Rizza Barnes of UC Irvine sent me a pointer to a new paper by Tomlinson and Torrance addressing this question. Bill Tomlinson is an Associate Professor of Informatics at UCI (and former colleague of mine from MIT days) and Andrew W. Torrance is a professor of law at the University of Kansas School of Law. The paper appears to be a follow-up to their 2009 work, which also used simulation models to compare how different intellectual property regimes would affect the production of new innovation.

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, stemming from the eBay v MercExchange case in 2006 and as a result fewer companies are getting completely enjoined from producing products; instead, they're getting hit with financial judgments. They then construct computer simulations and human experimental trials to see which way of doing things has better outcomes.

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

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

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

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

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

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

(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.

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

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

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

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

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

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.

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

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

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

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

Copyfighter Jayel Aheram sent me a pointer to his recently published "libertarian primer on the copyright social conflict."

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

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

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

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

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

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.

Tape trading, anyone?

Yesterday I published an entry around "The Cost of Knowledge" petition organized by Neylon. In the entry I noted that the petition did not call for specific action on Elsevier's part.

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

The blog post mostly seems to be "rah rah electronic journals in math" which is all well and good. Yay electronic journals. But it misses points I thought I'd raised in my first blog post, which I'll try to summarize here:

1. What do you expect Elsevier to do? For example, asking them to join the forces opposing the abomination that is ACTA would be a good step in showing they understand why their support of SOPA/PIPA was a mistake.


2. How do you expect a move to publication in electronic journals to impact the all-important tenure and promotion cases that academics must make? I believe it's the tight binding of sci/tech publications to these key career steps that gives companies like Elsevier extraordinary leverage. Until academics themselves work to break those ties I don't think much is going to change.

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

Franzen is concerned for the physical book. He comes across as not precisely anti-technology/anti-Internet, but as someone who sees the creative writing environment and its output as physical books as somehow separate and better. Scalzi is, shall we say, skeptical. Both make good points and are worth reading.

I am myself conflicted. I live my life online and am constantly connected. But I have also been influenced by Muriel Cooper and her love of typography and the printed medium. Books are beautiful and useful in physical form; I don't want e-books to wipe that out. I want the two to co-exist, as each has its benefits.

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.

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

Even though I'm no longer in the research world I still have many friends and colleagues who are, one of whom sent me a link to "The Cost of Knowledge" petition against Elsevier. The online petition sports over 1100 signatures as of this writing, all active researchers and all pledging not to do more free work for Elsevier unless "they radically change how they operate."

The petition lists three grievances: journal pricing, the practice of forcing libraries to buy large bundles of journals, and Elsevier's corporate support for SOPA/PIPA and similar legislation that is antithetical to free and open information flow. Sadly it doesn't list any specific steps that Elsevier should take that would satisfy the petitioners. As an expression of grievance it's clear, but how Tyler Neylon - the petition organizer - expects things to be different is less clear.

The petition also links to the PolyMath Journal Publishing Reform wiki page, hosted by Michael Nielsen, himself a widely published researcher. The blog page lists no fewer than five separate petitions including "The Cost of Knowledge" all of which are trying to use researcher community people power against the publishers.

Although Nielsen's page lists some successes in getting Elsevier in particular to change its behavior, I am dubious that any of the big sci tech publishers will change their practices. These publishers are just as doomed as every other hardcopy publication in today's world, but they can use their monopoly leverage to stave off that doom for many more years. Asking them to give it up is asking for a form of corporate suicide, which they have no incentive to do. If academics really want things to change then they need to start with their own houses; for example, by changing what gets counted for tenure cases and what weight is given to publication in open and online venues.

I've mentioned the existence of highly respected online specialist communities before. These are places where the top people - as recognized by their peers - go to share and discuss new research ideas. People who are experts within the community know who is contributing good ideas and making a difference in advancing the theory of the field. And I'll bet you it matters not one whit to their tenure cases. Change that, and you stand a chance of breaking the sci/tech publishing stranglehold. Until real action happens on the academic side, petitions remain just symbolic protest.

Copyfight spent a lot of time in 2010 talking about remix culture. But even though the remix has now thoroughly soaked into the social consciousness it still needs legal reforms and exemptions to support it.

