May 15, 2020


Thumbnail image for sidewalklabs-streetcrossing.pngIn the last few weeks, unlike any other period in the 965 (!) previous weeks of net.wars columns: there were *five* pieces of (relatively) good news in the (relatively) restricted domain of computers, freedom, and privacy.

One: Google sibling Sidewalk Labs has pulled out of the development it had planned with Waterfront Toronto. This project has been contentious ever since the contract was signed in 2017 to turn a 12-acre section of Toronto's waterfront into a data-driven, sensor-laden futuristic city. In 2018, leading Canadian privacy pioneer Ann Cavoukian quit the project after Sidewalk Labs admitted that instead of ensuring the data it collected wouldn't be identifiable it actually would grant third parties access to it. At a panel on smart city governance at Computers, Privacy, and Data Protection 2019, David Murakami Wood gave the local back story (go to 43:30) on the public consultations and the hubris on display. Now, blaming the pandemic-related economic conditions, Sidewalk Labs has abandoned the plan altogether; its public opponents believe the scheme was really never viable in the first place. This is good news, because although technology can help some of urban centers' many problems, it should always be in the service of the public, not an opportunity for a private company to seize control.

Two: The Internet Corporation for Assigned Names and Numbers has rejected the Internet Society's proposal to sell PIR, the owner of the .org generic top-level domain, to the newly created private equity firm Ethos Capital, Timothy B. Lee reports at Ars Technica. Among its concerns, ICANN cited the $360 million in debt that PIR would have been required to take on, Ethos' lack of qualifications to run such a large gTLD, and the lack of transparency around the whole thing. The decision follows an epistolary intervention by California's Attorney General, who warned ICANN that it thought that the deal "puts profit above the public interest" and that ICANN was "abandoning its core duty to protect the public interest". As the overseer of both it (as a non-profit) and the sale, the AG was in a position to make its opinion hurt. At the time when the sale was announced, the Internet Society claimed there were other suitors. Perhaps now we'll find out who those were.

Three: The textbook publishers Cengage and McGraw-Hill have abandoned their plan to merge, saying that antitrust enforcers' requirements that they divest their overlapping businesses made the merger uneconomical. The plan had attracted pushback from students, consumer groups, libraries, universities, and bookstores, as well as lawmakers and antitrust authorities.

Four: Following a similar ruling from the UK Intellectual Property Office, the US Patent and Trademark Office has rejected two patents listing the Dabus AI system as the inventor. The patent offices argue that innovations must be attributed to humans in order to avoid the complications that would arise from recognizing corporations as inventors. There's been enough of a surge in such applications that the World Intellectual Property Organization held a public consultation on this issue that closed in February. Here again my inner biological supremacist asserts itself: I'd argue that the credit for anything an AI creates belongs with the people who built the AI. It's humans all the way down.

Five: The US Supreme Court has narrowly upheld the right to freely share the official legal code of the state of Georgia. Carl Malamud, who's been liberating it-ought-to-be-public data for decades - he was the one who first got Securities and Exchange Commission company reports online in the 1990s, and on and on - had published the Official Code of Georgia Annotated. The annotations in question, which include summaries of judicial opinions, citations, and other information about the law, are produced by Lexis-Nexus under contract to the state of Georgia. No one claimed the law itself could be copyrighted, but the state argued it owned copyright in the annotations, with Lexis-Nexus as its contracted commercial publisher. The state makes no other official version of its code available, meaning that someone consulting the non-annotated free version Lexis-Nexus does make available would be unaware of later court decisions rejecting parts of some of the laws the legislature passed. So Malamud paid the hundreds of dollars to buy a full copy of the official annotated version, and published it in full on his website for free access. The state sued. Public.Resource lost in the lower courts but won on appeal - and, in a risky move, urged the Supreme Court to take the case and set the precedent. The vote went five to four. The impact will be substantial. Twenty-two other states publish their legal code under similar arrangements with Lexis-Nexus. They will now have to rethink.

All these developments offer wins for the public in one way or another. None should be cause for complacence. Sidewalk Labs and other "surveillance city" purveyors will try again elsewhere with less well-developed privacy standards - and cities still have huge problems to solve. The future of .org, the online home for the world's non-profits and NGOs, is still uncertain. Textbook publishing is still disturbingly consolidated. The owners of AIs will go on seeking ways to own their output. And ensuring that copyright does not impede access to the law that governs those 23 American states does not make those laws any more just. But, for a brief moment, it's good.


Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

This week's net.wars, "Quincunx", wakes up to discover a confluence of (relatively) good news in the last few weeks of computers, freedom, and privacy:

April 2, 2020

Uncontrolled digital unlending

The Internet has made many aspects of intellectual property contentious at the best of times. In this global public health emergency, it seems inarguable that some of them should be set aside. Who can seriously object to copying ventilator parts so they can be used to save lives in this crisis? Similarly, if there were ever a moment for scientific journals to open up access to all paywalled research on coronaviruses to aid scientists all over the world, this is it.

But what about book authors, the vast majority of whom make only modest sums from their writing? This week, National Public Radio set off a Twitter storm when it highlighted the Internet Archive's "National Emergency Library". On Twitter, authors demanded to know why NPR was promoting a "pirate site". One wrote, "They stole [my book]." Another called it "Flagrant and wilful stealing." Some didn't mind: "Thrilled there's 15 of my books"; Longtime open access campaigner Cory Doctorow endorsed it.

The background: the Internet Archive's Open Library originally launched in 2006 with a plan to give every page of every book its own URL. Early last year, public conflict over the project built enough for net.wars to notice, when dozens of authors', creators', and publishers' organizations accused the site of mass copyright violation and demanded it cease distributing copyrighted works without permission.

The Internet Archive finds self-justification in a novel argument: that because the state of California has accepted it as a library it can buy and scan books and "lend" the digital copies without requiring explicit permission. On this basis, the Archive offers anyone two weeks to read any of the 1.4 million copyrighted books in its collection either online as images or downloaded as copy-protected Adobe Digital Editions. Meanwhile, the book is unavailable to others, who wait on a list, as in a physical library. The Archive's white paper by lawyers David Hansen and Kyle K. Courtney argues that this "controlled digital lending" is legal.

Enter the coronavirus,. On the basis that the emergency has removed access to library books from both school kids and adults for teaching, research, scholarship, and "intellectual stimulation", the Archive is dropping the controls - "suspending waitlists" - and is presenting those 1.4 million books as the globally accessible National Emergency Library. "An opportunistic attack", the Association of American Publishers calls it.

The anger directed at the Archive has led it to revise its FAQ (Google Doc) and publish a blog posting. In both it explains that you can still only "borrow" a book for 14 days, but no waitlists means others can, too, and you can renew immediately if you want more time. The change will last until June 30, 2020 or the end of the US national emergency, whichever is later. It claims support "from across the library and educational communities". According to the FAQ, the collection includes very few current textbooks; the collection is primarily ordinary books published between 1922 and the early 2000s.

The Archive still justifies all this as "fair use" by saying it's what libraries do: buy (or accept as donations) and lend books. Outside the US, however, library lending pays authors a small but real royalty on those loans, payments the Archive ignores. For the National Writers Union, Edward Hasbrouck objects strenuously: besides not paying authors or publishers, the Archive takes no account of whether the works are still in print or available elsewhere in authorized digital editions. Authors who have updated digital editions specifically for the current crisis have no way to annotate the holdings to redirect people. Authors *can* opt out -but opt-out is the opposite of how copyright law works. " Do librarians and archivists really want to kick authors while our incomes are down?" he asks, pointing to the NWU's 2019 explanation of why CDL is a harmful divergence from traditional library lending. Instead, he suggests that public funds should be spent to purchase or license the books for public use.

Other objectors make similar points: many authors make very little in the first place; authors with new books, the result of years of work, are seeing promotional tours and paid speaking engagements collapse. Others' books are being delayed or canceled. Everyone else involved in the project is being paid - just not the people who created the works in the first place.

At the New Yorker, writer Jill Lepore again cites Courtney, who argues that in exigent circumstances libraries have "superpowers" that allows them to grant exceptional access "for research, scholarship, and study". This certainly seems a reason for libraries of scientific journal articles, like JSTOR, to open up their archives. But is the Archive's collection comparable?

Overall, it seems to me there are two separate issues. The first is the service itself - the unique legal claim, the service's poor image quality and typo-ridden uncorrected ebooks, and the refusal to engage with creators and publishers. The second - that it's an emergency stop-gap - is more defensible; no one expected the abrupt closure of libraries and schools. A digital service is ideally placed to fill the resulting gaps, and ensuring universal access to books should be part of our post-crisis efforts to rebuild with better resilience. For the first, however, the Internet Archive should engage with authors and publishers. The result could be a better service for all sides.

Illustrations: Books (Abhi Sharma via wikimedia

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

July 5, 2019

Legal friction

ny-public-library-lions.JPGWe normally think of the Internet Archive, founded in 1996 by Brewster Kahle, as doing good things. With a mission of "universal access to all knowledge", it archives the web (including many of my otherwise lost articles), archives TV news footage and live concerts, and provides access to all sorts of information that would otherwise be lost.

Equally, authors usually love libraries. Most grew up burrowed into the stacks, and for many libraries are an important channel to a wider public. A key element of the Archive's position in what follows rests on the 2007 California decision officially recognizing it as a library.

Early this year, myriad authors and publishers organizations - including the UK's Society of Authors and the US's Authors Guild - issued a joint statement attacking the Archive's Open Library project. In this "controlled digital lending" program, borrowers - anyone, via an Archive account - get two weeks to read ebooks, either online in the Archive's book reader or offline in a copy-protected format in Adobe Digital Editions.

What offends rights holders is that unlike the Gutenberg Project, which offers downloadable copies of works in the public domain, Open Library includes still-copyrighted modern works (including net.wars-the-book). The Archive believes this is legal "fair use".

You may, like me, wonder if the Archive is right. The few precedents are mixed. In 2000, "My" let users stream CDs after proving ownership of a physical copy by inserting it in their CD drive. In the resulting lawsuit the court ruled's database of digitized CDs an infringement, partly because it was a commercial, ad-supported service. Years later, Amazon does practically the same thing..

In 2004, Google Books began scanning libraries' book and magazine collections into a giant database that allows searchers to view scraps of interior text. In 2015, publishers lost their lawsuit. Google is a commercial company - but Google Books carries no ads (though it presumably does collect user data), and directs users to source copies from libraries or booksellers.

A third precedent, cited by the Authors Guild, is Capitol Records v. ReDigi. In that case, rulings have so far held that ReDigi's resale process, which transfers music purchased on iTunes from old to new owners means making new and therefore infringing copies. Since the same is true of everything from cochlear implants to reading a web page, this reasoning seems wrong.

Cambridge University Press v. Patton, filed in 2008 and still ongoing, has three publishers suing Georgia State University over its e-reserves system, which loans out course readings on CDL-type terms. In 2012, the district court ruled that most of this is fair use; appeal courts have so far mostly upheld that view.

The Georgia case is cited David R. Hansen and Kyle K. Courtney in their white paper defending CDL. As "format-shifting", they argue CDL is fair use because it replicates existing library lending. In their view, authors don't lose income because the libraries already bought copies, and it's all covered by fair use, no permission needed. One section of their paper focuses on helping libraries assess and minimize their legal risk. They concede their analysis is US-only.

From a geek standpoint, deliberately introducing friction into ebook lending in order to replicate the time it takes the book to find its way back into the stacks (for example) is silly, like requiring a guy with a flag on a horse to escort every motor car. And it doesn't really resolve the authors' main complaints: lack of permission and no payment. Of equal concern ought to be user complaints about zillions of OCR errors. The Authors Guild's complaint that saved ebooks "can be made readable by stripping DRM protection" is, true, but it's just as true of publishers' own DRM - so, wash.

To this non-lawyer, the white paper appears to make a reasonable case - for the US, where libraries enjoy wider fair use protection and there is no public lending right, which elsewhere pays royalties on borrowing that collection societies distribute proportionately to authors.

Outside the US, the Archive is probably screwed if anyone gets around to bringing a case. In the UK, for example, the "fair dealing" exceptions allowed in the Copyright, Designs, and Patents Act (1988) are narrowly limited to "private study", and unless CDL is limited to students and researchers, its claim to legality appears much weaker.

The Authors Guild also argues that scanning in physical copies allows libraries to evade paying for library ebook licenses. The Guild's preference, extended collective licensing, has collection societies negotiating on behalf of authors. So that's at least two possible solutions to compensation: ECL, PLR.

Differentiating the Archive from commercial companies seems to me fair, even though the ask-forgiveness-not-permission attitude so pervasive in Silicon Valley is annoying. No author wants to be an indistinguishable bunch of bits an an undifferentiated giant pool of knowledge, but we all consume far more knowledge than we create. How little authors earn in general is sad, but not a legal argument: no one lied to us or forced us into the profession at gunpoint. Ebook lending is a tiny part of the challenges facing anyone in the profession now, and my best guess is that whatever the courts decide now eventually this dispute will just seem quaint.

Illustrations: New York Public Library (via pfhlai at Wikimedia).

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

March 2, 2018

In sync

Discarding images-King David music.jpgUntil Wednesday, I was not familiar with the use of "sync" to stand for a music synchronization license - that is, a license to use a piece of music in a visual setting such as a movie, video game, or commercial. The negotiations involved can be Byzantine and very, very slow, in part because the music's metadata is so often wrong or missing. In one such case, described at Music 4.5's seminar on developing new deals and business models for sync (Flash), it took ten years to get the wrong answer from a label to the apparently simple question: who owns the rights to this track on this compilation album?

The surprise: this portion of the music business is just as frustrated as activists with the state of online copyright enforcement. They don't love the Digital Millennium Copyright Act (2000) any more than we do. We worry about unfair takedowns of non-infringing material and bans on circumvention tools; they hate that the Act's Safe Harbor grants YouTube and Facebook protection from liability as long as they remove content when told it's infringing. Google's automated infringement detection software, ContentID, I heard Wednesday, enables the "value gap", which the music industry has been fretting about for several years now because the sites have no motivation to create licensing systems. There is some logic there.

However, where activists want to loosen copyright, enable fair use, and restore the public domain, they want to dump Safe Harbor, either by developing a technological bypass; or change the law; or by getting FaceTube to devise a fairer, more transparent revenue split. "Instagram," said one, "has never paid the music industry but is infringing copyright every day."

To most of us, "online music" means subscription-based streaming services like Spotify or download services like Amazon and iTunes. For many younger people, especially Americans though, YouTube is their jukebox. Pex estimates that 84% of YouTube videos contain at least ten seconds of music. Google says ContentID matches 99.5% of those, and then they are either removed or monetized. But, Pex argues, 65% of those videos remain unclaimed and therefore provide no revenue. Worse, as streaming grows, downloads are crashing. There's a detectable attitude that if they can fix licensing on YouTube they will have cracked it for all sites hosting "creator-generated content".

It's a fair complaint that ContentID was built to protect YouTube from liability, not to enable revenues to flow to rights holders. We can also all agree that the present system means millions of small-time creators are locked out of using most commercial music. The dancing baby case took eight years to decide that the background existence of a Prince song in a 29-second home video of a toddler dancing was fair use. But sync, too, was designed for businesses negotiating with businesses. Most creators might indeed be willing to pay to legally use commercial music if licensing were quick, simple, and cheap.

There is also a question of whether today's ad revenues are sustainable; a graphic I can't find showed that the payout per view is shrinking. Bloomberg finds that increasingly winning YouTubers are taking all with little left for the very long tail.

The twist in the tale is this. MP3 players unbundled albums into songs as separate marketable items. Many artists were frustrated by the loss of control inherent in enabling mix tapes at scale. Wednesday's discussion heralded the next step: unbundling the music itself, breaking it apart into individual beats, phrases and bars, each licensable.

One speaker suggested scenarios. The "content" you want to enjoy is 42 minutes long but your commute is only 38 minutes. You might trim some "unnecessary dialogue" and rearrange the rest so now it fits! My reaction: try saying "unnecessary dialogue" to Aaron Sorkin and let's see how that goes.

I have other doubts. I bet "rearranging" will take longer than watching the four minutes. Speeding up the player slightly achieves the same result, and you can do that *now* for free (try really blown it. More useful was the suggestion that hearing-impaired people could benefit from being able to tweak the mix to fade the background noise and music in a pub scene to make the actors easier to understand. But there, too, we actually already have closed captions. It's clear, however, that the scenarios may be wrong, but the unbundling probably isn't.

In this world, we won't be talking about music, but "music objects". Many will be very low-value...but the value of the total catalogue might rise. The BBC has an experiment up already: The Mermaid's Tears, an "object-based radio drama" in which you can choose to follow any one of the three characters to experience the story.

Smash these things together, and you see a very odd world coming at us. It's hard to see how fair use survives a system that aims to license "music objects" rather than "music". In 1990, Pamela Samuelson warned about copyright maximlism. That agenda does not appear to have gone away.

Illustrations: King David dancing before the Ark of the Covenant, 'Maciejowski Bible', Paris ca. 1240 (via Discarding Images.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

September 7, 2012


Great, anguished howls were heard on Twitter last Sunday when Ustream silenced Neil Gaiman's acceptance speech at the Hugo awards, presented at the World Science Fiction Convention. On Tuesday, something similar happened when, Slate explains, YouTube blocked access to Michelle Obama's speech at the Democratic National Convention once the live broadcast had concluded. Yes, both one of our premier fantasy writers and the First Lady of the United States were silenced by over-eager, petty functionaries. Only, because said petty functionaries were automated copyright robots, there was no immediately available way for the organizers to point out that the content identified as copyrighted had been cleared for use.

TV can be smug here: this didn't happen when broadcasters were in charge. And no, it didn't: because a large broadcaster clears the rights and assumes the risks itself. By opening up broadcasting to the unwashed millions, intermediaries like Google (YouTube) and UStream have to find a way to lay off the risk of copyright infringement. They cannot trust their users. And they cannot clear - or check - the rights manually for millions of uploads. Even rights holder organizations like the RIAA, MPAA, and FACT, who are the ones making most of the fuss, can't afford to do that. Frustration breeds market opportunity, and so we have automated software that crawls around looking for material it can identify as belonging to someone who would object. And then it spits out a complaint and down goes the material.

In this case, both the DNC and the Hugo Awards had permission to use the bit of copyrighted material the bots identified. But the bot did not know this; that's above its pay grade.

This is all happening at a key moment in Europe: early next week, the public consultation closes on the notice-and-takedown rules that govern, among other things, what ISPs and other hosts are supposed to do when users upload material that infringes copyright. There's a questionnaire for submitting your opinions; you have until Tuesday, September 11.

Today's notice and takedown rules date to about the mid-1990s and two particular cases. One, largely but not wholly played out in the US, was the several-years fight between the Church of Scientology and a group of activists who believed that the public interest was served by publishing as widely as possible the documents Scientology preserves from the view of all but it3s highest-level adherents, which I chronicled for Wired in 1995. This case - and other early cases of claimed copyright infringement - let to the passage in 1998 of the Digital Millennium Copyright Act, which is the law governing the way today's notice-and-takedown procedures operate in the US and therefore, since many of the Internet's biggest user-generated content sites are American, worldwide.

The other important case was the 1997 British case of Laurence Godfrey, who sued Demon Internet for libel over a series of Internet postings, spoofed to appear as though they came from him, which the service failed to take down despite his requests. At the time, a fair percentage of Internet users believed - or at least argued - that libel law did not apply online; Godfrey, through the Demon case and others, set out to prove them wrong, and succeeded. The Demon case was eventually settled in 2000, and set the precedent that ISPs could be sued for libel if they failed to have procedures in place for dealing with complaints like these. Result: everyone now has procedures and routinely operates notice-and-takedown, just as cyber rights lawyer Yaman Akdeniz predicted in 1999.

A different set of notice-and-takedown regime is operated, of course, by the Internet Watch Foundation, which was founded in 1996 and recommends that ISPs remove material that IWF have staff have examined and believe is potentially illegal. This isn't what we're talking about here: the IWF responds to complaints from the public and at all stages humans are involved in making the decisions.

