net.wars

One of the things about living in a foreign country is this: every so often the actual England I live in collides unexpectedly with the fictional England I grew up with. Fictional England had small, friendly villages with murders in them. It had lowering, thick fogs and grim, fantastical crimes solvable by observation and thought. It had mathematical puzzles before breakfast in a chess game. The England I live in has Sir Arthur Conan Doyle's vehement support for spiritualism, traffic jams, overcrowding, and four million people who read The Sun.

This week, at the GikIII Workshop, in a break between Internet futures, I wandered out onto a quadrangle of grass so brilliantly and perfectly green that it could have been an animated background in a virtual world. Overlooking it were beautiful, stolid, very old buildings. It had a sign: Balliol College. I was standing on the quad where, "One never failed to find Wimsey of Balliol planted in the center of the quad and laying down the law with exquisite insolence to somebody." I know now that many real people came out of Balliol (three kings, three British prime ministers, Aldous Huxley, Robertson Davies, Richard Dawkins, and Graham Greene) and that those old buildings date to 1263. Impressive. But much more startling to be standing in a place I first read about at 12 in a Dorothy Sayers novel. It's as if I spent my teenaged years fighting alongside Angel avatars and then met David Boreanaz.

Organised jointly by Ian Brown at the Oxford Internet Institute and the University of Edinburgh's Script-ed folks, GikIII (prounounced "geeky") is a small, quirky gathering that studies serious issues by approaching them with a screw loose. For example: could we control intelligent agents with the legal structure the Ancient Romans used for slaves (Andrew Katz)? How sentient is a robot sex toy? Should it be legal to marry one? And if my sexbot rapes someone, are we talking lawsuit, deactivation, or prison sentence (Fernando Barrio)? Are RoadRunner cartoons all patent applications for devices thought up by Wile E. Coyote (Caroline Wilson)? Why is The Hound of the Baskervilles a metaphor for cloud computing (Miranda Mowbray)?

It's one of the characteristics of modern life that although questions like these sound as practically irrelevant as "how many angels, infinitely large, can fit on the head of a pin, infinitely small?", which may (or may not) have been debated here seven and a half centuries ago, they matter. Understanding the issues they raise matters in trying to prepare for the net.wars of the future.

In fact, Sherlock Holmes's pursuit of the beast is metaphorical; Mowbray was pointing out the miasma of legal issues for cloud computing. So far, two very different legal directions seem likely as models: the increasingly restrictive EULAs common to the software industry, and the service-level agreements common to network outsourcing. What happens if the cloud computing company you buy from doesn't pay its subcontractors and your data gets locked up in a legal battle between them? The terms and conditions in effect for Salesforce.com warn that the service has 30 days to hand back your data if you terminate, a long time in business. Mowbray suggests that the most likely outcome is EULAs for the masses and SLAs at greater expense for those willing to pay for them.

On social networks, of course, there are only EULAs, and the question is whether interoperability is a good thing or not. If the data people put on social networks ("shouldn't there be a separate disability category for stupid people?" someone asked) can be easily transferred from service to service, won't that make malicious gossip even more global and permanent? A lot of the issues Judith Rauhofer raised in discussing the impact of global gossip are not new to Facebook: we have a generation of 35-year-olds coping with the globally searchable history of their youthful indiscretions on Usenet. (And WELL users saw the newly appointed CEO of a large tech company delete every posting he made in his younger, more drug-addled 1980s.) The most likely solution to that particular problem is time. People arrested as protesters and marijuana smokers in the 1960s can be bank presidents now; in a few years the work force will be full of people with Facebook/MySpace/Bebo misdeeds and no one will care except as something laugh at drunkenly late out in the pub.

But what Lilian Edwards wants to know is this: if we have or can gradually create the technology to make "every ad a wanted ad" - well, why not? Should we stop it? Online marketing is at £2.5 billion a year according to Ofcom, and a quarter of the UK's children spend 22 hours a week playing computer games, where there is no regulation of industry ads and where Web 2.0 is funded entirely by advertising. When TV and the Internet roll together, when in-game is in-TV and your social network merges with megamedia, and MTV is fully immersive, every detail can be personalized product placement. If I grew up five years from now, my fictional Balliol might feature Angel driving across the quad in a Nissan Prairie past a billboard advertising airline tickets.

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 at 3:22 PM | Permalink | Comments (0) | TrackBacks (0)

It was quiet, too quiet. For so long it's just been Firefox/Mozilla/Netscape, Internet Explorer, and sometimes Opera that it seemed like that was how it was always going to be. In fact, things were so quiet that it seemed vaguely surprising that Firefox had released a major update and even long-stagnant Internet Explorer has version 8 out in beta. So along comes Chrome to shake things up.

The last time there were as many as four browsers to choose among, road-testing a Web browser didn't require much technical knowledge. You loaded the thing up, pointed it at some pages, and if you liked the interface and nothing seemed hideously broken, that was it.

This time round, things are rather different. To really review Chrome you need to know your AJAX from your JavaScript. You need to be able to test for security holes, and then discover more security vulnerabilities. And the consequences when these things are wrong are so much greater now.

For various reasons, Chrome probably isn't for me, quite aside from its copy-and-paste EULA oops. Yes, it's blazingly fast and I appreciate that because it separates each tab or window into its own process it crashes more gracefully than its competitors. But the switching cost lies less in those characteristics than in the amount of mental retraining it takes to adapt your way of working to new quirks. And, admittedly based on very short acquaintance, Chrome isn't worth it now that I've reformatted Firefox 3's address bar into a semblance of the one in Firefox 2. Perhaps when Chrome is a little older and has replaced a few more of Firefox's most useful add-ons (or when I eventually discover that Chrome's design means it doesn't need them).

