Copyright and Fair Use
The Society for cinema and Media Studies conference earlier this month gave the Consortium its first change to officially welcome a few new consulting researchers to our project. One of those scholars is Abigail Derecho, who is currently teaching at Columbia College Chicago and who will be moving to the University of California-Berkeley in the fall. Gail and I met through the Gender and Fan Studies/Culture discussion that happened throughout last summer and fall over on C3 Director Henry Jenkins' blog and on LiveJournal, after she made various comments referring to her work on soap operas in her round of the conversation.
She and I began to share thoughts and research possibilities surrounding our common interest in soaps, leading to our planned collaboration with another C3 Consulting Researcher, C. Lee Harrington, to co-edit an anthology on the current state of the U.S. soap opera industry, entitled Search for Soaps' Tomorrow. SCMS provided me my first chance to see Gail "in action," so to speak, presenting her work, and I was especially excited to hear her present something off the path of the work we've been doing together, dealing not with soap operas but rather copyright issues surrounding the development of remix culture in hip-hop music and how legal precedents set in the early 1990s impact discussions of reappropriation of media content and video mash-ups today.
Continue reading "SCMS: Gail Derecho and License to Remix" »
Around late November of last year, I stopped playing the popular Facebook application Scrabulous, because it was wrecking havoc on my productivity.
Back in January, I started up again, spurred on by Hasbro's crease-and-decist order and have since been nervously awaiting the outcome of the Hasbro versus Scrabulous legal faceoff. With Mattel having also joined the battle, every move might be my last (most recently played: Pledged, for 22 points). But it's telling that I decided to reintroduce the game into my still-overpacked schedule because of the need stake my claim while I still could: whether or not I plan to keep playing, I felt compelled to make known that I supported its right to exist.
According to a recent New York Times article, I'm not the only one who feels this way. Not only have multiple "Save Scrabulous" Facebook groups cropped up, some with several hundred thousand members, but the executive director of the National Scrabble Association, John D. Williams Jr., noted that "People believe it to be in the public domain . . . The idea that Scrabble belongs to a corporation is something that people don't or are unwilling to accept."
Continue reading ""Your Move on Scrabulous!": Hasbro's Legal Facebook Faceoff" »
One of the great pleasures of living in Cambridge is that we regularly have access to sneak previews. About a month ago, I got to see John Sayles' latest opus Honeydripper, and just last week Michel Gondry came to the MIT campus with Be Kind Rewind. Both push different boundaries and deliver an honest, dare I say "authentic," authorial gaze. (See recent C3 posts about authenticity here and here.)
Be Kind Rewind is an unpretentious movie. Its plot, as it's accurately described onIMDB is about Jerry (Jack Black), a junkyard worker who attempts to sabotage a power plant he suspects of causing his headaches. But he inadvertently causes his brain to become magnetized, leading to the unintentional destruction of all the movies in the family store of his friend (played by Mos Def).
Continue reading "Be Kind Rewind: Between Participation and Control" »
Earlier this week, I cross-posted the first part of an interview with media scholar Pat Aufderheide of the Center for Social Media and Law Professor Peter Jaszi, both from American University. Now that the second half of the interview is available on my blog as well, I also wanted to share it with the Consortium's blog readers.
Your team has had good luck developing a set of guidelines to provide more clarity to documentary producers about when their deployment of borrowed materials is protected under current legal understandings. Can you describe some of the impact that this report has had? What lessons might we take from those experiences as we look at the challenges confronting amateur media makers?
PA: Documentary filmmakers found their hands tied creatively, without access to fair use. So in November 2005 they developed a consensus statement, Documentary Filmmakers' Statement of Best Practices in Fair Use, through their national organizations and with our coordination, which describes four typical situations that come up for them, and what the principles of fair use are, along with the limitations on those principles. For instance, the Statement shows that in critiquing a particular piece of media, you can use that media to illustrate your point. The limitation is that you can't use more of it than makes your point. Common sense and good manners require that you let people know what it is (provide credit).
