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If you are following the story about Viacom's notices alleging massive infringement of copyrights on YouTube, you may be reading about it from many different angles. John Palfrey from the Berkman Center at Harvard is particularly interested in the issue of the chilling effect that notices have on fair uses and has referenced this and other issues involved in the Viacom action in a recent post, Another Video for the Put-Back-Up List?.

For more information on this subject, visit The Chilling Effects Clearinghouse, and read, "Will Fair Use Survive? Free Expression in the Age of Copyright Control," by Marjorie Heins and Tricia Beckles. This is a Brennan Center report detailing the chilling effects of the notice and take-down procedure.

The Chilling Effects Clearinghouse is collecting evidence to further document the negative effects of the notice and take-down procedure. Viacom's 100,000 notices are sure to add many stories to the list. Whether it will be enough to prompt changes in the law is another thing, however. That process itself is extremely difficult. When Congress revisits an existing law -- everyone who has any problem with it can take that opportunity to urge amendments. Just as users and ISPs have their concerns with the law, content owners are unhappy about some aspects of the law as well, so opening it up to change could be a risky proposition for all.

In a very nicely written article on the importance of one of the Copyright Office's recent DMCA exemptions, Law.com - Copyright Law Gives Mobile Users New Freedom With Legally Unlocked Cell Phones, the authors, Timothy Meece and Aseet Patel, do a fine job of explaining why the Copyright Office was persuaded to allow users to circumvent the DMCA to unlock their cell phones to connect to a rival's network. But the article seems to me to be missing its last paragraph...

It fails to point out that while it may now be legal to circumvent this particular technological lock (for the next 2 years and 9 or so months), it is still illegal to make or distribute the means of doing so. So, unless the cell phone user knows how to unlock his or her phone without resort to third party tools, the ability to circumvent would seem to be a bit hollow, sort of like an empty promise (which leads one to question the whole exemption process, but that's another story).

The authors should have made at least some mention of this serious problem with the way the law works, or explained why continuing liability for making and distributing devices to exercise this right would not be a problem in this case. I'm certainly wondering how to unlock my phone without anyone else's help. Is this something everyone (but me) knows how to do?

Colette Vogele at the Stanford Center for Internet and Society provides a short summary of the important features of the new FAIR Use Act, Support the Fair Use Act | Stanford Center for Internet and Society [beta site], as well as links to sites that allow you to register your support.

Hope springs eternal...

The RIAA threw down the gauntlet to their partners in fighting copyright infringement this week. Illegal downloads of MP3 files have been a problem for the Recording Industry Association of America (RIAA). In a highly debated strategy which was commenced this past week, the RIAA has asked colleges and universities to forward a letter to students as a prequel to the RIAA filing suit against the student. Litigation against the student could only commence once the RIAA has filed a John Doe lawsuit to obtain the identity of a student, but this is not made clear in the RIAA letter. The identity of the student could only be produced if the school has retained the computer logs long enough to allow them to match a time, date, and IP address with the alleged act of infringement.

To date, colleges and universities have been good partners in the battle against illegal downloads, doing their best to educate students about copyright infringement and encouraging the students to use legal music download services such as iTunes. Under the Digital Millennium Copyright Act (DMCA) schools that provide internet service to their students are granted immunity from charges of copyright infringement if they are merely acting as a conduit. In order to retain this immunity, the schools as Internet Service Providers are required to educate their users about copyright law, and to also have a policy in place to deal with repeat infringers of copyright law.

Evan Brown has a succinct explanation of the various parts of the new FAIR USE Act, the bill introduced in Congress last week that would make several changes to the anti-circumvention provisions to allow certain uses that have become problematic over the 8 years those provisions have been in place: InternetCases.com -- Evan Brown, Chicago intellectual property and Internet attorney. He provides a link to the bill so you can read along as he explains.

He also points out 2 problems with the bill, but not the biggest problem of all -- its likelihood, or lack there of, of getting passed. Still, this bill in some form or another has been and I bet, will continue to be introduced in every legislative session until some day, anti-circumvention is going to be modified in some ways. It may not happen until those who use DRM have given up on it in favor of other business models...

Microsoft has made headlines a lot lately. The release of Vista, a new Book Search interface, a scathing attack on Google earlier this week before an AAP gathering in NY, and now, this NY Times article, Searching for Michael Jordan? Microsoft Wants a Better Way - New York Times, featuring Microsoft's efforts to improve its statute in the world of online search.

