Copyright and Technology 2011 Conference Recap December 1, 2011
Posted by Bill Rosenblatt in Events.5 comments
Thanks to all who spoke, moderated, sponsored, publicized, helped out at, and attended Wednesday’s Copyright and Technology conference. Judging by attendance alone, the event was a success with over 25% higher attendance than last year’s event.
I was too busy running around making sure the show went smoothly to pay as much attention to the panels as I would have liked — and given that we had two parallel tracks going for much of the day, it would have been physically impossible anyway. I invite attendees to comment here on their impressions. You can also search Twitter for hashtag #ct2011 to see what attendees thought in real time.
For me, there were a few particularly memorable moments. One was the keynote address by Tom Rubin, Chief Counsel for Intellectual Property Strategy at Microsoft. I invited Tom because of his record of consistent, intelligent advocacy of an approach to copyright in the digital age that balances the need for unimpeded technological innovation with respect for intellectual property.
His talk “Copyright at the Speed of Light: Creative Content and Cloud Computing” did not disappoint. The main takeaway for me was Tom’s expression of the urgent need for global registries of content and rights, to ensure that commerce in legitimate content over the Internet can flow seamlessly across international boundaries. We didn’t have a panel on rights registries (The Future of Music Coalition’s Policy Summit back in October did), but this topic is getting much attention nowadays with the Book Rights Registry contemplated in the Google book settlement, the Global Repertory Database project, the WIPO International Music Registry project, and other efforts.
The other fascinating point for me was the panel on cutting-edge legal issues in the music industry, the last panel on the Law and Policy track. Hillel Parness, a litigator and adjunct professor at Columbia Law School, gave a rapid (in fact head-spinningly fast) tour of court decisions in the past that had to consider copyright issues with online services. These took place long enough ago that their judges’ bases of comparison were brick-and-mortar entities such as libraries and newsstands. Many of these older decisions said, in effect, that the Internet really is different: its scale and speed make it impossible for Internet service providers to examine every bit of content for such things as copyright violations.
Yet more recently, courts have decided cases involving services that do have just that ability (at least to some extent), and the areas of dispute have turned to whether or not the relevant technologies are being applied in ways that suit copyright owners or are effective enough. In other words, it seems as though technology has advanced since, say, the mid-1990s so that the Internet is not so different after all — at least from this legal perspective.
In some cases, a service provider can claim safe harbor (i.e., “I’m not liable”) because it does not implement any controls (or as a reason why it doesn’t implement them); in other cases, a service provider may be potentially liable because of the behavior of the controls it does implement.
When I asked the panelists whether this apparent “chicken and egg” issue sends mixed messages to service providers who are thinking of using, say, watermarking or fingerprinting technology to catch infringers, they said that it depends on how lawyers choose to interpret these decisions. This is another way of saying that the relationships between rights technologies and copyright liability will remain ambiguous for the foreseeable future – thereby keeping lawyers like those panelists (not to mention consultants like myself) very busy for the rest of their careers.
Finally, the panel I moderated on content security challenges in multi-platform distribution revealed some of the Hollywood studios’ thinking on this topic. Ron Wheeler, the head of content protection in Fox’s legal department, confirmed what many of us have thought to be the case: Hollywood has seen what happens when a single downstream entity achieves a market share large enough to dominate the economic terms — that is, Apple in music. And Hollywood is doing all it can to prevent a similar fate for film content by encouraging healthy competition in the video distribution space.
The UltraViolet standard is their way of lessening certain types of advantages that one online retailer can have over another, such as the ability to lock consumers into their systems; the scheme’s emphasis on interoperability potentially benefits consumers as well by giving them more choices of retailers, device types, and even delivery modalities (physical products, downloads, and streaming).
