Boucher's FAIR USE Act and the Backlash

Normally, I am wary of legislation with cheesy acronyms, but Representative Rick Boucher of Virginia's "Freedom and Innovation Revitalizing United States Entrepreneurship (FAIR USE) Act" is laudable.

The law (H.R. 1201) seeks to, among other things, exempt certain activities from DMCA retribution. The modifications of the DMCA would allow consumers to circumvent DRM if the motivation falls under the traditional bounds of fair use.

In his press release, Boucher said,

"The fair use doctrine is threatened today as never before. Historically, the nation's copyright laws have reflected a carefully calibrated balanced between the rights of copyright owners and the rights of the users of copyrighted material. The Digital Millennium Copyright Act dramatically tilted the copyright balance toward complete copyright protection at the expense of the public's right to fair use," Boucher said. "The FAIR USE Act will assure that consumers who purchase digital media can enjoy a broad range of uses of the media for their own convenience in a way which does not infringe the copyright in the work."

In typical fashion, the RIAA has already responded, saying that the bill would "legalize hacking." This claim draws on the assumption that hacking is always nefarious. Traditionally, hacking was quite admirable while "cracking" was done with criminal intent. If accessing content for legal means is "hacking" then I am all for it.

"The difference between hacking done for non-infringing purposes and hacking done to steal is impossible to determine and enforce," the RIAA said in its statement.

What? Enforce what? Determine what? Don't we have a legal system (which, by the way, the RIAA seems quite keen on using) to determine criminality? Since when did we live in a country where the default was to ban an activity because a potential exists for illegal actions?

The above RIAA statement admits that "non-infringing purposes" for hacking exists. Boucher's FAIR USE bill will legalize those actions and should be fully supported.

Update: The great Tim Lee has a nice story detailing the shortcomings of the FAIR USE Act. I think it is only reasonable that Boucher has taken this weakened approach to amending the DMCA as he has failed twice in the past. I see the FAIR USE Act as a good first step.

More on this as it comes in...

I Think Some Lawyer Was a Little Excited...

And for a supplement to my recent post, below is the lengthy notice in the copy of Hedda Gabler I have [with my comments bracketed]. Some lawyer went a little overboard. To be clear, this is an adaptation of a public domain play:

"All rights reserved [Except fair use, right?]. No part of this book may be reproduced in any form or by any electronic or mechanical means [oops], including information storage and retrieval systems [tricked ya, Google!], without permission in writing from the publisher, except by a reviewer, who may quote brief passages in a review [wouldn't want to anger them]. Any members of educational institutions wishing to photocopy part or all of the work for classroom use, or publishers who would like to obtain permission to include the work in an anthology, should send their inquiries to Grove/Atlantic, Inc., 841 Broadway, New York, NY 10003. [We like to remain backwards in all regards, so no email address will be provided]

CAUTION: Professionals or amateurs [everyone?] are hereby warned that Hedda Gabler, as adapted by Jon Robin Baitz, is subject to a royalty ["warned", indeed]. It is fully protected under the copyright laws of the United States, Canada, the United Kingdom, and all British Commonwealth countries [shucks, there goes my South African production]; in all countries covered by the International Copyright Union, the Pan-American Copyright Convention, the Universal Copyright Convention, and the Berne Convention; and in all countries with which the United States has reciprocal copyright relations ["the world" would have been shorter...]. All rights, including professional, amateur, motion picture, recitation, public reading, radio broadcasting, television, video or sound taping, all other forms of mechanical or electronic reproduction, such as information storage and retrieval systems and photocopying, and rights of translation into foreign languages, are strictly reserved [basically, don't think about doing anything but buying this play and filing it on your shelf. Opening it might prove illegal]. In its present form the play is dedicated to the reading public only [well, at least he dedicated it to us, not his parents or something].

By the way, I am writing to the address to see if they charge me to make copies for my "educational institution" (read: blog).

Overreaching "All Rights Reserved"

Today, I started Too Late the Phalarope by Alan Paton. I enjoyed the first couple chapters, but the well-written story of apartheid is not what prompted this post.

Instead, it is the poorly-written copyright notice on the first page which struck me. According to Simon & Schuster, the publisher,

"All Rights [are] Reserved including the right of reproduction in whole or in part in any form."

