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On the heels of Universal’s threat to sue YouTube for copyright infringement, Warner Music has taken up a different strategy in dealing with the burgeoning media outlet (and, notably, my current number one method of procrastination). Warner recently struck a deal with YouTube, opening its library in exchange for a share of advertising revenues.

Interestingly, the relationship between Warner and YouTube began with the creation of a “branded channel” on YouTube designed to promote Paris Hilton’s first musical endeavor. It pains me to say it, but something good has finally come (very indirectly) from Paris Hilton and her bulldozer press agentry.

Daniel CorbettĀ 


According to the Chronicle of Higher Education, the University of California has struck a deal with Google in which the university will provide at least 2.5 million volumes to Google for scanning. Said one of the deal’s brokers, Daniel Greenstein, of the California Digital Library,

“I understand [Google’s] ends are commercial,” he said. “But it’s one of these things where their business model, their interests, and our interests align around public access for the public domain forever and for free.”

On a Google-related note, last night my friend Matt asked me the inevitable question: “So, I’m taking bets– when do you think Google will become sentient?”

Daniel Corbett

      Copyright 101 question: Dan, an aging but venerable author asks Morgan, a fellow author to help him with a book. In a correspondence, Dan says to Morgan, “Here’s a little sketch but make whatever you want.” Dan turns around to sue Morgan for infringing– er– himself?

      Now take and apply it to an even more contentious arena for IP– the world of glass sculpture.

      That's the story behind a recent copyright suit being brought forward by Seattle glass sculptor Dale Chihuly. Chihuly is suing a longtime collaborator for putting out glass sculptures that too closely resemble his postmodern, sea-inspired works.

      There are two key problems with this suit: 1.) the quotation from the hypothetical is an direct quotation from the plaintiff to the defendant in a correspondence between the two. Chihuly stopped blowing glass 27 years ago and has since relied on other artists to carry out– obviously with varying degrees of guidance– his visions (hat tip to Prof. Michael Madison). 2.) How easy is it to declare ownership over abstracted, nautical themed glass sculptures? There is a reason copyright has been slow to show itself in the art world. As the defense attorney in the case put it: "If the first guy who painted Madonna and Child had tried to copyright it," Mr. Wakefield said, "half of the Louvre would be empty."

Daniel Corbett

    The new X-Men? Disappointing? How can it be? In any case, I hope my answer is at least somewhat fulfilling. First, I have to echo my support for your unflinching stand on free speech in cyberspace. The Electronic Frontier Foundation out of San Francisco has been the vanguard of the "bloggers' rights" movement. Why should, within reason, companies rein in what their employees say and do in their private lives?

    But it's this "within reason" caveat– painful but necessary– that comes around to haunt our theoretical defense of Internet free speech. Nondisclosure agreements are the lifeblood of many companies, especially in an idea-based economy. But where do we draw the line? Is blogging publishing, per se? What, exactly, is a "trade secret?"

    These are thorny questions, to be sure. And I can't provide clear answers to them because so much (of life and of law) is contextual. In response to your idea that a Cleveland desk jockey has little in common with the radical, the cafe owner, and the stablehand– I agree partially. You're right that these disparate people have little in common; and even though they can connect via the Web, it doesn't mean they will. This view has dominated some arguments about whether blogging is "publishing" in a meaningful sense. Like many debates before it, however, technology has drastically changed the terms of the debate. Through aggregators and blog-specific search engines, more people are accessing more blogs than ever before. And they don't need to know where to look– just what they're looking for.

    There's a lot I can and will blog about in law school this fall. It's practically expected of me. But I would dare say there are some things about your job that you may not be allowed to share on this blog. Call it a cop-out, but I think the answer here is balance– a case-by-case approach that reconciles the privacy, property, and free speech rights of employer and employee.

Daniel Corbett

      For some it's cause for alarm: the public tarnishment of a corporate image. But for some it's simply the digital water cooler: the free speech of employees in a connected world. Like it or not, workers everywhere are taking to the Web and taking their work experiences with them. From the New York Times:

"Most experienced employees know: Thou Shalt Not Blab About the Company's Internal Business. But the line between what is public and what is private is increasingly fuzzy for young people comfortable with broadcasting nearly every aspect of their lives on the Web, posting pictures of their grandmother at graduation next to one of them eating whipped cream off a woman's belly. For them, shifting from a like-minded audience of peers to an intergenerational, hierarchical workplace can be jarring." 

      This raises an interesting dilemma for as the Internet Generation descends on the working world. More and more, employees are getting the boot for blogging about their company's propietary information. It may be malicous. It may be cathartic. It may (at least to the bloggers and their readerships) be quite funny. But the fact remains, for better or worse, we are increasingly interconnected. And when a boss does a Google search for his or her company, and an employee diatribe comes up– it's not a pretty picture.

      Or is it?

      For many, getting fired for blogging is the best thing that could happen to them. For Kelly Kreth, a marketing director in New York, who lost her job for blogging about employees, she couldn't have made a better career move: "It led to me opening my own business and making triple what I was making before." A writer who was canned for writing about his job at Comedy Central is converting his experience into a book. And workplace tell-alls like "The Devil Wears Prada" and "The Nanny Diaries" are slated to hit the big screen this summer. It seems that behind this cloud, a market is emerging.

