net.wars

It's not going out on much of a limb to predict that 2010 is, finally, the year of the ebook. A lot of electrons are going to be spilled trying to predict the winners on this frontier; the most likely, I think, are Apple (iPhone, iPad), Amazon (Kindle), Google (Books), and Ray Kurzweil (Blio). Note something about all those guys? Yes: none of them are publishers. Just like the music industry, publishers have left it to technology companies to invent their new medium for them.

Note something else about what those guys are not? Authors. Almost everything that's created in this world - books, newspapers, magazines, movies, games, advertising, music, even some industrially designed products - eventually goes back to one person sitting in a room with a blank sheet of paper trying to think up a compelling story.

Authors - and writers generally - used to have a hard but easy job: deliver a steady stream of publishable work, and remuneration will probably happen. Publishers sold books; authors just wrote them. One of my friends, a science fiction writer contractually bound to HarperCollins, used to refer to Rupert Murdoch as "the little man who publishes my books for me". That happy division of labor did not, of course, provide all, or even most writers with a full-time living. But the most important thing authors want is for their work to be noticed; publishers could make that happen.

Things have been changing for some time. It's fifteen years since authors of my acquaintance began talking about the need to hire your own publicist because unless you had a very large (six figures and up) advance most mainstream publishers would not consider your book worth spending money and effort to market it much beyond sending out a press release. Even copy-editing is falling by the wayside, as a manuscript submitted electronically can now feed straight into a typesetting system without the human intervention that gave pause for rethought.

"Everyone's been seeing their royalty statements shrink," a friend observed gloomily last week. He made, 20 years ago, what then seemed an intelligent career decision: to focus on writing reference books because they had a consistent market among people who really needed them, and they would have a continuing market in regular updates. And that worked great until along came Wikipedia online dictionaries and translation engines and government agency Web sites and blogs and picture galleries, and now, he says, "People don't buy reference books any more." I am no exception: all the reference books on the shelves behind my desk are at least 15 years old. About 10 percent are books I'd buy today if I didn't already have them.

So this is also the year in which the more far-seeing authors get to figure out what their future business models are going to be. An author with a business plan? Who ever heard of such a thing? The nearest thing to that in my acquaintance is the science fiction writer Charles Stross; he is smarter about the economic and legal workings of publisher than anyone I've ever met or heard speak at a conference. And even he is asking for suggestions.

First of all, there's the Google Books settlement, which is so complicated that I imagine hardly any of the authors whose works the settlement is a settlement of can stand to read the whole thing. The legal scholar and MacArthur award winner Pamela Samuelson has written a fine explanation of the problems; authors had until January 28 to opt out or object. This isn't over yet: the US Justice Department still doesn't like the terms.

We can also expect more demarcation disputes like this week's spat between Amazon and Macmillan, discussed intelligently by Stross here, here, and here, with an analysis of the scary economics of the Kindle here. The short version: Macmillan wants Amazon to pay more for the Kindle versions of its books, and Amazon threw Macmillan's books out of its .com pram. Caught in the middle are a bunch of very pissed-off authors, who are exercising their rights in the only way they can: by removing links to Amazon and substituting links to the competition: Barnes and Noble and independent booksellers including the wonderful Portland, Oregon stalwart, Powells.

To be fair, removing the "buy new" button from all of the Macmillan listings on Amazon.com (Amazon.co.uk seems to be unaffected) doesn't mean you can't buy the books. In general, you simply click on a different link and buy the book from a marketplace seller rather than Amazon itself. Amazon doesn't care: according to its SEC filings, the company makes roughly the same profit whoever sells the book via its site.

It's times like these when you want to remember the Nobel Laureate author Doris Lessing's advice to all writers: "And it does no harm to repeat, as often as you can, 'Without me, the literary industry would not exist: the publishers, the agents, the sub-agents, the sub-sub agents, the accountants, the libel lawyers, the departments of literature, the professors, the theses, the books of criticism, the reviewers, the book pages - all this vast and proliferating edifice is because of this small, patronized, put-down, and underpaid person.'"

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of the earlier columns in this series.

Posted by Wendy M. Grossman at 2:48 PM | Permalink | Comments (0) | TrackBacks (0)

Most corporate annual reports seek to paint a glowing picture of the business's doings for the previous year. By law they have to disclose anything really unfortunate - financial losses, management malfeasance, a change in the regulatory landscape. The International Federation of the Phonographic Industry was caught in a bind writing its Digital Music Report 2010 (PDF) (or see the press release). Paint too glowing a picture of the music business, and politicians might conclude no further legislation is needed to bolster the sector. Paint too gloomy a picture, and ministers might conclude theirs is a lost cause, and better to let dying business models die.

So IFPI's annual report veers between complaining about "competing in a rigged market" (by which they mean a market in which file-sharing exists) and stressing the popularity of music and the burgeoning success of legally sanctioned services. Yay, Spotify! Yay, Sky Songs! Yay, iTunes! You would have to be the most curmudgeonly of commentators to point out that none of these are services begun by music companies; they are services begun by others that music companies have been grudgingly persuaded to make deals with. (I say grudgingly; naturally, I was not present at contract negotiations. Perhaps the music companies were hopping up and down like Easter bunnies in their eagerness to have their product included. If they were, I'd argue that the existence of free file-sharing drove them to it. Without file-sharing there would very likely be no paid subscription services now; the music industry would still be selling everyone CDs and insisting that this was the consumer's choice.)

The basic numbers showed that song downloads increased by 10 percent - but total revenue including CDs fell by 12 percent in the first half of 2009. The top song download: Lady Gaga's "Poker Face".

All this is fair enough - an industry's gotta eat! - and it's just possible to read it without becoming unreasonable. And then you hit this gem:

Illegal file-sharing has also had a very significant, and sometimes disastrous, impact on investment in artists and local repertoire. With their revenues eroded by piracy, music companies have far less to plough back into local artist development. Much has been made of the idea that growing live music revenues can compensate for the fall-off in recorded music sales, but this is, in reality, a myth. Live performance earnings are generally more to the benefit of veteran, established acts, while it is the younger developing acts, without lucrative careers, who do not have the chance to develop their reputation through recorded music sales.

It is a truth rarely acknowledged that all new artists - and all old artists producing new work - are competing with the accumulated back catalogue of the past decades and centuries.

IFPI of course also warns that TV, book publishing, and all other media are about to suffer the same fate as music. The not-so-subtle underlying message: this is why we must implement ferocious anti-file-sharing measures in the Digital Economy Bill, amendments to which, I'm sure coincidentally, were discussed in committee this week, with more to come next Tuesday, January 26.

But this isn't true, or not exactly. As a Dutch report on file-sharing (original in Dutch) pointed out last year, file-sharing, which it noted goes hand-in-hand with buying, does not have the same impact on all sectors. People listen to music over and over again; they watch TV shows fewer but still multiple times; if they don't reread books they do at least often refer back to them; they see most movies only once. If you want to say that file-sharing displaces sales, which is debatable, then clearly music is the least under threat. If you want to say that file-sharing displaces traditional radio listening, well, I'm with you there. But IFPI does not make that argument.

Still, some progress has been made. Look what IFPI says here, on page 4 in the executive summary right up front: "Recent innovations in the à-la-carte sector include...the rollout of DRM-free downloads internationally." Wha-hey! That's what we told them people wanted five years ago. Maybe five years from now they'll be writing how file-sharing helps promote artists who, otherwise, would never find an audience because no one would ever hear their work.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, follow on Twitter, or send email to netwars@skeptic.demon.co.uk.

Posted by Wendy M. Grossman at 4:15 PM | Permalink | Comments (0) | TrackBacks (0)

As we're so fond of saying, technology moves fast, and law moves slowly. What we say far less often is that law should move slowly. It is not a sign of weakness to deliberate carefully about laws that affect millions of people's lives and will stay on the books for a long, long time. It's always seemed to me that the Founding Fathers very deliberately devised the US system to slow things down - and to ensure that the further-reaching the change the more difficult it is to enact.

Cut to today's Britain. The Internet may perceive censorship as damage and route around it, but politicians seem increasingly to view due and accountable legal process as an unnecessary waste of time and try to avoid it. Preventing this is, of course, what we have constitutions for; democracy is a relatively mature technology.

Today's Digital Economy bill is loaded with provisions for enough statutory instruments to satisfy the most frustrated politician's desire to avoid all that fuss and bother of public debate and research. Where legislation requires draft bills, public consultations, and committee work, a statutory instrument can pass both houses of Parliament on the nod. For minor regulatory changes - such as, for example, the way money is paid to pensioners (1987) - limiting the process to expert discussion and a quick vote makes sense. But when it comes to allowing the Secretary of State to change something as profound and far-reaching in impact as copyright law with a minimum of public scrutiny, it's an outrageous hijack of the democratic process.

