[dvd-discuss] Law and the 'Net Day

[Seth Johnson <seth.johnson(at)realmeasures.dyndns.org>]

(Forwarded from New York Fair Use list,
fairuse@mrbrklyn.com.  Longish post; it's a blog of a big
conference.  You can find out a lot about where Lessig is
coming from these days here.  Some stuff on the end-to-end
principle, actually it covers a whole lot.  Latest day is
first here, same as the actual blog page.  -- Seth)

-------- Original Message --------
Date: Thu, 4 Jul 2002 14:59:13 -0400
From: Ruben I Safir <ruben@mrbrklyn.com>


COPYFIGHT: The politics of IP

By Donna Wentworth

Blogging this week, in relative real time, from ILAW
Posted Thursday, July 4, 2002

Larry continues [I've missed a bit; see Dan Gillmor]:

Daniel Summers; asked whether they'd ever allow cable to be transmitted to computers: No, that would be "blood sucked from our veins."

The Cable-net. Policy-based routers. CNN comes quickly. Other things, more slowly. Twist dials on the router, according to uses they want to encourage.

This affects the policy choice of end-to-end. Shift to innovation as the network allows to content delivery as the network allows.

This could mean the end of end-to-end.

One of these Internet broadband providers was keen to provide telephony; the telephone fought it, it would suck their blood dry. [The lecture morphs to Q & A]

Drew Clark: Why is it the case in your view that consumers would prefer the end-to-end rather than the alternative?

Larry: If consumers were enlightened, they'd prefer end-to-end. But how do you discover where the stoppage is when a site doesn't come quickly?

I am happy that the three journalists here will be getting people to think about these things. But we need more.

The last time the government did right in this kind of siutation was the MS case. The government agreed that MS could crush FUTURE innovation.

[...]

Chris Kelly [former CPO of Excite @ Home]: The routers have been modifed according to users. We weren't always friendly with cable companies.

Larry: Were there members of the board who weren't cable-invvolved?

Chris: Venture capitalists.

[...]

Alas, must stop here. I'm off, folks. But I'll be back, rested and ready, tomorrow--and I hope you join me.

(permalink)         . . . . . .

        Larry Lessig steps to the front; it's time to discuss access:

        Paul Baran invented a technology with at DOD: packet switching. The defense department wanted to adopt this technology. ATT said this won't work. Even if it does, we can help you develop a competitor to ourselves.

        The Internet was hence delayed for 6 years.

        Here's the general argument I've been making throughout the week.

        Creativity is built on the past. And then the past tries to squash the new creativity.

        The end-to-end argument. The Internet by the nature of its architecture allows/enables creativity. Complexity/intelligence is at the end; the middle is simple.

        The effect is the ability to create doesn't depend on asking permission. You don't need ATT's permission; the test for whether a use will be "allowed" is whether people want it. The network is nondiscriminating in the core.

        This architecture has consequences. One is that the number of innovators is limited only be the number who are connecting to the network.

        [...]

        Who remember "Gopher"? But along comes the Internet. And gopher is wiped out. Gopher couldn't protect itself. Users decided. This is a feature of innovation.

        Under ATT model, innovation is at behest of ATT.

        Under end-to-end, innovation is whatever people want.

        Important consequence on what was produced. Let's list these innovations. Kahn/Cerf, WWW--Cern/Swiss, ICQ/Isreali. What's the character of these innovators? They're kids, and they're not Americans.

        This isn't a coincidence. All they needed was a connection. A feature to be remembered about the Net is that the people who innovated were OUTSIDERS. This is beneficial.

        The Internet: content, logical, physical. The three-layered communication system. Ramesh was discussiing the logical layer. These layers interconnect.

        The Internet is a consequence of what happened at the logical layer. That layer of the network was "free." The content layer was a mix of free and controlled. At the physical layer--it was initially a telephone network.

        In 1984 a significant event happens: the breakup of ATT. The world had become suspicious of this monopoly. The telephone network is denied power to dictate which innovations will arise.

        As a result the telephone network must be neutral. That left everyone free to have computers talk to computers through the lines. In other countries, this was banned. In the US, though, we embraced the value of end-to-end.

        Posting this; more to come.

        (permalink)         . . . . . .

        Happy holiday, all!

        The Internet connections are spotty here at ILAW today. It's the fourth day of my experiment with real-time blogging; feels like I've been running a marathon with my fingers.

        This morning: a tech demo by Ramesh Johari. This session got universal raves at last year's ILAW program. Later on: Yochai Benkler & Lessig on access, then Fisher on tricky IP issues--business methods patents, etc. After that, a session on the Internet and developing countries by Sarah Guerrero of Open Economies and Andrew McLaughlin, best known for his highly visible role in ICANN.

        I'll be out "on holiday" from about 12:00 p.m. on; I recommend that you check out Dan Gillmor's incredibly good running notes. For lengthy reflection on the issues, see Drew Clark's articles and notes. And check out Frank Field's Furdlog for his perspective on what's happening, plus a typically helpful collection of news from outside these four walls.

        (permalink)         . . . . . .


        Posted Wednesday, July 3, 2002

        JZ begins a discussion of "harmful speech"; Ben is 'scribing' the session:

        Jonathan: The IETF decides on what to do through collective humming. I propose we run this session like an IETF meeting. If you find what's happening interesting, or agree with a conjecture, hum [crowd hums, laughs].

        The question: How do we deal with pornography on the Net? The first real problem is defining what the problem with porn is. Is there someone who'd like to tell us what the problem is?

        Participant: Children/others see porn when they're not looking for it.

        Jonathan: Okay. So this is akin to the spam problem. But is the problem unbidden porn or is it that kids who want porn are getting it?

        Participant: Harm to society in general.

        JZ: Any other problem?

        Drew Clark: The "mainstreaming" of porn.

        JZ: Now you can get it without the plain brown wrapper. Anyone else?

        Participant: Facilitates other kinds of illegal activity.

        Participant: What is and isn't porn differs from country to country.

        JZ: Before the Net, there was the normative pressure that restricted access to porn. Basically, you didn't want the guy behind the counter to decide you're a loser. But what now? What are strategies to counter kids' access to Internet porn?

        Yochi Dreazen of the WSJ: Liability for sites that host porn.

        JZ: So: a private right of action, targeting the site. Under what law? This is Congress's first crack at it: the Communications Decency Act (CDA). Congress stuck in text that basically says that if you use a telecommunications device to transmit obscene material to children, you shall be fined under title 18 and imprisoned for two years.

        But what's obscene? It doesn't tell us.

        [...]

        We have the Miller obscenity test: three prongs. If it's obscene, it's not covered by the First Amendment at all.

        It's gotta be pretty bad to qualify as obscene. Obscene material is proscribed in this way. Prong A: it appeals to the prurient interest, while Prong B is: it's offensive. Basically, it's "It excites me; and I hate it." [Big laugh.]

