iPods for Congress

Jeff Taylor | May 13, 2004

Let's see, 535 times $250, should get free shipping, even a volume discount. Seems like money well spent if it brings us rational copyright laws.

That Rep. John Doolittle (R-Calif.) did not really "get" the issues involved in digital copyright until he bought an iPod shouldn't be that surprising. Staff and interested lobbyists write most complex legislation and members merely sign off on the results. What is surprising is that Doolittle and his allies recognize that their fair use rights as consumers have no place in the world envisioned by movie and recording industry lobbyists.

Comments

|5.13.04 @ 3:42AM|#

oh, great...another set of assholes with those fucking white earbuds.

|5.13.04 @ 3:43AM|#

But Jeff, if we weaken the DMCA, then everybody will put every movie they rent on their webservers and P2P networks and we'll have unlimited sharing^H^H^H^H^H^H^Htheft. No one will pay to see a movie ever again and Hollywood will go broke. Then we won't have any new movies to watch any more. Is that what you want?

I could be wrong :-)

Warren|5.13.04 @ 3:55AM|#

What is surprising is that Doolittle and his allies recognize that their fair use rights as consumers have no place in the world envisioned by movie and recording industry lobbyists.

What surprises me, is that a congressman figured out how to use an iPod.

Phil|5.13.04 @ 3:55AM|#

Several weeks ago, another blog linked to an interview with Jack Valenti in which he proved utterly clueless about the technological issues in question here. Best exchange:

TT: No, you said four years ago that people under Linux should use one of these licensed players that would be available soon. They�re still not available -- it�s been four years.

JV: Well why aren�t they available? I don�t know, because I don�t make Linux machines.

Let me put it in my simple terms. If you take something that doesn�t belong to you, that�s wrong. Number two, if you design your own machine, you can�t fuss at people, because you�re one of just a few. How many Linux users are there?

TT: About two million.

JV: Well, I can�t believe there�s not any -- there must be a reason for... Let me find out about that. You bring up an interesting question -- I don�t know the answer to that... Well, you�re telling me a lot of things I don�t know.

TT: Okay. Well, how can we have this dialogue?

JV: Well, we�re having it right now. I want to try to find out the point you make on why are there no Linux licensed players. There must be a reason -- there has to be a reason. I don�t know.

Phil|5.13.04 @ 3:57AM|#

Several weeks ago, another blog linked to an interview with Jack Valenti in which he proved utterly clueless about the technological issues in question here. Best exchange:

TT: No, you said four years ago that people under Linux should use one of these licensed players that would be available soon. They�re still not available -- it�s been four years.

JV: Well why aren�t they available? I don�t know, because I don�t make Linux machines.

Let me put it in my simple terms. If you take something that doesn�t belong to you, that�s wrong. Number two, if you design your own machine, you can�t fuss at people, because you�re one of just a few. How many Linux users are there?

TT: About two million.

JV: Well, I can�t believe there�s not any -- there must be a reason for... Let me find out about that. You bring up an interesting question -- I don�t know the answer to that... Well, you�re telling me a lot of things I don�t know.

TT: Okay. Well, how can we have this dialogue?

JV: Well, we�re having it right now. I want to try to find out the point you make on why are there no Linux licensed players. There must be a reason -- there has to be a reason. I don�t know.

Phil|5.13.04 @ 3:57AM|#

Several weeks ago, another blog linked to an interview with Jack Valenti in which he proved utterly clueless about the technological issues in question here. Best exchange:

TT: No, you said four years ago that people under Linux should use one of these licensed players that would be available soon. They�re still not available -- it�s been four years.

JV: Well why aren�t they available? I don�t know, because I don�t make Linux machines.

Let me put it in my simple terms. If you take something that doesn�t belong to you, that�s wrong. Number two, if you design your own machine, you can�t fuss at people, because you�re one of just a few. How many Linux users are there?

TT: About two million.

JV: Well, I can�t believe there�s not any -- there must be a reason for... Let me find out about that. You bring up an interesting question -- I don�t know the answer to that... Well, you�re telling me a lot of things I don�t know.

TT: Okay. Well, how can we have this dialogue?

