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Princeton computer science professor Edward Felten has posted on his Web site a summary of a study he and Princeton student Sauhard Sahi conducted involving BitTorrent, the peer-to-peer network protocol. Felten and Sahi summarize their study as an investigation into what types of files are available on the system:

BitTorrent is popular because it lets anyone distribute large files at low cost. Which kinds of files are available on BitTorrent? Sauhard Sahi, a Princeton senior, decided to find out. Sauhard’s independent work last semester, under my supervision, set out to measure what was available on BitTorrent. This post, summarizing his results, was co-written by Sauhard and me.

Sahi and Felten chose a random sample of files available “via the trackerless variant of BitTorrent, using the Mainline DHT. The sample comprised 1021 files. He classified the files in the sample by file type, language, and apparent copyright status.” The summary does not clearly identify the time frame (either in length of time, or the time of year) in which Sahi and Felten performed the study.

Summary of the Study Summary

In summary, Sahi and Felten concluded that nearly half the files (46 percent) in the study comprised of non-adult movies and “shows.” (We presume the scholars mean shows — either dramatic serials or game shows — that appear on television.) These category of content would include what the Copyright Act of 1976 defines in Section 101 as “motion pictures” (“Motion pictures are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.”) Adult films and computer games and software each accounted for 14 percent of the total files; music accounted for another 10 percent of the files.

The part of the Sahi-Felten study summary that seemed to garner the most attention was the section entitled “Apparent Copyright Infringement.” Wrote the scholars:

Our final assessment involved determining whether or not each file seemed likely to be copyright-infringing. We classified a file as likely non-infringing if it appeared to be (1) in the public domain, (2) freely available through legitimate channels, or (3) user-generated content. These were judgment calls on our part, based on the contents of the files, together with some external research.

…

Overall, we classified ten of the 1021 files, or approximately 1%, as likely non-infringing, This result should be interpreted with caution, as we may have missed some non-infringing files, and our sample is of files available, not files actually downloaded. Still, the result suggests strongly that copyright infringement is widespread among BitTorrent users.

In other words, the pair have drawn a preliminary conclusion that 99 percent of the files in this BitTorrent study infringed U.S. copyright law.

It is virtually impossible to discuss this study or its conclusion without reviewing the final paper, the data, and the data analysis that lead to the conclusions about “Apparent Copyright Infringement.” We and another reader have requested to review that information. We also specifically asked to see the coding sheets, the variables, and a closer look at the variable operationalizations; upon a second glance at the summary, we also would like to review the study design, particularly its sampling design.

(By the way, none of these requests are abnormal for social science studies. It is possible a reviewer may not request coding sheets, for example, but if coding schema are integral to variable operationalizations, then requesting the coding schema is not abnormal either.)

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Editor’s Note: Copycense executive editor K. Matthew Dames interviews William Patry a second time. (The first interview occurred in late 2006, and was published in 2007, the same year West Publishing released the multi-volume treatise Patry on Copyright.) This second interview, completed in late August 2009, deals exclusively with Patry’s new book, Moral Panics & The Copyright Wars (2009, Oxford University Press) [Amazon.com; Barnes & Noble; author’s book blog]

–

K. Matthew Dames: After writing several scholarly works and treatises (including the current Patry on Copyright and the revised Patry on Fair Use), Moral Panics and the Copyright Wars is your first general market book. Why this book at this time?

William Patry: I have been concerned for awhile about the type of discourse used in the debates about copyright. I thought and still think it is generally unhealthy, and in some cases, deliberately unhealthy. George Orwell once wrote that words can corrupt thought, and I believe this has happened in the copyright debates. I set out to find out why this was going on, and how to change the discourse by making it healthy again.

Dames: Moral Panics … opens with a discussion of business models, and your general argument that copyright law has been used too often to control what consumers do with products, rather than encouraging platforms that give (paying) consumers what they want. This book also was researched and written during a time when, for the first time, you have been in-house counsel to a technology company. To what extent did your work as a business lawyer spur your research into business models?

Patry: I have been privileged to work in lots of difference environments: private practice, government service, academia, and now in-house. You learn a lot from each experience. Certainly the greatest benefit to being in-house is learning business stuff, so being in-house has definintely sensitized me to business issues in a way I wasn’t before. I hope that is helpful too for readers.

Dames: In Moral Panics …, you spend a lot of time discussing language and rhetoric. How did you become interested in this area?

Patry: I became interested because language and rhetoric is so prevalent in the copyright debates and has driven policy decisions, something I think is regrettable.

Dames: Moral Panics … also includes several extended discussions about how language is used to shape the parameters of debates and political issues. In your former work with the House of Representatives, you must have heard several interesting arguments or statements. In your view, which person or organization has been the best at using language to best articulate their point of view and why was that person or organization so effective?

Patry: George Lakoff, a very liberal Democrat and a cognitive linguistic, has written extensively about how conservatives are masters of framing political debates, and I would be surprised if many disagreed. As the opposition now, of course, they don’t have responsibility for actually accomplishing anything, which gives them a lot more room to maneuver.

Dames: On page 29 of Moral Panics .., you write

The response of the heads of these companies to the youthful rebellion of democratizing content on the Internet has been that of may parents worldwide: to fight against the present, to try to ban the future, and to punish those audacious enough to challenge the status quo. The Copyright Wars are a fight against our own children, and it is a fight that says everything about adults and very little about the children.

As a father who purchases lots of books, films, and music for your children — and as a scholar who has objected to “educational” initiatives geared toward children like “Kopyright Kids” and “Captain Copyright” — what conversations do you have with your children about copyright and what their relationship is, or should be, with protected works?

Patry: I think parents have a great deal of responsibility, really the primary responsibility, which should be exercised both by example and by ensuring their kids act responsibly.

