Forget Home Taping: Evil Robots Are Killing Music!

from the i-for-one-welcome-our-new-innovative-overlords dept

The entertainment industry has a long and storied history of incumbents freaking out about every technological advancement that alters the market. From iPods and digital distribution, to VCRs and home taping, all the way back to player pianos, it seems like they've never met a device they didn't hate and fear. And they've yet to be right about any of them: whenever a group claims something is going to destroy the music or movie industry, that thing ends up expanding it instead. In the interval, they churn out scare campaigns and sob stories like "Home Taping Is Killing Music", or the laughably intense anti-piracy ads that run before feature films, or in the 1930s, depictions of a vicious battle between musicians and evil robots.

Yes, evil robots. Long-time reader Matt Novak points us to a blog post he wrote last month, showing off some vintage ads from a campaign by musicians against recorded music in movie theatres:

That must be a textbook symptom of technophobia. You should only be warning the public about robot tyrants if you are a) dangerously insane or b) John Connor. Of course, as we now know, synchronized sound massively expanded the film industry, which in turn created countless new opportunities for musicians—while at the same time, closely-related technology advancements were turning the recorded music industry into its own powerhouse. Today's entertainment incumbents have reined it in a little, preferring somewhat-believable lies over utterly fantastic ones, and focusing more on issues of "theft" than a supposed decline in the quality of the experience (they leave the latter up to technicians and weirdos like Prince). And yet there are still striking similarities between their message and the copy that appeared on those 1930s ads:

The time is coming fast when the only living thing around a motion picture house will be the person who sells you your ticket. Everything else will be mechanical. Canned drama, canned music, canned vaudeville. We think the public will tire of mechanical music and will want the real thing. We are not against scientific development of any kind, but it must not come at the expense of art. We are not opposing industrial progress. We are not even opposing mechanical music except where it is used as a profiteering instrument for artistic debasement.

Note the consistent refrain—"we're not opposed to technology and innovation, except that we totally are"—and the characterization of what they do as the entirety of "art". The more things change, the more they stay the same.

(By the way, there are several other amusing ads in the original post, and I strongly recommend checking them out.)

Filed Under: history, home taping, innovation, live music, live performers, movies, predictions

Chris Dodd: The Internet Developed Because Of Strict Copyright Enforcement

from the keep-digging dept

It's really quite amazing just how badly Chris Dodd still doesn't seem to get what happened in the SOPA/PIPA fight. Every time he opens his mouth to "explain" what happened, he just looks less and less and less aware of what actually happened.

His latest discussion on the topic came at the National Association of Attorneys General meeting in Washington DC -- a "friendly" audience for Dodd. His discussion starts around the 2 hour, 10 minute mark if you want to fast forward the video. For reasons that are unclear, CSPAN has disabled embedding on this video. Either way, Dodd continues to show off that he has no idea what happened. The specific "panel" that he's on is (of course) pretty one-sided. It involves him, old friend Rick Cotton from NBC Universal ("just think about the poor corn farmers!") and then two university officials to talk about how they're forced to censor the internet because of draconian laws that the MPAA pushed through (where there's at least a little pushback on the ridiculousness of copyright law, but just barely).

Dodd does his usual nod to the fact that the MPAA is "pro-internet" and "pro-innovation" and how any "solution" has to keep a free and open internet. That's funny, because the proposal he backed over the last year didn't actually do that. So, it's a bit late to say that now. And, next time, if he really wants to protect the free and open internet, perhaps invite some of the folks who actually built it to the table, rather than shutting them out, calling them liars and trying to dismiss their concerns. It might help people take him more seriously when he talks about how much he loves the internet.

He goes on to talk about how an example of "good" legislation was the kind that the MPAA shoved through a few years ago, forcing colleges and universities to become copyright cops. Not surprisingly, Dodd happens to leave out the part where the MPAA was so egregious in lying with bogus stats to get that law passed that it eventually had to admit it lied. Of course, that didn't stop the law from passing.

From there he launches into a defense of SOPA without naming SOPA. He takes us on a tour for the ages of bogus, debunked or misleading stats, in talking about just how evil "foreign rogue websites" are -- leaving out the actual facts, including that existing laws seem to be doing just fine in tracking those guys down. He neatly conflates counterfeit drugs and bulletproof vests with people downloading movies. Funny, because I don't think anyone's ordering bulletproof vests from Megaupload.com. On top of that, he claims that (unnamed) search engines are reaping billions in profits from these sites, which is flat out bunk.

He concludes by asking the assembled attorneys general for "help" in dealing with this "ever growing problem." Wait, I thought that the MPAA was insisting that the "problem" was getting under control... but now they're admitting that it's "ever growing"? Yeah, okay...

