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.
Joyce Hatto was a pianist of some note who retired from performing back in 1976, to fight cancer. She lived a good long time after that retirement and enjoyed a degree of notoriety in the last decade of her life due to the release of a wide variety of new recordings on her husband William Barrington-Coupe's tiny label Concert Artist. As the story in Gramophone puts it
To love Hatto recordings was to be in the know, a true piano aficionado who didn't need the hype of a major label's marketing spend to recognise a good, a great, thing when they heard it.
There were doubters all along, but the recent break in the story seems to have come from a listener who put a "Hatto" CD into his iTunes, which identified it not as Hatto but as a Liszt recording by a wholly different pianist. More such reports followed.
Gramophone followed up, first by asking a human classical expert to listen to the two. When that expert claimed no difference they sent the two discs to an audiologist, who found them identical. The story linked above has more details, including what appears to be a deliberate digital manipulation of at least one track to conceal its origins.
In some ways this is not a new story - people plagiarize and have for centuries. This caught my attention because of the involvement of iTunes and the role of digital "fingerprints" in the automatic identification of works.
Inside you'll find two articles I can't possibly do justice to in a blog posting. Both are brilliant examinations of intellectual property, use/reuse, and repurposing of creative content. Both come from perspectives we don't hear often enough - the creators and users of the material.
The first piece is called "On the Rights of Molotov Man: Appropriation and the art of context" by Joy Garnett and Susan Meiselas. This item centers on a particular image - a Sandinista revolutionary preparing to throw a molotov cocktail. You can see a copy of the image on Harold Pinter's Web site.
In discussing the image Joy Garnett describes how she paints from photographs, and how her painting from this photograph went on to be used. The painting from the photo appeared in an exhibition, questions were raised about the appropriateness of use, letters from lawyers were sent, license fees were demanded, and the story hit the blogs. Garnett gives her perspective and raises questions on the issues of control around what was essentially a news or documentary photograph. Nobody "posed" for that picture - it captured a true event as real people went about overthrowing a dictator.
Then follows a response from Meiselas. She gives history and context for the photograph, shows how it became an emblem for the Sandinistas and was appropriated by them for political purposes, and finally introduces us to the actual person in the picture, whom she tracked down many years after the original photograph.
This pairing of creative views on use and appropriation is brief and poignant. I found myself sympathizing with both artists and with the notion that creative control means something as well as freedom to (re)interpret creatively.
Harper's then follows up with a stunning piece by author Jonathan Lethem called "The Ecstasy of Influence." The piece is subtitled "a plagiarism" in much the way that some things are subtitled "a novel" or similar self-descriptives. Lethem's essay is long and wide-ranging, covering many arguments that will be familiar to Copyfight readers. He touches on appropriation, literary theory, influence, and has no lack of harsh words for Disney and their attempts to create a one-way gated cultural community in which they take popular common stories and create perpetually locked content that cannot then be reused by anyone else.
Lethem's thesis is that every act of creation is actually an act of appropriation - it's just that some appropriations are more explicit than others. Even in the non-explicit cases, Lethem argues, nobody creates in a vacuum. We create out of cultural traditions and within genres that bring strong influences, whether it's science fiction novels or country music. Attempts to draw bright lines and say that one side of the line is "original creation" and the other side is "impermissible copying" are doomed and wrong from the outset. Lethem argues that modern copyright law is distorting the purpose under which the Constitution sets out the rights. In particular, copyright is supposed to exist in the US to promote useful progress. The Constitution says nothing about guaranteeing income or compensation for effort. Copyright, for a limited term, to promote progress - a general social good. Nothing to do with individual welfare, providing for authors' children unto the Nth generation, or any of that.
Lethem takes particular delight in cases where appropriation transcends traditional boundaries - he gives the example of receiving a copy of his own novel Gun, with Occasional Music that had been cut into the shape of an actual gun by a modern artist. Lethem is erudite and wide-thinking and persuasive, if somewhat scattered and not extremely coherent.
Or is he? Remember that bit about "a plagiarism?" After you've finished reading the essay, Lethem lifts the curtain and lets you see the gearing underneath. Almost all of the essay is plagiarized - copied from other sources. Lethem dissects his own collage for us, giving precise boundaries and explicit sourcing for each piece of the pastiche.
Finally, he goes meta and gives a quick overview of the notion of a collage text, of which this essay is an example. It's brilliant (can I say that enough times?) and eye-opening. In a way it's a radical view, to reject entirely the notion of original creation. In another way, it's a well-explored literary theory that has been known in academic circles for decades but that has not penetrated the Copyfight discussion in any significant way.
