Dominic Young

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I’ve been around the news media and the internet since the beginning. I am interested in copyright as the basis for a thriving and balanced creative sector and society. Also interested in how the failure of copyright and other laws has led to terrible outcomes for the internet and everyone who uses it. I’ve done a lot of things around these issues.

  • Back to BO.LT

    I wrote before about BO.LT, the startup which is seemingly built on a cynical exploitation of the worst aspects of the Digital Miilennium Copyright Act.

    BO.LT emailed me today to tell me about the exciting new features they will be launching soon – apparently it will make it easier to “discover interesting things” and “get lost in millions of pages of content that people liked so much that they had to keep a copy”

    Don’t worry, all the old functionality is still there, copying fans! (By the way, leaving aside the obvious copyright issues, does their new approach remind you of anything? They sent a picture with their email showing their new interface – I wouldn’t want to infringe their copyright by posting it here but from what I can tell it’s basically the same as Pinterest. Surely they’re not just jumping on another bandwagon?)

    They seem to have brought their site down while they reconfigure but I was able to log in and just noticed on their newly blank homepage the box you see below.

    Just a reminder about copyright. It means “the right to copy”. Something which bo.lt clearly does not have in a huge proportion of cases – despite the liberal use of the word “copy” as if it’s generally OK.

    The good news is that their initial idea seems to have been a failure. The bad news is it looks like they’re staying in the business of showing contempt for copyright. Lets hope it’s no more successful this time…

  • Football DataCo loses again

    Some more good news from the courts.

    Football DataCo has lost its latest case in the ECJ relating to their efforts to protect football fixture lists.

    This has been going on and on for years, and when it all began I took a close interest due to my job at the time managing IP for a big newspaper group which wanted to use fixture lists but didn’t see why it should pay for providing millions of pounds worth of publicity.

    In the original case DataCo was claiming that anybody who wanted to use football fixture lists, or information from them, needed a licence, because the lists were a database and therefore covered by database rights.

    The ECJ, in 2004, disagreed and said that database rights did not apply in the way that DataCo claimed. This was important quite broadly because it, quite rightly in my view, effectively set quite a high bar for database rights protection.

    This caused some problems for a number of sports who had built their commercial model on being able to licence data to, in particular, betting companies.

    Prior to the judgement it was generally accepted that database rights applied to almost anything (at one stage I remember claims that the names and numbers of players were protected and couldn’t be used without a licence).

    DataCo, always chipper, decided that despite the ruling the ECJ was still wrong and so they started to start another lawsuit to try to assert their rights again, this time claiming copyright instead of database rights. This always seemed rather tenuous to me, because the amount of creativity and originality involved in writing a list of teams, dates and venues doesn’t seem huge.

    They sued a number of people including Yahoo who, to their credit given that this is hardly their core business, saw it through. Amazingly the ECJ took the case for a second time. And last week they rejected it.

    There may be many in sport wailing about this because it is the ambition of most sporting bodies to claim a share of any money anybody makes from any activity linked with their sport, and this makes that a lot harder.

    Betting, in particular, provides an important revenue stream for many sports which is only possible if the sport can find a legal basis for making a charge (or, of course, by negotiation, since both sides have something to lose as well as gain from the other).

    However it’s good news for common sense. If the law makes such small fragments of factual information licensable it is seriously altering the balance of IP laws which have always done quite well at protecting creativity while leaving facts unfettered.

    So, three cheers for this ruling and a big pat on the back for the litigants who were dragged through it by DataCo and who saw it through.

     

    Disclosure: In my previous role I was responsible for negotiating with Football DataCo on this and other issues. In my current role I have been involved in negotiating with them about different matters on behalf of media groups.

  • Disruptors disrupted, part two (updated)

    The NLA and Meltwater multi-pronged litigation passed a new milestone today. To remind yourself of the last one, and to get a bit more background on the case, have a look at a post I did previously.

    This time the it was the copyright tribunal’s turn to issue a decision.

    Meltwater were quick to claim victory. They called it “…a major decision in favour of Meltwater in the UK”. Elsewhere they said that they had been successful in reducing fees which would otherwise have been over £100 million over the next three years.

    It’s a funny interpretation of victory. It’s hard not to think of the Black Knight in Monty Python’s Holy Grail, gamely fighting on with no limbs left. Meltwater’s position has at various times been to deny that they need a licence, deny that their clients need licences, deny that what they do infringes copyright, state that what they do benefits newspapers because of all the traffic they get and variously claim that this case criminalises web browsing.

    They forced this issue to litigation in the first place, by refusing to take an NLA licence and making a referral to the copyright tribunal. That litigation has now taken them to the high court, the appeal court, the copyright tribunal and is still lumbering towards the supreme court. Costs run to millions of pounds.

    So far no court or tribunal has agreed that they don’t need a licence, no court or tribunal has accepted that their clients don’t need licences, no court or tribunal has backed their view that their business exploiting other peoples property doesn’t require the agreement of those whose property they exploit.

    So they resort to digging deep into the details of the copyright tribunal’s ruling to find a scrap of respite, something they can claim as victory, from this relentless failure to obtain backing for their stand. For what it’s worth (and I can assure you it’s not worth £100 million), they find it in the tweaks the tribunal has made to the NLA’s tariff (see Paragraph 260 for a summary of the whole decision or for a very detailed analysis of the thinking on fees start at around paragraph 183) which prevent the NLA from making planned increases in the next three years.

