Papers from BILETA 2010: Scharf, Marsden, Jones and more

The first bunch of papers from last spring’s British & Irish Law, Education & Technology Association (BILETA) conference in Vienna have just appeared in the European Journal of Law and Technology. The EJLT, for those that haven’t come across it yet, is the successor to the long-running Warwick-based Journal of Information, Law & Technology (JILT). The current issue, Volume 1 No. 2, contains revised versions of papers first circulated at the conference.

Of particular interest to me is the paper by Nick Scharf, a doctoral student at the UEA Law School, supervised by Prof. Chris Wadlow with assistance from myself. His paper on Digital Rights Management and Fair Use considers recent developments in relation to DRM in the context of the various legal and technical developments that have brought us to the current position, and he argues that modern DRM is network- rather than just content-based.

I also enjoyed the papers by Marsden (which I saw at the conference) and Jones (which I didn’t). Jones (Intellectual Property Reform for the Internet Generation) looks at current debates in copyright reform and pays particular attention to the actions of and future for the record labels and the recording industry. Marsden (European Law and Regulation of Mobile Net Neutrality) adds to his work on net neutrality more generally by considering the position of mobile (or in US terms ‘wireless’) ISPs regarding the great neutrality debate. Despite the title and the obvious appeal of the neutrality question, it’s also a very interesting take on the general business model and regulatory climate for mobile networks per se.

Self-promotion alert: a paper based on my own BILETA presentation (on computer games) appears shortly in the Entertainment Law Review – I’ve approved the proofs and it’s due out in volume 21(8), between now and the end of the year.

Soul-sellers and svengalis: notes on SABIP’s copyright/contract report

The research commissioned by the Strategic Advisory Board for IP Policy (SABIP) in the UK has become an important part of the IP landscape over the last 18 months.  I don’t know how it’s going to fare in this age of quango-criticism, but right now there are various projects in progress.  One of them that I was particularly interested in was about copyright and contracts. This particular project was led by Martin Kretschmer, director of CIPPM at Bournemouth University and its final report, The Relationship Between Copyright and Contract Law, has now been published.  Here’s the executive summary and the full report, or options to download separate chapters.  It’s made up of three long papers / literature reviews and an overall summary.  The bibliography is – as you might expect – extensive.

It’s a very wide-ranging report.  (And bonus points for the first footnote being to Johnson & Post, an old favourite in cyberlaw).  In particular, it should be noted that one of its significant concerns is the type of non-negotiated agreement that governs the relationship between a provider and a user after the purchase of protected creative material, as well as the more conventional territory of the contractual situation of creators, performers and so on.  I intend on using it as student reading material for IT/Internet law and also for a module we teach on Commercial Aspects of Media Law.

Here are some points that I found particularly interesting or useful, in no particular order.  It’s a very thorough piece of work – although it would have been fun to see what the authors made of the contract/license debate, which is certainly coming to a head in a number of US cases (e.g. Jacobsen v Katzer, now settled), or the EULA issues raised in MDY v Blizzard and the issues highlighted through Amazon’s Orwellian mess.  But this could well have been beyond the tender, so we should turn to my recommendations and highlights, which are (with a bias towards paper 3 on end user / Internet issues given my own interests):

  • Helpful ‘creator profiles’ of two examples (an electronica artist and a children’s book illustrator) (Kretschmer, paper 2, pp. 46-7 of full report)
  • A table on ‘unfair DRM’ (Derclaye & Favale, paper 3, p. 139)
  • An analysis of exceptions in the US and EU, with further discussion on member state transposition in UK, Ireland and Portugal (paper 3, pp. 87-104)
  • A very readable summary of the role of contracts in restricting ‘user freedoms’ (paper 3, pp. 105-108)
  • The wonderfully tantalising comment (after discussion of click-wrap cases in the US) that “rulings by European courts on similar circumstances are still to come” (paper 3, p. 116).  And the footnote to this point discussed the NPG/Wikipedia issue with links from Technollama (Andres Guadamuz) and Francis Davey!
  • An argument about the application of ‘fairness’ criteria to copyright contracts (whether through the removal of the exclusion of copyright from the Unfair Contract Terms Act or otherwise (paper 2, p. 77 and paper 3, pp. 122-124).  [On this, note that BIS is currently consulting on the UK's position regarding fairness in the European directive, informed in particular by the Supreme Court's decision in OFT v Abbey National]
  • A roundup of developments and academic work on collective societies and copyright, highlighting the cost of administration and the ultimate regulatory role of these agreements (Watt, paper 1, pp. 35-37 )

Full report from the SABIP website.

