Scrutiny

This is excellent news:

President-elect Obama has championed the creation of a more open, transparent, and participatory government. To that end, Change.gov adopted a new copyright policy this weekend. In an effort to create a vibrant and open public conversation about the Obama-Biden Transition Project, all website content now falls under the Creative Commons Attribution 3.0 License.

This may be one of those moments where people will think I’m obsessing over small details, and to some extent its true. But this is a very important gesture, with real consequences. The Obama team has shown some real savvy about the opportunities and implications of new media. I was very glad to see that they plan to post their weekly address online and to their YouTube channel, making online video the 21st century replacement for the radio “fireside chats” of FDR. Opting to make these videos, and the other materials they post, open for redistribution and reuse opens up a wealth of material for citizen commentary. More than that, it indicates their commitment to transparency, free speech, and participation.

On the other hand, it’s worth noting that publications of the federal government, like court decisions and Senate reports, are traditionally in the public domain, i.e. with no copyright at all. The whitehouse.gov site does not have a copyright statement that I could find, so its not clear what their policy is. One might argue that, with a CC license, the Obama campaign is being slightly more restrictive than should be expected. However, by posting the CC license, they make an explicit assurance to users that they my distribute and remix as they see fit, which is by far the bigger issue. The very absence of a copyright statement on the current White House site could leave re-users in a grey area, unsure of their rights. The Obama teams commitment goes further, in that the online videos will be accompanied by a link to a high-res Quicktime version, so those interested in excerpting and remixing will not have to make do with the low-res YouTube version.

This is also a substantial vote of confidence for Creative Commons, and yet another moment in the slow move towards the widespread recognition that copyright maximalism simply cannot persist online, and a more moderate balance of rights is required.

Ah, to get back on topic… The “Prioritizing Resources and Organization for Intellectual Property (PRO IP) Act” was just signed into law by President Bush, after passing the Senate and the House last month. I haven’t looked closely at this bill yet: here are two commentaries from William Patry (before he silenced his public blog) and Cyrus Farivar at Machinist. The main contributions of this bill are two: to massively increase the kind of financial penalties that can be sought in a copyright infringement claim, and to create an “IP czar” position inside the White House.

The first change is curious, but not surprising. The justification for the change is to signal that the US government is serious about piracy. But I think I agree with Patry, that the main thing it does is give the music and movie industries a phenomenally better position from which to pursue their tactic of punishing individual downloaders. In the one case that has been seen through to a monetary award, Capitol v. Thomas, the record labels received $222,000 for 24 songs that Jammie Thomas had made available on a peer-to-peer network. This kind of damages award helps a record label make the case to a downloader that they should “pre-settle” with them before a lawsuit ever occurs, for somewhere between $3000 and $5000. What will that pre-settlement number look like, now that the possible damages have increased 100-fold? What’s curious about this, in my mind, is that many have argued that the existing damages were too high — set to penalize traditional pirates, stamping CDs in a warehouse, they were too large for the case of online file-trading. Part of the question is what the damages represent, and how should they be set: some (i.e. the record labels) argue that the online fil-trader can do more damage, passing their song to millions with one click. The other way to look at it is that the punishment should fit the crime, and putting a few songs in your upload folder is a much smaller violation, in terms of criminal intent or effort, than setting up a street-corner piracy network.

As for an IP czar, I can only imagine. Maybe, in an Obama administration, it could be his friend Lawrence Lessig?

I don’t know if I’m actually going to get around to it — so many different directions to take one’s research, one can’t do them all — so I thought I would just post this and let anyone think it out for themselves. But I’ve been thinking a lot lately, ever since I published my book, about how to study copyright “on the ground,” to move from the places where the rhetoric about digital copyright is produced and circulated, to where the mundane practices that grapple with and, in quieter ways, shift the workings of copyright in the contemporayr moment.

One of the most vital questions for how information is regulated and culture is shaped, and that copyright offers such an ideal insight for understanding, is to look into the particulars of the interlocking of technology, law, culture, and practice. However, most of the scholarship so far has tended to look at the issue on a very broad, macro-social level: Congressional mandates, court decisions, public debates, cultural controversies. (My book is certainly guilty of this top-down and sometimes generalized perspective.) To deepen our insight into these problems, we must also examine not just the biggest changes and the loudest debates, but also the ways these arrangements play out “on the ground.” How do designers of new technologies understand their copyright obligations, and how do they incorporate those obligations into the tools they design, amidst other economic and practical pressures? How do corporate partners collaborate on techno-legal strategies for enforcing their copyrights, and how do they persuade legislators, the courts, and the public to see it their way? How do users come to understand what copyright is, and in what way do they incorporate or disregard it in their everyday habits of acquiring and producing culture? Insight into these practices will illuminate the ongoing debate about copyright in a digital age. But the question extends beyond the particulars of copyright: how are the rules of information production and knowledge in a digital environment conceived and imposed? How do the various participants in this process understand their role within it, respond to pressures, and rationalize their activities? How do their efforts extend, normalize, or undercut these changes in copyright and information regulation. How are we building what will become ‘digital culture’?

