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Live Blogging from World’s Fair Use Day: Panel 3 – Technology Unbound: Fair Use for Innovation

January 12, 2010

[This post was written at a live event.]

Gigi does brief introductions of the panelists: Rakesh Agrawal, Dan Reetz, Andrew McLaughlin, and Michael Robertson.

GBS: Intro question. What has been your biggest fair use challenge? And for AM, what will be the administration's approach to fair use?

RA: Our product (Snapstream) is a cross between a DVR and a search engine — search inside TV shows and do things with what you find. Slide shows you can search, find something in a show, and it will take you to the point of the show that has the reference in question. Typically our customers are the ones making fair uses of what they find. Gov't organizations use it for ego searches (“what's being said about us”?) Used for research for journalism schools. Used by TV shows like The Soup and the Daily Show for source clips. Demo video from the Soup about Twitter: Great montage of all the shows talking about Twitter that week. (“It's the digital Macarena!”) Just one example. Customers have many varied evaluations of fair use (how old a segment they'll use, how long, etc.) Seen some pretty broad interpretations.

DR: I work on high speed scanning of use. Last year this day I was in a dumpster scavenging parts. I was a student and couldn't even afford textbooks. Looking for used books on Amazon, but camera Amazon was pushing were cheaper than the books. Bought two cameras, and built the device. Does up to 2 pages every 3 seconds. Documented building it. Built his friend one in exchange for software, which is 50% of the problem. Made a 79-step instructable. 130,000 views. Several effects: 1) Won a laser cutter. 2) Contacts all over the world who needed such a scanner. They donated back. Helped turn the machine from literal junk into a real machine. him and Ron (in the audience — apologies if it's “Rob”) founded diybookscanner.org. Began as 2 mechanical engineers, 2 software engineers, and an IP lawyers. Now many members, many posts, and a variety of scanners. Many members, including the disabled. “We are not a bunch of textbook pirates. These people have legitimate needs that are not being addressed.” Used laser cutter to build one that collapse to fit in carry on luggage that can go anywhere, and print out the major components for anyone. If everyone had to scan 1 book instead of paying $25 to get a library card, we'd have the world's book digitized. Ron is working on a gorgeous page de-warping algorithm. How are we going to get digital books? We can scan them or buy them back from Google. He wants to make it possible for everyone to do it using fair use so we don't have to buy another copy again. Also, lots of books you don't want in the cloud (politically unacceptable).

The canonical fair user of these books are people with enormous collections changing formats to take advantage of new technology. Rob is shifting several thousand science fiction books, which is fitting. Tristan on the forum can't read with his eyes, but can listen, so is building a scanner — one paraplegic was denied access to certain books he wants to read — one person scanning high school yearbooks for his community — several other examples of people with real needs using the design. One more example: man from Indonesia wants to scan hand-written genealogical records for preservation — they build him a scanner.

The whole thing is a community resource. Dreaming of digital books with irrevocable rights of paper books with the advantage of digital. “If you think everyone else is doing it wrong, do it yourself.”

AM: I'm the “one of the things doesn't belong” up here. He's not talking on behalf of the PTO, IP enforcement coordinator, or anyone else doing IP policy — just himself. Wants to talk about IP policy agenda. Went to CES this year — captured something AF was talking about ont he last panel: the incredible strength which copyright law/flexibility of fair use brings to innovation. When you see # of jobs being created, # of tech innovations, speaks to the balance we have in (c) law which has served us well. There's a proposal to recognize a right for the visually impaired/exception for them. Reversed previous administration's position, and is working towards a treaty or other solution. Commend to you Justin Hughes statement on the issue, addresses both sides of the (c) equation. One thing he hopes this administration can do is broker dialogue around (c) issues better than in the past. Don't misunderstand: serious about IP inforcement. Policy is to take violations of the law seriously as an enforcement matter.
At the same time, there's no inconsistently in talking about the strength of exceptions like fair use and visually impaired. Fair use is no an excuse for infringement, and most people here agree. Want to protect both legitimate interests of fair users and of creators trying to be compensated. Want to recognize value of public domain and fair use principles. Big fan of DJ Earworm — one of the most interesting cultural phenomena is the rise of the mashup. Let's keep that in mind as sort of a use casy for maintaining the balance, and we will do ourself well.