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

The target of the petition is the Copyright Office's existing (but about to expire) exemptions allowing creators to break DVD encryption in order to sample video clips, and also a forward-looking request asking the Office to approve a parallel set of exemptions for "Internet videos" which would include online vids, streamed content, and other content that just happens not to have been burned down to a specific plastic platter.

One item that is included in this petition but that hasn't been talked about much is the importance of this sort of remixing as political statement and for teaching. From the Arab Spring to #Occupy, a tremendous amount of political action and information has been released solely in Internet video form. Anyone who wants to assemble any sort of educational, critical, or political-statement material on these topics will inevitably have to rely on these videos. I think it's extremely important that these forms of education and action not be barred by copyright laws that are lagging the times. I hope you agree and will join me in signing.

Right, I did promise (at least if you're reading me on Google+) another update on the Apple vs e-books situation. Last week ZDNet published a couple of... shall we say... strongly worded columns on Apple's behavior with its iBooks. The columns, by Ed Bott, are titled respectively "Apple's mind-bogglingly greedy and evil license agreement" and "How Apple is sabotaging an open standard for digital books."

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.

Tim O'Reilly pointed to this PDF from the US Patent and Trademark Office regarding Fair Use.

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.

What started with gushing fanboy squee about Apple's iBooks Textbooks and iBooks Author has devolved into crankiness and upset as people realized what was in the fine print.

Seems that if we're reading the iBooks EULA correctly then if you make something with it you're agreeing to sell that created work through the iBooks store only. You can still give it away anywhere, except of course iBooks only produces content in a proprietary format readable only on Apple devices. And of course selling through Apple's store means forking over 30% to Apple for the privilege of doing so. Never mind the utter ridiculousness of this attempt to lock in book writers, says Chris Foresman at ars: it's potentially illegal as a violation of antitrust.

It was just last August when Apple was hit with one antitrust lawsuit over its ebooks business agreements. Now it looks like they're angling, or maybe just carelessly stumbling, toward another one. Or maybe not. As Foresman points out in the column there's a lot of ambiguity in the language here. Apple isn't claiming ownership or copyright of your created work; instead, it's placing a condition on your use of its software. That latter may well steer clear of antitrust concerns.

Or not. My bet is that some lawyers are going to get very rich off this; if you're an e-books author you might want to steer clear (of iBooks) at least until the dust settles somewhat.

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

First, she correctly emphasizes that the works in question are not your traditional public domain works. In traditional cases works come into the public domain because their copyrights legally expire. In this case the works in question were considered public domain erroneously, and only because the US did not abide by its treaty obligations, specifically the Berne Convention's Article 18. Under that Article, the US should have implemented copyright regulations that protected certain foreign works as they were protected overseas. Eventually the US did that in the so-called Uruguay Rounds Agreement Act and that Act is what was challenged in this case.

As you probably know, the case went to Holder (that is, the US Government) by a 6-2 decision. The Court saw no problem in placing works under copyright that were previously treated as public domain. Following much of the reasoning in Eldred v Ashcroft the Court majority saw no First Amendment problem, nor a copyright statute problem. This has led to some fears in the blogosphere that Congress will now feel it has a green light to claw back other public domain works. Whether this is a new green light or just an acknowledgement of what the government has been doing since 1790 depends on which side's arguments and briefs you read.

The major point of focus of Hilden's column, and one that I think has a particular chord for Copyfighters, is that in his dissent Breyer focused less on the holders of copyrights than on the original creators. Without someone doing creative work, he reasons, there is nothing to copyright and thus the prefatory language — to promote the Progress of Science and useful Arts — in the Constitution that creates copyrights in the first place deserves more respect.

Breyer (joined by Alito) would have the Court adopt a more utilitarian calculus: if a copyright restriction would promote more works then it should pass Constitutional muster. If it would instead prove more restrictive and lead to less creation then it runs counter to the very reason that copyright exists and so cannot pass Constitutional muster. This has been my belief for some time. I think the past century has seen the balance of power swing vastly in favor of copyright holders and against creators, but Breyer's argument helps me believe there is still hope for a reasoned argument to restoring a more equal balance.

The raid on Megaupload and arrests of its principals has brought out a great deal of commentary on both pro and con sides, as well as Anonymous DDOS attacks in response. As Cory Doctorow points out in Friday's post, MegaUpload wasn't just any file-sharing site, it was actively engaged in a tit-for-tat war with Universal Music Group in which UMG issued spurious takedown notices to YouTube and MegaUpload responded by suing UMG and posting a video in which artists who use MegaUpload praised the site.

