Intellectual Property

My friend Rawhide just pointed me to an answer to my head-scratchings about Apple v. Real and how it fits with their give-away-the-blades and sell-the-razors strategy. From EFF’s Deeplinks:

So you’re Apple, and you make all your money selling iPods. You invest in the Music Store to make the iPod even more attractive, never intending to make much margin on the 99 cent downloads. But here’s the problem &mdash you really don’t want every other maker of portable digital music players to free-ride on your Music Store investment. After all, the Music Store is supposed to make the iPod more attractive than the competition.

Here’s where FairPlay comes in. It’s a great barrier to entry that keeps the iPod as the exclusive device for the Music Store. Competitors who dare to reverse engineer the protocols or otherwise support interoperability find themselves staring down the barrel of the DMCA.

Update on JibJab: Fred von Lohmann over at EFF’s Deep Links reports that Guthrie lifted the melody for “This Land is Your Land” from the song “When the World’s on Fire,” recorded by the Carter Family ten years prior. Eugene Volokh (who has had a series of interesting comments on this case) notes that if correct this significantly strengthen’s JibJab’s fair-use argument, but I think the more interesting take-home message is that This Land is My Land was (and perhaps still is) probably a copyright violation itself. Not that this should surprise anyone — copyright violation is practically a part of the definition of folk music. No doubt the Carter Family didn’t mind Guthrie’s song any more than Woodie would have minded JibJab, but imagine how much poorer we all would be if a rights-holder like The Richmond Organization had kept This Land is My Land from being recorded?

As Lessig points out, we citizens have the right to change the law. Copyright is a government regulation on the marketplace of ideas, one that restricts some speech in the hope that it will encourage others to produce more. We’re all fully aware that the Net has radically shifted how the marketplace of ideas now works and will continue to work in the future. Isn’t it about time we reexamined whether this government regulation still makes sense?

Nice post by Dan Gillmor on what Woodie Guthrie would have thought about The Richmond Organization threatening to sue the JibJab folks for infringing on “their” copyright of This Land is My Land…

I’ve been meaning to blog about the Inducing Infringement of Copyrights Act (S.2560, previously known as INDUCE), but between Ernie Miller’s great blog posts about it and now The LawMeme Reader’s Guide to Ernie Miller’s Guide to the INDUCE Act I can just be lazy and point to their stuff. Summary of the summary: the usual suspects who brought us the DMCA are trying to give the Content Cartel yet another bludgeon they can use to shut down anyone that threatens their monopoly, and if they’re lucky finally do away with the Sony v. Betamax decision that kept them from declaring the VCR illegal.

BTW, here’s the current list of co-sponsors: Orrin Hatch [UT] (primary sponsor), Lamar Alexander [TN], Barbara Boxer [CA], Hillary Rodham Clinton [NY], Tom Daschle [SD], Bill Frist [TN], Lindsey Graham [SC], Patrick Leahy [VT], Paul Sarbanes [MD], Debbie Stabenow [MI].

From PRNewswire:

LOS ANGELES, July 14 (PRNewswire) — IBM, Intel Corporation, Microsoft, Panasonic (Matsushita Electric), Sony, Toshiba, The Walt Disney Company, and Warner Bros. Studios today announced the formation of Advanced Access Content System License Administrator (AACS LA), a cross-industry effort that develops, promotes and licenses technology designed to enhance digital entertainment experiences. This technology will facilitate the ability to enjoy exciting, new, flexible entertainment experiences for consumers in stand-alone, networked home and portable devices.

By “enhance digital entertainment experiences,” of course, they mean “have enough DRM that we’re willing to release our content at all, preferably without alienating all our legitimate customers.” Not clear how they intend to achieve this DRM equivalent of the Philosopher’s Stone, but they’ve got a lot of heavy-hitters involved…

More details are promised in coming days at http://www.aacsla.com/.

Barry Ritholtz has a nice analysis of the spin the Music Cartel is putting on the recent copy-protected Velvet Revolver CD that just came out. An excerpt (from Barry’s email, not blog post) that especially caught my eye:

Here’s the oddest aspect of the DRM: iPod-owning Velvet Revolver fans cannot transfer the music from their CDs to their pods unless they violate DMCA and hack their CDs. That’s right — if a consumer wants to use their legally purchased CDs on their legal MP3 player, they must become felons. The same is true for those iPod onwers who buy the music on iTunes music store — it wont work with their pods.

Three weeks ago R.K. Milholland got fed up with people criticizing the spelling in his online comic Something Positive so he posted a dare: donate his current day-job salary ($22,000) to his pay-pal account and he’ll quit and work full-time on the comic. The donations flooded in, and yesterday he gave his 2-weeks notice.

Just one more example of how “selling” content isn’t the only economic model out there, or necessarily even the best. All sorts of things become possible when what you produce has practically zero marginal cost.

Ars Technica has a nice review of the iTunes Case Study being done by Harvard Law’s Berkman Center for Internet & Society. From the study’s overview:

By focusing on the specific iTunes example, the Case Study offers a concrete view of the way law, technology, and business model interact in the post-Napster world.  The Case Study has focused on four important regulatory issues:

• Interaction between Copyright and Contract Law
• Digital Rights Management
• Digital First Sale Doctrine
• Fair Use Doctrine

Mary Hodder over at Napsterization has a nice essay on how foolish it is for news media to hide their content behind Digital Rights Management (props to Dan Gillmor for the link). Her two main points: The most important reasons news media companies and creators should not implement DRM is because of fair use considerations of the content itself, as well as the maintenance of their positions as reporters of news, and authorities of information.

Her point on authority is an issue that can be expressed purely in business terms: don’t release your content and eventually you become irrelevant (and thus out of business). Her fair use argument is equally important, but harder to explain to all the large corporations that have bought up news organizations in recent years, but who didn’t grow up in the industry. Journalism is a social contract wherein the press receive special access to political leaders, special legal status, and strong constitutional protection, and in return provide the useful, trustworthy information our democracy needs to survive. Fair use may not improve shareholder value, any more than anti-bribery laws improve a congressman’s annual income, but it’s necessary for the press to continue their vital role as a public trust.

A HBS and UNC Chapel Hill study comparing file-sharing downloads to music sales data supports what several people outside of the recording industry have been saying for a while: file sharing isn’t what’s hurting music sales (thanks to Cory at BoingBoing for the pointer):

Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates. Moreover, these estimates are of moderate economic significance and are inconsistent with claims that file sharing is the primary reason for the recent decline in music sales.

As Dan Gillmor points out, the more likely reason music sales are slagging is lousy music and the cartelization of record distribution and radio airplay.