Yesterday, the EFF filed an amicus brief signed by some of the big names in computer science and software engineering to support the court decision in Oracle vs. Google that APIs are not copyrightable. The brief is well worth reading because it lays out in detail many of the instances over the last decades in which the non-copyrightability of APIs has turned out to be important for innovation. I also support this view which is based on concept that functions or methods themselves are not copyrightable (their description with a specific choice of words is).
To date this is how the law has been applied: you can get a copyright to your specific code — in fact that right is automatic — but that does not extend to what that code does (its function). This is of course highly analogous to how copyright is applies in other domains such as books: the copyright protects the expression but not the idea (e.g. the words chosen in Antifragile are protected but not the idea of anti-fragility). A change here would imply a massive and unwarranted further extension of what copyright means.
Nonetheless the situation is somewhat frustrating for startups who spend time and effort defining elegant APIs. In an ideal world we would have an intellectual property regime that instead of the full powers of copyright simply provides an attribution requirement. So if someone implements the API you have designed, they need to attribute it to you (including whenever possible a link to you). That would in no way restrict the ability by third party to implement APIs but would provide some recognition and potentially customers for the originator.
Germany’s parliament today passed the highly controversial “Leistungsschutzrecht” which is an ancillary copyright that requires payment for excerpting from and linking to content in some instances. When I walked around in a slight daze at Chicago O’Hare this morning after an all too short red eye flight, my Twitter feed was full of German friends and others outraged about the bill (just look for #lsr). Jeff Jarvis — who spoke out strongly against the law at this year’s DLD conference — in particular was tweeting up a storm.
I agree that the LSR is the wrong approach because it is a blunt instrument that will have significant collateral damage. Excerpting and linking are the lifeblood of the web. But it would be naive to think that there isn’t a problem here that needs addressing. It is very different if I excerpt and link here on Continuations than when Google does it. Why? Because I account for some vanishingly small faction of Internet traffic whereas Google often has 80 percent or more of all search queries.
When Larry Page took over as CEO of Google I wrote that I hoped he would address the problem of Google’s role in the Internet marketplace by figuring out how to share some of Google’s economics. Because that’s what this is all about. It’s about trying to fix rent extraction by a near monopolist in search. And that rent extraction is a very real issue (how do you think Google is financing self driving cars and Glass?).
Imagine for a moment a situation in which there are many competitive search providers and consumers switch easily between them. Now consider a company such as Yelp that has accumulated a lot of information about restaurants. If one of the search engines starts to publish more and more of Yelp’s data in the search results instead of finding the listing and driving traffic to it, Yelp could simply choose to not let that search engine crawl and index Yelp. That becomes a credible threat as consumers might switch to a different search engine if they can no longer find high quality restaurant data. That credible threat would over time lead to a situation where companies such as Yelp receive a licensing fee from the search engines for inclusion of the content, whenever including the content directly creates more value rather than driving traffic.
But with the market structure in search as it is, Google has been holding on to all of the value creation from including ever more content in its search results. All the while adding insult to injury by starting to build or buy competitive content services. That is not sustainable and Google needs to change its practices or we all risk seeing more legislation like the LSR that in trying to fix a market structure problem in search is likely to do more overall harm than good.
One of the great sacred cows of the movie business has been the theatrical release window. First a movie is only in theatrical release. Then there may be a period where it is only on DVD. And finally it may be everywhere including various online options. Over the years the theatrical release window has compressed as described for instance in this 2009 Wharton piece. But it still exists and I believe is a major contributor to piracy. Maintaining a theatrical release window is really the perfect example of imposing artificial scarcity.
So can we imagine a movie business where movies are available simultaneously with the theatrical release as high quality streaming and download options? Can studios make enough money to finance the films? And, can movie theaters make enough money to cover their fixed overhead?
There really seem to be only arguments for why this won’t ever work. First, is the claim that as soon as high quality digital options become available illegal downloads really increase. Second, is the notion that people will prefer to see movies at home over coming to the theater. But there are a great many arguments as to why this won’t be the end of the world. Here are just some that I can think of from the top of my head:
- The current degree of illegal downloading is higher than it would be if legal copies were readily accessible at a reasonable price. Eliminating the theatrical release window would likely reduce not increase illegal downloads.
