Tag Archives: Copyright

Digital control gone too far

Posted on by

So my wife and I drove down to Modesto for this weekend. I wanted to test out using my phone with my car’s Sync, because I noticed it had a USB connection. I tried to start playing Pandora and my car told me Sync was unable to play protected content through this device. Let’s think about how absurd this is. I have an auxilary input into my car, so I can easily use a headphone jack to play the exact same music through the car speakers. The only difference is that I lose the ability to use the on steering wheel music controls. Digital copyright maximalists have decided that to allow microsoft to use Sync they must limit the devices that can play protected content. How assinine. This means that it is now les safe for me to play music because I can’t use the dash screen to see what music is playing or other controls to keep my eyes on the road. I own both the car and the phone and I’m paying for Pandora through ads. There’s no logical reason that I shouldn’t be able to use these products in this way.

This is a bit of a first world problem sure, but the same idea that is limiting my ability to use products that I own how I want them is shaping the rest of the internet and controlling how media (digital or print in some cases) can be used and consumed the world over. One of the more famous cases of late is the story of a guy that bought a book from Thailand and sold it in the US. The got sued because apparently that’s might not have been legal (supreme court thankfully ruled in his favor) another one is the idea that any software is merely a license and not actually a product that you own. In this case Autodesk sued a guy that was selling an old copy of AutoCAD that he’d never opened, on the grounds that he bought a license and the terms of service (which they can change at any time without you knowing or re-agreeing to) said that he was unable to transfer this license. This wasn’t a digital download it was a physical disk with the content on it.

I believe that because the US market is becoming saturated in many regards for these types of technologies, these companies are looking to turn these aging platforms, technologies, and content into a continual revenue stream. Instead of risking money to innovate they are turning into monopolists that are exhibiting rent seeking behavior. They must do this to keep their stocks from falling. Even the fabled internet companies that are supposed to be different aren’t. Amazon has been accused of limiting access to drive book prices down from their suppliers. Amazon limiting access to books. Think about that. Can you think of anything more abhorent than limiting access to culture and/or knowledge to gain a greater profit margin?

Should companies make profits, by god yes. Should we enable companies that have innovative ideas to enter the market? Definitely, in fact it’s an imperative if we want to avoid rent seeking behavior. I’m not always a fan of Lyft, Uber, and AirBnB but they are making a serious effort to confront entrenched businesses, archaic laws, and meet an obvious market need. So, let’s work to enable market competition and limit monopolistic behavior. The former is good for everyone, while the latter only for those in power.

Culture wars: the battle we didn’t know we’re losing for access to our culture

Posted on by

Our culture is being held hostage

Humans are a collection of story tellers. When we hang out with our friends, new and old, we spend a great deal of time telling stories. These stories define who we are. In cases where we first meet we try to find common ground through current events, current cultural experiences, like the Olympics – TV shows, books, and movies. When you know nothing about another person, these are the only basis you have for building an understanding of what they stand for and who they are. To be honest, in many ways they are terrible indicators of what type of person they are, but they can help you identify if that person is someone with a similar world view to your own. Once you move past those conversations you move on to personal stories. The things that made you laugh and, conscious or not , enter into a game of one upmanship. Now most of the time you’re just trying to find a similar experience to relate to theirs, but it can be misconstrued.

In many cases the only context you’ll ever have with the person is through a shared experience, access to our communal culture. Regardless of our awareness or how willing to admit it we are, we have cultural gate keepers. To access any of our current culture we have to pay to access it. That’s fine, the people that produced it should definitely get paid for the work that they did. However, the people we’re paying are necessarily the people that produced the work. We’re paying for internet access at least twice (if you have home internet and a mobile data plan). In some cases that means you’re paying the same company twice for access to the same thing (verizon wireless and verizon FiOS).

Additionally, these companies have no incentive to provide better access to the content that you want o see. It’s actually in their best interest to make it more difficult and have worse service, so that the services that you want to access will pay them again for you to access the service that you are paying to access. Furthermore, these same companies think that if you use the internet a lot you should pay a higher rate!

This isn’t really anything new. I’ve been saying this for a few years. But what drives this is rent seeking behavior, investors that don’t really know what’s going on, and arrogance.

Shrinking Public Domain

The public domain is the area of our culture that no one owns any more. It’s been published for so long that it’s free to be consumed by everyone. Disney hates this. The main reason is that Mickey Mouse should be in the public domain, or would be based on the laws at the time of his creation. However, Disney is not above using the public domain to make a lot of money. Here’s a list of movies they’ve created based on public domain (over 50). FIFTY movies based on the public domain – it’s great for a corporation to exploit the public domain, but if you try to do something you’re going to get sued.

I’ve written about Lawrence Lessig a lot, he’s a bit of a hero of mine. He’s got a lot of integrity and really pushes for what he believes. He recently was sued (he’s a copyright lawyer) and forced a settlement with the company. He’s one of the few people that can do this, he has the knowledge, the money, and the desire to do this. In many other cases, it’s up to pro bono lawyers to fight these cases because the person in the wrong cannot fight. It’s literally David vs. Goliath. However, if David is provided the right resources most of the time Goliath goes down.

