A story over at the Awl about HBO trying to erase its past provides another stark reminder of the importance of ownership – real ownership – in a world full of digital downloads and streaming. 

We’ve been talking about digital ownership and digital first sale for a while – PK VP of Legal Affairs Sherwin Siy wrote an entire whitepaper about it.  Fundamentally, digital ownership is important because increasingly when you “buy” a digital thing online you don’t really own it.  Instead, you click through some long terms of service agreement and “license” it.  That distinction matters – if you are licensing something you are not really buying it, and if you are not really buying it you don’t really own it.

Non-ownership plays itself out in all sorts of ways.  Because you don’t own those digital goods, you may not be able to lend them to someone else, or resell them, or even pass them on to your heirs when you die.  Similarly, because you are only leasing them, rightsholders can reach out after the “sale” and simply make the files disappear.

This non-ownership also means that it is easier for rightsholders to rewrite history, which brings us to Mr. Show – one of early HBO’s classic sketch comedy shows – and HBO Go – HBO’s on-demand streaming service.

In the Awl piece, John Herrman points out that HBO Go’s selection seems to skew heavily towards its “prestige programming” and away from the “late night softcore porn and of-the-moment comedy specials” that defined HBO’s formative years.  Even recent shows that never quite caught on – the Lucks and John From Cincinnatis of the world – are edited out in favor of HBO’s critical successes.  In other words, Herrman suggests that HBO is selectively editing its history to play up its successful prestige programming at the expense of its somewhat more rough and tumble roots.

Regardless of the motivations behind HBO’s editing, it paints a somewhat disturbing picture of the future in an all-streaming world.  When you are only renting something, the rightsholder can take it away and make it disappear at any time for any reason.  That gives them the power to alter their own history.

This may be most vividly illustrated by the fate of Mr. Show.  As Mr. Show’s creators point out at pretty much any opportunity, HBO hates Mr. Show.  Perhaps as a result, Mr. Show is not available on HBO Go.  Fortunately, Mr. Show is available on DVD, which means it is actually available to really purchase and to really be owned by the public.  This availability for actual purchase means that even if HBO were to try and bury Mr. Show, it would still be available in physical, owned copies that could be legally lent, sold, or passed down to heirs as their owners saw fit.

That user control stands in stark contrast to a world where everything is leased and nothing is owned.  If shows have only been streamed or leased through digital stores, the rightsholder will always have the ability to make them (or at least legal copies of them) disappear.

None of this means that we should be stuck in a physical-only world.  The solution to non-ownership is not to mandate everything be released on DVD or some other physical format.  Instead, the solution lies in recognizing the ways that streaming and leasing impact the balance at the core of copyright and look for ways to restore that balance.  Keeping up with technological advancements should not require everyone to give up rights that are basic to the copyright bargain.  And the worst thing would be to give up those rights without realizing it until they are already long gone.  At that point, we may not even remember what we have lost.

This article was originally published on Makezine.com.

Last month, 3Dprintler.com ran a blog post about “Canada’s First STL IP Infringement Case.” I can’t say if it was the first STL infringement case in Canada, or even if there was any infringement under Canadian law. However, this case provides a good opportunity to examine some of the principles related to digital files, 3D printing, and intellectual property from a U.S. legal perspective. At Public Knowledge I’ve been writing about these topics for years.

To contextualize this situation for Make: magazine’s United States readers, I’ll analyze this case as if it happened in the U.S. and was subject to U.S. law.

The story itself is fairly straightforward.  Michael Golubev, the post’s author, put up some files for parts to a quadcopter (a type of remote control helicopter) on the sharing website Thingiverse.  Those files were licensed under a Creative Commons Attribution – Non Commerciallicense.  At some point, the parts appeared for sale on CanadaDrones.com, apparently in violation of both the attribution and the non-commercial requirement of Golubev’s license. Golubev felt that his intellectual property rights were being infringed and sued CanadaDrones.com. The suit was quickly settled, with the parts being taken down from CanadaDrones.com and the individual responsible for the sale removed from his position.

A Bit of Background

Before getting into an analysis of what actually happened here, it is important to flesh out a bit of background. First, what are we even talking about? An STL file is the commonly accepted file format for 3D printed objects. It is something akin to a PDF file for objects — more or less universally accepted, and also something of a pain to work with. In this case the file in question represents parts for a quadcopter.