Dames: If you had one resource to recommend to your children to teach them about copyright, what would it be?

Patry: Creating something themselves and figuring out how they wanted it used by others online.

Dames: In Moral Panics …, you talk a lot about the consumer, the purchaser, and the end user and their relationship (or lack of relationship) with copyright law. Historically, copyright law and policy in the United States have been debated and discussed in a way that presumes the sole affected audience is large, corporate copyright owners, and you and University of Michigan law profession Jessica Litman have written about the legislative process that goes into making copyright legislation. Further, you have written about the current national copyright reform conversation occurring in Canada. What elements or conditions do you believe would need to exist in the United States so that a similar conversation or reform effort may occur?

Patry: I think that Michael Geist in Canada has shown the short of grassroots movement that is effective, and I think technology companies need to educate policymakers about what they do, in detail.

Dames: What issues are not addressed in the book that you wish you had addressed?

Patry: There are two: Marissa Mayer‘s theory of the atomic unit of consumption [.pdf], and the discsussion by Gwenyth Jackaway in her 1995 book called Media at War: Radio’s Challenge to the Newspapers, 1924-1939. (See Slate article.) Her book is a great example of what I am talking about in a different era.

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Editor’s Note: William F. Patry has a new book out entitled Moral Panics & The Copyright Wars (2009, Oxford University Press) [Amazon.com; Barnes & Noble; author’s book blog]. Patry, one of this nation’s foremost authorities on copyright, also is the author of the eight-volume treatise Patry on Copyright and serves as the senior copyright counsel for Google, Inc.

Copycense executive editor K. Matthew Dames interviewed Patry in late 2006; the interview was published in June 2007, the same year West Publishing released Patry on Copyright. Since then, West has republished Patry’s book on fair use, Patry on Fair Use.

Here, we republish the interview between Dames and Patry in its entirety on Copycense for the first time, updating where appropriate and adding new, previously unpublished material from the original 2006 transcript. Links to entries in Patry’s now retired blog, The Patry Copyright Blog, are made where appropriate. Copycense has arranged to interview Patry again about Moral Panics; that interview will occur and be published soon.

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Normally, this post would be something best left to someone like William Patry, whose credentials on copyright are above reproach. Lawrence Lessig has responded to Helprin in a contemporary and ingenious way, but Lessig’s main focus now has moved from intellectual property matters to what he has called “corruption” (and what Harvard Law School, his new employer calls “a major five-year project examining what happens when public institutions depend on money from sources that may be affected by the work of those institutions”).

We are nowhere near the orbit of either Patry or Lessig when it comes to issues of copyright theory and history. We do think, however, we have some reasonable ideas and knowledge about the American copyright system and its increasing imbalance. And consistent with the the expectations the public should have of scholars and journalists, we don’t just spew: we back up our assertions with the best information we have available at the time.

Therefore, since Patry and Lessig are doing other things, we feel obliged to address Mark Helprin’s of editorials on the U.S. copyright system, the most recent of which was published in the May 11 edition of the Wall Street Journal.

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Copycense and its executive editor, K. Matthew Dames, have been noted by The New York Times’ Freakonomics blog for our two-year coverage of the misuse of the term “piracy” in connection with intellectual property. The Freakonomics blog also cites Dames’ working paper of the history of the term piracy, both in the English language and in American legal usage.

Related:

– Freakonomics blog (The New York Times). Pirates Steal Ships, Not Songs. April 23, 2009.

– K. Matthew Dames. The Etymology of Piracy (working paper). SSRN. April 21, 2009.

– Copycense. Dismantling the Frame of Piracy. April 18, 2007.

– K. Matthew Dames. Framing the Copyright Debate. Information Today. September 2006.

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Technorati Tags: Copycense, framing & rhetoric, Freakonomics blog, K. Matthew Dames, piracy, The New York Times

We presume Twitter is devoid of any seriousness, but we realized we unintentionally opened a can of thorny theoretical and doctrinal questions last week when we posted the following rhetorical question (or, rather, something quite similar) to our account:

Is copyright an exception to the public domain, or is the public domain is an exception to copyright?

Granted, we’re currently engaged in a project that has us pondering this sort of question in the first place. But we think your answer to this question says a lot about your normative view of the copyright regime. While we have some thoughts about how we may approach answering this question, we do not have an opinion as to which answer (or underlying rationale) is “correct,” if any answer is “correct” at all.

Ultimately, though, since copyright officially touches so many aspects of contemporary, everyday life (for example, see John Tehranian’s interesting analysis of this issue), we think this is a question that people affected by copyright should consider and answer.

Copycense™: Incisive IP.™

Yahoo! News (via The Associated Press). MPAA Admits Mistake on Downloading Study. Jan. 23, 2008; Inside Higher Ed. Downloading by Students Overstated. Jan. 23, 2008; Association for Computing Machinery. MPAA’s Data Oops: How Will Congress React? Jan. 23, 2008; News Blog (News.com). Why Did Colleges Stay Mum on MPAA Stats? Jan. 25, 2008. We don’t think this is a mistake, actually. For several years, we have questioned as biased and invalid many of the “studies” the entertainment industry creates that purport to show a correlation between alleged infringement activity from a specific environment (i.e. file sharing networks) or population (i.e. college students). More investigation should be done into the numbers and methodology of these reports, especially since the entertainment industry parades them before Congress as evidence that it needs more restrictive intellectual property rights. If you think there is no connection between these sorts of studies and legislation like the PRO IP bill (H.R. 4279) or the HEA Reauthorization bill, think again.

(Editor’s Note: Copycense editors originally commented on this article in the Jan. 29, 2008, edition of Copycense Clippings.)

Copycense™: Incisive IP.™

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