The discussion of digital copyright needs much more ethnographic attention to the lived realities of all this. These questions require a methodological attention to the real spaces and practices in which decisions are made, elements come together, problems are grappled with. Getting inside the rhetorical debate means examining people in their actual social contexts: in the cubicles of software designers, in the meetings of industry consortia, in the offices of media producers, in the dorm rooms of users. It will be very interesting to figure out what the right ethnographic sites should be, which information practices and local discourses are revealing of the complex lived tensions between property and not, which arrangements most need to be drawn into focus and dissected. Is it something like Pirate Bay, where the political dimension of copyright violation is most explicitly articulated? (There’s been some recent work about Pirate Bay — I saw a talk a few months ago dealing with just what you’re pointing to, the way Pirate Bay is moving itself from an outlaw community to a legitimate political force.) Is it Brazil, where the mew politics of IP is not just technological motivated, but wrapped up in seeking alternatives to Western models? Is it at Creative Commons, where people are seeking to shift the debate and locate a third way? Is it in the dorm rooms of avid downloaders, where the anti-piracy rhetoric of established industry reaches for the American “digital native”? (I don’t much like the term, but it makes the point.) Is it with musicians, grappling with a shifting landscape of circulation, the long and tortured history of the role of record labels, and the swirling rhetoric? I feel like these are the obvious ones, and that part of what needs to be done here is to ferret out where else this lived experience of information and property needs to be studied. Still, each of these (and lots I’m not thinking of) have real potential.

Unintended consequences are a bitch. Every once in a while, I find myself feeling sorry for the RIAA and their industry partners. Not only did they fail to anticipate the scope of online file-sharing, and refuse to look into it early for business opportunities, and then come down too hard on their own customers. But they went for, and continue to go for, DRM as a solution to their bleeding business model. (I don’t feel this way all that often.)

So, some bits of news from the DRM battlefield that I’ve been sitting on (cleverly digesting? or failing to get around to?), all of which point to not only the miserable failure of DRM, but the ways it has locked the music labels and retailers into a whole set of unexpected, additional obligations and liabilities.

* First, just to finally prove the point, The Guardian reported last month that removing DRM from iTunes downloads has had no discernable effect on music piracy. I’ve only got this secondhand (hey Guardian, where’s the link to the report that states this?) but I presume it means that the DRM-free tracks from EMI were not showing up any more quickly or in any greater numbers on p2p networks than other tracks from other labels. (Perhaps the EMI tracks, which are DRM-free only in the sense that they have no use restrictions, but are still in a closed AAC format that can carry metadata, had markers in it that could be tracked as music appeared on file-sharing networks — I don’t know.) There are a number of explanations for this, the primary being that all these tracks are also released on CD, which also has no copy-protection; also that many uploads come from inside the industry, before consumer-grade technical protections have been applied; also, as is pointed out here by a representative of Big Champagne, there may not be that much overlap between the population of users who buy from iTunes and the population who upload to p2p networks anyway. Still, it doesn’t speak well for the value of DRM. I have argued elsewhere that combating piracy is not the only or even the primary reason why the music labels like DRM; however, it is one aim, and the most public one, and the more it proves illusory, the worse off the music labels are. (Of course, this may also undercut the claim that DRM and other restrictions are actually driving people to p2p networks. If they were, the EMI tracks should be showing up less than the others, one might hypothesize; not having the data, I can’t speak to this.)

* Second, researchers at the University of Washington studied how music industry lawyers were tracking downloading via BitTorrent and sending out their DMCA “takedown” notices, and were able to spoof them into sending letters to users whose devices were not sharing copyright music, weren’t even connected to a p2p network — weren’t even computers. The report, called “Challenges and Directions for Monitoring P2P File Sharing Networks: or, Why My Printer Received a DMCA Takedown Notice” raises questions about the legitimacy of this legal procedure, if it can so easily be exploited to implicate innocent users. The key, it seems, is that the RIAA is monitoring whether a user searches for a file, and not also checking if they followed up by downloading it. This is similar to a point that Steve Worona of Educause made at a recent talk, where he told of the RIAA admitting that universities who use the Audible Magic blocking software on their campus networks can still get DMCA notices, because students could still search for files, even though the block prevents them from downloading them. (And, it should be noted, merely searching for unauthorized copies of copyrighted music is not illegal.)

* Third, Microsoft announced, but later backpedaled when users went bonkers, that they were going to shut down their license servers. The quick and dirty is, if you buy music from MSN for your Zune (or from Apple for your iPod), that music is authorized to play on your particular computer only. Try to move it to another computer, or even reinstall your operating system after a crash, and you have to prove to MSN or Apple that its still you, by entering your password and reasserting your license to those tracks on a new device. (This is how Apple limits how many devices you can move your iTunes tunes to.) So Microsoft didn’t want to deal with this process anymore, and decided that as of August, users would simply be stuck with the device they’re using. They could never move their music again, because that authorization call to Microsoft would go unanswered. People flipped, and so Microsoft flipped. But it’s a little reminder of the business music sellers have gotten themselves into — overseeing authorization to users, to continue to use the music they’ve already purchased… forever.

* Finally, the cruel and ironic reality. Throughout the copyright wars, the persistent fear of the music industry was that their product, once something that reasonably carried a price tag, would evnetually seem free to the next generation of users, like water. They assumed that piracy would cause this change. Perhaps it has. But it is becoming increasingly clear that this may be their only viable business model in the future. This report from The Economist, after detailing the continuing decline of the music industry, notes the deal struck between Universal and Nokia, to create the “Comes With Music” plan. You buy the top-tier cell phone, it gives you a year of access to unlimited Universal downloads, which you even keep if you switch phones or cell provider; Universal takes a cut of the cost of the phone ($60, it is told). Or, yeesh, a “piracy tax” in your ISP bill, as apparently the RIAA has been begging Congress for recently. The Guardian article, noting the Nokia deal, predicts that Apple will look for a similar model to go with the iPod, and imagines a three-tiered future: some high-end music consumers pay a little for DRM-free downloads of superior sound quality; the bulk of us get our music “free” in the form of a flat fee bundled into our technology purchases, and the bottom tier will be free music with embedded ads, a la SpiralFrog.

