©ollectanea

About a year and a half ago, several folks involved in trying to create more breathing room for fair use in the documentary film business worked together to come up with a set of principles that they believed should represented the scope of fair use within that industry. They published these principles as Best Practices in Fair Use. At the time this signaled, along with the development of some divergent court holdings with respect to the scope of fair use in different creative contexts, that maybe a "genre by genre" understanding of fair use would evolve, or should evolve.

Now two additional developments reported at Info/Law � Even Better News on Fair Use and Insurers confirm the value of this approach. The Best Practices are being adopted as standards for insuring productions. Insurers are one of the conservative "gatekeepers" whose demands for reduced risk drive development of the permission culture.

Responsible statements of fair use best practices for different segments of the entertainment, artistic and musical businesses offer real hope that we can back away from the precipice of the permission culture, where every single little piece of anyone else's work included in a new work must be cleared. Of course, clearing everything is more often than not impossible, which results in a reduction in the creation of new works or their scope, precisely the opposite result from what we expect from copyright. But this result is not surprising when the rights of owners are interpreted so broadly as to exclude any use of others' materials whatsoever without permission.

A big hand to those who have worked to create the first set of Best Practices and encourage their adoption more widely within the documentary film industry. Now we need to see similar efforts among other segments of our creative industries. Closely related to this is the magnificent effort to encourage artists, musicians and all creators to "tag" their online works with Creative Commons licenses that make explicit the range of rights the creator gives the public, affirmatively enabling sharing reuse and remixing.

Microsoft has made headlines a lot lately. The release of Vista, a new Book Search interface, a scathing attack on Google earlier this week before an AAP gathering in NY, and now, this NY Times article, Searching for Michael Jordan? Microsoft Wants a Better Way - New York Times, featuring Microsoft's efforts to improve its statute in the world of online search.

I saw an interesting connection among these headlines. I've been reading about how Vista packs the biggest DRM accommodating punch of any operating system ever (Google search on something like Vista drm to get a feel for the commentary), the speech before the AAP painted Google as cavalier about copyright and MS as totally supportive of the publishing industry, and the stats in the NY Times piece show that Microsoft is near the bottom of the heap regarding the use of, and lack of recent growth of, its search features.

These pieces look like parts of a very aggressive campaign to claw its way out of its own 20th Century niche, taking no prisoners, no holds barred. It has all the hallmarks of a political campaign, including the mudslinging. Tim O'Reilly chides MS and insists it is bigger than this, that we expect more out of a player of this size. Larry Lessig believes MS is just plain wrong about Google's cavalier attitude. I certainly agree with Lessig's sentiments, but as for whether we can expect more from MS, I don't know. Perhaps MS is just as much a victim of its business model as Holly wood and the publishers are of theirs (O'Reilly's comments again, in another entry)?

I wonder whether in working together as they must have, to implement such powerful DRM controls in Vista, whether they may actually impair their own progress towards more efficient business models in the future. In fact, I often think about DRM in the context of the old adage, "give them enough rope and they'll hang themselves." Many of the commentaries about Vista's DRM suggest that it's like a suicide note... Only time will tell.

I once read that the year before the transistor *completely* replaced the vacuum tube, more vacuum tubes were sold than in any other year of their existence. I'm awful with details, so I'll accept that I may not have this little fact completely correct, but the essential meaning of it keeps me from getting too discouraged when the technology wars get really nasty, as they seem to be getting right now with content owners stepping up the pressure on just about everyone to accept their version of (and control of how we get to) the future.

Cory Doctorow annotated in red, the University of Southern California's notice to students about copyright compliance: USC Copyright Compliant letter, annotated by Cory Doctorow, for example. The notice is from last summer, but seems nicely suited to the current drive to more deeply engage ISPs, including universities, in RIAA's war on p2p file sharing.

Viacom filed suit against YouTube and Google today (press release). Negotiations weren't going well from Viacom's perspective, and since content owners have monopolies granted by the federal government, they can play hardball in what might otherwise be simple, healthy creative destruction (a la Schumpeter and a host of others).

All this added to my observations last week about MS DRM, Rubin's speech blasting Google... it all looks like the building of one of those "waves of the century" about to hit the beach in Hawaii. So is it the last year of the vacuum tube, or is it just another day in the life and death struggle of adaptation to a networked world?