        Obscene in the US: we've figured out what it is. But what is "indecent"?

        That stuff that is not obscene (you can't keep it away from adults), but you should keep it away from kids.

        Drew Clark: Is this a question of what's indecent, or "harmful to minors"?

        JZ: Indecent. "Harmful to minors" is the second CDA [COPA]. Who is your plaintiff to fight this? A breast cancer site, showing the female breast, otherwise considered "indecent."

        This statute will bring in questions of what's indecent, and also how to tell how old the viewer is.

        These are the main complaints against CDA I.

        Drew Clark: What about ISPs being concerned about liability?

        Participant: And what about Web caches? You're "hosting" porn, then, aren't you? That's not a fair charge.

        JZ: This is the ad disastrum argument [laugh]: my porn site goes out of business if you do this.

        So, to move ahead with the story: the Supreme Court struck the CDA down.

        Alternatives to CDA I: COPA. It limited itself to commercial sites. To the WWW, rather than chat rooms, etc. And changed some language: "Harmful to minors" rather than "indecent." To be harmful, it must do a.), b.), and c.)--it's Miller time.

        Wait a sec, said the challengers--what's a "community standard"? This risks holding the whole US to the standard of the most conservative communities.

        So the third circuit said, yes, this is unacceptable--COPA is bad.

        But the Supreme Court reversed. Kicked it back to the third circuit for review.

        So what are some alternatives to regulating suppliers of porn?

        Participant: Labeling websites.

        JZ: And porn website operators would LOVE this.

        Participant: So then the parent controls it! Password-protected.

        JZ: So you're saying the control should be on the client side.

        And what do we have? We have software that gives definitions for violence, sex.

        You're a parent and you've turned on the program. What about a site that isn't labeled? No rating? It gets filtered.

        Problem: In the absence of a law telling people to self-rate, they won't self-rate.

        What about professional site rating; hiring people to do it? Now we have Net Nanny. N2H2. Ben, what do you think of these?

        Ben Edelman: They're lousy.

        JZ: Does each site have a rating?

        Ben: N2H2 rates them.

        JZ: There are categories like "abortion providers." If you're a Senator Burns, why aren't you satisfied with this?

        Well, perhaps you are. We have CIPA. CIPA says federally supported libraries and schools must use filtering software.

        What happens next? The ACLU sues. Why? Their paper says rating and blocking programs torch free speech on the Net.

        Ben: The problem is that it fails to filter a substantial portion of porn AND that it prevents access to sites it shouldn't prevent access to.

        JZ: Ben was an expert witness in this case. He tested the filtering programs. How did you do it?

        Ben: I tested sites. I started with every site in Yahoo.

        JZ: What was blocked?

        Ben: Swimsuit sites, AIDS project sites, etc.

        JZ: How did the ACLU decide that these sites shouldn't be blocked?

        Ben: We hired librarians to assess this.

        JZ: So, the Court was persuaded. It struck down CIPA. It said the filtering programs failed. And further, the Court said they would always fail.

        Is that a fair assumption? Well, perhaps the technology could never be accurate because of the shifting nature of what is pornographic?

        Let's go back to question of proposals, then.

        1.) Target suppliers
        2.) Self-labeling
        3.) Commercial labeling
        4.) .KIDS
        5.) Bounties [a la Larry's spam proposal]
        6.) Active parenting

        Larry: What about invisible meta-tags? And have browser companies comply. One rating: harmful to minors, or not. It's not PICS.

        And it's a day (phew!).

        (permalink)         . . . . . .

        JZ calls the session to order. A surprise: Ben Edelman will be up there mixing it up with JZ and Charlie Nesson.


        (permalink)         . . . . . .

        How good a journalist is Dan Gillmor? He got wind of Berkman Affiliate Ben Edelman's newest work before I did.

        (permalink)         . . . . . .

        Larry's last thought, before the break: "I've done this experiment--I try to find an AOL 'open discussion space.' I find that no more than 23 people can be in chat room at once. They've architected the space so that no one can go in and foment a revolution--without seeming like a lunatic."

        A short break now, before a discussion, with Charlie Nesson and Jonathan Zittrain, on pornography.


        (permalink)         . . . . . .

        The agenda says, "Speech," so people speculated: was Larry going to spring a mystery speech? Or was he talking about speech speech?

        Turns out it's speech speech. I've missed a bit once more; I encourage you to check out Dan Gillmor's notes for the very beginning of Larry's speech speech.

        Larry says:         Today you can invade privacy without breaking into a person's home; it took the Supreme Court 40 years to decide that due to technological change, we must translate the Constitution.

        Conservatives point to "Congress has the power...to regulate commerce...among many states." This was limited at the outset; not much commerce yet. But the government expanded the regulation as the commerce grew. But in the last 10 years, the Court is resisting this trend. It believes we must adjust this, to make sure that the founding fathers' value of limited regulation is preserved.

        Two arguments I want to make:

        1.) copyright law has suffered a technological inversion, the same way as in my examples [above]

        The freedom to tinker was guaranteed [plays Mac commercial]. The framers were not Mac users, they did create a system whereby people could "rip, mix and burn" their stories.

        Since then, regulation has increased. Example: Valenti pushes for copyright "forever minus a day." Technological changes: eBooks. Permissions for Middlemarch: it's in public domain, but the eBook says I can only copy it ten times, print ten pages every ten days, etc.

        The Future of Ideas permissions: you cannot read this book aloud.

        All of these controls on what used to be unregulated. Technology gives you the power to regulate use. The law forbids you from tinkering with the technology.

        Law + technology = lack of freedom. Regulated creativity. Creative Commons isn't against copyright--but we must preserve the balance.

        2.) Another argument: more is less. The government is our friend, in the context of free speech. When cyberspace "came out," the big argument was that we must protect it against censorship. The ACLU litigates against government so that it cannot limit speech. ACLU succeeded the first time.

        What about spam? The problem of spam; there is increasing abuse. Flooding us with this content. Costs zero to do this. Motivation is money; someone must be answering. We don't have much political spam; not sure why. People said, "let's regulate spam." ACLU says No, we cannot do that; that's censorship.

        Law isn't the only response to spam. There is a code response to spam. Such as the real-time black hole list. It's a bunch of public-spirited Netizans trying to protect people from spam. They develop a set of policies any server "should" follow. Can't run a relay. They watch email servers and collect a list of the non-compliant servers. Your email, if it comes from these servers, disappears.

        Then came MIT v. HP. The MIT researchers were working on the spam issue, too. HP was a subscriber to the real-time black hole list. MIT's email is black-holed. MIT said, We'll shut out your email, then. The war ended, but the principle remained.

        The principle: a small group can regulate the masses.

