Bill Herman’s dissertation at Penn’s Annenberg School of Communication is called The Battle over Digital Rights Management: A Multi-Method Study of the Politics of Copyright Management Technologies.  It was written in 2009, and it presciently anticipates the online movement that led to the downfall of SOPA and PIPA two years later.

Herman — now a professor of film and media at Hunter College in NYC — looked at four legislative developments in U.S. digital copyright policy and measured how they were influenced by three types of communication: direct communications with legislators (e.g., lobbying), the press, and online.  The four developments were the Audio Home Recording Act (1992), the anticircumvention provision of the Digital Millennium Copyright Act (1998), efforts to revise the DMCA (2003-2005), and the FCC Broadcast Flag regulation (2006).

Herman’s research analyzes communications in those three arenas and grades them according to whether they tilt “strong copyright” or “strong fair use.”  He finds that communications with congress, which tilted strongly “strong copyright,” predominated in the earlier years; press reporting (in the Washington Post and New York Times) was roughly balanced, with a slight “strong fair use” tilt; then online communication took over the debate with a forty-to-one “strong fair use” slant and influenced the repeal of the FCC Broadcast Flag regulation in 2007.  Although Herman is unabashedly on the “strong fair use” side, his methodologies for identifying and characterizing these various communications are rigorous and do not show bias.

In his introduction, Herman writes: “While the time period under study does not include their ultimate triumph at the bargaining table — as of this writing, what I describe as the strong fair use coalition still has not won a major legislative victory — it does include the beginning of their time as a genuine force at that table.”  As a prediction of the online and copyleft communities killing SOPA and PIPA, this is pretty impressive.

Herman’s thesis goes into great detail about the ways in which the “strong fair use” axis posted lots of material online to feed the debate, while the other side didn’t. It’s a trove of factual evidence about how to shape policy debate in the Internet age (and how not to).  It also, in effect, shoots holes in the theory held by some strong-copyright people that a Google-led cabal caused the defeat of SOPA and PIPA.

I admit not to having read the entire 400-plus pages of the dissertation, though it contains a much more manageable 27-page introduction that summarizes the methodology and results.  With that caveat in mind, I can identify one shortcoming in Herman’s methodology that, if he had corrected it, might have changed the nature of his conclusions.

Herman tracked press stories that specifically covered the four legislative developments mentioned above.  But he didn’t track stories that covered the real-world marketplace of the technologies being regulated – articles by the likes of David Pogue in the Times and Walter Mossberg in the Wall Street Journal.  (Nor did he track online content about the same, from the likes of TechCrunch, CNet, etc., not to mention Internet ideologues like Cory Doctorow and thousands or millions of blogs.)

If he had done this, he would have found a much more anti-DRM tilt in the press during the early-mid 2000s than he did.  Articles from this period (and thereafter) took a populist, pro-consumer viewpoint: after all, people read Pogue, Mossberg, and CNet to help them choose the best digital content services and devices.  The job of these writers isn’t to defend the interests of copyright owners or content creators; it’s to help sell newspapers and drive traffic to websites.

These sources routinely praise digital content services and devices that offer as many rights to as much content for as little money as possible.  DRM can be used to enable new content distribution models, but it can also be used to force consumers to pay, limit interoperability, and restrict uses of content that are allowed under copyright law.  Thus it makes sense that these writers would paint DRM in a negative light.

One has to wonder how much the pro-consumer point of view in this press coverage influenced legislation.  The journalists who covered legislative developments during the period Herman studied did not overlap much with those who covered products and services. For example, Jenna Wortham, Jonathan Weisman, and Brian Stelter provided the bulk of legislative coverage at the Times, while over at CNet, Declan McCullagh wrote about policy and legislation while Greg Sandoval did (and does) most of the marketplace coverage.

Herman attributes the “strong fair use” coalition’s increased legislative influence to its greater effectiveness than the “strong copyright” community in putting its message out online.  But I would suggest that they had a lot of help from both professional and amateur writers about consumer media technologies, who led people to wonder why technologies like DRM exist and then what role government plays in them.

