paper ideas

law / licensing / paper ideas / school / wikipedia — 4 Comments
23
Apr 07

the class I’d really like to take.

For class today we had to listen to this recording of Moglen and Lessig at Wikimania last summer. Sigh. My IP class has generally been good, but man… I would love to take a class which consisted of ‘understand everything touched on in that lecture.’ You could squeeze in deep philosophy of copyright; the relationships between engineering and license-writing; sociology and mechanics of lawyering; anthropology and politics of copyright-based social movements; wiki-production; the long tail (specifically Benkler’s twist on it)… lots to deconstruct and to study. Class list for next year comes out in a couple weeks; hopefully Prof. Moglen will be teaching something like this :)

(And you get to hear Lessig make fun of Zittrain (the panel moderator) for being about 12 years old. What could be more fun/inside baseball!)

(Last day of classes… “only” exams to go, and then a week in North Carolina relaxing before work starts.)

[Ed. later: for 'relaxing' in that previous sentence, read 'decompressing lest my brain explode.']

licensing / misc. / paper ideas — 9 Comments
22
Feb 07

apple DRM by analogy

Some DRM analogies that popped out of my poor brain a while back and never got properly elaborated. These are still mostly in the ‘thinking out loud’ stage, so thoughts/comments/constructive criticisms appreciated, and don’t take them too seriously.

Model T:’any color you want as long as it is black’::ipod:FairPlay

Hypothesis: this works fine now, but people will eventually tire of it and demand more/better. We’re still realistically very early in the digital media game. Alternately, 100 years into the automative age we’re still pretty mediocre at buying on actual quality v. perceived quality.

ipod:DRM skeptics::car:American fans of mass transit

Hypothesis: DRM skeptics, despite being ‘right’ in some senses, are maybe doomed to be ignored by 99% of their compatriots, because utility trumps all other considerations. Possible flaw in the analogy: cars enhance personal autonomy, which overrides their social disutility; ipods diminish personal autonomy, which may at some point override their personal utility.

jobs letter:EU DRM antitrust concerns::MS + Novell agreement:EU patent/format antitrust concerns

Like Microsoft’s agreement with Novell, Jobs’s open letter on DRM was largely about urging European antitrust regulators to look elsewhere, not about actually helping customers. Just as MS tried to make Red Hat and the rest of free software look unreasonable by licensing with Novell, knowing that Novell is not a serious threat to their business, so here is Apple primarily urging the EU to place the blame for DRM’s anti-competitive nature at the feet of the labels, rather than on Apple, knowing that the labels are very unlikely to actually let go of DRM anytime soon.

law / licensing / paper ideas / software — 2 Comments
22
Feb 07

spillover, arts patronage, and Linux

LHOOQ[Old post that I meant to elaborate on, but never did; seems worth pushing out now; maybe I'll write more about it later if anyone finds it interesting :)

On the day before Christmas, I read a paper on 'spillover' by Brett Frischman and Mark Lemley. In a nutshell, the paper is an attempt to think about the value created when new intellectual property is created, but which for various reasons isn't, can't be, and/or perhaps shouldn't be captured by making IP more like 'real' property. They call this additional value 'spillover'- in copyright, an example would be the period after the expiration of the copyright grant or fair use, both of which represent value which (for various reasons) we don't allocate exclusively to the original copyright owner. [Image of an arguably fair use; search for Koons in the linked article.]

On Christmas itself, Krissa gave me Marks of Opulence, a book about the ties between economic trends and art production. I’ve been plowing through it at high speed, because I’m interested in the links between the financing of art and the financing of free software- both of which are goods which aren’t as predictably monetizable as other similar goods (commercial buildings, for example, or proprietary software.) The book is rife with examples of ‘spillover’- first and foremost the centuries of art created primarily to further the ends of religion, which had unintended secondary beneficial aesthetic effects spilling over hundreds of years, which were not necessarily captured completely by the churches or their sponsors.