JV: Well, we�re having it right now. I want to try to find out the point you make on why are there no Linux licensed players. There must be a reason -- there has to be a reason. I don�t know.

|5.13.04 @ 4:03AM|#

Phil, slow down on the post button.

|5.13.04 @ 4:09AM|#

Is it just me or, until they were forced to sue their own customers, was the RIAA trying to criminalize everybody else except actual pirates? MP3.com, the DMCA, etc., do not really address kids trading MP3s. Only the lawsuits do.

Oh well, as a childless professional I have tons of disposable money that I could be spending on them, but they seem determined to convince me that buying their product is a bad use of my money, because I won't be able to do much with it once I purchase it. So be it, I guess that's more money to the travel and food industry.

|5.13.04 @ 4:21AM|#

Eventually the RIAA would like to charge you every time you even remember a song. And the MPAA would like to charge you for each DVD you rent based on how many people watch the movie with you. They want money for each impression, dammit! If you can't charge for each impression, it is truly impossible to protect creative property.

|5.13.04 @ 4:30AM|#

The iPod's great; the earbuds aren't. Get an after-market set of 'phones.

|5.13.04 @ 4:45AM|#

jc,

Yes, and if people don't get paid in cash for their creative work, they won't create. Also, we need to make sure the RIAA and MPAA get their cut of that payment.

|5.13.04 @ 5:06AM|#

Er... Jack Valenti doesn't need to know a whit about technology to know that copyright infringement is wrong.

Just because technology continues to grow and change doesn't turn the basic fundamental into some gray, fluid area. A copyright holder maintains exclusive rights to distribute his work. Period. People can invent all the gizmos and codecs and file-sharing programs they want -- for which we should all celebrate mankind's unique brain power -- but none of it suddenly invalidates the essential right-and-wrong of the matter. Practical doesn't magically override philosophical when it comes to such matters.

The continuing intellectual sloppiness on this topic displayed by Reason and many of its readers has been dismaying to watch.

Go ahead, let's have the droning litany of "rebuttals": The record industry is the "buggy whip manufacturer of the 21st century." Copyright terms are "too long." "Fair use" trumps all. It's "sharing," not piracy. Record companies "screw" artists. Ad nauseam. And, of course, nauseatingly irrelevant. But the digital crusaders will be content to lob them out there anyway. (Unless this very paragraph creates a self-consciousness that preempts it.)

Disappointing, too, to see the otherwise sharp Jeff Taylor refer to "fair use rights." No such thing exists. There is no fair use "right." Fair use is merely a restriction on a restriction of rights. It is simply a potential available defense in the case of an infringement claim.

|5.13.04 @ 5:30AM|#

Sam: Who grants a creator that "copyright"? It seems such rights are a sociopolitical convention that has served quite well to foster increasing amounts of intellectual property. To claim that using the work of another without compensating that creator is always, unchangingly morally wrong feels like a stretch. There may be no "right" and "wrong" outside of what we agree upon. As the opinions of some included in the society change, it seems worthwhile to discuss what we will accept, and why. Being part of that discussion requires some familiarity with the ideas/technology that may have caused a change in perception. Such knowledge becomes more important when considering changing (either extending or rescinding) the regime of rights a society has chosen to live under.

|5.13.04 @ 5:38AM|#

One thing that I liked right off the bat about my junior Senator, Norm Coleman (R-MN) is that he got this right away, probably because he stole a coupla dylan tunes off Napster or Kazaa or something. He's been one of the few people on capital hill that knows what the hell he's talking about. You won't need to spend the $250 on him.

Phil|5.13.04 @ 5:52AM|#

Jack Valenti doesn't need to know a whit about technology to know that copyright infringement is wrong.

No, he needs to know a whit about technology to know that buying or renting a DVD and playing it on your own fucking computer does not become piracy or copyright infringement just because you run Linux instead of Windows or MacOS, no matter how badly the MPAA would like it to be so.