It might not be as easy to gauge that influence, but it was — and is — surely significant; and that means that the press could well influence digital copyright legislation more strongly than Herman surmises.  Herman seems eager to glorify the power of the Internet by itself.  While there’s no doubt that Internet forces killed SOPA and PIPA, what Herman calls the “strong fair use” movement has roots outside of the copyleft academia and advocacy groups that he credits (he was an intern at Public Knowledge and considers Larry Lessig a hero).

Regardless, the defeat of SOPA and PIPA has made it clear that the online community now has a lot of power over policy debate.  Gary Shapiro of the Consumer Electronics Association wrote a letter to the editor in the Times admitting that “back rooms do not exist on the Internet.”  I would suggest that if the RIAAs and MPAAs of the world want to understand how to engage the online public in order to shape future legislation, Herman’s thesis ought to be required reading for them.

As a postscript, there is now a bit of overlap in coverage of digital content products and services and legislative policy, now that people are digging through the post-SOPA/PIPA wreckage and considering what to do next.  David Pogue, for example, got around to actually reading the legislation back in January as it was failing.  He made two badly-needed observations: that many of the objectors to SOPA and PIPA didn’t like it simply because it could cut off their supply of free content, and that such people generally didn’t have a clue about the actual legislation and acted on misinformation about it.  Let’s hope that now that Pogue has connected the dots, more people will follow that train of thought to some reasonable policy developments.

This led to some speculation on Library Journal’s TheDigitalShift website about whether Tor will still require DRM for library e-lending, where I said that retail and library lending are two completely different channels, and if a publisher drops DRM for retail, it probably has no bearing on whether it will drop DRM for e-lending.  Indeed, the tech publisher O’Reilly & Associates is known for its anti-DRM stance but uses DRM in e-lending (and uses a form of watermarking in its downloadable PDFs).

In fact, Tor’s official policy on library e-lending is not to allow it at all, because its corporate parent Macmillan (one of the “Big Six” trade publishers) doesn’t allow it.  But what would happen if a library purchased a Tor e-book and made it available for lending?

First of all, that’s not how the vast majority of public library e-lending works.  Public libraries use OverDrive’s system, which is a “white label” service that packages e-books in DRM and handles all of the aspects of the website and lending.  (OverDrive currently offers a choice between the Mobipocket DRM for Kindles and Adobe DRM for just about everything else.)  So OverDrive would have to make the DRM-free e-book available, and that’s not how its system works .  In other words, libraries tell OverDrive which titles they want and pay for them, then OverDrive does the rest.

Secondly, even if a library ran its own system (which a handful do, such as the Douglas County public library system in Colorado), it would be violating the Terms of Service of the retailer from which it bought the DRM-free e-book.  That gets us back to the legal concept of Digital First Sale.

The concept of First Sale (known outside the United States as “exhaustion”) in copyright law says that once you lawfully obtain a copyrighted work, you can do what you want with it: sell it, lend it, throw it away, etc.  The applicability of First Sale to physical media products is straightforward, but its applicability to digital downloads, such as e-books, is as clear as mud.  The U.S. Copyright Office was asked for an opinion on Digital First Sale over ten years ago; its 2001 report essentially said “Not now, maybe later.”

Digital First Sale is currently a rather arcane topic in copyright law, but a showdown over the concept may be coming soon.  E-reading is exploding in popularity, and publishers in certain genres (at the moment, mainly science fiction and tech, i.e. genres for tech-savvy readers) are DRM-free.

The third development that may lead to a Digital First Sale showdown is a project at the Berkman Center for Internet and Society at Harvard called the Digital Public Library of America (DPLA).  Remember all those millions of e-books that university libraries digitized for Google, which led to publishers’ and authors’ huge lawsuit against Google — which is still unresolved?  The DPLA intends to aggregate them — as well as other sources of material, such as the Internet Archive — and put them to use at the service of public libraries nationwide.

The DPLA is expected to launch next year.  The current plans are still taking shape, but it seems clear that it needs Digital First Sale in order to have any impact at all; otherwise publishers can continue to forbid e-lending, and DPLA won’t have much content to offer other than public domain material that’s available for free anyway.

As I’ve said before, the forces arrayed against Digital First Sale are formidable: they include authors, publishers, and retailers.   For example, the DPLA’s proposal to make works available that are at least five or ten years old seems like it will meet stiff resistance from all of those camps.  But there are few (if any) entities on earth better equipped to fight for Digital First Sale than Berkman Center, with its Harvard Law professors and its corporate sponsorship from the likes of AT&T, Google and Microsoft.  In fact, if and when the showdown over Digital First Sale comes, it will be interesting to see what side of the issue Google takes — as both a beneficiary of looser copyright laws and an e-book retailer.

