We've failed to keep our podcast alive here at the TLF -- and I apologize about that -- but there are still a lot of good tech policy-related podcasts out there for you to listen to. Here's a new one that sounds very promising. It's called the "Intellectual Property Colloquium" podcast, and it's hosted by the brilliant Doug Lichtman, a professor of law at UCLA Law School.

The first show features a discussion that took place in one of Prof. Lichtman's classes in which the always-interesting Fred Von Lohmann of the Electronic Frontier Foundation (EFF) begins by talking about the controversial Cablevision DVR case and then transitions into copyright law and infringement more generally. Doug jumps into the conversation about 12 minutes and needles Fred with a litany of excellent questions that really get the debate going. Whenever Doug and Fred go at it, it is a real intellectual clash of the titans.

The upcoming shows look just as good. Next up is a debate between Stacey Byrnes of NBC-Universal and Tim Wu of Columbia University about the DMCA notice-and-takedown process. The November show will include Dan Solove talking about "Privacy in a Networked World." [I am just finishing up his important new book, Understanding Privacy, and I will be posting a review of it here soon.] And the December show is called "Everyone Hates DRM," and is set to include Ed Felton of Princeton University versus Dean Marks of Warner Brothers. That should be a interesting conversation.

At first glance, it seems to me that this big settlement announced today between Google and the book publishers regarding Google Book Search sounds a lot like an ASCAP model for online book transactions. Specifically, of the key provisions of the agreement, it's this last one about the Book Rights Registry that makes me think of ASCAP:

Compensation to Authors and Publishers and Control Over Access to Their Works - Distributing payments earned from online access provided by Google and, prospectively, from similar programs that may be established by other providers, through a newly created independent, not-for-profit Book Rights Registry that will also locate rightsholders, collect and maintain accurate rightsholder information, and provide a way for rightsholders to request inclusion in or exclusion from the project.

Of course, you'd need to get a lot more companies than just Google to play ball to make it work for music -- specifically, you'd need all the ISPs on board. For books, by contrast, the reason today's deal will likely work is because Google has been the only online operator with the scale and interest in putting the entire contents of so many books online. But all music is already online and much video is heading online, too. So, I think it would be much, much more challenging to make collective licensing work for music and video the way it appears it might work for books. (We'd probably need compulsory licensing instead, which I am no fan of). The key to these voluntary collective licensing systems is large, trusted intermediaries that can clear a massive volume of transactions. Google can do that for books as today's deal makes clear. It will be interesting to see if others suggest that music and video can and should work the same way. I'm skeptical, and I'm also a bit hung up on some fairness issues about how it would work, which I might touch upon in a future essay.

But I'm no copyright expert so I'd be interested in hearing what my colleagues and others think.

In the case of ERIPA, the usually sound impulse to avoid further federal spending is misplaced. Dynamic analysis of ERIPA's costs and benefits shows that ERIPA is better than "revenue neutral"--it is "revenue enhancing." The Coalition Against Counterfeiting and Piracy made this point by commissioning the Tyson Report, a conservative economic analysis of the probable costs and benefits of IPR-enforcement reform.[2] The Tyson Report concluded that because counterfeiting and piracy annually drain about $225 billion from the U.S. economy, IPR-enforcement reforms that only slightly decreased counterfeiting and piracy over three years would increase U.S. output, earnings, and employment enough to increase federal tax revenues by $4.9 to $5.7 per dollar spent on reform, and generate another $1.25 billion in state and local tax revenues. For the American taxpayer, dollars spent on IPR-enforcement reform are investments that offer potential three-year returns of 490% to 570%, even when discounted to present value.

Bruce Everiss, a UK-based video game industry veteran, and author of the blog Bruce on Games, has penned a comprehensive essay on video game piracy through the years. I recommend you read the entire piece, but here's the take away:

And the game industry continues to grow and prosper, despite the piracy. This is because the proliferation of platforms allows publishers to more easily abandon platforms that are pirated to the point of being uneconomic. Instead they concentrate on platforms where there are windows of opportunity to run a viable business. Either because the anti piracy technology is on top or because there is a sufficient number of honest customers to get a return, even sometimes with a heavily pirated platform. Games with an online element can often be made very pirate proof which has been a major incentive for developers to go down this route.

So for 25 years or so game players have been stealing games in truly massive numbers with zero chance of being caught and punished for their crime. Very often far more copies of a game title have been pirated than have been bought. This self evidently causes harm to the games industry, ultimately leading to less money being invested in games for the pirated platform. So, the game player suffers for his theft by having less games and lower quality games. All pretty obvious to anyone but the pirates who make all sorts of feeble excuses to justify their stealing.

[My own views on video game piracy can be found here and here.]

On Monday, I spent part of the morning listening to various academics and legal experts at "Copyright and the University: An Academic Symposium," an event hosted by ex-PFFer Patrick Ross. The event was meant to address attitudes towards copyright on college campuses.

The first panel, which followed a keynote by the US Register of Copyrights, Marybeth Peters, focused on "defining the problem." The panelists, adeptly led by Andrew Noyes of TechDaily, discussed everything from the attitudes of students towards the music industry to licensing arrangements for works included in course material. A few highlights and observations:

In an increasingly digital world filled with intangible products and instantaneous downloads, does the world really need packaged media anymore? That was the theme of an interesting panel I sat in on this morning at CES in Las Vegas. Panelists debated the future of packaged, physical media (CDs, DVDs, tapes, etc) and generally concluded that it was not dead just yet.