Chrome does not do for browsers what Google did for search engines. In 1998, Google's ultra-clean, quick-loading front page and search results quickly saw off competing, ultra-cluttered, wait-for-it portals like Altavista because it was such a vast improvement. (Ironically, Google now has all those features and more, but it's smart enough to keep them off the front page.)

Chrome does some cool things, of course, as anything coming out of Google always has. But its biggest innovation seems to be more completely merging local and global search, a direction in which Firefox 3 is also moving, although with fewer unfortunate consequences. And, as against that, despite the "incognito" mode (similar to IE8) there is the issue of what data goes back to Google for its coffers.

It would be nice to think that Chrome might herald a new round of browser innovation and that we might start seeing browsers that answer different needs than are currently catered for. For example: as a researcher I'd like a browser to pay better attention to archiving issues: a button to push to store pages with meaningful metadata as well as date and time, the URL the material was retrieved from, whether it's been updated since and if so how, and so on. There are a few offline browsers that sort of do this kind of thing, but patchily.

The other big question hovering over Chrome is standards: Chrome is possible because the World Wide Web Consortium has done its work well. Standards and the existence of several competing browsers with significant market share has prevented any one company from seizing control and turning the Web into the kind of proprietary system Tim Berners-Lee resisted from the beginning. Chrome will be judged on how well it renders third-party Web pages, but Google can certainly tailor its many free services to work best with Chrome - not so different a proposition from the way Microsoft has controlled the desktop.

Because: the big thing Chrome does is bring Google out of the shadows as a competitor to Microsoft. In 1995, Business Week ran a cover story predicting that Java (write once, run on anything) and the Web (a unified interface) could "rewrite the rules of the software industry". Most of the predictions in that article have not really come true - yet - in the 13 years since it was published; or if they have it's only in modest ways. Windows is still the dominant operating system, and Larry Ellison's thin clients never made a dent in the market. The other big half of the challenge to Microsoft, GNU/Linux and the open-source movement, was still too small and unfinished.

Google is now in a position to deliver on those ideas. Not only are the enabling technologies in place but it's now a big enough company with reliable enough servers to make software as a Net service dependable. You can collaboratively process your words using Google Docs, coordinate your schedules with Google Calendar, and phone across the Net with Google Talk. I don't for one minute think this is the death of Microsoft or that desktop computing is going to vanish from the Earth. For one thing, despite the best-laid cables and best-deployed radios of telcos and men, we are still a long way off of continuous online connectivity. But the battle between the two different paradigms of computing - desktop and cloud - is now very clearly ready for prime time.

Wendy M. Grossman's Web site hasn 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 at 4:50 PM | Permalink | Comments (0) | TrackBacks (0)

The news that Comcast is openly imposing a monthly 250Gb bandwidth cap for its broadband subscribers sounds, as many have noted, more generous than it is. Comcast doesn't have to lower the cap progressively for customers to feel the crunch; the amount of data everyone shifts around grows inexorably year by year. Just as the 64K 640K Bill Gates denies he ever said was enough for anybodyis today barely an email, soon 250Gb will be peanuts. Comcast's move will more likely pull the market away from all-you-can-eat to arguably logical banded charging.

We should keep that in mind as the European Parliament goes to debate the telecoms package on Tuesday, with a first reading plenary vote scheduled for the Strasbourg session on September 22-25.

Many of the consumer provisions make sense, such as demanding that all users have free access to the EU-wide and national emergency numbers, that there be at least one directory enquiries service, and that there be "adequate" geographical coverage of public payphones. Those surrounded by yapping mobile phones everywhere they go may wonder why we still need payphones, but the day your battery dies, your phone gets lost, stolen, or broken, or you land in a foreign country and discover that for some reason your phone doesn't work, you'll be grateful, trust me.

The other consumer provision everyone has to like is the one that requires greater transparency about pricing. What's unusual about the Comcast announcement is that it's open and straightforward; in the UK so far, both ISPs and "all-you-can-eat" music download services have a history of being coy about exactly what level of use is enough to get you throttled or banned. In credit cards, American Express's "no preset spending limit" is valuable precisely because it gives the consumer greater flexibility than the credit limits imposed by Visa and Mastercard; in online services the flexibility is all on the side of the supplier. Most people would be willing to stay on the south side of a bandwidth cap if only they knew what it was. One must surmise that service providers don't like to disclose the cap because they think knowing what it is will encourage light users to consume more, upsetting the usage models their business plans are based on.

The more contentious areas are, of course, those that relate to copyright infringement. Navigating through the haze of proposed amendments and opinions doesn't really establish exactly what's likely to happen. But in recent months there have been discussions of everything from notice-and-takedown rules to three-strikes-and-you're-offline. Many of these defy the basic principles on which European and American justice is supposed to rest: due process and proportionate punishment. Take, for example, the idea of tossing someone offline and putting them on a blacklist so they can't get an account with another ISP. That fails both principles: either an unrelated rightsholder of the original ISP or both would be acting as a kangaroo court, and being thrown offline would not only disconnect the user from illegal online activities but in many cases make it impossible for that person's whole household to do homework, pay bills, and interact with both government and social circles.

