In this final bonus Walled Culture podcast episode - recorded mid-2022 and kept under wraps as a special 1st anniversary episode, we welcome Fred von Lohmann, former Electronic Frontier Foundation (EFF) and Google copyright counsel. Our conversation starts with recalling how he got intrigued by copyright, crediting John Perry Barlow, and explaining how he was at the right juncture to become a tech enthusiast.

Fred talks about his role at EFF during what was a unique time from a copyright perspective, characterised by pivotal court cases in the 2000s. He looks back at the impact and effects of the rights holders’ battle against peer-to-peer (P2P) technology. Their fierce resistance against anything related to P2P, in his view, crippled the potential transition towards a decentralised Internet back then. He did see one silver lining from the aftermath: the P2P revolution opened music fans’ eyes to what could be, pressuring the music industry to start meeting consumers’ demand.

Fred highlights the Digital Millennium Copyright Act’s (DMCA) (invisible) role in shaping our daily lives. On the one hand, the DMCA gave a legal justification to rights holders’ control over technology beyond the copyright realm by providing legal protections for Digital Rights Management (DRM). This has impacted various types of content, be it (now old-school) DVDs, eBooks or games. On the other, the DMCA boosted the Internet’s success through the safe harbour regime, offering a shelter from the ‘open sea’ with hurricanes of lawsuits.

The latter troubled rights holders, leading Fred to discuss the emergence of (imperfect) copyright filters. In this context, he touches upon Google’s Content ID, rights holder abuses, and the EU Copyright Directive’s questionable filtering obligations. He puts forward a crucial, yet unanswered, question in this debate: “how do you build filters that are fair to users and also don't constrict creativity too much?”

Finally, Fred briefly shares his insights on how copyright intersects with competition and innovation, especially in the context of software interfaces. In his closing remarks, he echoes some of Cory Doctorow’s wisdom, as he emphasises the need to think about copyright’s impact on fans and innovators.

📌Time Stamp

⏲️[00:00] Intro

⏲️[01:42] The conversion moment: a Stanford Law student triggered by John Perry Barlow

⏲️[05:09] A tech enthusiast: the ARPANET days and tech exposure in the San Francisco Bay area

⏲️[10:16] A unique period from a copyright perspective: joining the Electronic Frontier Foundation (EFF)

⏲️[14:46] Pivotal court cases in the 2000s: from MGM v. Grokster to JibJab’s ‘This Land is Your Land’ parody

⏲️[22:34] The knock-on effects of rights holders’ P2P battle: a missed opportunity for a decentralised Internet

⏲️[29:00] No iTunes without Napster: the music industry’s path to meeting consumers’ demand

⏲️[31:06] The Internet’s ‘invisible’ part shaping our reality: the Digital Millennium Copyright Act’s (DMCA) safe harbour vs. the ‘open sea’ with hurricanes of lawsuits

⏲️[34:28] The DMCA & Digital Rights Management (DRM): a legal justification to rights holders’ control over technology beyond the copyright realm

⏲️[37:00] DRM: rights holders dictating the rules, from (now old-school) DVDs to eBooks and games

⏲️[44:11] The DMCA’s safe harbour: boosting the Internet’s success, while troubling rights holders

⏲️[47:25] (Imperfect) copyright filters: from Google’s Content ID, rights holder abuses, to the EU Copyright Directive’s questionable filtering obligations

⏲️[53:12] Filters vs. the remix culture: allow people to engage with culture for the benefit of rights holders

⏲️[57:20] Software interfaces: copyright raising important questions for competition and innovation

⏲️[01:03:11] Echoing Cory Doctorow’s wisdom: think about copyright’s impact on fans and innovators

