[DMCA-Activists] Oram: The Problem with Webcasting: A cast that can be imprisoning

[Seth Johnson]

(Article text pasted below.  -- Seth)

-------- Original Message --------
Subject: [IP] The Problem with Webcasting: A cast that can be
imprisoning
Date: Sat, 14 Jan 2006 09:04:43 -0500
From: David Farber <address@hidden>
To: address@hidden


Begin forwarded message:

From: Andy Oram <address@hidden>
Date: January 13, 2006 10:27:07 PM EST
To: address@hidden
Subject: The Problem with Webcasting: A cast that can be
imprisoning

> http://www.oreillynet.com/pub/a/etel/2006/01/13/the-problem-with-webcasting.html

Andy Oram examines the new concept of a "webcaster's right" that
major Web portals are trying to introduce through a World
Intellectual Property Organization treaty. The treaty would allow
Web sites to control the dissemination of content they put up.
Using the failed database protection laws as an example, and in
the context of the carrier's desire to create a tiered Internet,
Andy analyzes this new threat to the public domain.

-------------------------------------

Archives at:
http://www.interesting-people.org/archives/interesting-people/

---

> http://www.oreillynet.com/pub/a/etel/2006/01/13/the-problem-with-webcasting.html



The Problem with Webcasting

A cast that can be imprisoning


by Andy Oram

01/13/2006


There's a new restriction on content waiting in the wings--a
"webcaster's right" that allows websites to control the
dissemination of content they put up. With this new privilege,
they'll be able to prevent retransmission even if the copyright
on that content is owned by somebody else--even, in fact, if that
content was in the public domain.

What is webcasting, and what will be the effects of this
restriction? Nobody knows--except, one supposes, the large web
portals pursuing the webcaster's right. I will try to ferret out
what they want to do in the course of this article.
First Came the Broadcaster's Right

Unbeknownst to most Americans, in many European countries, TV and
radio stations for some time had a "right" to control
dissemination of their broadcasts. A U.S. delegation to the World
Intellectual Property Organization, (peopled by members of the
Copyright Office and the U.S. Patent and Trademark Office), wants
to bring these restrictions home.

The harm this could do to public discourse hit me just recently
when I attended a forum on wiretapping
(http://www.oreillynet.com/pub/wlg/8923), where several TV clips
of George W. Bush's speeches were aired. The value of seeing
these excerpts was incalculable. But if we had to adhere to the
broadcasters' treaty, showing them would have been illegal. By
copyright law, showing them in a non-profit educational setting
was probably fair use--but it's not clear how any concept of fair
use would apply to a broadcasters' treaty.

Because it's often impossible to contact the original copyright
holder, the right to retransmit broadcasts is essential to public
discourse. Copyright is motivated by the laudable goal of
encouraging authors' creativity and productivity--but what value
do broadcasters add? There's precious little creativity involved
in sending out a broadcast. Nevertheless, broadcasters are
claiming an extra layer of rights--which adds an extra barrier to
reuse.

It's important to note that this legal maneuvering goes on in the
context of publishers' growing technical restrictions on
dissemination through digital rights management, and their
attempts to plug the "analog hole" so that no rebroadcasts could
take place anyway. But now we face the prospects of new barriers
that have existed nowhere before now.

Then Came the Webcaster's Right

The U.S. WIPO delegation is also pushing for an extension of the
broadcasters' control to the Web. The European broadcast laws
don't cover the Web (although a European Union representative
recently endorsed the U.S. proposal), so this is a new threat to
the public domain.

What would a webcaster's right mean? It would mean you couldn't
retransmit content put up by someone else on the Web without
permission. The proposal tries to indicate that the restriction
covers only images and sound, but it's not clear that a line can
be drawn between such content and other things, including text.
At any rate, the idea of extending the broadcaster's right to the
Web is bizarre and fundamentally out of sync with how the Web
works. The whole basis of the Web is making links; people don't
normally copy and retransmit material.

I take it back. Copying and retransmission happens on the Web all
the time. It's call caching, and it's crucial to the efficient
operation of the Web. Even if the webcasting treaty leaves a
loophole to allow caching, the treaty may hamper another
promising way of reducing the load on servers: chained downloads
that piggyback on intermediate nodes, the basis for useful
protocols such as BitTorrent.

The U.S. delegation is pushing for this strange new right under
the catch-all rubric of "harmonizing" the Web with broadcasting,
and, of course, that shibboleth of regulators, "technological
neutrality." But because equating Web distribution with
broadcasting is absurd on the face of it, one has to wonder what
is really on the minds of the large portals who put so much
energy into forcing this radical change on the public.

