Amanda Palmer posted a long (and, as is her way, rambling) blog entry/Kickstarter update addressing the question of "Where All This Kickstarter Money Is Going."

It's short on detail and long on concept, but it's still worth reading as it rattles off the very long list of people and things and responsibilities involved in making a major multi-faceted project come together. As I wrote back in April when I signed up for the Kickstarter, this particular vision of music's future isn't just about a band, an album, a tour. It's about bringing together dozens of creative people each contributing to a multi-faceted, multi-experience endeavor. And that kind of thing doesn't come cheap, even when many (most?) of the people involved are your friends and colleagues who share your vision and dedication.

Everyone needs to eat and artists need to get paid. If I have any criticism of AFP's approach here it's that she's very dedicated to pointing out that even if the Kickstarter clears a million bucks she's not going to get rich off it. That is important, especially when you're asking people up-front to give money and trust they're going to get something worthwhile down the road. As Palmer says, "...paying now for value later is what historically would’ve been a label’s primary purpose."

Since we (the Kickstarter backers) are taking that role, it's important we feel we're getting value for our invested dollars. Fine and good. But I'm very interested in this as a sustainable business model. If Palmer is right and the project looks only to break even then that's not good enough. The Kickstarter becomes an event, not a repeatable model. In my opinion, Palmer and the people who work on this (her band, her artists, etc.) should be making money this way, because art needs to be sustained, not just one-off events, and right now we don't have a better way to sustain art than to compensate directly the creative people involved.

What Drew Wilson over at ZeroPaid has done in this past month is lay out in painstaking extensive detail just exactly what's wrong with the Cartel's propaganda-masquerading-as-science. The link above takes you to his conclusion piece and from there you can link back to the individual stories. It's a lot of reading, particularly if you want to read the original research - there are links to every published paper on which the analysis draws.

In science jargon what Wilson is doing is a meta-analysis. He's bringing together disparate research work over a period of time that examines multiple aspects of a single topic. Meta-analyses and meta-studies are in the news a lot these days as they tend to throw into question long-held assumptions such as the need/safety of hormone replacement therapy or PSA testing. Meta-analyses are also a good way to shed light on situations where there are conflicts of opinion and each side can bring some facts to support its claims.

In Wilson's meta-analysis he draws on studies ranging over the years 2004-2011. By taking studies from different periods of time, the analysis also helps guard against short-term trends. As we noted when LimeWire was shut down a couple years ago, significant events can produce sudden blips in long-term data trends. A meta-analysis should help avoid over-reliance on these blips.

Without stealing too much thunder from Wilson's work I wanted to quote what I think is the most important conclusion that can be drawn from this research:

[L]osses due to file-sharing are statistically indistinguishable from zero.

(h/t Cory and Boingboing for the original pointer.)

Winston Hide, the now-former editor, is a teacher at Harvard School of Public Health, and his resignation reasoning centered around his feeling that Elsevier's high-priced model was not compatible with the needs of people in developing countries. Hide, who is South African, has some direct experience with trying to do research on the continent where, he says:

The vast majority of biomedical scientists in Africa attempt to perform globally competitive research without up-to-date access to the wealth of biomedical literature taken for granted at western institutions.

P.S. The Cost of Knowledge petition is up over 11,500 signatories now. Just sayin'...

(h/t Donna Wentworth and Peter Suber of the Harvard Open Access Project for the original pointer. The Berkman Center hosts the HOAP as well as this blog but there is no direct affiliation.)

But lo, Harvard Book Store is back, under the direction of Jeff Mayersohn, who previously worked in high tech - Sonus Networks and BBN are both on his profile. And Mayersohn knows that Harvard Book Store has to be able to take on the Amazon challenge and win. So far, so good. Forbes reports "double digit sales growth month by month over the last year."

How's he doing it? Innovation and service. Innovation: he's using print-on-demand technology to satisfy customers' instant-gratification desires. "The Espresso Book Machine" as it's called has a built-in inventory of 5,000,000 titles and can be used for custom publishing. The output is high quality, and if you know what you want in advance you can even order your POD book on-line.

Service: you can get your POD book delivered locally by pedal-truck or bicycle, which appeals to the Cambridge-area green-conscious buyers. Know your customer is an ancient sales adage that Mayersohn has taken to heart. And if you go into the store you get:

fanatical attention to customer service with an unrivaled staff of passionate and educated booksellers.

Quick adaptation, a multi-pronged sales strategy, and an eye for winning details. Maybe it really does take a technophile to save a brick-and-mortar establishment. Are any other sellers out there paying attention?

(h/t Emily L for the original pointer.)

I recently got to hear Neal Stephenson talk at MIT. As usual, he was a pleasure*, and the talk ranged over a wide variety of topics, from why America is in a massive idea deficit to why we should all stand up more and sit down less. What he didn't really discuss, to my disappointment, was the Mongoliad. Fortunately, Mark Teppo's "Big Idea" post in Scalzi's Whatever gives a little hint of what's going on here.

The Mongoliad on offer here is a book - a collaborative work. But what's of interest to Copyfight is the structure and entity that produced this book. To quote Teppo:

[W]e formed a company whose goal was to realize a new paradigm in publishing methodology, and to promulgate an argument that transmedia empires could be built using small, highly agile teams that could shift direction quickly and efficiently based on customer need and reaction. Do more of what the fans like; less of what causes them to make the ‘meh’ noise.

*Though I was sad he utterly flubbed my question on design. He confused design aesthetic with implementation shoddiness. C'est la vie.

To review quickly: a feature of the Copyright Act that went into force in 1978 gave record companies 35 years' worth of profits from albums, after which the artists would be allowed to reclaim their rights in the music. Several artists have done so, and the Cartel is fighting them. According to Larry Rohter's NY Times piece linked above, Willis's claim was contested by Scorpio Music and Can’t Stop Productions, who had sued to stop him exercising his termination rights.

As I discussed in the August entry, Scorpio and Can't Stop initially contended that Willis wrote works for hire, meaning that he would have given up all rights. Chief Judge Barry T. Moskowitz of LA's Federal District Court, appeared set to reject that claim so it was withdrawn. Now Willis has back "his share" of ownership in 33 Village People songs.

That "his share" phrase leaves a lot of wiggle room still because the judge has to determine what Willis's share is. There's going to be a lot of unpleasant tangles yet to sort on this one, but it remains significant as the first case to test termination rights and the work-for-hire theory.

(h/t to +Rowan McVey and +Network XXIII News for the original pointer)

Now comes Jon Mitchell on ReadWriteWeb, reporting that "Kindle Sales Plummet". He claims that sucks but I think he's exaggerating. Anyway, Amazon doesn't exactly report its sales of Kindles, so it takes a little bit of sleuthing to infer this. Mainly the inference comes from E Ink Holdings, which supplies the screens for Kindles, reporting that it had a quarterly loss due to a lack of orders from its biggest customer (aka Amazon).

What makes this double-interesting is that it appears that sales of Kindle Fires are also dropping, too. ISC reported that sales of all Android-based tablets dropped in Q1 2012, including Kindle Fires. This isn't hugely surprising to me, given both Apple's splashy announcements and that fact that Android tablets had a stronger-than-expected holiday season in 2011. It will be interesting to see how that holds up over the next couple of quarters.

At the same time, I'm interested to see that more publishers (of news, this time) are backing away from iPad-as-platform. As an MIT alum I got a notice from Tech Review that they are ditching their iPad app. The reasons are strictly financial - it cost a bundle and made no money - but it's a strong cautionary tale for people and organizations that are thinking about taking the Apple golden handcuffs. TR notes that the Financial Times also made a similar decision recently, and that both TR and FT have moved to a free/open model based off HTML5.

I feel like we're in the very early stages of a chess game - most of the things being moved are pawns, and people are just beginning to consider how they're going to achieve strategic objectives like "control the center of the board". I would not be surprised to see tentative moves and hanging back from most of the major players through the next 6-8 months as everyone waits to see how things shake out and what happens to early risk-takers.

Meanwhile, let me give you a couple of pointers to things I think are worth reading relative to the past week's stories.

Amanda Palmer wrote a guest post on techdirt about her successful Kickstarter, which is well on its way to being the biggest ever. As I mentioned last week, one of the few elements I see in common among all the new success models is relentless fan service and Amanda addresses that issue head-on. She talks about "all of that real human connecting" and how it has enabled her to do what she's doing now.

She's also emphatic about another point, which you can read on the Kickstarter site: we lead, the media follows. If you're going to be successful in the independent model of the early-21st century then you make the news yourself. You do it by networking, word of mouth, taking things viral, making info in easily accessible places, in easily reposted (unlocked!) forms, etc. One way to look at this is as a failure of traditional media; another way to look at it as an opportunity for new businesses. There should be people out there setting up companies that are devoted to helping people like Palmer do this because, really, you need some kind of management when your sponsor base is over 10,000 and growing.

I thought this bit was particularly apropos:

I've seen people complaining that this is easy for me to do because I got my start on a major label. It's totally true that the label helped me and my band get known. But after that, the future was up to me. It bought me nothing but a headstart, and I used it. I could have stopped working hard and connecting in 2009. If I'd done that, and then popped up out of nowhere in 2012 to kickstart a solo record in 2012, my album would probably get funded to the tune of $10k...if I was lucky. There are huge ex-major label artists (pointless to name names) who have tried the crowd-funding method and failed dramatically, mostly because they didn't have the online relationship with their fans to rely on.

Second, Cory Doctorow posted a piece in The Guardian on "Why the death of DRM would be good news for readers, writers and publishers." That's a real mouthful of a title but it serves its purpose: DRM is bad business and we need to get that message across much more widely and emphatically. Cory's column is reasoned and historical and it covers ground I expect most of my readers know.

I was sadly amused to revisit the column today in preparation for writing this piece and find on the page the notice that "Comments on this page are now closed." I'm trying to formulate a coherent response that is not laughing out loud at the foolishness and backward-thinking-ness of a site that would close comments on a column, let alone close comments on a column that's not even a week old.

Dear Guardian, comments are lifeblood. You want them. You need them. See above, where I spend my time weeding out spam comments? That's because I treasure the real feedback I get from readers. I love that my first tentative query about Createspace is one of the most commented-on pieces on this blog, over four years later. Do you think Amanda Palmer would ever close comments on something she posted? I think not.

Get with the program, Guardian. You're not doing yourselves, your readers, or your writers any favors here.

First, Target isn't going to sell Kindles anymore. The problem isn't the Kindle per se. It's that Amazon has been using physical retailers as its (unpaid) showrooms. Amazon has encouraged people to go shop in physical stores, then price-compare and buy from Amazon - even offering a discount for doing so. That may be a few bucks in consumers' pockets, but it's a big hit to the brick-and-mortar retailers who are losing customers right out of their showrooms.

Target is still a small fraction of Kindle sales, even though it's the biggest non-Amazon seller. So this mostly amounts to a symbolic middle finger to Amazon, since Target will continue to carry iPad and Nook devices. It's worth noting that both Apple and B&N have large physical presences and as such are much more careful about how the online and retail shopping experiences merge.

Second, Mark Glaser of PBS's Mediashift pointed me to a column by Barbara E. Hernandez titled "Can E-Books Succeed Without Amazon?" The heart of the issue seems to be Amazon's KDP Select program, about which I wrote in March. As I intimated then, the program is a hammerlock on an author and buying into it might not be the brightest move for any aspiring writer.

Hernandez paints a picture of Amazon as "heavy-handed" and notes that many authors are opting for smaller publishers who offer more freedom and leave the authors more in control, such as Bookbaby and Smashwords. Harkening back to the first story, Hernandez quotes Smashwords founder Mark Coker as saying

KDP Select [is] using self-published authors as pawns [in] a broader campaign to wage war against retail competitors

(full disclosure: a couple of my author friends have chosen to go with Smashwords, but I have no incentive to promote that alternative. As noted, I don't even own an e-reader yet.)

One of the little-reported aspects of the current situation in academic research publishing is that much (most?) of the work that is put into these very expensive academic journals is paid for by the taxpayer. In the US there are funding agencies like NIH, CDC and of course ARPA that funnel taxpayer dollars to researchers. In the UK and elsewhere there are similar agencies and grant programs that make this research possible.

Given, then, that the work was paid for by the public it seems a wholly fair question to ask by what rights are the fruits of that work concealed from the public behind expensive paywalls. Wales acknowledges that academic publishers bring value to the process of research publication. However, adding value doesn't equate to having a monopoly lock. Or at least it shouldn't. The effort, dubbed the "Gateway to Research project", has about two years, and currently about UKP 2 million to create an open access environment. They're working with several partners in the UK, including representatives from academia, librarians, and publishers.

There are a number of thorny questions to be hashed out - it's not just as simple as moving research papers from expensive journals to a free Web site. How will research be accessed? How will it be vetted? What processes are necessary for updating or outright retraction of research? What other research materials might be valuable in such a portal - personally I'd like to see the inclusion of things like molecular models, part descriptions, software simulations, data sets, data analysis tools and much more. But can anyone make head or tail of this if it all gets dumped into one portal?

All of these are good and tough questions. Now the next question we want to be asking is: why limit this to just the UK? Where is the US effort?

(h/t Donna Wentworth... yes THAT Donna Wentworth for the pointer)

Last year the event attracted little media attention (see PCWorld's coverage from that day) and, sadly, it appears that little notice will be given again this year.

As the site notes, there has been slow progress on the de-DRM-ing fronts of the past. In particular, much more music is available for download unencumbered now than in the past. But the new fronts that have opened up - particularly ebooks and streaming music/video - remain badly broken and un-free for legal, private uses because of DRM.

DRM is bad business, and bad user experience. Let's get some attention on the need to make it part of the past.

Both of the stories behind yesterday's pair of posts are getting more commentary. Here are a couple quickies and thoughts to go with them:

Michael Marotta writes for the Phoenix on Palmer's choice to skip the major-label route. The Phoenix, being Boston's alternative paper, was one of the first media outlets to notice and publicize Palmer and the Dresden Dolls. Thus, she writes them from time to time.

In her letter this time she points out that even though the Kickstarter has blown the roof off its fundraising goal that still only represents a few thousand fans. Any major-label release that sold that few copies would be considered a flop, and the artist would make no money, never mind that a major label couldn't possibly manage to put out the kind of complex multi-pronged project that Palmer is fundraising for.

In response to yesterday's post, Luis Cruz asked the question of how well this model would work for someone who isn't already established with a fan base. It's a fair and unfair question at the same time. The answer is we don't really know - there are thousands of people trying to find their way through Kickstarter, maxing out their credit cards, busking, playing open mic nights, etc. A few will make it via each of these routes but most won't. But they don't have a lot of alternatives - the number of acts that will make it via the major-label last-century model is also minuscule.

Each year we see a few creative types that seem to break out (Jonathan Coulton, Felicia Day, etc.) and each has a unique path to present success. There doesn't seem to be a good general model, but I think we're starting to see certain elements in common. For example, intense fan service, a hawk eye on the business details, and a willingness to roll with the punches and adapt all seem to be necessary ingredients. Palmer's success didn't come overnight - Dresden Dolls formed in 2000 I think - which means she's busted ass for over a decade now. What she's doing now would not have been possible in 2000 but that says more about the Internet age than about Palmer.

On the Microsoft/B&N partnership, the blog entry by Tobias Buckell is typical of the reactions I'm seeing. Buckell's point, which I think is spot-on, is that this is not at all about a Windows 8 Nook. It's about the merging of two software ecosystems and the possibilities that opens up. And also that neither big entity seems to have concrete plans for how that's going to happen. Hell, they couldn't even figure out a real final name for their joint venture. This makes me think the whole thing was rushed and not necessarily well thought-out.

Above I mentioned "rolling with the punches." In particular I think a key element of this is being willing to re-invent one's self-conception. Day moved from doing standard television shows to running her own YouTube channel. Palmer has always had theatrical elements as part of her musical acts, but lately she's added spoken word, poetry, and art/photography. What makes me doubt that the MS/B&N merger will work is that I can't see either company pivoting quickly enough to re-imagine themselves in new ways. But a big bankroll buys you a lot, not least of it time, so I'm not willing to write them off entirely just yet.

In juxtaposition to the previous story, which is all about big companies sticking with last year's model, I bring you yet another Kickstarter from Amada Palmer, who chucked over a half-million dollar big-budget studio production in favor of getting to do it herself, if people fund her. And, she admits, maybe make some money for herself this way, even though you can get the entire album as digital download for a buck.

Everything about this project screams 'forward-thinking': it's crowd-funded (via Kickstarter). There is an option for patronage beyond what Kickstarter allows. The project involves multiple artists, all retaining control of their work. The product is multi-faceted (album AND book AND art tour AND maybe more). The experience is multi-layered - even tickets to the shows are exclusively on Kickstarter. The promotion is direct and from the heart - Ms. Palmer is not ashamed to say "fucking" nor is she ashamed to express her love for her fans.

This is the sort of thing you can't buy with astro-turfing. This is the sort of thing that will blaze trails for this century's creative artists. I confess I am not a huge fan of Ms. Palmer's music and her stage acts. But I admire the hell out of what she's doing.

(Hat-tip +Kee Hinckley for the original pointer.)

This seems like a bad and backward-thinking way for B&N to go, to me. As we've been discussing this month, dedicated e-readers are going to die, including Nook. Tablets running things like Windows 8 will replace these devices. Of course B&N wants there to be a Nook app for Windows 8. But it also wants one for iPad and Android tablets. Microsoft's money might get them first place in the development line, but it can't possibly buy exclusivity. B&N is also probably being foolish to prioritize a Windows-OS version, in that Windows 8 has such a tiny user-base. A Nook app for either of the other big sellers would likely reach far more of B&N's customers.

The PW piece has a bit of puffery about how they're going to do unspecified other things, and combine assets and blah blah. It includes blather about B&N's physical stores, about which Microsoft cares not one whit, and has not one word about the one truly revolutionary thing to happen in e-books this year: Tom Doherty imprints' decision to dump DRM.

All of which tells me they don't have an actual business model. That's kind of a shame, actually, because I can think of at least two that would be absolutely rocking, given these two companies' expertise and current footprints.

Stross has been careful to state that he had no insider view that Tom Doherty Associates - the publishers who put out the Tor, Forge, and other lines of books - were going to make a big move to drop DRM. But even without that knowledge, Stross put together what he saw as the business case for getting rid of DRM. Long-time readers here will know that I am a big fan of the creators should get paid viewpoint, but that we also share the view put forth by people like Cory Doctorow that the actual business effect of DRM is not to control illegal copying, but rather to hand the manufacturers of ebook readers a stranglehold on everyone and everything.

It's not going to surprise any of my readers that Stross concludes that the only way to break Amazon's stranglehold is to drop DRM. In a DRM-free world, you can buy a book that is readable on a Kindle and on a Nook and on an iPad. Thus, it doesn't matter if you buy that book from Amazon. It may be the case that Amazon offers you a discount, or a frequent-buyer program, or some other incentive. The publishers can't guarantee that Amazon won't be able to dominate the market by virtue of its strong competitive position, wide inventory of products, and other advantages. What they can guarantee is that their readers will no longer be locked into a Kindle.

Although Stross doesn't say this directly, I feel this also opens up a world of other direct-sale opportunities for publishers. I mentioned Emily Books a couple weeks back, who are trying to operate as independents. In a DRM-free world there's no reason that a big-name publisher can't do a deal with Emily Books or any of a thousand other small, high-value, curated ebook outfits. Get DRM-free versions of Emily Books on every device, with a publisher like Tom Doherty Associates lending its marketing and mass distribution expertise and getting a cut of the profits. I can think up at least six more profitable-to-the-publisher ways to build business in a DRM-free work. Stross's piece claims that dropping DRM won't lead to immediate revenue gains, but I think that's true only if you consider going DRM-free as a stand-alone action rather than part of a comprehensive business strategy.

I was also amused to see that Stross also predicts the demise of the dedicated e-reader, given that most people I talk to think I'm nuts when I say that. He's more generous than I was, giving the stand-alone reader "2-3 years possibly, 5 years probably" where I think that by this time next year everyone will be talking about the decline of the device as tablets ascend.

Lastly, I wanted to bring to your attention a fascinating piece that appeared yesterday on PaidContent, '"Why I break DRM on e-books”: A publishing exec speaks out.' In this column, Laura Hazard Owen tells the story of one (obviously anonymous) executive from the publishing industry whom she introduced to the common practice of unlocking a purchased book so it can be read anywhere.

Exec, as she dubs her story protagonist, admits to being influenced by Stross's writing. Exec realized that s/he had no control over the ability to do perfectly legal things with purchased ebooks. Exec isn't sharing the cracked books with anyone, let alone putting them out for general downloading. Exec just wants to be able to read the stuff, and has figured out that the sole purpose of DRM is to control the consumer. Sadly, even though Exec admits to a decision to break every DRMed ebook from now on it doesn't appear that Exec will do anything to change stupid corporate policies that put the DRM there in the first place.

Still, admitting you have a problem is the first step to recovery, right? Maybe we should set up a 12-step program for all the members of the Cartel who are addicted to DRM.

Yes, Tor and Forge will soon be publishing their e-book titles in a DRM-free way. Not just some titles - the entirety of their lines are scheduled to get unshackled. I still need to digest this and think about it for a while before I have a reaction to post, so in the meantime let me link you to two thoughtful guys who have a fair bit to say from the inside.

John Scalzi posts what he calls "Immediate Thoughts" on the news. Expect another thoughtful analysis from him later in his Whatever blog.

Charles Stross writes his reactions as "More on DRM and ebooks". Worth noting that Stross has been one of the most outspoken anti-DRM voices in the SFWA stables of late.

To review: academics who publish provide free material and free labor to big publishers like Elsevier who take this free material and package it into things like journals that are then sold at great expense to places like libraries. And by "great expense" I mean tens of thousands of dollars per journal per year. More on that below.

Often, to be published requires not just giving up your time and energy but also all kinds of rights on your own writing. Some academic publishers will, for example, forbid authors from having copies of their own papers on their own Web sites. Sometimes you're not allowed to submit the entire body of your writing to a scientific indexing service, just an abstract. Both of these hurt authors by making their work harder to find and read, but bring more revenue to the publishers who charge for things like reprints, access to their walled "digital libraries," and so on.

If you think this is nuts, you're not alone. The Cost of Knowledge anti-Elsevier petition, for example, is up over 10,000 signatories as I write this. That brings me to the first item, a story by John Naughton for The Observer titled "Academic publishing doesn't add up".

In his column, Naughton reviews the costs, power structures, and "intrinsic absurdity" of the academic publishing racket, pointing out among other things that at least one estimate of the free labor provided for peer reviewing states its value at over UKP 165,000,000. He notes that Tim Gowers' petition is but one of many gaining traction and that even some research-funding bodies are beginning to require that people who accept their funding agree to publication that isn't behind a paywall.

About that "pay" bit... Boingboing recently highlighted a letter from Harvard Library's Faculty Advisory Council. In it, the Council expresses the view that the costs of these journals will soon put the library out of business. Remember those tens of thousands I mentioned? They add up really fast, particularly when you want to run a world-class research library for a multi-disciplinary faculty. Harvard (or MIT or Boston University or Tufts, just to name four world-class institutions close to where I sit) doesn't just have to keep in the high-prestige journals in biology. They also need the journals in mathematics, physics, chemistry, astronomy, computer science, mechanical engineering, and on and on and on. They don't have the option to leave out some.

The result, at least in the case of Harvard, is an annual cost just for journals of USD 3,750,000. That doesn't count access fees, reprint fees, and other costs. And the memorandum points out that the rate of increase in these costs far exceeds other measures such as the rise in tuition costs, inflation, and so on. In plain English, the publishers are gouging ever harder.

So, where does that leave us? Libraries are grumbling, funders are disquieted, and individual faculty members are happy to sign petitions of protest. But none of this addresses what I see as the key issue: faculty give these journals this much power because they rest entire careers on them. You get tenure based on your academic publications. You submit your publications list when you apply for grants and funding. Look at any academic C.V. and you'll see that it's structured so that the big name journals in which the person has published are listed promptly. It's one of the first things that gets looked at when someone applies for an academic job.

Until that changes, nothing is going to change. I'm sorry to be so consistently negative but "publish or perish" is still the law of the ivory tower.

Start by reading the agreement as posted to Github. There's a lot of discussion around it, and the specific language will likely change, but the basic agreement is very short and readable. It is intended to replace the default blanket assignment that is used in most industries. In the default you give the company everything, and they can do anything with it. Your name still appears on the patent, but you assign all rights to your employer - usually as a consideration of employment, meaning you can't work (at tech, bio, pharma, or any other IP-using company) unless you agree to this.

The company then is free to use the patents however it wishes. You may recall that this was the topic of some outrage about a month ago, when Andy Baio complained bitterly in a WIRED piece about how Yahoo was using patents (not his, keep in mind, but he was upset anyway). This freedom is restricted under Twitter's proposed IPA, which specifically limits companies' ability to use assigned patents to what the IPA calls "Defensive Purposes."

In theory, a company with this agreement in place could use patents to defend itself, but not to initiate patent-enforcement action. That's a nice theory, but there are two problems I see with it. The first, and smaller problem, is that the way the language of the IPA currently stands, it permits IPA-covered patents to be asserted

against an Entity that has filed, maintained, or voluntarily participated in a patent infringement lawsuit against another in the past ten years

But leave that aside for the moment, and consider what it means to be a publicly traded corporation. It means you are legally bound to do whatever increases shareholder value. Voluntarily disarming yourself in this way leaves you at a competitive disadvantage against other players in your marketplace who are free to infringe your patents, so long as they don't sue. Can you imagine trying to go before your biggest shareholders and say "Well, yes, I'm going to allow our competitors to continue infringing all these patents even though we think we have a good legal case."

You'd be fired in a heartbeat, and with very good justification. You'd be lucky if you didn't find yourself on the wrong end of a shareholder lawsuit. Private companies can get something of a pass on this kind of thing as they don't have the same legal obligations to shareholders. In addition, private companies can be much more easily molded to the personalities of the founders and controlling early stakeholders. But big public companies? The Apples, IBMs, HPs, GEs, Genzymes, Motorolas, Honeywells, etc? They're all going to continue to use patents offensively to protect their markets and products. I hear Google used to be a not-evil place, too.

The IPA is not an inherently bad idea. I applaud Messinger and Twitter for thinking innovatively and trying to get something new started. But I think that the press are being vastly overoptimistic about the likelihood of success here; for example, see Joe Brockmeier's piece.

He lists four reasons why companies should adopt the IPA, which come down to hoping a lot. #1 is that developers will prefer to work at an IPA-using company. I'm sorry but 99.999% of developers don't think about patents and certainly don't think about them during the hiring process. Developers go where the work is interesting and the pay is good. Developers go where they get to do stuff that's fun and looks good on their resumes.

Number 2 is that companies won't need incentive plans to convince developers to file patents. I take it from this that Brockmeier has never filed a patent. The process is BORING and TEDIOUS in the extreme, involving hours of meetings with lawyers who don't understand your work and who insist you do all sorts of annoying arcana. Incentive programs exist because companies realize that developers hate this stuff, but hey for five thousand bucks they can get a really cool new toy so sure, they'll put up with the annoyance. The future use of whatever comes out the lawyer's pen is not even part of the consideration.

Number 3 - it could reduce the number of trolls, but frankly trolls are an overblown annoyance. They're a pack of fleas on the ass of the bull that is rampaging in the tech china shop. The bull is composed of those very same big names (IBM, Apple, HP, Microsoft, etc) aided and abetted by a thoroughly broken patent system. I think Mark Cuban gets overheated at times, but I definitely understand his visceral desire to burn down the entire broken edifice that is software patenting right now. Patent trolls are a symptom, not the disease.

Number 4 - the IPA can be a poison pill. Which is to say that if you're someone like AOL or Yahoo and your company is collapsing then you can't even scrape a bit of value out of what little you have left. Boy, that's attractive! I'm about to default on my mortgage, so I'll set my car on fire, too! Seriously, who thinks like that?

The press needs to take a much more realistic look at this proposal and talk about the ways in which it can be made more workable. For example, I'm personally a fan of patent pools, in which companies contribute mutual value, take mutual value and have financial incentives to avoid hostile legal actions. IPA-like agreements and additional steps like compulsory licensing could play a big part in creating an environment where nobody gets everything, but everyone gets enough to be satisfied, without having to disarm themselves.

In a New York Times piece, David Streitfeld notes that Amazon has already announced plans to "push down" e-book prices. Of course, the problem isn't what happens in the short term, it's what happens over the longer term. There continue to be two diametrically opposed opinions on this. On the one hand, we have the old-school notion that says monopolists will raise prices no matter what - the view argued by those who didn't settle with DOJ. I continue to find this ironic after Apple's history of holding the line on music prices against publishers who wanted to charge far more. On the other hand, we see independent authors like Konrath who argue that sales are extremely sensitive to pricing and monopolist price-jacking will just cause people to switch back to physical books.

There is already a potentially significant price gap in the (retail) costs of e-books and physical books. To the degree that a consumer has a choice - that is, already owns the e-book device - the price gap has to matter. For consumers who aren't already locked into a device, the gap has to be factored against the cost of buying a new device.

A possible third way could come from small e-booksellers, according to a Time Techland piece by Keith Wagstaff this week. Under the two very photogenic ladies from Emily Books the column points out that for all the hand-wringing over the potential power Amazon will have, nobody at the big publishers is actually doing anything about it. Hopping into bed with Apple isn't precisely a great move, but nobody at the big houses seems to have a better idea.

Emily's idea is to offer a high-touch hands-on approach, giving readers a better idea of the quality of what they're getting. It's a simple model, and one that has been replicated with all kinds of specialty brands and products in all kinds of industries. But it's nearly impossible to do with e-books because the publishers are so afraid that they won't let anyone sell their e-books without massive, complicated, and expensive DRM.

Wagstaff devotes more than half his column to excoriating the idiocy that is DRM, a story that I'm sure most Copyfight readers know by now. He ends by saying:

DRM requirements are going to have to go. It’s probably going to happen eventually; if I were a publisher, I’d get ahead of the curve and embrace a more diverse marketplace sooner rather than later.

Which brings me back around to a piece Cory Doctorow put up on Boingboing last week titled "Antitrust and ebooks: regulators miss the big DRM lock-in picture" which itself spins off a Tim Carmody piece for WIRED.

The point these two are making is that antitrust regulators are looking at the wrong thing. Sure, agency pricing set up by collusion would be illegal, but it's not half so anti-competitive as the kinds of platform locks that DRM and other restrictions the DOJ is giving a pass to. Carmody points out that Apple also employs a variety of anti-competitive measures to lock customers in. And, as I'm getting sick of saying and you are probably getting sick of hearing, every bit of lock-in is going to end up harming the marketplace and harming readers particularly.

Yeah, I get that e-books have lots of advantages. I'd like to get some. But not at this cost - and I don't mean whatever Amazon decides to charge.

I feel compelled to repeat before I light into this that my personal belief is that the current construction of copyright law in the US is far too tilted in favor of maximalism, by which I mean putting the rights of copyright holders above other considerations such as scholarship and the general welfare. It was obvious to me that SCOTUS would see how Eldred should be decided, and how continuing to extend at whim the term of copyright violated the originalist language of "for a limited time." As the man said, I may have been (on the) the losing side. Still not convinced it was the wrong one.

What I am convinced of is that Eldred remains the current settled law of the land, and that officials such as Maria Pallante, the Register of Copyrights, have a duty to follow and uphold the law until such time as it's changed. Let's not forget this all started with Masnick hyperventilating about how her statements in favor of copyright maximalism made her incompetent to do her job.

Now let's look at Masnick's current long screed. Without delving into too much detail what he seems to be harping on is the distinction between 'purpose' and 'method.' He still asserts that the purpose of copyright is contained it its preamble language, and that the methods should serve that purpose and that's what everyone else should believe, too, or they're wrong and he's right. This is a less well-written version of the Breyer test and I really do recommend that you, and Masnick, go reread that opinion. Breyer's writing on IP matters is not always good enough or clear enough, but in this case I think he makes the argument cogently and persuasively. But as we reread, let's keep in mind Breyer was writing a minority opinion. Breyer's side didn't win that case (Golan v Holder) and thus it is not the law of the land.

Masnick seems to think he can bolster his argument with a "bunch of quotes" (his words) that support his view. Dear Mike Masnick, I can personally guarantee you that every losing side in every SCOTUS case came equipped with more than a few "quotes." They had amicus briefs, and detailed citations of precedential cases that they believed supported their side. Having a bunch of quotes doesn't make you right and the other guy wrong.

With very little due respect to Chief Justice Roberts, the job of a judge - particularly a Supreme Court justice - is a hell of a lot more than just calling balls and strikes. It's weighing meanings, and examining evidence that supports potentially contradictory interpretations and deciding which one is right. Precedents exist, but may not apply. Or someone else may read that precedent differently than you read it. If you read a dissenting opinion in a Supreme Court case you may find language that says, in effect, "those other five guys are wrong." Justice Scalia is known for taking his colleagues to task in his minority opinions for, in his view, being wrong. He does this in great detail, with extensive citations and as much weight of authority as he can bring to bear. But that doesn't make him right - the majority opinion remains the majority opinion and thus the governing interpretation of our laws.

Which is to say, you can't just pick a few quotes that support your opinion and then say, "See, this means the law says what I think it says." Well, apparently if you're Mike Masnick you can. But I'm still going to laugh at you for doing it.

Sure, there's still a ton of copyrighted files flowing on Bittorrent but there are also files on Twitter and Facebook and YouTube and any other social media you care to name. More interestingly, the shift to streaming has opened up space for new services like Spotify and for companies like Vevo to stake out legal and interesting new turf on places like YouTube. And to be fair, some mainstream media has started talking about the idea (see this PCWorld story from Oct 2011).

But never mind all that interesting new stuff, the RIAA has its own version of history and it's going to stick to that version no matter what. In a blog entry posted last week, Joshua Friedlander, the Cartel's VP of "Strategic Data Analysis," trumpets their success at smashing sharing networks. He's not just relying on marketing "research" like last time, he's relying on a truly dreadful paper put out by an actual (Wellesley) college professor.

Here's the paper itself, "The Effect of Graduated Response Anti-Piracy Laws on Music Sales". It's an abominable piece of badly put-together propaganda masquerading as research. How do I know this? I read the paper. I bet you plenty of journalists will not bother with this; they'll just blandly repeat what's in the RIAA blog entry. Are you listening, Greg Sandoval?

To highlight just one critical flaw, I call your attention to the methods used, which involve looking at results data (the change in purchases from iTunes) and then inferring what caused those changes. Rather than doing something like asking people "why are you buying more music" or investigating things like public awareness, Professor Danaher simply assumes the counterfactual. If sales went up, it must be because of Factor A. Shame on him for bad experimental design, and double shame on Friedlander for citing this paper as if it was actual published work. It's not, it's a "working paper" which means it hasn't been subjected to the kind of peer review that would highlight methodological flaws. Two words, Professor Danaher: confounding factors.

Friedlander also points to "Nielsen Netview data" (which I could not find the source for) in order to tell us that "the vast majority of those who used Limewire in September 2010 did not use it in September 2011." Could that possibly be because Limewire was shut down in October of 2010? So, a year after a service was shut down, 90% of people had stopped using it. That's a remarkable achievement; next, do a survey on how many people are renting DVDs from Blockbuster.

Also shocking is that if you mention Limewire, and then ask people whether they use other sharing sites, they tend to say "no." Could that be because people are not stupid? Seriously, I'm more surprised that 35% of people who used to use Limewire would admit to migrating to another file-sharing network. Brazen is as brazen does, but no, officer I promise never to speed again. Honest!

I've ranted on about this long enough; I'm not even going to dignify Friedlander's continued reference to NDP puff pieces with a response. I will instead say that I agree with Paul of digitalmusicnews.com who say that "This isn't whack-a-mole anymore." The Cartel has adopted a vastly scaled-up, scorched earth policy. They've co-opted law enforcement into becoming their enforcement thugs and they are taking no prisoners.

I'd stress out about this, but I have to go refresh my music stream instead.

First, the practical response. Dearauthor.com has a very nice (if lengthy) guide to "What happens next?" It's complicated, in part because some of the publishers accepted a settlement and some rejected it. So what happens with your e-books (both as an author and as a reader) depends on who the publisher is. Also bear in mind that the settlement doesn't yet have the official court stamp of approval, which could take as much as 60 days to get.

