DISQUS

Tim, thanks for the defense, even if it was for PFF and not for me personally. (It kinda sounds like, "Well, just because Patrick is a fascist doesn't mean my friend Adam, the TLF founder, is one!") I've recalled why I don't comment at this site, it is a place for personal attacks, not commentary, unless of course you agree with the groupthink, in which case it's a lovefest.

I will respond to the comments addressed to me above and then withdraw from this post and frankly, once again, from TLF.

To Doug, my mother was introduced by this discussion because she is the best-selling author of 95 novels; through her I developed an appreciation for creation and copyright, and learned a bit about the publishing industry, probably more than anyone blogging here (I don't claim to know near as much as most here about the software industry). So no individual is more relevant to me in this debate. As for my kids, I apologize if I see a moral thread here; I'll admit I am nearly alone in the US in seeing a moral rights role in copyright and I was making a moral point. If you don't like my intellectual arguments on copyright, fine, but I would prefer you not question my right to hold moral beliefs.

To Doug and enigma, you fail to understand that I do not feel copying an entire book is fair use, regardless of final intent, thus I think the copyright holder must be contacted. I said that in my first post. If a court finds otherwise than Google, or me, or Tim, or anybody can copy an entire book and release snippets because then it is fair use. Merely declaring something is fair use doesn't make it so under the law.

enigma, thank you for calling me ignorant of the Constitution for saying the court will determine whether this is fair use. In fact, fair use doesn't appear in the Constitution; it comes from the Sony case, and even then it is limited. Does Google pass the four prong test? A court will decide that, as other fair use cases have been decided. You might want to read Tim's paper attacking the DMCA; in it he argues that courts are the best place to resolve such matters.

As for the free press, I'm not sure what this case has to do with a free press, unless you think works from a "press" such as a book should be "free" to Google to do with what it wishes. I spent well past a decade as an investigative journalist and won nine awards examining government corruption, campaign finance spending and lobbying. In fact, one thing I learned as a reporter is to know a little bit about someone before drawing a conclusion. (I don't wish to bore TLF readers more with my journalism career, if you wish to know more contact me separately.)

Noel is younger than me and seems to revel more in the vitriol found at this site. I leave it to him to defend IP here; I confess I don't have the stomach for the tone. Any time anyone wishes to discuss copyright with me in a civil manner outside of TLF I will be happy to do so.

I wasn't actually trying to draw an emotional response, but I am amused by the one I ended up drawing.

I stand by the analogy. Find another example if you must, but both put the burden on the owner of the property to tell another party whether or not that property can be used by the other party. I don't know if I'm an IP maximalist but I am old-fashioned; I think you should ask before you use someone else's property. That's what I teach my kids, anyway.

Interesting you place the burden on the creator, rather than the company looking to use that creation without paying for it.

I don't see why you object to me using your lawn mower. If you'd only invest in a sign on your garage door saying you didn't want it used you wouldn't have to worry about me using it. I have the same right to your lawn mower that Google has to those books it didn't write.

Tim,

Thank you for acknowledging the overstatement.

When my mother's latest novel is published this spring, she cannot put a robots.txt file in the bound copy that will prevent others from copying it. She (and her publisher) can tell Google not to copy it, but if what Google is doing is legal, then how will she be able to opt out to all the other folks copying books for "fair use" who don't let her know they're doing it? As for the Sony decision, that was time-shifting for in-home personal use; it didn't say you could record a TV show on your VCR so that you could set up a business making various scenes available to others to view. And you say that Google will have these books sitting on their servers, but in fact they've promised to give digital copies to the five libraries that loaned them the hard-copy books to begin with. We also don't know down the road what other "fair use" ideas Google might come up with regarding these full-book copies, nor do we know how safe they'll be kept from hackers.

We know what Google wants to do now but have no control over their future actions. We don't know what will happen with the copies on their servers, or the ones sent out to libraries. We don't know what other activities might be launched by others, unbenownst to authors, based on this new fair use championed by Google. What we do know is that in none of these scenarios are the copyright holders being contacted.

It's telling that Google, who was already working with publishers through Google Print with an opt-in approach, then bypasssed the publishers and got their hard copies from the libraries, who (not being copyright owners) placed no such burdens. If Google really wants to do this service, they already have the phone numbers of the large and small U.S. and global publishers -- and thanks to consolidation in the publishing industry, where most houses we're familiar with share corporate parents, Google could place all the calls in an afternoon. If it's the publicity bonanza Google says it is, the publishers will say yes. But they will have been consulted, which is critical.

Sigh.

If only people were as informed and reasonable as you, they'd agree with you? Is that what you're saying?

