Steven Johnson Strikes Again

I'll take a quick second to point to an extremely important article by Steven Johnson. Why is it so important? Because in the digital/intellectual property conversations, in which so much debate over control is at stake, attention is rarely paid to media other than music and movies. But Johnson highlights another "invisible" form of control with Apple's new iPad (and not Kindle). Succintly, the iPad does not allow you to cut and paste material--or, in the case of online publications, to even select and highlight text.

What I appreciate about Johnson's article is that he doesn't oppose such a limitation in contemporary, digital terms, but rather in a far more classical matter. He connects the practice of cutting and pasting to the Enlightenment practice of the commonplace book: a running collection of interesting, inspiring, or important material from which to draw. I do this myself with a number of technologies--this blog, delicious, facebook, and even evernote. Technology should make this practice easier--but we can see how reactionary concerns over intellectual property are leading to design/technology decisions that impinge upon this potential.

Now I have even more reasons not to buy an iPad.

Won't Somebody Please Think of the Corporate Executives?

The Electronic Freedom Foundation has a Mxrk-style annotated post up concerning the "Comments of the Creative Community Organizations."

Thoughts: I think we all agree that artists deserve to be compensated for their work and that outright stealing is wrong. But, once acknowledged, the "Comments of the Creative Community Organizations" relies on many presuppositions and premises that are anything but "natural" or "shared common sense." We don't currently allow police officers to stroll into a home any time they want (even though we might all agree that this would make their jobs a heck of a lot easier).

Working within the constraints of conservative economics, what I hear in these requests is the death-throws of an industry begging the federal government to bail it out. Perhaps, like the auto industry, we will. The EFF is certainly nervous (if a bit over the top rhetorically in a few places) that big government will continue its trend. The difference, for me, is that without government intervention the American automotive industry would have likely collapsed. Yet we need cars, and the people who need cars need those jobs. The entertainment industry, however, seems ready to transform itself in a number of different ways. To allow issues of copyright to develop without direct government intervention (such as, say, unconstitutionally extending copyright well beyond its original 20 year scope) would not lead to the death of the music industry. It would lead to its rebirth. There will still be plenty of jobs and plenty of music, even if those jobs are in different places. And that's what scares the hell out of an army of CEOs, executives, and middle-men who live off of other people's talent.

Update

On the heels of yesterday's post, the Guardian features an article today by Cory Doctorow on the recently passed Digital Economy Act--it sounds very close to the kinds of control measures sought in the Comments of the Creative Community Organizations. Doctorow has a unique ethos for this discussion, in that he is a writer who gives books away for free and a publisher in the new digital economy. I like the tone of his conclusion:

I'm not such a techno-triumphalist that I believe that the free and open internet will solve all our socio-economic problems. But I am enough of a techno-pessimist to believe that baking surveillance, control and censorship into the very fabric of our networks, devices and laws is the absolute road to dictatorial hell.

Penny Arcade on DRM and Piracy

An outstanding post today over at Penny Arcade dealing with Ubisoft's most recent measure to combat piracy. Essentially, the game requires you to have constant access to the internet--any break in connectivity, and "poof" you lose all your progress. I spend quite a bit of coin on a top of the line Verizon connection, and I can say that my connectivity is in constant flux. I can't imagine a real world scenario where this kind of DRM isn't going to drive someone batshit crazy. As PA's Tycho comments, it will fail fast and hard.

But I really recommend Tycho's post today precisely because it points to the need for cooperation, and not competition, between the two sides (publishers and pirates). Publishers have to recognize, as mxrk indicated a long time ago, that most people are willing to pay for a product so long as it is convenient and the price is reasonable. And pirates have to realize that continually justifying the outright theft of property will undermine any validity to their initial objections (accessibility, owner's rights to transfer and duplicate, time displacement, fair pricing). If things continue to escalate, then, as Tycho writes, "nobody wins."

