Is The 'Legislative Solution' To Online Infringement To Create A Content Use Registry?
from the focusing-on-the-positive,-not-the-negative dept
While the White House has been asking the tech/internet world to come up with their own "best ideas" concerning legislative solutions for copyright issues, it's a question that rubs many the wrong way. As folks like Tim O'Reilly have noted, this seems to be starting from a pre-determined outcome without evidence. Furthermore, as Nat Torkington has pointed out, the tech industry has been offering tons of solutions for years, in the form of new and useful tools and services that create new business models.I will say that I tend to agree wholeheartedly with O'Reilly and Torkington. Before rushing in to a "legislative solution," I'd sure like to see some evidence that a legislative solution (1) is needed and (2) would actually work. Nearly all the evidence suggests neither condition is true.
However, are there more creative legislative solutions that come from thinking out of the box? Ian Rogers, the CEO of TopSpin, who has been a vocal opponent of SOPA/PIPA, (despite his close relatioinship with many in the recording industry) has an interesting proposal that he's put forth that's worth thinking about. It starts from a different perspective. Rather than using the opportunity to directly tackle this undefined "problem," he looks at solving a different problem: the fact that it's difficult (to impossible) and expensive to license music for an online service. So his suggestion is really based on dealing with that issue by creating a giant registry whereby copyright holders could indicate what they're willing to license and at what price. He notes that this is an idea that doesn't directly need a legislative solution -- and, in fact, notes that he's tried to build something like that in the past. However, multiple attempts to build this haven't gone very far. He suggests a more official version might be able to really go somewhere.
As a part of this, then, he'd offer up a "quid pro quo" to the SOPA/PIPA supporters of the world. Basically, online services -- streaming sites, cyberlockers, etc. -- would have to make use of a fingerprinting system to run checks back to this registry -- such that if someone uploaded a song, the site could quickly determine if it was "okay" to stream/download, and if not, kick it back to the uploader to deal with it.
In thinking about this, there are some things I like, and some I don't. I do like the fact that this solution isn't really just focused on "stopping piracy," but rather in building a tool that would actually be useful in expanding businesses. This is a key thing that many of us on this side of the debate keep asking copyright maximalists:
Which is more important? Making more money or stopping piracy?I think the only rational answer is that making more money should be the focus. What good is "stopping piracy" if it doesn't lead to greater sales? Obviously, many maximalists believe that "stopping piracy" automatically leads to greater sales. I'd argue that the jury is still out on that point. Either way, if a proposal is just focused on "stopping piracy," without any actual effort to make sure that the real focus is on maximizing revenue, then I think it's dead in the water.
This proposal, however, has as its key part, a tool -- the registry -- that is much more focused on solving a business problem, rather than an enforcement one. That it also has, almost as a side effect, the ability to have an impact on the enforcement side, certainly makes it pretty interesting.
That said, there are reasons why I'm not convinced that this would actually work. As Rogers notes, the work to build this is non-trivial, but doable. I agree, but that non-trivial problem means that certain "choices" are going to be inherent to the design, and that worries me. We'd be building a central registry really on pure assumptions both of how it would be used and what the coders think. That's almost certainly going to lead to unintended consequences -- and it's those consequences that I fear. How do you predict exactly how this works? How do you program in every option that doesn't lock you into a paradigm that might not make sense? What if someone -- either content provider or service provider -- who wants to do something unique, innovative and wonderful, but for which the registry doesn't have an "entry?" Then what? The fear is that it ends up locking in the business models issues programmed into it... and I'm not sure we know enough about the market to try to define those issues yet.
Second, we already have some pieces of this kind of thing in place already. Things like machine readable licenses, for example, is something that Creative Commons has done, and there are probably plenty of lessons to be learned there. However, even Creative Commons has run into issues at times, and has had to regularly adjust its actual licenses when they realize that current licenses don't really match a need. That's easier to do when you're just issuing licenses. When you're talking about the entire structure of a very large database, the challenges to change features to accomodate innovation and new business models becomes increasingly difficult.