Well, I'm as informed. It's no secret Google makes available only snippets; we had Google's Alan Davidson say so at a Congressional Seminar on the subject a year ago. He also admitted that Google has to copy the entire book in order to offer those snippets. And he further admitted that Google chooses not to seek permission to make those copies, but will cease doing so if specifically contacted by the owner, thus converting our opt-in copyright system to an opt-out one.

I have a very difficult time seeing the copying of *an entire book* as fair use, even if only portions at a time are shared. Google disagrees with me. You disagree with me. But fair use is best decided in court, not on blogs, so we shall have to see what comes out of the publishers' case against Google, if this is in fact fair use or not. Until then, it's not really helpful for you to write that anyone who disagrees with you is either ill-informed or unreasonable.

On the Hill, as you know, Hance, if a committee has secondary referral on a bill, they have only so long to act on it and that's it. DoJ has already approved this, and as the ones performing the antitrust review I'd equate them with the committee of first referral. The FCC, with its dangerously imprecise public interest standard, would be the committee of secondary referral. We need a rule where if the FCC doesn't act on any merger after X date then it is automatically approved.

I guess I've seen more libertarians work right than left. I'd note that for either of us we're probably talking a sample size that wouldn't pass social-science muster. I'd also point out that there have been far more jobs on the right in Washington -- more think tanks and related jobs, more GOP than Dems on the Hill -- so you go where the jobs are.

You also likely go where the power is. It would be interesting, if we have a Clinton-Obama administration starting in '09 and the Dems keep holding the House and Senate, to see if some young libertarian writes ten years from now bemoaning the fact that libertarians are so entwined with the left.

"I don't know of any libertarians who've gotten jobs at the ACLU..."

I remember far-right Congressman Bob Barr, a major privacy advocate, joining the ACLU after leaving office. I also just heard on C-SPAN radio the other day an ACLU event hosting Antonin Scalia, praising him for among other votes his siding with ACLU in the Texas sodomy case. I think you're trying to paint a world to make your point that isn't as neatly divided as you actually paint it. In Washington, anyone will work with anyone if it is in his or her best interest.

Oh, and somehow I wasn't aware of "Adam's push to have more nudity on broadcast TV..." I really must read Adam's voluminous writings more carefully; I thought he was making First Amendment arguments, not promoting any particular programming content.

Adam, enjoyable post as always. I do find it sad, however, that you feel your only hope for a rational discussion on IP on this board is to twice denounce the DMCA.

>If Big Content ever comes clean, it will be a more pressing matter for the Digital Freedom people to clarify their positions. Until then, the criticism of "foggy goals" applies equally to both sides.

Eric, you make a valid point about DF's vagueness, and yes, foggy goals can seem to be found on "both sides." My argument continues to be that there's a "side" overlooked in this equation -- artists. They have some things in common with labels, and some obvious conflicts of interest with labels. They certainly wish for more fun CE devices to drive sales, but also can be concerned they won't share in new revenue streams.

There are groups that are made up of artists and speak for artists -- The Songwriter's Guild of America, the Recording Artists Coalition, the American Federation of TV and Radio Artists, to name a few -- but those troubled by copyright never mention these groups; they target the labels and studios, which I'll agree are a far easier target.

I know from personal observation the artist has a pretty small voice on Capitol Hill, unfortunately; my hope is that she can have a bigger one online. The coalition of artists' groups that wrote an open letter opposing DF's creation suggests that they don't feel that coalition is their online -- or Washington -- representative.

Tim, I think your inclination to think of copyright as monopoly (you should check out TLF blogger Solveig Singleton's latest piece on this) has led you to inflate the supplier power of songwriters. I for one would get rid of the compulsory license for music compositions; in fact, as I have written, I would get rid of all government licenses in artistic works. It is hard for me to imagine that the world would be deprived of very much music; while each song is unique and the composer would loosely have a "monopoly" over that work, that is a very small market definition; there are so many songwriters and so many compositions, you can't possibly argue that the threat of those substitutes wouldn't act as a brake on all but the most sought-after works.

And yes, I want songwriters to set their prices at a revenue-maximizing level; sounds like a market at work to me, and the market has a say in where those levels rest. Those who focus only on the end use of a work, and not the creation itself, might be happy to have a compulsory license mandating that a composer be paid below market rate.

As an aside, have you ever tried to write a song? A good one, that is? One that an artist would want to record? Songwriters deserve far more respect than they're given in debates such as this.

You're right, Lewis, a cover is a derivative work, so I wasn't clear in my text. However, there are other scenarios to consider here; ASCAP and BMI mibht be the license-holders to contact if you wanted to cover a song live (a public performance license) and you'd definitely need to contact the rights holder of a sound recording if you wanted to sample part of that recording on another recording (think urban music market).

