Copy Grounds

Adrian Johns’s Piracy: The intellectual property wars from Gutenberg to Gates goes a long way toward contextualizing contemporary legal battles over copyright in the digital age. His research provides us with a detailed and insightful history of the debates surrounding intellectual property. Adrian’s work has been invaluable to my own understanding of the relationship between technological development and intellectual property law. We were very fortunate this semester to have Adrian answer a handful of student questions after having read a selection from his book.

Copygrounds: Do you feel there is too much emphasis on economic incentive in contemporary U.S. copyright law? When it comes to the topic of how to reform copyright law a major concern among the students in this class (many of whom are aspiring filmmakers, artists, and game designers) is the potential loss of control over their work and their ability to profit from it. Does the expansive scope and duration of existing copyright protection serve the interests of our aspiring content producers?

Adrian Johns: In some ways there is clearly too much emphasis on economic incentive in the current legal structure – although one could also argue, I think convincingly, that the problem is not over-emphasis as simply a mistaken notion of where the incentive lies. The grossest example is the Sonny Bono Act, which extended the term of copyright protection and attracted the unsuccessful challenge of Eldred vs. Ashcroft. continue reading…

Along with aspiring filmmakers our class is also home to a growing number of ambitious video game producers. We have lots of fun each semester learning the ins and outs of 3D modeling. But we also spend considerable time learning about the video game industry itself. This semester we read a portion of Greig de Peuter’s and Nick Dyer-Witheford’s Games of Empire: Global Capitalism and Video Games. I highly recommend this book to anyone interested in the field of game studies. The authors’ work is grounded by the concept of immaterial labor—a reoccurring concept in our class. This book insightfully explores video games through a cultural, social, and economic lens. We are honored to have Greig de Peuter respond to some of our questions below.

Copygrounds: Is there something substantially different about the immaterial labor associated with video games as compared to radio/television? Much has been made out of the passive nature of the engagement with these latter technologies, but isn’t the process of interpretation or the creation of meaning similar for both? Or more broadly, do you see continuity or a significant break in the transition from so-called ‘industrial labor’ to ‘post-industrial labor’?

Greig de Peuter: A short answer is that there are continuities and discontinuities. As students in the course know, there’s a tradition of reception studies that’s challenged simplistic assumptions of audience passivity and emphasized the active agency of mass media audiences in the meaning-making process. Even so, it wasn’t unusual for early game-studies scholars to herald the interactivity of computer and video games as a democratizing advance over the viewer or listener’s position within one-to-many broadcast media—an exercise in contrast that obscures continuities like corporate ownership structures and marketing-led content design and so on. Looking back, early celebratory perspectives on interactive entertainment might be read as rehearsing some of the ideas later associated with the rhetoric of user empowerment now surrounding Web 2.0. continue reading…

Hi everyone!

Below are Q&As from Professor Nesson and me from summer 2010. Please note that I am no longer officially affiliated with the case.

DBR

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Q&A with Professor Nesson

What or who decides the fine amount, and why are the amounts so varied from person to person?

Jessica Litman’s book, Digital Copyright, was among the first books I read on the subject of intellectual property. Her book provides a fascinating history and critique of the process of drafting copyright legislation in the United States. I consider it a must-read for anyone seeking to familiarize themselves with U.S. copyright law and the challenges presented by recent technological developments. So I was very pleased when Professor Litman agreed to answer some of our questions. This semester we are reading her article entitled Creative Reading. Professor Litman is currently  the John F. Nickoll Professor of Law at the University of Michigan Law School. She is an expert on copyright and we are privileged to have her join our discussion.

Copygrounds: What is the road to copyright reform? In other words, is a statutory reversal of either the expanded duration or scope of copyright even possible? Or conversely, would it be possible to expand fair use provisions through an amendment to the Copyright Act?