Continue reading "Recut, Reframe, Recycle: An Interview with Pat Aufderheide and Peter Jassi, Part II" »
I posted this entry on my blog yesterday from the west coast, having flown out to California to participate in 24/7 A DYI Video Summit being hosted by the University of Southern California. The event brings together videomakers from a range of different communities -- everything from fan video producers to activists who use Youtube to get their messages out to the world. I am thrilled to be participating on a plenary panel on the future of DYI Video, featuring Yochai Benkler, John Seely Brown, Joi Ito, and Lawrence Lessig, hosted by Howard Rheingold.
As I was getting ready to head out to the conference, I conducted an interview with media scholar Pat Aufderheide (of the Center for Social Media) and Law Professor Peter Jaszi, both from American University, and I thought I would share it with the Consortium's readers as well.
I've long been interested in the work Pat and Peter have been doing promoting fair use in relation to a range of different communities of practice -- including documentary filmmakers, media literacy instructors, and producers of online video content. We featured some of the work they were doing through the Media in Transition conference at MIT last year.
Continue reading "Recut, Reframe, Recycle: An Interview with Pat Aufderheide and Peter Jassi, Part I" »
The music industry has a flare for the dramatic. As such, last year has been repeatedly portrayed as the year that the music industry broke and October as the month that sealed the deal. That was when RIAA won its first major file sharing lawsuit, reinforcing their perception of consumers as potential criminals.
More importantly, however, it was the month that Radiohead announced its pay-what-you-want scheme; Nine Inch Nails declared itself 'a totally free agent, free of any recording contact with any label'; and Madonna terminated her 25-year relationship with Warner Music Group and signed a 360 deal with Live Nation.
Continue reading "DRM Is Dead! (Or Is It?)" »
The Society for Cinema and Media Studies has just posted a Statement of Best Practices in Fair Use in Teaching for Film & Media Educators. This statement can be accessed here.
C3 Consulting Researcher Jason Mittell, a member of the SCMS sub-committee on fair use responsible for this document, was one of its key authors.
This document establishes clear guidelines, including limitations and clarifications, for educators covering the areas of classroom screenings, broadcast recordings, derivative works, online distance education, and public domain. Of particular interest is Appendix A, which displays a chart of "Responsibilities for Displaying or Performing Film and Media in On-Line Instruction" covering the institution, the faculty, and information technology units.
Continue reading ""Best Practices in Fair Use" from The Society for Cinema and Media Studies" »
Yesterday, I wrote about all the new stories arising about online video and copyright: Google's YouTube announcement, the media company pact, the shutdown of TV Links, and NBC closing out its YouTube channel. I wanted to follow that piece up with the predictions I alluded to last night, as well as some recommendations:
Some analysis...
1. The industry may actually be ready to work together - for now.
No, pacts to protect and defend copyright are not new, but we all saw what happened to the recording industry. It's very difficult to quantify revenue that one would have had, but that's not really stopping anyone. Overall, I expect more lawsuits filed by multiple plaintiffs for exorbitant damages, just to make a point and to tell television advertisers that the networks aren't allowing CPMs to increase without trying to get their audience back. Expect the creation of an industry-sanctioned YouTube-style site. How customers will react to leaving the sites they know to go to one they don't for content is yet to be seen, but I would not be overly alarmed, particularly if Hulu gets a reasonably large amount of traffic, if other networks or content producers jump on board. This leads me to my second prediction.
Continue reading "Copyright Crackdown: Coalitions, Aggregation, and Audiences (2 of 2)" »
Viacom suing Google for a billion dollars may be old news, but the ten days have marked a sudden and a little bit startling push of the big media companies and government to defend copyright of video on the web. These events, although not totally unexpected, may have long-term implications for audiences in how we access television content online, and signal a need for some changes in how media companies relate to their audiences.
What happened? Replaying the last 10 days
There were four important developments this week: Google's YouTube announcement, the media company pact, the shutdown of TV Links, and NBC closing out its YouTube channel.
Continue reading "Copyright Crackdown: Coalitions, Aggregation, and Audiences (1 of 2)" »
As those who are either members of the Consortium or who follow C3 regularly may know, we are in the process of doing some in-depth research into YouTube and the types of content that is most prevalent on the video sharing site. With that in mind, we have been paying more attention than ever to what is happening in this space. With the recent launch of the tools designed to cut out the improper use of copyrighted material, or at least offer copyright holders the opportunity to profit from the content's appearance on YouTube by offering ads, I fear that both fair use and the benefits to producers are getting lost in the process.
