'Darknet' endnotes

Following are chapter endnotes, or footnotes, for Darknet. The endnotes are also rich with source materials, including links, where available:

Chapter 1: The Personal Media Revolution

1. Harry Knowles, "Raiders of the Lost Ark Shot-for-Shot Teenage
Remake Review!!!," Ain't It Cool News (May 31, 2003). Online at
http://www.aintitcool.com/display.cgi?id=15348

2. Jim Windolf, "Raiders of the Lost Backyard," Vanity Fair (March
2004).

3. Chris Strompolos, interview with the author (November 17, 2003).

4. Greg Beato, "After Napster," Soundbitten (December 7, 2000).
Online at http://www.soundbitten.com/aftnap.html

5. "Amateur" is no pejorative. Jay Rosen reminds us that the root of
the word "amateur" is "lover." Whereas media companies create material for
profit, amateurs do it out of passion.

6. Marc Canter, interview with the author (February 25, 2004). Canter
made similar comments in the "We Media" report discussed in chapter 4. It's
important to keep in mind that forms of personal media have been around for centuries. Books, letters, parchments, vintage records on Victrola players,
Brownie cameras, 16mm movie cameras, boom boxes‹the analog age gave birth to personal media. But the digital age is empowering talented individuals who feel shut out of the mass media machine to express themselves and share their works as never before.

7. Shigeru Miyagawa, "Personal Media and the Human Community,"
Technos Quarterly 11, No. 2 (2002). Online at http://www.technos.net/tq_11/2miyagawa.htm

8. Bruno Levy, interview with the author (December 11, 2003).

9. Andrew Potter, "Will It Be Free, or Feudal?," National Post (May
15, 2004).

10. Sheldon Brown, interview with the author (April 28, 2003).

11. Henry Jenkins, interview with the author (April 29, 2003).

12. Clay Shirky, "RIP the Consumer, 19001999," Shirky.com (Spring
2000). Online at l.shirky.com/writings/consumer.html
He also expanded on the theme in another essay, "Weblogs and the
Mass Amateurization of Publishing" (July 2003). Online at
http://shirky.com/writings/weblogs_publishing.html

2: Now Playing: Hollywood vs. the Digital Freedom Fighters

1. The Universal representative, Jerry Pierce, said he did not recall
such a proposal, saying, "There were some wacky things that came in and came out." Interview with the author (March 25, 2004). Three other participants who were there did recall such a proposal. The incident has not been previously reported.

2. James M. Burger, interviews with the author (October 15, 2002,
July 2, 2003, and April 19, 2004).

3. Adrian Alperovich, interview with the author (May 28, 2003). See
full interview on Darknet.com. To be fair, the region coding system also
protects the revenues of local theater owners in foreign countries.

4. For the complete transcript of the author's correspondence with
>NIL: see Darknet.com.

5. Stephen Balogh, interviews with the author (September 26, 2002,
and April 9, 2004).

6. Disclosure: I worked for Microsoft for nineteen months in
1997-1998 as an editor for its Sidewalk city guide.

7. Mary Hodder weblog at napsterization.org/stories/

8. The full text of Carly Fiorina's speech is available at the HP
site http://www.hp.com/hpinfo/execteam/speeches/fiorina/ces04.html

9. Eric Eldred became the plaintiff in Eldred v. Ashcroft. The
complainants challenged Congress's passage of a twenty-year copyright
extension in 1998 because they believe it robs the American public of the
rich and diverse public domain guaranteed by the Constitution. The Supreme
Court ruled against Eldred in January 2003.

10. Donald S. Whiteside, interview with the author (November 13,
2002).

11. Politech mailing list, "News Corp's Peter Chernin: ŒThe Problem
with Stealing'" (November 22, 2002). Online at
http://www.politechbot.com/p-04181.html

12. Figures from the Center for Responsive Politics,
http://www.opensecrets.org

13. The original movie rating system was G, M (for Mature), R, and X.
It has been revised several times since it was created in November 1968.

14. The full text of Valenti's speech is online at the MPAA site
http://www.mpaa.org/jack/2003/2003_02_24.htm

15. Jack Valenti, interview with the author (November 14, 2003). For
a full transcript, see Darknet.com.

16. Jack Valenti, "Thoughts on the Digital Future of Movies: The
Threat of Piracy, the Hope of Redemption," presented to the Permanent
Subcommittee on Investigations, U.S. Senate Committee on Governmental
Affairs (September 30, 2003).

17. The public domain is often defined as the state that materials
fall into once their copyrights expire, but others say the public domain is
much broader than that. The public domain includes not only works that have
been placed there but also such things as the right to listen, to share, and
to sell or give away used books, records, and other media. In this view,
everything starts out being in the public domain, and the only things not in
it are materials covered under Section 106 of the Copyright Act, which gives
the copyright owner rights for limited times, subject to Sections 107 to
122.

18. Adam D. Thierer and Wayne Crews, Copy Fights: The Future of
Intellectual Property in the Information Age (Washington, D.C.: Cato
Institute, 2002), p. xxvi.

19. As the Los Angeles Times reported, "Those who favor expirations
for copyright point to what happened with Frances Hodgson Burnett's The Secret Garden, the ageless tale of a boy and girl spiritually renewed after
discovering a hidden garden on a Yorkshire estate. First published in 1911,
the work entered the public domain in 1986. There are now at least 12 print
versions of the book as well as two online versions. There has been a TV
adaptation, a musical, a big-budget Warner Bros. movie, a cookbook. No one
owns The Secret Garden anymore, consequently everyone owns it." David
Streitfeld, "The Cultural Anarchist vs. the Hollywood Police State," Los
Angeles Times (September 22, 2002). Online at http://tinyurl.com/2dmnr

20. Lawrence Lessig, interview with the author (February 11, 2003).
For a full transcript, see Darknet.com.

21. As the Economist magazine said in an editorial after the Eldred
ruling, "Copyright was originally the grant of a temporary
government-supported monopoly on copying a work. It has never been a
property right. Its sole purpose was to encourage the circulation of ideas
by giving creators and publishers a short-term incentive to disseminate
their work." Editorial, "Copyrights: A Radical Rethink," Economist (January
23, 2003).

22. See Steven Levy's profile of Lessig, "Lawrence Lessig's Supreme
Showdown," Wired (October 2002). Online at
http://www.wired.com/wired/archive/10.10/lessig_pr.html

23. Lessig cited Dan Bricklin's writings for influencing his thinking
on this subject. Bricklin's weblog is at danbricklin.com/log/

24. Stewart Brand's full quote is: "Information wants to be
free because it is now so easy to copy and distribute casually and
information wants to be expensive because in an Information Age, nothing is
so valuable as the right information at the right time."

