net.wars

My camera can see better than I can. I don't mean that it can take better pictures than I can because of its automated settings, although this is also true. I mean it can capture things I can't *see*. The heron above, captured on a grey day along the Thames towpath, was pretty much invisible to me. I was walking with a friend. Friend pointed and said, "Look. A heron" I pointed the camera more or less where she indicated, pushed zoom to maximum, hit the button, and when I got home there it was.

If the picture were a world-famous original, there might be a squabble about who owned the copyright. I pointed the camera and pushed the button, so in our world the copyright belongs to me. But my friend could stake a reasonable claim: without her, I wouldn't have known where or when to point the camera. The camera company (Sony) could argue, quite reasonably, that the camera and its embedded software, which took years to design and build, did all the work, while my entire contribution took but a second.

I imagine, however, that at the beginning of photography artists who made their living painting landscapes and portraits might have seen reason to be pretty scathing about the notion that photography deserved copyright at all. Instead of working for months to capture the right light and nuances...you just push a button? Where's the creative contribution in that?

This thought was inspired by a recent conversation on Twitter between two copyright experts - Lilian Edwards and Andres Guadamuz - who have been thinking for years about the allocation of intellectual property rights when an AI system creates or helps to create a new work. The proximate cause was Guadamuz's stunning experiments generating images usingMidjourney.

If you try out Midjourney's image-maker via the bot on its Discord server, you quickly find that each detail you add to your prompt adds detail and complexity to the resulting image; an expert at "prompt-craft" can come extraordinarily close to painting with the generation system. Writing prompts to control these generation systems and shape their output is becoming an art in itself, an expertise that will become highly valuable in itself. Guadamuz calls it "AI whispering".

Guadamuz touches on this in a June 2022 blog posting, in which he asks about the societal impact of being able to produce sophisticated essays, artworks, melodies, or software code based on a few prompts. The best human creators will still be the crucial element - I don't care how good you are at writing prompts, unless you're the human known as Vince Gilligan you+generator are not going to produce Breaking Bad or Better Call Saul. However, generation systems *might*, as Guadamuz says, produce material that's good-enough for many contexts, given that it''s free (ish).

More recently, Guadamuz considers the subject he and Edwards were mulling on Twitter: the ownership of copyright in generated images. Guadamuz had been reading the generators' terms and conditions. OpenAI, owner of DALL-E, specifies that users assign the copyright in all "Generations" its system produces, which it then places in the public domain whilegranting users a permanent license to do whatever they want with the Generations their prompts inspire. Midjourney takes the opposite approach: the user owns the generated image, and licenses it back to Midjourney.

What Guardamuz found notable was the trend toward assuming that generated images are subject to copyright, even though lawyers have argued that they can't be and fall into the public domain. Earlier this year, the US Copyright Office has rejected a request to allow an AI copyright a work. The UK is an outlier, awarding copyright in computer-generated works to the "person by whom the arrangements necessary for the creation of the work are undertaken". This is ambiguous: is that person the user who wrote the prompt or the programmers who trained the model and wrote the code?

Much of the discussion evolved around how that copyright might be divided up. Should it be shared between the user and the company that owns the generating tool? We don't assign copyright in the words we write to our pens or word processors; but as Edwards suggested, the generator tool is more like an artist for hire than a pen. Of course, if you hire a human artist to create an image for you, contract terms specify who owns the copyright. If it's a work made for hire, the artist retains no further interest.

So whatever copyright lawyers say, the companies who produce and own these systems are setting the norms as part of choosing their business model. The business of selling today's most sophisticated cameras derives from an industry that grew up selling physical objects. In a more recent age, they might have grown up selling software add-on tools on physical media. Today, they may sell subscriptions and tiers of functionality. Nonetheless, if a company's leaders come to believe there is potential for a low-cost revenue stream of royalties for reusing generated images, it will go for it. Corbis and Getty have already pioneered automated copyright enforcement.

For now, these terms and conditions aren't about developing legal theory; the companies just don't want to get sued. These are cover-your-ass exercises, like privacy policies.

Illustrations: Grey heron hanging out by the Thames in spring 2021.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

Posted by Wendy M. Grossman at 10:05 AM | Permalink | Comments (0) | TrackBacks (0)

This week: short cuts.

Much excitement that Disney's copyright in the first Mickey Mouse film will expire in...2024. Traditionally, Disney would be lobbying to extend copyright terms - as it did in 1998, when the Copyright Term Extension Act lengthened it to life plus 70 years for authors and 95 years for corporations. In 1928, when Disney released Mickey's first cartoon, copyright lasted 28 years, renewable once. In 1955, Disney duly renewed it until 1984. The 1976 Copyright Act extended that until 2003, and the 1998 law pushed it through 2023. Other companies also profit from these extensions, but Disney is the most notorious.

The losers have been us: the acts froze the public domain for decades. In the interim, as both the Guardian and the Authors Alliance report, Disney has registered trademarks in the character, and even shorn of copyright Mickey remains protected.

The weird reason Disney is unlikely to get another extension *this* time is that the US Republican party is picking a fight with Disney over LGBTQ+ rights. US Senator Josh Hawley (R-MO) is pushing a copyright term *reduction* bill as a *punishment*. I want to laugh at the bonkersness of this, but can't because: sucks to be the humans whose rights are caught in this crossfire. But yay! public domain.

***

Airlines do it. Scalpers do it. Even educated algorithms do it. Which is how this week angry Bruce Springsteen fans complained that concert tickets hit $5,500. The reason: Ticketmaster's demand-driven dynamic pricing. Spingsteen's manager, Jon Landau, called the *average* pricing of $200 "fair"; Ticketmaster says only 1% of tickets sold for over $1,000, and 18% sold for under $99.

A Ticketmaster option adjusts pricing to the perceived market. Those first in the queue when sales opened saw four-figure prices; waiting and searching would, NJ.com reports, have found other sites with more modest prices.

In the Internet's early days, many expected it to advantage consumers by making market information transparent. On eBay, this remains somewhat true. Elsewhere, corporate consolidation and automation have eliminated that insight. In the Springsteen case, as your hand hovers on the purchase button you have seconds to decide on the price in front of you. You aren't really paying for Springsteen, you're paying for *certainty*.

***

The 1998 copyright term extension coincided with the beginnings of the MIT Media Lab's Things That Think, which presaged today's "smart" Internet of Things. Coupling that with the nascent software industry move from purchase to subscription and the history of digital rights management, made limitations on ownership of *things* imaginable.

This week, BMW offered British drivers this exact dystopia: it will charge £10 per month for heated seats for those whose car, when new, didn't include them. Of course that means that all the necessary hardware infrastructure is present in every car, and BMW activates a subscription by toggling a line of code to "true" - an infuriating reason to pay extra.

***

The shrinking company Meta is unhappy about leap seconds, joining a history of computer industry objections to celestial mechanics. For computer folks, leap seconds pose thorny synchronization problems (see also GPS); for astronomers and physicists, leap seconds crucially align human time with celestial time. When I first wrote about this in 2005, here and at Scientific American, proposals to eliminate them were already on the table at the International Telecommunications Union. That year's vote deferred the decision to its 2015 World Radiocommunications Congress - 2014noted here in 2014 - which duly deferred it again to 2023. Hence the present revival.

Meta is pushing the idea of "smearing" the leap second over 17 hours, which sounds like the kind of magic technology that was supposed to solve the Northern Ireland-Brexit conundrum. Personally, I'm for the astronomers and physicists; as the pandemic, the climate, and the war remind, it's unwise to forget our dependence on the natural world. Prediction: the 2023 meeting will defer it again because the two sides will never agree. Different people need different kinds of time, and that's how it is.

***

The problem with robots and AIs is that they expect consistency humans rarely provide. This week, a chess-playing robot broke a seven-year-old's finger during a game in the Moscow Chess Open when the boy began his move faster than it was programmed to expect. As Madeline Claire Elish predicted in 2016 in positing moral crumple zones, the tournament organizer seemed to blame the child for not giving the robot enough time. Autonomous vehicle, anyone?

***

And finally: remaining a meme almost 30 years after its first publication in The New Yorker is Peter Steiner's cartoon of a dog at a computer telling another dog, "On the Internet no one knows you're a dog". It's a wonderful wish-it-were-truth. But it was dubious even in 1993, when most online contacts were strangers who could, theoretically, safely assume fake identities. However, it's hard to lie consistently over a period of time, and even harder to disguise fundamental characteristics that shape life experience. Today's surveillance capitalism would spot the dog immediately - but its canine nature would be obvious anyway from its knee-level world view. On the Internet everyone always knew you were a dog - they just didn't used to care.

Illustrations: US Senator Josh Hawley (R-MO), running to expand the public domain.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

Posted by Wendy M. Grossman at 12:39 PM | Permalink | Comments (0) | TrackBacks (0)

Somehow I had missed the hiQ Labs v. LinkedIn case until this week, when I struggled to explain on Twitter why condemning web scraping is a mistake. Over the years, many have made similar arguments to ban ordinary security tools and techniques because they may also be abused. The usual real world analogy is: we don't ban cars just because criminals can use them to escape.

The basics: hiQ, which styles itself as a "talent management company", used automated bots to scrape public LinkedIn profiles, and analyze them into a service advising companies what training they should invest in or which employee might be on the verge of leaving. All together now: *so* creepy! LinkedIn objected that the practice violates its terms of service and harms its business. In return, hiQ accused LinkedIn of purely anti-competitive motives, and claimed it only objected now because it was planning its own version.

LinkedIn wanted the court to rule that hiQ's scraping its profiles constitutes felony hacking under the Computer Fraud and Abuse Act (1986). Meanwhile, hiQ argued that because the profiles it scraped are public, no "hacking" was involved. EFF, along with DuckDuckGo and the Internet Archive, which both use web scraping as a basic tool, filed an amicus brief arguing correctly that web scraping is a technique in widespread use to support research, journalism, and legitimate business activities. Sure, hiQ's version is automated, but that doesn't make it different in kind.

There are two separate issues here. The first is web scraping itself, which, as EFF says, has many valid uses that don't involve social media or personal data. The TrainTimes site, for example, is vastly more accessible than the National Rail site it scrapes and re-presents. Over the last two decades, the same author, Matthew Somerville, has built numerous other such sites that avoid the heavy graphics and scripts that make so many information sites painful to use. He has indeed gotten in trouble for it sometimes; in this example, the Odeon movie theaters objected to his making movie schedules more accessible. (Query: what is anyone going to do with the Odeon movie schedule beyond choosing which ticket to buy?)

As EFF writes in its summary of the case, web scraping has also been used by journalists to investigate racial discrimination on Airbnb and find discriminatory pricing on Amazon; in the early days of the web, civic-minded British geeks used web scraping to make information about Parliament and its debates more accessible. Web scraping should not be illegal!

However, that doesn't mean that all information that can be scraped should be scraped or that all information that can be scraped should be *legal* to scrape. Like so many other basic techniques, web scraping has both good and bad uses. This is where the tricky bit lies.

Intelligence agency personnel these days talk about OSINT - "open source intelligence". "Open source" in this context (not software!) means anything they can find and save, which includes anything posted publicly on social media. Journalists also tend to view anything posted publicly as fair game for quotation and reproduction - just look at the Guardian's live blog any day of the week. Academic ethics require greater care.

There is plenty of abuse-by-scraping. As Olivia Solon reported last year, IBM scraped Flickr users' innocently posted photographs repurposed them into a database to train facial recognition algorithms, later used by Immigration and Customs Enforcement to identify people to deport. (In June, when the protests after George Floyd's murder led IBM to pull back on selling facial recognition "for mass surveillance or racial profiling".) Clearview AI scraped billions of photographs off social media and collating them into a database service to sell to law enforcement. It's safe to say that no one posted their profile on LinkedIn with the intention of helping a third-party company get paid by their employer to spy on them.

Nonetheless, those abuse cases do not make web scraping "hacking" or a crime. They are difficult to rectify in the US because, as noted in last week's review of 30 years of data protection, the US lacks relevant privacy laws. Here in the UK, since the data Somerville was scraping was not personal, his complainants typically argued that he was violating their copyright. The hiQ case, if brought outside the US, would likely be based in data protection law.

In 2019, the Ninth Circuit ruled in favor of hiQ, saying it did not violate CFAA because LinkedIn's servers were publicly accessible. In March, LinkedIn asked the Supreme Court to review the case. SCOTUS could now decide whether scraping publicly accessible data is (or is not) a CFAA violation.

What's wrong in this picture is the complete disregard for the users in the case. As the National Review says, a ruling for hiQ could deprive users of all control over their publicly posted information. So, call a spade a spade: at its heart this case is about whether LinkedIn has an exclusive right to abuse its users' data or whether it has to share that right with any passing company with a scraping bot. The profile data hiQ scraped is public, to be sure, but to claim that opens it up for any and all uses is no more valid than claiming that because this piece is posted publicly it is not copyrighted.

Illustrations: I simply couldn't think of one.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

Posted by Wendy M. Grossman at 1:48 PM | Permalink | Comments (0) | TrackBacks (0)

Last week's review of 30 years of writing about the Internet and copyright focused on rightsholders' efforts to protect a business model developed for physical media and geographical restrictions in the face of new, global, digital media. Of the counter-efforts, mainstream attention has focused on the illegal ones; I squeezed in links to most of my past writing on "pirate" sites, although I missed pieces on The Pirate Bay, BitTorrent, and new business models. I also missed out discussing large-scale appropriation by companies that are apparently too big to sue, such as Google books and the more recent fuss over the Internet Archive's Controlled Digital Lending and National Emergency Library.

More interesting, however, are the new modes of access the Internet clearly could open up to niche material and frustrated artists, creators, and collaborators. At the MIT Media Lab's 1994 open day (TXT), a remarkable collection of Hollywood producers, and creative artists predicted that the Internet would unlock a flood of (American) creativity that previously had no outlet (although Penn Jillette doubted the appeal of interactive storytelling).

Lots of this has actually happened. Writers have developed mainstream audiences through self-publishing; web-based publishing enabled generations of cartoonists; and YouTube and TikTok offer options that would never fit into a TV schedule. Mass collaboration has also flourished: Wikipedia, much despised in some quarters 15 years ago, has ripened into an invaluable resource (despite its flaws that need fixing), as has OpenStreetMap, which was outed this week as a crucial piece of infrastructure for Facebook, Apple, Amazon, and Microsoft.

Developing new forms of copyright law has been a critical element in all this, beginning with the idea of copyleft, first used in 1976 and fleshed out in more detail by Richard Stallman in 1985. Traditionally, either you copyrighted the work and claimed all rights or you put the work into the public domain for everyone to use for free, as the satirist Tom Lehrer has recently done.

Stallman, however, wanted to ensure that corporate interests couldn't appropriate the work of volunteers, and realized that he could write a copyright license that dictates those terms, paving the way for today's open source community. In 2001, Lawrence Lessig, Hal Abelson, and Eric Eldred founded Creative Commons to make it easy for people posting new material to the web to specify whether and how others can use it. It's easy to forget now how big an undertaking it was to create licenses that comply with so many legal systems. I would argue that it's this, rather than digital rights management that has enabled widespread Internet creative publishing.

The third piece of this story has played a crucial role in this pandemic year of A.D. 2020. In the halls of a mid-1990s Amsterdam conference on copyright, a guy named Christopher Zielinski made this pitch: a serious problem was brewing around early paywall experiments. How were people in poorer countries going to gain access to essential scientific and medical information? He had worked for the WHO, I think; in a later email I remember a phrase about information moving through disadvantaged countries in "armored trucks".

Zielinski was prescient. In 2015, the Ebola virus killed 10,000 people in Liberia, Sierra Leone, and Guinea, in part because received wisdom held that Ebola was not present in West Africa, slowing the initial response. It was only later that three members of a team drafting Liberia's Ebola recovery plan discover that scientific researchers had written articles establishing its presence as long ago as 1982. None of the papers were co-written with Liberian scientists, and they were published in European journals, which African researchers cannot afford. In this case, as writers Bernice Dahn, Vera Mussah, and Cameron Nutt laid out, closed access cost lives: "Equity must be an indispensable goal in protecting from threats like Ebola, and in the quality of care delivered when prevention fails."

Meanwhile, in another part of the forest...as early as 1991 others saw the potential of using the Internet to speed up scientific publishing and peer review, leading Paul Ginsparg to respond by creating the arXiv repository to share preprints of physics journal articles. Numerous copies for other fields followed. In 2003, leading research, scientific, and cultural institutions created and signed the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities laying out steps to promote the Internet as a medium for disseminating global knowledge. By 2006, the six-year-old Public Library of Science had set up PLOS ONE, the first peer-reviewed open access scientific journal for primary research in science and medicine.

