Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.
Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.
Somehow I missed this when it went up a couple weeks ago: David Post of Volokh Conspiracy writes about the Supreme Court's decision to review Kirtsaeng v John Wiley. He calls the law involved "baffling" and "baroque" and provides good background on first-sale doctrine and the cases that have led us to the present (broken) situation.
It's short on detail and long on concept, but it's still worth reading as it rattles off the very long list of people and things and responsibilities involved in making a major multi-faceted project come together. As I wrote back in April when I signed up for the Kickstarter, this particular vision of music's future isn't just about a band, an album, a tour. It's about bringing together dozens of creative people each contributing to a multi-faceted, multi-experience endeavor. And that kind of thing doesn't come cheap, even when many (most?) of the people involved are your friends and colleagues who share your vision and dedication.
Everyone needs to eat and artists need to get paid. If I have any criticism of AFP's approach here it's that she's very dedicated to pointing out that even if the Kickstarter clears a million bucks she's not going to get rich off it. That is important, especially when you're asking people up-front to give money and trust they're going to get something worthwhile down the road. As Palmer says, "...paying now for value later is what historically would’ve been a label’s primary purpose."
Since we (the Kickstarter backers) are taking that role, it's important we feel we're getting value for our invested dollars. Fine and good. But I'm very interested in this as a sustainable business model. If Palmer is right and the project looks only to break even then that's not good enough. The Kickstarter becomes an event, not a repeatable model. In my opinion, Palmer and the people who work on this (her band, her artists, etc.) should be making money this way, because art needs to be sustained, not just one-off events, and right now we don't have a better way to sustain art than to compensate directly the creative people involved.
What Drew Wilson over at ZeroPaid has done in this past month is lay out in painstaking extensive detail just exactly what's wrong with the Cartel's propaganda-masquerading-as-science. The link above takes you to his conclusion piece and from there you can link back to the individual stories. It's a lot of reading, particularly if you want to read the original research - there are links to every published paper on which the analysis draws.
In science jargon what Wilson is doing is a meta-analysis. He's bringing together disparate research work over a period of time that examines multiple aspects of a single topic. Meta-analyses and meta-studies are in the news a lot these days as they tend to throw into question long-held assumptions such as the need/safety of hormone replacement therapy or PSA testing. Meta-analyses are also a good way to shed light on situations where there are conflicts of opinion and each side can bring some facts to support its claims.
In Wilson's meta-analysis he draws on studies ranging over the years 2004-2011. By taking studies from different periods of time, the analysis also helps guard against short-term trends. As we noted when LimeWire was shut down a couple years ago, significant events can produce sudden blips in long-term data trends. A meta-analysis should help avoid over-reliance on these blips.
Without stealing too much thunder from Wilson's work I wanted to quote what I think is the most important conclusion that can be drawn from this research:
[L]osses due to file-sharing are statistically indistinguishable from zero.
Winston Hide, the now-former editor, is a teacher at Harvard School of Public Health, and his resignation reasoning centered around his feeling that Elsevier's high-priced model was not compatible with the needs of people in developing countries. Hide, who is South African, has some direct experience with trying to do research on the continent where, he says:
The vast majority of biomedical scientists in Africa attempt to perform globally competitive research without up-to-date access to the wealth of biomedical literature taken for granted at western institutions.
Hide now plans to devote his time to promotion of open-access journals. He also notes that being on the editorial board of a prestigious journal is an important career position and resigning may in fact impede his career advancement. I still believe that the one true way to break the lock that for-profit publishers have on this business is for the tenure- and promotion-review boards of major institutions to change their processes, and I'm not seeing any movement yet in that direction. But it's still early, and academe is slow to change.
(h/t Donna Wentworth and Peter Suber of the Harvard Open Access Project for the original pointer. The Berkman Center hosts the HOAP as well as this blog but there is no direct affiliation.)
Writing for Forbes last week, Phil Johnson profiles the modern-day re-creation of the venerable Harvard Book Store. When I moved to Cambridge in the pre-Web days it boasted more bookstores (and ice cream parlors) per square meter than any other place on earth. Awesome stuff. But over the years they've been dying out, like small independent and big chain bookstores everywhere. When the biggest of the lot went under it seemed like confirmation that nothing could compete with Amazon and other online offerings.
But lo, Harvard Book Store is back, under the direction of Jeff Mayersohn, who previously worked in high tech - Sonus Networks and BBN are both on his profile. And Mayersohn knows that Harvard Book Store has to be able to take on the Amazon challenge and win. So far, so good. Forbes reports "double digit sales growth month by month over the last year."
How's he doing it? Innovation and service. Innovation: he's using print-on-demand technology to satisfy customers' instant-gratification desires. "The Espresso Book Machine" as it's called has a built-in inventory of 5,000,000 titles and can be used for custom publishing. The output is high quality, and if you know what you want in advance you can even order your POD book on-line.
Service: you can get your POD book delivered locally by pedal-truck or bicycle, which appeals to the Cambridge-area green-conscious buyers. Know your customer is an ancient sales adage that Mayersohn has taken to heart. And if you go into the store you get:
fanatical attention to customer service with an unrivaled staff of passionate and educated booksellers.
Quick adaptation, a multi-pronged sales strategy, and an eye for winning details. Maybe it really does take a technophile to save a brick-and-mortar establishment. Are any other sellers out there paying attention?
I recently got to hear Neal Stephenson talk at MIT. As usual, he was a pleasure*, and the talk ranged over a wide variety of topics, from why America is in a massive idea deficit to why we should all stand up more and sit down less. What he didn't really discuss, to my disappointment, was the Mongoliad. Fortunately, Mark Teppo's "Big Idea" post in Scalzi's Whatever gives a little hint of what's going on here.
The Mongoliad on offer here is a book - a collaborative work. But what's of interest to Copyfight is the structure and entity that produced this book. To quote Teppo:
[W]e formed a company whose goal was to realize a new paradigm in publishing methodology, and to promulgate an argument that transmedia empires could be built using small, highly agile teams that could shift direction quickly and efficiently based on customer need and reaction. Do more of what the fans like; less of what causes them to make the ‘meh’ noise.
This could be very interesting to watch. We're starting to see several individual names break out of the existing mold - Amanda Palmer obviously, but also look at Rowling's decision on how she wanted the Potter e-books handled. But these are all individuals. The obvious next step up is small groups of creative people, and seeing which parts of what business models scale.
*Though I was sad he utterly flubbed my question on design. He confused design aesthetic with implementation shoddiness. C'est la vie.
To review quickly: a feature of the Copyright Act that went into force in 1978 gave record companies 35 years' worth of profits from albums, after which the artists would be allowed to reclaim their rights in the music. Several artists have done so, and the Cartel is fighting them. According to Larry Rohter's NY Times piece linked above, Willis's claim was contested by Scorpio Music and Can’t Stop Productions, who had sued to stop him exercising his termination rights.
As I discussed in the August entry, Scorpio and Can't Stop initially contended that Willis wrote works for hire, meaning that he would have given up all rights. Chief Judge Barry T. Moskowitz of LA's Federal District Court, appeared set to reject that claim so it was withdrawn. Now Willis has back "his share" of ownership in 33 Village People songs.
That "his share" phrase leaves a lot of wiggle room still because the judge has to determine what Willis's share is. There's going to be a lot of unpleasant tangles yet to sort on this one, but it remains significant as the first case to test termination rights and the work-for-hire theory.
(h/t to +Rowan McVey and +Network XXIII News for the original pointer)
Now comes Jon Mitchell on ReadWriteWeb, reporting that "Kindle Sales Plummet". He claims that sucks but I think he's exaggerating. Anyway, Amazon doesn't exactly report its sales of Kindles, so it takes a little bit of sleuthing to infer this. Mainly the inference comes from E Ink Holdings, which supplies the screens for Kindles, reporting that it had a quarterly loss due to a lack of orders from its biggest customer (aka Amazon).
What makes this double-interesting is that it appears that sales of Kindle Fires are also dropping, too. ISC reported that sales of all Android-based tablets dropped in Q1 2012, including Kindle Fires. This isn't hugely surprising to me, given both Apple's splashy announcements and that fact that Android tablets had a stronger-than-expected holiday season in 2011. It will be interesting to see how that holds up over the next couple of quarters.
At the same time, I'm interested to see that more publishers (of news, this time) are backing away from iPad-as-platform. As an MIT alum I got a notice from Tech Review that they are ditching their iPad app. The reasons are strictly financial - it cost a bundle and made no money - but it's a strong cautionary tale for people and organizations that are thinking about taking the Apple golden handcuffs. TR notes that the Financial Times also made a similar decision recently, and that both TR and FT have moved to a free/open model based off HTML5.
I feel like we're in the very early stages of a chess game - most of the things being moved are pawns, and people are just beginning to consider how they're going to achieve strategic objectives like "control the center of the board". I would not be surprised to see tentative moves and hanging back from most of the major players through the next 6-8 months as everyone waits to see how things shake out and what happens to early risk-takers.
She's also emphatic about another point, which you can read on the Kickstarter site: we lead, the media follows. If you're going to be successful in the independent model of the early-21st century then you make the news yourself. You do it by networking, word of mouth, taking things viral, making info in easily accessible places, in easily reposted (unlocked!) forms, etc. One way to look at this is as a failure of traditional media; another way to look at it as an opportunity for new businesses. There should be people out there setting up companies that are devoted to helping people like Palmer do this because, really, you need some kind of management when your sponsor base is over 10,000 and growing.
I thought this bit was particularly apropos:
I've seen people complaining that this is easy for me to do because I got my start on a major label. It's totally true that the label helped me and my band get known. But after that, the future was up to me. It bought me nothing but a headstart, and I used it. I could have stopped working hard and connecting in 2009. If I'd done that, and then popped up out of nowhere in 2012 to kickstart a solo record in 2012, my album would probably get funded to the tune of $10k...if I was lucky. There are huge ex-major label artists (pointless to name names) who have tried the crowd-funding method and failed dramatically, mostly because they didn't have the online relationship with their fans to rely on.
I was sadly amused to revisit the column today in preparation for writing this piece and find on the page the notice that "Comments on this page are now closed." I'm trying to formulate a coherent response that is not laughing out loud at the foolishness and backward-thinking-ness of a site that would close comments on a column, let alone close comments on a column that's not even a week old.
Dear Guardian, comments are lifeblood. You want them. You need them. See above, where I spend my time weeding out spam comments? That's because I treasure the real feedback I get from readers. I love that my first tentative query about Createspace is one of the most commented-on pieces on this blog, over four years later. Do you think Amanda Palmer would ever close comments on something she posted? I think not.
Get with the program, Guardian. You're not doing yourselves, your readers, or your writers any favors here.
First, Target isn't going to sell Kindles anymore. The problem isn't the Kindle per se. It's that Amazon has been using physical retailers as its (unpaid) showrooms. Amazon has encouraged people to go shop in physical stores, then price-compare and buy from Amazon - even offering a discount for doing so. That may be a few bucks in consumers' pockets, but it's a big hit to the brick-and-mortar retailers who are losing customers right out of their showrooms.
Target is still a small fraction of Kindle sales, even though it's the biggest non-Amazon seller. So this mostly amounts to a symbolic middle finger to Amazon, since Target will continue to carry iPad and Nook devices. It's worth noting that both Apple and B&N have large physical presences and as such are much more careful about how the online and retail shopping experiences merge.
Hernandez paints a picture of Amazon as "heavy-handed" and notes that many authors are opting for smaller publishers who offer more freedom and leave the authors more in control, such as Bookbaby and Smashwords. Harkening back to the first story, Hernandez quotes Smashwords founder Mark Coker as saying
KDP Select [is] using self-published authors as pawns [in] a broader campaign to wage war against retail competitors
That's another bad move on Amazon's part, but they're still the 500 lb gorilla in the room. Authors ignore them at some risk. Let's just hope the gorilla decides to be better-behaved.
(full disclosure: a couple of my author friends have chosen to go with Smashwords, but I have no incentive to promote that alternative. As noted, I don't even own an e-reader yet.)
In a Whatever blog entry today, John Scalzi gives his feelings on Amanda Palmer's latest Kickstarter project. He addresses in depth several of the issues I mentioned in my May Day follow-up post: Palmer's years of hard work to get to this point, her intense engagement with her fans, etc. Scalzi also notes that although Palmer has raised what appears to be a huge sum she's not going to pocket more than a fraction of it, and she'll have to work damned hard for that fraction.
One of the little-reported aspects of the current situation in academic research publishing is that much (most?) of the work that is put into these very expensive academic journals is paid for by the taxpayer. In the US there are funding agencies like NIH, CDC and of course ARPA that funnel taxpayer dollars to researchers. In the UK and elsewhere there are similar agencies and grant programs that make this research possible.
Given, then, that the work was paid for by the public it seems a wholly fair question to ask by what rights are the fruits of that work concealed from the public behind expensive paywalls. Wales acknowledges that academic publishers bring value to the process of research publication. However, adding value doesn't equate to having a monopoly lock. Or at least it shouldn't. The effort, dubbed the "Gateway to Research project", has about two years, and currently about UKP 2 million to create an open access environment. They're working with several partners in the UK, including representatives from academia, librarians, and publishers.
There are a number of thorny questions to be hashed out - it's not just as simple as moving research papers from expensive journals to a free Web site. How will research be accessed? How will it be vetted? What processes are necessary for updating or outright retraction of research? What other research materials might be valuable in such a portal - personally I'd like to see the inclusion of things like molecular models, part descriptions, software simulations, data sets, data analysis tools and much more. But can anyone make head or tail of this if it all gets dumped into one portal?
All of these are good and tough questions. Now the next question we want to be asking is: why limit this to just the UK? Where is the US effort?
(h/t Donna Wentworth... yes THAT Donna Wentworth for the pointer)
Last year the event attracted little media attention (see PCWorld's coverage from that day) and, sadly, it appears that little notice will be given again this year.
As the site notes, there has been slow progress on the de-DRM-ing fronts of the past. In particular, much more music is available for download unencumbered now than in the past. But the new fronts that have opened up - particularly ebooks and streaming music/video - remain badly broken and un-free for legal, private uses because of DRM.
DRM is bad business, and bad user experience. Let's get some attention on the need to make it part of the past.
Both of the stories behind yesterday's pair of posts are getting more commentary. Here are a couple quickies and thoughts to go with them:
Michael Marotta writes for the Phoenix on Palmer's choice to skip the major-label route. The Phoenix, being Boston's alternative paper, was one of the first media outlets to notice and publicize Palmer and the Dresden Dolls. Thus, she writes them from time to time.
In her letter this time she points out that even though the Kickstarter has blown the roof off its fundraising goal that still only represents a few thousand fans. Any major-label release that sold that few copies would be considered a flop, and the artist would make no money, never mind that a major label couldn't possibly manage to put out the kind of complex multi-pronged project that Palmer is fundraising for.
In response to yesterday's post, Luis Cruz asked the question of how well this model would work for someone who isn't already established with a fan base. It's a fair and unfair question at the same time. The answer is we don't really know - there are thousands of people trying to find their way through Kickstarter, maxing out their credit cards, busking, playing open mic nights, etc. A few will make it via each of these routes but most won't. But they don't have a lot of alternatives - the number of acts that will make it via the major-label last-century model is also minuscule.
Each year we see a few creative types that seem to break out (Jonathan Coulton, Felicia Day, etc.) and each has a unique path to present success. There doesn't seem to be a good general model, but I think we're starting to see certain elements in common. For example, intense fan service, a hawk eye on the business details, and a willingness to roll with the punches and adapt all seem to be necessary ingredients. Palmer's success didn't come overnight - Dresden Dolls formed in 2000 I think - which means she's busted ass for over a decade now. What she's doing now would not have been possible in 2000 but that says more about the Internet age than about Palmer.
On the Microsoft/B&N partnership, the blog entry by Tobias Buckell is typical of the reactions I'm seeing. Buckell's point, which I think is spot-on, is that this is not at all about a Windows 8 Nook. It's about the merging of two software ecosystems and the possibilities that opens up. And also that neither big entity seems to have concrete plans for how that's going to happen. Hell, they couldn't even figure out a real final name for their joint venture. This makes me think the whole thing was rushed and not necessarily well thought-out.
Above I mentioned "rolling with the punches." In particular I think a key element of this is being willing to re-invent one's self-conception. Day moved from doing standard television shows to running her own YouTube channel. Palmer has always had theatrical elements as part of her musical acts, but lately she's added spoken word, poetry, and art/photography. What makes me doubt that the MS/B&N merger will work is that I can't see either company pivoting quickly enough to re-imagine themselves in new ways. But a big bankroll buys you a lot, not least of it time, so I'm not willing to write them off entirely just yet.
In juxtaposition to the previous story, which is all about big companies sticking with last year's model, I bring you yet another Kickstarter from Amada Palmer, who chucked over a half-million dollar big-budget studio production in favor of getting to do it herself, if people fund her. And, she admits, maybe make some money for herself this way, even though you can get the entire album as digital download for a buck.
Everything about this project screams 'forward-thinking': it's crowd-funded (via Kickstarter). There is an option for patronage beyond what Kickstarter allows. The project involves multiple artists, all retaining control of their work. The product is multi-faceted (album AND book AND art tour AND maybe more). The experience is multi-layered - even tickets to the shows are exclusively on Kickstarter. The promotion is direct and from the heart - Ms. Palmer is not ashamed to say "fucking" nor is she ashamed to express her love for her fans.
This is the sort of thing you can't buy with astro-turfing. This is the sort of thing that will blaze trails for this century's creative artists. I confess I am not a huge fan of Ms. Palmer's music and her stage acts. But I admire the hell out of what she's doing.
This seems like a bad and backward-thinking way for B&N to go, to me. As we've been discussing this month, dedicated e-readers are going to die, including Nook. Tablets running things like Windows 8 will replace these devices. Of course B&N wants there to be a Nook app for Windows 8. But it also wants one for iPad and Android tablets. Microsoft's money might get them first place in the development line, but it can't possibly buy exclusivity. B&N is also probably being foolish to prioritize a Windows-OS version, in that Windows 8 has such a tiny user-base. A Nook app for either of the other big sellers would likely reach far more of B&N's customers.
The PW piece has a bit of puffery about how they're going to do unspecified other things, and combine assets and blah blah. It includes blather about B&N's physical stores, about which Microsoft cares not one whit, and has not one word about the one truly revolutionary thing to happen in e-books this year: Tom Doherty imprints' decision to dump DRM.
All of which tells me they don't have an actual business model. That's kind of a shame, actually, because I can think of at least two that would be absolutely rocking, given these two companies' expertise and current footprints.
Stross has been careful to state that he had no insider view that Tom Doherty Associates - the publishers who put out the Tor, Forge, and other lines of books - were going to make a big move to drop DRM. But even without that knowledge, Stross put together what he saw as the business case for getting rid of DRM. Long-time readers here will know that I am a big fan of the creators should get paid viewpoint, but that we also share the view put forth by people like Cory Doctorow that the actual business effect of DRM is not to control illegal copying, but rather to hand the manufacturers of ebook readers a stranglehold on everyone and everything.
It's not going to surprise any of my readers that Stross concludes that the only way to break Amazon's stranglehold is to drop DRM. In a DRM-free world, you can buy a book that is readable on a Kindle and on a Nook and on an iPad. Thus, it doesn't matter if you buy that book from Amazon. It may be the case that Amazon offers you a discount, or a frequent-buyer program, or some other incentive. The publishers can't guarantee that Amazon won't be able to dominate the market by virtue of its strong competitive position, wide inventory of products, and other advantages. What they can guarantee is that their readers will no longer be locked into a Kindle.
Although Stross doesn't say this directly, I feel this also opens up a world of other direct-sale opportunities for publishers. I mentioned Emily Books a couple weeks back, who are trying to operate as independents. In a DRM-free world there's no reason that a big-name publisher can't do a deal with Emily Books or any of a thousand other small, high-value, curated ebook outfits. Get DRM-free versions of Emily Books on every device, with a publisher like Tom Doherty Associates lending its marketing and mass distribution expertise and getting a cut of the profits. I can think up at least six more profitable-to-the-publisher ways to build business in a DRM-free work. Stross's piece claims that dropping DRM won't lead to immediate revenue gains, but I think that's true only if you consider going DRM-free as a stand-alone action rather than part of a comprehensive business strategy.
I was also amused to see that Stross also predicts the demise of the dedicated e-reader, given that most people I talk to think I'm nuts when I say that. He's more generous than I was, giving the stand-alone reader "2-3 years possibly, 5 years probably" where I think that by this time next year everyone will be talking about the decline of the device as tablets ascend.
Lastly, I wanted to bring to your attention a fascinating piece that appeared yesterday on PaidContent, '"Why I break DRM on e-books”: A publishing exec speaks out.' In this column, Laura Hazard Owen tells the story of one (obviously anonymous) executive from the publishing industry whom she introduced to the common practice of unlocking a purchased book so it can be read anywhere.
Exec, as she dubs her story protagonist, admits to being influenced by Stross's writing. Exec realized that s/he had no control over the ability to do perfectly legal things with purchased ebooks. Exec isn't sharing the cracked books with anyone, let alone putting them out for general downloading. Exec just wants to be able to read the stuff, and has figured out that the sole purpose of DRM is to control the consumer. Sadly, even though Exec admits to a decision to break every DRMed ebook from now on it doesn't appear that Exec will do anything to change stupid corporate policies that put the DRM there in the first place.
Still, admitting you have a problem is the first step to recovery, right? Maybe we should set up a 12-step program for all the members of the Cartel who are addicted to DRM.
Yes, Tor and Forge will soon be publishing their e-book titles in a DRM-free way. Not just some titles - the entirety of their lines are scheduled to get unshackled. I still need to digest this and think about it for a while before I have a reaction to post, so in the meantime let me link you to two thoughtful guys who have a fair bit to say from the inside.
To review: academics who publish provide free material and free labor to big publishers like Elsevier who take this free material and package it into things like journals that are then sold at great expense to places like libraries. And by "great expense" I mean tens of thousands of dollars per journal per year. More on that below.
Often, to be published requires not just giving up your time and energy but also all kinds of rights on your own writing. Some academic publishers will, for example, forbid authors from having copies of their own papers on their own Web sites. Sometimes you're not allowed to submit the entire body of your writing to a scientific indexing service, just an abstract. Both of these hurt authors by making their work harder to find and read, but bring more revenue to the publishers who charge for things like reprints, access to their walled "digital libraries," and so on.
In his column, Naughton reviews the costs, power structures, and "intrinsic absurdity" of the academic publishing racket, pointing out among other things that at least one estimate of the free labor provided for peer reviewing states its value at over UKP 165,000,000. He notes that Tim Gowers' petition is but one of many gaining traction and that even some research-funding bodies are beginning to require that people who accept their funding agree to publication that isn't behind a paywall.
About that "pay" bit... Boingboing recently highlighted a letter from Harvard Library's Faculty Advisory Council. In it, the Council expresses the view that the costs of these journals will soon put the library out of business. Remember those tens of thousands I mentioned? They add up really fast, particularly when you want to run a world-class research library for a multi-disciplinary faculty. Harvard (or MIT or Boston University or Tufts, just to name four world-class institutions close to where I sit) doesn't just have to keep in the high-prestige journals in biology. They also need the journals in mathematics, physics, chemistry, astronomy, computer science, mechanical engineering, and on and on and on. They don't have the option to leave out some.
The result, at least in the case of Harvard, is an annual cost just for journals of USD 3,750,000. That doesn't count access fees, reprint fees, and other costs. And the memorandum points out that the rate of increase in these costs far exceeds other measures such as the rise in tuition costs, inflation, and so on. In plain English, the publishers are gouging ever harder.
So, where does that leave us? Libraries are grumbling, funders are disquieted, and individual faculty members are happy to sign petitions of protest. But none of this addresses what I see as the key issue: faculty give these journals this much power because they rest entire careers on them. You get tenure based on your academic publications. You submit your publications list when you apply for grants and funding. Look at any academic C.V. and you'll see that it's structured so that the big name journals in which the person has published are listed promptly. It's one of the first things that gets looked at when someone applies for an academic job.
Until that changes, nothing is going to change. I'm sorry to be so consistently negative but "publish or perish" is still the law of the ivory tower.
A quick follow-up to yesterday's long discourse on why Twitter's IPA is doomed. Part of the analysis of why is my differing opinion on how good engineers think. Today I direct your attention to "Why I joined Microsoft" by James Whittaker. He's been at MS, left for Google, and has now gone back. In the blog he explains why, including his view that MS is where he can "find work [to] be passionate about." Oh, and it "has the right collection of IP, product segment leadership and technical assets to be a disruptor." That is the calculus of a senior developer who's been in several environments and has his choice of where to work next. If you want to fashion an intellectual property agreement that is going to change the game, you need to understand the people whom you expect to sign that agreement.
Start by reading the agreement as posted to Github. There's a lot of discussion around it, and the specific language will likely change, but the basic agreement is very short and readable. It is intended to replace the default blanket assignment that is used in most industries. In the default you give the company everything, and they can do anything with it. Your name still appears on the patent, but you assign all rights to your employer - usually as a consideration of employment, meaning you can't work (at tech, bio, pharma, or any other IP-using company) unless you agree to this.
The company then is free to use the patents however it wishes. You may recall that this was the topic of some outrage about a month ago, when Andy Baio complained bitterly in a WIRED piece about how Yahoo was using patents (not his, keep in mind, but he was upset anyway). This freedom is restricted under Twitter's proposed IPA, which specifically limits companies' ability to use assigned patents to what the IPA calls "Defensive Purposes."
In theory, a company with this agreement in place could use patents to defend itself, but not to initiate patent-enforcement action. That's a nice theory, but there are two problems I see with it. The first, and smaller problem, is that the way the language of the IPA currently stands, it permits IPA-covered patents to be asserted
against an Entity that has filed, maintained, or voluntarily participated in a patent infringement lawsuit against another in the past ten years
Which is to say, everybody. Really, if you can name a going tech/bio/pharma concern that hasn't been involved in patent litigation in the past 10 years I'll be shocked. It's probably not 100%, but it's certainly 80% and all the big players are in those 80%. So unless the IPA's language is changed, its effect will be nil.
But leave that aside for the moment, and consider what it means to be a publicly traded corporation. It means you are legally bound to do whatever increases shareholder value. Voluntarily disarming yourself in this way leaves you at a competitive disadvantage against other players in your marketplace who are free to infringe your patents, so long as they don't sue. Can you imagine trying to go before your biggest shareholders and say "Well, yes, I'm going to allow our competitors to continue infringing all these patents even though we think we have a good legal case."
You'd be fired in a heartbeat, and with very good justification. You'd be lucky if you didn't find yourself on the wrong end of a shareholder lawsuit. Private companies can get something of a pass on this kind of thing as they don't have the same legal obligations to shareholders. In addition, private companies can be much more easily molded to the personalities of the founders and controlling early stakeholders. But big public companies? The Apples, IBMs, HPs, GEs, Genzymes, Motorolas, Honeywells, etc? They're all going to continue to use patents offensively to protect their markets and products. I hear Google used to be a not-evil place, too.
The IPA is not an inherently bad idea. I applaud Messinger and Twitter for thinking innovatively and trying to get something new started. But I think that the press are being vastly overoptimistic about the likelihood of success here; for example, see Joe Brockmeier's piece.
He lists four reasons why companies should adopt the IPA, which come down to hoping a lot. #1 is that developers will prefer to work at an IPA-using company. I'm sorry but 99.999% of developers don't think about patents and certainly don't think about them during the hiring process. Developers go where the work is interesting and the pay is good. Developers go where they get to do stuff that's fun and looks good on their resumes.
Number 2 is that companies won't need incentive plans to convince developers to file patents. I take it from this that Brockmeier has never filed a patent. The process is BORING and TEDIOUS in the extreme, involving hours of meetings with lawyers who don't understand your work and who insist you do all sorts of annoying arcana. Incentive programs exist because companies realize that developers hate this stuff, but hey for five thousand bucks they can get a really cool new toy so sure, they'll put up with the annoyance. The future use of whatever comes out the lawyer's pen is not even part of the consideration.
Number 3 - it could reduce the number of trolls, but frankly trolls are an overblown annoyance. They're a pack of fleas on the ass of the bull that is rampaging in the tech china shop. The bull is composed of those very same big names (IBM, Apple, HP, Microsoft, etc) aided and abetted by a thoroughly broken patent system. I think Mark Cuban gets overheated at times, but I definitely understand his visceral desire to burn down the entire broken edifice that is software patenting right now. Patent trolls are a symptom, not the disease.
Number 4 - the IPA can be a poison pill. Which is to say that if you're someone like AOL or Yahoo and your company is collapsing then you can't even scrape a bit of value out of what little you have left. Boy, that's attractive! I'm about to default on my mortgage, so I'll set my car on fire, too! Seriously, who thinks like that?
The press needs to take a much more realistic look at this proposal and talk about the ways in which it can be made more workable. For example, I'm personally a fan of patent pools, in which companies contribute mutual value, take mutual value and have financial incentives to avoid hostile legal actions. IPA-like agreements and additional steps like compulsory licensing could play a big part in creating an environment where nobody gets everything, but everyone gets enough to be satisfied, without having to disarm themselves.
In a New York Times piece, David Streitfeld notes that Amazon has already announced plans to "push down" e-book prices. Of course, the problem isn't what happens in the short term, it's what happens over the longer term. There continue to be two diametrically opposed opinions on this. On the one hand, we have the old-school notion that says monopolists will raise prices no matter what - the view argued by those who didn't settle with DOJ. I continue to find this ironic after Apple's history of holding the line on music prices against publishers who wanted to charge far more. On the other hand, we see independent authors like Konrath who argue that sales are extremely sensitive to pricing and monopolist price-jacking will just cause people to switch back to physical books.
There is already a potentially significant price gap in the (retail) costs of e-books and physical books. To the degree that a consumer has a choice - that is, already owns the e-book device - the price gap has to matter. For consumers who aren't already locked into a device, the gap has to be factored against the cost of buying a new device.
A possible third way could come from small e-booksellers, according to a Time Techland piece by Keith Wagstaff this week. Under the two very photogenic ladies from Emily Books the column points out that for all the hand-wringing over the potential power Amazon will have, nobody at the big publishers is actually doing anything about it. Hopping into bed with Apple isn't precisely a great move, but nobody at the big houses seems to have a better idea.
Emily's idea is to offer a high-touch hands-on approach, giving readers a better idea of the quality of what they're getting. It's a simple model, and one that has been replicated with all kinds of specialty brands and products in all kinds of industries. But it's nearly impossible to do with e-books because the publishers are so afraid that they won't let anyone sell their e-books without massive, complicated, and expensive DRM.
Wagstaff devotes more than half his column to excoriating the idiocy that is DRM, a story that I'm sure most Copyfight readers know by now. He ends by saying:
DRM requirements are going to have to go. It’s probably going to happen eventually; if I were a publisher, I’d get ahead of the curve and embrace a more diverse marketplace sooner rather than later.
Oh, would that the big publishers were so willing to dip even a tiny toe into the 21st century.
The point these two are making is that antitrust regulators are looking at the wrong thing. Sure, agency pricing set up by collusion would be illegal, but it's not half so anti-competitive as the kinds of platform locks that DRM and other restrictions the DOJ is giving a pass to. Carmody points out that Apple also employs a variety of anti-competitive measures to lock customers in. And, as I'm getting sick of saying and you are probably getting sick of hearing, every bit of lock-in is going to end up harming the marketplace and harming readers particularly.
Yeah, I get that e-books have lots of advantages. I'd like to get some. But not at this cost - and I don't mean whatever Amazon decides to charge.
I feel compelled to repeat before I light into this that my personal belief is that the current construction of copyright law in the US is far too tilted in favor of maximalism, by which I mean putting the rights of copyright holders above other considerations such as scholarship and the general welfare. It was obvious to me that SCOTUS would see how Eldred should be decided, and how continuing to extend at whim the term of copyright violated the originalist language of "for a limited time." As the man said, I may have been (on the) the losing side. Still not convinced it was the wrong one.
What I am convinced of is that Eldred remains the current settled law of the land, and that officials such as Maria Pallante, the Register of Copyrights, have a duty to follow and uphold the law until such time as it's changed. Let's not forget this all started with Masnick hyperventilating about how her statements in favor of copyright maximalism made her incompetent to do her job.
Now let's look at Masnick's current long screed. Without delving into too much detail what he seems to be harping on is the distinction between 'purpose' and 'method.' He still asserts that the purpose of copyright is contained it its preamble language, and that the methods should serve that purpose and that's what everyone else should believe, too, or they're wrong and he's right. This is a less well-written version of the Breyer test and I really do recommend that you, and Masnick, go reread that opinion. Breyer's writing on IP matters is not always good enough or clear enough, but in this case I think he makes the argument cogently and persuasively. But as we reread, let's keep in mind Breyer was writing a minority opinion. Breyer's side didn't win that case (Golan v Holder) and thus it is not the law of the land.
Masnick seems to think he can bolster his argument with a "bunch of quotes" (his words) that support his view. Dear Mike Masnick, I can personally guarantee you that every losing side in every SCOTUS case came equipped with more than a few "quotes." They had amicus briefs, and detailed citations of precedential cases that they believed supported their side. Having a bunch of quotes doesn't make you right and the other guy wrong.
With very little due respect to Chief Justice Roberts, the job of a judge - particularly a Supreme Court justice - is a hell of a lot more than just calling balls and strikes. It's weighing meanings, and examining evidence that supports potentially contradictory interpretations and deciding which one is right. Precedents exist, but may not apply. Or someone else may read that precedent differently than you read it. If you read a dissenting opinion in a Supreme Court case you may find language that says, in effect, "those other five guys are wrong." Justice Scalia is known for taking his colleagues to task in his minority opinions for, in his view, being wrong. He does this in great detail, with extensive citations and as much weight of authority as he can bring to bear. But that doesn't make him right - the majority opinion remains the majority opinion and thus the governing interpretation of our laws.
Which is to say, you can't just pick a few quotes that support your opinion and then say, "See, this means the law says what I think it says." Well, apparently if you're Mike Masnick you can. But I'm still going to laugh at you for doing it.
Over a year ago, I pointed out that a potentially big story was being missed: people were migrating off file-sharing networks because of a change to always-on, high-speed, mobile Internet use that meant people would rather have their media streamed to them wherever they were, rather than held as bits on a single disk. Having media in the cloud was worth more than downloading, legal or illegal.
But never mind all that interesting new stuff, the RIAA has its own version of history and it's going to stick to that version no matter what. In a blog entry posted last week, Joshua Friedlander, the Cartel's VP of "Strategic Data Analysis," trumpets their success at smashing sharing networks. He's not just relying on marketing "research" like last time, he's relying on a truly dreadful paper put out by an actual (Wellesley) college professor.
Here's the paper itself, "The Effect of Graduated Response Anti-Piracy Laws on Music Sales". It's an abominable piece of badly put-together propaganda masquerading as research. How do I know this? I read the paper. I bet you plenty of journalists will not bother with this; they'll just blandly repeat what's in the RIAA blog entry. Are you listening, Greg Sandoval?
To highlight just one critical flaw, I call your attention to the methods used, which involve looking at results data (the change in purchases from iTunes) and then inferring what caused those changes. Rather than doing something like asking people "why are you buying more music" or investigating things like public awareness, Professor Danaher simply assumes the counterfactual. If sales went up, it must be because of Factor A. Shame on him for bad experimental design, and double shame on Friedlander for citing this paper as if it was actual published work. It's not, it's a "working paper" which means it hasn't been subjected to the kind of peer review that would highlight methodological flaws. Two words, Professor Danaher: confounding factors.
Friedlander also points to "Nielsen Netview data" (which I could not find the source for) in order to tell us that "the vast majority of those who used Limewire in September 2010 did not use it in September 2011." Could that possibly be because Limewire was shut down in October of 2010? So, a year after a service was shut down, 90% of people had stopped using it. That's a remarkable achievement; next, do a survey on how many people are renting DVDs from Blockbuster.
Also shocking is that if you mention Limewire, and then ask people whether they use other sharing sites, they tend to say "no." Could that be because people are not stupid? Seriously, I'm more surprised that 35% of people who used to use Limewire would admit to migrating to another file-sharing network. Brazen is as brazen does, but no, officer I promise never to speed again. Honest!
First, the practical response. Dearauthor.com has a very nice (if lengthy) guide to "What happens next?" It's complicated, in part because some of the publishers accepted a settlement and some rejected it. So what happens with your e-books (both as an author and as a reader) depends on who the publisher is. Also bear in mind that the settlement doesn't yet have the official court stamp of approval, which could take as much as 60 days to get.
For example, it's quite likely that those publishers that signed the consent agreement will quickly negotiate new agreements with Amazon, which still has a dominant position in the e-book market. Because of the terms of the agreement, books will appear in Amazon's Marketplace at variable prices. There will be an ability to discount, to manage prices, and I suspect Amazon will not pass up the opportunity to promote its (re)acquisitions, possibly with sales and offers. If you were holding off on buying some e-books because of pricing in the past few months now is an excellent time to start scanning for bargains. Assuming, of course, that your preferred books are published by certain publishers and are on your locked-in platform. But I digress.
Dearauthor seems to think that the prices on physical books are due for another rise, and that the entire concept of a mass-market edition is at risk. I generally agree, but don't think it will happen this year, for reasons I think will become apparent as 2012 unfolds, particularly the end-of-year shopping/gifting season.
To wit: I believe that the dedicated e-book reader may well have plateaued already. In 2013 I think we'll start to see the dedicated e-reader go the way of the point-and-shoot camera as tablet computers start to become less pricey and expand their reach and function in accordance with some version of Moore's Law. Just as peoples' mobile phones took over every function that a point-and-shoot had, tablets will do everything that e-readers do. Yes, phones and tablets cost more, but people want mobile devices for other reasons and once you have those devices you don't want or need a second single-purpose device. In the mass consumer electronics market, special-purpose hardware tends to lose badly to general-purpose hardware. Your set-top box is a DVR (and maybe a DVD/Blue-Ray player too). Your home movie camera is called "iPhone" or "Droid." Et cetera.
E-book readers will not be immune, and their demise will shake up the market significantly. If Apple continues to be this hostile, what will be the fate of a "Kindle app" for iPad? Will Apple even allow such an app in the store? Disruption of this sort always hurts consumer adoption, as does a failure to converge to a single standard. A slowdown in consumer adoption of e-readers may well delay the demise of the mass-market paperback, at least for a year.
To close out the Dearauthor piece, I think they hit the nail on the head where they say
[P]ublishers have sustained a big public relations blow. People who never read an ebook or haven’t followed this issue closely now are exposed to this idea that publishers stand accused of engaging in price fixing
Fulton makes a couple good points, the first of which is that Amazon's behavior in arousing the book publishers' ire is remarkably akin to what Apple itself did with its iTunes store pricing. Jobs wanted a certain price for songs and he got that price. The music publishers fumed and fought and flailed but 99 cents it stayed. His other point is that the publishers (and Apple) who are fighting the suit may be in position to counter at least the prima facie evidence of collusion that the government seems to be making its case on. Whether that's a wise move is still debatable. Making yourself look bad in front of customers is rarely a winning strategy.
Finally, In delightful counterpoint to Jon Sargent, we get US DOJ (acting) Antitrust Chief Sharis Pozen claiming that the point of the settlement is to "[open] up the competitive marketplace and the competitive landscape." So now both sides claim they're all about open competition - isn't that wonderful? And that brings me to John Scalzi's Whatever column published yesterday in response to the public drama. As he points out, all of the players here are in it for their own (and their shareholders') pocketbooks.
You, and me, and those who read or might read e-books are here solely for the purpose of giving these companies money. That's what they're in business for. Statements about the public interest, or open competition are just part of the PR maneuvering game. Corporate strategies have everything to do with profit and nothing to do with "good" or "evil." Really.
A couple months ago, Nest found itself on the wrong end of a patent-infringement lawsuit from Honeywell, over so-called smart thermostats. At the time, I thought that Nest would probably choose to settle rather than get dragged into a possible protracted bit of litigation against a much-bigger company. Honeywell makes tens of thousands of products and smart thermostats are a tiny fraction of their business. For Nest, though, they're the showcase - the whole point.
This morning, Kate Brinks (the official Press Contact for Nest) was kind enough to send me a copy of Nest's just-filed response. It's dressed up in polite language, but what it amounts to is Nest calling "BS" on Honeywell, and filing its own counter-claims. In order to lead this fight it has brought on board one Chip Lutton who hasn't even had time to update his LinkedIn profile there. See, he's left Apple and joined Nest as Chief Counsel. This is very good news for Nest, I think, as Lutton has been helping steer Apple's worldwide patent war and knows a thing or two about how big companies do the patent dance.
So, what do Lutton and Nest have to say in response to Honeywell's charges of patent and design infringement? It's the usual - Honeywell are stifling competition, their patents are "hopelessly invalid" where they are "not worthy of a patent". The deep deep irony of someone from Apple complaining that someone else is asserting crap patents is apparently not a factor in drafting press releases like these. In summary: Nest are going to challenge the patents' validity, push for re-examination, and hope that the judge finds that they have sufficient grounds to proceed. If the judge thinks they have even a reasonable chance then it's likely they won't be hit with an injunction and can go on building their business.
If Honeywell is able to convince a judge otherwise it's possible Nest could be cut off from its sole source of revenue, which would make its investors even less happy. My guess is that Lutton's first job is to make sure that doesn't happen. Whether this leads to serious negotiations or to a courtroom date afterward is something we probably won't know for many months.
Quick recap: the DOJ has been hinting about filing this thing for at least a month. The core charge is that five big publishers colluded with Apple to fix prices via an agency model for e-books. According to the WSJ piece, the civil suit alleges that the publishers banded together by phone and email to break Amazon's back over its "wretched $9.99 price point."
The new news is that three of the five would rather smoke than fight, agreeing to a settlement that will let Amazon resume discounting e-books. They may also have to pay "tens of millions of dollars in restitution " to consumers who were ripped off by the illegally priced e-books, settling a separate suit brought by a group of states. Apple and two of the publishers didn't like DOJ's terms and will do the "see you in court" routine.
The first part of that routine is, of course, trying one's case in the press. DOJ tries to make its case look as strong as possible, and the defendants respond by denying guilt and making charges about government interfering in good ole American business. If that's what Sargent wants to do he needs a better writer - maybe he knows a few?
See his blog post on tor.com (Tor is owned by Macmillan). In this triumph of illogic he claims that switching to the agency model would "make less money on our e book business." Say what? You jump prices 30% overnight and make less money? Either you're not fit to run a business or something very fishy is going on. Trust me, if I'm hurting trying to sell a product for $9.99 and tomorrow you let me sell it for $12.99 and prevent anyone from discounting it back down? I'm going to make more money.
Unless, somehow, you think the 30% price jump is going to kill your customers' willingness to buy that product, in which case you are a frakking moron for jumping the price in the first place.
Moving on, we then get the claim that "We made the change to support an open and competitive market." Would someone like to tell me how a price-fixed, guaranteed-no-discounting market is more "open" or "competitive" than one that lets prices vary? Oh, never mind. This is code for "we found a way to force people to buy our stuff at the price we wanted and from the people we want you to buy from, who are not Amazon."
The best part is the personal story: "I made the decision on January 22nd, 2010 a little after 4:00 AM, on an exercise bike in my basement." Dude, if you're deciding the entire future of your business at dark-o'clock when you can't sleep then you need to take a big step back, and maybe step down. The corporate cowboy routine may play well if you're Mark Cuban or Donald Trump, but (even though your company is privately held) there are people who depend on a management team making responsible, well thought-out decisions. Preferably not at four in the morning.
This is more technical than my usual pieces; please bear with me and remember I'm still not a lawyer, just doing my best.
The decision last month in Mayo v Prometheus was either good or bad, depending on which side you stand for. Organizations such as the (generally liberal) ACLU, the (generally libertarian) Cato Institute, and the (generally non-politically aligned) AMA were all pleased by the ruling in Mayo's favor. Biotech/pharma companies were dismayed. But there's a third group, nominally neutral in this particular dispute, who have to deal with its consequences: the patent examiners who have to decide what they should and should not allow as patents and the applicants (and their attorneys) who have to construct patent applications, draw defensible claims, and secure the patents that the SCOTUS decision should enable.
To the dismay of this third group the majority decision, written by Justice Breyer, is causing more confusion than clarity, as has happened with several recent SCOTUS patent decisions. Greg Aharonian's PATNEWS published a letter this month from an anonymous group of examiners in the USPTO's "biotech Art Groups" - the people responsible for making judgments of patent applications in light of this decision. And they are not happy people.
It seems that Breyer's opinion confuses 35 U.S.C. 101 and 35 U.S.C. 103. That's two key sections of US patent law covering the requirements for an invention to be patentable. See the Wikipedia entry for a mostly non-legalese discussion. The actual (sparse) legal language can be found at sites such as Cornell's Legal Information Institute.
Taken as a whole, a non-patenting outsider doesn't care about these distinctions. Either something is or is not covered by a patent and it doesn't matter why unless you plan to challenge the patent somehow. But the people who are involved in practicing the law care a great deal about these distinctions. An invention may be rejected on 101 grounds or, separately, on 103 grounds. Challenges to patents, or to specific patent claims, can be brought under different sections of the law, and there are different requirements in each of these cases
And let's not forget that none of these things is free. Patent examiners always have more work to do than they can handle; if they reject wrongly and have to re-examine then they've taken away time that could have been used to examine another patent, which harms them and the long queue of waiting applicants. Patent applicants have to pay lawyers, court costs, their own time, etc., none of which are cheap. Getting 101/103 wrong can cost a lot of money, so it really matters if Breyer's opinion has messed this up.
Specifically, the patent examiners say:
[T]he decision never says what the natural laws are in the claims or how the claims are simply an application of the natural laws. The starting material and product are not naturally occurring. How are we to justify saying something is or isn't simply an application of a natural law?
The point of novelty in the patents (Applicants' discovery) seems to be that a therapeutic amount of the drug is one that produces an amount of the metabolite in claim 1 in the blood within the range recited in claim 1. [...] Determining this indicator (metabolite range) may or may not be an invention. But that determination is better treated under 103.
[...]
We don't know what the PTO can do with this decision, because no examiner thinks like the Supremes.
The 101/103 distinction revolves around what is eligible to be patented with 101 criteria supposed to govern novelty and usefulness versus 103 criteria governing (non)obviousness. That is, even if you've come up with something new and useful, if the invention was obvious you still may not be able to get a patent on it. What Breyer's opinion seems to be doing is stating that Prometheus's patent is invalid in part because of the use of "natural laws" (which might be read as a 101 objection) and in part because the result (of reading the metabolite level) is obvious - to a person skilled in the art, remember.
But if natural law applications fail for obviousness reasons then... um, what's the point of having 101 and 103 be separate? The examiner writing above seems to be making the point that the Supreme Court majority is written as if by a layperson who doesn't care about the 101/103 distinctions, but has to be treated as law of the land by patent examiners who care very much about this.
No wonder they're tearing their hair out.
(Excerpts and quotes above taken from PATNEWS by kind permission of Greg Aharonian of Internet Patent News Service and publisher of PATNEWS. The newsletter itself has no online site, but you can subscribe at http://bustpatents.com/)
Yesterday, the Second Circuit handed down its decision, which is something of a mixed bag. The trial court had pretty completely sided with YouTube, in a way that felt like a complete victory for safe harbor. The Circuit decision is more mixed: in part they upheld, in part they overturned, and at least one key question has been remanded back down for further argument.
The response to this mixed decision has itself been mixed. Some bloggers seem to think it's hugely significant (e.g. calling it a "DMCA Game Change"). However, I come down on the side of EFF Deeplinks blogger Corynne McSherry and Volokh Conspiracy blogger David Post that the decision is not all that bad, and in fact mostly upholds the key elements of the safe harbor concept.
As I see it there are three key elements here: Does safe harbor apply? Who is responsible for finding infringing content? What must be done when infringement is claimed? YouTube clearly won on points one and two and the third will need to be further argued.
As Post points out, the Circuit's finding is that a safe harbor site such as YouTube is protected from all infringment claims, including contributory infringement, inducement, and so-called "vicarious" infringement. In addition, the Circuit clearly assigns the responsibility on the claimant, not the hosting entity, to determine specific infringement by content. The Cartel's theories about pre-filtering and keyword matching fall. Takedown notices may still be subject to abuse or over-use, but the responsibility for generating notices is still there, an important victory for YouTube.
The issues on which YouTube lost, and which are now remanded down for further argument, deal with what steps it (and similar safe harbor-protected) entities must take when made aware of infringement allegations. The Circuit clearly ruled out what's being called a "willful blindness" defense - that is, YouTube can't shield itself from knowing about infringing content. And, it must "act expeditiously" to remove or prevent access to content that is claimed to infringe. There's also an unresolved question of what the Circuit called "substantial influence" and some question about syndication of allegedly infringing content. These issues will now be re-argued at the lower court.
Matters of fact-finding, such as the Circuit required to be resolved, will vary from case to case. What is important here, I think is that the Circuit has affirmed the overall structure of safe harbor policy, clearly rejected attempts to drag in other sorts of copyright-infringing activities, and begun to articulate what may become a recognized standard for what actions a safe harbor-protected entity has to take. That's not a complete vindication of either side, but the scales I see are definitely tipped in YouTube's favor.
Let's start with a couple things we agree on: Maria Pallante, the Register of Copyrights, is a copyright maximalist. As you can see from her public background, she's worked for organizations like the National Writer's Union and the Guggenheim Museum that consistently hold a maximalist, and author-centric view of copyright. It's also clear that she believes the purpose of copyright is to help people make money, and that exceptions to copyright monopolies should be narrowly drawn.
Why this is surprising, or why it causes Techcrunch's Mike Masnick positively to foam at the mouth is beyond me. Masnick notes that in two recent talks she's taken a retrograde and maximalist position, and then goes on to rant that this means she "doesn't understand her job" and that holding such views should be "grounds for termination."
Beg pardon? Since when has the Copyright Office been any bastion of progressive viewpoints, or even vaguely friendly to "the copyleft agenda" - whatever that might be.
Masnick's major point seems to be that he thinks the purpose of copyright is to promote some nebulous social value. If the head of the Copyright Office seems to think the purpose of copyrights is to make money for the rights-holder that's kind of disappointing and unenlightened, but hardly a shock. Masnick seems to be referring to what I've been calling "The Breyer Test", but hasn't noticed that Breyer was writing a minority opinion.
It's an opinion I happen to agree with, but it's still the minority opinion. What Pallante is reflecting is the majority opinion, which is to say the settled law of the land. So we have a high government official saying she agrees with the law of the land, and this is cause for ranting... how? I dunno, Techdirt is a better (or at least more popular) blog than Copyfight, so maybe I should write more rants and less reasoned posts.
It's also Facebook's way of saying "let's negotiate" - they're showing that they can bring weight to the table, which puts them in a better position to make the whole thing go away. Neither company can really afford this: Facebook does not want its multi-billion-dollar IPO disrupted and Yahoo can't afford to pay for a protracted patent struggle. Cross-licensing these 20 patents (and probably whatever else they've got lying around) would strengthen both companies' positions.
I also expect Facebook to throw Yahoo a bone, like paying their legal costs for this.
There, two servers were seized - servers alleged to be "the command and control computers of two Zeus botnets". As you may know, a botnet is a network of computers (usually PCs running Microsoft Windows) that have had vulnerabilities exploited to allow remote attackers to gain control. Once in control the subverted PCs are made part of a network (botnet) that can be used for a variety of illegal purposes, including DDOS attacks, spamming, spreading worms/viruses, and crack/infiltration attempts against other machines. Usually in a botnet each member PC operates independently but periodically checks with controlling servers for new instructions, updated malware, and so on.
The Copyfight angle appears to be that Microsoft made the assertion (and presumably convinced a judge) that it was entitled to enforcement action against these Zeus botnet servers because one effect of the botnet was to "violate [Microsoft] copyrights and trademarks" by taking over the Windows PC. It's an interesting twist but one I haven't seen before.
I'm a little bit conflicted here - I don't generally think that ends (even good ones like silencing botnets) justify means, including potentially novel expansion of copyright and trademark enforcement. Looking back in history (e.g. see this story from Sept 2011) it appears that Microsoft has used other means in the past to move against botnets. So this may be a new tactic in their ongoing fight, or it may be just new-to-me. Does anyone know if this is truly a novel application of the law?
If you think that traveling with comics (or manga) isn't a big deal then you haven't been following the news these past few years. People have been stopped, denied entry, had their possessions searched and seized, and even been brought to trial over these kinds of materials. The rights you may have in your home country (particularly if you live in the US or Japan) may be very different from the rights you have on entering another country, even a democratic nation such as Canada or an EU member state.
The CBLDF page contains a set of links to guides on four specific topics, covering comic art, pornographic anime/manga, electronic devices, and US border privacy. Each is worth a read and as always if you have questions make sure you talk to a lawyer - these are advisory notices based on experience, not legal guidance.
As Scott Fulton explained for ReadWriteWeb, HBO managed to get itself known now for having a young college student handcuffed and dragged away by local cops. This student - Cristian Alvarez Rojas - is apparently accused of being behind a site called Cuevana.tv which itself is accused of being a violation of a relatively new (April 2010) local intellectual property law. Except that Rojas may not have broken the law because he kept the site's resources outside of Chile. The law may not cover this situation.
It's unarguable that Chile, like much of South America and vast swathes of Asia, does not have respect for American copyrights. Illegal copies of videos are sold in the streets or in cheap storefronts in Chile as they are in China. Police efforts to crack down on the retail end have proven largely futile. The argument, though, is that these street copies are made from downloads provided by sites like Cuevana.tv. Even though the site isn't making Rojas any money, if it is a source feeding the illegal retailers then it's clear why the Cartel would want it shut off.
But having a college kid dragged off in handcuffs is bad juju and horrible PR, regardless of how accurate or justified the reasons behind the action may be. Just like extraditing a kid from the UK is a terrible move but the Cartel seems bent on doing it anyway. Legally right != smart, guys. The people who are buying those street-copy DVDs are your natural customer base. Do you want them to think of you as 'the strong-armed gringos"? Do you think that being known that way will help sales of your legitimate product?
I certainly don't. But then I doubt anyone from the Cartel would ever hire me anyway.
Quick update to yesterday's post on Mayo v Prometheus: Groklaw has an excellent update full of useful pointers, posted yesterday afternoon. They have links to the decision PDF, background links to the recent Flook, Diehr, and Benson decisions that have caused the current muddle, and several links to others' coverage of the decision, both good and bad. It's worth noting that SCOTUS has yet to remand the case back down for further consideration in light of the patent's invalidity, so we may yet see new ground broken over this issue.
What do the US Supreme Court, the ACLU, the Cato Institute, and the AMA all have in common? Today the answer is: "unanimous opposition to the notion that mental processes constitute a violation of a patent, or are the proper subject of a patent."
This strange set of bedfellows comes from the just-decided patent infringement case known as Mayo Collaborative Services v Prometheus Laboratories, Inc; the patents in question are 6,335,623 and 6,680,302. The patents are fairly complex and detailed, but the infringement question seems straightforward. A good, if quick summary of what was decided today comes from Timothy Lee, writing for Ars, "Supreme Court saves medical profession from diagnostic patents".
Lee, who has written about this case for Ars before, played a small part in the Cato institute amicus brief, and is a strong advocate for the invalidity of the patents. I have not yet read the opinions in the case, but based on the summaries I believe I would have to side with Lee and the other amicus parties. To put it bluntly, this looks ridiculous on the face of it and it's not clear to me why the patent was issued in the first place, or why the lower courts upheld it.
The key issue appears to be that the Mayo Clinic decided to stop using Prometheus's product and started doing its own testing; in response Prometheus argued that in using the separate Mayo test doctors would still "[think] about the correlations described in Prometheus's patent" and that this would itself constitute infringement. SCOTUS disagreed, asserting that the activities of measuring thiopurine metabolites and from that determining appropriate drug dosages was, in the words of Justice Breyer, "well-understood, routine, conventional activity previously engaged in by scientists who work in the field." And thus, unpatentable.
Unfortunately, although I believe this decision to be correct, I do not think the verdict is going to do much to untangle the present snarl of what is or is not patentable in the US. It has become increasingly clear in the past decade that decisions such as in re Bilski have done nothing to clarify what ought to happen. Instead, the waters have gotten more and more muddied.
The court rejected Righthaven's claim that online excerpting was copyright-infringing action, and also noted that a site which permits user comments is not automatically liable for material posted in those comments, even if the site is not a formal candidate for DMCA Safe Harbor provisions.
Righthaven is often referred to as a copyright troll for its practices of suing far and wide on dubious legal theories; for example, see this Boingboing post from last December on Righthaven. Courts have steadily dismissed and dismantled the company's claims and legal strategies and the company is now in (financial) ruins. Good riddance to bad garbage.
Back in January the first reports I read of this story had me wondering what the hell was going on. Anderson's current report makes clear that it has nothing to do with UK copyright laws and everything to do with the Cartel's ability to get law enforcement internationally to do its bidding. I truly feel sorry for Richard O'Dwyer - being treated like an international criminal mastermind because he posted a Web site full of links is beyond ludicrous.
The second story was highlighted on Friday by Cory for Boingboing, under the long but sadly accurate headline "RIAA prez twirls mustache in anticipation of taking on his role of Internet Witchfinder General". The gist of the piece is that the Cartel has used their captive Department of Justice and cowed your ISP into becoming its enforcement arms. If you do things they don't like, they'll cut you off from the net, or maybe they'll just slow your download speeds or drop your connection now and then. "Nice network you got there... be a shame if something happened to it."
Seriously, how fucked up is this? I think it's important to realize that "cutting off peoples' Internet access" doesn't just mean you can't download files. My kid requires the net to do his homework, which is posted by his schoolteachers on a series of blogs. My landline phone goes over my cable wire and is provided by my ISP. I doubt I'm unique in these things; Doctorow lists several other activities that modern life assumes people will have Internet for, such as banking and participating in political life. Losing Internet means losing all these and more.
I am reminded of a long-ago conversation Bruce Sterling and I had about his novel "Islands in the Net." The gist of it was the central thesis that access to the network was about to become like electricity - it's just assumed and you only tend to notice it when it's not there. I suspect that when the Cartel starts getting its way a whole lot of people are going to find this sudden absence troubling. Maybe if a lot of them are in the US Congress then we'll see some course-correction. But I tend to doubt it.
For these studies, the FMC worked in depth with five people in the industry who make their living full-time with music. Using data provided by the professionals, the FMC then graphed and wrote up explanations of how money flowed in, from where, etc. As with any case study the results aren't necessarily broadly interpretable but it's nice to have some detailed data to go with the more general surveys we usually see.
This is sort of the canonical prior art: if you can show that an invention from a patent was in fact already known publicly then the patent can't stand. You can still patent new inventions related to the idea - for example, Apple's patent on providing word-by-word suggestions for auto-completion as users type is unlikely to be invalidated simply because someone described the general form and function of a tablet computer in 1994.
Still, Fidler's writings, videos, and demonstrations were public; the fact that they weren't patented doesn't lessen their potential value as relevant prior art. There's some chance as Rosenwald describes it that a good lawyer could show how Apple people were exposed to and potentially influenced by these ideas. Apple probably would still maintain the majority of its patent position even if certain design and foundational patents were invalidated, but its position would be significantly weaker. That may be why rumors are starting to float that Apple may want to settle. A settlement would foreclose the possibility of the patent portfolio being weakened and could leave Apple in a strategically stronger position than another partial win a full-length court case.
Earlier this week, Yahoo! filed suit against Facebook alleging that it infringed on 10 different Yahoo! patents. Normal course of business, except for the timing and the companies involved. Facebook is involved in trying to go IPO, and a big-name public lawsuit could monkey-wrench the whole works. Yahoo! is floundering desperately trying to find someone to lead it and some business in which it can compete, or at least have enough going for it to be worth someone bigger buying.
The meat of the suit seems broad - Yahoo is hitting at Facebook on ad generation, customization, and aspects of social networking such as creating news feeds, messaging, and managing comments. I haven't read the patents in question, but I wanted to comment on how the suit seems to be stirring up the geek community by looking at some items that appeared in response to the suit that gave me the head-scratching WTF pause.
Uh... yeah. I don't even know where to start with that one. Even if the public somehow figured out what was happening, which I wouldn't bet on, what would they care if Big Corporation A pays Big Corporation B some money? It's not like anyone's Facebook pages are going to go away because of this. Facebook will probably pay up and may change some of their features to get around patent clauses, but honestly Facebook changes your pages so often and so arbitrarily that nobody's going to notice a few more changes.
Meanwhile, Gizmodo is screaming that "Yahoo Is Out To Burn Down The Web". Uh, guys? Facebook isn't the Web, however much Facebook would like you to believe it is. And if Yahoo's patent is valid and enforceable against Facebook then yes they may well try to enforce it against other sites. Which would be a tragedy exactly... how?
The article's author, Mat Honan is grotesquely misinformed about how patent protection works. He claims that "Facebook is built on its own unique codebase" which is probably true and completely irrelevant to whether or not they're infringing the patent. Let me 'splain... no, is too complicated, let me sum up: whether or not you wrote your own code from scratch isn't at issue here. What's at issue is what that code does. Also, Honan wails that if this is upheld then "Yahoo [would own] personalization outright." Oh, puh-leeze. Patents protect inventions; anyone who thinks Yahoo patented every single possible invention related to personalization is... wait, named Mat Honan? What does it even mean to "own" personalization? Get a grip, Mat, use your inhaler, take a Valium.
And finally we have Andy Baio writing for WIRED about how Yahoo "weaponized" "his" patents. Oh, cry me a river. First of all, his patents aren't at issue here, as he admits. (Though he's probably not responsible for the attention-grabbing headline on his column.) More to the point, Baio is whining that Yahoo actually got patents while he was there and even though he hates patents he helped them get some and now they're actually (*GASP*) using patents in an offensive way, not just in the defensive manner he thinks he was promised.
Let me find you some tissues. The very first lecture I ever attended on patenting in a corporate environment (at Texas Instruments in 1989 if anyone cares) covered the notion of "sword" and "shield" patents and how it was only a distinction of convenience. If you didn't get such information, or weren't motivated to understand what you were doing when you helped Yahoo apply for patents, my sympathy for you is precisely zero. No one is required to sue anyone in order for a patent to be valid (unlike, say, a trademark) but that option is always there.
