Napster's going down. While this court did not explicitly shut down Napster, they effectively did by clearing the way for a lower court to do so shortly. The future looks dim. American courts are loath to contradict each other when it comes to determinations of fact, and even on determinations of legal interpretations (though there is less reluctance in the latter case). So it is highly unlikely that any court will disagree with the assertion that Napster does not constitute Fair Use, nor is it covered by the Audio Home Recording Act. In short, the trading of copyrighted materials using Napster is now explicitly illegal by these courts' decisions. At least in the US.
While I'm dissatisfied with Napster as a solution for my music acquisition needs, I'm very unhappy to see this precedent set. As soon as the new injunction comes out, there will be a fresh blizzard of cease-and-desist letters to Audiogalaxy, Spinfrenzy, CuteMX, etc., except these new ones will refer to these decisions. In plain English, they'll say: "We took them to court and won. If you push us, you too will lose." The legal issues regarding Napster and Audiogalaxy are identical. A loss for them is a loss for us. Somehow I don't see Audiogalaxy moving to Russia or China, or some other country with notoriously lax copyright protection. This is the beginning of the end for all of us.
NY Times: Supreme Court to Intervene in Internet Copyright Dispute. Here's hoping the court does the right thing and strikes down the Sonny Bono Act of 1998, aka the "Protect Disney's Cash Cow" Act (Mickey Mouse), which retroactively extended copyrights by 20 years. Every day that goes by that I cannot create my own art featuring Mickey Mouse is a day that Disney, through the United States government, is stealing from me and restricting my rights. Granted, this isn't on the same level as, say, stealing my DVD player, or searching my house without a warrant, but it is a completely unjustifiable infringement on my First Amendment rights. In the Constitution, the power of Congress in this sphere is defined so:
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;
Clearly the existence of intellectual property was not intended by the framers; ideas cannot be owned. The above (to me) pretty strongly implies that their feeling was that granting such exclusive rights to ideas was an evil necessary to encourage the generation of new ideas. If you asked them, they would say to make the "limited time" as short as possible. Intellectual property isn't one of those inalienable rights an inventor is entitled to, but rather a license granted by Congress as a reward for their innovation. In fact, the whole point is to have inventors and authors to create worthy works that are accessible to all, for the betterment of society at large. The exclusive license is merely in furtherance of that goal, an incentive to create and also a mechanism to enable creation, so ordinary citizens can devote time and resources to invention without falling into poverty. Nowhere in the Constitution does it say that there is an inherent right to ownership of ideas. To rephrase Proudhon: Intellectual property is theft.
Incidentally, there's a direct quote by Thomas Jefferson supporting this:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
If the Court goes the right way on this, I might start to forget about the coup of 2000.
More on people missing the point on copyrights and patents... It's an incentive, right? So let's see how that works. Suppose you're a potential author/inventor. You are considering taking time off your job to write a novel, or tinker full time on that funny-looking scooter in your garage.
Now suppose this could go on in any of four hypothetical worlds. In the "information wants to be free" world, the minute you show your book or your toy to someone else, they can run out and sell your book without a dime to you, or manufacture an identical scooter. At this point, unless you're really invested, you're just going to give up.
Now suppose you have 5 years of exclusivity, in the "as short as possible" world. That might just be long enough for you to make the cash to justify your year off. So you'll go for it. But what about Giant PharmaCo? They want to make a new drug that will cost them about $1 billion to develop. They figure they can make about $400 million in revenue per year, of which $100 million is profit. If they can only go for five years, they make back only half of their original investment. Clearly that's a losing proposition.
So suppose the term is extended to 20 years, in what I call "a period long enough to sound right in my contrived example" world. Now you, the individual creator, are doing quite nicely. And Giant PharmaCo makes quite the tidy profit off their new drug, so that 20 years later, when it falls into the public domain, they're well recompensed for their investment.