      But what will be the social effect of these events? Will companies, seeing green, find a way to make blogging work for them? (Remember Wal-Mart had a mini-scandal involving information it provided Wal-Mart-friendly bloggers.) One thing is for sure; however, companies are going to take notice of blogging. Right now, only 8 percent of HR executives in a survey said their companies had policies about blogging. Given the controversy it is generating, I think we're bound to see some fences put around the digital water cooler.

Daniel Corbett   

    Via Michael Madison, here's a bizzare story about the latest campaign against pirated intellectual property. Yes, you read it right; the MPAA and others are using dogs trained to sniff out DVDs and CDs as a way of stepping up their efforts. As you might have expected, there is of course a "Keystone Cops" element at work here. Right now, any CD or DVD will trigger a response from the dogs. The copy of Frampton Comes Alive in your suitcase is just as likely to send customs your way as is a caché of 400 bootlegged DVDs. Great work, folks. Great work.

Daniel Corbett

On his blog, Sivacracy, NYU professor Siva Vaidhyanathan has linked to a study that shows the p2p does not adversely affect CD sales.

The study, which opens by admitting that "[r]ecent technological and market forces have profoundly impacted the music industry" eventually concludes that this impact does not include a decline in CD sales. Interestingly, the study finds that p2p has lead to a decrease in songs' chart survival.

I believe this insight is just one more example of how p2p is supportive of, not antithetical to, free markets. That songs have a shorter shelf life means p2p has created more competition among artists. That CD sales have not gone down means that everyone is better off.

Daniel Corbett

It seems to me that this debate has a very simple foundation. Thought experiment: wipe "the industry" from the equation. Music distribution is simply a matter of artist-to-consumer distribution. In this world, the ethics of file sharing is dependent on the attitude of the artist himself (I use "himself," vice "himself/herself," because "himself/herself," while technically correct, is ugly and clumsy.) Where he approves of free or dirt-cheap distribution of his music, such sharing is ethically acceptable. Where he does not, it is not.

But the addition of the mediator of "the industry" to the equation complicates things immensely. The companies who own rights to music have a legal right to control how that music is distributed. But besides the ethical good that comes from obeying the law regardless of one's feelings toward it (which is a dubious position…it certainly hindered the civil rights movement in its nascent stages), it does not seem like any real ethical good inheres in abiding by the recording industry's dictates regarding music distribution, given that the industry cannot hope to speak for all the artists it represents (in whom, remember, the music in question originated).

Bottom line: I think I'm probably ethically obligated to abide by the wishes of the musicians in question. The problem there, of course, is that–Metallica aside–no one really knows what any artist thinks of fans trading his music for free. Is it stealing, or is it welcome publicity?

I'm still no closer. And, seeing as how my higher faculties have failed me, I suppose I've no choice but to give in to my hindbrain, which is constantly exhorting me to TAKE AS MUCH AS I CAN.

Please share insights.

Morgan Hubbard

Morgan, excellent questions. To bring you back from the world of Truman and into the tecnnolibertarian fold, here are some of the principles listed on Free Culture’s website:

“We won’t allow the content industry to cling to obsolete modes of distribution through bad legislation. We will be active participants in a free culture of connectivity and production, made possible as it never was before by the Internet and digital technology, and we will fight to prevent this new potential from being locked down by corporate and legislative control.”

OK, first let’s do some unpacking. What do we mean by “obsolete modes of distribution”? I’ve mentioned it before, but I think there’s a nice analogue to the Sony decision of 1984. So let’s look at it through this historical lens. In the 1980’s people “pirated” television shows by recording them to VHS, sometimes amassing private libraries of considerable size for a time of analog technologies. The industry of course cried “foul” and wanted to put home recording to a halt. They saw it as outright theft and a threat to the film industry. But people kept recording. And in roughly a decade there was already emerging vital markets for video cassette sales and rentals. The same thing may well happen with file sharing. The EFF, as I mentioned, makes a convincing case for a world of “legal downloading.” Their idea of “voluntary collective licensing” is already being picked up by various services.

To speak to the ethics involved, I have to throw some questions back at you. Can we ever fully know the ramifications of our actions? And if we can’t should this stop us from choosing what we believe to be the right action? I believe we are so often saddled with the vision of our current situation that it is hard to make claims either way about the nature of right and wrong. (This is in no way to situate myself as a relativist; I do believe in many things are right and wrong across time and space.) Because what might seem like “stealing” today may become a perfectly legal act in the future.

Daniel Corbett

So does the free culture take on music downloading put ethics at its center? I hadn't thought of it in that light, but ethics must weigh in. Unhindered culture not only produces prodigious material good, but participation in free culture is probably itself an ethical good in the way it [blah blah autonomy blah human spirit blah]."

But you haven't yet addressed the issue of why record company rentention of/monopolies on copyrights are bad things. That is, as it stands my downloading contravenes industry law, which is illegal and maybe slightly immoral. But for my "piracy" to bypass the 'morally neutral' stage and qualify as civil disobedience, you free-culturites must articulate some positive thesis about the good that will come of breaking such copyright monopolies. I think I can see how it might go, but you're the expert(s).

What I'm asking for, I suppose, is a statement of basic free culture principles, adapted to the music debate. If I had finished at OU I would gladly have enlisted in the Free Culture ranks. U-Maryland has no such group, so my libertarian impulses were stymied by my thesis on Truman. I'd like to get caught up.

So, if you please…

Morgan Hubbard

July 2018
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