25. Robert S. Boynton, "The Tyranny of Copyright," New York Times
Magazine (January 25, 2004).

26. Because I'm concentrating on the current activities of the free
culture movement, I've left out some history from the main text. The free
culture movement owes a nod of recognition to a movement in the software
field with similar but not identical ideological tendencies. The open source
movement began in 1984 when Richard Stallman, a computer scientist at MIT, quit his job and set up the Free Software Foundation. Concerned that
proprietary software makers were locking down code and stunting progress, he became a leading advocate for the free distribution of software. Recipient
of a MacArthur genius grant, Stallman created the "copyleft" license that
stipulated a program could be copied and modified as long as the source code to all changes is made accessible to all users. A Finnish student named
Linus Torvalds used major contributions from the GNU Project in the early
1990s to create Linux, now installed on more than 20 million computers
worldwide. Stallman gives a history of Linux and the GNU Project at
http://www.gnu.org/gnu/linux-and-gnu.html

Over the years, Stallman has taken aim at copyright, software
vendors like Dave Winer, and book publishers like Tim O'Reilly. While
Stallman, whom I've met in person only briefly, doesn't demand that
everything should be free, some of his positions have caused considerable
discomfort among potential allies in the free culture movement.

27. Barlow's essay "The Economy of Ideas: Selling Wine without
Bottles on the Global Net" is online at EFF:
http://www.eff.org/~barlow/EconomyOfIdeas.html

He adapted the piece for an article in Wired magazine in 1994.

Barlow also wrote "A Declaration of the Independence in Cyberspace"
in 1996, warning government to back off from regulating this extraordinary
new space, although some of his ideas about the separation of the Internet
from the purported real world have been roundly criticized. The declaration
is online at http://www.eff.org/~barlow/Declaration-Final.html

28. Drew Clark and Bara Vaida, "Digital Divide," National Journal's
Technology Daily (September 6, 2002). Here is Valenti's complete quote:
"There is this new technology mind-set that there should be no regulation,
no rules of the road, and that this is Dodge City without a sheriff,"
Valenti said. The Internet is no different from cable, satellite, or United
Parcel Service, he said. "Every other delivery system operates under ground
rules, so why is the Internet to be exempt?"
The article is online at
http://notabug.com/2002/nationalJournalDigitalDivide.html

29. Barlow reminds us of the second half of Stewart Brand's famous
quote; see note 24.

30. See, for example, John Perry Barlow, "The Next Economy of Ideas,"
Wired (October 2000).

31. Doc Searls, "The Choice," Linux Journal News Notes (March 6,
2002). Online at http://www.ssc.com/pipermail/suitwatch/2002q1/000016.html

32. Pollack addressed PopTech on October 19, 2002.

33. Roundtable with John Perry Barlow and others, "Life, Liberty, and
. . . the Pursuit of Copyright?," Atlantic Monthly (September 17, 1998).
Online at http://www.theatlantic.com/unbound/forum/copyright/barlow2.htm

34. Jordan Pollack, "Should the Right to Own Property Be Preserved?,"
Edge.org (December 4, 2001). Online at
http://www.edge.org/documents/questions/q2001.3.html

35. Amy Harmon, "Studios Using Digital Armor to Fight Piracy," New
York Times (January 5, 2003).

36. Some have put the number of recorded songs at 2 million to 3
million, though that's clearly understated. ASCAP, for example, represents 4
million musical works. It's likely that less than 20 percent of music ever
recorded is currently available for purchasing or listening through legal
means.

37. Lawrence Lessig, Free Culture (New York: Penguin Press, 2004), p.
314.

38. Warren Lieberfarb, interview with the author (November 19 and 21,
2003).

39. Chris Murray, interview with the author (January 20, 2004).

40. Specifically, at the Digital Hollywood conference in Beverly
Hills, September 2325, 2002, Randall said: "Movie companies want to sell
our stuff to the public in multiple formats, but to a large extent our hands
are tied. Our contracts with Blockbuster, with our pay-TV provider, and with
others really limit what we can make available to consumers when they want
it, during the theatrical window. Many of these contracts are very
long-term."

41. Delivered in November 2002 at the Association for Computing
Machinery DRM conference. The "Darknet" paper can be downloaded at
http://crypto.stanford.edu/DRM2002/darknet5.doc

42. Microsoft denied my requests to interview any of the researchers,
saying the Darknet paper speaks for itself and its authors will not grant
interviews to anyone.

3: Inside the Movie Underground

1. I interviewed Bruce Forest on several occasions by phone and on
October 27, 2003, at his house.

2. Forest is the one who came up with this estimate, and even he
admits no one knows how many files are being traded in the Darknet. His
estimate came on one of the busiest movie weekends in history, in May 2002.

3. For a transcript of the exchange with beneaththecobweb, see
Darknet.com.

4. John G. Malcolm, interview with the author.

5. Benjamin S. Feingold and Adrian Alperovich, interviews with the
author (November 20, 2003). For a full transcript of Alperovich's comments
on the region coding system, see Darknet.com.

6. IDG News Service, "Three Minutes with Rob Glaser" (January 16,
2004). Online at http://www.pcworld.com/news/article/0,aid,114297,00.asp

4: When Personal and Mass Media Collide

1. Interviews at the Center for Digital Storytelling took place on
September 19, 2002.

2. The father of the digital storytelling movement was Dana Atchley,
a whimsical figure who adopted the alter ego Ace Space. Atchley created Road Show, a stage production crafted from sixty to seventy short video vignettes he pieced together from people's lives. At the end of the show's run, Atchley and Lambert cofounded the Storycenter. Atchley died in 2000. A
tribute is online at http://www.storycenter.org/dana.html

3. This particular iDay took place on February 8, 2003.

4. Moses Ma in his venture capital newsletter the Pitch: Insights and
Foresight into the Future of Technology (Spring 2004), p. 4.

5. To its credit, BMG dispatches digital evangelists to meet with any
executives, artists, or managers still wary of the Internet. Evelyn
Nussenbaum, "Technology and Show Business Kiss and Make Up," New York Times (April 26, 2004).

6. Section 1008 of the Copyright Act. Jessica Litman writes in her
law review article "War Stories," 20 Cardozo Arts & Entertainment Law
Journal 337 (2002): "Under the old way of thinking about things, copying
your CD and carrying the copy around with you to play in your car, in your
Walkman, or in your cassette deck at work is legal. Borrowing a music CD and making a copy on some other medium for your personal use is legal. Recording music from the radio; maxing different recorded tracks for a 'party tape,' and making a copy of one of your CDs for your next-door neighbor are,
similarly, all lawful acts. The copyright law says so: section 1008 of the
copyright statute provides that consumers may make non-commercial copies of recorded music without liability. Many people seem not to know this any
more."

7. Fritz Attaway, interview with the author (November 9, 2004).

8. It should be mentioned that obtaining permission to use
copyrighted material from individuals is almost always easier than obtaining
it from corporations. Eric Schulman, a Ph.D. astronomer and science writer,
tells me he has never had trouble getting permission to use photos that
individuals have taken and published on their Web sites (and he always
grants such requests as well). But when he writes to corporate entities, he
gets no response. For instance, he sent an e-mail to Atari requesting
permission to use a screenshot from the game Civilization to illustrate the
concept of civilization but never received a reply.

