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.

My wife pointed this one out to me. It's a couple years old but the message is sadly accurate.

The assertion is that kids - today's learners, tomorrow's adults - want to be able to create, consume, revise, remix, and share. Where are the 21st century technologies, teachers, and most importantly the 21st-century thinkers who will teach them how?

(And because I'm into shameless promotion of things I think are good causes, check out Donors Choose where you can find school projects (in America at least) that teachers have put together and are seeking funding to make happen.)

I imagine many readers have seen the movies (the success of which I think were a prime motivator in the acquisition) but there are also numerous TV shows featuring the licensed characters as well as more merchandise than you can imagine. Everything from cheap T shirts and Halloween costumes to mega-million theme park rides can be found with the Marvel logo somewhere And all of those items were produced by companies other than Marvel itself, under a variety of licensing schemes, many of which overlap in one character. The company that makes the Spider Man movies is not the same one that makes the Spider Man pajamas my kids love so much. Each has some variety of licensing rights that it now will have to (re)negotiate with the Disney empire.

Marv Wolfman has an excellent post raising a number of intellectual property and competition issues. He notes that some of the existing Marvel deals are with companies like Universal and Sony, which directly compete with Disney in areas such as movies and theme parks. And as Patrick Goldstein points out in the LA Times story, Disney is a manufacturing empire with "merchandising assembly lines" that will likely bring it into cooperation or competition with a wide array of former Marvel licensees.

(props to nerdcore.de for the Mickey/Wolverine mash-up image.)

First, a bit of background - bear with me here. It's an ongoing frustration for Web designers to try and get the things that show up on peoples' screens to look like what the designer wants. I vividly remember going to visit a customer who complained that my product looked terrible on her screen and discovering that she had somehow jiggered her Web browser settings to map the colors I had chosen into some hideous chemical green and pink.

For most of the history of the Web, designers have fought to take back control of the appearance of their product through techniques such as embedding text in images or using other technologies such as Flash that permit much more rigid and detailed settings than most browsers' HTML. Unfortunately these technologies tend to produce bad user experiences by being inaccessible to blind users, taking a long time to load, requiring constant updating of plug-ins, and so on. Over the past few years, the evolution of CSS (Cascading Style Sheets) has allowed designers to do more of what they want without locking up their content. Most critically, freeing text makes page indexing more accurate, which helps findability.

One of the more recent additions to the CSS arsenal has been the ability to link to a specific display font. Without such links the designer is at the mercy of whatever fonts are loaded into the user's browser. Depending on the browser is at best an imperfect solution as fonts may be missing or have bugs in them. If you want your HTML-encoded text to be properly read everywhere by everyone, the best bet is to say "render it in THAT font" and then test the heck out of it to make sure it works.

Unfortunately, even linking to just the font you want may not work. Many fonts - even those that are supposed to be released for free use - do not contain correct licensing terms for redistribution. In comes Typekit, with a promise to provide fonts with a consistent license arrangement. It does depend on using JavaScript to access their library and request the fonts, which is a small drawback, but the ability to design Web content without tripping over more DRM is a big payoff.

(Full disclosure: Jeffrey Veen and I overlapped in time at the MIT Media Lab. I did not speak to him for this article.)

At least that's what the DoJ thinks is fair, according to papers it has filed in the Jammie Thomas punitive damages debacle. Yes, certainly Congress intended low-income students and single moms to be ordered to pay USD 2 million because... um, because something. Well, the DOJ seems to think that huge damages are deterrent. Which we can clearly see from the massive drop in file-sharing that has taken place since Congress passed this law in 1999. File-sharing has gone down in the last decade, right? That's what deterrence means, right?

"We are pleased that our sock puppets who have completely taken over the DoJ agree with us on this case" the RIAA barely managed not to say out loud.

It has been said many times, but it bears repeating once more: the biggest threat to most new artists is not copying, but obscurity.

I've been watching the struggle as one of my favorite new acts - the steampunk band Abney Park - works through the difficulties of getting themselves, and their unusual musical approach - noticed. They don't fit any radio or categorization format I'm aware of. They do mix in elements of industrial, but they also do old-style sea shanties, which doesn't make them consumable by the usual radio stations that play industrial.

Unlike writers, who can organize things like an Interstitial Arts book publication and join in the effort to publicize themselves, the band seem to be going it mostly on their own. They've played a number of conventions - steampunk cons mostly - and related festivals.

And in addition, they're giving it away. Almost every song they do is up on YouTube and other sites. If you prefer a direct feed you can subscribe to a blog (LiveJournal) at: http://community.livejournal.com/abneypark - and get fresh live vids of songs that aren't even released yet. According to numbers I've seen there, at least one of their vids has over 100k hits on YouTube.

Still, I'd venture to guess that most folk don' t know about Abney Park and I'm certain there are thousands upon thousands of other great bands out there all needing exposure and ways to connect to people who will love what they do. We so desperately need ways to help these creative types, and not more ways to lock up content.

When I posted the previous entry, noting EFF's critique of the Burning Man Organization (BMO) restrictive IP policy, I was uncertain what category to use. I chose "Culture" sort of on a hunch. Reading Andie Grace's extensive response in the "Burning Blog", I see this hunch was right.

On the one hand, we have BMO and a set of attendees, who seem to feel that what happens at Burning Man should stay at Burning Man. The potential impacts of publishing shots of people running around naked in the desert, and the personal violations of what many consider sacred space, are getting tangled up with talk of commercial exploitation (or use, depending on which side of the fence you sit) and the norm that I own my own photographs or other recordings and can use them. In addition, you have potential conflicts between BMO, which feels it has a "brand" to protect and does aggressively police use of its trademarks - and artists/performers who sink thousand of their own dollars into creation of performances and spaces and artifacts, the publicizing of which can vastly enhance the artists' reputations and careers.

These expectations sit within at least two different cultural frameworks, one of which says that the standards for things like model releases and permission grants should apply, and the other of which says that an event like Burning Man is essentially a private affair, within which the organizers are free to create the rules as they see fit - including rules about making recordings - and people who don't like those rules are free to vote with their feet.

Finally, we layer onto this at least two attempts at legal framing - the DMCA and Creative Commons. The first, as an attempt to top-down legislate how rights-holders should retain their copyrights is pretty roundly regarded as a failure. But there isn't anything better, except maybe Creative Commons which has attempted to craft licensing frameworks that are less restrictive. Since BMO feels that CC doesn't do what it needs, it has nothing else to fall back on except the DMCA and other antiquated legal structures.

What's the right answer here? Heck if I know. CC is certainly not the be-all and end-all of possible licensing arrangements. It needs to grow and evolve - one of the things that makes CC so interesting is that it can grow and evolve and be transnational in ways that US laws cannot and do not. I think that the people on both sides of this argument are good-intentioned and reasonable, which suggests compromise is possible.

Still, I think BMO are fighting a rear-guard action in a losing war. We live in a "facebook culture" where people post everything and anything about their lives and privacy is a quaint notion for graying hippies. People find out they've been broken up with via someone's status update. People follow the minute details of events in real time via Twitter feeds. People want to own their creative works and use them as they see fit and if that includes making a buck then so be it. Burning Man needs to find its place within that cultural shift, not attempt to be some Rock of Gibraltar standing against all tides.

(P.S. The comments on the Boing-Boing blog entry on the topic are also worth reading.)

I'm not a burner (person who attends the Burning Man festival) but several of my friends have gone in past years and some will go this year. And more than a few are unhappy with the Terms and Conditions that the festival is attempting to impose on recordings (photos and videos at least, probably audio as well) taken out on the playa.

As the EFF's Corynne McSherry puts it, the terms include a legal "sleight of hand" that will allow the organizers to claim ownership of rights in those recordings, if the person uses them in ways that the organizers don't like. McSherry argues that the Burning Man Organization, which runs the festival, appears to be trying to build up a wall of DMCA-backed bricks to cover itself in all sorts of questionably legal and highly restrictive ways.

Yeah, like THAT's going to work with the attendees.

Back in June of last year I suggested readers bookmark a link provided by Bruce Schneier that collected several items related to the false claims that anti-photography laws are a useful part of an anti-terrorism strategy.

Today a friend pointed me to a blog entry by Phil Coomes, a picture editor (and photographer in his own right) for the BBC. In this posting Coomes relates several stories of photographers in the UK who have been harrassed or worse for taking pictures of public buildings, of police officers, and so on. It appears that the British photographers and photojournalists have had enough and are forming an organization called, explicitly enough, "I'm a Photographer, Not A Terrorist".

The site invites people to upload their own photos, presumably posed with signs like the ones on the home page. In addition, they provide a "bust card" that people can print out and carry with them. The instructions are specific to the UK and relate to its "Section 44" law that had photographers protesting outside Scotland Yard not too long ago. I would be very interested in seeing examples of similar cards customized for other countries, such as the US and Canada.

(Full disclosure: I'm a hobbyist portrait photographer in the US and though I don't make any money from my photos I'd like not to get arrested for pointing my lens at a policeman somewhere.)

First, I want to acknowlege the comment made in this blog by Christopher, an owner of a small radio station. It's pretty clear that small radio stations are struggling, like many small businesses. The question is whether the bill contains the claimed exemptions for small stations and whether mega-conglomerates like Radio One are also struggling or whether they're simply using people like Christopher as shields.

The FCC is reviewing the complaints against the radio stations that refused to run the ads, and promises there will be a public comment period during the review, but no timeline is mentioned. Meanwhile the Post's article gives a hint of some of the confusion surrounding the issue - Radio One is reporting some revenue gains, but also a signficant drop in ad dollars. They're also claiming that the bill would result in job losses - but isn't that always the claim made when people want more money for things?

Finally, in a moment of amusing irony, I note that among Music First's sponsors are the noted Cartel bright boys, the RIAA. Maybe broadcast radio should have come to the aid of Web radio when the Cartel leaned on them, eh?

I can't decide if this is cool, creepy, or both. Best if you do the experiment yourself to see what's on, so follow these steps:

1. Go to http://www.dailymail.co.uk/news/article-1205737/Man-killed-shards-glass-hurling-girlfriend-shop-window.html.


2. In your browser (I've tried in Firefox and others report it works in IE, Chrome, and other desktop browsers) select a passage of text, say a paragraph, and "Copy" it.


3. Bring up a text editor such as Notepad on a PC or similar (even works in Emacs) and Paste using whatever operation that editor uses for pasting text.

Read more: http://www.dailymail.co.uk/news/article-1205737/Man-killed-shards-glass-hurling-girlfriend-shop-window.html#ixzz0NuRbqTSe

Viewing the page source doesn't give any immediate clues as to what's going on, so I'm guessing it's some kind of javascript hook. On the one hand I think it's a fairly clever way to encourage people to link back to the original content and seems to be much more in keeping with what I think of as the "spirit" of the Web than wrapping up content in passwords or DRM. On the other hand, silently adding text into peoples' copy buffers strikes me as creepy and probably a good way to manufacture a code injection hack.

I thought I had talked about the "Performance Rights Act" before - now called the Civil Rights for Musicians Act - before, but apparently not. You may recall that the act's sponsor, John Conyers, gained a moment of digital notoriety by publishing the Downing Street memos as samizdat that the official media wouldn't touch. Conyers' legislation is apparently attempting to close the rights loophole that radio enjoys.

Briefly: even though it's a pittance, artists do get some money from CD sales. Many of the digital download deals also funnel money back to artists. But when a musician's work is played on broadcast radio, no money goes back to the artist. Originally the theory was that the artist was 'compensated' in the form of exposure for his/her work, and radio producers and DJs chose things based on what audiences wanted or liked. Of course, there has always been pay-for-play (payola) of one form or another to influence radio playlists.

Conyers bill is an attempt to change this situation, instituting a set of fees for broadcast radio, along the lines of the fees that have been imposed on Web radio. One big difference: broadcast radio is extremely profitable, unlike Web radio. Satellite radio such as XM has made a splash but hasn't been able to back it up with solid financials. Sirius radio, for example, has been teetering on the edge of bankruptcy for a while.

According to Warwick's column (and I confess I haven't read the bill), Conyer's Act would provide exemptions for the small and financially struggling radio stations while requiring large corporate radio to funnel at least a little money back to the artists. Sounds great - now why couldn't we get the same kind of Protection Act for Web radio?

I've been wanting to avoid writing about the (latest) mess Amazon finds itself in. However, the story is being mis-told all over the place, so I'm going to pontificate about it.

It is true that Amazon pulled some e-books off Kindles after customers had paid for them. The problem is that those books were 'stolen goods' to which Amazon never had sale rights in the first place. The fact that those pirated e-books were Orwell's 1984 and Animal Farm makes me think this was a deliberate hack set up to embarrass Amazon. And it seems to be working, as the company first took the action silently, then has failed to manage the publicity around the incident, starting with the initial New York Times piece.

The gaffe here isn't that they pulled e-books that people had bought; it's that they're currently in a situation where they're looking at new competition from a new e-book reader put out by competitor Barnes & Noble and they can't manage to keep egg off their face. The way this situation has been handled is putting doubts into the minds of customers who are already hesitant to adopt a new reader technology.

For years, the Cartel has slowly been infecting the public mind with the notion that by buying a CD or DVD you don't actually own that music or movie - you just own a piece of plastic and the bits that are burned into that plastic are still the Cartel's property. Now Amazon has shown that the same thing is true for Kindle e-books. You don't really own the books, you just own the hunk of plastic pictured above.

That has some further unpleasant implications; for example, Christopher Dawson's piece "Amazon ate my homework, or why DRM stinks for education" draws a direct line from Amazon's actions to the larger implications of harm to student education from digital control technologies. In an ideal world, schools would save a bundle by buying Kindles or other e-book readers and giving (or loaning) them to students. My bet is that, just as there is a serious economic argument for Kindle over home-delivered newspaper, there's a serious financial case for putting student texts onto e-readers.

But what teacher or school administrator wants to worry about their whole school's supply of a textbook disappearing overnight because of some error that the publisher (Amazon) decides to "rectify" by erasing all downloaded copies of the book? I'd guess none. Maybe Amazon can convince schools it won't happen. But really, you don't want to have to make that argument in the first case because this should never have happened. Amazon should have taken steps to make things right with the Orwell book rights holder without impacting its customers' experience. I feel like a broken record saying "customer experience matters most" over and over, but it's still true.

Amazon has just proven that it can take seemingly random actions that result in bad things happening to innocent people. And you're going to sell that as a good technology to... who?

PhD Comics presents its take on the process whereby scientists produce original material and then give it away (for free) to a system where other scientists work (for free) to select from those works so they can be published in journals that then charge huge fees to read this freely contributed work.

This is sort of funny, particularly in the way the cartoonist draws the rivalry between the journals Nature and Science. But it's also really serious business, in which peoples' life work gets held for very expensive ransom by an exclusivist system of copyright monopolists. It's one reason I'm a supporter of PLOS, the Public Library of Science.

The stated purpose of patents, as spelled out in the US Constitution is "to promote the progress of science and useful arts..." I've pointed out cases in the past where the way patents are granted and used is actually contrary to progress in the useful arts I practice. Now a pair of researchers have published a paper in Columbia Science and Technology Law Review called "Patents and the Regress of Useful Arts."

In this paper, the authors report on a simulation they conducted to examine the behavior of potential patent holders and competitors under a variety of condition. The PDF of the full paper is available from the bottom of that linked abstract page. They compared situations involving patents (exclusive rights) against two non-patent situations - commons and open source. The surprising result (to Copyfighters) is that open source produced inferior results to a pure commons system given how the authors measured innovation, productivity, and societal utility.

As with any simulation, it's certainly possible to argue with the parameters of the model, the experimental set-up, and the interpretations of the results. In addition, the game results may be biased by the selection of players who, in this case, were incoming law school students. It's also unclear whether any game of this sort can capture all of the motivations for patenting as they exist in the real commercial environment. People get patents to protect their own inventions or to restrict competition, of course, but they may also seek patents for purely secondary purposes, such as improving their bargaining position with larger rivals or with venture capitalists. Of course, you could counter-argue that none of that is really useful progress as conceived by the framers of the Constitution.

(Full disclosure: the second author of this paper was a grad student at MIT while I was there and remains a friend and professional colleague. For whatever reason, he didn't mention this work when I saw him back in April. I found this publication through the blog of a mutual friend.)

Project Gutenberg and the World Public Library are co-promoting a month-long event with that name. Their theme is one of "public access" and they're offering something like two million eBooks for download.

I haven't investigated completely but it appears that all the offered downloads are in PDF format without any DRM or other electronic encumbrances. (One can argue that PDF isn't as good as text, for any number of reasons, but that's a separate issue.)

He also blogs, with Gary Becker at the eponymous "Becker-Posner Blog". There, earlier this month, Posner put up a piece that was nominally on the future of newspapers.

The problems with newspapers are nothing new; what's new (and excuse my impertinence WRONG) here is one of the remedies Judge Posner suggests. After a long discussion of the costs and economics of newspaper publication, here's his final sentence:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

To be very clear, I have a large personal stake in this game. Copyfight, like so many other blogs, is built around the notion of taking things said elsewhere, pointing to them, and building on them. Since all writing in the US is born copyrighted, there would be a large blow to almost every blog if this kind of restriction were passed. It is a stupid idea.

The fact that it was put in as a final sentence in the blog posting makes me think Judge Posner hasn't really thought this one through. The comments in the blog are neither edited nor responded to, sadly, since several of the non-spam commenters take Posner to task over this nonsense.

Almost everyone, including the Cartel's own lawyers, appears publicly shocked by the USD 2 million verdict returned against a Minnesota mother whose fight against the RIAA has been something of a rallying point in the war the labels have waged on their customers.

The Jammie Thomas retrial was expected (at least by people on the reasonable side of the fence) to produce some kind of verdict that would indicate the general public's (as represented by the jury) disdain for asking someone to pay $222,000 for sharing 24 songs. To be fair, she probably wasn't the one who shared the songs, but they were shared from her computer. So she's held responsible. And now, facing a $1.9 million judgment, she's in an even worse position. Clearly the jury of her peers didn't share the common online opinion, which lends credence to the Cartel's claims that the general public support their position. As the Cartel's lawyers have noted, they did not ask for a specific penalty in their suit - it was the jury that came up with the damages number.

The question becomes: what happens now? Opinion in the blogosphere is still widely against the RIAA, up to and including artists such as Moby calling for "disbanding" the organization. Moby — who just released his latest album as an entirely self-made project, including free tracks and his own DJ remixes — is clearly speaking from an emotional center.