For example, it's quite likely that those publishers that signed the consent agreement will quickly negotiate new agreements with Amazon, which still has a dominant position in the e-book market. Because of the terms of the agreement, books will appear in Amazon's Marketplace at variable prices. There will be an ability to discount, to manage prices, and I suspect Amazon will not pass up the opportunity to promote its (re)acquisitions, possibly with sales and offers. If you were holding off on buying some e-books because of pricing in the past few months now is an excellent time to start scanning for bargains. Assuming, of course, that your preferred books are published by certain publishers and are on your locked-in platform. But I digress.

Dearauthor seems to think that the prices on physical books are due for another rise, and that the entire concept of a mass-market edition is at risk. I generally agree, but don't think it will happen this year, for reasons I think will become apparent as 2012 unfolds, particularly the end-of-year shopping/gifting season.

To wit: I believe that the dedicated e-book reader may well have plateaued already. In 2013 I think we'll start to see the dedicated e-reader go the way of the point-and-shoot camera as tablet computers start to become less pricey and expand their reach and function in accordance with some version of Moore's Law. Just as peoples' mobile phones took over every function that a point-and-shoot had, tablets will do everything that e-readers do. Yes, phones and tablets cost more, but people want mobile devices for other reasons and once you have those devices you don't want or need a second single-purpose device. In the mass consumer electronics market, special-purpose hardware tends to lose badly to general-purpose hardware. Your set-top box is a DVR (and maybe a DVD/Blue-Ray player too). Your home movie camera is called "iPhone" or "Droid." Et cetera.

E-book readers will not be immune, and their demise will shake up the market significantly. If Apple continues to be this hostile, what will be the fate of a "Kindle app" for iPad? Will Apple even allow such an app in the store? Disruption of this sort always hurts consumer adoption, as does a failure to converge to a single standard. A slowdown in consumer adoption of e-readers may well delay the demise of the mass-market paperback, at least for a year.

To close out the Dearauthor piece, I think they hit the nail on the head where they say

[P]ublishers have sustained a big public relations blow. People who never read an ebook or haven’t followed this issue closely now are exposed to this idea that publishers stand accused of engaging in price fixing

The second good thinky piece comes from Scott M Fulton, III on ReadWriteWeb, who published a column titled "Does Amazon Have a Right to a Price Monopoly?" This is an excellent question, to which the answer seems to be "no" on the face of it, but do read Fulton's thinking because really it seems nobody has yet put forth a good answer.

Fulton makes a couple good points, the first of which is that Amazon's behavior in arousing the book publishers' ire is remarkably akin to what Apple itself did with its iTunes store pricing. Jobs wanted a certain price for songs and he got that price. The music publishers fumed and fought and flailed but 99 cents it stayed. His other point is that the publishers (and Apple) who are fighting the suit may be in position to counter at least the prima facie evidence of collusion that the government seems to be making its case on. Whether that's a wise move is still debatable. Making yourself look bad in front of customers is rarely a winning strategy.

Finally, In delightful counterpoint to Jon Sargent, we get US DOJ (acting) Antitrust Chief Sharis Pozen claiming that the point of the settlement is to "[open] up the competitive marketplace and the competitive landscape." So now both sides claim they're all about open competition - isn't that wonderful? And that brings me to John Scalzi's Whatever column published yesterday in response to the public drama. As he points out, all of the players here are in it for their own (and their shareholders') pocketbooks.

You, and me, and those who read or might read e-books are here solely for the purpose of giving these companies money. That's what they're in business for. Statements about the public interest, or open competition are just part of the PR maneuvering game. Corporate strategies have everything to do with profit and nothing to do with "good" or "evil." Really.

This morning, Kate Brinks (the official Press Contact for Nest) was kind enough to send me a copy of Nest's just-filed response. It's dressed up in polite language, but what it amounts to is Nest calling "BS" on Honeywell, and filing its own counter-claims. In order to lead this fight it has brought on board one Chip Lutton who hasn't even had time to update his LinkedIn profile there. See, he's left Apple and joined Nest as Chief Counsel. This is very good news for Nest, I think, as Lutton has been helping steer Apple's worldwide patent war and knows a thing or two about how big companies do the patent dance.

So, what do Lutton and Nest have to say in response to Honeywell's charges of patent and design infringement? It's the usual - Honeywell are stifling competition, their patents are "hopelessly invalid" where they are "not worthy of a patent". The deep deep irony of someone from Apple complaining that someone else is asserting crap patents is apparently not a factor in drafting press releases like these. In summary: Nest are going to challenge the patents' validity, push for re-examination, and hope that the judge finds that they have sufficient grounds to proceed. If the judge thinks they have even a reasonable chance then it's likely they won't be hit with an injunction and can go on building their business.

If Honeywell is able to convince a judge otherwise it's possible Nest could be cut off from its sole source of revenue, which would make its investors even less happy. My guess is that Lutton's first job is to make sure that doesn't happen. Whether this leads to serious negotiations or to a courtroom date afterward is something we probably won't know for many months.

Quick recap: the DOJ has been hinting about filing this thing for at least a month. The core charge is that five big publishers colluded with Apple to fix prices via an agency model for e-books. According to the WSJ piece, the civil suit alleges that the publishers banded together by phone and email to break Amazon's back over its "wretched $9.99 price point."

The new news is that three of the five would rather smoke than fight, agreeing to a settlement that will let Amazon resume discounting e-books. They may also have to pay "tens of millions of dollars in restitution " to consumers who were ripped off by the illegally priced e-books, settling a separate suit brought by a group of states. Apple and two of the publishers didn't like DOJ's terms and will do the "see you in court" routine.

The first part of that routine is, of course, trying one's case in the press. DOJ tries to make its case look as strong as possible, and the defendants respond by denying guilt and making charges about government interfering in good ole American business. If that's what Sargent wants to do he needs a better writer - maybe he knows a few?

See his blog post on tor.com (Tor is owned by Macmillan). In this triumph of illogic he claims that switching to the agency model would "make less money on our e book business." Say what? You jump prices 30% overnight and make less money? Either you're not fit to run a business or something very fishy is going on. Trust me, if I'm hurting trying to sell a product for $9.99 and tomorrow you let me sell it for $12.99 and prevent anyone from discounting it back down? I'm going to make more money.

Unless, somehow, you think the 30% price jump is going to kill your customers' willingness to buy that product, in which case you are a frakking moron for jumping the price in the first place.

Moving on, we then get the claim that "We made the change to support an open and competitive market." Would someone like to tell me how a price-fixed, guaranteed-no-discounting market is more "open" or "competitive" than one that lets prices vary? Oh, never mind. This is code for "we found a way to force people to buy our stuff at the price we wanted and from the people we want you to buy from, who are not Amazon."

The best part is the personal story: "I made the decision on January 22nd, 2010 a little after 4:00 AM, on an exercise bike in my basement." Dude, if you're deciding the entire future of your business at dark-o'clock when you can't sleep then you need to take a big step back, and maybe step down. The corporate cowboy routine may play well if you're Mark Cuban or Donald Trump, but (even though your company is privately held) there are people who depend on a management team making responsible, well thought-out decisions. Preferably not at four in the morning.

The decision last month in Mayo v Prometheus was either good or bad, depending on which side you stand for. Organizations such as the (generally liberal) ACLU, the (generally libertarian) Cato Institute, and the (generally non-politically aligned) AMA were all pleased by the ruling in Mayo's favor. Biotech/pharma companies were dismayed. But there's a third group, nominally neutral in this particular dispute, who have to deal with its consequences: the patent examiners who have to decide what they should and should not allow as patents and the applicants (and their attorneys) who have to construct patent applications, draw defensible claims, and secure the patents that the SCOTUS decision should enable.

To the dismay of this third group the majority decision, written by Justice Breyer, is causing more confusion than clarity, as has happened with several recent SCOTUS patent decisions. Greg Aharonian's PATNEWS published a letter this month from an anonymous group of examiners in the USPTO's "biotech Art Groups" - the people responsible for making judgments of patent applications in light of this decision. And they are not happy people.

It seems that Breyer's opinion confuses 35 U.S.C. 101 and 35 U.S.C. 103. That's two key sections of US patent law covering the requirements for an invention to be patentable. See the Wikipedia entry for a mostly non-legalese discussion. The actual (sparse) legal language can be found at sites such as Cornell's Legal Information Institute.

Taken as a whole, a non-patenting outsider doesn't care about these distinctions. Either something is or is not covered by a patent and it doesn't matter why unless you plan to challenge the patent somehow. But the people who are involved in practicing the law care a great deal about these distinctions. An invention may be rejected on 101 grounds or, separately, on 103 grounds. Challenges to patents, or to specific patent claims, can be brought under different sections of the law, and there are different requirements in each of these cases

And let's not forget that none of these things is free. Patent examiners always have more work to do than they can handle; if they reject wrongly and have to re-examine then they've taken away time that could have been used to examine another patent, which harms them and the long queue of waiting applicants. Patent applicants have to pay lawyers, court costs, their own time, etc., none of which are cheap. Getting 101/103 wrong can cost a lot of money, so it really matters if Breyer's opinion has messed this up.

Specifically, the patent examiners say:

[T]he decision never says what the natural laws are in the claims or how the claims are simply an application of the natural laws. The starting material and product are not naturally occurring. How are we to justify saying something is or isn't simply an application of a natural law?

The point of novelty in the patents (Applicants' discovery) seems to be that a therapeutic amount of the drug is one that produces an amount of the metabolite in claim 1 in the blood within the range recited in claim 1. [...] Determining this indicator (metabolite range) may or may not be an invention. But that determination is better treated under 103.

[...]

We don't know what the PTO can do with this decision, because no examiner thinks like the Supremes.

The 101/103 distinction revolves around what is eligible to be patented with 101 criteria supposed to govern novelty and usefulness versus 103 criteria governing (non)obviousness. That is, even if you've come up with something new and useful, if the invention was obvious you still may not be able to get a patent on it. What Breyer's opinion seems to be doing is stating that Prometheus's patent is invalid in part because of the use of "natural laws" (which might be read as a 101 objection) and in part because the result (of reading the metabolite level) is obvious - to a person skilled in the art, remember.

But if natural law applications fail for obviousness reasons then... um, what's the point of having 101 and 103 be separate? The examiner writing above seems to be making the point that the Supreme Court majority is written as if by a layperson who doesn't care about the 101/103 distinctions, but has to be treated as law of the land by patent examiners who care very much about this.

No wonder they're tearing their hair out.

(Excerpts and quotes above taken from PATNEWS by kind permission of Greg Aharonian of Internet Patent News Service and publisher of PATNEWS. The newsletter itself has no online site, but you can subscribe at http://bustpatents.com/)

Yesterday, the Second Circuit handed down its decision, which is something of a mixed bag. The trial court had pretty completely sided with YouTube, in a way that felt like a complete victory for safe harbor. The Circuit decision is more mixed: in part they upheld, in part they overturned, and at least one key question has been remanded back down for further argument.

The response to this mixed decision has itself been mixed. Some bloggers seem to think it's hugely significant (e.g. calling it a "DMCA Game Change"). However, I come down on the side of EFF Deeplinks blogger Corynne McSherry and Volokh Conspiracy blogger David Post that the decision is not all that bad, and in fact mostly upholds the key elements of the safe harbor concept.

As I see it there are three key elements here: Does safe harbor apply? Who is responsible for finding infringing content? What must be done when infringement is claimed? YouTube clearly won on points one and two and the third will need to be further argued.

As Post points out, the Circuit's finding is that a safe harbor site such as YouTube is protected from all infringment claims, including contributory infringement, inducement, and so-called "vicarious" infringement. In addition, the Circuit clearly assigns the responsibility on the claimant, not the hosting entity, to determine specific infringement by content. The Cartel's theories about pre-filtering and keyword matching fall. Takedown notices may still be subject to abuse or over-use, but the responsibility for generating notices is still there, an important victory for YouTube.

The issues on which YouTube lost, and which are now remanded down for further argument, deal with what steps it (and similar safe harbor-protected) entities must take when made aware of infringement allegations. The Circuit clearly ruled out what's being called a "willful blindness" defense - that is, YouTube can't shield itself from knowing about infringing content. And, it must "act expeditiously" to remove or prevent access to content that is claimed to infringe. There's also an unresolved question of what the Circuit called "substantial influence" and some question about syndication of allegedly infringing content. These issues will now be re-argued at the lower court.

DeVoy calls this a "gut punch" but then goes on to delve into the details that make it less significant, though I agree some of them are thorny questions yet to be resolved. Likewise, Eriq Gardner at the Hollywood Reporter claims the Circuit "Side[d] with Viacom" but I think he is mistaken, too.

Matters of fact-finding, such as the Circuit required to be resolved, will vary from case to case. What is important here, I think is that the Circuit has affirmed the overall structure of safe harbor policy, clearly rejected attempts to drag in other sorts of copyright-infringing activities, and begun to articulate what may become a recognized standard for what actions a safe harbor-protected entity has to take. That's not a complete vindication of either side, but the scales I see are definitely tipped in YouTube's favor.

Why this is surprising, or why it causes Techcrunch's Mike Masnick positively to foam at the mouth is beyond me. Masnick notes that in two recent talks she's taken a retrograde and maximalist position, and then goes on to rant that this means she "doesn't understand her job" and that holding such views should be "grounds for termination."

Beg pardon? Since when has the Copyright Office been any bastion of progressive viewpoints, or even vaguely friendly to "the copyleft agenda" - whatever that might be.
Masnick's major point seems to be that he thinks the purpose of copyright is to promote some nebulous social value. If the head of the Copyright Office seems to think the purpose of copyrights is to make money for the rights-holder that's kind of disappointing and unenlightened, but hardly a shock. Masnick seems to be referring to what I've been calling "The Breyer Test", but hasn't noticed that Breyer was writing a minority opinion.

It's an opinion I happen to agree with, but it's still the minority opinion. What Pallante is reflecting is the majority opinion, which is to say the settled law of the land. So we have a high government official saying she agrees with the law of the land, and this is cause for ranting... how? I dunno, Techdirt is a better (or at least more popular) blog than Copyfight, so maybe I should write more rants and less reasoned posts.

About two weeks ago, Yahoo sued Facebook over a set of ten patents, which caused a lot of bloggers to go into hyperdrive and flail around. Today, Facebook counter-sued.

As TechCrunch gleefully points out, Facebook is suing in part based on a patent filed with the work of a former Yahoo employee. Facebook is also suiing Yahoo for violating precisely ten patents. Anyone who thinks those are coincidences is not paying attention. This is how tech geeks call each other out.

It's also Facebook's way of saying "let's negotiate" - they're showing that they can bring weight to the table, which puts them in a better position to make the whole thing go away. Neither company can really afford this: Facebook does not want its multi-billion-dollar IPO disrupted and Yahoo can't afford to pay for a protracted patent struggle. Cross-licensing these 20 patents (and probably whatever else they've got lying around) would strengthen both companies' positions.

I also expect Facebook to throw Yahoo a bone, like paying their legal costs for this.

There, two servers were seized - servers alleged to be "the command and control computers of two Zeus botnets". As you may know, a botnet is a network of computers (usually PCs running Microsoft Windows) that have had vulnerabilities exploited to allow remote attackers to gain control. Once in control the subverted PCs are made part of a network (botnet) that can be used for a variety of illegal purposes, including DDOS attacks, spamming, spreading worms/viruses, and crack/infiltration attempts against other machines. Usually in a botnet each member PC operates independently but periodically checks with controlling servers for new instructions, updated malware, and so on.

So far this is standard security stuff, and Microsoft was working with Kryus tech which, according to a blog entry posted Friday, had reverse-engineered the botnet software to discover where its control hubs lay.

The Copyfight angle appears to be that Microsoft made the assertion (and presumably convinced a judge) that it was entitled to enforcement action against these Zeus botnet servers because one effect of the botnet was to "violate [Microsoft] copyrights and trademarks" by taking over the Windows PC. It's an interesting twist but one I haven't seen before.

I'm a little bit conflicted here - I don't generally think that ends (even good ones like silencing botnets) justify means, including potentially novel expansion of copyright and trademark enforcement. Looking back in history (e.g. see this story from Sept 2011) it appears that Microsoft has used other means in the past to move against botnets. So this may be a new tactic in their ongoing fight, or it may be just new-to-me. Does anyone know if this is truly a novel application of the law?

(Update: the Microsoft Digital Crimes Unit blog entry from yesterday has a bit more detail but does not touch on the copyright/trademark aspects of the RICO case.)

If you think that traveling with comics (or manga) isn't a big deal then you haven't been following the news these past few years. People have been stopped, denied entry, had their possessions searched and seized, and even been brought to trial over these kinds of materials. The rights you may have in your home country (particularly if you live in the US or Japan) may be very different from the rights you have on entering another country, even a democratic nation such as Canada or an EU member state.

The CBLDF page contains a set of links to guides on four specific topics, covering comic art, pornographic anime/manga, electronic devices, and US border privacy. Each is worth a read and as always if you have questions make sure you talk to a lawyer - these are advisory notices based on experience, not legal guidance.

As Scott Fulton explained for ReadWriteWeb, HBO managed to get itself known now for having a young college student handcuffed and dragged away by local cops. This student - Cristian Alvarez Rojas - is apparently accused of being behind a site called Cuevana.tv which itself is accused of being a violation of a relatively new (April 2010) local intellectual property law. Except that Rojas may not have broken the law because he kept the site's resources outside of Chile. The law may not cover this situation.

It's unarguable that Chile, like much of South America and vast swathes of Asia, does not have respect for American copyrights. Illegal copies of videos are sold in the streets or in cheap storefronts in Chile as they are in China. Police efforts to crack down on the retail end have proven largely futile. The argument, though, is that these street copies are made from downloads provided by sites like Cuevana.tv. Even though the site isn't making Rojas any money, if it is a source feeding the illegal retailers then it's clear why the Cartel would want it shut off.

But having a college kid dragged off in handcuffs is bad juju and horrible PR, regardless of how accurate or justified the reasons behind the action may be. Just like extraditing a kid from the UK is a terrible move but the Cartel seems bent on doing it anyway. Legally right != smart, guys. The people who are buying those street-copy DVDs are your natural customer base. Do you want them to think of you as 'the strong-armed gringos"? Do you think that being known that way will help sales of your legitimate product?

I certainly don't. But then I doubt anyone from the Cartel would ever hire me anyway.

This strange set of bedfellows comes from the just-decided patent infringement case known as Mayo Collaborative Services v Prometheus Laboratories, Inc; the patents in question are 6,335,623 and 6,680,302. The patents are fairly complex and detailed, but the infringement question seems straightforward. A good, if quick summary of what was decided today comes from Timothy Lee, writing for Ars, "Supreme Court saves medical profession from diagnostic patents".

Lee, who has written about this case for Ars before, played a small part in the Cato institute amicus brief, and is a strong advocate for the invalidity of the patents. I have not yet read the opinions in the case, but based on the summaries I believe I would have to side with Lee and the other amicus parties. To put it bluntly, this looks ridiculous on the face of it and it's not clear to me why the patent was issued in the first place, or why the lower courts upheld it.

The key issue appears to be that the Mayo Clinic decided to stop using Prometheus's product and started doing its own testing; in response Prometheus argued that in using the separate Mayo test doctors would still "[think] about the correlations described in Prometheus's patent" and that this would itself constitute infringement. SCOTUS disagreed, asserting that the activities of measuring thiopurine metabolites and from that determining appropriate drug dosages was, in the words of Justice Breyer, "well-understood, routine, conventional activity previously engaged in by scientists who work in the field." And thus, unpatentable.

Unfortunately, although I believe this decision to be correct, I do not think the verdict is going to do much to untangle the present snarl of what is or is not patentable in the US. It has become increasingly clear in the past decade that decisions such as in re Bilski have done nothing to clarify what ought to happen. Instead, the waters have gotten more and more muddied.

In the EFF Deep Links section earlier this month Kurt Opsahl posted a summary and discussion of one of the Nevada federal district court judgments against Righthaven.

The court rejected Righthaven's claim that online excerpting was copyright-infringing action, and also noted that a site which permits user comments is not automatically liable for material posted in those comments, even if the site is not a formal candidate for DMCA Safe Harbor provisions.

Righthaven is often referred to as a copyright troll for its practices of suing far and wide on dubious legal theories; for example, see this Boingboing post from last December on Righthaven. Courts have steadily dismissed and dismantled the company's claims and legal strategies and the company is now in (financial) ruins. Good riddance to bad garbage.

First, Nate Anderson reported last week that a student from the north of the UK would be extradited to the US even though there's no case against him in the UK and even though he hasn't broken any laws there.

Back in January the first reports I read of this story had me wondering what the hell was going on. Anderson's current report makes clear that it has nothing to do with UK copyright laws and everything to do with the Cartel's ability to get law enforcement internationally to do its bidding. I truly feel sorry for Richard O'Dwyer - being treated like an international criminal mastermind because he posted a Web site full of links is beyond ludicrous.

But lest anyone think that the Cartel has no sense of proportionality, I remind you that these are the people who invented Copyright Math.

The second story was highlighted on Friday by Cory for Boingboing, under the long but sadly accurate headline "RIAA prez twirls mustache in anticipation of taking on his role of Internet Witchfinder General". The gist of the piece is that the Cartel has used their captive Department of Justice and cowed your ISP into becoming its enforcement arms. If you do things they don't like, they'll cut you off from the net, or maybe they'll just slow your download speeds or drop your connection now and then. "Nice network you got there... be a shame if something happened to it."

Seriously, how fucked up is this? I think it's important to realize that "cutting off peoples' Internet access" doesn't just mean you can't download files. My kid requires the net to do his homework, which is posted by his schoolteachers on a series of blogs. My landline phone goes over my cable wire and is provided by my ISP. I doubt I'm unique in these things; Doctorow lists several other activities that modern life assumes people will have Internet for, such as banking and participating in political life. Losing Internet means losing all these and more.

I am reminded of a long-ago conversation Bruce Sterling and I had about his novel "Islands in the Net." The gist of it was the central thesis that access to the network was about to become like electricity - it's just assumed and you only tend to notice it when it's not there. I suspect that when the Cartel starts getting its way a whole lot of people are going to find this sudden absence troubling. Maybe if a lot of them are in the US Congress then we'll see some course-correction. But I tend to doubt it.

Casey Rae-Hunter of the Future of Music Coalition sent me an announcement of the FMC's case study publications.

For these studies, the FMC worked in depth with five people in the industry who make their living full-time with music. Using data provided by the professionals, the FMC then graphed and wrote up explanations of how money flowed in, from where, etc. As with any case study the results aren't necessarily broadly interpretable but it's nice to have some detailed data to go with the more general surveys we usually see.

This is sort of the canonical prior art: if you can show that an invention from a patent was in fact already known publicly then the patent can't stand. You can still patent new inventions related to the idea - for example, Apple's patent on providing word-by-word suggestions for auto-completion as users type is unlikely to be invalidated simply because someone described the general form and function of a tablet computer in 1994.

Yes, 1994. According to this nice summary piece by Michael Rosenwald in the Washington Post, that's when Roger Fidler put out a visionary video describing "a whole new class of computer". This video was actually a follow-up to a 1981 paper in which he described a machine with "tactile controls". In his vision the new class of computer would be thin, portable, lightweight, rectangular. You would do things like "press on a headline" to retrieve a full news story; at the time he worked for Knight-Ridder, a company which must now be kicking itself for its unwillingness to file patents based on Fidler's far-out ideas.

Still, Fidler's writings, videos, and demonstrations were public; the fact that they weren't patented doesn't lessen their potential value as relevant prior art. There's some chance as Rosenwald describes it that a good lawyer could show how Apple people were exposed to and potentially influenced by these ideas. Apple probably would still maintain the majority of its patent position even if certain design and foundational patents were invalidated, but its position would be significantly weaker. That may be why rumors are starting to float that Apple may want to settle. A settlement would foreclose the possibility of the patent portfolio being weakened and could leave Apple in a strategically stronger position than another partial win a full-length court case.

The meat of the suit seems broad - Yahoo is hitting at Facebook on ad generation, customization, and aspects of social networking such as creating news feeds, messaging, and managing comments. I haven't read the patents in question, but I wanted to comment on how the suit seems to be stirring up the geek community by looking at some items that appeared in response to the suit that gave me the head-scratching WTF pause.

In the first, Mark Cuban wrote a modestly titled blog entry hoping that Yahoo! "crushes" Facebook. In past blog entries, Cuban has not been shy about stating his opinions about patents and the needs he sees for patent reforms. So what's he up to here? Well he thinks that if Yahoo wins a huge judgment against Facebook that will somehow cause people to sit up and take notice and somehow that will cause a change in the patent system.

Uh... yeah. I don't even know where to start with that one. Even if the public somehow figured out what was happening, which I wouldn't bet on, what would they care if Big Corporation A pays Big Corporation B some money? It's not like anyone's Facebook pages are going to go away because of this. Facebook will probably pay up and may change some of their features to get around patent clauses, but honestly Facebook changes your pages so often and so arbitrarily that nobody's going to notice a few more changes.

Meanwhile, Gizmodo is screaming that "Yahoo Is Out To Burn Down The Web". Uh, guys? Facebook isn't the Web, however much Facebook would like you to believe it is. And if Yahoo's patent is valid and enforceable against Facebook then yes they may well try to enforce it against other sites. Which would be a tragedy exactly... how?

The article's author, Mat Honan is grotesquely misinformed about how patent protection works. He claims that "Facebook is built on its own unique codebase" which is probably true and completely irrelevant to whether or not they're infringing the patent. Let me 'splain... no, is too complicated, let me sum up: whether or not you wrote your own code from scratch isn't at issue here. What's at issue is what that code does. Also, Honan wails that if this is upheld then "Yahoo [would own] personalization outright." Oh, puh-leeze. Patents protect inventions; anyone who thinks Yahoo patented every single possible invention related to personalization is... wait, named Mat Honan? What does it even mean to "own" personalization? Get a grip, Mat, use your inhaler, take a Valium.

And finally we have Andy Baio writing for WIRED about how Yahoo "weaponized" "his" patents. Oh, cry me a river. First of all, his patents aren't at issue here, as he admits. (Though he's probably not responsible for the attention-grabbing headline on his column.) More to the point, Baio is whining that Yahoo actually got patents while he was there and even though he hates patents he helped them get some and now they're actually (*GASP*) using patents in an offensive way, not just in the defensive manner he thinks he was promised.

Let me find you some tissues. The very first lecture I ever attended on patenting in a corporate environment (at Texas Instruments in 1989 if anyone cares) covered the notion of "sword" and "shield" patents and how it was only a distinction of convenience. If you didn't get such information, or weren't motivated to understand what you were doing when you helped Yahoo apply for patents, my sympathy for you is precisely zero. No one is required to sue anyone in order for a patent to be valid (unlike, say, a trademark) but that option is always there.

As I noted about a month ago there's some debate over exactly what the best patent enforcement method is, but there's little doubt that patents play an extremely important position in the fight for dominance in global markets. Why Baio thinks Yahoo would behave any differently than Apple (or dozens of other high-tech companies) is a mystery to me.

Yes, it sure would have been nice if Yahoo could have turned its innovations into wildly financially successful products so it didn't care about who was using its patented inventions. But it didn't, and it does, and these suits are just part of the death throes of the company. Perhaps one day all that will remain of Yahoo will be a few patents that have been upheld in court and that someone will pay money to acquire. So it goes. Between then and now it'd be nice to see less hysteria and more clear-headed analysis on the topic.

The live launch includes a "90 days free" enticement, but is limited to web-enabled iOS devices only. They promise Android support "coming soon". 20 channels, 40 hours of DVR storage, and the ability to use the service on up to 5 devices.

Contrary to my initial impression the customer doesn't buy an Aereo antenna - instead they connect to the company's antennas over the Web, with no new physical devices in or on the consumer's home. In addition, you don't have to install a new app - apparently you can connect using the built-in iOS media-viewing software. After the 90-free, the service costs USD 12/month and is geographically limited to New York television marketplace. It's not clear from the press release if that means the physical limits of the city or whether it'll be available to people outside the area who can receive New York City broadcast channels (about half of New Jersey and Connecticut I believe).

If anyone tries out the service please do leave a comment with your impressions.

In this corner, the smackers: authors Joe Konrath and Barry Eisler. In the other corner, the smackee: Scott Turow, President of the Author's Guild, and his "Grim News" blog entry.

What is this grim news? Why, it's the likelihood that the DOJ will file a collusion case against Apple and the big publishers. This is "grim news" because Mr. Turow is in charge of a big club for very big authors, which is likely to be on the receiving end of this legal case. If I was him, I'd be worried too.

You may recall I blogged about Konrath's claim that he garnered $100,000 in profits from his e-books in January of this year. Obviously he's someone heavily invested in Amazon's publishing model and as we discussed, he's also someone who pays careful attention to prices and how an author can maximize income by carefully discounting and tracking the effects of deals on sales. The agency model for pricing, which is at the heart of the collusion case, is just about the opposite of that - it handcuffs retailers and gives pricing power to the agency partners - the aforementioned big publishers. You can imagine this as being the digital equivalent of a poke in the eye for guys like Konrath and Eisler, and they have some choice words in response.

In a blog entry titled "Barry, Joe, & Scott Turow" they go line-by-line through Turow's dire news and translate it into more or less plain-speaking English. For example, where Turow sees Amazon "destroy bookselling" they point out that lowering prices tends to increase sales and in general selling more books is (should be) what publishing is about. They go on at some length - you should read it for yourself. They're pretty contemptuous not just of Turow and his blog post, but of the whole big-house/big-author publishing business and its failures to anticipate, react, or adapt to the sea changes introduced by self-publishing and e-books.

As noted, Konrath and Eisler have a lot of skin in this game and their biases show heavily. They act as if Amazon has done no wrong and gloss over or ignore a lot of bad history. For example, I have no sympathy for many of the moves Amazon has made to hurt physical retail outlets directly rather than by out-competing them, nor do I like the way Amazon has used customers as pawns in its games. And I'm certainly no fan of Amazon's lock-in plans.

But those are problems that need to be dealt with openly and head-on, not by some (potentially illegal) back-room deal. Remember that the big losers in these collusion situations are the readers who are getting swindled. And if DOJ puts a stop to that then more power to them, I say.

(h/t +Fred von Lohmann for the original pointer)

In the column, called "The Down-Low on Exclusivity Clauses", Long talks about Amazon’s KDP Select program. This program, which Amazon introduced at the end of 2011, allows authors to sign up to have their books placed in the "Kindle Owner’s Lending Library". This (virtual) library allows Kindle owners to "borrow" one book per month. That is, they can download a free copy with no due date of any book on the list. Since the reader doesn't pay, Amazon has offered an enticement to e-book authors to have their books in the library. Amazon will put forward a pool of money and each time a book is borrowed the author of that book gets something from the pool.

According to Long's column, in January authors were getting USD 1.60 per borrow. That's not much, but it's not a huge amount less than most authors get on e-book sales, and in theory the author can get borrow money on top of royalty money. That's the upside. The downside is exclusivity. If you're being borrowed on a Kindle then you can't be read on other devices, including Kindle apps that run on other devices. In effect, you're agreeing to have your book locked to one device in order to help Amazon sell more devices that will (work with me here) further lock in readers. Awesome.

As usual in these sorts of situations where an author sits on the publicity/popularity curve says a lot about how good this deal is. If you're a New York Times bestselling author then your readers are likely all over the marketplace and single-device lock-in is bad for you. If you're an unknown and need to build readership numbers, then the extra publicity of being in the library may be a boost. But then again, what do you do if your unknown book turns into a hit and readers can't get it elsewhere? A new author may be crippling her audience reach by agreeing to this lock-in, without even knowing what the potential reach of that audience is.

Long tries to end her column on a balanced note; as she says, the situation wasn't exactly a rose garden in the days before e-books. Perhaps that's her professorial (she teaches at Boston College) fairness showing through. Me? I have only sympathy and faint contempt for people who feel they need to buy into someone else's exclusive locks. This may be why I don't own an e-book device myself.

The article is titled "15 Copyright Rules Every Student Should Know" and is credited to "Staff Writers", of which I have to assume Ms. Hall is one. Encouragingly, the first topic in the list is "Fair Use." Readers are instructed that fair use and educational purpose provide some exemptions to copyright restrictions and imply that sampling is fair use. This is, of course, something that is still contentious in several legal arenas but for the non-commercial purposes of educational materials I suspect most people will expect that student works don't violate copyright. It's heartening to see fair use as the first topic.

Later items in the list note that sampling even from DVDs and public sources can be covered by fair use, but encourages students both to check use guidelines that may be published with a work they want to sample, and to provide appropriate credit. Again, both are key topics and students need help in treading a middle ground. Wholesale appropriation is often doubly inappropriate in an academic context where plagiarism and other forms of intellectual theft can be a problem. The article tries to give numeric estimates for what would be considered an appropriate sample (250 words, 30 seconds of music). Again, I think this is well-intentioned but probably should be tempered by encouraging students to consider contexts. If I'm using a 30-second clip of sampled music as, say, a background to a video I've created that's a different thing than using a 30-second segment of someone else's music in my own composition. Unless, of course, it's a remix... well, you see the problem.

I think this is a challenge not just for Ms. Hall's list, but for any set of guidelines. Copyright fluency is an important skill for students to learn and one set of guidelines is a good start - I like this set overall. Even with a good set of guidelines, I can't help feeling that strong cautions should be given to students who may feel that one set of guidelines teaches them everything they need to know.

None of the issues have changed: patents are still a government-created monopoly that is limited in some ways and very broad in others. Drug companies still use patents to ensure they have monopolies on money-making medicines. And people still need medicines in order to stay alive with serious conditions such as HIV/AIDS or in this case a particularly nasty form of leukemia.

As Vikas Bajaj and Andrew Pollack wrote in The Times this week, a case has slowly wound its way through the Indian court system around drug giant Novartis's patents on a medicine known as Gleevec. This medicine treats one of the most deadly forms of lukemia and like many life-saving medicines it has been remade as a cheap generic by companies in India and elsewhere. The purpose of the suit is to force the government of India to recognize Novartis's patent as valid in India and thereby shut down the production of generics - which would be in violation of this patent if it was recognized.

Of course it's not just this patent that's at stake. If the Gleevec patent is recognized then the law under which India has barred recognition to a whole host of drug patents will fall, and those generics will go away. And it's not just India - the US and the drug lobbyists are so afraid that other countries might follow India's lead that they've begun high-pressure moves in trade negotiations to prevent this from happening.

It's worth noting that India's law is not a wholesale blind invitation to piracy. What the law says is that you can get a patent on a new drug, but you can only get a patent on a modification of that basic drug if you do something that improves its efficacy. In the US you can get patents based on slight reformulations, or patents to cover different delivery methods even though the underlying drug remains identical. So while it's clear that US and Indian patent laws differ, it's not obvious to me that one is inherently superior.

I've never been shy about where I stand on this sort of thing and my position hasn't changed. I believe that the patent monopoly power ought not to be absolute, that a new equitable bargain should be reached, if the damned drug companies will stop blocking it. Indian law may be too restrictive in that companies would not be properly enticed to spend the money to develop better delivery systems or refinements if they can't be sure it would meet some (currently undefined) standard of efficacy improvement. But we must weigh the lifesaving necessity of cheap versions of these drugs against the business needs. Right now, particularly in the US, the scales are tipped over far too much to one side. Let's hope India doesn't end up the same way.

Or maybe not. The WSJ reports insider sources as saying that at least some of the publishers may be in settlement talks. Visions of what a settlement might look at vary but there seems to be general understanding that the publishers would prefer to modify their agency pricing scheme rather than give it up. Quel surprise.

First, a bit of background. Gillmor has been working in various aspects of journalism for 25+ years. I first started reading him in the late 90s when he was working at the Merc and its online site siliconvalley.com. He's been a businessman, teacher, and investor in the digital media space for approximately as long as that space has existed within the US media landscape. Gillmor has never been passive - he was one of the first "establishment" media figures to realize that personal passion counted for something extra in the digital media space and he does projects he believes in.

Right now, what he believes is that we (the media-consuming public) need to make better choices. More informed choices. More active choices. In an effort to spur that he is both walking the walk, and creating the Permission Taken project, a project dedicated to "help[ing] you make your own decisions" on technology, privacy, and rights.

The project currently exists as a public Google doc - anyone can read it and comment either anonymously or if they have a Google account they can log in and be named. It reads a lot like an early-stage book proposal and it's clear there's a ton of work to do. Of course there will be at least one accompanying Web site, but there's also the possibility that Gillmor will take this crowdsourcing thing seriously and farm out pieces of this to others who would build micro-sites or related sites to extend beyond what can be contained in any one book/site.

The topic itself is centrally important to Copyfighters. Gillmor is quite up-front about the fact that using Google and gdocs represents a compromise. He describes how he's unplugged himself from the "church of Apple" in order to get some more freedom and control, but that no ideal solution exists. Each choice is some sort of trade-off and the project's purpose is not to steer a purist agenda but rather to make conscious trade-offs and guide other less-technical folk in making similar decisions.

