Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.
Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.
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I haven't investigated completely but it appears that all the offered downloads are in PDF format without any DRM or other electronic encumbrances. (One can argue that PDF isn't as good as text, for any number of reasons, but that's a separate issue.)
Generally I have a lot of respect for Richard Posner. The word "brilliant" gets thrown around casually a lot, but I really do think Posner verges on brilliance. You don't get 40 books published by writing nonsense or wasting readers' time. Let's settle for saying he's a very smart, very widely influential judge.
The problems with newspapers are nothing new; what's new (and excuse my impertinence WRONG) here is one of the remedies Judge Posner suggests. After a long discussion of the costs and economics of newspaper publication, here's his final sentence:
Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.
No. Just no. Linking is the fundamental technology of all hypertexts, of which the World Wide Web is by far the biggest and most popular. One of the reasons it is so large and so widely used is the ease with which information can be accessed, transferred, exercised, repurposed, and reused. The fact that this fundamental technology is in conflict with the page-centric advertisement+content revenue model is an indication that the ad model is flawed, not that we should erect further legal barricades to try and cripple the very thing the Web does best.
To be very clear, I have a large personal stake in this game. Copyfight, like so many other blogs, is built around the notion of taking things said elsewhere, pointing to them, and building on them. Since all writing in the US is born copyrighted, there would be a large blow to almost every blog if this kind of restriction were passed. It is a stupid idea.
The fact that it was put in as a final sentence in the blog posting makes me think Judge Posner hasn't really thought this one through. The comments in the blog are neither edited nor responded to, sadly, since several of the non-spam commenters take Posner to task over this nonsense.
The Jammie Thomas retrial was expected (at least by people on the reasonable side of the fence) to produce some kind of verdict that would indicate the general public's (as represented by the jury) disdain for asking someone to pay $222,000 for sharing 24 songs. To be fair, she probably wasn't the one who shared the songs, but they were shared from her computer. So she's held responsible. And now, facing a $1.9 million judgment, she's in an even worse position. Clearly the jury of her peers didn't share the common online opinion, which lends credence to the Cartel's claims that the general public support their position. As the Cartel's lawyers have noted, they did not ask for a specific penalty in their suit - it was the jury that came up with the damages number.
Another widely discussed theory, discussed in depth by Greg Sandoval for CNET, is that Jammie Thomas could protect herself from any payment by filing for bankruptcy. This theory rests on a recent Ninth Circuit decision that held there are different standards for civil and bankruptcy cases. In a civil case, such as this one, the standard for finding against the defendant is that the act had to be "willful" - essentially the RIAA have shown that the file-sharing was not an accident. However, in bankruptcy court they would be required to show that the act was "willful and malicious" in order to prevent the debt from being wiped away.
My opinion is that they'll settle for some token amount. I can't imagine either side wanting this fight drawn out further in the courts or in the press. They are, as several pundits have pointed out, fighting about the past. And I'm guessing both sides would much rather put that past behind them.
The French constitution contains clauses promoting a presumption of innocence and the Council determined that the legislation - which had already passed in Parliament (WAKE UP YOU GUYS YOU'RE BEING OWNED) - violated those clauses as well as infringing on French Constitutional guarantees of free speech.
The legislation already had to be revised once but passed on a second go. Now it's unclear whether the plan will be scrapped or whether Sarkozy will modify the law as the Council described and resubmit it.
Steampunk is a pop-culture phenomenon this decade. There are books, music, and cons devoted to this movement. Since it has many roots in updated Victorian-era items it seems like fertile ground for bringing out something people from that time would have recognized as a novel, but updated to modern technological sensibilities.
Steampunk Tales is also drawing from the pulp-fiction publishing form that flourished in America in the mid-20th century. Pulp magazines back then focused on specialized audiences (westerns, horror, romance, detective stories, and science fiction were all popular pulp genres) and delivered a monthly dose of short fictions from a wide variety of authors.
In this case they're promising to deliver monthly story collections for a modest USD 2 price tag, much lower than the magazine-stand prices for the few specialty mags that survive to this day. Back in March of this year I noted that the economics of print paper distribution are horrible and getting worse, compared to e-book economics. The iPod is probably not an idea e-book platform, but it's much more widely available than even the popular Kindle and for reading short fiction it may serve well enough.
