Cites & Insights: Crawford at Large
ISSN 1534-0937
Libraries · Policy · Technology · Media


Selection from Cites & Insights 5, Number 7: May 2005


©3: Balancing Rights

For some people it’s simple.

Ø    If you’re a songwriter or RIAA/MPAA member with the attitude that creative works are property, the only rights at issue are yours as the property owner. You should be able to control every use and copy made of your property, charge whatever you want, and prevent any use you deem inappropriate—and your heirs should have the same rights in perpetuity.

Ø    If you’re a digital-rights extremist, the fact that copying most “intellectual property” doesn’t modify or eliminate the original property means copyright is irrelevant. If something can be copied at no real cost, then it’s appropriate to copy and reuse it.

Most of us fall somewhere in the middle. I assume that most readers of Cites & Insights fall somewhere in the middle. If you’re a digital-rights extremist, my use of the Creative Commons license is irrelevant: How can I stop you from doing whatever you want with the material? If you’re a “property”-rights extremist (and overlook the fact that many kinds of real property have restrictions on the use or control of that property), my use of the CC license is inappropriate, some kind of socialist gesture.

I have no ideal solution for the balance of rights. I’m not sure anyone does. As a creator of sorts, I understand that distribution is a great publicity tool—that I benefit from a certain amount of unintentional distribution, as long as it doesn’t swamp the paid, legitimate distribution. But that’s not the same as saying that all copying should be legitimate.

I suspect EFF is too radical on one side for my taste. I know much of Big Media pushes too hard in the other direction. This section of Cites & Insights copyright coverage looks at strains in one direction or another as various groups try to increase their rights to use or control copyright material. Very few issues fall neatly into this area; I’m slotting material based on what feels like the dominant thrust of the issue.

Piracy, Infringement, and Peer to Peer Networking

My personal distinctions in this area:

Ø    Allowing someone else to copy material that you know to be protected by copyright is frequently infringement. I don’t condone it—but I do object to calling it piracy.

Ø    Piracy as a term should, I believe, be reserved for commercial large-scale infringement, such as bootleg DVDs and illicit CDs of software or music. I wouldn’t argue with using “piracy” to refer to all commercial infringement, but I think scale enters in as well.

Ø    Peer-to-peer networks have many legitimate uses—but it’s probably true that they’re heavily used for large-scale casual noncommercial copyright infringement.

Ø    I don’t condemn the RIAA for suing those who have knowingly made large quantities of copyright material freely available for others to copy. I do think they’d be better off attacking real pirates (which they and the MPAA certainly do) and spending less time hassling would-be customers and trying to get draconian legislation passed.

Deliberate infestation

Ed Felten posted “Recording industry publishing infected P2P files?” at Freedom to tinker on January 3, 2005 (www.freedom-to-tinker.com). He cites a PC World story saying the industry may be publishing copies of songs that are heavily infested with spyware.

The files are encoded in a Microsoft file format. When the user plays such a file, the user’s browser is forced to visit a URL contained in the file. For the files at issue here, the page at that URL uses various spyware-insertion tricks to try to infect the user’s machine with standard spyware programs.

According to Ben Edelman, one such page contaminated his computer with “the most spyware programs I have ever received in a single sitting, including at least the following 31 programs…” The story also notes that for at least one such file, the spyware page is hosted by Overpeer, “a company that does lots of business with the recording industry.” Overpeer spreads “spoofed” files on P2P networks, for example.

Felten wonders who approved the release of these infested files onto P2P networks. If Overpeer didn’t have the permission of record companies, then it was infringing copyright. If it did have that permission, then there may be a different problem.

The shadow internet

Here’s one that may be worth reading and that I don’t fully understand. Jeff Howe’s article in Wired Magazine 13:1, named above, describes “pirate networks that are terrorizing the entertainment business” and specifically “topsites” that Howe asserts are really the source of “nearly all of the unlicensed music, movies, and videogames available on the Internet.”

The story’s interesting, but it seems to describe a set of large-scale commercial operations, the kind that produce pirated DVDs and CDs for profit. There’s an estimate that this “media darknet distributes more than half a million movies everyday”—but most knowledgeable people say it’s absurd to try to download movies with DVD quality or anything close to it. Is this article describing peer-to-peer sources?

