In Tune

Australia’s music piracy group, MIPI, launched a ten minute online video today in which a number of local musicians discuss the difficulties they face as artists in the digital age. Intended to highlight the impact of file sharing and piracy, the movie is called InTune. It downplays the rock star lifestyle and emphasises the uncertainty artists’ face. While those interviewed support the use of the internet to gain exposure and to extend their audience, the rate of technological development and dynamic nature of viral marketing avenues is raised as a complication as is the lack of income derived from traditional sources such as album sales. This movie, designed for distribution to high schools, lacks any real educational qualities with no actual statistical or factual information and is more easily classified as an emotive and shallow attempt to address the file sharing issue.

FUDucation [Fear, Uncertainty and Doubt Education] is a term that I have used with respect to many of the educational initiatives that have been attempted in recent years including the Captain Copyright saga in Canada. While there are other sources of educational material for high school students in Australia, and more to be released this year, there remains a distinct gap in providing material that highlights the availability of alternative remedies and the need for copyright law and the content industries to adapt.

Perhaps they should look to providing a more balanced approach. Earlier this year the Green Party of Europe released a video supporting file sharing and suggesting that major media corporations exploit artists and lobby for laws that protect themselves:



In truth the turbulence in the digital music environment is something that should be celebrated and both sides should recognise the impossibility of providing a respectable representation of the issues in such short clips. Neither attempt provides enough information to enable students or members of the public to make reasoned and informed decisions.

Further Reading
Australian Music, In Tune <http://www.in-tune.com.au/ > at 29 April 2008

The Age, Please Don’t Rip Off Our Music (29 April 2008) <http://www.theage.com.au/articles/2008/04/29/1209234824947.html> at 29 April 2008

Australian Copyright Council, Education Resources on Copyright for Children
<http://www.copyright.org.au/information/specialinterest/kids> at 29 April 2008

ArsTechnia, RIAA writes its own "news" for local TV stations (21 December 2007) <http://arstechnica.com/news.ars/post/20071221-riaa-writes-its-own-news.html> at 28 December 2007

Zeropaid, UC Berkeley Starts 'Learn Before You Burn' Campaign to Fight Campus Piracy (17 August 2007) <http://www.zeropaid.com/news/8961/UC+Berkeley+Starts+%27Learn+Before+You+Burn%27+Campaign+to+Fight+Campus+Piracy> at 19 August 2007

ZeroPaid, IFPI releases so-called 'inconvenient truths' about file-sharing and piracy (1 June 2007) <http://www.zeropaid.com/news/8818/IFPI+releases+so-called+%27inconvenient+truths%27+about+file-sharing+and+piracy> at 16 June 2007

p2pnet.net, Australia's MIPI: helping kids (26 April 2007) <http://www.p2pnet.net/story/12067> at 30 April 2007

BoingBoing, Michigan State U forces students to watch RIAA videos (21 February 2007) <http://www.boingboing.net/2007/02/21/michigan_state_u_for.html> at 23 February 2007

Slyck, Captain Copyright - The Beginning, the Middle, the End (6 February 2007)<http://www.slyck.com/story1396.html> at 8 February 2007

p2pnet.net, Captain Copyright bites the dust (5 Februar 2007) <http://www.p2pnet.net/story/11223?PHPSESSID=a65691ed414ba81b40a397181f1fe6ab> at 6 February 2007

ZeroPaid, Green Party of Europe creates new video supporting file sharing (22 January 2008) <http://www.zeropaid.com/news/9210/Green+Party+of+Europe+Creates+New+Video+Supporting+File-Sharing> at 30 January 2008

Clips for April

Here are the links to the audio interviews I have heard this month.

1. Billy Bragg Interview *** LANGUAGE WARNING***

The Register, Billy Bragg: Why should songwriters starve so others get rich? (11 April 2008) <http://www.theregister.co.uk/2008/04/11/billy_bragg/page2.html> at 17 April 2008

This interview with Billy Bragg follows on from his recent Op. Ed in the New York Times in which he discussed how artists should have been entitled to a proportion of the profits made from the sale of Bebo, a social networking site. He discusses how copyright laws are unable to keep up with technological developments but that there needs to be a principle established to ensure that artists are paid for providing content. Bragg suggests that much of the success of recent technology platforms such as MySpace and Imeem has been driven by music and that at the time these sites are set up artists agree to provide their works in exchange for free publicity, but then later when they are sold for extremely large amounts of money it is natural to question whether the artists have been given a good deal.

In acknowledging the challenges faced by artists in the digital environment he also notes the potential and the need to ensure that independent artists are able to support themselves from their craft and develop into professionals in their field. For artists to be able to do this there must be a system in place which enables them to record music and develop a community outside of their local area.

2. Future of Music Coalition interview with Peter Jenner current manager of Billy Bragg and Secretary General of the International Music Managers Forum
*** LANGUAGE WARNING***

Future of Music Coalition, Podcast Interview Series: Peter Jenner (23 April 2008)
<http://futureofmusiccoalition.blogspot.com/2008/04/podcast-interview-series-peter-jenner.html> at 28 April 2008

In this interview Peter Jenner discusses the original basis of copyright law - to provide incentives for artists - and how this has come under pressure in the digital age. He suggests that technology facilitates the making of music in new ways and in doing so creates an extension of our audible vocabulary. By having access to recorded music from around the world we are in fact gaining exposure to documented culture which becomes more comprehensible and familiar to us the more we are able to listen to it.

Jenner supports a compulsory licensing model for music on the internet. He suggests that whilst technology developers have a moral responsibility to ensure that new technologies enable a professional sector of artists to support themselves that the current problems in the industry are largely due to the major players trying to replicate the real space business models in the digital environment rather than adapt to it.

Jenner also raises the idea of an Artists Bill of Rights which is a proposal currently being explored in the UK. He suggests that the adoption of agreed standards with respect to artists’ rights is one way of addressing their current disadvantage. This would support the notion that artists should be entitled to retain the copyright in their creations and that those who seek to exploit the skills of an artist should be placed in an ‘artistic fiduciary relationship’ and therefore be accountable for making decisions that are in the best interests of the artists and their music, rather than just those that produce the best financial outcome.

He suggests that this is a very exciting time for music but to realise the true possibilities it is fundamental that artists be able to recover money for the expenses involved in writing and recording music and that greater attention be given to providing a career path for emerging and independent artists.

Self interest in network neutrality

John Perry Barlow’s Declaration of the Independence of Cyberspace (8 February 1996) was delivered at a time when users of the internet truly valued its openness and freedom:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you posses any methods of enforcement we have true reason to fear.

As the internet has grown in popularity and as its function has expanded, the need for increased regulation has become apparent. Ecommerce and the associated concerns with the security of financial information and the ability to distribute large media files are arguably two of the main factors creating pressure on the openness of the internet. Indeed it seems to be the case today that the very openness and freedom Barlow and others sought now depends on regulation.

Following the discovery that some ISPs are favouring certain types of traffic over others, questions have been raised as to what form of regulation, if any, would be most suitable to maintain network neutrality. Comcast is one company who has acknowledged imposing restrictions on the flow of data from the BitTorrent file sharing network. Recently they have announced an intention to develop a ‘File Sharing Bill of Rights’ with the Comcast chief technology officer Tom Werner stating that having such a framework will help P2P companies, ISPs and content owners find common ground to support consumers who want to use P2P applications to deliver legal content. This proposal seeks to establish a form of voluntary self regulation.