Granted that it's not unreasonable that there should be some mechanism to enable people to complain about material that infringes their copyrights or is libellous, what doesn't get sufficient attention is that there should also be a means of redress for those who are unjustly accused. Even without this week's incidents we have enough evidence - thanks to the detailed collection of details showing how DMCA notices have been used and abused in the years since the law's passage being continuously complied at Chilling Effects - to be able to see the damage that overbroad, knee-jerk deletion can do.

It's clear that balance needs to be restored. Users should be notified promptly when the content they have posted is removed; there should be a fast turnaround means of redress; and there clearly needs to be a mechanism by which users can say, "This content has been cleared for use".

By those standards, Ustream has actually behaved remarkably well. It hasapologized and is planning to rebroadcast the Hugo Awards on Sunday, September 9. Meanwhile, it's pulled its automated copyright policing system to understand what went wrong. To be fair, the company that supplies the automated copyright policing software, Vobile, argues that its software wasn't at fault: it merely reports what it finds. It's up to the commissioning company to decide how to act on those reports. Like we said: above the bot's pay grade.

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.

August 24, 2012

Look and feel

Reading over the accounts of the deliberations in Apple vs Samsung, the voice I keep hearing in my head is that of Philippe Kahn, the former CEO of Borland, one of the very first personal computing software companies, founded in 1981. I hear younger folks scratching their heads at that and saying, "Who?" Until 1992 Borland was one of the top three PC software companies, dominant in areas like programming languages and compilers; it faltered when it tried to compete with Lotus (long since swallowed by IBM) and Microsoft in office suites. In 1995 Kahn was ousted, going on to found three other companies.

What Kahn's voice is saying is, "Yes, we copied."

The occasion was an interview I did with him in July 1994 for the now-defunct magazine Personal Computer World, then a monthly magazine the size of a phone book. (Oh - phone book. Let's call it two 12.1 inch laptops, stacked, OK?). Among the subjects we rambled through was the lawsuit between Borland and Lotus, one of the first to cover the question of whether and when reverse-engineering infringes copyright. After six years of litigation, the case was finally decided by the Supreme Court in 1996.

The issue was spreadsheet software; Lotus 1-2-3 was the first killer application that made people want - need - to buy PCs. When Borland released its competing Quattro Pro, the software included a mode that copied Lotus's menu structure and a function to run Lotus's macros (this was when you could still record a macro with a few easy keyboard strokes; it was only later that writing macros began to require programming skills). In the district court, Lotus successfully argued that this was copyright infringement. In contrast, Borland, which eventually won the case on appeal, argued that the menu structure constituted a system. Kahn felt so strongly about pursuing the case that he called it a crusade and the company spent tens of millions of dollars on it.

"We don't believe anyone ever organized menus because they were expressive, or because the looked good," Kahn said at the time. "Print is next to Load because of functional reasons." Expression can be copyrighted; functionality instead is patented. Secondly, he argued, "In software, innovation is driven fundamentally by compatibility and interoperability." And so companies reverse-engineer: someone goes in a room by themselves and deconstructs the software or hardware and from that produces a functional specification. The product developers then see only that specification and from it create their own implementation. I suppose a writer's equivalent might be if someone read a lot of books (or Joseph Campbell's Hero With a Thousand Faces), broke down the stories to their essential elements, and then handed out pieces of paper that specified, "Entertaining and successful story in English about an apparently ordinary guy who finds out he's special and is drawn into adventures that make him uncomfortable but change his life." Depending on whether the writer you hand that to is Neil Gaiman, JRR Tolkien, or JK Rowling, you get a completely different finished product.

The value to the public of the Lotus versus Borland decision is that it enabled standards. Imagine if every piece of software had to implement a different keystroke to summon online help, for example (or pay a license fee to use F1). Or think of the many identical commands shared among Internet Explorer, Firefox, Opera, and Chrome: would users really benefit if each browser had to be completely different, or if Mosaic had been able to copyright the lot and lock out all other comers? This was the argument that As the EFF made in its amicus brief, that allowing the first developer of a new type of software to copyright its interface could lock up that technology and its market or 75 years or more.

In the mid 1990s, Apple - in a case that, as Harvard Business Review highlights, was very similar to this one - sued Microsoft over the "look and feel" of Windows. (That took a particular kind of hubris, given that everyone knows that Apple copied what it saw at Xerox to make that interface in the first place.) Like that case (and unlike Lotus versus Borland), Apple versus Samsung revolves around patents (functionality) rather than copyright (expression). But the fundamental questions in all three cases are the same: what is a unique innovation, what builds on prior art, and what is dictated by such externalities as human anatomy and psychology and the expectations we have developed over decades of phone and computer use?

What matters to Apple and Samsung is who gets to sell what in which markets. We, however, have a lot more important skin in this game: what is the best way to foster innovation and serve consumers? In Apple's presentation on Samsung's copying, Apple makes the same tired argument as the music industry: that if others can come along and copy its work it won't have any incentive to spend five years coming up with stuff like the iPad. Really? As Allworth notes, is that what they did after losing the Microsoft case? If Apple had won then and owned the entire desktop market, do you think they'd have ever had the incentive to develop the iPad? We have to hope that copying wins.

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.

August 17, 2012

Bottom dwellers

This week Google announced it would downgrade in its search results sites with an exceptionally high number of valid copyright notices filed against them. As the EFF points out, the details of exactly how this will work are scarce and there is likely to be a big, big problem with false positives - that is, sites that are downgraded unfairly. You have only to look at the recent authorial pile-on that took down the legitimate ebook lending site LendInk for what can happen when someone gets hold of the wrong side of the copyright stick.

Unless we know how the inclusion of Google's copyright notice stats will work, how do we know what will be affected, how, and for how long? There is no transparency to let a site know what's happening to it, and no appeals process. Given the many abuses of the Digital Millennium Copyright Act, under which such copyright notices are issued, it's hard to know how fair such a system will be. Though, granted: the company could have simply done it and not told us. How would we know?

The timing of this move is interesting because it comes only a few months after Google began advocating for the notion that search engine results are, like newspaper editorial matter, a form of free speech under the First Amendment. The company went as far as to commission the legal scholar Eugene Volokh to write a white paper outlining the legal arguments. These basically revolve around the idea that a search algorithm is merely a new form of editorial judgment; Google returns search results in the order in which, in its opinion, they will be most helpful to users.

In response, Tim Wu, author of The Master Switch, argued in the New York Times that conceding the right of free speech to computerized decisions brings serious problems with it in the long run. Supposing, for example, that antitrust authorities want to regulate Google to ensure that it doesn't use its dominance in search to unfairly advantage its other online properties - YouTube, Google Books, Google Maps, and so on. If search results are free speech, that type of regulation becomes unconstitutional. On BoingBoing, Cory Doctorow responded that one should regulate the bad speech without denying it is speech. Earlier, in the Guardian Doctorow argued that Google's best gambit was making the argument about editorial integrity; publications make esthetic judgments, but Google famously loves to live by numbers.

This part of the argument is one that we're going to be seeing a lot of over the next few decades, because it boils down to this bit of Philip K. Dick territory: should machines programmed by humans have free speech rights? And if so, under what circumstances? If Google search results are free speech, is the same true of the output of credit-scoring algorithms or speed cameras? A magazine editor can, if asked, explain the reasoning process by which material was commissioned for, placed in, or rejected by her magazine; Google is notoriously secretive about the workings of its algorithms. We do not even know the criteria Google uses to judge the quality of its search results.

These are all questions we're going to have to answer as a society; and they are questions that may be answered very differently in countries without a First Amendment. My own first inclination is to require some kind of transparency in return: for every generation of separation between human and result, there must be an additional layer of explanation detailing how the system is supposed to work. The more people the results affect, the bigger the requirement for transparency. Something like that.

The more immediate question, of course, is, whether Google's move will have an impact on curbing unauthorized file-sharing. My guess is not that much; few file-sharers of my acquaintance use Google for the purpose of finding files to download.

Yet, in an otherwise sensible piece about the sentencing of owner Anton Vickerman to four years in prison in the Guardian, Dan Sabbagh winds up praising Google's decision with a bunch of errors. First of all, he blames the music industry's problems on mistakes "such as failing to introduce copy protection". As the rest of us know, the music industry only finally dropped copy protection in 2009 - because consumers hate it. Arguably, copy protection delayed the adoption of legal, paid services by years. He also calls the decision to sell all-you-can-eat subscriptions to music back catalogues a mistake; on what grounds is not made clear.

Finally, he argues, "Had Google [relegated pirate sites' results] a decade ago, it might not have been worthwhile for Vickerman to set up his site at all."

Ten years ago? In 2002, Napster had been gone for less than a year. Gnutella and BitTorrent were measuring their age in months. iTunes was a year old. The Pirate Bay wouldn't exist for some months more. Google was two years away from going public. The mistake then wasn't downgrading sites oft accused of copyright infringement. The mistake then was not building legal, paid downloading services and getting them up and running as fast as possible.

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.

July 20, 2012

In the country of the free

About a year and a half ago, I suddenly noticed that The Atlantic was posting a steady stream of interesting articles to Twitter (@theatlantic) and realized it was time to resubscribe. In fact, I would argue that the magazine is doing a lot of what Wired used to do in its digital coverage.

I don't, overall, regret it. But this month's issue is severely marred by this gem, from Elizabeth Wurtzel (the woman who got famous for taking Prozac and writing about it:

Of the Founders' genius ideas, few trump intellectual-property rights. At a time when Barbary pirates still concerned them, the Framers penned an intellectual-property clause--the world's first constitutional protection for copyrights and patents. In so doing, they spawned Hollywood, Silicon Valley, Motown, and so on. Today, we foolishly flirt with undoing that. In a future where all art is free (the future as pined for by Internet pirates and Creative Commons zealots), books, songs, and films would still get made. But with nobody paying for them, they'd be terrible. Only people who do lousy work do it for free.

Wurtzel's piece, entitled "Charge for Your Ideas", is part of a larger section on innovative ideas; other than hers, most of them are at least reasonable suggestions. I hate to make the editors happy by giving additional attention to something that should have been scrapped, but still: there are so many errors in that one short paragraph that need rebuttal.

Very, very few people - the filmmaker Nina Paley being the only one who springs rapidly to mind (do check out her fabulous film Sita Sings the Blues) - actually want to do away with copyright. And even most of those would like to be paid for their work. Paley turned Sita over to her audience to distribute freely because the deals she was being offered by distributors were so terrible and demanded so much lock-in that she thought she could do better. And she has, including fees for TV and theatrical showings and sales of DVDs and other items. More important from her perspective, she's built an audience for the film that it probably never would have found through traditional channels and that will support and appreciate her future work. As so many of us have said, obscurity is a bigger threat to most artists than loss of revenues.

Neither Creative Commons, nor its founder, Larry Lessig, nor the Open Rights Group, nor the Electronic Frontier Foundation, nor anyone else I can think of among digital rights campaigners has ever said that copyright should be abolished. The Pirate Party, probably the most radical among politically active groups pushing for copyright reform, wants to cut it way back, true - but not to abolish it. Even free software diehard Richard Stallman finds copyright useful as a way of blocking people from placing restrictions on free software.

Creative Commons' purpose in life is to make it easy for anyone who creates online content to attach to it a simple, easy-to-understand license that makes clear what rights to the content are reserved and which are available. One of those licenses blocks all uses without permission; others allow modification, redistribution, or commercial use, or require attribution.

Wurtzel fails to grasp that one may wish to reform something without wishing to terminate its existence. It was radical to campaign for copyright reform 20 years ago; today even the British government agrees copyright reform is needed (though we may all disagree about the extent and form that reform should take).

The Framers did not invent copyright. It was that pesky country they left, Britain, that enacted the first copyright law, the Statute of Anne, in 1710. We will, however, allow the "first constitutional" bit to stand. That still does not mean that the copyright status of Mickey Mouse should dictate national law.

As for pirates - the seafaring kind, not the evil downloader with broadband - they are far from obsolete. In fact, piracy is on the increase, and 1 major concern to both governments and shipping businesses. In May, the New York Times highlighted the growing problem of Somali pirates off the Horn of Africa.

Her final claim, that "Only people who do lousy work do it for free" was the one that got me enraged enough to write this. It's an insult to every volunteer, every generous podcaster, every veteran artist who blogs to teach others, every beginning artist finding their voice, every intern, and every person who has a passion for something and pursues it for love, whether they're an athlete in an unpopular sport or an amateur musician who plays only for his friends because he doesn't want his relationship with music to be damaged by making it his job. It is certainly true that much of what we imagine is "free" is paid for in other ways: bloggers whose blogs are part of the output their employer pays for, free/open source software writers who like the credit and stature their contributions give them, and so on. But imagine the miserable, miserly, misanthropic society we'd be living in if her claim were true? We'd need that Prozac.

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.

July 6, 2012

The license, the judge, and the wardrobe

A lot of people have wondered for a long time whether the licensing conditions imposed by software publishers really would stand up in a court of law. And now we know: this week the Court of Justice of the European Union ruled (PDF) that people who buy downloaded software cannot be prohibited from selling on their used licenses.

The case: the German company UsedSoft advertises and sells, among others, licenses to Oracle software. These it acquires from Oracle customers who either are no longer using them or bought group licenses (sold in blocks of 25) and don't need all of the seats. The customers then download the software from Oracle's Web site. The license you buy from UsedSoft includes the remaining portion of the maintenance contract with Oracle, which marks its licenses "non-transferable". Oracle sued to stop this; the German regional court upheld the complaint. UsedSoft appealed to the German Federal Court of Justice, which referred the case to the EU.

With physical objects we take for granted the concept the US calls "first sale doctrine". That is, the person or company who manufactures the object only gets to sell it the first time. Thereafter, it's yours to do with what you like - trash it, recycle it, loan it out, sell it on to someone else, even burn it, all without owing anything to the person who made it and/or sold it to you. Software manufacturers, however, have emulated the publishers of books, music, film, and other media by unbundling the right to distribute the physical object and the right to make copies of the content embedded in it. When you buy a book, you gain the rights to that one copy of the book; but you don't gain the right to scan in the contents and give away or sell new copies of the contents. Or at least, if you do such a thing you would be wise to be Google Books rather than a 22-year-old college student with broadband and a personal Web site.

Usedsoft v Oracle revolves around the interactions of several pieces of EU law covering copyright and the distribution of goods, but ultimately the court's decision is clear enough. The purpose of the "exhaustion" of the manufacturer's distribution rights after the first sale was, in the ruling's argument to ensure that the original manufacturer should not be responsible for damage to the physical object that takes place between the first and second sales. Digitally distributed copies (especially from the original site) don't have this problem. Hence the ECJ's decision: first sale doctrine applies to software. The one caveat in all this: the original license-holder must delete or render unusable his original licensed copy of the software, even though it's difficult to prove he's done it.

The conditions of software licenses have never seemed fair. For one thing, back when software was primarily distributed in shrink-wrapped packages, you couldn't read the license to agree to it until you'd rendered the software unreturnable by opening the package. "Clickwrap" more or less ended that issue.

For another thing, the terms are contrary to the way humans normally think about the objects they acquire. In England, as the retired solicitor and fellow Open Rights Group advisory council member Nicholas Bohm explained to me for the Guardian in 2008, this has always seemed particularly dubious; precedents have established that valid terms and conditions are a contract set at the point of sale. In his example, a notice in a hotel room the wardrobe warning that you leave items there at your own risk has no legal weight because the contract of was made at the reception desk.

Finally, with physical objects we take it for granted that we have the right to demand satisfaction - repair, replacement, or refund - if the item we buy is flawed. Obviously, this right has its limits. We can reasonably expect a refund or replacement for a piece of clothing that rips badly or discolors on first washing (assuming we haven't done something dumb). And we can reasonably expect the manufacturer to pay for repairs to a new car that turns left when you steer right, unstoppably leaks fluids, or whose battery overheats to the point of bursting into flames. With software, we are pretty much stuck with the bugs and security holes, and software licenses pretty much universally disclaim liability for anything that happens when you install and use the software. This was the subject of a failed attempt in the around 2000, to modify the Uniform Commercial Code to both hold software publishers liable for defects - but in return allow them to impose any restrictions they wanted.

The impact of this week's judgment will be interesting. How will it affect music, ebooks, DRM, movies, games? That's a question for the lawyers and judges in future cases.

We can just say this: what an amazing week. First this ruling. Then the news that the Anti-Counterfeiting Trade Agreement was finally and truly rejected by the European Parliament. And a British man will play the Wimbledon final for the first time in 74 years. I don't know which of the three was less likely.

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.

June 29, 2012

Artificial scarcity

A couple of weeks ago, while covering the tennis at Eastbourne for Daily Tennis, I learned that there is an ongoing battle between the International Tennis Writers Association and the sport at large over the practice of posting interview transcripts online.

What happens is this. Tournaments - the top few layers of the men's (ATP) and women's (WTA) tours - pay stenographers from ASAP Sports to attend players' press conferences and produce transcripts, which are distributed to the journalists on-site to help them produce accurate copy. It's a fast service; the PR folks come around the press room with hard copies of the transcript perhaps 10-15 minutes after the press session ends.

Who gives press conferences? At Eastbourne, like most smaller events, the top four seeds all are required to do media on the first day. After that, every day's match winners are required to oblige if the press asks for them; losers have more discretion but the top players generally understand that with their status and success level comes greater responsibility to publicize the game by showing up to answer questions. The stenographer at Eastbourne was a highly trained court reporter who travels the golf and tennis worlds taking down these questions and answers verbatim on a chord keyboard.

It turns out the transcripts particular battle has been going on for a while; witness this unhappy blogger's comment from June, 2011, after discovering that the French Open had bowed to pressure and stopped publishing interviews on its Web site. The same blogger had earlier posted ITWA's response to the complaints.

ITWA's arguments are fairly simple. It's a substantial investment to travel the tour (true; per year full-time you're talking at least $50,000). If interview transcripts are posted on the Web before journalists have had a chance to write their stories, it won't be worth spending that money because anyone can write stories based on them (true). Newspapers are in dire straits as it is (true). The questions journalists ask the players are informed by their experience and professional expertise; surely they should have the opportunity to exploit the responses they generate before everyone else does - all those pesky bloggers, for example, who read the transcripts and compare them to the journalists' reports and spot the elisions and changes of context.

Now, I don't believe for a second that there will be no coverage of tennis if the press stop traveling the tour. What there won't be is *independent* coverage. Except for the very biggest events, the players will be interviewed by the tours' PR people, and everything published about them will be as sanitized as their Wimbledon whites. Plus some local press, asking things like, "Talk about how much you like Eastbourne." The result will be like the TV stations now that provide their live match commentary by dropping a couple of people in a remote studio. No matter how knowledgeable those people are, their lack of intimate contact with the players and local conditions deadens their commentary and turns it into a recital of their pet peeves. (Note to Eurosport: any time a commentator says, "We talk so often about..." that commentator needs to shut up..)

This is the same argument they used to have about TV: if people can see the match on TV they won't bother to travel to it (and sometimes you do still find TV blackouts of local games). That hasn't really turned out to be true - TV has indeed changed this and every other sport, but by creating international stars and bringing in a lot of money in both payment for TV rights and sponsorship.

My response to the person who told me about this issue was that I didn't think basing your business model on artificial scarcity was going to work, the way the world is going. But this is not the only example of such restrictions; a number of US tournaments do not allow fans to carry professional-quality cameras onto the ground (to protect the interests of professional photographers).

What intrigued me about the argument - which at heart is merely a variant of the copyright wars - is that it pits the interests of fans and bloggers against those of the journalists who cover them. For the tournaments and tours themselves it's an inner conflict: they want both newspaper and magazine coverage *and* fan engagement. "Personal" contact with the players is a key part of that - and it is precisely what has diminished. Veteran tennis journalists will tell you that 20 years ago they got to know the players because they'd all be traveling the circuit together and staying in the same hotels. Today, the barriers are up; the players' lounge is carefully sited well away from the media centre.