One of the things that steampunk celebrates is the "maker" culture (see for example Make Magazine) and in that spirit I celebrate Steampunk Tales' attempt to make a cross-century mash-up work. (Too bad I don't own an iPhone to read it myself.)
In addition to Vikings, reindeer, and cute blonde girls, Sweden can now say it has a Pirate member of the European Parliament. According to Veronica Ek's story for Reuters (here reprinted by the Globe and Mail) about seven percent of the Swedish electorate cast ballots that sent a member of the Pirate Party into office.
The party has been in existence for some time, largely known as a single-issue copyright deregulation group. However, the recent conviction of four operators of The Pirate Bay torrent-linking site has drawn attention to the party and its platform, though the site and the party are not linked. That platform calls for copyright deregulation, abolition of the patent system, and a reduction in Internet surveillance.
The book, currently called Interfictions 2 is a follow-on to their successful publication in 2007 of a work of collected short fictions that exist between the large spaces of current mass-market genre definitions.
In the blog entry introducing the book, they break down the costs line by line and ask for sponsorship. You can sponsor an individual story, cover the online costs for the electronic companion to the printed stories, or cover the expenses associated with the production of the physical work itself (printing, typesetting, etc.). You can even cover the costs associated with sending out review copies. Since the IAF is set up as a US 501(c)3 organization your contribution is entirely tax deductible.
As I've discussed before, I don't think the sponsorship (or more elegantly 'patron of the arts') model is widely scalable. It's not going to replace mass market publication anytime soon. However, it seems pretty well suited to this kind of thing - a specific project, with a strongly dedicated audience. So go sponsor something already!
(I think I'll sponsor sending out review copies because I believe that publicity creates a virtuous circle. Thus this blog.)
Why is this funny? Well, the reports (plural, three of them) that had to be withdrawn were supposed to be giving the Ottawa government advice on how to update Canadian copyright laws. So, yes, the Board copied its copyright reports. But wait, it gets better. Who did they copy from? Apparently, they copied from a Cartel lobby group, the International Intellectual Property Alliance.
It's entirely possible that Canada's laws could use an update. And it's further possible that the Conference Board has some good ideas for updates. But this kind of intellectual black eye isn't helping anything other than my schadenfreude quotient. Maybe this will serve as an object lesson for them.
And by "free" we mean both "Creative Commons licensed for free use" and "free of Cartel propaganda." Nice combo. Here are some excerpts from the press release they sent:
Last week, the Copyright Alliance Education Foundation -- a nonprofit mouthpiece for the entertainment and software industries -- unveiled plans to spread its protectionist ideas to the nation's schools and libraries through the distribution of a curriculum titled "Think First, Copy Later." "Think First, Copy Later" and other intimidating educational materials were produced by the MPAA, RIAA, Business Software Alliance, and other content holders to scare students into believing that making copies is wrong.
Apparently "Just Say No" is still taken. Bummer.
[C]reators and innovators of tomorrow don't need more intimidation. What they need is solid, accurate information that will help them make smart choices about how to use new technologies. That's why EFF is launching the free, Creative Commons-licensed "Teaching Copyright" curriculum and website to help educators explore copyright issues in their classrooms. These materials encourage students to discover their legal rights and responsibilities — including how to make full and fair use of technology that is revolutionizing learning and the exchange of information.
The Hype Machine - an aggregator for blog discussions about music. Mostly it's a "play in browser" type experience but they link back to the original blog entries, which often have download links. In addition there are sometimes links for purchasing things you hear from iTunes or Amazon. I've been feeding my mash-up head seriously today. I'm on there as drwex.
No, I'm not talking about modern payola practices in radio again. I haven't bothered to keep up with it in the past few years but I'm convinced that it still goes on.
The National Association of Broadcasters is out in force against this, calling it a "performance tax." They're in a tight spot already, given that radio advertising has taken a nosedive comparable to advertising in newspapers. It's not helping the Cartel's case that at least 50% of the new fees will go to improving their corporate bottom lines and not to artists at all. The NAB hasn't hesitated to point out how the labels have screwed artists in the past, either.