I don’t have any stunning revelations from these two pieces yet. But I think there are likely some good nuggets to be had. Spillover is where most of the value in free software is, obviously; we’ve put various labels on it- services, consulting, etc., but I like having one term- ‘spillover’- which covers all of it. Similarly, I’m pleased that there is a very long and distinguished history of great works created whose value was always primarily spillover- there was always, of course, a strong desire to own most of the great works, but other non-proprietary, non-commercial, and often irrational motivations have always played a part in sponsoring these works.

forfacebook / paper ideas / software — No Comments
14
Jan 07

new research on motivation and money

I haven’t had a chance to read the whole thing yet, but those who were interested in my past post on intrinsic motivation might be interested in this study on the psychology of money, from Science late last year. Apparently even the mere mention of money can make people less helpful- “Reminders of money, relative to nonmoney reminders, led to reduced requests for help and reduced helpfulness toward others.” There is also a related article which gives some context. Note that the survey was performed on undergrads in Minnesota and so probably has significant cultural biases; it would be very interesting to see a cross-cultural replication of the survey methodology.

[Ed.: this is really quite interesting; the paper is more nuanced than the bit I originally came across- the core of it is that reminders of money makes people feel more independent- not just less likely to give help, but also less likely to ask for help. The report ties this into a number of things, including self-image of those who are unemployed. Well worth a read.]

law / licensing / misc. / paper ideas / software — 4 Comments
10
Jan 07

misc. links before I go to my 8am class (ugh)

forfacebook / law / paper ideas / school — 1 Comment
30
Nov 06

Banning Laptops in Classrooms- a Student View

[Cross-posted from First Movers; comments off here but on over there.]

In the Contracts and Civ Pro classes I just finished yesterday, laptops were banned and ‘strongly discouraged’, respectively. At the beginning of the semester, I described this as understandable but ‘regressive and damaging’, so I thought it was fair to revisit this, especially since Prof. Dorf blogged his own thoughts on the experience in our Civ Pro class. Some thoughts in response to his post and my own at the beginning of the semester:

  • Prof. Dorf says that by the end of the semester, only ’0 or 1′ students were using laptops in his class. There were actually two daily laptop users. I’m not sure that this oversight means much.
  • I used a Tablet PC every day in class, instead of a traditional laptop. I used to speak to computer conferences, so I sympathize with complaints about the literal wall that laptops put between speaker and audience, and I use a tablet PC in large part because I don’t want to create such a barrier. If Prof. Dorf thought that 0 students were using laptops some days, then the Tablet probably worked. (Or he’s generously ignoring me…)
  • Comparing to the experience in my laptop-allowed class, the internet is definitely an attractive nuisance. Killing the internet (as one of Dorf’s commenters points out) would remove a lot of the professor’s problems, while still allowing students to type/organize/craft notes in ways they can’t do on paper.
  • Prof. Dorf cites as a benefit of banning laptops that using paper forces active reorganization and rewriting of notes, which helps learning. I’m not sold that the laptop really impacts that- everyone I know is still reorganizing and rethinking all their typed notes from other classes, just as they are doing for their paper notes. In some cases they are copying and pasting instead of typing it for the first time, but I’m not sold that this really has that much of an impact.
  • Both Prof. Dorf and Prof. Scott sent out written summaries (not powerpoint decks!) after each class, which supplemented our own notes and made people less nervous about the need to take verbatim notes themselves. This was an excellent technique which I think every professor should emulate, not just in law schools. It allowed people to focus more on discussion in class, and focus less on becoming court reporters (as Prof. Scott put it.) If the professors wanted to be really bold about it, they’d put the notes in a class-editable wiki, but maybe that is too much to ask.
  • Dorf mentions that the internet does occasionally allow for interesting in-class research, especially in seminars. Professors might consider doing what Prof. Zittrain sometimes does, and having a designated class Googler each day- that person (and only that person) is connected to the internet and can google/wikipedia/etc. whenever someone requests it, without getting half the class all hitting Google at once. If the classroom permits it, Prof. Zittrain will actually put that person’s screen up on a projector- both to keep them honest about what they are googling, and to have better class participation around that searching.

If you looked just at those factors above, you’d probably conclude that there are no strong reasons to permit laptop use in classrooms. But on the other side, though, is the sense that students feel entitled to use the laptop, and that professors feel entitled to undivided attention- with all the problems (on both sides) that a sense of entitlement creates. In his blog post, Prof. Dorf linked to this article, saying it explained why he wanted to ban laptops. The article does have a lot of good points, but I think it also captures why so many law students are skeptical of professors who would seek to banish laptops- right in the first paragraph:

It was a privilege to have a captive audience… Teaching felt like a cooperative enterprise between me and my students.