Yet this little spat reflects the reality that the difference between writing a fan blog and working for a major media outlet is access. There is only so much time the stars in any profession - TV, sports, technology, business - can give to answering outsiders' questions before it eats into their real work. So this isn't really a story of artificial scarcity, though there's no lack of people who want to write about tennis. It's a story of real scarcity - but scarcity that one day soon is going to be differently distributed.

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.

Artificial scarcity

A couple of weeks ago, while covering the tennis at Eastbourne for Daily Tennis, I learned that there is an ongoing battle between the International Tennis Writers Association and the sport at large over the practice of posting interview transcripts online.

What happens is this. Tournaments - the top few layers of the men's (ATP) and women's (WTA) tours - pay stenographers from ASAP Sports to attend players' press conferences and produce transcripts, which are distributed to the journalists on-site to help them produce accurate copy. It's a fast service; the PR folks come around the press room with hard copies of the transcript perhaps 10-15 minutes after the press session ends.

Who gives press conferences? At Eastbourne, like most smaller events, the top four seeds all are required to do media on the first day. After that, every day's match winners are required to oblige if the press asks for them; losers have more discretion but the top players generally understand that with their status and success level comes greater responsibility to publicize the game by showing up to answer questions. The stenographer at Eastbourne was a highly trained court reporter who travels the golf and tennis worlds taking down these questions and answers verbatim on a chord keyboard.

It turns out the transcripts particular battle has been going on for a while; witness this unhappy blogger's comment from June, 2011, after discovering that the French Open had bowed to pressure and stopped publishing interviews on its Web site. The same blogger had earlier posted ITWA's response to the complaints.

ITWA's arguments are fairly simple. It's a substantial investment to travel the tour (true; per year full-time you're talking at least $50,000). If interview transcripts are posted on the Web before journalists have had a chance to write their stories, it won't be worth spending that money because anyone can write stories based on them (true). Newspapers are in dire straits as it is (true). The questions journalists ask the players are informed by their experience and professional expertise; surely they should have the opportunity to exploit the responses they generate before everyone else does - all those pesky bloggers, for example, who read the transcripts and compare them to the journalists' reports and spot the elisions and changes of context.

Now, I don't believe for a second that there will be no coverage of tennis if the press stop traveling the tour. What there won't be is *independent* coverage. Except for the very biggest events, the players will be interviewed by the tours' PR people, and everything published about them will be as sanitized as their Wimbledon whites. Plus some local press, asking things like, "Talk about how much you like Eastbourne." The result will be like the TV stations now that provide their live match commentary by dropping a couple of people in a remote studio. No matter how knowledgeable those people are, their lack of intimate contact with the players and local conditions deadens their commentary and turns it into a recital of their pet peeves. (Note to Eurosport: any time a commentator says, "We talk so often about..." that commentator needs to shut up..)

This is the same argument they used to have about TV: if people can see the match on TV they won't bother to travel to it (and sometimes you do still find TV blackouts of local games). That hasn't really turned out to be true - TV has indeed changed this and every other sport, but by creating international stars and bringing in a lot of money in both payment for TV rights and sponsorship.

My response to the person who told me about this issue was that I didn't think basing your business model on artificial scarcity was going to work, the way the world is going. But this is not the only example of such restrictions; a number of US tournaments do not allow fans to carry professional-quality cameras onto the ground (to protect the interests of professional photographers).

What intrigued me about the argument - which at heart is merely a variant of the copyright wars - is that it pits the interests of fans and bloggers against those of the journalists who cover them. For the tournaments and tours themselves it's an inner conflict: they want both newspaper and magazine coverage *and* fan engagement. "Personal" contact with the players is a key part of that - and it is precisely what has diminished. Veteran tennis journalists will tell you that 20 years ago they got to know the players because they'd all be traveling the circuit together and staying in the same hotels. Today, the barriers are up; the players' lounge is carefully sited well away from the media centre.

Yet this little spat reflects the reality that the difference between writing a fan blog and working for a major media outlet is access. There is only so much time the stars in any profession - TV, sports, technology, business - can give to answering outsiders' questions before it eats into their real work. So this isn't really a story of artificial scarcity, though there's no lack of people who want to write about tennis. It's a story of real scarcity - but scarcity that one day soon is going to be differently distributed.

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.

May 4, 2012

A matter of degree

What matters about a university degree? Is it the credential, the interaction with peers and professors, the chance to play a little while longer before turning adult, or the stuff you actually learn? Given how much a degree costs, these are pressing questions for the college-bound and their parents.

This is particularly true in the US, where today's tuition fees at Cornell University's College of Arts and Sciences, are 14 times what they were when I started there as a freshman in 1971. This week, CNBC highlighted the costs of liberal arts colleges such as Colorado's Pepperdine, where tuition, housing, and meals add up to $54,000 a year. Hah, said friends: it's $56,000 at Haverford, where their son is a sophomore.

These are crazy numbers even if you pursue a "sensible" degree, like engineering, mathematics, or a science. In fact, it's beginning to approach the level after which a top-class private university degree no longer makes the barest economic sense. A Reuters study announced this week found that the difference between a two-year "associate" degree and a four-year BA or BSc over the course of a 30-year career is $500,000 to $600,000 (enough to pay for your child's college degree, maybe). Over a career a college degree adds about $1 million over a high school diploma, depending on the major you pick and the field you go into. An accountant could argue that there's still some room for additional tuition increases - but then, even if that accountant has teenaged kids his earnings are likely well above average.

Anthony Carnevale, the director of the center that conducted this research, tells Reuters this is a commercialization of education. Yes, of course - but if college costs as much per child as the family home inevitably commercial considerations will apply even if you don't accept Paypal founder Peter Thiel's argument about a higher education bubble.

All this provides context for this week's announcement that Harvard and MIT are funding a $60 million initiative, EDx, to provide online courses for all and sundry. Given that Britain's relatively venerable Open University was set up in 1969 to bring university-level education to a wide range of non-traditional students, remote learning is nothing new. Still, EDx is one of a number of new online education initiatives.

Experimentation with using the Internet as a delivery medium for higher education began in the mid 1990s (TXT). The Open University augmented the ability for students to interact with each other by adding online conferencing to its media mix, and many other institutions began offering online degrees. Almost the only dissenting voice at the time was that of David F. Noble, a professor at Canada's York University. In a series of essays written from 1997 to 2001, Digital Diploma Mills he criticized the commercialization of higher education and the move toward online instruction. Coursework that formerly belonged to professors and teachers, he argued, would now become a product sold by the university itself; copyright ownership would be crucial. By 2001, he was writing about the failure of many of the online ventures to return the additional revenues their institutions had hoped for.

When I wrote about these various concerns in 1999 for Scientific American (TXT) reader email accused me of being an entitled elitist and gleefully threatened me with a wave of highly motivated, previously locked-out students who would sweep the world. The main thing I hoped I highlighted, however, was the comparatively high drop-out rate of online students. This is a pattern that has continued through to mid-2000s today with little change. This seems to me a significant problem for the industry - but explains why MIT and Harvard, like some other recent newcomers, are talking about charging for exams or completion certificates rather than the courses themselves. Education on the shareware model: certainly fairer for students hoping for career advancement and great for people who just want to learn from the best brands. (Not, thankfully, the future envisaged by one of the interviewees in those articles, who feared online education would be dominated by Microsoft and Disney).

In an economic context, the US's endemic credentialism means it's the certificate that has economic value, not necessarily the learning itself. But across the wider world, it's easy to imagine local authorities taking advantage of the courses that are available and setting their own exams and certification systems. For Harvard and MIT, the courses may also provide a way of spotting far-flung talent to scoop up and educate more traditionally.

Of course, economics are not the only reason to go to college: it may make other kinds of sense. Today's college-educated parents often want their kids to go to college for more complex reasons to do with quality of life, adaptability to a changing future, and the kind of person they would like their kids to be. In my own case, the education I had gave me choices and the confidence that I could learn anything if I needed to. That sort of motivation, sadly, is being priced out of the middle class. Soon it will be open only to the very talented and poor who qualify for scholarships, and the very wealthy who can afford the luxury. No wonder the market sees an opportunity.

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.

April 28, 2012

Interview with Lawrence Lessig

This interview was originally intended for a different publication; I only discovered recently that it hadn't run. Lessig and I spoke in late January, while the fate of the Research Works Act was still unknown (it's since been killed.

"This will be the grossest money election we've seen since Nixon," says the law professor Lawrence Lessig, looking ahead to the US Presidential election in November. "As John McCain said, this kind of spending level is certain to inspire a kind of scandal. What's needed is scandals."

It's not that Lessig wants electoral disaster; it's that scandals are what he thinks it might take to wake Americans up to the co-option of the country's political system. The key is the vast, escalating sums of money politicians need to stay in the game. In his latest book, Republic, Lost, Lessig charts this: in 1982 aggregate campaign spending for all House and Senate candidates was $343 million; in 2008 it was $1.8 billion. Another big bump upward is expected this year: the McCain quote he references was in response to the 2010 Supreme Court decision in Citizens United legalising Super-PACs. These can raise unlimited campaign funds as long as they have no official contact with the candidates. But as Lessig details in Republic, Lost, money-hungry politicians don't need things spelled out.

Anyone campaigning against the seemingly endless stream of anti-open Internet, pro-copyright-tightening policies and legislation in the US, EU, and UK - think the recent protests against the US's Stop Internet Piracy (SOPA) and Protect Intellectual Property (PIPA) Acts and the controversy over the Digital Economy Act and the just-signed Anti-Counterfeiting Trade Agreement (ACTA) treaty - has experienced the blinkered conviction among many politicians that there is only one point of view on these issues. Years of trying to teach them otherwise helped convince Lessig that it was vital to get at the root cause, at least in the US: the constant, relentless need to raise escalating sums of money to fund their election campaigns.

"The anti-open access bill is such a great example of the money story," he says, referring to the Research Works Act (H.R. 3699), which would bar government agencies from mandating that the results of publicly funded research be made accessible to the public. The target is the National Institutes of Health, which adopted such a policy in 2008; the backers are journal publishers.

"It was introduced by a Democrat from New York and a Republican from California and the single most important thing explaining what they're doing is the money. Forty percent of the contributions that Elsevier and its senior executives have made have gone to this one Democrat." There is also, he adds, "a lot to be done to document the way money is blocking community broadband projects".

Lessig, a constitutional scholar, came to public attention in 1998, when he briefly served as a special master in Microsoft's antitrust case. In 2000, he wrote the frequently cited book Code and Other Laws of Cyberspace, following up by founding Creative Commons to provide a simple way to licence work on the Internet. In 2002, he argued Eldred v. Ashcroft against copyright term extension in front of the Supreme Court, a loss that still haunts him. Several books later - The Future of Ideas, Free Culture, and Remix - in 2008, at the Emerging Technology conference, he changed course into his present direction, "coding against corruption". The discovery that he was writing a book about corruption led Harvard to invite him to run the Edmond J. Safra Foundation Center for Ethics, where he fosters RootStrikers, a network of activists.

Of the Harvard centre, he says, "It's a bigger project than just being focused on Congress. It's a pretty general frame for thinking about corruption and trying to think in many different contexts." Given the amount of energy and research, "I hope we will be able to demonstrate something useful for people trying to remedy it." And yet, as he admits, although corruption - and similar copyright policies - can be found everywhere his book and research are resolutely limited to the US: "I don't know enough about different political environments."

Lessig sees his own role as a purveyor of ideas rather than an activist.

"A division of labour is sensible," he says. "Others are better at organising and creating a movement." For similar reasons, despite a brief flirtation with the notion in early 2008, he rules out running for office.

"It's very hard to be a reformer with idealistic ideas about how the system should change while trying to be part of the system," he says. "You have to raise money to be part of the system and engage in the behaviour you're trying to attack."

Getting others - distinguished non-politicians - to run on a platform of campaign finance reform is one of four strategies he proposes for reclaiming the republic for the people.

"I've had a bunch of people contact me about becoming super-candidates, but I don't have the infrastructure to support them. We're talking about how to build that infrastructure." Lessig is about to publish a short book mapping out strategy; later this year he will update incorporating contributions made on a related wiki.

The failure of Obama, a colleague at the University of Illinois at Chicago in the mid-1990s, to fulfil his campaign promises in this area is a significant disappointment.

"I thought he had a chance to correct it and the fact that he seemed not to pay attention to it at all made me despair," he says.

Discussion is also growing around the most radical of the four proposals, a constitutional convention under Article V to force through an amendment; to make it happen 34 state legislatures would have to apply.

"The hard problem is how you motivate a political movement that could actually be strong enough to respond to this corruption," he says. "I'm doing everything I can to try to do that. We'll see if I can succeed. That's the objective."

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 seriesand one of other interviews.

March 16, 2012

The end of the beginning

The coming months could see significant boosts to freedom of expression in the UK. Last night, the Libel Reform Campaign launched its report on alternatives to libel litigation at an event filled with hope that the Defamation Bill will form part of the Queen's speech in May. A day or two earlier, Consumer Focus hosted an event at the House of Commons to discuss responses to the consultation on copyright following the Hargreaves Review, which are due March 21. Dare we hope that a year or two from now the twin chilling towers of libel law and copyright might be a little shorter?

It's actually a good sign, said the former judge Sir Stephen Sedley last night, that the draft defamation bill doesn't contain everything reform campaigners want: all bills change considerably in the process of Parliamentary scrutiny and passage. There are some other favorable signs: the defamation bill is not locked to any particular party. Instead, there's something of a consensus that libel law needs to be reformed for the 21st century - after all, the multiple publication rule that causes Internet users so much trouble was created by the 1849 court case Duke of Bunswick v Harmer, in which the Duke of Brunswick managed to get the 17-year limit overridden on the basis that his manservant, sent from Paris to London, was able to buy copies of the magazine he believed had defamed him. These new purchases, he argued successfully, constituted a new publication of the libel. Well, you know the Internet: nothing ever really completely dies, and so that law, applied today, means liability in perpetuity. Ain't new technology grand?

The same is, of course, true in spades of copyright law, even though it's been updated much more recently; the Copyright, Designs, and Patents Act only dates to 1988 (and was then a revision of laws as recent as 1956). At the Consumer Focus event, Saskia Walzel argued that it's appropriate to expect to reform copyright law every ten to 15 years, but that the law should be based on principles, not technologies. The clauses that allow consumers to record TV programs on video recorders, for example, did not have to be updated for PVRs.

The two have something else in common: both are being brought into disrepute by the Internet because both were formulated in a time when publishers were relatively few in number and relatively powerful and needed to be kept in check. Libel law was intended to curb their power to damage the reputations of individuals with little ability to fight back. Copyright law kept them from stealing artists' and creators' work - and each other's.

Sedley's comment last night about libel reform could, with a little adaptation, apply equally well to copyright: "The law has to apply to both the wealthy bully and the small individual needing redress from a large media organization." Sedley went on to argue that it is in the procedures that the playing field can be leveled; hence the recommendation for options to speed up dispute resolutions and lower costs.

Of course, publishers are not what they were. Even as recently as 1988 the landscape of rightsholders was much more diverse. Many more independent record labels jostled for market share with somewhat more larger ones; scores of independent book publishers and bookshops were thriving; and photographers, probably the creators being damaged the most in the present situation, still relied for their livelihood on the services of a large ecology of small agencies who understood them and cared about their work. Compare that to now, when cross-media ownership is the order of the day, and we may soon be down to just two giant music companies.

It is for this reason that I have long argued (as Walzel also said on Tuesday) that if you really want to help artists and other creators, they will be better served by improving contract law so they can't be bullied into unfair terms than by tightening and aggressively enforcing copyright law.

Libel law can't be so easily mitigated, but in both cases we can greatly improve matters by allowing exceptions that serve the public interest. In the case of libel law, that means scientific criticism: if someone claims abilities that are contrary to our best understanding of science, critique on that basis should be allowed to proceed. Similarly, there is clearly no economic loss to rightsholders from allowing exceptions for parody, disabled access, and archiving.

It was Lord McNally, the Minister of Justice who called this moment in the work on libel law reform the end of the beginning, reminding those present that now is to use whatever influence campaigners have with Parliamentarians to get through the changes that are needed. He probably wouldn't think of it this way, but his comment reminded me of the 1970s and 1980s tennis champion Chris Evert, who commented that many (lesser) players focused on reaching the finals of tournaments and forgot, once there, that there was a step further to go to win the title.

So enjoy that celebratory drink - and then get back to 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.

February 24, 2012

Copyright U

"You cannot have democracy without a public domain," says Tracy Mitrano. She clarifies: "Where the issues that matter are part of what people think about every day and we express them to our representatives in a representative democracy."

As commentators, campaigners, and observers keep pointing out, copyright policy hasn't been like that. A key part of the street protests over the Anti-Counterfeiting Trade Agreement (ACTA) was the secrecy of the negotiations over its contents. Similarly, even if there had been widespread content with the provisions of the Digital Economy Act, the way it was passed would be disturbing: on the nod, revised at the last minute with no debate, in the wash-up before the election with many MPs already on the road to their constituencies. If these are such good policies, why do they need to be agreed and passed in such anti-democratic ways?

My conversation with Mitrano is partly an accident of geography: when you're in Ithaca, NY, and interested in the Internet and copyright she's the person you visit. Mitrano is the director of IT policy at Cornell University, one of the first academic institutions where the Internet took hold. As such, she has been on the front lines of the copyright battles of the last 15 years, trying to balance academic values and student privacy against the demands of copyright enforcement, much like a testbed for the wider population. She also convenes an annual computer policy and law conference on Internet culture in the academy.

"Higher education was the canary in the coal mine for the enforcement of copyright and intellectual property on the Internet," she says.

We don't generally think of universities as ISPs, but, particularly in the US where so many students live in dorms, that is one of their functions: to provide high-speed, campus-wide access for tens of thousands of users of all types, from students to staff to researchers, plus serving hundreds of thousands of alumni wanting those prestigious-sounding email addresses. In 2004, Cornell was one of the leaders of discussions with the music industry regarding student subscription fees.

"To have picked on us was to pick on an easy target in the sense that we're fish in a barrel given our dependence on federal funding," she says, "and we're an easily caricatured representation of the problem because of the demographic of students, who care about culture, don't have a lot of money, are interested in new technology, and it all seemed to be flowing to them so easily. And the last reason: we were a patsy, because given that we care about education and we're not competing with the content industry for profits or market share, we wanted to help."

The result: "The content industry paid for and got, through lobbying, legislation that places greater demands on higher education ISPs than on commercial ISPs." The relevant legislation is the Higher Education Act 2008. "They wanted filtering devices on all our networks," Mitrano says, "completely antithetical to all our values." Still, the industry got a clause whose language is very like what's being pushed for now in the UK, the EU, and, in fact, everywhere else.

"After they got what they wanted there, they started in Europe on "three strikes"," she says. "Not they've come back with SOPA, ACTA, and PIPA."

Higher education in the US is still paying the price for that early focus.

"Even under the least strict test of the equal protection clause, the rational basis test, there is no rational basis for why higher education as an ISP has to do anything more or less than a commercial ISP in terms of being a virtual agent of enforcement of the content industry. Their numbers prove to be wrong in every field - how much they're losing, how many alleged offenders, what percentage of offenders the students are alleged to be in the whole world in copyright infringement."

Every mid-career lawyer with an interest in Internet policy tells the story of how tiny and arcane a field intellectual property was 20 years ago. Mitrano's version is that of the 15 students in her intellectual property class, most were engineers wishing to learn about patents; two were English students who wanted to know why J.D. Salinger's biography had been pulled before publication. By the time she finished law school in 1995, the Internet had been opened up to commercial traffic, though few still saw the significance.

"Copyright, at that moment, went from backwater area to front and center in US politics, but you couldn't prove that," she says. "The day it became apparent to most people in American society was the day last month when Wikipedia went black."

Unusually for someone in the US, Mitrano thinks loosening the US's grip on Internet governance is a good idea.

"I'm not really willing to give up US control entirely," she admits, "it's in the US's interests to be thinking about Internet governance much more internationally and much more collaboratively than we do today. And there's nothing more representative than issues around copyright and its enforcement globally."

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.

February 17, 2012

Foul play

You could have been excused for thinking you'd woken up in a foreign country on Wednesday, when the news broke about a new and deliberately terrifying notice replacing the front page of a previously little-known music site, RnBXclusive.