Graduated response is on many Europeans’ minds nowadays.  We will have Eric Walter, Secretary General of Hadopi, speaking on the subject.  M. Walter was appointed by French President Sarkozy to run the authority for administering the progressive response law that France enacted three years ago — and which many other countries are studying to gauge its effectiveness.

Our Conference Sponsor, MarkMonitor, is working with me to organize a panel on the collection and use of piracy data.  The ground is shifting in the piracy monitoring field, from a focus purely on enforcement towards use of the data for business intelligence purposes.  MarkMonitor will explore this trend and what it means for copyright owners.

I have been working with Nic Garnett, former Executive Director of IFPI and now an attorney at Simons Muirhead & Burton, on the legal track of the agenda.  We have added a panel covering international perspectives on digital copyright, to be moderated by Nic himself.  He’ll have panelists from the US, Australia, and continental Europe sharing developments and comparing notes.

We will also have a good discussion of developments in the area of rights registries, featuring representatives of the Linked Content Coalition and the WIPO International Music Registry.

Our speaker roster is almost full, though we have a couple of openings left.  (In particular, we’d love to have someone on the skeptical side of the graduated response issue to balance things out.)

In addition, two sponsorship opportunities remain.  Please inquire if you are interested in that.

Finally, the early bird registration offer will expire shortly… so register today!  I hope to see many of you in London on June 19.

We are partnering with Music Ally to present Copyright and Technology London 2012 on June 19, at the King’s Fund, located near Oxford Circus in central London.  Online registration is available, with Early Bird discount through May 4.

Please see the conference page for the agenda and program.  We are proud to have MarkMonitor as our Conference Sponsor, as well as Civolution and the law firm of Simons Muirhead & Burton as Partner Sponsors.  Sponsorships are still available; please inquire to receive a brochure.

The conference program focuses on topics that should be of particular currency and interest to Europeans, including graduated response, rights registries, multi-platform content security, and content identification technologies.  I am working with Nic Garnett of Simons Muirhead on the law and policy aspects of the program.

We are currently accepting proposals for moderating and speaking; deadline is April 30.  Please send proposals with the following:

• Name, title, and organization
• Session(s) requested
• Brief summary of speaker/moderator’s point of view, perspective, and/or experience regarding the panel topic(s)
• Full contact information

Please note that personal confirmation from the proposed speaker will be required before we will put him or her on the agenda, and moderator proposals will receive preferential treatment.

I am excited about this event and hope that many of you will attend or participate!  Watch this space for more details as they emerge.

Users can purchase each Harry Potter e-book title once and download it up to eight times, in multiple formats.  That’s a real convenience; it’s a “rights locker” scheme reminiscent of UltraViolet for movies.  As I mentioned previously, the Kindle and Nook versions have DRM.  The EPUB version that I downloaded is not DRM-protected; instead it contains two things: “This book is watermarked and was acquired by user ec107c00b9577436d6354e54cd9da5c9 on 31 March 2012″ on p. 3, and various bits of data inserted invisibly into images and other places inside the book.

This data ought to be easy to remove without trace.  The files appeared on torrent sites very shortly after the Pottermore Shop went live.  A programmer with middling skills could write code that detects and removes the data; even if the illustrations in the book were a bit damaged, readers wouldn’t care.  Such a hack for Booxtream doesn’t exist yet (at least publicly), but the irony is that if this scheme catches on with more authors and publishers, it surely will.

Such a program would be perfectly legal; it would not violate anticircumvention law such as DMCA 1201 in the United States.  It would be what I call a “one-click hack,” like the (illegal) DeCSS rippers that hack the weak CSS encryption on DVDs, which the non-tech-savvy can easily use and which is permanent.  In other words, it would impose the same level of effort on users as a format conversion tool, such as the free Calibre, which can (among other things) convert EPUB files to MOBI files for Kindles so that users can get DRM-free Harry Potter titles for their Kindles after all.

