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.
The blog post mostly seems to be "rah rah electronic journals in math" which is all well and good. Yay electronic journals. But it misses points I thought I'd raised in my first blog post, which I'll try to summarize here:
What do you expect Elsevier to do? For example, asking them to join the forces opposing the abomination that is ACTA would be a good step in showing they understand why their support of SOPA/PIPA was a mistake.
How do you expect a move to publication in electronic journals to impact the all-important tenure and promotion cases that academics must make? I believe it's the tight binding of sci/tech publications to these key career steps that gives companies like Elsevier extraordinary leverage. Until academics themselves work to break those ties I don't think much is going to change.
Franzen is concerned for the physical book. He comes across as not precisely anti-technology/anti-Internet, but as someone who sees the creative writing environment and its output as physical books as somehow separate and better. Scalzi is, shall we say, skeptical. Both make good points and are worth reading.
I am myself conflicted. I live my life online and am constantly connected. But I have also been influenced by Muriel Cooper and her love of typography and the printed medium. Books are beautiful and useful in physical form; I don't want e-books to wipe that out. I want the two to co-exist, as each has its benefits.
There has long been an undercurrent of opposition to the publishing houses that control scientific and technical publication. Unlike other publications that at least nominally pay their contributors, these publishers profit off the free work of researchers, editors, and reviewers - none of whom get paid for their journal work - who are captive to a "publish or perish" ecosystem within academia. The journals are often quite expensive and are sold to libraries in high-priced bundles.
Almost nobody is happy with this arrangement: authors complain that their work is taken and used for someone else's profit; libraries complain that these journals' costs eat up a huge amount of their budgets, which are already tight; publishers complain that they can't make (much) money on this business despite these arrangements.
Even though I'm no longer in the research world I still have many friends and colleagues who are, one of whom sent me a link to "The Cost of Knowledge" petition against Elsevier. The online petition sports over 1100 signatures as of this writing, all active researchers and all pledging not to do more free work for Elsevier unless "they radically change how they operate."
The petition lists three grievances: journal pricing, the practice of forcing libraries to buy large bundles of journals, and Elsevier's corporate support for SOPA/PIPA and similar legislation that is antithetical to free and open information flow. Sadly it doesn't list any specific steps that Elsevier should take that would satisfy the petitioners. As an expression of grievance it's clear, but how Tyler Neylon - the petition organizer - expects things to be different is less clear.
The petition also links to the PolyMath Journal Publishing Reform wiki page, hosted by Michael Nielsen, himself a widely published researcher. The blog page lists no fewer than five separate petitions including "The Cost of Knowledge" all of which are trying to use researcher community people power against the publishers.
Although Nielsen's page lists some successes in getting Elsevier in particular to change its behavior, I am dubious that any of the big sci tech publishers will change their practices. These publishers are just as doomed as every other hardcopy publication in today's world, but they can use their monopoly leverage to stave off that doom for many more years. Asking them to give it up is asking for a form of corporate suicide, which they have no incentive to do. If academics really want things to change then they need to start with their own houses; for example, by changing what gets counted for tenure cases and what weight is given to publication in open and online venues.
I've mentioned the existence of highly respected online specialist communities before. These are places where the top people - as recognized by their peers - go to share and discuss new research ideas. People who are experts within the community know who is contributing good ideas and making a difference in advancing the theory of the field. And I'll bet you it matters not one whit to their tenure cases. Change that, and you stand a chance of breaking the sci/tech publishing stranglehold. Until real action happens on the academic side, petitions remain just symbolic protest.
Copyfight spent a lot of time in 2010 talking about remix culture. But even though the remix has now thoroughly soaked into the social consciousness it still needs legal reforms and exemptions to support it.
The target of the petition is the Copyright Office's existing (but about to expire) exemptions allowing creators to break DVD encryption in order to sample video clips, and also a forward-looking request asking the Office to approve a parallel set of exemptions for "Internet videos" which would include online vids, streamed content, and other content that just happens not to have been burned down to a specific plastic platter.
One item that is included in this petition but that hasn't been talked about much is the importance of this sort of remixing as political statement and for teaching. From the Arab Spring to #Occupy, a tremendous amount of political action and information has been released solely in Internet video form. Anyone who wants to assemble any sort of educational, critical, or political-statement material on these topics will inevitably have to rely on these videos. I think it's extremely important that these forms of education and action not be barred by copyright laws that are lagging the times. I hope you agree and will join me in signing.
