Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.
Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.
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.
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?
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.
I've been avoiding writing about the LimeWire debacle, not least because of potential conflict of interest (*). As always, I speak for me and nobody else. Not Corante, not my company, and certainly not Gorton or LimeWire.
With that out of the way, let me just say: CNET, you're wrong. Your headline writer is wrong, and Greg Sandoval (whom I normally think better of) is wrong. Allow me to demonstrate.
the percentage of Internet users who download music via peer-to-peer services was at 9 percent in the fourth quarter of 2010, compared to 16 percent in the same period earlier in 2007
Well, that certainly seems significant. In the three years since LimeWire was shut down, fewer people admit to shar... wait, you mean LimeWire wasn't shut down three years ago? Err, no. It wasn't. It was shut down in October of 2010. So approximately 2.5 months worth of LimeWire absence was included in the period measured, out of a total of 36 months. For those bad at math, that's less than 10% of the time.
The claim, then, is that an event that happened in the last 3 months of a three year period somehow caused a retroactive drop? Either that violates causality as I understand it, or someone in the P2P industry has invented time travel and isn't sharing it. Or maybe, NPD is full of shit and Sandoval is guilty of just repeating what he's told rather than thinking for himself.
To cut NPD a small amount of slack here, they do admit that former LimeWire users are moving to other sharing networks. But really, this is just marketing puffery. NPD has no idea what caused the drop in self-reported file sharing over the past three years. Maybe it was that people thought it was an increasingly bad idea to admit that they used LimeWire to random marketers when there was a relentless stream of bad headlines about LimeWire.
I found the above two links in under 15 seconds of "research". Were I an actual paid reporter - as Sandoval purports to be - I would have done some actual research (which is different from "market research" puffery issued to please a paying client) and found out more about where the music sharing has gone. P2P networks still have significant traffic in copyrighted files. But YouTube and Twitter and other "Web 2.0" sites have picked up an enormous amount of the slack.
And were I an actual paid reporter, I might have dug into what I think is possibly the most interesting music-sharing story of 2011, which is that people aren't downloading music as much anymore, but they're sharing it more than ever. Streaming music, both legal and illegal, is finally taking off in a big-time way. People no longer feel as much need to have their own copy of an MP3 on their disks because they're confident they can be connected all the time to a network that will supply them the sounds they want when they want it. Between broadband penetration to homes and a proliferation of pocket devices (mostly calling themselves cell phones) that have the ability to stream low-bitrate MP3s or better, we are likely to see the local storage of media go the same way as email has gone in the past decade. And that will impact old markets like P2P networks far far more than yet another sharing company shut down by the Cartel.
I hope to be writing more about this in the rest of this year.
(*) In my day job I work for a company in which Mark Gorton is a major stakeholder. I've met him twice at company parties. He has no impact on my livelihood directly, but the case against LimeWire has affected all the companies in which Gorton is invested. So there's a potential conflict that readers should know about when they consider my writing.
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.
Why? Well, it seems that Mr. Williams is at best uninformed and at worst... um, I think the word is lying about what Creative Commons does. It seems to have started with a tweet from Mike Rugnetta. He got a fund-raising missive from ASCAP and posted a picture of it.
In the letter, ASCAP asks for money to fight organizations like CC, EFF, and Public Knowledge that, it claims, are trying to undermine "our" copyrights. Oh really? This isn't the first time ASCAP has misrepresented what CC does, as Lessig points out in his response on The Huffington Post. Sadly, Lessig isn't calling for pistols at dawn (dueling is illegal in the US, if you get right down to it) and his challenge is entirely too gentle.
But it's there, and you can read it. I doubt Paul Williams will read it, and I doubt he'll respond. It's not that I think Paul Williams is right - it's that he cannot possibly win this debate and he'd be a fool to get into it. He doesn't want to hand CC or EFF or Lessig any more free publicity.
Which is where I, and I hope you dear readers, will help out. Publicity for this kind of thing is really the best response. Respond to lies by stating the truth; respond to confusion with clarity; respond to uncertainty with understanding. And just in case you get the chance? Slap Williams across the cheek with a white glove. Do it for me.
What you have there is a real musician, Lenny Kravitz, coming unexpectedly on a group of people performing his music ("Fly Away"). So what does a real musician do? He doesn't ask about if they have the right to play this music - he listens, he claps, he jams with them, sings with them, and generally delights the audience as well as the performers.
If you wanted evidence that Weidenbaum was right, here it is. This is what musicians do; this is how music is made and loved and passed on. Uptight Cartel executives take notice, please.
...even if the (current) music industry dies the death it seems so richly to deserve. So assures us Marc Weidenbaum , publisher of the online electronic 'zine Disquiet. Normally, Disquiet only has things to say about its musical topics, which are primarily ambient and electronic music.