DRUMS: In search of a file-sharing solution

Scott Matthews and friends are trying to establish a true middle ground: an “increasingly detailed, compelling, and plainly productive step toward resolving the mess of the copyright wars.” The proposal, at www.turnstyle.com/DRUMS/, is a new “centralized/distributed metadatabase of authored works” vaguely modeled on DNS; DRUMS stands for Digital Rights Uniform Metadata Service.

Essentially, the idea is to create a central database, along with an authority (or a handful of authorities) that can add/update it. The root DRUMS database would likely include data such as author names, work titles, publication dates, types of work, file checksums, flags indicating which rights remain reserved and which rights have been granted, and so on. It would not contain the actual works themselves.

The root DRUMS database could then be propagated out across the Internet, in a fashion similar to DNS propagation. These distributed DRUMS databases could be queried via a simple and standard protocol, and/or portions of them could be published via protocols such as XML/RSS.

The proposal does nothing to “resolve the P2P situation,” but provides a new platform for applications and services. It’s similar to a central database for Creative Commons-licensed media, but going a little further—at least by providing an easy way to locate the rightsholder for a given work.

Joho the blog—that is, D. Weinberger, who says, “I am a free culture hippy”—has a February 8 entry wondering what an authorized registry would do that Creative Commons licenses don’t already do. Matthews says, “Think of it as a common resource pool…” and as adding a bit of infrastructure to CC. “Each CC work is essentially an island—think of this as making them all one big archipelago.” Two pages of comments follow, with Scott Matthews responding to several of them. For example, while CC does have a search engine, that engine “won’t ever include non-CC works” and doesn’t provide a way to build applications on top of it. Sébastien Paquet suggests that one approach might be generalizing the CC concept, then using spiders to build databases. Matthews wonders whether such a system could be sufficiently trustworthy but notes that it’s an interesting idea.

Patrick Ross at IPcentral.info discusses DRUMS in a February 8, 2005 post. He notes that he’s looking for a middle ground, although he continues to find people on both sides who insist that there is no middle ground. He goes on to anticipate problems with DRUMS, some of which I find questionable if Ross really is looking for a middle ground, e.g.:

3. Ensuring DRUMS doesn’t undermine the copyrights inherent to creative works not registered in DRUMS.

Since DRUMS is proposed as a voluntary registry, this looks like a red herring, as I’d expect from a copyright hardliner claiming to look for middle ground.

Siva Vaidhyanathan weighed in on February 9, 2005 at Sivacracy.net (www.nyu.edu/classes/siva/). He suggests ruminating on new ideas like DRUMS instead of shooting them down, but goes on to slam “the ad-hominem-addicted hacks at the Progress and Freedom Foundation.” I sense a bit of ad hominem in this posting as well. (Given that Siva V. capitalizes Free Culture Movement and talks about “my side,” I’m guessing he’s closer to the “copyright is irrelevant” side than I am. I haven’t read much of his stuff. I used to check Sivacracy but gave up on it months ago. Consider that my limitation.)

Random weirdness

Copyfight had a marvelous entry on February 6, 2005: “RIAA sues dead people.” Apparently, one of the thousands of RIAA suits was against an 83-year-old woman who died last December, claiming that she made more than 700 songs available on the internet. That’s not the heart of the posting, which is about the general success of RIAA’s mass lawsuits and the problem with that approach to “solving” the P2P problem.

Karl Wagenfuehr put together a cute table comparing shoplifting a DVD vs. downloading, which Cory Doctorow posted at boingboing on February 10, 2005. The conclusion: Shoplifting is much safer. The minimum and maximum penalties for shoplifting pale beside the penalties for infringing.

Digital Rights/Restrictions Management

Lots of miscellaneous items in the most intractable area of rights-balancing for digital media.

Ø    John Borland wrote “New CD copy-lock technology nears market” on December 16, 2004 at news.com. These pseudo-CDs would be the first Sony-label “protected CDs” in the U.S. (and may be on the market, for all I know), although BMG, now part of the same company, released some deliberately-defective discs last year. Supposedly, the new technology, from First 4 Internet, “wraps ordinary songs in strong encryption, but in a way that still allows regular CD players to read them.” That’s quite a claim. More later?