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.

As noted, I was on a copyright panel with Richard Stallman this past weekend. The man certainly has mellowed with age (though I'm glad I wasn't on the "Steve Jobs' Legacy" panel with him). Prior to the panel he handed out a sheet titled "The Danger of E-books", which you can find online at his site.

The points he raises are mostly ones we've discussed over the past few months - ownership questions, proprietary formatting, restrictive DRM and licensing, and so on. But I thought it was worth blogging about his first point,which is just forehead-slappingly obvious and yet somehow I missed it. E-books - at least as they are sold by major providers today - pose a major privacy risk that physical books do not.

As Stallman notes, you can walk into a store and anonymously buy a physical book, often just with cash. At most you might be required to show proof of age for some materials but no record is kept of what you show. Contrast that with e-book purchasing, which requires a logged-in identity that is linked to credit cards, bank accounts, and other hard-to-remove traces. These purchase records can then be subpoenaed or seized by authorities who might have an interest in what you've been reading - bought any books on agricultural fertilizer lately? Or maybe you live in a Middle Eastern country and your government suddenly cares that you've been buying e-books about how to build apps that connect to Twitter's API.

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

I have several things I've been holding off blogging. Between being away at Arisia, catching up afterward, and skipping posting yesterday in support of the anti-SOPA/PIPA protests (you did call your Congresscritters, right?). Also, we're getting spam-comment bombed lately, which is dragging on the servers. The auto-filters catch a lot of them, but not all. Apologies in advance - I will clean things up ASAP.

Joe Konrath writes the blog "A Newbie's Guide to Publishing". In yesterday's post, called simply "$100,000", he lays out his facts and figures to support his hundred K in profits (not sales, mind, you that's profits) on his self-published e-books on the Kindle platform.

He is, naturally, happy to crow about how much he's making on books that major publishers rejected but the deeper points here are what I want to dig into. For one thing, Konrath is actively managing his sales, with data gathering and experimentation around good pricepoints. For himself the sweet spot seems to be about USD 4 or UKP 1.5. This is interesting as other authors have found different pricepoints to work better and worse. What we don't know is what are the factors that make those pricepoints the winners for one author and the losers for another author.

Second, Konrath is clearly pleased at being pulled along in Amazon's wake. All the marketing and expansion of Kindle sales into new countries is expansion of his potential market. For English-language (or at least English language-reading) countries this is a zero-cost expansion, which is important in an environment that features shrinking markets and shrinking opportunities for physical books.

And that leads to the last interesting point, which comes up a bit in the comment thread below the blog post: what happens when the e-reader market saturates? Or more likely, what happens when the Kindle market saturates to be replaced by Kindle Fires or Kindle Novas or whatever comes next? Will Konrath's books still be available on those new platforms? At what cost to whom? How many highly successful e-book authors can the market support? And so on and so on.

More and more the e-book business is starting to remind me of the stories I've read of gold-rush California. A few people got very rich, a lot of people made some money, and a whole lot of people went broke or got hurt along the way. If someone has a formula yet for telling the likely winners from the likely losers I have yet to see it. 2011 saw the outlines of such a guide, compose largely of personal experiences; I expect by the end of 2012 we'll have some really good and decently tested principles. Until then...

(h/t +Mathew Murphy for the pointer)

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

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

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

Roger Ebert has a column up this week with his top 6 reasons why movie theater attendance is plummeting. Hint: piracy isn't on the list, though the ease of getting movies in the home via services like Netflix is.

No, once again it's the same deadly duo: high prices and bad customer experience. Prices on both tickets and concessions are sky-high and people seem not willing to pay for it, given that they're likely to have to sit in a crappy theater with an aisle down the middle, deal with obnoxious teenagers and compulsive texters, and have their in-theater options restricted because indie and non-US films aren't getting wide distribution.

In my comments on Dan Gillmor's "Swindle" rant I remarked that I thought e-book buyers were not particularly price-sensitive because they're locked in. For movies that's less and less true and so we're seeing price sensitivity. I wonder, also, how much of this is due to the crappy economy. If people are making good wages and not afraid of losing their job or their house they may not care so much if they pay an extra $3-5 per e-book or per movie. But that's not where we are and I wonder if people who are unhappy with the pricing are expressing part of the larger economic malaise.