    But if we’re rummaging around in the tribunal decision, and you should certainly read the whole thing not least because these snippets are selective, a few other points jump out at us.

    For example, Meltwater claimed that they were sending out between 1 million to 5 million links per year to their clients (paragraph 78). Subsequent information (paragraph 80) revealed this to be about 70 million in reality.

    Meltwater has also claimed on various occasions that their service benefits UK newspaper publishers by sending them traffic which they can then profit from.

    In the tribunal it emerged that in 2009 Meltwater provided 94,000 click-throughs to UK newspaper websites (paragraph 86). “Not insignificant” they claimed.

    When you consider that the top 5 UK newspaper websites currently reach about 170 million unique users per month it doesn’t seem particularly significant either. Even if you assume each of these only generates a single page impression each (in other words, dramatically underestimate their actual traffic), 94,000 click-throughs is, according to my dodgy maths, somewhere under a hundredth of one percent of their current annual traffic. Probably not the most enormously profitable opportunity they have, and a strong indication that Meltwater clients get most of what they need direct from the extracts Meltwater supplies.

    This is significant for a number of reasons, not least in the light of another tribunal revelation. Meltwater claimed that NLA content is only responsible for 4% of their UK revenue (paragraph 77). The tribunal judged (paragraph 89) that 30% was a “much closer approximation”. And since Meltwater’s UK revenues are measured in millions of pounds, their argument that they should pay next to nothing, seems a little tenuous.

    The reason I mention these is to highlight the point that some of Meltwater’s figures seem to be dramatically skewed to help them paint a picture. Or, in the words of the tribunal (paragraph 35) referring to Jens-Petter Glittenberg, Meltwater’s Founder and Director:

    Either Mr Glittenberg genuinely had no idea about these numbers and was simply guessing wildly, which we find hard to believe, or he genuinely believed his estimates and therefore does not have much of an idea about his own business, which we also find hard to believe or he was simply deliberately seeking to withhold information to further his cause. We cannot resolve which it was and will not do so. However it does mean that we will treat Mr Glittenberg’s evidence with caution.

    The tribunal found themselves “…not impressed with Mr Glittenberg as a witness” (same paragraph).

    So with that in mind lets turn to one of the claims Meltwater has been making in the aftermath of the decision. They have saved UK businesses, they say, £100 million over the next three years. If true, this is a dramatic and impressive number. But where does it come from?

    That, I’m afraid, I can’t answer. I simply don’t know. Not the NLA, I am sure. They currently raise £20m or so from licensing in general, of which this is a tiny proportion, and they have been talking about much lower figures. In fact according to the NLA it would take more like 50 years for the saving from the tribunal ruling to add up to £100 million. Nor can I find the basis for the claim made in various places that Meltwater won on “seven out of nine” points it put to the tribunal.

    UPDATE: the NLA has published their own analysis of the Meltwater claims

    So it would seem that the victory Meltwater are claiming is that a huge and seemingly made-up cost, which would never have been charged anyway, will now not be charged. It’s a far cry from their lofty ambition to effectively get the NLA licences abolished.

    Finally a word about some of the other claims Meltwater have made. The quote at the start of this post, claming a major decision in their favour, comes from a longer article about a lawsuit filed against Meltwater in the USA by Associated Press to add to the ones they’re already fighting in Norwary, Canada and the UK. Valentines day 2012 probably won’t go down as the happiest in the Meltwater household.

    But they are bullish. It appears AP “misunderstands” how the Meltwater service works, according to their statement. Their service is “complementary” and “directs users to publisher websites”. Meltwater is “just like any other search engine”. Meltwater “respects copyright”. They are “confident” that their service “is compliant with US law”.

    It all sounds a bit familiar. It takes a lot of chutzpah, for sure, to make statements like that on the day when similar assertions have been so humiliatingly deconstructed in another tribunal.

    I have a suggestion.

    Perhaps Meltwater should stand back and think before spending yet more of their millions on yet another lawsuit. Perhaps they’re wrong. Perhaps publishers do, and should, have a right to say how their content is exploited. Perhaps setting up a company which treats other peoples property as a free resource is just not reasonable OR legal. And perhaps the courts will keep disappointing them,

    Maybe what Meltwater ought to be doing is asking itself what a fair deal would be, sitting down and negotiating it with content owners who are willing, and operating a service everyone is happy with.

    Just an idea.

    Disclosure: I used to be Chairman of the NLA

  • Temper, temper…

    Rob Levine has written a review of William Patry’s book “How to fix copyright”. Which you should read. And when you do, you must not neglect to flip over to the comments where Mr Patry has been holding forth in somewhat splenetic style.

    Marvellous.

  • SOPA hysteria

    Have you heard of SOPA? If you have, chances are you have heard one or other variation on the quite hysterical opposition to it which is being organised online. Various websites are planning to “go dark”. Companies with the temerity to support it are subject to boycotts to get them to back down. The end of the internet is being foretold. This is all about evil big businesses (media companies) trying to destroy and criminalise ordinary people and nifty internet startups (like, um, Google). So we’re told.

    I don’t propose to go into a lengthy debate about the issues because once a debate has descended into such cartoonish caricatures, most intelligent people will be naturally sceptical anyway (having said which, see the update below). If a reasoned and reasonable debate is being had, it’s probably not happening anywhere in the first few pages of Google search results. (On the other hand, this article might be helpful).