Yes, it sure would have been nice if Yahoo could have turned its innovations into wildly financially successful products so it didn't care about who was using its patented inventions. But it didn't, and it does, and these suits are just part of the death throes of the company. Perhaps one day all that will remain of Yahoo will be a few patents that have been upheld in court and that someone will pay money to acquire. So it goes. Between then and now it'd be nice to see less hysteria and more clear-headed analysis on the topic.
The live launch includes a "90 days free" enticement, but is limited to web-enabled iOS devices only. They promise Android support "coming soon". 20 channels, 40 hours of DVR storage, and the ability to use the service on up to 5 devices.
Contrary to my initial impression the customer doesn't buy an Aereo antenna - instead they connect to the company's antennas over the Web, with no new physical devices in or on the consumer's home. In addition, you don't have to install a new app - apparently you can connect using the built-in iOS media-viewing software. After the 90-free, the service costs USD 12/month and is geographically limited to New York television marketplace. It's not clear from the press release if that means the physical limits of the city or whether it'll be available to people outside the area who can receive New York City broadcast channels (about half of New Jersey and Connecticut I believe).
If anyone tries out the service please do leave a comment with your impressions.
What is this grim news? Why, it's the likelihood that the DOJ will file a collusion case against Apple and the big publishers. This is "grim news" because Mr. Turow is in charge of a big club for very big authors, which is likely to be on the receiving end of this legal case. If I was him, I'd be worried too.
You may recall I blogged about Konrath's claim that he garnered $100,000 in profits from his e-books in January of this year. Obviously he's someone heavily invested in Amazon's publishing model and as we discussed, he's also someone who pays careful attention to prices and how an author can maximize income by carefully discounting and tracking the effects of deals on sales. The agency model for pricing, which is at the heart of the collusion case, is just about the opposite of that - it handcuffs retailers and gives pricing power to the agency partners - the aforementioned big publishers. You can imagine this as being the digital equivalent of a poke in the eye for guys like Konrath and Eisler, and they have some choice words in response.
In a blog entry titled "Barry, Joe, & Scott Turow" they go line-by-line through Turow's dire news and translate it into more or less plain-speaking English. For example, where Turow sees Amazon "destroy bookselling" they point out that lowering prices tends to increase sales and in general selling more books is (should be) what publishing is about. They go on at some length - you should read it for yourself. They're pretty contemptuous not just of Turow and his blog post, but of the whole big-house/big-author publishing business and its failures to anticipate, react, or adapt to the sea changes introduced by self-publishing and e-books.
But those are problems that need to be dealt with openly and head-on, not by some (potentially illegal) back-room deal. Remember that the big losers in these collusion situations are the readers who are getting swindled. And if DOJ puts a stop to that then more power to them, I say.
In the column, called "The Down-Low on Exclusivity Clauses", Long talks about Amazon’s KDP Select program. This program, which Amazon introduced at the end of 2011, allows authors to sign up to have their books placed in the "Kindle Owner’s Lending Library". This (virtual) library allows Kindle owners to "borrow" one book per month. That is, they can download a free copy with no due date of any book on the list. Since the reader doesn't pay, Amazon has offered an enticement to e-book authors to have their books in the library. Amazon will put forward a pool of money and each time a book is borrowed the author of that book gets something from the pool.
According to Long's column, in January authors were getting USD 1.60 per borrow. That's not much, but it's not a huge amount less than most authors get on e-book sales, and in theory the author can get borrow money on top of royalty money. That's the upside. The downside is exclusivity. If you're being borrowed on a Kindle then you can't be read on other devices, including Kindle apps that run on other devices. In effect, you're agreeing to have your book locked to one device in order to help Amazon sell more devices that will (work with me here) further lock in readers. Awesome.
As usual in these sorts of situations where an author sits on the publicity/popularity curve says a lot about how good this deal is. If you're a New York Times bestselling author then your readers are likely all over the marketplace and single-device lock-in is bad for you. If you're an unknown and need to build readership numbers, then the extra publicity of being in the library may be a boost. But then again, what do you do if your unknown book turns into a hit and readers can't get it elsewhere? A new author may be crippling her audience reach by agreeing to this lock-in, without even knowing what the potential reach of that audience is.
Long tries to end her column on a balanced note; as she says, the situation wasn't exactly a rose garden in the days before e-books. Perhaps that's her professorial (she teaches at Boston College) fairness showing through. Me? I have only sympathy and faint contempt for people who feel they need to buy into someone else's exclusive locks. This may be why I don't own an e-book device myself.
Copyfight reader Jasmine Hall sent me a pointer to an article recently posted on a site she works for, onlinecolleges.net. The site appears to be a clearinghouse of information and resources for people who are looking to pursue online higher education at for-profit or non-profit electronic universities. Like any in-person university, students at these institutions need to prepare papers and other work to turn in for classroom grade. So what does onlinecolleges.net think students ought to know about copyright?
The article is titled "15 Copyright Rules Every Student Should Know" and is credited to "Staff Writers", of which I have to assume Ms. Hall is one. Encouragingly, the first topic in the list is "Fair Use." Readers are instructed that fair use and educational purpose provide some exemptions to copyright restrictions and imply that sampling is fair use. This is, of course, something that is still contentious in several legal arenas but for the non-commercial purposes of educational materials I suspect most people will expect that student works don't violate copyright. It's heartening to see fair use as the first topic.
Later items in the list note that sampling even from DVDs and public sources can be covered by fair use, but encourages students both to check use guidelines that may be published with a work they want to sample, and to provide appropriate credit. Again, both are key topics and students need help in treading a middle ground. Wholesale appropriation is often doubly inappropriate in an academic context where plagiarism and other forms of intellectual theft can be a problem. The article tries to give numeric estimates for what would be considered an appropriate sample (250 words, 30 seconds of music). Again, I think this is well-intentioned but probably should be tempered by encouraging students to consider contexts. If I'm using a 30-second clip of sampled music as, say, a background to a video I've created that's a different thing than using a 30-second segment of someone else's music in my own composition. Unless, of course, it's a remix... well, you see the problem.
I think this is a challenge not just for Ms. Hall's list, but for any set of guidelines. Copyright fluency is an important skill for students to learn and one set of guidelines is a good start - I like this set overall. Even with a good set of guidelines, I can't help feeling that strong cautions should be given to students who may feel that one set of guidelines teaches them everything they need to know.
It's sad and ironic that these stories always seem to appear around the same time of year. Last March I noted it was three years, and now it's four in which we've been unable to break the logjam around drug patents, pricing, profits, and people dying.
None of the issues have changed: patents are still a government-created monopoly that is limited in some ways and very broad in others. Drug companies still use patents to ensure they have monopolies on money-making medicines. And people still need medicines in order to stay alive with serious conditions such as HIV/AIDS or in this case a particularly nasty form of leukemia.
Of course it's not just this patent that's at stake. If the Gleevec patent is recognized then the law under which India has barred recognition to a whole host of drug patents will fall, and those generics will go away. And it's not just India - the US and the drug lobbyists are so afraid that other countries might follow India's lead that they've begun high-pressure moves in trade negotiations to prevent this from happening.
It's worth noting that India's law is not a wholesale blind invitation to piracy. What the law says is that you can get a patent on a new drug, but you can only get a patent on a modification of that basic drug if you do something that improves its efficacy. In the US you can get patents based on slight reformulations, or patents to cover different delivery methods even though the underlying drug remains identical. So while it's clear that US and Indian patent laws differ, it's not obvious to me that one is inherently superior.
I've never been shy about where I stand on this sort of thing and my position hasn't changed. I believe that the patent monopoly power ought not to be absolute, that a new equitable bargain should be reached, if the damned drug companies will stop blocking it. Indian law may be too restrictive in that companies would not be properly enticed to spend the money to develop better delivery systems or refinements if they can't be sure it would meet some (currently undefined) standard of efficacy improvement. But we must weigh the lifesaving necessity of cheap versions of these drugs against the business needs. Right now, particularly in the US, the scales are tipped over far too much to one side. Let's hope India doesn't end up the same way.
Or maybe not. The WSJ reports insider sources as saying that at least some of the publishers may be in settlement talks. Visions of what a settlement might look at vary but there seems to be general understanding that the publishers would prefer to modify their agency pricing scheme rather than give it up. Quel surprise.
First, a bit of background. Gillmor has been working in various aspects of journalism for 25+ years. I first started reading him in the late 90s when he was working at the Merc and its online site siliconvalley.com. He's been a businessman, teacher, and investor in the digital media space for approximately as long as that space has existed within the US media landscape. Gillmor has never been passive - he was one of the first "establishment" media figures to realize that personal passion counted for something extra in the digital media space and he does projects he believes in.
Right now, what he believes is that we (the media-consuming public) need to make better choices. More informed choices. More active choices. In an effort to spur that he is both walking the walk, and creating the Permission Taken project, a project dedicated to "help[ing] you make your own decisions" on technology, privacy, and rights.
The project currently exists as a public Google doc - anyone can read it and comment either anonymously or if they have a Google account they can log in and be named. It reads a lot like an early-stage book proposal and it's clear there's a ton of work to do. Of course there will be at least one accompanying Web site, but there's also the possibility that Gillmor will take this crowdsourcing thing seriously and farm out pieces of this to others who would build micro-sites or related sites to extend beyond what can be contained in any one book/site.
The topic itself is centrally important to Copyfighters. Gillmor is quite up-front about the fact that using Google and gdocs represents a compromise. He describes how he's unplugged himself from the "church of Apple" in order to get some more freedom and control, but that no ideal solution exists. Each choice is some sort of trade-off and the project's purpose is not to steer a purist agenda but rather to make conscious trade-offs and guide other less-technical folk in making similar decisions.
It's a hard row to hoe. I've been vocal on Google+ (feel free to read my own stream and circle me there if you wish) about how I would like Google to stop racing Facebook to the bottom of the privacy-invading cesspit. Like Gillmor I think Google-flavor evil is less bad than Apple-flavor evil or Facebook-flavor evil but neither of us is blind to the fact that all these companies act in evil ways sometimes. Mottos notwithstanding, all of them are public companies with legal obligations to make as much money as possible and that's what they do.
In that spirit then, I'd encourage my readers here to join in the discussion Gillmor is opening, to follow the project as it unfolds, and let's see what comes of it.
That question looks to be headed to the courts to decide, as nascent start-up Aereo has been hit with pre-emptive lawsuits by television broadcasters.
As Rip Empson explains in a lengthy opinion piece for TechCrunch, Aero's business model is narrowly and painstakingly tailored to fit through what it believes is a viable exemption to copyright restrictions. Here's how it works: courts have ruled that in cases where the end consumer does everything - selecting the content, recording it, reviewing it in-home and privately - the activity is legal. This was the basis for the recent case known as Cable News Network v. CSC Holdings in which Comcast was able to offer what it called a "remote DVR" service. Instead of having a DVR in the home (which is legal) Comcast argued it was simply providing remote server storage and controls to do the same thing. Since the activity wasn't infringing, courts held that Comcast's service wasn't infringing.
What Aereo proposes to do is allow its customers to tune in to any one at a time of 20 local broadcast channels. The channels will appear on any of the consumer's Web-enabled devices by means of a special antenna they'll rent from Aereo. This may not seem like a big deal, but it is something that has been sought after for a while by people who want to "unplug" from their TV and take the programming with them. As in the Comcast situation, only one copy of the information will ever be made per consumer and the acts of selection, storage, and streaming will all be under the consumer's control. Thus, the reasoning goes, it ought to be legal.
Of course the broadcasters don't want anyone bypassing them, and they're suing Aereo despite the company being backed by one of their own: Barry Diller, who is credited with (among other things) the creation of the Fox and USA broadcasting networks. Sadly I agree with Empson that the most likely outcome for this case is that it'll be bogged down in courts for so many years that the company will run out of money or the whole landscape will shift and moot the case.
The entire contents of the book are available in DRM-free format under Creative Commons licensing that permits reuse and adaptation. I've been interested in wicked problems since listening to Horst Rittel describe them in a 1986 talk. These problems are particularly hard to solve, not least because they tend to be unique and because how you define a wicked problem already starts to change the problem. One of the things that makes Kolko interesting is that he doesn't shy away from the tough stuff. This book should be great reading.
Apple has scored a significant, if not complete, win against Motorola Mobility in the German courts. As Florian Mueller explains in his FOSSPatents blog post yesterday, the win is based on a European patent and the judgment awarded not only prevents Motorola from selling products that were judged infringing, it also provides for Motorola to be required to recall and destroy infringing devices.
Apple did not win on all the counts it brought, so the victory is not complete but it definitely is significant. Motorola will have to engineer around the patents and will be further hampered in the products it can bring to market. The story doesn't end here - two more court judgments are due in the near future that could spell additional trouble for Motorola and of course for Google, its future owner.
Specifically, Elsevier has withdrawn its support for RWA, the Research Works Act. The Act would have prohibited open access to much federally funded research, reversing long-standing policy of many federal agencies that fund a great deal of the scientific research done in the US. Of course, this would have benefited publishers such as Elsevier, who would have become the sole (expensive, for-pay) conduits for this research. Without Elsevier's support, the bill appears dead.
In his post, Doctorow posed the question of "whether paying Elsevier is the best way to do science and scholarship." I think that's something of a rhetorical flourish as he (and anyone who works in the field) knows, the scientific and technical publishing machines are at best necessary evils. I confess I was wrong in thinking a boycott threat would not be effective, but I still believe that in order to get any real change from the publishers, academics will need to do a lot more soul-searching and changing of how they conduct important business such as tenure review cases.
Here are two items worth talking about, which come from such diametrically opposite points of view that I find myself wondering if they are even from the same planet. Each of them is interesting and worth a blog entry, but mostly I want to compare and contrast.
In my own defense I'll say that many of the proposals here are intended as legislative fixes to things that are broken with the current system. As I write this the top two listed proposals are "Curb Abuses of Copyright Takedowns" and "Ensure Openness in International IP Negotiations." Each proposal on Internet Blueprint comes with a more or less plain-language explanation and proposed legislative language; for example the Curb Abuses proposal bill starts off with language that specifically targets Section 512(f) of Title 17. Congresscritters who sign on to proposals can be listed as "Champions" for that proposal.
Internet Blueprint is looking for people to submit proposals, to sponsor existing proposals, and to have people use the site as a way to communicate with their legislators who might be willing to sponsor an idea into legislation.
In C-11 the Cartel is asking for liability provisions to shackle social media sites, liability for Web search engines, liability for any site containing user-generated content, a tax on iPods (yes, really), copyright term extension ("To infinity and beyond!" they might have yelled except that's probably a trademarked phrase), and a removal of protection for parody and satire. Which probably means I can't make more snarky Toy Story or Monty Python references if they get their way.
As Geist points out, all these new demands are on top of the fact that C-11 contains everything bad that was in SOPA/PIPA, plus massive damages for non-commercial individual infringement. Post a video of your kid lip-synching to a pop-music tune and you too can be fined CA$ 20,000 (yes, really). When Nate Anderson wrote that he expected the Cartel to try taking smaller bites of the pie, he must not have been looking north of the border.
If you think the answer is "the publishers" then boy are you living in the 20th Century. Back then publishers did indeed have a more or less complete lock on what you got to read. There were indie publishers and small houses and of course vanity self-publishing, but if you wanted real exposure (in this thing called a "book store" - two words, a store for books, odd to think of that now) then you went through a major publisher. A couple years ago I wrote a piece about the slush pile versus self-publishing; here in 2012 it's clear which has won.
So if the answer isn't "publishing houses" then who are the new gatekeepers? Turns out they're the big names in e-commerce: Apple, Amazon, and PayPal. Let me point to two stories that illustrate the new reality.
First, a story that hit the wires this week (here well summarized by Violet Blue for ZDNet): PayPal has decided you shouldn't read smut it doesn't like. That's right, the company is forcing its merchants that publish and distribute e-books to censor - that is, prevent you from buying through PayPal - books of a certain adult nature. As Blue explains, it's not naughty words that PayPal is objecting to, it's the kinds of stories told in the books. Try to let that soak in for a moment: the dominant online payment processor feels it has the right to tell you and me what sexual fantasies are acceptable, and which are not. Say WHAT?
And lest you think it was only PayPal that engaged in this sort of controlling behavior, let me direct your attention to today's Domino Project column from Seth Godin. In the column, he explains that Apple has decided it will not carry his latest book because that book contains links to Amazon.com listings for other books. Apple presumably feels this might cause some readers to buy those books from Amazon and this might somehow hurt Apple's business? Maybe? I dunno, I'm grasping at straws here.
What this adds up to is a picture of a broken system. The notion of a book store (or bookstore, if you prefer) as a place to get books has not just been transferred into the digital realm, it has been wholly disintegrated. In this century any corporation can stick its fingers into the stream and pluck out things it doesn't like, divert the flow away from you, and play favorites with its own content to the exclusion of all others. What should be incredibly liberating technologies (print on demand, self-publishing, electronic books) instead become the means for recapitulating the worst behaviors of the previous technology (payola, pay-for-placement).
This one didn't appear in time for the morning capsules, but it should be noted because it's funny: Techdirt has a piece up in response to an apology it received from DMCA takedown hoser Armovore. Key takeaway: today's laws make it insanely easy to suppress online speech you don't like. That. Needs. Fixing!
Scalzi has an update on his "Whatever" blog to the story about Cudo and massive copyright violations. This involves them saying "Oops! Sorry about that!" and trying finally to do the right thing, such as not distributing the CD. Scalzi appears to be in agreement with Hanlon that one should not attribute to malice that which can be explained by stupidity. But just barely.
Finally, Paul Tassi has a new column up on Forbes about Hollywood's plans to use gaming-style DRM for its HD movies. As he explained last time around, Tassi believes that the money would be far better spent in creating high-quality user experiences. Gamers have complained about many of the effects of DRM such as requiring multiple logins and always-connected networked machines. If Hollywood thinks throwing up this kind of obstacle is a recipe for anything other than more viewer frustration they are continuing to live in a different universe.
Today's blogroll brought me two stories of situations where takedowns aren't working. In one case an actual DMCA takedown notice was abused; in the other, someone failed to make a Reality Check and really needs to get a notice.
First up, John Scalzi put up a "Whatever" blod entry expanding on a story from Metafilter about Cudo. Cudo is an Australian bargain seller, which is offering an AUD 99 package for an e-reader complete with a CD-ROM full of books to load onto it. Great, except they probably don't own the rights to distribute those e-books. We're not talking about public domain works, here. These include hundreds of titles that Scalzi (President of the SF Writers of America) recognizes as belonging to active SFWA members. Seriously, this is "200-proof stupidity" to use Scalzi's phrase for it.
On the flip side was have Techdirt reporting on how important Google search results related to SOPA/PIPA reporting had been blocked out due to a bogus takedown notice. Although the post has been reinstated, it appears that the notice was a targeted action by a company named Armovore whose sole purpose is to send out notices on behalf of others. Given the target of the notice, the timing, and the complete lack of relevance to the claimed infringement, it's hard not to see this as a grotesque attempt to block people from reading things that Armovore's Cartel masters don't want them to read. When a government does it, that's censorship. When private companies do it... can we bring a case for fraud and civil damages at least?
There are a whole raft of problems here, not least of which is the hidden nature of things. Techdirt had no idea its content was being blocked - they only found out by accident. I'd bet that the vast majority of authors whose books are on Cudo's CD have no idea about it either. The second problem seems to be that nobody is applying any thought to these processes. How hard is it to ask "do we have the rights to these books?" or "do you own that copyright your'e claiming is being violated?"
It seems to me that the process is broken and people are not following the laws-as-written. How about we focus on fixing what's on the books and in operation already before we go passing more new laws and further restrictions?
I've noted in the past when Nate Anderson provoked the MPAA. This time it's the RIAA and specifically Cary Sherman, its CEO.
In a long thought piece published today, Anderson goes point-by-point through Sherman's latest post-SOPA salvo. Sherman published an item on the RIAA's blog in which he reviewed the (massively negative) feedback he got in response to his NYTimes op-ed. The original op-ed was addressed to SOPA's critics and used some pretty harsh language while supposedly asking for serious dialogue.
Anderson's response to Sherman's blog post is nothing less than heroic. He points out that he is himself a creator, dependent on publishers, copyrights, and all the associated mechanisms to make a living (shades of Wales and Walsh) and then brilliantly deconstructs pretty much everything Sherman has to say.
Anderson also doesn't mince words, calling Sherman's piece "absurd" at points and "quibbling" at others. Crucially, and this is where I think he hits his best home run, Anderson notes that Sherman still is not engaging with the substance of the anti-SOPA/PIPA/ACTA objections. The full-on "no, stop, wrong and here's why" that people all across the spectrum put out in the run-up to the blackout and withdrawal of SOPA seem not to have penetrated Sherman's reality, leading Anderson to conclude that Sherman's claims of defenselessness are "poppycock".
I found Anderson's final section "The path ahead" particularly interesting as an exposition of how Anderson sees the next rounds of the Copyright Wars. As I've noted recently, it feels like we've broken out of a grinding trench-warfare status into something new and potentially much more fluid. Anderson thinks that the Cartel will continue to fail to understand its customers and their anger and so will try to move behind the scenes into lobbying and biting off smaller chunks of the legislative and regulatory pie, hoping for less negative publicity and greater success.
Who was it said that the price of liberty is eternal vigilance?
Last time the issue was Amazon hosing e-book readers as part of its war with publishers. This time it's the customer who gets the good end of the deal and the self-publishing author who gets to suffer. The reason is that Amazon not only controls the price you pay for a self-published book but in doing so it controls the royalty it pays the author. If you are someone like Hines and price your book at USD 2.99 then you expect to get royalties based on that price.
Certainly that's how it works with books published by a standard publishing house. Amazon, like any retailer, is free to change the cover price - often by discounting - but it still pays off the publishing house as if it had sold the book at full price. However if you are self-publishing through Amazon then it has sole discretion to discount your book AND pay you royalties based on the discounted amount. Ain't that grand? No one can argue that this isn't part of the Amazon Terms of Service, though the language does seem to leave them a great deal of wiggle room. I am reminded of the blog post from mid-January about Konrath making $100,000 and how necessary it is for him to manage his pricepoints actively, with experiments and data gathering.
As Hines says, "Sometimes going it alone sucks". Major publishing houses may not be the greatest institutions in the world, but they do serve a number of useful purposes. If one is going to self-publish, one really needs to police every step of the process oneself.
In a brief blog entry titled "Oatmeal, McGuire, and Entitlement", Hines relates the story of fellow author Seanan McGuire who was apparently subjected to a great deal of abuse because readers were disgruntled that the e-book version of her latest book didn't appear until two weeks after the print version.
Hines avers that he is no fan of DRM, and agrees that HBO is making a mistake with their marketing. However, he takes umbrage at what he sees as entitlement on the part of fans: that sense that they ought to be able to acquire what they want, when they want it, in the formats they desire, so long as they're willing to meet the stated price. Err, um, yeah. And no.
Hines is right - nobody is entitled to buy anything, and certainly there's no cause to attack someone who isn't even at fault for your inability to make an instantly gratifying purchase. But he's also wrong, in that entitlement, or instant gratification, is the major motivating force behind virtually all electronic commerce. The vast engines of marketing and media and expectation have been pushing for the last couple decades toward instant gratification, instant fulfillment, always-on, 24/7/365 shopping. We made of Mammon a god, and you are surprised when his thwarted worshippers rage?
People didn't just up and decide overnight that they were entitled; they have been trained into it over and over. It's not a unique attitude, it's a carefully cultivated outcome of the modern consumerist society. You may not like it but it's hardly surprising.
Dear publishers, I believe you were warned that wrapping your e-books in DRM was, in effect, handing the Amazons and Apples and Barnes & Nobles of the world a loaded gun that was pointed back at yourselves. Now it looks like Amazon pulled the trigger.
Earlier this week Cory pointed on Boingboing to this piece by Michael Calder on the PublishersLunch blog. In it IPG (Independent Publishers Group - the second-largest independent book distributor in the world) reports that Amazon presented IPG with a new contract and when IPG didn't go along, Amazon yanked all IPG-distributed ebooks from its Kindle store.
Hey, no problem, Kindle users, you can just move your ebooks over to a Nook, right? And continue buying your independent tiles over there, right? Wrong. Don't get me started. You, dear e-book readers, are screwed. You are locked in, locked down, and at the mercy of every sand-throwing bit of childishness that the e-book world can devise. Amazon didn't yank the physical books; had it done so we could trivially get them from another seller. But since those Kindle bits are DRM-locked you can't do anything with them that Amazon doesn't want you to do and moving your reading to another e-book reader is probably #1 on the list of things it doesn't want.
You can read Cader's column for the details if you care. The gist is that Amazon wanted better terms for itself and it's now holding every Kindle user's book purchasing list hostage until it gets what it wants. I don't actually have an opinion on which side is right in this latest stupid dispute. I just wonder why anyone pays hundreds of dollars for an e-book reader so they can put up with this shit.
The comic shows a fanboy who has just finished reading the George R.R. Martin book and wants to see the HBO series based on it. He's hip, with paid subscriptions to sites like Netflix and Hulu, as well as iTunes and Amazon accounts and... he can't get what he wants. Even going to hbo.com just leaves him frustrated. So what does he do? He torrents it.
The user experience is something I've talked about many times here on Copyfight (see here, or here for just two recent examples). I make my living creating user experiences and it's stunningly clear that the Cartel does not understand my domain of expertise at all.
One reason the Oatmeal comic works so well is that its message is simple:
Dear HBO.
The purpose of having a digital version of "Game of Thrones" is not to try and sucker more people into buying your crappy cable channel subscription. It's to make money by giving them what they're looking for.
There are thousands, maybe even tens or hundreds of thousands, of Martin fans out there right now who will happily pay you money for this product, which you can give them. Their wallets are open. They are trying to give you money and you are stopping them. That choice remains as stupid as it ever has been, or maybe more stupid because people are now - more than ever - used to buying at the click of a mouse. And if you continue to be hostile to your potential customers then I am damnedsure not going to be sympathetic to your whining about your supposed misfortunes afterward.
The theme for February seems to be retrospective analyses. I hope this isn't boring everyone; I'm finding it fascinating to see the Copyright Wars at last moving into a new phase. I am devouring analyses from everyone I can find, trying to figure things out for myself. Feel free to contribute your links and ideas, too!
Cellan-Jones notes that the large-scale protest venue jumped from the US (anti-SOPA/PIPA) to Europe (anti-ACTA) and that if one is to judge by the size of the visible crowds, the impact isn't evenly distributed. London's visible protestors numbered in the hundreds where tens of thousands of Europeans took to the streets in each of many cities. Cellan-Jones's primary point seems to be that even though Western governments have changed in the face of Internet protests, more authoritarian and recalcitrant regimes haven't. Therefore we're not 'winning'.
Say what? Oppressive regimes don't change in the face of peaceful mass protests, nor in the face of armed rebellions. Just ask the thousands of Syrians... oh wait, you can't, their government murdered them. Seriously, now, what does Cellan-Jones (and similar nay-sayers) want to see?
Wikipedia is not opposed to the rights of creators — we have the largest collection of creators in human history [...] providing unrestricted access to the world’s knowledge. Protecting our rights as creators means ensuring that we can build our encyclopedias, photographs, videos, Web sites, charities and businesses without the fear that they all will be taken away from us without due process.
As creators, then, they claim what they see as their (and our) rightful place in the media industry. If laws are to be written that are for the benefit of the media industry (see once again The Breyer Test) then those laws must benefit... well, us. We who write for Wikipedia, who blog, who post to YouTube, Twitter, Flikr, or in other ways give our time and creative energy to enriching the mediasphere are equally as deserving of legal protection for our honest innovative creations as the Cartel.
I wanted to pick one thought from his conclusion for my own comment. He writes:
Copyrighted works are important, culturally and economically, and they are worth protecting. They are not, however, sacred objects that we should protect at any cost.
I wanted to pull-quote this because it highlights a problem in the rhetoric that I've experienced in my own talks on these topics. If I say that I'm opposed to this or that regulation, or to a particular form of enforcement, or to a campaign of mass lawsuits, or whatever, then people leap to the conclusion that I must therefore be in favor of unfettered theft or denial of all rights and remuneration to artists. This is not true - I've tried in this blog to show a third way, to celebrate people and organizations/businesses that are crafting it. I think Post would agree that there are reasonable and appropriate ways to regulate, but SOPA wasn't even close to it.
You may recall around the end of last year it appeared that Apple was in a world-wide patent war against Google's mobile OS and its incarnation on various devices primarily produced by Motorola and Samsung. Apple didn't seem to be making much headway at first, failing to get injunctions and having some problems with counter-suits.
That may be about to change, at least in the US. A few days ago, Florian Mueller published a long piece on his FOSSPatents blog detailing Apple's latest salvo. Apple is asking for a preliminary injunction against Samsung's Galaxy Nexus, the flagship product in the most recent line of Android releases. Mueller covers the maneuverings in the US cases so far - Apple's first suit hasn't gotten them the injunctive relief they wanted and is on appeal, and most importantly Apple's new lawsuit is based at least in part on four patents that haven't been brought into the fray yet.
Mueller's opinion is that these patents, three of which issued only recently, are quite strong. I have read them over and I must say that I'm impressed. Even though they're 2011 issues they have filing dates of 2005 and 2004, and incorporate patents granted during those years. They also have a truly impressive array of both patent and non-patent prior art cited, some of which goes years back from the patent filing date. If the USPTO allowed these patents in the face of all the listed prior art it will be a real challenge to invalidate them. It will be interesting to see if Google & co try that approach. Of course they will argue that their products don't infringe the patents anyway, but that's also going to be a tough case to make, as Mueller details.
An alternative would be to try to code around them. For example, the '172 patent describes a fairly specific interface for providing word-by-word correction/suggestion as users type:
in a first area of the touch screen display, displaying a current character string being input by a user with the keyboard; in a second area of the touch screen display that is between the first area and the keyboard, displaying the current character string or a portion thereof and a suggested replacement character string for the current character string on opposite sides of the second area; replacing the current character string in the first area with the suggested replacement character string if the user activates a space bar key on the keyboard; replacing the current character string in the first area with the suggested replacement character string if the user performs a first gesture on the suggested replacement character string displayed in the second area; and keeping the current character string in the first area and adding a space if the user performs a second gesture in the second area on the current character string or the portion thereof displayed in the second area.
It seems like using a different method of laying out the screen, or a different keypress for auto-completion, might be a viable workaround.
However, the '604 patent appears to be extremely broad and covers a fundamental technique for finding, ranking, and displaying heuristic search results. Again, I'm no lawyer, but I don't immediately see a way of coding around this patent without losing core functionality not just for Google mobile but for Google's entire search business.
Given my recent note about how patent infringement should be enforced, it's interesting that Apple is aggressively pursuing injunctions. In effect, they're trying to knock out their biggest competitor, and likely no amount of monetary settlement would dissuade them from this plan.
It continues to be exceedingly difficult to track everything that's going on in the Copyright Wars right now. If I may be permitted to abuse military analogies a bit: for a couple years it has felt like the Wars were in trench warfare mode. The Cartel was slowly grinding down P2P companies and suing thousands of its own customers, doing its best to defend antiquated business models and high profit margins in the face of new technologies. Meanwhile, the cultural terrain was shifting. SOPA/PIPA were like a big offensive - had they succeeded they would have been major changes in the technological and legal landscape. And the Cartel failed. Bigtime.
However instead of retreating and licking its wounds the beast pressed back on all fronts, from Chris Dodd talking tough in the US, to C-11 in Canada, and the world-wide threat to liberty that is ACTA. Herewith, then, three perspectives to help you keep the situation in view.
First, techdirt lets us know that the Cartel still hates us all. Contrary to people who said that the Cartel might have learned something, or been the least bit humbled, or come around to the idea that talking before legislating was a good idea... nope, none of that. techdirt dissects, piece by piece, the screed published in the NY Times by Cary Sherman, head of the RIAA. You can read the detailed point-by-point there; I'll just say that an organization which has dedicated years and lost millions of dollars suing its customers is just not going to change its tune overnight.
Second, Tech Review has an interview (which I saw linked from Boingboing) with Aaron Swartz. This is a man who has made a name for himself in the tech world many times over: helping to create the RSS 1.0 standard, helping to found Reddit, and most recently getting in trouble allegedly for using a network closet at MIT to grab more or less all of the JSTOR online database of academic journal articles. If you haven't heard of Swartz's name in connection with the anti-SOPA movement that may be because you (like me) weren't paying attention to SOPA back in September of 2010 back when he was circulating one of the first petitions to raise awareness of and opposition to the bill.
The Swartz interview ends up being somewhat light, and steers clear of his current legal troubles. He does point out, as others have, that the Writers Guild is one of the few organizations in Hollywood that seems to 'get' the Internet, in part because the protracted strike forced many of them onto the net and they've begun to see how they can make money there.
As an intro piece, Post's article probably doesn't contain any new material for those who've been playing along this whole time. He doesn't mince words, though, calling SOPA "outmoded, unworkable, and unjust" and stating categorically that "SOPA Undermines the Rule of Law" in discussing things such as SOPA's proposed ex parte proceedings. Such language is not just rhetorical flourishing: Post is advocating for a rule of law that promotes and protects freer and more open interchange on the Internet, and reaching out to a potentially large and so-far untapped audience.
Like it or not, legislation is often written by lawyers - both Congresscritters and legal people on their staffs - and lawyers often testify to Congress about bills that are under consideration. If more of the legal community can be motivated to understand and oppose bad legislation, particularly in an era when too many in Congress freely admit they don't use and don't understand the Internet, then this sort of advocacy is sorely needed.
I realized the version that got posted was poorly edited to the point of near-incoherence. Hopefully this version is clearer. I have not changed the intent or links of the posting, just cleaned up the middle paragraph.
I apologize for the crap posting and will try to be better about self-editing.
You can download the full PDF of the article from the SSRN URL above. The simulations they report on this time compared property rules against entitlement rules and found that (contrary to expectations) the liability rules performed better.
Background: An entitlement rule is one that tries to examine situations where two sides' fundamental rights are in inevitable opposition (e.g. the right to perform an activity that is noisy versus the right of neighbors to have a peaceful silence) and determine who is entitled to their activity or condition, imposing limits on the other party. Entitlements are generally protected by property rules in US law. Liability rules, by contrast, only give the opposing parties the ability to seek a civil case (sue) which of course comes with large up-front costs. To oversimplify vastly it's the difference between calling the cops and calling your lawyer when you're looking for help. Wikipedia, as usual, has a much more detailed explanation.
Tomlinson and Torrance argue that US patent law has recently witnessed a shift away from property rules and towards liability rules and that liability rules do better in terms of promoting innovation. This shift stems from the eBay v MercExchange Supreme Court case in 2006. As a result fewer companies are getting completely enjoined from producing products; instead, they're getting hit with financial judgments. Tomlinson and Torrance construct computer simulations and do human experimental trials to see which way of doing things has better outcomes. Though we tend to think that the lawyerly mess around infringement suits and counter-suits and expensive settlements is a bad regime, it seems like it performs better than the alternative, injunctive, method.
It's an interesting idea, suggesting that the 2006 decision would stand up to the "Breyer test" in Golan. It may also support the general trend to settle rather than fight in patent cases - if companies believe that the end of a (long, expensive) trial is going to be a monetary judgment anyway then it makes sense to take a cheaper settlement deal earlier on.
The Cartel would like to say "No!" However, a New York judge has said "Maybe." And "Not so fast!"
Quick recap: "First Sale Doctrine" is a uniquely American exemption to copyright, which says that if you legally bought a copyrighted work you are permitted to resell it. The exemption has been narrowed in recent years and it's interesting that this ruling was made in the Second Circuit, which we learned last September had issued a horrible ruling blowing a huge hole in first sale for books. Other cases have attacked first sale as applied to used video games, CDs/DVDs, and other electronic media.
ReDigi appears to have gone to some lengths to shield itself from becoming a platform for unfettered (and probably illegal) trading. For example, you can't rip tracks off your CD and list them there. In Kravets's WIRED piece on the start of the lawsuit he details a bit more of how the company works to ensure that only one registered digital copy of a track is made and kept. Once you put the tune up you can't access it on your iTunes anymore and once the buyer has paid, no copy of the track remains in the store's servers.
Of course none of this is good enough for the Cartel, but what else is new.
(sorry I couldn't resist that one). Cuckoos, you may know, sometimes lay their eggs in other birds' nests. Now industrial giant Honeywell is accusing 2011 start-up darling Nest Labs of having laid a virtual cuckoo's egg by producing a product that violates at least half a dozen Honeywell patents and may infringe on other companies' designs as well.
Nest Labs got a lot of publicity for its release last October of a "learning" thermostat - a digital device that uses a number of techniques to regulate your home's heating/cooling use in more intelligent ways, saving you on energy costs. Nest Labs has Tony Fadell, the former chief architect at Apple, as one of its founders, which helped it in the publicity arena, and its designs are said to embody the famous Apple design aesthetic.
Unfortunately, according to a pair of stories on Gigaom, the device may embody a lot more than just an aesthetic. In yesterday's first story, Katie Fehrenbacher detailed the outlines of the case that Honeywell wants to make against Nest and retailer Best Buy, listing seven areas where Honeywell is claiming to a Minnesota court that Nest has infringed.
Then in an update last night, Fehrenbacher posted the juicy details, including naming the six specific patents that Honeywell is using to back up its charges of infringement. Interestingly, Honeywell has also included a third party's (Kohler) product design image, claiming the two are "strikingly similar". Does this portend more suits against Nest, possibly over design patents? Is that "Apple look" perhaps not so unusual or distinctive as last year's gushing commentaries led us to believe?
That, I suspect, is something we'll see settled in court. The market for smart thermostats right now is small, but growing, and Nest has some very big investor names behind it. I don't think they're going to want to dump their investment and like a lot of these infringement suits I think they're going to find it wiser to deal than fight. Whether Honeywell wants to license its patents or use them to keep the hot start-up out of the business is still unknown.
Contrary to what I may have implied yesterday, Tassi says that he doesn't believe the Cartel executives per se are dumb, just that they're behaving in un-clever ways. If so, the question is why. Tassi makes the familiar argument that the Cartel is deliberately overstating - if not outright lying and distorting - its losses due to illegal copying. At least, these numbers and reasoning are familiar to those of us who've been in the Copyright Wars for years; maybe they're less obvious to your average Forbes reader.
Finally he points out that the industry's continual focus on blockbusters can have huge distorting effects. A badly performing movie can easily lose a studio USD 100 million or more and yet they continue to invest in ever-bigger and ever-more-costly projects. This, he asserts is prima facie evidence that the industry is not in trouble.
Eh... maybe. Once you've built a business model around blockbusters it can be very hard to climb down. It's not just movies that are built around this - books, music, and drugs are all blockbuster-based business models. Hollywood doesn't seem to know how to do low budget; they seem to leave that to the independents to make and then pick up distribution. If you're built to do a few big things it can be hard to retool to do lots of small things. Also calculating P&L on a movie can be an exercise in black magic; just ask anyone foolish enough to sign a contract for a percentage of a film's net. Theater attendance is dropping and it's not always reliably the case that you can make up lost in-theater revenue via overseas or other ancillary sales.
When the Cartel smashed Napster back in 1999 and I first started blogging about Copyfighting, Paul Tassi wasn't even in high school. Now he's writing for Forbes magazine and he has some very definite things to say about where we are and how he and, I think, his age group peers view this conflict.
His argument is one we've made here for many years: service trumps all. ITunes wasn't the first MP3 service and by many measures wasn't the best. But it had a service orientation, disruptive low pricing, and no friction-inducing mechanisms like subscriptions. The user experience was good. Did the advent of iTunes stop people illegally copying music? Hell no. Did it prove that legal music sales could capture billions of dollars right alongside illegal copying? Hell yes.
Of course, the idea for and implementation of iTunes didn't come from the Cartel. It came from a tech company that is used to existing in a world where competitive value propositions rule the day. Tassi's piece argues that in order to survive, and to combat movie sharing via things like illegal torrents, Hollywood needs to refocus on providing a better user experience. Again, this isn't a new argument. But it's being made in Forbes, not on some random blog nobody reads, and it's being made by a guy who grew up steeped in the anti-piracy jihad of the last decade. And if it wasn't clear that he and his generation couldn't give a rat's ass about this jihad before now, it should be abundantly clear now.
Nearly two years ago I wrote that my most optimistic outcome for the Copyright Wars lay with the next generation. Kids who made remix culture mainstream. Kids who grew up knowing that the digital economy was all about them, marketing to them, getting their attention and if they didn't like the terms of the deal in front of them it was easy to click on to the next deal. I think Tassi is Exhibit A that I was right. Sure, he dings movies and DVDs for being overpriced, just like Roger Ebert and Dan Gillmor. But unlike us old folk he's not just grumbling and then paying out anyway. He's saying "make me a better deal and I'll switch off BitTorrent; fail to make me a better deal and I'm gone."
The essay starts with the recent defeat of SOPA/PIPA and works backward to a nice set of links to past important battles in the Copyright Wars. Aheram is clearly reacting to currents within his own libertarian intellectual-thinking tradition, where some have taken sides with the pro-SOPA forces or been "dismissive" of SOPA.
As I am not libertarian, I was interested to read their point of view. In particular, Aheram asserts that copyright itself, by virtue of its government-granted monopolistic status, is an illegitimate infringement on sovereign private property rights. I suspect that others - even other libertarians - might not agree there, though I see the logic that is being followed.
Again, there's a definite link between Tea Party streams of thought and libertarian streams of thought, particularly as applies to smaller, non-interfering government. I don't quite buy Baker's strong assertion that this wing of the populace had the most effect, but it's quite clear that when you tally up those who finally came out against SOPA the Republican party was much better represented than the Democratic, which may well be looking at how many dollars the Cartel puts in its campaign coffers.
If Baker is right, then we really do need more pieces like Aheram's to reach out to untapped or skeptical communities and help them see where their political freedoms and Internet freedoms overlap.
After the victory rush of defeating SOPA/PIPA it has felt like attacks were renewed on all fronts. There's the C-11 mess in Canada, and another bad bill proposed in the US Congress. And of course, the beast that is ACTA still lumbers along. Trying to put it all together is daunting, at least for me. If you find yourself similarly confused and overwhelmed, let me recommend you kick back for an hour with Michael Geist's latest keynote talk.
Professor Geist has always been one of the go-to guys for clear analysis of major legislative battles in the Copyright Wars, and a keynote talk has a format that lends itself to engaging summarization. This address, which he just posted a couple days ago, was given at University of South Florida in St. Petersburg. It's just under an hour and I think will help us all think more clearly about the current state of the immediate post-SOPA world.
John Battelle posted an interesting piece to his Searchblog this week describing a surprising personal experience and its relationship to sharing and culture. Battelle has had a hand in founding WIRED, Web 2.0 (the conference), and The Industry Standard, among other things. He's seen more than a few crowds in his day and has a good feel for them. The Searchblog focuses on search, but also on the intersection of media and culture. So it's a little bit of a surprise to find him writing there about his experiences at a Wilco concert, titled "What Happens When Sharing is Turned Off? People Don't Dance."
As he tells the story, he found it incredible that people at the show were mostly not dancing. He says "It was as if the crowd had been admonished to not be too … expressive." In fact, no one had told the crowd not to be expressive, but the band had gotten the venue to enforce a strict "no smartphones" policy. Deprived of the ability to photograph, tweet, capture, and share the experience, the crowd largely shut down.
Battelle muses on the phenomenon, and how these devices have changed our experiences in the past decade or so. Certainly people moved to bands before there we were mobile phones and nobody brings a mobile to a mosh pit. So perhaps Battelle is putting too much emphasis on the device and its influence on social culture. Or maybe not - maybe a rule like "thou shalt not share" is interpreted - even subconsciously - as "thou shalt not experience fully". Concert bootlegs have existed probably as long as people were capable of carrying recording devices and while some people may be perfectly happy in the moment between themselves and the performer maybe that's an isolated experience. Maybe the majority experience is to become fully immersed and to want to share that joy with friends, both present and remote.
The blog post mostly seems to be "rah rah electronic journals in math" which is all well and good. Yay electronic journals. But it misses points I thought I'd raised in my first blog post, which I'll try to summarize here:
What do you expect Elsevier to do? For example, asking them to join the forces opposing the abomination that is ACTA would be a good step in showing they understand why their support of SOPA/PIPA was a mistake.
How do you expect a move to publication in electronic journals to impact the all-important tenure and promotion cases that academics must make? I believe it's the tight binding of sci/tech publications to these key career steps that gives companies like Elsevier extraordinary leverage. Until academics themselves work to break those ties I don't think much is going to change.
Franzen is concerned for the physical book. He comes across as not precisely anti-technology/anti-Internet, but as someone who sees the creative writing environment and its output as physical books as somehow separate and better. Scalzi is, shall we say, skeptical. Both make good points and are worth reading.
I am myself conflicted. I live my life online and am constantly connected. But I have also been influenced by Muriel Cooper and her love of typography and the printed medium. Books are beautiful and useful in physical form; I don't want e-books to wipe that out. I want the two to co-exist, as each has its benefits.
There has long been an undercurrent of opposition to the publishing houses that control scientific and technical publication. Unlike other publications that at least nominally pay their contributors, these publishers profit off the free work of researchers, editors, and reviewers - none of whom get paid for their journal work - who are captive to a "publish or perish" ecosystem within academia. The journals are often quite expensive and are sold to libraries in high-priced bundles.
Almost nobody is happy with this arrangement: authors complain that their work is taken and used for someone else's profit; libraries complain that these journals' costs eat up a huge amount of their budgets, which are already tight; publishers complain that they can't make (much) money on this business despite these arrangements.
Even though I'm no longer in the research world I still have many friends and colleagues who are, one of whom sent me a link to "The Cost of Knowledge" petition against Elsevier. The online petition sports over 1100 signatures as of this writing, all active researchers and all pledging not to do more free work for Elsevier unless "they radically change how they operate."
The petition lists three grievances: journal pricing, the practice of forcing libraries to buy large bundles of journals, and Elsevier's corporate support for SOPA/PIPA and similar legislation that is antithetical to free and open information flow. Sadly it doesn't list any specific steps that Elsevier should take that would satisfy the petitioners. As an expression of grievance it's clear, but how Tyler Neylon - the petition organizer - expects things to be different is less clear.
The petition also links to the PolyMath Journal Publishing Reform wiki page, hosted by Michael Nielsen, himself a widely published researcher. The blog page lists no fewer than five separate petitions including "The Cost of Knowledge" all of which are trying to use researcher community people power against the publishers.
Although Nielsen's page lists some successes in getting Elsevier in particular to change its behavior, I am dubious that any of the big sci tech publishers will change their practices. These publishers are just as doomed as every other hardcopy publication in today's world, but they can use their monopoly leverage to stave off that doom for many more years. Asking them to give it up is asking for a form of corporate suicide, which they have no incentive to do. If academics really want things to change then they need to start with their own houses; for example, by changing what gets counted for tenure cases and what weight is given to publication in open and online venues.
I've mentioned the existence of highly respected online specialist communities before. These are places where the top people - as recognized by their peers - go to share and discuss new research ideas. People who are experts within the community know who is contributing good ideas and making a difference in advancing the theory of the field. And I'll bet you it matters not one whit to their tenure cases. Change that, and you stand a chance of breaking the sci/tech publishing stranglehold. Until real action happens on the academic side, petitions remain just symbolic protest.
Copyfight spent a lot of time in 2010 talking about remix culture. But even though the remix has now thoroughly soaked into the social consciousness it still needs legal reforms and exemptions to support it.
The target of the petition is the Copyright Office's existing (but about to expire) exemptions allowing creators to break DVD encryption in order to sample video clips, and also a forward-looking request asking the Office to approve a parallel set of exemptions for "Internet videos" which would include online vids, streamed content, and other content that just happens not to have been burned down to a specific plastic platter.
One item that is included in this petition but that hasn't been talked about much is the importance of this sort of remixing as political statement and for teaching. From the Arab Spring to #Occupy, a tremendous amount of political action and information has been released solely in Internet video form. Anyone who wants to assemble any sort of educational, critical, or political-statement material on these topics will inevitably have to rely on these videos. I think it's extremely important that these forms of education and action not be barred by copyright laws that are lagging the times. I hope you agree and will join me in signing.
Gotta love a guy who doesn't mince words. What Bott and lots of other less-vitriolic writers are up in arms about is Apple's iBooks 2.0. I mentioned this little gem a couple days ago with particular reference to the idea that what Apple's doing might well be antitrust-worthy. That's not what has Bott up in arms, though.
In the first column, Bott dives into the really nitty-gritty of Apple's EULA, pointing out that not only does Apple claim the right to sell whatever iBook you make it also claims the right to prevent you from selling it elsewhere, even if Apple rejects it. Still think using iBooks is a good idea? You're braver than I.
As Bott notes, even if this is a condition on your use of Apple's software it's an unprecedentedly restrictive one. It is as if Adobe claimed you couldn't sell any photograph you processed in Photoshop (except through Adobe). Or if Microsoft claimed you couldn't sell any book you wrote in Word (except through Microsoft). If those examples seem ludicrous on the face of it, that's only because word- and photo-processing software is well established in the marketplace and there are competitors and years of user expectations in place. E-books are a new beast and it looks like Apple wants to own the cow and the milk, in perpetuity.
In the second column, Bott digs back in to describe how Apple is sabotaging not just individual authors' work but the entire ePub (EPUB) standard, which it had previously supported. This one, as he notes, affects not just e-book authors but also publishers and readers.
EPUB is an open format, handled by an organization known as the International Digital Publishing Forum (IDPF). Apple is a member, of course, as are big names in the software industry (Adobe, etc), in graphics (Agfa), and of course dozens of publishers from around the world. EPUB is XML-based and uses key XML concepts like namespaces and references to XML standards as maintained by the W3C.
Bott's column lists several ways in which iBooks 2.0 deviates from (and thus breaks) the standards, including proprietary namespaces, incompatible and non-standard CSS extensions, and critically it defines a new MIME type. Without going into too many grotty details, a MIME type is a way for a data file such as an e-book to tell various processor programs what its contents are. Programs like Web browsers that handle multiple content types (e.g. text, images, flash elements) use MIME types to know what program should be invoked for displaying each bit of the page. A program that knows how to display one MIME type will often reject all others because it doesn't know how to handle them.
So if you have, say, an e-book reader that is expecting to process files of type "application/epub+zip" - which is what the EPUB standard says that ePub books should be, then when it encounters type "application/x-ibooks+zip" it's just not going to display that file. And presto, all your iBooks 2.0 output is no longer viewable on any other reader. That's standards compliance for ya, sure enough. Apple also broke inbound compatibility, in case you care. An EPUB-standard document can't be opened in iBooks 2 either, so if you were thinking about collaborating with another author and passing files around, you better make sure that your partners all have iBooks 2 or you can't share with them.
Last time I closed by noting that e-book authors should probably steer clear of iBooks 2. This time it looks like anyone who is interested in improving the future of e-books should steer clear. C'mon, Apple, this is the kind of anti-standards doublespeak evil we used to bash Microsoft for.
It seems that various scientific and technical publishers are raising objections to the USPTO using their publications for prior-art searching. The PDF lays out the Office's position and policies around fair use. It's actually somewhat complicated but the document does a good job of describing things: In some cases, the Office has subscriptions and other forms of paid access. In others it's making use of public sources, or submissions by applicants. In some cases, the Office is providing copies of this material to applicants as part of office actions such as patent rejections or re-examinations, both of which may rely heavily on prior art such as scientific/technical publication.
The Office claims, I think with good justification, that even in cases where it is providing personal copies of non-licensed literature to applicants it is doing so under a protective umbrella of Fair Use. The PDF lays out the Fair Use justification for these practices and notes other steps the Office has taken to protect copyrights, such as not placing non-licensed material online where it could be arbitrarily copied.
Finally, the Office claims (again, I think with good reason) that it requires applicants to be responsible for copyright protection of materials that they submit to the Office and if applicants make copies or distribute materials that the Office supplied them as part of an action, then it's the applicants who bear the responsibility for this (possibly illegal) copying.
What I can't figure out is why this is an issue in the first place? Isn't one of the biggest problems we have with patents today the craptastic lack of prior art on submissions? Isn't it in everyone's best interest to use the available sci/tech literature to make the best possible prior art decisions? If there was some kind of print-on-demand feature for all sci/tech literature inside the Office I could understand the concern, but who exactly is up in arms over what seems to me to be perfectly normal uses of publications?
Or is it just that Fair Use has gotten so badly thrashed in the past couple decades that people sort of conveniently forget it even exists in statute?
I freely confess that I'm even more ignorant of how the UK regulates copyright than I am about how the US does. They're a signatory to Berne, obviously, and work-for-hire is not legal there. But beyond that I'm pretty ignorant, and I find myself utterly boggled by two stories out of the isles this week.
In the first story, the BBC reports that student Richard O'Dwyer has lost his appeal and is set to be extradited to the United States for copyright infringement. The Beeb has the sense at least to put 'piracy' in quotes because even if O'Dwyer is guilty of everything he's charged with, all he did was provide people with URLs. He hosted no content, uploaded nothing, shared nothing. Since when did putting together a list of URLs become an extraditable offense? And will Google's UK executives be in handcuffs on the next plane? 'Cause I'll bet you a good English pint that every link you can find on O'Dwyer's seized computers and TVShack.net Web site is also listed in Google's search results (and Yahoo! and Bing! and probably a dozen others).
But seriously, folks, what the hell is going on here? The BBC's backgrounder page on extradition points to some controversy about how it's easier to get extradited from the UK to the US than vice versa, but seriously isn't copyright infringement a civil tort? Since when did this get to be an extraditable offense at all?
Then there's the case of the too-similar photographs. Let's say I'm in New York City and there happens to be a traffic accident. I snap a picture of it - the cars are there and here, policeman just so, pedestrians along that side, etc. I publish this photograph and copyright it. But it's a bad intersection and the next year there's another traffic accident at that same place. A witness whips out her cell phone and takes a picture. The two images are substantially similar - major elements, composition, angle, lighting, etc. Despite these similarities I can't say that the woman has violated my copyright, since her photo is an original composition in which major elements resemble mine. Right?
Well, um... In the case as reported by Amateur Photographer in the UK, the company New English Teas has been found to be in violation of a copyright owned by Temple Island Collection (a souvenir maker) on an image of "a red London bus against a black and white background of Big Ben and the Houses of Parliament, with a blank sky". Come again?
In fact if you look at the images side by side, as you can do in this Digital Photography Review story on the case, the photographs have significant differences in terms of angle of the shot, depth of focus and placement of key image elements, and in contextual and background elements. Really, they're similar photographs only when you describe them at a high enough and abstract enough level. And in fact the judge agreed that the two images were not identical, but felt that the visual composition was in fact the copyrighted element here.
Which leads me to ask my expert readers: Is this really a copyrightable element, separate from the copyrightable nature of the photo as a whole? If so, are we really in for the world of hurt I think we're in for? Because, really, there are a lot fewer compositional arrangements than there are photographs and if I can copyright, say, the composition of a rider on an animal mount just how broad of a copyright am I going to hold? Or is this some nonsense peculiar to the UK?
Y Combinator is Paul Graham (and partners') early-stage seed-funding organization. Part angel investor, part venture capital introduction, and part hip techster scene, it often has an impact well beyond the small amounts of capital it invests in early stage companies. Graham is also a respected essayist on the Web in his own right. So when Y Combinator puts up something called "RFS 9: Kill Hollywood" that gets some raised eyebrows.
The page appears to be a response to the recent fracas over SOPA/PIPA and Hollywood's insistence that its 1960's-era business models are deserving of special legal protection regardless of the disruption that would cause to the 21st-century Internet. But I digress. "Kill Hollywood" is looking for companies that want to "hasten the demise" of movies and TV. The underlying theory is that in 20 years people will (should) do things other than passively consume entertainment and that funding companies now will lead to that sort of social change in a couple decades.
It's a reasonable theory and part of the job of a good angel investor is to find, promote, and take risks on long shots and gambles that may not pay off for decades. But the hostile approach doesn't necessarily sit all that well with people who like movies, despite what they may think of the studios. One such impassioned response came from moviegoer.com in their Moviegoer blog, titled of course "Kill Y Combinator".
Moviegoer itself is an (iPhone) app-centric company, dedicated to the idea that going to the movies is a social experience for which a mobile device app can be a boon. So naturally they have a strong bias toward continuing to encourage people to go to movies and do movie-related things for decades to come. The blog post starts off drawing a line - placing Moviegoer on the anti-SOPA/PIPA side of the discussion but arguing that Y Combinator's call is a kind of "road rage" response.
Certainly the anti-PA group is clear that Hollywood's approach has been aggressive - and not helped by Dodd's attempt to talk tough on Fox News, a tone he abruptly changed. But does one side's nerdrage justify a call to kill it off? Moviegoer argues no, with the sort of circular reasoning that if movies and TV were no good we wouldn't all be torrenting them. That's true so long as you don't think there are no alternatives. Cold pizza isn't as good as some things, but it's still pizza, right?
The Moviegoer piece makes several other interesting points about things like changing the business model, adapting theater showing to capture long-tail effects, and so on - you should read it - but I wanted to pull out one that seems so screamingly obvious even I have tripped over it again and again. What if every bit of content was available for pay, for a reasonable price, nearly everywhere you were connected, 24/7? What if you didn't have to go through subscription sign-ups and long-term contracts and incompatible formats and region encodings and and and all of which put enough friction into the system that it's easier to fire up Bittorrent and type in a search term?
The technology exists to do this right here, right now, today. Apple very nearly did this with iTunes and made a kajillion dollars even though it was format-incompatible and had some DRM hindrances. MP3.com tried and got crushed under the weight of lawyers. What's lacking is the will on the part of the Cartel (afraid much, guys? do you sleep better now that Jobs is dead and you know he's not coming for your movies the way he did for your music?) and someone with the big brass balls and funding to put the tech pieces together. Will Moviegoer (or its parent company) be that someone? I dunno, but I sure hope someone will.
In the end I find myself mostly agreeing with Moviegoer's philosophy. Good movies are good and the art form has survived and thrived for decades because there is good stuff there. Sturgeon's Law applies, of course, but I do like that ten percent. And my 10% is probably not your 10% is not my parents' 10% and on and on. Lean-back entertainment may not be the most fitness-encouraging nor mind-engaging thing human beings can do, but it's fun. And that's worth keeping alive.
Seems that if we're reading the iBooks EULA correctly then if you make something with it you're agreeing to sell that created work through the iBooks store only. You can still give it away anywhere, except of course iBooks only produces content in a proprietary format readable only on Apple devices. And of course selling through Apple's store means forking over 30% to Apple for the privilege of doing so. Never mind the utter ridiculousness of this attempt to lock in book writers, says Chris Foresman at ars: it's potentially illegal as a violation of antitrust.
It was just last August when Apple was hit with one antitrust lawsuit over its ebooks business agreements. Now it looks like they're angling, or maybe just carelessly stumbling, toward another one. Or maybe not. As Foresman points out in the column there's a lot of ambiguity in the language here. Apple isn't claiming ownership or copyright of your created work; instead, it's placing a condition on your use of its software. That latter may well steer clear of antitrust concerns.
Or not. My bet is that some lawyers are going to get very rich off this; if you're an e-books author you might want to steer clear (of iBooks) at least until the dust settles somewhat.
First, she correctly emphasizes that the works in question are not your traditional public domain works. In traditional cases works come into the public domain because their copyrights legally expire. In this case the works in question were considered public domain erroneously, and only because the US did not abide by its treaty obligations, specifically the Berne Convention's Article 18. Under that Article, the US should have implemented copyright regulations that protected certain foreign works as they were protected overseas. Eventually the US did that in the so-called Uruguay Rounds Agreement Act and that Act is what was challenged in this case.
As you probably know, the case went to Holder (that is, the US Government) by a 6-2 decision. The Court saw no problem in placing works under copyright that were previously treated as public domain. Following much of the reasoning in Eldred v Ashcroft the Court majority saw no First Amendment problem, nor a copyright statute problem. This has led to some fears in the blogosphere that Congress will now feel it has a green light to claw back other public domain works. Whether this is a new green light or just an acknowledgement of what the government has been doing since 1790 depends on which side's arguments and briefs you read.
The major point of focus of Hilden's column, and one that I think has a particular chord for Copyfighters, is that in his dissent Breyer focused less on the holders of copyrights than on the original creators. Without someone doing creative work, he reasons, there is nothing to copyright and thus the prefatory language — to promote the Progress of Science and useful Arts — in the Constitution that creates copyrights in the first place deserves more respect.
Breyer (joined by Alito) would have the Court adopt a more utilitarian calculus: if a copyright restriction would promote more works then it should pass Constitutional muster. If it would instead prove more restrictive and lead to less creation then it runs counter to the very reason that copyright exists and so cannot pass Constitutional muster. This has been my belief for some time. I think the past century has seen the balance of power swing vastly in favor of copyright holders and against creators, but Breyer's argument helps me believe there is still hope for a reasoned argument to restoring a more equal balance.
Jonathan Coulton, for those who have been living under a rock, is something of a nerd-rock superstar. Formerly a programmer he has recently made his way as a full-time creative artist with his own works as well as teaming up with pop-culture icons that include Neil Gaiman and John Hodgman. Gamers probably know him best as for the wildly popular "Still Alive" track from Portal and he has been quite happy to give away his songs for free as well as via traditional recordings. And like any other artist working today he has a view on illegal copying.
Turns out this view is both complex and nuanced, as he explores in his blog post. That's good, because he started the whole thing off by Tweeting something sarcastic that apparently got taken way out of context. What Coulton ends up arguing is that there are both good and bad aspects to sharing sites like MegaUpload and to the environment in which he's creating.
He notes that people, particularly on the anti-copying side, throw around big numbers with little or no evidence to back them up - numbers based on over-simplistic math and bad premises. And he concludes by saying:
I believe in copyright. I benefit from it. I don’t want it to go away. I love that we have laws and people to enforce them. But if I had to give up one thing, if I had to choose between copyright and the wild west, semi-lawless, innovation-fest that is the internet? I’ll take the internet every time.
It's interesting to me to see him come down on this side of the debate because I found Coulton, and became a fan, due to an illegal work. Even though I'm a gamer I never played Portal, but I play World of Warcraft and apparently so do a lot of other Jonathan Coulton fans.
The points he raises are mostly ones we've discussed over the past few months - ownership questions, proprietary formatting, restrictive DRM and licensing, and so on. But I thought it was worth blogging about his first point,which is just forehead-slappingly obvious and yet somehow I missed it. E-books - at least as they are sold by major providers today - pose a major privacy risk that physical books do not.
