Ugh. I’ve been ranting about this idea for a while, but now it’s actually come to pass. Thank the folks at RIAA, MPAA, the entertainment industry lobbyists, and their hired guns friends in Congress (ahem, Conyers, Berman, Leahy, Specter, et al) for this criminally inefficient use of government funds during a time of economic crisis. Even George Bush and the Department of Justice tried to avoid passing this one, but to no avail.

Gizmodo and CNet have the story.

Art Brodsky, Communications Director of Public Knowledge has the understated quote: “It would’ve been nice to have something to benefit the public and artists instead of big media companies.”

Sigh. Dream on.

intellectual property, da? (image from Gizmodo)

intellectual property, da? (image from Gizmodo)

Of Lessig and Muxtape

October 14, 2008

Larry Lessig’s WSJ Op-ed “In Defense of Piracy” is quickly making the rounds of inboxes via a few email lists I’m on, suggesting that re-posting it here will not be news to anybody.

What I thought I’d mention in conjunction with Lessig’s piece however, is a link and some thoughts on yet another sad chapter in the entertainment industry’s long brutal fight against creativity and non-traditional business models online.

Former Berkman Intern Zach McCune first brought Muxtape – a site dedicated to facilitate music playlist sharing – to my attention sometime during the summer.

An undergraduate and the victim of an RIAA file-sharing lawsuit, Zach is a grizzled veteran of the copyright wars. He and I agreed that while Muxtape was a beautiful idea, it was only a matter of time before it got mangled by the legal machinery of the music industry.

The truth has turned out to be somehow more complex and twisted than we had ever imagined.

Muxtape (c) 2008, Muxtape LLC

Muxtape (c) 2008, Muxtape LLC

Muxtape founder Justin Ouellette’s September 25 post to the site breaks down the last few months in some detail. Here are the highlights:

  • “In the end, Muxtape’s legality was moot.”
  • “In May I had my first meeting with a major label, Universal Music Group.”
  • “The gentlemen I met at Universal were incredibly receptive and tactful; I didn’t have to sell them on why Muxtape was good for them, they knew it was cool and just wanted to get paid.”
  • “Things were going well. I spent the next two months talking with investors, designing the next phases of the site itself, and supervising the negotiations.”
  • “The first red flag came in August…the talk shifted to things like guaranteed placement and “marketing opportunities.” I was denied the possibility of releasing a mobile version of Muxtape. My flexibility was being constricted.”
  • “…on August 15th, I received…a complaint from the RIAA.”
  • “…on Monday when I wasn’t able to produce the documentation Amazon wanted (or even get someone from the RIAA on the phone), the servers were shut down and I was locked out of the account.”
  • “…the RIAA moves quite autonomously from their label parents and that the understanding I had with them didn’t necessarily carry over.”
  • “And so I made one of the hardest decisions I’ve ever faced: I walked away from the licensing deals. They had become too complex for a site founded on simplicity, too restrictive and hostile to continue to innovate the way I wanted to.”
  • “Muxtape is relaunching as a service exclusively for bands…”
  • “The new Muxtape will allow bands to upload their own music and offer an embeddable player that works anywhere on the web, in addition to the original muxtape format.”

Ouellete’s experience with Muxtape demonstrates that the actions of the RIAA constitute an egregious, anti-competitive abuse of the American legal system. Perhaps the most troubling aspect of the story is the fact that they effectively shut down Ouellete’s business while several of their constituents were in the process of negotiating with him (indeed, the takedown episode looks like a sorry excuse for a bargaining tactic).

When is congress going to stand up to these goons? At the moment, our elected representatives are too busy passing the PRO-IP act, yet another gift of federal enforcement resources to the content industry (against the wishes of the Department of Justice!) at the same time as the US economy struggles to avoid a free-fall.

That didn’t take long.

Declan McCullagh at CNET takes a look at Democratic Vice-Presidential nominee-to-be Joe Biden’s track record on IT issues and finds a great deal lacking.

Historically speaking, Biden favors an extremist vision of intellectual property and anti-privacy enforcement.

McCullagh sums it up in the story’s lede:

By choosing Joe Biden as their vice presidential candidate, the Democrats have selected a politician with a mixed record on technology who has spent most of his Senate career allied with the FBI and copyright holders, who ranks toward the bottom of CNET’s Technology Voters’ Guide, and whose anti-privacy legislation was actually responsible for the creation of PGP.