Gotta love a guy who doesn't mince words. What Bott and lots of other less-vitriolic writers are up in arms about is Apple's iBooks 2.0. I mentioned this little gem a couple days ago with particular reference to the idea that what Apple's doing might well be antitrust-worthy. That's not what has Bott up in arms, though.
In the first column, Bott dives into the really nitty-gritty of Apple's EULA, pointing out that not only does Apple claim the right to sell whatever iBook you make it also claims the right to prevent you from selling it elsewhere, even if Apple rejects it. Still think using iBooks is a good idea? You're braver than I.
As Bott notes, even if this is a condition on your use of Apple's software it's an unprecedentedly restrictive one. It is as if Adobe claimed you couldn't sell any photograph you processed in Photoshop (except through Adobe). Or if Microsoft claimed you couldn't sell any book you wrote in Word (except through Microsoft). If those examples seem ludicrous on the face of it, that's only because word- and photo-processing software is well established in the marketplace and there are competitors and years of user expectations in place. E-books are a new beast and it looks like Apple wants to own the cow and the milk, in perpetuity.
In the second column, Bott digs back in to describe how Apple is sabotaging not just individual authors' work but the entire ePub (EPUB) standard, which it had previously supported. This one, as he notes, affects not just e-book authors but also publishers and readers.
EPUB is an open format, handled by an organization known as the International Digital Publishing Forum (IDPF). Apple is a member, of course, as are big names in the software industry (Adobe, etc), in graphics (Agfa), and of course dozens of publishers from around the world. EPUB is XML-based and uses key XML concepts like namespaces and references to XML standards as maintained by the W3C.
Bott's column lists several ways in which iBooks 2.0 deviates from (and thus breaks) the standards, including proprietary namespaces, incompatible and non-standard CSS extensions, and critically it defines a new MIME type. Without going into too many grotty details, a MIME type is a way for a data file such as an e-book to tell various processor programs what its contents are. Programs like Web browsers that handle multiple content types (e.g. text, images, flash elements) use MIME types to know what program should be invoked for displaying each bit of the page. A program that knows how to display one MIME type will often reject all others because it doesn't know how to handle them.
So if you have, say, an e-book reader that is expecting to process files of type "application/epub+zip" - which is what the EPUB standard says that ePub books should be, then when it encounters type "application/x-ibooks+zip" it's just not going to display that file. And presto, all your iBooks 2.0 output is no longer viewable on any other reader. That's standards compliance for ya, sure enough. Apple also broke inbound compatibility, in case you care. An EPUB-standard document can't be opened in iBooks 2 either, so if you were thinking about collaborating with another author and passing files around, you better make sure that your partners all have iBooks 2 or you can't share with them.
Last time I closed by noting that e-book authors should probably steer clear of iBooks 2. This time it looks like anyone who is interested in improving the future of e-books should steer clear. C'mon, Apple, this is the kind of anti-standards doublespeak evil we used to bash Microsoft for.
It seems that various scientific and technical publishers are raising objections to the USPTO using their publications for prior-art searching. The PDF lays out the Office's position and policies around fair use. It's actually somewhat complicated but the document does a good job of describing things: In some cases, the Office has subscriptions and other forms of paid access. In others it's making use of public sources, or submissions by applicants. In some cases, the Office is providing copies of this material to applicants as part of office actions such as patent rejections or re-examinations, both of which may rely heavily on prior art such as scientific/technical publication.
The Office claims, I think with good justification, that even in cases where it is providing personal copies of non-licensed literature to applicants it is doing so under a protective umbrella of Fair Use. The PDF lays out the Fair Use justification for these practices and notes other steps the Office has taken to protect copyrights, such as not placing non-licensed material online where it could be arbitrarily copied.
Finally, the Office claims (again, I think with good reason) that it requires applicants to be responsible for copyright protection of materials that they submit to the Office and if applicants make copies or distribute materials that the Office supplied them as part of an action, then it's the applicants who bear the responsibility for this (possibly illegal) copying.
