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.
Roger Ebert has a column up this week with his top 6 reasons why movie theater attendance is plummeting. Hint: piracy isn't on the list, though the ease of getting movies in the home via services like Netflix is.
No, once again it's the same deadly duo: high prices and bad customer experience. Prices on both tickets and concessions are sky-high and people seem not willing to pay for it, given that they're likely to have to sit in a crappy theater with an aisle down the middle, deal with obnoxious teenagers and compulsive texters, and have their in-theater options restricted because indie and non-US films aren't getting wide distribution.
In my comments on Dan Gillmor's "Swindle" rant I remarked that I thought e-book buyers were not particularly price-sensitive because they're locked in. For movies that's less and less true and so we're seeing price sensitivity. I wonder, also, how much of this is due to the crappy economy. If people are making good wages and not afraid of losing their job or their house they may not care so much if they pay an extra $3-5 per e-book or per movie. But that's not where we are and I wonder if people who are unhappy with the pricing are expressing part of the larger economic malaise.
(h/t Boingboing where I first saw a pointer to Ebert's column.)
The immediate focus of his ire is a blogger posting under the name of Janet on dearauthor.com, and in particular her entry called "The Entitled Reader". Janet, in her turn, seems to be peeved at being called 'entitled' and to feel that readers - particularly readers in the SF/F genre - have relationships with the authors through which they express their feelings about the authors' works including the prices of such works. Scalzi, in his turn, assembles both his own personal experience and extensive remarks from Patrick Nielsen Hayden of Tor publishing to defend the proposition that publishers have relationships with readers and do think of readers as their customers and not just retailers.
Having read all of this, and having some experience myself dealing with publishers and authors (and a lot of experience dealing with fans) I think both parties are right to some degree but are talking past each other because they're focused on the issue of the relationship and not on what it means.
To wit: Scalzi and Hayden are correct that SF/F publishers have made serious efforts in the past couple of decades to have their editors connect directly with readers. Janet is correct that - even though many major SF imprints exist within the Big 6 publishers - the actions of the people who work within the SF divisions are often different from and sometimes in direct contradiction to public statements by C-level executives at those publishers.
But the missed point in here? E-book prices are a swindle, and readers are noticing it. Readers who care will complain and they will complain to the most obvious and public faces they can find. As Janet correctly points out, some publishers make it very hard to provide interactive feedback. At best many of them offer just a generic contact form and do their best to give an impersonal corporate Web presence. Hayden is spot-on in saying that some editors have gone headfirst into the social media swimpool and give a very human and interactive experience - but doesn't follow the thread to realizing that the corporate experience feels impersonal and disconnected by comparison.
So while Scalzi continues to be correct that it is not the authors' fault that e-book prices jumped 30-50% overnight he is missing the point of why Janet and Gillmor and others are making these impassioned public complaints. Readers are not stupid people, and readers know when they're being ripped off. People who feel ripped off complain and if your response to complaints is "the doctor is not in" then you're missing the point. It may be misplaced, but I hear the readers' ongoing complaints to authors about prices as a plea for help.
Shocking news: someone is right on the Internet. In fact, two someones are right on the Internet here, but nobody seems to be understanding why it matters.
In today's installment of his "The Big Idea" series, John Scalzi notes that e-books give some authors an opportunity to update older works that they couldn't otherwise revise. When nobody's willing to print an updated edition (it's much cheaper just to reprint), you can still make changes you feel are important for the electronic edition.
Oh look it's been 20 whole days since I wrote something about the ungodly mess that is e-books this year. TL;DR version: nothing has changed, physical books are still better, you can go now.
The result is, as Gillmor says, "a terrible deal for the customer." Whether that terrible deal will lead more people to think twice before they buy e-books is still up in the air. Gillmor says it has changed his behavior, so maybe that's so. But I tend to think that once people have taken the plunge and bought an e-book device they want to keep feeding that habit. Ferpetessakes people pay $3 and up for a measly ringtone. I think the demand here is not particularly price-sensitive and in that respect publishers' greed isn't going to have much impact on adoption. Sales figures for December e-book/physical book purchasing should be out in the next couple of weeks and we'll see whether Gillmor or I am correct.
Nearly every science fiction writer I've hung out with or listened to has asserted that his or her business was not predicting the future. They might write about it, but the purpose of writing about the future is not, usually, to say "this is going to happen" (as if they were fortune tellers gazing into crystal balls) but rather to say "here's an interesting projection of what might happen." That's true, but it's incomplete.