As Stallman notes, you can walk into a store and anonymously buy a physical book, often just with cash. At most you might be required to show proof of age for some materials but no record is kept of what you show. Contrast that with e-book purchasing, which requires a logged-in identity that is linked to credit cards, bank accounts, and other hard-to-remove traces. These purchase records can then be subpoenaed or seized by authorities who might have an interest in what you've been reading - bought any books on agricultural fertilizer lately? Or maybe you live in a Middle Eastern country and your government suddenly cares that you've been buying e-books about how to build apps that connect to Twitter's API.
I have several things I've been holding off blogging. Between being away at Arisia, catching up afterward, and skipping posting yesterday in support of the anti-SOPA/PIPA protests (you did call your Congresscritters, right?). Also, we're getting spam-comment bombed lately, which is dragging on the servers. The auto-filters catch a lot of them, but not all. Apologies in advance - I will clean things up ASAP.
He is, naturally, happy to crow about how much he's making on books that major publishers rejected but the deeper points here are what I want to dig into. For one thing, Konrath is actively managing his sales, with data gathering and experimentation around good pricepoints. For himself the sweet spot seems to be about USD 4 or UKP 1.5. This is interesting as other authors have found different pricepoints to work better and worse. What we don't know is what are the factors that make those pricepoints the winners for one author and the losers for another author.
Second, Konrath is clearly pleased at being pulled along in Amazon's wake. All the marketing and expansion of Kindle sales into new countries is expansion of his potential market. For English-language (or at least English language-reading) countries this is a zero-cost expansion, which is important in an environment that features shrinking markets and shrinking opportunities for physical books.
And that leads to the last interesting point, which comes up a bit in the comment thread below the blog post: what happens when the e-reader market saturates? Or more likely, what happens when the Kindle market saturates to be replaced by Kindle Fires or Kindle Novas or whatever comes next? Will Konrath's books still be available on those new platforms? At what cost to whom? How many highly successful e-book authors can the market support? And so on and so on.
More and more the e-book business is starting to remind me of the stories I've read of gold-rush California. A few people got very rich, a lot of people made some money, and a whole lot of people went broke or got hurt along the way. If someone has a formula yet for telling the likely winners from the likely losers I have yet to see it. 2011 saw the outlines of such a guide, compose largely of personal experiences; I expect by the end of 2012 we'll have some really good and decently tested principles. Until then...
The schedule is now up and the winners are:
* SF/F, Prior Art, and Patents, Fri 5:30 PM (I'll be playing the role of the creative type in a sea of legal opinions.)
* Copyright, Satire, and the Public Domain, Sun 1:00 PM (this one will also feature Richard Stallman. Me, Stallman, and three IP lawyers. Should be a hoot.)
Roger Ebert has a column up this week with his top 6 reasons why movie theater attendance is plummeting. Hint: piracy isn't on the list, though the ease of getting movies in the home via services like Netflix is.
No, once again it's the same deadly duo: high prices and bad customer experience. Prices on both tickets and concessions are sky-high and people seem not willing to pay for it, given that they're likely to have to sit in a crappy theater with an aisle down the middle, deal with obnoxious teenagers and compulsive texters, and have their in-theater options restricted because indie and non-US films aren't getting wide distribution.
In my comments on Dan Gillmor's "Swindle" rant I remarked that I thought e-book buyers were not particularly price-sensitive because they're locked in. For movies that's less and less true and so we're seeing price sensitivity. I wonder, also, how much of this is due to the crappy economy. If people are making good wages and not afraid of losing their job or their house they may not care so much if they pay an extra $3-5 per e-book or per movie. But that's not where we are and I wonder if people who are unhappy with the pricing are expressing part of the larger economic malaise.
(h/t Boingboing where I first saw a pointer to Ebert's column.)
The immediate focus of his ire is a blogger posting under the name of Janet on dearauthor.com, and in particular her entry called "The Entitled Reader". Janet, in her turn, seems to be peeved at being called 'entitled' and to feel that readers - particularly readers in the SF/F genre - have relationships with the authors through which they express their feelings about the authors' works including the prices of such works. Scalzi, in his turn, assembles both his own personal experience and extensive remarks from Patrick Nielsen Hayden of Tor publishing to defend the proposition that publishers have relationships with readers and do think of readers as their customers and not just retailers.
Having read all of this, and having some experience myself dealing with publishers and authors (and a lot of experience dealing with fans) I think both parties are right to some degree but are talking past each other because they're focused on the issue of the relationship and not on what it means.
To wit: Scalzi and Hayden are correct that SF/F publishers have made serious efforts in the past couple of decades to have their editors connect directly with readers. Janet is correct that - even though many major SF imprints exist within the Big 6 publishers - the actions of the people who work within the SF divisions are often different from and sometimes in direct contradiction to public statements by C-level executives at those publishers.
But the missed point in here? E-book prices are a swindle, and readers are noticing it. Readers who care will complain and they will complain to the most obvious and public faces they can find. As Janet correctly points out, some publishers make it very hard to provide interactive feedback. At best many of them offer just a generic contact form and do their best to give an impersonal corporate Web presence. Hayden is spot-on in saying that some editors have gone headfirst into the social media swimpool and give a very human and interactive experience - but doesn't follow the thread to realizing that the corporate experience feels impersonal and disconnected by comparison.
So while Scalzi continues to be correct that it is not the authors' fault that e-book prices jumped 30-50% overnight he is missing the point of why Janet and Gillmor and others are making these impassioned public complaints. Readers are not stupid people, and readers know when they're being ripped off. People who feel ripped off complain and if your response to complaints is "the doctor is not in" then you're missing the point. It may be misplaced, but I hear the readers' ongoing complaints to authors about prices as a plea for help.
Shocking news: someone is right on the Internet. In fact, two someones are right on the Internet here, but nobody seems to be understanding why it matters.
In today's installment of his "The Big Idea" series, John Scalzi notes that e-books give some authors an opportunity to update older works that they couldn't otherwise revise. When nobody's willing to print an updated edition (it's much cheaper just to reprint), you can still make changes you feel are important for the electronic edition.
Oh look it's been 20 whole days since I wrote something about the ungodly mess that is e-books this year. TL;DR version: nothing has changed, physical books are still better, you can go now.
The result is, as Gillmor says, "a terrible deal for the customer." Whether that terrible deal will lead more people to think twice before they buy e-books is still up in the air. Gillmor says it has changed his behavior, so maybe that's so. But I tend to think that once people have taken the plunge and bought an e-book device they want to keep feeding that habit. Ferpetessakes people pay $3 and up for a measly ringtone. I think the demand here is not particularly price-sensitive and in that respect publishers' greed isn't going to have much impact on adoption. Sales figures for December e-book/physical book purchasing should be out in the next couple of weeks and we'll see whether Gillmor or I am correct.
Nearly every science fiction writer I've hung out with or listened to has asserted that his or her business was not predicting the future. They might write about it, but the purpose of writing about the future is not, usually, to say "this is going to happen" (as if they were fortune tellers gazing into crystal balls) but rather to say "here's an interesting projection of what might happen." That's true, but it's incomplete.
Sometimes writing about the future is a way of warning people "If This Goes On..." or saying "Your way of looking at the world is not broad enough; we see things differently." Writers who want to do prediction often do so outside of their fiction. Famously, Arthur C. Clarke wrote about geostationary communications satellites, but he did so in a 1945 scientific article. I was pleased to play a small part in Bruce Sterling's Viridian Design Movement an artistic online commune dedicated to discussion of what a globally warmed world would be like. (*)
So it's fair to say that a writer doesn't write to predict. But SF writers do predict, and sometimes they predict with real clarity, bringing together threads that are loose in the wind and saying "here, this is pointing to THAT." In this category I give you Cory Doctorow's speech "The Coming War on General Purpose Computation", given at the recent Chaos Computer Congress in Berlin.
It's about the first half of the recording's hour. Go ahead and watch it. I'll wait...
Done already? If you're not convinced that he's right I probably can't add much. His recapitulation of how we got into stupid copyright wars, and how copyright wars are going to morph into a war on general computers is both scary and, I fear, scarily accurate. Like much good prediction it's not far-future and believing it doesn't require any leaps of faith. You just need to perceive what's been going on, and going wrong, in the last decade or so, and realize it's not going to get better, it's not going to end peacefully; on the contrary, it's only going to take off. A few weeks ago I suggested that 2012 would see a revolution in drug manufacture; what Doctorow is saying is that the next decade will see a revolution in every industry, from biotech to automotive to medical devices and anything else you can think of.
Doctorow ends on an optimistic note. I hope he's right.
(*) Don't believe me? Google "Wexelblat Disaster". Yes, that's me. I was moderately appalled to discover that was my Wikipedia legacy.
Last time I touched on this issue I noted that we still needed alternative strategies to manage IP around life-saving medicines. Doctors Without Borders/MSF has been working on a plan to try and break the logjam, called a "patent pool". The concept of the patent pool is simple: rather than asking any one pharma company to forego its profits while its competitors don't play along, the pool asks all companies with patents on relevant medicines to contribute their patents to licensing arrangements in the pool. The pool's managers license the patents as a portfolio, and distribute any returns to the companies that contributed.
So far so good. In this case, the MSF pool is focused on older HIV-treating medicines. Today's regimen for advanced HIV care involves a so-called "cocktail" of drugs. These drugs are often patented by separate companies so buying or licensing them is complex. Additionally, its hard to get patients to take all of a cocktail regularly and in the proper dosage. Care would be more effective if the cocktail could be administered as one pill containing all the relevant ingredients. But making such a pill requires licensing all the patented medicines. Enter the patent pool. Countries like India and Brazil have the large-scale high-quality manufacturing facilities to make single-dose medicines at the scale needed, if only they can get the license.
So MSF has been going to the patent owners asking them to contribute their patents to the pool. These are patents, generally, on older generation drugs, not the latest and greatest which remain out of price range even in a pool strategy. But even the older drugs would be life-saving for tens of thousands of people.
Which brings us to today's sad update from MSF. In this bulletin they note that despite two years of effort to get public pressure on, Johnson and Johnson have refused to allow their patents on three necessary older-generation AIDS drugs to be licensed through the pool. Merry Christmas, J&J. I hope you can sleep well, somehow, despite knowing how many people you're leaving to die.
(Usual full disclosure: I am a strong personal believer in the work MSF does and a regular, if minor, financial donor.)
On his blog "Whatever" John Scalzi declares he's tired of his readers griping about the prices of e-books. On the one hand I sympathize with him - it's not like authors have any say in what you get charged for an e-book. And he's right in that having an e-book reader doesn't make you a special snowflake. On the other hand, the fact that a large number of readers are complaining is probably an early warning sign and the response probably should be "Here's who to complain to" rather than "Shut up." I seem to recall a time not too long ago when lots of people complained about the then sky-high prices of audio CDs...
Audioporn Central, my current favorite new-music site, pointed to a new music business site just entering "artist alpha" with the goal of legitimizing sales of DJ sets, remixes, and the like called "Legitmix". The theory is interesting but I can't see it working on a practical scale. Still, let's take a look.
The idea is that the creator who uses sampled music (DJ, producer, cover artist, etc) would not sell or distribute their work directly. Instead they'd go to Legitmix and upload their work, then identify the samples used in it. Legitmix encodes the work into a distributable file that the creator can then sell or give away as desired. When the listener wants to decode the file for enjoyment they have to demonstrate ownership of the sampled sources somehow; if not, they can buy the requisite samples through Legitmix's store. Once you own the components, the theory goes, you own a free-and-clear new composite work.
In a universe where everyone cooperates, this might work for simple mash-ups. Some of these are simple A|B tracks containing only two songs. But a good mash contains a lot more and let's not even talk about the hundreds of samples in a full-length DJ set. The amount of work involved on the part of every listener to demonstrate ownership of, or acquire rights to, every sample in your average hour-long set is nearly astronomical. The end user experience of this is going to be awful.
Of course, we also live in a universe where people don't just cooperate easily - if we did, the damned Copyright wars would've been over years ago. Some people don't want their stuff sampled. Some people want to approve the samples' uses. Some stuff doesn't have an easy license-granting authority in the first place (see "orphan works"). Sometimes you can get a license for the base song, but not necessarily the specific performance that was sampled. Et cetera et cetera. The number and amount of legal and contractual complications entailed is enough to stun even a Cartel lawyers, never mind some random start-up company.
What Legitmix is doing is employing fancy technology to shift the burden of licensing work from the creator to the listener. That means you multiply the amount of work by N where N is your number of listeners. Eww. Now there is some attraction to that, in that you might want to price your sampling fees based in part on the listenership. If someone samples you and nobody listens to that sample you might care less than if 100,000 people listen to it. But really, that's a detail. The complexity explosion remains mind-boggling.
I'm reminded of the situations that led to patent portfolio licensing. If you stop and think about it, companies with lots of patents could probably make more money by licensing individual patents to individual partners. Partners would pay only for the patents they needed, and everyone would be happy, right? Except it's so insanely complicated to keep track of all that it turns out to be simpler just to cross-license the entire patent portfolio. Sure, you pay for stuff you don't need but the amount of time and hassle (and lawyer fees) you save with a blanket license more than makes up for it.
Now substitute "sample" for "patent" in the above paragraph and you'll see why I think Legitmix is a non-starter. I give them an "A for effort" and good on them for trying to think creatively about solving the sample-licensing problem but this one fails the basic smell test.
BT alleges that Google's services - everything from Maps to Google+ - violate half a dozen patents that BT owns. FOSS includes a scribd link to the complaint and pointers to the six patents in the USPTO system. The patents themselves are old, and dense, and very broadly written. My extremely un-lawyerly opinion is that Google is indeed violating the patents as written, which means that either they pay up or they get the patents narrowed/invalidated. Given my fundamental believe that most software patents are overbroad crap issued without even a semblance of respect for prior art the choice for Google boils down to what would be less expensive: license or invalidation.
Neither is pleasant or cheap and the situation is muddled by the fact that BT is (according to Mueller) the fifth big company to sue Google over IP violations. Google thus has to consider the effect that settling any one of the suits would have on the others.
Jenny Shank at Mediashift has a column that starts off with the interesting title "The Trouble With Gifting an E-Book". She's right: e-books make much worse presents than regular books, but sadly she misses many of the important reasons why. Shank's column is a lovely bit of nostalgia about the personalization of gifts and the feel of the physical book. All true and good, but really kind of missing the mark. Let me tell you why e-books are lousy gifts:
Books are one-size-fits-all. Unless your reader needs a large-print or Braille edition, a book is a book is a book. The e-book for your iPad friend is not the e-book for your Kindle friend is not the e-book for your Kindle Fire friend is not the e-book for your Nook friend even if they all have the same name. The near-complete lack of interoperability between these devices is stupid beyond belief. Of course, you can get someone a gift card but we're talking about gifting books here.
Books are actual gifts. You give a book, and the recipient owns it. He or she can share it with friends, donate it to a library (unless imbeciles get their way with destroying first-sale doctrine), pass it on to their kids, and so on. When you gift an e-book, you're just letting someone rent it and that rental can be modified or yanked back by the e-book publisher or distributor at will and often without notice.
Book gifting is simple. Find a book, buy it, wrap it, send it along or hand it over. E-book buying remains such a complex mess that there are actually whole Web sites devoted to helping people through the convoluted processes that each seller has established for getting e-book.
My family has long had a tradition of special holiday presents delivered at year's end by "The Book Fairy." I don't think the fairy's going electronic any time soon.
Once again I'll be doing a couple of intellectual property panels at the annual Arisia science fiction convention in Boston next month. At least one of them will also feature Richard Stallman. The con is January 13 - 16, 2012 at the Westin Boston Waterfront. Plus we have Phil and Kaja Foglio as Guests of Honor this year, so that should be pretty awesome right there.
I still don't have a final schedule for when the Copyfight-relevant panels are taking place. I'll post that once it comes out.
It's been too long since I propped the work that Cory Doctorow has been doing at tracking some of the most egregious excesses of the Copyright Wars.
First up, you might want to check into the philosophical backgrounds for which I recommend his series of columns for Locus Online's "Perspectives" series. Locus is the go-to 'zine for SF/F writers and serious literary fans. Cory's been writing good thoughtful philosophy pieces there this year, of which I have two clear favorites: "Why Should Anyone Care?" questioning why anyone (who reads or writes SF/F particularly) care about copyright anymore; and "It's Time To Stop Talking About Copyright". Here he is talking about not just the utter failure of copyright law over the past decade and a half but the really crucial issue of how what starts as copyright policy inevitably becomes Internet policy and that just makes everything worse.
With that as background you should check out a recent series of Cory posts over at Boingboing where he's been dogging what I think is probably the most frustrating and sorely under-reported story of the 2011 Copyright Wars: the ways in which the Cartel have continued to abuse the system, particularly the DMCA's takedown provisions. I wrote some months ago about the crucial importance of the DMCA's Safe Harbor provisions but the Cartel is exploiting its way around those provisions by abusing the poorly implemented notice-and-takedown procedures of sites like YouTube.
Oh, and there's a good chance the US Government (Senate) may get its fingers into this pie: according to Boingboing and Ars Technica, Senator Ron Wyden has promised to get up the nose of the Immigration and Customs Enforcement division of the DHS over domains that were seized based on (shaky) claims of copyright infringement.
Remember back in August I noted a class-action suit around alleged e-book pricing collusion? Well now the feds are involved. Yesterday the L.A. Times reported that the US DOJ is investigating "potentially unfair pricing practices" by the big five book publishers. DOJ joins Europe's cops and some states' attorneys general who've all said they are investigating.
Investigation is a long way from indictment, however, and I suspect we won't see indictments come out of this. If the big publishers feel the heat they'll probably enter into some kind of negotiated settlement promising to play fair. And the prices of e-books will remain sky high.
I mean, seriously, we're in roughly the 12th or so year of the Copyright Wars and this is not even vaguely news. I should go back in the Copyfight archives and dig up my old postings like the first time the RIAA used the cops (L.A. at that time) or the first time I noted that the Cartel had taken over DOJ more or less wholesale. But I can't be arsed to do it - the song remains the same year in and year out and I'm tired of it.
Still, props to Techdirt for its extensive and meticulous documentation of this latest manifestation of the disaster.
Vaughan-Nicols is pretty damned clear: Apple is engaged in a world-wide war on Samsung and Android in an attempt to drive them out of, and monopolize, the tablet space. There are at least nineteen related lawsuits happening in nine different countries as Apple tries to use its patent portfolio to bludgeon competition out of the marketplace. No wonder I was confused.
Vaughan-Nicols notes that this massive campaign is starting to draw regulatory notice, which is not bad but kind of a case of the horse already having left the barn. If the problem is the overuse of overbroad patents to monopolize a marketplace then the answer isn't to retroactively fight those patents; the answer is to tighten up the patent-issuing system so that crappy overbroad patents stop getting issued in the first place.
I promise I'll talk about drugs in a minute, but first I want to meta-introspect...
There are a lot of tabs I open in my Copyfight window. Most of them don't make it to posts because they're not well-enough developed for me to say something about, or because someone else is saying all I want to say about something. For example FOSSPatents has been dogging the Apple-Motorola patent suits story extensively. I confess I don't understand what Apple is up to here and nobody else seems to have anything clear to say about it.
Then there are stories that never quite materialize, despite my hopes that they will. Earlier this year, news went out that some of the most popular (blockbuster big-selling) drugs were going to go off-patent this year. For much of the past two decades the drug industry has made huge profits off these blockbuster drugs - hundreds of billions - and patents have played a key role in protecting those profits. Patents prevent other companies from copying the drug and selling it cheaper or making a generic version. Drug companies have developed an elaborate rolling shell game of patenting in which they continue to protect their drugs by developing variants, improvements or new delivery mechanisms for the drug that can then be patented. A drug originally marketed (and patent-protected) as an injectable may then be re-patented and further protected in pill form or inhaler form.
The problem with this is that sometimes these medicines are essential, life-saving treatments and intellectual property ends up killing people. This is usually justified by the huge expenditures necessary to create and test a drug as well as shepherding it through the FDA approval process. The figures I've seen for that range from USD 800 million up to 2 billion dollars. Of course, I've also seen figures claiming that drug company spending on advertising and promotion dwarfs their spending on R&D, by up to 6:1. So I'm not wholly sympathetic to big drug companies crying poverty.
At around the same time the stories about drug patents ending hit there was an interesting item on my local PBS station, WBUR, about one-person drug companies. The idea here was that these companies - often a sole proprietorship of someone who had spent decades working at a larger pharma company - could provide a much cheaper way to get new drugs into the pipeline. You still need a big organization to run the large trial studies that the FDA requires, but the process of drug design, modeling, and small-scale testing can be done by renting lab space and equipment at about 1/10th the cost of a big company doing it.
Sadly, despite the promise of new ideas and cheaper ways to get things done, nothing much has materialized on this front. So the story sat in my unfinished file for months and probably would have been dumped if not for two related items that came through my news stream recently. The first is a nice little five-minute piece from PBS News Hour on the ways in which companies have dragged out the last bits of life from their patent-protected drugs and also the multi-billion dollar question: is the era of blockbusters over?
If it's true that drug companies can no longer depend on huge-selling drugs to prop up their profits then they may have no choice but to diversify and to farm out production steps to cheaper alternatives. 2011 didn't see any big changes, but I'm now wondering if 2012 may be the first year of an upheaval in the drug business such as we've seen this year in the publishing business.
At its heart a patent is a government-granted monopoly. It's a quid pro quo that's so fundamental it's even in the Constitution - you do these useful things and in return you get all these legal protections. But there's nothing to say we couldn't also have another quid pro quo, and that's what Sanders is proposing. Drug companies would forego their monopoly protection (which comes with no guarantee of income) in return for guaranteed income with no monopoly. Specifically, Sanders is proposing the government fund a $3 billion/year pool of prize money that would be outright awarded to innovators. Interestingly for us open-access types, Sanders is also proposing that at least 5% of that money be set aside for "any individual, business or nonprofit organization that openly shared information, data, materials or technology that contributed in a positive way to the development of new drugs."
In the current economic climate and political deathlock I doubt Sanders' proposal will go anywhere, but I am pleased to see at least some people thinking creatively about new ways to handle intellectual property in tricky circumstances.
And to my few readers who made it this far, thank you for suffering through with me. I'll try to make my posts more coherent as a general rule.
More than ever, publishing is not a fire-and-forget activity. This blog entry from Neil Gaiman contains a cautionary tale of an author and a bad e-book experience. He even manages to avoid pimping his own audiobook line too much.
The canonical discussion of access-control mechanisms such as paywalls and DRM is that people ought to pay for stuff. That's not a wholly ridiculous idea; I've repeatedly asserted that creative people ought to get paid for what they do.
The problem? How do you know who has and who has not paid, particularly when you present your content in multiple ways on multiple platforms? This was brought to my attention by a column written by usability expert Jakob Neilsen.
Neilsen critiques the Wall Street Journal's iPhone app for its confusing user interface. In particular, the app appears to be asking people to pay twice for WSJ content. This causes the app to get horrible reviews. Neilsen points out that a fairly simple redesign could fix this particular app's problems, but I see this as symptomatic of a bigger issue.
By paywalling its content, the WSJ has taken on the burden of keeping track of who has and who has not paid. And, sensibly enough, the human being who pays for the content feels like she ought to be able to access the content she paid for, whether it's on her desktop or her mobile device. In fact, what is happening is that the WSJ, through poorly thought-out design, is transferring this burden to the end users who are then pissed off by being asked to pay twice for the same content.
Entities (people, corporations) who lock up their content behind automated mechanisms need to start paying attention to this, or they're going to be dealing with a lot more pissed-off customers. Paywalls already cut your subscriber base significantly (90% or more from figures I've seen). How much does it cost you to alienate that last 10%?
You can follow the Boingboing post and its link to the ALA site for the latest sand-throwing childishness. I thought it was ironic to read this Boingboing post right after I read a comment here from reader Dan T on yesterday's item, where he points out that putting bits on one's own disk can have significant advantages over cloud-based music systems. Sadly, even if you do buy electronic products in download form, if those bits on your disk are wrapped in someone else's DRM you're still at their mercy.
I've been somewhat deliberately avoiding writing about online music of late because it's all still depressing me. Still, I wanted to note in passing two stories that aren't yet formally connected but soon may be.
Kantor's guide focuses on issues such as format, chiding Apple for still selling AAC, and on what mobile device you use, with distinctions for nerds and non-nerds. Still, the core message is: buy something to stream, not to drop on your hard disk.
Not that you're necessarily going to get everything you want from these services, though, particularly if you want things that aren't released on major labels. In fact, if you use Spotify, you just lost access to over 200 indie and minor record labels' catalogs. The problem, as Matt Lynley lays out in that column, is that the cloud services are paying... um, in my tribe we call it "bupkis".
In addition, the streaming services like Spotify are seen as cutting into the outright purchases you are being advised to make on the other cloud services. Spotify, in its response statement, claims (sole) responsibility for getting people to stop illegal downloading. Epic achievement there, guys. Can you convince the Cartel to stop suing people for downloading now that, you know, you've stopped all illegal downloading?
Smith notes that open access has more than proved its worth, both anecdotally and in repeated tests. The value of publication is not just in reaching those for whom the publication was intended; the value is in being read by a wider and wider audience, many of whom are unexpected readers who can make unexpected connections and derive surprising results and new value from openness.
A bit ago I poked at the issues surrounding the copyrightability of tattoos. One possibility is that a tattoo is a purely expressive design element, which might appropriately be covered by something like a design patent or a copyright; though, as I blogged last time, there are a raft of unanswered questions as to how that IP protection would be read. In addition to artistic design, tattoos can do much more : they can contain messages as words, and they can convey messages by their choices of symbols, images, or even colors. The question then naturally follows: is a tattoo a form of speech?
According to the decision in Coleman v City of Mesa, yes. However, as Eugene Volokh notes, this decision follows Ninth Circuit precedent, which SCOTUS loves to overturn, and disagrees with decisions in other states/circuits. Should someone decide the case is important enough I could see one of these arguments going all the way to the Supreme Court.
Time again for me to tie together two things that start out looking different but that I see through the same lenses.
First, an article published last month on Boingboing by new novelist Bill Barol. In his piece, Barol describes how he came to give away his first novel, Thanks for Killing Me. He discovered that regular publishers didn't want it, and self-publishing isn't all it's cracked up to be. For example, CreateSpace sets a minimum price - he could self-publish there for about USD 8 and take home 30 cents per copy sold.
The discrepancy is interesting. You can go to Amazon and think you're paying eight dollars for a book that its author feels he is essentially giving away, not to mention all of the work he has to do in promotion and marketing, since he has no major publishing house to handle that. Barol talks of the book as a "loss leader" - shades of Megan Lisa Jones - but unlike Ms Jones he doesn't seem to have a plan for follow-on work. His goal is just to get noticed. It is, as he admits, a pretty crazy plan but in an era when traditional business models are collapsing, one worth trying.
(Edit: Barol noted in a comment response that he does have a follow-on plan, which I failed to parse correctly from the Boingboing piece. Mea culpa.)
The second story appeared on NPR this morning, and describes a program at Arena Stage to foster new playwrights. The Copyfight-interesting thing about this program is that it's using a grant for new plays in a wholly different way. Instead of making one-off work-for-hire items that would then be owned by Arena Stage, the facility is instead using the grant money to pay playwrights like employees. They get a salary of about USD 40,000/year, housing assistance, benefits (including all-important medical insurance), and some money to do research for their new works.
In return the playwrights produce plays that are performed at Arena Stage, but can also be produced at any other theater around the country. The story doesn't describe the precise rights arrangement, but the director of the program, called American Voices New Play Institute, is quite clear about it being a different ownership model:
Normally, you commission a writer, you own that writer's play to a certain degree. And we're trying really a very different model.
In a way, this is still a patronage model, since the program uses money from a large grant. And I still think that patronage is not a scalable model. But it's interesting to me to see this mash-up of patronage and employee models, with a more liberal set of ownership and use permissions on top. The long-term goal of the project is to nurture new playwrights, a creative type we haven't talked much about on this blog. I will try to keep track and see how their model-bending works out.
Neil Gaiman blogged last night about the first few titles of his "Neil Gaiman Presents" audiobook line being available. I wrote about this effort this effort back in September when it was first announced. One new-to-me tidbit from the latest post is that Gaiman is not just selecting the titles but is also picking people he thinks will make good readers. An interesting twist, and a natural for audio books.
In this piece he draws a line between the DMCA and the Arab Spring, as we in the west have come to call the popular uprisings in Tunisia, Egypt and elsewhere that have toppled dictators and probably changed the face of politics in the region for generations to come. The argument is pretty simple: without the Safe Harbor provisions of the Act, open public social services such as Twitter and YouTube would not have flourished. You can even argue that more closed systems such as Facebook that still depend on user contributions for the majority of their content would not have succeeded. And without these services, Post contends, the protests would never have coalesced.
It's fun to argue counterfactuals over beer and pretzels with your friends and you can probably argue that these revolutions would have happened sooner or later even without the networking effects of social media sites. However, this misses the larger point that I think Post wants to make, which is that the narrow concerns of the Cartel in seeking to overturn Safe Harbor need to be weighed against the enormous social goods and still unknown potentials that the provisions have allowed to develop.
Apparently the retailers decided that if they couldn't sell the digital version then they weren't going to sell the paper versions either, so nyah-nyah phblblblbttt. Meanwhile, over in that corner DC is saying you can't have your comics on the iPad or even the old Kindles either so nyah-nyah... well, you get the idea.
Seriously, this resembles not an intelligent foray into 21st-century business model development around digital media but rather a sand-throwing, hair-pulling, name-calling playground tussle among five-year-olds. It's multiple sides cutting off their noses to spite their faces, and along the way hose their fans, customers, and readers. And if you thought music fans were fanatically dedicated, you have not met comic fans. The best possible outcome of this that I can see is more of those fans going back to their local comic shops for the physical versions of the books and series they love.
What's surprising to me is that it doesn't take more than about 30 seconds of thought to realize that we've been here before, and we're in this situation now. Movies, for example, come out now on both standard DVD and Blu-Ray. Eventually, Blu-Ray players will dominate the market to the point where DVD versions of movies are no longer made. In computer gaming you used to get new games out on CD and DVD; now the vast majority of gaming PCs have a DVD reader or a net connection so nobody makes games on CDs anymore. See also books on tape, audio LPs, and on and on. It's possible that in the next few years or so one e-book capable device or one e-book format will come to be sufficiently common that producing only that one is an appropriate business model. But not now.
If companies weren't busy being blinded by the "ooh new shiny" of the sudden surge in e-book numbers they might take a moment to learn from history. Resquiat in pacem, Santayana.
What seems to have happened is that the ham-fisted attempts by the adult film industry to mass-sue their customers for downloading porn torrents has revealed some interesting things about who does and who does not get sued. The process is a familiar one - the entity owning the rights to the material sues a bunch of IP addresses that have been spotted downloading it. Various legal machinations are then engaged to associate IP addresses with names, and the names thus associated become the new targets.
Except when they don't. If an IP address seems to be associated with "public figures" or servicepeople overseas those names are quietly dropped. Sometimes IP addresses come back associated with cops or dead people and they don't show up, either.
Of course, nothing in the law requires that a copyright holder sue everyone equally. The exclusion of certain groups from these mass lawsuits is a separate matter from the inherent silliness of the whole process. But it sure would be interesting to know which politicians and other public figures are being given a free pass on their porn torrents...
Thanks to Cory/Boingboing for pointing me to a nice write-up that the EFF has posted on the effects of Facebook's patent-pending user tracking system. The write-up is concise but contains a bit more scary stuff, not least of which is that Facebook has filed paperwork to form its own PAC.
Guy Kawasaki (yes, that one) posted that the rights to his book The Macintosh Way have reverted to him and as part of his effort to remember Steve Jobs he is making a PDF of the book available for free.
As before, she's building on her own personal model - she's a fan of the game and the stories of the world in which the Dragon Age games are set. The new series was done with EA's backing and the short teaser that's up so far looks like it has good production values.
I've not yet seen any discussion of how the business arrangements for this are laid out. Obviously Bioware's logo and properties are featured heavily, and I imagine Day and the other actors probably got paid at least union rates. But it would be interesting to know whether the series is intended to make money, what effect it has on sales of Dragon Age games and DLCs, and whether profit-sharing is part of the plan.
The blog entry on m-phi is initially concerned with discussing how a possibly revolutionary proof in fundamental mathematical theory was published, subject to scrutiny, and rapid consensus formed that an error had been made. The consensus and supporting arguments were sufficient to convince the original author of the theory to retract his assertion. This is no small thing, particularly since he had a book in the works to explain his discovery. The blog then goes on to reference Jody Azzouni's book chapter "How and Why Mathematics is Unique as a Social Practice".
As related in m-phi, the book's central contention is that mathematics as a discipline - and therefore the mathematicians who practice it - are "very peculiar" in that they tend toward consensus not as a result of social pressures or academic rigidity, but rather as a result of how mathematics works as a discipline. Some have even argued that this is evidence for the notion of Platonism in mathematics.
From a Copyfight perspective, this poses a strong challenge: how do we generalize this kind of behavior? I think it's reasonable to expect that people who read and contribute to this blog believe in the open sharing of ideas and information. We believe that such openness accelerates progress, solves problems more rapidly, and leads to the development of generally better solutions than structures where solutions are developed in isolation. So where else can we look for examples to support this hypothesis?
I've not yet read the patent app (it's long). It's a priority claim incorporating a provisional application filed in February of last year. The new application cites no prior art at all, which strikes me as slightly odd; perhaps that's in the provisional app.
The gist of the application appears to cover the techniques that are behind the Facebook "widgets" - content on Web pages that can access your Facebook-created cookies even after you've logged out of Facebook itself. Thus your movements across the Web are reported back to Facebook and you get ad-served (also described in the patent application) based on the knowledge of who you are that Facebook has accumulated.
Also of interest (and noted in other blogs) is that the patent never says (nor is it assigned to) Facebook. Usually a patent application is filed with the inventors names on it, and then some form of assignment statement. Particularly in the high-tech industry it's standard practice for employees to sign agreements at the start of their employment that any intellectual property they come up with during business hours or that relates to the business of their employer is to be assigned to their employer. No idea why such a statement would be absent from this application.
It's probably worth noting for the record that Facebook has made claims to the effect that it does not track logged-out users, claims that are widely seen as... what's the word I want here... bullshit. See for example, Dave Winer's column titled "Facebook is Scaring Me".
Over at The Big Questions blog, my friend Steve Landsburg (who is himself no slouch at economic math) gives a shout-out to MathOverflow on the occasion of its second year. MathOverflow, and its companion site MathStackExchange, are breaking new ground in public collaboration and shared teaching/learning of mathematics from college level up to the newest theoretical advances. As Landsburg points out, these sites enable problems that might have taken months of work by an isolated individual to be solved in hours. They make this work by a careful combination of openness (anyone can join in) and restriction (MathOverflow really is for experts and active researchers), a model that I think can be replicated in many other fields.
CBLDF (the Comic Book Legal Defense Fund) sent out an announcement saying that they have taken over the intellectual property - including design, merchandising, and promotion - rights around the Comics Code Authority Seal of Approval. This is mostly a free-speech and intellectual freedom story, as the rights were assigned from a defunct entity with little controversy. Still, it's important to remember that intellectual property can be wholly hijacked by the same governments that provide protections like patents and copyrights. If you're not familiar with the CCA Seal story, CBLDF have a very nice summary up on their site.
Mark Glaser, whom I just started following on Google+, linked to a couple of Mediashift stories of interest to Copyfighters, I think.
In the first story Audrey Watters takes up a particular instance of the problem with lending libraries and e-books: school libraries. These libraries, like others, are facing incredibly tight and shrinking budgets these days and may not be able to afford a major transition from traditional physical books to e-readers/e-books and the potential additional financial implications of setting up a lending program for electronic books. It won't surprise anyone here to read that DRM is a (maybe the) big hurdle to getting these programs going. Libraries can't afford to buy an excessive number of devices, so DRM that locks books to specific devices or even brands of device is a non-starter.
In the second story, Carla King takes on the issue of self-publishing and getting your book into physical distribution outlets. The entry is actually part of a series on self-publishing - the second so far. In this piece King shares her advice on how to handle print-on-demand situations as well as finding a distributor or other partner who can do the legwork necessary. Again, no surprise to see that Createspace is still a dominant entity in this growing business and that, still, self-publishing is hard work. That said, King's message is overall positive - you can do this, if you are willing to put in the work.
Fred von Lohmann pointed to this announcement of the new, improved SCOTUSblog. The blog has always been a go-to site for professionals and amateurs like myself who are trying to puzzle out what the various Supreme Court pronouncements and goings-on actually mean.
The blog now is big enough to support four full-time employees, with the backing of Bloomberg Law. Bloomberg remains a paid commercial service, but here they are doing a really awesome thing in sponsoring a fully free open and accessible source of high-quality analysis and content. In addition, SCOTUSblog is promising to offer more non-text content such as audio and video. My guess is that without someone to foot the bill they couldn't afford the extra bandwidth costs that these kind of content incur.
As sole sponsor Bloomberg Law gets props both in the site banner and in advertising space in the right-hand column. It will be interesting to see how they use these spaces and what influences and effects they have on the site in the future. As always I remain interested in sponsorship (patronage) business models and how they play out for creative folk everywhere.
In that month they estimate that ebook sales are within a few percentage points of hardcover sales, in dollars: $84.9 million for hardcovers and $80.2 million for ebooks. Trade and mass-market paperbacks together are still on top at $95.8 million combined, split about evenly. That means taken separately each of these categories is now below $45 million. Trade paperback sales were reported to be down 64%.
Analyses for why the sharp reversal has taken place are spotty. As we noted earlier, prices for ebooks have been forced sharply upward because of the switch to the agency model, but unit sales have continued to climb. There are also a couple of one-time events pushing on the trend: Borders closed, cutting into physical sales, and Harry Potter e-books are due to be released later this year, which everyone expects will cause a huge spike upward in those numbers.
On a related note, Paul Reynolds blogging for Consumer Reports sounded a typically negative note about the prospects for e-book subscriptions and open-ended rentals such as you can buy in the video realm. I agree with Reynolds: publishers will have to be dragged kicking and screaming, if at all, into this business. Prior to that we'll see significant DRM-cracking and file sharing of ebooks, pretty much exactly recapitulating the story of digital music from 15 years ago because I'll bet you the book publishers have learned nothing from the Cartel's experiences and they are all very very afraid.
(hat/tip to Doug Pardee and Karl A. Hakkarainen for the pointers.)
When you have little money, you buy second-hand books. Seen a second-hand ebook lately?
Of course, you haven't. There are a few minuscule programs to allow some libraries to lend a few ebooks, but the secondary market for ebooks doesn't exist and likely never will.
It's an interesting, and somewhat frightening, question: if we really do away with physical books, what will poor people read? Should lack of money mean you lose access to the entertainment, value, education, and ideas contained in books?
Hot on the heels of Megan Lisa Jones' successful experiment (see her comment to the entry) a friend who loves Lovecraft sent me another pointer to an interesting dual-publish experiment in that field.
In exchange, he's asking people who take advantage of the free offer to provide some form of publicity - a tweet, a blog notice (*), a Facebook mention, etc. The natural assumption here is that if you're savvy enough to find, download, and read a PDF version of a book then you're likely connected to one or more social media and may well share interests there with other Lovecraft fans who will find this work of interest. It's kind of an interesting mix of grassroots, viral, and targeted marketing and I think it's rather clever.
(*) I should note for the record that I haven't gotten the PDF and likely won't; my interest in Lovecraft isn't enough to motivate me to read a scholarly work.
That's the question being asked by new author Megan Lisa Jones. As we've discussed many times, one of the biggest problems facing new authors is getting noticed. Despite the decline of the book publishing industry thousands of new novels are published each year by established authors. First novels may receive some extra promotion and attention if the publishing house can spare it, or thinks they have a potential mega-hit on their hands, but the vast majority of first novels go by with little or no notice, piled in a virtual corner few people will take the time to browse.
Over in that other corner reside providers like Clearbits (nee LegalTorrents). These outfits are the digital equivalents of vanity presses - you pay them to publish your content not on dead trees but onto the torrent streams. So if you pluck something that might go unnoticed from the traditional publisher corner, and move it over to the self-publishing digital corner, wrap it in a Creative Commons license, and set it free in the ether, what might happen? In the case of Ms. Jones' book, it looks like something over half a million downloads.
Half a million potential readers worldwide is certainly a lot more notice than you'd get from pretty much any traditional publishing arrangement. For a new author trying to build name recognition and planning to turn a first novel into a trilogy and possibly other publications, that's good. For people like me who want to see new business models put to the test, this is very interesting.
Sadly, what's missing from the WSJ blog entry is any of the financials. What did it cost Ms. Jones to do her deal with ClearBits? How does that compare to the costs of a traditional vanity press? Has any income been received directly, or is it all in the form of indirect benefits - certainly you don't find any other new authors in the Wall Street Journal's "Small Business, Big Innovation" competition so you can point out a significant measure of success there. But I think it's too simplistic to say "a book is a business;" I still want to follow the money.
(hat-tip to Copyfight reader Jayel Aheram for the pointer.)
Long-time readers may remember a few years back (2005) there was a minor kerfuffle when Neil Gaiman had some difficulty getting permission from his publisher to post a free listening sample of one of his audiobooks. Since then Gaiman has continued to do audiobooks of his own works and occasionally serves as reader for others. However, not much has been made of those online, and the world of audiobooks has slowly grown in stature and notice. In 2009, Gaiman posted what he labeled the "end of the audiobook argument" with several links and samples of his own audiobooks.
Now, Gaiman has started his own audiobook label using the tools of ACX, the Audiobook Creation eXchange. As with other book labels this one exists not just to promote one man's work - though his name will definitely raise notice - but to find and promote audiobooks of quality by new and existing authors. ACX is a self-described "marketplace" that focuses on the aspects of (audio)book publication and promotion that are usually handled by traditional labels - publication, distribution, marketing, promotion, rights management and so on.
ACX also has a wealth of self-help and learning materials for people who are trying to navigate the business side of things; for example, they have a simple walk-through on various business terms you can establish through them, grants of rights, and so on. They have boilerplate business documents, and FAQs to try and make things simple.
Right now ACX appears largely to be a front end for Audible.com but there's no reason they couldn't serve the same function with different partners, which leads to the question - is this a better way for people wanting to get their audiobooks published to go? Traditional publishing houses seem to be spending a lot of energy suing to keep people from donating books to libraries and not a lot of energy on finding and promoting new audiobooks and new audiobook authors. So there's clearly something of a business vacuum to be filled; here's hoping it can be filled profitably.
Book publishers have convinced the US Second Court of Appeals to issue a ruling that is grotesquely hostile to first sale doctrine and seriously makes one question what the hell they think they're going to accomplish. The case at hand is John Wiley & Sons Inc. v. Supap Kirtsaeng.
If you understand all this stuff feel free to pause here and read that. For those who don't, let's start with the basics: "First Sale Doctrine" is an exemption first recognized about 100 years ago in the US to the limited monopolies of copyright law. The doctrine says that if you have a copy of a work that you got legally, then you have the right to resell it after you're done with it. This is particularly relevant for things like books, movie DVDs, game cartridges and so on, all of which have large and reasonably healthy secondary markets both physical and online. In the EU and many other parts of the world this right does not exist; the idea that "I can do what I want with my stuff so long as it's legal" seems to be uniquely American.
First sale doctrine has been under attack for some time in the US. Last year a divided (4-4) US Supreme Court affirmed a Ninth Circuit decision, in a case called Costco v. Omega, that first-sale applied only to things made and distributed in the US. Since the Court was equally divided - Justice Kagan recused herself - the 9th ruling stood but no national precedent was set. Now the Second Circuit has upheld this principle.
The problem? Well, let's see. For starters, do you know if your book was printed in the US or Canada? If it was printed in Canada, be sure not to list it on eBay or Half.com and make sure it doesn't show up at your yard sale or get donated anywhere. Did you order from Amazon UK? If so, you are now not allowed to resell that book. Are you a library that stocks UK authors? So sorry, you can no longer lend those books out unless you went to the trouble and expense of getting the publisher's permission for each and every item.
For your non-US books, do you know whether the listed publisher still has the rights in that book? Did the author's contract expire or get terminated? Did they move to another publisher, and if so did that publisher pick up rights to the author's back catalog when they started publishing her newest works?
You can see where this is headed. Neveryoumind about orphan works - just be sure you're not the kind of dastardly person who GIVES books away to libraries like those whose collections have been damaged by the recent flooding in NY, CT or VT - all states covered by the Second Circuit. Because if you do that now, you're breaking the law; I imagine that libraries that ask for donations are probably guilty of contributory infringement, too.
And if you're a company that does printing work for books or comics or magazines, or your company manufactures those DVDs or cartridges for games in the US, I'd start looking for a new line of work pronto. Because, really, there's not a single reason that any publisher would want to have their materials made in the US anymore when just having them shipped in from overseas allows them to escape that pesky first-sale stuff. Which brings me back around to my original question - what, exactly, do John Wiley think they're going to accomplish here? Do they think they're going to exterminate used book stores? Kill the comic resale market? And to whose benefit?
Can you imagine a time when stores display books with little tags like you see in art museums. "On loan from the permanent collection of Alan Wexelblat"? At least as an individual purchaser I think I'm still allowed to lend friends my books. I think. For now.
(h/t to Doug Pardee for the pointers, and to Dano for the Subject line of this post)
In pre-trial documents SAP admitted that a company called TomorrowNow - an SAP subsidiary - had downloaded or made "hundreds of thousands of infringing copies of Oracle's software and support materials." Given that admission, the purpose of the suit and trial was solely to determine the extent of damages and what SAP would therefore owe Oracle.
According to Ginny LaRoe's story, Judge Hamilton's decision was to limit Oracle to actual damages, denying it more money for "hypothetical license damages". Does any of this sound familiar to you, too? This isn't a free ride for SAP by any means - it's still on the hook for $272 million in actual damages. Oracle may also appeal the judge's ruling, and attempt to get some or all of the full jury award.
In this case Samsung has introduced into evidence images from Stanley Kubrick's classic movie 2001: A Space Odyssey. In that movie, characters are seen using a tablet-like device as shown in the image I've copied at the bottom of this blog entry (image enlarged somewhat so you can see details).
According to Samsung, this constitutes prior art because it shows key elements of the design that Apple wishes to protect with its patent, in specific: "...an overall rectangular shape with a dominant display screen, narrow borders, a predominately flat front surface, a flat back surface (which is evident because the tablets are lying flat on the table's surface), and a thin form factor."
I confess I'm not familiar with how prior art works in design patents - are the rules different from prior art challenges to functional/process patents? Is a use in a purely fictional context sufficient to show that the design elements are not original and thus presumably not qualified for new patent protect? Will the court even accept Samsung's submission for consideration as an element of prior art? We'll certainly find out the latter soon and the others in due time.
In particular, looking at these two men it's clear both that they were greatly influential and that they were deeply embedded in rich systems of shared creation. Their life stories give lie to the myth that people create in a kind of mystic isolation where there is An Idea, pure and platonically ideal, which leads to the error of trying to (over)protect those creations. Like many great creative teams who came before, the fine works that bear these mens' names are made possible because their ideas are not hoarded, but are shared and worked and reworked, being refined and made better in the process.
Nate Anderson's piece for Ars on Brownmark Films v Comedy Partners et al is too funny for me to do justice to. You should go read the original. The gist, for you folk who want to know what you're getting into first, is that a decision last month in Wisconsin in the suit over South Park's parody of the viral YouTube video for "What What (In the Butt)" may help people who want to cite fair use defenses in copyright cases.
In particular, the judge agreed to a motion to dismiss on fair use grounds very early in the case, well before trial and even before the discovery phase began. If such early proceedings catch on it could significantly ease the way for defendants who want to raise fair use defenses and as a result make these defenses much less expensive. Since parodists are often independent or small operators without deep pockets for legal bills this can be a good thing.
(h/t +Donna Wentworth, who used to blog here, for the pointer.)
According to Taylor's blog entry, the Mail does this with some regularity except this time they may just have picked the wrong person to steal from. Taylor is not only a CEO of a gaming company, a gamer in her own right, and a savvy blogger. Plus, she happens to be married to Cory Doctorow of Boingboing, which has more than a little experience dealing with the difference between fair use and outright theft.
I've said it before and I'll say it again: creators should be paid. If the Mail didn't like Taylor's terms for the photographs they could have sent their own photographer out there and paid for their own picture to be made. Not that I think the Mail cares if they get a bad (worse) name in the blogosphere, but I do hope Taylor follows the advice in her comments stream and sends them an invoice, including costs for her time in dealing with this.
On one side: a raft of the biggest names in recording in the late '70s. Everyone from Bruce Springsteen and Don Henley to Kool And The Gang to Kris Kristofferson. On the other side: the RIAA. Let us pause a moment to appreciate and remember all the work this fine organization has done... OK that was fast. What the hell are they doing fighting not their customers this time but household names in music?
According to Larry Rohter for the NY Times, they're about to fight those musicians over something known as "termination rights." These rights were written into copyright law in the mid-1970s and they give the current owners of albums 35 years to profit from it - which they have done handsomely. But after that time, musicians who want to reclaim the rights can do so by giving the Cartel at least two years' notice that they intend to exercise their termination rights.
If you get out a calendar and do a little math 1978+35 = 2012, which is next year. So starting last year some forward-thinking musicians such as Bob Dylan and others assisted by Don Henley's Recording Artists Coalition began making their applications and would like to get their music back please and thank you.
Not so fast! says the RIAA (you have to imagine Frank Morgan as the Wizard voice here). The Cartel claims that these rights don't apply to those recordings and they aren't going to give them up without a fight. Instead, says the RIAA, the albums were made as works for hire and belong to us in perpetuity sort of like copyright and certainly you can't get them back, like, ever nyah nyah. OK maybe I made that last bit up, a little.
The 'work for hire' claim seems to rise (or fall) on whether or not you think that the musicians were employees of the record companies at the time the recordings were made. That's some pretty thin legal ice because if they were employees then things like Social Security withholding and regular paychecks would have been the order of the day. In fact, they were not. Records were made (as they most often are today) based on advances given to artists against future royalties and an arrangement like that leans heavily toward considering those artists as independent contractors who are then entitled to exercise their termination rights.
Much as I'd like to see the RIAA get another black eye here, I doubt it's going to happen. The artists have huge incentive to negotiate a settlement well before it goes to court, let alone the Supreme Court as Rohter writes. In addition, there will be other interested parties such as producers, sound engineers, session musicians and so on who will want to put in for their share of the rights once the Cartel's grip is loosened. Allowing that whole snarl to go to court would likely cost everyone more millions than they want to spend, and would result in confused and probably contradictory rulings. A much better arrangement will be worked out that will allow major labels to continue making hefty sums off the albums while giving musicians some rights to do other things with the music, or to get a larger cut of the profits from new technologies such as ringtones, digital downloads, and music streams.
I don't know of anyone who has tallied the multi-decade profits of the labels from the albums threatened with rights termination, but it has to be billions of dollars. As with the NFL lock-out, the pot of money on the table is too big for anyone to walk away or let it go to waste; a split is in everyone's best interest.
Almost since the moment Amazon announced its Kindle ebook reader, a price war has been raging. It's been bloody complicated and has something to do with the limited number of book publishers, more to do with how they manage their ebook versus physical book businesses, and a lot to do with how new technologies get rolled out and what market lock-in effects mean.
The simple view of things - as presented in the suit - is that Amazon was working to force e-book prices down and the publishers decided they didn't want to play ball. In fact it's a complex situation revolving around who gets to set the prices for ebooks and whether or not a publisher will be locked in to a model or technology.
Initially, the retailer (Amazon) set the prices we would pay for ebooks as they do with physical books. Publishers charge the retailer a price but the retailer had the freedom to charge more or less than that price. In order to encourage adoption of its Kindle and to boost the nascent ebook industry, Amazon priced the ebooks low - often well below hardcover and even paperback prices. This frightened the publishers, who reasoned that Amazon would not forever take losses on ebooks; instead, they feared, once Kindle lock-in had happened, Amazon would insist on lower prices from the publishers. The publishers fought back with what is called "agency" pricing, meaning they and not the retailer would set the prices we pay. Under this model either Amazon plays ball and sells the ebooks for what the publishers want or the publishers deny Amazon access to the titles.
Although losing access to an individual title may not seem like a big deal it can be significant and relevant for adoption by customers. If customers can't find the titles they want on one ebook reader they're more likely to go with another and once you've bought your books on a particular reader you're locked in. In addition authors often have multi-book contracts with and stay with a publishing house for some years. If you want to read the latest Big Name Author book it's likely you're going to be reading something published by the same house that published her previous work. It's a complex Mexican stand-off with customers, publishers, and ebook maker/sellers all having some power to hold other parties to account.
The fight over the agency model started over a year ago with Macmillan going up against Amazon, which retaliated by discouraging people from buying new copies of Macmillan titles, and the Author's Guild and SFFWA weighing in on the publisher's side. This time it's not just one publisher, but the five big names (HarperCollins, Hachette Book Group, Macmillan, Penguin and Simon & Schuster) in publishing.
The agency model has certainly had the effect the publisher desired - ebook retail prices have gone up some 30% in the past year. Given the introduction of new popular readers (Nook and iPad most obviously) it seems like prices ought to be going down. However, publishers do not want to be in a position where they can be dictated to, authors want more money for ebooks, and customers... well, we get the short end of the stick. Again.
SIGGRAPH (the ACM special interest group on graphics) invited Cory to give a Keynote address at their annual convention. This shindig is attended by some of the biggest names on the tech-creative side of Hollywood, in advertising businesses around the world, and hosts some of the neatest research you're likely to watch. Their video show is often a place where the most cutting edge techniques in animation, computer-aided cinematography, and related computer visual techniques such as motion capture are first shown in public.
Cory's address is of course fun to watch - he's very "on". He's also trying to get some of these great creative minds involved in the Copyright Wars in more than a rote fashion. More power to him for that.
Earlier this week, Mattel got its proverbial ass handed to it in the long-running suit over the Bratz doll line. My guess is that we'll now see a quick settlement with Mattel paying something significantly less than the USD 310 million that the judge ordered. This is a huge win for MGA, a small company that has nearly gone out of business fighting the protracted legal battle with Mattel, which doesn't like competitors to its flagship Barbie product line.
Mattel has all along claimed copyright infringement, and argued that the Bratz designs were, in effect, stolen by their creator Carter Bryant, who had worked for Mattel on the Barbie product. In fact, they won a first round (in 2008) and were awarded $100 million. However at the retrial Mattel came out on the losing side both in terms of its claims and also losing the contest over MGA's claims that Mattel had stolen trade secrets.
To add damages to damages, the judge then went on to award not only damages and attorney's fees in the trade secret theft issue but also $137 million in fees and costs for its protracted defense of the copyright infringement claims.
Given the size of these awards the lawyers must be absolutely salivating over MGA's announced intention to go after Mattel again on antitrust grounds. Clearly I am in the wrong business.
Commenter Gareth Simpson pointed me to Mark Cuban's next blog entry on the topic of patents. To say that it's cringe-worthy is a polite understatement. I suppose people worth two billion dollars are equally as entitled as you and I to spew uninformed commentary over the Internet, but geebus.
Cuban's prescriptions for patent reform include abolishing software patents. This is a topic that has been debated at least since the first software patent was granted. I am myself a software patent holder, but I have mixed feelings on the topic. Patents are presently the best form of intellectual property protection available. Contrary to Cuban's one-sentence dismissal the protection offered by copyright is quite weak. I still believe we need a new form of IP protection for software; however, I have to agree that the advances in information science fundamentally challenge the notion that software (information) is different from hardware. Generally, patenting hardware is uncontroversial but then people opposed to software patents must also answer the question of why a program expressed as a custom chip is afforded a different protection than a program expressed as a block of C++ code.
Regardless of which side of the debate you find yourself on (or flip-flop across as I tend to do) Cuban's curt dismissal of the complexity of the issues comes across as ignorant.
Then again, he also wants to abolish "all process patents." I'm going to take a wild guess (since he doesn't bother to state) that what he means are business process patents. Unless he's also opposed to all biological, chemical, and mechanical transformative processes being patented, in which case I find myself wondering what the hell he thinks could be patented. So let's credit him a little bit.
Abolishing business process patents is a less-well-studied suggestion, but not terribly original. The problem I see is that a business process isn't necessarily that different from a software process - certainly every maker of workflow software would like you to think they can encode your business processes in their software (see for example the open-source ProcessMaker if you aren't familiar with this stuff). If we think business processes can be encoded in software then they can also be encoded in machines and now we're back in the weird world of saying "well, yes, you can patent a machine that carries out steps A B and C but if you have human beings doing it then you can't patent it."
Again, I think reasonable people can debate this issue and come out on either side, but you can't just hand-wave them away.
I would love to do a similar dissection of Cuban's opinions of the "benefits" of eliminating these forms of patenting, but I have more interesting things to spend my time on, like Dungeon Crawl Stone Soup.
I've not been able to find any news outlets that are covering this story, but the word among my Apple friends is that if you play a DVD with Apple's built-in DVD player you are no longer able - as of the Lion release - to capture a movie frame.
As of yesterday my profile on Google+ has been suspended. No warning was given (contrary to their written policy). I was suspended because I was participating in the "I am Spartacus" support effort.
If you were one of the readers who followed me there, I'm sorry. This blog and its standard RSS feed should continue to function just as well as before.
My suspension and Google's fight against 'nymity are not really Copyfight-relevant so I won't spend any more cycles here on it, but I do recommend you read what danah boyd has to say on this topic. In my opinion hers is hands-down the best commentary on this, from someone who has spent her career in the social networking area:
Serial entrepreneur, billionaire, and controversial NBA team owner Mark Cuban posted a little mini-rant to his blog yesterday, asserting that changing (US) patent laws would create more jobs. Unfortunately, he doesn't say how he thinks laws should be changed.
I'm sympathetic to people decrying the current craptastic state of patenting in the US. But Cuban's random shot at "patent trolls" comes off as easy and facile. He notes that Google spent USD 900 million for Nortel's patents and seems to share Vlad Savov's sentiment there in engadget that the major reason for Google spending this money was to defend itself against these unnamed trolls.
The problem, though, is that wailing about trolls misses major problems with the patent system, such as random rejections, pathetic prior art practices, and a patent reform bill mired in the political mess of the US Congress, a bill opposed by just about everyone from individual inventors to small businesses, to unions, to large organizations. And really, if you haven't been treated to the (reasonably well-informed, if highly biased) rantings of Greg Aharonian on the horrid state of patenting in the US you're missing a real treat.
With all that out there one wonders what, exactly, has Cuban's ire up? Unfortunately his blog entry doesn't even begin to sketch an answer or suggest any way to solve the problem, let alone demonstrate some linkage between some nebulous patent reform and job creation. If someone made an elevator pitch with this scanty a level of logic and detail to Cuban I bet you that he'd get pitched out on his ear.
Felicia Day is profiled by David M Ewalt for Forbes. Ms. Day may be known to some readers for her roles on syndicated TV shows such as House, M.D. or Buffy the Vampire Slayer. But she's also well-known for her Web video production, The Guild, now starting its fifth season. She's another of the new breed of creators, and she seems to be doing well at it.
Ewalt's column recaps how Day took her own personal gaming obsession and turned it into a low-budget original series show that quickly became an online hit. Picking up sponsorships from big names (Sprint and Microsoft) led to the series not needing to rely on the still-shaky Web advertising business model, and has allowed her to expand the business side of things. Day's company now has deals with iTunes, Hulu, and Netflix and is about to launch a new series in conjunction with Electronic Arts based on EA's popular Dragon Age franchise.
This new series will also represent the first time Day is giving up control of the intellectual property - in a sense she's participating in a shared universe of EA's making. So far this appears to be a win-win deal: Day is an avid fan of EA's Bioware game products and was eager to do the show, and EA has to this point kept a mostly hands-off approach.
As with any of these individuals' stories I'm not sure this could be the blueprint for anyone else's success. Day brings a unique combination of talent and obsession - her promo music video for The Guild ("Do you wanna date my avatar?") played off both her personal good looks and the well-established male sexist tradition of creating anatomically unrealistic female avatars in gaming. Because she was poking fun at herself as well as her fans it helped cement her insider cred in a way that would be hard for someone else to duplicate. Similarly, Day has successfully made a transition from crowdfunded to corporate- and merchandise-funded production, a form of the patron model that many creators dream of but that comes with its own set of perils.
I've been reading a bunch of things lately written by and about people who do creative work for a living (I blame Gaiman's long silence). Here are a couple of articles I think Copyfight readers will enjoy:
First up, The Independent had a feature earlier this month on Steph Swainston, titled "I need to return to reality'. The story covers Ms. Swainston's decision to give up a job as a published fantasy-novel author and start teaching chemistry in school.
That's sort of the reverse path of a lot of authors who work at traditional jobs while they write part time or after hours in the hope that one day they'll make enough from publishing to be able to give up their "day jobs". In reality, of course, you exchange one day job for another. One thing you see repeatedly in authors' blogs is the clear statements that writing is a job, a job you work at a lot during standard work hours, and it's hard work. It seems to be this latter that has motivated Swainston to bail halfway through a two-book deal.
There's just too much stress on authors [...] The business model seems to be that publishers want a book a year. I wanted to spend time on my novels, but that isn't economically viable.
In this vein let me also commend to your attention a blog entry from John Scalzi on the pace and page-count of releases. Both Scalzi and Swainston are making the point that writing - even though it's a job - still requires a potentially long and certainly unpredictable amount of time to go from signed contract to publishable state. And while almost every editor and publishing house I know is very flexible and frankly expects authors to miss deadlines the related point in Swainston's interview is that missing a deadline also means no checks getting deposited in the bank. Bill collectors tend to be a lot less forgiving than publishing houses when one is missing their deadlines.
Swainston's other point is complex and potentially more touchy - writers, she argues, end up writing inside a bubble. Divorced from other contact with the world writing can not only be a solitary and lonely activity but this lack of contact can leave an author feeling a loss of meaning in her life. Swainston's decision to teach chemistry is no accident - she finds it "feeds that sense of wonder" that all authors need.
The second artistic item is musical: Bob Ostertag writes in the August issue of The Wire (available early online) about his experiences going from a standard CD/catalog-sales musician to giving away all his music for free online, an act he called "professional suicide."
His article titled "Collateral Damage" is about where he is in this experiment. Five years ago he reckoned his sales at a mere 1-2k per CD. Many were released on small labels and when those labels went away the CDs became a form of orphaned work. Most importantly for Ostertag's calculations, he wasn't getting any money for them.