Moving past the fact that notice is not even necessary anymore to obtain a copyright, the publisher clearly negates fair use. This unnecessary statement is particularly worrisome because such misinformation is nearly omnipresent in today's media.

Anyone who has watched a major league sporting event has heard an ominous voice announce that any "rebroadcast or retransmission" requires the "express written consent" of the league. Yikes!

And do they ever take this seriously. Wendy Seltzer recently received notice that YouTube had complied with a DMCA take-down notice for her uploading of the copyright notice of the Super Bowl. Luckily she has the legal and technical knowledge to fight this clear fair use (educational & parody).

But, how many people know their rights? Fewer every time the draconian notices are repeated.

Do you have any insane copyright notices in your house?

Creative Commoner Wins Oscar

CC Board Member Davis Guggenheim won the Oscar for Outstanding Documentary for his film "An Inconvenient Truth" tonight.

Al Gore's film is one which everyone should see - both the content and the cinematography make it worthwhile. I'm happy to see it get the recognition is deserves.

Boycott the RIAA in March

The gadget blog Gizmodo is calling for a month-long boycott of RIAA music. The power of the American is in his dollar. We are a consumer society and our choices affect the business practices of those from whom we buy. Tell you friends to pursue other options for the month:

Firstly, I encourage everyone to purchase music from unsigned bands and bands on independent record labels. There are tons of great artists out there, many of which you're probably already a fan of, that have nothing to do with the RIAA. Buy their records at eMusic, an online store that sells independent tunes in beautiful, DRM-free MP3 format.

Secondly, you can still support RIAA-signed bands without buying their music. Go see them live and buy their merchandise; they get a hell of a lot more money from that then they do from album sales. And hey, you could benefit from getting out more, couldn't you?

If you are unsure whether or not an album is put out by an RIAA label, the handy RIAA Radar will clear everything up for you. They have both a search engine and a great bookmarklet, so be sure to get yourself hooked up.

The only way we are going to stop the madness of the RIAA is to impact their deep wallets paying the lawyers and lobbyists. Put off the purchase of that new CD or (heaven-forbid) DRM-crippled iTunes song for March.

RIAA Trys to Kill Free WiFi

Not content with trying to kill P2P, the RIAA has filed a motion for reconsideration after a judge ruled that you are not liable for the actions of users on your open wifi network. If this ruling is overturned (as the RIAA hopes), then we will see the possibility of omnipresent wifi become much less feasible (not to mention cool startups like FON sputter).

In the case Capitol v. Foster, the respondent Foster was found to not be liable for file-trading using her IP address because she had an open wifi network which allowed anyone to use her IP address for internet access (and presumably file-trading).

Incidentally, I have a friend who leaves his home network open for this very reason and I would hate to see his plausible defense against the RIAA disappear.

[Via Wired]

The Ecstasy of Influence

In the current issue of Harper's Magazine, Jonathan Lethem writes one of the most wonderful pieces I've ever read. I don't want to give away the awesome surprise, but I cannot express how worthwhile his article is.

Further, Open Source Radio recently interviewed the author, Mark Hosler and Siva Vaidhyanathan about the creation of culture and how it relates to copyright. Hear the audio here, but be warned it gives away the secrets within the first minute.

Creative Consumer Copyright Act

In the Fall of 2006, I wrote my high school senior honors thesis on copyright. Part I chronicles the historical development of copyright law. Part II investigates the current friction between digitalism and intellectual property. The final section proposes a solution I call the Creative Consumer Copyright Act.

If you are interested, the paper is available here.

Explaining DRM to Your Sister

Ironically, following on the heels of my recent post about DRM affecting non-techies, my sister got a crash course in DRM (and circumventing it!). Today, she IMed me and the conversation follows:

Her: "do you know why the songs I purchased on itunes arent playing on my ipod?"

Me: "DRM"

Her: "What?"

Me: "digital rights management is a way for overzealous content owners to stop the stuff u legally purchase from working how u want it to; it thinks u've given the song to another person. you have to burn the songs to ca CD, then rip them back as MP3. doesn't that suck?"

Her: "that just pisses me off"

Me: "you can tell Hollywood to piss off, but it'll do little good"

Her: "and they want me to keep buying stuff???"

And even though she is fairly competent with a computer, she couldn't figure out how to jump through the RIAA's hoops without my help. You think she's going to buy a lot more from iTunes?

Hey, Jobs, you better get on that DRM removal...