Here is the relevant quote from the bill, talking about the Copyright, Designs, and Patents Act 1988:

The Secretary of State may by order amend Part 1 or this Part for the purpose of preventing or reducing the infringement of copyright by means of the internet, if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur.

Lower down, the bill does add that:

Before making any order under this section the Secretary of State must consult such persons who the Secretary of State thinks likely to be affected by the order, or who represent any of those persons, as the Secretary of State thinks fit.

Does that say he (usually) has to consult the public? I don't think so; until very recently it was widely held that the only people affected by copyright law were creators and rights holders - these days rarely the same people even though rights holders like, for public consumption, to pretend otherwise (come contract time, it's a whole different story). We would say that everyone now has a stake in copyright law, given the enormously expanded access to the means to create and distribute all sorts of media, but it isn't at all clear that the Secretary of State would agree or what means would be available to force him to do so. What we do know is that the copyright policies being pushed in this bill come directly from the rights holders.

Stephen Timms, talking to the Guardian, attempted to defend this provision this way:

The way that this clause is formed there would be a clear requirement for full public consultation [before any change] followed by a vote in favour by both houses of Parliament."

This is, put politely, disingenuous: this government has, especially lately - see also ID cards - a terrible record of flatly ignoring what public consultations are telling them, even when the testimony submitted in response to such consultations comes from internationally recognized experts.

Timms' comments are a very bad joke to anyone who's followed the consultations on this particular bill's provisions on file-sharing and copyright, given that everyone from Gowers to Dutch economists are finding that loosening copyright restrictions has society-wide benefits, while Finland has made 1Mb broadband access a legal right and even France's courts see Internet access as a fundamental human right (especially ironic given that France was the first place three strikes actually made it into law).

In creating the Digital Economy bill, not only did this government ignore consultation testimony from everyone but rights holders, it even changed its own consultation mid-stream, bringing back such pernicious provisions as three-strikes-and-you're-disconnected even after agreeing they were gone. This government is, in fact, a perfect advertisement for the principle that laws that are enacted should be reviewed with an eye toward what their effect will be should a government hostile to its citizenry come to power.

Here is some relevant outrage from an appropriately native British lawyer specializing in Net issues, Lilian Edwards:

So clearly every time things happen fast and the law might struggle to keep up with them, in future, well we should just junk ordinary democratic safeguards before anyone notices, and bow instead to the partisan interests who pay lobbyists the most to shout the loudest?

Tell me to "go home if you don't like it here" because I wasn't born in the UK if you want to, but she's a native. And it's the natives who feel betrayed that you've got to watch out for.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of the earlier columns in this series. Readers are welcome to post here, follow on , or send email to netwars@skeptic.demon.co.uk.

Posted by Wendy M. Grossman at 8:57 PM | Permalink | Comments (0) | TrackBacks (0)

This was supposed to be the week that the future of Google Books became clear or at least started to; instead, the court ordered everyone to go away and come up with a new settlement (registration required). The revised settlement is due by November 9; the judge will hear objections probably around the turn of the year.

Instead this turned into the Week of the Postcode, after the Royal Mail issued cease-and-desist letters to the postcode API service Ernest Marples (built by Richard Pope and Open Rights Group advisory council member Harry Metcalfe). Marples' sin: giving away postcode data without a license (PDF).

At heart, the Postcode spat and the Google Books suit are the same issue: information that used to be expensive can now be made available on the Internet for free, and people who make money from the data object.

We all expect books to be copyrighted; but postcodes? When I wrote about it, astonished, in 1993 for Personal Computer World, the spokesperson explained that as an invention of the Royal Mail of course they were the Royal Mail's property (they've now just turned 50). There are two licensed services, the Postcode Address File (automates filling in addresses) and PostZon, the geolocator database useful for Web mashups. The Royal Mail says it's currently reviewing its terms and licensing conditions for PostZon; based on the recent similar exercise for PAF (PDF) we'll guess that the biggest objections to giving it away will come from people who are already paying for it and want to lock out competitors.

There's just a faint hint that postcodes could become a separate business; the Royal Mail does not allow the postcode database and mail delivery to cross-subsidize (to mollify competitors who use the database). Still, Charles Arthur, in the Guardian, estimates that licensing the postcode database costs us more than it makes.

This is the other sense in which postcodes are like Google Books: it costs money to create and maintain the database. But where postcodes are an operational database for the Royal Mail, books may not be for Google Wired UK has shown what happens when Google loses economic interest in a database, in this case Google Groups (aka, the Usenet archive).

But in the analogy Google plays the parts of both the Royal Mail (investing in creating a database from which it hopes to profit) and the geeks seeking to liberate the data (locked-up, out-of-print books, now on the Web! Yeah!). The publishers are merely an intervening toll booth. This is one reason reactions to Google Books have been so mixed and so confusing: everyone's inner author says, "Google will make money. I want some," while their inner geek says, "Wow! That is so *cool*! I want that!".

The second reason everyone's so confused, of course, is that the settlement is 141 pages of dense legalese with 15 appendices, and nobody can stand to read it. (I'm reliably told that the entire basis for handling non-US authors' works is one single word: "If".) This situation is crying out for a wiki where intellectual property lawyers, when they have a moment, can annotate and explain. The American Library Association has bravely managed a two-page summary (PDF).

What's really at stake, as digital library expert Karen Coyle explained to me this week, is orphan works, which could have long ago been handled by legislation if everyone hadn't gotten all wrapped up in the Google Books settlement. Public domain works are public domain (and you will find many of those Google has scanned in quietly available at the Internet Archive, where someone has been diligently uploading them. Works whose authorship is known have authors and publishers to take charge. But orphan works...the settlement would give a Book Rights Registry two-thirds of the money Google pays out to distribute to authors of orphan works. This would be run by the publishers, who I'm sure would put as much effort into finding authors to pay as, as, as...the MPAA@@. It was on this basis that the Department of Justice objected to the settlement.

The current situation with postcodes shows us something very important: when the Royal Mail invented them, 50 years ago, no one had any idea what use they might have outside of more efficiently delivering the mail. In the intervening time, postcodes have enabled the Royal Mail to automate sorting and slim down its work force (while mysteriously always raising postage); but they have also become key data points on which to hang services that have nothing to do with mail but everything to do with location: job seeking, political protest, property search, and quick access to local maps.

Similarly: we do not know what the future might hold for a giant database of books. But the postcode situation reminds us what happens when one or two stakeholders are allowed to own something that has broader uses than they ever imagined. Meanwhile, if you'd like to demand a change in the postcode situation this petition is going like gangbusters.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of the earlier columns in this series. Readers are welcome to post here, follow on Twitter, or send email to netwars@skeptic.demon.co.uk.

Posted by Wendy M. Grossman at 3:36 PM | Permalink | Comments (0) | TrackBacks (0)

It's not so long ago - 2004, 2005 - that the BBC seemed set to be the shining champion of the Free World of Content, functioning in opposition to *AA (MPAA, RIAA) and general entertainment industry desire for total content lockdown. It proposed the Creative Archive; it set up BBC Backstage; and it released free recordings of the classics for download.

But the Creative Archive released some stuff and then ended the pilot in 2006, apparently because much of the BBC's content doesn't really belong to it. And then came the iPlayer. The embedded DRM, along with its initial Windows-only specification (though the latter has since changed), made the BBC look like less of a Free Culture hero.

Now, via the consultative offices of Ofcom we learn that the BBC wants to pacify third-party content owners by configuring its high-definition digital terrestrial services - known to consumers as Freeview HD - to implement copy protection. This request is, of course, part of the digital switchover taking place across the country over the next four years.

The thing is, the conditions under which the BBC was granted the relevant broadcasting licenses require that content be broadcast free-to-air. That is, unencrypted, which of course means no copy protection. So the BBC's request is to be allowed instead to make the stream unusable to outsiders by compressing the service information data using in-house-developed lookup tables. Under the proposal, the BBC will make those tables available free of charge to manufacturers who agree to its terms. Or, pretty clearly, the third party rights holders' terms.

This is the kind of hair-splitting the American humorist Jean Kerr used to write about when she detailed conversations with her children. She didn't think, for example, to include in the long list of things they weren't supposed to do when they got up first on a Sunday morning, the instruction not to make flour paste and glue together all the pages of the Sunday New York Times. "Now, of course, I tell them."

