May 2006 Archives

Neutrality in the News

Here is a roundup of some of the more interesting and thoughtful recent articles, posts and audio bits concerning network neutrality policy:

Michael Grebb, Wired News: Neutral Net? Who Are You Kidding?: "Six months ago, few outside of internet policy wonk circles were aware of the issue. Now, the best-known brands on the net are flexing their lobbying muscles for and against it, and lawmakers have responded with a raft of competing bills. As the debate reaches fever pitch, it seems fair to ask: How neutral is the net right now?"

Unfortunately, even though neutrality is a critically important facilitator of free speech and democratic dialogue, it is still difficult to explain in succinct talking points. Bob Frankston finds an analogy that helps to make the "net neutrality" question somewhat more tangible and less theoretic: Sidewalks: Paying by the Stroll: "I've been immersed in so-called tele-communications issues for a long time but I haven't posted too much lately because I'm not satisfied with net neutrality and am trying to figure out how to explain that the problem is more fundamental (as in 'Telecom Phrase'). How come I have to plead for neutrality when we're talking about infrastructure that we should own?"

Ben Scott (Free Press), Mark Cooper (Consumer Federation of America) and Jeannine Kenney (Consumers Union): Why Consumers Demand Internet Freedom: Network Neutrality Fact vs. Fiction: "Network Neutrality protections have existed for the entire history of te Internet. opponents of Internet freedom pretend that Network Neutrality protections would mean new, onerous government regulations. But advocates of Network Neutrality are not promoting new regulations. We are preserving tried and tested consumer protections and network operating principles that have made the Internet the greatest engine of economic growth and democratic communication in modern memory."

At the WSJ, Mike McCurry (Telecom lobbyist) and Craig Newmark (Founder of Craigslist) debate net neutrality regulation: Should the Net Be Neutral?: "Newmark: Mike says 'let the current rules govern' and that's what we're trying to do, trying to stop the big guys from changing the rules via the Federal Communications Commission. We're trying to preserve the level playing field. It's just fairness. Americans want to play fair, work hard and get ahead. That's what net neutrality is about."

Adam Cohen, NY Times: Why the Democratic Ethic of the World Wide Web May Be About to End: "The World Wide Web is the most democratic mass medium there has ever been. Freedom of the press, as the saying goes, belongs only to those who own one. Radio and television are controlled by those rich enough to buy a broadcast license. But anyone with an Internet-connected computer can reach out to a potential audience of billions."

Susan Crawford: Comparative broadband ideas: "How do you increase competition in the U.S. for broadband access?  Right now, we have giants fighting with each other -- cable and telephone companies.  Small numbers of these companies control 80%-90% of the market for broadband access.  After the BellSouth merger, AT&T, Verizon, and Comcast alone will control 49% of the market"

Susan Crawford: The definition of net neutrality: "There are lots of people out there saying 'we need to treat all VoIP alike, all video alike, and all blogs alike.'' For them, that's network neutrality. That's not what I hope we'll end up meaning by net neutrality.' That would require a heavy-handed regulator enforcing a provider's determination of what packets are 'like' other packets.' I am not in favor of that approach. I have a different vision.' I hope, someday, we'll treat broadband access like the utility it is.' That would mean separating transport from other activities, and separating access from backbone and backhaul transport.' That doesn't require a great deal of discretion to repose in any particular actor."

David Isenberg: What's driving the next telecom law: "Until this decade, law has treated the telephone network as a public accommodation, meaning that non-discriminatory access to the network, known as network neutrality in the current policy debate, was assured. On the Internet, though, non-discriminatory access leads straight to the erosion of the telco/cableco business model by third parties that would not behave as 'rational competitors.' This is why telephone companies are fighting fiercely against non-discriminatory access."

John Reinan, Star Tribune: Access to the Internet: Is it a right or a privilege?: "Imagine if the Internet were like cable TV. You pay $40 a month to Time Warner or Comcast, and you get a menu of 80 websites to visit. Want to go to a site devoted to Japanese anime cartoons? Sorry, that's not on the menu. Looking for that crazy blog about the history of matchbook covers? No longer available -- or so slow to load it's not worth your while.

NPR All Things Considered: Internet Debate: Preserving User Parity: "Should the Internet be divided into fast and slow lanes? That's the question at the heart of the debate over 'network neutrality.' Broadband providers have clashed with Internet and software companies, who are concerned that giving some users preferential treatment for a price effectively shuts out competition."

