President Barack Obama and New 91��ɫ Governor Andrew Cuomo each worked very hard to bring about the voluntary agreement that was announced last week among ISPs and rights holders regarding IP education and the new “copyright alert system”.  The independent community was well represented during the negotiations and were also present at the press conference call.

The conference call announcing the new cooperative program was at least as interesting as the announcement itself—because of the kind of questions that the reporters asked.  It was pretty clear who was writing which story, and that they had decided to write that story well before they got on the call.

What was the spin that the reporters wanted to put on the facts?  Big media (preferably RIAA if they could squeeze them in there) is going after innocent users (“” featuring a file photo of the head of RIAA who was not at the press conference).  Neither of those propositions is true, of course, and the whole point of the system is to avoid suing users.  But that was lost for the most part in the rush to crush.

What was most interesting was how unsettled some of the reporters were that tech companies were not staying in the nice neat box that reporters put them in—if the disjointed body language of a conference call can be relied on anything, several reporters, especially Nate Anderson from and David Kravetz from , and to a certain extent all sounded like they felt betrayed by the ISPs.  You can read their reporting and decide for yourself exactly what penance they wish to exact for the offense given.

This produced some odd results: For example, while many reporters talk about The Hurt Locker, it was usually in the same breath as the MPAA and without mentioning that The Hurt Locker was an indie film.  No one had a single question for the indie label or film group presidents.  You have to ask yourself why that is?  Could it be that reporters are so accustomed to making the story about Big Media vs. consumers that they can’t bring themselves to talk about Big Tech vs. independent artists?  (This issue was thoroughly discussed by a variety of artists at the recent in Washington.)

Probably for the same reasons that they could not bring themselves to talk about real people losing real jobs or mentioning the deep support the alert system has with organized labor in the U.S., starting with the American Federation of Musicians, the American Federation of Radio and Television Artists, the Directors Guild of America, the International Alliance of Theatrical and Stage Employees, Nashville Songwriters International, the Screen Actors Guild, and the Songwriters Guild of America—not to mention the AFL-CIO.

I have a that goes over the high points of what the deal is and is not (as well as an ).  (I also published an op-ed on Fierce Telecom a few months ago discussing the same subject.)

Tropes, Memes and Other Fantasies

The reporting on the education center and alert system tends to fall into a few categories ranging from the journalistically admirable to the unfortunately predicable.

Almost all of these categories are set against the background of two rhetorical tropes: “The Copyright Wars” and the “Copyleft”.  The current problems with theft of intellectual property are not limited to copyright and are not wars, no thanks to the inflammatory rhetoric of authors who apparently profit from perpetuating this misapprehension.

By perpetuating the “copyright wars” rhetoric, it allows for all the nomenclature of war to be applied to the argument, chiefly “heroes”, “villains” and “battles”.  This is the kind of fallacious argumentation that they tell you about in freshman composition classes, but yet journalists (especially in the “tech press” such as CNET (“) and even learned treatise authors perpetuate these fallacies.  (Although the best example recently may be “” at Multichannel News.)

By perpetuating the “copyleft” trope, it allows a political spin to be put on the enjoyment of copyright.  I think that even a casual conversation with organized labor who support these measures would put that idea to rest.  Organized labor, and in fact the entertainment business in general, typically supports those on the left wing of the political spectrum and simply do not understand the “copyleft” concept at all.

The Fundamental Disagreement

Not to take anything away from the importance and difficulty of the negotiation, but the formation of the coalition has such a high degree of inevitability that it is probably the least surprising event in the development of the Internet.  If anyone is surprised by the formation of the coalition, it is probably for the same reason they were surprised by the outcome in the Grokster case, the Isohunt case, the Limewire case, the Pirate Bay criminal prosecutions and even going back to Napster.

Perhaps this is because they believe that “sharing” illegal files with millions of their closest friends is fair use.  Which it isn’t, never was and isn’t going to be, at least not in the US (or in Canada or the UK by the look of things).

It should also not be lost on anyone that this coalition came together under the auspices of New 91��ɫ Governor Andrew Cuomo and President Obama.  Government leaders have great opportunities to bring people together, particularly when there is such an obviously one-sided moral argument in favor of jobs and the benefits to the economy from protecting intellectual property.  This is, after all, the ultimate purpose of the Sovereign in the first place.