(h/t Boingboing where I first saw a pointer to Ebert's column.)

After what seemed to be a more-or-less throwaway remark about how he was tired of readers griping about e-book prices, Scalzi this week devoted a fairly lengthy column entry to the topic.

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.

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

The result is, as Gillmor says, "a terrible deal for the customer." Whether that terrible deal will lead more people to think twice before they buy e-books is still up in the air. Gillmor says it has changed his behavior, so maybe that's so. But I tend to think that once people have taken the plunge and bought an e-book device they want to keep feeding that habit. Ferpetessakes people pay $3 and up for a measly ringtone. I think the demand here is not particularly price-sensitive and in that respect publishers' greed isn't going to have much impact on adoption. Sales figures for December e-book/physical book purchasing should be out in the next couple of weeks and we'll see whether Gillmor or I am correct.

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.)

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.

FOSSPatents is rapidly becoming my go-to site for everything related to European patent shitstorms. Yesterday's blog entry recounts how British Telecom is suing Google over, approximately, everything.

BT alleges that Google's services - everything from Maps to Google+ - violate half a dozen patents that BT owns. FOSS includes a scribd link to the complaint and pointers to the six patents in the USPTO system. The patents themselves are old, and dense, and very broadly written. My extremely un-lawyerly opinion is that Google is indeed violating the patents as written, which means that either they pay up or they get the patents narrowed/invalidated. Given my fundamental believe that most software patents are overbroad crap issued without even a semblance of respect for prior art the choice for Google boils down to what would be less expensive: license or invalidation.

Neither is pleasant or cheap and the situation is muddled by the fact that BT is (according to Mueller) the fifth big company to sue Google over IP violations. Google thus has to consider the effect that settling any one of the suits would have on the others.

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

Jenny Shank at Mediashift has a column that starts off with the interesting title "The Trouble With Gifting an E-Book". She's right: e-books make much worse presents than regular books, but sadly she misses many of the important reasons why. Shank's column is a lovely bit of nostalgia about the personalization of gifts and the feel of the physical book. All true and good, but really kind of missing the mark. Let me tell you why e-books are lousy gifts:

Books are one-size-fits-all. Unless your reader needs a large-print or Braille edition, a book is a book is a book. The e-book for your iPad friend is not the e-book for your Kindle friend is not the e-book for your Kindle Fire friend is not the e-book for your Nook friend even if they all have the same name. The near-complete lack of interoperability between these devices is stupid beyond belief. Of course, you can get someone a gift card but we're talking about gifting books here.

Books are actual gifts. You give a book, and the recipient owns it. He or she can share it with friends, donate it to a library (unless imbeciles get their way with destroying first-sale doctrine), pass it on to their kids, and so on. When you gift an e-book, you're just letting someone rent it and that rental can be modified or yanked back by the e-book publisher or distributor at will and often without notice.

Book gifting is simple. Find a book, buy it, wrap it, send it along or hand it over. E-book buying remains such a complex mess that there are actually whole Web sites devoted to helping people through the convoluted processes that each seller has established for getting e-book.

My family has long had a tradition of special holiday presents delivered at year's end by "The Book Fairy." I don't think the fairy's going electronic any time soon.

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.

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

Oh, and there's a good chance the US Government (Senate) may get its fingers into this pie: according to Boingboing and Ars Technica, Senator Ron Wyden has promised to get up the nose of the Immigration and Customs Enforcement division of the DHS over domains that were seized based on (shaky) claims of copyright infringement.

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

Remember back in August I noted a class-action suit around alleged e-book pricing collusion? Well now the feds are involved. Yesterday the L.A. Times reported that the US DOJ is investigating "potentially unfair pricing practices" by the big five book publishers. DOJ joins Europe's cops and some states' attorneys general who've all said they are investigating.

Investigation is a long way from indictment, however, and I suspect we won't see indictments come out of this. If the big publishers feel the heat they'll probably enter into some kind of negotiated settlement promising to play fair. And the prices of e-books will remain sky high.

News flash: the government is incompetent. It is manipulated by ignorant selfish thugs from the RIAA into using extra-legal proceedings to shut down speech (blogs, in this case) that the Cartel doesn't like.

