P2P and the Future of Private Copying

Since the beginning of the P2P file-sharing controversy, commentators have discussed the radical expansion of copyright law, the industry\u27s controversial enforcement tactics, the need for new legislative and business models, the changing social norms, and the evolving interplay of politics and market conditions. Although these discussions have delved into the many aspects of the controversy, none of them presents a big picture of the issues or explains how they fit within the larger file-sharing debate. Using a holistic approach, this Article brings together existing scholarship while offering some thoughts on the future of private copying. The Article does not seek to advance a new theory or model, which could quickly become obsolete, given the rapid advance of digital and P2P technologies. Rather, it provides guidelines to help policymakers to craft an effective solution to the unauthorized copying problem. This Article begins by examining the RIAA\u27s enforcement tactics, developments in copyright law in 2003, and possible challenges the entertainment industry will face in ensuing years. The Article then evaluates critically proposals commentators have put forward to solve the unauthorized copying problem: (1) mass licensing, (2) compulsory licensing, (3) voluntary collective licensing, (4) voluntary contribution, (5) technological protection, (6) copyright law revision, (7) administrative dispute resolution proceeding, and (8) alternative compensation. Acknowledging the provisional nature of these proposals, this Article contends that policymakers need to adopt a range of solutions that meet the needs of consumers while taking into account the Internet\u27s structural resistance to control, its immutable characteristics as a network, and the changing social norms in the digital copyright world. This Article concludes by challenging policymakers and commentators to step outside their mental boundaries to rethink the P2P file-sharing debate. By presenting thought experiments that compare the ongoing P2P file-sharing wars to (1) a battle for self-preservation between humans and machines, (2) an imaginary World War III, and (3) the conquest of Generation Y, this Article demonstrates that policymakers should not focus on legal solutions alone. Instead, they should pay more attention to market forces, technological architectures, and social norms, which also play very important roles in crafting an effective solution to the unauthorized copying problem. The Article concludes by offering some guidelines that may point the way to this solution

Will Fair Use Survive? Free Expression in the Age of Copyright Control

"Fair use" is a crucial exception to "intellectual property" controls - it allows users to publish, distribute, or reproduce copyrighted or trademarked material without permission, for certain purposes. But extensive research, including statistical analysis and scores of firsthand stories from artists, writers, bloggers, and others, shows that many producers of creative works are wary of claiming fair use for fear of getting sued. The result is a serious chilling effect on creative expression and democratic discussion.Several factors must be considered in deciding whether a use of copyrighted material is "fair." Four factors identified in the copyright law are: 1) the purpose and character of the new work; 2) the nature of the original work; 3) the amount and substantiality of the original work that was used; and 4) the effect of the new work on the market for the original. Examples of fair use are criticism, commentary, news reporting, scholarship, and "multiple copies for classroom use." "Will Fair Use Survive?" suggests the need for strengthening fair use so that it can be an effective tool for anyone who contributes to culture and democratic discourse. The report finds: Artists, writers, historians, and filmmakers are burdened by a "clearance culture" that ignores fair use and forces them to seek permission (which may be denied) and pay high license fees in order to use even small amounts of copyrighted or trademarked material.The 1998 Digital Millennium Copyright Act (the DMCA) is being used by copyright owners to pressure Internet service providers to take down material from their servers on the mere assertion that it is infringing, with no legal judgment and no consideration of fair use.An analysis of 320 letters on the Chilling Effects website, an online repository of threatening cease and desist and "take down" letters, showed that nearly 50% of the letters had the potential to stifle protected speech. Report Highlights:The giant Bank of America sent a threatening letter to a small ceramic piggy bank company called Piggy Bank of America, claiming its use of the name was a trademark violation.A "planetary enlightenment" group called Avatar consistently suppressed online discussion group postings critical of its program by using DMCA "take down" letters.MassMutual sent a cease and desist letter to the gripe site "MassMutualSuks.com," claiming trademark infringement.Mattel sued artist Tom Forsythe for his series of "Food Chain Barbies," acerbic commentaries on Mattel's role in perpetuating gender inequality. Only after a long, bruising court fight did Forsythe win the right to parody Barbie.The report recommends: creating a clearinghouse for information, including sample replies to cease and desist and "take down" letters; outreach to Internet service providers who are instructed by companies to take down sites with material they claim as copyright-protected; changes in the law to reduce the penalty for guessing wrong about fair use; and the creation of a national pro bono legal support network.On December 15, 2005, Representatives Rick Boucher, Zoe Lofgren, and John Doolittle circulated a "Dear Colleague" letter praising the report for explaining why fair use "is a crucial part of our copyright law," and why legislation is needed to secure fair use rights in the digital environment