More legal-oriented opinions include the view that the damage award, and the copyright laws that underlie it, could be unconstitutional. The US Constitution has language against grossly excessive punishments including monetary damages. In addition, as Fred von Lohmann points out, the Supreme Court has issued some recent rulings indicating that it may find the practice of awarding large punitive damages as deterrents to be unconstitutional. These decisions may have played a part in the Cartel's decision to shift focus away from suing customers and onto turning ISPs into copyright cops.

Another widely discussed theory, discussed in depth by Greg Sandoval for CNET, is that Jammie Thomas could protect herself from any payment by filing for bankruptcy. This theory rests on a recent Ninth Circuit decision that held there are different standards for civil and bankruptcy cases. In a civil case, such as this one, the standard for finding against the defendant is that the act had to be "willful" - essentially the RIAA have shown that the file-sharing was not an accident. However, in bankruptcy court they would be required to show that the act was "willful and malicious" in order to prevent the debt from being wiped away.

My opinion is that they'll settle for some token amount. I can't imagine either side wanting this fight drawn out further in the courts or in the press. They are, as several pundits have pointed out, fighting about the past. And I'm guessing both sides would much rather put that past behind them.

The highest legal review body in France, the Constitutional Council, has said "non" to legislation trumpeted by the Cartel that would have allowed cutting off Internet access of people accused of copyright violations.

The French constitution contains clauses promoting a presumption of innocence and the Council determined that the legislation - which had already passed in Parliament (WAKE UP YOU GUYS YOU'RE BEING OWNED) - violated those clauses as well as infringing on French Constitutional guarantees of free speech.

The legislation already had to be revised once but passed on a second go. Now it's unclear whether the plan will be scrapped or whether Sarkozy will modify the law as the Council described and resubmit it.

What would you get if you took the 19th-century notion of a penny dreadful and updated it for the 21st-century iPhone? The makers of Steampunk Tales think they have an answer.

Steampunk is a pop-culture phenomenon this decade. There are books, music, and cons devoted to this movement. Since it has many roots in updated Victorian-era items it seems like fertile ground for bringing out something people from that time would have recognized as a novel, but updated to modern technological sensibilities.

Steampunk Tales is also drawing from the pulp-fiction publishing form that flourished in America in the mid-20th century. Pulp magazines back then focused on specialized audiences (westerns, horror, romance, detective stories, and science fiction were all popular pulp genres) and delivered a monthly dose of short fictions from a wide variety of authors.

In this case they're promising to deliver monthly story collections for a modest USD 2 price tag, much lower than the magazine-stand prices for the few specialty mags that survive to this day. Back in March of this year I noted that the economics of print paper distribution are horrible and getting worse, compared to e-book economics. The iPod is probably not an idea e-book platform, but it's much more widely available than even the popular Kindle and for reading short fiction it may serve well enough.

One of the things that steampunk celebrates is the "maker" culture (see for example Make Magazine) and in that spirit I celebrate Steampunk Tales' attempt to make a cross-century mash-up work. (Too bad I don't own an iPhone to read it myself.)

The party has been in existence for some time, largely known as a single-issue copyright deregulation group. However, the recent conviction of four operators of The Pirate Bay torrent-linking site has drawn attention to the party and its platform, though the site and the party are not linked. That platform calls for copyright deregulation, abolition of the patent system, and a reduction in Internet surveillance.

For whatever reason, the surge in popularity has, according to Wikipedia, moved the Party into the third most popular spot in Sweden in terms of registered membership. Engstrom, the likely seat-holder, claims that the party will use its seat to fight for intellectual property rights and personal privacy rights.

The Interstitial Arts Foundation (IAF), whose event I mentioned a couple weeks ago, is putting together a new volume of fiction writing.

The book, currently called Interfictions 2 is a follow-on to their successful publication in 2007 of a work of collected short fictions that exist between the large spaces of current mass-market genre definitions.

In the blog entry introducing the book, they break down the costs line by line and ask for sponsorship. You can sponsor an individual story, cover the online costs for the electronic companion to the printed stories, or cover the expenses associated with the production of the physical work itself (printing, typesetting, etc.). You can even cover the costs associated with sending out review copies. Since the IAF is set up as a US 501(c)3 organization your contribution is entirely tax deductible.

As I've discussed before, I don't think the sponsorship (or more elegantly 'patron of the arts') model is widely scalable. It's not going to replace mass market publication anytime soon. However, it seems pretty well suited to this kind of thing - a specific project, with a strongly dedicated audience. So go sponsor something already!

(I think I'll sponsor sending out review copies because I believe that publicity creates a virtuous circle. Thus this blog.)

This kind of thing is too good not to snark about, so excuse me for a moment. According to Matt Hartley's story in Toronto's Globe And Mail online site, the Conference Board of Canada got caught plagiarizing.

Why is this funny? Well, the reports (plural, three of them) that had to be withdrawn were supposed to be giving the Ottawa government advice on how to update Canadian copyright laws. So, yes, the Board copied its copyright reports. But wait, it gets better. Who did they copy from? Apparently, they copied from a Cartel lobby group, the International Intellectual Property Alliance.

It's entirely possible that Canada's laws could use an update. And it's further possible that the Conference Board has some good ideas for updates. But this kind of intellectual black eye isn't helping anything other than my schadenfreude quotient. Maybe this will serve as an object lesson for them.

Last week, the Copyright Alliance Education Foundation -- a nonprofit mouthpiece for the entertainment and software industries -- unveiled plans to spread its protectionist ideas to the nation's schools and libraries through the distribution of a curriculum titled "Think First, Copy Later." "Think First, Copy Later" and other intimidating educational materials were produced by the MPAA, RIAA, Business Software Alliance, and other content holders to scare students into believing that making copies is wrong.

Apparently "Just Say No" is still taken. Bummer.

[C]reators and innovators of tomorrow don't need more intimidation. What they need is solid, accurate information that will help them make smart choices about how to use new technologies. That's why EFF is launching the free, Creative Commons-licensed "Teaching Copyright" curriculum and website to help educators explore copyright issues in their classrooms. These materials encourage students to discover their legal rights and responsibilities — including how to make full and fair use of technology that is revolutionizing learning and the exchange of information.

The debates over copyright and technology -- whether they take place in classrooms, pressrooms or courtrooms -- should be based on facts, not fear.

"Feed Your Soul: the free art project" - free, downloadable art. Cardstock it, frame it. Just don't resell it.

The Hype Machine - an aggregator for blog discussions about music. Mostly it's a "play in browser" type experience but they link back to the original blog entries, which often have download links. In addition there are sometimes links for purchasing things you hear from iTunes or Amazon. I've been feeding my mash-up head seriously today. I'm on there as drwex.

No, I'm not talking about modern payola practices in radio again. I haven't bothered to keep up with it in the past few years but I'm convinced that it still goes on.

Instead I've had it called to my attention that the US House of Representatives has taken a step forward in passing legislation that would force traditional radio broadcast stations to pay the Cartel for playing songs on the air. If you've been reading along for the last couple of years you know that cable and Internet radio stations have been required to pay (often very high) royalties for playing tunes. But, historically, AM and FM broadcasters have not had to pay, since on-air play was regarded as free advertising.

The National Association of Broadcasters is out in force against this, calling it a "performance tax." They're in a tight spot already, given that radio advertising has taken a nosedive comparable to advertising in newspapers. It's not helping the Cartel's case that at least 50% of the new fees will go to improving their corporate bottom lines and not to artists at all. The NAB hasn't hesitated to point out how the labels have screwed artists in the past, either.

Expect a major floor fight and heavy lobbying by both sides on this one. Given the current state of the US economy I don't see how the broadcasters can afford to lose this one.

Last year I made a passing note of a product called RealDVD that was supposed to let you burn a DVD onto a PC drive, with copy prevention software intact. I was sort of dubious that the product would amount to anything.

Well, it appears to have amounted to (another) antitrust claim against the Cartel. This time, Real Networks is claiming that the MPAA and the studios - as well as the DVD Copy Control Association - have conspired to shut out Real and its product from any hope of copying DVDs. This is just the latest claim in what appears to have been a low gauge skirmish between the two parties for several months.

I suppose it would be interesting to hear the Cartel explain why, exactly, a program that maintains the DVD's inherent anti-copy features is a bad thing, other than "we didn't design it." But beyond abstract fancy I doubt this will amount to much of anything.

After my post about new art forms I got a pointer to this event: Interstitial Salon, June 11th in New York City.

I don't know anything other than what I've read on the Web about this Interstitial Arts Foundation - anyone have any contact or experience with them?

My first response is that, no, interstitial doesn't really describe what I was after - I'm looking for something that is more broad-brush and definitive of new forms, not something trying to fit itself into the spaces between existing forms. Still, this might be an interesting event. If you go, please send me a trip report.

In today's O'Reilly Radar column, Tim tackles the notion of how one might re-invent the book. Whether or not one thinks this medium is in need of re-invention there's no doubt that the book publishing industry is continuing to upheave, and possibly at a faster rate. If newspapers really are a dying publishing form does that mean that books are next?

And if so, does that mean we should wave bye-bye or should we attempt to re-imagine how large chunks of idea will be communicated from (or between) an author and a mass literate audience? Personally I think we ought to do that latter, regardless of whether or not we think the book will survive. As I've argued before, new art forms are emerging and creators need to embrace and extend the opportunities available to them. Existing writers should continue to break out new experiments, and O'Reilly points out ways that his print press has done some of that.

There is some question as to whether these new things are "books" as we've come to understand them, but let's leave aside labeling for the moment and consider them as a form of creative expression. To make these expressions in new media requires new skills - O'Reilly talks about things like "crowdsourcing" for example - and audiences will need to find ways to acquire, appreciate, and respond to these new forms.

So, no, I don't think Tim (or any one organization) can re-invent something as fundamental as the book. We have over a thousand years of evolution of that art form already in hand and that millenium won't be toppled quickly. But collectively, yes, I do believe that we can employ new technologies to re-invent the book. Right now I'm watching my boys delve into comics and devour graphic novels the way I did as a child. I'm certain that what they give to their children as "books" will be different than what I'm passing down to them, but it will be something additional, not a full replacement.

Also, don't miss the essay by Bruce Sterling on "Design Fiction" that O'Reilly links to. Yes, it discusses the origins of scifi writing, but it's about so much more.

I've been pursuing various links in my continuing quest to find easy ways to pay for music I like. I came across RCRD LBL.com which appears to be a curated online community for artists, labels, and fans to share and talk about music. They're obviously aiming at the hipper, more online-centric crowd; for example, you can follow them on Twitter and their "Genres" page is a tag cloud that I'd bet is derived by aggregating tags artists put on the uploaded content.

Currently, all their online content - including the legal downloads - is ad-supported. Much of it is distributed under Creative Commons licenses that allow people to reuse and remix the tracks for non-commercial purposes. They seem to be operating on a sponsorship model, rather than an impulse purchse model, so it's not precisely what I was looking for but it's clearly a very close neighbor.

Obvously ad-based/sponsored sites do better by getting more traffic so in a way I am 'paying' for music I found there by promoting them and I hope getting my dear readers to go to the site and continue spreading the word.

No, not this blog. We continue to trundle on in our small way. The lack of outraged emails telling me what an idiot I am is evidence that we're no longer much noticed. Copyfight issues, though. Those are everywhere. Two examples came across my radar this week.

Recipes are routinely traded (stolen) in the industry. Chefs visit, or send people to visit, competitors' places. Or they just out and out talk with each other about what they do, and as people will do they get ideas sparked by hearing or tasting or smelling or even just seeing what ingredients someone else has stocked their kitchen with.

It's true that there are new and innovative things coming out of kitchens all over the world, many from master chefs who are pushing the boundaries. One option for an innovator is to stay ahead of the competition by continuously improving. Another is to seek legal protection for innovations. But, really, Dorito casserole?

2. Over in the World of Warcraft world there's an ongoing flap among the mod writers and hosts. This requires a small amount of background so bear with me.

WoW allows people to write and load mods that change the game, even to the extent of replacing the whole default UI. Some mods are banned, but none of them are supported. To write a mod is a volunteer effort, and distributing a popular mod can incur significant hosting and bandwidth costs. To defray these costs, some mod writers ask for donations, or host their mods on distribution sites such as Curse Gaming. These sites make back their costs by showing people paid advertisements when they visit to download mods.

A heavy mod user can easily be running 50-200 mods and dependent components. And each time the game is updated there's a good chance that the mods need to be updated, too. So players return to the mod hosting sites over and over again. That's good for the hosting sites, particularly if they're getting paid by the page-view, but a really serious pain for players who don't want to be visiting mod sites - they just want to play the game.

There have been several attempts to make the process of maintaining and updating mods easier for players. For a while there was a program called WoW Ace Updater (WAU) which had some flaws but generally came close to the "push a button and update my mods" philosophy. But WAU couldn't survive its own popularity (the more people use you, the more it costs you) and got bought out by Curse, which re-issued it as their own client. Of course, that client sent you to Curse to get files and showed you ads that brought revenue to Curse. Plus it was buggy as hell and only ran on PCs (World of Warcraft runs on Macs and Linux machines as well).

To make matters worse, several mod sites have been the target of hacker attacks. Usually the hackers attempt to subvert one or more pages on the mod site to inject malicious code. When players visit these hacked pages, an exploit in the browser may be used to place a trojan on the player's machine. That trojan then dowloads further malicious code that may turn that PC into part of a zombie farm, or install a keylogger that permits the player's World of Warcraft account to be stolen and emptied.

Well, not if you're Curse. Wowmatrix didn't necessarily ask permission to redistribute mods - after all, it's not hosting anything - just downloading publicly provided files. Many mods are released with GPL or other free licensing. But some are not. And since Wowmatrix isn't showing you Curse's ads, people using it are not bringing revenue to Curse even as they download files hosted on Curse's servers.

So about a week ago, without warning, Curse started blocking Wowmatrix. This was timed to coincide with a big release of a Warcraft update and of course a lot of activity in the mod community. That timing didn't improve things, and the boards are full of people sniping back and forth at each other.

Recently, Wowmatrix appears to have taken something of a conciliatory tone. When you try to update a Curse mod they put up a notice inside the app informing you that Curse is blocking them and indicating that if the code is available elsewhere under a free-to-use license then they'll re-point their client to get it that way. Failing that, it's laborious point-and-clicking all over again.

Perhaps Wowmatrix learned something from the Pirate Bay conviction (about which I have nothing new to say, sorry). Or perhaps they really are just trying to make things better for the player community. It's not clear to me that what they're doing is a violation of copyright, so much as it is contrary to the terms of use under which Curse and its mod writers are making their mods available.

A handy all-in-one subscription link is available now. Generally these are scholarly journals aimed at researchers in the field, but I like to see more online journals opening up scientific publication.

Once upon a very long ago I wanted to hear a very specific song. I was at work, and was making a point to a coworker about how certain male and female voices went together. This duet was part of the point I was making, but I didn't have it at hand. Had someone said "Give me a buck and I'll give you a copy of that song you can play on your computer" I would have cheerfully handed over my USD and been pleased at the exchange.

Instead, one of my coworkers pointed me at Napster, and sure enough I had a copy of the song on my hard drive minutes later. I also had a large bucket of other music, none of which I paid for. Much of it was illegal, but not terribly interesting. I did, however, find that I could get tons of remixes, covers, and DJ mixes this way. That was interesting and I spent most of my time downloading things I couldn't have bought in almost any store.

In many ways this is exactly what I like about remixes - Skream has stripped out La Roux's beautiful and eerie vocals and laid them over some interesting beats and vibrato thrums. Gone are the insipid pop bits you get with the original. I want to own this specific mix legally and, ideally, have my money compensate the artists. But once again, there's just no way to do that. I can come up with two or three ways to get the tune illegally, but none that involve the kind of "I like that I want to buy it" commercial transaction.

Maybe it's a uniquely American conceit of mine to think that I should be allowed to purchase things I like. Maybe neither the artist nor the remixer intend for this track to be sold. But set aside that specific idea; much as I respect the art-as-performance-only, I think it's pretty commonly the case that musicians and DJs want to be compensated for their work.

So why the hell is it still impossible for me to do just that?

Staples' slogan is "That Was Easy." Now it appears that the ease of mass-mailing something to a large number of employees may have brought trouble not only to this company but to everyone - bloggers, journalists, critics, etc - who relies on the notion that truth is an absolute defense against charges of libel.

Nobody debates that Jay Baitler, an executive VP at Staples, sent out a mass email giving information about the causes for firing Alan S. Noonan. The ostensible purpose of the email was to remind employees to follow certain Staples procedures. But the cause for action was the inclusion in the email of details about the cause for firing that Noonan claims are defamatory.

Initially these claims were dismissed because MA law, like that of the US, provides "an absolute defense to a defamation action" based on the truth of the statement. This principle was established for the US in a 1964 SCOTUS decision known as New York Times Co. v. Sullivan. The situation is a bit complicated in the States because not only is there Federal law about defamation but many states also have relevant clauses in their constitutions and state law books. Even so, US District Court Judge Morris E. Lasker determined in his dismissal of Noonan's claim that MA law and US law were consonant on this matter.

However, Noonan appealed to the First Circuit, which recently reversed an initial upholding and instead allowed a claim to go forward for "actual malice" based on an obscure 1902 Mass. law. The three-judge panel reasoned that Noonan might be able to convince a jury that Baitler met a standard of ill will provided for in the law. Since Staples is a private company and Baitler is not himself a public figure, the argument is that different standards apply. In particular, the Sullivan decision refers to public officials and Noonan's lawyer is claiming that this decision does not have First Amendment implications.

That argument isn't convincing many people, and may still be reversed if the Circuit agrees to review the decision en banc. Meanwhile, news organizations are left scratching their heads over whether they can publish this story or whether that act of publication could itself bring a suit for "ill will."

Regardless of whether or not a paper or blogger could win such a suit, the mere possibility that it could be filed might chill publication of information, not least of all reporting on the incident itself. With so many newspapers teetering on the financial edge, the last thing they need is to spend thousands more on lawyers' fees.

I've written in this blog about the drug industry before, most emotionally in regards to the dangers to life posed by intellectual property restrictions in copying AIDS medication. I've also noted that drugs, which rely most heavily on patent protection, tend to lead to higher-quality patents than we see issued in the software field.

Patents, unlike copyrights, have not had their term of exclusivity repeatedly extended. Thus, drug companies are continually faced with the expiration deadlines of patents on huge money-making drugs. Sometimes they resort to frivolous lawsuits to keep generics off the shelf.

Other times, it seems, they just flat-out lie. In a sad story published in this week's Washington Post, Shankar Vedantam describes a series of studies that were silenced by drug maker AstraZeneca International.