Self regulation typically occurs when governments allow industries to develop their own standard practices often providing in legislation for a government authority to approve and oversee their development. In Australia, self regulation of the internet occurs primarily through the Internet Industry Association. There a number of approved and draft codes of practice including the Spam Code, Content Code, Gambling Code, Privacy Code (Draft) and Cybercrime Code (Draft).

Like many, I am sceptical about whether this is the best form of regulation for an issue as important as network neutrality. Particular issues with the way this proposal seems to be developing include that it is only designed to address the sharing of ‘legal’ information. Given that all file sharing networks have some legal purpose this in itself suggests that the wider adoption of ISP based filtering or shaping may be a concurrent possibility. The appointment of members to the entity forming such a policy is also problematic with no independent allocation of places. Although there has been some suggestion of a representative from Free Press being appointed to the committee, the organisation which initially lobbied the FCC to investigate Comcast, it is unclear at this stage whether there will be an even representation of consumer advocates to commercial entities. Those most likely to be involved in the development of the code are those least interested in ensuring the network remains neutral. ISPs, major software developers and copyright holders all seek to benefit financially from being able to prioritise traffic at the expense of independent creators. The lack of oversight of the FCC in the development of the code may also be problematic as would be enforcement without official recognition by the government.

Other possibilities include the use of technology to ensure ISPs are not directing the flow of traffic. Peter Eckersley of EFF writes that there are a number of software packages available now and due to be released shortly which can be employed to ensure neutrality. Arguably this is still a form of self regulation as again there is no oversight or input from the government into the establishment, operation and enforcement of the regulation. While the software is developed by third parties there remains significant questions as to the input by the general public and the potential bias for ISPs and major media corporations.

Some suggest that the better approach is a legislative one with a Bill drafted in the United States. The Internet Freedom Preservation Act was developed in February 2008 and requires the:

Federal Communications Commission to assess whether broadband providers are "blocking, thwarting or unreasonably interfering" with consumers' rights to access, send, receive or offer content, applications and services over networks.[ msnbc/Associated Press, 'Net neutrality' bill introduced (13 February 2008) <http://www.msnbc.msn.com/id/23147101/> at 18 February 2008]

Others suggest that altering the network to such an extent would be extremely difficult and that no intervention by the government is required or that the best approach is simply increased competition in the broadband market.

This is a fundamental issue that should not be left to chance. Most likely a combination of all of these approaches is needed however self regulation, on its own, without a deliberate effort to consider consumers and independent creators seems the least neutral approach of all.

Further Reading
Wikipedia, A Declaration of the Independence of Cyberspace (1 March 2008)
<http://en.wikipedia.org/wiki/A_Declaration_of_the_Independence_of_Cyberspace > at 27 April 2008

Internet Industry Association <http://www.iia.net.au/> at 27 April 2008

The Register, Comcast proposes P2P 'bill of rights' (16 April 2008) <http://www.theregister.co.uk/2008/04/16/comcast_proposes_p2p_bill_of_rights/> at 26 April 2008

TechDirt,Changing The Internet's Architecture Isn't So Easy (24 April 2008)
<http://www.techdirt.com/articles/20080419/150606895.shtml> at 26 April 2008

TechDirt, But Why Do We Need A P2P Bill Of Rights In The First Place? (16 April 2008) <http://www.techdirt.com/articles/20080416/015107858.shtml> at 23 April 2008

Washington Post/The Associated Press, Comcast wants 'bill of rights' for file-sharers and ISPs (15 April 2008) <http://www.washingtonpost.com/wp-dyn/content/article/2008/04/15/AR2008041501993.html> at 17 April 2008

The Star, CRTC asked to stop Bell's 'throttling' (5 April 2008) <http://www.thestar.com/Business/article/410454> at 8 April 2008

TechDirt, BBC To ISPs: Don't Traffic Shape Me, Bro (4 April 2008) <http://www.techdirt.com/articles/20080403/151858743.shtml> at 7 April 2008

EFF Deeplinks, Comcast Reduces Discrimination, Plans To End It Altogether (28 March 2008) <http://www.eff.org/deeplinks/2008/03/comcast-reducing-discrimination-planning-end-it-altoghether-isp-testing-remains-es> at 30 March 2008

EFF Deeplinks, Software for Keeping ISPs Honest (28 March 2008) <http://www.eff.org/deeplinks/2008/03/keeping-isps-honest> at 30 March 2008

TechDirt, Comcast Realizes Blocking By Protocol Is A Problem; Asks BitTorrent For Some Help (27 March 2008) <http://www.techdirt.com/articles/20080327/094811665.shtml> at 30 March 2008

TechDirt, Surprise: Hollywood Favors Short-Term Fads to Long-Term Strategy (14 March 2008) <http://www.techdirt.com/articles/20080313/232935540.shtml> at 18 March 2008

P2PBlog, German cable ISP admits Bittorrent blocking (10 March 2008) <http://www.p2p-blog.com/item-539.html> at 11 March 2008

TechDirt, Censoring The 'Net Is Hard (5 March 2008) <http://www.techdirt.com/articles/20080304/143250431.shtml> at 7 March 2008

SiliconValley.com/Associated Press, N.Y. attorney general subpoenas Comcast on traffic throttling (26 February 2008) <http://www.siliconvalley.com/news/ci_8369162?nclick_check=1> at 29 February 2008

The Register, New York Subpoenas Comcast 'reasonable network management' records (27 February 2008) <http://www.theregister.co.uk/2008/02/27/andrew_cuomo_subpoenas_comcast/> at 28 February 2008

TechDirt, We Need A Broadband Competition Act, Not A Net Neutrality Act (26 February 2008) <http://www.techdirt.com/articles/20080225/135642351.shtml> at 28 February 2008

CNet News Blog, Net pioneers trash Comcast's P2P traffic treatment (25 February 2008) <http://www.news.com/8301-10784_3-9878841-7.html?tag=nefd.top> at 26 February 2008

The New York Times, FCC to Act on Delaying of Broadband Traffic (25 February 2008) <http://www.nytimes.com/2008/02/25/technology/25cnd-fcc.html?_r=2&ex=1361682000&en=400675c21d9dc50b&ei=5088&partner=rssnyt&emc=rss&pagewanted=all&oref=slogin&oref=slogin> at 28 February 2008

FreedomToTinker, Comcast’s Disappointing Defense (18 February 2008) <http://www.freedom-to-tinker.com/?p=1256> at 22 February 2008

TechDirt, As Expected, BitTorrent Providers Planning To Route Around Comcast Barrier (18 February 2008) <http://www.techdirt.com/articles/20080215/171450267.shtml> at 19 February 2008

Digital Music News, In a Jam, Comcast Defends Traffic-Throttling (13 February 2008) <http://www.digitalmusicnews.com/stories/021208comcast> at 19 February 2008

The Register, BitTorrent busts Comcast BitTorrent busting (19 February 2008) <http://www.theregister.co.uk/2008/02/19/bittorrent_developers_hit_back_at_comcast/> at 19 February 2008

msnbc/Associated Press, 'Net neutrality' bill introduced (13 February 2008) <http://www.msnbc.msn.com/id/23147101/> at 18 February 2008

The Public Choice Model of Webcasting

I posted recently on the relationship between modern corporations law, copyright law, record labels, the production and reception of music and the flow on effects for free speech and democracy. Further to this I wish to point out a recent Digital Music News article which explains that the RIAA paid $2.8 million in Congressional lobbying fees last year with $2.1 million of this being spent in the second half of the year:

[F]or recording royalties from terrestrial broadcasters, various anti-piracy initiatives, and issues tied to internet-based radio royalties.

