copyright

What Google’s book settlement means

art, business, language & literature, law, politics, tech in changing society / /
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From Robert Darnton’s “Google & the Future of Books” (The New York Review of Books: 12 February 2009):

As the Enlightenment faded in the early nineteenth century, professionalization set in. You can follow the process by comparing the Encyclopédie of Diderot, which organized knowledge into an organic whole dominated by the faculty of reason, with its successor from the end of the eighteenth century, the Encyclopédie méthodique, which divided knowledge into fields that we can recognize today: chemistry, physics, history, mathematics, and the rest. In the nineteenth century, those fields turned into professions, certified by Ph.D.s and guarded by professional associations. They metamorphosed into departments of universities, and by the twentieth century they had left their mark on campuses…

Along the way, professional journals sprouted throughout the fields, subfields, and sub-subfields. The learned societies produced them, and the libraries bought them. This system worked well for about a hundred years. Then commercial publishers discovered that they could make a fortune by selling subscriptions to the journals. Once a university library subscribed, the students and professors came to expect an uninterrupted flow of issues. The price could be ratcheted up without causing cancellations, because the libraries paid for the subscriptions and the professors did not. Best of all, the professors provided free or nearly free labor. They wrote the articles, refereed submissions, and served on editorial boards, partly to spread knowledge in the Enlightenment fashion, but mainly to advance their own careers.

The result stands out on the acquisitions budget of every research library: the Journal of Comparative Neurology now costs $25,910 for a year’s subscription; Tetrahedron costs $17,969 (or $39,739, if bundled with related publications as a Tetrahedron package); the average price of a chemistry journal is $3,490; and the ripple effects have damaged intellectual life throughout the world of learning. Owing to the skyrocketing cost of serials, libraries that used to spend 50 percent of their acquisitions budget on monographs now spend 25 percent or less. University presses, which depend on sales to libraries, cannot cover their costs by publishing monographs. And young scholars who depend on publishing to advance their careers are now in danger of perishing.

…

The eighteenth-century Republic of Letters had been transformed into a professional Republic of Learning, and it is now open to amateurs—amateurs in the best sense of the word, lovers of learning among the general citizenry. Openness is operating everywhere, thanks to “open access” repositories of digitized articles available free of charge, the Open Content Alliance, the Open Knowledge Commons, OpenCourseWare, the Internet Archive, and openly amateur enterprises like Wikipedia. The democratization of knowledge now seems to be at our fingertips. We can make the Enlightenment ideal come to life in reality.

…

What provoked these jeremianic- utopian reflections? Google. Four years ago, Google began digitizing books from research libraries, providing full-text searching and making books in the public domain available on the Internet at no cost to the viewer. For example, it is now possible for anyone, anywhere to view and download a digital copy of the 1871 first edition of Middlemarch that is in the collection of the Bodleian Library at Oxford. Everyone profited, including Google, which collected revenue from some discreet advertising attached to the service, Google Book Search. Google also digitized an ever-increasing number of library books that were protected by copyright in order to provide search services that displayed small snippets of the text. In September and October 2005, a group of authors and publishers brought a class action suit against Google, alleging violation of copyright. Last October 28, after lengthy negotiations, the opposing parties announced agreement on a settlement, which is subject to approval by the US District Court for the Southern District of New York.[2]

The settlement creates an enterprise known as the Book Rights Registry to represent the interests of the copyright holders. Google will sell access to a gigantic data bank composed primarily of copyrighted, out-of-print books digitized from the research libraries. Colleges, universities, and other organizations will be able to subscribe by paying for an “institutional license” providing access to the data bank. A “public access license” will make this material available to public libraries, where Google will provide free viewing of the digitized books on one computer terminal. And individuals also will be able to access and print out digitized versions of the books by purchasing a “consumer license” from Google, which will cooperate with the registry for the distribution of all the revenue to copyright holders. Google will retain 37 percent, and the registry will distribute 63 percent among the rightsholders.

Meanwhile, Google will continue to make books in the public domain available for users to read, download, and print, free of charge. Of the seven million books that Google reportedly had digitized by November 2008, one million are works in the public domain; one million are in copyright and in print; and five million are in copyright but out of print. It is this last category that will furnish the bulk of the books to be made available through the institutional license.

Many of the in-copyright and in-print books will not be available in the data bank unless the copyright owners opt to include them. They will continue to be sold in the normal fashion as printed books and also could be marketed to individual customers as digitized copies, accessible through the consumer license for downloading and reading, perhaps eventually on e-book readers such as Amazon’s Kindle.

After reading the settlement and letting its terms sink in—no easy task, as it runs to 134 pages and 15 appendices of legalese—one is likely to be dumbfounded: here is a proposal that could result in the world’s largest library. It would, to be sure, be a digital library, but it could dwarf the Library of Congress and all the national libraries of Europe. Moreover, in pursuing the terms of the settlement with the authors and publishers, Google could also become the world’s largest book business—not a chain of stores but an electronic supply service that could out-Amazon Amazon.

An enterprise on such a scale is bound to elicit reactions of the two kinds that I have been discussing: on the one hand, utopian enthusiasm; on the other, jeremiads about the danger of concentrating power to control access to information.

…

Google is not a guild, and it did not set out to create a monopoly. On the contrary, it has pursued a laudable goal: promoting access to information. But the class action character of the settlement makes Google invulnerable to competition. Most book authors and publishers who own US copyrights are automatically covered by the settlement. They can opt out of it; but whatever they do, no new digitizing enterprise can get off the ground without winning their assent one by one, a practical impossibility, or without becoming mired down in another class action suit. If approved by the court—a process that could take as much as two years—the settlement will give Google control over the digitizing of virtually all books covered by copyright in the United States.