It's a hard row to hoe. I've been vocal on Google+ (feel free to read my own stream and circle me there if you wish) about how I would like Google to stop racing Facebook to the bottom of the privacy-invading cesspit. Like Gillmor I think Google-flavor evil is less bad than Apple-flavor evil or Facebook-flavor evil but neither of us is blind to the fact that all these companies act in evil ways sometimes. Mottos notwithstanding, all of them are public companies with legal obligations to make as much money as possible and that's what they do.

In that spirit then, I'd encourage my readers here to join in the discussion Gillmor is opening, to follow the project as it unfolds, and let's see what comes of it.

As Rip Empson explains in a lengthy opinion piece for TechCrunch, Aero's business model is narrowly and painstakingly tailored to fit through what it believes is a viable exemption to copyright restrictions. Here's how it works: courts have ruled that in cases where the end consumer does everything - selecting the content, recording it, reviewing it in-home and privately - the activity is legal. This was the basis for the recent case known as Cable News Network v. CSC Holdings in which Comcast was able to offer what it called a "remote DVR" service. Instead of having a DVR in the home (which is legal) Comcast argued it was simply providing remote server storage and controls to do the same thing. Since the activity wasn't infringing, courts held that Comcast's service wasn't infringing.

What Aereo proposes to do is allow its customers to tune in to any one at a time of 20 local broadcast channels. The channels will appear on any of the consumer's Web-enabled devices by means of a special antenna they'll rent from Aereo. This may not seem like a big deal, but it is something that has been sought after for a while by people who want to "unplug" from their TV and take the programming with them. As in the Comcast situation, only one copy of the information will ever be made per consumer and the acts of selection, storage, and streaming will all be under the consumer's control. Thus, the reasoning goes, it ought to be legal.

Of course the broadcasters don't want anyone bypassing them, and they're suing Aereo despite the company being backed by one of their own: Barry Diller, who is credited with (among other things) the creation of the Fox and USA broadcasting networks. Sadly I agree with Empson that the most likely outcome for this case is that it'll be bogged down in courts for so many years that the company will run out of money or the whole landscape will shift and moot the case.

The entire contents of the book are available in DRM-free format under Creative Commons licensing that permits reuse and adaptation. I've been interested in wicked problems since listening to Horst Rittel describe them in a 1986 talk. These problems are particularly hard to solve, not least because they tend to be unique and because how you define a wicked problem already starts to change the problem. One of the things that makes Kolko interesting is that he doesn't shy away from the tough stuff. This book should be great reading.

Apple did not win on all the counts it brought, so the victory is not complete but it definitely is significant. Motorola will have to engineer around the patents and will be further hampered in the products it can bring to market. The story doesn't end here - two more court judgments are due in the near future that could spell additional trouble for Motorola and of course for Google, its future owner.

As I noted in response to Mueller's article a couple weeks ago, it really feels like Apple is trying to use its patent position to knock out any possible competition in smart-phone and tablet mobile devices. It's always possible that Apple's competitors could completely re-think the interfaces and interactions to their devices (see what Microsoft is doing with Windows 8 UI) but such new paradigms aren't developed overnight and in the current rapid-expansion phase of mobile devices, it's quite possible that the time it would take to develop a wholly new UI would be too long for Android devices to regain a significant foothold in the market.

Specifically, Elsevier has withdrawn its support for RWA, the Research Works Act. The Act would have prohibited open access to much federally funded research, reversing long-standing policy of many federal agencies that fund a great deal of the scientific research done in the US. Of course, this would have benefited publishers such as Elsevier, who would have become the sole (expensive, for-pay) conduits for this research. Without Elsevier's support, the bill appears dead.

In his post, Doctorow posed the question of "whether paying Elsevier is the best way to do science and scholarship." I think that's something of a rhetorical flourish as he (and anyone who works in the field) knows, the scientific and technical publishing machines are at best necessary evils. I confess I was wrong in thinking a boycott threat would not be effective, but I still believe that in order to get any real change from the publishers, academics will need to do a lot more soul-searching and changing of how they conduct important business such as tenure review cases.

On the one side, which I will call the Copyfight side, Boingboing pointed me to The Internet Blueprint. This is a Public Knowledge-backed site for proposals for US Congressional bills that would actually improve the state and function of Internet regulation. I know, two days ago I was writing that we ought to focus on making the existing laws and regulations work properly first, and today I'm going to cheer on efforts to design new and better laws. Mea culpa I guess.

In my own defense I'll say that many of the proposals here are intended as legislative fixes to things that are broken with the current system. As I write this the top two listed proposals are "Curb Abuses of Copyright Takedowns" and "Ensure Openness in International IP Negotiations." Each proposal on Internet Blueprint comes with a more or less plain-language explanation and proposed legislative language; for example the Curb Abuses proposal bill starts off with language that specifically targets Section 512(f) of Title 17. Congresscritters who sign on to proposals can be listed as "Champions" for that proposal.

Internet Blueprint is looking for people to submit proposals, to sponsor existing proposals, and to have people use the site as a way to communicate with their legislators who might be willing to sponsor an idea into legislation.

On the other side, which I will call the Looney Up the Cream Bun and Jam side, Michael Geist yesterday blogged an extensive list of just about everything insane related to Canda's C-11 bill. I mentioned a few weeks ago that it seemed the Cartel had learned nothing from the defeat of SOPA/PIPA and boy does this bill ever support that notion.

In C-11 the Cartel is asking for liability provisions to shackle social media sites, liability for Web search engines, liability for any site containing user-generated content, a tax on iPods (yes, really), copyright term extension ("To infinity and beyond!" they might have yelled except that's probably a trademarked phrase), and a removal of protection for parody and satire. Which probably means I can't make more snarky Toy Story or Monty Python references if they get their way.

As Geist points out, all these new demands are on top of the fact that C-11 contains everything bad that was in SOPA/PIPA, plus massive damages for non-commercial individual infringement. Post a video of your kid lip-synching to a pop-music tune and you too can be fined CA$ 20,000 (yes, really). When Nate Anderson wrote that he expected the Cartel to try taking smaller bites of the pie, he must not have been looking north of the border.

What this boils down to is that yes, there are ideas floating around for how to make things better. As I've argued before, trying to improve the legal regime around copyright is not the same as trying to remove copyright protections. What seems clear is that ideas for improvement are not going to come from the Cartel, at least not until they suffer a few more drubbings.

So if the answer isn't "publishing houses" then who are the new gatekeepers? Turns out they're the big names in e-commerce: Apple, Amazon, and PayPal. Let me point to two stories that illustrate the new reality.

First, a story that hit the wires this week (here well summarized by Violet Blue for ZDNet): PayPal has decided you shouldn't read smut it doesn't like. That's right, the company is forcing its merchants that publish and distribute e-books to censor - that is, prevent you from buying through PayPal - books of a certain adult nature. As Blue explains, it's not naughty words that PayPal is objecting to, it's the kinds of stories told in the books. Try to let that soak in for a moment: the dominant online payment processor feels it has the right to tell you and me what sexual fantasies are acceptable, and which are not. Say WHAT?

And lest you think it was only PayPal that engaged in this sort of controlling behavior, let me direct your attention to today's Domino Project column from Seth Godin. In the column, he explains that Apple has decided it will not carry his latest book because that book contains links to Amazon.com listings for other books. Apple presumably feels this might cause some readers to buy those books from Amazon and this might somehow hurt Apple's business? Maybe? I dunno, I'm grasping at straws here.

We've already covered how Apple is using iBook 2 to lock in writers. And we've already covered how Amazon is using its ability to yank content from its listings to strong-arm independent publishers. Feel free to jump back via those links if you missed the first go-round.

What this adds up to is a picture of a broken system. The notion of a book store (or bookstore, if you prefer) as a place to get books has not just been transferred into the digital realm, it has been wholly disintegrated. In this century any corporation can stick its fingers into the stream and pluck out things it doesn't like, divert the flow away from you, and play favorites with its own content to the exclusion of all others. What should be incredibly liberating technologies (print on demand, self-publishing, electronic books) instead become the means for recapitulating the worst behaviors of the previous technology (payola, pay-for-placement).

Rather than stacking up several Blink entries I'll roll them into one, thus:

In response to the decision by Amazon to suspend sales of IPG e-books, SFWA is now directing visitors to its Web site away from Amazon. Best quote: "[W]e would prefer to send traffic to stores where the books can actually be purchased." Oh SNAP!

Scalzi has an update on his "Whatever" blog to the story about Cudo and massive copyright violations. This involves them saying "Oops! Sorry about that!" and trying finally to do the right thing, such as not distributing the CD. Scalzi appears to be in agreement with Hanlon that one should not attribute to malice that which can be explained by stupidity. But just barely.

Finally, Paul Tassi has a new column up on Forbes about Hollywood's plans to use gaming-style DRM for its HD movies. As he explained last time around, Tassi believes that the money would be far better spent in creating high-quality user experiences. Gamers have complained about many of the effects of DRM such as requiring multiple logins and always-connected networked machines. If Hollywood thinks throwing up this kind of obstacle is a recipe for anything other than more viewer frustration they are continuing to live in a different universe.

First up, John Scalzi put up a "Whatever" blod entry expanding on a story from Metafilter about Cudo. Cudo is an Australian bargain seller, which is offering an AUD 99 package for an e-reader complete with a CD-ROM full of books to load onto it. Great, except they probably don't own the rights to distribute those e-books. We're not talking about public domain works, here. These include hundreds of titles that Scalzi (President of the SF Writers of America) recognizes as belonging to active SFWA members. Seriously, this is "200-proof stupidity" to use Scalzi's phrase for it.

On the flip side was have Techdirt reporting on how important Google search results related to SOPA/PIPA reporting had been blocked out due to a bogus takedown notice. Although the post has been reinstated, it appears that the notice was a targeted action by a company named Armovore whose sole purpose is to send out notices on behalf of others. Given the target of the notice, the timing, and the complete lack of relevance to the claimed infringement, it's hard not to see this as a grotesque attempt to block people from reading things that Armovore's Cartel masters don't want them to read. When a government does it, that's censorship. When private companies do it... can we bring a case for fraud and civil damages at least?

There are a whole raft of problems here, not least of which is the hidden nature of things. Techdirt had no idea its content was being blocked - they only found out by accident. I'd bet that the vast majority of authors whose books are on Cudo's CD have no idea about it either. The second problem seems to be that nobody is applying any thought to these processes. How hard is it to ask "do we have the rights to these books?" or "do you own that copyright your'e claiming is being violated?"

It seems to me that the process is broken and people are not following the laws-as-written. How about we focus on fixing what's on the books and in operation already before we go passing more new laws and further restrictions?

In a long thought piece published today, Anderson goes point-by-point through Sherman's latest post-SOPA salvo. Sherman published an item on the RIAA's blog in which he reviewed the (massively negative) feedback he got in response to his NYTimes op-ed. The original op-ed was addressed to SOPA's critics and used some pretty harsh language while supposedly asking for serious dialogue.

Anderson's response to Sherman's blog post is nothing less than heroic. He points out that he is himself a creator, dependent on publishers, copyrights, and all the associated mechanisms to make a living (shades of Wales and Walsh) and then brilliantly deconstructs pretty much everything Sherman has to say.

Anderson also doesn't mince words, calling Sherman's piece "absurd" at points and "quibbling" at others. Crucially, and this is where I think he hits his best home run, Anderson notes that Sherman still is not engaging with the substance of the anti-SOPA/PIPA/ACTA objections. The full-on "no, stop, wrong and here's why" that people all across the spectrum put out in the run-up to the blackout and withdrawal of SOPA seem not to have penetrated Sherman's reality, leading Anderson to conclude that Sherman's claims of defenselessness are "poppycock".

I found Anderson's final section "The path ahead" particularly interesting as an exposition of how Anderson sees the next rounds of the Copyright Wars. As I've noted recently, it feels like we've broken out of a grinding trench-warfare status into something new and potentially much more fluid. Anderson thinks that the Cartel will continue to fail to understand its customers and their anger and so will try to move behind the scenes into lobbying and biting off smaller chunks of the legislative and regulatory pie, hoping for less negative publicity and greater success.

Who was it said that the price of liberty is eternal vigilance?

Jim Hines, whose blog entry I referenced last week, has a new post up detailing yet another bit of obnoxious meddling in authors' self-publishing efforts. According to the post "Who Controls Your Amazon E-book Price?" the answer is Amazon, and you can't do jack about it.

Last time the issue was Amazon hosing e-book readers as part of its war with publishers. This time it's the customer who gets the good end of the deal and the self-publishing author who gets to suffer. The reason is that Amazon not only controls the price you pay for a self-published book but in doing so it controls the royalty it pays the author. If you are someone like Hines and price your book at USD 2.99 then you expect to get royalties based on that price.

Certainly that's how it works with books published by a standard publishing house. Amazon, like any retailer, is free to change the cover price - often by discounting - but it still pays off the publishing house as if it had sold the book at full price. However if you are self-publishing through Amazon then it has sole discretion to discount your book AND pay you royalties based on the discounted amount. Ain't that grand? No one can argue that this isn't part of the Amazon Terms of Service, though the language does seem to leave them a great deal of wiggle room. I am reminded of the blog post from mid-January about Konrath making $100,000 and how necessary it is for him to manage his pricepoints actively, with experiments and data gathering.

As Hines says, "Sometimes going it alone sucks". Major publishing houses may not be the greatest institutions in the world, but they do serve a number of useful purposes. If one is going to self-publish, one really needs to police every step of the process oneself.

(h/t Cory & Boingboing for the original pointer.)

In a brief blog entry titled "Oatmeal, McGuire, and Entitlement", Hines relates the story of fellow author Seanan McGuire who was apparently subjected to a great deal of abuse because readers were disgruntled that the e-book version of her latest book didn't appear until two weeks after the print version.

Hines avers that he is no fan of DRM, and agrees that HBO is making a mistake with their marketing. However, he takes umbrage at what he sees as entitlement on the part of fans: that sense that they ought to be able to acquire what they want, when they want it, in the formats they desire, so long as they're willing to meet the stated price. Err, um, yeah. And no.

Hines is right - nobody is entitled to buy anything, and certainly there's no cause to attack someone who isn't even at fault for your inability to make an instantly gratifying purchase. But he's also wrong, in that entitlement, or instant gratification, is the major motivating force behind virtually all electronic commerce. The vast engines of marketing and media and expectation have been pushing for the last couple decades toward instant gratification, instant fulfillment, always-on, 24/7/365 shopping. We made of Mammon a god, and you are surprised when his thwarted worshippers rage?

People didn't just up and decide overnight that they were entitled; they have been trained into it over and over. It's not a unique attitude, it's a carefully cultivated outcome of the modern consumerist society. You may not like it but it's hardly surprising.

(h/t +Kee Hinckley for the original pointer)

Earlier this week Cory pointed on Boingboing to this piece by Michael Calder on the PublishersLunch blog. In it IPG (Independent Publishers Group - the second-largest independent book distributor in the world) reports that Amazon presented IPG with a new contract and when IPG didn't go along, Amazon yanked all IPG-distributed ebooks from its Kindle store.

Hey, no problem, Kindle users, you can just move your ebooks over to a Nook, right? And continue buying your independent tiles over there, right? Wrong. Don't get me started. You, dear e-book readers, are screwed. You are locked in, locked down, and at the mercy of every sand-throwing bit of childishness that the e-book world can devise. Amazon didn't yank the physical books; had it done so we could trivially get them from another seller. But since those Kindle bits are DRM-locked you can't do anything with them that Amazon doesn't want you to do and moving your reading to another e-book reader is probably #1 on the list of things it doesn't want.

You can read Cader's column for the details if you care. The gist is that Amazon wanted better terms for itself and it's now holding every Kindle user's book purchasing list hostage until it gets what it wants. I don't actually have an opinion on which side is right in this latest stupid dispute. I just wonder why anyone pays hundreds of dollars for an e-book reader so they can put up with this shit.

The comic shows a fanboy who has just finished reading the George R.R. Martin book and wants to see the HBO series based on it. He's hip, with paid subscriptions to sites like Netflix and Hulu, as well as iTunes and Amazon accounts and... he can't get what he wants. Even going to hbo.com just leaves him frustrated. So what does he do? He torrents it.

The user experience is something I've talked about many times here on Copyfight (see here, or here for just two recent examples). I make my living creating user experiences and it's stunningly clear that the Cartel does not understand my domain of expertise at all.

One reason the Oatmeal comic works so well is that its message is simple:

Dear HBO.
The purpose of having a digital version of "Game of Thrones" is not to try and sucker more people into buying your crappy cable channel subscription. It's to make money by giving them what they're looking for.

Today I'd like to point at two more thought pieces, both of which take on the theme of "who". First, there was a piece on BBC Tech last week from Rory Cellan-Jones, asking "The internet is angry - is it winning?"

Cellan-Jones notes that the large-scale protest venue jumped from the US (anti-SOPA/PIPA) to Europe (anti-ACTA) and that if one is to judge by the size of the visible crowds, the impact isn't evenly distributed. London's visible protestors numbered in the hundreds where tens of thousands of Europeans took to the streets in each of many cities. Cellan-Jones's primary point seems to be that even though Western governments have changed in the face of Internet protests, more authoritarian and recalcitrant regimes haven't. Therefore we're not 'winning'.

Say what? Oppressive regimes don't change in the face of peaceful mass protests, nor in the face of armed rebellions. Just ask the thousands of Syrians... oh wait, you can't, their government murdered them. Seriously, now, what does Cellan-Jones (and similar nay-sayers) want to see?

On the positive side, we have techno-social optimist Jimmy Wales and Kat Walsh (of Wikipedia fame) writing in the Washington Post, "We Are The Media And So Are You".

Wales and Walsh hit hard on the theme of creators, something I noted yesterday. They say:

Wikipedia is not opposed to the rights of creators — we have the largest collection of creators in human history [...] providing unrestricted access to the world’s knowledge. Protecting our rights as creators means ensuring that we can build our encyclopedias, photographs, videos, Web sites, charities and businesses without the fear that they all will be taken away from us without due process.

What an interesting new idea.

(apologies to Professor Post for punning thus on his name)

David Post took his Justia piece I mentioned last week and expanded on it for his regular venue, the Volokh Conspiracy.

In the expanded piece he both broadens and deepens his critique of SOPA and what has gone on around and since it. He continues to write for a largely legal-oriented readership, but don't let that discourage you. His analysis is thorough and worth keeping in mind as we move into the next phase of this war.

I wanted to pick one thought from his conclusion for my own comment. He writes:

Copyrighted works are important, culturally and economically, and they are worth protecting. They are not, however, sacred objects that we should protect at any cost.

You may recall around the end of last year it appeared that Apple was in a world-wide patent war against Google's mobile OS and its incarnation on various devices primarily produced by Motorola and Samsung. Apple didn't seem to be making much headway at first, failing to get injunctions and having some problems with counter-suits.

That may be about to change, at least in the US. A few days ago, Florian Mueller published a long piece on his FOSSPatents blog detailing Apple's latest salvo. Apple is asking for a preliminary injunction against Samsung's Galaxy Nexus, the flagship product in the most recent line of Android releases. Mueller covers the maneuverings in the US cases so far - Apple's first suit hasn't gotten them the injunctive relief they wanted and is on appeal, and most importantly Apple's new lawsuit is based at least in part on four patents that haven't been brought into the fray yet.

Mueller's opinion is that these patents, three of which issued only recently, are quite strong. I have read them over and I must say that I'm impressed. Even though they're 2011 issues they have filing dates of 2005 and 2004, and incorporate patents granted during those years. They also have a truly impressive array of both patent and non-patent prior art cited, some of which goes years back from the patent filing date. If the USPTO allowed these patents in the face of all the listed prior art it will be a real challenge to invalidate them. It will be interesting to see if Google & co try that approach. Of course they will argue that their products don't infringe the patents anyway, but that's also going to be a tough case to make, as Mueller details.

An alternative would be to try to code around them. For example, the '172 patent describes a fairly specific interface for providing word-by-word correction/suggestion as users type:

in a first area of the touch screen display, displaying a current character string being input by a user with the keyboard; in a second area of the touch screen display that is between the first area and the keyboard, displaying the current character string or a portion thereof and a suggested replacement character string for the current character string on opposite sides of the second area; replacing the current character string in the first area with the suggested replacement character string if the user activates a space bar key on the keyboard; replacing the current character string in the first area with the suggested replacement character string if the user performs a first gesture on the suggested replacement character string displayed in the second area; and keeping the current character string in the first area and adding a space if the user performs a second gesture in the second area on the current character string or the portion thereof displayed in the second area.

However, the '604 patent appears to be extremely broad and covers a fundamental technique for finding, ranking, and displaying heuristic search results. Again, I'm no lawyer, but I don't immediately see a way of coding around this patent without losing core functionality not just for Google mobile but for Google's entire search business.

Given my recent note about how patent infringement should be enforced, it's interesting that Apple is aggressively pursuing injunctions. In effect, they're trying to knock out their biggest competitor, and likely no amount of monetary settlement would dissuade them from this plan.

However instead of retreating and licking its wounds the beast pressed back on all fronts, from Chris Dodd talking tough in the US, to C-11 in Canada, and the world-wide threat to liberty that is ACTA. Herewith, then, three perspectives to help you keep the situation in view.

First, techdirt lets us know that the Cartel still hates us all. Contrary to people who said that the Cartel might have learned something, or been the least bit humbled, or come around to the idea that talking before legislating was a good idea... nope, none of that. techdirt dissects, piece by piece, the screed published in the NY Times by Cary Sherman, head of the RIAA. You can read the detailed point-by-point there; I'll just say that an organization which has dedicated years and lost millions of dollars suing its customers is just not going to change its tune overnight.

Second, Tech Review has an interview (which I saw linked from Boingboing) with Aaron Swartz. This is a man who has made a name for himself in the tech world many times over: helping to create the RSS 1.0 standard, helping to found Reddit, and most recently getting in trouble allegedly for using a network closet at MIT to grab more or less all of the JSTOR online database of academic journal articles. If you haven't heard of Swartz's name in connection with the anti-SOPA movement that may be because you (like me) weren't paying attention to SOPA back in September of 2010 back when he was circulating one of the first petitions to raise awareness of and opposition to the bill.

The Swartz interview ends up being somewhat light, and steers clear of his current legal troubles. He does point out, as others have, that the Writers Guild is one of the few organizations in Hollywood that seems to 'get' the Internet, in part because the protracted strike forced many of them onto the net and they've begun to see how they can make money there.

Finally, Prof David Post - who I've blogged about before as a staunch opponent of Internet-killing legislation, has a piece up at Verdict titled "SOPA and the Future of Internet Governance". Post's piece is aimed at the not-necessarily-activist readers of Justia, who are themselves often lawyers or the legally curious.

As an intro piece, Post's article probably doesn't contain any new material for those who've been playing along this whole time. He doesn't mince words, though, calling SOPA "outmoded, unworkable, and unjust" and stating categorically that "SOPA Undermines the Rule of Law" in discussing things such as SOPA's proposed ex parte proceedings. Such language is not just rhetorical flourishing: Post is advocating for a rule of law that promotes and protects freer and more open interchange on the Internet, and reaching out to a potentially large and so-far untapped audience.

Like it or not, legislation is often written by lawyers - both Congresscritters and legal people on their staffs - and lawyers often testify to Congress about bills that are under consideration. If more of the legal community can be motivated to understand and oppose bad legislation, particularly in an era when too many in Congress freely admit they don't use and don't understand the Internet, then this sort of advocacy is sorely needed.

I've done something I rarely do: I've gone back and re-edited the entry from the 10th on "How Should We Enforce Patents?"

I realized the version that got posted was poorly edited to the point of near-incoherence. Hopefully this version is clearer. I have not changed the intent or links of the posting, just cleaned up the middle paragraph.

I apologize for the crap posting and will try to be better about self-editing.

You can download the full PDF of the article from the SSRN URL above. The simulations they report on this time compared property rules against entitlement rules and found that (contrary to expectations) the liability rules performed better.

Background: An entitlement rule is one that tries to examine situations where two sides' fundamental rights are in inevitable opposition (e.g. the right to perform an activity that is noisy versus the right of neighbors to have a peaceful silence) and determine who is entitled to their activity or condition, imposing limits on the other party. Entitlements are generally protected by property rules in US law. Liability rules, by contrast, only give the opposing parties the ability to seek a civil case (sue) which of course comes with large up-front costs. To oversimplify vastly it's the difference between calling the cops and calling your lawyer when you're looking for help. Wikipedia, as usual, has a much more detailed explanation.

Tomlinson and Torrance argue that US patent law has recently witnessed a shift away from property rules and towards liability rules and that liability rules do better in terms of promoting innovation. This shift stems from the eBay v MercExchange Supreme Court case in 2006. As a result fewer companies are getting completely enjoined from producing products; instead, they're getting hit with financial judgments. Tomlinson and Torrance construct computer simulations and do human experimental trials to see which way of doing things has better outcomes. Though we tend to think that the lawyerly mess around infringement suits and counter-suits and expensive settlements is a bad regime, it seems like it performs better than the alternative, injunctive, method.

It's an interesting idea, suggesting that the 2006 decision would stand up to the "Breyer test" in Golan. It may also support the general trend to settle rather than fight in patent cases - if companies believe that the end of a (long, expensive) trial is going to be a monetary judgment anyway then it makes sense to take a cheaper settlement deal earlier on.

The Cartel would like to say "No!" However, a New York judge has said "Maybe." And "Not so fast!"

Quick recap: "First Sale Doctrine" is a uniquely American exemption to copyright, which says that if you legally bought a copyrighted work you are permitted to resell it. The exemption has been narrowed in recent years and it's interesting that this ruling was made in the Second Circuit, which we learned last September had issued a horrible ruling blowing a huge hole in first sale for books. Other cases have attacked first sale as applied to used video games, CDs/DVDs, and other electronic media.

The case at hand, as reported by David Kravets for Ars, has been filed against the company ReDigi a new start-up that began operating late in 2011. The company bills itself as a "modern" used-music store, which allows people to list for sale (or seek to buy) lawfully purchased iTunes MP3s.

ReDigi appears to have gone to some lengths to shield itself from becoming a platform for unfettered (and probably illegal) trading. For example, you can't rip tracks off your CD and list them there. In Kravets's WIRED piece on the start of the lawsuit he details a bit more of how the company works to ensure that only one registered digital copy of a track is made and kept. Once you put the tune up you can't access it on your iTunes anymore and once the buyer has paid, no copy of the track remains in the store's servers.

Of course none of this is good enough for the Cartel, but what else is new.

Nest Labs got a lot of publicity for its release last October of a "learning" thermostat - a digital device that uses a number of techniques to regulate your home's heating/cooling use in more intelligent ways, saving you on energy costs. Nest Labs has Tony Fadell, the former chief architect at Apple, as one of its founders, which helped it in the publicity arena, and its designs are said to embody the famous Apple design aesthetic.

Unfortunately, according to a pair of stories on Gigaom, the device may embody a lot more than just an aesthetic. In yesterday's first story, Katie Fehrenbacher detailed the outlines of the case that Honeywell wants to make against Nest and retailer Best Buy, listing seven areas where Honeywell is claiming to a Minnesota court that Nest has infringed.

Then in an update last night, Fehrenbacher posted the juicy details, including naming the six specific patents that Honeywell is using to back up its charges of infringement. Interestingly, Honeywell has also included a third party's (Kohler) product design image, claiming the two are "strikingly similar". Does this portend more suits against Nest, possibly over design patents? Is that "Apple look" perhaps not so unusual or distinctive as last year's gushing commentaries led us to believe?

That, I suspect, is something we'll see settled in court. The market for smart thermostats right now is small, but growing, and Nest has some very big investor names behind it. I don't think they're going to want to dump their investment and like a lot of these infringement suits I think they're going to find it wiser to deal than fight. Whether Honeywell wants to license its patents or use them to keep the hot start-up out of the business is still unknown.

In today's follow-up post on Forbes, Paul Tassi exposes more of how he sees the Copyright Wars. In particular, he's keen to address the notion that he "gets it" and somehow the Cartel doesn't.

Contrary to what I may have implied yesterday, Tassi says that he doesn't believe the Cartel executives per se are dumb, just that they're behaving in un-clever ways. If so, the question is why. Tassi makes the familiar argument that the Cartel is deliberately overstating - if not outright lying and distorting - its losses due to illegal copying. At least, these numbers and reasoning are familiar to those of us who've been in the Copyright Wars for years; maybe they're less obvious to your average Forbes reader.

Finally he points out that the industry's continual focus on blockbusters can have huge distorting effects. A badly performing movie can easily lose a studio USD 100 million or more and yet they continue to invest in ever-bigger and ever-more-costly projects. This, he asserts is prima facie evidence that the industry is not in trouble.

Eh... maybe. Once you've built a business model around blockbusters it can be very hard to climb down. It's not just movies that are built around this - books, music, and drugs are all blockbuster-based business models. Hollywood doesn't seem to know how to do low budget; they seem to leave that to the independents to make and then pick up distribution. If you're built to do a few big things it can be hard to retool to do lots of small things. Also calculating P&L on a movie can be an exercise in black magic; just ask anyone foolish enough to sign a contract for a percentage of a film's net. Theater attendance is dropping and it's not always reliably the case that you can make up lost in-theater revenue via overseas or other ancillary sales.

None of which is to say that I'd defend the Cartel's ridiculously inflated numbers on "losses." I think there's very good evidence to show that they make up loss numbers. Just saying that Tassi's column isn't as spot-on as he might like.

In an opinion piece titled "You Will Never Kill Piracy, and Piracy Will Never Kill You" he lays out how he sees the Cartel's position in the immediately post-SOPA world. "Doomed" doesn't quite cover it, but "dumb" sure applies.

His argument is one we've made here for many years: service trumps all. ITunes wasn't the first MP3 service and by many measures wasn't the best. But it had a service orientation, disruptive low pricing, and no friction-inducing mechanisms like subscriptions. The user experience was good. Did the advent of iTunes stop people illegally copying music? Hell no. Did it prove that legal music sales could capture billions of dollars right alongside illegal copying? Hell yes.

Of course, the idea for and implementation of iTunes didn't come from the Cartel. It came from a tech company that is used to existing in a world where competitive value propositions rule the day. Tassi's piece argues that in order to survive, and to combat movie sharing via things like illegal torrents, Hollywood needs to refocus on providing a better user experience. Again, this isn't a new argument. But it's being made in Forbes, not on some random blog nobody reads, and it's being made by a guy who grew up steeped in the anti-piracy jihad of the last decade. And if it wasn't clear that he and his generation couldn't give a rat's ass about this jihad before now, it should be abundantly clear now.

Nearly two years ago I wrote that my most optimistic outcome for the Copyright Wars lay with the next generation. Kids who made remix culture mainstream. Kids who grew up knowing that the digital economy was all about them, marketing to them, getting their attention and if they didn't like the terms of the deal in front of them it was easy to click on to the next deal. I think Tassi is Exhibit A that I was right. Sure, he dings movies and DVDs for being overpriced, just like Roger Ebert and Dan Gillmor. But unlike us old folk he's not just grumbling and then paying out anyway. He's saying "make me a better deal and I'll switch off BitTorrent; fail to make me a better deal and I'm gone."

The essay starts with the recent defeat of SOPA/PIPA and works backward to a nice set of links to past important battles in the Copyright Wars. Aheram is clearly reacting to currents within his own libertarian intellectual-thinking tradition, where some have taken sides with the pro-SOPA forces or been "dismissive" of SOPA.

As I am not libertarian, I was interested to read their point of view. In particular, Aheram asserts that copyright itself, by virtue of its government-granted monopolistic status, is an illegitimate infringement on sovereign private property rights. I suspect that others - even other libertarians - might not agree there, though I see the logic that is being followed.

I am reminded of arguments made by Stewart Baker (whom I read through Volokh Conspiracy, itself often a home for libertarian thought). In an op-ed published in the Hollywood Reporter, Baker argues that Tea Party conservatives played a major role in swinging Republican sentiment against SOPA.

Again, there's a definite link between Tea Party streams of thought and libertarian streams of thought, particularly as applies to smaller, non-interfering government. I don't quite buy Baker's strong assertion that this wing of the populace had the most effect, but it's quite clear that when you tally up those who finally came out against SOPA the Republican party was much better represented than the Democratic, which may well be looking at how many dollars the Cartel puts in its campaign coffers.

If Baker is right, then we really do need more pieces like Aheram's to reach out to untapped or skeptical communities and help them see where their political freedoms and Internet freedoms overlap.

Professor Geist has always been one of the go-to guys for clear analysis of major legislative battles in the Copyright Wars, and a keynote talk has a format that lends itself to engaging summarization. This address, which he just posted a couple days ago, was given at University of South Florida in St. Petersburg. It's just under an hour and I think will help us all think more clearly about the current state of the immediate post-SOPA world.

As he tells the story, he found it incredible that people at the show were mostly not dancing. He says "It was as if the crowd had been admonished to not be too … expressive." In fact, no one had told the crowd not to be expressive, but the band had gotten the venue to enforce a strict "no smartphones" policy. Deprived of the ability to photograph, tweet, capture, and share the experience, the crowd largely shut down.

Battelle muses on the phenomenon, and how these devices have changed our experiences in the past decade or so. Certainly people moved to bands before there we were mobile phones and nobody brings a mobile to a mosh pit. So perhaps Battelle is putting too much emphasis on the device and its influence on social culture. Or maybe not - maybe a rule like "thou shalt not share" is interpreted - even subconsciously - as "thou shalt not experience fully". Concert bootlegs have existed probably as long as people were capable of carrying recording devices and while some people may be perfectly happy in the moment between themselves and the performer maybe that's an isolated experience. Maybe the majority experience is to become fully immersed and to want to share that joy with friends, both present and remote.

Tape trading, anyone?

Neylon very kindly responded in comments, but his item was caught by our overzealous spam filters. I've now published the comment and would like to draw attention both to it and to what it links to, which includes a link to a blog entry by Tim Gowers on what to do next.

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:

1. 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.


2. 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.

Jonathan Franzen is profiled in the UK Guardian, as an author unhappy with e-books and concerned about their effects, when compared to physical books. John Scalzi takes a moment to respond in his blog.

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.

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.

Responses have varied. Notably PLoS, the Public Library of Science, is trying to make an online venue respectable for these kinds of publishing. I've been blogging about PLoS since at least 2005 and not much has changed with tech pubs in the years since.

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.

Boingboing pointed me to "Rip. Mix. Make" an online petition to the US Copyright Office. The petition is organized by Kirby Ferguson, known for "Everything is a Remix", and the EFF. The petition is approaching 2000 public signatures as I write this, and needs more voices to be heard.

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?

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?

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.

On Justia Verdict today Julie Hilden posted an interesting analysis of the Breyer dissent in Golan v Holder which I think is worth noting for a couple points.

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.

Turns out this view is both complex and nuanced, as he explores in his blog post. That's good, because he started the whole thing off by Tweeting something sarcastic that apparently got taken way out of context. What Coulton ends up arguing is that there are both good and bad aspects to sharing sites like MegaUpload and to the environment in which he's creating.

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.

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.

Even if the authorities don't seize these records, we've seen ample evidence that some organizations will break the law to get at private information so they can publish it and up their circulation numbers. If your reading list is anything like mine there's plenty on it that could be cherry-picked for tabloid headline fodder. I don't think such concerns are far-fetched or academic. The Comic Book Legal Defense Fund, for example, has ample case files of people whose reading habits have proven unpleasantly interesting to authorities.

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...

(h/t +Mathew Murphy for the pointer)

Last month I noted I would be speaking at the Arisia SF convention on a couple of IP panels over MLK weekend in downtown Boston. Convention details are linked from the previous post.

The schedule is now up and the winners are:
* SF/F, Prior Art, and Patents, Fri 5:30 PM (I'll be playing the role of the creative type in a sea of legal opinions.)

* Copyright, Satire, and the Public Domain, Sun 1:00 PM (this one will also feature Richard Stallman. Me, Stallman, and three IP lawyers. Should be a hoot.)

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.

The source for this rant is +Dan Gillmor's column in the UK Guardian titled "The great ebook price swindle". In it, Gillmor points out that greed and arrogance (he forgets to mention utter terror) have led publishers to adopt a collusive (and possibly illegal) agency pricing model. The result being that e-book prices jumped 30-50%.

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.

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.

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.)

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.

(h/t +Peter da Silva for the pointer forward.)

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.

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.

For further edification: a summary post, referencing Doctorow's Guardian column, called "YouTube's Real Pirates", and don't forget to follow the story of UMG going rogue as well.

