Wendy Seltzer is leading a lunchtime discussion at the Berkman Center about how copyright works not just as law but as technology policy. Copyright tech has been shaping law and culture, she says. [As always, I’m paraphrasing, missing big chunks, making the elegant clunky, etc.]

She looked recently at the 1995 federal policy statement on the “national information infrastructure” (= da Net). It reads as if the Clinton administration wanted to promote the Internet by protecting “intellectual property.” But it turns out that the Internet has even more value by letting us communicate with one another. Yet, the copyrighted content has been wagging the dog, restricting what and how we can communicate. E.g., the DMCA (which encourages ISPs to take material down), restrictions on fair use, the anti-circumvention laws (including the Broadcast Flag). Laws that give an incentive to create can then become a barrier to communication and access, Wendy says. “So far this limited monopoly is the best way we’ve found to give artists and authors an incentive to create.” We don’t want to return on patronage, she says. The market seems to be the best mechanism. “But this market has its own inefficiencies.” E.g., every computer makes copies (just by visiting a page), so tightening copyright laws can inhibit us unnecessarily, not to mention preventing remixes and mashups that make political points.

While the Internet makes infringements easier, the laws passed in response have given copyright holders new tools to go after infringers, swinging the balance against users. E.g., section 512 of the DMCA says that ISPs should “expeditiously” take down material that someone—anyone—claims infringes. So, ISPs don’t have to examine every piece posted to their system, but the incentive is to err on the side of removing materials.

Q: I’ve heard that YouTube is only taking down potentially infringing clips longer than five minutes. [A quick search on YouTube for “daily show” clips supports this—weak evidence.]

Q: What’s going on with the counter-notice provisions of the DMCA (section 512g) which lets someone whose material was taken down complain.
A: It’s rarely used. Many of the infringement notifications are invalid, and still few people counter-notify. Out of a thousand notices, there were only two counter-notices.

Q: How should the industry respond to the real threat?
A: The data suggest that encrypting songs on iTunes doesn’t stop them from being available unencrypted on filesharing networks immediately, but it does stop people from building their own music players and integrating them. E.g., because DVDs are locked, there’s been no new technology that lets you do more with your DVDs.

Q: The music industry doesn’t care about secure DRM any more. Will that happen to other industries?
Wendy: That’s encouraging.

Wendy hopes artists will insist on having more open licenses of their material.

Q: What should, say, Sony do?
A: Reinvent themselves. They still provide “taste” services. But it’s not the high margin business it used to be. They should pare down to the services they provide that have value.

Q: Isn’t the ease of ripping an argument for stronger IP, so Tower Records can stay in business?
A: Copyright is about protecting the artists, not Tower Records. If the market no longer needs Tower Records…

Q: How about AllofMP3.com?
A: the business model seems to be: “We’re in Russia and will ignore everyone else’s copyright law.”

She says that she thinks the successful sites will be differentiated not by their content but by their navigability, guarantee of quality, etc.

Q: Protecting artists is a good ting. Art is a public good. You mentioned patronage. But in Europe, arts get funded through grants.
A: It’s great to have government support for the arts, but artists shouldn’t be solely dependent on that.

Q: How can the communication side make a claim against the entertainment industry?
A: If citizens demanded it…

Wendy likes subscription models that don’t track the data too closely (for privacy reasons) and that allocate revenues to the artists.

Q: If we were negotiating copyrights with individual artists, what would the DMCA look like?
A: I’m not convinced artists want the DMCA.

Q: But when I listen, the artist would get ten cents…
A: (someone) That’s what Rhapsody does now.

Wendy: That’s what DMX does. Would artists give their rights over to bulk licensing agencies? Do what you will with the music and we’ll figure out who to give the money to? If the agency was transparent enough…

[Tags: copyright drm digital_rights wendy_seltzer music itunes ipod berkman]

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