This may not be what the corporate sponsor Google, which benefits from internet piracy and fights enforcement proposals, had in mind when it funded the research. Google is currently leading the opposition to the new SOPA legislation in the US, which obliges service providers to take greater responsibility.

Perhaps, as in Brecht’s poem, Google wishes “to dissolve the people and elect another”, until they get the answer they want.

Columbia University, who Google funded to conduct the survey, has a very hard time spinning it favourably for their corporate paymasters. They resort to the old trick of rephrasing the question until it got the desired answer. (Statisticians sometimes do something similar: it’s called “torturing the numbers until they confess.”)

Asked if websites should be “censored”, 46 per cent said yes, and 49 per cent said no. Fewer agreed if the question was posed in a way that implied legal content was being accidentally blocked. And asked if “the government” should “censor” websites, the number fell still further, with 36 per cent in favour and 64 per cent disagreeing.

The researchers stopped short of asking whether the public approved of the government unlawfully kidnapping their children while they censored websites and burned the Holy Bible just for fun, which is a pity. But you get the general idea. The answer depends on the question.

Two UK surveys have both shown strong public support for stronger law enforcement for online infringement. Even pirates agreed with the proposition that they were doing something a bit iffy, and would stop.

Which brings us to what wasn’t asked in the survey. There are some serious omissions.

In the UK, a mere 11 per cent disagreed with the statement that: “It is important to protect the creative industries from piracy.” But remember this new study is Google-funded research; they don’t want vital context like that spoiling the numbers. The same UK survey also showed that whacking free-riders is popular; 51 per cent polled in the UK thought serial copyright leechers should be punished more strongly, including many “pirates”. That question wasn’t asked by Columbia, either.

The survey instead asked if people had ever committed online copyright infringement, and the answer tells us something we already know: many people have, and the number rises among under-30s. It doesn’t ask if this is a regular occurrence, and how much is casual and how much is “hardcore”. The survey does ask how much of people’s personal collection is pirated, but what would be more useful is a “flow rate” (like the GDP measure), not the accretion, so we haven’t really learned anything about habits or behaviour.

The researchers instead ask whether the public like any of the punishments on offer, and guess, what? They don’t really like any of them very much.

Early data from France suggests most people stop pirating after just one letter, the number of people who have received two is tiny. Spending money on recorded music is now optional, and the copyright industries hope that people who love music go back to buying more, rather than spending the “saved” cash on beer and other entertainment, as they are free to do now. This is the justification for the legislation.

(Which is clumsy stuff, as your reporter never ceases to point out; there are other ways of discouraging anti-social behaviour than blocking sites).

No industry research into piracy is ever believed by opponents of digital copyright enforcement, the so-called “copyfighters”. This is for two reasons: studies have in the past have notoriously exaggerated the economic impacts of piracy for tactical reasons. Much like alarmist Greens, copyright groups want the threat to be seen as exceptional, requiring exceptional action. But secondly, pirates don’t want to acknowledge that piracy does anyone any harm – so they block their ears.

“What’s that you say? Never paying for anything hurts the creator? That can’t be true. And oh, I can’t hear yoooou!”

In fact, that seems to be exactly what happened here.

Big media companies would like the freedom to use artwork they find on the web without having to worry about lawsuits or negotiating market rates with creators. The web is awash with unattributed “orphan works” – and thanks to cheaper technology, social networks and self-publishing, there’s more being published than at any time in history.

There’s also a strong case for releasing enormous amounts of cultural work that doesn’t have a traceable author, and institutions such as the British Library would like to release this and commercialise it. These are also, confusingly, called “orphan works”.

The problem is, how can you release these cultural works without imperilling the professional market or the rights of amateurs whose work can end up as valuable front page commodity?

The British Library’s Ben White went head-to-head with Paul Ellis of the photographers’ insurgency group Stop43 – formed to fight orphan works legislation in the Digital Economy Act last year. It was feisty stuff and neither would back down.

While the snappers had carefully thought about the cultural problem – and had a proposal to encompass it – the British Library’s White had no time for the photographers. He favours compulsory extended licensing – which confiscates their digital copying rights – for the greater good. It works in Canada and Japan, he says, and if there are problems with it, they’re not apparent.