In the end, though, I'm happy to see more creative proposals coming out that don't just take the same old path. I'm not sure I'd fully support any such legislation (it may depend heavily on the details). But I do appreciate that as a starting point, this is something different that truly does seem to focus on a particular and known issue (the difficulty of licensing) and tries to use that as a starting point for a more reasonable solution. It's certainly worth thinking about.
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Filed Under: content registrty, ian rogers, pipa, sopa
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"Compare With The Registry"
Safemaker, safebreaker. Round Aleph-Null.
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How would you catalog audio and video recordings without having to upload them? You'd end up duplicating the storage space required to host the internet. If you don't upload everything, then you're having to write descriptions that won't accurately identify works. And what about untitled works - how do you catalog them without confusing them with any other untitled work?
What if large copyright holding companies tried to shut out smaller copyright holders from the database? What if they wanted to treat the database as a list of "professional" works and anything not on it is amateur and deserving less protection? Whichever company or agency is managing it will have to make a decision between the power players who want to use the database to their advantage and the rest of the people who either don't want their works listed or can't get their works listed.
Not to mention that companies would treat the licensing information for a work in the database as the ultimate authority as to whether or not use is authorized, but then it won't take into account fair use.
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An acquaintance who is a, shall we say a physical goods type artist, and I discussed this earlier today. I do think that if the content is good, it will find a market, and support, even if digital stuff is given away.
Look at what happens when an artist dies. The value of their creations go up, and up, and up. Not for crap, but for good art. All those auction houses make a ton of money by selling dead artists (and some live as well) for a second or third or more times. This tells me there is value, and that people pay. Watch Antiques Roadshow for more information.
It is most definitely a marketing issue (well service and quality in digital goods also, maybe). Are there any marketers in Big Content that don't wear the blinders? A few, I think. But not nearly enough.
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What would the world look like if copyright were all of a sudden taken away, and Big Content was told "Well, learn how to compete!"?
Would they fold? Or would they learn to compete?
Thoughts?
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Legislative solutions miss the mark
The digital Age has changed all of the old rules. Computers were created to copy things, just like air transmits sound and pictures. That's what they do. Congress and the **AA's just don't get it. Until they do, no legislation will be sufficient for the task.
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If works not in the registry could safely be assumed to be orphaned and/or public domain, it seems like this system might actually help. Hell, even a giant list of copyrighted works (with their associated copyright holders) would help. As it stands, simply figuring out who owns the copyright on a given work can be an immense task -- look at all the issues the HathiTrust went through a few months back.
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It would - but I think there is zero chance of getting the content industry to accept it. Look how the author's guild freaked out over the Hathitrust project. Abolishing copyright would be no harder!
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False dichotomy. Why is it an either / or choice? I can see stopping piracy as being a way of making more money.
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Re: LOL
Poor logic.
That's not an either/or choice. It's a 'value' or 'opinion' question.
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If you read the paragraph after that question, you'll see that it explicitly says that stopping piracy may be a way to make more money.
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At worst, the non-buyers who were pirating the stuff remain non-buyers.
The way it's asked, it suggests that MORE piracy would make more money. Stop piracy, or more money. The suggesting is that stopping piracy makes less money, and encouraging it would make more. That just doesn't make a lick of sense.
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I think a lot of marketing people would disagree with you.
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Which is more important: getting an education or eating a sandwich?
There is an answer, despite both being possible. The only false dichotomy is in your imagination.
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The question - "Which is more important? ..."
Your response to my response to your comment - "Chris, it's not a question of 'more important'..."
It was, in fact, exactly a question of "more important" to which you said "False dichotomy. Why is it an either / or choice?".
and again, the paragraph after that question seems to address all your other concerns quite well, as far as I can see.