…

Google alone has the wealth to digitize on a massive scale. And having settled with the authors and publishers, it can exploit its financial power from within a protective legal barrier; for the class action suit covers the entire class of authors and publishers. No new entrepreneurs will be able to digitize books within that fenced-off territory, even if they could afford it, because they would have to fight the copyright battles all over again. If the settlement is upheld by the court, only Google will be protected from copyright liability.

Google’s record suggests that it will not abuse its double-barreled fiscal-legal power. But what will happen if its current leaders sell the company or retire? The public will discover the answer from the prices that the future Google charges, especially the price of the institutional subscription licenses. The settlement leaves Google free to negotiate deals with each of its clients, although it announces two guiding principles: “(1) the realization of revenue at market rates for each Book and license on behalf of the Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education.”

What will happen if Google favors profitability over access? Nothing, if I read the terms of the settlement correctly. Only the registry, acting for the copyright holders, has the power to force a change in the subscription prices charged by Google, and there is no reason to expect the registry to object if the prices are too high. Google may choose to be generous in it pricing, and I have reason to hope it may do so; but it could also employ a strategy comparable to the one that proved to be so effective in pushing up the price of scholarly journals: first, entice subscribers with low initial rates, and then, once they are hooked, ratchet up the rates as high as the traffic will bear.

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New Zealand’s new copyright law

business, law, politics, tech in changing society, technology / /

From Mark Gibbs’ “New Zealand gets insane copyright law” (Network World: 20 February 2009):

A law was recently passed in New Zealand that has created what many consider to be the world’s harshest copyright enforcement law. This insanity, found in Sections 92A and C of New Zealand’s Copyright Amendment Act 2008 establishes – and I am not making this up – a guilt upon accusation principle!

Yep, you read that right. This means that anyone accused of “copyright infringement” will get his Internet connection cut off; and treated as guilty until proven innocent.

And if that weren’t enough, this crazy legislation defines anyone providing Internet access as an ISP and makes them responsible for monitoring and cutting off Internet access for anyone who uses their services and is accused of copyright violations. Thus libraries, schools, coffee shops, cafes – anyone offering any kind of Internet access – will be considered ISPs and become responsible and potentially liable.

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CopyBot copies all sorts of items in Second Life

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From Glyn Moody’s “The duplicitous inhabitants of Second Life” (The Guardian: 23 November 2006):

What would happen to business and society if you could easily make a copy of anything – not just MP3s and DVDs, but clothes, chairs and even houses? That may not be a problem most of us will have to confront for a while yet, but the 1.5m residents of the virtual world Second Life are already grappling with this issue.

A new program called CopyBot allows Second Life users to duplicate repeatedly certain elements of any object in the vicinity – and sometimes all of it. That’s awkward in a world where such virtual goods can be sold for real money. When CopyBot first appeared, some retailers in Second Life shut up shop, convinced that their virtual goods were about to be endlessly copied and rendered worthless. Others protested, and suggested that in the absence of scarcity, Second Life’s economy would collapse.

…

Instead of sending a flow of pictures of the virtual world to the user as a series of pixels – something that would be impractical to calculate – the information would be transmitted as a list of basic shapes that were re-created on the user’s PC. For example, a virtual house might be a cuboid with rectangles representing windows and doors, cylinders for the chimney stacks etc.

This meant the local world could be sent in great detail very compactly, but also that the software on the user’s machine had all the information for making a copy of any nearby object. It’s like the web: in order to display a page, the browser receives not an image of the page, but all the underlying HTML code to generate that page, which also means that the HTML of any web page can be copied perfectly. Thus CopyBot – written by a group called libsecondlife as part of an open-source project to create Second Life applications – or something like it was bound to appear one day.

…

Liberating the economy has led to a boom in creativity, just as Rosedale hoped. It is in constant expansion as people buy virtual land, and every day more than $500,000 (£263,000) is spent buying virtual objects. But the downside is that unwanted copying is potentially a threat to the substantial businesses selling virtual goods that have been built up, and a concern for the real-life companies such as IBM, Adidas and Nissan which are beginning to enter Second Life.

Just as it is probably not feasible to stop “grey goo” – the Second Life equivalent of spam, which takes the form of self- replicating objects malicious “griefers” use to gum up the main servers – so it is probably technically impossible to stop copying. Fortunately, not all aspects of an object can be duplicated. To create complex items – such as a virtual car that can be driven – you use a special programming language to code their realistic behaviour. CopyBot cannot duplicate these programs because they are never passed to the user, but run on the Linden Lab’s computers.

As for the elements that you can copy, such as shape and texture, Rosedale explains: “What we’re going to do is add a lot of attribution. You’ll be able to easily see when an object or texture was first created,” – and hence if something is a later copy.

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Richard Stallman on why “intellectual property” is a misnomer

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From Richard Stallman’s “Transcript of Richard Stallman at the 4th international GPLv3 conference; 23rd August 2006” (FSF Europe: 23 August 2006):

Anyway, the term “intellectual property” is a propaganda term which should never be used, because merely using it, no matter what you say about it, presumes it makes sense. It doesn’t really make sense, because it lumps together several different laws that are more different than similar.

