COPYCENSE

This week’s edition of Clippings features extended commentary on our three Articles of the Week; an update on Radiohead’s online distribution play; Tim O’Reilly analyzing e-book possibilities in the face of the Kindle’s introduction; and two thumbs down for the Copyright Office’s online registration system.

This is Copycense.

Articles of the Week

The Iconoclast (News.com). Major Copyright Bill Boosts Penalties, Creates New Agency. Dec. 5, 2007. Intrepid News.com tech reporter Declan McCullagh summarizes the entertainment industry’s latest legislative gambit, called the “PRO IP” bill. All the usual monopoly enforcement and extension concessions are present in “PRO IP,” but the kicker is the creation of a Cabinet-level post that would serve as the president’s principal advisor and spokesman for intellectual property matters, as well as identifying countries that don’t adequately protect IP rights. This is particularly important, since American intellectual property law now is one of America’s chief exports, courtesy of the Trade Representative‘s Special 301 process. Arguably, this new post — which McCullagh says would have an initial budget totaling $25 million — would supplement the Trade Representative’s efforts to make U.S. intellectual property law the global standard.

It does not concern us that the entertainment industry is trying once again to make copyright law even more restrictive than it is; to echo a Chris Rock skit, this is what the entertainment industry is supposed to do. Instead, what concerns us is the ventriloquist-like effect the lobby has on members of Congress, who seem to mindlessly parrot the industry’s propaganda about things like “global competitiveness,” “piracy,” and “economic losses.” The industry’s “evidence,” so much of it without a shred of empirical or objective validity, should not be the basis for public policy. Categories: Bundle of Rights; Legislation & Regulation; Politics & Government.

Eric Bangeman. Colleges Serious About Dealing With Copyright, P2P Issues. Ars Technica. Dec. 5, 2007. Now that we’ve ranted about the entertainment industry’s use of meaningless statistical data, we voice similar concerns about the Brandeis University DMCA survey. Survey studies are like teaching: easy to do, difficult to do well. This study has some holes in it. The first thing that concerns us is the low number of respondents (79); that is too few from which to make reasonable popular generalizations. The second issue that concerns us is the nature of the questions themselves. For example, Question 2 asks “What non-punitive measures have you taken to reduce DMCA complaints?” Two of the possible responses mention “education.” What is copyright “education”? How is it done? How often? Who does it? Are rights and exceptions reviewed in the educational initiative? There are too many questions to answer.

Third, the researcher does not make clear what he intended to measure with the questionnaire. Finally, it alarms us that Question 6 begins with the phrase “If you have a DMCA agent …” If you run a network and do not have a DMCA agent, that is a problem: you’ve lost “safe harbor” protection under Section 512(c). We applaud Brandeis for having the idea and taking the initiative. This is the sort of data educational institutions should be gathering on their own initiative. Unfortunately, the strength of the idea is diminished by weak execution, leading to meaningless data. Ultimately, this survey cannot say conclusively whether or not colleges are serious about dealing with copyright issues. Categories: Computers; DMCA; Education; Networks; Research.

TorrentFreak. Charity Forced to Pay Copyright Fee So Kids Can Sing Carols. Dec. 9, 2007. “Happy Birthday,” the sequel. We can’t imagine this stuff. Categories: International; Music; Licensing & Permissions.

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When Macrovision, the content control company, buys TV Guide, it is reasonable to ask to what extent will Macrovision implement DRM in a way that could force electronics manufacturers to engage in what writer Saul Hansell calls “electronic vigilantism.” Hansell notes this is no longer a theoretical concerning, pointing to Boing Boing’s post about a new Western Digital computer network hard drive that blocks music and video files because of “unverifiable media license authentication.”

Practically speaking, that’s a technologically complex way to say if I buy Season 4 of The Wire on DVD, and I want to rip it to QuickTime to play on my computer — a common, totally reasonable action that Time Warner likely would claim is de facto illegal — then at some point, I may be unable to because my computer would reject that file as “unauthorized.” And if I try to break the encryption code, I violate the Digital Millennium Copyright Act.

That’s patently unreasonable to the point of being stupid. And this, we posit, is a primary reason why so many people ignore contemporary copyright: it has become so ridiculous that many people choose to ignore it. Let us try to draw a quick parallel.

Legislators make a law where the speed limit is 55 mph. The rationale for 55 mph is that it is a speed at which drivers, passengers can travel efficiently and safely and cause the least amount of actual or potential harm to the surrounding environment.

Car makers build cars using the most modern technology available to them. That technology allows for faster cars that easily can exceed the 55 mph speed limit. If a more technologically advanced car exceeds 55 mph (the speed limit at which law makers determine everyone can be safe), that car is operating illegally because, theoretically, going above 55 mph increases the level of danger to others on the road.