By embracing what looked like a technological fix, and found themselves unwittingly beaten by a technology company who could play the game better, will the music industry find itself entirely beholden to, or swallowed up by, the technology industry? providers of mere data? When every digital technology “comes with music,” will music become the informational equivalent of cole slaw?

Mmm, cole slaw.

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I don’t have anything particularly profound to say on this one, except that the process of pushing on every possible edge of copyright to their advantage has led the record companies
into a kind of mania. From the EFF:

In a brief filed in federal court yesterday, Universal Music Group (UMG) states that, when it comes to the millions of promotional CDs (”promo CDs”) that it has sent out to music reviewers, radio stations, DJs, and other music industry insiders, throwing them away is “an unauthorized distribution” that violates copyright law. Yes, you read that right — if you’ve ever received a promo CD from UMG, and you don’t still have it, UMG thinks you’re a pirate.

The EFF is, of course, picking up one comment in a brief that is a little more subtle. UMG is suing Troy Augusto for selling the promotional CDs he received from them over eBay.  Augusto claims this is protected under the first sale doctrine, the same rule that lets you sell books to a used bookstore. UMG doesn’t like this. But in the process, they have to follow their tortured logic to its own conclusion:

Augusto testified that “a common way to dispose of them” is to give unsold promotional CD away, or he may throw them away. Both are unauthorized distributions. (from the UMG brief [PDF])

This is the kind of crazy that makes the whole RIAA effort just seem untethered to most people, when they get a glimpse. But what I find more curious is that, among a couple of different claims, UMG is arguing that first sale doesn’t apply here because the promotional CDs weren’t sold. As such, and because they are labelled as a “promotional copy,” Augusto shouldn’t have the right to re-sell them. Unfortunately, this is exactly counter to the argument the music and movie industries had to make when they pushed the NET Act through, and worked to criminalize peer-to-peer downloading: even though no money changes hands when someone trades software or music, the industry considers it a commercial act because it replaced a sale.

There is a logic in our legal system, that the process should be an adjudicated one: the judge decides, and as such, the parties involved can more or less try anything. A trial lawyer is not responsible for deciding if their client actually murdered someone, in fact they are obligated to give them the best defense regardless. In these kinds of copyright suits, except if the court finds a plaintiff to be wasting the courts time or absuing the law itself, the logic suggests that they can throw any argument against the wall to see if it sticks. But its troubling to me that this logic seems to permit stakeholders like UMG to plainly disregard any concern for what’s reasonable, what’s workable, what’s not that big a deal, what might be progressive, what’s tradition, what’s necessary, and instead just push their interests into every conceivable corner of copyright law, and see what these fishing expeditions turn up. At what point are we even asked to think as citizens, as part of society, as having collective responsibility, rather than self-interested individuals within it?

OK, so I went the profound direction. (Well, you can be the judge as to whether I actually got there.)

Professors Troy Schneider and Benjamin Bates have posted some really thoughtful reviews of my book, at the Resource Center for Cyberculture Studies, and the site’s host, David Silver, invited me to craft an author’s response. You can find the reviews here and here, and my response is posted here, and is as follows:

It’s with a sigh of relief that I read the thoughtful reviews from Professors Bates and Schneider — its reassuring to find that readers’ reactions are not far from my own, about the book’s merits and its flaws. How unnerving it would be if someone found a glaring error I couldn’t even recognize. I’m grateful that both found some value in the book, and I completely agree with the main concerns, that the book is somewhat dated, and does more to connect existing scholarship that to veer off into its own. Let me speak to each.

One of my goals in writing Wired Shut was to put three bodies of literature into conversation. Much of the legal scholarship on the digital copyright debates and the (at the time) emerging issue of technical content protection was astute and enlightening. But inside of the traditions of legal studies, this work did not feel the need to approach these questions in terms of the social dimensions of technologies or the cultural formations emerging around them. These were legal and economic questions, either of legally-managed efficiencies upset by technological change, or first principle rights constricted by corporate actors. Technology appeared in these arguments either as cause or context, but almost always as a thing apart from history, social contest, or cultural meaning. So it seemed important to introduce it to the sociology of technology being developed in Science & Technology Studies and the sociology of culture conducted by the more historically-oriented members of my own field of Communication. (I have by no means been the only one working to reconcile some of these literatures: the work of Siva Vaidhyanathan, Chris Kelty, Kieran Healy, Kembrew Mcleod, and Ted Striphas have also helped advance this conversation.) This did mean, I suspect, that my intervention was more about playing host a conversation than being a particularly loud voice in it.

I do hope that there’s a contribution made by Wired Shut, in offering a vocabulary for parsing technocultural dilemmas like copyright. I’m glad Professor Schneider agreed. I still find my notion of the “regime of alignment” a useful insight — that the regulation of a cultural practice depends not just on a forceful legal regime, or a guiding business model, or a moral assertion, but all of the above. Those who are invested in the future of copyright have utilized all of these mechanisms to pursue their particular agendas. Further, each piece helps obscure the others, and diffuse responsibility for the quite vigorous changes in the contours of cultural discourse they’re attempting to generate. An industry lobbyist can downplay the new law they’re asking for by assuring legislators that, in the end, the market will decide; in another venue, the same company can debut their new business plan, placating critics that copyright law will remain a vigilant limit on their reach. This jigsaw puzzle regulation obscures itself through its own fluid complexity, making it hard to pull all of its details into focus. These tactics are by no means exclusive to questions of copyright.