9. Philip Gaines, interview with the author (February 11, 2004).

10. Siva Vaidhyanathan, interview with the author (February 10,
2004).

11. Ernest Miller, interview with the author (February 23, 2004).

12. Saffo told the Washington Post: "The more people get on the Web,
the more the Web becomes the vaster wasteland that is the successor to the
vast wasteland of television. I don't care what the majority of people are
looking at, because the majority of people are really boring." Joel
Achenbach, "Search for Tomorrow," Washington Post (February 15, 2004).
Online at http://www.washingtonpost.com/wp-dyn/articles/A42885-2004Feb14_3.html

13. J.D. Lasica, "Citizens as budding reporters and editors,"
American Journalism Review (JulyAugust 1999).

14. The report is available on the Pew site
http://www.pewinternet.org/reports/
toc.asp?Report=113

15. The report summary is at http://www.ced.org/docs/summary/summary_dcc.pdf

The full report (101 pages, PDF) is at
http://www.ced.org/docs/report/report_dcc.pdf

16. James Wolcott, "The Laptop Brigade," Vanity Fair (April 2004), p.
144.

17. O'Reilly posted the comments on Dan Gillmor's eJournal (January
11, 2004).

18. Moses Ma, op cit.

19. Another site, FANlib: People Powered Entertainment, offers a
collaborative storytelling environment created by fans. Online at
http://www.fanlib.com/cms/

5: Code Warriors

1. I visited DivX headquarters on August 23, 2002, and followed up
with Jordan Greenhall by phone on January 28, 2004.

2. Paul Boutin wrote perhaps the best roundup of the sneakernet
phenomenon in his Wired magazine article "Burn, Baby, Burn" (December 2002), online at http://www.wired.com/wired/archive/10.12/view.html?pg=2

6: Cool Toys Hollywood Wants to Ban

1. David Clayton, interviews with the author (Spring 2004).

2. David and Diana Miller, interview with the author (November 17,
2002); follow-up (April 2004).

3. For details, see John Redford's "Doomed Engineers" essay (February
1996). Online at http://www.world.std.com/~jlr/doom/armstrng.htm

4. Hearing before the U.S. House Judiciary Committee, "Home
Recordings of Copyrighted Works" (April 12, 1982). Valenti's testimony is
online at http://cryptome.org/hrcw-hear.htm

5. Paul Sloan, "The Offer Hollywood Can't Refuse," Business 2.0 (May
2004), p. 91.

6. Kraus's Senate testimony is online at http://tinyurl.com/2hzwz

His testimony before the House Committee on Energy and Commerce
is online at http://tinyurl.com/3dosj

7. The Web site is at http://illegal-art.org/

8. Intel has devised a set of "first principles of content protection" for the digital world, which Stephen Balogh outlined this way:
• Intel understands and depends on intellectual property rights
and respects the rights of copyright holders.
• The company is focused on creating a legal, protected digital
environment. In so doing, Intel looks at content protection technology
chiefly as a deterrent, not as a perfect or complete solution to copyright
infringement.
• Content protection solutions need to be flexible and need to
enable new flexible media experiences that balance consumer expectations
with rights holders' interests. To that end, content protection should
enable consumer choice rather than dictate the availability of the digital
media experience. Comprehensive disclosure is also needed, chiefly through
product labeling, so that consumers know what they can and cannot do when
they buy digital media that use copy protected systems.
• Finally, markets‹not mandates‹are the best way to deliver
consumer satisfaction. The market will stimulate technological innovation,
bringing about compelling products and business models that meet consumers' demands and expectations.

9. Another feature, called "selectable output control," allows
copyright owners to turn off a viewer's set-top box's outputs under certain
circumstances, as when a copy protection scheme has been hacked. But
consumer groups and electronics companies say honest viewers shouldn't be
prevented from, say, playing HDTV movies or recording high-def television
just because someone somewhere else foiled the industry's copy control
system.

10. Balogh says, "The first step is forensics, which identifies who
you are. Then certification says, are you authorized to use this content in
the way you want? Certification is like a watermark in a piece of media that
says, ŒThis piece of media is copy x times and it's being played back, and
this content says it's a first-time movie release and it's supposed to be on
a DVD-ROM, but I see it's not a DVD-ROM, it's a recordable hard drive,' and
so the machine will say, ŒYou're not certified to play this movie, it's
supposed to be a hard piece of plastic that has a burned-in ID, etc.'"

11. Balogh expanded on renewability this way: "Through renewability,
the system can be replaced so you don't have to replace the entire machine
to get it back up to a secure environment. One of the ways you can do
renewability is with revocation. If somebody stole a key, you can revoke
that one key and its clones for that one device. Another form of
renewability is the wholesale replacement of a downloaded module. So if
you're in a cable set-top box, you want to replace the firmware running in
that, it's just a download because it upgrades whatever hole was left in the
implementation. That's renewability."

12. Steven Levy, "Info with a Ball and Chain," Newsweek (June 23,
2003), p. 59.

13. Victor Nemecheck, interview with the author (September 10, 2002).

14. Saul Hansell, "At Big Consumer Electronics Show, the Buzz Is All
about Connections," New York Times (January 13, 2003).

15. Richard F. Doherty, interview with the author (January 22, 2004).

16. For example, in July 1999 Panasonic launched the world's first
high-definition digital VCR. Chiefly intended for showrooms to introduce the
public to high-definition TV, the PV-HD1000 was an immediate hit with
buyers, who ponied up $1,000 for a device that let them record ultrasharp
images on digital tape. But Hollywood was nervous about people recording
programs in such a pristine format. "Executives at Panasonic told me they
were pressured by Hollywood attorneys to get them all off the market,"
Doherty says. "Many of the units were recovered and brought to a factory
where their 1394 ports [permitting high-speed digital connections] were cut
off, leaving them emasculated. That, to me, is extortion." A second person
with knowledge of the situation confirmed the account, adding that Panasonic
also built a set-top box for DirecTV with a 1394 port, or Firewire output,
that connected the box to Panasonic's tape deck so people could record
satellite programming in high definition, but Hollywood pressured them to
remove the high-speed digital port before the box shipped. Panasonic
declined comment.

By 2002, Mitsubishi and JVC started shipping similar digital VHS
decks to record high-def TV. But what viewers really wanted was a unit that
records high-definition TV onto a hard drive. Those units are just beginning
to come onto the market‹with airtight copy controls.

17. Von Lohmann tells me:
The lack of digital video outputs creates a number of problems for
consumers, both for recording and viewing:
1. For viewing‹lower-quality video on "fixed pixel" displays
(plasma, DLP, LCD‹anything that is a fixed pixel digital display), because
it requires an extra and unnecessary conversion from digital (source) to
analog (component outputs) back to digital (in the display). If the
technology allowed direct digital outputs to these fixed pixel displays, the
whole thing could be made cheaper and higher-quality (because you could
eliminate several unnecessary analog to digital conversions).
2. For recording‹no ability to record programs in high
definition. While it is theoretically possible to record from component
analog high-def outputs, there are currently no reasonably priced
technologies that do that‹it's much easier to simply move the signal as an
MPEG digital file rather than rendering it to high-def analog, then
redigitizing it in high def. You can pretty easily make lo-def recordings
from analog outputs (on a VCR, for example).

18. Von Lohmann, follow-up interview with the author (May 4, 2004).

19. Doherty says companies like Sixteen Nine Time are better able to
skirt Hollywood's pressure by not attending cross-industry standards
meetings. "These are highly charged meetings, and they are dominated more by lawyers than by the marketers or engineers who are trying to give consumers what they want," says Doherty, who has attended many such meetings. "Design decisions about consumer devices with digital capabilities are made on the basis of emotion rather than hard evidence. Very successful consumer electronics brands with track records of customer loyalty stretching back decades have found themselves incredibly frustrated by this pressure being put on them, sometimes with a legal threat, sometimes with a commercial threat."