Yikes.

In the rest of the article, McCullagh focuses on the areas of copyright, online privacy, peer-to-peer networks, and net neutrality, showing how Biden has built a reputation as one of the Democratic Senators most hostile to the the Open Internet and commons-based business models in the music, film, and IT industry. The summary version: Biden is as anti-Internet and anti-innovation as anyone on the left of the aisle.

What this means for an Obama campaign that has promised to implement a progressive information and technology policy agenda predicated on net neutrality and the growth of innovative industries is anybody’s guess.

In the meantime, what I can’t figure out is why Biden does it.

To judge from McCullagh’s claims, Biden’s positions stem from his close ties to the Intelligence community and the FBI. The Delaware Senator has staked his career on being a credible Democratic hawk. He has backed a corresponding “tough on crime” approach across the board.

Funny thing is, his funding base doesn’t seem to reflect this historical favoritism towards the cultural content industry, anti-privacy interests, and other IP-enforcement extremist groups.

According to the campaign finance data maintained by OpenSecrets, Biden’s strongest bases of support have been lawyers, real estate developers, and investment firms based in Delaware, New York, and Philadelphia.

This makes perfect sense given his positions on the powerful Senate Judiciary and Foreign Relations committees (he is currently chair of the latter), both of which oversee massive budget allocations and key legislative decisions on trade, investment, and legal regulation. It also corresponds to Delaware’s historic role as a tax haven for numerous corporations.

To give you a better idea, here’s a graph from OpenSecrets that breaks down Biden’s funding by industry:

Sen. Joseph Biden - Top Donations by Industry (from www.opensecrets.org)

Sen. Joseph Biden - Top Donations by Industry (www.opensecrets.org)

Note how the communications/electronics category is woefully low in comparison to the FIRE and Lawyer/Lobbyist categories. Biden may be a staunch DMCA supporter, but he’s no Howard Berman by any stretch of the imagination.

Instead, Biden’s pattern of knee-jerk support for anti-privacy and anti-Internet regulation suggests a deep-seated misunderstanding of digital technologies and the potential of information networks.

Consistent with McCullagh’s claims, Biden has historically taken advantage of broader fears about terrorism and deviance as justifications for gutting civil liberties as well as freedoms of speech, movement, and organization.

Maybe this is the kind of reputation the Obama campaign believes it needs to appear more hardened and mainstream in the face Barack’s obvious lack of support from foreign affairs and military interests. It also doesn’t hurt that Biden has historically enjoyed such strong backing from elite corporate lawyers, investors, and the FIRE sector – representing a wide swath of the country’s financial elite.

Nevertheless, it’s hard to avoid the writing on the wall following the Biden announcement and Obama’s recent vote in favor of retroactive community for illegal spying and privacy violations by telecommunications firms. We may still be a long way from a U.S. president that is willing to take a progressive stance on the Open Net.

Following up on its more industry-centric work in the Wireless Innovation Alliance, Google is heading up an effort to solicit signatures via a new site called Free the Airwaves intended to generate public pressure on the FCC to open up more wireless spectrum.

If the US is ever going to escape the current failed market duopoly for network service provision and carriage, efforts like this need to succeed.

Who opposes opening spectrum to increase competition, innovation, and access? Incumbent telecommunications firms with dominant market shares and well-entrenched advantages over their competitors.

Here’s the National Association of Broadcasters’ (NAB) FUD-spewing website featuring “Wally the Unlicensed Wireless Device.”

Once you untangle the actual ideas from the pretty pictures and high-flown rhetoric, the NAB’s call to retain strict oligopolistic control over the airwaves is based on the underlying assumption that “networks need an owner” – some firm(s) to be accountable for its failure, maintenance, and improvement.

Problem is, the Internet as a whole has already de-bunked this half-baked argument. Well-designed and implemented protocols (or standards) can overcome the hypothetical tragedies of the networking commons. Governments and large private firms play a crucial role in preserving the Internet, but one of the reasons ithe Internet has spawned so much creativity, wealth, and participation is that the underlying protocols are basically device-agnostic (although U.S. ISP’s like Comcast are trying to undermine that too). The Internet does not care if you are using a desktop, laptop, PDA, etc or if you are sending an email, a chat message, voice data, pictures, music or movies.