⏲️[01:04:26] Wrap-up

📌Guest of this Episode

🎙️Fred von Lohmann

former Electronic Frontier Foundation (EFF) and Google copyright counsel

🌐 https://www.linkedin.com/in/fred-von-lohmann-06b2

  𝕏  https://x.com/flohmann

Glyn Moody has been writing about copyright, digital rights, and the Internet for 30 years. He is the editor of the Walled Culture project and author of Walled Culture - the Book (freely available as ebook). He previously wrote ‘Rebel Code: Linux and the Open Source Revolution’. He explains how the Walled Culture project is a reflection on digital copyright going wrong, and how copyright and the Internet have shown to be fundamentally incompatible. Glyn highlights how there’s no escaping copyright in an online world. He shares some copyright absurdities, with big content fighting the visually impaired and initiatives like Project Gutenberg and Google Books. He talks about how Big Content put on shackles on libraries thanks to Digital Rights Management (DRM), and reflects on the injustice of the Big Publishers’ suing the Internet Archive. Glyn points out how Big Academic Publishers hijacked the shift towards open access to benefit their bottom line, while pointing out that diamond open access shows that we can move away from the academic publishing business. He recalls how Big Record Labels went on a rampage, suing grandmothers and children, neglecting the opportunity to give consumers what they wanted. Glyn describes Big Content’s push for copyright enforcement, from the French three strikes mechanism to the SOPA and ACTA battles, while emphasising how copyright laws got skewed towards Big Content. He talks about the failures surrounding the EU Copyright Directive and the looming dangers of upload filters. He further highlights how copyright no longer promotes culture but harms it, and how it’s about protecting Big Content, not creators. Glyn concludes by reflecting on a possible way forward: building on creators’ true fans.

📌Time Stamp ⏲️[00:00] Intro ⏲️[01:05] Walled Culture: Digital copyright going wrong ⏲️[03:51] Copyright vs. the Internet: Fundamentally incompatible ⏲️[06:44] Who gives a toss about copyright: In an online world you should ⏲️[08:27] Copyright absurdities - Part 1: Big Content vs the visually impaired ⏲️[10:26] Copyright absurdities - Part 2: Big Content vs Project Gutenberg & Google Books ⏲️[13:31] Digital Rights Management (DRM): Big content putting the shackles on libraries ⏲️[15:33] Big Publishers suing the Internet Archive ⏲️[17:58] Big Academic Publishers & open access: One step forward, two steps back ⏲️[21:55] Diamond open access: Moving away from the academic publishing business ⏲️[24:55] Preprints: More eyeballs scrutinising academic research ⏲️[26:40] Big Record Labels on a rampage: Suing grandmothers & children ⏲️[30:52] People pay: If you offer them what they want on fair terms ⏲️[34:24] Big Content’s push for Copyright enforcement: From three strikes to SOPA and ACTA ⏲️[39:06] The impact of copyright on our digital lives ⏲️[40:05] Copyright laws: Skewed towards Big Content ⏲️[44:17] The EU Copyright Directive: How not to bring copyright into the digital age ⏲️[45:12] The EU Copyright Directive: No freedom of panorama ⏲️[46:58] The EU Copyright Directive upload filters: It’s going to be bad ⏲️[52:00] Stopping preservation: Copyright no longer promotes culture but harms it ⏲️[55:35] Busting copyright’s creator myth: It’s about protecting Big Content ⏲️[57:51] The power of true fans

📌Guest of this Episode 🎙️ Glyn Moody Editor of the Walled Culture project and author of Walled Culture - the Book 🌐 Book: https://walledculture.org/the-book/ 🐦 Twitter: https://twitter.com/glynmoody 🌐 Diaspora: https://joindiaspora.com/people/4cfe755c2c1743364f000890 🌐 Mastodon: https://mastodon.social/@glynmoody

Mike Masnick explores the intersection of technology, innovation, policy, law, civil liberties, and economics, being the founder & editor of the popular Techdirt blog, as well as the founder of the Silicon Valley think tank, the Copia Institute.

He notably talks about Techdirt’s creation, how copyright puts up barriers to information flows and hinders economic growth, the concepts of abundance and scarcity in a digital world, and how copyright’s original intent got lost to the detriment of the public domain. Mike looks at how opportunities for new business models arose that helped create a ‘flywheel of support’ for creators, whilst observing that copyright made creators vulnerable to exploitation by big content. He looks back at the impact the SOPA/PIPA fight made, and the powerful Internet blackout linked to the protests against these Bills. Mike explains his thinking behind the ‘Protocols, Not Platforms: A Technological Approach to Free Speech’ essay he wrote for the Knight First Amendment Institute. He also briefly talks about the EU’s new digital rulebook. Finally, he reflects on the idea that the NFT space, once the hype, nonsense and craziness have moved away, could help stimulate the thinking about how to actually support artists in creative and clever ways that make sense for everybody and that align the incentives much better.