When the BBC does it, it's not so funny. Nor is it encouraging in the light of the broader trend toward claiming intellectual property protection in metadata when the data itself is difficult to restrict. Take, for example, the MTA's Metro-North Railroad, which runs commuter trains (on which Meryl Streep and Robert de Niro so often met in the 1984 movie Falling in Love) from New York City up both sides of the Hudson River to Connecticut. MTA has been issuing cease-and-desist orders to the owner of StationStops a Web site and iPhone schedule app dedicated to the Metro-North trains, claiming that it owns the intellectual property rights in its scheduling data. If it were in the UK, the Guardian's Free Our Data campaign would be all over it.

In both cases - and many others - it's hard to understand the originating organisation's complaint. Metro-North is in the business of selling train tickets; the BBC is supposed to measure its success in 1) the number of people who consumer its output; 2) the educational value of its output to the license fee-paying public. Promulgating schedule data can only help Metro-North, which is not a commercial company but a public benefit corporation owned by the State of New York. It's not going to make much from selling data licenses.

The BBC's stated intention is to prevent perfect, high-definition copies of broadcast material from escaping into the hands of (evil) file-sharers. The alternative, it says, would be to amend its multiplex license to allow it to encrypt the data streams. Which, they hasten to add, would require manufacturers to amend their equipment, which they certainly would not be able to do in time for the World Cup next June. Oh, the horror!

Fair enough, the consumer revolt if people couldn't watch the World Cup in HD because their equipment didn't support the new encryption standard would indeed be quite frightening to behold. But the BBC has a third alternative: tell rights holders that the BBC is a public service broadcaster, not a policeman for hire.

Manufacturers will still have to modify equipment under the more "modest" system information compression scheme: they will have to have a license. And it seems remarkably unlikely that licenses would be granted to the developers of open source drivers or home-brew devices such as Myth TV, and of course it couldn't be implemented retroactively in equipment that's already on the market. How many televisions and other devices will it break in your home?

Up until now, in contrast to the US situation, the UK's digital switchover has been pretty gentle and painless for a lot of people. If you get cable or satellite, at some point you got a new set-top box (mine keep self-destructing anyway); if you receive all your TV and radio over the air you attached a Freeview box. But this is the broadcast flag and the content management agenda all over again.

We know why rights holders want this. But why should the BBC adopt their agenda? The BBC is the best-placed broadcasting and content provider organisation in the world to create a parallel, alternative universe to the strictly controlled one the commercial entertainment industry wants. It is the broadcaster that commissioned a computer to educate the British public. It is the broadcaster that belongs to the people. Reclaim your heritage, guys.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of the earlier columns in this series. Readers are welcome to post here follow on Twitter, or send email to netwars@skeptic.demon.co.uk.

Posted by Wendy M. Grossman at 3:50 PM | Permalink | Comments (0) | TrackBacks (0)

Well, this is a first: returning to last week's topic because events have already overtaken it.

Last week, the UK government was conducting a consultation on how to reduce illegal file-sharing by 70 percent within a year. We didn't exactly love the proposals, but we did at least respect the absence of what's known as "three strikes" - as in, your ISP gets three complaints about your file-sharing habit and kicks you offline. The government's oh-so-English euphemism for this is "technical measures". Activists opposed to "technical measures" often call them HADOPI, after the similar French law that was passed in May (and whose three strikes portions were struck down in June); HADOPI is the digital rights agency that law created.

This week, the government - or more precisely, the Department for Business, Innovation, and Skills - suddenly changed its collective mind and issued an addendum to the consultation (PDF) that - wha-hey! - brings back three strikes. Its thinking has "developed", BIS says. Is it so cynical to presume that what has "developed" in the last couple of months is pressure from rights holders? Three strikes is a policy the entertainment industry has been shopping around from country to country like an unwanted refugee. Get it passed in one place and use that country a lever to make all the others harmonize.

What the UK government has done here is entirely inappropriate. At the behest of one business sector, much of it headquartered outside Britain, it has hijacked its own consultation halfway through. It has issued its new-old proposals a few days before the last holiday weekend of the summer. The only justification it's offered: that its "new ideas" (they aren't new; they were considered and rejected earlier this year, in the Digital Britain report (PDF)) couldn't be implemented fast enough to meet its target of reducing illicit file-sharing by 70 percent by 2012 if they aren't included in this consultation. There's plenty of protest about the proposals, but even more about the government's violating its own rules for fair consultations.

Why does time matter? No one believes that the Labour government will survive the next election, due by 2010. The entertainment industries don't want to have to start the dance all over again, fine: but why should the rest of us care?

As for "three strikes" itself, let's try some equivalents.

Someone is caught speeding three times in the effort to get away from crimes they've committed, perhaps a robbery. That person gets points on their license and, if they're going fast enough, might be prohibited from driving for a length of time. That system is administered by on-the-road police but the punishment is determined by the courts. Separately, they are prosecuted for the robberies, and may serve jail time - again, with guilt and punishment determined by the courts.

Someone is caught three times using their home telephone to commit fraud. They would be prosecuted for the fraud, but they would not be banned from using the telephone. Again, the punishment would be determined by the courts after a prosecution requiring the police to produce corroborating evidence.

Someone is caught three times gaming their home electrical meter so that they are able to defraud the electrical company and get free electricity. (It's not so long since in parts of the UK you could achieve this fairly simply just by breaking into the electrical meter and stealing back the coins you fed it with. You would, of course, be caught at the next reading.) I'm not exactly sure what happens in these cases, but if Wikipedia is to be believed, when caught such a customer would be switched to a higher tariff.

It seems unlikely that any court would sentence such a fraudster to live without an electricity supply, especially if they shared their home, as most people do, with other family members. The same goes for the telephone example. And in the first case, such a person might be banned from driving - but not from riding in a car, even the getaway car, while someone else drove it, or from living in a house where a car was present.

Final analogy: millions of people smoke marijuana, which remains illegal. Marijuana has beneficial uses (relieving the nausea from chemotherapy, remediating glaucoma) as well as recreational ones. We prosecute the drug dealers, not the users.

So let's look again at these recycled-reused proposals. Kicking someone offline after three (or however many) complaints from rights holders:

1- Affects everyone in their household. Kids have to go to the library to do homework, spouses/'parents can't work at home or socialize online. An entire household is dropped down the wrong side of the Digital Divide. As government functions such as filing taxes, providing information about public services, and accepting responses to consultations all move online, this household is now also effectively disenfranchised.

2- May in fact make both the alleged infringer and their spouse unemployable.

3- Puts this profound control over people's lives, private and public, personal and financial into the hands of ISPs, rights holders, and Ofcom, with no information about how or whether the judicial process would be involved. Not that Britain's court system really has the capacity to try the 10 percent of the population that's estimated to engage in file-sharing. (Licit, illicit, who can tell?)

All of these effects are profoundly anti-democratic. Whose government is it, anyway?

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, follow on Twitter, or send email to netwars@skeptic.demon.co.uk.

Posted by Wendy M. Grossman at 2:41 PM | Permalink | Comments (0) | TrackBacks (0)

You probably aren't aware of this, but there's a consultation going on right now about what to do about illegal peer-to-peer file-sharing; send in comments by September 15. Tom Watson, the former minister for digital engagement, has made some sensible suggestions for how to respond in print and blog.

This topic has been covered pretty regularly in net.wars, but this is different and urgent: this means law.

Among the helpful background material provided with the consultation document are an impact assessment and a financial summary. The first of these explains that there were two policy options under consideration: 1) Do nothing. 2) (Preferred) legislate to reduce illegal downloading "by making it easier and cheaper for rightsholders to bring civil actions against suspected illegal file-sharers". Implementing that requires ISPs to cooperate by notifying their subscribers. There will be a code of practice (less harsh than this one, we trust) including options such as bandwidth capping and traffic shaping, which Ofcom will supervise, at least for now (there may yet be a digital rights agency).

The document is remarkably open about who it's meant to benefit - and it's not artists.

Government intervention is being proposed to address the rise in unlawful P2P file-sharing which can reduce the incentive for the creative industries to invest in the development, production and distribution of new content. Implementation of the proposed policy will allow right [sic] holders to better appropriate returns on their investment.

The included financial assessment, which in this case is the justification for the entire exercise (p 40), lays out the expected benefits: BERR expects rightsholders to pick up £1,700 million by "recovering displaced sales", at a cost to ISPs and mobile network operators of £250 to £500 million over ten years. Net benefit: £1.2 billion. Wha-hey!

My favorite justification for all this is the note that because that are an estimated 6.5 million file-sharers in the UK there are *too many* of us to take us all to court, rightsholders' preferred deterrence method up until now. Rightsholders have marketing experts working for them; shouldn't they be getting some message from these numbers?

There are some things that are legitimately classed as piracy and that definitely cost sales. Printing and selling counterfeit CDs and DVDs is one such. Another is posting unreleased material online without the artist's or rightsholder's permission; that is pre-empting their product launch, and whether you wind up having done them a favor or not, there's no question that it's simply wrong. The answer to the first of these is to shut down pirate pressing operations; the answer to the second is to get the industry to police its own personnel and raise the penalties for insider leaks. Neither can be solved by harassing file-sharers.