Judith Thomas does a masterful job of explaining best practices and challenges in creating a digital motion media collection in this article, Digital Video, the Final Frontier - 1/15/2004 - netConnect. I'm studying digitizing video right now at the iSchool, and this was an optional reading. I found it most inspiring because there's not one mention of copyright or rights or permissions in the entire article. It's simply not on the table. Wow. That's like a dream, isn't it?

Several years ago I was invited by the Library of Congress to participate in a 3 day discussion about digital archiving. The setting was in gorgeous Berkeley, CA at a fabulous hotel. The other invitees were a glittering array, including the Register of Copyrights, MaryBeth Peters. I gladly accepted, and I felt honored to be invited. But, a curious thing happened at the very beginning of the gathering. All the participants agreed that they would define the copyright issues out of the discussion. I don't know how the Register felt about this, but it made me feel a little under-utilized, to say the least (useless, puts it more bluntly). I was absolutely amazed at the quantity of ideas entertained, the quality of the solutions proffered, the creativity of the group. If copyright had been on the table, the group might just was well have sat around the pool gossiping. It would have been, in effect, a nonstarter.

Since that meeting, I've begun more and more to believe that for some things libraries need to do for the future, they just need to be done without much concern for what the law says today. The very idea that anyone who's job it is, or I should say who's mission in life it is, to preserve for posterity, simply cannot stand by and watch important pieces of the 20th century just crumble before their eyes because of fear of getting sued, more often than not, by someone who could care less what you're doing, or who's actually dead, or who's descendants could care less, etc. etc. etc. etc. etc. etc.

I noticed earlier today a post at Michael Geist's blog about a remarkable speech by Bruce Lehman, former Commissioner of Patents and architect of the DMCA, notably including the anti-circumvention provisions, in which he suggests that we're entering a post-copyright era. He also admits that the DMCA as an approach has failed...

This idea that copyright is becoming irrelevant is actually one of the things that contributed considerably to my decision to get a degree in information studies and refocus, away from copyright. It's just terribly out of sync right now and as much as I hate to admit it, I truly feel that it just has to be ignored in some of its more egregiously out of sync aspects. (I'm waiting to be struck dead by a lightening bolt... waiting... waiting...) This is like the moral dilemma of our time (for those of us who think about things like this), like civil disobedience. Defiant preservation, organization, indexing, and access. Will wrong-headed and failed laws go quietly into the night at some point, or do we just turn away and embrace new paradigms created on their ruins, such as Creative Commons licenses and new business models that rely on something other than artificial scarcity to motivate creativity? And will libraries just quietly do what has to be done?

It's official. The third largest music distributor, EMI, announced today with Apple's Steve Jobs that it would offer its entire catalog DRM-free on iTunes: EMI, Apple To Sell DRM-Free Music for $1.29/song. Et voila, do we have the beginning of the end for DRM? It will depend (lawyerly answer, no?). But for the moment at least, it's worth celebrating.

As we've noticed this year, there have been numerous indications that things may be shifting a bit in a positive way with respect to the business models of the media companies that have most resisted such change. We have discussed some of these indications in earlier posts here on Collectanea. Most are optimistic postings. I tend to be an optimist. But lately I've encountered a few things that bring out my pessimistic (some would say, realistic) side. One in particular seems to signal that even when large media companies finally engage the future and embrace (or seem to embrace) new technologies, their ways of thinking about their businesses can remain largely unchanged. MySpace illustrates this point.

Originally conceived in a way that fully integrates the functionality of Web 2.0, the idea that content can be mixed and matched and shared and reused by applications all over the Web, MySpace now finds itself chafing at the openness of this model. It allows MySpace page owners to link to pages where content is served with advertising. In the complex way revenue streams work on the Web, this means to MySpace owner, Rupert Murdoch, that other companies are making money from the content that "belongs" to him (ie, his users' content). So he has moved to block his users from linking to rival sites that display content with advertisements. In Silicon Valley, this is not playing very well, as might be expected. I wonder whether it suggests that although we may not see copyright as the battle cry in this kind of dispute, the underlying issue has simply resurfaced in a new way. It is still the content owner challenging the upstart technology wishing to make money from some use of the content. Actually, in this case, it's not technically his content under copyright law, but it's his content in the sense that he seems to think of his users as a commodity whose content he should be able to control. It will be interesting to see what effect if any this has on the commodified user.

