One of the curiousities of intellectual battles is the ability of the intelligentsia of one school to retrench and come back, using the vocabulary popularized by another set entirely to argue the opposite point. (A curiousity because one would hope that the relatively clever would steer clear of rhetorical devices in favor of clarity and making real progress towards understanding).

Free-marketers in the nineteenth century, then known as "liberals," became popular with the working classes and the poor because of their support for the abolition of the Corn Laws and other benefits of free trade; economic interventionists tried to capitalize on this popularity by calling themselves "liberals," and today the original reference of the term is obscured, particularly in the United States.

Another more complicated example: The success of free marketers in demonstrating that competition and choice serves consumers; offering empirical support for the fundamental point that contracts are a basic building block of a prosperous economic order. Today advocates of regulation build on this legacy by borrowing the language of consumer choice to attack the ordinary contract.

The Wall Street Journal Europe explores a variation on this argument concerning the iPhone. Kyle Wingfield notes, "Yes, consumers benefit from economic efficiencies. But it cannot be said that economic efficiencies are gained simply by creating circumstances that are attractive to consumers." And goes on to make some interesting observations about the leftist allegiance to labor, rather in tension with their stance on consumers.

Continue reading The iPhone and Consumers--Lessons from Europe . . .

posted by Solveig Singleton @ 10:46 AM | Prices, Terms, and Licensing , Spectrum & Wireless

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This week, we released "Jargonomics: Intellectual Property Prices and Marginal Cost," Authored by Solveig Singleton. The paper argues that marginal cost should not be a factor in pricing or the basis of IP policy. My release on the paper can be found here.

In the paper, Solveig offers four "lessons" for policymakers regarding marginal cost:

- Prices set above marginal cost are not a sign of undue market power or monopoly due to intellectual property or anything else.
- Prices above marginal costs bring new investment and new competitors into the market in question.
- Setting prices at marginal cost (for example, in the context of compulsory licensing of music or pharmaceuticals) does not amount to setting the "right" price; only a market can do that.
- Insisting on static inefficiency in the short run reduces investment and undermines dynamic efficiency in the long run.

The paper is much too nuanced to properly summarize here - it can be found on the PFF website.

posted by Amy Smorodin @ 10:30 AM | Economics, Game Theory & Public Choice , Markets: Business, Investment & Innovation , Prices, Terms, and Licensing

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Some of the most interesting challenges for digital-age copyright policy arise from the growing popularity of user-generated content (UGC). UGC offers exciting new possibilities for people to create or interact with their favorite works, but it raises thorny problems that range from its potential to facilitate infringement to questions about reconciling the creative potential of UGC with other creators’ interests in the artistic integrity of their works.

Fortunately, one advantage of letting enforceable property rights generate markets for socially valuable goods and services is that markets require participants to find “win-win” solutions: In a market, a given transaction should occur only if all parties to it are better off as a result. Markets thus create potent incentives to reconcile divergent interests.

The solution-generating power of markets was evident today when a diverse coalition of technology and media companies released Copyright Principles for UGC Services. The Principles attempt to define a win-win-win solution: A set of ground rules that will promote respect for copyrights, the production of UGC, and the development of innovative platforms for promoting and distributing it. Key provisions of the Principles include the following:

1) UGC sites should use “highly effective” filtering technologies, or human review, to identify and remove infringing content before it is uploaded and enhance or update those technologies as significant advances become commercially available.

2) Copyright holders and UGC sites should cooperate to ensure that filtering systems effectively balance legitimate interests in blocking infringing uploads, allowing original or authorized uploads, and accommodating fair use.

3) Copyright holders and UGC sites should develop procedures to promptly address conflicting claims of ownership, and user’s claims that filtered content was not infringing.

4) Copyright holders should neither file infringement claims against UGC sites that adhere in good faith to the Principles nor assert that adherence to the Principles disqualifies a UGC site from claiming the benefits of safe-harbor protections like those in the DMCA.