20. Specifically, from Doherty's Sony PC-5 to a Sony PC-100 and a
Sony DV deck model 1000.

21. John Gilmore, "What's Wrong with Copy Protection" (2001),
Spectacle.org. Online at http://www.spectacle.org/0501/gilmore.html

22. Gilmore e-mails me: "It has been quite an 'interesting' exercise
trying to get some of the irreplaceable live recordings off my MiniDiscs. So
far I have been able to transfer ten or twenty, with great effort. The
replaceable ones I'm ignoring (buying used CDs of them, which is both
cheaper and more reliable)." E-mail interview (April 27, 2004).

23. In the same e-mail, Gilmore writes:
In the flash memory market, there's only one viable form factor
remaining that doesn't include copy protection: Compact Flash. MMC never
gets capacity upgrades; the compatible but copy-protected "SD" (Secure
Digital) format does. Sony Memory Sticks all have copy protection. In the
hard-disk market, what happened was that the copy-protection standard got
sufficient public opposition that it was never made a standard in the public
standards committee. But, of course, disk drive makers are free to implement nonstandard "extensions" and disk drive purchasers are free to specify these. For example, the disk drives in every TiVo are password-locked so that they if you remove the drive and plug it into a PC, you can't access it
to extract the recorded television signals.

As a second example, computer makers like Dell buy hard drives
that are actually larger than advertised, but that are software-locked to
pretend to be a smaller size. Then Dell offers their buyers "downloadable"
hard-drive upgrades that make the drive "bigger." E.g., you may get a 40GB
drive that is really a 120GB drive‹but you can only get at the other 80MB
with some secret commands negotiated between Dell and the drive maker.

24. See, for example, www.minidisc.org/minidisc_faq.html#_q82

25. The petition is online at http://www.minidisc.org/netmd_petition_support.html

26. Sony's response is online at http://www.minidisc.org/netmd_upload_sony_reply.html

27. Here are a few: IBM's extensible Content Protection program would
allow media companies to put controls on content distributed over home
networks. The Broadcast Protection Discussion Group issued a disputed report that led the FCC to mandate adoption of the broadcast flag. Hollywood formed the Analog Reconversion Discussion Group in early 2003 to address the piracy issue.

28. Seth Greenstein, interview with the author (October 16, 2002).

7: A Nation of Digital Felons

1. Copyright owners like to say there is no "fair use right" and that
fair use is just a defense to infringement. There are others who believe
that fair use is a right. The EFF says: "Fair use is the principle that the
public is entitled, without having to ask permission, to use copyrighted
works so long as these uses do not unduly interfere with the copyright
owner's market for a work. Fair uses include personal, noncommercial uses,
such as using a VCR to record a television program for later viewing. Fair
use also includes activities undertaken for purposes such as criticism,
comment, news reporting, teaching, scholarship or research." Making "mix
CDs" or copies of CDs for the office or car are other examples of fair use
that are potentially impaired by copy-protection technologies.

2. I interviewed Whiteside, members of the delegation, and one other
person who was present during the exchange.

3. In an e-mail on March 23, 2004, Johansen tells me: "Neither I or the
two other DeCSS authors Œcracked' CSS. Cracking a crypto algorithm means
discovering weaknesses. DeCSS does not exploit any CSS weaknesses. Your
set-top DVD player and DeCSS decrypt DVDs using the exact same method."

4. Jonathan Zittrain, interview with the author (June 30, 2003).

5. Rob Kost, interview with the author (March 27, 2004).

6. My math genius of a brother-in-law tells me that number would be
8,589,934,590.

7. See the Free Expression Policy Project for the origins of the
DMCA, which had its origins in the 1994 "Green Paper" that the Clinton
administration produced in response to industry concerns about the potential
for widespread copying and sharing of books, articles, movies, music, and virtually any other expression online. The problem of electronic piracy was‹and remains‹a serious one. The question is how to address it without undermining copyright's free-expression safety valves. The Green Paper took a radical approach, asserting that every reading or viewing of a work on a computer should be considered a reproduction requiring copyright permission. Cited by Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, 2001),
p. 95. Online at http://www.fepproject.org/policyreports/
copyright2dins.html

8. Drew Clark, "How Copyright Became Controversial," National
Journal's Technology Daily. Online at
http://www.cfp2002.org/proceedings/proceedings/clark.pdf

9. The DMCA passed the Senate by unanimous consent, passed the House on a voice vote, and was signed into law by President Clinton on October 28, 1998.

10. See Kraus's testimony before the Senate Judiciary Committee
during the hearing, "Competition, Innovation, and Public Policy in the
Digital Age: Is the Marketplace Working to Protect Digital Creative Works?"
(March 14, 2002). Online at http://tinyurl.com/2hzwz

11. Brodi Kemp, "Copyright's Digital Reformulation," Yale Journal of
Law and Technology (April 2003), p. 8.

12. Princeton computer scientist Edward Felten has become one of the
leading critics of overly restrictive digital rights management systems. At
a DRM conference at the University of California, Berkeley, in early 2003,
he decried the use of DMCA-backed copy protection systems that threaten the free flow of information online and that strip away users' ability to
control devices they buy. "DRM strategies tend to take devices, whether they
are computers or media players, and turn them into black boxes, black boxes
that users are not allowed to analyze or examine or understand," he said.
"Technology, God knows, is hard enough to figure out. What we don't need to do is make it harder." Transcripts of the conference are online at
http://www.law.berkeley.edu/institutes/bclt/drm/resources.html

13. Noel C. Paul, "Digital Copying Rules May Change," Christian
Science Monitor (August 19, 2002).

14. From Digitalconsumer.org FAQs.

15. See Kim Zetter, "E-Vote Protest Gains Momentum," Wired News
(October 29, 2003). Online at
http://www.wired.com/news/business/0,1367,61002,00.html

16. Robert S. Boynton, "The Tyranny of Copyright?" New York Times
Magazine (January 25, 2004).

17. Time's article is online at
http://www.time.com/time/personoftheyear/2002/poyintro.html

18. See the EFF's "Unintended Consequences of the DMCA," online at
http://www.eff.org/IP/DMCA/unintended_consequences.pdf

19. Jon C. Dvorak, "Free Speech at Risk," PC Magazine (October 13,
2003). Online at http://tinyurl.com/2768x

20. For more, see FreeSkylarov.org/

21. ElcomSoft CEO Alex Katalov said that the DMCA charges took their
toll on his company, which spent hundreds of thousands of dollars to defend
itself. He also said his experience with U.S. copyright law should send
chills through the entire worldwide development community, especially among those who make software designed to test security and crack codes, as such programs also could run afoul of the DMCA. Alan Wexelblat, "ElcomSoft Is Being Bled Dry by Legal Fees," Internet Law News (April 2002).

22. Lawrence Lessig pointed this out on his blog at
http://www.lessig.org/blog/archives/001993.shtml

23. "The problem is the public has little or no legal right to fair
use," MIT's Henry Jenkins says. "Fair use is reserved for elite groups, like
me and you. As an academic, I can make critical commentary for an academic work. You as a journalist enjoy a fair use right. But for fair use to kick in, you have to demonstrate that it's for certain sanctioned purposes such as criticism, comment, news reporting, teaching, scholarship, or research. And those purposes don't seem to include the kinds of things the public wants to do with media right now."