However, in the May issue of The Atlantic, editor Megan McArdle took to task the current generation of "freeloaders", complaining that "...a generation of file-sharers is ruining the future of entertainment." Are we, now? Responding to the news that last year was yet another dismal year for the recording portion of the Cartel, McArdle recites figures that lament the aging of the music acts that pull in big bucks. She's apparently completely unaware of the club scene, the DJ scene, the remix scene or - frankly - anything that someone under 30 would consider modern, new, interesting music.
It's true that if your concert tickets are $200 each then you're not going to get a lot of young people at your shows. But really is that something wrong with the audience, or with your ticket price? It seems that McArdle is confusing a couple of different concepts here.
Weidenbaum points out another fundamental contradiction in the piece - the conflation of "the music industry" with "musicians." And to point out that contradiction he wrote a response and commissioned something very much like a musical (ambient) score to go along with that response. He asked ambient musicians to riff on the illustration that accompanied the Atlantic piece (which itself might have been technically a copyright violation) and then he goes to town on McArdle.
Google did not have the right to make wholesale copies of millions of copyrighted books without permission from the copyright holders. Google's original plan fails every possible fair use test ever tried. See, for example, American Geophysical Union v. Texaco.
If copyright is to mean anything at all, then corporations may not copy entire works that they have never purchased without permission for commercial gain. I can't imagine what sort of argument -- short of copyright nihilism -- would justify such a radical change in copyright law. [...]
If the University of Michigan wanted to do this copying for its own patrons, then it certainly could. I wish more libraries would push their rights under copyright. But corporations do not have the same leeway as libraries. Libraries work for us. Corporations work for themselves. [...]
So I am very pleased that Google has decided to work with publishers (like it said it would originally) to convince them that offering their text in searchable form is good business for all. I still have some major problems with the contracts that these libraries signed with Google. I think the libraries are getting played badly here and they are violating their own principles of openness and public service by letting Google take charge and set the terms of this service.
Google might be a very good corporation -- one of the best ever, probably. But it's still not a library. Let's try to remember that.
[The] caselaw doesn't amount to what Siva implies it does. Though it's only a brief citation, it seems Siva seriously misreads American Geophysical Union v. Texaco. The court didn't rule against Texaco because it was a corporation. In fact, the appeals court specifically disagreed with the district court's "undue emphasis" on the for-profit nature of Texaco.
[...]
We can put aside caselaw and go to straight-up normative analysis - Siva thinks that this Google Print is bad, bad, bad. What I see is gross hyperbole. What Google's doing is nothing like widespread infringing file-sharing on P2P. Sure, they're copying the entire book, but they're only providing small selections. I don't see how that amounts to a "copyright meltdown." (I know that you can try to do different searches to over time accumulate the whole book, but Google does enough to frustrate that, I think.)
Libraries good, corporations bad doesn't ring true for me. Without a doubt, I'm glad that people are becoming more skeptical of Google, despite their "we're not evil" mantra. However, in this case, Google was providing an important public service, one that happened to benefit the company commercially, but one that also did not pose a serious threat to copyright holders (in fact, it probably would help them), and for those reasons I think Google Print should be lawful.
Scrivener's Error has an interesting (and harsh) critique of Stallman's essay (Time is of the Essence). Petit of Scrivener's Error focuses on the limited term of patent. He's right about that, but I imagine that a patent on literary works would have a tremendous effect on the market nevertheless. I suspect we would be looking at much more consolidation among publishers, for example. And a market that is much more expensive to enter.
There's a good conversation going on over in the thread replying to my latest screed on the Apple v Does case. I wanted to opine a bit in response to a comment from Seth Finkelstein. He notes that "Journalistic purpose isn't a get-out-of-court-evidence-free card" and that it's a boundary we as society have to draw. He's not arguing where the boundary should be, but I want to, in part because I think the boundary goes right through the middle of me.
(I want to be crystal clear that I'm speaking in this post solely for myself. Not for anyone else who posts here, nor for any other blogger and certainly not for any organization.)
On the one side of this line, I don't think I'm a journalist. In my mind a journalist is someone who reports on, investigates, publicizes events from the world and makes them known to an interested public in the service of making that public informed. I think we American intellectuals agree that one of the ideals of democracy is action and decision taken by an informed public.
But that's not what I do. What I do is point out things other people have done, or said. I give emphasis and weight to what I find worthy, and I push an overt agenda. On this side of the line what I'm doing is much closer to editorial than reportage. What I strive for is less an informed voice than for a sea of voices distinct within the stream of debate.
I don't much like nor respect the current American journalistic notion of "fairness." There are not always two sides to a debate; sometimes there's one or there are many. Nor should a voice be constrained from calling a spade a spade or labeling bullsh*t as bullsh*t. You may notice that the sources I quote from (Cringely, Aharonian, Geist, etc.) are often strongly opinionated. I may not always agree with them, but I respect them trying to take a stand and expand the boundaries of discussion rather than just regurgitating the latest anonymous AP wire item or White House release.
If that's the image, am I journalist? I'd lean towards "no."