AM: I'm the “one of the things doesn't belong” up here. He's not talking on behalf of the PTO, IP enforcement coordinator, or anyone else doing IP policy — just himself. Wants to talk about IP policy agenda. Went to CES this year — captured something AF was talking about ont he last panel: the incredible strength which copyright law/flexibility of fair use brings to innovation. When you see # of jobs being created, # of tech innovations, speaks to the balance we have in (c) law which has served us well. There's a proposal to recognize a right for the visually impaired/exception for them. Reversed previous administration's position, and is working towards a treaty or other solution. Commend to you Justin Hughes statement on the issue, addresses both sides of the (c) equation. One thing he hopes this administration can do is broker dialogue around (c) issues better than in the past. Don't misunderstand: serious about IP inforcement. Policy is to take violations of the law seriously as an enforcement matter.

At the same time, there's no inconsistency in talking about the strength of exceptions like fair use and visually impaired. Fair use is no an excuse for infringement, and most people here agree. Want to protect both legitimate interests of fair users and of creators trying to be compensated. Want to recognize value of public domain and fair use principles. Big fan of DJ Earworm — one of the most interesting cultural phenomena is the rise of the mashup. Let's keep that in mind as sort of a use casy for maintaining the balance, and we will do ourself well.

MR: Let me talk about mp3tunes. We let people store their music in the cloud — give them tools to upload their music to our storage. I usually do a demo — buy a song from Amazon and play it on a bunch of devices so they get it. I asked Gigi for a song recommendation (who has a good ear for music). I usually choose something like the Police us “older folks” will recognize. I bought Gigi's recommendation, and she actually broke into dance. I'm gonna play a song for you here, and if we're lucky she'll break into dance. I'll stress that the song I'm playing is coming from the cloud (through WiFi on this iPod Touch). music. Also on Google phone. Coming from the cloud. It's your music, play it where you want. About half a million users. We were sued by EMI records. Allging locker service is a copyright infringment. To me this is absurd. We're storing your music for your listening online, using same security as online banks. Sued company for billions of dollars.

Also sued MR personally. Normally you can't do this when you incorporate, but content owners have been successful in getting themselves over special treatment. Billions is not an exaggeration. Normally you hit someone's car, you pay for the damages. In (c) you get to elect either actual damage or statutory damages. 100 million songs * $15,000 (low number) per song. And because they don't have to prove any harm, and there's a huge financial penalty, it really dissuades people from starting businesses or going to court. Sued 2 years ago, hopefully might see some meaningful rulings in 2010. Meaning, $25,000-$75,000 a month in legal bills. How many people can afford that? Not many, even if they're right. So they settle or go into bankruptcy. His legal defense is DMCA 512 — he's storing data as the direction of a user. Same as YouTube and Veoh. Music has become the canary in the coal mine for online content.

But what's at stake is personal ownership: “Do you own your digital property?” As goes music goes e-books and videos. If the media companies can say “I know I sold you that, but you can't play it on a portal device or put it on the Internet” you've turned everything into a rental or a lease.

GBS: MR, you raised a really good point: what is the future of the first sale doctrine in the digital age? I bought a book or found it on the street. I can read it, I can sell it, I can burn it. Not in the digital world. Is ownership dead in the digital world?

MR: Often hear from people with great ideas, but he warns them: great idea, but if you're wrong, you personally are wiped out. Lots of entrepreneurs not taking the risk because it's “too hot,” and are not pushing the envelope because of the risk.

DR: Ebook companies don't keep individual copies for each user, they make copies. Do I own a bit if it's the same bit someone else has? First sale needs to be addressed.

GBS: A couple of pointed questions for each of you. First, RA. How have you managed to aviod litigation like TiVo and other innovative devices?