The purpose of these lies of omission was to remove possible roadblocks to approval of a new drug (Seroquel) that was set to replace an expiring old drug. I find it inconceivable that the series of events reported here is unique. This is almost certainly indicative of a pattern of behavior that, in very real terms, put the acquisition of intellectual property - and the riches that flowed from that - above the health and safety of everyone.

It's ironic to me that I'm writing this note almost exactly four years after my first impassioned note about IP killing people. Seems we're slower to learn than I had hoped.

These days lots of people send me links to things they think are interesting and Copyfight-able material. I don't want to discourage people, but I can't possibly blog every one. Cory Doctorow I am not.

But I did want to use this video of interesting images from Google Earth to jump off into a bigger thought or more like a set of related questions. I'm sure there are dozens or hundreds of such videos, and this one combines many individual interesting 'finds' that people have discovered and posted. This one isn't unique but it's got me thinking.

It seems like we've got several things going on here, and we lack language for it. I feel like this is a new art form, but I don't know how to talk about it, much less what to call it. When someone makes art that's only visible from space because he KNOWS satellites will photograph it, and then someone else puts the image into a montage of deliberate art and found objects and natural-things-that-look-like-they-were-made-as-art, and someone else sets that montage to music with dramatic timing, gorgeous camera swoops, and almost narrative pauses built in... what do we call that?

Mash-up, the hip term of the day, seems so horribly inadequate. Plus the term is overused. I first heard it in reference to a style of musical mixing that involved taking two tunes and beat-maching them while intersampling parts like lyrics and vocals. That in itself is a fun art form, if somewhat copyright-transgressive. But what's the relationship of that to this? Not much that I can see.

And isn't there something essential to this art in that it's placed on the net for free distribution? Wouldn't it be something different if we saw it in a movie theater, confined to our seats? Would it be different yet again if it was played on the wall of a club and we were encouraged to dance to it?

I have a lot of questions, and no answers. But I'm convinced that if this isn't being taught in design schools right now then they're doing their students a disservice.

This is billed as pure tech, but its use in tracking material, possibly copyrighted material, are obvious: TinEye, a reverse-image search.

The idea is that you upload a picture to it and it tells you where else on the Web it has seen that picture. One obvious use would be sourcing material - I have this picture, who might it have come from - and another would be finding people who are using your images. Imagine a widget that would let you feed a full Flickr stream or Picasa album to it, rather than trying to upload one image at a time...

Enough people have sent me this one that I feel obliged to blog it, though I'm not sure I have anything new or original to say: "Through You" is a massive mash-up of clips from films found on YouTube. It makes for some interesting music, and the author goes to some lengths to give complete credits. Seven tracks - effectively a complete album. Pretty impressive.

Amid the mourning for the death of yet another paper, an interesting bit of back-of-envelope math.

First, though, the Post has it completely right - newspapers screwed the pooch and are killing themselves as a result. As good a paper as the Rocky Mountain News was - and by all accounts it was first class - it could not change the basic fact that people are no longer relying on newspapers for... well, "news." As the social concept of what it means to be up to date and informed changes, the medium has to change. Evolve or die.

Which brings me back to Nicholas Carlson's posting from a month ago in Silicon Alley Insider, in which he works out a rough estimate that it would cost about half as much to ship every New York Times subscriber a Kindle as it does to ship them the physical paper.

Which is not to say he's recommending that the Times do such a thing; he's just pointing out the economics of newspaper delivery are heavily weighted against the current model and continuing to push it is pretty likely to fail. See, for example, his column from today on "The Next 9 Newspapers To Die."

A new independent film documentary is starting to make the rounds of small theaters and informal showings. Who Does She Think She Is? explores the particular conjunction of female artistry and motherhood, particularly in modern American society.

As a group, women are under-represented in American galleries, shows, and in teaching about American art. Even moreso, women artists who are also mothers are all but invisible.

I have not yet seen the film, but it's been getting good responses from friends who have. Check it out, leave a comment with your impression.

To back up a bit: Blizzard makes World of Warcraft the insanely popular online multiplayer fantasy game(*).

The question raised in this case, which was just decided in an Arizona court, are whether Glider violates the DMCA by "circumventing protections" as Blizzard claims. It appears that all sides agree that Glider does not decrypt anything, hack anything, nor break any security. It uses the legitimate credentials of the player.

Timothy Lee, at ars technica, calls this "DMCA hairsplitting" and I think he's right. I further think he is correct in pointing out that Judge Campbell has made a decision with some bad implications. This gets a bit detailed, so bear with me...

Campbell drew a distinction between components of the game, thus: the bits stored on disk (called "literal elements") and the bits encountered by the game player during the course of the game (called "non-literal elements"). Part of the World of Warcraft client ensemble is a program called Warden that attempts to control how the client operates and can be accessed while it's running. Campbell decided that Glider did not violate the DMCA with respect to the literal elements, but because it attempted to evade or circumvent detection by Warden while the game was running, it did violate the DMCA with repect to the non-literal bits. Confused yet?

MDY's argument rested on the thesis that these non-literal bits were not protectable by the DMCA because they don't constitute a separate copyrighted work. If that's true it doesn't matter what interaction Glider and Warden have. Campbell rejected MDY's contention that the non-literal bits were too ephemeral, since they could be captured by recording software. That seems reasonable - all kinds of ephemera have been ruled copyrightable for various reasons. More interesting to me is MDY's contention that the ephemera weren't solely Blizzard's work. The ephemera are created in the interaction of the game and its many players.

This is significant as it describes pretty much every "Web 2.0" content-sharing site such as Facebook or LiveJournal. In these sites, too, the named software company provides a vehicle or environment into which users place their content interactively. For example, LiveJournal strongly resembles a blogging system in which individual registered users write postings on which other people add comments. Attempting to apply Campbell's logic to the blogosphere would be troubling at best.

Judge Campbell also agreed with Blizzard that violation of the game's EULA meant that the gamers no longer had a license to play the game. This is extremely troubling in that the logical extension of this reasoning is that any violation of a EULA involves forfeiting your license to that software. I don't know about you, dear reader, but I'm quite certain I've violated more than a few EULAs and am probably in violation of some right now. I don't think that means I give up my licenses to those software programs, nor do I think it means I'm infringing the copyrights of those programs - or at least I don't think it should mean that.

Finally, there's an additional twist in that Cambell ruled that MDY's founder Michael Donnelly, who wrote the Glider bot, was also personally liable for the infringement because he should have known that his and his firm's actions were illegal. Donnelly's good faith argument was rejected.

Lee makes the point that Blizzard is misusing the DMCA in this case. A law on copyright is not an all-purpose behavior-control mechanism. Sherwin Siy, Staff Attorney for Public Knowledge, made this case pretty clearly last year when PK filed its amicus brief in the case. Blizzard appears to have won on merits other than the DMCA and I hope they'll withdraw this claim before it has to be appealed up.

(*) Your humble author is himself a confessed WoW addict, who has spent more than a few hours battling botters and other in-game cheats. I'm not at all impartial on the topic, just in case you had any illusions.

First off, there's the #3 man at Justice, Thomas Perrelli, accurately described by CNET as "beloved by the RIAA". Not only has this guy been on the wrong side in the courtroom, he's fingered as instrumental in convincing the Copyright Board to strangle Web radio in its crib by imposing impossible fee structures.

Then there's the #2 man, currently slated to be David Ogden. If that name only rings a faint bell it's because you have to cast your mind back to Eldred v Ashcroft, the argument on whether retroactive copyright term extensions were legal. Sitting over there on Ashcroft's side? That's Mr. Odgen. For extra-bonus ick points, Ogden also was involved in defending the heinous COPA legislation, fortunately now dead and buried (but not forgotten).

The capper on this line-up of suspicious characters is Donald Verrilli, now up for Associate Deputy Attorney General. This specimen of legal acumen is front and center in the Cartel's jihad, having appeared for Viacom when it sued YouTube, for the RIAA against Jammie Thomas, single mother. And if we peer back a little farther, we find Verrilli's dirty fingerprints on MGM v Grokster.

So what does all this portend? Well, if you ask Julian Sanchez over at Portfolio.com he thinks it's a tempest in a teapot. He thinks they'll all behave and recuse themselves properly and just because a lawyer consistently goes to bat for a certain kind of client doesn't mean much about their professional views. Lawyers are paid guns, after all, and the Cartel's side has consistently paid well.

Declan McCullagh, over at CNET, is much less sanguine, pointing out that many of these cases are still ongoing (e.g. big lawsuits against YouTube) and further noting that Vice President Biden showed a great deal of hostility toward free use when he was in the Senate.

I'm on Declan's side. To the extent that someone has to set the tone of this administration in dealing with intellectual property matters, it's looking pretty grim.

I'm certain there will be lots more of these and I promise not to blog them, but I did want to point to one amusing remix of Christian Bale's f-bomb laden tirade on the Terminator 4 set.

This is what we do now - we parody it on YouTube. There are also apparently remixes of the remix, using the audio track with different visuals. I'll leave it to you to find the one with Legos.

No, that's not "inverse" as in backwards. It's "rendered in verse" as in "poetically." Or at least, in rhyming couplets.

Back in 2006, Yehuda Berlinger put up a rendition of US Copyright Law in verse form. Now he's added the UK's copyright law - though he does point out that there are upcoming changes, which may require him to re-verse.

Jeph, the writer of the webcomic "Questionable Content" has a long and thoughtful post on his LiveJournal about the unfortunate rift between comic artists who are working for print syndication and those who are working for online publication.

Jeph starts from the blog post by Neil Swaab that paints online comic artists as merchandisers first and artists second. It's true that most people who are living as Web comic artists do so not by selling the comic itself, but by selling associated merchandise.

Swaab seems to be making a bucket of broad assertions, each of which Jeph deals with in turn. Jeph points out that a comic artist can easily farm out the merchandising and online store maintenance, probably at less headache than dealing with print contracts and syndication details.

Further, he asserts that QC is making enough from advertising to cover his server and office costs. This is interesting in that ad revenue has definitely declined in the past year or more, and QC is far from a low volume site. Indeed, more traffic should help an ad-supported site, but it does also drive up bandwidth and server costs.

The majority of the post deals with the ideas of making Web comics pay-subscription, sponsored, and donation-driven. All of these are familiar ideas to Copyfight readers and there are a few examples of each of these models being attempted in the online comics domain. In my observation most places use a combination of these methods, but mainly subsist on merchandising.

Which is not, per se, bad, but points out once again that we're not making progress in figuring out good replicable business models for this stuff. What Jeph seems to appreciate most is his fans, and the need for artists who want to make it in this medium to adapt. Amen.

Shirkey has a few specifics and a few generalities in his "Year Ahead in the Media" piece on guardian.co.uk. Nothing hugely surprising - more newspapers will stop printing, magazines (specifically specialty publications) belong online, DRM for television shows is a disaster, and print-on-demand for books will flourish.

Check back in 12 months and see how right he was.

A friend of mine who's a fairly rabid Nine Inch Nails fan noted that Reznor has recently put out a lot of raw video footage from the current tour onto BitTorrent. This is in addition to anyone's ability to get a legal download of the entire new album just by visiting nin.com and giving a working email address.

Back in '07 (I have to stop writing 'last year' every time I go back into the archives) I noted that Reznor was urging people to "steal some more". My guess is that he got tired of waiting and wants to see what people will make with this material.

Everyone else is writing about Apple's iTunes music store going DRM-free. Which is, I admit, an interesting move. It's also interesting that they're moving to a 3-tier pricing scheme, after about six years of the Cartel nagging them to break the 99-cents-for-anything barrier.

But like I said, everyone's writing about that. So instead I want to blog about something else. I want to blog about how Roger Ebert, who makes no small amount of money himself from copyrighted works, ended up writing

Don't the copyright owners realize they are contributing to the destruction of their property by removing it from knowledge?

Go ahead, I'll wait...

Right, so the thing that makes this Copyfight material is that this indie film, which delighted one of the country's best-known film critics, can't be distributed because it uses eighty-year-old recordings. According to Paley's own blog entry the original request from the copyright holders was for $220,000. That may not be much for a major motion picture, but for a self-made indie film it's a show-stopper.

As questioncopyright puts it, this is ridiculous. Even at the now-reduced price of $50,000 the owners of the copyrights are "forcing artists to make creative choices based on licensing concerns rather than on their artistic vision." This is not hyperbole - as Paley describes in the interview there, the specific music she chose was integral to the film's production. Animation sequences were created around specific songs, and that's part of what Ebert found attractive.

By any measure of artistic judgement, Paley has created a wonderful work. But she's never going to be able to turn that work into a commercial success. Because even after she finishes paying the 50k (on top of $10,000 in lawyer fees so far) she'd be facing a fee schedule that would in effect make sales of the film a losing proposition. By her calculations if she somehow managed to take in $1,000,000 in theatrical receipts she might get between $30,000 and $80,000. Which brings me back around to Ebert's original point - by being greedy and grasping, the copyright holders are destroying their own property.

My guess is that it's safe to say you've never heard (or even heard of) Annette Hanshaw. She was, apparently, quite a remarkable singer some 80-90 years ago. But she's gone and largely forgotten. Now imagine if a film built around her songs had been distributed, and had gotten even moderately popular - would you regard that as a sales opportunity? A chance for a revival, a reissue perhaps? I certainly would. Remember what Belushi and Ackroyd did for much better-known blues artists by using their music in the Blues Brothers films?

Apparently I'm a bad person to hold copyrights because I see things this way. Apparently in the modern way to do things is to create "a barrier between artists and audiences, prohibiting access rather than facilitating it" as Paley says. This reminds me of the massive effort in 2007 to strangle Web radio in its crib by imposing impossible fee structures.

To her credit, Paley isn't willing to give up. She's put together a distribution plan that revolves around creating a limited number of promotional copies and then uploading those to archive.org under some kind of Creative Commons or similar license. From there, she's going to make money by giving it away, and profiting from related things like donations, sponsorships, ancillary products. Shades of Cory Doctorow's "Giving away my books is selling the hell out of them."

Paley admits she's probably never going to make back the money she's invested in this project. She's actively looking for sponsors, legal help, and hoping that all the various rights holders will agree to the 50K plan and that she'll be able at least to repay the loans she's taking out to make this all happen.

The PDF of Judge Feess' ruling on the motions for summary judgment by Fox and Warner Brothers can be found online.

I was surprised at how readable-to-a-layperson the document is. It appears that Fox's claim is nothing new, that an option for buying out Fox's rights existed for years and was never exercised, and finally contains a very interesting footnote on testimony not given and why a certain lawyer's advice may have been detrimental.

In a column published by the NY Times this week, David Streitfeld puts forth the proposition that the highly available, highly interconnected nature of the online book reselling market is killing book publishing. New-in-print brick-and-mortar retail has been under pressure at least since Amazon started its first Web site. The economics of book publishing have also been sagging since Reagan-era tax reforms that made carrying inventory unprofitable, and the costs of paper, ink, and transport keep going up.

But I had not considered that the ease of finding a cheap used copy would have that big of an impact on publishing and book retailing. Used book search engines are easy to find, there's Ebay/Half.com, and even Amazon puts competing reseller links on the same pages as its new book listing. So with all that, why would anyone pay retail?

It's not too far from the question that the music business faced back at the end of the 90s when Napster boomed - given that you could get music for free, why buy? The record labels have spent most of the last decade struggling to come up with a version of what I call the "bottled water" solution - given that we have some of the world's highest quality tap water essentially for free, why do we pay so much for water in bottles? Somehow we've been convinced it's worth paying for, and there's no reason to think that consumers of music, or books, couldn't be similarly convinced.

Along the way I'd also like to be convinced of the original thesis of the column. The idea that book reselling is killing new book publishing is an interesting theory, but sadly it's put forth here without any supporting data.

Microsoft gets the faceplant this time, but it could just as easily have been iPods: Gizmodo reports (as do many other sites) that Zune 30MB models have all started locking up and requiring a hard reset.

This should be a clarion warning that using proprietary hardware or software (DRM) to restrict peoples' ability to manage their legally owned content is a bad plan. We are all at the mercy of whatever bugs and bad business plans lie behind these locks.

(I'm as guilty as anyone else, sad to say. I use iTunes for storing and organizing the files ripped from my CD collection, and have bought a couple dozen tracks through their store. I try to buy the un-DRMed versions whenever they're available, but I'm still at the mercy of the program.)

I just got my panel schedule for Arisia 2009, one of the big local science-fiction cons. As in past years there will be panels on things of interest to fans, including intellectual property. At the moment it looks like I'll be on a panel Friday night on the "Future of Intellectual Property" that will also have Richard Stallman as a participant.

That should be interesting. The last time Stallman saw me he had some unkind words to say, but it's not entirely clear he remembers who I am.

Where a case gets heard can be as important as what's argued in court. Two items this week are bringing this lesson home:

In the first case, the RIAA got its wrist slapped for pre-emptively trying to appeal in mid-trial. As Nate Anderson points out, you can't generally do that without the judge's permission, and in this case Judge Davis is not in a favor-granting mood.

Part of the issue is that Davis presides in the Eighth Circuit, a district where the courts have held that "actual distribution" has to occur for a copyright infringement case to proceed. Other jurisdictions have held differently, but for this case (against single mom Jammie Thomas) the RIAA has to abide by that precedent.

Meanwhile, down in Texas, law.com blogger Zusha Elinson notes that the CAFC has issued a ruling that may make life easier for patent defendants to get cases transferred out of the Eastern District of Texas. This particular venue has been chosen by plaintiffs who see the judges there as more likely to be sympathetic, even though the District may be far from the defendants' homes.

The CAFC issued something called a writ of mandamus, a document compelling a government official to perform his duties properly. In this case, the Court took to task Eastern judge John Ward for his refusal to allow a venue transfer for Lear Corp v TS Tech. Lear had sued in the Eastern District, hoping for a favorable venue; TS Tech wanted things moved up to Ohio, which would have been more convenient for them.

Because the CAFC is a superior authority in patent cases, this writ and its supporting arguments can be used by other defendants who feel the Eastern District is too plaintiff-friendly and can bring good arguments for a change of venue. This isn't a pure "get out of jail free" card - suits will still be heard in other venues but clearly there's strong feeling that the merits of particular cases are weighted differently depending on the venue in which it's heard.

It's that time of year, when every charitable organization and good cause is asking people for donations. Earlier this year I mentioned the Comic Book Legal Defense Fund's efforts to protect the rights of adults to view creative material, even if it is a bit edgy.