But then we get these emails. People read what I write and send me pointers or information. I like getting these emails and I'll often write entries in response to them. If someone mailed me something and asked me to keep their name out of it, I'd do it. Pretty much without thinking. I was brought up watching the Watergate hearings and I believe in the (at least theoretical) power of the press to balance out the powers and expose the corruption of our institutions. I recognize that the ability to have and protect anonymous sources is essential to that function. I believe that any time a reporter gives up a source we weaken the whole structure.
If that's an aspiration, am I a journalist? I'd lean towards "yes."
So, pax Seth. I recognize you're not trying to argue where to draw that boundary. But I think we bloggers had better have this argument, and damned soon.
BoingBoing links to a new "copyright experiment" (Monolith and digital copyright). The software project, called Monolith, takes two digital files and XOR's them (what the author refers to as "munging"), creating a third file. The author calls the two input files "element" and "basis." I think many people might call them "plaintext" and "key." The output file (aka the "monolith" file) would be called the "cryptotext."
The conceit of the concept is that neither the cryptotext nor the key is copyrighted. Thus, it should be legal to distribute both. Otherwise, the author of Monolith claims, everything is copyrighted and nothing can be distributed because there is always a number such that, if XOR'd with another number, will produce a copyrighted work.
This argument is not new and it not terrible interesting. It basically postulates that any encrypted transmission of information is actually not a transmission of information at all.
UPDATE 1330 PT Toehold did the work I was too lazy to do and has a brief history of the concept of evading copyright this way It's still rockin' XOR to me.
Posted over on my blog and on Joe Gratz's blog... you can find the testimony of MaryBeth Peters (PDF), Register of Copyrights, in an oversight hearing this morning before the House Judiciary's subcommittee on Courts, the Internet & IP. A slightly different view of the role of copyright in our society than you usually see here...
However, while Felten's generational distinction is an important one, I'm not sure his theory fully explains what is going on. The main problem I see is that Eric Boorstin's thesis (Music Sales in the Age of File Sharing), which found that internet access correlates with increased music purchases for older people but decreased music purchases by younger people, isn't really about file sharing per se. The disconnect here is that there is no data for the correlation between filesharing and internet access.
I want to clarify that my analysis had very little to do with bloggers who copy headlines. Frankly, I'm one of the few bloggers who almost always uses the titles of stories and posts when I link to them. Look at the above paragraph, through my archive here, Ernest Miller at Copyfight, or my personal blog The Importance Of .... To the extent that I implied bloggers would not get a different analysis, "perhaps," I was expressing my cynicism about the courts and copyright.
As I note in comments to Wendy's post, bloggers are almost certainly situated differently than the case that was apparently decided in Japan. A fair use analysis of a blogger copying newspaper headlines would almost certainly be found to be a fair use. Without going into all possible details, for example,
1) What is the character of the use?
Goes for the defense. Blogging is almost always an example of a core fair use, such as criticism, comment, news reporting, or teaching, and is frequently part of scholarship and research. For most bloggers, the use is also non-commercial.
2) What is the nature of the work?
Goes for the defense. First, there is a question as to what the work is. Generally, bloggers are commenting on the article of which the headline is a title, not simply the headline itself (though sometimes that happens too - see, Wonkette Gay Marriage: Way to Drive the Point Home). This is unlike the case in Japan in which one could argue that it was the headlines themselves which were being used as the content. In the case of the headline as title, the copyright is virtually nonexistent.
3) How much of the work is used?
Goes for the defense. Again, generally the work will be the article, not the headline. The headline is a very small part of the article. Unlike the case in Japan where the headlines were being used as content and the entire headline (numerous headlines) were being copied.
4) What will be the effect of the use upon the potential market for or value of the copyrighted work?
Goes for the defense. Generally, the market effect of commentary and criticism is not really relevant.
Also, as Wendy points out, if a blogger is posting an RSS feed of headlines on their webpage, the fact of the RSS feed indicates an implied license to use them. I'm working on a longer posting about RSS and copyright, but bloggers shouldn't feel chilled to copy headlines for their blog. On the other hand, I still wouldn't feel confident advising a commercial portal to feel entirely free of liability in stripping headlines from a newspaper that told them to knock it off.
Ernie does a fair use analysis of the copying of headlines (below) -- an issue of more than passing interest to bloggers and blog search tools that routinely copy headlines or extract them from RSS feeds (as the Trademark Blog picks up). Defenses of implied license for some uses aside, I think the headline republishers have a stronger case than Ernie credits, because copyright does not protect titles, short words, and phrases (see Copyright Office Circular 34). Thanks to that exclusion, librarians don't have to rely on fair use to list books in card catalogues or their online equivalents, and others than copyright holders can prepare indexes directing readers where to find more information. If the subject matter is unprotectable or only slightly protected in the first place, or if the use is "transformative" -- indexing rather than publishing articles, the "effect on the market" is less important.