Rick Cotton's talk is no less ridiculous. He kicks off by telling the attorneys general that it's time to end "the wild west" of the internet, and that we can't think of the internet as "Somalia" any more. This is, of course, totally and completely ridiculous and Cotton should be ashamed for such blatant misinformation. After all, he's been a key player in helping to pass many of the 15 different copyright laws in the past 30 years targeting "piracy" -- with many focused directly on the internet. To pretend that the internet is "the wild west" is just flat out ridiculous. He quotes the bogus Mark Monitor report claiming tons and tons of traffic to infringing sites. And while he admits that Megaupload has been shut down, and that it represented a huge portion of that traffic, he ignores the point that this was under existing laws. And yes, he says this right after insisting the internet is lawless.

Rick Cotton is shameless in his disinformation efforts.

When they get to the question section, the first question is to Dodd about SOPA (which neither he nor Cotton mentioned directly). Dodd starts out with his usual talking points about how this was unprecedented -- that the bill had tremendous bipartisan support, and how SOPA was just about foreign sites (ignoring that the original draft of SOPA was not limited to foreign sites -- yay misinformation!). Dodd pretends that a bunch of these sites "learned" from the "over 300" domain seizures to set up in foreign territories -- ignoring that most of the sites he's complaining about have been around for much longer. He also skips over the bogus seizures and the questionable legality of the seizures themselves. Minor details, apparently.

He then states that it's unlikely that these bills will move forward this year, but "there are efforts underway" and he's hopeful that solutions to "this problem" are being worked on.

And he concludes on the doozy that I point out in the title, claiming that the internet itself would have been at risk if the tech industry had "the same attitude" to copyright as they do today:

The internet itself would have been in deep trouble, if you'd had this attitude about copyright twenty years ago -- where the very ideas that gave birth to this industry would be at risk.

Oh really? Which ideas? Ideas about freely sharing information and code? Ideas about not caring if anyone could copy your source code -- in fact requiring that such copying be allowed? To claim that the internet industry's view on copyright law has somehow shifted from being protectionist to not just shows, yet again, how Dodd has absolutely no clue what he's talking about on this subject, and should maybe take some time to talk to people who actually work in the industry before he makes a bigger fool of himself.

From there Mark Shurtleff, Utah's Attorney General, blamed the whole SOPA/PIPA situation on a "well-orchestrated" online campaign that was based on pure lies. Um. It's ridiculous to hear him say this after sitting through nearly an hour of lies from the pro-SOPA/PIPA camp. He even admits that his own kids argued against him. Perhaps he should listen to them, because it appears they were a lot better informed than their father. He notes that he's now afraid that any attorney general that tries to "stick his or her neck out" on these issues will get similar SOPA/PIPA treatment -- so he asks Chris Dodd and Rick Cotton to come up with "a plan" to help them.

That, right there, is pretty incredible. A US state attorney general, asking private industry how to help them avoid having to deal with the public speaking out against plans to censor the internet and attack internet openness. Wow.

Dodd responds by saying that the movie industry "needs to move into the social media space. We were not in that space at all." That's pretty ridiculous. The MPAA has a blog. I mean, they don't allow comments on it, and it's sort of the laughingstock of anyone who actually understands these issues, but they have that. They also funded and supplied the key employees for "Creative America" -- the astroturfing group that supposedly is trying to round up supporters for SOPA and had an active Facebook page and blog... though the Facebook page mostly involved discussions about just how laughable Creative America's positions are.

SOPA supporters had an online and social media presence. It's just that they didn't have reality on their side. That's the problem. If Dodd and the MPAA ever bothered to understand what actually happened perhaps he'd stop making these crazy claims.

Either way, the clear conclusion from this talk is that folks like Dodd and Cotton still have no clue what happened and still don't understand the issues at hand. They're still approaching this from the old way of doing things, where it's politics as usual. They're not interested in really understanding what the public was concerned about and they have no intention of actually listening to what was said. All of the strategies discussed were about "reloading" on their side, not about actually talking to the people who understand the internet. It's sad, but it means that SOPA and PIPA will be back, though as Dodd explicitly says "hopefully it won't be called SOPA any more..."