Furthermore, even though Section 1202 of the DMCA forbids removing “copyright management information” from files, the watermark does not qualify as copyright management information as defined in the law.  This means that under U.S. copyright law, the user is free to apply such a hack.

Some would argue that watermarks are no different from weak DRMs (like CSS) in terms of the “speed bump factor” because both have one-click hacks available.  But the fact that watermark removal tools are legal and DRM strippers aren’t makes a difference. DRM strippers must hide in the shadows, but watermark removal tools can exist out in the open.  If they are available for free (which seems very likely), then it would be difficult to try to stop them through legal channels.  I could even see a watermark removal feature built into a popular application like Calibre, since it’s free and open-source.

Pottermore’s Terms and Conditions forbid altering or removing the watermark data, but this may not mean much.  It is possible that copyright law may prevail over such terms; this is a legal gray area.

The legal principle here is First Sale (Section 109 of the U.S. copyright law), known as “exhaustion” outside the U.S.  This says that the publisher has no further control over a work once a person has obtained it lawfully.  While this law enables libraries, used book/record/video stores, and other such institutions for physical goods, its applicability to digital files is unsettled — although as I said previously in connection with ReDigi, the digital music resale service, both media companies and digital retailers are highly motivated to ensure that Digital First Sale never happens.  This Harry Potter case is yet another example of why.

(By the way, an update on ReDigi since I wrote about it last November: EMI sued the company back in January.  The following month, the judge in the case denied EMI’s request for preliminary injunction, meaning that ReDigi can keep operating as the case goes to trial.)

This all leads me to question why Pottermore bothered with this watermarking scheme in the first place.  It seems rather pointless.

I assume that “user ec107c00b9577436d6354e54cd9da5c9″ is an obfuscated version of my user account ID on Pottermore.  I also expect that Booxtream lets the retailer use whatever character strings it wants.  If Pottermore really wanted to discourage me from infringing the copyright on the e-book, it would put my email address, or even the number of the credit card I used to buy it (which was an option in the now-discontinued Microsoft Reader e-book technology).  Instead it put a character string that means nothing to nontechnical users, presumably to avoid privacy complaints (which would also encourage hacking).  This “social DRM,” at least the way Pottermore has implemented it, is a shy and retiring beast.  There is also a standard legalese copyright notice in the e-book, but no one pays any attention to those.

Given that non-EPUB versions of the Harry Potter e-books have DRM, I suspect that Pottermore would have used DRM if it were possible to have a seamless user experience with EPUB files, as is the case within the Kindle and Nook ecosystems.  (Pottermore could have chosen to do without DRM for those formats too, but it didn’t.)  The lack of a standard DRM for EPUB integrated with EPUB reader apps makes such an experience unobtainable; hence Pottermore’s use of Booxtream instead of DRM.  In other words, Pottermore is not against DRM, but it intentionally traded off the best possible user experience and respect for user privacy against some level of protection.

I fail to understand what behaviors Pottermore is trying to prevent here.  Even a plain-language message to purchasers — which involves no technology and costs nothing to implement — would alert them to legal and contractual limitations on use.  Instead, the current scheme, with its cryptic message, legalese, and hidden data, doesn’t really alert anyone to anything, let alone prevent anyone from doing anything.  At best, it’s a “Gotcha!” for nontechnical users who upload files to places where Pottermore presumably pays Booxtream to look for watermarked files.  Those aren’t the users whom Pottermore should be most interested in targeting, and if Booxtream does catch anyone and cause a nastygram to be sent, then backlash will ensue.  And isn’t Pottermore trying to prevent backlash in the first place?

Retailers that pay for rights technology ought to get something for their money.  Booxtream might be effective if used differently; otherwise I don’t see much benefit to Pottermore for this watermarking scheme.

OnCopyright is a true open-ended and open-minded discussion about copyright issues.  Apart from a welcoming speech by CEO Tracey Armstrong and neutral panel moderation by CCC executives, CCC does not insert itself into the event; it just invites speakers from across the copyright spectrum and lets them have at it.  The concept is refreshing and bold.

It’s a terrific show, and this year’s edition served to point out some of the problems with copyright today.  The best part of it was the featured speech by Robert Levine, author of the wonderful book Free Ride.  Levine summed up current problems with copyright neatly when he said, “Right now we have the worst of all worlds: copyright is too long and too broad, but we’re not enforcing it.”