Sometimes writing about the future is a way of warning people "If This Goes On..." or saying "Your way of looking at the world is not broad enough; we see things differently." Writers who want to do prediction often do so outside of their fiction. Famously, Arthur C. Clarke wrote about geostationary communications satellites, but he did so in a 1945 scientific article. I was pleased to play a small part in Bruce Sterling's Viridian Design Movement an artistic online commune dedicated to discussion of what a globally warmed world would be like. (*)
So it's fair to say that a writer doesn't write to predict. But SF writers do predict, and sometimes they predict with real clarity, bringing together threads that are loose in the wind and saying "here, this is pointing to THAT." In this category I give you Cory Doctorow's speech "The Coming War on General Purpose Computation", given at the recent Chaos Computer Congress in Berlin.
It's about the first half of the recording's hour. Go ahead and watch it. I'll wait...
Done already? If you're not convinced that he's right I probably can't add much. His recapitulation of how we got into stupid copyright wars, and how copyright wars are going to morph into a war on general computers is both scary and, I fear, scarily accurate. Like much good prediction it's not far-future and believing it doesn't require any leaps of faith. You just need to perceive what's been going on, and going wrong, in the last decade or so, and realize it's not going to get better, it's not going to end peacefully; on the contrary, it's only going to take off. A few weeks ago I suggested that 2012 would see a revolution in drug manufacture; what Doctorow is saying is that the next decade will see a revolution in every industry, from biotech to automotive to medical devices and anything else you can think of.
Doctorow ends on an optimistic note. I hope he's right.
(*) Don't believe me? Google "Wexelblat Disaster". Yes, that's me. I was moderately appalled to discover that was my Wikipedia legacy.
Last time I touched on this issue I noted that we still needed alternative strategies to manage IP around life-saving medicines. Doctors Without Borders/MSF has been working on a plan to try and break the logjam, called a "patent pool". The concept of the patent pool is simple: rather than asking any one pharma company to forego its profits while its competitors don't play along, the pool asks all companies with patents on relevant medicines to contribute their patents to licensing arrangements in the pool. The pool's managers license the patents as a portfolio, and distribute any returns to the companies that contributed.
So far so good. In this case, the MSF pool is focused on older HIV-treating medicines. Today's regimen for advanced HIV care involves a so-called "cocktail" of drugs. These drugs are often patented by separate companies so buying or licensing them is complex. Additionally, its hard to get patients to take all of a cocktail regularly and in the proper dosage. Care would be more effective if the cocktail could be administered as one pill containing all the relevant ingredients. But making such a pill requires licensing all the patented medicines. Enter the patent pool. Countries like India and Brazil have the large-scale high-quality manufacturing facilities to make single-dose medicines at the scale needed, if only they can get the license.
So MSF has been going to the patent owners asking them to contribute their patents to the pool. These are patents, generally, on older generation drugs, not the latest and greatest which remain out of price range even in a pool strategy. But even the older drugs would be life-saving for tens of thousands of people.
Which brings us to today's sad update from MSF. In this bulletin they note that despite two years of effort to get public pressure on, Johnson and Johnson have refused to allow their patents on three necessary older-generation AIDS drugs to be licensed through the pool. Merry Christmas, J&J. I hope you can sleep well, somehow, despite knowing how many people you're leaving to die.
(Usual full disclosure: I am a strong personal believer in the work MSF does and a regular, if minor, financial donor.)
On his blog "Whatever" John Scalzi declares he's tired of his readers griping about the prices of e-books. On the one hand I sympathize with him - it's not like authors have any say in what you get charged for an e-book. And he's right in that having an e-book reader doesn't make you a special snowflake. On the other hand, the fact that a large number of readers are complaining is probably an early warning sign and the response probably should be "Here's who to complain to" rather than "Shut up." I seem to recall a time not too long ago when lots of people complained about the then sky-high prices of audio CDs...
Audioporn Central, my current favorite new-music site, pointed to a new music business site just entering "artist alpha" with the goal of legitimizing sales of DJ sets, remixes, and the like called "Legitmix". The theory is interesting but I can't see it working on a practical scale. Still, let's take a look.