Sampling is done every day, covers are recorded every day, public performances are held every day. I'll acknowledge that local bands don't always seek permission to cover works as they're supposed to, but it must be acknowledged that this rights market, while complicated, is functioning. I would strongly resist anyone who urges new licensing regimes solely to create convenience for a user of content, be it karaoke operators or any other group composed of sentient beings capable of asking permission.

Tim, you write:

"Generally speaking, it seems to me that the ease with which musicians can create covers of other peoples' songs has been good for our culture. Perhaps it would make sense to expand that right to include a compulsory license for karaoke machines."

It needs to be pointed out here that any band doing a cover has already secured a mechanical right to the composition (probably from a music publisher or Harry Fox) and a separate license from the owner of the sound recording. It's misleading to say this system involves a compulsory license; that suggests that one coould act preemptively without seeking permission, the way a radio station plays songs without seeking permission. (They do then pay into rights groups such as ASCAP and BMI). the band must ask for a mechanical license from the composition licence holder.

Yes, there is a cap of 9.1 cents per unit for the mechanical license (although that can vary both up and down) and yes, if the publisher says no, the band can go to the U.S. Copyright Office and demand a compulsory license, although then they're looking at a lot of paperwork.

Bottom line -- it ain't easy to do a cover of a song. Yet it's done all the time anyway. Why? Because labels work with Harry Fox, ASCAP, BMI, SESAC and each other to reduce transaction costs, just as you'd expect in a functioning market. The difference in your example is that the karaoke folks have an alternative to the licensing model above, and have obviously found that cheaper. Maybe, instead of a compulsory license, we could forbid them from recording alternative tracks and force them to pursue the same licensing route that we see bands do for covers. You think that's easy, and you want original songs in karaoke, so problem solved.

Me, I'll just let the market sort itself out. If there's enough demand for a karaoke machine that uses original tracks with stripped-out songs and bars and individuals will pay more for that, some entrepreneur will jump through the licensing hoops. As you acknowledge with your example of music covers, it's far from impossible.

I agree, Steve R., it is a bit unnerving to agree with the FCC! Of course, we can fault them for taking nearly two years to issue a ruling that seems pretty obvious based on OTARD rules.

Jerry, as to the necessity of OTARD rules, you may be on to something, not just due to competition forces, but technology. In your movie theater example, one can smuggle in popcorn. In an airport, I can use my Treo and check e-mail, use the browser, etc. A subscriber to an EVDO-like service can go online in an airport as well. Neither use Wi-Fi. Denying Wi-Fi just shifts users to other technologies.

This is, of course, unlicensed spectrum we're talking about here. Hard to talk about markets and property in this artificial commons where everyone is forced to share through non-interference rules. Now if the airport owned some spectrum and Continental tried to put up a competing service in that owned spectrum, I'd go to the mat for Massport.

Jim, thanks for the post, I'm glad to see Dr. Kahn's writing getting wider play. If you'll indulge me, I'd just like to point out to readers who wouldn't know this by reading your entry that the editorial was published by The Progress & Freedom Foundation, and as noted in the paper it began as a comment by Dr. Kahn to the PFF blog.

Having read Adam's entry I'm less embarrassed by my first Tower purchase -- I believe it was a single of Pat Benatar's "Hit Me With Your Best Shot." I did own "Pieces of Eight," and I did own it on 8-track, although my "Paradise Theater" was on LP. Tower was great for import albums, I bought a couple of U2 albums from Ireland there in the mid '80s.

My fondest Tower memory is Christmas 1983 or 1984, on vacation in LA, taking my gift certificate to the Tower Records on the Sunset Strip, and buying a cassette of Yes' 90215.

A clarification, I read she will step down from the chairman's seat in January at the next board meeting, but will remain a nonexecutive member of the board.

Mike, I agree Jim's being a bit simplistic, but I think he was just making a point while having fun. Let me argue in favor of open borders, though. I believe in completely free trade (a la Bastiat) and feel labor should be included in that; after all, a free market works best when labor can migrate to areas of job growth. I would waive any immigration restrictions and would assume we wouldn't be "overwhelmed," because if there were no more jobs immigrants would stop coming. I would also resist having our society blacklist individuals because of the culture they come from.

That said, it would be incumbent on all immigrants, on track for citizenship or not, to obey US law. A non-citizen could be subject to expulsion under this model (although since they could likely just return without our noticing, prison would seem more suitable).

I agree my position is extreme and politically untenable. I also acknowledge that it poses severe security risks in an age of terrorism. But the economic cost of not having open borders is overwhelmingly high. I don't view my position as libertarian so much as free-market.

Let me echo Adam on this one. Hance is a well-respected, informed and erudite communications policy player. If any TLF reader will actually pay attention to his contributions here, I suspect they'll find them engaging, enlightened and provocative, just what a blog entry should be. For those wishing to see more of his writing, I've been reading him for some time at the Disco Tech blog, www.disco-tech.org.