The second concern is that the work is dated, an issue that has haunted me as far back as the start of the dissertation that was the precursor to the book. Whether it was my own work pace or the inertia of the academic publication process, it became clear that I could not write the scholarly analysis I wanted to produce and also keep up with the issue itself. So I resigned myself to thinking of this as a (recent) historical analysis, one that of course has been superceded by events, but still hopefully provides insights with enduring value, insights that may even resonate with those events that have followed. I’m convinced that, at least today, the academic publication machine is structurally unable to handle this kind of analysis, and is in dire need of reform. And while I have been using my blog sporadically to make more timely comments, it has not quite suited me as a viable medium for scholarship, yet, even though others more deft with the format have put it to very good use.

The main question brought on by recent events is, is DRM dead? Apple partnered with EMI to sell DRM-free music, then Amazon partnered with all of the major labels to do the same; Radiohead and Nine Inch Nails conducted high-profile experiments to distribute their albums without music labels and without technical copy protection, while thousands of bands, signed and unsigned, are playing with MySpace, music blogs, and their own sites to offer some of their music free for promotional purposes; the DRM encryption system for the Blu-Ray high-def video format was cracked, causing a stir when the Digg recommendation site first took down user posts about the crack, then reinstated them when users swamped the site with re-posts; recently, Random House and Penguin publishers announced a move to mp3 format for their audiobooks, while more television networks are partnering to provide online streams of their shows, free with advertising. Just as some suggested that music was the canary in the coal mine, a portent of what was to come, it may be that we are witnessing a turn, once again led by the music industry, away from DRM.

Perhaps. In some ways, the reasoning for these apparent about-faces is pointed to in my book. The music labels are not leaving DRM behind because they believe it to be cultural or politically wrong, or even because it never proved to be particularly effective in curbing peer-to-peer downloading. They’ve begun to leave it behind because its costly — not just financially, which it is, but politically. DRM has elevated the hardware makers to a new position of control over price and distribution. Apple, in part because of a technical system foisted upon them, is now the biggest music retailer in the world, and the keeper of the most popular music device in the world. DRM, along with some savvy marketing and quality design, put Apple in this position.

And while the music industry may be willing to swim without the DRM life vest, I suspect that the movie industry shows no such inclination, and is likely not to have to discard it. As I note in the book, Hollywood always been savvier than the music industry in this regard: leasing you access to a film rather than selling it outright, cascading releases across technical environment and price point, and instituting restrictions before their customers get comfortable with freedoms they’re not willing to allow. So DRM has a life in the years to come. Moreover, in many ways we’ve already embraced both the underlying logic DRM depends on — technologies we use that are not our own, content we lease rather than buy, interfaces that closely manage our commercial and experiential engagement with information — and we’re building computer platforms designed for them. There will always be those who hope to manage the circulation of information, whether for politics or profit; we have now encountered, and largely accepted, a new road map for that kind of information choreography, and the political, institutional, and discursive terrain has been reconfigured in ways that will allow, and promote, these kinds of restrictions.

Many thanks, again, for the thoughtful reviews. in the spirit of being timely and engaged, I’ve posted this on my blog, and welcome your thoughts.

The Chronicle for Higher Ed reported this week that a decision was handed down in the copyright case against Turnitin, the plagiarism detection site. (Quickie: Schools subscribe to Turnitin, and teachers require their students to submit their papers to them before handing them in. Turnitin compares the new paper against their database of existing papers, indicates whether there’s plagiarism or not. And, they add the new paper to their database, meaning the database grows. Four students sued the parent company, iParadigm, for copyright violation, in that the site makes a copy of their paper, and [in cases where it later detects plagiarism] can occasionally distribute that paper to specific faculty.) Turnitin claimed fair use, that their use is transformative and does not hurt the commercial value of the original. The court agreed.

The Chronicle came to the same conclusion I did when I first heard the news — this is very good news for Google Books. If the APA lawsuit against Google ever goes to court, Google is going to need to argue that, though they do make single copies of books, they do so not for their redistribution or in a way that harms the commercial value of the original, but for a different use. I have argued elsewhere that, though I think Google should be allowed to do this, that trying to stretch and pull fair use to cover all of these “indexing” kinds of activities is problematic for fair use. Apparently, this court saw fit to extend fair use to cover this.

When Apple emerged as an online music retailer, it seemed that those who oppose DRM had won the battle but lost the war. Apple uses DRM, but impose much milder use restrictions than the record labels were proposing with their own music services. Apple’s lenient policy, combined with the popularity of the iPod and iTunes site seemed like they would settle the debate through gentle compromise, and the compromise would be that DRM would exist. My worry at the time was that, while Apple didn’t seem as bad as the record labels themselves in locking down content, it did totally close off the possibility of (legitimate) excerpting and remixing — that is, users’ “agency” with their own culture. Further, the fact that DRM would remain, become normal and pervasive, meant that we’d accept its logic, that computer platforms would be built to honor it, and it could always return in its more restrictive form.

But, as we have seen, the major music labels have step-by-step moved towards selling unrestricted music in MP3 format, without DRM. And the reason, it seems, is that DRM gave Apple an incredible amount of power in the online music market — DRM allowed Apple to tie the music labels’ content to the iPod, which users have embraced, and now Steve Jobs gets to sit at the table and dictate price and availability. Now, as the New York Times reported this weekend (Thanks, Josh, for the link), the major audiobook publishers, including Random House and Penguin, seem to be making the same move. And lo and behold, Apple reappears as the cautionary tale for why they’re letting go of DRM:

If the major book publishers follow music labels in abandoning copyright protections, it could alter the balance of power in the rapidly growing world of digital media downloads. Currently there is only one significant provider of digital audio books: Audible, a company in Seattle that was bought by Amazon for $300 million in January. Audible provides Apple with the audio books on the iTunes store.

