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The End of Innovation? 323

Simone writes: "2001 has been a bad year not just for dot-coms but also for people interested in preserving the public's right to fair use of copyright materials. From the shutdown of Napster and the DeCSS case to the prosecution of Dmitry Sklyarov, federal prosecutors and U.S. courts have acted in support of copyright interests and against the public's ability to use technology to secure fair-use rights. OpenP2P.com editor Richard Koman talks about these turns of events with Lawrence Lessig." Not particularly coincidentally, Lessig has a new book coming out on this very topic.
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The End of Innovation?

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  • There is one paragraph that cuts through all the bull that surrounds the DMCA and all the other stunts being pulled by the legal vultures...

    Lessig: Yes. I think we should go back to the principles that defined us originally, which was about open societies with free people who should obey the law but you don't get them to obey the law by basically coding it so that they can't do anything different. You get them to obey the law by making the law reasonable and getting people to be respectful of it, and that's the direction we ought to be going.

    Now, to me that makes sense.. In all of history, when organisations have overreached themselves, and tried to force control on everything, then other groups have leaped up and revolted.
    The more serious the overreach, the more serious the backlash.
    The whole reason the States seceeded from England was because the king of the time was forcing unfair measures on each and every person there. And lo, they all got a little upset, and went independant.
    Now, several hundred years later, the lawyers of the US seems to be forming laws that are just as unfair and predatory as those that were around back then.
    Personally, I know very little about "The Law". At least from a technical point of view. I'd hazard a guess that I comply about 99.9% with it, simply by following the rules of common sense.
    I have respect for those rules that are actually put there to protect people, and civilisation as a whole, and make the world a better place.
    However, I strenuously object to those laws that are in place solely to allow money to speak, and ensure that it makes more money, at the expense of the little guy.
    It seems almost like a throwback to medieval feudalism, with IP laws instead of land, and the consumer being the peon that does all the work, provides all the input to keep things moving, and at the end of the day gets shafted by the 'lords' with no recourse or protection.
    So, I laud anyone who simply says "Make the law fair.. Make it something people can look at and respect, and lo, it shall be respected.".
    That's sense.
    At the moment, the law is saying "You'll respect me and like it, because I tell you so", which bears far more resemblance to a tinpot dictatorship than the enlightened society that the Western World is supposed to be.
    Once disrespect begins to grow, it weakens the credibility of the whole.
    The whole reason that there are software companies now is that the original concept of copyright seemed fair.
    People didn't just copy everything in sight.. They actually respected the right of the producing companies to receive their payment, and the law that protected that.
    The DMCA is a law that just begs to be disrespected, and one wonders what effect that'll have on the public perception of the rights that's intended to protect...

  • Here is the basic argument that is trotted out to defend various kinds of egregious extensions of copyright:

    Creative people need and deserve to be paid for their efforts

    This is a potent argument, because of its patent fairness. However, I don't think it really applies to the kinds of copyright extensions and attacks of fair use, and onerous applications of IP laws we've been seeing.

    The real advocates of this are the large corporate interests that hold huge bodies of existing, and in some cases quite old IP. I don't have anything against large corporations per se, but it is important to realize that they are posing as proxies of the creative people that in realities are employees, contractors or independent vendors. Their implicit argument is what is good for them is good for the artist. That is only partialy true: protection from copyright infringement on recent works increases the sale value of creative work, and thus certainly helps the artist.

    However, artists and creators have an additional interest that the corporate interests don't share: an interest in their personal productivity. Creative people are empowered by being able to fairly use the works of others, to rely upon a body of works in the public domain, and to use publicly available knowledge as a basis for new creations. For artists, inventors, researchers and programmers, maximizing their return involves trading off having a rich source of material to work with, and having a restricted market for their output. They therefore have a much more balanced interest in the fair use/copyright extension/patent extension debates than their employers.

    Traditional IP protections -- moderate copyright periods, fair use, limited kinds of patents that can be obtained -- have been proven effective to both incent and empower creativity.

  • by the_ph0x` ( 170740 ) <the_ph0x@hotmail.como> on Thursday August 09, 2001 @08:49AM (#2110740) Homepage
    2001 has been a bad year not just for dot-coms but also for people interested in preserving the public's right to fair use of copyright materials.

    It's also been a bad year for the stock market, most all technology fields and on top of all that, my sex life is down 5 points... go figure, I'm still blaming el nino.

  • Out of curiousity, is there a real definition of "fair use" out there? Something on the legal books? It seems a majority of Slashdotters yell "fair use" whenever it comes to copyright issues, but when asked to explain it the definitions are all different.
    • Hell, let's ditch the whole world's economy.

      In your sig, there is truth.

      That which was costly is now free (or very inexpensive). In the past, reproduction and distribution had substantial marginal costs and the middlemen were able to make a living. Now these costs are dropping precipitously and the middlemen are being cut out. The bottom line is that the coming of cheap information transfer will ditch the old economy. Any government who recognizes this and facilitates it will be ahead of any that doesn't and tries to prevent it.

      And I got news for all you Luddites out there - information isn't the final step. Pretty soon (within 50 years), biotech and nanomechanics will get to a point where you transmit a blueprint and you can have an object the next day. And our economy doesn't know how to handle this. Do I have an answer for what gets put in place of our current economy? Hell, no. But it won't look the same as the current one.

      The only really important question is whether or not you'll continue to have relatively large amounts of freedom or if you will be buried under a neo-feudalism. In my opinion, the rush towards ever more draconian laws is the last gasp of the current economic order. They will not be able to hold on. Short-term, it's going to look feudal. Long-term, the stars are ours. But we should work towards more freedom, just in case...

