Repeal the DMCA, Says Cato
The scientific, technical, and consumer backlash against digital rights management (DRM) software has been harsh since computer programmer Mark Russinovich discovered that Sony BMG used DRM software on its music compact discs that implemented a “rootkit,” a tool that virus writers may use to hide their work. Much of the furor about DRM has been about the security problems many DRM schemes pose, or the sneaky way in which content owners implement DRM without notice to consumers.
Few of the criticisms, however, talk about how DRM (and consumers’ inability to deactivate it) actually is a threat to the competitive business landscape. Now the Cato Institute has weighed in on the subject, even going so far as to suggest a repeal of the Digital Millennium Copyright Act, the law that makes it illegal for consumers to deactivate DRM. Writes report author Timothy Lee
Copyright holders have used the DMCA as a contract enforcement tool, promoted criminal actions against programmers who expose flaws in DRM software, and worked to suppress academic research that affects copyright protection.
Not only is that bad for innovation and entrepreneurship, it is bad for consumers as well. Ordinarily, new technologies allow us to consume media in new ways. The VCR introduced the idea of taping shows for later viewing. The invention of MP3 players like the iPod allowed consumers to put their entire music libraries in their pockets. Software emulators allowed consumers to play games designed for popular consoles like the PlayStation on their computers. In each of those cases, industry incumbents sought to use the legal process to block the technologies, arguing that they violated copyright law. And in each case, the courts rebuffed the industry’s efforts, holding that copyright law is designed to promote, not impede, technological progress.
The DMCA puts its thumb on the scales of justice on the side of copyright holders. Digital rights management technologies give copyright holders complete control over every aspect of how their products are used. And the DMCA gives DRM technologies the force of law. As a result, when the next VCR or iPod is invented, the content industry may use its powers under the DMCA to refuse to allow its content to be used on the new device. If new inventions are prevented from even entering the marketplace, there will never be an opportunity for a public debate about their benefits. Most consumers will not even know what they are missing.
Of course, many individuals and groups (including the library associations and the Electronic Frontier Foundation) have been saying similar things about the DMCA even before President Clinton signed it into law in October 1998. But it is a bit surprising to have a free-market promoting group like the Cato Institute sponsor a paper that criticizes pro-business legislation in so sharp and direct a manner.
Timothy B. Lee. Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act. Cato Institute. March 21, 2006.
See also:
CopyCense. CopyCense’s Sony-BMG DRM Bibliography (v. 1.1). Feb. 2, 2006.
CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.
Crawford Connects the Digitization Dots
In the March edition of E-Content, Walt Crawford discusses the open access possibilities and economies of scale that could result from a loose collaboration between Google’s Book Search project, the Open Content Alliance, and the Creative Commons license scheme.
What do you get when you combine a four-year-old licensing system and two possibly complementary projects to digitize substantial quantities of print information? With luck, a substantial ecommons: millions of digital items that can be used directly and as the basis for derivative works without infringing copyright. These projects should also result in full-text indexing for millions more items that won’t be freely available online but can be acquired through libraries and booksellers.
Crawford, who is a senior analyst at RLG and the namesake author of Cites & Insights: Crawford at Large, continues
Pulling these threads together, OCA encourages use of Creative Commons licenses whenever that makes sense. That makes it more likely that a good deal of copyright material will be available under appropriate license, since Creative Commons licenses offer carefully drawn ways to “give away” some copyright control without losing copyright. Google isn’t part of this combination yet, but it wouldn’t take much to make the public domain works part of the greater whole.
Conceptually, Crawford’s observations make sense. But I think Crawford’s view of the potential inherent in such a combination is unlikely to happen. Google, Yahoo!, and Microsoft are competing publicly-held corporations that ultimately are looking to exploit the next great market. To be fair, I’m sure each of these companies has some altruistic motive for being involved in their respective projects, but their ultimate goal is to be in the game if and when the content market shifts significantly enough for them to be major players in it. And once they find the game, each wants to write its rules.
In my view, the involvement of Google, Yahoo!, and Microsoft the digitization game amounts to a scouting session wherein each company will determine just how involved they will get in the content market beyond search. The possibilities — research database, bookseller, music seller, or even publisher — are endless. It’s not about the commons; it’s about the cash.
Walt Crawford. Building the Econtent Commons. EContent. March 2006.
CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.
Mother Jones Cites Compendium of “IP Overkill”
The current edition of Mother Jones magazine includes an alternately sad and hilarious list of tidbits and factoids about intellectual property. Depending on your legal or commercial leanings, one could view this list as an example of how well the proprietary IP system works, or how much it has failed.
Included on the list are:
- Last year Mister Softee spent $170,000 to track down and sue 45 competitors for copying its blue-and-white trucks and playing its copyrighted jingle.
- Ninety-one pending trademarks bear Donald Trump’s name, including “Donald J. Trump the Fragrance” and “Trump’s Golden Lager.” He failed to trademark the phrase “You’re fired.”