If you are unfamiliar with the idea of the Long Tail, I urge you to visit the Website where this story is posted for more information generally, and of course to read this little note about lost opportunities, lost expression, lost creativity: The Long Tail: Long Tail enemy #1. It's about the failed effort to clear rights in music that was such an integral part of the 70's television show, WKRP in Cincinnati. The creative possibilities today involving new uses of existing materials just do not mesh with yesterday's processes, procedures and the law that backs them up. There are many other even more compelling stories than this one, many of which Lessig and others have chronicled. Though the subject matter is not in the same league with real war, it reminds me nonetheless of the lines from Blowin in the Wind, "How many times must ... before..."

This short article is just brimming with ideas about how an author can better integrate his or her creative works into the flow of creationCopy This Book — Jonathan Lethem on Life as a Copyfighter -. Although I think there's a lot to be gained through Creative Commons licenses, for example, the fact that by using them, one's choice to share more broadly than the law's default provisions would allow is noted and CC works are searchable on the Web, that although there are many choices of CC license, one can recognize a typical set of rights with the abbreviated forms that are becoming common, still, Lethem's idea that people should think more creatively about how they want to to share their works is not without its appeal. At least it's a call to recognize how much we depend on the work of others, rather than persist in the idea that we create out of thin air and thus have a moral right to claim such broad, disabling exclusivity in our creations as the law now permits.

This has been in my thoughts for a long time, that the original idea of copyright was to provide just enough of a monopoly to bring about creation. Monopoly is not really a desirable way to do things, but where we've determined that the benefit outweighs the obvious drawbacks, we should at least limit the monopoly to only that which is required. The millions of people who are creating and giving broad user rights to the public are testament to the notion that we are over the line in what we provide authors. The harm done by such over-protection is more obvious every day.

It was a big week for copyright. Events were reported all over the blogosphere. My friend and fellow grad student, Carlos Ovalle, has a nice roundup on his blog, Copy This Blog, where he reports several unsurprising legal opinions based in the sad music industry war against college students, and in a post a few days earlier, the related decision of Ohio University to ban p2p software on its system.

MPAA's former head, Jack Valenti, died this week. Lawrence Lessig offers an interesting memoir.

And the Stanford Center for Internet and Society posted a note about a decision that determined that downloads were not performances for ASCAP/BMI/SESAC royalty purposes.

Tobe Liebert, one of my favorite law librarians (I have lots of favorite law libraians -- our UT Law School Library is one of the best!), posted a note about Siva Vaidhyanathan's explication of his position regarding the three serious dangers of the Google Book Search Project, well articulated and succinct. His argument raises important questions about a future that includes wildcard projects like Google Book Search. If you have a chance to see Siva in person, don't miss it.

On another note, I am winding down my first full year of grad school. Classes end next week. Papers are due, presentations will be made, files of printed articles will be dumped (recycled, of course). It has been a really amazing experience for me, one that still astonishes me, nearly 9 months into it. I'm registered for the summer session and for the fall. I shift focus next year to research, having been accepted into the Ph.D. program. In the meantime, I head off to France to do a little bit of research, sort of getting my feet wet in the Seine (and the Cote d'Azure). Whatever I conclude based on my little sojourn will be reported through the CIP, perhaps even here on the blog. I'm going to write a paper, though I have to admit, I call it that only reluctantly, because I am planning to put my money where my mouth is -- I'm focusing on the future of the book, and I'm going to place all my research data, analysis, results and predictions in forms that explore that future. So, it will be fun, as well as instructive for me to figure out novel ways to report research in progress. I hope you'll enjoy that exploration too. The future of libraries is affected directly by the future of books so it is in our interests to pay attention to the expansion of the expressiveness we experience in books today.

Print is Dead has a nice piece focusing on how much has changed in the music industry by comparing the release 40 years ago of Sgt. Pepper's Lonely Heart's Club Band with Paul McCartney's latest release: Print is Dead: Books in Our Digital Age -- It's Getting Better All the Time: Paul McCartney's new record. It is a very upbeat piece, though it ends with a little admonition to the publishing industry not to sit idly by and wait for the ax to fall.

I don't often lose sleep over copyright issues anymore. But last night I could not stop thinking about the Copyright Office's new resource for *children.* Please have a look if you haven't already: Taking the Mystery Out of Copyright. There's a text only version if you want to skip the cartoons and the music (assuming you are not 13). This bothers me on so many levels, but I'm only going to address one level here, the most obvious. My experienced, calm, collected voice is telling me to wait a few days before I write this. Ok, at least wait a few days before I publish it. Clearly, I am ignoring that voice. I should at least acknowledge that I'm probably overreacting. I no doubt will feel differently about it after I have thought about it for awhile. Maybe I'll write about it again after a few days.

