Cynthia Dyer-Bennet (cdb) Wed 10 Aug 05 10:06
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!
Jon Lebkowsky (jonl) Wed 10 Aug 05 14:21
Thanks, Cynthia! Starting with the obvious first question: what is the Darknet?
JD Lasica (jd) Thu 11 Aug 05 17:37
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. :~)
Jon Lebkowsky (jonl) Thu 11 Aug 05 18:51
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?
I'm not authorized to say this, but ... (jd) Thu 11 Aug 05 23:57
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?
JD Lasica (jd) Fri 12 Aug 05 00:06
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.
Jon Lebkowsky (jonl) Fri 12 Aug 05 06:56
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).
Cynthia Dyer-Bennet (cdb) Fri 12 Aug 05 12:47
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Daniel (dfowlkes) Fri 12 Aug 05 13:15
<scribbled by dfowlkes Tue 3 Jul 12 10:14>
it was already on fire when I got here! (jet) Fri 12 Aug 05 13:29
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.
Jon Lebkowsky (jonl) Fri 12 Aug 05 13:38
JD Lasica (jd) Fri 12 Aug 05 13:42
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.
Public persona (jmcarlin) Fri 12 Aug 05 13:56
> 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.
JD Lasica (jd) Fri 12 Aug 05 14:25
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.
Jon Lebkowsky (jonl) Fri 12 Aug 05 16:49
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"?
JD Lasica (jd) Fri 12 Aug 05 17:23
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.
Jon Lebkowsky (jonl) Fri 12 Aug 05 19:24
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.
Public persona (jmcarlin) Fri 12 Aug 05 20:43
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?
Dennis Wilen (the-voidmstr) Fri 12 Aug 05 22:47
Broadcasters (radio and TV styaionjs) pay royalties to ASCAP and BMI.
It's a new sun to me (nukem777) Sat 13 Aug 05 09:51
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.
JD Lasica (jd) Sat 13 Aug 05 11:30
#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 industrys interests to see Webcasting thrive as a legal, compelling alternative to file sharing. But the RIAA hasnt seen it that way. Hundreds of small and independent Webcasters went dark in 20012003 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.
JD Lasica (jd) Sat 13 Aug 05 11:39
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.
It's a new sun to me (nukem777) Sat 13 Aug 05 13:33
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.
Jon Lebkowsky (jonl) Sat 13 Aug 05 16:50
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.
JD Lasica (jd) Sat 13 Aug 05 18:26
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.
Jon Lebkowsky (jonl) Sat 13 Aug 05 20:01
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.
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