Posts Tagged ‘intellectual property law’

Here we have a solution to all pains with illegal downloading:

Interesting post appeared yesterday on At last … the 1709 Copyright Blog, which is not that unusual since at least from my point of view it is essentially an interesting blog; however, the post itself at first sight might seem untypical for that blog.

There, discussing Hamburg Declaration’ (pdf), which according to the author is ‘both reactionary and progressive’ we read:

‘A big part of it is ACAP (the Automated Content Access Protocol) though that’s only half the story, the progressive half.’

So far so good, but further we learn about what author identify as “reactionary” part of European Publishers Council’s plans presented to EU Commissioner for Information Society and Media, Viviane Reding.

Angela Mills Wade, Executive Director of the European Publishers Council, told me they are not looking for new legislation. What they want to do is counter ‘a very loud voice out there that says that there should be no laws for the internet, that is entirely anti-copyright and that thinks that copyright will destroy the ethos of the net’.

And this is the point, which I must admit I fail to understand. For, it seems to me that the author expresses views, which are somewhat untypical for At last … the 1709 Copyright Blog. What I mean by this is that both terms, “reactionary” and “progressive” indicate some particular value judgment placed on proposals discussed in the article and are not mere (neutral) statements of move (progress) in certain (potential) direction.

Nevertheless, a closer look at author’s assertions as to what is “progressive” and what “reactionary” seems to show that none of the statements should be considered in terms of “approval” or “disapproval” and that we should regard this particular use of both words as rather unfortunate accident.

Shouldn’t we?

For those interested, here is the Hamburg Declaration’

According to an article published on Monday 27th July by Ars Technica:

Copyright is a deeply entrenched part of the legal system and any changes will have far-reaching implications. The challenges posed to copyleft by copyright reform efforts demonstrates the complexity of the issue and reflects the difficulty that reform advocates will face in devising a reasonable balance between the rights of content creators and consumers.

Well, Amen to that. I would not be surprised if after few years of debating issues concerning IP, advocates of the reform would invent a system somewhat similar to the current one.

Which brings to mind sensible and well-balanced opinion of Jeremy Phillips expressed in his editorial ‘It’s my party and I’ll cry if I want to’, published in Journal of Intellectual Property Law & Practice, where he stresses:

If we do not support the Pirate Party’s aims, we must engage it in debate and oust it from the moral high-ground which it currently seeks to occupy. We must explain why we need to restrict access to, and control the use of, digitally recorded works. We must prove that software patenting, within the existing limits or beyond them, are justified. If we cannot produce a better and more persuasive case, we deserve to lose the argument.

(Phillips, J., ‘It’s my party and I’ll cry if I want to’, Journal of Intellectual Property Law & Practice, 2009, Vol. 4, No. 7, p. 451)

The editorial is available here, while Pirate Party’s Declaration of Principles could be obtained here.

Finally, let’s hope that Ars Technica reported nothing else but beginning of such a debate.

This is what you would call a “bold apology“:

Jeffrey P. Bezos says:

This is an apology for the way we previously handled illegally sold copies of 1984 and other novels on Kindle. Our “solution” to the problem was stupid, thoughtless, and painfully out of line with our principles. It is wholly self-inflicted, and we deserve the criticism we’ve received. We will use the scar tissue from this painful mistake to help make better decisions going forward, ones that match our mission.

With deep apology to our customers,

Jeff Bezos
Founder & CEO
Amazon.com

I wonder how it’s going to work out.

First of all it is hard not to appreciate that the rights holders are the victims in current circumstances. Whether they are victims of a large-scale “digital shoplifting” (‘contentlifting’) or rather some evolutionary transformation, which seems to be leading to their demise, is an interesting, but only to a certain degree relevant matter.

To put it simply, the important point is that throughout the last century various individuals and legal entities invested their capital in order to acquire certain rights and subsequently built their business models [sic!] based on these rights within particular legal framework. Due to the technological change these rights do not seem to be enforceable anymore in any reasonable manner and infringement of these rights have become easy and extremely popular. What’s more, it is often claimed that the legal framework which gives legitimacy to these rights is largely incompatible with current situation due to the same technological progress and should be either significantly modified or revoked all together.

Would that mean that we should deprive right holders of their legitimately obtained assets? or should we legitimise conduct which limits their abilities to benefit from these assets? Isn’t there a difference between allowing some out-of-date business to go bust and allowing for seizure of assets belonging to such business.