More Black and White "Solutions" to Gray Areas

As I've said before, I am wary of binary solutions to alleged copyright infringement. Otherwise infringing uses of material are often legal due to the exception known as fair use.

However, the pressures of major content owners has created a market for these services which claim to scan uploaded video or music and determine, automatically, if it is copyrighted material. By creating a "fingerprint" of the original content and comparing the uploaded material, allegedly infringing material is eliminated.

The New York Times has a story about two new startups in this field. Audible Magic is the most prominent in this field and will be used my News Corp.'s MySpace.

The article also mentions Guba which after implementing a similar technology, was able to secure content deals with major studies.

But when Guba began blocking many copyrighted clips last April, its popularity plunged.

“We took a huge hit,” said Eric Lambrecht, Guba’s chief technology officer.

The consumers are in control and they want their media on their terms.

Explaining DRM to Your Dad

I've long been a believer in the "Mom Test." Much to my mother's chagrin, I approach many topics with the understanding that my audience might be starting from scratch.

Wired has a great post along those same lines: How to Explain DRM to your Dad.

1. I want to watch an Egyptian movie for my Middle Eastern studies class. But it is region coded not to play on my DVD player, in an effort to stop piracy. Now I have to hack my DVD player and break the law to get it to play. The movie isn't released in the U.S. This is the only version that was ever published. Since it isn't published in the US, and it's for academic purposes, I can rip it make copies for my classmates. That's fair use. But since I have to break the DRM to copy it -- I've broken the law anyway.

The DMCA, which is both ill planned and poorly executed, makes it illegal for you to break DRM even if your motivations are legal.

The Wired post has tons of great comments showing why DRM is crap. Where have you run into crappy DRM?

Translation of Macrovision's Letter

Macrovision, a DRM company, recently responded to Steve Jobs's letter on music. Here is a great translation.

Carlos Mencia Uses DMCA to Silence Critics

Yesterday, I was checking Digg.com's video front page and found the following story:



Apparently, the comedien Carlos Mencia was caught stealing jokes by Fear Factor host and comedian Joe Rogan. However, when visiting the video, which was hosted on YouTube, I found the following message:



The all too familiar message says that the shamed comedian has used the DMCA take-down provision to silence his critics. A number of YouTube videos purporting to show this had the same message. Luckily, the good community at Digg were able to point me in the right direction.

This MySpace video (NSFW - language) must be the correct one due to its recent nature (this month). It is shot by a crowd member and only has a few seconds of Mencia's original material. This is clearly a fair use as it is critiquing him and is so small in amount.

This is just another example of the a black and white "solution" (DMCA) for a gray area of the law.

[Digg This]

Genetic Patents Gaining Headlines

Michael Crichton, the author and critic of genetic patents, published this Op-Ed in the NY Times. It is a good primer in the subject and demonstrates the absurd capital and human cost of patenting diseases. See previous posts on this subject here and here.

Vanity Fair Story on the Pirate Bay

Though they may have bitten off a bit more than they can chew, Vanity Fair is running a decent story on the Pirate Bay and piracy in general. As is the case with publications like VF, the readers have no idea of the background so the author must explain complicated technological and industry trends to those who only understand through analogy. But, if you've got 15 minutes to kill, it might be worth your time.

[Humor] BSA is A Bit Misguided...

The Business Software Alliance (BSA) is an organization of software companies to promote their interests - such as combating software piracy. Tonight, I saw a funny advertisement from the group on digg.



First of all, digg is hardly the prime site for users sympathetic to their cause. Stories lambasting the RIAA or promoting BitTorrent are often promoted to the front page. Yet, I thought the animated ad deserved a click to see what the $200,000 bounty was all about.



Not only is this silly site advertised to those most likely to be downloading illegal content, but it asks people to not only turn others in for a prize, but to report their bosses, as well. Imagine the executive that thought this up. He is so deluded by the lawyers whispering in his ear that he thinks people will shill for him. Does anyone honestly expect someone to turn in their company for pirating software? Or to send the link of The Pirate Bay for indexing torrents?

Thanks for the laugh, BSA.