That punishment would be wholly disproportioniate even if you could guarantee there would be no mistakes and all illegal activities would be punished equally. But in fact no one can guarantee that. An ISP cannot scan traffic and automatically identify copyright infringement; and with millions of people engaging in P2P file-sharing (seemingly the target of most of this legislation) any spotting of illegal activity has to be automated. In addition, over time, as legal downloads (Joss Whedon's dr horrible and his sing-a-long blog managed 2.2 million downloads from iTunes in the first week besides crashing its streaming server) outstrip illegal ones, simply being a heavy user won't indicate anything about whether the user's activity is legal or not.

Part of the difficulty is finding the correct analogy. Is the crime of someone who downloads a torrent of The Big Bang Theory and leaves the downloaded copy seeding afterwards the same as that of someone who sets up a factory and puts out millions of counterfeit DVD copies? Is downloading a copy of the series the same as stealing the DVDs from a shop? I would say no: counterfeit DVDs unarguably cost the industry sales in a way that downloading does not, or not necessarily. Similarly, stealing a DVD from a shop has a clearly identifiable victim (the shop itself) in a way that downloading a copy does not. But in both those cases the penalties are generally applied by courts operating under democratically decided procedures. That is clearly not the case when ISPs act on complaints by rightsholders with no penalties imposed upon them for false accusations. A more appropriate punishment would be a fine, and even that should be limited to cases of clear damage, such as the unauthorized release of material that has yet to be commercially launched.

For all these reasons, ISPs should be wary of signing onto the rightsholders' bandwagon when their concern is user demand for bandwidth. We would, I imagine, see very different responses from them if, as I think ought to happen, anti-trust law were invoked to force the separation of content owners from bandwidth providers.

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 at 2:39 PM | Permalink | Comments (0) | TrackBacks (0)

A couple of years ago I did an interview with Ed Iacobucci CEO and founder of Dayjet, a new kind of airline. Dayjet has no published timetable; instead, prospective passengers (mostly company CEOs and other business types with little time to spare for driving between ill-served smaller cities in the American south) specify their departure point, their destination, and a window of time for Dayjet to get them there. Dayjet responds with a price based on the number of full seats in the plane. The airline, said Iacobucci, is software expressed as a service. And - and this is the key point here - constructing an intellectual property business in such a way meant he didn't have to worry about copying.

Cut to: the current battles over P2P. Danny O'Brien observed recently that with terabyte disk drives becoming luggable and the back catalogue of recorded music being "only" 4Tb, in the medium term the big threat to the music companies isn't P2P but file-swapping between directly connected hard drives, no Internet needed; no detection possible.

Cut to: the amazing career of Alan Ayckbourn and the Stephen Joseph Theatre in Scarborough, North Yorkshire.

Ayckbourn is often thought of as Britain's answer to Neil Simon, but the comparison is unfair to Ayckbourn. Simon is of course a highly skilled playwright and jokesmith, but his characters are in nothing like the despair that Ayckbourn's are, and he has none of the stagecraft. Partly, that may be because Ayckbourn has his own theatre to play with. Since 1959, when his first play was produced, Ayckbourn has written 71 plays (and still counting), and just about all of them were guaranteed production in advance at the Stephen Joseph Theatre, where Ayckbourn has been artistic director since 1974.

Many of them play with space and time. In How the Other Half Loves two dinners share stage space and two characters though they occur on different nights in different living rooms. In Communicating Doors characters shift through the same hotel room over four decades. In Taking Steps three stories of a house are squashed flat into a single stage set. He also has several sets of complementary plays, such as The Norman Conquests, a trilogy which sets each of the plays - the story of a weekend house party - in a different room.

It was in 1985, during a period of obsession with the plays Intimate Exchanges that I decided that at some point I really had to see Alan Ayckbourn's work in its native habitat. Partly, this was due to the marvellous skill with which Lavinia Bertram and Robin Herford shifted among four roles each. Intimate Exchanges is scored for just two actors, and the plays' conceit is that they chronicle, via a series of two-person scenes, 16 variant consequences of a series of escalating choices. Bertram and Herford were the original cast, imported into London from Scarborough. So my thought was: if this is the kind of acting they have up there, one must go. (As bizarre as it seems to go from London to anywhere to go to the theater.)

This year, reading that Ayckbourn is about to retire as artistic director, it seemed like now or never. It's worth the trip: although many of Ayckbourn's plays work perfectly well on a traditional proscenium stage and he's had a lot of success in London's West End and on Broadway (and in fact around the world; he's the most performed playwright who isn't Shakespeare), the theatre-in-the-round adds intimacy. That's particularly true in this summer's trio of ghost plays: Haunting Julia (1994, a story of the aftermath of a suicide)), Snake in the Grass (2002, a story of inheritance and blackmail), and Life and Beth (2008, a story of survival and widowhood). In all these stories, the closer you can get to the characters the better, and the compared to the proscenium stage SJT's round theatre is the equivalent of the cinematic close-up.

That intimacy may be a partial explanation of why so little of Ayckbourn's work has been adapted to movies - and when it has, the results have been so disappointing. Generally, they're either shallow caricatures (such as A Chorus of Disapproval) or wistful and humorless rather than robust and funny (like Alain Resnais' attempts, including Intimate Exchanges). There have been some good TV productions (The Norman Conquests, Season's Greetings (set in a hall surrounded by bits of a living room and dining room)), but these are mysteriously not available commercially.

That being the case, it's hard to understand the severity of the official Ayckbourn Web site's warning about bootleg copies. Given that they know the demand is there, and given the amount those 71 plays are making in royalties and licensing fees, why not buy up the rights to those productions and release them, or begin a project of recording current SJT productions and revivals with a view to commercial release? The SJT shop sells scripts. Why not DVDs?