For instance, copyright law and patent law have a little bit in common, but all the details are different and their social effects are different. To try to treat them as they were one thing, is already an error.

To even talk about anything that includes copyright and patent law, means you’re already mistaken. That term systematically leads people into mistakes. But, copyright law and patent law are not the only ones it includes. It also includes trademark law, for instance, which has nothing in common with copyright or patent law. So anyone talking about “quote intellectual property unquote”, is always talking about all of those and many others as well and making nonsensical statements.

So, when you say that you especially object to it when it’s used for Free Software, you’re suggesting it might be a little more legitimate when talking about proprietary software. Yes, software can be copyrighted. And yes, in some countries techniques can be patented. And certainly there can be trademark names for programs, which I think is fine. There’s no problem there. But these are three completely different things, and any attempt to mix them up – any practice which encourages people to lump them together is a terribly harmful practice. We have to totally reject the term “quote intellectual property unquote”. I will not let any excuse convince me to accept the meaningfulness of that term.

When people say “well, what would you call it?”, the answer is that I deny there is an “it” there. There are three, and many more, laws there, and I talk about these laws by their names, and I don’t mix them up.

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George Clinton and the sample troll

art, business, history, law, tech in changing society, technology / /

From Tim Wu’s “On Copyright’s Authorship Policy” (Internet Archive: 2007):

On May 4, 2001, a one-man corporation named Bridgeport Music, Inc. launched over 500 counts of copyright infringement against more than 800 different artists and labels.1 Bridgeport Music has no employees, and other than copyrights, no reported assets.2 Technically, Bridgeport is a “catalogue company.” Others call it a “sample troll.”

Bridgeport is the owner of valuable copyrights, including many of funk singer George Clinton’s most famous songs – songs which are sampled in a good amount of rap music.3 Bridgeport located every sample of Clinton’s and other copyrights it owned, and sued based on the legal position that any sampling of a sound recording, no matter how minimal or unnoticeable, is still an infringement.

During the course of Bridgeport’s campaign, it has won two important victories. First, the Sixth Circuit, the appellate court for Nashville adopted Bridgeport’s theory of infringement. In Bridgeport Music, Inc. v. Dimension Films,4 the defendants sampled a single chord from the George Clinton tune “Get Off Your Ass and Jam,” changed the pitch, and looped the sound. Despite the plausible defense that one note is but a de minimus use of the work, the Sixth Circuit ruled for Bridgeport and created a stark rule: any sampling, no matter how minimal or undetectable, is a copyright infringement. Said the court in Bridgeport, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”5 In 2006 Bridgeport convinced a district court to enjoin the sales of the bestselling Notorious B.I.G. album, Ready to Die, for “illegal sampling.”6 A jury then awarded Bridgeport more than four million dollars in damages.7

The Bridgeport cases have been heavily criticized, and taken as a prime example of copyright’s excesses.8 Yet the deeper problem with the Bridgeport litigation is not necessarily a problem of too much copyright. It can be equally concluded that the ownership of the relevant rights is the root of the problem. George Clinton, the actual composer and recording artist, takes a much different approach to sampling. “When hip-hop came out,” said Clinton in an interview with journalist Rick Karr, “I was glad to hear it, especially when it was our songs – it was a way to get back on the radio.”9 Clinton accepts sampling of his work, and has released a three CD collection of his sounds for just that purpose.10 The problem is that he doesn’t own many of his most important copyrights. Instead, it is Bridgeport, the one-man company, that owns the rights to Clinton’s work. In the 1970s Bridgeport, through its owner Armen Boladian, managed to seize most of George Clinton’s copyrights and many other valuable rights. In at least a few cases, Boladian assigned the copyrights to Bridgeport by writing a contract and then faking Clinton’s signature.11 As Clinton puts it “he just stole ‘em.”12 With the copyrights to Clinton’s songs in the hands of Bridgeport – an entity with no vested interest in the works beyond their sheer economic value – the targeting of sampling is not surprising.

1 Tim Wu, Jay-Z Versus the Sample Troll, Slate Magazine, Nov. 16, 2006, http://www.slate.com/id/2153961/.

2 See Bridgeport Music, Inc.’s corporate entity details, Michigan Department of Labor & Economic Growth, available at http://www.dleg.state.mi.us/bcs_corp/dt_corp.asp?id_nbr=190824&name_entity=BRIDGEPORT%20MUSIC,%20INC (last visited Mar. 18, 2007).

3 See Wu, supra note 1.

4 410 F.3d 792 (6th Cir. 2005).

5 Id. at 801.

6 Jeff Leeds, Judge Freezes Notorious B.I.G. Album, N.Y. Times, Mar. 21, 2006, at E2.

7 Id.

8 See, e.g., Matthew R. Broodin, Comment, Bridgeport Music, Inc. v. Dimension Films: The Death of the Substantial Similarity Test in Digital Samping Copyright Infringemnt Claims—The Sixth Circuit’s Flawed Attempt at a Bright Line Rule, 6 Minn. J. L. Sci. & Tech. 825 (2005); Jeffrey F. Kersting, Comment, Singing a Different Tune: Was the Sixth Circuit Justified in Changing the Protection of Sound Recordings in Bridgeport Music, Inc. v. Dimension Films?, 74 U. Cin. L. Rev. 663 (2005) (answering the title question in the negative); John Schietinger, Note, Bridgeport Music, Inc. v. Dimension Films: How the Sixth Circuit Missed a Beat on Digital Music Sampling, 55 DePaul L. Rev. 209 (2005).