      • Thank you. I agree with all of this. Capitalism is built around capital because it was put together for industrial purposes. It makes it easy to put together a factory to make material goods. It works very well for that. But now, much of the economy is going to a data/info economy. Big Oil and Big Steel is getting replaced by Big Software and Big Media. This can't be done with the capitalist/industrial model of expensive machines and cheap, unskilled labor; your capital is now mostly expert labor. Capitalism doesn't handle this natively. We have the kludges of IP law in place for that. This worked well enough when IP was a minor part of the gross product, when copyrights were applied to books and patents to motors. However, the economy is resting more and more on these kludges, and the theories of capitalism are going right out the window. So where do we go from here? Capitalism is becoming obsolete, but what better thing is there to replace it with? I have yet to see successful results with any flavor of communism on a national scale, but that's the only other well-known modern system out there.

        I don't suggest this as a solution, but a springboard to think about further solutions. Look here [rr.com] for a discussion of something called the Stone Society. Enjoy!

    • Yes, sort of. Section 107 of the Copyright Act (which, if you understand legal citations, can be found at 17 U.S.C. 170--that is, Section 107 of Title 17 of the United States Code), provides as follows:
      "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
      Those four factors are how a court determines if an otherwise infringing use (e.g., quoting a book in a book review of that book) is actually a fair use. Fair use is not really a right of the user, but a limitation on the right of the copyright holder.

      However, the Supreme Court, in the 1985 case Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, stated that these four factors were not exclusive of all the things that should be considered when determining if a use is fair. The factors are a guide. In reality, any court dealing with a fair use defense is going to start with those four factors and only deviate from that analysis in exceptional circumstances.

      This post is not intended to provide legal advice.
  • by iapetus ( 24050 ) on Thursday August 09, 2001 @08:34AM (#2119947) Homepage
    This isn't a question of 'the end of innovation' at all, except possibly in a Microsoftesque "Help! Stop the bad man! He's depriving me of my ability to innovate!" sort of a way. The issue is an entirely separate one, that of fair use and the purpose and extent of IP rights.

    There's nothing to stop people coming up with new and better ways of carrying out these same tasks, or entirely different tasks - the constraints that we're looking at here are primarily on reverse engineering, which has never really struck me as being an integral part of innovation...
    • the constraints that we're looking at here are primarily on reverse engineering, which has never really struck me as being an integral part of innovation...
      I agree with most of your statement, but I have to take exception with this comment. While reverse engineering may not be necessary to innovate, it is often necessary in order to compete. If you cannot compete, then you have no resources with which to innovate. These issues are all tied together, and to destroy any one of these facets is to damage the whole.
    • WTF? (Score:5, Insightful)

      by Ender Ryan ( 79406 ) <[ ] ['' in gap]> on Thursday August 09, 2001 @09:37AM (#2151998) Journal
      "which has never really struck me as being an integral part of innovation..."

      Almost all technology in use today is in part available because of reverse engineering.

      Without reverse engineering there would be no interoperability between Windows, Macs, Unix, etc.

      Without reverse engineering we wouldn't even have the current PC at all.

      Without reverse engineering we wouldn't have the huge microwave oven market we have today.

      Car manufacturers buy each other's cars and completely take them apart to see how competitors do things.

      There is simply no end to how much technology is improved through reverse engineering. Reverse engineering has ALWAYS been a huge part of innovation.

  • is it big enough we can all move there? Or maybe we should just buy a fleet of air craft carries?
  • Too often people confuse their rights in content with their rights to access content. The two are completely separate and apart from each other.

    The DeCSS case is about the ability of a manufacturer to control a proprietary means of accessing content in DVD format. In my opinion, too bad for the manufacturer in choosing to protect its control mechanism as a trade secret. Trade secrets are only good so long as they are secret. Reverse engineering is an accepted method of properly discovering trade secrets. They should have gotten patents which offer stronger protection, even against reverse engineering, but they got greedy and wanted to keep their rights exclusive past the limited term a patent gives you.

    As for Napster (yes, I know I will get flamed and/or modded down for this - I have enough Karma to take the hit because it is the TRUTH), since when is it "sharing" when you make another copy of copyrighted material that you do not own? People have been ripping off artists for years. 20 years ago it was by making bootleg cassettes. Now that the digital format has come of age, why does the ease with which something can be stolen convert "stealing" to "sharing"?

    Don't get me wrong -- I believe it is a fair use for someone who has already purchased the music to convert it to any format they want and make back up copies for their own use. HOWEVER, when you make a copy of a song in a digital format that you did not buy, it is stealing. Plain and simple.

    • Blockquoth the poster:
      HOWEVER, when you make a copy of a song in a digital format that you did not buy, it is stealing. Plain and simple.
      No, it's not "stealing". It's "infringing". It could only be stealing if there was an actual removal of property and -- contrary to the myths promulgated by the Content Cartel -- there is no true property involved here. If someone steals my car, I can't use it anymore. If someone steals my book, I can't use it anymore. If someone copies my music file, I can still listen to it.

      What has been affected is a potential revenue stream, not an actual piece of property. It's convenient for the Content Cartel to use intellectual "property" because it automatically activates subconscious connotations in those who hear the term. But IP simply does not behave the same way physical property does, and it makes less than zero sense to pretend they're the same.

      Make no mistake: It's not that you have a copy that the RIAA objects to. It's that you have, potentially, cut off a sale that they might have made -- a chance for them to make a zero-cost reproduction and so even more massively inflate their profits.

      There's a reason why copyright "owner" is not the preferred term and copyright "holder" is, in the laws...

      • You have stolen RIGHTS. There is no such thing as "physical" property. Property is a legal construct.

        As for legal rights, there is NO difference between intellectual property and other forms which may attach to physical objects.