Mo|5.13.04 @ 6:15AM|#

Sam,
It's less because of a greater good than because I bought the damn thing. Why should I run MacOS or Windows to play a DVD I purchased from you legally? If I purchase a CD and want to make a copy to play in my car or to listen to to keep my CDs in better shape, then why does the RIAA care? I paid them for the damn thing. I can't even use my DVDs outside the country. If it's fine and dandy for the RIAA to use technology to limit distribution of a product you bought the right for, why should it be wrong for me to use technology to use said product. Keep in mind I am PAYING for the movie or CD.

|5.13.04 @ 6:22AM|#

Why can't I make copies for my own personal use? So what if I want to make 10000 copies?

How do you feel about sampling from a song to use in your song?

What about a dj who remixes 2 or more songs together to create something new?

I have "stolen" songs from the web, but very few (maybe 500MB worth). I generally buy vinyl records, since I'm a dj, so it's not like I would have bought the songs that I have dl'ed had I not done so.

I'll be honest, I'm still on the fence on this whole thing, because I do see the value of being able to "own" your intellectual property, but there is no question that the RIAA and MPAA are the new buggy-whip companies and that they had better innovate or die. And they're insulting their own customers in their death throes.

Still, until I become much more educated on the subject, there's not a whole lot I can add to the discussion. Please continue. :)

|5.13.04 @ 6:53AM|#

Mo,

The idea I've gotten from Sam I Was's argument is that while the CD / DVD is yours, the song / movie is not yours. It is still the copyright holder(s). I'm not sure if that is the same as the creator(s) in his philisophical framework, but I suspect it is because I don't think "rights" are transferable. I'm sure Sam I Was will correct me if I'm wrong, here. I'm not sure that payment has much to do with it, because you've simply paid for the medium (plastic and aluminum that makes up the disk.)

|5.13.04 @ 7:27AM|#

Sam: I cannot agree with your premise that one owns everything they think of. You make what seems like a "natural rights" argument, that all men are endowed by their creator with the inalienable right to have an idea, and then to control (thus profit or pay consequences) anything physical or intellectual which is derived from that idea. To me, that is not a natural inalienable right. Once you tell me your idea, you are no longer the sole owner, and I am inalienably free to adjust my behaviour accordingly. Society may place penalties upon some of my ensuing behaviour, if I do not agree to recognize and compensate you.

Ownership is, I still maintain, a sociopolitical concept, not a moral one.

OTOH-- Maybe we'd be better off if musicians would just sing in their heads rather than out loud where someone might feel sufficiently moved to applaud and retell of the performance. RIAA is an extension of creator egotism. :-)

Phil: I would work it from the other end. A culture becomes richer when works are protected from the public domain for a limited time.

Mo|5.13.04 @ 7:45AM|#

Shawn: There's more to a CD than the plastic and aluminum. There's a bevy of 1s and 0s too. Do I own those? Or is the RIAA going to steal a page from the Onion's playbook and get a patent on those too. :)

In all seriousness, Georgia-Pacific can't tell me what I can do with the paper I buy from them. If I want to write my anti-GP manifesto on it, it's my paper and they can't stop me (nor should they be able to). If the RIAA doesn't want people to use the music they buy in the way they wish (I'm not talking about theft or redistribution, but legitimate uses) than they shouldn't sell the songs.

This sort of PR only leads itself to people having no qualms about MP3 downloads (yes, I know it's bad, bad, bad). If our government examines the "root causes of terrorism" even though things like the beheading and 911 show that these are bad, bad people, don't you think it would be wise for the RIAA to see why they're pissing of their biggest customers?

|5.14.04 @ 1:16AM|#

Mo,

There's more to a CD than the plastic and aluminum. There's a bevy of 1s and 0s too.

Well, to be a bit more precise (no pun intended), there are pits arranged in a very specific pattern.

...Or is the RIAA going to ... get a patent on those too.

Sadly, I'm only half joking when I say that if the RIAA could patent the encoding scheme, they would.

