Category: Copyright

Right to Jailbreak Auto Software May be a Moot Point

Last month, a good friend of mine — an attorney who works in intellectual property and believes in its value — shared a brief post from BoingBoing by Cory Doctorow criticizing efforts by the auto industry to enforce the copyrights on software, now intrinsic in any contemporary vehicle, in order to limit consumer choice in the marketplace. In this case, Doctorow calls out GM for its efforts to stop the Copyright Office from granting an exception to the DMCA that would allow owners of GM vehicles to jailbreak the software, thus enabling them to perform their own diagnostics and maintenance at home, or to use non-GM-authorized service providers and parts. Such restrictions, increasingly asserted by automakers, are seen as a prime example of industry abusing intellectual property rights as protectionist measures to restrict liberty and limit competition.

Certainly, my pro-IP attorney friend shared the story with the comment that she feels automakers are overreaching; and, in this regard, she is consistent with most copyright advocates as well as the courts, which have generally favored competition when other industries have tried to use DMCA anti-circumvention measures to control the market.  So, in this particular moment in history, the complaint is understandable; though the conversation itself, I believe, raises a much broader and more interesting subject beyond contemporary copyright, begging the question as to exactly what kind of future it is we think we’re building?

In fact, Cory Doctorow himself is one of the more prominent voices presently insisting that those of us who still place considerable value on copyright and IP in general are anachronisms. We are told that we are metaphorically “clinging to the buggy whip industry while automobiles pass us by.”  But in his criticism of restrictions on jailbreaking contemporary cars, I have to ask exactly who’s clinging to the past here? Because the more our automobiles become sophisticated computers on wheels, and most especially if we are serious about migrating toward a future of driverless (or diver-optional) cars, it seems to me these complaints about automakers’ application of copyrights in this case are clinging to rapidly fading concepts of ownership that will naturally continue to change if we are to take the futurists and tech-utopians seriously.

In a future system in which an automobile becomes just one dynamic node in a vast traffic grid that is holistically maintained by software — because that is the only way it could work — not only will individuals not be allowed to service their own cars, but the very idea that a car may be “owned,” as we presently define that term, could be scrapped along with the last internal combustion engine.  As Jaron Lanier suggests in Who Owns the Future, a driverless paradigm may be brought about by public mandate if it can be demonstrated that automobile fatalities and serious injuries can be reduced by a substantial margin. And more recently, articles have been appearing that predict we’ll at least see driverless taxis within a decade or so, while others have examined the environmental benefits of a driverless future.  Combine these factors with certain market realities — like the fact that American millennials will be the first generation to earn less than previous generations and that they concurrently reveal a general comfort with “sharing economy” concepts that erase traditional notions of ownership —  and our long-standing relationship with automobiles as symbols of personal freedom could give way to a driverless future that would necessitate something like a public/private model of personal transportation.

I know this projection is probably unappealing to many Americans today because we do have a unique relationship with our cars, our big open roads, our ability to be our own mechanics, and our sense of liberty.  But that’s exactly why I think the larger question as to what kind of technological future we’re building is far more intriguing than any momentary complaints about an automaker using copyrights to restrict traditional market freedoms in maintenance.  Sure, we can, and probably should, demand the right to jailbreak cars on principle right now, but that principle could become moot faster than we think.

It seems reasonable to assume that if we are to embrace The Internet of Things, that as ordinary functions of our lives are made easier, safer, cheaper, or faster by networked systems, the more the concept of “owning” many types of property is likely to change. In many cases, these predictions seem to imply a return to older models based on monopolistic, semi-regulated, industries.  When I was a kid, nobody owned a telephone. A household got an account with the one phone carrier that served the community, and then leased however many phones as needed from the same company, much as we still lease cable boxes to this day.  So, if we progress toward a future of smart, driverless cars and smart homes, at what point do regulations like building code, consumer and environmental protections, or safety regulations merge with intellectual property to become an intertwined body of law that inherently limits our present sense of personal liberty vis a vis those items we presently call “our stuff?”

Consider the flap from libertarians over the CF lightbulb years ago, or the overreach by Keurig in its attempt to use IP to thwart the sale of off-brand cups for its coffee makers; and then imagine how many components of your home might one day be part of a complex, data-driven network that only works properly if all the compatible units are precisely installed and maintained.  “Your” house  would become  just one little Christmas light on a vast strand of homes and businesses that society cannot afford to let go out. How could such a highly automated and integrated system function without limiting individual choice and potentially threatening competition in the market?  Of course, our adoption of holistic, networked integration of daily life is either unlikely, or it depends on such profound social changes that it is a bit hard to fathom.  But as long as we’re talking about broader principles, let’s talk about those with regard to the technologies and models we’re being told are the future rather than merely react to momentary misapplications in models we believe to be rapidly fading into the past.