Ø    I remember an odd Wired special issue that was sent to former as well as current subscribers and consisted entirely of favorable reviews of hot new gadgets. Cory Doctorow was unhappy that Wired didn’t seem to care about DRM as it was reviewing “devices that are all crapped up with studio-paranoia-generated restriction technology.” As related in a December 29, 2004 boingboing post, Chris Anderson of Wired responded that he takes a “middle ground” position—but Doctorow asserts that it’s a false middle ground. While I increasingly regard EFF as radical or at least unreasonable in some of its tactics, I think Doctorow’s right on this one. For example, Anderson’s basic argument is, “much as we might want it to be otherwise, content owners still call most of the shots. If a little protection allows them to throw their weight behind a lot of progress towards realizing the potential of digital media, consumers will see a net benefit.” But the whole point of DRM is to limit the potential of digital media—and it’s mostly a Wired assumption that digital media are automatically better. Doctorow points out that DRM isn’t protection against thieves; it’s only a way to “keep honest people honest” (which Ed Felten pointed out is like keeping tall people tall). “DRM isn’t protection from piracy. DRM is protection from competition.” As for content owners calling most of the shots, Doctorow notes that record companies didn’t get to design record players, film studios didn’t get to ban VCRs (though they tried!), and that the RIAA still hasn’t been able to make MP3 go away. “This is a profoundly ahistorical proposition. Never in the history of media from the dawn of the printing press right up to the invention of the DVD have we afforded this kind of privilege to incumbent rightsholders.” There’s more, including the astonishing fact that HBO turned on a cable flag midway through the Sopranos season that prevents you from burning PVR-recorded episodes to DVD—and another show that will disappear from your PVR two weeks after it’s aired, whether you’ve watched it or not.

Ø    A little later (January 24, 2005) Doctorow reminded us, “You’re a sucker if you believe no-DRM, no-release threats from Hollywood.” The studios and networks have consistently threatened that “high-value” content would be withheld from broadcast TV if the broadcast flag wasn’t implemented. Viacom (owner of CBS) flatly said in a December 2002 filing that CBS “will cease providing any programming in high definition for the 2003-2004 television season” if the broadcast flag wasn’t in place by summer 2003. Pretty much the entire CBS prime-time schedule continued to be available in high-def in 2003-2004: The network was a leader in making a broad schedule available, and the DRM case was pure bluff.

Ø    The ever-thoughtful Prof. Edward W. Felten (normally “Ed Felten” in these pages, but he deserves proper respect once in a while) posted “Groundhog Day” at Freedom to tinker (www.freedom-to-tinker.com) on February 3, 2005. He suggests that SunnComm might consider the holiday to be more like the movie, where you keep repeating the same unpleasant events over and over. SunnComm’s announced a new “copy protection” technology that might not rely on people leaving Autorun in place (or disabling it with the Shift key when inserting the CD), as the previous “protection” technology did. Felten notes that other CD-DRM technologies rely on data errors that would be ignored by regular CD players but would prevent CD-ROM drives from making clean reads. As he notes, that never worked very well—partly because lots of portable and other CD players use computer CD drives, making these pseudo-CDs unplayable, but mostly because defect-reading problems tend to get corrected. Reading the PR for the new technology, Felten concludes that it will inherently have the same problems.

Ø    Scientific American editorialized on February 14, 2004, “Beyond the big ©: Copyright becomes ‘no right to copy’.” The piece starts by noting that Romeo and Juliet was adapted from Arthur Brooke’s poem The Tragicall Historye of Romeus and Juliet (itself based on a French translation of various Italian stories), so that a contemporary Shakespeare “would be spending a lot of time with lawyers. After briefly noting recent trends in copyright legislation, the editorial says, “Copyright in its current form fails to strike a balance between the extremes of allowing total control over every work—‘all rights reserved’—and an anarchic system in which pirates steal wantonly without recompense to owners. Overly strong property rights can threaten the Internet as a medium capable of fostering dynamic interchange of ideas.” Nicely put. The editorial goes on to mention Creative Commons, BBC’s plans to make archival material available for noncommercial use, and the need for the internet to be “more than an outlet for commercial interests.”

