[Ecommerce] The Problem with Webcasting by Andy Oram

[Manon Ress]

"Andy Oram examines the new concept of a "webcaster's right" that
major Web portals are trying to introduce through a World Intellectual
Property Organization treaty. The treaty would allow Web sites to
control the dissemination of content they put up. Using the failed
database protection laws as an example, and in the context of the
carrier's desire to create a tiered Internet, Andy analyzes this new
threat to the public domain" at http://yro.slashdot.org/article.pl?
sid=06/01/14/0721223

The Problem with Webcasting
A cast that can be imprisoning
by Andy Oram
01/13/2006
http://www.oreillynet.com/pub/a/etel/2006/01/13/the-problem-with-
webcasting.html

There's a new restriction on content waiting in the wings--a
"webcaster's right" that allows websites to control the dissemination
of content they put up. With this new privilege, they'll be able to
prevent retransmission even if the copyright on that content is owned
by somebody else--even, in fact, if that content was in the public
domain.

What is webcasting, and what will be the effects of this restriction?
Nobody knows--except, one supposes, the large web portals pursuing
the webcaster's right. I will try to ferret out what they want to do
in the course of this article.

First Came the Broadcaster's Right
Unbeknownst to most Americans, in many European countries, TV and
radio stations for some time had a "right" to control dissemination
of their broadcasts. A U.S. delegation to the World Intellectual
Property Organization, (peopled by members of the Copyright Office
and the U.S. Patent and Trademark Office), wants to bring these
restrictions home.

The harm this could do to public discourse hit me just recently when
I attended a forum on wiretapping, where several TV clips of George
W. Bush's speeches were aired. The value of seeing these excerpts was
incalculable. But if we had to adhere to the broadcasters' treaty,
showing them would have been illegal. By copyright law, showing them
in a non-profit educational setting was probably fair use--but it's
not clear how any concept of fair use would apply to a broadcasters'
treaty.

Because it's often impossible to contact the original copyright
holder, the right to retransmit broadcasts is essential to public
discourse. Copyright is motivated by the laudable goal of encouraging
authors' creativity and productivity--but what value do broadcasters
add? There's precious little creativity involved in sending out a
broadcast. Nevertheless, broadcasters are claiming an extra layer of
rights--which adds an extra barrier to reuse.

It's important to note that this legal maneuvering goes on in the
context of publishers' growing technical restrictions on
dissemination through digital rights management, and their attempts
to plug the "analog hole" so that no rebroadcasts could take place
anyway. But now we face the prospects of new barriers that have
existed nowhere before now.

Then Came the Webcaster's Right
The U.S. WIPO delegation is also pushing for an extension of the
broadcasters' control to the Web. The European broadcast laws don't
cover the Web (although a European Union representative recently
endorsed the U.S. proposal), so this is a new threat to the public
domain.

What would a webcaster's right mean? It would mean you couldn't
retransmit content put up by someone else on the Web without
permission. The proposal tries to indicate that the restriction
covers only images and sound, but it's not clear that a line can be
drawn between such content and other things, including text. At any
rate, the idea of extending the broadcaster's right to the Web is
bizarre and fundamentally out of sync with how the Web works. The
whole basis of the Web is making links; people don't normally copy
and retransmit material.

I take it back. Copying and retransmission happens on the Web all the
time. It's call caching, and it's crucial to the efficient operation
of the Web. Even if the webcasting treaty leaves a loophole to allow
caching, the treaty may hamper another promising way of reducing the
load on servers: chained downloads that piggyback on intermediate
nodes, the basis for useful protocols such as BitTorrent.

The U.S. delegation is pushing for this strange new right under the
catch-all rubric of "harmonizing" the Web with broadcasting, and, of
course, that shibboleth of regulators, "technological neutrality."
But because equating Web distribution with broadcasting is absurd on
the face of it, one has to wonder what is really on the minds of the
large portals who put so much energy into forcing this radical change
on the public.

The light went off in my head after hearing about plans by telephone
companies to reserve parts of their internet bandwidth for premium
content, rather like cable TV. This has been widely reported, and I
blogged about it last December in an article titled "Can We Still Say
that Nobody Owns the Internet?"