Filed Under: chris dodd, copyright, history, internet, pipa, rick cotton, sopa
Companies: mpaa, nbc

There Can Be No 'Balance' In The Entirely Unbalanced System Of Copyright

from the find-something-better dept

For many years now, I've argued against the idea of calling for "balance" in copyright law -- because I don't think it makes much sense. In articles from 2007, 2009 and 2011, I argued that by focusing on "balance" -- as many critics of copyright law do today -- we make a huge mistake. Arguing for balance is setting up the system as a zero-sum game where each trade-off involves a winner and a loser. But history has shown that not to be the case. It is not a zero sum game, and things that might make one side think they're "losing" might actually make them better off (take the VCR for example -- which the movie industry insisted was a horrible abuse of copyright law... until it became the key reason why the industry thrived).

Now, following the postponement of the Africa IP Forum, which came about, in large part, due to civil society groups arguing that the event wasn't "balanced" enough, lawyer Alan Story has put together an altogether brilliant condemnation of the talk of "balance" in copyright law, arguing that it is impossible to balance a fundamentally unbalanced system. Much of his attack isn't necessarily on the concept of copyright law itself, but on the nature of the Berne Convention, on which (tragically) much of modern copyright law is based. There's so much in Story's writeup that is worth reading that I recommend you go check out the whole thing, but here are just a few snippets and some commentary.

Every one of the central principles or elements of copyright is one-sided and unbalanced, that is, they favour the owners of copyrighted goods..... The main elements of copyright include the ideology that the world’s knowledge and creations should be owned as private property, that they should be traded as commodities in global capitalist markets, that copyright owners should have exclusive rights, that fair dealing /fair use principles mean what is fair to owners, that creativity will dry up without the incentive of copyright, that there are no alternatives to copyright, that spreading copyright regimes (and the stricter the better) benefits the whole world, and a few other foundational principles and justifications of this Western legal and philosophical export to the global South. Take away these principles and you know longer have copyright. Conversely, accept these principles and you have accepted 98% of the story that WIPO and the US Department of Commerce will be disseminating in Cape Town when their re-scheduled IP summit is held. All that is required, they suggest, is some fine-tuning, a bit of ‘tweaking’ around the edges of the remaining 2%.

Story argues that the entire system is based around giving a ton of power and control to the copyright holder (who, he notes repeatedly, is very rarely the content creator). A system "balanced" between the rights of "users" and "creators" would actually contain, you know, some rights for users:

If you have an hour or two in the next few days, read through Berne, clause by clause, and keep a running tally of: a) how many rights are guaranteed and mandatory to the users of copyright in every Berne Convention country? ; b) how many rights are guaranteed to the owners of copyright? The answer to question a) is very brief. Other than what is included in Article 10 (1) of Berne, namely, the right to use quotations already available to the public, there is not a single mandatory right that all users in the world possess, and even this narrow right is qualified. This is another reason why some of us believe that not only is the international copyright system grossly unbalanced, but it is also unbalanceable.

He also hits on a key point that many have talked about in regards to the fact that nearly all creativity builds on the works of others. That's a recognition that users are creators so separating out "rights of users" vs "rights of creators" ignores the reality that nearly everyone falls into both camps:

To pit the interests and rights of users against those of authors (again used as a term to designate all creators, whether composers, sculptors, or video game developers) is also a serious mistake. It is based on binary formulation which suggests that users of copyrighted materials are not also creators and that creators of copyright materials are not also users. To return to the same sentence quoted in point 3) above, where else do creators get the requisite tools for their work other than from ‘education, research and access to information’?

Story also points out a specific problem under Berne, in that beyond the fact that it doesn't actually establish any real rights for users -- just for copyright holders -- it makes the system even worse (significantly worse) by merely setting "minimums," with mandatory floors. That means that copyright generally can only be ratcheted up, not down.

The question of duration of copyright provides us with one easily-grasped example. The Berne Convention states that member countries must, at a minimum, establish a copyright term of life of the author, plus a minimum of another 50 years. As is sometimes not appreciated, this already is a very long period of time; it means that a pop song written this year by a 25-year-old songwriter could still be restricted by copyright in the year 2112. Yet it is perfectly legal for a country to extend its copyright term to life of the author, plus 100 years, which would restrict the same song until 2152. This is what Mexico has done. Or the copyright term could be raised until it was forever, minus one day. Consider what would have been situation if Egyptian government had gone ahead with its announced plan of 2008 to use copyright law to protect its pyramids as cultural property. The Egyptian term of copyright would then have become life of the author, plus 5000 years. Absurd? Yes. Perfectly legal, however, under the Berne Convention. Conversely, if a country decided to reduce its term to simply life of the author, which would still often leave a term of 30 to 40 years or even longer, such a law could result in that country being expelled from the Berne Union as well as the World Trade Organisation. Moreover, copyright owners might complain future years of royalty payments had been lost due to term reduction and claim their private property had been taken without compensation. Such a circumstance shows the impossibility of balance.