Expect a major floor fight and heavy lobbying by both sides on this one. Given the current state of the US economy I don't see how the broadcasters can afford to lose this one.
I suppose it would be interesting to hear the Cartel explain why, exactly, a program that maintains the DVD's inherent anti-copy features is a bad thing, other than "we didn't design it." But beyond abstract fancy I doubt this will amount to much of anything.
I don't know anything other than what I've read on the Web about this Interstitial Arts Foundation - anyone have any contact or experience with them?
My first response is that, no, interstitial doesn't really describe what I was after - I'm looking for something that is more broad-brush and definitive of new forms, not something trying to fit itself into the spaces between existing forms. Still, this might be an interesting event. If you go, please send me a trip report.
And if so, does that mean we should wave bye-bye or should we attempt to re-imagine how large chunks of idea will be communicated from (or between) an author and a mass literate audience? Personally I think we ought to do that latter, regardless of whether or not we think the book will survive. As I've argued before, new art forms are emerging and creators need to embrace and extend the opportunities available to them. Existing writers should continue to break out new experiments, and O'Reilly points out ways that his print press has done some of that.
There is some question as to whether these new things are "books" as we've come to understand them, but let's leave aside labeling for the moment and consider them as a form of creative expression. To make these expressions in new media requires new skills - O'Reilly talks about things like "crowdsourcing" for example - and audiences will need to find ways to acquire, appreciate, and respond to these new forms.
So, no, I don't think Tim (or any one organization) can re-invent something as fundamental as the book. We have over a thousand years of evolution of that art form already in hand and that millenium won't be toppled quickly. But collectively, yes, I do believe that we can employ new technologies to re-invent the book. Right now I'm watching my boys delve into comics and devour graphic novels the way I did as a child. I'm certain that what they give to their children as "books" will be different than what I'm passing down to them, but it will be something additional, not a full replacement.
I've been pursuing various links in my continuing quest to find easy ways to pay for music I like. I came across RCRD LBL.com which appears to be a curated online community for artists, labels, and fans to share and talk about music. They're obviously aiming at the hipper, more online-centric crowd; for example, you can follow them on Twitter and their "Genres" page is a tag cloud that I'd bet is derived by aggregating tags artists put on the uploaded content.
Currently, all their online content - including the legal downloads - is ad-supported. Much of it is distributed under Creative Commons licenses that allow people to reuse and remix the tracks for non-commercial purposes. They seem to be operating on a sponsorship model, rather than an impulse purchse model, so it's not precisely what I was looking for but it's clearly a very close neighbor.
Obvously ad-based/sponsored sites do better by getting more traffic so in a way I am 'paying' for music I found there by promoting them and I hope getting my dear readers to go to the site and continue spreading the word.
No, not this blog. We continue to trundle on in our small way. The lack of outraged emails telling me what an idiot I am is evidence that we're no longer much noticed. Copyfight issues, though. Those are everywhere. Two examples came across my radar this week.
1. Apparently, noted chef Emeril Lagasse made a stink on the show Good Morning America by claiming that one of its hosts "stole" a recipe of his. For, of all things, Dorito casserole. No, I'm not making this up. Seriously. As the blog post notes, you can't copyright a simple list of ingredients, any more than you can copyright most other simple lists. There needs to be some measure of creativity for the work to be considered an original item, and thus worthy of copyright protection.
Recipes are routinely traded (stolen) in the industry. Chefs visit, or send people to visit, competitors' places. Or they just out and out talk with each other about what they do, and as people will do they get ideas sparked by hearing or tasting or smelling or even just seeing what ingredients someone else has stocked their kitchen with.
It's true that there are new and innovative things coming out of kitchens all over the world, many from master chefs who are pushing the boundaries. One option for an innovator is to stay ahead of the competition by continuously improving. Another is to seek legal protection for innovations. But, really, Dorito casserole?
WoW allows people to write and load mods that change the game, even to the extent of replacing the whole default UI. Some mods are banned, but none of them are supported. To write a mod is a volunteer effort, and distributing a popular mod can incur significant hosting and bandwidth costs. To defray these costs, some mod writers ask for donations, or host their mods on distribution sites such as Curse Gaming. These sites make back their costs by showing people paid advertisements when they visit to download mods.