Let me explain what I mean. It has to do with what I feel is a very legitimate and fundamentally important aspect of YouTube: quoting. There is a substantial amount of copyrighted material on YouTube--of that, we can all surely agree. However, there is something fundamentally different about a segment from a show, a funny bit or a suspenseful bit, that is quoted in particular, versus the many people who post "last night's episode of X, Part I of V." One is trying to find the way around distribution; the other is about sharing a snippet of content that points back to the larger work, pointing to the proselytizing activities that are vital to a fan community and benefit both the fan sharing the link, those who click on the link, and the media company which the quote points back to.
Continue reading "Pragmatically Challenged: Where Do Quotes Fit in the YouTube Copyright Solution?" »
Last week, the mainstream music industry was (yet again) turned upside-down. British rock band Radiohead announced that it had finished its latest album IN RAINBOWS. Their website says:
RADIOHEAD HAVE MADE A RECORD
SO FAR, IT'S ONLY AVAILABLE FROM THIS WEBSITE
YOU CAN PRE-ORDER IN THESE FORMATS:
DISCBOX OR DOWNLOAD
So why is this such big news? Well, the first clue is in the band's low-key notice: "so far, it's only available from this website." In Rainbows is Radiohead's first album since they concluded their contract with EMI, and, so far, they've decided to release it on their own.
Continue reading "The Radiohead Revolution?" »
An event that got a lot of people talking over the past few weeks back in Kentucky, and elsewhere, have--for some people--brought up the somewhat unsavory side of online video, user-generated content, and issues of privacy and context. The weatherman and morning television personality for a local news station in Kentucky, WBKO-13, had a short video clip released of him, off-the-air, waiting for a segment on breast milk donors.
Chris Allen, the news personality, was standing at a screen, juxtaposed against a quite large illustration of the female figure, with the figure's breast next to him. Allen, in an attempt at humor toward his fellow colleagues, started feigning that he was suckling at the breast of the figure, and then reached out to do a grab, complete with "honk, honk" noises.
Continue reading "Kentucky Weatherman Controversy Raises Issues About Privacy, Copyright, Context, and Information Traces" »
The past few weeks, I've been following the controversy around Rapleaf, a company that got some attention in early 2006 as an expanded, more powerful version of Ebay's feedback system, which would allow people to build and look up the "reputations" of other by entering an email address. Profiles on Rapleaf can include everything from your age to your political affiliations to what books you want to buy, as well as testimonials from people who have done business with you (though it's unclear how Rapleaf verifies that these testimonials are legitimate). In short, Rapleaf billed itself as a way to find out what you were getting into before entering a business transaction.
That proposition quickly became rather ironic once controversy surrounding the company started picking up speed in late August 2007, when some bloggers received email notifications from Rapleaf informing them that they had been searched.
While some of the backlash was directed at the "spam" factor of receiving annoying email invitations to Rapleaf, the most vocal outrage was over the potential invasion of privacy.
Continue reading "Privacy and Information Ownership: The Rapleaf Controversy" »
A little bit of interesting wrap-up on the YouTube front as well, based on some unfolding stories throughout the month. I was interested in the continuing fallout from the Viacom/Google lawsuit based around YouTube, as I've blogged about several times.
When I first wrote about the topic, I was concerned with the ways in which the community of YouTube was getting lost in the corporate structure for the business model as the lawsuit moved on, with no distinguishing between YouTube the group of users and YouTube the business. I wrote, "What's missing is the fact that YouTube is not the entity posting this content--it's the fans, fans who see quoting from these shows and sharing their favorite moments with each other as part of expressing their love for these programs." See more here, here, and here.
Continue reading "YouTube Creates New Ad Models as Viacom Woes Move Forward" »
Another piece that I wanted to make it a point to respond to in my flurry of blog updates today comes from Steven Lipscomb. For those of you not familiar with Lipscomb, he is the founder, CEO, and Director of the World Poker Tour, whose content my friend John Morris is addicted to, including buying it on PPV.
