April 19, 2024

Another reason for reforming the DMCA

I’ll be signing off my guest-blog stint at Freedom to Tinker now. (Thanks for your hospitality, Prof. Felten.)

Before I go, I wanted to point you to a chapter excerpt from “Darknet” I just posted here It tells the story of how the vice president of Intel Corp. violated the Digital Millennium Copyright Act (DMCA) without realizing it — by making a home movie of his son playing Pop Warner football and incorporating snippets of a Hollywood DVD.

As the VP, Donald S. Whiteside, told a Congressional delegation:

“This is precisely the kind of exciting consumer creativity that should be enabled. I don’t claim to have all the answers. Should I have to go clear rights to use ten seconds from Rudy in my son’s video, or does it fall under fair use? Should I have to pay pennies for every second of a snippet? I don’t know. But I do know that we have to figure out a way for consumers to do something creative without breaking the law.

“To me, this episode was a great way to frame the question: Should copyright law permit this or not? Should the DMCA criminalize this sort of thing? Or should the creative community, high-tech community, and lawmakers get together to try to stimulate this kind of innovative behavior?”

Well put.

— J.D. Lasica

Grokster fever

From Monday’s New York Times: The Court of Online Opinion Has Its Say on File Sharing. This is the third piece in the Times this weekend about the Supreme Court’s soon-coming Grokster decision. The article quotes Prof. Felten briefly:

Mr. Snyder’s instructor at Princeton, Prof. Edward W. Felten, a frequently read blogger, was less enthusiastic. At his Web log, freedom-to-tinker.com, Professor Felton predicted that the court would leave the whole issue muddy.

“The Supreme Court’s Grokster decision won’t provide us with a broad, clear rule for evaluating future innovations, so the ball will be back in Congress’s court.”

It’s certainly hard to read the High Court’s tea leaves, but I’d be very surprised if the entertainment industries won a clear-cut victory here (although one should never underestimate the technological cluelessness of the justices).

In the end, a remand to the lower courts – or a muddy decision of cross-current opinions – wouldn’t be so bad, would it? I argue in “Darknet” that while we’re likely to see setbacks at the federal and state level in the next five to 10 years – Congress will surely become a battleground once this ruling comes down – the contours of our digital future will really be decided by society. And that will take a very long time, as today’s young people begin interacting with media in very different (and less deferential) ways than their parents did.

Time is on our side. So, I’m rooting for the law to stay out of the way.

How to license graffiti

A member of Ourmedia.org this morning raised an interesting question that has both legal and ethical dimensions: How should photos of graffiti be licensed, if at all?

Among the points he raises is that under U.S. law (as well as other jurisdictions), you can’t profit from an illegal activity like graffiti, so the graffiti artist can’t pursue a claim of infringement, and yet copyright apparently still attaches to the creative work, although that’s less clear if the work is the product of several individuals over time.

At any rate, it’s an interesting question (especially for IP law students), and we’ll like see a good number of such works of Remix Culture (in the form of photos and videos) displayed on sites like Ourmedia or Google Video in the months ahead. I suggested that a Creative Commons attribution share-alike noncommercial license was the most appropriate license when capturing an image of such graffiti art. Thoughts?

DRM and 'casual piracy'

Some background on a major transformation taking place in the music industry, even as most mainstream media organizations print not a word about it:

Reuters article, May 31: Sony BMG tests technology to limit CD burning.

As part of its mounting U.S. rollout of content-enhanced and copy-protected CDs, Sony BMG Music Entertainment is testing technology solutions that bar consumers from making additional copies of burned CD-R discs. …

“The casual piracy, the schoolyard piracy, is a huge issue for us,” says Thomas Hesse, president of global digital business for Sony BMG. “Two-thirds of all piracy comes from ripping and burning CDs, which is why making the CD a secure format is of the utmost importance.” …

Among the biggest headaches: Secure burning means that iPod users do not have any means of transferring tracks to their device, because Apple Computer has yet to license its FairPlay DRM for use on copy-protected discs. …

San Jose Mercury News, June 15: Music industry eyes `casual piracy.’ Major labels to copy-protect all CDs sold in the U.S. The story begins:

The record labels are in pursuit of a new class of music pirates – not the millions who download bootlegged songs over the Internet but those who copy music CDs for their friends. …

It’s surprising to me that the Mercury News has accepted the record labels’ terminology in this matter. Piracy refers to making unauthorized reproductions of digital media for financial gain – or, stretching the term, for indiscriminate distribution. It is not piracy – “casual” or otherwise – when you buy music and make a few copies for close friends.