Compare that, then, with the experience of giving his music away for free download online. He reports that downloads are now 10-30x what sales numbers were, but on the downside people are not using his site's mechanics to donate money voluntarily in recompense for what they choose to download. Ostertag notes that this feeds his soul and motivates him - just as Swainston was seeking her own motivation. But also like Swainston, Ostertag has real bills to pay. And like Swainston, Ostertag pays those bills with a teaching gig.
Ostertag's column goes on to discuss structures and changes. Echoing points I noted last May, Ostertag agrees that music listeners never had it so good. Compared to five years ago, tens of thousands more albums are being released, millions of band pages are going up on MySpace, and (I would add) thriving efforts such as blogs run by DJs, musicians, composers, and bands reaching out directly to their fans and potential fans.
The question that remains unanswered, sadly, is whether something that is this good for music lovers must remain not so good for music makers. And really, how do we want to compensate people who are making all this music?
Having discovered how the porn industry is like the Cartel, we now visit the equally vital question of why a news organization would claim copyright in images taken by monkeys. No, I'm not making this up. I can't make up stuff this good.
The real participants in this affair are the blog Techdirt, the award-winning nature photographer David Slater, and Caters News which claims to be the authorized syndicator for Mr. Slater's photographic work. However, the work in question here is a set of pictures that were taken by monkeys, who happened upon a camera that Slater had accidentally left in their reach.
Techdirt initially asked the question of who might own copyright in these photographs, and published a couple of the images about a week ago. It's a cute and funny story, and nobody thinks much more of it apparently. That is, until the day before yesterday, when Techdirt receives (and publishes) a letter from Caters in which it claims to be the syndicator, claims that Techdirt is using photographs to which it doesn't hold copyright, and demands that they be taken down. But what about fair use, counters the blog?
It would seem - and the blog entry is pretty lengthy and extensive on this point - that Caters either has never heard of the concept or doesn't want to admit that it exists. Techdirt seems to be of the opinion that no copyright exists, which I think is wrong for reasons I'll explain in a moment, but they also have gone to a pretty decent length to check with lawyers and are on solid ground for using the images. In fact, a couple of the images can be seen with Caters' ghosting on it, so it's not like TD are claiming originality in these images. They're just pointing at them and saying "hey, here's an interesting story."
Now, the place where I disagree with them is whether or not a copyright exists and if so whose copyright is it. Let's start with an agreement that the monkeys that took the original photographs don't own any copyright, by virtue of copyright being granted to persons. I don't even want to touch on the question of what "moral rights" they might have in Europe - let's stick to US/Berne-style laws.
The problem is that the image presented on the Web isn't the image taken by the monkeys. It's a derivative work. As someone who spends way-too-many-goddamned-hours in Photoshop I can tell you that the process of turning a RAW into the PNG or whatever format gets published involves both mechanical and creative processes. Color correction, light balance, and image cropping are easy examples of places where a photographer applies creativity, skill, and knowledge to get a final output. I'm still no lawyer, but as I understand copyright if I take non-copyrighted source material and apply creative processes to get a new derivative work, I can own copyright in the result.
I don't think there's much debate about "West Side Story" being a retelling of "Romeo and Juliet", nor do I think there's a lot of debate about whether or not WSS is a copyrighted work. I think the exact same logic applies to these photos. Calling them "pictures taken by monkeys" makes for an amusing headline or two but it doesn't match up with reality.
The hook for the story is the for the first time in the digital music age (since 2004) album sales are up. Admittedly it's only 1%, but when you reverse a seven-year trend even for a moment that's kind of news. So of course one wants to answer the question of how this happened.
To his credit, Sandoval doesn't just take the easy answer - oh, they shut down LimeWire - though he does touch on that point. Instead he delves into a variety of factors and possible explanations, looking at local phenomena such as the sudden rise of Adele, a Brit-pop star, and the recent release of a popular Gaga album. In addition, he notes that there has been some potentially disruptive pricing going on with Amazon selling an entire digital album at 99 cents, and standard catalog CDs selling for USD 4-8.
Remember the days when CDs cost more than DVDs? Yeah that was back in 2004-5, which is when the album business was last growing in profit. Those days are long gone, and I suspect the days when disruptive pricing can have a significant impact are numbered already, too. The impact of social networking on music sharing is only beginning to be felt - here's a Mashable by Ben Parr on how to use social media for sharing, for example.
In addition, as Sandoval's co-writer on CNET Lance Whitney wrote just a couple weeks ago, there's a huge rush on to move people to 'cloud' music services. Each service has its own spin on rights, uploading, and permissions but all depend on the notion that people no longer want to "own" music so much as they want to listen to it wherever/whenever they are. If the cloud services succeed it will make the entire past couple of decades worth of argument about rights and ownership seem as quaint - and as irrelevant to the masses - as a discussion of whether the fish fork or the salad fork should go on the outside. (Image nicked from homeworkshop.com - click through to see it in context.)
Allegedly, computers at those IP addresses - 1,300 in two Florida counties alone and the EFF estimates as many as 150,000 nationwide - downloaded porn films. The question of whether the computers' owners or the people named in the lawsuits did that, or even knew it was being done, is left as an exercise for the courtroom. Except most people won't get that far
As with the Cartel's jihad, the goal of this campaign is a simple shake-down - get people to pay up (USD 1500 per settlement) rather than fight. As with the Cartel's jihad there are the obviously wrong targets - the old granny, the providers of free wireless, etc. But that's not going to stop this jihad either.
The fact that you'd have to go into court and talk about your porn-viewing habits (or lack thereof) just adds a layer of delicious embarrassment to the whole deal. Corynne McSherry of the EFF gets a quote in the story, but it's up to another lawyer to call a spade a spade. Lory Lybeck calls it:
A perfectly designed extortion scheme
If that name seems a bit familiar to you, it may be because she was in the news back in 2008 - yes, you guessed it - defending people victimized by the RIAA's campaign and proposing a class-action lawsuit against the Cartel.
I haven't looked into the details, but presumably there is some kind of DRM wrapped around the file download that Adobe's PDF readers recognize and use to block your reading it seven days after download or after first opening it.
Bernstein points out that many people buy books at full price and then after they are finished with them, re-sell at some small loss on Amazon anyway. Other people (like me, sadly) buy books, read them once, and then shelve them never to be opened again. For these sorts of people the limited license might be a good idea, at least from a cost perspective.
The problem (which people are pointing out in the comments on the blog entry) is that this model blocks use of the work for reference. A limited license might be useful for books that are more entertainment-oriented and less reference works, but it doesn't seem likely to catch on with weighty law tomes, even though those tomes tend to be pretty expensive.
Allen points out that there are now multiple success stories we can point to - people who were turned down by traditional publishing houses and who have gone on to have best-selling self-published books, even beating out well-known name authors in sales rankings. There are also bonus points for authors having more control, and taking home a much larger share of the sales revenue.
That said, an author can't just hand over an e-book and expect it to sell itself. The author has to take on many of the duties previously handled by the big publishing houses - promotion, marketing, and fulfillment among them. Some of the self-publishing enterprises give authors mechanisms for this, but none are offering the kind of full-service boutique you get from, say, a Random House.
Pricing is also a challenge that the self-published author has to surmount. Allen quotes Locke as saying that the 99-cent pricepoint of his e-novels was originally intended as a "loss leader" but in fact they've become his biggest sellers. Shades of Cory's argument that giving his stuff away was selling the hell out of it. Low pricing itself can be a two-edged sword. People (fans) who get used to a low price for one book may not stick with you if you raise the price and even though e-publishing systems often give authors the chance to change their selling price, there are no clear guidelines about whether or not to raise or lower a price.
I think one of the sure signs that self-publishing will have arrived as a well-accepted business model will be when we begin to see real statistics and case studies around these issues - and not just the current crop of how-to books. If those rigorous studies don't already exist, I predict we'll see a good sampling of them before this time next year.
One of my current hopes is that my younger son who, at age 8, thinks the Fibonacci Sequence is cool, grows up to be like Vi with a love of math and art and music and no hesitation about sharing it with the world.
This will take a bit to set up, so bear with me. Some people, not least of them Richard Stallman, think that the term "intellectual property" is itself nonsense - treating ephemeral items such as patents and software the same way one treats physical objects like cars and plots of land is wrongheaded. I've tried to get Stallman to give me a clear answer on what he thinks they should be treated as, but gotten no coherent response. So let's assume for the purposes of this discussion that property means "property" and we can treat them the same. (Image taken from the cover of Richard Posner's book on legal theory.)
That's important in this case because there are laws, generally classified under the realm of eminent domain, that control how and when a governmental entity can take what is nominally private property. If we're treating intellectual property in this way then you can, in theory, apply eminent domain principles to a state actor taking intellectual property.
To my knowledge, this is a novel theory. Or it was until last month when NeuroGrafix, a medical imaging company, sued the regents of the University of California for infringing NeuroGrafix's patents, on the theory that their infringing activity constitutes an illegal taking under the rules of eminent domain. NeuroGrafix will argue that a taking of this sort requires both due process and potentially just compensation, as guaranteed by the 5th Amendment.
Why go through all this indirection and not just sue UC for ordinary infringement? Well, the short answer is "you can't"(*). States enjoy what is called sovereign immunity - you more or less can't sue them for damages without their consent. There was a case in 1999 called Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank that dealt directly with the issue of patent infringement claims. Since UC is an arm of the state it enjoys that immunity umbrella.
Like all novel legal theories, this one will likely need to be put to the test more than once before any law is considered decided. For example, I'm not clear on what NeuroGrafix will argue is the "taking" in this case, or how they'll try to value the property lost, for which they'll claim compensation.
That's part of the danger of making this analogy between physical and intellectual. We've all seen ridiculously inflated damages claims in IP cases before. H/T to PATNEWS for the pointer; this case doesn't seem to have gotten much mainstream media attention.
(*) the whole notion of sovereign immunity is still much in debate. The Wikipedia entry for the 11th Amendment, which established this immunity, notes that as recently as 1999 the Court split 5-4 on an immunity question.
Pandora also has more fees going out to BMI and SESAC and has yet to come to terms with ASCAP. Once all that and the 2015 increases are factored in the cost to Pandora will be just about at the level proposed back in 2007 that would have killed the service. In theory, ad revenue available now and growing ought to be enough to cover those additional fees, but somehow I doubt it.
For those who haven't been following this story for the past few years, John Shinal's MarketWatch column has a good bit of history, going back to the time period when I thought Web radio was going to be killed off. It appears that they got an 8-year stay of execution but unless something changes radically I won't be holding any of their stock as a long-term investment.
He reminds would-be screenwriters that ideas can't be protected in the first place, only tangible forms in which the idea is fixed. In addition, he notes that:
[T]here is no bigger sign of an amateur than someone who’s worried about their stuff being stolen
In Hollywood, as elsewhere, creativity is a collaborative process. Ideas have been done a hundred times before and been seen by the producers at least ten times before. Real people who really work in this industry share, critique, feed off each other's stuff, pay homage, make suggestions, and in general participate in a free flow of ideas that feed the creative process.
Gervich's advice to aspiring screenwriters is much the same advice as is given to authors in other fields: make your stuff unique. Make your voice stand out. Make a contribution that is wholly yours and that cannot be replaced. The idea is not unique - the writer is. Separating the two, and focusing on protecting and nurturing the latter is the whole point.
The article author, Adam Liptak, reports that the dictionary authors themselves are puzzled that the Justices seem to need to be sure what words like "prevent", "delay", and even "of" are supposed to mean.
“I think that it’s probably wrong, in almost all situations, to use a dictionary in the courtroom,” said Jesse Sheidlower, the editor at large of the Oxford English Dictionary. “Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them.”
Although the article was prompted by the repeated citations of dictionaries in a patent case, the problem seems rife in SCOTUS rulings. Liptak also notes that Justice Breyer criticized Chief Justice Roberts for resorting to dictionary definitions in an illegal-hiring case.
I find myself wondering - do the Justices really not know these words? Do they think Congress intended some specific meaning for these words that can be intuited from dictionaries? Are they comparing dictionary definitions of words with the (admittedly specialized and often obscure) words used in patent applications? And to echo Sheidlower's point - do they not realize that dictionaries don't set rules for word use - that went out shortly after Daniel Webster died. Rather, a modern dictionary attempts to capture how words are used and meanings assigned to them by the population the dictionary samples and addresses.
News of the Weird has this great section called "News That Sounds Like A Joke" in which they report on things in the actual news media that sound on the surface like someone is pulling a prank. Today's entry falls in that category.
As the person who sent this item to me (the company that hosts my personal Web site) said "When I give milk away I don't need to talk to my grocer, a farmer, or a cow". Indeed. Beyond that, I got nothin'. Is someone pranking CNN here?
The artist who created the tattoo, Victor Whitmill, claims copyright and sues for infringement. Post walks through the elements necessary to establish copyright - and remember that since Berne there is no requirement that copyrights be registered in order to exist. If a tattoo can be copyrighted - and Post strongly agrees that it can be - then the work was copyrighted as soon as Whitmill did it.
Post also dismisses a claim that "the human face cannot be a 'medium of expression' for purposes of the Copyright Act" but he does not deal with any of the issues I think copyright in a tattoo raises. For one thing, a tattoo is often done in more than one sitting. In the case of a complex tattoo there may be a session to set the outline, another session to fill in color and another session to do complex detail work or shading.
Unlike, say, a painting on canvas that may also be done in multiple sessions, the partially completed tattoo is shown and fixed after each session. The subject may - for example, due to lack of money - not return for follow-up sessions. Is the partially completed tattoo the copyrighted work, even if it differs substantially from the original agreed-upon design? Are there multiple copyrighted works created in series here? In this case we might think of a tattoo as more like a story that is printed in a serial form - each chunk/chapter that is printed is itself copyrighted, as is the final compiled work.
Tattoos also are often modified. A person may choose to have a tattoo extended, either by the original artist or by another artist, years later. Since copyright term is long enough to cover these periods do we have to treat these additional artworks as derivatives of the original? Do I have to get permission from the original artist to modify or add on to my existing tattoo? If I can no longer find the original artist does that make my tattoo an "orphan work" that I'm legally not allowed to create a derivative of?
And finally, where does copyright restriction intersect with our general laws on personal bodily freedom. Lawrence v Texas and other cases established some strong precedents on personal liberties - generally speaking I'm allowed to do what I choose with my body as long as it doesn't cross certain thresholds. Does my modification of my tattoo fall under personal liberty permissions even if it violates the original artist's copyright? What if my modification is always covered by my clothing in public and only visible in private; does that make any difference?
Copyright may, as Post claims, be a natural form of protection here but I fear it raises far more questions than it answers.
A Copyfight reader who saw my footnote about working at a financial firm sent me a pointer to a law.com article on Lowry's Reports Inc. v. Legg Mason Inc.. This decision, which is now a couple of years old, sets an interesting standard for forwarding of copyrighted material within an corporate environment. Email makes this trivial, but in a word: don't.
The notion that sharing something like a copyrighted newsletter would be fair use wasn't accepted by the court, and interestingly the company (financial firm Legg Mason) was found guilty of contributory infringement - the same thing that P2P software makers have been found guilty for - because employees used company resources to email around copies of e-newsletters.
The article is pretty basic, spelling out everything from the definition of a copyrighted work to a definitional footnote on the fair use exemption, but still interesting to me. The company I work for doesn't produce research - an umbrella term in the financial industry for any sort of material describing a company, its products, its financial standing, and/or its expected future performance. Nor do we consume it, since we're not investing our own or our clients' money. But many of our clients do produce large amounts of research, and all of them subscribe to several forms of it. I imagine many of them would be surprised to read what was decided in Lowry.
Research producers have tended to follow models similar to software producers in dealing with clients - minor copying is generally ignored; egregious copying is discouraged or prosecuted as a last resort. And also like software, you can buy multi-seat or sometimes site-wide subscriptions to research that lets you sidestep the entire copyright question entirely. And like software, the research industry is at a loss to know what to do with the new modes of distribution such as e-readers, tablets and other mobile devices.
Meanwhile, I wanted to point to three recent stories that touch on this topic. First, there was a big announcement today that GlaxoSmithKline (GSK) would be lowering the prices on certain vaccines sold in developing countries down to something like 5% of their US cost. On one level this isn't all that big of a change - GSK has long had what it calls "tiered pricing" and vaccines outside the US can be had for half or less the cost we pay here. A 95% reduction then means that the drug will be more affordable to more countries, particularly in the poorest parts of Africa. One of the vaccines involved in the new announcement protects against rotaviruses that are said to be responsible for half a million child deaths annually across Africa.
Technically the virus itself isn't fatal; it causes diarrhea and dehydration that do the killing. This matters a good deal in the developed/developing world divide. In the US if you get a rotavirus you'll probably be miserable but you can get treatment and won't likely dehydrate. But in the developing world where access to medical care on-demand is rare and parents may not be as well educated to recognize symptoms early the results are much more often fatal.
The reduced prices for the drugs will be paid by foundations and grants led by the Gates Foundation. In an interview on NPR (which I can't find the link to as of this writing) the GSK spokesman said that the 5% sale price was essentially at-cost, covering manufacturing and distribution. The drug companies then will not be losing any money on the production and presumably the other costs associated with the drug are covered by the higher prices paid in the developed world. The free good PR probably doesn't hurt either.
Speaking of higher prices for US patients, Reuters has a story on how the increasing costs for cancer treatments are pricing them out of reach of many Americans. The picture painted by this story - of people driven to bankruptcy, people giving up on treating cancers that should be treatable - stands in stark contrast to the rosy picture of the vaccine story. Reuters' piece focuses on a study by a Dr. Lee Schwartzberg that looks at new oral means of administering medicines. In theory oral medication should be cheaper for the patient than the traditional IV since it involves less equipment and fewer skilled personnel. However, since the new therapies are all under monopoly (patent) protection there are no generic equivalents, no price competition, and the result is that people are unable to afford the drugs that would save their lives, or their childrens' lives. In a parallel study by a Dr. Yousuf Zafar at Duke, it was shown that the people struggling with these bills are not the poor and uninsured. 99% of these people have insurance, with 83% having some kind of prescription coverage. Still, the prices are too high. It's a shame that this story isn't getting the same prime-time airplay that the first one is getting.
Finally, a nod to a Volokh Conspiracy post by Eugene Volokh about Mayo Collaborative Servs. v. Prometheus Laboratories, Inc.. This is a fantastically important case debating the question of the scope allowable for patent claims that deal with observable "correlations between blood test results and patient health". The case has been to SCOTUS twice and been remanded down for further argument both times. (See also the SCOTUSblog page.) It's up for certatori again and if you're the praying type, pray that this one gets cert. The way the law stands now, a set of patents (in this case owned by Prometheus) can constitute a huge and very broad monopoly, effectively preempting any number of uses or observations of naturally occurring phenomena. If that is allowed to stand, not only will competition be stifled but whole lines of research and investigation will be snuffed out because they're based on observing naturally occurring phenomena.
I know I said I wasn't going to write more about mash-ups but this is one of the better examples of corporations making use of the new ways people interact with music content so I wanted at least to nod in their direction.
Vevo puts a lot of official music vids up on YouTube. As I mentioned back in March, there's now an expectation that your device will be able to connect to the cloud and get you the music you want so there's really no need to keep your own MP3 copy of it. Vevo is supplying this demand with tons of free music, and taking the opportunity to promote itself, its artists, and its corporate and advertising partners along the way. I can't tell you if they're making money at it, but I applaud them for trying to build a new business model.
Now if your device happens to be a hand-held mobile device (still called a phone for about the same reason we called cars 'horseless carriages' at one time) then your likely method of pulling from the cloud will be an app. And as part of its strategy, Vevo has teamed up with YouTube to release an app that attempts to fulfill users music needs by directing them to all this content Vevo has put on YouTube.
Free apps, and advertising, are notoriously hard to measure for effectiveness. If you charge for an app, or for content, you have easily available numbers that can be read for effectiveness. Whole books of economics are written around things like price elasticity and the balances of supply and demand - and all of them rely on simple transactional records to demonstrate their points. This here is much more slippery. Vevo needs to make a profit to stay in business. Will its advertising, its association with a popular remixer, and its head-first dive into providing free streaming music from the YouTube cloud help that? I have no hard numbers, but my gut tells me yes, they're on the right track.
NYSE sent a letter to TPM claiming that the photograph accompanying that original TPM story violated NYSE Group's "Registered Trademarks." This is... um, hogwash I think is the polite term. First of all, a trademark isn't a copyright. To violate a trademark is to create confusion about the mark and anyone who thinks the TPM story was published or endorsed or paid for by NYSE is on crack. The use of the photo with that story isn't going to confuse anyone about what NYSE does, another purpose of a trademark.
This is pure legal FUD, and shame on NYSE's lawyers for it. (h/t to Volokh Conspiracy for the original pointer.)
(Full disclosure: I work for a company in the financial industry; as such I'm prohibited from trading in certain instruments related to the financial industry. The company I work for does send lots of order flow to NYSE and we have products and corporate agreements in conjunction with them. I've even partied on the NYSE trading floor, once. If any of that constitutes conflict of interest, well now you know about it too.)
For a while in the 80s and 90s it seemed like shared universes were all the rage. The idea was that one or two authors would create a premise - usually an idea/event/location/character and then invite their friends to write in that universe. Reusing characters, sharing settings familiar to readers, and building on the central foundation were all common themes. The two shared universes I spent the most time in were the Wild Cards and Borderlands spaces. Commentaries about teen escapism can be elided, thank you.
After more than ten years with no material, Terri Windling's Borderlands have returned with a new anthology called "Welcome to Bordertown". As with many sub-cultural things, the Borderlands have been kept alive in the past decade by fans who have celebrated the ideas and characters in games and costumes and of course fan fiction. The signature "punk elf" has permeated the genre and spawned dozens of imitators and homages. A new generation of readers has found the books, and some of those who loved the Borderlands universe as kids have grown up to work as writers themselves. The new volume collects some of this new enthusiasm as well as bringing back old favorite authors as well as new voices.
"Shared" doesn't mean "free," though. Like other sole-written material, the characters and images and signature names of the Borderlands remain the copyrighted property of their authors, and you can see careful footnoting and cross-referencing from story to story. On the consumerist hand this is great - it's one of the original "people who bought X might also like Y" reference links. On the free-ist hand, it's less exciting. Windling and her co-contributors make choices about who they want to let play in their playground and the rest of us have to go make our own playgrounds for now. Some day Borderlands may be free and open to all to use - this latest release reminds us why that's so desirable.
The result, called "Scene 64" in the contest, will be posted for voting and a popular fan choice will be incorporated into the film, with the remixer getting a screen credit. I haven't looked into the details yet - it's not clear if you can upload your own original elements or only use the bits already in the library. So it's probably not a full remix for the film itself, but the free availability of this content almost certainly guarantees that other remixes will be made.
The claim is that restauranteur Fadl Issa violated NHL copyrights by displaying a banner and a picture of someone wearing a Canadiens jersey. Not satisfied with that, the league is also demanding that the hockey enthusiast also not use the phrase "Go Habs Go", which it claims is a trademark. Presumably, the NHL would like to do everything in its power to discourage enthusiastic fans because that strategy worked so well for the RIAA.
In anticipation of receiving my own cease-and-desist letter I will keep this entry devoid of any pictures of hockey, fans, jerseys, logos, or slogans that the NHL might think of as its Precious.
Since I gave Greg Sandoval such a hard time last go-round I wanted to take a second step away from my lack of comment on the LimeWire case to speak better of his reporting this time.
Sandoval's May 4 column highlights points of the defense LimeWire is making against the RIAA's claim that P2P, and particularly the LimeWire client and network, are the cause of the Cartel's retail malaise. Part of what I excoriated Sandoval for was just foolishly parroting back the claims of a market research firm about that malaise. Now, just maybe, we'll get the truth. And we'll get it because the Cartel's own executives spoke it, and it is now part of the public record. The things we Copyfighters have been saying publicly, the executives were saying in private.
LimeWire's trial is in the penalty phase. They've been found guilty of contributing to illegal sharing, copyright infringement, and so on. The question to hand now is what amount of damages are they responsible for. To a significant degree the answer to that question could turn on the degree to which P2P and file sharing has been the reason for lost revenue in the Cartel's business. The Cartel's position, of course, is that it's all their customers' fault, and the fault of companies like LimeWire that served those customers and facilitated their sharing. But when you peek behind the curtain, here's what you get:
"[T]he real problem is that there is no technology coming from the record companies" - Doug Morris, former CEO of Universal Music
"[W]e inadvertently went to war with consumers ... [and] consumers won," - Warner Music head Edgar Bronfman, Jr.
"We can [compete with free]. We have to. It's just that we have to be creative and add value." - Universal Music CEO Zach Horowitz
"Burning and ripping are becoming a greater threat than P2P." - RIAA chairman Mitch Bainwol
As I noted earlier, I have a potential conflict of interest, so I'll refrain from my usual judgemental closing paragraph. I just wanted to see these words spread a little farther. In your own words, gentlemen. In your own words.
As Al notes in the blog entry, his parody tunes fall under one of the traditional fair use exemptions and as such do not technically require anyone's permission. However, as a matter of his "personal policy" he seeks permission beforehand. In the old days, a tune that didn't appear on an album would be buried somewhere. These days, though, Al could still release his version, "Perform this Way", on YouTube, which is what he did, as well as releasing a free MP3 download of it.
But wait, there's more. News travels by strange means and the upset on the 'nets about Gaga's refusal reached her ears. Where, it seems, it was news to her as well. According to Al's blog update on the situation, Gaga's manager has admitted that he never even sent Al's original request to her. Gaga hadn't refused permission; she wasn't even aware she had been asked.
This is an old lesson, but one that bears repeating. When you hear that $BIGNAME has said or done such-and-such, treat it with a grain of salt. Performers and creative types accrete layers of people around them as they get more famous and as often as not something that's attributed to a Big Name is actually just something a publicist or manager thought would be a good idea. One of the neat things about living in this future is that our new technologies sometimes allow those walls to be pierced, with interesting results.
A few days ago I pointed at the underreported relevance of Viacom v YouTube and the associated ideas of safe harbor and takedown notices. I've since gotten a private communication of frustration from someone who believes Facebook is potentially blocking this kind of arrangement from working.
Here's the gist: this person is responsible for enforcing a contract between his organization and a broadcaster. The broadcaster pays for exclusive rights to film and sell recordings of an event; in return he, acting on behalf of his organization, agrees to help enforce the exclusivity by delivering take-down notices when infringing material (such as home-made recordings of the event) is found. So far so good, all in accord with how the Copyright Act envisions things should go.
The problem comes when people post their videos not to open sites like YouTube, but to walled gardens such as Facebook. The person gets a notification (say, someone sends an email saying "I saw a video of your event on Facebook") but when he goes to Facebook to search for the video he's prevent from searching it. The consequent is that he can't provide an adequate notice to Facebook.
The question to hand is whether sites like Facebook are doing enough to permit copyright holders to issue proper notices. I'm not certain. The notion of friends lists and posting things privately to your friends is inherent in most social sites; I don't want to lose that, nor do I think I want Facebook to be legally required to go on fishing expeditions through user content. On the other hand, if being less open is allowing Facebook to escape responsibilities that more open sites like YouTube have to handle, doesn't that encourage the walled gardens and discourage openness?
I believe that much of this would not have happened if the story hadn't gotten big-press coverage, and it highlights the challenges inherent in monopoly grants such as patents. KV's foolish behavior with its windfall is probably not reason to abolish monopoly grants, but certainly the government should be (more) careful whom it grants a monopoly on what.
Back in February I put up a quick pointer to a TorrentFreak note that 84,000 domains had been shut down by mistake. Well, along with 84,000 mistakes the Feds also tried to seize the domain names of about 80 sites that were accused of sharing files or selling counterfeit goods. You'd think they could get it right 1 in 1000 times, no?
Well, um, no. TorrentFreak's post-mortem on the shutdowns indicates that most were back on the net in a few minutes under new domain names. Sometimes it was a simple as changing a .com domain name to a .info or other TLD.
Of course the MPAA and government tout these as "successes" which leads to two possible conclusions. One is that they're just too stupid to understand how the domain naming system works; two is that they're just willfully misleading (that'd be "lying") to the public. Take your pick, and keep this in mind next time you see someone claiming that the COICA bill is a good idea.
I confess that the state of the industry scared me off back then. Well, here we are nearly four years later and the question still remains relevant. The industry is fragmented and disorganized, and one person's experiences may or may not be a good guide to others in what to do, what to avoid, who to do business with, and how it may all turn out. I was reminded of this by Cory Doctorow's latest column for Publisher's Weekly.
In this piece he talks about his own checkered experiences - including run-ins with Createspace - getting his story published and listed in the complicated DIY publishing world we have in 2011. In my social group we have an acronym for this - WoWftVoE. Words of Wisdom from the Voice of Experience.
David Post (of The Volokh Conspiracy) is rapidly becoming one of my favorite sources for Copyfight stories that don't get adequate mainstream media coverage. On Friday of last week he put up a pointer to his "brief" in the Viacom/YouTube case that is to be argued before the 2nd Circuit.
Post makes the point that the decision to be rendered is potentially ground-breaking for not just YouTube but for the whole "safe harbor" exemptions provided by section 512(c) of the Copyright Act. These exemptions have allowed not just YouTube, but every blog, social site, site that allows user comments, and pretty much the entirety of what is sometimes called "Web 2.0" to flourish in conjunction with, rather than as slave to, copyright restrictions.
Safe harbor basically means that you, or I, or anyone else putting out material on the net or providing hosting for material on the net, can do so freely in good faith and when given information indicating that material we posted or hosted is violating copyrights we can then, post facto, remove that material. Viacom, representing the Cartel in this case, would like that turned around. They'd like to require that sites block material based merely on suspicious labeling, or other external markers. If I upload a photograph of, say, my dog and call it "Lindsey Lohan revealed!" the Cartel thinks that label is sufficient to require the photo hosting site to block my picture until they can inspect it to determine that it's not something Ms Lohan or a professional photographer would have a copyright interest in.
Post has put together a concise "brief" written with Annemarie Bridy and aimed at law professors to help them understand (and presumably educate their students) on just how wrong the Cartel position is. Post points out that pretty much all the successful Web 2.0 sites are American-based and operate pretty much only because they can use the safe harbor provisions to move huge volumes of content quickly. Take away this unhindered flow and... well, you'd have something that much more resembled Egypt, or even the U.K. where, despite a long tradition of radical speaking they have far fewer protections for online speech than we do here.
From a legal-path perspective there are two ways this can go. If the 2nd rules to keep the interpretation of the safe harbor provisions as they are then it would be in agreement with the 9th Circuit and it's extremely unlikely that SCOTUS would grant cert. If the two Circuits disagree, however, that's a standard way to get a case before the Court.
There's really not much in his entry that will surprise long-time Copyfight readers, though I like his quoting Ecclesiastes. He touches on themes of self discovery and fan fiction and much more - I won't spoil it because you should read the original. It's a brilliant set of ideas to give to young artists and almost every one of those ideas violates some DRM policy or some copyright restriction somewhere. The lesson - the overall lesson that gives the essay its title - is that learning to do art is transgressive. To the degree that we crank down the screws of control we are stifling art, and destroying the learning process of new and undiscovered creative people everywhere. Rip, remix, release and in the process find your own voice and individual contribution to the stream in which we all swim.
I've been avoiding writing about the LimeWire debacle, not least because of potential conflict of interest (*). As always, I speak for me and nobody else. Not Corante, not my company, and certainly not Gorton or LimeWire.
With that out of the way, let me just say: CNET, you're wrong. Your headline writer is wrong, and Greg Sandoval (whom I normally think better of) is wrong. Allow me to demonstrate.
the percentage of Internet users who download music via peer-to-peer services was at 9 percent in the fourth quarter of 2010, compared to 16 percent in the same period earlier in 2007
Well, that certainly seems significant. In the three years since LimeWire was shut down, fewer people admit to shar... wait, you mean LimeWire wasn't shut down three years ago? Err, no. It wasn't. It was shut down in October of 2010. So approximately 2.5 months worth of LimeWire absence was included in the period measured, out of a total of 36 months. For those bad at math, that's less than 10% of the time.
The claim, then, is that an event that happened in the last 3 months of a three year period somehow caused a retroactive drop? Either that violates causality as I understand it, or someone in the P2P industry has invented time travel and isn't sharing it. Or maybe, NPD is full of shit and Sandoval is guilty of just repeating what he's told rather than thinking for himself.
To cut NPD a small amount of slack here, they do admit that former LimeWire users are moving to other sharing networks. But really, this is just marketing puffery. NPD has no idea what caused the drop in self-reported file sharing over the past three years. Maybe it was that people thought it was an increasingly bad idea to admit that they used LimeWire to random marketers when there was a relentless stream of bad headlines about LimeWire.
I found the above two links in under 15 seconds of "research". Were I an actual paid reporter - as Sandoval purports to be - I would have done some actual research (which is different from "market research" puffery issued to please a paying client) and found out more about where the music sharing has gone. P2P networks still have significant traffic in copyrighted files. But YouTube and Twitter and other "Web 2.0" sites have picked up an enormous amount of the slack.
And were I an actual paid reporter, I might have dug into what I think is possibly the most interesting music-sharing story of 2011, which is that people aren't downloading music as much anymore, but they're sharing it more than ever. Streaming music, both legal and illegal, is finally taking off in a big-time way. People no longer feel as much need to have their own copy of an MP3 on their disks because they're confident they can be connected all the time to a network that will supply them the sounds they want when they want it. Between broadband penetration to homes and a proliferation of pocket devices (mostly calling themselves cell phones) that have the ability to stream low-bitrate MP3s or better, we are likely to see the local storage of media go the same way as email has gone in the past decade. And that will impact old markets like P2P networks far far more than yet another sharing company shut down by the Cartel.
I hope to be writing more about this in the rest of this year.
(*) In my day job I work for a company in which Mark Gorton is a major stakeholder. I've met him twice at company parties. He has no impact on my livelihood directly, but the case against LimeWire has affected all the companies in which Gorton is invested. So there's a potential conflict that readers should know about when they consider my writing.
Under the ponderous title "Administration’s White Paper on Intellectual Property Enforcement Legislative Recommendations", the Obama Administration has issued its latest call for more punishment of IP criminals.
The 20-page PDF is a hodgepodge of wishlist items an enforcement bureaucracy can dream up, and it has the unpleasant behavior of lumping together all forms of IP crime. On the one hand, when talking about the manufacture of counterfeit drugs and fraudulently marketing them, you're talking about a serious crime with actual bodily harm or even life-threatening implications. On the other hand, the document does nothing to distinguish this level of crime from the kinds of behavior that have come to be treated as major crimes in the Copyright Wars - sharing files, recording movies off theater screens, uploading promo copies to torrent sites, and so on.
For example, the report recommends "Increase the U.S. Sentencing Guideline range for repeat intellectual property offenders" without any effort to distinguish the types of offenders, or the impact of the offense. This would, presumably include someone who shared multiple songs over a P2P network. Or perhaps you can throw mom in jail for longer if both her son and her daughter share music with their friends, or rip lots of CDs to their iPods.
While the introduction to the document claims that "legislative changes [will] increase the effectiveness of U.S. enforcement efforts" what this comes to in plain English is the idea that if you make more things into crimes, and make the penalties for crimes bigger then you've somehow improved enforcement. I fail to see that linkage.
There are a few proposals to increase the range of law enforcement powers; for example, "Give law enforcement authority to seek a wiretap for criminal copyright and trademark offenses." This might be an effective move. Unfortunately they're placed at the same level as recommendations such as "Give DHS authority to share information about, and samples of, circumvention devices with rightholders post-seizure."
In case you can't parse that, what it says is that the government will give commercial entities access to things like crack programs. Not that a company couldn't get a crack program itself, but knowing that this crack program is effective against that DRM system is potentially a competitive commercial advantage for the company getting information from DHS, and has no relationship at all to DHS's enforcement efficiency.
Finally, tucked in at the end of the report is a recommendation to create a new copy right:
The Administration recommends that Congress create a right of public performance for sound recordings transmitted by over-the-air broadcast stations.
The language of the justification for this talks about "overseas royalties" but that's a smokescreen, in my opinion. The real goal here is helping the Cartel claw back money from broadcasters. They succeeded in doing this with Web radio about four years ago. Now they want to go after all broadcasters and Obama's Cartel-controlled DoJ is champing at the bit to help them out.
(h/t to David Post from Volokh Conspiracy again, for pointing me to this one.)
The case, with representation from Stanford's Center for Internet and Society, challenges a series of re-protections of works that were previously in the public domain, on the basis that such re-establishment of protection violates the First Amendment free speech rights.
The legal issue here is twofold: 1. What, if any, degree of First Amendment scrutiny is valid? One argument is that Eldred v. Ashcroft says that no First Amendment scrutiny is required - that all copyright extensions can pass muster without scrutiny. That, I think, is almost certainly wrong. The other side's argument is that any move that takes works out of the public domain is a speech restriction and thus subject to F.A. review.
That leads to the more interesting question: 2. What level of First Amendment scrutiny is to be applied, and do acts that place works back under copyright once they've gone into the public domain pass that level of scrutiny? This is a harder question to decide - I think we can all agree that changing the world such that you are no longer free, for example, to perform a particular work of art, is an impingement. If it's an impingement carried out by the Federal Government then I think it's pretty much a given that the First Amendment has to be taken into account. But even First Amendment guarantees are not absolute - there are a raft of exceptions carved out in various case laws.
Post writes, and I agree, that the present SCOTUS is unlikely to decide that placing public domain works back under copyright - whether by term extension or by international treaty as in this case - is sufficiently onerous as to rise to the level of prohibited restriction. But if they do agree that some level of First Amendment review is warranted that would be a small but important step forward. In particular, if Congress... I suppose I should say "when Congress" next decides to extend copyright terms, it would give us additional grounds on which to challenge such extensions
Under the heading "IP That Kills" I've visited this topic several times in the blog. Today we have two more entries on the sad roster of how we use intellectual property control regimes to kill people.
First, a story from ABC News on a sudden spike in the cost of preventing a premature birth. The company KV Pharmaceuticals just raised the price of a progesterone shot that has been successfully used for years to help women avoid premature birth, and the high risks to mother and child associated with this situation. The shot used to be USD 10 a pop; now it's $1,500 per dose, which comes to as much as $30,000 for a full term pregnancy. As you can imagine that's a substantial sum for someone who has low or no health insurance. Where ten bucks might be affordable for a lot of people, fifteen hundred out of pocket is not - even at reasonable income levels.
What makes this extra-special galling is that KV is not recouping any costs here. They didn't develop this treatment, didn't invest the hundreds of millions that some drug companies pour into the process of drug discovery and getting new treatments to market. No, instead the FDA just handed KV sole rights to produce the drug - that is, a legal government-protected monopoly. Patents give this sort of monopoly protection, presumably in return for the work done to invent a thing.
In this case, the work done to bring the shots to market was done back in the 1950s. Squibb used to make the shots but withdrew the product in 1999. Since then, availability has been spotty, but it's cheap and most women seem to have been able to get the supply they needed. The FDA's action was supposed to ensure a reliable supply of this life-saving medicine. Instead, their monopoly grant and KV's outright greed will end up killing people who cannot themselves, or whose insurance will not, pay the massive surcharges.
The issue Ng explores is government decision-making around the question of whether "a person's income should determine whether they live or die from something like HIV/AIDS." We're not talking about Canadians dying from HIV/AIDS - remember they have an excellent government-funded universal healthcare system. Instead, we're debating whether Canadian companies will be allowed to make and export cheaper generic versions of anti-HIV medications. This is exactly the issue I highlighted in my post from almost exactly a year ago, which itself pointed back almost exactly a year to the identical debate. Three years of the same battle being fought, and how many people have died?
Part of the reason we're still having this debate, and the heart of Ng's post, is that even though Canada tried to do the right thing - establish a regime under which the governmental monopoly grant of a patent could be modified - the resulting system was so complicated it was unusable. Canada's Access to Medicine Regime (CAMR) should provide a way out of the swamp - override or modify patent monopoly grants in cases of humanitarian need, without destroying the patent system entirely or capriciously. Unfortunately, it's too complicated and unworkable.
Which brings us back to C-393. It's what we software types call "a patch" meaning a code fix applied to make a system work the way it was intended. In this case the code being patched is the legal code, but the principle is the same. If C-393 becomes law no new abilities will be granted and nobody will get to do things that they couldn't under CAMR. According to Ng the target markets for these generics represent a "single digit percentage" of the drugs' sales, so the financial impact can be limited.
Unfortunately, it looks like C-393 isn't going to pass, either because of outright opposition or due to political maneuvering. And if it doesn't pass CAMR will continue to be bolluxed up and people will continue to die, needlessly.
People who told me I had nothing to worry about when Obama appointed a slew of Cartel lawyers to the DoJ should take some additional notice here. The US continues, under the guise of "trade agreements" to export its war on sharing, copying, and anything that challenges the Cartel's notion of control.
You may recall that the indefatigable Professor Michael Geist kept us informed around ACTA, the supposedly secret treaty that was the US's first attempt to impose a restrictive copyright regime overseas. Well, hat tip to him again, as Friday he posted a warning on the latest attempt by the US to export Cartel Jihad.
This round goes under the innocuous-sounding name of Trans Pacific Partnership (TPP) agreement. But what this treaty contains is far from innocuous - it's a blueprint for replicating every lock, control, takedown, and prohibition in US intellectual property law into the legal systems of countries around the Pacific rim. It attempts to turn ISPs into copyright cops, and to tell other countries what they can and cannot issue patents on. As Geist says: "The U.S. plan is everything it wanted in ACTA but didn't get."
This is nothing new, of course. An enormous amount of Renaissance art was sponsored by Medici and Borgia patrons; in China emperors sponsored artists at the same times as they were slaughtering peasants. The only thing different these days is that we get to criticize arts patrons while they're still alive and watch the artists squirm.
One interesting tidbit for those interested purely in the business side: according to the NPR story, even highly successful touring acts can get 10-20% of their revenue annually from these private shows, so it's not necessarily a trivial thing to say "just don't do private shows." This non-trivial amount makes it more challenging to argue that artists should retroactively return proceeds from events put on by scummy patrons. And while it may be a good-will or good-PR gesture to do so, it's not clear to me that the artists are any more responsible today than DaVinci was responsible back then.
The band Arcade Fire recently won a Grammy and, as they're not a big-name, mass-produced, Cartel-controlled act there was a good bit of whining from that contingent over it. Suck it up and deal. I particularly liked this response from Scott Rodger, the band's manager:
"Arcade Fire are now one of the biggest live acts in the world. It's not all about record sales. It's about making great records and it's about building a loyal fan base. Ther band make great albums, they're not a radio driven singles band. On top of that, they own their own masters and copyrights and are in complete control of their own destiny. Things couldn't be better.
In a way this is a story for my kind of nerds, but it's also an interesting story about creativity and control and why copyrights aren't always good things.
First some background for the newcomers: Firefly was a TV series shown starting in 2002 that never had that big of a following. It was a Joss Whedon 'cowboys in space' adventure that didn't achieve the massive following of his earlier Buffy and Angel series. As a result, it was canceled. Somehow, despite all that, a movie (Serenity) was made and delighted the show's fans. The making of that movie set the framework for a David (the fans, who call themselves browncoats) vs. Goliath (the big media companies) tale of struggle and eventual success.
Fox own the rights to Firefly and it's locked up in a vault somewhere. Nobody can make new Firefly material, despite the salivating fan base that want it. If you've ever been to the packed midnight showings of Serenity called "Can't Stop the Signal" you'd see how intense this fan community can be. And like most fan communities it doesn't want the story to end. It wants more stories, new material, and is willing to spend money on that.
So what? The fan base may be avid but it's not big enough to satisfy a corporate media giant. So the guy who starred in the series, Nathan Fillon, put out in a recent interview that if he had the money he'd buy it back from Fox and put the thing on the Internet. Presumably for free, but certainly more accessible to this fan base.
Maybe that's a stupid idea, if you're a major media corporate executive. Or maybe it's the most awesome idea for a crowdfunded project that has been heard in a while. Patrick Rothfuss, the author of Name of the Wind, thinks it's a worthwhile idea and he's offering to put the profits from his latest book behind the notion. And you know the fans were just waiting to jump on board this one.
Hibberd's EW story raises a couple of interesting points. One is that a handwave estimate of the rights' value is a lot less than the $300 million that Fillon guessed. But the big problem? Fox has no incentive to sell. They've got a property that's earning them some money without them having to lift a finger. Making new shows, movies, and so on? That costs money; that's risky. Their copyrights give them no incentive - or even a counter-incentive - to satisfying the fans' hunger for more and new material.
Which is sort of the opposite point of having copyrights in the first place. Copyrights are there to incent creation, not stifle it. I don't know if the Davids can overcome Goliath this time, but if they pass a hat around I'm throwing my money in again.
"May have been the losing side, still not convinced it was the wrong one."
A quick follow-up to my rant yesterday about the epically bad plan to allow one-sided seizures (hijackings) of domain names: TorrentFreak notes that the US Government just shut down 84,000 sites 'by mistake'. So, yeah, we should definitely pass a law saying that this is our policy for how to deal with illegal copying. Idiots.
First of all, as Post delightedly points out, Shakespeare lived, worked and died before the very first copyright law was ever passed. So, you know, without copyright laws we'd have... Shakespeare.
That bit of obfuscatory mis-history aside, the point of the Times column is to claim that the decline of things like traditional publication for books, newspapers, you name it is all due to illegal copying. Nothing is said about e-books, or about online publications, or about any of the myriad of causes a reasonable person might want to discuss in regard to the ongoing collapse of traditional publishing mechanisms.
Instead, what we get is defense of a bill that would create a legal pretext for silencing people that the Cartel doesn't like, without all that messy stuff about being able to defend oneself. It's just much simpler and more efficient if the authorities can be told to shut down sites that someone doesn't like. There's a nasty piece of indirection here since what's authorized in the bill isn't exactly silencing an individual - it's seizure of the domain name. The equivalent in the real world would be something like the authorities saying "We're not going to stop you talking - we'll just padlock all the doors from the outside and tell everyone you canceled your talk." Presumably some genius thinks this indirect approach doesn't raise First Amendment concerns.
Post's blog piece is itself passionate, making reference to the US's position as a "bulwark" of free expression and all that jazz. That's nice if passion is your thing, but I'm a pragmatist and pragmatically this bill is shite. As the attempts to keep Wikileaks dark have shown most recently you can't just grab a few domain names and expect that to be the end of it. Say it with me: the 'net treats censorship as damage and routes around it. Egypt tried to black out an entire country and failed.
If this plan really does go forward then there will be some serious questions raised about who owns domain names and to whom the DNS authorities must report. The US does not control (nor should it control) the world's DNS servers. If DNS servers in the US have a different idea of what the IP address is for a seized domain than DNS servers elsewhere it could be... interesting. In theory, DNS servers get their marching orders from the so-called "root" servers, which are supposed to be under the control of ICANN, which is supposed to be independent of national authorities. In practice the government has already carried out a few of these seizures and the ISPs have played along. If the ISP tells the DNS system that someone else now owns a domain there's little that anyone can do to dispute that.
Apparently Messrs Turow, Aiken, and Shapiro think it's just fine and dandy for ISPs to act as stooges for the US government. I wonder how they'll feel when the Chinese government decides that it owns domains and has its ISPs stealing away hosts that the Author's Guild cares about. Sauce for the goose, gentlemen. You are not going to like how this will go down.
If you read Boingboing, Make magazine, or any of the numerous "maker" blogs you know that 3D printing is one of the hottest new technologies being explored by folk who like to make their own stuff. People are 3D printing everything from whimsical art items to seriously functional tools, to experimental objects for use in things like teaching anatomy.
However, 3D printing, particularly of objects for things beyond personal use, raises a host of intellectual property questions. If you print a copy of an object, what rights do you have in that object? What rights are potentially infringed if your printed object is a copy of another object that is protected by copyright, trademark, or patent - particularly design patents that are supposed to cover expressive elements?
Public Knowledge's Michael Weinberg takes a serious look at some of these questions from the point of view of someone who believes in the liberating and disruptive effects of this technology.
He covers all three major forms of IP protection in common use today, at least superficially. This piece is not an in-depth study; rather, it's an introduction to the issues that we will almost certainly see being litigated in this decade. That said, I have to wonder if Weinberg's starting analogy is not the right one. He likens the spread of cheap (sub USD 1000) 3D printers to the spread of once-expensive homebrew computers to hobbyists in the 70s and early 80s but I think from an IP perspective that's not a big deal.
The analogy that comes to my mind is the advent of the cheap "office copier" - back when Xerox and its competitors brought the technology of photographic reproduction of paper into hundreds of thousands of businesses and libraries. The result was a massive wave of copying - including significantly infringing copying - that took almost two decades to get used to and develop practices around. My guess is that even though a 3D printer is more useful for original creation than a copier was we're likely to see a similar set of gyrations and adjustments.
I do foresee a day soon when 3D printers will become easy and cheap enough to have in every home - a really disruptive moment when you need a new stapler or a new kitchen knife and just push a button to make one - but we're not there yet. Weinberg's paper is a call to action to the current wave of 3D hobbyists to work together in anticipation of that day.
Unfortunately, as Duane describes in great detail in her blog entry, life happened. Duane spends a lot of her posting apologizing to readers and sharing a bit of her perspective on the experiment. The big take-away here is that this is not all that unusual. Books are big projects and a tremendous amount can happen between the time a book is conceived and its eventual completion or - more often - abandonment. This happens a tremendous amount of the time in the conventional-funding publishing industry (last Dangerous Visions, anyone?) so it should be no surprise that it happened in a book funded by micropayments.
The challenge here is how to deal when something like this happens and that is completely uncharted territory. My hat is off to Ms. Duane not just for attempting a project of this highly experimental nature, but for how she is handling its conclusion. As I wrote earlier this week, I am still deeply committed to the idea that artists need to get paid for making art, but we clearly need to figure out how to handle what the software industry calls "error and failure cases" as well as successes. When I teach my Intro to HCI course one of the assignments for the students is always to go online and find an NTSB or similar accident report and learn how the physical world deals with failure cases - lessons the virtual world is still painfully slow to learn.
Boingboing and Kottke both pointed to a piece on the99percent.com by Francis Ford Coppola. As you'd expect of someone with that long a career he has a lot to say, but for Copyfight purposes let's focus on his discussion of copying, which comes off his response to the question about developing one's own style.
He notes Balzac's happy response to learning that someone had copied Balzac's writing and talks about how people start by stealing (or copying, in the art world) from the masters. Balzac, and Coppola, clearly care more about their legacy than the money they make right now. Coppola finances all his films himself and makes his actual money in the wine business. From this he branches off to talk about how modern our system of directly compensating artists is, and says "who says artists have to make money?"
Now on the one hand I agree with him - our current models are a recent blip on the historical radar. And it's true that creative people can keep their day jobs to pay for doing art that they love. Coppola also points to the patron model but as I mentioned when discussing Interfictions I don't think the model scales very well.
The other problem I have with Coppola's idea of disconnecting cinema - or other arts - from the idea of making money is that the ability to make a living doing one's art has enormous advantages. For one thing, it lures people. We all benefit from there being more art and though there are plenty of creators who will continue to create even when they have no hope of making a living at it there will be excellent creative people of all sorts who will be disappointed, hindered, or actively discouraged from pursuing their art by an inability to make a living at it.
Even if they are not completely turned off, there is a great deal of art that cannot be made part time, after hours, outside a work schedule, or under constant interruption. Much great art comes from the ability of a creator to lock herself away for an extended period of time and really focus on the creative work. Creative work is hard work, too. One of the greatest legacies of President Kennedy was his recognition that arts are worthy of support in the national sphere and the creation of the National Endowment. We live richer lives as a result, though I can't point to hard statistics to back that assertion up.
And likewise, my gut feeling tells me that we cannot simply dismiss the idea of artists making money from their art, no matter how much I respect Coppola and what he has done/is doing.
Whether or not Guetta will also be able to work something out remains in doubt. As Bonner describes, the Guetta case differs from the Fairey one in some significant areas, not least of which is the fact that Fairey's poster made the photo he used iconic where Guetta has taken an already iconic photo (of the rap group Run DMC) and used it without any credit back to the original. The shooter of that original, Glen E. Friedman, happens to have worked with Fairey in the past but that's about all the connection there is.
Bonner also points out that Fairey made such substantial change to the original photo that even the AP photographer who took it didn't recognize his own work for months; Guetta's changes are much less significant, and they're being made to a photograph that has been used and sold on its own for years prior to its appropriation. It's a whole other ballgame from the Fair Use perspective, which is probably how it should be.
(Image: Sean Bonner from a Times of India video still.)
The SG is the person appointed to argue the government's side in cases before the US Supreme Court, as well as the usual level of supervision and direction of cases you'd see in a high-level appointment. The SG rarely sets policy but by virtue of how cases are argued and in which cases amicus briefs are filed, the SG can be a powerful voice for shaping policy.
If you know Verilli's name before now it's probably because of his involvement first in MGM v Grokster and most recently in the ludicrous battle by Viacom against YouTube. I'm not even going to mention his tangential involvement in the Jammie Thomas fiasco series.
While I'm sure Verilli will have plenty of matters to argue during his term in office besides intellectual property, I find myself incredulously wondering why Obama seems unable to find any worthy prosecutors outside the RIAA's dogpen to appoint. Surely the US legal community contains scholars and experienced attorneys willing and qualified to take on the top jobs in the DoJ. Far be it from me to suggest that these appointments could be influenced by such trivial matters as who is giving the most money to whom in which political campaigns.
I thought I had blogged about this case years ago when I first heard about the Canadian recording artists who had grown frustrated with trying to get their version of the Cartel to pay up on owed royalties. But I can't find it, nor can Google, so there you are.
This being a pre-trial settlement, of course, the Cartel haven't admitted to anything in the legal sense. It may be argued that they decided paying out CAD 45 million was cheaper than continuing to fight and stall. It was almost certainly cheaper than getting a guilty verdict in a court situation that might have exposed them to punitive damages.
Geist also notes that the settlement involves setting up a new system that will, one hopes, get the artists paid more promptly. And, one also hopes, without the need for a multi-year class-action lawsuit threat in the future.
A list that is a mere compilation is generally not copyrightable. However, various specialized lists can be copyrighted either by virtue of their arrangement (e.g. lists of court cases) or by virtue of their unusual content.
I had thought that the only copy of the List was at the Holocaust Museum in Israel. It turns out that another List had been found and the question at hand is whether the person in possession of that List may publish or sell it, or whether it rightfully belongs to Schindler's heir, as one of his possessions. The Court's decision turns on questions of different varieties of copyright law (common law vs federal) and whether any rights to publication carry with possession of the list, which it seems clear they do not.
This cartoon appeared early last year but someone just sent me the link so I figured I'd pass it on in case someone else hadn't seen it. It's the user experience, stupid!
The first item on the list is titled "DJ Breakdown" and it's a fan-created audio/video remix of Daft Punk's (themselves master remixers) soundtrack tune "Derezzed".
The war over ownership has moved to a new stage - creation becomes not just product but source material. In 2011 you will see more companies moving to co-opt, own, and control the remixers and the remix processes - even the Cartel will have to get involved. You'll continue to see ridiculous takedown notices and attempts to limit what people can do and see and hear. But these are rear-guard actions. The remix, the mash-up, are here to stay. Now the battle moves to who gets to make these on whose terms and what control is laid over the result.
Thanks to EFF Deep Links and Boingboing for pointing me at Jeff Price's 6-part series called "The State of The Music Industry & the Delegitimization of Artists". This is a great series of blog posts that ran in October and November looking at the state of the music industry - that is, the business of recording and selling recordings of music - and the state of the Cartel... erm, the big recording industry thingamawhatsis dinosaur what is in the process of dying out but is trampling all sorts of mammals to death in its thrashing throes.
In part 1, Price takes direct aim at the doom-and-gloom that is surrounding the Cartel, and notes that even if you use the extremely conservative Nielsen numbers, music purchases are up 50% in the period 2006-2009. These numbers are conservative because they don't account for a whole lot of ways that people get music these days, which is to say not as 'albums' packaged and promoted by the Cartel. That form? Doomed. Music itself? Alive and well. If this argument sounds familiar, it should: Marc Weidenbaum made this point back in May, though he did it artistically rather than by crunching the numbers.
I won't spoil the rest of Price's entry - you really should read the whole thing (there are links to the other parts at the bottom of part 1; for some reason the TOC at the top is not hot-linked). But I did want to call attention to another important part of his data:
"More musicians are making money off their music now then at any point in history [and] the amount of money going into the artist's pocket has increased."
Put that in your pipes and smoke it, you crack-headed "piracy will bankrupt artists" types. Over and over again the data have come out against you, but like the Birthers and the Global Warming Deniers you just keep at it. Not that I think any of you read this blog, but really, you ought to be ashamed of yourselves.
As a generous interpretation I can say that you have confused your own profits and antiquated business models with what you're supposed to be in business for, which is helping artists get known, be heard, make a living, and get paid for their art. I have freely confessed that I don't have any prescriptive solutions to the problems. At best I can point to experiments in patronage models, crowdsourcing, remixing, and free-sells-more that are going on right now. If Price is right, then maybe we're starting to accumulate some evidence that these models - a thousand flowers blooming - are starting to work.
I read a lot of financial blogs and such as part of my day job, and I happened to notice this in the footer of an ft.com (Financial Times) article:
Copyright The Financial Times Limited 2010. You may share using our article tools. Please don't cut articles from FT.com and redistribute by email or post to the web.
Below that text are a set of links to let you twitter, dig, stumbleupon, etc the column. At least 10 different methods, all one-click options. And the copyright statement itself is pretty straight-up: distribute, link, share, but please don't steal.
In contrast to certain paywall isolationism it's a breath of fresh air to see a mainstream media outlet take a more sensible posture.
Back in June of last year, the Cartel appeared to think that getting a huge jury award against Jammie Thomas (now Thomas-Rasset) wasn't necessarily a great thing. They were willing to take USD 25,000 in order to get Judge Michael Davis to vacate his judgment that the original award was "monstrous and shocking".
So far Thomas-Rasset has refused all settlement offers (to my admitted surprise) and the case has yet to reach a higher court level where the overarching constitutional and precedential matters would be considered. The issues raised in 2009 are still hanging out there.
Steven Musil reports for CNET that the latest award, of 1.5 million will also be appealed. It will be interesting to see if the Cartel continue to make settlement offers of pennies (or hundredths of pennies) on the dollar, in order to avoid arguing the case before higher courts.
This is an actual problem I have, and I've been unable to figure out a good answer to it, so I turn to you, my readers, for pointers and advice.
Some time ago, I made an audio recording of an author reading her own book. The recording was made with the author's knowledge and (verbal) permission. At the time, no audio version of the book existed. Since then, the book has been reprinted and an audio version of the reprint is now being sold.
Question: is my recording of her reading more like a performance recording, or more like an audio book? I don't think I can (nor do I plan to) sell copies of my recording, but I have considered putting it online for others to share. I suspect I'd be violating some copyright or other law if I did so, but I'm horribly unclear on the relationship of recordings-of-live-performances versus staged recordings such as audio books.
At this point it looks like all the major browser-makers will support this proposal either in current or near-future releases, and since the proposal comes from W3C it's likely to be completely compatible with the CSS rendering standards that browsers also support. In order to promote further compatibility, WOFF positions itself as a container (envelope, or wrapper) that can be put around the currently standard TrueType, OpenType and Open Font Format fonts. This means that existing fonts can be folded into the system with relatively little extra work, and the browser-makers don't have to write whole new decoders to handle WOFF-compliant font files.
In order to limit unwanted sharing, the WOFF spec says that the user agents (browsers, commonly) that implement the WOFF standard should not pull the fonts from other sites, unless explicitly allowed, and should not make the pulled font available to other programs on the end user's computer. That's slightly inefficient but probably the minimal compromise necessary to help font designers/publishers feel that they can trust their wishes will be respected.
As a matter of technology it's trivially true that a specification and plain-text metadata aren't strong protection. However, this practice follows the social conventions and customs used in things like Creative Commons licenses and given that it is in the interest of both the browser makers and most Web content designers to see this succeed I believe this is the right approach. It's much more important to make it easy for the good guys to do the right thing than to divert resources to stopping bad guys from doing the wrong things.
The Globe and Mail has coverage of the issue, noting that there seem to be an increasing number of hoops for government scientists to jump through if they want to talk about their work to the media. The fear, of course, is that the intention behind all these new rules is to move away from science-based policy making. This is presumably because the science doesn't support the pet policies of those in power.
I've been a big supporter of direct-to-the-public science publication for as long as it has been available. More science available to more people is hands-down a good thing. So bravo to the Canadians here and let's hope more people take advantage of the work that - at base - their tax money was used to create.
But then again, he'd need it to hold that much tongue. Except holding his tongue has never been his strong suit, has it.
The ex-KISS bassist has managed to get himself a personal Google headline
"Make sure your brand is protected," ... "Make sure there are no incursions. Be litigious. Sue everybody. Take their homes, their cars. Don't let anybody cross that line"
Audrey Waters noted for ReadWriteWeb that this is part of Anonymous' campaign targeting some of the most litigious "pay up or else" sites. Simmons' bluster about calling in the FBI and tracking down these crackers notwithstanding I get the feeling that this is really a tempest in a teapot.
Rich aged white rock dude makes stupid copyright lawsuit remarks, annoys people. See Metallica over in that old corner? Simmons can go sit with them. I don't expect any of them to catch on to the fact that suing your customers sucks as a marketing plan.
A notice of filing an amicus brief from the EFF reminded me that I had also meant to blog about Vernor v Autodesk, another crucial case that has received far too little mass-media press attention.
Technically the issue at the heart of the three-judge opinion issued last month is a technical point of copyright law. Practically, though, you could write a headline that screams "Decision threatens eBay, GameStop, and thousands of other used-product businesses." Bet that would get some attention.
OK, let's take it one step at a time. The basic idea, which has long been held to be valid copyright law, is that the legal buyer of a copyrighted product may resell that product within certain limitations. For example, I can't claim that a resold product is mine or otherwise commit fraud, but in general the legal sale of a legally bought copyrighted work is... well, legal.
Or it was until some software marketing weenie got the brilliant idea to stick a shrink-wrap/click-through license agreement on a pile of bits and claim that you didn't actually buy that program you think you bought. You're just leasing it. And since you're not a legal buyer you don't have the rights of a buyer, including the right to resell.
It will surprise approximately no one that the software makers and the MPAA all sided with Autodesk in this case. Ebay and the American Library Association sided with the defense. And, as I mentioned at the start, the EFF has asked for an en banc hearing on the issue.