The situation is further complicated by the size and power of these entities and effectively the pressure they can apply on policymakers around the world.

It is widely recognized that the rights holders must recognize their position in current digital environment and adjust (or rather replace) their business models, which are still tied to analog distribution of their content. However, having said that one might think that it is a little bit like telling a butcher that he should hang on to his trade but start giving away his meat for free. Obviously, in order to finance the necessary purchase of animals, the butcher would have to start growing vegetables and sell them together with the free meat. No one would probably be surprised that in such circumstances the butcher might prefer to abandon butchering and become a greengrocer.

Considering that we are, to large extent, a carnivorous society one might start to feel uneasy about letting the butcher to quit butchering. In this situation it is down to the policymakers to create such a legal environment, which could provide incentives for the butcher to keep his post, and educate the consumers as to the importance of vegetables in their predominantly meaty diet.

However, what we are currently observing in Europe and particularly in Britain, might seem as an attempt to connect the butcher with a producer of carrier bags. Merger of these two businesses could mean that customer would have to pay somehow inflated price for the carrier bag that comes together with the meat. Having in mind that carrier bags could be used in various ways and not only for carrying meat, it might seem that the consumers are likely to lose should these attempts prove to be successful.

To conclude, instead of making scary faces and dreadful noises, pirates (who, as we all know, tend to use plenty of carrier bags) might start to think seriously about how to convince the butcher that he might be better off by growing vegetables for which they would be happy to pay.

It took me a long time to learn that I am a slow learner, but finally I got it.
It has been almost a decade since some smart people, after watching NASDAQ hit the floor, quickly came to a conclusion that businesses, investors and policymakers might need to reassess their conception of Internet and any future e-commerce. Soon afterwards Napster went off-line and KaZaA kicked in, announcing to the entertainment industry that their analog business models are also redundant and would have to be replaced by completely new ones.
Subsequently ideas like web 2.0, long tail, and most recent freeconomics, entered the mainstream carrying with them overarching notion of new business model. Presently, New Business Model (NBM) is everywhere. It creates buzz greater than snorting cocaine rock stars and starving to death children in Somalia. Everyone seems to have something to say about it; President Obama talks about it; and Gordon Brown talks about it; the Pope and the Queen talk about it; Michel Jackson was elaborating on this subject just before he died… or at least it’s not impossible. But recently even my grandmother used that phrase, which scared the shit out of me.
Nevertheless, despite all this publicity, I am still unable to grasp the idea. On the other hand, from time to time it seems to me that I know as much as most of the people:
“What is the new business model?” – “Well, … it’s the new business model.”
Somehow, my simple brain fails to follow such a line of reasoning, but maybe it’s just me being ignorant and mean.

In my view there are few things, which make the idea of new business model for content industry quite problematic. Essentially these problems revolve around the fact that content industry is highly consolidated, large and entirely built around its control over distribution channels of their intangible products. Let’s consider in greater detail some of the necessary features of any transition to potential new business model in this context:

1.    Assuming that the transition is intended to change the way the industry generates profits and taking into account the scope of industry’s activities, it is safe to consider that it would be a large enterprise. As such it would most likely require substantial funding and in the end it could relatively diminish current status of industry’s assets.
2.    To large extent creative industry is composed of multinational corporations, which operate under certain regulations and are accountable to their shareholders. Accordingly, industry’s primary objective is to generate profits and this objective determines any potential course of action.
3.    On the other hand, digital technologies with their low costs of production and distribution combined with high levels of participation on the Internet create highly volatile environment, which is unparalleled in fostering creativity and innovation but also disallows any constructive planning. In short, industry must appreciate that a bunch of students could make any “new business model” inefficient and out of date before it is even fully in operation.
4.    Despite grim outlooks it is rather certain that the analog creative industry together with its “obsolete business model” is not going to fade away anytime soon. Even though its abilities to control distribution channels of their products are largely diminished which have negative impact on relative value of their rights, the industry still generates large profits. Furthermore, industry’s size and importance gives it substantial bargaining power, which could be utilized to the industry’s advantage.
5.    Finally, considering the above, it could be difficult to find necessary level of support among investors for the idea of major overhaul of established strategies; at the same time investors might be very keen to accept the “new business model” as a supplementary strategy and in the meantime continue to do the business as usual but being ready to grab any potential opportunities to strengthen industry’s position.
Having said that, it seems to me reasonable to suppose that any proposition regarding new model for content industry would either resolve these problems or at least show that they stem from my simplistic analysis and limited understanding of mechanisms involved. However, as I already mentioned even though the idea of NBM entered in recent years official discourse and often appears in the media, it is rarely discussed in any greater detail. In fact, it seems that the concept has been reduced to some sort of a catchphrase, often used but rarely understood. Nevertheless, brief review of available publications could indicate that my initial evaluation of NBM for content industry is not entirely implausible.
Number of papers published recently raised the question of practicality of new business model in relation to content industry. For example, Final Report on the Content Online Platform (pdf), published in May 2009 by Information Society and Media Directorate-General of the European Commission, states:

Established business models of the traditional media companies are based on highly evolved approaches to advertising and subscription models – models which themselves are built upon the presumptions of both the ownership or control of intellectual property (i.e. content) and the ownership or control of expensive distribution networks (so that the content can reach the audience).

And further:

Due to the “prototype” business model widely applicable to creative content in Europe, it is difficult to attract risk capital for new online business models and it is difficult in the short term to finance the transition to digital distribution (…).

Nevertheless, whatever are the reasons for my failure to grasp the idea of new business model, I would still remain in the same group as slow to learn officials and execs of content industry.

But are they really that thick?
To be continued…

Update (23 Jul 2009):

Debate with Chris Anderson on John Gapper’s Business Blog, regarding freeconomics (or freemium) could indicate some difficulties that content industries might face with potential development and subsequent implementation of new business models.

In November 2006, comprehensive Gowers Review of Intellectual Property (pdf) was made available to the public and was subsequently endorsed in full by the Government, which committed itself to much anticipated reform of IP law. Throughout the next three years various initiatives and consultations were put in place but the reform failed to materialize. Nevertheless, in January 2009 Department for Culture, Media and Sport published Digital Britain Interim Report setting out strategy for IP in our increasingly digitalized environment. Both documents read together seem to give an account of the volume and intensity of technological changes experienced during the last few years and its impact on political discourse.
The second report may seem to focus to greater extent on users and on Internet as a platform driving the unprecedented social change and at times it may appear as if the officials learned to appreciate the old “don’t fight the internet” catchphrase. Unfortunately this rhetoric is only a result of unwillingness or inability of the authors to explain in greater detail their proposals. It would not be unreasonable to think of later report as a victim of volatile nature of all-out transition from analog to digital. The high-speed of changes and low level of predictability of potential developments in on-line environment may suggest that traditional methods of analysis utilized on all stages of policy-making processes could prove highly unreliable.
All the same, it might be that changes brought by digitalization and rapid growth of the Internet, reached a point when the rule, “don’t fight the internet” finds its way into official discourse. As a consequence, some might think that various stakeholders would have to recognize that governance of the internet as well as attempts to change or influence behaviors of internet users might have to be carried out on “take it or leave it” basis rather than usual “give and take”. This notion might seem to be supported by general understanding that inflexible application and subsequent attempts to enforce analog IP laws in digital space were most likely to fail and would probably carry significant risk of rapid propagation of Mr. Bumble’s jurisprudence who famously stated that “law is an ass”.
On the other hand, it would be naïve to deem as inconceivable a situation in which Internet and its creative forces are sealed in some innovative CD/DVD box and placed on a shelf of local supermarket. How far are we from absolute disposal of “network neutrality” principles and creation of policies, which would give green light to practices such as traffic prioritization? Would that transform intangible social phenomenon into tangible infrastructure? It is certain that in such a situation negotiations between stakeholders would still be harsh; however, the power to dictate the terms of any potential agreement would change sides. Effectively it could turn users back into receivers, Winnie the Pooh with Mickey Mouse would be back in their living rooms and there would be no Star Wars Kid, Numa Numa Dancer or Free Hugs Campaign.
In other words, Internet can be free but it doesn’t have to.
The trouble with current situation is that it leads to a point when most reasonable approach would seem to be the one proposed by Wittgenstein when he wrote:
“(…) what can be said at all can be said clearly, and what we cannot talk about we must pass over in silence.”
Which might pose various practical difficulties in context of policymaking, if not in every possible context. However, I personally would prefer this approach rather than the one, which involves throwing the reason out of the window (pdf).