As for intelligent design, I too have strong thoughts on the subject. But I also don't see TLF as the place to debate the subject and I won't share them here, as they're not relevant to technology policy. Anyone wishing to engage in a discussion of ID is welcome to e-mail me.

And let's not forget the billions and billions of dollars in investment by the cable companies, who built their private property networks from scratch so that Grandma over the mountains out of reach of over-the-air signals would be motivated to buy a TV set. The stories of the early cable entrepreneurs are just as inspiring as those of the Google founders, and all did it without government subsidies. In fact, the cable guys quickly found themselves paying ROW fees as well as 5% of their revenues to local franchising authorities, so they were a net payer to government.

First, let me extend my thanks to Tim for trying to pull back the rhetoric a bit here.

On the whole libertarian kick -- I must have missed the meeting when the libertarian movement launched a credentials process. If they have done so, I'd rather not get a credential; one thing that's always attracted me to libertarianism is no one tells me what to think.

I have called myself a libertarian (I'm an AZ native and I idolized Goldwater as a youth) but I generally call myself a "practical" libertarian. I live in DC and am involved in public policy; a true libertarian would divorce himself from that process before becoming infected.

For example, the libertarian in me believes drug use should be legal, because after all it's ones own body, and who is the state to say what I put in it? But having lived in a not-so-good part of DC at the height of the crack craze, I also know that illegal drug use impacts not just the user, but the community. Families are destroyed, children are scarred, family savings are eviscerated, break-ins and muggings increase, fear pervades society, etc. There are no easy answers, but claiming "I'm a libertarian so the answer is just to ignore drug use" doesn't cut it from a public policy perspective.

Of course, the point of my post, as should be clear by the title "Supply and Demand," was not to advocate more enforcement of drug possession laws. It was rather to point out the absurdity of spending billions for our military to go after drug fields in S. America (and alienating residents there in the process) when the demand stays high at home. One way, of course, to reduce demand is to support drug treatment programs and get these unfortunate people who have had bad breaks in life off of these drugs so they can raise their children and participate in the economy.

The analogy came to me because the other night, my wife and I were watching a news report on drug eradication efforts in some South American country and we both marveled at the foolishness of it when demand remains high in the US. That can be said of other problems, such as sex tourism, where we berate third-world countries for the atrocity of allowing their children to partake in this when Justice Department and DHS figures show it's mostly US men hiring these children.

So for those of you who want to call me an idiot, please continue to do so, particularly those individuals who don't really know me but have developed great antipathy for me (which actually includes anyone who has ever criticized me on TLF, actually). Next time, however, please keep in mind that you may be insulting not just me but my wife as well. If you have no qualms about that, fire away.

I'll confess, Tim, when you asked for these materials I wondered why you didn't go directly to Professor Duffy; after all, I was just an observer of his Sao Paulo presentation, and as a college professor he is hardly difficult to track down. Now I see why -- you wanted to ridicule his example without having to get the full argument straight from the horse's mouth, nor did you want to have to approach the person you were planning to attack. A blog is not journalism, I know, but the journalist in me is appalled at the recklessness and intellectual irresponsibility of this blog entry, particularly when you acknowledge it's "not fair" to base your criticism on a single PowerPoint slide. When you want to launch a kamikazi attack on a respected academic in the future, do it without my help.

Okay, no need to invoke Godwin's Law. I said I found it amusing that Lee cited the Maginot Line, because by inference that meant _he_ was comparing file-sharers to Nazis. Again, _he_ was invoking Nazis. I found that amusing, and said so. The humor, and the oddity of Lee's own evocation of Nazis, is lost on Lee, and he reveals his confusion in the blog above. I chose to ignore that. Then, Doug Lay apparently chooses not to read my blog entries but rather prefers to jump to conclusions and accuse me of having spittle on my lips (I think it's hardly nice to pick on a man for a congenital drooling condition, I'm offended and demand an apology). Please, read my blog posts -- I think I was nothing if not civil. Disagree with my conclusions if you want, but you must read them first in order to do so. You also might want to read Lee's paper so you can see what I'm responding to -- your post suggests the endorsements of two bloggers has led you not to feel the need to.

Jerry,

I think your paper is quite solid, and demonstrates a desire to actually address this problem rather than use it as a vehicle to promote an agenda. Lessig has a solid understanding of this topic; I wish he'd use that understanding constructively toward a consensus solution, especially when so many people believe one is in reach. I address that (without mentioning Lessig specifically) in a Progress Snapshot today. (http://www.pff.org/issues-pubs/ps/2006/ps2.7orp... )

Can no one recognize facetiousness around here when you read it? Geez, get a sense of humor!