    For me, the core issue is simple. Do we need the internet to be better at supporting those who seek to earn their living from creativity? In my view: yes. If so, do we need the law to help? In my view: yes.

    One particular article, though, did strike me as richly ironic.

    Cory Doctorow, never exactly restrained on the subject of piracy and copryright, says that his website Boing Boing could never exist in a post-SOPA world because “making one link would require checking millions … of pages…”.

    Leaving aside the ridiculousness of that statement, the irony is that right now, that’s exactly what copyright owners are required to do in order to try to police and defend their rights. Thanks to the ill-conceived “safe harbour” provisions of the DMCA and their equivalents in other laws, copyright infringement is effectively unactionable without constant, active policing of the whole internet. Which is obviously not feasible. That is one of the reasons why some of the biggest companies on the internet are able to exploit and profit from content without ever checking rights at all, and why so few companies which invest in content creation are able to thrive online.

    So even if it were true, Doctorow’s outrage would ring a bit hollow to all those whose investment in creativity is constantly undermined by an internet built for piracy. SOPA, which fundamentally asks for people to take responsibilty for their actions, in his mind, “…is more than foolish. Foolishness can be excused. It’s more than greed. Greed is only to be expected. It is evil, and it must be fought.”

    Such hyperbole is an insult to the idea of intelligent debate. By reducing the issue to a David v Goliath, Good v Evil, Big Bad Media Companies v Ordinary People it also insults the millions of people who would aspire to make a living by being professional creators.

     

    Update. I thought I could get away without explaining about SOPA at all but a couple of people have askefd for a little background. SOPA stands for Stop Online Piracy Act and a piece of proposed US legislation aimed at making it easier for content owners to take action against sites which are dedicated to piracy. Some of the arguments against it focus on the possible unintended consequences (sites innocently linking to other sites which host infringing content getting caught  by the rules) and others on other details. There is lots online about it, mostly saying why it’s awful and the end of the internet as we know it. There are other more calm and thoughful articles to be found as well. This one, for example. And this WSJ leader.

  • Smart legislation would be great, lets get rid of the dumb laws too

    We might, as Neelie Kroes suggests, be losing the battle to enforce copyright. The hearts and minds of many users might already be lost to the more tempting promise of limitless supply in a copyright-free world. But what role has the law played in creating this situation and what could politicians do to fix it? The e-commerce directive and DMCA need to be back in the spotlight, and the dreadful, if unintended, consequences of those hasty laws need to be recognised and reversed.

     

    Neelie Kroes has made an interesting speech, much of which it’s hard to disagree with. Her theme is “who feeds the artist” and it refocuses the discussion about copyright on its core objective: to ensure that creators get paid.

    She states the following objectives for copyright:

    Legally, we want a well-understood and enforceable framework. Morally, we want dignity, recognition and a stimulating environment for creators. Economically, we want financial reward so that artists can benefit from their hard work and be incentivised to create more.

    And she says she’s an “unconditional supporter” of these objectives. Which is good news. I agree.

    She comes out as a strong supporter of a better licensing infrastructure, making it easier to legally acquire the rights needed to use content legally. I agree with this too. It’s more or less the same line of thinking I have been promoting since the idea of ACAP was a twinkle in my eye, and it’s strongly supportive of the approach which the Linked Content Coalition is now developing actively.

    Smart legislation

    She says that “smart legislation” can play a role in bringing about her vision of a better future for creators. Three cheers for that, I say, because the bleak choice to litigate endlessly and expensively is not appealing to anybody least of all the beleagured creators.

    I also hope that along with introducing “smart legislation” she also gives consideration to abolishing, or at least modifying, some dumb legislation of the past.

    Kroes says:

    legal enforceability is becoming increasingly difficult; the millions of dollars invested trying to enforce copyright have not stemmed piracy

    This is true, and this is a problem which has been in no small measure caused and exacerbated by the law. Specifically one law.

    Dumb legislation

    The European e-commerce directive (along with its counterpart the Digital Millennium Copyright Act in the USA) has created the giant loophole through which the coach-and-horses of businesses contemptuous of copyright can be driven.

    This directive created the “safe harbour” (to use the american term) which makes internet companies effectively immune from liability (or damages) for the infringements of their users.

    In so doing, it went beyond protecting vulnerable new players from the possible  consequences of old law applied to the new world. It also created a huge opportunity for anyone to build a business which can make vast sums of money exploiting content – as long as they don’t do anything to monitor or proactively act on infringements.

    Ignorance is not just a defence, it’s a necessity

    As far as copyright is concerned, their obligation is to do no more than wait for complaints and then act on them. In fact if they do do more than this they actually increase their liability – ignorance of the infringement is their defence. So the law actually rewards a lack of governance and punishes responsible behaviour. Ignorance, in this case, is not just a defence but an obligation.

    Their users aren’t similarly immune, of course. They are expected by the law to take full responsibility for their actions. On the face of it this seems fair; there’s still someone who has liability, it’s just not the internet company who merely provided a facility which a naughty user abused.

    ISPs are immune, users are unreachable

    However, while the liability may pass to their users, the internet companies don’t actually have to know who their users are to benefit from the immunity the law gives them. Nor are they obliged to hand over whatever details they do have about their users, and most of them will refuse to do so without a court order (after which it may turn out they have little or nothing to give – the one time I pursued this all I got at the end of it was an IP address belonging to a university).