This is a classic example of the manifestation of public choice theory with the record labels and the royalty collection agency Sound Exchange, acting as ‘egotistical rational utility maximisers’ – which means simply that they are acting in their own best interest without concern for the wider impact of their activities. In this instance it is independent artists and the public, the people most deserving of consideration in the decision making process, that are disadvantaged by being unable to meet the financial investments made to facilitate the decision making process.

One example given above of the use of financial donations to lobby for stronger laws is that of internet-based radio royalties. This issue was heavily debated throughout last year in the United States, with the Copyright Royalty Board dramatically increasing the royalty rates for webcasters for the period (in part retrospectively) January 1^st 2006 to 31^st December 2010. The nature of the increase and the fact that it applied to a prior period of operation was considered excessive and detrimental to many small webcasters.

As pointed out recently by ArsTechnica, the way the royalties are formulated in itself aims to support existing business models. If a webcasters were simply able to pay a percentage of profits rather than a fee per individual track, there would be far less complication and a far greater chance of them staying in business. Sound Exchange lobbied for a per track fee (which is what they received in the end) or 30% of the profits of webcasters. While there was some effort to secure a percentage based royalty system, arguably the sincerity of this intention is questionable - satellite radio stations only pay around 7% of profits.

The majority of music played on internet radio stations is from independent artists so many suggested that the ploy to lobby for higher royalties by major labels (through the royalty collection agency Sound Exchange) was in fact an attempt to shut down (or at least seriously limit) the number of webcasters and the avenues for non mainstream artists to reach their audience. In the end there was some further negotiation and a compromise reached in recognition of the damaging impact on the webcasting industry but these events nonetheless demonstrate how unbalanced pluralism or ‘corporate dictatorship’ favours existing players over emerging technologies.

Articles
Digital Music News, Inside the Beltway, RIAA Charges $2.8 Million... (18 April 2008) <http://www.digitalmusicnews.com/stories/041708riaa> at 26 April 2008

Wikipedia, Public Choice Theory (14 April 2008)
<http://en.wikipedia.org/wiki/Public_choice_theory> at 26 April 2008

Copyright Royalty Board "Digital Performance Right in Sound Recordings and Ephemeral Recordings; Final Rule" (37 CFR Part 380) (PDF) (1 May 2007) <http://www.loc.gov/crb/fedreg/2007/72fr24084.pdf> at 27 April 2008

Wired Listening Post, Copyright Royalty Board Sets New Rates for Satellite Radio (4 December 2007) <http://blog.wired.com/music/2007/12/copyright-royal.html > at 27 April 2008

ArsTechnica, RIAA tells Ars: We're not hypocrites (11 March 2008) <http://arstechnica.com/news.ars/post/20080311-riaa-tells-ars-were-not-hypocrites.html> at 18 March 2008

ArsTechnica, RIAA plays both sides of the street in music royalty debate (2 March 2008) <http://arstechnica.com/news.ars/post/20080302-riaa-wants-to-pay-percentage-rate-it-denied-to-webcasters.html> at 4 March 2008

WashingtonPost, Web Radio Seeks Resolution (24 October 2007) <http://www.washingtonpost.com/wp-dyn/content/article/2007/10/23/AR2007102302123.html> at 31 October 2007

Digital Music News, Smaller Broadcasters Blast SoundExchange Proposals (19 September 2007) <http://www.digitalmusicnews.com/stories/091907small> at 24 September 2007

ZeroPaid, RIAA War With Webcasters Really a War on Indie Artists and Labels? (30 July 2007) <http://www.zeropaid.com/news/8937/RIAA+War+With+Webcasters+Really+a+War+on+Indie+Artists+and+Labels%3F>at 6 August 2007

TechDirt, Why Does The RIAA Hate Webcasters? Webcasters Don't Play Very Much RIAA Music (30 July 2007) <http://www.techdirt.com/articles/20070726/181155.shtml> at 6 August 2007

Digital Music News, The Internet Radio Royalty Debate: Frequently Asked Questions (15 July 2007) <http://www.digitalmusicnews.com/stories/071507ten> at 22 July 2007

TechDirt, New Webcast Royalty Rules Will Line SoundExchange's Pockets With Billions In 'Administrative Fees' (7 June 2007) <http://www.techdirt.com/articles/20070607/092053.shtml> at 16 June 2007

There are a further 32 links to articles on this topic available on my associated weblog, Open Content Australia, listed each month under ‘webcasting’: http://www.ocaustralia.blogspot.com/

From Little Things Big Things Grow

I heard this song on the radio the other day and was delighted to receive an email from Get Up recently about it. For those not familiar with Australian history, there was a time when Australia implemented a policy of forced removal of Aboriginal children from their families. The impacts of these policies continue to be felt today with many having lost all contact with their families and culture. At the start of the parliamentary sittings this year, after many years of lobbying, the Federal Government made an official apology for taking what has come to be known as ‘The Stolen Generation’.

Get Up is a non profit grass roots internet based political lobbying group (similar in some ways to Move On). Their new campaign is called MakeThisAHit. Purchasing the song From Little Things Big Things Grow for $1.69 (no DRM restrictions) will help support the reconciliation movement.

Further Reading
Get Up <http://www.getup.org.au/> at 23 April 2008

Get Up, Make This A Hit <http://www.getup.org.au/campaign/MakeThisAHit&id=329>at 26 April 2008

MoveOn <http://www.moveon.org/> at 26 April 2008

Wikipedia, Stolen Generations (23 April 2008) <http://en.wikipedia.org/wiki/Stolen_Generation> at 26 April 2008

The movement in digital music

Neil Netanel in his paper ‘Copyright and a Democratic Civil Society’, characterises the three main philosophical positions to copyright law- neoclassicism, minimalism and democratic theory.

Neoclassical copyright theory seeks to maximise control over the use of works and produce maximum profits. Arguments against this form of copyright regulation tend to look to the purpose of copyright law in providing a mechanism for social progress and democracy which requires a more flexible approach for the public access of works. Arguably this is the form of copyright regulation currently employed in countries such as the United States and Australia. It encourages monopoly control and dominance by major record labels and requires litigation to support a business model that is the dominant consideration rather than the quality of culture produced.

Minimalism (or Utopian copyright theory) on the other hand refers to the philosophical position in which artists are given little property rights to their works but rather much greater freedom is afforded to the public to use works without compensation. Perhaps best illustrated by much of the activity currently underway on file sharing networks, such a position fails to provide the mechanism for a reasonable return of funds to artists and therefore fails to support a democratic and civil society. Artists capable of the best expression are not adequately rewarded for their creativity lowering both the standard and frequency of cultural production.

Democratic theory is the central position between these two and Netanel characterises this as the optimum environment for creativity and democracy. Artists enjoy reasonable returns for their creativity whilst ensuring adequate access by the public, therefore maximising the opportunities for the educative powers of culture and the ability for citizens to be aware of and participate in politics. The collective licensing mechanism proposed for file sharing networks is one such example of a form of copyright regulation which seeks to enhance access and provide reasonable support for artists.

In the past the digital music environment could be seen as something of a conflict of extremes – record labels and major media corporations have taken a strictly neoclassicist approach, file sharers and file sharing software developers adopted a minimalist approach with independent artists left to struggle to match the conditions of both of these.