        Lastly, infringement, from Black's Law Dictionary: "A trespass...used esp. of invasions of rights secured by patents, copyrights... " Trespass: unlawful interference with one's rights. Steal : The commission of theft. Theft: the taking of property without the owner's consent.

        It is all the same. You have TAKEN a COPY without the owner's permission. By copying "your" file the other is stealing from THE COPYRIGHT OWNER!!!

        Stop stating what the "law" is until you get a law degree and pass a bar exam. You are seriously misstating the law and are using words with very precise definitions in twisted and plainly wrong ways.

  • DeCSS and P2P (Score:2, Interesting)

    This is my comment on the site, reproduced here:

    Stuff distributors wrap their stuff up. Hackers create breaking technology to free it and there's nothing to be done to stop that. Stuff gets freed, even if its in the privacy of an individual's home.

    Then another technology comes along (P2P) that allows the Stuff to be shared: it gets shared and there's nothing to be done to stop that. Stuff gets published anonymously from the individual's home into the homes of thousands of others.

    So a law (DMCA) says, there's a (usually broken) technology to protect our Stuff, but you can't break it or allow others to break it. Too late, the stuff is out there, and will always continue to be out there.

    Even if you add another law that says 'you can't share Stuff'. How do you stop people using Freenet to anonymously make Stuff public? That new law would be totally unenforcable.

    So the next step of the corporate-backed lawmakers is to come up with a Better Law - even better than the appalling DMCA: the 'We own the Net: We own your Computer' law.

    This law makes it mandatory on Operating System writers and vendors to include a reporting mechanism that can send back details on request of anyone's machine (what hardware, what software is running) to a central enforcement agency.

    Further, it is mandatory on network owners to supply to this agency details of the ports and message protocols being used from anyone's machine.

    If you're spotted running unapproved software or using unapproved ports or protocols, you are subject to investigation.

    That's the only way to go! Look out for this law at a government near you.
  • by RalphTWaP ( 447267 ) on Thursday August 09, 2001 @04:54PM (#2128473)
    At nearly the end of the interview, Lawrence Lessig makes the following statement:

    copied directly from this article [openp2p.com] without permission, with all due credit, and with unknown intentions.

    Yes. I think we should go back to the principles that defined us originally, which was about open societies with free people who should obey the law but you don't get them to obey the law by basically coding it so that they can't do anything different [italics added]. You get them to obey the law by making the law reasonable and getting people to be respectful of it, and that's the direction we ought to be going.

    end quote

    This statement interests me, because it seems that there is an even stronger statement to be made, namely that: Replacing the responsibility of the individual to obey the law with the inability of the individual to break the law not only encourages an ignorance of the law, but also encourages a lack of basic moral judgement.

    Now for some justification.

    Historically, moral philosophy has often considered the ability to reason practially about ethical and moral issues to be a sign of some maturity. Rousseau's Emile encourages this view especially with respect to children when it presents the advice that one not command a particular behavior from a child; rather, make it impossible for the child to misbehave. Similar thought has gone into modern society in every niche from electrical-outlet-covers to child-safety car-door locks. The underlying principle at work is that a child has not developed the practial reason required to go from an abstract commanded behavior pattern (Don't stick the scissors into the outlet) to the benefits (not getting electrocuted) without experimentation.

    Very much simplified, in the case of persons without the ability to reason practically about ethical and moral issues (those who cannot understand *why* they should obey a guiding principle) technology is an oft-used preventative measure.

    With respect to children, the profoundly impared, and other similar cases, no one argues that the use of technology to prevent a harmful outcome is innapropriate; however, I would argue that the continued use of technology to make impossible the breaking of a rule frees the faculty of reason from having any connection with that rule.

    In other words, utilizing high technology to keep people from being able to commit a crime does not in any way educate the moral faculties of the people being so protected from their impulses. In fact, I would argue that through reliance on that protection, people become inherently less able to distinguish the moral reasoning behind the rule being enforced. Instead, it would be much like your telling me "It's illegal to fly by jumping up into the air and flapping your wings". Should you say that, I would give the moral reasoning behind it no thought simply because I can't accomplish the deed.

    Certainly in such an imaginative case, giving the reasoning behind the law no thought would do no great harm; however, in a society where we are all in theory responsible for the health of our democracy (I seem to recall hearing that once with respect to the American legal/judical system) an inability to clearly reason about the morality and justification of the social contract under which we live spells the eventual end of that social contract.

    it is better that way.
    • I doubt many people will read this note (posted this late since I'm just now catching up on reading stories), but for the record...

      The moral disconnect is already present. As it is, people already lack ability to reason why a law is there, and thus to voluntarily obey the law, at least relative to the idealized past (though there is some evidence that said moral reasoning never was all that widespread). Furthermore, there are honest disagreements about certain laws - for instance, IP rights are basically limited to one's ability to enforce said rights (through any means, including raiding businesses that are using pirated software).

      Given that, getting everyone to voluntarily obey the law does not seem to be feasable in all, or even most, cases. But where and when one can come up with a technological solution, that may be feasable for all users...
  • huh? (Score:3, Flamebait)

    by nehril ( 115874 ) on Thursday August 09, 2001 @08:29AM (#2129070)
    ...public's right to fair use of copyright materials. From the shutdown of Napster...

    exactly which part of downloading mp3s without paying anyone a dime is "fair use"? I didn't think anyone actually believed that Napster was used for anything other than wholesale copyright infringement.

    • how many times must it be rehashed that alot of people download mp3's of records and tapes that they own. Which is well within their rights since they licensed the music when they purchased the record and medium.
    • by Gregoyle ( 122532 ) on Thursday August 09, 2001 @09:27AM (#2151037)
      The Offspring tried to release their entire new album (I forget the title) on their website. For free. What happened? Their record company shut them down. Thousands of artists release their material online, for example: mp3.com, besonic.com, djcentral.com, and countless others. Dave Matthews Band encourages trading of bootlegs of their concerts online. Many smaller record companies (not affiliated with the RIAA) also like the exposure they get by having their work available for download online, and encourage it.