For example, DVDs as a form of packaged media are not dead but growth is slowing, argued Stephanie Ethier, an analyst with market research firm InStat. As broadband speeds grow, however, this could change. Homes need to have roughly 10 Megs of bandwidth to have a satisfactory movie downloading experience, she said, and that world could be upon us soon. 18% of music will be distributed electronically by 2010, she said, but there is still value in the CD due to the "collection value" many users place on having the actual physical disc in their home somewhere. Don Patrican of Maxell agreed saying that "people are collectors by nature" and that they love the idea of having a small personal and physical library in their home that they can see and feel. I thought that was a very good point which I can certainly relate to since I do that myself.

But I then asked a question about whether or not this was all just a generational thing and wondered if my kids would have ANY physical media / storage devices or formats when they are adults in the 2020's. In response, Don Patrician said we shouldn't confuse early adopters with the mass market. "Many demographic groups will not embrace all this new technology for some time." Rich Lappenbusch of Microsoft generally agreed saying that "Many families still don't trust technology" and want the security that comes along with a physical backup copy.

Last week over on IP Central I wrote about how excited I was to learn that Microsoft would soon be announcing an eagerly awaited movie / video downloading service for its XBOX 360 gaming console. And now we have the details of their new business model. And, in my opinion, it looks like a winner for MS, content developers and consumers alike.

Beginning on November 22nd--the second anniversery of the XBOX 360 launch--XBOX users will be able to use their "Microsoft Points," which can be earned or purchased on the XBOX Marketplace, to download movies and TV shows from affiliated partners. The first round of deals MS cut were with CBS, MTV Networks, Paramount Pictures, Turner Broadcasting System Inc., Ultimate Fighting Championship (UFC), and Warner Bros. Home Entertainment.

More deals are sure to follow, but that's quite a bit of content already. I look forward to downloading Comedy Central and VH1 shows in particular, in addition to all the movies they'll be offering. And my kids will love all the Nickelodeon and Nicktoons stuff that is on there. (A list of all the content companies involved in the deal can be found here).

Politicians love to stifle free expression. Congress recently increased indecency fines on broadcasters ten-fold, and now some stations are wary to air documentaries that contain salty language. Some in Congress want to extend those rules to cable and satellite platforms, despite that pesky First Amendment. And the Internet remains a favorite target, most recently social-networking sites.

Totalitarian states remain the poster children of such acts. But other democracies around the world are doing their level best to give U.S. politicians a run for their money. Several examples of this from around the globe are featured in "Do's and Dont's for Global Media Regulation: Empowering Expression, Consumers and Innovation," a Progress on Point that PFF has published today. It focuses on Canada, Australia and Europe. In that sense it builds on papers I've written on the Television without Frontiers Initiative (here and here) backed by European Commissioner Viviane Reding (shown below in a nice two-fer shot).

The European Commission Committee on Culture is expected this month to issue a report on TVwF, so despite growing opposition to it among business leaders in Europe it appears not to be going away. Thus, my paper proposes five reasonable Do's and Don'ts that policymakers in the US and abroad should follow to ensure free expression, innovation and consumer benefits:

1. Do enforce existing child-protection laws.
2. Don't distinguish between types of content delivery.
3. Do harmonize by deregulating down.
4. Don't discourage migration of content.
5. Do support intellectual property rights.

These five principles will help policymakers avoid needlessly regulating new technologies, will avoid skewing the market by favoring one technology over another, but will not prevent prosecution of those engaging in criminal behavior. If applied in Canada, Australia, Europe or the US, everyone will win.

Among the corollaries that fall out of the Coase Theorem is that, when property rights are ill-defined or uncertain, commercial transactions cannot take place because no party know what they own and the price system cannot function. It also follows from this corollary that parties will spend a great deal of time, money and effort to define property rights, inevitably in their favor. This modest point came to me last week while reviewing Jim's POP on the fight between cable and content companies over the extent of the Sony fair use principle and it applicability to head-end DVR-like technology.
But it is also a broader point that encompasses many of the current regulatory battles: uncertain property rights preclude private bargaining, but also inspire intense (and socially wasteful) amounts of rentseeking to define the property right. This is net neutrality, this is fair use, it is must carry, this was the unbundling fight surrounding the '96 Act. it is the intercarrier compensation debate; heck, it is a reductive tour de force of all regulatory behavior in the digital space. If property rights are ill-defined, or can be relatively easily re-defined, then parties will invest in getting the government to make these changes.
In the Cablevision case, the "fair use" principle precludes content and cable companies from quickly reaching a licensing deal for this admittedly new way to package and time shift content. In a Coaseian world, if one or the other party had a clear property right, a deal would quickly be struck. (For now, nevermind the productive effects.)

The Economist's main editorial this week is on the challenges, and opportunities, that digitization gives to content companies. Noting the malaise in content companies equity prices, the migration of advertising revenues to the Internet, the decline in movie ticket and DVD sales, The Economist notes that the digitized, networked economy is hitting the content industries in the core of their business model. This seems right, and furthermore, the winds have yet to hit gale force, which they inevitably will.

At the same time, the editorial notes the remarkable staying power of content and the content companies' being good at marshaling the capital and creative talent to produce high quality (at least in production values, if not actual content) entertainment. In short, content is what people are willing to pay for over those high speed connections, and it is not likely that a garage entrepreneur is going to produce and create the next blockbuster film or TV series.