CBLDF is asking authors, retailers, and other creative types to help as well:

If you're a creator or publisher, you can also donate some of your time
to the Fund by signing for them at conventions and events, donating
signed copies of your work, or something even more creative. If you're
a retailer, why not host a CBLDF fundraiser at your store or sign up for
retail membership?

I am what you might call an amateur comics geek. I don't subscribe to titles when they appear in issue form, but I do love my collections and graphic novels. And I'll defend to the death the proposition that Moore's Watchmen is hands-down the best graphic novel, ever.

The story is complex, multi-referential, and darkly thought-provoking. It deconstructs not just comics themselves, but the entire notion of a superhero, while reflecting on the real world darkness of the near-apocalyptic parts of the mid-1980s. It's the kind of thing that innately resists the simplifications and streamlining that come with moving comics to the movie screen.

Back in May, Neil Gaiman blogged about his "law" of comic-book movies, which is that a comic movie is better to the degree to which it hews to the look and feel of what people like about the comic. You can yank the story around a lot - comics readers get that - but if you mess with the iconic elements of the characters and setting then your movie is going to... well, suck.

So a lot of people have been anticipating the upcoming Watchmen movie with more than a little trepidation. It would be so incredibly easy to make a movie of this story that sucked, and disappoint us all. Up to now, it appears Warner may have learned something from their previous flops (Catwoman, anyone?) and their spectacular success with this year's Dark Knight. The pre-release info, and even the recent trailer, have had the look and have raised expectations, including my own.

Which brings me around to why the heck am I blogging in Copyfight about my peculiar media obsessions? Well, it looks like the film may not get released after all, and it's down to copyright issues.

Last week, an LA judge agreed with Fox that it owns copy rights in the material, and essentially cleared the way for Fox to block release of the movie in March. The rights are somewhat convoluted since it appears that what Fox owns is not the Watchmen material itself, but rights to distribute a film of that material. This stems from a deal in the late 1980s, after which Fox dropped the idea of making the movie but apparently retained certain interests.

Right now everything is very preliminary. The judge's decision came as something of a surprise, since he had originally scheduled a trial on the merits to start in January. I imagine that Warner will pursue a dual strategy of appealing this order while at the same time trying to get some kind of deal with Fox. My guess is that they'll offer Fox a slice of the pie and call it cheaper than potentially pushing back the release date.

Ars trumpeted the headline as "RIAAStock 08 Peace & Music" but I think that's a bit overblown. Still, it's a surprising turn of events.

After years of grinding trench warfare and tens of thousands of lawsuits, the RIAA has worked out a deal with the major ISPs to have them do the enforcement, voluntarily. ISPs will get notices and, using their own internal data, map the target IP address to a user. That user then gets a "knock it off" warning from the ISP. Penalties are coming, make no mistake, but they're not here yet. CNET posted a copy of the letter that the RIAA will send to ISPs.

Anderson's story on ars highlights the win-win in this deal. ISPs win in that they see P2P sharing as a major drain on their bandwidth. Cringely had a thing or two to say about this back in November, essentially pointing out that bandwidth costs are dropping fast and by establishing caps now - in a mode of presumed scarcity - the ISPs set themselves up to be able to charge more for raising the bandwidth caps in the future.

The RIAA wins by extracting itself from a public relations quagmire. In theory they can still go after people who ignore notices, but they're much less likely to be embarrassed trying to sue people in housing projects and suchlike. They claim they'll continue pursuing cases already underway but I am now more certain than ever that they'll just drop suits that they see as losers anyway, like the Tenebaum case. Furthermore I'll bet they'll use this agreement as an argument for getting Nesson's countersuit mooted.

Anderson notes (but doesn't point to) a supposed study by "UK media lawyers Wiggin" in the UK that purports to show that people are less likely to share files if they know they're being tracked. I went and looked at the Wiggin news articles section (presuming he means the entity known as "Wiggin LLP") and couldn't find anything to support this claim. Even if so, Wiggin is a law firm that represents the Cartel in the UK. Issuing a finding in support of their clients isn't all that surprising, but I wouldn't treat it either as news or good science.

Over on ZDNet, Sam Diaz sounds a warning note that ISPs would do well to heed: taking enforcement action based on an unsubstantiated third-party allegations could put the ISPs in the position of maintaining blacklists or even getting themselves sued by irate customers. Last year Comcast got itself sued for traffic-shaping. I can imagine many scenarios where the RIAA's mistakes could lead to ISPs having to defend themselves in front of judges.

EFF has an amusing song/cartoon riffing on the "12 Days". It's a fund-raiser, obviously, and it references several of the things Copyfight cares about.

Learn more about this video and support EFF!

Neil Gaiman pointed to Gever Tulley's 2007 TED talk on "5 dangerous things you should let your kids do". As a parent who wrestles almost every day with what I should and should not let my kids do I found the concept interesting.

And there, near the end of the talk, Tulley just flat out says "teach your kids to break the DMCA". Because it's a law that attempts to limit how we can interact with the things that we own. True, that. Unfortunately, TED talks are highly compressed presentations so Tulley doesn't go into any sort of detail, nor does he appear to have followed up on the idea publicly.

Sorry for the last-minute-ness of this. I just got a mail saying the event has moved to a larger venue to handle the bigger than expected crowd:

Creative Commons' Birthday and Salon NYC
Come celebrate CC's 6th Birthday and our December Salon
Host: For Your Imagination / CC
Date: Tuesday, December 16, 2008
Time: 7:00pm - 10:00pm
Location: For Your Imagination Loft
Street: 22 W. 27th St., 6th Floor (between Broadway & 6th Ave.)
City/Town: New York, NY
Contact: Fred Benenson
Phone: 9178267819
Email: fred@creativecommons.org

(I'm told that if you are very hip, which is to say not me, you can RSVP on Facebook at http://www.facebook.com/event.php?eid=50435427568 )

Opinionated Canadian blogger Scott Feschuk has a column lampooning AC/DC for striking an exclusive deal with Wal-Mart.

The aging Oz hard-rockers are hardly the first to strike this kind of deal. Given how influential big-box retailers have become in the dwindling world of physical platter sales it's not a big surprise that artists would go where the sales are. Still, the parody struck me as funny.

What we sometimes forget is that the labels also own the public image of that artist. Not just the "how do you look" but also "how do you dress on stage" and "how do you talk to the media and promote yourself". And sometimes "how fat ARE you, dear?"

The issue at the moment centers around Ms Palmer's appearance in the official video for her single "Leeds United" from her new album Who Killed Amanda Palmer? If you watch the video or have read any of the discussion about this you'll know that Ms Palmer shows a lot of bare belly in the video. And she does not have an anorexic or bodybuilder's belly. She has a pretty normal "fat little belly" - as she herself describes it. And she's mostly OK with it.

So when Roadrunner Records suggested that the video be digitally altered and that Ms Palmer engage in some choice editing to appeal to "guys" whom the label seems to think it knows... well, you can imagine THAT didn't go over well. In fact, it's grown into quite the contention, with Ms. Palmer's fans standing deep and strong behind her refusal to give in and commercialize and popularize herself.

According to the blog entry linked above, Amanda Palmer has already sunk some USD 80,000 of her own money into this album and tour, money she doesn't expect ever to recoup from the label. So when she asks the label to drop her (which is to say, free her from the constraints of her contract and the odious sexism of her current a&r guy) she has more than a little bit at risk. I'm rooting for her.

One of the interesting things about this story to me is that it's got at least two parallel threads. On the one hand, there's a significant fan response to the overt sexism and narrow-minded definition of what female performing artists' bodies should look like. Much of the fan 'rebellyon' involves Palmer's fans posting pictures of their own happily shaped bellies, often with (ahem) expressive sentiments written on them for the camera to record. Palmer herself is up front about her desire "to look HOT" (emphasis in the original)

She clearly recognizes that part of what happens in a creative performance is a level of sexuality and attraction and like in every other business, sex sells. She just wants to be in (more) control of what that sexuality means in her own performances.

On the other hand, there's a discussion to be had about the degree to which creative performers are forced to give up either financial incentives or creative control. For example, Emma Bull's blog has a nice compare-and-contrast of Palmer's situation with that of the artist Issa (formerly Jane Siberry) who is trying to make a go of it on her own, offering her new album for download at whatever rates the downloaders want to pay. Bull is herself both a published writer and a musician with released CDs, so she has something of a first-hand perspective on the situation.

Full disclosure: I've never met Ms. Palmer nor do I have much of an opinion on her artistry or her physical appearance. However, friends of mine performed with her and are pretty opinionated on the matter. You can see them doing the horn part for her "Leeds United" performance at the Paradise club in Cambridge, MA.

Neil Gaiman has a long, and cogent discussion in his blog today about the Christopher Handley case.

I generally agree with what Gaiman has written. I think popular speech doesn't need defending. It's the edgy, unpopular, icky stuff that needs defending because that's what people will attack. And although Copyfight is not a free speech blog I do passionately believe that much great art is created out on those icky unpopular edges and if we do not defend the rights of people to be patrons of that art then we strip away a lot of what is of value in protecting the intellectual property of creative expression.

While researching the previous entry I came across this item: European regulators put out a report today accusing drug manufacturers of costing consumers EU 3 billion by using patent lawsuits to keep generics off the markets.

Back in January, the EU Competition Commission staged raids on at least nine major drug companies, seeking evidence on restrictive business practices, and then another round of "surprise inspections" earlier this week. There will also be public hearings today.

The report so far is preliminary, with a final draft due in mid-09, with language like this:

a variety of tactics are used to delay or block the sale of generic drugs, including filing large numbers of patents for the same drug, suing generic companies, settling patent disputes and intervening in national procedures for generic-drug approvals.

About three years ago, I wrote about situations (AIDS drugs in particular) where patent protection was having the effect of killing people. It's sort of sad that we've made little or no progress in that time.

On Friday, the EPO (European Patent Office) upheld an earlier decision rejecting a patent application from the University of Wisconsin-Madison' Alumni Research Foundation in the US. The patent was for stem cell technology, and it was rejected because the process disclosed in the patent apparently required the use or destruction of human embryos.

I was curious about this because, so far as I know, there are no grounds in US law for rejecting patents on ethical or moral bases. Certainly US defense contractors get patents on all kinds of horrific killing technologies and I believe there was at least one patent on the electric chair.

Unfortunately, the US media are not terribly informative on the background for this latest patent rejection. According to Kevin Grogan's story in PharmaTimes

the EPO already has a ban in place on the patenting of inventions “whose commercial exploitation would be contrary to public order or morality”, and specifically prohibits patents on uses of human embryos “for industrial or commercial purposes”.

In this blog I spend most of my time on the production side of the issues - talking about business models, distribution, artist compensation, and so on. Once in a while it's important to remember that there are also complimentary rights - your right to own materials produced by creators, for private viewing. Making or buying legal copies of creative works is an essential part of the process - all the author rights in the world don't mean jack if nobody can buy what's created. Sometimes we need to remember those rights because they get attacked.

On Monday of this week Neil Gaiman blogged about a particular incident - a case being defended by CBLDF, the Comic Book Legal Defense Fund.

In this case a person, Christopher Handley, is being prosecuted for possession of manga (comics) that are asserted to be obscene. Handley is facing up to 20 years for possession of material that is... um, let's be honest here, it's pretty much exactly like stuff you'd find on my shelves. I don't collect manga, per se, but I do collect Gaiman's works and some of Alan Moore's more disturbing output.

The problem seems to center around images that appear to be young children. It's pretty hard to determine the age of a character in a fiction, unless the author explicitly states it. So the prosecution is based purely on the appearance of an image. Subjective judgement, anyone?

As the parent of two young children, I'm a bit sensitive to the actual use of real children in visually explicit material. I don't think children can consent in any meaningful way, and I don't think they understand the adult implications of explicit or sexual acts. Real people - children and adults - need protection against unscrupulous content producers of any sort who would take advantage of or coerce them.

But that's not what we're talking about here. We're talking about made-up images of purely fictional people. I think it's important to defend the right to own, and the right to view, legally obtained copies of material against overreaching laws.

Almost a year ago, Eric Bangeman wrote a piece on ars pointing out that the Cartel has somehow managed to avoid noticing that students at Harvard share music files, too. Despite its widespread and very public campaign of suing its under-25 customer demographic, the RIAA seemed unwilling - some would say scared - to take on Harvard. Bangeman, along with others, noted that the Cartel's attack dogs seemed to be taking on easy targets.

Bloggers attributed this 'oversight' on the RIAA's part to the presence at Harvard of the Berkman Center for Internet & Society, an organization noted for its outspoken opposition to the Cartel's jihad¹. Harvard also hosts a world-class law school, whose students have taken on a number of high profile causes on a pro bono basis over the decades. If your strategy is to deploy enough high-paid legal muscle that your opponents are intimidated into instant surrender then it makes sense to avoid a place with resources like these.

Scroll forward a year and the RIAA has yet to bring a case against any of Harvard's file-sharing students. And it appears that law professor Charles Nesson both got tired of waiting and found a case he could support. The fleet, as they say, has sailed.

RIAA v. Joel Tenenbaum may become the Cartel's English Channel. As you'd expect, Nesson isn't just trying to defend one student. He's attacking the foundations of the RIAA's entire campaign, as well as the constitutionality of the laws on which it is based. He's filed counterclaims, and is seeking to have the RIAA itself named as a defendant.

Techdirt's write-up on this is dripping with delicious anticipation.Mike Masnick notes that Nesson has a lot of caselaw and is using the RIAA's own words against them. But we're still at the very earliest stages yet. My guess is that the RIAA will drop its case against Tenenbaum and attempt to get the countersuit mooted rather than try to defend on the merits.

¹Full disclosure: Corante, the organization that hosts this blog and many others, has had close professional relations with the Berkman Center for many years. I have no personal affiliation with Berkman, nor is there any influence from that organization on this blog.

Pending approval by the court, it appears that Google has worked out a deal with US book publishers. Google published an announcement of the deal in its blog and the story has been in most of the major media.

The deal is primarily focused on books that are still under copyright, but no longer in print. Books that are in print are still to be sold as before; books that are out of copyright are still free for anyone to use.

For the big chunk in the middle, John Timmer of ars technica points out that the settlement seems to have something for everyone. Libraries get free access to the entire contents of such books. Big users and private individuals can now pay fees to get online access to individual books.

Google itself becomes a huge book-seller, with the fees from these online accesses, as well as USD 125 million in start-up money, flowing to a new entity, the "Book Rights Registry." This entity would in turn remunerate part of the fees to copyright holders, in much the way that ASCAP handles rights payments for musical works. In effect, copyright holders will make money on books that they aren't publishing, which is strangely like getting paid not to grow crops because many of these publishers deliberately let these books fall out of publication and never bothered to digitize them, even as they sat on the rights.

This also bears on orphaned works since the existence of the Registry and its potential as a cash source should cause people to step forward and reclaim abandoned copyrights. Definitive copyright ownership is a boon to many people; for example, those who want a simple way to find such rights holders and negotiate other forms of reuse.

All parties in the settlement seem to be at pains to emphasize the benefits to individuals - readers - who will be able to build their own libraries of books that otherwise they'd have to spend hours scrounging for on places like Abe Books. In addition, the large-scale digitization of such works might give a boost to print-on-demand enterprises.

I'm not terribly inclined to sign up for another service and was wondering if anyone had any experience with these guys?

They apparently have software that scans the music on your disk and adds songs it finds there to your online collection so you can stream them from the lala site into any browser. They claim to have licenses for about 6 million tracks, which is a pretty small sample when you consider the universe of all songs, but hey they're new.

You can also pay to add more songs. It appears to cost 10 cents for unlimited streams and if you buy the MP3 that 10 cents is credited toward the price of the download, which they claim is 89 cents and all DRM-free. They also have links to get you to purchase conventional CDs that they're reselling from labels and artists - prices on those are variable, as you'd expect.

There are the usual sorts of social features, where you can see and play samples from other peoples' song lists. They are also promoting the Twitter-like notion of "following" another person and discovering new music by watching what the followed person adds to his or her collection. There's also a points system for getting new people to sign up, getting them to follow you, and so on. Right now the points seem to be a pure popularity metric (they call it "influence") and don't seem to translate into anything beyond ego-boo.

I'm tempted to file this under "weird IP stories you don't expect to read" but I don't have a category for that.

Buried at the very bottom of the AP story on the Feds busting up the Mongols biker gang appear the following paragraphs:

U.S. Attorney Thomas O'Brien has asked for an injunction that would seize the Mongols' trademarked name. If the order is approved, any Mongol would no longer be able to wear a jacket displaying the gang's name or emblem.

"It would allow law enforcement to seize the leather jackets right off their back," O'Brien said.

Seth Godin has a post on his blog warning that maybe art should be - or must be - for its own sake, or for the sake and enjoyment of the artist creating it.

Godin is arguing against the idea that you should take what you love and turn it into a business. This love-into-business notion is circulating in a couple of forms now, all of which proposing to tell you how to spend your time "monetizing" your blog or hobby or avocation, whatever it happens to be. If you Google the phrase "fire yourself" you get over 1.2 million hits.

I'm torn - on the one hand I think Godin has a point. Most people aren't going to make a penny off of whatever it is they love. There just aren't that many people wandering around with cash in their hands looking for unemployed bloggers to "monetize." On the other hand, I think it's critical that we do come up with new business models and have people testing them out because it's so screamingly clear that current models are BA-ROKEN.

(Interestingly, Godin's blog entry from today is about the evolution of marketing, a key component of monetizing one's art. And apparently he's got a new book coming out on the topic.)

A friend who is trying to figure out how to make something like a living as an independent writer/creator pointed me to the first entry in what promises to be a blog series.

The authors are somewhat known as authors and creators themselves, and the series will culminate in a business-model paper. Both the paper and the blog entries are released for noncommercial use under a CC license.

Randall Munroe, author of the xkcd comic, and one of the few people I know who is making a living through his Web comics, has had enough of DRM.

His most recent published comic contains a simple four-step "you will be a pirate anyway" argument. Or, if you don't like it, demand DRM-free content in the first place.

Apple was finally granted a patent, for which it first applied in 1999, on the user interface construction that has come to be called the "dock".

The patent calls it "a userbar" but Apple's own documentation calls it a dock (this image also comes from Apple's site) and that's the term it's generally come to be called. Including all the multitude of reimplementations of the concept. I'm aware of dock implementations for Windows and for Flash applications and there are probably others. Yahoo even has a "widget dock" (on which it has a patent).

Not everyone loves the dock, though. Ex-Apple human-interface guru Bruce Tognazzini published a column way back in 2001 harshing on the dock's (lack of) usability. Still, the widget remains fairly common in a lot of interfaces. The question is whether that'll still be true after Apple decides what it wants to do with this patent.