The light went off in my head after hearing about plans by
telephone companies to reserve parts of their internet bandwidth
for premium content, rather like cable TV. This has been widely
reported, and I blogged about it last December in an article
titled "Can We Still Say that Nobody Owns the Internet?"
(http://www.oreillynet.com/pub/wlg/8785)

Since then, on January 6, the Wall Street Journal reported that
the carriers are trying to enter into special deals with major
sites such as Google to offer those sites faster downloads for a
price--and the websites are responding positively. Depending on
your point of view, this is the natural next step in what you
could either regard as:

   1. A fair way to fund expensive network upgrades (except that
phone companies have already won major pricing concessions from
regulators, supposedly to fund those upgrades).
   2. Or, an unprecedented coup by those who own the pipes to
control what flows over those pipes.

So the telephone companies, which have also become major internet
providers, think they can intensify the commercial use of their
internet connections by providing their own content (or content
licensed from partners) at higher cost. Would it be too
far-fetched to think that web portals have a similar idea? If
they had their own premium content, they could essentially become
like cable TV satellite radio companies. On January 9, the Wall
Street Journal reported the next brick laid on the edifice, as
Google announced it would offer TV shows and videos for a fee
(restricted, to boot, by a DRM scheme).

I don't mind premium content at special prices (hey, O'Reilly
Media itself started a subscription service called Safari
[http://safari.oreilly.com/]), but I don't see why a special
webcaster's right is needed to provide it.

Somebody is whispering poisonous thoughts in the ears of the
portal owners. Suppose the next Wizard of Oz type of blockbuster
goes over your wires ... You could get out of the nerve-wracking
business of constant innovation and start to make an easy living
off of cash cows ... Just imagine millions of captive viewers
coming back to view your ads month after month. Expect to see a
further proliferation of DRM systems and the erosion of fair use
in the near future.

I believe that the resurgence of internet entrepreneurialism--the
wave of creative guys in lofts being bought out by the likes of
Google, Yahoo, and America Online--shows that innovation has not
run its course yet, and that we should keep competition vibrant.
That means no new, artificial monopolies on content.

The publishers who fund Safari are creating a successful business
with a modest investment and a legal foundation in standard
copyright. Other writers and artists may try to create their own
online businesses with even smaller investments, and may
therefore depend more on portals or "webcasters" for
dissemination. In the balance of control between artists and
portals, I vote for the current legal system that favors artists.

I recently sent the U.S. delegates to WIPO the following document
in a bid to ward off the webcaster's right--through the mechanism
of throwing the matter before Congress.

Submission to U.S. WIPO Delegation Concerning Webcast Rights

This paper calls for Congress to take up the question of
broadcast ownership rights on the internet, before they are
proposed to the World Intellectual Property Organization by a
United States delegation.


The proposed extension of broadcast ownership to the internet
represent a new feature in the dissemination of information, and
a potentially disruptive change. Such a far-reaching grant of
ownership should be subjected to particular scrutiny and
diligently checked for ripple effects, because it consists of a
sui generis right that can profoundly change the creation and
distribution of content. Therefore, Congress should be the body
in the U.S. to make the decision whether to request such an
ownership change.

To show the value of legislative deliberation, this paper will
examine the history of another recent, sui generis right: laws
restricting collections of information, also known as database
protection.

As with broadcasting and the internet, laws restricting
collections of information were proposed by large companies with
a valuable resource (CD-ROMs and other data listings used in many
research areas), and were accompanied by claims that the current
legal framework would eliminate the incentive to produce more
such databases.

The first victory for collections of information was in a
directive discussed in the European Community in the early 1990s
and formalized in a March 11, 1996 directive. It was subsequently
made law in a dozen European countries.

The scope and power of collections-of-information restrictions
grew as the directive went through EC deliberations. (Nowadays,
because the public interest sector in Europe is more organized
and can make itself heard better within the EU, this directive
might not have passed at all.) The original proposal was not a
sui generis right, but a modest reinterpretation of unfair
competition to cover commercial reuse of collections of
information.

But seeing an unobstructed road ahead of them, database
manufacturers managed to extend the collections-of-information
concept to the point where it gave them control over the reuse of
facts in their databases, which no other law or treaty had done.
The new right made it risky for users of databases to extract
large amounts of information from a database, which frequently
has to be done to generate statistics, check results reported in
papers, and do other forms of research.