Jessica Litman: I think the most plausible road to copyright reform is that the current beneficiaries will seek reform of provisions they are finding unworkable, and proponents of countervailing reforms will take the opportunity to attach their proposals to the legislation.  Thus, Congress enacted the provision allowing bars and restaurants to play radio and television without licenses from ASCAP and continue reading…

In taking up the topic of Internet pornography this semester we were fortunate to be joined by not only from Prof. Robert Jensen but Jennie Ketcham as well. I was very pleased recently when Jennie graciously agreed to answer some of our questions. Jennie’s past experience as a performer in the adult entertainment industry allows her to bring valuable perspective to this discussion. And considering the feelings of despair that this topic is capable of inducing, Jennie also brings a much-needed levity to our conversation. Below are Jennie’s comments on both our discussion with Prof. Jensen and a number of student questions.

Jennifer Ketcham: What a great lecture… I admit, I am green with envy. I have one professor that speaks as eloquently, and inserts the occasional lame joke (not that Dr. Jensen’s jokes were lame ahahh) to lighten an otherwise grim topic. You students are very lucky to have had him for the day, and thank you again for including me on the topic. continue reading…

In recent weeks our class has been discussing some of the moral panics accompanying the increasing popularity of online social networking sites and services like Facebook and Twitter. These panics have typically centered on the misuse of communication technologies and the implications this has for issues like personal privacy, education, sexual predation, etc. Yet the emphasis on the potential for abuse–real though it may be–diverts our attention from the problematic way in which many of these communication technologies are structured even for proper or authorized use.

Mark Andrejevic is a scholar who offers a more critical assessment of online social networking sites and services. Prof. Andrejevic has written extensively on monitoring and surveillance in the digital economy, including numerous posts to the Department of Radio-Television-Film’s very own critical forum on television and media culture—Flow. We were fortunate enough to catch up with Mark recently and have him tell us some more about his critique of online social networking technologies.

Copygrounds: License agreements and shrink wrap contracts have come under criticism and have been subject to numerous legal challenges. Do you think that terms of service for online social networking sites like Facebook are similarly problematic in continue reading…

Copygrounds: What do you think would happen if the right to active participation was extended to areas of cultural or informational production outside of copyright law? In other words, should people be allowed to actively participate to some extent in areas of production normally covered by trademark or patent law? Is it desirable to allow people to remix brands, reverse engineer and re-distribute software, etc?

Henry Jenkins: Not only is it reasonable, but it may also be desirable from the point of view of the rights holders. Eric Von Hipple in the Sloan School of Business at MIT has explored what he calls “lead users.” Lead users are early adopters of new products but also because they are on the cutting edge, they are also often adapters of those products. They adjust them to better serve their own needs which are sometimes generalizable to other users and sometimes highly specialized. Von Hipple advises companies to allow certain space of consumer experimentation and adjustments so that companies can monitor what they do with their products, identifying unexpected uses and unidentified bugs in their production. Some companies have institutionalized such practices, working with their most dedicated consumers to generate ideas that ultimately get translated into new products. Lego is a company very famous for such practices. Brands are discovering that allowing more free play with their once sacred icons is in fact generating greater public interest and also inspiring new continue reading…

Our class was delighted to be joined by Fritz Attaway and Craig Hoffman from the Motion Picture Association of America last week. Fritz is an Executive Vice President and Special Policy Advisor for the MPAA and has been a leading figure in developing the motion picture industry’s approach to  intellectual property. Craig is in charge of corporate communications for the MPAA. They joined us by telephone for a discussion which centered primarily on the challenges posed by technological development for copyright. Below is a transcript of the proceedings in their entirety. Many thanks to both Fritz and Craig for this informative discussion.

Interview with Fritz Attaway and Craig Hoffman

Interviewer:      Brett Caraway

Interviewees:    Fritz Attaway & Craig Hoffman

Date:                 September 30, 2010

Brett: I’ve got the whole class assembled here and we are on speakerphone. I guess first off I would like to start by Craig having you tell us a little bit more about what your position is at the MPAA.

Craig: Sure. I’m in charge of corporate communications for the MPAA which is public relations and continue reading…

I just wanted to write a quick note introducing myself and saying and how excited I am to be participating in this incredibly relevant and interesting class you’ve all decided to take! I’m Jennie Ketcham, formerly Penny Flame, and a student as well (albeit a little bit older than most here haha). I was in the adult biz from 2001-2009, went from solo performer to hardcore and award-winning star, and finally quit after doing a reality show called “Sex Rehab with Dr. Drew.” It all started as a super awesome publicity stunt. What was originally supposed to help my porn career ended up killing it– thank God.