The sad part is that once again the software makers are failing to understand their audience. People who buy used do so because they can't afford the full price of something. Even if it was possible shut down the entire legal resale marketplace (which it's not) the fact that someone can't find a legal resale copy is not going to make them suddenly able to afford the product in the first place. What will instead happen is that people will find something they can afford. Torrents are still free, last time I looked.
There's another interesting sidebar to this, which is that SCOTUS is set to consider a case this term - Costco v Omega - in which the question at issue is whether the fact that a product was created overseas has any bearing on the applicability of first sale doctrine.
This past weekend I attended the Media Lab's 25th anniversary celebration, which was great fun. Lego is a big sponsor of the Lab, and that reminded me I've been meaning to write about this.
Greg Aharonian had a nice follow-up piece in PATNEWS noting that Lego also owns a number of related US design patents that might similarly be at risk. The challenge in understanding how this might fall out is in distinguishing 'ornamental' from 'functional' elements. For example, in a Lego brick the distinctive round pieces on top are ornamentation on a basic brick shape, but they're also key to the block's functionality as they are the part that plugs into the base of other bricks. In theory design patents are used to protect nonfunctional ornamentation - often called aesthetics or decoration. But in the Lego brick, separating ornament and function isn't so straightforward.
Rachel Gordon, in an Intellectual Property Brief posting for Washington College of Law, points out that Lego has been moving to protect its brand trademark, by working to separate the word "Lego" from the generic "plastic brick with studs on top." But this isn't going to help them recover their brick trademark, nor does it help with the question raised about the functional/aesthetic fuzziness.
Unfortunately, news stories on the topic have been nonexistent in the past month; anyone got any insights?
Long-time Copyfight reader Eric Anderson has been working for years on the history of copyright within the U.S. with a particular focus on the 19th century. He recently sent me a note to let everyone know that he's put his book Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891 up on archive.org under a Creative Commons license that makes it free for non-commercial use.
On a personal note, Eric mentioned that he's left academia and we wish him well in all his future endeavors.
...but that's OK. This is the conclusion of a long essay in The Binary Bonsai blog. The blog has extensive source material but the gist is that the visual representation of the character we saw on-screen as Chewbacca in 1976 was taken quite directly from an illustration for a George R R Martin story that was published the previous year.
This is an age-old debate that periodically pops up in this blog as well: if we're going to protect the creations of artists and others it's important to understand the sources and methods that go into those creations. Do I think Lucas and his film team "stole" Chewbacca and should be punished? No, of course not. But I do think they should be more up-front about the ways in which their creations are based off the work of others, and be a lot less hostile to the derivative works created by fans and others who've taken from the film's material, in much the way that Ralph McQuarrie did.
Microsoft caught in bed with the Russian FSB; this stuff just can't be made up. The NY Times reported this weekend that Russian authorities are making bogus raids on NGOs. The supposed purpose of these raids is to find pirated copies of Microsoft software and NGOs are reporting their computers are seized and not returned. Of course, anyone who can search the Web knows that Russia is a haven for copiers of all sorts and you can just as easily find copies of Microsoft products on .ru Web sites as you can find copies of movies and MP3s of music.
None of that seems to bother the authorities, somehow. Instead, according to Cliff Levy's article, the Russians have made "dozens of similar raids against outspoken advocacy groups or opposition newspapers." Suspicious much?
Microsoft comes in for criticism is that it has apparently known about this for months and done nothing. Levy further notes that human rights groups in Russia have been trying for months to get Microsoft to act. According to self-proclaimed cyber-cynic Steven J. Vaughan-Nichols in ComputerWorld, Microsoft has even gone so far as to provide information to support the police actions, though Microsoft claims those are just local lawyers it hired and apparently failed to supervise adequately.
It seems that the light of publicity is finally spurring action, though. Today's update to the story comes from Fred Weir at the Christian Science Monitor: Microsoft is offering, essentially, a shield license for journalists and NGOs. These organizations and individuals would be able to have free legally licensed copies of Microsoft products, which would end any IP-related pretext for the police raids. In addition, Microsoft are supposed to be setting up a legal assistance program to help NGOs who have already lost their computers prove that they had legal licenses to the Microsoft software on the machines.
In a sense, this is a "better late than never" kind of sad story. It's also a lesson in how real journalism can spur public outcry that can still move mega-corporations to action. As we watch the disintegration of the 20th century modes of creating and distributing investigative journalistic work, let's try to figure out how we can hold onto the good stuff, like Levy's story.
Rice also touches on the issue raised by Vallet in his response to Copyfight, which was the vast gap between the billions of dollars that would be needed to manufacture any RUTF and the actual dollars that are delivered to Nutriset and its franchises to do actual manufacturing. There are continuing accusations of anti-competitive behavior, and as with any business it's hard to break in where one company totally dominates the market.
For me the most interesting thread in Rice's story isn't well developed, but it's in there. In effect Rice and the people he interviews are suggesting that the real solution is not an either/or proposition but some combination of three contributors: commercial development, charitable work, and grants by major aid agencies and governments. The big unknown is who or what would coordinate such an effort.
Cory's latest Publisher's Weekly column describes his most recent round of struggles around publishing his latest book online. In particular, he's trying to get the book available without extra DRM attached, and to have an electronic copy sold under the same terms and conditions as are attached to a sale of a physical book.
"Any time someone puts a lock on something that belongs to you, and won't give you a key, they're not doing it for your benefit."
That's sort of obvious but apparently not something people at Apple and Sony agree with, as they're the two publishers Doctorow calls out for being unwilling to cooperate with his plans. As always, his books are available for free download elsewhere anyway, so it's really unclear to me what those companies think they're protecting.
As you can guess from the title and my interest, the topic of the book includes ownership of things that have come to be called intellectual property. In particular, Hyde's book is portrayed as a plea to protect our "cultural patrimony" (*cough*sexistmuch?*cough*) from "appropriation by commercial interests."
I'm sorry, guys, but that ship sailed a long time ago. I don't know whether you want to mark the passage of the Mickey Mouse Protection Act, the enactment of the DMCA, or MGM v Grokster as the important milestone - or even something else. The point is still that we've moved from the realm of public sharing of common heritage into a realm where everyone thinks it's natural for big corporate interests to own our genomes, our family histories, and every bloody other thing they can lay their hands upon.
From an academic perspective it's nice that Hyde can go as far back as the Middle Ages, and tie a belief in a thriving public sphere to the American founding fathers. But practically speaking? Who cares. The Cartel are not patriots - the only use they have for nations is as enforcement arms for their control regimes. Appeals to the lofty principles of dead intellectuals is just chaff in the wind.
If we're going to make arguments from history, which I think we should, then it's essential to point out the historical pragmatics - what did it mean for intellectual property to be shared as it was then, and what are we losing by locking it up now?
I suppose it's worth noting that I left academia for roughly these reasons, many years ago. I like good research and the challenge of connecting the dots within the vast streams of knowledge and discovery of the as-yet-unknown. But I also want to see those dots connected to practice, pragmatics, and with a clear relationship to today's reality.
For this project, Vautier took every frame of the film Blade Runner and laid them out on a vast plane. He then made his own short film by moving a virtual camera over this plane of images so you can see certain frames of the film, but mostly get abstract color and movement impressions. The film has a soundtrack taken from Blade Runner's score and dialog but I found that it had much more of the feel of 2001.
The work is labeled a tribute but of course it's also a derivative work and probably a massive copyright violation as it uses the images and sounds of the original. But trust me, nobody's going to mistake this for a rip-off of Blade Runner.
As part of my music listening I came across Sunday Girl, covering the old Laura Branigan song "Self Control." And there on her MySpace page is an open invitation - want to remix? Here, have a free download of the a capella version. Like so many other artists out there, her biggest problem isn't worry that someone will do something bad with her music; it's worrying that nobody will notice her music in the first place. If you want to get noticed in music today, get yourself remixed.
A story in the New York Times from earlier this week examines the challenges of defining and educating around plagiarism for remix-culture youth. Trip Gabriel's story notes that what we might call inadvertent plagiarism is on the rise - students copy material that has no obvious author and don't feel they've done anything wrong.
An interesting point about this is that it's not another "copying is bad" story; it's a hint that we as a society may be moving to a different social model of authorship. The vast majority of plagiarism still is done by people who know it's wrong and who ought to know better, and to have been trained better. But there's also the sense, put forward in this story by ethnographer Susan Blum of Notre Dame, that some people are copying in texts in much the same way as they mash up, or in the way that songs and television shows reference each other. The standards for ownership and credit may be seen differently and students may not feel that what they're quoting is attributable material. After all, who is the author of a Wikipedia article?
Boingboing's Xeni Jardin was on the Rachel Maddow show earlier this week making an interesting point. Xeni suggests we look past Wikileaks itself to the question of who owns secrets. She and guest host Chris Hayes discuss the idea that this is a transformative moment similar to the mass emergence of Napster for music sharing, or BitTorrent for movies/games/software/television.
The discussion is clearly going to continue and I have yet to figure out exactly what I think about it. I personally find it fascinating that the Obama administration is having conniptions where the UK government's response is something along the lines of "meh." There's clearly a form of power involved here that isn't involved in P2P networks that share entertainment content. Government secrets and ownership of information represent a strong form of control, but haven't we argued for years that the Copyright Wars are really control wars? Control over peoples' opinions, actions, opportunities? Maybe Xeni is right and they are of the same ilk.
In yesterday's post about the 5th Circuit decision, I noted that most other courts have not agreed with this interpretation of the DMCA. Well, that may be about to change largely due to the strenuous efforts of the EFF and its allies in pushing the US Copyright Office and the Librarian of Congress.
"jailbreaking" a cellphone - freeing a phone from being locked into a particular carrier or a specific app supplier (actually one new exemption and a renewal of an existing one).
remixing short clips from copyrighted DVDs; for example, for use in personal videos such as those people post to YouTube or educational displays in places like classrooms.
This is a big deal, and a bit of good news in the Copyright Wars and EFF is to be commended for continuing to work on restoring these rights to consumers.
I cannot resist reminding readers that the EFF is a volunteer organization supported by donations. On that press release page are links for folk who want to help out the EFF by donating directly or indirectly by buying their swag. I still have my very first EFF shirt, bought in 1990.
Over the weekend both Slashdot and Boingboing pointed to a story about GE and the DMCA. Formally, the case is known as MGE UPS Systems Inc. v. GE Consumer and Industrial Inc. What drew the blogs' attention was that in this case a 3-judge panel of the 5th circuit has ruled that using a hacked security key to get access to a work is not itself a violation of the DMCA. That's a pretty surprising outcome since it runs counter to the way the DMCA has generally been interpreted.
On the face of it, contrary interpretations of a law are usually a good reason for the Supreme Court to grant cert, reviewing the case(s) and the law on which the Circuits disagree. For that to happen, the ruling would have to be appealed to the 5th en ban and if upheld at that level could then be appealed to SCOTUS. So there's still a ways to go on that front.
The decision seems to hinge in part on a distinction between access and copying. In particular, GE claims that the dongle it cracked didn't stop copying from happening - it just blocked access. The 5th definitely agreed that GE was enjoined from copying or using illegally copied software and trade secrets; GE did not contest that the software was a copyrighted work, and the fine against it was upheld. But the Circuit panel found that the original decision for MGE was in error because it accepted too broad a meaning of "access". The key sentence highlighted in the Courthouse News report is this:
"The owner's technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing."
That's extremely significant because, as Cory noted in his post, legal access and viewing is something that one might want to do in, say, one's own home with one's own material but cannot do because of DRM locks that are applied by DVD makers, iPad software, or any number of audio-book publishers.
It will be interesting to see where this case goes. Given that the monetary damages against GE were upheld, MGE has little motive to appeal in defense of an abstract principle of law.
The SFLC, chaired by Eben Moglen, is an advocacy organization for free/open software. In this case they're arguing that the closed proprietary software of IMD - implanted medical devices - is another instance of IP can kill. They have a raft of scary statistics on product recalls of IMDs and note that although the hardware parts of these devices are regulated and tested by the FDA the brains - the software that controls the device - is not only not tested, it's not testable. It's an opaque black box that exists and is distributed, revised, and updated (or not) at the manufacturer's whim. If the manufacturer goes bankrupt or leaves the medical device field the code goes with it.
This puts patients in a place where they either have to trust these manufacturers literally with their lives, or turn down potentially life-saving treatments. SFLC argue that this is not an acceptable position and that the code as well as the hardware should be subject to review, to recall, and ideally to replacement with open source that could be inspected, debugged, and maintained by those who care the most about it.
Which is, you know, an admirable idea. And also approximately as likely as my suddenly sprouting a prehensile tail. What's far more likely is that there will be a bug, and someone - or many someones will die. There will be lengthy court proceedings - made more difficult because in 2008 the US Supreme Court (in a case known as Riegel v. Medtronic, Inc.) prohibited patients harmed by defects in FDA-approved devices from seeking damages against manufacturers in state court and also eliminated product liability lawsuits against manufacturers of approved devices. However, state suits are not the only possible avenue.
As usually happens with these things if the outcry gets big enough then Congress will feel compelled to act, but neither the courts nor Congress are big fans of open source software. The solution will probably be more FDA oversight or something along those lines. In this sense the SFLC paper does a good job of highlighting a potential danger but a poor job of sketching out how we might address such dangers.
The Copyright Clearance Center sent out a blurb announcing that they've upgraded their Rightslink tool, a set of software and services that is designed to help creators figure out what they want to license, to whom, and on what basis. There are a variety of tools that creators need if they're going to get their content out inside of a for-pay infrastructure. I'm not in the business of promoting one tool over another but I'm happy to list resources and encourage users to share their experiences.
Why? Well, it seems that Mr. Williams is at best uninformed and at worst... um, I think the word is lying about what Creative Commons does. It seems to have started with a tweet from Mike Rugnetta. He got a fund-raising missive from ASCAP and posted a picture of it.
In the letter, ASCAP asks for money to fight organizations like CC, EFF, and Public Knowledge that, it claims, are trying to undermine "our" copyrights. Oh really? This isn't the first time ASCAP has misrepresented what CC does, as Lessig points out in his response on The Huffington Post. Sadly, Lessig isn't calling for pistols at dawn (dueling is illegal in the US, if you get right down to it) and his challenge is entirely too gentle.
But it's there, and you can read it. I doubt Paul Williams will read it, and I doubt he'll respond. It's not that I think Paul Williams is right - it's that he cannot possibly win this debate and he'd be a fool to get into it. He doesn't want to hand CC or EFF or Lessig any more free publicity.
Which is where I, and I hope you dear readers, will help out. Publicity for this kind of thing is really the best response. Respond to lies by stating the truth; respond to confusion with clarity; respond to uncertainty with understanding. And just in case you get the chance? Slap Williams across the cheek with a white glove. Do it for me.
I generally love reading Nate Anderson's work on ars technica. He covers many areas of interest to this blog including ongoing IP cases and new business practices in content areas.
What Anderson's piece points out is that ACTA is going through this ridiculous cycle of secret negotiation followed immediately by leaked copies of the drafts. The leaked copies draw fire from all quarters and the negotiators hunker down again behind closed doors for another round, as if somehow their latest deliberations would remain behind those doors. It's not always clear who is leaking the drafts or why, but it is clear that both the parties involved in the negotiations as well as the excluded players are unhappy about it. Libertarian and pro-Copyfight bloggers are also screaming mad about the treaty's provisions and process. Cory has been dogging the story at boingboing for months.
So, what's the point here? What is so important that the US has to blackmail other countries in an effort to keep the process secret? I don't get it. The entire thing is degenerating into a farce, as Anderson highlights. So far that farce hasn't really penetrated the mainstream media but if this keeps up I can't see any way for the treaty to get approved. You would think the US had learned something from the backlash that arose against the healthcare reform legislation's secret back-room deals. Apparently not.
(In the spirit of helping out businesses trying new models I should note that ars is offering "ars premier" with "insider access" to its content, live chats with the editors and industry people it interviews, etc. I'm not yet a subscriber myself but if anyone has experience with this or similar subscriptions I'd be interested in hearing from you.)
Ray Beckerman of Recording Industry vs The People offers up a sarcastic handful of statistics in yesterday's blog post. Drawing together a bunch of numbers published by p2pnet, Beckerman points out that the RIAA has recovered about two cents for every dollar spent on lawyer fees to sue its customers. Actually the numbers are probably worse, but the point remains the same - whatever the Cartel thinks it's doing with its jihad against consumers, making money is not on the agenda.
Unless you're a Cartell lawyer, I guess.
(Aside: I apologize for misspelling Joel Tenenbaum's name in my Monday post. The error has been fixed.)
It's true that the two are often inextricably linked. Authors, for example, are famously assumed to believe things they have their characters say or advocate. And the recent mess Mel Gibson has made of himself clearly shows how creators' images affect our view of their created works.
Sanford looks briefly at the attempts by author Harlan Ellison and musician Prince to dissociate themselves from the Net. Neither of these men is J. D. Salinger but I'm reminded of Salinger's desire to cut himself off by these men's ongoing attempt to snub the Internet. Ellison is a famously cranky individual (best headline: "Harlan Ellison files lawsuit, In other news, sun rises") so it's not all that surprising he would try to tell an entire technology - not to mention social infrastructure - to F off. I used to think Prince was more hip, though.
Anderson's article discusses the similarities and key differences between this situation and the Jammie Thomas case, in which the damages were also reduced but through a different legal strategy. That case is going back around again, and you can bet the RIAA isn't going to sit still for this slap. Tenenbaum maintains he doesn't have even the reduced amount but that's not the point. The RIAA are out for their pound of flesh and will certainly appeal.
What you have there is a real musician, Lenny Kravitz, coming unexpectedly on a group of people performing his music ("Fly Away"). So what does a real musician do? He doesn't ask about if they have the right to play this music - he listens, he claps, he jams with them, sings with them, and generally delights the audience as well as the performers.
If you wanted evidence that Weidenbaum was right, here it is. This is what musicians do; this is how music is made and loved and passed on. Uptight Cartel executives take notice, please.
There was a video (now sadly removed by a copyright violation notice from the BBC) that showed Dizzee Rascal joined by Florence of Florence and the Machine live on stage at the Glastonbury Festival that just concluded. Musicians join each other on stage all the time - nothing new here, just going to cover one of their songs with the other artist guesting in, right?
No, sorry. That's not remix culture. Instead what they did was perform a live version of "You Got The Dirty Love" - a remix. I hope that the fan video of the event stays available. It's terrible quality, but as it's from the audience point of view you can clearly tell a few things. For one thing, the audience goes absolutely bananas once they hear what's going on. For another, a large chunk of the audience are singing along, which means they've heard the remix. Certainly you can find enough copies of it posted on YouTube and elsewhere if you want to check.
Let's trace the loop here - two popular artists release tracks, separately. A remix artist takes those tracks and mashes them together. The mash is released and gets popular with fans. The original artists know about the mix and know its hooks, beats, and lyric exchanges well enough to be able to perform it live. The fans are ecstatic to see performers they love playing together and being knowledgeable enough, and hip enough to perform a mash-up for them.
That, ladies and gentlemen? That's remix culture, right there live on the big stage in front of tens of thousands of screaming fans. And you know what else? Fuck copyright. The remix is probably a copyright violation. Posting it all over the Web is probably violating more copyrights. The artists performing it are probably violating the remixer's copyrights, if he has any. It doesn't matter, though. The question is irrelevant.
Now, to be fair, this didn't happen by random chance and it's not just any artists who are doing this sort of thing. Dizzee in particular has been out on tour for several months with The Young Punx backing him up. The Punx have not only spun for Dizzee but they've done live mashes within his performances, playing backing instruments doing such songs as Nirvana's famous "Smells Like Teen Spirit" while Dizzee does his raps a capella over the backing band.
In this specific case the track "You Got The Dirty Love" was created by the Punx in cooperation with Dizee and Florence. You can read their blog entry at APC for the details - the track is available on iTunes with the proceeds going to charity.
A post last week on the Android developers blog from Rich Cannings (Android Security Lead) gives a clue how they plan to operate: with more caution, in cooperation with developers, but still clearly in control. Like it or not, the Android is not a wide-open free-for-all space.
You can read the post yourself for details, but the gist is that they found two useless apps that were masquerading as something else. The developers then agreed to remove the apps from the Marketplace and Android exercised what it called a "remote application removal feature" to de-install any remaining copies of the apps from users' phones.
In this case the applications were free, so the people who had them removed were not out any money. I assume that Android would refund money spent for a pay app it removed in this way; regardless, though, the message is still clear: Android owns this environment.
Well now comes today's entry by Michael Geist in his blog, reporting on an apparent attempt to cover up those remarks. Moore denies making them and (as of now) the official version of the video doesn't show him making them. Am I the one hallucinating here?
Well, maybe not. According to Geist, "IT World Canada reporter Brian Jackson compiled his own video of the event" and that video shows the remarks. Here, go watch the video and judge for yourself: http://video.itworldcanada.com/?bcpid=7044989001&bctid=101481423001
You won't have to watch for long. At 0:38 into the video, Minister Moore starts in on "radical extremists." So, Minister, what do you call people who lie and suppress the truth about their own past remarks? (If you're American, you call them "our former president" but that's beside the point.)
Cory reminds us that he is a well-published Canadian author, one of those whose life and livelihood ought to be improved by these copyright reforms. Instead, going point by point, Doctorow dissects Moore's pro-industry position and shows how the only ones who are going to get richer from these so-called reforms are the corporate purveyors of certain technologies. Authors will get poorer and and readers will get less useful experiences.
Now, who exactly is Moore working for? If it's not authors, and it's not readers the Minister has some explaining to do and, as Cory points out, he owes more than a few people an apology.
It's really not clear what his problem is, except that he seems to think that these "radical extremists" oppose any change in copyright law. Well, um, maybe that's because the changes are bad? You know, just maybe. And really, Minister Moore, we're not talking about people leaving bombs in SUVs in Times Square here. We're talking about academics (like Geist) who have spent a lot of time and effort researching the issues. They may be wrong. You can certainly disagree on the issues and their merits - after all, that's what academic debate is supposed to be about.
But it seems pretty seriously out of bounds for a government minister to be giving speeches painting academics and scholars with the broad brush of "radical extremism". In addition, as Geist points out in his blog entry, the Minister's position is that one should oppose and attack these "extremists" which also seems contrary to how a government ought to act in regard to citizens with differing opinions. We've had too much of the Cartel making war on ordinary people in the past decade; there's absolutely no call for governments to act like that.
(Having just watched the US beat Algeria in the World Cup I was tempted to title this post "James Moore Gets a Red Card" but really the refereeing in that game was so bad I didn't want to be associated with it.)
For those new to this story, Groklaw - and Pamela Jones - have been dogging SCO for years, laying out in fairly painstaking terms all the weaknesses in the case and arguing that judgment should go the way it has now gone - in favor of Novell. PJ, as she's commonly called, has some paralegal training and has called bullshit on more than a few statements, filings, and other fully legally certified at the bar issuances in this case. So if she's feeling a wee bit justified this month, I can't say I blame her.
I, personally, would like to see SCO die in a fire for all the expense, FUD and general heartache they brought to the free and open source community, but there's probably not enough left of the company to burn.
India's statement (called an "intervention" at the WTO) shows that it has broad-reaching concerns, not least of which is that even though it was excluded from the treaty, it (and other non-party nations) could be expected to enforce ACTA provisions. This would imperil legitimate Indian businesses and the rights of people in that country. India's opposition is no small thing - it is a major growing economy with political and economic influence of its own. In addition, Geist hypothesizes that India is not just speaking for itself here, but also front-running for a coalition of countries that have been excluded from the ACTA process and are feeling threatened by it.
As I've noted before, this is the generational change we've come to. The kids in Glee's high school reproduce, co-opt, adapt, remix, and produce derivative works. In their fantasy world they get to upload stuff to YouTube and become viral heroes. If they put this stuff out on P2P networks in the real world they'd get sued for hundreds of thousands of dollars in statutory damages. But since it's on a network show the whole issue is glossed over.
And you know what? It should be. The urge to share may or may not underlie what has happened but it's inarguable that the generational change has happened.
I don't particularly like Glee-the-show (musicals give me hives, what can I say) but to the extent that they're accurately representing the way today's high schoolers view remix and appropriation my hat is off to them.
Most of the article is about the effort to fight botters and scalpers but the key Copyfight issue here turns around whether or not you have the legal right to resell your ticket. In the era of physical tickets you could usually sell a ticket for what you paid for it even in the states that had anti-scalping laws. However, taking a cue from airlines who have effectively prevented the resale of plane tickets, venue ticket sellers now require identity papers with admission via paperless ticket, which pretty effectively prevents even legal transfers of the ticket.
This is a pretty standard story in the Copyright Wars - attempts to prevent illegal activity lead to restrictions on legal activity and the consumers end up screwed.
I have what I consider to be a very loose policy on what I'll accept for comments. Opinions are not censored and I certainly have no problem with people telling me I'm wrong. If you want to advertise your event or publication, please send me a mail and I'll look at it.
That said, if you are going to leave a comment it should be related to the subject matter of the post, or the issues raised by the post or of concern to the blog and its readers. I interpret intellectual property pretty liberally, and I'm often concerned with the related areas such as business policy and social implications.
Please don't use the comments area to promote your product, service, book, blog, all-singing, all-dancing whatever. Thank you.
According to Geist, India is seeking allies to help it block at least the portions of ACTA that could allow seizures of shipments in transit. This would impact India, a major producer of generic medicines, as it tries to ship those medicines to third-world countries. The recipient countries, in many cases, depend on these generics to keep their people alive.
From all I've read about ACTA it's a bad deal for pretty much everyone except the big intellectual property monopolies and should probably be scrapped. Any time a treaty negotiation has to depend on secrecy and subterfuge you can pretty much bet it's a bad deal for the average person. However, scrapping ACTA still won't address the underlying problems. Copyright, patent, and other IP regimes around the world remain inconsistent, massively outdated, and increasingly lopsidedly tilted against the people who actually make and use the items that are supposed to be protected.
In the blog entry from March, Richard Fink points out some clear evidence that Typekit either isn't working as designed or is putting up misleading copyright information. Fink uses the word "fraud" but in the comment back and forth with Typekit's Jeffrey Veen, Fink admits that he may be guilty of unnecessary hyperbole. Veen's defense, that he (and Typekit) don't know how to write licenses and so may be guilty of bad wording at worst, may be true but seems like sloppy work. Is there no one at Creative Commons or other organization that could help out here?
One other tech link I saw in Fink's post is worth surfacing here: The League of Moveable Type, an organization dedicated to the production and distribution of free and open fonts for use on the Web and elsewhere.
Byrne's blog post notes that he has always maintained a no-ad use (though I seem to recall him appearing in some non-US ads possibly without Talking Heads music) and makes the point that the use of a person's music may imply some kind of endorsement. Ironically, Byrne notes that when McCain got sued by Jackson Browne part of the settlement (McCain lost) was an agreement by the RNC to obtain licenses in the future. I guess Crist forgot about that part of upholding law and order.
According to a piece in Billboard magazine on the suit, Byrne has retained the same attorney who represented Browne and who presumably was part of those settlement negotiations. Byrne is asking for USD 1 million in damages, a symbolic amount to be sure, but (again, according to Billboard) it's representative of the amounts Byrne has been offered in the past for use of his material.
If the Cartel had any soul at all it would be filing amicus briefs on Byrne's behalf. But I'm not holding my breath.
This video, called "Walking On Eggshells: Borrowing Culture in the Remix Age" is a documentary produced as a final project for a Yale course titled "Intellectual Property in the Digital Age". In the documentary, the three student filmmakers interview a variety of creative types (artists, writers, and lawyers) and muse on the society and technology of the remix. In a way it's a paean to the art form, and it's also a plea to the forces of the Cartel please to leave this form be, to let it nurture and grow.
Everyone in the film seems quite aware that remixing is appropriation and appropriation is at best questioned and at worst punished. And yet, it's what they do. It's what's expected. It is, as I've said before, the culture of the next generation. It's the background assumption. The only question to be answered is how long will people like this have to walk on eggshells before the law and business learn to adapt to this mode of doing and treat it with cooperation rather than trying to exterminate it. The "mystique of authorship" is not just unnecessary, it's counterproductive.
But as Virginia Heffernan explains in a New York Times Magazine piece from last month, the size and quantity of self-published material is now more than double that produced by traditional (big) publishing houses. And the trend strongly favors the self-publishers, with a 180%+ rise in volume produced year-over-year while the big guys are down another fraction. Vanity it may be, but it's gotten cheap enough, easy enough, and dare we hope popular enough that it can be done by anyone with something to say.
The question now is whether the self-publishing industry will be a victim of its own success. One of the things that publication from a major house gets you is at least some level of review and editing, which people take as at least a first-order measure of quality. What will become the markers for quality in self-publishing? Every social media site has some kind of populist like/rate system but how useful is that?
...even if the (current) music industry dies the death it seems so richly to deserve. So assures us Marc Weidenbaum , publisher of the online electronic 'zine Disquiet. Normally, Disquiet only has things to say about its musical topics, which are primarily ambient and electronic music.
However, in the May issue of The Atlantic, editor Megan McArdle took to task the current generation of "freeloaders", complaining that "...a generation of file-sharers is ruining the future of entertainment." Are we, now? Responding to the news that last year was yet another dismal year for the recording portion of the Cartel, McArdle recites figures that lament the aging of the music acts that pull in big bucks. She's apparently completely unaware of the club scene, the DJ scene, the remix scene or - frankly - anything that someone under 30 would consider modern, new, interesting music.
It's true that if your concert tickets are $200 each then you're not going to get a lot of young people at your shows. But really is that something wrong with the audience, or with your ticket price? It seems that McArdle is confusing a couple of different concepts here.
Weidenbaum points out another fundamental contradiction in the piece - the conflation of "the music industry" with "musicians." And to point out that contradiction he wrote a response and commissioned something very much like a musical (ambient) score to go along with that response. He asked ambient musicians to riff on the illustration that accompanied the Atlantic piece (which itself might have been technically a copyright violation) and then he goes to town on McArdle.
I'm reminded of Bruce Sterling's 2002 remark about the "Four Horsemen of the Infocalypse." Child pornography is a universally reviled evil; no one can be in favor of it. Therefore, you just need to link the thing you think is bad (file sharing) somehow to child porn and presto you taint that thing with the same scourge. Assuming, of course, that your audience is gullible. Or morons. Or both, which is apparently what the Cartel thinks of its audience.
Now she's written a blog post about why you can't get Sita via Netflix. It comes down to DRM. She wants her movie distributed DRM-free and Netflix won't make an exception, even for her free movie. Netflix also won't make a policy exception to let her insert a message before the movie pointing to where people can get it for free. So it won't appear on Netflix and Paley will pass up the revenue she'd get from the distribution deal. Just another brick in the wall.
(Oh, and she takes a swipe at the "everything-DRM" iPad so you might want not to read that, iPad lovers. Actually, I'm sure I've ticked them all off and they're not reading this blog anymore, but you know just in case I figured I'd give fair warning.)
In effect, the argument goes, the patents form a roadblock that impedes both useful commerce and necessary research. This argument runs in parallel to their more fundamental argument that genes - as naturally occurring sequences - are not patentable inventions. Given the disastrous state of current law and practice on what is and is not patentable, I think it's wise to make both arguments since any attempt to apply what would seem to be common-sense logic to our current patenting practices seems guaranteed to produce only stress and gray hair.
As to my own point of view, I think Stiglitz's economic arguments are important and moderately persuasive. I have not read the extensive evidence submitted in the case but I'm willing to believe that the plaintiffs made a convincing economic case, which undercuts the "patents are a necessary incentive" argument I've believed in the past.
Boingboing pointed to this video called "When Copyright Goes Bad", a 14-minute discussion of what's gone wrong in the copyright wars at this point. Fred Von Lohmann features heavily, as do a few other Copyfight heros like Michael Geist, who points out that probably the entirety of remix culture is based on a natural human tendency to want to share. If you assume that people are, on average, good and generous then it should not be surprising that they want to share what they have, that they want to show off what they've made, and to mix it up with their friends.
Special speaking point props to Hank Shocklee, listed as one of the "founders" of Public Enemy but also well known as a hip-hop producer in his own right as part of the Bomb Squad. Shocklee hammers on the point that I wish more people would engage with - the evolution of a workable copyright system will be impossible without the informed engagement of the consumer. The Cartel's model is so wrong because it treats the consumer so badly - as a criminal, as someone to be scared into obedience, as a spigot from which every possible penny must be wrung regardless of how bad an experience comes from the interaction.
This is an example of what I meant when I said I disagreed with Cory on whether or not a negotiated peace is possible with the Cartel. The radical difference in views on how people ought to be treated makes it impossible, in my view, to find negotiable ground. (In Cory's defense I should say that he has extensive experience negotiating with publishers for things like the rights to make available DRM-free electronic versions of his books and I do grant that the Cartel are not wholly monolithic.)
Unlike, apparently, most Copyfighters, I've never thought a negotiated peace was possible. The Cartel just thinks too differently, and has wholly incompatible motives, for a negotiated solution. There are only three possible outcomes - subjugation that will kill off the subjugated technology (RIP DAT), the death of the Cartel dinosaurs (RIP pretty much every retail music outlet, half the major labels, most newspapers and on and on), and the outcome that gives me the most hope, which is the growth of a new generation that views this fight as uninteresting and irrelevant. That generation will rip, mix, and share because it's what they've always done.
The laws and regulations, the FUD, the technological shenanigans can make it harder but you cannot sue, scare, or legislate culture out of existence. Not if you're the Chinese government and not if you're the Cartel. Change the kids and you own the future.
In Which Dear Fred Shows Himself A Hopeless Optimist
The Copyright Clearance Center recently posted a podcast containing its interview with the EFF's Fred Von Lohmann in which (they claim) he expresses confident that that in 5 - 10 years, the kinks in copyright law will all be worked out. Considering that it took 12 years to go from smashing Napster to... um, smashing all of Napster's imitators I'm not so confident.
Rémi Vallet, who gives his URL as Nutriset's site in France, responded at length to my call for engaging the moral dimension of intellectual property issues. He doesn't list himself as a spokesperson for the company nor give any title he might hold with them, so I can't actually say it's an official response, but he does raise points that I felt were worthy of bring up to the front page rather than being behind a comment link. (ETA: In a private email Vallet identifies himself as Responsable de la communication / Communications Manager for Nutriset so I think we can take his response as representing the company)
First, he corrects my misapprehension that Nutriset is not licensing its product. There is a (PDF) link to a description of a network of manufacturers and licensees, though I am somewhat confused as to what it means for the company to license its product in a country where it does not hold a patent. Still, that's a minor issue.
The heart of the question seems to be what qualifies as 'demand' or possibly what we might refer to as 'need.' From Vallet's point of view, the "demand is by far insufficient to meet the needs of the 20 to 26 millions children suffering from severe acute malnutrition." Here "demand" is synonymous with "people asking to buy our product" whereas someone else might say that these children's hunger constitutes a demand. Currently, according to Vallet, production of all RUTFs is about 60k metric tons, which doesn't come close to feeding those 20+ million children. The cost of taking up the full-scale project is certainly in the billions; Vallet quotes a World Bank estimate of USD 12.5 billion annually.
That scale of expenditure is clearly beyond the means of any but the largest corporations or charitable agencies. One might then conclude that Nutriset's patent is not a major obstacle in solving this problem - which would be true but almost wholly beside the point, insofar as one wants to engage with the question of whether patents on these sorts of products are in the general good or not. Nutriset's patent is just one example of a license that has moral implication.
The core notion of a patent is a grant of monopoly rights in exchange for some form of betterment, usually of the society or country that grants the patent monopoly. From a pragmatic point of view, as I've written before, we also need to consider the cost/risk/profit equation of the patent holders. Even though the US Constitution and other patent laws do not frame their grants in terms of profit, if we expect the market system to produce these life-saving products then we have to ask hard questions, such as "Is Nutriset's patent impeding production and distribution of life-saving foods?" and "If so, what is the proper remedy?" or "If not, to what extent are we comfortable allowing private commercial entities to claim exclusive rights?"
Vallet links to another PDF, a UN policy brief on "Scaling Up Nutrition" that, while laying out the problems and costs in fairly stark terms does not even mention the words "patent" or "intellectual property." I'm sure it's good that Nutriset endorses this framework, but that's necessarily going to help work through the tough questions around IP and life-saving.
Maybe I was wrong to say that what Apple wants to do is what the Cartel has wanted for a while. Maybe Apple is just fulfilling Boss Tweed's desire to shut those damned cartoonists up.
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But for now you can just spend 40 minutes watching the recording of his keynote from the PublicACTA conference in Wellington, New Zealand. The slides are dull and the topic is complex but Geist has been dogging this issue for years and he knows the history and the problems with this trying-to-be-secret IP agreement in the making.
(h/t to boingboing where I first saw this linked and which has done a very good job of tracking this complicated and secretive monster for months.)
This time it's not just medicine. At the end of last year, a couple of US non-profits filed a challenge to US patent No. 6,346,284 which describes a food product currently marketed as "Plumpy'nut." Despite the cute name, the product has a serious use - it is what is called an RUTF, a ready-to-use therapeutic food. Because Plumpy'nut requires no water to reconstitute and has a safe shelf life over over two years even in harsh conditions, the food is considered ideal for relief of severe malnutrition in areas without some basic infrastructure such as clean water or easy access to refrigeration. According to WHO, malnutrition is the cause of half of all child deaths worldwide, so this is serious business.
The IP issue - as in the case of medicines - revolves around the patent. The company holding this patent does not license it, so it is not possible to produce the food equivalent of generics. There's also some question about whether the patent itself is over-broad, which is a convenient hook on which to hang a suit but misses the issue I think is important.
A BBC story from last week indicates that the patent holders, a French company called Nutriset, are well aware of the moral dimensions involved. They argue that "No child in the world has even been denied access to the product as a result of the patent issue" which may or may not be true, but at least it goes straight to the heart of the concern. It is acknowledged by both sides that there is more demand for RUTFs than Nutriset is currently meeting, but simply making more bars isn't always the only factor in a solution.
For example, a TimesOnline story from last August describes how India blocked the use of Plumpy'nut, in part due to concerns over safety and in part due to concerns over whether an imported foreign product should be used to solve a problem that Indian authorities seem to believe should be solvable with local products. Again, this is (in my opinion) much more on the point than debates about which countries do or do not recognize the US patent.
Nutriset is making similar arguments, saying that they'd be happy to ramp up production but funding and systems of distribution are lacking. I'd love to see those arguments engaged directly - what compensation (funding) should Nutriset get for its product? Who should pay? Would a compulsory local manufacture-under-license program both provide adequate profit to the company and also address national governments' concerns about local solutions?
Intellectual property doesn't always have moral dimensions, but when it does they can be life-or-death and there needs to be a much more serious engagement with those dimensions in order to shape a coherent global IP regime.
I was undecided then and I remain undecided. The situation gets unpleasantly complex. First off, there's a question as to whether one ought to allow patenting of so-called natural sequences (genes, typically) or other things that come about without deliberate action or intervention. I'm not a patent lawyer, but even here I'm of two minds. I'd like to think that for-profit enterprises ought not to be rewarded simply for being first to file a sequence isolated from a creature or compound that has existed for hundreds of years - what's the invention here anyway?
But there are situations where the sequence is unknown and most essentially the relationship of the sequence to causation and effect in the macroscopic world is unknown. The science of discovering that is largely driven by profit motives - you find things like mutations or genetic markers in order to develop diagnostic tests or curative agents. Unless we give sufficient protection to the people and companies engaged in this research they may not be motivated to invest the millions the research requires. So what's the alternative to permitting patents on (gene) sequences?
Second, is there a threshold case here? Breast cancer is unpleasant at best and if untreated can lead to other cancers, major side effects, and even death. That said, a predictive genetic test for it is definitely a First World concern. The predictive test may be better than other methods, but does it pass the threshold that I feel anti-retroviral medicines for AIDS pass? I'm not sure.
Third, the ethical consequences of patents on genes are poorly understood (at best). We really don't know what it's going to mean for society to give monopoly powers over creatures and bits of our own bodies to commercial entities. The fact that this case has arisen over a situation as personal and deeply affecting as breast cancer is probably not a coincidence.
Finally, is the practice of gene isolation an important and necessary part of the process? Is that sufficient to create a patentable product or is it, as the NY Times story notes, merely a "lawyer's trick." The root problem here is that the patent system is increasingly divorced from our growing understanding of science (h/t to Greg Aharonian of PATNEWS who has been hammering on this issue for years). If patent examiners could be properly trained in the science of the area in which they're issuing patents, and if the patent law supported clear statements of the scientific principles underlying patents, then we'd be in a better position to judge this - or at least a competent scientist would be.
As with most of these big thoughts I have far more questions than answers. I do expect this case to be appealed and probably overturned on appeal, but that won't make the fundamental issues go away.
Produce a totally locked platform, with no legal way to download or produce your own content, modify it, claim ownership of anything on it, be totally dependent on the Father for every droplet of updating? Cartel's wet dream, and Steve Jobs has made it real. Cory's preaching to the choir, but he sings it so well.
Periodically I've enjoyed pointing out that the Cartel, in attempting to sell a product (digital music) that is now available for free, faces much the same dilemma as the soda companies faced when they created the demand for bottled water. After all, most of us get essentially all the high-quality water we want for next to nothing, so why are we so hooked on paying thousands of times as much for the stuff in bottles?
Well, the answer isn't particularly pretty for the bottled water people, either, as you can see at "The Story of Bottled Water." So for all you Cartel types out there... sorry, I'll try to come up with a better analogy for how you might compete with a high-priced product against one that's not quite as good, but cheaper. I hear FedEx is still turning a profit these days, where the USPS isn't...
On the one hand, it's very clear to me that profit potential and protection for discoveries is a crucial part of the reward system that encourages businesses to take the (often large) financial risks necessary to find, test, and develop new medicines. On the other, there's a serious moral case to be made that the pursuit of profit should not always or automatically trump the needs of people whose lives are at risk.
Today brings another reminder (almost a year to the day after my last post on this topic) that the dilemma is far from resolved. MSF published a response in the New York Times to an op ed piece. In their response, they argue that the potentially increased intellectual property protection in proposed health care legislation would slow or block the development of generic versions of key drugs. Again.
It's sad that this many years on we still don't have a good national (or even international) regime for helping both sides. Companies need good markets and a way to recoup their costs. People need existing life-saving medicines, and new innovations brought to production as quickly as safety allows. These don't seem like incompatible goals, to me.
(Full disclosure: I'm a financial donor to MSF and friends of mine have done volunteer work for them.)
One of the music blogs I really enjoy reading is Audioporn Central. APC's Simon Iddol is not only a remixer but he's a zealous poster and he seems to know everyone in the European DJ/remix scene.
Today they've announced a remix competition, in which the readership is given a set of song "seeds" and encouraged to make their own mixes from these seeds. You then have until April 28 to upload your entry to Soundcloud for judging, and the winner gets a spot on a special EP featuring remixes by some moderately well-known names in the industry. Since this EP is likely to get dropped in dance clubs all across the continent it's a nice way to give someone who may be unknown a leg up into the scene.
The notion of a sustainable business model built around "give away something and entice people to buy more" isn't new. It's something of a variant on the "give away razors in order to sell blades" idea that the shaving people, and the game console people, and the desktop printer people, etc have all used. However, unlike those models where the bit you get for free is essentially useless without the additional stuff you buy, this model is one of giving away something that is useful in and of itself, and then building on that with added content.
I'm reminded of my recent experience with the Steam gaming system. Steam's desktop client is free and it lets you easily hook in non-Steam games. But it also serves as an ad platform for Steam-supplied games, some of which are offered at very low or even free prices. I got one such game and enjoyed playing it enough to put down $10 twice on DLC (downloadable content) modules for it. In addition, I've now used the Steam search/ad engine to find another cheap ($10) game that I'm planning to try out and if I like it I'll probably throw more money at it.
My informal browsing shows that game companies are doing more and more with free demo versions of games. You give people the experience, get them interested, have them invest some time in making some progress and then see if they're willing to pay money to go further. It's an interesting model and one that might be profitably adopted in other industries.
A friend just pointed me to Kim Boekbinder's attempt to do the same thing with her latest album. The project, called "The Impossible Girl", has a preview song and status page up on Bandcamp on which she notes that the album is intended to be funded entirely by pre-orders. It's not clear what happens after that - possibly an attempt to shop the album around to the major labels for larger-scale production. Boekbinder's sound and style aren't exactly mainstream pop/rock but neither is her style that different from a hundred other solo female artists who have been mainstream-produced.
This idea has been kicking around the net for at least a couple years. I found three sites/companies that are trying to organize this sort of effort, or at least provide a little framework scaffolding for new unsigned artists, and I'm certain there are many more out there: SellABand, Slice The Pie, and ArtistShare. Each of these three has a slightly different model and each provides different services. Of course, these services want some bit of the funding in order to pay for what they provide. Several of them also offer ways for people to invest in the artist, and potentially make revenue on future sales or advertising around the product they've invested in.
None of them have the kind of clout, either in marketing power or established fan base, that Blizzard has. That struggle to be noticed may well be fatal to an effort like this, which depends on getting the word to the people who care and have cash. Maybe that situation suggests that a big name can buy/build/partner their way into this space and by doing so bring in the number of viewers who would be necessary to get more of these artists produced and turn music on demand into a profitable business line.
Instead, I want to direct your attention north of the border (and hope that at least someone in Ontario reads this and will respond). The Globe and Mail has a nice write-up on the new Tino Sehgal exhibit at the Art Gallery of Ontario. The exhibit (if it can properly be called that) is titled "Kiss" and consists of seven male-female couples who, over the course of two hours, recreate famous kisses from well-known pieces of Western art.
What makes this Copyfight-interesting is the language and restrictions around it. First, part of the agreements around the exhibition include no photography or other recording. Either you're there to see it, or you're not. Fine, and much like many other performance pieces.
But the way The Globe And Mail describes the transfer of the intellectual property around this fascinates me. The AGO "bought" (whatever that means, probably paid money for) "an edition of" (which I take to mean secured the rights to perform/display) Kiss. Apparently other big-name museums have "bought" this piece, which again strikes me as very odd language. If you're buying a copy, then you get some rights in that copy by virtue of the purchase, no? And if your rights terminate after some time (or some number of performances) then aren't you renting rather than buying?
And if it's an edition of, does that mean it can run concurrently with other editions? (Edition is also a weird word - makes it sound like a reprinting of a book.) Or does it just mean that you get some rights to change it, such as selecting which actors will be in it? Or maybe you get more substantive rights, such as the right to change what kisses are enacted, or how long the enactments take place?
The whole thing strikes me as odd - if they'd used the language typically seen around other ephemeral art, such as musical performances or theatrical offerings, I might find it less weird. But, really, what does it mean to treat something like this as a piece of art that is on exhibition at a museum?
I got a very nice comment from Vincent Chandler of Slush Pile Reader, on the topic of the death of the slush pile and wanted to point those of you who are interested in self-publication to his site.
Slush Pile Reader is a (still in beta) publisher that provides editing, publication, distribution, and promotion services for submitted books - a slush pile, in effect. The twist here is that those books SPR will publish will not be selected by an editorial staff, but rather will be those that the site's readership have voted as books they'd like to see published.
Authors who want to see their books published through SPR have to be willing to have those books out on the net for anyone to read. SPR allows completely free anonymous reading. In order to vote, though, you must register with the site (also free) and registering also lets you see material that the submitting authors want to mark as 'adult' or otherwise age-restrict. Authors also will retain their rights in non-published manuscripts. As with a print-based publisher, the manuscript will be in the publisher's hands for a certain period and if not selected for publication will then be 'returned' to the author who is free to submit it elsewhere.
Unlike some other publishers, SPR does not plan to charge authors anything up front for books it chooses to publish. Again following the model of traditional print houses, SPR's chosen manuscripts will get the author a contract that will cover terms such as royalties and other payments that may be due to the author.
Overall, this is such a small deviation from the traditional small-press publishing model that I'm at a loss to see how it can be any more profitable than those small presses. By relying on a voting system, SPR is hedging its own bets on which titles it chooses to publish but those are still very similar bets to those made by publishing houses who rely on the insights and discerning tastes of their editorial staff.
SPR is a neat idea and I'd love to see them succeed but I don't see them as the saviors of the slushpile.
A nice piece on EFF Deeplinks yesterday by Tim Jones noting how the IFPI caused Blogger to delete six music blogs. Included in the killing was the blog "I Rock Cleveland" whose author had meticulously followed all the rules for getting permission to post or link to the music he discussed. As Cory points out on boingboing the message here is "Don't bother following the rules; even if you jump through all our hoops we'll still nuke you on a whim."
Grothendieck's work was originally published in 20 now out-of-print volumes from Springer-Verlag. Unfortunately, the demand for these works in the specialist mathematical community far exceeds the size of the supply of original printed volumes that remain. No problem, this is the Net age, and indeed a Dutch mathematics professor, Bas Edixhoven, had organized a crowdsourced effort to retype the works with proper mathematical symbols, typo corrections and so on.
All of which came to a screeching halt on receipt of a letter from Grothendieck himself that, while not threatening legal action, insisted that all such efforts cease. Grothendieck appears to hold the copyrights but his objections are not commercial. According to Landsburg (who admits he is also guessing) it has to do with the old man's unhappiness with how his works have been used since their publication.
ETA: the comments on the blog post contain several links with more information and a rough translation of the letter, if you're interested in more details.
(Full disclosure: Landsburg and I are casual friends and occasional verbal sparring partners. Neither of us makes any money from our blogs, though of course he makes money if you buy his book of the same name.)
I haven't posted anything in the long slog over the Google Books deal since last November. People do still send me pointers, which I appreciate, but I just haven't found any of them interesting enough. This story on CNET (by Elinor Mills) caught my eye, given that this is the new Cartel-owned DOJ we're talking about here.
They appear to be standing behind the Bush-era filings from last September opposing key parts of the settlement between Google and the Authors Guild/Association of America Publishers, and in opposition to the modified agreement filed last November (see in-depth analysis at those links above). The next step seems to be all sides waiting for the judge in the case to read the DOJ's filings along with the other supporting and opposed commentary and amicus briefs - after which presumably the settlement will be approved or sent back for further negotiation. My money is on the latter - we're far from done with this one.
Boingboing pointed to a very interesting YouTube video on "The Evolution of Remix Culture". The video is, in lovely recursive fashion, also something of a mash-up of previous videos. In a short eight minutes, the author identifies a generational change in how remixes are being used.
First generation remixes involved the appropriation of pop culture material for the creation of new work, as has been done since oral storytellers sat around a fire listening to each others' tales and improving on them. Second generation remixes, the argument goes, are "social" remixes, in that the purpose of the remix isn't just to create a new work but to provide a response in a conversation or other interchange. Social media sites such as YouTube facilitate this by providing things like video response links as well as by popularizing user-created content across thousands (or more) of likely respondents.
This is nice, but not particularly revolutionary. What gets added here is that the creation of the remix itself performs social functions. People choose which video they want to remake for themselves - check out the vast number of groups of people redoing Michael Jackson's "Thriller" video, for example. And in the way they stage their own productions they're also making statements about themselves and often their own locales and local social networks. It's not a hugely revelatory thing for someone (or a group of someones) to say "Yes, we're like them" for some particular them depicted in pop media. What's new is that this statement becomes embedded in a conversation and also itself becomes fodder for further remixing by others down the conversational line.
In about the last 1:30 of the piece, the author (called "Normative" according to boingboing) touches on some of the copyright problems that influence this kind of thing. And, shockingly, he identifies control as the central issue. No, really, I did not pay him to say that. The Copyright Wars that have waged for the past 12 years or so really are about control, over expression, over technology, and ultimately over the shape of the culture in which we live.
I continue to be bored and frustrated by the grinding, trench warfare-like nature of the conflict these days. But videos like this give me hope that precisely because the war has ground on so long we may see it end. We've raised up a generation that sees its self-expression as intimately tied to the appropriation and reuse of... well, everything. Remix culture has become normative culture and trying to suppress that is just patently doomed to fail.
If you don't like modern music you're probably going to hate a good chunk of what I blog about this year. I may create a new category tag so people can find or skip these as they wish. However, I think that modern dance music, particularly the mash-up, is one of the most Copyfight-challenging and lively art forms out there. And since it has hit the mainstream media, finally, I expect to see more public culture clashes over it this year.
Today I'd like to introduce you to DJ Earworm, one of the less prolific and most brilliant mash-up artists I've found. He's worked with some original artists, taking tracks directly from their studio masters and creating new pieces from them.
For the past few years he has created a year-end "top of the pops" mix using the Billboard Magazine list of top 25 songs. This past year's "United State of Pop 2009 (Blame It On The Pop)" has gone seriously viral on YouTube, with over 10 million hits last time I checked. That kind of popular spread gets you noticed, and got DJ Earworm a story on CNN, who seem to think that mash-ups are fair use. I highly doubt EMI or any other record label would agree.
That all aside, and even if you don't like pop music or mash-ups, I highly recommend viewing the color-coded lyrics sheet that Earworm has posted on his site to accompany the mix. In this post he shows exactly which songs he snipped lyrics from, down to the level of the individual word. I particularly love his use of five different sources for "...you're tumbling down down down (down down)".
The notion that DJ/remixers are just blindly copying or reusing without innovation is just flat-out wrong. Apprentices may copy without much added skill, much as apprentice painters sit and copy masterwork paintings for hours on end to learn their craft. But as they learn they also learn to add their own creative elements and styles, producing new works that are based on the source material in the way so many art forms of past decades have done.
And what the heck, go ahead and push the play button. It's an AWESOME mix.
The state of magazine publication is the suck these days. You can read it anywhere - the magazines themselves are smaller, printed on cheaper paper, and so full to bursting with ads that you get barely any content. This is in large part because the single-issue and subscription prices do not cover the costs of print publication and newsstand distribution. So many unsold magazines end up as pulp it's a shame and an environmental mess.
Bucking this trend comes the first issue of the official World of Warcraft magazine. They claim it's "...more like a softcover book" than a typical magazine these days. There are no ads, it's printed on high quality paper, you can't get it from a newsstand distributors, and it's designed as a collectible item for people who love the game.
And the cover price reflects it. At USD 10 for a 148-page zine it's more expensive than most trade paperback books and certainly more than any magazine I could find scanning the extensive shelves in Harvard Square (not counting some very pricey tech journals). Because the magazine only sells to subscribers, the publishers are pretty much guaranteed that every copy they print will be sold. I imagine they have some free issues that are going to be sent to review sites, but those are probably negligible compared to the copies that will be snapped up by the millions of WoW fans.
This is, in essence, the patronage model of publication, which we've discussed in the past. The people with the money (game fans) pay to have works of art made for them. Mass distribution here happens because the game is so hugely popular that printing a magazine for subscribers only makes sense. If you were to do this with a less-popular subject matter you'd have to charge each patron/subscriber a higher price per issue.
In the past, I've made the comparison of copyright laws and speeding laws. If you go faster than the posted limit you're breaking the law. Likewise you may be breaking the law by copying or sharing copyrighted materials. Doing either can get you a chat with the cops and some hefty fines.
Yet, the fact remains that most people speed. Some people are really egregious dangerous hotheads. But the vast majority of speeders are not those people - they're just folk who are making an estimate of the safe speed they can achieve, what the prevailing traffic is doing, and driving accordingly. Speed limits be damned.
Likewise, there are some really egregious copyright violators - factories in China that pump out millions of unauthorized DVDs. But most people are casual copyright violators, because they're engaged in activities that seem safe and sensible, such as loaning books to each other. What's necessary is a copyright enforcement regime that recognizes not all copyright violations are the same, and doesn't try to pile on ridiculous fines for sharing a few songs in the absurd hope that this will induce social behavioral change.
He goes on to give several examples of things that, applying a common sense test, would seem to be OK even though they might be thought of as commercial (e.g. mailing a copy of an interesting technical article to your boss). I definitely could quibble with some of his examples and I imagine many readers could as well. This is both on and off the point. It's off the point in that the specific examples don't necessarily matter if you buy into the principles behind them. It's on the point, though, in that what may seem like "common sense" to one of us may not be a shared idea of common sense to all. And "common sense" evolves, often faster than the law can change to catch up.
What's needed, I think, is a way to go beyond the simple phrase of "common sense" and to talk about what that might mean and how it would change. At base, though, I think we all agree that overly rigid copyright regimes serve nobody's interest.
Good hackers who love books and evil librarians, really, but that's too long for a post subject.
In response to this morning's posting on the silliness inherent in trying to breed panic over people reading other peoples' (e)books, someone pointed me to this statistic from O'Reilly: their e-book sales for 2009 were up 104%. What makes that an interesting number is that they took all the DRM off their books about a year and a half ago.
Clearly somebody is doing something right here and maybe the book publishers should be paying more attention to this than to scary reports.
You see, the publishers are starting to scare themselves again with the specter of "online book piracy," based on a study by Attributor, a company whose product I reviewed a couple years ago. As I noted, Attributor believes that its technology to track where copies go is superior to DRM technologies that attempt to prevent copies from going anywhere in the first place.
As reported in Publisher's Weekly, online copying is "pervasive" and may be "costing" publishers USD 3 billion. Those are some scary-sounding statistics, right? But what behaviors do they actually describe?
Well, as Hellman points out in excellently sarcastic tones, the behavior is that of reading a book you didn't buy. Shocking, I know! Someone buys a book and someone else reads it! Quick, call the cops and arrest those people who are, y'know, doing what libraries do.
Hellman's back-of-the-envelope calculation is that library lending could be "costing" publishers over 100 billion, per year, based on the roughly two billion books that are lent out by libraries in the US on an annual basis. Shockingly, these institutions also lend out CDs and DVDs, too. Goodness knows how much this terrible practice costs the Cartel!
In the letter, OK Go admit that they don't control their videos on YouTube, EMI does. Even though the band makes its own vids, EMI is fronting them money for the production and taking ownership of the result. As a result of EMI's deal with YouTube, EMI doesn't get paid if you embed a YouTube vid, so EMI turns that off. Because we all know how important those fractions of a penny are to this quarter's bottom line...
To the band's credit, they seem to understand quite well the position that everyone is in, including themselves, the labels, and the fans. There aren't any magic solutions here - as Copyfight has been arguing for years, we need new and better business models that keep creative people fed and productive. If big record labels happen to die along the way we won't be shedding any tears. Nor, it seems, will OK Go, who provide the embed code on their blog page for the Vimeo version of their video, and these words of wisdom:
EMI won't let us let you embed our YouTube videos. It's a decision that bums us out. We've argued with them a lot about it, but we also understand why they're doing it. They’re aware that their rules make it harder for people to watch and share our videos, but, while our duty is to our music and our fans, theirs is to their shareholders, and they believe they’re doing the right thing.
(The "slush pile" is the name given to the unsolicited and unagented manuscripts that are submitted by authors directly to publishers, movie studios, etc. without the assistance of someone like a literary agent. Usually slush pile authors are unknowns hoping to break through.)
Boingboing pointed to a response by Seth Fischer on Rumpus in which he more or less admits that nobody's going to get published out of the slush pile - though he himself still sends in unsolicited manuscripts. Instead, he argues, authors should consider self-publishing. Considering that the Copyfight entry on CreateSpace, a self-publish-on-demand offering still continues to garner comments and feedback 2+ years after I posted it, I would say that this is a more viable option than people might initially assume.
It's easy to say that mash-ups have been around forever. For at least the last 15 years popular club dance music has featured DJs who use various technologies such as turntables, mixers, and effects boxes to produce sounds using two or more original recordings. Like many "underground" pop phenomena, the mash-up has escaped its original scene and been incorporated into everything from television shows to console games. Lately, even such staid journalistic entities as the Wall Street Journal have taken notice of mash-ups.
Those three links go back to Bootie Blog, one of the past decade's biggest champions of the mash-up. Their dance parties have been hits in cities all over the world and they've joined the ranks of online music bloggers promoting the mash-up art form. Each year they produce a "Best of Bootie..." CD featuring their choices of the best mash-ups of the preceding year. (I don't always agree with their tastes, but that's beside the point.)
This year, their CD drew the attention of EMI Entertainment, which objected to the inclusion of "Nirgaga" a mash-up by DJ Lobsterdust of the recent pop hit "Poker Face" and Nirvana's classic "Smells Like Teen Spirit." (By the way, the track is still available lots of places on the Web; do your own searching.) According to EFF, DJ Lobsterdust was also served with a DMCA takedown notice for this track.
As Bootie rightly point out, the Nirvana track has been mashed all over the place so it's particularly odd to see EMI going after just this one track. Perhaps this is the start of yet another misguided attempt by the Cartel to control the evolution of music. Or maybe they just don't like seeing themselves talked about that way in the WSJ.
I'm sure all of my readers have been reading plenty about the disaster in Haiti. If you're in a position to make some kind of donation to help out, please do so. Every relief expert I've heard talking in the past few days says there is a desperate need for simple cash, which can be used by organizations that already have infrastructure in place to get the most needed supplies to the people who are in the direst need in the shortest amount of time.
My personal choice for donations is MSF/Doctors without Borders. But there are a lot of good people doing their best work in this crisis and you can choose one that meets with your philosophies and practices I'm sure.
Along the way, please be careful of scammers. There are a lot of new Web sites and organizations springing up and sadly some of them are just plain old rip-off artists. If you are unsure of how your money will be used you can visit some third-party rating sites like Charity Navigator that will attempt to give you guidance on charitable organizations based on parsing their income/expense statements, tax-exempt status filings, and so on.
Marshal McLuhan is a famous media theorist; among his best-known aphorisms is the notion that "the medium is the message." How does that apply to pop hit band OK, Go? Well, it's like this...
Back in 2006, OK Go were just your average unknown 4-guy pop band. Then they released a video onto YouTube and it went viral. Suddenly their song was getting attention, airplay, and the band was made men.
McLuhan's essential message is that the medium influences how the message is received. So if you're the now-popular band OK Go you should just put your new video out on YouTube and presto it'll go viral. Right? Wrong. The problem is that the band's new video is locked up in a foolish copyright-grasping box.
As reported on fan blogs like station.newteevee, the video both can't be viewed in non-US countries (which is to say YouTube is blocking large ranges of IP addresses) and the Google subdivision has blocked all attempts to embed the video. Which is to say not only is the medium not part of the message now - since embedding is such a key part of the YouTube experience - the band is also sending large chunks of its potential fan base a "we don't want to show this to you" message, if they happen to be accessing things from the wrong IP address space.