I mean, seriously, we're in roughly the 12th or so year of the Copyright Wars and this is not even vaguely news. I should go back in the Copyfight archives and dig up my old postings like the first time the RIAA used the cops (L.A. at that time) or the first time I noted that the Cartel had taken over DOJ more or less wholesale. But I can't be arsed to do it - the song remains the same year in and year out and I'm tired of it.

Still, props to Techdirt for its extensive and meticulous documentation of this latest manifestation of the disaster.

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

Vaughan-Nicols is pretty damned clear: Apple is engaged in a world-wide war on Samsung and Android in an attempt to drive them out of, and monopolize, the tablet space. There are at least nineteen related lawsuits happening in nine different countries as Apple tries to use its patent portfolio to bludgeon competition out of the marketplace. No wonder I was confused.

Vaughan-Nicols notes that this massive campaign is starting to draw regulatory notice, which is not bad but kind of a case of the horse already having left the barn. If the problem is the overuse of overbroad patents to monopolize a marketplace then the answer isn't to retroactively fight those patents; the answer is to tighten up the patent-issuing system so that crappy overbroad patents stop getting issued in the first place.

I promise I'll talk about drugs in a minute, but first I want to meta-introspect...

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.

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

Then there are stories that never quite materialize, despite my hopes that they will. Earlier this year, news went out that some of the most popular (blockbuster big-selling) drugs were going to go off-patent this year. For much of the past two decades the drug industry has made huge profits off these blockbuster drugs - hundreds of billions - and patents have played a key role in protecting those profits. Patents prevent other companies from copying the drug and selling it cheaper or making a generic version. Drug companies have developed an elaborate rolling shell game of patenting in which they continue to protect their drugs by developing variants, improvements or new delivery mechanisms for the drug that can then be patented. A drug originally marketed (and patent-protected) as an injectable may then be re-patented and further protected in pill form or inhaler form.

The problem with this is that sometimes these medicines are essential, life-saving treatments and intellectual property ends up killing people. This is usually justified by the huge expenditures necessary to create and test a drug as well as shepherding it through the FDA approval process. The figures I've seen for that range from USD 800 million up to 2 billion dollars. Of course, I've also seen figures claiming that drug company spending on advertising and promotion dwarfs their spending on R&D, by up to 6:1. So I'm not wholly sympathetic to big drug companies crying poverty.

At around the same time the stories about drug patents ending hit there was an interesting item on my local PBS station, WBUR, about one-person drug companies. The idea here was that these companies - often a sole proprietorship of someone who had spent decades working at a larger pharma company - could provide a much cheaper way to get new drugs into the pipeline. You still need a big organization to run the large trial studies that the FDA requires, but the process of drug design, modeling, and small-scale testing can be done by renting lab space and equipment at about 1/10th the cost of a big company doing it.

Sadly, despite the promise of new ideas and cheaper ways to get things done, nothing much has materialized on this front. So the story sat in my unfinished file for months and probably would have been dumped if not for two related items that came through my news stream recently. The first is a nice little five-minute piece from PBS News Hour on the ways in which companies have dragged out the last bits of life from their patent-protected drugs and also the multi-billion dollar question: is the era of blockbusters over?

If it's true that drug companies can no longer depend on huge-selling drugs to prop up their profits then they may have no choice but to diversify and to farm out production steps to cheaper alternatives. 2011 didn't see any big changes, but I'm now wondering if 2012 may be the first year of an upheaval in the drug business such as we've seen this year in the publishing business.

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

At its heart a patent is a government-granted monopoly. It's a quid pro quo that's so fundamental it's even in the Constitution - you do these useful things and in return you get all these legal protections. But there's nothing to say we couldn't also have another quid pro quo, and that's what Sanders is proposing. Drug companies would forego their monopoly protection (which comes with no guarantee of income) in return for guaranteed income with no monopoly. Specifically, Sanders is proposing the government fund a $3 billion/year pool of prize money that would be outright awarded to innovators. Interestingly for us open-access types, Sanders is also proposing that at least 5% of that money be set aside for "any individual, business or nonprofit organization that openly shared information, data, materials or technology that contributed in a positive way to the development of new drugs."

In the current economic climate and political deathlock I doubt Sanders' proposal will go anywhere, but I am pleased to see at least some people thinking creatively about new ways to handle intellectual property in tricky circumstances.