Ellis pitched the proposed National Cultural Archive, which would be an online marketplace that you can upload any picture to and Getty’s PicScout image recognition software will find similar artwork that’s available – be it royalty-free or with a price tag. This is useful if you have an image of unknown origin, or a picture you can’t use for copyright reasons, but would be happy with something similar.

Ellis likened the system to the proposed Digital Copyright Exchange marketplace, but described it as “rather more ambitious”. The copyright exchange was put forward by Ian Hargreaves, who led the so-called Google Review into intellectual property.

“Everyone is now a photographer. Those of us with Facebook accounts are published photographers,” said Ellis.

“Amateurs can match professionals… a photograph you take that appears on a front page has great commercial value – so why should you not participate in that value?”

The British Library sits on a lot of great material and has a powerful moral case for making its archives more widely available: that is its mission.

But it doesn’t seem to be able come up with an argument that avoids making other people worse off as collateral damage; worse, it seems oblivious to those consequences. This makes the library look extremely arrogant, and it projects a tremendous sense of entitlement. “We can see how orphans could harm anyone,” they argue, “but that’s not our problem.”

A good litmus test of any claim of digital rights is whether its success causes avoidable collateral damage to other groups. Should one group lose just so another can gain? MPs were a bit more aware of the complexities of the debate, after this week, and quite a bit better informed.

In the meantime it seems bizarre that Facebook and the BBC are able to strip metadata from photographs that are uploaded to the site en masse. They know the authorship of almost everything uploaded to the site – but then throw that away. They’re “orphan creators” on an industrial scale.

And it’s fascinating to see big publishers, who complain long and hard about internet piracy, suddenly twig the financial benefits of rolling over copyright.

Yarr!

Now we know why what was widely called the “Google Review” into intellectual property came to the conclusions it did. And we have it from the horse’s mouth: not Google, but Professor Ian Hargreaves and his team at the IPO, who “guided” him.

If you recall, a year ago the Prime Minister David Cameron revealed that the Google founders that they could never have founded Google in the UK, because of its copyright law. Even Google could never substantiate the quote, or provide a citation. Rather than getting a public inquiry, and shaming, of a foreign corporation for misleading our PM so badly – Google got the government to explore how the law could be altered… to benefit companies like Google.

So the review began with a mistake, and its guiding philosophical idea was a naive, simplified, and fantastical version of the world. This set the tone for what followed.

Hargreaves came across as wry and likeable, as he always does, but his words revealed the bien pensant view of the internet, its potential, and its commercial challenges.

“Politicians are afraid to address [copyright] because of fear of damaging the entirely legitimate and desirable wishes of musicians and other creators to have a fair level of protection, so they can make a return on their own work. I do disagree how this machinery has spread, and become an undesirable regulatory restraint on the internet [our emphasis] and the internet’s effects on the economy“

He continued:

“That is a very, very big risk for an advanced knowledge economy like the UK to run. In my view we can’t afford to run it. It’s urgent; the government has to take the action I have recommended it take”.

The sky was falling, he’d felt a piece of it land on his head. And he hammered home this urgency in his conclusion, in case you missed it:

“The digital revolution is not one-third complete, based on the penetration of the internet around the world. If we don’t ‘Get with the Pace‘, we will pay a significant economic price.”

There are several flaws to this approach.

The graph below illustrates the recent commercial fortunes of two technology companies. One of these has negotiated with incumbents and innovated to establish platforms that create new markets. It didn’t lobby for the rules to be changed. It worked with what rules there were. It created an explosion of economic value.

The other company, by contrast, lobbies intensively for the rules to change (one of the recipients of its cash shared the stage with Hargreaves), so its costs can be lowered. It’s why we were here. The first is Apple, and the second is Google.

Now, what this shows that there is more than one approach to dealing with incumbents and the legal and regulatory status quo. The empirical data here clearly tells us that platform creation within the rules is not only possible, but actually far more lucrative than the slightly sleazy backroom business of lobbying for the rules to be changed. It also demolishes the “pace” argument – which is an appeal to the Precautionary Principle: that if we don’t do something drastic very soon, we’ll face a far greater cost. (See Iraq, WMDs). By creating markets for digital content, Apple ran counter to the perceived wisdom of internet gurus that people would never pay for it. Newspapers have followed suit with paywalls, with some success. Apple killed Free.