What I can't figure out is why this is an issue in the first place? Isn't one of the biggest problems we have with patents today the craptastic lack of prior art on submissions? Isn't it in everyone's best interest to use the available sci/tech literature to make the best possible prior art decisions? If there was some kind of print-on-demand feature for all sci/tech literature inside the Office I could understand the concern, but who exactly is up in arms over what seems to me to be perfectly normal uses of publications?
Or is it just that Fair Use has gotten so badly thrashed in the past couple decades that people sort of conveniently forget it even exists in statute?
I freely confess that I'm even more ignorant of how the UK regulates copyright than I am about how the US does. They're a signatory to Berne, obviously, and work-for-hire is not legal there. But beyond that I'm pretty ignorant, and I find myself utterly boggled by two stories out of the isles this week.
In the first story, the BBC reports that student Richard O'Dwyer has lost his appeal and is set to be extradited to the United States for copyright infringement. The Beeb has the sense at least to put 'piracy' in quotes because even if O'Dwyer is guilty of everything he's charged with, all he did was provide people with URLs. He hosted no content, uploaded nothing, shared nothing. Since when did putting together a list of URLs become an extraditable offense? And will Google's UK executives be in handcuffs on the next plane? 'Cause I'll bet you a good English pint that every link you can find on O'Dwyer's seized computers and TVShack.net Web site is also listed in Google's search results (and Yahoo! and Bing! and probably a dozen others).
But seriously, folks, what the hell is going on here? The BBC's backgrounder page on extradition points to some controversy about how it's easier to get extradited from the UK to the US than vice versa, but seriously isn't copyright infringement a civil tort? Since when did this get to be an extraditable offense at all?
Then there's the case of the too-similar photographs. Let's say I'm in New York City and there happens to be a traffic accident. I snap a picture of it - the cars are there and here, policeman just so, pedestrians along that side, etc. I publish this photograph and copyright it. But it's a bad intersection and the next year there's another traffic accident at that same place. A witness whips out her cell phone and takes a picture. The two images are substantially similar - major elements, composition, angle, lighting, etc. Despite these similarities I can't say that the woman has violated my copyright, since her photo is an original composition in which major elements resemble mine. Right?
Well, um... In the case as reported by Amateur Photographer in the UK, the company New English Teas has been found to be in violation of a copyright owned by Temple Island Collection (a souvenir maker) on an image of "a red London bus against a black and white background of Big Ben and the Houses of Parliament, with a blank sky". Come again?
In fact if you look at the images side by side, as you can do in this Digital Photography Review story on the case, the photographs have significant differences in terms of angle of the shot, depth of focus and placement of key image elements, and in contextual and background elements. Really, they're similar photographs only when you describe them at a high enough and abstract enough level. And in fact the judge agreed that the two images were not identical, but felt that the visual composition was in fact the copyrighted element here.
Which leads me to ask my expert readers: Is this really a copyrightable element, separate from the copyrightable nature of the photo as a whole? If so, are we really in for the world of hurt I think we're in for? Because, really, there are a lot fewer compositional arrangements than there are photographs and if I can copyright, say, the composition of a rider on an animal mount just how broad of a copyright am I going to hold? Or is this some nonsense peculiar to the UK?
Y Combinator is Paul Graham (and partners') early-stage seed-funding organization. Part angel investor, part venture capital introduction, and part hip techster scene, it often has an impact well beyond the small amounts of capital it invests in early stage companies. Graham is also a respected essayist on the Web in his own right. So when Y Combinator puts up something called "RFS 9: Kill Hollywood" that gets some raised eyebrows.
The page appears to be a response to the recent fracas over SOPA/PIPA and Hollywood's insistence that its 1960's-era business models are deserving of special legal protection regardless of the disruption that would cause to the 21st-century Internet. But I digress. "Kill Hollywood" is looking for companies that want to "hasten the demise" of movies and TV. The underlying theory is that in 20 years people will (should) do things other than passively consume entertainment and that funding companies now will lead to that sort of social change in a couple decades.
It's a reasonable theory and part of the job of a good angel investor is to find, promote, and take risks on long shots and gambles that may not pay off for decades. But the hostile approach doesn't necessarily sit all that well with people who like movies, despite what they may think of the studios. One such impassioned response came from moviegoer.com in their Moviegoer blog, titled of course "Kill Y Combinator".