But wait, there's more. In a move pretty much guaranteed to piss off anyone who's not a trufan, OK Go have put out a plaintive "why aren't we popular anymore" video. As NewTeeVee points out, it comes across as blaming the fans for not watching the video when in many cases they can't and even where they can, they can't embed it so it will be seen by other fans.
Dear OK Go: The medium really is the message. Putting locks and chains on the medium changes it, and therefore changes your message. Like it, fix it, or leave. - Marshal
According to The Public Domain blog, January 1 is supposed to be Public Domain Day. I confess I'd never heard of it before. Nor did I know that Jan 1 of this year was originally going to be the day that famous works of American and European literature would have passed into the public domain. However, since copyright term extension happened, these works did not become part of the public domain. In fact, it appears that NO works passed into the public domain this year. This ought to be good news for copyright holders, who can continue to make money from their longer copyright terms
more than 98% of all works in copyright are "orphaned" -- still in copyright, but no one knows to whom they belong.
So nobody's making money on those 98%. But because the owners of the other 2% have good lawyers, good publicists, and pet Congresscritters, we get the equivalent of a massive book-burning - the Public Domain entry uses the analogy of Bradbury's famous novel Farenheit 451 in which the society systematically burns every copy of books. Legally speaking, that's close to what we've done.
It's true you can still find copies of many of these orphaned works, if you know where to look. People own them; libraries may have them. But don't try to make use of them, either as reprintable material or even as source and inspiration. Because they're orphans you can't even find someone to pay for those rights. They're under a lock to which no one has the key.
By making the copyright system "opt out" instead of "opt in" we've engineered a fundamental social change in the world and not really a change for the better.
The story talks a little about MP3 compression, which I assume most Copyfight readers understand, and its impact on audio quality. But most of the piece is about how dynamic compression has been used to make everything more uniformly loud. Christopher Clark's infographic accompanying the story illustrates this point in terms of peak sound levels over three decades of hit songs.
And the NPR story asks the interesting question of whether one of the reasons we're buying less music today is because it all sounds so remarkably bland and the same. In the push to make everything noticeable have we created a sound field in which nothing is noticeable and thus nothing motivates us to go out and buy it so we can listen to it again?
I highly recommend clicking through to the YouTube video of the same title, which very clearly illustrates how the push to make everything as loud as possible ends up distorting and homogenizing the music. The video's narrator makes the salient point that in the end you are the one in control of the loudness knob so you can turn it up or down as you see fit, but if you use your loudness knob on something that has already been compressed you lose out on things like punch and even simple sound clarity.
It's interesting to me that at the bottom of it all we find the same conflict that runs through so much of the Copyright Wars - who is in control here? The record producers who want things to be as loud as possible, or the customers with their hands on the dial.
The tool is just a simple form with text boxes that segregate comments into logical groups in response to standard question prompts such as "Give the FCC details about your life as a musician." It's not terribly sophisticated but may lower the barrier sufficiently to encourage people to write more in-depth and informative comments. Now if someone could just demonstrate that any form of public comment actually influenced FCC rulemaking...
I suppose it all depends on where your priorities lie. If you're China then you're much more interested in suppressing dissent than in respecting international IP treaties you've signed. Thus you ignore the billions in counterfeited (pirated) goods made in your country. And you steal code from CYBERsitter for your Great Wall of Censorship.
James goes through the similarities between textbook publishing and the (legal prescription) drug market in point-by-point detail, with citations and sources. Well worth reading both the summary points and following up the extensive URL links. James also replies to several of the reader comments in response to the posting.
"Unboxing" in this case refers to the experience of taking a product out of its box. For the average consumer the unboxing experience is usually pretty mundane. But companies often put together special packaging that is sent to reviewers who are expected to be influential in their initial presentations of the product. In the case of the N900, Nokia has done an amusing job of appropriating ideas from "hacker" culture for its unboxing.
This is old news but I just heard about it. MIT's faculty voted unanimously to put all their research papers online. That may not seem like a big deal outside of academia but let me assure you it's a huge deal inside the ivory towers. Professors can opt out if they want to - or more likely if they're forced to by publishers who want to profit off the publication and confuse dissemination with useful publication.
To my knowledge this is the first time an entire institution of higher education anywhere in the world has adopted this kind of policy and the fact that the vote was unanimous shows just how far the commercial constructions around scientific literature have drifted from the ideals of research, publication, and academic discourse that the researchers themselves hold to.
There are some times when I am really proud of my alma mater and this is one of them. Big damned heroes indeed.
(*) Firefly reference, for those wondering what the heck I'm on about.
In one of those "you gotta be kidding me moments", the dogged Canadian pursuer of matters online and intellectual, Michael Geist, blogs that the Cartel (Canadian version) may have pirated as much as CDN 60 billion in recordings. The admitted facts amount to at least $50 million in infringements, but you remember how the Cartel went for "statutory damages" (the maximum allowed by law) when it was suing its customers? Yeah, that. Well, if you count the statutory damages for the 300,000 songs involved in the suit? Sixty billion, baybee.
The issue at hand here has been long standing. In fact, the lawsuit itself is over a year old (filed October 2008) and that suit was only filed after the hundreds of artists involved got fed up with decades-long delays by the Cartel in paying what are called "pending" royalties. These royalties are due under law, but the situation in Canada is such that the Cartel doesn't have to pay before it uses the material, it just has to make a list of whom it owes what. And according to Geist, the list goes back to the 1980s. Which, I feel compelled to point out, predates even the original Napster.
In theory, the list should be paid off, but there are no penalties or deadlines in law for it, so the rights holders have to negotiate for what's due to them or if that fails, sue. And sue they are, thousands of them in a class action (PDF link) that seeks not only the back royalties that are due, but punitive damages because the Cartel has willfully stolen from these artist for so long.
Funny, where have we heard language like that before?
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.
From von Lohmann's postings you can jump directly to the 300-page PDF of the settlement to read the relevant bits for yourself.
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.
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.
One would think that the authors' positions in publishing, being better than the artists' positions in the recording industry, would lead to somewhat better incomes. No such luck. Rob Beschizza at boingboing pointed to Lynn Viehl's posting of her latest royalty statement. Significantly, this is a book that's been on best-seller lists and stocked well in stores. Ms Viehl calculates that one such book per year would probably leave her qualifying for food stamps.
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.
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.
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.
Earlier this week the Times Magazine online published an extensive piece on Pandora, a service I've used for several years and started paying the premium for a year or so ago. Surprisingly, it looks like Pandora might actually turn a profit this year, due in large part to a popular iPhone app. This despite 50% of their revenue going to copyright fees.
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.
The whole thing started with a photoshop disaster, reproduced here so you can see what we're talking about. The wholescale massacre of peoples' images for advertising purposes is well documented. You can go to YouTube and find a hundred videos showing Photoshop "makeovers" - one of the best is the "Dove evolution". But the gist is that anytime you see a model (almost always female) in a magazine, on a billboard, or any other advertising medium, she's been styled, made up, and then digitally altered so as to bear very little resemblance to how she actually looks. There are interesting Copyfight issues here about what is an original and what is a derivative work in this chain of illusion, but that's not what we're here to talk about.
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.
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.)
The geek news sources have been abuzz the past few days with the news that Disney acquired Marvel. The mainstream press is focused on the financials, of course, but I couldn't help but think about the implications of trying to find and corral all the Copyfight-related interests at play here. Marvel of course was first known for comic books but as its characters gained popularity a huge variety of other interests spun off.
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.
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?
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.
What we have here is not just an argument about how our laws are interpreted. Nor does this appear to be a typical case of an organization attempting to clutch unto itself every right it can grab. This is a clash of cultures, both of which think of themselves as promoting a particular set of social good things, and tangling over the expectations and legal frameworks available to them.
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.
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.
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?
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.
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.
Now if you're like me and my friends you see the text that you copied and also this:
The amount of text copied that is necessary to trigger this seems to vary by which browser you start in.
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.
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.
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.
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.)
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.)
Generally I have a lot of respect for Richard Posner. The word "brilliant" gets thrown around casually a lot, but I really do think Posner verges on brilliance. You don't get 40 books published by writing nonsense or wasting readers' time. Let's settle for saying he's a very smart, very widely influential judge.
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.
No. Just no. Linking is the fundamental technology of all hypertexts, of which the World Wide Web is by far the biggest and most popular. One of the reasons it is so large and so widely used is the ease with which information can be accessed, transferred, exercised, repurposed, and reused. The fact that this fundamental technology is in conflict with the page-centric advertisement+content revenue model is an indication that the ad model is flawed, not that we should erect further legal barricades to try and cripple the very thing the Web does best.
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.
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.
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 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.
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.)
In addition to Vikings, reindeer, and cute blonde girls, Sweden can now say it has a Pirate member of the European Parliament. According to Veronica Ek's story for Reuters (here reprinted by the Globe and Mail) about seven percent of the Swedish electorate cast ballots that sent a member of the Pirate Party into office.
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.
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.)
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.
And by "free" we mean both "Creative Commons licensed for free use" and "free of Cartel propaganda." Nice combo. Here are some excerpts from the press release they sent:
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 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.
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.
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.
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.
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.
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.
1. Apparently, noted chef Emeril Lagasse made a stink on the show Good Morning America by claiming that one of its hosts "stole" a recipe of his. For, of all things, Dorito casserole. No, I'm not making this up. Seriously. As the blog post notes, you can't copyright a simple list of ingredients, any more than you can copyright most other simple lists. There needs to be some measure of creativity for the work to be considered an original item, and thus worthy of copyright protection.
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?
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.
With all that background, there was a large pent-up demand for a non-browser, one-button easy way to keep a mod library up to date. Enter Wowmatrix. This is a mod updater that runs on all platforms WoW runs on, installs with a simple download and provides quick and easy updating of mods. Heaven, right?
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.
The Social Science Research Network is offering free introductions to material within its now Cognitive Science Network (CSN). CSN will provide "a worldwide, online community for research in all areas of cognitive science." They will have seven e-Journals in various cog-sci areas and are offering free subscriptions until October 2009, and then $40 after that.
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.
Fast forward ten years. It's now 2009 and I still love this kind of thing. A friend recently pointed me to 8Tracks, one of many sites where DJs and folk can post mixes. Their motto, "a simple, legal way for people to share and discover music through an online mix" is just exactly what I want. Like anything new, it's very hit-or-miss. But sometimes it turns up real gems. Like La Roux - In For The Kill (Skream's Let's Get Ravey Mix). Go ahead and listen, I'll wait.
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?
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.
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?
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.
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 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.
Chris Crum over at WebProNews has posted a Q-and-A with LimeWire's George Searle, who has a couple comments on ongoing partnerships and attempts to move beyond the trench warfare with the Cartel. (Reminder: I work for a company that is technically related to LimeWire, but have no contacts or interest in that bit of the business.)
To back up a bit: Blizzard makes World of Warcraft the insanely popular online multiplayer fantasy game(*).
MDY makes and sells a program that plays the game automatically (called a "bot," for "robot"). Many players resent bots and botters, and Blizzard has waged war against them for years. However, the bots are popular. Apparently over 100,000 copies of MDY's bot, called Glider, have been sold at $35 a pop.
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.
(*) 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.
OK, enough with the funny stuff. The new Obama administration is shaping up to be a disaster for Copyfighters everywhere. In particular the new Department of Justice is stacked with lawyers who've been on the wrong side of copyright and intellectual property lawsuits for the last eight years.
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.
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.
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.
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?
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?
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.
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.
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.
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.
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.
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.
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.
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
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.
We're used to understanding (maybe more than the general public does) the degree to which the modern record-making system is a slave enterprise. The artists are indentured and their work is wholly owned by the labels. The labels can promote or not, arrange tours or not, front money or not, and generally have full and complete ownership of the created product.
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?"
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.
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.
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.
It's not immediately clear from the press reports whether anyone is going to be accused of outright illegality, and of course the drug companies are responding by claiming that EU regulation is blocking innovation and anyway lots of people get generics now so what's all the fuss.
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”.
Grogan also quotes David Earp, the chief counsel for Geron, a US-based pharma research firm, as claiming that the current decision is more narrowly drawn than the quote above would suggest, and expressing confidence that Geron's other human embryonic stem cell work can be protected in Europe.
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.
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.
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.
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.
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.
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.
My brother sent me an invite to sign up for the music streaming service "Lala". According to their promotion it's all kosher with the Cartel. You play a stream in your Web browser in a Flash plug-in (like Pandora and Last.fm).
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.
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.
I suppose, in the sense that a trademarked logo is a tangible asset with some value, it could be seized in a law enforcement action. But, really, do you want to be the guy assigned to take a biker gang member's jacket off his back?
The "Business Models for Artists" series I noted a few days ago has now concluded. The series ended up being less about actual models and more about methods for enacting a model once you've got one.
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.)
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.
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.
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).
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.
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.
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.
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?
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.
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?
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.
Interesting AP piece on Geoffrey Raymond's art form: he paints a large picture of a public figure (e.g. Barack Obama or Lehman Brothers' ex-CEO Richard Fuld) then takes that picture out into the public and invites people to annotate it. Most people seem to sign their names or leave text comments. You can read his blog at "The Year of Magical Painting" and if you click through the portfolio link and ask Picasa for an enlarged image you can even read some of the comments.
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.
Of course, here "free" means "anyone with the resources to defend this claim against Disney's army of lawyers."
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]
So, what happens now? At the moment all this is so much theorizing. As noted, the judge in the original case never ruled on the validity of these challenges, only that they came too late to save Brown's business.
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.
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.
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.
So, technically, you still keep the copyrights for things you create in the Chrome browser - like, say, blog entries. But you give up to Google the right to redistribute that content, including using it for commercial purposes.
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?
Linked to me by a friend: 25 Places to Read Free Books Online. It's not a comprehensive list by any means; for example, they left off Baen's Free Library, which is an excellent SF resource. That said, I think it's excellent someone can compile a list of 25 such places, referencing many thousands of titles.
OK, I'm in need of help here. Have I got this right?
I got an interesting pointer from a European Copyfight reader indicating that I should take a look at the growing controversy over the European Parliament's proposed new telecoms package. As far as I can tell the source of this controversy is here: http://www.europarl.europa.eu/eplive/expert/shotlist_page/20080708SHL33636/default_en.htm
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.
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?
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.
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.
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.
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.
Back at the start of June, I was interviewed for a story that has finally appeared in Infotech and Telecom News. The story is mostly pull quotes from people talking about the MPAA's recent wins against Web sites that post links to copyrighted material. The article author wrongly states that I'm still associated with MIT, but at least the quotations are accurate.
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
Bruce Schneier has an update on his article for the Guardian describing the "movie plot" efforts to link public photography and anti-terrorist work. The gist is that there is no credible evidence linking public photography - even of public buildings, infrastructure, etc - to terrorist acts. Therefore, acting against photographers is not increasing security - it's just making people feel good and wasting resources.
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
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.
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.
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 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:
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.
In addition to malicious framing, innocent people can still be erroneously fingered, even if they've never run a P2P program
Privacy in P2P networks is partial or illusory at best
The authors also try to draw some conclusions, and call for more transparency in the monitoring process. Considering the amount of malicious activity the Cartel directs at the P2P nets I don't see this happening anytime soon. One the other hand, I see the paper's authors getting a few calls as expert witnesses in the near future.
Our friends at the Future of Music Coalition are announcing a CD compilation to benefit their Net Neutrality campaign. Featured names include Wilco, Bright Eyes, They Might Be Giants, Aimee Mann, Guster and more. The CD is set for an end-of-July release.
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.
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.
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:
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.
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.
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
There are more, of course, but let's focus on these for a moment as we've further developments to discuss in Atlantic v. Howell, a case I pointed to in December of last year. At that point, there was contention over whether the Cartel were backtracking on the question of whether CD owners have the right to rip their own CDs.
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.
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.
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'.
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.
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.
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.
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.
A friend pointed me to a new search tool, compfight, that allows you to search for pictures posted to the Web photo hosting site flikr. The cool part is that you can check a box that lets you search for Creative Commons-licensed photos.
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 of interesting links from the pile today. First up is what looks like "Netflix for audiobooks", though they don't use that slogan. Simply Audio Books requires a monthly fee or prepaid subscription and based on how much cash you put up front they let you hold onto 1-4 audio books as long as you like.
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....
Yes, that's what he said. A privilege of success on the scale of Gaiman's is that you can think in terms of just giving your books away. But it's still true that other authors of comparable stature and success haven't publicly stated this as a goal. So excuse me if I boost signal for Gaiman a little bit.
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".
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.
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 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.
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.
The next in what I expect will probably be a chain of parodies of the Yes We Can song has appeared in my inbox: Billionaires for Bush bring us the "No You Can't" song. Unless one of these parodies generates something new or newsworthy I'll probably not blog them but you can feel free to keep sending me links, if only for the amusement value.
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.
In a move that surprised nobody under the age of 50, the "Yes We Can" political remix has spawned its first parody. The john.he.is video mashes up bits of John McCain speeches with... well, it's a parody so I won't spoil it.
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.
Gaiman has previously confronted questions of people free-trading his stuff and he's consistently sided with the fans. So it's not surprising that he'd point out the truth that our relationship to authorial work, and by extension copyrighted work, is complicated. Simply throwing around dramatic labels like 'piracy' isn't just wrong - it completely misses the point.
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.
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 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.
The idea that individuals need lawyers to negotiate their cultural personal material space shows how broken current copyright handling is. Doctorow would "stop shoe-horning cultural use into the little carve-outs in copyright" and instead create a new copyright regime that treats small-scale copying differently.
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).
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?
I just got a pointer to Kevin Kelly's blog "Street Use" that is dedicated to reporting on different ways people are using technology. I'm sure the Cartel isn't happy about things like "Phone Mining" (scroll down to Dec 19th).
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.
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.)
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.
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.
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.
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.
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.
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.
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.
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.
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...
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.
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
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.
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.
Not everyone is pleased that the site was taken down, least of all the reputed 180,000 members. DJ Rupture posted a thought piece mourning the demise of the site, which he found contained everything he had ever released. He thinks about BitTorrent and sites like Oink in terms of their relationship to music fans and music as a money-making business. It's a good read from someone who's in the business and gets that you can't win this war by smashing more and more blobs of mercury with bigger and bigger hammers.
First, Tom Krazit has a juicy blog entry in which he claims that "NBC wanted a cut of iPod revenue." He's reading mostly from a tip in Variety, the industry trade rag. Apparently, NBC really wanted "variable pricing" - a code phrase for 'charging more for popular items'. When they couldn't get that they reasoned that if Apple was going to use cheap downloads as an enticement to sell more iPods then they ought to get a slice of that pie instead. Yeah, right. I'm sure you can get Jobs to talk about that... oh, maybe right after you get the television set manufacturers to give you a cut of their revenue.
The second piece, by Greg Sandoval, takes a kinder look at NBC's hulu.com download site. He does note that it has a silly name, too few shows, and not much else. But Sandoval seems to be willing to grant that there's potential in the site. The big points seem to be "easy navigation" and "high quality" streams. Like, y'know, you'd get on iTunes. It also lacks a back catalog for people wanting to get into ongoing series. Like, y'know, you'd get on iTunes.
hulu is also free. Not even an ad to spoil the viewing experience. So NBC is spending a lot of money, or maybe it's getting money from MSN, AOL et al who are carrying hulu content. And they're not getting any revenue from downloads. Like, y'know, they'd get from iTunes.
The gist isn't terribly surprising - recipes get copied around a lot. Anyone who has ever been in the restaurant business knows that innovations are often quickly scooped up and duplicated. I've known chefs to dine at competitor's places while in disguise, to plant employees into rival chefs' kitchens, and other dirty tricks. So copying a recipe that someone posts on the Web is not a big shock.
There is real money involved here, in that some sites charge fees to access online recipes and many sites depend on traffic. If a copy of a site's recipe gets higher rankings on a Google search then it may divert traffic from the originator. All of which brings us back around to the question of what constitutes fair use. As I noted in the original discussion of Attributor, one of their major claims is to provide a platform on which such conversations may be constructed..
Recipes are particularly tricky to think about, as they're combinations of a fairly limited set of ingredients in fairly standardized ways. If I'm going to whip egg whites for my cake I'm likely to do it in one of about four ways, all of which are well-known. There are good physical chemistry reasons why I have to whip the whites and then fold in other ingredients - I can't simply reorder the steps. It's pretty clear that a simple list of ingredients isn't protected by copyright. Even if I find a new combination of spices to make my cake amazing, just listing that combination isn't enough to qualify.
Beyond that, cooking is very much a derivative art. Recipes and techniques get copied all OVER the place. Chefs learn their trades through long apprenticeships and often start by making close copies of things they learned from their mentor chefs, but with their own variations added. Attributor may be doing a good job of showing off its technology here but they're not adding anything to the discussion about what is or is not fair use of a recipe.
There's no magic here - he just did a lot of drudge work, digging up prior art, and some fundraising work, getting his blog readers to donate the USD 2,520 fee required to file the challenge. Yesterday the patent office issued a 17-page "reexamination document." This document does not comment on the original patent - it simply judges the validity of the patent's claims against the submitted prior art. That judgment found that two of the patent's main claims were not invalidated by the prior art, and that allowed three dependent claims to escape as well. The rest of the claims are disallowed.
Interestingly it appears that the invalidating evidence was not just public-domain literature, but actual issued US patents. Which means that both Amazon and the PTO did shoddy jobs searching through the patent database. Greg Aharonian of PATNEWS and others have been claiming for years that PTO searching is a joke when it comes to software patents - compare the prior art listings on your average biotech patent with that on a software patent. Stories like this can only add credibility to those accusations.
Aharonian adds a bit of detail
The PTO relied on two patents provided as prior art (which the PTO had been unable to find on its own): 5819034 (a one button ordering process for interactive TV) and 5729594 (online financial transactions with BUY button). Also used was a Newsweek article, and a prior Amazon patent.
It seems likely Amazon will appeal, as this can affect not only their settlement with B&N but also any ongoing licensing arrangements.
The RIAA has been handed a huge victory in its first-ever jury trial. Jammie Thomas is now on the hook for USD 220,000 at the going rate of 9,250 for each of 24 songs. The jury, according to Sandoval's CNET piece, didn't seem to care that she hadn't actually been proven to have shared the files.
This money and other monies extorted from customers is "reinvested" in the jihad. As Eric Bangeman reported for Ars earlier this week, that campaign is a big money pit. I'm totally unsurprised by this, having guessed as much many months ago. Bangeman thinks it's a 'bombshell" that the Cartel isn't making any money off of this and really has no idea how much money it's losing (if any) to file sharing. I think it's totally unshocking and the fact that they'd admit it in open court is just a measure of how confident they are.
So what we're left with is a potential appeal or possibly the Cartel offering to settle for a few pennies on the dollar. They're not getting a quarter-million from a single mom and they know it. But they never really expected to - what they want to do is punish, inspire fear, and intimidate. I'd say they won on all those counts.
Meanwhile, file sharing continues unabated. You don't change peoples' attitudes and behavior through punishment, fear, and intimidation on anything less than a governmental level, and maybe not even then.
For years now the Cartel have played it coy on the issue of whether they think it's legal for people to make personal copies of music you bought. Certainly the naive reading of the laws on personal backups and the like would encourage people to think they can make private backup copies of their own CDs. The alternative is that you ought to buy a copy of the CD for each car, computer room player, and boombox. And don't forget to buy another copy for every digital music player you want to download for, though most of the online stores explicitly let you use a tune on multiple players.
The Cartel has tried to have it both ways for years. You may remember that in MGM v Grokster, the RIAA agreed that it was OK to copy your own CDs, then promptly backtracked on that position in the Feb 2006 DMCA rule-making process.
This week we have Jennifer Pariser, the head of litigation for Sony BMG, testifying in Capitol Records, et al v. Jammie Thomas uttering this bit of... um, let's just agree to call it 'self-serving bullshit':
When an individual makes a copy of a song for himself, I suppose we can say he stole a song.
Eric Bangeman's piece for ars on the case, linked above, highlights what may be an interesting point, if the trial judge lets the defense pursue it: the RIAA is... oh, I need another phrase here, let's use "lying through its rotten teeth" about ownership of copyrights in the music it's suing people for sharing.
Ars has been publishing stories for much of the last few months pointing out that the Cartel has gotten sloppy and overreaching in these suits. Mostly they get by because nobody can afford to fight them in court and risk a big loss. But if there''s a dirty underside here, maybe we'll see a single mother from Brainerd, Minnesota, expose it.
Comments on my post about CreateSpace led me to look at lulu.com. Another PoD organization, it also features non-exclusive licensing and is more focused on books and a "global marketplace" (whatever that means). It doesn't have the Amazon tie-ins. On the other hand you're not losing 45% of your gross to the Amazon structure either.
lulu claims to distribute through "60,000 retailers, schools and libraries" which sounds impressive but is really a tiny number when spread out even across the English-speaking world, let alone globally. Having a copy of your book in a school or town library isn't likely to do much for your sales or name recognition, either. lulu's manufacturing costs seem (at first glance) to be even higher - 100 copies of a 400-page paperback come in at just under USD 11 per book.
A FoaF did a monetary breakdown of the CreateSpace costing for various media and it comes out to nearly unworkable, especially for books. The price you'd have to charge end customers would put you at a severe disadvantage when compared with standard preprinted publications from known names. What ever happened to PoD being cheaper?
Self-publishing and vanity publishing have been around for almost as long as the book has been with us. Back in the early enthusiastic days of the dot-com bubble there was a lot of talk about print on demand (PoD) being the next great thing. Inventory costs and the Reagan-era tax law changes on inventory depreciation more or less killed the backlist and midlist publishing business.
Amazon brought that back with its winning bet on the long tail but still PoD eludes us. If you want to buy a book, it needs to be there because someone printed it in anticipation that you'd buy it (or download it). Or does it?
Createspace looks like it's out to change that by making book, DVD, CD and video publication on demand possible, and maybe even cheap and convenient enough to appeal. As an Amazon company they're hooked into a big marketing and search machine - if I want to write about intellectual property issues and have people on Amazon find my book when they search, this may be the way. (No I'm not writing a book, I promise.)
In addition, Createspace is prominently featuring a "you keep the rights" slogan on its front page. Of course the devil is in the details, but from my fast skim it appears you keep the essential rights and the company gets rights to reproduce your work because they need to do that after they receive a customer order.
I'm always concerned about what the experience is of the person using a service and it appears that from the customer's point of view, Createspace will be invisible. Just like ordering from any other Amazon merchant, I place an order, pay (including Amazon's commission), and stuff gets downloaded or shipped to me. Could be a nice win, even if it's not earth-shaking.
A friend linked me to Brian Dettmer's "Book Autopsies". Apparently these works of art have been shown in the (US) National Gallery of Art. I love these images and really I can't see much difference between this - which we call "art" - and the use of pre-existing visual or auditory media in a mashup that gets called "piracy". Same point as Lethem made in his essay early this year.
Yes, you read that right. Microsoft settled with Burst some time ago, to the tune of USD 60 million. But that's peanuts next to the nearly half billion that Burst figures its owed from Apple, due to the use of its patented technologies in a little thing called iTunes (and the store, and iPods). If Burst wins big it will be because Apple used the technology in a big way where Microsoft did not.
Robert X Cringely's Pulpit column on this case makes that point that the news reporting on it has... well, sucked. In general the press coverage of IP cases tends to be slanted or just outright wrong as the reporters don't know what they're covering. I'm sometimes guilty of this myself.
In this case, Cringely slams the reporters for both falling victim to the Apple mystique and just plain getting its facts wrong. He has particular harsh words for ars technica (this time in the personage of Justin Berka) for getting Burst's history wrong.
You can read the original linked pieces to see the details but I think Cringely is spot-on. Despite us being into the second decade of the "Internet revolution" we still get mass media reportage that can't tell the Internet from the Web, and that makes basic mistakes I wince over regularly. Ars is usually better than that, but clearly even they mess up now and then.
After Apple showed NBC the door in a tiff over prices and DRM, the network took its goods to Amazon and announced plans for its own download service. Now the service, called NBC Direct, is offering some very limited downloads.
They're free, in that you get to watch ads rather than paying cash up-front. They're also limited-time-only. According to David Chartier's piece on ars, the downloads that start in October have a one-week lifetime. From air date, not from download date. I'm not sure why - this makes the downloads strictly worse than what you can do with TiVo. Oh, and the downloads are Windows-only. Eventually you'll be able to sign up for automatic download - anyone want to bet me that the sign-up process will be harder and more complicated than just setting your TiVo to record the shows automatically?
I'm not sure who this is aimed at, but I am sure it's an idiotic idea. If NBC was trying to make Apple look like a winner in this dispute they've accomplished that much.
Doctorow freely admits that he has not performed any scientific comparison studies. But drawing on his own experience, the experiences of Baen Books, O'Reilly's experiments, and a couple of academic studies, he makes the case that giving away free ebooks promotes the sale of physical books. He argues that the act of reading a long-form piece such as a novel requires a level of concentration that computers make difficult because they offer distractions and enticements to do other things.
(The fact that this is my third attempt to post this entry, one lost to distraction and one to a crash, has nothing to do with my agreeing with him. Really.)
Doctorow is also writing a biweekly column for the UK Guardian under the heading "Digital rights, digital wrongs". The columns, of which there seem to be three so far (what happened to September 18?) are collected here: http://www.guardian.co.uk/technology/series/digitalwrongs
Dan Saffer has a piqued entry over at his Adaptive Path blog. He's peeved at organizations such as the ACM, which publish content in paid subscription digital libraries. I have a basic sympathy for his point in that I think free access to scientific literature is good for research and innovation, but I think he's shooting at the wrong target.
ACM is ahead of many professional organizations in granting blanket permission-to-copy for scientific uses of everything they publish. ACM authors are free to reuse, revise, and publish personal copies of works, unlike certain other societies that have gone so far as to forbid authors from publishing their own writing on personal Web sites as a condition of acceptance for professional publication.
dan, if you want to rant about something truly awful, go join PLoS in protesting astronomical journal fees.
(Full disclosure: I was an ACM member from 1980 to 2006 and have a handful of papers in ACM publications. I've also served on numerous ACM conference committees and know way too much about budgets and why ACM sometimes charges speakers to come and present their own work.)
Last Friday I had a phone conversation with Rich Pearson and Matt Robinson of Attributor, a Redwood City, CA, startup. The nominal reason for the call was that Attributor announced this week that it has signed up Reuters as its second big customer using the company's content-tracking platform. In actuality, we had a wide-ranging conversation on the company's products and philosophy.
People who've been reading me for a while will know that I feel we desperately need new business models - the old dinosaurs aren't going to survive. Attributor wants to make the case that they provide a technology platform on which new models can be built, based on the ability to find out quickly where content is appearing on the Web.
Attributor's own business model is that a content creator signs up with them and identifies content to be tracked - so far they have announced deals with news syndication giants AP and Reuters and are in "closed beta" with 15-20 other content creators, including bloggers. The Attributor platform monitors Web pages and identifies instances of use of the tracked content.
The "secret sauce" (as they put it) has two parts: one is they claim to be able to track billions of Web pages in near-real time; the other is that their idetification algorithms are claimed to be able to identify the amount of content reuse, down to about the paragraph level within a text document.
The first is interesting in that it's a claim about the value of the long tail. Does AP care that its story appears on someone's blog or MySpace page? Does it care as much as it cares when that story appears on your local NBC affiliate's Web site? Maybe, maybe not. One of the arguments Pearson and Robinson made is that their customers care about the "reach" of certain messages. It's one thing to see your stuff show up at all on Digg or Slashdot; it's another thing to know that within a week of that appearance the story was found on 300 other blogs. From just a simple marketing perspective, it would be useful to know which types of content propagate in which ways. Attributor claims that people care about the long tail into time as well - not just the the first 72 hours.
The second point is truly key to discussion around fair use. If we believe that anyone in the Cartel still respects the principles of fair use doctrine, then it makes a huge difference whether I've copied a whole AP story or am just quoting a paragraph in a Copyfight posting. And of course once a "hit" has been found it's simple to analyze the page for the presence of paying ads, giving prima facie evidence of whether someone using a piece of content is making money off that use.
So if the technology works - they claim 99th percentile accuracy in both precision and recall - what can you do with it? Well, one of the services Attributor offers is automated DMCA takedown notices. It's up to the customer to decide to send them, but they're there. This led me immediately to wonder how they plan to avoid fiascos like SFWA created with its spurious takedown notices. To wit, what prevents me from using Attributor to generate improper DMCA notices?
The answer is "not a whole lot." Attributor have some identity-checking capability, as do most online Web companies. And they provide linkbacks so that takedown notice targets can see what content specifically is claimed to be infringing as well as who generated the notice. But the DMCA remains a blunt, clumsy instrument and Attributor isn't going to fix that. Pearson and Robinson want to focus more on the notion of "multiple remedies". If I know who's using my content in what quantity how often for what purpose I have much more information to go into a business negotiation. They believe their customers are more forward-thinking and interested in new revenue opportunities more than locking down use.
Speaking of lockdowns, what about DRM? Attributor paints itself as "the opposite of DRM" and on this point I agree. The fundamental notion of DRM is control over action by people with content - it's necessarily a preemptive strategy since you can't attach DRM to content post facto. The fundamental notion of Attributor is "know what's going on then decide what to do". By providing visibility into how, where, and when content gets used, they believe they can open up opportunities for new product development, such as use-based licensing.
Will this really happen? Magic 8-ball says "ask again later". It's quite clear we need new tools and new ways of thinking about managing digital content, but I don't see any guaranteed winners this early in the game.
Trent Reznor has some choice, and not-particularly-friendly-to-the-label words for his live concert fans. Now posted on YouTube for all to see, Trent notes that the price of CDs hasn't come down and that means they're "still ripping us off."
I dunno if this means he's not getting his cut of the CD shares or he feels his $1 out of the retail price isn't significant enough to care about. Or maybe he's just out to piss people off and get some publicity.
In a NY Times Sunday magazine article (that I won't link to because it's locked up behind a 'premium' wall) Rick Rubin finally admitted publicly what copyfighters have been saying for 8 or more years: the record industry's current business model is dead. *yawn*
So why is this getting all kinds of press coverage? Well, Rubin himself is pretty well known in the industry for a string of successes as a studio producer (e.g. Beastie Boys), a career-reviver (Johnny Cash), a record-label founder (Def Jam) and was recently named co-chairman of Columbia Records. He's also known to some as the producer of the infamous 12 Songs CD by Neil Diamond that contained Sony's rootkit.
Sandoval's piece for CNET, and a similar analysis by Nate Anderson for ars, highlight Rubin's plan for subscription access to music anytime, anywhere. Sandoval mocks the concept, noting that prior attempts at this "jukebox in the sky" have failed. Anderson further notes that Rubin still doesn't understand the notion of grass-roots buzz, since he apparently feels that Columbia can hire college kids to create buzz. What they're missing is that there is already a free cloud out there, whose mission is to let you get to your content any time anywhere that you have a live net connection. Google, anyone?
I freely admit that I've drunk the Kool Aid here. I hate the idea that Google's going to claim to own content I've uploaded to them and that it's going to index that content and sell it to marketers. I'm not a huge fan of getting ads with my email. But I loathe attachments and their virus potential more. I hate the proliferation of memory sticks and ipods and not being able to figure out which bit of my stuff is on which box. If people want to send me documents I tell them to put it on Google docs and share it with me. I store a fair amount of my own stuff up in the cloud - it's gigs of free storage and I can get it anywhere, independent of the device I use to access the cloud. The infrastructure could trivially handle my music collection and stream it, too. It's just a matter of negotiating the right fee structures to pay for the storage and bandwidth costs.
Anderson is right that DRM issues would still need to be worked out, but I don't regard those as insurmountable. The base line here is that the music business has to compete with free and I don't think anyone has done a better job to date than Google at monetizing "free" email, storage, and downloading. Of course it's not really free but since I'm not forking out large numbers of visible dollars and since they've put a lot of effort into making the experience as easy as they can figure out it registers as free.
For much of the past few years of the Copyright Wars I've been arguing that the Cartel should look at the bottled water business for ideas on how to sell a product at a premium price when that product has to compete with free alternatives. Since they don't seem capable of that, maybe they'll be able to recognize that free is always relative and pick a form of free that is already showing tremendous success.
Let's step back a moment for context. As usual, there's a good coverage piece on ars technica, this time by Jacqui Cheng. Anyone who has followed iTunes for a while knows that they've been pretty firm in sticking to a uniform, fixed, and relatively low price-point for downloaded material. This has irked various parts of the Cartel, which would like to get more money for popular content. Considering the prices people pay for ringtones and pay-per-view movies it probably seems pretty logical to them that people would pay more for iTunes-sold content.
For much of last month, NBC and Apple bickered semi-publicly over issues of pricing and incidentally whether Apple would be willing to deploy more DRM. NBC threatened to take its marbles and go home when its contract expired in December. Then Apple decided to call NBC's bluff and said "take a hike, now." No NBC shows on iTunes for the fall line-up.
Oops. Probably what was supposed to happen was that NBC would continue to get revenue and connect with show fans through iTunes until its own ad-supported digital download service (currently called Hulu) launched next year. Not wanting to be stranded, NBC struck a quick deal with Amazon, which is currently offering individual shows at $1.99 and "bundles" at $34.99.
So did Amazon win by scooping up iTunes' cast-offs? Probably not. For one thing, Amazon is now competing against itself again because these downloads and bundles cost more than the comparable DVDs Amazon sells. Sales of one are going to hurt the other. For another thing, Hulu is still coming, which means Amazon is either going to be stranded with orphan content or is going to have to compete with an apparently free service that has the marketing might of NBC behind it.
Munarriz also points out that one of the unsung big winners here could be TiVo, which has a deal with Amazon to download purchases and rentals directly. TiVo owners can now order NBC shows with their remote controls, without having to engage the PC. Is this enough of a benefit in user experience to make a difference? I doubt it, but it may serve as a model for future deals that will drive more content into this platform. It's all about marketing, right? And this is a good marketing point for TiVo in appealing to people (like me) who are still considering a DVR purchase.
As I said, the story is probably not over. Both NBC and Apple are going to lose money this way and neither is likely to sit still for that. If NBC stays off iTunes and makes its own service work then that could embolden other Cartel members who'd like to break free of the iTunes lockdown to try going out on their own. TiVo or another aggregator could also win big as there's virtually no downside to NBC or whoever doing deals that let people download to a DVR rather than a PC, so long as they get the pricing and DRM structures they want.
Problem 1: SFWA isn't the copyright holder in any of these works. It's a trade union of writers and sometimes acts on their behalf. It's not clear to me that SFWA has DMCA takedown rights here.
Problem 2: SFWA's list was hastily constructed and either not checked or poorly checked. As a result the target site, scribd.com, was told to take down a much wider variety of works than intended. This included Cory's own Creative Commons-licensed book, a teacher's bibliography, and other innocent bystanders.
Michael Capobianco, the President of SFWA, wrote an apology both to Doctorow and to scribd, attempting to correct the error. That may or may not be enough to mollify the injured, who technically have a legal recourse in suing SFWA for spurious takedown notices. Doctorow points out that such notices also make it harder for the entities (usually estates, publishers or agents) that have the legal authority to enforce copyrights to get their takedown notices respected. If sites think that SFWA is an enforcement authority they may not be willing to accept the word of people they've never heard of, who happen to have actual authority. Doctorow notes that his own agent also represents the estate of noted author Philip K. Dick and his agent has to be responsible for sending out DMCA notes on behalf of that estate. It's certainly conceivable that a legitimate copyright holder could sue SFWA for making life more difficult.
I'm with Cory in thinking that SFWA should have known better and should have been way more careful when it acted, rather than taking a shotgun approach. The union has been remarkably hostile to the public domain, a trend I find disappointing and distressing.
PC World's Melissa Perenson has a nice little piece with Alan Bell of Paramount on why Paramount and Dreamworks have decided to dump Blu-Ray and go exclusively HD-DVD. Whether or not you think the purported USD 150 million in incentives had anything to do with it, notice what he does not mention: DRM. The two technologies are equivalent in that regard, insofar as the stuidos care about it. Pragmatically, an ongoing split in standards means a longer adoption curve, and postpones the day when the analog hole is fully closed.
Fair use hasn't gone missing. It got jumped, dragged into a dark alley and curb-stomped until it bled nearly to death. At the moment it's on life support.
I appreciate what Maura Corbett is trying to say. The excesses perpetrated against fair use are numerous and egregious. I just prefer more accurate and more colorful analogies.
The topic at hand right now is a formal complaint filed by The Computer & Communications Industry Association against several professional sports organizations and NBC/Universal, with the FTC. The complaint points out these organizations and others have used the standard copyright notices on DVDs, on sports broadcasts, and in other places not to inform but to intimidate and mislead. I'm shocked; how about you?
Why the FTC and not the FCC, which nominally has responsibility for communication rules? Well, the complaint is an allegation of deception and misleading consumers, which is more the FTC's bailiwick. FTC regulations prohibit "unfair or deceptive practices in commerce" and in the past the agency has acted against advertisers or other commercial speakers who have been found to be putting out misleading information. So it's not wholly farfetched to hope they'd act, but it certainly is a long shot.
CCIA has created a new organization called Defend Fair Use to fight "[t]hreats and exaggerations that misrepresent your rights." This complaint appears to be their first action.
Which brings us back around again to Ms. Corbett's politely worded "Perspective" piece. I can't complain about the arrival of another copyfighter, but let's call a spade a spade. When "the NFL threaten[s] the media by withholding press credentials for any organization that showed more than 45 seconds of a game" - that's not fair use gone missing. That's premeditated murder.
The MPAA's weapon of mass discovery has caused TorrentSpy to shut off access to US-based IP addresses. The district judge still hasn't ruled whether TorrentSpy must turn over its user list but the company must be anticipating a loss. They may have decided it's not worth continuing to fight the Cartel's army of lawyers and since they're outside the US they may be able to ignore a judgment as unenforceable.
WIRED's blog has a nice roundup by Scott Gilbertson of the latest entrants in the unlock-your-iPhone race. I'm not that interested in the cracks, but it is worth repeating Gilbertson's note that a recent exemption to the DMCA specifically permits lawful connections of any handset to any wireless network, exclusive deals between Apple and anyone else notwithstanding.
Problem: you bought content locked in a DRM box but the entity that sold it to you went out of business. You now have the electronic equivalent of a paperweight.
DRM is usually sold in packages by very large companies that tend not to go out of business, like Sony, or Microsoft, or Google. And yet, though Google remains in business, customers who bought its DRM-encumbered movies are now being left high and dry as the company closes its Google Video Store.
There's a good point to be made here - peoples' legal content purchases ought not to be effectively yanked out of their homes just because a corporation goes belly-up or "exits the business." But this is remarkably like what happens when you purchase a physical good whose manufacturer ceases operation or discontinues the line. Parts and services become increasingly hard to get and the value of your purchase tends to go down steeply (antique and collector value notwithstanding). You can't buy leaded gasoline generally in the US anymore - if that's what it takes to power your car you are likely out of luck.
Furthermore, it seems to me that the issue here is not simply "DRM bad", however much I take that as an article of faith. The issue is that private holding of DRM keys and controls is potentially risky for consumers. There are other structures that could be set up to mitigate these risks. For example, a non-profit or quasi-governmental organization could become the repository for the keys and codes needed to keep locked content viable. Imagine a kind of Wayback Machine for DRM, if you will. Or a CERT for content keys. There might be a legal mandate to turn over the necessary data to such an organization as part of the shutting down process; or companies might do so voluntarily to avoid the kind of shame and opprobrium that Google got.
Part of any good model should be end-of-life planning. That we haven't done this for DRM-encumbered content is a flaw in our own planning, not necessarily a declaration that such planning is impossible.
So where's the ad opportunity? For person-to-person sharing there's an obvious "people who like A also liked B" scheme. If you share my musical tastes perhaps you'll also share my interests in movies, cars, fast food, etc.
For situations in which a tune is released by or through a commercial outlet the opportunities are more direct. If I show up with a copy of a song that was given to fans via something like a newspaper give-away, then perhaps that newspaper's competitors would like to entice me to switch? Or a tune offered as a free cell-phone download would give you a good clue as to which cell provider has my plan, with the possibility to market additional or competing cell services.
Would something like this work? Probably. Like any other marketing campaign it'd hit some wrong people and some right people and be sold and judged based on its success rate. I can't say that this is precisely what Activated Content has in mind, but I agree with McBride that this kind of thing is definitely coming.
Last week I commented on the sad state of patent effects on interface design work. Commenters to that entry pointed out that concerns over treble damages for willful infringement, concerns over having employees deposed in patent investigations, and the potential costs of infringement defenses all make it perfectly sensible for companies to shut people up in boxes of ignorance so there's no chance they might be exposed to patent information.
I seem to recall that the original purpose of patents, as written into the US Constitution, was to promote the progress of science. If someone can explain to me how forcing people to be ignorant of what's going on in their field of work promotes progress I'd be grateful. Because to me this is just exactly the opposite of the effects we ought to be getting. Paul Sherman, another professional in the user experience (UX) field, has a combination history and rant on his blog, talking about what this means for those of us who work particularly on the visible portions of software - the interfaces and interactions people have with them.
Engadget, among others, has a snippy view of the application, claiming that Apple's motivation is to "own" this form of keyboard-less interaction with devices. In particular this patent appears not to be about a specific dictionary or language - which are generally regarded as unpatentable - but rather about software and methods for using a large gesture dictionary and allowing meanings to be assigned in context-sensitive ways to different gestures in the dictionary. The application is laden with phrases like "for example" and "in one embodiment" that seem to be attempting to separate the methods claimed in the patent from any particular implementation.
In addition, the patent application incorporates by reference eight other granted patents or applications in process. This particular application has garnered some attention but it doesn't seem to be unique - it seems to be part of a process of Apple generating IP in this area. As with many of these things, there's a large bucket of prior art and it's not clear what, if any, of that art will be considered relevant. To my knowledge, nobody has yet tried implementing what I would call a gesture dictionary service that can be drawn on by multiple applications; all the implementations I know of embed the gestural language directly.
So in summary, I think some of the people up in arms would do well to read the application carefully and not treat this one application as anything hugely different from what has been going on in the industry for at least the last 15 years.
(Full disclosure: I did my Master's Thesis some years ago in the area of coverbal natural gesture, and studied a bit about gesture languages at that time.)
Wile Van Buskirk is quick to assure readers that the watermarks aren't personally identifying, the more relevant question is "so what?" It's unclear to me what Universal hopes to accomplish here. Statistical sampling of songs found on P2P networks and sharing sites might give some indication of whether more of those copies are coming from MP3 purchases or ripped CDs. But, as Eric Bangeman points out, there's a big unknown here, which is the course of propagation. If I sample 100 copies of a shared song and find that 90 of them have no watermark I can't thereby assume that 90% of shared music is coming from CDs. It's possible that all 90 of those copies were from one uploader who happened to have good bandwidth that day and so most people who asked for that song got a copy from him. Without a good chain of custody you can't say much about what a per-song watermark reveals.
Of course, simple numerical logic never dissuaded the Cartel from doing whatever it had its collective mind set on. Universal may have already decided to use this test as a way to make a case against DRM-free music and the actual numbers will be made to show whatever the pre-conclusion is. I guess we'll wait and see.
Jacqui Cheng at ars pointed to a series of Eurobarometer phone surveys on kids' online behavior. Covering kids 9-14, the surveys are intended to be used by the European Commission's "Safer Internet Programme." Not surprisingly, kids admitted downloading copyrighted materials. Equally unsurprisingly they had a wide variety of excuses for doing something most of them seem to know is illegal. As always, the "everyone is doing it" answer was popular, including many kids' assertion that their parents do it.
Never let it be said that the Cartel are stupid or don't learn. Hollywood looked at the history of CDs and first-generation DVDs and said "never again." Then they designed a system, called AACS, that would be embedded in every next-generation DVD and DVD player. The AACS requirements are strict and technical and were written by people who know a good deal about digital device architecture.
Ken Fisher has a thorough analysis of the problems that AACS DRM pose. He kicks off from Peter Gutmann's USENIX presentation, but goes much deeper. Gutman analyzed Windows Vista; Fisher contends that blaming Microsoft is beside the point. Apple will be doing precisely the same thing soon and next-generation DVDs will never play on Linux machines. Why? AACS.
The problems Fisher notes with this setup are in two categories: one is that implementing to the AACS standard consumes resources that commercial OSes should better spend elsewhere. In effect, the implementing company (whether it's Microsoft or Apple) is not free to allocate its development dollars in the way that maximizes things like OS security, customer satisfaction, or time-to-market. At least insofar as these conventional business goals conflict with the AACS requirements, good business loses.
Second, even once it's done it doesn't work. AACS is already cracked. As a secret standard developed by commercial self-interests, AACS was never subjected to the rigorous public peer review that validates important properties like integrity and trustworthiness. See Bruce Schneier's CRYPTO-GRAM list for extensive discussions of these issues. So billions of dollars are wasted on forced deployment of a broken system that benefits a tiny minority, costs the vast majority more money, and does little or nothing to stem illegal copying.
It's not clear to me is where we go from here. In under a year we'll have Macs and Vistas playing next-gen DVDs. All new movies will come out on those disks - first probably in sual issue but soon exclusively on whichever of Blu-ray or HD-DVD wins. Consumers will be forced to upgrade their players if they want to play the new disks and maybe have to re-buy their first-generation DVDs (anyone remember re-buying LPs as CDs the first time around?) But AACS will still be cracked, movies will still appear on sharing networks, and illegal players will be written for Linux and other OSes as needed. What will the Cartel's response be? I have no idea.
Justin Jouvenal and Jenny Toomey of FMC pointed me to the Pearl Jam Lollapalooza webcast tiff. What appears to have happened is that some overzealous minion at ATT, the sponsor and caster of the band's show, chopped out (that'd be "censored" I believe) some impromptu lyrics with political content. Shocking, I know, for a rock band to be making a political statement.
Pearl Jam have a long entry on the issue at their blog, saying that ATT admitted making the cuts was a mistake. The band go on to raise the concerns echoed by FMC about corporate control over the Web and the failures of self-regulation. To the point - who holds ATT accountable for errors of this sort or who challenges the contention that they are errors and not deliberate acts of corporate censorship? Well, unless we have strong net neutrality laws the answer is going to continue to be "nobody."
I get paid for being a usability expert, human factors and interaction designer. As part of that I read some email lists on which people in my field talk about things like work, design, and so forth. On one such list a discussion arose of Apple's recent patent application related to its touch interfaces ("Multi-Touch Gesture Dictionary", Application 20070177803).
Sadly, several people immediately raised an objection to discussing the patent, its claims, and so forth. Why? Because some list members work at companies that forbid them to access patents, issued or otherwise. Never mind that this information is in the public domain for a reason, the legal 'eagles' at these companies are actively working to block the line employees - designers, coders, etc.- from being exposed to this information.
Presumably the excuse is some kind of plausible deniability, but that's absurd. A product either infringes or does not infringe on the basis of its methods and operations when compared with the claims in the relevant patent. The knowledge of existing patents that the product's makers had or lacked isn't relevant to the question of whether or not an infringement occurred.
Perhaps there's a confusion between patents (public) and trade secrets (not public). Obviously one is not supposed to dissect a competitor's product in order to determine how it works and copy that. Patent law requires very specific disclosures and in theory a person skilled in the art is supposed to be able to reproduce the device or method claimed in the patent. Never mind that mere mortals can't make head or tail of what actual patent claims language says - we're talking theory here.
I suspect what's going on with these colleagues of mine and their employers is either gross incompetence on the part of the legal departments drawing up these policies, or overzealousness of implementation of policies that may not be as stupid as they seem when put in practice.
One alternative theory is that the extreme litigiousness around patents in the design and software business, and the headlong rush to patent everything, have created such an atmosphere of fear and uncertainty that companies are just calculating that ignorance is the smaller risk. That's terribly terribly sad, if true. Whether we like or dislike the current use of patents in the software world (I dislike the practice and am neutral on the theory) I can't see any possible way in which large-scale corporate-enforced ignorance can make things better.
The Cartel's jihad against its customers continues onward. It would appear that most defendants just pony up settlement money. However, a group of Oklahoma State University students have decided to fight and they're pulling out their own expert witness to do so.
According to the "Recording Industry vs The People" blog, the Cartel are attempting to shake loose the names and addresses of 11 OSU students who are the target of John Doe subpoenas. The students, in moving to quash the subpoenas, have hired their own expert witness who is picking apart the RIAA's expert testimony.
Security expert Jayson Street's declaration (here online as a PDF) doesn't contain much that's novel to computer-experienced people. But he does appear to be trying to educate the judge on the technical uncertainties of things like mapping IP addresses to individual people. This is a key claim in the Cartel's subpoenas and they're routinely given names on the basis of what Street calls errors of fact.
Even if the judge is willing to accept that assertion he may still allow the subpoenas to go through. After all, the defendants might still raise this objection at trial, should they choose to fight it. Realistically, though, the cost of such a fight far exceeds the cost of simply paying up and the rewards are dubious even if you're willing to go to the lengths Tanya Andersen has gone to, counter-suing for malicious prosecution. The hope is that the Cartel get blocked from using this tactic entirely.
The first one is probably good news for all digital-music listeners, as it concerns patents on MP3 compression technology. Judge Rudi Brewster threw out a jury verdict and the associated USD 1.5 billion award against Microsoft. The loser here is Alcatel-Lucent, the plaintiff, who claimed that Microsoft had violated its patents; Microsoft claimed it had licensed the patents. Alcatel-Lucent plan to appeal; the judge plans to order a new trial on the second disputed patent. According to Eric Bangeman's note on ars technica, had the award stood the plaintiffs might have had a case to go against basically anyone else who makes a digital audio player.
Meanwhile, in the "not with a bang, but a whimper" department, Microsoft asked for a 30-day postponement in the start of trial proceedings in its long-running dispute with Eolas. As you may recall, Eolas sued nearly eight years ago on the basis of a 1998 patent it claimed covered browser plug-in technology. Fast-forward to 2003 when - contrary to the incessant Internet punditry about obviousness and prior art - the verdict came down about half a billion against Microsoft. Oops.
Of course technology doesn't stand still - IE6 came out and used a different plug-in technology than the ActiveX controls Eolas claimed were infringing. Microsoft has also been fighting this on the legal front, including instituting a separate challenge to ownership of the patent. Based on the US's first-to-invent patent standard, different from other countries' first-to-file standard, it may be possible for Microsoft to show it invented the technology covered in the Eolas patent in which case it would be given ownership of the patent.
Or they could just settle, like I said they would back in 2004. What concerns me is not that settlement but what will follow and whether this patent will be wielded against other browser manufacturers. Props again to Eric Bangeman, whose link-rich summary on ars technica helped remind me of the timeline in this case.
There have already been many thousands of words written about this and will likely be many more. Heck I might even write a few myself. But sometimes a picture captures it better. Well done, Iliad: http://ars.userfriendly.org/cartoons/?id=20070812
[W]e will not allow the minimum fee issue to be used to force an agreement that mandates DRM technology and fails to respect the established principles of fair use and consumer rights.
Laudable sentiments, though it's unclear to me how exactly they plan to not allow such a thing.
Blockbuster has been moving aggressively the past year or so to combat the rise of Netflix and that potential threat to its retail business. Physical stores have loosened rental terms and lowered prices, Blockbuster has created its own mail-oriented rental service (called "Total Access") and now is moving to get a foothold in the nascent legal movie-download industry.
Blockbuster has been courting Movielink for at least most of 2007 but couldn't come to terms earlier. Current plans seem to be to continue to operate Movielink as a separately branded subsidiary but that won't last. Blockbuster has to integrate its offerings to maximize customer convenience in part because that's what Netflix bases its service around and in part because other competitors aren't going to sit still.
According to the AP story - here on Forbes.com - Netflix remains larger in absolute terms, but Blockbuster is growing faster. At this point I think the market for home movies is far from tapped out and both players should grow significantly, as well as seeing stiff competition from new entrants.
There are a few bands whose music is famously not available through iTunes. One of those, the headbanging legends AC/DC, has decided to do an exclusive deal with Verizon's online music store.
In writing about this deal for PC World, Tom Spring at first seems to want to make this out as a big deal, saying that "Record labels and artists are starting to stand up to Steve Jobs and iTunes". No, sorry. Smart musicians and labels do not cut off their noses to spite their faces. iTunes is the place to sell music right now and if you're not there you're not selling as much as you could if you were. Spring himself notes that Verizon isn't selling singles or user-created mixes. If you want this music you have to buy whole CDs and by the way you have to pay two bucks more than you'd have to pay to buy the same CD from Amazon.
And this is hurting iTunes exactly... how? Not at all, really. By the end of his blog entry Spring is back to pointing out that Apple is doing one thing well: making it easy for consumers to buy downloaded music. Labels may chafe at the fixed song pricepoint and certainly would rather have the whole thing locked up in tighter DRM chains, but for now iTunes represents the best legal deal for consumers buying big-label music.
MercExchange has utilized its patents as a sword to extract money rather than as a shield to protect its right to exclude or its market share, reputation, good will, or name recognition, as MercExchange appears to possess none of these.
The difference between using a patent as a sword (to stop someone from doing something) versus as a shield (to protect something you're doing yourself) is often glossed over in discussion of the value of patents. In my opinion it's a fundamental distinction and I'm glad to see it getting recognition.
Over on art technica, Eric Bangeman has a nice writeup including a bit of the back-history (this case goes back over 10 years) and some other choice and cutting verbiage from the judge directed against MercExchange and how it has behaved in this case.
Mahalo is a new "human-powered search engine," which means they hand-craft pages on popular search topics. Each page contains a mixture of tips, how-tos, and links. In a way it's kind of like wikihow on steroids, with less instructions, prettier graphics and often higher quality info and off-links.
They've just published their alpha version of the "How to Download Free Music" page. It features a prominent warning about copyrights and a link to the RIAA right at the top.
Much of the early page info focuses on MP3 Blogs, but if you scroll down there's detailed information on torrents, including how to install and configure clients, how to get around firewalls, and even warnings about honeypots and TorrentSpy. All in all one of the most extensive and best-written pages I've seen yet from Mahalo.
(Full disclosure: at least two of my friends work for Mahalo but I have no financial stake in the company and neither of them wrote this particular page.)
Guerilla artist Banksy has a UK-based Web site, with images of his indoor and outdoor work, a (disturbing) manifesto, and a "shop" in which images are offered for free download.
Courtney Bennett from the Future of Music Coalition sent me a pointer to their 7th annual Future of Music Policy Summit. Registration is now open at: http://www.futureofmusic.org/events/summit07/
The NY Times has a very nice piece on the musician currently known as Prince. It discusses the artist's work in taking control of his career, his music, and how he's using many highly unconventional channels to connect with his fans. If there's a model for how to stay rich and popular in the 21st century as a performing/recording musician, Prince just might be it.
Pareless's piece notes that Prince's career is entering its third decade, a time when most pop performers have long-since been relegated to the "interesting historical relic" category. Prince is still wildly popular, playing to sell-out crowds pretty much everywhere. He's done some pretty inventive things, not least of which was cutting a deal with the British paper The Mail on Sunday to publish his “Planet Earth” CD as an insert. Starting next month he'll play 21 shows (all sold out it seems) at which the ticket price includes a free copy of the CD. These are not tiny clubs, mind you. These are 20,000+ seat arena shows. He did the same thing in 2004 for the "Musicology" CD.
These moves are giving the established industry migraines. Retail outlets are screaming. Pop chart compilers, caught by surprise in '04, changed their rules so they don't have to count the 400,000+ copies of "Planet Earth" Prince will sell next month in their computation of "top selling" CDs. This is, of course, a crock since fans paid money and got a CD. Sony Music had a similar hissy fit and decided not to release "Planet Earth" for retail sales in the UK after the giveaway.
It's not the first time Prince has had a public spat with a record label. He's accused his labels in the past of holding back music he wanted to release and had a big blow-up with Warner Brothers Records in 1996. The quintessential name change for which he's jokingly known ("the artist formerly known as Prince") occurred because "Prince" was under a contract to a label. Once that contract expired he picked up the name again.
I'm not personally a fan of his music nor of his stage shows. But I continue to bang the virtual drum for more artists to explore more ways to connect more music to more fans and you have to admit this man has gone a long way toward making that happen.
It is true that SoundExchange, the entity charged with collecting the Cartel's blood money, did offer better rates at the last minute. As Eric Bangeman wrote, it appeared that having Congressman Markey call the parties to sit down at a roundtable had some effect. Naively one might think that SoundExchange would rather deal than fight, particularly not wanting to get into a public fight over Congress's proposed "Internet Radio Equality Act."
Those who got the reprieve, such as Tim Westergren of Pandora radio, were publicly sure that the outcry from listeners had made a difference. Westergren clearly had no idea who he was dealing with.
Within a day of the initial joy it became clear that there would be a price to be paid. What SoundExchange and the rest of the Cartel want is to get Net radio locked into a DRM straightjacket. And now they have the threat of these fees to compel cooperation.
I believe the technical term for this is "extortion" but perhaps some lawyer can tell me otherwise. I mean, that's what you see in Hollywood films, right? The evil mastermind offers the hapless sucker a great deal. Sure, we'll get you out of your troubles. Just do this one little thing for us...
"SoundExchange has offered to cap the $500 per channel minimum fee at $50,000 per year for webcasters who agree to provide more detailed reporting of the music that they play and work to stop users from engaging in 'streamripping'
So it's that simple. Become our agents in preventing people from recording Web radio streams or face the financial axe.
Fisher's piece on ars today paints a picture of a pissed-off Digital Media Association claiming that SoundExchange never mentioned DRM during the roundtable discussion. No duh, guys. Did you forget you were dealing with venomous snakes in suits? These are the guys that sue children living in housing projects purely on principle. They'd rather kill things they can't control than make money off them. They're well aware that the Audio Home Recording Act of 1992 permits you and me to make noncommercial recordings of broadcasts and since they've failed to get the law changed they're going to back-door it if at all possible. A few weeks ago I wrote some speculations on the Cartel's ultimate motives in all this. One of the possibilities I thought likely was that their goal is control. By hook or by crook, and usually both, they want control over what you and I do.
According to Anne Broache's entry in the CNET news blog, the war of words is escalating, with both SoundExchange and DiMA doing the "he said", "no he didn't say" thing. This could be serious or it could just be pre-negotiation posturing. Both sides say they intend to continue meeting.
So far I haven't seen anything from Markey, which leads me to believe it's posturing. If he thought one side or the other was seriously reneging on what they'd said in front of him he would probably have to issue a statement at least, or risk being made to look like a fool or a dupe for one side or the other.