ZDNet has a nice screenshot of it; it's gone from the RnBXclusive site now, replaced by a more modest advisory.

It will be a while before the whole story is pieced together - and tested in court - but the gist so far seems to be that the takedown of this particular music site was under the fraud laws rather than the copyright laws. As far as I'm aware - and I don't say this often - this is the first time in the history of the Net that the owner of a music site has been arrested on suspicion of conspiracy to defraud (instead of copyright infringement ). It seems to me this is a marked escalation of the copyright wars.

Bearing in mind that at this stage these are only allegations, it's still possible to do some thinking about the principles involved.

The site is accused of making available, without the permission of the artists or recording companies, pre-release versions of new music. I have argued for years that file-sharing is not the economic enemy of the music industry and that the proper answer to it is legal, fast, reliable download services. (And there is increasing evidence bearing this out.) But material that has not yet been officially released is a different matter.

The notion that artists and creators should control the first publication of new material is a long-held principle and intuitively correct (unlike much else in copyright law). This was the stated purpose of copyright: to grant artists and creators a period of exclusivity in which to exploit their ideas. Absolutely fundamental to that is time in which to complete those ideas and shape them into their final form. So if the site was in fact distributing unreleased music as claimed, especially if, as is also alleged, the site's copies of that music were acquired by illegally hacking into servers, no one is going to defend either the site or its owner.

That said, I still think artists are missing a good bet here. The kind of rabid fan who can't wait for the official release of new music is exactly the kind of rabid fan who would be interested in subscribing to a feed from the studio while that music is being recorded. They would also, as a friend commented a few years ago, be willing to subscribe to a live feed from the musicians' rehearsal studio. Imagine, for example, being able to listen to great guitarists practice. How do they learn to play with such confidence and authority? What do they find hard? How long does it take to work out and learn something like Dave van Ronk's rendition, on guitar, of Scott Joplin rags with the original piano scoring intact?

I know why this doesn't happen: an artist learning a piece is like a dog with a wound (or maybe a bone): you want to go off in a forest by yourself until it's fixed. (Plus, it drives everyone around you mad.) The whole point of practicing is that it isn't performance. But musicians aren't magicians, and I find it hard to believe that showing the nuts and bolts of how the trick of playing music is worked would ruin the effect. For other types of artists - well, writers with works in progress really don't do much worth watching, but sculptors and painters surely do, as do dance troupes and theatrical companies.

However, none of that excuses the site if the allegations are true: artists and creators control the first release.

But also clearly wrong was the notice SOCA placed on the site, which displayed visitors' IP address, warned that downloading music from the site was a crime bearing a maximum penaltde y of up to ten years in prison, and claimed that SOCA has the capacity to monitor and investigate you with no mention of due process or court orders. Copyright infringement is a civil offense, not a criminal one; fraud is a criminal offense, but it's hard to see how the claim that downloading music is part of a conspiracy to commit fraud could be made to stick. (A day later, SOCA replaced the notice.) Someone browsing to The Pirate Bay and clicking on a magnet link is not conspiring to steal TV shows any more than someone buying a plane ticket is conspiring to destroy the ozone layer. That millions of people do both things is a contributing factor to the existence of the site and the airline, but if you accuse millions of people the term "organized crime" loses all meaning.

This was a bad, bad blunder on the part of authorities wishing to eliminate file-sharing. Today's unworkable laws against file-sharing are bringing the law into contempt already. Trying to scare people by misrepresenting what the law actually says at the behest of a single industry simply exacerbates the effect. First they're scared, then they're mad, and then they ignore you. Not a winning strategy - for anyone.

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.

January 13, 2012

Pot pourri

You have to think that 2012 so far has been orchestrated by someone with a truly strange sense of humor. To wit:

- EMI Records is suing the Irish government for failing to pass laws to block "pirate sites". The way PC Pro tells it, Ireland ought to have implemented site blocking laws to harmonize with European law and one of its own judges has agreed it failed to do so. I'm not surprised, personally: Ireland has a lot of other things on its mind, like the collapse of the Catholic church that dominated Irish politics, education, and health for so long, and the economic situation post-tech boom.

- The US Congress and Senate are, respectively, about to vote on SOPA (Stop Online Piracy Act) and PIPA (Protect Intellectual Property Act), laws to give the US site blocking, search engine de-listing, and other goodies. (Who names these things? SOPA and PIPA sound like they escaped from Anna Russell's La Cantatrice Squelante.) Senator Ron Wyden (D-OR) and Representative Darrell Issa (R-CA) have proposed an alternative, the OPEN Act (PDF), which aims to treat copyright violations as a trade issue rather than a criminal one.

- Issa and Representative Carolyn Maloney (D-NY) have introduced the Research Works Act to give science journal publishers exclusive rights over the taxpayer-funded research they publish. The primary beneficiary would be Elsevier (which also publishes Infosecurity, which I write for), whose campaign contributions have been funding Maloney.

- Google is mixing Google+ with its search engine results because, see, when you're looking up impetigo, as previously noted, what you really want is to know which of your friends has it.

- Privacy International has accused Facebook of destroying someone's life through its automated targeted advertising, an accusation the company disputes.

- And finally, a British judge has ruled that a Sheffield student Richard O'Dwyer can be extradited to the US to face charges of copyright infringement; he owned the now-removed site, which hosted links to unauthorized copies of US movies and TV shows.

So many net.wars, so little time...

The eek!-Facebook-knows-I'm-gay story seems overblown. I'm sure the situation is utterly horrible for the young man in question, whom PI's now-removed blog posting said was instantly banished from his parents' home, but I still would like to observe that the ads were placed on his page by a robot (one without the Asimov Three Laws programmed into it). On this occasion the robot apparently guessed right but that's not always true. Remember 2002, when several TiVos thought their owners were gay? These are emotive issues and, as Forbes concludes in the article linked above, the more targeting gets good and online behavioral advertising spreads the more you have to think about what someone looking over your shoulder will see. Perhaps that's a new-economy job for 2012: the digital image consultant who knows how to game the system so the ads appearing on your personalized pages will send the "right" messages about you. Except...

It was predicted - I forget by whom - that search generally would need to incorporate social networking to make its search results more "relevant" and "personal". I can see the appeal if I'm looking for a movie to see, a book to read, or a place to travel to: why wouldn't I want to see first the recommendations of my friends, whom I trust and who likely have tastes similar to mine? But if I'm looking to understand what campaigners are saying about American hate radio (PDF), I'm more interested in the National Hispanic Media Coalition's new report than in collectively condemning Rush Limbaugh. Google Plus Search makes sense in terms of competing with Facebook and Twitter, but mix it up with the story above, and you have a bigger mess in sight. By their search results shall ye know their innermost secrets.

Besides proving Larry Lessig's point about the way campaign funding destroys our trust in our elected representatives, the Research Works Act is a terrible violation of principle. It's taken years of campaigning - by the Guardian as well as individuals pushing open standards - to get the UK government to open up its data coffers. And just at the moment when they finally do it, the US, which until now has been the model of taxpayers-paid-for-it-they-own-the-data, is thinking about going all protectionist and proprietary?

The copyright wars were always kind of ridiculous (and, says Cory Doctorow, only an opening skirmish), but there's something that's just wrong - lopsided, disproportionate, arrogant, take your pick - about a company suing a national government over it. Similarly, there's something that seems disproportionate about extraditing a British student for running a Web site on the basis that it was registered in .net, which is controlled by a US-based registry (and has now been removed from same). Granted, I'm no expert on extradition law, and must wait for either Lilian Edwards or David Allen Green to explain the details of the 2003 law. That law was and remains controversial, that much I know.

And this is only the second week. Happy new year, indeed.

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.

September 9, 2011

The final countdown

The we-thought-it-was-dead specter of copyright term extension in sound recordings has done a Diabolique maneuver and been voted alive by the European Council. In a few days, the Council of Ministers could make it EU law because, as can happen under the inscrutable government structures of the EU, opposition has melted away.

At stake is the extension of copyright in sound recordings from 50 years to 70, something the Open Rights Group has been fighting since it was born. The push to extend it above 50 years has been with us for at least five years; originally the proposal was to take it to 95 years. An extension from 50 to 70 years is modest by comparison, but given the way these things have been going over the last 50 years, that would buy the recording industry 20 years in which to lobby for the 95 years they originally wanted, and then 25 years to lobby for the line to be moved further. Why now? A great tranche of commercially popular recordings is up for entry into the public domain: Elvis Presley's earliest recordings date to 1956, and The Beatles' first album came out in 1963; their first singles are 50 years old this year. It's not long after that to all the great rock records of the 1970s.

My fellow Open Rights Group advisory council member Paul Sanders, has up a concise little analysis about what's wrong here. Basically, it's never jam today for the artists, but jam yesterday, today, and tomorrow for the recording companies. I have commented frequently on the fact that the more record companies are able to make nearly pure profit on their back catalogues whose sunk costs have long ago been paid, the more new, young artists are required to compete for their attention with an ever-expanding back catalogue. I like Sanders' language on this: "redistributive, from younger artists to older and dead ones".

In recent years, we've heard a lof of the mantra "evidence-based policy" from the UK government. So, in the interests of ensuring this evidence-based policy the UK government is so keen on, here is some. The good news is they commissioned it themselves, so it ought to carry a lot of weight with them. Right? Right.

There have been two major British government reports studying the future of copyright and intellectual property law generally in the last five years: the Gowers Review, published in 2006, and the Hargreaves report was commissioned in November 2010 and released in May 2011.

From Hargreaves:

Economic evidence is clear that the likely deadweight loss to the economy exceeds any additional incentivising effect which might result from the extension of copyright term beyond its present levels.14 This is doubly clear for retrospective extension to copyright term, given the impossibility of incentivising the creation of already existing works, or work from artists already dead.

Despite this, there are frequent proposals to increase term, such as the current proposal to extend protection for sound recordings in Europe from 50 to 70 or even 95 years. The UK Government assessment found it to be economically detrimental. An international study found term extension to have no impact on output.

And further:

Such an extension was opposed by the Gowers Review and by published studies commissioned by the European Commission.

Ah, yes, Gowers and its 54 recommendations, many or most of which have been largely ignored. (Government policy seems to have embraced "strengthening of IP rights, whether through clamping down on piracy" to the exclusion of things like "improving the balance and flexibility of IP rights to allow individuals, businesses, and institutions to use content in ways consistent with the digital age".

To Gowers:

Recommendation 3: The European Commission should retain the length of protection on sound recordings and performers' rights at 50 years.


Recommendation 4: Policy makers should adopt the principle that the term and scope of protection for IP rights should not be altered retrospectively.

I'd use the word "retroactive", myself, but the point is the same. Copyright is a contract with society: you get the right to exploit your intellectual property for some number of years, and in return after that number of years your work belongs to the society whose culture helped produce it. Trying to change an agreed contract retroactively usually requires you to show that the contract was not concluded in good faith, or that someone is in breach. Neither of those situations applies here, and I don't think these large companies with their in-house lawyers, many of whom participated in drafting prior copyright law, can realistically argue that they didn't understand the provisions. Of course, this recommendation cuts both ways: if we can't put Elvis's earliest recordings back into copyright, thereby robbing the public domain, we also can't shorten the copyright protection that applies to recordings created with the promise of 50 years' worth of protection.

This whole mess is a fine example of policy laundering: shopping the thing around until you either wear out the opposition or find sufficient champions. The EU, with its Hampton Court maze of interrelated institutions, could have been deliberately designed to facilitate this. You can write to your MP, or even your MEP - but the sad fact is that the shiny, new EU government is doing all this in old-style backroom deals.

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.

May 6, 2011

Double exposure

So finally we know. Ever since Wikileaks began releasing diplomatic cables copyright activists have been waiting to see if the trove would expose undue influence on national laws. And this week there it was: a 2005 cable from the US Embassy in New Zealand requesting $386,158 to fund start-up costs and the first year of an industry-backed intellectual property enforcement unit and a 2009 cable offering "help" when New Zealand was considering a "three-strikes" law. Much, much more on this story has been presented and analyzed by the excellent Michael Geist, who also notes similar US lobbying pressure on Canada to "improve" its "lax" copyright laws.

My favorite is this bit, excerpted from the cable recounting an April 2007 meeting between Embassy officials and Geist himself:

His acknowledgement that Canada is a net importer of copyrighted materials helps explain the advantage he would like to hold on to with a weaker Canadian UPR protection regime. His unvoiced bias against the (primarily U.S. based) entertainment industry also reflects deeply ingrained Canadian preferences to protect and nurture homegrown artists.

In other words, Geist's disagreement with US copyright laws is due to nationalist bias, rather than deeply held principles. I wonder how they explain to themselves the very similar views of such diverse Americans as Macarthur award winner Pamela Samuelson, John Perry Barlow, Lawrence Lessig. The latter in fact got so angry over the US's legislative expansion of copyright that he founded a movement for Congressional reform, expanding to a Harvard Law School center to research broader questions of ethics.

It's often said that a significant flaw in the US Constitution is that it didn't - couldn't, because they didn't exist yet - take account of the development of multinational corporations. They have, of course, to answer to financial regulations, legal obligations covering health and safety, and public opinion, but in many areas concerning the practice of democracy there is very little to rein those in. They can limit their employees' freedom of speech, for example, without ever falling afoul of the First Amendment, which, contrary to often-expressed popular belief, limits only the power of Congress in this area.

There is also, as Lessig pointed out in his first book, Code: and Other Laws of Cyberspace, no way to stop private companies from making and implementing technological decisions that may have anti-democratic effects. Lessig's example at the time was AOL, which hard-coded a limit of 23 participants per chat channel; try staging a mass protest under those limits. Today's better example might be Facebook, which last week was accused of unfairly deleting the profiles of 51 anti-cuts groups and activists. (My personal guess is that Facebook's claim to have simply followed its own rules is legitimate; the better question might be who supplied Facebook with the list of profiles and why.) Whether or not Facebook is blameless on this occasion, there remains a legitimate question: at what point does a social network become so vital a part of public life that the rules it implements and the technological decisions it makes become matters of public policy rather than questions for it to consider on its own? Facebook, like almost all of the biggest Internet companies, is a US corporation, with its mores and internal culture largely shaped by its home country.

We have often accused large corporate rights holders of being the reason why we see the same proposals for tightening and extending copyright popping up all over the world in countries whose values differ greatly and whose own national interests are not necessarily best served by passing such laws. More recently written constitutions could consider such influences. To the best of my knowledge they haven't, although arguably this is less of an issue in places that aren't headquarters to so many of them and where they are therefore less likely to spend large amounts backing governments likely to be sympathetic to their interests.

What Wikileaks has exposed instead is the unpleasant specter of the US, which likes to think of itself as spreading democracy around the world, behaving internationally in a profoundly anti-democratic way. I suppose we can only be grateful they haven't sent Geist and other non-US copyright reform campaigners exploding cigars. Change Congress, indeed: what about changing the State Department?

It's my personal belief that the US is being short-sighted in pursuing these copyright policies. Yes, the US is currently the world's biggest exporter of intellectual property, especially in, but not limited to, the area of entertainment. But that doesn't mean it always will be. It is foolish to think that down the echoing corridors of time (to borrow a phrase from Jean Kerr) the US will never become a net importer of intellectual property. It is sheer fantasy - even racism - to imagine that other countries cannot write innovative software that Americans want to use or produce entertainment that Americans want to enjoy. Even if you dispute the arguments made by campaigning organizations such as the Electronic Frontier Foundation and the Open Rights Group that laws like "three strikes" unfairly damage the general public, it seems profoundly stupid to assume that the US will always enjoy the intellectual property hegemony it has now.

One of these days, the US policies exposed in these cables are going to bite it in the ass.

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.

April 8, 2011

Brought to book

JK Rowling is seriously considering releasing the Harry Potter novels as ebooks, while Amanda Hocking, who's sold a million or so ebooks has signed a $2 million contract with St. Martin's Press. In the same week. It's hard not to conclude that ebooks are finally coming of age.

And in many ways this is a good thing. The economy surrounding the Kindle, Barnes and Noble's Nook, and other such devices is allowing more than one writer to find an audience for works that mainstream publishers might have ignored. I do think hard work and talent will usually out, and it's hard to believe that Hocking would not have found herself a good career as a writer via the usual routine of looking for agents and publishers. She would very likely have many fewer books published at this point, and probably wouldn't be in possession of the $2 million it's estimated she's made from ebook sales.

On the other hand, assuming she had made at least a couple of book sales by now, she might be much more famous: her blog posting explaining her decision notes that a key factor is that she gets a steady stream of complaints from would-be readers that they can't buy her books in stores. She expects to lose money on the St. Martin's deal compared to what she'd make from self-publishing the same titles. To fans of disintermediation, of doing away with gatekeepers and middle men and allowing artists to control their own fates and interact directly with their audiences, Hocking is a self-made hero.

And yet...the future of ebooks may not be so simply rosy.

This might be the moment to stop and suggest reading a little background on book publishing from the smartest author I know on the topic, science fiction writer Charlie Stross. In a series of blog postings he's covered common misconceptions about publishing, why the Kindle's 2009 UK launch was bad news for writers, and misconceptions about ebooks. One of Stross's central points: epublishing platforms are not owned by publishers but by consumer electronics companies - Apple, Sony, Amazon.

If there's one thing we know about the Net and electronic media generally it's that when the audience for any particular new medium - Usenet, email, blogs, social networks - gets to be a certain size it attracts abuse. It's for this reason that every so often I argue that the Internet does not scale well.

In a fascinating posting on Patrick and Theresa Nielsen-Hayden's blog Making Light, Jim Macdonald notes the case of Canadian author S K S Perry, who has been blogging on LiveJournal about his travails with a thief. Perry, having had no luck finding a publisher for his novel Darkside, had posted it for free on his Web site, where a thief copied it and issued a Kindle edition. Macdonald links this sorry tale (which seems now to have reached a happy-enough ending) with postings from Laura Hazard Owen and Mike Essex that predict a near future in which we are awash in recycled ebook...spam. As all three of these writers point out, there is no system in place to do the kind of copyright/plagiarism checking that many schools have implemented. The costs are low; the potential for recycling content vast; and the ease of gaming the ratings system extraordinary. And either way, the ebook retailer makes money.

Macdonald's posting primarily considers this future with respect to the challenge for authors to be successful*: how will good books find audiences if they're tiny islands adrift in a sea of similar-sounding knock-offs and crap? A situation like that could send us all scurrying back into the arms of people who publish on paper. That wouldn't bother Amazon-the-bookseller; Apple and others without a stake in paper publishing are likely to care more (and promising authors and readers due care and diligence might help them build a better, differentiated ebook business).

There is a mythology that those who - like the Electronic Frontier Foundation or the Open Rights Group - oppose the extension and tightening of copyright are against copyright. This is not the case: very few people want to do away with copyright altogether. What most campaigners in this area want is a fairer deal for all concerned.

This week the issue of term extension for sound recordings in the EU revived when Denmark changed tack and announced it would support the proposals. It's long been my contention that musicians would be better served by changes in the law that would eliminate some of the less fair terms of typical contracts, that would provide for the reversion of rights to musicians when their music goes out of commercial availability, and that would alter the balance of power, even if only slightly, in favor of the musicians.

This dystopian projected future for ebooks is a similar case. It is possible to be for paying artists and even publishers and still be against the imposition of DRM and the demonization of new technologies. This moment, where ebooks are starting to kick into high gear, is the time to find better ways to help authors.

*Successful: an author who makes enough money from writing books to continue writing books.

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.

April 1, 2011

Equal access

It is very, very difficult to understand the reasoning behind the not-so-secret plan to institute Web blocking. In a to the Open Rights Group, Ed Vaizey, the minister for culture, communications, and creative industries, confirmed that such a proposal emerged from a workshop to discuss "developing new ways for people to access content online". (Orwell would be so proud.)

We fire up Yes, Minister once again to remind everyone the four characteristics of proposals ministers like: quick, simple, popular, cheap. Providing the underpinnings of Web site blocking is not likely to be very quick, and it's debatable whether it will be cheap. But it certainly sounds simple, and although it's almost certainly not going to be popular among the 7 million people the government claims engage in illegal file-sharing - a number PC Pro has done a nice job of dissecting - it's likely to be popular with the people Vaizey seems to care most about, rights holders.