As Jessica Litman, author of “Digital Copyright,” writes in her law review article “War Stories,” 20 Cardozo Arts & Entertainment Law
Journal 337 (2002):

Under the old way of thinking about things, copying your CD and carrying the copy around with you to play in your car, in your Walkman, or in your cassette deck at work is legal. Borrowing a music CD and making a copy on some other medium for your personal use is legal. Recording music from the radio; maxing different recorded tracks for a ‘party tape,’ and making a copy of one of your CDs for your next-door neighbor are, similarly, all lawful acts. The copyright law says so: section 1008 of the copyright statute provides that consumers may make non-commercial copies of recorded music without liability. Many people seem not to know this any more.

Now, this is not to say that individuals have a right to make an unlimited number of an unlimited number of CDs for their friends. But where is the debate on this issue? The Merc article goes on:

Sony BMG Music Entertainment, home to some of the music industry’s biggest acts, including Bruce Springsteen, System of a Down and Shakira, plans to copy-protect all music CDs sold in the United States by the end of the year. Another major label, EMI, whose artist roster includes Coldplay and Norah Jones, will introduce copy-protected CDs in its two largest markets – the United States and the United Kingdom – in the coming weeks.

For consumers, it signals an abrupt change to the rip, mix, burn mania embodied by the 2001 Apple Computer ad campaign promoting the first iMac computer with a CD burner and software for creating custom music CDs. These new copy-protected discs limit the number of times people can create copies of music CDs or add individual songs to music mixes. …

On the PC, a message appears that asks the buyer for permission to install a piece of software on the desktop. Answer no, and the disc is ejected. It won’t play. Once installed, the software regulates how often people can rip a full copy of the CD to the computer, burn individual tracks or make full copies of each album. EMI, for example, will permit the consumer to upload an album once per computer, burn individual tracks seven times and make up to three full copies of each CD.

Should we allow the record labels to define the extent of our fair use rights through the DRM they place on the CDs we buy? (Ernest Miller suggests that the labels are making a strategic mistake through this attack on copying/sharing among family members and friends.)

This latest bit of news comes on top of the restrictions placed on other uses of digital media:

– it’s a federal offense to back up a copy of your DVD;

– it’s illegal to copy a purchased computer game with DRM onto your laptop or desktop;

– the new generation of digital television may impose similar limits on how you can copy or burn Hollywood programming.

Will citizens balk at these kinds of restrictions, or come to accept them? My suspicion is that the Darknet will grow in direct proportion to actions that turn mainstream Americans into “casual pirates.”

Tinkering with personal media

Did everyone here catch the Editorial Observer item in Sunday’s New York Times?: A New Magazine’s Rebellious Credo: Void the Warranty! The article recounted the launch of Make Magazine, a throwback quarterly that celebrates the almost-forgotten idea of the creative impulse inside us all.

Make, its makers will tell you, is part of a grass-roots rebellion against consumer technology that they say stifles ingenuity by discouraging end-user modification. To these restless minds, increasingly sophisticated consumer products have forced users into a kind of stupefied passivity, with nothing to do but replace batteries and update software, to point and click into a zone of blissed-out consumption. … In this world, to tinker – to open the case, to fiddle with wires and see what happens – is to rebel.

My thought, after reading the article, was: Yes! The freedom to tinker! It’s no longer a concept confined to a narrow set of technologists, geeks and academics. O’Reilly is a tech publishing house, sure, but surely this periodical has tapped into a nascent impulse among some segment of Americans to throw off the shackles of consumerism and to hark back to a time when we were co-creators of our products.

I remember watching my dad tool around with short-band radio and spend weekends under the hood of his car. What tinkering skill sets will I pass along to my 6-year-old? At the moment, the best I have to offer is, alas, a set of tools in the Darknet that I can point him to, given the widening disconnect between our laws and the kinds of things people want to do with digital technology.

But perhaps we can think of tinkering in a larger context: as a reformulation of our media culture. In that sense, creating a work of personal media (and perhaps showing it off on one’s blog or a site like Ourmedia) is an affirmative action that looms larger than it may at first seem. Clinton talks (in the comments below) about a media revolution that’s about honesty and substance, and that taps into a sentiment I bring up often in my talks about personal media: the genuineness and authenticity that we’re seeking to connect with and that’s missing from the realm of commercial-driven mass media. Even the failings can hold meaning because they’re true and genuine. I’m not all that concerned with figuring out a business model for the big boys to replace the current regime; someone will do that, whether it involves advertising, subscription or some new model we haven’t thought of yet. What we should be concerned about is breaking the stranglehold that the major media outlets (500 channels and nothing on) have on our living rooms. I do believe that when a wealth of Internet programming comes gushing through our TV sets, American culture will change – for the better.

We’ll be a more fragmented society, yes, but we’ll also see more and more young people picking up the tools of digital creativity. And becoming tinkerers.