At their core, the Principles seek cooperative solutions to the possibilities and challenges posed by UGC. For that, they should be applauded. When property rights are unclear, or not respected, we often resort to non-market-based dispute-resolution mechanisms—like litigation. But litigation does not promote win-win outcomes and may leave all parties worse off. Companies like Disney, Microsoft, NBC-Universal, MySpace, Daily Motion, CBS, Viacom, and Fox deserve great credit for this effort to identify solutions that balance their interests with those of creative consumers. Bravo.

posted by Thomas Sydnor @ 5:46 PM | DMCA , Enforcement & Remedies , Internet: P2P, Search Engines... , Markets: Business, Investment & Innovation , Prices, Terms, and Licensing , Standards

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I earlier posted our amicus brief in the Cablevision case, along with most of the others, here.

The brief of Americans for Tax Reform, affiliated with the Property Rights Alliance, is here in two parts:

Part I
Part II

Continue reading More Cablevision Briefs, and Further Thoughts . . .

posted by Solveig Singleton @ 8:47 AM | Enforcement & Remedies , Internet: P2P, Search Engines... , Markets: Business, Investment & Innovation , Prices, Terms, and Licensing

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An overwrought article by Danny Bradbury, The Guardian, July 19, 2007, entitled "Web Radio Faces It's Death Knell,".

A more upbeat article on progress in the settlement talks between webcasters and copyright groups.

And another article on the settlement talks.

And another article, which suggests that webcasters could move to Canada.

And some older coverage, which includes links to the recent court decisions.

Public Broadcasting Report has some more detailed coverage. The July 20, 2007 article, "NPR Secures Three-Month Reprieve from Higher Webcasting Rates," observes that though no firm agreement had been reached:

DiMA is "prepared to accept" SoundExchange's offer to cap minimum fees per channel at $50,000, Executive Director Jonathan Potter said in a letter late Friday to Simson. Potter provided details of SoundExchange's requirement that webcasters "work to stop" stream-ripping. DiMA will "research, identify, review and evaluate the prevalence" of ripping, with an eye toward "limiting and/or eliminating" the activity, which is "disfavored by webcasters and labels alike," he said. DiMA has previously called stream-ripping a problem whose existence has been posed based only on "theoretical evidence," not case studies.

Streamripping consists of recording the mp3 stream sent out by Internet radio to one's hard drive to build up a library. More on streamripping here and here. The anti-DRM people are upset about the proposed deal's requiring measures to be taken against this, predictably. Although I suppose if enough streams get libraried in enough individual libraries, that's the death of Net Radio too.

And coverage from the Boston Globe.

It must be difficult to write these articles on deadline. But I do find myself wanting to know a good bit more about the context in which the rates decision was made before giving way and joining in the cries of "woe, woe, woe, woebegone woeful woe!" (classical scholars, what play is that from?) in which the struggle of some smaller stations becomes the Death of Internet Radio write large.

Continue reading Webcaster Headline Roundup . . .

posted by Solveig Singleton @ 7:56 AM | Internet: P2P, Search Engines... , Media: Video, Music... , Prices, Terms, and Licensing

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James Gattusso comments as politicians bash the iPhone contract.

Next they'll be subsidizing it.

posted by Solveig Singleton @ 8:25 AM | Markets: Business, Investment & Innovation , Prices, Terms, and Licensing

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Here are some of the filings in what is being commonly referred to as the "Cablevision case," about to be argued before the Second Circuit.

PFF brief

ASCAP/BMI brief

EFF brief

Law profs brief

Tim Wu brief

Appellant's brief

Cablevision MSF

Fox has also filed a brief, which I am having trouble uploading; I believe that the property rights alliance also filed and I do not have that one. All for now.

posted by Solveig Singleton @ 7:47 AM | Enforcement & Remedies , Media: Video, Music... , Prices, Terms, and Licensing

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DRMWatch reports on the efforts to develop standards for licensing on the Internet, including the hesitation of search engines to participate:

ACAP sounds like a great idea: instead of the search engines indexing whatever they want and publishers responding through litigation -- as has certainly been the case thus far -- why not agree on a machine-readable language for expressing the rights that publishers want search engines to have.