The Press Buckets

Just the facts

Some of the reporters played it right down the middle, especially the National Journal, and a close second at the .  Just the facts.  Ben Sisaro at the New 91��ɫ Times wrote a genuinely thoughtful article and—unlike almost all of his fellow journalists—actually got sources on the record who were not connected to either side.  Now �ٳ�����’s a concept.

Dissing the Indies

It is very rare for any reporter to take note of anything that the indie labels and film makers have to say about anything.  If you agree with me that many reporters view these stories as a chance to bash the RIAA and MPAA, then you will also understand that any reporter who acknowledges the disproportionate harm visited on (1) songwriters and independent artists, (2) financing independent labels and films (i.e., small business), and (3) the loss of jobs due to piracy will also have to acknowledge that the story is not about “Hollywood” against “the little guy.”  “The little guy” who is being harmed is not the user who steals, it’s the creators who can’t sustain themselves.  If �ٳ�����’s a David and Goliath story anywhere, it’s about Big Tech versus independent artists.

Interesting Questions that Were Not (and never are) Asked

Would ISPs who do not participate in the best practices be more or less likely to be secondarily liable for infringement?

How do ISPs benefit from load balancing or network management from cleaning up Internet pollution?

What kinds of strains on the network are alleviated by the alert system?

What is the ISP’s customer carrying cost on a per gigabyte basis of a user who uploads and downloads?

How much do “normal” users subsidize the bad actors?

If users decide to go elsewhere for their Internet service from an ISP who is not participating, what does that say about the nonparticipating ISP?  How many of those users do you anticipate losing and is it a net economic loss?

Would ISPs be able to lower the monthly access fee or offer new services if network usage declines?

Do copyright alerts also apply to visual artists, e.g., painters, photographers, illustrators, cartoonists?

Anger Management

Again, it was pretty obvious from the press conference and the reporting (e.g., Wired and Ars Technica) that these reporters were determined to write an angry story about termination and conflict, and not about jobs and the value of intellectual property.

Criticism of “Six Strikes”

In their apparent determination to make this a negative story, people who should know better (such as the Washington Post) kept the “three strikes” baseball metaphor going which misses the point that there is no “out” or required termination as part of the alert system.  If users independently violate an ISPs terms of service their account can be terminated anyway—nothing has changed.  And as we learned from YouTube and a couple other cases that tech writers like, you get the safe harbor if you have a repeat infringer policy that is enforced.  So what’s the problem?

While some journalists picked up the narrative from the much criticized report of the Special Rapporteur for the Human Rights Commission that an Internet connection is a “human right”, the report was often mischaracterized as a position of the United Nations—which it is not, because the UN has yet to vote on the issue.  Any such vote would have to square the Rapporteur’s messy, although surely emotionally grounded, view that somehow Internet connectivity trumps the long standing rights of artists protected by many UN documents, starting with the very Universal Declaration of Human Rights that the Rapporteur quotes to support his own views.

Moreover, the report is in all likelihood either tangentially implicated or not implicated at all by the alert system, because it expressly protects email, voice and 911 alerts and never requires termination of a user.  Not even if they fail to pay their bill.

References to “Copyright Cops”

A number of articles used the inflammatory phrase “copyright cops” to define the roll of ISPs as toadies for Big Media (often written by journalists who could easily be characterized as toadies for Bigger Tech).  This kind of inflammatory pejorative is not only demeaning of ISPs, it’s also just not true.  Nothing has changed about the legal standing of rights owners and ISPs, and ISPs clearly had their own reasons for making this deal.

It Won’t “Stop” Piracy

There is an old straw man perpetuated by the Electronic Frontier Foundation that the artists in their struggle against online theft are trying to stop filesharing —so because file sharing has not been “stopped” you may as well give up.  (No thanks to the EFF, by the way, as we saw in the Limewire revelations.)

There has always been a level of piracy in the IP world that people are willing to work with.  There has always been a constant struggle between those who steal and counterfeit and those who do not.  Very often, record stores that were offered titles that pretty clearly looked suspicious would call the rights owners and cooperate in the prosecution of the bad guys.

Did that stop piracy and counterfeiting?  No, but it made it harder to profit from and kept the level of piracy to what could be called a “market clearing” level.  So when we use the term “stop piracy” we all know it doesn’t really mean to reduce piracy to zero.

Which frankly, is true of all crime.  No one realistically thinks that enhanced police patrols, neighborhood watch groups or mandatory sentencing will “stop” all crime.  But it will be clear to criminals that they never know when they could be next and that something bad will happen to them.