- Huey Newton’s widow is trademarking the phrase “Burn, Baby, Burn” for use as a BBQ sauce slogan.
- Martin Luther King Jr.’s estate charges academic authors $50 for each sentence of the “I Have a Dream” speech that they reprint.
Interestingly, the list omits actor Damon Wayans’ attempts to trademark a racial slur to use on clothing, books, and general merchandise.
Clara Jeffery. Intellectual Property Run Amok. Mother Jones. March/April 2006.
See also:
Rogers Cadenhead. Actor Tries to Trademark ‘N’ Word. Wired News. Feb. 23, 2006.
CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.
Google’s Records Requested In Another Case
In a lawsuit brought by the Federal Trade Commission, a federal judge has ordered that Google divulge the entire contents of a Gmail account, including deleted e-mail messages. The subpoena, which is unrelated to the Department of Justice’s own subpoena to Google for search terms and excerpts from its search database, is the second time in a month that the search giant has had a court demand records from its vast database.
As BusinessWeek Online‘s David Holzman noted in an article we linked to last week, one of Google’s biggest future legal and business challenges will be the ability to keep its database content private and out of the hands of competitors and third parties, including government and law enforcement agencies. Part of the competitive advantage Google enjoys is buoyed by public trust. This trust will erode quickly if Google cannot find a way to keep its data private.
Declan McCullagh. Police Blotter: Judge Orders Gmail Disclosure. News.com. March 17, 2006.
See also:
CopyCense. Google Faces Increased Legal Challenges. March 16, 2006.
CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.
Michael Geist Analyzes “Clip Culture”
Michael Geist, law professor at the University of Ottawa, has penned an interesting column on the rise of “clip culture.” As I understand it, “clip culture” is a term that describes the rise and pervasiveness of image and video sharing. Presumably, Flickr and YouTube are two of the Web sites that best manifest the rise in “clip culture.”
Writes Geist
Most of the videos on Youtube and other video sharing services are not full-length features. Instead, taking their cue from the movie studios and sports networks, the overwhelming majority of videos are shorter clips running anywhere from a few seconds to a couple of minutes.
The clips themselves fall into three broad categories. Homegrown or “amateur” clips constitute a significant percentage of the collection as the mushrooming of user-generated content moves from blog postings to innovative multimedia featuring audio and video. Montage videos, which represent the next-generation of protest and fan sites, constitute the second category. A Youtube search for President George Bush yields hundreds of videos, many of which bring together multiple clips to make powerful political statements. Meanwhile, a similar search for NHL rookie sensation Alexander Ovechkin produces dozens of compilations of highlight reel goals.
The third category — clips of network television shows — has generated the most controversy. Video sharing sites contain thousands of clips that previously aired on television. In some instances, the clips appear with the approval of the broadcaster either because the clip is available for a fee (some Google Video clips are available for purchase) or because the broadcaster has embraced the benefits of free publicity and cost-free distribution.
Geist acknowledges the thorny legal implications inherent in the third category, which CopyCense has covered elsewhere. But instead of challenging the legality of the third category of clip culture, Geist sagely calls for a reexamination and reaffirmation of the fair use doctrine.
Michael Geist. The Rise of the Clip Culture. March 19, 2006.
See also:
CopyCense. Comparing YouTube & Napster. March 16, 2006.
CopyCense. YouTube’s Questionable Copyright Business Model. Feb. 7, 2006.
CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.
Canadian Study Finds Most People Rip Their Own Music
“While the Canadian Recording Industry Association (CRIA) regularly trumpets commissioned studies as evidence for the problems posed by P2P, this week it released a major study without any fanfare whatsoever. What makes this particular study interesting is that much of the data challenges many familiar CRIA claims.
“The survey asked for the sources of music on people’s computers. Among those who download music from P2P services, the top source of music was ripping copies of their own CDs (36.4%), followed by P2P downloads (32.6%), paid downloads (20.1%), shared music from friends (8.8%), downloads from artist sites (5.6%), and other sources (2.9%). In other words, even among those who download music from P2P services, the music acquired on those services account for only one-third of the music on their computers as store-bought CDs remain the single largest source of music for downloaders.”
Michael Geist. CRIA’s Own Study Counters P2P Claims. March 17, 2006.
CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.
Thespians Seek Cash from iTunes Kitty
“As president of the Screen Actors Guild, Alan Rosenberg has become a warrior in the digital age. Allied with Hollywood’s other two major unions, the Writers Guild of America and the Directors Guild of America, Rosenberg intends to be the latest — and most conspicuous — speed bump on Hollywood’s digital highway.
“Elected last September on a pledge to “fight like hell to get actors their fair share,” the 55-year-old actor says in his gravelly New Jersey accent that he hopes to increase the amounts that studios pay creative folks for downloads to iPods, computers, and cable systems. For Hollywood, which is banking on digital downloads to make up for slowing DVD sales and a sluggish box office, the message is clear: Your partners want their slice of the pie.”
Ronald Grover. Dibs On The Download Dough. BusinessWeek Online. March 20, 2006.
CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.
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