On the Media: Information Toll Road: " couple of months back, we discussed the prospect that one day the Internet might be split into a fast lane and a slow lane. That's because the telephone and cable companies that supply us with broadband service believe they're getting a raw deal. They say that content providers ought to be willing to pay extra for the high-speed delivery that is now available to all, a state of affairs called "network neutrality." Well, that fateful day may fast be approaching. "

Public Radio Exchange: Four Voices from Freedom to Connect The hour consists of excerpts from four talks given at Freedom to Connect in Washington, D.C. on April 3 & 4, 2006: Congressman Rick Boucher (D-VA), Chris Sacca (Google), Former FCC Chairman Michael Powell, Former FCC Chairman Reed Hundt"

Senate Approves New F.C.C. Member

Reuters: Senate Approves New F.C.C. Member: "Mr. McDowell, 42, has been a lawyer for Comptel, a trade association that represents telephone and Internet companies that compete against bigger carriers like AT&T and Verizon Communications."

Podcasting Legal Guide

A useful Podcasting Legal Guidei: "The main legal issues that you will likely face that are unique to podcasters are related to copyright, publicity rights and trademark issues."

Broadband Here and There

The New York Times reports on the bundle of communications services offered by a cable television company in Japan: In Japan, a Provider of Cable Ups the Ante: "In addition to a basic television package, he gets a digital phone line and a broadband connection with a top speed of 30 megabits a second, about six times as fast as that offered by most American cable companies. He pays about $130 a month for the three services and some premium channels."

Here in NYC, Time Warner offers a bundle of basic cable, digital phone service and internet service for only $99/month. But that is only a 768 kbps internet service. For the same price as the Japanese plan discussed in the Times article-- $129.95/month-- Time Warner will provide internet access at "speeds of up to 5 Mbps"-- 6 times slower than the Japanese competitor. And on the high-speed internet access in NYC, uploads are limited to a paltry 384 kbps. Pity the poor podcaster or videoblogger who can upload her files at less than 10% of the advertised top speed of her connection.

And Japan is not alone in eclipsing the US. Public Knowledge's Art Brodsky saw a broadband ad in the London Underground:

The advertisement on the wall in the subway station was hard to believe — a broadband service with 24 meg download for about $45 per month. That was the good news. Unfortunately, the service isn’t available in the U.S. The ad was on the wall of tube stop in London and the company, Be, http://www.bethere.co.uk is British. Just to rub it in a little, it gets better. There is also a cheaper option, about $25 per month, which still gets you the 24 mbps download, but with a slower upload speed. This in a city in which a bottle of water will set you back about $2.25.

How will insulating broadband providers from competition allow the US to compete in the wired world?

The Hill: Finance firms may weigh in on net-neutrality battle: "The financial-services industry is considering coordinated opposition to the 'net neutrality' language in the House's video franchising bill, fearing a financial hit if lawmakers allow phone and cable companies to charge banks more for secure Web service."

Besides telecom companies, does anyone else benefit from a non-neutral internet?

Your Neutralness

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Earlier today, a producer from the public radio program Open Source called me to discuss net neutrality. Because they could get actual experts and more interesting speakers, they didn't need me (but it was nice that they got all the way down the list to think of me!)

Open Source: Net Neutrality, May 4, 2006.

After talking briefly and disjointedly about network neutrality, I think I clarified some points in my own mind.

Why not regulate? The case against neutrality regulation:

  1. Regulations may be burdensome-- and may serve to make internet access more expensive, discourage investment and keep the US part of the internet stuck in 2005 while the rest of the world develops.
  2. A discriminatory network allows certain services to have priority. When downloading a file, it doesn't really matter whether the bits arrive at the client in the proper order, so long as they eventually all arrive and end up in the correct order. When using VoIP or streaming a movie, it matters that the bits arrive in the correct order and in a timely fashion. Allowing ISPs to discriminate makes the internet feel faster without having to invest money in expensive bandwidth.
  3. By not regulating internet services, internet service providers are free to develop the most innovative services possible.
  4. A discriminatory internet is excellent for cable and telecom companies. Not requiring neutrality will allow telecom and cable companies to extract the full potential value from their networks. If you were running an ISP, which would you prefer-- all-you-can eat pricing or a system that charges premium prices for premium features?

