Showing posts with label DMCA. Show all posts
Showing posts with label DMCA. Show all posts

Wednesday, October 17, 2012

New Book: The Digital Rights Movement: The Role of Technology in Subverting Digital Copyright

I just read a post on the Associantion of Internet Researchers mailing list about a new book that looks interesting:

The Digital Rights Movement: The Role of Technology in Subverting Digital Copyright 
by Hector Postigo 

The movement against restrictive digital copyright protection arose largely in response to the excesses of the Digital Millennium Copyright Act (DMCA) of 1998. In The Digital Rights Movement, Hector Postigo shows that what began as an assertion of consumer rights to digital content has become something broader: a movement concerned not just with consumers and gadgets but with cultural ownership. Increasingly stringent laws and technological measures are more than incoveniences; they lock up access to our “cultural commons.” 

Postigo describes the legislative history of the DMCA and how policy “blind spots” produced a law at odds with existing and emerging consumer practices. Yet the DMCA established a political and legal rationale brought to bear on digital media, the Internet, and other new technologies. 

Drawing on social movement theory and science and technology studies, Postigo presents case studies of resistance to increased control over digital media, describing a host of tactics that range from hacking to lobbying. Postigo discusses the movement’s new, user-centered conception of “fair use” that seeks to legitimize noncommercial personal and creative uses such as copying legitimately purchased content and remixing music and video tracks. He introduces the concept of technological resistance--when hackers and users design and deploy technologies that allows access to digital content despite technological protection mechanisms--as the flip side to the technological enforcement represented by digital copy protection and a crucial tactic for the movement.

I would be particularly interested to read about social movement theory and the concept of technological resistance... this book has been added to my wish list - if you happen to get a copy feel free to leave a comment on what you thought of it.

Monday, October 27, 2008

REMIX: Lessig

I have just finished reading the book REMIX by Lawrence Lessig. This is thought to be his last book on intellectual property law/internet/culture issues.

Lessig introduces the text by considering the war on piracy and the collateral damage that is evident from the strategies of the major players in the content industry. While endorsing the existence of copyright law he argues for essential changes to take place to ensure that balance is achieved and future generations are not criminalised for what they perceive to be reasonable uses of culture. He urges us to step back and to assess the impact of policies and to take account of the both the need for, and likelihood of success, rather than assuming that legislative constraints are the most appropriate solution.

Lessig analyses culture as being either RO (read only) or RW (read write). He begins by examining cultures of the past with the oral tradition of singing and community interaction with culture prior to the advent of modern technology. He observes that developments such as the phonogram, player piano, radio, cassettes, CDs, televisions, VCRs, DVDs etc changed the experience of culture from RW to RO. In doing so there was a loss of tradition, amateurism, creativity and technique. He states that new technologies promise to enable society to return to a RW culture.

He explains that it is not a matter of selecting between two extremes – the internet vs hollywood; RW vs RO; the future vs the past, gains vs losses – but rather that both RO and RW culture can be extended by new technologies and that businesses which incorporate both are likely to emerge. He states that it should not be a matter of preserving RO culture at the expense of RW culture but that all should be encouraged to develop.

He acknowledges that there is part of culture that is created by professionals that we simply consume. Technology has enabled industries to develop with an emphasis on professional creation – the limitations in copying using analogue technology and support from the law prevented individuals from creating and reproducing recorded works. Now, with the advent of digital technology, any person can reproduce culture – it is not impossible but it is illegal.

He refers to the conditions that have always been present for writing – that quoting with citation has always been allowed and that there is an expectation of being able to lend texts from libraries - and argues that all culture will be ‘bookified’ this century. That is to say that we will develop norms around all forms of culture similar to those that have always been present for text.

While RO culture demands respect for creations, provides authority and integrity to culture and is an important part of ensuring the spread of knowledge; RW culture offers itself as a draft, invites a response and empowers as much as it educates and entertains.

RW and in particular remix culture is seen as a form of collage around which communities are developed and which enhances learning and education through participation. Creators are both professionals and amateurs. He argues that RW is an ecosystem that must have conditions which enable it to evolve and develop. Copyright law supports the practices of RO culture and opposes practices of RW culture.