In more recent times however steps, albeit small ones, have been taken to move more toward the centre. The decision by the labels to remove DRM from CDs and to an increasing degree digital files, the development of new business models by independent artists demonstrating their ability to create some opportunities for themselves in a far less regulated environment as well as the increasing discussion relating to the collective licensing mechanisms are all factors indicating the shifting sentiments of the participants in the digital music environment. This all seems encouraging from the perspective of artists and the public until one then refers to the overlapping attention currently being directed to internet wide filtering of copyright material and the increasing pressure on ISPs to take a greater role in policing and enforcing activities on their networks.

In these changing times it can be difficult to say with absolute certainty that the extreme positions of the past remain but it is far from certain that the industry as a whole is moving directly to a democratic paradigm. Small steps in multiple but conflicting directions indicate that the environment is far from settled.

Further Reading
Neil Netanel, Copyright and a Democratic Civil Society, 106 Yale Law Journal 283 (1996)
<http://www.history.ox.ac.uk/ecohist/readings/ip/netanel.htm> at 22 April 2008

Digital Music News, MP3 Fever Spreads: Tesco Latest to Dump DRM (16 April 2008) <http://www.digitalmusicnews.com/stories/041508tesco> at 17 April 2008

TechDirt, Wal-Mart Ditches DRM... And Lots Of Major Label Music With It (8 April 2008) <http://www.techdirt.com/articles/20080408/003857784.shtml> at 13 April 2008

Digital Music News, Wal-Mart Reaffirms Commitment to MP3s; Standoff Continues (7 April 2008) <http://www.digitalmusicnews.com/stories/040608walmart> at 8 April 2008

Digital Music News, The DRM-Free Drag... Why a Broader Rollout Remains Elusive (2 April 2008) <http://www.digitalmusicnews.com/stories/040208drm/> at 8 April 2008

Digital Music News, Marvelous Result: Reznor Disciple Finds $300,000 (14 April 2008) <http://www.digitalmusicnews.com/stories/041308niggy> at 17 April 2008

TechDirt, Another 'Free' Business Model Experiment (28 March 2008)<http://www.techdirt.com/articles/20080321/183748624.shtml> at 30 March 2008

ChicagoTribune, Music biz looks at giving fans all the songs they want in exchange for broadband access fee (20 March 2008) <http://leisureblogs.chicagotribune.com/turn_it_up/2008/03/the-latest-plan.html> at 27 March 2008

Digital Music News, Dolly Goes DIY: Parton Self-Financing Offers Latest Case Study (24 March 2008) <http://www.digitalmusicnews.com/stories/032308dolly> at 26 March 2008

The Technium, 1,000 True Fans (4 March 2008) <http://www.kk.org/thetechnium/archives/2008/03/1000_true_fans.php> at 23 March 2008

Apologies

Apologies for the recent unavailability of this site.

Kids Stuff

I have often considered that the resolution to the conflict in the digital music environment was nothing short of kids stuff. The introduction of a collective licensing scheme is such an obvious move that it bewilders me no end that the major labels will not turn to it. More recently I came to view this necessity from a different point of view.

As a mother of a young child I am very aware of the influence of the media and take steps to limit my child’s exposure to television, am very selective about the DVDs that I will allow her to borrow and have been quite concerned about the messages mainstream music offers. While I listen to an alternative radio station she nonetheless is exposed to this form of music through other avenues including her friends at school. In an attempt to overcome this I have been taking deliberate steps to ensure that she is at least aware of a range of music and that some of it can have valuable meaning.

For some time we have borrowed CDs from our local library, I have purchased some from eBay as well as buying what I consider to be age appropriate, positive, music. Having said that though, it was purely for personal gratification that I subscribed to eMusic. Whilst having purchased a couple of tracks from iTunes and explored the music licensed under creative commons on Limewire I was looking for a digital service with a range of alternative music titles, no DRM and which were offered at a reasonable price. For the first few days this was my central concern, I spent quite a bit of time searching and downloading the music I like but somewhere around the third day I made what I consider to be one of the best discoveries of my life – the children’s music! (Listed under Soundtracks/other for those wishing to browse the eMusic site.)

Needless to say I spent the next week looking through some 75 pages of CD titles and exclaiming about the brilliance of such a selection. Prior to subscribing we had been quite attached to some CDs from the library which I refer to as the ‘Classical Kids’ collection. These CDs take the music of a famous composer and combine it with a story line, sometimes related to the music itself but often purely fictional. I discovered the importance of the collection instantly when my daughter told me that a Tchaikovsky song was from a Barbie movie. Much to my delight the whole ‘Classical Kids’ collection is available on eMusic and since then I have used my monthly downloads to start to collect the whole set. I find these CDs particularly beneficial and have commented a number of times to people that it is a form of fun education. If you were to sit a child down and play them Beethoven for an hour they would most likely be fidgeting after five minutes, but these CDs provide an opportunity to expose children to this form of culture without forcing it on them.

Other albums that we will most certainly be downloading in the future include music relating to environmental issues, maths songs (times tables), music from other cultures and other high quality children’s recordings. The thing that strikes me most is how impoverished our lives had been without this. When we think of music and the file sharing war we typically consider teenagers and college students and how having access to such as range of music can empower and educate them but in truth this is a narrow selection of the public. We should not forget the importance of music to the lives of all people regardless of their age and focus on how we can all benefit from an open licensing model.

Perhaps living in a regional environment is one factor, with far less opportunity to explore diverse cultural programs for children. One such program is run by Arts Queensland with similar programs in all capital cities. In more isolated communities however these opportunities for children simply do not exist. This in one way reflects the isolation of children on the internet as they are similarly unable to access the culture that will enhance their lives.

In her book Songs in Their Heads: Music and Its Meaning in Children's Lives Patricia Shehan writes:

Children think aloud through music.... Music may be the treasure children prize for their own personal pleasure, and a tool for their use in understanding the world in which they live. Music may be their own expansive and expressive thinking at work, a means through which to develop thoughtful reflections of their experi­ences

Perhaps I notice it more than others as I live in a regional area with far less concerts and other cultural activities targeted directly at children. Aside from one or two shows a year and some limited concerts she attends through her school there is nothing along the lines of the orchestra programs offered in major cities. One such program is that of Arts Queensland.

I have often commented on the importance of music in my life as a child. Music is not only a form of self expression but when children learn to read music they learn to recognise sentences (phrases) and the ability to illustrate with certain expressions (motives). Music is also mathematical and in learning theory children learn to add and subtract, particularly fractions (intervals) as well as counting in terms of beats.

Maximising the access and exposure of children to music of all types is an education that should not be denied.

Further Reading

Patricia Shehan, Songs in Their Heads: Music and Its Meaning in Children's Lives (1998) http://www.questia.com/PM.qst?a=o&d=78831329

Glastonbury, the commons and expression: Part 2

This is the second part of an earlier post on the Glastonbury music festival.

Free v free
The financial costs of putting on the concert appear to have increased dramatically over time since the start of the festival. The need to ensure the concert organisers recovered the associated costs is not dwelt on for long but is nonetheless an aspect of the film. In contrast there was some attention given to the number of people seeking to enter without paying.

The free culture and open source software movement recognise a distinction between the concepts of freedom of speech and not having to pay for goods/services. The above aspects of the film could be seen as an analogy to this with those seeking entrance really best characterised as wishing to have access to the free speech of others and to explore their own self expression. On the other hand the organisers could be seen to be more concerned with the price that these people should have paid to enter and the way the lack of these contributions impact on their ability to provide the best experience for all.