Asking that risks missing the essential nature of theater, which, along with storytelling, is probably one of the earliest forms of intellectual property expressed as a service. A film is infinitely copiable; every live performance is different, if only subtly, because audience feedback varies. I still wish they'd do it, though.

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 at 12:02 PM | Permalink | Comments (0) | TrackBacks (0)

Yesterday, a US federal appeals court reversed a lower court ruling that might have invalidated open-source licenses. The case, Jacobsen v. Katzer, began more than two years ago with a patent claim.

Open-source software developer Robert Jacobsen manages the collective effort that produced Java Model Railroad Interface, which allows enthusiasts to reprogram the controller chips in their trains. JMRI is distributed under the Kamind, aka KAM Industriesviolating the conditions "does not create liability for copyright infringement where it would not otherwise exist". It is this decision that has been reversed.

This win for Jacobsen doesn't get him anything much yet: the case is simply remanded back to the California District Court for further consideration. But it gets the rest of the open-source movement quite a lot. The judgement affirms Richard Stallman's original insight that created the General Public License in the first place, that copyright could be used to set works free as well as to close them down.

The decision hinges on the question of whether the licensing terms are conditions or covenants, a distinctions that's clear as glass to a copyright lawyer and clear as mud to everyone else. According to the Electronic Frontier Foundation's helpful explanation (and they have lots of copyright lawyers to explain this sort of thing), it's the difference between contract law and copyright law. Violating conditions means you don't have a copyright license; violating covenants means you've broken the contact but you still have a license. In the US, it's also the difference between federal and state law. When you violate the license's conditions, therefore, as Lawrence Lessig explains , what you have is a copyright infringement.

It's hard to understand how the district court could have taken the view it did. It is very clear from both the licenses themselves and from the copious documentation of the thinking that went into their creation that their very purpose was to ensure that work created collectively and intended to be free for use, modification, and redistribution could not be turned into a closed commercial product that benefited only the company or individual that sells it. To be sure, it's not what the creators of copyright - intended as a way to give authors control over publishers - originally had in mind.

But once you grant the idea of a limited monopoly and say that creators should have the right to control how their work is used, it makes no sense to honor that right only if it's used restrictively. Either creators have the legal right to determine licensing conditions or they have not. (The practical right is of course a different story; economics and the size of publishing businesses give them sufficient clout to impose terms on creators that those creators wouldn't choose.). Seems to me that a creator could specify as a licensing condition that the work could only be published on the side of a cow, and any publisher fool enough to agree to that would be bound by it or be guilty of infringement.

But therein lies the dark side of copyright licensing conditions. The Jacobsen decision might also give commercial software publishers Ideas about the breadth of conditions they can attach to their end-user license agreements. As if these weren't already filled with screeds of impenetable legalese, much of which could be charitably described as unreasonable. EFF points this out and provides a prime example: the licensing terms imposed by World of Warcraft owner Blizzard Entertainment have been upheld in court.

Blizzard's terms ban automated playing software such as Glider, whose developer, Michael Donnelly, was the target of the suit. EFF isn't arguing that Blizzard doesn't have the right to ban bots from its servers; EFF just doesn't think accusing Glider users of copyright infringement for doing is a good legal precedent. Public Knowledge has a fuller explanation of the implications of this case, which it filed as an amicus brief. Briefly, PK argues that upholding these terms as copyright conditions could open the way for software publishers to block software that interoperates with theirs. (Interestingly, Blizzard's argument seems to rely on the notion that software copied into RAM is a copyright infringement, an approach I recall Europe rejecting a few years ago).

You'd think no company would want to sue its own customers. But keeping the traditional balance copyright law was created to achieve between providing incentives for artists and creators and public access to ideas continues to require more than relying on common sense.

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 at 10:32 AM | Permalink | Comments (0) | TrackBacks (0)

There's a certain irony in the International Olympic Committee's choice of YouTube as its broadcast platform for the Beijing Olympics, which started last night or this morning depending on your time zone. The plan is that the IOC's official channel will bring clips of Olympic coverage to the 77 countries in Africa, Asia, and the Middle East where it hasn't sold TV rights. This is the first time the Olympics will have official Internet coverage.

The IOC said eight years ago that it would not allow Internet broadcasting until technology was in place to control geographical distribution reliably. Four years ago, major broadcasters like the BBC did their first Webcasts of the Games to subscribers in the right geographical areas who had broadband. And now YouTube: the Olympics are starting to do their own TV production.

The irony lies in a couple of things. First of all, of course, are all those suits YouTube is currently experiencing. There's the Viacom suit, the one in which the judge has ordered YouTube to turn over "anonymized" user data. There's the €500 million suit brought by Mediaset, Italy's largest commercial broadcaster, owned by prime minister Silvio Berlusconi, which has said it will also claim compensation for lost advertising revenues. Music publishers. Football leagues. And so on. It's a surprise that the IOC is partnering with YouTube rather than suing Google.

Second of all is that even though YouTube (which, as it was only founded in February 2005, didn't actually exist at the time of the last summer Olympics) seems to be capable of blocking viewers from the wrong sort of IP address from the official channel the odds are pretty good that in a very short time the amount of unrestricted "unofficial" Olympic coverage on the site will dwarf the official stuff. It remains to be seen what kind of policing effort the IOC mounts to prevent that.