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.

Finally, Boingboing and others have pointed out that I've been remiss in noting that the EFF is still fighting the good fight for intellectual property and privacy. If you're like me, then you're putting together a year-end charity list and you might want to know that donations are being matched, at least for a while longer, making your contribution count double.

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.

In last week's long ramble I wrote that nobody seemed to be saying clear things on what Apple was up to. Ask and ye shall receive, I guess. Today +Dan Gillmor pointed to a "Patent Absurdity" column by Steven J. Vaughan-Nichols on ZDNet.

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...

As I mentioned the other day the grinding trench warfare in online music mostly bores and frustrates me. Look here, Ars Technica will tell you about yet another case in which the Cartel issued bogus takedown orders. This story could have been published any time since the DMCA became the law of the land and it would be essentially the same story. Props to Ars for continuing to cover 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.

And finally, I got a note from one of my favorite Congresscritters, Bernie Sanders on a proposal he's made in honor of World AIDS day: an alternative method for rewarding the work of drug developers, big or small.

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.

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%?

Over at Boingboing, Cory has a post up about the latest round of e-book land-grabbing in this case a dispute between Penguin and Amazon about terms related to sale and lending of e-books. The two companies are spatting and, as usual, it's the end readers (in this case, mostly library patrons) who are getting shafted.

You can follow the Boingboing post and its link to the ALA site for the latest sand-throwing childishness. I thought it was ironic to read this Boingboing post right after I read a comment here from reader Dan T on yesterday's item, where he points out that putting bits on one's own disk can have significant advantages over cloud-based music systems. Sadly, even if you do buy electronic products in download form, if those bits on your disk are wrapped in someone else's DRM you're still at their mercy.

First, there's a breezy guide from Dan Kantor on Gigaom on how to buy music now. As I noted some time ago, the ability to stream music to wherever you are from 'cloud' music services is taking over from the purchase of downloadable tracks, just as those downloads took over from the purchase of plastic platters.

Kantor's guide focuses on issues such as format, chiding Apple for still selling AAC, and on what mobile device you use, with distinctions for nerds and non-nerds. Still, the core message is: buy something to stream, not to drop on your hard disk.

Not that you're necessarily going to get everything you want from these services, though, particularly if you want things that aren't released on major labels. In fact, if you use Spotify, you just lost access to over 200 indie and minor record labels' catalogs. The problem, as Matt Lynley lays out in that column, is that the cloud services are paying... um, in my tribe we call it "bupkis".

In addition, the streaming services like Spotify are seen as cutting into the outright purchases you are being advised to make on the other cloud services. Spotify, in its response statement, claims (sole) responsibility for getting people to stop illegal downloading. Epic achievement there, guys. Can you convince the Cartel to stop suing people for downloading now that, you know, you've stopped all illegal downloading?

In fact, according to another Gigaom piece, part of the problem is that the Cartel owns a chunk of Spotify and is thus absorbing some of the revenue that might otherwise flow to these indie labels from Spotify.

Kevin Smith of Duke University has a pointed and poignant essay up on his blog about "The Unexpected Reader". The essay talks about how models of openness have become the norm in at least academic and scientific information access.

Smith notes that open access has more than proved its worth, both anecdotally and in repeated tests. The value of publication is not just in reaching those for whom the publication was intended; the value is in being read by a wider and wider audience, many of whom are unexpected readers who can make unexpected connections and derive surprising results and new value from openness.

With the US Congress moving to shut down many of the basic open principles of the Internet, it's nice to have some thought leaders arguing more forcefully for greater openness.

A bit ago I poked at the issues surrounding the copyrightability of tattoos. One possibility is that a tattoo is a purely expressive design element, which might appropriately be covered by something like a design patent or a copyright; though, as I blogged last time, there are a raft of unanswered questions as to how that IP protection would be read. In addition to artistic design, tattoos can do much more : they can contain messages as words, and they can convey messages by their choices of symbols, images, or even colors. The question then naturally follows: is a tattoo a form of speech?

According to the decision in Coleman v City of Mesa, yes. However, as Eugene Volokh notes, this decision follows Ninth Circuit precedent, which SCOTUS loves to overturn, and disagrees with decisions in other states/circuits. Should someone decide the case is important enough I could see one of these arguments going all the way to the Supreme Court.

Time again for me to tie together two things that start out looking different but that I see through the same lenses.

First, an article published last month on Boingboing by new novelist Bill Barol. In his piece, Barol describes how he came to give away his first novel, Thanks for Killing Me. He discovered that regular publishers didn't want it, and self-publishing isn't all it's cracked up to be. For example, CreateSpace sets a minimum price - he could self-publish there for about USD 8 and take home 30 cents per copy sold.

The discrepancy is interesting. You can go to Amazon and think you're paying eight dollars for a book that its author feels he is essentially giving away, not to mention all of the work he has to do in promotion and marketing, since he has no major publishing house to handle that. Barol talks of the book as a "loss leader" - shades of Megan Lisa Jones - but unlike Ms Jones he doesn't seem to have a plan for follow-on work. His goal is just to get noticed. It is, as he admits, a pretty crazy plan but in an era when traditional business models are collapsing, one worth trying.
(Edit: Barol noted in a comment response that he does have a follow-on plan, which I failed to parse correctly from the Boingboing piece. Mea culpa.)

The second story appeared on NPR this morning, and describes a program at Arena Stage to foster new playwrights. The Copyfight-interesting thing about this program is that it's using a grant for new plays in a wholly different way. Instead of making one-off work-for-hire items that would then be owned by Arena Stage, the facility is instead using the grant money to pay playwrights like employees. They get a salary of about USD 40,000/year, housing assistance, benefits (including all-important medical insurance), and some money to do research for their new works.

In return the playwrights produce plays that are performed at Arena Stage, but can also be produced at any other theater around the country. The story doesn't describe the precise rights arrangement, but the director of the program, called American Voices New Play Institute, is quite clear about it being a different ownership model:

Normally, you commission a writer, you own that writer's play to a certain degree. And we're trying really a very different model.

In this piece he draws a line between the DMCA and the Arab Spring, as we in the west have come to call the popular uprisings in Tunisia, Egypt and elsewhere that have toppled dictators and probably changed the face of politics in the region for generations to come. The argument is pretty simple: without the Safe Harbor provisions of the Act, open public social services such as Twitter and YouTube would not have flourished. You can even argue that more closed systems such as Facebook that still depend on user contributions for the majority of their content would not have succeeded. And without these services, Post contends, the protests would never have coalesced.

It's fun to argue counterfactuals over beer and pretzels with your friends and you can probably argue that these revolutions would have happened sooner or later even without the networking effects of social media sites. However, this misses the larger point that I think Post wants to make, which is that the narrow concerns of the Cartel in seeking to overturn Safe Harbor need to be weighed against the enormous social goods and still unknown potentials that the provisions have allowed to develop.

Apparently the retailers decided that if they couldn't sell the digital version then they weren't going to sell the paper versions either, so nyah-nyah phblblblbttt. Meanwhile, over in that corner DC is saying you can't have your comics on the iPad or even the old Kindles either so nyah-nyah... well, you get the idea.

Seriously, this resembles not an intelligent foray into 21st-century business model development around digital media but rather a sand-throwing, hair-pulling, name-calling playground tussle among five-year-olds. It's multiple sides cutting off their noses to spite their faces, and along the way hose their fans, customers, and readers. And if you thought music fans were fanatically dedicated, you have not met comic fans. The best possible outcome of this that I can see is more of those fans going back to their local comic shops for the physical versions of the books and series they love.

As I noted a few weeks ago, deals that lock e-book content to a specific reader are going to screw people over. What may seem like a nice enticement to get new people to buy a particular device is going to piss off the hundreds of thousands of other people who already have an e-book device and no plans (nor money) to buy another one.

What's surprising to me is that it doesn't take more than about 30 seconds of thought to realize that we've been here before, and we're in this situation now. Movies, for example, come out now on both standard DVD and Blu-Ray. Eventually, Blu-Ray players will dominate the market to the point where DVD versions of movies are no longer made. In computer gaming you used to get new games out on CD and DVD; now the vast majority of gaming PCs have a DVD reader or a net connection so nobody makes games on CDs anymore. See also books on tape, audio LPs, and on and on. It's possible that in the next few years or so one e-book capable device or one e-book format will come to be sufficiently common that producing only that one is an appropriate business model. But not now.

If companies weren't busy being blinded by the "ooh new shiny" of the sudden surge in e-book numbers they might take a moment to learn from history. Resquiat in pacem, Santayana.

According to TorrentFreak, just be a politician, work for the army, or maybe the police.

What seems to have happened is that the ham-fisted attempts by the adult film industry to mass-sue their customers for downloading porn torrents has revealed some interesting things about who does and who does not get sued. The process is a familiar one - the entity owning the rights to the material sues a bunch of IP addresses that have been spotted downloading it. Various legal machinations are then engaged to associate IP addresses with names, and the names thus associated become the new targets.

Except when they don't. If an IP address seems to be associated with "public figures" or servicepeople overseas those names are quietly dropped. Sometimes IP addresses come back associated with cops or dead people and they don't show up, either.

Of course, nothing in the law requires that a copyright holder sue everyone equally. The exclusion of certain groups from these mass lawsuits is a separate matter from the inherent silliness of the whole process. But it sure would be interesting to know which politicians and other public figures are being given a free pass on their porn torrents...

As before, she's building on her own personal model - she's a fan of the game and the stories of the world in which the Dragon Age games are set. The new series was done with EA's backing and the short teaser that's up so far looks like it has good production values.

I've not yet seen any discussion of how the business arrangements for this are laid out. Obviously Bioware's logo and properties are featured heavily, and I imagine Day and the other actors probably got paid at least union rates. But it would be interesting to know whether the series is intended to make money, what effect it has on sales of Dragon Age games and DLCs, and whether profit-sharing is part of the plan.

The blog entry on m-phi is initially concerned with discussing how a possibly revolutionary proof in fundamental mathematical theory was published, subject to scrutiny, and rapid consensus formed that an error had been made. The consensus and supporting arguments were sufficient to convince the original author of the theory to retract his assertion. This is no small thing, particularly since he had a book in the works to explain his discovery. The blog then goes on to reference Jody Azzouni's book chapter "How and Why Mathematics is Unique as a Social Practice".

As related in m-phi, the book's central contention is that mathematics as a discipline - and therefore the mathematicians who practice it - are "very peculiar" in that they tend toward consensus not as a result of social pressures or academic rigidity, but rather as a result of how mathematics works as a discipline. Some have even argued that this is evidence for the notion of Platonism in mathematics.

From a Copyfight perspective, this poses a strong challenge: how do we generalize this kind of behavior? I think it's reasonable to expect that people who read and contribute to this blog believe in the open sharing of ideas and information. We believe that such openness accelerates progress, solves problems more rapidly, and leads to the development of generally better solutions than structures where solutions are developed in isolation. So where else can we look for examples to support this hypothesis?

(once again hat-tip to Steve Landsburg and his "The Big Questions" blog.)

Slashdot is reporting that Facebook has filed a patent application (titled "Communicating Information in a Social Network System about Activities from Another Domain") that describes methods for tracking Facebook users while they're on other sites.

I've not yet read the patent app (it's long). It's a priority claim incorporating a provisional application filed in February of last year. The new application cites no prior art at all, which strikes me as slightly odd; perhaps that's in the provisional app.

The gist of the application appears to cover the techniques that are behind the Facebook "widgets" - content on Web pages that can access your Facebook-created cookies even after you've logged out of Facebook itself. Thus your movements across the Web are reported back to Facebook and you get ad-served (also described in the patent application) based on the knowledge of who you are that Facebook has accumulated.

Also of interest (and noted in other blogs) is that the patent never says (nor is it assigned to) Facebook. Usually a patent application is filed with the inventors names on it, and then some form of assignment statement. Particularly in the high-tech industry it's standard practice for employees to sign agreements at the start of their employment that any intellectual property they come up with during business hours or that relates to the business of their employer is to be assigned to their employer. No idea why such a statement would be absent from this application.

It's probably worth noting for the record that Facebook has made claims to the effect that it does not track logged-out users, claims that are widely seen as... what's the word I want here... bullshit. See for example, Dave Winer's column titled "Facebook is Scaring Me".

Mark Glaser, whom I just started following on Google+, linked to a couple of Mediashift stories of interest to Copyfighters, I think.

In the first story Audrey Watters takes up a particular instance of the problem with lending libraries and e-books: school libraries. These libraries, like others, are facing incredibly tight and shrinking budgets these days and may not be able to afford a major transition from traditional physical books to e-readers/e-books and the potential additional financial implications of setting up a lending program for electronic books. It won't surprise anyone here to read that DRM is a (maybe the) big hurdle to getting these programs going. Libraries can't afford to buy an excessive number of devices, so DRM that locks books to specific devices or even brands of device is a non-starter.

In the second story, Carla King takes on the issue of self-publishing and getting your book into physical distribution outlets. The entry is actually part of a series on self-publishing - the second so far. In this piece King shares her advice on how to handle print-on-demand situations as well as finding a distributor or other partner who can do the legwork necessary. Again, no surprise to see that Createspace is still a dominant entity in this growing business and that, still, self-publishing is hard work. That said, King's message is overall positive - you can do this, if you are willing to put in the work.

Fred von Lohmann pointed to this announcement of the new, improved SCOTUSblog. The blog has always been a go-to site for professionals and amateurs like myself who are trying to puzzle out what the various Supreme Court pronouncements and goings-on actually mean.

The blog now is big enough to support four full-time employees, with the backing of Bloomberg Law. Bloomberg remains a paid commercial service, but here they are doing a really awesome thing in sponsoring a fully free open and accessible source of high-quality analysis and content. In addition, SCOTUSblog is promising to offer more non-text content such as audio and video. My guess is that without someone to foot the bill they couldn't afford the extra bandwidth costs that these kind of content incur.

As sole sponsor Bloomberg Law gets props both in the site banner and in advertising space in the right-hand column. It will be interesting to see how they use these spaces and what influences and effects they have on the site in the future. As always I remain interested in sponsorship (patronage) business models and how they play out for creative folk everywhere.

Data from Publisher's Weekly and the site Galleycat show a huge jump (167%) in ebook sales in June as print book sales continue to slump:

In that month they estimate that ebook sales are within a few percentage points of hardcover sales, in dollars: $84.9 million for hardcovers and $80.2 million for ebooks. Trade and mass-market paperbacks together are still on top at $95.8 million combined, split about evenly. That means taken separately each of these categories is now below $45 million. Trade paperback sales were reported to be down 64%.

Analyses for why the sharp reversal has taken place are spotty. As we noted earlier, prices for ebooks have been forced sharply upward because of the switch to the agency model, but unit sales have continued to climb. There are also a couple of one-time events pushing on the trend: Borders closed, cutting into physical sales, and Harry Potter e-books are due to be released later this year, which everyone expects will cause a huge spike upward in those numbers.

On a related note, Paul Reynolds blogging for Consumer Reports sounded a typically negative note about the prospects for e-book subscriptions and open-ended rentals such as you can buy in the video realm. I agree with Reynolds: publishers will have to be dragged kicking and screaming, if at all, into this business. Prior to that we'll see significant DRM-cracking and file sharing of ebooks, pretty much exactly recapitulating the story of digital music from 15 years ago because I'll bet you the book publishers have learned nothing from the Cartel's experiences and they are all very very afraid.

(hat/tip to Doug Pardee and Karl A. Hakkarainen for the pointers.)

SF author Elizabeth Bear pointed to this entry in a LiveJournal blog. It's a little bit long on passion and short on facts, but the central idea is neatly summarized:

When you have little money, you buy second-hand books. Seen a second-hand ebook lately?

It's an interesting, and somewhat frightening, question: if we really do away with physical books, what will poor people read? Should lack of money mean you lose access to the entertainment, value, education, and ideas contained in books?

David Haden has a new work out on H.P. Lovecraft through publisher Lulu.com. So far so good, standard publication paperback you can put on a shelf. The interesting bit for Copyfight is that Haden, through his D'Log blog, is also offering a free PDF download.

In exchange, he's asking people who take advantage of the free offer to provide some form of publicity - a tweet, a blog notice (*), a Facebook mention, etc. The natural assumption here is that if you're savvy enough to find, download, and read a PDF version of a book then you're likely connected to one or more social media and may well share interests there with other Lovecraft fans who will find this work of interest. It's kind of an interesting mix of grassroots, viral, and targeted marketing and I think it's rather clever.

(*) I should note for the record that I haven't gotten the PDF and likely won't; my interest in Lovecraft isn't enough to motivate me to read a scholarly work.

That's the question being asked by new author Megan Lisa Jones. As we've discussed many times, one of the biggest problems facing new authors is getting noticed. Despite the decline of the book publishing industry thousands of new novels are published each year by established authors. First novels may receive some extra promotion and attention if the publishing house can spare it, or thinks they have a potential mega-hit on their hands, but the vast majority of first novels go by with little or no notice, piled in a virtual corner few people will take the time to browse.

Over in that other corner reside providers like Clearbits (nee LegalTorrents). These outfits are the digital equivalents of vanity presses - you pay them to publish your content not on dead trees but onto the torrent streams. So if you pluck something that might go unnoticed from the traditional publisher corner, and move it over to the self-publishing digital corner, wrap it in a Creative Commons license, and set it free in the ether, what might happen? In the case of Ms. Jones' book, it looks like something over half a million downloads.

Half a million potential readers worldwide is certainly a lot more notice than you'd get from pretty much any traditional publishing arrangement. For a new author trying to build name recognition and planning to turn a first novel into a trilogy and possibly other publications, that's good. For people like me who want to see new business models put to the test, this is very interesting.

Sadly, what's missing from the WSJ blog entry is any of the financials. What did it cost Ms. Jones to do her deal with ClearBits? How does that compare to the costs of a traditional vanity press? Has any income been received directly, or is it all in the form of indirect benefits - certainly you don't find any other new authors in the Wall Street Journal's "Small Business, Big Innovation" competition so you can point out a significant measure of success there. But I think it's too simplistic to say "a book is a business;" I still want to follow the money.

(hat-tip to Copyfight reader Jayel Aheram for the pointer.)

Now, Gaiman has started his own audiobook label using the tools of ACX, the Audiobook Creation eXchange. As with other book labels this one exists not just to promote one man's work - though his name will definitely raise notice - but to find and promote audiobooks of quality by new and existing authors. ACX is a self-described "marketplace" that focuses on the aspects of (audio)book publication and promotion that are usually handled by traditional labels - publication, distribution, marketing, promotion, rights management and so on.

ACX also has a wealth of self-help and learning materials for people who are trying to navigate the business side of things; for example, they have a simple walk-through on various business terms you can establish through them, grants of rights, and so on. They have boilerplate business documents, and FAQs to try and make things simple.

Right now ACX appears largely to be a front end for Audible.com but there's no reason they couldn't serve the same function with different partners, which leads to the question - is this a better way for people wanting to get their audiobooks published to go? Traditional publishing houses seem to be spending a lot of energy suing to keep people from donating books to libraries and not a lot of energy on finding and promoting new audiobooks and new audiobook authors. So there's clearly something of a business vacuum to be filled; here's hoping it can be filled profitably.

If you understand all this stuff feel free to pause here and read that. For those who don't, let's start with the basics: "First Sale Doctrine" is an exemption first recognized about 100 years ago in the US to the limited monopolies of copyright law. The doctrine says that if you have a copy of a work that you got legally, then you have the right to resell it after you're done with it. This is particularly relevant for things like books, movie DVDs, game cartridges and so on, all of which have large and reasonably healthy secondary markets both physical and online. In the EU and many other parts of the world this right does not exist; the idea that "I can do what I want with my stuff so long as it's legal" seems to be uniquely American.

First sale doctrine has been under attack for some time in the US. Last year a divided (4-4) US Supreme Court affirmed a Ninth Circuit decision, in a case called Costco v. Omega, that first-sale applied only to things made and distributed in the US. Since the Court was equally divided - Justice Kagan recused herself - the 9th ruling stood but no national precedent was set. Now the Second Circuit has upheld this principle.

The problem? Well, let's see. For starters, do you know if your book was printed in the US or Canada? If it was printed in Canada, be sure not to list it on eBay or Half.com and make sure it doesn't show up at your yard sale or get donated anywhere. Did you order from Amazon UK? If so, you are now not allowed to resell that book. Are you a library that stocks UK authors? So sorry, you can no longer lend those books out unless you went to the trouble and expense of getting the publisher's permission for each and every item.

For your non-US books, do you know whether the listed publisher still has the rights in that book? Did the author's contract expire or get terminated? Did they move to another publisher, and if so did that publisher pick up rights to the author's back catalog when they started publishing her newest works?

You can see where this is headed. Neveryoumind about orphan works - just be sure you're not the kind of dastardly person who GIVES books away to libraries like those whose collections have been damaged by the recent flooding in NY, CT or VT - all states covered by the Second Circuit. Because if you do that now, you're breaking the law; I imagine that libraries that ask for donations are probably guilty of contributory infringement, too.

And if you're a company that does printing work for books or comics or magazines, or your company manufactures those DVDs or cartridges for games in the US, I'd start looking for a new line of work pronto. Because, really, there's not a single reason that any publisher would want to have their materials made in the US anymore when just having them shipped in from overseas allows them to escape that pesky first-sale stuff. Which brings me back around to my original question - what, exactly, do John Wiley think they're going to accomplish here? Do they think they're going to exterminate used book stores? Kill the comic resale market? And to whose benefit?

Can you imagine a time when stores display books with little tags like you see in art museums. "On loan from the permanent collection of Alan Wexelblat"? At least as an individual purchaser I think I'm still allowed to lend friends my books. I think. For now.

(h/t to Doug Pardee for the pointers, and to Dano for the Subject line of this post)

Law.com has an interesting item from The (California Legal) Recorder describing Judge Phyllis Hamilton's decision to slice USD 1 billion off of damages for copyright infringement. The damages were laid against SAP in its loss to Oracle over illegal downloading.

In pre-trial documents SAP admitted that a company called TomorrowNow - an SAP subsidiary - had downloaded or made "hundreds of thousands of infringing copies of Oracle's software and support materials." Given that admission, the purpose of the suit and trial was solely to determine the extent of damages and what SAP would therefore owe Oracle.

According to Ginny LaRoe's story, Judge Hamilton's decision was to limit Oracle to actual damages, denying it more money for "hypothetical license damages". Does any of this sound familiar to you, too? This isn't a free ride for SAP by any means - it's still on the hook for $272 million in actual damages. Oracle may also appeal the judge's ruling, and attempt to get some or all of the full jury award.

The FOSS Patents blog has an interesting note on a patent issue being raised by Samsung in its fight with Apple over iPad. In particular, the fight is over design patents, which cover the expressive elements of design - the style, feel, visual look, decorative elements and so on.

In this case Samsung has introduced into evidence images from Stanley Kubrick's classic movie 2001: A Space Odyssey. In that movie, characters are seen using a tablet-like device as shown in the image I've copied at the bottom of this blog entry (image enlarged somewhat so you can see details).

According to Samsung, this constitutes prior art because it shows key elements of the design that Apple wishes to protect with its patent, in specific: "...an overall rectangular shape with a dominant display screen, narrow borders, a predominately flat front surface, a flat back surface (which is evident because the tablets are lying flat on the table's surface), and a thin form factor."

I confess I'm not familiar with how prior art works in design patents - are the rules different from prior art challenges to functional/process patents? Is a use in a purely fictional context sufficient to show that the design elements are not original and thus presumably not qualified for new patent protect? Will the court even accept Samsung's submission for consideration as an element of prior art? We'll certainly find out the latter soon and the others in due time.

Salon has a nice tribute to two of the great creators in the pop music industry who recently passed away, Jerry Leiber and Nick Ashford. Both were part of song-creating duos and it's worth reading the stories of how they worked together with their main partners, and with other collaborators, producers, and musicians throughout their long careers.

In particular, looking at these two men it's clear both that they were greatly influential and that they were deeply embedded in rich systems of shared creation. Their life stories give lie to the myth that people create in a kind of mystic isolation where there is An Idea, pure and platonically ideal, which leads to the error of trying to (over)protect those creations. Like many great creative teams who came before, the fine works that bear these mens' names are made possible because their ideas are not hoarded, but are shared and worked and reworked, being refined and made better in the process.

Nate Anderson's piece for Ars on Brownmark Films v Comedy Partners et al is too funny for me to do justice to. You should go read the original. The gist, for you folk who want to know what you're getting into first, is that a decision last month in Wisconsin in the suit over South Park's parody of the viral YouTube video for "What What (In the Butt)" may help people who want to cite fair use defenses in copyright cases.

In particular, the judge agreed to a motion to dismiss on fair use grounds very early in the case, well before trial and even before the discovery phase began. If such early proceedings catch on it could significantly ease the way for defendants who want to raise fair use defenses and as a result make these defenses much less expensive. Since parodists are often independent or small operators without deep pockets for legal bills this can be a good thing.

(h/t +Donna Wentworth, who used to blog here, for the pointer.)

The UK's tabloid The Daily Mail stole and reprinted Alice Taylor's picture and quotes without attribution and after being told no, they couldn't use the photo. Taylor had granted permission to the Washington Post, but wanted a small concession from the Mail, which they refused. Then they went ahead and stole the photo anyway.

According to Taylor's blog entry, the Mail does this with some regularity except this time they may just have picked the wrong person to steal from. Taylor is not only a CEO of a gaming company, a gamer in her own right, and a savvy blogger. Plus, she happens to be married to Cory Doctorow of Boingboing, which has more than a little experience dealing with the difference between fair use and outright theft.

I've said it before and I'll say it again: creators should be paid. If the Mail didn't like Taylor's terms for the photographs they could have sent their own photographer out there and paid for their own picture to be made. Not that I think the Mail cares if they get a bad (worse) name in the blogosphere, but I do hope Taylor follows the advice in her comments stream and sends them an invoice, including costs for her time in dealing with this.

According to Larry Rohter for the NY Times, they're about to fight those musicians over something known as "termination rights." These rights were written into copyright law in the mid-1970s and they give the current owners of albums 35 years to profit from it - which they have done handsomely. But after that time, musicians who want to reclaim the rights can do so by giving the Cartel at least two years' notice that they intend to exercise their termination rights.

If you get out a calendar and do a little math 1978+35 = 2012, which is next year. So starting last year some forward-thinking musicians such as Bob Dylan and others assisted by Don Henley's Recording Artists Coalition began making their applications and would like to get their music back please and thank you.

Not so fast! says the RIAA (you have to imagine Frank Morgan as the Wizard voice here). The Cartel claims that these rights don't apply to those recordings and they aren't going to give them up without a fight. Instead, says the RIAA, the albums were made as works for hire and belong to us in perpetuity sort of like copyright and certainly you can't get them back, like, ever nyah nyah. OK maybe I made that last bit up, a little.

The 'work for hire' claim seems to rise (or fall) on whether or not you think that the musicians were employees of the record companies at the time the recordings were made. That's some pretty thin legal ice because if they were employees then things like Social Security withholding and regular paychecks would have been the order of the day. In fact, they were not. Records were made (as they most often are today) based on advances given to artists against future royalties and an arrangement like that leans heavily toward considering those artists as independent contractors who are then entitled to exercise their termination rights.

Much as I'd like to see the RIAA get another black eye here, I doubt it's going to happen. The artists have huge incentive to negotiate a settlement well before it goes to court, let alone the Supreme Court as Rohter writes. In addition, there will be other interested parties such as producers, sound engineers, session musicians and so on who will want to put in for their share of the rights once the Cartel's grip is loosened. Allowing that whole snarl to go to court would likely cost everyone more millions than they want to spend, and would result in confused and probably contradictory rulings. A much better arrangement will be worked out that will allow major labels to continue making hefty sums off the albums while giving musicians some rights to do other things with the music, or to get a larger cut of the profits from new technologies such as ringtones, digital downloads, and music streams.

I don't know of anyone who has tallied the multi-decade profits of the labels from the albums threatened with rights termination, but it has to be billions of dollars. As with the NFL lock-out, the pot of money on the table is too big for anyone to walk away or let it go to waste; a split is in everyone's best interest.

Everyone is talking about Google's purchase of the formerly Motorola Mobile division in terms of protecting their Android hardware platform, or in terms of the patent portfolio they'll acquire. Both valid points, but I just want to note that this is also the division that makes the DVR high-def set-top boxes. Google owns YouTube. Anyone think 1+1 != 2?

(h/t +Harry Hawk for the pointer.)

The fight has largely gone on behind the scenes - the most obvious consumer-visible part of it has been the fluctuating prices for ebooks. Now it threatens to burst into full public view, with a class-action lawsuit filed in CA this week alleging that ebook publishers colluded (illegally) with Apple to fix the prices of ebooks.

The simple view of things - as presented in the suit - is that Amazon was working to force e-book prices down and the publishers decided they didn't want to play ball. In fact it's a complex situation revolving around who gets to set the prices for ebooks and whether or not a publisher will be locked in to a model or technology.

Initially, the retailer (Amazon) set the prices we would pay for ebooks as they do with physical books. Publishers charge the retailer a price but the retailer had the freedom to charge more or less than that price. In order to encourage adoption of its Kindle and to boost the nascent ebook industry, Amazon priced the ebooks low - often well below hardcover and even paperback prices. This frightened the publishers, who reasoned that Amazon would not forever take losses on ebooks; instead, they feared, once Kindle lock-in had happened, Amazon would insist on lower prices from the publishers. The publishers fought back with what is called "agency" pricing, meaning they and not the retailer would set the prices we pay. Under this model either Amazon plays ball and sells the ebooks for what the publishers want or the publishers deny Amazon access to the titles.

Although losing access to an individual title may not seem like a big deal it can be significant and relevant for adoption by customers. If customers can't find the titles they want on one ebook reader they're more likely to go with another and once you've bought your books on a particular reader you're locked in. In addition authors often have multi-book contracts with and stay with a publishing house for some years. If you want to read the latest Big Name Author book it's likely you're going to be reading something published by the same house that published her previous work. It's a complex Mexican stand-off with customers, publishers, and ebook maker/sellers all having some power to hold other parties to account.

The fight over the agency model started over a year ago with Macmillan going up against Amazon, which retaliated by discouraging people from buying new copies of Macmillan titles, and the Author's Guild and SFFWA weighing in on the publisher's side. This time it's not just one publisher, but the five big names (HarperCollins, Hachette Book Group, Macmillan, Penguin and Simon & Schuster) in publishing.

But wait, it's more complicated than that. Technically the argument isn't over the agency model itself - the model is used in lots of other places - the argument is over whether the model led to illegal collusion. The publishers are allowed to act to set prices, but they're not allowed to agree ahead of time what those prices are to be, nor to act in concert with outsiders, which is why Apple is named in the suit as well. As PaidContent.org notes, the switch by the big 5 publishers to agency models happened virtually simultaneously, happened in conjunction with the launch of the iPad, and came along with an agreement by the five to allow Apple to use the publishers' various trademarks in iPad promotion. Walks like a duck, smells like a duck...

The agency model has certainly had the effect the publisher desired - ebook retail prices have gone up some 30% in the past year. Given the introduction of new popular readers (Nook and iPad most obviously) it seems like prices ought to be going down. However, publishers do not want to be in a position where they can be dictated to, authors want more money for ebooks, and customers... well, we get the short end of the stick. Again.

SIGGRAPH (the ACM special interest group on graphics) invited Cory to give a Keynote address at their annual convention. This shindig is attended by some of the biggest names on the tech-creative side of Hollywood, in advertising businesses around the world, and hosts some of the neatest research you're likely to watch. Their video show is often a place where the most cutting edge techniques in animation, computer-aided cinematography, and related computer visual techniques such as motion capture are first shown in public.

Cory's address is of course fun to watch - he's very "on". He's also trying to get some of these great creative minds involved in the Copyright Wars in more than a rote fashion. More power to him for that.

Mattel has all along claimed copyright infringement, and argued that the Bratz designs were, in effect, stolen by their creator Carter Bryant, who had worked for Mattel on the Barbie product. In fact, they won a first round (in 2008) and were awarded $100 million. However at the retrial Mattel came out on the losing side both in terms of its claims and also losing the contest over MGA's claims that Mattel had stolen trade secrets.

To add damages to damages, the judge then went on to award not only damages and attorney's fees in the trade secret theft issue but also $137 million in fees and costs for its protracted defense of the copyright infringement claims.

Given the size of these awards the lawyers must be absolutely salivating over MGA's announced intention to go after Mattel again on antitrust grounds. Clearly I am in the wrong business.

Commenter Gareth Simpson pointed me to Mark Cuban's next blog entry on the topic of patents. To say that it's cringe-worthy is a polite understatement. I suppose people worth two billion dollars are equally as entitled as you and I to spew uninformed commentary over the Internet, but geebus.

Cuban's prescriptions for patent reform include abolishing software patents. This is a topic that has been debated at least since the first software patent was granted. I am myself a software patent holder, but I have mixed feelings on the topic. Patents are presently the best form of intellectual property protection available. Contrary to Cuban's one-sentence dismissal the protection offered by copyright is quite weak. I still believe we need a new form of IP protection for software; however, I have to agree that the advances in information science fundamentally challenge the notion that software (information) is different from hardware. Generally, patenting hardware is uncontroversial but then people opposed to software patents must also answer the question of why a program expressed as a custom chip is afforded a different protection than a program expressed as a block of C++ code.

Regardless of which side of the debate you find yourself on (or flip-flop across as I tend to do) Cuban's curt dismissal of the complexity of the issues comes across as ignorant.

Then again, he also wants to abolish "all process patents." I'm going to take a wild guess (since he doesn't bother to state) that what he means are business process patents. Unless he's also opposed to all biological, chemical, and mechanical transformative processes being patented, in which case I find myself wondering what the hell he thinks could be patented. So let's credit him a little bit.

Abolishing business process patents is a less-well-studied suggestion, but not terribly original. The problem I see is that a business process isn't necessarily that different from a software process - certainly every maker of workflow software would like you to think they can encode your business processes in their software (see for example the open-source ProcessMaker if you aren't familiar with this stuff). If we think business processes can be encoded in software then they can also be encoded in machines and now we're back in the weird world of saying "well, yes, you can patent a machine that carries out steps A B and C but if you have human beings doing it then you can't patent it."

Again, I think reasonable people can debate this issue and come out on either side, but you can't just hand-wave them away.

I would love to do a similar dissection of Cuban's opinions of the "benefits" of eliminating these forms of patenting, but I have more interesting things to spend my time on, like Dungeon Crawl Stone Soup.

I've not been able to find any news outlets that are covering this story, but the word among my Apple friends is that if you play a DVD with Apple's built-in DVD player you are no longer able - as of the Lion release - to capture a movie frame.

Dan Gillmor pointed to this small FAQ from Ambrosia software, but that's all I could find online.

Anyone got a fuller/better story?

As of yesterday my profile on Google+ has been suspended. No warning was given (contrary to their written policy). I was suspended because I was participating in the "I am Spartacus" support effort.

If you were one of the readers who followed me there, I'm sorry. This blog and its standard RSS feed should continue to function just as well as before.

My suspension and Google's fight against 'nymity are not really Copyfight-relevant so I won't spend any more cycles here on it, but I do recommend you read what danah boyd has to say on this topic. In my opinion hers is hands-down the best commentary on this, from someone who has spent her career in the social networking area:

"Designing for Social Norms (or How Not to Create Angry Mobs)"
and
“Real Names” Policies Are an Abuse of Power

I'm sympathetic to people decrying the current craptastic state of patenting in the US. But Cuban's random shot at "patent trolls" comes off as easy and facile. He notes that Google spent USD 900 million for Nortel's patents and seems to share Vlad Savov's sentiment there in engadget that the major reason for Google spending this money was to defend itself against these unnamed trolls.

The problem, though, is that wailing about trolls misses major problems with the patent system, such as random rejections, pathetic prior art practices, and a patent reform bill mired in the political mess of the US Congress, a bill opposed by just about everyone from individual inventors to small businesses, to unions, to large organizations. And really, if you haven't been treated to the (reasonably well-informed, if highly biased) rantings of Greg Aharonian on the horrid state of patenting in the US you're missing a real treat.

With all that out there one wonders what, exactly, has Cuban's ire up? Unfortunately his blog entry doesn't even begin to sketch an answer or suggest any way to solve the problem, let alone demonstrate some linkage between some nebulous patent reform and job creation. If someone made an elevator pitch with this scanty a level of logic and detail to Cuban I bet you that he'd get pitched out on his ear.