Second, when thinking about 3D printing and intellectual property law it is critical to keep in mind that you are often working with two separate elements: the object and the file. This can be confusing, but it is important to understand. In many traditional copyright cases, there isn’t really a distinction between the file and protected work. When you write a novel or take a picture, the novel or picture only really exists as the file so you can treat them as the same thing. That novel or picture does not exist outside of the file.

This is not really the case with 3D printed objects. In the world of 3D printing, the file and the object are distinct. This distinction becomes important because intellectual property law may treat the object and the file that represents the object completely differently.

Third, the distinction between copyright and patent is also going to come into play here. Briefly, copyright protects creative (nonfunctional) works. That protection attaches automatically the moment the work is created. In contrast, patent protects functional objects. Unlike copyright’s automatic protection, you need to apply to get a patent.

With that bit of background, we can take a closer look at what happened here.

The Object

Golubev’s parts, not his STL file, is what was being sold on CanadaDrones.com. When Golubev saw the part for sale without permission, he assumed his intellectual property rights were being violated and sued. But (and again, this entire exercise is using U.S. law so it may not actually apply in Canada) it is not entirely clear that Golubev had any intellectual property rights to the object.

The part in question is a bracket to mount a video transmitter. To that end, it is pretty close to a perfect example of a “functional” object. It is designed to perform a specific task (mount a transmitter), and its design is dictated by the practical requirements of attaching the transmitter to the quadcopter.

As such, we can be pretty sure that it falls outside of the scope of copyright protection. The mount may be protectable by patent, but there is no evidence that Golubev applied for or received patent protection for his bracket.

The result? It is likely that the bracket is not protected by any sort of intellectual property right at all. This means that no one needs permission from Golubev to copy, improve, or build upon the bracket. It could be sold far and wide without permission. For the object itself, Golubev’s Creative Commons license is irrelevant. CanadaDrones.com did not need Golubev’s permission to produce the bracket, and did nothing (legally) wrong when it decided to do so. Golubev may not have approved of CanadaDrones.com’s decision to reproduce and sell the mount he designed, but that did not give him a legal right to stop them.

This is a big change for anyone who is coming from a world of code, photographs, movies, and music — all things that are protected by copyright. Once you are in the world of functional, physical objects, you can no longer simply assume that there is some type of intellectual property protecting everything.

The File

If we were just talking about the object, this would pretty much be the end of the analysis. But, remember, with 3D printing we are often talking about two distinct elements — the object and the file. And in this case, the file complicates things a bit.

Unlike a functional object, a file is just code. And code is generally protectable by copyright. That means the even if the object is not protectable by copyright, the file may well be.

If the file is protected by copyright, then CanadaDrones.com would need permission to make copies of it. In this case, Golubev gave CanadaDrones.com and everyone else permission to make copies, as long as they did so noncommercially and attributed the design to him (that’s what that Creative Commons license was doing). If CanadaDrones.com made copies of the file (say, by downloading it or copying it to various printers), they could be violating Golubev’s copyright in the file, even if they were not violating any rights in the physical object itself.

Of course, because nothing is ever easy, this part of the analysis is subject to two additional caveats (sorry about that). First, this only applies to the file itself. If CanadaDrones.com managed to reverse engineer the mount without copying Golubev’s file, there is no infringement because they would not have copied the file itself.

Second, and this is the more complicated one, it may very well be that while code is generally protectable by copyright, the code that simply represents an object is not protectable by copyright.  This possibility is explained in a bit more detail on pages 14-19 of this whitepaper. The short version is that if the only way to represent the physical object digitally is with code that looks an awful lot like Golubev’s, Golubev’s STL file does not get copyright protection at all.  And if the file is not protected by copyright, copying it without permission is not infringement.

The Pictures

At the risk of complicating things further, there is one other element to flag here. As part of Golubev’s Thingiverse page for the mount, he took pictures to give people a sense of how the mount looked and provide a bit of context for its use.

Those pictures are pretty clearly protected by copyright, and CanadaDrones.com’s use of it without permission is straightforward copyright infringement. We could ask if Golubev had permission to use some of the images incorporated into his picture (or if he would even need permission to do so), but let’s just ignore that for now.

The Result

This leaves us in an interesting place. It is a pretty safe bet that CanadaDrones.com did not violate any intellectual property rights by copying the physical object. And it is a debatable proposition if they violated any intellectual property rights by copying the file. Setting aside the use of the picture, Golubev’s claims of infringement are not a slam dunk. When Golubev sued, did CanadaDrones.com push back?

