Copyfutures

There was more than one horse in the barn!

        We've heard repeatedly that "the horse is out of the barn."  This phrase is used to refer to the proposition that because P2P and Internet technologies have such a large adoption rate, and are so easy to vary, any technology-based attempt to prevent infringement are futile.  This should not be taken as fact though, it would be possible to regulate at least domestic infringement if Congress were to adopt some extreme policies.  One easy way would be to impose a duty on every ISP to ensure that no copyrighted materials travel on their network except via a specifically authorized port requiring prior notice to the ISP.  From a realistic perspective, this is unlikely to happen, we can throw the phrase around w/o consequence.

    However, that's only one of the horses.  If our end goal is the prevention/reduction of copyright infringement, we can extend the metaphor a bit further.  The horse that hasn't quite made it out of the barn is the social norm of paying for music.  P2P has only been around for 6 years, and it's high popularity has probably been the case for only the last 4 years.  I was 11 years old when I made my first music purchase (Gun's n' Roses, Appetite for Destruction - laugh away!).  Using Kaus's Theorem (I'm not unique, many people must be like me!), we'll assume that people generally start buying music around 9-13.  People who illegally download music today have most likely been doing so for only 4 years or less. 

    Music consumption, at least prolific music consumption (not necessarily purchase), typically occurs during the adolescence and early adulthood.  Record companies are under pressure because they recognize that it's not too late to re-socialize current P2P infringers to the norm of paying for music.  My concern is that the passage of time, coupled with a weak response from record companies during this time, will cause a generation of potential customers to believe that music should be free.  They will never, or only rarely, experience the act of paying for music, and in turn, will come to think of music as a free commodity rather than a valued good.

    This is the horse that really matters.  Perhaps you can accuse me of 20/20 hindsight, but I never thought that the solution was going to be purely technology-based.  More realistic would have been a government mandated technology standard, but fortunately, the CEA has successfully kept that "solution" at bay.  Software (P2P technology) is essentially information, and when coupled with the Internet, the result is a viral technology that is near impossible to stop.  We haven't been able to stop the distribution of strong encryption programs, a tool undoubtedly used for terrorist communications.  Likewise, we were unable to stop the dissemination of our nuclear secrets, which is arguably more important than copyright infringement.

    We must remember that any government attempt to hinder the development and spread of "bad" technology while enabling the growth of "good" technology is likely to have unintended consequences.  This is because government only has blunt tools at it's disposal; the Betamax case should offer easy proof.  That is a slippery slope not worth traveling down. 

    Technology has transformed our lives, mostly for the better.  It has enabled us to do great and terrible things.  The 9-11 hijackers went to travelocity.com in order to pick flights that had a low number of passengers so that they could more easily control them.  Travelocity provides real time data on passenger loads.  Good for us when vacationing, but good for terrorists also, when planning an attack.  Yet no one blames travelocity, and rightfully so. 

    The Internet was originally created so that our defense networks could continue to communicate with each other in the event of a nuclear attack.  In its early incarnation, it was a four node network between four universities, and primarily used by academics to collaborate on projects.  No one foresaw the tremendous potential the Internet held, and that is to be expected.  We shouldn't hinder the development of certain technologies simply because of how some choose to use it.  We should punish the act, not the technology.  When someone is murdered in a shooting, we don't punish the gun. Oh, wait...

The Roots... of Copyright

 Greenbag, self-described as "an entertaining journal of law," has an interesting article titled, "Constructing Copyright's Mythology" by Thomas Nachbar, Associate Professor of Law at the University of Virginia.  PDF file also here.

Nachbar provides some historical perspective on copyright law, including several interesting facts:

1. Noah Webster, of dictionary fame, was an very influential member of a small group of authors that went from state to state, seeking passage of state copyright laws.  Between  1782 and 1786, they succeeeded in getting 12 of the 13 states to adopt copyright laws.
2. The notion that the Copyright Term Extension Act of 1995, aslo known as the Sunny Bono Act, was somehow "a recent response to intense interest group pressure, which might have suppressed [Congress's] historical Constitutional good sense in the intellectual property context" is false.  Congress has extended copyriight terms repeatedly and consistently.

Nachbar's main argument refutes the proposition set forth in Eldred that copyright "must promote creative activity."  He disagrees w/ this quid pro quo notion of copyright by pointing out that Webster travelled from state to state, lobbying for copyright protection after his book was already published.  This hardly seems like a good argument since the the promotion of "creative activity" could apply to a subsequent work.  Webster could have been promoted to some future creative activity upon the realization that he would be granted a copyright in that work.

In any case, it's an interesting article worth reading. 

Towards a New Copyright Regime: A Modest Proposal

Note: This post represents my proposal for an ideal copyright regime, free of any political considerations with respect to feasability of adoption.  My later post will differ in that I will advocate the use of  certain tactics by content providers, who, on the whole, I tend to support more than those who oppose them.