24. For example, Dutch security systems analyst Neils Ferguson
discovered a flaw in an Intel video encryption system but removed all
references to his research from his Web site for fear of prosecution under
the DMCA.

25. Hiawatha Bray, "Cyber Chief Speaks on Data Network Security,"
Boston Globe (October 17, 2002). Also, at a conference of computer
professionals, Clarke observed that most security holes in software are
found not by software makers but by outsiders acting in good faith, and
those efforts needed to be shielded from the legal wrath of companies upset
at hackers who demonstrate the vulnerabilities of software and computer
networks.

26. Peter Wayner, "Whose Intellectual Property Is It, Anyway? The
Open Source War," New York Times (August 24, 2000).

27. Declan McCullagh, "Perspective: Will This Land Me in Jail?,"
News.com (December 23, 2002). Online at
http://news.com.com/2010-1028-978636.html

28. A recent court decision declared that using a password someone
gave you is not a violation of the DMCA, but it is only a district court
decision, and law scholar Ernest Miller says the law is still uncertain in
this area. See http://www.corante.com/importance/archives/002183.html

29. Jed Horovitz, interview with the author (July 1, 2003).

30. Maggie Shiels, "Unlocking the Copyright Culture," BBC News Online
(June 24, 2002). Online at http://tinyurl.com/3b3t9

31. Andy Raskin, "Giving It Away (for Fun and Profit)," Business 2.0
(May 2004), p. 112.

32. Some tech advocates have urged a Million Geek March on Washington to show their opposition to the digital clampdown. PBS.org tech writer Robert X. Cringely wrote a provocative column in 2002 that called on users to engage in "massive civil disobedience" to protest the DMCA. He offered a novel proposal: "Everyone who hates the DMCA has to illegally copy a movie or a song, and then tell both the Congress and the U.S. Copyright Office exactly what they did. We need 10 million or so confessed and unrepentant intellectual property pirates. That's too much illegal behavior to ignore."

No one (at least publicly) took up Cringely on his idea. Robert X. Cringely,
"Steal This Column," PBS.org (September 26, 2002). Online at
http://www.pbs.org/cringely/pulpit/pulpit20020926.html

33. From the "Darknet" paper:
There is evidence that the darknet will continue to exist and
provide low cost, high-quality service to a large group of consumers. This
means that in many markets, the darknet will be a competitor to legal
commerce. From the point of view of economic theory, this has profound
implications for business strategy: for example, increased security (e.g.
stronger DRM systems) may act as a disincentive to legal commerce. Consider an MP3 file sold on a web site: this costs money, but the purchased object is as useful as a version acquired from the darknet. However, a securely DRM-wrapped song is strictly less attractive: although the industry is striving for flexible licensing rules, customers will be restricted in their
actions if the system is to provide meaningful security. This means that a
vendor will probably make more money by selling unprotected objects than
protected objects. In short, if you are competing with the darknet, you must
compete on the darknet's own terms: that is convenience and low cost rather
than additional security.

8: Personal Broadcasting

1. I interviewed Raven on a number of occasions in 2003 and 2004.

2. Lisa Rein, interview with the author (July 23, 2003).

3. Warren Lieberfarb, interviews with the author (November 19 and 21,
2003). For a transcript, see Darknet.com.

4. Gregory L. Clayman, interview with the author (November 6, 2002).

5. Mike Ramsay, interview with the author (May 28, 2003). For a
transcript, see Darknet.com.

6. Mark Pesce, "Redefining Television," Mindjack (May 17, 2004).
Online at http://www.mindjack.com/feature/redefiningtv.html

9: Edge TV

1. Devin Leonard, "This Is War," Fortune (May 27, 2002).

2. Ashley Highfield, interview with the author (November 12, 2003).

3. John S. Hendricks, interview with the author (April 15, 2003). For
a complete transcript, see Darknet.com.

4. Crain Communications, "The PVR Revolution: Mere Myth or Nightmare
to Come?" (November 18, 2002).

5. Mike Ramsay, interview with the author (May 28, 2003). For a
complete transcript, see Darknet.com. In early 2005, Ramsay announced he
would leave his CEO position but would continue as chairman of TiVo's board.

6. Howard Look, interview with the author (June 18, 2003).

7. Using a different technology, smaller companies such as Akimbo
today deliver more than ten thousand video-on-demand programs.

8. Stewart Alsop, interview with the author (November 26, 2002). For
a complete transcript, see Darknet.com.

9. Tom Watson and Jason Chervokas, "How the Net Could Nuke TV:
Video File-Sharing," [Inside] (January 30, 2001).

10. Kyra Thompson, interview with the author (July 3, 2003).

11. The company rendered its name SONICblue.

12. Andy Wolfe, interview with the author (June 23, 2003).

13. Martin J. Yudkovitz, interview with the author (November 25,
2002).

14. Frank James, "FCC Chief Warns of Future Shock," Chicago Tribune
(September 7, 2003).

15. The very idea of a network may change. Instead of linear
programming that fills twenty-four hours a day, a network might put all its
efforts into a handful of high-quality shows. New networks, staffed by two
or three people, may spring up overnight, cobbling together footage from a
variety of Internet sources. High-quality, cheap-to-produce niche programming will find an audience. New stars, programs, and themes will come from out of nowhere and attract a following.

16. John Battelle wrote eloquently on this issue in his Business 2.0
column "Is TiVo NeXT?" (May 2003). Online at http://tinyurl.com/2apnr

17. For more information, see Christine Y. Chen, "I Want My iTV,"
Fortune (April 1, 2002). Online at http://tinyurl.com/347av

18. Highfield's speech was titled "TV's Tipping Point: Why the
Digital Revolution Is Only Just Beginning." Online at
http://tinyurl.com/24d3y

19. Rodney Books, "The Other Exponentials," Technology Review
(November 2004).

20. Leslie Walker, "Media Giants Need to Learn to Sing a New Tune,"
Washington Post (March 25, 2004). Online at http://tinyurl.com/23vyz

21. Testimony by Jonathan Taplin, CEO, Intertainer Inc., before the
Senate Judiciary Committee in a hearing titled "Competition, Innovation, and
Public Policy in the Digital Age: Is the Marketplace Working to Protect
Digital Creative Works?" (March 14, 2002).

10: The Sound of Digital Music

1. Tony Abbott, interview with the author (November 20, 2003).

2. Erich Ringewald, interview with the author (January 4, 2004).

3. Kevin Kelly, "Where Music Will Be Coming From," New York Times
Magazine (March 17, 2002).

4. Frank Ahrens, "Technology Repaves Road to Stardom," Washington
Post (May 2, 2004).

5. Clay Shirky, "The Music Business and the Big Flip," Shirky.com
(n.d.). Online at http://www.shirky.com/writings/music_flip.html

6. Rick Karr, "TechnoPop," NPR (September 20, 2002). Online at
http://www.npr.org/programs/morning/features/2002/technopop/index.html

7. Roger McGuinn, interview with the author (February 3, 2004).

8. "Music on the Internet: Is There an Upside to Downloading?" Senate
Judiciary Committee (July 11, 2000). Online at
http://judiciary.senate.gov/hearing.cfm?id=195

9. Joy Lanzendorfer, "Filesharing Is Not the Enemy," AlterNet.org
(May 14, 2004). Online at http://www.alternet.org/story/18698

10. Mike Sciullo, interview with the author (September 3, 2002).

11. Cary Sherman, interview with the author (March 2, 2003).

12. Neil Strauss, "Behind the Grammys, Revolt in the Industry," New
York Times (February 24, 2002).

13. Steve Albini, "The Problem with Music," Negativland.com (n.d.).
Online at http://www.negativland.com/albini.html

14. Courtney Love, "Courtney Love Does the Math," Salon (June 14,
2000). Online at http://tinyurl.com/2x25e

15. According to the Pew, the number of downloaders who say they
don't care about copyright increased from 61 percent in JulyAugust 2000 to
67 percent in March-May 2003.