The idea is that the creator who uses sampled music (DJ, producer, cover artist, etc) would not sell or distribute their work directly. Instead they'd go to Legitmix and upload their work, then identify the samples used in it. Legitmix encodes the work into a distributable file that the creator can then sell or give away as desired. When the listener wants to decode the file for enjoyment they have to demonstrate ownership of the sampled sources somehow; if not, they can buy the requisite samples through Legitmix's store. Once you own the components, the theory goes, you own a free-and-clear new composite work.
In a universe where everyone cooperates, this might work for simple mash-ups. Some of these are simple A|B tracks containing only two songs. But a good mash contains a lot more and let's not even talk about the hundreds of samples in a full-length DJ set. The amount of work involved on the part of every listener to demonstrate ownership of, or acquire rights to, every sample in your average hour-long set is nearly astronomical. The end user experience of this is going to be awful.
Of course, we also live in a universe where people don't just cooperate easily - if we did, the damned Copyright wars would've been over years ago. Some people don't want their stuff sampled. Some people want to approve the samples' uses. Some stuff doesn't have an easy license-granting authority in the first place (see "orphan works"). Sometimes you can get a license for the base song, but not necessarily the specific performance that was sampled. Et cetera et cetera. The number and amount of legal and contractual complications entailed is enough to stun even a Cartel lawyers, never mind some random start-up company.
What Legitmix is doing is employing fancy technology to shift the burden of licensing work from the creator to the listener. That means you multiply the amount of work by N where N is your number of listeners. Eww. Now there is some attraction to that, in that you might want to price your sampling fees based in part on the listenership. If someone samples you and nobody listens to that sample you might care less than if 100,000 people listen to it. But really, that's a detail. The complexity explosion remains mind-boggling.
I'm reminded of the situations that led to patent portfolio licensing. If you stop and think about it, companies with lots of patents could probably make more money by licensing individual patents to individual partners. Partners would pay only for the patents they needed, and everyone would be happy, right? Except it's so insanely complicated to keep track of all that it turns out to be simpler just to cross-license the entire patent portfolio. Sure, you pay for stuff you don't need but the amount of time and hassle (and lawyer fees) you save with a blanket license more than makes up for it.
Now substitute "sample" for "patent" in the above paragraph and you'll see why I think Legitmix is a non-starter. I give them an "A for effort" and good on them for trying to think creatively about solving the sample-licensing problem but this one fails the basic smell test.
BT alleges that Google's services - everything from Maps to Google+ - violate half a dozen patents that BT owns. FOSS includes a scribd link to the complaint and pointers to the six patents in the USPTO system. The patents themselves are old, and dense, and very broadly written. My extremely un-lawyerly opinion is that Google is indeed violating the patents as written, which means that either they pay up or they get the patents narrowed/invalidated. Given my fundamental believe that most software patents are overbroad crap issued without even a semblance of respect for prior art the choice for Google boils down to what would be less expensive: license or invalidation.
Neither is pleasant or cheap and the situation is muddled by the fact that BT is (according to Mueller) the fifth big company to sue Google over IP violations. Google thus has to consider the effect that settling any one of the suits would have on the others.
Jenny Shank at Mediashift has a column that starts off with the interesting title "The Trouble With Gifting an E-Book". She's right: e-books make much worse presents than regular books, but sadly she misses many of the important reasons why. Shank's column is a lovely bit of nostalgia about the personalization of gifts and the feel of the physical book. All true and good, but really kind of missing the mark. Let me tell you why e-books are lousy gifts:
Books are one-size-fits-all. Unless your reader needs a large-print or Braille edition, a book is a book is a book. The e-book for your iPad friend is not the e-book for your Kindle friend is not the e-book for your Kindle Fire friend is not the e-book for your Nook friend even if they all have the same name. The near-complete lack of interoperability between these devices is stupid beyond belief. Of course, you can get someone a gift card but we're talking about gifting books here.
Books are actual gifts. You give a book, and the recipient owns it. He or she can share it with friends, donate it to a library (unless imbeciles get their way with destroying first-sale doctrine), pass it on to their kids, and so on. When you gift an e-book, you're just letting someone rent it and that rental can be modified or yanked back by the e-book publisher or distributor at will and often without notice.
Book gifting is simple. Find a book, buy it, wrap it, send it along or hand it over. E-book buying remains such a complex mess that there are actually whole Web sites devoted to helping people through the convoluted processes that each seller has established for getting e-book.
