An Oldie but a Goodie

The issue of criminals and their published memoirs is certainly nothing new, but the British government has come up with a new proposal to stop ex-convicts from being able to profit from published works about their crimes.

The operative word here being "profit", the current proposal doesn't seem to restrict these criminals from getting their life experiences published, just that they can't get any kind of profit from them.

Good thing Martha Stewart is American.

By virtue of the fact that this issue is ancient, you won't see this being debated anymore (certainly not in the last few tournaments). This issue is a good one for beginners to train on because it requires more logical thinking and argumentation rather than knowledge on technical matter (although being able to cite a few examples always helps).

For example, why is it so wrong for criminals to profit from publishing their criminal acts? By serving their sentences, they've already paid their debt to society. Why should additional, across-the-board, penalties be accorded to them after the fact?

On the other hand, as the article says, criminals being able to profit from their works goes against the very principles of natural justice, and justice isn't just measured by how much time is served in prison.

One can even argue that the proposal is trying to have its cake and eat it too - they recognize the value of these published memoirs (after all, they're not disallowing it) but they don't recognize the value of compensation for these criminals' experiences. What makes these two values so mutually exclusive? And wouldn't that be self-defeating since without any form of monetary compensation, criminals won't be inclined to share their life stories and thus destroying the value that they so want to protect?

Really good issue. People should start discussing this again.

Further discussions on intellectual property and copyright law.

As you will read, the discussion on intellectual property and copyright law goes way beyond mp3s and AIDS cocktails.

Can fashion be copyrighted? - the Wall Street Journal talks about the infamous practice of producing knockoffs.


New Era of the Recipe Burglar - the magazine Food and Wine deals with the latest trend of copyrighting recipes.

For a time, people were also discussing plagiarism in the context of Architectural Design. One famous case is the one against David Childs for his design of the Freedom Tower.

Considering all of this, I'm starting to think that the entertainment industry's obssession with DRM (digital rights management, you should know this) has made the idea of intellectual property trendy. Which wouldn't be that bad, until you realize that it has come to the point where people are already copyrighting phrases (read: Donald Trump).

Just Enough Piracy

It's not news that the main reason the movie and television industries are wary of BitTorrent is that they're freaked out by the music industry's experience with piracy. Although they see the economic advantages of P2P distribution, they're concerned that once they put their stuff out there, even wrapped in triple layers of kryptonite DRM, it might be cracked and then circulate in unprotected form. For movies, that's lost revenues. For TV shows, that means ads could be stripped out, expiration routines could be removed and (gasp!) content could be modified or remixed.

All that counts as Very Scary Stuff to industry executives, and as a result they're looking for "strong" DRM before they consider letting their premier content circulate online. This is a mistake, for two reasons:

The first is about the user experience: Any protection technology that is really difficult to crack is probably too cumbersome to be accepted by consumers.

We've seen all sorts of failures of this sort before, from dongles to laborious and confusing registration schemes. Each seems better at annoying consumers than at building markets. The lesson from these examples is that zero-percent piracy is not only unattainable, it's economically suboptimal. If your content is uncrackable, it means you've probably locked the market down so tight that even honest consumers are being inconvenienced.

Instead, efficient software and entertainment markets should exhibit just enough piracy to suggest that the industry has got the balance of control about right: not too loose and not too tight. That number is not zero percent (which requires protection methods so invasive they kill demand), and it's not 100% (which kills the business). It's somewhere in-between.

The second reason the quest for zero-piracy is a mistake is an economic one: piracy can actually let you raise your prices.

I'll give you a surprising example. I was chatting with a former Microsoft manager the other day and he revealed that after much analysis Microsoft had realized that some piracy is not only inevitable, but could actually be economically optimal. The reason is counterintuitive, but intriguing.

The usual price-setting method is to look at the entire potential market, from the many at the economic lower end to the few at the top, and set a price somewhere in between the top and bottom that will maximize total revenues. But if you cede the bottom to piracy, you can set a price between the top and the middle. The result: higher revenues per copy, and potentially higher revenues overall.

(This is, by the way, the opposite of the conventional economic approach to developing-world piracy, which is to lower the cost of a product closer to the pirate version, closing the pricing gap to try to win customers over to the official version. In practice, however, the pirate price is so low that it's rarely possible to close that gap enough to make much of a difference.)

Add to this the familiar (if controversial) argument that piracy helps seed technology markets, and can be a net benefit. Especially in fast-developing countries such as China and India, the ubiquity of pirated Windows and Office have made them de-facto national standards. Few users could have paid for the retail versions at the start, but now that the spread of cheap technology, including free software, has led to an economic boom, Microsoft is finding a nice market for commercial software at the very top, in big companies and government offices.