This is the case we’re dealing with in the propose Comcast Time Warner merger. Where the people most impacted have little voices. Companies are pushing to turn more of our activities into opportunities to make money. Gamers that stream on Twitch are going to be pushed to pay more, Twitch is going to be pushed to pay more for high quality access for uploads and downloads, and the people watching those streams are going to be forced to pay for quality streams. This is our culture. We are people that don’t want to be controlled by cable companies. We don’t want to be forced to deal with this. Our needs are not being met by the market.

Because we’re disparate, companies and incumbents are winning the culture war. Most people aren’t aware that we’re in a battle over affordable access to our culture. Memes, TV shows, Movies, and whatever retarded shit we watch on the internet is our culture. Making it inaccessible is a battle our gate keepers are winning. We need to figure out how to fight back. I plan on switching from Comcast when I move and never going back. I plan on switching to T-mobile and never going back to Verizon. It’s time to put our money where our mouth is. It’s going to be painful, but without our support those companies can’t oust the incumbents and cannot force change.

We need to force change with our wallets.

Failure of DMCA and TPP is going to be worse

Posted on by

It should come as no surprise to many of my readers that I’m not really a big fan of DMCA. I believe that this law hinders innovation in the arts and sciences. I you are interested in a very nuanced and well articulated argument against Copyright, I suggest you download Lawrence Lessig‘s book Code 2.0 – it’s a law book, but it’s free and interesting. However, I have written about this topic before if you’re like a bit of a synopsis.

The DMCA is a law that requires companies to help copyright holders manage and protect their copyrighted material. This results in something called a Take Down Notice, where the company that receives the take down notice must remove the offending material. In many cases the copyright holders are requiring companies like Google to create tools to allow them to automatically search for offending material.

Growing number of Take Down requests

Growing number of Take Down requests accessed 1/5/2014

For a growing company like Twitch.TV which streams live video game broadcasts and services several hundred thousand viewers at once, may cripple them in the future. According to a recent George Mason University study, the DMCA take down notice process has been a complete failure. The law was never intended to function in the manner that it has been.

The take down notice was designed as a stop gap measure and compromise between copyright holders and the new technologists on the web. The DMCA was passed in 1998, most of the internet that we know and love didn’t exist then. It was likely that only a few people had even started using Google when the law was passed, YouTube was nothing more than a pipe dream, Napster and sites like it were the major driving force for this law.

Over the past few years we’ve had several attempts to expand on the DMCA and make matters significantly more restrictive on the Internet. For example we had the SOPA/PIPA, CISPA laws that the internet killed with a blackout. The blackout is an example of what Rebecca MacKinnon argued in her book “Consent of the Networked” where law makers need to look at the interconnectedness of the world and how these laws reach beyond our boarders and impact the broader world.

Unfortunately, these types of laws aren’t dead and DMCA isn’t going away despite what GMU recommends. Currently TPP is working it’s way through the “Fast Track Process” (fast track essentially allows the President to enter into trade agreements powers not authorized by the Constitution) and if it is successful there are copyright provisions that are very damaging for both Copyright Law and Patents. The copyright provisions are stronger than DMCA, similar to SOPA, and would force all signers to follow the rule of the trade agreement over their own established laws, including the US. If you are interested in reading TPP here’s the full agreement for download at Wikileaks.

What can we do to prevent TPP from making our copyright lives worse? Well, it appears there’s limited things we can do. Of course you can contact your representatives, however, Darrel Issa was already refused to see the agreement. However, more interest from the general population can only be a good thing. We’re going to have elections this year in the US, so it’s a good idea to get people thinking about this trade agreement now and stop it before it’s ratified.

New Economy vs. Old Economy – Creative Destruction

Posted on by

My last post on this the New Vs. Old triggered a far to brief conversation at work about creative destruction and when it’s “right” for creative destruction to occur. I felt that this was an interesting tact for approaching this sort of conversation. My colleague pointed out that when new businesses challenge laws that are in place just because you have to question if that’s “right” or not.

First, what is creative destruction? I wrote about this over two years ago, so I’ll forgive you not remembering. Essentially, it’s whenever new businesses figure out new innovative ways to provide a service or technology that causes the previous service to be obsolete. Today, it’s more popularly described as “disrupting a market.”

So, looking at creative destruction and the laws that spring up around a given industry I believe that on the extreme there are only two types of laws. Those that protect the consumer/public/end user/employee and those that protect the industry. That’s not to say that this isn’t a gradient where the impact of a given law flows from protecting the public to the industry or in fact does both.

