August 14, 2005  ·  Hilary Rosen

Hi. Larry has graciously asked me to guest post for him for the next week. We actually didn’t talk on the phone. We did what I most often do with Larry which was e-mail. Given how long I have known him by now, it is surprising how infrequently I actually talk with a real person rather than just communicate with him on-line. I frankly don’t know how he answers so much mail. I am well known to my friends and colleagues for just letting messages sit in my box for weeks unanswered. Is this a yes or no? That’s a quickie. Or does it require more thought, more substance, more planning, more scheduling, more feeling, a phone call, etc. So Larry asked a quick question. I gave a quick answer. And here goes.

There is my life these days, a panoply of choices that feel luxurious. Plus lots of time with my kids, twin 6 year olds.

Often people want me to spend time to interpret my 17 years at the RIAA. Or at least the last 5 of them. For the most part, I have little interest in doing that – until the book comes out :) – so when I do engage in the discussion publicly it is with an eye only towards the future. I am still engaged in the convergence of entertainment and technology. I still think about how consumers and fans interact with their stuff and what else we want to play with more or more easily. I consult with some companies who are investing in this space or advancing their positions in the market and I regularly speak with and to groups from all walks of the media and tech areas.

And I of course still love music. Actually, I love music more than ever. Because now when I listen to it, I am not thinking about the artist’s relationship with their band, the record company or the sales figures or the marketing disputes or behind the scenes gossip that everyone shared. I just listen.

So given that most of my time in Washington these days as an analyst and commentator is spent on politics and what I see as the colassal moral, legal and political failings of the Bush Administration and their allies, I am at a bit of a loss as to what to focus on this week at the Lessig Blog.

I wrote these pieces on THEHUFFINGTONPOST.COM about the Grokster decision but I didn’t really engage with comments or feedback given the other things going on politically at the time. I offer them here again and welcome a few constructive suggestions from Lessig Blog readers as to what you would like to hear from me this week. They are brief and may be trite compared to the large subject matter but they reflect a general mindset that I have long held. They have since been used against my former colleagues unfairly in a Senate hearing by some in the p2p community and that was annoying. It is always easier to pick a few sentences out of context rather than consider a full view. (that is why I can’t wait to see what the White House papers from John Roberts will say; and what the special prosecutor’s report on the Valerie Plame leak will reveal!)

I can’t respond to everything but I will try and come back regularly to engage in some of the issues that interest you. And remember what happens when even my friends expect back a really long email. Thanks for having me here.

http://www.huffingtonpost.com/theblog/archive/hilary-rosen/the-wisdom-of-the-court-_3259.html

and

http://www.huffingtonpost.com/theblog/archive/hilary-rosen/the-supreme-wisdom-of-not_3221.htm

  • John

    your links don’t work

  • http://en.wikipedia.org/wiki/User:Jamesday James Day
  • poptones

    Links that work are here and here.

    As a geek I am most interested in technology of all sorts, and particularly interested in computing technology. But as an artist I am most excited by the prospect of being able to, independant of the old school publishers, connect with an audience and perhaps earn a reasonable living.

    I think you would agree that the Kazaa ruling was almost a sure thing – after all, this was a company that deliberately located itself offshore, obscured the identities of corporate officers and distributed software that was known, the entire time, to be intrusive and hostile to those who used it (no matter how “friendly” a face it may have presented to those users).

    I am curious how you think this “new media” might reshape the creative arts over the longer haul? Will a practical and reasonably trustworthy DRM finally come into existence that would (at last) enable a p2p micropayment system to build up around the art forms that most lend themselves to internet distribution? Or will the need to have a physical, tangible offering lead to art forms like music and film and print becoming “free” but only so far as they assist the marketing of those tangible goods? If so, then doesn’t this mean Disney still “wins?”

    Technology can make us all aspiring George Lucaseseseses… but will the “free as in beer” market that so many feel is inevitable mean we all are doomed to rat race lives developing and marketing cheap plastic pop culture trash in order to generate an actual income from our creations?