While there are certainly issues to be solved, such as the proliferation of fake journals, improving peer review, and countering enduring prejudice that ties promotions and prestige to traditional proprietary journals, open access continues to grow. Those who believe that the Internet is going to destroy science are likely to be wrong, and publishers who don't plan for this future are likely to crater.

The global distribution accessible to artists and creators is valuable, but openness is critical to the scientific method of building knowledge. The open approach has been critical during the pandemic. As vaccine candidates prepare for takeoff, we can thank the Internet and the open access movement that it's taken a year, not decades.

Illustrations: Edward Jenner, who created the first vaccine, for smallpox (from the Wellcome images collection, via Wikimedia).

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

Posted by Wendy M. Grossman at 12:26 PM | Permalink | TrackBacks (0)

As if on cue, after last week's conclusion that the battle over crypto will never reach a settlement, the Irish Times, reports that the EU Council of Ministers has a draft council resolution demanding "lawful and targeted" access to encrypted communications. Has no one learned anything in the last four years?

Crypto was the first of a series of reviews of the most durable, intractable disputes of the last 20 years by highlighting how net.wars has written about it as the 1,000th column approaches. The second is copyright, which has been irredeemably altered by the arrival of digital technologies.

Where crypto is the same story endlessly repeated, copyright is a collection of interlinked conflicts that comprise a struggle by rightsholder industries (entertainment, music, publishing, news, software) to continue business as usual while the world changed. Loosely, these conflicts fall into three clusters: legislation, enforcement, and expansion.

New legislation beginning in the 1990s essentially sought to limit what many would see as the normal functioning of computer networks. The Digital Millennium Copyright Act (1998) in the US and the EU Copyright Directive (1996), modified in 2001 and 2019 both include banning technology that can be used to bypass copy protection. Contemporary critics pointed out that this could as easily be scissors and Liquid Paper, but the intended target was software to break digital rights management and copy protection. Today, DRM is built into ebooks and Blu-Ray discs - but also HDMI TV cables, third-party ink cartridges and even remote garage door openers.

These anti-circumvention provisions, however, have been abused to block security researchers from publishing unwanted findings, by John Deere to stop farmers from repairing their tractors, and by Apple to oppose modifying iPhones. It's also been used more creatively.

The DMCA and the EUCD are also vectors for censorship when rightsholders overreach in demanding the removal of copyrighted material or automated takedown systems make mistakes. The 2019 revision of the EUCD expects sites to pay for even small news snippets accompanying links (an old EU obsession) and filter copyrighted content at time of upload, requirements Poland has challenged in court.

Conflicts around enforcement have pursued each new method of sharing material in turn, beginning with bulletin boards and floppy disks and seguing through Usenet, Napster (2000), file-sharing, and torrents in the mid-2000s. The oft-forgotten case that originally created today's notice and takedown rules was the 1994-1995 fight between the Church of Scientology and Usenet critics that saw Scientology's secrets sprayed across the Internet. That case also heralded a period when rightsholders were decidedly hostile. The two biggest photo agencies pursued small businesses with licensing fee demands; recording companies and movie studios took downloaders to court; some rightsholders issued takedown notices against fan fiction and even knitting patterns based on Dr Who. Many of us said from the beginning that the best answer to pirate sites was building legal sites; by the 2010s this was proving correct.

The stage has shifted for both legislation and enforcement, as the US government in particular (but not solely) seeks to embed expansion of IP laws and anti-piracy enforcement in free trade agreements. In 2014, copyright was taken out of the Transatlantic Trade Investment Partnership agreement, but digital rights NGOs know they have to keep watching carefully - when they can get a look at the text.

Expansion has two forms: length and scope. Term extension means that when a song was written in 1969 its copyright would have expired in 1997, renewable until 2025 but now lasts for the author's life plus 70 years (2088, for the song I have in mind). Scope has expanded inevitably as copyrightable software becomes embedded in every physical device.

The fundamental conflict was predicted in 1996, when Pamela Samuelson published The Copyright Grab in Wired. Under "copyright maximalism", she warned, every piece of copyrighted work, no matter how small, would be chargeable, as suggested by Mark Stefik's Letting Loose the Light essay.

As Samuelson and others pointed out, until the Internet IP law only mattered to a few specialists. By opening universal distribution, the Internet turned the laws appropriate for geographically-delineated commercial publishers into laws that make no sense to consumers, as universities were the first to find out. These mismatches; many copyright revisions of the 1990s and 2000s sought "harmonization", always in the most restrictive direction. The Canadian legal scholar Michael Geist to established that these apparently distinct national initiatives had a common source.

There have been some exceptions, such as legal reviews and work to open orphan works and parody. Challenges such as 3D printing still await.

The real story, though, is the very difficult landscape for artists and creators, who lost much control over their work because of media consolidation in the 1980s and 1990s the economic shocks of 9/11 and the 2008 financial crash, and advertising's online shift. Creators seeking income are also facing floods of free blog postings, videos, music, and, especially, images. No amount of copyright shenanigans is solving the fundamental problem: how to help artists and creators make a living from their work. That is what copyright law was created to enable. Never forget that.

Illustrations: A still from Sita Sings the Blues, written and directed by Nina Paley, who believes copyright should be abolished.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

Posted by Wendy M. Grossman at 1:36 PM | Permalink | Comments (0) | TrackBacks (0)

In the last few weeks, unlike any other period in the 965 (!) previous weeks of net.wars columns: there were *five* pieces of (relatively) good news in the (relatively) restricted domain of computers, freedom, and privacy.

One: Google sibling Sidewalk Labs has pulled out of the development it had planned with Waterfront Toronto. This project has been contentious ever since the contract was signed in 2017 to turn a 12-acre section of Toronto's waterfront into a data-driven, sensor-laden futuristic city. In 2018, leading Canadian privacy pioneer Ann Cavoukian quit the project after Sidewalk Labs admitted that instead of ensuring the data it collected wouldn't be identifiable it actually would grant third parties access to it. At a panel on smart city governance at Computers, Privacy, and Data Protection 2019, David Murakami Wood gave the local back story (go to 43:30) on the public consultations and the hubris on display. Now, blaming the pandemic-related economic conditions, Sidewalk Labs has abandoned the plan altogether; its public opponents believe the scheme was really never viable in the first place. This is good news, because although technology can help some of urban centers' many problems, it should always be in the service of the public, not an opportunity for a private company to seize control.

Two: The Internet Corporation for Assigned Names and Numbers has rejected the Internet Society's proposal to sell PIR, the owner of the .org generic top-level domain, to the newly created private equity firm Ethos Capital, Timothy B. Lee reports at Ars Technica. Among its concerns, ICANN cited the $360 million in debt that PIR would have been required to take on, Ethos' lack of qualifications to run such a large gTLD, and the lack of transparency around the whole thing. The decision follows an epistolary intervention by California's Attorney General, who warned ICANN that it thought that the deal "puts profit above the public interest" and that ICANN was "abandoning its core duty to protect the public interest". As the overseer of both it (as a non-profit) and the sale, the AG was in a position to make its opinion hurt. At the time when the sale was announced, the Internet Society claimed there were other suitors. Perhaps now we'll find out who those were.

Three: The textbook publishers Cengage and McGraw-Hill have abandoned their plan to merge, saying that antitrust enforcers' requirements that they divest their overlapping businesses made the merger uneconomical. The plan had attracted pushback from students, consumer groups, libraries, universities, and bookstores, as well as lawmakers and antitrust authorities.

Four: Following a similar ruling from the UK Intellectual Property Office, the US Patent and Trademark Office has rejected two patents listing the Dabus AI system as the inventor. The patent offices argue that innovations must be attributed to humans in order to avoid the complications that would arise from recognizing corporations as inventors. There's been enough of a surge in such applications that the World Intellectual Property Organization held a public consultation on this issue that closed in February. Here again my inner biological supremacist asserts itself: I'd argue that the credit for anything an AI creates belongs with the people who built the AI. It's humans all the way down.

Five: The US Supreme Court has narrowly upheld the right to freely share the official legal code of the state of Georgia. Carl Malamud, who's been liberating it-ought-to-be-public data for decades - he was the one who first got Securities and Exchange Commission company reports online in the 1990s, and on and on - had published the Official Code of Georgia Annotated. The annotations in question, which include summaries of judicial opinions, citations, and other information about the law, are produced by Lexis-Nexus under contract to the state of Georgia. No one claimed the law itself could be copyrighted, but the state argued it owned copyright in the annotations, with Lexis-Nexus as its contracted commercial publisher. The state makes no other official version of its code available, meaning that someone consulting the non-annotated free version Lexis-Nexus does make available would be unaware of later court decisions rejecting parts of some of the laws the legislature passed. So Malamud paid the hundreds of dollars to buy a full copy of the official annotated version, and published it in full on his website for free access. The state sued. Public.Resource lost in the lower courts but won on appeal - and, in a risky move, urged the Supreme Court to take the case and set the precedent. The vote went five to four. The impact will be substantial. Twenty-two other states publish their legal code under similar arrangements with Lexis-Nexus. They will now have to rethink.

All these developments offer wins for the public in one way or another. None should be cause for complacence. Sidewalk Labs and other "surveillance city" purveyors will try again elsewhere with less well-developed privacy standards - and cities still have huge problems to solve. The future of .org, the online home for the world's non-profits and NGOs, is still uncertain. Textbook publishing is still disturbingly consolidated. The owners of AIs will go on seeking ways to own their output. And ensuring that copyright does not impede access to the law that governs those 23 American states does not make those laws any more just. But, for a brief moment, it's good.

Illustrations:

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

This week's net.wars, "Quincunx", wakes up to discover a confluence of (relatively) good news in the last few weeks of computers, freedom, and privacy: https://www.pelicancrossing.net/netwars/2020/05/quincunx.html

Posted by Wendy M. Grossman at 12:36 PM | Permalink | Comments (0) | TrackBacks (0)

The Internet has made many aspects of intellectual property contentious at the best of times. In this global public health emergency, it seems inarguable that some of them should be set aside. Who can seriously object to copying ventilator parts so they can be used to save lives in this crisis? Similarly, if there were ever a moment for scientific journals to open up access to all paywalled research on coronaviruses to aid scientists all over the world, this is it.

But what about book authors, the vast majority of whom make only modest sums from their writing? This week, National Public Radio set off a Twitter storm when it highlighted the Internet Archive's "National Emergency Library". On Twitter, authors demanded to know why NPR was promoting a "pirate site". One wrote, "They stole [my book]." Another called it "Flagrant and wilful stealing." Some didn't mind: "Thrilled there's 15 of my books"; Longtime open access campaigner Cory Doctorow endorsed it.

The background: the Internet Archive's Open Library originally launched in 2006 with a plan to give every page of every book its own URL. Early last year, public conflict over the project built enough for net.wars to notice, when dozens of authors', creators', and publishers' organizations accused the site of mass copyright violation and demanded it cease distributing copyrighted works without permission.

The Internet Archive finds self-justification in a novel argument: that because the state of California has accepted it as a library it can buy and scan books and "lend" the digital copies without requiring explicit permission. On this basis, the Archive offers anyone two weeks to read any of the 1.4 million copyrighted books in its collection either online as images or downloaded as copy-protected Adobe Digital Editions. Meanwhile, the book is unavailable to others, who wait on a list, as in a physical library. The Archive's white paper by lawyers David Hansen and Kyle K. Courtney argues that this "controlled digital lending" is legal.

Enter the coronavirus,. On the basis that the emergency has removed access to library books from both school kids and adults for teaching, research, scholarship, and "intellectual stimulation", the Archive is dropping the controls - "suspending waitlists" - and is presenting those 1.4 million books as the globally accessible National Emergency Library. "An opportunistic attack", the Association of American Publishers calls it.

The anger directed at the Archive has led it to revise its FAQ (Google Doc) and publish a blog posting. In both it explains that you can still only "borrow" a book for 14 days, but no waitlists means others can, too, and you can renew immediately if you want more time. The change will last until June 30, 2020 or the end of the US national emergency, whichever is later. It claims support "from across the library and educational communities". According to the FAQ, the collection includes very few current textbooks; the collection is primarily ordinary books published between 1922 and the early 2000s.

The Archive still justifies all this as "fair use" by saying it's what libraries do: buy (or accept as donations) and lend books. Outside the US, however, library lending pays authors a small but real royalty on those loans, payments the Archive ignores. For the National Writers Union, Edward Hasbrouck objects strenuously: besides not paying authors or publishers, the Archive takes no account of whether the works are still in print or available elsewhere in authorized digital editions. Authors who have updated digital editions specifically for the current crisis have no way to annotate the holdings to redirect people. Authors *can* opt out -but opt-out is the opposite of how copyright law works. " Do librarians and archivists really want to kick authors while our incomes are down?" he asks, pointing to the NWU's 2019 explanation of why CDL is a harmful divergence from traditional library lending. Instead, he suggests that public funds should be spent to purchase or license the books for public use.

Other objectors make similar points: many authors make very little in the first place; authors with new books, the result of years of work, are seeing promotional tours and paid speaking engagements collapse. Others' books are being delayed or canceled. Everyone else involved in the project is being paid - just not the people who created the works in the first place.

At the New Yorker, writer Jill Lepore again cites Courtney, who argues that in exigent circumstances libraries have "superpowers" that allows them to grant exceptional access "for research, scholarship, and study". This certainly seems a reason for libraries of scientific journal articles, like JSTOR, to open up their archives. But is the Archive's collection comparable?

Overall, it seems to me there are two separate issues. The first is the service itself - the unique legal claim, the service's poor image quality and typo-ridden uncorrected ebooks, and the refusal to engage with creators and publishers. The second - that it's an emergency stop-gap - is more defensible; no one expected the abrupt closure of libraries and schools. A digital service is ideally placed to fill the resulting gaps, and ensuring universal access to books should be part of our post-crisis efforts to rebuild with better resilience. For the first, however, the Internet Archive should engage with authors and publishers. The result could be a better service for all sides.

Illustrations: Books (Abhi Sharma via wikimedia

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

Posted by Wendy M. Grossman at 11:08 PM | Permalink | Comments (0) | TrackBacks (0)

We normally think of the Internet Archive, founded in 1996 by Brewster Kahle, as doing good things. With a mission of "universal access to all knowledge", it archives the web (including many of my otherwise lost articles), archives TV news footage and live concerts, and provides access to all sorts of information that would otherwise be lost.

Equally, authors usually love libraries. Most grew up burrowed into the stacks, and for many libraries are an important channel to a wider public. A key element of the Archive's position in what follows rests on the 2007 California decision officially recognizing it as a library.

Early this year, myriad authors and publishers organizations - including the UK's Society of Authors and the US's Authors Guild - issued a joint statement attacking the Archive's Open Library project. In this "controlled digital lending" program, borrowers - anyone, via an Archive account - get two weeks to read ebooks, either online in the Archive's book reader or offline in a copy-protected format in Adobe Digital Editions.

What offends rights holders is that unlike the Gutenberg Project, which offers downloadable copies of works in the public domain, Open Library includes still-copyrighted modern works (including net.wars-the-book). The Archive believes this is legal "fair use".

You may, like me, wonder if the Archive is right. The few precedents are mixed. In 2000, "My MP3.com" let users stream CDs after proving ownership of a physical copy by inserting it in their CD drive. In the resulting lawsuit the court ruled MP3.com's database of digitized CDs an infringement, partly because it was a commercial, ad-supported service. Years later, Amazon does practically the same thing..

In 2004, Google Books began scanning libraries' book and magazine collections into a giant database that allows searchers to view scraps of interior text. In 2015, publishers lost their lawsuit. Google is a commercial company - but Google Books carries no ads (though it presumably does collect user data), and directs users to source copies from libraries or booksellers.

A third precedent, cited by the Authors Guild, is Capitol Records v. ReDigi. In that case, rulings have so far held that ReDigi's resale process, which transfers music purchased on iTunes from old to new owners means making new and therefore infringing copies. Since the same is true of everything from cochlear implants to reading a web page, this reasoning seems wrong.

Cambridge University Press v. Patton, filed in 2008 and still ongoing, has three publishers suing Georgia State University over its e-reserves system, which loans out course readings on CDL-type terms. In 2012, the district court ruled that most of this is fair use; appeal courts have so far mostly upheld that view.

The Georgia case is cited David R. Hansen and Kyle K. Courtney in their white paper defending CDL. As "format-shifting", they argue CDL is fair use because it replicates existing library lending. In their view, authors don't lose income because the libraries already bought copies, and it's all covered by fair use, no permission needed. One section of their paper focuses on helping libraries assess and minimize their legal risk. They concede their analysis is US-only.

From a geek standpoint, deliberately introducing friction into ebook lending in order to replicate the time it takes the book to find its way back into the stacks (for example) is silly, like requiring a guy with a flag on a horse to escort every motor car. And it doesn't really resolve the authors' main complaints: lack of permission and no payment. Of equal concern ought to be user complaints about zillions of OCR errors. The Authors Guild's complaint that saved ebooks "can be made readable by stripping DRM protection" is, true, but it's just as true of publishers' own DRM - so, wash.