Ewalt's column recaps how Day took her own personal gaming obsession and turned it into a low-budget original series show that quickly became an online hit. Picking up sponsorships from big names (Sprint and Microsoft) led to the series not needing to rely on the still-shaky Web advertising business model, and has allowed her to expand the business side of things. Day's company now has deals with iTunes, Hulu, and Netflix and is about to launch a new series in conjunction with Electronic Arts based on EA's popular Dragon Age franchise.

This new series will also represent the first time Day is giving up control of the intellectual property - in a sense she's participating in a shared universe of EA's making. So far this appears to be a win-win deal: Day is an avid fan of EA's Bioware game products and was eager to do the show, and EA has to this point kept a mostly hands-off approach.

As with any of these individuals' stories I'm not sure this could be the blueprint for anyone else's success. Day brings a unique combination of talent and obsession - her promo music video for The Guild ("Do you wanna date my avatar?") played off both her personal good looks and the well-established male sexist tradition of creating anatomically unrealistic female avatars in gaming. Because she was poking fun at herself as well as her fans it helped cement her insider cred in a way that would be hard for someone else to duplicate. Similarly, Day has successfully made a transition from crowdfunded to corporate- and merchandise-funded production, a form of the patron model that many creators dream of but that comes with its own set of perils.

I've been reading a bunch of things lately written by and about people who do creative work for a living (I blame Gaiman's long silence). Here are a couple of articles I think Copyfight readers will enjoy:

First up, The Independent had a feature earlier this month on Steph Swainston, titled "I need to return to reality'. The story covers Ms. Swainston's decision to give up a job as a published fantasy-novel author and start teaching chemistry in school.

That's sort of the reverse path of a lot of authors who work at traditional jobs while they write part time or after hours in the hope that one day they'll make enough from publishing to be able to give up their "day jobs". In reality, of course, you exchange one day job for another. One thing you see repeatedly in authors' blogs is the clear statements that writing is a job, a job you work at a lot during standard work hours, and it's hard work. It seems to be this latter that has motivated Swainston to bail halfway through a two-book deal.

There's just too much stress on authors [...] The business model seems to be that publishers want a book a year. I wanted to spend time on my novels, but that isn't economically viable.

Swainston's other point is complex and potentially more touchy - writers, she argues, end up writing inside a bubble. Divorced from other contact with the world writing can not only be a solitary and lonely activity but this lack of contact can leave an author feeling a loss of meaning in her life. Swainston's decision to teach chemistry is no accident - she finds it "feeds that sense of wonder" that all authors need.

The second artistic item is musical: Bob Ostertag writes in the August issue of The Wire (available early online) about his experiences going from a standard CD/catalog-sales musician to giving away all his music for free online, an act he called "professional suicide."

His article titled "Collateral Damage" is about where he is in this experiment. Five years ago he reckoned his sales at a mere 1-2k per CD. Many were released on small labels and when those labels went away the CDs became a form of orphaned work. Most importantly for Ostertag's calculations, he wasn't getting any money for them.

Compare that, then, with the experience of giving his music away for free download online. He reports that downloads are now 10-30x what sales numbers were, but on the downside people are not using his site's mechanics to donate money voluntarily in recompense for what they choose to download. Ostertag notes that this feeds his soul and motivates him - just as Swainston was seeking her own motivation. But also like Swainston, Ostertag has real bills to pay. And like Swainston, Ostertag pays those bills with a teaching gig.

Ostertag's column goes on to discuss structures and changes. Echoing points I noted last May, Ostertag agrees that music listeners never had it so good. Compared to five years ago, tens of thousands more albums are being released, millions of band pages are going up on MySpace, and (I would add) thriving efforts such as blogs run by DJs, musicians, composers, and bands reaching out directly to their fans and potential fans.

The question that remains unanswered, sadly, is whether something that is this good for music lovers must remain not so good for music makers. And really, how do we want to compensate people who are making all this music?

The real participants in this affair are the blog Techdirt, the award-winning nature photographer David Slater, and Caters News which claims to be the authorized syndicator for Mr. Slater's photographic work. However, the work in question here is a set of pictures that were taken by monkeys, who happened upon a camera that Slater had accidentally left in their reach.

Techdirt initially asked the question of who might own copyright in these photographs, and published a couple of the images about a week ago. It's a cute and funny story, and nobody thinks much more of it apparently. That is, until the day before yesterday, when Techdirt receives (and publishes) a letter from Caters in which it claims to be the syndicator, claims that Techdirt is using photographs to which it doesn't hold copyright, and demands that they be taken down. But what about fair use, counters the blog?

It would seem - and the blog entry is pretty lengthy and extensive on this point - that Caters either has never heard of the concept or doesn't want to admit that it exists. Techdirt seems to be of the opinion that no copyright exists, which I think is wrong for reasons I'll explain in a moment, but they also have gone to a pretty decent length to check with lawyers and are on solid ground for using the images. In fact, a couple of the images can be seen with Caters' ghosting on it, so it's not like TD are claiming originality in these images. They're just pointing at them and saying "hey, here's an interesting story."

Now, the place where I disagree with them is whether or not a copyright exists and if so whose copyright is it. Let's start with an agreement that the monkeys that took the original photographs don't own any copyright, by virtue of copyright being granted to persons. I don't even want to touch on the question of what "moral rights" they might have in Europe - let's stick to US/Berne-style laws.

The problem is that the image presented on the Web isn't the image taken by the monkeys. It's a derivative work. As someone who spends way-too-many-goddamned-hours in Photoshop I can tell you that the process of turning a RAW into the PNG or whatever format gets published involves both mechanical and creative processes. Color correction, light balance, and image cropping are easy examples of places where a photographer applies creativity, skill, and knowledge to get a final output. I'm still no lawyer, but as I understand copyright if I take non-copyrighted source material and apply creative processes to get a new derivative work, I can own copyright in the result.

I don't think there's much debate about "West Side Story" being a retelling of "Romeo and Juliet", nor do I think there's a lot of debate about whether or not WSS is a copyrighted work. I think the exact same logic applies to these photos. Calling them "pictures taken by monkeys" makes for an amusing headline or two but it doesn't match up with reality.

The hook for the story is the for the first time in the digital music age (since 2004) album sales are up. Admittedly it's only 1%, but when you reverse a seven-year trend even for a moment that's kind of news. So of course one wants to answer the question of how this happened.

To his credit, Sandoval doesn't just take the easy answer - oh, they shut down LimeWire - though he does touch on that point. Instead he delves into a variety of factors and possible explanations, looking at local phenomena such as the sudden rise of Adele, a Brit-pop star, and the recent release of a popular Gaga album. In addition, he notes that there has been some potentially disruptive pricing going on with Amazon selling an entire digital album at 99 cents, and standard catalog CDs selling for USD 4-8.

Remember the days when CDs cost more than DVDs? Yeah that was back in 2004-5, which is when the album business was last growing in profit. Those days are long gone, and I suspect the days when disruptive pricing can have a significant impact are numbered already, too. The impact of social networking on music sharing is only beginning to be felt - here's a Mashable by Ben Parr on how to use social media for sharing, for example.

In addition, as Sandoval's co-writer on CNET Lance Whitney wrote just a couple weeks ago, there's a huge rush on to move people to 'cloud' music services. Each service has its own spin on rights, uploading, and permissions but all depend on the notion that people no longer want to "own" music so much as they want to listen to it wherever/whenever they are. If the cloud services succeed it will make the entire past couple of decades worth of argument about rights and ownership seem as quaint - and as irrelevant to the masses - as a discussion of whether the fish fork or the salad fork should go on the outside. (Image nicked from homeworkshop.com - click through to see it in context.)

This one is just too good to pass up. Answer: they share a 'business model' - sue your customers.

The Palm Beach Post News reports that porn producers are mass-filing lawsuits against IP addresses. Does this sound familiar? Yeah, it's the same deal.

Allegedly, computers at those IP addresses - 1,300 in two Florida counties alone and the EFF estimates as many as 150,000 nationwide - downloaded porn films. The question of whether the computers' owners or the people named in the lawsuits did that, or even knew it was being done, is left as an exercise for the courtroom. Except most people won't get that far

As with the Cartel's jihad, the goal of this campaign is a simple shake-down - get people to pay up (USD 1500 per settlement) rather than fight. As with the Cartel's jihad there are the obviously wrong targets - the old granny, the providers of free wireless, etc. But that's not going to stop this jihad either.

The fact that you'd have to go into court and talk about your porn-viewing habits (or lack thereof) just adds a layer of delicious embarrassment to the whole deal. Corynne McSherry of the EFF gets a quote in the story, but it's up to another lawyer to call a spade a spade. Lory Lybeck calls it:

A perfectly designed extortion scheme

I haven't looked into the details, but presumably there is some kind of DRM wrapped around the file download that Adobe's PDF readers recognize and use to block your reading it seven days after download or after first opening it.

Bernstein points out that many people buy books at full price and then after they are finished with them, re-sell at some small loss on Amazon anyway. Other people (like me, sadly) buy books, read them once, and then shelve them never to be opened again. For these sorts of people the limited license might be a good idea, at least from a cost perspective.

The problem (which people are pointing out in the comments on the blog entry) is that this model blocks use of the work for reference. A limited license might be useful for books that are more entertainment-oriented and less reference works, but it doesn't seem likely to catch on with weighty law tomes, even though those tomes tend to be pretty expensive.

A few days ago, on the occasion of John Locke becoming "the first self-published writer to sell a million Kindle electronic books", Liam Allen for the BBC takes a look at self-publishing, independent authors, and the state of the business as he sees it.

Allen points out that there are now multiple success stories we can point to - people who were turned down by traditional publishing houses and who have gone on to have best-selling self-published books, even beating out well-known name authors in sales rankings. There are also bonus points for authors having more control, and taking home a much larger share of the sales revenue.

That said, an author can't just hand over an e-book and expect it to sell itself. The author has to take on many of the duties previously handled by the big publishing houses - promotion, marketing, and fulfillment among them. Some of the self-publishing enterprises give authors mechanisms for this, but none are offering the kind of full-service boutique you get from, say, a Random House.

Pricing is also a challenge that the self-published author has to surmount. Allen quotes Locke as saying that the 99-cent pricepoint of his e-novels was originally intended as a "loss leader" but in fact they've become his biggest sellers. Shades of Cory's argument that giving his stuff away was selling the hell out of it. Low pricing itself can be a two-edged sword. People (fans) who get used to a low price for one book may not stick with you if you raise the price and even though e-publishing systems often give authors the chance to change their selling price, there are no clear guidelines about whether or not to raise or lower a price.

I think one of the sure signs that self-publishing will have arrived as a well-accepted business model will be when we begin to see real statistics and case studies around these issues - and not just the current crop of how-to books. If those rigorous studies don't already exist, I predict we'll see a good sampling of them before this time next year.

I have no affiliation with Exquisite Corpse, but I've been asked to pass on this announcement which sounds pretty cool, so:

Exquisite Corpse is seeking artists interested in collaborative works for a curated show in Chicago this fall. The application deadline is Wednesday, July 20 and you can find both the artist application and instructions over at the artistsonthelam blog.

Artists will work collaboratively in groups of 3 or so on pieces for the exhibition.

With all the serious doom-and-gloom stuff of this month I felt we needed a bit of a humor break, so here's the delightful Vi Hart visually expressing her outrage at the silly notion someone would make a copyright claim for a song based on the first few digits of pi.

One of my current hopes is that my younger son who, at age 8, thinks the Fibonacci Sequence is cool, grows up to be like Vi with a love of math and art and music and no hesitation about sharing it with the world.

That's important in this case because there are laws, generally classified under the realm of eminent domain, that control how and when a governmental entity can take what is nominally private property. If we're treating intellectual property in this way then you can, in theory, apply eminent domain principles to a state actor taking intellectual property.

To my knowledge, this is a novel theory. Or it was until last month when NeuroGrafix, a medical imaging company, sued the regents of the University of California for infringing NeuroGrafix's patents, on the theory that their infringing activity constitutes an illegal taking under the rules of eminent domain. NeuroGrafix will argue that a taking of this sort requires both due process and potentially just compensation, as guaranteed by the 5th Amendment.

Why go through all this indirection and not just sue UC for ordinary infringement? Well, the short answer is "you can't"(*). States enjoy what is called sovereign immunity - you more or less can't sue them for damages without their consent. There was a case in 1999 called Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank that dealt directly with the issue of patent infringement claims. Since UC is an arm of the state it enjoys that immunity umbrella.

Like all novel legal theories, this one will likely need to be put to the test more than once before any law is considered decided. For example, I'm not clear on what NeuroGrafix will argue is the "taking" in this case, or how they'll try to value the property lost, for which they'll claim compensation.

That's part of the danger of making this analogy between physical and intellectual. We've all seen ridiculously inflated damages claims in IP cases before. H/T to PATNEWS for the pointer; this case doesn't seem to have gotten much mainstream media attention.

(*) the whole notion of sovereign immunity is still much in debate. The Wikipedia entry for the 11th Amendment, which established this immunity, notes that as recently as 1999 the Court split 5-4 on an immunity question.

Pandora also has more fees going out to BMI and SESAC and has yet to come to terms with ASCAP. Once all that and the 2015 increases are factored in the cost to Pandora will be just about at the level proposed back in 2007 that would have killed the service. In theory, ad revenue available now and growing ought to be enough to cover those additional fees, but somehow I doubt it.

For those who haven't been following this story for the past few years, John Shinal's MarketWatch column has a good bit of history, going back to the time period when I thought Web radio was going to be killed off. It appears that they got an 8-year stay of execution but unless something changes radically I won't be holding any of their stock as a long-term investment.

He reminds would-be screenwriters that ideas can't be protected in the first place, only tangible forms in which the idea is fixed. In addition, he notes that:

[T]here is no bigger sign of an amateur than someone who’s worried about their stuff being stolen

In Hollywood, as elsewhere, creativity is a collaborative process. Ideas have been done a hundred times before and been seen by the producers at least ten times before. Real people who really work in this industry share, critique, feed off each other's stuff, pay homage, make suggestions, and in general participate in a free flow of ideas that feed the creative process.

Gervich's advice to aspiring screenwriters is much the same advice as is given to authors in other fields: make your stuff unique. Make your voice stand out. Make a contribution that is wholly yours and that cannot be replaced. The idea is not unique - the writer is. Separating the two, and focusing on protecting and nurturing the latter is the whole point.

The article author, Adam Liptak, reports that the dictionary authors themselves are puzzled that the Justices seem to need to be sure what words like "prevent", "delay", and even "of" are supposed to mean.

“I think that it’s probably wrong, in almost all situations, to use a dictionary in the courtroom,” said Jesse Sheidlower, the editor at large of the Oxford English Dictionary. “Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them.”

I find myself wondering - do the Justices really not know these words? Do they think Congress intended some specific meaning for these words that can be intuited from dictionaries? Are they comparing dictionary definitions of words with the (admittedly specialized and often obscure) words used in patent applications? And to echo Sheidlower's point - do they not realize that dictionaries don't set rules for word use - that went out shortly after Daniel Webster died. Rather, a modern dictionary attempts to capture how words are used and meanings assigned to them by the population the dictionary samples and addresses.

I wonder what they'd make of Urban Dictionary.

News of the Weird has this great section called "News That Sounds Like A Joke" in which they report on things in the actual news media that sound on the surface like someone is pulling a prank. Today's entry falls in that category.

A reader sent me an incredulous note pointing to a story by Philip Elmer-Dewitt on CNNMoney about how Apple is trying to stop people using iPads and iPhones as contest give-aways. Even better, you're not allowed to use the Myriad Set font; long-time Copyfight readers may recall that I'm a bit of a font geek, too.

As the person who sent this item to me (the company that hosts my personal Web site) said "When I give milk away I don't need to talk to my grocer, a farmer, or a cow". Indeed. Beyond that, I got nothin'. Is someone pranking CNN here?

The artist who created the tattoo, Victor Whitmill, claims copyright and sues for infringement. Post walks through the elements necessary to establish copyright - and remember that since Berne there is no requirement that copyrights be registered in order to exist. If a tattoo can be copyrighted - and Post strongly agrees that it can be - then the work was copyrighted as soon as Whitmill did it.

Post also dismisses a claim that "the human face cannot be a 'medium of expression' for purposes of the Copyright Act" but he does not deal with any of the issues I think copyright in a tattoo raises. For one thing, a tattoo is often done in more than one sitting. In the case of a complex tattoo there may be a session to set the outline, another session to fill in color and another session to do complex detail work or shading.

Unlike, say, a painting on canvas that may also be done in multiple sessions, the partially completed tattoo is shown and fixed after each session. The subject may - for example, due to lack of money - not return for follow-up sessions. Is the partially completed tattoo the copyrighted work, even if it differs substantially from the original agreed-upon design? Are there multiple copyrighted works created in series here? In this case we might think of a tattoo as more like a story that is printed in a serial form - each chunk/chapter that is printed is itself copyrighted, as is the final compiled work.

Tattoos also are often modified. A person may choose to have a tattoo extended, either by the original artist or by another artist, years later. Since copyright term is long enough to cover these periods do we have to treat these additional artworks as derivatives of the original? Do I have to get permission from the original artist to modify or add on to my existing tattoo? If I can no longer find the original artist does that make my tattoo an "orphan work" that I'm legally not allowed to create a derivative of?

And finally, where does copyright restriction intersect with our general laws on personal bodily freedom. Lawrence v Texas and other cases established some strong precedents on personal liberties - generally speaking I'm allowed to do what I choose with my body as long as it doesn't cross certain thresholds. Does my modification of my tattoo fall under personal liberty permissions even if it violates the original artist's copyright? What if my modification is always covered by my clothing in public and only visible in private; does that make any difference?

Copyright may, as Post claims, be a natural form of protection here but I fear it raises far more questions than it answers.

The notion that sharing something like a copyrighted newsletter would be fair use wasn't accepted by the court, and interestingly the company (financial firm Legg Mason) was found guilty of contributory infringement - the same thing that P2P software makers have been found guilty for - because employees used company resources to email around copies of e-newsletters.

The article is pretty basic, spelling out everything from the definition of a copyrighted work to a definitional footnote on the fair use exemption, but still interesting to me. The company I work for doesn't produce research - an umbrella term in the financial industry for any sort of material describing a company, its products, its financial standing, and/or its expected future performance. Nor do we consume it, since we're not investing our own or our clients' money. But many of our clients do produce large amounts of research, and all of them subscribe to several forms of it. I imagine many of them would be surprised to read what was decided in Lowry.

Research producers have tended to follow models similar to software producers in dealing with clients - minor copying is generally ignored; egregious copying is discouraged or prosecuted as a last resort. And also like software, you can buy multi-seat or sometimes site-wide subscriptions to research that lets you sidestep the entire copyright question entirely. And like software, the research industry is at a loss to know what to do with the new modes of distribution such as e-readers, tablets and other mobile devices.

Meanwhile, I wanted to point to three recent stories that touch on this topic. First, there was a big announcement today that GlaxoSmithKline (GSK) would be lowering the prices on certain vaccines sold in developing countries down to something like 5% of their US cost. On one level this isn't all that big of a change - GSK has long had what it calls "tiered pricing" and vaccines outside the US can be had for half or less the cost we pay here. A 95% reduction then means that the drug will be more affordable to more countries, particularly in the poorest parts of Africa. One of the vaccines involved in the new announcement protects against rotaviruses that are said to be responsible for half a million child deaths annually across Africa.

Technically the virus itself isn't fatal; it causes diarrhea and dehydration that do the killing. This matters a good deal in the developed/developing world divide. In the US if you get a rotavirus you'll probably be miserable but you can get treatment and won't likely dehydrate. But in the developing world where access to medical care on-demand is rare and parents may not be as well educated to recognize symptoms early the results are much more often fatal.

The reduced prices for the drugs will be paid by foundations and grants led by the Gates Foundation. In an interview on NPR (which I can't find the link to as of this writing) the GSK spokesman said that the 5% sale price was essentially at-cost, covering manufacturing and distribution. The drug companies then will not be losing any money on the production and presumably the other costs associated with the drug are covered by the higher prices paid in the developed world. The free good PR probably doesn't hurt either.

Speaking of higher prices for US patients, Reuters has a story on how the increasing costs for cancer treatments are pricing them out of reach of many Americans. The picture painted by this story - of people driven to bankruptcy, people giving up on treating cancers that should be treatable - stands in stark contrast to the rosy picture of the vaccine story. Reuters' piece focuses on a study by a Dr. Lee Schwartzberg that looks at new oral means of administering medicines. In theory oral medication should be cheaper for the patient than the traditional IV since it involves less equipment and fewer skilled personnel. However, since the new therapies are all under monopoly (patent) protection there are no generic equivalents, no price competition, and the result is that people are unable to afford the drugs that would save their lives, or their childrens' lives. In a parallel study by a Dr. Yousuf Zafar at Duke, it was shown that the people struggling with these bills are not the poor and uninsured. 99% of these people have insurance, with 83% having some kind of prescription coverage. Still, the prices are too high. It's a shame that this story isn't getting the same prime-time airplay that the first one is getting.

Finally, a nod to a Volokh Conspiracy post by Eugene Volokh about Mayo Collaborative Servs. v. Prometheus Laboratories, Inc.. This is a fantastically important case debating the question of the scope allowable for patent claims that deal with observable "correlations between blood test results and patient health". The case has been to SCOTUS twice and been remanded down for further argument both times. (See also the SCOTUSblog page.) It's up for certatori again and if you're the praying type, pray that this one gets cert. The way the law stands now, a set of patents (in this case owned by Prometheus) can constitute a huge and very broad monopoly, effectively preempting any number of uses or observations of naturally occurring phenomena. If that is allowed to stand, not only will competition be stifled but whole lines of research and investigation will be snuffed out because they're based on observing naturally occurring phenomena.

And more people will die.

Vevo puts a lot of official music vids up on YouTube. As I mentioned back in March, there's now an expectation that your device will be able to connect to the cloud and get you the music you want so there's really no need to keep your own MP3 copy of it. Vevo is supplying this demand with tons of free music, and taking the opportunity to promote itself, its artists, and its corporate and advertising partners along the way. I can't tell you if they're making money at it, but I applaud them for trying to build a new business model.

Now if your device happens to be a hand-held mobile device (still called a phone for about the same reason we called cars 'horseless carriages' at one time) then your likely method of pulling from the cloud will be an app. And as part of its strategy, Vevo has teamed up with YouTube to release an app that attempts to fulfill users music needs by directing them to all this content Vevo has put on YouTube.

And because they seem to be hip to their audience Vevo isn't just running ordinary ads for this app. Instead they've hired DJ Earworm, who is well known for his masterful mashes of pop music, to create a mash-up ad. Earworm has taken seven songs and videos from Vevo's content and produced a mash-up that promotes the app, Vevo, and YouTube.

Free apps, and advertising, are notoriously hard to measure for effectiveness. If you charge for an app, or for content, you have easily available numbers that can be read for effectiveness. Whole books of economics are written around things like price elasticity and the balances of supply and demand - and all of them rely on simple transactional records to demonstrate their points. This here is much more slippery. Vevo needs to make a profit to stay in business. Will its advertising, its association with a popular remixer, and its head-first dive into providing free streaming music from the YouTube cloud help that? I have no hard numbers, but my gut tells me yes, they're on the right track.

NYSE sent a letter to TPM claiming that the photograph accompanying that original TPM story violated NYSE Group's "Registered Trademarks." This is... um, hogwash I think is the polite term. First of all, a trademark isn't a copyright. To violate a trademark is to create confusion about the mark and anyone who thinks the TPM story was published or endorsed or paid for by NYSE is on crack. The use of the photo with that story isn't going to confuse anyone about what NYSE does, another purpose of a trademark.

This is pure legal FUD, and shame on NYSE's lawyers for it. (h/t to Volokh Conspiracy for the original pointer.)

(Full disclosure: I work for a company in the financial industry; as such I'm prohibited from trading in certain instruments related to the financial industry. The company I work for does send lots of order flow to NYSE and we have products and corporate agreements in conjunction with them. I've even partied on the NYSE trading floor, once. If any of that constitutes conflict of interest, well now you know about it too.)

For a while in the 80s and 90s it seemed like shared universes were all the rage. The idea was that one or two authors would create a premise - usually an idea/event/location/character and then invite their friends to write in that universe. Reusing characters, sharing settings familiar to readers, and building on the central foundation were all common themes. The two shared universes I spent the most time in were the Wild Cards and Borderlands spaces. Commentaries about teen escapism can be elided, thank you.

After more than ten years with no material, Terri Windling's Borderlands have returned with a new anthology called "Welcome to Bordertown". As with many sub-cultural things, the Borderlands have been kept alive in the past decade by fans who have celebrated the ideas and characters in games and costumes and of course fan fiction. The signature "punk elf" has permeated the genre and spawned dozens of imitators and homages. A new generation of readers has found the books, and some of those who loved the Borderlands universe as kids have grown up to work as writers themselves. The new volume collects some of this new enthusiasm as well as bringing back old favorite authors as well as new voices.

Some of the old material is now available on the "Welcome to the Bordertown" Web site - including free-to-read copies of three of the stories from past publications in the shared universe. Other material is posted elsewhere; I would be remiss if I didn't point out that Copyfight favorite Cory Doctorow has a story in the anthology, which is also available free on the Tor Web site.

"Shared" doesn't mean "free," though. Like other sole-written material, the characters and images and signature names of the Borderlands remain the copyrighted property of their authors, and you can see careful footnoting and cross-referencing from story to story. On the consumerist hand this is great - it's one of the original "people who bought X might also like Y" reference links. On the free-ist hand, it's less exciting. Windling and her co-contributors make choices about who they want to let play in their playground and the rest of us have to go make our own playgrounds for now. Some day Borderlands may be free and open to all to use - this latest release reminds us why that's so desirable.

The result, called "Scene 64" in the contest, will be posted for voting and a popular fan choice will be incorporated into the film, with the remixer getting a screen credit. I haven't looked into the details yet - it's not clear if you can upload your own original elements or only use the bits already in the library. So it's probably not a full remix for the film itself, but the free availability of this content almost certainly guarantees that other remixes will be made.

According to a story by Nelson Wyatt for The Canadian Press, the National Hockey League is suing one of its biggest fans for $89,000 for showing his team spirit.

The claim is that restauranteur Fadl Issa violated NHL copyrights by displaying a banner and a picture of someone wearing a Canadiens jersey. Not satisfied with that, the league is also demanding that the hockey enthusiast also not use the phrase "Go Habs Go", which it claims is a trademark. Presumably, the NHL would like to do everything in its power to discourage enthusiastic fans because that strategy worked so well for the RIAA.

In anticipation of receiving my own cease-and-desist letter I will keep this entry devoid of any pictures of hockey, fans, jerseys, logos, or slogans that the NHL might think of as its Precious.

Sandoval's May 4 column highlights points of the defense LimeWire is making against the RIAA's claim that P2P, and particularly the LimeWire client and network, are the cause of the Cartel's retail malaise. Part of what I excoriated Sandoval for was just foolishly parroting back the claims of a market research firm about that malaise. Now, just maybe, we'll get the truth. And we'll get it because the Cartel's own executives spoke it, and it is now part of the public record. The things we Copyfighters have been saying publicly, the executives were saying in private.

LimeWire's trial is in the penalty phase. They've been found guilty of contributing to illegal sharing, copyright infringement, and so on. The question to hand now is what amount of damages are they responsible for. To a significant degree the answer to that question could turn on the degree to which P2P and file sharing has been the reason for lost revenue in the Cartel's business. The Cartel's position, of course, is that it's all their customers' fault, and the fault of companies like LimeWire that served those customers and facilitated their sharing. But when you peek behind the curtain, here's what you get:

"[T]he real problem is that there is no technology coming from the record companies" - Doug Morris, former CEO of Universal Music

"[W]e inadvertently went to war with consumers ... [and] consumers won," - Warner Music head Edgar Bronfman, Jr.

"We can [compete with free]. We have to. It's just that we have to be creative and add value." - Universal Music CEO Zach Horowitz

"Burning and ripping are becoming a greater threat than P2P." - RIAA chairman Mitch Bainwol

As I noted earlier, I have a potential conflict of interest, so I'll refrain from my usual judgemental closing paragraph. I just wanted to see these words spread a little farther. In your own words, gentlemen. In your own words.

Boingboing and The Public Domain blog have remembrances up for Keith Aoki. Copyfight noted the publication of his Bound By Law comic five years ago. We join his friends and colleagues in mourning his passing. May his memory be a blessing.

As Al notes in the blog entry, his parody tunes fall under one of the traditional fair use exemptions and as such do not technically require anyone's permission. However, as a matter of his "personal policy" he seeks permission beforehand. In the old days, a tune that didn't appear on an album would be buried somewhere. These days, though, Al could still release his version, "Perform this Way", on YouTube, which is what he did, as well as releasing a free MP3 download of it.

This is an old lesson, but one that bears repeating. When you hear that $BIGNAME has said or done such-and-such, treat it with a grain of salt. Performers and creative types accrete layers of people around them as they get more famous and as often as not something that's attributed to a Big Name is actually just something a publicist or manager thought would be a good idea. One of the neat things about living in this future is that our new technologies sometimes allow those walls to be pierced, with interesting results.

In today's Doonesbury, Jimmy Thudpucker explains that it's all the fans' fault that the patron model has certain risks.

Here's the gist: this person is responsible for enforcing a contract between his organization and a broadcaster. The broadcaster pays for exclusive rights to film and sell recordings of an event; in return he, acting on behalf of his organization, agrees to help enforce the exclusivity by delivering take-down notices when infringing material (such as home-made recordings of the event) is found. So far so good, all in accord with how the Copyright Act envisions things should go.

The problem comes when people post their videos not to open sites like YouTube, but to walled gardens such as Facebook. The person gets a notification (say, someone sends an email saying "I saw a video of your event on Facebook") but when he goes to Facebook to search for the video he's prevent from searching it. The consequent is that he can't provide an adequate notice to Facebook.

The question to hand is whether sites like Facebook are doing enough to permit copyright holders to issue proper notices. I'm not certain. The notion of friends lists and posting things privately to your friends is inherent in most social sites; I don't want to lose that, nor do I think I want Facebook to be legally required to go on fishing expeditions through user content. On the other hand, if being less open is allowing Facebook to escape responsibilities that more open sites like YouTube have to handle, doesn't that encourage the walled gardens and discourage openness?

I'm not happy with either answer.

KV are taking a lot of heat for this debacle. The March of Dimes (a US-based charity focused on "healthy babies") announced it was severing its relationship with KV, a pharmacists group blasted the company, and the FDA responded to KV's cease-and-desist letters by encouraging pharmacists to continue compounding the drug on their own.

I believe that much of this would not have happened if the story hadn't gotten big-press coverage, and it highlights the challenges inherent in monopoly grants such as patents. KV's foolish behavior with its windfall is probably not reason to abolish monopoly grants, but certainly the government should be (more) careful whom it grants a monopoly on what.

Well, um, no. TorrentFreak's post-mortem on the shutdowns indicates that most were back on the net in a few minutes under new domain names. Sometimes it was a simple as changing a .com domain name to a .info or other TLD.

Of course the MPAA and government tout these as "successes" which leads to two possible conclusions. One is that they're just too stupid to understand how the domain naming system works; two is that they're just willfully misleading (that'd be "lying") to the public. Take your pick, and keep this in mind next time you see someone claiming that the COICA bill is a good idea.

I confess that the state of the industry scared me off back then. Well, here we are nearly four years later and the question still remains relevant. The industry is fragmented and disorganized, and one person's experiences may or may not be a good guide to others in what to do, what to avoid, who to do business with, and how it may all turn out. I was reminded of this by Cory Doctorow's latest column for Publisher's Weekly.

In this piece he talks about his own checkered experiences - including run-ins with Createspace - getting his story published and listed in the complicated DIY publishing world we have in 2011. In my social group we have an acronym for this - WoWftVoE. Words of Wisdom from the Voice of Experience.

Post makes the point that the decision to be rendered is potentially ground-breaking for not just YouTube but for the whole "safe harbor" exemptions provided by section 512(c) of the Copyright Act. These exemptions have allowed not just YouTube, but every blog, social site, site that allows user comments, and pretty much the entirety of what is sometimes called "Web 2.0" to flourish in conjunction with, rather than as slave to, copyright restrictions.

Safe harbor basically means that you, or I, or anyone else putting out material on the net or providing hosting for material on the net, can do so freely in good faith and when given information indicating that material we posted or hosted is violating copyrights we can then, post facto, remove that material. Viacom, representing the Cartel in this case, would like that turned around. They'd like to require that sites block material based merely on suspicious labeling, or other external markers. If I upload a photograph of, say, my dog and call it "Lindsey Lohan revealed!" the Cartel thinks that label is sufficient to require the photo hosting site to block my picture until they can inspect it to determine that it's not something Ms Lohan or a professional photographer would have a copyright interest in.

Post has put together a concise "brief" written with Annemarie Bridy and aimed at law professors to help them understand (and presumably educate their students) on just how wrong the Cartel position is. Post points out that pretty much all the successful Web 2.0 sites are American-based and operate pretty much only because they can use the safe harbor provisions to move huge volumes of content quickly. Take away this unhindered flow and... well, you'd have something that much more resembled Egypt, or even the U.K. where, despite a long tradition of radical speaking they have far fewer protections for online speech than we do here.

From a legal-path perspective there are two ways this can go. If the 2nd rules to keep the interpretation of the safe harbor provisions as they are then it would be in agreement with the 9th Circuit and it's extremely unlikely that SCOTUS would grant cert. If the two Circuits disagree, however, that's a standard way to get a case before the Court.

You are, in fact, a mashup of what you choose to let into your life.

There's really not much in his entry that will surprise long-time Copyfight readers, though I like his quoting Ecclesiastes. He touches on themes of self discovery and fan fiction and much more - I won't spoil it because you should read the original. It's a brilliant set of ideas to give to young artists and almost every one of those ideas violates some DRM policy or some copyright restriction somewhere. The lesson - the overall lesson that gives the essay its title - is that learning to do art is transgressive. To the degree that we crank down the screws of control we are stifling art, and destroying the learning process of new and undiscovered creative people everywhere. Rip, remix, release and in the process find your own voice and individual contribution to the stream in which we all swim.

With that out of the way, let me just say: CNET, you're wrong. Your headline writer is wrong, and Greg Sandoval (whom I normally think better of) is wrong. Allow me to demonstrate.

The headline is "LimeWire demise slows music piracy." And Sandoval faithfully repeats the claim of research firm NPD Group that

the percentage of Internet users who download music via peer-to-peer services was at 9 percent in the fourth quarter of 2010, compared to 16 percent in the same period earlier in 2007

Well, that certainly seems significant. In the three years since LimeWire was shut down, fewer people admit to shar... wait, you mean LimeWire wasn't shut down three years ago? Err, no. It wasn't. It was shut down in October of 2010. So approximately 2.5 months worth of LimeWire absence was included in the period measured, out of a total of 36 months. For those bad at math, that's less than 10% of the time.

The claim, then, is that an event that happened in the last 3 months of a three year period somehow caused a retroactive drop? Either that violates causality as I understand it, or someone in the P2P industry has invented time travel and isn't sharing it. Or maybe, NPD is full of shit and Sandoval is guilty of just repeating what he's told rather than thinking for himself.

To cut NPD a small amount of slack here, they do admit that former LimeWire users are moving to other sharing networks. But really, this is just marketing puffery. NPD has no idea what caused the drop in self-reported file sharing over the past three years. Maybe it was that people thought it was an increasingly bad idea to admit that they used LimeWire to random marketers when there was a relentless stream of bad headlines about LimeWire.

Or maybe - and here I think is where there's an interesting story Sandoval might have written - people are sharing music by new means. Look, for example, at music-sharing via Twitter, or how about a video that's over a year old telling people how to share music on social networks?

I found the above two links in under 15 seconds of "research". Were I an actual paid reporter - as Sandoval purports to be - I would have done some actual research (which is different from "market research" puffery issued to please a paying client) and found out more about where the music sharing has gone. P2P networks still have significant traffic in copyrighted files. But YouTube and Twitter and other "Web 2.0" sites have picked up an enormous amount of the slack.

And were I an actual paid reporter, I might have dug into what I think is possibly the most interesting music-sharing story of 2011, which is that people aren't downloading music as much anymore, but they're sharing it more than ever. Streaming music, both legal and illegal, is finally taking off in a big-time way. People no longer feel as much need to have their own copy of an MP3 on their disks because they're confident they can be connected all the time to a network that will supply them the sounds they want when they want it. Between broadband penetration to homes and a proliferation of pocket devices (mostly calling themselves cell phones) that have the ability to stream low-bitrate MP3s or better, we are likely to see the local storage of media go the same way as email has gone in the past decade. And that will impact old markets like P2P networks far far more than yet another sharing company shut down by the Cartel.

