Copyright in Eight Years

So today copyright scholar Joe Liu at Boston College asked a room full of law professors an interesting question. What did we think copyright would look like in 8 years? Here were some of the main categories of predictions (some contradict):

1. Primarily a criminal regime (remember when copyright was considered civil law?)
2. Focused on control of the design of hardware & software (in the model of the Broadcast Flag) to prevent infringement ex ante;
3. A regime dedicated to preserving the retail market and revenue streams for 4 discs: (CDs, DVDs, Software CDs, and Video-Game CDs), having given up on nearly everything else;
4. Made in WIPO or the FCC as often as the U.S. Congress;
5. Gone (not a good bet).

Any others?

Posted in good law | 11 Comments

Cameras at Concerts

bpeas.jpg

Last week I went to a Black Eyed Peas concert at the Avalon in Boston. It was a DNC event sponsored by the RIAA, and at the doors, big signs were posted everywhere: “Absolutely No Cameras.”

The result: Chaos in the line, as people were sent home after failing cell phone inspection. The choice was to leave your phone / camera behind or leave the concert. People were mad. (“Where is the love?” they asked). So I asked the bouncer, “what’s this about?”

And he said “It’s not our deal. Its those guys [the sponsors].”

So perhaps this is becoming routine and I’m late to it. But can the idea really be (as this suggests) that cell phone pictures of a band are considered a competitive threat? There’s controlling, and then there’s obsessive-compulsive.

Posted in just plain weird | 37 Comments

Wire-tapping VoIP

The FCC today tenatively concluded that most Voice-over IP providers will likely have to comply with a major federal wiretapping statute, the Communications Assistance for Law Enforcement Act (CALEA). This means companies like Vonage will probably soon have to provide law enforcement with some way to tap their service.

I don’t consider the vote particularly surprising — VoIP phones look like telephones, and who’s going to vote against national security? But I nonetheless think the approach unfortunate.

Here’s why. VoIP, despite the incessant hype, is still a baby. There has still been more said about VoIP than actually using VoIP. Yet this infant has already attracted more regulatory attention than many grown-up technologies. That kind of attention is not a good thing for a youngster: too much light makes the baby go blind. Its a bad thing to have startups spending their time thinking about regulatory compliance instead of better service. Having the the FCC and Congress as foster-parents is at best like being a child-star and at worst like being raised by alcoholics. Either way, stunted growth is a likely outcome.

I think the FCC and Congress do better to regulate what actually exists, not what is supposedly “on its way.” Just think “Digital Television.”

For people who are really into this stuff, a few more notes. The FCC’s NPRM is not yet available, but we learn about it from the various statements, in particularly Chairmain Powell’s.

Two bits of what might be taken as good news for VoIP providers. First, the NPRM interestingly seems to leave both instant messaging and “disintermediated” or “unmanaged” VoIP outside of CALEA. That strikes me as good news, and a sign that that the rule-making will leave definite room for unfettered innovation in at least some areas.

Second, there’s hard statutory question, as noted by Commissioner Copps: whether VoIP is really “a replacement for a substantial portion of the local telephone exchange,” as opposed to mainly an “information service.” (The statute exempts information services from CALEA). The point is, VoIP could be a “substantial replacement” someday, but it certainly isn’t yet. Hence the silver lining for VoIP companies may be a serious risk of the rules being struck down. something Commissioner Abernathy freely admits.

Posted in NetNeutrality | 8 Comments

We the Media

The full text of Dan Gillmor’s book “We the Media,” about blogs and other things, is now online. (Thanks to fellow alper Cory Doctorow).

Posted in creative commons | 2 Comments

Reasons

Years ago, when I was a law clerk, I was impressed by how much Judge Posner could accomplish with one simple question. He would ask, “What exactly is the purpose of this law (or proposed rule)?” It was astonishing how often lawyers would stare or gasp, unable to answer this most basic of questions.

I think the least you can ask of government, whatever branch, is that it always have an answer to Posner’s question. When acting on behalf of the public, it ought always have a clear reason for what it is doing, that it can articulate without shame, sloganeering, or reliance on non-existent evidence. Is that too much too ask?

Yet so often Government is failing this simplest of tests. Copyright, our favorite topic, is full of stuff that lacks what lawyers call a rational basis. If you really ask — what does it accomplish to extend copyright on existing works by 20 years? How does that promote the progress of Science? There just isn’t, and wasn’t an answer.

Or this weekend, as the Adminstration put the nation in a state of fear with heightened terror warnings. We should expect a reason, and good reason. Fear is very expensive. But we read instead that years-old evidence justified the action? We’re not in a position to know better, but why can’t the Administration explain why it is doing what it does? Why can’t it give reasons for its actions that don’t insult our intelligence?

Or consider the Supreme Court, which in Blakely, seemed to strike the sentencing guidelines and created chaos in the district courts. Again, to what end? Can the Court even articulate what it thinks it is accomplishing?

I don’t think Government by reason is too much to ask for. But it certainly isn’t what we’re getting.

Posted in ideas | 12 Comments

The DMCA: Not controversial

Last week I was chatting with a friend who now works on the House Ways and Means Committee. Talk turned to the Australia-US Free Trade Agreement, which Congress passed in July and which President Bush ratified yesterday.

“That DMCA and copyright term extension stuff,” he said to me, “None of it was really seen as controversial.”

“Some people consider it controversial” I said.

“I’m sure you’re right, and that’s what I thought” he said, “But we only got letters from the library people.” A pause. “Its become a standard clause, and doesn’t really get much attention. If people care about it, they need to do more.”