Ø    Good old Macrovision. According to Ed Felten’s February 15, 2005 post, they’re at it again, with a new passive anti-copying technology for DVDs: RipGuard, which “tries to code the DVD data on the disc in a way that triggers bugs in popular DVD ripping programs, while remaining readable on ordinary DVD players.” It’s more ludicrous than most, even though RipGuard could be modified: Most ripping programs are legally questionable in the U.S. anyway, and it’s fair to assume they’ll be updated as quickly as the bugs are encountered. Macrovision can’t change the program on already-released DVDs. The most this can do is inconvenience honest people while having little or no effect on pirates.

Is DRM evil?

Getting back to the first Cory Doctorow item, Chris Anderson’s post carried the title above and appeared on December 29, 2004 on The long tail (of course Anderson is writing a blog as he turns a decades-old truth about most media into a hot new Wired-approved book), longtail.typepad.com/the_long_tail/.

You’ve already read portions of Doctorow’s response. Anderson asserts that Wired is “unashamedly activist on issues we believe in, and DRM abuse is one of them. It’s just that we take a more pragmatic stance to serve a more mainstream audience.” He goes on to offer a confused combination of pro-Lessig but also pro-DRM because it’s “pro-consumer” rhetoric. Here’s one of those quotes that sends middle-of-the-roaders like me up the wall:

The real question is this: how much DRM is too much? Clearly the marketplace thinks that the protections in the iPod and iTunes are acceptable, since they’re selling like mad. Likewise, the marketplace thought that the protections in Sony’s digital music players (until recently, they didn’t support MP3s natively) were excessive and they rejected them.

Give me a break. How many iTunes users make conscious decisions that Apple’s level of DRM is “acceptable,” as opposed to not thinking about it? For that matter, if the iPod didn’t support MP3, would it really be selling that well? Anderson gives the game away almost immediately: He bought a Media Center 2005 PC “to serve as a central tv/video/music/photo server for or house.” He loves it. It streams “content” to various boxes and to TVs. “It has some DRM restrictions, including not streaming DVDs over the network…but nothing I care about that I can’t work around in one way or another.”

I’m not sure what to say here. He’s got a “central [media] server” that can’t be used for DVDs. Or, presumably, for any other stuff with DRM. If he’s “working around” it with software—that’s probably a DMCA violation. So why didn’t he go with a DRM-free media server, this editor who believes “the market” is the appropriate place to decide how much DRM is too much? “I just can’t be bothered.”

“Did I sell my soul to the Man? No, I just got a cool technology that makes our life a little bit better. In the real world, that counts as a win.” And, in the process, sold your technological future to the Man. You don’t have to be as far to one side as EFF to see what’s wrong here.

Digital rights management: A failure in the developed world, a danger to the developing world

That’s the title of a lengthy paper prepared by the Electronic Frontier Foundation and a group of other organizations, intended for the International Telecommunications Union, ITU-R Working Party 6M Report on Content Protection Technologies. You’ll find it at www.eff.org/IP/DRM/itu_drm.php.

The executive summary is three pages of bullet points working off the primary premise:

This paper discusses the failure of DRM in the developed world, where it has been in wide deployment for a decade with no benefit to artists and with substantial cost to the public and to due process, free speech and other civil society fundamentals.

No benefit to artists: that’s a strong claim. At the end of the summary is this paragraph, which makes the claims even stronger:

Policy-makers around the world have to juggle many priorities: industry, public interest, cultural preservation, education, and so forth. DRM has been positioned by its adherents as a system for accomplishing many of these goals with little cost. In fact, the reverse is true: DRM exacts a terrible cost to the public, to performers and authors, to educators and cultural institution [sic], and it delivers nothing in return. DRM is a system for delivering less freedom to performers and authors and the public while charging more. It is all cost, no dividend.

Does the paper make that extreme case? You’ll have to read it yourself: I’m not prepared to offer a conclusion. It certainly includes some strong examples of the cost of DRM and the ways it discourages innovation. It’s worth reading.

Everything Else

Sometimes-brief comments on a range of documents and reactions, not all of them brief.

Righting copyright: Fair use and “digital environmentalism”

This Robert B. Boynton essay appears at www.bookforum.com, as part of Bookforum’s February/March 2005 issue. Boynton starts with, “Who owns the words you’re reading right now?” and explores that question a little: If you purchased a copy of Bookforum you can lend or sell it to anyone; you can link to it on the internet but can’t duplicate the whole thing on your web site without permission; you can copy it for teaching purposes but not sell those copies—but if Boynton made the pages into a collage and sold it, the customer couldn’t alter the collage.