The effectiveness of artificial barriers
Related to the consistent breaches of the perimeter fence is the idea of artificial barriers. In this instance the (sub) commons in question was tangible property but the evolution of the fence from being non existent to being a permanent wall with a moat in the middle policed by security on horses and there being a second fence after that, could be contrasted to the arms race of digital rights management in cyberspace. For the festival organisers there appears to be some satisfaction with the solution now in place and comments to the effect that the social norms of attendees appear to have changed with far fewer seeking to enter for free.

In the digital environment the experience of artificial fences has been quite different. For quite some time there was a mainstream adoption of DRM for both CDs and digital music files. In more recent times however DRM has been dropped completely for CDs and to an ever increasing extent for digital files. There were two main reasons for the decline in popularity of digital locks. The first and most obvious was that they were expensive to maintain and largely ineffective. Despite lobbying for and receiving favourable legislative conditions the measures was ineffective. The second reason for their abandonment and largely related to the first, was the impact of social norms. Here the public, for the most part, did not respect the property rights of the record labels readily circumventing the protections. This was partly due to a perception that the restrictions were unwarranted and because there were direct conflicts with legitimate rights. In addition to this there were privacy issues highlighted by the use of a rootkit by Sony in which the digital locks also reported back user data without consent or notification. Whilst DRM remains in place for much of the major labels digital repertoire there is an increasing trend away from its deployment, at least for the sale of individual tracks.

Free speech and the need to support political forums
Another very interesting aspect of this film for me was the specific allocation of space to provide a political forum, known as the Left Field Stage:

The Left Field is a travelling stage and bar which forms part of a number of British festivals... The Left Field was first designed to tackle apathy and promote left-wing politics and trade unionism in young festival goers at the Glastonbury Festival in 2000, and has since trebled in size and is now a regular fixture at Guilfest, Homelands and Glastonbury festivals, and in 2005 at the Edinburgh Fringe.

The Left Field features left-wing musicians, such as perennial Billy Bragg and Asian Dub Foundation, political comedians such as Mark Thomas and commentators including Tony Benn, with a number of speeches and debates taking place at each festival. The Left Field also runs many films, for example exposing the violence in Colombia. The Left Field also promotes campaigns and charities, such as No Sweat and War on Want. [Wikipedia, The Left Field (14 June 2007) <http://en.wikipedia.org/wiki/The_Left_Field> at 18 April 2008]

On one level this is similar to the need to preserve free speech in cyberspace. Unless specific steps are taken to deliberately provide forums in which artists with political motivations can address the public, there is an increasing likelihood that this speech will not have a stage on which to be given or be accessible to others.

Fear as a motivation to develop closed spaces
The Glastonbury festival initially had strong historical roots with the subculture of the New Age Travellers http://en.wikipedia.org/wiki/New_Age_travelers . This group of people moved together in somewhat of a convoy between music festivals in the United Kingdom living an alternative lifestyle. In 1990 there was a riot at the Glastonbury festival which was largely attributed to members of this group, leading their expulsion and much greater security in following years.

Jonathan Zittrain writes of something similar in his article The Generative Internet in which he describes the potential for fear to compel software architects, corporations and the public to abandon the openness of the internet in exchange for closed but arguably more secure environments. Some of the negative implications of this are a loss of innovation and freedom of movement and association.

Similarly here the loss of the travellers to the festival was seen in some ways as a negative implication as they had contributed much in the way of vibrancy and diversity.

Collective action v Civil disobedience
In two parts of the film the travellers were seen to come into direct conflict with the festival organiser. In the first and apparently earlier incident there was a dispute over the rate of pay they were given for work over the course of the festival. The resolution of this dispute was largely achieved by collective action with a group taking positive steps to negotiate a small additional payment.

In contrast, following the decision to ban the travellers after the 1990 riot discussed above, the travellers sought to interfere with others that wanted to attend the festival by blocking access roads to the site. Whilst this could be seen as a form of civil disobedience it was not effective in achieving their goals nor in assisting them to gain access to the festival.

From this perspective one may well compare the lack of success of file sharers in the ongoing dispute over the sharing of copyright material. Here individuals acting in their private homes break the law without having taken the necessary steps to form a collective voice and to lobby in more practical and lawful ways for changes to the law. What can be seen to have resulted from this is their ongoing vulnerability, a failure to be taken seriously and to achieve their goals; instead providing further reasons for content owners to seek and receive stronger copyright laws.

The manifestation of regulation
Regulation of cyberspace has been illustrated and discussed in the text Free Culture: How Big Media Uses Technology and the Law to Lockdown Culture and Control Creativity by Lawrence Lessig. Here Lessig describes the manifestation of regulation in four forms – architecture, law, economics and social norms.

Regulation of digital culture takes place by the design and structure of the digital environment. Typically described as a dichotomy of open and closed architectures, but more accurately a range existing between these polarities, architecture in cyberspace is a fundamental determinate of the ability for people to explore and express themselves.

Law, generally seen to support those seeking closed rather than open digital architectures, regulates through the threat of punishment. Economics, generally seen to drive the desire for stronger laws supporting closed architectures, is a form of regulation which stems from the profit motive particularly of large corporations. Social norms, being the fourth regulator, refer to the perceptions of acceptable behaviour and consequences for acting contrary to these established expectations.

As discussed already, prior to the establishment of the festival the town could be best described as a commons and therefore illustrative of an open architecture. Subsequently however, the organisers of the Glastonbury festival enclosed the area, in effect creating a form of closed architecture.

One of the driving factors for this was the requirements of the local council to provide adequate faculties in proportion to the number of festival goers. Without such a fence there was no way for the organisers to stem the influx of members of the public, demonstrating how law can be used to support the existence of closed environments. Regulation by law is also evident in the searching of cars and festival goers for drugs. The police were active outside the festival with the festival organisers also confiscating signs advertising the availability of drugs.

The desire to ensure that expenses of the festival were met by ticket sales, was an economic factor supporting the existence of the wall around the festival grounds from the perspective of the organisers. Arguably this was also a compelling factor in the decision to attempt to reduce the availability of drugs, with a possibility that the festival might be closed down altogether, negative publicity if there were loss of life as well as potential personal criminal and negligence liability.

In discussing the conflict between mainstream and independent culture above, one may also see a manifestation of regulation by social norms. The local behavioural expectations of the residents of the local community differed directly to those in attendance. The decision of local business not to serve festival goers is but an example of the use of social norms to regulate expression.

Articles/Links:
The Left Field Coop, 2005. "Left Field at the Fringe." In Wikipedia, The Left Field (14 June 2007) <http://en.wikipedia.org/wiki/The_Left_Field> at 18 April 2008

Wikipedia, New Age travelers (24 February 2008) <http://en.wikipedia.org/wiki/New_Age_travelers> at 19 April 2008

Zittrain, Jonathan, "The Generative Internet". Harvard Law Review, Vol. 119, p. 1974, May 2006 Available at SSRN: http://ssrn.com/abstract=847124

Zittrain, Jonathan, The Future of the Internet and How to Stop It (2008) <http://www.amazon.com/Future-Internet-How-Stop/dp/0300124872/ref=pd_bbs_sr_1?ie=UTF8&s=books&qid=1208528442&sr=8-1> at 19 April 2008

Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lockdown Culture and Control Creativity (2004) <http://www.amazon.com/Free-Culture-Technology-Control-Creativity/dp/1594200068/ref=sr_1_7?ie=UTF8&s=books&qid=1208530975&sr=1-7 > at 19 April 2008

Glastonbury, the commons and expression: Part 1

Last night I watched the DVD, Glastonbury: The Mud. The Music. The Madness, which provides an historical perspective to the Glastonbury music festival.