        I think this conflict is crystallized in John Gilmore's experience. He runs an open relay mail server. He was kicked off by the local ISP. Why? 'Cause the ISP itself doesn't want to be kicked off. Gilmore says, "What about my speech?" Others say, "But what about the property right?" The punchline: there's such a thing as bad law. There's also such a thing as bad code. I think the black-hole list is bad code.

        Bad law might induce bad code. But no law at all might also result in bad code. Really awful code. The question is not, regulation or not. It's "who is regulating?"

        Here's a sample spam law: 1.) If you send UCE, you must tag it, and 2.)if you violate number 1, the first five people who track you down get $25,000 [!]. The theory: after six months to a year, spam will be too expensive.

        A little bit of regulation here would destroy incentive for this really bad code--the black hole list. Thus regulation can increase freedom.

        Contrary to what the WSJ says, there is such a thing as cyberlaw. If you focus narrowly on law alone, you miss a lot. Instead, properly balance legislation with other kinds of regulation.         [This is when the speech morphs to Q & A...]

        Participant: On Monday you were lamenting the loss of anonymity on the Net--how does that square with what you're saying now?

        Larry: I qualify that according to the circumstance. The standard legislative response to spam is that AG and ISPs will sue spammers. It turns out they have too much to do. We need Yochai's army.

        Participant: I think that your proposal for a bounty system is a boon for lawyers. I anticipate argument about whether an email is a spam or not--commercial or not.

        Larry: There will be lots of argument. Rational business will keep sending spam. We have to hit them where it hurts.

        Participant: If they implemented your system there would still be spam.

        Larry: Negroponte says computers can't figure out what a message is. But if it's labeled, any computer in the world will be able to figure it out.

        [...]

        Larry: It's outrageous that Paul Vixie is working on this problem. We could use his talents elsewhere.

        Participant: Is DRM bad code?

        Larry: Certainly some DRM is exactly bad code. In the context of DRM, however, there's a tendency to over-protect content. It's a great question. I haven't thought it through, fully, yet.

        Participant: What kinds of analogies could we make in "real space"? Phone calls; junk mail?

        Larry: Different problem. More expensive to send junk mail. The phone call analogy works better. There's something called "The Zapper." Computers hear it, remove you from the database.

        Jeff Benner: There's a spam law in Washington State. There's an automated system [automatic C & D].

        Participant: Missing in the debate over black hole list. This is a service, people must subscribe. But it's true there's invisible regulation.

        Participant: Question regarding spam bounty hunters--what about jurisdiction issues?

        Larry: Jurisdiction is tricky. The bounty hunters might not be able eliminate the whole problem.

        Participant: Trespass to chattels. Can you think of it as trespass?

        Larry: You can, but you shouldn't. The trespass metaphor is damaging. We'll address this later this week.

        The fact is, my proposal would probably face a constitutional challenge. I don't see it this way, though. I see it as a requirement to be more honest about your purpose.

        More to come.

        (permalink)         . . . . . .

        Larry responds to Jason Matusow of MS:

        It's like the old Monty Python sketch. People are afraid MS will hit them. MS keeps saying it hasn't hit anyone. It has. If this were clear, we wouldn't have as much to debate about. Jason was careful, today, about what he said about GPL. But there has been an effort to scare people about GPL. You might call it "free legal advice." But it could also be called a strategic choice.

        Gates was indeed lamenting the patent situation. I credit MS: it hasn't offensively used its patents. But there's an open question: when the GPL is out there and flourishing, what will MS do then? Will you use the patents?

        Jason:

        This reminds me of a Monty Python sketch, too. For me it's "Do you want to buy an argument?"

        MS agrees with the consent decree. I don't want to buy an argument about open source. Yes, others at MS have different views from my own. I do think that in response to Larry, I find the KFC analogy kinda fun. The thing that's left out of it: what does KFC bring to the customer apart from the secret recipe? Consistent quality; it's available rapidly. If you don't like the chicken, you can bring it back. The role of the commercial entity is to lower the transaction "cost" to customers.

        [...]

        Audience Q & A:

        Drew Clark: What's Microsoft's view on the government adopting GPL software?

        Jason: The GPL has a stated goal of protecting the coder/keep the code free. The problem is that if you use GPL code in association with other code, all the code becomes GPL. We're not concerned because we want to steal GPL stuff. We're concerned that if you take a technology--say the government does--and it's under GPL--we can't work with it.

        Larry: MS has made the argument that govt. shouldn't fund a GPL project. MS can't build on it; it will be contaminated. I find this interesting, because it works the other way, too. If government shouldn't fund GPL projects, it also shouldn't then fund the commercial projects. Both would divide the world in two.

        I think the general principle that the govt. should only fund certain projects--open or closed--is not right.

        Jason: I agree. But the blocking of commercial development shouldn't be a goal.

        [...]

        Participant: If we accept that architecture regulates the space; does a company have a responsibility here?

        [...]

        Larry: MS recognizes code is law with regard to privacy. They've adopted P3P. This is a policy choice. If we separate the "John Cleese" problem from the rest of the company, MS has lots to be proud of.

        Jason: Our customers WANT privacy. If it's important to the customers, it's important to us. With Gates, the first question is: what does this mean for the customer? Every time.

        [...]

        Participant: Your statement, "Patent is bad." Can you elaborate on that, Larry?

        Larry: I don't know what MS's motivation is. If you're against a wall, you pull out a weapon. This is a huge weapon, and it could obliterate competitors. The patent is the "injunction" against the other company. I feel this way about software patents, not all patents. Terry's tried to make me less enthusiastic about pharma patents. They are essential.

        Jason: There's a strong trend toward patent-friendly environment. Again, we've got to play within the rules.

        Participant: Can you address Palladium [MS new DRM scheme]?

        Jason: I'm not an expert on Palladium. But Palladium is about increasing trust within the computing environment. We have a strong request from customers to increase security. It's an industry-wide concern. TCPA is one effort to address this concern. It's not about content-sellers. What about the individual? The companies? Also, we will release the core to Palladium. It will be reviewed; it will fall under the shared source regime.

        Larry: Will DRM make the world a better place, or not? It could. Fair use must be addressed. Because MS has the John Cleese problem, they're not yet able to assure people that this won't be an evil plan. We're still worrying: Is MS going to hit us again?

        [...]

        Jeff Benner: Is there a scenario under which the GPL could be used in strategic behavior?

        Jason: Is there a business strategy with Linux--yes.

        Larry: I say with GPL, there isn't.

        [...] Zittrain: So the real differences have to do with how the systems invoke legal regimes for control. Is the playing field level? If each of you were on a tour of the US capitol, and there was a magic system by which you could make law--what would each of you do? What change would you like to see happen in the legal landscape?