Given the early filing date it's not going to be trivial to find prior art if people want to challenge this patent. The amount of non-patent prior art cited is small, but there are an impressive number of related patents cited. (Including, to my great surprise, my own patent.) Scanning those it appears that Apple has at least touched on all the related work I can recall from back then.

In a not-at-all-surprising decision, Judge Patterson has ruled to block publication of the print version of Steven Vander Ark's "Harry Potter Lexicon."

The judge's decision noted that the proposed Lexicon

copies distinctive original language from the Harry Potter works in excess of its otherwise legitimate purpose of creating a reference guide.

Some reports note that there may be an appeal of the decision, or the publisher may use the decision as a guideline for which material was objectionable and could be excised to result in a Lexicon that could be published and stand up under fair use scrutiny.

I've been so busy with the mess on Wall St that I totally missed Apple's threat to close down iTunes if royalty rates went up. There were several proposals on the table, including one to lower fees, which are formally known as "mechanical royalty rates". Jacqui Cheng on ars has a nice summary of the various posturings that went into this.

So, in theory, everything stays the same through 2012. At least in the US. Things in Europe may be a bit more unsettled. According to a PCWorld story, Apple is facing a challenge to its use of DRM to encumber downloads in the first place. At the moment, this move only affects a small country (Norway) that isn't really significant to Apple's revenue. Even if they lose the current court case they could simply stop doing business there. The question is whether the rest of Europe get behind this idea.

If Apple gets a ruling it doesn't like that applies across the entire EU that could force some kind of change, with likely echos on this side of the pond. I don't really expect that, but also lost in Monday's news was the story about Wal Mart shutting down its own music download service.

The problem is that they didn't just take down the service for buying new music - they're shutting down the DRM servers. So if you bought music locked into Wal Mart's electronic box you are out of luck. You may be able to burn your tunes to a CD and then re-rip them, but probably only if you do it before October 9.

Cory makes the point emphatically when he points out that the current scenario is, roughly: buy DRM-encumbered music legally and get screwed; acquire illegal but unencumbered copies and life is good.

My guess is that if download services continue having these problems, Apple will have a lot to worry about before the next royalty rate review rolls 'round.

Once again I'm finding myself trying to make sense of something and hoping others can help me out.

That name sounded familiar but I hadn't heard it recently, so I went back into the archives and found a Nate Anderson piece on ars, from back in April, that talked about this proposed legislation. Anderson does a good job of summarizing the problem that the bill is trying to solve - if you can't determine the copyright status of a work, what can you do with it? And if you do reuse it, what protection do you have from being submarined?

The idea in this bill is to set up a system of rules that an artist would need to follow; if those rules are followed and a legitimate copyright holder later emerges, the re-using artist can't be sued into oblivion. In effect we get a 'safe harbor' for innocent infringement. The re-user doesn't get free access - he still has to pay license fees to the late-emerging copyright holder. But he would be immunized from large punitive damages.

So, what is causing the Illustrator's Partnership to use such harsh language? They claim that the bill "goes far beyond current concepts of fair use" and "has a disproportionate impact on visual artists." They use further alarmist language about "forc[ing] artists to risk their lives' work" and they go on and on at some length. Are we sure Jack "Boston Strangler" Valenti isn't writing this stuff from beyond the grave?

Certainly some freelancers are feeling that this reaction is disproportionate. For example, Adam Hutter of the Fractured Atlas Blog characterizes the response as "panicked hand-wringing". He also points out that much of the reaction is factually inaccurate and provides links to the bills for people to read themselves.

Rangnath's blog entry also points out how some of the bill's language has changed in direct response to concerns that were expressed when the bill was first introduced. It's just not clear to me why these changes haven't averted the apocalyptic verbiage from some quarters.

I got a pointer to a forthcoming program from Real, to be called RealDVD, that is supposed to be the first legal way to rip DVDs to hard disk. It's kind of that, kind of not.

Of course, we've had DVD rippers forever; the problem is that they're technically a no-no, since they tend to strip off the copy protection. The question of whether or not this is a legal backup copy of software you legally own is best left for another time. RealDVD leaves the copy controls in place by, effectively, locking your copy to the hard drive onto which it was burned. All the bits from the DVD platter are transferred, once, and no further. At 5G+ per burned copy it's still pretty huge and even with the plummeting prices of large thumb drives I can't see a whole lot of value here.

PC World previewed the program as well and didn't come away much more impressed than I.

This isn't another political song remix, or even a political song parody. This is about the use of (usually American pop) songs in political ads and campaign appearances by candidates for a political party. In this case, McCain for the Republicans.

First off, we have the candidate's use of the song "Barracuda" by the band Heart, even though the band has asked them to stop. Sorry girls, that's what you get for entrusting your license rights to a blind agency like ASCAP. All the McCain camp has to do is pay the fees and away they go, right?

Well, yes, it'd be nice if they did pay the fees. According to TMZ they might not have cleared every song they used. I mean, what remixer goes through all that trouble, right?

And, really, what's an artist going to do, sue John McCain? Well, um, yes. Jackson Browne is suing McCain (and the Ohio Republican party, which apparently produced the ad in question) for using Browne's music without permission.

According to the LA Times blog post McCain has "a track record of using music without permission." This is all probably just a tempest in a teapot, but it's pretty funny from where I'm sitting.

Disney is famous for getting copyright-term legislation passed that extends protection on old materials and thus protects their interest in Mickey Mouse, their iconic character. One of the first appearances (Wikipedia claims it's the third appearance) of this character is in the cartoon short Steamboat Willy. This short has been at the center of much of the debate around copyright on the character.

Recent work suggests that, in fact, the character in Steamboat Willie is not copyrighted any longer. If that's so, Mickey Mouse as he's presently constructed is probably a too-close derivative work to be claimed under separate copyright and thus the mouse may be out.

In a recent PATNEWS email letter, Greg Aharonian reviewed some of the scholarship around this issue. (This summary reprinted from PATNEWS with Aharonian's permission.) Start with a popular-press story from late August by Joseph Menn in the LA Times. In this story, Menn traces the value of Mickey Mouse to Disney and some of the corporation's fights to keep control of the character. Menn introduces us to "[t]hin, pale and bespectacled" Gregory S. Brown, a former Disney researcher who has unearthed some uncomfortable facts.

First, Brown found a court case in which Columbia convinced a judge that a failure to renew a particular copyright had let the image of the popular kid's ghost "Casper" fall into the public domain and thus they were free to use that image in their movie Ghostbusters. Then Brown found that Disney had made a similar lapse in protecting a 1933 Mickey Mouse short called "The Mad Doctor." If like follows like, then the images (cels) from that short should be in the public domain and he could make some money selling copies of the cels. Of course, you can see where this ends up: Disney sues, Brown loses to the tune of half a million dollars, case closed.

Except, maybe not. In a move that was too late to save his own case Brown introduced evidence from a 1993 rerelease of "Steamboat Willie." In that release, there were three parties named as possible owners of the Mickey Mouse character, a confusion that could nullify copyrights. Don't ask me to explain it - even Aharonian, an IP lawyer, calls this bit of law "arcane rules". Menn's article quotes a treatise called Nimmer on Copyright as saying that "a copyright is void if multiple names create uncertainty." Three names? Uncertainty! And thus voided copyright.

Or so conclude a couple of people who've looked at the issue. One, an ASU law student, posted a paper on the topic in 1999. Here is her punchline:

Disney published its common law protected expression without the proper copyright notice attached to the films and on the club materials. The statute of limitations to rectify that omission has long since elapsed, as has the statute of limitations for Disney to file any infringement claims based on that omission. As a result of its omissions and inaction, Disney forfeited its copyright claims to Mickey Mouse. Mickey has fallen into the public domain where all are free to copy and enjoy him.

Likewise a Georgetown University law student, Douglas Hedenkamp, agreed and published his review first online and then later in an article in the 2003 edition of the Virginia Sports and Entertainment Law Journal. His conclusion is similar:

Ultimately, if all the material incorporated into the films published without notice is in the public domain, this means that the character Mickey Mouse is himself public domain material. Mickey would still be protected by the copyrights in his other films and products, but those copyrights would only extend to the new matter that is original to them. [FN161] The aspects of Mickey's image and character that were derived from the original public domain films cannot be protected by virtue of their inclusion in new works; this is true under both the 1909 Act and the Current Act. [FN162] This means that the public is free to exercise all of the rights that the Copyright Act would otherwise reserve to the holder of a valid copyright. [FN163] This includes the rights to copy, display and distribute the films, and to make, display and distribute derivative works based on those films and the Mickey Mouse character. [FN164]

The challenge, as Aharonian puts it, is to find someone with deep enough pockets to put this to the test. If someone was to distribute material Disney claims is its copyrighted work (e.g. digital reproductions of early Mickey Mouse images) then Disney would no doubt sue to put that person out of business. And in court would possibly be required to defend its most valuable IP asset.

Will such a thing happen? Probably not. Although the publicity would be great, and there's a lot to be said for taking down the Mouse Empire, few people or organizations have the resources to make this kind of play, especially with the likely result being that even if they win they won't reap any benefits to themselves.

Them as as the gold still makes the rules.

Well, that didn't take long. Google has admitted that putting Clause 11 into its EULA was a mistake. Frankly, it's a cut-and-paste error as I had guessed. As reported in a number of places (see, for example, CNET). Google has pulled the unnecessary language.

It was never clear to me how Google planned to capture any of the customer's data from general use of Chrome in the first place. One thing that is pretty clear is that Google will store auto-suggest and search-box info, along with the originating IP address. I'm sure Google has its own business purposes for this, but to me it looks like a prime target for bad guys in black hats and bad guys with legal discovery motions, all of whom would love to get their hands on peoples' search histories.

I'm filing this under "IP Abuse" because I'm starting to think Chrome, Google's new wonder-browser, is a tool for (potential) copyright abuse. I was first tipped to this by Edward Champion, who blogs under the title "Reluctant Habits." In a post dated September 3, he picks apart the Chrome EULA and does not like what he sees.

In essence, Google has applied the same EULA that it uses for Gmail to everything you put into the Chrome browser. What, you never read the gmail EULA? You do realize it gives Google copyrights in your email, right? Yeah, it does.

Anyway, here's the relevant clause from the Chrome EULA:

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

That's potentially very bad. Should Google ever choose to make use of those rights it could cause problems ranging from simple embarrassment to loss of serious value. For example, I work at a company that makes Web-based tools for securities traders. If someone runs our tools in a Chrome browser, does that mean Google owns (or thinks it has any rights to) my customers' financial data? Should I be telling my customers not to run Chrome? Does this principle apply to anyone who ever does any home banking in the Chrome browser?

This condition seems completely unnecessary for a browser. I can't find any similar language in the Firefox EULA. The Internet Explorer EULA has language some people object to in terms of disabling and potential interference, but it doesn't seem to contain any terms claiming ownership of content. WTF, Google?

OK, I'm in need of help here. Have I got this right?

This is a set of innocuous-sounding proposals to "co-ordinate" and "harmonise" radio spectrum use. It contains high-minded phrases like "safeguard media pluralism." It proposes setting up some kind of overarching governing body (Body of European Regulators in Telecommunications (BERT)). National regulators would have to submit proposed regulations to BERT. Seems pretty simple. That's one side.

On the other side we have some pretty inflammatory language. "European Parliament rushes towards Soviet Internet" screams the not-for-profit FFII (Foundation for a Free Information Infrastructure).

The FFII claims to be "largely responsible for the rejection of the EU software patent directive in July 2005" and to speak for over 100,000 members. Their objection to the telecom package seems to revolve around a set of amendments that were (to use a US phrase) back-doored in at the last minute. Apparently, these amendments would permit BERT "to define which are the authorised software applications for the internet." Which is to say, if your preferred app doesn't meet with regulatory approval then you can't run it, your ISP can't provide it to you?

That'd be... bad. But wait, there's more.

A site called "TELECOMTV" is conducting a related petition campaign against the package, on the grounds that among the 800 or so amendments to the package is language that would remove ISPs content-neutral immunity.

In particular, ISPs currently aren't required to monitor or police content or user identities on their networks, until something specific arises such as an allegation of copyright violation or other illegal activity. ISPs are "mere conduits" under current laws; the new amendments would remove that protection and force ISPs to track or even block individuals' access to the net.

TelecomTV is arguing for the removal of three specific amendments that would force ISPs to act as copyright police. They are also opposed to the spread of something like a "3 Strikes" rule ("Riposte Graduee" in French) that would require ISPs to warn, discipline, and eventually sever users.

This doctrine is presently generating a lot of criticism in France where it was first proposed. Organizations such as "La Quadrature du Net" are calling for a moratorium on new rules related to digital telecoms rights & freedoms. The argument is that the MEP (Members of the European Parliament) didn't really understand what they were voting on, don't grok the net, and need to consider the implications of new regulations more fully before passing them.

I hope I've done this issue some measure of justice. An American point of view isn't necessarily going to translate some of these things well, even though most of the published materials are in English.

For years (and I mean YEARS - remember this report from 2005? Or Diebold's abuse of takedown notices from 2003?) copyfighters have been complaining about the abuse of the DMCA's takedown notice provisions.

In the ongoing saga of Universal Music versus a dancing baby, we have finally gotten a ruling stating that copyright holders must take fair use into account. Timothy Lee's write-up on the decision for ars technica goes through the claims Universal made and notes that the judge either simply ignored them or slapped them down. (Hint to Judge Jeremy Fogel: ignoring the Cartel's willful stupidity may reduce your blood pressure but isn't likely to get them to stop it.)

So what happens now? Well, Stephanie Lenz's suit against Universal is still alive at this point, but there's nothing stopping them from throwing more legal sand in the gears. In theory Lenz and her EFF lawyers can now begin discovery for their case. We'll see how far that goes.

EFF posted a PDF of the decision: http://www.eff.org/files/filenode/lenz_v_universal/lenzorder082008.pdf

Cory Doctorow and DJ Spooky on stage together in NYC to benefit the CBLDF.
Details here: http://www.cbldf.org/pr/archives/000367.shtml

Two very interesting and thoughtful people. Benefiting a great charity. What more could you ask? (except to be in NYC this Thursday night)

A little over a year ago I was writing about negotiations between SoundExchange and Web streamcasters. The issue was a set of exorbitant new fees authorized by the US Copyright office. Back then it appeared that Congress might even pass some kind of legislation. In the glare of scrutiny and public outcry, the Cartel backed down, a little. Web radio didn't die.

But it did ingest a poison - a slow-acting set of fees and restrictions that may yet kill the nascent industry. According to Peter Whoriskey's story in this weekend's Washington Post Pandora may have to shut down due to the fees.

Pandora is wildly popular by Internet standards: over 1 million online customers, a top-10 app for iPhone, and adding 40,000 new customers/day. With numbers like that, why would the business shutter? Well, according to the story, 70% of the anticipated USD 25 million all those customers generate will go to fees. The company is losing money even as it grows, when it should have gone revenue-positive next year.

Last year it was Markey who tried to broker a deal. This year the Congressional go-between seems to be Berman (D-CA) but he's frustrated to the point of pulling the plug. Regardless of individual Congresscritters' frustrations, nothing seems to be in the works to fix the fundamental inequalities that force Web casters to pay rates more than double that of satellite radio. Sat radio rates are based on percentage-of-revenue, a metric that Web radio has asked for repeatedly and never gotten; Web radio pays per-song. Traditional radio, of course, still pays no performance royalties.

Oddly, the Pandora blog has nothing about this; last year Westergren used the blog as a hell-raising tool.

Our friends at the FMC sent me a couple pointers to upcoming events, primarily their fall seminar series. Here are the pointers of interest:
Monday, September 22, Old Town School of Folk Music, Chicago, IL: http://www.futureofmusic.org/events/Chicago08/
Monday, October 6, Public Theater, New York, NY: http://www.futureofmusic.org/events/NYC08/

Seminars cost $25 and are primarily targeted at musicians and other people involved in the business of making, selling, or distributing music.

Kevin Kelly - who a few months ago put out the notion of "true fan" - has another interesting assertion in his blog: people want to pay for stuff.

Why, then, is copying - and not paying - so prevalent? Kelly says that people want to pay if they perceive that the exchange is fair, if it's easy enough, and if they understand some sort of benefit that comes from the paying.

Just stating a benefit (enabling creators to be paid) isn't enough. Conversely, just threatening a negative (lawsuits) isn't enough. Kelly refers to a survey of UK youth in which the surveyed indicated a desire for a monthly-fee unlimited use music service. More or less the way television is delivered to them now.

I'm more or less on-board with this notion. It's essentially what Copyfight has been arguing for years: the experience matters, new business models are needed, etc. The place where I differ is when Kelly asserts that what we want is a relationship, and that paying is a form of/part of that.

I'm sorry, but I really don't want to have a relationship with iTunes, or NBC, or even a hip Web 2.0 technology like Flikr. Paying for these things doesn't make me feel differently in respect to them. I want to have a relationship with people, whether it's a Big Name creator like Joss Whedon or other fans. If Whedon makes his creations available on iTunes or NBC then I might pay those entities as a necessary component of being a fanboy, or if other fans share images on Flikr that's part of a relationship. Paying is just incidental, which is why I think Kelly isn't paying enough attention to his own hints that the payment process has to be so easy (seamless) that it fades into the background.

Given that the guests include Cory (boingboing) Doctorow and Randall (xkcd) Munroe I doubt most anyone will notice I'm there. On the other hand, I can't imagine putting Cory and myself in the same place and NOT having discussions of intellectual property arise. As I've noted before, Cory has been putting some effort into educating SF writers on the status and realities of modern copyright practices. As Guest of Honor at the con he'll have lots of chances to air his views and talk about his different projects

His blog entry pulls out all the embedded URLs from the article and includes four links to discussions of photographers rights. Bookmark this one: http://www.schneier.com/crypto-gram-0806.html#1

Microsoft wished for a new trial, but must not have asked nicely enough this time. Last time it was accused of infringing Alcatel-Lucent (digital music) patents it won, getting a negative verdict and large judgment thrown out. This time, however, Judge Marilyn L. Huff of the U.S. District Court in San Diego not only upheld the verdict, denying Microsoft's request for a new trial, she increased the penalty against the infringing software maker to a whopping USD 511.6 million in damages and interest.

Not surprisingly, Microsoft said it would appeal, meaning the five-year-long patent scuffle is likely to continue for years to come.

I had a nice chat last week with Mike O'Donnel of iCopyright about their new service for small and independent publishers. The company has a large for-pay service that is used by large publishers, including news wires, to track the digital progress of copyrighted materials and they're reusing some of that technical infrastructure for the new offering.