Moviegoer itself is an (iPhone) app-centric company, dedicated to the idea that going to the movies is a social experience for which a mobile device app can be a boon. So naturally they have a strong bias toward continuing to encourage people to go to movies and do movie-related things for decades to come. The blog post starts off drawing a line - placing Moviegoer on the anti-SOPA/PIPA side of the discussion but arguing that Y Combinator's call is a kind of "road rage" response.
Certainly the anti-PA group is clear that Hollywood's approach has been aggressive - and not helped by Dodd's attempt to talk tough on Fox News, a tone he abruptly changed. But does one side's nerdrage justify a call to kill it off? Moviegoer argues no, with the sort of circular reasoning that if movies and TV were no good we wouldn't all be torrenting them. That's true so long as you don't think there are no alternatives. Cold pizza isn't as good as some things, but it's still pizza, right?
The Moviegoer piece makes several other interesting points about things like changing the business model, adapting theater showing to capture long-tail effects, and so on - you should read it - but I wanted to pull out one that seems so screamingly obvious even I have tripped over it again and again. What if every bit of content was available for pay, for a reasonable price, nearly everywhere you were connected, 24/7? What if you didn't have to go through subscription sign-ups and long-term contracts and incompatible formats and region encodings and and and all of which put enough friction into the system that it's easier to fire up Bittorrent and type in a search term?
The technology exists to do this right here, right now, today. Apple very nearly did this with iTunes and made a kajillion dollars even though it was format-incompatible and had some DRM hindrances. MP3.com tried and got crushed under the weight of lawyers. What's lacking is the will on the part of the Cartel (afraid much, guys? do you sleep better now that Jobs is dead and you know he's not coming for your movies the way he did for your music?) and someone with the big brass balls and funding to put the tech pieces together. Will Moviegoer (or its parent company) be that someone? I dunno, but I sure hope someone will.
In the end I find myself mostly agreeing with Moviegoer's philosophy. Good movies are good and the art form has survived and thrived for decades because there is good stuff there. Sturgeon's Law applies, of course, but I do like that ten percent. And my 10% is probably not your 10% is not my parents' 10% and on and on. Lean-back entertainment may not be the most fitness-encouraging nor mind-engaging thing human beings can do, but it's fun. And that's worth keeping alive.
Seems that if we're reading the iBooks EULA correctly then if you make something with it you're agreeing to sell that created work through the iBooks store only. You can still give it away anywhere, except of course iBooks only produces content in a proprietary format readable only on Apple devices. And of course selling through Apple's store means forking over 30% to Apple for the privilege of doing so. Never mind the utter ridiculousness of this attempt to lock in book writers, says Chris Foresman at ars: it's potentially illegal as a violation of antitrust.
It was just last August when Apple was hit with one antitrust lawsuit over its ebooks business agreements. Now it looks like they're angling, or maybe just carelessly stumbling, toward another one. Or maybe not. As Foresman points out in the column there's a lot of ambiguity in the language here. Apple isn't claiming ownership or copyright of your created work; instead, it's placing a condition on your use of its software. That latter may well steer clear of antitrust concerns.
Or not. My bet is that some lawyers are going to get very rich off this; if you're an e-books author you might want to steer clear (of iBooks) at least until the dust settles somewhat.
First, she correctly emphasizes that the works in question are not your traditional public domain works. In traditional cases works come into the public domain because their copyrights legally expire. In this case the works in question were considered public domain erroneously, and only because the US did not abide by its treaty obligations, specifically the Berne Convention's Article 18. Under that Article, the US should have implemented copyright regulations that protected certain foreign works as they were protected overseas. Eventually the US did that in the so-called Uruguay Rounds Agreement Act and that Act is what was challenged in this case.
As you probably know, the case went to Holder (that is, the US Government) by a 6-2 decision. The Court saw no problem in placing works under copyright that were previously treated as public domain. Following much of the reasoning in Eldred v Ashcroft the Court majority saw no First Amendment problem, nor a copyright statute problem. This has led to some fears in the blogosphere that Congress will now feel it has a green light to claw back other public domain works. Whether this is a new green light or just an acknowledgement of what the government has been doing since 1790 depends on which side's arguments and briefs you read.
The major point of focus of Hilden's column, and one that I think has a particular chord for Copyfighters, is that in his dissent Breyer focused less on the holders of copyrights than on the original creators. Without someone doing creative work, he reasons, there is nothing to copyright and thus the prefatory language — to promote the Progress of Science and useful Arts — in the Constitution that creates copyrights in the first place deserves more respect.