However, Wheeler revealed that the different Hollywood studios have varying degrees of enthusiasm for UltraViolet. The most bullish is Warner Bros., which has released some titles on Blu-ray bundled with UltraViolet “rights tokens” that enable buyers to get their movies as downloads or stream them, through a retailer called Flixster that Warner itself owns. Yet Wheeler said “We don’t expect Flixster to be the next Wal-Mart,” while adding that Fox is supportive of UltraViolet. (The least enthusiastic studio is Disney, which is not a member of UltraViolet at all and apparently is still talking about its “rival” scheme, KeyChest.)
My opening remarks, which set the stage for the conference by teeing up the issues to be discussed, are available on the conference page. Other presentations from the conference, as well as video highlights, will be posted on the conference page as we get them.
C&T 2011 Conference Program Finalized November 8, 2011
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We have enlisted an impressive roster of speakers for the Copyright and Technology 2011 conference, which will take place in just three weeks (November 30) here in NYC. In the past few weeks, we have added executives from Universal Pictures, Fox, Verimatrix, NDS, and Getty Images, as well as several notable legal experts.
I will be moderating a panel on content security in multi-platform distribution. I’m also particularly excited about our legal panel on Digital First Sale, which will pit Paul Sweazey of the IEEE P1817 Digital Personal Property standards initiative against two legal eagles in a discussion of what it means to “own” digital content. We’ll also hear from a group of panelists who will debate the (harsh?) reality of implementing DRM. And I expect sparks to fly during our panel on the Google Book Settlement, where we will have panelists representing all sides of this ongoing saga.
We’re also doing some marketing testing, so I’m offering a limited-time discount on registration for those of you reading this. Go to the registration page and enter discount code 100GBRJYH to register for $100 (normally $399).
C&T 2011 Conference: Registration Now Open October 4, 2011
Posted by Bill Rosenblatt in Events, Music, Services.add a comment
(Re-running this for those who may have missed it over the Jewish New Year last week.)
Online registration for the Copyright and Technology 2011 conference, November 30 in New York, is now open!
Take a look at the program and you’ll see that we have most of the panels filled out – though a few opportunities remain, particularly for moderators. Please contact me if you are interested.
I am also pleased to announced that the law firm of Frankfurt Kurnit Klein & Selz has become our latest sponsor.
We invite law firms with practices in the digital copyright area — like Frankfurt Kurnit — to sponsor the conference as well. We have an exciting lineup of panels in our legal track. We will attract a high-caliber audience of professionals from media and technology industries who are coming to grips with issues of intellectual property in the digital age. If you are interested in sponsorship materials, please contact me as well.
In other news, the long-expected consolidation of music subscription services has begun with Monday’s announcement that Rhapsody will acquire the assets — mainly the subscriber base — of Napster.
Rhapsody is the first of the on-demand streaming subscription services to have gotten licenses from all of the major labels. They did this back in 2002, when there were five majors and Napster was still trying to recover from being shut down by a federal judge. Napster re-launched the following year… that is to say, the Napster brand was used to re-badge a service originally called Duet, then pressplay, which was a joint venture of two of the majors.
A first wave of subscription services appeared in the mid-2000s. Rhapsody and Napster were survivors of consolidation that took place around 2007, with other players like Virgin Digital disappearing. Now, with the launch of a second wave of subscription services, another cycle of consolidation has been inevitable.
Rhapsody only operates in the US, whereas Napster runs in a few other countries. Rhapsody will retain the Napster brand name outside of the US. Once the deal closes, Rhapsody will have 1.2 million paying subscribers, compared to 2 million for Spotify.
It’s a two-horse race now: Spotify vs. Rhapsody. The value of press hype and the long buildup to its US launch have done wonders for Spotify, which — as many would argue, and notwithstanding its superior mobile client — has considerably less functionality than Rhapsody. As I’ve said before, the consolidation will continue over the coming months.
Legal Speakers for C&T Conference – Deadline Approaching September 15, 2011
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Just a quick reminder that the deadline for speaking proposals for the legal track of Copyright and Technology 2011 is the end of this week. In a previous post I said Friday, September 18. My mistake: September 18 is a Sunday. So we’ll make the deadline Monday the 19th. The legal speakers need to be confirmed early so that we can get materials in for New York State CLE approval.
