So yesterday the RIAA released a “scared-straight” film aimed at illegal filing sharing by college students. Download that O.A.R. tune, the RIAA says, and we’ll throw you in jail, have you drummed out of school, and generally ruin your life. I swear that I’m reporting this straight; it’s hard to convey the sense in which the RIAA’s film manages to both patronize and fear-monger, often in the same sentence. The Electronic Frontier Foundation’s Jason Schultz manfully gives it a try.

In a coincidence of cosmic proportions, yesterday Weird Al Yankovic resurfaced with what to me may be his magnum opus, “Don’t Download This Song”. My favorite line: Cause you start out stealing songs/then you’re robbing liquor stores/and selling crack/and running over schoolkids with your car.

Downloading as a gateway drug. Hysterical (in both senses of the word).

Here are some pics of driving shoes. First, the original Tod shoe:

Now, some “copies” from Bacco Bucci, Minnetonka, Ecco, E.T. Wright, and Ralph Lauren …

Notice that these shoes are all similar (moccasin style, sole that runs up the back) but they are also all different. The Minnetonka shoe is a kind of backwoods version — maybe we could call it a snowmobile driving shoe. Relatedly, the Ralph Lauren shoe seems to be aimed at the owners of large cigarette boats. In fact, I think the shoe would fulfill its purpose better if Lauren had applied a large glittery gold “$” to each toebox. The important point is that all these shoes are variations on a particular design theme, which was originated by Diego Della Valle of the Tod firm.

If you read my previous “Piracy Paradox” post, you know that copyright law doesn’t apply to most fashion designs, including these driving shoes. But what if it did? Would the Bacco Bucci, Minnetonka, Ecco, E.T. Wright and Ralph Lauren shoes be judged to infringe the Tod original?

I think they probably would. Copyright law gives to copyright owners the right to prohibit not only verbatim copying, but also the production of any work that is “substantially similar” to the preexisting copyrighted work. What is the major design element in the driving shoe? The sole that climbs the back of the shoe. Appropriate that, and mix it with the other elements of the shoe’s design (i.e., the moccasin-style upper portion) and you create a shoe similar enough to very likely land you in copyright trouble.

Which is a great example of why copyright law and fashion do not — and should not — mix. The driving shoe was a trend in mens’ shoes in spring 2005. In May of 2005 I went shopping at a Nordstrom in Paramus, NJ. In that Nordstrom I saw a table containing at least a couple of dozen driving shoes, all set out in a nice circle around the perimeter of the table. The fashion industry and the retailer were trying to send me a message. What was it? That at the moment driving shoes were “in the mode”, and that I might wish to pick one from among all the variations that suited my tastes and my wallet.

I bought the Eccos. They are a bit dowdier than the Bacco Buccis, but cheaper and more comfortable. Suitable for an academic.

If copyright law governed the fashion industry, would I have seen that table of driving shoes? It’s hard to definitively address a counterfactual, but my suspicion is the thriving fashion industry we see now depends on the absence of copyright. Copyright’s presence would, in my view, hurt not help.

That brings me again to H.R. 5055, a bill currently pending in Congress that would extend copyright to cover fashion designs. For all the reasons I’ve explained here, and that I lay out at greater length in a paper I’ve written with my friend and colleague Kal Raustiala, H.R. 5055 is misguided. The fashion industry’s designs have never been covered by U.S. copyright, and the industry is doing great. Let’s keep it that way.

Shoppers of the world, unite!

Bob Dylan is a provocateur, a habitual obfuscator, and a bit of a crank. That said, he’s also that rare and precious thing, a genuine artistic giant. His music will endure. And that makes his comments on illegal downloading, reported just now, particularly noteworthy. Asked whether he approved of illegal downloading, Dylan cut to the chase: “Well, why not? It ain’t worth nothing anyway.”

The article I’ve linked is a selective reporting of Dylan’s comments — I would love to see a transcript. But judging from the statements reported, Dylan isn’t making some dumb old man argument about the quality of today’s music. Rather, he’s complaining about the quality of today’s recordings — that is, the sound quality, the audio fidelity, of the music laid down on CDs and downloads.

To which all I can reply is thank you thank you thank you thank you thank you for noticing what should be obvious. CDs are an ancient (approx. 25 yrs.) digital technology, and recordings reduced to the CD standard, devised at a time when processing power was expensive, often sound dead, airless, flat. Dylan notes this in his comments, stating that the songs on his latest album “probably sounded ten times better in the studio when we recorded ‘em. CDs are small. There’s no stature to it.”

