On Wednesday the House Committee on Energy and Commerce held hearings on "Fair Use: Its Effect on Consumers and Industry."
Here's some particularly lovely snippets from this hearing:
Paul Aiken, of the Author's Guild: "The public domain's a fine thing, but it is, and always has been, merely a nice by-product of the copyright system."
James DeLong, IPCentral.info Progress and Freedom Foundation (PFF is a non-profit 'think tank' funded by these fine IP Rights holders; to think that their 'research' would be unbiased seems highly dubious at best): "In sum, fair use is a doctrine that has outlived much of its usefulness."
---- (note: Google is one of their supporters, I can't fathom that Google would approve of this statement!!)
Both of these statements show flagrant disregard for the public policy underlying the grants of intellectual property rights in the United States. In the US intellectual property is, as I said, granted, it is not a right inherent to mere creation (if you want that, move to Europe). We, our Founding Fathers, created the grant of intellectual property as an incentive for people to create. We want to encourage people to write novels, so we grant them a copyright in the work they created as an incentive for the creation. The terms and limits of the grant are, in theory, a bargain; for your creation and the betterment and advancement of science we will allow you to control the copying and distribution of your work for x number of years.
Right there we run into the problem with Mr. Aiken's astonishingly ignorant statement that the public domain is a byproduct of the copyright system. First of all, the public domain existed long before the copyright system did. Second, our very principles of copyright are to encourage the creation of works to enhance the public domain. Without the public domain, in the US, there would be no copyright system. We want to encourage people to invent things and disclose the inventions to others so that they can be used for the advancement of technology, so well tolerate temporary monopolies as a sacrifice and incentive for the creation. The argument being that without the granted rights monopoly, there will be no financial reward for creation because as soon as the thing is created, it can be duplicated and leveraged by others for their financial gain, and thus I would have no incentive to invest my own time and effort and intellectual captial into a project that someone else is going to financially benefit from. So, to encourage the expenditure of time, effort and intellectual capital we (the people of the US) grant to the inventor (or the author) a temporary monopoly on distribution, copying (and some other rights granted by the patent laws) so that the author/inventor can have time to reap the benefit of his work. After that temporary monopoly is over, the work falls into the public domain and is free for everyone's use, which is the very reason were incentivizing the creation in the first place!
This is actually one place where I depart from the 'economic theory' school of law (to which I am normally a staunch believer, and which you will notice is 100% entrenched over at the PFF). Economic theory says, the rights should be granted to whomever is able to most use them efficiently; if someone else can use them more efficiently, they can purchase the rights. Therefore, we should not have any limits on the rights (temporal or otherwise). If someone wants to utilize the technology or work, they can license it from the rights-holder; basic principles of supply and demand will dictate the price-point for that license - if there is little demand for the work, the price to license will be low, but if the demand for the work is high, the right-holder should benefit from that work's sustained popularity (this is the argument Disney uses).
But here's the catch. Under our theory of intellectual property - if we hadn't "tolerated" the grant of the monopoly in the first place, the work would have never been created. Now, of course, you can argue that "of course it would have been created, authors don't write because it is economically efficient, they write because they need a creative outlet for their ideas." But that's not really the point; the point is the Constitution provides that "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." It's very text mandates the existence of the public domain and limitations on the works, all in the name of generating more Writings and Discoveries for the greater good of our society to be available for use by all. In fact, the original "limited Times" were quite limited - Authors got 20 years (renewable for another 20 years) and patent holders got 10 years (I think). A far cry from the life+70 and 20 years, respectively, they get now.
The Times are limited because we want works to fall into the public domain. We want works to be available for use by others to build upon. We want the technology in patents disclosed so that others may analyze and improve upon the inventions. Soon, our country's long line of technological superiority will be over-taken by those with less restrictive rights regimes - by countries where "everything" is in the public domain. We call those countries "pirate nations" now, but in a few years we will be paying the price for our greedy ways.
I haven't even addressed the "fair use" quote; but this is getting long, so I will cut it short like this: it seems to me that if we place temporal limitations on the monopoly in the name of "progress" that if the granted rights get in the way of "progress" or impose into areas protected by copyright or patent laws (for example, neither grants the rights-holder the right to control use) that we should sacrifice the right to the monopoly before we sacrifice the (fair) use of the Writings or Discoveries. So, when we talk about "fair use" we talk about those uses for Writings and Discoveries that, while technically infringements, we allow because either: 1) it is too difficult to monitor (e.g., private, at-home copying); 2) it is so minimal that we, as a society, don't think the rights holder should complain (e.g., book reviews, etc.); 3) it would infringe our other, more important rights (e.g., first amendment right to parody, or commentary, etc.; right to freedom of religion, etc.). These are things that "fair use" protects and I would argue that all of these are still pretty "useful."