Why is Net Neutrality Important? The case for neutrality:

  1. Neutrality advances the overall usefulness of the internet quicker. Because broadband internet service providers can compete only on bandwidth, the more bandwidth that is available the more advanced services can be created. Instead of deploying only high-revenue services, broadband providers will have to compete on bandwidth and reliability.
  2. A neutral internet promotes free speech. Publishing to a discriminatory internet could be more like deploying a new cable television network and require negotiating a carriage agreement with all major end-user internet service providers. A non-neutral internet looks more like the mobile phone system, which feels expensive.
  3. A neutral internet is excellent for everyone who sends data over the internet. In a discriminatory internet, publishers (which includes not just Yahoo, Google and Microsoft, but also your local newspaper, the neighborhood association, and state, federal and local governments) have to pay not only to connect to the internet and for bandwidth, but could also need to pay a connection fee (protection money) to be able to send data to each of the major local internet providers.
  4. A neutral internet promotes creativity and free speech. Instead of pigeon-holing services into particular tiers, it allows innovators to develop new services and ways of sharing information.
  5. A neutral internet is cheaper. A preferential, proprietary internet requires more expensive routers that move preferred packets into an HOV lane. As bandwidth gets cheaper and cheaper, it is probably cheaper and more cost effective for the individuals, small businesses and large companies who use the internet to pay for wider information superhighways than adding an HOV lane to the existing networks.
  6. Regulation may be necessary because the broadband internet services market is not a classically free market. Individuals generally have the option of choosing service from their local telephone company or local cable company. Where a market failure exists, regulation prevents entrenched interests from exerting undue market power. See e.g. the entire body of antitrust law.
  7. A non-neutral internet would be more like Minitel than like the internet we know and love today.

Like railroads and shipping lines, the analog telephone system is a common carrier network. One is able to reasonably use the network to call any other person. The common carrier may not deny transmitting a call between two willing participants because of the content of the speech transmitted. The telephone company can not discriminate against a customer who uses the common carrier network to discuss how they dislike the president or the phone company. The telephone company can not discriminate against a customer who uses the network to use a modem to dial a third-party internet service provider or BBS. In a neutral internet, internet service providers must act like common carriers. A non-neutral internet might allow internet providers to prevent users from using encrypted connections to corporate networks or third party VoIP services.

Thoughts on Fair Use

Because of technology, copyright today affects many more people than ever before. Copyright is something that only people with access to copying and distribution equipment have to worry about. but even a $29 cell phone can be used to make and distribute copies worldwide. A $1000 computer hooked up to the internet is an amazingly efficient and powerful copying and distribution machine with worldwide reach. Copyright law has gone from being something esoteric that affects publishers and the mass media to being something that affects the average citizen on a daily basis. It affects the way we not only create culture but engage in normal uses of cultural items and personal records.

Fair use is not a business model. It is a limited affirmative defense to a charge of copyright infringement. As such, publishers seek to avoid having to rely on fair use. The result is that fair use in practice exists far within the bounds of the law of fair use. It is much cheaper to obtain a license than to go to trial to defend a copyright infringement lawsuit.

As a result of this calculus, there is a paucity of fair use decisions (especially appellate decisions). Because the actual structure of fair use is entirely a judge-made common law, the fewer decisions available, the less case law support exists for advocating particular interpretations of fair use. What in-house counsel wants to make their fair use case into an expensive test case?

This creates a feedback loop, where the legal departments of publishers are exceptionally cautious about matters of fair use-- with good reason-- and will require creators to obtain licenses before publishing any work that incorporates quotes or snippets of other works.

Among publishers, there exists a permission-based culture where even clear de minimis or fair uses are licensed as a matter of basic risk aversion and sound business practice. This is especially easy because publishers do not bear the cost of obtaining licenses. In the record industry, sample clearances are a recoupable expense and are ultimately borne by the artist, not the label. In publishing, authors bear the cost of obtaining clearances.

In addition, the publisher gets more revenue for each of these granted licenses. While not necessarily a tremendous amount of revenue, it might be enough to have a measurable impact on revenues.

A fascinating empirical study would look at the cost of the permission-based culture. It would calculate the cost of licenses obtained by publishing houses, record labels and/or film studios, compare it against the revenues obtained from granting similar licenses and then examine which of those uses might be considered a fair or de minimis use. (If anyone wants to fund this study, drop me a line!)

