Time for a data transmission summit

by Andy Oram

Related link: http://blogs.law.harvard.edu/2003/11/17#a651

In a widely circulated weblog, software designer Dave Winer has called
on major Democratic presidential candidates to issue statements about
current intellectual property battles. Winer is backed up by another
by noted law professor Lawrence Lessig. Their goal, which I and most
other people in high-tech support, is to to "keep the Internet free of
interference from the entertainment industry," as reflected in the
DMCA and its harsh application, the anti-KaZaa lawsuits by the RIAA,
the recent broadcast flag required by the FCC on digital reception and
playback equipment, and so forth.

I would go further and say it's time for a broad-based but officially
sanctioned summit on information transmission involving Congress,
relevant agencies such as the FCC, technology leaders, and content
providers. These would not be the stacked hearings and closed-door
negotiations that usually drive policy in these areas, but a frank
examination of what technological change is doing to our data. It
would not be restricted to the field known as intellectual
property. (The term is not really appropriate, of course, and
technological change is making that more and more obvious as time goes

Don't think that current IP battles are just large entertainment firms
defending turf. We will all eventually be towed in by the deep
currents that the content providers are struggling with now.

The plummeting cost and increasing ease of transmitting material
changes everything about information. But policy got off on a bad
footing back around 1995 in the first serious government examination
of the issues, the notorious document "Intellectual Property and the
National Information Infrastructure: The Report of the Working Group
on Intellectual Property Rights," by Bruce Lehman and the Information
Infrastructure Task Force. This report founded the original sin of
digital policy, defining the movement of bits within a computer as a
"copy" of a work and therefore as a copyright-infringing act.

Lehman's report essentially declared that the government's approach to
protecting copyright holders' interests would be business as usual.
The Clinton administration hereby set itself inexorably against the
technological tide and committed itself to a philosophy totally out of
touch with reality, a course that led to the dismal results we see
today. And yet the doctrine of the infringing computer copy has
spread throughout the world and is being urged by copyright holders on
governments everywhere.

Similar defenses of business as usual have distorted policy in just
about every other area of "intellectual property," including
trademarks, patents, and trade secrets. While the World Intellectual
Property Organization and its adherents claim to balance technological
change with the interests of current big business, decisions always
slant toward the latter.

But we must not lose all discernment in our fight against abuses by
large intellectual property interests, because they are touching on to
something that affects us all. The ease of storing and transmitting
information that essentially takes on an eternal existence is a social
issue that we all must face. One current manifestation of the problem
is the recent decision by many health clubs to ban cell phones because
some contain cameras that can catch members in compromising positions.

The spread of cameras, sensors, and wireless networks will lead to
more such dilemmas that will make us wish we could sit down with the
intellectual property interests and discuss what we all have in
common. Too many people fall back on the oft-discredited but easy
phrase "information wants to be free," which is no more appropriate to
the situation than the "get over it" response to violations of

We can't stop the spread of information, but we can try to establish
norms and ground rules for its use. We have to celebrate what we can
achieve with the potent combinations of new technologies, but try to
remain masters of them. And that is why it's high time for a summit.

Right now, we're in a battle where those with the most social and
political power benefit at the expense of the rest of us. This means
large corporations having free rein over information transfer where it
benefits them, while they legally restrain its transfer where they
sense a loss. A summit will necessarily have to raise questions of
power, which are the questions powerful interests are most loath to
address. We must push all the harder to make the issues explicit.

What can we learn from the current copyright battles?


2003-11-20 11:40:59
Free Transport License
It's a work in progress, but...


It basically says it's OK to move bits around as long as the act of moving them around incurs no cost. This differs subtlety with the CC-style licenses in that its focus is on the transport-of and not the reproduction-of content. Heck, it might even make it easier for the copyright holder to collect compensation and gain a larger audience all while helping create a more modern and sustainable communications infrastructure.

See, companies like AOL/TW make money whether you buy the CD or swap MP3s over a P2P network. They need you to use their network. It's much easier and profitable for them to collect a known monthly from you. Plus it's much easier for them to tell you what to consume then it is for them to hope you pay attention to their payola.

2003-11-20 18:56:08
Free Transport License
I hope you do not include illegal MP3s in your analogy here:

See, companies like AOL/TW make money whether you buy the CD or swap MP3s over a P2P network. They need you to use their network. It's much easier and profitable for them to collect a known monthly from you. Plus it's much easier for them to tell you what to consume then it is for them to hope you pay attention to their payola.

Because for every penny they would make on a bandwidth fee they would lose dollars if that person is downloadling 40 cds full of MP3s from the latest or most popular Time Warner music or video etc...

I don't know how in the world a reasonable monthly fee would cover the costs of all the lost sales that kazaa users rack up in a single day.

2003-11-21 14:14:28
Free Transport License
Define "illegal MP3s"

Your example of 40 CDs is wrapped in probability.