I hope to be writing more about this in the rest of this year.

(*) In my day job I work for a company in which Mark Gorton is a major stakeholder. I've met him twice at company parties. He has no impact on my livelihood directly, but the case against LimeWire has affected all the companies in which Gorton is invested. So there's a potential conflict that readers should know about when they consider my writing.

The 20-page PDF is a hodgepodge of wishlist items an enforcement bureaucracy can dream up, and it has the unpleasant behavior of lumping together all forms of IP crime. On the one hand, when talking about the manufacture of counterfeit drugs and fraudulently marketing them, you're talking about a serious crime with actual bodily harm or even life-threatening implications. On the other hand, the document does nothing to distinguish this level of crime from the kinds of behavior that have come to be treated as major crimes in the Copyright Wars - sharing files, recording movies off theater screens, uploading promo copies to torrent sites, and so on.

For example, the report recommends "Increase the U.S. Sentencing Guideline range for repeat intellectual property offenders" without any effort to distinguish the types of offenders, or the impact of the offense. This would, presumably include someone who shared multiple songs over a P2P network. Or perhaps you can throw mom in jail for longer if both her son and her daughter share music with their friends, or rip lots of CDs to their iPods.

While the introduction to the document claims that "legislative changes [will] increase the effectiveness of U.S. enforcement efforts" what this comes to in plain English is the idea that if you make more things into crimes, and make the penalties for crimes bigger then you've somehow improved enforcement. I fail to see that linkage.

There are a few proposals to increase the range of law enforcement powers; for example, "Give law enforcement authority to seek a wiretap for criminal copyright and trademark offenses." This might be an effective move. Unfortunately they're placed at the same level as recommendations such as "Give DHS authority to share information about, and samples of, circumvention devices with rightholders post-seizure."

In case you can't parse that, what it says is that the government will give commercial entities access to things like crack programs. Not that a company couldn't get a crack program itself, but knowing that this crack program is effective against that DRM system is potentially a competitive commercial advantage for the company getting information from DHS, and has no relationship at all to DHS's enforcement efficiency.

Finally, tucked in at the end of the report is a recommendation to create a new copy right:

The Administration recommends that Congress create a right of public performance for sound recordings transmitted by over-the-air broadcast stations.

(h/t to David Post from Volokh Conspiracy again, for pointing me to this one.)

David Post at Volokh Conspiracy writes about the US Supreme Court's decision to grant cert to Golan v. Holder, appealed up from the 10th Circuit. This case is interesting for Copyfight on several fronts, as it touches on issues of copyright, copyright extension (and retroactivity), and freedom of speech.

The case, with representation from Stanford's Center for Internet and Society, challenges a series of re-protections of works that were previously in the public domain, on the basis that such re-establishment of protection violates the First Amendment free speech rights.

The legal issue here is twofold: 1. What, if any, degree of First Amendment scrutiny is valid? One argument is that Eldred v. Ashcroft says that no First Amendment scrutiny is required - that all copyright extensions can pass muster without scrutiny. That, I think, is almost certainly wrong. The other side's argument is that any move that takes works out of the public domain is a speech restriction and thus subject to F.A. review.

That leads to the more interesting question: 2. What level of First Amendment scrutiny is to be applied, and do acts that place works back under copyright once they've gone into the public domain pass that level of scrutiny? This is a harder question to decide - I think we can all agree that changing the world such that you are no longer free, for example, to perform a particular work of art, is an impingement. If it's an impingement carried out by the Federal Government then I think it's pretty much a given that the First Amendment has to be taken into account. But even First Amendment guarantees are not absolute - there are a raft of exceptions carved out in various case laws.

Post writes, and I agree, that the present SCOTUS is unlikely to decide that placing public domain works back under copyright - whether by term extension or by international treaty as in this case - is sufficiently onerous as to rise to the level of prohibited restriction. But if they do agree that some level of First Amendment review is warranted that would be a small but important step forward. In particular, if Congress... I suppose I should say "when Congress" next decides to extend copyright terms, it would give us additional grounds on which to challenge such extensions

Under the heading "IP That Kills" I've visited this topic several times in the blog. Today we have two more entries on the sad roster of how we use intellectual property control regimes to kill people.

What makes this extra-special galling is that KV is not recouping any costs here. They didn't develop this treatment, didn't invest the hundreds of millions that some drug companies pour into the process of drug discovery and getting new treatments to market. No, instead the FDA just handed KV sole rights to produce the drug - that is, a legal government-protected monopoly. Patents give this sort of monopoly protection, presumably in return for the work done to invent a thing.

In this case, the work done to bring the shots to market was done back in the 1950s. Squibb used to make the shots but withdrew the product in 1999. Since then, availability has been spotty, but it's cheap and most women seem to have been able to get the supply they needed. The FDA's action was supposed to ensure a reliable supply of this life-saving medicine. Instead, their monopoly grant and KV's outright greed will end up killing people who cannot themselves, or whose insurance will not, pay the massive surcharges.

Lest we think that it's purely the US system that is this level of fucked up, let's take a look north of the border to Canada. Here we have an extensive piece by David Ng on boingboing that dives deep into Canadian Bill C-393.

Part of the reason we're still having this debate, and the heart of Ng's post, is that even though Canada tried to do the right thing - establish a regime under which the governmental monopoly grant of a patent could be modified - the resulting system was so complicated it was unusable. Canada's Access to Medicine Regime (CAMR) should provide a way out of the swamp - override or modify patent monopoly grants in cases of humanitarian need, without destroying the patent system entirely or capriciously. Unfortunately, it's too complicated and unworkable.

Which brings us back to C-393. It's what we software types call "a patch" meaning a code fix applied to make a system work the way it was intended. In this case the code being patched is the legal code, but the principle is the same. If C-393 becomes law no new abilities will be granted and nobody will get to do things that they couldn't under CAMR. According to Ng the target markets for these generics represent a "single digit percentage" of the drugs' sales, so the financial impact can be limited.

Unfortunately, it looks like C-393 isn't going to pass, either because of outright opposition or due to political maneuvering. And if it doesn't pass CAMR will continue to be bolluxed up and people will continue to die, needlessly.

You may recall that the indefatigable Professor Michael Geist kept us informed around ACTA, the supposedly secret treaty that was the US's first attempt to impose a restrictive copyright regime overseas. Well, hat tip to him again, as Friday he posted a warning on the latest attempt by the US to export Cartel Jihad.

This round goes under the innocuous-sounding name of Trans Pacific Partnership (TPP) agreement. But what this treaty contains is far from innocuous - it's a blueprint for replicating every lock, control, takedown, and prohibition in US intellectual property law into the legal systems of countries around the Pacific rim. It attempts to turn ISPs into copyright cops, and to tell other countries what they can and cannot issue patents on. As Geist says: "The U.S. plan is everything it wanted in ACTA but didn't get."

Finally, I couldn't resist stealing the image on this entry from l@w.geek.nz, a blog by Rick Shera who is himself a IP/Internet lawyer in New Zealand. He has a bullet-pointed post discussing this from the point of view of someone on the receiving end of this export as well as a Scribd include so you can read the original for yourself.

This is nothing new, of course. An enormous amount of Renaissance art was sponsored by Medici and Borgia patrons; in China emperors sponsored artists at the same times as they were slaughtering peasants. The only thing different these days is that we get to criticize arts patrons while they're still alive and watch the artists squirm.

One interesting tidbit for those interested purely in the business side: according to the NPR story, even highly successful touring acts can get 10-20% of their revenue annually from these private shows, so it's not necessarily a trivial thing to say "just don't do private shows." This non-trivial amount makes it more challenging to argue that artists should retroactively return proceeds from events put on by scummy patrons. And while it may be a good-will or good-PR gesture to do so, it's not clear to me that the artists are any more responsible today than DaVinci was responsible back then.

The band Arcade Fire recently won a Grammy and, as they're not a big-name, mass-produced, Cartel-controlled act there was a good bit of whining from that contingent over it. Suck it up and deal. I particularly liked this response from Scott Rodger, the band's manager:

"Arcade Fire are now one of the biggest live acts in the world. It's not all about record sales. It's about making great records and it's about building a loyal fan base. Ther band make great albums, they're not a radio driven singles band. On top of that, they own their own masters and copyrights and are in complete control of their own destiny. Things couldn't be better.

First some background for the newcomers: Firefly was a TV series shown starting in 2002 that never had that big of a following. It was a Joss Whedon 'cowboys in space' adventure that didn't achieve the massive following of his earlier Buffy and Angel series. As a result, it was canceled. Somehow, despite all that, a movie (Serenity) was made and delighted the show's fans. The making of that movie set the framework for a David (the fans, who call themselves browncoats) vs. Goliath (the big media companies) tale of struggle and eventual success.

Fox own the rights to Firefly and it's locked up in a vault somewhere. Nobody can make new Firefly material, despite the salivating fan base that want it. If you've ever been to the packed midnight showings of Serenity called "Can't Stop the Signal" you'd see how intense this fan community can be. And like most fan communities it doesn't want the story to end. It wants more stories, new material, and is willing to spend money on that.

So what? The fan base may be avid but it's not big enough to satisfy a corporate media giant. So the guy who starred in the series, Nathan Fillon, put out in a recent interview that if he had the money he'd buy it back from Fox and put the thing on the Internet. Presumably for free, but certainly more accessible to this fan base.

Maybe that's a stupid idea, if you're a major media corporate executive. Or maybe it's the most awesome idea for a crowdfunded project that has been heard in a while. Patrick Rothfuss, the author of Name of the Wind, thinks it's a worthwhile idea and he's offering to put the profits from his latest book behind the notion. And you know the fans were just waiting to jump on board this one.

Hibberd's EW story raises a couple of interesting points. One is that a handwave estimate of the rights' value is a lot less than the $300 million that Fillon guessed. But the big problem? Fox has no incentive to sell. They've got a property that's earning them some money without them having to lift a finger. Making new shows, movies, and so on? That costs money; that's risky. Their copyrights give them no incentive - or even a counter-incentive - to satisfying the fans' hunger for more and new material.

Which is sort of the opposite point of having copyrights in the first place. Copyrights are there to incent creation, not stifle it. I don't know if the Davids can overcome Goliath this time, but if they pass a hat around I'm throwing my money in again.

"May have been the losing side, still not convinced it was the wrong one."

The column, by Authors’ Guild leaders Scott Turow and Paul Aiken with professor James Shapiro makes a plea for support of the COICA bill (Combating Online Infringement and Counterfeits Act) that is presently before Congress. The column's authors ask whether we will ever manage to get another Shakespeare - or whether we even would have had the historical one - without the brave souls of the Cartel and Congress protecting us from the scourge of piracy and... OK, I can't keep this up.

First of all, as Post delightedly points out, Shakespeare lived, worked and died before the very first copyright law was ever passed. So, you know, without copyright laws we'd have... Shakespeare.

That bit of obfuscatory mis-history aside, the point of the Times column is to claim that the decline of things like traditional publication for books, newspapers, you name it is all due to illegal copying. Nothing is said about e-books, or about online publications, or about any of the myriad of causes a reasonable person might want to discuss in regard to the ongoing collapse of traditional publishing mechanisms.

Instead, what we get is defense of a bill that would create a legal pretext for silencing people that the Cartel doesn't like, without all that messy stuff about being able to defend oneself. It's just much simpler and more efficient if the authorities can be told to shut down sites that someone doesn't like. There's a nasty piece of indirection here since what's authorized in the bill isn't exactly silencing an individual - it's seizure of the domain name. The equivalent in the real world would be something like the authorities saying "We're not going to stop you talking - we'll just padlock all the doors from the outside and tell everyone you canceled your talk." Presumably some genius thinks this indirect approach doesn't raise First Amendment concerns.

Post's blog piece is itself passionate, making reference to the US's position as a "bulwark" of free expression and all that jazz. That's nice if passion is your thing, but I'm a pragmatist and pragmatically this bill is shite. As the attempts to keep Wikileaks dark have shown most recently you can't just grab a few domain names and expect that to be the end of it. Say it with me: the 'net treats censorship as damage and routes around it. Egypt tried to black out an entire country and failed.

If this plan really does go forward then there will be some serious questions raised about who owns domain names and to whom the DNS authorities must report. The US does not control (nor should it control) the world's DNS servers. If DNS servers in the US have a different idea of what the IP address is for a seized domain than DNS servers elsewhere it could be... interesting. In theory, DNS servers get their marching orders from the so-called "root" servers, which are supposed to be under the control of ICANN, which is supposed to be independent of national authorities. In practice the government has already carried out a few of these seizures and the ISPs have played along. If the ISP tells the DNS system that someone else now owns a domain there's little that anyone can do to dispute that.

Apparently Messrs Turow, Aiken, and Shapiro think it's just fine and dandy for ISPs to act as stooges for the US government. I wonder how they'll feel when the Chinese government decides that it owns domains and has its ISPs stealing away hosts that the Author's Guild cares about. Sauce for the goose, gentlemen. You are not going to like how this will go down.

However, 3D printing, particularly of objects for things beyond personal use, raises a host of intellectual property questions. If you print a copy of an object, what rights do you have in that object? What rights are potentially infringed if your printed object is a copy of another object that is protected by copyright, trademark, or patent - particularly design patents that are supposed to cover expressive elements?

Public Knowledge's Michael Weinberg takes a serious look at some of these questions from the point of view of someone who believes in the liberating and disruptive effects of this technology.

Weinberg's white paper is called "It Will Be Awesome if They Don’t Screw it Up: 3D Printing, Intellectual Property, and the Fight Over the Next Great Disruptive Technology" and is available for free online from the Public Knowledge site as text or as a downloadable PDF.

He covers all three major forms of IP protection in common use today, at least superficially. This piece is not an in-depth study; rather, it's an introduction to the issues that we will almost certainly see being litigated in this decade. That said, I have to wonder if Weinberg's starting analogy is not the right one. He likens the spread of cheap (sub USD 1000) 3D printers to the spread of once-expensive homebrew computers to hobbyists in the 70s and early 80s but I think from an IP perspective that's not a big deal.

The analogy that comes to my mind is the advent of the cheap "office copier" - back when Xerox and its competitors brought the technology of photographic reproduction of paper into hundreds of thousands of businesses and libraries. The result was a massive wave of copying - including significantly infringing copying - that took almost two decades to get used to and develop practices around. My guess is that even though a 3D printer is more useful for original creation than a copier was we're likely to see a similar set of gyrations and adjustments.

I do foresee a day soon when 3D printers will become easy and cheap enough to have in every home - a really disruptive moment when you need a new stapler or a new kitchen knife and just push a button to make one - but we're not there yet. Weinberg's paper is a call to action to the current wave of 3D hobbyists to work together in anticipation of that day.

Unfortunately, as Duane describes in great detail in her blog entry, life happened. Duane spends a lot of her posting apologizing to readers and sharing a bit of her perspective on the experiment. The big take-away here is that this is not all that unusual. Books are big projects and a tremendous amount can happen between the time a book is conceived and its eventual completion or - more often - abandonment. This happens a tremendous amount of the time in the conventional-funding publishing industry (last Dangerous Visions, anyone?) so it should be no surprise that it happened in a book funded by micropayments.

The challenge here is how to deal when something like this happens and that is completely uncharted territory. My hat is off to Ms. Duane not just for attempting a project of this highly experimental nature, but for how she is handling its conclusion. As I wrote earlier this week, I am still deeply committed to the idea that artists need to get paid for making art, but we clearly need to figure out how to handle what the software industry calls "error and failure cases" as well as successes. When I teach my Intro to HCI course one of the assignments for the students is always to go online and find an NTSB or similar accident report and learn how the physical world deals with failure cases - lessons the virtual world is still painfully slow to learn.

He notes Balzac's happy response to learning that someone had copied Balzac's writing and talks about how people start by stealing (or copying, in the art world) from the masters. Balzac, and Coppola, clearly care more about their legacy than the money they make right now. Coppola finances all his films himself and makes his actual money in the wine business. From this he branches off to talk about how modern our system of directly compensating artists is, and says "who says artists have to make money?"

Now on the one hand I agree with him - our current models are a recent blip on the historical radar. And it's true that creative people can keep their day jobs to pay for doing art that they love. Coppola also points to the patron model but as I mentioned when discussing Interfictions I don't think the model scales very well.

The other problem I have with Coppola's idea of disconnecting cinema - or other arts - from the idea of making money is that the ability to make a living doing one's art has enormous advantages. For one thing, it lures people. We all benefit from there being more art and though there are plenty of creators who will continue to create even when they have no hope of making a living at it there will be excellent creative people of all sorts who will be disappointed, hindered, or actively discouraged from pursuing their art by an inability to make a living at it.

Even if they are not completely turned off, there is a great deal of art that cannot be made part time, after hours, outside a work schedule, or under constant interruption. Much great art comes from the ability of a creator to lock herself away for an extended period of time and really focus on the creative work. Creative work is hard work, too. One of the greatest legacies of President Kennedy was his recognition that arts are worthy of support in the national sphere and the creation of the National Endowment. We live richer lives as a result, though I can't point to hard statistics to back that assertion up.

And likewise, my gut feeling tells me that we cannot simply dismiss the idea of artists making money from their art, no matter how much I respect Coppola and what he has done/is doing.

I had been meaning to note that, earlier this month, Fairey had settled his 'hopeless' case with the Associated Press. Hopeless referring here not just to the iconic "Hope" picture that caused the problem, but also in that I thought Fairey had rendered his own case hopeless when he admitted that he had destroyed evidence and his defense lawyers quit. But apparently they worked it out.

Whether or not Guetta will also be able to work something out remains in doubt. As Bonner describes, the Guetta case differs from the Fairey one in some significant areas, not least of which is the fact that Fairey's poster made the photo he used iconic where Guetta has taken an already iconic photo (of the rap group Run DMC) and used it without any credit back to the original. The shooter of that original, Glen E. Friedman, happens to have worked with Fairey in the past but that's about all the connection there is.

Bonner also points out that Fairey made such substantial change to the original photo that even the AP photographer who took it didn't recognize his own work for months; Guetta's changes are much less significant, and they're being made to a photograph that has been used and sold on its own for years prior to its appropriation. It's a whole other ballgame from the Fair Use perspective, which is probably how it should be.

(Image: Sean Bonner from a Times of India video still.)

The SG is the person appointed to argue the government's side in cases before the US Supreme Court, as well as the usual level of supervision and direction of cases you'd see in a high-level appointment. The SG rarely sets policy but by virtue of how cases are argued and in which cases amicus briefs are filed, the SG can be a powerful voice for shaping policy.

If you know Verilli's name before now it's probably because of his involvement first in MGM v Grokster and most recently in the ludicrous battle by Viacom against YouTube. I'm not even going to mention his tangential involvement in the Jammie Thomas fiasco series.

While I'm sure Verilli will have plenty of matters to argue during his term in office besides intellectual property, I find myself incredulously wondering why Obama seems unable to find any worthy prosecutors outside the RIAA's dogpen to appoint. Surely the US legal community contains scholars and experienced attorneys willing and qualified to take on the top jobs in the DoJ. Far be it from me to suggest that these appointments could be influenced by such trivial matters as who is giving the most money to whom in which political campaigns.

Most of what you need to know is in the headline: Michael Geist blogs that "the Canadian Recording Industry Association [...] have agreed to pay $45 million to settle one of the largest copyright class action lawsuits in Canadian history." That's huge, not necessarily in dollar terms, but in precedent. The Cartel have agreed that their practice of user songs on a list that was nominally "pending" payment (when payment was never sent) in fact amounted to theft.

This being a pre-trial settlement, of course, the Cartel haven't admitted to anything in the legal sense. It may be argued that they decided paying out CAD 45 million was cheaper than continuing to fight and stall. It was almost certainly cheaper than getting a guilty verdict in a court situation that might have exposed them to punitive damages.

Geist also notes that the settlement involves setting up a new system that will, one hopes, get the artists paid more promptly. And, one also hopes, without the need for a multi-year class-action lawsuit threat in the future.

A list that is a mere compilation is generally not copyrightable. However, various specialized lists can be copyrighted either by virtue of their arrangement (e.g. lists of court cases) or by virtue of their unusual content.

A few days ago Eugene Volokh pointed to a (dare I use the word) unique list - Schindler's List - and a copyright dispute surrounding it. Volokh quotes extensively from the court's decision in the case, known as Rosenberg v. Zimet which concerns questions of who holds copyright in that famous list.

I had thought that the only copy of the List was at the Holocaust Museum in Israel. It turns out that another List had been found and the question at hand is whether the person in possession of that List may publish or sell it, or whether it rightfully belongs to Schindler's heir, as one of his possessions. The Court's decision turns on questions of different varieties of copyright law (common law vs federal) and whether any rights to publication carry with possession of the list, which it seems clear they do not.

If you had any doubt left that 2010 was the year that mash-ups went mainstream, take a quick peek at the latest set of bits posted to promote Tron:Legacy.

The first item on the list is titled "DJ Breakdown" and it's a fan-created audio/video remix of Daft Punk's (themselves master remixers) soundtrack tune "Derezzed".

The war over ownership has moved to a new stage - creation becomes not just product but source material. In 2011 you will see more companies moving to co-opt, own, and control the remixers and the remix processes - even the Cartel will have to get involved. You'll continue to see ridiculous takedown notices and attempts to limit what people can do and see and hear. But these are rear-guard actions. The remix, the mash-up, are here to stay. Now the battle moves to who gets to make these on whose terms and what control is laid over the result.

In part 1, Price takes direct aim at the doom-and-gloom that is surrounding the Cartel, and notes that even if you use the extremely conservative Nielsen numbers, music purchases are up 50% in the period 2006-2009. These numbers are conservative because they don't account for a whole lot of ways that people get music these days, which is to say not as 'albums' packaged and promoted by the Cartel. That form? Doomed. Music itself? Alive and well. If this argument sounds familiar, it should: Marc Weidenbaum made this point back in May, though he did it artistically rather than by crunching the numbers.

I won't spoil the rest of Price's entry - you really should read the whole thing (there are links to the other parts at the bottom of part 1; for some reason the TOC at the top is not hot-linked). But I did want to call attention to another important part of his data:

"More musicians are making money off their music now then at any point in history [and] the amount of money going into the artist's pocket has increased."

As a generous interpretation I can say that you have confused your own profits and antiquated business models with what you're supposed to be in business for, which is helping artists get known, be heard, make a living, and get paid for their art. I have freely confessed that I don't have any prescriptive solutions to the problems. At best I can point to experiments in patronage models, crowdsourcing, remixing, and free-sells-more that are going on right now. If Price is right, then maybe we're starting to accumulate some evidence that these models - a thousand flowers blooming - are starting to work.

Copyright The Financial Times Limited 2010. You may share using our article tools. Please don't cut articles from FT.com and redistribute by email or post to the web.

In contrast to certain paywall isolationism it's a breath of fresh air to see a mainstream media outlet take a more sensible posture.

Back in June of last year, the Cartel appeared to think that getting a huge jury award against Jammie Thomas (now Thomas-Rasset) wasn't necessarily a great thing. They were willing to take USD 25,000 in order to get Judge Michael Davis to vacate his judgment that the original award was "monstrous and shocking".

So far Thomas-Rasset has refused all settlement offers (to my admitted surprise) and the case has yet to reach a higher court level where the overarching constitutional and precedential matters would be considered. The issues raised in 2009 are still hanging out there.

Steven Musil reports for CNET that the latest award, of 1.5 million will also be appealed. It will be interesting to see if the Cartel continue to make settlement offers of pennies (or hundredths of pennies) on the dollar, in order to avoid arguing the case before higher courts.

This is an actual problem I have, and I've been unable to figure out a good answer to it, so I turn to you, my readers, for pointers and advice.

Some time ago, I made an audio recording of an author reading her own book. The recording was made with the author's knowledge and (verbal) permission. At the time, no audio version of the book existed. Since then, the book has been reprinted and an audio version of the reprint is now being sold.

Question: is my recording of her reading more like a performance recording, or more like an audio book? I don't think I can (nor do I plan to) sell copies of my recording, but I have considered putting it online for others to share. I suspect I'd be violating some copyright or other law if I did so, but I'm horribly unclear on the relationship of recordings-of-live-performances versus staged recordings such as audio books.

A Copyfight reader sent me a pointer to an entry in The Economist's Science & Technology section on a budding compromise in the font stalemate. The WOFF (Web Open Font Format) - a W3C working draft at this point - is a proposal mostly from Mozilla and a couple of font houses. The proposal avoids complicated cryptographic or other digital lock technology in favor of clear-text statements of ownership.

At this point it looks like all the major browser-makers will support this proposal either in current or near-future releases, and since the proposal comes from W3C it's likely to be completely compatible with the CSS rendering standards that browsers also support. In order to promote further compatibility, WOFF positions itself as a container (envelope, or wrapper) that can be put around the currently standard TrueType, OpenType and Open Font Format fonts. This means that existing fonts can be folded into the system with relatively little extra work, and the browser-makers don't have to write whole new decoders to handle WOFF-compliant font files.

In order to limit unwanted sharing, the WOFF spec says that the user agents (browsers, commonly) that implement the WOFF standard should not pull the fonts from other sites, unless explicitly allowed, and should not make the pulled font available to other programs on the end user's computer. That's slightly inefficient but probably the minimal compromise necessary to help font designers/publishers feel that they can trust their wishes will be respected.

As a matter of technology it's trivially true that a specification and plain-text metadata aren't strong protection. However, this practice follows the social conventions and customs used in things like Creative Commons licenses and given that it is in the interest of both the browser makers and most Web content designers to see this succeed I believe this is the right approach. It's much more important to make it easy for the good guys to do the right thing than to divert resources to stopping bad guys from doing the wrong things.

John Daggett has a nice summary and some practical examples over at the Mozilla blog. The image above was nicked from Stephen Shankland on CNET, who credits it to Erik van Blokland from LettError and Tal Leming from Type Supply, two of the major movers behind WOFF.

In an attempt to get around what seem like heavy-handed rules from the Canadian government, the scientists' union has put up a Web site to publicize members' work.

The Globe and Mail has coverage of the issue, noting that there seem to be an increasing number of hoops for government scientists to jump through if they want to talk about their work to the media. The fear, of course, is that the intention behind all these new rules is to move away from science-based policy making. This is presumably because the science doesn't support the pet policies of those in power.

I've been a big supporter of direct-to-the-public science publication for as long as it has been available. More science available to more people is hands-down a good thing. So bravo to the Canadians here and let's hope more people take advantage of the work that - at base - their tax money was used to create.

But then again, he'd need it to hold that much tongue. Except holding his tongue has never been his strong suit, has it.

The ex-KISS bassist has managed to get himself a personal Google headline

"Make sure your brand is protected," ... "Make sure there are no incursions. Be litigious. Sue everybody. Take their homes, their cars. Don't let anybody cross that line"

Audrey Waters noted for ReadWriteWeb that this is part of Anonymous' campaign targeting some of the most litigious "pay up or else" sites. Simmons' bluster about calling in the FBI and tracking down these crackers notwithstanding I get the feeling that this is really a tempest in a teapot.

Rich aged white rock dude makes stupid copyright lawsuit remarks, annoys people. See Metallica over in that old corner? Simmons can go sit with them. I don't expect any of them to catch on to the fact that suing your customers sucks as a marketing plan.

A notice of filing an amicus brief from the EFF reminded me that I had also meant to blog about Vernor v Autodesk, another crucial case that has received far too little mass-media press attention.

OK, let's take it one step at a time. The basic idea, which has long been held to be valid copyright law, is that the legal buyer of a copyrighted product may resell that product within certain limitations. For example, I can't claim that a resold product is mine or otherwise commit fraud, but in general the legal sale of a legally bought copyrighted work is... well, legal.

Or it was until some software marketing weenie got the brilliant idea to stick a shrink-wrap/click-through license agreement on a pile of bits and claim that you didn't actually buy that program you think you bought. You're just leasing it. And since you're not a legal buyer you don't have the rights of a buyer, including the right to resell.

It will surprise approximately no one that the software makers and the MPAA all sided with Autodesk in this case. Ebay and the American Library Association sided with the defense. And, as I mentioned at the start, the EFF has asked for an en banc hearing on the issue.

The sad part is that once again the software makers are failing to understand their audience. People who buy used do so because they can't afford the full price of something. Even if it was possible shut down the entire legal resale marketplace (which it's not) the fact that someone can't find a legal resale copy is not going to make them suddenly able to afford the product in the first place. What will instead happen is that people will find something they can afford. Torrents are still free, last time I looked.

There's another interesting sidebar to this, which is that SCOTUS is set to consider a case this term - Costco v Omega - in which the question at issue is whether the fact that a product was created overseas has any bearing on the applicability of first sale doctrine.

Back in September, EU judges ruled in favor of Mega Brands and against Lego, canceling Lego's trademark on the brick. The ruling, which took out a trademark that had been in use since 1999, was deemed to create an unfair monopoly on a functional shape.

Greg Aharonian had a nice follow-up piece in PATNEWS noting that Lego also owns a number of related US design patents that might similarly be at risk. The challenge in understanding how this might fall out is in distinguishing 'ornamental' from 'functional' elements. For example, in a Lego brick the distinctive round pieces on top are ornamentation on a basic brick shape, but they're also key to the block's functionality as they are the part that plugs into the base of other bricks. In theory design patents are used to protect nonfunctional ornamentation - often called aesthetics or decoration. But in the Lego brick, separating ornament and function isn't so straightforward.

Rachel Gordon, in an Intellectual Property Brief posting for Washington College of Law, points out that Lego has been moving to protect its brand trademark, by working to separate the word "Lego" from the generic "plastic brick with studs on top." But this isn't going to help them recover their brick trademark, nor does it help with the question raised about the functional/aesthetic fuzziness.

Unfortunately, news stories on the topic have been nonexistent in the past month; anyone got any insights?

Also available for those who can't get enough reading about copyright (also free to download) is a collection of essays edited by Michael Geist and dealing with the Canadian Bill C-32, the debate over which back in June prompted Canadian Heritage Minister James Moore call opponents 'radical extremists'.

Long-time Copyfight reader Eric Anderson has been working for years on the history of copyright within the U.S. with a particular focus on the 19th century. He recently sent me a note to let everyone know that he's put his book Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891 up on archive.org under a Creative Commons license that makes it free for non-commercial use.

On a personal note, Eric mentioned that he's left academia and we wish him well in all his future endeavors.

This is an age-old debate that periodically pops up in this blog as well: if we're going to protect the creations of artists and others it's important to understand the sources and methods that go into those creations. Do I think Lucas and his film team "stole" Chewbacca and should be punished? No, of course not. But I do think they should be more up-front about the ways in which their creations are based off the work of others, and be a lot less hostile to the derivative works created by fans and others who've taken from the film's material, in much the way that Ralph McQuarrie did.

None of that seems to bother the authorities, somehow. Instead, according to Cliff Levy's article, the Russians have made "dozens of similar raids against outspoken advocacy groups or opposition newspapers." Suspicious much?

Microsoft comes in for criticism is that it has apparently known about this for months and done nothing. Levy further notes that human rights groups in Russia have been trying for months to get Microsoft to act. According to self-proclaimed cyber-cynic Steven J. Vaughan-Nichols in ComputerWorld, Microsoft has even gone so far as to provide information to support the police actions, though Microsoft claims those are just local lawyers it hired and apparently failed to supervise adequately.

It seems that the light of publicity is finally spurring action, though. Today's update to the story comes from Fred Weir at the Christian Science Monitor: Microsoft is offering, essentially, a shield license for journalists and NGOs. These organizations and individuals would be able to have free legally licensed copies of Microsoft products, which would end any IP-related pretext for the police raids. In addition, Microsoft are supposed to be setting up a legal assistance program to help NGOs who have already lost their computers prove that they had legal licenses to the Microsoft software on the machines.

In a sense, this is a "better late than never" kind of sad story. It's also a lesson in how real journalism can spur public outcry that can still move mega-corporations to action. As we watch the disintegration of the 20th century modes of creating and distributing investigative journalistic work, let's try to figure out how we can hold onto the good stuff, like Levy's story.

Back in April I had a pleasant exchange of views with M. Rémi Vallet of Nutriset, who responded to my original posting pointing out that the ready-to-use therapeutic food marketed as Plumpy'Nut was another situation in which the interests of intellectual property and protection of commercial profits was coming into conflict with clear lifesaving needs.

Now Andrew Rice of the New York Times has a magazine article focusing on the company, its product, and the controversies around it. As I noted back in April there are no simple and easy answers to this tension. In Haiti, Rice finds one company that is making its own version of a peanut-based food, while another has become a franchisee of Nutriset.

Rice also touches on the issue raised by Vallet in his response to Copyfight, which was the vast gap between the billions of dollars that would be needed to manufacture any RUTF and the actual dollars that are delivered to Nutriset and its franchises to do actual manufacturing. There are continuing accusations of anti-competitive behavior, and as with any business it's hard to break in where one company totally dominates the market.

For me the most interesting thread in Rice's story isn't well developed, but it's in there. In effect Rice and the people he interviews are suggesting that the real solution is not an either/or proposition but some combination of three contributors: commercial development, charitable work, and grants by major aid agencies and governments. The big unknown is who or what would coordinate such an effort.

You'd think that wouldn't be a particularly revolutionary thing to try, but you'd be surprised. (OK, if you've been reading me rant about the locked house that iPad is and why I bought a Droid rather than an iPhone, then maybe you're not surprised.) Doctorow talks about his "First Law":

"Any time someone puts a lock on something that belongs to you, and won't give you a key, they're not doing it for your benefit."

As you can guess from the title and my interest, the topic of the book includes ownership of things that have come to be called intellectual property. In particular, Hyde's book is portrayed as a plea to protect our "cultural patrimony" (*cough*sexistmuch?*cough*) from "appropriation by commercial interests."

I'm sorry, guys, but that ship sailed a long time ago. I don't know whether you want to mark the passage of the Mickey Mouse Protection Act, the enactment of the DMCA, or MGM v Grokster as the important milestone - or even something else. The point is still that we've moved from the realm of public sharing of common heritage into a realm where everyone thinks it's natural for big corporate interests to own our genomes, our family histories, and every bloody other thing they can lay their hands upon.

From an academic perspective it's nice that Hyde can go as far back as the Middle Ages, and tie a belief in a thriving public sphere to the American founding fathers. But practically speaking? Who cares. The Cartel are not patriots - the only use they have for nations is as enforcement arms for their control regimes. Appeals to the lofty principles of dead intellectuals is just chaff in the wind.

If we're going to make arguments from history, which I think we should, then it's essential to point out the historical pragmatics - what did it mean for intellectual property to be shared as it was then, and what are we losing by locking it up now?

I suppose it's worth noting that I left academia for roughly these reasons, many years ago. I like good research and the challenge of connecting the dots within the vast streams of knowledge and discovery of the as-yet-unknown. But I also want to see those dots connected to practice, pragmatics, and with a clear relationship to today's reality.

For this project, Vautier took every frame of the film Blade Runner and laid them out on a vast plane. He then made his own short film by moving a virtual camera over this plane of images so you can see certain frames of the film, but mostly get abstract color and movement impressions. The film has a soundtrack taken from Blade Runner's score and dialog but I found that it had much more of the feel of 2001.

The work is labeled a tribute but of course it's also a derivative work and probably a massive copyright violation as it uses the images and sounds of the original. But trust me, nobody's going to mistake this for a rip-off of Blade Runner.

A story in the New York Times from earlier this week examines the challenges of defining and educating around plagiarism for remix-culture youth. Trip Gabriel's story notes that what we might call inadvertent plagiarism is on the rise - students copy material that has no obvious author and don't feel they've done anything wrong.

An interesting point about this is that it's not another "copying is bad" story; it's a hint that we as a society may be moving to a different social model of authorship. The vast majority of plagiarism still is done by people who know it's wrong and who ought to know better, and to have been trained better. But there's also the sense, put forward in this story by ethnographer Susan Blum of Notre Dame, that some people are copying in texts in much the same way as they mash up, or in the way that songs and television shows reference each other. The standards for ownership and credit may be seen differently and students may not feel that what they're quoting is attributable material. After all, who is the author of a Wikipedia article?

Xeni also posted about the interview on boingboing, with links to related blog items.

The discussion is clearly going to continue and I have yet to figure out exactly what I think about it. I personally find it fascinating that the Obama administration is having conniptions where the UK government's response is something along the lines of "meh." There's clearly a form of power involved here that isn't involved in P2P networks that share entertainment content. Government secrets and ownership of information represent a strong form of control, but haven't we argued for years that the Copyright Wars are really control wars? Control over peoples' opinions, actions, opportunities? Maybe Xeni is right and they are of the same ilk.