To this non-lawyer, the white paper appears to make a reasonable case - for the US, where libraries enjoy wider fair use protection and there is no public lending right, which elsewhere pays royalties on borrowing that collection societies distribute proportionately to authors.

Outside the US, the Archive is probably screwed if anyone gets around to bringing a case. In the UK, for example, the "fair dealing" exceptions allowed in the Copyright, Designs, and Patents Act (1988) are narrowly limited to "private study", and unless CDL is limited to students and researchers, its claim to legality appears much weaker.

The Authors Guild also argues that scanning in physical copies allows libraries to evade paying for library ebook licenses. The Guild's preference, extended collective licensing, has collection societies negotiating on behalf of authors. So that's at least two possible solutions to compensation: ECL, PLR.

Differentiating the Archive from commercial companies seems to me fair, even though the ask-forgiveness-not-permission attitude so pervasive in Silicon Valley is annoying. No author wants to be an indistinguishable bunch of bits an an undifferentiated giant pool of knowledge, but we all consume far more knowledge than we create. How little authors earn in general is sad, but not a legal argument: no one lied to us or forced us into the profession at gunpoint. Ebook lending is a tiny part of the challenges facing anyone in the profession now, and my best guess is that whatever the courts decide now eventually this dispute will just seem quaint.

Illustrations: New York Public Library (via pfhlai at Wikimedia).

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

Posted by Wendy M. Grossman at 4:42 PM | Permalink | Comments (0) | TrackBacks (0)

Until Wednesday, I was not familiar with the use of "sync" to stand for a music synchronization license - that is, a license to use a piece of music in a visual setting such as a movie, video game, or commercial. The negotiations involved can be Byzantine and very, very slow, in part because the music's metadata is so often wrong or missing. In one such case, described at Music 4.5's seminar on developing new deals and business models for sync (Flash), it took ten years to get the wrong answer from a label to the apparently simple question: who owns the rights to this track on this compilation album?

The surprise: this portion of the music business is just as frustrated as activists with the state of online copyright enforcement. They don't love the Digital Millennium Copyright Act (2000) any more than we do. We worry about unfair takedowns of non-infringing material and bans on circumvention tools; they hate that the Act's Safe Harbor grants YouTube and Facebook protection from liability as long as they remove content when told it's infringing. Google's automated infringement detection software, ContentID, I heard Wednesday, enables the "value gap", which the music industry has been fretting about for several years now because the sites have no motivation to create licensing systems. There is some logic there.

However, where activists want to loosen copyright, enable fair use, and restore the public domain, they want to dump Safe Harbor, either by developing a technological bypass; or change the law; or by getting FaceTube to devise a fairer, more transparent revenue split. "Instagram," said one, "has never paid the music industry but is infringing copyright every day."

To most of us, "online music" means subscription-based streaming services like Spotify or download services like Amazon and iTunes. For many younger people, especially Americans though, YouTube is their jukebox. Pex estimates that 84% of YouTube videos contain at least ten seconds of music. Google says ContentID matches 99.5% of those, and then they are either removed or monetized. But, Pex argues, 65% of those videos remain unclaimed and therefore provide no revenue. Worse, as streaming grows, downloads are crashing. There's a detectable attitude that if they can fix licensing on YouTube they will have cracked it for all sites hosting "creator-generated content".

It's a fair complaint that ContentID was built to protect YouTube from liability, not to enable revenues to flow to rights holders. We can also all agree that the present system means millions of small-time creators are locked out of using most commercial music. The dancing baby case took eight years to decide that the background existence of a Prince song in a 29-second home video of a toddler dancing was fair use. But sync, too, was designed for businesses negotiating with businesses. Most creators might indeed be willing to pay to legally use commercial music if licensing were quick, simple, and cheap.

There is also a question of whether today's ad revenues are sustainable; a graphic I can't find showed that the payout per view is shrinking. Bloomberg finds that increasingly winning YouTubers are taking all with little left for the very long tail.

The twist in the tale is this. MP3 players unbundled albums into songs as separate marketable items. Many artists were frustrated by the loss of control inherent in enabling mix tapes at scale. Wednesday's discussion heralded the next step: unbundling the music itself, breaking it apart into individual beats, phrases and bars, each licensable.

One speaker suggested scenarios. The "content" you want to enjoy is 42 minutes long but your commute is only 38 minutes. You might trim some "unnecessary dialogue" and rearrange the rest so now it fits! My reaction: try saying "unnecessary dialogue" to Aaron Sorkin and let's see how that goes.

I have other doubts. I bet "rearranging" will take longer than watching the four minutes. Speeding up the player slightly achieves the same result, and you can do that *now* for free (try really blown it. More useful was the suggestion that hearing-impaired people could benefit from being able to tweak the mix to fade the background noise and music in a pub scene to make the actors easier to understand. But there, too, we actually already have closed captions. It's clear, however, that the scenarios may be wrong, but the unbundling probably isn't.

In this world, we won't be talking about music, but "music objects". Many will be very low-value...but the value of the total catalogue might rise. The BBC has an experiment up already: The Mermaid's Tears, an "object-based radio drama" in which you can choose to follow any one of the three characters to experience the story.

Smash these things together, and you see a very odd world coming at us. It's hard to see how fair use survives a system that aims to license "music objects" rather than "music". In 1990, Pamela Samuelson warned about copyright maximlism. That agenda does not appear to have gone away.

Illustrations: King David dancing before the Ark of the Covenant, 'Maciejowski Bible', Paris ca. 1240 (via Discarding Images.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

Posted by Wendy M. Grossman at 1:43 PM | Permalink

Great, anguished howls were heard on Twitter last Sunday when Ustream silenced Neil Gaiman's acceptance speech at the Hugo awards, presented at the World Science Fiction Convention. On Tuesday, something similar happened when, Slate explains, YouTube blocked access to Michelle Obama's speech at the Democratic National Convention once the live broadcast had concluded. Yes, both one of our premier fantasy writers and the First Lady of the United States were silenced by over-eager, petty functionaries. Only, because said petty functionaries were automated copyright robots, there was no immediately available way for the organizers to point out that the content identified as copyrighted had been cleared for use.

TV can be smug here: this didn't happen when broadcasters were in charge. And no, it didn't: because a large broadcaster clears the rights and assumes the risks itself. By opening up broadcasting to the unwashed millions, intermediaries like Google (YouTube) and UStream have to find a way to lay off the risk of copyright infringement. They cannot trust their users. And they cannot clear - or check - the rights manually for millions of uploads. Even rights holder organizations like the RIAA, MPAA, and FACT, who are the ones making most of the fuss, can't afford to do that. Frustration breeds market opportunity, and so we have automated software that crawls around looking for material it can identify as belonging to someone who would object. And then it spits out a complaint and down goes the material.

In this case, both the DNC and the Hugo Awards had permission to use the bit of copyrighted material the bots identified. But the bot did not know this; that's above its pay grade.

This is all happening at a key moment in Europe: early next week, the public consultation closes on the notice-and-takedown rules that govern, among other things, what ISPs and other hosts are supposed to do when users upload material that infringes copyright. There's a questionnaire for submitting your opinions; you have until Tuesday, September 11.

Today's notice and takedown rules date to about the mid-1990s and two particular cases. One, largely but not wholly played out in the US, was the several-years fight between the Church of Scientology and a group of activists who believed that the public interest was served by publishing as widely as possible the documents Scientology preserves from the view of all but it3s highest-level adherents, which I chronicled for Wired in 1995. This case - and other early cases of claimed copyright infringement - let to the passage in 1998 of the Digital Millennium Copyright Act, which is the law governing the way today's notice-and-takedown procedures operate in the US and therefore, since many of the Internet's biggest user-generated content sites are American, worldwide.

The other important case was the 1997 British case of Laurence Godfrey, who sued Demon Internet for libel over a series of Internet postings, spoofed to appear as though they came from him, which the service failed to take down despite his requests. At the time, a fair percentage of Internet users believed - or at least argued - that libel law did not apply online; Godfrey, through the Demon case and others, set out to prove them wrong, and succeeded. The Demon case was eventually settled in 2000, and set the precedent that ISPs could be sued for libel if they failed to have procedures in place for dealing with complaints like these. Result: everyone now has procedures and routinely operates notice-and-takedown, just as cyber rights lawyer Yaman Akdeniz predicted in 1999.

A different set of notice-and-takedown regime is operated, of course, by the Internet Watch Foundation, which was founded in 1996 and recommends that ISPs remove material that IWF have staff have examined and believe is potentially illegal. This isn't what we're talking about here: the IWF responds to complaints from the public and at all stages humans are involved in making the decisions.

Granted that it's not unreasonable that there should be some mechanism to enable people to complain about material that infringes their copyrights or is libellous, what doesn't get sufficient attention is that there should also be a means of redress for those who are unjustly accused. Even without this week's incidents we have enough evidence - thanks to the detailed collection of details showing how DMCA notices have been used and abused in the years since the law's passage being continuously complied at Chilling Effects - to be able to see the damage that overbroad, knee-jerk deletion can do.

It's clear that balance needs to be restored. Users should be notified promptly when the content they have posted is removed; there should be a fast turnaround means of redress; and there clearly needs to be a mechanism by which users can say, "This content has been cleared for use".

By those standards, Ustream has actually behaved remarkably well. It hasapologized and is planning to rebroadcast the Hugo Awards on Sunday, September 9. Meanwhile, it's pulled its automated copyright policing system to understand what went wrong. To be fair, the company that supplies the automated copyright policing software, Vobile, argues that its software wasn't at fault: it merely reports what it finds. It's up to the commissioning company to decide how to act on those reports. Like we said: above the bot's pay grade.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Posted by Wendy M. Grossman at 10:42 PM | Permalink | Comments (0) | TrackBacks (0)

Reading over the accounts of the deliberations in Apple vs Samsung, the voice I keep hearing in my head is that of Philippe Kahn, the former CEO of Borland, one of the very first personal computing software companies, founded in 1981. I hear younger folks scratching their heads at that and saying, "Who?" Until 1992 Borland was one of the top three PC software companies, dominant in areas like programming languages and compilers; it faltered when it tried to compete with Lotus (long since swallowed by IBM) and Microsoft in office suites. In 1995 Kahn was ousted, going on to found three other companies.

What Kahn's voice is saying is, "Yes, we copied."

The occasion was an interview I did with him in July 1994 for the now-defunct magazine Personal Computer World, then a monthly magazine the size of a phone book. (Oh - phone book. Let's call it two 12.1 inch laptops, stacked, OK?). Among the subjects we rambled through was the lawsuit between Borland and Lotus, one of the first to cover the question of whether and when reverse-engineering infringes copyright. After six years of litigation, the case was finally decided by the Supreme Court in 1996.

The issue was spreadsheet software; Lotus 1-2-3 was the first killer application that made people want - need - to buy PCs. When Borland released its competing Quattro Pro, the software included a mode that copied Lotus's menu structure and a function to run Lotus's macros (this was when you could still record a macro with a few easy keyboard strokes; it was only later that writing macros began to require programming skills). In the district court, Lotus successfully argued that this was copyright infringement. In contrast, Borland, which eventually won the case on appeal, argued that the menu structure constituted a system. Kahn felt so strongly about pursuing the case that he called it a crusade and the company spent tens of millions of dollars on it.

"We don't believe anyone ever organized menus because they were expressive, or because the looked good," Kahn said at the time. "Print is next to Load because of functional reasons." Expression can be copyrighted; functionality instead is patented. Secondly, he argued, "In software, innovation is driven fundamentally by compatibility and interoperability." And so companies reverse-engineer: someone goes in a room by themselves and deconstructs the software or hardware and from that produces a functional specification. The product developers then see only that specification and from it create their own implementation. I suppose a writer's equivalent might be if someone read a lot of books (or Joseph Campbell's Hero With a Thousand Faces), broke down the stories to their essential elements, and then handed out pieces of paper that specified, "Entertaining and successful story in English about an apparently ordinary guy who finds out he's special and is drawn into adventures that make him uncomfortable but change his life." Depending on whether the writer you hand that to is Neil Gaiman, JRR Tolkien, or JK Rowling, you get a completely different finished product.

The value to the public of the Lotus versus Borland decision is that it enabled standards. Imagine if every piece of software had to implement a different keystroke to summon online help, for example (or pay a license fee to use F1). Or think of the many identical commands shared among Internet Explorer, Firefox, Opera, and Chrome: would users really benefit if each browser had to be completely different, or if Mosaic had been able to copyright the lot and lock out all other comers? This was the argument that As the EFF made in its amicus brief, that allowing the first developer of a new type of software to copyright its interface could lock up that technology and its market or 75 years or more.

In the mid 1990s, Apple - in a case that, as Harvard Business Review highlights, was very similar to this one - sued Microsoft over the "look and feel" of Windows. (That took a particular kind of hubris, given that everyone knows that Apple copied what it saw at Xerox to make that interface in the first place.) Like that case (and unlike Lotus versus Borland), Apple versus Samsung revolves around patents (functionality) rather than copyright (expression). But the fundamental questions in all three cases are the same: what is a unique innovation, what builds on prior art, and what is dictated by such externalities as human anatomy and psychology and the expectations we have developed over decades of phone and computer use?

What matters to Apple and Samsung is who gets to sell what in which markets. We, however, have a lot more important skin in this game: what is the best way to foster innovation and serve consumers? In Apple's presentation on Samsung's copying, Apple makes the same tired argument as the music industry: that if others can come along and copy its work it won't have any incentive to spend five years coming up with stuff like the iPad. Really? As Allworth notes, is that what they did after losing the Microsoft case? If Apple had won then and owned the entire desktop market, do you think they'd have ever had the incentive to develop the iPad? We have to hope that copying wins.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Posted by Wendy M. Grossman at 6:46 PM | Permalink | Comments (0) | TrackBacks (0)

This week Google announced it would downgrade in its search results sites with an exceptionally high number of valid copyright notices filed against them. As the EFF points out, the details of exactly how this will work are scarce and there is likely to be a big, big problem with false positives - that is, sites that are downgraded unfairly. You have only to look at the recent authorial pile-on that took down the legitimate ebook lending site LendInk for what can happen when someone gets hold of the wrong side of the copyright stick.

Unless we know how the inclusion of Google's copyright notice stats will work, how do we know what will be affected, how, and for how long? There is no transparency to let a site know what's happening to it, and no appeals process. Given the many abuses of the Digital Millennium Copyright Act, under which such copyright notices are issued, it's hard to know how fair such a system will be. Though, granted: the company could have simply done it and not told us. How would we know?

The timing of this move is interesting because it comes only a few months after Google began advocating for the notion that search engine results are, like newspaper editorial matter, a form of free speech under the First Amendment. The company went as far as to commission the legal scholar Eugene Volokh to write a white paper outlining the legal arguments. These basically revolve around the idea that a search algorithm is merely a new form of editorial judgment; Google returns search results in the order in which, in its opinion, they will be most helpful to users.

In response, Tim Wu, author of The Master Switch, argued in the New York Times that conceding the right of free speech to computerized decisions brings serious problems with it in the long run. Supposing, for example, that antitrust authorities want to regulate Google to ensure that it doesn't use its dominance in search to unfairly advantage its other online properties - YouTube, Google Books, Google Maps, and so on. If search results are free speech, that type of regulation becomes unconstitutional. On BoingBoing, Cory Doctorow responded that one should regulate the bad speech without denying it is speech. Earlier, in the Guardian Doctorow argued that Google's best gambit was making the argument about editorial integrity; publications make esthetic judgments, but Google famously loves to live by numbers.

This part of the argument is one that we're going to be seeing a lot of over the next few decades, because it boils down to this bit of Philip K. Dick territory: should machines programmed by humans have free speech rights? And if so, under what circumstances? If Google search results are free speech, is the same true of the output of credit-scoring algorithms or speed cameras? A magazine editor can, if asked, explain the reasoning process by which material was commissioned for, placed in, or rejected by her magazine; Google is notoriously secretive about the workings of its algorithms. We do not even know the criteria Google uses to judge the quality of its search results.

These are all questions we're going to have to answer as a society; and they are questions that may be answered very differently in countries without a First Amendment. My own first inclination is to require some kind of transparency in return: for every generation of separation between human and result, there must be an additional layer of explanation detailing how the system is supposed to work. The more people the results affect, the bigger the requirement for transparency. Something like that.

The more immediate question, of course, is, whether Google's move will have an impact on curbing unauthorized file-sharing. My guess is not that much; few file-sharers of my acquaintance use Google for the purpose of finding files to download.