It's highly questionable whether file-sharing costs sales; the experience of most of us who have put our work online for free is that sales increase. However, there is no doubt in my mind that there are industries file-sharing hurts. Two good examples in film are the movie rental business and the pay TV broadcasters, especially the premium TV movie channels.

As against that, however, the consultation notes but dismisses the cost to consumers: it estimates that ISPs' costs, when passed on to consumers, will reduce the demand for broadband by 10,000 to 40,000 subscribers, representing lost revenue to ISPs of between £2 and £9 million a year (p50). The consultatation goes on to note that some consumers will cease consuming content altogether and that therefore the policy will exacerbate existing inequality since those on the lowest incomes will likely lose the most.

It is not possible to estimate such welfare loss with current data availability, but estimates for the US show that this welfare loss could be twice as large as the benefit derived from reducing the displacement effect to industry revenues.

Shouldn't this be incorporated into the financial analysis?

We must pause to admire the way the questions are phrased. Sir Bonar would be proud: ask if your proposals are implementing what you want to do in the right way. In other words, ask if three is the right number of warning letters to send infringers before taking stronger action (question 9), or whether it's a good idea to leave exactly how costs are to be shared between rightsholders and ISPs flexible rather than specifying (question 6). The question I'd ask, which has not figured in any of the consultations I've seen would be: is this the best way to help artists navigate the new business models of the digital age?

Like Watson, my answer would be no.

Worse, the figures do not take into account the cost to the public, analyzed last year in the Netherlands.

And the assumptions seem wrong. The consultation document claims that research shows that approximately 70 percent of infringers stop when they receive a warning letter, at least in the short term. But do they actually stop? Or do they move their file-sharing to different technologies? Does it just become invisible to their ISP?

So far, file-sharers have responded to threats by developing new technologies better at obfuscating users' activities. Napster...Gnutella...eDonkey...BitTorrent. Next: encrypted traffic that looks just like a VPN connection.

I remain convinced that if the industry really wants to deter file-sharing it should spend its time and effort on creating legal, reliable alternatives. Nothing less will save it. Oh, yeah, and it would be a really good idea for them to be nice to artists, too. Without artists, rightsholders are nothing.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, follow on , or send email to netwars@skeptic.demon.co.uk.

Posted by Wendy M. Grossman at 5:04 PM | Permalink | Comments (1) | TrackBacks (0)

For quite a few years now, the Canadian law professor Michael Geist has been writing a column on technology law for the Toronto Star. (Brief pause to admire the Star for running such a thing.) This week, he settled down with a simple question: where does copyright policy come from?

The story is that about a month ago the Conference Board of Canada recalled three reports on intellectual property rights after Geist accused the Board of plagiarism and also of accepting funding for the reports from various copyright lobby groups. The source of the copied passages: the International Intellectual Property Alliance. According to its own Web site, the IIPA was "formed in 1984 to represent the US copyright-based industries." It includes: the Association of American Publishers, the Business Software Alliance, the Entertainment Software Association, the Independent Film and Television Alliance, the Motion Picture Association of America, the National Music Publishers' Association, and the Recording Industry Association of America. We know *those* guys, or most of them.

This week, Geist settled down to examine the sources more closely in a lovely bit of spaghetti-detangling. Basically, just two organizations - Canada's equivalents of the MPAA and RIAA - were the source of multiple reports as well as funding for further lobbying organizations. "The net effect," Geist writes, "has been a steady stream of reports that all say basically the same thing, cite to the same sources, make the same recommendations, and often rely on each other to substantiate the manufactured consensus on copyright reform." And of course, these guys don't mean "copyright reform" the way Geist - or the Electronic Frontier Foundation or the Open Rights Group would. We say reform, we mean liberalize and open up; they say reform, they mean tighten and extend. I'd call their way "business as usual".

What's interesting, of course, is to compare Geist's handy table of who recommended what and to whom to the various proposals that are flying around the UK and Europe at the moment. To wit:

Create an IP Council. The Digital Britain report, launched ten days ago, calls this the "Digital Rights Agency", and there's even an entire separate report (PDF) outlining what it might be good for. It would include industry representatives working in collaboration with government (but would not be a government agency), and it would, among other things, educate the public. Which leads us to...

Create public education awareness programs. Of course, I predicted something like this in 1997 - for 2002.

Create an Intellectual Property Crime Task Force. While I'm not aware of speciific Briitsh proposals for this, I would note that Britain does have various law enforcement agencies already who deal with physical forms of IP counterfeiting, and the Internet Watch Foundation has throughout its history mentioned the possibility of tackling online copyright infringement.

Tougher penalties. The Digital Britain report is relatively polite on this one. It says flatly that for-profit counterfeiters will be pursued under criminal law, and calls file-sharing, flatly, "wrong", but also says that most people would prefer to remain within the law (true) and therefore it intends to encourage the development of legal downloading markets (good). However, it also proposes that ISPs should use methods such as bandwidth throttling to deter persistent file-sharers.

Implement the WIPO Internet treaties and anti-circumvention measures. Already done. Anti-circumvention was a clause in the 2001 European Union Copyright Directive and was enacted in the UK in 2003, with some exceptions for cryptographic research.

Increase funding and resources to tackle IP crime. Well. Where agencies come doubtless funding will follow.

The Digital Britain report's proposed next steps include passing legislation to enact sanctions such as bandwidth throttling. There's also a consultation on "illicit peer-to-peer filesharing" (deadline September 15); the government's proposals would require ISPs to notify alleged infringers, keep records of how often they've been notified, and allows rightsholders to use this information, anonymized, to decide when to initiate legal action. Approving the code will be Ofcom, for the time being. The consultation document helpfully reviews the state of legislative play in other countries.

It's extremely rare that we get a case where the origins of a particular set of policies can, as Geist has done here, be traced with such clarity and certainty. And it means that advocates of real copyright reform were right to distrust the claims in this area - the figures the industry claims represent losses to rightsholders from file-sharing - no matter how neutral the apparent source.

I first heard the term "policy laundering" from Privacy International's Gus Hosein; it's used to describe the way today's unwanted policies are shopped around until their sponsors can find a taker. The game works like this, as Geist shows: you publish reports until a government agency - any government agency - adopts your point of view in an apparently neutral document. Then you cite that to other governments until someone passes the laws you want. Then you promote that legislation to other countries: Be the envy of other major governments.

The Digital Britain report sells these policies as aiding the British intellectual property industry. But that's not where they came from originally. Does anyone really think the MPAA and RIAA have Britain's best interests at heart?

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and links to earlier columns in this series. Readers are welcome to post here, follow on Twitter or send email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 10:52 PM | Permalink | Comments (0) | TrackBacks (0)

I spent my formative adult years as a musician. And even so, if I were forced to choose to sacrifice one of my senses as a practical matter pick sight over hearing: as awful and isolating as it would be to be deaf it would be far, far worse to be blind.

Lack of access to information and therefore both employment and entertainment is the key reason. How can anyone participate in the "knowledge economy" if you can't read?

Years ago, when I was writing a piece about disabled access to the Net, the Royal National Institute for the Blind put me in touch with Peter Brasher, a consultant who was particularly articulate on the subject of disabled access to computing.

People tend to make the assumption - as I did - that the existence of Braille editions and talking books meant that blind and partially sighted people were catered for reasonably well. In fact, he said, only 8 percent of the blind population can read Braille; its use is generally confined to those who are blind from childhood (although see here for a counterexample). But by far and away the majority of vision loss comes later in life. It's entirely possible that the percentage of Braille readers is now considerably less; today's kids are more likely to be taught to rely on technology - text-to-speech readers, audio books, and so on. From 50 percent in the 1950s, the percentage of blind American children learning Braille has dropped to 10 percent.

There's a lot of concern about this which can be summed up by this question: if text-to-speech technology and audio books are so great, why aren't sighted kids told to use them instead of bothering to learn to read?

But the bigger issue Brasher raised was one of independence. Typically, he said, the availability of books in Braille depends on someone with an agenda, often a church. The result for an inquisitive reader is a constant sense of limits. Then computers arrived, and it became possible to read anything you wanted of your own choice. And then graphical interfaces arrived and threatened to take it all away again; I wrote here about what it's like to surf the Web using the leading text-to-speech reader, JAWS. It's deeply unpleasant, difficult, tiring, and time-consuming.

When we talk about people with limited ability to access books - blind, partially sighted; in other cases fully sighted but physically disabled - we are talking about an already deeply marginalized and underserved population. Some of the links above cite studies that show that unemployment among the Braille-reading blind population is 44 percent - and 77 percent among blind non-Braille readers. Others make the point that inability to access printed information interferes with every aspect of education and employment.