When We Talk About Gikii…

So.  As I said, I only managed to make it to the second day of the fifth edition of Gikii, but it was a very full day, and shows the strength of the concept (there is definitely an emerging Gikii aesthetic!) and the wide range of contributors.  I should say that my immediate impressions and various links are on my Twitter feed, and the tag gikii has lots of other views.  This post has some remarks on my own session, some shorter remarks on the session I chaired, and some even shorter remarks on the final session of the day.  Don’t forget that you can download most of the presentations from both days at this link.

Having arrived from Dublin the night before as part of a triangular journey (Stansted-Dublin, Dublin-Edinburgh, Edinburgh-Stansted), I was first up on Tuesday morning with my own presentation.  This time around, my topic was What We Talk About When We Talk About Google (or WWTAWWTAG as it is in my notes).  The idea for this presentation came from earlier (and as yet, incomplete) work on the Google Books case, and how it seemed to come at a time when Google’s treatment by politicians, NGOs and academics was in a state of flux.  Google is also involved in some of the most controversial media and technology policy issues on the table right now, everything from net neutrality to privacy.  So it seemed interesting to dig a little deeper. My presentation (which you can download here as PDF) was therefore an attempt to explore the question in the title in a number of different ways.  For example, I looked at the ways in which both courts and parliamentarians in the UK refer to Google – and compared that with a sample of news coverage, finding not just some differences (with the parliamentary discussion still focusing on Google as a general resource for search) but also some interesting internal differences within the media (in this sample, the Daily Mail / Mail on Sunday got very upset about Google Street View).  I also illustrated the different faces of Google through various parodies/cartoons produced by others, and talked about the various friends and allies that are found in Google’s public policy activities, and the result in the Viacom case.  I do hope to do some more detailed work on this, as it was more interesting (to me, at least) than I had thought.  Curiously, it also drew quite a lot of good laughs, with Ray Corrigan giving it a joint comedy award.  This is not my usual territory.  I don’t think my students would write ‘stand-up comedian’ on their feedback forms.

Luckily, the following presenter, Trevor Callaghan, had genuine claim to the comedy tag, with a discussion of Google and social networking.  It was a really through and unquestionably unprintable exploration of the topic, made more lively by the use of Prezi and diversions into broader issues of data, identity and privacy.  It’s really interesting how he was able to get a sense of what Facebook’s business and cultural models are, and how they differ from other players often grouped alongside them.  The final presentation in that morning session was another Gikii serial offender, Andrea Matwyshyn.  Her presentation looked at issues of authorised access, with a particular focus on the US Computer Fraud and Abuse Act (CFAA) and similar legislation.  Her key arguments were the divisions between criminal and civil issues (in particular, the role of contracts and terms of service), and she mentioned a number of key US decisions (such as the Lori Drew case and Register.com v Verio) and the problems stemming from then, including a pretty obvious circuit split (e.g. the difference between IAC v Citrin and LVRC v Brekka).  She questioned the purpose of the CFAA and other legislation and whether it was meeting its aims.

The second session had yours truly in the chair, and it included a range of papers on the broad theme of intellectual property:

  • Steven Hetcher, “Conceptual Art, Found Art, Ephemeral Art, and Non-Art: Challenges to Copyright’s Relevance“.  Steven’s talk (from a US point of view) considered the ‘discrimination’ against forms of contemporary art that, being ‘unfixed’, are not within the common concept of copyright law as based on fixation.  In some cases, the work is the process, with no fixed object … although if unfixed art is to be protected, does this raise questions of artistic merit as an alternative mechanism for delimiting the reach of copyright?  With a wide range of slides (including a Damien Hirst shark sighting), there was also time to talk about Christopher Lowry’s work as discussed in Satava v Lowry, a 2003 case.
  • Gaia Bernstein, “Disseminating Technologies“.  This paper was an attempt to go beyond the rhetoric of ‘IP wars’ and to discuss the acceptance and dissemination of new technologies.  It builds on the author’s recently-publisehd work on innovation (e.g. here).  She traced the differences between approaches to technology in the cases of copyright and patent, and the interaction of both with competition.  She put forward an argument that the user’s role was not given the treatment it deserves, and subsequently pointed to a number of situations of market failures where (due to network effects or the importance of time) specific intervention was necessary.  Really interesting stuff, and bonus points for talking about Minitel.
  • Christopher Lever, “Netizen Kane: The Death of Journalism, Artificial Intelligence & Fair Use/Dealing“. The third paper used some very creative metaphors and images that were both botanical and big-screen (Citizen Kane), with an introductory discussion of the future of newspapers and journalism and the relevance of fair use and fair dealing giving way to a critique of the failings of DRM and a thorough analysis of the work of Ozlem Uzuner on digital fingerprinting and unique expression.
  • Chamu Kappuswamy, “Dancing on thin ice – Discussions on traditional cultural expression (TCE) at WIPO”.  The final presentation in a very busy session.  Her presentation provoked a lively online and offline discussion on what constitutes TCE in a British or Scottish context, but also offered some valuable points on differences (even where in apparent agreement) between the approaches of UNESCO and WIPO and between traditional knowledge (often patent-related) and cultural expression (often copyright-related), and the links between international legal efforts regarding TCE, folklore, and intangible heritage.

The afternoon session included an even wider range of presentations. Simon Bradshaw & Hugh Hancock talked about (and created live before our very eyes) the prospect of interesting legal issues pertaining to machinima, suggesting that the ease with which this type of audiovisual work can be created will continue to be a fertile one for legal action and academic analysis (not least the prospect of issues around new provisions in the Crime & Policing Act 2009).  Ren Reynolds (with Melissa de Zwart, who wasn’t able to join us in person) talked about online games, statutory regulation of such in Korea, analogies (and case law) from physical sports like rugby, and the relationship between the rules of the game and other laws and rules, and the contract/license distinction.  The last presentations zoomed out and looked at  developments across disciplines: Abbe Brown (presentation here) reviewed the various issues, forces and actors in Internet governance and international cooperation (highlighting different approaches and parallel debates), while Michael Dizon (presentation here) presented a post-Lessig/(Andrew)Murray analysis of ‘the network is the law’.

Also, we had cake.  And that’s it about Gikii for this year.  Don’t forget to download the presentations

January Futures: Music

This is the first in a series of posts, pointing to some views on the perennial ‘future of’ debates that make up so much of what I read. No intention to be comprehensive or even-handed – these are, borrowing Eoin Purcell’s term, links of interest (at least to me), and I’d be grateful to read other perspectives in the comments.

Anyway, the first is the ‘future of recorded music’, on which I’ve seen three overlapping contributions of late (and have one whimsical remark of my own). By coincidence (or perhaps not), two are by people I have mentioned in past posts (Drummond, Adams) primarily in their capacities as artists rather than analysts, and thus they have been particularly interesting to think about wearing my (slightly more) serious hat.

On Radio 3 last week, Bill Drummond (wiki; latest project, The17) spoke about the end of recorded music (and the continuing life of live music), also answering questions from a studio audience (part of the Free Thinking festival) on a wide range of topics. It was an utterly fascinating talk, well handled by Radio 3, written up reverently in the Guardian, and absolutely a recommended listen. You should be able to listen to it here, including outside the UK, but only until mid-week (if you want to keep it for posterity, you don’t need me to tell you how to do that). I’m not even going to begin to write a summary, as Drummond operates at approximately one new idea per second…

John Adams‘ recent autobiography, Hallelujah Junction : Composing An American Life, includes a useful chapter on technology and music (and reveals that his son introduced him to Aphex Twin – what I wouldn’t give to see that collaboration). Reflecting on the evolution of classical music recordings and also the on-stage use of electronic instruments, Adams highlights the difficulties and opportunities of each new technological wave. He’s critical of some aspects of the use of technology in live performance, but also adamant (sorry) that there are advantages to synthesisers, sound design, amplification, microtonal pitches. (Chapter 10, Machine In The Garden).