Finally, there's the "intellectual property is just like any other property," wherein there's no expiration, or at least no effective expiration (a work created today has life of author + 70 years of copyright protection, which is easily a century in the general case, at which point I'll be long dead, so it benefits me not at all). Given the trajectory that most works follow, namely, the majority of their profit comes in the decade or two after initial publication, the extra 80 years of profit doesn't really affect anything. Furthermore, profit made 25 years from now is pretty unlikely to affect your decision to invent now. If your work does well, you'll have more than enough money from the 20 years. If your work does poorly, it's not going to make a difference whether you own copyright on it for a year or a century. Very few will fall between those two extremes. So as an incentive to me, the individual inventor, there's very little difference between a term of 20 years and a term of 100 years. And as it states in the Constitution (as quoted previously), this is "to promote ... progress." If it doesn't make a substantive difference to me as an inventor to extend my term 80 years, then it's not promoting progress, and so shouldn't be that way. Corporate interests might feel differently, but the whole point of copyright was to protect the weak from the strong by preventing the latter from stealing the ideas of the former.
I realize I'm mixing copyright and patents, but to an extent, they can be treated the same way in an example such as this.
The following is the text of a letter I intend to send to my House Representative and Senators concerning the Consumer Broadband and Digital Television Promotion Act, or the CBDTPA, introduced yesterday in the Senate by Senator Ernest "Fritz" Hollings, D-SC.
[edited several times because it was just too long]
I am a software developer in Austin, in the 10th Congressional district. I am writing to express my strong objections to SB 2048, the Consumer Broadband and Digital Television Promotion Act, or the CBDTPA. I am gravely concerned that this bill, if made law, would do great harm to the average American citizen. I believe the bill sacrifices the good of the American people for the good of a relatively small number of media corporations.
My most serious concern with this bill is the lack of protection it affords for the American citizen. While it contains language meant to protect individual consumers, I fear the protections as codified in this bill are neither strong enough nor explicit enough to guarantee my rights under the fair use doctrine, among other rights. Beyond simply stating that fair use should be protected, in order to make any sort of copyright control mechanism acceptable, Congress should pass a law affirming what the rights of consumers are. For example, as a result of Supreme Court ruling in 1986 in the Betamax case, the government cannot take away the right to "time shift" a recording of a television program. However, there is also nothing preventing the technology industry from taking that right away through technical means outside the scope of the law. Before any control mechanisms are implemented in technological devices, it is imperative that Congress guarantee the basic fair use rights of Americans.
By the provisions intended by supporters of the bill, all electronic devices would have mechanisms to verify that all content has been properly acquired. In effect, televisions, computers, compact disc players, and many other electronic devices will actively watching Americans as though they were criminals. These devices would implicitly assume that Americans are thieves and that theft can only be prevented by installing monitoring devices in every American home. This is contrary to American values. The device is not the crime, piracy is. In order to protect the interests of all parties, we must maintain the legality of electronic devices while prosecuting their misuse. Criminalize the deed, not the device. Appropriate laws already exist without compromising the rights of Americans. Furthermore, any digital rights management technology would require registration of individual users, an unprecedented invasion of privacy for entertainment.
We must also consider the impact to the nation's technology industry, widely recognized as one of the most important sectors of the United States economy. The entertainment industry grossed roughly on the order of $40 billion in 2001. By comparison, the combined software, electronics, computer hardware, and telecommunications industries are estimated to have grossed on the order of $500 billion last year, or over ten times the size of the entertainment industry. In spite of this tremendous disparity, we find the peculiar situation of the tail wagging the dog. This bill means considerable harm to the technology industry, as attested to the Senate by Leslie Vadasz, co-founder of Intel, one of the largest semiconductor manufacturers in the United States and the world. He testified as to the damage to the industry should the federal government mandate technological specifications to solve the problem of piracy. The American businessmen and women who have made this country's economy the strongest in the world will have to bear the cost of this technology, reducing the ability of American companies to compete both here and around the world.
