www.un-aup.com

[Back to the world of the living!]

Today I saw that the Voyager 2 probe stopped making sense. Being a huge fan of the Voyager probes, and seeing that scientists feel they can make this right again, I happily settled into the memories of a 1991 NOVA episode documenting the voyage of these spaceships.

As if to prove the point I brought up in the last article, Ubisoft's DRM servers kindly ground to a halt earlier this week. As a result, about 10% of "Assassin's Creed 2"'s European player base was unable to login. This adds technical failure to the more nefarious risks associated with DRM.

This is the first article in what I hope will be an occasional series, documenting how traditional ownership rights are deteriorating. To understand what I mean by “traditional ownership rights” lets take the example of a book:

If I go in to Powell’s Books and purchase almost any book, new or used, I retain certain rights of ownership, including (but by no means limited to):

The right to dispose of the book in any way I wish (First Sale rights): This means that after I’m done reading the book, I can sell it, or take it back to Powell’s in trade for another book. Similarly, I can loan it to a friend, give it to a library, or just keep it at home. Publisher’s aren’t too fond of this, because they don’t get any money after the first sale takes place, and it’s one of the reasons you see so many new editions of text books with only minor revisions, or changes in page numbering – they want you to buy a new book.

By now, many people have heard that Google will stop censoring search results at google.cn. One thing that I've found delightfully remarkable about this is that the internet is saying thank-you, including SFT, who had previously urged a boycott of Google over google.cn.

I'm not really going to answer this question holistically, in fact, it would take a lot more than a blog to give a complete answer to this question. What can be shown in a blog is that the answer isn't as simple as file sharing, as many in the music industry would like people to believe.

The NYTimes recently ran a story saying that in short order, the music industry will be decimated. This was actually a pretty good read, suggesting that while the first blow was dealt by piracy, the real knock-out punch is going to be online streaming, from services like Pandora. This is an interesting line of thought in and of itself, but what made this article stand out was a beautiful chart listing the rise and fall of every type of music sale from LPs to 8-tracks to Digital Downloads. Taking center stage in that list was the boom and bust of CDs, pictured here:

"Ah Ha!" exclaim recording industry executives "1999 was the year sales peaked, and June 1999 was when Napster was released. Filesharing is the cause of all our problems. QED." Nearly every industry executive who has testified at the three filesharing trials (Thomas trail 1 and 2 and Tenebaum) have testified to this effect, saying that sales are way down as we can see above, and it's all filesharings fault.

However, this issue is not that simple.

In ruling on the case of Universal v. Sony, which would later become known as the Betamax case, District Court Judge Ferguson observed that:

Plaintiffs' experts admitted at several points in the trial that the time-shifting without librarying would result in "not a great deal of harm." Plaintiffs' greatest concern about timeshifting is with "a point of important philosophy that transcends even commercial judgment." They fear that with any Betamax usage, "invisible boundaries" are passed: "the copyright owner has lost control over his program."

This philosophy, that content and access to it is to be controlled absolutely, is one that has only grown since the 1970's.

After The Hon. Judge Gertner ruled summarily that file sharing was not fair use, followed by Joel Tenenbaum’s admission that he had indeed shared songs and previously lied about it on a sworn affidavit, things weren’t exactly looking good for the defense in Sony v. Tenenbaum. Nevertheless, the defense still seemed on face like it put up an exceedingly weak defense, only calling a single witness and essentially throwing his client to the mercy of the jury during closing arguments (although I did enjoy hearing an oblique reference to nullification, when in explaining the verdict form, Defense counsel Charles Nesson told the jury “if they thought it was just they could fill in zero for the amount of damages” even though the objection was sustained).

After the trial was over, Ray Berkman put together a pretty nice list of things he would have liked to see (although some of the arguments became moot after Tenenbaum admitted liability). In addition to Berkman's wishlist, several arguments could have been made to reduce damages specifically within the Tenenbaum case:

1. Nesson should have moved that the Jury Instructions (PDF) include instructions on the limits of punitive damages.
2. More evidence and witnesses mitigating the conceived damage of copyright infringement should have been introduced.
3. Nesson should have reminded the jury that an act of infringement is not necessarily a lost sale.

In a 256 page string of (apparent) ad hominem attacks and straw man arguments, Mark Helprin tries desperately to avoid Godwin's Law, as he argues for a perpetual extension of copyright. Comparisons include Wikipedia Editors to Soviets, Lawrence Lessig to Idi Amin and My-Little-Pony fans to the Khmer Rouge.

Why? As Ars Technica observes

It's about control, the kind of control that allows Helprin to pass his copyrights to his heirs, who at least have an interest in safeguarding his words and work. Without the sort of control represented by tough, lengthy copyright terms, the world would descend into a "bloody nightmare" of remixes that would be "infinitely worse than being in a hippie commune in which anyone who wants to can use your toothbrush—or your diaphragm."

You should read Ars' full review here