What holds society together is not only the threat of punishment—it’s the education process regarding acceptable societal norms and behaviors.  The reason most people obey the law most of the time is that there is a voice in their head that tells them bad behavior is wrong and they should not do it.  That voice is either their mother, father, rabbi, priest, pastor or teacher, whoever their moral teacher was—not necessarily the cops.  If there is one thing that is clear online, those voices are just not being heard by millions of people when they think they can get away with it.

I could not help noticing that the Electronic Frontier Foundation was widely quoted with their usual “rope a dope” litigation oriented strategy that helps their benefactors in the Big Tech community through delay and obfuscation.

While the EFF can mock the efforts of the Obama Administration to protect American jobs and intellectual property, sneering doesn’t get them out of a reckoning for their role in the great harm that has been visited on creators around the world.

As that old “copyright cop” Glaucon suggested in The Republic, if the just person has the ability to be “invisible” or anonymous—and on the Internet no one knows you’re a dog—the just person will begin to act unjustly because they can get away with it.  You may say it’s a simple case of moral hazard, but I wonder if they thought in 380 BC that the same topic would be debated in the 21st Century using technology of the Internet instead of the technology of Gyges’ magical rings?

IP Osgoode:  For more information on this issue, please see Chris Castle's post regarding the on his blog .

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At least regarding the Pirate Party, this is wrong.  The best news that creators have had in years is that the Pirate Party is now in the light of day so that all may hear their message and judge what they stand for.  Mr. Engström, the Pirate Party MEP, has provided a to what we may expect from the Pirate Party in its public oratory in coming months in a blog at the Financial Times.

Mr. Engström describes a class struggle between "big film and record companies" and "creative people" who post "remixes for others to enjoy".  "Big film and record companies" send "notices" (presumably DMCA take down notices) to stop these "remixes" from being made available.  (See also Professor Lessig's Remix.)

Actually, there are a handful of independent songwriters, artists and labels who also send these notices.  Not as many as the "big" companies because the independent creators can't afford to monitor the Internet 24 hours a day, 7 days a week to see who is ripping them off today.  So Mr. Engström sidesteps a fundamental flaw in his argument-it's not just "big" companies who send take down notices.

Where are these "notices" sent?  The examples Mr. Engström gives are Myspace (owned by News Corp.) and YouTube (owned by Google).  That would be the Myspace that was sold for $580 million and YouTube for $1.65 billion-these two companies alone account for over $2 billion of value some, if not all, of which is the content that is being bartered on their networks.

And how much of that money went to the independent songwriters, artists and labels?   They're still waiting.  In reality, Mr. Engström's class warfare argument seems to find much greater purchase for individual creators against technology companies than otherwise. Even so, Myspace and YouTube are legitimate companies trying to be good corporate citizens.  No one at those companies has been convicted of a crime or openly harangued the creative community in an open and notorious manner.  This is not to mention the denial of service attacks and other potential crimes visited upon anyone who sought to bring the Pirate Bay to justice.  All denied, all strangely coincidental-and all anonymous.

It is astonishing that Mr. Engström does not once mention in one of his first public statements of the Pirate Party's core beliefs the conviction of persons associated with the Pirate Bay for criminal copyright infringement in his home country.  This omission is particularly striking as these convictions were a major electioneering event for the Pirate Party, complete with pictures of Pirate Party organizers waiving huge skull and crossbones flags on public squares.  One might speculate that the timing of the Pirate Bay convictions contributed significantly to the election night success of the Pirate Party.  Indeed, , Leader of the Pirate Party thinks that the Pirate Youth (apparently a youth organization within the Pirate Party) is an exceptionally important organization. The Leader " Sweden's tt news agency [that] the conflict surrounding file-sharing gives Swedish youth a chance to become politically active. 'These citizens have never previously had a significant issue with which to become involved,' he said."

The restrictions that Mr. Engström, the Pirate Youth and the Pirate Bay complain of are largely problems that exist in the Lessig bubble and not otherwise.  Creators generally love to collaborate-just ask them.

But they may also decline. A creator's right to decline is protected by international treaty.  If a creator declines to collaborate or cooperate, that is their human right to do so under the property laws of civilizations that date from the dawn of time, much less the international copyright laws.  It is the lack of respect for those human rights that led to the conviction of the Pirate Bay defendants, that led to the Grokster decision and many others.  Governments "monitor" criminals because the most fundamental role of government is to enforce the laws.  This is the purpose of a government no matter what political philosophy you follow.