Database manufacturers simultaneously pressed for
collections-of-information laws in the United States. During the
1990s and early 2000s, laws regarding collections of information
were introduced four or five times into Congress, and defeated
every time. WIPO noted the loss of support for database
protection and refused to take up the issue.

What happened to the momentum? Congress listened to both sides,
and realized that every ownership right in information represents
a trade-off. Restricting access and reuse of information must be
considered in light of the potential brake it puts on the
research required to produce the next information breakthrough.

This restriction could be justified only by evidence that there
is widespread copying, and that it is inadequately prevented by
other laws such as copyright and unfair competition. However,
there is no evidence that such widespread copying has taken
place.

As reported by James Boyle, the European Commission recently
conducted a study and reported that the presence of
collections-of-information laws had no measurable impact on the
production of databases. So the economic argument for
collections-of-information laws is weak. And this result is
easily to explain, because the most obvious kinds of copying
(burning a CD-ROM, for instance) are prohibited by copyright law.

Thus we can draw our first lesson from the
collections-of-information history: when a new and far-reaching
change concerning information rights is considered by a national
legislative body, this puts the change through valuable scrutiny
and allows, more than in non-elected international bodies, the
true interests of both information producers and the general
public to be heard. The national body provides more transparency
in deliberations; more time and opportunity for key players such
as non-governmental organizations and small, competitive
producers to express their points of view; and more of a sense of
responsibility toward constituents.

Another valuable lesson can be gleaned from the history of
collections-of-information laws: the danger of basing a legal
framework on the exigencies of a particular industry at a
particular time, especially in a fast-changing technological
environment.

Essentially, collections-of-information laws were conceived at a
time when most databases were distributed by CD-ROM. A few
services such as Lexis were online, but they had very restricted
audiences. The model for a collection of information was a fixed
set of data, sold as a tangible item.

By the time the first European countries passed their
collections-of-information laws, it was becoming apparent that
this model was obsolete. Very few people get information nowadays
by popping a CD-ROM into a computer; instead, they visit a
website and enter a search term.

There are several important impacts of this change on
collections-of-information laws:

    * Copying becomes more difficult (rendering the laws even
less relevant).
    * In regard to determining how much copying is too much, the
new structure of information makes it hard to determine how much
of the total collection was copied.
    * The frequent updating of information renders copies less
valuable, reducing the incentive for someone to profit by making
extensive copies.
    * Expiration times, which were designed to protect the public
by placing deadlines on the restrictions imposed by database
manufacturers, become moot because the manufacturers keep
updating the data.

Thus, technological and social change calls into question the
value and relevance of collections-of-information laws.

We can apply the same criteria to broadcasting laws on the
internet. These are narrowly tailored to particular uses of
information made by large news and portal websites, just as the
collections-of-information laws were tailored to the distribution
of data on CD-ROM.

But what new technologies will come along after the Web? Could
broadcast laws hamper their development and adoption? Who will be
the information providers and distributors in the next generation
of new media, and will they need or benefit from broadcast
protection? How will the locking up of content in a broadcast
treaty affect the dynamic and free-flowing innovation currently
represented by weblogs, wikis, podcasts, and other media yet to
be invented?

And what about the assumptions behind the broadcast treaty? Is
putting up a web page comparable to broadcasting a program over
television or satellite? Few people redistribute web content;
instead, they make a link to it.

However, useful applications exist for reducing the strains on
servers by sending data hop by hop between user systems,
piggy-backing on intermediate nodes to distribute streams and
large data transfers. This is just one example of potential
innovations that might be squelched by overreaching laws on
webcasting.

This issue calls for careful consideration and views from all
sides. Congress is the body most suited to undertake this
examination in the U.S..

For More Information

EFF material on webcasting and the broadcasting treaty in
general: http://www.eff.org/IP/WIPO/broadcasting_treaty/

Article by James Love, director of Consumer Project on
Technology, on the webcast treaty: "A UN/WIPO Plan to Regulate
Distribution of Information on the Internet":
http://www.huffingtonpost.com/james-love/a-unwipo-plan-to-regulat_b_11480.html

My article on collections of information: "The Sap and the Syrup
of the Information Age: Coping with Database Protection Laws:"
http://www.praxagora.com/andyo/professional/collection_law.html

Update on European database treaty by law professor James Boyle:
http://news.ft.com/cms/s/99610a50-7bb2-11da-ab8e-0000779e2340.html

Andy Oram (http://www.oreillynet.com/pub/au/36) is an editor for
O'Reilly Media, specializing in Linux and free software books,
and a member of Computer Professionals for Social Responsibility.
His web site is www.praxagora.com/andyo.