He’s right. Years of DMCA & term extension criticism can easily boil down to “not controversial.”

Posted in politics | 11 Comments

Broadcast Flag Burning

I wasn’t convinced that the broadcast flag was such a big deal. But this story about Tivo asking the FCC for permission to add new features is changing my mind. Creative destruction doesn’t ask for permission. (Thanks to Jonathan Zittrain, Susan Crawford).

Posted in Uncategorized | 4 Comments

Exit Valenti

Jack Valenti says goodbye in the LA Times today, rating his career “AE–always exciting.” A few better and less-well known Valentisms from the King-Kong of lobbyists:

On the nascent cable industry, in 1974
“[Cable will become] a huge parasite in the marketplace, feeding and fattening itself off of local television stations and copyright owners of copyrighted material. We do not like it because we think it wrong and unfair.”

On the dangers on media concentration, 1984 Op-Ed
“Will a democratic society allow just three corporate entities to wield unprecedented dominion over television, the most decisive voice in the land? There are now only three national networks …. There will never be more than three national networks.”

On the public domain, 1995
“A public domain work is an orphan. No one is responsible for its life. But everyone exploits its use, until that time certain when it becomes soiled and haggard, barren of its previous virtues. How does the consumer benefit from the steady decline of a film’s quality?”

On the meaning of Copyright, 1983
“[We face a threat to] the life-sustaining protection, I guess you would call it, on which copyright owners depend, on which film people depend, on which television people depend and it is called copyright.”

On Foreign Policy, 1984
“We hit Jamaica over the head with a two-by-four.” [After successful efforts to restrict U.S. foreign aid unless Jamaican studios began paying royalties].

On the VCR, 1983
“We are facing a very new and a very troubling assault … and we are facing it from a thing called the video cassette recorder and its necessary companion called the blank tape.
We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry … whose total future depends on its protection from the savagery and the ravages of this machine [the VCR].”
“[Some say] that the VCR is the greatest friend that the American film producer ever had. I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

On the meaning of value, 1983
“Nothing of value is free. It is very easy … to convince people that it is in their best interest to give away somebody else’s property for nothing, but even the most guileless among us know that this is a cave of illusion where commonsense is lured and then quietly strangled.”

On the Internet versus Intellectual Property, 1996
“[If Congress fails to act,] the information superhighway … will collapse the great wonder of intellectual property. The country will be the loser. Big time.”

On potential copyright immunities for ISPs, 1996
“This is a loophole larger than a parade of eight-wheelers through which a dam-busting avalanche of violations can rupture the purpose of your bill every day.”

On lobbying
“I like to pour all the blood, muscle and sinew I can into a fight… downplay your own self-interest and make a senator look like a hero for voting with you.”

And the Valenti slogan
“If you cannot protect what you own, you don�t own anything.”

Posted in cc | 11 Comments

The Copyright Gap

Here’s the hypothesis: Today’s telecom and copyright laws often regulate similar subjects, but with a big difference. The telecom laws slightly favor market entrants, while the copyright laws favor the incumbent disseminators. The result is a “copyright gap” that grows larger every day.

Imagine you’re a startup, a market entrant, with a new way of getting information to people. Would you want to enter a market regulated by copyright or the telecommunication laws?

Under U.S. telecommunications law, you’ll likely be unregulated as compared to the your incumbent competitors. That’s what made Vonage a success–it doesn’t face the rules that control Verizon. It also what made AOL a success in the 1990s and WiFi in the 2000s. The only thing you need to fear today is possible network discrimination, though the net neutrality movement and Michael Powell’s threats have helped keep that in check.

Yet if you happen to fall under the copyright laws — you have a better way of delivering material that’s copyrighted — the structure of copyright says you need the permission of the market incumbents to carry on a regular business. Think of the story of internet radio, or KaZaA, iTunes and so on.

The result: The Copyright Gap. We have great, competitive VoIP and email markets, but still don’t have much in the way of Internet TV, video-on-demand, or the giant internet libraries once promised. Now obviously there are some justifications for this regulatory disparity, but to my mind not particularly convincing ones.

Posted in ideas | 11 Comments

An agreement that may change the world

For the developing world, farm subsidies are slow-motion weapons of mass destruction. Yesterday’s WTO agreement is the first multilateral deal in a decade that pledges reductions. If it holds, much could change — but it could also mean new pressures for adherence to international IP laws.

In 1994 developing countries made a deal at the WTO. In exchange for TRIPS (the Trade Related Intellectual Property Agreement), they were supposed to get major reductions in agricultural and textile subsidies.

It was a bad deal. The world got TRIPS, but it didn’t get much of the agricultural reform that was promised. Europe, the United States, and Japan have mostly moved backward on agriculture since 1994. The average European cow lives on $2.50 a day subsidy when 3 billion people live under $2 a day. The average Japanese cow, meanwhile, lives on a healthy $7.50 a day, rather like a college student.

But yesterday’s deal is a new hope. It agrees most prominently to reductions in cotton subsidies. We in the U.S. pay out $4 billion a year to 25,000 cotton farmers who then produce $3 billion a year in cotton. That’s $160,000 per farmer — we’d save alot of money by just opening a federal amusment park that employs everyone in the cotton industry.

But the question remains: this time, will the U.S., Europe and Japan have the political will to make the reductions we have agreed to?

Here’s the actual agreement, heavy in trade lingo.

Posted in International | 7 Comments