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Wednesday, July 02, 2003 |
Application : MusicThe future of entertainment : music Professor Charles Nesson Professor Jonathan Zittrain Leslie Vadasz, director emeritus, Intel Corp. Fred von Lohmann, EFF
Fred: EFF wants to preserve the rights you had before the electronic world came along Leslie: Had testified in front of Hollings about protecting digital content. Hollings didn’t like what he said. Nesson: Problems of going towards a model like Fisher’s are immense. Interests will fight like hell to prevent such a plan. Z: Can we agree on framework that music industry should enjoy rights they had before the internet? Fred: Artists should. Recording Industry should not. Z: Companies are people too. Aren’t those rights being infringed more than ever? Fred: As matter of black letter copyright law – that is right. But, the law has changed so much via accident of technology as computers are able to copy things. Z: Is harm related to loss on bottom line Fred: Some of their claims are highly exaggerated. (e.g. units shipped has declined because they decided to stop selling cd singles) The downturn is not as big as they would have you believe. Movie industry, in contrast, is enjoying its most prosperous time. Intel and others would love to trade numbers with the recording industry. I would change the law to reflect the reality that 60 million Americans are using file sharing sw (wait a minute, that’s almost everyone accessing the internet, isn’t it? Are his numbers sane?) Z: Can you sue this problem into submission? N: It’s part of the problem. Usually, reaction is there are too many people to sue. But, if you discriminate, you will find the source, the headwaters of those that are the super nodes of the illegal distribution (In Colin Powell’s terms – you find the head, cut it off and kill it) Fred: But it doesn’t stay static. If the tech stood still, maybe. 1) Verizon is in US 2) Vast majority of p2p folks are outside US 3) So, you can’t stop. 4) An effort to get European ISP’s to cooperate will run into privacy issues 5) And, users take their own technical counter measures (like proxies) Z: Blubster from cnet.com – anonymous p2p Leslie Go to public wifi spots and download – then that is anonymous … Fred P2p is smarter than most counter measure. But, collateral damage that piles up may be severe. E.g. ISP has to give up data on its users to anyone that asks. Z Hey, Verizon notifies you that someone is looking for your data Fred But they don’t have to do that Nesson Let me take that argument all the way. If you are the music or movie industry – you won’t rest till all threats are gone. One of the items of collateral damage is the alteration of the basic architecture of the net. Fred Collateral damage is the main concern. …. Those powerful interests will press for more power . So alternative models like Fisher’s are attractive. Z Let’s ask Leslie as a technologist how readily can we adapt the technology so we don’t have a music industry having to sue everyone in sight. Leslie I am not speaking for Intel. I don’t think we stop anything. Z Trusted Computing Platform Leslie A machine used in a way that if you send a file – no one in between can access a file without your permission. Gives you privacy in open network. Z So, trusted alliance is developing blubster? Leslie You can’t talk or question what they do until you have enough information to judge what they are doing. Z I thought securing information against prying eyes was about producing a platform of unified hw/sw so that one could trust it would behave in certain ways. Leslie You are putting me in a position to defend something I know nothing about. But if I only want you to read the book that I wrote that should be my right Z Isn’t that creative commons? Fred Such a system would be interesting. But that is not what trusted computing is. We have talked to the alliance about their initiatives - All should learn more about trusted computing – large story for next 5 years – IBM pcs have relevant hw installed – It allows 1) you trust your own computer – like trust a virus has not been introduced 2) whether or not others can trust but MS never intended the system to defend against hw attacks from people with physical access to these machine. … Let’s assume there are people able to hack their hw- and they post their find on p2p using the same trusted computing techs- at that moment for every other user – that book that was protected becomes available. A trusted PC will still run unlabeled stuff. Z So, trusted computing is no threat to free ware? Fred The threat is lower than most people think Trusted computer has other more interesting questions. If all