not a big truck

This particular study is now complete, but I the themes will continue to be examined at my blog.

This fella has put together a <5 min presentation that artfully and succinctly describes the changing web culture/technology, which is central to understanding the importance of reformulating intellectual property.

 Watch it below:

And hopefully the trend will spread by virtue of market necessity to remain competitive.

via Boing Boing 

EMI has announced that, in partnership with Apple Inc, it will begin in May to offer it's nearly full catalogue - minus still the Beatles - for purchase without DRM from the iTunes music store. DRM stands for "digital rights management" and has been pervasively implemented in the digital sales of major label music. The driving goal behind DRM is to provide the content owners  a great deal of control over unauthorized use, and to do so by literally preventing use. DRM typically makes it theoretically impossible, and in reality annoyingly difficult, to burn more than a certain number of CD's, or listen to the content on certain portable media player, and whatever other technology based use the content holder wishes to proscribe. The copyright question embedded in this practice is, in essence, as follows: when one purchases content for private use, should not the purchaser be allowed to enact that private use in whatever way desired. The most obvious analogy is with a CD or VHS cassette: copyright law, as upheld in a number of court decisions, holds that private, unauthorized uses of recorded media are exempt from copyright control. When I buy a CD, I am free to play it in any CD player I would like, record the tracks onto a private  mixtape as often as I'd like, or even give that CD away to whomever I deem worthy. Likewise for recorded video. The exception for private use was reiterated in the Betamax case three decades ago, and again in the early nineties as digital recording devices proliferated. The 1998 Digital Millennium Copyright Act, however, legislated the legitimacy of owners control over private use. The act is the definitive basis of US digital rights policy, and among its statutes are a set of anti-circumvention provisions that make it illegal to circumvent DRM protections, or to produce technology that facilitates their circumvention.

The DMCA seems to be at the center of all focused discussion, and will be a major player in the final paper written on this research. For the purposes of the thinking here, it is the legislation that cemented the legal legitimacy of DRM. Rights management in this way, through embedding actual limitation in the content, is problematic for reasons beyond simply making it a pain to listen to music bought of off iTunes on a Rio. Within the practice is disregard for fair use. In fact, it often makes fair uses legally impossible. By embeding in content the technical inability to make unauthorized uses, fair uses are also excluded. //examples//  Fair use is central to cultural development and the public good, and so the new copyright regime represented by DRM is dangerous, and EMI's move will hopefully prove successful and spur other labels to do the same. 

Interestingly, EMI's move away from DRM is the result of the market, rather than courts or congress, raising an idea I had not previously considered: the activities of consumers and the market has a vast impact on the rights claimed by copyright holders. If their are sufficient options available to consumers, and consumers find the terms of use for a particular outlet unsatisfactory, than the loss of business to that outlet may cause it to change its policy. What seems unique about digital copyright, and the unusual role the market might play in its development, is the ready availability of identical pirated content without the embedded use limitations of DRM (which,again, is not limited to music). EMI may have smartly come to the conclusion that consumers, when faced with the choice between interoperable content from p2p networks or DRM'd content from online music stores, the prevalence of privacy may not be so much a question of price than dissatisfaction with the limitations on music store content.

The online service Jamendo announced today that one million albums have been distributed through their service, free and licensed under the Creative Commons, by individuals globally. One million albums in the US is certified platinum, and that Jamendo has had this success is significant, especially given that these are albums created by  artists whom are "giving them away", or in other words, freely sharing their creations. The gut reaction in Western culture is to chuckle and quip "that's because nobody wants to buy it". Anybody who was ever involved, or even consistently exposed to, a scene of local musicians (whom make little money) knows the fallacy of the consumption = value equation. Perhaps more tellingly, many people who've consistently been exposed the the music of the Top 40 stations feel the same way.Anyhow, on Jamendo, I  click on the "rock" genre from here in Conway, Arkansas and have over seven hundred albums presented to be from artists in France, Brazil, Germany, Hungrary, Israel, California, Argentina and nearly anywhere else available in a couple clicks.