Since then, I’ve done a ton of media stuff about sex addiction, pornography, and huge life changes (like going from Penny to Jennie and $1,200/day to $60). I’ve given lectures on a variety of topics involving porn. I’ve spoken at S&M conventions in D.C. and given talks at Harvard about the effects of Fame, Pornography and Addiction. While I’ve yet to approach the topics addressed in this class, I am certainly qualified to give you an insider’s view on how the porn business works, from it’s top to it’s freshly cleaned bottom. I will answer any of your questions to the best of my ability, and look forward to this whole experience!

Yaaaaaaay!!!

Jennie Ketcham~

The copyright law allows a copyright owner to elect one of two ways to collect damages when their copyrights have been infringed.  They can chose to receive either actual damages or statutory damages.  The reason that Congress included a statutory damage regime in copyright law is because calculating the actual damages incurred as a result of copyright infringement is often very difficult to calculate.  Actual damages include both the value of lost sales or license fees, as well as any profit the infringer may have reaped.  One can well imagine in the context of internet infringement that it is often impossible to determine whether an individual sent out one copy of an infringing recording or ten thousand.  If you cannot measure the number of copies distributed, it is very difficult to calculate actual damages.

Statutory damages are currently set by copyright law at a minimum of $750 per work infringed up to $30,000.  And, if the infringement is found to be willful, the ceiling goes up to $150,000.  In certain situations, a defendant can seek to be deemed “an innocent infringer” and have the floor decreased from $750 to $200 per work infringed.  Over the years, the law has developed a number of factors that should be considered in determining what the statutory damages should be, such as: the value of the work infringed, the harm caused, the benefit to the defendant, the need for deterrence, and the willfulness of the defendant’s infringement.  It is left to a jury to decide how to balance these factors and what damages to assess.

When the record industry brought cases against P2P infringers, the defendants were frequently caught distributing thousands of recordings.  Instead of pursuing the defendants for each and every infringement, the record companies would sue on anywhere from roughly 10 to 30 recordings.   The record companies would then offer to settle the case early on in the litigation before they incurred significant litigation fees.  The amounts of the settlement were generally around $3000 to $5000.  If a defendant demonstrated that they were financially incapable of paying, the record companies would consider their financial circumstances to construct a settlement that suited that particular defendant.  (Of course, this was a difficult process since everyone claimed to be impecunious.)  Looking at the numbers, one can easily calculate that a $4000 settlement would always be less than the minimum statutory damages under the law.

I think it is pretty clear that for many people merely telling them not to infringe without more will not work.   People are told not to infringe all the time, but until there is some risk, whether it be from a lawsuit, academic probation or losing one’s ISP connectivity, many individuals will continue to engage in P2P infringement.

If the only damages the record companies sought in settlement was the cost of a legitimate download of the recordings that were infringed, everybody would simply download music for free hoping not to be caught.  If they were caught, they would have the comfort of knowing that they could settle for the same cost that they would have incurred had they purchased the recordings legitimately in the first place.  (Also, remember, these individual s were caught distributing the recordings as well as downloading them.  So, assessing a cost pegged at a single download would not even come close to approximating the actual damage they had inflicted.)  In order to have a deterrent effect, settlements have to be higher than the value of a download.   One can have a fair debate whether individuals would be deterred if the settlements were $500, $5000 or $50,000.  The record companies thought that the figure of $3000 to $5000 was in the right range.

If a defendant, like Joel Tenenbaum or Jamie Thomas, refused to settle, the record companies would generally follow the case through to its conclusion.  In those cases, the amount of damages to be assessed was left entirely to the jury.  The record companies did not ask for any particular amount or award.  The Judge merely instructed the jury on what the statutory damage range was.  Interestingly, in speaking to some of the jurors afterwards, they often indicated that within the jury room, there were some jurors who wanted the judgments to be higher and some who wanted them to be lower.

Stay tuned for more soon.