Inkwell: Authors and Artists

    

Our next guest is JD Lasica.

J.D is co-founder and executive director of Ourmedia, a global
repository and community space for grassroots video, audio, photos and
text. A writer and blogger, his book about the personal media
revolution -- "Darknet: Hollywood's War Against the Digital Generation"
-- is the result of two years of reporting and research. J.D blogs
about citizens media and digital rights at Newmediamusings and
Darknet.com, and he has just started a Grassroots Talent Agency. He
lives with his wife and 6-year-old son in the San Francisco Bay Area
and is a frequent speaker and panelist at new media and technology
conferences. Oh, and he LOVES the WELL and everything it represents.

Former Inkwell host Jon Lebkowsky leads the conversation.

Jon is an evangelist for the Internet, the World Wide Web,
and digital media, has been involved in diverse online initiatives
since 1990, focusing on practical, legal, and ethical issues of
emerging technologies and leading teams of information architects and
developers creating the infrastructure for innovative web systems.  He
is currently CEO of Polycot Consulting in Austin, Texas; President of
EFF-Austin, Vice-President of Austin Wireless, and a contributor to
Central Texas' Digital Convergence Inititiative.

Welcome, J.D and Jon! 
  

    
Thanks, Cynthia!

Starting with the obvious first question: what is the Darknet?
  

    
Hey, Jon and Cynthia, good to be here. Thanks for the kind invitation
to talk about the issues raised in "Darknet."

The Darknet, at bottom, is the collection of spaces where unauthorized
or illegal file sharing takes place. Most media outlets use the
Darknet in the narrow sense to refer to the private, secure, encrypted
spaces online set up to exchange files without fear of detection --
sites like Blubster and WASTE and the new initiative Ian Clarke
announced 2 weeks ago that will expand darknets from small groups of a
few dozen people to potentially millions of people.

My book deals with these kinds of darknets, but also points out that
Darknets in a wider sense refer to any kind of illicit file-sharing
network -- including the years-old sneakernets on college campuses,
where kids trade, buy and sell CDs and DVDs of movies and software
downloaded from warez sites and the Internet; Usenet and IRC Chat,
where strangers exchange files; and a new wave of legitimate darknet
companies like Grouper and imeem and Outhink's Spin Xpress (which I'll
bet most of you haven't heard of!).

Darknets are not evil -- at least in my book. They're the public's
reaction to overly restrictive copyright laws and bass-ackwards media
business models. In some ways, darknets are becoming the last bastion
of the digital freedom fighters (alongside the folks who just want to
snag free stuff). So it's a decidedly mixed bag.

I've actually been approached by one of these legitimate darknet
companies, and we may do some work together, to help people exchange
their own media with friends and family -- instead of swapping
Hollywood's media.

The book's title is also a metaphor for what the Internet is in danger
of becoming if Congress, the courts and the federal regulatory
agencies continue to clamp down  on an emerging, vibrant new form of
grassroots media that borrows from the culture at large. So it's a
warning about where we may be heading unless we come to grips (and
Washington gets a grip) on the realities of digital culture.

One last thought: The book "Darknet" is not about darknets. It's about
big media vs. grassroots media, Hollywood vs. the Long Tail. It's
about the ethos of the emerging digital culture as it bumps into the
realities of analog-era laws and policies.

Back to you, Jon. :~)
  

    
Could you say more about the distinction between unauthorized and
illegal file sharing? Also, why would Congress et al want to suppress a
vibrant new form of media?
  

    
You see the music labels and movie studios toss around the words
unauthorized and illegal indiscriminately, as if they're the same
thing.

They're not.

Does anyone need authorization to sell a CD or DVD? Of course not. You
bought 'em, you're free to sell 'em (under the first sale doctrine) or
do what you want with 'em. Right?

Well, maybe not. It's illegal to back up a DVD because you'd have to
break the studio-imposed encryption on the movie. (In the book, Jack
Valenti told me: You want a second DVD? Go buy it. My response: What,
Valenti doesn't have grandkids? DVDs can break, get gooey fingerprints
on them, and stop working in a thousand different ways.)