But the third irony is of course that there are plenty of ways to see the Olympics that bypass local broadcasters. And plenty of motives for doing so: US viewers, for example, have for years been frustrated by NBC's insistence on saving the biggest events for prime-time evening viewing, even if that means showing them on tape delay many hours after they actually took place. Got a friend with broadband and a VPN in another country that shows events live? VPN into friend's network and access their local broadcaster's stream via their network. British friends ought to be especially in demand for this kind of thing, since the BBC's coverage is...actually, comprehensive isn't really a big enough word for it.

If you're friendless and don't care about real-time viewing, you'll probably find the sport of your choice popping up pretty quickly via the usual torrent sites. True, that, too, will be time-delayed, but you will still get it sooner than those poor NBC-afflicted saps.

If you're friendless and do care about real-time viewing, your best bet is to download one of the many Chinese P2P TV players such as TVU Player (desktop and mobile phone versions), Sopcast (desktop and Web versions), or PPLive, or head over to Channelsurfing.net. These things tap into the open streams from broadcasters all over the world. Not ideal: the output is in a small, low-res screen on your computer, but as against that there's the benefit of having the commentary in a (usually) incomprehensible language. It's hard to get so annoyed with commentators you don't understand. (TVU Player showed the Olympic opening ceremony over what seemed to be an Italian channel.) Channelsurfing.net publishes a schedule you can click on. With the other players the schedule is always a little bit of a mystery, although AsiaPlate seems to be helpful with respect to the Olympic streaming schedule. (Its tennis page, however, hasn't been updated since February.)

By 2012, it would be a logical progression for the IOC to offer streaming video from its own site, particularly for the smaller niche sports that don't get much coverage even in the best-endowed countries. NBC is boasting as much as 3,600 hours of coverage if you include TV and broadband services, standard and high-def; NBC has said 2,900 hours of it will be live. The difficulty for the IOC is that according to its own figures (PDF) 50 percent of its revenues - $2.57 billion - come from broadcast rights (and much of that from NBC). Sponsorship is 40 percent, ticketing 8 percent, and licensing and other sources only 2 percent. It's hard to imagine the Net being able to replace that kind of revenue any time soon. What's more likely is pressure on broadcasters to encrypt those open streams.

Sports, particularly the biggest events, seem likely to continue to increase in value to broadcasters: they are one of the few things that a mass of people really care about seeing live. Which is the fourth irony: both the IOC's own official YouTube channel and an important portion (a little over 20 percent) of the official channels of its biggest broadcaster, NBC, are both tape-delayed.

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 at 3:32 PM | Permalink | Comments (0) | TrackBacks (0)

This week the European Commission decided to ignore protests and economic evidence in favour of the record companies and adopted a proposal for term extension in sound recordings (PDF) to 95 years instead of the current 50 years.

There is one almost good thing in the proposal: that when a recording is due to enter the public domain the publisher has one year to use it or lose it - and losing it means the rights will revert to the performer. If the performer also doesn't use it, then it comes into the public domain. I say "almost good" because that reversion of rights needs to happen much earlier in the life of a recording; rights should revert, as they do in book publishing, when the company takes a recording out of commercial release.

The rest is a batch of justifications for giving the record companies what they want based on the very real and very terrible economics of most musical careers. These bad arguments are begetting wrongheaded debate.

Ars Technica, for example, has chosen to complain that the proposed extension smacks of grotesque entitlement. But this is wholly unfair: in general the push for term extension is not coming from musicians but from record companies. And that article's complaint that musicians should have made provision for their old age the way everyone else has to is undercut by the figures quoted a few paragraphs later. The couple of thousand pounds that represents the high end of what an "average" pensioner musician might receive according to McCreevy's estimates might help them buy a new condensing boiler one year when it gets cold. It's not going to make the difference between poverty and a comfortable life.

Even if we were talking about riches, though, that particular argument, if followed to its logical conclusion, would do away with copyright altogether: if it sounds like special pleading to ask for term extension to fund retirement, then surely the same must be true of the money received during the first 50 years of copyright.

PWJs - people with jobs - may not see why a musician recording a song should be different than a plumber installing a bathtub. Even some of our own don't. The late journalist John Diamond used to say you don't pay the plumber royalties every time you use a bathtub he's installed, not even if people buy tickets for the privilege of seeing it. But royalties are a trade-off; in return for shouldering the considerable risk of a creative career creators get the right to exploit their work. It is some incentive. But it's not why people try for artistic careers, since people do this - and fail at it - by the thousand. The odds are terrible: the proposal itself notes that only 5 percent of performers make a living from their profession. But over all the point all musicians would make is that if someone is going to be making money out of their work they feel they deserve some of it.

Royalties from sound recordings are part of what at least theoretically makes a full-time professional musical career possible. This is the bargain society made in allowing copyright in sound recordings in the first place. It is not about paying people pensions. The proposal estimates that term extension will mean continued payments to approximately 7,000 musicians in the larger EU countries; if we simply want to support retired musicians it would be cheaper to let the state give them a handout.

A more reasonable argument is to say that when today's 70-somethings went into the studio in 1958 - and when the record companies paid them to do so - they made a contract with society that after 50 years their recordings would go into the public domain. There certainly is now no question of incentive: if term is extended they can't retroaactively decide to have recorded more back then. Generations of musicians since have gone on recording and the record companies are not complaining that it's difficult to find people who will accept "only" a 50-year term of copyright. Whining that they don't like the terms of the social contract now should bear as little weight as someone in a divorce hearing claiming they signed the pre-nup without reading it.