  • http://en.wikipedia.org/wiki/User:Jamesday James Day

    Sadly, your wrting in The wisdom of the Court, Part 2 that “We won big” is entirely wrong. The established large copyrighted work distributors lost big from a decision which allows yet more time believing that resisting the future is a viable business model. It isn’t.

    Consider that we can expect the next generation of file transfer programs to include Tor or something comparable. They are also likely to promote legal content like Wikipedia or NASA video rather than setting themselvs up as targets for legal action. How the distribution and promotion industry plans to take legal action against end users when it’s guaranteed that something isn’t originating from the place it’s apparently coming from and when the final deliverers can’t possibly know what is being transferred is going to be quite a puzzle. Tor isn’t the problem, it’s just one embodiment of well understood technologies which make it hard to track data flows.

    Today, at major peering points around the world, it’s possible to send 360GB in one month for a dollar (rates from the UK IX). That’s about 5 full quality CD images or one complete DVD of content for one cent. With all due respect, I simply don’t believe that it’s impossible to construct a legal, copy protection free, high quality and profitable distribution model with such low underlying distribution costs.

    Yet even with such extraordinarily low legal distribution costs, the major distribution companies aren’t even seriously trying to compete with the P2P distribution channels. Instead they are hamstringing new consumer electronics devices and leaving high quality and copy protection free distribution to the marginal channels.

    Do you see any prospect that the major promotion and distribution players will get out of the way of technology and start using it to make money instead?

  • http://cv.arnists.com Árni St. Sigurðsson

    I would really like to know your views on BitTorrent, particularily with regard to an old post Cohen made. Some worries have been voiced as to how to interpret the legality of BitTorrent after Grokster. What do you think?

  • three blind mice

    ms. rosen, a very warm welcome to the lessig blog.

  • http://insomnia.livejournal.com Mark Kraft

    “what the consumer is left with now are a few legitimate services that offer some great content and lots more illegal P2P choices that offer ALL the content plus a healthy dose of spyware, bad files and unwanted risk.”

    But if you had a p2p app which was content neutral, didn’t make money off of copyrighted material, took steps against spyware and bad files, and, through increased anonymity, removed much of the unwanted risk (i.e. getting sued by the RIAA), then what’s left for the consumer to complain about? Sounds like the next generation of BitTorrent and a whole lot of other apps out there.

    A big part of the problem is that the music industry is monumentally ineffective at rewarding its own artists. For many of these artists, free exposure through free exchange of their work is a godsend. Ultimately, the larger artists out there are going to find themselves competing against an ever-expanding, quickly improving world of free content.

    If the artists want to compete effectively in such a future, then they should consider the merits of selling their users hard, tangible objects which they, the consumer, can legally do with as they will… not some sort of DRMed, shrinkwrapped, contractually-hobbled product.

    Even in a world of free digital music and movies, people still buy hard, tangible objects, and still display a great deal of loyalty and affection for their favorite artists, so long as they feel they’re not being taken for a ride.

  • corrie

    Thank you for making your political biases so clear. Now we know which saltshaker to reach for when reading your posts.

  • http://thunt.net thunt

    CATS: How are you gentlemen !!
    CATS: All your base are belong to us.
    CATS: You are on the way to destruction.
    Captain: What you say !!
    CATS: You have no chance to survive make your time.
    CATS: Ha Ha Ha Ha ….

    Can’t you see that the march of technology is unstopable?

    Your business model simply won’t survive this time.

    Don’t worry. The Music, Movies, and all other content which will be free, won’t mind the destruction of the middleman.

    read more rants: thunt.net

  • http://www.iamafish.org Stacy

    Rosen, thank you for guest blogging. Fabulous!

  • Rob Rickner

    OK, I’ve read the two articles, and they are relatively devoid of substance. Not really much to tear apart and discuss that hasn’t been rehashed a few dozen times right here. I’m happy to see your emphasis on the “consumer”. It’s nice to know the RIAA still knows we exist. I’m not really sure what you want to talk about, so I’ll throw out a topic.