Cory Doctorow at the EFF makes a compelling case that unauthorized
doesn't mean illegal. We still have digital rights (a still-murky term
for an emerging cultural precept) and fair use rights to make certain
uses of copyrighted materials -- yes, even music from the record labels
and TV shows and movies from Hollywood -- without obtaining the
copyright owner's permission. As Larry Lessig and others have pointed
out, those rights are in danger of disappearing in the digital age, as
Congress and the courts have been willing to cater to big media's wish
list at the expense of the public's traditional rights.

What's illegal to swap online, either on a darknet or on a
file-trading service? Well, I'm not in the corner of those who say all
media should be free, that bits are bits and once a movie or musical
work is released online, all bets are off. When people stop buying
music or movies because they can snag 'em for free in the Darknet, a
certain threshold has been crossed, and people are smart enough to know
where that line is.

As to your second question, Jon, that's an easy one. Congress has
become so used to accommodating the interests of Hollywood and Big
Entertainment that they don't even really understand (with a few
exceptions) that there's even another side to this battle.

My own senators, Dianne Feinstein and Barbara Boxer, are basically in
the pockets of Hollywood, despite the fact that Silicon Valley and the
tech sector are 10 times bigger. They're bought into the Jack
Valenti-inspired rhetoric about piracy and stealing. 

After all, if Hollywood hasn't authorized the way in which you're
using their media, it must be wrong. Right?
  

    
BTW, your question raises a whole range of related issues that perhaps
we can touch on over the next week.

Like, the fact that the record companies believe that you don't have
the right to make a mix CD from CDs that you've purchased to give to
your mother, brother or niece.

Like, the distressingly large gray zone surrounding fair use in
cyberspace (an issue we deal with on a regular basis at Ourmedia.org).

Like, the large range of DRM-ready, customer-unfriendly technologies
moving into our living rooms and consumer electronics gadgets by
stealth. 

We're all potential criminals, after all. At Hollywood's behest,
Congress is creating a nation of digital felons.
  

    
Let's start with fair use. Brad Templeton, Chairman of the Board of
Directors of the Electronic Frontier Foundation, has a good description
in his "10 Myths about Copyright"
(http://www.templetons.com/brad/copymyths.html):

"The 'fair use' exemption to (U.S.) copyright law was created to allow
things such as commentary, parody, news reporting, research and
education about copyrighted works without the permission of the author.
That's important so that copyright law doesn't block your freedom to
express your own works -- only the ability to express other people's.
Intent, and damage to the commercial value of the work are important
considerations. Are you reproducing an article from the New York Times
because you needed to in order to criticise the quality of the New York
Times, or because you couldn't find time to write your own story, or
didn't want your readers to have to register at the New York Times web
site? The first is probably fair use, the others probably aren't.

"Fair use is usually a short excerpt and almost always attributed.
(One should not use more of the work than is necessary to make the
commentary.) It should not harm the commercial value of the work -- in
the sense of people no longer needing to buy it (which is another
reason why reproduction of the entire work is a problem.)"

What are the issues with fair use that you're seeing at Ourmedia.org,
and elsewhere in cyberspace? (You might also want to say more about 
your role with Ourmedia).
  

    

(Note: offsite readers with questions or comments may send them to
<inkwell@well.com> to have them added to this conversation)
  

    <scribbled by dfowlkes Tue 3 Jul 12 10:14>
  

    
I think any time someone posts Templeton's FAQ, they should also post
Section 107 as it's something the average person can easily understand:

 
<http://straylight.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----
000-.html>'

107. Limitations on exclusive rights: Fair use
Release date: 2005-08-01

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.
  

    
Thanks, jet!
  

    
To answer Jon's question ... I was talking with Brad Templeton at a
party last week (the EFF is turning 15 -- pretty amazing). Brad hits
the nail on the head.

Fair use is a real ball of wax, regardless of whether you're a lawyer
or not (and I'm decidedly not).

On the one hand, MIT media scholar Henry Jenkins argues (I think I cut
this out of the book) that fair use is a concept chiefly reserved for
a narrow set of players: academics (who use copyrighted materials in
the classroom), journalists (who borrow from copyrighted materials in
their reporting), and a few other members of the elite. Technically, he
says, the law favors the views of those like former MPAA chief Jack
Valenti, who insists on permission culture -- asking permission of the
studios, record companies and other copyright holders before you can
borrow from their works in any meaningful way. The lobbyists in DC who
crafted this carveout in the Copyright Act really didn't have you or me
in mind, and certainly never anticipated the world of the Internet,
which turns all of us into global publishers.

