ILAW: Technology

ILAW begins today with a session on technology--a panel moderated by Professor Charles Nesson and featuring Glenn Otis Brown of Creative Commons, Alexander Macgillivray of Google; and Berkman Fellow and EFF Staff Attorney Wendy Seltzer.

Larry: We're honored this morning to add to the program a number of Berkman alumni--they were all students at Harvard Law School and were important at the very beginning, at the founding of the Berkman Center.

Charles Nesson: Wendy was part of the team we called "Wendy and Alex": the first programming team at the Berkman Center, who created a teaching tool that Jonathan is still refining. Wendy went on to practice in NY and then teach--and now she works for the EFF. Alex also went into practice, then moved on to Google. And Glenn was the person who got us focused on digital music.

Our assignment from Larry today is to set up our consideration of content, to tee up the questions so that we can explore them later on today.

[Plays clips showing a parody collage of George Bush and Osama bin Laden, then Bush and Blair appearing to sing "Endless Love" in duet.]

So what we want to introduce to you are some examples of sampling, and tee up the problems they present. Alex, we'll start with you.

Alex Macgillivray: To help in our understanding what "code is law" means, here's a bit on the code. P2P and client/server. In client/server, what happens is the client requests information, and the server sends back a response. P2P changes this; each client sends and receives information.

Applications are more complicated of course. Let's take a look at peertunes. They were relying on Spanish law to do this.  And you're all familiar with Napster--that's a bit more complicated. Napster kept a "master index." This is more like the old client/server, with the p2p happening on the client side.

Gnutella is more purely P2P. One friend asks his friend, his friend asks another, etc. To the user, of course, all models look the same. You find the song, you download it, you're set.

KaZaA is slightly different. Many peers, all with same software. Charlie is like KaZaA; he's a supernode. Search asks for supernodes, and it asks other supernodes, etc.

What I want you to keep in mind: there a lot of different ways to do this. You can go from pure client/server to pure P2P.

CN: So this is the front page of KaZaA. How many have you used this? [A few raise hands.] Not many. [Brings up the front page and does a search for "Satifsfaction"] Someone ripped the Rolling Stones and you can see that scores of people have downloaded it. [Connects to and starts downloading.]

KaZaA has been very successful. No crash yet, legally speaking. Gnutella wasn't as effective. Supernodes more effective. No center, but rather, a ring of nodes.

Ah: we've now downloaded; I can play the song. That's pretty good; it's easy, it's fast. You can see why the recording industry is upset.

JZ: Just to clarify, you've just infringed a copyright, haven't you?

CN: Yes, I have. But I may have a fair use defense; I am in a distingished university, and I am teaching a program.

JZ: So you're using the "distinguished university" exception?

CN: Yes.

Participant: It's now in your shared folder, and others can get access to it from you--just to compound your trouble.

CN: Good point. Many don't realize that they can also be a generous contributor to the system, simply by participating. [...] It appears that most of the shared resources of this system reside at universities. There are substantial numbers of people doing this--and millions of files shared. 

Just for chuckles, let's go back to search; let's try to download something hot, something new. Say, "Where is the Love?" by Justin Timberlake and Black Eyed Peas.

Glenn: Is this when your computer explodes, Charlie?

CN: Could be; you never know when you're doing this stuff. [...] One fascinating feature is that you can also dig deep into shared files. If I like a folder, it's an open book--both to me and to the RIAA.

[Plays "Where is the Love?"; the sound quality is good until suddenly it breaks up...then tries another files; it breaks up again. The sound is excrutiating.]

So the question I want to leave you with is this one: I have a feeling that many here would say P2P spells death to the music industry as we know it. That P2P will "win." But others who might say that the industry will conquer it. We've had Congress introduce "self-help" legislation; it has had a surprisingly warm reception on Capitol Hill. Let's think about what that might mean.

Next up: Glenn from Creative Commons.

Glenn: I'm not so much a true Berkman Center founder as a hanger-on. But these guys are all former professors of mine; I'm concerned that they'll see I haven't learned much.

Okay, so I'm going to talk about sampling content now. When we talk about sampling, people use a number of different terms: mash up, bootleg...I prefer the term "collage." I'm going to talk about different ways of sampling.