My family has long had a tradition of special holiday presents delivered at year's end by "The Book Fairy." I don't think the fairy's going electronic any time soon.
Once again I'll be doing a couple of intellectual property panels at the annual Arisia science fiction convention in Boston next month. At least one of them will also feature Richard Stallman. The con is January 13 - 16, 2012 at the Westin Boston Waterfront. Plus we have Phil and Kaja Foglio as Guests of Honor this year, so that should be pretty awesome right there.
I still don't have a final schedule for when the Copyfight-relevant panels are taking place. I'll post that once it comes out.
It's been too long since I propped the work that Cory Doctorow has been doing at tracking some of the most egregious excesses of the Copyright Wars.
First up, you might want to check into the philosophical backgrounds for which I recommend his series of columns for Locus Online's "Perspectives" series. Locus is the go-to 'zine for SF/F writers and serious literary fans. Cory's been writing good thoughtful philosophy pieces there this year, of which I have two clear favorites: "Why Should Anyone Care?" questioning why anyone (who reads or writes SF/F particularly) care about copyright anymore; and "It's Time To Stop Talking About Copyright". Here he is talking about not just the utter failure of copyright law over the past decade and a half but the really crucial issue of how what starts as copyright policy inevitably becomes Internet policy and that just makes everything worse.
With that as background you should check out a recent series of Cory posts over at Boingboing where he's been dogging what I think is probably the most frustrating and sorely under-reported story of the 2011 Copyright Wars: the ways in which the Cartel have continued to abuse the system, particularly the DMCA's takedown provisions. I wrote some months ago about the crucial importance of the DMCA's Safe Harbor provisions but the Cartel is exploiting its way around those provisions by abusing the poorly implemented notice-and-takedown procedures of sites like YouTube.
Oh, and there's a good chance the US Government (Senate) may get its fingers into this pie: according to Boingboing and Ars Technica, Senator Ron Wyden has promised to get up the nose of the Immigration and Customs Enforcement division of the DHS over domains that were seized based on (shaky) claims of copyright infringement.
Remember back in August I noted a class-action suit around alleged e-book pricing collusion? Well now the feds are involved. Yesterday the L.A. Times reported that the US DOJ is investigating "potentially unfair pricing practices" by the big five book publishers. DOJ joins Europe's cops and some states' attorneys general who've all said they are investigating.
Investigation is a long way from indictment, however, and I suspect we won't see indictments come out of this. If the big publishers feel the heat they'll probably enter into some kind of negotiated settlement promising to play fair. And the prices of e-books will remain sky high.
I mean, seriously, we're in roughly the 12th or so year of the Copyright Wars and this is not even vaguely news. I should go back in the Copyfight archives and dig up my old postings like the first time the RIAA used the cops (L.A. at that time) or the first time I noted that the Cartel had taken over DOJ more or less wholesale. But I can't be arsed to do it - the song remains the same year in and year out and I'm tired of it.
Still, props to Techdirt for its extensive and meticulous documentation of this latest manifestation of the disaster.
Vaughan-Nicols is pretty damned clear: Apple is engaged in a world-wide war on Samsung and Android in an attempt to drive them out of, and monopolize, the tablet space. There are at least nineteen related lawsuits happening in nine different countries as Apple tries to use its patent portfolio to bludgeon competition out of the marketplace. No wonder I was confused.
Vaughan-Nicols notes that this massive campaign is starting to draw regulatory notice, which is not bad but kind of a case of the horse already having left the barn. If the problem is the overuse of overbroad patents to monopolize a marketplace then the answer isn't to retroactively fight those patents; the answer is to tighten up the patent-issuing system so that crappy overbroad patents stop getting issued in the first place.
I promise I'll talk about drugs in a minute, but first I want to meta-introspect...
There are a lot of tabs I open in my Copyfight window. Most of them don't make it to posts because they're not well-enough developed for me to say something about, or because someone else is saying all I want to say about something. For example FOSSPatents has been dogging the Apple-Motorola patent suits story extensively. I confess I don't understand what Apple is up to here and nobody else seems to have anything clear to say about it.
Then there are stories that never quite materialize, despite my hopes that they will. Earlier this year, news went out that some of the most popular (blockbuster big-selling) drugs were going to go off-patent this year. For much of the past two decades the drug industry has made huge profits off these blockbuster drugs - hundreds of billions - and patents have played a key role in protecting those profits. Patents prevent other companies from copying the drug and selling it cheaper or making a generic version. Drug companies have developed an elaborate rolling shell game of patenting in which they continue to protect their drugs by developing variants, improvements or new delivery mechanisms for the drug that can then be patented. A drug originally marketed (and patent-protected) as an injectable may then be re-patented and further protected in pill form or inhaler form.