        Larry: My short answer: software patents, bad. I'd also write a couple lines in the GPL code as well, to resolve some debates over contamination.

        Jason: ILNAL. I can't comment.

        JZ: We'll put it in legalese for you.

        Jason: I abstain. I am afraid. Of the weblog. [Laughter.] No, I just don't know if I have the scope.

        [...]

        Break, for lunch (phew! tired fingers). Be back soon.


        (permalink)         . . . . . .

        Jason:         What this boils down to is a cycle of innovation. DOC says IT industry has been responsible for 30 percent of growth. Clearly there's been an effect that we all have a stake in continuing.

        One of the things that has struck me at this conference: there's a big difference between academic view of the world and implementer view of the world. We've got to play by the rules that are in place. Gates was lamenting this state of affairs.

        If you look at Red Hat's recent statements on patents, you see they appear anathema to the company; this comes about because of the business reality they are in.

        There are 200,000 software companies. So there is an incentive out there.

        Another point: competition is essential. We are not attacking open source. We are competing. We don't hate open source. But we will compete with it.

        Government preferences: it should be based on quality of the software. Not on the model by which the software was developed.

        In terms of the balance--what's the role of standardization? This role will only increase in importance.

        Public good--is it reserved for open source? Larry said, "If all things are equal, open source wins in terms of public good." It's not all equal. The Internet today happened because the price point was dropped, through investments by companies in this. Open source played a role. But so did private companies.

        So with that, I'll stop.

        (permalink)         . . . . . .

        Terry steps to the front, introduces the debate: Larry Lessig v. Jason Matusow of MS. They'll have 15 minutes each, first, then debate/converse with eachother, then another 15 minutes of Q & A with the audience.

        Larry is at the front; I assume he's up first. Yes. Says Larry:         I want to start by laying out a framework and a plug for positions I want to argue. The choice, the question we'll be talking about: a mix of categories--free, open, shared, or closed. Think about proprietary as a machine that does certain things. Open and free gives you the plan for making the machine run. Closed = KFC; open and free = KFC + the secret recipe.

        Point 2: how do we think about the relationship between these types of code. We think about restrictions, increasing. Open, free, shared, and then proprietary code. We could add public domain software in the mix. All kinds rely on copyright. Except for public domain software.

        What are the restrictions. Public domain--code + no restrictions. Proprietary--code + tons of restrictions. Open code--code + slight restrictions. There are a "bajillion" different types of open code licenses. Shared source--code + increased restrictions. In the middle: free software--code + GPL.

        What's GPL? Copyleft licenses, imposing restrictions on adopters. A copyleft restriction: you share and share alike. You must give on the same terms that you took. [Religous difference, you see.] You're not free in a completely free sense. It's a type of restriction designed to assure that what grows out of this base remains free. Always open for others to build on top of.

        Apache is the most widely used server used on the Web today. It's open software. You can take code and redistribute a form of it. You can proprietize it if you want. The license doesn't stop you. It grows in a way that doesn't assure that the source will remain free for use by others.

        Linux is licensed under GPL. You are NOT free to proprietize the GPL. You must make the source code available.

        What are the advantages of these different kinds of code? 1.) price?, 2.) good code?, 3.) teaching others? 4.) strategic behavior 5.) destroy IP?

        By "strategic behavior" I mean anticompetive behavior: where you try to leverage your power in a way that crushes competition. MS used its platform power to disable the competition. That's strategic behavior.

        Are these four types of code structured so as to enable strategic behavior?

        GPL code--it's never possible to engage in strategic behavior. The means to undo "tying" are always distributed along with the code.

        What about "destroying IP"? There's an open question. GPL is "weakly" viral. Does shared source software destroy IP? No, but there are conditions that restrict what you do with the code.

        Which should we prefer? Who's the "we"? I'm going to think here about the government. Two reasons to prefer open to closed code. Why? 1.) transparency, an important value to govt. Take Carnivore. Transparency could lead to credibility. And 2.) externality, increasing information about how things are done. Govt.s fund basic research because there's a positive externality.

        Do we have to choose among these four? No. That's a terrible idea. We need a rich ecology.

        Statement by Gates. "Established companies have an interest in excluding future competition." Software patents are particularly deadly.

        Jason is up at bat.

        Why am I here? Microsoft's goal in being here is to learn. It's not anything other than participation. I have a few themes. Balance. There needs to be an understanding that there are many different models in play. Is there a drive to the middle today? What are companies doing? MS? Open source? Is public good only addressed by open source? Is there public good from proprietary software?

        As silicon became cheap, we went from vertical to horizontal process. MS is only one of many companies at all points in the spectrum. Many people involved. What's the effect of open source on the environment today? Beneficial effect on vendors.

        Let's break apart the question of code from binaries. We're not ashamed to sell software. Myth in this debate: that source code access is a panacea for the industry's woes. I venture that most people won't access the source code. It's great for the few who do. But keep in mind that source access isn't the end-all, be-all.

        The rate of innovation has generated so much great software. It's due to a public/private effort. Over time techologies generated by govt. funded projects jump to the commercial sphere.

        This to me is the ultimate point of balance. Private research is where the sheer volume of innovation has come from. That does not diminish the quality of the research from the open source quarters.

        How do we find the middle ground? Ballmer called open source a cancer, but we are not against open source. Our hotmail runs on it. To say that we're against open source is incorrect. But we're also a commercial business.

        If you look at open source companies, you'll see they're doing this in the reverse. They're looking to commercial what they're putting out. They'll take lessons from us.

        Shared source is the balance. It doesn't eviserate the core business. Windows is available all over the world. It's not open source. We have a different set of operators in our business. Shared source is not one thing. It's a statement: we need to keep ourselves in a healthy business model.

        MS's position on the GPL is controversial. If you want to release your code under GPL, we say "rock on." But there are issues, questions.

        My broader question: where do we take this debate after today?         Posting this; more in a bit.         (permalink)         . . . . . .

        Yochai says he'll do a quick thematic analysis, but it seems we've arrived at an impromptu audience Q & A.

        Participant: "My employer sent me to this conference because of the experts. It's not for my peers, nice as they are. I gather that on any particular subject there will be an expert."

        Yochai: "Who did you sit with at lunch yesterday?"

        Participant: "A fellow participant."

        Yochai: "Did you have a discussion?"

        Participant: "Yes, many."

        Yochai: "Did you learn anything?"

        Participant: "Yes."

        [Big laugh.]

        David Wallace (NYT correspondent): "The question was asked about legal recourse. Factual information by peers can be countered. Has an agent provocateur injected some serious harm to the community because his or her bias was not known?"

        Yochai: "Yes. This is one of the forms of 'defection.' This is a form of appropriation. A situation where someone in any system can try to bring it down. In an open system--malicious people do attack open systems. If it's robust, it will survive."