A heavy mod user can easily be running 50-200 mods and dependent components. And each time the game is updated there's a good chance that the mods need to be updated, too. So players return to the mod hosting sites over and over again. That's good for the hosting sites, particularly if they're getting paid by the page-view, but a really serious pain for players who don't want to be visiting mod sites - they just want to play the game.
There have been several attempts to make the process of maintaining and updating mods easier for players. For a while there was a program called WoW Ace Updater (WAU) which had some flaws but generally came close to the "push a button and update my mods" philosophy. But WAU couldn't survive its own popularity (the more people use you, the more it costs you) and got bought out by Curse, which re-issued it as their own client. Of course, that client sent you to Curse to get files and showed you ads that brought revenue to Curse. Plus it was buggy as hell and only ran on PCs (World of Warcraft runs on Macs and Linux machines as well).
To make matters worse, several mod sites have been the target of hacker attacks. Usually the hackers attempt to subvert one or more pages on the mod site to inject malicious code. When players visit these hacked pages, an exploit in the browser may be used to place a trojan on the player's machine. That trojan then dowloads further malicious code that may turn that PC into part of a zombie farm, or install a keylogger that permits the player's World of Warcraft account to be stolen and emptied.
With all that background, there was a large pent-up demand for a non-browser, one-button easy way to keep a mod library up to date. Enter Wowmatrix. This is a mod updater that runs on all platforms WoW runs on, installs with a simple download and provides quick and easy updating of mods. Heaven, right?
Well, not if you're Curse. Wowmatrix didn't necessarily ask permission to redistribute mods - after all, it's not hosting anything - just downloading publicly provided files. Many mods are released with GPL or other free licensing. But some are not. And since Wowmatrix isn't showing you Curse's ads, people using it are not bringing revenue to Curse even as they download files hosted on Curse's servers.
So about a week ago, without warning, Curse started blocking Wowmatrix. This was timed to coincide with a big release of a Warcraft update and of course a lot of activity in the mod community. That timing didn't improve things, and the boards are full of people sniping back and forth at each other.
Recently, Wowmatrix appears to have taken something of a conciliatory tone. When you try to update a Curse mod they put up a notice inside the app informing you that Curse is blocking them and indicating that if the code is available elsewhere under a free-to-use license then they'll re-point their client to get it that way. Failing that, it's laborious point-and-clicking all over again.
Perhaps Wowmatrix learned something from the Pirate Bay conviction (about which I have nothing new to say, sorry). Or perhaps they really are just trying to make things better for the player community. It's not clear to me that what they're doing is a violation of copyright, so much as it is contrary to the terms of use under which Curse and its mod writers are making their mods available.
The Social Science Research Network is offering free introductions to material within its now Cognitive Science Network (CSN). CSN will provide "a worldwide, online community for research in all areas of cognitive science." They will have seven e-Journals in various cog-sci areas and are offering free subscriptions until October 2009, and then $40 after that.
Once upon a very long ago I wanted to hear a very specific song. I was at work, and was making a point to a coworker about how certain male and female voices went together. This duet was part of the point I was making, but I didn't have it at hand. Had someone said "Give me a buck and I'll give you a copy of that song you can play on your computer" I would have cheerfully handed over my USD and been pleased at the exchange.
Instead, one of my coworkers pointed me at Napster, and sure enough I had a copy of the song on my hard drive minutes later. I also had a large bucket of other music, none of which I paid for. Much of it was illegal, but not terribly interesting. I did, however, find that I could get tons of remixes, covers, and DJ mixes this way. That was interesting and I spent most of my time downloading things I couldn't have bought in almost any store.
Fast forward ten years. It's now 2009 and I still love this kind of thing. A friend recently pointed me to 8Tracks, one of many sites where DJs and folk can post mixes. Their motto, "a simple, legal way for people to share and discover music through an online mix" is just exactly what I want. Like anything new, it's very hit-or-miss. But sometimes it turns up real gems. Like La Roux - In For The Kill (Skream's Let's Get Ravey Mix). Go ahead and listen, I'll wait.