major banks demand you install following sw on your platform – all much power do you have to resist that? … TC is very Matrix like… Z Come on taxi cab meters are trusted systems? Fred Free the general purpose computer. Leslie When you have an open environment like the internet – you have to be able to provide tech to do that. … Question of University role vis-à-vis Verizon is interesting. They are supposedly in moral position to encourage students to obey the law. Plus they have user agreements that make it a contractual obligation. Granted they don’t have a monetary interest. Suppose someone offered as a service to look at shared folders in university domain and send nice letters to those offenders to cleanse the network. A university’s reaction is initially no – counter to culture of university – not in business to police students. The problem is within the rights owners to take up with the infringers. But offer a discount to the iTune service and perhaps you shift that population to a norm of following the law. … Q : What of developing countries that don’t have capital to pay for copyright? Fred: Talks of commission on intellectual property rights A condition of free trade with US was Nesson Last few years have been Information Imperialism (locking govts and others that in order to run technologies you need to keep paying copyright) hmm more tomorrow Audience All these copyrights are like machine of terror…. Business Software Alliance in …. Need to check other sites for notes – I lost some here 
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Content MarketProfessor Lawrence Lessig, Lessig: If synthesize technology, law and market together you may see a change in the market otherwise not seen directly. You are now ready to be “brainwashed” to accept this concept of free culture (ok, he’s jokin) Free markets, free will, free willie… But we are not saying free in terms of cost but in terms of characterization of the ecosystem (free trade vs free beer) Am not endorsing world where artists don’t get paid … 1928 – Walt Disney 1. Created steamboat willie a. Gave birth to Mickey Mouse b. Which gets us to Disney Co Buster Keaton (1928) created Steamboat Bill which is the source of Steamboat Willie This is a kind of creativity – walt Disney creativity – always parroting feature length films – always building upon work in public domain. Free culture is the freedom to take change and release adaptations of the culture around you… Speaks of “dojinshi” copycat comics in Why was Walt Disney creativity possible? 1. Legal Reason a. Duration – copyright supposed to be a limited time b. Important thing to focus on – public domain is the “lawyer free zone” where you don’t need to ask anyone what to do with that culture. c. Before 1774 in anlgo American tradition – copyrights were perpetual – House of Lords determined that terms were limited d. American constitution then replicated that idea that at some moment the item would pass into public domain e. Vast majority of work was public domain from time of creation as no one chose to exercise their right f. Avg copyright term has tripled in last 30 years (1973 – 28 years with a renewable term – 32.2 years avg) today it is maximum of 95 (courtesy of Sonny Bono Copyright Term Exension) g. Since copyrights don’t have to be registered – you don’t even know where to start to get permission to modify a work 2. Technology a. Reach of copyright i. Regulates techs that copies ii. Fair use 1. quote iii. Enter Internet 1. now every act is a copy 2. Copyright Office says you can have an action against you for using a work without owner’s permission. iv. Before Internet 1. Law was controlling (i.e. a Judge has to look at complaint) v. With internet – 1. You argue with the machine (controls, etc) – regulated by the code that gives you access to the work vi. Talks of aibopet.com – 1. teach you Aibo jazz 2. But, the DMCA says the dog can’t dance 3. so you have law protecting code protecting law 3. Market change a. Concentration (extraordinary) i. Copyright is a monopoly ii. Framers limited power of that monopoly iii. But the pettiness has changed 1. Size – 80% of music by 5 companies a. 70% of radio by 4 b. 80% of newspaper c. only .5% foreign films in market 2. scope a. 1969 – Lear – Archie Bunker b. ABC wanted him to tone it down c. He got racier every time d. So he took it to CBS e. That was artistic control rule at that time separated content from conduit f. 1994 a change in rules – abolished Fin-Syn rules i. Valenti fought (get those quotes) in congressional testimony saying the customer would lose. g. FCC relaxed ownership rules on media 4. Never have a fewer number of actors exercised more control over development of culture. So no one can do to Disney what Disney did to the Brothers Grimm 5. This is insane, unintended consequence of the confluence of these changes – 200 years of lobbyists pushing on one side of equation. 