Hargreaves’ view of internet growth is based on one particular view of the world – and it happens to be one one that isn’t very good at producing growth. Hargreaves is evidently a decent and intelligent man, he is just basing his judgments on a view of the world that is Utopian, and feels very dated. This leads to the other problem, which is that his argument is based on exceptionalism, and makes demands of groups that it shouldn’t.

Viewed sociologically, the argument is that one group needs to become weaker, just so another can prosper. History shows that time and again, technological innovation allows many parties to prosper – no technology content market has yet done otherwise, or removed rights. If I was an internet guru, I would call this the Orlowski Principle, and Tweet it like mad. But it’s actually the way good policy is conducted since the Enlightenment.

Yet for some reason, Google prefers to seek to change the rules rather than create new markets. Your speculation on why they adopt this approach might be is as good as mine.

This Google isn’t working

Google isn’t very good at consumer products, as the late Steve Jobs told Larry Page, but it should be able to do large scale platforms. Maybe it isn’t very good at doing the negotiations – with finance and creative industries – needed to push this through. Maybe all of its best ideas are invisible. Maybe it doesn’t do ideas. Maybe it’s innately fearful and conservative – as large record companies were for years, clinging to the CD, and failing to create digital markets or physical replacements.

Google is still a one-club golfer, and that club, its advertising brokerage, doesn’t really begin to unlock the potential value – as Apple’s content store has shown. Whatever the reason(s) may be, academics such as Hargreaves seem not to have really taken these developments on board: they appear only too keen to endorse Google’s view as the one true way of achieving growth.

For Hargreaves, the internet creates such a unique, singular moment of historical anxiety, we can suspend traditional ideas of fairness. It shouldn’t make us deaf, though.

Read more at The Register.

Killock said Netflix had looked at the UK market and spurned it for South America instead.

“Our digital market in film is falling behind Colombia,” he told MPs.

This is mystifying, since 10 days ago Netflix revealed its plans for its UK launch – giving analysts and press the full details. The service will launch early next year.

We wondered if it was a slip of the tongue: perhaps he meant Hulu? But for everyone’s benefit, he repeated the claim later on in the session: Netflix isn’t coming to the UK, and copyright law is to blame.

So is the UK months behind the rest of the world? Not really. Netflix entered the Latin American market just seven weeks ago.

Whatever points ORG may have had to make on government digital policy became easy for MPs to dismiss. One member remarked on the “ferocity” of Killock’s contribution, and bluntly told him that the evidence contradicted his statement.

It’s yet more amateurish campaigning from the group. Surely they can afford last week’s papers?

Britain could have invented the iPod – if it wasn’t for a copyright law that everyone ignores. So says the UK government in a remarkable economic justification of the so-called “Google Review”, the Review of IP and Growth led by Ian Hargreaves. The document was written for the government by civil servants at the IPO, part of the business department BIS.

“UK firms were unable to initiate this type of innovation because of the private copying restraints,” the bureaucrats assert. They go on to predict that lots of innovation will instantly materialise if the format-shifting exemption is introduced without compensation, and that British consumer electronics companies will once again rule the world – bringing in unimaginable wealth.

“The potential size of new markets would increase as applications expand, and as the number of internet users continues to grow. If this exception enables firms to create new products and markets over the next decade of up to half the size of the iPod market over the last decade, this could grow the economy by up to £2bn per annum at the upper end of possible outcomes.”

There are several flaws to this claim.

One is that UK courts have expressly set the precedent that format-shifting machines do not infringe. The only copyright case fought over a consumer electronics device (CBS vs Amstrad) ruled that the manufacturer marketing a device capable of infringing uses – in this case a double-speed twin cassette deck – was not liable. You would expect the civil servants at the IPO to know this.

The Amstrad decision cleared the way for a very liberal trading marketplace – and millions of DVRs. Not a single consumer has ever been prosecuted for format-shifting, either. The argument hinges on a “chilling effect” that exists entirely between the IPO civil servants’ ears, and has no precedent.

The second flaw is that British technology companies have come close to launching iPods, and were deterred not by obscure copyright provision, but by something much more familiar to British entrepreneurs.