Apple’s popular iPod plays only audio books that are in Audible’s format or unprotected formats like MP3. Book publishers do not want to make the same error originally made by the music labels and limit consumers to a single online store to buy digital files that will play on the iPod. Doing so would give that single store owner — Apple — too much influence.

Turning to the unprotected MP3 format, says Madeline McIntosh, a senior vice president at the Random House Audio Group, will enable a number of online retailers to begin selling audio books that will work on all digital devices.

I love that DRM, so problematic because it locks users to a model of consumption designed by the content providers, is being jettisoned because it locked those content providers to the hardware. Turnabout is indeed Fairplay. Ironically, while it is the DRM format lock-in that is pushing users to Audible and Apple iTunes, Audible is owned by Amazon, who is emerging as the favorite of the music labels to unseat Apple by selling DRM-free MP3s.

Now, of course, its time for Apple to use its market position again. I’d suggest partnering with Adobe to make it easy to drop PDF-formatted books and documents onto their iPhone and iPod Touch, thereby producing a powerful, and instantly superior, alternative to Amazon’s Kindle e-book reader — which uses DRM to lock people to the hardware, just as Apple did.

So the big news is that Sony BMG has announced that it will begin some arrangement for selling its music without DRM; details to follow. See the Business Week article for details. This means all four major record companies have begun to let go of DRM. EMI was the first, selling some of its catalog DRM-free through Apple’s iTunes Music Store. Universal partnered with Amazon in the fall and is rolling out its own TotalMusic service (the idea there is that a low subscription cost would be bundled into the cost of mp3 players — read: not the iPod). Warner offered some of is catalog to Amazon in December, and its alt-label Nonesuch has begun providing DRM-free mp3s with the purchase of CDs.

It is important to note that none of these labels are making their entire catalogs available without DRM just yet, so this is still toe-in-the-water time. Subscription services like Ruckus are still using DRM, as is Apple. Many of the online video providers remain committed to DRM. However, for the major record labels, who have for years been so vociferously committed to DRM, to change their policy like this suggests that the DRM issue has substantively shifted.

It would be nice to think that this move was precipitated by consumer activism, the ideological challenge of alternative models, or (dare I say) scholarly critiques. Sadly, I don’t think this is so. It’s possible that some of the activism against DRM helped focus attention on the problem of consumer frustration, though this is not the same as making the case that DRM is politically or culturally problematic. Rather (and this seems to often be the real story) it is business interests that are accidentally solving the problems caused by business interests. DRM first seemed to the labels like a viable barrier to online file-trading — and, as I have argued, it may have promised to act as a powerful new tollgate for attaching a price tag to more dimensions of music use. But this depended on hardware regulating the use of content. In a way, DRM worked too well: by inserting the hardware into this position of importance, it handed a great deal of power to hardware makers. When one emerged — Apple — who was willing to  enter the music-selling business, had a hot technology people wanted, and a powerful cultural ethos, suddenly they were at the center point of this mechanism of sale and control. DRM locked the content to the hardware, helping to drive sales of the iPod and cement Apple’s place in the digital music market. Apple could negotiate with the labels in a way that individual consumers could not. Now the labels, especially Universal, are miffed that Apple won’t budge on how they price their songs, and are finding it more advantageous to join with Amazon or experiment with new models themselves.

I spend much of my teaching and writing suggesting that cultural discourse is important, that the way we characterize issues of public importance can change how we deal with them, that civic participation is vital to bringing about progressive change. But I can’t help but acknowledge that all of that may pale in comparison to how the shifting efforts of corporations in the pursuit of profit brings about change — change that can occasionally have socially beneficial results, as in this case, but almost always accidentally, as an incidental benefit of the play of the market.

(Many apologies for the recent hiatus; life got ahead of me. And happy new year.)

Is it a sign of the times that we’re about to have a movie where the good guys get in trouble for copyright violation?

Be Kind, Rewind (trailer)

I can’t decide whether to proclaim this as the most important “fair use” movie of the modern age, or just cringe (and I like both of those guys…) But I do have great faith in Michel Gondry… and, at least for the moment, it’s scheduled to come out on my birthday.

The “official site” is still a GoDaddy default page…

In an attempt to maintain this blog as an academic pursuit, I have long held half of my
bloggy impulses in check. I love reading music blogs, and have often debated whether I could let some of this blog focus on music, just for the love of music. But I decided to wall it off, for all sorts of intellectual and (tenure-based) strategic decisions. So it is with gratitude to Radiohead, who has for many years now been my favorite artists, to give me permission to bring the two together.

Lots of people are talking about Radiohead’s recent announcement. (here’s coverage in The Telegraph and The New York Times.) They’re new album, “In Rainbows,” is available for pre-order, exclusively through this website. To buy access to the digital downloads, which will be available October 10, you pay whatever you want. Over and above a .45 pence credit charge, you set the price, as high or as low as you choose.

I just ordered the album, and offered to pay 4.92 pounds, which at that moment was $10. you could offer twice that, or you could offer a single pency, about two cents.

In addition to the digital downloads for whatever price, you can buy the “discbox” version, with the album on CD, a second CD of alternative tracks, vinyl versions, artwork, etc. Its 40 pounds, or about $81. And there’s talk of a traditional CD release in January.