6. Property v. piracy a. 1995 Eldred starts building free library b. 1998 Sonny Bono Act took some works out of domain c. gave birth Eldred v. Ashcroft d. Court said up to congress 7. Two ideas for alternatives a. ALL b. NONE c. But there is room for SOME d. Solving for the extremes denies SOME e. Creative Commons provides for the middle (SOME) 8. Defending “fair use” is bad way of understanding what we want. a. Ought to discuss free use. Fisher Another proposal in the same spirit of moderation and aspiration to craft a legal system that simultaneously respects legitimate interests of creators while affording maximum oppties for consumers to access it and exercise their creativity. Specific target is music and film industries. Remember, evolution of legal system has been interpreted to impede benefits of internet distribution of digital entertainment. A couple of ways to look at 1. To enhance property rights 2. Regulate the industry 3. An alternative compensation system Governments have experimented on managing problem of underproduction of public goods 1. Government provides it (armed forces, light houses) 2. Government subsidizes it (e.g. NSF) 3. Government issues prizes (reward system for atomic energy inventions) 4. Government confers monopoly power on producers a. e.g. 19th c. toll roads, intellectual-property rights 5. Govt assists private parties in increasing “excludability” a. Trade-secret law b. Anti-circumvention law Strategy 4 and 5 are not working any longer as mechanisms Recommendation is to reconsider merits of strategy 3 How work? (details at www.tfisher.org ) 1. Register a. Copyright owners get unique id # b. Unique id # inserted into file name c. Application designates i. Any other registered digital recordings incorporated into the work ii. Duration of the incorporated work d. Registration fee 2. Taxation a. Provide creators full social surplus of their efforts b. Fairness c. Make creators, as a group, whole d. Preserve a flourishing entertainment culture So what would that cost 1. Music Industry ??? billion (taking from published estimates of losses 2. Film - $1.7 billion 3. Admin costs 4. Total 2.4 billion So he runs tax tables on cds, internet access, etc to pay for this 3. Count consumption a. Webcast play lists b. Count downloads c. P2p systems county sharing registration numbers d. Surveys e. Sales of pre-recorded cds 4. Payment a. Distribute money in proportion with frequency that each creator has works consumed 5. Lift copyright system and DMCA Who gets hurt? 1. Manufacturers 2. Distributors 3. Retailers 4. Record Companies and Studios?? Only if they don’t change business model Demerits of plan 1. Distortions and Cross-subsidies 2. Giving a govt agency considerable power comment [] 6:34:05 PM
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Content : Law
Promises to Keep: Technology, Law and the Future of EntertainmentProfessor William Fisher, Applying principles (not fair - -he hands out a print copy of his slides – where’s the electronics? And he warns he will run fast… so this will be cryptic) I. Potential Benefits of Technologies a. Types i. Downloading ii. Interactive streaming – at request of recipient iii. Non-interactive streaming – not at recipient request b. Why care? i. Benefits 1. Cost savings – he shows a pie chart of price of compact disc as distributed across cost functions a. 38% retail store b. 8% distributor c. 31% to Record company d. 12% recording artist e. 4% music publisher 2. Internet distribution costs a. 4% publisher b. 12% artist c. (hmmm.. then what) well look at: 3. Functions of record companies a. A&R b. Production c. Promotion d. Distribution e. Risk Spreading 4. Consider that internet distribution helps decrease a. Production b. Promotion c. Distribution d. Risk spreading 5. Result is a. Increased revenues for Artists, Writers b. Decreased costs to consumers c. Decreased costs for record companies 6. Internet distribution of unsecured digital files a. Cost savings b. Eliminate overproduction and underproduction c. Convenience and precision d. Increase number and variety of musicians i. Reduced costs of production ii. More niche channels – creating demand e. Semiotic Democracy i. Increasing participation of public at large in shaping culture 7. Dangers a. Threatens revenues of creators i. artist don’t get paid ii. threatens moral rights 1. entitlement to protect integrity of creation II. Background : Copyright Law circa 1990 a. Objects of protection i. Musical compositions 1. rights