| Monday
July 31, 2000
Andrew Binder abinder@fau.edu
The problem with all of your intellectual property
arguments both pro and con is that there is already a large population of
artists that gain very little remuneration for their production from the
current delivery systems.
In this case I am referring to visual artists. In
the fine arts you make a painting and through a gallery you may sell it.
When that work gets resold the original creator gets no resale royalty
even though the markup might be several thousand times the original
markup. The creator only gets limited royalties for the image if it is
published by a reputable publisher. Enter the internet. Now it is even
easier to cheat the original creator since no system has been created to
pay for the images. Yes the creator can file for copy write protection and
enforce same but that all costs money and in terms of images nobody seems
to think that downloading them (maybe since they are already cashed in
your machine) is theft.
Remember that some of these artworks were created
with as much effort that you put into your books.
Where is the justice in any of your schemes and
arguments when one of the largest branches of the arts always seems to be
left out.
This arrangement only helps the gallery system and
only hurts the little fish artist, since the big guys can always protect
themselves. For myself I am curious how the rest of the creators will
react to being cheated on such a large scale. After all we are the
starving branch on the tree of the arts, and we do get by.
What would happen to the other arts when they can
only sell the works just once in a buyers market, and only the
distribution system reaps most of he profit.
Sounds really scary to you (I am sure), but painters
live with that reality daily.
Maybe all the lobbying from the other branches of
the arts will finally be to our benefit once all of the arts will be in
the same boat.
That is actually what I am watching (and hoping)
for.
Love the Books.
Andrew Binder
Excuse me, but why this tone with
me? As President of SFWA I did my best for the artists, but at the
time I told them to form their own professional association, because our
interests were not identical and I didn't have time to look out for
everyone. Why your problems negate what I have said on the subject is a
bit beyond me, nor do I know why you think it appropriate to berate me as
if I were the source of your difficulties.
Good Morning Jerry.
I hope you can stomach yet more Napster dialogue.
Metallica was right in naming the users that were
trading their music. For every song available for download through Napster,
there's a user offering it up. Sure, making a copy of a cd for your wife's
car, or for your son, is probably pretty safe under fair use, but sharing
a song with twenty million of your closest friends probably goes a bit
beyond the pale.
Hammers and screwdrivers aren't burglary tools until
they're used in a burglary. I can tool around all day with a hammer and a
screwdriver in the trunk of my car, but when they're found next to a
stolen mink and pearls, then I'm charged with possession of burglary
tools. Likewise with camcorders. There are those individuals who would
rather pay ten dollars for a VHS tape dubbed from a camcorder tape of a
movie shown in a theatre than pay the $8.50 to go to the theatre, or wait
4 weeks and pay the $5 to go to the second run theatre, and yet camcorder
manufacturers are not sued for contributory infringement.
What percentage of infringing use vs. noninfringing
use is allowable?(*)
But there are better solutions than litigation.
For starters, the RIAA collects a 2% levy on all
audio DAT tapes and audio CD-R blanks under the Audio Home Recording Act,
to go into a fund to redress artists for losses to alleged piracy and
counterfeiting on that media. The vast majority of this money is
distributed according to sales statistics, not piracy statistics. It
doesn't take a rocket scientist to see what to do next: collect piracy
statistics from Napster, and distribute a portion of that redress fund to
the artists accordingly.
That idea can even be expanded by having Napster
branded CD-R blanks, of which, 5%-15% of the profits go to artists who are
traded on Napster.
Napster has 20 million users, each of whom
communicates with one server or another. If Napster wants to build in a
money transaction mechanism, they can, and make online purchasing, at
least within their service, a reality.