Boycott Douglas Coupland--Or Not

Here's another opportunity to use social media to get something right. Douglas Coupland recently taped a YouTube promotion for an upcoming book. In the promotion, he blatantly rips off an idea from ZeFrank's The Show called "The Earth Sandwich." Now, ZeFrank isn't necessarily the first person to generate the idea of an Earth sandwich, but Coupland uses locations and terms almost word for word from ZeFrank's project, videos, and user-comments. On his blog, ZeFrank admits that Coupland does give a small attribution in the video, but also explains that Coupland emailed him about using the project in his book. ZeFrank requested a footnote accreditation. He did not receive it. Seriously. Boo. You can find Coupland's video on ZeFrank's site.

To be honest, I hadn't heard of Douglas Coupland before today. And I know that any amount of controversy this generates will only serve to provide him attention. So, don't think of an asshole here. Seriously. Don't even think of that asshole Douglas Coupland. Go watch ZeFrank to help prevent any such thinking.

Hi There, Let's Talk Google

I've been writing in other places and neglecting the blog, but I thought I might try to spend some quality time here. To get started, there's an interesting story over at the NYTimes on the Google library project. I have long been a staunch supporter of the program: the general idea is to scan all books in existence into one massive, searchable digital library. This will include works under copyright (users will be able to see a portion for free but will need to pay for complete access).

Along the way, Google has discovered many orphan books--books still in-print, still under copyright, but without any clear owner. I believe these books should enter into the public domain. But, as the article reports, Google seeks to claim these works, adopting their copyright. This would make these books (a lot of which is scholarship) the intellectual property of Google, so to speak.

Now I find myself extremely suspicious of Google's motivations here. Google has yet to offer a formal statement over at their blog, but I'd expect one soon. No doubt they will argue that these books need to be adopted in order to protect them. But critics cite that this would give Google a powerful monopoly over books produced in the 20th century.

The Google Library project is something to be excited about--so long as it at least tries to remain altruistic in spirit. Jonathan Band's analysis of the recent (last November) settlement case between Google, authors, and publishers reveals that Google is in this for the money. Whether corporate greed completely stains the higher aspirations of the project remains to be seen.

But, for the first time, I'm a bit scared of the little scanner that could. One of the tell-tale indicators will likely be what Google decides to do with public domain works (whether they will be available for free, or whether access to them will be on a pay basis as it will be with copyright material).

Lessig's New Book

One of my heroes, Lawrence Lessig, has a new book out. While the website is up, the book isn't available for free yet (but I'm sure it will be soon). In the meantime, he recently gave an interview with Colbert.

I'll have to pick up Lessig's new book--I am interested in how this interview suggests a change in his argument. He seems to be completely rejecting copyright in this interview (vs. his more moderate position in earlier books). I am also a bit surprised about his "children" argument; I would think that pushing for the economic benefits of free-cultural exchange would be more persuasive to the Colbert audience. I guess its time I give Amazon more money...

A Small Old-Fashioned American Hero

Its been awhile since I've written on the RIAA and ip, but a great story on how ISP's are resisting the RIAA's insane plan came across /. this mornin. We can also cast Jerry Scroggin as the everyman hero in America's struggle to retake culture and maintain our Constitutional creative rights. Scroggings ins't a lawyer, he's a small ISP operator, and he's mad as hell and isn't going to take it anymore. Well, not really. He's a nice capitalist who isn't going to do the RIAA's bidding for free.

Scroggin is no radical. He respects the law and said he has a long history of cooperating with authorities to protect people from harm.

"If it was life threatening, I'm the first to jump," he said. "We've been contacted by police over Denial of Service and bot attacks. We'll have Secret Service and FBI conversations. We help if police are on perv watch."

But protecting against copyright violations just doesn't have the same urgency, not enough that that ISPs should be asked to work without compensation, Scroggin said. Here are the realities of being "HBO's free police," he said. First, when a media company demands he kick a customer off the network, there is very little in the way of proof offered that the person in question has committed a crime, according to Scroggin. Yet, entertainment companies want Scroggin to simply wave goodbye to a customer who might have signed up for a three-year plan. At $40 per month, that customer is potentially worth $1,440 to Scroggin over the life of the plan. That, says the ISP owner, is unreasonable.