Well, so much for CDs. So along come downloads and what happens? Sound quality goes down! The bitrate at which most downloads are encoded provides near-CD-quality sound, which is a bit like eating “near-canned-quality peas”.

Why does this matter? Because it points to one of the ways in which the music industry is partially responsible for its own piracy problem. I’m sure there is demand out there for higher quality audio. Does the industry scramble to provide it? No. The industry didn’t exactly rush to support the DVD-audio and SACD standards by releasing recordings in those higher-fidelity formats, and perhaps that’s understandable given the rate at which consumers are moving away from physical media in favor of downloads. But why doesn’t the industry get behind higher-quality downloads? In a competitive market, record labels should be competing on both price and product quality — a dimension that includes audio fidelity.

Oh, wait a minute …

On the same day (August 21) that Federal Trade Commission Chairman Deborah Platt Majoras said there is no evidence to show the broadband market is failing, Verizon and BellSouth each announced they were going to add surcharges to the bills of subscribers of their broadband service. Coincidence? Cosmic irony? The mind boggles at the disconnect between economic theory and the reality.

The typical explanation for intellectual property law goes something like this: Creating new books, films, drugs, songs, etc. is expensive, but once the nifty new thing is produced, copying is cheap (or, in the case of copying done over the Internet, free). Unrestrained copying robs creators of the means to profit from their works — the copyist can always outcompete the originator. So we need IP protections to make sure that the original author or inventor has control over copying. This way, authors and inventors will be properly motivated to create.

That’s a sensible theory, but it doesn’t always translate in the real world. Consider the fashion industry, a creative industry larger by far than the film, recorded music and book publishing industries. The logos and labels that adorn apparel and accessories are protected by trademark law. But the designs of the garments themselves – the cut of a sleeve, the fit of a bodice – are not. Copyright law does not cover most fashion designs because clothing is a “useful article”, a class of items that falls in the jurisdiction of patents and not copyrights. But patent law is almost irrelevant to fashion designs, both because the patent standard of “novelty” cannot be met by most designs, and for the practical reason that the patent application process proceeds too slowly to be meaningful for most fashion designs, which live a brief commercial life and then disappear.

So current U.S. IP law does little to protect fashion designs, and yet the fashion industry is doing quite well, thank you. How can that be? Take a look again at the typical explanation for IP law that I set out in the first paragraph of this post. Anyone who shops – even us men – cannot help but notice that there is lots of copying (aka, “piracy”) of fashion designs. And yet the stores are full of innovative new designs every season. We have a puzzle.

My colleague Kal Raustiala and I have written a paper trying to explain how the fashion industry innovates in a low-IP environment. Our claim is that copying doesn’t hurt the industry much, and indeed probably helps it. For our complete account, read the paper. But here’s a quick summary:

The fashion industry profits by setting trends in clothing, and then inducing consumers to follow those trends. This process leads us to treat clothing as a status-conferring good to be replaced once the fashion changes, rather than as a durable good to be replaced only when all the buttons fall off. Trend-driven consumption is good for the fashion industry, because it sells more clothing. (Whether this is good for consumers, or for society as a whole, is a different question, and one we don’t address in our paper.) In any event, the fashion industry’s ability to create trends is based on designers’ relative freedom to copy. It takes lots of variations on a particular attractive theme to make a trend – and generally, we’re talking about variations on a recognizable theme, not exact copies. So in spring 2005 we get dozens of variations on a particular style of mens’ “driving shoe”. At about the same time we find hundreds of variations on the “bohemian skirt”. In any given season, we see designers working on similar design themes that define the current mode. All the clothing is a bit different, but it’s also strikingly similar. (Take a look at our paper for pictures that give examples of trends.)

So what does this matter? Well, if the law prohibited fashion design copying, then the fashion industry would have a much harder time creating and responding to trends. U.S. copyright law prohibits not only verbatim copies, but also any work that is “substantially similar” to a preexisting copyrighted work. So if copyright law were extended to fashion designs, the unique innovation culture of the fashion world might come under intense legal scrutiny. Designers will give way to lawyers, as every season’s new collection is carefully examined for potential legal liability. Young and unknown designers will be worst off, as they will not be able to afford the lawyers’ fees that will be part of the new price of admission to the industry. And an industry that has been a thriving locus of both unbridled creativity and profit may suffer.

Sound bad to you? Then please write your Congressman and tell him/her to oppose H.R. 5055, a bill currently pending before the House which would extend copyright protection to fashion design. I’ll write more about H.R. 5055 soon, but in the meantime, here is the congressional testimony that Kal Raustiala and I prepared for the hearings on the bill.