Copyright and shared networking technologies

PhDThe technological zeitgeist has transformed the social-cultural, legal and commercial aspects of society today. Networking technologies comprise one of the most influential factors in this. Although this transformation can be discounted as a mere historical phenomenon dating back to the advent of the printing press, empirical data concerning usage of these technologies shows that there has been a radical shift in the ability to control the dissemination of copyright works. Networking technologies allow, in an unprecedented manner, user-initiated activities including perfect replications, instantaneous dissemination, and abundant storage. They are immune to technological attempts to dismantle them, and impervious to legal attempts to control and harness them. They affect a global audience, which in turn, undermine at negligible costs, the legal and business parameters of copyright owners. The problem is whether it will now be possible to establish a copyright framework which balances the interests of the following groups: (a) copyright owners in their control of the dissemination of their works; (b) authors demanding remuneration for the exploitation of their works; (c) users wishing to consume works with clear immunity guidelines using networked technologies; (d) technologists striving to continuously innovate without legal and policy restrictions. Copyright law is not a mechanism for preserving the status quo or a particular business model. It is, as suggested above, a reflection of the needs and interests of authors, copyright owners, entertainment industries, users and technologists. This thesis examines whether the balance between these actors can be achieved and, if so, how it can be implemented within international, regional and national copyright laws. It finds that a balance can be struck; but that this balance should be aligned along three key concepts: user integrity; technological innovation; and authors‘ and owners‘ remuneration. The proposal is that the optimal method for achieving this triptych is the introduction and global implementation of a reasonable and unobtrusive system of remuneration

Promoting Innovation and Economic Growth: The Special Problem of Digital Intellectual Property

There has been an explosion in the popularity of downloading and transmitting high-value digital content, triggered by the growth of the Internet and the evolution of peer-to-peer systems. At the same time, there is a substantial disconnect between public attitudes toward copyright and the letter of the law, and growing concern among copyright-holders over the erosion of their rights. The National Academy of Sciences has identified the phenomenon at the center of these developments and labeled it the "digital dilemma": The same technologies that allow the creation and manipulation of digital content (as well as its perfect reproduction and nearly free distribution) can also be used to prevent access to digital content. The result is a major policy debate between those who seek to protect their rights in digital content and those concerned about the public access to content that has traditionally been guaranteed under copyright law. In this emerging digital world, what, if anything, should be done to ensure that authors, artists, songwriters, and musicians have adequate incentives to create content? And what, if anything, should be done to protect the public's access rights, developed in the physical world, in order to encourage innovation and dissemination and to enhance the public domain? This report from the Digital Connections Council (DCC) of the Committee for Economic Development presents a different view of this "digital dilemma." Because of CED's mission to foster economic growth, the DCC has focused on the economic impact of copyright protection in the digital age and the potential economic effects of proposals for change. The report briefly explores the history of copyright law, revealing that legal protection of the rights of creators has always been explicitly balanced against protection of ongoing innovation. The DCC brings the perspective of the second innovator -- the creator of new social value based on existing copyrighted works -- to bear, noting that every creator owes a debt to what has come before. For this reason, our intellectual property systems are based on providing incentives to both create new material and to make such material open to the public for use for subsequent creation. The report then discusses current proposals for legislative and regulatory change, focusing on requests by the content distribution industries for technical copy protection mandates. Such mandates would have substantial effects on the information technology and consumer electronics industries in this country, on innovation, and on the economic growth that stems from the freedom to innovate

Re-thinking crisis in the digital economy: a contemporary case study of the phonographic industries in Ireland.

Many commentators and reports popularly place the record industry in an increasing state of crisis since the advent of digital copying and distribution. This thesis addresses how the interplay of technological, economic, legal and policy factors, particularly the copyright strand of intellectual property law, shape the form and extent of the Internet’s disruptive potential in the music industry. It points to significant continuities regarding the music industry in an environment where it is often regarded as experiencing turbulence and change, and in doing so the thesis challenges the form and extent of the crisis the music industry currently claims to be battling. The thesis questions the impact the internet is having on the power or role of major music companies, their revenue streams, their relationships with other actors in the music industry chain and their final consumers. The thesis further questions the extent to which the internet has evolved to realise its disruptive potential on the organisation and structure of the record industry by democratising the channels of distribution. It also serves to illuminate the impact of the internet on the role of more traditional intermediaries, particularly radio, in the circulation and promotion of music in the contemporary era. For its primary research material, the thesis draws on a series of thirty-nine interviews conducted with record industry management and personnel as well as key informants from the fields of music publishing, artist management, music retailing, radio, the music press, related industry bodies and policy fields, and other key commentators

The Copyright Divide

Most recently, the recording industry filed 261 lawsuits against individuals who illegally downloaded and distributed a large amount of music via peer-to-peer file-sharing networks, such as KaZaA, Grokster, iMesh, and Gnutella. Although the industry\u27s recent approach was controversial and resulted in major criticisms from legislators, academics, civil libertarians, consumer advocates, and university officials, the copyright holders\u27 aggressive tactics are not new. In fact, copyright holders have been known for using, or encouraging their government to use, coercive power to protect their creative works. Only a decade ago, the U.S. copyright industries have lobbied their government to use strong-armed tactics to coerce China into protecting intellectual property rights. Succumbing to U.S. trade pressure, the Chinese authorities eventually raided pirate factories and handed out harsh penalties, including the death penalty and life imprisonment in severe cases, on their citizens. The similarities between the RIAA and China stories were more than a coincidence and could be further linked to a third story. That story took place two centuries ago when the United States was still a less developed country. At that time, book piracy was rampant, and the United States was considered one of the most notorious pirating nations in the world. This Article brings together, for the first time, eighteenth- and nineteenth-century America, twentieth-century China, and twenty-first-century cyberspace and analyzes them using a cross-cultural, cross-systemic, cross-temporal, and cross-sectoral approach. This Article not only highlights the striking similarities among the three stories, but also argues that these similarities provide insight into the war on piracy, intellectual property law reforms, and international harmonization efforts