Friday, November 18, 2005
Wednesday, November 16, 2005
Something New and Exciting In The World Of Music
I like it when people think "out of the box" so to speak (thanks to the most excellent TechDirt for calling this to my attention - even though I disagree with Carlo's analysis). What's funny is that it really isn't all that "out of the box." It's more like thinking about music in terms of science or, more specifically, chemistry, or physics (or even I suppose, biology, or genetics) - hmmmm...I guess that pretty much covers all of science - so yeah, think about music in terms of analyzing science. Break down the product into its component parts.
When you buy a CD, you are buying a copyrighted work. Actually you are buying a number of copyrighted works (songs - each of which has multiple copyrighted elements, the music and the lyrics) bundled together into a copyrighted work (a compilation that is a separate copyright) and packaged with some copyrighted artwork on front (and probably on the back and inside the booklet, too). The law traditionally thinks of copyright in terms of "bundles of rights." A "copyright" gives the author the exclusive right to do a number of things for a number of years (life of the author plus 70 years, or 120 years if an anonymous work - or something very similar to that, in any event). The author is given the right to control among other things, copying and distributing. (note: copyright does not cover the right to control "use" that's a right you freely give up when you buy a file from iTunes or some other place that sells DRM'd files; just one way that industry practice and norms are changing substantive laws without all the hassles of actually legislating the changes and putting it up for public opinion. But I digress.)
The proposal linked separates out these component parts and lets you purchase the rights you want. Instead of purchasing a .aac file of Gwen Stefani's "Hollaback Girl" you can just purchase various component parts for "Hollaback Girl" and you can get them in any file type you want. Want the right to distribute, you can buy that; want the right to make copies, you can buy that; want the right to play on your internet radio station, you can buy that; just want the karaoke (non lyrics) version, you can just buy the rights to the music and not buy the rights to the lyrics; want to buy the album art, they're yours for the paying, what type and how big do you want them. If you lose the file, no problem, you own the rights, just go download the filetype you want. In theory it's fantastic idea - pricing at its best - you can buy what you want and only what you want - the more rights you want, the more you pay, but you can get them.
Business-to-business transactions work like this all the time; a business will pay more or less for more or less contractual protection. Presumably consumer transactions don't work like this because of the high transaction costs involved. However, if there is a central rights aggregation and retail center, the transaction costs can be spread out over the entirety of the offerings making the per-piece transaction costs pretty low.
The devil is in the detail, so to speak, and the biggest problems aren't theoretical, but rather practical implementation problems with keeping each component part distinct and preventing tampering such that the consumer can pay for the lowest cost right and still reap the higher reward. The first practical problem I can think of is actually more concerned with the rights that the consumer purchases, what do you do when the copyright term expires?? Contrary to the music industry's (or movie industry's, or Disney's) wishes, copyright is not infinite - it does end. Of course, this is fairly easy to account for because the copyright duration calculation is fairly heuristic and just entering the 'date of authorship' and the type of author (work-for-hire, individual, anonymous, etc.) would make the calculation simple.
More importantly though, how do you discern regular copying (me making a copy for Brian) from backups that are legally protected by the Copyright Act? Of course, the initial argument is: what do you need the backup for? If you lose the file, you own the rights in perpetuity, just go download it again. But there you run into another problem. How do tell if a person has 'lost' the file, or just transferred it to someone else against the terms of the agreement? One answer is hardware authentication - every piece of electronics you own can be 'registered' with your own personal id (perhaps a swipe of your driver's license, or other state or [enter diabolical laugh here] national id) and when you buy the file, you enter your personal id and it will only play on devices that are authenticated with your own personal id; if you buy "copying" or "distribution" rights, you would swipe your own id and the id of the person to whom you are transferring and it will only play on devices registered to that person.
Actually, not a bad idea now that I think of it, except for the obvious "privacy" issues that may be implicated. The hardware registration process would have to be fairly rigorous - though maybe not, because the hardware will only work with files that are registered to you anyway. Hardware registration could work in a whole slew of areas - computer security, home security, cell phone (or even "regular" phone) usage. In some instances the hardware would be 'locked' so that someone who steals the device can't just swipe their own id - maybe a two step process that requires two swipes (one for each person's card in the transaction) to transfer title to physical item.
