Category: Intellectual Property

Bitter Brew – Reactions to Keurig’s odd IP decision.

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Here’s the latest java jive:  Green Mountain Coffee manufactures the Keurig, single-cup coffeemaker, and last week the company made the announcement that it would use a DRM-like technology to prevent customers who’ve bought their machines from using any K-Cups other than the Green Mountain brand.  We all recognize this as the personal printer business model — make the machine pretty cheap then bleed the customer until the end of time on expensive ink cartridges.  This is almost certainly a dumb move on Green Mountain’s part, and it’s not a particularly attractive use of intellectual property protection, but it has next to nothing to do with copyright. Of course, that doesn’t stop pundits from crawling out of the woodwork ready to unpack their adjectives against all things copyright and IP.

Marcus Wohlsen in Wired offers the headline “Why Copyrighted Coffee Might Cripple the Internet of Things.”  I do love headlines in the digital age — so catchy, so upworthyish, so misleading.  For one thing, coffee can’t be copyrighted; maybe there’s some software linking the K-Cup and Keurig machine, but that’s probably a copyright stretch, both for Green Mountain and for its critics.  Expert copyright defenders tend to roll their eyes at this stuff, as they do with other abuses and misuses of a perfectly good set of laws they defend on behalf of actual authors of valuable, protectable works. These side shows give serious IP issues a bad rap, and writers like Wohlsen are only too happy to help.  Still, it’s a storm in a coffee cup, referencing this soon-to-be-overlooked story to predict the failure of “the internet of things.”  The internet of things is the phrase used to describe mass interconnectivity in business and domestic life to the extent that our ordinary products, like coffee makers and refrigerators, become smart.  The example used for years has been the fridge that knows when you’re low on your favorite brand of milk and orders more to be delivered.

But in order to realize the paradisiacal dream that is the internet of things, techno-utopians promote open technology because the only way we’re ever going to enjoy the privilege of having our appliances tell us what to do will be to remove proprietary technologies that are central to competition among manufacturers.  One smart article I read a couple months ago by Mike Elgan suggests that the internet of things might never come to pass, and he refers to the simple example of the basket of remotes, each remote representing a different manufacturer and a unique software link between device and its controller.  To pursue the internet of things would require a degree of non-competition among technology makers several hundred times more complex than the remote example.  And until the recent wave of techno-utopianism backed by a lot of dubious academic theory, competition used to be a cornerstone of a free market.  And in light of the fact that the internet of data has thus far created some very large monopolies, the prospect of embracing universal openness is not without its pitfalls.  If people really want a home that thinks, buys products automatically, orders services, the probability is high that this can lead to the Wal-Martization of multiple business sectors.

Of course, a very natural reason the internet of things might not happen that has nothing to do with copyright or any IP protections, is that people may not want it to happen.  60 Mintues has recently done a fair bit of reporting on the scale and scope of what’s being done with the data we share voluntarily or inadvertently via the internet, and the revelations are startling.  Did you know, for example, that there are data brokers — people who trade in your personal information like any other commodity.  And we’re not talking about traditional, semi-innocuous market research like you prefer Coke or Pepsi, we’re talking about medical information, sexual orientation or proclivities, political views, family history, all compiled and composited to create a dossier about you that is sold for profit, not entirely with your permission, without any oversight; and it’s all perfectly legal.  So far.  We’ll see what happens when a job applicant sues for being wrongfully turned down because he’s an alcoholic a decade sober.  I mean, if he wants to be a pilot, this is probably understandable, but how about a data-entry assistant at an accounting firm? Take the recent, outrageous attempts in Arizona and South Carolina to legislate gayness out of existence, and it doesn’t take a lot of imagination to consider how bad actors might abuse the most intimate information about individuals being collected and sold for profit.  Thus, it’s entirely possible that as consumers become more aware of the extraordinarily invasive business model that makes internet services so “free,” they may come to reject the internet of things, uncomfortable with the prospect that one day walls really will talk.

I’m not surprised that tech junkies will gather in Austin at a SXSW event this week to fawn over presentations by Edward Snowden and Julian Assange, both video-conferenced in from their asylums in Russia and the Ecuadoran Embassy in the UK, respectively.  After all, too many of us suffer from this bizarre delusion that somehow social media and digital connectedness is the antidote to government overreach despite the fact that the data these internet companies gather, consolidate, and sell dwarfs the capacity of the entire intelligence community, even if it were solely comprised of bad actors, which it is not.  Meanwhile, so-called defenders of “our rights” in the digital age — from funded organizations to individual pundits — make much ado about nothing over your right to make coffee the way you want because copyright because Hollywood, dammit!  Yeah, it’s a convoluted kind of logic, but if you think I’m inventing all this conflation, read Dan Gillmor’s piece in the Guardian, which segues rather quickly from the Keurig story to blasting away at the “Copyright Cartel,” as he calls it.