In yesterday's post about the 5th Circuit decision, I noted that most other courts have not agreed with this interpretation of the DMCA. Well, that may be about to change largely due to the strenuous efforts of the EFF and its allies in pushing the US Copyright Office and the Librarian of Congress.

Yesterday evening I got a press release from the EFF describing three new exemptions to the DMCA. These exemptions apply to the "anticircumvention provisions" of the act, the same ones addressed in the MGE vs GE ruling. The EFF got the Copyright Office to grant its applications for exemptions, and those exemptions cover acts such as:

• "jailbreaking" a cellphone - freeing a phone from being locked into a particular carrier or a specific app supplier (actually one new exemption and a renewal of an existing one).
• remixing short clips from copyrighted DVDs; for example, for use in personal videos such as those people post to YouTube or educational displays in places like classrooms.

I cannot resist reminding readers that the EFF is a volunteer organization supported by donations. On that press release page are links for folk who want to help out the EFF by donating directly or indirectly by buying their swag. I still have my very first EFF shirt, bought in 1990.

On the face of it, contrary interpretations of a law are usually a good reason for the Supreme Court to grant cert, reviewing the case(s) and the law on which the Circuits disagree. For that to happen, the ruling would have to be appealed to the 5th en ban and if upheld at that level could then be appealed to SCOTUS. So there's still a ways to go on that front.

The decision seems to hinge in part on a distinction between access and copying. In particular, GE claims that the dongle it cracked didn't stop copying from happening - it just blocked access. The 5th definitely agreed that GE was enjoined from copying or using illegally copied software and trade secrets; GE did not contest that the software was a copyrighted work, and the fine against it was upheld. But the Circuit panel found that the original decision for MGE was in error because it accepted too broad a meaning of "access". The key sentence highlighted in the Courthouse News report is this:

"The owner's technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing."

It will be interesting to see where this case goes. Given that the monetary damages against GE were upheld, MGE has little motive to appeal in defense of an abstract principle of law.

The SFLC, chaired by Eben Moglen, is an advocacy organization for free/open software. In this case they're arguing that the closed proprietary software of IMD - implanted medical devices - is another instance of IP can kill. They have a raft of scary statistics on product recalls of IMDs and note that although the hardware parts of these devices are regulated and tested by the FDA the brains - the software that controls the device - is not only not tested, it's not testable. It's an opaque black box that exists and is distributed, revised, and updated (or not) at the manufacturer's whim. If the manufacturer goes bankrupt or leaves the medical device field the code goes with it.

This puts patients in a place where they either have to trust these manufacturers literally with their lives, or turn down potentially life-saving treatments. SFLC argue that this is not an acceptable position and that the code as well as the hardware should be subject to review, to recall, and ideally to replacement with open source that could be inspected, debugged, and maintained by those who care the most about it.

Which is, you know, an admirable idea. And also approximately as likely as my suddenly sprouting a prehensile tail. What's far more likely is that there will be a bug, and someone - or many someones will die. There will be lengthy court proceedings - made more difficult because in 2008 the US Supreme Court (in a case known as Riegel v. Medtronic, Inc.) prohibited patients harmed by defects in FDA-approved devices from seeking damages against manufacturers in state court and also eliminated product liability lawsuits against manufacturers of approved devices. However, state suits are not the only possible avenue.

As usually happens with these things if the outcry gets big enough then Congress will feel compelled to act, but neither the courts nor Congress are big fans of open source software. The solution will probably be more FDA oversight or something along those lines. In this sense the SFLC paper does a good job of highlighting a potential danger but a poor job of sketching out how we might address such dangers.

The Copyright Clearance Center sent out a blurb announcing that they've upgraded their Rightslink tool, a set of software and services that is designed to help creators figure out what they want to license, to whom, and on what basis. There are a variety of tools that creators need if they're going to get their content out inside of a for-pay infrastructure. I'm not in the business of promoting one tool over another but I'm happy to list resources and encourage users to share their experiences.

Why? Well, it seems that Mr. Williams is at best uninformed and at worst... um, I think the word is lying about what Creative Commons does. It seems to have started with a tweet from Mike Rugnetta. He got a fund-raising missive from ASCAP and posted a picture of it.

In the letter, ASCAP asks for money to fight organizations like CC, EFF, and Public Knowledge that, it claims, are trying to undermine "our" copyrights. Oh really? This isn't the first time ASCAP has misrepresented what CC does, as Lessig points out in his response on The Huffington Post. Sadly, Lessig isn't calling for pistols at dawn (dueling is illegal in the US, if you get right down to it) and his challenge is entirely too gentle.

But it's there, and you can read it. I doubt Paul Williams will read it, and I doubt he'll respond. It's not that I think Paul Williams is right - it's that he cannot possibly win this debate and he'd be a fool to get into it. He doesn't want to hand CC or EFF or Lessig any more free publicity.

Which is where I, and I hope you dear readers, will help out. Publicity for this kind of thing is really the best response. Respond to lies by stating the truth; respond to confusion with clarity; respond to uncertainty with understanding. And just in case you get the chance? Slap Williams across the cheek with a white glove. Do it for me.

He's at his best when he cuts loose with the snark, as he does in a recent post about ACTA, the still-not-really-secret-but-can't-be-openly-discussed copyright revision treaty. If you're still not familiar with the shenanigans around ACTA, Michael Geist's blog is a great place to start.

What Anderson's piece points out is that ACTA is going through this ridiculous cycle of secret negotiation followed immediately by leaked copies of the drafts. The leaked copies draw fire from all quarters and the negotiators hunker down again behind closed doors for another round, as if somehow their latest deliberations would remain behind those doors. It's not always clear who is leaking the drafts or why, but it is clear that both the parties involved in the negotiations as well as the excluded players are unhappy about it. Libertarian and pro-Copyfight bloggers are also screaming mad about the treaty's provisions and process. Cory has been dogging the story at boingboing for months.

So, what's the point here? What is so important that the US has to blackmail other countries in an effort to keep the process secret? I don't get it. The entire thing is degenerating into a farce, as Anderson highlights. So far that farce hasn't really penetrated the mainstream media but if this keeps up I can't see any way for the treaty to get approved. You would think the US had learned something from the backlash that arose against the healthcare reform legislation's secret back-room deals. Apparently not.

(In the spirit of helping out businesses trying new models I should note that ars is offering "ars premier" with "insider access" to its content, live chats with the editors and industry people it interviews, etc. I'm not yet a subscriber myself but if anyone has experience with this or similar subscriptions I'd be interested in hearing from you.)

Unless you're a Cartell lawyer, I guess.

(Aside: I apologize for misspelling Joel Tenenbaum's name in my Monday post. The error has been fixed.)

In a blog post yesterday, Jason Sanford put forth an interesting idea: maybe the problem some creators have with the 'net isn't really about control of their content . Maybe the issue is control of their image.

It's true that the two are often inextricably linked. Authors, for example, are famously assumed to believe things they have their characters say or advocate. And the recent mess Mel Gibson has made of himself clearly shows how creators' images affect our view of their created works.

Sanford looks briefly at the attempts by author Harlan Ellison and musician Prince to dissociate themselves from the Net. Neither of these men is J. D. Salinger but I'm reminded of Salinger's desire to cut himself off by these men's ongoing attempt to snub the Internet. Ellison is a famously cranky individual (best headline: "Harlan Ellison files lawsuit, In other news, sun rises") so it's not all that surprising he would try to tell an entire technology - not to mention social infrastructure - to F off. I used to think Prince was more hip, though.

No problem, said the Cartel-infested DoJ which opposed a motion to reduce the damages to the statutory minimum. WRONG! said the judge.

As Nate Anderson explains in a piece for ars technica, Judge Gertner has ruled that the massive award is unconstitutional as a violation of the due process clause. In the US, the notion of due process originates with the 14th Amendment to the Constitution which is very simply written but complexly interpreted. In essence, what is at issue here is the fairness of the punishment - sometimes put as the idea that the punishment ought to "fit" or be proportional to the crime. To make the punishment more fit, Gertner slashed the damage award to $67,500.

Anderson's article discusses the similarities and key differences between this situation and the Jammie Thomas case, in which the damages were also reduced but through a different legal strategy. That case is going back around again, and you can bet the RIAA isn't going to sit still for this slap. Tenenbaum maintains he doesn't have even the reduced amount but that's not the point. The RIAA are out for their pound of flesh and will certainly appeal.

Back in May, I noted that Marc Weidenbaum was making the assertion that even if the current record industry structure went away there would still be music, still be musicians and there would be things like this.

Go ahead and watch; I can wait.

What you have there is a real musician, Lenny Kravitz, coming unexpectedly on a group of people performing his music ("Fly Away"). So what does a real musician do? He doesn't ask about if they have the right to play this music - he listens, he claps, he jams with them, sings with them, and generally delights the audience as well as the performers.

If you wanted evidence that Weidenbaum was right, here it is. This is what musicians do; this is how music is made and loved and passed on. Uptight Cartel executives take notice, please.

There was a video (now sadly removed by a copyright violation notice from the BBC) that showed Dizzee Rascal joined by Florence of Florence and the Machine live on stage at the Glastonbury Festival that just concluded. Musicians join each other on stage all the time - nothing new here, just going to cover one of their songs with the other artist guesting in, right?

No, sorry. That's not remix culture. Instead what they did was perform a live version of "You Got The Dirty Love" - a remix. I hope that the fan video of the event stays available. It's terrible quality, but as it's from the audience point of view you can clearly tell a few things. For one thing, the audience goes absolutely bananas once they hear what's going on. For another, a large chunk of the audience are singing along, which means they've heard the remix. Certainly you can find enough copies of it posted on YouTube and elsewhere if you want to check.

That, ladies and gentlemen? That's remix culture, right there live on the big stage in front of tens of thousands of screaming fans. And you know what else? Fuck copyright. The remix is probably a copyright violation. Posting it all over the Web is probably violating more copyrights. The artists performing it are probably violating the remixer's copyrights, if he has any. It doesn't matter, though. The question is irrelevant.

Now, to be fair, this didn't happen by random chance and it's not just any artists who are doing this sort of thing. Dizzee in particular has been out on tour for several months with The Young Punx backing him up. The Punx have not only spun for Dizzee but they've done live mashes within his performances, playing backing instruments doing such songs as Nirvana's famous "Smells Like Teen Spirit" while Dizzee does his raps a capella over the backing band.

In this specific case the track "You Got The Dirty Love" was created by the Punx in cooperation with Dizee and Florence. You can read their blog entry at APC for the details - the track is available on iTunes with the proceeds going to charity.

A post last week on the Android developers blog from Rich Cannings (Android Security Lead) gives a clue how they plan to operate: with more caution, in cooperation with developers, but still clearly in control. Like it or not, the Android is not a wide-open free-for-all space.

You can read the post yourself for details, but the gist is that they found two useless apps that were masquerading as something else. The developers then agreed to remove the apps from the Marketplace and Android exercised what it called a "remote application removal feature" to de-install any remaining copies of the apps from users' phones.

In this case the applications were free, so the people who had them removed were not out any money. I assume that Android would refund money spent for a pay app it removed in this way; regardless, though, the message is still clear: Android owns this environment.

Well now comes today's entry by Michael Geist in his blog, reporting on an apparent attempt to cover up those remarks. Moore denies making them and (as of now) the official version of the video doesn't show him making them. Am I the one hallucinating here?

Well, maybe not. According to Geist, "IT World Canada reporter Brian Jackson compiled his own video of the event" and that video shows the remarks. Here, go watch the video and judge for yourself: http://video.itworldcanada.com/?bcpid=7044989001&bctid=101481423001

You won't have to watch for long. At 0:38 into the video, Minister Moore starts in on "radical extremists." So, Minister, what do you call people who lie and suppress the truth about their own past remarks? (If you're American, you call them "our former president" but that's beside the point.)

Coming in hard on the heels of Michael Geist's post, Cory Doctorow has a long and direct challenge to Minister Moore.

Cory reminds us that he is a well-published Canadian author, one of those whose life and livelihood ought to be improved by these copyright reforms. Instead, going point by point, Doctorow dissects Moore's pro-industry position and shows how the only ones who are going to get richer from these so-called reforms are the corporate purveyors of certain technologies. Authors will get poorer and and readers will get less useful experiences.

Now, who exactly is Moore working for? If it's not authors, and it's not readers the Minister has some explaining to do and, as Cory points out, he owes more than a few people an apology.

It's really not clear what his problem is, except that he seems to think that these "radical extremists" oppose any change in copyright law. Well, um, maybe that's because the changes are bad? You know, just maybe. And really, Minister Moore, we're not talking about people leaving bombs in SUVs in Times Square here. We're talking about academics (like Geist) who have spent a lot of time and effort researching the issues. They may be wrong. You can certainly disagree on the issues and their merits - after all, that's what academic debate is supposed to be about.

But it seems pretty seriously out of bounds for a government minister to be giving speeches painting academics and scholars with the broad brush of "radical extremism". In addition, as Geist points out in his blog entry, the Minister's position is that one should oppose and attack these "extremists" which also seems contrary to how a government ought to act in regard to citizens with differing opinions. We've had too much of the Cartel making war on ordinary people in the past decade; there's absolutely no call for governments to act like that.

(Having just watched the US beat Algeria in the World Cup I was tempted to title this post "James Moore Gets a Red Card" but really the refereeing in that game was so bad I didn't want to be associated with it.)

For those new to this story, Groklaw - and Pamela Jones - have been dogging SCO for years, laying out in fairly painstaking terms all the weaknesses in the case and arguing that judgment should go the way it has now gone - in favor of Novell. PJ, as she's commonly called, has some paralegal training and has called bullshit on more than a few statements, filings, and other fully legally certified at the bar issuances in this case. So if she's feeling a wee bit justified this month, I can't say I blame her.

I, personally, would like to see SCO die in a fire for all the expense, FUD and general heartache they brought to the free and open source community, but there's probably not enough left of the company to burn.

About 10 days ago I noted that Michael Geist was predicting that India would come out against ACTA. And hoo boy have they ever.

Yesterday's blog entry from Geist notes some sharp language from India against the ACTA treaty and the very secretive process that produced it. A process that, not coincidentally, has excluded India and other developing countries.

India's statement (called an "intervention" at the WTO) shows that it has broad-reaching concerns, not least of which is that even though it was excluded from the treaty, it (and other non-party nations) could be expected to enforce ACTA provisions. This would imperil legitimate Indian businesses and the rights of people in that country. India's opposition is no small thing - it is a major growing economy with political and economic influence of its own. In addition, Geist hypothesizes that India is not just speaking for itself here, but also front-running for a coalition of countries that have been excluded from the ACTA process and are feeling threatened by it.

As I've noted before, this is the generational change we've come to. The kids in Glee's high school reproduce, co-opt, adapt, remix, and produce derivative works. In their fantasy world they get to upload stuff to YouTube and become viral heroes. If they put this stuff out on P2P networks in the real world they'd get sued for hundreds of thousands of dollars in statutory damages. But since it's on a network show the whole issue is glossed over.

And you know what? It should be. The urge to share may or may not underlie what has happened but it's inarguable that the generational change has happened.

I don't particularly like Glee-the-show (musicals give me hives, what can I say) but to the extent that they're accurately representing the way today's high schoolers view remix and appropriation my hat is off to them.

The New York Times reports on the latest rounds in the battles between ticket vendors and resellers (or scalpers depending on your point of view). The challenge is that a "ticket" is often no longer a physical object whose transfer can easily be monitored. Getting into a venue can be a matter of what's on your smartphone, what's in your email, etc.

Most of the article is about the effort to fight botters and scalpers but the key Copyfight issue here turns around whether or not you have the legal right to resell your ticket. In the era of physical tickets you could usually sell a ticket for what you paid for it even in the states that had anti-scalping laws. However, taking a cue from airlines who have effectively prevented the resale of plane tickets, venue ticket sellers now require identity papers with admission via paperless ticket, which pretty effectively prevents even legal transfers of the ticket.

This is a pretty standard story in the Copyright Wars - attempts to prevent illegal activity lead to restrictions on legal activity and the consumers end up screwed.

I have what I consider to be a very loose policy on what I'll accept for comments. Opinions are not censored and I certainly have no problem with people telling me I'm wrong. If you want to advertise your event or publication, please send me a mail and I'll look at it.

That said, if you are going to leave a comment it should be related to the subject matter of the post, or the issues raised by the post or of concern to the blog and its readers. I interpret intellectual property pretty liberally, and I'm often concerned with the related areas such as business policy and social implications.

Please don't use the comments area to promote your product, service, book, blog, all-singing, all-dancing whatever. Thank you.

Geist's blog entry from this morning links ACTA with a topic that has been of recurring interest to me here, the ability of countries to produce generic versions of life-saving, but patented, medicines.

According to Geist, India is seeking allies to help it block at least the portions of ACTA that could allow seizures of shipments in transit. This would impact India, a major producer of generic medicines, as it tries to ship those medicines to third-world countries. The recipient countries, in many cases, depend on these generics to keep their people alive.

From all I've read about ACTA it's a bad deal for pretty much everyone except the big intellectual property monopolies and should probably be scrapped. Any time a treaty negotiation has to depend on secrecy and subterfuge you can pretty much bet it's a bad deal for the average person. However, scrapping ACTA still won't address the underlying problems. Copyright, patent, and other IP regimes around the world remain inconsistent, massively outdated, and increasingly lopsidedly tilted against the people who actually make and use the items that are supposed to be protected.

Last August I wrote about Typekit, which was supposed to help us untangle some of the mess around licensing and use of fonts on the Web. Then a friendly reader pointed me to a story about Typekit on Readable Web.

In the blog entry from March, Richard Fink points out some clear evidence that Typekit either isn't working as designed or is putting up misleading copyright information. Fink uses the word "fraud" but in the comment back and forth with Typekit's Jeffrey Veen, Fink admits that he may be guilty of unnecessary hyperbole. Veen's defense, that he (and Typekit) don't know how to write licenses and so may be guilty of bad wording at worst, may be true but seems like sloppy work. Is there no one at Creative Commons or other organization that could help out here?

One other tech link I saw in Fink's post is worth surfacing here: The League of Moveable Type, an organization dedicated to the production and distribution of free and open fonts for use on the Web and elsewhere.

Byrne's blog post notes that he has always maintained a no-ad use (though I seem to recall him appearing in some non-US ads possibly without Talking Heads music) and makes the point that the use of a person's music may imply some kind of endorsement. Ironically, Byrne notes that when McCain got sued by Jackson Browne part of the settlement (McCain lost) was an agreement by the RNC to obtain licenses in the future. I guess Crist forgot about that part of upholding law and order.

According to a piece in Billboard magazine on the suit, Byrne has retained the same attorney who represented Browne and who presumably was part of those settlement negotiations. Byrne is asking for USD 1 million in damages, a symbolic amount to be sure, but (again, according to Billboard) it's representative of the amounts Byrne has been offered in the past for use of his material.

If the Cartel had any soul at all it would be filing amicus briefs on Byrne's behalf. But I'm not holding my breath.

Boingboing pointed me to this really excellent example of how the new generation feels about the remix culture it is bringing to live. The example comes in the form of a three-part video posted to YouTube (under a Creative Commons license of course).

This video, called "Walking On Eggshells: Borrowing Culture in the Remix Age" is a documentary produced as a final project for a Yale course titled "Intellectual Property in the Digital Age". In the documentary, the three student filmmakers interview a variety of creative types (artists, writers, and lawyers) and muse on the society and technology of the remix. In a way it's a paean to the art form, and it's also a plea to the forces of the Cartel please to leave this form be, to let it nurture and grow.

Everyone in the film seems quite aware that remixing is appropriation and appropriation is at best questioned and at worst punished. And yet, it's what they do. It's what's expected. It is, as I've said before, the culture of the next generation. It's the background assumption. The only question to be answered is how long will people like this have to walk on eggshells before the law and business learn to adapt to this mode of doing and treat it with cooperation rather than trying to exterminate it. The "mystique of authorship" is not just unnecessary, it's counterproductive.

Back in January, Seth Fischer dropped by to point out that if you want to escape the slush pile, small press is where it's at. Self-publishing has always had the taint of untalented egotism on it - they don't call it 'vanity press' for nothing.

But as Virginia Heffernan explains in a New York Times Magazine piece from last month, the size and quantity of self-published material is now more than double that produced by traditional (big) publishing houses. And the trend strongly favors the self-publishers, with a 180%+ rise in volume produced year-over-year while the big guys are down another fraction. Vanity it may be, but it's gotten cheap enough, easy enough, and dare we hope popular enough that it can be done by anyone with something to say.

Heffernan points to CreateSpace (still one of the most popular Copyright posts for the past few years) and a couple other outfits/imprints that are trying to help people preserve, create, and disseminate their own work. I confess I was surprised to see the degree to which the industry has grown in just the past two years.

The question now is whether the self-publishing industry will be a victim of its own success. One of the things that publication from a major house gets you is at least some level of review and editing, which people take as at least a first-order measure of quality. What will become the markers for quality in self-publishing? Every social media site has some kind of populist like/rate system but how useful is that?

However, in the May issue of The Atlantic, editor Megan McArdle took to task the current generation of "freeloaders", complaining that "...a generation of file-sharers is ruining the future of entertainment." Are we, now? Responding to the news that last year was yet another dismal year for the recording portion of the Cartel, McArdle recites figures that lament the aging of the music acts that pull in big bucks. She's apparently completely unaware of the club scene, the DJ scene, the remix scene or - frankly - anything that someone under 30 would consider modern, new, interesting music.

It's true that if your concert tickets are $200 each then you're not going to get a lot of young people at your shows. But really is that something wrong with the audience, or with your ticket price? It seems that McArdle is confusing a couple of different concepts here.

Weidenbaum points out another fundamental contradiction in the piece - the conflation of "the music industry" with "musicians." And to point out that contradiction he wrote a response and commissioned something very much like a musical (ambient) score to go along with that response. He asked ambient musicians to riff on the illustration that accompanied the Atlantic piece (which itself might have been technically a copyright violation) and then he goes to town on McArdle.

The result is a mixed media piece called "Despite the Downturn: An Answer Album" that you can read and listen to (for free) on archive.org. Ambient music is a take-it-or-leave-it proposition for me, but I really enjoyed playing the album while reading Weidenbaum's thoughtful response. I encourage you to do the same.

No, really. I can't make this stuff up. Back in June of last year Sweden elected an MEP (Member of the European Parliament) from the Pirate Party. The party's platform included a focus on protecting copyrights from over-regulation and abuse.

The MEP, Christian Engström, now has published on his blog site comments from the Danish anti-piracy group lawyer Johan Schlüter at a Stockholm meeting a couple years ago. According to this blog post, Schlüter thinks ”Child pornography is great" because authorities can be talked into blocking Web sites that host child porn, and therefore will be more amenable to blocking file-sharing sites. Never mind that the one thing has nothing to do with the other. This is what the Cartel thinks is clever strategy.

I'm reminded of Bruce Sterling's 2002 remark about the "Four Horsemen of the Infocalypse." Child pornography is a universally reviled evil; no one can be in favor of it. Therefore, you just need to link the thing you think is bad (file sharing) somehow to child porn and presto you taint that thing with the same scourge. Assuming, of course, that your audience is gullible. Or morons. Or both, which is apparently what the Cartel thinks of its audience.

Now she's written a blog post about why you can't get Sita via Netflix. It comes down to DRM. She wants her movie distributed DRM-free and Netflix won't make an exception, even for her free movie. Netflix also won't make a policy exception to let her insert a message before the movie pointing to where people can get it for free. So it won't appear on Netflix and Paley will pass up the revenue she'd get from the distribution deal. Just another brick in the wall.

(Oh, and she takes a swipe at the "everything-DRM" iPad so you might want not to read that, iPad lovers. Actually, I'm sure I've ticked them all off and they're not reading this blog anymore, but you know just in case I figured I'd give fair warning.)

In addition, Joseph Stiglitz (Nobel Prize-winner in economics) and John Sulston (science ethicist) have a stongly worded editorial piece in the April 16th Wall St Journal opposing gene patents. Both of them were supporters in the recent case in which the patents on BRCA1 and BRCA2 genes were invalidated. A key component of their argument is that the patent here does not serve basic economic interests; rather, the monopoly power of the patent actually hinders both competitive development and the additional research that is necessary to understand more fully the roles that these genes play.

In effect, the argument goes, the patents form a roadblock that impedes both useful commerce and necessary research. This argument runs in parallel to their more fundamental argument that genes - as naturally occurring sequences - are not patentable inventions. Given the disastrous state of current law and practice on what is and is not patentable, I think it's wise to make both arguments since any attempt to apply what would seem to be common-sense logic to our current patenting practices seems guaranteed to produce only stress and gray hair.

As to my own point of view, I think Stiglitz's economic arguments are important and moderately persuasive. I have not read the extensive evidence submitted in the case but I'm willing to believe that the plaintiffs made a convincing economic case, which undercuts the "patents are a necessary incentive" argument I've believed in the past.

Boingboing pointed to this video called "When Copyright Goes Bad", a 14-minute discussion of what's gone wrong in the copyright wars at this point. Fred Von Lohmann features heavily, as do a few other Copyfight heros like Michael Geist, who points out that probably the entirety of remix culture is based on a natural human tendency to want to share. If you assume that people are, on average, good and generous then it should not be surprising that they want to share what they have, that they want to show off what they've made, and to mix it up with their friends.

Special speaking point props to Hank Shocklee, listed as one of the "founders" of Public Enemy but also well known as a hip-hop producer in his own right as part of the Bomb Squad. Shocklee hammers on the point that I wish more people would engage with - the evolution of a workable copyright system will be impossible without the informed engagement of the consumer. The Cartel's model is so wrong because it treats the consumer so badly - as a criminal, as someone to be scared into obedience, as a spigot from which every possible penny must be wrung regardless of how bad an experience comes from the interaction.

This is an example of what I meant when I said I disagreed with Cory on whether or not a negotiated peace is possible with the Cartel. The radical difference in views on how people ought to be treated makes it impossible, in my view, to find negotiable ground. (In Cory's defense I should say that he has extensive experience negotiating with publishers for things like the rights to make available DRM-free electronic versions of his books and I do grant that the Cartel are not wholly monolithic.)

Unlike Fred Von Lohmann's optimistic take on things, over at The Guardian (UK) Cory Doctorow's latest column rails about the fact that we're at war. Which is, yanno, more or less what I've been saying for the last 5+ years in this blog. Cory's pissed that the Cartel just won a big battle in the Copyright Wars over in the UK. But it's still just one more battle in this protracted struggle.

Unlike, apparently, most Copyfighters, I've never thought a negotiated peace was possible. The Cartel just thinks too differently, and has wholly incompatible motives, for a negotiated solution. There are only three possible outcomes - subjugation that will kill off the subjugated technology (RIP DAT), the death of the Cartel dinosaurs (RIP pretty much every retail music outlet, half the major labels, most newspapers and on and on), and the outcome that gives me the most hope, which is the growth of a new generation that views this fight as uninteresting and irrelevant. That generation will rip, mix, and share because it's what they've always done.

The laws and regulations, the FUD, the technological shenanigans can make it harder but you cannot sue, scare, or legislate culture out of existence. Not if you're the Chinese government and not if you're the Cartel. Change the kids and you own the future.

Rémi Vallet, who gives his URL as Nutriset's site in France, responded at length to my call for engaging the moral dimension of intellectual property issues. He doesn't list himself as a spokesperson for the company nor give any title he might hold with them, so I can't actually say it's an official response, but he does raise points that I felt were worthy of bring up to the front page rather than being behind a comment link. (ETA: In a private email Vallet identifies himself as Responsable de la communication / Communications Manager for Nutriset so I think we can take his response as representing the company)

First, he corrects my misapprehension that Nutriset is not licensing its product. There is a (PDF) link to a description of a network of manufacturers and licensees, though I am somewhat confused as to what it means for the company to license its product in a country where it does not hold a patent. Still, that's a minor issue.

The heart of the question seems to be what qualifies as 'demand' or possibly what we might refer to as 'need.' From Vallet's point of view, the "demand is by far insufficient to meet the needs of the 20 to 26 millions children suffering from severe acute malnutrition." Here "demand" is synonymous with "people asking to buy our product" whereas someone else might say that these children's hunger constitutes a demand. Currently, according to Vallet, production of all RUTFs is about 60k metric tons, which doesn't come close to feeding those 20+ million children. The cost of taking up the full-scale project is certainly in the billions; Vallet quotes a World Bank estimate of USD 12.5 billion annually.

That scale of expenditure is clearly beyond the means of any but the largest corporations or charitable agencies. One might then conclude that Nutriset's patent is not a major obstacle in solving this problem - which would be true but almost wholly beside the point, insofar as one wants to engage with the question of whether patents on these sorts of products are in the general good or not. Nutriset's patent is just one example of a license that has moral implication.

The core notion of a patent is a grant of monopoly rights in exchange for some form of betterment, usually of the society or country that grants the patent monopoly. From a pragmatic point of view, as I've written before, we also need to consider the cost/risk/profit equation of the patent holders. Even though the US Constitution and other patent laws do not frame their grants in terms of profit, if we expect the market system to produce these life-saving products then we have to ask hard questions, such as "Is Nutriset's patent impeding production and distribution of life-saving foods?" and "If so, what is the proper remedy?" or "If not, to what extent are we comfortable allowing private commercial entities to claim exclusive rights?"

Vallet links to another PDF, a UN policy brief on "Scaling Up Nutrition" that, while laying out the problems and costs in fairly stark terms does not even mention the words "patent" or "intellectual property." I'm sure it's good that Nutriset endorses this framework, but that's necessarily going to help work through the tough questions around IP and life-saving.

Which, in a very small way, puts me in excellent company. In particular, the cartoonist/satirist Mark Fiore has just won a Pulitzer Prize - the first online-only cartoonist ever to do this - but he's too heretical, or offensive, for Apple. The applet he tried to get into the iStore that would let people read and watch his cartoons on the iPhone (and presumably iPad) the way they'd do it them on the Web was rejected for "ridicul[ing] public figures." Well, duh. That's sort of the point of political cartoons, right?

Maybe I was wrong to say that what Apple wants to do is what the Cartel has wanted for a while. Maybe Apple is just fulfilling Boss Tweed's desire to shut those damned cartoonists up.

See more of Mark's work at his site: http://www.markfiore.com/

But for now you can just spend 40 minutes watching the recording of his keynote from the PublicACTA conference in Wellington, New Zealand. The slides are dull and the topic is complex but Geist has been dogging this issue for years and he knows the history and the problems with this trying-to-be-secret IP agreement in the making.

(h/t to boingboing where I first saw this linked and which has done a very good job of tracking this complicated and secretive monster for months.)

This time it's not just medicine. At the end of last year, a couple of US non-profits filed a challenge to US patent No. 6,346,284 which describes a food product currently marketed as "Plumpy'nut." Despite the cute name, the product has a serious use - it is what is called an RUTF, a ready-to-use therapeutic food. Because Plumpy'nut requires no water to reconstitute and has a safe shelf life over over two years even in harsh conditions, the food is considered ideal for relief of severe malnutrition in areas without some basic infrastructure such as clean water or easy access to refrigeration. According to WHO, malnutrition is the cause of half of all child deaths worldwide, so this is serious business.

The IP issue - as in the case of medicines - revolves around the patent. The company holding this patent does not license it, so it is not possible to produce the food equivalent of generics. There's also some question about whether the patent itself is over-broad, which is a convenient hook on which to hang a suit but misses the issue I think is important.

A BBC story from last week indicates that the patent holders, a French company called Nutriset, are well aware of the moral dimensions involved. They argue that "No child in the world has even been denied access to the product as a result of the patent issue" which may or may not be true, but at least it goes straight to the heart of the concern. It is acknowledged by both sides that there is more demand for RUTFs than Nutriset is currently meeting, but simply making more bars isn't always the only factor in a solution.

For example, a TimesOnline story from last August describes how India blocked the use of Plumpy'nut, in part due to concerns over safety and in part due to concerns over whether an imported foreign product should be used to solve a problem that Indian authorities seem to believe should be solvable with local products. Again, this is (in my opinion) much more on the point than debates about which countries do or do not recognize the US patent.

Nutriset is making similar arguments, saying that they'd be happy to ramp up production but funding and systems of distribution are lacking. I'd love to see those arguments engaged directly - what compensation (funding) should Nutriset get for its product? Who should pay? Would a compulsory local manufacture-under-license program both provide adequate profit to the company and also address national governments' concerns about local solutions?

Intellectual property doesn't always have moral dimensions, but when it does they can be life-or-death and there needs to be a much more serious engagement with those dimensions in order to shape a coherent global IP regime.

In response to my posting a couple weeks back on more IP that kills, a reader suggested I cover the recent decision invalidating a patent on two genes linked to breast cancer.

I was undecided then and I remain undecided. The situation gets unpleasantly complex. First off, there's a question as to whether one ought to allow patenting of so-called natural sequences (genes, typically) or other things that come about without deliberate action or intervention. I'm not a patent lawyer, but even here I'm of two minds. I'd like to think that for-profit enterprises ought not to be rewarded simply for being first to file a sequence isolated from a creature or compound that has existed for hundreds of years - what's the invention here anyway?

But there are situations where the sequence is unknown and most essentially the relationship of the sequence to causation and effect in the macroscopic world is unknown. The science of discovering that is largely driven by profit motives - you find things like mutations or genetic markers in order to develop diagnostic tests or curative agents. Unless we give sufficient protection to the people and companies engaged in this research they may not be motivated to invest the millions the research requires. So what's the alternative to permitting patents on (gene) sequences?

Second, is there a threshold case here? Breast cancer is unpleasant at best and if untreated can lead to other cancers, major side effects, and even death. That said, a predictive genetic test for it is definitely a First World concern. The predictive test may be better than other methods, but does it pass the threshold that I feel anti-retroviral medicines for AIDS pass? I'm not sure.

Third, the ethical consequences of patents on genes are poorly understood (at best). We really don't know what it's going to mean for society to give monopoly powers over creatures and bits of our own bodies to commercial entities. The fact that this case has arisen over a situation as personal and deeply affecting as breast cancer is probably not a coincidence.

Finally, is the practice of gene isolation an important and necessary part of the process? Is that sufficient to create a patentable product or is it, as the NY Times story notes, merely a "lawyer's trick." The root problem here is that the patent system is increasingly divorced from our growing understanding of science (h/t to Greg Aharonian of PATNEWS who has been hammering on this issue for years). If patent examiners could be properly trained in the science of the area in which they're issuing patents, and if the patent law supported clear statements of the scientific principles underlying patents, then we'd be in a better position to judge this - or at least a competent scientist would be.

As with most of these big thoughts I have far more questions than answers. I do expect this case to be appealed and probably overturned on appeal, but that won't make the fundamental issues go away.

Produce a totally locked platform, with no legal way to download or produce your own content, modify it, claim ownership of anything on it, be totally dependent on the Father for every droplet of updating? Cartel's wet dream, and Steve Jobs has made it real. Cory's preaching to the choir, but he sings it so well.

Did I mention I bought a Droid for political reasons? Yeah, not getting an iPad either, even if they are trivial to jailbreak.

Periodically I've enjoyed pointing out that the Cartel, in attempting to sell a product (digital music) that is now available for free, faces much the same dilemma as the soda companies faced when they created the demand for bottled water. After all, most of us get essentially all the high-quality water we want for next to nothing, so why are we so hooked on paying thousands of times as much for the stuff in bottles?

Well, the answer isn't particularly pretty for the bottled water people, either, as you can see at "The Story of Bottled Water." So for all you Cartel types out there... sorry, I'll try to come up with a better analogy for how you might compete with a high-priced product against one that's not quite as good, but cheaper. I hear FedEx is still turning a profit these days, where the USPS isn't...

On the one hand, it's very clear to me that profit potential and protection for discoveries is a crucial part of the reward system that encourages businesses to take the (often large) financial risks necessary to find, test, and develop new medicines. On the other, there's a serious moral case to be made that the pursuit of profit should not always or automatically trump the needs of people whose lives are at risk.

Today brings another reminder (almost a year to the day after my last post on this topic) that the dilemma is far from resolved. MSF published a response in the New York Times to an op ed piece. In their response, they argue that the potentially increased intellectual property protection in proposed health care legislation would slow or block the development of generic versions of key drugs. Again.

It's sad that this many years on we still don't have a good national (or even international) regime for helping both sides. Companies need good markets and a way to recoup their costs. People need existing life-saving medicines, and new innovations brought to production as quickly as safety allows. These don't seem like incompatible goals, to me.

(Full disclosure: I'm a financial donor to MSF and friends of mine have done volunteer work for them.)

