware circumvention, etc. Again, a group rises up, arguing that this is the right of the owners to manipulate the owned device. (Although it now the LegitiMutt) Sony negotaites a middle position.

Other cultural mashups – appropriating different parts of the culture – Homer Aibo, etc.

The Aibo Kennel Club, allowing people to register their Aibo, leading to a cease and desist from the American Kennel Club (!)

It’s not just companies – politicians also get into this sort of fight – see whitehouse.org – and the Lynne Cheney brouhaha.

Others in trouble, or making the point, at least: www.enronownsthegop.com; www.jeb02.com; www.e-gray.com; www.gatt.org

What can the law do against these sorts of distributed cultural attacks? Who’s going to come out on top in these fights and why/how?

Charlie: There’s the questions and that’s our show and tell. We are left with some questions, and we’re going to address them as we go through the day.