The first hard-disk MP3 player was almost British, in fact, and I told the story here. Psion was approached in 1999 with a clever design for a digital music player. Exploratory work was conducted on it by top engineers including Ken McAlpine (later Apple’s head of portable engineering) and David Tupman (later Apple’s head of iPod engineering). But management felt it was too risky, and possibly too early. At no point was format-shifting a factor in the decision. (Psion did go on to launch an innovative DAB radio, the WaveFinder.)

It is worth recalling too that Apple’s own iPod, launched in October 2001, was a flop for a considerable time. It only began to gain traction when Apple launched the music acquisition part of the system, and ported iTunes to Windows, in 2003.

A third assumption is that the legal status of the exemption has a bearing on consumer behaviour. But as we’ve seen, no attempt has ever been made to prosecute anyone for home-taping a radio broadcast, making a tape of a CD, or shifting a ripped CD to an iPod.

And finally, the IPO assumes that UK consumer electronics companies would gain all the “benefits”: not Apple, Toshiba or Panasonic. That would be nice. But British consumer electronics companies don’t just pop out of the ether overnight, and if they were to, it would be not be thanks to obscure copyright exemptions.

Think of a number

The “economic justification” is full of such dubious calculations – many numbers have been plucked out of the air at random – and loaded statements. One example is an astronomical saving attributed to the creation of a single Europe-wide patent system. UK businesses would see a “saving”, the bureaucrats reckon, of €13,192 per UK patent filed – assuming automatic renewal, no UK legal fees and no further legal fees for the applicant anywhere in the process. A computer model was used to estimate UK growth under optimal single market conditions, a subset was attributed to IP businesses, and the handle of the computer model was then cranked to produce another figure. This comes out to a “£2.1bn per annum” saving to the UK’s GDP. Yet no other reform of the system is recommended, and the bureaucrats (somewhat grudgingly) accept that with longer delays to the process, costs to business would actually go up, not down.

In his report, Hargreaves called for more reliable empirical economic evidence. This certainly isn’t it. It’s an insult to the intelligence.

It is a mystery why our bureaucrats, who here show themselves to be anything but impartial, are driving policy. But this appears to be the rule now, rather than the exception. In an article by James Forsyth, political editor of The Spectator, in the magazine’s current issue, he writes:

“I know of one Cabinet member who estimates that only four of his 22 colleagues actually lead their departments: the rest just represent the views of their officials to Cabinet and Prime Minister.”

Britain’s unelected government appears to be more powerful than its elected one. And without political oversight, and left to their own prejudices devices, they don’t half come out with some rubbish.

Lib Dems are appealing to the vital online pirate vote at this year’s party conference, putting the membership on collision course with LibDem ministers in the coalition government. In a new IT policy paper called “Preparing The Ground”, a team of party activists led by Cambridge MP Julian Huppert calls for the Digital Economy Act to be gutted of its copyright measures. It also threatens new legislation to ensure all “traffic flows at the same speed”, and wants the IR35 contractor tax suspended.

Senior party figures speaking on condition of anonymity expressed dismay at the proposals. The LibDems are in government for the first time in 70 years, and have attempted to leave behind the Party’s old “sandal-wearing” image as a haven for single-issue-fanatics.

Two options are proposed for the Digital Economy Act: removing all the copyright legislation from the DEA, or calling for an additional vote on most of it. The second proposal also calls for the repeal of web-blocking powers, but Ministers say they won’t implement them anyway. The Digital Economy Act was passed by 189 votes to 47 last year.

The bearded, bicycling Huppert, a former UN youth organiser, told us he thought copyright legislation that existed prior to the DEA is sufficient for today – and he had never seen an online copyright enforcement measure he liked.

“Nobody has yet suggested one that is workable and proportionate,” he said.

That’s a pretty hard line, and one sure to bring cheers from hardcore downloaders. In the absence of sticks, Huppert told us he wanted education and better services. “There are already laws,” he told us, “people get prosecuted under these existing laws for copyright infringement online.”

The activists also call for the return of Clause 43 orphan works legislation, bringing in extended collective licensing for photographs and illustrations where a publisher can’t be arsed to ask permission can’t find the creator.

