Better than Sliced Bread – Google Scholar Enters Our Lives

For those who haven’t seen it yet, Google recently launched Google Scholar.  This is huge for a number of reasons.

Google Scholar is a research search tool designed specifically for scholarly research, including legal research.  Although it does not offer everything that the giant, expensive, legal search providers have, it looks like it has a lot of very useful tools.  Check out the “How Cited” links (example), the reporter pagation in the left hand margin (example), and, for your jurisdiction specific searches, the advanced search options.

In addition to being a very useful legal tool, Google Scholar is worth attention here because it involves a number of intellectual property issues.  In the United States, case law is part of the public domain.  The inclusion of court opinions therefore poses no IP problems. However, Google Scholar also includes access to journal articles, books and such copyrighted materials.

Google Scholar seems to balance the access to these materials and protection of the copyright in a few different ways.  For some documents, Google Scholar provides a link to an outside paid service such as HeinOnline, JSTOR and even Lexis and Westlaw (links are to examples.)  These services provide you a snippet of the item and offer you ways to view the entire document.  Local libraries may provide free access to some of these databases and Google Scholar has a mechanism to help users find libraries with access.  Basically, in these cases, Google has skirted the potential copyright issues by linking to already existing services.  These services have already worked out the copyright licensing logistics for their resources.  Google just points the users to the resources and the service takes it from there.

For full text articles are also available from non-paid sites.  It appears that in these cases the articles are already available online from journal sites, publishers, and university sites (links are to examples).  Google again just points the users to the article.  In many cases, these links are to pdfs, so the user may not realize what site is providing the materials.  Some sites may not like this, or may have other reasons for desiring that their material not be included in the Google Scholar searches.  Google offers them the option of having their materials removed.

The biggest area of copyright contention in which Google Scholar seems to be involved is with regards to materials not accessible via any third party site, either paid or free.  These materials, when available, are available through Google Books.  While Google is still working through the copyright muck there, Google Scholar has done a good job of utilizing resources that are already available.

Google Scholar may be a new competitor for some of the expensive, traditional, legal research tools, but at its core it is really just a focused version of what Google does best, search.  Luckily for all the users out there, most of the copyright issues surrounding searching and linking have already been worked out.

Copyright War Summit Report: Law vs. Technology: Embracing Not Suing New Technologies

Today Ip’s What’s Up brings you our report on the last of the four BrightTalk presentations in the Copyright War Summit we attended: Law vs. Technology: Embracing Not Suing New Technologies.  E. Michael Harrington explained his four work mantra and reviewed the good, the bad and the neutral of copyright and technology.

Harrington’s Mantra

• Everything – access to all audio/visual media
• Everywhere – access in your home, on any mode of transportation, anywhere you might go
• Anytime – access any and all the time
• Anyway – including using media to create derivative works and using whatever device you please to access and change media

The realization of Harrington’s mantra is currently blocked by both law and technology.  Copyright law prevents ‘everything’ and ‘anyway.’  Technology, with its proprietary protections, can prevent ‘anyway’ as well.  ‘Anytime’ and ‘everywhere’ are pretty well covered now, being allowed (to some extent) by both technology and the law.  Harrington’s good/bad/neutral list helps explain how technology and the law both hinder and help in the achievement of Harrington’s Mantra.

Copyright and Tech – The Good, the Bad and the Neutral

The Good

• The Sony Betamax case from 1984, introducing “substantial noninfringing use” and “time shifting” as key copyright terms (also mentioned by Howard Knopff during his presentation)
• Audio Home Recording Act of 1992 (AHRA), allowing consumers access to blank digital media (and imposing a levy on specific blank digital media, paid to the recording industry)
• RIAA v. Diamond Multimedia case from 1999, allowing consumers access to mp3 players
• introduction of the iTunes music store in 2003, allowing consumers a legal and easy way to download music
• Amazon introducing DRM-free mp3s in 2008