If I ask you "which is more important, money or food ?", do you really think I'm implying that you can't use money to buy food ? Actually from what you, you think it means that giving you more money means that you'd have LESS food for some reason. Clearly a perfectly reasonable answer is "food, but I may well be able to use money to get food", or in this case, as Mike says (again, this is about three lines below the question that you took issue with), "Obviously, many maximalists believe that 'stopping piracy' automatically leads to greater sales."
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No strawman, just a question. Which is the actual *goal* ?
Yes, stopping piracy may be a means to the end of making more money, but you need to be clear that it isn't a goal in itself, whereas making money *is* the goal. That then leads to the ability to ask sensible questions and to make rational decisions.
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Just because person A sees a free movie doesn't mean you lost a sale. That person may not have gone to see the movie in the first place. However, if that person was impressed with the movie, they may buy a dvd or some other kind of merchandising in the future, generating a net gain.
That person may recommend the movie to a friend, who may pay to see it and/or also buy into some kind of merchandising in the future.
To me, it seems the content industries obsession with zero sum economics is blinding them to the potential of the internet.
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For that to happen the entry barrier to the market must be low and that to be low it means people must be secure in the fact they won't get forced out of the market by mandate, it also means access to knowledge is important and that is why copyright was made to make easy to transfer knowledge to the public domain and not to guarantee survival of not any one individual.
So infringing others ideas is exactly what one must do in order to have expansion of commercial activity in the market, what is called IP property is a barrier to that.
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All credible research has shown that piracy has very little if any effect on sales. The opinion being presented is that for every dollar spent on stopping piracy you are wasting a dollar that could be put towards a business model that actually increases business. While the two ideas are not diametrically opposed, the evidence suggests that they are very disconnected. So 100mil spent on stopping piracy may bring in 1mil in new sales, if that 100mil was spent on marketing or development of products that actually make money there is a much probability of a positive return on the investment. So far the industry has probably spent more money trying to stop piracy than they will ever recoup even if it disappears. That is a bad business model plain and simple.
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The implication is that while you might imagine making some money by stopping piracy, there is a more optimal solution that focuses more on making money (involving means other than pirate fighting).
Nor is it false. Were it false, the ability to make the most money in business would be to stop piracy. Since bringing piracy down to zero doesn't win you infinite money (unless your technique includes some kind of apocalyptic economy-consuming machine), there is an obvious ceiling to gains from the pirate-fighting strategy.
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DRM, SOPA, and law suits against individual file sharers are all examples of focusing on piracy. Services like Spotify, iTunes, and Hulu are examples of focusing on the desired outcome. I would argue these services have already demonstrated that they're successful in selling more content while also automagically reducing piracy because it might just be a symptom rather than the cause.
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Laws that punish fair use will also violate the first amendment.
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That said, I think it's largely moot, as Big Content is currently more concerned about control (what they believe will be the only source of profits in the future) than making money. Though in the case of YouTube, they do often work with Google to license songs, give people (largely) what they want and make money (through Vevo, through ads and "buy this song" links). All it needed was for someone to become too big to fail - or push around - and then Big Content decided to work with them, rather than attempting to crush them.
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The labels are well aware they are never going to kill piracy. They've owned up to that in the past. Dent it some, maybe but stop it, ain't gonna happen.
As long as major entertainment makes it more problematic to obtain their material, people will continue to go elsewhere. Change the business model or live with it.
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The only problem that exists is that certain industries are failing to acknowledge that their old model cannot work as it used to.
There is no way in the digital age to prevent
a) unlicensed duplication
b) easy global transfer of digital files
These are simply facts.
As there is no way to prevent those things, the current tactics of increased copyright terms, enhanced enforcement etcetera are simply doomed to failure and are a waste of industry money.
(It is also a waste of everybody else's money too as well as having an incredibly damaging effect on people's rights, but it still costs the industries money for no actual gain)
The real problems that have been clearly proven to be damaging to business have to be addressed and as they are the very things that the industries are pushing to expand there is no option but to take them on head on.
Trying to slide by the issue will encourage them to continue with their actions which are both a danger to society and self harming behaviour.