An interesting article from today’s NY Times on the variety of ways you can get into trouble web surfing at the airport or shopping mall.

Want to do some online shopping while waiting for that delayed flight? Use a VPN.

Last Friday, a District Court Judge in Florida denied the request of the National Association of Broadcasters and Echostar Communications to stay a decision of the 11th Circuit Court of Appeals that requires Echostar to stop providing “distant” network TV signals to hundreds of thousands of subscribers nationwide. Several broadcast networks had sued Echostar, claiming that it had violated 17 USC Section 119, which gives satellite companies such as Echostar a compulsory license to import network TV signals from outside a household’s viewing area if that household is deemed to be “unserved” by a local TV station. The law basically has two purposes: 1) to ensure that those viewers who cannot receive good network TV signals can receive them and 2) to protect local broadcasters (and their advertisers) from the competition distant signals might provide.

The 11th Circuit found that Echostar engaged in a “pattern and practice” of providing distant signals to those who did not qualify as unserved. As a result, Echostar was given what amounts to the statutory death penalty - the Court ruled that they must cut off distant signal service to all of their customers who received it, including hundreds of thousands of customers to whom they were legally providing service. Echostar and the NAB asked the District Court that was to issue the penalty to delay the final judgment until September 11 so that the two sides could reach a settlement. While courts rarely deny such a joint request, it likely reflected the court’s anger at Echostar’s business practices and litigation strategy.

I don’t want to condone the behavior that got Echostar to this point - the court rightfully came down on the company hard for playing fast and loose with the law. But in the age of 500 channels, Slingbox, the Internet and cries of “regulatory parity” from all sectors of the mass media, including broadcasters, it might be time to reexamine this law to see if it still makes sense. I grew up in New York and still am a diehard fan of its local professional sports teams. Why shouldn’t I be able to watch New York’s Channel 2 on Sunday to catch the NY Jets football games? Or catch Chuck Scarborough and Sue Simmons (WNBC-NY) instead of Jim Vance and Doreen Gentsler (NewsChannel 4 - DC)? If my local station wants my attention, let them compete for it - rather than rely on protectionist laws that limit viewer choice.

Unfortunately, the distant signal law is only one of several that shield the broadcast industry from competition. The first, and perhaps most important, gives them valuable public airwaves for free - supposedly in exchange for programming that serves the community. The public has been getting the short end of that deal for decades now. Then there are the “must carry” laws, which force cable operators to carry local signals. Satellite providers are subject to a similar law - if they carry one local station, they have to carry all of them.

Broadcasters’ effort to obtain government protectionism does not stop there - witness the NAB’s support of the WIPO Broadcasters Treaty which would give US broadcasters a fifty year intellectual property like right in their signal. And while they are holding off for now, broadcasters are grumbling about the Slingbox, which allows viewers to watch their local stations remotely on a computer. What local broadcaster could possibly dislike a technology that permits their local viewers to watch their programming and advertisers anywhere and at anytime?

In the short term, there will probably be a legislative effort to ensure that those Echostar-served households that were legally entitled to distant signals continue to receieve them. While we would favor any result that protects innocent consumers, we hope that Congress might take the opportunity to question the necessity of the distant signal law and other laws that protect broadcasters from competition.

Last week I spoke on a panel at the National Conference of State Legislators’ conference entitled “Copyright and Theft in a Digital Age.” I suppose I shouldn’t have been surprised at the title, since the conference took place in Nashville - ground zero for the music industry blaming digital technology and networks for their woes. But I have to admit I was a bit shocked at the description of the panel, which was this:

New technologies provide the opportunity for new kinds of crimes, especially in the entertainment world. The latest examples include internet pirating of music, movies, software and video, theft of Internet and cable services, and surreptitious use of camcorders to videotape movies and performances. The challenge for state and federal policymakers is to dtermine if current laws are sufficient to protect rights in a fast moving digital age.

I don’t think I’d ever read such a negative, backward looking view of technology, so to open my talk, I decided to tell the audience how I might have written the description of the panel, which I would call: “Copyright and Technology: How Best to Balance Creativity, Innovation and Consumer Rights?”

New technologies provide the opportunity for new kinds of civic engagement, access to education, e-comerce, social networking, individual creativity and artistic expression free of big media gatekeepers. The latest examples include e-government, online distance education, MySpace, YouTube, iTunes and the millions of singers and songwriters who produce and sell their music online. The challenge for state and federal policymakers is to determine if current laws are sufficient to protect citizens’ rights to engage in free expression and their rights as consumers to enjoy the digital media that they buy and use lawfully.