I'm a computer programmer. I have some old computers that I still turn on and work with occasionally. I (used to) have a game called Rescue Raiders for the Apple II, but the copy protected disk it was on finally crapped out (after 17 years.) Now, if I want to play Rescue Raiders again, my options are quite limited. I could try searching for it on E-Bay (or some other online site) and pay for it again, or I can rewrite it myself. Bleaahhhh. It is now also becoming apparent that CDs are not as permanent as they once were thought to be. But again, under Sam I Was's philosophical framework, I'm not allowed to make backups of any of the games that I currently have, because it is morally wrong, and I am illegally copying (stealing / pirating) someone else's work. But hell, since unauthorized copying is the same as kidnapping and murder on the high seas (piracy) maybe we should just lock all the downloaders up, or give them a lethal injection, like we would other kidnappers and murderers.

|5.14.04 @ 1:54AM|#

I am willing to stand corrected, but aren't you legally entitled to make "personal-use" copies. Like taping a record for your car stereo ( or burning a CD). The illegality comes when you begin to distribute that CD you bought online, for free. Another example for Mr. Valenti: It's legal to rent/buy that new DVD everybody wants to see, but you are prohibited from charging people to watch it on your new plasma screen.

|5.14.04 @ 10:12AM|#

Yes, you are correct on all counts, MALAK.

jawbreaker|5.14.04 @ 10:17AM|#

Interesting economic analysis of copyright law here:
http://www.winterspeak.com/columns/022002.html

from the post:

"So when someone asks you "who does extending copyright hurt?" you can answer "everyone, to a tune of about $3B a year just for music." You could also add that the economic length of copyright is currently essentially infinite. Any argument for extending copyright further is about control, not incentive to produce, since it's impossible to increase the incentive to produce any more."

|5.14.04 @ 10:58AM|#

Malak - It's also illegal to circumvent the copy protection on the disc in order to make a personal use copy. Thank you DMCA. Even taking a sharpie to the edge of your copy-protected disc (it blacks out the copy-protect part) so that you can play it on your otherwise-incompatable CD player can net you huge fines.

Sam - so an artist should have rights to a song in perpetuity? Back up your convictions. Every time you sing "Happy Birthday," I want you to send a royalty check to the writer. That was a brilliant little ditty, so catchy that you can't go into a reseraunt without hearing it at least once, and the artist who came up with it deserves some compensation damnit.

There is a point at which intellectual property becomes part of the culture, and should pass into public domain. Defining and defending a reasonable time period before that occures is and should remain the function of IP law.

|5.14.04 @ 12:33PM|#

JimInNOVA,
I think you will find that "Happy Birthday" is STILL protected by copyright and will be for about 25 more years. You might also notice that many restaurants alter the song to avoid the entire copyright issue. Only commercial use of the song earns a royalty. The guys singing along to their iPod tunes don't have to pay a royalty, unfortunately, or maybe they would do much less of it.

While I agree that the US copyright laws are far from perfect (especially the seemingly neverending extension of terms), the music and movie industries have legitimate concerns with piracy. Unfortunately, it is virtually impossible to determine when someone is copying for personal use or commercial purposes without extensive investigation and/or suveillance. The solution, with which you may disagree, is to cast a wide net to make copying difficult for any purpose. Rest assured that we will go through many more iterations of copyright laws as technology and the market changes.

Full disclosure: I am an IP attorney, but I deal almost exclusively with patents.

|5.15.04 @ 6:36AM|#

KentInDC,

Thank you for your thoughtful reply to my post, most of which was nothing more than rant.

I don't doubt that foreign countries (e.g. Russia, China, Egypt, India, and Israel) have incredibly high rates of unauthorized copying of software, especially Microsoft products, but I'm not sure even a significant minority would have paid Microsoft's asking price, either. My guess is they simply would have done without, or perhaps written their own software. I really believe the programmers in the more "modern" parts of the former Soviet Union are more technically competent (on average) than American programmers. Free (as in speech, not beer) Software is capable of meeting most needs, with a little extra work, and for some applications, the same or less work. It could provide them with an alternative to Microsoft, Sun, and Oracle until they write their own.

And no, even I don't believe that NO infringer would have paid for the content if the copy were not available. I just don't believe the RIAA is honest with their estimates, either. Especially when they claim losses of billions of dollars. I believe an interesting question to ask is how many people would continue to produce creative works, even if they weren't paid in money for them to be recorded. As an example of people who would, I offer "garage bands" made up of guys who do it to "get chicks," or girl bands who simply "want to get their message out."