    So the copyright owners have to police the entire internet, all the time, in respect of every piece of their content, in order to get infringing copies removed. In reality taking further action against users is expensive, unlikely to result in any meaningful recompence and often impossible even if they are prepared to go to court twice (once to obtain the user details and then again to actually take action against them). And internet companies, freed from the irksome responsibility of even basic governance, are able to build huge businesses with very little cost or risk.

    So, unsurprisingly, some of the biggest businesses on the internet depend on this for their viability and enormous profits.

    Legislate in haste, unintended consequences guaranteed

    One way of thinking about this law, and the DMCA, is that they codified the status quo on the internet at quite an early stage. The internet had largely grown up from a utopian vision of a world free from many of the constraints of the regulated world outside.

    This utopian vision used to extend well beyond copyright. I remember when people thought that they were truly anonymous on the internet, that they couldn’t be traced or monitored as long as they used a pseudonym. When people thought that national laws would be unenforceable and that traditional law would never reach the internet. It was truly a utopian vision, from the perspective of those who built it starting with a blank sheet. The hope of many of them was that commercialism and old legal frameworks would never rule the day because in the intangible, borderless new world of cyberspace individuals held the power.

    But gradually the real world has chipped away at that vision. Some of it is still there, but just like the real world we have seen the full mix of human nature move online. And as it has the internet has changed. Criminal activity has had to be curbed. Regulation and law enforcement have become an ever growing reality. Surveillance and intrusion has become a fact of life too, with complex steps needed for those who want to try to evade it. Security has improved, peoples willingness to trade online has improved too, and the ingenuity of criminals has raced ahead. An endless cat-and-mouse game. It was ever thus.

    Almost no aspect of the internet is recognisable from those utopian early days from the way in which web pages work to the protocols which underpin the most basic functionality

    Copyright has been excluded from the evolution of the internet

    However, strangely, the internet is no better at dealing with copyright than it ever was. Despite the ability of the internet to simplify immensely complex things – from finding a website to dealing with your banking – copyright remains as old-fashioned and clunky as ever and the internet’s ability to deal with it remains entirely undeveloped. Buying a licence – or even knowing who to buy one from – is, as Kroes points out, is absurdly complex and expensive.

    As far as copyright is concerned, the internet remains much as it was when Tim Berners-Lee had the first twinkle of a web page in his eye. Which is unfortunate because at that stage the internet without any effective mechanisms for managing copyright at all.

    But why was copyright left behind as the internet raced ahead? What held it in that simplistic, stunted state of evolution?

    Well, in part it suits those who have the greatest influence over the way the internet works, so they have (at best) avoided putting any resource into the issue and (at worst) done everything they can to prevent other initiatives from gaining ground. Whether for ideological or commercial reasons (and one very often masquerades as the other) they have no desire for change and can kill any attempts by pronouncing that they would “break the internet”.

    But they have been aided and abetted, and latterly incentivised, by laws made in haste for simplistic reasons and which have held the internet suspended in an embryonic form, destined like Peter Pan never to grow up, for the last decade or more.

    Poor copyright functionality is complimentary to the new mega-businesses

    What it has given rise to is a small cadre of mega-businesses, who monopolise the content-related revenues of the internet and prevent development of new business models. It has impoverished content businesses and destroyed, in many instances, the rationale for investment in creativity.

    These mega-businesses, made bullet-proof by the law, have also created a world in which copyright has become demonised and where the less you invest in content the more you make.

    Kroes is right to point out in her speech the shame that creators make so little from their creations but she is ducking a big issue if she fails to address the real cause of the problem.

    It’s true that enforcement is a losing game but hardly surprising given the protection that the law has given to infringement. Imagine if the law made dealing in guns and ammunition legal and unrestricted, and only criminalised use of guns. Would we have more or less gun crime? Imagine if we abolished speed limits and allowed drivers to decide for themselves how fast to go. Would we have more or fewer road deaths? Imagine if the job of setting duties on fuel were put in the hands of car manufacturers. Would we see cheaper or more expensive petrol prices?

    Letting people write the law to favour their own interests is likely to result in laws which minimise their obligations and and maximise their opportunities regardless of the impact on anyone else. That’s why, in democracies, they’re not allowed to do it. The role of politicians is to prevent this happening and ensure that the law strikes a fair balance. With what were doubtless impeccable intentions at the time to protect vulnerable underdogs in the new digital world, the safe harbour provisions of the E-commerce directive and the DMCA have failed the test of time and has proved themselves to be a disaster. ‘

    Failed laws should be changed, even if it upsets the status quo

    It’s no surprise that these invulnerable internet businesses lobby strongly for the laws which protect them from normal vagaries and costs of business governance, and even for further relaxation to make life even easier for them. Their absurdly self-interested and disingenuous arguments have been given so much exposure, courtesy of their enormous consumer reach and the lobbyists they fund, that they have begun to feel to some as if they are givens, natural truths. We are in danger of getting the world they have wished for.

    Nor is it any surprise that their users, who are also the beneficiaries of the impunity to infringe that has been created, dislike copyright and resist attempts to enforce it. Someone threatening to take away the cheap and seemingly limitless fuel that they have grown so used to putting in their cheap and gas-guzzling cars, and they want to keep it.

    While it’s great to hear politicians talk about using “smart legislation” to improve things for creators in the future, they shouldn’t consider the recent past as anything other than a salutary lesson. As well as creating better new legislation they need to get rid of the disastrous old legislation which has destroyed much of the opportunities the internet should offer creators.