I saw an interesting connection among these headlines. I've been reading about how Vista packs the biggest DRM accommodating punch of any operating system ever (Google search on something like Vista drm to get a feel for the commentary), the speech before the AAP painted Google as cavalier about copyright and MS as totally supportive of the publishing industry, and the stats in the NY Times piece show that Microsoft is near the bottom of the heap regarding the use of, and lack of recent growth of, its search features.

These pieces look like parts of a very aggressive campaign to claw its way out of its own 20th Century niche, taking no prisoners, no holds barred. It has all the hallmarks of a political campaign, including the mudslinging. Tim O'Reilly chides MS and insists it is bigger than this, that we expect more out of a player of this size. Larry Lessig believes MS is just plain wrong about Google's cavalier attitude. I certainly agree with Lessig's sentiments, but as for whether we can expect more from MS, I don't know. Perhaps MS is just as much a victim of its business model as Holly wood and the publishers are of theirs (O'Reilly's comments again, in another entry)?

I wonder whether in working together as they must have, to implement such powerful DRM controls in Vista, whether they may actually impair their own progress towards more efficient business models in the future. In fact, I often think about DRM in the context of the old adage, "give them enough rope and they'll hang themselves." Many of the commentaries about Vista's DRM suggest that it's like a suicide note... Only time will tell.

Putting a much finer point on it than I did yesterday, Larry Downes compares the escalating efforts to rein in file sharing to various revolutions of the past: The revolution will be televised...on YouTube | Stanford Center for Internet and Society. He admits he's jet-lagged as he writes this, but that's one of the interesting things about being able to blog from anywhere at any time. Our first reactions are a lot more colorful than our polished drafts. I, for one, appreciate seeing the color from time to time, especially about a subject that can be as gray as copyright.

I heard Lessig talk here in Austin a few weeks ago and he said at that time that he expected Section 512's fundamental deal, not just the subpoena provision, to be attacked by the content community in the next year. He also cautioned that the ISPs were not as organized on this issue as the content industries were, and he thought it possible that basic limitations on liability could go down unless they did get organized. In this NY Times Op-Ed piece, Make Way for Copyright Chaos - New York Times, he notes that not only can the battle take place before Congress, but increasingly, before the Supreme Court. That's what Viacom is asking the courts to do: adjust the deal that everyone was happy with in 1998, but that Viacom no longer likes today.

What seems equally disturbing to me is that these are pretty brutal tactics for what was fundamentally a negotiation of the relative values of content and promotion on the Web. This is all about a business model, probably one that won't even be relevant in a few years given the fast pace of change online.

A fellow Texan, and a fellow Ph.D. candidate (at North Texas State University), Brian Kenney gave a lecture about 2 weeks ago, ALA TechSource | Does Print Still Matter? Brian Kenney on the Future of Content in a 2.0 World, that really piqued my interest. He has much to say on the subject of the future of libraries, and I recommend that you read the ALA Tech Source article about his talk. But the thing that really caught my eye was an example he used of a traditional publisher successfully integrating Web 2.0 social technologies into its online publishing for the most part, sans DRM -- The New York Times. I visit this site all the time. Many of my bookmarked pages are Times articles. The permalink feature allows me to preserve my links to the articles even after they would normally enter the Times' archive and require higher levels of subscription service to access them than I enjoy. Kenney points out that the Times uses other means to attract and keep customers on its site:

Kenney discussed the move by The New York Times into the 2.0 world: "...once on the site, stickiness abounds. Comments are invited on features. Video and audio extend the text content." Kenney noted there are over two dozen blogs integrated throughout the site, ranging from "Bats," about the upcoming 2007 baseball season to "On the Runway," offering a behind-the-scenes look at the fashion industry. "Most significantly," he said,"other users serve as guides to Times content. Tag clouds crop up. You can view the most popular articles by those most emailed, those most blogged, or by most popular search terms."

This integration of the user experience--and opinion--radically changes the construct of the traditional newspaper, which has relied on an editorially created hierarchy based on placement within the publication. "Real estate, in print, is everything, that and the font size of headlines," Kenney said.

This contrasts sharply with the approach of most publishers in the print world exploring business models on the Internet. Most ebooks are DRM heavy, one of the factors contributing to the lackluster performance of the genre.