Yet, in an otherwise sensible piece about the sentencing of Surfthechannel.com owner Anton Vickerman to four years in prison in the Guardian, Dan Sabbagh winds up praising Google's decision with a bunch of errors. First of all, he blames the music industry's problems on mistakes "such as failing to introduce copy protection". As the rest of us know, the music industry only finally dropped copy protection in 2009 - because consumers hate it. Arguably, copy protection delayed the adoption of legal, paid services by years. He also calls the decision to sell all-you-can-eat subscriptions to music back catalogues a mistake; on what grounds is not made clear.

Finally, he argues, "Had Google [relegated pirate sites' results] a decade ago, it might not have been worthwhile for Vickerman to set up his site at all."

Ten years ago? In 2002, Napster had been gone for less than a year. Gnutella and BitTorrent were measuring their age in months. iTunes was a year old. The Pirate Bay wouldn't exist for some months more. Google was two years away from going public. The mistake then wasn't downgrading sites oft accused of copyright infringement. The mistake then was not building legal, paid downloading services and getting them up and running as fast as possible.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Posted by Wendy M. Grossman at 11:19 PM | Permalink | Comments (0) | TrackBacks (0)

About a year and a half ago, I suddenly noticed that The Atlantic was posting a steady stream of interesting articles to Twitter (@theatlantic) and realized it was time to resubscribe. In fact, I would argue that the magazine is doing a lot of what Wired used to do in its digital coverage.

I don't, overall, regret it. But this month's issue is severely marred by this gem, from Elizabeth Wurtzel (the woman who got famous for taking Prozac and writing about it:

Of the Founders' genius ideas, few trump intellectual-property rights. At a time when Barbary pirates still concerned them, the Framers penned an intellectual-property clause--the world's first constitutional protection for copyrights and patents. In so doing, they spawned Hollywood, Silicon Valley, Motown, and so on. Today, we foolishly flirt with undoing that. In a future where all art is free (the future as pined for by Internet pirates and Creative Commons zealots), books, songs, and films would still get made. But with nobody paying for them, they'd be terrible. Only people who do lousy work do it for free.

Wurtzel's piece, entitled "Charge for Your Ideas", is part of a larger section on innovative ideas; other than hers, most of them are at least reasonable suggestions. I hate to make the editors happy by giving additional attention to something that should have been scrapped, but still: there are so many errors in that one short paragraph that need rebuttal.

Very, very few people - the filmmaker Nina Paley being the only one who springs rapidly to mind (do check out her fabulous film Sita Sings the Blues) - actually want to do away with copyright. And even most of those would like to be paid for their work. Paley turned Sita over to her audience to distribute freely because the deals she was being offered by distributors were so terrible and demanded so much lock-in that she thought she could do better. And she has, including fees for TV and theatrical showings and sales of DVDs and other items. More important from her perspective, she's built an audience for the film that it probably never would have found through traditional channels and that will support and appreciate her future work. As so many of us have said, obscurity is a bigger threat to most artists than loss of revenues.

Neither Creative Commons, nor its founder, Larry Lessig, nor the Open Rights Group, nor the Electronic Frontier Foundation, nor anyone else I can think of among digital rights campaigners has ever said that copyright should be abolished. The Pirate Party, probably the most radical among politically active groups pushing for copyright reform, wants to cut it way back, true - but not to abolish it. Even free software diehard Richard Stallman finds copyright useful as a way of blocking people from placing restrictions on free software.

Creative Commons' purpose in life is to make it easy for anyone who creates online content to attach to it a simple, easy-to-understand license that makes clear what rights to the content are reserved and which are available. One of those licenses blocks all uses without permission; others allow modification, redistribution, or commercial use, or require attribution.

Wurtzel fails to grasp that one may wish to reform something without wishing to terminate its existence. It was radical to campaign for copyright reform 20 years ago; today even the British government agrees copyright reform is needed (though we may all disagree about the extent and form that reform should take).

The Framers did not invent copyright. It was that pesky country they left, Britain, that enacted the first copyright law, the Statute of Anne, in 1710. We will, however, allow the "first constitutional" bit to stand. That still does not mean that the copyright status of Mickey Mouse should dictate national law.

As for pirates - the seafaring kind, not the evil downloader with broadband - they are far from obsolete. In fact, piracy is on the increase, and 1 major concern to both governments and shipping businesses. In May, the New York Times highlighted the growing problem of Somali pirates off the Horn of Africa.

Her final claim, that "Only people who do lousy work do it for free" was the one that got me enraged enough to write this. It's an insult to every volunteer, every generous podcaster, every veteran artist who blogs to teach others, every beginning artist finding their voice, every intern, and every person who has a passion for something and pursues it for love, whether they're an athlete in an unpopular sport or an amateur musician who plays only for his friends because he doesn't want his relationship with music to be damaged by making it his job. It is certainly true that much of what we imagine is "free" is paid for in other ways: bloggers whose blogs are part of the output their employer pays for, free/open source software writers who like the credit and stature their contributions give them, and so on. But imagine the miserable, miserly, misanthropic society we'd be living in if her claim were true? We'd need that Prozac.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Posted by Wendy M. Grossman at 4:55 PM | Permalink | Comments (0) | TrackBacks (0)

A lot of people have wondered for a long time whether the licensing conditions imposed by software publishers really would stand up in a court of law. And now we know: this week the Court of Justice of the European Union ruled (PDF) that people who buy downloaded software cannot be prohibited from selling on their used licenses.

The case: the German company UsedSoft advertises and sells, among others, licenses to Oracle software. These it acquires from Oracle customers who either are no longer using them or bought group licenses (sold in blocks of 25) and don't need all of the seats. The customers then download the software from Oracle's Web site. The license you buy from UsedSoft includes the remaining portion of the maintenance contract with Oracle, which marks its licenses "non-transferable". Oracle sued to stop this; the German regional court upheld the complaint. UsedSoft appealed to the German Federal Court of Justice, which referred the case to the EU.

With physical objects we take for granted the concept the US calls "first sale doctrine". That is, the person or company who manufactures the object only gets to sell it the first time. Thereafter, it's yours to do with what you like - trash it, recycle it, loan it out, sell it on to someone else, even burn it, all without owing anything to the person who made it and/or sold it to you. Software manufacturers, however, have emulated the publishers of books, music, film, and other media by unbundling the right to distribute the physical object and the right to make copies of the content embedded in it. When you buy a book, you gain the rights to that one copy of the book; but you don't gain the right to scan in the contents and give away or sell new copies of the contents. Or at least, if you do such a thing you would be wise to be Google Books rather than a 22-year-old college student with broadband and a personal Web site.

Usedsoft v Oracle revolves around the interactions of several pieces of EU law covering copyright and the distribution of goods, but ultimately the court's decision is clear enough. The purpose of the "exhaustion" of the manufacturer's distribution rights after the first sale was, in the ruling's argument to ensure that the original manufacturer should not be responsible for damage to the physical object that takes place between the first and second sales. Digitally distributed copies (especially from the original site) don't have this problem. Hence the ECJ's decision: first sale doctrine applies to software. The one caveat in all this: the original license-holder must delete or render unusable his original licensed copy of the software, even though it's difficult to prove he's done it.

The conditions of software licenses have never seemed fair. For one thing, back when software was primarily distributed in shrink-wrapped packages, you couldn't read the license to agree to it until you'd rendered the software unreturnable by opening the package. "Clickwrap" more or less ended that issue.

For another thing, the terms are contrary to the way humans normally think about the objects they acquire. In England, as the retired solicitor and fellow Open Rights Group advisory council member Nicholas Bohm explained to me for the Guardian in 2008, this has always seemed particularly dubious; precedents have established that valid terms and conditions are a contract set at the point of sale. In his example, a notice in a hotel room the wardrobe warning that you leave items there at your own risk has no legal weight because the contract of was made at the reception desk.

Finally, with physical objects we take it for granted that we have the right to demand satisfaction - repair, replacement, or refund - if the item we buy is flawed. Obviously, this right has its limits. We can reasonably expect a refund or replacement for a piece of clothing that rips badly or discolors on first washing (assuming we haven't done something dumb). And we can reasonably expect the manufacturer to pay for repairs to a new car that turns left when you steer right, unstoppably leaks fluids, or whose battery overheats to the point of bursting into flames. With software, we are pretty much stuck with the bugs and security holes, and software licenses pretty much universally disclaim liability for anything that happens when you install and use the software. This was the subject of a failed attempt in the around 2000, to modify the Uniform Commercial Code to both hold software publishers liable for defects - but in return allow them to impose any restrictions they wanted.

The impact of this week's judgment will be interesting. How will it affect music, ebooks, DRM, movies, games? That's a question for the lawyers and judges in future cases.

We can just say this: what an amazing week. First this ruling. Then the news that the Anti-Counterfeiting Trade Agreement was finally and truly rejected by the European Parliament. And a British man will play the Wimbledon final for the first time in 74 years. I don't know which of the three was less likely.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Posted by Wendy M. Grossman at 10:23 PM | Permalink | Comments (0) | TrackBacks (0)

A couple of weeks ago, while covering the tennis at Eastbourne for Daily Tennis, I learned that there is an ongoing battle between the International Tennis Writers Association and the sport at large over the practice of posting interview transcripts online.

What happens is this. Tournaments - the top few layers of the men's (ATP) and women's (WTA) tours - pay stenographers from ASAP Sports to attend players' press conferences and produce transcripts, which are distributed to the journalists on-site to help them produce accurate copy. It's a fast service; the PR folks come around the press room with hard copies of the transcript perhaps 10-15 minutes after the press session ends.

Who gives press conferences? At Eastbourne, like most smaller events, the top four seeds all are required to do media on the first day. After that, every day's match winners are required to oblige if the press asks for them; losers have more discretion but the top players generally understand that with their status and success level comes greater responsibility to publicize the game by showing up to answer questions. The stenographer at Eastbourne was a highly trained court reporter who travels the golf and tennis worlds taking down these questions and answers verbatim on a chord keyboard.

It turns out the transcripts particular battle has been going on for a while; witness this unhappy blogger's comment from June, 2011, after discovering that the French Open had bowed to pressure and stopped publishing interviews on its Web site. The same blogger had earlier posted ITWA's response to the complaints.

ITWA's arguments are fairly simple. It's a substantial investment to travel the tour (true; per year full-time you're talking at least $50,000). If interview transcripts are posted on the Web before journalists have had a chance to write their stories, it won't be worth spending that money because anyone can write stories based on them (true). Newspapers are in dire straits as it is (true). The questions journalists ask the players are informed by their experience and professional expertise; surely they should have the opportunity to exploit the responses they generate before everyone else does - all those pesky bloggers, for example, who read the transcripts and compare them to the journalists' reports and spot the elisions and changes of context.

Now, I don't believe for a second that there will be no coverage of tennis if the press stop traveling the tour. What there won't be is *independent* coverage. Except for the very biggest events, the players will be interviewed by the tours' PR people, and everything published about them will be as sanitized as their Wimbledon whites. Plus some local press, asking things like, "Talk about how much you like Eastbourne." The result will be like the TV stations now that provide their live match commentary by dropping a couple of people in a remote studio. No matter how knowledgeable those people are, their lack of intimate contact with the players and local conditions deadens their commentary and turns it into a recital of their pet peeves. (Note to Eurosport: any time a commentator says, "We talk so often about..." that commentator needs to shut up..)

This is the same argument they used to have about TV: if people can see the match on TV they won't bother to travel to it (and sometimes you do still find TV blackouts of local games). That hasn't really turned out to be true - TV has indeed changed this and every other sport, but by creating international stars and bringing in a lot of money in both payment for TV rights and sponsorship.

My response to the person who told me about this issue was that I didn't think basing your business model on artificial scarcity was going to work, the way the world is going. But this is not the only example of such restrictions; a number of US tournaments do not allow fans to carry professional-quality cameras onto the ground (to protect the interests of professional photographers).

What intrigued me about the argument - which at heart is merely a variant of the copyright wars - is that it pits the interests of fans and bloggers against those of the journalists who cover them. For the tournaments and tours themselves it's an inner conflict: they want both newspaper and magazine coverage *and* fan engagement. "Personal" contact with the players is a key part of that - and it is precisely what has diminished. Veteran tennis journalists will tell you that 20 years ago they got to know the players because they'd all be traveling the circuit together and staying in the same hotels. Today, the barriers are up; the players' lounge is carefully sited well away from the media centre.

Yet this little spat reflects the reality that the difference between writing a fan blog and working for a major media outlet is access. There is only so much time the stars in any profession - TV, sports, technology, business - can give to answering outsiders' questions before it eats into their real work. So this isn't really a story of artificial scarcity, though there's no lack of people who want to write about tennis. It's a story of real scarcity - but scarcity that one day soon is going to be differently distributed.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Posted by Wendy M. Grossman at 6:37 PM | Permalink | Comments (0) | TrackBacks (0)

A couple of weeks ago, while covering the tennis at Eastbourne for Daily Tennis, I learned that there is an ongoing battle between the International Tennis Writers Association and the sport at large over the practice of posting interview transcripts online.

What happens is this. Tournaments - the top few layers of the men's (ATP) and women's (WTA) tours - pay stenographers from ASAP Sports to attend players' press conferences and produce transcripts, which are distributed to the journalists on-site to help them produce accurate copy. It's a fast service; the PR folks come around the press room with hard copies of the transcript perhaps 10-15 minutes after the press session ends.

Who gives press conferences? At Eastbourne, like most smaller events, the top four seeds all are required to do media on the first day. After that, every day's match winners are required to oblige if the press asks for them; losers have more discretion but the top players generally understand that with their status and success level comes greater responsibility to publicize the game by showing up to answer questions. The stenographer at Eastbourne was a highly trained court reporter who travels the golf and tennis worlds taking down these questions and answers verbatim on a chord keyboard.

It turns out the transcripts particular battle has been going on for a while; witness this unhappy blogger's comment from June, 2011, after discovering that the French Open had bowed to pressure and stopped publishing interviews on its Web site. The same blogger had earlier posted ITWA's response to the complaints.

ITWA's arguments are fairly simple. It's a substantial investment to travel the tour (true; per year full-time you're talking at least $50,000). If interview transcripts are posted on the Web before journalists have had a chance to write their stories, it won't be worth spending that money because anyone can write stories based on them (true). Newspapers are in dire straits as it is (true). The questions journalists ask the players are informed by their experience and professional expertise; surely they should have the opportunity to exploit the responses they generate before everyone else does - all those pesky bloggers, for example, who read the transcripts and compare them to the journalists' reports and spot the elisions and changes of context.

Now, I don't believe for a second that there will be no coverage of tennis if the press stop traveling the tour. What there won't be is *independent* coverage. Except for the very biggest events, the players will be interviewed by the tours' PR people, and everything published about them will be as sanitized as their Wimbledon whites. Plus some local press, asking things like, "Talk about how much you like Eastbourne." The result will be like the TV stations now that provide their live match commentary by dropping a couple of people in a remote studio. No matter how knowledgeable those people are, their lack of intimate contact with the players and local conditions deadens their commentary and turns it into a recital of their pet peeves. (Note to Eurosport: any time a commentator says, "We talk so often about..." that commentator needs to shut up..)

This is the same argument they used to have about TV: if people can see the match on TV they won't bother to travel to it (and sometimes you do still find TV blackouts of local games). That hasn't really turned out to be true - TV has indeed changed this and every other sport, but by creating international stars and bringing in a lot of money in both payment for TV rights and sponsorship.

My response to the person who told me about this issue was that I didn't think basing your business model on artificial scarcity was going to work, the way the world is going. But this is not the only example of such restrictions; a number of US tournaments do not allow fans to carry professional-quality cameras onto the ground (to protect the interests of professional photographers).

What intrigued me about the argument - which at heart is merely a variant of the copyright wars - is that it pits the interests of fans and bloggers against those of the journalists who cover them. For the tournaments and tours themselves it's an inner conflict: they want both newspaper and magazine coverage *and* fan engagement. "Personal" contact with the players is a key part of that - and it is precisely what has diminished. Veteran tennis journalists will tell you that 20 years ago they got to know the players because they'd all be traveling the circuit together and staying in the same hotels. Today, the barriers are up; the players' lounge is carefully sited well away from the media centre.

Yet this little spat reflects the reality that the difference between writing a fan blog and working for a major media outlet is access. There is only so much time the stars in any profession - TV, sports, technology, business - can give to answering outsiders' questions before it eats into their real work. So this isn't really a story of artificial scarcity, though there's no lack of people who want to write about tennis. It's a story of real scarcity - but scarcity that one day soon is going to be differently distributed.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Posted by Wendy M. Grossman at 6:37 PM | Permalink | Comments (0) | TrackBacks (0)

What matters about a university degree? Is it the credential, the interaction with peers and professors, the chance to play a little while longer before turning adult, or the stuff you actually learn? Given how much a degree costs, these are pressing questions for the college-bound and their parents.