16. Nathan Anderson, "Books & Culture's Book of the Week: Thou Shalt
Not Swap," Christianity Today Magazine (May 24, 2004). Online at http://www.christianitytoday.com/ct/2004/121/13.0.html

17. James M. Burger, interview with the author (October 15, 2002).

18. Thirty-seven percent supported the industry's legal actions. Seven percent of those surveyed had no opinion. One thousand adults were
surveyed, with results accurate to plus or minus 3 percent. Results
available at http://company.findlaw.com/pr/2004/062904.musicpiracy.html

19. See Moby's entry at http://tinyurl.com/39xay

20. Janis Ian wrote about her experience online at http://www.janisian.com/
article-internet_debacle.html and at http://www.janisian.com/article-fallout.html

21. Researchers at Harvard and the University of North Carolina
tracked music downloads over seventeen weeks in 2002, matching data on file transfers with actual market performance of the songs and albums being
downloaded. The study is online at http://tinyurl.com/yr5hf

Harvard Business School professor Felix Oberholzer-Gee, coauthor of
the report, told Rolling Stone, "The Internet is more like radio than we
thought. People listen to two or three songs, and if they like it, they go
out and buy the CD." Damien Cave, "Don't Blame Kazaa," Rolling Stone (April 29, 2004).

Other credible research shows that the labels raised CD prices
during a down economy and slashed the number of new releases by almost 25 percent over three years, and then measured sales losses not on lost sales but on fewer units shipped to retailers. See James K. Willcox, "Where Have All the CDs Gone?," Sound & Vision (June 2003). Online at
http://tinyurl.com/3xqga

22. As the Los Angeles Times editorialized in August 2003, "Songs
downloaded free deny artists and record companies their due. Even so, the
recording industry has abetted the robbery with its own greed and
ineptitude. . . . The digital revolution, like it or not, has transported
the music industry to a place where it must thrive online. And the more the
industry resists creating legal, easy and affordable ways to download all
music‹pleasing consumers, artists and entrepreneurs alike‹the more it will
achieve the opposite: making illegal sharing more entrenched and
innovative." Editorial, "Tone-Deaf Music Industry," Los Angeles Times
(August 4, 2003).

23. Editor in chief Chris Anderson wrote in the January 2004 issue of
Wired magazine: "Unlike music labels, movie studios are not hated by
consumer and artist alike. Labels are seen (not entirely unfairly) as
gouging consumers, screwing musicians, and otherwise failing to earn their
middleman markup. But the value of studios is clear. Movies are huge, expensive endeavors that can't be made in a garage or on a bedroom mixing board. Consumers are happier paying $10 for a special-effects extravaganza or an epic drama than they are $16 for a glorified mix tape. . . . Customers who feel they're getting their money's worth are less likely to turn into pirates. . . . Now the bad news: You're at risk of alienating your customers like the music industry did. The do-not-record 'broadcast flag' that the TV industry just pushed through the FCC will introduce new restrictions on programming, none of which benefit consumers. Proposed legislation that throws anyone caught with a prerelease movie on their hard drive into prison for three years is the sort of disproportionate response that gives the RIAA a bad name. The notorious Digital Millennium Copyright Act is Hollywood's fault. And extending copyright protection year after year so that the film and television archives stay shut isn't just bad law, it's depriving Americans of their cultural history."

24. Stewart Alsop, "My New Favorite Toy," Fortune (June 25, 2001).

25. For more on Bull's research, see Leander Kahney, "Bull Session
with Professor IPod," Wired News (February 25, 2004). Online at
http://tinyurl.com/2a8w8

26. Alex Salkever, "A Talk with iTunes' Conductor," BusinessWeek Online
(May 7, 2003). Online at http://tinyurl.com/245zq

27. A beta release came in 1998. Bob Ohlweiler, Musicmatch's senior
vice president of business development, said: "Before the jukebox, there was
Winamp and some kludgey single-purpose players and the Real player, and
early on there was an app called Audio Grabber that was just a ripper and
encoder that would convert a CD into MP3. That was the classic combination:
Audio Grabber for encoding and Winamp for playback, before Musicmatch became popular. The jukebox basically made a breakthrough in ease of use in one application where you could record, manage and play back your music from playlists you've created. In version 1.1 we added burning, so you had
ability to burn and download music to portable devices."

28. Musicmatch Jukebox's widespread dissemination is because of
bundling deals with all the major PC makers.

29. There are varying estimates for the size of the "music industry."
The record industry sells $12 billion a year in the United States, mostly
from the sale of CDs and other recordings. Sales worldwide total about $38
billion.

30. Dennis Mudd and other Musicmatch executives were interviewed by
the author on August 22, 2002.

31. The DMCA can be found online at http://tinyurl.com/26q74

32. Under a deal with Apple, Musicmatch makes the software for
PC-based iPods.

11: Channeling Cole Porter

1. Jim Griffin, interview with the author (November 20, 2003).

2. I joined the Pho list in early 2003.

3. Bowie told the New York Times, "The absolute transformation of
everything that we ever thought about music will take place within 10 years,
and nothing is going to be able to stop it. I see absolutely no point in
pretending that it's not going to happen. I'm fully confident that
copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing." Jon Pareles, "David Bowie, 21st-Century Entrepreneur," New York Times (June 9, 2002).

4. "EW Talks to David Bowie and Moby," Entertainment Weekly (August
19, 2002).

5. Cole Porter quotation, online at http://tinyurl.com/38fyo
Incidentally, Sammy Cahn probably wasn't the first to use that
expression.

6. William Fisher of Harvard and Neil Netanel of Texas are among
those proposing compulsory licenses. Technorati principal engineer Kevin
Marks dissected such licenses in this posting on Lawrence Lessig's blog:

I strongly disagree - such proposals only benefit incumbent publishers, not creators. Here I explained this in detail:

1. By statutorily imposing a solution like this, it makes it much
harder to establish a true marketplace for digital media‹people are
reluctant to pay twice. This will reduce overall spending on music.

2. Statistical measurement of a scale-free distribution like
music (or the net) is hard to do well‹because the central limit theorem does
not apply, most sampling will count the large players accurately, but miss
significant numbers of small players who may well predominate in aggregate.
This kind of centralised scheme undoes the bottom-up formation and
propagation of musical styles that the net can do, and puts us back into a
top 20 world. I analysed movies, newspapers and weblogs scale-free
distributions. If anyone has good data on music revenues by album or group,
let me know.

3. Any centralised taxation-like scheme is highly prone to
capture by a few interest groups‹ASCAP and BMI are poorly regarded by
independent musicians for this very reason.