The Times example also points out the decreasing importance of control in general, even to highly successful old-media businesses. The NY Times makes it easy -- not difficult of expensive -- for readers to reuse and refer to its content. Contrast this approach with some of the restrictive user licenses libraries must agree to in order to make electronic resources available to our constituents. I suppose it is just the natural evolution of business models given the shock of the potential unleashed by the Web, and that things take time. Nonetheless, it is encouraging to see such high-profile examples of publishers inviting users to make use of content, instead of asserting copyright as both a sword and a shield, when it is now possible to be profitable without so inhibiting use and enjoyment.

I don't often lose sleep over copyright issues anymore. But last night I could not stop thinking about the Copyright Office's new resource for *children.* Please have a look if you haven't already: Taking the Mystery Out of Copyright. There's a text only version if you want to skip the cartoons and the music (assuming you are not 13). This bothers me on so many levels, but I'm only going to address one level here, the most obvious. My experienced, calm, collected voice is telling me to wait a few days before I write this. Ok, at least wait a few days before I publish it. Clearly, I am ignoring that voice. I should at least acknowledge that I'm probably overreacting. I no doubt will feel differently about it after I have thought about it for awhile. Maybe I'll write about it again after a few days.

That said, do children really need to know about copyright? Well, I reluctantly must admit that yes, they do. Should they need to know about copyright registration, copyright history, and the role copyright plays in protecting film, music, art and literature? Well, it's not like they need to be protected from this, like it was senseless death, war violence or something cruel and ugly. So, it is commendable that the Library of Congress offers a well-done, straightforward, and fairly neutral informational piece. What would we expect the Library to talk about, other than what it does, which is, in this case, copyright registration. A narrow slice of the copyright pie, to be sure, but again, that's one of the things the Library does that no one else does.

But on the other hand, remember what it was like to be 13? Was registering your copyrights something you were all that concerned about? Should you have been? Have things changed that much with respect to how likely it is that the metaphorical box of things you created during your 13th or 14th year of life needs protection? From what? From becoming part of the stream of creativity (my metaphors are all over the place) from which you yourself borrowed to create?

If I had one opportunity to tell kids about copyright, I suppose I would mention its role in protecting the commercial interests of creators and distributors like the film, music, art and publishing industries, but in the next breath I would appeal to their own sense of how most things we all create are not meant for commercial exploitation, but instead are meant to be shared, reused, remixed and borrowed from. I'd say, "Look inside that box of things you created last year. Let's look at where all your things came from. Let's see how borrowing and modifying and adding your own ideas works in real life, and what we all need to keep that going."

The lesson I would teach is about the fact that *YOU HAVE TO DO SOMETHING* if you want your own creativity to be added to and be a part of a flowing, lively stream, rather than be caught up in a little eddy that goes nowhere. Congress (something here about infinite wisdom) has created a set of rules that, without your doing anything beyond the mere act of creating (tangible things, of course), keeps everything you create in that box, locked away, maybe forever, but at least for, let's see, you're 13? Let's say you'll live to 78, your box of stuff stays locked away for the rest of your life (65 years) plus 70 more years. Yes, in 135 years your box of stuff will possibly join the stream of creativity. If the box is still around then. And somebody finds it. And they know you and only you created it, and when you died. And they know about copyrights. If that doesn't fit your idea of what you want, then YOU HAVE TO DO SOMETHING. You have to let people know that you have something else in mind for your box of stuff. Fade to Creative Commons logo/website.

The assumption that everything needs "protection" for 1 1/3 centuries is so out of step with the reality of how we all create and most importantly, *why* we all create (overwhelming, not to make a living from our creations), and the serious consequences of being out of step with reality makes me very sad, and angry. The waste, the untapped creativity, and the criminalizing of creativity cannot be defended in my opinion. One size does not fit all. Given the enormity of the explosion of creativity enabled by the networked environment, to say nothing of creativity in the real world, the lessons we need to teach are about taking responsibility to do individually what Congress cannot seem to do for us as a nation -- create a copyright that fits our widely divergent needs, rather than one that both stifles us creatively and turns us into criminals (or potential civil litigants -- there's another interesting copyright lesson for kids) if we ignore it. We need to tag our creative works with simple statements that express how we feel about their place in the creative stream. I would recommend Creative Commons licenses for many reasons, but any statement about sharing is better than doing nothing and thereby consigning your work to copyright's centuries-long holding bin, or perhaps appropriately named, wastebasket.