<offtopic>
As far as "business method" patents, I have heard of them, mostly as an "another crazy idea" in discussions with software patents. I haven't looked into what they are, but I imagine that most are some way of running a business, or part of a business. In other words, they are patents on ideas. My imagination comes up with "tell people that they have to show up to work on time, and call them at home if they don't show up" as possible patent expiring in 2010. Heck, the way the PTO is set up now, we could probably apply for a patent to some slight change to proof by induction, put some obscure mathematical terms around it, get the patent, and start suing the bejeebus off any publisher of an algebra or calculus textbook that came out after the patent was awarded.

Some of the more common fixes I've heard is to go back to the pre-1975 ideas as to what could be patented, or cut the lifetimes for patents on ideas down. I'm not sure that would help, but heck, could it really hurt?
</offtopic>

|5.15.04 @ 10:25AM|#

KentInDC,

...the music and movie industries have legitimate concerns with piracy.

This point is arguable. The only independent studies I have seen regarding unauthorized copying and the economic effect indicate there is very little economic effect from the copying. The studies that indicate otherwise are funded by the RIAA and MPAA, or are simply self-serving statements by those two groups. Also, I find it not too likely that the people who engage in unauthorized copying would be willing to pay for the content they are copying. If you offer the argument that all the lawsuits that have been filed so far have simply been settled, I would say that it is because most people do not want to have to go to court, and are willing to settle just so they can put the whole incident behind them.

I especially object to your use of the word "piracy." As any one who has actually had to deal with a pirate will tell you, piracy usually involves kidnapping and murder on the high seas. Call the activity what it is: unauthorized copying. As a lawyer, you especially should know the effect word choice has on your arguments. The only harms unauthorized copying causes is to reputation of the original creator if the copier claims the work as their own, and monetary, if the persons receiving the copied work would have otherwise bought the creation.

<rant>
I don't know what kind of function you perform with regard to patents, but one aspect of patents that has me particularly upset is the patenting of software. I can understand a patent on software if that software is part of a larger non-software system. I wonder if lawyers would be so interested in patents if there were an ever-increasing number of patents on the principles employed in legal arguments. Yes, I know that it a supreme court case allowed the patenting of software, but the software in question was simply the control mechanism for a manufacturing system. The management of the U.S. Patent and Trademark Office has interpreted that decision to mean any software algorithm that they don't know about should be granted a patent. Also, a patent examiner's annual review is based quite highly on how many patents she has actually approved. I have also seen independent research that indicates patents on technologies that rely on sequential and complementary innovation do not increase R&D productivity. In fact, with the patent minefield that currently exists in the United States, an independent developer is priced out of the abililty to produce new software because of the need to hire expensive lawyers to check all patents.

Software innovation is directly related to the number of people and/or groups working on it. Because patents exist to "promote the useful sciences and arts," and because software patents have the demonstrated effect of limiting the ability of new developers from producing software, software patents are not producing the effect they were designed for. They really PISS ME OFF!!!!!
</rant>

Ahhhh, I feel better now.

|5.15.04 @ 12:26PM|#

They only need 534 since Rep. Doolittle (oh, what a name for a Congressman! Twain would love it) already has one, presumably the newest and biggest model. Unless they want to get a few extra for Bush, Cheney, et al.

|5.15.04 @ 12:48PM|#

Jack Velenti in 1982 Betamax hoo-hah:
===========
Jack Valenti and MPAA on the VCR - http://cryptome.org/hrcw-hear.htm 1982
"Mr. VALENTI. Absolutely. Absolutely. The bill clearly states unambiguously that all home taping is exempt from copyright infringement."
Q: Do you own a video recorder
"Mr. VALENTI. Yes, sir, I do. I am taking somebody else's copyrighted material without their consent and I know damn well I am infringing. But as far as court action or anything else, I am safe. First, it is not a criminal act. Again, the opposition would tell you video, police, and criminals. They show an astonishing lack of the copyright law. They know good and well that that is not a criminal infringement unless you do it for profit. But on the other hand the plaintiffs [i.e. we] have said they are moving against anybody in the homes. There is no problem, but 1 know and everybody else knows they are infringing."
============

I do regard downloading Ms. Spear's latest hit as theft. I also regard the DMCA as constraint of trade because I cannot play an Australian DVD without breaking the DMCA by bypassing "region encoding". And yes, like Mr. Valenti recording off the air broadcasts for time-shifting, I know it is technically illegal.