Fortunately, the answer is no. Instead of getting caught up in the legal technicalities and taking this to court, CanadaDrones.com quickly negotiated a settlement with Golubev. The settlement was a reasonable one. CanadaDrones.com paid the fees that Golubev incurred when he filed the suit, mailed him a letter of apology for the incident, and fired the employee responsible for taking the object in the first place.

It may be that a letter would have achieved the same thing as a lawsuit, but as an outcome this feels like a strong one. CanadaDrones.com avoided paying for a lawsuit and all of the bad publicity that would have accompanied it. Golubev got his mount removed and an apology. Everyone walked away happy, regardless of the legal merits of the case.

As a standalone case, it is good to see it resolved amicably and with minimal legal intervention. But as a case study, it is also helpful in thinking about how intellectual property and infringement fit in with the world of 3D printing.

If nothing else, hopefully this example illustrates that throwing around terms like “infringement” in the 3D printing context is somewhat more complicated than music or movies. This is a complex area, made all the more so because so many of us learned everything we know about infringement in the more cut-and-dry world of copyright.

Going forward, we will all end up figuring this out together. But for now, it will be important to remember that just because something is copied does not mean it is infringing. While that can be disconcerting, it can also be a great opportunity. After all, it serves as a reminder that the physical world is full of things for you to copy, build upon, and improve without permission. And that is a great opportunity for everyone.

Image credit: Flickr user Adam Meek

Today Public Knowledge artist-in-residence Elisa Kreisingerunveiled a new blog post detailing how Universal Music Group (UMG) and YouTube turned their backs on fair use.  You should read her full story here, but the short version is that YouTube and UMG agreed to let UMG take down videos, even videos making fair use of UMG music.  That means that UMG could take down videos that did not infringe on UMG copyrights.

Normally, UMG would only be able to take down videos that could infringe on UMG controlled music.  Elisa believes that her mashup video makes fair use of UMG music, and therefore does not infringe on any UMG copyrights.  While the Digital Millennium Copyright Act (DMCA) allows a host like YouTube to keep showing a video if the creator asserts fair use, in this case YouTube decided to ignore Elisa’s argument and let UMG take the video down.

Obviously, this is a problem.  The DMCA notice-and-takedown rules were specifically designed to allow intermediaries like YouTube to host controversial content without fear of copyright liability as long as they stayed out of judgment about what did and did not infringe copyright.

Fair use prevents rightsholders from silencing critics with the threat of a copyright infringement lawsuit.   By giving UMG the ability to take down videos that use their content regardless of fair use, YouTube has given UMG sweeping power to control what is – and is not – said about UMG and UMG artists.  UMG should not be asking for this kind of power, and YouTube should not be granting it.

This agreement also highlights a growing – and troubling – trend in the world of copyright. Rightsholders (and some government officials) have increasingly been calling for “voluntary agreements” to increase rightsholder control and the obligations of intermediaries.  The agreement between YouTube and UMG shows what happens when big industry players are brought together to work something out: users lose.  Large rightsholders use the voluntary agreement frameworks to undermine key user rights. While things like fair use matter a lot to individual users, it may not be worth it for either side to insist that fair use is protected in a voluntary agreement. Users only realize what happened when something they relied upon – like fair use – suddenly disappears from important platforms.

Fortunately, there is an alternative way to address copyright’s problems.  Instead of pulling big players into a back room to cut a deal, we can use the actual legislative process.  While no process is perfect, reforming copyright through the legislative process gives the public, users, and smaller content creators an opportunity to participate.  It increases the likelihood the improvements will benefit everyone, not just the largest commercial parties.

Our copyright system is in dire need of fixing, but private agreements are no substitute for real policy fixes.  As Elisa’s case vividly illustrates, when private agreements undermine fundamental parts of the law everyone except the biggest players lose.

Left image credit: Flickr user NRK P3

Right image credit: Flickr user Jana Zills

Yesterday, the FCC released its proposed open internet (net neutrality) rules.  Although both Chairman Wheeler and the proposal extensively discuss the problems that occur when ISPs get to choose winners and losers online, the proposed rules still create fast lanes and slow lanes on the internet.  Read on to see just how these fast lanes and slow lanes would work.