Lipscomb wrote a recent commentary on the TelevisionWeek blog, pointing out how China demonstrates the future of capitalism because it enforces the rules of the market better than the United States.
The paragraph that caught my eye in particular? "Free market advocates should agree with this proposition. Either we abandon things like copyright ownership entirely... or we enforce it. Today we have a system that rewards the cheaters and discourages ethical behavior. That simply cannot be the capitalist system we desire."
Continue reading "Free Market and Copyright" »
"New Site" is not new. The joint, billion-dollar, working-titled venture between NBC Universal and News Corp. was announced almost six months ago. Late last week, however, The New York Times reported that Providence Equity Partners, a "media investment firm," bought a 10% stake in "new site" for $100 million.
In the next four posts, I will first do a quick analysis of NBC's current distribution strategy, then look at each of the two problems facing the networks, and finally examine why NBC has partnered with FOX to ultimately address the question: "To Aggregate or not to aggregate?"
So, why is NBC, which already has a popular network website partnering with FOX, which doesn't, to spend $1 billion (now effectively $900m) on "new site," and why is Providence contributing $100 million dollars to the effort?
Continue reading "New Site: To Aggregate or Not to Aggregate? (1 of 4)" »
In addition to all that we've been covering here on the Convergence Culture Consortium blog, there have been some interesting pieces written recently on the blogs of some of our consulting researchers as well that I'd like to point the way toward.
First is a recent post from C3 Consulting Researcher Rob Kozinets, over at Brandthroposophy, his blog on "marketing, media, and technoculture." In a post entitled What Does DRM Really Stand For? Whack-a-Mole!, Kozinets thinks back to a conversation with an executive from the music industry in a class he taught back in 1999, talking about early MP3 players, and his own conversations with students over the years about file sharing and digital rights management, for both music and movies. He concludes that "entertainment companies haven't even come close to getting it. When they do, they'll learn to work with the trends and not against them. That's going to be an interesting day."
Continue reading "C3 Team: DRM, Hypermasculine Soaps, and Gender and Fan Studies" »
Tomorrow, Eleanor Baird will be providing an in-depth look at NBC's current repositioning of its online content, through its launch of the New Site venture in particular. I wanted to preface that earlier today by pointing toward what we've written about previously regarding New Site, as well as pointing out another new venture launched by NBC that has been getting some press lately.
That new venture is an online channel made up entirely of advertising, where the ads are not just something to support the content, but content themselves. Our partners over at Turner Broadcasting were trendsetters in this regard, with their channel focuses particularly on humorous commercials called Very Funny Ads.
Continue reading "NBC's Didja To Launch Alongside the New Site" »
Is copyright infringement enforcement across the board the best strategy for content producers? Or, would enabling some illegal sharing actually provide a benefit? The developments in the last week or two in the various lawsuits are indicating to me that a desire to stamp out and punish piracy is trumping the potential benefits letting users push content quickly and unfettered through social networks and other "web 2.0" sites, the most compelling benefit of these sites and a key means for fans to add value to media properties. The desire to adhere to traditional revenue models, boilerplate rights agreements and, perhaps most of all, an inability to qualify the value added by YouTube users, may ultimately be more of a hindrance than a help to producers in promoting their product.
Startling revelation? Perhaps not, but it's worth considering in the context of this week's developments.
Continue reading "Pirates vs. Ninjas: Valuing Fans and YouTube Users" »
I wanted to spend a few minutes this afternoon going through some recent news that provides updates for issues I have written about continually here on the blog. These include the Second Life gambling issues, the Viacom/YouTube case, and the indecency and Fairness Doctrine bills currently making their way through Congress.
1.) Gambling in Second Life. Word has officially been released that Second Life has shut down gambling inside the virtual world. I found out about it from Raph Koster's blog, as the new policy was released through the Second Life blog. The blog's Robin Linden writes that, even though there is no official gambling service in Second Life, they are still required to operate under governmental laws that regulate online gambling.
Users on Raph's blog debate issues such as whether poker is a game of chance, whether Second Life is better off or not with the gambling gone, and what this might mean for SL longterm, especially if the door for government intrusion stays open.