Any time that the focus is not on rolling them back, they are pushing forward with their insanity and the harm done will be felt by all.
We need to make them focus on what they are supposed to be doing, business, not legislation.
While their reliance on copyright is allowed to continue, they will not really address their business problems.
While patents are such lucrative weapons they will not focus on real innovation (and those who ignore it to do real innovation will be punished with licensing or shut down by the non innovators) and while trademark is treated as IP legislation rather than consumer protection law, businesses will not do the necessary work to differentiate themselves through quality and service.
Do not get distracted by trying to appease them.
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"I would sooner live in a world where blockbuster films were uneconomical to produce, and therefore simply didn't exist, than one where the internet miracle is smothered.
Die big content. Die."
Agreed. Abolish copy protection laws. They have no right taking down and stifling sites like Veoh, Dajaz1, Megaupload, among others. They have no right making it legally too risky and expensive for restaurants and other venues to host independent performers. They have no business making it too legally risky and expensive for bakeries to allow children to draw custom pictures on their birthday cakes. Abolish these laws. I hardly watch that many movies anyways and I don't watch that much T.V. aside from the news once in a while. I can do without high cost blockbuster movies, abolish copy protection laws!!!!
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Two problems
One is the Fair Use problem of a mom posting a YouTube video of her baby dancing to some random backgroung music; auto-matching would find it as a violation, since nobody (except the RIAA) expects mom to check a database and pay a license fee - she may not even know what the background song was.
The other is Orphaned Works. You can find the music, or recordings of it, but if nobody claims it, it's not in the monster database - even if somebody added it, with a "blank" owner name, to whom would royalties be paid and who would set the royalty/license amount?
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Re: Two problems
https://en.wikipedia.org/wiki/Acoustic_fingerprint
Picard 0.16 released with AcoustID support
Some audio fingerprinting allow you to identify melodies just by humming them, don't know if there is a free accessible version of it to make every mom on earth compliant, though.
Then a database can be created to have the original and all the subsequent uses of that tune elsewhere, it soon becomes apparent that any new tune will have dozens of licenses to be acquired, maybe that is what is needed so some people understand why that crap should be very limited and not life + 95 years.
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Re: Two problems
The second problem is the major hole at the centre of all copyright issues. It's a direct consequence of extending the duration (and scope) of copyright and not having a registration system. The only real way around it is to set up a compulsory licensing scheme, with the funds being held on some sort of trust if the copyright owner comes forward. But to most copyright lobby groups, "compulsory licensing" is almost as bad as "free" as it takes away control, and forces them to provide frand-style licences.
Of course, the other problem is the complete disinterest any of the parties required to set this up have in it:
The idea sounds quite a bit like the "Digital Copyright Exchange" proposed by the Hargreaves Review in the UK; unfortunately, no tech company wants to go near it because they don't trust the copyright owners, the copyright owners aren't interested because it involves giving up control (and is basically compulsory licensing, as discussed above), and the government can't be bothered to force it as it is a minor issue.
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https://en.wikipedia.org/wiki/WhoSampled
Every music today was sampled multiple times from somewhere, thus this mean as technology progresses and we start finding all instances of use of some song or part of it, remember US courts have demolished the de minimis requirement so even a note if it can be proven came from another song is theoretically fair game for litigation if you said it outloud that you took that note from some song you ass is owned.
That is very troublesome, further is not only audio that can be found that way images can also be matched by illumination maps since that is form agnostic it will match image compositions that resemble any image queried, would film makers start to pay every single lincense for every frame in a movie?
That would be 24 frames per second that equals 1440 frames per minute that equals for a 90 minute movie 129 600 frames to check.
Studios and labels are greedy but they are not stupid they won't go along with electronic databases because the fact is, they like the mess it allows them to abuse the system and not have to deal with the inefficiencies of the system that would become painfully clear. They would have to pay more, they would have to spend more money clearing rights and would be open to litigation from anyone in the world and that is big.