I am excited about the following speakers whom we have confirmed so far:
- Andrew Bridges, Winston & Strawn
- Mary Rasenberger, Cowan DeBaets Abrahams & Sheppard (formerly U.S. Copyright Office)
- Christopher Kenneally, Copyright Clearance Center
…plus several speakers on the technology track, and our keynote speaker, Tom Rubin, chief IP strategist at Microsoft.
Please email proposals to me. Those proposing to moderate panels will be given first preference. Please include the following information in your proposal(s):
- Name and full contact info of proposer
- Name and full contact info of speaker (if different). Please note that if you are proposing on behalf of a speaker, personal confirmation from the speaker him- or herself will be required before we put him or her on the panel.
- Panel(s) proposed, as well as an indication whether a speaking or moderating role is desired.
- Brief statement describing the proposed speaker’s perspective on the topic(s) in the panel(s) proposed.
- Brief biography (two paragraphs or less) of proposed speaker (or URL of bio on website).
Copyright and Technology 2011 Conference: November 30, NYC September 6, 2011
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I am pleased to announce the Copyright and Technology 2011 Conference, which will be held on Wednesday, November 30, at the Manhattan Penthouse in New York City. Copyright and Technology 2011 is a co-production of GiantSteps Media Technology Strategies and Gotham Media Ventures, and follows the successful debut of the Copyright and Technology conference last year.
We have an exciting lineup of sessions planned. As with last year’s conference, C&T 2011 will include a plenary session in the morning and then split up into Technology and Law & Public Policy tracks in the afternoon. Pending New York State Bar Association approval, the Law and Public Policy sessions will carry CLE credit hours.
You’ll hear more and more about the conference in the coming weeks, but right now we are launching the event with a few important announcements.
Keynote Speaker
First, it is my great pleasure to announce the conference’s keynote speaker: Tom Rubin, Chief Counsel for IP Strategy at Microsoft and Lecturer at Stanford Law School. Tom is one of the few “heavy hitters” in this field who can speak on technical and legal aspects with equal eloquence and authority. He manages the intellectual property affairs of a company that is both a global technology leader and an owner of all sorts of intellectual property. He understands both issues of protecting copyright and technologies and legal strategies that can be involved in doing so. And as I’ve seen over the years I’ve known Tom, he’s a great speaker.
Call for Moderators and Speakers
At this point the agenda is set, and we are looking for speakers. Please email proposals to me; deadlines are Friday September 18 for legal panels and Friday September 25 for all others. Those proposing to moderate panels will be given first preference. Please include the following information in your proposal(s):
- Name and full contact info of proposer
- Name and full contact info of speaker (if different). Please note that if you are proposing on behalf of a speaker, personal confirmation from the speaker him- or herself will be required before we put him or her on the panel.
- Panel(s) proposed, as well as an indication whether a speaking or moderating role is desired.
- Brief statement describing the proposed speaker’s perspective on the topic(s) in the panel(s) proposed.
- Brief biography (two paragraphs or less) of proposed speaker.
Sponsorships
We would like to thank our launch sponsors: Irdeto (Conference Sponsor), Civolution (Underwriting Sponsor), and Arxan (Partner Sponsor). Sponsorship opportunities are still available for Underwriting Sponsors (limited to two more) and Partner Sponsors as well as Media Sponsors.
C&T Conference sponsorships offer great opportunities for law firms and public policy bodies that specialize in digital copyright issues as well as vendors of relevant technologies to get exposure to informed, high-quality decision makers in the content, technology, telecommunications, online content services, and related industries. If you are interested, please inquire and we will send you the sponsorship prospectus and answer any questions you may have.
Online registration will open soon; please watch this space for further announcements.
We look forward to seeing many of you in New York this November!
Copyright and Technology 2011 Conference: Crowdsourcing the Program April 27, 2011
Posted by Bill Rosenblatt in Events, Law, Uncategorized.add a comment
We are starting to plan the second edition of the Copyright and Technology conference. It will be in late September in New York City. Location and date will be announced shortly.
