March 5, 2015

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Where Are the Legal Lossless Downloads?

I must have been very nice last year, because Santa brought me a Sonos Connect Wireless HiFi System and Network Attached Storage (NAS) with Wake-on-LAN for Christmas. This particular combination of hardware can mean only one thing: I will spend the waning days of 2012 and the beginning days of 2013 ripping my entire CD collection (which is not small) into lossless files. After poring over audiophile blogs and lurking on discussion forums, I chose FLAC (Free Lossless Audio Codec) as the format for my ripping binge. FLAC has the great virtue of combining openness with losslessness, and it seems to be the coin of the realm for the digital audiophile set. I’ve been using dbPoweramp as my ripper, and it’s all been going very well. Albeit not perfectly. There is the occasional track that for whatever reason—some physical defect in the disc or some blip in the ripping or the encoding—I cannot get FLAC-ed. Last night’s file, as it happens, was Fine Young Cannibals’ “Couldn’t Care More.”  No matter how much I tweaked the ripping and encoding settings, I couldn’t get a proper lossless copy. So I decided to do what any law-abiding music consumer would do in my situation: I searched the Internet far and wide for a paid (i.e., legal) lossless download of the song. I would have bought FLAC or ALAC or anything else lossless. Reader, I searched in vain. I don’t know why this surprised me, knowing what I do about the supply-side causes of digital piracy. But it did. I found more than one adware-bloated torrent for the FLAC version, but I couldn’t find the authorized article in anything but lossy format from Amazon or iTunes. I could, I suppose, just buy a new CD and try my luck again, but that seems a little perverse, given that the whole beauty of the digital download model is track-by-track purchasing. And I already bought the whole CD once.
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Facebook Copyright Statement: Not Entirely Silly

There’s a meme going around on Facebook, saying that you should post a certain legal incantation on your Facebook wall, to reclaim certain rights that Facebook would otherwise be taking from you. There’s an interesting counter-meme in the press now, saying that all of this is pointless and of course you can’t change your rights just by posting a statement on a website. Both memes have something to teach us about perceptions of rights and responsibilities online.
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Is Spotify the Celestial Jukebox for Music?

In 1994, law professor Paul Goldstein popularized the term “celestial jukebox” to refer to his vision of a networked database of consumable on-demand media. In the face of copyright law that was ill-suited to the rapid rate of technological change, he described a system in which consumers would pay-per-play rather than purchasing and owning individual works. In his book Copyright’s Highway, he predicted that, “the pace of technological development is so fast and the forces of market demand so strong that the celestial jukebox, however configured, will be in place sometime early in the twenty-first century.”

The explosion of broadband and mobile internet access has made that viable, and countless startups have taken a stab at implementing the vision. One of the biggest challenges for these companies has been compiling a library of licensed works that is comprehensive enough to attract a critical mass of users. In the music market, the pay-per-play model has generally given way to monthly subscription or ad-based models. I’ve been a casual user of Last.fm and Pandora, but my listening habits haven’t been fundamentally altered. That changed last week when I finally decided to try Spotify. Spotify may be the first real contender for a mainstream “celestial jukebox” of music. But is that a good thing?

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The Decline of DVD-by-Mail, or Further Thoughts on the Digital Death of Copyright’s First Sale Doctrine

Netflix reported a second-quarter profit last week as customer demand continues to drive a transition in the company’s primary delivery model from DVD-by-mail to Internet streaming. According to The New York Times, “[t]he company’s net losses among DVD-by-mail subscriptions outpaced its gains in net streaming subscriptions in the United States, reflecting the continued challenge of converting from a physical disc business to one predominately online.” The company, of which I am a longtime subscriber and fan, has famously struggled with the business implications of this transition since it began offering streaming service in 2007. (Remember the Qwickster debacle?) Those business implications derive in some interesting ways from copyright law.

The DVD-by-mail model, on which Netflix built its success, was enabled by the first sale doctrine, which cuts off a copyright owner’s distribution right with respect to a particular copy of a copyrighted work when that copy is first sold. Because of the first sale doctrine, Netflix was not required to get permission from movie studios to set up its business. In the early days, Netflix simply bought DVDs—lots of them—from whatever retailers were selling them and then rented those DVDs to its customers. If the movie studios didn’t like that, well, too bad.
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Opening Government: On the Limits of FOIA and the Metaphor of Transparency

At a recent symposium (“Piracy and the Politics of Policing: Legislating and Enforcing Copyright Law”) sponsored by the Cardozo Arts and Entertainment Law Journal, I was invited to respond to an excellent paper by David Levine on secrecy, national security, and the denial of public access to documents from the Anti-Counterfeiting Trade Agreement (ACTA) negotiation process. Dave argues in his paper for an amendment to the federal Freedom of Information Act (FOIA) that would create a qualified public right to “foreign relations” national security information. Had such an amendment been in place at the time of the ACTA negotiations, the Office of the United States Trade Representative would not have been able to invoke FOIA’s national security exemption—a dubious invocation, at best—to deny public requests for documents that were made under FOIA by public interest groups like Public Knowledge.