I've just finished reading Pam Samuelson's initial thoughts on overhauling copyright law, linked from Boing Boing, Boing Boing: Proposal to reboot and de-cruft US Copyright Law. This is a very good framework document, easy to read (sort of like the law she's suggesting we need), and very thoughtful. If anyone could pull together the kind of massive project she's talking about, Pam could.

Still, she is very realistic about the likelihood that actual legislative reform would result from the effort. She knows it's highly unlikely at least for 10 years out and that, once started, it would take another couple of decades to complete. She sees a lot of other advantages to her effort though, even if we still are stuck with our bloated 1976 Act, but I'm not so sure how realistic they are.

What she doesn't give voice to is the pessimism I sometimes feel about the likelihood of the law's becoming so irrelevant that perhaps sooner than the next 2 decades, neither copyright owners nor users will be paying much attention to it. We will all have opted out of it to a large degree -- users by ignoring it; owners by licensing and or drm'ing around it. Those directions don't sound so good, but even a best case scenario could see people having opted out by turning to other ways to make a living off creative works (sort of what John Perry Barlow predicted almost 14 years ago). The signs that this strategy is increasingly employed are popping up here and there. Still, it's like the "innovator's dilemma." Only small potatoes at first, then gradually, the alternative business models begin to improve, pick up steam, and one day, they overtake the old ways of doing things, those industry giants who couldn't see the magic in the new ideas because there wasn't enough money in them, or their current best customers weren't interested. But for the existence of the state-granted monopoly that is copyright, in fact, the tide for the creative industries would have turned long ago. Copyright has worked to make creative industries innovation-proof to a much larger degree than other industries. Perhaps to their detriment ultimately. More certainly to the detriment of the public generally.

Mark Cooper has posted a short research note, Music Downloads - A Victory for Consumers and Artists at the Stanford Center for Internet and Society. It refers to music industry data to make the case for the victory it describes. Of course, the music industry would probably draw other conclusions from the same data. But it seems fairly clear where the trajectory is going, and that copyright can indeed play less of a role in the future than the industry thought it had to. In other words, controlling copies isn't as critical to making a living as a musician who wants to sell recordings as the industry believed.

Cooper points out that we're not through yet; this is just a milestone he reports, but again, the direction seems pretty clear.

Listening to NPR last week, I caught a story about a new iPhone lawsuit. Some enterprising types filed a claim that the exclusve deal between Apple and AT&T - you can only get iPhone service if you subscribe to an AT&T service plan - violates antitrust laws, because it illegally ties a product (the way-cool phone) to a service. In the past, special deals like that were not that uncommon or necessarily unfair; except now there's a DMCA catch - rules emanating from the Section 1201 proceedings concluded by the Librarian of Congress last November.

Turns out the way Apple and AT&T enforce the exclusivity is via a special coded card inserted into the phone. Phone owners are prohibited from bypassing the card's restrictions, which in copyright parlance are "technological measures" designed to "control access to a work" (the computer programs that run the phone. Not surprisingly, there are plenty of techno-fixes to undo the limit, but Apple is playing hardball and deactivating phones that break the lock.

While Apple-AT&T's goal of exclusivity is technologically enforceable, last year, the Librarian of Congress, following orders from Congress to conduct a review of how the anti-circumvention rule in Section 1201 was impacting fair use, concluded that people who own their own cellphones should be able to migrate to any carrier of their choice with their own phone.

Does the Apple-AT&T deal run afoul of this DMCA exception? The stakes are pretty high. With over 1 million people forking out $400-600 to buy the iPhone, and with billions of dollars of cellphone services at stake, could the DMCA be a wrinkle in the double A's plan? The issue has international repercussions because Apple is forming pacts with exclusive carriers around the world. So if you are traveling with an iPhone and want to stay connected through any carrier whose wireless service could accept the iPhone, the key issue is can you? This litigation may provide an answer to that billion dollar question. And as the case gains in notoriety, it will alert other cellphone owners to their right to take a phone they own (perhaps after their initial service contract with a carrier concludes) and if they are dissatisfied with their cellphone provider, to switch. Of course, there may be some cancellation fee hidden in the contract provision that complicates the change, but that, too, could be in play. If it turns out that cellphone owners can be liberated from a poor service provider, they could have the DMCA to thank.

No need to comment really: Sony BMG Plans to Drop DRM. DRM is history in the music biz. Now for books and movies.