4. By legitimating only non-commercial repurposing of existing
copyright, it does nothing to cut through the thicket of rights and
licensing that acts as dead weight on those who create; instead it pushes
derived works into a second-class non-commercial status. My model in which
derivative works pass through the cost of the source works is far more
liberating.

A far better idea is to establish a true marketplace for
media that incorporates incentives for those who buy and sell within it to
reward copyright holders.

Posted by Kevin Marks on April 6, 2003. Online at
http://tinyurl.com/35zhc

7. Hal R. Varian, "New Chips Can Keep a Tight Rein on Consumers," New
York Times (July 4, 2002).

8. Pete Rojas, "Bootleg Culture," Salon (August 1, 2002). Online at
http://archive.salon.com/tech/feature/2002/08/01/bootlegs/

9. "Q&A with R. U. Sirius, Don Joyce, Mark Hosler, and U2's the
Edge," Mondo 2000 (June 25, 1992).

10. Specifically, the irreverent notice on Negativland.com said:
"Negativland's friends and lawyers who had seen ŒThe Mashin' of the Christ'
had strongly advised against a public release ever occuring (the
'anti-circumvention' provision of the Digital Millennium Copyright Act says
that doing this sort of decryption to make collage is illegal), but since
God is said to see all secrets, only the public is left to be surprised by
this unauthorized birth from Negativland. Voracious pirating of this work
has spread across the Net and in the last few days high-resolution versions
of 'Mashin''' have even been appearing on P2P networks disguised as a
complete copy of ŒThe Passion of the Christ.'" Online at
http://www.negativland.com/mashin/howto.htm

11. The New York Times reported: "Some of the world's biggest record
companies, facing rampant online piracy, are quietly financing the
development and testing of software programs that would sabotage the
computers and Internet connections of people who download pirated music,
industry executives say." Andrew Ross Sorkin, "Software Bullet Is Sought to
Kill Music Piracy," New York Times (May 4, 2003).

12. Sam Diaz, "Genres Find Audience on Net Radio," San Jose Mercury
News (April 30, 2004). Live365 gives users the Web-based tools and storage
space to arrange playlists from music they enjoy. Amateur DJs upload their
favorite music, then manage their playlists on the company's servers.

13. Raghav Gupta, interview with the author (May 26, 2004).

14. Ann Gabriel, interview with the author (June 15, 2004).

15. A list of AM and FM stations with HD radio technology can be
found at http://www.ibiquity.com/hdradio/hdradio_hdstations.htm

16. Cheryl Leanza, interview with the author (May 4, 2004). The move
to digital radio also raises a thorny public policy question: what is the
difference between digital radio heard over a digital device (where no
performance royalty is owed the artists) and Internet radio or wireless
streaming music heard over the same digital device (where Congress imposed a performance fee)? None, really.

17. Brad King, "Music Biz Lament: Stealing Hurts," Wired News (September
26, 2002). Online at http://www.wired.com/news/mp3/0,1285,55393,00.html

18. Jennifer Ordoñez, "Pop Singer Fails to Strike a Chord Despite the
Millions Spent by MCA," Wall Street Journal (February 26, 2002).

12: Architects of Darknet

1. Seth Schiesel, "File Sharing's New Face," New York Times (February
12, 2004).

2. Amy Harmon, "File-Sharing Program Slips Out of AOL Offices," New
York Times (June 2, 2003).

3. Saul Hansell, "Crackdown on Copyright Abuse May Send Music Traders
into Software Underground," New York Times (September 15, 2003).

4. Powell Fraser, "Secret Networks Protect Music Swappers," CNN.com
(July 30, 2003).

5. Benny Evangelista, "Firm Sleuths Out Illegal File Sharers," San
Francisco Chronicle (July 21, 2003). Online at http://tinyurl.com/332no

6. Declan McCullagh, "Piracy and Peer-to-Peer," CNET News.com (July
7, 2003). Online at http://tinyurl.com/2p7f6

7. Ian Clarke, interview with the author (November 3, 2003). The full
transcript of his interview is on Darknet.com.

8. "Case Studies: Info-Share," Groove Networks. Online at
http://www.groove.net/default.cfm?pagename=CaseStudy_Infoshare

9. Spencer Reiss, "Dark Netizen," Wired (August 2004).

10. Alex Yalen, interview with the author (November 12, 2002).

11. Lauren Weinstein, interview with the author (December 8, 2003).

12. Heather Green, "The Underground Internet," BusinessWeek Online
(September 15, 2003).

13. Clay Shirky, interview with the author (November 7, 2003).

14. Alex Salkever, "Big Music's Worst Move Yet," BusinessWeek Online
(January 27, 2004).

15. Programming on cable and satellite is already protected through
encryption. But surprisingly, up to 40 percent of all U.S. viewers still
receive some television through an antenna, researchers have found.

16. Greenstein maintains that in-home use, such as home networks,
should not be widely affected by the introduction of the broadcast flag. He
says, "Many TVs use DTCP, including Mitsubishi and many other brands. Cable boxes are coming out using DTCP. When you acquire new source devices with 5C for IP, and new sink devices with 5C for IP, they should be able to communicate using today's wireless equipment between them. Also, there will be adapters that will wirelessly receive the digital video and audio and convert it for use in the analog inputs of existing TVs, VCRs, etc. So the
broadcast flag should not be a significant impediment to in-home use. The
real issue is the impact with respect to transmissions outside the home‹some
of which might be fair use, though others clearly would not be."

17. The FCC ruling has no effect outside the United States. There's
nothing to stop viewers of American television programs in Europe,
Australia, and elsewhere from recording and sharing HDTV shows if they so
choose.

18. Zoe Lofgren, "FCC Rule Could Harm Tech Innovation," San Jose
Mercury News op-ed page (November 17, 2003). Immediate casualties of the
broadcast flag include open-source software technologies for digital TV,
such as GNU Radio and dscaler. The FCC requires the software running in DTV receivers to be "robust"‹that is, untamperable‹and free software
applications are built to be modified by end users.

19. This example is drawn from Cory Doctorow's essay at http://bpdg.
blogs.eff.org/archives/000113.html

20. Greenstein notes: "Although [the entertainment companies] would
like this, they currently are leaning toward a more technically feasible
solution, known as CGMS-A, in which three bits signal five states: Copy
Never, Copy One Generation, Copy No More (for the one-generation copy), Copy Freely, and Copy Freely but protect against unauthorized distribution. There would still need to be a legislative component."

21. Robert X. Cringely, "I Told You So," PBS.org presents "I,
Cringely: The Pulpit" (July 27, 2002). Online at
http://www.pbs.org/cringely/pulpit/pulpit20020627.html

22. Ross Anderson, "ŒTrusted Computing' Frequently Asked Questions,"
University of Cambridge Computer Laboratory. Online at http://www.cl.cam.ac.uk/~rja14/tcpa-faq.html

23. Schoen's full paper, "Trusted Computing: Promise and Risk," is
available on the EFF.org site at
http://www.eff.org/Infrastructure/trusted_computing/20031001_tc.php

24. Clay Shirky, "Content Shifts to the Edges, Redux," Shirky.com
(n.d.). Online at http://www.shirky.com/writings/content2.html

13: Mod Squads: Can Gamers Show Us the Way?