The Copyright Divide

Most recently, the recording industry filed 261 lawsuits against individuals who illegally downloaded and distributed a large amount of music via peer-to-peer file-sharing networks, such as KaZaA, Grokster, iMesh, and Gnutella. Although the industry\u27s recent approach was controversial and resulted in major criticisms from legislators, academics, civil libertarians, consumer advocates, and university officials, the copyright holders\u27 aggressive tactics are not new. In fact, copyright holders have been known for using, or encouraging their government to use, coercive power to protect their creative works. Only a decade ago, the U.S. copyright industries have lobbied their government to use strong-armed tactics to coerce China into protecting intellectual property rights. Succumbing to U.S. trade pressure, the Chinese authorities eventually raided pirate factories and handed out harsh penalties, including the death penalty and life imprisonment in severe cases, on their citizens. The similarities between the RIAA and China stories were more than a coincidence and could be further linked to a third story. That story took place two centuries ago when the United States was still a less developed country. At that time, book piracy was rampant, and the United States was considered one of the most notorious pirating nations in the world. This Article brings together, for the first time, eighteenth- and nineteenth-century America, twentieth-century China, and twenty-first-century cyberspace and analyzes them using a cross-cultural, cross-systemic, cross-temporal, and cross-sectoral approach. This Article not only highlights the striking similarities among the three stories, but also argues that these similarities provide insight into the war on piracy, intellectual property law reforms, and international harmonization efforts

This property's mine; or the point missed entirely? The coevolution of copyright and technological protection measures; a framework for analysis

Through the location of the mechanisms and forms that support our current state of being, I seek to illustrate imbalances in legal scholarship pertaining to Technological Protection Measures ('TPM'). In the process of this undertaking, a second intention can be ascertained, namely the inaugural formulation of an analytical framework that not only vitalises TPM scholarship, but other areas of the law grappling with the same technological problems posed by late modernity. This framework is ultimately described as Deleuzo-Foucauldian, emanating from the critical theories of Gilles Deleuze and Michel Foucault and a subset of academics that have either made similar observations, or elaborated on their legacies. After introducing the central preoccupation of this thesis in chapter one, chapter two will outline the critical theories underpinning the Deleuzo-Foucauldian framework I wish to advocate. In chapter three I describe the historical evolution of TPM, and illustrate how the general academic perception that TPM are a distinctly late- modem phenomenon is an illusory myth. Advocating that we undertake the writing of a Foucauldian 'genealogy' of TPM, in this process, will enable us to observe the contingencies that have brought about changes in copyright law and technological development and to observe power relations and diagrammatic shifts that have rendered a correlative evolution of copyright and technology problematic. In chapter four I attend to a strict legal analysis of the law on books, redressing what I perceive to be a predominantly US-centric approach to legal academia pertaining to TPM and copyright, drawing an analysis between US and European legislation. In chapter five I discuss the peculiar relationship of the role of law, with respect to those seeking to pursue legitimate fair use rights or permitted exceptions to copyright prevented by TPM. I also address oft-overlooked rhetorical tropes pertaining to IP generally, and TPM specifically. Finally, in chapter six I offer a conclusion

The End of Ownership: Personal Property in the Digital Economy

An argument for retaining the notion of personal property in the products we “buy” in the digital marketplace. The open access edition of this book was made possible by generous funding from Arcadia – a charitable fund of Lisbet Rausing and Peter Baldwin. If you buy a book at the bookstore, you own it. You can take it home, scribble in the margins, put in on the shelf, lend it to a friend, sell it at a garage sale. But is the same thing true for the ebooks or other digital goods you buy? Retailers and copyright holders argue that you don\u27t own those purchases, you merely license them. That means your ebook vendor can delete the book from your device without warning or explanation—as Amazon deleted Orwell\u27s 1984 from the Kindles of surprised readers several years ago. These readers thought they owned their copies of 1984. Until, it turned out, they didn\u27t. In The End of Ownership, Aaron Perzanowski and Jason Schultz explore how notions of ownership have shifted in the digital marketplace, and make an argument for the benefits of personal property. Of course, ebooks, cloud storage, streaming, and other digital goods offer users convenience and flexibility. But, Perzanowski and Schultz warn, consumers should be aware of the tradeoffs involving user constraints, permanence, and privacy. The rights of private property are clear, but few people manage to read their end user agreements. Perzanowski and Schultz argue that introducing aspects of private property and ownership into the digital marketplace would offer both legal and economic benefits. But, most important, it would affirm our sense of self-direction and autonomy. If we own our purchases, we are free to make whatever lawful use of them we please. Technology need not constrain our freedom; it can also empower us.https://repository.law.umich.edu/books/1114/thumbnail.jp