This is particularly true in the US, where today's tuition fees at Cornell University's College of Arts and Sciences, are 14 times what they were when I started there as a freshman in 1971. This week, CNBC highlighted the costs of liberal arts colleges such as Colorado's Pepperdine, where tuition, housing, and meals add up to $54,000 a year. Hah, said friends: it's $56,000 at Haverford, where their son is a sophomore.

These are crazy numbers even if you pursue a "sensible" degree, like engineering, mathematics, or a science. In fact, it's beginning to approach the level after which a top-class private university degree no longer makes the barest economic sense. A Reuters study announced this week found that the difference between a two-year "associate" degree and a four-year BA or BSc over the course of a 30-year career is $500,000 to $600,000 (enough to pay for your child's college degree, maybe). Over a career a college degree adds about $1 million over a high school diploma, depending on the major you pick and the field you go into. An accountant could argue that there's still some room for additional tuition increases - but then, even if that accountant has teenaged kids his earnings are likely well above average.

Anthony Carnevale, the director of the center that conducted this research, tells Reuters this is a commercialization of education. Yes, of course - but if college costs as much per child as the family home inevitably commercial considerations will apply even if you don't accept Paypal founder Peter Thiel's argument about a higher education bubble.

All this provides context for this week's announcement that Harvard and MIT are funding a $60 million initiative, EDx, to provide online courses for all and sundry. Given that Britain's relatively venerable Open University was set up in 1969 to bring university-level education to a wide range of non-traditional students, remote learning is nothing new. Still, EDx is one of a number of new online education initiatives.

Experimentation with using the Internet as a delivery medium for higher education began in the mid 1990s (TXT). The Open University augmented the ability for students to interact with each other by adding online conferencing to its media mix, and many other institutions began offering online degrees. Almost the only dissenting voice at the time was that of David F. Noble, a professor at Canada's York University. In a series of essays written from 1997 to 2001, Digital Diploma Mills he criticized the commercialization of higher education and the move toward online instruction. Coursework that formerly belonged to professors and teachers, he argued, would now become a product sold by the university itself; copyright ownership would be crucial. By 2001, he was writing about the failure of many of the online ventures to return the additional revenues their institutions had hoped for.

When I wrote about these various concerns in 1999 for Scientific American (TXT) reader email accused me of being an entitled elitist and gleefully threatened me with a wave of highly motivated, previously locked-out students who would sweep the world. The main thing I hoped I highlighted, however, was the comparatively high drop-out rate of online students. This is a pattern that has continued through to mid-2000s today with little change. This seems to me a significant problem for the industry - but explains why MIT and Harvard, like some other recent newcomers, are talking about charging for exams or completion certificates rather than the courses themselves. Education on the shareware model: certainly fairer for students hoping for career advancement and great for people who just want to learn from the best brands. (Not, thankfully, the future envisaged by one of the interviewees in those articles, who feared online education would be dominated by Microsoft and Disney).

In an economic context, the US's endemic credentialism means it's the certificate that has economic value, not necessarily the learning itself. But across the wider world, it's easy to imagine local authorities taking advantage of the courses that are available and setting their own exams and certification systems. For Harvard and MIT, the courses may also provide a way of spotting far-flung talent to scoop up and educate more traditionally.

Of course, economics are not the only reason to go to college: it may make other kinds of sense. Today's college-educated parents often want their kids to go to college for more complex reasons to do with quality of life, adaptability to a changing future, and the kind of person they would like their kids to be. In my own case, the education I had gave me choices and the confidence that I could learn anything if I needed to. That sort of motivation, sadly, is being priced out of the middle class. Soon it will be open only to the very talented and poor who qualify for scholarships, and the very wealthy who can afford the luxury. No wonder the market sees an opportunity.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Posted by Wendy M. Grossman at 6:14 PM | Permalink | Comments (0) | TrackBacks (0)

This interview was originally intended for a different publication; I only discovered recently that it hadn't run. Lessig and I spoke in late January, while the fate of the Research Works Act was still unknown (it's since been killed.

"This will be the grossest money election we've seen since Nixon," says the law professor Lawrence Lessig, looking ahead to the US Presidential election in November. "As John McCain said, this kind of spending level is certain to inspire a kind of scandal. What's needed is scandals."

It's not that Lessig wants electoral disaster; it's that scandals are what he thinks it might take to wake Americans up to the co-option of the country's political system. The key is the vast, escalating sums of money politicians need to stay in the game. In his latest book, Republic, Lost, Lessig charts this: in 1982 aggregate campaign spending for all House and Senate candidates was $343 million; in 2008 it was $1.8 billion. Another big bump upward is expected this year: the McCain quote he references was in response to the 2010 Supreme Court decision in Citizens United legalising Super-PACs. These can raise unlimited campaign funds as long as they have no official contact with the candidates. But as Lessig details in Republic, Lost, money-hungry politicians don't need things spelled out.

Anyone campaigning against the seemingly endless stream of anti-open Internet, pro-copyright-tightening policies and legislation in the US, EU, and UK - think the recent protests against the US's Stop Internet Piracy (SOPA) and Protect Intellectual Property (PIPA) Acts and the controversy over the Digital Economy Act and the just-signed Anti-Counterfeiting Trade Agreement (ACTA) treaty - has experienced the blinkered conviction among many politicians that there is only one point of view on these issues. Years of trying to teach them otherwise helped convince Lessig that it was vital to get at the root cause, at least in the US: the constant, relentless need to raise escalating sums of money to fund their election campaigns.

"The anti-open access bill is such a great example of the money story," he says, referring to the Research Works Act (H.R. 3699), which would bar government agencies from mandating that the results of publicly funded research be made accessible to the public. The target is the National Institutes of Health, which adopted such a policy in 2008; the backers are journal publishers.

"It was introduced by a Democrat from New York and a Republican from California and the single most important thing explaining what they're doing is the money. Forty percent of the contributions that Elsevier and its senior executives have made have gone to this one Democrat." There is also, he adds, "a lot to be done to document the way money is blocking community broadband projects".

Lessig, a constitutional scholar, came to public attention in 1998, when he briefly served as a special master in Microsoft's antitrust case. In 2000, he wrote the frequently cited book Code and Other Laws of Cyberspace, following up by founding Creative Commons to provide a simple way to licence work on the Internet. In 2002, he argued Eldred v. Ashcroft against copyright term extension in front of the Supreme Court, a loss that still haunts him. Several books later - The Future of Ideas, Free Culture, and Remix - in 2008, at the Emerging Technology conference, he changed course into his present direction, "coding against corruption". The discovery that he was writing a book about corruption led Harvard to invite him to run the Edmond J. Safra Foundation Center for Ethics, where he fosters RootStrikers, a network of activists.

Of the Harvard centre, he says, "It's a bigger project than just being focused on Congress. It's a pretty general frame for thinking about corruption and trying to think in many different contexts." Given the amount of energy and research, "I hope we will be able to demonstrate something useful for people trying to remedy it." And yet, as he admits, although corruption - and similar copyright policies - can be found everywhere his book and research are resolutely limited to the US: "I don't know enough about different political environments."

Lessig sees his own role as a purveyor of ideas rather than an activist.

"A division of labour is sensible," he says. "Others are better at organising and creating a movement." For similar reasons, despite a brief flirtation with the notion in early 2008, he rules out running for office.

"It's very hard to be a reformer with idealistic ideas about how the system should change while trying to be part of the system," he says. "You have to raise money to be part of the system and engage in the behaviour you're trying to attack."

Getting others - distinguished non-politicians - to run on a platform of campaign finance reform is one of four strategies he proposes for reclaiming the republic for the people.

"I've had a bunch of people contact me about becoming super-candidates, but I don't have the infrastructure to support them. We're talking about how to build that infrastructure." Lessig is about to publish a short book mapping out strategy; later this year he will update incorporating contributions made on a related wiki.

The failure of Obama, a colleague at the University of Illinois at Chicago in the mid-1990s, to fulfil his campaign promises in this area is a significant disappointment.

"I thought he had a chance to correct it and the fact that he seemed not to pay attention to it at all made me despair," he says.

Discussion is also growing around the most radical of the four proposals, a constitutional convention under Article V to force through an amendment; to make it happen 34 state legislatures would have to apply.

"The hard problem is how you motivate a political movement that could actually be strong enough to respond to this corruption," he says. "I'm doing everything I can to try to do that. We'll see if I can succeed. That's the objective."

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this seriesand one of other interviews.

Posted by Wendy M. Grossman at 12:47 AM | Permalink | Comments (0) | TrackBacks (0)

The coming months could see significant boosts to freedom of expression in the UK. Last night, the Libel Reform Campaign launched its report on alternatives to libel litigation at an event filled with hope that the Defamation Bill will form part of the Queen's speech in May. A day or two earlier, Consumer Focus hosted an event at the House of Commons to discuss responses to the consultation on copyright following the Hargreaves Review, which are due March 21. Dare we hope that a year or two from now the twin chilling towers of libel law and copyright might be a little shorter?

It's actually a good sign, said the former judge Sir Stephen Sedley last night, that the draft defamation bill doesn't contain everything reform campaigners want: all bills change considerably in the process of Parliamentary scrutiny and passage. There are some other favorable signs: the defamation bill is not locked to any particular party. Instead, there's something of a consensus that libel law needs to be reformed for the 21st century - after all, the multiple publication rule that causes Internet users so much trouble was created by the 1849 court case Duke of Bunswick v Harmer, in which the Duke of Brunswick managed to get the 17-year limit overridden on the basis that his manservant, sent from Paris to London, was able to buy copies of the magazine he believed had defamed him. These new purchases, he argued successfully, constituted a new publication of the libel. Well, you know the Internet: nothing ever really completely dies, and so that law, applied today, means liability in perpetuity. Ain't new technology grand?

The same is, of course, true in spades of copyright law, even though it's been updated much more recently; the Copyright, Designs, and Patents Act only dates to 1988 (and was then a revision of laws as recent as 1956). At the Consumer Focus event, Saskia Walzel argued that it's appropriate to expect to reform copyright law every ten to 15 years, but that the law should be based on principles, not technologies. The clauses that allow consumers to record TV programs on video recorders, for example, did not have to be updated for PVRs.

The two have something else in common: both are being brought into disrepute by the Internet because both were formulated in a time when publishers were relatively few in number and relatively powerful and needed to be kept in check. Libel law was intended to curb their power to damage the reputations of individuals with little ability to fight back. Copyright law kept them from stealing artists' and creators' work - and each other's.

Sedley's comment last night about libel reform could, with a little adaptation, apply equally well to copyright: "The law has to apply to both the wealthy bully and the small individual needing redress from a large media organization." Sedley went on to argue that it is in the procedures that the playing field can be leveled; hence the recommendation for options to speed up dispute resolutions and lower costs.

Of course, publishers are not what they were. Even as recently as 1988 the landscape of rightsholders was much more diverse. Many more independent record labels jostled for market share with somewhat more larger ones; scores of independent book publishers and bookshops were thriving; and photographers, probably the creators being damaged the most in the present situation, still relied for their livelihood on the services of a large ecology of small agencies who understood them and cared about their work. Compare that to now, when cross-media ownership is the order of the day, and we may soon be down to just two giant music companies.

It is for this reason that I have long argued (as Walzel also said on Tuesday) that if you really want to help artists and other creators, they will be better served by improving contract law so they can't be bullied into unfair terms than by tightening and aggressively enforcing copyright law.

Libel law can't be so easily mitigated, but in both cases we can greatly improve matters by allowing exceptions that serve the public interest. In the case of libel law, that means scientific criticism: if someone claims abilities that are contrary to our best understanding of science, critique on that basis should be allowed to proceed. Similarly, there is clearly no economic loss to rightsholders from allowing exceptions for parody, disabled access, and archiving.

It was Lord McNally, the Minister of Justice who called this moment in the work on libel law reform the end of the beginning, reminding those present that now is to use whatever influence campaigners have with Parliamentarians to get through the changes that are needed. He probably wouldn't think of it this way, but his comment reminded me of the 1970s and 1980s tennis champion Chris Evert, who commented that many (lesser) players focused on reaching the finals of tournaments and forgot, once there, that there was a step further to go to win the title.

So enjoy that celebratory drink - and then get back to work!

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Posted by Wendy M. Grossman at 7:12 PM | Permalink | Comments (0) | TrackBacks (0)

"You cannot have democracy without a public domain," says Tracy Mitrano. She clarifies: "Where the issues that matter are part of what people think about every day and we express them to our representatives in a representative democracy."

As commentators, campaigners, and observers keep pointing out, copyright policy hasn't been like that. A key part of the street protests over the Anti-Counterfeiting Trade Agreement (ACTA) was the secrecy of the negotiations over its contents. Similarly, even if there had been widespread content with the provisions of the Digital Economy Act, the way it was passed would be disturbing: on the nod, revised at the last minute with no debate, in the wash-up before the election with many MPs already on the road to their constituencies. If these are such good policies, why do they need to be agreed and passed in such anti-democratic ways?

My conversation with Mitrano is partly an accident of geography: when you're in Ithaca, NY, and interested in the Internet and copyright she's the person you visit. Mitrano is the director of IT policy at Cornell University, one of the first academic institutions where the Internet took hold. As such, she has been on the front lines of the copyright battles of the last 15 years, trying to balance academic values and student privacy against the demands of copyright enforcement, much like a testbed for the wider population. She also convenes an annual computer policy and law conference on Internet culture in the academy.

"Higher education was the canary in the coal mine for the enforcement of copyright and intellectual property on the Internet," she says.

We don't generally think of universities as ISPs, but, particularly in the US where so many students live in dorms, that is one of their functions: to provide high-speed, campus-wide access for tens of thousands of users of all types, from students to staff to researchers, plus serving hundreds of thousands of alumni wanting those prestigious-sounding email addresses. In 2004, Cornell was one of the leaders of discussions with the music industry regarding student subscription fees.

"To have picked on us was to pick on an easy target in the sense that we're fish in a barrel given our dependence on federal funding," she says, "and we're an easily caricatured representation of the problem because of the demographic of students, who care about culture, don't have a lot of money, are interested in new technology, and it all seemed to be flowing to them so easily. And the last reason: we were a patsy, because given that we care about education and we're not competing with the content industry for profits or market share, we wanted to help."

The result: "The content industry paid for and got, through lobbying, legislation that places greater demands on higher education ISPs than on commercial ISPs." The relevant legislation is the Higher Education Act 2008. "They wanted filtering devices on all our networks," Mitrano says, "completely antithetical to all our values." Still, the industry got a clause whose language is very like what's being pushed for now in the UK, the EU, and, in fact, everywhere else.

"After they got what they wanted there, they started in Europe on "three strikes"," she says. "Not they've come back with SOPA, ACTA, and PIPA."

Higher education in the US is still paying the price for that early focus.

"Even under the least strict test of the equal protection clause, the rational basis test, there is no rational basis for why higher education as an ISP has to do anything more or less than a commercial ISP in terms of being a virtual agent of enforcement of the content industry. Their numbers prove to be wrong in every field - how much they're losing, how many alleged offenders, what percentage of offenders the students are alleged to be in the whole world in copyright infringement."

Every mid-career lawyer with an interest in Internet policy tells the story of how tiny and arcane a field intellectual property was 20 years ago. Mitrano's version is that of the 15 students in her intellectual property class, most were engineers wishing to learn about patents; two were English students who wanted to know why J.D. Salinger's biography had been pulled before publication. By the time she finished law school in 1995, the Internet had been opened up to commercial traffic, though few still saw the significance.

"Copyright, at that moment, went from backwater area to front and center in US politics, but you couldn't prove that," she says. "The day it became apparent to most people in American society was the day last month when Wikipedia went black."

Unusually for someone in the US, Mitrano thinks loosening the US's grip on Internet governance is a good idea.

"I'm not really willing to give up US control entirely," she admits, "it's in the US's interests to be thinking about Internet governance much more internationally and much more collaboratively than we do today. And there's nothing more representative than issues around copyright and its enforcement globally."

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Posted by Wendy M. Grossman at 8:32 PM | Permalink | Comments (0) | TrackBacks (0)

You could have been excused for thinking you'd woken up in a foreign country on Wednesday, when the news broke about a new and deliberately terrifying notice replacing the front page of a previously little-known music site, RnBXclusive.

ZDNet has a nice screenshot of it; it's gone from the RnBXclusive site now, replaced by a more modest advisory.

It will be a while before the whole story is pieced together - and tested in court - but the gist so far seems to be that the takedown of this particular music site was under the fraud laws rather than the copyright laws. As far as I'm aware - and I don't say this often - this is the first time in the history of the Net that the owner of a music site has been arrested on suspicion of conspiracy to defraud (instead of copyright infringement ). It seems to me this is a marked escalation of the copyright wars.

Bearing in mind that at this stage these are only allegations, it's still possible to do some thinking about the principles involved.