Since then, on January 6, the Wall Street Journal reported that the
carriers are trying to enter into special deals with major sites such
as Google to offer those sites faster downloads for a price--and the
websites are responding positively. Depending on your point of view,
this is the natural next step in what you could either regard as:

A fair way to fund expensive network upgrades (except that phone
companies have already won major pricing concessions from regulators,
supposedly to fund those upgrades).
Or, an unprecedented coup by those who own the pipes to control what
flows over those pipes.
So the telephone companies, which have also become major internet
providers, think they can intensify the commercial use of their
internet connections by providing their own content (or content
licensed from partners) at higher cost. Would it be too far-fetched
to think that web portals have a similar idea? If they had their own
premium content, they could essentially become like cable TV
satellite radio companies. On January 9, the Wall Street Journal
reported the next brick laid on the edifice, as Google announced it
would offer TV shows and videos for a fee (restricted, to boot, by a
DRM scheme).

I don't mind premium content at special prices (hey, O'Reilly Media
itself started a subscription service called Safari), but I don't see
why a special webcaster's right is needed to provide it.

Somebody is whispering poisonous thoughts in the ears of the portal
owners. Suppose the next Wizard of Oz type of blockbuster goes over
your wires ... You could get out of the nerve-wracking business of
constant innovation and start to make an easy living off of cash
cows ... Just imagine millions of captive viewers coming back to view
your ads month after month. Expect to see a further proliferation of
DRM systems and the erosion of fair use in the near future.

I believe that the resurgence of internet entrepreneurialism--the
wave of creative guys in lofts being bought out by the likes of
Google, Yahoo, and America Online--shows that innovation has not run
its course yet, and that we should keep competition vibrant. That
means no new, artificial monopolies on content.

The publishers who fund Safari are creating a successful business
with a modest investment and a legal foundation in standard
copyright. Other writers and artists may try to create their own
online businesses with even smaller investments, and may therefore
depend more on portals or "webcasters" for dissemination. In the
balance of control between artists and portals, I vote for the
current legal system that favors artists.

I recently sent the U.S. delegates to WIPO the following document in
a bid to ward off the webcaster's right--through the mechanism of
throwing the matter before Congress.

Submission to U.S. WIPO Delegation Concerning Webcast Rights

This paper calls for Congress to take up the question of broadcast
ownership rights on the internet, before they are proposed to the
World Intellectual Property Organization by a United States delegation.

The proposed extension of broadcast ownership to the internet
represent a new feature in the dissemination of information, and a
potentially disruptive change. Such a far-reaching grant of ownership
should be subjected to particular scrutiny and diligently checked for
ripple effects, because it consists of a sui generis right that can
profoundly change the creation and distribution of content.
Therefore, Congress should be the body in the U.S. to make the
decision whether to request such an ownership change.

To show the value of legislative deliberation, this paper will
examine the history of another recent, sui generis right: laws
restricting collections of information, also known as database
protection.

As with broadcasting and the internet, laws restricting collections
of information were proposed by large companies with a valuable
resource (CD-ROMs and other data listings used in many research
areas), and were accompanied by claims that the current legal
framework would eliminate the incentive to produce more such databases.

The first victory for collections of information was in a directive
discussed in the European Community in the early 1990s and formalized
in a March 11, 1996 directive. It was subsequently made law in a
dozen European countries.

The scope and power of collections-of-information restrictions grew
as the directive went through EC deliberations. (Nowadays, because
the public interest sector in Europe is more organized and can make
itself heard better within the EU, this directive might not have
passed at all.) The original proposal was not a sui generis right,
but a modest reinterpretation of unfair competition to cover
commercial reuse of collections of information.

But seeing an unobstructed road ahead of them, database manufacturers
managed to extend the collections-of-information concept to the point
where it gave them control over the reuse of facts in their
databases, which no other law or treaty had done. The new right made
it risky for users of databases to extract large amounts of
information from a database, which frequently has to be done to
generate statistics, check results reported in papers, and do other
forms of research.