He reflects on what may have been had the content industry accepted and adapted to the introduction of peer to peer file sharing and questions whether the next ten years should be focused on the war on piracy.

Lessig then goes on to describe three economies – the commercial, the sharing and the hybrid. The tangible value exchanged in the commercial economy is money. It is a simple way of spreading wealth and critical to the internet. Examples of internet based commercial economies include Netflix, Amazon and Google with three central features being the long tail, recommendation systems, and lego-ized development.

By contrast, the intangible value exchanged in a sharing economy is not money, indeed money is seen as poisonous to this economy. Rather it depends on the development of social relations in which participation is a key element. Lessig explains that there are two types of sharing cultures – the thin and the thick.

A thin sharing culture is driven by personal gain where motivations for self gain motivate contributions – examples include Skype and AOL’s IM Network.

A thick sharing culture whilst also depending on norms of sharing and cooperation are driven by a motivation to help others – examples include Wikipedia, GNU/Linux, Project Gutenberg, the Distributed Proof Readers Project, Distributed Computing Projects such as SETI@Home, the Internet Archive, the Mars Mapping Project, the Open Directory Project and Open Source Food.

Sharing cultures take advantage of tasks that users would do anyway and are enhanced in the digital environment because of the non rivalrous nature of intangibles. Different technologies enable new forms of participation and sharing and he suggests are likely to become part of the core of the internet’s ecosystem rather than reside at the periphery.

Hybrid economies combine both commercial and sharing attributes. Free Software and in particular Red Hat Linux are specific examples – the community of programmers are respected, they are given responsibility and the sense that they are part of something meaningful – this in turn enables commercial benefits to be derived and combined with a sharing culture. Lessig lists three main forms of hybrid successes, those that create community spaces such as Dogster, Craigslist, Flickr and YouTube; those which create collaborative spaces such as Politech, Slashdot, Last.fm, Usenet, Yahoo! Answers, Wikia and fan sites; and those which create communities such as Second Life. These forums are designed with community in mind and must balance competing priorities and expectations to succeed.

Hybrid economies produce both economic and social value with the spill-over of information having both public and private benefits. Some of the keys to long term sustainability of hybrids include not being overly focused on commercial priorities by aiming to achieve moderate rather than maximum profits, exercising only moderate control with participants being empowered to make some decisions, and transparency of motives. He refers to the transition of CCDB to Gracenotes as one example where greater transparency was required. Feelings of betrayal and a backlash from participants are inevitable when changes are made without consultation or consideration.

He states that one very damaging practice certain to undermine the success of a hybrid is share cropping. He refers to the EULAs of remix competitions where by participant's copyrights are automatically made the property of the competition organisers as one example of this practice.

Lessig states that parallel economies are possible and that creators should be free to move from one to the other as it suits them. He also acknowledges that the existence of hybrid economies which allow some legal uses of creative works as being fundamental to the decriminalisation of the cultural practices of young people.

To ensure a vibrant future for RO culture, RW culture and hybrids Lessig contends that there must be significant changes to the copyright system with far less emphasis on using the legal system to solve problems. At present the default position of copyright is set to ‘No’ but technology and the creativity of youth demand more. While he suggests that Creative Commons goes someway to addressing the issues what is really needed is a complete overhaul of the copyright system.

Lessig argues that there are five central changes which need to be made to Copyright Law. The first is that amateur production needs to be deregulated – non commercial uses should be free use not fair use. There also needs to be clear title to creative works which can only be achieved through a registration system with a renewal process imposed after a short automatic term. Copyright law must also be made simpler with legislation, in addition to fair use, specifying that some uses are not within its scope. He also suggests that the law must be rewritten to focus on uses (such as public distribution) rather than be determined on the notion of copies. Finally he advances that Congress should move to decriminalise file sharing by allowing non commercial sharing with additional taxes or by imposing a blanket licensing procedure.

Without these changes Lessig fears a destructive impact on the rule and respect for law by future generations.

