June 11th, 2009

Napster and the "The more things change" rule

Posted by Denise Howell @ 9:05 am

Categories: Copyright, DMCA, DRM, Lawsuits, MGM v. Grokster, P2P, Video

Tags: Entertainment, Napster Inc., DRM, DMCA, Business Models, Denise Howell

Drew Wilson at Zero Paid points out that Napster celebrates its 10th birthday this month. The Globe and Mail takes a deeper look in its Download Decade series. In the last decade, iTunes, Amazon, and various subscription music services have demonstrated there’s a vast audience more than willing to pay for entertainment downloads given the right mix of value and convenience, though pricing and freedom from DRM remain sticking points. At the same time, lawsuits against individual alleged file sharers march forward, and the entertainment industry has not relented in its pursuit of what it perceives as Napster’s successors (e.g., Pirate Bay, Real DVD). Which prompts me to wonder: in the ten years since Napster sent the entertainment industry its wake-up call, has anything fundamentally changed?
[Update:] Or as Bob Lefsetz puts it: “So I just don’t understand this ten year period. What did the rights holders prove?”

March 31st, 2008

Sparks fly over copyright at Tech Policy Summit

Posted by Denise Howell @ 12:09 am

Categories: Conferences, Copyright, DMCA, Lawsuits, Licenses, MGM v. Grokster, P2P, Patent, User generated content, Video

Tags: Tech Policy Summit, TiVo Inc., EFF, Copyright Alliance, UCLA, Fred von Lohmann, Matt Zinn, Doug Lichtman, Patrick Ross, Copyright

The group of copyright scholars and advocates gathered Wednesday at the Tech Policy Summit in Hollywood demonstrated that while copyright must function in a converged world, opinions on how it should function are as divergent as ever. The panel (pictured from left to right) consisted of Patrick Ross (Executive Director, Copyright Alliance), Fred von Lohmann (Senior Staff Attorney, EFF), Matt Zinn (VP and general counsel, TiVo), and moderator Doug Lichtman of UCLA Law School.

I. Copyright Policy

The primary bone of contention was the extent to which copyright law does and should leave room for permissionless innovation. Matt Zinn and Fred von Lohmann discussed the benefits of such a system:

Zinn: Fortunately, the Constitution got it right. Copyrights are not absolute rights. TiVo did not have to go to the rightsholders for permission [to build a product that allows flexible use of lawfully acquired copyrighted content]. If they’d had to, there’d be no DVR. With no DVR, there’d be no VOD.

Von Lohmann: In recent years, the law has begun to appreciate the value of organically derived genius, the wisdom of the crowds. The copyright system is doing a surprisingly good joyb of creating rights that leave room for the kind of diverse marketplace [Matt] was just talking about. iTunes, TiVo, iPods, Betamax: all devices that depend or depended on copyrighted works for a large portion of their value, and that’s a good thing. Copyright law in its current form seems to trust markets quite a bit. This is not the death of copyright as we know it. In the room between the overreaching desire of rightsholders for control and what the law provides, innovation blooms.

Patrick Ross, while conceding von Lohmann’s point that "there’s no moral, ethical, or legal right to a business model," sought to reframe the issue, saying it’s not about business models, it’s about copyright:

Asking and getting permission is a key part of the system. . . . Where you get into a problematic situation is where the rights are being so abused and no legal authority is controlling it.

Picking up on Ross’ defense of a permission-based system, Doug Lichtman challenged Matt Zinn on his assertion that TiVo could not have gotten permission had it asked first. He posited that TiVo would have been a value proposition for the television networks, and they would have been willing to partner with TiVo and give back a share of the enhanced value they would realize by meeting the audience demand for such a service. Zinn disagreed:

In Hollywood, it’s not just about the money. It’s about all the money.

Von Lohmann concurred:

Disruptive innovation does not get blessed in incumbent industries. When the music labels tried it with MusicNet, PressPlay, and all the other companies that are now smoking holes in the industry, it didn’t work.

He went on to point out that one reason incumbent industries shun innovation is their reluctance to cannibalize their other businesses: here, sales of videocasettes, DVDs, etc.

At about this point in the discussion, Jay Williams of the MPAA stepped up from the audience to suggest Matt Zinn was being philosophically inconsistent about intellectual property, since TiVo recently won a patent battle with Echostar/Dish Network. "What are the value of those patents? Aren’t they barriers to innovation?" Read the rest of this entry »

September 15th, 2006

Blogging from the front lines of the RIAA wars

Posted by Denise Howell @ 6:26 pm

Categories: Blogging, Copyright, Live Web, P2P

Tags:

Yesterday, I glimpsed the phrase "Answers From Lawyers Who Defend Against RIAA Suits" on my screensaver, which displays Slashdot headlines via RSS.  When I had a little time later on I went to Slashdot and found the article; Slashdotters interviewed two lawyers from Vandenberg & Feliu, LLP in New York, Ty Rogers and Ray Beckerman, who are getting assignments from EFF to represent defendants "who have been sued by the Recording Industry Association of America (RIAA) for having computers whose internet accounts were used to access peer-to-peer file sharing accounts."  The Slashdot interview is terrific, featuring questions by turns intelligent, funny ("You guys are lawyers AND like to help people? What’s it like on your home planet ;) ?"), and frustrated.  All by itself, the interview is highly informative as to the issues involved in, and the logistics of, these cases.