Despite the claims of media conglomerates, it is not at all apparent that these measures are necessary. I have been using the Internet as a means for acquiring new music for several years, including using primitive precursors of the now infamous Napster. In that time, I have purchased nearly one hundred music albums as well as many DVDs. I would not have purchased many of the albums had they not been readily available through these illegal means. The reasons for my illegal acquisition of music were solely for evaluation of the music. In nearly every case, if, after sampling an album, I found it to my liking, I acquired it legitimately. While illegal, file sharing services satisfy a need in the market where the music industry has failed. Consumers do not want to steal music, but given the unrelenting blandness of standard music distribution methods, such as radio and television, we are forced to seek other avenues in order to satisfy our tastes. One attempt by the music industry to enter this market, known as Duet or PressPlay, has so far been a dismal failure due to a limited selection of music and draconian control mechanisms, not the cost. In addition, the laws currently in effect have been successfully used to prosecute pirates, including just recently when a counterfeit DVD operation in New York City was shut down.
One of the other arguments made in favor of this bill is that making rich media readily available for download is what is needed to create widespread customer demand for broadband technologies. However, with the existence of illegal content online, broadband nevertheless remains in the early stages of adoption. There is no reason to believe that legitimizing this process will accelerate its adoption. In addition, the federal government should not be influencing the market in this case; broadband Internet access is hardly of the same importance as electricity or a telephone. Any hurdles to broadband adoption are a result of telecommunications companies dragging their feet far more than a lack of demand.
Examining the history of the relationship between the entertainment and technology industries, we find in several instances the former expressed their concerns and fears over a technological advancement, be it the VCR or the audio cassette. In these cases, the fears of the entertainment industry were overblown. In fact, after embracing technologies they originally opposed, the movie studios and record labels managed to increase their revenues and profits, in spite of piracy. While no system is perfect, to some extent fraud is the cost of doing business. No mechanism that protects the rights of law-abiding citizens will be perfect in quashing fraud. The banking and credit card industries have managed to be profitable while still maintaining a fair degree of protection for the rights of consumers. The entertainment industry should be no different.
While I don't doubt that this type of measure would go a long way to stamp out piracy in the United States, it does so by intruding too greatly both on the consumer as well as business concerns. There is a solution to the piracy problem, but it cannot come out of treating Americans like common criminals or burdening the technology industry with further regulation. As such, I strongly urge you to oppose the CBDTPA and all similar measures that only benefit a privileged few to the disadvantage of both individuals and businesses. I would appreciate hearing your position on this issue. Thank you.
Ok, so I've been thinking about this a while. I want copyright to be shorter. I do like the idea, and I do see the need and want its protection. Then it occurred to me. I just don't have to use all of it. So. Let this serve as announcement: Everything that I copyright will fall into the public domain exactly 28 years after first publication. That was the maximum allowed by the initial copyright term granted by the United States Congress in the 18th century, and it is enough. Some obvious caveats, of course. This doesn't apply to work I do for someone else, because I don't/won't hold the copyrights; they get assigned to my employer as part of the standard contract. Plus I realize I haven't published much that anyone would want to appropriate, but I'm still young. Maybe someday I will. Right now I will commit myself, though. No matter what happens in Eldred v. Ashcroft, I will only take 28 years from the commons. No more. Possibly less. I urge you to do the same. No matter how small you think your contribution to the public domain is, commit yourself. All writings. All weblog posts. All photographs. All code. All correspondence (excepting private and personal). All graphics. All video. All musical compositions and recordings. And everything else that can be copyrighted that I haven't thought of. 28 years.