This was a very enjoyable book, it is well written, easy to read and at times quite funny. For my purposes I found it a little too descriptive and thought there could have been more analysis.

The recommendations to change copyright law are not new and could have been more directly integrated with his observations with more attention given to why they are needed and what impact these changes would have on the ecosystem. The coexistence of these two forms of culture (RO/RW) have been the impetus for much of the conflict in this area and there is scope for a much more detailed discussion as to how these can survive and thrive alongside each other.

He uses the recording industry as an example of a hybrid economy with specific reference to the loss of income to major record labels as an illustration of the ability of the industry to embrace both commercial and sharing culture. Whilst I would argue that the music industry (which is wider than just the major record labels) can, and is, a hybrid economy, I would not have referred to these statistics as an example.

There was never any deliberate effort or desire on the part of the labels to embrace this strategy rather it was imposed upon them. They took active steps to prevent this from happening and only in recent times have accepted through the development of avenues such as MySpace Music and changes to Yahoo's search engine results, that complete control is not necessary. The definition of a business within a hybrid economy, and indeed the other examples he uses, refer to businesses willing to give something away in order to gain, rather than what is taken from them. The loss of income to labels while not conclusively or solely due to file sharing, could well be interpreted as an indicator of their inability to be embrace a hybrid model.

Lessig could have also paid more attention to the role of the Corporations Law and how the fiduciary duties of directors and company executives impact on the choices that are made and the obligations to prioritise profit over community.

Tuesday, August 19, 2008

The Evolution of Culture: Is Political Music Still Being Heard?

Updated: Here is the draft of a presentation I will be giving in the coming weeks. I discuss the nature of political music, the institutional developments and constraints on its production and reception and some strategies that could be employed to maximise its potential for social change.

Keep in mind that this is a work in progress.

Power point presentation with audio – warning large file
(this file has been updated)

Power point presentation without audio (see notes view)

Bibliography (word document)

(Select download with File Factory Basic).

Sunday, June 15, 2008

Prince/Radiohead and YouTube

I have been reading with interest the recent tug of war and apparent misuse of the US Copyright Act by Prince with respect to his live performance of the Radiohead song Creep. Prince played this song at a concert and an audience member filmed part of the performance and posted it to YouTube. Prince’s label then used the DMCA to have the clip removed but Radiohead, the copyright owners of the song, sought for the clip to be reinstated:

Radiohead's Thom Yorke has reportedly objected to the takedown in a recent interview: "Well, tell him to unblock it. It's our ... song."

Commentators have suggested that Prince’s actions were unlawful because while anti-bootlegging law may have been applicable, the DMCA take down procedure used to have the clip removed was not available as a remedy.

This raises an interesting distinction between Australian and US copyright law as recent amendments in this country would now allow an artist in a similar position as Prince to take action under Part XIA of the Copyright Act 1968 (Cth) with respect to the performance itself.

In Australia protection for performances was introduced in 2007. Among other rights, section 248G establishes the rights of an artist to control the direct and indirect recording of performances, the copying of performances, as well as communicating them to the public.

Section 248PA provides both an indictable and summary offence for the direct recording of a performance without the authority of the performer during the period of protection which is 20 years for a cinematograph work or 50 years for a sound recording, taken from the date the performance was first given.

A person found guilty of an indictable offence could be liable for up to 550 penalty units ($60,500) or five years imprisonment. A corporation found guilty of the same offence is potentially liable for five times this amount. The equivalent summary offence is punishable by 120 penalty units ($13,200) or 2 years imprisonment.

These rights are in addition to moral rights provided to performers in Part IX of the Copyright Act which relate to attribution, false attribution and integrity.

In a scenario such as this an injunction would be available to prevent a clip being communicated to the public against the wishes of the performer, the take down procedures relating to hosts of internet content would also be applicable. Whilst section 248G provides that the provisions relate to performances in Australia, section 248U and 248V see the protection also being offered to international artists when performances take place in Australia.