Levine’s speech contained several keen insights and rhetorical zingers. Two of my favorites, paraphrasing: “The MPAA claims that piracy is costing seventy-teen skadillion dollars.  Google claims it is costing $2.56.  (I’m only kidding… about the second one.)”; “Yes, I could do all the things that publishers do by myself, but then I wouldn’t have time to do the writing.  I could also grow my own vegetables.”  But he’s a journalist at heart and thus deals primarily in facts instead of theories or agendas.  And he got himself an excellent factual corroboration of the statement above during the conference.

It came through Erin McKeown, a musician, Future of Music Coalition board member, and fellow at the Berkman Center for Internet and Society at Harvard.  She served as a panelist (and performed some of her music).  As an indie musician and Berkman fellow, McKeown reflexively follows the anti-Big-Media, copyright-too-restrictive line of thought. For example, she professed a distaste for the kind of “backroom deals” that led to the aborted SOPA and PIPA legislation.

Yet on the other hand, McKeown told a story of how her music was used in a commercial in eastern Europe; she wanted to be compensated fairly, but a lawyer told her that it would take one to five years (to say nothing of legal fees) to pursue the copyright claim.

As Rob Levine pointed out, whether a publisher or record label is “good” or “evil” is not the point.  Here’s an artist whose work was exploited for commercial purposes with neither permission nor compensation.  She wanted fair compensation, not punitive damages.  And she was told that effectively there’s no way to get it.

In other words, the system is currently set up so that virtually the only way to enforce copyrights is to be able to enlist the services of lawyers over a long period of time and to be able to wait that long period before perhaps seeing any income after legal fees.  (That’s why indie artists like collective licensing: they get something as opposed to nothing, and they get it fairly quickly and with minimal effort.)  At the same time, when I brought up the idea that the copyright legal system’s lack of “bright lines” makes it too inefficient and difficult to enforce in the digital age — my usual lone-voice-in-the-wilderness complaint — I got nothing but pushback, mostly from lawyers, claiming that such “flexibility” is a benefit, not a drawback.

More than one content creator at OnCopyright confessed to having mixed feelings when they found their work on illegal sites: they were angry that their work was being taken without their permission yet happy and flattered that someone was interested enough to do so.  Trouble is, flattery doesn’t put food on the table.

In addition, the panel will feature other presentations from Spencer Stephens, CTO of Sony Pictures; Theirry Fautier of Harmonic; Will Law from Akamai; and Petr Peterka of Verimatrix.  I’ll moderate a panel discussion, with audience Q&A, on the challenges and opportunities of multi-screen video content services.

The event will the the morning of Tuesday April 17.  Space is limited but registration is free; sign up here.

Some major-publisher audiobooks are already DRM-free.  But does this mean the end of DRM for major-publisher e-books?

No.

First of all, it’s possible to buy Harry Potter e-books on all of the major e-book retail sites (or through them via affiliate links).  At least the Kindle and Nook format e-books use DRM.  Only the EPUB-format files are DRM-free.

Furthermore, Harry Potter is highly anomalous in the world of book publishing: it’s a goldmine of revenue from many sources, far beyond the books themselves.  Harry Potter has more in common with Disney cartoon movies than with most other books or book series.  The animated features that Disney has released in recent years are all part of vast orchestrated campaigns of ancillary revenue sources: books, toys, theme park rides, ad-revenue-bearing TV shows, Broadway musicals, and on and on.  Think The Lion King, Cars, or Toy Story.  In fact, Harry Potter ancillary revenue streams have more than doubled book revenues already.

In other words, J.K. Rowling doesn’t need to maximize revenue from selling e-books, especially since she does not plan to write any more Harry Potter titles.  Instead, her strategy is surely to use e-books — and print books, for that matter — for their marketing value, to induce her vast audience (and their parents) to purchase the stream of Potter-themed products that her organization will release for years to come.  When viewed that way, DRM becomes a liability.

Instead, Rowling is launching an entire site devoted to All Things Harry: Pottermore Shop is part of the overall Pottermore site, which is currently in beta.  This will enable the Rowling team to establish relationships with their customers that are far richer and more lucrative than if the e-books were available only on Amazon, Barnes & Noble, or other retail sites.  Pottermore will add new content and features on a regular basis and, of course, include lots of social features for Harry fans.