To begin with I found the film to be purely entertaining but around half way through I began to identify a number of parallels between the historical events and conditions of the festival and many of those experienced by music, artists and the public in the digital environment. All analogies break down on examination but if you care to take a step back for a minute, often the easiest way to understand a situation and to resolve problems is by finding something that is similar and making comparisons as to how issues were resolved in that context. Some aspects of this provided such an opportunity with others serving to contrast the difference between tangibles and intangibles. I would like to discuss some of the highlights of the film as a metaphor for issues we can see presently in the regulation of music in cyberspace. In doing so I should acknowledge that this post will not provide a description of the film so those that are interested should try to see it themselves.

The benefits and limitations of open spaces
What immediately struck me about the region in which this festival was held was that it could be seen as an analogy for the intellectual commons. The festival began with no formal boundaries but rather was located in an open space with the pre-existing contours of the land acting to facilitate the logistics of coordinating and accommodating festival goers. Over a period of time, with ever increasing numbers attending, an increase in the financial expenditure to run the event and conflicts with members of the public, the organisers sought to enclose an area of the commons for the private interests of those that attended.

In the terms of Peter Drahos this would amount to an exclusive, negative community. This characterisations includes the notions that a limited number of people enjoy the rights to deal with the resources (exclusive) and those outside the arrangements must negotiate for access (negative); in turn this means that there are those that do not immediately have access and will not be entitled to enjoy the resources of the commons (or in this case that specific area of the region).

A further obvious issue with the festival operating in an open space is the notion of risk. In many years the weather has interrupted and caused problems for the festival. In particular, the flooding of large areas of the property resulted in both poor conditions for those in attendance as well as impacting on the numbers attending in following years.

In cyberspace whilst there is an essential and vital need for openness it is reasonable to suggest that this comes with some associated risks. Some would suggest that this risk compels the closing of the space to provide assurance and security for those seeking to use the digital environment. However this position fails to address the far greater need to ensure freedom of innovation, free speech, free culture and democracy. The better course of action is undoubtedly to teach the public about the risks, to provide them with the means to either avoid or overcome their impact and to retain the many essential positive aspects of an open environment. For the festival this was achieved by some alteration to the drainage system and most likely an increase in public awareness has resulted in those attending being more prepared for the possibility of poor weather rather than not attending at all.

The conflict and contrast between main stream and alternative culture
The Glastonbury festival is easily characterised as an alternative music festival with many festival-goers dressing in costumes or colourful clothing and an acceptance of those who choose to go naked. There is also a reasonable level of drug use, a lot of alternative music, support for left wing political views and charitable organisations that work towards issues of this nature, alternative forms of entertainment and many other factors that contribute to this characterisation.

In contrast the film shows many of the local residents expressing resistance to the festival. Some shops had signs up to the effect that they would not serve festival goers, with others openly confronting attendees and suggesting that as the festival was not within the culture of the towns’ residents that they had become a minority in their own environment. They also expressed concern at the environmental impact on the natural resources. In one year festival goers also marched through the town protesting heavy and invasive policing practices which further reflect mainstream culture.

A similar level of conflict is apparent in cyberspace with the threat of lawsuits against peer to peer software developers, operators and users, being one form of regulation designed to reinforce the pre-existing culture, namely major record label artists. The impact of this is to reduce the availability of alternative distribution methods for independent artists seeking to gain greater exposure to the public. Organisations such as Creative Commons, Electronic Frontiers Foundation and the Future of Music Coalition all work in some ways to support the continuance of these architectures for the benefit of independent artists and the public. This could be seen as a parallel to the street march and an expression of the need to maintain diversity.

The tragedy of the commons
Hardin’s theory of the tragedy of the commons is something more specific to tangible property and relates to the idea that there are too many people allowed to use the resources of the commons. Whilst not specifically relevant to intangibles, which of course are infinite goods that cannot be exhausted, the notion was nonetheless apparent within this film. Here there were two commons that can be identified as being over used. The first of these was the natural resources of the region particularly the waterways that went through the property and on to other people’s land. Residents complained of the pollution of these by festival goers as many used these instead of the allocated toilets and did not dispose of their garbage properly. One scene in the film shows a man protesting about the number of toilets made available to the attendees and discussion is directed to the license conditions of the festivals organisers and the need for people to use the facilities provided.

The second was the sub commons that was created by fencing off of the section of land for the festival. Despite constant attempts to improve the security (CCTV) and fencing to prevent others from entering the festival without paying, repeatedly the numbers of festival goers appear to have been beyond that desired and catered for by the organisers. In 2000 a significant part of the fence collapsed and around 300,000 people ended up having access to the festival.

Articles/Links:
Wikipedia, Glastonbury Festival (16 April 2008)
<http://en.wikipedia.org/wiki/Glastonbury_Festival> at 17 April 2008

Wikipedia, Glastonbury (14 September 2007)
<http://en.wikipedia.org/wiki/Glastonbury_%28film%29 > at 18 April 2008

Wikipedia, The Left Field (14 June 2007) <http://en.wikipedia.org/wiki/The_Left_Field> at 18 April 2008

Peter Drahos, A Philosophy of Intellectual Property (1996)
<http://www.amazon.com/Philosophy-Intellectual-Property-Applied-Legal/dp/1855212404/ref=sr_1_2?ie=UTF8&s=books&qid=1208533734&sr=1-2>

Creative Commons
<http://creativecommons.org/> at 19 April 2008

Electronic Frontiers Foundation
<http://www.eff.org/> at 19 April 2008

Future of Music Coalition
<http://www.futureofmusic.org/> at 19 April 2008

Museums, The Public Domain and Profits

Further to my recent post on the public domain in which I highlighted the decision of the Power House Museum in Sydney to release the Tyrrell photographs in digital form through Flickr: The Commons, earlier today I read this very interesting article by Michael Geist in the Ottawa Citizen, titled ‘National Gallery looking for profits in all the wrong places’.

Most interestingly he notes:

[T]he McCord Museum of Canadian History in Montreal has poured significant resources into digitization, amassing more than 135,000 digital images that are freely accessible online. Similarly, the Canadian Museum of Civilization (which includes that museum and the Canadian War Museum) attracted a record 1.8 million visitors in 2006, but more impressively hit 66 million page views for its web-based content.

He goes on to discuss how museums are seeking to engage citizens in the digital environment through the use of things such as virtual museums, social networking and blogs. However it seems that not all uses of public domain works by museums are being offered on a non-profit basis. Geist refers to The National Gallery of Canada which is reported to have charged for the reproduction of some 250 public domain works in 2006:

The Access to Information Act records covered requests to the NGC for copies of public domain artworks between February 2006 and January 2007. The NGC received approximately 250 such requests, for which it imposed contractual restrictions on use of the images and levied an average fee of $379. While requesters were not advised of the cost breakdown, internal documents reveal that some of the price went to an administrative fee (typically $20) and a photographic fee.

Disturbingly, not only did the Gallery attach license conditions limiting the use of the reproductions but the costs levied included a permission charge higher than for works subject to copyright. This was justified on the grounds that as the works were not subject to copyright and no royalties would have to be paid, an increase in the cost levied by the gallery would be reasonable.

This comes in the same week as a story about the Metropolitan Museum of Art in New York City. Here the public were prevented from taking photographs of a Nicholas Poussin exhibition, who died in 1655. Usually the museum allows photographs provided no flash is used. When questioned about the restrictions in place for this exhibition, representatives of the museum suggested initially that this was due to copyright. Of course this is incorrect because the works are clearly within the public domain. Excess Copyright reports that the works were loaned to the museum and the restriction may have been a contractual condition imposed on their display.