You can't have "balance" when the entire system is set up strongly to benefit one particular group. And the thing is, that "group" is rarely actually the creators. Again, Story provides some details:

As for the supposed rights which the copyright system gives to musicians in disputes with recording companies, consider what happened to two leading musicians of the past century. If, as already mentioned, Bob Marley (1945-1981), called the ‘Third World’s first pop superstar’ (Wenner), was unable to hold onto the copyright to many of his best known songs, what chance does the so-called average musician have? Or how about what happened to the path-breaking US bebop jazz pianist Thelonius Monk (1917-1982) who signed a long-term recording in 1962 with Columbia Records, a major recording label at the time. When the contract was over in 1970, Monk amazingly owed Columbia more than US$100,000. Copyright did not help Monk much.

There's a lot more in the article and, if you haven't done so already, I really encourage you to read the whole thing. Story is arguing something slightly different than my argument against balance, but the two arguments are related. My argument is that balance only belongs in a system where you have a zero-sum game and giving one side something automatically means another side gets less. If you have a non-zero sum game, then the goal should never be about finding the balance, but about finding the "maxima" -- the point on the curve that provides the most benefits. If you actually believe the (US-defined) purpose of copyright law to be to "promote the progress" then it seems that should be the goal.

However, what Story is arguing is that the entire system of copyright was never set up to be a balance at all, but rather as a system to grant powers to copyright holders against everyone else -- and that the Berne Convention, in particular, is particularly nefarious in how this is set up. I don't think our arguments contradict each other, but are merely just two different ways of noting that copyright law today is not about balance at all, and focusing on balance is a mistake, and doesn't really help the situation. Like Story, I'd urge even those pushing for copyright reform to avoid the use of "balance" in discussing copyright law, because you're already playing into the wrong framework.

Filed Under: balance, berne, copyright, history, one-sided

How The Guy Who Didn't Invent Email Got Memorialized In The Press & The Smithsonian As The Inventor Of Email

from the damn-you-wikipedia dept

Late last week, the Washington Post reported that The Smithsonian had acquired "tapes, documentation, copyrights, and over 50,000 lines of code from V.A. Shiva Ayyadurai, who both the Smithsonian and the Washington Post insisted was the "inventor of e-mail." There's just one problem with this: It's not actually true. Lots of internet old-timers quickly started to speak out against this, especially on Dave Farber's Interesting People email list, where they highlighted how it's just not true. As is nicely summarized on Wikipedia's talk page about Ayyadurai, he was responsible for "merely inventing an email management system that he named EMAIL," which came long after email itself. The Washington Post eventually offered the following "clarification":

Clarification: A number of readers have accurately pointed out that electronic messaging predates V. A. Shiva Ayyadurai’s work in 1978. However, Ayyadurai holds the copyright to the computer program called "email," establishing him as the creator of the “computer program for [an] electronic mail system” with that name, according to the U.S. Copyright Office.

Except... that "clarification" seems to confuse copyright with patents. Copyright is only over the specific copyrightable work created -- which would be the specific code he used. It does not, in any way, establish him as "the creator" of "the" electronic mail system -- merely an electronic mail system -- and hardly the first one. I could write some sort of email management software tomorrow and copyright that... and it would no more make me an "inventor" of email than Ayyadurai.

There's a detailed history of email over at the NetHistory site, and you'll note that Ayyadurai doesn't warrant a mention -- which isn't surprising since his work comes way after most of the important stuff was done. Thomas Haigh sent a detailed email to the SIGCIS list, breaking down what happened. Apparently, Time Magazine ran a profile of Ayyadurai a few months back, calling him "the man who invented email," which resulted in the Smithsonian's interest. But even that article notes at the beginning that Ayyadurai actually just holds a copyright on EMAIL, rather than email itself. It even asks about the fact that Ray Tomlinson is often credited as being the inventor of email -- and his efforts came much earlier.

Either way, it appears that Ayyadurai has played up this idea that he's the inventor of email, despite little to back that up (apparently frustrating many people who actually know the history). Yes, he copyrighted a particular bit of code, but there's little to support the idea that he had very much to do with "the invention of email" in any way. But, that's not what the Washington Post (or, apparently, the Smithsonian) will tell you...

Filed Under: copyright, email, history, inventor, va shiva ayyadurai
Companies: smithsonian, time, washington post

Why Piracy Is Indispensable For The Survival Of Our Culture

from the posterity-will-thank-them dept

Last Year Techdirt wrote about the case of the huge collection of historic jazz recordings that had been acquired by the US National Jazz Museum. The central problem is that even if the recordings can be digitized before they deteriorate, very few people will hear them because of their complicated copyright status.

