:: LawGeek :: Thoughts on Things by Jason Schultz

Intellectual Property Rants, SUV Wrongs, and Random Movie/Media Reviews
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:: Monday, December 22, 2003 ::

Me Blog Pretty Now

Alright, I've finally committed to making a real effort to blog on a regular basis. So I've invested in both a domain name and a spot on typepad. From here on out, you can catch my musings at lawgeek.net or lawgeek.typepad.com/lawgeek/.

:: Jason 8:08:00 PM [+] ::

:: Saturday, December 20, 2003 ::


Nice little
Xmas tree graph from Gallup showing the rise and fall of Bush's approval numbers.

:: Jason 1:41:00 AM [+] ::

:: Thursday, December 18, 2003 ::

Had A Dream

Cory blogs a great sign in reference to Wendy's recent post about the MLK family suing folks for using King's famous "I Have A Dream" speech without a license.

via Boing Boing
:: Jason 8:10:00 AM [+] ::

:: Monday, December 15, 2003 ::

The Network Effects of Creative Commoning: Why Silver Will Eventually Be More Valuable Than Gold

So I went to the Anniversary Party for Creative Commons last night. It was a very cool event, with lots of luminaries from the tech/cyberlaw world in attendance. CC debuted its new flash animation, chronicling its achievements over the last year and previewing what's forthcoming. It's a good flick and provides some real inspiration for changing the current copyright defaults from fear-of-infringing to stuck-on-sharing.

Particularly inspiring was their new effort to create a "sampling license" that allows musicians to release music with a default license that says you can sample the song without having to ask permission, even for commercial purposes, as long as you agree to only use some but not all of the song. It's an ingenious way to create a huge library of songs that are truly Ready-To-Sample without any FUD -- a true lawyer-free zone.

The real challenge, of course, will be to have artists agree to release their works under such a license. Many people have scoffed at CC licenses, arguing that successful bands and songwriters will never give up their full rights in a blanket form because of profit loss.

Yet in the arena of sampling, it's not always necessary to choose the most successful artists. Often all you need is a good beat or three note sequence to fill in behind whatever you're working on. Thus, unlike many other forms of creativity, the identity of the underlying work isn't always as important as its availability or utility.

Enter the brilliance of the CC sampling license. Say you're an up-and-coming artist looking for a backbeat track to sample for your new song. You see two options: (1) a massive library of historically copyrighted works (All Rights Reserved) and (2) a much smaller but growing library of CC licensed works (Some Rights Reserved But Always Ok To Sample).

To access the first option, you have to hire a lawyer ($200/hour minimum), research the clearance rights, negotiate with the copyright owner for a license, sign the agreement, pay the license, and then (assuming you remember what the hell you wanted to do with the sample in the first place), lay down the track. Of course, you could ignore all of this and simply take the track and hope you don't get sued. But as Biz Markie found out, that's not a very safe way to make music or do business.

To access the second option, on the other hand, you simply download the track and go -- rip, mix, burn. No lawyers to pay, no license to negotiate, no time wasted. Free music and instant gratification, the perfect combo. Soft clay for the creative hands.

So what does this mean for the future world of sampling?

Option 1 is like a pot of gold with scorpions in it. Option 2 is like a pot of silver. Each individual piece of Pot 1 is better but also more risky and resource-intensive to acquire. You have to be careful and cautious while you negotiate the gold out of the pot without disturbing the nasties that guard it. Each individual piece of Pot 2 is less valuable, but acquisition and use are fast, efficient, and carefree. Which would you choose?

Many of us will still continue to choose gold, despite the risks, if we have the money and the need. But others will choose silver, especially if they are risk-averse or can't afford to pay or wait for licensing rights to clear. As more and more people choose silver over gold, the value of silver increases. This increases the incentives for artists to supply the silver, knowing that an ever-increasing pool of artists will be sampling from their works.

Things becomes even more interesting if one imports an analysis of network effects into the system. The theory of Network Effects says that certain systems will increase in value proportional to the number of people who use the system. For example, the telephone system is not very good if only one or two people have a phone. But when 100 million people have phones, it's extremely valuable. The Internet, email, and other networks function much the same way. Being able to email one person isn't worth much; being able to email all your friends and colleagues is worth a lot.

Sampling, by all accounts, should also work on these principles. Yet, under the current sampling system, just because one person clears rights to a song for sampling doesn't mean anyone else can. Each negotiation is generally separate, thereby requiring transaction costs for time and attorneys, etc, each time someone wants to use the track.

Under the CC licensing system, however, the more songs you have in the library, the more valuable the library becomes. This is because you know that you can use all the songs you like in any way you like as often as you like. Eventually, with enough songs, musicians will come to value the CC sampling library more because as a whole it represents more value than any particular individual song might represent under the traditional copyright licensing scheme. Add advanced metadata fields and search capabilities and these network effects increase exponentially. Eventually, silver becomes more valuable than gold.

:: Jason 3:06:00 PM [+] ::

Thou shall not steal mine copyrighted works

Donna picked up a great little hoot positing what Godlike Cease and Desist Letters would look like:

"God Considers Smiting Bible Pirates: 'God said that 'spreading the Gospel' was not a valid defense for distributing copyrighted materials. 'Rev. Jackson has published at least 35% of My word electronically, where anyone with an internet connection can download it. Thrice did I call on him to repent; thrice did he ignore me or refer me to the EFF [Electronic Frontier Foundation].''