However, before any money starts changing hands,
Napster needs to add some finer granularity to their searches. As it
stands now, Napster simply searches by filename. They'll need to register,
and support searches for the ID3 tags that are contained in many MP3
files. There's no guarantee that you'll actually get the song you were
expecting (some clown may have simply recorded himself singing 'Happy
Birthday' and called it 'Nothing_Else_Matters_Metallica'), nor is there
any guarantee that the song is of listenable quality. All in all, the
service is on a par with radio taping (a decidedly legal activity) as far
as quality and convenience goes.
All of which leads me to wonder, why didn't the RIAA
approach Napster with sacks of money to develop the online music commerce
program they want? Buy out the company, add server side protection and
e-commerce capabilities to the service, and launch a big label blessed
music commerce solution. Sure, server side security isn't as totally
complete as client side security, but you can implement it, implement it
now, and make it transparent to the users. You'll lose something to
piracy, but that's different than the staus quo how? I doubt that it would
be any greater than their current losses to counterfeiting, and there will
always be somebody, like the viewer who buys the $10 camcorder dub instead
of a movie ticket, who will take it for free.
If you can hear it, you can record it, and the more
inconvenient record companies make it for consumers, the more consumers
will try to get a free ride. The first rule of technology is that the most
convenient technology wins.
And for every perceived inconvenience to the
consumer ("So I need a MagicGate(tm) player to listen to Sony music,
LiquidAudio to listen to BMG music, and Windows Media Player to listen to
EMI music? Lemme just go download the mp3s."), and for every tale of
contractual accounting that sounds like a movie studio rebuttal to a SAG
audit, and for every unlisted and out of print song in a company's
catalog, the consumer is going to debit that against the 'moral authority
of the law'. Sure it's rationalization, but it's also human nature. Make
it easy for people to follow the law, and the majority of them will follow
the law.
To listen to the RIAA, you'd think they expect to
take a thumbprint every time you want to play some music.
This is brand spanking new territory. Book on demand
is here, and maybe (usable and affordable) electronic books will be here
soon. There's a program that lets me record a DVD movie to my hard drive
for later viewing. Right now it takes about 9-18 hours to do the
recording, and the resulting file is too big for any but the fattest
pipes, but those limitations will eventually drop. Should you be allowed
to zap a DVD movie over to your laptop hard drive for viewing on the plane
when your laptop isn't equipped with a DVD drive?
One thing is sure, we're now seeing the beginning of
the end of prefab pop uberstars, music will become nichefied, and even
regionalized, as there'll be no return for the expense of a nationwide
promotion. After several pay-per-single experiments fail, we'll likely see
subscription services pop up, such as deejays used in the eighties. Live
performances will become an even larger portion of a musician's income.
Hopefully we'll see the rise of the middle class musician, the musician
who can make a decent living performing and selling music without needing
multiplatinum sales.
There'll still be a need for record companies, but
they'll be a much leaner sort of record company than we're used to seeing.
They'll look and act more like agents, handling more of the business side
of things on behalf of the musician, rather than the musician being
beholden to them.
But in order to get there, we have to wade through
the muck.
On July 11th, the ranking members of the Senate
Judiciary Committee held a hearing on digital music and the internet. It
ran for 2.5 hours, and present were Senator Leahy from Vermont, and
Senator Hatch from Utah. Your own Senator Feinstein showed up for the last
half hour to parrot her constituents' refrain. The most noteworthy data to
come out of those hearings is that both Senators Hatch and Leahy have a
very good understanding of the issue. Senator Feinstein represents
California, so she's expected to be on long term lease to the likes of
Sony Music and Capitol Records. Another pleasant surprise was learning
that the spirit of the Digital Millenium Copyright Act was supposed to
encourage the distribution of content as widely (note: not freely) as
possible on the net, and Senator Hatch, at least, is disappointed that
that's not occurring.
A Realvideo copy can be found on cspan.org in the
business and economy section for July 11. http://www.cspan.org/business_economy/index.asp?Recordset3_
Next=Next&;Recordset3_Action=++&;Recordset3_
Position=FIL%3AORD%3AABS%3A11KEY%3APAR%3A&;Recordset3_Looper1_State=10
[With a URL that long who cares?]