But as this eye-opening article from Benj Edwards explains, bad as that situation is, it's even worse for the entire category of software creations. For example, consider the earlier generation of floppy-based programs:

Floppy disks, which were once used as the medium du jour for personal computers, have a decidedly finite lifespan: estimates for the data retention abilities of a floppy range anywhere from one year to 30 years under optimal conditions.

A floppy stores data in the form of magnetic charges on a specially treated plastic disc. Over time, the charges representing data weaken to the point that floppy drives can’t read them anymore. At that point, the contents of the disk are effectively lost.

This becomes particularly troubling when we consider that publishers began releasing software on floppy disk over 30 years ago. Most of those disks are now unreadable, and the software stored on them has become garbled beyond repair. If you’ve been meaning to back up those old floppies in your attic, I have bad news: it’s probably too late.

Actually, the situation is even worse than that, because software publishers in the 1980s spent a huge amount of effort trying to make it impossible to copy their programs, through the use of things like hardware dongles that had to be plugged into the computer, or intentionally-corrupt sectors on the discs. That makes the creation of backups a non-trivial matter.

Fortunately, getting around such schemes is just the kind of challenge that hackers enjoy, and this has led to efforts by enthusiasts to preserve these fast-disappearing cultural artefacts by transferring them from the old media to more modern storage. As Edwards explains:

For the past decade, collectors and archivists have been compiling vast collections of out-of-print software for vintage machines (think Apple II, Commodore 64, and the like) and trading them through file sharing services and on "abandonware" websites. Through this process, they’ve created an underground software library that, despite its relative newness, feels like the lost archives of an ancient digital civilization.

That's great, apart from one slight problem: under today's copyright laws, all these wonderful backups that will probably ensure the programs' survival while civilization itself is still around, are illegal. The choice is stark: follow copyright law, and watch decades of computer culture literally fade away on their unreadable floppies, or save them for posterity - and break the law.

Nor is this is a problem that only concerns antediluvian forms of computing. Our cool, smartphone- and tablet-based approach is no better:

take a look at the iTunes App Store, a 500,000 app repository of digital culture. It’s controlled by a single company, and when it closes some day (or it stops supporting older apps, like Apple already did with the classic iPod), legal access to those apps will vanish. Purchased apps locked on iDevices will meet their doom when those gadgets stop working, as they are prone to do. Even before then, older apps will fade away as developers decline to pay the $100 a year required to keep their wares listed in the store.

This is a deep and fundamental problem with not just computing culture, but all artistic expression that is locked down with DRM. The only way that its glories will be preserved for future generations is if considerate "pirates" make illegal back-up copies, stripped of copy protection. For DRM is a guarantee of oblivion: the term of copyright is so disproportionately long, few will care about breaking ancient DRM to make backups of long-forgotten digital creations when it eventually becomes legally permissible to do so.

Edwards concludes with a call to action:

If you see strict DRM and copy protection that threatens the preservation of history, fight it: copy the work, keep it safe, and eventually share it so it never disappears.

Some people may think ill of your archival efforts now, but they’re on the wrong side of history: no one living 500 years from now will judge your infringing deeds harshly when they can load up an ancient program and see it for themselves.

This is a crucial point: whatever qualms people might have about piracy now, posterity will have no doubts whatsoever. It's not simply that the supposed harms of piracy to culture are exaggerated, as more and more evidence suggests: it's that in the long term, piracy is actually indispensable for its preservation.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: archiving, copyright, culture, history, infringement, piracy

An Infographic Showing Just How Frequently Hollywood Has Cried Wolf About 'Piracy'

from the sky-is-falling,-the-sky-is-falling dept

A few folks have sent over this excellent infographic about the frequency with which Hollywood insists every new technology will destroy the movie business. It's based on the list that Steve Blank put together of Hollywood being totally wrong on lots of things: Figured some folks here might appreciate this...

Filed Under: crying wolf, history, hollywood, infringement, piracy, sopa
Companies: mpaa

The Pirate Bay Press Release On SOPA: We Are The New Hollywood

from the history-repeating-itself dept

Given its general contempt for the repeated attempts to close it down, you wouldn't expect The Pirate Bay to be particularly worried by SOPA. But in its very own press release on the subject, it goes much further: it flings the ultimate insult at Hollywood by claiming that not only are the two of them spiritual kin, but that The Pirate Bay is the New Hollywood.

Here's why The Pirate Bay thinks Hollywood is exactly like itself:

Because of Edisons patents for the motion pictures it was close to financially impossible to create motion pictures in the North american east coast. The movie studios therefor relocated to California, and founded what we today call Hollywood. The reason was mostly because there was no patent.