The site is accused of making available, without the permission of the artists or recording companies, pre-release versions of new music. I have argued for years that file-sharing is not the economic enemy of the music industry and that the proper answer to it is legal, fast, reliable download services. (And there is increasing evidence bearing this out.) But material that has not yet been officially released is a different matter.

The notion that artists and creators should control the first publication of new material is a long-held principle and intuitively correct (unlike much else in copyright law). This was the stated purpose of copyright: to grant artists and creators a period of exclusivity in which to exploit their ideas. Absolutely fundamental to that is time in which to complete those ideas and shape them into their final form. So if the site was in fact distributing unreleased music as claimed, especially if, as is also alleged, the site's copies of that music were acquired by illegally hacking into servers, no one is going to defend either the site or its owner.

That said, I still think artists are missing a good bet here. The kind of rabid fan who can't wait for the official release of new music is exactly the kind of rabid fan who would be interested in subscribing to a feed from the studio while that music is being recorded. They would also, as a friend commented a few years ago, be willing to subscribe to a live feed from the musicians' rehearsal studio. Imagine, for example, being able to listen to great guitarists practice. How do they learn to play with such confidence and authority? What do they find hard? How long does it take to work out and learn something like Dave van Ronk's rendition, on guitar, of Scott Joplin rags with the original piano scoring intact?

I know why this doesn't happen: an artist learning a piece is like a dog with a wound (or maybe a bone): you want to go off in a forest by yourself until it's fixed. (Plus, it drives everyone around you mad.) The whole point of practicing is that it isn't performance. But musicians aren't magicians, and I find it hard to believe that showing the nuts and bolts of how the trick of playing music is worked would ruin the effect. For other types of artists - well, writers with works in progress really don't do much worth watching, but sculptors and painters surely do, as do dance troupes and theatrical companies.

However, none of that excuses the site if the allegations are true: artists and creators control the first release.

But also clearly wrong was the notice SOCA placed on the site, which displayed visitors' IP address, warned that downloading music from the site was a crime bearing a maximum penaltde y of up to ten years in prison, and claimed that SOCA has the capacity to monitor and investigate you with no mention of due process or court orders. Copyright infringement is a civil offense, not a criminal one; fraud is a criminal offense, but it's hard to see how the claim that downloading music is part of a conspiracy to commit fraud could be made to stick. (A day later, SOCA replaced the notice.) Someone browsing to The Pirate Bay and clicking on a magnet link is not conspiring to steal TV shows any more than someone buying a plane ticket is conspiring to destroy the ozone layer. That millions of people do both things is a contributing factor to the existence of the site and the airline, but if you accuse millions of people the term "organized crime" loses all meaning.

This was a bad, bad blunder on the part of authorities wishing to eliminate file-sharing. Today's unworkable laws against file-sharing are bringing the law into contempt already. Trying to scare people by misrepresenting what the law actually says at the behest of a single industry simply exacerbates the effect. First they're scared, then they're mad, and then they ignore you. Not a winning strategy - for anyone.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Posted by Wendy M. Grossman at 8:47 PM | Permalink | Comments (0) | TrackBacks (0)

You have to think that 2012 so far has been orchestrated by someone with a truly strange sense of humor. To wit:

- EMI Records is suing the Irish government for failing to pass laws to block "pirate sites". The way PC Pro tells it, Ireland ought to have implemented site blocking laws to harmonize with European law and one of its own judges has agreed it failed to do so. I'm not surprised, personally: Ireland has a lot of other things on its mind, like the collapse of the Catholic church that dominated Irish politics, education, and health for so long, and the economic situation post-tech boom.

- The US Congress and Senate are, respectively, about to vote on SOPA (Stop Online Piracy Act) and PIPA (Protect Intellectual Property Act), laws to give the US site blocking, search engine de-listing, and other goodies. (Who names these things? SOPA and PIPA sound like they escaped from Anna Russell's La Cantatrice Squelante.) Senator Ron Wyden (D-OR) and Representative Darrell Issa (R-CA) have proposed an alternative, the OPEN Act (PDF), which aims to treat copyright violations as a trade issue rather than a criminal one.

- Issa and Representative Carolyn Maloney (D-NY) have introduced the Research Works Act to give science journal publishers exclusive rights over the taxpayer-funded research they publish. The primary beneficiary would be Elsevier (which also publishes Infosecurity, which I write for), whose campaign contributions have been funding Maloney.

- Google is mixing Google+ with its search engine results because, see, when you're looking up impetigo, as previously noted, what you really want is to know which of your friends has it.

- Privacy International has accused Facebook of destroying someone's life through its automated targeted advertising, an accusation the company disputes.

- And finally, a British judge has ruled that a Sheffield student Richard O'Dwyer can be extradited to the US to face charges of copyright infringement; he owned the now-removed TVShack.net site, which hosted links to unauthorized copies of US movies and TV shows.

So many net.wars, so little time...

The eek!-Facebook-knows-I'm-gay story seems overblown. I'm sure the situation is utterly horrible for the young man in question, whom PI's now-removed blog posting said was instantly banished from his parents' home, but I still would like to observe that the ads were placed on his page by a robot (one without the Asimov Three Laws programmed into it). On this occasion the robot apparently guessed right but that's not always true. Remember 2002, when several TiVos thought their owners were gay? These are emotive issues and, as Forbes concludes in the article linked above, the more targeting gets good and online behavioral advertising spreads the more you have to think about what someone looking over your shoulder will see. Perhaps that's a new-economy job for 2012: the digital image consultant who knows how to game the system so the ads appearing on your personalized pages will send the "right" messages about you. Except...

It was predicted - I forget by whom - that search generally would need to incorporate social networking to make its search results more "relevant" and "personal". I can see the appeal if I'm looking for a movie to see, a book to read, or a place to travel to: why wouldn't I want to see first the recommendations of my friends, whom I trust and who likely have tastes similar to mine? But if I'm looking to understand what campaigners are saying about American hate radio (PDF), I'm more interested in the National Hispanic Media Coalition's new report than in collectively condemning Rush Limbaugh. Google Plus Search makes sense in terms of competing with Facebook and Twitter, but mix it up with the story above, and you have a bigger mess in sight. By their search results shall ye know their innermost secrets.

Besides proving Larry Lessig's point about the way campaign funding destroys our trust in our elected representatives, the Research Works Act is a terrible violation of principle. It's taken years of campaigning - by the Guardian as well as individuals pushing open standards - to get the UK government to open up its data coffers. And just at the moment when they finally do it, the US, which until now has been the model of taxpayers-paid-for-it-they-own-the-data, is thinking about going all protectionist and proprietary?

The copyright wars were always kind of ridiculous (and, says Cory Doctorow, only an opening skirmish), but there's something that's just wrong - lopsided, disproportionate, arrogant, take your pick - about a company suing a national government over it. Similarly, there's something that seems disproportionate about extraditing a British student for running a Web site on the basis that it was registered in .net, which is controlled by a US-based registry (and has now been removed from same). Granted, I'm no expert on extradition law, and must wait for either Lilian Edwards or David Allen Green to explain the details of the 2003 law. That law was and remains controversial, that much I know.

And this is only the second week. Happy new year, indeed.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

Posted by Wendy M. Grossman at 10:40 PM | Permalink | Comments (0) | TrackBacks (0)

One of the things about living in a foreign country is this: every so often the actual England I live in collides unexpectedly with the fictional England I grew up with. Fictional England had small, friendly villages with murders in them. It had lowering, thick fogs and grim, fantastical crimes solvable by observation and thought. It had mathematical puzzles before breakfast in a chess game. The England I live in has Sir Arthur Conan Doyle's vehement support for spiritualism, traffic jams, overcrowding, and four million people who read The Sun.

This week, at the GikIII Workshop, in a break between Internet futures, I wandered out onto a quadrangle of grass so brilliantly and perfectly green that it could have been an animated background in a virtual world. Overlooking it were beautiful, stolid, very old buildings. It had a sign: Balliol College. I was standing on the quad where, "One never failed to find Wimsey of Balliol planted in the center of the quad and laying down the law with exquisite insolence to somebody." I know now that many real people came out of Balliol (three kings, three British prime ministers, Aldous Huxley, Robertson Davies, Richard Dawkins, and Graham Greene) and that those old buildings date to 1263. Impressive. But much more startling to be standing in a place I first read about at 12 in a Dorothy Sayers novel. It's as if I spent my teenaged years fighting alongside Angel avatars and then met David Boreanaz.

Organised jointly by Ian Brown at the Oxford Internet Institute and the University of Edinburgh's Script-ed folks, GikIII (prounounced "geeky") is a small, quirky gathering that studies serious issues by approaching them with a screw loose. For example: could we control intelligent agents with the legal structure the Ancient Romans used for slaves (Andrew Katz)? How sentient is a robot sex toy? Should it be legal to marry one? And if my sexbot rapes someone, are we talking lawsuit, deactivation, or prison sentence (Fernando Barrio)? Are RoadRunner cartoons all patent applications for devices thought up by Wile E. Coyote (Caroline Wilson)? Why is The Hound of the Baskervilles a metaphor for cloud computing (Miranda Mowbray)?

It's one of the characteristics of modern life that although questions like these sound as practically irrelevant as "how many angels, infinitely large, can fit on the head of a pin, infinitely small?", which may (or may not) have been debated here seven and a half centuries ago, they matter. Understanding the issues they raise matters in trying to prepare for the net.wars of the future.

In fact, Sherlock Holmes's pursuit of the beast is metaphorical; Mowbray was pointing out the miasma of legal issues for cloud computing. So far, two very different legal directions seem likely as models: the increasingly restrictive EULAs common to the software industry, and the service-level agreements common to network outsourcing. What happens if the cloud computing company you buy from doesn't pay its subcontractors and your data gets locked up in a legal battle between them? The terms and conditions in effect for Salesforce.com warn that the service has 30 days to hand back your data if you terminate, a long time in business. Mowbray suggests that the most likely outcome is EULAs for the masses and SLAs at greater expense for those willing to pay for them.

On social networks, of course, there are only EULAs, and the question is whether interoperability is a good thing or not. If the data people put on social networks ("shouldn't there be a separate disability category for stupid people?" someone asked) can be easily transferred from service to service, won't that make malicious gossip even more global and permanent? A lot of the issues Judith Rauhofer raised in discussing the impact of global gossip are not new to Facebook: we have a generation of 35-year-olds coping with the globally searchable history of their youthful indiscretions on Usenet. (And WELL users saw the newly appointed CEO of a large tech company delete every posting he made in his younger, more drug-addled 1980s.) The most likely solution to that particular problem is time. People arrested as protesters and marijuana smokers in the 1960s can be bank presidents now; in a few years the work force will be full of people with Facebook/MySpace/Bebo misdeeds and no one will care except as something laugh at drunkenly late out in the pub.

But what Lilian Edwards wants to know is this: if we have or can gradually create the technology to make "every ad a wanted ad" - well, why not? Should we stop it? Online marketing is at £2.5 billion a year according to Ofcom, and a quarter of the UK's children spend 22 hours a week playing computer games, where there is no regulation of industry ads and where Web 2.0 is funded entirely by advertising. When TV and the Internet roll together, when in-game is in-TV and your social network merges with megamedia, and MTV is fully immersive, every detail can be personalized product placement. If I grew up five years from now, my fictional Balliol might feature Angel driving across the quad in a Nissan Prairie past a billboard advertising airline tickets.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 3:22 PM | Permalink | Comments (0) | TrackBacks (0)

It was quiet, too quiet. For so long it's just been Firefox/Mozilla/Netscape, Internet Explorer, and sometimes Opera that it seemed like that was how it was always going to be. In fact, things were so quiet that it seemed vaguely surprising that Firefox had released a major update and even long-stagnant Internet Explorer has version 8 out in beta. So along comes Chrome to shake things up.

The last time there were as many as four browsers to choose among, road-testing a Web browser didn't require much technical knowledge. You loaded the thing up, pointed it at some pages, and if you liked the interface and nothing seemed hideously broken, that was it.

This time round, things are rather different. To really review Chrome you need to know your AJAX from your JavaScript. You need to be able to test for security holes, and then discover more security vulnerabilities. And the consequences when these things are wrong are so much greater now.

For various reasons, Chrome probably isn't for me, quite aside from its copy-and-paste EULA oops. Yes, it's blazingly fast and I appreciate that because it separates each tab or window into its own process it crashes more gracefully than its competitors. But the switching cost lies less in those characteristics than in the amount of mental retraining it takes to adapt your way of working to new quirks. And, admittedly based on very short acquaintance, Chrome isn't worth it now that I've reformatted Firefox 3's address bar into a semblance of the one in Firefox 2. Perhaps when Chrome is a little older and has replaced a few more of Firefox's most useful add-ons (or when I eventually discover that Chrome's design means it doesn't need them).

Chrome does not do for browsers what Google did for search engines. In 1998, Google's ultra-clean, quick-loading front page and search results quickly saw off competing, ultra-cluttered, wait-for-it portals like Altavista because it was such a vast improvement. (Ironically, Google now has all those features and more, but it's smart enough to keep them off the front page.)

Chrome does some cool things, of course, as anything coming out of Google always has. But its biggest innovation seems to be more completely merging local and global search, a direction in which Firefox 3 is also moving, although with fewer unfortunate consequences. And, as against that, despite the "incognito" mode (similar to IE8) there is the issue of what data goes back to Google for its coffers.

It would be nice to think that Chrome might herald a new round of browser innovation and that we might start seeing browsers that answer different needs than are currently catered for. For example: as a researcher I'd like a browser to pay better attention to archiving issues: a button to push to store pages with meaningful metadata as well as date and time, the URL the material was retrieved from, whether it's been updated since and if so how, and so on. There are a few offline browsers that sort of do this kind of thing, but patchily.

The other big question hovering over Chrome is standards: Chrome is possible because the World Wide Web Consortium has done its work well. Standards and the existence of several competing browsers with significant market share has prevented any one company from seizing control and turning the Web into the kind of proprietary system Tim Berners-Lee resisted from the beginning. Chrome will be judged on how well it renders third-party Web pages, but Google can certainly tailor its many free services to work best with Chrome - not so different a proposition from the way Microsoft has controlled the desktop.

Because: the big thing Chrome does is bring Google out of the shadows as a competitor to Microsoft. In 1995, Business Week ran a cover story predicting that Java (write once, run on anything) and the Web (a unified interface) could "rewrite the rules of the software industry". Most of the predictions in that article have not really come true - yet - in the 13 years since it was published; or if they have it's only in modest ways. Windows is still the dominant operating system, and Larry Ellison's thin clients never made a dent in the market. The other big half of the challenge to Microsoft, GNU/Linux and the open-source movement, was still too small and unfinished.

Google is now in a position to deliver on those ideas. Not only are the enabling technologies in place but it's now a big enough company with reliable enough servers to make software as a Net service dependable. You can collaboratively process your words using Google Docs, coordinate your schedules with Google Calendar, and phone across the Net with Google Talk. I don't for one minute think this is the death of Microsoft or that desktop computing is going to vanish from the Earth. For one thing, despite the best-laid cables and best-deployed radios of telcos and men, we are still a long way off of continuous online connectivity. But the battle between the two different paradigms of computing - desktop and cloud - is now very clearly ready for prime time.

Wendy M. Grossman's Web site hasn extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 4:50 PM | Permalink | Comments (0) | TrackBacks (0)

The news that Comcast is openly imposing a monthly 250Gb bandwidth cap for its broadband subscribers sounds, as many have noted, more generous than it is. Comcast doesn't have to lower the cap progressively for customers to feel the crunch; the amount of data everyone shifts around grows inexorably year by year. Just as the 64K 640K Bill Gates denies he ever said was enough for anybodyis today barely an email, soon 250Gb will be peanuts. Comcast's move will more likely pull the market away from all-you-can-eat to arguably logical banded charging.

We should keep that in mind as the European Parliament goes to debate the telecoms package on Tuesday, with a first reading plenary vote scheduled for the Strasbourg session on September 22-25.

Many of the consumer provisions make sense, such as demanding that all users have free access to the EU-wide and national emergency numbers, that there be at least one directory enquiries service, and that there be "adequate" geographical coverage of public payphones. Those surrounded by yapping mobile phones everywhere they go may wonder why we still need payphones, but the day your battery dies, your phone gets lost, stolen, or broken, or you land in a foreign country and discover that for some reason your phone doesn't work, you'll be grateful, trust me.

The other consumer provision everyone has to like is the one that requires greater transparency about pricing. What's unusual about the Comcast announcement is that it's open and straightforward; in the UK so far, both ISPs and "all-you-can-eat" music download services have a history of being coy about exactly what level of use is enough to get you throttled or banned. In credit cards, American Express's "no preset spending limit" is valuable precisely because it gives the consumer greater flexibility than the credit limits imposed by Visa and Mastercard; in online services the flexibility is all on the side of the supplier. Most people would be willing to stay on the south side of a bandwidth cap if only they knew what it was. One must surmise that service providers don't like to disclose the cap because they think knowing what it is will encourage light users to consume more, upsetting the usage models their business plans are based on.