The four opposing kiss-of-death words are: lengthy, complicated, expensive, and either courageous or controversial, depending how soon the election is. How to convince Vaizey that it's these four words that apply and not the other four?

Well, for one thing, it's not going to be simple, it's going to be complicated. Web site blocking is essentially a security measure. You have decided that you don't want people to have access to a particular source of data, and so you block their access. Security is, as we know, not easy to implement and not easy to maintain. Security, as Bruce Schneier keeps saying, is a process, not a product. It takes a whole organization to implement the much more narrowly defined IWF system. What kind of infrastructure will be required to support the maintenance and implementation of a block list to cover copyright infringement? Self-regulatory, you say? Where will the block list, currently thought to be about 100 sites come from? Who will maintain it? Who will oversee it to ensure that it doesn't include "innocent" sites? ISPs have other things to do, and other than limiting or charging for the bandwidth consumption of their heaviest users (who are not all file sharers by any stretch) they don't have a dog in this race. Who bears the legal liability for mistakes?

The list is most likely to originate with rights holders, who, because they have shown over most of the last 20 years that they care relatively little if they scoop innocent users and sites into the net alongside infringing ones, no one trusts to be accurate. Don't the courts have better things to do than adjudicate what percentage of a given site's traffic is copyright-infringing and whether it should be on a block list? Is this what we should be spending money on in a time of austerity? Mightn't it be...expensive?

Making the whole thing even more complicated is the obvious (to anyone who knows the Internet) fact that such a block list will - according to Torrentfreak already has - start a new arms race.

And yet another wrinkle: among blocking targets are cyberlockers. And yet this is a service that, like search, is going mainstream: has just launched such a service, which it calls Cloud Drive and for which it retains the right to police rather thoroughly. Encrypted files, here we come.

At least one ISP has already called the whole idea expensive, ineffective, and rife with unintended consequences.

There are other obvious arguments, of course. It opens the way to censorship. It penalizes innocent uses of technology as well as infringing ones; torrent search sites typically have a mass of varied material and there are legitimate reasons to use torrenting technology to distribute large files. It will tend to add to calls to spy on Internet users in more intrusive ways (as Web blocking fails to stop the next generation of file-sharing technologies). It will tend to favor large (often American) services and companies over smaller ones. Google, as IsoHunt told the US Court of Appeals two weeks ago, is the largest torrent search engine. (And, of course, Google has other copyright troubles of its own; last week the court rejected the Google Books settlement.)

But the sad fact is that although these arguments are important they're not a good fit if the main push behind Web blocking is an entrenched belief that only way to secure economic growth is to extend and tighten copyright while restricting access to technologies and sites that might be used for infringement. Instead, we need to show that this entrenched belief is wrong.

We do not block the roads leading to car boot sales just because sometimes people sell things at them whose provenance is cloudy (at best). We do not place levies on the purchase of musical instruments because someone might play copyrighted music on them. We should not remake the Internet - a medium to benefit all of society - to serve the interests of one industrial group. It would make more sense to put the same energy and financial resources into supporting the games industry which, as Tom Watson (Lab - Bromwich) has pointed out has great potential to lift the British economy.

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.

January 28, 2011


"You don't need this old math work," said my eighth grade geography teacher, paging through my loose-leaf notebook while I watched resentfully. It was 1967, the math work was no more than a couple of months old, and she was ahead of her time. She was an early prototype of that strange, new species littering the media these days: the declutterer.

People like her - they say "professional organizer", I say bully - seem to be everywhere. Their sudden visibility is probably due, at least in part, to the success of the US TV series Hoarders, in which mentally disordered people are forced to confront their pathological addiction to keeping and/or acquiring so much stuff that their houses are impassable, often hazardous. Of course, one person's pathological hoarder is another's more-or-less normal slob, packrat, serious collector, or disorganized procrastinator. Still, Newsweek's study of kids who are stuck with the clean-up after their hoarder parents die is decidedly sad.

But much of what I'm reading seems aimed at perfectly normal people who are being targeted with all the zealotry of an early riser insisting that late sleepers and insomniacs are lazy, immoral slugs who need to be reformed.

Some samples. LifeHacker profiles a book to help you estimate how much your clutter is costing you. The latest middle-class fear is that schools' obsession with art work will turn children into hoarders. The New York Times profiles a professional declutterer who has so little sympathy for attachment to stuff that she tosses out her children's party favors after 24 hours. At least she admits she's neurotic, and is just happy she's made it profitable to the tune of $150 an hour (well, Manhattan prices).

But take this comment from LifeHacker:

For example, look in your bedroom and consider the cost of unworn clothes and shoes, unread books, unworn jewelry, or unused makeup.

And this, from the Newsweek piece:

While he's thrown out, recycled, and donated years' worth of clothing, costume jewelry, and obvious trash, he's also kept a lot--including an envelope of clothing tags from items [his mother] bought him in 1972, hundreds of vinyl records, and an outdated tape recorder with corroded batteries leaking out the back.

OK, with her on the corroded batteries. (What does she mean, outdated? If it still functions for its intended purpose it's just old.) Little less sure about the clothing tags, which might evoke memories. But unread books? Unless you're talking 436 copies of The DaVinci Code, unread books aren't clutter. Unread books are mental food. They are promises of unknown worlds on a rainy day when the electricity goes bang. They are cultural heritage. Ditto vinyl records. Not all books and LPs are equally valuable, of course, but they should be presumed innocent until proven to be copies of Jeffrey Archer novels. Books are not shoeboxes marked "Pieces of string - too small to save".

Leaving aside my natural defensiveness at the suggestion that thousands of books, CDs, DVDs, and vinyl LPs are "clutter", it strikes me that one reason for this trend is that there is a generational shift taking place. Anyone born before about 1970 grew up knowing that the things they liked might become unavailable at any time. TV shows were broadcast once, books and records went out of print, and the sweater that sold out while you were saving up for it didn't reappear later on eBay. If you had any intellectual or artistic aspirations, building your own library was practically a necessity.

My generation also grew up making and fixing things: we have tools. (A couple of years ago I asked a pair of 20-somethings for a soldering iron; they stared as if I'd asked for a manual typewriter.) Plus, in the process of rebelling against our parents' largely cautious and thrifty lifestyles, Baby Boomers were the first to really exploit consumer credit. Put it together: endemic belief that the availability of any particular item was only temporary, unprecedented array of goods to choose from, extraordinary access to funding. The result: stuff.

To today's economically stressed-out younger generation, raised on reruns and computer storage, the physical manifestations of intellectual property must seem peculiarly unnecessary. Why bother when you can just go online and click a button? One of my 50-something writer friends loves this new world; he gives away or sells books as soon as he's read them, and buys them back used from Amazon or Alibris if he needs to consult them again. Except for the "buying it used" part, this is a business model the copyright industries ought to love, because you can keep selling the same thing over and over again to the same people. Essentially, it's rental, which means it may eventually be an even better business than changing the media format every decade or two so that people have to buy new copies. When 3D printers really get going, I imagine there will be people arguing that you really don't need to keep furniture around - just print it when you need it. Then the truly modern home environment will be just a bare floor and walls. If you want to live like that, fine, but on behalf of my home libraries, I say: ick.

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.

December 17, 2010

Sharing values

And then they came for Google...

The notion that the copyright industries' war on file-sharing would eventually rise to the Google level of abstraction used to be a sort of joke. It was the kind of thing the owners of torrent search sites (and before them, LimeWire and Gnutella nodes) said as an extreme way of showing how silly the whole idea was that file-sharing could be stamped out by suing people. It was the equivalent in airport terms of saying, "What are they going to do? Have us all fly naked?"

This week, it came true. You can see why: the British Phonographic Institute's annual report cites research it commissioned from Harris Interactive showing that 58 percent of "illegal downloaders" used Google to find free music. (Of course, all free music is not unauthorized copies of music, but we'll get to that in a minute.)

The rise of Google in particular (it has something like 90 percent of the UK market, somewhat less in the US) and search engines in general as the main gateway through which people access the Internet made it I think inevitable that at some point the company would become a focus for the music industry. And Google is responding, announcing on December 2 that it would favor authorized content in its search listings and remove prevent "terms closely related with piracy" from appearing in AutoComplete.

Is this censorship? Perhaps, but I find it hard to get too excited about, partly because Autocomplete is the annoying boor who's always finishing my sentences wrongly, partly because having to type "torrent" doesn't seem like much of a hardship, and partly because I don't believe this action will make much of a difference. Still, as Google's design shifts more toward the mass market, such subtle changes will create ever-larger effects.

I would be profoundly against demonizing file-sharing technology by making it technically impossible to use Google to find torrent/cyber locker/forum sites - because such sites are used for many other things that have nothing to do with distributing music - but that's not what's being talked about here. It's worth noting, however, that this is (yet another) example of Google's double standards when it comes to copyright. Obliging the music industry's request costs them very little and also creates the opportunity to nudge its own YouTube a little further up the listings. Compare and contrast, however, to the company's protracted legal battle over its having digitized and made publicly available millions of books without the consent of the rights holders.

If I were the music industry I think I'd be generally encouraged by the BPI's report. It shows that paid, authorized downloads are really beginning to take off; digital now accounts for nearly 25 percent of UK record industry revenues. Harris Interactive found that approximately 7.7 million people in the UK continue to download music "illegally". Jupiter Research estimated the foregone revenues at £219 million. The BPI's arithmetic estimates that paid, authorized downloads represent about a quarter of all downloads. Seems to me that's all moving in the right direction - without, mind you, assistance from the draconian Digital Economy Act.

The report also notes the rise of unauthorized, low-cost pay sites that siphon traffic away from authorized pay services. These are, to my view, the equivalent of selling counterfeit CDs, and I have no problem with regarding them as legitimately lost sales or seeing them shut down.

Is the BPI's glass half-empty or half-full? I think it's filling up, just like we told them it would. They are progressively competing successfully with free, and they'd be a lot further along that path if they had started sooner.

As a former full-time musician with many friends still in the trade, it's hard to argue that encouraging people towards services that pay the artist at the expense of those that don't is a bad principle. What I really care about is that it should be as easy to find Andy Cohen playing "Oh, Glory" as it is to find Lady Gaga singing anything. And that's an area where the Internet is the best hope for parity we've ever had; as a folksinger friend of mine said a couple of years back, "The music business never did anything for us."

I've been visiting Cohen this week, and he's been explicating the German sociologist Ferdinand Tönnies' structure, with the music business as gesellschaft (society) versus folk music as community (gemeinschaft)

"Society has rules, communities have customs," he said last night. "When a dispute over customs has to be adjudicated, that's the border of society." Playing music for money comes under society's rules - that is, copyright. But for Cohen, a professional musician for more than 40 years with multiple CDs, music is community.

We've been driving around Memphis visiting his friends, all of whom play themselves, some easily, some with difficulty. Music is as much a part of their active lives as breathing. This is a fundamental disconnect from the music industry, which sees us all as consumers and every unpaid experience of music as a lost sale, This is what "sharing music" really means: playing and singing together - wherever.

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.

August 13, 2010

Pirate flags

Wednesday's Future Human - The Piracy Panacea event missed out on a few topics, among them network neutrality, an issue I think underlies many net.wars debates: content control, privacy, security. The Google-Verizon proposals sparked much online discussion this week. I can only reiterate my belief that net neutrality should be seen as an anti-trust issue. A basic principle of anti-trust law (Standard Oil, the movie studios) is that content owners should not be allowed to own the means of distribution, and I think this readily applies to cable companies that own TV stations and telephone companies that are carriers for other people's voice services.

But the Future Human event was extraordinary enough without that. Imagine: more than 150 people squished into a hot, noisy pub, all passionately interested in...copyright! It's only a few years ago that entire intellectual property law school classes would fit inside a broom cupboard. The event's key question: does today's "piracy" point the way to future innovation?

The basis of that notion seemed to be that historically pirates have forced large imperial powers to change and weren't just criminals. The event's light-speed introduction whizzed through functionally democratic pirate communities and pirate radio, and a potted history of authorship from Shakespeare and Newton to Lady Gaga. There followed mock trials of a series of escalating copyright infringements in which it became clear that the audience was polarized and more or less evenly divided.

There followed our panel: me, theoretically representing the Open Rights Group; Graham Linehan, creator of Father Ted and The IT Crowd; Jamie King, writer and director of Steal This Film; and economist Thierry Rayna. Challenged, of course, by arguers from the audience, one of whom declined to give her affiliation on the grounds that she'd get lynched (I doubt this). Partway through the panel someone complained on Twitter that we weren't answering the question the event had promised to tackle: how can the creative industries build on file-sharing and social networks to create the business models of the future?

It seems worth trying to answer that now.

First, though, I think it's important to point out that I don't think there's much that's innovative about downloading a TV show or MP3. The people engaged in downloading unauthorized copies of mainstream video/audio, I think, are not doing anything particularly brave. The people on the front lines are the ones running search engines and services. These people are indeed innovators, and some of them are doing it at substantial personal risk. And they cannot, in general, get legal licenses from rights holders, a situation that could be easily changed by the rights holders. Napster, which kicked the copyright wars into high gear and made digital downloads a mainstream distribution method, is now ten years ago. Yet rights holders are still trying to implement artificial scarcity (to replace real scarcity) and artificial geography (to replace real geography). The death of distance, as Economist writer Frances Cairncross called it in 1997, changes everything, and trying to pretend it doesn't is absurd. The download market has been created by everyone *but* the record companies, who should have benefited most.

Social networks - including the much-demonized P2P networks - provide the greatest mechanism for word of mouth in the history of human culture. And, as we all know, word of mouth is the most successful marketing available, at least for entertainment.

It also seems obvious that P2P and social networks are a way for companies to gauge the audience better before investing huge sums. It was obvious from day one, for example, that despite early low official ratings and mixed reviews, Gossip Girl was a hit. Why? Because tens of thousands of people were downloading it the instant it came online after broadcast. Shouldn't production company accountants be all over this? Use these things as a testbed instead of having the fall pilots guessed on by a handful of the geniuses who commissioned Cavemen and the US version of Coupling and cancelled Better Off Ted. They could have a lot clearer picture of what kind of audience a show might find and how quickly.

Trying to kill P2P and other technologies just makes them respawn like the Hydra. The death of Napster (central server) begat Gnutella and eDonkey (central indexes), lawsuits against whose software developers begat the even more decentralized BitTorrent. When millions and tens of millions of people are flocking to a new technology rights holders should be there, too.

The real threat is always going to be artists taking their business into their own hands. For every Lady Gaga there are thousands of artists who, given some basic help can turn their work into the kind of living wage that allows them to pursue their art full-time and professionally. I would think there is a real business in providing these artists with services - folksingers, who've never had this kind of help, have produced their own recordings for decades, and having done it myself I can tell you it's not easy. This was the impulse behind the foundation of CDBaby, and now of Jamie King's VoDo. In the long run, things like this are the real game-changers.

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.

July 30, 2010

Three-legged race

"If you are going to do this damn silly thing, don't do it in this damn silly way," Sir Humphrey Appleby tells Jim Hacker in a fit of unaccustomed straight talking.

We think of this often these days, largely because it seems as though lawmakers, having been belittled by impatient and malcontent geeks throughout the 1990s for being too slow to keep up with Internet time, are trying to speed through the process of creating legislation by eliminating thought, deliberation, and careful drafting. You can see why they'd want to get rid of so many civil servants, who might slow this process down.

In that particular episode of Yes, Minister, "The Writing on the Wall" (S1e05), Appleby and Hacker butt heads over who will get the final say over the wording of a draft proposal on phased Civil Service reductions (today's civil servants and ministers might want to watch episode S1e03, "The Economy Drive", for what their lives will soon be like). Hacker wins that part of the battle only to discover that his version, if implemented, will shut down his own department. Oops.

Much of the Digital Economy Act (2010) was like this: redrafted at the last minute in all sorts of unhelpful ways. But the devil is always in the details, and it was not unreasonable to hope that Ofcom, charging with defining and consulting on those details, would operate in a more measured fashion. But apparently not, and so we have a draft code of practice that's so incomplete that it could be a teenager's homework.

Both Consumer Focus and the Open Rights Group have analyses of the code's non-compliance with the act and a helpful <"a href=">online form should you wish to submit your opinions. The consultation closes today, so run, do not walk, to add your comments.

What's more notable is when it opened: May 28, only three days after the State Opening of the post-election parliamentary session, three weeks after the election, and six weeks after the day that Gordon Brown called the election. Granted, civil servants do not down pencils while the election is proceeding. But given that the act went through last-second changes and then was nodded through the House of Commons in the frantic dash to get home to start campaigning, the most time Ofcom can have had to draft this mish-mash was about six weeks. Which may explain the holes and inadequacies, but then you have to ask: why didn't they take their time and do it properly?

The Freedom bill, which is to repeal so many of the items on our wish list, is mute on the subject of the Digital Economy Act, despite a number of appearances on the Freedom bill's ideas site. (Big Brother Watch has some additional wish list items.)

The big difficulty for anyone who hates the copyright protectionist provisions in the act - the threat to open wi-fi, the disconnection or speed-limitation of Internet access ("technical measures") to be applied to anyone who is accused of copyright infringement three times ("three-strikes", or HADOPI, after the failed French law attempting to do the same) - is that what you really want is for the act to go away. Preferably back where it came from, some copyright industry lobbyist's brain. A carefully drafted code of practice that pays attention to ensuring that the evidentiary burden on copyright holders is strong enough to deter the kind of abuse seen in the US since the passage of the Digital Millennium Copyright Act (1998) is still not a good scenario, merely a least-worst one.

Still, ORG and Consumer Focus are not alone in their unhappiness. BT and TalkTalk have expressed their opposition, though for different reasons. TalkTalk is largely opposed to the whole letter-writing and copyright infringement elements; but both ISPs are unhappy about Ofcom's decision to limit the code to fixed-line ISPs with more than 400,000 customers. In the entire UK, there are only seven: TalkTalk, BT, Post Office, Virgin, Sky, Orange, and O2. Yet it makes sense to exclude mobile ISPs for now: at today's prices it's safe to guess that no one spends a lot of time downloading music over them. For the rest...these ISPs can only benefit if unauthorised downloading on their services decreases, don't all ISPs want the heaviest downloaders to leech off someone else's service?

LINX, the largest membership organisation for UK Internet service providers has also objected (PDF) to the Act's apportionment of costs: ISPs, LINX's Malcolm Hutty argues, are innocent third parties, so rather than sharing the costs of writing letters and retaining the data necessary to create copyright infringement reports ISPs should be reimbursed for not only the entire cost of implementing the necessary systems but also opportunity costs. It's unclear, LINX points out, how much change Ofcom has time to make to the draft code and still meet its statutory timetable.

So this is law on Internet time: drafted for, if not by, special interests, undemocratically rushed through Parliament, hastily written, poorly thought-out, unfairly and inequitably implemented in direct opposition to the country's longstanding commitment to digital inclusion. Surely we can do better.

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.

July 16, 2010

Music tax

According to various press write-ups Music Education in the 21st Century in the United Kingdom, published yesterday, worries that older forms of music like brass bands, classical, and folk music could become extinct. Despite the fact that you can put any kind of music you want on an iPod, kids just aren't hearing anything but pop, rock, hip-hop, and rap.

This is in the same week that the Performing Rights Society for Music released a paper proposing to levy fees on ISPs in proportion to the amount of copyrighted material being illegally downloaded via their networks.

These are connected issues.

There are so many problems with the "music tax" proposal that you barely know where to start. The paper describes ISPs as "next-generation broadcasters" and unlicensed media consumption as providing value to ISPs; and proposes using Detica's deep packet inspection to analyze traffic and track "plausibly illicit file sharing".

ISPs are infrastructure providers. A few, mostly cable companies, are broadcasters - Virgin in the UK and Comcast in the US - whose core business is providing TV. But most are phone companies, landline or mobile - BT, Verizon, Vodafone, T-Mobile. To ISPs serving the mass market heavy downloaders who soak up their bandwidth are pariahs who don't pay proportionately for their usage. Finally, the belief that it's easy to tell identify illicit data streams is laughable.