Minimum Level of Access (the Slow Lane)

Everything starts with what the order describes as a “minimum level of access.”  This is the slow lane.  The order asks questions about how to actually define this “minimum level of access” (more on that below), but the most charitable reading for now is that it is essentially what you currently get with your internet connection.  That is, your current internet connection forms the benchmark for a level of access that ISPs cannot mess with.  Your ISP cannot block content or degrade this connection within this minimum service.  The rules aspire to make this level “sufficiently robust, fast, and dynamic for effective use by end users and edge providers.”  As described below, we’re not sure that is possible.

Everything Else (the Fast Lane)

Once you get outside of this minimum level of access, ISPs have a lot more flexibility to start cutting deals.  This is the fast lane.  ISPs are allowed to start selling fast lane service to whichever “edge providers” (that’s services, sites, businesses, etc. that you would want to connect with online) they want (or none at all), as long as the deal they cut passes a “commercially reasonable” test.

The proposed rules try to define “commercially reasonable” by using a multi-factor test.  These factors include the impact on present and future competition, the impact on consumers, the impact on speech and civic engagement, technical characteristics, “good faith” negotiation, industry practices, and “other factors.”  As you read these factors you may start to think that they are pretty broad, and that the outcome of any one dispute would turn on who happened to be balancing them.  This would be a reasonable conclusion.  What is clear is that some kinds of discrimination will qualify as being commercially reasonable.

A Two-Tier Internet

The result of this structure is a two-tier internet: a minimum level of access that ISPs cannot degrade, and a premium lane with plenty of flexibility for deal making.  The FCC appears to assume that the “minimum level of access” will remain a vibrant space for innovation and communication.  Unfortunately, this assumption is flawed.  Yesterday’s post had details of 5 reasons why this plan can never make sense, so for today we can just focus on two.

The Slow Lane Will Always Be Bad (Economic Reason)

This one is easy to understand.  Once there is a split internet, ISPs have the incentive to push every new innovation towards the fast lane.  Innovation in the fast lane means extra revenue, while innovation in the slow lane gets them nothing.  Investments that would have gone into the entire network before the split will now only go into the fast lane.  That means that the forces that have traditionally increased speeds for everyone will now be reserved for those who can pay extra.  All the while, the slow lane just keeps getting slower in comparison.  After all, a slow slow lane makes the premium fast lane an even better value!

The Slow Lane Will Always Be Bad (Regulatory Reason)

One response to these economic forces would be to impose some sort of regulatory requirement of slow lane improvement.  The FCC itself proposes three possible ways to do this: a best efforts delivery requirement, a minimum quantitative performance requirement, or an objective, evolving “reasonable person” standard. 

Unfortunately, none of these will protect a viable slow lane over time.  As discussed in detail inyesterday’s post, none of these factors can take into account the innovation that we don’t see in a split internet.  We simply don’t have a way to account for all of the innovation that does not show up because it can’t afford the fast lane to get off the ground.  Beyond that, there will always be excuses for why the slow lane can’t quite incorporate this improvement or that improvement, or why it is OK that the slow lane could not quite hit the benchmark it was supposed to. 

There is Still A Good Option

Most of the FCC’s text introducing the proposed rules does a good job of explaining all of the problems with a non-open internet.  But when it comes time to actually protect the open internet, the rules fall short.  In large part, this is because the rules are bending over backwards to comply with the ruling from the DC Circuit earlier this year that struck down the old open internet rules.

But this path is not the only one available after the DC Circuit’s ruling.  If the FCC reclassifies broadband internet access as a Title II common carrier (there’s that term again), it can just prevent ISP discrimination outright.  Under Title II, there it no need to create a fast lane that allows “commercially reasonable” agreements and a slow lane where everything is treated equal.  Instead, content can just be treated equally.

That’s why we are urging the FCC to take steps to actually protect an open internet.  And why you should too.

Image credit flickr user RS Sinclair

 

Today the FCC released its Open Internet Notice of Proposed Rulemaking – basically a draft version of its net neutrality rules.  While there is plenty to say about them, in this post I’d like to focus on one part – fast lanes.  Read on for all (or at least some) of the reasons they are a bad idea.