The Stanford Copyright & Fair Use Center has an excellent brief summary of fair use cases. One theme that recurred over the course of the conference was the need to fully litigate more fair use cases. Unfortunately, there is little business interest to litigate these cases. Since it is a matter of public interest and First Amendment free speech interests, but not in anyone's business interests, this is an area where even more public interest non-profit legal services organization would serve the public interest. The Stanford Fair Use Project (which is seeking an executive director) and the Brennan Center Free Expression Policy Project are examples of this kind of public interest organization. But with limited resources, they can only litigate a small number of important test cases each year.

A legal services organization could offer creators and copyright owners low-cost, heavily subsidized counsel in litigating a greater volume of fair use cases…

Here are rough notes from the Comedies of Fair Use at NYU panel "What Is To Be Done?" (4/30) with Judge Kozinski, Pat Aufderhide, Susan Bielstein, Carrie McLaren, Lawrence Weschler (moderator)

Pat Aufderhide
Although there is a lot of confusion, there are a lot of healthy practices.

Carrie McLaren
Solutions sound scary because one solution has to be all-encompassing. Possible to get things done on a smaller scale, both within the system and outside the system.

Negative publicity is an incredibly powerful tool.

Receiving a C&D can be used as PR.

Significant power of distribution networks


Susan Bielstein
-Book includes the cost of each clearance in caption, this may end up that license contracts include non-disclosure as to price.
-We need a central repository of copyright misuse [again, link to mazzone]
-We need education from attorneys on publishing houses rights& permissions staff [here's another non-profit type idea]

we will make a greater commons when we assert the commons. We will have more fair use and free use when we hold these truths to be self-evidence. This has more to do with changing norms than changing the law.

Kozinski
There are not enough fair use cases. Kozinski can probably name 3/4 off the top of his head.
There are lots of cases that get litigated in the first Amendment area, e.g. Nazis in Skokie.
Too often, these cases arise in a business situation, and you need to make a business decision.
Authors/publishers need to think of themselves more as a public trust and there's something to be said for not backing down.
sometimes you litigate not because it's the right business thing to do, but it's the right thing to do.
these are not just artistic issues, there is a serious undertone of political discourse. Almost all art has a political undertone and everything having to do with expression has a serious political undertone.
What do you remember from 1984-- where's the beef-- which was based on a tm.
Trademarks are a more important area in terms of political discourse than (c) for two reasons
1. While on rare occasions books may be widely read commercials get pushed at us with a high-powered hose. [they're in the public consciousness]
Example: The word Olympics is owned by the USOC. The USOC gave permission to the Special Olympics, dog Olympics, but not the gay olympics.
-If you take words out of the political discourse, you hurt the discourse.
-Mattel v. MCA -- another attempt to pull a word out of the discourse for the purpose of avoiding a message that has definite political undertone

Weschler: To what extent do people who keep sending C&D letters but don't sue, does that set up a process where those letters can be safely ignored?

Kozinski: There are many reasons why rightsholders fail to sue. They are very well aware of the publicity risks of suing.

Audience member: Does undue diligence - failure to protect copyrights - have legal standing?

Kozinski: getting an injunction is an equitable remedy. With equity, laches and estoppel come into play.

Bielstein: content providers often don't want to go to court because they don't want more fair use decisions. They don't want a lot of case law that takes the law towards the defendant.

FEPP is offering pro bono services for recipients of C&D

Marjorie heinz from FEPP: DMCA takedown notices are more effective than C&D letters.
Best practices policies attempt to reduce fair use to numbers. It's not the outer boundary-- it's relatively conservative.

Best practices for documentary filmmakers is what do (c) owners and practioners deblieve to be fair.

Kozinski:
Common law system flexibility is good for free speech. A system that looks at set rules-- number of words-- [technical] must be avoided. Chaos has its own benefits, chaos has its own flexibility and chaos allows you to develop quickly in a world that is changing.

Some changes to consider:
Do away with injunctions in most cases where the issue is transformative use. Any kind of use that adds value, changes value, essentially becomes a derivative work, injunctions should be highly disfavored. Exempt entirely anything non-commercial in nature from injunction. Try to avoid making kids feel guilty about sampling, so long as they are not making money on it.