And that's without considering the civil liberties implications of having a private company snoop on everyone's downloads at the behest of a single industry sector.

But we've been through what's wrong with this type of proposal before. What may not be obvious is the connection between the decay we began with of older musical forms and the enactment of policies that make the recording industry happy. Brass band music varies considerably in its provenance, but if there's one thing almost all classical music and traditional folk music have in common besides holding an important place in British cultural heritage it's this: they're out of copyright. Policies enacted at the behest of the copyright industries - for example the Digital Economy Act (which BT and TalkTalk| want to challenge, by the way) - do nothing for these types of music and their performers.

The 2003 Licensing Act brought in a requirement for pubs and other locations that have long hosted small music events to get entertainment licenses. The upshot: it's easier and cheaper for pubs to have a television or recorded music playing than it is to allow live musicians to sit in a corner and play folk music, even though acoustic music is typically less likely to annoy the neighbors with noise overspill. There have been consultationsa bout changing this and there is currently a bill in the House of Lords, but in the meantime dozens of small folk clubs and acoustic sessions have ended for lack of a welcoming venue. Most of those could have been saved by the exemptions proposed in the bill: audiences of under 200, acoustic music only, ending before midnight, and so on. These issues have been much discussed on the Usenet newsgroup, and the Live Music Forum delivered a petition with 17,000 signatures to number 10 Downing Street on July 8.

It's particularly ironic that this has happened at a time when the folk scene has had the best influx of energizing young performers for several decades: John Spiers and Jon Boden, Bellowhead, Faustus, the Emily and Hazel Askew, and many others (as a general rule, anything involving Tim Van Eyken is good). These are fresh, high-energy reinterpretations of English folk music created by superb, passionate musicians, not at all the dying, airless flatness of academia some might imagine. The fact that most folk performers consider a turnout of 200 a great night doesn't mean they're - it is to laugh! - less competent than Lady Gaga.

But a lot of the point of folk music - like the open-source software movement - is that it's participatory (If you can sing, then you can write a song, sings my friend Bill Steele, writer of "Garbage!", the song made famous by Pete Seeger). Music, like sports, software coding, and scientific exploration, is something that people need to believe they can do themselves - and of all the genres folk is probably the most accessible in that regard. It would certainly suit the recording business for music to become a black box like a mobile phone or a game console, something people pay to use without looking inside it. But society as a whole would be poorer for it. Government and education should be encouraging kids to play, learn, and experiment, to be fellow creators, not consumers.

So, Messrs Cameron and Clegg: if you want to do something for music and musicians, amend the Licensing Act to encourage live performance by live musicians in small venues. Amend contract law so that musicians aren't forced into giving away all rights in perpetuity with no reversion. Require the new owners of failed record labels to pay royalties on the back catalogues they've acquired instead of allowing them to take the assets and dump the liabilities. Music is bigger than just those four big labels, y'know.

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.

February 5, 2010

Getting run down on the infobahn

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 ( 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.

January 22, 2010

Music night

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.
So: digital music is ramping up (mostly through the efforts of non-music industry companies and investors). Investment in local acts and new musicians is down. And overall sales are down. And we're blaming file-sharing? How about blaming at least the last year or so of declining revenues on the recession? How about blaming bean counters at record companies who see a higher profit margin in selling yet more copies of back catalogue tried-and-tested, pure-profit standards like Frank Sinatra and Elvis Presley than in taking risks on new music? At some point, won't everyone have all the copies of the Beatles albums they can possibly use? Er, excuse me, "consume". (The report has a disturbing tendency to talk about "consuming" music; I don't think people have the same relationship with music that they do with food. I'd also question IFPI's whine about live music revenues: all young artists start by playing live gigs, that's how they learn; *radio play* gets audiences in; live gigs *and radio play* sell albums, which help sell live gigs in a virtuous circle, but that's a topic for another day.)

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

November 20, 2009

Thou shalt not steal

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

October 9, 2009

Phantom tollbooths

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

September 11, 2009

Public broadcasting

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

August 28, 2009

Develop in haste, lose the election at leisure

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

August 21, 2009

This means law

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

June 26, 2009

Pass the policy

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 (but please turn off HTML).

May 29, 2009

Three blind governments

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 (but please turn off HTML).

April 24, 2009

The way we were

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 (but please turn off HTML).

April 17, 2009

I think we're all pirates on this bus

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 (but please turn off HTML).

April 3, 2009

Copyright encounters of the third dimension

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?

Update (1/26/2012): Simon Bradshaw's paper is now published here.

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 (but please turn off HTML).

March 6, 2009

The camcorder conundrum

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 (but please turn off HTML).

February 20, 2009

Control freaks

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 (but please turn off HTML).

February 6, 2009

Forty-five years

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 (but please turn off HTML).

January 30, 2009

Looking backward

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 (but please turn off HTML).

November 14, 2008

The USB stick in the men's room

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 | | Comments (0) | TrackBacks (0)

September 26, 2008

Wimsey's whimsy

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 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 (but please turn off HTML).

September 5, 2008

Return of the browser wars

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 (but please turn off HTML).

August 29, 2008


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 (but please turn off HTML).

August 22, 2008

Intimate exchanges

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 (but please turn off HTML).

August 15, 2008

License to kill

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 Artistic License, an older and less-well known one of the free licenses (it isn't one of the Free Software Foundation's approved licenses, though its successor, Artistic License 2.0, is). Matthew Katzer and Kamind, aka KAM Industries sells a functionally similar commercial product that, crucially, Jacobsen claims is based on downloaded portions of JMRI. The Artistic License requires attribution, copyright notices, references to the file listing copyright terms, identification of the source of the downloaded files, and a description of the changes made by the new distributor. None of these conditions were met, and accordingly Jacobsen moved for a preliminary injunction on the basis of copyright infringement. The District Court denied the motion on the grounds that the license is "intentionally broad", and argued that violating 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 (but please turn off HTML).

August 8, 2008

Broadcast of the Rings

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 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.) 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 (but please turn off HTML).

July 18, 2008


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 (but please turn off HTML).

March 21, 2008


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 (but please turn off HTML).

February 22, 2008


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 (but please turn off HTML).

January 18, 2008

Harmony, where is thy sting?

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 (but please turn off HTML).

November 3, 2007

Amateur hour

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 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 (but please turn off HTML).

August 24, 2007

Game gods

Virtual worlds have been with us for a long time. Depending who you listen to, they began in 1979, or 1982, or it may have been the shadows on the walls of Plato's cave. We'll go with the University of Essex MUD, on the grounds that its co-writer Richard Bartle can trace its direct influence on today's worlds.

At State of Play this week, it was clear that just as the issues surrounding the Internet in general have changed very little since about 1988, neither have the issues surrounding virtual worlds.

True, the stakes are higher now and, as Professor Yee Fen Lim noted, when real money starts to be involved people become protective.

Level 70 warrior accounts on World of Warcraft go for as little as $10 (though your level number cannot disguise your complete newbieness), but the unique magic sword you won in a quest may go for much more. The best-known pending case is Bragg versus Second Life over virtual property the world's owners confiscated when they realized that Bragg was taking advantage of a loophole in their system to buy "land" at exceptionally cheap prices. Lim had an interesting take on the Bragg case: as a legal concept, she argued, property is right of control, even though Linden Labs itself defines its virtual property as rental of a processor. As computer science that's fine, but it's not law. Otherwise, she said, "Property is mere illusion."

Ultimately, the issues all come down to this: who owns the user experience? In subscription gaming worlds, the owners tend to keep very tight control of everything – they claim ownership in all intellectual property in the world, limit users' ability to create their own content, and block the sale of cheats as much as possible. In a free-form world like Second Life which may host games but is itself a platform rather than a game, users are much freer to do what they want but the EULAs or Terms of Service may be just as unfair.

Ultimately, no matter what the agreement says, today's privately owned virtual worlds all function under the same reality: the game gods can pull the plug at any time. They own and control the servers. Possession is nine-tenths of the law, and all that. Until someone implements open source world software on a P2P platform, this will always be the way. Linden Labs says, for what it's worth, that its long-term intention is to open-source its platform so that anyone may set up a world. This, too, has been done before, with The Palace.

One consequence of this is that there is no such thing as virtual privacy, a topic that everyone is aware of but no one's talking about. The piecemeal nature of the Net means that your friend's IRC channel doesn't know anything about your Web use, and doesn't track what you do on eBay. But virtual worlds log everything. If you buy a new shirt at a shop and then fly to a distant island to have sex with it, all that is logged. (Just try to ensure the shirt doesn't look like a child's shirt and you don't get into litigation over who owns the island…)

There are, as scholars say, legitimate reasons. Logging everything that happens is important in helping game developers pinpoint the source of crashes and eliminate bugs. Logs help settle disputes over who did what to whose magic sword. And in a court case, they may be important evidence (although how you can ensure that the logs haven't been adjusted to suit the virtual world provider, who is usually one of the parties to the litigation, I don't know).

As long as you think of virtual worlds as games, maybe this isn't that big a problem. After all, no one is forced to spend half their waking hours killing enough monsters in World of Warcraft to join a guild for a six-hour quest.

But something like Second Life aspires to be a lot more than that. The world is adding voice communication, which will be interesting: if you have to use your real voice, the relative anonymity conferred by the synthetic world are gone. Quite apart from bandwidth demands (lag is the bane of every SLer's existence), exploring what virtual life is like in the opposite gender isn't going to work. They're going to need voice synthesizers.

Much of the law in this area is coming out of Asia, where massively multi-player online games took off so early with such ferocity that, according to Judge Unggi Yoon, in a recent case a member of a losing team in one such game ran to the café where the winning team was playing and physically battered one of its members. Yoon, who explained some of the new laws, is an experienced online gamer, all the way back to playing Ultima Online in middle school. In his country, a law has recently come into force taxing virtual world transactions (it works like a VAT threshold – under $100 a month you don't owe anything). For Westerners, who are used to the idea that we make laws and export them rather than the other way around, this is quite a reality shift.

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 (but please turn off HTML).

May 25, 2007

Bent copyright

For a time in the late 1980s and early 1990s you hadn't arrived as a skeptic until you'd been sued by Uri Geller. The person who bore the brunt of most of the lawsuits was, of course, James Randi, the escape artist, stage magician, and paranormal investigator.

I never got beyond threats. On the first occasion, I wrote a news story for New Scientist about the Randi/Geller law suits. I seem to recall a lawyer’s letter, but the details are hazy by now. Geller's brother-in-law, Shipi Shtrang, also wrote to the magazine objecting to my work on ethical grounds, calling me a promoter for Randi. That was a little sticky until the editor realized Shtrang’s connection to Geller. I am, of course, not now nor have ever been a promoter or publicist for Randi, though I admire much of his work.

The second time was the green room before a TV show on which Geller and I were both booked appearing. Practically Geller's first words to me were: "If you print lies about me in your magazine, I will sue you for a quarter of a million pounds." A researcher saw us and bustled over. "Everything all right?" he said. "Oh, yes," said Geller. "We're just having a friendly conversation."

That's his idea of friendly?

It was, I'm fairly sure, since I covered the story in detail at the time, the Scientologists who first hit on the idea of using intellectual property law against online critics. The Church of Scientology has always claimed that its goal was not to stifle criticism but to protect its "trade secrets", as it called the L. Ron Hubbard writings that adherents study for many expensive hours. Whether the CoS's claim was true or not doesn't really matter. Copyright maximalism provides a legal structure people can use to stifle critics if that's what they want to do and that remains the core issue no matter what anyone's motives were in a particular case.

Fear of litigation is a powerful motive for self-censorship.

I hazard no guesses as to Geller's motives when he contacted YouTube, cited the Digital Millennium Copyright Act, claimed copyright in a 13-minute video critiquing his claims, and demanded the video's removal. But in doing so, he attracted the attention of the Electronic Frontier Foundation, which does not take DMCA takedowns lightly.

The video itself was an excerpt from Secrets of the Psychics, which aired in the US in 1993 as part of the Public Broadcasting Service’s Nova series. It was posted by “Brian Sapient”, a member of the Rational Response Squad, an activist group that among other things uploads debunking videos to YouTube. The EFF, in its complaint (PDF) says that only three seconds (out of a little more than 13 minutes) of the video are in fact copyright to either Geller or his company, Explorologist Ltd. Geller, the EFF argues, should have known he did not own the copyright in the bulk of the video, and that by misrepresenting that ownership he violated “17 U.S.C. § 512(f)”. This section of the US Copyright Act states that any person who knowingly misrepresents that material is infringing will be liable for any damages. Sapient’s account was suspended and all the videos he had uploaded were unavailable for more than two weeks.

The bigger issue, which the EFF also addresses, is whether three seconds is fair use. Under US law, you are allowed to copy small portions of copyrighted works for the purpose of criticism or parody. Ensuring the extension of those rights into the digital world is very much a big issue with EFF – and unlike a lot of skeptics EFF’s array of in-house lawyers can afford to stick with the case. In fact, they must.

Also unlike the skeptics, the EFF may be able to prove its contentions. No skeptic will ever be able to prove that Geller has never bent a spoon paranormally; you cannot prove a negative. Or, as Randi likes to put it, if you drop 100 reindeer off the top of the Empire State Building and they all go splat you still haven’t proven that reindeer can’t fly. You have only proven that these reindeer either couldn’t or chose not to fly on this occasion.

Geller used to say repeatedly that he didn’t care what anyone said about him; he only cared that they spelled his name right. But in fact, as Geller’s subsequent actions suggest he knows, all publicity is not good publicity. By straying into the copyright wars, Geller has made the questions about his abilities much more widely known than they would have been had he left the YouTube videos alone. Whether it’s copyright infringement or a suit for defamation, as John Gilmore famously observed, “The Internet perceives censorship as damage, and routes around it.”

Suing Geller for copyright abuse is like the Feds eventually prosecuting the mobster Al Capone for tax evasion: it’s not really what you wanted. In a perfect world, the question of whether Geller actually has paranormal powers would have long since been resolved through scientific testing. But in the end, whether he does or not, he is relatively insignificant. If he has a paranormal ability to affect metal, it seems to be largely useless for anything other than showmanship. Shouldn’t it have changed the world by now?

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 (but please turn off HTML).

February 2, 2007

One copyright does not fit all

I had a piece in the Guardian this week that caused me to rethink a portion of the giddy optimism with which I've typically embraced the notion of "free culture". Not, I hesitate to add, that I want to take back anything I said previously about the disproportion of the fees charged for Corbis's pictures versus their actual value to a taxi business.

However, in the process of writing that piece the comments from the photographers I interviewed made it clear to me that the discussion about copyright and free culture generally focuses on intellectual property that starts with writers: movies (screenwriter), music (songwriters), books (authors), and so on. Photography doesn't start there, and the more I spoke to photographers the less convinced I was that it ends up in the same place, either.

"What separates photography," Tony Sleep said to me while I was researching that article, "is the insertion of agents and middlemen, who have disproportionate power." Photography now is dominated by three mega-agencies, whereas the literary world is still awash in tiny few-man shops who provide writers of all stripes with personal representation. That used to be true in photography, but is no longer.

Those differences are why Sleep (who took the picture I have, by permission, on my Web site) can simultaneously love free culture and condemn the Gowers Report as a disaster for photographers. Gowers does not even mention photography, though submissions from the National Union of Journalists and other groups did.

Like a lot of people, I cheered Gowers for recommending against extending the term of copyright for music recordings and his general approach towards free culture, and the necessary public balance between the interests of creators and artists and the interests of the public. However, it's a sign of how used we have all become to the realities of daily work in journalism that Gowers' failure to consider redressing the commercial imbalance that now exists between creators and rightsholders, something I remember pleading for ten years ago, passed without comment. If, as Tony Sleep argues, we're going to revise the 1988 copyright act, why not make it illegal to assign copyright and sign away moral rights? A lot of the reason some artists get so angry over run-of-the-Net copying and file-sharing is that they've been so badly burned in the commercial arena. Redress some of that unfairness, and then the public's interest might seem more reasonable to them.

I have always thought that a situation where someone must ask permission to exploit his own work was morally wrong. The longstanding exception is people whose creations are made in full-time employment (which Sleep equates to Thomas Macaulay's "patronage"), where your employer pays you a salary, provides you the equipment you need to work, gives you paid vacations and sick leave, and a pension (and, these days, backdated shares in the company). For freelances, though, the tradeoff was always that although you didn't have any of those things in return you kept your copyrights.

The Web has largely (though not entirely) ended the opportunities wordsmiths had for reselling the same articles into different markets; as recently as ten years ago I was still hearing about freelance writers for whom foreign sales were a substantial portion of their income. But the same is not true for photographers, whose overheads are far higher in any case: every new article needs illustrations. Images that mean little one day may suddenly be extremely valuable the next – or on another day 30 years later; some images are reused endlessly. Photography is also, of course, a service, as in corporate awards ceremonies and weddings, where what you're buying is less the photographs themselves than the expertise and equipment that ensures the photographs will be on time and to specification.

Besides, while you could say that individual photographers and other creators have the same right to pursue copyright infringements as Big Copyright, in practice, as Mike Holdnerness said in the Guardian article, it doesn't work that way. Hence his suggestion to create a Copyright Small Claims court to give freelance creators better access to the courts.

Big Copyright has, therefore, done two sorts of damage, and they're interlinked. First, is to make it significantly harder for many creators to make a living than it was 20 years ago. Rates haven't budged, and most contracts demand all rights, so with inflation you're looking at significantly less income than you might have had back then. Second, as Sleep points out, is that by taking absurd and disproportionate actions – Corbis and Getty; the RIAA versus Napster, Grokster, and a generation of file-sharing customers; the MPAA and more file-sharing customers – Big Copyright has alienated public opinion into seeing copyright as legalized theft from the public.

That said, I still can't agree with the photographer who said to me, "I don't see why copyright should ever expire." Ownership of a house doesn't, he pointed out. But, as I seem to keep saying, creators are net consumers of intellectual property, and copyrighted materials really aren't houses. If the only way we could create new works was to stand on the shoulders of giant houses, we'd be trampling up rights-of-way quickly enough.

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 (but please turn off HTML).

December 15, 2006

I hear dead people

You just can't please some dead people. Last week's report from the Gowers review and its recommendation not to extend the term of copyright in sound recordings past the current 50 years predictably annoyed the record industry. A day later, Phonographic Performance Limited, the collection society for sound recordings, responded by taking out a full-page ad in the Financial Times listing 4,500 musicians whose signatures it collected protesting Gowers' recommendation.

Well, fair enough; if anyone has the right to talk about copyright in sound recordings it's musicians, without whom there would be nothing to talk about. That doesn't mean they should have the right to dictate policy, but probably few outside the business understand the extent to which any musician who stays in the business any length of time has been ripped off (by both professionals and amateurs), cheated, and otherwise buffeted by the "I love your music"s of life. Spend any time with them, and you'll run across a load of people who are determined that if they can ever get their rights back they're never going to lose control of them again.

It's just that some of the musicians signing the ad were…dead.

It's not a big deal. No one is alleging that the Gowers recommendations made them commit suicide or anything. They're just dead.

And, apparently, recomposing.

Mind you, the people most affected by term expiry are in fact the dead musicians, since it's rare for them to produce new recordings and therefore royalties from the old ones are all they have in the way of income.

Among known dead contributors to the PPL petition are Lonnie Donegan, Richard Harris, Freddie Garrity, Jimmy Shand, Richard Berry, Iain Mackintosh (whom I knew and, like everyone, liked a lot), and Nat Gonnella, with death dates varying from 1997 until just last August (Mackintosh). Among the lesser-known session musicians and small-timers, there may be many more, and some of the names on the list may be in fact heirs controlling the estate rather than the musician himself. The British folksinger great Cyril Tawney (who wrote "Grey Funnel Line", "Sally, Free and Easy", and other classics) is not listed – he died in 2005 – but his widow, Rosemary, is.

I can think of a number of ways that dead musicians' names might end up on a petition like this.