The division (XIA) of the Australian Copyright Act dealing with the protection of performances became effective when the Australian Government acceded to the WPPT – WIPO Performances and Phonograms Treaty. While the laws had been drafted and placed in the Australian Copyright Act for quite some time they did not become effective until 26 July 2007.

Article 6 of the WPPT requires member countries to protect the economic rights of performers by enabling them to enjoy the exclusive right of authorizing the broadcasting and communication of their performances to the public and the fixation of these performances.

Article 7 provides that performers shall have the exclusive right of reproducing their performances and Article 8 provides for the exclusive right to distribute the original and copies of performances. Moral rights are also afforded under the treaty under Article 5.

It is interesting to place this treaty in a discussion of the purpose of copyright law - namely the need to establish an environment which provides incentives for artists to create. Clearly in this instance the uploading of the Radiohead song was a non commercial use and arguably the clip would have produced greater interest in Prince’s live performances. Therefore suggestions that this clip breached Prince’s economic rights are difficult to sustain.

One report suggests that Prince was filming the live performance himself. Taking this into account it could be argued that seeking to have the clip removed from YouTube was a reasonable request, however, it is unlikely that a short clip such as this would have had a major impact on the sale of any forthcoming DVD.

This situation also serves to illustrate the complexity and expansion of intellectual property law.

Performer’s rights in general have been criticized as being both unnecessary and ineffective. Undoubtedly there were other singers, musicians and dancers performing this song with him. All of these artists would have had to contract away their rights in order to work with Prince.

Furthermore this situation demonstrates the difficulty in complying with the rights of composers, recording artists and performers when each is a different person. Luckily in the USA there are no moral rights – in Australia the situation would be even more complex than this.

Prince’s actions have created poor publicity for him and potentially damaged the goodwill he has developed with his fans. These types of events however do help bands such as Radiohead and others in the open content field by highlighting the potential to abuse DMCA takedown notices.

The general public are learning time and again of the potential for copyright law to impact on free speech. It's all a little bit creepy :-)

Further Reading
TechDirt, Even Lawyers Are Confused About What's Legal Or Not In The Prince/Radiohead Spat (12 June 2008) <http://www.techdirt.com/articles/20080610/1651401368.shtml> at 13 June 2008

TechDirt, Prince And Radiohead Fight Over YouTube Song (30 May 2008) <http://www.techdirt.com/articles/20080530/1507241271.shtml> at 4 June 2008

EFF Deeplinks, Prince Issues One Takedown Too Many (2 June 2008) <http://www.eff.org/deeplinks/2008/06/prince-issues-one-takedown-too-many> at 7 June 2008

ZeroPaid, Prince Removes Radiohead 'Creep' Cover From YouTube (31 May 2008) <http://www.zeropaid.com/news/9524/Prince+Removes+Radiohead+%27Creep%27+Cover+from+YouTube> at 5 June 2008

TechDirt, Is Watching An Infringing YouTube Video Copyright Infringement? (16 May 2008) <http://www.techdirt.com/articles/20080514/1736121116.shtml> at 21 May 208

Billboard, Radiohead To Prince: Unblock 'Creep' YouTube Vids (30 May 2008) <http://www.billboard.com/bbcom/news/article_display.jsp?vnu_content_id=1003809963> at 13 June 2008

William van Caenegem, Intellectual Property (2nd ed.) 83- 84

WIPO, WIPO Performances and Phonograms Treaty (WPPT) (20 December 1996) <http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html> at 15 June 2008

Attorney Generals Department, Australia to Join Internet Copyright Treaties (26 April 2007) http://www.ag.gov.au/agd/WWW/MinisterRuddockHome.nsf/AllDocs/E8AC29AB4FF5A19FCA2572C9000F9A17?OpenDocument> at 10 May 2007

Australian Copyright Council, Government announces accession to WIPO Internet treaties (8 May 2007) <http://www.copyright.org.au/news/newsbytopic/u27462> at 10 May 2007

FreedomtoDiffer, Australia to Join Internet Copyright Treaties (26 April 2007) <http://www.freedomtodiffer.com/freedom_to_differ/2007/04/australia_to_jo.html> at 30 April 2007