Although the FCC appears to have backed away from its original embrace of internet fast lanes and slow lanes in response to massive public outcry, and Chairman Wheeler made a passionate presentation about the value of a free and open internet at today’s meeting, the proposed rules still imagine a world where some sort of bifurcation of the internet is allowed.  Specifically, it assumes two types of service.  Within the “minimum level of guaranteed access,” (something that could also be considered the “slow lane”) the proposed rules would prevent at least most blocking and discrimination.  But beyond that unknown minimum level of guaranteed access (could be thought of as the “fast lane”), discrimination would be allowed as long as it was “commercially reasonable.”

That is a huge problem. Fundamentally, this is because there is no real way to have a internet divided between fast lanes and slow lanes that also brings all of the benefits that we have come to expect from our current, single, open internet.  Why is this so?  Let’s consider the ways.

1. Internet for Haves, Internet for Have-Nots

A fast lane/slow lane internet adds a new, unwelcome element to innovation online.  Traditionally, new services and websites succeeded or failed based on the quality of their offering.  But in a fast lane/slow lane internet, success goes to the services and websites that can afford to pay off the biggest ISPs.  Service beyond a “minimum level” is often where innovation happens.  It shouldn’t only be available to some.

2. ISPs Get to Decide Who Wins

Of course, “available to some” assumes that ISPs are even interested in doing business with a new service or site.  The proposed rules would give ISPs a lot of flexibility to pick winners and losers online, and simply ignore some players all together.  As long as its decision is commercially reasonable, an ISP could just freeze someone out of the fast lane before they even started competing.

3. The Slow Lane Will Always be Bad

This is just common sense.  If you are charging people to get into the fast lane, it has to be worth the money.  To put it another way, the slow lane has to be bad enough to justify paying to get out of it.  If the slow lane really is good enough for anything that you want to do online, why would anyone ever pay to get into the fast lane?  The result is that the slow lane will always be at least inadequate enough to push a critical mass of users towards the (paid) fast lane.

4. Investment Flows to the Fast Lane

Going forward, ISPs will have a choice.  Should they invest in the fast lane or the slow lane?  Since they get to charge extra for one and not the other, that becomes an easy decision.  You can be sure that any new innovation that would make the network faster or more responsive will debut in the fast lane.  And it may not ever trickle down into the slow lane.

5. Hope You Enjoy the 2014 Internet – It Just Became the High Water Mark

The proposed rules suggest that we don’t need to worry about a fast lane, because the slow lane (the “minimum level of access”) will always be good enough to protect innovation.  In fact, splitting the internet would all but guarantee that “good” internet circa 2014 becomes the baseline well into the future.  Put another way, the slow lane is stuck at today’s average level of service.

That is because benchmarking an “adequate” slow lane becomes all but impossible once you have split the internet.  In the absence of a unified open internet, how could you set the slow lane standard?  One option would be to look to other countries.  But the United States is already well behind other countries in broadband speed, and even today there is always an apologist willing to explain why it is OK that the US is falling behind.  There is no reason to think that would change in the future.  Even if you were willing to use an international benchmark, what would it be?  “The United States shall always have at least the 16th fastest broadband in the world”?  That’s nothing to strive for.

Another way to approach it would be to assume some sort of annual rate of improvement, or some sort of rate that marked “adequate” broadband speed improvements.  But what would the rate be?  Until 2008, the FCC defined “broadband” as 200kbps (that’s kbps, not Mbps).  In 2010, it updated that figure to 4 Mbps.  Those are not numbers that people should have been satisfied with, even at the time.  And even a speed increase rate that looks ambitious today could be rendered glacial by an unexpected innovation.

More importantly, since the slow lane would undermine the virtuous cycle of broadband innovation (high speeds encourages new services, which themselves encourage higher speeds, which starts the cycle over again), we may not even see the innovation that would push up speeds on a single, neutral network anymore.  As venture capitalist Fred Wilson memorably dramatized, we won’t even know what we are missing when innovative startups that push the network never get funded.  Those startups don’t file a complaint with the FCC before the fizzle out.  They just disappear.  You may never miss what you never know, but it will be a shame when the fast lane/slow lane internet settles into a comfortable dotage where real innovation is just too much trouble.

The Good News

The good news is that the FCC’s proposal is just that – a proposal.  There is still time to change it, and to convince the FCC to create real net neutrality rules that prevent paid prioritization and internet fast lanes.  But that opportunity won’t last forever.  So act now, and tell the FCC where you stand.

Photo: Ironic Pothole Mayhem by Michael Gil.