Today they've announced a remix competition, in which the readership is given a set of song "seeds" and encouraged to make their own mixes from these seeds. You then have until April 28 to upload your entry to Soundcloud for judging, and the winner gets a spot on a special EP featuring remixes by some moderately well-known names in the industry. Since this EP is likely to get dropped in dance clubs all across the continent it's a nice way to give someone who may be unknown a leg up into the scene.

The notion of a sustainable business model built around "give away something and entice people to buy more" isn't new. It's something of a variant on the "give away razors in order to sell blades" idea that the shaving people, and the game console people, and the desktop printer people, etc have all used. However, unlike those models where the bit you get for free is essentially useless without the additional stuff you buy, this model is one of giving away something that is useful in and of itself, and then building on that with added content.

I'm reminded of my recent experience with the Steam gaming system. Steam's desktop client is free and it lets you easily hook in non-Steam games. But it also serves as an ad platform for Steam-supplied games, some of which are offered at very low or even free prices. I got one such game and enjoyed playing it enough to put down $10 twice on DLC (downloadable content) modules for it. In addition, I've now used the Steam search/ad engine to find another cheap ($10) game that I'm planning to try out and if I like it I'll probably throw more money at it.

My informal browsing shows that game companies are doing more and more with free demo versions of games. You give people the experience, get them interested, have them invest some time in making some progress and then see if they're willing to pay money to go further. It's an interesting model and one that might be profitably adopted in other industries.

About a month ago, boingboing posted, and I noted, a video that described an evolution in remix culture. In today's boingboing post, Jimmy Guterman links to a talk by Lawrence Lessig at TEDxNYED in which he uses this same video to make a point about how (some) conservatives "get it" with respect to sharing culture and some other people do not. Most particularly he's making a point about how supposedly liberal Democratic institutions do NOT get it. Like, say, the Obama Justice Department and its gang of Cartel cronies.

Last month I noted that Blizzard were creating the World of Warcraft magazine purely for people who had already subscribed. In effect the publication was done for people who had already said (by virtue of plunking down money) that they wanted to read it.

This idea has been kicking around the net for at least a couple years. I found three sites/companies that are trying to organize this sort of effort, or at least provide a little framework scaffolding for new unsigned artists, and I'm certain there are many more out there: SellABand, Slice The Pie, and ArtistShare. Each of these three has a slightly different model and each provides different services. Of course, these services want some bit of the funding in order to pay for what they provide. Several of them also offer ways for people to invest in the artist, and potentially make revenue on future sales or advertising around the product they've invested in.

None of them have the kind of clout, either in marketing power or established fan base, that Blizzard has. That struggle to be noticed may well be fatal to an effort like this, which depends on getting the word to the people who care and have cash. Maybe that situation suggests that a big name can buy/build/partner their way into this space and by doing so bring in the number of viewers who would be necessary to get more of these artists produced and turn music on demand into a profitable business line.

MTV, are you listening?

I'd been wanting to write about Apple suing HTC, about which there is a nice write-up at Gizmodo. My interest in this is somewhat personal as I'm about to become a 'droid owner. Also, Greg Aharonian managed to get himself quoted in the New York Times claiming that at least some of Apple's patents will be found to be invalid. So I think just about all has been said right now that needs to be said on that topic.

Instead, I want to direct your attention north of the border (and hope that at least someone in Ontario reads this and will respond). The Globe and Mail has a nice write-up on the new Tino Sehgal exhibit at the Art Gallery of Ontario. The exhibit (if it can properly be called that) is titled "Kiss" and consists of seven male-female couples who, over the course of two hours, recreate famous kisses from well-known pieces of Western art.

What makes this Copyfight-interesting is the language and restrictions around it. First, part of the agreements around the exhibition include no photography or other recording. Either you're there to see it, or you're not. Fine, and much like many other performance pieces.

But the way The Globe And Mail describes the transfer of the intellectual property around this fascinates me. The AGO "bought" (whatever that means, probably paid money for) "an edition of" (which I take to mean secured the rights to perform/display) Kiss. Apparently other big-name museums have "bought" this piece, which again strikes me as very odd language. If you're buying a copy, then you get some rights in that copy by virtue of the purchase, no? And if your rights terminate after some time (or some number of performances) then aren't you renting rather than buying?

And if it's an edition of, does that mean it can run concurrently with other editions? (Edition is also a weird word - makes it sound like a reprinting of a book.) Or does it just mean that you get some rights to change it, such as selecting which actors will be in it? Or maybe you get more substantive rights, such as the right to change what kisses are enacted, or how long the enactments take place?

The whole thing strikes me as odd - if they'd used the language typically seen around other ephemeral art, such as musical performances or theatrical offerings, I might find it less weird. But, really, what does it mean to treat something like this as a piece of art that is on exhibition at a museum?

I got a very nice comment from Vincent Chandler of Slush Pile Reader, on the topic of the death of the slush pile and wanted to point those of you who are interested in self-publication to his site.

Slush Pile Reader is a (still in beta) publisher that provides editing, publication, distribution, and promotion services for submitted books - a slush pile, in effect. The twist here is that those books SPR will publish will not be selected by an editorial staff, but rather will be those that the site's readership have voted as books they'd like to see published.

Authors who want to see their books published through SPR have to be willing to have those books out on the net for anyone to read. SPR allows completely free anonymous reading. In order to vote, though, you must register with the site (also free) and registering also lets you see material that the submitting authors want to mark as 'adult' or otherwise age-restrict. Authors also will retain their rights in non-published manuscripts. As with a print-based publisher, the manuscript will be in the publisher's hands for a certain period and if not selected for publication will then be 'returned' to the author who is free to submit it elsewhere.

Unlike some other publishers, SPR does not plan to charge authors anything up front for books it chooses to publish. Again following the model of traditional print houses, SPR's chosen manuscripts will get the author a contract that will cover terms such as royalties and other payments that may be due to the author.

Overall, this is such a small deviation from the traditional small-press publishing model that I'm at a loss to see how it can be any more profitable than those small presses. By relying on a voting system, SPR is hedging its own bets on which titles it chooses to publish but those are still very similar bets to those made by publishing houses who rely on the insights and discerning tastes of their editorial staff.

SPR is a neat idea and I'd love to see them succeed but I don't see them as the saviors of the slushpile.

Steven Landsburg's blog "The Big Questions" tells the interesting story of the aborted attempt to crowdsource the work of Alexandre Grothendieck. The work in question is a series of very dense volumes of fundamental, game-changing publications in mathematics.

Grothendieck's work was originally published in 20 now out-of-print volumes from Springer-Verlag. Unfortunately, the demand for these works in the specialist mathematical community far exceeds the size of the supply of original printed volumes that remain. No problem, this is the Net age, and indeed a Dutch mathematics professor, Bas Edixhoven, had organized a crowdsourced effort to retype the works with proper mathematical symbols, typo corrections and so on.

All of which came to a screeching halt on receipt of a letter from Grothendieck himself that, while not threatening legal action, insisted that all such efforts cease. Grothendieck appears to hold the copyrights but his objections are not commercial. According to Landsburg (who admits he is also guessing) it has to do with the old man's unhappiness with how his works have been used since their publication.

I'm reminded of the story from January of last year, in which a copyright holder chose to withdraw works from circulation despite the likely benefits that would have resulted from their use. It's a reminder that not everyone sees things the same way, and not everyone cares about getting the widest possible distribution for what they've done.

ETA: the comments on the blog post contain several links with more information and a rough translation of the letter, if you're interested in more details.

(Full disclosure: Landsburg and I are casual friends and occasional verbal sparring partners. Neither of us makes any money from our blogs, though of course he makes money if you buy his book of the same name.)

I haven't posted anything in the long slog over the Google Books deal since last November. People do still send me pointers, which I appreciate, but I just haven't found any of them interesting enough. This story on CNET (by Elinor Mills) caught my eye, given that this is the new Cartel-owned DOJ we're talking about here.

They appear to be standing behind the Bush-era filings from last September opposing key parts of the settlement between Google and the Authors Guild/Association of America Publishers, and in opposition to the modified agreement filed last November (see in-depth analysis at those links above). The next step seems to be all sides waiting for the judge in the case to read the DOJ's filings along with the other supporting and opposed commentary and amicus briefs - after which presumably the settlement will be approved or sent back for further negotiation. My money is on the latter - we're far from done with this one.

Boingboing pointed to a very interesting YouTube video on "The Evolution of Remix Culture". The video is, in lovely recursive fashion, also something of a mash-up of previous videos. In a short eight minutes, the author identifies a generational change in how remixes are being used.

First generation remixes involved the appropriation of pop culture material for the creation of new work, as has been done since oral storytellers sat around a fire listening to each others' tales and improving on them. Second generation remixes, the argument goes, are "social" remixes, in that the purpose of the remix isn't just to create a new work but to provide a response in a conversation or other interchange. Social media sites such as YouTube facilitate this by providing things like video response links as well as by popularizing user-created content across thousands (or more) of likely respondents.

This is nice, but not particularly revolutionary. What gets added here is that the creation of the remix itself performs social functions. People choose which video they want to remake for themselves - check out the vast number of groups of people redoing Michael Jackson's "Thriller" video, for example. And in the way they stage their own productions they're also making statements about themselves and often their own locales and local social networks. It's not a hugely revelatory thing for someone (or a group of someones) to say "Yes, we're like them" for some particular them depicted in pop media. What's new is that this statement becomes embedded in a conversation and also itself becomes fodder for further remixing by others down the conversational line.

In about the last 1:30 of the piece, the author (called "Normative" according to boingboing) touches on some of the copyright problems that influence this kind of thing. And, shockingly, he identifies control as the central issue. No, really, I did not pay him to say that. The Copyright Wars that have waged for the past 12 years or so really are about control, over expression, over technology, and ultimately over the shape of the culture in which we live.

I continue to be bored and frustrated by the grinding, trench warfare-like nature of the conflict these days. But videos like this give me hope that precisely because the war has ground on so long we may see it end. We've raised up a generation that sees its self-expression as intimately tied to the appropriation and reuse of... well, everything. Remix culture has become normative culture and trying to suppress that is just patently doomed to fail.

If you don't like modern music you're probably going to hate a good chunk of what I blog about this year. I may create a new category tag so people can find or skip these as they wish. However, I think that modern dance music, particularly the mash-up, is one of the most Copyfight-challenging and lively art forms out there. And since it has hit the mainstream media, finally, I expect to see more public culture clashes over it this year.

For the past few years he has created a year-end "top of the pops" mix using the Billboard Magazine list of top 25 songs. This past year's "United State of Pop 2009 (Blame It On The Pop)" has gone seriously viral on YouTube, with over 10 million hits last time I checked. That kind of popular spread gets you noticed, and got DJ Earworm a story on CNN, who seem to think that mash-ups are fair use. I highly doubt EMI or any other record label would agree.

That all aside, and even if you don't like pop music or mash-ups, I highly recommend viewing the color-coded lyrics sheet that Earworm has posted on his site to accompany the mix. In this post he shows exactly which songs he snipped lyrics from, down to the level of the individual word. I particularly love his use of five different sources for "...you're tumbling down down down (down down)".

The notion that DJ/remixers are just blindly copying or reusing without innovation is just flat-out wrong. Apprentices may copy without much added skill, much as apprentice painters sit and copy masterwork paintings for hours on end to learn their craft. But as they learn they also learn to add their own creative elements and styles, producing new works that are based on the source material in the way so many art forms of past decades have done.

And what the heck, go ahead and push the play button. It's an AWESOME mix.

The state of magazine publication is the suck these days. You can read it anywhere - the magazines themselves are smaller, printed on cheaper paper, and so full to bursting with ads that you get barely any content. This is in large part because the single-issue and subscription prices do not cover the costs of print publication and newsstand distribution. So many unsold magazines end up as pulp it's a shame and an environmental mess.

And the cover price reflects it. At USD 10 for a 148-page zine it's more expensive than most trade paperback books and certainly more than any magazine I could find scanning the extensive shelves in Harvard Square (not counting some very pricey tech journals). Because the magazine only sells to subscribers, the publishers are pretty much guaranteed that every copy they print will be sold. I imagine they have some free issues that are going to be sent to review sites, but those are probably negligible compared to the copies that will be snapped up by the millions of WoW fans.

This is, in essence, the patronage model of publication, which we've discussed in the past. The people with the money (game fans) pay to have works of art made for them. Mass distribution here happens because the game is so hugely popular that printing a magazine for subscribers only makes sense. If you were to do this with a less-popular subject matter you'd have to charge each patron/subscriber a higher price per issue.

If you're interested in the thinking that went into making this a print-only art item (no online edition) you can read various interviews and blog entries on gaming sites; ars technica's Ben Kuchera published something on this last August and has a brief update on the first issue.

I find myself unable to add anything to the snarky but oh-so-on-point commentary by John Scalzi on just exactly how epic Amazon's fail was this past weekend in its spat with Macmillan. You'd think after the 1984 fiasco, and the gay books fiasco they would have learned something. Apparently not.

This gang of Cartel cronies has filed papers opposing a motion by Joel Tenenbaum's lawyers to have set aside a huge monetary decision against him. Tenenbaum is facing a USD 675,000 judgment for sharing thirty songs.

The saddest part in this sad story is that Tenebaum's lawyers aren't even asking for the judgment to be dismissed; they just want the damages reduced to the statutory minimum of 750 per song. Which is, if you're a college student, still a whopping huge fine. As I noted earlier this week, big numbers make for scary stories, but are totally disconnected from the actual reality of what people are doing.

Copyfight's favorite UK prankster, Banksy, is set to debut his "street art disaster movie" at Sundance. Supposedly it will show Banksy and other graffiti artists at work but it's not clear if his identity will be revealed.

Yet, the fact remains that most people speed. Some people are really egregious dangerous hotheads. But the vast majority of speeders are not those people - they're just folk who are making an estimate of the safe speed they can achieve, what the prevailing traffic is doing, and driving accordingly. Speed limits be damned.

Likewise, there are some really egregious copyright violators - factories in China that pump out millions of unauthorized DVDs. But most people are casual copyright violators, because they're engaged in activities that seem safe and sensible, such as loaning books to each other. What's necessary is a copyright enforcement regime that recognizes not all copyright violations are the same, and doesn't try to pile on ridiculous fines for sharing a few songs in the absurd hope that this will induce social behavioral change.

Cory Doctorow's latest column for the Guardian (UK) starts to sketch what such a common-sense + copyright scheme might look like. As a first step, he proposes that we re-establish the difference between commercial and non-commercial copying. The former, done in order to make money, would be treated differently from the latter. There are, of course, large gray areas between the two obvious extremes, which Doctorow acknowledges.

He goes on to give several examples of things that, applying a common sense test, would seem to be OK even though they might be thought of as commercial (e.g. mailing a copy of an interesting technical article to your boss). I definitely could quibble with some of his examples and I imagine many readers could as well. This is both on and off the point. It's off the point in that the specific examples don't necessarily matter if you buy into the principles behind them. It's on the point, though, in that what may seem like "common sense" to one of us may not be a shared idea of common sense to all. And "common sense" evolves, often faster than the law can change to catch up.

What's needed, I think, is a way to go beyond the simple phrase of "common sense" and to talk about what that might mean and how it would change. At base, though, I think we all agree that overly rigid copyright regimes serve nobody's interest.

Good hackers who love books and evil librarians, really, but that's too long for a post subject.

In response to this morning's posting on the silliness inherent in trying to breed panic over people reading other peoples' (e)books, someone pointed me to this statistic from O'Reilly: their e-book sales for 2009 were up 104%. What makes that an interesting number is that they took all the DRM off their books about a year and a half ago.

Clearly somebody is doing something right here and maybe the book publishers should be paying more attention to this than to scary reports.

Eric Hellman writes a blog called "Go to Hellman". As you might expect from the name it's not always the most reverent or deferential of posting sites. Earlier this month, Hellman had some really choice words for the publishing part of the Cartel.

You see, the publishers are starting to scare themselves again with the specter of "online book piracy," based on a study by Attributor, a company whose product I reviewed a couple years ago. As I noted, Attributor believes that its technology to track where copies go is superior to DRM technologies that attempt to prevent copies from going anywhere in the first place.

As reported in Publisher's Weekly, online copying is "pervasive" and may be "costing" publishers USD 3 billion. Those are some scary-sounding statistics, right? But what behaviors do they actually describe?

Well, as Hellman points out in excellently sarcastic tones, the behavior is that of reading a book you didn't buy. Shocking, I know! Someone buys a book and someone else reads it! Quick, call the cops and arrest those people who are, y'know, doing what libraries do.

Hellman's back-of-the-envelope calculation is that library lending could be "costing" publishers over 100 billion, per year, based on the roughly two billion books that are lent out by libraries in the US on an annual basis. Shockingly, these institutions also lend out CDs and DVDs, too. Goodness knows how much this terrible practice costs the Cartel!

The sarcasm is excellent and appreciated - bravo! To be serious for a moment, Hellman is good reading on library topics in general; for example, readers might enjoy his mini-economics post from earlier this month on "Why Libraries Exist."

In the letter, OK Go admit that they don't control their videos on YouTube, EMI does. Even though the band makes its own vids, EMI is fronting them money for the production and taking ownership of the result. As a result of EMI's deal with YouTube, EMI doesn't get paid if you embed a YouTube vid, so EMI turns that off. Because we all know how important those fractions of a penny are to this quarter's bottom line...

To the band's credit, they seem to understand quite well the position that everyone is in, including themselves, the labels, and the fans. There aren't any magic solutions here - as Copyfight has been arguing for years, we need new and better business models that keep creative people fed and productive. If big record labels happen to die along the way we won't be shedding any tears. Nor, it seems, will OK Go, who provide the embed code on their blog page for the Vimeo version of their video, and these words of wisdom:

EMI won't let us let you embed our YouTube videos. It's a decision that bums us out. We've argued with them a lot about it, but we also understand why they're doing it. They’re aware that their rules make it harder for people to watch and share our videos, but, while our duty is to our music and our fans, theirs is to their shareholders, and they believe they’re doing the right thing.

A Friday opinion piece in the Wall Street Journal on the "death" of the slush pile is generating some amusing responses around the blogosphere.

(The "slush pile" is the name given to the unsolicited and unagented manuscripts that are submitted by authors directly to publishers, movie studios, etc. without the assistance of someone like a literary agent. Usually slush pile authors are unknowns hoping to break through.)

Boingboing pointed to a response by Seth Fischer on Rumpus in which he more or less admits that nobody's going to get published out of the slush pile - though he himself still sends in unsolicited manuscripts. Instead, he argues, authors should consider self-publishing. Considering that the Copyfight entry on CreateSpace, a self-publish-on-demand offering still continues to garner comments and feedback 2+ years after I posted it, I would say that this is a more viable option than people might initially assume.

It's easy to say that mash-ups have been around forever. For at least the last 15 years popular club dance music has featured DJs who use various technologies such as turntables, mixers, and effects boxes to produce sounds using two or more original recordings. Like many "underground" pop phenomena, the mash-up has escaped its original scene and been incorporated into everything from television shows to console games. Lately, even such staid journalistic entities as the Wall Street Journal have taken notice of mash-ups.

Those three links go back to Bootie Blog, one of the past decade's biggest champions of the mash-up. Their dance parties have been hits in cities all over the world and they've joined the ranks of online music bloggers promoting the mash-up art form. Each year they produce a "Best of Bootie..." CD featuring their choices of the best mash-ups of the preceding year. (I don't always agree with their tastes, but that's beside the point.)

This year, their CD drew the attention of EMI Entertainment, which objected to the inclusion of "Nirgaga" a mash-up by DJ Lobsterdust of the recent pop hit "Poker Face" and Nirvana's classic "Smells Like Teen Spirit." (By the way, the track is still available lots of places on the Web; do your own searching.) According to EFF, DJ Lobsterdust was also served with a DMCA takedown notice for this track.

As Bootie rightly point out, the Nirvana track has been mashed all over the place so it's particularly odd to see EMI going after just this one track. Perhaps this is the start of yet another misguided attempt by the Cartel to control the evolution of music. Or maybe they just don't like seeing themselves talked about that way in the WSJ.

I'm sure all of my readers have been reading plenty about the disaster in Haiti. If you're in a position to make some kind of donation to help out, please do so. Every relief expert I've heard talking in the past few days says there is a desperate need for simple cash, which can be used by organizations that already have infrastructure in place to get the most needed supplies to the people who are in the direst need in the shortest amount of time.

My personal choice for donations is MSF/Doctors without Borders. But there are a lot of good people doing their best work in this crisis and you can choose one that meets with your philosophies and practices I'm sure.

Along the way, please be careful of scammers. There are a lot of new Web sites and organizations springing up and sadly some of them are just plain old rip-off artists. If you are unsure of how your money will be used you can visit some third-party rating sites like Charity Navigator that will attempt to give you guidance on charitable organizations based on parsing their income/expense statements, tax-exempt status filings, and so on.

Some of the larger news organizations also have lists of charities for you to look over. For example, here is a list from MSN that includes several religious and non-denominational charities and picks out some Haiti-specific organizations they consider good to support.

Marshal McLuhan is a famous media theorist; among his best-known aphorisms is the notion that "the medium is the message." How does that apply to pop hit band OK, Go? Well, it's like this...

Back in 2006, OK Go were just your average unknown 4-guy pop band. Then they released a video onto YouTube and it went viral. Suddenly their song was getting attention, airplay, and the band was made men.

McLuhan's essential message is that the medium influences how the message is received. So if you're the now-popular band OK Go you should just put your new video out on YouTube and presto it'll go viral. Right? Wrong. The problem is that the band's new video is locked up in a foolish copyright-grasping box.

As reported on fan blogs like station.newteevee, the video both can't be viewed in non-US countries (which is to say YouTube is blocking large ranges of IP addresses) and the Google subdivision has blocked all attempts to embed the video. Which is to say not only is the medium not part of the message now - since embedding is such a key part of the YouTube experience - the band is also sending large chunks of its potential fan base a "we don't want to show this to you" message, if they happen to be accessing things from the wrong IP address space.

But wait, there's more. In a move pretty much guaranteed to piss off anyone who's not a trufan, OK Go have put out a plaintive "why aren't we popular anymore" video. As NewTeeVee points out, it comes across as blaming the fans for not watching the video when in many cases they can't and even where they can, they can't embed it so it will be seen by other fans.

Dear OK Go: The medium really is the message. Putting locks and chains on the medium changes it, and therefore changes your message. Like it, fix it, or leave. - Marshal

According to The Public Domain blog, January 1 is supposed to be Public Domain Day. I confess I'd never heard of it before. Nor did I know that Jan 1 of this year was originally going to be the day that famous works of American and European literature would have passed into the public domain. However, since copyright term extension happened, these works did not become part of the public domain. In fact, it appears that NO works passed into the public domain this year. This ought to be good news for copyright holders, who can continue to make money from their longer copyright terms

In fact, as Cory points out in boingboing today,

more than 98% of all works in copyright are "orphaned" -- still in copyright, but no one knows to whom they belong.

It's true you can still find copies of many of these orphaned works, if you know where to look. People own them; libraries may have them. But don't try to make use of them, either as reprintable material or even as source and inspiration. Because they're orphans you can't even find someone to pay for those rights. They're under a lock to which no one has the key.

By making the copyright system "opt out" instead of "opt in" we've engineered a fundamental social change in the world and not really a change for the better.

At the end of last year, NPR did a series reviewing some interesting developments in the music field during the past decade; as part of that series they did a piece on "The Loudness Wars".

The story talks a little about MP3 compression, which I assume most Copyfight readers understand, and its impact on audio quality. But most of the piece is about how dynamic compression has been used to make everything more uniformly loud. Christopher Clark's infographic accompanying the story illustrates this point in terms of peak sound levels over three decades of hit songs.

And the NPR story asks the interesting question of whether one of the reasons we're buying less music today is because it all sounds so remarkably bland and the same. In the push to make everything noticeable have we created a sound field in which nothing is noticeable and thus nothing motivates us to go out and buy it so we can listen to it again?

I highly recommend clicking through to the YouTube video of the same title, which very clearly illustrates how the push to make everything as loud as possible ends up distorting and homogenizing the music. The video's narrator makes the salient point that in the end you are the one in control of the loudness knob so you can turn it up or down as you see fit, but if you use your loudness knob on something that has already been compressed you lose out on things like punch and even simple sound clarity.

It's interesting to me that at the bottom of it all we find the same conflict that runs through so much of the Copyright Wars - who is in control here? The record producers who want things to be as loud as possible, or the customers with their hands on the dial.

The tool is just a simple form with text boxes that segregate comments into logical groups in response to standard question prompts such as "Give the FCC details about your life as a musician." It's not terribly sophisticated but may lower the barrier sufficiently to encourage people to write more in-depth and informative comments. Now if someone could just demonstrate that any form of public comment actually influenced FCC rulemaking...

It's been a while since Copyfight paid much attention to the highly IP-restrictive market in college textbooks, particularly since I stopped teaching a few years ago. Efforts like Ed Felten's seem to have petered out. So I was very pleased to read Andrea James' piece in boingboing yesterday taking on the textbook cartels directly.

James goes through the similarities between textbook publishing and the (legal prescription) drug market in point-by-point detail, with citations and sources. Well worth reading both the summary points and following up the extensive URL links. James also replies to several of the reader comments in response to the posting.

Big damned heroes, sir! (*)

This is old news but I just heard about it. MIT's faculty voted unanimously to put all their research papers online. That may not seem like a big deal outside of academia but let me assure you it's a huge deal inside the ivory towers. Professors can opt out if they want to - or more likely if they're forced to by publishers who want to profit off the publication and confuse dissemination with useful publication.

To my knowledge this is the first time an entire institution of higher education anywhere in the world has adopted this kind of policy and the fact that the vote was unanimous shows just how far the commercial constructions around scientific literature have drifted from the ideals of research, publication, and academic discourse that the researchers themselves hold to.

There are some times when I am really proud of my alma mater and this is one of them. Big damned heroes indeed.

(*) Firefly reference, for those wondering what the heck I'm on about.

In one of those "you gotta be kidding me moments", the dogged Canadian pursuer of matters online and intellectual, Michael Geist, blogs that the Cartel (Canadian version) may have pirated as much as CDN 60 billion in recordings. The admitted facts amount to at least $50 million in infringements, but you remember how the Cartel went for "statutory damages" (the maximum allowed by law) when it was suing its customers? Yeah, that. Well, if you count the statutory damages for the 300,000 songs involved in the suit? Sixty billion, baybee.

Geist has a blog entry summarizing the situation, but the full read is over at his Technology & Law column (read it online via the Toronto Star's site). I should also note that Geist publishes a free email newsletter with excerpts and updates on many cases of interest.

The issue at hand here has been long standing. In fact, the lawsuit itself is over a year old (filed October 2008) and that suit was only filed after the hundreds of artists involved got fed up with decades-long delays by the Cartel in paying what are called "pending" royalties. These royalties are due under law, but the situation in Canada is such that the Cartel doesn't have to pay before it uses the material, it just has to make a list of whom it owes what. And according to Geist, the list goes back to the 1980s. Which, I feel compelled to point out, predates even the original Napster.

In theory, the list should be paid off, but there are no penalties or deadlines in law for it, so the rights holders have to negotiate for what's due to them or if that fails, sue. And sue they are, thousands of them in a class action (PDF link) that seeks not only the back royalties that are due, but punitive damages because the Cartel has willfully stolen from these artist for so long.

Funny, where have we heard language like that before?

In case you didn't have enough reading to do this weekend, here are couple of items analyzing the Google Books settlement.

First, Fred von Lohmann at EFF just published his third blog entry on the topic.

1. The first piece, very short, points out the key conflict of this settlement: we're trading off increased access to works that might otherwise be difficult to find, but at a potential cost in lost privacy, lock-ins that discourage competition, and limits on what otherwise would be fair use.


2. The second entry, much longer, looked at the issues around access. Access is the big promise of what Google is doing - you can not just search, but read online, millions of books that would otherwise be inaccessible to most people.


3. Item the third, in yesterday's column, are the downsides - the price of that access. The big fear here is not that access will be denied, but that it will be controlled. It will be for pay - rather than free in a library - and on Google's terms, rather than US Copyright law fair use terms. Those terms, von Lohmann argues, are potentially monopolist or at least highly anti-competitive.
   

Or, if that's too much heavy reading for you, the Copyright Clearance Center has put online a 21-minute podcast of their analysis by Lois Wasoff (also available as transcript). CCC would also like you to note that they're hosting an online seminar Dec 10th with Ms. Wasoff. CCC is a rights-holders organization and so approaches this settlement from the point of view of those who might want to claim rights over the books that Google has (or will) include in this plan.

It has been pointed out to me that I may have underestimated the impact of some of Lynn Viehl's hypotheticals in yesterday's Blink. Although the statement she posted is indeed a factual description of her income, the column surrounding it has several big "if"s in the middle that I glossed over on first read.

First, she's confused about what qualifies someone for food stamps. Federal poverty guidelines appear to be based on adjusted gross income, not net income. Her AGI is well above poverty level even with just one book.

Second, there's an assumption that this one-book-per-year gig is the sole source of income for a family of four. I don't know Ms. Viehl's personal situation but I think it's safe to say that anyone who is sole support for a family of four is probably holding down either multiple jobs (one of which may indeed be "writer") or is trying for a job with a predictable income large enough to feed said family, and writing is far from a predictable income stream. Finally, even if one is a full-time writer, one has other sources of income available such as speaking fees, and possibly royalties from other books.

That does not mean Ms Viehl's column is wholly misleading; at base I think she's trying to give people a more realistic view of writing for a living. You can't just take one number - the advance - and draw conclusions from it.

Nate Anderson provides extensive coverage of Michael Fricklas's talk at Yale Law. Fricklas is top legal attack dog for Viacom, and the headline on the ars piece highlights the lawyer's admission that the Cartel's jihad against its own customers was... well, a jihad, though he uses the word "terrorism" which is an equally emotionally laden term.

Viacom, says Fricklas, isn't out to destroy fair use. Indeed, the company has won lawsuits and published Web sites based on fair use principles. It's just that, like the rest of the Cartel's philosophy, it wants your fair use to be on its terms and under its conditions.

For example, Viacom supports a "three strikes" policy - another terrible bit of info-propaganda. When people say "three strikes" they're usually referring to things like state laws that assign extra punishment to people who have been convicted in courts of breaking felony statues multiple times. When the Cartel says "three strikes" it means "we accused you of three copyright violations."

And of course if you've been accused by the Cartel you MUST be guilty, so it's OK to take away your Internet. And your household's Internet, too. Damned terrorists... oh, wait, it's Viacom who are the terrorists. Can we take away their Internet?

Fricklas is also still a big fan of DRM, a position for which Cory has no sympathy at all, calling it "magic bean syndrome." In essence, the Cartel have sunk so much money, time, and public image into the idea and implementation of DRM that they're unable to understand that it's the cold fusion of the content world. Fricklas appears to believe that the problem isn't DRM-the-concept, it's just the specific DRM that the Cartel have used to date. I don't think, so, Mr. Fricklas.

So what do we make of this set of admissions and non-admissions? I think it's important to remember that Fricklas is not an independent person. He's paid to create and promote the party line and that's what he's doing. It's no surprise to any sentient observer that the Cartel have figured out that suing their customers is a disaster from both financial and PR standpoints, so backing down there is a given. But in a sense this is a diversionary tactic. The Copyright Wars are, and have always been, a struggle for control. Viacom is just shifting which weapons it uses to maintain and extend that control.

The indefatigable Michael Geist has posted the slides and audio of his "ACTA 101" talk. This is must-see stuff, covering pretty much everything you need to know about ACTA, the Anti-Counterfeiting Trade Agreement that's being negotiated mostly in secret right about now. (I had some problems with the embedded version - you might need to click through to blip.tv to watch it.)

As Cory says, ACTA "stands to fatally wound all user-generated content sites from mailing lists to YouTube; [...] criminalize kids for noncommercial file-sharing; [and] put your internet connection in jeopardy if anyone in your house is accused of infringement..."

He savages Rupert Murdoch for being the antiquated fossil he still is, someone who not only fails to understand the modern interlocked Web-centric methods of information distribution, but also someone who fundamentally opposes the very notion of fair use and seems to think if he just hires enough of the right lawyers he can make it go away.

OK, making fun of Rupert Murdoch is sort of shooting fish in a barrel but damn we need more funny stuff in these Copyright Wars.

So (with a hat-tip to Boingboing again for the alert) I direct your attention to Public Knowledge's latest attempt to keep the Cartel from driving the home entertainment experience off a cliff. The details are long and boring - what you need to realize is that they are requesting permission to shut off part of your home entertainment system, whenever they think it's a good idea.

Of course, you'd have to buy all new equipment to comply with this. The straightjacket and compulsory eyes-open technology will no doubt be included, to ensure you're actually watching what and when they want.

Please, take a moment to read over Public Knowledge's suggested comments, make them your own (or write your own) and submit them.

The shocking part about this whole thing is that now, ten years or more into the Copyright Wars, we still have such stupid people in positions of control. Take this week's example, Alan Wurtzel. This specimen of executivius fossilus cartellae works for NBC as, apparently, some president of some research of something.

Whatever he's researching, it's certainly not television because Mr Wurtzel is shocked by the "completely counterintuitive" result that if you let people watch TV how and when they want.. surprise! they watch MORE of it. Give the consumer what he wants - clearly a new and revolutionary idea, and one that a whole network's research department was unable to come up with. Simply shocking!

Sorry, dear readers, but even making fun of these idiots has gotten old for me. I'll just post the links and you can go read and nod your head sagely because we - you, me, all the rest of the readers here - have known this forEVER. And I bet we don't draw Mr Wurtzel's salary, either.

New York Times piece explaining how the Cartel has discovered that yet another technology (in this case the PVR) is benefiting their business.

EFF Deep Links it, with insufficient sarcasm (if you ask me).

Obligatory back-link to two weeks ago when I pointed out the difference between the fossils (as nicely summarized by Nate Anderson) and the very with-it and hip Warren Ellis.

Yet Another Study Showing That People Who Download The Most (free stuff) Actually Buy The Most. This one is sure to be ignored as well, as the UK continues it's pell-mell course toward copyright extremism. Boingboing! has been doing a fabulous job tracking this particular idiotic trend as well as related efforts by the EU to define war as peace, hate as love, and make darkness the standard.

I wanted to point to two very different published items, both of which bring thought to bear on the current state of the Copyright Wars.

First, Nate Anderson - who has been doing stellar work in the trenches of this slogfest for several years, primarily at ars technica - published a piece called "100 years of Big Content fearing technology". This gem simply puts together things that the Cartel have spewed as they dug in their heels and fought kicking and screaming against every innovation of the last century. We all know about Jack "Boston Strangler" Valenti's insane rant before Congress, but did you know that John Philip Sousa penned a screed against the gramophone?

The Cartel did manage to kill DAT (Digital Audio Tape) by convincing Congress to impose onerous fees but their success in suppressing other advances has been less. And everywhere they failed, they made money. If this makes any sense to you, then you are not like me.

Warren Ellis, for some months now, has been publishing an online Web comic called "Freak Angels." It appears approximately every week, for free, on Fridays. And like many who publish online for free, Ellis makes money from associated sales of merchandise including hardcopy versions of the comics. In today's "Interlude" page, he notes that the preceding strip, which ends in something of a cliff-hanger, is the end of what will be printed in Volume 3. And he has some amused comments about how some of his fans respond to the different availability of the free and for-pay print editions. It's an interesting contrast to the men that Anderson quotes.

Actually that probably should be addressed to Ralph Lauren's lawyers, but in theory they're acting on behalf of the company, so we get to mock R.L., Inc.

No, instead I want to talk about how stupid a corporate lawyer can be. You see, that image there on the right? That's a Photoshop disaster. The retouching techniques have been taken so far that the person has ended up looking like a cartoon. If you search the blogosphere for "lollipop head" and "ralph lauren" you'll get a wad of scathing commentary on just how badly the image has been distorted. In fact the image was up on the "Photoshop disasters" blog for a while until they got a DMCA takedown notice and they or their ISP caved to it. (Interestingly, the top photoshop disaster currently shown is almost exactly the same disaster done to Brad Pitt, whose head and shoulders are grotesquely out of proportion to his hips and legs in the Edwin Jeans ad.)

Then a DMCA notice landed on boingboing's ISP. Dear lawyers, don't do that. Because not only will you not get your stuff taken down by doing that, you'll get mercilessly mocked. Which you roundly deserve. Copyfight salutes Boingboing's ISP for ignoring this threat and proffers a hat-tip to Cory for reminding us that sometimes humor is the best defense.

http://dilbert.com/strips/comic/2009-09-09/. But... trademark? Everyone knows patents are more profit(eer)able.