      When they shut Napster down, you couldn't trade your recordings of Dave Matthews concerts unless the files were named undescriptively (read: uselessly). Many smaller artists were/are finding that their music is NO LONGER available for download over Napster. This is exposure they *depend* on.

      Not all copyright holders are the RIAA. I've said this before and so have many others, but I will say it again. The RIAA represent themselves, and their own bottom line. They do not represent the artists. They think they represent all of music, when in reality they are crushing the "little guy" who is so important to musical innovation (eek, I actually used that word?!?) to preserve the status quo.

        1. Your post has nothing to do with Fair Use which is what the original poster was talking about.

        2. No one forced Offspring or DMB to sign with a major label. People should learn to take responsibility for their actions and consider the ramifications of their decisions before acting.
          ANALOGY: This is just as stupid as me bitching that you can't work on OSS projects related to what you work on in your dayjob because if you signed an NDA, well "Duuuh". If that is a problem then don't sign the NDA and get another job and if you can't find an employer that will let you work on OSS projects then go in business for yourself as a consultant.

        3. The so called "little guys" have nothing to lose if people download their stuff over the 'net since nobody is buying their stuff anyway. They number of new fans they get is worth the miniscule number of sales they lose from people downloading their songs instead of buying their CD. The same is not necessarily true for the major players.
        • You make some excellent points, especially the "no one made them sign w/ a major label" & the "nothing to lose since no one's buying their stuff anyway". I'm one of those "little guys" - a professional musician w/ a cd released on an indi label (& a good music law attorney). Any one who thinks "fair use" means that ANYONE is free to distribute copyrighted materials by making them available on the net needs to get a grip. The fact is that Napster was facilitating the commision of a FELONY crime - unauthorized distribution of protected music - period. As has been noted in other posts, usage of the site took a nose dive once most of what was available were files by "little guys". I make some songs of my cd available for free on the web - w/ the permission of the label that released it. To my knowledge, no music of mine was ever available on Napster - had it been, I would have considered it copyright infringment - but as a "little guy", would not have had the resources to go up against the Napster legal team. My income is derived soley from playing & recording music, & I can tell you it's damn hard to turn a profit on an indi release - the last thing any REAL indi artist needs is a vast network allowing the unauthorized distribution of their product w/o compensation. Sorry, Napster fans, but the view that Napster was somehow a "little guy", or somehow "stood for" the little guy, is bougus - no "little guy" could have afforded that legal team - a team paid for by allowing others to STEAL copyrighted music. I've got a pretty good music law attorney - he wouldn't have gone up against those guys, tho. As has been noted, useage of Napster took a nose-dive once the "big guys" music was no longer freely available. They never stood for "the little guy". There are more than enough legit sites on the web where artists can offer samples of their music for free download - and the key here is that it's the artist's (or legitimate copyright holders) right to have control over what material is or isn't offered for free. There is not now, nor was there ever, a "need" for Napster re: the music biz. It was a service that served NO purpose other than to facilitate the illegal, unauthorized distribution of protected materials.
        • "No one forced Offspring or DMB to sign with a major label. People should learn to take responsibility for their actions and consider
          the ramifications of their decisions before acting."

          Right, they could have signed with some tiny label and thrown their career down the tubes. See, choices are good!

          "The so called "little guys" have nothing to lose if people download their stuff over the 'net...The same is not necessarily true for the major players."

          Except, of course for "major" players like Offspring and DMB. Oh wait, you meant "major" players as in the labels - they're the ones who get to decide how to market the artists' music. Oh yeah, they *do* have more to lose.
        • 1. I was referring to the second part of the post where he talked about the fact that no one used Napster for legitimate purposes.

          2. I was merely pointing out with these examples that the will of the artists was not being done. This also makes me see the problem with that fact that the record company holds the copyright under the "hired works" loophole in copyright law.

          Also, for 2, DMB concert recordings are not copyrighted works, and therefore should not be stopped from being published.

          3. The little guy artists don't lose anything they already had (at least not anything physical). They lose the chance to have anything (e.g. a fan base, record sales). To me this is such a fine distinction as to make the distinction meaningless.

          I understand the intention behind your post, and don't disagree with most parts per se (except that the little guys don't lose by not having their music heard as a result of record companies trying to protect their copyrights). I still think that there are many things the record companies choose to ignore to preserve a known source of income.

          There are market forces at work here. There is enough of a demand for this pirated music that I think it definitely shows that the record companies are doing something wrong from a business perspective. They are charging too much for their records and it is starting to hurt them. Rather than lower prices as market forces might dictate, they resort to litigation.

          I never really liked Napster, the company. But Napster, the phenomenon, is here to stay, and the record companies need to find a way to deal with it.

      • by FallLine ( 12211 ) on Thursday August 09, 2001 @10:10AM (#2130999)
        Yes, there is a large amount of free and open material out there. However, this does not mean that Napster is either necessary or superior at delivering that material.

        First, relatively few major artists encourage or allow bootlegging. Second, those bands which do invariably have vastly better organized websites and ftp sites dedicated exclusively to that pursuit. I am a DMB fan, and I would far prefer to go to from the dedicated ftp/www sites, where I can download entire/full/non-corrupt albums, than a disorganized system like napster, where anything I searched for (any time during its existence) would result largely in his COMMERCIAL recordings. Third, given that most of the legitmate uses are not from well known/signed artists and the fact that Napster's user base absolutely plummetted after they blocked the various signed artists, how can you reasonably claim that even a reasonable minority was using it for legitimate means?