But I live in something of a backwater, stores here do not carry CD's of King Oliver (early 20's blues/jazz). Even on the 'Net some things are hard to find or non-existent, for sale. Example, I have an MP3 someone kindly made of a piano roll cut by Scott (not Janis) Joplin. Is this sold and royalties paid in your neck of the woods? How about the Ames Brothers' "The Shady Lady of Shady Lane"? Someone noticed my request for it on a newsgroup, scoured his cellar for his old 45-RPM vinyl and a record player, blew off a couple of decades of dust, and made an MP3 for me. I am actually willing to pay a buck in royalties - but to whom? I am NOT willing to spend thousands of dollars to find out - that is why some movies of the forties cannot be released on VHS or DVD, noone knows who to pay how much in royalties to!

I could go on, too, about extending the copyright for Mickey Nouse's "Steamboat Willie", which could not be made today because it was a rip-off of a film with Buster Keaton...

|5.15.04 @ 12:55PM|#

Shawn,
Here is a link to a discussion of the term "piracy" as it applies to copyrighted material. Sorry if the word offends you, but it is a widely accepted term. The link is to a public library website:

http://www.sannet.gov/public-library/pctech/child/ethics/piracy.shtml

As for the effects of unauthorized copying, I have seen estimates that over 90% of software in the former Soviet Union is copied without permission (I'm trying to refrain from using the term "pirated".). Any estimates of the economic effects of unauthorized copying of copyrighted material are pretty speculative. Who can know the minds of the millions or billions of infringers? Are we to expect the infringers to be any more honest when answering surveys than they were when they illegally copied content? Whether you agree with the law or not, infringers are violating it. Copyright infringement is not a victimless crime - you admitted the potential damage. I don't expect that you will ask me to believe that NO infringer would have paid for the copied material if copying were not an option.

I feel certain you are correct in settlement of the infringement suits. The cost of litigating a patent suit can easily run into the millions of dollars. Copyright cases are probably not quite as expensive, but are probably far more expensive than than any individual being sued is willing and able to bear.

I agree with you concerning software patents. Truly amazing. Are you familiar with "business method" patents? It is amazing (and disgusting) what is being patented in that "technology". I have mostly been involved in patents for medical devices. From what I have seen, there are a lot of questionable patents being issued in all fields. Much of that stems from a huge backlog in the Patent Office and a shortage of qualified people for some technology areas in the Patent Office. You won't find me blindly defending the our present regime of IP laws. There are a lot of issues that need to be worked out by people much more knowledgeable about technology and economics than the folks on Capitol Hill making the decisions. Like most people, I can see lots of problems with things as they are, but don't have many answers.

|5.16.04 @ 1:22AM|#

KentInDC,

<continuing_off_topic>
Thanks SO much for the 6,368,227 reference. Definitely a coffee / milk / water out the nose moment. I was only half-joking about the induction proof patent. And I just heard about a patent being awarded for a self-activated / powered kick in the butt invention on NPR's Wait, Wait, Don't Tell Me show. I seem to remember a Rube Goldberg like device for doing the same thing. Oh, well.
</continuing_off_topic>

|5.16.04 @ 10:11AM|#

Shawn,
If you really want to get worked up, go to uspto.gov and search for US Patent No. 6,368,227. It is a patent for a method of swinging on a swing. It began with a patent attorney teaching his young son about the patent process and ended with a patent actually being granted on a method of swinging from side to side instead of back and forth. I'm sure the father was a little surprised. The examiner apparently couldn't find any documentation for such a method of swinging in "the literature", so he granted the patent. I don't rate most business method patents much higher than this kid's "invention." I guess we need to start searching novels for prior art for some of these "inventions." By the way, if you want to swing from side to side, the inventor is granting free licenses upon request.

|5.16.04 @ 11:32AM|#

And don't forget the Australian patent for the wheel...

Tech|5.19.04 @ 7:57AM|#

As the pace of technological change has quickened, it only reasonable that the length of patent and copyright protection should be correspondingly shortened.

The current terms do not encourage innovation.

Five years should sufficient, ten on the outside.