But these are negative arguments. The more positive arguments have come from for example the Gowers report, which argued against term extension on economic grounds. These are being ignored. My favourite bit of the Commission's proposal is the completely backward bit that argues that there will be no difference to consumers because public domain recordings do not sell for less than copyrighted ones - and anyway it doesn't matter because there are plenty of alternative noises people can listen to.

The good news is that this is the last time the recording industry will be able to claim that it is lobbying for term extension to benefit artists. Unless the anti-aging folks get a miracle together, 40 years from now, when these recordings are nearing their new expiration date, all the artists will be dead. Trying to garner sympathy for their heirs will be a lot weaker argument, emotionally speaking.

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 at 1:54 PM | Permalink | Comments (0) | TrackBacks (0)

This is a shortened version of a talk I gave at Musicians, Fans, and Copyright at the LSE on Wednesday, March 19, 2008.

Most discussions about copyright with respect to music do not include musicians. The notable exception is the record companies' trophy musicians who appear at government hearings. Because these tend to be the most famous and well-rewarded musicians they can find, their primarily contribution to the dabate seems to be to try to make politicians think, "We love you, we can't bear that you should starve, the record company must be right." It's a long time since I made a living playing, so I can't pretend to represent them. But I can make a few observations. Folk musicians in particular stand at the nexus of all the copyright arguments: they are contemporary artists and songwriters, but they mine their material from the public domain.

Every musician, at every level of the business, has been ripped off (PDF), usually when they can least afford it. The result is that they tend to be deeply suspicious of any attempt to limit their rights. The music business has such a long history of signing the powerless - young, inexperienced musicians, the black blues musicians of the Mississippi Delta, and many others - to exploitive contracts that it's hard to understand why they're still allowed to get away with it. Surely it ought to be possible to limit what rights and terms the industry can dictate to the inexperienced and desperate with stars in their eyes?

Steve Gillette, author with Tom Campbell of the popular 1966 song "Darcy Farrow", says that when Ian & Sylvia wanted to record the song, they were told to hire someone to collect royalties on their behalf. That person did little to collect royalties for many years. Gillette and Campbell eventually won a court judgement with a standard six-month waiting period - during which time John Denver recorded the song and put it on his best-selling album, Rocky Mountain High, giving the publisher a motive to fight back. They were finally able to wrest back control of the song in about 1990.

In book publishing it is commonplace for the rights to revert to authors if and when the publisher decides to withdraw their work from sale. There is no comparable practice in the music business. And so, people I know on the folk scene whose work has gone out of commercial release find themselves in the situation where their fans want to buy their music but they can't sell it. As one musician said, "I didn't work all those years to have my music stuck in a vault."

Pete Coe, a traditional performer and songwriter, tells me that the common scenario is that a young musician signs a recording contract early on, and then the company goes out of business and the recordings are bought by others. The purchasing company buys the assets - the recordings - but not the burden, the obligation to pass on royalties to the original artists. Coe himself, along with many others, is in this situation; some of his early recordings have been through two such bankruptcies. The company that owns them now owns many other folk releases of the period and either refuses to re-release the recordings or refuses to provide sales figures or pay royalties, and is not a member of MCPS. Coe points out that this company would certainly refuse to cooperate with any effort to claim the reversion of rights.

In a similar case, Nic Jones, a fine and widely admired folk guitarist who played almost exclusively traditional music, was in a terrible car accident in about 1981 that left him unable to play. Over the following years his recordings were bought up but not rereleased, so that an artist now unable to work could not benefit from his back catalogue. It is only in the last few years, with the cost of making and distributing music falling, that he and his wife have managed to release old live recordings on their own label. Term extension would, if anything, hurt Jones's ability to regain control over and exploit his own work. (Note: I have not canvassed Jones's opinion.)

The artists in these cases, like any group of cats, have reacted in different ways. Gillette, who comments also that in general it's the smaller operators who are the biggest problem, says, that term extension "only benefits the corporate media, and in my experience only serves to lend energy to turning the public trust into company assets".

Coe, on the other hand, favors term extension. "We determined," he said by email in 2006, "that once we'd regained our rights, publishing and recording, that they were never again to pass out of our control."

Coe's reaction is understandable. But I think many problems could be solved by forcing the industry to treat musicians and artists more fairly. It's notable that folk artists, through necessity, pioneered what's becoming commonplace now: releasing their own albums to sell to audiences direct at their gigs and via mail, now Web, order.

What the musicians of the future want and need, in my opinion, is the same thing that the musicians of the present and past wanted: control. In my view, there is no expansion of copyright that will give it to them.

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 at 3:40 PM | Permalink | Comments (0) | TrackBacks (0)

There is a certain kind of mentality that is actually proud of not understanding computers, as if there were something honorable about saying grandly, "Oh, I leave all that to my children."

Outside of computing, only television gets so many people boasting of their ignorance. Do we boast how few books we read? Do we trumpet our ignorance of other practical skills, like balancing a cheque book, cooking, or choosing wine? When someone suggests we get dressed in the morning do we say proudly, "I don't know how"?

There is so much insanity coming out of the British government on the Internet/computing front at the moment that the only possible conclusion is that the government is made up entirely of people who are engaged in a sort of reverse pissing contest with each other: I can compute less than you can, and see? here's a really dumb proposal to prove it.