Payola, or pay-for-play, is a scheme by which inducements such as money are used in exchange for preferential treatment and value such as airplay. So far so good. Now the question is: if I have to give up money you would ordinarily pay me in order to get on the air, is THAT payola?
Earlier this year Clear Channel settled a payola case with the FCC. They paid some fines and agreed to provide free air time as a form of compensation for independent artists whose music had been shut out by the payola scheme. However, it turned out that artists wanting to upload their MP3s to be played during these free broadcast hours had to agree to give up income that would normally have been theirs for airplay. The FMC is asking the FCC to issue a declaratory judgment that this arrangement is functionally equivalent to the artists paying for their songs to be played.
I guess we'll find out next week which Webcasters are hosted outside the US and thus potentially able to escape this crash-and-burn. The Internet Radio Equality Act of 2007 is still alive and slowly wending its way through Congress but there's no hope it will arrive in time to save the present landscape from clear-cutting.
The ads certainly have a tinge of surrealism (or as Sartwell would put it, dadaism) in that they don't contain the usual political speecifying or promotion of the candidate. In fact, they contain no dialog at all. The candidate's Web site is superimposed on the image, which is how you know it's a political ad of some kind, but the video consists of... well, Mike Gravel staring at the camera wordlessly for a minute, then walking off and chucking a rock into a lake.
Yes, really. Go watch it for yourself. There's another one called "Fire" that mostly consists of a camera steadily pointed at a campfire for seven or eight minutes.
Sartwell waxes rhapsodic about Gravel's avante garde approach to political advertising. I was most strongly reminded of John Cage's 4'33" which was avant garde for its time. I don't think this art form is likely to catch on with other candidates but it sure would be fun if it did. If nothing else, it'd be nice to see them shutting the heck up for once when a camera is pointed at them.
It's almost cute how some people still think actual facts are at all important in the Copyright Wars. I confess I used to be part of the reality-based contingent as well, back in the day. I used to take great glee in pointing out various facts that contradicted the RIAA's propaganda about music sharing. I did eventually come to realize that the facts weren't relevant. It was and is about control of language, thought, and behavior. Still, some people keep trying to make it be about facts.
Take, for instance, Greg Sandoval over at CNET. His analysis piece on Michael Moore's latest film, Sicko, shows that even though the film was widely distributed on the net prior to its theatrical release that doesn't seem to have harmed the movie's opening.
Of course the copyright attorneys can only respond with "no, no, no." Acknowledging any other reality would be at the very least massively inconvenient. But really it's beside the point. Whether sharing and word-of-mouth hurt or helped Sicko isn't the point - the point is that it wasn't something the Cartel engineered and controlled and therefore it must be bad. C'mon, Greg, get with the times.
According to Jacqui Chang's piece in ars technica, the reason that AllofMP3.com shut down was nothing less than a threat to block Russia's admission to the WTO. As one of the largest trade organizations in the world, WTO membership is highly prized by many nations. To put a single Web site up as a blocking criterion for admission into a huge multi-national trade body, AND to get a law written specifically to take down that site, shows how the Cartel's power has grown.
In the past couple of weeks I've written about how much less power the Cartel has outside the US than it has inside, and how the Cartel's strategy may be a far-reaching grab for power over what people can and cannot do. This move certainly seems to support the notion that not only are they trying for that epic power grab, they're succeeding.
Classically, the definition of insanity is doing the exact same thing over and over, expecting different results. By this definition the Cartel's jihad against sharing is insane. They've sued thousands of consumers into a vile kind of mutual embarrassment, and a couple dozen companies into bankruptcy. Yet sharing continues unabated. Some would say it's on the rise.
So if we postulate that the Cartel are neither stupid nor crazy, the question remains: why are they pursuing a strategy that is not only failed but clearly counter-productive in simple cash-value terms. (Of course one could ask the same question about the US's War on Drugs or various other governmental policies, but this is Copyfight, not Big Politics, so we won't ask those questions.)
For an attempt at some answers we now have a nice think piece by Greg Sandoval on news.com. He notes the usual facts, plus this week's addition to the "Copyright Graveyard" - TorrentSpy and IsoHunt, which agreed to block links to copyrighted material as part of an apparent attempt to stay the hounds at the legal door. Sandoval then turns to the question of why the Cartel continues to pursue an adversarial legal strategy.
One possibility, which the Cartel would like us to believe, is that they have a secret and very coherent plan to sue everyone into obedience. See above where we ruled out the possibility that they are in fact this stupid. Moving on.
A third possibility is that this is really a battle for control. Lawsuits are more or less rear-guard and distracting acts. The true agenda is for the Cartel to get the final say in what behaviors people can and cannot have. Ira Rothken, the lawyer representing TorrentSpy, points out that the Cartel have gone from suing hosts to suing software makers to suing network and link providers. If the original commandment was "Thou shalt not share" then the current incarnation is "Thou shalt not point out that someone else is sharing." That's a pretty scary reach and Rothken might be right. Or it may be that the Cartel are just evolving in their understanding of how sharing happens.
Finally, and most frighteningly, it's possible that the Cartel are gambling on a very large jackpot. Statistically speaking, if you bring enough cases you're going to get some judges that favor you. And one day, one of them is going to issue a far-reaching order like the one Chooljian put out in the TorrentSpy case. And if something like that happens, you can then run with it all the way to SCOTUS if need be. If something like that becomes the law of the land then the Cartel will have won the jackpot and all the money it has spent in lawyer's fees since Napster will be thought of as a prudent investment.
You may recall that Vista contains the first commercial incarnation of MSFT's built-in control facility for restricting what programs and data can be installed and run on PCs. Virtual machines can unintentionally fool, block, or thwart various of the checks that DRM software uses. Lai references unnamed "analysts" to suggest that concerns over DRM circumvention were behind Microsoft's sudden change of heart. Apparently they were about to relax the prohibition on virtualizing Vista Home editions then suddenly stopped.
Not so fast, says Ken Fisher over at ars technica. He lists a couple of reasons why he doesn't believe Lai's theory, not least of which is that there's no technical reason blocking virtualization now. It's purely a license-terms issue.
Fisher thinks it's a step in the Microsoft-Apple war, with MSFT trying to defend its OS revenue stream. Could be. I do think Fisher's points are telling, to the extent that those of us who care about DRM and what Microsoft are doing in that area can safely ignore the virtualization debate.
As part of the deal they are supposed to give free air time to independent artists, presumably to make up for these artists being shut out by the pay-for-play scheme. However, "free" is a word that Clear Channel doesn't seem to understand. In order for artists to get their submitted MP3s into consideration, they have to sign away all rights to the track. To Clear Channel. Forever.
According to the NPR story broadcast (the only coverage I could find on this) some artists are taking the deal with the devil, figuring that the loss of one song is nothing compared with the promised land of big riches that will come from exposure on the conglomerate's mass of broadcast stations. Others aren't so happy with the prospect.
Personally I don't understand how a performer could accept this. Imagine getting popular for a Clear Channel-played tune then having to explain at every performance that you can't play that song people know you for because you no longer own the rights to it. And it won't be on your forthcoming CD either...
So far a number of big participants have signed up, including Live365, AccuRadio, and RadioParadise.
Most interesting to me is the broad spectrum of participants, ranging from the Christian-rock conservative Born Again Radio to the aggressively liberal Head-On Radio Network. This really is a case of the big corporate purse-holders crushing the small and independent, across the political spectrum.
Back in 2001, the US Supreme Court issued a decision in a case called New York Times v. Tasini. In this decision the Court ruled on rights of freelance photographers such as Tasini to control or be compensated for works (photos) that were sold for one purpose, such as print, and ended up in an archive later to be used for another purpose such as CD ROM publication.
Now of course the Times wasn't the only entity doing that. Prominently the National Geographic published a CD ROM archive and promptly got itself sued by several people who felt their works had been used in unauthorized and/or uncompensated ways. Because of the locations of these suits a couple ended up being settled in different US Circuits. For this discussion consider the Second and Sixth Circuits
In a 2001 decision known colloquially as Greenberg I (formally as Greenberg v. National Geographic Society I, 244F.3d1267) a panel of the Sixth ruled in favor of photographer Greenberg, holding that the Geographic's archive violated his rights. However, the Second had ruled the opposite way in other cases against the Geographic, basically saying that what the magazine had done was legal and no further compensation was due.
In the normal course of things rulings at the Circuit level stand, even when they're in conflict, until SCOTUS issues an opinion that resolves the differences. In fact, conflicting Circuit opinions are a major factor in the decision to grant review of cases that are appealed to SCOTUS. It's also possible for a full Circuit court to reverse one of its own panels, potentially resolving the difference. The Sixth has not done so, possibly because the judge who wrote the Greenberg I opinion is regarded as something of an expert on copyright law. So far so good.
Now comes the curious case: earlier this month in an opinion informally called Greenberg II (formally Greenberg v. National Geographic Society II, 97-03924-CV) a different panel of the Sixth reversed the earlier panel, pretty much to everyone's surprise. "Curious" is polite lawyerspeak for what you and I might dub "WTF"? WTFF?
First off, the new panel of the Sixth includes a visiting judge from the Second, who wrote the new decision. That's a bit odd.
Second, the rules of the game as it's generally played are that one panel of a Circuit is bound to abide by (and certainly not overtly reverse) previous panels' opinions unless the full Circuit or SCOTUS has something to say on the matter.
Which brings us back around to Tasini. According to McDonald's column (I haven't read the original opinions) the new panel claims to be relying on SCOTUS's reasoning in the Tasini case. If they're right, that case gives them grounds to overturn Greenberg I. But here's where it gets more curious. McDonald quotes several intellectual property lawyers as saying that Tasini really isn't on point here. It's dealing with a separate set of facts. And to make matters even more curious the judge in Greenberg II appears to be relying not on the formal decision of Tasini itself but on explanatory comments (called 'dicta') that the Greenberg II judge feels give "tacit approval" to deciding the case in favor of Geographic.
So what happens now? Well, Greenberg could throw in the towel. It's six years on and he hasn't seen a dime - a 2004 judgement of $400,000 led to the appeal that was decided in Greenberg II. I hate to think how big his legal bills are by now. If he soldiers on there's an obvious appeal to an en banc Sixth and who knows how that will turn out. If it goes against Geographic it seems likely they'd ask SCOTUS for a ruling that would presumably clarify the disparate Circuit views. However, the Court denied certiorari on Greenberg I so they might not take this one, either.
Plagiarism is necessary. Progress implies it. It closely grasps an author's sentence, uses his expressions, deletes a false idea, replaces it with the right one.
Fisher's posting dissects recent pronouncements by NBC general counsel Rick Cotton, who apparently feels that it's misguided for law enforcement and the FCC to focus on actual real crimes. Instead these public servants should be serving the interest of the corporate profit margin by focusing on (drumroll please) piracy!
Oh, and that silly net neutrality thing? That's not needed either. Just shut down all those pesky individual users and small sites - they're nothing but pirates anyway. Once they're shut down, net congestion will magically disappear and NBC will be free to shove its content down big empty pipes at all of us.
And of course, ISPs should all be joining ATT in its war on customers... err, pirates. Maybe if we say "piracy" often enough it'll drown out the hollow booming of empty heads making noise.
Also, lax copyright laws, laissez-faire law enforcement and LOTS of bandwidth. Anyone? "What is Stockholm?" Correct!
Once upon a time, the Cartel made a big noise and destroyed Napster (1.0). I pointed out then that people shared music before Napster and would do so long after it shut down. Points to me for stating the obvious. Now Andy Greenberg is trying to state the same obvious truth in respect to the sharing of movies and other digital media.
His story for Forbes highlights the boasts of BitTorrent repository ThePirateBay.org, which trumpets the many benefits of being hosted in a non-US location. Here in the US the Cartel may have its armies of lawyers and Congressional sock puppets. Over there, they get mocked.
Greenberg's point is what I've called "smashing mercury with a hammer" - the Cartel can swing a big hammer and make a dramatic flash when it lands a blow but the end result isn't an end to sharing. It's just a scattering of the same material around to new locations. The Cartel can sue YouTube/Google until its lawyers retire fat and happy but that won't matter one iota to all the YouTube clones that are popping up faster than any one case can progress through a court system.
This arms race was lost nearly ten years ago, but the Cartel soldiers on pouring money into lawsuits and technology that three high school kids can defeat as a summer project. Imagine if they'd put those resources into building new business models and winning customer loyalty instead. Anyone? "What is drwex's fantasy outcome of the Copyright Wars?" Correct.
The implications of this are potentially staggering and the order has been stayed pending appeal. Part of the complaint here is that this ruling would force defendants to create documents they would otherwise never have. That alone is unprecendented, to my knowledge. Additionally the implications for the use of all kinds of digital services are huge. Imagine applying this kind of logic to VoIP RAM traffic - who needs to bother with all that complicated paperwork for getting a wiretap?
Much of the concern is over the privacy implications. Many services, from FedEx and AmEx to Internet registrars offer the ability to do business transactions without revealing personal information. Entire businesses exist purely to act as trusted third parties so that people can be confident and confidential at the same time. If this ruling is upheld all that goes into the dumpster.
And while there are some standards to prevent discovery proceedings from turning into open-ended fishing expeditions, those standards are much looser and less subject to review than requests for subpoenas and other current legal methods of obtaining information in an adversarial proceeding. Creating this weapon of mass discovery would have the side effect of weakening all of those protections.
(In an interesting aside, the CNET story notes that the USD 2 billion figure of losses from online activity is merely an MPAA estimate, not the 'fact' that the LA Times story made it out to be. Shame on the Times for shoddiness - maybe they can take lessons from CNET.)
The article is teeth-grindingly sycophantic towards the Cartel, using phrases like "Few doubt that piracy is a significant problem." Actually, most people doubt it, if they even think about it. I venture to guess that if you asked the average person they don't think that sharing is a major problem. The story also quotes nice big numbers for "losses" to "online piracy" without ever sourcing the numbers nor bothering to tell us what "losses" mean when you're not describing the sale of faked DVDs.
Bah, I'll expect Ars Technica or someone similar to do a better job with the story, hopefully soon.
Long-time readers of this blog may remember more than a year ago when I started listening to Howard Stern because he seemed to be the FCC's favorite whipping target, including being subject to hidden standards, retroactive censorship, and other such idiocy. Regardless of what you think of the man or his show, I expect you'd agree no one should be subject to that. Part of Stern's frustration and what drove him to satellite radio was that his then-employers wouldn't stand up to the FCC for him.
Well, according to Mark Stern's blog on PC World, Fox Broadcasting has done what Viacom wouldn't and gone to bat for bad words. Specifically, the use of "fleeting" expletives. The judge agreed that the FCC's policy made no sense and was probably unconstitutional. Yay! Now to wait for the appeal.
The blog "The Consumerist" apparently has its readership vote for the worst company in America. The blog writers then suggest ways to improve the customer service at the nominated company. Why do I know about this? Because this year, the readers picked as worst the pointy end of the Cartel's jihadist sword: the RIAA.
Of course, the RIAA isn't really a company, it's a trade organization. And customer service really isn't on their agenda. What is on their agenda is passing favorable legislation, like laws creating the crime of attempted piracy. In order to pass laws, you need sock puppets... excuse me, members of Congress. Who, in turn, need money. Lots of money, something the RIAA has and gives out.
Consumerist has therefore published a list of "50 Politicians Who Take Campaign Money from the RIAA", along with their contact info. Because we can't influence the RIAA directly but in theory we can influence these fifty people.
The amounts listed are really surprisingly low - Orrin Hatch got a mere USD 6000, a pittance for this once-powerful sock puppet's dutiful service. There are also some disturbing names on the list, such as Ed Markey, whom I'd expect to have better sense than to accept money from extortionists.
I agree with Ken Fisher - the big question is what Apple thinks it's doing with this info. They may be thinking they can track the provenance of purchased tunes that "escape" but unless there's a hidden checksum somewhere I can't see how they could show that the embedded account info was genuine.
If you think the sentiment is a little oddly expressed, just wait until you watch the video. Go on, I'll be patient. It's ten minutes, but really worth your time.
The original posting of A Fair(y) Use Tale comes from the Stanford Law School's Center for Internet and Society. The creator... or should we call him collector? Professor Eric Faden of Bucknell University covers the basics of copyright law and fair use in the US, through a carefully assembled montage of snips from Disney.
Be sure to go back and read the FBI notice at the front, if you didn't get it the first time.
Microsoft is clearly conducting another of its FUD campaigns and the fact that they've gotten some name companies to go along just makes it more depressing. Don't get me wrong, I'm reasonably sure that there's a violation or twelve in open-source projects. With the state of software patents today you pretty much can't write any program without violating someone's patent on something. But as usual MSFT is blowing it out of proportion and making wild-ass claims in an attempt to scare people with real money into giving some of it - and the concurrent legitimacy - to Microsoft. This whole thing should go away, but probably won't. Considering how long and often Microsoft has been on the losing side of patent suits you'd think they'd have a little more sense about this.
I have no illusions that Gonzales has any sense, however. The man is so very clearly going down in flames over the firing scandal that anything he does now is at best a distraction. If you want to find the humor in this one, note that the draft bill requires that Homeland Security notify the RIAA. No other copyright holder - not even the MPAA - gets such special treatment. OK, pop quiz time: exactly who wrote this idiot thing? All the subtlety of a moose in snowshoes, really.
According to a comprehensive piece on Ars Technica, those decisions are now out. The Trust had to negotiate a complex maze of ownerships while balancing Cartel desires for absolute control (e.g.a proposal to eliminate downloads altogether) with clear viewer desire for un- or at least less-fettered access.
Reading Timmer's piece as well as the source BBC Trust announcement, it appears they've agreed to split the baby. Some things are not going to be available for download, some will have time-locked short use DRM, and some things will have more relaxed controls. The Trust also agreed to revisit at least some of its decisions in two years to evaluate how they're working out.
The Trust also admitted that public respondents were overwhelmingly opposed to a platform-specific DRM system, such as Windows Media. Despite that, the system remains, but with a promise to revisit the issue every six months. Clearly the Trust is aware of (and seems to be in negotiations with) platform-neutral vendors such as Real. But for now it's WMV or nothing, so WMV it is.
Kopytoff quotes Digg co-founder Kevin Rose as saying:
You'd rather see Digg go down fighting than bow down to a bigger company. [...] If we lose, then what the hell, at least we died trying."
Which is noble sentiments, don't get me wrong, but misses the point. Digg isn't creating this controversy. Nor are Digg's 'readers' saying "keep on writing about this." Digg's readers are its writers and they're saying "stop messing with my/our stuff."
There are serious challenges to these kinds of models. The line between a 'crowd' and a 'mob' is very thin and organizations with deep pocketbooks and high-priced legal staffs are certainly going to continue to weigh in.
Looked at simplistically, a song is a string of words set to music. It's quite possible to write nonsense songs or songs containing nonsense words - just ask any parent of a small child.
So if a song happened to be a series of words and not-quite-words (hush you Scrabble players, "eff" is not a normal word) then that'd still be a song, copyrightable and protected in the usual ways, right? This is sort of bad news for the Cartel, because in this case the sequence of lyrics is the sung-out version of the key used to crack HD-DVD encryption. Oops.
I was strongly reminded of the "Gallery of CSS Descramblers" that appeared in response to the legal requirements to take down the DeCSS executable code tools. The Gallery contains many versions of the De-CSS algorithm, including at least one sung.
Code that cracks HD-DVDs probably isn't redistributable. Nor are you likely to be able to publish a Web page saying "Here's the key you can write into your own code to crack HD-DVDs." But a song? Song lyrics? Good luck getting takedown orders for those.
"Oh Nine Eff Nine" is currently available on YouTube at: http://www.youtube.com/watch?v=L9HaNbsIfp0
In the past it was fashionable to assert that the Internet treats censorship as damage and routes around it. In the current era we might say that "Web 2.0 treats censorship as inspiration and creates performance around it."
Witness the attempts by the AACS Licensing Authority to keep HD-DVD and Blu-ray cracks off the net. The censors and the crackers have waged a running battle that reached something of a peak this week, when a Digg entry containing the 09 F9 crack was posted. Digg received a quick DMCA takedown notice and away went the entry.
But Digg isn't a sole-author site. Its content, like that of many Web 2.0 sites, comes from its users. Those users were inspired by this act of censorship and simply bombarded Digg with submissions containing the key sequence. According to Eric Bangeman in Ars Technica:
For a few hours, Digg's front page consisted of little more than a succession of links to the hexadecimal HD DVD key.
A good Web 2.0 site listens to its creators and Digg is no exception. Within hours the site issued a pledge that it would not kill stories or comments containing the key. I don't think it's possible to have a clearer distinction between the old (Cartel) business model and the new (Web 2) model. The old model treats customers as enemies to be censored, sued, and publicly pilloried. The new model treats customers as valuable assets, key contributors, and policy makers.
Now let's see which model wins in the marketplace, shall we?
Ars Technica is reporting that the US Copyright Board has extended by two months the date on which its new regressive (and retroactive) fee schedule is to go into effect. The new date is July 15, 2007. So maybe there is time for Congress to act. This is not a lot of time, but in theory the Internet Radio Equality Act could be passed and signed in these two months, restoring a flat-fee structure that is compatible with the non-profit segment of Web radio.
As before I urge my US readers to contact their Representatives to sponsor and push for quick passage of this bill. You non-US folks can sit back and laugh at we fools and the fools that govern us.
Readers may remember that I've pointed at PLoS, the Public Library of Science, from time to time in this blog. In an earlier life I was a scientist and a researcher, and I strongly believe that science works best when its results are freely available for wide public dissemination, use, and scrutiny. Apparently the noted science publisher John Wiley & Sons does not share this sentiment; they'd rather lock up the science and have people pay high prices to look at it -- have you seen journal subscription fees these days? Dear gods.
In this specific case, JW&S are asserting copyright in a table and graphs, not even a whole publication. This raises some questions about what constitutes fair use in scientific publication.
As reported by Dave Munger in Cognitive Daily, JW&S sent a cease-and-desist letter to a blogger compiling information about antioxidants in fruits. She had used one table and one figure, then removed them in response to the letter. They're back now in part because the blogsphere objected, but all JW&S did was grant specific permission, not admit that the category of figures is fair-use-able.
Munger delves into the issue, and comes up with the classic "it depends"; don't all questions about copyright and fair use end that way? There really don't seem to be any good guidelines on whether a figure from a journal article is a copyrightable entity in its own right (as a photograph would be) or whether it's more like an excerpt, for which there are well-known fair-use rules.
Unfortunately, his proposed solution - recreate the figure from scratch - doesn't really avoid the problem he thinks it does. A figure created in this way is pretty clearly a derivative work, since it's derived from the data and figure in the original published article. As a derivative work it's still subject to the restrictions of copyrights and the questions of fair-use exemptions still apply.
Proposed legislation - the Internet Radio Equality Act - would roll back the Copyright Board's regressive new fee structure, giving us back the flat-fee revenue-based method that has let the industry grow this far. The proposal is for a flat 7.5% of revenue through 2010.
The bill appears to be largely the result of a successful Internet campaign that, according to the CNN story linked above, has generated over 400,000 emailed complaints to Congress about the new fees. That's a good number both in terms of its impact on this discussion and in terms of showing that Internet radio is developing a significant, motivated, audience.
Unfortunately, the bill doesn't solve anything in the immediate future. Even if it passes and is signed quickly its implementation is still months away. Something like a court order would be needed to stay the implementation of the new CRB fees in about two weeks, an event that will likely cause most non-big-commercial Web radio to go dark, even if only for a while. That could be significantly harmful and might be enough to kill much of the alternative streaming community in the US regardless of what Congress does.
Ars Technica has a nice piece talking to Steven Page, singer and guitarist for the band Barenaked Ladies, on the topic of compulsory licensing. I think a pair of quotes sums it up nicely:
Page: [compulsory licensing] would allow consumers access to all the music they want and would ensure that artists get paid.
US Register of Copyrights, Marybeth Peters: this [is] a bad idea.
Yes, Ms Peters, we knew the Copyright Office has no interest in consumers getting music nor in artists getting paid, but you needn't have put it so bluntly.
But Copyfighters will probably remember him best for his dogged refusal to understand that new media could be made part of new business models. Famously, he testified before Congress that the new recording technology VCR would do to movies what the Boston Strangler did to women. Of course today we know that movies make more money from video (DVD) distribution than they do in theaters.
There are a number of obituaries appearing and, in the tradition of not speaking ill of the dead, most laud his accomplishments. I can't help hoping, though, that the passing of the old guard will open up the possibility of a newer and more cooperative relationship emerging.
Really what needs to happen is that Congress needs to intervene. In an interesting twist, writes Olga Kharif for Businessweek's Tech Beat, the CRB ruling is drawn quite broadly, meaning that for the first time fees will apply to "any company broadcasting music over cellular networks." Kharif seems to think that the big cell providers will not want the Cartel chewing away at their profit margins and thus will move Congress to act. Personally, I think they'll just pass the costs on to consumers and call it a day.
Interestingly, this is a US-based decision. Web radio elsewhere in the world can continue to thrive. It's unclear to me whether those non-US stations would be required to block me if I tried to tune in from a US-located IP address.
So what do fans do? Well, fans appropriate. They imitate their favorite pop stars. Always have, probably always will. Only now we're doing it in the age of YouTube, so we get things like The OK Go Phenomenon, and The OK Go Phenomenon, Volume 2.
Because now you don't just do this with a few friends. You do this with a few friends, and post it. And find others who do it. And someone takes all those postings and creates a mashup of THAT. The 'phenomenon' is a meta-commentary on the popularity of the band and video as well as a form of creative art reflection that wasn't really possible without the technological underpinnings.
Most new art forms tend to begin by imitating previous forms. If YouTube and its contemporaries are media for the creation of new art forms then what we're seeing are just the first baby steps, and already they raise interesting questions of imitation versus originality. See, for example, what happens when the 'phenomenon' spins off what can only be called a derivative work: Wakamatsu and Fecteau ice dancing.
As I said at the start, I find this kind of thing fun and funny. I'm not sure it has any significance, yet, but I'm quite sure it will grow some significance, and probably soon.
Today's update on Radio Paradise has several links people can use, including an online petition and links people can use to look up the names and numbers of their Congresscritters.
For quite a while, digital (Web) radio has had to pay significantly higher performance royalty rates than analog broadcast services. In effect, analog radio gets for free what Web radio pays through the nose to stream. That has hampered the growth of the industry and stifled any number of free, independent and likely new creative Web radio initiatives. But it gets worse.
On March 1 of this year, the Board issued new rates and decided to base those rates on a "per play" computation scheme championed by (wait for it...) the RIAA. The computation itself is based off an assumption of mass audience and significant commercial revenue. If you're a big Clearchannel station the assumptions behind this new fee schedule make total sense.
What can we do? I'm honestly not sure. I know that ratepayers affected by the Copyright Board's decision have a time period to appeal. RP asked for people to blog about it, digg it, make the public aware, and so I'm doing that. I don't see any obvious mechanism under which the Copyright Office is collecting citizen comments - perhaps a message from Congress is required?
Once upon a time college campuses were plagued by a particularly nasty wave of attacks and harrassment aimed at women. As a result, physical self-defense classes for women sprung up on many American campuses. Women were taught a lot of self-awareness, some martial arts, and in general became less victims and more participants in their own security.
I was reminded of this by an announcement by the newer more efficient Cartel jihad that they have plans to sue more college students in the next three months than they have in the preceding three years. It seems like the appropriate response to this kind of mass assault is a series of legal self-defense seminars for students.
According to the AP wire story (here on SiliconValley.com) the RIAA have sent surrender terms... err, early settlement offers to hundreds of college students. Just as the new efficient machine is attempting to enlist ISPs as part of its enforcement arm, this part of the effort attempts to dragoon university officials who are supposed to do the Cartel's dirty work and associate IP addresses with students in order to expedite the process of squeezing them for cash.
Because, you know, suing customers has been such an effective strategy against music-sharing so far.
Joyce Hatto was a pianist of some note who retired from performing back in 1976, to fight cancer. She lived a good long time after that retirement and enjoyed a degree of notoriety in the last decade of her life due to the release of a wide variety of new recordings on her husband William Barrington-Coupe's tiny label Concert Artist. As the story in Gramophone puts it
To love Hatto recordings was to be in the know, a true piano aficionado who didn't need the hype of a major label's marketing spend to recognise a good, a great, thing when they heard it.
There were doubters all along, but the recent break in the story seems to have come from a listener who put a "Hatto" CD into his iTunes, which identified it not as Hatto but as a Liszt recording by a wholly different pianist. More such reports followed.
Gramophone followed up, first by asking a human classical expert to listen to the two. When that expert claimed no difference they sent the two discs to an audiologist, who found them identical. The story linked above has more details, including what appears to be a deliberate digital manipulation of at least one track to conceal its origins.
Wikipedia is keeping a "current event" section as people add information on recordings and possible sources. There appears to be evidence of what can only be classed as a massive fraud.
In some ways this is not a new story - people plagiarize and have for centuries. This caught my attention because of the involvement of iTunes and the role of digital "fingerprints" in the automatic identification of works.
Because this means I can't really point you to the best pieces of writing on intellectual property to pass in front of my eyes this month. Both appear in the print edition of Harper's Magazine, February 2007 edition. If you can still buy this issue, do it.
Inside you'll find two articles I can't possibly do justice to in a blog posting. Both are brilliant examinations of intellectual property, use/reuse, and repurposing of creative content. Both come from perspectives we don't hear often enough - the creators and users of the material.
The first piece is called "On the Rights of Molotov Man: Appropriation and the art of context" by Joy Garnett and Susan Meiselas. This item centers on a particular image - a Sandinista revolutionary preparing to throw a molotov cocktail. You can see a copy of the image on Harold Pinter's Web site.
In discussing the image Joy Garnett describes how she paints from photographs, and how her painting from this photograph went on to be used. The painting from the photo appeared in an exhibition, questions were raised about the appropriateness of use, letters from lawyers were sent, license fees were demanded, and the story hit the blogs. Garnett gives her perspective and raises questions on the issues of control around what was essentially a news or documentary photograph. Nobody "posed" for that picture - it captured a true event as real people went about overthrowing a dictator.
Then follows a response from Meiselas. She gives history and context for the photograph, shows how it became an emblem for the Sandinistas and was appropriated by them for political purposes, and finally introduces us to the actual person in the picture, whom she tracked down many years after the original photograph.
This pairing of creative views on use and appropriation is brief and poignant. I found myself sympathizing with both artists and with the notion that creative control means something as well as freedom to (re)interpret creatively.
Harper's then follows up with a stunning piece by author Jonathan Lethem called "The Ecstasy of Influence." The piece is subtitled "a plagiarism" in much the way that some things are subtitled "a novel" or similar self-descriptives. Lethem's essay is long and wide-ranging, covering many arguments that will be familiar to Copyfight readers. He touches on appropriation, literary theory, influence, and has no lack of harsh words for Disney and their attempts to create a one-way gated cultural community in which they take popular common stories and create perpetually locked content that cannot then be reused by anyone else.
Lethem's thesis is that every act of creation is actually an act of appropriation - it's just that some appropriations are more explicit than others. Even in the non-explicit cases, Lethem argues, nobody creates in a vacuum. We create out of cultural traditions and within genres that bring strong influences, whether it's science fiction novels or country music. Attempts to draw bright lines and say that one side of the line is "original creation" and the other side is "impermissible copying" are doomed and wrong from the outset. Lethem argues that modern copyright law is distorting the purpose under which the Constitution sets out the rights. In particular, copyright is supposed to exist in the US to promote useful progress. The Constitution says nothing about guaranteeing income or compensation for effort. Copyright, for a limited term, to promote progress - a general social good. Nothing to do with individual welfare, providing for authors' children unto the Nth generation, or any of that.
Lethem takes particular delight in cases where appropriation transcends traditional boundaries - he gives the example of receiving a copy of his own novel Gun, with Occasional Music that had been cut into the shape of an actual gun by a modern artist. Lethem is erudite and wide-thinking and persuasive, if somewhat scattered and not extremely coherent.
Or is he? Remember that bit about "a plagiarism?" After you've finished reading the essay, Lethem lifts the curtain and lets you see the gearing underneath. Almost all of the essay is plagiarized - copied from other sources. Lethem dissects his own collage for us, giving precise boundaries and explicit sourcing for each piece of the pastiche.
Finally, he goes meta and gives a quick overview of the notion of a collage text, of which this essay is an example. It's brilliant (can I say that enough times?) and eye-opening. In a way it's a radical view, to reject entirely the notion of original creation. In another way, it's a well-explored literary theory that has been known in academic circles for decades but that has not penetrated the Copyfight discussion in any significant way.
The blog has posted a letter appearntly leaked from the RIAA. In this letter the Cartel enforcement arm attempts to cajole ISPs into maintaining subscriber ISP records for 180 days. To make its lawsuits go more smoothly, of course. In exchange for shutting the hell up and turning over data promptly the ISP's customers get a promise of a $1000 discount for payment prior to lawsuit being filed. It's not at all clear to me why any sane ISP would sign on to this deal since it means more work and more risk for them, not to mention the exposure of being counter-sued by irate customers for turning over records.
You can read a brief summary on the lawyer's blog, and extensive commentary on the various links below the entry. The gist is still the same - the RIAA wants more suits, faster suits, more settlements, and fewer embarrassing publicity gaffes. I can't exactly blame them for wanting these things, but I'd rather they realized that they haven't made any difference in the past 7+ years of suing their customers and they're not going to make a difference if they spend another 77 years suing their customers.
That enough initials for you? The reasoning behind the decision is long and complicated, and no one is completely happy with the situation. If you want all the details, go listen to the BBC's Backstage podcast explaining the situation. What it seems to boil down to is nobody wanting to, or being able to, drain the swamp of ambiguous rights, partials ownerships, and uncertain licensings that surround the BBC's massive content and performance archives.
In an attempt to build an umbrella over the whole mess that would permit some kind of content exposure without massive groundwork, the BBC put out a new "iPlayer" software that requires the person to have Microsoft DRM. They make the argument that they evaluated a number of open standards and found nothing that met their needs. So given a choice between stasis and a limited solution they picked this limited one.
If there's a bright spot in this story, it's that the BBC Trust, which oversees the various Beeb operations, has only permitted this as a temporary solution and "...will require the BBC Executive to adopt a platform-agnostic approach within a reasonable timeframe." Let's hope that open alternatives can meet the eventual challenge.
The US House passed a bill that would establish a program to educate judges on patent law and procedures as well as allowing cases to be shuffled to judge who opt into the program. The goal is, of course, to have more knowledgeable judges process patent cases faster and more consistently. Certainly the BSA (Big Software... err, Business Software Alliance) sees it that way. However, as ars technica noted, this could just encourage more patent litigation, more patent bullying, and an "in club" of patent lawyers and patent lawyers-turned-judges.
I'm not sure one ought to pluralize DRM in that fashion, but who am I to naysay Steve Jobs?
The quote appears in a posting titled "Thoughts on Music" dated Feb 6, 2007 and authored by Jobs. In the essay he briefly covers the history of DRM-encumbered online music sales and urges people to stop pestering Apple to open up iTunes. Instead we should pressure the Cartel to sell its music online DRM-free.
Jobs asserts that if the Cartel would just do this, Apple would love to jump on the bandwagon. He further seems to be awfully naive about the Cartel's efforts to pull in all non-DRMed forms of music. Yes, they sell CDs but they're desperately trying to force people away from them. Jobs apparently has never heard of the "analog hole" and Cartel efforts to cover THAT with DRM. Jobs further seems not to understand why lockouts and permissioning are such a fundamental part of Vista, even while Apple is busy making fun of it. (MOV link)
TiVo revealed the other day that it's offering TV networks and ad agencies a chance to receive second-by- second data about which programs the company's 4.5 million subscribers are watching and, more importantly, which commercials people are skipping.
I don't think I'm particularly prescient but this surprises me not at all. I thought they were already doing it, but I can't find earlier news references. Perhaps I just read speculation and took it as given that yes, if the equipment lets them do that they're going to do it. Color me cynical, but I figure if you give a corporation a way to exploit you then they'll take it as soon as it's profitable to do so.
Oh, wait, TiVo's still swearing (on a metaphorical Bible no less) that it's not actually watching you, the individual identified viewer. They're just doing "random, anonymous" sampling of 20,000 boxes per night. And they promise to strip off all the identifying info. Which they wouldn't have to promise if they weren't downloading it in the first place, right?
I don't believe for a moment that TiVo cares about viewers' archaic notions of privacy. They've just not figured out a sufficiently profitable way to turn over your second-by-second viewing data to a massive data warehouse from which it can be picked at leisure. Being served with an ongoing stream of subpoenas by (over)eager law enforcement officials might in itself be a sufficiently expensive deterrent. But it's not something I'd like to base my privacy on.
My offer to pay someone to build me a MythTV still stands.
The story starts with the hip SF Chronicle online attempting to respond to readers' phoned-in comments. Of course, the volume of comments in any major newspaper is too large to permit individual responses and the Chron comes up with the bright idea to make a podcast out of the recorded commentary so at least readers can hear what each other have to say. So far so good.
Then someone decided to take umbrage at a particular subhead in a Chron news story that used the phrase "pilotless drone." Despite its popularity (about 36,000 hits on Google as of this AM) the phrase really is redundant since "drone" means "unmanned vehicle" in this context. So one could say "pilotless aircraft" or just "drone."
Never one to leave a gauntlet lie, people took up this challenge and.according to this update in the Chronicle, not only can you get this snippet as a ringtone, but there's an entire group on YouTube now dedicated to remixes and music videos.
Now comes NBC, host of the popular and occasionally risque skit show "Saturday Night Live." Recently the show ran a parody of sappy holiday songs called "Dick in a Box." As you might expect from the title, the song had some bits that weren't exactly censor-friendly and it was edited a bit when originally broadcast. The skit was popular with fans so copies ended up on YouTube. Now the story gets better...
NBC, of course, told YouTube to take down the fan-recorded copies. But instead of just bringing down the hammer (a la CNN) they gave the site a full UNEDITED version to post. Material that couldn't be shown on broadcast TV is included (personally I didn't think it was that big of a deal, but that's not the point of this story).
The point that interests me is that here we have an instance of something I've been arguing for since early Napster days. Big content houses can make use of peer sharing sites to promote brands, build loyalty, expand audiences - all on the cheap and at low risk. NBC has made a very smart move and the contrast with CNN's retrogressive actions only makes that clearer.
A friend has asked a question to which I don't have an aswer. To wit: "What constitutes infringement against a design (not utility) patent in the Web space?"
Does anyone have examples of cases being brought against Web design patents?
The source of this question, of course, is the recent award of a design patent for search results, to Google. That is Design Patent No. 533,561 which appears to be patenting the design of incorporating non-traditional search results (news stories, product links) into a search results page. CNET gave me this PDF link to supporting drawings for the patent and all the images show a header section above the list of results.
So without getting into the specific merits/demerits of this patent it's hard for me to say what, in general, constitutes infringement on a design patent within the Web space.
In a possibly related bit of patent irony, Google also announced this week the Beta of a patent search site. The USPTO's search is a bit arcane but even as a layman I've found it useful. Has anyone compared the two, yet?
I have a stack of entries I want to make, just as soon as work and life lighten up a bit, but I couldn't resist this one if only for the headline.
Mattel, the makers of Barbie and all things Barbie-ish, are suing the creators of the Bratz doll line. The allegations include claims of breach of contract, theft of trade secrets, copyright infringement, and racketeering. (Racketeering? When did that get to be a civil tort?)
According to the story in Businessweek, Mattel has literally been kicking down doors in its search for evidence. Funny, I thought that was the RIAA's job.
Ars Technica is blurbing a BBC story that pre-leaks some results from the UK's Gowers Review. This review is actually a commission set up to suggest reforms to the UK's Intellectual Property laws. One of the big issues before the review is the length of copyrights for sound recordings. Currently that's 50 years, but there have been pushes for longer terms such as 95 years or life-plus-70.
The pushes have come from big names, including the U2's Bono and the British Library, but if the leak is true then it appears Gowers will reject these proposals. What that would mean is that the first of the Beatles' music would enter the public domain in the UK in 2012 or thereabouts. It would not be public domain in the US because of recent term extensions here (the so-called Mickey Mouse law) and part of the push on UK laws has been to "harmonize" them with the US laws.
As Nate Anderson points out in the Ars piece, "harmonization" has been a remarkably one-way process in the past, with the nod always going to the more restrictive set of rules. Thus, Bono et al might have been hoping for a Parliamentary Sgt Pepper act to extend ther monopolies. They may get it anyway, since Gowers is a recommending body, not a legislating one. Or maybe the public domain will win one.
Near as I can make out, Peter Jackson was expected to make a movie of The Hobbit for New Line Cinema. No big surprise there - he made a kajillion dollars (about USD 3 billion, from public reports of the global box office take) doing fabulous movies of the three Lord of the Rings books. He is particularly beloved by many fans who felt it only natural he be brought back to direct The Hobbit, a prequel to the LOTR story. So far, so good.
So what does all this have to do with IP? Well, it turns out that New Line don't actually own the rights to make these films. Those rights are held by an entity called "Tolkein Enterprises", a company formed in 1976 by producer Saul Zaentz. That company leased the rights to New Line, and lookee lookee, that lease runs out in less than a year.
This may matter because Zaentz himself is a Peter Jackson fan. Some weeks before this all erupted he gave an interview in which he is quoted as saying that The Hobbit "... will definitely be shot by Peter Jackson." Although he hasn't commented recently, fans are interpreting his remarks to mean that he would not be willing to re-lease the rights to New Line if Jackson was not involved. My guess is that the contract probably has some clause that says the rights will auto-renew if the movie is in production.
So this is how the dominos fall: New Line is under pressure to start production on the movie due to rights, but doesn't want to settle quickly with Jackson on the merchandising suit. So they'll probably start production with another director and piss off 80% of their fan base.
The draw involves asking people to collaboratively write a book with "authors from MIT, Wharton, and thousands of professionals from around the world." Visitors are invited to become authors in the Creative Commons-licensed project.
The project's goals are lofty - to incorporate the experiences of a potentally large distributed set of contributors. As someone who has edited a conventional book (in which selected authors are each invited to submit a chapter) I can say the amount of overhead this is going to involve will likely be huge. Automated tools (from email/chat boards on up) can help only so much. To some degree this is mitigated by appealing to potential co-authors from a likely limited and dedicated set:L MIT Sloan and Penn Wharton faculty, students, and alumni. To help further the book project is relying on a technology (wiki) and structures of organization surrounding that technology that have shown some past success. The project has a publisher (Pearson) lined up, and a plan to distribute any royalties as charitable donations to organizations selected by the authorial community.
My sense is that in terms of community, infrastructure, and process, this effort is unlikely to break any new ground. The real question, as posed by the site's FAQ, is: "whether a community of authors can write a compelling book better than individual experts." That's an interesting question to test and I wish them success.
(Full disclosure: way back in the dark ages, Sloan Professor Thomas Malone, one of the organizers of this project, worked on some projects to which I minorly contributed.)
"It grieves me now that I cursed them (in the matter of book piracy), because I perceived that my curse is working and that their speech is be-coming a horror already. They delude them-selves into the belief that they talk English--the English--and I have already been pitied for speaking with "an English accent." The man who pitied me spoke, so far as I was concerned, the language of thieves. And they all do. Where we put the accent forward they throw it back, and vice versa where we give the long "a" they use the short, and words so simple as to be past mistaking they pronounce somewhere up in the dome of their heads. How do these things happen?
"Oliver Wendell Holmes says that the Yankee school-marm, the cider and the salt codfish of the Eastern States, are responsible for what he calls a nasal accent. I know better. They stole books from across the water without paying for 'em, and the snort of delight was fixed in their nostrils forever by a just Providence. That is why they talk a foreign tongue to-day."
- Rudyard Kipling, in American Notes, explaining the divergence of American spoken English.
For those not up on the history: America used to be very... what's the word... "relaxed" about recognizing foreign copyrights. Much like, say, China is today. Turnabout and all that. Pretty ironic in light of the current jihad being run by the Cartel.
One of those things that just cried out for a better remix: CNN's self-edit. And so I hereby give you: Bill Maher on CNN, remixed. Just in case you didn't get the point the first time.
In the days before photography permitted instant capture of a scene, arists would be paid to sketch or paint an event or scene and copies of that rendition would appear in broadsheets and other newspaper predecessors. Even today we have sketch artists on courtrooms where photographers are not permitted.
So the question, then, is this: if a painter depicts an actual event or scene is that creative work protected in the same way as a photograph of the event would be?
Moore has been painting football scenes for years, so it's not clear why he's being sued now. He claims to have made millions from paintings and reproductions of them; the University won't comment but seems to have taken umbrage at Moore's move into more merchandise-like things such as mugs and calendars.
Moore doesn't stand on the gridiron sidelines and paint as the action happens - he works from photos and his own experience of the event. One of the contentions raised by the University is that this means his paintings contain no (or not enough) original content to be protected by separate copyright.
Just about everyone in the Times story seems to think this is a dumb lawsuit but mostly on social grounds; it's not clear to me where this falls out from a purely legal standpoint.
The questions of copyright and "official" versions just keep getting funnier.
This time we have CNN attempting (apparently successfully) to force YouTube to take down as copyright violation the original broadcast version of a show. But they have no problems with YouTube copies of an edited version, which they themselves showed.
Confused? Me too. Here's what I can piece together:
Bill Maher guests on Larry King Live. This show is shown live to parts of the US (East Coast) but rebroadcast from tape for later time zones (West Coast). On the live version, Maher made some remarks suggestiong that RNC Chairman Ken Mehlman is gay. My hipper gay friends tell me this is an open secret. He's closeted and all that, but yeah he's gay. OK, whatever.
Except CNN doesn't seem to like those remarks so when Maher's appearance gets rebroadcast for the later showing those comments are edited out. Of course people notice (duh, CNN really doesn't get it) and people who recorded the original version post it to YouTube. People also post the edited version. CNN sent a copyright violation letter to the person who posted the original, unedited version, and then edited its online transcript of the show to match what was later shown.
After beating RIM in a long and drawn-out court case, NTP are going after Palm for its wireless email widgets. The news accounts I've read on this are a bit confused, but it seems likely that Palm's Treo line is the primary target. Treo isn't quite as popular as the "Crackberry" but it's still a significant market share and a big revenue source for Palm. As is typical in these cases, NTP has started by asking for a preliminary injunction on sales as well as damages. I don't think it's any more likely that a judge will grant the injunction than in the Blackberry case; on the other hand, NTP's settlement with RIM may provide a template for a much quicker resolution here that would give Palm protection and allow it to continue business uninterrupted.
Alternatively, Palm might try to drag things out, given that the USPTO has already rejected claims in some of the patents on which NTP is basing its case. If Palm can get favorable rulings out of the Patent Office it may be able to tell NTP to take a flying leap, and save itself potentially hundreds of millions in expenses.
Mark Frauenfelder is reporting in boingboing that some idiot is trying to claim copyright in the Principia Discordia. If you don't know why this is nearly the height of absurdity I probably can't explain it very much. Suffice it to say that the volume is one near and dear to the hearts of certain elements of what used to be called the counterculture, as well as being a religious text for pagans who worship the goddess Eris. And that the book was clearly released into the public domain by its original 1965 authors.
The new book has a new title, new layout and some new text, all of which are being roundly derided by devotees of the original work. Boingboing also has links to scans of the original work and various text editions. Help yourself!
9. The method of providing user interface displays in an image forming apparatus which is really a bogus claim included amongst real claims, and which should be removed before filing; wherein the claim is included to determine if the inventor actually read the claims and the inventor should instruct the attorneys to remove the claim.
So on the one hand it's funny both in its text and in that it got through. The complaints about abysmal patent quality and absurd patent claims in the software arena have come from all corners and as some have said at least this one is forthright in admitting its bogosity.
On the other hand, I have a lot of sympathy for the point made by "Tony2" in the comments, to the effect that the rendering of technical inventions into patents is the semantic equivalent of translating them into a foreign language spoken only by a specialized community. Bogus claims or not, I find as a technical person I can't make a lot of sense out of patent language. It's completely understandable that the inventor on this patent wouldn't be fluent in this foreign language and would trust that people paid hundreds of dollars per hour - the application-drafting lawyers - would in fact do their jobs.
Neil Gaiman's blog entry today is an earnest attempt to get writers (and by extension any of us with intellectual property we care about) to put instructions into our wills relating to that IP.
The prompt for this is apparently the fact that the recently deceased writer John M Ford failed to leave such a will and as a result the status of his literary works is uncertain. Since the multiple changes to copyright law in the last century extended IP rights well past the death of the original author, Gaiman's advice is very sound. If you care about who gets to reinterpret, republish (or keep from publication!) or otherwise handle your creative output after you're not around to do it, leave legally binding instructions, dammit. This especially includes situations where people would like to release their works after they're no longer able to personally profit from them. By default if you don't specify, then nobody gets to do anything.
Gaiman also includes a link to a simple will (in PDF form) written by a lawyer who is also an author. This file is intended for direct use or as a template for US-resident creative types who care about these issues.
Unlike some of Jon's other code ventures, this one sounds like a legitimate case of reverse engineering with obvious business models. Like those who crack proprietary codes for things like printer cartridges, Jon's crack doesn't directly remove Apple's DRM, but it does permit competitors to enter a market that had been technology-locked.
It will be trivial, of course, for Apple to change its codes and push a download out to iPod users any time they connect to iTunes or other networked Apple service. This change could re-establish Apple's monopoly. However, if Apple does so, what's to stop a rival music provider from suing for unfair restraint of trade? It seems to me that the printer-cartridge analogy is pretty strong and would give at least a skeleton of a legal case.
According to the Ars Technica blurb, Johansen and his new company will argue that the enabling of competition is protected by the interoperablity clause in the DMCA. This is a very different story than an effort to make iTunes music available on other players, wihch might be viewed as impermissible removal of DRM software.
It's really hard to top Techdirt's headline for this story: The Boy Scouts Now Have An MPAA Merit Badge In Misleading Arguments. If you're a Boy Scout in southern CA you can now get an "activity patch" (which is apparently different from a "merit badge") in such key survival techniques as identifying copied CDs, ratting out your friends for downloading, and sucking up to Hollywood. Yeesh. What ever happened to helping old ladies across streets? Cory Doctorow also had some choice words on the topic. Any connection between this activity and the large donations given by Hollywood to the Boy Scouts is purely coincidental. Really.
I think it's a race to see who'll sue first: Justin Timberlake, whose song is being parodied, or SmithKline Beecham whose "social anxiety disorder" drug Paxil is the topic of the parody. My bet is on SK-B. Anyway, see the video on YouTube, at least for now: Paxilback, by Gray Kid
The Web site War of the Words is releasing a week-by-week 'documentary' of the '101st Fighting Keyboards'. The Flash movie chronicles the post-9/11 rise of the hawkish right-wing blogging community, largely in their own words. The film is an obvious parody and uses limited quotes from the published blogs themselves. My guess is that this is standard protected activity, even down to the use of cartoonish voices to read out some of the quotes. it does raise the question in my mind of whether someone's blog can be said to make taht author more of a public figure and thus subject to different standards for torts such as slander or libel. (Watch the trailer)
Oh, yes, friends, the case is dragging into its third year and not only is it dragging, there's no likelihood of a trial on the facts any time soon. As near as I can make out, both sides have buried the judge in motion requests, each of which has to be considered on its merits and ruled on by the judge before anything else can happen.
One of the motions filed by IBM was a request for summary judgement - essentially saying "Judge, this is crap so please just tell them to go away." It is my sense from talking to various legal people that judges are usually extremely reluctant to issue summary judgements. If nothing else, a judge tends to feel that even a far-fetched case deserves a hearing and to be fair it may be that new things emerge at trial, or the threat of an actual public trial may force parties to settle or compromise. Not to mention that any summary judgement in a high-stakes case is itself going to be appealed and may put the judge him- or herself under scrutiny.
So if IBM wants to win this motion it really has to deploy extremely convincing evidence in support of the motion. Naively speaking they'd have to show that their case against SCO is a slam-dunk or that SCO's claims are utterly without merit.
Which brings us back around to the blog posting. Since the trial documents are not public (and may never be) we have at best a redacted version of IBM's supporting document (linked at http://www.zensden.net/misc/IBM-838-1.pdf and http://www.zensden.net/misc/IBM-838-2.pdf). There appear to be five reasons IBM is willing to argue why SCO's claims should be dismissed.
1. No Code, No Crime. SCO has yet to produce any evidence to support their claim that IBM copied protected code into Linux. In addition, IBM argues that SCO hasn't produced evidence to show what rights it has in the particular code it claims IBM copied.
2. Got License. IBM argues that its various licensing deals permit it to use the code. The judge may also be swayed by the argument that some of those licenses came from SCO's predecessor companies or organizations in which they were members. Caldera's actions in respect to that same code under the GPL may also be relevant.
3. Promissory Estoppal. IANAL and I don't pretend I can explain this concept in general, but it appears that IBM is claiming SCO's legal predecessor (Caldera) encouraged and endorsed use of the code. SCO can't go back on that.
4. No Copyrightable Code. IP Wars admits that there's a lot of relevant context in the material not in the public domain, but what appears to be happening here is that IBM is claiming the particular lines of code identified as contentious are themselves a functional entity and not expressive in the manner that would invoke copyright protection. This is not a position statement from IBM on the copyrightability of code in general, but rather an argument that SCO is picking-and-choosing particular statements (e.g. function prototypes) that don't _do_ anything. There's a technical point here about whether the code lines constitute part of an international standard and/or an API definition in which case IBM may be drawing on previous case law that has ruled such interfaces are not copyrightable.
5. Copyright Misuse. IBM appears to be claiming that SCO is trying to enforce copyright law in ways not permitted. IP-Wars claims that "the penalty enforced by federal courts for overreaching copyright claims is forfeiture in the instance." So if this is true and the court finds that SCO overreached itself, the court might dismiss the entire case on these grounds alone.
Now with all that said it's important to remember that SCO will be submitting material arguing the other side and it's possible they'll find persuasive counter-arguments to each of IBM's points. Or maybe the judge will chuck this entire mess in the trashbin where it belongs.
Mere days after Weird Al Yankovic's "White and Nerdy" parody gets popular, the rapper Chamillionaire releases "Ridin'" a moderately good rap tune sitting on top of Al's.
Color me gullible. I got the order wrong. Teach me to believe random emails from acquaintances.
OK, but wait, wasn't there (isn't there) another superhero MMO? Yes, pilgrim, there is. It's called City of Heros/Villains, and it's made by Cryptic. Who were, wait for it, being sued by these self-same Marvel Enterprises not so long ago. As I guessed back then, having the court toss out vhunks of the case seemed to bring the two sides much closer to negotiation and this may well be the result.
Quick followup on Banky's "artistic engagement" with Paris Hilton's new CD. A friend pointed me to Flickr, where a search on the keywords "Banksy" and "Hilton" turns up 58 images of the doctored CD's cover and interior images. At least one aspiring photographer linked to his eBay auction of a copy of the CD, which was removed before I could even bid, let alone win. So I'm still in search of.
The swaps involved replacing physical platters in stores such as HMV and Virgin. HMV, in particular, appears to be taking quite a lenient view on what I suspect some others would call theft or vandalism. Their chosen spokesperson remarked that
"I guess you can give an individual such as Banksy a little bit of leeway for his own particular brand of artistic engagement."
P.S. If you recover one of these artistic gems I'll pay to have it shipped to me in the US.
In this case it's feminist scholarship. In August of 2004, the New York Times published an op-ed by Sarah Glazer, reporting on the disgraceful state of translation of the feminist classic The Second Sex by Simone de Beauvoir. Glazer covers in detail how the translator's ignorance of philosophy, particularly the Existential and Phenomenological philosophical traditions, led to a work that - in English - has virtually the opposite meaning of the original French.
According to a December 2005 entry in the blog Alas, there are translators and publishers who would love to re-do the translation and, presumably, correct these and other errors. However, the current publisher (Knopf) has the exclusive English-language rights locked up until the book goes into the public domain - in 2056. They are also supposedly refusing both to do an updated transation themselves, and to allow anyone else to publish one.
Don't ask me why it took me this long to hear about this. Just riddle me this: is there any scholarship or educational exception in copyright law that would let someone create a new translation from the original French? I realize one couldn't do a corrected edition of the current copyright book, but wouldn't a proper translation be sufficiently different to qualify as a new work?
PLOS, the Public Library of Science is by many measures a great success. Contrary to naysayers its online journals are well-respected and often cited (which is the real measure of currency in academic research).
Their latest announced project is PLOS One, a "forum" for publication in science and medicine. The nearest I can do to summing up the proposal is that it looks like a peer-reviewed collaboratively authored science blog. Obvious competitors are general purpose high-quality online science publications such as Scientific American, but these have heavy editorial control and limits. It will be interesting to see if the author-driven model can succeed as well as PLOS's more traditional journals have.
What's a good legal alternative to taping/DVRing the latest episodes of your favorite TV series and sharing them with friends? Well, um, mostly nothing. Eventually the shows will come out on DVD and can be rented. But what if they were availabel for rental at the same time, or maybe even before, they hit the air or cable?
There's no technological reason this can't be done, or couldn't have been done any time in the last five years. Only now it seems like the networks might be twigging to the commercial possibilities inherent in this line of business. As a form of toe in the water, NBC has done a deal with Netflix to make episodes of two of its series available through the online/mail rental company well before they premiere on TV.
Netflix's benefits are obvous - it gets rental monies from people who can't wait to see the new episodes. People who don't much rent movies may be crazed about certain TV shows and sign up for a service if it gives them a six-week jump on everyone else. In addition, this particular deal gives Netflix promo time in prime time.
The real question is what's in it for the Cartel? As with so many of these things, the reasons are shrouded. We might guess that the Cartel have a larger faith in the DRM wrapped on these disks - they're DVDs but may contain additional anti-copying software. Or they may simply be waking up to the reality that they're losing out on revenue.
I've been saying for years that what downloadable music services do is fundamentally like selling bottled water - take a product that people can get effectively for free (water) and package/market it as a high quality experience. ITunes has flattened the competition by doing precisely this.
If this deal moves from another promotional stunt to an operating business model we may find ourselves with an actual competitive marketplace in digital television episodes. Wouldn't that be nice.
This Video Brought to You by the Letter 'U' and the Numeral '2'
An anonymous Copyfight reader sent me a link to this video mashup. It's a 'cover' of U2's "Sunday, Bloody Sunday" featuring rapid-fire clips of George Bush. I'm pretty sure that the music is done by rx, of the Party Party but I've no idea who did the video.
How do I know this? Well, I don't. I can only infer it from the fact that the Department of Homeland Security is picking up people at the border for apparently nation-threatening involvement in T shirt copyright infringement. No, seriously.
Courtesy of Bruce Schneier's CRYPTO-GRAM, I was pointed to this gem, titled "Terrorist in a bootleg T-shirt". According to the piece's author, he was detained and questioned on entry into the US not on account of his time in the middle east, nor on account of his extensive phoning back and forth while in Pakistan. Instead, he apparently upset someone by selling Boston Celtics' sportswear without a license in Boston in 2003.
My fellow Americans, this is our tax dollars at work. The author has some pretty nasty words for Homeland Security, too.
Probably not, but let's at least note a couple of steps. First, Yahoo announced that it's doing a trial "downlad unencumbered MP3s" service. As always, the devil is in the details, but on the surface it appears you'd just pay double the going rate (USD 1.99) and get an MP3 of decent quality that you could actually treat as owned music rather than rented.
Yahoo's justification is that it's simply more economical to do things this way rather than build cumbersome and expensive DRM systems for hackers to practice on. OK, that's not exactly what they said, but that's the gist. Of course the Cartel hasn't actually signed on to this deal so it may go nowhere.
What the Cartel (at least Sony-BMG) has done is use this as a publicity stunt. They've released one song, in 500 versions, each with a different "personalized" name in them. Yahoo! Music customers can search for, puchase, and download a copy of the song that presumably matches their name or a name they care about.
The USA Today story linked above quotes the EFF's Fred Lohman saying "It's about time." Which I guess is about the politest thing one can say about this level of effort on the Cartel's part.
Copyfight reader Yehuda Berlinger pointed me to his amusing and delightful blog entry in which he renders the US Copyright Code into verse. It is actually WAY more readable than the original.
Tim Berners-Lee has an extensive blog entry (with Real video) about the importance of Net neutrality. One of the things I like about his blog entry is that it contains a simple formulation of what's wrong with Net bias. EFF and others have been making esoteric arguments about what might happen, or what-if favoritism scenarios in the world of Net bias. What Tim B-L says, that bears repeating until the Congresscritters get it.
Net Neutrality means that if I pay for a certain level of service and you pay for a certain level of service, then we get to communicate with each other at that level.
Friend-of-a-friend notes that he has left MP3tunes on good terms. Apparently his girlfriend lives up in San Francisco and he's moved up there. Also in the rumor mill is that he's gone to work with DoubleTwist Ventures. If they're for real they sound like the Cartel should be carpet-bombing them with lawyers already. One choice tidbit from their mission statement: "...the reverse engineering of proprietary systems for which licensing options are non-existent or impractical."
Prior to an hour ago I'd never heard of this blog, nor of the troubles of the KY state administration. But the blogsphere takes care of its own, and the censorship got mention in Daily Kos and Boing Boing, among other places. BlueGrassReport's author, Mark Nickolas, is probably well on his way to becoming a minor blog celebrity.
So what does this have to do with Copyfight? My eye was caught by Nickolas' use of a word I'd never seen before: blog-swarm. In Copyfight, we've debated around ideas of whether bloggers are journalists, whether they ought to be entitled to protections traditionally afforded to other kinds of journalists, and how the actions of bloggers are what make them journalists, not any particular label.
So when I saw "blog-swarm" images filled my mind of the old days when reporters would rush to cover a story, then rush to the nearest phone booth to call the story in. On the one hand, there's cachet in the blog world for having a story originally, or being the first to note something of import - the 'scoop'. On the other, there's a notion that a story deemed important enough to be carried in several major blogs is something that people ought to pay attention to. I think that's interesting and important and even if it's not particularly dignified to be part of a "swarm" it's kind of cool to try and throw my weight behind an effort to move one boulder of injustice and possibly, in doing so, to establish that yes, bloggers have that kind of weight to throw.
Georgia Tech is touting some new research for its film industry sponsors on ways to disable digital cameras in small spaces, such as movie theaters. I'm reasonably confident that by the time this makes it into commercial production the camera technology will have gotten smarter and pirates will be able to hide their cameras from simple scanners.