Boynton claims that the “logical goal” of Google Print is to give readers “full access to the entire contents of that library,” and says this goal “will be undercut by our intellectual property laws.” This assumes a lot about Google Print’s logical goal—and his further note that someone will develop software to link Google Print to a convenient PoD service seems to suppose that Google won’t link to a PoD service itself. I think it likely that Google will do exactly that, at least for out-of-print books.

Boynton notes some “copyright horror stories” and Richard Posner’s argument for strengthening fair use and invoking the “doctrine of copyright misuse.” Some good stuff here; worth reading.

Does first sale apply to DVDs?

The proprietor of FurdLog (msl1.mit.edu/furdlog/) posted a puzzled entry on March 14, 2005, “‘First Sale’ and DVDs?”—noting an odd comment in a news.com item that day:

Selling a used DVD outright can be legally iffy, as it gets into complex copyright issues, but Peerflix offers a way around the sticky legalities.

The story was about Peerflix (an odd site for trading DVDs) and other new entrants into unusual movie distribution. The blogger prefaced a lengthy quote with “I’m not sure where this article comes off arguing that ‘first sale’ doesn’t apply when it comes to DVDs, but I expect I’ll get an answer soon enough.” After the excerpt comes this: “Something in the EULA/shrinkwrap that I missed? Why doesn’t ‘first sale’ apply to DVDs?” The blogger then suggests a possible link to a March 1997 article from Mitchell D. Kamarck of Rosenfeld, Meyer & Susman, LLP, “specializing in intellectual property and entertainment-related litigation.”

That article, pretty clearly written from an absolutist perspective on intellectual property rights, celebrates the forthcoming downfall of the First Sale Doctrine in the U.S.—and suggests that the Clinton administration “retreated from recommending abolishing the First Sale Doctrine altogether” because of the political clout of the videocassette rental industry.

Though the rental industry won the war over [the IP rights report], it will lose the war with the advent of DVD. Unlike the videocassette format, the DVD format can exploit existing exceptions to the First Sale Doctrine: the rental records and computer software rental exceptions. Both of these exceptions were created in response to growing record and software rental markets that prevented the copyright owner from realizing the full value of a copy of the work upon the first sale of that work.

That rhetoric should tell you all you need to know about Kamarck’s stance: If you resell something you legally purchased that happens to be (or, actually, contain) copyright material, you’re depriving the copyright owner of a part of the “full value” of that copy. No rental (without special license), no resale, and—I would assume—none of that socialistic free lending by public libraries. (Doesn’t that also “prevent the copyright owner from realizing the full value”?)

Kamarck goes on to discuss the success of the recording industry in gaining a special law in 1984: You can’t rent sound recordings. It was a pure power grab, and it worked. (Ever wonder why there are no CD rental stores? That’s why.) In 1990, computer software makers made a similar grab, possibly with better justification—which is why you can’t rent software either (unless you’re renting access to the use of software).

The article—which you can find at www.rmslaw.com/articles/art65.htm—celebrates the likelihood that the motion picture industry will exploit either or both exceptions: Providing the option of listening to a DVD soundtrack without watching the movie, then claiming that this makes the DVD a sound recording, or providing embedded software for viewing options and claiming that this makes the DVD a computer program. Kamarck goes on to predict that this means studios will only produce $20-$30 DVDs for the few movies that will predictably sell in the millions (with those DVDs including “no permission for rental”) and sell the same movies, plus all the other movies, at much higher prices to rental stores (with permission to rent).

In any case, the article continues, First Sale will go away “because of international pressures” thanks to trade agreements and the like.

It’s interesting to read a hard-core copyright advocate celebrating the demise of customer flexibility. There are two fundamental problems here, one general and one specific to the news.com piece:

Ø    Kamarck’s article appeared eight years ago—at the dawn of the DVD industry. Given the, um, careful attention to enhanced revenue possibilities displayed by MPAA, isn’t it astonishing that NetFlix (and its competitors) exist, and that Blockbuster primarily rents DVDs and computer games at this point? I don’t remember hearing of multi-billion-dollar suits against NetFlix or Blockbuster.