The problem with this is that sometimes these medicines are essential, life-saving treatments and intellectual property ends up killing people. This is usually justified by the huge expenditures necessary to create and test a drug as well as shepherding it through the FDA approval process. The figures I've seen for that range from USD 800 million up to 2 billion dollars. Of course, I've also seen figures claiming that drug company spending on advertising and promotion dwarfs their spending on R&D, by up to 6:1. So I'm not wholly sympathetic to big drug companies crying poverty.
At around the same time the stories about drug patents ending hit there was an interesting item on my local PBS station, WBUR, about one-person drug companies. The idea here was that these companies - often a sole proprietorship of someone who had spent decades working at a larger pharma company - could provide a much cheaper way to get new drugs into the pipeline. You still need a big organization to run the large trial studies that the FDA requires, but the process of drug design, modeling, and small-scale testing can be done by renting lab space and equipment at about 1/10th the cost of a big company doing it.
Sadly, despite the promise of new ideas and cheaper ways to get things done, nothing much has materialized on this front. So the story sat in my unfinished file for months and probably would have been dumped if not for two related items that came through my news stream recently. The first is a nice little five-minute piece from PBS News Hour on the ways in which companies have dragged out the last bits of life from their patent-protected drugs and also the multi-billion dollar question: is the era of blockbusters over?
If it's true that drug companies can no longer depend on huge-selling drugs to prop up their profits then they may have no choice but to diversify and to farm out production steps to cheaper alternatives. 2011 didn't see any big changes, but I'm now wondering if 2012 may be the first year of an upheaval in the drug business such as we've seen this year in the publishing business.
At its heart a patent is a government-granted monopoly. It's a quid pro quo that's so fundamental it's even in the Constitution - you do these useful things and in return you get all these legal protections. But there's nothing to say we couldn't also have another quid pro quo, and that's what Sanders is proposing. Drug companies would forego their monopoly protection (which comes with no guarantee of income) in return for guaranteed income with no monopoly. Specifically, Sanders is proposing the government fund a $3 billion/year pool of prize money that would be outright awarded to innovators. Interestingly for us open-access types, Sanders is also proposing that at least 5% of that money be set aside for "any individual, business or nonprofit organization that openly shared information, data, materials or technology that contributed in a positive way to the development of new drugs."
In the current economic climate and political deathlock I doubt Sanders' proposal will go anywhere, but I am pleased to see at least some people thinking creatively about new ways to handle intellectual property in tricky circumstances.
And to my few readers who made it this far, thank you for suffering through with me. I'll try to make my posts more coherent as a general rule.
More than ever, publishing is not a fire-and-forget activity. This blog entry from Neil Gaiman contains a cautionary tale of an author and a bad e-book experience. He even manages to avoid pimping his own audiobook line too much.
The canonical discussion of access-control mechanisms such as paywalls and DRM is that people ought to pay for stuff. That's not a wholly ridiculous idea; I've repeatedly asserted that creative people ought to get paid for what they do.
The problem? How do you know who has and who has not paid, particularly when you present your content in multiple ways on multiple platforms? This was brought to my attention by a column written by usability expert Jakob Neilsen.
Neilsen critiques the Wall Street Journal's iPhone app for its confusing user interface. In particular, the app appears to be asking people to pay twice for WSJ content. This causes the app to get horrible reviews. Neilsen points out that a fairly simple redesign could fix this particular app's problems, but I see this as symptomatic of a bigger issue.
By paywalling its content, the WSJ has taken on the burden of keeping track of who has and who has not paid. And, sensibly enough, the human being who pays for the content feels like she ought to be able to access the content she paid for, whether it's on her desktop or her mobile device. In fact, what is happening is that the WSJ, through poorly thought-out design, is transferring this burden to the end users who are then pissed off by being asked to pay twice for the same content.
Entities (people, corporations) who lock up their content behind automated mechanisms need to start paying attention to this, or they're going to be dealing with a lot more pissed-off customers. Paywalls already cut your subscriber base significantly (90% or more from figures I've seen). How much does it cost you to alienate that last 10%?