Responding to Dave’s article got me thinking about the use of “transparency” as a metaphor for openness in government, the use of FOIA as a mechanism for ensuring such openness, and the ways in which proponents of greater public involvement in policy-making (among whom I count myself) may disserve the cause by focusing too single-mindedly on access to information and the right to know, both of which are operationalized through FOIA. In my response to Dave’s article, a relatively short piece that I’ve posted to SSRN, I try to articulate the limits of FOIA as a mechanism for open government:
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Contract hacking and community organizing

I discussed community discontent with copyright terms of some scholarly publishers, and I proposed an economic analysis. Now let’s consider two other approaches.

Contract hacking

I have published quite a few scholarly papers, and with each one I am invited to sign a copyright form. This is a contract between author and publisher, which which I hand over certain rights and the give me $0 (plus they publish my paper). These contracts (and my signature) is in dead-tree form, on real paper (though in recent years it follows the print/sign/fax or print/sign/scan/e-mail model).

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Modest Proposals for Academic Authors

In the scuffles over copyright policies on scholarly articles, what is the academic author to do? First, inform yourself. Find and read the copyright policy of the journals (or refereed conferences) to which you submit the articles describing research results. Find out the subscription price (dead-tree-edition or online) that the publisher charges individuals and institutions, and compare with the norms in your fields and others. Decide for yourself whether your publisher is unduly limiting the spread of ideas, or charging such prices that the effect is the same.

Remember what Thomas Jefferson wrote in 1813:

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

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Copyright in Scholarly Publishing, 2012 Edition

I’ve heard a lot recently about copyright policies of scholarly journals. Over 9000 researchers signed a pledge to boycott Elsevier, on three grounds: (1) high prices for journal subscriptions, (2) bundling practices for institutional subscriptions; (3) lobbying regarding SOPA, PIPA, and the Research Works Act.

Meanwhile, other organizations such as the ACM (scholarly/professional society for computer science and the computing industry) and IEEE (scholarly/professional society for electrical engineering and computing) once were leaders in open-access; they had relatively low journal prices and relatively liberal policies permitting authors to display preprints on the authors’ web pages. Now the ACM’s and IEEE’s policies have not changed, but they are no longer at the forefront: while ACM and IEEE require an assignment of copyright and leave the author with a few rights, organizations such as Usenix (another professional society in computing) take only a nonexclusive license to reprint a scholarly article.

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The Latest in Nationwide Internet User Identification – Part 2 (the All-New, So-Called Federal Co-Conspirator Theory)

Since Part 1 in this series a few months ago, Plaintiffs have continued to file “pure bill of discovery” suits in Florida state court. These proceedings typically involve “John Does” who are accused of copyright infringement via peer-to-peer networks. The Plaintiffs (copyright-holders or their delegates) have continued to name as defendants in those “pure discovery” proceedings not the entities from whom they seek discovery (i.e., the Internet service providers) but instead John Does, from whom no discovery is sought. After filing their suits, Plaintiffs promptly seek and obtain an ex parte order for expedited discovery of the John Does’ names from the ISPs, even though the ISPs are not then represented or present in the proceeding. Because the ISPs are not technically parties, the Plaintiffs can use these orders to issue subpoenas to ISPs from across the country regardless of whether the ISPs or their subscribers would be subject to the jurisdiction of a Florida state court.

The Plaintiffs’ lawyers certainly must know that this is not right. For one thing, they tend to withdraw their subpoenas whenever it appears a court is actually going to hear the reasons why their use of the proceeding is improper.

Recently, several ISPs stood firm and proceeded to a hearing on their motions for protective order in a couple of these proceedings. The Plaintiffs’ lawyers, in typical fashion, tried to withdraw their subpoenas and argued that the judges should not listen to the ISPs’ arguments. Not surprisingly, the Plaintiffs did not fare well in an adversarial proceeding.

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Join Us at Princeton Tomorrow for "Copyright Cat-and-Mouse: New Developments in Online Enforcement"

Tomorrow afternoon, the Center for Information Technology Policy is hosting an event that looks at the state of online copyright enforcement and the policy perspectives of the parties involved. We’ve got a great lineup, with folks from the content industry, internet service providers, web companies, academics, and the press.

Date: Tuesday, March 13, 2012
Time: 1:00 PM – 5:00 PM
Location: The Friend Center, Princeton University, Convocation Room

[Update: Video of the event is now available.]