Sparks fly over copyright at Tech Policy Summit

Sparks fly over copyright at Tech Policy Summit

Summary: "Copyright in a Converged World" proved a hot topic at Tech Policy Summit '08, as EFF's Fred von Lohmann and TiVo's Matt Zinn took on Patrick Ross of the Copyright Alliance and UCLA Law's Doug Lichtman

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TOPICS: Legal, Amazon, Patents, Piracy
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Sparks fly over copyright at Tech Policy Summit

The group of copyright scholars and advocates gathered Wednesday at the Tech Policy Summit in Hollywood demonstrated that while copyright must function in a converged world, opinions on how it should function are as divergent as ever. The panel (pictured from left to right) consisted of Patrick Ross (Executive Director, Copyright Alliance), Fred von Lohmann (Senior Staff Attorney, EFF), Matt Zinn (VP and general counsel, TiVo), and moderator Doug Lichtman of UCLA Law School.

I. Copyright Policy

The primary bone of contention was the extent to which copyright law does and should leave room for permissionless innovation. Matt Zinn and Fred von Lohmann discussed the benefits of such a system:

Zinn: Fortunately, the Constitution got it right. Copyrights are not absolute rights. TiVo did not have to go to the rightsholders for permission [to build a product that allows flexible use of lawfully acquired copyrighted content]. If they'd had to, there'd be no DVR. With no DVR, there'd be no VOD.

Von Lohmann: In recent years, the law has begun to appreciate the value of organically derived genius, the wisdom of the crowds. The copyright system is doing a surprisingly good joyb of creating rights that leave room for the kind of diverse marketplace [Matt] was just talking about. iTunes, TiVo, iPods, Betamax: all devices that depend or depended on copyrighted works for a large portion of their value, and that's a good thing. Copyright law in its current form seems to trust markets quite a bit. This is not the death of copyright as we know it. In the room between the overreaching desire of rightsholders for control and what the law provides, innovation blooms.

Patrick Ross, while conceding von Lohmann's point that "there's no moral, ethical, or legal right to a business model," sought to reframe the issue, saying it's not about business models, it's about copyright:

Asking and getting permission is a key part of the system. . . . Where you get into a problematic situation is where the rights are being so abused and no legal authority is controlling it.

Picking up on Ross' defense of a permission-based system, Doug Lichtman challenged Matt Zinn on his assertion that TiVo could not have gotten permission had it asked first. He posited that TiVo would have been a value proposition for the television networks, and they would have been willing to partner with TiVo and give back a share of the enhanced value they would realize by meeting the audience demand for such a service. Zinn disagreed:

In Hollywood, it's not just about the money. It's about all the money.

Von Lohmann concurred:

Disruptive innovation does not get blessed in incumbent industries. When the music labels tried it with MusicNet, PressPlay, and all the other companies that are now smoking holes in the industry, it didn't work.

He went on to point out that one reason incumbent industries shun innovation is their reluctance to cannibalize their other businesses: here, sales of videocasettes, DVDs, etc.

At about this point in the discussion, Jay Williams of the MPAA stepped up from the audience to suggest Matt Zinn was being philosophically inconsistent about intellectual property, since TiVo recently won a patent battle with Echostar/Dish Network. "What are the value of those patents? Aren't they barriers to innovation?"

Zinn replied that TiVo goes out of its way to satisfy rightsholders that copyrighted material cannot readily be transferred out of someone's home or to someone else.

It's interminably slow to transfer material from one TiVo box to another in your home, because of all the encryption we're using at the insistence of the rightsholders.

More directly to the point, Fred von Lohmann rejoined that patents are indeed a barrier to innovation "in a market that is characterized by patent thickets. TiVo having one or two patents is not the same thing."

In response to Fred von Lohmann's and Matt Zinn's repeated points about the law's ability to kill innovation when drawn too narrowly, Doug Lichtman suggested that many rightsholder lawsuits are not designed to shut down a particular technology, but rather to get the parties to the table to make a deal. This just underscores von Lohmann's and Zinn's points about chilling infringement. Such tactical lawsuits are legalized extortion, and without "a copyright system that leaves room," such extortion works. von Lohmann made this point as follows:

If there's even a chance there's going to be infringement, there's a gun to your head — even if you don't know the unauthorized material is there. There is no corporate veil in copyright. They can and will sue you personally and come after your house. Statutory damages of $750,000 per infringement apply. It's relatively easy for the plaintiff to get an injunction that takes your product off the market while the lawsuit is pending. As long as we live in a world where the law has a gun to your head if there's any infringement, innovation is killed.

Though Doug Lichtman tried to get Fred von Lohmann and Matt Zinn to buy into the premise that there's a realistic way to filter or legally require filtering of unauthorized copyrighted material, both refused to bite. Per von Lohmann, the DMCA safe harbors recognize the impossibility of accurately guessing, in each instance, what's authorized and what's not:

But for the DMCA safe harbors, there would be no Google, or Yahoo!, or eBay, or Amazon. At least, not as we know them today. Tech companies need Washington. The safe harbors are there to make these companies happen. And where are the companies located? Here, in the U.S. We did a good job of relieving companies of the kind of technological risk involved in guessing.