I remain concerned that this utopian notion of “openness” is evangelized most ardently by the interests who stand to emerge as winners on a re-designed playing field.  We need only look at the impenetrable dominance of Amazon to see how more interconnectivity can actually lead to a market that is anything but open.   Meanwhile, side show barkers keep telling people that intellectual property protections like copyrights and patents — systems which have been proven economic drivers for a couple of centuries — are standing between us and a future we may not even want.  I don’t know.  I’m off to brew a fresh pot of coffee.

Digital Citizens Alliance Report – Crime Pays

For anyone who has yet to catch on to the idea that digital media piracy is in no way sticking it to the man, perhaps the simplicity in the graphics and data on this link will help.  Based on a recent study sponsored by the Digital Citizens Alliance, the top 30 P2P and BitTorrent sites that derive revenue solely from advertising make over $4 million per year.  Much of that revenue is coming from major brand advertisers, most of which end up on these sites haphazardly through low-end media buys. I’ve already written a longer post rejecting the notion that supporting or engaging in piracy is some sort of anti-establishment, anti-corporate choice; and I see no reason to repeat all that here.  In fact, other than fending off tedious, juvenile rationalizations, there really is no argument to be had about piracy.  Supporting the activity is taking revenue from people who make something the consumer wants and giving money to people who make…nothing.

The Digital Citizens Alliance is calling on major advertisers to work with media buyers to keep their brand ads off sites that hijack creative works. It should be noted that most brand managers do not actively seek to advertise on pirate sites where their brands often appear next to low-class ads for bogus foreign dating services and banners linking to malware.  As such, the DCA is arguing that both the media producers and the advertisers are having their value hijacked and have a mutual interest in addressing the problem.

Compulsory Licensing & Chilling Effects

This morning, music industry attorney Dina LaPolt and Aerosmith front man Steven Tyler submitted written comments to the USPTO on the subject of compulsory licensing for remixing and sampling musical works. At issue is a green paper submitted by the US Department of Commerce Internet Policy Task Force that copyright reform could include a measure that would effectively mandate artists license their works whether they want to or not.  In short, any entity from a creative, young upstart to the Ku Klux Klan could legally sample and/or remix these works, and the original creators would have no say in the matter.  The compulsory license strips one of the fundamental properties of copyright, the right of choice, from the artist; and this is why Tyler and LaPolt were supported with letters from other creators including, Don Henley, Joe Walsh, Sting, Ozzy Osbourne, and Mick Fleetwood.

All of the artists who wrote letters made the central point that collaboration and licensing among creators is and has been working very well to the benefit of both creators and the public; and they insist that no change to copyright law in this regard is required.  It seems fundamental to the concept of fairness and decency that an artist should have the right to deny the use of his or her work in a form that he or she feels betrays its initial purpose or meaning.  If the artist creates from a place that is deeply personal or politically motivated, it is easy to see — indeed we have seen — how a permissionless environment invites degradation that is a disservice to cultural diversity.  A black artist writing about black issues could not stop a racist hate group from appropriating his music as long as they paid the license.  A politician who opposes everything an artist ever stood for could turn that artist’s work into his campaign soundtrack.  Or, on the simplest level, as we’ve seen in the case of GoldieBlox and the Beastie Boys, artists who simply don’t want their works used to sell products or services would lose this basic right.

LaPolt offers a compelling analysis that the potential misuses I refer to above can amount to a chilling effect on artistic expression; and those who consider copyright anathema to free speech should consider what she’s saying.  Steven Tyler and other artists who wrote letters confirm that money is not the issue.  If an artist doesn’t want his or her work used in a certain way, no amount of money will matter.  What would instead happen, suggests LaPolt, is that artists will likely choose not to produce certain works, knowing that they can be lifted and used in contexts that betray their message or meaning. I would certainly agree that the more powerful material — work that might confront a serious social issue, for instance — would be the stuff an artist would reconsider in such an environment. By contrast, the counter-argument we often hear is that artists unwilling to license their works for certain derivative uses has a chilling effect on free speech; but I happen to think that’s stretching free speech to coddle opportunists who are either too lazy or not talented enough to create their own thing.