Or you can simply read the opening remarks of the
participants as entered into the record: http://www.senate.gov/~judiciary/hot_topics.htm
What, you were expecting answers maybe? I'm smart
enough to know I don't have them. I know that writers have done a much
better job at holding on to their rights than musicians have been able to.
I know that interesting times lay ahead. I know that record companies are
going to do whatever they can to keep as much of themselves between the
musician and consumer as possible. Beyond that? Interesting times. Feel
free to print this
Bruce Dykes bkd69@yahoo.com
Good discussion. Thanks. And
see below.
How can you not be concerned with the government
monitoring what takes place? Should not privacy be respected and
protected? The fact that ISPs have similar technology should not make us
feel any better but rather be outraged. What right do they have to monitor
what I or anyone else is doing. Plus if these programs had been installed
on the ISPs that have been hit in recent hacker attacks, it would not have
stopped them. Their attack would of been different perhaps, but with the
same end result. The one thing about tecnology is that it is all completly
manmade, which means if someone is intelligent to make it, then there is
bound to be somone else who has enough inttelligence to break into it. No
amount of monitoring software is going to stop that. If things keep going
the way they have been we will soon be in a police state.
--Ted--
tnichol5 [tnichol5@utkux.utcc.utk.edu]
I cannot imagine what I have said
that would trigger that, nor can I make a lot of sense out of it other
than outrage. I thought I made it pretty clear that governments have no
rights to search without a court order. I don't much care for the way the
warrant system has evolved either, but not all problems can be addressed
in all essays.
Hi,
A little fuzzier than your usually crystalline
thinking.
I see several problems with Carnivore. The primary
one is that voice wiretaps/traces only give you the content/addressing
information of one phone. A packet-sniffer, to work, has to search *all*
the traffic going over a server. All it takes is one warrant in the
jurisdiction of each major ISP, and the government has access to virtually
all e-mail in the country.
Also, as your other reader pointed out, government
snooping is different from private snooping. ISPs don't have much
incentive to read e-mail (there's rarely profit in it). Governments have
built-in incentives to spy. That was a limited problem with voice
wiretaps, because of the laborious nature of such wiretapping. IP
wiretapping is fast, easy, almost impossible to monitor. The potential for
abuse is severe.
I'm attaching a column I did on Carnivore.
Thanks for your thoughts, as always. I'm a long-time
reader.
Yrs,
Paul Coe
-------- Paul Coe Clark III Editor, Communications
Today pclark@phillips.com
www.telecomweb.com
O, I understand your point. Mine is
that the technology will always outrace our efforts to deal with it, so
that Eternal Vigilance is more important now than ever. We are not going
to defeat the enemy once and for all.
I had a similar discussion with
Clinton's White House staff people in 1993; they wanted all kinds of
power, and they [these anyway] thought they were good guys, and that
Clinton was a good guy, and no one would ever abuse this authority, and
they needed the power to track down criminals and child molesters. I
said then in the old paper BYTE that one needed to watch such people,
particularly those with high minded reasons.
If you'd sent the Techweb URL for
that I could put it up, but I can't post a page.
Incidentally, the government pretty
well already has access to anything it wants. Of course they will never
use that without warrants, and I am Marie of Rumania.
Hi Jerry,
Your latest troubles are classic Pournelle. You
treat all your computers like they were toys, but thanks for sharing it
with us. You must have "best of breed" stamped on your forehead.
In a perfect world that would be nice, but it doesn't work in the real
world in you want any kind of reliability. This isn't MS-DOS anymore, and
it's very complicated. It would be like holding IBM accountable for
anything you downloaded from the Internet and tried to run on their S-390
machines. They would laugh at you. I'm laughing with you because I am
guilty of the same thing, but only on my computers, never on my clients
computers. I learned my lesson the hard way with RBase. You do it for
material to write about and I love it. I do it because I might find value
in the program, and I'm confident that I can fix anything it trashes, and
I'll learn something from the experience. Knock on wood.