One speed for all

Also on the boilerplate list of digital activist grievances is a threat of new controls on network operators (aka “net neutrality”), with the paper insisting that more regulation “is liberal”. TV and video users and producers might be dismayed to read that “it is better to provide a level playing field – where traffic flows at the same speed“.

Video and gaming packets need to travel considerably faster – with lower latency and jitter – than bog-standard web-pages. Surely this was a typo?

“I can see the argument for some kind of traffic-shaping,” Huppert says. “That’s already done. That’s fundamentally different from stuff from the BBC going at a different bitrate.”

But wouldn’t that outlaw me paying for a premium movie service over IP? What harm was a private transaction like this doing to anyone?

That was “less” problematic, he said. “There’s nothing wrong with paying for a faster connection, or Channel 4 charging for movies, or dealing with an ISP to transmit them faster. What I don’t wish to see is Google paying money to an ISP to make Bing run slower.”

Huppert said the precedent was charging road users for premium services – fast lanes. “We don’t have roads you have to pay for,” he told us.

[Actually, we have several.]

But hang on – aren’t toll roads pretty common everywhere in the world already? The justification shifted once again: Facebook shouldn’t be able to withhold its service from an ISP by demanding money. Maybe they should try it, I suggested, as they wouldn’t need to scrape and hoard so much personal information. It almost sounds like an honest business model.

Nevertheless, the paper threatens that “privileging certain types of content or throttling download speeds on certain websites will lead inevitably to regulation”. Perhaps this is somewhat optimistic.

negative effect on creative industries, and proposes a new study to produce the answers desired. A move to allow the free public access to “the BBC archive wherever possible” was dropped from the published draft, El Reg understands.

I asked Huppert if the LibDems had done a costing of the suspension of IR35? “We don’t have the resources,” he said.

“In an ideal system there wouldn’t be such loopholes. I can understand why IR35 was invented. But it clearly doesn’t work very well, causes a large number of problems, and doesn’t collect very much revenue. ”

A bit like the 50p tax, then?

Julian laughed.

The LibDems will vote on a Policy Motion (F28) on Monday, 19 September

[link]

Levine’s book is a story of the digital copyright wars.

“I tried to write in an analytical way about something people get very emotional about. I don’t really believe the entertainment industry is good and the technology industry is bad; I just don’t see it as a morality issue. Businesses are in business to make money,” Levine says.

The book details the calamitous decisions made by the music business, particularly in its suing of end users for infringement. “In a few years,” he writes, “the major labels managed to destroy the cultural cachet they had spent decades building.”

The book also follows in detail Google’s “war on copyright” and the academics and activists who benefit from it. It comprehensively demolishes the arguments put by Lawrence Lessig, who helped create the cyberlaw industry. This is a book with masses of solid, meticulously researched detail.

I caught up with Levine in Berlin.

Q: What do you see as the culture industries’ biggest mistakes? You focus a lot on music …

Levine: The music industry made a lot of mistakes. They could have launched an iTunes store. And suing individuals was a mistake. I don’t think there’s anything wrong with companies suing companies: Napster, or Grokster for example. But suing people created publicity so bad that it made it very hard to get a legislative solution. It was a complete disaster.

But you have to remember that there’s a lot of things that aren’t legally or financially practical for an incumbent to do. You have a game theory-type problem: the establishment player has a lot to lose and has to play by the rules. A startup doesn’t have to.

People say they should have worked with Napster. But the labels would have been trading quarters for dimes, and they didn’t even know those dimes would be worth 10 cents. It assumes Napster would have worked out as a business.

I also think labels should have cut CD prices faster. But did you know Universal Music cut CD prices 25 per cent in 2002, and sold 13 per cent more CDs. You lose money that way; we’ve seen that again and again. We’ve seen iTunes raise the price of the best-selling songs from 99 cents to £1.20 and make more money. People aren’t price-sensitive as much as they’re convenience-sensitive. They want it when they want it.

The record companies should have done something like Hulu. I gather there were antitrust issues. Hulu does a good job, and it also helps TV companies control things a little bit. Hulu also makes money. The labels together could have done something pretty well.

Q: And DRM?