Now that Mr. Engström is to take his place in a law-making body, it seems that he would do well to disassociate himself from the violence done to creators by the Pirate Bay defendants and their users.  It is Mr. Engström's version of "online freedom" that threatens culture, not the other way around.

The world is not standing "at a crossroad"-other than the choice of whether we think that culture should respect the rights of individual creators, rights that are enshrined in international intellectual property rights treaties, or whether we think that intellectual property should be collectivized.  To describe the current situation as a "crossroad" gives the Pirate Party too much influence.

We will not face the apocalypse if people have to pay for music, movies and books.  But we might if they don't.  We look forward to hearing more about the course that the Pirate Party would have the world follow-and their well-reasoned theory about why their collectivism should extend solely to intellectual property and not beyond.

The European Parliament is not a Temporary Autonomous Zone as I expect Mr. Engström will discover soon enough.

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On Thursday, May 21, U.S. District Court Judge Marilyn Hall Patel wrapped up hearings on the preliminary injunction she granted in the fall against Real Networks and its "RealDVD" copying software.  And the Real "Facet" DVD copying and storage device that is what the case is arguably "really" about.  (News.com has published a handy précis of the case, "".)

Real didn't help itself with the court by playing a bit fast and loose with the evidence, and only partially won a it for intentional spoliation of evidence.  As the lawyer I fondly think of as the Roy Cohn of Silicon Valley once told me, those who come to court with the white hats usually prevail.  Bad day at Black Rock for Real if that's true.

But there is a larger issue at play in the case that I tried to outline in my San Francisco Chronicle op-ed about the case ""  It is common for dealers in what Stan Liebowitz has called "" to wrap themselves in the flag of "innovation" to protect themselves against those who try to enforce their rights on a theory of "creative destruction".  When my dog was teething, he completely destroyed a sofa while we were out one afternoon-destructive, yes; creative, not so much.

And it is really that simple point that is at issue in the RealDVD case.  Technology isn't innovative just because someone who profits himself from the misfortune of others says it is.  Technology that tramples on the economic liberties and labor value of others in a way that prevents that value chain from sustaining itself is "false innovation" not sustainable innovation.  The difference is whether the innovator is trying to find a way to respect the economic and human rights of creators or whether he is merely engaged in self-enrichment.

To illustrate the difference in thinking, I juxtaposed two quotations, one from Real Networks CEO Rob Glaser and one from Serge Sasseville of Quebecor:

"Innovation is a two-way street. Wrapping yourself in the flag of "innovation" does not excuse you from respecting economic rights or legal accountability online any more than it does offline. Most public companies are beginning to agree with Serge Sasseville of Canadian communications giant Quebecor that public companies answer not only to CEOs, shareholders and creditors, but as 'a good corporate citizen, (we) cannot remain insensitive to the piracy problems affecting the survival of content producers and rights holders.'

Contrast Sasseville's admonition with RealNetworks CEO Rob Glaser, quoted in an Associated Press story on RealDVD: 'If you want to steal, we remind you what the rules are, and we discourage you from doing it, but we're not your nanny.'

The differences [between the philosophy of Quebecor and of Real] are obvious."

It is a shame that a company like Real that has done a great deal right to create sustainable innovation with its music service has so completely exposed a parasitic vein when it comes to motion pictures.  Not surprisingly, late in the preliminary injunction hearing it reached into the bullpen for that old Silicon Valley standby, antitrust.  The studios are colluding to prevent Real from getting its way.  Or something like that.

In case it was overlooked, the same Judge Patel rejected the copyright misuse defense in the Napster case (which was asserted as an affirmative defense to copyright infringement) and her rejection of that defense was upheld by the 9^th Circuit which cited to UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y.), for the principle that "A [copyright holder's] 'exclusive' rights, derived from the Constitution and the Copyright Act, include the right, within broad limits, to curb the development of such a derivative market by refusing to license a copyrighted work or by doing so only on terms the copyright owner finds acceptable." 

Copyright misuse is a cousin of the antitrust claim that Real asserts and is a "Hail Mary's Cousin Martha" kitchen sink, oh why not, addition to litigation against the creative community.  Why anyone thought it was a good idea to bring a claim for which little if any predicate was laid down, the judge had ruled against a similar claim in a similar case in the same circuit, and the defendant was just coming off of sanctions for spoliation of evidence...anyone's guess.