    "Property, a creation of law, does not arise from value, although exchangeable -- a matter of fact." So begins this post by Prof. Cass Sunstein, quoting J. Holmes in INS v. AP. Although Sunstein’s post is on a different topic, he explains the quote:

“What Holmes is saying here is that even though property is exchangeable, it doesn't arise from value; it's a creation of law. And that's simply a matter of fact.”
…

“Property rights, as we enjoy and live them, are a creation of law; they don't predate law.”

    Like Holmes, I take this as simply a matter of fact. It is the foundation for my proposal so if you disagree, you’ll have to play along for this post to make sense. Property rights, whether in real or intellectual property, are not “natural rights.”  Private property rights (aside from the Crown) is a relatively young idea and practice; the notion of property rights in IP even younger. This proposal is aimed at works that can be digitalized and easily and widely distributed; namely music and movies.

The 2 questions I’ll try to answer are:

1. What is the goal of copylaw?

2. What regime would best further that goal?

First Things:

    The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their writings. U.S. Const, Art I, sec. 8.

    Even though this proposal is an ideal one, free from political considerations, I’ve restricted myself from any solution that requires modifying the text of the Constitution. Since we’ve covered this in class, I’ll exclude any detailed discussion. Like real property rights, the goal of copylaw is essentially a public policy argument, “To promote… the useful Arts.” The usefulness, or utility, of a particular work varies depending on the person deriving utility. I find Milli Vanilli’s most recent album "useless" in this sense.  Perhaps you agree...

    In this light, my proposal serves a pure public policy goal, concerned only with maximizing overall utility.  While imperfect, I offer the free market system as the best mechanism to measure the utility, or value, of any particular piece of IP.  Simply put, the goal of copyright law is to make the most money possible for society as a whole.  Of course, we have to take into account fairness norms; we couldn't, for example, revoke someone's copyright simply because we thought they weren't maximizing the utility of a particular piece of IP.  In this sense, the proposal should greatly reflect the society's current notion of private property (and IP) as a natural right.

    We’re limited in our means: “securing for limited Time to Authors and Inventors the exclusive Right to their writings “

    Implicit in the text is the notion that a grant of exclusive right in a work – essentially,  the exclusive right to profit from ones labor – is an incentive that encourages the production of more “useful [a]rts” by society as a whole. This gain must be balanced against the lost potential gain the public bears for the duration of the copyright.  For example, George Clinton may have written a song back in the 70's that is no longer sold anywhere.  The Backstreet Boys may want to sample a riff from that song in order to create a new, hit song.  Clinton could refuse to sell the right to sample that riff, even if offered $1 million, and society overall would be poorer for it.  Following my proposal to an extreme conclusion, the governement would be authorized to rescind the right of exclusivity from Clinton and grant permission to the Backstreet Boys to use it.

    But this is an individual case, and even though we don't behave rationally in every instance, on the whole, the market behaves both rationally and efficiently.  Most people could be offered some price that they would agree to so the fact that there are some instances - and there always will be - where the market is not efficient does not show that the overall market system is inefficient.

    My argument is that an exclusive right to profit, for a limited time, from a piece of IP is the regime that would best serve the goal.  The time should be limited to 70 years from the time of creation (roughly one generation), however, this is not to be applied retroactively.  I support this long duration because certain works and brands possess great value and reflect a substantial investment on the part of the copyright holder.  Disney holds copyrights to their many characters and their movies, which they have invested a substantial amount in.  Protecting their ability to profit from this work is in society's best economic interest - unless you believe that society at large would be better able to generate revenue from Disney's copyrights.

    Registry: There should be a registry of all works copyrighted, more to serve notice to potential infringers than anything else.  However, the registry should be free, much like the "Do Not Call" registry.  This is to prevent an undue burden being placed on individuals who create IP.

Watching Movies Under The Stars: Guerrilla Drive-Ins

Do you remember the Drive-In? I am 25 years old and I remember seeing "The Empire Strikes Back", "Return of the Jedi", and "Ghostbusters" among others at my local drive-in before it closed. What used to be as American as baseball and apple pie is now almost extinct.

Well, not quite, in Santa Cruz and numerous other counterculture underground communities around the nation.

The question posed here is whether or not it is a copyright violation to have a public viewing of a movie under the stars, with a projection onto a blank warehouse wall for instance. If admission is free, is there a violation of copyright law? Is it infringement? What if trespassing is involved?

"For three years, cult-movie buffs have been organizing 'guerrilla drive-ins' in a number of cities, rigging together a nest of digital projectors, DVD players, and radio transmitters or stereo speakers, spreading the word online, and assembling on parking lots or fields to watch obscure films beneath the stars."