In many ways this is exactly what I like about remixes - Skream has stripped out La Roux's beautiful and eerie vocals and laid them over some interesting beats and vibrato thrums. Gone are the insipid pop bits you get with the original. I want to own this specific mix legally and, ideally, have my money compensate the artists. But once again, there's just no way to do that. I can come up with two or three ways to get the tune illegally, but none that involve the kind of "I like that I want to buy it" commercial transaction.
Maybe it's a uniquely American conceit of mine to think that I should be allowed to purchase things I like. Maybe neither the artist nor the remixer intend for this track to be sold. But set aside that specific idea; much as I respect the art-as-performance-only, I think it's pretty commonly the case that musicians and DJs want to be compensated for their work.
So why the hell is it still impossible for me to do just that?
Nobody debates that Jay Baitler, an executive VP at Staples, sent out a mass email giving information about the causes for firing Alan S. Noonan. The ostensible purpose of the email was to remind employees to follow certain Staples procedures. But the cause for action was the inclusion in the email of details about the cause for firing that Noonan claims are defamatory.
Initially these claims were dismissed because MA law, like that of the US, provides "an absolute defense to a defamation action" based on the truth of the statement. This principle was established for the US in a 1964 SCOTUS decision known as New York Times Co. v. Sullivan. The situation is a bit complicated in the States because not only is there Federal law about defamation but many states also have relevant clauses in their constitutions and state law books. Even so, US District Court Judge Morris E. Lasker determined in his dismissal of Noonan's claim that MA law and US law were consonant on this matter.
However, Noonan appealed to the First Circuit, which recently reversed an initial upholding and instead allowed a claim to go forward for "actual malice" based on an obscure 1902 Mass. law. The three-judge panel reasoned that Noonan might be able to convince a jury that Baitler met a standard of ill will provided for in the law. Since Staples is a private company and Baitler is not himself a public figure, the argument is that different standards apply. In particular, the Sullivan decision refers to public officials and Noonan's lawyer is claiming that this decision does not have First Amendment implications.
That argument isn't convincing many people, and may still be reversed if the Circuit agrees to review the decision en banc. Meanwhile, news organizations are left scratching their heads over whether they can publish this story or whether that act of publication could itself bring a suit for "ill will."
Regardless of whether or not a paper or blogger could win such a suit, the mere possibility that it could be filed might chill publication of information, not least of all reporting on the incident itself. With so many newspapers teetering on the financial edge, the last thing they need is to spend thousands more on lawyers' fees.
The purpose of these lies of omission was to remove possible roadblocks to approval of a new drug (Seroquel) that was set to replace an expiring old drug. I find it inconceivable that the series of events reported here is unique. This is almost certainly indicative of a pattern of behavior that, in very real terms, put the acquisition of intellectual property - and the riches that flowed from that - above the health and safety of everyone.
It's ironic to me that I'm writing this note almost exactly four years after my first impassioned note about IP killing people. Seems we're slower to learn than I had hoped.
These days lots of people send me links to things they think are interesting and Copyfight-able material. I don't want to discourage people, but I can't possibly blog every one. Cory Doctorow I am not.
But I did want to use this video of interesting images from Google Earth to jump off into a bigger thought or more like a set of related questions. I'm sure there are dozens or hundreds of such videos, and this one combines many individual interesting 'finds' that people have discovered and posted. This one isn't unique but it's got me thinking.
It seems like we've got several things going on here, and we lack language for it. I feel like this is a new art form, but I don't know how to talk about it, much less what to call it. When someone makes art that's only visible from space because he KNOWS satellites will photograph it, and then someone else puts the image into a montage of deliberate art and found objects and natural-things-that-look-like-they-were-made-as-art, and someone else sets that montage to music with dramatic timing, gorgeous camera swoops, and almost narrative pauses built in... what do we call that?
And isn't there something essential to this art in that it's placed on the net for free distribution? Wouldn't it be something different if we saw it in a movie theater, confined to our seats? Would it be different yet again if it was played on the wall of a club and we were encouraged to dance to it?
I have a lot of questions, and no answers. But I'm convinced that if this isn't being taught in design schools right now then they're doing their students a disservice.
This is billed as pure tech, but its use in tracking material, possibly copyrighted material, are obvious: TinEye, a reverse-image search.