Much of the talk is about what kinds of offers Radiohead will get, and I hope/assume we’ll hear at some point what people are generally proposing. Farhad Manjoo, on his blog Machinist, did some of the basic math, to figure how much they’d have to get to match what they’d get selling it on iTunes through a major label:

For every $1 song sold on iTunes, according to reports, Apple keeps about 30 cents, giving about 70 to the record label. But activists say artists typically get just 8 to 14 cents per song from the deal — or about $0.80 to $1.40 per album sold digitally.

So that’s the main test here; in order for the band to come out ahead, Radiohead needs to clear only more than a buck-50 per sale. Easy.

I have to agree with his guess, that Radiohead fans are a particular stripe, and will pay generously enough to balance out those who decide to try the album for less than $1.50 and the ones who like the thrill of paying a band two cents and getting a full album. The songs will get traded wildly on p2p networks, but that would be true if they went the traditional CD route. And all that antipathy for the major labels, whether its real or a useful posture to justify file-sharing, might tip some scales and convince some to drop a few bucks through this unorthodox model.

I’ve often argued that artists could really change this whole game — the example I always think to is Charlie Chaplin, Mary Pickford, and Douglas Fairbanks breaking from the Hollywood studio system and starting United Artists as an actor-friendly studio — a studio that survived for decades. Imagine the tectonic shift that might follow if George Clooney, Julia Roberts, and Will Ferrell just set up shop with a radical new way of doing business. Or, since its the music industry that needs renovation today, imagine Justin Timberlake, Kanye West, and Bruce Springsteen setting up a record label where artists didn’t sign away copyright, they just got support and promotion in exchange for a cut of their profits. Radiohead is messing with the system in their own way, and it pushes the question in a way that a new distributor or reseller can’t, because the justifications for copyright so often focus on the authors and artists.

Because the option to price the album as you choose is so unorthodox, it is going to get the most attention. But let’s also remember that this is a major artist selling their album online without the support of a record label. This is not entirely new: Prince has been doing it for some time, Aimee Mann did it for her last album after being unceremoniously dropped from her label. Obviously lots of unsigned bands try it. But a success in this regard by a band that has had recent success going the more traditional route does have an impact. Radiohead is working with a distributor called W.A.S.T.E. Products, who are handling the financial transactions and downloads; I don’t know what kind of economic arrangement they have with them, though I imagine some/all of that .45 is for them. But a success here, especially a high-profile one, could spur distributors like W.A.S.T.E. to emerge and offer their services.

And let’s add another wrinkle to the picture. As I write this post, I’ve been listening to nearly every track from their upcoming Radiohead album that I already paid for but can’t download until Wednesday. And I don’t use peer-to-peer networks. Nearly every song is available on YouTube in some live version, from a Radiohead appearance at Bonnaroo, or a British show called The Basement, or some other show recorded by a fan and posted. And Manjoo has a blog post with the album tracklisting, nearly every track a link to its YouTube locale. So the music’s out there, in a somewhat different form. Without a label to interfere (Radiohead finished its contract with EMI with Hail to the Thief in 2003, and refused to resign. Was George Bush the “thief” in the title, as many surmised, or was it EMI and the record industry?), no one is ordering YouTube to take these down. Will that mean fewer will buy the album, because they can just make a YouTube playlist for free and listen to their heart’s content, or will more buy because they can hear that the songs are of the quality Radiohead so regularly offers? I suspect the latter… and we’ll see… though there will be dispute as to how to interpret the numbers, how it would have been different otherwise.

And finally, some praise for Radiohead. I have long adored their music, have never been dissatisfied. They may or may not be your cup of tea, I can appreciate that. But they are smart musicians, exploring a range of sonic ideas not as some knee jerk gesture towards reinvention and not ever repeating past successes. They’re smart about the world, smart about technology, smart about making music speak to the world and still move you as music should. They respect their fans as thinkers, as listeners, as citizens. And they have proven to be very thoughtful about the industry in which they participate. It is not separate from, but I think vitally connected to, artistic practice, to have the gall, the daring, the ingenuity to challenge what seems true, to see where it may be otherwise. I do not demand that music not be a commodity — Radiohead will get paid, to some degree, no matter how this works — just that the rigidity of those commodity relations, the replacement of cultural ends with market means, the overshadowing of meaning by the overemphasis of the exchange, be shaken up from time to time. So while the academic blogger in me thinks any result from this experiment will be a fascinating insight into the intellectual questions pressing around music, copyright, and digital culture, the music blogger in me is pulling for Radiohead on this one 100%.

http://www.salon.com/wires/ap/scitech/2007/10/01/D8S0N8IO1_downloading_music/index.html

“Music Download Trial Starts Tuesday”

Joshua Freed, AP

Oct 1st, 2007 | MINNEAPOLIS — A group of record companies says Jammie Thomas illegally shared everything from Enya to Swedish death metal online. Tuesday, she will become the first of 26,000 people sued by the recording industry to take the case to trial.

The Brainerd, Minn., resident is accused of illegally sharing 1,702 songs for free on a file-sharing network. Her trial offers the first chance for both sides in the debate over online music sharing to show a jury its version of the facts.

Thomas is accused of violating the song owners’ copyrights. Her lawyer says the record companies haven’t even proved she shared the songs.

Most of the 26,000 people the record industry group has sued have settled by paying a few thousand dollars.

“We think that speaks to the clarity of the law here,” said Jonathan Lamy, a spokesman for the Recording Industry Association of America.

But lawyers for the defendants say they’ve settled because trials cost tens of thousands of dollars. Thomas’s lawyer, Brian Toder, said she was determined to fight. He declined to make her available for an interview.

“She came into my office and was willing to pay a retainer of pretty much what they wanted to settle for,” he said. “And if someone’s willing to pay a lawyer rather than pay to make it go away, that says a lot.”