    While I share Neelie Kroes’s frustration about enforcement, I find it equally frustrating to see politicians talking about this as if it’s nothing to do with them. Of course we need to move on, and the first thing we need to do is remove the legal incentives to build massive businesses on copyright infringement.

  • The answer to the machine… a guest post by Mark Bide of Rightscom and the Linked Content Coalition

    Mark Bide is the Project Director of the Linked Content Coalition, about which you will hopefully soon hearing more. Posted below are some remarks he made to The Intellectual Property Lawyers Organisation

    It is hardly a secret that, in the era of the internet, it is increasingly difficult to maintain successful businesses which are dependent on copyright.

    It is also no mystery. The ability to make perfect copies and to distribute them instantaneously to over 2 billion people – the 30% of the world population classified as internet users – has irrevocably changed the copyright industries – those industries we also sometimes call “the media”.

    This is not a bad thing. The barriers to becoming a publisher – in the broadest sense of that word, someone who makes something creative public – or indeed to becoming a self-published author or creator of any kind – have largely disappeared. We can all be published authors or composers or performers or directors now.

    No one can (or at least no one should) object to this. The democratisation of mechanisms for publication and dissemination brings with it a huge benefit. But alongside this, we have seen the steady erosion of the capability to make a return on investment from the creation and dissemination of content.

    Business models in the media have – almost without exception – been dependent on copyright for 300 years; copyright has been the mechanism that has provided the rewards for creativity. That solid foundation has enabled the development of the diverse and creative media sector from which we all – individually and corporately – benefit.

    Despite the common caricature of the traditional media as dinosaurs who are desperately trying to hold onto a lost past, in reality the media are embracing their digital future. Some sectors have certainly been temporarily wrong footed not just by the sudden and dramatic shift in technology but also by aspects of the law. Copyright law, while remaining for the most part fit for purpose, has been made less effective by interventions such as the DMCA and the eCommerce Directive which have made certain infringing business models viable with almost complete impunity.

    So while economic and distribution barriers have come dramatically down, the entrepreneurial response you might expect has been muted by the double-whammy of technology and the law, both contributing to the foundations of copyright businesses being undermined.

    Despite this, the overall response from the media has been positive and creative. And with this response has come the recognition that – on the network – rights rather than content are the unit of commerce. We trade no longer in physical objects but in rights of access and use.

    However, complete disregard for copyright on the internet has become so commonplace as to be unremarkable, something we may rarely admit to doing ourselves but embarrassedly admit is all too common among our children or grandchildren.

    But it isn’t simply individuals who disregard copyright; whole sectors of business have developed on the internet whose entire business model is dependent on turning the principles of copyright on their head, of moving from a permission culture to one that at best offers a limited power of opt out and take down.

    On the internet, we now find ourselves in a position where making investment in creating content looks a mug’s game. Investment in exploiting other peoples’ content is a much better bet. On line, the best profits from content are made by those who make little or no investment in content creation, and accept none of the risks and liabilities associated with what it has always meant to be a “publisher”.  They leave that to others. The mugs, whose online content creation continues most often to be subsidised by revenues from their traditional – off line – activities.

    At the same time, legislators, under pressure from those who tell them that copyright is somehow old-fashioned and Luddite, seem increasingly inclined to go even further in weakening copyright law.  The media are told they must seek “new business models” that do not depend on copyright – but these have consistently proved elusive.

    Unless we find a way to turn back this tide, professionally-created content of all types will inexorably become increasingly rare, particularly on line. Our challenge is simple: we have to make investment in content pay again. If we don’t, there will be no investment. This will be massively impoverishing of our culture and our society.

    However, I don’t want to sound as if I believe that all is lost. I would argue that, what we have seen is not a failure of copyright but rather a failure of technology, or perhaps of technological implementation. Bringing the ordered structure of copyright back to the chaotic world of the internet does not require wholesale change in copyright itself (although doubtless there is a constant process of updating required – as Professor Hargreaves has indeed pointed out); rather it lies in finding more effective ways of implementing copyright in this relatively new environment.

    To quote the late Charles Clark, adviser to the publishing industry in the latter years of the 20th Century: “the answer to the machine is in the machine”. If we can make rights management and rights clearance work effectively at the machine level, everyone will benefit. Consumers will get what they want. Authors and their media partners can get a fair reward for their efforts – and we can continue to develop an effective and competitive online supply chain which also profits from its use of content.

    So we must find ways of making technology work as well for us in the management of copyright as it has in managing other aspects of the immense complexity of the internet. The internet is not the end of the media, it is a massive marketplace. Technology is not the enemy, it will be our saviour.

    I’m not talking about “Digital Rights Management” – or in Euro-speak “technical protection measures” – although well-implemented technology to enforce rights has its place. Rather I am talking about the “digital management of rights” or perhaps the “management of digital rights”.  We need to be able to communicate effectively about rights in order to build automated and semi-automated ways of transacting in them.

    I will offer you one sure-fire prediction about the future of the internet in the next decade. In much the way that it has become a pervasive human-to-human communication environment, it is set to become an equally pervasive machine-to-machine communication environment. This is sometimes (although probably erroneously) called Web 3.0. The revolution implied is on the same scale as the development of the World Wide Web as a publishing medium, and subsequently the development of Web 2.0 – social media, and the engagement of us all in the creative process.