        I hear all this crap about protecting the little guy, well that's fine and good. But the little guys interests needs to be balanced against the interests of society at large (and the legal claims of, what is in economic terms, the real majority). When the vast majority of the use is for piracy and the minority can have their legitimate claims answered by alternative means, in a superior way nonetheless, why bother? Even if we accept P2P as being important, P2P does not necessarily mean that we need a system of total anarchy, whereby any content is allowed. Napster could have implimented a system of trust for the much-hyped little guy, where they could register their songs and allow them complete access to the system, but they choose not to. I have very little sympathy for them.
        • From an ethics perspective, you are correct. The little guy's interests do need to be balanced with those of society at large. Relatively few artists do not object to their concerts being recorded.

          However, from a pragmatics perspective, these people are dinosaurs and will become extinct (or perhaps adapt?) sooner or later. Hopefully they won't bring the rest of society down with them.

          For one, I think it is terrible that most bands discourage bootlegging. For one, it is legal. Bootlegs are not copyrighted to the band or their label. Also, I would think that anyone who buys or trades bootlegs of a band has already bought all their records and also shells out major dollars to see their concerts.

          Now for the ethics vs. pragmatics part. It doesn't matter what people *should* do. It matters what they *actually* do. Laws work in two circumstances. The first is where people by and large agree with the law, and act along those lines. The second is when people are forced into compliance. Normally this should not be a problem in a free society, because the laws would represent what most people want, so most people will not break the law. It is only when laws do not represent the will of the people that most people break them.

          I would suggest that the current status quo in copyright law is not the will of the people at large, but the will of the large people. The ones who have the money want to keep it, so they pass laws (err, lobby for laws, the distinction eluded me for a moment) to protect their interests.

          Granted, challenging the law itself is the last resort of the desperate when trying to defend themselves legally, but I believe it applies very well in this case.

        • Second, those bands which do invariably have vastly better organized websites and ftp sites dedicated exclusively to that pursuit.

          Outgoing bandwidth costs money.

          I am a DMB fan, and I would far prefer to go to from the dedicated ftp/www sites, where I can download entire/full/non-corrupt albums, than a disorganized system like napster, where anything I searched for (any time during its existence) would result largely in his COMMERCIAL recordings.

          It sounds like the best solution would be for the DMB site to post freenet keys for non-commerical recordings.
        • Yes, there is a large amount of free and open material out there. However, this does not mean that Napster is either necessary or superior at delivering that material.

          The point of free speech is that it is free. One cannot regulate free speech in all channels other than those necessary or superior to deliver it. This also used to be true of Copyright, at least before the Ninth Circuit hit with the Napster opinion.

          Indeed, the Ninth Circuit came up with a similar standard to the one suggested above in the Sony Betmax case, and was amazingly completely dissed by the Supreme Court, which said that it isn't necessary that an instrumentality be either necessary or superior for fair uses to avoid contributory infringement for infringing uses, it sufficed that there COULD exist ANY substantial noninfringing use.

          Now the Ninth Circuit, once more, protects Copyright holders with a test not very different from the Betamax case (ironically in a case where Sony is now a plaintiff). Perhaps the Supremes may reverse it someday, perhaps not. But don't pretend that the fact that there are other ways to distribute free subject matter doesn't mean that the public was not deprived of an important instrumentality for file-sharing.

          More important, if there ever WAS another instrumentality that might be superior or necessary, the Ninth Circuit opinion assures that development of such technology would be chilled, lest those funding and using it be sued into oblivion by the big bad RIAA, right or wrong.

          Fact is, Napster and DMCA have struck a blow to innovation, because they are permitting first entrants into a marketplace from competing with subsequent entrants, even where the instrumentality is not inherently infringing.

          DMCA provides patent-like protection of unlimited term for unpatentable and unexamined inventions. Only the blessed unsued (read, licensed who pay the fees) can compete in that arena, and forever. First entrants win, for reasons entirely unrelated to any salutary intellectual property policies.

          This is what we IP lawyers who don't work exclusively for such interests call, "a bad thing." Ultimately, its bad for those interests, but in any case, its bad for America.

          At one time not too long ago, the information economy was just booming and CD sales were higher than ever. These interests went pleading to the Congress and the Courts claiming that they "needed" special protections to protect and enhance the economy.

          Isn't it interesting that they got what they asked for, from both Courts and Congress, and almost immediately thereafter the information economy and record businesses tanked!

          Kicking and screaming, the music and film industry has whined about EVERY new technology, from piano rolls to radio to television to audio tape to video tape to dat to streaming digital communications. Until recently, they lost every time and made much more money as a result. Now, they won and all they have done is to kill off a thriving and dynamic source of business.
  • bad title (Score:3, Insightful)

    by archen ( 447353 ) on Thursday August 09, 2001 @08:43AM (#2129352)
    I think the "end of innovation" is going a bit far. Although no one wants to hear it, big corperations innovate too. I feel that the "little guy" gets stepped on all to often, but we tend to simply ignore the time and money large corperations spend on what is more or less innovation (so they can make more money)
  • ... is that according to the US laws, content entirely belongs to the producer, not the author. It's that braindead approach that's the cause of most so-called 'intellectual property' fuss from all BigCorps out there. You'll notice that (outside Metallica, okay *g*) it's the bean counters that are the damn thorn in our collective arse, not the authors, who more often than not, I'm told, get ass-raped as much as us for BigCorp's benefit.

    I don't know for other countries, but in France, for example, while the commercial rights on the content belong to the producer, the intellectual rights belong to the author. There, a producer can't force an author to change the content in a way supposed to make it sell better if the author doesn't want to (alright, so that might explain a few things as well... :)).

    Of course, slightly less stupid laws doesn't mean less stupid lawsuits, but that's still something worth pondering, I think, since those laws do extend to software authoring.
    • Just a minor correction here. There is no law in the US saying the content ownership resides with the producer and not the author. It is simply industry practice. That is all.