When all these effects are considered, it appears that there actually is an optimal level of piracy. That right level would vary from industry to industry. Today the estimated piracy rates are 33% for CDs and 15% for DVDs. The industries say that's too high, but most anti-copying technologies they've brought in to lower that figure have proven unpopular. Would even tighter lock-downs help? Probably not. Maybe 15%-30% is simply the market saying that this is the optimal rate of piracy for those industries, and any effort to lower that significantly would either choke demand or push even more people to the dark side.

So the moral for video content holders and others considering DRM: be careful what you ask for, because you just might get it. "Uncrackable" DRM could make the P2P problem worse, by driving more users underground and depressing prices. Don't imagine that if you release content in a relatively weak DRM wrapper (like today's DVDs) and copies get out that the whole market will collapse. Instead, you may find that piracy stays constant at relatively low levels, leaving the rest of the market happier and more profitable.

The lesson is to find a good-enough approach to content protection that is easy, convenient and non-annoying to most people, and then accept that there will be some leakage. Most consumers see the value in paying for something of guaranteed quality and legality, as long as you don't treat them like potential criminals. And the minority of others, who are willing to take the risks and go to the trouble of finding the pirated versions? Well, they probably weren't your best market anyway.

http://www.thelongtail.com/the_long_tail/2005/08/just_enough_pir.html

Search and Rescue

By TIM O'REILLY

Sebastopol, Calif.

AUTHORS struggle, mostly in vain, against their fated obscurity. According to Nielsen Bookscan, which tracks sales from major booksellers, only 2 percent of the 1.2 million unique titles sold in 2004 had sales of more than 5,000 copies. Against this backdrop, the recent Authors Guild suit against the Google Library Project is poignantly wrongheaded.

The Authors Guild claims that Google's plan to make the collections of five major libraries searchable online violates copyright law and thus harms authors' interests. As both an author and publisher, I find the Guild's position to be exactly backward. Google Library promises to be a boon to authors, publishers and readers if Google sticks to its stated goal of creating a tool that helps people discover (and potentially pay for) copyrighted works. (Disclosure: I am a member of the publisher advisory board for Google Print. As the name implies, it is simply an advisory group, and Google can take or leave its suggestions.)

What's causing all the fuss? Google has partnered with the University of Michigan, Harvard, Stanford, the New York Public Library and Oxford University. Google will scan and index their library collections, so that when a reader searches Google Print for, say, "author's rights," the results point to books that contain that term. In a format that resembles its current Web search results, Google will show snippets (typically, fewer than three sentences of text from each page of each book) that include the search term, plus information about the book and where to find it. Google asserts that displaying this limited amount of content is protected by the "fair use" doctrine under United States copyright law; the Authors Guild claims that it is infringement, because the underlying search technology requires a digitized copy of the entire work.

I'm with Google on this one. It would certainly be considered fair use, if, for example, I circulated a catalog of my favorite books, including a handful of quotations from each book that helps people to decide whether to buy a copy. In my mind, providing such snippets algorithmically on demand, as Google does, doesn't change that dynamic. Google allows click-through to the entire book only if the book is in the public domain or if publishers have opted in to the program. If it's unclear who owns the rights to a book, only the snippets are displayed.

A search engine for books will be revolutionary in its benefits. Obscurity is a far greater threat to authors than copyright infringement, or even outright piracy. While publishers invest in each of their books, they depend on bestsellers to keep afloat. They typically throw their products into the market to see what sticks and cease supporting what doesn't, so an author has had just one chance to reach readers. Until now.

Google promises an alternative to the obscurity imposed on most books. It makes that great corpus of less-than-bestsellers accessible to all. By pointing to a huge body of print works online, Google will offer a way to promote books that publishers have thrown away, creating an opportunity for readers to track them down and buy them. Even online sellers like Amazon offer only a small fraction of the university libraries' titles. While there are many unanswered questions about how businesses will help consumers buy the books they've found through a search engine for printed materials that is as powerful as Google's current Web search, there's great likelihood that Google Print's Library Project will create new markets for forgotten content. In one bold stroke, Google will give new value to millions of orphaned works.

I'm sorry to see authors buy into the old-school protectionism of the Authors Guild, not realizing they're acting against their own self-interest. Their resistance can come only from a failure to understand the nature of the program. Google Library is intended to help readers discover copyrighted works, not to give copies away. It's a tremendous service to authors that will help them beat the dismal odds of publishing as usual.

Tim O'Reilly, a publisher of computer books, is the co-producer of theWeb 2.0 conference.