There was also no copyright to speak of, so the studios could copy old stories and make movies out of them – like Fantasia, one of Disneys biggest hits ever.

So, the whole basis of this industry, that today is screaming about losing control over immaterial rights, is that they circumvented immaterial rights. They copied (or put in their terminology: "stole") other peoples creative works, without paying for it.

And here's why Pirate Bay thinks it's the New Hollywood:

The reason they are always complainting about "pirates" today is simple. We've done what they did. We circumvented the rules they created and created our own. We crushed their monopoly by giving people something more efficient.

At the end of its release, The Pirate Bay admits rather drolly:

Some facts (years, dates) are probably wrong in this press release. The reason is that we can't access this information when Wikipedia is blacked out. Because of pressure from our failing competitors. We're sorry for that.

In fact its potted history of Hollywood is not so far off the mark. Here's a rather more rigorously-researched description of the battle between Thomas Edison, along with his Motion Picture Patents Company (MPCC) – basically a group of suppliers that tried to enforce a monopoly over cinema equipment – and Carl Laemmle's Universal Pictures that refused to knuckle under:

what ultimately did the Edison monopoly in was the assumption that its legal/technological dominance over the trade, and its moral stance, would trump the public’s demand for ever more creative motion pictures. Unlike the independents, the MPCC system did not invest in its network. Consumers would simply have to watch Edison Trust fare, the monopoly’s principals figured.

They didn’t. Instead, they flocked to Laemmle and his fellow independents' "illegal" movies, which were longer and of better quality. Even the Trust's inner circle knew this. "We… pass on pictures we know will get us nothing but unfavorable comments and cancellations," one confided. "We haven’t the power to throw out the distinctly bad pictures, nor the courage, because as poor as they are, they represent a certain sum of money invested in negative production."

Edison and his cohorts never understood that they were involved "in much more than an economic battle to determine who would control the profits of the nascent film industry," Neal Gabler writes. This was a conflict between an older generation of Anglo-Saxon Protestant inventors and a new generation of immigrants.

The parallels with today's battle between the MPAA (complete with its "moral stance") and Net-based "independents" like The Pirate Bay (with its DRM-free content), are clear. Once again, this is not just about who gets the money, it's a conflict between the "older generation" of movie companies with their "legal dominance", and the "new generation" of digital immigrants like The Pirate Bay that give the public what they want.

Call it Hollywood 2: The Sequel.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: disruption, history, hollywood, innovation, monopolies
Companies: mpaa, the pirate bay

Why Hollywood's Idea Of 'Innovation' Is SOPA

from the regulatory-capture dept

A ton of folks have been sending over Steve Blank's absolutely awesome detailed analysis of why Hollywood can't innovate... and the result is SOPA. It touches on many points we've raised separately, but puts it all together in such a fantastic and comprehensive package. Seriously: just go read it.

It kicks off by noting a key point that we've raised in the past, but which often gets underplayed: the vast majority of movie industry revenue these days comes from pay-per-view TV, cable, satellite, video rentals, DVD sales and online subscriptions/digital downloads. In fact, this is the part of Hollywood's business that it insists is most under threat from infringement. But, here's the thing: if the MPAA had had its way over the last century, none of those things would have existed. It fought tooth and nail against every innovation that resulted in those new and lucrative markets. Blank puts together a great historical list:

• 1920’s – the record business complained about radio. The argument was because radio is free, you can’t compete with free. No one was ever going to buy music again.
• 1940’s – movie studios had to divest their distribution channel – they owned over 50% of the movie theaters in the U.S. “It’s all over,” complained the studios. In fact, the number of screens went from 17,000 in 1948 to 38,000 today.
• 1950’s – broadcast television was free; the threat was cable television. Studios argued that their free TV content couldn’t compete with paid.
• 1970’s – Video Cassette Recorders (VCRs) were going to be the end of the movie business. The movie business and its lobbying arm, MPAA, fought it with “end of the world” hyperbole. The reality? After the VCR was introduced, studio revenues took off like a rocket.  With a new channel of distribution, home movie rentals surpassed movie theater tickets.
• 1998 – the MPAA got congress to pass the Digital Millennium Copyright Act (DMCA), making it illegal for you to make a digital copy of a DVD that you actually purchased.
• 2000 – Digital Video Recorders (DVR) like TiVo allowing consumers to skip commercials was going to be the end of the TV business. DVRs reignite interest in TV.
• 2006 - broadcasters sued Cablevision (and lost) to prevent the launch of a cloud-based DVR to its customers.
• Today it’s the Internet that’s going to put the studios out of business. Sound familiar?