The idea is that you upload a picture to it and it tells you where else on the Web it has seen that picture. One obvious use would be sourcing material - I have this picture, who might it have come from - and another would be finding people who are using your images. Imagine a widget that would let you feed a full Flickr stream or Picasa album to it, rather than trying to upload one image at a time...
Enough people have sent me this one that I feel obliged to blog it, though I'm not sure I have anything new or original to say: "Through You" is a massive mash-up of clips from films found on YouTube. It makes for some interesting music, and the author goes to some lengths to give complete credits. Seven tracks - effectively a complete album. Pretty impressive.
First, though, the Post has it completely right - newspapers screwed the pooch and are killing themselves as a result. As good a paper as the Rocky Mountain News was - and by all accounts it was first class - it could not change the basic fact that people are no longer relying on newspapers for... well, "news." As the social concept of what it means to be up to date and informed changes, the medium has to change. Evolve or die.
Which is not to say he's recommending that the Times do such a thing; he's just pointing out the economics of newspaper delivery are heavily weighted against the current model and continuing to push it is pretty likely to fail. See, for example, his column from today on "The Next 9 Newspapers To Die."
A new independent film documentary is starting to make the rounds of small theaters and informal showings. Who Does She Think She Is? explores the particular conjunction of female artistry and motherhood, particularly in modern American society.
As a group, women are under-represented in American galleries, shows, and in teaching about American art. Even moreso, women artists who are also mothers are all but invisible.
I have not yet seen the film, but it's been getting good responses from friends who have. Check it out, leave a comment with your impression.
Chris Crum over at WebProNews has posted a Q-and-A with LimeWire's George Searle, who has a couple comments on ongoing partnerships and attempts to move beyond the trench warfare with the Cartel. (Reminder: I work for a company that is technically related to LimeWire, but have no contacts or interest in that bit of the business.)
To back up a bit: Blizzard makes World of Warcraft the insanely popular online multiplayer fantasy game(*).
MDY makes and sells a program that plays the game automatically (called a "bot," for "robot"). Many players resent bots and botters, and Blizzard has waged war against them for years. However, the bots are popular. Apparently over 100,000 copies of MDY's bot, called Glider, have been sold at $35 a pop.
The question raised in this case, which was just decided in an Arizona court, are whether Glider violates the DMCA by "circumventing protections" as Blizzard claims. It appears that all sides agree that Glider does not decrypt anything, hack anything, nor break any security. It uses the legitimate credentials of the player.
Timothy Lee, at ars technica, calls this "DMCA hairsplitting" and I think he's right. I further think he is correct in pointing out that Judge Campbell has made a decision with some bad implications. This gets a bit detailed, so bear with me...
Campbell drew a distinction between components of the game, thus: the bits stored on disk (called "literal elements") and the bits encountered by the game player during the course of the game (called "non-literal elements"). Part of the World of Warcraft client ensemble is a program called Warden that attempts to control how the client operates and can be accessed while it's running. Campbell decided that Glider did not violate the DMCA with respect to the literal elements, but because it attempted to evade or circumvent detection by Warden while the game was running, it did violate the DMCA with repect to the non-literal bits. Confused yet?
MDY's argument rested on the thesis that these non-literal bits were not protectable by the DMCA because they don't constitute a separate copyrighted work. If that's true it doesn't matter what interaction Glider and Warden have. Campbell rejected MDY's contention that the non-literal bits were too ephemeral, since they could be captured by recording software. That seems reasonable - all kinds of ephemera have been ruled copyrightable for various reasons. More interesting to me is MDY's contention that the ephemera weren't solely Blizzard's work. The ephemera are created in the interaction of the game and its many players.
This is significant as it describes pretty much every "Web 2.0" content-sharing site such as Facebook or LiveJournal. In these sites, too, the named software company provides a vehicle or environment into which users place their content interactively. For example, LiveJournal strongly resembles a blogging system in which individual registered users write postings on which other people add comments. Attempting to apply Campbell's logic to the blogosphere would be troubling at best.