Mediumship: paging James Randi to the white courtesy phone... If someone can contact these musicians, explain the debate to them, and get a reliable signature under proper observing conditions this person clearly qualifies for James Randi's $1 million award. Randi expects to resume his normally hectic schedule (after a bout of ill-health) in the next few months. One to investigate, surely.

Prior art: the PPL collected signatures by contacting musicians "throughout the year! and asking them to sign the petition to support the campaign. "One-man folk festival" Pete Coe says "I did sign up for this, as I support the campaign." It seems reasonable to assume, at least in the case of the more recent deaths such as Mackintosh's, that the musicians themselves signed the petition. The older deaths are almost certainly…

Proxy: their heirs and assigns signed it in their name. In the case of "James Shand", the original Jimmy Shand's son is himself a performer, as is his brother, Neil, and any family that's been in the business that long is likely to be well aware of what rights mean in terms of income. There is a basic assumption here that benefiting the musicians' widows, children, and grandchildren is the same to the general public as providing a longer run of royalties to the musicians themselves.

Coe's comment on that score is likely to be pretty much most people's reaction: "I don't have a problem with family claims though I don't have much sympathy with corporate record claims unless the royalties really are being passed on to the composers' heirs." (The PPL's petition, however, did not cover composers' rights, merely performance rights in sound recordings; there may of course be other petitions and campaigns that the PPL has in mind. Probably also those heirs who are not getting royalties passed on to them would be less likely to sign the petition.)

But if that's the situation, then the PPL needs to be clear about it, because it isn't fair to play on the deep emotional connection people make with their favorite musicians if the petition's supporters are not actually those musicians but their descendants. Income-producing rights are the one valuable thing many musicians have to leave their families; it's natural for the families to want to hang onto them.

But that's not how we make policy. Copyright was created, and persists, to give creators incentives so they will continue to create and rewards so they can *afford* to continue to create. You make a lot less music if you have to spend all day working in a Post Office to support your habit. At least that's the theory, though it doesn't seem to work for dead musicians, who have all the time in the world at their disposal and no living expenses, and yet produce very little.

Keep music dead. Hire dead musicians.

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 (but please turn off HTML).

Continue reading "I hear dead people" »

December 8, 2006

In praise of Gowers

The most surprising thing about the Gowers report PDF) on the future of copyright in Britain, which was released Wednesday afternoon, is that so much of it is so rational. In fact, so many of its recommendations are good that it seems almost churlish to carp about the few that aren’t. Still, that’s what we’re here for.

First, the good. Gowers’ report came down in favor of exceptions for: derivative and transformative works, archives’ and libraries’ preservation copies, research, distance education, caricature, parody, and pastiche. It recommended creating an exception for limited private copying – format shifting. (As American readers may not know, it’s technically illegal in the UK to rip a commercial CD and copy the resulting MP3s to an iPod.) Similarly, it’s hard to object to the recommendation that Trading Standards be given the power to crack down on counterfeit CDs at boot sales and so on.

The probably biggest news: Gowers recommended firmly against copyright term extension in sound recordings, against the pleadings of Big Music. The basis for this was largely an economic report (PDF) commissioned specifically for the review that is utterly worth reading for its careful analysis of what facts we have about the economics of older recordings.

Its findings in brief: the costs of term extension to consumers are greater than the benefits to the recording industry. The economic report invalidates a number of claims made by the record industry. The impact of term extension on the balance of trade would be negative, because in the biggest two of the 13 countries that have longer terms than the UK does, the US and Australia, UK rightsholders would not be able to benefit under rules known as “comparison of terms”. In the US, the world’s biggest music market ($12.1 billion in 2004), international imports command only 5 percent of sales. The report carefully derives an estimate of £155 million in “welfare loss” to consumers if term were extended. Finally, this report points out that although the term of copyright in sound recordings is shorter in the UK, recordings are protected by a broader array of rights, so simply comparing term length is misleading.

Most of the patent recommendations seem rational, too; Gowers recommends holding the line on barring patents on discoveries, mathematical methods, pure software, and business methods. This is interesting, as the review also recommends continuing to support the development of the EU community patent, which is widely believed by anti-software patent campaigners to be an attempt to sneak software patents into Europe. Gowers also recommends some measures that sound utterly sensible, such as sending Patent Office staff on short-term placements to university research labs so they are kept up-to-date on new technical developments (and are, therefore, presumably less likely to grant patents for which there is prior art).

What’s less certain is what the impact would be of the recommendation that the cost and time involved in obtaining and litigating patents should be lessened. On the one hand, lowering costs and simplifying the legal system would certainly make the patent system more accessible to small businesses. On the other hand, lowering costs will make it cheaper and easier for large businesses, too.

The two recommendations out of 54 that are really worrying are 38, and 39. Number 38 recommends ensuring that “an effective and dissuasive system of damages” exists for civil IP cases. The concern here is in ensuring that a legal distinction is drawn between commercial and non-commercial copying, something I’ve been advocating for years. It is extremely clear that commercial counterfeiting, whether physical or digital, where people pay for fake copies, leaches sales from the rightsholders. (Yes, you can argue that someone who buys a DVD for £5 might not buy the same DVD for £25, and that’s true – but it’s only a matter of time before prices on the officially released DVDs drops, especially with hi-def DVDs coming into release.) It is much less clear if this is true about file-sharing; there is still insufficient research available into how and why people share, and what its impact on the industry really is. If these recommendations are translated into rules that impose huge damages for activity whose actual impact is unknown, this would be a bad thing.

Number 39 recommends creating protocols for sharing user data between ISPs and rightsholders, “to remove and disbar users engaged in ‘piracy’.” If, it adds, such protocols aren’t developed by the end of 2007 the government should consider legislating. Until now, the data protection laws have hampered such sharing. This is where you have to wait to see specific proposals before you can tell whether users’ right to privacy is going to be respected or not. It’s hard, on the fact of it, to see why rightsholders shouldn’t have to go through the same police procedures, culminating in a court order, as anyone else if they want to know who a particular user is. But again: the devil is in the details.

Gowers’ recommendations almost all point in the opposite direction to current US trends, and also to much of what industry wants. Will the British government have the guts to adopt 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 (but please turn off HTML).

November 17, 2006

Waiting for Gowers

So here it is November, and we are drumming our heels impatiently (to the annoyance of the new downstairs neighbours) still waiting for the results of the Gowers Review of Intellectual Property, which was supposed to report to the Chancellor, the Secretary of State for Trade and Industry, and the Secretary of State for Culture, Media, and Sport "in Autumn 2006". I'm not sure when "Autumn" officially begins or ends, but I'd go with August Bank Holiday/Labor Day to the Sunday when the clocks change.

Perhaps the delay is due to global warming.

The Gowers Review is large and complicated. One change the recording industry is lobbying for is copyright term extension for sound recordings; although copyright in sound recordings is 95 years in the US, here you only get (weep for them) 50. The Open Rights Group, on whose advisory board I email, held an event to air the matter earlier this week. It is heartening to report that the event was full of people and passion: one reason copyright has kept getting extended is that no one outside the industry seemed to care.

There are a number of things that *aren't* included in the review. Government information, for example, which had its own review in 2000. Crown Copyright and Parliamentary Copyright (it may not make sense to an American that the text of national legislation is copyright, but so it is). The Patent Office is doing its own review of trademarks and the definition of a "technical step" that's required to make something patentable – this applies in a vital way to the question of patenting software programs. But things like digital rights management, orphan works, archives' right to make preservation copies, and the problem that of perpetual copyright in unpublished work are all being considered. (Yes. A 15th century, anonymous, unpublished poem cannot legally be published or copied.)

The problem is that so many deals can still be cut in smoke-filled back rooms. The reviews' original plan seems more interested in business IP use than in consumers' rights.

We say again: all intellectual property law is a balance between rewarding artists and creators and the rights of the public to access and use their own culture. Corporations that have bought up large numbers of copyrights won't care about this, but (as I also keep saying) every creator is a net consumer of intellectual property. Every writer reads more than he writes; every musician listens to more music than he learns or composes; every filmmaker, even Woody Allen, sees far more films than he will ever make. The more restrictive – or, in Pamela Samuelson's word for it, maximalist – copyright becomes overall the less people will be able to build on the past to produce new work. And no one, no matter how much of a genius, ever creates things that are entirely new with no reference to what has gone before.

So my hope is that what's taking the extra time is that there are lots of impassioned submissions and Gowers and his team are having to consider public interests they didn't expect. And not, instead, that what's happening is behind-the-scenes dickering to skew the report against the public interest.

It's only the future of copyright in the UK.

Still: the point isn't to rush to release the report. The point is to get the report right.

What *should* happen? The Skeptics, another subculture I inhabit, have a saying with reference to the paranormal that "Extraordinary claims require extraordinary proof." Copyright has been with us for centuries, but the relentless march to extend it has vastly accelerated since the mid-1970s. I think we should class the claim that further extension is necessary as extraordinary, and we should demand commensurate proof of its need from those who are lobbying for it. Especially since the industry's major players are the same in every country; in other legal areas we do not assume that the UK must have the same laws as the US. Why should that be true in copyright?

While we're waiting, I have long thought that we need to replace the term "intellectual property". It's a bad metaphor, and calling the intangible results of the creative process "property" stacks the deck against anyone in favor of public access, because as soon as you talk about limiting the term of property rights you sound like a thief. I've been trying to come up with a term that expresses something about products of the creative process ("croducts"?) or what John Perry Barlow talks about as creatures that form in the intellectual and emotional space between two people. I haven't had very much luck. (Could we talk of a "clever"? or borrow Vannevar Bush's term for his Web-like fantasy machine,a "memex"?) "Intellectual children" is my best analogy: like children, you create and murture the products of your mind, and at some point they leave you and have to find their own way in the world. You do not, ever, own them.

A free copy of one of my books to anyone who can come up with a really good answer to this. Meantime, I'm sure Punxsutawney Phil will be along any day now, looking for his shadow.

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 (but please turn off HTML).

September 8, 2006

Crossing the streams

OK, this is weird. I'm sitting at my desk in London watching a match from the U.S, Open (a modestly sized tennis tournament finishing up this week in New York City. I'm watching it on the laptop. Not so strange; lots of people watch TV on their computers these days. Only in this case I'm watching the match as broadcast on USA Network, a satellite channel people get by cable. In the US.

Some months back in the online tennis forum I hang out in, you started seeing mention of "streams" of live tennis, all coming from Asia somewhere, somehow And damn if it wasn't true. Forget all those P2P networks that make you wait a day or two while someone seeds their digital copy of last night's broadcast – if anyone else is even interested enough in that quarter-final Jankovic-Dementieva match to upload it. Pick a player, and although the picture is small, you can have it live. Complete with commercials. At last I can see the ads repeating 12 times an hour that everyone else is complaining about. Whee!

It's weird the frisson of excitement with which you can welcome ads when they're part of something exotic and slightly forbidden. Believe me, if I were sitting in my friends' living room in Pennsylvania – I'd be complaining away with the best of them about *how many times* do we have to see that Sharapova-as-Leona Helmsley commercial (what's she supposed to be selling, anyway? Noblesse oblige?). But viewed this way it's suddenly so cool, like huddling around the short wave radio and tuning in South Africa.

The closer analogy is the early days of satellite television, when satellite nuts (this was before we learned the politically correct phrase "early adopters") had big dishes in their backyards, and found all sorts of interesting things in the sky, like free HBO (in those days, still known as Home Box Office). When dish owners numbered 1.7 million, the pay-TV services got bothered began encrypting their services to force dish owners to pay cable rates. The upshot: one of the great moments of satellite television; href="">"Captain Midnight" hijacked HBO's output for four and a half minutesin protest. Captain Midnight was later identified as John MacDougall, a satellite TV salesman, and he was eventually fined $5,000.

Things are likely to be less kindly in the Internet era. For one thing, the companies that own the biggest broadcast networks are bigger, meaner, and have more laws. The first Internet TV casualty was probably the Canadian-targeted iCraveTv, which for a few months in 2000 had 17 American and Canadian channels online,. The service got squashed like a bug, despite offering to pay broadcasters. Bear in mind that the first cable companies operated much the way iCraveTV did: they put up a repeating and ran a bunch of wires.

Well, we know how the Internet works. Take out one guy and in return you get a lot more guys that are harder to deal with. I've lost count now of the players and sites: TVUPlayer, TVAnts, PPLive, Sopcast. All are Asian, all stream live TV, and all use peer-to-peer networking technologies to spread the load. Which means, in turn, that the single biggest expense in streaming – bandwidth – is shared among the users. Most of whom, as far as I can tell, are sports nuts, which is only logical. The picture you get from these players is, while good enough to watch, still relatively small and low-resolution. For scripted television, you can get a better experience by waiting the day and downloading a torrent or a legal copy from the pay services that are beginning to open up.

But the whole experience of sports is the fact that it is live, and no one really knows how it's going to come out. Within some limits, a bad, live picture is often preferable to a perfect, delayed one. Even if you can't really see what Federer is doing when he hits the ball, you want the emotional rush of being there with him. You can always watch the full-size version later for artistic appreciation.

Theoretically, the fact that the pictures are small ought to give broadcasters the same kind of confidence that publishers have when it comes to file-sharing. People will pay for big-screen viewing just as they'll pay for books. Nonetheless, we're standing on the brink of the WIPO broadcast treaty that net.wars wrote about in February, 2005.

James Love has a lengthy critique of the current proposals (PDF). But one thing he leaves out is that as far as I can make out, today's streaming players "rebroadcast" their signals by pointing at an IP address where the broadcaster itself is streaming its own output. Are we talking about making it illegal to access or publish IP addresses based on the content that's available at them? TEOTIAWKI. (The End of the Internet as we know it.)

I can't believe these streams are really legal, despite this argument regarding law enforcement actions in Italy. Even if they include ads, someone in London is not in the target demographic for the USTA. Presumably, eventually everybody will encrypt their streams and we'll all have to have protected players and subscriptions in order to view them. In the meantime, enjoy your giant satellite dish.

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 (but please turn off HTML).

August 25, 2006


The story as it's been explained to me is one of those archetypal sad Internet tales. About five years ago, the owner of a small, Taunton-based cab company decided to create a Web site to advertise the business. He hired a Web developer, who created and set up the site, decorating it with a few pictures. Time passed. About two years ago, the Web developer went bust; another local company took over hosting the site. About a month ago, the site owner got a letter from the legal firm Baker & McKenzie informing him that they represented the photography database Corbis, that one of the photographs infringed Corbis's copyright, and that would be £1,400, please.

There can't be very many small businessmen who get a letter like that who don't panic at least a bit. Two solicitors gave conflicting advice. One said, no case to answer. The other said, pay something because if it goes to court a judge would look on that as evidence of good faith. As of this writing, it's not clear how things will wind up.
But there are some interesting points to make.

First of all, assuming that he is telling the truth and never asked his Web developer where the pictures had been sourced or whether the rights had been cleared, ultimately the owner of a Web site is responsible for whatever appears on it. If you run a Web site – any Web site – you are operating at some risk if you use material that doesn't belong to you. Even if you think that all information should be free and share the fairly common attitude that anything posted on the Web is public domain and free for the copying, the law does not agree with you. And while you may feel that using someone's graphic and linking to it is good publicity for them, that's not your choice to make, it's theirs. Individuals may get away with casual copyright infringement; but if you are running a business you can't afford the risk.

There is a legal precedent establishing the Web developer's responsibility in such cases: vs Rodney Fitch & Company. In this case, the owner of an online start-up discovered that the Web developer had lifted the images used for navigation bars, icons, and other decorative elements from a printed encyclopaedia. No action had been brought against the site owner, but that company felt, I think rightly, that the risk of liability was too great and that they would have to pay to redo the Web site without that material. The court sided with Practical lesson: Web developers and site owners both need to protect themselves.

Nonetheless, Corbis's demand for £1,400 seems disproportionate. The cab company almost certainly did not get more business because the photograph is in the Corbis database (if you want to look it up, it's image number 72584) or because it was taken by the photographer Steve Chenn, admirably composed though his work seems to be. It's a minor decoration intended to dress up an otherwise ordinary Web page.

Ian Walden, a reader at London's Queen Mary University, says that in a legal proceeding the court generally tries to do two things: stop whatever the infringement is, and compensate the claimant for the loss that's been caused.
"When a court has to examine past loss," he says – as in this case – "they tend to look at what is a reasonable fee. So they would look at what is the market rate for that sort of image. So there's reasonableness. The claimant doesn't get whatever they as for." After talking to him, I went to the Corbis site, created an account, and found the photograph. For small-sized use on a "corporate or promotional" Web site, aimed at a UK audience, in English, as a static element, in the transport or travel industry, for up to five years beginning August 23, 2006, Corbis would charge: $875.

Of course, no small company is going to pay even that. The Web developerMac Jordan keeps a publicly available set of bookmarks to sources of stock photography, all either very cheap or free, all royalty-free. For such a minor use, there is no reason to pick an expensive image over a cheap or free one.

In addition, because the Web developer is gone, we don't know how or where the photograph was sourced or whether the rights were in fact cleared. We only know that Corbis claims the use is an infringement. I would be inclined to ask them to prove that claim.

But there is another point, raised recently in a posting to Dave Farber's Interesting People list, in which Brad Templeton proposed the term "spamigation" for lawsuits automated by computers. Baker & McKenzie is a big, high-priced law firm. You know their partners aren't sitting around scouring the Net for images they recognize from the Corbis database. Someone has software that goes and spiders for this stuff, and when it finds something a computer spits out a letter. Probably somewhere along the line the lowest-priced intern in the place goes and looks up the site's Whois entry. You don't need a lot of people to pay up at first contact to make that a profitable business.

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 her personal blog, or by email to (but please turn off HTML).

July 14, 2006

Not too cheap to meter

An old Net joke holds that the best way to kill the Net is to invent a new application everyone wants. The Web nearly killed the Net when it was young. Binaries on Usenet. File-sharing. Video on demand may finally really do it. Not, necessarily, because it swamps servers, consumes all available bandwidth. But because, like spam, it causes people to adopt destructive schemes.

Two such examples turned up this week. The first, from the IP Development Network, the brainchild of Jeremy Penston, formerly of UUnet and Pipex, HD-TV over IP: Who Pays the Bill? (PDF), argues that present pricing models will not work in the HDTV future, and ISPs will need to control or provide their own content. It estimates, for example, that a consumer's single download of a streamed HD movie could cost an ISP £21.13, more than some users pay a month. The report has been criticized, and its key assumption – that the Internet will become the chief or only gateway to high-definition content – is probably wrong. Niche programming will get downloaded because any other type of distribution is uneconomical, but broadcast will survive for mass-market.

The germ that isn't so easily dismissed is the idea that bandwidth is not necessarily going to continue to get cheaper, at least for end users.

Which leads to exhibit B, the story that's gotten more coverage, a press release – the draft discussion paper isn't available yet – from the London-based Association of Independent Music (AIM) proposing that ISPs should be brought "into the official value chain". In other words, ISPs should be required to have and pay for licenses agreed with the music industry and a new "Value Recognition Right" should be created. AIM's reasoning: according to figures they cite from MusicAlly Research, some 60 percent of Internet traffic by data volume is P2P, file-sharing, and music has been the main driver of that. Therefore, ISPs are making money from music. Therefore, AIM wants some.

Let's be plain: this is madness.

First of all, the more correct verb there is "was", and even then it's only partially true. Yes, music was the driver behind Napster eight years ago, and Gnutella six years ago, and the various eHoofers. But now Bittorrent is the biggest bandwidth gobbler, and the biggest proportion of transferred data transferred is video, not music. This ought to be obvious: MP3 4Mb, one-hour TV show 350Mb, movie 700Mb to 4.7Gb. Music downloads started first and have been commercialized first, but that doesn't make it the main driver; it just makes it the historically *first* driver. In any event, music certainly isn't the main reason people get online: that is and was email and the Web.

Second of all, one of the key, underrated problems for any charging mechanism that involves distinguishing one type of bits from another type of bits in order to compensate someone is the loss of privacy. What you read, watch, and listen to is all part of what you think about; surely the inner recesses of your mind should be your own. A regime that requires ISPs to police what their customers do – even if it's in their own financial interests to do so – edges towards Orwell's Thought Police.