But that's just the preamble to his piece. From there, he explains how the industry set itself up to be so anti-innovation -- focusing on regulatory capture to help block innovation. The story reminds me of Andy Kessler's distinction between political entrepreneurs and market entrepreneurs. Political entrepreneurs focus on connections in government to create protectionist policies. Market entrepreneurs ignore all that and just build cooler products. In the end, the market entrepreneurs win, but the political entrepreneurs can disrupt their lives for a while and make it difficult.

But the end result is SOPA/PIPA rather than technology or business innovation:

The SOPA bill (and DNS blocking) is what happens when someone with the title of anti-piracy or copyright lawyer has greater clout than your head of new technology. SOPA gives corporations unprecedented power to censor almost any site on the Internet. It’s as if someone shoplifts in your store, SOPA allows the government to shut down your store.

History has shown that time and market forces provide equilibrium in balancing interests, whether the new technology is a video recorder, a personal computer, an MP3 player or now the Net. It’s prudent for courts and congress to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude.

What the music and movie industry should be doing in Washington is promoting legislation to adapt copyright law to new technology — and then leading the transition to the new platforms.

I actually think Blank underplays this a bit. The MPAA doesn't just have a "copyright lawyer" with more clout than a technology person... it's that the entire MPAA is designed around anti-piracy, with a whole series of execs and staff whose sole job is "content protection" -- not business model or technology innovation.

Either way, I highly recommend checking out the full article.

Filed Under: copyright, crying wolf, history, hollywood, innovation, pipa, protect ip, regulatory capture, sopa
Companies: mpaa

Barnes & Noble Going Around Asking Everyone To Change All Links From Borders To B&N

from the really? dept

As you probably heard, Borders went out of business recently and Barnes & Noble purchased a bunch of Borders assets around its trademarks. Still, it was a bit surprising when we received an email this week asking us to change any links we have on Techdirt that go to Borders.com to redirect to Barnesandnoble.com:

Barnes & Noble recently purchased most of the Borders trademarks and intellectual property in a recent auction. As a result of this purchase, we started transitioning the Borders.com website to Barnesandnoble.com via redirects.

We noticed that your site is currently linking to http://www.borders.com/online/store/Home , and I’d like to reach out and ask you to kindly update your links to the corresponding URLs on Barnesandnoble.com. We have redirects in place for many Borders.com pages, so you can use that to help you determine the correct landing pages on Barnesandnoble.com.

To be honest, I absolutely could not recall ever linking to Borders, but I did some digging, and found that we did so... three and a half years ago in a post about Borders.com's last ditch attempt to try to be innovative with a different kind of home page. Because of that we linked to the front page of Borders.com. For a variety of reasons, it would be stupid to change that link. In the context of the story, it wouldn't make any sense at all.

But all of this makes me wonder why Barnes & Noble is wasting their time sending emails to people like this. If it wants to redirect people, just set up some redirects. Don't expect everyone to drop everything and go change ancient links.

Filed Under: history, links, revising
Companies: barnes & noble, borders

How SOPA Will Be (Ab)Used

from the in-case-you-were-wondering dept

Proponents of the Stop Online Privacy Act (SOPA) and its Senate counterpart PROTECT-IP often affect incredulity that anyone would "defend piracy" by describing their valiant attempts to stamp out "rogue sites" as a threat to free speech or innovation. Recording Industry Association of America head Cary Sherman, for instance, recently insisted to The New York Times that the bills are "specifically designed to focus on the worst of the worst sites whose model is predicated on theft." This would be more convincing if the content industries weren't so clearly continuing their long, proud tradition of making aggressive and overbroad copyright claims that would impede speech and innovation.

In the 80s, Universal Studios famously sued Sony to block the sale of Betamax VCRs, which could be used to "facilitate" the infringement of copyrights in shows and movies aired on broadcast television. Blocking VCR sales, of course, might also have strengthened the market position of the DiscoVision laserdisc system being developed by MCA, Universal's parent company. The Supreme Court eventually vindicated Sony, but Universal did manage to persuade one lower court to rule in their favor. If SOPA's blocking provisions could be implemented in the physical world, every VCR (and maybe every Sony product) would have stopped working after that first favorable ruling, until Sony could meet the burden of proving its innocence in a U.S. court. Of course, under a rule like that, consumers might have been wary of buying a VCR in the first place.