Next, it's expensive and time consuming to ask highly paid technicians to chase down IP logs and customer IDs, Scroggin said, noting that it's especially difficult nowadays because it's extremely easy to spoof IP addresses.

Scroggin's argument calls attention to the difficulties of denying service beyond finances--especially IP spoofing. If the RIAA wants private industry to take up their cause, that's going to cost them. Otherwise, its like banks forcing automakers to monitor drivers in case one might use the car for a robbery. Automakers provide a vital service, and there is no widespread expectation that they must defend against misuse. So long as ISPs don't advertise "hey, we've got the fastest connection for downloading all your illegal music," I'd say they are covered. Ah, sometimes capitalism works just like you want it to.

Thinking back to yesterday's post, it seems the RIAA wrongly thought it was in the music business. It never was. Musicians are in the music business. Radio stations are quasi-in the music business. The labels behind the RIAA were in the marketing business. And so, as they continue to develop new strategies for protecting music, the net continues to develop new ways to market artists. These new ways might not be perfect yet, but that is the next big thing. That's when Nickelback will no longer be "fresh" rock. I'm thinking a Facebook driven radio station, powered by the recommendations of Friends with a "click to buy this track" button. Something.

Let's just take a moment and enjoy another chink the the RIAA's armor. And go Blue States for putting a halt to some of the RIAA's madness.

Obama goes to work

As I recently mentioned, I primarily voted for Obama based on his stance toward net neutrality. Obama has decided to appoint our nation's first Chief Technology Officer. User Voice, a social aggregator, has set up an interesting forum to discuss the priorities for the new appointment. Very interesting, but it is unclear whether Obama knows the site exists. The site details that "official reviews" are coming, but doesn't say who the officials are...

Regardless, take a minute to read through some of the excellent suggestions, vote, and ponder whether the previous administration would even consider for a milli-second the idea of digital public opinion.

And, Mxrk, don't waste a vote on the guy developing sharks with "lazers."

Calling for Five Minutes of Your Time

I just read a disturbing story on how libraries are being pressured away from cooperating with open source project: a concise post, written by Aaron Swartz over at Raw Thought. If you don't have the time to read the article, please, please, sign the petition.

Here's what I wrote as my message, feel free to crib, borrow, or challenge:

As a professor of classical rhetoric and new media production, I stress to my peers and students the important of open source projects. The progression of our society depends upon the free, uninhibited flow of information; digital technologies magic stems from their ability to foster cooperation and harness human interest, effort, and work.

We cannot allow any group to attempt to usurp and monopolize information. Centralizing control of library catalogues is itself a bad idea; to attempt to capitalize on such control treads on the criminal. The information collected in libraries represents the work of thousands over hundreds of years. It is not a resource to be strip-mined for benefit of a few.

Update: A few people asked for a quick summation, so here goes. There's a library database group, the OCLC, that started grassroots. Essentially, they run a master database that catalogues every book in the US. Back in the day, every library employed somebody to do this, but now almost every library relies on the database.

Well, the grassroots company has been purchased by for-profit industrialists, and they realize that they have a potential monopoly on their hands--without them, no library could run an electronic catalogue. They have grown into a power, and now they are demanding that any library that uses their system refuses to share catalogue info with any other group.

I'll Take It: Keeping Contemporary Culture and Materials in Our Classes

This came over my NCTE email this morning: The Code of Best Practices for Media Literacy Education. The nice part is that it is put together by lawyers who have read the constitution and are willing to fight for our rights. This is very unlike the obnoxious local "copyworks" representative who was ready to jump up and down to tell me how all coursepacks require royalties. To you I respond:principle two. That's right, principle two.

Its been awhile since I have had the opportunity, academically or otherwise, to mention DJ Spooky. But every time I think about copyright, I think about how smart, engaging, and important Rhythm Science really is. And its nice to know that there are forces out there working to protect everyone's right to engage the cultural mix.