9 Interview by Rick Karr with George Clinton, at the 5th Annual Future of Music Policy Summit, Wash. D.C. (Sept. 12, 2005), video clip available at http://www.tvworldwide.com/showclip.cfm?ID=6128&clip=2 [hereinafter Clinton Interview].

10 George Clinton, Sample Some of Disc, Sample Some of D.A.T., Vols. 1-3 (1993-94).

11 Sound Generator, George Clinton awarded Funkadelic master recordings (Jun. 6, 2005), http://www.soundgenerator.com/news/showarticle.cfm?articleid=5555.

12 Clinton Interview, supra note 9.

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George Clinton and the sample troll

1 Comment / art, business, history, law, tech in changing society / /

From Tim Wu’s “On Copyright’s Authorship Policy” (Internet Archive: 2007):

On May 4, 2001, a one-man corporation named Bridgeport Music, Inc. launched over 500 counts of copyright infringement against more than 800 different artists and labels.1 Bridgeport Music has no employees, and other than copyrights, no reported assets.2 Technically, Bridgeport is a “catalogue company.” Others call it a “sample troll.”

Bridgeport is the owner of valuable copyrights, including many of funk singer George Clinton’s most famous songs – songs which are sampled in a good amount of rap music.3 Bridgeport located every sample of Clinton’s and other copyrights it owned, and sued based on the legal position that any sampling of a sound recording, no matter how minimal or unnoticeable, is still an infringement.

During the course of Bridgeport’s campaign, it has won two important victories. First, the Sixth Circuit, the appellate court for Nashville adopted Bridgeport’s theory of infringement. In Bridgeport Music, Inc. v. Dimension Films,4 the defendants sampled a single chord from the George Clinton tune “Get Off Your Ass and Jam,” changed the pitch, and looped the sound. Despite the plausible defense that one note is but a de minimus use of the work, the Sixth Circuit ruled for Bridgeport and created a stark rule: any sampling, no matter how minimal or undetectable, is a copyright infringement. Said the court in Bridgeport, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”5 In 2006 Bridgeport convinced a district court to enjoin the sales of the bestselling Notorious B.I.G. album, Ready to Die, for “illegal sampling.”6 A jury then awarded Bridgeport more than four million dollars in damages.7

The Bridgeport cases have been heavily criticized, and taken as a prime example of copyright’s excesses.8 Yet the deeper problem with the Bridgeport litigation is not necessarily a problem of too much copyright. It can be equally concluded that the ownership of the relevant rights is the root of the problem. George Clinton, the actual composer and recording artist, takes a much different approach to sampling. “When hip-hop came out,” said Clinton in an interview with journalist Rick Karr, “I was glad to hear it, especially when it was our songs – it was a way to get back on the radio.”9 Clinton accepts sampling of his work, and has released a three CD collection of his sounds for just that purpose.10 The problem is that he doesn’t own many of his most important copyrights. Instead, it is Bridgeport, the one-man company, that owns the rights to Clinton’s work. In the 1970s Bridgeport, through its owner Armen Boladian, managed to seize most of George Clinton’s copyrights and many other valuable rights. In at least a few cases, Boladian assigned the copyrights to Bridgeport by writing a contract and then faking Clinton’s signature.11 As Clinton puts it “he just stole ‘em.”12 With the copyrights to Clinton’s songs in the hands of Bridgeport – an entity with no vested interest in the works beyond their sheer economic value – the targeting of sampling is not surprising.

1 Tim Wu, Jay-Z Versus the Sample Troll, Slate Magazine, Nov. 16, 2006, http://www.slate.com/id/2153961/.

2 See Bridgeport Music, Inc.’s corporate entity details, Michigan Department of Labor & Economic Growth, available at http://www.dleg.state.mi.us/bcs_corp/dt_corp.asp?id_nbr=190824&name_entity=BRI DGEPORT%20MUSIC,%20INC (last visited Mar. 18, 2007).

3 See Wu, supra note 1.

4 410 F.3d 792 (6th Cir. 2005).

5 Id. at 801.

6 Jeff Leeds, Judge Freezes Notorious B.I.G. Album, N.Y. Times, Mar. 21, 2006, at E2.

7 Id.

8 See, e.g., Matthew R. Broodin, Comment, Bridgeport Music, Inc. v. Dimension Films: The Death of the Substantial Similarity Test in Digital Samping Copyright Infringemnt Claims—The Sixth Circuit’s Flawed Attempt at a Bright Line Rule, 6 Minn. J. L. Sci. & Tech. 825 (2005); Jeffrey F. Kersting, Comment, Singing a Different Tune: Was the Sixth Circuit Justified in Changing the Protection of Sound Recordings in Bridgeport Music, Inc. v. Dimension Films?, 74 U. Cin. L. Rev. 663 (2005) (answering the title question in the negative); John Schietinger, Note, Bridgeport Music, Inc. v. Dimension Films: How the Sixth Circuit Missed a Beat on Digital Music Sampling, 55 DePaul L. Rev. 209 (2005).

9 Interview by Rick Karr with George Clinton, at the 5th Annual Future of Music Policy Summit, Wash. D.C. (Sept. 12, 2005), video clip available at http://www.tvworldwide.com/showclip.cfm?ID=6128&clip=2 [hereinafter Clinton Interview].

10 George Clinton, Sample Some of Disc, Sample Some of D.A.T., Vols. 1-3 (1993-94).

11 Sound Generator, George Clinton awarded Funkadelic master recordings (Jun. 6, 2005), http://www.soundgenerator.com/news/showarticle.cfm?articleid=5555.