The following is the text of an email I sent to Lawrence Lessig yesterday:
Dr. Lessig,
I attended your discussion at SXSW here in Austin, but did not get a chance to suggest my idea for helping to reform copyright's greatest abuses. Basically it is compulsory licensing. When I buy a single copy of your work, I also buy a license to distribute a single copy of a derivative work, as long as I include your copy with it. So if I buy your CD, I can distribute a remix CD as long as I include your original CD with my remix, without having to seek further approval. For every one of my derivatives, I must buy and include one of your originals. We have the option of negotiating a lower price for the license to my derivative work, but you cannot charge more than what is charged at retail, and you cannot deny me the ability to build upon your work as long as I pay. I also want to emphasize that this should allow any retail purchase. If I get your CD legitimately from a used CD store for $5 instead of the $15 new, it still counts.
So what does this mean? If nobody wants to build on your work, you get exactly what you had before. If, however, it turns out that my derivative is at least 10% as popular as the original, all of a sudden you have the equivalent of a 10% increase in sales, without doing any extra work. Remixing is huge in the electronic music world, with many songs' remixes greatly surpassing the popularity of the original. If we could apply this to music (bedroom remixes), film ("The Phantom Edit" or the Utah video chain distributing "cleaned up" DVDs), short stories, poetry, or any other kind copyrighted media, the potential is vast. As a content producer, you have the advantage of other people testing out ideas. If there is potential in my derivative, you can offer me cheaper licensing terms to encourage higher sales, or to get a bigger chunk of the added revenue. If there is no added potential, there is no loss.
Another, more subtle benefit would come in the long term, when this is a more common way of working. If you expect that others will build upon your work, the onus is not nearly so great to provide a complete package. You don't have to provide pretty pictures in the liner notes, or a second disc of remixes, or get that Senegalese tribal drummer into the studio. You can put out a less-fully articulated expression because you don't have to be complete or authoritative. In that situation, your up-front investment can be considerably reduced.
One could even take this further and use creators of derivatives as a "farm team." In the electronic music world, a new, potentially hot talent can start out with remixes to prove their ability, and then move on to original works (or, given the low cost of home production, the reverse). The computer gaming world has been revolutionized by the success of the Counterstrike mod of Valve Software's Half-Life, a mod which was so popular that it was packaged in a retail box and sold on store shelves long after Half-Life itself had grown stale and irrelevant. The threshold for both publishers and creators is considerably reduced, because the latter can take baby steps into the field, while the former can audition candidates for hire with real portfolios and minimal investment. Perhaps the producers would even get into the habit of distributing the raw source material, such as individual, unmixed tracks, which would be even further lower the level of difficulty in producing a derived work. Like the GNU movement, this would blur the line between a producer and consumer.
Of course, I see several problems with this proposal, as I mentioned initially. If you can create derived works for a fee without other restrictions, there is less impetus to fix what is wrong with copyright in the US in the first place. I would argue that might not be the reality as this plays out. Once the big media publishers get into the habit of seeing their customers as potential co-producers instead of enemies, then their strident calls for copyright regulation would quiet. It would also open up potentially greater revenues for them while reducing their costs, taking the wind out of the financial argument for extended copyright.
The other problem that I see is with works that are subsidized or outright paid for with advertising. Since there is no retail price for those, derivative works under this system wouldn't be possible. It's also conceivable that big media would then embed advertising in some form into all works, just to make it impossible to create derived works. Given the revenue potential, I don't expect they'd be that short-sighted, but then, I used to work at Audiogalaxy and should know better.
The big picture here is that this system would separate money from creative control and eliminate much of the economic friction that exists in licensing today. This wouldn't eliminate that source of revenue, though, as you could always negotiate a cheaper license for a derivative work; in fact, it would often be in the best interest of the producer of the original to do so.
I feel the strongest part of this idea is that the cost for becoming a "remixer" is the exact same as the cost of being a consumer. Further, the copyright owner has no control over the derived work, but is still fully paid. If you have a flawed production of an essentially good idea, someone can realize it to its potential. Society at large benefits from the best expression of a particular idea. And the creativity of other producers is not stifled. I recognize that there are flaws with this idea, but if we waited until our ideas were perfect before revealing them to the world, they would never be revealed and they would never be perfect.
I especially like the phrase I coined to end the email. I feel so smrat.