Jamendo describes itself as follows:

jamendo is a new model for artists to promote, publish, and be paid for their music.

On jamendo, the artists distribute their music under Creative Commons licenses. In a nutshell, they allow you to download, remix and share their music freely. It's a "Some rights reserved" agreement, perfectly suited for the new century.

These new rules allow jamendo to use the powerful new means of digital distribution like Peer-to-Peer networks such as BitTorrent or eMule to legally distribute albums at near-zero cost.

jamendo users can discover and share albums, but also review them or start a discussion on the forums. Albums are democratically rated based on the visitors’ reviews. If they fancy an artist they can support him by making a donation.

jamendo is the only platform that joins together :

• A legal framework protecting the artists (thanks to the Creative Commons licenses).
• Free, simple and quick access to the music, for everyone.
• The use of the lastest Peer-to-Peer technologies
• The possibility of making direct donations to the artists.

I don't want my entries here to center around musical culture, and the copyright issues therein, but 1.) music has been the earliest battleground over digital copyright (napster, kazza) and 2.) music is one of the oldest and most accessible elements of culture. Jamendo is specifically interesting in its use of Bit Torrent, a new distribution technology that has several particularly significant attributes.

In keeping with the still emerging democratic nature of the net, torrents take a unique and distributive, if not democratic, approach to content distribution. Unlike early P2P (peer-to-peer) protocols, torrent downloads refer to and draw the bandwidth of no central host. Instead, the distribution responsibilities and bandwidth are shared by all the users actively of the shared torrent. Users who are 'leech', or download from the pool, while other users who are finished downloading 'seed', or distribute the file through there own bandwidth allocations/limitations. Bandwidth, in it's digital use, is the increasingly commodified range through which information can travel over networks. And it costs money. If jamendo had to provide the bandwidth for those million album downloads at 60mbs a pop, it simply could not afford to under it's current business model, focused as it is on cultural free exchange (and limited advertisement revenue). Torrents cut out the intermediaries of distribution, whether analog record labels or digital backbone hosting, and allow for a more free exchange of culture.

Because of this, they also pose a new challenge to the traditional authorities of cultural production. The technology has, naturally, become a popular medium of choose in undermining control of copyrighted material. And it community hubs a new target of legal action. It can't be shut down in the same way napster and kazza, however, due to it's decentralized nature. The lawsuits continue, however.

How torrents fit into the tradition of copyright policy formulation, and how it may be exceptional. 

 In so many ways, copyrights holder struggle to retain control here mirrors previous battles. New technologies of distributing content never quiet fit into existing copyright laws, as Litman discusses. For one, the policy writers are generally not in a position to foresee future technologies. But if broad limits on control were established, the law would have far less trouble adapting. However, the process by which bills are written and policy created establishes a web of convoluted and narrow exceptions forged by and for existing copyright interests with little room for future developments. For this reason, battles over copyright interpretations and implementations have raged nearly continuously throughout the 20th century. At the turn of the century, piano rolls challenged composers control over performance, leading to a 1905-06 legislative conflict; later motion pictures and "talk boxes" (1912), and radio (1920's).  This trend continues through to the debate over VCRS in the early 80's, home recording equipment in the early 90's, and internet distribution recently. In each of the cases, interested bodies (consumers not included) have been brought together to haggle over legislation, writing it by committee, each using its influence to carve a narrow exception in law for its own business model of copyright use and excluding all parties not at the table, the general public included.

What is unique about bit torrent, and the 'net trend it represents, is that there is no central entity profiting in the same way from it's use. For this reason, their is no interested party in the traditional, D.C.-lobby sense to sit at a table with the MPAA and RIAA and spar over positions and come to an argreement. Piano roll vendors, motion picture firms, radio broadcaster associations, et al were all making significant and specific profits from their sales of copyrighted material and related paraphernalia, and so could fund lobbiest and influence policy makers. Torrents and their like create more free information, rather than new ways to profit from it, and so have so such centralized and empowered interests. This makes it difficult for a internet distribution advocate to emerge in the policy realm outside of the historically underpowered consumer coalition.