But then I went and checked out the blog Messrs. Rogers and Beckerman have been writing for a little over a year:  Recording Industry vs The People.  WOW.  (*sigh* I remember when I was actually able to stay on top of all the law blogs, especially the really good ones, but this was my first visit to Ty’s and Ray’s.)  These guys are doing for the RIAA suits what Groklaw did for SCO v. IBM.  In addition to discussing interesting and/or important developments in all the related litigation, these two — armed primarily with Blogger + blog*spot + their brains and determination — are creating quite a valuable collection of resources for anyone following these cases, including:

• a directory of lawyers defending RIAA suits,
• an overview of how the RIAA litigation process works, and
• a comprehensive table of pending cases and related documents.

When folks like Ty and Ray narrate their work, everyone benefits.

September 5th, 2006

De-Groksterizing YouTube In Ten Minutes Or Less

Posted by Denise Howell @ 12:12 am

Categories: Copyright, DMCA, Free speech, Licenses, Live Web, MGM v. Grokster, Mashups, P2P, Tags, User generated content, Video, Vlogging

Tags:

Mostly anonymous intellectual property lawyer Ron from DC has an entertaining and informative clip on YouTube arguing that Tur v. YouTube should have a different outcome than MGM v. Grokster:

From the video:  "I do not believe Mr. Tur will be able to prove that YouTube has made money directly attributable to his video."  As Fred von Lohmann has written, this is a key factor in YouTube’s ability to invoke the DMCA’s online service provider safe harbor provisions, and as Fred further explains, the problem is "a bit [more] sticky" than lawyer Ron lets  on.  A fascinating upshot of Ron’s video is the creation of the "Friend of the Court Video" tag on YouTube:  an opportunity for YouTube users to tag their noninfringing works as such in support of the argument that substantial noninfringing uses preclude YouTube’s liability for contributory infringement.

Fred’s article concludes:  "YouTube’s investors poured another $8 million into the company in April, and you can be sure that money will go toward buying top-drawer copyright advice."  Among the first points YouTube’s  team will have to address is whether YouTube may in fact invoke the DMCA as a shield.  Plaintiff Tur’s lawyers have indicated they intend to argue otherwise:  "There are service providers — utility companies, so to speak — and there are content providers. And I would be very surprised at how [YouTube] could possibly qualify as an ISP within the meaning of (the act)."

Mack Reed has a related editorial in USC’s Online Journalism Review, Publishers vs. YouTube: Does either side win?, where he rightly points out that the more technology normalizes the "unauthorized propagation of information," the more the law is called upon to react and adjust.

September 2nd, 2006

Cory Doctorow Gets Congressional Seal Of Approval

Posted by Denise Howell @ 5:12 pm

Categories: Blogging, Copyright, DMCA, DRM, Free speech, Live Web, P2P, Podcasting, Privacy, Voice

Tags:

It’s somewhat old news that that Cory Doctorow was named the first holder of USC’s Canada-U.S. Fulbright Visiting Research Chair in Public Diplomacy, but this week it became official in a signing ceremony and talk, available as an MP3.  Cory is a creature of the Live Web, which both informs his fiction and helps chart his course (even if it does preclude him from coming up with a succinct description of his "profession").  In the wind up to Cory’s remarks, his colleagues point out that the United States Congress had to approve Cory’s involvement in the Fulbright program (I assume that’s true of all candidates, but not all candidates carry a metal card emblazoned with the Bill of Rights, "sure to spark conversation at the next security checkpoint!"), and that Cory had been in his new position for only a few days before taking his host university to task for its "bizarre, non-legal copyright policy."  I bring it up both to congratulate Cory and to recommend the talk, which provides good historical context for intellectual property disputes arising today, and touches on many issues critical to online activities:

This has become an issue in media studies, as scholars ask how it’s possible to create new media using new tools, when the copyright law reflects only the old media and the old tools.  It’s generally true that copyright protects an industry and not a culture, and an industry can be defined as what happens when art meets technology.  A non-industrial form of art can’t be an industry, almost by definition.  But the problem is that the people who have the industry today view what’s being done tomorrow as merely derivative.

(hint:  Cory’s the one whose neck can breathe.)