The New York Times wrote last month about an intriguing little iPhone / iPod Touch application, Tap Tap Revenge. Essentially Dance Dance Revolution with fingers instead of feet (or Guitar Hero without the guitar), I’ve had it for a few months, and seeing it break through to mainstream attention came as a bit of a surprise, as I hadn’t initially thought about it as a significant development. One thing about it that raises a load of policy issues is how the application is being used as a way to promote new music – as well as the preset songs, new songs (along with various tie-ins and promotions) are made available on a regular basis. I’ve discovered a few bands through it, although the quality is a bit up and down (there’s a new electronica-specific one, Tap Tap Dance, that I’ve yet to try, but is obviously more targeted at a particular audience). One debate I have an interest in is the ‘shelfspace’ one that has been an enduring feature of Canadian broadcasting policy – so for example, Canadian music quotas for pop radio in one era becomes a percentage of available and featured titles in video-on-demand systems. Seeing alternative channels open up like this is an interesting way to revisit those questions. It’s also interesting when you see the difficulties that music retail stores (like poor Zavvi) have encountered.

On a personal note: Apple’s decision to go DRM-free, announced at Macworld (nearly two years after Thoughts On Music), is something I’ve waited for for a while. Despite having used an iPod (and a series of Macs) for a long time, my practice has continued to be purchasing CDs (far too many) and format-shifting, in most cases (which the Gowers Review said should be legal, good news to George W Bush of course). I appreciate I’m not the typical consumer here, having an interest in the legal dimension, but DRM-free iTunes is the kind of thing that will have a real, measurable impact on my own purchasing habits.

Next week: Television

The importance of being exempt

Under the Digital Millennium Copyright Act of 1998 (DMCA), the US copyright statute known for many things including provisions on intermediary liability, bringing US law into line with the ‘new’ WIPO treaties (WCT, WPPT) and more. One of these provisions relates to anti-circumvention, in US law as 17 USC 1201:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

One of the more controversial provisions of US copyright law, justifying by law the enforcement of digital rights (or restrictions) management (DRM) it does however contain some limited exemptions. Some are set out in the text of section 1201 itself, such as one for law enforcement and others (though limited) for certain kinds of research and development (encryption research, reverse engineering, etc). However, further exemptions can be issued by the Library of Congress working with the Copyright Office (according to specified criteria and following a formal ‘rulemaking’ – a much-loved or much-loathed feature of US administrative law!), lasting for three years and requiring re-enactment for each cycle.

The ability to add to the exemptions is an important one, and one that is perhaps quite appropriate to legislation of this nature. Faced with the fool’s choice between writing detailed new legislation for each social or technical need, or writing bland ‘neutral’ legislation that studiously avoids mentioning anything at all, establishing a process that enables the purpose of the legislation (not just ‘the ban’ but ‘the exemptions’ too!) to continue is helpful, and perhaps more importantly, given the difficulty that non-commercial users in particular have in gaining access to the IP legislative process in the US, can be an important deliberative moment and an opportunity to consider the impact of the core provision in question. One possibly troubling aspect is the requirement to reapply in each round – while it’s probably sensible, it does make the development of applications, technologies etc in an exempted area quite a risky one (and I can imagine the response of the bank being asked for a loan by one of those developers…). On balance, though, it’s an approach deserving of some consideration.

In the last round (2006), six categories were declared as exempt from s 1201, ranging from allowing higher education libraries to circumvent copy protection to create classroom materials (though it does amuse me that it is restricted to materials in the library of a “film or media studies department” for use by “media studies or film professors” – leaving high and dry my American colleagues who teach about media in law schools) to allowing ebooks to be accessed by speech-to-text software. Many others were turned down, including some requests for ‘all fair uses’ (unlikely) and making DVDs work on Linux (which is quite a totemic issue when it comes to circumvention).

This time around, a number of submissions (like this one and this one) argue not just for keeping the film-clips-in-the-classroom exemption but for extending it to the entire range of disciplines. There’s in fact a whole load of submissions making a good case for something that really should have been in the legislation to begin with.

The full list of submissions is here, with some discussed at this handy post by Christopher Soghoian, who contributes to one of the most detailed submissions, that relating to the type of online music/video/whatever store ‘vulnerable to similar loss of usage in the event of a shutdown, breakage or obsolescence of the stores’ authenticating servers’ (hello, Google Video)

With thanks to David Weinberger for letting me know that this important day had rolled around once more. Let’s see what comes of it.