Those of you who heard about or attended last year’s inaugural event may remember that we offered an afternoon legal track that came with New York State CLE (Continuing Legal Education) credit. We’d like to do that again… but we could use a little help. What hot topics in copyright and technology do you think would make good panels? Let us know.
I’d rather not repeat the subjects of the panels we had last year. The two ideas I have for legal panels so far are these:
- The Future of E-Book Lending: Contract or Copyright?Public library lending of e-books has exploded with the rise of e-reading devices such as the Amazon Kindle, Nook, and Apple iPad. Yet recent controversies over the terms under which publishers license e-books for library lending have thrown this service into some doubt. On this panel, we will explore the rights of publishers and libraries related to content licensing and copyright, including libraries’ rights under 17 USC 108.
- The Google Book Settlement: Good Riddance or Lost Opportunity?Judge Denny Chin rejected the proposed settlement between Google and book publishers and authors over Google’s book scanning and book search programs. The parties to the settlement argued that it contained great benefits to all parties as well as to society, while Judge Chin raised concerns about competition as well as structures that should be set up through legislation rather than litigation. Now that the settlement is dead, what will happen next? What should happen?
Please send me your ideas for legal panels. Don’t propose speakers yet… there will be plenty of time for that. Stay tuned.
Odds and Ends November 29, 2010
Posted by Bill Rosenblatt in Events, Law, Music.add a comment
A couple of odds and ends:
Everyone has to have a music blog, right? Well, I started one three years ago. It’s called Bill’s Musical Box. I picked it up again recently and ported it over from Blogger to WordPress. It’s up now, and there is a link to it on Copyright and Technology. As a mark of the occasion, I put a new appropriate image up on the blog page.
My musical interests are actually a lot more wide-ranging than the blog suggests; the blog just covers my area of “deep dive.” Enjoy!
Also, the National Academies have posted the audio of presentations at their October 15 Workshop on Copyright Policy on Innovation in the Digital Era, including mine. Each presentation is ten minutes plus Q&A.
My Remarks at the National Academies October 17, 2010
Posted by Bill Rosenblatt in Economics, Events, Law, Technologies, United States.add a comment
Remarks made at the National Academies’ workshop on the Impact of Copyright Policy on Innovation in the Digital Era, October 15, 2010, Washington, DC.
Good morning. First I would like to thank the committee for the opportunity of being invited here today. It’s an honor to be here. The issues being discussed here are ones that I have studied and cared deeply about for years. I’m thrilled to see the potential for research to solve some of the pressing issues around copyright policy in the digital age.
My name is Bill Rosenblatt. I’m president of GiantSteps Media Technology Strategies, a consulting firm based in New York. I consult on rights technologies, among other things. I’m the author of a book on DRM, which is ancient history by now, I suppose. I’ve worked with clients from across the spectrum of these issues for many years.
As a consultant, I try not to take sides in this debate. My only personal bias is that I was raised by professional musicians, so I am in favor of content creators being able to make a living. I’m a computer scientist by training, but also an author and editor, and someone who has worked in the content as well as technology industries.
The prospectus for this Workshop notes that debates over digital copyright have been philosophical and emotional rather than economic or fact-based. I was happy to see this acknowledged, because it’s absolutely what I see too.
I would like to draw attention to two particular issues that I have focused on, and that I believe are particularly in need of objective research.
- The economic imbalance that I perceive between demands for rights technologies and the costs of implementing them.
- Something I call the trap door between laws and technologies.
For each of these, I’d like to describe the problems that I believe can be addressed by appropriate research.
Regarding the first one, the economic imbalance: copyright owners demand that downstream entities in the content value chain, such as distributors, retailers, and consumer electronics makers, implement digital rights technologies in order to get licenses to use content. But in general, the downstream entities pay for those technologies; the content owners don’t. This has led to two common outcomes, both of which are not optimal: first, downstream entities implement the cheapest and simplest rights technologies that they can get away with, or second, in many cases, they implement technologies that benefit them at least as much as they benefit content owners.