Examples of problem of unavailability/out of print problem. Would be glad to buy it and pay for it if it was available. But here, infringement keeps cultural property in circulation.

Those who assert rights needs to be more assertive. lawyers represent pro bono the cases of those who can't afford lawyers. This is another area of civil liberties and the civil liberties lawyers ought to understand it and it affects us more than whether the Nazis can march in the streets of Skokie. This affects most people's rights and ought to be viewed more as a civil liberties issue.

We're talking about expression, the very stuff which the First Amendment is made.

Neutral Planet

Tim Wu, Slate: Why You Should Care About Network Neutrality: "Welcome to the fight over 'network neutrality,' Washington's current obsession. The debate centers on whether it is more "neutral" to let consumers reach all Internet content equally or to let providers discriminate if they think they'll make more money that way."

At the Legal Affairs Debate Club, Wu debates Christopher S. Yoo about network neutrality: Keeping The Internet Neutral?: "Whether you browse Wal-Mart's website or that of your local hardware store, your Internet Service Provider gives your request equal treatment—called 'network neutrality.' Networks may soon become less neutral, however, because of proposed regulatory changes and corporate mergers among ISPs which could reduce consumer choice. Neutrality has been seen as beneficial for innovation and for democracy, since a 'tilted' Internet may shut out independent political voices as well as small entrepreneurs. But neutrality has potential drawbacks. It may discourage innovative new services that require investment by an ISP, for example, and reduce the Internet's stability and security. Should ISPs be allowed to play favorites among websites and offer non-neutral Internet connections to their subscribers?"

At the Huffington Post, Mike McCurry (former White House Press Secretary and currrently a lobbyist against regulation) writes: Hostile Commentary and Net Neutrality: "The Internet is not a free public good. It is a bunch of wires and switches and connections and pipes and it is creaky. You all worship at Vince Cerf who has a clear financial interest in the outcome of this debate but you immediately castigate all of us who disagree and impune our motives. I get paid a reasonable but small sum to argue what I believe. How many of the net neuts out there are honest about the financial resources and special interests behind your side of the argument? Do you really believe this is good v. evil or just an honest disagreement about what will make the 'net flourish and prosper? What do you make of David Farber's recent caution about the unintended consequences of regulating the Internet?"

Tim Berners-Lee, the inventor of the WWW discusses the benefits of Neutrality of the Net: "When, seventeen years ago, I designed the Web, I did not have to ask anyone's permission. The new application rolled out over the existing Internet without modifying it. I tried then, and many people still work very hard still, to make the Web technology, in turn, a universal, neutral, platform. It must not discriminate against particular hardware, software, underlying network, language, culture, disability, or against particular types of data."

The Net Neutrality Coalition is another group supporting neutrality-- "a broad coalition of consumers, grassroots groups and businesses working together"-- and funded by Amazon, eBay, Google, IAC, Microsoft, Yahoo!

And here is David Isenberg discussing Network Neutrality at Harvard: Network Neutrality Reality

Susan Bielstein (U of Chicago Press):
As a pubsliher/editor she has come to develop a somewhat inverted view of fair use

Authors trying to insinuate themselves into the world of high crime-- little problems writ large-- once authors come to understand that fair use is not an inalienable right, but a legal defense. The doctrine ultimately gets worked out in a court of law, not the editor's office.

1. The cost of doing battle is hardly worth it for scholarly editors/authors-- the amount of sales/$$ is peanuts. It's never worth it for the used copyright holders to go to court. What the editors do get are lots of cease & desist letters.

Publishers want to avoid legal battles if at all possible-- even silly ones that they'd easily win.

2. With the rampant commidifcation of culture, it is now assumed that something that is anything must be worth something. Everything is IP. So, the members of the Fourth and a half estate have become incredibly jumpy. The reason they are so jumpy is that (c) claimants come after publishers, not authors. So publishers are complicit in stretching a system of legal interests into a system of legal overreach.

3. A system of balance is disappearing-- it doesn't make for good comedy or news. But there's a need to balance the rights of property owners and the rights of users.

Don't expect publishers to take the lead. The authors need to-- come up with policies to support fair use and defend that position. Then scholars may have their day in court-- they'd probably win.