That said, do children really need to know about copyright? Well, I reluctantly must admit that yes, they do. Should they need to know about copyright registration, copyright history, and the role copyright plays in protecting film, music, art and literature? Well, it's not like they need to be protected from this, like it was senseless death, war violence or something cruel and ugly. So, it is commendable that the Library of Congress offers a well-done, straightforward, and fairly neutral informational piece. What would we expect the Library to talk about, other than what it does, which is, in this case, copyright registration. A narrow slice of the copyright pie, to be sure, but again, that's one of the things the Library does that no one else does.

But on the other hand, remember what it was like to be 13? Was registering your copyrights something you were all that concerned about? Should you have been? Have things changed that much with respect to how likely it is that the metaphorical box of things you created during your 13th or 14th year of life needs protection? From what? From becoming part of the stream of creativity (my metaphors are all over the place) from which you yourself borrowed to create?

If I had one opportunity to tell kids about copyright, I suppose I would mention its role in protecting the commercial interests of creators and distributors like the film, music, art and publishing industries, but in the next breath I would appeal to their own sense of how most things we all create are not meant for commercial exploitation, but instead are meant to be shared, reused, remixed and borrowed from. I'd say, "Look inside that box of things you created last year. Let's look at where all your things came from. Let's see how borrowing and modifying and adding your own ideas works in real life, and what we all need to keep that going."

The lesson I would teach is about the fact that *YOU HAVE TO DO SOMETHING* if you want your own creativity to be added to and be a part of a flowing, lively stream, rather than be caught up in a little eddy that goes nowhere. Congress (something here about infinite wisdom) has created a set of rules that, without your doing anything beyond the mere act of creating (tangible things, of course), keeps everything you create in that box, locked away, maybe forever, but at least for, let's see, you're 13? Let's say you'll live to 78, your box of stuff stays locked away for the rest of your life (65 years) plus 70 more years. Yes, in 135 years your box of stuff will possibly join the stream of creativity. If the box is still around then. And somebody finds it. And they know you and only you created it, and when you died. And they know about copyrights. If that doesn't fit your idea of what you want, then YOU HAVE TO DO SOMETHING. You have to let people know that you have something else in mind for your box of stuff. Fade to Creative Commons logo/website.

The assumption that everything needs "protection" for 1 1/3 centuries is so out of step with the reality of how we all create and most importantly, *why* we all create (overwhelming, not to make a living from our creations), and the serious consequences of being out of step with reality makes me very sad, and angry. The waste, the untapped creativity, and the criminalizing of creativity cannot be defended in my opinion. One size does not fit all. Given the enormity of the explosion of creativity enabled by the networked environment, to say nothing of creativity in the real world, the lessons we need to teach are about taking responsibility to do individually what Congress cannot seem to do for us as a nation -- create a copyright that fits our widely divergent needs, rather than one that both stifles us creatively and turns us into criminals (or potential civil litigants -- there's another interesting copyright lesson for kids) if we ignore it. We need to tag our creative works with simple statements that express how we feel about their place in the creative stream. I would recommend Creative Commons licenses for many reasons, but any statement about sharing is better than doing nothing and thereby consigning your work to copyright's centuries-long holding bin, or perhaps appropriately named, wastebasket.

I have believed for quite some time now that the problem with copyright and creative culture wasn't really a legal problem, but rather a business model problem, and this continues to be a year where the business solutions are finally making me think that maybe I was right... Print is Dead: Books in Our Digital Age ｻ Tatooine Freezes Over: Lucas to authorize mash-ups. Just a little bit of encouragement, that's all it takes.

Are you anticipating the launch of the iPhone in two days? Are you at this moment in a line to buy one? You could be. You probably aren't. But if things go even a little bit like everyone is predicting they will, the iPhone will change your life whether you have one or not. Take, for example, the post at Print is Dead: Books in Our Digital Age ｻ Apples and Changes: What publishing can learn from the iPhone. The author sees the triumph of the multi-use device as the big story here, with profound implications for publishing.

I don't disagree, actually, but from my perspective, it's another example of the triumph of "show me the money." Once any content industry figures out how it can make more of it from letting loose than from holding tight, it will let loose. Copyright won't have to change for this to happen. It will just slip into the background from whence it came (before the Internet).