Pottermore is likely to be a popular destination site; Harry Potter is perhaps the only publishing property that doesn’t need Amazon or B&N.  The trade publishing industry would love to have more blockbuster franchises like Harry Potter, but given the way the industry and authors work, such properties are likely to be fewer in number than those found in the movie industry.  (Incidentally, Scholastic, Rowling’s publisher, may have its hands on the next blockbuster franchise: Suzanne Collins’s The Hunger Games.)  Those rare mega-properties don’t need DRM, but that has nothing to do with the question of whether the rest of the publishing industry does.

In addition, publishers have much more limited ability to monetize big franchise properties than movie studios do, for the simple reason that authors own the copyrights to most trade books.  Of course, publishers can negotiate rights that go beyond print books or e-books.  But it’s instructive to note that the word “Scholastic” appears exactly nowhere on the Pottermore site.

Of course, the British Phonographic Industry (BPI), the equivalent to the RIAA in the United States, lost no time in hailing the decision and claiming almost total victory over ISPs in the two-year legal battle.  But the word “almost” takes on an interesting resonance regarding the one point that the media industry didn’t really win: the apportionment of costs for the progressive response program.

As I keep saying (and thereby quoting the brilliant Jonathan Zittrain of Harvard Law School), the question of who pays is the “gravamen” — the essence or most serious part — of these disputes over copyright policing.  The final Court of Appeal process revealed payment terms that otherwise got very little attention during the deliberations over the Digital Economy Act.  It turns out that copyright owners have to pay 75% of the costs of running the network monitoring functionality, the judicial process, and appeals costs.  ISPs have to pay 25% of the first two but none of the third cost category; the latter was the point that ISPs won.

The financial terms actually fall far short of the results that copyright owners would like to achieve in similar legal disputes.  For example, Viacom would no doubt like YouTube (and other content-sharing sites) to pay all of the costs of enforcing copyright on their sites.  Such costs would run into millions per year (whether in pounds or dollars).

By that standard, as far as this particular aspect of the Digital Economy Act is concerned, I would not call this a victory for copyright owners at all; I’d call it a 75% capitulation.

Yet I would also say that it’s good news for the industry in general.  If copyright owners are responsible for the majority of costs of operating the progressive response system, then they will have an incentive to see that it runs accurately, fairly, and efficiently.  If the technical mechanism for detecting infringers is too aggressive, then they will spend too much money on the appeals end (and deal with public outcry which could lead to repeal of the law).  If it’s too loose, then they don’t catch infringers and waste their money.  The onus for efficiency and accuracy will be on the content recognition and network monitoring vendor that is selected to run the system.  If the technology doesn’t work well, the vendor will need to improve it or be (as they say over there) sacked.  That’s as it should be.

These graduated response regimes are best viewed as experiments in reducing online copyright infringement, and they should be continued if an appropriate balance among accuracy, cost-efficiency, and fairness to the public can be found.

The missing piece in the Digital Economy Bill is that that copyright owners have no incentive to ensure that the technical mechanism does not disadvantage users  by hindering the ISPs’ network performance.  My understanding is that this aspect of it needs to be determined by Ofcom, the UK’s telecommunications regulator, and that this has not happened yet (feel free to correct me by comment if I’m wrong).  Ofcom needs to ensure that technical mechanisms do not interfere with ISPs’ performance and that any disputes should be resolved by facts and independent measurements. And if it turns out that ISPs need to install more equipment (e.g. faster servers or routers) to restore network efficiency, then copyright owners should contribute to those costs as well.

At a more abstract level, I’d say that copyright owners have been given a bigger prize than the Act itself: the right and responsibility, mandated by law, to ensure that these rights technologies work fairly and efficiently.  (Copyright owners already pay network monitoring companies like MarkMonitor and Peer Media, but not as part of an institutionalized, nationwide infrastructure that is connected to legal apparatus.)  This will be healthy for the rights technology industry.

In this way, the Digital Economy Act is an improvement over anticircumvention legislation, such as in the U.S. Digital Millennium Copyright Act, which gives vendors of DRM technology legal backstops so that they have limited accountability for how well their technologies actually work.   True accountability only comes if the entity paying for the technology has no choice but to demand that it works well.