Judge Campbell also agreed with Blizzard that violation of the game's EULA meant that the gamers no longer had a license to play the game. This is extremely troubling in that the logical extension of this reasoning is that any violation of a EULA involves forfeiting your license to that software. I don't know about you, dear reader, but I'm quite certain I've violated more than a few EULAs and am probably in violation of some right now. I don't think that means I give up my licenses to those software programs, nor do I think it means I'm infringing the copyrights of those programs - or at least I don't think it should mean that.
Finally, there's an additional twist in that Cambell ruled that MDY's founder Michael Donnelly, who wrote the Glider bot, was also personally liable for the infringement because he should have known that his and his firm's actions were illegal. Donnelly's good faith argument was rejected.
(*) Your humble author is himself a confessed WoW addict, who has spent more than a few hours battling botters and other in-game cheats. I'm not at all impartial on the topic, just in case you had any illusions.
OK, enough with the funny stuff. The new Obama administration is shaping up to be a disaster for Copyfighters everywhere. In particular the new Department of Justice is stacked with lawyers who've been on the wrong side of copyright and intellectual property lawsuits for the last eight years.
Then there's the #2 man, currently slated to be David Ogden. If that name only rings a faint bell it's because you have to cast your mind back to Eldred v Ashcroft, the argument on whether retroactive copyright term extensions were legal. Sitting over there on Ashcroft's side? That's Mr. Odgen. For extra-bonus ick points, Ogden also was involved in defending the heinous COPA legislation, fortunately now dead and buried (but not forgotten).
The capper on this line-up of suspicious characters is Donald Verrilli, now up for Associate Deputy Attorney General. This specimen of legal acumen is front and center in the Cartel's jihad, having appeared for Viacom when it sued YouTube, for the RIAA against Jammie Thomas, single mother. And if we peer back a little farther, we find Verrilli's dirty fingerprints on MGM v Grokster.
So what does all this portend? Well, if you ask Julian Sanchez over at Portfolio.com he thinks it's a tempest in a teapot. He thinks they'll all behave and recuse themselves properly and just because a lawyer consistently goes to bat for a certain kind of client doesn't mean much about their professional views. Lawyers are paid guns, after all, and the Cartel's side has consistently paid well.
Declan McCullagh, over at CNET, is much less sanguine, pointing out that many of these cases are still ongoing (e.g. big lawsuits against YouTube) and further noting that Vice President Biden showed a great deal of hostility toward free use when he was in the Senate.
I'm on Declan's side. To the extent that someone has to set the tone of this administration in dealing with intellectual property matters, it's looking pretty grim.
This is what we do now - we parody it on YouTube. There are also apparently remixes of the remix, using the audio track with different visuals. I'll leave it to you to find the one with Legos.
Jeph starts from the blog post by Neil Swaab that paints online comic artists as merchandisers first and artists second. It's true that most people who are living as Web comic artists do so not by selling the comic itself, but by selling associated merchandise.
Swaab seems to be making a bucket of broad assertions, each of which Jeph deals with in turn. Jeph points out that a comic artist can easily farm out the merchandising and online store maintenance, probably at less headache than dealing with print contracts and syndication details.
Further, he asserts that QC is making enough from advertising to cover his server and office costs. This is interesting in that ad revenue has definitely declined in the past year or more, and QC is far from a low volume site. Indeed, more traffic should help an ad-supported site, but it does also drive up bandwidth and server costs.
The majority of the post deals with the ideas of making Web comics pay-subscription, sponsored, and donation-driven. All of these are familiar ideas to Copyfight readers and there are a few examples of each of these models being attempted in the online comics domain. In my observation most places use a combination of these methods, but mainly subsist on merchandising.
Which is not, per se, bad, but points out once again that we're not making progress in figuring out good replicable business models for this stuff. What Jeph seems to appreciate most is his fans, and the need for artists who want to make it in this medium to adapt. Amen.
Shirkey has a few specifics and a few generalities in his "Year Ahead in the Media" piece on guardian.co.uk. Nothing hugely surprising - more newspapers will stop printing, magazines (specifically specialty publications) belong online, DRM for television shows is a disaster, and print-on-demand for books will flourish.
A friend of mine who's a fairly rabid Nine Inch Nails fan noted that Reznor has recently put out a lot of raw video footage from the current tour onto BitTorrent. This is in addition to anyone's ability to get a legal download of the entire new album just by visiting nin.com and giving a working email address.