Levine: A lot of people say DRM was huge problem. But when EMI eliminated it, it didn’t create a huge boost in sales. People hate DRM in that it won’t let them do what they want, but very few people are against it on principle. I haven’t seen any evidence that people care. Sales don’t respond to DRM policy.

People want something easy to use and iTunes is easy to use. Convenience is what iTunes delivers.

Q: Your argument is really to get money flowing to the creators online.

Levine: We’ve had a market for IP for at least 300 years. I think it works pretty well. If you compare the cultural output of countries with a market for IP and those without, it’s clear that a market gives you better IP on an economic level, and possibly on a cultural level too.

If you look at West Germany, they produced Herzog, Fassbinder, Can, Neu! and Krautrock. In East Germany they produced, well, maybe some good TV shows, but not ones they could export.

Or if you look at Nigeria and Brazil, they’re countries that in the 1960s and 1970s had great pop music that changed the world. In Brazil, you had Tropicalia, Gilberto Gil and Os Mutantes; people still buy those records today. in Nigeria, you had Fela Kuti, who is still as iconic as he ever was. This generated money sent back to Brazil and Nigeria. Now people are still making the music but not a lot of money is going back. And those countries could use the money. The culture business is one that generates jobs that are pretty good, and doesn’t create a lot of pollution, compared to BP.

If the culture business disappears, then culture is not going to disappear. I use the example of The Beatles without George Martin: they would have continued to be great songwriters, and we’d have the songs, but they wouldn’t have made great albums.

You can’t have an economy without a market. You can’t have a market without property rights, and you can’t have property rights without a means of enforcing those rights. Copyright has some aspects of property, and one of these is you can’t sell something if somebody else is giving it away.

Q: There’s a whole chapter on Google, which if people aren’t familiar with it, might come as a bit of a shock.

Levine: There’s a popular narrative and that says Google is cool – and it’s a very coherent story. There are even parts of it that are true. What I wanted to do in the book is a factual counter-narrative so people can compare them side by side.

The music industry certainly lobbies for things that aren’t good for the public. But at least you know the RIAA is a lobby. And the BPI. They’re not boy scouts, but they’re forthright about what they’re doing.

Google is not forthright. They give money to the EFF, Public Knowledge, and to all these other groups, but they’re not very honest about what they’re doing. You can say term extension is a consumer issue, but the way Public Knowledge talks, you’d think cable TV for less money is a constitutional right. It’s not. You have no right to watch World Cup soccer. That’s crazy.

Some of this is really the fault of journalists. Public Knowledge declares its income on its website but journalists don’t pick up on it. So it is described as a “consumer rights group” when “consumer rights group funded by technology companies” or “group that lobbies for consumer rights and technology companies” would be more accurate.

Now if you look at the academics – I write about Professor Lessig but it could be William Patry or Tim Wu – a lot of their work is really shoddy. Wu writes about the movie business, but he doesn’t understand how films take in money. Lessig also gets a lot of details wrong. Now, either he’s not smart enough to get these details right, or he’s being deceptive. I would say he’s smart enough.

He writes about how Disney couldn’t make its classic animated movies today because of copyright law. But there’s no evidence for that. Walt Disney licensed stories to make films. He licensed the story for Bambi, he licensed the story for Dumbo, he licensed the story for 101 Dalmatians, and many others. That process is exactly the same as it is today. The Brothers Grimm stories would have been in the public domain even under today’s copyright term – which I think is way too long, by the way.

Lessig also says how copyright has expanded to cover characters. But that came from judicial decisions, not statute. That wasn’t the result of lobbying. You can say the courts interpreted it wrongly – but it’s nonsense to say it was lobbying. It’s unbelievable to me he’s considered a serious academic.

Q: Sousa is another example Lessig likes to use. Sousa complained about “infernal machines”, phonographs, and refused to be recorded. But he changed his mind, which Lessig never tells us …

Levine: Sousa was the Metallica of his day. His songs were being recorded and he was not being compensated. He objected. Like Metallica he phrased his objection in a very poor way – but musicians aren’t lawyers. Sousa said, “I don’t like the technology, I prefer people to sing songs from songbooks.” He was getting paid for songbooks, of course. But once Sousa was being paid for his records, you can see his attitude turn around.