By and large, I assume we enjoy the benefits of safety and convenience that come with computer-assisted cars, but now we’re on the leading edge of the question as to whether or not we ultimately want computer-centric cars.  If so, it is probably unavoidable that we must  recalibrate our definitions of ownership if we are going to allow the machines to drive us rather than the other way around.  Thus, I find it a strange contradiction to highlight every example, at this moment in history, that reveals copyright to be a restraint on personal liberty when it is simultaneously claimed to be a restraint on innovation itself.  Because many a predicted innovation may ultimately limit traditional liberties by virtue of paradigmatic change, resulting in fewer consumer choices in various sectors.  A driverless-vehicle paradigm implies a model that is fundamentally communal, which doesn’t have to be a bad thing for society per se, but it is certainly anathema to the American sense of personal liberty with regard to “our” cars.   As such Doctorow’s complaint, while perhaps valid in this moment, appears to rust a little on the page almost as quickly as it can be read.

TVEyes Warping Fair Use Principle

Once again the Electronic Frontier Foundation has taken up the cause of industry in the guise of public interest, principally with the ultimate goal of distorting fair use doctrine beyond its intended purpose.  I am speaking about the case of FoxNews v TVEyes, which as Terry Hart points out in this post on Copyhype, re-treads some familiar ground regarding the copyright interests of news producing entities and the fair use claims of news monitoring services.  I recommend Hart’s blog for more in-depth historical context; but suffice to say that in the early 1990s, bills proposed by Senator Orin Hatch that would have amended copyright law to add news monitoring to the list of fair use purposes never made much progress. But, as Hart writes, “…the lack of legislation did not jeopardize the broadcast news monitoring industry. Nevertheless, little has changed in the discussion of fair use and news monitoring from the early 90s to the current litigation involving Fox News and TVEyes.”

Last fall, a federal judged ruled in this case that copying “broadcast content for indexing and clipping services to its subscribers constitutes fair use.”  And this July, oral arguments will be heard as to whether or not other services (like subscribers downloading, storing, and emailing clips) might also be judged fair.  The EFF, along with the Technology Law & Policy Clinic at NYU School of Law, has filed an amicus brief on behalf of TVEyes, while several leading news organizations have filed a brief on behalf of Fox.

To be clear, plenty has changed technologically in the news monitoring world, but Terry Hart’s point above is that the fair use argument being made today in favor of TVEyes is fundamentally the same as the arguments that failed in Congress twenty years ago — namely that there is a public and First Amendment-serving purpose to news monitoring that should qualify the enterprise as a fair use of copyrighted material.  And be it far from me to second guess a federal judge, but it seems that technological changes have only weakened this argument, not strengthened it, particularly when we look at the specific business model of TVEyes itself.

News monitoring services have been around since before television, first in the form of clipping services for print, and later as video systems monitoring broadcasts of “hard news” that was captured and stored on tape. This enabled customers to order a specific broadcast clip for educational, documentary, reporting, and other communications and investigative purposes.  We used these services in the 1990s during my corporate communications days. You paid a service a small fee to do a search and then received a VHS tape with the clip(s) you needed.  Today looks very different.

Presently, TVEyes copies, stores, and indexes round-the-clock broadcasts from 1,400 channels, and this includes programming that exceeds traditional models for “hard news” monitoring, capturing entertainment programs like magazine-format shows and documentaries.  Moreover, TVEyes is a fairly elite, B2B service; and it seems to me that fair use exceptions in the name of the public’s right to information ought to be limited to those uses that actually serve the public. But you and I do not use TVEyes, and we never will because a subscription costs $500/month.  So, as a business, TVEyes is not even a consumer-focused service, but an industry-focused service used by professionals who need to be ahead of the proverbial curve when it comes to breaking and overlapping news stories.  Such professionals include news organizations like the Associated Press, major corporations, government agencies and NGOs, and of course high-level investors who are skilled in the dark arts of predicting how a traffic jam in Malaysia might affect their position in shoe laces or something.

Clearly, this $6,000/year service is not for the general citizenry that has a right to be informed. In fact, it’s interesting that one argument being made today on behalf of TVEyes — as it was twenty years ago for news monitoring in general — is that there is “so much information out there”, that these services are invaluable.  And they are invaluable for the types of clients that need and can afford them. Meanwhile, the public-serving aspect of the fair use argument here seems to overlook this free technology we all have called the search engine.  Yes, there is more information produced more rapidly by more sources than ever before; but the average citizen also has more free tools to search, index, and access that information than ever before.  Isn’t that what Google congratulates itself for doing at every opportunity?  And setting aside the chicken-and-egg quality of these phenomena, the bottom line is that you and I can search news items all day long on just about any subject we can imagine, which has nothing to do with the high-priced and  specialized service provided by TVEyes.  The logic being applied is akin to saying that because the public has a right to know what happens in the financial markets, Reuters should not have to honor licensing deals for any of the content it aggregates to its elite Reuters Insider service that it sells at a premium to investment professionals.