Score one for the good guys

For those that don't read /., this came across today:

"In Atlantic v. Howell, the judge has totally eviscerated the RIAA's theories of 'making available' and 'offering to distribute.' In a 17-page opinion (PDF), District Judge Neil V. Wake carefully analyzed the statute and caselaw, and based on a 'plain reading of the statute' concluded that 'Unless a copy of the work changes hands in one of the designated ways, a "distribution" under [sec.] 106(3) has not taken place.' The judge also questioned the sufficiency of the RIAA's evidence pointing towards defendant, as opposed to other members of his household. This is the Phoenix, Arizona, case in which the defendant is representing himself, but received some timely help from his friends. And it's the same case in which the RIAA suggested that Mr. Howell's MP3s, copied from his CDs, were unlawful. One commentator calls today's decision 'Another bad day for the RIAA.'"

Score one for the good guys. Links are available from the original story.

Sane Intellectual Property Laws, Take 237

Here's a follow-up to my rant over at Mxrk the other day (which followed up a rant during an MLA interview), my first intellectual property rant of 2008. Chances are it shouldn't be the last- though daughter and dissertations will probably mean otherwise.

Marc Fisher over at the Washington Post recently reported that the RIAA is now targeting users who have copied files from legally purchased CDs onto their personal computers or MP3 players. Let me highlight the keywords: legally purchased, personal computers or MP3 players. According to the RIAA, any copy -repeat: ANY COPY- of a song is illegal. From the article:

At the Thomas trial in Minnesota, Sony BMG's chief of litigation, Jennifer Pariser, testified that "when an individual makes a copy of a song for himself, I suppose we can say he stole a song." Copying a song you bought is "a nice way of saying 'steals just one copy,' " she said.

Sigh. Mother-f@#king sigh. Why shouldn't the RIAA take this position? I mean, I'm surprised they didn't stumble upon this sooner. When one stops to imagine the untold millions billions the RIAA has made thanks to the changes from vinyl to analogue cassette and then from those cassettes to compact disc, it makes perfect sense that they would push for this. Think of the billions of dollars they would stand to make if we had to repurchase entire CD collections as MP3s. [On a side note, my wife got me my first iPod for Christmas-- I've spent the last two weeks burning CDs. Perhaps I should expect a letter from the RIAA?]

Normally I wouldn't be concerned about such nonsense. Except in this case the nonsense has made it all the way to the supreme court. Nevermind the Sony ruling [the pillar of contemporary intellectual property law] or the common sense understanding that purchasing media affords the buyer the right to listen to that media at her convenience. This is what happens when we allow politicians with little knowledge of or experience with digital technologies to make laws. This is what happens when we use legislation designed to protect the public performance of sheet music to govern the distribution of digital files. Ruling the personal remediation of legally purchased files illegal would make the Digital Millennium Copywrong Act seem rational. Anyone who has talked to me on this subject for more than three seconds realizes how pathetic the last statement is.

So here's my solution. In 2008, I'm a solution-oriented kind of person. No more rants, now I'm making plans. Here's the plan, you are going to love it. Here is the list of everyone in the Senate who voted in favor of the Digital Millennium Copyright Act.

<plan>DON'T VOTE FOR THESE MORONS..

Brilliant. The plan has more than one stage. Here's stage two:

VOTE OBAMA</plan>.

DMCA needs revision?

Apparently a few people have gotten together and decided that maybe we should be able to do more than simply consume media. Maybe it would be good if we had some kind of freedom to comment on it, mess with it, or decide where and when we want to consume it. Wouldn't that be cool?

I'm not holding my breath, but there's a bill on the floor to roll back the gestapo-like... I mean restrictive... I mean gestapo-like... implications of the DMCA (like the part that forbids the use of any digital production even in scientific research). The bill is officially titled H.R.1201: Digital Media Consumer's Rights Act of 2005 (DMCRA) (the link goes to a discussion over at Public Knowledge). There's word today over at Gamespot that the newly formed Electronic Consumers Association is jumping on board. From Public Knowledge's analysis:

The DMCRA would ensure that legal, non-infringing uses are not prohibited by the DMCA. Furthermore, the DMCRA encourages scientific research into technology protections. It ensures that activities solely for the purpose of research into technology protection measures are permitted. The bill does not weaken the effectiveness of technology controls; rather it ensures that the controls function solely as intended - to stop illegal activity and infringement. Infringers will still face the same penalties, but the DMCRA enables people who have legally obtained access to digital content to exercise legal uses without fear of criminal punishment.