    We are still in the early infancy of this latest development in the internet. But it is clear that standards for unambiguous identification and description will play a key role in its effective deployment – particularly in a field like automated rights management, which is intolerant of ambiguity about (for example) who controls rights – or even more importantly who should be paid for their use.

    Much work has already been done in developing relevant technical standards in different sectors of the copyright industries – but these are isolated in silos.  As all the different sectors converge on a single distribution channel – the internet – we need to find ways of working together much more effectively. Our customers care little about which sector we think we work in – these distinctions are becoming increasingly difficult to define.

    This is why – with the support of the Information Society Directorate General of the European Commission – the European Publishers Council (for whom I work as a consultant) are launching a cross-media project in 2012 called the Linked Content Coalition, with a view to building the necessary foundations of this standards-based information infrastructure, to allow the existing trade standards organisations from across the media to learn from each other and to work together on issues of interoperability.

    Is this the answer to the challenge to copyright on the network? No, of course it’s not. But it is at least part of the answer. It is only one element of the infrastructure needed – necessary but not sufficient – to facilitate the creation of a voluntary but effective market for automated and semi-automated rights trading. Completing the task will take a long time, and will involve substantial investment on the part of the copyright industries. But I am convinced that this is a task worth undertaking. Our culture is built on creativity and creativity is built on copyright.

    We have already seen enough of the damage that a faulty internet does to the creative industries to know that continuing on this path will lead to less media, which will leave end users – you and me – very much the poorer.

    We know that copyright is worth protecting because we know how much economic, social and cultural good springs from it. We also know that small changes can produce dramatic turnarounds. We are working on one small change with massive possibilities. I hope to see the internet deliver – finally – on its tantalising potential to create a new army of content entrepreneurs and content products for us all to enjoy.

    That’s a world I want to live in, I hope you do too, and I hope you will support our efforts.

    Thank you.

  • Fascinating ding-dong about Jefferson and copyright

    I won’t try to summarise, just head on over to Terry Hart’s blog and look for yourself (be sure to read the comments). A bunch of big brains bumping up against each other.

    And have a squizz at Robert Levine’s take on it too. He’s not particularly polite about all the big brains…

  • Things to make and do: create a new kind of copyright

    There are lots of people out there who would like less copyright, and plenty of people benefiting hugely from the fact that it doesn’t work well online.

    There are others out there who wish it would work better and are coming up with ways that can happen (I’m one of them).

    And there’s another whole category of people who want copyright, or some kind of right, to extend beyond words and pictures to the subject of those words and pictures. If they, or something they own is written about, or photographed, they want copyright-style control over that.

    “Absurd”, chuckle copyright lawyers and well informed legislators. To imagine such a thing is to fundamentally misunderstand the nature and aims of copyright and the law.

    “Good idea”, say others rather ominously, having heard a rather selective and seductive pitch.

    In a sensible world I would discard such ideas. But in a world where the law has turned copyright on its head, reversed its aims and made monstrous riches for people who steal value while adding none, I have learned never to underestimate the common sense of those whose job it is to legislate.

    Asking anyone who has to get re-elected every five years to think about the next ten, or twenty, or hundred is asking a lot. Bad law, after all, is one of the things which keeps politicians in business.

    This idea has form…

    Of course, while a new law would make life simple, new rights can be created without one. And one sector in particular has been busy doing so for the last ten years or more.

    So here’s my guide for fun things to make and do: invent a new kind of copyright in two easy steps.

    Before you start:

    Imagine you own a football club. You are a powerful and wealthy individual. You are a member of an elite group – a league – of other clubs which are also run by powerful and wealthy individuals. You’re all used to getting your own way, and you are used to being able to squeeze money out of your club’s fans in interesting and innovative new ways.

    One of the best ways is “Rights”. Rights have been a goldmine, and they’re the gift that keeps on giving. TV rights are the best example – the right to bring TV cameras into a ground and point them at the action has turned from a great way of attracting attention to your sport to a multi-billion pound (or dollar or euro or yen) business.

    The way “Rights” work, if you’re a football club or other sporting body, is this:

    Step 1: have a venue

    First, your venue. Your stadium is your place, right? People can only come in it if you say they can. And you can set the rules. So you do. People can only come into your ground if they agree to certain rules. And you do, whether you know it or not, when you buy a ticket. Some are obvious: don’t bring your own food and drink. Don’t go on the pitch. Don’t misbehave. Some, less so: don’t take any pictures. Don’t communicate with anyone outside the ground. Don’t tweet. You thought you were buying a ticket, but actually you were signing a contract.

    [by the way – an aside – but some don’t have any venue at all but still try the tricks outlined here. City marathons, for example, whose venues are the streets to which the public have unrestricted access, have been known to try to impose restrictions on the media].

    Step 2: make some rights

    Then, make some “Rights”. You have banned people from doing certain things, which means you can decide if anyone else is allowed to do them. By banning them you have made them into “Rights”. Ta-da! These aren’t legal rights, like copyright, written down and defined in law. They’re custom rights, written down and defined by you. The more you ban people from doing, the more “rights” you can invent and try to sell to someone. TV rights, for (the most obvious) example. But there are many others. You have magicked up a whole new business at the gates of your event, limited only by your imagination in creating and exploiting the rights you now own.