And to my few readers who made it this far, thank you for suffering through with me. I'll try to make my posts more coherent as a general rule.

The canonical discussion of access-control mechanisms such as paywalls and DRM is that people ought to pay for stuff. That's not a wholly ridiculous idea; I've repeatedly asserted that creative people ought to get paid for what they do.

The problem? How do you know who has and who has not paid, particularly when you present your content in multiple ways on multiple platforms? This was brought to my attention by a column written by usability expert Jakob Neilsen.

Neilsen critiques the Wall Street Journal's iPhone app for its confusing user interface. In particular, the app appears to be asking people to pay twice for WSJ content. This causes the app to get horrible reviews. Neilsen points out that a fairly simple redesign could fix this particular app's problems, but I see this as symptomatic of a bigger issue.

By paywalling its content, the WSJ has taken on the burden of keeping track of who has and who has not paid. And, sensibly enough, the human being who pays for the content feels like she ought to be able to access the content she paid for, whether it's on her desktop or her mobile device. In fact, what is happening is that the WSJ, through poorly thought-out design, is transferring this burden to the end users who are then pissed off by being asked to pay twice for the same content.

Entities (people, corporations) who lock up their content behind automated mechanisms need to start paying attention to this, or they're going to be dealing with a lot more pissed-off customers. Paywalls already cut your subscriber base significantly (90% or more from figures I've seen). How much does it cost you to alienate that last 10%?

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In 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.

David Post has been heavily involved in Viacom v. YouTube for many months. Recently he posted to Volokh Conspiracy an item he wrote as an op-ed that never got published, as arguments in the case began yesterday

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.

It really does seem like 2011 is the Year of The E-Book Kerfuffle. The latest contestants for the Idiot Response To New Media Award are Barnes & Noble and Books-a-Million. These two fine establishment chains (both retail giants) have decided to stop selling hundreds of titles published by DC Comics. Why? Because Amazon got the digital rights to these graphic novels and comics in an exclusive arrangement for its new Kindle Fire tablet device.

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

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

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

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

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

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

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

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

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

Another quick update on a story: back in early August I noted that Felicia Day was making something of a trailblazing path through Web video production and how that allowed her to retain creative control. In a new interview with Kotaku she talks about her next Web series, a production done in the EA/Bioware Dragon Age universe.

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.

Contrary to my off-hand assertion about the replicability of community models from mathematical sharing groups a couple of items came to my attention today that argue the opposite case: that these communities are not like others.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A quick bit of follow-up to yesterday's thought question on ebooks vs poverty:

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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.

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

Anyone got a fuller/better story?

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

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

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

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

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.

Since I took Greg Sandoval to task earlier this year for failing to do good reporting research, I think it's only fair that I point out when he's done an excellent job. Case in point, his piece this past weekend for CNET, "What's driving rise in music sales?"

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

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

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

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

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

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

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

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

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

A perfectly designed extortion scheme

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.

David Bernstein at Volokh Conspiracy pointed out that the University of Chicago Press bookstore is selling the full digital PDF of his book for USD 45, the same price as the hardcopy, and more than the Amazon Kindle edition ($30). But they're also offering a 30-day license to read the PDF for $7.

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.

And by "its own" here I mean "a big enough business to be profitable and competitve". Long-time readers will remember that I've been circling around the issue of self-publishing for years. Each time I look, it seems that the business is still full of landmines and pitfalls for authors and publishers alike.

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

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

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

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

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

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

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

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

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

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

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.

Back in 2009 I noted that 50% of Pandora's revenues were going straight to the Cartel. Despite the advance of time the situation hasn't gotten any better. Marketwatch reports the same costs to the company for 2010, and the situation may get worse if rights-holding organizations seek to require Pandora to pay the planned increase in public performance-right fees for all Pandora subscribers. Currently they pay $0.00102 for non-subscribers and $0.0017 for subscribers. In 2015 those rates go up by 37% and 47% respectively

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.

Television writer Chad Gervich has some pretty strong opinions on people who are concerned about protecting their ideas in the world of television script-writing. In a piece for Scriptmag online earlier this month he responds to readers' questions about the need for registering their works with the Copyright Office or the Writer's Guild (WGA).

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.

Apparently it's WTF month here at Copyfight. Another one that has me scratching my head: a story in the NY Times describing the increasing frequency with which dictionaries are being cited as reference materials in judicial decisions.