I had just read a few minutes before the Print is Dead blog post, that Harry Potter is making more money from sales and licensing of things other than the actual book. Granted, a toy Harry is probably protected by intellectual property rights too, but the toy Harry is holdable, carryable, posable. He can be digitized, obviously, but he becomes something else when he's digital. He has an additional value as a thing, and his sales success can take the pressure off making profits on the book content itself, that can be digitized (and over which you lose control if you digitize them).

So these two stories come together: the iPhone implication is that a multi-purpose media device is the missing link, that once it's widely in use, publishers (and Hollywood and everyone else) will understand why the stand-alone reader never succeeded, publishers will begin to respond to or even anticipate consumer demands and migrate to networked social environments and the difference between a book and the 'net will gradually fade away, entirely for some genres, not entirely for others. And copyright doesn't need to change for any of this to happen. It just becomes less relevant to the business of making profits, so it's not always necessary to assert it. So the theory goes.

Chapter II: next installment to follow after a year or two of iPhones ... In other words, "we'll see."

I read a press release on the Liblicense listserve this morning from Wiley-Blackwell announcing a new series of journals: "Wiley-Blackwell Launches Review Journals in Social Sciences and Humanities -- Cutting-edge functionality added to Compass journals," the title read. I went to visit the site (Compass Journals and glimpsed the future of publishing in a world of open access (OA). Many people still vigorously debate whether OA will result at some point in library cancellations of journal subscriptions. Theoretically, if all journal articles are freely available on the Web, why would a library subscribe to a database containing them? Sounds rational enough, enough to cause any thoughtful publisher to 1) resist OA or 2) accept OA and find a way to build a business on its back with customers you already have ...

Publishers are doing both. In addressing their admittedly different but pretty much parallel challenges to copyright control, so is Hollywood (see Lawrence Lessig's OpEd piece in the Washington Post. At last, so it the music biz.

I don't believe that resistance will thwart OA (or remixing, or p2p file sharing). OA has such obvious advantages for the "progress of science and the useful arts" to borrow a line from the Constitution. Nevertheless, resistance slows it down long enough for the new business models to start to take shape. Far from saving libraries money, however, OA is going to be a gold mine for publishers who can offer brave new services built on the treasure trove of high-value articles that are going to be out there free for the taking.

Is this a bad thing? Certainly not. It's the American Way (at least), and libraries will buy the services (rent the services actually), and prices will continue to spiral like they always have because that too is the American Way. If you are not growing (profits) you are dying.

Debate about this seems academic at this point. While I'm not that concerned about the future of Hollywood or the music biz, I do care deeply about the future of scholarly publishing and I applaud those at the helm of our University Presses who spend as much of their time as possible concentrating on new business models, not just debating whether OA will cause subscription cancellations (or whatever else it might cause). We have to figure out, like Wiley-Blackwell (and Lucasfilm and EMS in their worlds), what we can do to take advantage of this new OA, socially networked world of digital scholarship, either as businesses, or as more integrated parts of the institutional framework -- whichever works.

To follow up on Georgia's post yesterday about the Computer & Communication Industry Association's FTC complaint re "fair use," the CCIA has posted a copy of the full complaint. It is worth a look I believe, at least to see how technology giants such as Google and Microsoft have committed themselves on paper to the principles of fair use. The complaint contains examples of what the CCIA regards as improper "copyright warnings" used by media and print content providers, as well as what the CCIA regards as more accurate statements on fair use rights, such as the language used in the Nimmer copyright treatise.

The Library Copyright Alliance also submitted a letter in support of the CCIA complaint. The LCA is composed of the American Library Association, the American Association of Law Libraries, ARL, the Medical Library Association and the Special Libraries Association. So, it is good to see the major representatives of the profession join in the fray.

While I have no idea how the FTC will view the CCIA complaint, it is at least generating considerable media attention which should heighten awareness of the fair use concept in the broader public.

Mark Cooper has posted a short research note, Music Downloads - A Victory for Consumers and Artists at the Stanford Center for Internet and Society. It refers to music industry data to make the case for the victory it describes. Of course, the music industry would probably draw other conclusions from the same data. But it seems fairly clear where the trajectory is going, and that copyright can indeed play less of a role in the future than the industry thought it had to. In other words, controlling copies isn't as critical to making a living as a musician who wants to sell recordings as the industry believed.