(Emphasis mine.) My immediate reaction to reading this was to think that the audience is either captive or cooperative- you don’t get both. After mulling it over, I’m not sure that is necessarily right- obviously the best professors can create a cooperative experience, and almost by definition their students are still captive. So the conflict isn’t inherent, but it is often going to be present- because, well, most professors do think of their students as captives, and most don’t ever actually achieve a “cooperative enterprise” with their students. Dorf and Prof. Scott (the other professor of mine who banned laptops) are among the best teachers I’ve ever had. So it isn’t surprising that students would reasonably happily turn off laptops in their classes. The real friction between students and professors who want to ban laptops will happen in classes where students really do feel like captives- and unfortunately, that is all too many classes. (I’d bet, actually, that if all students were asked by professors to not use laptops, but they weren’t explicitly banned, the percentage of laptop use would almost perfectly correlate with teaching evaluation results.) For professors who can’t or don’t want to be good teachers, allowing laptops in class seems to me like a good counterweight- freeing students to make more efficient use of their time, and (to a certain extent) allowing them to communicate their displeasure in a semi-socially acceptable way.

So: the internet is going to remain distracting; laptops (at least until people switch to tablets) will continue to create a wall between speakers and audience; and most professors will continue to be pretty bad at teaching. That makes it pretty difficult to create school-wide policy, as several schools have tried to do. Given my experiences this semester, if I were asked to create a school-wide policy, it would probably look something like:

  • professors may ask (but not require) that laptops not be used in their classes; if professors do request that, they be required to send out regular summaries to the class, to encourage focus on the discussion and not on note-taking.
  • the school should tell incoming students that Tablet PCs are generally preferred.
  • the internet (perhaps except for lexis/westlaw/the library) should be turned off in class, with the exception of a panel/panelist who is responsible for googling for relevant questions in an interactive class.

I’m curious what others here think of this- having only gone through one semester (and with more classes that ban laptops than not) I may not be well positioned to give this a fair and complete analysis.

[Picture: Rebecca MacKinnon using a laptop at iLaw 2005, part of a flickr set that is probably the only way I'll ever be able to link to myself and Lessig in the same breath.]

forfacebook / misc. / paper ideas — No Comments
20
Nov 06

two good reads

Things I spotted while putting off my real work:

Biella Coleman, talking about bringing free software perspectives to other domains. I used to get irritated when people said ‘oh, this is just like open source!’ but I’m getting more positive about it. Our discourse is so saturated with the notion of the market that an alternate framing for non-market or extra-market interactions isn’t necessarily a bad thing, even if it does use and abuse what free software is/was about.

Clay Shirky, talking about costs and benefits of new systems, in this case, wikipedia and expertise. I don’t think I’ve fully digested this post, but the gist of it is fairly thoughtful: what happens when the costs assumptions you take for granted are blown up? What does that mean for other aspects of your product, and for your competition? Shirky makes a pretty good argument that this does particularly nasty things to Britannica because the cost of certifying expertise and filtering out non-expertise is very high. Much more nuanced understanding of expertise and certification of expertise than the last link of his I posted.

law / licensing / paper ideas — 5 Comments
10
Oct 06

why DRM and our copyright system don’t play nice together

[Originally posted at First Movers. Comments should be made there.]

[Update: !@#@!#@!ing POS WP text editor.]

Disclaimer
Keep in mind that IANAL, and I’m still learning the limits of some of the things I’m talking about, so my legal claims may not be 100% accurate, though I stand behind the moral and legal intuition behind them. Also keep in mind that I’m tired, and will have no time in the near future to flesh this out to the length it deserves, so it may appear skimpy- that is not my intent, just my reality ATM. I look forward to comments on the post that might help improve, refine, or if need be correct the arguments.


With all that said, here is why I think DRM breaks our current copyright regime and as such is a problem.

The Nutshell

There are lots of facets- completely ignoring the hypothetical right to ‘share’ that many anti-DRM arguments depend on- that make up the constellation of rights and restrictions that we group together as ‘copyright’. I believe that DRM is fundamentally incompatible with several of these rights; extending some that should not be extended, and reducing others that should not be reduced.

The Rights of A Buyer of a Copyrighted Good

When you buy things, you have certain rights as a buyer. Most relevantly, since 1908 in the US, buyers of copyrighted goods have had a right to resell the good, a statutory right which has become known as the First Sale Doctrine. The basic idea comports with our intuitions about something we’ve bought- once you’ve bought something, you own it (like you own, say, your car), and can do with it basically as you please.