    Step 2a: control the media

    But there’s a fly in the ointment. There are some people you have been letting in for years, and you still want to, who can do a whole load of things which are otherwise banned. They’re the media. You want them there to publicise your game and promote your sponsors (when people buy sponsorship from football clubs they’re really buying cheap advertising space in newspapers). You can’t lock the media out, but you certainly don’t want them using their words and pictures willy-nilly because that might damage the “Rights” you just created by banning people from doing those things.

    The media get on the nerves of your average football club owner. He’s used to being autocratic and having control, and these guys turn up every week and then write and print whatever they want. Worse than that, some of them are in the business of selling their words and pictures to others. They’re making money from your club, you’re expensively making facilities for them and they’re robbing you of the opportunity to sell more “rights” to more people.

    You have to try to rein them in.

    Paperwork works…

    There used to be an easy way of doing this which was to treat them like ticketholders. Sneak a contract in the way when they think all they’re doing is turning up to do their jobs.

    So it began, a decade ago or more. Photographers and journalists turning up at sports events would be asked to sign a bit of paper before they came in. It used to say anodyne inoffensive things – they confirm their identity, that they have insurance, who they’re working for and so on. All fair enough.

    Then the small print started to get longer, and the clubs teamed up to agree on the wording, but nobody really noticed. Who reads the small print, right? As long as they could do their jobs they didn’t care. As long as they could produce their newspapers their editors didn’t care either.

    So the small print increased and increased and without anyone realising what was happening the sports had made themselves some “rights”. They had banned the media from doing all sorts of things with their own content, and the media hadn’t even realised they were doing it.

    …until someone reads it

    And long may it have stayed that way had a few people in the media not started reading the small print and raising objections, partly because the terms started to impinge on what newspapers (and in those days it was mostly newspapers) did every day – in other words because the sport got too greedy.

    So was born a whole new battleground between sport and media which results in increasingly frequent and increasingly bitter conflagrations. If you picked up a newspaper, for example, during the first week of the England Football League season this August you might have been surprised to see reports written by reporters in the stands. They had been locked out of the press box. Coverage was dramatically reduced.

    Similar things have been seen at various times in coverage of cricket in Australia, the current Rugby World Cup, the Indian Premier League and countless others. In other areas, events organisers have tried to ban critical comments of their event as a condition of entry, tried to force copyright of photographs to be handed over to them, have demanded free use of any material generated at their event.

    The thing all these agreements, whether anodyne or outrageous, have in common is that they are trying to extend the concept of intellectual property to events. By creating a made-up contractual right event organisers reserve for themselves some of the things which the law reserves for copyright owners.

    It’s not as easy as it once was

    In recent years it has become a little more difficult for them. The News Media Coalition* is one organisation which has been set up to help ensure that these agreements are at least subject to some discussion and negotiation and it has been very successful in challenging some of the more egregious examples.

    But the overall issue is more insidious than just a few sports bodies and concert promotors trying their luck when dealing with the notoriously tactical and careless media. Some of them actually believe that the concept of intellectual property should be extended to cover events as well as content. That staging an event should give you a legal, not just contractual, right to have control and ownership of the content created which is connected with the event.

    Think about that for a second.

    Someone who organises an event owns some sort of IP right in the event itself. They have a legal right to some sort of control over “use” of the event. Their control isn’t based on anything fixed and identifiable – like a photograph or an article, but on something abstract and ephemeral – the event itself.

    This saves them from all the trouble of imposing contractual restrictions on everybody at the event, and then from tracking down and suing anybody who ignores them. It covers people watching on TV, who see the event without being there in person and therefore without a ticket to print rules on. It saves them from having to negotiate with the troublesome media who constantly interfere with their desire for total control. You can see the appeal.

    Freedom of thought?

    But it would also extend the idea of IP into scary places. If you can’t write about a concert or a football match, for example, without first getting permission, what happens to criticism? If, when you take a picture or something you may already have handed some ownership of it to someone else, you might find that you owe someone something for just having something you thought was your own property.

    If by discussing it with others, expressing opinions about it, recalling it within earshot (or web-page-shot) of others, you are also breaching someone else’s rights then we have extended IP to actual thoughts. Far from the original intention of IP – to encourage the sharing of original thinking by protecting its expression – some would extend the reach of the law right into your mind. Forget freedom of speech, freedom of thinking will under threat.

    It’s a mad idea. But it won’t go away. The English Premier League argued recently, not for the first time, that football matches should be given a performance right, of the kind given to performance works such as ballets (the insinuation that football matches are choreographed is slightly amusing). The court said no. But some politicians have heard the headlines, thought little about the implications, and warmed to the idea. That’s not just mad, it’s terrifying.

    * disclosure: I was one of the founders of NMC and sat on its board until earlier this year. I have also conducted negotiations with sports bodies on their behalf

  • Giving copyright the $5m finger

    Check this out.

    bo.lt is a startup in what seems to have become the classic west coast model.

    Silly domain name? Check!

    Bullshit mission statement? Check!

    SF address and previous startup credentials Check!

    Big money funding? Check!

    Business model entirely dependent on other peoples content? Check!

    It’s really extraordinary. Let me quote from the website:

    Grab the pages that interest you. Cut out what is distracting, corporate, and irrelevant. Drop in images and text that can make the page come alive again. And share what you have done. Content wants to move in the social world. Give it a boost.

    We have created software that helps *you* make the web more interesting to the people you care about. With BO.LT we have taken the shackles off. It’s your turn.

    So let me put that another way.