📌Time Stamp ⏲️[00:00] Intro ⏲️[01:47] Techdirt’s creation: copyright putting up barriers to information flows ⏲️[05:07] From Thomas Jefferson’s thinking to copyright hindering economic growth ⏲️[11:10] Copyright’s original intent got lost to the detriment of the public domain ⏲️[15:47] Abundance and scarcity in a digital world ⏲️[19:55] Creating a ‘flywheel of support’ for creators: opportunities for new business models ⏲️[24:14] Copyright made creators vulnerable to exploitation by big content ⏲️[26:54] The SOPA/PIPA battle put the breaks on the ‘clockwork-like expansion’ of copyright law ⏲️[32:33] How activism drove the Internet blackout in protest of SOPA/PIPA ⏲️[37:02] The SOPA fight put the breaks on term extensions ⏲️[40:55] The thinking behind the ‘Protocols, Not Platforms: A Technological Approach to Free Speech’ essay ⏲️[49:27] The EU’s new digital rulebook: portability vs interoperability ⏲️[52:30] Reflecting on the NFT space’s potential value for creators

📌Guest of this Episode 🎙️Mike Masnick Founder & Editor of Techdirt (https://www.techdirt.com) 🌐 https://www.techdirt.com/user/mmasnick | https://www.linkedin.com/in/mmasnick   🐦 https://twitter.com/mmasnick | https://twitter.com/techdirt 🌐  Check Mike's essay “Protocols, Not Platforms: A Technological Approach to Free Speech” : https://knightcolumbia.org/content/protocols-not-platforms-a-technological-approach-to-free-speech

James ‘Jamie’ Love is Director of Knowledge Ecology International. His training is in economics and finance, and work focuses on the production, management and access to knowledge resources, as well as aspects of competition policy. The current focus is on the financing of research and development, intellectual property rights, prices for and access to new drugs, vaccines and other medical technologies, as well as related topics for other knowledge goods, including data, software, other information protected by copyright or related rights, and proposals to expand the production of knowledge as a public good. James advises UN agencies, national governments, international and regional intergovernmental organisations and public health NGOs, and is the author of a number of articles and monographs on innovation and intellectual property rights.

He talks about access to information being one of the emerging issues of his generation, and how he got wrapped-up in the idea of making access to information more equal and less expensive for everyone. James recalls the failed push for a database Treaty at the World Intellectual Property Organization (WIPO), and the EU’s stubbornness by adopting the Database Directive, and how this, and term extensions, are textbook examples of the ‘copyright ratchet.’ He highlights the dangers of things creeping into international trade agreements, which can tie up politicians' hands to change course. James touches on the WTO debates on vaccines in relation to the pandemic. He shares first-hand insights on the WIPO Marrakesh Treaty on access to published works for blind and visually impaired persons, including the many attempts to push back against it. James warns of the continuous push for a WIPO Broadcasting Treaty, and the pressure exerted by rights holders on policymakers. Finally, he concludes by observing how the lengthy negotiations on a Broadcasting Treaty, now ongoing for 25 years, has worn out the opposition against it, as priorities shift to other things.

📌Time Stamp ⏲️[00:00] Intro ⏲️[01:55] How a growing interest in data-related issues let to a broader focus on IPRs ⏲️[11:55] The failed push for a WIPO Database Treaty ⏲️[19:18] The EU’s stubbornness by adopting the Database Directive ⏲️[20:30] The ‘copyright ratchet’ ⏲️[21:03] The dangers of things creeping into international trade agreements ⏲️[26:23] The WTO debates on vaccines in relation to the pandemic ⏲️[32:50] The road towards the WIPO Marrakesh Treaty ⏲️[41:36] The strong opposition against the WIPO Marrakesh Treaty ⏲️[48:32] Lobbyists scaring the ‘bejesus’ out of corporate clients ⏲️[51:04] The broad ratification of the WIPO Marrakesh Treaty ⏲️[52:21] Pushing back against a WIPO Broadcasting Treaty for 25 years ⏲️[01:00:38] Final thoughts

