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.