I am so tired of hearing whining from the uninformed
that their NT servers crash twice a day. I'm sorry, but mine run forever,
and never crash unless I ask for it. I can crash them on command. All I
have to do is download a half-assed piece of software and run it, or in
the case of RBase, install it. Microsoft did a study and found there was a
factor of 10 in the reliability of the server depending on if it was
treated as a mainframe or a toy. The Windows Logo on the srinked wraped
box means something. The statement designed for Windows 95/98/NT/W2K
doesn't mean a thing other than I hope I got it right. In most cases, they
didn't. You know that, but you push the envelope for material, go for it,
but be prepared to spend some long days and nights.
Microsoft has just released their data center server
edition of W2K, and it's very firm in the hardware and software
specifications. Install something other than the approved solutions and
it's your server, not theirs. It sounds fair to me. What's your opinion?
Harley
Harley Lawrence <mailto:hlawrence@planetkc.com>
Senior Systems Engineer, BSEE, MCT, MSCE, MCP + I
This seems to be my day for being misunderstood, and
having everything taken in an odd light.
First, whatever makes you think I
treat all my computers like toys? I always keep enough equipment unchanged
to allow me to get my work done; for the rest, experimenting with new
stuff is WHAT I DO. I get paid pretty well to do it, too. How the devil
was I supposed to come up with anything real to say about the Plexwriter
if I didn't USE it? It was very clear, and I made it clear, that
dropping it into a Windows 98 system would work. The question was, not is
Plextwriter a good device -- it is, they are -- nor whether I recommend
Plextor CR-RW devices -- I do -- but whether the claim that this time for
sure regarding Direct CD and Windows 2000 was true. And it
wasn't.
There is yet another version and
they say THIS TIME FOR SURE, and I suppose I will have to try than one
too; I have downloaded it and I just haven't had both the time and the
nerve at the same moment, but I'll manage. How is that treating my
systems like toys?
What in the world would it mean to
have "best of breed" stamped on my forehead, and what would it
mean for that to "work" in the "real world" whatever
that is? I thought I lived in quite a real world, a bit chaotic with
34 computers and several operating systems, but still quite real. I
thought I ran a real small business, that pumps out many thousands of
words a month, publishes a web site, does digital imaging, manages email,
writes checks and pays bills and keeps books. Why is my world not
real? Why is yours more real than mine? What the heck are you
trying to say?
I had not noticed that I said my NT
servers crash twice a day. I thought I had made it pretty clear that until
I had hardware problems, one dual Pentium Pro system had run for a couple
of years without ever being shut down, and was only reset when we put in
new service packs including the Y2K pack. Another, Spirit, has run for
about 4 years now and except for upgrades of service packs, and the time I
went on an overseas trip, hasn't been off line in all that time.
Didn't I make that clear enough?
NT servers work well and reliably
until you do things to or with the hardware. It's possible to crunch
one by doing things with another machine, but it's not usual. On the other
hand, I did manage to crunch a Windows 2000 Professional workstation
through mapping a disk drive to a foreign system and then having the
external system flake out, and I reported that. Should I not
have?
I don't understand the rest of your
reference. I am sure Microsoft as well as IBM would be happy to
laugh at their customers, but I am pretty sure neither thinks that a very
good business practice, nor do I.
Why do you think you are telling me
things I do not know when you say that experimenting with software that
doesn't have the Microsoft Approved sticker can cause problems? Do
you think there is anyone in my readership who doesn't know it?
Certainly I do, and I would be astonished if I have any long term readers
who don't; I thought many people read me because I do all these silly
things so they don't have to.
My apologies for being irritated,
but really, telling me in breathless tones things we all know is a bit
annoying; perhaps you didn't mean to do that. Shall we start over?