Such rights would include the right to crawl (index) the content, to display it in various forms in search results, to attribute its source appropriately (a la Creative Commons), and even to implement certain access models such as "first click free."

posted by Solveig Singleton @ 9:45 AM | Internet: P2P, Search Engines... , Prices, Terms, and Licensing , Standards

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The Copyright Office's current review of statutory licensing under section 115 is spurring much needed review of music licensing and discussion, including legislation. TechDaily has an article by Andrew Noyes, " Antiquated Rule On Music Royalties Defies Reform" which observes:

Register of Copyrights Marybeth Peters said she believes new legislation is "imminent." . . .
In the meantime, the office decided to "turn itself toward focusing on the regulatory process to see if there's anything we can do that would address what reproductions are included" under existing law, Peters said.
One of the key questions debated was whether certain downloads, which are time-limited or use-limited, fit within the scope of Section 115. Stakeholders also shared thoughts on how streaming media and internal server copies fit into the equation. Speakers also discussed how to make notice requirements covered under Section 115 more functional.

Difficulties in this area stem from the fragmentation of music copyrights into performance, distribution, reproduction, and sound recordings rights (etc) and the fact that these rights reside in multiple owners. Add to this the practice of compulsory licensing, and one has a real mess particularly affecting new Internet distribution technologies.

posted by Solveig Singleton @ 10:37 AM | Internet: P2P, Search Engines... , Markets: Business, Investment & Innovation , Prices, Terms, and Licensing

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From Tony Healy, a link to an interesting post on Slashdot:

The FSF should realize by now their influence is waning. Look at the plethora of alternative licenses. Now they're really hamstringing themselves with Version 3, taking the license further and further from where industry developers are heading... Do (developers) care when Eben Moglen says "the time is rapidly approaching when the GPL is capable of leveling the monopolist to the ground?" Developers demand more freedom, not less. They want clear, practical leadership, not bombast.

http://blog.wired.com/monkeybites/2007/06/whurley_the_gpl.html

http://talk.bmc.com/blogs/blog-whurley/whurley/the-death-of-a-software-license

posted by Solveig Singleton @ 10:29 PM | Prices, Terms, and Licensing , Software

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posted by Amy Smorodin @ 9:24 AM | Academia , Prices, Terms, and Licensing , Universities

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posted by Solveig Singleton @ 9:30 AM | Internet: P2P, Search Engines... , Legislation and Legislators , Markets: Business, Investment & Innovation , Prices, Terms, and Licensing , Radio

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posted by Solveig Singleton @ 9:14 AM | Prices, Terms, and Licensing , Software

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posted by Solveig Singleton @ 8:42 AM | Media: Video, Music... , Prices, Terms, and Licensing , Spectrum & Wireless

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posted by James DeLong @ 7:12 AM | Free Culture Movement , Markets: Business, Investment & Innovation , Prices, Terms, and Licensing

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posted by Solveig Singleton @ 3:46 PM | Markets: Business, Investment & Innovation , Media: Video, Music... , Prices, Terms, and Licensing

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posted by Patrick Ross @ 9:39 AM | Markets: Business, Investment & Innovation , Prices, Terms, and Licensing

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posted by Noel Le @ 4:12 PM | DRM & Watermarks, etc. , Prices, Terms, and Licensing , Standards

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posted by Solveig Singleton @ 1:45 PM | DMCA , DRM & Watermarks, etc. , Free Culture Movement , Games , Prices, Terms, and Licensing , Software

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posted by Solveig Singleton @ 11:43 AM | International , Patents , Pharma , Prices, Terms, and Licensing

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posted by Patrick Ross @ 4:22 PM | DRM & Watermarks, etc. , Free Culture Movement , Internet: P2P, Search Engines... , Markets: Business, Investment & Innovation , Media: Video, Music... , Prices, Terms, and Licensing

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posted by Patrick Ross @ 9:45 AM | Markets: Business, Investment & Innovation , Prices, Terms, and Licensing

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posted by Solveig Singleton @ 8:21 AM | Big Tent , Biotech , Patents , Pharma , Prices, Terms, and Licensing , Software

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posted by Patrick Ross @ 7:04 PM | Free Culture Movement , Markets: Business, Investment & Innovation , Prices, Terms, and Licensing

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posted by Solveig Singleton @ 7:40 AM | Patents , Pharma , Prices, Terms, and Licensing , Software

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posted by Solveig Singleton @ 11:18 AM | International , Patents , Pharma , Prices, Terms, and Licensing

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posted by James DeLong @ 10:02 AM | Prices, Terms, and Licensing

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posted by Solveig Singleton @ 4:22 PM | Internet: P2P, Search Engines... , Prices, Terms, and Licensing

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