The Bad

• Telecommunications Act of 1996, deregulated the broadcast industry so that it was ok for a single company to own many, many stations (for plenty of commentary on why this is bad and where it’s led, see Inside Music Media)
• Digital Millennium Copyright Act [pdf] in 1998, made circumventing technologies put in place by media owners a crime in itself, regardless of legality of use of the media
• UMG v. Mp3.com case in 2000, Mp3.com was the first of the ‘store your own music in the cloud’ music lockers; Universal’s lawsuit shut down the service
• A&M v. Napster case in 2001, the infamous case that changed the face of Napster.  Harrington pointed out that there were “so many reasons why [turning Napster into something the industry could use] should have worked”
• Closing of Tower Records in 2006, the beginning of the end of brick and mortar record stores

The Neutral

• Marketplace
• New technology
• Litigation
• Legislation

For more details on Harrington’s mantra or his list of good, bad and neutral aspects of technology and the law, or to explore some reasons why people break the law, check out Harrington’s full presentation.  Even if you’re not that interested in the topics, you will be entertained.

Deciding the Fate of Music

A follow-up from the pre-Easter Tenenbaum fair use defense post - a further look at why a court should not address the issue (again) of whether or not file sharing is fair use.  As mentioned in the previous post, legal free music is coming.  A court decision ruling file sharing as fair use would only hasten the inevitable.  This hurrying is unnecessary and would be detrimental to the progress already being made.

Let the People Do It

There are companies in the industry currently working on how to make the music industry work best for everyone, including the fans and artists.   Let the industry play it out a little while longer and figure out where its going.  Forcing the industry's hand never proves good; it freaks out and reacts without taking time to figure out if its actions make sense.   

Allowing the industry players, the musicians, the experts and the fans (yes, they have a say now, too - the musicians are listening) to hammer out a solution that works for all will produce a much better result than a court handing down a decision from on high.  Allowing those who have a stake in the matter to develop a solution fosters more cooperation.  A value our democratic society is supposed to value.  Cooperation in an industry that desperately needs to rebuild its relationship with the rest of us.  It also gives those who participate a deeper connection to the outcome; they find value in the product of their creation and are more likely to support it.

Labels aren't as Clueless as We Think

The Leadership Music Digital Summit is winding up today at Belmont University in Nashville.  This Ipper had the good fortune to attend many of the panel sessions.  Obviously, two days of digital music discussions produces lots of bloggable material, but today we'll discuss only one thing, the most encouraging part of Tuesday: the Keynote address by Rio Caraeff of Universal Music Group.

When we hear about record labels, especially the big four, we hear the same things over and over again: they're clueless, they can't keep up with the technology changes, they don't understand their audiences, they're evil, etc.  Today, Mr. Caraeff showed us just how wrong those statements are.  (Well, except the last one, jury's still out on that.) 

Caraeff is the head of eLabs at Universal, a team that focus on all aspects of digital development and music: cell phones, downloads, streams, videos, you name it.  They are not focused on content, but on the context.  Music used to be an experience, now it is data.  To Caraeff and Universal, this is a problem.  Where's the value if the product you buy is exactly the same as the product you can download for free?

So, they're working, and they're working hard, to bring back the experiential aspects of music.  The traditional album, with all its neat cover packaging and fancy inserts, is dead.  But, Caraeff explained, Universal's eLabs is working on creating a new type of packaging for digital downloads (and they aren't talking DRM).  Packaging that connects the listener to the music like the old album covers used to do.  And, one of the best parts, they are focused on using open technology, no proprietary software.

Caraeff didn't go into exactly what this new packaging will look like.  They might not even know yet.   But, that doesn't matter.  The encouraging part here is that Universal recognizes the changes in the industry; they're working on solutions; they are innovating, and innovating with a focus on the fans.  They know that access is now more important to consumers than possession.  (Caraeff expects music to be all cloud-source in about 5 years, rather than mp3 downloads.) 

Universal is not sitting back and relying on RIAA lawsuits, or simply trying to hold out until all their artists are signed under 360-deals.  As Caraeff put it, both the artist and the fans are the customers.  Universal's eLabs is focused on creating a new model that benefits all their customers.  And the simple fact that they're trying, that puts a smile on my face.