:: Jason 11:57:00 AM [+] ::

:: Friday, December 12, 2003 ::

More I, Cringely on E-voting

I, Cringely continues to tear e-voting a new one in his weekly column. I don't necessarily agree that the Canadian system is the way to go, but I gotta love his style. Here are my two favorite graphs:

These same people also claim that receipts are bad because printers are unreliable or need to be refilled with paper, which they fear poll workers would be unable to do.  We don't seem to have a problem printing ATM receipts or lotto cards, but then maybe the folks down at 7-11 are more technically sophisticated.

I asked the question, “Who decided to leave out this auditing capability?” The ability to audit is actually required by the Help America Vote Act of 2001, which is providing the $3.9 billion needed to buy all those touch screen voting machines.  Or at least it appears to be required.  Certainly, most of the Congressmen and Senators who voted for the Act thought it was required.  But then the language was changed slightly in a conference committee, and for some reason, though the auditing requirement remains, most systems aren't auditable.  Huh?  The best explanation for this that I have seen so far says that the new machines are "able" to be audited in the same sense that I am "able" to fly a Boeing 747.  I am a sentient being with basic motor skills just like all 747 pilots, so I am "able" to fly a 747.  So we are "able" to audit these machines.  We just don't know how.

:: Jason 1:36:00 PM [+] ::

:: Thursday, December 11, 2003 ::

Diebold Wants to Charge Maryland "Out The Yin-Yang" for Paper Receipts

An email leaked from Diebold Election Systems recently has exposed both the greed and arrogance that the company feels toward democratic challenges to its proprietary technology:

The e-mail from "Ken," dated Jan. 3, 2003, discusses a (Baltimore) Sun article about a University of Maryland study of the Diebold system:

"There is an important point that seems to be missed by all these articles: they already bought the system. At this point they are just closing the barn door. Let's just hope that as a company we are smart enough to charge out the yin if they try to change the rules now and legislate voter receipts."

"Ken" later clarifies that he meant "out the yin-yang," adding, "any after-sale changes should be prohibitively expensive."

:: Jason 3:28:00 PM [+] ::

Nevada Gambling Experts Refuse to Bet on Diebold E-voting Machines; Require Paper Verification

The State of Nevada has rejected Diebold voting machines for their elections after the machines failed to pass certification tests performed by the State Gambling Commission's slot machine technicians:

The decision to go with Sequoia machines was based in part on a review by the state Gaming Control Board’s slot machine experts who issued a report saying the Diebold machine that was analyzed “represented a legitimate threat to the integrity of the election process.”

The State also issued a proclamation that all electronic voting machines must produce voter-verifiable paper receipts in order to be acceptable. Yay!

:: Jason 3:21:00 PM [+] ::

:: Tuesday, December 09, 2003 ::

I, Cringely, on why it makes no sense to skip voter-verifiable paper receipts for e-voting

As many of you know, we at EFF have been pushing for quite some time to require e-voting machines to have voter-verifiable paper receipts. Robert Cringely has written an excellent column on the issue, pointing out the absurd position that Diebold, the leading e-voting machine maker, has taken on the issue:

"Now here's the really interesting part.  Forgetting for a moment Diebold's voting machines, let's look at the other equipment they make.  Diebold makes a lot of ATM machines.  They make machines that sell tickets for trains and subways.  They make store checkout scanners, including self-service scanners.  They make machines that allow access to buildings for people with magnetic cards.  They make machines that use magnetic cards for payment in closed systems like university dining rooms.  All of these are machines that involve data input that results in a transaction, just like a voting machine.  But unlike a voting machine, every one of these other kinds of Diebold machines -- EVERY ONE -- creates a paper trail and can be audited.  Would Citibank have it any other way?  Would Home Depot?  Would the CIA?  Of course not.  These machines affect the livelihood of their owners.  If they can't be audited they can't be trusted.  If they can't be trusted they won't be used.

Now back to those voting machines.  If EVERY OTHER kind of machine you make includes an auditable paper trail, wouldn't it seem logical to include such a capability in the voting machines, too?  Given that what you are doing is adapting existing technology to a new purpose, wouldn't it be logical to carry over to voting machines this capability that is so important in every other kind of transaction device?

:: Jason 12:26:00 PM [+] ::

Steve Jobs on Digital Music

Rolling Stone has a great interview with Steve Jobs about digital music. I was especially impressed in the paragraph below, where I think he nails both the attaction of file-sharing and the problem with calling it "stealing" on the head:

"Our position from the beginning has been that eighty percent of the people stealing music online don't really want to be thieves. But that is such a compelling way to get music. It's instant gratification. You don't have to go to the record store; the music's already digitized, so you don't have to rip the CD. It's so compelling that people are willing to become thieves to do it. But to tell them that they should stop being thieves -- without a legal alternative that offers those same benefits -- rings hollow. We said, 'We don't see how you convince people to stop being thieves unless you can offer them a carrot -- not just a stick.' And the carrot is: We're gonna offer you a better experience . . . and it's only gonna cost you a dollar a song."

:: Jason 11:44:00 AM [+] ::

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