- Revenues from product placement and merchandising are becoming much more important and increase with reach. Simultaneous digital availability will increase reach.
- Digital availability increases discovery and exposure which may result in people seeing the movie in a movie theater who would not otherwise have done so.
- In theater can offer things that will never be available at home. That can mean gigantic screens and extraordinary sound (e.g. IMAX) for some kinds of movies. But it can also mean enjoying a movie together with others.
- Eliminating the theatrical release window will force movie theaters to compete on the quality of the experience. This will mean better food, reserved seating and other service innovation — for instance, stick around to discuss the movie.
- With digital availability we might also see innovation in who operates movie theaters to begin with and how they operate. Showing a larger variety of movies and balancing screens based on actual demand becomes much easier in that world. This might actually reverse the Gigaplex trend and make smaller theaters competitive again.
Altogether I am convinced that doing away with release windows would actually result in a net improvement across the board. I suspect the pattern here will be similar to what we have experienced with previous technology-driven changes in the movie industry which went from being feared to being celebrated.
P.S. The arguments above are happily devoid of data. First, it’s hard to find relevant data as much of it is closely guarded by the movie industry. Second, estimating where a new equilibrium might be based on data from the current situation is likely to be impossible. This is a case where we won’t truly know until we get there.
Since my post last Friday about alternatives to SOPA/PIPA, I have started to talk to a bunch of people about the idea of a decentralized content registry. Here are some thoughts and questions that I have been kicking around since then.
A decentralized system could offer a new revenue stream for existing registrars and certificate authorities who are already at least partially equipped to deal with issues of verification. By having a competitive situation from the start the price for content registration can be determined by the market rather than set by the government.
We should figure out how to leverage DNS and DNSSEC in this context. The direction in which I am thinking is some kind of analogy to DKIM. Part of what this would require is an efficient way to create signatures even for large pieces of content, such as a feature length movie.
The scheme should probably specifically *not* support DRM and the idea of windowing either by time or geography. Why? Because those are exactly the types of artificial scarcity that piracy exploits. Instead all the content in the registry should be unencumbered and even externally cacheable.
Here then are some of the big questions to consider:
1. If the registry allows content owners to set a price (and likely a separate price for download versus streaming), then how does that money get remitted to the content owners? And how/where does usage get metered?
2. What is an efficient method for discovering copies that are not participating in the scheme? One idea here would be that content that participates in the registry gets fingerprinted. That would enable third parties to build services that report (presumably unsigned or mis-signed) copies that match the fingerprints. To that end it might be worthwhile considering a NIST competition for a publicly available content fingerprint technology (similar to NIST’s hash function competition).
I would love to hear from people who have thought about content rights registries before and/or work with some of the existing centralized ones. For this to work at Internet scale whatever solution comes out cannot be centralized.
With SOPA and PIPA shelved at least for the moment, it is time to start thinking about alternatives. It would be a shame if we limited our collective thinking here to slightly different versions of those bills instead of exploring what a different approach to copyright could be that doesn’t try to fight the characteristics of the Internet but rather embraces them, providing value for rights creators/holders, technology companies and endusers.
One interesting entry here is Ian Rogers (from Topspin Media) proposal for a rights and media registry. It’s worth reading the entire post and also the comments, which include good questions from Andy and clarifying answers from Ian. In essence such a registry would enable tech companies to deliver innovative user experiences on top of content, as long as they respect the prices set by the rights holders. Rights holders would be entitled to enforcement only if they participate in the registry.
I believe this direction is very promising and is also something that was recommended by a report that the UK government’s copyright office had commissioned. An important addition though would be that this should not be a centralized registry (which then requires an operator and become a single point of control and failure) but rather a standard for publication that would allow for a decentralized implementation.