How else can we explain yesterday's news that the government is determined to proceed with Contactpoint even though the report it commissioned and paid for from Deloitte warns that the risk of storing the personal details of every British child under 16 can only be managed, not eliminated? Lately, it seems that there's news of a major data breach every week. But the present government is like a batch of 20-year-olds who think that mortality can't happen to them.

Or today's news that the Department of Culture, Media, and Sport has launched its proposals for "Creative Britain", and among them is a very clear diktat to ISPs: deal with file-sharing voluntarily or we'll make you do it. By April 2009. This bit of extortion nestles in the middle of a bunch of other stuff about educating schoolchildren about the value of intellectual property. Dare we say: if there were one thing you could possibly do to ensure that kids sneer at IP, it would be to teach them about it in school.

The proposals are vague in the extreme about what kind of regulation the DCMS would accept as sufficient. Despite the leaks of last week, culture secretary Andy Burnham has told the Financial Times that the "three strikes" idea was never in the paper. As outlined by Open Rights Group executive director Becky Hogge in New Statesman, "three strikes" would mean that all Internet users would be tracked by IP address and warned by letter if they are caught uploading copyrighted content. After three letters, they would be disconnected. As Hogge says (disclosure: I am on the ORG advisory board), the punishment will fall equally on innocent bystanders who happen to share the same house. Worse, it turns ISPs into a squad of private police for a historically rapacious industry.

Charles Arthur, writing in yesterday's Guardian, presented the British Phonographic Institute's case about why the three strikes idea isn't necessarily completely awful: it's better than being sued. (These are our choices?) ISPs, of course, hate the idea: this is an industry with nanoscale margins. Who bears the liability if someone is disconnected and starts to complain? What if they sue?

We'll say it again: if the entertainment industries really want to stop file-sharing, they need to negotiate changed business models and create a legitimate market. Many people would be willing to pay a reasonable price to download TV shows and music if they could get in return reliable, fast, advertising-free, DRM-free downloads at or soon after the time of the initial release. The longer the present situation continues the more entrenched the habit of unauthorized file-sharing will become and the harder it will be to divert people to the legitimate market that eventually must be established.

But the key damning bit in Arthur's article (disclosure: he is my editor at the paper) is the BPI's admission that they cannot actually say that ending file-sharing would make sales grow. The best the BPI spokesman could come up with is, "It would send out the message that copyright is to be respected, that creative industries are to be respected and paid for."

Actually, what would really do that is a more balanced copyright law. Right now, the law is so far from what most people expect it to be - or rationally think it should be - that it is breeding contempt for itself. And it is about to get worse: term extension is back on the agenda. The 2006 Gowers Review recommended against it, but on February 14, Irish EU Commissioner Charlie McCreevy (previously: champion of software patents) has announced his intention to propose extending performers' copyright in sound recordings from the current 50-year term to 95 years. The plan seems to go something like this: whisk it past the Commission in the next two months. Then the French presidency starts and whee! new law! The UK can then say its hands are tied.

That change makes no difference to British ISPs, however, who are now under the gun to come up with some scheme to keep the government from clomping all over them. Or to the kids who are going to be tracked from cradle to alcopop by unique identity number. Maybe the first target of the government computing literacy programs should be...the government.

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 at 1:34 PM | Permalink | Comments (0) | TrackBacks (0)

On the Net, John Perry Barlow observed long ago, everything is local and everything is global, but nothing is national. It's one of those pat summations that sometimes is actually right. The EU, in the interests of competing successfully with the very large market that is the US, wants to harmonize the national laws that apply to content online.

They have a point. Today's market practices were created while the intangible products of human ingenuity still had to be fixed in a physical medium. It was logical for the publishers and distributors of said media to carve up the world into national territories. But today anyone trying to, say, put a song in an online store, or create a legal TV download service has to deal with a thicket of national collection societies and licensing authorities.

Where there's a problem there's a consultation document, and so there is in this case: the EU is giving us until February 29 (leap year!) to tell them what we think (PDF).

The biggest flaw in the consultation document is that the authors (who needed a good copy editor) seem to have bought wholesale the 2005 thinking of rightsholders (whom they call "right holders"). Fully a third of the consultation is on digital rights management: should it be interoperable, should there be a dispute resolution process, should SMEs have non-discriminatory access to these systems, should EULAs be easier to read?

Well, sure. But the consultation seems to assume that DRM is a) desirable and b) an endemic practice. We have long argued that it's not desirable; DRM is profoundly anti-consumer. Meanwhile, the industry is clearly fulfilling Naxos founder Klaus Heymann's April 2007 prophecy that DRM would be gone from online music within two years. DRM is far less of an issue now than it was in 2006, when the original consultation was launched. In fact, though, these questions seem to have been written less to aid consumers than to limit the monopoly power of iTunes.

That said, DRM will continue to be embedded in some hardware devices, most especially in the form of HDCP, a form of copy protection being built, invisibly to consumers until it gets in their way, into TV sets and other home video equipment. Unfortunately, because the consultation is focused on "Creative Content Online", such broader uses of DRM aren't included.