      Thus, in the book-publishing industry, you will see them having standard contracts wherein the author owns the rights to the book after some time, that the publisher only has a right to publish in North America. But in other industries like the music record industry, pracitices are different.

  • by camusflage ( 65105 ) on Thursday August 09, 2001 @08:37AM (#2151442)
    For me (and a lot of others in the anti-spam community), Mr. Lessig lost all credibility when he wrote The Spam Wars [thestandard.com]. In it, he describes a group of vigilantes looking to change the nature of commerce on the net. What he fails to mention is that it's just a bunch of network admins using a self-compiled and maintained list to drop packets from open relays and known spammers from hitting their own networks.

    I find it both amusing and disturbing that he can be so strongly in favor of fair-use, reverse engineering, and against the DMCA, among other hot button /. issues, all the while decrying network operators dropping traffic they don't want on their network.
    • Here is a clue for you - the man is a lawyer. He very definitely sees things slightly differently from you. You cannot ever expect someone, even your idol, to agree with you 100%. If you feel so sore about his opinions, why don't you email him with what you believe are cogent arguments and try to get him to see it from your point of view?
    • It's a matter of freedom. Total freedom. A lot of people seem to have the view of "Keep the internet totally open, except where that conflicts with my ideals!" I have no problem with someone using a blackhole list to control access to their personal servers, or even a network admin who has verified that all (or at least a very significant majority) of the users want such blocking in place. When the admins bother to poll the users, the question tends to be worded such to extract the desired result ("We can implement measures that will reduce the amount of spam on the network. Do you want us to do this?"). The user answers in the affirmative while being unaware of the potential ethical issues involved.

      Also, a major point Lessig made in the article you linked is the unaccountability of the people compiling these lists. There have already been abuses. Quite simply, it's part of the vigilante mindset that this comes from. Some people can remain totally objective, but most cannot.

      All things considered, Lessig appears to be significantly less self-contradicting than many people I've spoken with who support blackhole lists.

      • Also, a major point Lessig made in the article you linked is the unaccountability of the people compiling these lists.

        They're accountable to their users. If I use a list that is abused, I will try to correct the abuses. If I cannot correct the abuses, I will cease to use the list. No one's telling anyone they must use a blackhole list. It's a voluntary choice.

        Regarding network admins polling users, I don't agree with that. A network admin is charged with operating the network as they see fit. I don't like that I can't listent to streaming radio at work. It is my employer's network, and they don't want me doing that, hence I don't do that. If my ISP used any filtering I don't want, I'd use another ISP. If my employer does something with their network I don't think they should, I raise the issue with management.
        • That's just the thing...you would raise issue with management, I would raise issue with management, many *technical people* would. But, news flash, the vast majority of people who use a network as part of their job are not technical people. They just know that they can't send mail to this or that person anymore.

          Also, a network admin is not charged with operating the network as they see fit. In my view, the duty of a network administrator is to focus on the reliability, availability, and usability of the network. Yes, a network administrator should identify types of problem traffic that affect these three areas. But he should take great care that he does not inadvertently go too far. In the average corporate environment, killing p2p filesharing or streaming audio/video has only a tiny chance of affecting someone's ability to do their job. Email is a much trickier subject.

          • Even a non-technical person can figure out that email is being blocked. "User is not getting my email. Why?" would seem to be a pretty standard question. Unless you're dealing with Simon the BOFH, you'll get a straight answer. You can address with management as appropriate. If you're dealing with Simon, well, the problem's not so much with the blocking as it is the BOFH.

            It all comes back to the individual, be it the network or its operator. If the owner doesn't like the operator, they change the operator. If the operator doesn't like the packets, they drop the packets. If the operator doesn't like the owner, they change who they work for. No one commands anyone to use or abide by blackhole lists. It's voluntary control of the network and its use. For someone (other than the owner) to say how I should run a network (in ways other than maliciously broken..) smacks me as being totally wrong.
            • Have you ever worked in network support for an organization that is primarily non-technical? Users see problems and complain, yes...but they report things as "My computer is broken" or "The network is slow" or "My thingamajig doesn't do right". The average user on a corporate net has no idea how any of the stuff works, or even how to separate email from accessing a fileserver from going to a website in their mind.

              In many organizations, the person or handful of people who run the servers and networks are often the only people in the organization who can grasp the technical issues. What I was saying is that all too often these people subscribe to the blackhole lists with good intentions, but often don't think about the possible problems that could arise. No one else in the organization, even upper management and owners, might be thinking about it, either. You know why they're not thinking about it? They hired people to do that. And quite simply, a lot of technical people in the world have such a hard-on for killing spammers that they don't think about the possibility of an error in the lists, or a list manager slipping in something for personal reasons, etc.

  • by phantumstranger ( 310589 ) on Thursday August 09, 2001 @09:11AM (#2152029) Homepage
    I haven't read the /.'ed article but I figured I'd write this anyways.

    Out of the three cases mentioned, the one one that made me the most upset, and is still the one that makes my blood boil the most, was the DeCSS travesty.

    I'm talking, particularly, about the case with 2600. I'm not a big backer of 2600 or Emmanuel but in this case I had to give the respect where it was deserved. This was the case, IMHO, that set the tone for all cases after it and because 2600.com made the hearing available on their site [2600.com] I, we, were given a first hand listen to just how badly lawyers could manipulate judges in technology cases.

    After listening to this case, at least the whole of 2600 / Emmanuel's side, and finally finding out the judgement, I knew that it was only going to get worse was only going to get worse (I suggest doing a search here for 'Court' it's truly appalling). It wasn't as though the judgement and the judgement alone upset me. It wasn't that I was all "rah-rah" for 2600. It wasn't even that I thought DeCSS should be "legal." It's that the judge had no concept of technology and the justice system allowed a mac truck of a manipulative lawyer to run him over. Listen to the testimony.