Continue reading "Followups on Coverage of Gambling, Viacom, Decency, and Fairness" »
Tuesday afternoon, and it's time to catch up on some relevant issues here on the C3 blog. One thing that has C3 and its consulting researchers talking is all the discussion flowing out the Harry Potter book release and concerns about spoilers related to it.
The release of Harry Potter and the Deathly Hallows has gotten a lot of people up in a stir. There are all the people who crowded Harvard Square on Friday night, or sites all across the country, although that created a fervor I've encountered before back in Kentucky and that echoed the recent "happening" that was the iPhone release. This is all about event-based marketing and the importance of the release in an experience economy.
But people online are talking almost as much about the unofficial releases as they are about the official ones, including the New York Times review that some people felt provided too much information, as well as online leaks of the book before the official midnight book release.
Continue reading "C3 Team Continues Analysis of Harry Potter Spoiler Controversy" »
C3 Director Joshua Green clued me in to a fascinating conversation taking place over on Bruce Schneier's blog regarding the leak of the final Harry Potter book online, with digital photographs of each page.
The debate is going in both directions. Schneier's take is that this is no big deal and that it does not really equal much of a profit loss. This perspective is that, since the people obsessed with finding a copy just to read it online a few days before it comes out in print will likely buy a copy anyway, and anyone particularly adamant with finding a free copy would have either not read it at all otherwise or borrowed a copy from someone else.
But, of course, this is also about scheduling and real-time deployment of content. The same question gets raised for television as we move more toward a non-linear method of television watching, with DVRs and television shows on DVD. As I wrote about last October, television is no longer the consensus narrative it once was because even if people watch the same series, they may be on a different season.
Continue reading "Spoilers and Special Release Events: The Case of Harry Potter" »
Joshua Green and I were sitting in his office yesterday, talking about copyright issues and how they relate to our own upcoming thoughts about a new environment of spreadable media, when the conversation shifted to fair use issues surrounding these debates.
Joshua's contention was that fair use issues are an implicit part of any facet of conversation about mash-ups, viral marketing, proselytizing, fan communities, or even convergence culture in general, and that, while talking about fair use is not necessarily something we will extensively focus on in our research, it is a part of many of the arguments we are making.
I concur that fair use discussions are quite important when thinking about issues of respect, and the prohibitionist/collaborationist modes of thinking Henry Jenkins writes about. Back in December, we featured a series of conversations about fair use issues in relation to C3 (see the posts from Jason Mittell, Ted Hovet, and Joel Greenberg), and I have been thinking about these issues recently in relation to my own writing about quoting, as opposed to piracy, when it comes to online video.
Continue reading "C3 Writing on Copyright and Fair Use" »
One message has been emphasized throughout the bulk of our work here at the Convergence Culture Consortium, and throughout some of the writing by our director, Henry Jenkins, over the past few years, that the traditional model of prohibition in the media industries is being eroded by, and in our view should give way to, a more collaborative view of copyright ownership.
This takes into account a conversation that has been very important to C3 researchers, that of fair use. In his column this morning in The Washington Post, Lawrence Lessig writes that "the remixer becomes the sharecropper of the digital age." He admits it is an over-the-top metaphor but acknowledges that it applies an old way of thinking to new technologies and new consumer practices.
He doesn't mince words, writing, "Lawyers never face an opening weekend. Like law professors, their advice lives largely protected from the market. They justify what they do in terms of "right and wrong," while everyone else has to justify their work in terms of profit. They move slowly, and deliberately. If you listen carefully, sometimes you can even hear them breathe."
Continue reading "The Sharecroppers of the Digital Age: Remixing and Fair Use" »
C3 provides a great opportunity to develop dialogue between media scholars and media professionals, something that has thrived in face-to-face meetings at MIT and elsewhere. While this blog seems not to have generated much dialogue and interaction across this divide (at least that I've seen), I offer the following commentary (both here and cross-posted on the newsletter) to provoke discussion, as it's a topic that needs input from multiple sides, and thus I encourage feedback and commentary to flow from these thoughts.