Judge Patel summed it up as reported by News.com: "During in the injunction hearing, one of Real's lawyers suggested that the company was in the right because it helped consumers backup their films. 'It's even more attractive to consumers to get everything for free,' Patel said, in a seemingly sarcastic remark." 

Judge Patel put her finger directly on the false innovation and how to identify it when you see it.

In our digital society, it is important that the law and the courts support sustainable innovation, which inevitably comes back to supporting economic rights and labor value of creators.

Opinions expressed are those of the author and should not be attributed to anyone else.  Copyright 2009 Christian L. Castle.  All Rights Reserved. 

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You've probably heard the expression "the long tail" used by Web 2.0 cognoscenti.  Despite the largely uncritical acceptance the idea received a few years ago, research shows that for artists the "long tail" is the "wrong tale".  But it may inform a way to leverage past marketing investment in "niche" recordings traded on illegal p2p networks but currently not licensed.

It Actually Is About the Hits After All: Enter the Wrong Tale

A few years ago--between Internet crashes--the "long tail" theory surfaced in the technology press.  The theory maintains that hit-driven businesses are obsolete.  What artists should really focus on was not a few things that sold a lot, but a lot of things that sold a little-the "long tail."  Sales would be distributed proportionately in the "long tail" because the Internet allowed niche consumers to buy small quantities of lots of things generating significant revenues for retailers.    

How rightsholders can produce the "more" and cover their margins out of the "less" only troubled rightsholders-particularly with companies like Google pushing the theory before the Crash.  Proponents never thought retailers might run out of things to sell.  (In 2006, this "less is more" theory was spun into a 288 page book called "The Long Tail: Why the Future of Business is Selling Less of More", and was marketed in the UK under the subtitle "Why Endless Choice is Creating Unlimited Demand.") 

The "long tail" theory is now being analyzed critically, starting last year with the comprehensive study of Professor Anita Elberse of the Harvard Business School (" She concluded:

"[T]he [long] tail represents a rapidly increasing number of titles that sell very rarely or never. Rather than bulking up, the tail is becoming much longer and flatter...[T]his is the truth of the long tail.  [Rather than benefiting niche marketers,] digital channels may be further strengthening the position of a select group of winners [,i.e., making online channels even more of a hit-driven business than offline retail]." (My emphasis.)

Another study by Will Page, Chief Economist of PRS for Music (the UK songwriter collecting society), these results and found that for PRS writers, "20% of tracks in our sample...sold at least one copy, and hence, 80% of the tracks sold nothing at all.... you're looking at a 80/0.38% rule [as opposed to the 80/20 rule or Pareto principle] for all the inventory on the digital shelf."  (My emphasis.)

No one can afford to produce competitive new titles for the "long tail" as the production and marketing expense exceed projected revenues.  Few rightsholders can afford the clearance costs for digital exploitation of back catalog, either.  Professor Elberse again identified the problem in her research: "Music companies, for instance, often decline to make old content available online because clearing the rights is too cumbersome [and expensive]." 

Hit driven marketing drives demand.  The problem is that the larger the demand, the more users steal the hits--using "" like Limewire--that they discover through licensed companies like iTunes.  Let's be honest-it's not hard to compete with "free," it's hard to compete with stealing.

Black markets defy measurement, but the explanation for the "wrong tale" phenomenon of zero sold may be simple-the big marketing budgets that drive big hits also drive users to illegal p2p services where they not only download the current hits but also the older back catalog that is unavailable on licensed services.  Downloading current hits is expected, but it is the back catalog losses that are potentially revealing. As Eric Garland (CEO of Big Champagne) , "File sharing communities are the domain of the ["rarities", the] unreleased, the so-called out of print, live tracks, odds and ends"--most of are not available through legitimate channels.

The "long tail" may be discredited, but it stimulates discussion about leveraging back catalog-which is in demand on illegal p2p services. 

Licensing and Monetizing the Wrong Tale

Will Page and Eric Garland have a new study that likely confirms that illegal trades vastly outnumber licensed digital sales.  (Billboard's has a good story on this study).

The problem with measuring black market competition is that most black market content is simply not available in a licensed environment either because it isn't cleared or artists don't know the recordings exist, especially live recordings. 