Those databases can be done, they are not trivial though, maintenance of the data would be a nightmare, there is nothing forcing a copyright holder to update the status of the copyright or if he transferred that to someone, we can catalog the works and have fingerprints instead of the whole work and even link those works to others creating a genealogical tree but ownership status can't be maintained easily there is no means technological or legal at the moment to do that and I doubt that even legal requirements to inform of the status of the copyright ownership or license terms changes would be useless, just like the actual copyright database of the USTR is today.
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Wrong starting position
The issue is GREED. There is A LOT of money in big content in the middle and those people do not want to give that up. That is natural. If you are being paid a ridiculous amount of money and that is dependent on keeping other from entering your market then of course you will try desperately to protect your interests.
Big content isn't upset with the tools that tech has created, it's upset that those tools are available to anyone who knows how to use them. Tearing down the entrance barriers is the real fear. Creating jobs where there were none and splitting the pie is the real fear.
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spamsolutions.txt
I can already see a few parts of that which apply to this post. In particular, "requires immediate total cooperation from everybody at once".
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This doesn't address...
The proposed registry doesn't seem to do anything to reconcile the difference between the false scarcity that the recording industries want to sell us, and the absence of scarcity that actually exists.
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Every work created is copyright, automatically. That means any use of it is covered by copyright, and thus you cannot use it without permission. END.
If you don't have permission, you can't use it. How hard is that to understand? If I want to use CC or copyleft or whatever on something, that is my right to choose.
Basically, if you want to create a registry, create one that is opt in for sharing. Basically, if the work is NOT in the registry, it isn't okay to share.
Don't place the burden on people who don't want to be party to your share everything culture.
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Coyright is not a right.
All copyrights are supposed to expire.
This "share everything culture" is what gives you any potential to have a cash cow to begin with.
Copyright is not some sort of property right. It's simply a means to encourage creativity and give people more stuff to copy.
The default of "someone already owns it" is severely detrimental to subsequent creative activity. The example of some adult recording a dancing toddler is just the most casual sort of example of the problem.
Even "Happy Birthday" is mired in copyright nonsense and that's just obscene.
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Either, or... problems
P | Q P v Q
T | T. T T T
T | F. T T F
F | T. F T F
F | F. F F F
The inclusive "or" was used. Which means (unlike "and") that "either profits or halting copyright infringement" is a correct use, as it could be the case that both are true. Moreover, it is appropriate to ask what is the final goal of a corporation or group of content owners.
The objective (given evidence by content rights holders) appears to be an overall increase of control over the marketplace. Lawrence Lessig writes regularly on this issue. By controlling the market for content they have created a monopoly or olligopoly. Content distributors have in the 100 year history of mass media (first in movie distribution, then the recording business, now everything) continued to create a monopolistic market with the intent at collusion. Their objective is to price fix through non-communicatory relations. They are forbidden to "collude" as an industry directly, but indirectly, just like Superpacks, they can look at the screens and set prices according to who is successfully selling for the most.
By having total control over the marketplace, distributors are able to prohibit individual content creators from entering the market and break their price fixing through a new source of supply. Content distributors do not want a saturated market as that means value is returned to the consumer.
In microeconomics, pure competition maximizes social welfare, the balance between supply and demand--a shaded area between the price and quantity of a product a consumer will by at that price given any particular supply and demand curve. Pure compstition lowers the overall price of content to its lowest possible level (in theory) thereby maximizing the society's ability to buy products for a lower price--more for less. This is where we get the idea that capitalism promotes a better outcome.
However, firms will do everything possible to hault this--firms in the media model are distributors who do not inherently create content but at a time gave artists access to means to produce content, and then took that content, providing a fractional sliver of the profit pie. This creates a monopolistic effect. If artists want to make any money, they must go through the established content distributors. That's why it is better to come in second on American Idol. You are locked into a distribution contract.
The true relationship here is "OPEN" vs "CLOSED" markets. The industry of content distributors would want it "closed" to maximize their profits, while artists would want distributors functioning in an "open" market structure, thereby minimizing cost to entry, and allowing those artists who have talent to become profitable based upon the number of people capable of saturating the market.