But the technological advances that make it possible for cars to travel faster than 55 mph also allow car makers to introduce seat belts, air bags, better handling, and better brakes. All of those factors improve safety. Concurrently, police (who enforce the speed limit and determine which cars exceed it) decide by social compact that they’re not going to penalize folks who drive their cars at 56 mph. Instead, they choose a speed — say, 65 mph — that the police department decides is a safe speed and make that higher speed the effective speed limit.

The decision to write out a ticket at 65 mph instead of 56 mph can be arbitrary, but often it is informed by a mix of perceived dangers in a given situation and prevailing social custom. If there is less perceived danger, the cop will write at 65 mph. If most of the cars are traveling, say, 62 mph, the cop will write at 65 mph.

Part of the reason this situation occurs is because at some point, citizens and cops alike believe that the 55 mph speed limit is patently unreasonable to the point of being stupid. Then at some point, law makers decide that 65 mph is the new speed at which everyone can travel safely and efficiently. And eventually, the same police who decided by social compact that they wouldn’t penalize folks who drove 56 mph now decide they won’t write under the new 65 mph “speed limit” unless you’re actually traveling 72 mph.

This all seems reasonable, right?

Copyright has gone in exactly the opposite direction. The technology is allowing you to work at 65 mph; fair use and other exceptions should allow you to operate safely at 72 mph without a problem. Law makers have rewritten the Copyright Act of 1976 to have a “speed limit” of 50 mph, and content companies propose further amendments that would require a new speed limit of 45 mph. Faced with this sort of illogic, the average Joe or Jane decides, “The heck with it,” and rolls down the road at 66 mph.

The average Joe or Jane reacts that way not because they want to be rebels. They react that way because they have decided that given all the data points, 45 mph is unreasonable to the point of being stupid. If people think a law is stupid, they won’t abide by it. If they don’t abide by it, what good is the law?

See also:
Bits (The New York Times). Is Macrovision Bringing More Cops to Your Living Room? Dec. 7, 2007.

Copycense™: Incisive IP.™

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When Macrovision, the content control company, buys TV Guide, it is reasonable to ask to what extent will Macrovision implement DRM in a way that could force electronics manufacturers to engage in what writer Saul Hansell calls “electronic vigilantism.” Hansell notes this is no longer a theoretical concerning, pointing to Boing Boing’s post about a new Western Digital computer network hard drive that blocks music and video files because of “unverifiable media license authentication.”

Practically speaking, that’s a technologically complex way to say if I buy Season 4 of The Wire on DVD, and I want to rip it to QuickTime to play on my computer — a common, totally reasonable action that Time Warner likely would claim is de facto illegal — then at some point, I may be unable to because my computer would reject that file as “unauthorized.” And if I try to break the encryption code, I violate the Digital Millennium Copyright Act.

That’s patently unreasonable to the point of being stupid. And this, we posit, is a primary reason why so many people ignore contemporary copyright: it has become so ridiculous that many people choose to ignore it. Let us try to draw a quick parallel.

Legislators make a law where the speed limit is 55 mph. The rationale for 55 mph is that it is a speed at which drivers, passengers can travel efficiently and safely and cause the least amount of actual or potential harm to the surrounding environment.

Car makers build cars using the most modern technology available to them. That technology allows for faster cars that easily can exceed the 55 mph speed limit. If a more technologically advanced car exceeds 55 mph (the speed limit at which law makers determine everyone can be safe), that car is operating illegally because, theoretically, going above 55 mph increases the level of danger to others on the road.

But the technological advances that make it possible for cars to travel faster than 55 mph also allow car makers to introduce seat belts, air bags, better handling, and better brakes. All of those factors improve safety. Concurrently, police (who enforce the speed limit and determine which cars exceed it) decide by social compact that they’re not going to penalize folks who drive their cars at 56 mph. Instead, they choose a speed — say, 65 mph — that the police department decides is a safe speed and make that higher speed the effective speed limit.

The decision to write out a ticket at 65 mph instead of 56 mph can be arbitrary, but often it is informed by a mix of perceived dangers in a given situation and prevailing social custom. If there is less perceived danger, the cop will write at 65 mph. If most of the cars are traveling, say, 62 mph, the cop will write at 65 mph.

Part of the reason this situation occurs is because at some point, citizens and cops alike believe that the 55 mph speed limit is patently unreasonable to the point of being stupid. Then at some point, law makers decide that 65 mph is the new speed at which everyone can travel safely and efficiently. And eventually, the same police who decided by social compact that they wouldn’t penalize folks who drove 56 mph now decide they won’t write under the new 65 mph “speed limit” unless you’re actually traveling 72 mph.

This all seems reasonable, right?

Copyright has gone in exactly the opposite direction. The technology is allowing you to work at 65 mph; fair use and other exceptions should allow you to operate safely at 72 mph without a problem. Law makers have rewritten the Copyright Act of 1976 to have a “speed limit” of 50 mph, and content companies propose further amendments that would require a new speed limit of 45 mph. Faced with this sort of illogic, the average Joe or Jane decides, “The heck with it,” and rolls down the road at 66 mph.