Since this bill has been kicking around since 2005, I don't think this one's coming anytime soon. And since just about every media mogul in the world (with exception of Google) wants to see this thing buried, chances are this thing's getting squashed like the Yankees in the 21st century. But I'm glad somebody is fighting the 21st century corporate movement to eliminate fair use.

A New Dark Age?

Argh. Me tired. Baby cry. Dissertation hard. Job market taxing.

I wanted to take some time, gather what brain power I could, and point to an interesting post over at the Long Now Fondation on the New York Times' decision to allow free access to their web publication. Mrxk put up a quick reflection on the Times going free the other day, highlighting something that excites most of us in the Free Culture movement:

Starting on Wednesday, access to the archives will be available for free back to 1987, and as well as stories before 1923, which are in the public domain, Schiller said.

This is fantastic, no doubt about it. What Alexander Rose, author of the Long Foundation article "Is there more cultural value in the New York Times or Mickey Mouse" wonders about those missing 64 years. Perhaps we would like to read those articles too. Perhaps.

Those familiar with Lawrence Lessig's work Free Culture already got the reference from Rose's title. Those missing 64 years are caught up in the current legal and congressional debates over copyright (or copywrong, depending on one's perspective). The Disney corporation's powerful lawyers and lobbyists spends millions, as in hundreds of millions, to protect their intellectual property. And for the past 64 years this has meant preventing the constitutional update of public domain. As Rose points out, given the complexity of copyright law, the Times couldn't give that material away if it wanted to.

Rose ends his essay with an interesting quesiton:

I wonder what people will think about this time far into the future? A dark ages — not created by war, famine, depression, or even technological failure, but a small whistling mouse.

While hyperbolic (hopefully?), Rose raises an interesting question, one which I have been circling for some time now. if our economic and cultural development becomes increasingly dependent upon the free exchange and remixing of information, then how long until our strict intellectual property regulations begin to cripple us? I've been working a lot with Tapscott and Williams' 21st century business primer Wikinomics for my diss. They stress to CEO's and managers that failure to integrate a corporation into the free-flowing open source communities blossoming on the web could lead to stagnation, alienation, and bankruptcy. Hmm... what about the rest of us? How might continuing legal restrictions stagnate other aspects of our culture?

So Crazy it has to be True

Sigh. Just when I thought intellectual property issues couldn't get worse, this story passes through /. the other day. As reported, media broadcasters want you to pay to port media to different devices. This might not sound like a big deal, but this would in a sense contradict the Sony rule, and would seriously impact our ability to personalize how we consume media.

For those unfamiliar with the Sony rule, it is the Supreme court decision from the Betamax case in which Sony survived a crucial lawsuit brought on by the MPAA (the VCR's version of the RIAA). The Motion Picture Association of America sued Sony for copyright infringement, arguing that the VCR encouraged piracy. The underlying issue was also that the VCR allowed people to tape programs and thus fast foward through commercials (although I never did this with my VCR, I now start watching most TV programs 20 minutes late so I can fast foward through commercials with my DVR). In a landmark decision, the Supreme Court agreed with Sony's defense: that the primary function of the VCR wasn't copying for distribution, it was for time displacement--that is, most people were using their VCRs to watch a program when it was most convienent for them. This was deemed to be perfectly legal. And since the VCR had a legitimate primary function, it was not responsible for people using it for inappropriate activity (piracy). Thus the Sony rule: demonstrate that the primary function of your technology was not illegal and you are good as gold.

Since then, a few other digital technologies have tried to invoke this defense, and lost miserably (Napster, Grokster) since they could not demonstrate that their primary function wasn't to exchange copyrighted material. Napster tried to argue that it was a kind of spatial displacement--that people uploaded their music files to the network so they could access them anywhere. Nice try. Of course, they lost.