And this is the group that this week's meeting of the Standing Committee on Copyright and Related Rights at the World Intellectual Property Office has convened to consider. Should there be a blanket exception to allow the production of alternative formats of books for the visually impaired and disabled?

The proposal, introduced by Brazil, Paraguay, and Ecuador, seems simple enough, and the cause unarguable. The World Blind Union estimates that 95 percent of books never become available in alternative formats and when they do it's after some delay. As Brasher said nearly 15 years ago, such arrangements depend on the agendas ofcharitable organizations.

The culprit, as in so many net.wars, is copyright law. The WBU published arguments for copyright reform (DOC) in 2004. Amazon's Kindle is a perfect example of the problem: bowing to the demands of publishers, text-to-speech can be - and is being - turned off in the Kindle. The Kindle - any ebook reader with speech capabilities - ought to have been a huge step forward for disabled access to books.

And now, according to Twits present, at WIPO, the US, Canada, and the EU are arguing against the idea of this exemption. (They're not the only ones; elsewhere, the Authors Guild has argued that exemptions should be granted by special license and registration, something I'd certainly be unhappy about if I were blind.)

Governments, particularly democratic ones, are supposed to be about ensuring equal opportunities for all. They are supposed to be about ensuring fair play. What about the American Disabilities Act, the EU's charter of fundamental human rights, and Canada's human rights act? Can any of these countries seriously argue that the rights of publishers and copyright holders trump the needs of a seriously disadvantaged group of people that every single one of us is at risk of joining?

While it's clear that text-to-speech and audio books don't solve every problem, and while the US is correct to argue that copyright is only one of a number of problems confronting the blind, when the WBU argues that copyright poses a significant barrier to access shouldn't everyone listen? Or are publishers confused by the stereotypical image of the pirate with the patch over one eye?

If governments and rightsholders want us to listen to them about other aspects of copyright law, they need to be on the right side of this issue. Maybe they should listen to their own marketing departments about the way it looks when rich folks kick people who are already disadvantaged - and then charge for the privilege.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, follow on Twitter, or email netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 7:11 PM | Permalink | Comments (0) | TrackBacks (0)

Two people in the audience said they were actually at Woodstock.

The math: Champaign-Urbana's Virginia Theater seats 1,600 ("I saw all the Star Wars movies in this theater," said the guy behind me). Audience skews somewhat to Baby Boom and older. Mostly white. Half a million people at Woodstock. Hard to know, but the guy sitting next to me and I agreed: two *feels* right.

This week is Roger Ebert's Film Festival, a small, personal event likely to remain so because of its location: his Illinois home town. A nice, Midwestern town, chiefly known for the university whence came Mosaic. People outside the US may not know Ebert's work as well as those inside it: a Pulitzer Prize-winning print critic, he and fellow Chicago newspaper critic Gene Siskel invented TV movie criticism. The festival is a personal love letter to movie fans, to his home town, and to the movies he picks because he feels they deserve to be more widely known and/or appreciated.

This is what it's like: the second day the parents of one of the featured directors casually pull me to lunch in the student union cafeteria. "I used to sit at this table when I was a student here," said the wife. She pointed across the cafeteria. "Roger Ebert used to sit at that table over there." Her husband pointed in a third direction and added, "And that table over there is where we met."

People come because they love movies - and also love seeing them in a fine theater with perfect sound and projection filled with the ultimate in appreciative audiences. Watching Woodstock last night, people so much forgot that they weren't at a live concert that they applauded each act in turn. And when Country Joe yelled, "What does it spell?" they yelled back "FUCK" at increasingly high volume. (I will remind you that this is America's heartland; these are supposed to be the people whose sensibilities are too delicate for Janet Jackson's nipple. Hah.)

The next morning, at a panel about the tribulations of movie distribution in these troubled times, I found I was back at work. Woodstock Michael Wadleigh - who's heavy into saving the planet now - told a quaint story about the film's release. His contract gave him final cut. Warner Brothers saw his finished length - four hours - and was ready to ignore it and cut it down to one hour 50 minutes. Received wisdom: successful movies aren't longer than that. Received wisdom: rock and roll documentaries are not successful movies anyway. Received wisdom: we have more lawyers than you. Nyaaah. Come and sue us. This attitude toward artists seems familiar, somehow.

So Wadleigh and his producers stole back his film, just like in S.O.B.. The producer then called the studios and convinced them that Wadleigh was deranged enough to actually set fire to himself and all the footage if the studio didn't release the film exactly as he'd cut it. Studio relents (that probably wouldn't happen now either). Film is released at nearly four hours. Still the biggest-grossing documentary in history. Now remastered, cleaned up, sound digitized, etc. for a new DVD. That was, like flower power, then..

Cut to Nina Paley, sitting a few directors down the panel from Wadleigh. Paley, like most of the others here - Guy Madden (My Winnipeg), Karen Gehres (Begging Naked), Carl Deal and Tia Lessin (Trouble the Water) - can't find distribution. Unlike Lessin, who reacted with some umbrage to the notion of giving stuff away, Paley decided that rather than sign away effectively all rights to her movie for five or ten years she turned it over to her audience to distribute for her. Yes, she put all the movie's files on the Internet for free under a share-alike Creative Commons license. Go ye and download. I'll wait.

And what happened? People downloaded! People shared! People started inviting her to speak! People started demanding to buy DVDs. She started making money.

Wait. What?

Boggle, MPAA, boggle.

That doesn't mean to say that movie distribution isn't in trouble: it is. Wadleigh and the Warner Brothers publicity person, Ronnee Sass, next to him, may have a mutual admiration society, but even films that have won top prizes at Cannes and Sundance are having trouble getting seen. Art theaters are shutting down and the small distributors that service them are going out of business.

"Why?" I was asked over lunch. A dozen reasons. People have more entertainment options. Corporate-owned studios would rather gamble on blockbusters. Theaters got unpleasant - carved-up, badly angled, out-of-focus screening rooms with sticky floors and too-loud, distorted sound. To people who were watching movies on small TV screena with commercial disruptions, home theaters look like an improvement - you can talk to your friends, eat what you want, pick your own movies, and pause whenever you like. More, in fact, like reading a novel or listening to music than going to a movie in the old sense, when you didn't - couldn't - yawn halfway through the magic and say, "I'll finish it tomorrow.".

What people have forgotten is the way a theater filled with audience response changes the experience. Would Woodstock have been the same if everyone had stayed home and watched it on TV?

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to follow on Twitter, post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 3:36 PM | Permalink | Comments (0) | TrackBacks (0)

So the Pirate Bay Four have been found guilty, sentenced to a year in jail, and ordered to pay 30 million kronor (lotta money) in damages to Big Media (hella big). How to make martyrs, guys.

Except: from the entertainment industry's point of view the best thing to come out of the trial shouldn't be either the verdict or the damages. It should be the news of the site's profitability and ownership, exposed to the non-Swedish-speaking world by Andrew Brown, first in a blog posting and then in Guardian article. Both sets of revelations came from the native Swedish newspapers which, of course, few outside Sweden can actually read.

Shouldn't the thought of possibly further enriching the heir to a fortune who is a supporter of extreme right-wing groups give Pirate Bay users pause? You'd think the entertainment industry would take advantage of this to play, as Sir Humphrey Appleby is advised in "Man Overboard", the man instead of the ball.

In The Register, Andrew Orlowski has speculated that the English-language media have failed to pick up on Brown's revelations because...I don't know, everyone is too pro-"freetard" or something. It's more likely that, lacking familiarity with the language, culture, and politics of Sweden, they aren't comfortable reporting them.

As much as The Pirate Bay is a useful site if you're looking for stuff to download for free, the site can't really make the same arguments many others can: that they don't really know what they're hosting (YouTube, torrent search sites). The site is much too neatly organized and catalogued. Not that it's clear the site's owners have any interest in making such an argument: they've been arrogantly defiant with respect to the trial and earlier threats. It's one thing to sit down and argue principles and try to change laws you disagree with; it's another to openly jeer at the law, effectively behaving like a cartoon character dancing on the edge of a cliff yelling, "Come get me!"

I've argued all along that there ought to be a distinction between personal, non-profit copying and commercial copying. The Pirate Bay falls in the middle. The site's users certainly are engaging in non-profit, personal copying. And the site isn't dealing in commercial copying in the sense that I meant originally, in that it's not selling copies (which would be an absolutely clear diversion of the market from legitimate sources). But if you believe the Swedish press it is making real money from advertising. Unless it opens its books for inspection by the public, we have no way of telling how much of that is actually profit, how much goes to pay the site's no doubt substantial server and bandwidth costs, and how much, if any, is used to support Piratbyrån, the political party aiming to change copyright law in Sweden.