12 Clinton Interview, supra note 9.

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6 reasons why “content” has been devalued

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From Jonathan Handel’s “Is Content Worthless?” (The Huffington Post: 11 April 2008):

Everyone focuses on piracy, but there are actually six related reasons for the devaluation of content. The first is supply and demand. Demand — the number of consumers and their available leisure time – is relatively constant, but supply — online content — has grown enormously in the last decade. Some of this is professional content set free from boundaries of time and space, now available worldwide, anytime, and usually at no cost (whether legally or not). Even more is user generated content (UGC) — websites, blogs, YouTube videos — created by non-professionals who don’t care whether they get paid, and who themselves pay little or nothing to create and distribute it.

The second is the loss of physical form. It just seems natural to value a physical thing more highly than something intangible. Physical objects have been with us since the beginning of time; distributable intangible content has not. Perhaps for that reason, we tend to focus on per-unit costs (zero for an intangible such as a movie download), while forgetting about fixed costs (such as the cost of making the movie in the first place). Also, and critically, if you steal something tangible, you deny it to the owner; a purloined DVD is no longer available to the merchant, for instance. But if you misappropriate an intangible, it’s still there for others to use. …

The third reason is that acquiring content is increasingly frictionless. It’s often easier, particularly for young people, to access content on the Internet than through traditional means. …

Fourth is that most new media business models are ad-supported rather than pay per view or subscription. If there’s no cost to the user, why should consumers see the content as valuable, and if some content is free, why not all of it? …

Fifth is market forces in the technology industry. Computers, web services, and consumer electronic devices are more valuable when more content is available. In turn, these products make content more usable by providing new distribution channels. Traditional media companies are slow to adopt these new technologies, for fear of cannibalizing revenue from existing channels and offending powerful distribution partners. In contrast, non-professionals, long denied access to distribution, rush to use the new technologies, as do pirates of professional content. As a result, technological innovation reduces the market share of paid professional content.

Finally, there’s culture. A generation of users has grown up indifferent or hostile to copyright, particularly in music, movies and software.

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DRM converts copyrights into trade secrets

business, law, tech in changing society, technology / /

From Mark Sableman’s “Copyright reformers pose tough questions” (St. Louis Journalism Review: June 2005):

It goes by the name “digital rights management” – the effort, already very successful, to give content owners the right to lock down their works technologically. It is what Washington University law professor Charles McManis has characterized as attaching absolute “trade secret” property-type rights to the content formerly subject to the copyright balance between private rights and public use.

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Macaulay in 1841: copyright a tax on readers

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From Thomas Babington Macaulay’s “A Speech Delivered In The House Of Commons On The 5th Of February 1841” (Prime Palaver #4: 1 September 2001):

The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty. My complaint is, that my honourable and learned friend doubles, triples, quadruples, the tax, and makes scarcely any perceptible addition to the bounty.

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Macaulay in 1841 on the problems on the copyright monopoly

art, history, law, on writing, politics, tech in changing society / /

From Thomas Babington Macaulay’s “A Speech Delivered In The House Of Commons On The 5th Of February 1841” (Prime Palaver #4: 1 September 2001):

The question of copyright, Sir, like most questions of civil prudence, is neither black nor white, but grey. The system of copyright has great advantages and great disadvantages; and it is our business to ascertain what these are, and then to make an arrangement under which the advantages may be as far as possible secured, and the disadvantages as far as possible excluded. …

We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. …

I believe, Sir, that I may with safety take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. … Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good. …

For consider this; the evil effects of the monopoly are proportioned to the length of its duration. But the good effects for the sake of which we bear with the evil effects are by no means proportioned to the length of its duration. A monopoly of sixty years produces twice as much evil as a monopoly of thirty years, and thrice as much evil as a monopoly of twenty years. But it is by no means the fact that a posthumous monopoly of sixty years gives to an author thrice as much pleasure and thrice as strong a motive as a posthumous monopoly of twenty years. On the contrary, the difference is so small as to be hardly perceptible. We all know how faintly we are affected by the prospect of very distant advantages, even when they are advantages which we may reasonably hope that we shall ourselves enjoy. But an advantage that is to be enjoyed more than half a century after we are dead, by somebody, we know not by whom, perhaps by somebody unborn, by somebody utterly unconnected with us, is really no motive at all to action. …

Dr Johnson died fifty-six years ago. If the law were what my honourable and learned friend wishes to make it, somebody would now have the monopoly of Dr Johnson’s works. Who that somebody would be it is impossible to say; but we may venture to guess. I guess, then, that it would have been some bookseller, who was the assign of another bookseller, who was the grandson of a third bookseller, who had bought the copyright from Black Frank, the doctor’s servant and residuary legatee, in 1785 or 1786. Now, would the knowledge that this copyright would exist in 1841 have been a source of gratification to Johnson? Would it have stimulated his exertions? Would it have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen? Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly believe not. I firmly believe that a hundred years ago, when he was writing our debates for the Gentleman’s Magazine, he would very much rather have had twopence to buy a plate of shin of beef at a cook’s shop underground. Considered as a reward to him, the difference between a twenty years’ and sixty years’ term of posthumous copyright would have been nothing or next to nothing. But is the difference nothing to us? I can buy Rasselas for sixpence; I might have had to give five shillings for it. I can buy the Dictionary, the entire genuine Dictionary, for two guineas, perhaps for less; I might have had to give five or six guineas for it. Do I grudge this to a man like Dr Johnson? Not at all. Show me that the prospect of this boon roused him to any vigorous effort, or sustained his spirits under depressing circumstances, and I am quite willing to pay the price of such an object, heavy as that price is. But what I do complain of is that my circumstances are to be worse, and Johnson’s none the better; that I am to give five pounds for what to him was not worth a farthing.