Well, this got kind of far afield. But, the point I suppose is that I'm not sure we, as a society, are quite there yet in terms of implementing micro-rights-management that would be truly useful instead of just crippling. And, unfortunately, I don't really trust the record companies with it. In fact I'm not really sure who I would trust to implement it properly. I, honestly, think it would be good idea. But, as with anything that involves firmware/software, it would be easily hacked and thus would be rendered impotent anyway.
When you buy a CD, you are buying a copyrighted work. Actually you are buying a number of copyrighted works (songs - each of which has multiple copyrighted elements, the music and the lyrics) bundled together into a copyrighted work (a compilation that is a separate copyright) and packaged with some copyrighted artwork on front (and probably on the back and inside the booklet, too). The law traditionally thinks of copyright in terms of "bundles of rights." A "copyright" gives the author the exclusive right to do a number of things for a number of years (life of the author plus 70 years, or 120 years if an anonymous work - or something very similar to that, in any event). The author is given the right to control among other things, copying and distributing. (note: copyright does not cover the right to control "use" that's a right you freely give up when you buy a file from iTunes or some other place that sells DRM'd files; just one way that industry practice and norms are changing substantive laws without all the hassles of actually legislating the changes and putting it up for public opinion. But I digress.)
The proposal linked separates out these component parts and lets you purchase the rights you want. Instead of purchasing a .aac file of Gwen Stefani's "Hollaback Girl" you can just purchase various component parts for "Hollaback Girl" and you can get them in any file type you want. Want the right to distribute, you can buy that; want the right to make copies, you can buy that; want the right to play on your internet radio station, you can buy that; just want the karaoke (non lyrics) version, you can just buy the rights to the music and not buy the rights to the lyrics; want to buy the album art, they're yours for the paying, what type and how big do you want them. If you lose the file, no problem, you own the rights, just go download the filetype you want. In theory it's fantastic idea - pricing at its best - you can buy what you want and only what you want - the more rights you want, the more you pay, but you can get them.
Business-to-business transactions work like this all the time; a business will pay more or less for more or less contractual protection. Presumably consumer transactions don't work like this because of the high transaction costs involved. However, if there is a central rights aggregation and retail center, the transaction costs can be spread out over the entirety of the offerings making the per-piece transaction costs pretty low.
The devil is in the detail, so to speak, and the biggest problems aren't theoretical, but rather practical implementation problems with keeping each component part distinct and preventing tampering such that the consumer can pay for the lowest cost right and still reap the higher reward. The first practical problem I can think of is actually more concerned with the rights that the consumer purchases, what do you do when the copyright term expires?? Contrary to the music industry's (or movie industry's, or Disney's) wishes, copyright is not infinite - it does end. Of course, this is fairly easy to account for because the copyright duration calculation is fairly heuristic and just entering the 'date of authorship' and the type of author (work-for-hire, individual, anonymous, etc.) would make the calculation simple.
More importantly though, how do you discern regular copying (me making a copy for Brian) from backups that are legally protected by the Copyright Act? Of course, the initial argument is: what do you need the backup for? If you lose the file, you own the rights in perpetuity, just go download it again. But there you run into another problem. How do tell if a person has 'lost' the file, or just transferred it to someone else against the terms of the agreement? One answer is hardware authentication - every piece of electronics you own can be 'registered' with your own personal id (perhaps a swipe of your driver's license, or other state or [enter diabolical laugh here] national id) and when you buy the file, you enter your personal id and it will only play on devices that are authenticated with your own personal id; if you buy "copying" or "distribution" rights, you would swipe your own id and the id of the person to whom you are transferring and it will only play on devices registered to that person.
Actually, not a bad idea now that I think of it, except for the obvious "privacy" issues that may be implicated. The hardware registration process would have to be fairly rigorous - though maybe not, because the hardware will only work with files that are registered to you anyway. Hardware registration could work in a whole slew of areas - computer security, home security, cell phone (or even "regular" phone) usage. In some instances the hardware would be 'locked' so that someone who steals the device can't just swipe their own id - maybe a two step process that requires two swipes (one for each person's card in the transaction) to transfer title to physical item.
Well, this got kind of far afield. But, the point I suppose is that I'm not sure we, as a society, are quite there yet in terms of implementing micro-rights-management that would be truly useful instead of just crippling. And, unfortunately, I don't really trust the record companies with it. In fact I'm not really sure who I would trust to implement it properly. I, honestly, think it would be good idea. But, as with anything that involves firmware/software, it would be easily hacked and thus would be rendered impotent anyway.
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