Filesharing Does NOT Harm Sales Says Report

Professors Felix Oberholzer-Gee of Harvard and Koleman Strumpf of University of Kansas have published a new report demonstrating that the effect of filesharing is "statistically indistinguishable from zero." Here's the excerpt:

For industries ranging from software to pharmaceuticals and entertainment, there is an intense debate about the appropriate level of protection for intellectual property. The Internet provides a natural crucible to assess the implications of reduced protection because it drastically lowers the cost of copying information. In this paper, we analyze whether file sharing has reduced the legal sales of music. While this question is receiving considerable attention in academia, industry, and Congress, we are the first to study the phenomenon employing data on actual downloads of music files. We match an extensive sample of downloads to U.S. sales data for a large number of albums. To establish causality, we instrument for downloads using data on international school holidays. Downloads have an effect on sales that is statistically indistinguishable from zero. Our estimates are inconsistent with claims that file sharing is the primary reason for the decline in music sales during our study period.

Printcrime

Cory Doctorow, the sci-fi writer, BoingBoing editor and EFF/CC proponent has been a leading force for free culture. He has lead by example by providing his books under a CC license. However, with some embarrassment I admit to never haven read his books, only his writings on DRM and copyright.

So, tonight I started his newest novel, Overclocked: Stories of the Future Present. After reading the first chapter online, I can tell you I plan to buy the book. Because I was able to read his work for free, he will garner a sale.

Here's the chapter from Cory's book which sent chills down my spine:
----------------------------------
Printcrime

(Originally published in Nature Magazine, January 2006)

The coppers smashed my father's printer when I was eight. I remember the hot, cling-film-in-a-microwave smell of it, and Da's look of ferocious concentration as he filled it with fresh goop, and the warm, fresh-baked feel of the objects that came out of it.

The coppers came through the door with truncheons swinging, one of them reciting the terms of the warrant through a bullhorn. One of Da's customers had shopped him. The ipolice paid in high-grade pharmaceuticals -- performance enhancers, memory supplements, metabolic boosters. The kind of thing that cost a fortune over the counter; the kind of thing you could print at home, if you didn't mind the risk of having your kitchen filled with a sudden crush of big, beefy bodies, hard truncheons whistling through the air, smashing anyone and anything that got in the way.

They destroyed grandma's trunk, the one she'd brought from the old country. They smashed our little refrigerator and the purifier unit over the window. My tweetybird escaped death by hiding in a corner of his cage as a big, booted foot crushed most of it into a sad tangle of printer-wire.

Da. What they did to him. When he was done, he looked like he'd been brawling with an entire rugby side. They brought him out the door and let the newsies get a good look at him as they tossed him in the car, while a spokesman told the world that my Da's organized-crime bootlegging operation had been responsible for at least twenty million in contraband, and that my Da, the desperate villain, had resisted arrest.

I saw it all from my phone, in the remains of the sitting room, watching it on the screen and wondering how, just *how* anyone could look at our little flat and our terrible, manky estate and mistake it for the home of an organized crime kingpin. They took the printer away, of course, and displayed it like a trophy for the newsies. Its little shrine in the kitchenette seemed horribly empty. When I roused myself and picked up the flat and rescued my peeping poor tweetybird, I put a blender there. It was made out of printed parts, so it would only last a month before I'd need to print new bearings and other moving parts. Back then, I could take apart and reassemble anything that could be printed.

By the time I turned eighteen, they were ready to let Da out of prison. I'd visited him three times -- on my tenth birthday, on his fiftieth, and when Ma died. It had been two years since I'd last seen him and he was in bad shape. A prison fight had left him with a limp, and he looked over his shoulder so often it was like he had a tic. I was embarrassed when the minicab dropped us off in front of the estate, and tried to keep my distance from this ruined, limping skeleton as we went inside and up the stairs.

"Lanie," he said, as he sat me down. "You're a smart girl, I know that. Trig. You wouldn't know where your old Da could get a printer and some goop?"

I squeezed my hands into fists so tight my fingernails cut into my palms. I closed my eyes. "You've been in prison for ten years, Da. Ten. Years. You're going to risk another ten years to print out more blenders and pharma, more laptops and designer hats?"

He grinned. "I'm not stupid, Lanie. I've learned my lesson. There's no hat or laptop that's worth going to jail for. I'm not going to print none of that rubbish, never again." He had a cup of tea, and he drank it now like it was whisky, a sip and then a long, satisfied exhalation. He closed his eyes and leaned back in his chair.

"Come here, Lanie, let me whisper in your ear. Let me tell you the thing that I decided while I spent ten years in lockup. Come here and listen to your stupid Da."