A monthly is a known value.

Some people like a crap shoot, others like a sure thing.

As always, in the end, the House wins.

This is until the idea of what a house is looses it's meaning. Then it becomes a completly different game.

2003-11-21 17:06:37
Free Transport License
First, I don't think that there's been a case yet decided that specifically says that noncommercial filesharing of MP3's is illegal. I could be wrong, but I believe that is still up to the courts.

Second, a reasonable monthly fee would be spread over ALL users. I subscribe to a hi-speed internet provider. I pay for that every single month. I very, very rarely buy cds. (What can I say? Britney Spears, Justin Timberlake, and the rest of the prepackaged mainstream drek out there just doesn't float my boat.) But if I could pay an invisible monthly fee every month through my ISP that would be distributed to copyright owners, so they aren't so scared of losing revenue that they can get the hell off the backs of Macintosh using grandmothers, and at the same time allow me to download classical music, jazz, soundtracks, audiobooks, etc. that I do listen to and enjoy, then I'm all for that. And record companies would be getting money from me on a regular basis that they very rarely get at all from me now. I'm sure I'm not the only person out there who pays for internet, and doesn't buy a lot of cds, and has legitimate, non-filesharing, non-copyright-infringing reasons for doing so.

Moreover, while I don't doubt that there are people out there who go to Kazaa or whatever and download and burn an entire album so they don't have to go buy it, I believe that those people are a minority. Maybe there's only one appealing song for that customer on that cd. Maybe that doesn't justify a purchase of the entire album. That's another situation I find myself in often. The truth is that That's starting to be overcome with services like iTunes, Liquid.com, and others, and I buy songs from those services, but it's also something that could be covered under what essentially is a compulsory license. And that's more money that the copyright owner would be getting from me than he has in the past. Something is always more than nothing.

Finally, if your assertion is correct that for every penny they would MAKE on a bandwith fee, they would LOSE dollars on lost sales, and you take into account the now dramatically reduced cost of distribution, and the complete lack of cost of manufacture of a cd, case, art, etc., using this means of distribution, then doesn't that suggest that their profit scheme is bloated almost beyond belief?

2003-11-22 01:59:10
Creating a Downside for IP Lawsuits
I agree that a lot needs to be done the correct our copyright laws, particularly from all that happened in the 1990s.

You can't really grasp the power of media law until you get taken to federal court. In my case, it was by the deep-pocketed J.R.R. Tolkien estate for my book-length Lord of the Rings chronology.

I was fortunate. The fair use arguments for a LOTR chronology proved so powerful the estate wrote the judge last fall, offering to settle out of court just before they would have (probably) lost on summary judgment. In January of this year, the judge dismissed their lawsuit "with prejudice"--insuring that our out-of-court settlement, though confidential, is one I'm quite happy with. You can now get this almost-banned book, Untangling Tolkien, on Amazon and elsewhere.

The estate's Manhattan lawyers had hoped to push the dreadful 1998 Castle Rock 2nd Circuit (NY) family of decisions (placing severe limits on fair use of fiction) into the 9th Circuit (west coast) where I live. By backing out, they kept alive the 'threat value' of those decisions.

In general, nasty and legally dubious legal actions do not have enough of a downside. Virtually on my own, I didn't have the resources to force an actual courtroom loss on the estate. They could bail out without harm when it became clear they would not win, leaving the legal status of Castle Rock unsettled. Nor does the law offer sufficient remedies for a legal squabble that delayed publication of my book for about 20 months.

As I told some friends, if they sue me initially for $750,000 in damages (as they did), why can't I get at least that much from them if they fail to make their case in court?

As it stands now, harassment, legal threats and abuse of copyright do not have a heavy enough downside for those who engage in such behaviors. The US Supreme Court did a little in 1999 when they told district courts that a winning defendant was as deserving of being awarded legal fees and a winning plantiff. But far more needs to be done to stop this madness. A conference would be a great help.

--Mike Perry, Inkling Books, Seattle

2003-11-29 22:33:34
Free Transport License
1. Why should I pay for your downloading of mp3 files if I'm not downloading any? Imposing an invisible fee on everyone is worse than the current situation.

2. What makes you think your monthly isp fee would remain the same in a situation like this? You're giving them yet another excuse to raise rates, tack on fees, and tax us all to death.

3. For all the crap music being pushed on us today by the music industry, it never occurs to them that the reason sales are down is because of the crap and fillers they are selling on each CD, and is not due to file-sharing.

4. Some of us have paid for our music collections FOUR times already; once for each format change over the years: vinyl, 8-track, cassette, and CD. Paying a fifth time is asking for the unreasonable.


2003-12-09 21:40:40
Free Transport License
Second, a reasonable monthly fee would be spread over ALL users.

Worst... idea... evar!!! Surely this is a troll???