There is absolutely nothing wrong with TVEyes. It’s a sound business and clearly provides a service that many companies and institutions consider well worth the subscription fee.  But as a for-profit entity providing a high-level, B2B service for institutional clients, it should not be allowed to profit from the use of assets produced by Fox or any other entity without paying reasonable licensing fees.  More importantly, it is dismaying to see fair use doctrine distorted on the basis that the general public is in any way served in this case. It moves the needle of legal precedent closer to the Internet and tech industry goal of monetizing the totality of works without paying the individuals or entities who produce them.  This neither serves any beneficial social practice nor any larger ideological principle.  It’s just an old-fashioned land grab and a big middle finger to the evicted. Fair Use is not what we mean when we say “FU.”

The Comic Strip as Model in the Digital Age

I just watched a fun little documentary film called Stripped (2014) made by David Kellett and Frederick Schroeder about comic strip creators. The film features interviews with veteran artists whose careers were born in the syndicated market as well as contemporary cartoonists whose work never graced a newspaper but instead found an audience in cyberspace. Every artist interviewed generally seemed to agree (editing notwithstanding) that the digital revolution resulted in an explosion of fresh, bold creative work in the medium and even provided a path for both new and established artists to make some kind of living in response to the shrinking newspaper market. Although Greg Evans, creator of Luan, does say that the Web is “pennies to the syndicate’s dollars,” several voices in the film did echo most, if not all, of the major talking points that critics like me tend to ascribe solely to those “tech-utopians” we like to remind our readers are not creators themselves.

These comic strip artists talked about adaptation, new models, new revenue streams, P2P relationships, the whole shebang. And I admit that I haven’t thought about comic strips in years because it’s been that long since I last spread a Sunday Times across the dining table. (Plus, I’m not really over the demise of Bloom County.) But having watched this film, it makes a certain amount of sense that the comic strip might (and I mean might) fare better in the digital age than other media. Or to look at it another way, what can work well for comic strips is instructive with regard to what does not work for other media, including of course comic books and graphic novels, which are different animals altogether.

As I say, I hadn’t thought much about this medium in this context, but several qualities unique to the comic strip do seem well suited by the new-model mantras of our times. In fact, the first image that popped into my head was one of those spreadsheets used to compare and contrast products or services. While there are always exceptions, if we’re going to consider these columns honestly in a way that reflects general rules, this is how it might look:

Comics Comparison

Each of the media listed might theoretically receive a check in every box, but I think it’s notable that comic strips seem to run the table, at least from a casual observation. Stripped also highlights a tradition of adaptation among these artists, citing the interesting fact that  the comic strip as a medium was the result of a class of talented book engravers put out of work by the invention of photography. And though the digital revolution may require some adapting by the contemporary comic strip creator, it does seem less like the kind of radical and unsustainable metamorphosis our new-age gurus presume to demand of creators in other media.

Comic strips are serial in nature, traditionally change daily, and are short-form experiences, which are all attractive qualities to a Web-based audience one hopes to draw consistently to a single site. Comics are also typically produced by a single creator who almost never relies on skilled outside labor to complete the work. And because comics create unique, iconic images, they are natural foundations for potential merchandise opportunities that can become primary rather than ancillary sources of revenue. Fan interaction is, of course, possible with any medium, but based on what I gleaned from the documentary, I got the sense of a natural symbiosis between creating a daily dose of humor or poignancy and regular interaction with loyal readers.

Overall, the qualities of the comic strip that seem to complement the opportunities of the digital age also appear to make them resistant to the threat of the digital age — piracy. And I imagine comics could be relatively piracy resistant, inasmuch as there is no inherent reason a fan won’t go to an official site to see the day’s strip rather than an unlicensed site, when both options are free and equally accessible. Nevertheless, some “fans” still fail to honor artist’s requests to not repost works without permission; and predatory site owners do scrape official comics hosts just as they do with photographs, lyrics, or just about any other asset they can use to siphon web traffic that a creator has legitimately earned for herself.

This is relevant because so many of the new-model theories presuming to tell creators how they should produce and distribute their works are repeated either as justifications for piracy or as proposed workarounds to render piracy irrelevant. Yet, we continue to see that even as low-cost or free alternatives for accessing media are employed, either outright pirate sites or semi-legal predatory sites continue to hijack valuable traffic away from producers. Meanwhile, even if the comic strip artist does prove to be one of the best poised to diversify and take advantage of the digital revolution, the piracy apologists and “copyright is dead” crowd remain eager to cut off alternative revenue sources, like merchandising, which would be meaningless without a legal framework for licensing.

No question the comic strip is an interesting medium to watch, but there are a lot of assumptions floating around out there that what might work for one medium or creator will work for all others, and this simply isn’t the case.