The more contentious areas are, of course, those that relate to copyright infringement. Navigating through the haze of proposed amendments and opinions doesn't really establish exactly what's likely to happen. But in recent months there have been discussions of everything from notice-and-takedown rules to three-strikes-and-you're-offline. Many of these defy the basic principles on which European and American justice is supposed to rest: due process and proportionate punishment. Take, for example, the idea of tossing someone offline and putting them on a blacklist so they can't get an account with another ISP. That fails both principles: either an unrelated rightsholder of the original ISP or both would be acting as a kangaroo court, and being thrown offline would not only disconnect the user from illegal online activities but in many cases make it impossible for that person's whole household to do homework, pay bills, and interact with both government and social circles.

That punishment would be wholly disproportioniate even if you could guarantee there would be no mistakes and all illegal activities would be punished equally. But in fact no one can guarantee that. An ISP cannot scan traffic and automatically identify copyright infringement; and with millions of people engaging in P2P file-sharing (seemingly the target of most of this legislation) any spotting of illegal activity has to be automated. In addition, over time, as legal downloads (Joss Whedon's dr horrible and his sing-a-long blog managed 2.2 million downloads from iTunes in the first week besides crashing its streaming server) outstrip illegal ones, simply being a heavy user won't indicate anything about whether the user's activity is legal or not.

Part of the difficulty is finding the correct analogy. Is the crime of someone who downloads a torrent of The Big Bang Theory and leaves the downloaded copy seeding afterwards the same as that of someone who sets up a factory and puts out millions of counterfeit DVD copies? Is downloading a copy of the series the same as stealing the DVDs from a shop? I would say no: counterfeit DVDs unarguably cost the industry sales in a way that downloading does not, or not necessarily. Similarly, stealing a DVD from a shop has a clearly identifiable victim (the shop itself) in a way that downloading a copy does not. But in both those cases the penalties are generally applied by courts operating under democratically decided procedures. That is clearly not the case when ISPs act on complaints by rightsholders with no penalties imposed upon them for false accusations. A more appropriate punishment would be a fine, and even that should be limited to cases of clear damage, such as the unauthorized release of material that has yet to be commercially launched.

For all these reasons, ISPs should be wary of signing onto the rightsholders' bandwagon when their concern is user demand for bandwidth. We would, I imagine, see very different responses from them if, as I think ought to happen, anti-trust law were invoked to force the separation of content owners from bandwidth providers.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 2:39 PM | Permalink | Comments (0) | TrackBacks (0)

A couple of years ago I did an interview with Ed Iacobucci CEO and founder of Dayjet, a new kind of airline. Dayjet has no published timetable; instead, prospective passengers (mostly company CEOs and other business types with little time to spare for driving between ill-served smaller cities in the American south) specify their departure point, their destination, and a window of time for Dayjet to get them there. Dayjet responds with a price based on the number of full seats in the plane. The airline, said Iacobucci, is software expressed as a service. And - and this is the key point here - constructing an intellectual property business in such a way meant he didn't have to worry about copying.

Cut to: the current battles over P2P. Danny O'Brien observed recently that with terabyte disk drives becoming luggable and the back catalogue of recorded music being "only" 4Tb, in the medium term the big threat to the music companies isn't P2P but file-swapping between directly connected hard drives, no Internet needed; no detection possible.

Cut to: the amazing career of Alan Ayckbourn and the Stephen Joseph Theatre in Scarborough, North Yorkshire.

Ayckbourn is often thought of as Britain's answer to Neil Simon, but the comparison is unfair to Ayckbourn. Simon is of course a highly skilled playwright and jokesmith, but his characters are in nothing like the despair that Ayckbourn's are, and he has none of the stagecraft. Partly, that may be because Ayckbourn has his own theatre to play with. Since 1959, when his first play was produced, Ayckbourn has written 71 plays (and still counting), and just about all of them were guaranteed production in advance at the Stephen Joseph Theatre, where Ayckbourn has been artistic director since 1974.

Many of them play with space and time. In How the Other Half Loves two dinners share stage space and two characters though they occur on different nights in different living rooms. In Communicating Doors characters shift through the same hotel room over four decades. In Taking Steps three stories of a house are squashed flat into a single stage set. He also has several sets of complementary plays, such as The Norman Conquests, a trilogy which sets each of the plays - the story of a weekend house party - in a different room.

It was in 1985, during a period of obsession with the plays Intimate Exchanges that I decided that at some point I really had to see Alan Ayckbourn's work in its native habitat. Partly, this was due to the marvellous skill with which Lavinia Bertram and Robin Herford shifted among four roles each. Intimate Exchanges is scored for just two actors, and the plays' conceit is that they chronicle, via a series of two-person scenes, 16 variant consequences of a series of escalating choices. Bertram and Herford were the original cast, imported into London from Scarborough. So my thought was: if this is the kind of acting they have up there, one must go. (As bizarre as it seems to go from London to anywhere to go to the theater.)

This year, reading that Ayckbourn is about to retire as artistic director, it seemed like now or never. It's worth the trip: although many of Ayckbourn's plays work perfectly well on a traditional proscenium stage and he's had a lot of success in London's West End and on Broadway (and in fact around the world; he's the most performed playwright who isn't Shakespeare), the theatre-in-the-round adds intimacy. That's particularly true in this summer's trio of ghost plays: Haunting Julia (1994, a story of the aftermath of a suicide)), Snake in the Grass (2002, a story of inheritance and blackmail), and Life and Beth (2008, a story of survival and widowhood). In all these stories, the closer you can get to the characters the better, and the compared to the proscenium stage SJT's round theatre is the equivalent of the cinematic close-up.

That intimacy may be a partial explanation of why so little of Ayckbourn's work has been adapted to movies - and when it has, the results have been so disappointing. Generally, they're either shallow caricatures (such as A Chorus of Disapproval) or wistful and humorless rather than robust and funny (like Alain Resnais' attempts, including Intimate Exchanges). There have been some good TV productions (The Norman Conquests, Season's Greetings (set in a hall surrounded by bits of a living room and dining room)), but these are mysteriously not available commercially.

That being the case, it's hard to understand the severity of the official Ayckbourn Web site's warning about bootleg copies. Given that they know the demand is there, and given the amount those 71 plays are making in royalties and licensing fees, why not buy up the rights to those productions and release them, or begin a project of recording current SJT productions and revivals with a view to commercial release? The SJT shop sells scripts. Why not DVDs?

Asking that risks missing the essential nature of theater, which, along with storytelling, is probably one of the earliest forms of intellectual property expressed as a service. A film is infinitely copiable; every live performance is different, if only subtly, because audience feedback varies. I still wish they'd do it, though.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 12:02 PM | Permalink | Comments (0) | TrackBacks (0)

Yesterday, a US federal appeals court reversed a lower court ruling that might have invalidated open-source licenses. The case, Jacobsen v. Katzer, began more than two years ago with a patent claim.

Open-source software developer Robert Jacobsen manages the collective effort that produced Java Model Railroad Interface, which allows enthusiasts to reprogram the controller chips in their trains. JMRI is distributed under the Artistic License, an older and less-well known one of the free licenses (it isn't one of the Free Software Foundation's approved licenses, though its successor, Artistic License 2.0, is). Matthew Katzer and Kamind, aka KAM Industries sells a functionally similar commercial product that, crucially, Jacobsen claims is based on downloaded portions of JMRI. The Artistic License requires attribution, copyright notices, references to the file listing copyright terms, identification of the source of the downloaded files, and a description of the changes made by the new distributor. None of these conditions were met, and accordingly Jacobsen moved for a preliminary injunction on the basis of copyright infringement. The District Court denied the motion on the grounds that the license is "intentionally broad", and argued that violating the conditions "does not create liability for copyright infringement where it would not otherwise exist". It is this decision that has been reversed.

This win for Jacobsen doesn't get him anything much yet: the case is simply remanded back to the California District Court for further consideration. But it gets the rest of the open-source movement quite a lot. The judgement affirms Richard Stallman's original insight that created the General Public License in the first place, that copyright could be used to set works free as well as to close them down.

The decision hinges on the question of whether the licensing terms are conditions or covenants, a distinctions that's clear as glass to a copyright lawyer and clear as mud to everyone else. According to the Electronic Frontier Foundation's helpful explanation (and they have lots of copyright lawyers to explain this sort of thing), it's the difference between contract law and copyright law. Violating conditions means you don't have a copyright license; violating covenants means you've broken the contact but you still have a license. In the US, it's also the difference between federal and state law. When you violate the license's conditions, therefore, as Lawrence Lessig explains , what you have is a copyright infringement.

It's hard to understand how the district court could have taken the view it did. It is very clear from both the licenses themselves and from the copious documentation of the thinking that went into their creation that their very purpose was to ensure that work created collectively and intended to be free for use, modification, and redistribution could not be turned into a closed commercial product that benefited only the company or individual that sells it. To be sure, it's not what the creators of copyright - intended as a way to give authors control over publishers - originally had in mind.

But once you grant the idea of a limited monopoly and say that creators should have the right to control how their work is used, it makes no sense to honor that right only if it's used restrictively. Either creators have the legal right to determine licensing conditions or they have not. (The practical right is of course a different story; economics and the size of publishing businesses give them sufficient clout to impose terms on creators that those creators wouldn't choose.). Seems to me that a creator could specify as a licensing condition that the work could only be published on the side of a cow, and any publisher fool enough to agree to that would be bound by it or be guilty of infringement.

But therein lies the dark side of copyright licensing conditions. The Jacobsen decision might also give commercial software publishers Ideas about the breadth of conditions they can attach to their end-user license agreements. As if these weren't already filled with screeds of impenetable legalese, much of which could be charitably described as unreasonable. EFF points this out and provides a prime example: the licensing terms imposed by World of Warcraft owner Blizzard Entertainment have been upheld in court.

Blizzard's terms ban automated playing software such as Glider, whose developer, Michael Donnelly, was the target of the suit. EFF isn't arguing that Blizzard doesn't have the right to ban bots from its servers; EFF just doesn't think accusing Glider users of copyright infringement for doing is a good legal precedent. Public Knowledge has a fuller explanation of the implications of this case, which it filed as an amicus brief. Briefly, PK argues that upholding these terms as copyright conditions could open the way for software publishers to block software that interoperates with theirs. (Interestingly, Blizzard's argument seems to rely on the notion that software copied into RAM is a copyright infringement, an approach I recall Europe rejecting a few years ago).

You'd think no company would want to sue its own customers. But keeping the traditional balance copyright law was created to achieve between providing incentives for artists and creators and public access to ideas continues to require more than relying on common sense.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 10:32 AM | Permalink | Comments (0) | TrackBacks (0)

There's a certain irony in the International Olympic Committee's choice of YouTube as its broadcast platform for the Beijing Olympics, which started last night or this morning depending on your time zone. The plan is that the IOC's official channel will bring clips of Olympic coverage to the 77 countries in Africa, Asia, and the Middle East where it hasn't sold TV rights. This is the first time the Olympics will have official Internet coverage.

The IOC said eight years ago that it would not allow Internet broadcasting until technology was in place to control geographical distribution reliably. Four years ago, major broadcasters like the BBC did their first Webcasts of the Games to subscribers in the right geographical areas who had broadband. And now YouTube: the Olympics are starting to do their own TV production.

The irony lies in a couple of things. First of all, of course, are all those suits YouTube is currently experiencing. There's the Viacom suit, the one in which the judge has ordered YouTube to turn over "anonymized" user data. There's the €500 million suit brought by Mediaset, Italy's largest commercial broadcaster, owned by prime minister Silvio Berlusconi, which has said it will also claim compensation for lost advertising revenues. Music publishers. Football leagues. And so on. It's a surprise that the IOC is partnering with YouTube rather than suing Google.

Second of all is that even though YouTube (which, as it was only founded in February 2005, didn't actually exist at the time of the last summer Olympics) seems to be capable of blocking viewers from the wrong sort of IP address from the official channel the odds are pretty good that in a very short time the amount of unrestricted "unofficial" Olympic coverage on the site will dwarf the official stuff. It remains to be seen what kind of policing effort the IOC mounts to prevent that.

But the third irony is of course that there are plenty of ways to see the Olympics that bypass local broadcasters. And plenty of motives for doing so: US viewers, for example, have for years been frustrated by NBC's insistence on saving the biggest events for prime-time evening viewing, even if that means showing them on tape delay many hours after they actually took place. Got a friend with broadband and a VPN in another country that shows events live? VPN into friend's network and access their local broadcaster's stream via their network. British friends ought to be especially in demand for this kind of thing, since the BBC's coverage is...actually, comprehensive isn't really a big enough word for it.

If you're friendless and don't care about real-time viewing, you'll probably find the sport of your choice popping up pretty quickly via the usual torrent sites. True, that, too, will be time-delayed, but you will still get it sooner than those poor NBC-afflicted saps.

If you're friendless and do care about real-time viewing, your best bet is to download one of the many Chinese P2P TV players such as TVU Player (desktop and mobile phone versions), Sopcast (desktop and Web versions), or PPLive, or head over to Channelsurfing.net. These things tap into the open streams from broadcasters all over the world. Not ideal: the output is in a small, low-res screen on your computer, but as against that there's the benefit of having the commentary in a (usually) incomprehensible language. It's hard to get so annoyed with commentators you don't understand. (TVU Player showed the Olympic opening ceremony over what seemed to be an Italian channel.) Channelsurfing.net publishes a schedule you can click on. With the other players the schedule is always a little bit of a mystery, although AsiaPlate seems to be helpful with respect to the Olympic streaming schedule. (Its tennis page, however, hasn't been updated since February.)

By 2012, it would be a logical progression for the IOC to offer streaming video from its own site, particularly for the smaller niche sports that don't get much coverage even in the best-endowed countries. NBC is boasting as much as 3,600 hours of coverage if you include TV and broadband services, standard and high-def; NBC has said 2,900 hours of it will be live. The difficulty for the IOC is that according to its own figures (PDF) 50 percent of its revenues - $2.57 billion - come from broadcast rights (and much of that from NBC). Sponsorship is 40 percent, ticketing 8 percent, and licensing and other sources only 2 percent. It's hard to imagine the Net being able to replace that kind of revenue any time soon. What's more likely is pressure on broadcasters to encrypt those open streams.

Sports, particularly the biggest events, seem likely to continue to increase in value to broadcasters: they are one of the few things that a mass of people really care about seeing live. Which is the fourth irony: both the IOC's own official YouTube channel and an important portion (a little over 20 percent) of the official channels of its biggest broadcaster, NBC, are both tape-delayed.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 3:32 PM | Permalink | Comments (0) | TrackBacks (0)

This week the European Commission decided to ignore protests and economic evidence in favour of the record companies and adopted a proposal for term extension in sound recordings (PDF) to 95 years instead of the current 50 years.

There is one almost good thing in the proposal: that when a recording is due to enter the public domain the publisher has one year to use it or lose it - and losing it means the rights will revert to the performer. If the performer also doesn't use it, then it comes into the public domain. I say "almost good" because that reversion of rights needs to happen much earlier in the life of a recording; rights should revert, as they do in book publishing, when the company takes a recording out of commercial release.

The rest is a batch of justifications for giving the record companies what they want based on the very real and very terrible economics of most musical careers. These bad arguments are begetting wrongheaded debate.

Ars Technica, for example, has chosen to complain that the proposed extension smacks of grotesque entitlement. But this is wholly unfair: in general the push for term extension is not coming from musicians but from record companies. And that article's complaint that musicians should have made provision for their old age the way everyone else has to is undercut by the figures quoted a few paragraphs later. The couple of thousand pounds that represents the high end of what an "average" pensioner musician might receive according to McCreevy's estimates might help them buy a new condensing boiler one year when it gets cold. It's not going to make the difference between poverty and a comfortable life.

Even if we were talking about riches, though, that particular argument, if followed to its logical conclusion, would do away with copyright altogether: if it sounds like special pleading to ask for term extension to fund retirement, then surely the same must be true of the money received during the first 50 years of copyright.

PWJs - people with jobs - may not see why a musician recording a song should be different than a plumber installing a bathtub. Even some of our own don't. The late journalist John Diamond used to say you don't pay the plumber royalties every time you use a bathtub he's installed, not even if people buy tickets for the privilege of seeing it. But royalties are a trade-off; in return for shouldering the considerable risk of a creative career creators get the right to exploit their work. It is some incentive. But it's not why people try for artistic careers, since people do this - and fail at it - by the thousand. The odds are terrible: the proposal itself notes that only 5 percent of performers make a living from their profession. But over all the point all musicians would make is that if someone is going to be making money out of their work they feel they deserve some of it.