The blog has posted a letter appearntly leaked from the RIAA. In this letter the Cartel enforcement arm attempts to cajole ISPs into maintaining subscriber ISP records for 180 days. To make its lawsuits go more smoothly, of course. In exchange for shutting the hell up and turning over data promptly the ISP's customers get a promise of a $1000 discount for payment prior to lawsuit being filed. It's not at all clear to me why any sane ISP would sign on to this deal since it means more work and more risk for them, not to mention the exposure of being counter-sued by irate customers for turning over records.
You can read a brief summary on the lawyer's blog, and extensive commentary on the various links below the entry. The gist is still the same - the RIAA wants more suits, faster suits, more settlements, and fewer embarrassing publicity gaffes. I can't exactly blame them for wanting these things, but I'd rather they realized that they haven't made any difference in the past 7+ years of suing their customers and they're not going to make a difference if they spend another 77 years suing their customers.
That enough initials for you? The reasoning behind the decision is long and complicated, and no one is completely happy with the situation. If you want all the details, go listen to the BBC's Backstage podcast explaining the situation. What it seems to boil down to is nobody wanting to, or being able to, drain the swamp of ambiguous rights, partials ownerships, and uncertain licensings that surround the BBC's massive content and performance archives.
In an attempt to build an umbrella over the whole mess that would permit some kind of content exposure without massive groundwork, the BBC put out a new "iPlayer" software that requires the person to have Microsoft DRM. They make the argument that they evaluated a number of open standards and found nothing that met their needs. So given a choice between stasis and a limited solution they picked this limited one.
If there's a bright spot in this story, it's that the BBC Trust, which oversees the various Beeb operations, has only permitted this as a temporary solution and "...will require the BBC Executive to adopt a platform-agnostic approach within a reasonable timeframe." Let's hope that open alternatives can meet the eventual challenge.
The US House passed a bill that would establish a program to educate judges on patent law and procedures as well as allowing cases to be shuffled to judge who opt into the program. The goal is, of course, to have more knowledgeable judges process patent cases faster and more consistently. Certainly the BSA (Big Software... err, Business Software Alliance) sees it that way. However, as ars technica noted, this could just encourage more patent litigation, more patent bullying, and an "in club" of patent lawyers and patent lawyers-turned-judges.
Jobs asserts that if the Cartel would just do this, Apple would love to jump on the bandwagon. He further seems to be awfully naive about the Cartel's efforts to pull in all non-DRMed forms of music. Yes, they sell CDs but they're desperately trying to force people away from them. Jobs apparently has never heard of the "analog hole" and Cartel efforts to cover THAT with DRM. Jobs further seems not to understand why lockouts and permissioning are such a fundamental part of Vista, even while Apple is busy making fun of it. (MOV link)
TiVo revealed the other day that it's offering TV networks and ad agencies a chance to receive second-by- second data about which programs the company's 4.5 million subscribers are watching and, more importantly, which commercials people are skipping.
I don't think I'm particularly prescient but this surprises me not at all. I thought they were already doing it, but I can't find earlier news references. Perhaps I just read speculation and took it as given that yes, if the equipment lets them do that they're going to do it. Color me cynical, but I figure if you give a corporation a way to exploit you then they'll take it as soon as it's profitable to do so.
Oh, wait, TiVo's still swearing (on a metaphorical Bible no less) that it's not actually watching you, the individual identified viewer. They're just doing "random, anonymous" sampling of 20,000 boxes per night. And they promise to strip off all the identifying info. Which they wouldn't have to promise if they weren't downloading it in the first place, right?
I don't believe for a moment that TiVo cares about viewers' archaic notions of privacy. They've just not figured out a sufficiently profitable way to turn over your second-by-second viewing data to a massive data warehouse from which it can be picked at leisure. Being served with an ongoing stream of subpoenas by (over)eager law enforcement officials might in itself be a sufficiently expensive deterrent. But it's not something I'd like to base my privacy on.
My offer to pay someone to build me a MythTV still stands.
The story starts with the hip SF Chronicle online attempting to respond to readers' phoned-in comments. Of course, the volume of comments in any major newspaper is too large to permit individual responses and the Chron comes up with the bright idea to make a podcast out of the recorded commentary so at least readers can hear what each other have to say. So far so good.
Then someone decided to take umbrage at a particular subhead in a Chron news story that used the phrase "pilotless drone." Despite its popularity (about 36,000 hits on Google as of this AM) the phrase really is redundant since "drone" means "unmanned vehicle" in this context. So one could say "pilotless aircraft" or just "drone."
Never one to leave a gauntlet lie, people took up this challenge and.according to this update in the Chronicle, not only can you get this snippet as a ringtone, but there's an entire group on YouTube now dedicated to remixes and music videos.