O'Donnell noted that previous attempts to let individuals control how their intellectual property is used, particularly Creative Commons, lack a number of useful features. iCopyright is promoting itself as an alternative that is free to small-scale creators, and supported by advertising and partner revenue.

But back up a step - what's wrong with CC and how can it be fixed? Well, some of the lacks are that there is no loopback to the creator. If I put a CC license on my works I have no way to track how those works are being used, or to confirm that something is in compliance with my CC license terms. CC also has no enforcement system and if I wish to charge a fee for use (a term specified in CC licenses) there's no mechanism to help me collect these fees.

iCopyright addresses each of these. When you use their service you build a ©reator tag and use that as part of your copyright notice on your writing, artwork, photo, etc. The tag links back to the iCopyright servers, which track clicks and loads so you can find out who's viewing your tagged material, where it's displayed, and so on. Separately, iCopyright has a scanner technology similar to Attributor, which attempts to find places on the Web where tagged content is being used, potentially without permission.

As the owner of the ©reator tag you get a profile on their site that you can use to publicize yourself and to set the terms for use of your work. Unfortunately, the free service doesn't allow you to vary permissions by item - you need to pick one model for sharing all content associated with that tag. For example, if you wish to charge a fee for use of your photos, iCopyright will give you a Paypal link so people can give you the fees you set. If, however, you also want to give away your blog entries for free you can't use the same ©reator tag - you'd have to create another one and attach the free license to the second tag.

As a free-to-creators service this seems like a step forward - we definitely need more active and more powerful tools to turn copyright flexibility and fair use ideas into actionable entities. It's far from the last word, I'm sure.

The Futurist online has an interesting think piece by Patrick Tucker on the possible future of writers, books, and writing in this century. Riffing primarily on a talk by Tim O’Reilly from earlier this year, Tucker visits interesting notions such as "the book as souvenir."

There's not a whole lot new here for Copyfight readers but it's an interesting checkpoint that draws together several ideas. One is that modern online writing (primarily blogging) is barely paying the bills even for fairly popular writers, particularly those dependent on ad clicks for revenue. Another is that those who are (still) reading books are interested in more than the content of the page - they're looking for connection and probably also participation of some form.

One way to take this is to think of the book as a part of, or maybe just an intro to, a set of experiences such as blogs, chat, conferences, parties, or formal training situations. Not all of these are appropriate for all published books, but genres such as science fiction have long connected writers to their fans through conventions and other gatherings, much less formally organized.

Finally, there's the question of whether or not the book-qua-book will survive all this evolution and revolutionary change. Will things like the Kindle put the book as we know it to rest? Probably not. As Michael Agger documents in his piece for Slate, the act of reading a physical paper book creates distinctly different - and notably pleasurable - mental states that just aren't found yet in any other reading device.

Nobody quite knows why this should be so - perhaps it's something to do with the book-as-artifact, or maybe it's as simple as the fact that we aren't subjected to the same kinds of distractions and interruptions with a physical book as we are subject to when reading online or with an e-book device. However you assign it, though, it seems that books in some form are likely to be around for quite a while. If only we can figure out how to keep publishing profitable...

The CS Department at University of Washington have released a report with this title reporting on an investigation of copyright enforcement as it currently exists on P2P networks.

The report's site contains a summary of the report's findings, a downloadable PDF of the full report and an online FAQ describing their research methods and key findings. I haven't digested the full thing yet, but the three basic conclusions are stated pretty bluntly:

1. Anyone can be framed for copyright infringement. The remote and automated generation of complaints shifts the burden significantly onto the accused to prove their innocence.
2. In addition to malicious framing, innocent people can still be erroneously fingered, even if they've never run a P2P program
3. Privacy in P2P networks is partial or illusory at best

Could it be? Say it with me. That'd be... The Cartel.

OK, so I'm not about to start a new career as a singer-songwriter. Which is probably good since I'd probably be foolish enough to give away my own recordings of my own performances for free and if I used BitTorrent for that then I could be the one getting DoSed.

But that's in the hypothetical future. Here in the real present, it's a company called Revision 3. This company uses BitTorrent to distribute its own high-quality digital shows. This past weekend they were subjected to a SYN-flood attack that brought down their servers. The flood was specifically aimed at the port they use for their torrent tracking server.

In a brief blog snippet on CNET, Elinor Mills asked who would want to bring down Revision3? Good question - it's not a well-known company with lots of aggrieved foes. Yesterday, Jim Louderback posted an extensive dissection, including amusing explanations for newcomers describing what a SYN-flood attack is.

Apparently the attacker (MediaDefender) made no attempt to hide its actions. In fact, the company has previously been exposed - by its own leaked emails - as a deliberate miscreant on peer-to-peer networks. So it's not too surprising they're still at it.

But according to Louderback's posting, the company admitted to worse, including "abusing Revision3's network, over a period of months." Excuse me, isn't that illegal? You know, Company A steals Company B's resources to make a profit - what do we call that? Theft? Fraud? Or just Cartel business-as-usual? Louderback points out that DoS attacks are illegal computer fraud and abuse and claims that the FBI is "looking into" the matter.

My cynical side says this won't amount to a hill of beans, but one can still hope.

Sherman, set the wayback machine to 2005! No, I'm not talking about the Internet Archive's Wayback machine. I'm talking about traveling back in time to late 2005 when the 'net was buzzing - angrily - about a Cartel proposal to require DRM to be embedded in every broadcast signal. The end of 'free' TV? No more time-shifting allowed? You remember that.

In the end, the Cartel got half a pie. There's a flag, but the FCC explicitly stated that it wasn't supposed to prevent home recording. Even "redistributing it within the home or similar personal environment as consistent with copyright law" is allowed. That's a quote from the FCC's rulemaking on the issue (helpful PDF from our friends at the EFF).

So why are we talking about this again? Well, it seems that Microsoft's Vista Media Center suddenly started refusing to record over-the-air digital content broadcast by NBC. Here's a screen capture provided by the EFF, which is trying to raise the profile on this incident:

According to Greg Sandoval at CNET, Microsoft has admitted that it implemented the Broadcast Flag and is claiming that it's based on FCC rules. Duck and cover! Duck and cover!

Aside from being just blatantly wrong in its justification, MSFT's admission raises a host of questions. First, it seems likely that the broadcast flag wasn't just added to Vista Media Center recently. So why did it just become visible? One possibility is there's a bug somewhere - certainly wouldn't be the first time. But nobody's claiming this was an error. Another possibility is that NBC asked for recordings of its popular programs to be blocked. Or maybe the flag on those programs was erroneously set. So far NBC is mum, claiming to be looking into things.

My cynical take on it is that they're waiting to see how many people notice and complain. If they get a lot of bad stink they claim it was an error, apologize, and move on. If this blows over then they can feel they have a green light to block home recording any time they want, at least for people foolish enough to use Vista as their DVR.

MythTV, anyone?

I don't blog much about the minutae of the cascade of digital music-related lawsuits in part because there are people who obsessively blog these things and I've lost patience with it over the years. One place that hasn't lost patience and generally does a very good job with the details is Recording Industry vs The People.

Yesterday they published an entry that caught my eye because it goes to the heart of something I've been wanting to see for a while: someone is trying to kick the legs out from under the set of suppositions that the RIAA are using to sue the pants off everyone and anyone.

Here's a short list of things the RIAA would like us to believe and have (by and large) gotten judges to agree with:

• You are not allowed to make MP3 copies of tracks on CDs you legally own


• Placing MP3s into a file directory that might be accessed from outside your computer is equivalent to giving away copies


• An IP address is equivalent to a personal identifier

Well now we a judge rejecting the RIAA's motion for summary judgement in the case. If the judge had bought into the RIAA's premises above the case would've been another slam-dunk win for the Cartel. Instead Judge Wake appears to be ready to change his earlier stance and agree with the defendants (and their EFF counsel) that simply placing copies in a directory is not a "distribution". This is key because if there's no distribution then there's no copyright infringement.

Furthermore, there's a good question to be argued as to whether the defendants are even the ones who put that MP3 file there. Such an issue would be settled by a trial, but the RIAA doesn't want trials. Its jihad is based on filing and rapidly settling thousands of these lawsuits. Having them go to trial would prove time-consuming, risky, and expensive even if the Cartel won.

For a large variety of reasons, the Cartel can't afford to wage this war in the court trial dockets. It needs to be conducted in the mass, scalable fashion whereby the threat of the judiciary is used to extort payment from consumers... err, victims... err, named defendants.

Despite the amount of time this case has already dragged out, it's still in the very early stages. As Eric Bangeman pointed out in his ars technica story on the denial, Judge Wake's reasoning is at odds with other judges' decisions on similar issues. For the great majority of cases, the RIAA is being successful in its jihad. My guess is that they'll argue this case a little further to see if Judge Wake can be swayed back. If he continues to rule against them, they'll drop the case before it goes to trial - they have no incentive to get an actual verdict on the books against them and an appeal would be even more expensive. So long as the tide continues to run in their favor, the Cartel can keep going even if it has to drop a case now and then. To truly kick the legs out from under them would require an act of Congress or a decision by a much higher-level court. Neither will happen soon.

Cory Doctorow has structured an interesting...something around his book Little Brother. I don't know what to call this - it's part charity, part pay-for-value-received, part experiment.

The idea is that Cory gives away this book - it's online for free. But there are people (true fans, maybe?) who want to donate to Cory in return for the value they receive with this book.

Cory doesn't want direct donations, not least because he doesn't want to cut his publishers out of the loop. In the donation page linked above he points out that they add significant value. So what he's proposing is a method for people to get copies of the book into the hands of teachers and librarians, who otherwise might not have funds for it or who might have to pay out of their own pockets. Librarians or teachers who want to receive free copies put in requests and they're matched up with people who want to donate. Cory and his staff are apparently donating their time and administrative effort to coordinate the giving.

This is my little signal boost for a guy who seems to keep showing how giving away his books makes things better.

Clay Shirky is one of the better Big Thinkers on the Web today, particularly in the arenas of social media and cooperative interactions. He's published an essay called "Gin, Television, and Social Surplus". In part this is related to his new book Here Comes Everybody but focused around a single idea.

The idea is that, contrary to the naysayers, we are doing something, potentially the start of something huge. That something is participating, whether it's in something as erudite as Wikipedia or as trivial as lolcats and World of Warcraft. We're taking some of the hours we currently waste on passive television viewing (Shirky estimates roughly one trillion hours of television are watched by the Internet-connected population) and putting them into "an architecture of participation."

Now, as a Copyfighter, the thing that interests me is that almost all of that participation involves creation and sharing, to some degree. If you're in a constrained environment like Warcraft or Second Life, then the acts of creation and sharing you can engage in are limited by the virtual world's structure, coding and rules, few of which are accessible to the mass of players. But if you're out on the wider 'net then your creation and sharing are inevitably going to bump up against the intellectual property structures of the physical world.

So maybe the Copyright Wars were inevitable. And maybe, if Shirky is right, they're not only inevitable, but it's inevitable that we - the online, wired, connected, sharing population - will win. Or our children will. Looked at this way the Copyright Wars aren't just the death throes of a few mass media empires with badly outdated business models - they're the collateral damage of a tectonic culture change. That's a cool thought, even if it's probably wrong in some of the details.

Gaiman included a few "final" thoughts on copyright. Given how much he's involved himself in the discussion of these issues over the years I seriously doubt this'll be his final word, but perhaps he feels he has no more to say on the Rowling case.

In this entry he's reflecting on his own copyright battles with Todd McFarlane over authorship of certain material that Gaiman wrote. He also links to the judge's decision in that case. There are no real parallels that I can see, and Gaiman says as much. Still, it does point out that he has first-hand experience of someone trying to steal things he wrote and that there is a framework within law for dealing with such things - where such framework does not include Ms. Rowling's emotional appeals to 'think of the charity'.

Gaiman put up a blog entry explicitly calling out fair use. In it he talks about the Rowling/RDR Books case, noting that her approach is different from his own in response to 'unauthorized' material that has been put out on him and his writing.

He also notes that his own two first books were at best legally shaky in Fair Use terms - an aggressive lawsuit could easily have shut him down from writing anything more. On the one hand that'd be a shame - Gaiman is popular and has gone on to write many well-respected and awarded books. On the other hand, I'm not sure it's a career path we can depend on a lot of people following.

Ms Rowling is not the only one concerned with how much of her work others are taking. Law.com has a report from Janet Conley on a lawsuit by three academic publishers against Georgia State University.

At issue are incidents like a 32-page copy made by a music professor. The prof claims that the copying was within University guidelines ("no more than 20%") and that the cost of the volume ($250) was prohibitive for students to purchase. The publishers claim that the U's practice of digitizing and distributing course packs of excerpts costs them money in lost book sales.

The case is a little different from typical copyright suits such as the Rowling case. The publishers are not seeking monetary damages, nor are they particularly trying to punish the University. Instead what they're hoping to do is create a legal precedent saying that Georgia State's guidelines and practices do not constitute fair use and not only should this university be enjoined, but the multitude of other schools with similar practices should be stopped.

As Conley points out, this case may break new ground. Past cases have been decided on issues around the creation of paper copies (Xeroxing) often by for-profit institutions. In this case, the copying at issue is digital and the organization doing the copying is non-profit. The educational area is one where courts have traditionally afforded a greater degree of leeway in fair use and even the plaintiff's lawyer has to admit that he can't find a law or binding precedent stating how much digital copying would be "not too much." It seems likely that if the case ever makes it as far as a decision that decision would be appealed. My personal opinion is that they'll work out a settlement before it gets that far - neither side wants to see a precedent set that would go against them. Plus there's a core reality that academic publishers and educational institutions exist in a kind of death-grip dependency that would harm both if it was violently broken.

Or, formally, Warner Bros. Entertainment Inc. v. RDR Books, 07-cv-09667. But since it was Rowling testifying Monday, that's where the focus is. If Mark Hamblett's piece for law.com is accurate it appears things are getting nasty right off the bat. Considering how heated some of the comments were on my last entry on this topic I expect there's a fair bit of passion in the air.

The basic question is whether or not the lexicon itself is a protected fair use creation or whether its printing should be enjoined as copyright infringement. Or, as Rowling called it, "wholesale theft."

Rowling's arguments seemed to be laced with emotional appeal and what strikes me, frankly, as shenanigans. She's so upset about the book that she had to fly personally to New York to testify, even though the judge offered to accept written testimony. The book has also "decimated [her] creative work" even though she gave the Lexicon Web site an award in 2004. And, somehow, the publication of this book is going to stop her project of doing her own lexicon, as if her fans wouldn't buy every single work she published. Did you know she was just about to give away all the proceeds from her lexicon to charity? News to me. Hey, Rowling, how about you take some of that $9 billion in book sales and donate it instead?

Mind you, I'm not convinced she's not right - the Lexicon book may well be infringing. I just dislike cheesy appeals to emotion. Think of the children! Puh-leeze. None of this is really germane to the question of whether or not the Lexicon is a transformative reference work, in which case it ought to be protected. Fortunately there's no jury to be swayed in this trial - let's hope Judge Patterson sticks to reasoning from the facts.

Daily Kos posted a think piece this weekend. The essay argues that big media have, in effect, caused their own devaluation. That is, the "amateurish" state of news on the Web is not really due to the proliferation of bloggers or non-authority sources such as Wikipedia. This is the thesis advanced by Andrew Keen in his book The Cult of the Amateur. Instead, the problem is that there has been a systematic attack on big news sources once considered reliable (CNN, the NY Times, the Washington Post, etc.) by forces such as talk radio and Fox News.

It's no coincidence that these latter are by and large right-wing, and Daily Kos is itself quite left-wing. However, that doesn't make the argument necessarily wrong. Just something more to think about.

Neat-o-rama blog reported that students in UT San Antonio were told to come up with a "code of academic integrity in order to combat plagiarism". Apparently they then copied a chunk of their code from BYU.

Now on the surface this is a ha-ha funny story about kids who copy when they shouldn't. But the people I think don't get it here are the teachers and Neat-o-rama (though in fairness the blogs' commenters seem to get the point better than the blog itself). Why shouldn't the students copy an existing code from a university that is respected and has presumably tested and refined its code over some period of time? What's the value in inventing something new when there are good examples around?

By analogy I suspect you wouldn't find many differences in the criminal codes of the various US states pertaining, say, to burglary. The established terms and definitions are shared; the understanding of the crime is shared. The specific wording may vary here and there, but if I was going to set up a 51st state it would seem logical for me to look at and probably copy criiminal codes that have (you should pardon the term) been debugged by others.

In terms of inventive arts I don't think there are a whole lot of innovations one ought to make in putting together a code of conduct. Clarity, forthrightness, simplicity and other metrics related to the understandability of the result seem to me to count for a whole lot more than how the particular words are arranged.

It's true that one of the important parts of an educational writing exercise - as well as in the real world - is learning to acknowledge one's sources properly. And I'd bet the students didn't do that here, but whose fault is it for not teaching them that?

Riffing on the same theme as compfight, Google has added a feature to its advanced search that lets you find Web pages with explicit usage rights as a search parameter. The parameter lets you specify a few combinations of free to use, share, and modify.

Unfortunately, the feature is buried by default under a collapsed page region. It's one click to expand, but I wonder if many people - even advanced search users - will go that extra step. Most searchers I know are in a hurry to get results.

The search form provides a link to an explanation of Usage Rights, which includes a further link to Creative Commons. It's not exactly the kind of feature that will drive awareness and publicity, but it's a small step forward.

Onion Network News gives us a guideline for how to figure out whether the FCC will find something obscene or permissible. Maybe the Supreme Court should include this in their review.

Neil Gaiman posted an update on the experiment of making American Gods free online to read. Numbers from Harper Collins, which is hosting the e-book, show a decent number of unique views and a fair number of page impressions. If their numbers and my math are right the average viewer is reading about 45 pages online, which is 1-2 chapters.

That's not much for a full-length novel, but apparently it's enough to interest people, since H-C reports that weekly sales of the book have gone up threefold since the start of the experiment. Sadly there's no way to correlate sales data with the free online read data. Perhaps it's new readers, perhaps it's people remembering they meant to buy it anyway, or replacing an old copy. Perhaps it's people dissatisfied with the cumbersome online interface but interested enough to invest their cash in getting a better interaction.

One experiment is just a data point and doesn't necessarily tell us a whole lot. However, the positive trends in all these numbers are probably good enough leverage for Gaiman to push the experiment further. We shall see. Meantime, it's probably not wrong to say "free books online sells more paper copies." I think that's what Cory said last year.