For example, Copyright used to protect both the people that produce music and the public. It did this by guaranteeing a state sanctioned monopoly for a short time period and upon expiration the public would then own the work. This enable the creation of the music industry and helped artists grow and make money. It wasn’t perfect for either party, but it worked fairly well. We all know of stories of starving artists that died and then their works became popular. Well, currently those works still make someone money and that isn’t good for the public. Now copyright lasts as long as 70 years past the death of the original artist. This clearly is no longer protecting the public but is protecting the industry. I would argue that with how far the pendulum has shifted it’d be moral to try to push the boundaries of these laws and creatively destroy the industry. This is currently happening with the copyleft movement.

In the last blog I wrote about AirBnB and discussed Uber in the one before that. These are very different than the music industry. Most cab companies have something called a medallion, which is something like a certification of quality for the vehicle and the cab driver. These are very expensive and have essentially a dual function of protecting both the public and the taxi industry. Uber is challenging these laws because it is a “ride sharing” program where you hail a person going in the direction you are, pay them some money and move on. The purpose of the company is to reduce expense of moving around a big city like San Francisco, increase the competition of the market, reduce the number of cars on the road, and to make money a different way. Depending on your point of view it’s breaking the law. It’s being sued and will likely continue to be sued.

Is it “right” for this company to operate this way? Well, there’s the argument that you don’t have to use Uber at all, so if you’re concerned about the safety aspect you’re mostly covered. Since it’s a personal vehicle the general public is at no more risk than if the car was driving around with one person rather than two. The person is already on the road and likely would have been anyway, so if they suck at driving you’re no more or less safe. However, it’s still possibly in conflict with the law. It’s a new way to hail a “cab” and the taxi companies are having problems adapting to the competition. So is it right or wrong? In this case, I don’t really know. I think that it’s “Right” that a company is forcing taxi companies to evaluate how they do business and to challenge the laws that are in place to protect the taxi industry. I think there could be risks to the public, but they aren’t huge.

There’s another aspect that I haven’t talked about in this model though. A company like Yellow cab has subsidiaries in many different cities. While Uber is an application and it’s “cabs” are in any city where a person is a member. There’s a huge network effect benefit for Uber, they need to do little to no extra work and they can grow into new markets. Uber doesn’t control which markets they enter to some extent or how quickly they grow in a given market, they can grow as fast as the market can support the growth. Yellow Cab has a much different growth potential and can’t enter new markets as easily. If Uber is able to service an under serviced area shouldn’t we support that? Isn’t that “right.” Furthermore, with this rapid growth model it’s nearly impossible to know what laws they are going to be in conflict with until it’s already in the market. Ignorance of course is no defense, but it removes some of the intentional aspects of the creative destruction.

I think that there are certainly moral questions that need to be asked around new businesses and business models. We should continue to ask them and work to make sure that if a new company is disrupting and industry the result is equal or greater protection to the public and a balance between changing laws that protect incumbent industry and the new entrant.

Nintendo doesn’t get fair use

Posted on by

In the YouTube community there’s a bit of a kerfuffle over the fact that Nintendo has been doing two things. First, they’ve been taking down Let’s Play videos because of copy right infringement. The second is they’ve been putting ads on those videos they aren’t taking down. I don’t believe that either of these should be allowed. As always, I’m not a lawyer – keep that in mind.

Let’s Play videos are essentially play through of a particular game. Nintendo is claiming that they own the copyright to video because they created the content that is in the game, including the text, music, artwork, and characters. This is of course completely true. However, they don’t own everything in the video. The person doing the let’s play makes choices so, while the overall story arc is in fact the same, the manner in which the game is completed is unique and can happen in very different order. Which means if Nintendo owns the copyright of the way you play it, then it owns every possible way the game could ever be played. I could see that there’s some logic to that argument, however, it’s impossible to predict how the game will play out any given time and it also means that Nintendo also owns every time the player fails to beat the game and gives up.

If this was the only thing in the video, I’d say Nintendo has a decent argument, but even then it’s something of a remix, because things are being changed, events happen randomly that aren’t under Nintendo’s control, they set the parameters for something to happen, but they couldn’t predict a priori when something was going to happen or what items would be dropped at any given time – which makes the game different each time.

Furthermore, many of these videos have voice overs by the players. In many cases the players are talking about things completely unrelated to the actual game which Nintendo cannot claim as their own copyright. In many cases it is actually the YouTuber that is driving viewership to the video and not the game alone. Of course if you don’t like Pokemon you’re not going to sit and watch a 45 minute play through of Pokemon even if you find the person hilarious (or you might). It’s the personalities that make these videos valuable as much as the Nintendo game material.

I also think that Nintendo needs to put this in perspective of other mediums that people do a similar type activity. Think of someone analyzing a film, a book, or TV Show – in all of these cases there are direct quotes, clips of the video or whatever with pausing and zooming and highlighting and whatever. In addition there is custom material that the specific critic ads to the video which makes it something new. This constitutes Fair Use. These reviews make the film more valuable because it draws viewers to the movie, the is the same for video games.

Nintendo doesn’t understand this and it’s likely to be contested, eventually Nintendo will lose this and will have lost a lot of good will from the gaming community. This will end poorly for Nintendo.