One example of the first outcome is the CSS protection for DVDs, which was, in my view, designed primarily to be cheap to implement rather than to actually protect content well. It was hacked in a matter of weeks after its release, the hack was applicable to all protected DVDs worldwide, and it was easy to use. An example of the second outcome is Apple’s FairPlay DRM technology for iTunes, which was designed to promote platform lock-in as well as content protection. I don’t mean to pick on these particular technologies; they are just examples, and there are others.
No one really knows how to fix this problem, because no one actually understands the value of these technologies – to content owners, to retailers, device makers, or to consumers. Various studies have been done on related subjects, such as losses to content industries from copyright infringement, the effect of DRM on content pricing to consumers, the effect of file-sharing on music piracy, contributions that Fair Use has made to the Gross Domestic Product, and so on.
How helpful are these studies? Well, the Government Accountability Office released a report this past April that not only cast doubt on their validity but expressed skepticism that the economic impact of IP infringement can be measured at all with any kind of accuracy. I had seen some of the studies mentioned in the GAO report and also felt that their methodologies and objectivities left much to be desired.
I’m not the only one who sees this imbalance. A couple of years ago, Professor Jonathan Zittrain of Harvard Law School said at a conference that the key issue in Viacom’s copyright litigation against YouTube was the cost and responsibility of implementing copyright filtering technology. Litigations such as that one and similar ones like Universal Music Group v. Veoh are really attempts to obtain or rebuff technological mandates, so that the government decides (or doesn’t decide) who has to pay for what technology. There may well be legal and philosophical principles that guide such decisions, but there are economic ones as well, and these go largely unexplored.
Despite the GAO report’s pessimism, I believe that if the questions are posed carefully and the research is done well and objectively, we can get some answers to questions like these:
- How much better is a content protection system that costs more to implement, in terms of both content security and the consumer experience?
- What are the differences in cost-effectiveness and user experience between proactive and reactive solutions to infringement? (DRM is an example of a proactive technology. Forensic watermarking is an example of a reactive one.)
- What is the appropriate economic consideration or incentive in requiring network operators to be accountable for their users’ copyright infringements through means such as filtering technologies and “progressive response” laws?
- And many others that I could think of.
The second issue that I’d like to mention today is what I call the trap door between laws and technologies.
It’s the digital age; everything about digital content is automated and instantaneous: copying, distribution, storage, searching, browsing, playback, etc. Everything, that is, except decisions about copyright infringement. You can do whatever you want with content, but in a large and growing number of cases, you have to call lawyers in to decide questions of legality. Or as Larry Lessig once said, “Fair Use is the right to hire a lawyer.”
I prefer to say that Fair Use is a trap door into the legal system. Whenever you get to a copyright gray area, you fall through the trap door, and you have to stop doing what you’re doing.
The problem is not just that people have to hire lawyers and embark on potentially long legal proceedings. It’s also that consumers and especially entrepreneurs tend to shy away from activity that may or may not be legal, because of the fear of going through a legal process to get the question decided.
My view is that the trap door is itself a chill on expression and innovation. It’s as if you’re driving; speed limits aren’t posted, and you have to guess how fast you can drive based on the width of the road, type of road surface, presence of pedestrians, and so on – and if you aren’t sure, you could pay a traffic lawyer to go spend a year figuring it out for you — all so that you can drive to the mall one afternoon or, as Google apparently just did, invent a new type of self-driving car.
Wouldn’t it be easier if we had a copyright legal system that enabled at least some degree of automation of decisions on fair use and other issues? Apparently not, according to most lawyers. When I raised this possibility on a panel at my last conference, the attorneys on the panel – who represented a broad range of copyright interests – reacted with a mixture of bemusement and annoyance.
But my view is that this step is unavoidable given the realities of the digital age. And in fact, like it or not, our legal system does introduce rule-based judgments about appropriate use. For example, the Copyright Office’s triennial rulemaking on DMCA 1201 produces a list of legally permitted uses. But of course these are severely constrained and don’t have much practical impact.