Likewise, however, it also makes it difficult for conservative copyright forces to shut down the practice.The folks that profit over bandwidth use have clearly sided with the conservative interests, as they seek to share in profits from sale of copyrighted material via creating a tiered network. This leaves unorganized but ubiquitous internet uses who don't have a Sony to fight for their right to record TV for home use, as had happened in the early 80's. Google and other content aggregators are showing interest, but don't have the same sort of interests; copyright issues are not central to their business model (their actions surrounding their YouTube property will be the true indicator). By my account, the two fold uniqueness of the net-as-distributive system for its 1.) lack of a central vested interest(s) to influence policy and 2.) lack of a central interest(s) to prosecute (ISPs have carved an exception) makes for a unique historical point in the history of copyright.

Litman made a brief mention of how other nations are opening up their information policy as the U.S. codifies more and more mechanisms of control.(find page) She stops with that assertion, however, and leaves the details hanging. This brevity of mention make sense given her focus on specific digital copyright law rather than broader information policy, but left me curious as to what alternative models may be implemented out there. Lessig will likely cover this broadly, but before opening those pages I wanted to do a brief cases study to get my own personal bearings before getting into his particular perspective. A warm-up, if you will, to the deeper cultural implications of copyright law.

One of the global leaders in open information policy, it turns out, is Brazil. Prior to research, if I'd been asked to throw out some nations I thought might be leaders,Brazil's would have been on of the early ones due to my awareness of their controversial take on drug patents, another major component of intellectual property law. Brazil's drug policy in 2004 and thereafter pretty much told major patent holders on HIV/AIDS medicines to bugger off as Brazil produced it's own copies of the drugs to best address the growing AIDS health problem within it's borders. They've evidently taken a similar take on copyright.

The Brazilian cultural ministry took umbrage at the idea that it's creative activity could be controlled by the interests of corporate media conglomerates a hemisphere away (mainly those in the US). In 2003 a newly appointed Brazilian Minister of Culture reacted by forming an institutional aliance with the Creative Commons movement, one that has gained continual popularity as an alternative to the "all rights reserved" nature of tradional copyright. The national sentiment behind the move is expressed well by a spokesman for Brazil musicians speaking at a public forum on Brazilian IP law,

the discussion is not only within economic basis. It is time to bring the discussion within a human basis. … When dealing with intellectual property we are renegotiating my life not as an artist, but rather as a citizen. … It is crucial that the human aspect be the core of the discussion: I am a commons good, I create the national identity. I and all the other artists are intrinsic goods of the country just like petrol is.

The emerging information policy of Brazil reflects this natonal sentiment well. The Minsitry of Culture has sponsered the Pontos de Cultura, or "Cultural Points", program, in which small government grants are issued to hundreds of community centers to install small - and increasingly affordable - recording and video studios in community centers, and to teach residents how to use them. As a result, many Brazilians and engaged in and created a cultural outpouring of music and video, often times "racially conscious and politically tinged" takes on hip-hop and electronica. Further, these individual and group creations are broadcast over community radio and independently distributed in CD's at "markets and fairs" rather than record labels. In this small way, Brazil's relatively small program had brought everyday citizens into the process of creating culture, and had been able to so while circumventing the traditional institutions of cultural authority: the major record labels, recording studios, and radio stations. Of course, these institutions are quite unhappy with the new tendencies of Brazil's information policy, and their representative interests have put the nation on notice. 

There does exist, in actual policy, alternative visions of copyright to those being forwarded by the MPAA, RIAA, and the like, and this breadth of possibility seems important to keep in mind.