    As for pushing towards the future, I have one question, “would you support a world where record companies no longer held any control over distribution?” I’m taking my ideas from The Future of Music and Promises to Keep. Record labels would still need to exist to cover promotion, booking, and help facilitate artist collaborations. Def Jux is a perfect example of this.

    Distribution would be covered by numerous technologies. Recond labels would become more like real estate agents – pushing the product into new markets. The actual transaction would be directly between the consumer and the band with various companies acting like paypal does for ebay transactions. Mere blind facilitation.

    Let’s face it: if you sell your music on iTunes, why bother giving 50%-90% of your profits to a record label? All you really need is a good publicist.

    No you think this model has any merit? In the begining, record labels were merely folks who had the capital to pay the pressing costs. Now that we have the internet, what function will they serve?

  • http://www.sbs-world.com Zenophon Abraham

    Welcome Ms. Rosen. It’s my sad responsibility to tell you that these legal victories will be short-lived at best as there seems to be a intertial pull toward obtaining, creating, and distributing free content.

    One way to counter this may be for music organizations to use the system of affiliate marketing to encourage website owners to make money from the process of file – sharing. If this is advanced, we may see a day where the majority of sources have this system.

    My point is that the market and not just law will determine the future of file sharing.

    As to what to talk about..Tell us about you. Who are you, really?

  • poptones

    Ultimately, the larger artists out there are going to find themselves competing against an ever-expanding, quickly improving world of free content.

    The only “mainstream artist” the web has given us to date is Johnny Knoxville… and what did he do? First chance he had he signed a contract with “the man,” got a show on a Viacom network, and used that infamy to springboard into movies.

    The internet is a great enabler, but this notion that you “own” bits just because they pass through your computer is about as absurd as the notion you own the seas because you drink water. People have to eat and people want “stuff.” An artist could fill the world with “free music” but that ain’t likely to be accepted as currency when that artist orders a big mac and fries.

    The internet has been around in reasonably mainstream fashion a decade now and there are more people with broadband then even had internet access just a couple of years ago. So where is this rising tide of high quality “free content” so many of you keep refering to? I personally walk that walk more closely than 99.99% of you, and I have yet to see it.

  • http://www.ibiblio.org/studioforrecording/ Tom Poe

    Ms. Rosen: We have a quote on our SONG STORM project:

    “Wait. There’s “Hollywood” or “the labels” on the one hand, and then there are “artists” on the other. They are not the same.”
    Larry Lessig from:
    Peter Wayner Interviews Lawrence Lessig
    Posted by timothy on Wed Jan 16, ’02 12:15 PM
    from the names-are-familiar dept. on /.

    Disregarding the context in which this quote occurred, do you have a position or opinion or belief that you follow, today, as to the above issue? Also, is your position or opinion or belief that you follow different than say, eight years ago?

  • ACS

    Hello All

    Ms Rosen do not be swayed by the text of these heathen currs. The RAII was correct in pursuing Grokster given the unprecedented commercial advantage and gain that it recieved from infringed materials.

    Also do not worry of the arguments for free content. As long as there is a public policy in favour of one controlling ones own work there shall be avenues to control it and prevent others from doing the same without licence.

    Surely you must agree that Sony has been put in context. Value neutral copying has been taken from observation of what is being copied to the means of the copying. The intent, the authorisation, the motives of the person behind the technology and not the technology itself shall hold sway.

    Thank god now vicarious and contributory copyright infringement are decided on a legal basis and not on a technological one.

    I guess the point is that copies will have to show a public policy in support of allowing peer to peer or similar file sharing displacing artist rights rather than relying on the presumption that technological innovation is in itself a public policy motif.

    ACS

  • http://www.darknet.com JD Lasica

    Ms. Rosen, let me echo some of the other voices here in extending you a courteous welcome. (I’ve got a 6-year-old too! Twins? Oh my!)

    In the days ahead, I’d love to hear your thoughts on two subjects:

    - How did you come around to embracing Creative Commons, and do you see any evidence that the RIAA and MPAA share your enthusiasm?