Back in '07 (I have to stop writing 'last year' every time I go back into the archives) I noted that Reznor was urging people to "steal some more". My guess is that he got tired of waiting and wants to see what people will make with this material.
Everyone else is writing about Apple's iTunes music store going DRM-free. Which is, I admit, an interesting move. It's also interesting that they're moving to a 3-tier pricing scheme, after about six years of the Cartel nagging them to break the 99-cents-for-anything barrier.
But like I said, everyone's writing about that. So instead I want to blog about something else. I want to blog about how Roger Ebert, who makes no small amount of money himself from copyrighted works, ended up writing
Don't the copyright owners realize they are contributing to the destruction of their property by removing it from knowledge?
Right, so the thing that makes this Copyfight material is that this indie film, which delighted one of the country's best-known film critics, can't be distributed because it uses eighty-year-old recordings. According to Paley's own blog entry the original request from the copyright holders was for $220,000. That may not be much for a major motion picture, but for a self-made indie film it's a show-stopper.
As questioncopyright puts it, this is ridiculous. Even at the now-reduced price of $50,000 the owners of the copyrights are "forcing artists to make creative choices based on licensing concerns rather than on their artistic vision." This is not hyperbole - as Paley describes in the interview there, the specific music she chose was integral to the film's production. Animation sequences were created around specific songs, and that's part of what Ebert found attractive.
By any measure of artistic judgement, Paley has created a wonderful work. But she's never going to be able to turn that work into a commercial success. Because even after she finishes paying the 50k (on top of $10,000 in lawyer fees so far) she'd be facing a fee schedule that would in effect make sales of the film a losing proposition. By her calculations if she somehow managed to take in $1,000,000 in theatrical receipts she might get between $30,000 and $80,000. Which brings me back around to Ebert's original point - by being greedy and grasping, the copyright holders are destroying their own property.
My guess is that it's safe to say you've never heard (or even heard of) Annette Hanshaw. She was, apparently, quite a remarkable singer some 80-90 years ago. But she's gone and largely forgotten. Now imagine if a film built around her songs had been distributed, and had gotten even moderately popular - would you regard that as a sales opportunity? A chance for a revival, a reissue perhaps? I certainly would. Remember what Belushi and Ackroyd did for much better-known blues artists by using their music in the Blues Brothers films?
To her credit, Paley isn't willing to give up. She's put together a distribution plan that revolves around creating a limited number of promotional copies and then uploading those to archive.org under some kind of Creative Commons or similar license. From there, she's going to make money by giving it away, and profiting from related things like donations, sponsorships, ancillary products. Shades of Cory Doctorow's "Giving away my books is selling the hell out of them."
Paley admits she's probably never going to make back the money she's invested in this project. She's actively looking for sponsors, legal help, and hoping that all the various rights holders will agree to the 50K plan and that she'll be able at least to repay the loans she's taking out to make this all happen.
The PDF of Judge Feess' ruling on the motions for summary judgment by Fox and Warner Brothers can be found online.
I was surprised at how readable-to-a-layperson the document is. It appears that Fox's claim is nothing new, that an option for buying out Fox's rights existed for years and was never exercised, and finally contains a very interesting footnote on testimony not given and why a certain lawyer's advice may have been detrimental.
But I had not considered that the ease of finding a cheap used copy would have that big of an impact on publishing and book retailing. Used book search engines are easy to find, there's Ebay/Half.com, and even Amazon puts competing reseller links on the same pages as its new book listing. So with all that, why would anyone pay retail?
It's not too far from the question that the music business faced back at the end of the 90s when Napster boomed - given that you could get music for free, why buy? The record labels have spent most of the last decade struggling to come up with a version of what I call the "bottled water" solution - given that we have some of the world's highest quality tap water essentially for free, why do we pay so much for water in bottles? Somehow we've been convinced it's worth paying for, and there's no reason to think that consumers of music, or books, couldn't be similarly convinced.
Along the way I'd also like to be convinced of the original thesis of the column. The idea that book reselling is killing new book publishing is an interesting theory, but sadly it's put forth here without any supporting data.