Third of all, anyone who believes that ISPs are making money from P2P needs remedial education. Do they seriously think that at something like £20 per month for up to 8mbps ADSL anyone's got much of a margin? P2P is, if anything, the bane of ISPs' existence, since it turns ordinary people into bandwidth hogs. Chris Comley, managing director of Wizards, the small ISP that supplies my service (it resells BT connections), says that although his company applies no usage caps, if users begin maxing out their connections (that is, using all their available bandwidth 24 hours a day, seven days a week), the company will start getting complaining email messages from BT and face having to pay higher charges for the connections it resells. Broadband pricing, like that of dial-up before it (when telephone bills could be relied upon to cap users' online hours), is predicated on the understanding that even users on an "unlimited" service will not in fact consume all the bandwidth that is available to them. In Comley's analogy, the owner of an all-you-can-eat buffet sets his pricing on the assumption that people who walk in for a meal are not in fact going to eat everything in the place.

"The price war over bandwidth is going to have to be reversed," he says, "because we have effectively discounted what the user pays for IP to such a low level that if they start to use it they're in trouble, and they will if they start using video on demand or IPTV."

We began with an old Internet joke. We end with an old Internet saying, generally traced back to the goofy hype of Nicholas Negroponte and George Gilder: that bandwidth is or will be too cheap to meter. It ought to be, given that the price of computing power keeps dropping. But if that's what we want it looks like we'll have to fight for it.

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 (but please turn off HTML).

June 23, 2006

Suvival of the piratest

What with one thing and another, we didn't get around to documenting the brief vanishment, a few weeks ago, of The Pirate Bay, one of the leading torrent index sites. Based in Sweden, The Pirate Bay has a kind of McMurphy thing going, in that it seems to keep surviving while the other sites around it are chewed up by the system (we note that the eDonkey site Sharereactor's trial begins today..

So the other week when it went down, everyone kind of held their breath. Probably not least the fine people (and sometime employers) at Wired News, who had just a little while previously run a piece about The Pirate Bay's in-the-MPAA's-face resilience. Is the curse of Wired News death by legal action? The Pirate Bay itself ran a page on its site saying it would be back in a couple of days, but you hardly knew whether to believe that – it's what they all say in their first flush of defiance. (The five stages of P2P site closure: denial, defiance, settlement, redirection, and someone else starting up somewhere else.) But sure enough, a couple of days later, back it was. At this point, you'd never know it was gone except for the news stories.

The Pirate Bay has another unusual characteristic: it's loosely associated with a political party whose platform is to change the copyright laws to make sure that file-sharing is and remains legal in its home country. We could use more of this. I'm sure if you asked around the Net you'd find a grand consensus that file-sharing should be legal. I'm sure you'd also find plenty of people prepared to make electron-splitting arguments about whether posting a torrent is a copyright violation (the torrent is not the copyrighted material, just a pointer to same), or whether an indexing site (pointers to the pointers) is a copyright violation, and so on into the reflections of the boy on a bottle holding a bottle with a picture of a boy on a bottle holding a bottle…

Sure, you can pile up the layers of abstraction. But in the end, although there is absolutely no question that file-sharing technology has significant non-infringing uses and should not be made illegal in and of itself, a site that has a search engine with a category for "TV shows" basically knows that some of the material it enables users to find is going to violate someone's copyright. On the other hand, this is the nature of search engines, and no one is proposing to take down Google for copyright violations (despite some complaints). The only way you could limit the material search engines found to material that is either authorized or public domain would be to wrap everything in metadata. Good luck getting the entire planet to agree with and then accurately use your system.

But here's the thing. The MPAA has been on the attack for probably a year now (and the RIAA has been at it for more like seven years), and what is the upshot? Some sites have vanished – Lokitorrent, Grokster, Napster 1.0, Suprnova. Some of the closed sites have reinvented themselves either as legal services (Napster 2.0) or as replacement sites doing exactly the same thing as the old one. But the bottom line question the **AAs should be asking themselves is: have these actions made coyprighted material any less available through file-sharing or made file-sharing any less popular?

The answer is no.

The RIAA is apparently in denial about this.

But the answer is still no: over the last year file-sharing is up by 12.4 percent according to the P2P tracking firm Big Champagne (or ask any ISP).

More stuff comes online every day, and not only more stuff but more kinds of stuff. It's long been true that almost any broadcast show could be found online in a day or two. But six months ago you'd have been hard pressed to find a tennis match online. Maybe one or two. Now, if you miss a final or semifinal or it isn't broadcast near you, there's a reasonable chance you'll be able to download it in a day or two. And not just recent matches: people are beginning to post their favorite classic matches, too. And no, they're not all Kournikova.

Obscure movies you couldn't find a year ago are turning up (sometimes because between then and now they've been released on DVD). There are a few things that were listed on some of the more interesting edonkey sites that I can honestly say I haven't been able to find since those sites vanished a year or two ago. But those were almost entirely material that is not commercially available – such as 1960s American TV comedies – not material that you could perfectly well buy. So the only material they've succeeded in getting offline is stuff that the industry is either unable or unwilling to sell for profit. Some days, ya gotta love the logic of the War on Files.

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 (but please turn off HTML).

May 26, 2006

Patent harmony

In what seems to have been a shock to all concerned, the European Commission yesterday said last week that it would ban software patents in the EU in the upcoming community patent legislation – and would be binding upon the European Patent Office.

Some background. Everyone agrees that anything to do with patents in the EU is ridiculously expensive. Every EU country has its own national office that can grant patents, and every country has courts that can invalidate them.

There are so many weird anomalies in European patent law that it's unreal. For example, the whole mess is subject to the 1973 European Patent Convention. But the EPC isn't an EU treaty; it applies to the countries that have ratified it. Most of those are EU members, but not all. The European Patent Office (which is headquartered in Germany), on the other hand, while it was formed under the EPC isn't subject to EU control – it's not an EU institution. The national patent offices are subject to their national laws. Under the treaty, you don't need to apply to each separate country; instead, you can list the countries you want on your application to one office, and if the patent is granted it will be recognized in each place. Patents granted by the EPO are valid in all the EPC countries.

Any patent can still be ruled invalid by a court of law. But – and this is the really expensive part – action against a patent can currently only be taken at the national level. So the system is hugely unbalanced toward granting patents and keeping them valid: you can apply in one place to get a patent that, if awarded, will be valid everywhere in the EU, but you must bring an action in every single national court if you want it overturned. It is incredibly expensive and time-consuming, and probably by the time you'd gotten through all those national courts the patent would have expired anyway. But what's your other choice? Wait 20 years to pursue your idea?

On the other hand, if you're the small business with a great idea that competitors are trying to grab, it's just as expensive to defend yourself. Hence the comment a struggling inventor made to me a couple of years ago: "Patents are only as valuable as the money you've got to litigate to protect them."

OK. You're the EU and you want to compete with the US, which grants 18.75 patents per hour (2004 figures; that rate has undoubtedly gone up since then). You want – or ought to want – a patent system that inventors respect, that promotes progress, and that confers whatever economic benefits you believe patents confer. You therefore ought to want a system that rewards genuinely new inventions and discoveries while not rewarding bad ones. It needs to be efficient, inexpensive enough for small businesses to use (but not so cheap as to make it as easy for patent trolls as it is for spammers), and responsive. Bad patents should go quickly; they are detritus clogging up the system.

Obviously harmonization is important; in fact, it's been on the EU agenda since 2000, and about once every couple of years someone tells you, "I think it's really going to happen this time." But the announcement removes one of the biggest stumbling blocks.

The stumbling block for the last few years has been software patents. Germany, according to anti-software patent campaigners, tends to take the most robust view, declining to patent anything that doesn't have an effect on the physical world. The UK and the EPO, according to the same source, tend to be the most liberal (and US-like) about awarding patents on software. Even if that's not true (as the UK Patent Office has said), opponents of software patents remain deeply suspicious of any move toward harmonization; they remain convinced that software patents are the hidden agenda. The 2005 defeat of the European Computer-Implemented Inventions Directive, after all, was more because of an internal power struggle between the European Parliament and the European Commission (at least, according to Florian Mueller's book) than because of the substantial grass roots opposition. If the new law is forced upon the EPO, that could go a long way toward changing practice in the EU. The key will be in defining the appeals process, the route by which a European patent can be overturned. You want independent judges and a streamlined system.

A couple of weeks ago, I ran into an MEP who was active on the pro-software patent side of that struggle. The political will, he said, is not there now to get software patents through. But harmonizing European patents and making litigation cheaper to make the system more usable for small businesses are, very much so. Taking those off-the-cuff comments and yesterday's announcements together, it looks as if proponents of software patents are willing to sacrifice them, at least for now, in the interests of getting harmonization through. Software patents can – and I'm sure will – be revisited later, at which point they may be easier to legalize. I can't believe Microsoft, Nokia, and all those other large companies are just going to shrug their shoulders and give up. But that's a way off.

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 | | Comments (1) | TrackBacks (0)

April 14, 2006

A question of balance

The good news is that the UK government has undertaken a review of copyright law. "While it has been suggested that the present UK system strikes broadly the right balance between consumers and rights-holders, it also appears that there are a variety of practical issues with the existing framework," runs the introduction to the consultation document. You have until next Friday, April 21, to submit comments. Go.

But here's the bad news: do you notice anyone missing from that list of balancees? If you said, "Creators", you are a freelance and I claim my five pounds.

Freelances in journalism (in particular), and individual creators in just about every other field, are being increasingly and consistently forced to surrender their copyrights. Until 15 years ago (or thereabouts), magazines and newspapers in the UK bought First British Serial Rights; the freelances benefited from reuse of their work. It is now rare in both the US and the UK to find publishing outlets that don't demand all rights including moral rights (the right to be identified as the author of a particular work). It is equally rare to find a publisher that offers to pay more for the extra rights they are demanding. When they do, you are usually selling off all future interest in your work for a comparatively small sum (25 percent, in one case where I remember the details). Where there have been cases -- such as New York Times v. Tasini et al in the US -- establishing that, say, publishers must pay freelances for reuse of their work in electronic databases, publishers may make those payments once, but thereafter they alter their contracts to ensure they will never have to do so again.

The Creators' Rights Alliance spells all this out pretty clearly (although I disagree with their stance on the BBC). The same pattern is repeated throughout the creative industries. Photographers: high overheads, shrinking fees due to pressure exerted by the digital libraries. Filmmakers? The average director – as one said to me last year – is paid to do a film and sees nothing further once it's done; the same goes for most other participants in the making of a movie. The record industry? Read Courtney Love on that.

Copyright is not just a balance between consumers and rightsholders; two-legged stools don't stand up very well. Copyrights (and the other intellectual property rights) is a three-way balance between consumers, rightsholders, and creators/inventors. The latter group, without whom no new intellectual property will exist, is being squeezed by both the first two groups. Increasingly, the only people who will be able to afford to create anything will be people who are either rich to begin with or who have made enough money from some other activity – acting, modeling, founding a business – that they can afford it as a hobby. The idea behind paying professionals is not that no one else should enter the profession, but that it should be possible for someone to make a living; paying someone to write, think, paint, create full-time in theory makes it possible for them to create more and do a better job of it. Martina Navratilova may say airily that she wrote all her new book herself and that she just had "help" with the organizational side of it – but anyone who actually writes for a living knows that organization is the really hard part of writing a book. Anyone can throw words around.

So: what needs to be said to the Gowers review people?

First, get that third leg back under the stool before the whole edifice topples over. As Doris Lessing has written (of better writers than I am): "Without me the literary industry would not exist; the publishers, the agents, the sub-agents, the accountants, the libel lawyers, the department 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." No one is saying that anyone is owed a job. What we are arguing for is fair treatment.

Second of all, that the current situation with respect to intellectual property rights disadvantages everyone except the stars. Patents are too expensive to obtain – and still more, to litigate – for small businesses. Fair use should be expanded to incorporate the notion of private copying; there is no legal exemption allowing people to copy their CDs onto their iPods. That may have made sense when there was no technology for private copying, but these days it's just ludicrously out of step with what people actually want to do. We need limitations on what DRM is allowed to do (as net.wars has argued before).

Third of all, the notion of extending copyright terms on sound recordings and performers' rights from 50 to 95 years is ludicrous. Doing so will not inspire new work. It will benefit only the big record companies. There is no reversion of rights in the recording world when music releases go out of print.

Don't get me wrong: I really hope the Gowers review will come up with good recommendations for reform. But as written, the consultation is all about the business of copyright, and very little about the goals copyright is intended to further.

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. She has an intermittent blog. Readers are welcome to post there or to send email, but please turn off HTML.

March 17, 2006

net.wars: A fork in the code

The open-source community has always been conscious of the dangers of forking: the splitting of the software codebase into multiple versions that make the software too confusing to use. The result is that although there are multiple flavors of GNU/Linux they are all compatible. People have been very careful about the codebase.

The problem now, as so often, is lawyers. While everyone has agreed on the importance of shared programming code, there has been less agreement on the importance of shared licenses that dictate how people may use the codebase. If you choose free or open source software because you want to be able to modify, reuse, and redistribute the code, you may spend more time studying the licensing terms than you do the software. The Open Source Initiative lists 58 approved licenses.

The trouble is that many licenses require new work using old code to be distributed under the same license the old code used; when you mix code, you also mix licenses. This provision was Richard Stallman's key insight when he created the General Public License, the father of all these licenses: he wanted to ensure that software written as free software would remain forever free. This recursive requirement brilliant, and Stallman undoubtedly deserved his MacArthur Foundation Genius Award. But dozens of imitators later, it's like computer hardware in the 1970s – dozens of incompatible designs.

Aware of this, the Open Source Initiative has set up a license proliferation committee to try to streamline things.

"About 30 are kind of hard-coded with the name of the licensor such as Apple or IBM," says Cliff Schmidt, legal affairs officer for the Apache Foundation and a member of the license proliferation committee. "You could edit them, but if the point of OSI is to have licesnes you can reuse, that's a quick way to get rid of a bunch and say they're not really useful as they stand because they can't be reused."

If you move away from software, you find that Creative Commons is beginning to wrestle with the same problem. People talk about "a Creative Commons license" and imply that means their work can be remixed, reused, and redistributed, but the actual license terms vary quite a bit and people don't always notice.

That confusion is the reason Stallman has given recently for refusing to support any of the Creative Commons licenses. "I no longer endorse Creative Commons," he said in an interview with LinuxP2P a couple of weeks ago, going on to explain that the terms of some Creative Commons licenses, such as some of its Sampling licenses are "unacceptable to use for any kind of work". Debian's legal members, too, last year analyzed some of the Creative Commons licenses and have recommended against using some of them for varying reasons. A particular stumbling block for free/open source software advocates is the option of prohibiting commercial reuse and distribution – and there, I suspect, is a key difference between the content industries and the software industry.

The content industries have long been a war between individual artists/creators and large publishers/distributors. Until recently, it was rare for artists or creators to have access to the means of distribution. But software has grown up in a world where copies were easily exchanged, in an industry new enough that huge companies can be built by two people starting in a garage. Most content creators create whole works (outside of the movies, which are fundamentally collaborative). Most software is written collaboratively. Content creators are usually self-employed, most live near the edge of solvency, and they have learned from an industry with a long history of treating people like them badly to be wary that everyone but them will profit from their work. Even something like the Free Art License recognizes this danger.
Programmers, on the other hand, usually have jobs, and their work in open source may pay for itself in increased visibility, respect from their peers, and even higher salaries. That fundamental difference in outlook is, I think, one reason why documentation in the free/open source movement tends to be so poor: few writers can afford to work for free, and when they do they want to do something that isn't the same as everything else they do that day.

It seems clear that the number of licenses will be streamlined. But the fundamental political differences are not going to go away, as the inclusion of the express bar on DRM (which Stallman refers to as "Digital Restrictions Management") in GPL version 3 makes plain. In the end, we are likely to wind up with three main branches of free/open source licenses: the purist branch which bars all restrictions on reuse, digital or otherwise; the commercial branch, which allows some restrictions but does not distinguish between commercial and non-commercial reuse; and the non-commercial branch, which allows some or no restrictions for non-commercial reuse but retains control over commercial reuse. I do not see any way that these three fundamental disagreements can ever be resolved into a single free license codebase.

November 9, 2001

Save the cookie

You would think that by this time in the Internet's history we would have reached the point where the politicians making laws would have learned a thing or two about how it works, and would therefore not be proposing (and passing) quite such stupid laws as they used to. Apparently not.

Somehow, tacked onto an otherwise sensible bill aimed at protecting consumer privacy are provisions requiring Web sites to use cookies only on an opt-in basis. Consultation to remove this bit of idiocy closes in mid-November.

The offending bit appears in the second report on the proposal for a European Parliament and Council directive concerning the processing of personal data and the protection of privacy in the electronic communications sector" (PDF), and is labelled "amendment 26 to article 5, paragraph 2a". What seems to be upsetting the EC is that cookies may enter a user's computer without that user's specific permission.

Well, that's true. On the other hand, it's pretty easy to set any browser to alert you whenever a site wants to send you a cookie - and have fun browsing like that, because you'll be interrupted about every two and a half seconds. Microsoft's Internet Explorer 6 lets you opt out of cookies entirely.

A lot of people are oddly paranoid about cookies, which are, like the Earth in the Hitchhiker's Guide to the Galaxy, mostly harmless. At heart, what cookies do is give Web sites persistent memory. Unlike what many people think, a connection to a Web site is not continuous; you request a page, and then you request another page, and without cookies the Web site does not connect the two transactions.

Cookies are what make it possible to build up an order in a shopping cart or personalize a site so it remembers your ID and password or knows you're interested in technology news and not farming. These uses do not invade privacy.

There are, of course, plenty of things you can do with cookies that are not harmless. Take Web bugs. These hidden graphics, usually 1x1 pixels, enable third parties to track what you do on the Web and harvest all sorts of information about you, your computer, and what browser you use. Privacy-protecting sites like the Anonymizer depend on cookies.

Similarly, the advertising agency DoubleClick has been under severe fire for the way it tracks users from site to site, even though it says that the data are anonymized and the purpose is merely to ensure that the ads you see are targeted to your interests rather than random.

MEPs who want to protect consumer privacy, therefore, should not be looking at the technology itself but at how the technology is used. They should be attrempting to regulate behavior that invades privacy, not the technology itself. To be fair, the report mentions all these abuses. The problem is simply that the clause is overbroad, and needs some revision. Something along the lines of requiring sites to explain in their privacy policies how they use cookies and a prohibition on actually spying on users would do nicely.

The point is to get at what people do with technology, not outlaw the technology itself.

We've had similar problems in the US, most recently and notably with the Digital Millennium Copyright Act, which also tends to criminalize technology rather than behaviour. This is the crevasse that Sklyarov fell into. For those who haven't been following the story, Sklyarov, on behalf of his Russian software company, Elcomsoft, wrote a routine that takes Adobe eBooks and converts them into standard PDFs. Yes, that makes them copiable. But it also makes it possible for people who have bought eBooks to back them up, run them through text-to-speech software (indispensable for the blind), or read them on a laptop or PDA after downloading them onto their desktop machine.

In the world of physical books, we would consider these perfectly reasonable things to do. But in the world of digital media these actions are what rightsholders most fear. Accordingly, the DMCA criminalizes creating and distributing circumvention. As opponents to the act pointed out at the time, this could include anything from scissors and a bottle of Tippex to sophisticated encryption cracking software. The fuss over DeCSS, which removes regional coding from DVDs, is another case in point. While the movie studios argue that DeCSS is wholly intended to enable people to illegally copy DVDs, the original purpose was to let Linux users play the DVDs they'd paid for on their computers, for which no one provides a working commercial software player.

The Internet Advertising Bureau has of course gone all out to save the cookie. It is certainly true, as they say, that it would impair electronic commerce in Europe, the more so because it would be impossible to impose the same restrictions on non-EU businesses.

If MEPs really want to protect consumer privacy, here's what they should do. First of all, learn something about what they are doing. Second of all, focus on behaviour.