    - What are your thoughts (expressed in some of the posts above) about the advent of grassroots media, and how these expressions of personal media (podcasts, Magnatune, etc.) will play with the traditional music business in the years ahead?

    Take a look, for example, at Ourmedia.org, a free, nonprofit grassroots media community. (I’m the co-founder, and Larry’s on our Board of Advisors.) Any thoughts about how, or whether, the music industry should be working or collaborating with sites that nourish bottom-up creativity?

  • http://thunt.net thunt

    Google’s digital library on hold

    Google (GOOG: news, chart, profile) has shelved its ambitious library project — to scan every book in the world — for three months to allow copyright holders time to opt out of being scanned and included in Google’s index.

    The scanning of books has been suspended so that “any and all copyright holders can tell us which books they’d prefer that we not scan if we find them in a library,” said Adam Smith, Google’s print product manager, on Google’s blog.

    But the Association of American Publishers says that the opt-out option is not good enough.

    “The rights of copyright owners, like those of patent owners, are established within an opt-in framework, rather than an opt-out framework,” said Allan Adler, vice president of legal & government affairs at the trade association, in an e-mail.

    “This means that, subject only to specific limitations established by federal law, the rights of a copyright owner are exclusive to the copyright owner and cannot be exercised by anyone else unless and until the copyright owner has opted in to such an exercise by a prior grant of permission.”

    Since launching Google Print nearly a year ago, Google has relied on fair use to defend the legality of its activities, attorneys said.

    Google’s plan to halt this project comes nearly a year after launching Google Print back in October 2004, calling it a way “for publishers to make their books discoverable by the millions of people who search on Google.”

    The problem with an opt-out framework is that “anyone and everyone” would be able to “freely reproduce and distribute copies of a copyrighted work unless and until the copyright owner becomes aware of the activity and objects to it,” according to Adler.

    It is still unclear how much money Google can make with its ambitious library project, but apparently making money has been the least of its problems.

    read more rants: thunt.net

  • R

    Thanks for writing on Lessig’s blog. Sorry to see that so many commenters are a bit…uh…nutty.*

    Semi-arts related questions:
    Do you read webcomics, and what is your opinion of different revenue models used by webcomic artists? (Subscription vs t-shirt sales vs print publication vs advertising)

    Have you tried iRate? (CC music autodownloader, essentially.) Do you like it?

    *ok, obsessively focused on their own point of view or downright hostile.

  • Anonymous

    I had a couple comments.

    1. Your two articles describe P2P software as being produced by the “tech industry.” But you’d have to really broaden your definition of “industry” to cover the reality that an important source of this software is people writing it for the fun of it. One might say, hobbyists. In fact, the BitTorrent protocol and its original and I believe most widely used client were written by a guy in his spare time. So even if you get rid of all the offenders like Grokster — and they did have it coming to them — you do nothing to eliminate the P2P networks. It takes zero capital to produce this software.

    And, on a related point, I hope the world knows that P2P networks, BitTorrent in particular, are used extensively for perfectly legitimate purposes.

    2. I’d really be interested in hearing more from your perspective on the reluctance of the labels to release more songs to download services like iTunes. It baffles me. I’ll bet the RIAA has done a survey to see what percentage of the totality of its members catalogs are available on the P2P networks, and I’ll bet anything the answer is 100%. So what do they have to lose? Anything they release won’t add to the availability of illegal downloads, where everything is already available, but it will enable people with the morals to resist illegal downloads to buy their music.

    Seen from this perspective, DRM really does not help anything. I fear they are fantasizing a future in which all new releases, including CDs, are locked up with DRM that will prevent copying. But it only takes about five seconds of thought to see that a technical means of preventing copying is an impossibility.

    So I’d really be interested to hear your insights into what kind of thinking is holding them up from making their full catalogs available.

  • http://www.jzip.org/ adamsj

    This isn’t exactly on-topic, but I’d be curious what you think about Garth Brooks’ new record label: http://www.oreillynet.com/cs/weblog/view/wlg/7624#Garth_Brooks