Lessig, who is supposed to be such a scholar, gets it wrong – it’s appalling. Harvard and Stanford should be ashamed of themselves. It’s not serious academic work. It’s not worthy of a Harvard professor.

Americans also tend to assume the whole world is under United States law. But you’re talking about a specific Anglo American tradition. I grew up under it and I like it. But there are other countries in the world, the French in particular, who have a very different tradition of copyright. That includes strong moral rights for authors.

Lessig will write these books of his about copyright but never once mention these other traditions – I think that’s wrong. You can make a case that in the continental tradition, you have a right NOT to be remixed. Should that be there? I don’t think so, personally. But the idea you don’t mention moral rights in a book about copyright is dishonest.

Q: But the academics don’t need corporate sponsorship to say what they say. Wouldn’t they say it anyway? They’re fully signed up to the belief system.

Levine: I think Lessig is sincere about his desire to make the world a better place, and he wants to reduce corruption in Washington. But he has made some compromises that make it hard to take him seriously. He’s not the guy to do that.

I will say he was tremendously courteous in answering some aggressive questions. I don’t have a bad thing to say about him personally.

Q: You spend a chapter on blanket licenses in the book. And the reaction from creative industry people who have liked the book has been mostly critical of this idea. Doesn’t a blanket jar with your advocacy of markets?

Levine: The ideal is we have a market. People will pay for Spotify or downloads or new services, but if we can’t get that a blanket is an option.

When you signed up to an ISP you could choose if you wanted the music add-on. The government creates a situation where you can get such a deal. With your ISP you’d tick a box: “Yes, I want $5 for all the music I want.” If you don’t tick a box, then you’ll get check at random and there’ll be a substantial penalty. Not $500,000, but say $500 – like a speeding ticket.

Q: I really liked this idea for a while, but eventually I couldn’t get around some problems. It’s a tax that penalises people who doesn’t do online music, and it undersells the value of the music. And everyone else will want a piece.

It also sets the limit for the amount of money the market is worth.

Levine: I wouldn’t call it a tax: it’s not a tax. A tax is imposed. It’s a levy. When Jim Griffin launched his Choruss plan everyone called it a music tax and said you have to pay for music. Well, guess what – you already have to pay for music. Jim wasn’t trying to get people to pay for something they’re not doing. If you want to listen to music in a restaurant, you’re already paying. You always have to pay for music. It’s just that it is a levy, it is part of the bill, and the collecting society makes it easy.

Levine: I wouldn’t call it a tax: it’s not a tax. A tax is imposed. It’s a levy. When Jim Griffin launched his Choruss plan everyone called it a music tax and said you have to pay for music. Well, guess what – you already have to pay for music. Jim wasn’t trying to get people to pay for something they’re not doing. If you want to listen to music in a restaurant, you’re already paying. You always have to pay for music. It’s just that it is a levy, it is part of the bill, and the collecting society makes it easy.

‘A blanket licence is terrible for everybody compared to an ideal world. But you have to compare it to what’s happening now’

You’d have to do it so it added up. By mobile device not by ISP for example. So you could get a little more that way. You could create add-ons. You could offer people the right to upload their own stuff. Or play it in their living room stereo as well as on their computer. I don’t think £7 or £8 a month for all-you-can-eat music is so terrible.

Q: Not exactly a market solution is it?

Levine: A blanket licence is terrible for everybody compared to an ideal world. But you have to compare it to what’s happening now.

When YouTube goes to the culture industry and says, “We have all your video: do you want to get something, or nothing?”, are they not in effect setting a price? Some of this is already happening. It’s really bad, but it’s happening. You can’t turn the clock back. It might be an idea to think about it before a blanket is imposed.

To fix things, you need to do two things. You need to make illegal commerce harder, but your success is going to be based on legal commerce: don’t choose one or the other. You need to make Rapidshare a pain in the ass to get to and inconvenient, and also make something like UltraViolet as easy to use as possible. ®

Robert Levine’s Free Ride blog is here.

What do you do when a global corporation pays out millions to the watchdogs that we expect to protect us against it? It’s a fair question to ask in light of the Chocolate Factory’s legal settlement this week, over Google Buzz. The privacy class action suit has landed a windfall of millions of dollars to “privacy” groups – but not a cent to ordinary citizens, users of Google Gmail’s service whose privacy was compromised.