📌Guest of this Episode 🎙️James Love Director of Knowledge Ecology International (https://www.keionline.org) 🌐 https://www.keionline.org/jamie 🐦 https://twitter.com/jamie_love

Jean-Sébastien Caux is Professor in theoretical condensed matter physics at the University of Amsterdam. A Canadian citizen, he obtained his PhD in Oxford, was postdoctoral Fellow in All Souls, and moved to the Netherlands in 2003. Besides his research activities, he is actively involved in the reform of scientific publishing. He is the founder, implementer and current chairman of open access publication portal SciPost. Jean-Sébastien reflects on the current state of play of the scientific publishing landscape and copyright’s role. He talks about the open access movement and the major hurdles or speed bumps ahead. Jean-Sébastien unravels how his personal frustrations led to the creation of SciPost and discusses the effort’s long term sustainability. He makes a plea to change the institutional mindset and move towards Diamond Open Access.  Jean-Sébastien calls for academic rebellion and gives a word of warning about the next can of worms: publishers’ surveillance operations. Finally, he concludes by encouraging his fellow academics to educate themselves about copyright and the academic publishing machine.

📌Time Stamp ⏲️[00:00] Intro ⏲️[01:39] The current state of play of the scientific publishing landscape and copyright’s role ⏲️[06:18] The open access movement and the major hurdles or speed bumps ahead ⏲️[13:05] The story behind the SciPost publishing infrastructure ⏲️[20:10] Ensuring SciPost’s long term sustainability ⏲️[26:56] A plea to change the institutional mindset and move towards Diamond Open Access ⏲️[32:50] Calling for academic rebellion and a word of warning about the next can of worms: publishers’ surveillance operations ⏲️[38:47] Hitting the ‘Wall’ ⏲️[41:15] Final thoughts

📌Guest of this Episode 🎙️Jean-Sébastien Caux Professor in theoretical condensed matter physics at the University of Amsterdam Founder of SciPost 🌐https://jscaux.org 🐦https://twitter.com/jscaux

Catherine Stihler OBE was appointed CEO of Creative Commons, in August 2020, a non-profit organisation that helps overcome legal obstacles to advance better sharing of knowledge and creativity to address the world’s pressing challenges. She has been an international champion for openness as a legislator and practitioner for over 20 years. She was a member of the European Parliament for Scotland representing the Labour Party. At the European Parliament, she became one of Scotland’s longest-serving and most respected legislators. Prior to joining Creative Commons, she served as the CEO of the Open Knowledge Foundation. Catherine reflects on this trajectory that led her to Creative Commons and the lessons learned from the EU Copyright Directive adoption. She talks about the growing importance of Creative Commons licences and the importance of various ongoing legislative developments (e.g. AI, disinformation). She highlights the value of Creative Commons for creativity and knowledge sharing. Finally, throughout the episode she emphasises the need for the community, from libraries to civil society organisations, that are seeking a progressive copyright reform to unite and stand together in order to ensure their voice is heard by policymakers.

📌Time Stamp ⏲️[00:00] Intro ⏲️[01:46] The road to joining Creative Commons ⏲️[09:54] Lessons learned from the EU Copyright Directive adoption ⏲️[16:26] The growing importance of Creative Commons licences ⏲️[22:14] Ongoing legislative developments and their importance ⏲️[27:51] The value of Creative Commons for creativity and knowledge sharing ⏲️[34:45] Hitting the ‘Wall’ ⏲️[38:47] Final thoughts

📌Guest of this Episode 🎙️Catherine Stihler  CEO of Creative Commons and former CEO of the Open Knowledge Foundation. She represented Scotland in the European Parliament for 20 years https://creativecommons.org/author/catherine https://uk.linkedin.com/in/catherine-stihler-a7b83711 https://twitter.com/c_stihler