    Copy content. Amend it however you like. Change the meaning if you want. Remove the branding, links, context, design (or don’t, even if you have changed the meaning and message of the content). Add some stuff of your own. Re-publish it somewhere else.

    Kind of an encyclopaedia of what copyright is meant to prevent. This is a product of the crazy internet utopia that so many west coast startup people seem to live in, believing it to be real. Act as if the world is the way we want it to and maybe it will come true!

    There’s a reason why this stuff is illegal. In the case of bo.lt lots of them. I find it hard to fathom that it has to be spelled out. All you have to do is put yourself in the position of whoever created a page or site or piece of content in the first place.

    Are they necessarily happy for anyone else to use it however they want? Do they mind if someone alters the content but makes it look like they didn’t? Do they mind if it’s commercially exploited by someone else? Do they care if someone’s marketing department wants to tweak their article to make it a bit more favourable? Do they mind if their brand is mis-used whimsically by anyone who happens to swing by bo.lt?

    Perhaps they would like to have a say. Perhaps they would like people to ask first. Perhaps they want to be able to say no if they don’t like it. All these rights are given to them by the law, yet here someone has set up a business as if the law simply didn’t exist.

    I know that these things go on. I have spent years stopping the most egregious mis-uses of content and brands which I have been managing. But I haven’t often seen quite such a blatant attempt to commercialise what to me is quite clearly illegal activity (bo.lt is a “freemium” service – prices for corporate users start at $2000 per month).

    So, if this seems so clearly illegal, how are they getting away with it? Why on earth did someone put $5m into it?

    Well, it seems that is all part of the game. Whether something is legal or moral doesn’t really seem much of a consideration. And in the case of bo.lt they reckon the law has given them a killer get-out-of-jail card. They are protected, they say, by the “safe harbour” provisions of the Digital Millennium Copyright Act. Nothing their users do is their problem until someone tells them about it. Never mind their role in facilitating and hosting the infringement – as long as someone else actually did the deed of initiating it, they’re OK.

    You can tell how much they care about copyright by looking at their terms and conditions.

    If you’re a user you have to agree – by accepting the terms of service – that you will not:

    violate or infringe the copyrights, rights of privacy or publicity, or any other rights of any person;

    which you will, of course, almost always be doing unless you’re using it to adapt your own owned or licenced content or webpage which would seem a little odd. There may certainly be non-infringing uses of the service but they seem unlikely to be the majority. They have to put that little thing in their terms, to at least try to stay on the right side of the DMCA, but note the informality of it. Nothing done to enforce or check compliance, just a sentence buried in the small print nobody ever reads.

    Compare and contrast to what you have to do if your copyright has been infringed:

    It is Boltnet’s policy to respond promptly to claims of copyright infringement and to remove or block access to any infringing material as described below. If you believe that any content or pages served by the BO.LT network contains infringing material or property, then please notify us as soon as possible.

    If you believe that your work is the subject of copyright infringement and appears on our Site, Services or any pages on the BO.LT network, please provide Boltnet’s designated agent the following information:

    • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
    • Identification of the copyrighted work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a full list of such works at that site.
    • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit Boltnet to locate the material.
    • Information sufficient to permit Boltnet to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
    • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
    • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    Boltnet’s agent for notice of claims of copyright infringement on this Site can be reached as follows:

    By Mail: Boltnet.Inc,

    Attn: Ben Smith

    3 Pier, Suite 105

    San Francisco, CA 94111

    By Phone: 415.742.8418

    By E-mail: copyrightclaims@boltnet.com

    While they’re prepared to take their users implicit word for it that they’re not infringing anyone’s copyright – no need even for a statement “under penalty of perjury” to confirm – despite that being almost vanishingly unlikely in a huge proportion of cases, they are a little less inclined to take a copyright owner’s word for it when their work has been infringed.

    So while anyone can effect an infringement by simply pasting a URL into the bo.lt website, the work of a second or two, anyone wanting to protect their work has to not only actively track it down but also provide a slew of paperwork and scary legal documentation to get it removed.

    Even after that, it would seem the best you can hope for is that they’ll take down or block access to the content. Nothing there about damages, identifying the user they’re hiding behind to get their DMCA protection, helping right any wrongs. Just the minimum the law demands of them.

    It’s a sort of distillation of the contempt with which parts of the online world regard other peoples property. They see it as a free resource, a route to a swift $5m in “series A funding”. The idea that the person who owns something might have something to say about it, or that what they’re doing is simply legally and morally wrong, seems not to come into it.

    For sure, it confirms what is already obvious: the DMCA is bad law and gives rise to bad outcomes. Somehow, though, it is worse than that. It seems so cynical, showing a metaphorical finger to copyright and laughing all the way to the bank. I honestly thought it was a spoof. I hope it is. But sadly it seems real.

    Footnote: while they seem quite laissez faire about other peoples copyrights, bo.lt are a bit more protective of their own, bringing the full force of the law to bear on anyone who does to their content the thing that they will happily do to anyone else’s

    From their terms of service again (emphasis added by me):

    Unless otherwise specified in these Terms of Service, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Boltnet, Copyright 2010 Boltnet, Inc.. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or licensor. You agree not to copy, reverse engineer, or otherwise infringe on our complete right, title, and interest to the business processes, technology, interfaces, designs, or other proprietary property contained in the Boltnet Site or Service.

    Ha! Stick their own URL into their service and wait for the knock on the door. Perhaps I’ll try it!