of reproduction 2. derivative works 3. distribution 4. public performance ii. Sound recordings (performer has independent right) 1. reproduction 2. derivative works 3. distribution b. Exceptions and limitations i. First sale doctrine (Can’t control what purchaser does with the copy) ii. Compulsory licenses 1. jukeboxes 2. PBS licenses 3. cable and satellite retransmissions 4. cover license (must pay compulsory royalty) iii. Fair Use 1. betamax case (1984) Purpose and Character of use a. commercial use disfavored b. transformative uses preferred c. parody strongly preferred d. propriety of defendant’s conduct relevant 2. Nature of the copyrighted work a. Fictional works/factural works b. Unpublished/published 3. Amount and importance of the portion used 4. Impact on potential market a. Rival definitions of “potential market” b. Only substitution effects are cognizable c. Promotional system description i. Licensing structure ii. Payment flow iii. Payola (yep, still exists - $100 million per year) ( (Discussion of points of BetaMax Case) … III. Cycles of Innovation and Resistance a. Innovation/resistance i. DAT recorders – Industry feared perfect copies 1. Leg – Audio Home Recording Act a. Serial copyright mgt system b. Tax and royalty system c. Safe harbor for noncommercial copying 2. Industry frustrated recorder introduction ii. Encryption circumvention – DMCA Sec. 1201 1. CSS - deCSS 2. SDMI - Felten 3. RealMedia switch - streamripper 4. Ebook reader (adobe) - sklyrov iii. Lockers – mp3.com litigation 1. mymp3.com a. beam-it service b. instant listening service iv. webcasting - DPRA limitations (114) v. centralized file sharing (napster) A&M claim closely paralleled the betamax claim. Napster copied the Sony defense. And lost vi. p2p vii. CD burning IV. Defeats of the Resultant System a. Copyright provision has doubled in length b. High transaction costs c. Price to consumers of access remain high d. No celestial jukebox e. Curtailment of fair use f. Continued concentration of music industry g. P2p threatens artist revenues V. Where do we go from here?
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Content: Technology
Professor Charles Nesson, Harvard Law Glenn Brown, Exec Dir, Alexander Macgilvray, IP Counsel, Google Wendy Seltzer, Staff Attorney, EFF Lessig: In our structuring of the material in this course, Yochai layed out three layers. Yesterday we focused on physical and logical. Today we focus on content. Today we will walk thru the scope of tech affecting content, the law affecting content, and the market affecting content. Nesson: Want to introduce to you some examples of downloading and the problems they present, and some of the responses that have been articulated. Alex: Many don’t understand what peer-to-peer is. Comes out of world of client/server. Client makes requests of server, and process the return. Peer to peer – peers are equal. They get and send messages to each other. In the music space: Puretunes – company in Napster – server kept index of what all clients possessed. Server would tell you where the song requested was located. The peer-to-peer happened only on the file exchange Gnutella – is pure P2P. Same question, but all peers query each other to find the answer. Course, the user doesn’t know the difference between the two models as they get the same results. Kazaa – some peers act slightly different. There are supernodes. These supernodes control their regions (not unlike DNS) … once peer id’d, the exchange takes place P2P. Nesson: Demonstrates kazaa. Gnutella was good in deterring legal attack but not efficient in downloading. Kazaa – using supernodes – is more effective at downloading while avoiding the legal pratfalls. Course, the download does infringe the copyright – but the user is the guilty party. Audience: but Stanford’s network is now guilty of aiding and abetting the illegal copying of the piece. Once you download, you do become a member of the kazaa network. Course, the members with biggest pipes (dsl and better) make them the more popular sites. So most of the resource of illegally shared music resides in the university communities as they have the biggest pipes. Almost 5 million users, over a billion files shared. PER DAY As Nesson demonstrates kazaa, I can certainly see why kids eat this up… Course, your kazaa folder is an open book and a rep from the music industry can inspect what you have. He demonstrated a “spiked” file --- sounds like a record skipping…. Which came from kazaa network – and the users didn’t know which is which Is the recording industry dead as we know it? Or, has the RIAA just begun to fight? Talks of Hatch applauding tech tools to destroy computers of those copying songs… |