If artists can't stop illegal uses of their works, they may be able to at least claim ownership to these rarities and make them available commercially (assuming reasonable  quality).  It may be worth developing "best practices" for commercializing these rarities.  Artists, unions, songwriters, producers, record companies and music publishers should hash this out. 

Some key issues:

--claiming but not gaming.  Help artists, songwriters, labels and publishers claim their rights in rarities found on p2p networks, then offer them for sale through legitimate channels; and

--for previously signed artists, pay catalog artists an industry standard rate (and songwriters the statutory rate) for deep catalog tracks not previously cleared for digital so that the recordings (including "out of print") could be offered for sale with minimal clearance cost.

This approach isn't a panacea for piracy, but it could compete with one of the attractions for p2p users.  It is not without risk, but so is doing nothing.  Doing nothing gets to the end of the tail very quickly.

Opinions expressed are those of the author and should not be attributed to anyone else.  Copyright 2009 Christian L. Castle.  All Rights Reserved. 

The post The End of the Tail appeared first on IPOsgoode.

As Kate Lacey correctly notes in her , the Google Books settlement creates what is essentially a single purpose private compulsory licensing regime benefiting only Google-assuming the settlement is approved at the upcoming fairness hearing for which the filing deadline is May 5 if anyone is counting the days.

This is, by the way, the same view attributed to the U.S. Register of Copyright at a recent seminar at Columbia Law School, at least according to various bloggers as no transcript is available.

In the of what may be many amicus briefs opposing the Google Books settlement is in motion (amici must request permission of the presiding judge in order to be able to file their briefs--so interested counsel take note). discusses it on his which should be read regularly by those interested in opposing the settlement.

While I doubt I would agree with Professor Grimmelmann about all creator issues involving copyright and artists' economic rights to their labor value, I think that we about this--the Google Books settlement is an unmitigated disaster for anyone concerned with creativity, fairness, orphan works or competition.

And again--songwriters, music publishers, and anyone taking the trouble to obtain a lyric reprint license and sellers of sheet music take note. There are also some very odd implications of the settlement for international rights holders.  If you have ever published anything including sheet music or lyrics, especially if you have registered the work in the U.S. Copyright Office, it is highly likely that your rights ARE implicated and Google WILL be competing with you if the settlement is approved.

International rights holders, their representatives and their counsel would do well to examine the carefully for both public policy and private interests.

Opinions expressed are those of the author and should not be attributed to anyone else.  Copyright 2009 Christian L. Castle.  All Rights Reserved. 

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If you believe as I do that "voluntary collective licensing" is neither voluntary, collective nor a license, you will be interested in reading "," a very well-reasoned article by Bennett Lincoff.  Bennett is a distinguished member of the music bar, and illuminates several key flaws in the Choruss house of cards.  The article may be of particular interest to Canadians as there are striking similarities between the Electronic Frontier Foundation's "white paper" on voluntary collective licensing, Choruss and the proposal of the Songwriters Association of Canada.

Choruss is a very U.S.-centric idea.  Applying the scheme in the U.S. will be very difficult, but it will be near impossible to accomplish internationally.  Because Choruss has repeatedly said it will not block and filter, there is no way that Choruss can distinguish between U.S. repertoire, French repertoire, Canadian repertoire, or any repertoire.  It will essentially force international rights holders to participate in the scheme whether they like it or not.

I would add one thing to Bennett's article.  We have an agency in the US that licenses sound recordings online.  It's called SoundExchange.  The monies collected (by statute or contract) get paid directly to artists.  It's supervised by a joint board of stakeholders and is under heavy scrutiny.  I have to wonder if the same would happen with the Choruss or if the monies collected by Choruss would be paid to the sound recording copyright owners and applied to unrecouped balances.  This gets you to the same place more or less as Bennett gets to in his questioning of the wisdom of the covenant not to sue, and is an equally likely result.  So even if it turns out that Bennett is wrong in practice (although he is certainly right on the facts and the law), I think that it gets you to the exact same place.

I would also clarify one point that Bennett makes in his article.  One could come away from the piece with the idea that the major labels have never licensed for p2p.  That's not true.  I know because I did the deals.  It was very difficult to get the majors to agree a deal for p2p, but it was impossible to get the p2ps to take a license pre-Grokster and most of them preferred to shut down or become ghost ships rather than take a license post-Grokster, with a couple notable exceptions that are currently in litigation or being prosecuted.  So that opportunity passed.

And here we are.