These examples illustrate the use of contract law in a way which impedes access to public domain works. In establishing the copyright bargain, the United States Constitution specifically states that the copyright term shall be for a limited time. In doing so the law reflects the desire to limit the monopoly power conferred to copyright holders and to provide for full access to works on the expiration of the copyright term. Without a robust and diverse public domain, future creativity, free speech and democracy are undermined.

It is increasingly apparent that steps need to be taken to ensure that private interests cannot deprive the public of their rightful access to these works. Simply put there needs to be greater awareness of how these works are being dealt with, the ability to challenge any limitations which are imposed on the public's right to access the works, and greater education as to the vital importance to society of the public domain.

In short, it defies logic that private owners should continue to own and control works that are within the public domain.

Articles

Ottawa Citizen, National Gallery looking for profits in all the wrong places (15 April 2008) <http://www.canada.com/ottawacitizen/news/bustech/story.html?id=eea40d92-2682-458f-81ab-4926a2ae1283> at 17 April 2008

The McCord Museum of Canadian History in Montreal <http://www.mccord-museum.qc.ca/en/> at 17 April 2008

The Canadian Museum of Civilization <http://www.civilization.ca/visit/indexe.aspx> at 17 April 2008

The National Gallery of Canada <http://www.gallery.ca/> at 17 April 2008

TechDirt, Since When Has Copyright Become Life Plus 343 Years? (14 April 2008)<http://www.techdirt.com/articles/20080402/013157727.shtml> at 17 April 2008

Excess Copyright, Life + 343 years (1 April 2008) <http://excesscopyright.blogspot.com/2008/04/life-343-years.html> at 17 April 2008

The Metropolitan Museum of Art in New York City <http://www.metmuseum.org/> at 17 April
Lawrence Lessig, Free Culture (2004) <http://www.amazon.com/Free-Culture-Technology-Control-Creativity/dp/1594200068/ref=pd_bbs_sr_3?ie=UTF8&s=books&qid=1208401055&sr=8-3> at 17 April 2008

Copyright Law and New Media

Updated. I was reading today about the New Media Artists and the Law panel due to be held in San Jose, CA this Friday (more here) and I was interested to discover that the discussion will centre around “the ways copyright laws are implicated in new media art and the challenges artists face in this evolving area of the law.”

The term ‘new media art’ refers to:

[A]n art genre that encompasses artworks created with new media technologies, including computer graphics, computer animation, the Internet, interactive technologies, robotics, and biotechnologies. The term differentiates itself by its resulting cultural objects, which can be seen in opposition to those deriving from old media arts (i.e. traditional painting, sculpture, etc.) This concern with medium is a key feature of much contemporary art and indeed many art schools now offer a major in "New Genres" or "New Media." New Media concerns are often derived from the telecommunications, mass media and digital modes of delivery the artworks involve, with practices ranging from conceptual to virtual art, performance to installation. [Wikipedia, New Media Art (5 April 2008) <http://en.wikipedia.org/wiki/New_media_art> at 15 April 2008]

The implications of copyright law in new media art
There is no doubt that copyright law in its present state produces significant ramifications for the production and reception of new media art. In recent years there have been significant changes to the length of copyright protection and the scope of works to which it applies. These implications occur both with respect to the art itself and the technologies that are used to create it. The United States and Australia serve as illustrative examples of a trend that is increasingly occurring around the world.

The length of copyright protection has been significantly increased in recent years. The most recent of these in the United States was the 1998 Sonny Bono Copyright Term Extension Act which extended the period of protection for both existing and future works from 50 years plus the life of the author to 70 years plus the life of the author. Similarly, the same extension was made in Australia, although in this instance not made retrospective, through negotiations with the United States for the 2004 US-AU Free Trade Agreement .

The length of copyright protection holds many negative implications for new media art. In particular the impact and constriction of the public domain inhibits the ability for creators to draw on existing works and to reuse these in new ways.

The scope of copyright protection has also increased dramatically in recent times. In the United States the 1996 Digital Millennium Copyright Act, in particular, enacted laws which seek to support the use and development of digital rights management technologies. In Australia similar provisions were also introduced through a series of copyright amendment bills, the most recent of which was the Copyright Amendment Act 2006 (Cth).

Digital rights management technologies are the software and hardware products which code locks around digital expression in order to limit the uses and portability of protected works. The implications for new media art include eroding the ability for creators and the public to exercise fair use/fair dealing rights. These rights, whilst enacted to enable such things as non commercial transformations, personal, and educational uses, are subverted by the use of digital rights management.

The scope of copyright law has also been amended to extend to the vast majority of non commercial uses. Non commercial uses particularly relevant to new media art include sampling and remixing of works. The associated implications are an inability to explore and create derivative works.

The impact on the development of technology is also apparent. Copyright law has been used to impede the existence and adoption of new distribution networks. By inhibiting the dissemination of new media art, the illustrative, educative and communicative potential of the genre is limited. This in turn impacts on social progress and democracy.

The challenges artists face
Artists face numerous difficult challenges stemming from the present state of copyright law. These include a failure to realise the technical environment which will enable all citizens to actively participate and contribute, communicate with others and to develop business models which enable independent artists to support themselves.

Digital technologies offer a unique opportunity for the average citizen to become creators. Copyright law, in seeking to protect existing interest, inhibits the development of technology which would enable this to be fully realised. Furthermore, copyright law complicates the creative process for those seeking to reuse existing works by establishing an environment which requires lengthy and expensive negotiations for licenses with no guarantee that permission will be forthcoming. This is also the case for the creators of new media works who themselves are subject to the automatic protection of copyright and must take additional steps to allow their own art to be reused.

The flow on effect of the expansion of copyright law and the term of protection similarly inhibits the ability for new media artists to communicate with members of the public. This in turn restricts the activities and education of civil society which therefore impedes their ability to participate in democracy.

In seeking to support pre-existing forms of expression copyright law also restricts the ability for new media art forms to develop business models which would enable them to support themselves. If creators of new art forms are unable to support themselves from their craft this acts as an impediment to attracting those capable of the highest quality of expression.

Conclusion
The implications of copyright law with respect to the production and reception of new media art are apparent. As a consequence of this artists seeking to explore this genre face numerous impediments.

Further Reading
Lawrence Lessig, Free Culture (2004) <http://www.amazon.com/Free-Culture-Technology-Control-Creativity/dp/1594200068/ref=pd_bbs_sr_7?ie=UTF8&s=books&qid=1208243594&sr=8-7> at 15 April 2008

European policy on ISP responsibility for copyright infringement

In recent weeks there has been increasing discussion regarding the desire for internet service providers to take steps to reduce breaches of copyright law. There are three ways in which major copyright holding corporations seek to involve internet service providers in the pursuit of those who fail to respect their property rights. These include the disclosure of users identities following private investigation of their internet use, a three strikes policy forcing the banning of users after a series of notifications of copyright infringement and an internet wide filtering policy.

Disclosure of users identities

Earlier this year the European Court of Justice ruled that the European Community does not have to disclose the identities of those in breach of copyright law unless a country's national law requires such a disclosure.

The EFF reported: The decision in Promusicae v. Telefonica involved a request made by a Spanish music rightsholder association (Promusicae) to Spain's leading ISP (Telefonica) for personal data about Telefonica subscribers using particular dynamic IP addresses, which Promusicae alleged were engaged in filesharing.