The Washington Legal Foundation’s chairman Dan Popeo, a pro-business organisation, is one critic who has raised an eyebrow.

Google offered $8.5m to settle several class action suits last September. The Court made a preliminary settlement late last year and decided on the dispersal of money in February. The lawyers took a cut of just over $2m, leaving $6m to be spread around some 77 organisations. Only 12 made the cut.

Amongst the groups that failed to squeeze its snouts into the trough was EPIC, which complained that the selection process favored “organizations that are currently paid by [Defendant] to lobby for or to consult for the company”.

To say the least, that’s an interesting description of the ACLU and the Electronic Frontier Foundation, which both hit the jackpot, receiving $1m each.

Judge James Ware approved the payouts,and then he included EPIC and one other recipient too.

“Why were these lucky 14 settlement fund recipients chosen and not others?,” asks Popeo. “What criteria were used to choose them? How will the $6.1 million provide an ‘indirect benefit’ (as the judge put it) to the faceless, nameless plaintiffs in the suit?”

Popeo also notices another curiosity. In addition to EPIC’s ticket on the gravy train, Judge Ware managed to find $500,000 for the Markkula Center for Applied Ethics at Santa Clara University. Why that particular faculty? It’s anyone’s guess, but quite coincidentally, the Honorable Judge Ware is a lecturer at Santa Clara University.

It’s a strange arrangement that sees purportedly independent “citizens groups” come to become recipients of cash from the companies they claim to fight, on citizens’ behalf. A cynic would suggest that they might forget to bite the hand that feeds them.

And $1m is not a trivial amount to the EFF: in 2008/09 the organisation saw gross income of $3.42m, and was left with a shortfall of over $400,000. Google’s cash from this one settlement alone exceeds both individual membership fees, and individual contributions – both under $1m. You could almost describe relying on Google is a kind of business model.

(Former EFF board chairman Brad Templeton is an old pal of fellow Burner Larry Page, as he explained in an unusually generous critique of GMail.]

It’s all quite cosy. Perhaps the groups could nominate Google for one of their many awards: we suggest “Most Munificent Litigant”.

Bootnote

Europeans shouldn’t be so smug. The superstate hands out millions of Euros to environmental groups to lobby the EU. Greenpeace, to its credit, refuses to accept the cash.

Read more at The Register.

Berne is administered by the UN quango World Intellectual Property Organization (WIPO) and changes are made only every few generations – it was last amended in 1979. Undaunted, a committee of “wise men” (actually, just three people) reporting to the EU’s Information Society initiative i2010 Digital Libraries Initiative has recommended “some form of registration as a precondition for a full exercise of rights” [Our emphasis].

The problem? Berne establishes most parts of copyright as an automatic, global right. Unravelling this would undermine the entire treaty – which isn’t likely.

The report by the “Comité des Sages” was welcomed by Neelie Kroes, European Commission Vice-President for the Digital Agenda. The Sages comprising the “high level reflection group” were Maurice Lévy, chairman and CEO of advertising and PR company Publicis, German libraricrat Elisabeth Niggemann, and Belgian playwright Jacques De Decker.

The trio urged states to implement new legislation on collective licensing, obliging commercial copyright holders to donate work which would be made available for free. Rights-holders of in-copyright works would be remunerated “fairly” and would retain the ability to opt-out of the EU-wide database.

While the report encourages “public-private” partnerships there’s little incentive for rights-holders to stump up for the expensive process of digitisation – deals would be non-exclusive and “preferential” terms would expire after seven years. Copies of everything would have to be lodged with Europeana, the EU digital library project estimated to cost €400m when it’s complete.

The strangest recommendations in the Sages’ report are reserved for orphan works. They declare that:

“An orphan work recognised as such in one Member State on the basis of a search in the country of origin, should be recognised as orphan across the EU.” Similarly, “an orphan work that is made accessible online in one Member State should also be made accessible online in all Member States or even globally.”

So expect to see Albania suddenly lose all the metadata it has ever possessed on Norman Wisdom films*.

You can find more high-level reflections from the sages here and download the PDF from here.

Bootnote

* This is, of course, a joke. Albania is not yet an EU member…