Geoff Dyer:
Kind of hoped that Hemmingway estate would come after him for "sampling" from Hemmingway, e.g:
"it was raining hard outside"
"He took a big gulp of coffee."
Are they identifiably Hemmingway? [Beyond de minimis and protectable?]

Authors have to bear the cost of clearances. (in abook of 120 images, attempted to do a fixed rate at $100/image.) But that didn't work, so there would be a need to negotiate with 120 different institutions/pphotographers. Some were very helpful. Some people, their demands were so excessive.

The last panel discussed the difference between academic and commercial use. As someone published by a commercial, for-profit company, but whose books have never made publishers any money, but still charged the higher (for-profit) rates.

Suppressing the desire to whine about the process. Except for his experience with the Diane Arbus estate. The estate asked to see what he wrote. Responded denying permission because of "factual errors"-- or interpretations that the setate simply didn't like.

Allan Adler:
The (c) act uses research, scholarly and educational uses as different uses. So, individuals are forced to figure out what the difference is between those uses.

When we talk about not-for-profit entities, can we really include places like NYU that charges undergrads $40k for tuition? We need to realize that there are for-profit entities that can engage in not-for-profit activities and not-for-profit entities that engage in for profit activities.

There are no per se fair uses, but the courts and Congress require there is a situational application for the 4 §107 fair use factors. Aren't there any rules of thumb, a bright-line way of determining what is fair use? Nope. There are likelihoods, but no certainties.

Harper & Row v. Nation Enters., 471 U.S. 539 (1985)-- the most newsworthy aspects of the work and the commercial value already realized in serliazation rights.

Think of it in terms of the Golden Rule-- ask yourself as your are about to make a fair use, would you feel if that use should be compensated are require permission. If people are trying to act reasonably, that's not such a bad way of thinking of it.

What about that situation where you think you need permission, but don't know how to go about finding it. You have a reason to believe the work may still be under copyright, but it might not have been renewed. You may not know if those people did the renewal or if there was a reversion of rights. It's not the works that have been orphaned, but the uses of those works that have been orphans.

Earlier this year, the Copyright Office released a report on the orphan works problem.

Publishers sits at the table not just as owners of copyrighted works, but as users of copyrighted works.

Problem of embedded works-- attempting to license an electronic version of a chapter of a textbook that includes third-party photos/charts that are licensed only for the print version. So, how does a school get these rights if the publisher can't grant the rights?

Role of Fair Use norms. See Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990). If you recast it, then that use can be considered transformative. If it is a mere repackaging or duplication, that simply supercedes the original work.

Also think about the relationship between contract and copyright. Contracts are a set of rules that only apply to the parties who agree to have their actions bound by the contract. one can easily contract away one's fair use rights. in a digital context, a license often goes up against the black latter law of copyright.

James Boyle:
"I am the person who stands between you and lunch.… Let me lower your expectations before I even begin. "

Law here is being pressed into service to deal with a set of concerns for artists which have little to do with the law. Almost all who spoke talked about law as anything other than a second-best situation. (c) law is based on a utilitarian view of production of works and is hostile to the moral rights of authors and creators.

Law is being used to address a series of deep cultural divides that it may be unable to overcome, or even the ability to state these issues. Fair use isn't going to solve those issues for you, neither will copyright law as a whole.

Tradition of copyright law is very different from the tradition in the French tradition (droit de auteur). There are many countries on the WWW.

If the law could reach decisions quickly and costlessly, it would be very different. Private parties are really setting the bounds of the debate and these parties may not actually be the parties involved. In the film world-- it's the gatekeepers who stand between the filmmaker and distribution who just clear everything and won't let the filmmaker claim fair use. [The actual level of fair use in action is less than the bounds of the law.] For example-- Boyle was thwarted from photocopying his own article for his class by the BU copy room for lack of a written license.

One of the most important factors: is there a market for the use? An assertion of control over no matter how tiny-- can create a market for licensing a small fragment. The difficult thing is, the most prudent thing to do is say that it is fair use. Feedback loop of creating a market for everything. That spiral is largely outside the control of courts and Congress.

You might imagine that copyright law has no purpose other than full employment for lawyers, but it does have a purpose. Copyright law is being given a bad name by its ridiculous hypertrophy. Copyright law has morphed in all kinds of ways that are stated in the copyright Clause or the intent. Now fair use, which was meant to be a help on certain problems, but now fair use is stuck trying to step in as a check for overreaching (c) owners.