The decision upheld the importance of privacy protections preventing the disclosure of users identities where infringement does not incur a criminal penalty.

Three Strikes & Filtering

Initially France announced its intention to introduce a three strikes policy; a strategy later attracting further attention in the UK and other countries around the world. The European Parliament has also been in the process of discussing and debating the Bono Report on the Cultural Industries. In November 2007 the European Parliament's Committee on Industry, Research and Energy (ITRE), following heavy lobbying from organisations such as the IFPI, tabled an amendment supporting the introduction of internet wide filtering by ISPs.

This sparked widespread public outcry forcing the Parliament to rethink this approach.

Last week further changes were introduced to the report seeking to reverse the adoption of these strategies, instead providing formal recognition of the need to preserve human rights on the internet and to maintain a degree of policy independence:

BBC News reports stated: The amendment called on the EC and its member nations to "avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of internet access."

Two hundred and ninety seven members (out of three hundred and fourteen) of the European Parliament voted to accept these changes. Whilst not having immediate or direct impact on the laws implemented at a National level, it nonetheless represents a recognition of the negative implications of these approaches and overall policy objectives of balancing copyright protection with other fundamental human rights as they relate to the internet.

The blanket filtering of copyright material on the internet posses significant practical, social and creative implications.

The practical implications include the need to provide and maintain expensive infrastructure in an attempt to prevent unlawful access and use of such material. This would result in additional costs for ISPs which would be borne by individual and commercial users of the internet. At best, the flow on effect would be one of performance degradation, with some copyright material still likely to be accessed regardless.

The social issues are also immense. Essentially such a move would enable private interests to dictate what members of the public could access, with significant implications for free speech, cultural diversity and the future development of technology. Other arguments include the favouritism of large media corporations over that of independent producers, and the artificial continuance of business models and practices that are simply no longer relevant to the digital environment. Fair use/fair dealing rights are also likely to suffer from the adoption of a policy of this nature.

For ISPs there also remains significant questions as to their independence and liabiltiy as communications carriers. There has been a long held belief across many jurisdictions that it is for the overall benefit of the public that the internet remains an open and accesible network.

Similarly, the social costs of a three strikes policy include the restriction of internet access to those most likely to need and benefit from it – children and students. I have posted on the problems associated with this strategy in the past.

Let’s hope that these developments signify the recognition of competing interests in this space and a determination not to automatically accept the arguments offered by powerful corporations.

Articles
EFF, Music Industry Pressures EU Politicians for Filtered Internet (7 December 2007) <http://www.eff.org/deeplinks/2007/12/music-industry-europe-filter-pressure> at 15 April 2008

ZeroPaid, European Parliament Rejects Plans to Disconnect File Sharers (11 April 2008) <http://www.zeropaid.com/news/9398/European+Parliament+Rejects+Plan+to+Disconnect+File-Sharers> at 13 April 2008

BBC News, Europe rejects anti-piracy plans (11 April 2008) <http://news.bbc.co.uk/2/hi/technology/7342135.stm> at 13 April 2008

TechDirt, European Parliament Rejects IFPI Plan To Make ISPs Copyright Cops (10 April 2008) <http://www.techdirt.com/articles/20080410/165146815.shtml> at 13 April 2008

ZeroPaid, European Amendment to Stop P2p (8 April 2008) <http://www.zeropaid.com/news/9391/European+Amendment+to+Stop+P2P+Disconnections> at 8 April 2008

EFF Deeplinks, EU Politicians Strikes Back Against Three Strikes (7 April 2008) <http://www.eff.org/deeplinks/2008/04/eu-politicians-strikes-back-against-three-strikes> at 8 April 2008

EFFector, EU Law Does Not Require ISP to Hand Over Customers' Identity Data in Alleged Filesharing Case (6 February 2008) Vol. 21, No. 04 <http://www.eff.org/deeplinks/2008/01/eu-law-does-not-require> at 7 February 2008

Public and Private Governance

Following on from a number of recent posts which have considered the dominance of major record labels and the impact of their actions on the production and reception of political music, today I would like to briefly introduce the concept of private governance.

Below you will find links to a power point presentation I delivered last year titled ‘The Dialectical Interplay of Public and Private Governance: consequences for audible culture’. Arguing that we have reached a state of globalised private governance over audible culture, I conclude that the present degree of disablement of public governance structures, which took place through a series of historical developments and the emergence of modern corporations law, dramatically hinders (if not completely prevents) the resolution of the present conflict with respect to digital music.

This is not so much a new concept as an application of an existing perspective to the digital music environment. Lawrence Lessig began to consider the impact of private governance in cyberspace in Code (2.0). Chapter 16 in particular, concerns ‘the problems we face’. Here he refers to the limitations that are presently in place preventing the courts, legislature and ourselves, from being able to respond to the challenges of cyberspace.

He contends that the courts are paralysed from making the decisions they need to make as they are unable to adequately separate themselves from the political environment and because there is no ability for them to apply constitutional values to a space that is primarily privately owned and operated.

He also refers to the problems of governance itself (not just governance with respect to cyberspace), including the corruption of the political process through campaign donations and the establishment of private governance mechanisms such as ICANN, located outside the democratic process.

Finally he considers the problems with our understanding of, and interaction with, code, suggesting that in recognising the private status of this form of regulation, we should be asking things like: Who makes and writes the law? What is the scope for society to have an input into its development? Do we have a right to know about the regulation? And, is there a way for us to intervene or review it?

He states (at 324):

Whether code should be tested with these constraints of public value is a question, not a conclusion. It needs to be decided by argument, not definition... Courts are disabled, legislatures pathetic and code untouchable.

In real space, the concept of private governance has also been considered in the context of the destruction of the natural environment.

I see the impact of private governance on digital music as being a self perpetuating cycle – using the corporations law and public choice theory, media entities lobby and receive stronger legal protections enabling them to control the production and reception of culture, which in turn limits the awareness and ability of the public to challenge their control. Indeed, when culture is controlled in this way the implications are much wider than just digital music - impeding the realisation of constitutional values in cyberspace, the natural environment and many other areas of life. Political music illustrates, educates, motivates, and in conjunction with social movements, precipitates into social progress - provided it can be produced and accessed on a socially cohesive scale.

The solutions are outlined by Lessig in Chapter 17 of Code 2.0 and are undoubtedly the subject of much of his current research. As one of the major drivers of wider social progress, I would suggest that freedom of culture is a key component to this movement. Whilst it is tempting to suggest that the freedom of culture has to come before the reclamation of the legislature and democracy, more accurately, this is a fight that needs to be fought on multiple fronts at the same time. One cannot succeed without the other and both will happen in increments.

There are two versions of this file:
The first is an animated slide show with a synchronised audio track for those wishing to play the presentation – the text of the talk is also available in the notes view (large file): http://www.filefactory.com/file/bb3dbe/

The alternative version has just the text of the talk which can be read in the notes view (smaller file): http://www.filefactory.com/file/545d0c/

A separate document is provided as a bibliography: http://www.filefactory.com/file/61ff19/

Further Reading:
Lessig, Lawrence, Code 2.0 (2006)

Korten, David C, When Corporations Rule the World (2nd ed. 2001)

Wikipedia, The Prince (8 April 2008)
<http://en.wikipedia.org/wiki/The_Prince> at 11 April 2008

Project Gutenberg, The Prince by Niccolo Machiavelli (1532)
<http://www.gutenberg.org/etext/1232> at 11 April 2008