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...

Political Coverage and the Public Domain

NPR had an interesting segment this morning about political speeches and the public domain.  When a politician gives a speech in public, it instantly become part of the public domain; available for everyone at the library of Congress.  But footage of them giving that speech is copyrighted ("fixed in a tangible medium"), and is the property of whoever shot it.  Typically these are TV news organizations, and they do not part w/ their footage easily or cheaply.  This confounds political documentarians not named Micheal Moore who typically make their films on a much lower budget than anything that comes from Hollywood.

The most interesting part was an interview w/ a representative from the Library of Congress.  He stated that citizens who have home footage are encouraged to send a copy in and enter it into the public domain for the rest of America to use.  So here's an easy, legal, opportunity for common citizens to do our little bit to further the Lessig dream of "Free Culture." 

Bootlegging - P2P Style

Bootlegging has been around for as long as I can remember. In fact, it has been around longer than I have. A website called Sharing The Groove is bringing bootlegging into the digital millenium. By using p2p software (Bittorrent) and providing a message board where users can search for particular bootlegs, the website has given fans access to a vast amount of rare, unreleased, live, and demo recordings. Grayson Brulte is the founder of Sharing The Groove and states the website has over 200,000 registered users. Users of the website simply register a screen name and navigate through a message forum type interface where they can search for music they are interested in. In addition, users can post "ISO" or "In Search Of" messages where they request particular bootlegs to be posted.

It goes without saying that sharing bootlegs is not legal. Dan Leroy in an article from the New York Times writes

For the moment, the Recording Industry Association of America, which sued Napster over copyright infringement, declined to comment on sites like Sharingthegroove and whether the group would initiate similar lawsuits. Sharing concert bootlegs is illegal, said the entertainment lawyer David Moser, the same as sharing studio recordings.

''As far as the law is concerned, there isn't any distinction,'' said Mr. Moser, an assistant professor at the Mike Curb College of Entertainment and Music Business at Nashville's Belmont University and the author of the book ''Music Copyright for the New Millennium.''

Many bands choose to ignore bootlegging because of the unspoken assumption that the tapes will be traded among fans, not sold for profit.

There appears to be mixed views from the artists themselves. Bob Weir of the Grateful Dead openly endorses the Sharing the Groove website. However, Bert Holman, manager for the Allman Brothers Band asked SharingTheGroove to remove some of the bands shows from their website. Their request was complied with. It is interesting to note that Holman stated the reason for the request was because the Allman Brothers Band were contemplating selling their own official "bootlegs" of their concerts.

One of the theories for why sites that share bootleg concerts are not shutdown by the RIAA is because record companies do not own copyrights in concert performances. It would be interesting to note that members of SharingTheGroove closely moderate what is posted to their site. Copyrighted commercial material is not allowed. Moreover, members monitor sites like eBay where bootleg sales may turn up.

Were we Outfoxed?

Robert Greenwald, the maker of the anti-Fox News documentary, Outfoxed, has announced that he is releasing much of his film to the public through a Creative Commons license. Greenwald is quoted in Wired News as saying, “I hope there will be a series of creative, interesting, and different ways that this material will be used by all kinds of different folks.” This sampling/remix-like process is common in the music industry but according to Wired this is the first time the raw materials of a major motion picture have been released to the public.

While Lawrence Lessig (in the above mentioned Wired piece) captures the essence of copyright purpose stating that, “A creator exercises his copyright according to his view about how best to spread his work”, it is questionable whether Robert Greenwald is really releasing Outfoxed to promote Creative Commons and encourage creative tinkering or whether he is desperate that his Michael Moore-esque take on a political news channel will escape the failure (box office receipt failure) that it has been.

The beauty of Creative Commons is that an author if he desires, may license his works in ways not restricted were it subject to typical Copyright licenses. However, I am not sure film industry proponents of Creative Commons should be so quick to embrace the release of Outfoxed as the shining light example of the success of their objectives. Outfoxed, the “the little brother to Fahrenheit 911” was funded by moveon.org and is too partisan in an arena that too this point has not experienced that level of partisanship.

Granting movie makers the freedom to allow the public to tinker with their works is a logical move and a freedom which they should have, but Outfoxed should not be the film that Creative Commons embraces for its movement. Perhaps I am the one who is placing a partisanship factor where it should not be, and that this should be seen as a success regardless of the nature of the “major” motion picture. But in this election year wrought with personal shots by both sides of the political spectrum, the American public is acutely in tune to ideological motivations and Outfoxed will create a partisan divide where there was none before and that in the end may very well endanger the success of Creative Commons in the motion picture medium. The last thing Creative Commons and the proponents of remixing in the film industry need to do is align themselves with such a politically motivated “creative” work.

Lawrence Lessig responded to the release of Outfoxed: “It’s a start…we’d love to see this grow broadly.” Growing broadly is precisely the problem Outfoxed imperils.