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Ridiculous trademark and fair use stories

business, law / /

From Mark Sableman’s “Copyright reformers pose tough questions” (St. Louis Journalism Review: June 2005):

Kembrew McLeod of the University of Iowa explained how as a graduate student he applied for a federal trademark registration on the phrase “freedom of expression” as a joke, not really expecting that even a green-eye-shaded trademark examiner would approve it. The result? He got the trademark registration – and his certificate appears on the frontispiece of his current book about the abuse of intellectual property – a book titled, “Freedom of Expression™.” …

Victor Navasky, editor of The Nation magazine, told the story of his copyright case, which became a U.S. Supreme Court landmark – a story that from his perspective involved his use of only a tiny newsworthy portion of Gerald Ford’s memoirs, a book that he considered “designed to put you to sleep.” The resulting whirlwind lawsuit, however, put no one to sleep, and led to a 1985 decision that made copyright “fair use” determinations more difficult than ever. …

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A short explanation of moral rights in IP

business, law, politics, tech in changing society / /

From Betsy Rosenblatt’s “Moral Rights Basics“:

The term “moral rights” is a translation of the French term “droit moral,” and refers … to the ability of authors to control the eventual fate of their works. An author is said to have the “moral right” to control her work. … Moral rights protect the personal and reputational, rather than purely monetary, value of a work to its creator.

The scope of a creator’s moral rights is unclear, and differs with cultural conceptions of authorship and ownership, but may include the creator’s right to receive or decline credit for her work, to prevent her work from being altered without her permission, to control who owns the work, to dictate whether and in what way the work is displayed, and/or to receive resale royalties. Under American Law, moral rights receive protection through judicial interpretation of several copyright, trademark, privacy, and defamation statues, and through 17 U.S.C. §106A, known as the Visual Artists Rights Act of 1990 (VARA). VARA applies exclusively to visual art. In Europe and elsewhere, moral rights are more broadly protected by ordinary copyright law.

In the United States, the term “moral rights” typically refers to the right of an author to prevent revision, alteration, or distortion of her work, regardless of who owns the work. Moral rights as outlined in VARA also allow an author of a visual work to avoid being associated with works that are not entirely her own, and to prevent the defacement of her works. …

Under VARA, moral rights automatically vest in the author of a “work of visual art.” For the purposes of VARA, visual art includes paintings, drawings, prints, sculptures, and photographs, existing in a single copy or a limited edition of 200 signed and numbered copies or fewer. In order to be protected, a photograph must have been taken for exhibition purposes only. VARA only protects works of “recognized stature;” posters, maps, globes, motion pictures, electronic publications, and applied art are among the categories of visual works explicitly excluded from VARA protection. …

Moral rights are not transferrable, and end only with the life of the author. Even if the author has conveyed away a work or her copyright in it, she retains the moral rghts to the work under VARA. Authors may, however, waive their moral rights if do so in writing.

What constitutes infringement of moral rights?

VARA grants two rights to authors of visual works: the right of attribution, and the right of integrity. The right of attribution allows an author to prevent misattribution of a work, and to require that the authorship of the work not be disclosed (i.e. remain anonymous). The right of integrity bars intentional distortion, mutilation, or other modification of a work if that distortion is likely to harm the author’s reputation, and prevents the destruction of any work of recognized stature.

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From P2P to social sharing

business, law, social software, tech in changing society, technology / /

From Clay Shirky’s “File-sharing Goes Social“:

The RIAA has taken us on a tour of networking strategies in the last few years, by constantly changing the environment file-sharing systems operate in. In hostile environments, organisms often adapt to become less energetic but harder to kill, and so it is now. With the RIAA’s waves of legal attacks driving experimentation with decentralized file-sharing tools, file-sharing networks have progressively traded efficiency for resistance to legal attack. …

There are several activities that are both illegal and popular, and these suffer from what economists call high transaction costs. Buying marijuana involves considerably more work than buying roses, in part because every transaction involves risk for both parties, and in part because neither party can rely on the courts for redress from unfair transactions. As a result, the market for marijuana today (or NYC tattoo artists in the 1980s, or gin in the 1920s, etc) involves trusted intermediaries who broker introductions.

These intermediaries act as a kind of social Visa system; in the same way a credit card issuer has a relationship with both buyer and seller, and an incentive to see that transactions go well, an introducer in an illegal transaction has an incentive to make sure that neither side defects from the transaction. And all parties, of course, have an incentive to avoid detection. …

There are many ways to move to such membrane-bounded systems, of course, including retrofitting existing networks to allow sub-groups with controlled membership (possibly using email white-list or IM buddy-list tools); adopting any of the current peer-to-peer tools designed for secure collaboration (e.g. Groove, Shinkuro, WASTE etc); or even going to physical distribution. As Andrew Odlyzko has pointed out, sending disks through the mail can move enough bits in a 24 hour period to qualify as broadband, and there are now file-sharing networks whose members simply snail mail one another mountable drives of music. …

The disadvantage of social sharing is simple — limited membership means fewer files. The advantage is equally simple — a socially bounded system is more effective than nothing, and safer than Kazaa. …