Database manufacturers simultaneously pressed for collections-of-
information laws in the United States. During the 1990s and early
2000s, laws regarding collections of information were introduced four
or five times into Congress, and defeated every time. WIPO noted the
loss of support for database protection and refused to take up the
issue.

What happened to the momentum? Congress listened to both sides, and
realized that every ownership right in information represents a trade-
off. Restricting access and reuse of information must be considered
in light of the potential brake it puts on the research required to
produce the next information breakthrough.

This restriction could be justified only by evidence that there is
widespread copying, and that it is inadequately prevented by other
laws such as copyright and unfair competition. However, there is no
evidence that such widespread copying has taken place.

As reported by James Boyle, the European Commission recently
conducted a study and reported that the presence of collections-of-
information laws had no measurable impact on the production of
databases. So the economic argument for collections-of-information
laws is weak. And this result is easily to explain, because the most
obvious kinds of copying (burning a CD-ROM, for instance) are
prohibited by copyright law.

Thus we can draw our first lesson from the collections-of-information
history: when a new and far-reaching change concerning information
rights is considered by a national legislative body, this puts the
change through valuable scrutiny and allows, more than in non-elected
international bodies, the true interests of both information
producers and the general public to be heard. The national body
provides more transparency in deliberations; more time and
opportunity for key players such as non-governmental organizations
and small, competitive producers to express their points of view; and
more of a sense of responsibility toward constituents.

Another valuable lesson can be gleaned from the history of
collections-of-information laws: the danger of basing a legal
framework on the exigencies of a particular industry at a particular
time, especially in a fast-changing technological environment.

Essentially, collections-of-information laws were conceived at a time
when most databases were distributed by CD-ROM. A few services such
as Lexis were online, but they had very restricted audiences. The
model for a collection of information was a fixed set of data, sold
as a tangible item.

By the time the first European countries passed their collections-of-
information laws, it was becoming apparent that this model was
obsolete. Very few people get information nowadays by popping a CD-
ROM into a computer; instead, they visit a website and enter a search
term.

There are several important impacts of this change on collections-of-
information laws:

Copying becomes more difficult (rendering the laws even less relevant).
In regard to determining how much copying is too much, the new
structure of information makes it hard to determine how much of the
total collection was copied.
The frequent updating of information renders copies less valuable,
reducing the incentive for someone to profit by making extensive copies.
Expiration times, which were designed to protect the public by
placing deadlines on the restrictions imposed by database
manufacturers, become moot because the manufacturers keep updating
the data.
Thus, technological and social change calls into question the value
and relevance of collections-of-information laws.

We can apply the same criteria to broadcasting laws on the internet.
These are narrowly tailored to particular uses of information made by
large news and portal websites, just as the collections-of-
information laws were tailored to the distribution of data on CD-ROM.

But what new technologies will come along after the Web? Could
broadcast laws hamper their development and adoption? Who will be the
information providers and distributors in the next generation of new
media, and will they need or benefit from broadcast protection? How
will the locking up of content in a broadcast treaty affect the
dynamic and free-flowing innovation currently represented by weblogs,
wikis, podcasts, and other media yet to be invented?

And what about the assumptions behind the broadcast treaty? Is
putting up a web page comparable to broadcasting a program over
television or satellite? Few people redistribute web content;
instead, they make a link to it.

However, useful applications exist for reducing the strains on
servers by sending data hop by hop between user systems, piggy-
backing on intermediate nodes to distribute streams and large data
transfers. This is just one example of potential innovations that
might be squelched by overreaching laws on webcasting.

This issue calls for careful consideration and views from all sides.
Congress is the body most suited to undertake this examination in the
U.S..

For More Information
EFF material on webcasting and the broadcasting treaty in general

Article by James Love, director of Consumer Project on Technology, on
the webcast treaty: "A UN/WIPO Plan to Regulate Distribution of
Information on the Internet"

My article on collections of information: "The Sap and the Syrup of
the Information Age: Coping with Database Protection Laws"

Update on European database treaty by law professor James Boyle

Andy Oram is an editor for O'Reilly Media, specializing in Linux and
free software books, and a member of Computer Professionals for
Social Responsibility. His web site is www.praxagora.com/andyo.





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