Marc Rees est journaliste et rédacteur en chef de Next INpact, le site français traitant de tout ce qui est numérique, y compris les commentaires sur les questions actuelles de droit d'auteur. Il se spécialise en droit des nouvelles technologies, dont communication, LCEN, surveillance, données personnelles, et droit d’auteur. Marc est connu comme l’un des meilleurs commentateurs du droit d'auteur, dans le monde francophone. Sur notre podcast, il explique la stratégie de la France de mettre les droits d'auteur au premier plan. Il couvre le rôle de la Présidence Français dans les négociations du Digital Service Act (DSA). Marc réfléchit sur la création de l’Hadopi. Il parle passionnément à propos de la redevance copie privée et les aberrations qu'elle crée. Finalement, Marc souligne l'importance des utilisateurs dans les débats numériques et discute la responsabilité des intermédiaires techniques.

📌Time Stamp

⏲️[00:00] Intro ⏲️[02:15] La stratégie de la France de mettre les droits d'auteur au premier plan ⏲️[06:26] Le rôle de la Présidence Français dans les négociations du Digital Service Act (DSA) ⏲️[11:47] De la conception de l’Hadopi au nouveau super régulateur ARCOM ⏲️[19:25] La redevance copie privée est devenu une aberration économique, environnementale et sociale ⏲️[33:15] Réconcilier le droits d’auteur avec l’ère numérique: tenir comptes des utilisateurs ⏲️[36:36] La responsabilité des intermédiaires techniques: l’Article 17 de la Directive du droit d’auteur et le blocage de Russia Today et Spoutnik

📌Invité dans cet épisode 🎙️Marc Rees | Rédacteur en chef chez Next INpact.com

https://twitter.com/reesmarc

https://twitter.com/nextinpact 

https://www.nextinpact.com/ 

Katharine Trendacosta is Associate Director of Policy and Activism at the Electronic Frontier Foundation (EFF). Her areas of expertise are competition, broadband access, intellectual property, net neutrality, fair use, free speech online, and intermediary liability. She is the former managing editor of science fiction and science website io9, and spent many years writing about technology policy and pop culture for various publications. Katharine notably talks about the good and the bad of the DMCA and the issues surrounding upload filters. She reflects on why the SOPA-PIPA debate mattered and how the underlying issues still linger. Katharine recalls how fanfiction sparked her interest in copyright and shares her hopes to see more smaller platforms pop-up as alternative avenues for creators and users.

📌Time Stamp ⏲️[00:00] Intro ⏲️[02:14] Revisiting the US DMCA after 20 years, looking at Sections 512 and 1201 on limited liability and anti-circumvention ⏲️[10:17] The detrimental impact of upload filters ⏲️[19:27] Upload filters’ anti-competitive nature ⏲️[23:39] Big Content & Big Tech ⏲️[28:45] Reminding politicians of the SOPA/PIPA debacle ⏲️[37:40] Hitting the ‘Wall’ ⏲️[40:47] Final thoughts

📌 Relevant Links ☑️Unfiltered: How YouTube’s ‘Content ID’ Helps Shape What We See Online (https://www.eff.org/wp/unfiltered-how-youtubes-content-id-discourages-fair-use-and-dictates-what-we-see-online) ☑️Robots Have No Place Filtering Creative Content, EFF Tells U.S. Copyright Office (https://www.eff.org/deeplinks/2022/02/robots-have-no-place-filtering-creative-content-eff-tells-us-copyright-office) ☑️It’s Copyright Week 2022: Ten Years Later, How Has SOPA/PIPA Shaped Online Copyright Enforcement? (https://www.eff.org/deeplinks/2022/01/its-copyright-week-2022-ten-years-later-how-has-sopapipa-shaped-online-copyright) ☑️When It Comes to Antitrust, It’s All Connected (https://www.eff.org/deeplinks/2021/08/when-it-comes-antitrust-its-all-connected)

📌Guest of this Episode 🎙️Katharine Trendacosta Associate Director of Policy and Activism at Electronic Frontier Foundation https://twitter.com/k_trendacosta https://www.eff.org