What do you mean, treat like
toys? And why is the world I live in not real?
The interesting
thing about the whole Napster debate is that nobody involved is exactly
covered in glory.
Courtney Love's screed at Salon has a
lot of truth in it. Most pop artists are young, in their early 20s, and
totally inexperienced in the ways of the world. So they get outlawyered by
the music companies. They have no guild or union to look out for them,
unlike salaried musicians (like symphonies, Broadway shows, etc.), who do
and have well-defined recording rights. Few pop artists last longer than a
couple of years, but the ones that do tend to get wise and realize that
they are the cash cows and demand to hold on to some of the milk. Then
they act as though the young artists are the enemy.
The big music company execs want to
hang onto their lunches at Spago, private jets and limos in any way
possible, even to engaging in conduct that would get most of us thrown in
jail (if Love's account of the DMCA "amendments" is correct).
They are scared, scared hustlers that don't understand the issues that
confront them and seek a legalistic solution to a technical and marketing
problem. They claim huge losses in sales near college campuses due to
Napster, but I have seen reports that if online sales are accounted for,
CD sales are up near colleges.
The Congress has, for the most part,
thrown up their hands and adopted whatever their donors want - few lawyers
(as most politicians are) understand technology and few of their staffers
do, so they rely on the lobbyists to "help out". The Napster
folks are producing a product that, for the most part, is being used by
college students to violate the copyright laws. Their protestations of
innocence are akin to Captain Renaud in "Casablanca" - "I'm
shocked, shocked to find gambling going on here!" "Your
winnings, Sir." The MP3 traders are engaging in IP theft, even if it
is of bad quality, bigger pipes will make exact digital copy swapping
feasible.
Bruce Dykes hints at a possible win-win solution for
most concerned: effective online purchases and niche marketing. A good
example is the Grateful Dead. They broke all the record company rules and
still made excellent money. They allowed taping of live shows, even
providing the space and power. They encouraged non-commercial trading of
taped shows. They didn't spend on A&;R payola to radio chains.
Yet they still made a lot of money by touring, selling live performance
CDs by mail and the net, and by control of their IP. (They came down hard
on counterfeit T-shirts, but made it easy to get licenses, for
example.)
Other performers have gone similar routes (Phish).
There are a few small record companies that are making the transition to
supporting Bruce's "middle class" performers - artists who do
reasonably priced live shows w/o fireworks and huge supporting casts and
release studio albums done with small budgets that can turn a tidy profit
with 5-10k units sold. (I have a CD of acoustic guitar that was master
recorded on a $1000 digital mini-disc system in the artist's garage. It
sounds as good as his work done in a pro studio.)
Some are experimenting with selling by subscription.
Some release "internet fan only" CDs of live and studio work
with print runs of 2500 or so, again with a reasonable profit. These
artists, older, wiser and ignored by the big companies since they won't
sell a million copies to teens, may lead the way in finding a middle
ground for us all. If the lawyers don't screw it up for us all.
Book publishers ought to be watching closely - their
turn is next.
Edmund Hack "I'm not an actor, but I play one
on TV."
I seen nothing whatever to argue with in that. I
emphasize again, though, a created work should be at least partly under
the control of the creator: fuggheadedness on the part of the artist is no
excuse for ripping him off. Publishers, on the other hand -- if an artist
says "By all means put my works on Napster, the publisher is taking
all the money anyway and can go to hell," then I think the ethical
(although perhaps not the legal) ground shifts no matter how much the
publisher protests.
RIAA has acted stupidly. It is interesting to see
the number of people who condemn Microsoft for taking advantage of
competitor stupidities but will insist that the recording studio
stupidities give their customers the right to swap their property.