        Participant: "There were a few questions earlier about GPL. What about the contractual right. One thing GPL has is a clumsy mechanism. A distributed license controlling behavior on down the line. It's not clear that this works."

        Yochai: "It's not a contract. This is a property matter."

        [...]

        Jonathan Zittrain breaks in with a question: "Many of your exmaples of peer production sound very attractive. When we think about it, though, in terms of software, I see some software done well. It's software programmers themselves use. But it's not useful to the general public. We need a good user interface; one your grandmother can use. Is this an inherent flaw in peer production of open source software?"

        Yochai: "So, programmers involved in their own problems with software, and who have their own variable motivations--they won't develop what doesn't help them? I see your point. But I believe there are enough people with diverse motivations to produce many different types of software.

        And I suggest we break." [Laughter.]


        (permalink)         . . . . . .

        Yochai continues, on distributed intelligence:

        Peer-produced relevance.

        The yellow pages is just a collection of information. Google is providing judgments of relative worth. Google collects the judgments of many.

        Terry Fisher breaks in, says IP law clogs the system Yochai is describing. An artist in New York creates art that distorts Barbie; he received a C & D and withdrew. This was before Chilling Effects. Mattel does have a credible 'tarnishing' claim. Distributed intelligence is clogged by IP law.

        Yochai again:

        Slashdot, finally. A quarter of a million people bring the news to their peers, commenting. They peer review: who is talking nonsense, who is insightful? Here's a story from this morning. At the moment it's organized by "oldest first"; now I'm changing it to "highest scores first." Thousands vote, up or down. No way to control it. The aggregate judgment rules. You the reader decides what's most important to you: you want funny? You want insightful?

        Quarter of a million people produce what a technology section in a newspaper gives you. No one paid. They do this using free software.

        One of the main constraints on peer software is how to integrate. At the end of the day what you need is the open source development network, which because the cost of production is low, can run cheaply.

        Finally there is the question of distribution. Proofreading. How many of you have done proofreading? There's a project called "Distributed Proofreading." Here are the numbers: pages done per month, starting in January of '02. 30,000 pages a month.

        I don't care what else you buy about what I say. I want you to see this. I want you to see non-market production. First question anybody asks, "Why do people do this? For free?" There are intrinsic motivations. It's fun. I'm part of a community. There are extrinsic motivations; I build my skill, I build my reputation. In the future, what I do will eventually bring me some money.

        I would generalize about this this way: there are different kinds of rewards. The thing that is useful to remember. Not every dollar at every time is equal. Some value the extra dollar more. Money has a satiation factor. It's more or less value given other factors.

        Money is correlated with social/psychological returns. Taking money for sex turns it into something else. There's a cultural question here.

        Implications: 1.) if contributions each person make are small, it would make less sense to pay each person (transaction costs too high), but you can 2.)give them social-psychological rewards.

        Money might even lessen the value of the behavior for some people.

        Managing peer production means managing the social-psychological framework.

        "Why would anyone do it?"--that's not the right question. The question is how to build an environment in which thousands of people will want to give a little bit of time to help make whatever work. It's organization, not incentives.

        What's the value of this phenomenon? Human creativity becomes a salient economic good. By comparison to firms and markets, peer production has significant advantages. Information gains; human capital is highly variable.

        Great stuff. More coming.

        (permalink)         . . . . . .

        Yochai is suddenly talking blogs:

        Let's look at Kuro5hin, k5. It has characteristics that are very similar to academic publishing. People read items, vote them up or down. The system logs votes. How many people participate? This is a rich democratic process; two or three people run the site, and 25,000 people participate. Specifically committed to serious, good writing. No worse than much interesting commentary written by traditional outlets.

        Wikipedia: let's compare it to encyclopedia.come. Encyclopedia is not bad; it's an encyclopedia, not a textbook. The difference: this is proprietary. Wikipedia isn't; it's the work of many interested people. Play with it. Play with both. Chimps are just as good on Wikipedia.

        Okay, so that's utterances. Online names are also a form of mass, distributed effort.

        How do we know what's credible? Amazon needs to deliver good stuff to you. Stuff you care about. It uses the judgement of the users to help other users. Google distributes the production of relevance. Google's business model is to write software that captures the judgment of many people.

        More coming.

        (permalink)         . . . . . .

        I've had technical problems this morning; it was either the battery or the power cord. Swapped both, and now everything seems just fine.

        Missed a large portion of Yochai Benkler's talk on free software and commons-based peer production. Luckily, we've got Dan Gillmor blogging all along the way; I hope you go there when I'm not here.

        Yochai's talk sets the stage for the big showdown today: Larry Lessig debating Jason Matusow of Microsoft on the merits of open source, shared source and proprietary software. Matusow is the program manager of MS's Shared Source Initiative.


        (permalink)         . . . . . .


        Posted Tuesday, July 2, 2002

        Someone from the Gartner group just gave a brief report on digital piracy (more on this later); now it's time for the final panel discussion: "The Future of the Internet." Moderated by the mischievous Charlie Nesson. [Rap music fills the room; Charlie prepares his tech...be afraid. Be very afraid.] Says Charlie:

        The future of the Internet. The future of America. Is the latter a bigger question? Are the two related? What about the future of the earth? Is the future of America related to the future of the earth? Aren't we all in danger?

        The challenge of the week: let's leave Larry with a ray of hope. Some strategy for preserving our culture. Larry suggested this might be a good place and time for a meeting--an RFC on the future. Out of it might come: who knows what? Some real intelligence, perhaps. Are we capable of governing ourselves? To me the question is intensely personal.

        We are moving into a more open environment. The lesson must be: we must have fewer secrets. This is the lesson of Enron, of WorldCom. Small entities, a virus in the system, can do great targeted damage.

        Is the Internet rhetorical space? If so, what is important? Our identity. What is our brand? I say it's personal. [Plays Monty Python skit RE "Blackmail."]

        Charlie assumes his "eon" persona: welcomes us to "Berkman Radio." Charlie says he's after the meta-story: the story of the story. He invites Christopher Lydon to the stage. Chris says he has a stake in the future of the Internet. Charlie says he remembers when we were "loved around the world." Lydon says we're cowboys, deep down. And in the context of the Internet? He thinks what's missing in Larry's vision is that we could "revision" ourselves.

        Charlie asks Chris, "Why did you go to Jamaica, Singapore, and Ghana?"

        Chris says he went as part of "Parachute Radio": it was an exchange of cultural information, an opportunity for communication between cultures.

        Charlie says the Internet is tool for connection; Chris says the human voice is the important thing.

        Charlie requests that the journos come on down to the front. They all do: Dan Gillmor, Yochi Dreazen of the WSJ, David Wallace, a correspondent for the New York Times, Jeff Benner, a freelancer for Wired and Salon.