RA: It's been a consideration at every turn. When we first started Snapstream, we registered “bigassvcr.com” (though now lapsed). A place to connect one person's recording to another person's desire if they missed the show. Changed the idea — they're very particular about how they put tech together and create figures. For example, web service allowing you track trends on traditional television. Take all that data and let the public search it free to track ebb and flow of keywords on TV. Compare various trends. Can click peaks to see small excerpts of sources. But done as a device installed by customer. But haven't gone to service model by going to content owners. Is a company (Red Lasso) that did this. They got sued by most of the content owners. They emerged from that with a very small selection of TV content as a part of their web service. Navigating what we percieve to be the minefield in this area is important.

MR: Are you doing audio-to-text or use closed captions.

RA: We take CCs and automatically clean it up.

MR: Do all shows have CC?

RA: Most, with some exceptions.

GBS: Others are wecome to ask questions. What are the differences between you and Google Book Search besides size?

DR: First, we didn't settle, we ride on fair use. When we first brought it out, he was asked “is this the Napster moment for books?” No, we don't release content — we don't even have example pages on the web site. We're working on the first step — hardware and software to get the data in. Others will figure out (legal or not) distribution. Google is making substantial computational uses of their books and are training their machines. Google now has a rosetta stone for every book that has been translated. The will use that to build the most powerful translator in the world. These types of uses are underaddressed in the settlement.

GBS: Let's not forget, the mere fact that they made copies — not that they distributed — is enough to get sued. Are you “inducing” people to make digital copies?

DR: EFF told us not to tell people to scan their textbooks.

GBS: “Build these but don't use them.” laugh

DR: In first settlement couldn't OCR books (convert pictures to text).

MR: Maybe you aren't creating the exchange system, but is this a key step to letting consumers make bits that are easy to and naturally do spread.

DR: Yes, but that Napster moment for books has already happened. Russian web sites are dedicated to sharing digital books. If you look for digital books on the net, you mostly don't find scanned books, you find pre-release digital copies from publishers.

MR: Do you do OCR?

DR: We don't right now, we make readable images. But you can feed it into outside services/software to do it.

GBS: MR, tell us about mp3.com and how you got sued by the recording industry and lost for a lot of money. Correct me if I'm wrong, but you had to prove you owned a CD and upload into a locker.

MR: Fairly accurate — had to insert CD and service would use it to check the sound and make sure you really had it. To me still fair use even if we lost. Could only stream — couldn't download. Reason he lost is that people didn't have high bandwidth. His company bought a million dollars worth of CDs, and if you verified that you had the Alanis Morisette cd, they'd let you listen to their copy of “that angry white woman” — you didn't actually upload your bits. Now, people actually upload their bits. He thinks this is worse all around (slower, not really guarantee you have the cd/own it). But what you think is fair doesn't matter, it matters what the law says. And the law say “if you're storing it at the direction of the user, you're safe.” In this case, it's unmistakable.

GBS: Invite people to mic. Gonna ask a question in the meantime.

RA: Let me add something: Similar problem comes up. We're basically taking a cable connection and recording it. But in the current model, snapstream is not recording anything themselves (plus there's no cloud portion to what they offer), but that's how they avoid the problem.

GBS: AM, question for you.

AM: Going to yell at me about ACTA? laugh

GBS: How does somebody who's not a lawyer make it known to your bosses that they care about fair use, would like to see (c) law reform, etc. How do individuals make their opinions known?

AM: My observation so far (kind of ameteurish) is that human contact really matters a lot. Benefit a lot when see how businesses really work, how these things really run. Suspect many policy-makers' models are behind the technology. There's no real substitute for shoe-leather explanations of what's really happening out in the country. The people who actually put pen to paper and write stuff have the most currency in Washington: the well-argued white paper, the well-researched economic study, etc. Those are people who will be heard and studied. David Kapos at PTO (Patent & Trademark Office), Vitoria Espinel, Arti Rai other great people are in the administration tring to good things.

GBS: Dream for this conference is to have a lobbying day after.

Question: MR, original case sued for storing music, seemed like major labels were scared that major artists were doing end-run around them to mp3.com, and were really scared, and still trying to clamp down on artists trying to deal with public without them. Thank you for what you did.