The ideas within fair use are fundamentally sound. The way the law exists as a philosophy is very good, but the way that Congress and users are extending it. We need to reclaim copyright law-- to take it away from something that it used to be (a contract that affected industry and stakeholders-- drafted by the reps of the various industries.) It's not a system that works, either on the books or in practice. Today, copyright law affects more people at more times. Previously, you needed access to a printing press to set off copyright. Today we make copies all the time as part of our daily, everyday work. so more people than just the major stakeholders are affected, and so agreements between the industries is not enough.

Sometimes where we have situations where the First Amendment comes into conflict with Copyright. For example, a case where Mein Kampf was published in the US in an abridged English translation that omitted some of the worst passages. Senator Cranston published a translation of the entire German work-- it was the whole thing, and there was a strong interest showing that it was fair use.

We've put a lot of these issues in the context of freedom of expression. Most other countries don't have freedom of expression.

Lawrence Lessig:
What method might we adopt for resolving what we all see as a real problem?
One way might be to look at the subjective feelings at the people involved. That way just can't make sense of the way the system works now. sometimes we're really attentive to the subjective perspectives, and sometimes we aren't.

We should think about what the consequences for creativity of a particular regime. The Woods case radically changed the way that film gets made. Lawyers now create massive books of all references in the film to get E&O insurance. If you're George Lucas, so what? But if you're a documentary filmmaker or someone attempting to do cheap distribution, they can't afford to do all these clearances and can't distribute without E&O insurance.

We need to think about what the systemic consequences of a particular system of protecting rights.

[Comedies of Fair Use] Art

I didn't take notes on the presentations by Joy Garnett and Susan Mieselas. Laura Quilter posted an account of their dispute and some of the implications: comedies & tragedies of fair use: "'JoyWar' began when Joy Garnett appropriated a photograph she found on the Internet, and repainted it. Shortly after exhibiting it, she got a cease-and-desist letter from the photographer, Susan Meiselas. Joy’s art rapidly became a cause celebre among Internet artists and activists, who reposted Joy’s art and remixed it with many new works."

Here are my rough notes from the rest of the panel:
Lebeus Woods
-Woods v. Universal City Studios, 920 F. Supp. 62
-Woods was Unhappy with appropriation of image used in 12 monkeys, because it was commercial for the purpose of making money and involved Bruce Willis.
-Sought (and obtained) a preliminary injunction.

Art Spiegelman
-Short of pure communism, there's no answer to this debate. That's something we can discuss at the next conference, otherwise IP is completely divorced from the laws of real property.
-Mad magazine led the development of the right to parody
-The first thing learned after loving the (c) was to avoid lawyers at all costs.
-Again, the length of the lawsuit takes forever.
-"I figured as a hobby, I'd get involved in the legal system"
-Eventually needed to switch over to a much less expensive lawyer who got things done
-On both sides of this all the time.
Recently, he completed a cover for the forthcoming 2006 edition of Dave Eggers' Best American Nonrequired Reading. The forward is by Matt Groening. The bottom of the cover art includes a squiggly yellow graphic element. [Spiegelman showed a slide of the cover art, but that is as yet unavailable on the web.] Everyone loved it, except for the publisher, who wanted to remove the image of Bart Simpson's head. Spiegelman responded: "That's not Bart Simpson, that's a graph of US prestige since WWII."

Carrie McLaren
Displayed a number of exmaples from the illegal art exhibit, including
-Minor Threat / Nike Major Threat side by side
-Diana Thoneycroft "Mickey, Goofy, Barney"
-Kieron Dwyer "Lowest Common Demoninator" Comics (sued by Starbucks and settled)
-Tom Forsythe Food Chain Barbie (Sued by Mattel, the artist won and recovered attorney fees)
-The law isn't a great tool for deciding what is or is not derivative art.
-Don't see a lot of companies going after fine artists, but going after mediums that are reproducable.