        Charlie says he has a hypothesis: We're now in an environment in which many are able to reach others, easier.

        David Wallace responds: In my view, there is no cyberspace. No matter where you are, there you are. In other words, you're regulated where you are.

        Charlie says he teaches Evidence; he'd like to know how America should be led, in terms of character, if put on trial.

        Jeff asks, What are the charges?

        Charlie responds that we're dollar-driven, manipulative through media. We're friends of Isreal, discriminate against Arabs. [Turns to Chris Lydon.]

        Christopher, regarding your emnity toward George Bush: is he your enemy? If your mission is to move toward moderation--an open, generous America--would you embrace or rebuff Bush?

        Chris responds that he'd advise George Bush to study Reagan. [Hey, guys; I'm only the messenger.]

        Charlie says we're a brand, citizens of the .EDU domain, and asks whether--were we to package a message in a way that was sufficiantly powerful, sufficiently true--we would have a tool for change.

        Dan Gillmor responds. He says the power is in two-way communication. Who will win in this war... over communicating both ways? He says he thinks there's a war between these two camps. He clarifies that blogging is not "what I do"; it's "what I do today and yesterday. I'm a journalist. I do this because my readers know more than I do. That's not scary; it's empowering."

        Charlie breaks in to discuss the Berkman Center's Jamaica Project; he promises the conversation's many strands will connect in the end. But maybe not today [big laugh]. [He plays an audio bit from Jamaica; someone is describing the technology in a radio station there.]

        Charlie says his interest in this is in finding a way to use technology to uplift, to effect change (through education).

        Yochi Dreazen introduces himself; Charlie asks him, as a representative from the WSJ, could "organization and message" trump money in the battle to reach an audience?

        Dreazen responds: he says he doesn't buy the idea that your money and resources don't help to get your message out.

        Charlie says he had an experience with Internet message-making/communicating; he sent an email, then he published it on the Web--and it "took off." So he proposes that the viral nature of the Internet makes message-making more effective.

        Jeff Benner says he'll take a crack at what he thinks the meta-message is: he says the jury is out on what changes the Internet is making on society. Having a network is not enough for a revolution. But it's something.

        Charlie says he'd like to change the idea of personal agency. He'd like us all to be actors in "this space." We have a message that resonates, he says, I'd like to see it go. Take this week as a challenge. We've been grappling with the idea that the Internet is a new space; how we build it clearly affects what it will be like to live in it.

        Charlie challenges Terry with a question: Would he auction off sponsorship for ILAW? Terry strongly objects to the question's implications: that the "message" of ILAW is somehow being sold.

        The session ends with participants writing feedback memos on the program; there are sure to be some strong reactions to this session.

        That's it for today. I hope you join me for more tomorrow.


        (permalink)         . . . . . .

        Yochai Benkler is in the house. [I've missed most of Yochai's presentation; see Dan Gillmor's journal.] So is Jonathan Zittrain, speaking on "Copyright, Internet--What now? What next?"

        Says JZ:

        There is a range of plausible behavior within which you can act. In the beginning, things moved slowly; we needed less constraint. When the printing press arrived, we were pushed toward more constraint on our behavior. In 1994, stuff started to hit the fan; we had better browsers, better connections. It became the era of promiscuous publication. John Perry Barlow wrote an article in 1994, the point of which was that copyright is a leaky boat; it got a big reaction from lawyers. Ed Hore wrote that JP Barlow was simply wrong (and concluded that the former Grateful Dead lyricist had been smoking something).

        So along comes legislation--one example of which was the No Electronic Theft Act. This criminalized copying even if you copied things for fun. The fact that this legislation existed meant private actors could bully others on the Net--using the good old C & D. Don Henley sued for use of Don-Henley.com [reads the C & D letter aloud]. When you get a letter like that, you gotta call somebody. Chilling Effects is here to help give us a barometer for what's going on. It's not just letters going to individuals; the letters go to ISPs, to middlemen.

        We had a student who came to us with a C & D; the MPAA threatened him. He was shaking in his boots; he stopped. So this is a powerful tool.

        Okay, so going back to Larry's rubric: what are the other tools in the tool box? We've got 1.) laws, and 2.) norms. But is the influence of "norms" really that strong? Here's a site to help answer the question: the RIAA copyright Q & A. It's copyright propaganda. And this other group suggests that teachers encourage students to put a copyright symbol on homework. So there's an understanding that norms are a factor.

        For me, Eldred brings home the fact that we're just not used to seeing anything coming into the public domain. We're starting to feel that intellectual property is actual property. But the word "property" obfuscates what IP is about.

        So, back to the elements that regulate behavior: we have law, norms, and finally, code, or architecture.

        So what we're starting to see is changes in the archtitecture. Let me tell you about when Metallica sent a C & D to Harvard about Napster. The letter asked Harvard to stop; it said "Do the right thing." Most of this file-swapping stuff is illegal. At the end of the letter it said something like, "If you don't, we'll pursue this matter further."

        Harvard's response? "At the moment, we prefer not to." It said, "Go soak your head."

        But a Crimson article, a week later, says Harvard has restricted outward-bound Napster traffic from Harvard dorm rooms. So, using architectural control, Harvard has made it so that it's no longer a good source of contraband music files.

        Here's another architecture change: change at the "nodes." Stephen King's second eBook attempt was "Riding the Bullet." You can't print the thing out. Though some people hacked it, most people read it the way the software allowed.

        And the future? Bill Gates recently sent a memo to the company to talk about "trustworthy" computing. What are trustworthy computers? Those that can be trusted AGAINST the user. The goal for computing "trust" is so that sellers can use it as a vending machine. The TCPA is a consortium coming up with standards for "trust." These are notoriously difficult enterprises (like SDMI).

        Because of this difficulty, we've got people asking for government intervention.

        One complaint from the free speech types about the current situation is that we've shifted debate about use from public to private. We have code rather than law; we have private companies deciding how you can use media.

        But then legislation is introduced; government decides it will set up standards, defining what computers can and cannot let you do. And there's a big uproar.

        Either way, you lose: private companies act, or the government steps in.

        Berman understands all of this. Berman says when SDMI fails, the government must step in to dictate it. But even DRM can't solve everything. It won't be fool proof. He says we should turn to "technological self-help."

        This is, again, showing you that all the parties have an increasing awareness about the levers to pull to regulate behavior.

        Looking toward the future, now: where are we headed? Toward more constraint? My question: Do we care who makes the boundaries? Should the government step in to solve this? Or do we want to leave it industry? Do we care what kind of boundaries there are 'round plausible behavior? Should they be built out of law or technology--the speed bump?

        And are we headed toward brain-damaged PCs? They don't sell very well. It isn't popular from a marketing standpoint.