The problem, once again, is that arguments are being made on philosophical or emotional rather than fact-based grounds. People say that Fair Use shouldn’t be made more automatable because business models and technologies change too rapidly, and it’s the flexibility that gives the law its staying power. That may be true, but to me it’s a cop-out.
The issue has just not been explored properly. It may well be that our principle-based Fair Use system is better, in some sense, than, say, the European system or some other type of copyright regime. But we don’t really know one way or another. And by the way, what I’ve said applies not only to Fair Use but to Section 109 and other parts of the copyright law.
A nonprofit organization called the Digital Media Project tried to solve this problem several years ago. The DMP was created by Leonardo Chiariglione, the founder of the MPEG standards body. They tried to do something that could have been great, if only they had finished the job.
The DMP created an open standard DRM technology. One of its design goals was that this technology should support what they called Traditional Rights and Usages (TRUs), which vary from one country to another according to copyright laws. From what I can tell from reading their documents, the DMP made some progress on mapping TRUs to digitally expressible and automatable constructs, but it essentially abandoned the effort three years ago. They did create a long list of TRUs but only came up with a few examples of the mapping.
Someone ought to try to continue the work that the DMP started — though with a different goal: not to try to shoehorn existing copyright constructs into a DRM system, but just to see how far it could reasonably go. Right now — the Copyright Office’s DMCA rulemaking notwithstanding — rules about appropriate use arise primarily from a very ad hoc combination of settled case law precedents (such as parody or criticism being fair use) and industry convention (such as for music sampling). Research could be done to explore both the boundaries of how current copyright law can be made more amenable to technological implementation and the pros and cons of changing copyright law so as to make the trap door smaller.
Those are the two sets of issues in digital copyright that I believe would benefit from the research that the committee contemplating. Thanks for your attention, and thanks again to the committee for inviting me today.
Fair Use and the DMCA Triennial Rulemaking July 29, 2010
Posted by Bill Rosenblatt in Events, Law.3 comments
On Monday the United States Copyright Office released the results of its triennial rulemaking on section 1201(a)(1) of the copyright law, popularly known as DMCA after its 1998 enactment as part of the Digital Millennium Copyright Act. The law criminalizes hacking of DRMs, or to use the legal term, TPMs (Technical Protection Measures).
The law requires that every three years the Copyright Office conduct a process for designating exemptions, which are classes of works protected by TPMs that can be hacked legally. The Copyright Office accepts input from the public and then decides which exemptions to grant. Granted exemptions only last until the next rulemaking.
The purpose of the triennial rulemaking is to help ensure that the DMCA stays relevant to new technologies and enables actual uses of copyrighted works that are fair and that the public demonstrates are significant. At the same time, the exemptions that the Copyright Office can grant are quite limited in scope, and some ambiguity has already existed about that scope.
This time around, six of the 19 submitted classes of works were granted as exemptions. The exemption that got the most publicity is, ironically, the one that shows best how TPMs and the DMCA have evolved beyond their original intended purposes: it is now legal (at least in copyright law) to “jail-break” Apple iPhones and iPhone apps.
Another exemption granted by the Copyright Office pertains to short clips of videos within protected DVDs. The previous rulemaking made it legal to hack DVD encryption in order to get extracts from movies or TV shows and use them for educational purposes. Now the exemption has been broadened to include using short clips for noncommercial purposes, period — as long as the use is for criticism or comment.
DMCA does not have a blanket exemption for “fair use of a copyrighted work,” or put perhaps more appropriately, ”works that, when protected by a TPM, cannot be used by the public in a manner consistent with Fair Use as defined in 17 USC 107, provided that such use is consistent with 17 USC 107.” Copyright advocacy groups have tried to get such a broad exemption approved, and there were attempts to pass such an exemption into legislation, but to no avail.
Instead, advocates have had to focus on narrow subsets of fair-use issues to get exemptions. Another granted exemption, for example, is software protected by dongles (physical devices that must be attached to your PC when you want to run the software) where the dongle doesn’t work anymore and is too obsolete to be fixed. This one carried over from the previous rulemaking.