II. P2P

Fred von Lohmann and Patrick Ross were also, unsurprisingly, miles apart on how to deal with file sharing. Von Lohmann described the EFF's collective licensing approach, pointing out that collective licensing is well established and works well in other contexts (e.g., radio). Ross rejected collective licensing, saying that artists "would be sidelined into oblivion." If you don't have collective licensing, you have lawsuits, and von Lohmann pointed out the RIAA admits its lawsuits aren't paying anybody. Which resulted in this exchange:

Ross: You're talking about civil actions.

Von Lohmann: If 30,000 Americans were in jail, that wouldn't be getting artists paid either.

All in all, it was a fascinating panel, with the participants lining up pretty much as you would expect (though it was difficult to tell precisely when Doug Lichtman was urging his own opinion or just stirring the pot as moderator). Though shifts are in the air — like Sony BMG floating the idea of a blanket license to its entire catalog — there remains a yawning divide in philosophy and approach between the entertainment and technology industries.

Topics: Legal, Amazon, Patents, Piracy

Denise Howell

About Denise Howell

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law.

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6 comments
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  • Like patriotism, "innovation" is the last refuge of scoundrels.

    Whenever government contemplates restrictions in defense of IP rights, the argument that preventing theft inhibits innovation is likely to be heard. Actually, the best way to encourage innovation would be to make activities illegal. The ingenuity used to evade the law has had beneficial side-effects.

    Of course, the companies whose property has been stolen have been both heavy-handed and ineffectual. The RIAA's connection with p2p is approximately the Federal government's relation to speakeasies.

    So, looking at this quote:

    Per von Lohmann, the DMCA safe harbors recognize the impossibility of accurately guessing, in each instance, what?s authorized and what?s not:

    [Quote from Mr. von Lohmann:]

    But for the DMCA safe harbors, there would be no Google, or Yahoo!, or eBay, or Amazon. At least, not as we know them today. Tech companies need Washington. The safe harbors are there to make these companies happen. And where are the companies located? Here, in the U.S. We did a good job of relieving companies of the kind of technological risk involved in guessing.

    [End quote.]

    So it's the government's job to protect entrepreneurs from rights holders. And in fact those entrepreneurs have built their business plans on risky use of IP.

    Do they know that? Okay, Google is blithe about what the companies take and keep, and has the Court cases to prove it. But which of the other companies knows the exhilaration of sailing into a safe harbor while flouting the law?


    I think p2p as we know it today was built and is maintained by the foolishness of the content companies. People were impatient to obtain what they would have paid for, and so were forced to accept content for free.

    But having property gives one the right to be stupid. On balance, I don't think that stealing an industry's main product is a way to encourage the economy.
    Anton Philidor
    • Copyright infringment is NOT STEALING

      Thanks for trying to prevaricate!
      DonRupertBitByte
      • If it's good enough for a Supreme Court Justice...

        His observation was that while the term was not strictly accurate it did describe the situation appropriately.

        That's from the case in which p2p software innovators were told their work was entirely legal unless they built their business on copyright infringement and advertised the fact blatantly and directly encouraged people to infringe.

        That's a good decision. The stupid should be culled for the benefit of the rest (of the p2p software writers).
        Anton Philidor
      • it is a crime

        Many of my fellow attorneys are defending clients against civil and criminal penalties for copyright infringement, depending on how seriously they violate. Why did you think, people everywhere can do it with no consequence at all? It's a form of theft and the belief that it isn't a crime is being circulated by mostly those who download free music.
        dariced@...
        • Is this based on US law?

          Those of you calling downloading of music theft must have a different definition of theft than is used here in the UK. In the UK in order for something to be theft some thing has to be taken "With the intention of permanently depriving the other of it" otherwise it cannot be classed as theft in the UK. Since copying music does not deprive the owner of the music it cannot be classed as theft in the UK no matter how much the BPI wants it to.

          IMHO music companies should spend less time looking at how to sue their customers and more time looking at how to improve their business models to suit their customers. If the did not try to charge the same for downloads as they do for CDs they may get more people willing to pay. Perhaps they should take a long hard look at how much profit they really need to make per sale and consider that if they reduce their per sale profit more people would be willing to buy as the currently feel like they are being ripped off thus profit could well stay very similar to where it is now but they would have to shift more units to make it.
          willpd13
  • RE: Sparks fly over copyright at Tech Policy Summit

    Great reporting, Denise.

    I was in the room when this took place. One of my favorite
    quotes came from Fred von Lohman. Since I failed to have
    my laptop ready, I twittered it instead: <a
    href="http://twitter.com/tanjab/statuses/777653090"> "The legal system has to let dinosaurs die!" </a>
    Tanja Barnes