        On the other hand...this [shows picture of TiVo] is the future, for me. The TiVo box. It gives you what you want. It's a Linux machine, but you wouldn't know it; it's mainlining TV. This is the future. You'll be happy. But you won't have the marginal uses. Will you still be blogging? I don't know.

        Final question: Can the open co-exist with the closed?

        (permalink)         . . . . . .

        News flash (and not on ILAW): the IP Section of the ABA has approved a resolution supporting the CTEA. Writes Betsi Roach, the section's director, "It is now Section policy. The ABA Board of Governors did not approve our request for policy, and thus we were not able to file an amicus brief [in Eldred]."

        (permalink)         . . . . . .

        Larry Lessig is up at bat again. This time to talk Eldred. Says Larry:

        Eldred happened because I stumbled over the Constitution's copyright clause: it says "Congress has the power to do "a," by doing "b."

        A: promote the progress of science and useful arts by B: securing for limited times, exclusive rights...

        The CTEA exists, says Larry, so that "no one can do to Disney as Disney did to the Brothers Grimm."

        What's the story with Eldritch Press? Eric Eldred publishes public domain materials, making them freely available on the Net. He was especially eager to post certain materials that were to pass into the public domain (a "lawyer-free zone") when Congress passed CTEA in 1998. Eldred told Larry that he wanted to engage in civil disobedience. Not a good idea, said Larry. Instead, why not take a principled stand on the issue? So Larry & co. file a suit on Eldred's behalf.

        In the first filing Larry & co. argue that the CTEA makes it so that copyright is NOT "limited." It is effectively unlimited, or perpetual--and therefore violates the Constitution.

        Second, it's not going to promote progress. Asks Larry: Can you "promote in reverse"? No. "Can we get Gershwin to write more?" No. [Big laugh.]

        The government responds: "It's a limited time, so long as each time is limited."

        Larry: "This is an argument only a lawyer can make."

        Publishers have used their power over the legislative process to capture monopolies for as long as possible. And the government's reading of "limited times" only makes the problem worse. The publishers will keep spending money to lobby Congress to keep their monopoly.

        The copyright clause is in tension with the First Amendment, as copyright is a regulation of speech. Asks Larry: "Is it therefore unconstitutional?" The Supreme Court has addressed the question, resolving the tension. It said there's no conflict, because the copyright clause is an "engine of free expression." It incents speech.

        But, argues Larry, retroactive extension is a restriction on speech that does NOT produce speech.

        How does the government respond? It says that there's a First Amendment exception in regard to copyright, so First Amendment review doesn't apply. Larry & co. keep fighting, but lose two appeals.

        The second appeals court rules that copyrights are immune to First Amendment challenges--but with a dissenting opinion that may be useful to the Eldred challenge.

        Then, in February, the Supreme Court grants review for the case--shocking one and all. And in May the opening briefs are filed. Amici filed, too: it's an ecclectic group--including Richard Stallman, 17 economists (5 Nobel Prize winners), law professors including Yochai, librarians, Brewster Kahle (inventor of Internet Archive).

        This is where the presentation gives way to Q & A from the audience. Here's a brief sampling:

        Participant: "Would there be a push for extension if it weren't for retroactive renewal?"

        Larry says no. The real money is in the past.

        Participant: "If we're really concerned about incentives for creation, why aren't we working on different terms for different works?"

        Larry: "Yes. What about software?"

        Drew Clark: "If you're successful in getting the Court to strike the CTEA, you're still stuck with a 75-year term. Aren't you going to run into 'takings issues'?"

        Larry: "If you did a roll back, yes."

        Julie Cohen: "What about the TRIPS treaty? What are your thoughts about that obstacle?"

        Larry says he thinks we've got to reconsider the treaty.

        Jonathan Zittrain: "The US does not pull out of treaties." [Big laugh.]

        Charlie Nesson: "As persuasive as your analysis is, I am unsatisfied as to the 'limited times' argument. Until you come forward with some way to explain what 'limited' means, you've got a weakness."

        Lessig responds that we can't get into 'how long is too long.' We've got to avoid opening the Pandora's Box. It's a strategic choice.

        A bit later, someone signals that the session has ended. To which Larry replies: "This conversation is for limited times only."

        It's break time again. Back in a bit.

        (permalink)         . . . . . .

        Georgetown's Julie Cohen hushes the madding crowd and begins her presentation on recent cases:         The DMCA, enacted in 1998, established these provisions:

        Thou shalt not circumvent a technological measure that effectively controls ACCESS to a protected work [Charlie Nesson has said this is a new right--a "right of access"].

        Thou shalt not maufacture/"traffic" in technology that circumvents copy protection.

        Exceptions to these rules: first, libraries may circumvent in certain cases. Second, law enforcement, as you might imagine, can do as it so wishes. Third, reverse engineering is allowed for interoperability, in certain cases. Fourth exception, "good faith encryption research." [Cohen mentions a "credential" check for researchers; in other words, you can't just be curious. This worries me.] Fifth, you can protect yourself from the collection of information about your online browsing activities [oh, good.]. Finally, you can conduct security checks [kinda necessary, yes?].

        Moving on to remedies: both civil and criminal penalities exist. And--this is not new news to many of us--the criminal penalties are extremely harsh.

        The cases:

        Universal v. Reimerdes (or, the DeCSS case). JJ wants a Linux-based DVD player. 2600 News picks this up; links to DeCSS. It's served an injunction against the linking; this is "trafficking" in the DeCSS device.

        Felten v. RIAA (SDMI case). Felten takes up the SDMI challenge, plans to share results. He gets a nastygram from the RIAA. Uproar ensues. RIAA says, "psych!" Then Felten sues for an affirmative right to publish; RIAA again says, "Oh, but we didn't really mean it." The judge dismisses the case.

        US v. Elcom (Sklyarov/Adobe eBook case). Sklyarov is arrested in US under the DMCA--the first criminal case. Charges were eventually dropped against Sklyarov; Elcom is now the target of the suit. The case is moving forward to trial.

        These three cases send a message about what courts think the DMCA means.

        What does "effectively circumvent" mean? The courts say--there isn't some high threshold of effectiveness that these "devices" must meet. Is there a bottom threshold? The courts have not spoken to this question.

        Linking == distribution, if done "knowingly."

        Jurisdiction over Elcom is permissable. [Evidently, DMCA rules the world.]

        As to the relationship to fair use and contributory infringement doctorines: evidently, the courts say there is no "substantial noninfringing use" defense. [Whither Sony Betamax?] In addition, your motivation doesn't matter. There is no "general fair use defense." The court says this isn't about copyright. This is about the anticircumvention clause. [Interesting. Again, this is what Charlie Nesson has said.]

        As to the reverse engineering exceptions: the court said they are limited. Disseminating the info to the public at large vitiates the exception.