    I said it before and I will continue to say it, the judicial system needs better qualified people presiding in these cases. I say 'these' because, and IANAL but, this is an entirely different concept than, say, laws of the physical world and laws of the 'cyber one.' I've often thought and giggled about the idea that files are never stolen, because if you copy something it's still there. I truly feal that we need judges that know the facts of the technology before it's sppon fed to them by the attorney's on both sides.

    Until that happens, and / or until the hearings on Dmitry, Napster, etc. are made public (if they have been could someone please link them) so we can know for sure if proper and fair judgements were passed [lysator.liu.se].

    Without that, and without the DMCA being either a) abolished, or b) re-written (I'd much prefer the latter) the companies that own the DMCA will continue to 0wn anyone they want.

    That's my two cents. Mod it to hell.

  • by Odinson ( 4523 ) on Thursday August 09, 2001 @11:39AM (#2152678) Homepage Journal
    The Congress/FBI is capable (morally and techincally ) of putting people in jail for many years for smoking marajuana.

    Not discerning the difference between selling cocaine and smoking marajuana (most laws go by weight of item in posession.) is frightening.

    Many drug users get high and dumb and rob, rape, fight and even kill. Most of the ones who get dumb are on a non-marajuana drug.

    Voters get pissed when to many people are robbing raping, fighting and killing, so congress acting in self preservation is commited to the war on drugs. It doesn't seem to matter that these behaviors are no more common in pot smokers than in say alcohol drinkers. Do they care if a couple(of hundreds of thousands) pot smokers get locked up to? They don't seem to.

    Marajuana is an introductory for drug dealers. They get started selling pot. see Dope wars [sourceforge.net] for a tutorial. People say marjuana is an introductory drug for users, well that's because they meet dealers who can sell them other things. If pot was sold in Seven Elevens with 1/10 the THC at five times the price to people 21 or over, people would have no idea where to get crack, acid, or ecstecy. Steamroller action.

    Now congresses revenue stream is being threatened by RIAA/MPAA. Now they must act in self preservation again. Do you think they diferentiate between a person who
    *legally owns 2 copies of Genisis Invisible Touch and downloads the mp3s because it's saner than tring to burn them?
    *a person who never contributes anything back to artist while downloading hundreds of songs?
    *a person who distributes a .mp3 of vital information to the chinese underground about the democracy movment?

    Why would they. Steamroller action is tolerated here.

    Campain finance reform MUST go through so lack of support from the RIAA/MPAA is no longer a threat to these peoples careers. Congressmen in a panic seem to lose touch with the meaning of the word liberty.

    This can get really ugly.

    When they are done with us, any guesses who's next? What will they do when physical scarcity begins to end.

    The way things are going, then next war will be fought over IP.

  • by tbo ( 35008 ) on Thursday August 09, 2001 @08:55AM (#2153528) Journal
    When was the last time you heard about private individuals making major discoveries in the automobile industry? Probably quite a while ago. As industries mature, the innovations stop happening in garages, and start happening in corporate labs. That's the typical lifecycle of any industry as it matures.

    The problem with the computer industry is that that wasn't happening, so companies had to turn to the courts to force it to happen. As for the dot coms, I think that was Wall Street's way of saying, "party's over, nerds, now get to work". I just hope things don't end the way I think they will (no more individual innovation in the computer industry, death of open source from IP lawsuits, etc.).

    On another note, I'm going to play devil's (lawyer's?) advocate and defend the DMCA (sort of):
    Devil's Advocate:

    People on /. are constantly slamming companies for hiding behind laws like DMCA instead of building better copy protection/encryption into their products. At the same time, when they try to improve their "rights management system" or whatever, we laugh at their feeble attempts *cough*SDMI*cough*. We know that the problem of protecting trusted content on an untrusted system is impossible. Ultimately, if we can see/hear it, we can capture it.

    What's it going to be, folks? How are content providers supposed to protect their works? Unbreakable encryption is a myth, and once your encryption is broken, the hack can be distributed to millions within hours. The hack may have originally been created for legitimate access, but it can just as easily be used by your local warez d00d. The same is not true of analog content--even if you figure out how to photocopy a book, you haven't made it any easier for others to do so. Since technology provides no complete solution, content providers must turn to the law.

    Predictably, the law (DMCA) is screwed up (when does government ever get anything right?). Think of it as an alpha release. Other countries, wiser from watching the US experience, will make better, fairer laws. Unfortunately, alpha may be all the US gets.

    Seeing as I haven't seen a realistic, workable alternative economic system for what we now call Intellectual Property, I figure we should probably stick with the current concept of IP, and try to patch it up so it can survive the "digital age" without being too broken or stupid.
    • When was the last time you heard about private individuals making major discoveries in the automobile industry?

      Well, let's see. Last time I looked at power windows. Oh, and last time I saw a friend's home built sheet metal intake (30% Horsepower jump). Oh, and the college kid I met that fabricated a jig for easily adjusting holley carbs. What about the guy who came up with splitfire spark plugs? Yes, sometimes innovation happens in corperate labs. Sometimes it doesn't. Don't assume that every industry has to turn to corperate labs to get anything done.

      Unbreakable encryption is a myth...

      Not at all true. There is lots of unbreakable encryption. Aside from 4096 bit keys and the like, just use a one time pad. The problem is that as encryption gets stronger, it becomes inconveniant(sp?). People aren't willing to go that far out of their way, witness Circuit City's DivX. Cheaper (sort of) but too inconveniant. People probably won't be interested in calling the publisher or what have you to get unlock codes for their DVDs. What you wind up with is a balance between what the consumer wants (completely open and free access) and what the copyright holding corperation wants (complete lock down of the work). This balence leads to balence in other areas, including fair use. This is how a free market is supposed to work- the current IP laws are broken and stupid because they upset this balence.