However, because of this and because some live streaming services similarly use DRM to prevent consumers from keeping copies of their broadcasts (and probably more will in future as Internet broadcasting becomes more widespread), public interest limitations on how DRM can be used seem like a wise idea. The problem with both DRM and EULAs is that the user has no ability to negotiate terms. The consultation leaves out an important consumer consideration: what should happen to content a consumer pays for and downloads that's protected with DRM if the service that sold it closes down? So far, subscribers lose it all; this is clea

The questions regarding multi-territory licensing are far more complicated, and I suspect answers to those depend largely on whether you're someone trying to clear rights for reuse, someone trying to protect your control over your latest blockbuster's markets, or someone trying to make a living as a creative person. The first of those clearly wants to buy one license rather than dozens. The second wants to sell dozens of licenses rather than one (unless it's for a really BIG sum of money). The third, who is probably part of the "Long Tail" mentioned in the question, may be very suspicious of any regime that turns everything he created before 2005 into "back catalogue works" that are subject to a single multi-territory license. Science fiction authors, for example, have long made significant parts of their income by selling their out-of-print back titles for reprint. An old shot in a photographer's long tail may be of no value for 30 years – until suddenly the subject emerges as a Presidential candidate. Any regime that is adopted must be flexible enough to recognize that copyrighted works have values that fluctuate unpredictably over time.

The final set of question has to do with the law and piracy. Should we all follow France's lead and require ISPs to throw users offline if they're caught file-sharing more than three times? We have said all along that the best antidote to unauthorized copying is to make it easy for people to engage in authorized copying. If you knew, for example, that you could reliably watch the latest episode of The Big Bang Theory (if there ever is one) 24 hours after the US broadcast, would you bother chasing around torrent sites looking for a download that might or might not be complete? Technically, it's nonsense to think that ISPs can reliably distinguish an unauthorized download of copyrighted material from an authorized one; filtering cannot be the answer, no matter how much AT&T wants to kill itself trying. We would also remind the EU of the famed comment of another Old Netizen, John Gilmore: "The Internet perceives censorship as damage, and routes around it."

But of course no consultation can address the real problem, which isn't how to protect copyright online: it's how to encourage creators.

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 at 3:58 PM | Permalink | Comments (0) | TrackBacks (0)

If you really want to date yourself, admit that you remember Ted Mack's Amateur Hour. Running from 1949 to 1970, it was the first televised amateur talent competition, the granddaddy of today's reality TV. What's new about the Internet isn't that amateurs can create content people will look at but the ability to access an audience without going through an older-media gatekeeper.

But even on the Internet, user-generated content (as the kids are calling it these days) is not new: user-uploaded messages and files are how people like CompuServe made money. But that was user-originated content. Today's user-generated content on sites like YouTube includes a mass of uploaded video, audio, and text that in fact do not belong to the users but to third parties. These issues are contentious; so much so that Ian Fletcher, the CEO of he UK's Intellectual Property Office, bailed at the thought of appearing before an audience that might publish his remarks out of context on the Net.

To hear media representatives tell it at today's Amateur Hour conference, they regarded it with a pretty benign eye for quite a while.

It wasn't, said Lisa Stancati, assistant general counsel for ESPN, until Google bought YouTube that everyone got mad. "If Google is going to be making money from my content I have a serious problem with that."

Well, fair enough. But how did it get to be your content? Media companies love theoretically paying artists when they want to expand copyright. Come contract time it's a different story, as the tableful from Actors Equity knew all too well. And what about the content of the future?

Marni Pedorella, vice president of NBC Universal, notes that the site the company runs for Battlestar Galactica fans provides raw materials for users to play with. If they upload the mashed-up results, however, NBC takes a royalty-free license in perpetuity. Are older media hoping new media will become a source of what Brian Murphy is calling CGC – for "cheaply generated content". Like reality TV?

Heather Moosnick, vice president of business development for CBS Interactive, recounted CBS's moves to share its content more widely around the Net: you can watch current shows on its Web site, for example (unless you live outside the US). But, she said sadly, if people don't care about copyright – well, there might be fewer CSIs. (Threat or promise? There are three CSI shows. At least she didn't say that less "expert content" will deprive us of Cavemen.)

Because the conference was sponsored by a law school, a lot of the moderators' questions centered on things like: How do you see your risks developing? What is your liability? What about international laws?

And: what is the difference between a professional and an amateur? You might argue that it doesn't matter as long as the content is interesting, but when it comes to the shield laws that allow journalists to protect their sources the difference is important. Should every blogger – hundreds of millions of them – have the right ? Just the ones with mass audiences who make a living from running AdSense alongside their postings? None? Is a blogger with an audience of 100,000 of the most important people in American politics more or less worthy of protection than a guy writing for a local paper with a circulation of 10,000? Is a fan taking pictures of Lindsay Lohan with a cell phone subject to California's new law limiting paparazzi?

To me, the key difference between an amateur and a professional is that the professional does the job even when he doesn't feel like it.

The source of this idea is Agatha Christie, who defined the moment she became a professional writer, some ten or 15 books into her career. She was mid-divorce, and she liked neither the book nor her work on it – but she had a contract. The amateur can say, Screw the contract, I don't feel like getting up this morning. The professional makes the work arrive, even if it stinks. Unfortunately, that practical distinction is not easily describable in law.

You could define it a different way: a professional is the guy you'll miss if he goes on strike, as TV writers are about to do over residual payments for digital reuse.

Another line: a lot of large companies operate their message boards on the basis of the safe harbor protections in the DMCA, under which you're not liable as long as you take down material when notified of infringement or other legal problems. What about mixed content? There's a case pending between the Fair Housing Council and Roommates.com because the latter site gave users a questionnaire asking such roommate-compatibility questions as age, race, gender, sexual orientation… All these are questions that landlords are not allowed to ask under the Fair Housing Act. At what point is someone looking for a roommate subject to that act? Are we really going to refuse to allow people all control over who they live with?

These aren't problems that have solutions, at least yet. They're the user-generated lawsuits of the future.

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).