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.

I wonder what they'd make of Urban Dictionary.

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

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

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

David Post had an interesting blog post last month asking the question of whether a tattoo is a copyright-protected item. The case in question involves a custom-designed facial tattoo created for Mike Tyson, and duplicated for actor Ed Helms in the film Hangover 2.

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.

I'm working on a longer piece about a sea change in drug pricing. Long-time readers will know this is a perennial favorite topic of mine, as I worry about the intersection of intellectual property law and policy with life-or-death situations.

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

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

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

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

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

And more people will die.

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.

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

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

Do pictures of stockbrokers on the trading floor of the New York Stock Exchange belong in a story about insider trading? If you're Talking Points Memo, yes. On the other hand, if you're NYSE, no.

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

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

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

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

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

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

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

This is not exactly a remix - it's more of a 'choose your own ending' with a remix twist. According to Variety, the writer (and director) of the film, Leone Marucci, has invited people to write their own ending for the film. In order to do this, raw footage, prerecorded audio tracks, the script, and editing tools on the film's Web site are being made available for online fans.

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

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

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

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

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.

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

A friend pointed me to an interesting blog entry from Weird Al Yankovic on his difficulties getting permission for a parody of a new Lady Gaga song. The blog entry describes his attempts to get permission from Gaga for a parody song Al intended to be the lead piece on his new album.

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.

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

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'm not happy with either answer.

A couple weeks ago I noted an actual mainstream news story about an IP issue - the drug maker KV Pharmaceuticals raised the price on a drug (marketed as Makena or commonly called 17P) that used to cost $10 per shot. The new price? $1500. Ouch. Then on April 1, KV announced they were dropping the price... to $690! April Fools!

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

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

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.

In 2007 I posted an offhand query asking for peoples' opinions on Createspace. This remains one of the most popular items on this blog - every so often someone will drop in to share their thoughts or experiences or complain about the world of self-publishing.

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.

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

A friend pointed me to Austin Kleon's blog entry on how artists find material and get started on a creative life. Kleon adapted the entry from a talk he gave about his own experiences as an artist/creative person and the lessons he wished someone had laid out for him.

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

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

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

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

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

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

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

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

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

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

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.)

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

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

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

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

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

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

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.

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

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."

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

This morning NPR did a piece on the various celebrities, including Usher and Beyonce, who are presently squirming for having performed private shows to the family of Libyan dictator Moammar Gadhafi. This points out an unpleasant side to the patron model, a model I've mentioned here several times - what happens when your patron is a scum?

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."

(No, not that conspiracy.) Over at The Volokh Conspiracy, David Post has a stinging rebuttal to an idiotic New York Times opinion piece.

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

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

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

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

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

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

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

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.

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

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

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

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

Cory Doctorow has a do-not-miss post up at Boingboing summarizing the current status of Diane Duane's experiment in trying to get potential readers to subscribe to an upcoming book and thus subsidize its writing. This is a variant of what I called "writing for those who want to read" and was intended to get a book called The Big Meow written and published.

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.

Earlier this week Sean Bonner posted a piece on Boingboing covering this ground. The blog entry is a bit long but well worth reading.

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

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

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

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

The RIAA's legal wrecking crew continue to assimilate the US Department of Justice. In their latest move, Donald Verrilli Jr. has been nominated by Obama as the nation’s Solicitor General.

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.

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

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

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

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

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

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

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

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

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

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.

I've written before about the way that intellectual property and sharing concerns have held back the use of different typographic styles on the Web. It looks like the long impasse may be about to end.

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

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

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

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

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

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

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

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

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

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

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

That, and some additional comments about "every fresh-faced, freckle-faced college kid who downloaded material" has attracted the attention of Anonymous who have responded by taking down a couple of Simmons-associated Web sites via DDOS attacks.

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.

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

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

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

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

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

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

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

...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.

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

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

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

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

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.

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

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

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.

My father sent me a pointer to Robert Darnton's review in the NY Times titled "A Republic of Letters". The review discusses the new book by Lewis Hyde (see also http://www.lewishyde.com/) called Common as Air: Revolution, Art, and Ownership.

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.

Xeni Jardin at Boingboing pointed at an experimental film by François Vautier that is a great example of the way digital technology is enabling new forms of (derivative) art.

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

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

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

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