Part III: Developing Decent Digital Distribution Solutions

Last month, we did a follow-up to a November post discussing a class at Vanderbilt University in which class participants were working in groups to develop solutions for dealing with illegal digital downloads.  In the follow-up, we looked at Group One's solution and most of Group Two's solution.  (Nigerian internet prevented any further viewing of the class presentations.)  We now bring you the finale, Group Three's solution.

This ipper will admit that she tends to be a little cynical when it comes to dealing with music downloads and trying to "fix" the current situation.  That being said, if this summary seems too critical, our readers may wish to check out Group Three's solution for themselves.  (You can watch the entire class' presentations here.)

Group 3

Group Three presented a program that included many things already tried or currently being tried.  Their program seemed like something that would garner a lot of support from the RIAA, very little support from the Lessig-wing, and some criticism from the EFF.

Before getting into the detail of their solution, it must first be noted that the group did say they want to encourage and free up music for fair use.  They are not trying to fight small infringements that should be protected by fair use, but rather address the large-scale infringement that hurts the music industry.  The group also pointed out, in passing, that with the increased ease of reaching consumers presented by digital distribution, musicians may not need record labels in the future.  (Isn't that exactly what the record labels are afraid of?) 

The group then went on to explain that their way of address this large scale infringement is top-down legislation with tighter restrictions on music.  As they explained it, "it's the government's responsibility to protect its creative population."  Their suggestions: crippling peer-to-peer (P2P) networks, stronger DRM protection,  and increased copyright education in schools.

Restructuring Peer-to-Peer Networks

P2P networks would be reverted back to a former version of themselves, available only through certain organizations such as universities or employers.  All users would be required to register with the network and the network would be responsible for how the users used the networks.  Networks would be notified if users conducted illegal file sharing on the network.  The networks would then be required to block the users, sort of like the developing program between the RIAA and ISP providers that would slow down or shut off the internet of those using it to infringe copyright.  As the group put it, consumers would be "pressured into using P2P networks only for legal activity."

One stakeholder in attendance at the class' presentation suggested the book, The Spider and the Starfish by Ori Brafman and Rod A. Beckstrom.  He explained to the group that this book does a great job of outlining why P2P can not be controlled in the way suggested by the group.  The group suggested that the reason P2P cannot be controlled is because the laws do not support such control.  To fix the problem, the group said, "regulate it more," give the government more "freedom" (the group's word) to track P2P and go after people who are using P2P for illegal purposes.  Privacy issues anyone?  How long before the EFF is all over this proposed legislation?

Adjusting DRM

The group did not just advocate strengthening DRM; they also advocated reducing it.  Sound like a paradox?  What they suggested was a tiered structure in which consumers can choose a price level for their downloads.  The higher the price, the less DRM protections, the lower the price, the more DRM protections.  It's sort of a different take on pay-per-use.  The group explained that they want the consumers to be able to use the media in the way it was meant to be used, listened to, watched, etc, but not change it or manipulate it.  More of what Lessig would call Read/Only art and less Read/Write.  (Some sure-fire opponents to this manner of using art here and here.)

The group explained that the DRM would not stop consumers from doing anything that would constitute fair use, and used putting an i-tunes song on a cd for a friend as an example.  (We'll skip the issue some groups might have with whether or not that's fair use.)  How will the computer/software/DRM know that the user is making a cd for a friend and not a cd to sell?  How will it know that the way in which that consumer is using the track would constitute a parody or a de minimums use?  In short, how can the DRM be programmed to decide if the consumer is using the file in a way that would constitute fair use?

Increased Education

The last section of the group's program was increased copyright education in schools and in the community.

In Schools

This suggestion was very similar to one made by Group One in their presentation.  Start teaching children at a young age, in elementary school, about the evils of illegal downloading and the piracy aspects of copyright law.  As the children get older, bring in more details of the law and increase the students' understanding of copyright.  Group Three got a little more specific and suggested including actual copyright cases in this instruction so that students can see what uses are and are not allowed.

The Community - Rock the Schools

The community part of the education would come in a series of concerts the group titled "Rock the Schools."  They described this concert series as similar to Live Aid, raising both awareness of the evils of copyright infringement and money for copyright education in schools.  The concert would include popular musicians, industry stakeholders like the RIAA, politicians and other important public figures.  (Creatively demonstrated in the group's power point presentation by some neat photo remixes.)  The concert series would raise money through ticket sales, donations, merchandise, at home pledges and sale of the concert on itunes.   How much could actually be raised in donations is questionable. 