Larry Lessig of Stanford and Gigi Sohn of Public Knowledge also sound
the same themes, often arguing that "fair use is the right to hire an
attorney" -- in other words, it's a narrow, niggling set of rights
reserved for a defendant in court, and it's entirely fact-specific.

On the other hand, you have people like NYU scholar Siva
Vaidhyanathan, who argues that the public has long enjoyed certain
protections under fair use and common law, and that as we move from a
text-based society to a visual culture, it's imperative for us to hold
onto these traditions of individuals borrowing from the culture at
large without fear of being sued for creating something substantially
new. 

If even the experts can't agree about copyright and fair use, how are
the rest of us supposed to?

Philosophically, I tend to favor Siva's approach here. The legal realm
of fair use expands as society internalizes the kinds of things we
like to do with new technologies and media.

Now, let's discuss the real-world applications of fair use in
cyberspace for a moment.

Ourmedia.org, for those who haven't heard of us, is a 20-week-old
nonprofit associated with the Internet Archive (archive.org) that lets
anybody, anywhere in the world, upload works of their own personal
media -- video, audio files, photos, text, etc. We'll store your works,
give you free bandwidth, and preserve them. For free. Forever.

Since we launched, 34,000 members have joined. For the vast majority,
fair use doesn't really come into play. People are shooting their own
video, recording their own podcasts, and so on.

But for hundreds of others, there's a big fat gray zone when it comes
to fair use. So we asked the renowned SF IP law firm Fenwick-West to
come up with some fair use guidelines for our members, and they did so
(the link is on every page on our site):

http://www.ourmedia.org/rules/fair-use

Out of 25,000 works published so far, we've had to remove about 50
because these members either appropriated others' works or stepped over
the fair use line into infringement. We hate making these calls, since
we're not lawyers, so we're pretty much leaving it up to our members
to decide where they think the line is drawn. 

Here are some examples of "remix" works:

video:

http://www.archive.org/download/SaraESchmidtthankful/sara.mov
(some short snippets of music)

http://www.archive.org/download/TinaParkthemiddle/tina.mov
(copyrighted music used)

In this video, the Internet Archive posted footage of the tsunami
without permission of the copyright holder because of its news value:

http://www.archive.org/download/tsunami_phuket/tsunami_phuket.wmv
(Windows Media player)

This Bush-Blair video satire is another example:
http://www.archive.org/download/ATMOBushBlairloveduet/Bush_Blair1.mpeg

Similarly, many of the podcasts we're coming across contain snippets
of copyrighted music. We encourage them to get a blanket license if
they do this on a regular basis. Here are two examples of musical
political satire, which is not directly protected by copyright law:

http://www.archive.org/download/rxDickIsaKiller/dick_is_a_killer.mp3

http://media.audiostreet.net/11D14A4AEAD246398E3FE9DEB979707F/Download/imagine
___walk_on_the_wild_side.mp3

Fascinating, no?

We're trying to help enable Remix Culture. We're aiming for a world
where these legal questions become moot, by creating a rich repository
of freely shareable music, sounds and video -- under Creative Commons
licenses -- that any creator can borrow from. Legally.

Because, as usual, the culture is far ahead of where the law is.
  

    

> the culture is far ahead of where the law is.

Hi. This is one area where I've been getting progressively more upset as
things continue to deteriorate. My latest gripe is with CDs that are
unplayable in some cases, where you can't find that unless you try and
then can't return the bloody CD because you've opened it. Things have
gotten way out of whack.

Ed Foster's Gripelog has related sections on this issue:
http://www.gripe2ed.com/scoop/section/UnFairUse as well as other items.
The issue of ability to use media also extends to egregiously ugly
EULA's (end user license agreement) for software and items.
http://www.gripe2ed.com/scoop/story/2004/10/12/02330/589 And
DRM issues such as the inability to play a movie trailer due to
buggy DRM: http://www.gripe2ed.com/scoop/section/Diary

<jet>'s #9 on how to determine fair use is simple to understand if
sometimes a bit hard to judge. I use it personally to try to determine
if what I want to do is OK.
  

    
jmcarlin, i hear you! The music industry is shooting itself in the
head, not just the foot -- if the music we legally purchase won't work
on our devices, many more of us will turn to the Darknet in
frustration. And yet, we see more announcements like the news that Sony
BMG is introducing burning restrictions:

http://p2pnet.net/story/5077

If it were just music and movies, that would be bad enough. But now
are computers are going to be subject to Hollywood's paranoid lock-down
approach as well under Microsoft's upcoming operating system, as
Princeton Prof. Ed Felten points out:

http://www.freedom-to-tinker.com/?p=882

Time to start some boycotts, I say.
  