Mr. St. Onge insists that I am inconsistent
because I sometimes record an episode of Buffy so I can watch it at a
different time and I may not watch all the commercials, but I condemn the
practice of taping stuff off the air and then swapping copies of the tape
for yet more episodes, eventually involving thousands of people I never
met. I find that bizarre, and I doubt that anyone including him is unable
to see the difference.
I don't know the answers to all this; but I
suspect everything that needs to be said has been said, so unless
something new comes up, I regard this topic as pretty well closed.
And so soon as I say that, comes this:
One additional point about the DMCA... its
restrictions on "access controls" disturb me more than any
copyright protection, and Napster was probably legally doomed (and
misguided) from the get-go. However, giving access restrictions the force
of law - of copyright law, yet, instead of contract law! - is a fairly
frightening extension of the definition of copyright.
You have commented in the past on Microsoft's new
software lease-style contracts as a negative development. Think about the
same thing applied to the entertainment industry. A movie studio can
easily release a film on digital medium, run it through a simple algorithm
that relies a one-use key, and charge you each time that you would like to
use it. Even if the algorithm was completely trivial, if it's defined as
an "access control", then breaking it violates 17 USC 1201, and
you've just incurred thousands of dollars of legal liability to the
company.
Fortunately, the market is intelligent enough (or
paranoid, which worked out the same way) to reject DIVX, the MPAA's
attempt at this sort of marketing structure. People are generally touchy
about things that impinge on the first-use doctrine, thankfully.
Pay-per-use is not the only kind of onerous
restriction that may be added, however. I bring up region coding of DVDs
as a prime example of how these restrictions may be used to effectively
deny users the right to actually use product for which companies will
readily accept payment.
My work involves translating Japanese animation.
Obviously, it's a large advantage to be able to view Japanese DVDs, since
that is the best format that a company can afford to let me take home to
watch. However, Japan is in Region 2 and I am in the US, Region 1. This
leaves me with several unpalatable choices...
1) I can purchase a Japanese DVD player, hope that I
don't have any electronics problems with the voltage change (admittedly,
rare), warranty support in a language I can't read, trans-Pacific shipping
charges, and whatnot.
2) I can purchase one of the very few US DVD players
that come equipped with measures to circumvent the region coding, such as
the Apex A600A. It's a poor player as far as quality goes, and I'd be
embarrassed to support its release except for this feature. Incidentally,
new models of the A600A can no longer perform this function... disabled by
the manufacturer, under threat of lawsuit from the MPAA. Surprise,
surprise.
3) I can modify my American player, which is likely
a violation of the DMCA (at least, the MPAA holds that it is, and nobody's
gone to court on it yet.) I don't know how to do this, so I have to get
parts from another law-breaker, or information from another law-breaker
(and the act of getting the parts or information is ITSELF a violation of
the law, mind you.)
All this to play a disc that is, in format,
identical to software that my current machine can run, aside from one
small bit that tells the machine not to run it.
As an anti-piracy measure, DVD region coding is a
joke; it is a trivial matter to produce a region-free DVD and that's
exactly what existing pirates do. Its only major effect is to segment the
world market for DVDs into smaller chunks, from which the MPAA's member
companies can extract the maximum profits through differential prices.
Of course, if a given product is not available in
your particular region, you're out of luck. This is why my company
releases (legitimate) DVDs without region coding, so as not to burden our
consumers, wherever and whenever possible.
In this way, the MPAA uses a law to force me to go
to great extremes to enjoy a product that, presumably, my purchasing
dollars have given me the right to enjoy. This is neither a public good
nor a public service, nor does it serve any purpose in the interest of any
group other than the hardware manufacturers that set up the DVD consortium
and the movie producers of the MPAA.
I've gone on at length about one possible
restriction - it's a trivial exercise to imagine others, and not much more
difficult to find other examples of this in use today. Even in contract
form, this would be upsetting, but at least there a judge could find the
terms onerous and throw them out on a case-by-case basis. The DMCA doesn't
work like that, I'm afraid...
Andy Kent
Thanks!
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