Clay Shirky gave a talk at the Berkman Center covering some of the ideas from his new book Here Comes Everybody: The Power of Organizing Without Organizations. The video is online from Harvard under a Creative Commons license. The focus of the talk is Shirky's notions about the enabling power of the Net and along the way he has a lot of interesting things to say about sharing, including Napster and a variety of other collective sharings like American dubbings of Japanese anime.

There's a lot of power in sharing and Shirky points to several interesting examples of that power. The video is a bit long and definitely not high production value, but definitely worth the time. I need to read the underlying book to parse through the ideas more fully than I can get from a single talk.

File this under "rampant speculation." The headline is that New Line Cinema, maker of the Lord of the Rings movies, is calling it quits, with top execs out and assets being snapped up by Warner Brothers. Question: did the ongoing legal problems over those movies sink the studio?

End of last year it looked like New Line was in the clear, having finally settled its long-running legal battles with Peter Jackson, and green-lighting two "Hobbit"-based movies. But just about four weeks ago trouble broke out again with the Tolkien estate suing New Line for... well let's call it "cheating them blind."

Ironically, just about the time this suit was filed I pointed to an LA Times piece on how Disney had screwed over a naive young author. The Tolkein estate isn't young and it has lots of money to hire lawyers. Their primary claim seems to be the same, though - given the massive grosses taken in by the Rings movies they've been paid, um, let's see here... NOTHING.

I can't figure out from the various news stories whether WB is taking on all of New Line's debts and obligations or whether those will be shed the way New Line's 600 employees will be. Assuming that WB still wants to see the Hobbit movies made (on the "we will make another kajillion dollars this way" theory) then they'll probably come up with some kind of settlement that leaves them in clear control of the rights.

Kevin Kelly has caused a bit of a stir by putting out a model for patronage support of creative people. His concept is that of a "true fan" and the piece's title is "1,000 True Fans". The idea is that if a person was willing to spend about one day's salary (Kelly picks the arbitrary sum of $100) then an artist could be supported by one thousand such people.

This is on the surface a very attractive idea, not least because the numbers seem manageable. Most people well enough off to be regularly on the Net probably can manage a $100 donation. Most people can conceive of appealing to an audience of 1,000. It's almost the polar opposite of the mega-millions/blockbuster mentality that pervades so much corporate media production, from books to movies to music and so on.

Unfortunately the idea isn't as appealing once you dig past the ideal surface and into the gritty details. Probably the best counter-analysis I've read so far is John Scalzi's: "The Problem With 1,000 True Fans."

Scalzi starts from the point of being someone who probably has at least that many True Fans already. And then points out a number of uncomfortable things, such as those fans being drawn from a base population that is at least two orders of magnitude greater. And that even though the tens of thousands of well-off Netizens represents a good pool of people from which Fans may be drawn it's still a very small pool and quickly exhausted.

Just to pick my own personal favorite example, the south-by-southwest festival this month features over 2000 bands, interactive artists/designers, filmmakers, and other creative types. Supporting just that one festival by Kelly's patronage model would consume nearly a quarter-million True Fans. And that doesn't even scratch the surface of the vast sea of writers, musicians, and artists who would like to get paid and maybe even make a living from their creative work.

That doesn't make Kelly's idea stupid - it just makes it not-completely-thought-out, which is OK. Right now you can cast your eyes around the Web and find a hodgepodge of "Donate" buttons and similar mechanisms for fans to express their direct support of creative types; these also have their pros and cons. We need more big thoughts on how to develop alternatives to (that can co-exist with) large corporate funding.

A couple weeks ago I blogged about Neil Gaiman's work with his publisher to put up one of his books for free download. At the time, the fans voted on which book they wanted put up for free. Well, it's up, and last night Gaiman blogged this:

For the next month, your free copy of American Gods is waiting for you at http://tiny.cc/WRiXE

Feel free to spread the link as widely as possible around the web. If it works, and people read it, then a) we may be able to put up another book and b) sooner or later they'll simply let us give away the book in electronic form....

Also, if you think Gaiman is being naive or doesn't understand what he's doing, you might want to hop over and read today's blog entry titled "The nature of free". You may or may not agree with him, but I don't think anyone can accuse him of going into this unknowingly.

"I see that politicians have a way of borrowing from each other."

On msnbc.com I found a video of a Meet the Press segment that begins by addressing the issue raised by Mrs. Clinton of whether or not Mr. Obama had plagiarized some political speech lines.

The discussion is partially about political views, but it's also got a few things to say about originality and 'plagiarism' in political speechwriting. As with so many other creative endeavors, this kind of writing does not occur in a vacuum. Rather, it sits within a stream of history, an awareness of what has worked earlier and what has failed, and it copies from the successes of the past. In some sense, speeches are copyrighted works, owned by the creators. When performed (spoken) they're also recognizable works, with added rights beyond the written texts. And yet, it makes no sense to build rigid regimes of ownership and limitation around them - doing so would weaken political discourse. But our conversation around copyright and ownership of IP has become so constrained of late that I don't see people generally willing to acknowledge this. As Obama says, we've "entered the silly season".

A friend of mine blogged about a talk by David Wallis, whose book "Killed Cartoon" catalogs political cartoons and photographs that have been killed by newspaper and other print publication editors because of being anti-war.

The logical question, not answered by Mr. Wallis, is why not take this material on line? For me the definitive online anti-war cartoon was always "Get Your War On" which never pulled any punches. On the other hand, it never made any money that I'm aware of - according to Wikipedia, the print book version's royalties were donated to landmine clearing organizations.

Could it just be that there's no established revenue model for taking independent cartoon work online and getting paid for it? I certainly read a lot of Web comics but beyond the occasional Paypal or donation drive by the cartoonist I don't pay for any of them. Like e-zines, about which I blogged earlier this month, online comics have been around for enough years that one would expect a reasonable set of business models to have emerged.

What's holding things back?

This is being painted in the context of net neutrality and copyright enforcement; I see it as a way to automate attacks on any particular users of any information. There's no reason this technique couldn't be used by, say, the Chinese government to disable access to Web sites it finds objectionable. Or paint your own picture.

The story starts with an announcement by AT&T that it's going to police all traffic it carries for copyright violations. That's both stupid (legal liability anyone?) and practically impossible. Packet volumes and encryption render this a nonstarter. The volume of lawsuits alone would be staggering even at AT&T's size.

But let's apply a little intelligence to the problem. Assume you don't need to examine every packet - just the highly visible and highly accessed sources of copied material. Torrents are the prime example of this. Nicholas Weaver wrote in his blog last month of a hypothetical method that would permit AT&T, in cooperation with a copyright-holding entity like the MPAA, to disable torrent downloading.

The plan involves examining a torrent to see if it has material the MPAA doesn't want sent around, then selectively disabling pairwise communication between providers of the torrent and would-be consumers. The torrent identifies participants, so they can be blocked and Weaver describes a fairly clever scheme that disables pairwise communication without harming general network communication. The system has significant advantages to its users, not least of which are that it's completely automated and scalable. It also means AT&T gets out of the content-examination business and avoids the associated liability. The copyright holder (MPAA or other) is examining the content and assuming liability if legitimate content is blocked. This is the same situation we have now with DMCA 'takedown' notices.

The system isn't perfect - I can imagine counter-strategies - but it would certainly disable general P2P networks as they presently operate.

Hometown paper the LA Times runs an extensive piece on the complete screw-over that studios give to writers. To say that they lie, cheat, and defraud doesn't begin to cover it.

In this case the victim is one Deborah Gregory and the villain is Disney but the same story could be told hundreds of times - just change the names and it's the same again and again. In this case Gregory started as a successful but naive author, then signed with Disney for 4% of net. After two movies, millions of CD and DVD sales, and god-knows-how-much spin-off merchandising, Gregory has gotten exactly nothing for any of this. In fact, Disney won't even give her statements showing revenue and expenses that would allow her to pursue her share of the profits.

As the Times piece points out Hollywood has been using shady accounting and unfair contract terms to screw people for decades. They have all the power, especially when dealing with newcomers, and they use it shamelessly. Keep that in mind the next time they cry about how much money they're losing to "piracy"; I'm not a big fan of theft, but I sure do love schadenfreude.

Earlier this week I had a chat with Jason Nazar of docstoc.com. The company had contacted me a while back suggesting the chat. They're a beta-level software startup dealing with professional, legal, and business documents.

I was initially dubious that there was a Copyfight angle to this story. As Nazar himself pointed out, there's not a lot of illicit traffic on the P2P nets in business content, particularly when compared to the volume of entertainment-oriented content (music and movies primarily). That said, docstoc does have some points of interest for this blog, particularly in thinking about new business models that could be built around sharing.

First, back up a few steps. Docstoc is a hosting, sharing, and community site. Like YouTube it produces no original content bur rather holds and shares content (documents) uploaded by people. There's no membership fee and anonymous uploading is allowed. If you want to download a document, then you have to have a site login.

Since the point of the site is to share documents, everything placed on the site is in some sense free. Docstoc takes advantage of several Creative Commons licenses so when you upload files you can specify varying degrees of free - free to view and free to download being the two most popular I saw. The site uses a proprietary Flash program to embed the content for viewing, which allows them to encapsulate most of the popular business document formats (PDF, Word, Excel, PPT, and so on) in a uniform UI. In addition, they allow the player itself to be embedded; for example, here is a TechCrunch blog entry on WikiMedia's financials that contains an embedded docstoc player. Paradoxically, their use of an encapsulating player may both protect documents from casual copying while thwarting automated scanners like Attributor, which attempt to detect reposting of private content.

Docstoc is what I'd call a 'data cloud' play. Like Google Documents and other applications, there is an appeal to upload your content and access it from anywhere you have a net link, not just the hard disk on which the document currently resides. Like YouTube it also has nascent community features, including ratings, view counts, and personal blogs. Though these seem to be de rigeur in today's apps I'm not sure of their value here.

So, if everything is free, how does anyone make money? Well, from an individual point of view, docstoc is at worst free advertising. Many small companies and sole proprietorships put free samples, white papers, and other business-related downloads on their sites, which then languish in obscurity. These same files, uploaded to docstoc, become indexed and searchable both on the docstoc site and on major search engines that crawl the docstoc pages. When Google searches start to return hits into docstoc's cloud there's a good chance the uploader is going to see higher SERP placement than he could manage on his own.

Docstoc itself has to figure out how to make money on this and so far they don't have a solid model in place. Obviously there are advertising possibilities. As with any kind of targeted search, docstoc has the chance to generate high-quality sales leads to advertisers. There's also an option to partner with high-end paid content providers. These providers (think Gartner Group) are never going to put up their expensive paid research on docstoc. But they could put up teasers and previews, then kick back a piece to docstoc for sales leads and link referrals.

Finally there's the idea that documents + service are more valuable than just documents alone. This is similar to the open-source notion that software+service is better than only raw code. If I've just downloaded a business plan template it might behoove me to sit down with a consultant in my area to flesh that plan out. Again, docstoc is positioned to know what I've downloaded and possibly where I'm located so they can hook me up with a service professional, taking a small slice of the business referral revenue.

It's an unproven model, but that's true for most anything you can say about trying to make a legitimate business around freely sharing information. I don't know if I'm convinced enough that I would invest my own cash in the business, but I'll probably upload some documents and see how they fare.

Dave Langford's February ANSIBLE (a fanzine for fantasy/SF readers and authors) has a commentary from Steve van der Ark relating difficulties encountered in producing a print edition of a "Harry Potter Lexicon."

For some time there has been an online Lexicon, which has been criticized for both using and linking to large chunks of Rowling writing. Many of the critics feel that the online Lexicon goes beyond the bounds of fair use. In an attempt to avoid this, van der Ark rewrote, cited, and reduced the use of original material. He claims to have "received assurances from several copyright and intellectual property experts that the book we were creating was legal."

Except now there's a lawsuit. Warner is suing the Lexicon's intended publisher in an effort to enjoin the book as a violation of both copyright and trademark protections. The book's author and publisher are vowing to fight, noting that Rowling doesn't have "the right to completely control anything written about the Harry Potter world."

Intuitively I'd tend to agree with that assertion, but IANAL and it's not at all clear to me which way the judge is going to go in this case.

Neil Gaiman has been blogging online for seven years now. If you go to that link you'll find a poll asking you to vote for which of Mr. Gaiman's books is to be put online for free for a month to celebrate the event.

Gaiman's blog entry today also quotes from a New York Times story on this contest. In that Times piece Gaiman admits that he didn't buy every book he read growing up. He borrowed them from friends, from libraries, found them, and so on. Eventually he grew up into a normal book-buying adult.

The point, he says, is not just that, it's that

...there's not and there has never been a simple one-to-one relationship between the books you read and way you find authors and the books you buy. It's more complicated than that, and more interesting. It's about the way that it's assumed that books have a pass-along rate, that a book will be read by more than one person. If the people who read the book like it, they might buy their own copy, or, more likely, just put the author in that place in their heads of Authors I Like. And that's a good place for an author to be.

Bloggasm is a thoughtful collection of entries from Simon Owens that focuses on media and journalism. In yesterday's entry he reviews the troubled history of e-zines, particularly those focused on SF/F and speculative fiction in general.

E-zines in this field are at least 10 years old now and one would think they'd have had time to establish a field. Instead what we see is a vast graveyard of virtual corpses and nobody with a sustainable business model. That's kind of sad but perhaps we're still in the infancy of this market and someone will figure out a good content model soon.

Baidu, the Chinese search powerhouse was on the receiving end this week of a lawsuit by three of the big four record companies. They are asking that Baidu be ordered to stop linking on its music-delivery service to copyrighted tracks. Separate suits were filed against Sohu and Yahoo! China over related infringement charges.

The Chinese market for media is hot and growing fast. Fool.com recently published a piece advising that Baidu was undervalued. This is interesting considering the site's earlier posting advising people to get out of investing in the music business. Baidu has much larger businesses in search/online advertising than it does in music so they may agree to go along with these suits in order to keep their core businesses untouched. Or they may just ignore any decision, as they have in the past.

Oops, not so fast. Yesterday I blogged about Qtrax, a company with big claims to be providing ad-supported music downloads. An alert reader sent me a pointer to a Guardian Unlimited story in which UMG, Warner and EMI all said "No deal". Qtrax appears to be admitting to some overblown claims in announcements (wait - a software company announced vaporware?! I'm SHOCKED.) but their Web site still contains the "25 million" claim.

If you've been around politics since the last US Presidential election you might remember some of the popular parodies such as JibJab's "This Land Is My Land". I haven't seen a comparably memorable parody yet this season, but I have seen "The Yes We Can Song" (warning: page has a plug-in that auto-plays on load).

This mashup takes one of Barack Obama's New Hampshire stump speeches and remixes it with contributions from over 35 artists. The motivating forces behind this appropriation - the campaign doesn't appear to have authorized or endorsed it - include Jesse Dylan (son of Bob Dylan) and will.i.am of the group Black Eyed Peas.

I'm familiar with this kind of overlay/remix/mashup (I'm still not completely clear on the appropriateness of the terms) being used with things like popular music, but I've never seen it done before with a contemporary political speech. As in the NIN case, the "Yes We Can" remix is being used to support the original cause - I think these two projects arise from much the same sensibility though they're in different spheres.

I'm reminded of the point Cory Doctorow made in his latest piece for the UK Guardian Unlimited. In this entry in his "Digital rights, digital wrongs" series Doctorow argues for a tuning of the sensibilities of copyright law. In particular, the law doesn't distinguish between the reuse of a copyrighted work for a mass commercial project such as a blockbuster movie and the reuse of a copyrighted work for personal and noncommercial use.

Doctorow argues that "folk copyright" use existed for a long time prior to the net, but

Now you have billionaire media empires behaving as though parents should get a licence for a Prince song before they upload a YouTube video of their adorable toddler dancing to it.

Doctorow names (but doesn't point to) A2K, the Access To Knowledge project around reforms to the World Intellectual Property Organization (WIPO) treaties. A2K is trying to make this new copyright regime happen, but WIPO is a huge thing, dominated by big companies... err, excuse me, countries doing the work of big companies such as the US carrying the banner for the Copyright Cartel. Any change through this method will be many years in the making.

Meanwhile we have an election coming whose outcome just might change what positions the US chooses to defend at WIPO and in related forums.

I tend to avoid most digital music stories not because they're not Copyfight-able but because I find them boring. After eight-going-on-nine years of the Copyright Wars there's very little new in the trench warfare. So excuse me if I gloss over a lot.

First up, Yahoo has announced that Rhapsody America (Real + Viacom) will now handle its digital music subscription service. The current customers will probably end up paying a few bucks a month more for more or less the same thing. Yahoo dumps a dragging business and one hopes focuses more energy on revitalizing itself. If that fails and it gets bought by Microsoft then customers will probably have to choose between switching outright to Rhapsody and whatever Zune service Microsoft is pushing at the time.

By the way, I keep hearing persistent rumors that Microsoft is having to fork over $1 of every track sold on Zune to the Cartel. Truth? Anyone have a good source?

Also, yesterday I heard about a new online music service, Qtrax. Yawn, another service, right? Well, hold on, this one is "free." That's 'free' as in 'ad-supported', but they're claiming to have over 25 million tracks available (for PC at the moment - Mac version coming in March).

How is this possible? Ad revenue goes to the Cartel, natch. And you download their player, which means you lock into their DRM scheme though they make a big point of claiming no adware, spyware, or spoofing. Because, you know, the Cartel would NEVER put stuff like that on your PC, nope nope.

Unfortunately I wasn't able to get an activated account to check it out - anyone had first-hand experience with it?

The writers behind the Jon Stewart and Stephen Colbert comedy/satire shows staged a mock debate on Capitol Hill to illustrated some of the issues of the WGA strike.

My sense is that many members of Congress are sympathetic, but I doubt they're likely to get involved. Anyone have a video of the 'debate' itself?

The EU has been remarkably persistent in going after Microsoft for what the EU sees as anti-competitive and antitrust issues. Last year the EU had its earlier antitrust case upheld. According to Business Week, the first case "ended up costing Microsoft billions of dollars".

But the new case may be an even bigger deal from a business perspective. Now the EU are looking into "addresses core aspects of its business model and the preservation of its core monopolies," again quoting Business Week. The issues once again are bundling and interoperability, but this time looking at desktop and server OS. In specific, the complaint alleges that Vista and Office 2007, Microsoft is deliberately holding back information in order to hamper interoperability.

Well, um, no duh. This is what they've always done - it's just being extended to the Internet and services at this point. So far Microsoft is promising cooperation with the investigation. My guess is that they'll try to drag things out and keep it out of court for as long as possible without making any actual changes.