The average Joe or Jane reacts that way not because they want to be rebels. They react that way because they have decided that given all the data points, 45 mph is unreasonable to the point of being stupid. If people think a law is stupid, they won’t abide by it. If they don’t abide by it, what good is the law?

See also:
Bits (The New York Times). Is Macrovision Bringing More Cops to Your Living Room? Dec. 7, 2007.

Copycense™: Incisive IP.™

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The Copyright Clearance Center (“CCC”) is an organization about which many information professionals have formed opinions. The opinions vary from positive to negative; they may be formed based on direct involvement with the company or its representatives, or through hearsay. The organization plays a pivotal role in the symbiotic, yet often contentious, relationship between those people and entities that need information and those who wish to make it available. But CCC also has become – fairly or unfairly – a lightning rod in an environment that has elevated copyright law into the forefront of social, political, legal, and commercial discourse.

As CCC’s president and chief executive officer, Tracey Armstrong is responsible for managing the delicate balance between collecting licensing revenues for copyright owners and advocating for new ways to deliver information to end users. Armstrong, who has worked for the organization since 1989, became CCC’s CEO last summer, succeeding Joseph Alen. The organization she leads earned more than $175 million for the fiscal year that ended June 30, 2007, and has enjoyed strong growth for several consecutive years. At the same time, she takes over the company in a time of unprecedented legal flux, and will be expected to maximize licensing revenue and company earnings in the midst of uncertainty.

During an hour-long interview that Copycense executive editor K. Matthew Dames conducted with Armstrong earlier this year, Armstrong indicated she welcomes the challenge.

The January 2008 edition of Online magazine will feature a substantial portion Dames’ interview with Armstrong, which is one of the first extensive interviews a CCC executive has given in several years. Both candid and engaging, Armstrong answers questions about CCC’s organization and structure; the business’ opportunities and challenges; and CCC’s role in the larger debate about access to information.

The full interview will be republished on Copycense in Spring 2008.

This Is Copycense™: Code + Content. A venture of Seso Group LLC.

Correction: Copyright Clearance Center Inc. is a New York not-for-profit corporation. As such, CCC does not earn profits, as a previous version of this post indicated.

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Jill Aho. University Accuses RIAA of ‘Spying’ On Students. Oregon Daily Emerald. Dec. 3, 2007. After the Oregon Department of Justice moved to quash an RIAA subpoena that sought the identities of University of Oregon students who allegedly committed copyright infringement, attorney general Hardy Myers’ office returns with another motion. This second motion alleges RIAA and MediaSentry are “spying” on Oregon residents. MediaSentry is a Maryland-based company that locates and identifies IP addresses that the RIAA targets in its litigation campaign against consumers. Part of OAG’s new claim is that MediaSentry is an investigator, and as such, not licensed to do business in the state of Oregon. Now that is awfully novel argument that takes a pair to present to a judge.

(Editor’s Note: Copycense editors originally commented on this article in the Dec. 4, 2007, edition of Copycense Clippings.)

Copycense™: Incisive IP.™

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Kudos to Oregon attorney general Hardy Myers, whose nimble argumentation and refusal to snivel under corporate pressure may make him what former Mississippi attorney general Michael Moore was to Big Tobacco: a whip-smart, no nonsense SOB litigator who can win cases, make opponents weep under procedural wizardry; and cause a whole lot of pain. Also in this week’s Clippings: going mainstream with America’s most anti-tech organizations; a Ghanian take on Bowie Bonds; Facebook retreating (again) in the face of member complaints about privacy; and Lessig commencing his study into “corruption.”

This is Copycense.

Article of the Week

Inside Higher Ed. When E-Mail Is Outsourced. Nov. 27, 2007. An extensive, well-developed feature article on the trend of colleges and universities outsourcing e-mail functions to Microsoft Live or Google, and finding ways to use those companies’ collaborative tools, or create their own. We wonder if this trend is the modern equivalent of using cartoons to sell cigarettes or sugary cereal to children. Categories: Education; Networks; Privacy & Security.

Clippings

Jill Aho. University Accuses RIAA of ‘Spying’ On Students. Oregon Daily Emerald. Dec. 3, 2007. After the Oregon Department of Justice moved to quash an RIAA subpoena that sought the identities of University of Oregon students who allegedly committed copyright infringement, attorney general Hardy Myers’ office returns with another motion. This second motion alleges RIAA and MediaSentry are “spying” on Oregon residents. MediaSentry is a Maryland-based company that locates and identifies IP addresses that the RIAA targets in its litigation campaign against consumers. Part of OAG’s new claim is that MediaSentry is an investigator, and as such, not licensed to do business in the state of Oregon. Now that is awfully novel argument that takes a pair to present to a judge. Categories: Cases & Litigation; Education; File Sharing, P2P & Downloads; Music.

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