Thomas is at risk for a judgment of more than $1.2 million. The recording association is seeking damages set under federal law, of $750 to $30,000 for each copyright violation.

I’m currently attending a talk by Wendy Seltzer — law prof at Northeastern / fellow at Berkman / participant at EFF / smart blogger on law plus — and she’s talking about the role that universities are and should play in the RIAA strategy of sending to universities letters indicating that someone at such IP address was allegedly infringing copyright (usually trading music on a peer-to-peer network), and offering a settlement that would help avoid an actual subpoena and potential lawsuit. The specific question, as I see it, is that the university could forward those letters to the student, which informs them and gives them options but could be perceived as doing the handiwork of the RIAA, or not forwarding it, which argues it is not their place but leaves the student unaware that they may be about to be sued. It strikes me that the particularly egregious part of the pre-settlement strategy is that it even gets around the basic legal processes of getting a subpoena, which requires at least basic evidence that the infringing occurred.

So while my initial gut says that the university should pass these along, so students know what’s happening, though I think I would like the university to be working against this strategy in other ways. But I don’t like that it appears to legitimate the strategy. I would like to stop the pre-settlement model altogether, and make it necessary to go through the more official legal due process — in part because these I wish these cases would come before courts more than they have, in case there is a legal question about the validity of calling file-trading infringement (and the RIAA is generally fearful of having these cases come before a court or jury, for precisely this reason).

Then a question posed pointed out that the statutory damages in copyright are egregiously high, in part because when they were written they were imagining not digital piracy by millions of ordinary users but commercial, large-scale piracy that preceded it. So many the damages should be lowered, making the lawsuit approach less desirable. But it strikes me that these are opposite — high damages might lead the RIAA to want to go to court, not to settle; settling is a way to ensure the decision goes there way (because there is none) but gets them less. It seems to me that the RIAA prefers the pre-settlement approach precisely to avoid the costs and risks of legal adjudication.

So, what if we (as universities?) lobbied for lower statutory damages (when the infringement is not commercial and large-scale), and also said we would not pass along pre-settlement letters, the argument being that we are opposed to the pre-settlement process as a way to avoid having these allegations abide by due process and come before the courts, and that the legal penalties need to be reasonable based on who’s doing what… and then, if both of these changes happened, we could be more supportive of the lawsuit strategy, if the RIAA still wants to pursue it, as it is being done above the board legally and its punitive regimen is not egregious.

from the Chronicle of Higher Education:

“The music industry’s lawsuit crusade against defenseless college students and housewives appears to have hit the skids lately,” Anders Bylund wrote yesterday in a blog post at the Motley Fool. That might come as news to the Recording Industry Association of America. Sure, the trade group’s “John Doe” subpoenas have been knocked around a bit in court lately. But the industry is still moving forward with its campaign of sending pre-litigation notices to college students: Just last week, 403 settlement letters were sent to 22 universities. Officials at those institutions will now have to decide between passing the notices on to students and waiting for the trade group to come calling with “John Doe” subpoenas. The institutions receiving letters this month are Arizona State, Carnegie Mellon, Cornell, Michigan State, and North Dakota State Universities; the Massachusetts Institute of Technology; Purdue University’s West Lafayette and Calumet campuses; the Universities of California at Santa Barbara, Connecticut, Maryland at College Park, Massachusetts at Amherst and Boston, Nebraska at Lincoln, Pennsylvania, and Pittsburgh; and the University of Wisconsin’s Eau Claire, Madison, Milwaukee, Stevens Point, Stout, and Whitewater campuses. –Brock Read

The Computer and Communications Industry Association (CCIA) released a report yesterday that could very well change the conversation about copyright. They attempt to measure the economic impact of fair use, using the same terms and techniques suggested by the World Intellectual Property Organization for measuring the economic value of copyright itself. This means considering various industries that depend on some way on fair use, and calculating the impact of that industry in terms of jobs, productivity, etc. This seems to be a phenomenally difficult thing to measure, of course, though probably no more difficult than measuring the value of copyright either. I haven’t had an opportunity to read through the report, so I can’t speak to the validity of its methods. But the punch line is that the industries that depend on fair use (in their sense of it, this includes consumer electronics manufacturers, educational institutions, software developers, and online service and search providers) bring in $45 trillion dollars of revenue, contributed $2.2 trillion to the U.S GDP, or 16.6%. They employ 1 out of every 8 U.S. workers, and export $194 billion in goods.

These are all measures of the total economic value of industries that in some way depend on fair use, not the value of having fair use to those industries, so it doesn’t speak very clearly about what would happen if fair use were more or less robust. These industries would not disappear if fair use did; their economic impact would likely change, though to what degree and even presumably in what direction cannot be determined. What this research does, I think, is two things. First, in a lobbying sense, the industries that depend on robust copyright protection have made a convincing argument that their business have real economic value for the nation. This puts back on the table that these other industries, the makers of tools and the keepers of information and the educators, also have a real and sizable economic footprint. Second, the fair use defense has always been a squishy one: yes, copyright has economic value, but what about cultural freedom, semiotic democracy, the right to remix, free culture, making copies… it starts to fritter away when faced with the economic heft of the content industry. It has often been pointed out that the film, music, and publishing industries have more sway in Congress than their economic scope warrants, that the computer industry is much larger in sheer dollar amounts, and could probably shift the debate if they wanted to. Maybe the CCIA is trying to do just that. (They also recently filed a complaint with the Federal Trade Commission about copyright statements, like the ones made by the NFL during every broadcast, overstate the rights they actually have and try to erase things like fair use.)