1. Dean Takahashi, "ŒEmbedded' in a Virtual World," San Jose Mercury News (April 26, 2004). Author's weblog is at
http://secondlife.blogs.com/nwn/

2. David Kushner, author of Masters of Doom, profiled There Inc. and Second Life in "My Avatar, My Self" for the April 2004 issue of MIT's Technology Review. Online at
http://www.technologyreview.com/articles/kushner0404.asp?p=1

3. "[B]uildings constructed in the U.S. after December 1, 1990, are protected under copyright law, and you might need permission to publish the picture," Derrick Story notes in Digital Photography Hacks (Sebastopol, Calif.: O'Reilly Media, 2004), p. 77.

4. The Twelve Monkeys episode is recounted in Lawrence Lessig's The Future of Ideas (New York: Random House, 2001), pp. 45. The Simpsons episode is recounted in his Free Culture, pp. 9598.

5. See David Kushner's marvelous book Masters of Doom (New York: Random House, 2003) for details.

6. Estimate by the Consumer Electronics Association.

7. Estimate by IDC Research in Framingham, Massachusetts.

8. Geoff Keighley, "Game Development à la Mod," Business 2.0 (October 2002). Online at http://tinyurl.com/ywefp

9. Hiawatha Bray, "ŒMods' Squad Adds New Life to Old Games," Boston Globe (August 27, 2003).

10. The contest is online at www.makesomethingunreal.com.

11. Michael Marriott, "Games Made for Remaking," New York Times (December 4, 2003).

12. Phil Haymes, "Across the Pond with Phil Haymes, Part 3," Gaming World (n.d.). Online at http://tinyurl.com/2anrp

13. Seth Schiesel, "Some Xbox Fans Microsoft Didn't Aim For," New York Times (July 10, 2003).

14. Annalee Newitz, "The High-Tech Black Market," San Francisco Bay
Guardian (December 10, 2003). Online at
http://www.sfbg.com/38/11/cover_hightech.html

15. Schiesel, op cit.

16. Scarface answered my questions by e-mail on November 16, 2003. The full transcript of his interview is on Darknet.com.

17. Busts on the mod scene have not had an effect on the game release
scene, but there have been separate busts on the games/apps/mp3 scene that have greatly affected access to releases because after those busts, sites
have moved further underground.

18. Marriott, op cit.

19. See, for example, News Corp. chairman Peter Chernin's keynote
speech at Comdex, analyzed by blogger Jonathan Peterson, "Breaking Down
Peter Chernin's Comdex Keynote" (November 23, 2002). Online at
http://www.way.nu/archives/000493.html

14: Remixing the Digital Future

1. I interviewed Victor LaCour at the center on November 20, 2003, as well as by phone and e-mail.

2. Ulrich Neumann, interview with the author (February 13, 2004).

3. "Media and Entertainment 2010," an IBM Institute for Business Value Future Series report, 2004. The paper is online at
http://tinyurl.com/2z36k

4. See the Center for Responsive Politics at
http://www.opensecrets.org/industries/indus.asp?Ind=B02

5. Delaware, Illinois, Maryland, Michigan, Pennsylvania, Virginia,
and Wyoming have already passed such laws. For details, see Tony Bradley, "Are You Breaking the Law?," About.com (n.d.). Online at
http://tinyurl.com/2q42l

6. Glenn Reynolds, "Biden Alert," Instapundit.com (July 29, 2002).

7. John Schwartz, "Report Raises Questions about Fighting Online Piracy," New York Times (March 1, 2004). The full report is online at http://www.ced.org/docs/report/report_dcc.pdf

8. My view is that the power of global publishing brings with it
responsibility. Camcording a film in a movie theater is wrong. Using P2P networks to get all your music cheats musicians and songwriters. Copyright holders should retain the sole opportunities for commercial exploitation of their work. But entertainment companies overreach when they insist on trying to control all uses of their works‹an impossibility in an age of perfect copies and global distribution. We need to distinguish between commercial infringement by pirates and small-scale copying by individuals. When users do borrow prior works for personal, noncommercial projects, the original creator should receive due credit. Embedded metadata is one way to do so.

9. The law also should allow digital rights to expand and grow with the culture, and it should trump shrink-wrap licenses or fine-print contracts that seek to limit the public's rights. DigitalConsumer.org proposes a six-point Consumers' Bill of Rights, online at http://www.DigitalConsumer.org/bill.html

10. In the case of region coding, Yale's Ernest Miller tells me: "It depends on the device, actually, and how you get around the region coding. Region coding isn't an official part of the CSS encryption scheme in a sense. That is, you don't have to bypass CSS in order to change region coding on most devices (though one could possibly set it up that way, I believe). The region coding is actually tied to the CSS through contract. If you want to manufacturer a DVD player legally, you have to license CSS from the DVDCCA. When you license CSS, part of the contractual obligation (according to reports) is that you enable region coding. Of course, if you are using a software DVD player and disable the region coding, even if you don't mess with CSS, you have likely violated the clickwrap contract for the software DVD player and you would be guilty of breaching your contract (though whether the contract is enforceable is another story). So the answer to your question is: Yes, they may be violating the law depending on how they get around the region coding."

11. In addition, the massive fines and prison time for DMCA
violations and file trading should be reformed so that the penalty fits the offense. Finally, any reform of the DMCA should include disclosure requirements to warn customers when they are buying a device, CD, or other piece of media containing copy protections that result in less functionality.

12. Critics of Lawrence Lessig and other copyright reformers often seem exasperated by the paucity of realistic options available to those pushing to expand the public's digital rights. "[C]orporations spend vast sums in campaign contributions and lobbying to extend their property interests. It is hardly Lessig's fault, but it is hard to see how his side can compete," Adam Cohen wrote in a New York Times book review of Free Culture. Adam Cohen, "'Free Culture': The Intellectual Imperialists," New York Times Book Review (April 4, 2004).

While Lessig believes pushing digital culture underground so that "all the cool people will be playing the black market" will be ultimately destructive to the rule of law, I'm suggesting that when citizens are made to feel powerless, they are disposed to take up the tools at their disposal. They retreat to the Darknet only when sanctioned avenues are closed to them.

(For the record, I also part ways with Lessig and others over the idea of a compulsory license for all-you-can-eat music downloading.) For more on Lessig's views on the subject of darknets, see Mego Lien, "Free Culture Advocate to Speak," the Phoenix (April 22, 2004). Online at
http://phoenix.swarthmore.edu/2004-04-22/news/14033

13. Robert Bielby, "Digital Consumer Convergence Demands
Reprogrammability," Xcell Journal Online (March 2, 2002). Online at
http://tinyurl.com/yrtge

14. By 2008, three-quarters of U.S. homes will have at least one PC with entertainment functionality, and 30 million homes will have a data network. More factoids:
• In 1995, a four-megapixel digital camera cost $28,000. Today it costs less than $300.
• In 1997, a CD burner for the PC, with 2X recording speed, went for $469. Today a CD burner with 52X recording speed costs $32.
• In 1997, a 2.1-gigabyte hard drive sold for $179. Today a
200-gig hard drive‹100 times bigger‹costs $139.

Source for data network estimate: Parks Associates, a Dallas-based research firm.

15. In 1901 and 1906, the Victor Talking Machine Co. of Camden, New Jersey, bought the patents for the design of both the flat-disc phonograph and the phonograph cabinet.