      How do we fix it? Personally, I submit that if we make copyright non-transferable most of this goes away. I tend to think that a copyright should only be held by the creator. It cannot be sold and transfered, even if the creator wanted to. Then if Metallica didn't want their music traded, fine. If Offspring did, fine. Sony (Offspring's label IIRC) would NOT be able to block Offspring from sharing their music, because Offspring would still own all of the rights. Sony would only be able to contract for the privelage of distributing The Offspring's fine music, rather than contracting to own it. This would, IMO, shift us back to sanity. Artists would be protected not only from people who wanted to copy and illegally distribute their work, but also from those who would seek to own and control their work. Consumers would be given more choice in the sense that if I didn't like Metallica's restrictions on distributing I could listen to MegaDeath (better than Metallica anyways but I digress...) As it is, If I don't like Sony's restrictions on distributing then I can't listen to a whole load of bands.

    • When was the last time you heard about private individuals making major discoveries in the automobile industry? Probably quite a while ago. As industries mature, the innovations stop happening in garages, and start happening in corporate labs. That's the typical lifecycle of any industry as it matures.

      This "maturity" isn't a result of everything having been discovered, or a shortage of creativity or new ideas, or of capital, or of an installed base unwilling to adopt new technologies. It is IMHO a direct result of the US Patent system and its propensity for favoring large Patent portfolio holders over small inventors, coupled with the effects of granting government sponsored monopolies and locking up ideas upon which even newer and more innovative ideas or improvements could have been based. This isn't maturity, it is stifling of innovation, of the economies, and of the wealth, which innovation creates.

      Software didn't have this problem until software patents started to be granted. Even then, it takes time for a critical mass of founding ideas to be locked up before innovation is brought to a grinding crawl, and we are starting to see the beginnings of this now. Another thing that has, up until now, worked in favor of the software industry has been the fact that the rest of the world has not endorsed software patents and so has been free to continue to innovate, with things like GPG, xine, and livid being developed abroad, then imported into the US either serreptitiously or, when the patent(s) finally expire, legitimently (but with the development time already behind them). This advantage may be going away as Europe and others consider implementing software patents of their own.

      The problem with the computer industry is that that wasn't happening, so companies had to turn to the courts to force it to happen. As for the dot coms, I think that was Wall Street's way of saying, "party's over, nerds, now get to work". I just hope things don't end the way I think they will (no more individual innovation in the computer industry, death of open source from IP lawsuits, etc.).

      It is more akin to the Big Boys saying "get your bitch ass back on the couch and consume what we give you. Raise your voice, innovate in any manner that might threaten our cartel, or our hold over your lives and the flow of your money into our pockets, and we'll crush you, if not ourselves, with the politicians and police we have so inexpensively rented."

      We seriously need to question the basic assumptions of IP law, the notion that granting braod monopolies for extended periods of time is somehow conducive to those things a free and competetive market are supposed to encourage: innovation and improvements in the products we create. In point of fact monopolies are antithetical to a free market, quite destructive and not at all conducive to innovation. We should seriously consider dramatic restrictions on copyright priveleges and getting rid of the patent system altogether. If that is to great a course-change for people to stomach then at the very least we need to address the problem of monopolies, perhaps through manditory licensing of copyrighted works (so anyone can start a radio station for example, not just members of the recording cartel) and offering tax exemptions to inventors rather than twenty year monopolies.

      Until we reexamine our basic assumptions with respect to IP and confront the contradiction that is at its very heart these sorts of problems will persist, irrespective of whatever quick and dirty patches we apply to the system.
    • by Chris Johnson ( 580 ) on Thursday August 09, 2001 @11:02AM (#2125073) Homepage Journal
      "What's it going to be, folks? How are content providers supposed to protect their works? Unbreakable encryption is a myth, and once your encryption is broken, the hack can be distributed to millions within hours."

      But that's exactly the point: digital copying is a new thing, compared to physical world stuff. The cost of many goods and services are based on not simply the IP, but also production, printing, distribution costs which can be very significant. When you obliterate those costs, it's unreasonable not to expect prices to drop radically in line with the new lower cost of distributing the IP. The whole 'everything must be free' thing is simply an overshoot of a shift in value that DOES need to happen.

  • Not necessarily (Score:3, Insightful)

    by Richard Bannister ( 464181 ) on Thursday August 09, 2001 @08:52AM (#2156872) Homepage
    Napster may have made it easy to trade copyrighted music files, but don't forget that it could just as easily be used for swapping free music and personal recordings.

    The Internet can be used for wholesale piracy of music, videos, commercial software, you name it. Is the Internet being shut down? No, because it has many redeeming qualities.

    I'm not trying to justify keeping Napster alive - I recognise that the number of people using it legally was somewhere between zero and zero - but nevertheless, I believe that shutting Napster down is not all that different to shutting down Hard Disk manufacturers because their media can be used for piracy.

    Just my 0.02 Euro...
  • by peter303 ( 12292 ) on Thursday August 09, 2001 @08:53AM (#2156876)
    Silicon Valley has been technically boring the
    past four years as people were rushing to bring
    startups to IPO. Most people doing this were in
    for the money, not the technology. And the tech
    guys had worked 80 hour weeks developing boring,
    me-too apps. Now there is time to be creative

    Never has the foundation been stronger-
    2 GHZ, 1 GB computers for a grand, decent OS'es
    with a maturing Linux and MS XP, decent development
    language like Java and C#, and so on.

There's no such thing as a free lunch. -- Milton Friendman