Opinions expressed are those of the author and should not be attributed to anyone else.  Copyright 2008 Christian L. Castle. 

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Google has reached a settlement of the " brought by the Authors Guild and the Association of American Publishers against Google and several of Google's library business partners in the Google Books enterprise.  (The 300-page settlement agreement has as many twists and turns as the Single Bullet Theory, so is worth a close .)  The settlement has been by the presiding judge, and a final decision is expected in 2009.

Certain of Google's library allowed Google to jump start their online book business by permitting Google to scan large parts of their in-copyright holdings without getting authors' permissions-a whole new gig for .  The plan was that Google would then do what it does best--sell advertising in those books in a variety of formats, thus defeating a traditional revulsion by authors against advertising in books.  Are you searching for ""?  Google can serve ads for White Castle hamburgers in the book's pages online-or something like that ( of the proposed settlement). 

Under the settlement agreement, Google apparently pays itself to build the technology infrastructure for a "registry" to process usage and royalty information on millions of scanned books-better than , hopefully.  This registry is a new U.S.-based non-profit company that could be similar to SOCAN, CSI, the MCPS-PRS Alliance, ASCAP or BMI, a centralized licensing agency issuing permissions in its territory to all licensees on behalf of its members, owned and operated entirely by the writers and publishers.  Of course the Google registry creates a de facto registration requirement that is outside the letter of the Berne Convention and related treaties.

When you sum up Google's domination in search and now potentially in e-Books, the goodies it negotiated for itself in litigation against a far smaller "person", Google's control over the registry data and editorial control over content, the result is that the Google registry will effectively become a new kind of authors' society-a single purpose author's society that grants licenses to one user--Google.  I argue that it is from that calculated, dominant and bargained-for position of control that Google's new problems begin. 

Chris Castle recently wrote an article in The Register, entitled ""

Opinions expressed are those of the author and should not be attributed to anyone else.  Copyright 2008 Christian L. Castle. 

The post In Which Tom Brown Gets Googled, or why the Google Books settlement is a bridge too far appeared first on IPOsgoode.

Ever encounter people who think that illegal downloading can be solved by "turning off" the Internet?  That makes about as much sense as "voluntary collective licensing" or "ISP licensing" (used interchangeably).  You could only think it works if you were unaware of what it takes to account to artists and songwriters online.  .  Rick is the President of the Songwriters Guild of America and knows full well how The Man 2.0 has decimated the vitality of the songwriter community.

The hallmark of "voluntary collective licensing" schemes is that users voluntarily pay $5 a month for all the music they use on a network and copyright owners voluntarily register to get their pro-rata share of that $5.  Each ISP creates their own method of estimating usage and somehow a central clearing house, currently called Choruss, figures all this out.   addresses some of the obvious problems with this approach.

But the elephant in the room is named "Safe Harbor".  When an actor knows they are acting badly and does it anyway, that's what makes them "bad".  Reasonable jurisprudence denies bad actors most legal goodies, such as safe harbors.  This is called "red flag knowledge" in the DMCA cases and bad actors are, of course, denied the DMCA safe harbor. 

So if an actor-say the head of IT for Whitebread U-knew that recordings from a "Clean List" were permitted on their network and that by definition all others were prohibited, Whitebread could either block the prohibited recording or likely waive their red flag and lose the safe harbor.  Losing the safe harbor is important as a matter of public image, if nothing else.  Of course, if Whitebread can distinguish between the Clean List and the Prohibited List, they can count tracks, and if they can count tracks, they don't need to estimate usage.  And if they can count tracks, they can pay the full statutory royalty like everyone else in legitimate business, so there's no need for the paltry $5 a month.

Unless, of course, public policy would permit the university to be indemnified against red flag claims by Choruss-if it's such a great idea, let Choruss executives pledge their homes.  Since Choruss only offers a flimsy "covenant not to sue" in lieu of a proper license, it is unlikely that anyone will take responsibility for potentially infinite claims for copyright infringement from those not on the Clean List.  But The Man 2.0 bets the creator's home, not his own-just like always.

Many Western governments, including the Obama Administration, support ubiquitous broadband as a matter of national policy.  Dissemination of content encourages this policy.  Not surprisingly, ISPs around the world have recently begun working closely with creators to respect their economic freedom and find commercially mature solutions.

Rick Carnes and Chris Castle recently co-wrote an op-ed for Content Agenda, entitled  .

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