I felt a guilty pang about ticking him off. He was off his rocker, that much was clear. God knew what he went through in prison. "What, Da?" I said, leaning in close.

"Lanie, I'm going to print more printers. Lots more printers. One for everyone. That's worth going to jail for. That's worth anything."
----------------------------------

Here's an interview, too, about Cory's new work.

Google CEO on Intellectual Property Rights

Google is pushing the boundaries on intellectual property through its advertisement programs, search technologies and book scanning. Speaking at the Carnegie Endowment for Peace, Dr. Eric Schmidt answered a question on IPR and Google.



Google is fundamentally based in intellectual property he says. This is because of the proprietary algorithms they use; however, they challenge IPR is other arenas such as publishing.

Steve Jobs on DRM

Steve Jobs has published an article addressing DRM. From someone whose iPod music devices make up the majority of digital music players and whose iTunes Store is the most popular digital music store, this is a clearly important piece.

Jobs outlines three possible scenarios for the future of digital music.

1. The industry will continue in the same direction with proprietary systems of music stores and players with unique DRM. The major critique of the current system is that the DRM "locks" a consumer into a system. That is, will you always use an iPod? Or at some point might a better player exist? Well, iTunes music is not usable on other players and never will be. Jobs, using his internal data, says that on average only 3% of music on an iPod is iTunes. So, he argues, consumers are not "locked in." This is a weak argument. We are in the early days of digital music and the percentage of digitally purchased music will only continue to grow - thus locking future consumers into a proprietary system.
2. The second possible scenario is that Apple licenses their DRM, FairPlay to others like Sony or Microsoft. Therefore, the music is still "protected" but the consumer is not restricted in the same manner as today. Jobs dismisses this as impractical from a logistical standpoint and I think it is a fair criticism.
3. Finally, Jobs outlines a world without DRM. He makes the case which is not new to anyone in the field, but is important coming from such a luminary and influential business person. Where the music labels have only sold 2 billion songs on iTunes in its history, 20 billion have been sold DRM-free on CDs.

So if the music companies are selling over 90 percent of their music DRM-free,
what benefits do they get from selling the remaining small percentageof their
music encumbered with a DRM system? There appear to be none. If anything, the
technical expertise and overheard required to create, operate and update a DRM
system has limited the number of participants selling DRM protected music. If
such requirements were removed, the music industry might experience an influx of
new companies willing to invest in innovative new stores and players. This can
only be seen as a positive by the music companies.

According to Jobs, "Apple will embrace [a DRM-free world] wholeheartedly."

I imagine Jobs has been telling the music executives this for a while, but he has taken his fight public and will undoubtedly garner public support from both consumers and other technology executives.

Fair Use Part II

A right codified in section 107 of the Copyright Act, fair use allows anyone to use copyrighted materials in a justifiable way. Fair use protects everyone from movie-makers who capture a small portion of a copyrighted song to reviewers quoting a book. This use, according to Gordon Quinn, the founder of a prominent documentary film company and proponent of fair use, can be either commercial or noncommercial in nature.

In many ways, Mr. Quinn is on the forefront of the battle over fair use. By purpose, documentaries capture the real world and, more than ever before, that world is one of copyrighted material. The automatic copyright of all creative works means documentary makers have to cautiously avoid filming material owned by litigious firms.

In Free Culture, Lessig chronicles Davis Guggenheim, another documentary film maker, who reveals that a decade ago, only clearly recognizable content needed to be cleared for use. Now, unless one is willing to chance a lawsuit, any and all material must be cleared with the rights owners. Put simply by Guggenheim, “The cost for me is creativity."

The cost for others can be much more tangible. Quinn once paid $5,000 to use a scene in which “Happy Birthday” was being sung. Now, after years of experience and further legal understandings, he says he would “claim fair use” and use the song without paying for permission. But for many, the mere threat of a lawsuit by wealthy content owners like Disney or News Corp. would be enough to stop creation.

If the current copyright system is inhibiting the ability of producers to make new content, as these examples demonstrate, it calls for a serious reevaluation of the law. Few would suppose that artists would be as numerous and prolific without an opportunity to receive a financial gain that copyright assures; copyright is a good thing, but it does not hold that more of a good thing is necessarily better. A balance must be reached between allowing producers to market their goods and culture to evolve.

[See Part I on Fair Use or click the label below to see all relevant posts.]