Yesterday an international police operation resulted in the shutdown of MegaUpload and the arrest of at least four MegaUpload employees in Auckland, New Zealand. This action resulted in a large scale DDoS attack by the group known as Anonymous on web sites including the MPAA, RIAA, DoJ and even the White House. While I don’t have time today for a full scale analysis here are some salient point:
1. The fact that this shutdown and the arrests were possible shows quite clearly that existing laws already provide a meaningful ability to deal with large scale copyright infringement even when sites operate from abroad. That’s all the more reason why we don’t need additional new legislation.
2. According to ArsTechnica, MegaUpload was brazenly flaunting the DMCA by only disabling links to infringing content instead of actually removing it or blocking access to it entirely. That is a violation of both the letter and the spirit of that law and should not be allowed to continue.
3. As with any digital locker site, there were also legitimate uses of MegaUpload. Many people who had work or personal files on MegaUpload have taken to Twitter to complain about a lack of access to their files. This operation and others before it (such as the server seizure that brought down Curbed, Pinboard and Instapaper) raise the question how to minimize “collateral damage.”
4. The retaliation by Anonymous has the potential to meaningfully escalate the push for government intervention in the Internet for cybersecurity reasons. This comes at a bad time as we are trying hard to keep the government out of controlling the Internet.
What a week this has been! Apple too dropped another interesting copyright bomb yesterday by claiming sales rights to any books created with iBooks Author. It seems like we are at the beginning of what Cory Doctorow has characterized as the “Coming War on General Purpose Computing.” We live in interesting times indeed.
The proposed PROTECT IP act is an improvement on COICA, but still makes the wrong trade-offs between protecting copyright holders and defending the integrity of the Internet.
There are several major modifications from the COICA draft. The key ones are first that only the DOJ can initiate procedures against foreign web sites that would result in exclusion of these sites from DNS and second that for domestic websites the only type of injunctive relief available is financial (no advertising support, no financial transaction processing) and there is no DNS exclusion for domestic sites. Caveat emptor: this is based on my own reading of the law which you can find here as a PDF (in past legal debates I have discovered too many people copying wrong readings of laws from each other).
At first blush these might seem like a sufficiently good compromise position. What do we care if a few foreign torrent sites are no longer part of DNS in the US? And why not cut off the financial air supply for US sites that are copyright infringers?
Here is why we should care: the US should be the global leader in defending unfettered access to and usage of the Internet by citizens everywhere. Once we compromise the integrity of a basic service such as DNS in the name of copyright protection, we have no moral authority left to object to other nations manipulating the Internet for reasons that they consider expedient, such as suppressing political opposition. We cannot really criticize China for having a firewall once we start blocking foreign sites or cutting off domestic ones from their revenues on an injunctive relief basis, meaning without the other side being able to fight this in a court of law before the action is imposed as opposed to ex-post facto (yes, there are notice provisions in the PROTECT IP act but these are meaningless as currently drafted since there is no clear notice period and no ability to remedy).
This bill is the result of trying to impose the economics of scarcity by law into the realm of digital abundance. The sponsors of the bill refer to the sale of counterfeit goods as one reason for this bill but that strikes me as a red herring. This bill really appears to be about protecting publishers, music labels and movie studios in their existing form. I will argue in upcoming posts that employment in entertainment and intellectual property sectors can be helped more by embracing an open Internet than by fighting it and that on top of everything else PROTECT IP won’t even be effective on the terms laid out by its sponsors (for fairly obvious technical reasons, such as direct TCP/IP access).
Yesterday, a judge granted YouTube’s Motion for Summary Judgment in the Viacom v. YouTube litigation. This is a major victory for all user generated content (UGC) companies because it strongly affirms the DMCA safe harbor. Congrats to David Drummond and the legal team at Google. Given that Google has been defending Internet freedom on a number of fronts it must feel good for them to score this victory. Great coverage can be found over at the EFF.
With this decision it is even more important than ever before that any web company that has UGC — and that includes just having forums! — make sure to register with the Copyright office ($105). In addition to registering you also need to include appropriate DMCA language in the terms of service with a reference to the designated agent registered with the Copyright office. I am often surprised to find that startups that have extensive UGC components are not familiar with this.