However, more troubling is this as evidence that the Cartel hasn't swayed from its "we are the law" mentality. Remember, these are the guys who tried to get their Congressional sock puppets to pass a law allowing them to break into and cripple your computer if they thought you were sharing music without permission.
Also problematic are some of the other proposed uses, such as stopping people taking pictures of their own kids in spaces like malls. When, exactly, did we cede THAT right to the Cartel?
There's a brouhaha going on over the works of James Joyce, and the attempts by the author's grandson (and sole surviving heir) to control the use and publication of the author's novels, letters, and other output.
D. T. Max has a piece in the mid-June New Yorker chronicaling some of the antics of Joyce’s grandson, Stephen Joyce as we approach the 102nd Bloomsday. Max describes the current state of the relationship between Stephen Joyce and the community of scholars as "dysfunctional" and notes that the heir has acted to suppress publications he doesn't like, and may well have destroyed correspondence of interest to scholars.
These and other actions have led the Stanford Center for Internet and Society’s Fair Use Project to file a lawsuit against Stephen Joyce, as noted in Lessig's blog. That entry links to the PDF of the complaint itself, and commenters there have linked to some of their own writings on the various legal contests that have occurred in the past few years.
Thanks to copyfighter Branko Collin for pointing me in the direction of these stories.
Greg Aharonian has posted the (PDF) text of a speech given by CAFC Chief Judge Paul Michel. In this talk, Michel tries to address the question of "how can I know if I might be violating a patent?" On the one hand, the answer is the same as how one knows if one is violating criminal law or governmental regulations - you read the appropriate public information. On the other hand, the availability, organization, and language of applicable patents and patent claims are... well, awful. Michel calls for things that should be obvious, such as standardization of claims drafting, use of clear terms, disallowing of vague and overbroad language, and more uniform conventions used by courts in construing claims. All good things.
I got a call earlier this week from a CEO of a startup company that finds itself being harrassed by patent trolls. In particular, they're ready to go to market with a product but are hesitant to do so because of threats of patent infringement lawsuits. So they're looking for prior art as a potential counterweight - essentially to say "if you use that patent against us we'll get it invalidated." In this case, they came across some Web pages I threw up after a workshop I organized nearly 10 years ago. Such pages themselves aren't definitive prior art, but they record the names of people working in the area back then, and one can hope that such people had more formal publications that would make good prior art.
I tried to help out as best I could, mostly by giving likely places to search for such publications and the names of some people I know who were publishing in the target domain. I asked him to call back and keep me apprised of how things turned out.
On the one hand, this is sad because if patents actually required proper citations and searches of prior art before issuing we'd have a lot fewer crap patents to drag down innovative startups. On the other hand... wow, someone actually read that stuff I took the time to make back then. Maybe I helped a bit. Cool.
Depends on whom you ask, of course. SIRA, a House effort to reform copyright licensing, is drawing the ire of a lot of folk, ranging from the EFF and consumer-advocacy groups to commercial vendors such as BellSouth. On the other side, entities such as the RIAA and music publishers want changes to an old approach that requires separate licensing for song recordings. Their goal is a "blanket license" that they claim is required to speed up copyright approvals for large amounts of music at once.
That seems like a laudable goal - nobody is claiming that the US system of managing copyrights is simple. The problem is in what each side wants to consider a "performance" and what is a "recording." And which category do transient copies (such as caches) fall into? The bill's opponents claim that the current language will put digital recordings into BOTH categories, forcing double license payments.
Although the bill has been okayed by a House panel there's still a long road ahead and I expect to see more on this topic before Congress recesses this session.
And of course there's the pernicious notion that people would be required to pay (usually by increased prices at retail) for time-shifted viewings, PVR recordings, and other personal-use copying that is currently allowed under fair use exemptions.
Invoking the terrorist bogeyman, our latest Gruppenfuhrer has apparently secretly informed ISPs and maybe search engines that they are required (by what law, one wonders) to retain all records of user activity for two years. Initially, this push for universal net surveillance was draped in the cloak of "protecting the children." That's always a convenient hook on which to hang intrusions because, hey, who's going to stand up and say they're in favor of more rights for child molesters? But that's just a ruse, a shell game. This kind of regulation has nothing to do with kiddie porn. It has to do with this government's insatiable hunger for spying on its own people.
Apparently, even China doesn't retain this much information on its citizens but this is the YEW-ESS-AYE and we have to do everything bigger here than anywhere else. So when we screw up it can be a screwup of truly monumental proportions.
Now excuse me, there's someone knocking on my door - I'll just go see who it is...
What brought this to my attention was the unattributed note in this week's Harper's Weekly Review, which I feel compelled to quote in its entirety in the hope that some clever reader can find the source and so that all the people whining to the FCC about bad words can now whine about this blog, too
An analysis of FCC decisions found that the following terms or phrases are neither indecent nor profane: "a lot of crap," "ass is huge," "ass," "bitch," "damn," "dick," "dickhead," "fire his ass," "for Christ's sake," "hell," "kick-ass," "kiss my ass," "my ass," "pissed off," "poop," "sex with a dog," "singers that suck," "sit their asses down," "sucked," "up yours," "wiping his ass," and "you suck."
A friend pointed me to The Institute for the Future of the Book because he's currently participating in the discussion around the creation of GAM3R 7H30RY by McKenzie Wark. I've just begun to explore both the site and the book project, and I'm obviously coming late to the process.
It appears to be an ongoing publication by Wark of his book, which happens to be on the subject of computer games and their potential for use as allegories to things in society. Unlike other versions of "publish online" that I've seen, this is much closer to "publish the manuscript online" and solicit readership, feedback, and commentary.
Writers, particularly new ones, are often encouraged and bouyed up by physical writer's groups, in which people co-critique works in progress. Some writing workshops/groups also include lectures from established authors and related well-known people in publishing. In SF/Fantasy, the Clarion SF&F Writers' Workshop is well known and has graduated a number of folk who have gone on to great success.
So, can this model work online? I'm dubious. One of the things that makes a good writers' group, and that makes Clarion the success it has been, is a rigorous screening process. You get into these things not just by having good intentions or a lot to say but by having valuable experience and insights to contribute. It's unclear to me how one filters the mass audience of the Web into something resembling useful wisdom.
On the other hand, perhaps a workshop is the wrong model. Maybe this is more like the writing of a massive wikipedia entry on games and game theory. One person writes most of it, but the audence participates in the edit and refinement process? It seems like that model might produce something more useful.
North American monopoly organization Major League Baseball (MLB) has kept tight reign on its franchise products. Team merchandise, broadcasting, and other data streams that surround the game are major money centers for the organization. Now MLB is trying to extend its control of the use of the statistics about baseball players and games.
In specific, MLB is suing CBC Distribution and Marketing, a company that operates an online fantasy baseball league. MLB is claiming a "right of publicity" and saying that if you want to use these statistics you have to pay a license fee. MLB is basing its defense on this claim in part because previous court rulings have held that raw statistics are part of the public domain, but that ballplayers do have marketable identities and that these images can be subject to copyright and license restriction, even when the "image" is only the name and statistics.
CBC is arguing that the data are public domain outputs of public figures - the players. CBC also draws a direct line between what it does and what a news organization does. Your hometown paper doesn't pay a fee to print the sports section, nor report the racing results. To require this, says CBC, would be to put all sorts of data-based reporting at risk. MLB contends that there is a difference between reporting - even commercial, for-profit news - and the mechanics of running a league, even a fantasy one. However, this could potentially put us on a slippery slope - for example, would makers of a game like Trivial Pursuit have to pay a license for its "Sports" category question, even though they might have "Science" category questions that were essentially similar.
Not to be missed in this story is the fact that MLB itself runs fantasy leagues and in recent years has taken steps to cut down its licensees, focusing on the bigger (and presumably more profitable) properties such as CBS and that CBC was among the smaller outlets cut out of the deal.
Also not to be missed is that about 10 years ago the shoe was on the other foot and MLB was arguing that its use of historical players' names and statistics in its own promotional videos was protected by the First Amendment.
Somehow I missed the existence of the Music Genome Project. This brainchild of Tim Westergren, a composer and graduate of Stanford's Center for Computer Research in Music and Acoustics. The infrastructure for the Pandora project was built by Westergren's dot-com company, Savage Beast.
As its name suggests, the Music Genome Project is an attempt to catalog hundreds of attributes of music. The technical infrastructure is there to support the human work of this cataloging - no software exists that can do this work because we don't know how to teach computers to analyze music to the depth that we can teach them to analyze, say, text. And now there is Pandora, a way to collect people's notions of their favorite music and, using the musical genome, recommend new things to them. The process is automated - you start with an artist and the system plays something (usually by that artist). You give it a thumbs-up/down response and things go from there. You can guide it at any point, giving more artists to add to the mix, asking for explanations of why something is playing, etc.
Past attempts at this sort of thing have tried to use social navigation techniques (most familiarly seen these days in places like Amazon where you get told "people who liked this also liked..."). These techniques deliberately attempt to distance themselves from the qualities of the items that are linked. If you get two country-and-western artists, it's not because the system itself knows anything about C&W - it's beceause the humans using the system know about it. Pandora takes just the opposite approach. If it works at all, it works because humans (mostly composers and musicians) have painstakingly recorded a tremendous amount of knowledge about what makes music be music.
I can see I'm going to lose a lot of hours to this thing. Oh, and did I mention it's shareable? You create a station and share it. They have licenses to stream music inside the US, and depend on you entering a valid US zip code (which might be secretly correlated with your IP address for all I know). The free version is ad-supported, or you can pay money for a no-ads version.
The video is mostly Moby reading a prepared statement, but the message is clear: artists and musicians have come down on the side of "net neutrality." They've put their weight behind the fight that savetheinternet.com has been pushing - a neutral 'Net, free to carry all messages, equally - is the only way to continue the benefits we've enjoyed from the past fifteen years of Net expansion.
The Web page linked above has a simple form that you can use to get phone numbers for your Congresscritters. I suggest you use it. Some other links on this event:
"Politics and greed" are the main reasons, or so says The Reg's Andrew Orlowski. Not much new here - Orlowski is just recounting the sad reality that the hardware, software, networks and so on to allow a person to stream music he owns to himself anywhere have been ready to go for years. All that stands in the way are the fears and greed of the copyright holders. I get so tired of saying this, but it's still true - the customer experience is paramount. Making more isolated sandboxes and throwing up more barriers to transcoding and transport will not increase revenue. Really.
Kristin Thomson of the Future of Music Coalition (FMC) sent me a copy of their announcement for this fall's 6th Annual Policy Summit which will be held this coming October in Montreal in conjunction with the local Pop Montreal festival..
The FMC summit will be October 5-7 at McGill University's Schulich School of Music, Montreal, Canada. At this point there's not much information up, but we'll update you as the program (or is that 'programme'?) takes shape.
Peter Kaplan has a Reuters story (here on the Washington Post) covering the Supreme Court decision in the eBay/MercExchange patent battle. As Kaplan paints it, the SCOTUS decision comes out rejecting a bunch of things decided by lower courts.
For one thing, MercExchange lost its injunction. The lower court now has to reconsider the injunction request, but on different grounds. For another thing, the Justices rejected a lower court's notion that there is a general right by patent holders to injunctions against infringers. Finally, they appear to have soundly rejected the US District Court's opinion that failure to use a patent (by manufacture or license) is grounds for losing the injunction right. I don't think that SCOTUS expressely addressed the notion of "patent trolls" but Kaplan points to a concurring opinion signed by four Justices that expresses sympathy with the concerns of companies - particularly in high tech - that feel they are being held hostage by patent holders who have no function other than to sue everyone in sight.
Nolo, the "law for everyone" people, have updated several of their how-to guides for non-lawyers dealing with the US intellectual property system. Updated information is available on:
- Getting a patent (possibly without a lawyer)
- How much copying is OK under "fair use" rules?
The clue? If you offer the product people want in the form they want it, they're likely to buy it. Shocking, I know. But this is the Cartel we're talking about.
In this case, it appears that Warner Brothers have done a deal with BitTorrent (the company) to put out torrents of popular movies at roughly DVD prices, and torrents of TV shows that might be as low as a buck apiece. Here's what Tsujihara is quoted as stating:
"If we can convert 5, 10, 15 per cent of the peer-to-peer users that have been obtaining our product from illegitimate sources to becoming legitimate buyers of our product, that has the potential of a huge impact on our industry and our economics."
This is me sitting here, stunned. Yes, sir. Exactly. It's not about "smashing" "piracy." It's about luring away customers with a superior product. Trading existed before Napster burst onto the public consciousness and it still exists today. The difference is that today downloads of digital music make up a significant revenue stream. Next step - make that true for movies.
The devil is always in the details. As Blakely's story points out, previous download offers from the Cartel have, well, sucked when compared with the features available on DVDs. And please don't forget ease of use. If iTunes taught you anything, it should be that the customer experience trumps everything else. But maybe the Cartel is finally swinging around to a more compatible and less combative point of view.
FAS - the Federation of American Scientists has posted a PDF of a governmental "research" (and I use that term loosely) report titled Patent Reform: Issues in the Biomedical and Software Industries. The thing is weak and bland. Aharonian referred to it as a "trite summary" and I tend to agree.
or, why you should never bet on the same horse as I do. I had pretty much given up Apple Computer's trademark suit as a lost cause. It seemed naively clear that Apple Corps Ltd. had the right when it came to use of the Apple name in the music arena. However, the Judge in the case was willing to accept Apple Computer's distinction between "Apple-the-music-store" and "Apple-the-music-sold-by-the-store" and so ruled in favor of the downloading empire.
It appears that Apple Corps will appeal, but for the moment the end result is "no change" for the music business.
Get Your Sneak Peak While Authors Are Allowed to Give Them
Neil Gaimon's blog today has a wonderful "sneak peek" at the upcoming comic The Eternals. Gaiman posted the image without geting a bevy of lawyers involved and permissions forms signed because he's a creator who loves what he does and wants to share his love with fans (like myself) who enjoy this kind of thing spontaneously, not when it's a corporate-sanctioned mass media "event."
As I noted yesterday, the Cartel are starting to realize significant revenue from digital downloads; however, much (most?) of that revenue is not coming from the 99-cent tracks downloaded off iTunes. Instead it's coming from specialty downloads such as ringtones, for which consumers appear to be willing to pay a lot more money (often over USD 3) for much less music than they get with a downloaded track. Given those numbers, the Cartel reasons it ought to be able to squeeze more revenue out of popular song downloads.
What Jobs isn't currently saying out loud but obviously recognizes is that this would kill the goose that lays the golden egg. Variable pricing would introduce friction into the buying process. Right now I make one decision - do I want to buy that song. I don't have to think about price because it's always the same. If prices were variable, however, I'd have to make several decisions: do I want that song? Do I know how much it costs? Do I want it that much? Will the price go down if I wait a bit?
I make my living studying and building user experiences and I can tell you that thought processes like the latter are a much worse model. They lead to hesitation and missed sales opportunities. Sure, you'll squeeze a few more pennies out of the people who do buy, but you'll do so at the expense of constricting your market and increasing the sales cycle times. Not a good tradeoff. Jobs has it exactly right.
Is the music business up, or down? Seems like a simple question, but the answer depends heavily on where you sit and what your vested interests are (shocking, I know).
For years now the RIAA has been banging the drum of declining CD sales. We're told it's all that illegal downloading by those naughty college students. And for years, annoying armchair quarterbacks like myself have been pointing out that if the consumer isn't buying your product maybe you should offer a different product. So, reluctantly, kicking and screaming and suing, the Cartel has finally been dragged into the download age. Blame Steve Jobs.
In a few short paragraphs, and using the RIAA's own data, Bangeman shows that the advent of mass consumer digital downloading has begun to fill the gap left by spiraling drops in sales of physical media. As of last year, digital product sales accounted for nearly 9% of recording industry revenues.
Since it only took them about 7 years longer than it could have to get to this point I figure it'll be at least that long before they stop frothing at the mouth over the death of last century's hot product.
At present the suit is just a few bands but is seeking class-action status, which could lead to a lot of artists claiming that they didn't get their rightful shares. Specific charges are that Sony has been passing on a mere 4.5 cents of its 70 cent take from selling a downloaded single. Claimants The Allman Brothers and Cheap Trick assert that they were due to get 30 cents.
The question of whether the higher rate is due depends on whether you think the download is more like a license for use (such as in a movie or TV show) - expensive - or more like a CD sale - cheap. The artists claim the former; Sony is claiming the latter.
At this point, those of you who have been following along should be sitting up like me and saying "Wait, isn't the point of the DRM on downloaded tunes precisely to enforce licensing terms?" And "Wait, isn't the consumer complaint about DRM that it restricts them from doing with downloaded music what they're allowed to do with CD tracks? Hmmmm. Seems to me that's pretty much de facto evidence that the download is indeed much more like the license for use than it is like the CD. If in court the plaintiffs use and the judge buys this reasoning it's going to be sweet irony.
Paul Alan Levy of the Public Citizen Litigation Group sent out a letter pointing his readers to an ongoing debate in Editor & Publisher on the topic of HR 683, the "Trademark Dilution Revision Act." Levy has, for some time, been trying to draw attention to provisions in this bill that will strip the defense of noncommercial use from defendants in trademark infringement cases.
Part of the point made by Levy is that people are commenting without reading the original bill, which I haven't done, so I'll refrain from adding my own commentary here. If you can wade through it and want to add something I'd appreciate that.
Another big thinker whom I respect even when I disagree with him: John Dvorak. His latest is a piece in PC Magazine in which he calls Internet Explorer an "albatross" and a "costly gaffe." The piece is more about business strategy than Copyfight issues, buit it touches on the part played by the Eolas patents and their impact on Microsoft's core business (which is selling Windows everywhere to everyone for everything). In essence, Dvorak argues that by building and then deeply tying IE into Windows, Microsoft opened itself up to a whole range of new attacks, including patent litigation.
I think Dvorak overstates his case when he claims that all of Microsoft's legal problems stem from IE in some way (anyone besides me remember Burst?) but he's not too far off.
Emma Bull's LJ/blog pointed me to a detailed description of book P&L from the point of view of a professional editor at Tor Books. Editors at Tor (and I imagine other houses) have to do a P&L in order to justify a decision to buy a book. The entry gives fictionalized examples, but based on real numbers.
George Dyson visited Google on the 60th anniversary of John von Neumann's proposal for a digital computer. Edge blog has some words about this visit and Google Books (note: the page is very oddly formatted; seems to have several repeated paragraphs).
Via boing-boing, a pointer to a snarky p2pnet piece on the RIAA's loss in its attempt to transfer legal responsibility for some alleged file-sharing activity from a mother to her daughter. Sadly, they lost on incompetence (failure to produce necessary documents) rather than on principle.
Over in the UK there is a popular mashup of GWBush audio clips synched to John Lennon's Imagine. It has even made its way onto BBC 1. Legitimize that art form! And now there's a video.
Interesting to think about this suit in light of the Graham essay: Netflix and Blockbuster Online. Although the company has been around for years (since 1997 according to its site), Netflix is still by far junior to the long-established video chain. In the online business Netflix has something like a 3:1 subscriber advantage over Blockbuster's relatively new service.
So how do we read this suit? Graham would appear to side with Blockbuster, which claims the suit is not about intellectual property but instead about market competition and Netflix feeling the heat. I tend to think that's right, though it's bigger than that. Netflix has to realize that if Blockbuster Online looks to go into the black (predicted for next year) then it's going to be open season and everyone with an inventory of disks and a big name (like, say, the studio chains) will want to get into this business. Patents or no, that's going to cut severely into Netflix's profit margins. On the other hand, if they succesfully shoot the first trespasser the others will think twice before getting into the business.
A few days ago I ranted about thoughtless reportage - basically reproduction of press releases masqueradings as news. Jumping now to the far end of the spectrum I'd like to point to a thoughtful piece written by an intelligent man, even though I happen to disagree with many of his points.
To wit: Paul Graham's essay on "Are Software Patents Evil?" Graham is a hacker, entrepreneur, philosopher, and yes software patent holder. The essay derives from a talk he gave at Google on the topic. Graham's essay draws mostly from his point of view as adviser to several start-ups, all of whom care about patents. He reasons that patents aren't as much of a problem as people think, mostly because of what's in peoples' economic interests.
He asserts that people opposed to software patents must then be opposed to patents in general. I think this is false. Software has a number of properties not shared by physical processes and instantiations that make patents problematic. These include multiplicity of representations (source language, intermediate language, assembly language, etc) being equivalent, an extreme flexibility on the topic of what is process and what is the data operated on by that process, and so on. Software is neat and cool and (unlike some Copyfight readers) I think it is deserving of some intellectual property protection for authors who choose it. But I think patents are a bad tool for it, and they're being badly abused. Thus I oppose software patents but I'm fine with other uses of patents.
Graham attempts to address the issues of abysmal patent quality, noting that the intersection of software and government almost never turns out well. True, but not the whole story. Prior art, for example, is pathetic in software patents compared to other patents, and the USPTO is absolutely criminal in its failure to enforce prior art (and associated nonobviousness) requirements. Given the state of the law and practice, Graham argues that companies wishing to compete must apply for patents. He makes the analogy to a hockey team that doesn't check opponents - to which one might counter that if you skate fast enough you can avoid checks and not have to do them yourself. So much for the power of analogies, but Graham's point of view is held by quite a few folk.
Graham blames companies such as Amazon not for getting patents - they're simply maximizing their take from the current free-for-all system - but for enforcing silly patents. Though he doesn't use these terms, he describes the classic "sword" and "shield" approaches to patents. Unlike a trademark, a patent holder is not required to vigorously police any potentially violating activity. A patent holder can simply sit on the patent, using it as a "shield" to protect his own investment. Amazon used its "1 click" patent as a "sword" to attack Barnes & Noble for having a similar checkout system.
Now the question is: who actually sues whom over patents? Graham points out that much more often it's small companies suing larger ones. Suing startups is often a waste of resources because you can't get money out of them. If they're a threat you buy them, or at least buy the intellectual property you care about. Most startups are eager to strike licensing deals for their IP with big players and patents give them leverage in those negotiations. Or if you're big and mean you lock out the startup and its novel technology. A patent for something on a PC is worthless if you can't get that thing to run on a WIndows OS.
Graham also injects a heavy dose of fatalism (his own word) into the picture. Basically, once you're big enough to be successful and have money, you'll get sued whether or not you have patents. But you shouldn't worry about it, because it shows you're worth noticing. Being noticed means you're a candidate for buyout, which is the exit strategy for most startups. And if you're not going to be bought out then you need to go to the negotiating table with the existing big players, all of whom have big patent portfolios. Your portfolio in this view is table stakes - it gets you respect and a seat. What's actually in the portfolio isn't really that relevant; what's relevant is whether you can strike the kinds of mass cross-licensing deals that allow the big players to continue in business without having to worry about every clause of every patent in every competitor's portfolio.
I view this as a kind of insanity, much like the nuclear Mutually Assured Destruction phase of the late 20th century was a shared insanity. Armed truces aren't inherently stable and are always unfriendly to new entrants who can upset delicate balances of power. That's not healthy for software in general. Graham would probably agree, but he points out that for all the big press over certain cases, patents play a much smaller role in software than they do in other industries. For example, other industries regularly see large-scale lawsuits over patents well before products are released - think of the drug industry for example. That's exceedingly rare in software, and Graham gives some reasons.
First, the complexity of software renders most patents trivial by comparison. I may have a patent on an order checkout method, but that's only a tiny fraction of what's needed to write, run, maintain, enhance, and grow an online store. Second, software has a tradition of the young and fast displacing the old and wise. Patents are a way of respecting "how it was done before." Software startups take pride in DISrespecting that kind of thing. Third, the nature of the software business is that we inherently engineer around. Graham says that startups rarely try to take on big companies head-to-head - instead they try to engineer paradigm shifts in which the old way is irrelevant, and so are the patents that protect it.
Graham gives a lot of weight to "public" opinion, by which he means hacker opinion. Here I think he's being too optimistic. Microsoft has done a ton of evil things and not suffered much from public backlash, even when they were being flayed in the mainstream press. Sure, principled hackers will avoid evil companies and find better jobs elsewhere, but the globalization of software means that for every principled American hacker there are 10 or more overseas developers who may be less principled but can still produce damned fine code. And maybe cheaper, too.
Sure, he's talking to Google so he has to give at least a nod to the "don't be evil" principle, but I think he's more on the mark with earlier points.
Graham spends some time making a point I do agree with, which is that in the absence of patents (which force at least some kind of disclosure) people will attempti to protect things via secrecy, usually enforced with heavy-handed laws. He notes that this is partly what the Cartel are trying to do, and he's right. He also notes that this encourages some of the worst practices in business.
Graham concludes by stating that he (and his co-investors) advise startups to ignore patents. And they put their money where their mouths are.by taking personal financial risks in such startups. I have to respect that, no matter what else I might agree or disagree with him about.
Michael Wolff has a gush-full piece on Steve Jobs over at Vanity Fair. Wolff portrays Jobs as the driving force behind the transformation of the media industries and, frankly, goes off the deep end. In this view, Apple & co are helping people "take media away from the media business itself." Which would be nice if it were, y'know, true. It's not.
A new movie is set to appear at the end of this month. Called Awesome... I Shot That (or Awesome... I Fuckin' Shot That - not sure which title is correct), the movie is an edited compilation directed by Adam Yauch, one of the Beastie Boys, of the returns from an experiment in audience participation.
The rappers handed out fifty video cameras to audience members at their October 2004 show in Madison Square Garden. The result is another in the genre of "authorized bootlegs". And I'll probably go see it.
I hate the inability of reporters to think critically, acting instead as echoing mouthpieces for whatever corporation, government, or entity has released the press clipping they're using in place of doing their actual job of, you know, reporting.
First up, the headline: "Hollywood studios sell movies on the Web". Actually, what they're selling is the ability to download and view a copy of the movie. So a better headline would be "Hollywood studios sell additional movie viewings via the Web." Let's call a spade a spade and refer to these as "tickets" because that's the model at work here.
Next, the subhead proclaims: A FIRST: MAJOR FILMS ARE AVAILABLE ONLINE TO OWN (caps in original). Leaving aside torrents and other illegal sharing, this ignores every other download scheme that has preceded it. It also carefully elides the key word "some." In fact a better phrasing would be "Hollywood makes some big-budget films available." I dispute the word "own" here because in fact what's being sold is some DRM-wrappered package of bits that you very clearly do NOT own. I own my DVDs. I can copy them, watch them on different players, resell them, et cetera. None of these things are do-able with these latest downloads. Thus "own" is... well, let's be charitable and say it's misleading.
Bravely we soldier forward to the body text where we read: "The films can't be burned onto a disc for viewing on a DVD player. Still, the move is seen as a step toward full digital distribution of movies over the Internet." This prompts any critical thinker above the age of 12 to say "by whom?" What person outside of the Cartel could possibly view this as a step forward? This is along the lines of stores that tell you they've reduced their hours, cut service, eliminated perks "for your benefit." Um, no.
Then we're told that these download tickts "will be priced similar to DVDs -- between $20 and $30." I don't know about you, but the last time I paid $30 for a DVD was quite some time ago. Most are going hot off the legal press for $12-18, depending on which discount outlet you frequent. Perhaps Mr. Gentile shops at more upscale boutiques for his DVDs, but more likely he didn't even bother to check one basic fact before filing his copy.
Finally, we get a quote in which Jim Ramo, chief executive at Movielink (the Cartel arm with exclusive license to sell these tickets) gets to gush rapturously that "Digital delivery hasn't arrived until the major studios allow home ownership, and now they have and now digital delivery is very real." Gag me with a sycophant. First off, digital delivery arrived in my home the day the cable company put in a digital box, about three years ago. Second, "allowing" home ownership makes it sound like the king has deigned to bestow his blessings on the populace. OK, sure, that's how they see the world, but it's still disgusting and shouldn't be mentioned in public. And finally, I think I already addressed the "ownership" lie. Letting a Cartel exec repeat the lie unchallenged doesn't make it true.
OK, I can't bear to continue the point-by-point dissection. The gist is that it's PC-only, some movies, doesn't include Disney at all, only gives a few of the films on the same day as DVD release - most are delayed 45 days - and is just overall a continuation of the sad sorry attempts by the Cartel to defend their antiquated business models. Oh, for a press reporter who would actually report THAT news.
It appears that Chevy has linked up its gas-guzzling Tahoe vehicle with the pop culture sycophant phenomenon called The Apprentice. And is asking people to make promotional videos/commercials for the vehicle. Which, yanno, is a good way to.. um, let some of that good ole 'creative expression' loose
My guess is that this link won't survive much longer, particuarly not once Chevy figures out what it is.
EDIT: as of Friday afternoon either the video is gone or the site is slashdotted - in either event the video doesn't seem to be available at that URL any longer. Here's hoping the author publishes it on another URL.
Ebay and MercExchange got their day at SCOTUS this week and much coverage seems to be along the lines of Jessica Holzer's jibe in Forbes at companies like Merc as being "patent trolls." The gist of this argument - advanced by large tech companies - is that lower court judges ought to have lots of latitude in dealing with situations where patents are found to be infringed. In particular, automatic injunctions are a scary proposition for these big tech companies.
This theory holds (as was originally judged in the Merc vs Ebay case) that if the patent holder isn't actually using the patent, or being harmed by its use, then the proper remedy is some kind of compensation while the infringer continues on about his business. Deep pockets companies like this - they can pay. However, it weakens the positions of patent holders who can no longer use a threatened shutdown to extract the best possible terms. So far so good.
However, the 800 lb gorilla in the room is not really the tech industry, which is riddled with crappy patents. The gorilla, which is pretty damned proud of its patent quality, is bio-pharma. These companies, particularly the drug companies and biotech research houses, see patents as their absolute protection. They base entire company strategies on the principles of exclusive license to market and produce. Permitting an infringer to pay to make copies of a new drug or genetic product would potentially be devastating.
In my book this is still more evidence that computer software and processes need a new and different form of intellectual property protection. Neither copyright nor patent seems right and working (in the sense of 'producing results we want').
Enter MC Lars' world and Download This Song. The song, available for free on Limewire and elsewhere, takes straight aim at the Cartel. The lyrics chastise the record industry for living off its back catalog, treating artists like slave labor, and fighting the download movement rather than working with it. OK, so what?
Well, if the financial numbers are right, this indie hit was produced on a shoestring budget using equipment and capabilities available to anyone. If they're that available, then what's stopping this form from taking off? What's to stop it rendering the entire music production system obsolete? In theory, nothing. There's nothing here that's really new except that this kid from Stanford has somehow made it work. He's getting airplay and touring and he doesn't owe the Cartel a dime.
One man doth not a movement make, but you have to take something like this seriously.
Trademarking common words and phrases is sometimes done and never popular. The reason that the phrases are popular is because they're commonly recognized descriptivves. Forcing people to use other terms leads to language oddities and confusion. For example, did you know that Marvel and DC comics jointly claim trademark in the term "super hero"? Me neither. However, a friend pointed me to Newsarama's story on "Super Hero Happy Hour" being forced to change its name
The Happy Hour comic series features heroes (can't call them super) on their off hours, visiting pubs and relaxing. Its publisher, GeekPunk, apparently received a recent cease-and-desist from the Big Two, though the comic was first published in 2003.
Fellow copyfighter Joe Windish had an unpleasant run-in with Amazon's "Search Inside" feature, and blogged about it here. Essentially, he discovered that the publishers have gotten Amazon to put secret limits on peoples' online browsing.
Back in December, I urged Copyfight readers to go participate in the effort by author Diane Duane to connect her desire to write a particular novel with the audience that wanted to see that novel come into being. Today I got a very pleasant letter from Ms. Duane indicating that many of you did go and vote and that the project is moving forward. Here's a bit more news.
The project has grown its own Web site (http://www.the-big-meow.com) so that the original Blogspot log can be used to discuss how the project is going, in best blog-introspective tradition. The novel itself is also taking shape, with Chapter 1 appearing a couple days ago. If you'd like to keep track of this as it goes along you can email the-whisperer@youngwizards.com (put SUBSCRIBE in upper case in the Subject) to get onto a notification list.
I'm glad to see the project is getting started and it hope it turns out well for both the author and the readers. Like any new experiment there's always a significant risk of failure but without such experimentation we'll never get anywhere. Certainly the large publishing houses and the music Cartel aren't going to drive this bus.
Duke Law School's Center for the Study of the Public Domain has createded Bound by Law?, a comic book on copyright and creativity specifically as it applies to documentary film. It is being published today (March 15) under a Creative Commons License. The comic, by Keith Aoki, James Boyle and Jennifer Jenkins explores the benefits of copyright in a digital age, but also the threats to cultural history posed by a "permissions culture," and the erosion of fair use and the public domain. You can read or download the whole thing for free at http://www.law.duke.edu/cspd/comics/ and hard copies are on sale at Amazon
The book is non-profit, with any proceeds going towards recovering the costs of publication and funding more academic work in the field.
Copyfight friend Branko Collin pointed me to an entry in the blog of Adam Curry, which reports on a copyright victory for Curry. The self-described "local media celebrity" had published photos on Flickr of himself and children on vacation. The photos carried a CC "Attribution-Noncommercial-Sharealike license" but were taken and reprinted by a Dutch gossip magazine. Curry sued and the judge in the Amsterdam District Court upheld the validity of the Creative Commons license, forbidding the magazine from using such photos without permission.
A Copyfight reader pointed me to a Slate story on digital thespians. Epstein talks about two kinds of digital creations: wholly new 'synthespians' as well as digitized representations of actual actors (Tom Hanks for Polar Express; Sean Connery for the From Russia with Love game). Although the technical hurdles to such captures remain quite large - especially if your goal is true-to-life, fool-an-audience reproduction - the reader's question was different.
To wit: what rights do you purchase/license/contract for in creating such a reproduction of a real person? Rights to the "likeness?" Performance rights? Do either of these cover things the actor never physically did or said? Is there an exclusivity clause? There are clearly some issues around the ownership of a character, if that character has appeared before (e.g. Connery's Bond) but usually the character rights reside with the studio. But if you want the Connery Bond instead of a generic James Bond you also have to incude Connery in the deal, as well as whatever studio or estate has the Bond character rights.
IANAL, but I'm hoping some of my readers are or can point me to resources from people who've actually worked in this area.
Following its strategy of smashing torrent-linking sites, the MPAA has filed suits against three companies that provide searches for Usenet content including illegally copied movie files. All three of the current targets have the air of shadiness about them, being essentially anonymous registered shells. However, as Bray points out in his Boston Globe story, success here will likely embolden the Cartel to tackle more well-known Usenet index sites like Newzbin.com and Nfonews.com. And sitting at the far end of that road is Google, which owns a huge database of old Usenet postings and whose index likely contains more than a few files the MPAA wouldn't approve of.
A Copyfight reader pointed me to the Canonist blog, on which we read a report of Pope Benedict XVI being given a gift of a pre-loaded iPod, containing "a sampling of the radio’s programming in English, Italian and German and musical compositions." As the blogger notes, it's unlikely that these tracks were individually paid for, as the RIAA would have us do. We can barely wait until the Cartel's jihad reaches the Holy See.
I predicted back in October that NTP's win would not mean shutting down the service and that's held true so far. The service is hugely popular and so shutting it down, even temporarily, would bring a great hue and cry. Apparently banking on this, RIM are asserting that the NTP licensing terms were "far too prohibitive" and asking for a new trial to determine damage award amounts. Presumably they're trying to wear NTP down while subscriber cash continues to flow into their coffers.
The judge has already been public once about his strong desire to see the parties settle, and yet has been willing to go along with business-as-usual. As I understand it, he has a number of options he could invoke short of a full suspension of service, including requiring RIM to provide various financial securities against a future damage amount, above and beyond the 8.5% of quarterly revenue it is required to escrow now. He could also lift his stay of injunction against RIM selling new Blackberry devices.
Finally, the whole court proceeding could be mooted if the USPTO invalidates the patents at issue. So far, only two of the five contested patents have received "final" review, and NTP has at least two levels of appeal past that, should it come out the loser at the patent office. Since NTP will collect damages covering the period of patent validity (i.e. now and until a final-final invalidation) they also have little incentive to go home. From their point of view the longer RIM stalls, the more the meter keeps running. Invalid patents could, of course, not be licensed to other companies (see RIM/NTP Mud Splashes Microsoft) but with USD250 million already in the bank NTP are not going to be hurting no matter how this comes out.
Matz's ruling agreed with Perfect 10 on one aspect of its claims, that thumbnail images used by Google Image Search are copyright violations. The judge declined to issue an injunction based on Perfect 10's other claim, which is that Google was responsible for providing links to third-party Web sites that, themselves, host images illegally copied from Perfect 10. So linking was OK, but caching was not.
And therein lies the rub. Caching is used in a number of Internet technologies, including proxy servers, media services such as Akami, server farm and load balancing applications, and of course all search engines and services that run Web spiders. Matz is clearly trying to tread a line that both allows Google's indexing business and respects Perfect 10's copyrights. The problem is that I don't think there is any such line to be walked. Either what Google does is fair use and Perfect 10 can go away, or it isn't and we will have to fundamentally rethink Web search and indexing.
(now we see how old our readers are by whether or not they know who Bill Graham was)
John Borland reports for CNET that entrepreneur Bill Sagan has digitized and is Web streaming his vast archives of live shows. This is an important piece of rock history, captured in an era when bootlegs were tapes and fans toured along with bands such as the Grateful Dead and Jefferson Airplane. The archive will begin featuring video later this year, much of it never-before-seen footage. The service is fairly new, but apparently has hit home with listeners. Excuse me while I go set my player pointer.
Or maybe their memories are as faulty as their DRM systems.
As noted in EFF's Deep Links, the RIAA have submitted a comment filing as part of the DMCA rule-making process. In this comment we find the claim that it is not fair use for you to copy your own CDs to your own iPod. Problem? Well, aside from being an absurd claim rejected by tens of millions of consumers, it's also directly contradictory to what these same folk argued in front of SCOTUS during the MGM v Grokster case.
Deep Links has the pointers both to the filing and to the PDF of the oral argument transcripts, as well as the snarky and on-point comment that the RIAA's characterization of personal copies as being "pretty legal" seems to mean "legal until we say otherwise."
(I had meant to post this prior to posting Peter Cassidy's response; apologies for the order-reversal.)
In response to the latest DRM flap, my friend Peter Cassidy remarked:
[T]he RIAA has a patent for placing DRM in ear canals. Apparently, they're going to present new parents with a demand leter at the birth of every child. Install the system, or pay the estimated value of all the music the child will steal in a lifetime. The congressmen from Disney will be considering the legislation for a moment or two before passing it unamended sometime this year.
First, the authors claim that the two DRM systems analyzed - MediaMax and XCP - are more complex than usually described. Secondly, they claim the systems suffer from "a diverse array of flaws" and that these flaws in turn lead to both security and privacy risks for consumers of the audio disks. I have not had time to read the report in depth; if one of you has, please give us a review?
ABC News Primetime are set to air a segment on the radio payola business titled as above. In the eastern US where I live that'll happen tonight. Check for broadcasts in your area. You can search the abcnews.go.com site for the subject phrase to find the info and webcast.
In a related note, Kristin Thomson of the Future of Music Coalition wrote to let us know about the FMC's attempt to push the FCC into actually giving a damn about the current payola business. They have a copy of their letter online. While I'd love to see the FCC actually do something, I have strong doubts they'll do more than make appropriate noises.
The Author's Guild is warning that the proposed "Trademark Dilution Revision Act" is set to eliminate noncommercial use of trademarks. What this means is that an author couldn't, for example, have a character walk into a named fast-food chain outlet without acknowledging the (TM) and possibly even paying for its use. As the AG point out, trademarked names, brands, slogans and suchlike are important parts of modern cultural discourse. The noncommercial use exemption to trademark exclusivity needs to be preserved.
Ralph Koster's blog has a short note about a gaming guild calling itself "The Syndicate" trademarking its name. This is, as far as I know, completely new legal ground. Questions will certainly arise about ownership given that most games' Terms of Service give the game company explicit rights to things created in the game. However, the organization (clan, guild, whatever it's called) is an extra-game and cross-game real-world entity, not something created within the fantasy world. As such, is it entitled to the usual trademark protections? Can it try to impose those protections inside the game world?
I don't even know where to begin in talking about this one. The blog "Gizmodo" has announced the winner of its competition to create a remix track. The track must be "based on the sound of Hitachi hard drives failing". No, really. Hitachi has a page with .wav files playable so that people can figure out what that noise their hard disk is making might mean. The challenge was to remix these sounds (are they copyrighted? can you copyright ambient sounds? can you copyright a sound made by a machine if there's no human intervention to produce that sound?) into a music track.
The winning entry is composed entirely of the disk sounds, and is quite eerie. The runners-up are a little more conventionally musical, but still pretty off-kilter. Fun concept, at least.
Down and Out at MIT: An Evening with Cory Doctorow
February 13, 5-7pm, Bartos Theater (E15).
617/253-5038
Lecture/booksigning by noted copyfighter Cory Doctorow, writer, public speaker, co-editor and blogger for BoingBoing, and European Affairs Coordinator for the EFF. Sponsored by MIT Office of the Arts Student and Artist-in-Residence Programs and Comparative Media Studies. Reception follows in E15 lobby. Free and open to the public.
As long as you expect Disney to feed your brain and just sit there on your couch, Disney & co will always be able to control the content you see. DRM is the smallest part of it...
According to an entry off their RSS feed, PostSecret are looking for "an attorney specializing in trademark or intellectual property law." I looked on their blog site directly and didn't see this notice. Anyone know what's up? When I first blogged about PostSecret in May of last year I noted that they were using appropriated images. Now they have an actual dead trees book out - I wonder if that's what got them in trouble.
Well, yeah. We knew that. But this time it's coming from someone inside the record industry - Canada's Nettwerk Music Group, that country's largest record label. Nettwerk are defending (and taking the financial risk of a loss for) one of the victims of the RIAA's jihad on its customers on the principle that the ongoing legal campaign is not helpful to the artists it represents. No kidding, eh?
Generally, the law assumes that people control images of themselves. There are some exceptions, such as for public figures, crowd shots, public places, events of public interest, and so on. But I've always thought that the principle in US and most Western law systems is that you get to say "That picture is me" and exert some control over it.
Except that photos aren't just intellectual property. Among other things they're means of identification. Passports, for example, contain photos and there are some restrictions on what counts as a legitimate (legal) passport photo in the US. Even if you follow the law you may not be in the clear. A friend of mine recently traveled to Puerto Rico and had some serious hassles with US Customs for failing to look like her passport photo, including the memorable line "Well, you shouldn't have cut your hair." No, really.
Over in the UK, they've been accepting digital photographs of citizens for identification cards. However, people don't necessarily take the best digital photos and, according to The Reg story, the UK Passport Service is starting to wrestle with the maleability of the digital image.
The sequence apparently goes something like this - you take a digital pic that you think is you and submit it as a passport pic. It gets rejected. So you pop it into Photoshop or your favorite equivalent and touch it up a bit. Apparently, this is now frowned upon. So one is left to wonder precisely which photo-enhancing operations are legal, illegal, and which make a "you" image "not you" or vice versa.
I'm no photo wizard, but I regularly touch up digital shots for myself and friends - fixing light and color balances, sharpening features, blurring out unwanted intrusions into the frame, removing redeye. It's all still pictures of them, right? Maybe, maybe not. And if it's not a picture of that person any longer, who has what rights to the image's use?
...except when the Cartel does it. No, really. As this year's Sundance movie festival winds to a close, the MPAA is shamefacedly admitting it pirated a film. Well, sort of. They don't all seem to be speaking from the same script.
The bootlegging apparently took place late last November, when the film This Film Is Not Yet Rated was itself submitted for an MPAA rating. The documentary attempts to uncover the secretive MPAA ratings process, the people who do the rating, and apparently takes a fairly critical look at this process and American culture.
The MPAA is still denying charges... err, well, sort of. Some of the MPAA's officers and lawyers appear to be admitting that they did pirate the movie, but for what they claim are good reasons. Clearly the filmmaker's investigation into the MPAA's movie-rating process and its prejudices hasn't sat well with the MPAA. And, as the LA Times story points out, the MPAA appears to be operating under a double standard - telling the public that "ALL forms of piracy are illegal" but trying to justify its own piracy. Of course, if the MPAA is forced to admit that there are good reasons for making personal copies... well, camel, nose, tent.
(We're back, with thanks to Corante for giving us bigger and better hardware.)
Gavin Baker of FreeCulture.org sent me a note asking for people to sign up for their Pledge to boycott DRM campaign. This is really a "no brainer" for me. I cancelled my Sony-BMG membership years ago when they put out their first copy-locked audio disk and I haven't bought a new CD from a store in almost five years. (I do still buy direct from artists/DJs and haunt used-music stores.)
FreeCulture's modest 500 signature goal has been doubled so far and I wouldn't be surprised to see them get 5000 signatures.
Google has added extra info at the top of its search results for identified artist/band names, CD titles, and the like. The search engine has been doing similar things for other identifiable search tokens such as phone numbers for a while. Music searching, while popular, is often less distinguishable from regular search keywords. The links Google provides include aggregated links to big-name music sellers such as Amazon and iTunes, as well as related sites (artist news, photos), and a link to the specific music search engine http://www.google.com/musicsearch.
Mostly what I expect is that this will mean the rich get richer, as Google will drive sales to the big-name online sellers, though they do include a link for any music seller to request to be listed. There does not appear to be a comparable way for artists to get listed - presumably Google wants them to continue buying Adwords.
An AP story today (here on BusinessWeek Online) tells of Visto Corporation, a startup company, going after Microsoft with a patent infringement lawsuit over mobile email technologies. The suit is apparently based on intellectual property that Visto got in a deal with NTP. According to the story NTP has licensed its winning patents to Visto and has taken an equity stake in the startup.
Microsoft's forays so far into the mobile email market have been tentative, probably because the field is changing so rapidly and Microsoft is still working out its strategy. Visto is also publicly charging Microsoft with the kind of "bundling" that got the software giant in trouble with antitrust regulators in the US and Europe, though it's not clear if these anticompetitive claims are part of the actual infringement suit or just Visto attempting to sway opinion.
Neil Gaiman pointed to this entry in Diane Duane's blog. In it, Duane proposes an experiment in direct creator-audience business. Basically, she has the outline for a third novel in a series where the first two didn't sell all that well. Given the lackluster sales her regular big-market publisher won't take a chance on the third. But there's still a dedicated fan base that wants to see the story concluded, as well as completists, collectors, and those who might want the cachet of owning a novel written "on spec" by a big name author.
A niche audience to be sure, but isn't the 'net about connecting up niche groups and letting them do things they couldn't do as isolated individuals? Duane estimates that the per-person cost of such a book would be USD 20-25 in paperback form. That's a hefty premium over even today's inflated paperback prices (typically $5-8) but not out of the reach of people who are collectors or who are used to paying for specialty items.
What Duane is asking is for feedback on this idea - the email address is in her blog - and for people to publicize the notice. I'm not personally a Duane fan, but I am a fan of experiments in new business models. So I'm publicizing and urging you to do the same. Blog this, put it in places where people who care about publish-on-demand and similar topics will see it.
All you parents - recognize this sequence? First, deny there's a problem. Second, blame someone else. Third, try halfheartedly to fix it but generally make a bigger mess in the process. Fourth, and only when forced, actually clean up the mess. Finally, hang head and make a sorrowful face while promising to do better next time, but don't actually change behavior.
If you guessed "my five-year-old child" you were right. If you also guessed "Sony BMG" you're right again.
Having gone through all the steps, Sony has reached the final stage and is dutifully promising to "reevaluate" its DRM strategy. This is pure media relations and an attempt to deflect criticism. I don't think anything will actually change, unless - or should I say 'until' - Sony is faced with a serious artist revolt. Corporate penitence is nothing - the bottom line is everything.
The school, a public institution, does not have the overriding drive that corporate patent holders do to maximize profit. Certainly there are costs and expenses to be paid and Carol Mimura, currently heading the office of intellectual-property management for Berkeley, seems well aware of that. However, for the past three years the school has attempted to balance its role as entrepreneurial enabler with a role as a responsible social agent. The article details ways in which what they call "the full spectrum of IP-management strategies" has been deployed to produce win-win situations.
Berkeley is famed for leftist/socialist leanings and that will doubtless color how some people read their initiatives. I, however, am heartened to see an approach that is not rejectionist towards the intellectual property system, but rather attempts to use it to serve a multitude of beneficial ends. I think that was what the Constitution's framers had in mind when they set patents and like into the original text.
Robert X Cringely's column looks at two approaches to a "media storage locker" - that is, a company-hosted server on which people or organizations can place media for later download or streaming. The locker concept comes from the theory that there's a key supposedly held by one person and since only one person is accessing the uploaded media it's not a copyright violation. There's also a few serious differences between lockers that store-and-download versus streaming content that never finalizes on the end computer's disk. Lots of questions, few answers at this point.
Another announcement landed in my inbox, this one for "holiday shopping" in case you want to give the gift of music without supporting the Cartel. Freeculture.org has put together a sextet of lists, each with ten suggestions for CDs you can buy while staying outside the grips of the major labels and the RIAA in general.
Brennan Center for Justice Report on Free Expression
Marjorie Heins of the Brennan Center for Justice's Free Expression Policy Project sent me a blurb touting their new report "Will Fair Use Survive? Free Expression in the Age of Copyright Control." The report (PDF) is available online. I have not read the report yet myself, but it's touted as covering threats to both fair use and free expression, at least as these things are understood in US law.
A reader pointed me to a Businessweek Online piece on Sony's spyware fiasco. This brief piece contains one new tidbit, but it's crucial. According to Lorraine Woellert's story the artists themselves are finally starting to get up in arms. About bleeping time.
In my more fanboy moments, I hang out with writers (books) and artists (sculptors, photographers, musicians). For the most part they've bought into the Cartel's propaganda. They're worried about "piracy" and someone "stealing" their work. I don't have many big-name creative friends, so most of the folk I talk to are sensitive to even a small loss of income when they make very little to start with. They tend to believe that DRM is a good thing and that it'll somehow help them get paid more or better.
What we now see is that the exact opposite is true. Musicians and their managers, according to Wollert, are starting to realize that DRM is preventing sales. Bad publicity is the kiss of death and it's really unclear whether any Sony artists are going to escape at least some level of contamination. That translates to lost sales, often dramatically lost (50% drop in one week - ugh).
If the creative corp finally get it through their heads that the Cartel's DRM strategies are only there to fatten executive wallets then we might actually see a kind of revolution from within. As Wendy noted a couple weeks back, the frog may well jump out of the pot.
I also have to hope that The Association of American Publishers will catch on to this. Although the current fiasco is over music disks, there's a very direct and very short line between the meme "don't use DRM to screw up fans' experience of artists' music" and the meme "don't use mistaken interpretations of copyright law to stifle readers' desire to find books."
(well, I couldn't say they were pushed to the rim, could I?)
RIM is fast running out of maneuver room. A federal judge has ruled that the company's preliminary settlement with NTP isn't enforceable, rejected a request to wait for final word from the USPTO and is moving to reinstate an injunction against BlackBerry service in the United States. My guess is that all of these actions could be appealed but it seems likely that RIM would rather settle than fight, even though the settlement costs could be quite high.
On the surface, what's at stake here is the future of the BitTorrent search engine, which was previewed back in May of this year. The agreement by BitTorrent (the company) is to obey the existing law (DMCA) with regard to takedown notices for content deemed illegal that shows up on their search engine. For the most part, this is a no-op. The company more or less had to do this to stay a legal enterprise, and is putting a good face on the inevitable. Presumably, few people trading, say, first-run movies are going to be stupid enough to put their torrent sites into the index of the search engine anyway. So in the end, unless Hollywood somehow figures out a way to put the protocol genie back into the bottle this is going to have just about zero impact on the trading of content via BitTorrent (the protocol).
Looking a layer deeper, this story is about whether or not the Cartel will allow companies that kowtow sufficiently to go legit, especially after showing they can smash Grokster (the company - no effect on music trading of course). As with any protocol, BitTorrent software can be used for any number of purposes. If the Cartel ever want to have a distribution protocol and network for their content they'll have to buy or build something. if BitTorrent (the company) wants to be part of that buy/build answer - and I bet it does - then this kind of agreement is absolutely necessary table stakes.
An anonymous copyfighter pointed me to this story on the BBC detailing the Sony debacle. The story by Canadian law professor Michael Geist paints a picture of a bad situation spiraling totally out of control. I particularly like the unnamed Cartel exec doing his best Michael Brown "how wrong can you get in one sentence or less" impression. Trust me, bozo, consumers may not be able to describe what a 'rootkit' is, but they've heard the word enough to know it's Something Bad and when your product gets linked to public scare words like 'rootkit' and 'spyware' you are in a heap of trouble.
Plus, do you really want to be the one getting called out on the carpet by the US Department of Homeland Security's assistant secretary of policy? His words ought to be tattooed inside the eyelids of every Cartel exec: "it's very important to remember that it's your intellectual property - it's not your computer." Amen.
Geist points out that other publicity debacles (e.g. the poisoned Tylenol scare) led to long-term changes in marketing and business models by the affacted industries and calls on the music industry to take this to heart.
Texas' Attorney General has filed suit against Sony for violations of that state's anti-spyware laws, as well as consumer protection charges. The suit is civil in nature, rather than criminal, asking for up to USD 100,000 per violation.
I've been writing for some time about the way in which the Cartel has gone about controlling the language used in the Copyright Wars - and why I use terms like "cartel" in response. This suit has the potential to seroiusly shift the language-scape. If the consumer zeitgeist begins to see "DRM" and "spyware" as synonymous terms, there could be trouble that far exceeds the tar pit Sony seems to be sinking into.
As Jefferson Graham's story makes clear, consumers aren't happy. Artists aren't happy. Electronics companies aren't happy. But don't expect the Cartel to back down. They'll just batten down the hatches, stonewall, and wait for this to blow over. They're holding on to the fantasy that DRM will save their sinking business models and along the way they'll twist the courts, Congress, and device manufacturers to their wills. The rest of us should, presumably, shut up and suffer in silence.
Update: a friend pointed me to Mark Russinovich's continued flensing of First 4 Internet, the ultimate authors of the DRM package that Sony used. (The content of the page is short; extensive commentary below the posting makes it appear long.)
Pretty much precisely as predicted, there's a new Trojan out that exploits Sony DRM copy protection vulnerability. Details are sketchy at this point - it appears to have been spammed out from a hijacked machine as an email. The best info I've found so far has been Sophos' press release. They have a tool to detect and disable Sony's cloak.
Update: According to Brian Krebs' Security Fix column, a lawsuit has already been filed in California charging Sony with violation of three state-level statutes, and another state-oriented suit will be filed in New York this week.
Update 2: A press release from Electronic Frontiers Italy (which I take to be an Italian EFF-alike) describes a formal request made by that organization to the Italian "Commander in Chief of the Fraud Contrast Group of the Financial Police" in an effort to identify for legal purposes the authors of the malware, whether anyone else is doing similar things, and have them prosecuted under Italian laws that forbid "damaging" personal computer systems. The particular law(s) that apply to this situation aren't spelled out in the ALCEI release, but perhaps that's something the police are expected to determine.
Ina Fried has a story on news.com about the just-published Apple patent application. The idea seems to be that code would be limited to specific hardware and in theory could get around various simulators and virtualization technologies. I find this hard to believe, but perhaps that's why it's "resistant" rather than "proof." According to Fried's story, the OS itself would be obfuscated in such a way as to make it difficult to detect what MAC or ROM code was being read to validate the hardware platform. I haven't looked at the patent application yet, so I've no idea what prior art is cited. My guess is that there's a ton and the patent has little or none of it. Geeks who attack this technology as breakable (which it most certainly will be) are missing the point. This is further evidence that whatever Jobs says in public, Apple is kissing ass hard with the Cartel. Apple want to convince the Cartel that digital content will be locked up tight, using a combination of Intel's hardware and Apple's OS use of it.
I am not a lawyer and so can't hazard much more than a guess, but wouldn't Sony be liable if someone's machine got cracked using the exploit that Sony/BMG installed? They might claim that the flaw lay in the original OS and not in their code, but I can't imagine Microsoft would let that claim stand. Certainly they'd be liable for contributory damages, even if not criminal penalties?
A friend pointed me to a story in last week's NYTimes on the FBI's latest move to extend its reach (maybe it was feeling outdone by the Cartel?). The current scheme is to force libraries, universities, wireless providers in airports and ISPs to do expensive upgrades. Why? So that the FBI can tap your communications better, of course. Universities are threatening to band together in a lawsuit over what they say is the USD7 billion pricetag for this upgrade.
Pushing CALEA out still farther isn't likely to do anything more to catch crooks and terrorists, but since when has efficient use of time and resources been a requirement at DoJ. The ultimate payees, of course, will be the citizens, since the costs of these forced upgrades are inevitably going to be passed on to consumers in the form of higher tuition, additional fees, increased access charges and the like.
Continuing my long string of flat-wrong predictions, I was apparently wrong again in the RIM/NTP case. SCOTUS has denied RIM's request for a stay while the appeal is considered. Since the appellate court has already denied RIM's request it's entirely possible that an injunction against RIM sales could be enforced in the near future. I've no idea what effect this would have on continuation of service to existing customers. An injunction against that would have tremendous impact and would probably be tantamount to forcing RIM to settle.
Earlier this month, the CAFC rejected RIM's request for an en banc hearing of its appeal. As I noted back in August, a CAFC panel held against RIM, upholding most of the patent infringement claims. RIM is asking for a stay while it appeals to SCOTUS. RIM's jurisdictional theory has already been rejected at district and appellate levels. My guess is that SCOTUS will refuse to take the case and RIM will finally have to get into serious settlement talks with NTP. They'll pay something, but Blackberry will continue to function.
Mark Gibbs has a nice piece in Network World discussing the proposal for ID3 tags for music files. The gist is that ID3 tags could be added to any digital encoding format (ogg, MP3, etc) and that these tags could contain information such as table-of-contents. Thus, you could rip a whole album to one file and yet retain the ability to skip around to various tracks within the larger file, using a player that read the ID3 information. In theory, Version 2 of the ID3 tag proposal permits any sort of tag, including very long ones. Given that freedom, it's easy to see that DRMistas and others will have many uses for them, including encrypted watermarks, hidden alternative encodings, and I'm sure you can all think of other amusing nastiness.
Noted tech pundit Walter Mossberg lays it on the line for the intelligentsia, in a column titled "Media Companies Go Too Far in Curbing Consumers' Activities." Mossberg is no copyfighter, but he is very tech savvy and understands just how much DRM can damage existing and emerging technologies. Let's hope that the right people read this column and "get it," too.
According to WIRED, he's moving to go to work for a start-up in San Diego. No idea what on, though it purportedly involves reverse-engineering. Which, in turn, leads me to note that San Diego is within both US and California legal jurisdictions. And, really, not all that far from Cupertino, either.
Steve Knopper posted a small piece on RollingStone.com covering things we already knew about the Apple/Big Four pricing spat. The new tidbit to me is that Knopper says the iTunes contracts with the labels expire next spring. So this is all pre-contract jockeying?
What's another word for "Cartel?" How about "racket?" How about "organized criminal conspiracy?"
That's the charge made by Tanya Andersen, the latest addition to the anti-RIAA supermoms club. Ms. Andersen, a disabled single mom, decided not to roll over and play dead when the Cartel came knocking. Instead, she's gone on the offensive, filing a counter-suit charging the RIAA and the recording industry with Oregon RICO violations, fraud, invasion of privacy, abuse of process, electronic trespass, violation of the Computer Fraud and Abuse Act, negligent misrepresentation, the tort of "outrage", and deceptive business practices.
I don't know where Ms Andersen will get the legal muscle to pursue this raft of charges (she's currently being represented by Lory Lybeck of Lybeck Murphy in Oregon) but if she can make even one of them stick it could be a significant victory against the Cartel's anti-consumer jihad. What she's claiming is that the Cartel is (ab)using the legal system to get peoples' personal information, purely for the purpose of turning this information over to its collection center. She's further claiming that the Cartel's collection agency (err... "Settlement Center") admits to mistakes but won't halt collections even in cases of error. She's claiming that the Cartel intruded on her computer in violation of the law. She's claiming her innocence and asserting that because the Cartel continued its collection activities in the absence of any evidence of wrongdoing that its behavior is "coercive and deceptive."
There's much more detail over on the P2Pnet site. My guess is that the Cartel will do its damnedest to prevent this ever getting in front of a judge and jury. If Andersen can somehow survive long enough and the judge appears unfriendly, the Cartel will offer a settlement and may even promise to reform some of is more egregious abuses. As long as it's not backed up by an actual court judgement they'll feel free to ignore any such promised reforms.
Note to RIAA: quit picking on moms. They're way tougher than you are.
A story in the Reg shows just how muddled up the thinking is around downloaded music and pricing.
Apparently, the standard (ie iTunes) price for a single in the UK is 79p. Out of this, performers get 4.5p. Now the Music Managers Forum, a trade body of artists' representatives, are upset. Why are they upset? Let's see.
This rate is half what artists were getting from CD singles (physical). Has anyone informed these people that the Cartel has been working to kill off the CD single since... oh, 1997 or so? I wouldn't be the first to suggest that the death of this format was a major spur to the upswing in music trading that happened around that time. So if you're making less money now than on a dead format that is iTunes' problem precisely how?
Also, "an artist needs to sell in excess of 1.5m units before they can show a profit." Well, let's see. Who was it put the artists into this forced indentiture where they have to pay up front for production time, tour costs, etc? That would once again be the Cartel. Last time I looked, iTunes wasn't dictating the terms of artists' contracts.
Jazz Summers, MMF chairman further complains that recording companies had been "caught with their pants down" by the legal download services. Hello? What universe do you live in? Caught with their pants down, five years after Napster blew their business model to smithereens? Three years after miserable failures on the part of various Cartel-sponsored and -approved download services? If anyone was caught with his pants down in that situation he's incompetent and should join Michael Brown on the unemployment line for clueless gits.
Thanks to commenter Walter Oaknight I was led to a nice layman-language analysis of the current state of the fight over Eolas' Web patent. The unbylined column in ClientServerNews notes a couple of new things, not least of which is that some of the language in the '906 patent review may give Microsoft an out. That is, the patent language may in fact be valid (novel, not covered by prior art, etc.) but may cover things different from what Eolas says it covers.
However, even if this particular patent is evaded, the column points to another broader patent portfolio that may cover the core technology of displaying inline active content. I'm also concerned that one or more of these patents might be close enough to torpedo AJAX, which I think is the most interesting new tech paradigm to emerge on the Web in some time.