Ø    Apart from the fact that there is no EULA on a shrinkwrapped DVD, the sound recording and computer software rental exemptions do nothing to eliminate the remainder of the First Sale doctrine, specifically your right to sell something you purchased. There’s no indication that selling a used DVD is any more “legally iffy” than selling a used book.

If that last statement isn’t true, I’d expect additional huge lawsuits against SecondSpin, half.com, and eBay, just to name a few.

CEA’s Declaration of technology independence

The Consumer Electronics Association is hardly some socialist fringe group. It’s composed of businesses, many of them big—the companies that make audio, video, home theater, gaming, and other electronic equipment. When it comes to copyright, CEA tends to argue for balance—because the organization knows that unbalanced copyright will interfere with the freedom of its members to innovate and sell new products in an open market.

The brief essay introducing this Declaration, posted March 16 at www.ce.org/publications/vision/ 2005/marapr/p06.asp, includes this paragraph:

We need to advance the fight against the unbalanced importance given to protection of IP and the increase in litigation against innovators. Public policies should encourage innovation and allow people to make full use of the opportunities provided by new technologies. IP issues need to be redirected to focus on encouraging and advancing creativity rather than on protecting existing business models.

The Whereas portion includes seven paragraphs about the Betamax holding and the “revolutionary technologies” that have resulted, and the extent to which Big Media has “resisted, opposed or sought to stifle new technologies and products, despite the fact that these technologies transform markets and create new avenues for profitable content creation and distribution.” Two notable (non-adjacent) paragraphs:

Our nation attracts the world’s smartest and most innovative people because our society embraces and encourages entrepreneurship. Our nation of immigrants has created the world’s largest technologies and communication systems. Currently, our leadership is being threatened by the content industry’s misguided attempts to protect intellectual property…

…[F]alse equations have been drawn between intellectual property and real property, noncommercial home recording and commercial piracy, and national creativity and sales of particular products and formats, such as CDs.

The “Therefore” clauses boil down to six requests of policymakers, copied here in full:

Ø    Recognize that our founders instituted copyright law to promote creation, innovation and culture rather than to maximize copyright holders’ profits, and that it can do this only if new technologies are not stifled and fair use rights are upheld;

Ø    Reaffirm the Betamax holding that a product is legal if it has significant legal uses;

Ø    Resist pleas by big content aggregators for new laws, causes of action, liabilities and ways to discourage new product introductions;

Ø    Re-establish the fundamental rights of consumers to time-shift, place-shift and make backup copies of lawfully acquired content, and use that content on a platform of their choice;

Ø    Re-examine the length of the copyright term and explore avenues for content to be readily available for creative endeavors, scholarship, education, history, documentaries and innovation benefiting society at large; and

Ø    Realize that our nation’s creativity arises from a remarkable citizenry whose individuality, passion, belief in the American dream and desire to improve should not be shackled by laws that restrict creativity.”

That’s not a bad prescription for balanced copyright—and it comes from big business. But not Big Media. As always, one wonders where Sony is in all this…

Reproduction of copyrighted works by educators and librarians

Just a quick note on this 22-page PDF, “Circular 21” from the United States Copyright Office. It’s dry reading but may be useful when you’re considering difficult issues relating to fair use and photocopying. The circular, available at http://www.copyright.gov/ circs/circ21.pdf, brings together “some of the most important legislative provisions and other documents dealing with reproduction by librarians and educators”—including some history of the discussion surrounding legislation, particularly in those cases where the House and Senate disagree. Hard reading but potentially very useful.

Cites & Insights: Crawford at Large, Volume 5, Number 7, Whole Issue 63, ISSN 1534-0937, a journal of libraries, policy, technology and media, is written and produced by Walt Crawford, a senior analyst at RLG.

Cites & Insights is sponsored by YBP Library Services, http://www.ybp.com.

Hosting provided by Boise State University Libraries.

Opinions herein may not represent those of RLG, YBP Library Services, or Boise State University Libraries.

Comments should be sent to wcc@notes.rlg.org. Cites & Insights: Crawford at Large is copyright © 2005 by Walt Crawford: Some rights reserved.

All original material in this work is licensed under the Creative Commons Attribution-NonCommercial License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc/1.0 or send a letter to Creative Commons, 559 Nathan Abbott Way, Stanford, California 94305, USA.

URL: citesandinsights.info/civ5i7.pdf