Wrap-up

Overall, there's some doubt as to the effectiveness of this program.  There's already a lot of backlash towards restrictive DRMs, increased regulation brings in a lot of other legal issues.  Education is being attempted and may show results in the future as norms towards downloading change.  As for Rock the Schools, it's very likely that more people consider funding AIDS research or medication for poverty-stricken children as a more worthy cause than protecting millionaires from copyright infringement.  (But as it says above: cynical author here.)

Following the French?

Earlier this month, the American Bar Association Journal reported in a little article that the RIAA is going to stop randomly suing people for illegal music downloading.  Seems the RIAA finally realized that tactic was not producing the desired results and getting them extra problems.  This is good news.  However, the new approach is not without its own problems.

"The RIAA now plans a more practical enforcement effort concerning illegal downloads," the article explains.  And just what is this more practical enforcement?

"With the help of Internet service providers, those who repeatedly download music illegally and ignore ISP warnings are expected to have their Internet service first slowed down and then stopped entirely..."

That's practical?!  In a country that historically places such a high value on freedom of speech, independence and privacy, in a society that revolves around technology, this "practical" solution is opening several very large cans of worms.

As it turns out, the solution may not be quite as draconian as the quote makes it sound.  According to the Wall Street Journal, the new plan is actually a series of agreements between the RIAA and different ISP providers.  The deal is that the RIAA will stop suing consumers and the ISP providers will start contacting customers who appear to be illegally uploading copyright protected material.  If the customers ignore the warnings, the ISP providers can slow down and eventually cut-off the internet service.

The IPKat reported some months ago on a similar plan in France.  In late October, the French Senate approved a law that would cut off the internet service of people who illegally download copyright protected material.  Under the French model, internet access revocation is the final out in a three-strikes law.  Strike one: warning email.  Strike two: warning snail mail letter.  Strike three: the dark ages for an entire year.

In general, people seem to like the idea of receiving warnings and a chance to stop infringing behavior better than lawsuits.  However, many have also expressed some concerns.  French Senator Retailleau decried cutting off internet as discriminatory.  He described internet access as an "essential commodity" and its removal as "traumatic."  Readers of IPKat also commented on the variety of privacy issues raised by this method of fighting infringement.

Groups like the Electronic Frontier Foundation and Public Knowledge express similar concerns about the American plan and raise some others.  The president of Public Knowledge is worried about the due process of the system, stating, "we want to make certain that customers are not cut off from their Internet service or have their service altered solely on the basis of a claim by a copyright holder that file sharing is taking place."  The EFF points out that the punishment here seems to greatly outweigh the crime.  Guess Gilbert and Sullivan wouldn't approve.

Some proponents of the new arrangements believe that the warnings given to infringers by their internet providers will be enough to prevent the customers from continuing their illegal behavior.  If this is true, the system is fine because the ISP providers will never need to reach the controversial step of shutting off someone's internet service completely.  But what happens when someone decides to call their bluff?

 

 

Other related links:

Will France Introduce Digital Guillotine in Europe
French Internet Law Clashes with EU Position
RIAA Shuts Down its Lawsuit Machine
Three Strikes, Three Countries: France, Japan and Sweden
RIAA to Stop Suing Music Fans, Cut Them Off Instead
RIAA Confirms It Will Take Piracy Fight to ISPs

Follow-Up to: Developing Decent Digital Distribution Solutions

In our previous post, Developing Decent Digital Distribution Solutions, Ip's What's Up reported about a Vanderbilt University class called "Stealing in Music City" where the students had to develop a new digital distribution system for the music industry.  The three student groups presented their solutions last week Tuesday, December 2nd.  The video of their presentations is now available on YouTube and VUCast.

The video itself is almost an hour long, and Ip's What's Up doubts many of its readers have time to watch the whole thing.  We wanted to summarize the groups' projects for you.  Unfortunately, the Nigerian internet didn't like that plan.  So, we offer you a summary of the first group and most of the second group.  (Our apologies to Group 3.  We are sure you put a lot of effort into your project as well and will report on it as soon as we're able.)