    
Creative Commons and Ourmedia create alternatives for licensing and
distribution, but there seems to be a sense that the laws should change
- i.e. explicit acknowledgement and expansion of fair use so that
sampling is permitted, as well as a reconsideration of copyright
duration. Has anyone proposed model legislation for digital-era
copyright that would protect intellectual property interests as well as
the "freedom to tinker"?
  

    
Larry Lessig has proposed legislation that would require copyright
owners to file a $1 fee for renewing a copyright after a specific
period of time (50 years?). It's a perfectly reasonable solution that
would solve the problem of hundreds of thousands of orphaned works that
cannot be chronicled and archived (by the Internet Archive, among
others) and remixed and created anew, thanks to opposition by Big
Entertainment, which fights any attempts to enrich the public domain.

Harvard Prof. William Fischer has a new book out, "Promises to Keep,"
and has put the final chapter, proposing an alternative compensation
system for artists here (warning: PDF):

http://cyber.law.harvard.edu/people/tfisher/PTKChapter6.pdf

I don't agree with the blanket license approach, personally, but it's
an idea worth revisiting in a few years.

There have been other proposals to reform copyright law, such as Rep.
Rick Boucher's sensible proposal to reform the anticircumvention
provisions of the Digital Millennium Copyright Act, which would enable
us to tinker with the gadgets and software we've purchased. Again,
Congress has no appetite for alienating some of its biggest
contributors, and so this isn't going anywhere anytime soon, it
appears.
  

    
Maybe we should clarify for those who don't follow digital copyright
issues what the difference is between copyright and licensing, and say
more about what the implications of digital content - which isn't fixed
in media, and can be replicated on many devices in an era of digital
convergence. 
  

    

One other crazy part of the current 'broadcast' system is charging
royalties to web broadcasters but none to traditional radio. This has
given companies like http://www.live365.com a marketing edge since they
worked out a deal, but various content distribution facilities, radio,
satellite and web should be treated equally.

<jd>, do you have any sense that things will change for better or worse in
this arena?
  

    
Broadcasters (radio and TV styaionjs) pay royalties to ASCAP and BMI.
  

    
Great service you are providing JD.  It seems to me that the
'industry' is caught up in the transition from the horse and buggy days
to the automobile. They don't seem to get that they are in the
transportation business; i.e. the transportation of artistic media via
whatever is the current technology - these days files.  The sooner they
get that it is about file sharing, the sooner they will realize that
CD's and DVD's should be filed under "dead media" in the Mirrorshades
archive and the sooner they will take the Napster approach and start
developing ways for users to download the media content they desire.

That doesn't change the Darknet aspect of file sharing, but it would
alleviate the current nonsense about who owns what and how it is
delivered. Once I purchase a file from whatever source I should be
allowed to mix, remix or share it however I please. I'm going to anyway
so they might as well wake up and get a piece of the pie. 

Their method of whipping a dead horse and trying to continue to make
money through the various middlemen and methods of packaging are
pointless. The very fact that the Darknet exists, will not go away and
will grow exponentially would seem to make this point moot.
  

    
#16: jon, good point. copyright applies to every work on the Web
except those works donated to the public domain. if you've licensed
your work, it means you've conferred specific rights to another party
to republish your work. you could, say, allow other people to republish
and redistribute your work; rework and build upon it; use it for
commercial purposes (or not); or you can restrict the license to a
particular publisher: only ifilm.com gets to show off my work.