What results from this process is, at least for protected content, a list of uses that are presumptively fair — albeit one that is patchy, incomplete, and ephemeral. But in other words, DMCA does what the actual Fair Use law was not designed to allow. The Fair Use law was designed to give courts flexibility to interpret cases brought before them according to guiding principles, not “lists of uses that are fair.”
Meanwhile, last month at the Copyright & Technology conference, I moderated a panel on Fair Use in the context of news publishing. The panel included Sri Kasi, general counsel of the Associated Press, which has been introducing technology to detect uses of its vast output of news content online and make at least a first-cut determination of whether such uses are licensed or “fair.”
I had an “a-ha moment” on this panel which relates to my observation above about the Copyright Office’s DMCA rulemaking. I had been asking the panelists about the possibility of making the Fair Use statute more fact- and rule-based, so that it might be possible to imagine a “Fair Use machine” that, say, a user-generated content website could use to decide whether to allow upload of content and under what conditions. (For example: here is a piece of a news story. Is the surrounding writing criticism or parody? Does it attribute the quote properly? And so on.) As everyone who studies the subject knows, such a “Fair Use machine” is inconceivable under current law.
The panelists (being lawyers, not engineers) didn’t think this was such a great idea. There was some discussion among the audience about industry conventions, such as the 30-second rule about music sampling for promotional purposes. Then came the a-ha moment: if there are widely-used industry conventions, then why do such rules need to be enshrined into law? Perhaps the law really should be reserved for only those cases when the parties can’t agree on such rules without going to court.
But my point is a larger one, and it’s bolstered by the machinations of the Copyright Office’s triennial DMCA rulemaking.
Technology governs content to a greater and greater degree nowadays. Its efficiency in letting ordinary people create, move, and copy content is breathtaking. But when there’s a dispute over copyright, especially one that isn’t decidable by industry convention, the deciding factor is a legal system that is slow, expensive, and often capricious in its outcomes. This is a problem that technology can help solve.
The exemptions granted in the DMCA rulemaking tacitly acknowledge the pervasive influence of digital technology. And while they often fall short of being machine-readable rules (e.g., how short do “short portions of motion pictures” have to be to qualify for the exemption, and what exactly is “criticism or comment”?), they move in that direction. That is, they give people guidelines on what’s fair and what’s not fair that are based on facts and circumstances of use, and that should not normally require hiring a lawyer or going to court.
An even better example is the exemption for hacking e-book DRM to enable the e-book reader’s read-aloud feature, so that the sight-impaired may enjoy the e-book. That’s another exemption that the Copyright Office carried over from previous rulemakings. That establishes “using read-aloud features s in e-book readers” as a quite straightforward fair use.
In any case, it seems to me that the Copyright Office triennial rulemakings represent a step — perhaps a small and tentative one in the grand scheme of things — towards avoiding what I have called a trap door into the legal system for fair use determinations, which is a chill on innovation in its own way.
The Copyright Office DMCA rulemaking process must, by definition, be revisited regularly — unlike legislation, which is notoriously time-consuming and unreliable. But despite my a-ha moment at the conference last month, I still say there must be a way to eliminate the trap door, or at least make it smaller. Perhaps expanding the scope of the DMCA rulemaking is the best place to start.
Webinar Postponed; C&T Conference Videos Up July 6, 2010
Posted by Bill Rosenblatt in Events.add a comment
The webinar on rights information management I will be giving along with Earley and Associates has been postponed one week to Wednesday July 14, at 1-2pm US east coast time. Once again, there is a nominal fee for attending, but if you email me, I’ll send you a discount code to get you in for free.
Also, we are in the process of posting video excerpts from the Copyright and Technology 2010 conference. First up is a seven-minute set of excerpts of my opening remarks; check back for others as Gotham Media Ventures produces and posts them.
Bill Rosenblatt
Azita Arvani
Bill Jones
Niels Thorwirth
