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Thursday, October 25, 2012

Copyright's Serenity Prayer

I recently discovered an article by Carissa Hessick, where she argues that the relative ease of tracking child pornography online may lead legislators and law enforcement to err in two ways. First, law enforcement may pursue the more easily detected possession of child pornography at the expense of pursuing actual abuse, which often happens in secret and is diffcult to detect. Second, legislators may be swayed to think that catching child porn possessors is as good as catching abusers, because the former either have abused, or will abuse in the future. Thus, sentences for possession often mirror sentences for abuse, and we see a potential perversion of the structure of enforcement that gives a false sense of security about how much we are doing to combat the problem.

With the caveat that I know preventing child abuse is muchmuch more important that preventing copyright infringement, I think the ease of detecting unauthorized Internet music traffic may also have troubling perverse effects.

When I was a young man, copying my uncle's LP collection so I could take home a library of David Bowie casette tapes, there was no way Bowie or his record label would ever know. The same is true today, even though they now make turntables that will plug right into my computer and give me digital files that any self-respecting hipster would still disdain, but at least require me to flip a vinyl disc as my cost of copying.

On the other hand, it's much easier to trace free-riding that occurs online. That was part of what lead to the record industry's highly unpopular campaign against individual infringers. Once you can locate the individual infringer, you can pursue infringment that used to be "under the radar." The centralized, searchable nature of the Internet also made plausible Righthaven's disastrous campaign against websites copying news stories, and the attempt by attorney Blake Field to catch Google infringing his copyright in posted material by crawling his website with automated data gathering programs.

What if copyright owners are chasing the wrong harm? For example, one leaked RIAA study suggests that while a noticeable chunk of copyright infringement occurs via p2p sharing, it's not the largest chunk. While the RIAA noted that in 2011, 6% of unauthorized sharing (4% of total consumption) happens in locker services like Megauploads, and 23% (15%) happens via p2p, 42% (27%) of unauthorized acquisition is done by burning and ripping CDs from others, and another 29% (19%) happens through face-to-face hard drive trading. Offline file sharing is apparently more prevalent than the online variety, but it is much more difficult to chase. So it may be that copyright holders chase the infringement they can find, rather than the infringement that most severely affects the bottom line.

In a way, leaning on the infringement they can detect is reminiscent of the oft-repeated "Serenity Prayer," modified here for your contemplation:

God, grant me the serenity to accept the infringement I cannot find,
The courage to crush the infringement I can,
And the wisdom to know the difference.

All this brings me back to the friends and family question. The study on Copy Culture in the U.S. reports that roughly 80% of the adults owning music files think it's okay to share with family, and 60% think it's okay to share with friends. In addition, the Copyright Act specifically insulates friends and family sharing in the context of performing or displaying copyrighted works to family and close friends in a private home (17 USC s. 101, "publicly"). Thus, there is some danger in going after that friends and family sharing. If the family and friends line is the right line, can we at least feel more comfortable that someone to whom I'm willing to grant physical access to my CD library is a "real" friend than my collection of Facebook friends and acquaintances, some of whom will never get their hands on my vinyl phonograph of Blues and Roots?

 

Posted by Jake Linford on October 25, 2012 at 10:30 AM in Information and Technology, Intellectual Property, Music, Web/Tech | Permalink

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Comments

Jake, I don't know when it was that you were "a young man" copying your uncle's LP collection, but if it was after 1992, your copying was lawful under 17 USC sec. 1008. Labels insist that once a computer is used as part of the copying process, section 1008 doesn't apply, but non-commercial consumer copying of LPs to casette tapes is solidly within the section 1008 privilege or exemption.

For readers who don't carry the nearly 300 page copyright statute in your heads, section 1008 says, in relevant part:

"No action may be brought under this title alleging infringment of copyright ... based on the noncommercial use by a consumer of [a digital or analog recording device or medium as defined in section 1001] for making digital musical recordings or analog musical recordings."

(The definitions in section 1001 exclude computers. There's a lively debate whether section 1008 covers the copying of downloaded music or ripped CD files to blank music CDs, since blank music CDs are sold subject to a small copyright royalty that is paid to composers, publishers, labels and performers. But noncommercial consumer LP-to-casette copying is not actionable.)

Posted by: JessicaLitman | Oct 25, 2012 2:24:27 PM

Jessica, unfortunately, my home taping would not have been insulated by Section 1008, as it happened before the Act passed.

I haven't spent much time with this provision, but as I understand it, the recording industry was willing to trade an exception for home taping and manufacturing machines that allow home taping in order to get concessions regarding "serial copy management systems" (no second generation copying) included in Digital Audio Tape machines sold in the U.S. (SCMS). In retrospect, and in light of the study I cited about, I wonder if it was a good trade.