        A similar fate in the higher courts, for cases on appeal: code is speech (according to Supreme Court), said the court--but so what? There is no First Amendment defense. Finally, there is a high threshold for chilling effects (Felten's speech wasn't chilled).

        As to "Article 1" challenges--these, too, were shot down. Said the courts: fair use hasn't been eliminated; the public domain hasn't been eliminated.

        What are the implications? Cohen identifies several key open questions: what's an "effective" technological measure? When is a link actionable? What counts as a prohibited technology? What kinds of information fall within the exceptions? Does the DMCA really rule the planet?

        There seems to be some selective prosecution going on; don't sue Felten, sue "hackers," because "we know they're bad."

        Is there a zone of safety for researchers, after Felten? Well, sure. But it depends on who you are. Are you a professor at an Ivy league institution? Or just incredibly smart and curious?


        (permalink)         . . . . . .

        FYI: for those of you just now tuning in: Dan Gillmor and Drew Clark are both here at ILAW with me, writing & posting.

        As an intro to the next session [entitled, "Recent Litigation: the DMCA Cases; Julie Cohen], Terry lists what he sees as the defects of the current scheme [we shall refer to this as plan A], in comparison to the potential the Internet seems to promise:

            * High transaction costs
                * Price to consumers of access remains high
                    * No "celestial jukebox" yet
                        * Encryption and "ephemeral" downloads reduce flexibility
                            * Continued concentration of music industry reduces consumer choices
                            * Limited effectiveness: P2P threatens artists' revenues


        (permalink)
        . . . . . .

        Terry is getting warmed up now here at ILAW: we're at the Sony Betamax dispute.

        The networks/studios are dismayed that viewers can record material, skip commercials--but what can they do? Go after the members of the public? In the US, notes Terry, that's impolitic. So the studios go after Sony. It's a 5-4 decision before the Supreme Court. Sony is liable only if the VCR is "not capable of significant noninfringing uses."

        So here's where we get the peculiar concept of "time-shifting." Time shifting copyrighted materials is judged to be fair use--hence the Napster case and its siblings.

        Now that we've covered the background--the legal landscape circa 1990--we arrive at the cycles of innovation/resistance. After DAT comes the response. It's the Audio Home Recording Act (AHRA): it sets up serial copyright management system; a tax and royalty systems; and a safe harbor for noncommercial copying.

        It also [significantly for Napster] specifies that no action can be brought against those engaging in "noncommercial use" of copyrighted materials.

        Then there were the encryption initiatives--the digital lock up. DVDs: CSS [hack: DeCSS]. SDMI [Felten broke it]. RealMedia copy protection switch [Streamripper ripped]. eBook reader [Sklyarov got through].

        Terry skips through territory he says Julie Cohen may cover and hones in on MyMP3.com.

        UMG says there was nonpermissive copying, copying was for a commercial purpose, copied material is highly creative, songs are copied in its entirety, etc.

        Difference from Sony case; the defendant is the company. And MyMP3 lost. Big. [...]

        Next: webcasting. Radios also used the technology to "simulcast." Recording industry pressed for the missing right: performance rights. It won this right. However, there are limitations. It is only a performance right in digital audio format. [Good ole analog is safe.] There are exempt transmissions: "storecastings." [Listening to music at Filenes!]

        CARP Ruling on webcasting: the rates were released in February 2002. They don't look big. But do the math. Two million dollars per year for a small HipHop station, for example. Drive 2/3 of webcasters off the air, so they can scoop up the remains, dirt cheap. Copyright Office cut the price in half. This has helped some, but, says Terry, not nearly enough.


        (permalink)         . . . . . .

        Terry Fisher steps up to the podium, and after clearing away administrativia, begins. Says Terry:

        If yesterday was about how the Internet is structured, today is about how law impacts the Net--with the underlying question being: "What's plan B?" In other words, what's the alternative to what we've got happening now?

        I'll start by giving an overview of Internet legal history; it starts in 1990, goes to 2002 [chuckle]. Then we'll explore some pieces of recent litigation, with Julie Cohen from Georgetown on the Reimerdes case; Larry will discuss Eldred case. Third--we'll have a panel discussion on diffrent ways in which this body of law is currently organized and could be organized better in the future. And finally, a discussion by Charlie.

        What is plan B?

        I'll go over potential benifits of Internet distribution of music, discuss copyright law and music, then get to what's happened--the innovation and resistance cycle. An endless cycle.

        Potential benefits of distribution: cost savings. Eliminates retailer, eliminates some of what record companies do [this is contorversial]; eliminates the manufacturer; eliminates distributor. Two thirds of the costs have disappeared.

        Also eliminates overproduction and underproduction; no physical inventory to unload. More convenience and precision. Can buy individual songs. Can achieve, in other words, the celestial jukebox.

        Also possible: increase number & variety of musicians. Digital equipment--reduces technological barrier.

        Last point: "semiotic democracy" can be achieved. The ability to create cultural meaning-making is widely distributed. [This speaks to blogs.] Expands set of people who can reach a wider audience.

        Possible costs, or problems: threatens recording artists, record companies (music industry).

        So where is the law in relation to all this? In 1990, there were two objects of protection:

        1.) composer/creator/songwriter--exclusive right to reproduce the music, right to control derivative works, right to control distribution, and right to public performance.

        Suppose I get permission to record Larry's speech and now it's in JZ's hands. Can JZ play it on the radio station? No--it's a public performance. Does JZ have to negotiate with Larry (and others)? No, he goes to three orgs that issue blanket licenses to the JZs of the world.

        2.) company who creates sound recordings--no rights until 1972. As of 1990, I hold copyright to sound recordings. I've got every right the creator has--but public performance. JZ doesn't have to pay me. Why? The hotly contested theory was that playing would encourage more buying.

        Right of composer is stronger than right of recording artists.

        What about if a another musician--Yochai--mimics the recording? He's violated composer's rights--but he hasn't violated the recording company's rights.

        How about sampling, asks an ILAW participant. The short answer: It's tolerated.

        [...] These are a set of entitlements. Copyright law is structured such that there are entitlements and limitations.

        Fair Use Doctorine: fair use of a copyrighted work isn't infringement. In the US, it's more generous and more murky than elsewhere.

            * what's the purpose and character of the use?
                * what's the nature of the fictional work?
                    * amount and importance of the portion used? Quantity *and* quality is considered
                    * impact on "potential market" for the work? [Very murky. How do we define potential market. Supreme Court has left this issue ambiguous in three decisions.]

                    More to come, after I post this.

        (permalink)
        . . . . . .

        Now for a second day of blogging ILAW.

        You ready?

        This just in: Drew Clark--senior writer at National Journal's Technology Daily--is also posting articles on ILAW as we go.

        (By the way, he's got a thing or two to say in response to Lee Gomes's argument that cyberlaw is hokum [WSJ: registration required].)



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