First, what I call "DreamWorks Collage"--Hollywood collage. Mike Myers has made a career of sampling. He signed a deal with Dreamworks to get access to any movie that they have access to. Multi-movie deal to put himself into old movies. He compared it to rap artists; said "I am the Puff Daddy of film."

Interesting that he used rap as an example. Prior to 1991, you didn't pay for samples. Then someone got sued. It's now a culture of sampling only for those who can afford it.

Beyonce is a sampler as well: "Bootylicious" samples a riff from an '80s song. "Goldmember" is a sampler song.

Other examples [lists a few] are illegal art. No one asked for permission. Negativland: U2 and Casey Casem. "The Forbidden Single." [Plays the single.] The B side was Casey Casem cussing out his manager. I won't play that.

U2 sued. Settlement: the recordings had to be shipped to Island records and destroyed. Negativland actually had to turn the copyrights themselves over to Island Records.

Their views about copyright law were formed at that time; they are now producing Illegal Art exhibition in SF.  [Shows clip that mixes "The Little Mermaid" with an angry lawyer discussing suing over copyright violations. It can be found at http://www.illegal-art.org.]

Third kind of collage: a "hell raiser collage." Christine Aguilera and The Strokes. When the mash up came out, they combined the videos from each artist as well. Violated every kind of copyright. Christina's "Genie in a Bottle" mixed with The Strokes, in "A Stroke of Genious." [Plays video; the mix is excellent. Very impressive.]

Nothing involving parody--a tribute to both songs. This mash up is hard to find. The Strokes didn't object--no C&D letter. Not necessarily a coincidence that the two artists are on the same lable.

Footage may have been public domain? No, they said. Paying for it is much more convenient.

Fourth model: "The White (& Red) Stripes Collage." Plays the Creative Commons introduction clip.

Some themes that arise: Is it parody? Do the artist have to know a lawyer? Is the song available? Did they pull it off well?

Alex: Who here has produced a mash up? Okay, not many. But everyone does sampling, all the time. I work for a sampling company. Let's expand what we mean by sampling. Here's a web page with a hyperlink. A web page with an image on it. On the Internet, "sampling" is part of the process of creating a useful page.

Here's an OPML. An outliner. Who is the author?

Here's a weblog. [Brings up BoingBoing.] The default is to quote material from all over the Web.

Google, where I work. Google News, Froogle. This is all sampling.

Question: Who samples? Everyone. Who is the author? Often it is unclear. Do we need new technology? Or a new legal regime that recognizes sampling on this scale?

Glenn: My one broad question: we see this illegal material that is sometimes supressed, and sometimes not. Do we need more clarity, or not?

CN: This is a perfect tee-up for you, Wendy.

Wendy Seltzer: Let's take the discussion of sampling even more broadly. I want to talk about cultural sampling, and the kinds of responses from corporations.

This is Davezilla, and this is Godzilla... This is the Toho's response to Davezilla. Remove "confusing." Davezilla--the reaction, this "quizzilla." Can you distinguish between these "Godzillas." A web of protestors sprung up and claimed some ownership of Godzilla. Supporting uses of "'zilla"--others' claim to the notion.

So who gets the Web here? Is it the guys who sent the first C&D letter? Another example: Sony and the Aibo pet. A robot dog. A programmer wanted to teach the dog to dance; extracted the card and made the dog dance. He received a C&D letter.

Around this beleagured programmer sprung up a protest. This is helping your dog, not hurting it! Legit-i-mutt. Aibo goes to law school to learn how to read a EULA.

Aibo Simpsons--an aibo Calvin and Hobbes, etc.

C&D from a kennel association to Aibo dog web sites: "your robots do not produce offspring, so there is no lineage to record..."

The website www.whitehouse.org got a C&D; Enron owns the GOP. Concern that people would think that Enron really has purchased the GOP.  Jeb! website: Jeb Bush trademarked "Jeb!" complete with exclaimation point. eGray. WTO v. gatt site.

A few do get it. Moveon.org uses the Web to assemble people. Howard Dean campaign using the Meet Up sites. Rather than slapping down criticism, they use the Web to build their own campaigns.

What can the law do against these kinds of "attacks"? What should the law do?

CN: That's it for our show & tell.