Joel Wachs (Andy Warhol Foundation)
-As a foundation that represents an artist who freely borrowed from culture and who was also a savvy businessman himself ("The best art is being good in business"), agrees with most everything said this morning. It's more about values, in accordance with the values of Warhol. Non-commercial stuff is cool, but go after commercial uses.
-Warhol left his entire estate to a foundation, which has created a museum in pittsburgh and engaged in his mission to support the visual art.
-Sale of art and licensing name/images to go into an endowmnet, hose earning are used to support the visual arts. (Next year, plans to give away $10m in grants)
-Artist and scholar friendly while remaining very business savvy. Respect the creative process (reference Warhol in the making of their art without challenge and without charge and to let scholars use Warhol material without ever questioning the use.) On the other hand, when someone wants to use copyrights for commercial gain and competes with the foundation's own comemrcial licensing program, then the foundation is aggressive in going after those.
-Not inconsistent because it is about values.
-Best example is the use of Campbell soup. The Warhol foundation recently made a lucrative licensing deal to use Warhol's images of Campbell's soup to promote Campbell's soup.

Panel discussion/audience Q&A
Mieselas: Decontextualizing the image was the key provocative aspect. It's taking the historical moment out of context. It grates because it had that particular history and makes it difficult to deal with.

Wechsler: But what makes it an outrage?

Miselas: My question was why is this about riot? Problem is about the recontextualization of the concept into something it wasn't about.

Spiegelman: Photography is taking things out of the world. What about the fact that the guy was throwing a molotov cocktail in a Pepsi bottle?

Miselas: To say that photographers simply scoop, it's deeply insulting. That is at the core of where do things belong and who do they belong to. You stressed how long it takes you to draw things. How long do you think it took me to be there in Nicaragua to get that image?

Spiegelman: All images requiring taking things out of an understanding of the world.

Title of this Magritte painting is "Forbidden to reproducing."
I'm not reproducing the painting, I'm reproducing a preproduction of the foundation. If you were representing the René Magritte foundation, would you allow this?

Wachs: Since this is an academic conference, it's scholarly, we'd allow it. If it was a t-shirt, we'd go after you. For books, it depends based on commercial/non-commercial and the size of the print run. If you used it on the cover, you'd probably be charged for it.

Audience question: It seems to be the right to fair use (as an artist) stops when you piss off your fellow artists. Is there any other line we're going to find here. If the artist doesn't object, you've got fair use. What if an artist makes an image that incorporates Warhol art, but then starts selling prints and mugs,

Wachs; We'd never tell the artist not to create, but would go after them once they commercialize the work (start selling prints, shirts and mugs.) Don't want to base it on content, but only on commercialism.

Woods: it's one thing for an another artist to use it in their drawings, but when its a Hollywood music studio, using it only to make money, then I have a problem with it.

Audience question: Who decides?

Woods: It's a human judgment issue-- it's up to the judgment of the author. If Joy and I had talked about this beforehand, we wouldn't be here now talking about this. If you don't think that any conversation is necessary

Joy: while authors deserve respect, especially from other authors, there is a limit on how much control the author has can exercise over the way that work is interpreted, especially where that work is reportative-- bringing information out from a war zone and information that would otherwise not be experienced, they are still just one author framing an event. To me, it seems like an awful lot of control. that event was brought out to the public because it belongs to our common cultural experience and its important to quote it to think about it. Part of my project is provocative-- to say that you can't control your image in the world today. The photographer's intentions are gone-- Susan's struggle against that is amazing and laudatory. Once the image is out there, you can't control who uses it or how. It's wrong to try to impose total control. I was not interested in collaborating. Would I have had to ask permission from all of those authors?

Woods: That's why we have law in this country. in my case, I chose to object to a particular use for my work. I wouldn't choose to object to all uses. I put my work out there. I chose a line and it crossed that line and the law gave me the opportunity to object.

Kozinski:
We see authors in court all the time. It's better when they're dead. Long dead.
We had a case a few years ago involving Rick Dees involving a Johnny Mathis tune [sings a bit]

{moderator: "look out Ashcroft!"}

Imagine Cervantes was alive today and saw Man of La mancha and have no doubt that if Cervantes was invited to see Robert Goulet, he would have had the same reaction -- it's an abomination.
It's not that both sides are right. one side is right and one side is wrong. I think that if you put something out there, it's no longer yours. You put it out there and it becomes part of our reality. If someone makes money off that, you should get a piece of the action.
No matter how offended Lebeus was about Bruce Willis sitting in the chair, he didn't stop the movie-- he grabbed the money. The artists can be bought off.

Echs: The priblems is that he wasn't asked beforehand. If there is no permisison, then it wouldn't be made, then it wouldn't be a problem.