So what should a state legislator do about copyright and digital technology? Personally, I don’t think they have much of a role, if any, but understanding that lawmakers want to legislate, I made two suggestions:

1. Pass laws that protect consumers against “copyright abuse” by corporate copyright holders, for example, a requirement that copyprotection on digital media be disclosed.

2. Pass laws that protect artists from anticompetitive practices of record companies, for example, a limitation on the length of personal services contracts (California exempted sound recordings from this 7 year limitation and efforts have been made to repeal that exemption).

My suggestions did not go down very well with Kumar Barve, the Majority Leader of the Maryland House of Delegates. He insisted that state legislators had to do “something” about the fact that it is easy to make digital copies of music and movies. When I asked him what consituency in Maryland he was trying to serve, he lectured me that the House of Delegates “does not make laws just for the people of Maryland.” Hmmm. His constituents might have something to say about that.

I’m in my office, listening to “Left Side Clouded”, a song from The Sea & Cake’s 2003 release, “One Bedroom”. Great song, and I think I could manage to play it on my guitar. I’m looking now on ultimate-guitar.com for a tabulation. Nothing. So I’ll have to make one myself, and once I’m finished I’ll post it to ultimate-guitar.com so others can use it. Can I do this?

The major music publishers and their representatives at the Music Publishers’ Association say I cannot. They claim that guitar tabulations are “derivative works” — i.e., works that “recast, transform or adapt” pre-existing copyrighted works — and that they, as copyright owners of the original music compositions, have the exclusive right to make or authorize these tabulations.

Is this argument correct? Probably. Guitar tabulations are nothing more than a translation of sounds into musicial notation. As such, they are almost certaintly derivative works for the same reasons that a translation of a French-language book into English would be. So if I make my tabulation and post it to the web, I might be liable for a copyright violation — and that can mean up to $150,000 for each song I tabulate. Yikes.

Even if my humble guitar tab is infringing, might I possibly escape liability under the fair use doctrine? I wouldn’t bet on it. The copyright law sets out a multi-factor test for fair use — you can review it here. I won’t go into all the details, but because the guitar tab sites are mostly commercial (i.e., they use the tabs to attract surfers to their ads) and because some users probably consume free tabs instead of paying for the publishers’ authorized sheet music, fair use is unlikely to protect me (or, more importantly, the web sites that distribute tabs).

So that’s the legal analysis from my perspective. I’d be interested in your comments — especially if you disagree! But I’d like to end this post with a word about the deeper and more important issue that this guitar tabulation copyright dispute illuminates. Think again about “Left Side Clouded”, that song by The Sea & Cake that I want to tabulate. I think it’s a great song, but most people don’t — it’s not a hit, even if I like it a lot. Most songs (and indeed albums and bands) are like that — in general, people are indifferent or unaware, but a few people are real fans. And it is the real fans who do the guitar tabulations for all the non-hits. If the publshers use copyright to shut this down, the result will not be 99-cent downloadable tabulations for thousands and thousands of songs. The result will be 99-cent downloadable tabulations for a relatively small number of hits — for only those songs for which enough tabulations can be sold to make the cost of preparing and presenting them worthwhile to the publishers.

That strikes me as a bad outcome. Anyone have a different view?

Hello to all the Public Knowledge blog readers. My name is Chris Sprigman, and for the next two weeks I’ll be blogging on the PK site (thanks to Gigi Sohn and Scott Burns for the invitation!). As you can see from the box to your right (the one featuring my unsmiling mug) I work as a law prof at the University of Virginia. My work focuses mostly on intellectual property and competition (aka antitrust) law. I am interested in how these legal rules affect innovation and the deployment of new technologies. So my academic interests are closely aligned to the work that Public Knowledge does in the real world.

Enough with the intro; let’s get down to business. This is a “tabulation” of a great tune, “You and Whose Army”, by the much-loved and possibly soon-to-be-lamented U.K. band Radiohead. Untalented guitarists like me use these tabulations in a vain attempt to play like Jonny Greenwood.

Guitarists often produce their own tabulations, and a bunch of websites have appeared that collect and distribute these tabs, gratis. But now the NY Times (subscription required) reports that the major music publishing companies are threatening copyright lawsuits against these sites, claiming that the tabulations are unauthorized “derivative works”. A number of the sites, having received threat letters from the music publishers, have shut down.

What do we make of this? Does copyright allow a song’s owner to prevent a musician from using musical notation to write down what he hears? What about if the musician posts his tabulation to the web?

Some thoughts on this after lunch.