Royalties from sound recordings are part of what at least theoretically makes a full-time professional musical career possible. This is the bargain society made in allowing copyright in sound recordings in the first place. It is not about paying people pensions. The proposal estimates that term extension will mean continued payments to approximately 7,000 musicians in the larger EU countries; if we simply want to support retired musicians it would be cheaper to let the state give them a handout.

A more reasonable argument is to say that when today's 70-somethings went into the studio in 1958 - and when the record companies paid them to do so - they made a contract with society that after 50 years their recordings would go into the public domain. There certainly is now no question of incentive: if term is extended they can't retroaactively decide to have recorded more back then. Generations of musicians since have gone on recording and the record companies are not complaining that it's difficult to find people who will accept "only" a 50-year term of copyright. Whining that they don't like the terms of the social contract now should bear as little weight as someone in a divorce hearing claiming they signed the pre-nup without reading it.

But these are negative arguments. The more positive arguments have come from for example the Gowers report, which argued against term extension on economic grounds. These are being ignored. My favourite bit of the Commission's proposal is the completely backward bit that argues that there will be no difference to consumers because public domain recordings do not sell for less than copyrighted ones - and anyway it doesn't matter because there are plenty of alternative noises people can listen to.

The good news is that this is the last time the recording industry will be able to claim that it is lobbying for term extension to benefit artists. Unless the anti-aging folks get a miracle together, 40 years from now, when these recordings are nearing their new expiration date, all the artists will be dead. Trying to garner sympathy for their heirs will be a lot weaker argument, emotionally speaking.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 1:54 PM | Permalink | Comments (0) | TrackBacks (0)

This is a shortened version of a talk I gave at Musicians, Fans, and Copyright at the LSE on Wednesday, March 19, 2008.

Most discussions about copyright with respect to music do not include musicians. The notable exception is the record companies' trophy musicians who appear at government hearings. Because these tend to be the most famous and well-rewarded musicians they can find, their primarily contribution to the dabate seems to be to try to make politicians think, "We love you, we can't bear that you should starve, the record company must be right." It's a long time since I made a living playing, so I can't pretend to represent them. But I can make a few observations. Folk musicians in particular stand at the nexus of all the copyright arguments: they are contemporary artists and songwriters, but they mine their material from the public domain.

Every musician, at every level of the business, has been ripped off (PDF), usually when they can least afford it. The result is that they tend to be deeply suspicious of any attempt to limit their rights. The music business has such a long history of signing the powerless - young, inexperienced musicians, the black blues musicians of the Mississippi Delta, and many others - to exploitive contracts that it's hard to understand why they're still allowed to get away with it. Surely it ought to be possible to limit what rights and terms the industry can dictate to the inexperienced and desperate with stars in their eyes?

Steve Gillette, author with Tom Campbell of the popular 1966 song "Darcy Farrow", says that when Ian & Sylvia wanted to record the song, they were told to hire someone to collect royalties on their behalf. That person did little to collect royalties for many years. Gillette and Campbell eventually won a court judgement with a standard six-month waiting period - during which time John Denver recorded the song and put it on his best-selling album, Rocky Mountain High, giving the publisher a motive to fight back. They were finally able to wrest back control of the song in about 1990.

In book publishing it is commonplace for the rights to revert to authors if and when the publisher decides to withdraw their work from sale. There is no comparable practice in the music business. And so, people I know on the folk scene whose work has gone out of commercial release find themselves in the situation where their fans want to buy their music but they can't sell it. As one musician said, "I didn't work all those years to have my music stuck in a vault."

Pete Coe, a traditional performer and songwriter, tells me that the common scenario is that a young musician signs a recording contract early on, and then the company goes out of business and the recordings are bought by others. The purchasing company buys the assets - the recordings - but not the burden, the obligation to pass on royalties to the original artists. Coe himself, along with many others, is in this situation; some of his early recordings have been through two such bankruptcies. The company that owns them now owns many other folk releases of the period and either refuses to re-release the recordings or refuses to provide sales figures or pay royalties, and is not a member of MCPS. Coe points out that this company would certainly refuse to cooperate with any effort to claim the reversion of rights.

In a similar case, Nic Jones, a fine and widely admired folk guitarist who played almost exclusively traditional music, was in a terrible car accident in about 1981 that left him unable to play. Over the following years his recordings were bought up but not rereleased, so that an artist now unable to work could not benefit from his back catalogue. It is only in the last few years, with the cost of making and distributing music falling, that he and his wife have managed to release old live recordings on their own label. Term extension would, if anything, hurt Jones's ability to regain control over and exploit his own work. (Note: I have not canvassed Jones's opinion.)

The artists in these cases, like any group of cats, have reacted in different ways. Gillette, who comments also that in general it's the smaller operators who are the biggest problem, says, that term extension "only benefits the corporate media, and in my experience only serves to lend energy to turning the public trust into company assets".

Coe, on the other hand, favors term extension. "We determined," he said by email in 2006, "that once we'd regained our rights, publishing and recording, that they were never again to pass out of our control."

Coe's reaction is understandable. But I think many problems could be solved by forcing the industry to treat musicians and artists more fairly. It's notable that folk artists, through necessity, pioneered what's becoming commonplace now: releasing their own albums to sell to audiences direct at their gigs and via mail, now Web, order.

What the musicians of the future want and need, in my opinion, is the same thing that the musicians of the present and past wanted: control. In my view, there is no expansion of copyright that will give it to them.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 3:40 PM | Permalink | Comments (0) | TrackBacks (0)

There is a certain kind of mentality that is actually proud of not understanding computers, as if there were something honorable about saying grandly, "Oh, I leave all that to my children."

Outside of computing, only television gets so many people boasting of their ignorance. Do we boast how few books we read? Do we trumpet our ignorance of other practical skills, like balancing a cheque book, cooking, or choosing wine? When someone suggests we get dressed in the morning do we say proudly, "I don't know how"?

There is so much insanity coming out of the British government on the Internet/computing front at the moment that the only possible conclusion is that the government is made up entirely of people who are engaged in a sort of reverse pissing contest with each other: I can compute less than you can, and see? here's a really dumb proposal to prove it.

How else can we explain yesterday's news that the government is determined to proceed with Contactpoint even though the report it commissioned and paid for from Deloitte warns that the risk of storing the personal details of every British child under 16 can only be managed, not eliminated? Lately, it seems that there's news of a major data breach every week. But the present government is like a batch of 20-year-olds who think that mortality can't happen to them.

Or today's news that the Department of Culture, Media, and Sport has launched its proposals for "Creative Britain", and among them is a very clear diktat to ISPs: deal with file-sharing voluntarily or we'll make you do it. By April 2009. This bit of extortion nestles in the middle of a bunch of other stuff about educating schoolchildren about the value of intellectual property. Dare we say: if there were one thing you could possibly do to ensure that kids sneer at IP, it would be to teach them about it in school.

The proposals are vague in the extreme about what kind of regulation the DCMS would accept as sufficient. Despite the leaks of last week, culture secretary Andy Burnham has told the Financial Times that the "three strikes" idea was never in the paper. As outlined by Open Rights Group executive director Becky Hogge in New Statesman, "three strikes" would mean that all Internet users would be tracked by IP address and warned by letter if they are caught uploading copyrighted content. After three letters, they would be disconnected. As Hogge says (disclosure: I am on the ORG advisory board), the punishment will fall equally on innocent bystanders who happen to share the same house. Worse, it turns ISPs into a squad of private police for a historically rapacious industry.

Charles Arthur, writing in yesterday's Guardian, presented the British Phonographic Institute's case about why the three strikes idea isn't necessarily completely awful: it's better than being sued. (These are our choices?) ISPs, of course, hate the idea: this is an industry with nanoscale margins. Who bears the liability if someone is disconnected and starts to complain? What if they sue?

We'll say it again: if the entertainment industries really want to stop file-sharing, they need to negotiate changed business models and create a legitimate market. Many people would be willing to pay a reasonable price to download TV shows and music if they could get in return reliable, fast, advertising-free, DRM-free downloads at or soon after the time of the initial release. The longer the present situation continues the more entrenched the habit of unauthorized file-sharing will become and the harder it will be to divert people to the legitimate market that eventually must be established.

But the key damning bit in Arthur's article (disclosure: he is my editor at the paper) is the BPI's admission that they cannot actually say that ending file-sharing would make sales grow. The best the BPI spokesman could come up with is, "It would send out the message that copyright is to be respected, that creative industries are to be respected and paid for."

Actually, what would really do that is a more balanced copyright law. Right now, the law is so far from what most people expect it to be - or rationally think it should be - that it is breeding contempt for itself. And it is about to get worse: term extension is back on the agenda. The 2006 Gowers Review recommended against it, but on February 14, Irish EU Commissioner Charlie McCreevy (previously: champion of software patents) has announced his intention to propose extending performers' copyright in sound recordings from the current 50-year term to 95 years. The plan seems to go something like this: whisk it past the Commission in the next two months. Then the French presidency starts and whee! new law! The UK can then say its hands are tied.

That change makes no difference to British ISPs, however, who are now under the gun to come up with some scheme to keep the government from clomping all over them. Or to the kids who are going to be tracked from cradle to alcopop by unique identity number. Maybe the first target of the government computing literacy programs should be...the government.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 1:34 PM | Permalink | Comments (0) | TrackBacks (1)

On the Net, John Perry Barlow observed long ago, everything is local and everything is global, but nothing is national. It's one of those pat summations that sometimes is actually right. The EU, in the interests of competing successfully with the very large market that is the US, wants to harmonize the national laws that apply to content online.

They have a point. Today's market practices were created while the intangible products of human ingenuity still had to be fixed in a physical medium. It was logical for the publishers and distributors of said media to carve up the world into national territories. But today anyone trying to, say, put a song in an online store, or create a legal TV download service has to deal with a thicket of national collection societies and licensing authorities.

Where there's a problem there's a consultation document, and so there is in this case: the EU is giving us until February 29 (leap year!) to tell them what we think (PDF).

The biggest flaw in the consultation document is that the authors (who needed a good copy editor) seem to have bought wholesale the 2005 thinking of rightsholders (whom they call "right holders"). Fully a third of the consultation is on digital rights management: should it be interoperable, should there be a dispute resolution process, should SMEs have non-discriminatory access to these systems, should EULAs be easier to read?

Well, sure. But the consultation seems to assume that DRM is a) desirable and b) an endemic practice. We have long argued that it's not desirable; DRM is profoundly anti-consumer. Meanwhile, the industry is clearly fulfilling Naxos founder Klaus Heymann's April 2007 prophecy that DRM would be gone from online music within two years. DRM is far less of an issue now than it was in 2006, when the original consultation was launched. In fact, though, these questions seem to have been written less to aid consumers than to limit the monopoly power of iTunes.

That said, DRM will continue to be embedded in some hardware devices, most especially in the form of HDCP, a form of copy protection being built, invisibly to consumers until it gets in their way, into TV sets and other home video equipment. Unfortunately, because the consultation is focused on "Creative Content Online", such broader uses of DRM aren't included.

However, because of this and because some live streaming services similarly use DRM to prevent consumers from keeping copies of their broadcasts (and probably more will in future as Internet broadcasting becomes more widespread), public interest limitations on how DRM can be used seem like a wise idea. The problem with both DRM and EULAs is that the user has no ability to negotiate terms. The consultation leaves out an important consumer consideration: what should happen to content a consumer pays for and downloads that's protected with DRM if the service that sold it closes down? So far, subscribers lose it all; this is clea

The questions regarding multi-territory licensing are far more complicated, and I suspect answers to those depend largely on whether you're someone trying to clear rights for reuse, someone trying to protect your control over your latest blockbuster's markets, or someone trying to make a living as a creative person. The first of those clearly wants to buy one license rather than dozens. The second wants to sell dozens of licenses rather than one (unless it's for a really BIG sum of money). The third, who is probably part of the "Long Tail" mentioned in the question, may be very suspicious of any regime that turns everything he created before 2005 into "back catalogue works" that are subject to a single multi-territory license. Science fiction authors, for example, have long made significant parts of their income by selling their out-of-print back titles for reprint. An old shot in a photographer's long tail may be of no value for 30 years – until suddenly the subject emerges as a Presidential candidate. Any regime that is adopted must be flexible enough to recognize that copyrighted works have values that fluctuate unpredictably over time.

The final set of question has to do with the law and piracy. Should we all follow France's lead and require ISPs to throw users offline if they're caught file-sharing more than three times? We have said all along that the best antidote to unauthorized copying is to make it easy for people to engage in authorized copying. If you knew, for example, that you could reliably watch the latest episode of The Big Bang Theory (if there ever is one) 24 hours after the US broadcast, would you bother chasing around torrent sites looking for a download that might or might not be complete? Technically, it's nonsense to think that ISPs can reliably distinguish an unauthorized download of copyrighted material from an authorized one; filtering cannot be the answer, no matter how much AT&T wants to kill itself trying. We would also remind the EU of the famed comment of another Old Netizen, John Gilmore: "The Internet perceives censorship as damage, and routes around it."

But of course no consultation can address the real problem, which isn't how to protect copyright online: it's how to encourage creators.

Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 3:58 PM | Permalink | Comments (0) | TrackBacks (0)

If you really want to date yourself, admit that you remember Ted Mack's Amateur Hour. Running from 1949 to 1970, it was the first televised amateur talent competition, the granddaddy of today's reality TV. What's new about the Internet isn't that amateurs can create content people will look at but the ability to access an audience without going through an older-media gatekeeper.

But even on the Internet, user-generated content (as the kids are calling it these days) is not new: user-uploaded messages and files are how people like CompuServe made money. But that was user-originated content. Today's user-generated content on sites like YouTube includes a mass of uploaded video, audio, and text that in fact do not belong to the users but to third parties. These issues are contentious; so much so that Ian Fletcher, the CEO of he UK's Intellectual Property Office, bailed at the thought of appearing before an audience that might publish his remarks out of context on the Net.

To hear media representatives tell it at today's Amateur Hour conference, they regarded it with a pretty benign eye for quite a while.

It wasn't, said Lisa Stancati, assistant general counsel for ESPN, until Google bought YouTube that everyone got mad. "If Google is going to be making money from my content I have a serious problem with that."

Well, fair enough. But how did it get to be your content? Media companies love theoretically paying artists when they want to expand copyright. Come contract time it's a different story, as the tableful from Actors Equity knew all too well. And what about the content of the future?

Marni Pedorella, vice president of NBC Universal, notes that the site the company runs for Battlestar Galactica fans provides raw materials for users to play with. If they upload the mashed-up results, however, NBC takes a royalty-free license in perpetuity. Are older media hoping new media will become a source of what Brian Murphy is calling CGC – for "cheaply generated content". Like reality TV?

Heather Moosnick, vice president of business development for CBS Interactive, recounted CBS's moves to share its content more widely around the Net: you can watch current shows on its Web site, for example (unless you live outside the US). But, she said sadly, if people don't care about copyright – well, there might be fewer CSIs. (Threat or promise? There are three CSI shows. At least she didn't say that less "expert content" will deprive us of Cavemen.)

Because the conference was sponsored by a law school, a lot of the moderators' questions centered on things like: How do you see your risks developing? What is your liability? What about international laws?

And: what is the difference between a professional and an amateur? You might argue that it doesn't matter as long as the content is interesting, but when it comes to the shield laws that allow journalists to protect their sources the difference is important. Should every blogger – hundreds of millions of them – have the right ? Just the ones with mass audiences who make a living from running AdSense alongside their postings? None? Is a blogger with an audience of 100,000 of the most important people in American politics more or less worthy of protection than a guy writing for a local paper with a circulation of 10,000? Is a fan taking pictures of Lindsay Lohan with a cell phone subject to California's new law limiting paparazzi?

To me, the key difference between an amateur and a professional is that the professional does the job even when he doesn't feel like it.

The source of this idea is Agatha Christie, who defined the moment she became a professional writer, some ten or 15 books into her career. She was mid-divorce, and she liked neither the book nor her work on it – but she had a contract. The amateur can say, Screw the contract, I don't feel like getting up this morning. The professional makes the work arrive, even if it stinks. Unfortunately, that practical distinction is not easily describable in law.

You could define it a different way: a professional is the guy you'll miss if he goes on strike, as TV writers are about to do over residual payments for digital reuse.

Another line: a lot of large companies operate their message boards on the basis of the safe harbor protections in the DMCA, under which you're not liable as long as you take down material when notified of infringement or other legal problems. What about mixed content? There's a case pending between the Fair Housing Council and Roommates.com because the latter site gave users a questionnaire asking such roommate-compatibility questions as age, race, gender, sexual orientation… All these are questions that landlords are not allowed to ask under the Fair Housing Act. At what point is someone looking for a roommate subject to that act? Are we really going to refuse to allow people all control over who they live with?

These aren't problems that have solutions, at least yet. They're the user-generated lawsuits of the future.

Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).