It ought to be clear by now - though apparently it's not - to entertainment companies that attacking file-sharing sites isn't getting them anywhere. Yes, they can point to having closed down a number of sites, but that's like boasting that you've cut 1,000 heads off the Lernaean Hydra. What a boast like really says is how much bigger the monster is now than when you started: you still can't say you killed it, or even that you've scared it a little bit. Year on year, remorselessly, no matter how many people they've threatened or sites they've prosecuted, file-sharing has grown both in usage and in breadth. Plus, the publicity that attends every case is serving excellently to spread the word to people who might otherwise have never heard of file-sharing. Wired News reports that since the case started The Pirate Bay's user base has grown to 22 million and the site is profiting from its new anonymization VPN service.

In terms of breadth, there are still plenty of gaps in what you can find online, but over the years those have continued to narrow as niche interest groups start up their own sites to share old, obscure, and commercially unavailable material. What porn fanciers can do, tennis nuts can do better.

More to the point, entertainment industry attacks on file-sharing are doing for file-sharing sites what Prohibition did for the Mafia: turning them into sympathetic heroes who are just nobly trying to help their fellow citizens. The Pirate Bay may not look like a speakeasy, but what else is it, really?

The problem for the entertainment industry is that decades of television and radio broadcasts have trained users that viewing and listening without payment at the point of consumption is a normal state of affairs. In that sense, downloading torrents is far more like the way television and radio have presented themselves than paid downloads or buying CDs and DVDs. Ironically, US commercial television is now so heavily ad-laden that watching it now makes the trade-off of providing content in return for viewers' attention to advertising much more explicit - and viewers don't like it one bit.

In the end, The Pirate Bay guys may sound like posturing jerks, but they're right: they may go to jail but file-sharing will live on even if they turn out to be wrong about The Pirate Bay's own invulnerability. The entertainment industry might just as well adopt the slogan, "We won't stop until everyone's a pirate."

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 1:55 PM | Permalink | Comments (0) | TrackBacks (0)

Somewhere around 2002, it occurred to me that the copyright wars we're seeing over digitised intellectual property - music, movies, books, photographs - might, in the not-unimaginable future be repeated, this time with physical goods. Even if you don't believe that molecular manufacturing will ever happen, 3D printing and rapid prototyping machines offer the possibility of being able to make a large number of identical copies of physical goods that until now were difficult to replicate without investing in and opening a large manufacturing facility.

Lots of people see this as a good thing. Although: Chris Phoenix, co-founder of the Center for Responsible Nanotechnology, likes to ask, "Will we be retired or unemployed?"

In any case, I spent some years writing a book proposal that never went anywhere, and then let the idea hang around uselessly, like a human in a world where robots have all the jobs.

Last week, at the University of Edinburgh's conference on governance of new technologies (which I am very unhappy to have missed), RAF engineer turned law student Simon Bradshaw presented a paper on the intellectual property consequences of "low-cost rapid prototyping". If only I'd been a legal scholar...

It turns out that as a legal question rapid prototyping has barely been examined. Bradshaw found nary a reference in a literature search. Probably most lawyers think this stuff is all still just science fiction. But, as Bradshaw does, make some modest assumptions, and you find that perhaps three to five years from now we could well be having discussions about whether Obama was within the intellectual property laws to give the Queen a printed-out, personalized iPod case designed to look like Elvis, whose likeness and name are trademarked in the US. Today's copyright wars are going to seem so *simple*.

Bradshaw makes some fairly reasonable assumptions about this timeframe. Until recently, you could pay anywhere from $20,000 to $1.5 million for a fabricator/3D printer/rapid prototyping machine. But prices and sizes are dropping and functionality is going up. Bradshaw puts today's situation on a par with the state of personal computers in the late 1970s, the days of the Commodore PET and the Apple II and home kids like the Sinclair MK14. Let's imagine, he says, the world of the second generation fabricator: the size of a color laser printer, cost $1,000 or less, fed with readily available plastic, better than 0.1mm resolution (and in color), 20cm cube maximum size, and programmable by enthusiasts.

As the UK Intellectual Property Office will gladly tell you, there are four kinds of IP law: copyright, patent, trademark, and design. Of these, design is by far the least known; it's used to protect what the US likes to call "trade dress", that is, the physical look and feel of a particular item. Apple, for example, which rarely misses a trick when it comes to design, applied for a trademark on the iPhone's design in the US, and most likely registered it under the UK's design right as well. Why not? Registration is cheap (around £200), and the iPhone design was genuinely innovative.

As Bradshaw analyzes it, all four of these types of IP law could apply to objects created using 3D printing, rapid prototyping, fabricating...whatever you want to call it. And those types of law will interact in bizarre and unexpected ways - and, of course, differently in different countries.

For example: in the UK, a registered design can be copied if it's done privately and for non-commercial use. So you could, in the privacy of your home, print out copies of a test-tube stand (in Bradshaw's example) whose design is registered. You could not do it in a school to avoid purchasing them.

Parts of the design right are drafted so as to prevent manufacturers from using the right to block third-parties from making spare parts. So using your RepRap to make a case for your iPod is legal as long as you don't copy any copyrighted material that might be floating around on the surface of the original. Make the case without Elvis.

But when is an object just an object and when is it a "work of artistic merit"? Because if what you just copied is a sculpture, you're in violation of copyright law. And here, Bradshaw says, copyright law is unhelpfully unclear. Some help has come from the recent ruling in Lucasfilm v Ainsworth, the case about the stormtrooper helmets copied from the first Star Wars movie. Is a 3D replica of a 2D image a derivative work?

Unsurprisingly, it looks like US law is less forgiving. In the helmet case, US courts ruled in favor of Lucasfilm; UK courts drew a distinction between objects that had been created for artistic purposes in their own right and those that hadn't.

And that's all without even getting into the thing that if everyone has a fabricator there are whole classes of items that might no longer be worth selling. In that world, what's going to be worth paying for is the designs that drive the fabricators. Think knitted Dr Who puppets, only in 3D.

It's all going to be so much fun, dontcha think?

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 7:02 PM | Permalink | Comments (0) | TrackBacks (0)

So yesterday on BBC Radio Scotland's The Movie Café, Eddie Leverton, on behalf of the Federation Against Copyright Theft, directed what I thought was going to be a general discussion of file-sharing and the role of ISPs into the specific case of movies being uploaded within weeks, perhaps hours, of their first release.

This is a different problem than the one we usually talk about. While it's legitimate to argue that people who sample music and TV shows online may become paying customers, it's harder to argue the same about movies, still less about movies in first-run, when they pick up most of their ticket sales. A Dutch study of file-sharing, published on February 18 (there's an English version here (PDF)), makes precisely this point: that file-sharing does not have the same impact on music, TV shows, and films.

Music, the authors argue, is the most likely to be replayed frequently. TV shows, less so, but still: you replay early episodes when later ones cast a new light on them, or (with shows like The Sopranos or Damages you rewatch the last season to gear up for the new one). Movies, however... There are of course some movies - the Marx Brothers in A Night at the Opera, François Truffaut's Day for Night - that you revisit periodically throughout your lifetime. But let's face it, there a lot of movies that you're only going to see once, and that only to stay in touch with popular culture. One must therefore calculate the ratio of files shared to sales lost differently in each of these cases. It is reasonable to suppose that file-sharing has a bigger impact on the film industry.

Nonetheless, the Dutch report calculates that overall file-sharing is a benefit to society at large. Certainly, a lot of Dutch people are doing it: 4.7 million Dutch Internet users (out of a total population of 16.6 million as of last July) aged 15 or older have downloaded files without paying on one or more occasions in the last year. As of now, the film industry's revenues are still growing in the Netherlands in terms of cinema visits and DVD sales.

But DVD rentals are slumping - and that, in my own experience, is exactly where you'd expect file-sharing to have its first effect. For me, DVD rental replaced premium TV channels: for the same money, I could see at least as many new movies in a month, and they'd be more interesting. Since most movie DVDs get ripped and uploaded with celerity, if you're willing to forego some quality in favor of convenience, file-sharing is an easy replacement for DVD rentals. "File-sharing and buying go hand in hand," says the Dutch report; the same need not apply to rentals.

But Leverton was talking about movies recorded in the cinema on a camcorder and then uploaded. Industry paranoia about this has reached a high level. Also on the show was a film critic enraged at having his mobile phone uplifted during critics' previews. Impounding critics' mobile phones makes sense, I suppose, if you think alienating the critics before the movie even starts is a good idea. Making them line up at the end to get their phones back is a really excellent way of putting them in a foul mood to write their reviews, too.