Your knowledge of the statutory history is much broader than mine. Am I missing something here?

Posted by: Jake Linford | Oct 26, 2012 8:14:58 AM

Interesting post, Jake. 2 comments on the above:

I'm curious if the 1008 exception still applies to the use of CDs in a computer. The exception applies to the noncommercial use by a consumer of a "digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium." I assume CDs and CD drives are not analog devices or media. A "digital audio recording device" is defined in part as a device "the digital recording function of which is designed or marketed for the primary purpose of . . . making a digital audio copied recording for private use." Is that the *primary* purpose of CD drives these days, either as designed or as marketed? Same with "digital audio recording medium," which is a material object "that is primarily marketed or most commonly used by consumers for the purpose of making digital audio copied recordings by use of a digital audio recording device." I'm not sure CDs are primarily marketed OR most commonly used these days for making copies of sound recordings, although from a brief scan of Newegg it seems to often be mentioned as a possible use on the packaging.

Jessica, you make a reference to the Section 1004 royalty payments on "digital audio recording media" -- I suppose the argument might go that as long as CD manufacturers/importers are paying the levy on CDs, and the relevant copyright owners are collecting amounts out of the fund, those copyright owners would be estopped from making the argument above. (Otherwise it would be eating their cake and having it too.) But it seems that the exception could still be vulnerable to a smaller player that doesn't file one of the Section 1007 claims.

2nd comment: "42% (27%) of unauthorized acquisition is done by burning and ripping CDs from others, and another 29% (19%) happens through face-to-face hard drive trading . . . ." This is not the first time I've encountered this idea, but I still find it difficult to believe. Where is all of this in-person trading occurring? Is this older people (parents, friends, older siblings) turning over their entire accumulated music collection to someone younger? Strangers meeting up at some sort of convention? Exchanges of "mix tapes"? The whole idea of vast numbers of people trading hard drives on a regular basis sounds implausible, but then it wouldn't be the first time I was out of touch with the zeitgeist. Does the bar graph count percentage of people saying they've engaged in that activity, or proportion of *songs*? The latter information seems like it would really difficult to obtain. Without knowing more about how the information in the bar graph was derived, or the context of the in-person transfers, I remain skeptical that in-person redistribution is dwarfing remote redistribution.

Posted by: Bruce Boyden | Oct 26, 2012 11:47:53 AM

Interesting post, Jake. 2 comments on the above:

I'm curious if the 1008 exception still applies to the use of CDs in a computer. The exception applies to the noncommercial use by a consumer of a "digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium." I assume CDs and CD drives are not analog devices or media. A "digital audio recording device" is defined in part as a device "the digital recording function of which is designed or marketed for the primary purpose of . . . making a digital audio copied recording for private use." Is that the *primary* purpose of CD drives these days, either as designed or as marketed? Same with "digital audio recording medium," which is a material object "that is primarily marketed or most commonly used by consumers for the purpose of making digital audio copied recordings by use of a digital audio recording device." I'm not sure CDs are primarily marketed OR most commonly used these days for making copies of sound recordings, although from a brief scan of Newegg it seems to often be mentioned as a possible use on the packaging.

Jessica, you make a reference to the Section 1004 royalty payments on "digital audio recording media" -- I suppose the argument might go that as long as CD manufacturers/importers are paying the levy on CDs, and the relevant copyright owners are collecting amounts out of the fund, those copyright owners would be estopped from making the argument above. (Otherwise it would be eating their cake and having it too.) But it seems that the exception could still be vulnerable to a smaller player that doesn't file one of the Section 1007 claims.

2nd comment: "42% (27%) of unauthorized acquisition is done by burning and ripping CDs from others, and another 29% (19%) happens through face-to-face hard drive trading . . . ." This is not the first time I've encountered this idea, but I still find it difficult to believe. Where is all of this in-person trading occurring? Is this older people (parents, friends, older siblings) turning over their entire accumulated music collection to someone younger? Strangers meeting up at some sort of convention? Exchanges of "mix tapes"? The whole idea of vast numbers of people trading hard drives on a regular basis sounds implausible, but then it wouldn't be the first time I was out of touch with the zeitgeist. Does the bar graph count percentage of people saying they've engaged in that activity, or proportion of *songs*? The latter information seems like it would really difficult to obtain. Without knowing more about how the information in the bar graph was derived, or the context of the in-person transfers, I remain skeptical that in-person redistribution is dwarfing remote redistribution.

Posted by: Bruce Boyden | Oct 26, 2012 11:47:56 AM

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