MR: Thank you. One ironic twist was company that used me the most was Universal Music. Said that MR didn't care about the law. Ironically, Universall Music bought mp3.com from him. At closing dinner, not puppies and bunnies and fun stuff, said, “You know why we sued you? Because we thought you were getting too powerful.” When I first got into it, though “it's a law suit, it's about right and wrong/black and white.” But it's not about right/wrong, it's about business leverage and who can get negotiation leverage. At the end of the day, I think I'm the largest (c) infringer in the world and have paid the most damages. But to me, I have two boys, and I can say I'm proud of what I've done, and that's fair use.

Question from Gavin Baker: Should there be more accounting in the damage structure so people who are creative/not doing outright piracy and take risks aren't dissuaded because of massive damages — tailor damages more to use. Would level of damages change what you did?

GBS: Go down the line, though I think we know MR's opinion.

MR: nod

RA: As I said, we avoided who classes of ideas because of the potential consequences. No question that factors into how we manage risk.

GBS: DR, do you think about statutory damages/

DR: It's hard to take something from me; I have very little. But I think in broader terms. We have had cameras for years and need access to these books. Can avoid disasters. Libraries have little, and couldn't afford statutory damages, and so did nothing, and Google ended up doing, which hurts us.

GBS: What was judgment in mp3.com case?

MR: There were several.

GBS: But here you are doing it again (groundhog day).

MR: You got 80 years on the rock people, do something with it.

Question from Nina Paley: Another difference is that DR's project is decentralized and Google's is not, and I find that amazing and inspiring. MR: Are you doing this for money or entrepreneurism as creative act to improve society?

MR: I think you can do both.

GBS: Do you think about statutory damages, Nina?

Nina Paley: Definitely when I was making the film. But most artists don't have anything to lose, and that will be the downfall of copyright monopolists — we have nothing to lose and can fight.

RA: What other cool new interesting things are happening?

MR: RecordTV.com singapore service/case. Would allow citizens of Singapore to sign on and record HD broadcast channels. Everyone gets this channels. Sued — lost 3 weeks ago. Said it was the user, not his company that made the recording, but it's a public performance when the user plays it back, which is bizarre. But gonna see more things like that.

GBS: This is a lot like the Cablevision case in the US. Instead of having a DVR in your house, kept them in centralized servers. One of the arguments rejected by the 2d Circuit Court of Appeals is that this is a public performance.

AM: Now seeing a lot of distributed/collaborative production of works.

DR: Some really interesting facts — most common camera in the world is the little camera in the mouse, not the one on your phone. A fundamental shift in how we use cameras/sensors. Project (one of many) from Steve Mann where the authorship of images will be less camera-dependent and more who has access to them.

MR: What do you mean?

DR: In labs there are cameras which can take a picture and focus after the fact. Microsoft has a project where if everyone takes a picture of the room, they can build a 3d model of the room.

GBS: Lincoln, don't have time for question, going to let Gabriel ask the last question.

Gabriel (from GWU): Seems like scanning your own books is classic fair use. And it seems like technological protection measures are destroying fair use (like DVD ripping).

DR: Two people approached me. First said you must have very good representation. Second was Cindy Cohn from EFF who said, “don't induce people.” Agree that scanning your own books is classic fair use.

RA: The type of thing we do isnot as accessible to smaller producers because of the cost of equipment, and that's a real challenge. Daily Show/Colbert report will be rolling out next month, but they rolled out HD, but that's a challenge because you can't just record HD the way you can SD because of encryption.

MR: We don't touch DRM content, if you were dumb enough to buy iTunes DRM content, that will die. But we do offer streaming at lower bitrates. But if you do have DRM, you have destroyed any notion of ownership — every purchase becomes a rental, regardless of length, and it will eventually go away. If consumers know what they're buying, that's fine. But that's not how DRM/TPM work — they can change the rules at any times as Apple has done. That's not a world of personal ownership. We want a world of ownership, otherwise standing on shoulders and collaboration becomes impossible. That's not a world we want for consumers.

GBS: I'd like to thank our panelists for a great panel, then a 25 minute break and our last panel.