The Copyright Royalty Board, a panel within the Library of Congress, ruled on March 2 that broadcasters of radio over the web must pay a .08 cent fee - rising to .19 cents in 2010 - to the copyright owner every time a listener hears a song, the NYT reports. Futher, each channel must pay at least $500 to be able to broadcast any copyrighted material at all.

In an interesting way, this reflects the battle Litman discusses between new media and traditional media over digital use and the application of copyright law to it. Every time digital content is used,whether streaming or from a local hard drive, a "copy" of that content is technically made in the individuals consumer's RAM. The Copyright Royalty Board is here taking the stance that copyright owners are within rights to collect fees for every copy made in this way. It is important to note that the internet radio broadcasters pay a fee not for every song they broadcast, but for every listener that uses, or hears, that song. This is not the they way traditional broadcast radio licensing  works; CBS radio pays licensing fees for the limited rights to make internal copies of and to broadcast copyrighted works (the copies must be destroyed after a period of time). Because listener's of broadcast radio do not "make copies", the fee structure is not based on the number of listeners.  Massive copyright holding firms like major labels are making progress with this ruling towards an interpretation of digital copyright in a way that maximizes copyright holders' ability to control use in a historically unparalleled way.

Even in the internet radio case, one can see a deleterious impact on the cultural public sphere. The ruling that internet broadcasters must pay a fee of at least $500 to each copyright holding firm will limit the breadth of content that they can broadcast. For example, a small independent label may only posses copyright holdings on 35 artists' materials. Prior to the ruling, internet broadcasters were free to offer listeners a mix of say, 12 songs from 6 of those artists, and pay a minimal fee per song. And they could do so for many, many different such small labels. The fact that under the new ruling they must pay at least $500 to each label whose material they use will greatly curtail the selection of labels, and of music, made available to listeners. By contrast, a major label – the organizations most aggressively battling for enhance control – may hold rights to 2,500 different artist's materials. The ruling strongly encourages internet radio to emphasis major label content in their broadcast; the minimum fee of $500 grants access to more songs from a major than from an indie label.  Often times, however, artists on major labels are tightly constrained, even scripted, in the messages and music they output. The privileging the ruling places on  major content thus also narrows the range of musical messages available to the public. This in turn discourages the fermenting of broader creativity, inspiration and innovation in cultural public sphere.

Thee issue is far form decided with the CRB ruling, however, and close attention must be payed to the continuing debate over digital copyright, attention I hope to contribute to duly here and elsewhere.

   
    It occurs to me that I have not given adequate thought to what I mean by calling my work this semester a study on intellectual property ethics. This is largely due to my civilian understanding of ethics itself. Like anyone, I understand that ethical questions are those of right and wrong, of value and morals. But it seems insufficient to conduct my thinking here in the meager framework of the "rightness and wrongness" of intellectual property law.

To the end of developing a more robust ethical system with which to consider IP issues, I've done a brief survey of ethics via selected readings and have come to what I think is a workable understanding.

My interests here lay somewhere between information and legal ethics, and normative and applied ethics. I will describe that approach taken here as first making a serious of brief normative assertions about information ethics, and then considering intellectual property law in terms of the way in which it does or does not match up with the legal codification of of those information values.

Admittedly, my grasp of ethics and the framework here is crude and perhaps overly intuitive, but I will present it as it is, and continue to think on it as I continue.

    The normative stance on information ethics informing my analysis is straightforward and likely familiar to citizens of open societies. It is at its heart a mirror of the the previously mentioned American "information ethos" and the doctrine of fair use. In the interests further developing it, I will rearticulate the framework after finishing "Digital Copyright".

For now, I will vaguely state the dieal normative conditions as those in which:

1.) Creative workers control the ways in which  their copyrighted works are attributed when directly used in other works.

2.) Creative workers control the the direct use of their copyrighted works in commercial or other profit making uses.

3.) Individuals private use of information is non-regulated in terms of copyright violations.

4.)Not-for-profit uses demonstrably engaged in the public good are not regulated.