All current DRM (that I’m aware of) breaks this basic statutory right, as it is tied to a specific piece of hardware and does not allow the user to transfer the rights to different pieces of hardware. One could conceivably write DRM that allows resale, but it seems unlikely that this would occur unless it is statutorily mandated, since the publishing industries have been opposed to the first sale doctrine since Day One, and they dictate the design of most modern DRM.

[I personally believe that the first-sale doctrine also implies the right of users to use as they see fit before the sale- for example, moving it from one computer to another. This is a use model that is conceptually very, very difficult to fit into a DRM model without requiring people to register every computer/media player they own with a central registrar. But I really don't know anything about the rights of users to use goods once they've bought them, so I won't elaborate on this point much. Talk to me again about this one in a year :)]

The Rights of a Copyright Holder

In the US, copyrights derive from the Constitution, particularly the ‘promotion of science’ clause in Article 1. Specifically, the Constitution grants Congress the ability to create copyrights and patents ‘for limited times’. Conceptually, the Founding Fathers understood copyrights not as ‘intellectual property’ but as ‘limited monopolies’- that is, as monopolies granted by the state. While modern statutes haven’t really respected that notion, the basic intuition is sound- the state grants creators specific rights, and rights which are not granted to creators by the state should be reserved to the people in exchange for bearing the costs of a monopoly. Creators do not, and have never had, unlimited rights to do as they choose with their creations- which is something assumed by everyone who argues for ‘it is mine, so why can’t I put DRM on it?’

So, we limit the rights of copyright holders, and have since the day copyright was written into the Constitution. The first limitation, and most obvious (given the Constitution’s language) is on the length of copyrights. A DRM system that respects this right isn’t inconceivable- it would merely require that the player software phone home to a ‘trusted’ clock. But I’m pretty sure no current system does this, and depending on the existence of a remote server to get access to goods one owns when the copyright on the good expires does not seem like a wonderfully reliable mechanism for what is supposed to be a fundamental right in our system.

Much more problematic is the idea of fair use. Fair use, in a nutshell, is the idea that certain usages (educational uses, for example) cannot be prohibited by a copyright holder. There is no ‘bright line’ in fair use law- every case is decided on its own merits, which vary from situation to situation based on a number of tests. That makes deciding whether or not something is fair use very hard for judges. It also means that if you can make DRM which allows fair use, congratulations- you’ve written an AI, and you’re going to make a lot of money. In short, there is no way to write DRM which respects fair use- any copyright holder who uses effective DRM is saying ‘screw you’ to the limitations on copyright which our system has developed over the past 200 years, and replacing our legal system with technological force.

The canonical example of this last issue, in my mind, is the film teacher who wants to teach her students by showing clips from important films. Copyright law in this country makes it clear that the copyright holder cannot prevent the film teacher from editing the clips to use in her class as appropriate.

Summary

You don’t have to like file-sharing or hate Big Music to be against DRM. You just have to like the basic system of copyright law which we’ve evolved over the past 200 years- a system with fairly minimal buyer’s rights, and with fairly minimal restrictions on state-granted monopolies, and which even then is trampled on to various degrees by all existing and hypothetical DRM systems.

Future Avenues for Exploration

Once you start thinking about ‘What rights do we currently have? Would DRM take them away?’ there are a number of other issues that can be explored, which I might do in the future, but which I won’t right now. Among them:

  • Opt-in DRM: In the US, the presumption is that anyone who breaks DRM is guilty of a violation. Perhaps the legal regime should be shifted, making it illegal to apply DRM which creates new defacto rights. This would allow DRM to be used in cases like trade secrets, where there is no ‘limited time’ clause or fair use, while preventing its use in situations like copyright, at least until someone invents that darn AI.
  • Market forces: in the past, we’ve depended on the legal system to protect our rights. Should we depend on market forces in the future, as argued by some of those who support DRM? If we do depend on market forces to protect our rights as consumers, how does DRM impact competition (amongst DRM providers, tool providers, content providers, etc.)?
  • Other forms of IP: not all forms of IP have the same sets of rights and limitations. Would it be possible to envision DRM that is compatible with the legal regime for non-copyright IP (think: trade secrets), or DRM for copyright as envisioned in other nations?
  • Personal Use IP: we use copyright now in some circumstances where the item copyrighted isn’t beneficial to society in the way the founders envisioned. For example, some people copyright their pictures in part to help prevent unauthorized uses. Is it time to create a separate IP right whose motivation is personal privacy, akin more to trade secrets than copyright? If we did, would use of DRM be appropriate there?