The problem with this is that the market could become oversaturated (i.e. what would happen to the diamond market if De Beers was broken up and supply made competitive) and prices might drop substantially as consumers realize how many artists of great talent exist. Then again, there might not be that many. Only the market can decide.
Content distributors cannot take a huge cut of an artist's royalties and personal profit in an open market, because the artist can simply go to someone else.
That's some of the problem in a nutshell. Ergo, content distributors will do whatever it takes--up to an including breaking our system of government--to keep the markets closed.
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one further point
The content creators are told that were the market place to become saturated there exists the possibility that artists such as "The Beatles" would not be in a position to make the astronomical sums of money they did in an open market.
They operate under the lifeboat plan: those who are in their lifeboat do not wish to help the freezing passengers drowning from the now sinking Titanic, because their lifeboat might tip over or sink, so they will beat people off the boat. In our case, use all legal means to keep the market closed. If they do this they ate guarenteed safety-- or so they think.
What they do not take into consideration is that the marketplace is best suited to them, not distributors. The market protects bad artists as it now operates that can meet with the look and feel the industry wants to sell--what "creation" it can best market.
True music artists are not "pop" sensations. They don't necessarily have "blockbuster" written all over themselves. Content creators who are making boatloads of money, don't want to risk the scenario whereby they might tip the boat--in our case, have their talent be subpar.
As citizens and consumers, in our nation as it is theoretically possible to operate under our as written Constitution, it is in our court to set price. Consumers have all the power. Companies have used their powers developed through market manipulation to press government and manipulate the socioeconomic system to such a degree that they are able to get passed that places market control--price control--in their hands, to the detriment of consumers.
A better question: " Is it possible for citizens who generally act as consumers to play the middle out of both ends, or can they only support consumers, as any deviation will fundamentally deminish social welfare?"
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Re: one further point
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Rollback the Copyright Law
Why must we propose ever more convoluted and tortured laws to further "legitimize" laws that are clearly for the sole benefit of a special interest group (the content industry), when a simple solution is available. Yes, restoring copyright through the legislative process to its original intent will be an uphill battle.
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Global Repertoire Database
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Re: Global Repertoire Database
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The DMCA's notice-and-takedown already goes too far, really, and it at least requires the copyright holder to a) notice the "infringement", b) go to the bother of filing a notice, and c) swear they are in fact the copyright holder.
ContentID is a knee-jerk reaction of a computer, with a) false positives, b) no threshold of "worthy of my attention" to act as a safety valve, c) no way of knowing if a use was actually authorized or is obvious fair use, and d) can in principle block anything, regardless of copyright status, and has in fact been abused by some businesses that sell compilations of classical music to block public domain classical works. To test this for yourself, get some public domain stuff from MusOpen (e.g., Ride of the Valkyries composed over a century ago and performed by the US Marines marching band, ergo a public domain composition and a public domain recording), use it as the background to some silly video, upload it, and within a short time you'll likely be notified of a ContentID match on the music by one or another "performing rights society" that, clearly, doesn't actually have any rights to that particular music. Worse, YouTube's form for contesting it doesn't have "your ContentID 'partner' lied and it's actually public domain" as one of its multiple-choice allowed defenses. Also, you have to swear under penalty that your video was "blocked" erroneously -- which means if it wasn't blocked, but just laden with ads and configured not to let you put CC BY-SA or whatever license on it, then you'd have to swear that something was "blocked" when it wasn't actually blocked in order to dispute what they did do. The whole thing's an unholy mess. And part of the problem is the reversal of the burden of proof. With a DMCA takedown the issuer of the takedown has to swear under penalty that their copyright claim is valid; with ContentID it's reversed so that the user whose stuff was affected has to swear under penalty that the issuer's copyright claim isn't.
The burden of proof should always be on the party seeking to interfere with others' consensual transactions and freedoms!
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