"They project the image onto warehouses or bridge pillars, tune their car stereos to a designated FM bandwidth, and sit back and enjoy the show. The ONLY thing they do not do is ask for permission."

Wes Modes, 37, of Santa Cruz organizes the events in gorgeous spots in the woods and spreads word via e-mail. When arriving at the movies in his '64 pick-up, Modes arrives with such items as milk crates, surge protectors, extention cords, an amplifier and two 50-pound golf-cart batteries. All that is necessary is finding an outlet somewhere at the old warehouse or other venue.

However, Modes kept his eyes peeled for police during an August 2004 showing of Richard Linklater's 2001 movie "Waking Life", for the police had broken up two other showings in the previous few weeks. Modes and his friends enjoy the risk they are taking, for they miss the B-movie drive-in and find this much more enjoyable than sitting at home watching a movie alone.

"Now, high-quality DVD players, digital projectors and iPods have put the technology of drive-in movies into the hands of anyone with $1,500 to spare, giving rise to outdoor movie nights in locations from warehouse-packing districts to suburban cul-de-sacs. Instructions on converting iPods into radio transmitters are available at Web sites like engadget.com, some DVD players cost less than $100, and any blank wall will work as a screen.

"In cities like Tampa, Fla., and West Chester, Pa., as well as Santa Cruz, people are pirating a piece of that old Hollywood magic and challenging conventions on the role of public space in the process. 'The one I used last week was unbelievable,' (David) Krzysik (organizer of the annual Brainwash Movie Festival in Oakland) said of the latest liquid-crystal-display projector he set up in Oakland. 'And it's cheap, too. I think it cost $1,200, whereas in the old days it would have cost $30,000.'"

John Young, a technophile in West Chester, Pa., says "There's a community out there for some serious home theater geeks." He often cruises the Pennsylvania backroads on his motorcycle looking for potential movie sites. His website is www.tikaro.com/gdi .

Los Angeles filmmaker Lawrence Bridges uses guerrilla drive-ins as a way of showcasing the films, his digital design company, Red Car, has produced. In addition to Los Angeles, Red Car is showcasing films in Dallas, and currently searching for an empty lot somewhere in Brooklyn.

Modes who began by showing the movies in his backyard, "wants to change the way people use public space, and return the commons to an idealized past untainted by money."

"Part of why we're doing this is to reclaim public space and give people a way to use the nighttime that's not mediated by commerce," he said. "In our town, the parks close at sundown, you have to buy something at coffee shops. We wanted to give people a way to interact with each other outdoors without having to spend any money."

"Of course, he is also organizing guerrilla drive-ins for the thrill of being naughty. Not only are Modes and his friends trespassing when they set up their events, they are not exactly clearing their project with the companies that own the rights to the films they show, either."

Here is where the real question of copyright infringement enters the equation.

One must ask: Legally, is this allowed?

"Michael Bergman, a Los Angeles-based entertainment lawyer, said the fact that Modes does not charge admission does not diminish his basic violation of copyright law. 'The copyright proprietor for the film has the exclusive right to publicly perform the work,' he said in a telephone interview. 'Projecting a rented DVD onto the side of a building, where anybody who wants to can come and watch it, is certainly a violation of the copyright act.'"

Will Hollywood crackdown on such small movie festivals?

"Breena Camden, a spokeswoman for Fox Searchlight Pictures, which owns the rights to the Linklater film that Modes showed here in mid-July, refused to comment, if only because her company has never encountered this situation before. 'This is the first I've heard of it,' Camden admitted."

"So for now, Modes and his friends seem safe. Even the police do not really care; the Santa Cruz deputy police chief, Patty Sapone, said her officers had shut down the previous movie because Modes was using public property; as far as trespassing at the new site, it is not a matter for the police unless the property owner complains."

Of course, such comments are coming from the mouth of the deputy police chief of one of our nations most liberal towns.

"As the ocean breeze took the edge off the summer heat, Becca Anderson, 24, sat on a blanket and waited for the show to start. Anderson moved in May from Wisconsin to San Mateo, looking for work and a taste of the Bay Area's counterculture, she said, but found herself surrounded by computer geeks who talked endlessly about gaming."

"The San Francisco club scene was too fast for her, she said, so she and her friends logged onto www.squidlist.com, the local Web clearinghouse for subversive culture, and found out about Modes' labor of love. 'They show some awesome movies', Anderson said. 'You don't often see a drive-in with 'Waking Life.' Or 'Dr. Strangelove.''"

"Just before the main feature, Modes showed a few experimental short films as appetizers. The clear crowd favorite was "Round and Round," a 1939 General Motors educational cartoon about the laws of economics. After all, buying and selling was exactly what these people have come here to avoid."

In conclusion, is this any different than having a slumber party with 20 of your closest friends in 1985 and renting "The Breakfast Club" on VHS, or is it merely the technology and the longing for the past that have changed?