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Good description of Fair Use & 1st Sale

business, law, tech in changing society / /

From Scott Kleper’s “An Introduction to Copyfighting“:

I think a lot of people incorrectly assume that Copyfighters are people who believe that copyright should be abolished and that everything should be free. Copyfighters aren’t saying that all media should be freely distributed. We are saying that as consumers of media (film, television, software, literature, etc.) we have certain rights that we would like to protect. One of these rights is Fair Use. Fair Use means that you can reuse copyrighted work without permission as long as you are commenting on it, or copying/parodying the original. Fair Use is what allows you to quote song lyrics when writing a review of a new CD. Another right is First Sale. First Sale means that when you buy something, you own it and are thus entitled to sell it to someone else. First Sale is what allows you to buy a book, read it, then sell it on half.com for someone else to enjoy.

Most of all, we simply want the right to use the products we buy in the way that we see fit. We don’t want to be sued by a manufacturer for opening up a product to see how it works or sued by a media company for moving a file from one device to another. We believe that when we buy a CD, we should be able to convert it to another format to play on another device. We shouldn’t have to pay again to turn it into a ring tone. …

Songs bought on the Apple iTunes music store can be played only on a fixed number of devices that you have unlocked with your iTunes ID. Sounds reasonable, but after a few system reinstalls, maybe a replaced motherboard, a change of jobs, etc., all of a sudden, you no longer have access to any of your “authorized computers” and you have to get Apple to remove them all so you can start again. You can’t play iTunes purchased music on your non-Apple portable music player and you can’t play Windows DRM files on your iPod. Consumers are supposed to understand and care about this?

The worst part is that these schemes end up only hurting the people who are trying to be good. If you use a commercial downloading service, like iTunes Music Store, it means that you have rejected the dubious legality and poor user experience of the “illegal” services. You have paid your 99 cents and been handed something that is less valuable than what you could have gotten for free. You get a file with complex and arbitrary restrictions in a proprietary format. Meanwhile, the people who decided to keep on infringing aren’t suffering — they get unrestricted files.

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Developing nations stand up to US/UN bullying on copyright

law, politics, tech in changing society / /

From “Statement by India at the Inter-Sessional Intergovernmental Meeting on a Development Agenda For WIPO, April 11-13, 2005” (emphasis added):

“Development”, in WIPO’s terminology means increasing a developing country’s capacity to provide protection to the owners of intellectual property rights. This is quite a the opposite of what developing countries understand when they refer to the ‘development dimension’. The document presented by the Group of Friends of Development corrects this misconception – that development dimension means technical assistance.

The real “development” imperative is ensuring that the interest of Intellectual Property owners is not secured at the expense of the users of IP, of consumers at large, and of public policy in general. …

The legal monopoly granted to IP owners is an exceptional departure from the general principle of competitive markets as the best guarantee for securing the interest of society. The rationale for the exception is not that extraction of monopoly profits by the innovator is, of and in itself, good for society and so needs to be promoted. Rather, that properly controlled, such a monopoly, by providing an incentive for innovation, might produce sufficient benefits for society to compensate for the immediate loss to consumers as a result of the existence of a monopoly market instead of a competitive market. Monopoly rights, then, granted to IP holders is a special incentive that needs to be carefully calibrated by each country, in the light of its own circumstances, taking into account the overall costs and benefits of such protection. …

The current emphasis of Technical Assistance on implementation and enforcement issues is misplaced. IP Law enforcement is embedded in the framework of all law enforcement in the individual countries. It is unrealistic, and even undesirable to expect that the enforcement of IP laws will be privileged over the enforcement of other laws in the country. Society faces a considerable challenge to effectively protect, and resolve disputes over, physical property. To expect that the police, the lawyers and the courts should dedicate a sizable part of society’s enforcement resources for protecting intangible intellectual property, is unrealistic. …

In conclusion, it is important that developed countries and WIPO acknowledge that IP protection is an important policy instrument for developing countries, one that needs to be used carefully. While the claimed benefits of strong IP protection for developing countries are a matter of debate – and nearly always in the distant future – such protection invariably entails substatial real an immediate costs for these countries. In formulating its IP policy, therefore, each country needs to have sufficient flexibility so that the cost of IP protection does not outweigh the benefits.

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Copyright stupidity: arguments & numbers

business, commonplace book, law, politics, tech in changing society / /

From Financial Times” “James Boyle: Deconstructing stupidity“:

Thomas Macaulay told us copyright law is a tax on readers for the benefit of writers, a tax that shouldn’t last a day longer than necessary. …

Since only about 4 per cent of copyrighted works more than 20 years old are commercially available, this locks up 96 per cent of 20th century culture to benefit 4 per cent. The harm to the public is huge, the benefit to authors, tiny. …

We need to deconstruct the culture of IP stupidity, to understand it so we can change it. But this is a rich and complex stupidity, like a fine Margaux. I can only review a few flavours.

Maximalism: The first thing to realize is that many decisions are driven by honest delusion, not corporate corruption. The delusion is maximalism: the more intellectual property rights we create, the more innovation. This is clearly wrong; rights raise the cost of innovation inputs (lines of code, gene sequences, data.) Do their monopolistic and anti-competitive effects outweigh their incentive effects? That’s the central question, but many of our decision makers seem never to have thought of it.