The film critic and I pointed out that a lot of early torrents come from screeners and other insider leaks. Leverton denied this, saying screeners haven't been an issue for three years. I have news for him: a quick search finds (unchecked for validity) torrents of screeners of films opening in the US this week and even a few that haven't opened yet. Surely these pose a bigger threat than camcorders: there must be some limit to how much quality people are willing to give up just to get something for free. The camcorder rips I've seen are ghastly; you'd have to be either desperate to see that particular film or the kind of person who'll watch anything as long as it's free. The former probably have no other choice; the latter are interested in free stuff, not movies. Neither category is likely to represent lost sales.

More generally, if people are watching downloaded copies of movies rather than go to a theater, then there's something wrong with the theater experience. And there is: it's expensive, it's technically inferior, the sound is usually too loud, and the traveling takes time, which is in increasingly short supply. Cinema showings now have to compete with home theater, especially as many DVDs now cost less to buy than a single ticket. They also have to compete with other entertainments: when the cost of movies in London's West End reached the price of a ticket for live theater, suddenly live theater seemed like the far better deal.

So is file-sharing really the film industry's biggest problem? The Dutch report recommends redefining its business models. Creating legitimate download services is a start. But do stop blaming ISPs: licit downloads cost them just as much in bandwidth as illicit ones.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 3:23 PM | Permalink | Comments (0) | TrackBacks (0)

It seems like every year or two some currently populat company revises its Terms of Service in some stupid way that gets all its users mad and then either 1) backs down or 2) watches a stampede for the exits. This year it's Facebook.

In announcing the reversal, founder Mark Zuckerberg writes that given its 175 million users, if Facebook were a country it would be the sixth most populous country in the world, and called the TOS a "governing document". While those numbers must sound nice on the business plan - wow! Facebook has more people than Pakistan! - in reality Facebook doesn't have 175 million users in the sense that Pakistan has 172 million inhabitants. I'm sure that Facebook, like every other Internet site or service, has a large percentage of accounts that are opened, used once or twice, and left for dead. Countries must plan governance and health care for all their residents; no one's a lapsed user of the country they live in.

Actually, the really interesting thing about 175 million people: that's how many live outside the countries they were born in. Facebook more closely matches the 3 percent of the world's population who are migrants.

It is nice that Zuckerberg is now trying to think of the TOS as collaborative, but the other significant difference is of course that Facebook is owned by a private company that is straining to find a business model before it stops being flavor of the month. (Which, given Twitter's explosive growth, could be any time now.) The Bill of Rights in progress has some good points (that sound very like the WELL's "You own your own words", written back in the 1980s. The WELL has stuck to its guns for 25 years, and any user can delete ("scribble") any posting at any time, but the WELL has something Facebook doesn't: subscription income. Until we know what Facebook's business model is - until *Facebook* knows what Facebook's business model is - it's impossible to put much faith in the durability of any TOS the company creates.

At the Guardian, Charles Arthur argues that Facebook should just offer a loyalty card because no one reads the fine print on those. That's social media for you: grocery shopping isn't designed for sharing information. Facebook and other Net companies get in this kind of trouble is because they *are* social media, and it only takes a few obsessives to spread the word. If you do read the fine print of TOSs on other sites, you'll be even more suspicious.

But it isn't safe to assume - as many people seem to have - that Facebook is just making a land grab. Its missing-or-unknown business model is what makes us so suspicious. But the problem he's grappling with is a real one: when someone wants to delete their account and leave a social network, where is the boundary of their online self?

The WELL's history, however, does suggest that the issues Zuckerberg raises are real. The WELL's interface always allowed hosts and users to scribble postings; the function, according to Howard Rheingold in The Virtual Community and in my own experience was and is very rarely used. But scribble only deletes one posting at a time. In 1990, a departing staffer wrote and deployed a mass scribble tool to seek out and destroy every posting he had ever made. Some weeks later, more famously, a long-time, prolific WELL user named Blair Newman, turned it loose on his own work and then, shortly afterwards, committed suicide.

Any suicide leaves a hole in the lives of the people he knows, but on the WELL the holes are literal. A scribbled posting doesn't just disappear. Instead, the shell of the posting remains, with the message "" in place of the former content. Also, after a message is scribbled even long-dead topics pop up when you read a conference, so a mass scribble hits you in the face repeatedly. It doesn't happen often; the last I remember was about 10 years ago, when a newly appointed CEO of a public company decided to ensure that no trace remained of anything inappropriate he might ever have posted.

Of course, scribbling your own message doesn't edit other people's. While direct quoting is not common on the WELL - after all, the original posting is (usually) still right there, unlike email or Usenet - people refer to and comment on each other's postings all the time. So what's left is a weird echo, as if all copies of the Bible suddenly winked out of existence leaving only the concordances behind.

It is this problem that Zuckerberg is finding difficult. The broad outline so far posted seems right: you can delete the material you've posted, but messages you've sent to others remain in their inboxes. There are still details: what about comments you post to others' status updates or on their Walls? What about tags identifying you that other people have put in their photographs?

Of course, Zuckerberg's real problem is getting people to want to stay. Companies like to achieve this by locking them in, but ironically, just like in real life, reassuring people that they can leave is the better way.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 2:58 PM | Permalink | Comments (0) | TrackBacks (0)

This week the EU's legal affairs committee, JURI, may vote - again - on term extension in sound recordings. As of today, copyright is still listed on the agenda.

Opposing term extension was a lot simpler at the national level in the UK; the path from proposal to legislation is well-known, well trodden, and well-watched by the national media. At the EU level, JURI is only one of four committees involved in proposing and amending term extension on behalf of the European Parliament - and then even after the Parliament votes it's the Commission who makes the final decision. The whole thing drags on for something close to forever, which pretty much guarantees that only the most obsessed stay in touch through the whole process. If you had designed a system to ensure apathy except among lobbyists who like good food, you'd have done exactly this.

There are many reasons to oppose term extension, most of which we've covered before. Unfortunately, these seem invisible to some politicians. As William Patry blogs, the harm done by term extension is diffuse and hard to quantify while easily calculable benefits accrue to a small but wealthy and vocal set of players.

What's noticeable is how many independent economic reviews agree with what NGOs like the Electronic Frontier Foundation and the Open Rights Group have said all along.

According to a joint report from several European intellectual property law centers (PDF), the Commission itself estimates that 45 extra years of copyright protection will hand the European music industry between €44 million and €843 million - uncertain by a factor of 20! The same report also notes that term extension will not net performers additional broadcast revenue; rather, the same pot will be spread among a larger pool of musicians, benefiting older musicians at the expense of young incomers. The report also notes that performers don't lose control over their music when the term of copyright ends; they lose it when they sign recording contracts (so true).

Other reports are even less favorable. In 2005, for example, the Dutch Institute for Information Law concluded that copyright in sound recordings has more in common with design rights and patents than with other areas of copyright, and it would be more consistent to reduce the term rather than extend it. More recently, an open letter from Bournemouth University's Centre for Intellectual Property Policy Management questioned exactly where those estimated revenues were going to come from, and pointed out the absurdity of the claim that extension would help performers.

And therein is the nub. Estimates are that the average session musician will benefit from term extension in the amount of €4 to €58 (there's that guess-the-number-within-a-factor-of-20 trick again). JURI's draft opinion puts the number of affected musicians at 7,000 per large EU member state, less in the rest. Call it 7,000 in all 27 and give each musician €20; that's €3.78 million, hardly enough for a banker's bonus. We could easily hand that out in cash, if handouts to aging performers are the purpose of the exercise.

Benefiting performers is a lobbyists' red herring that cynically plays on our affection for our favorite music and musicians; what term extension will do, as the Bournemouth letter points out, is benefit recording companies. Of that wackily wide range of estimated revenues in the last paragraph, 90 percent, or between €39 million and €758 million will go to record producers, even according to the EU's own impact assessment (PDF), based on a study carried out by PriceWaterhouseCooper.

If you want to help musicians, the first and most important thing you should do is improve the industry's standard contracts and employment practices. We protect workers in other industries from exploitation; why should we make an exception for musicians? No one is saying - not even Courtney Love - that musicians deserve charity. But we could reform UK bankruptcy law so that companies acquiring defunct labels are required to shoulder ongoing royalty payment obligations as well as the exploitable assets of the back catalogue. We could put limits on what kind of clauses a recording company is allowed to impose on first-time recording artists. We could set minimums for what is owed to session musicians. And we could require the return of rights to the performers in the event of a recording's going out of print. Any or all of those things would make far more difference to the average musician's lifetime income than an extra 45 years of copyright.