And today? It's the Universal Music Group heading to court, after using a dubious copyright claim to take down an embarrassing video in which pop stars sing the praises of the site Megaupload. Megaupload, you see, is a file locker site, and the recording industry has made it crystal clear that it's at the top of the industry's list of "rogue sites" that should be targeted under SOPA. Indeed, when the content industries talk about why SOPA is needed, they invariably cite file lockers generally as the very epitome of a "rogue site." It is, therefore, a little awkward to have their own artists pointing out the obvious: File lockers can be used by pirates to share infringing files, but also host an enormous amount of perfectly legitimate content, uploaded by users who would be effectively silenced (and cut off from their own files) if the entire site were blocked. Similarly, the recording industry thinks copyright gives it the power to veto cloud-based music storage services, which serve as a kind of virtual hard drive from which users can remotely access and play their own legally purchased and uploaded music. It's a great convenience for consumers—but the labels think they can use copyright to stop it unless they're paid a cut.

We might also look to some of the seizures of U.S.-registered sites by Immigration and Customs Enforcement. The sports site Rojadirecta—registered in the U.S. but based in Spain—was seized on the theory that linking to infringing video of sporting events hosted elsewhere on the Internet is enough to trigger forfeiture, even though Spanish courts have repeatedly ruled that such conduct (however shady it might seem) is legal in Spain. As lawyers for the government argued, invoking the very same statute that would provide the basis for SOPA censorship:

"[A]ny property used ... in any manner or part to commit or facilitate the commission of an offense [such as criminal copyright infringement]" is subject to forfeiture.... Moreover, it is "[i]rrelevant whether the property's role in the crime is integral, essential or indispensable,"... and a single incident of facilitating criminal activity is sufficient to trigger forfeiture.

The government further notes that they're not directly charging Rojadirecta with criminal infringement (nor indeed do they ever have to bring such charges), which means no need to meet that pesky "beyond reasonable doubt" standard—or even "probable cause". All the government needs for forfeiture, they assert, is a "reasonable belief" that a domain is being used to "facilitate" criminal infringement. This despite the fact that, in the context of obscenity laws, the Supreme Court has held that "Mere probable cause to believe a violation has transpired is not adequate to remove books or film from circulation." Now, Rojadirecta's business model is certainly shady, and maybe they're even guilty of criminal infringement. But are we really comfortable with an entire domain, including vibrant discussion forums that clearly enable protected, non-infringing speech, being blocked pursuant to a "reasonable belief" standard, forcing the company to hire U.S. lawyers and prove their innocence to win the right to speak to U.S. users?

Then there's the case of Dajaz1.com, a hip hop blog seized for over a year by the government for hosting infringing music files. Except it turned out that those files had actually been provided by PR firms, working for the music labels, who hoped blogs like Dajaz1 would circulate them to create buzz for up-and-coming artists. Oops!

As legal scholar Jason Mazzone has amply documented, the use of dubious copyright claims to chill legitimate speech is depressingly common. The voting machine manufacturer Diebold has tried to use copyright to shut down whistleblower sites that published internal e-mails highlighting security vulnerabilities in software that could determine the outcome of elections. The Church of Scientology has similarly invoked copyright to stifle criticism. In Russia, political opposition groups are routinely raided under the pretext of searching for copyrighted software. Research suggests that most copyright takedown claims to search engines like Google are issued by companies targeting their competitors, and that nearly a third of takedown notices under the Digital Millennium Copyright Act lack a clear basis.

I could easily fill a dozen long blog posts with examples, but let's cut to the chase. Major movie studios and music labels draw a lot of water in D.C.: the fact that a bill as massively unpopular as SOPA is even being seriously considered, let alone likely to pass, is proof of that. They will effectively control which foreign domains the Justice Department chooses to block directly, and shop around for friendly judges amenable to rubber-stamping orders in civil litigation that require payment providers and ad networks to cut off disfavored sites. The likely targets are their competitors, whether the copyright claims are valid or not. Sites like YouTube that provide entertaining user-generated videos are one less reason to pony up for the next lackluster Adam Sandler movie. Sites that give musicians a way to gain exposure to fans and market their albums without giving a cut to the increasingly redundant middleman threaten to make the labels obsolete. And if open platforms invariably end up hosting some infringing content uploaded by users? Well, that's as good a pretext as any for shutting down the competition.

Why do critics of SOPA worry that the bill will threaten legitimate speech and innovation? Because its supporters have spent three decades providing overwhelming justification for that fear at every opportunity. If I may end by making a bit of "fair use" of the genius of former Smiths' front-man Morrisey:

He was a sweet and tender hooligan, hooligan

He said that he'd never, never do it again

And of course he won't, oh, not until the next time

Empowered with the ability to threaten blocking of entire domains, I'd rather not see what the copyright hooligans do "next time."

Filed Under: abuse, censorship, copyright, history, pipa, protect ip, sopa