If there is one issue where I feel the perspectives of academic researchers and educators greatly diverge with the interests and policies of the media industries (at least as publicly stated), it is copyright. The media industries have been aggressively framing their copyrights as owned property, demanding control over all uses and successfully lobbying for legislation to protect ownership rights over all others. Media scholars are typically both copyright holders and active users of copywritten materials, so we can (ideally) see the perspectives of both creators and users - I certainly want to protect some rights to my writings, ensuring proper credit and (modest) compensation for using my work. But I am a dependent practitioner of fair use, the right to use copywritten material without permission for certain purposes such as criticism, parody, and education. Without fair use, I could not quote a book in my own research, show a clip from a television show in class, or assign students to make parodies of movie trailers, all practices that I see as integral parts of my role as a media scholar.
Traditionally, courts have protected such fair use rights over industry objections, but Congress managed to legislate around these rights in 1998 with the DMCA - this act mandated that users could not legally circumvent copy protections (like the DRM system on all commercial DVDs), even if the purpose was protected by fair use. As the film and television industries have switched to DVD as their only format, consumers were denied our fair use rights to make clips for educational use, backup discs in a personal collection, and create parody videos, escalating the hostility between media users and owners. As an educator, this restriction effectively says I can only teach material following the limits dictated by DVD technology. Thankfully, the U.S. Copyright Office last week issued a ruling (which I blogged about) allowing film & media faculty to override DVD protections to make in-class clips - a great allowance, but still one much more limited than fair use.
Continue reading "Seeking Common Ground Between Media Educators & Industry on Fair Use" »
CC activist, IP lawyer and Internet scholar Larry Lessig will make an in-game appearance on Second Life next week. He has had a customized avatar kitted out for him and there will be virtual books for him to sign.
Date: Wednesday, January 18, 2006
Time: 5:30PM - 7:30PM Pacific Standard/Second Life Time
Place: Borrowdale/41/56 (the Pooley Auditorium)
http://secondlife.blogs.com/nwn/2006/01/lawrence_lessig.html...for cute avatar pix and more details.
(Via Atrios)
The New York Times reports that European lawmakers are proposing legislation that would criminalize patent violation and impose prison time on patent violators.
Tim Frain, director of intellectual property at Nokia, called the inclusion of patents within the scope of a European law "ludicrous." Mr. Frain, who is based outside London, advises managers at Nokia on the risks of infringing existing patents when they develop new functions for mobile phones.
Mr. Frain indicated that patent holders wanted protection, but not penalties of imprisonment as they test the boundaries of other patents.
"It's never black and white," he said of patents. "Sometimes third-party patents are so weak that I advise managers to go ahead and innovate because after making a risk analysis we feel we can safely challenge the existing patent."
He added, "But with this law, even if I'm certain the existing patent is no good, the manager involved would be criminally liable."
What he said. This move would absolutely have a chilling effect on innovation, especially given how poorly vetted most technological or conceptual/business practice patents are. Mandating prison time for accidentally trampling on a pre-existing patent (which may well be flawed) is an absolutely terrible idea.
The Free Expression Policy Project of the Brennan Center of Justice (at NYU's law school) has just released a report titled: "Will Fair Use Survive? Free Expression in the Age of Copyright Control".
To get kind of technical, as C.E. Petit has noted:
Keep in mind that fair use is not a privilege. It is instead an affirmative defense to an accusation of infringement. (Unfortunately, neither the statute nor the courts are very consistent in treating it as such.)
That said, the (quite reasonable) concern expressed in the study is that the culture surrounding copyright and trademark enforcement is having chilling effects on the exercise of the right to free speech. Those interested in the legal issues surrounding fan-created content and intellectual property may find it worth a look.
C.E. Petit, in reference to a dispute in which the University of Alabama sued and blackballed a fan and booster of the school's football team over trademark infringement in his (very popular) paintings, writes:
Don't get the idea that I think this is "poor [alma mater]-- the law made them act like a bad guy" post. While I do think that the "defend it or lose it" aspect of trademark law is often a bit silly-- strike that; almost always a bit silly, and often counterproductive-- [alma mater] still blew it with its particular approach. A more-inventive approach might have involved hiring Moore as an adjunct professor of art with a specific exclusion of copyright in his contract, and paying him a dollar for teaching a seminar or studio class each year. Then there is no "market value" placed on the license that could muck up other actions. Too, the value of the museum's collection has no doubt been enhanced by the painting's increased value since acquisition; why couldn't the university consider that factor in tailoring a remedy? And so on.