#17-18: I agree that the cost structure Congress imposed on Webcasting
is unfair -- and outrageous. From the book:


You would think it would be in the recording industry’s interests to
see Webcasting thrive as a legal, compelling alternative to file
sharing. But the RIAA hasn’t seen it that way. Hundreds of small and
independent Webcasters went dark in 2001–2003 when the recording
industry sought to impose exorbitant royalty fees. Under the DMCA,
Congress required Webcasters to pay fees to both songwriters and
performers, while radio stations have been exempt from paying royalties
to performers and their record labels since the 1970s because such
exposure gives artists promotional value. Lobbyists for the Recording
Industry Association of America argued that Internet radio offers no
promotional value to artists. Congress went along. Today, if KROC radio
plays a Beatles song, composers John and Paul get paid, but performers
George and Ringo do not. If a U.S. Webcaster plays a Beatles song,
John and Paul receive a composition fee plus all four Beatles get a
performance royalty.

To its credit, Congress later revisited the issue and lowered the
statutory fees for hobbyists, nonprofits, and college stations that
stream music. But many Webcasters remain unhappy about the outcome.
“Over time, as Internet radio gets bigger and goes head to head with
broadcast radio, I have an unfair cost structure relative to broadcast
radio,” one Webcaster told me.

Ann Gabriel, president of the Webcaster Alliance, agrees. “The laws
and subsequent rules have been designed with the express goal of
stifling the growth of the Webcasting industry. We believe this was
done to kill off smaller Webcasters who reached out to and promoted
independent artists not affiliated with RIAA member labels.” The RIAA
maintains that Webcasters must pay their fair share.
  

    
nukem777, I agree that the music industry (and to a lesser extent the
motion picture industry) needs to reinvent its business model as we
transition to the digital age. Their aim is to hang on to every dollar
they can, and if that means clinging to hard goods like the CD and DVD
(where the bulk of their income comes from today), they'll try to
extend that by several years. Today, we still can't find a lot of good
alternative or world music on iTunes, for example, and I have no doubt
that millions of people are turning to the Darknet or file-sharing
services to get their fix rather than buying a CD for $17 for one song.

There's an interesting debate now taking place in certain circles
about whether people should have the right to remix and recirculate
music after they've purchased it. Most artists would probably say, no,
you've purchased the right to listen to the song, not to remix or
redistribute it -- unless I've given my consent. At Creative Commons
and Ourmedia, we're trying to get more artists to give their
permission. 
  

    
Maybe this is too simple, but how about people being able to purchase
files of the artists whom have given you remix rights from your site so
that there is some tracking involved as to whether it is economically
viable to go to that model? You would not be selling them from your
site, just linking to the artist's designated sale site with a tag that
lets them and their corporate handlers know where the purchase came
from.

Everything is scalable these days and it's all about marketing
demographics for these corporate types, so provide them with some data
and let them run the numbers...they might be surprised. I think most of
us want to play fair, it's just that we know the game has changed and
the industry has not caught up to the field we are playing on.
  

    
Aren't the music and motion picture industry too invested in
competitive advantages that will simply disappear? It seems to me that
this is like trying to turn the blacksmith into an automechanic - he's
starting over and losing the advantage of his experience, tools, etc.
He's no longer competitive. I suspect the RIAA and MPAA see this all
too clearly. 
  

    
nukem777, I think we'll get there, but it'll take some time. Creative
Commons has something called ccMixter that lets people remix musicians'
works legally. We're working on a variation of that at Ourmedia. And a
darknet company has an app called Spin Xpress that has the capability
of letting people collaborate on a new or remixed work, tracking the
history of each change along the way.

Jon, it's hard to say. If the Grokster decision had gone the other
way, the music industry would be spiraling headlong into permanent
irrelevancy. But we've seen Congress and the courts step in time and
again to help prop up the incumbents of Big Entertainment. 

You're right, they do understand the forces arrayed against them,
which is why they're trying to define the debate on their terms (any
unauthorized use of copyrighted materials is "stealing" and "piracy")
and why they're out to coopt or control the upstarts in the tech sector
that pose the greatest risk of disrupting their business models. There
will be no tears shed in big media if TiVo goes under, even though
TiVo has bent over backward to accommodate Hollywood.
  

    
But long term, aren't they limited in what they can do, if artists and
other creators see the value of new models that remove the middle men
between them and their potential audience? (I'm trying to avoid the
word consumer.) To preserve their lock on distribution it seems that
they would have to put the Internet genie back in the bottle.