The point was made by an exchange inside the Committee that shaped Europe’s ill-starred Database Directive. It was observed that the US, with no significant property rights over unoriginal compilations of data, had a much larger database industry than Europe which already had significant “sweat of the brow” protection in some countries. Europe has strong rights, the US weak. The US is winning.

Did this lead the committee to wonder for a moment whether Europe should weaken its rights? No. Their response was that this showed we had to make the European rights much stronger. …

Authorial Romance: Part of the delusion depends on the idea that inventors and artists create from nothing. Who needs a public domain of accessible material if one can create out of thin air? But in most cases this simply isn’t true; artists, scientists and technologists build on the past. …

An Industry Contract: Who are the subjects of IP? They used to be companies. You needed a printing press or a factory to trigger the landmines of IP. The law was set up as a contract between industry groups. This was a cosy arrangement, but it is no longer viable. The citizen-publishers of cyberspace, the makers of free software, the scientists of distributed data-analysis are all now implicated in the IP world. The decision-making structure has yet to adjust. …

Fundamentally, though, the views I have criticised here are not merely stupidity. They constitute an ideology, a worldview, like flat earth-ism. …

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The 1st software patent

business, history, law, tech in changing society, technology / /

From Robert X. Cringely’s “Patently Absurd: Why Simply Making Spam Illegal Won’t Work“:

Software patents have become inordinately important for something that 25 years ago we didn’t even believe could exist. After several software patent cases had gone unsuccessfully as far as the U.S. Supreme Court, the general thinking when I got in this business was that software could not be patented, only copyrighted. Like the words of a book, the individual characters of code could be protected by a copyright, and even the specific commands could be protected, but what couldn’t be protected by a copyright was the literal function performed by the program. There is no way that a copyright could protect the idea of a spreadsheet. Protecting the idea would have required a patent.

Then on May 26, 1981, after seven years of legal struggle, S. Pal Asija, a programmer and patent lawyer, received the first software patent for SwiftAnswer, a data retrieval program that was never heard from again and whose only historical function was to prove that all of the experts were wrong — software could be patented. Asija showed that when the Supreme Court had ruled against previous software patent efforts, it wasn’t saying that software was unpatentable, but that those particular programs weren’t patentable.

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More distribution channels = more viewers

business, tech in changing society, technology / /

From “NBC: iPod Boosts Prime Time“:

NBC’s “The Office” delivered a 5.1-its highest ratings ever-last Thursday among adults 18 to 49, a bump the network credits in large part to the show’s popularity as an iPod download. …

Such a connection between podcast success and broadcast ratings success is particularly significant because the NBC data is among the first available evidence of what network executives have been gambling on when striking their new media deals-that the new video platforms are additive because they provide more entry points into a show for consumers. …

NBC is confident that the iPod exposure contributed to the rise. …

The iTunes offering is bringing new audiences to the show that would not otherwise have watched, said Frederick Huntsberry, president of NBCU Television Distribution. “Consumers have choices, and we are not reaching all consumers with one technology,” he said.

ITunes is one way to bring fresh eyeballs to the network, he said, in particular the younger demo that uses video iPods. …

Yet ABC has also seen a ratings increase for its iTunes shows. To date since their debut on iTunes in October, both “Lost” and “Desperate Housewives” are up versus the same period last year. …

That growth and the knowledge that iTunes distribution possibly grew and certainly did not cannibalize ratings gave the ABC Disney Television Group the confidence to add another round of iTunes programs last week …

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DRM ratchets up, but never quite works

business, security, tech in changing society, technology / /

From Edward Felten’s "DRM and the Regulatory Ratchet":

Regular readers know that one of my running themes is the harm caused when policy makers don’t engage with technical realities. One of the most striking examples of this has to do with DRM (or copy-restriction) technologies. Independent technical experts agree almost universally that DRM is utterly unable to prevent the leakage of copyrighted material onto file sharing networks. And yet many policy-makers act as if DRM is the solution to the file-sharing problem.

The result is a kind of regulatory ratchet effect. When DRM seems not to be working, perhaps it can be rescued by imposing a few regulations on technology (think: DMCA). When somehow, despite the new regulations, DRM still isn’t working, perhaps what is needed is a few more regulations to backstop it further (think: broadcast flag). When even these expanded regulations prove insufficient, the answer is yet another layer of regulations (think: consensus watermark). The level of regulation ratchets up higher and higher – but DRM still doesn’t work.

The advocates of regulation argue at each point that just one more level of regulation will solve the problem. In a rational world, the fact that they were wrong last time would be reason to doubt them this time. But if you simply take on faith that DRM can prevent infringement, the failure of each step becomes, perversely, evidence that the next step is needed. And so the ratchet clicks along, restricting technical progress more and more, while copyright infringement goes on unabated.

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The Little Rascals and copyright absurdity

politics, tech in changing society / /

From Lawrence Lessig’s blog:

Here’s a reductio ad absurdum of folding in the face of copyright overclaiming: “While interviewing students for a documentary about inner-city schools, a filmmaker accidentally captures a television playing in the background, in which you can just make out three seconds of an episode of ‘The Little Rascals.’ He can’t include the interview in his film unless he gets permission from the copyright holder to use the three seconds of TV footage. After dozens of phone calls to The Hal Roach Studios, he is passed along to a company lawyer who tells him that he can include the fleeting glimpse of Alfalfa in his nonprofit film, but only if he’s willing to pay $25,000. He can’t, and so he cuts the entire scene.” Jeffrey Rosen, “Mouse Trap: Disney’s Copyright Conquest,” New Republic, Oct. 28, 2002, p. 12

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