(The CCIA includes Sun, Oracle, Microsoft, Google, Yahoo, and Fujitsu, among others.)

The Chronicle for Higher Education has a report today about the “Digital Citizen Project,” at Illinois State, which has catalogued all of the network use of their students and then gathered from it data about peer-to-peer file-trading activity, scrubbed of identifying data. The project and much of its findings are available here.

There are all sorts of concerns here, about the privacy of the students, about what this data will suggest to university administrators and to the RIAA, which helped sponsor the research. But I think the Chronicle rightly highlights how this work is bound up by the ongoing tension between publishers and content industries on the one hand, and universities on the other. It is clear from the report that Illinois State initiated this project in part to help protect their students from lawsuits, and in fact negotiated with the RIAA that, in exchange for this data, their students would (to an unspecified degree) be immune from lawsuits. They also pointed out that, while the main point of the data is that there is a whole lot of file-trading going on, and much of it is moving files from on to off campus, they also looked at how successful and “anti-piracy” tool like CopySense is in spotting these transactions: the answer, not very. CopySense apparently depends on the files being traded having copyright information in their metadata, which apparently only 2.9% of the files traded did. So the threat from Sen. Reid to insert language into the renewal of the Higher Education Act that universities be required to install such anti-piracy mechanisms, is a pretty empty gesture.

I’ve asked my students, who are taking “Copyright in a Digital Age” with me, to be regularly posting on a blog, which you can find here. Right now, its really only been about a week, so they’re just getting started in thinking out the boundaries of the sociocultural questions we have to grapple with, and trying to get their head around the complexity that is copyright law. But they’re a very sharp bunch of juniors and seniors; I expect that, over the course of the fall semester, this blog will (a) reveal what happens when students are asked to systematically think out these issues, (b) may raise some fascinating perspectives and suggestions, and (c) could be another resource for those of us thinking about these issues. I may even ask some of my colleagues who appear on my syllabus, and are willing, to visit the blog and challenge my students a bit.
Feel free to explore the blog and comment if you like.

I’ll be offering an audio conference called Using Copyrighted Works: Digital Rights Management in Education through Progressive Business Audio Conferences, September 4th at 1pm. The seminar requires registration ahead of time. They keep pushing it to be a how-to presentation, but I don’t really do that, so it’ll be more about getting people to think about the implications of DRM for educational institutions like libraries, based on some of the arguments in Wired Shut. We’ll see what happens.

UPDATE: It went well, though the questions that came in were seeking more procedural answers, mostly about fair use. I don’t feel so bad, then, because what a lot of the questions wanted were clear guidelines for what they could call fair use, and I’m not the only one without answers to those questions; there really aren’t any, at least not any that have the certainty of law.

I believe you can order a CD of the conference at the PBAC site, if you so desire.

One of the interesting aspects of the battle over digital copyright and peer-to-peer file-sharing has been the shifts in the discourse around it. The entertainment industries have worked not only to create new laws and more vigorously enforce old ones, not only to shift to DRM locks as their primary mechanism of enforcement; they’ve also worked very hard to change the tenor of the debate. And it has worked: from the early days of Napster when a magazine as mainstream as Time could headline an article “Is It Sharing or Stealing?”, the public coverage of the issue has accepted the arguments that downloading is (a) indisputably illegal, (b) very bad for business, and (c) morally wrong to some degree. These are exactly the talking points that people like Jack Valenti hammered at in every press opportunity, every speech on campus, every appearance before Congress.

So it’s refreshing to see an article like “File-Sharing 101″ — part of a “back to school” series in Wired that also includes more consumer-friendly reporting, like what tech gear you need and what the best social networking sites are. The article compares the benefits and drawbacks of using BitTorrent, Direct Connect, and various “one-click hosting” services like Megaupload to collect music and movies. Most of the discussion is about the availability of content, the technical limitations, the ease of use. The legal risks are a factor, but the article takes a distinctly agnostic stance about whether those legal risks are worth obeying for their own sake. The article ends with the following:

Legal interpretations may vary about what constitutes legitimate sharing of copyrighted content, and we’re not lawyers. Sharing a few music clips with your friends may not violate copyright law, but distributing the latest Hollywood blockbuster to 30,000 other fans almost certainly does. So give some thought to your file sharing before you start. While one-click hosting is fairly private at the moment and darknets keep content away from prying eyes, it’s all for naught if your university actively monitors traffic and is determined to shut down peer-to-peer activity.

We recommend you check your college’s “acceptable use policy” and similar documents to determine their position on file sharing before engaging in potentially illegal activity, or at least make sure you save three grand, the going rate, in case you get caught.

This is a relatively unique statement in the mainstream press, both for its defiantly casual attitude about the legal issues — suggesting that you have $3000 around to cover the potential legal penalty is hardly a moral admonition from on high — and for daring to suggest that some limited sharing may in fact not be a copyright violation at all. This has still not been directly tested in a major court, as far as I know; the Napster judgment simply assumed it, as a step in the logic of finding them liable for contributing. The RIAA has been relatively careful about settling most of its lawsuits against individuals, in part so that the question does not get asked.

It’s nice to see Wired, a magazine that has generally seemed to have discarded its defiant digital politics for a more business-friendly stance (compare their recent covers [Stephen Colbert, Transformers, Heroes, Jenna Fischer of The Office, even Martha Stewart] to those of their first few years [Marc Andressen, John Malone of TCI, Laurie Anderson, Richard Dawkins, Nicholas Negroponte of MIT] for just one clear sign of this shift), jostling this discursive frame a bit.