Then he gets to the really interesting bit:
The ultimate problem is that too many lawyers-- and, oddly enough, an even higher percentage in art/entertainment/publishing law than I have encountered outside those areas-- are not very creative in resolving disputes. They push either a "boilerplate contract" or "hardball litigation." That isn't representing the best interests of the clients. It certainly isn't representing the best interests of the public. In that sense, I think art, in the broadest possible sense of the term, is "special"-- if only because of the public's First Amendment interests.
This is particularly true when dealing with fans and fan cultures, as taking a hardball approach with people who support and evangelize for your product and company (or school, in this case) is often totally counterproductive.
(Read the whole thing here.)
So Shawn Fanning, the guy who created Napster, has come up with a new program called Snocap that aims to prevent peer-to-peer piracy of music files:
The heart of Snocap is its sophisticated registry, which will index electronically all the files on the file-sharing networks. "Rights holders," which are what he calls musicians and their labels, will use the system to find those songs on which they hold copyrights and claim them electronically. Then they will enter into the registry the terms on which those files can be traded. It could be just like iTunes - pay 99 cents, and you own it - or it could be trickier: listen to it five times free, then buy it if you like it. Or it could be beneficent: listen to it free forever and (hopefully) buy tickets to the artist's next concert. Of course, the rights holders could also play tough: this is not for sale or for trading, and you can't have it.
It's an interesting idea, although since only two P2P companies (Grokster & Mashboxx) have signed on so far, it's unclear whether Snocap will make a big splash or sink without a trace. Also, people who stick with the old version of Grokster will be able to continue pirating music without impediment.
Personally, I think the "listen five times free, then buy it if you like it" model sounds the most sensible, though as usual with anti-piracy schemes, it'll be interesting to see how resilient the DRM on the limited-use files proves to be.
C.E. Petit, a prominent IP lawyer who's represented Harlan Ellison in a number of piracy cases, talks sense over at Scrivener's Error:
The underlying difficulty is that DRM is inherently an inept solution to the basic problem, no matter how elegantly implemented; the problem extends far beyond limitations on (or expansion of) fair use. Instead, this is a matter of economics and price points.
This is a point that comes up again and again in studies of file sharing; people don't want to pay a premium for a CD with only one or two tracks they'll actually listen to. In addition, there's an issue of goodwill involved; when consumers consistently find themselves buying $14-$18 albums for one or two radio hits, it's not unreasonable for them to feel like they're being cheated.
Mr. Petit continues:
This points out the economic model for preventing (or combatting) piracy: The perceived quality and availability of the genuine article must substantially exceed the premium over the counterfeit [...] All of this implies that instead of DRM, the media giants need to take a close look at their pricing structures, accounting, release timing, and value added to physical products.
In other words, if you can give people positive incentives (worthwhile extras, the sense that they're not being ripped off) to buy your product instead of pirate it, they'll do so. Funny how that works.
Go read the whole thing.
After taking a beating in the court of public opinion for releasing music CDs which install DRM software that leaves computers vulnerable to viruses (which I blogged about in more detail here), Sony has not only halted production of CDs containing the program, but has bowed to consumer pressure and issued a recall.
How long will it take for companies to figure out that copy protection doesn't work? The problem with DRM technology is that if it's non-invasive, it can and will be cracked or circumvented-- and if it is invasive, you run into problems like Sony did, with people using it to cheat in World of Warcraft (on the one hand) and hackers using it to make viruses and malware impossible to detect. No matter how clever you get, you're going to have some piracy-- hell, you could tape songs off the radio long before Napster showed up.
To continue my 5 stages of grief metaphor from an earlier post, the RIAA and the music industry have moved past denial (their pre-Napster apathy towards mix tapes and expensive CD burners) straight into anger, and have stayed there for most of the last decade. Whether alienating their audience with DRM counts as anger or bargaining is debatable, but until people begin to come to terms with the new media landscape spawned by P2P, they're going to keep making the same mistakes over and over again.
(Hat tip to Lost Remote for news of the recall.)
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