Groups one and two each consisted of three, visibly nervous, first-year students.  It is apparent from their presentations that they learned a lot about copyright and the music industry during their semester and that they put a lot of work into developing their solutions.  We hope their professors are proud of them and will continue the seminar in the future.

Group 1

The first group pulled ideas to improve the music industry from a variety of sources.  They talked about revising the copyright law to make it easier for artists, consumers and labels to understand, particularly the areas relating to ownership, fair use and the public domain.  That's probably good for everyone, except the attorneys.

On the production end, the group adopted the licensing model mentioned by David Byrne in a Wired.com article.  Through the group's version of this model, artists could only license their recordings to a label for a limited time, rather than assigning the entire copyright to the label.  (The label would not be allowed to own any masters.)  The group adopted this plan because they believe labels play an important role in promoting artists but also think artists should have more say in their careers.

On the distribution side, the group incorporated two ideas supported by Professor Michael Bressman.  (Professor Bressman teaches the IP Clinic at Vanderbilt law and visited the undergraduate class as a guest speaker.)  The group suggested an increase in the number of legal online music distribution sites and that these sites should use monthly fees rather than per song payment arrangements.  The group seemed unaware that there are more music download sites than iTunes, but perhaps that was just their example.  [Some music sites: iTunes (the standard), eMusic (which is monthly subscribtions), amazon.com (drm free), napster (the newer, legal version), payplay.fm, puretracks, there are many more.  Note: Some of these will not work outside the US.]

The group also looked at changing social norms, turning illegal downloading into something un-cool instead of something normal.  The ideas here were a bit reminiscent of anti-drug and anti-gang programs (Downloading Abuse Resistance Education?), and made this Ipper feel rather old.  Their suggestion: include internet safety and copyright in the existing elementary school computer classes.  These classes already teach students how to type and use the internet; they should teach how to do it safely and legally.

In addition to incorporating music downloading etiquette into computer classes, the government should also use things like pamphlets and public service announcements to educate people about piracy.  They suggested these tools be a bit less extreme and a bit more honest than the RIAA's versions.

Overall, it seemed the group attempted to address several different aspects of the music downloading issue: the relationships between people in the industry, the availability of legal downloadable music for consumers, and the social norms that still seem to lean towards acceptability for illegal downloading.

Group 2

Group 2 took a different approach and developed a unique system for digital distribution.  They described it as using the technology of file sharing but ensuring artists and labels get paid.  Their system consists of a government run network that sounds sort of like a Facebook for record labels and publishing companies.

Record labels, publishing companies and independent artists with more than twelve songs can sign-up to be part of the network.  They will get their own page that they can design however they'd like.  They can use the page to promote different artists, activities and events, and to offer downloads of their catalogues.  (The reason for the minimum of twelve songs has to do with balancing the costs and benefits of the system for independent artists.)

The consumers choose from one of various subscription levels.  Each subscription allows them to share a certain number of files per month, with the platinum level giving them unlimited access.  The prices for these subscriptions are intended to be fairly low in order to shift the economic supply curve: lower cost = more downloads.  It's a little confusing if the "sharing" involves offering tracks already in consumers libraries for upload/download by another, or if it really just means downloading from one of the label/publisher pages.  (This may be clarified later in the group's presentation, if anybody is able to watch the whole thing and can add some clarity to this point, please leave a comment.)

The government is in charge of setting up this network and managing it, as well as acting as a sort of collecting society for all transactions on the network.  The group chose the government to run the network in order to eliminate the cost created by a middle-man like iTunes and because they felt the government would bring a certain neutrality, less focused on profit and more focused on boosting the economy and supporting the industry.

Although similar in some ways to existing on-line stores, their system seems to present some unique ideas.  If it does indeed involve file sharing with a collecting society-type entity tracking, it offers some definite benefits over existing on-line music options, like locating those hard to find remixes.  There would be a lot of details to work out before such a system would be viable (such as ensuring that tracks are properly identified), but it's certainly an interesting idea to ponder.

 

 

{related to digital distribution...]