Current proposals seem to focus on this last idea as a "use it or lose it" clause that somehow makes the rest of term extension all right. Don Foster, the conservative MP who is shadow minister for the Department of Culture, Media, and Sport, for example, has argued for it repeatedly. But by itself it's not enough of a concession to balance the effect of term extension and the freezing of the public domain.

If you want to try to stop term extension, this is a key moment. Lobby your MEP and the members of the relevant committees. Remind them of the evidence. And remind them that it's not just the record companies and the world's musicians who have an interest in copyright; it's the rest of us, too.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 5:46 PM | Permalink | Comments (0) | TrackBacks (0)

Governments move slowly; technology moves fast. That's not a universal truth - witness Obama's first whirlwind week in office - but in the early days of the Net it was the kind of thing people said smugly when they wanted to claim that cyberspace was impervious to regulation. It worked well enough for, say, setting free strong cryptography over the objections of the State Department and ITAR.

This week had two perfect examples. First: Microsoft noted in its 10-Q that the EU may force it to do something about tying Internet Explorer to Windows - remove it, make it one of only several browsers consumers can choose from at setup, or randomly provide different browsers. Still fighting the browser wars? How 1995.

Second: the release of the interim Digital Britain report by the Department for Culture, Media, and Sport. Still proposing Digital Rights Management as a way of protecting rightsholders' interest in content? How 2005.

It probably says something about technology cycles that the DRM of 2005 is currently more quaint and dated than the browser wars of 1995-1998. The advent of cloud computing and Google's release of Chrome last year have reinvigorated the browser "market". After years of apparent stagnation it suddenly matters again that we should have choices and standards to keep the Internet from turning into a series of walled gardens (instead of a series of tubes).

DRM, of course, turns content into a series of walled gardens and causes a load of other problems we've all written about extensively. But the most alarming problem about its inclusion in the government's list of action items is that even the music industry that most wanted it is abandoning it. What year was this written in? Why is a report that isn't even finished proposing to adopt a technological approach that's already a market failure? What's next, a set of taxation rules designed for CompuServe?

The one bit of good, forwarding-thinking news - which came as a separate announcement from Intellectual Property Minister David Lammy, is that apparently the UK government is ready to abandon the "three strikes" idea for punishing file-sharers - it's too complicated (Yes, Minister rules!) to legislate. And sort of icky arresting teenagers in their bedrooms, even if the EU doesn't see anything wrong with that and the Irish have decided to go ahead with it.

The interim report bundles together issues concerning digital networks (broadband, wireless, infrastructure), digital television and radio, and digital content. It's the latter that's most contentious: the report proposes creating a Rights Agency intended to encourage good use (buying content) and discourage bad use (whatever infringes copyright law). The report seems to turn a blind eye to the many discussions of how copyright law should change. And then there's a bunch of stuff about whether Britain should have a second public service broadcaster to compete "for quality" with the BBC. How all these things cohere is muddy.

For a really scathing review of the interim report, see The Guardian , where Charles Arthur attacks not only the report's inclusion of DRM and a "rights agency" to collaborate on developing it, but its dirt path approach to broadband speed and its proposed approach to network neutrality (which it calls "net neutrality", should you want to search the report to find out what it says).

The interim report favors allowing the kind of thing Virgin has talked about: making deals with content providers in which they're paid for guaranteed service levels. That turns the problem of who will pay for high-speed fiber into a game of pass-the-parcel. Most likely, consumers will end up paying, whether that money goes to content providers or ISPs. If the BBC pays for the iPlayer, so do we, through the TV license. If ISPs pay, we pay in higher bandwidth charges. If we're going to pay for it anyway, why shouldn't we have the freedom of the Internet in return?

This is especially true because we do not know what's going to come next or how people will use it. When YouTube became the Next Big Thing, oh, say, three or four years ago, it was logical to assume that all subsequent Next Big Things were going to be bandwidth hogs. The next NBT turned out to be Twitter, which is pretty much your diametrical opposite. Now, everything is social media - but if there's one thing we know about the party on the Internet it's that it keeps on moving on.

There's plenty that's left out of this interim report. There's a discussion of spectrum licensing that doesn't encompass newer ideas about spectrum allocation. It talks about finding new business models for rightsholders without supporting obsolete ones and the "sea of unlawful activity in which they have to swim" and mentions ISPs - but leaves out consumers except as "customers" or illegal copiers. It nods at the notion that almost anyone can be a creator and find distribution, but still persists in talking of customers and rightsholders as if they were never the same people.

No one ever said predicting the future was easy, least of all Niels Bohr, but it does help if you start by noticing the present.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 10:56 PM | Permalink | Comments (0) | TrackBacks (0)

How can we compete with free?

This is the question the entertainment industry has been asking ever since the first MP3 was uploaded. We are supposed to feel sorry for them, pass laws to protect their business model, and arrest the wicked "pirates" who "steal" their work and...well, I suppose "fence" would be the right word for getting it out to others.

Many of us have argued many times that the numbers rightsholders - the software industry, the entertainment industry - comes up with to estimate the direct cost of piracy to their bottom lines are questionable, if not greatly exaggerated. Not all free downloads would have been sales; some customers would not have paid for the work if they couldn't first sample it for free. Agonizingly slowly, the entertainment industry is beginning to behave in the ways we've argued for all along. Digital rights management is vanishing from downloaded music; MGM is putting its movies on YouTube; and TV networks are posting their shows online. Legal streaming and downloading is coming along, and while the torrenting population keeps growing, the legal population will grow faster and eventually outstrip it.

But all these pieces of the acrimonious copyright wars, are merely about distribution. The more profound copyright wars are just starting; and these are between free content and paid content.

In the free content category: Blogs. Advertorial, including infomercials. Services - Web, print, or otherwise - that are automatically generated from existing content such as news wires and other sites. User-generated sites like Flickr and YouTube.

In the paid content category: all the traditional media.

Clearly some people do manage to compete with free: bottled water, Windows, and iTunes all are successful despite the existence of tap water, Linux, and BitTorrent. Others are struggling: Craigslist is killing the classified advertising in many US newspapers, including the New York Times and its subsidiary, the Boston Globe; Flickr is making life hard for photographers; copy-and-paste blogs are hammering newspapers (again).

Free by itself isn't exactly the problem. Take, for example, Flickr and photographers. No matter how good their best photos are, few Flickr posters have what professionals have: the ability to produce, to order, without fail exactly the photographs required by the client. For a live event where time and reliability of the essence, you need a professional.

But the rest of the time... Flickr would be no threat if it hosted only a few hundred images. What's killing photographers is the law of truly large numbers: given hundreds of millions of images the chances that someone will be able to find a free one that is good enough go up. Volume is the killer.

Similarly, the problem for newspapers isn't that any of the millions of blogs out there can do what they do. It's the aggregate impact of all those expert blogs on single topics, coupled with the loss of advertising revenues from copy-and-pasters mashed up with the quaintly long lead times necessary for print.

Still, there were hints at last week's American Film Institute Digifest that music and film companies might be beginning to find an answer. If the first day was all about cross-media promotion, the second was all about using multiple media to make movies and music into the kernel of a broader experience - the kind you can't copy by downloading for free.

Christopher Sandberg, for example, talked about the "participation drama" The Company P built around The Truth About Marika, the story of a young woman searching for a missing friend. Based on a true story, the TV drama formed merely the center of a five-week reality role-playing game that included conspiracy Web sites, staged TV "debates", real-world and in-game clues.

"It's not about new media. It's the level of engagement," he said. "The audience can get as close as they want to the core story."

In a second example, the band Nine Inch Nails' Trent Reznor kicked off the launch of his Year Zero CD by planting a USB stick bearing the first release of one of the CD's tracks on top of a urinal in a men's room at one of their concerts. A complex alternative reality game later, the most active fans in the community were taken on a bus to a secret show. Three million fans played the game. Plus, the CD itself was cool: heated up, the top changed color and displayed a secret message.

The key question, asked by someone in the audience: did the effort mean the band sold more CDs?

"All projects have specific goals and objectives," said Susan Bonds, head of 42 Entertainment, which ran the project, "and sometimes they're tied to sales." In this case, because the music industry's album sales are dropping and Nine Inch Nails has a particularly technology-savvy fan base, the goal was more "building the people who will show up at your shows and consume your albums and be your audience on the Web and figuring out how to connect to them."

The tiny folk scene has long known that audiences like the perceived added value of buying CDs direct from the musicians. That that doesn't scale to millions - because there's only so much artist to go around. But the arts have always been about selling special experiences first and foremost. Participatory media will reach their own scaling problems - how many alternative reality games does anyone have time for? - but at last they've made a start on finding a positive response to the ease with which digital media can be copied.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her Posted by Wendy M. Grossman at 3:33 PM | Permalink | Comments (0) | TrackBacks (0)