Or, "More reasons why EMI is in no position to force changes to the RIAA".

EMI is attempting to cut costs by laying off up to 2000 workers. That's not unusual for companies that have been bought out and whose new owners are focused on fixing the bottom line. But it is a definite sign of how much trouble the music label is in, from a bottom-line perspective.

More troubling are the ongoing revelations that musicians are abandoning the sinking ship. Big names like Paul McCartney and Radiohead, who left last year, have been joined by Britpop act The Verve. Claiming they want "assurances" that the label will remain viable, the group's manager has said they'll be withholding their new album.

In all likelihood, few people care what a band that hasn't had an album in 10 years does now. Except that EMI's name keeps appearing in bad news stories and I just can't see that strengthening their position when pushing for change at the RIAA.

I seem to be all about the events this month. In addition to talk about copyrights and open-source nerd rap, there's a showing this Friday that local folk might want to check out:

The Harvard Film Archive is showing two historical "edgy" films this Friday. Both were made before the first production code was enforced on movie content. Back in the pre-MPAA days filmmakers explored the racy and seamy undersides of Depression-era America. The results led to outrage, outcries, and the start of enforcement of the Production Code in 1934. That lasted until 1967, when the censorship system we know today was first put in place.

The Archive will show the films all weekend - see their posted schedule for details. On Friday the films will be preceded by a talk by Thomas Doherty, author of Hollywood's Censor: Joseph I. Breen and the Production Code Administration.

(Thanks to srl for the initial pointer and for corrections to this posting.)

Or maybe just "wishful thinking."

Relaying heavily from a Variety Magazine piece, Nate Anderson at ars technica asks whether the RIAA could go away, at least in its present form.

The base of the problem is that the RIAA isn't solving the music industry's problem - plummeting sales - and is costing it millions of dollars. From a pure cost perspective, it would make sense to jettison this loser. However, only one of the four big record companies is even making any noises in this direction and that one, EMI, is the smallest of the four. So long as the RIAA enjoys over 75% support I don't see any major changes on the horizon.

Two factors might change that: Variety reports that all four major labels are pushing the RIAA for change; EMI is just the loudest because it has been bought by a private equity firm that is likely much more cost-conscious. Also in the works is a rumored IFPI reorganization. That body represents 1,400 record companies in 75 countries according to Variety. If IFPI is indeed reorganized, it might make sense to fold in the RIAA at the same time.

Speaking of Boston-area science fiction and comics conventions, I've noticed that Open-Source Beats nerd rapper MC Frontalot is scheduled to appear at Anime Boston in 2008, nominally Saturday the 22nd of March.

Shared-world writing has been around a long time. Whether it's someone writing a Sherlock Holmes story long after Doyle's death, or a co-created world like Robert Asprin's Thieves World in which authors cooperate on characters and settings, it's been done. And, honestly it's probably been done on the 'Net before, though I couldn't find any professional examples in my quick search.

Now comes "Shadow Unit". Originally the brainchild of Emma Bull, the writing crew also includes Elizabeth Bear, Will Shetterly, and Sarah Monette. Bear explains the concept in her LJ posting as "...the website for a serial drama in internet form. Or possibly it's a fan site for a TV show that doesn't exist. "

What makes this interesting to me from a Copyfight point of view is the plan to include a variety of materials with a variety of revenue models. Some things will be free; some will be subscription. I imagine some things will be direct sales. it will be interesting to see how readers respond to this kind of experimentation and whether the model is picked up or expanded on. I'll probably blog updates now and then if significant things happen; bookmark the site itself if you want to see first-hand.

Pimping my own event for a moment...

I'll be on a panel at the 2008 Arisia Science Fiction Convention on Sunday night the 20th at 8PM, talking about science, IP law, and creativity. I'm certainly no Cory Doctorow but I'll do my best. I'm not yet sure who the other panelists will be, probably local science fiction/comics writers and other creative types.

Cory Doctorow continues his campaign to educate the SFWA on what modern technology means for authors. Writing in Locus, the science-fiction writer's trade rag, he puts forth the notion that the attention being paid to use and infringement is hopeless and even counter-productive.

Due to the explosive nature of personal writing and publishing, as well as the basic open structure of the net, the only possible way to enforce the kind of infringement management that the Cartel wants would be to "throttle" the most basic right of writing, that of free speech.

We're all aware that the Cartel would gleefully sign up for such a Stalinist regime - their entire model is based on them-as-sole-producers with the vast majority of us positioned only as individual consumer units. But there's no reason for writers or any other real human beings to sign onto this corporate notion. Doctorow points out that not only is it an insanely arrogant position to take, it's actually bad for writers, who are presently at the mercy of big publishing houses.

The streaks of independence that are beginning to be shown in, say, the music business are just not present in the publishing world. You can be as world-famous as a Stephen King or a Neil Gaiman and you still don't publish independently. You go through a major publishing house, you get the word rate your agent is able to negotiate, and you sign over your work to their corporate system.

Writers have griped about the system for as long as I can remember - I don't see that changing anytime soon. But it'd be nice for the writers to realize where their interests lie, and I don't think it's with the Cartel's position, which has little or nothing to do with the right to speak freely.

Illiad weighs in again on the ongoing saga of the Amazon one-click patent.

Alyce Lomax has a piece on fool.com (the Motley Fool investment advice site) this week advising against investing in the music industry. The punchline:

a good sign of a dying industry that investors might want to avoid is when it would rather litigate than innovate, signaling a potential destroyer of value. If it starts to pursue paying customers -- which doesn't seem that outlandish at this point -- then I guess we'll all know the extent of the desperation. Investor, beware.

The music industry is dead, or at least severely damaged, and certainly not the kind of thing someone who wanted her investment to grow would put money into. Lomax has three links in her current piece to earlier Fool writing detailing more Cartel foolishness. Good reading.

I wish I'd seen this in time to post it for peoples' end-of-year buying, but here you go anyway...

RIAA Radar is a site dedicated to offering enough information to make more-informed choices about your music buying, assuming you care about the Copyright Wars.

For the past 6+ years I've refused to buy new CDs retail. I buy direct from artists, I buy used, and I buy DJ white-label disks. Anything else feels like supporting the enemy. What RIAA Radar offers is a set of technological gadgets that let you make more fine-grained distinctions than I make.

For example, you can go to an album's detail page on Amazon.com, press a button and be told that the album is "Safe" in that it's not released by a member of the RIAA. Or not safe, obviously.

There are some nice features, such as a button directly on the RIAA Radar pop-up that lets you submit a correction if you find their conclusion to be in error. They also have some close links to Amazon, which may not please some people, but there's nothing stopping you using the data to take your shopping to whatever retail venue pleases you.

As with many open-source/volunteer software efforts there are some rough edges to the technology, but in general it seems to be a pretty useful gadget to have on a Copyfighter's bookmark bar.

Neil Gaiman's blog today contained this exchange:

Question: I wonder how you feel about both Beowulf & Stardust being among the top 10 most P2P traded movies of the year?

Gaiman: I'm simply glad that they're popular. [...] Because mostly the solution to piracy seems to be providing the pirated thing yourself.

According to Peter Sayer's piece in PC World, Google is in the clear on its AdSense service, but the claims made by Hyperphrase Technologies against the Google Toolbar's autolink function need reexamination.

Let's see if I can unpack that a bit. Back in April of '06, Hyperphrase sued Google for infringement of four patents. That suit was dismissed in a summary judgement. Hyperphrase appealed and got a partial win at the CAFC on Wednesday of this week.

The items at issue relate to two of the patents, and the ability that the AutoLink technology has to parse certain fragments out of Web pages and turn them into links. One classic demo for this is to parse an ISBN or other book identifier out of a paragraph of text and then wrap an href around that identifier so that the identifier becomes a link to an online seller of that book.

Since this is Copyfight and not one of my interaction design lists, I'll elide the snide commentary about how thoroughly obnoxious this feature is, both from a presentation point of view and from the point of view of asserting control over the browsing experience. OK, maybe I won't totally elide them. This is relevant because astute readers may remember an old Microsoft feature called "SmartTags" that did something substantially similar and was roundly thrashed by users and reviewers who hated it. Well, it turns out Hyperphrase sued MSFT back in '03 over SmartTags and had their claims summarily thrown out back then.

Some people are slow learners, I guess, or just really persistent.

Yardena Arar has a piece in PC World this month titled "The 7 Most Annoying Developments in Software". The premise is that software has developed into a serious annoyance, which isn't far wrong in my experience.

The story begins with "The Antipiracy Inquisition" and moves from there to DRM. Unfortunately Arar doesn't go much beyond the surface annoyances to talk about why these developments have happened and how they became so widespread. The result is an amusing and light piece, quickly read and probably just as quickly forgotten.

Just over a year ago I posed the question What Does IP Have To Do With Who Directs "The Hobbit"?

Today, Ain't It Cool News is reporting that "Team Jackson, New Line, and MGM have made nice" and the Hobbit movie (and a sequel) are going to go forward. The press release doesn't mention Tolkien Enterprises, though. I wonder what role they played in this.

Emma Bull, herself a writer, blogs that the writer's strike "isn't a copyright issue." I think she's thinking about something else, because this sure looks like a copyfight issue if ever I saw one. The issue here is that the writers have no rights. They signed away all those rights and now they're in the (extremely weak) position of demanding things on the basis of fairness and the (somewhat stronger) threat of withholding future works.

She also links to a couple of interesting items. One a video from an actor noting that their contract comes up in June and strongly hinting that they'll be taking the Cartel to the mat over these issues.

Over on United Hollywood, there's an announcement that the WGA will demand individual negotations with movie production companies. Possibly they think they can crack the Cartel this way, or maybe they believe the AMPTP is adding an extra layer of intransigence. Not unlike, say, the RIAA or MPAA. Not that I'm of the opinion that these organizations suck large hairy rocks, or anything.

Back in 2005, the Cartel argued in front of the Supreme Court admitting in part that it was legal to rip one's own CDs. They've regretted that ever since and have hemmed and hawed about it.

Now they're in open (court) denial, claiming precisely the opposite. Props to PATNEWS's Greg Aharonian who pointed to an online PDF of an RIAA brief in Atlantic Recording Corporation et al v Pamela and Jeffrey Howell. If you scroll forward to page 15 of the brief you find language asserting that the Howells converted their own recordings (presumably CDs) to MP3 format and in this process "they are no longer the authorized copies."

It appears that Howell is self-representing. I wonder if he's aware of Grokster or if someone would like to make him aware...

Or should that be "weasel"? Anyway, John Bringardner has a fascinating piece up this week on law.com on Ray Niro. If that name is at all familiar to you it may be because the term "patent troll" was initially coined to describe the activities of Niro and his firm. So where is our hero today? Bringardner uses the polite phrase "controversial situations" - I call it a soap opera.

In episode 1, Niro won a big judgement for Philip Jackson against Glenayre Electronics Inc. on a patent infringement case. However, the judgement was reduced by more than 75% on appeal, leading Jackson to sue Niro for malpractice.

In episode 2, Niro counter-sued Jackson, in part on the grounds that the patent, which he had successfully enforced, was invalid. The two parties settled.

In episode 3, a blogger calling himself "Troll Tracker" started publicly and repeatedly using the word 'troll' to refer to Niro, who didn't much like it. In response, Niro threatened the blogger with a charge of violating a patent, number 5,253,341.

The 341 patent has a long and bloody history. Niro tried to use this patent once before to, as Bringardner puts it, "silence a vocal critic." Niro's lawsuit led to the patent being re-examined and most of its claims invalidated. But there is still one surviving claim, though it's not clear to me how that claim (about image compression) relates to public criticism of this particular patent troll.

In this week's episode, Niro is offering USD 5000 to anyone who can lead him to the identity of the so-far-anonymous "Troll Tracker" blogger.

Finally, Bringardner notes that Troll Tracker has been remarkably effective at publicizing some of the inner machinations of Niro's patent suits, particularly his relationship with one Scott Harris, a now-former partner at the law firm of Fish & Richardson. He's "former partner" in part because Troll Tracker revealed that he was behind a Niro lawsuit against Google, which happens to be an F&R client.

Emma Clarke is known to Londoners and visitors to that city as the voice behind the pleasant-yet-ubiquitous "mind the gap" reminders. On her Web site, she has a set of MP3 spoof files, apparently free for the remix-ready. My personal favorite is the Sudoku one...

As I wrote a couple months ago, Robert X Cringely has something of a significant interest in the ongoing demise of Burst. The company has gone from being a tech innovator to a shell that's suing major players in an attempt to recover something. A couple years ago, Microsoft bought patent licenses for $60 million. Apple, potentially a much bigger violator, decided it would rather fight.

Apple and Burst couldn't come to license terms and Apple sued. Last week, carefully hidden in the pre-Thanksgiving rush, the two sides announced a settlement for a mere $10 million. Cringely's 22 Nov column covers the settlement from his own particular angle.

Cringely points out that the timing of the settlement is odd and seems to have been intended to make the story go away quietly. He may be right. I did a quick check of sites like ars technica and CNET, which have covered the Burst story in the past. None have stories up about the settlement, even though I gave them a couple days to catch up.

The next question is why such a small sum - given Apple's dominant position in the digital media selling business it might have been possible to sue them for hundreds of millions in claimed infringement. Cringely also points out that it's odd for companies to downplay a settlement to this extent. Usually at least one side wants to claim public victory.

One possible clue may be the decision earlier this month to dismiss 14 of the Burst patent claims on the basis of "obviousness." Patent lawyers are still trying to figure out what to make of these new standards and Burst may have feared that even though the judge was willing to let the case go forward on the remaining 22 claims, those claims might have been knocked out on various appeals leaving the company not only with no settlement but with no valid patents.

In essence, litigation is always a risky maneuver and Burst may have decided the risk was too big so now was the time to walk away with what they could get.

Cringely's theory is that Burst is trying to clear the decks for its next move, which will depend on issuance of patents covering DVR technology. Burst agreed not to sue Apple on the basis of those patents, which makes TiVo the obvious next target. I guess we'll have to wait for those patents to see what use can be made of them.

The Reg reported this week that Prince and a trio of popular fan sites are in talks to settle copyright issues. As I noted a couple months back, the purple one has been spraying around takedown notices, aimed primarily at big sites like eBay and YouTube but also catching fan sites.

Insulting one's fans is not much of a smart move, not that the Cartel would ever care. Hopefully Prince will take a more enlightened path.

If you have a few minutes to spare, you could do a lot worse than to read Demonbaby's "When Pigs Fly..." rant. It's a history of the digital music part of the Copyright Wars, written from the point of view of someone who began as an industry insider (CD designer) and ended up mad as hell at the Cartel that crushed Oink.

There's nothing terribly new or revolutionary in the essay, but it does span the period nicely, in ranterrific fashion.

From personal experience I can tell you that the big labels are beyond clueless in the digital world - their ideas are out-dated, their methods make no sense, and every decision is hampered by miles and miles of legal tape, copyright restrictions, and corporate interests.

Yep, pretty much what I've been saying for (dear lord is it really) eight years now.

Some guy who is not Jon Stewart but could be, and some guy who would have tried out for Monty Python's Flying Circus had he been able, explain the basic contention of the writer's strike: http://www.youtube.com/watch?v=PzRHlpEmr0w

Copyfight reader Eric Anderson wrote to tell me that he's put his dissertation online under a Creative Commons license. The topic is "Copyright and Culture in the United States, 1831-1891."

The work (which I confess I haven't read yet, at 231 pages) may some day appear as a book but is free to read online now. I'll let Eric speak for himself:

Although generally forgotten today, the nineteenth century US was absolutely rife with copyright-related controversy and excitement, including international squabbling, celebrity grandstanding, new technology, corporate exploitation, and ferocious arguments about piracy, reprinting, and the effects of copyright law.

Then, as now, copyright was very important to a small group of people (e.g. authors and publishers), and slightly important to larger groups (e.g. consumers and readers). However, these various larger groups did have definite ideas about copyright, its function, and its purpose. Many of these ideas are relevant today.

If other readers are doing scholastic work on copyfight-related issues please do send me info and links.

Lots of writers are blogging during and about the strike. Emma Bull pointed to this post from Kay Reindl. The bit that is most relevant to Copyfight is where she expresses her indignation that the studios don't want to share download revenue with the writers:

When you illegally download something and the network doesn't get any money for it, they call it piracy. But when you download something or watch streaming video with commercials and the writers don't get any money for it, the networks call it promotion. DON'T LET THEM GET AWAY WITH THIS. Steal from the networks. You KNOW how much they hate it. But we're not supposed to hate it if they steal from us. (emphasis in the original)

I'm not particularly keen on a recommendation to steal, even from the Cartel thieves, but it definitely captures the spirit of what this debate is about. Kay Reindl has been on the outside and on the inside long enough to know what matters to writers, and it sure isn't the Cartel's view on what matters.

United Hollywood, the unofficial blog site of the writer's strike, has put out a video explaining residuals and how low they are. It's very direct and folksy.

Frankly I had no idea that the writers are only get 4 cents on a USD 20 DVD sale. I do know that the Cartel wants to give the writers nothing for Internet (re)transmissions. No great shock there.

The blog is interesting if you care about the minutae of the strike. They've got picket line videos (giant blow-up rat anyone?), good quotes and reader responses, and content that generally gives you a view into the human beings who are out on the picket lines. Whether or not you agree with the strike, I think it's worth understanding their position.

Every so often I like to prop for various online sites that are trying to open up scientific content. PLoS, the Public Library of Science, is probably the best known.

Today I want to point you to "Many Eyes", an IBM-sponsored site for the free sharing of data visualizations. Data viz is a long-standing hobby of mine. As an interaction designer, much of the problem space I work in comes down to getting people to notice the right things at the right time, usually from a visual representation.

Many Eyes is still labeled "beta" but they appear to be trying to do a whole lot of things, including providing community features and tools for participants to create new visualizations that are organized into topic hubs. They list their goal as

to "democratize" visualization and to enable a new social kind of data analysis.

(Full disclosure: one of the main forces behind Many Eyes is Fernanda Viégas, whom I knew back the Media Lab days.)

Continuing its long-running (nine years! how slow are these people?) tradition of smashing blobs of mercury with hammers, the Cartel have forced the popular torrent-tracking site Oink to shut down. Dramatic police raids and exaggerated quotes make for good show, if nothing else.

You really should visit that page, if only for amusement value. Mmm, tasty waffles.

Oink was a private, members-only site that facilitated trading. If you're trading your own originals that's legal. If you're making copies and swapp