Of course, there are also the other much-rehashed questions- how IP creators are supposed to make money without DRM, whether or not DRM is ‘just’ a form of contract (a la a EULA), and not a copyright license, etc.

[Image: a Viking padlock, via Wikipedia.]

licensing / misc. / paper ideas — 2 Comments
2
Oct 06

ponderings on other economies

On the same day he spoke with Chris Anderson about the implications of Long Tail for alternative means of producing IP, Lessig blogged ‘on the economies of culture‘. The fine folks over at Tech Liberation Front have posted recently on how markets don’t need money, and more recently on the gift economy.

I’d love to have coherent thoughts on this, but I don’t right at the moment. Some jotted down bits that might get refocused later:

  • The hybrid economy will happen on a sliding scale. Some participants (Lessig, for example, or the Grateful Dead and Phish) will be able to make money very reliably on the second-order effects (tenure for Lessig, live shows for Dead/Phish). They will, in general, opt for very liberal licensing of their first-order IP creations- books for Lessig, recorded music for the Dead/Phish. On the other end of the spectrum will be those who can’t for some reason reliably make money from second-order effects- musicians who hate performing live (or who suck at it) would be likely the most common example of this. They’ll obviously want to license as restrictively as possible. The middle ground will be occupied by, for example, RHEL, who will strictly license their trademark, but not their code, since they can reliably generate revenue as long as no one confuses the non-supported code with the officially supported version.
  • There will be a big business in helping people make the transition from enthusiastic volunteer to paid creator, or in surfing that boundary. We’ve already seen in free software that lots of people want to create for free; but that most of those people, given a choice, will happily take money to create full-time. So there will be services around channeling money to volunteers. Bounty programs; advertising placed on volunteer-owned websites (i.e., blogs); or professional placement specialists who help people find jobs that meet their demonstrated need- we’ll likely see more of all of these.
  • Editors/tastefinders will become even more important. Red Hat is already such an editor; editing and confirming quality is what people pay for RHEL for. Easy enough to imagine radio stations of CC-licensed music with paid advertising, or websites selling ads on cc-licensed pictures.
  • At Tech Liberation Front, I noted that as great as whuffie is, it doesn’t pay the bills. We’re not actually post-scarcity yet. I think this is a huge problem for volunteer communities. It means that whenever you feel like the rent, or retirement, or whatever $CASH_REQUIREMENT is hanging over your head, activities which don’t generate cash right now go right out the window. I think we’ll all be better off when whuffie-generating activities can also pay the bills directly- they’ll be more stable, more predictable, more useful. (And people will still be able to opt-out if they just want to have good, clean fun.)
  • Lessig’s meanderings are interesting, as always, but I am confused by his assumption that GPL (which defacto makes everything Free) is somehow incompatible with a hybrid economy, when the very first examples of hybrid economies that he cites- Mozilla and RH- both make their money while owning virtually none of their core IP. I respect that he is trying to push for flexibility in licensing while people experiment with hybrid business models, but it seems like in this post he unecessarily and incorrectly slammed those who disagree with him.
law / paper ideas / software — 3 Comments
29
Sep 06

NetTrust: security and online identity verification

I’m interested in the problem of online identity, in part because of its relationship to trademark. Trademark theoretically verifies identity and source, but as anyone who has seen a phishing email knows, trademark is becoming more and more meaningless in that respect. (Many of the arguments I’ve seen for ‘we need stronger trademark’ really are arguments for ‘we need stronger fraud prosecution’.)

The NetTrust project looks like an interesting attempt to resolve the issue by using your browsing history, your friends’ browsing history, and third party sources (presumably like stopbadware.org) to help verify a website’s identity in the client- i.e., where it can’t be manipulated by the website you’re looking at. Very interesting idea- I’ll definitely be keeping an eye on it, and those who are concerned with ‘software identity’ (Java and Firefox, I mean you) should probably poke at it and think about it too.

I’m not sure whether or not this has formal legal ramifications, but it does seem like it is worth thinking about the utility of trademark in an online context, where other characteristics can be used to verify identity and quality in ways that may or may not be available offline.

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This work by Luis Villa is licensed under a Creative Commons Attribution-ShareAlike 3.0 United States.