Breyer (joined by Alito) would have the Court adopt a more utilitarian calculus: if a copyright restriction would promote more works then it should pass Constitutional muster. If it would instead prove more restrictive and lead to less creation then it runs counter to the very reason that copyright exists and so cannot pass Constitutional muster. This has been my belief for some time. I think the past century has seen the balance of power swing vastly in favor of copyright holders and against creators, but Breyer's argument helps me believe there is still hope for a reasoned argument to restoring a more equal balance.
Jonathan Coulton, for those who have been living under a rock, is something of a nerd-rock superstar. Formerly a programmer he has recently made his way as a full-time creative artist with his own works as well as teaming up with pop-culture icons that include Neil Gaiman and John Hodgman. Gamers probably know him best as for the wildly popular "Still Alive" track from Portal and he has been quite happy to give away his songs for free as well as via traditional recordings. And like any other artist working today he has a view on illegal copying.
He notes that people, particularly on the anti-copying side, throw around big numbers with little or no evidence to back them up - numbers based on over-simplistic math and bad premises. And he concludes by saying:
I believe in copyright. I benefit from it. I don’t want it to go away. I love that we have laws and people to enforce them. But if I had to give up one thing, if I had to choose between copyright and the wild west, semi-lawless, innovation-fest that is the internet? I’ll take the internet every time.
It's interesting to me to see him come down on this side of the debate because I found Coulton, and became a fan, due to an illegal work. Even though I'm a gamer I never played Portal, but I play World of Warcraft and apparently so do a lot of other Jonathan Coulton fans.
The points he raises are mostly ones we've discussed over the past few months - ownership questions, proprietary formatting, restrictive DRM and licensing, and so on. But I thought it was worth blogging about his first point,which is just forehead-slappingly obvious and yet somehow I missed it. E-books - at least as they are sold by major providers today - pose a major privacy risk that physical books do not.
As Stallman notes, you can walk into a store and anonymously buy a physical book, often just with cash. At most you might be required to show proof of age for some materials but no record is kept of what you show. Contrast that with e-book purchasing, which requires a logged-in identity that is linked to credit cards, bank accounts, and other hard-to-remove traces. These purchase records can then be subpoenaed or seized by authorities who might have an interest in what you've been reading - bought any books on agricultural fertilizer lately? Or maybe you live in a Middle Eastern country and your government suddenly cares that you've been buying e-books about how to build apps that connect to Twitter's API.
I have several things I've been holding off blogging. Between being away at Arisia, catching up afterward, and skipping posting yesterday in support of the anti-SOPA/PIPA protests (you did call your Congresscritters, right?). Also, we're getting spam-comment bombed lately, which is dragging on the servers. The auto-filters catch a lot of them, but not all. Apologies in advance - I will clean things up ASAP.
He is, naturally, happy to crow about how much he's making on books that major publishers rejected but the deeper points here are what I want to dig into. For one thing, Konrath is actively managing his sales, with data gathering and experimentation around good pricepoints. For himself the sweet spot seems to be about USD 4 or UKP 1.5. This is interesting as other authors have found different pricepoints to work better and worse. What we don't know is what are the factors that make those pricepoints the winners for one author and the losers for another author.
Second, Konrath is clearly pleased at being pulled along in Amazon's wake. All the marketing and expansion of Kindle sales into new countries is expansion of his potential market. For English-language (or at least English language-reading) countries this is a zero-cost expansion, which is important in an environment that features shrinking markets and shrinking opportunities for physical books.
And that leads to the last interesting point, which comes up a bit in the comment thread below the blog post: what happens when the e-reader market saturates? Or more likely, what happens when the Kindle market saturates to be replaced by Kindle Fires or Kindle Novas or whatever comes next? Will Konrath's books still be available on those new platforms? At what cost to whom? How many highly successful e-book authors can the market support? And so on and so on.
More and more the e-book business is starting to remind me of the stories I've read of gold-rush California. A few people got very rich, a lot of people made some money, and a whole lot of people went broke or got hurt along the way. If someone has a formula yet for telling the likely winners from the likely losers I have yet to see it. 2011 saw the outlines of such a guide, compose largely of personal experiences; I expect by the end of 2012 we'll have some really good and decently tested principles. Until then...