Returning to the wireless spectrum case, though, it’s important to note that existing government concessions to large telecommunications firms in the U.S. have stifled broadband speeds and access as well as the growth of wireless communications as a whole.

This market needs more competition, not less. The sooner the FCC (and other firms in this market) can recognize that, the better.

Sign the petition or visit the site to take action.

(H/T JW, SS, and other Berkman Center Fellows)

Update: Check out Lessig’s video contribution to the Free the Airwaves campaign – he elaborates further on the idea that the history of innovation on the Internet provides a useful example for thinking about the future of spectrum.

Ned Gulley (Mathworks) and Karim Lakhani (Harvard Business School) presented some forthcoming work on Collaborative Innovation today at Harvard’s Berkman Center for Internet and Society.

The paper builds on Ned’s work at Mathworks developing collaborative programming competitions for the MATLAB community. Adopting “the perspective of the code” it analyzes what happens when you set a horde of geeks loose on a fun, challenging programming problem in a networked collaborative environment.

To sum up my reactions really briefly, I thought the paper was an exciting step in the process of looking under the hood of collaborative knowledge production. Gulley and Lakhani argue that as programmers improved the performance of code relative to a discreet problem, they did so through “tweaks” and “leaps.”

“Tweaks” represent small refinements that improve the performance of existing code; “Leaps” represent more sudden and large-scale advances in performance (usually driven by introducing a more substantive or extensive change in the code).

Tweakers and Leapers benefit from each other’s work, but the biggest beneficiary of their combined interactions was the code itself. Within one week of the competitions, thousands of eyeballs had produced startling solutions to complex algorithmic problems.

There’s a lot more to be learned from this kind of work – especially from the sort of experimental data created in the setting of these sort of large-scale collaborative games. In particular, I’m interested in thinking about how programmers (whether as individuals or communities) adapted to the challenges over time. It seems like it might be possible to design a game that could test whether efficient collaborative problem solving techniques “evolved” over the course of the game(s). In addition, it would be fascinating to test the results of this kind of collaboration against those produced by more hierarchical or individuated models of innovative work.

Look for links to the soon-to-be-published version of the paper on the “publications” section of Karim’s HBS faculty page.

In the meantime, I’m told that video and audio of today’s presentation should be available on the Berkman Center’s “interactive section” by tomorrow afternoon at the latest.

Does anyone have any?

Obviously, there are a slew of industry-sponsored studies that tell us how much profit is lost through trademark and copyright infringements (all of them employing questionable methods and un-rigorous theories at best).

There are also numerous press-releases like this one, demonstrating that IPR police can bring down those evil counterfeiters.

But what about a peer-reviewed empirical study that actually supports the hypothesis that punishment is the best way to deal with unauthorized reproduction and use of intangible assets?

I can’t think of any.

Meanwhile, there are a number of studies demonstrating the benefits of opening up knowledge-based stuff in order to enable innovation and profits (PDF).

Seems like the US congress, courts, private sector firms, and trade officials ought to test their enforcement hypothesis sometime.

Fresh off the presses from Slashdot and Wikileaks: the “discussion paper” on the proposed “Anti-Counterfeiting Trade Agreement” (ACTA) that has circulated among wealthy trademark and copyright owning states (as well as a select group of industry lobbyists) has just reached the public. Here’s the description attached to the document by an anonymous Slashdot reader:

“The proposal includes clauses designed to criminalize the non-profit facilitation of copyrighted information exchange on the Internet, which would also affect transparency sites such as Wikileaks. The Wikileaks document details provisions that would impose strict enforcement of intellectual property rights related to Internet activity and trade in information-based goods. If adopted, the treaty would impose a strong, top-down enforcement regime imposing new cooperation requirements upon Internet service providers, including perfunctory disclosure of customer information, as well as measures restricting the use of online privacy tools.”

All very true. In fact, the implications of the agreement reach even further – threatening the business interests of firms in innovative, knowledge-based sectors of the economy by imposing overly-harsh restrictions and enforcement measures. This would likely exacerbate the chilling effects of existing restrictions that have brought American and European corporations numerous defensive patent suits, bogus trademark infringement claims, etc.

The USTR and its trading partners have no business supporting a proposal like this. ACTA threatens citizens’ rights, businesses interests, and would create unnecessary layers of bureaucracy and state intervention. It should never be signed.

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