Way I see it, the media companies are looking to restrict, revoke, or bypass as much of the Sony ruling as possible. Lost in the piracy war is the growing restrictiveness of DRM--think of Sony's attempt to limit how many times a CD can be copied or Apple's restricting iTunes downloads to iPod players. When Sony attempted to limit CD burns, people rebelled. Sony was so disgraced by the public outrage (even if it was driven by a small, /.-segment of the population) that they scrapped the venture. While technology increasingly allows us to take culture anywhere, in any form, industry increasingly expects us to pay for the content multiple times. If I spend 50$ for Madden Football 2008, shouldn't I be able to play the game on my PS2 and my PSP? On my computer? If I purchase a DVD from Walmart, shouldn't I be able to rip it to my laptop for a long plane ride?

The media companies have become increasingly adept at climbing the ethical highground and framing DRM as a response to piracy. Blah, blah, blah. We have to counter this by arguing that 1) DRM is an unfair attempt to control media, 2) that some piracy is simply civil disobedience, and 3) that if we purchase content, then we should be free to control what platforms we use to access that content.

Victory is (sorta) Ours!

SoundExchange (representing the music industry) has agreed to re-think its fee structure for internet radio, 16 days before the killer rate increase. DiMA has a mixed review to the announcement. While many people are questioning the move, it at least suggests that SoundExchange is willing to come to the table and is a bit fearful to take the matter before Congress.

A Sign of the Apocolypse

I had another post written up and ready to go last night, when I came across this NYTimes article on a chef suing several posh New York restaurants for stealing her menu. I laughed it off, dismissed it as crazy, and went to bed.

But all morning the lunacy is driving me crazy. And I think its because is seems to me that capitalism is beginning to fight itself. And the side of capitalism I support is clearly losing. Let me explain.

First, let me share the portion of the article that raises my blood pressure:

Charles Valauskas, a lawyer in Chicago who represents a number of restaurants and chefs in intellectual property matters, called their discovery of intellectual property law “long overdue” and attributed it to greater competition as well as the high cost of opening a restaurant.

“Now the stakes are so high,” he said. “The average restaurant can be millions of dollars. If I were an investor I’d want to do something to make sure my investment is protected.”

Ms. Charles’s investment was modest. She built Pearl Oyster Bar for about $120,000 — a cost that in today’s market qualifies as an early-bird special.

She acknowledged that Pearl was itself inspired by another narrow, unassuming place, Swan Oyster Depot in San Francisco. But she said she had spent many months making hundreds of small decisions about her restaurant’s look, feel and menu.

Let's ignore the obvious: that her restaurant was inspired by another. We've all read Lessig, we know most of our classics are adaptations of other classics, that the fetish of original thought is a perversion of some Romantic ideals injected with steriods. What really bothers me is Valauskas' comment that an investor [in a restaurant] would want to do something to protect an investment. I completely agree. Do you know what she can do? Cook a better lobster roll. Cook better fried clams. Just f#cking cook better.

Isn't that the spirit of capitalism? Free-market competition. We all have access (at least theoretically) to the materials, now who can put them to best use? Or, I should say, that was the spirit of capitalism, which is now lost under an "protect ip" culture that makes Big Brother look like a comforting Uncle. Again, Lessig spelled this out for us: applying 19th century [PHYSICAL] industrial property laws to a 21st century [INTELLECTUAL] service economy is going to stifle our society's ability to create and compete on a global level.

I understand that the design of a restaurant, like the design of a website, is work. And that work should be rewarded. That work should be protected from theft. But not adaptation. The contemporary disdain for any kind of remixing or sampling is becoming more and more reactionary to me. And now that I'm about to be a dad, I 'm thinking about what kind of world my son/daughter will inherit. If things continue like this, then it won't be one in which America is near the front of the first world. This post is one of my contributions (with teaching, with digital activism) to changing it. So, if an adult Thomas Edward or Rowan Margaret happens to find this post, daddy did what he could, which wasn't much.

Sigh. At least I got that off my chest (catharsis is good).