Cooper points out that we're not through yet; this is just a milestone he reports, but again, the direction seems pretty clear.

YouTube seals UK music royalty deal -- a short quote:

The agreement to license 10m pieces of music to YouTube - in exchange for a flat fee which has not been disclosed - is the first of its kind, said Steve Porter, chief executive of the MCPS-PRS Alliance.

This has been awhile coming, but many scholars and organizations like Electronic Frontier Foundation have been advocating it for years. In fact, EFF has just published a report on 4 years of RIAA lawsuits against consumers (predictably unsuccessful if the goal were to reduce p2p usage or stem the tide of consumer rejection of the recording industry's business model recalcitrance) in which they, again, suggest that there's another way. For a look back at some of the proponents of alternatives such as this YouTube deal, see, for example, the EFF Report, Neil Netanel's NUL proposal, and Terry Fisher's book, Promises to Keep.

At the heart of all of these proposals is the simple idea that trying to count copies, control copies, and pay for copies in an age when copies are ubiquitous is, well, it's crazy. P2p and the host of other ways people make and distribute copies can be taken as a given and we can still find ways to compensate copyright owners. In fact, these proposals argue more or less that we have to find other ways. The UK-YouTube deal might show the way.

A couple of months ago, I noticed a tie-in between the publishing industry's future and the introduction of the iPhone reported at Print is Dead, and posted an entry here on the subject (What publishing can learn from the iPhone). Today, following Wednesday's big announcement by Steve Jobs that he's slashed $200 off the iPhone price and introduced WiFi ready iPods (just Google it), the opportunities for the publishing industry to jump on the train to the future continue: Apple Saves The Publishing Industry | Booksquare.

All the positive motivation is there, as rigorously detailed at Kassia Kroszer's post (Booksquare). In fact, Kroszer's points directly respond to complaints librarians like Karen Coyle are making about the unavailability of Internet in the stacks (I hope libraries are listening). But the stick is there as well, as noted at TechCrunch in connection with the announcement that Amazon and Google will be entering the ebook business:

Like the iPod, the key driver of sales of the [Amazon Kindle book reader] device won’t be the depth of content available on the associated service, but the availability of pirated, free content on BitTorrent and other P2P networks. eBooks are coming, but they’re not here yet.

Wake up! Smell the Starbucks (where you can WiFi music directly to your new iPod now...). Copyright owners can wrap themselves in their copyrights and drm themselves into obscurity, or they can find a seat on the train. It will be different, not relying on controlling access to everything, undeniably, but I think that's the future -- for music *and* for publishing.

The story about the NY Times closing down shop on its 2 year experiment in selling access to content has been reported all over the blogosphere, from many different angles. It is a rich story, really, and does in fact have much to say about what's happening in the business world of the Internet. The if:book report reflects the change from a publisher's having confidence in the power of its own brand to draw in paying subscribers to its having confidence in the power of Internet search and advertising to draw in far more dollars in the long run: if:book: all the news that's fit to search.

I agree that the power of search makes dollars and sense. But I also note that this particular strategy places copyright's *exclusion" right, it's reliance on exclusive rights to motivate creation, a little further down in the hierarchy of what one needs to succeed in the online world. Or, put another way, if you play the copyright card front and center, you ignore a lot of other cards that are ultimately of more economic value.

We are finally beginning to get the idea that control over copies isn't the only way to exercise one's copyrights. Sharing actually works, economically. It also makes a lot of sense that advertising would be the liberator. It's under our noses all the time with television. But surely it's not the only alternative to controlling access and counting copies. The world of all advertising, all the time has its own downsides. Nonetheless, it's encouraging to see major publishers leaving access control behind.

Bill Patry, in reporting on a case involving the issue of which version of a screenplay to compare to another work to establish the similarity of an infringing work to the work it supposedly infringed, The Patry Copyright Blog: And in the end, touches on a matter of great importance to all creative enterprises: the implications of "intermediate use" as fair use.

Intermediate use was established in software cases in the 90's (Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527 (9th Cir. 1993). For an interesting discussion of the Sega case and a later case also from the 9th Circuit, see Robert Donahoe's article. This concept that intermediate uses are fair means that software engineers can make a copy of a work for the purposes of getting at the ideas inside it, for example, for reverse engineering software. In the end, the new software, when compared to the original, must not infringe, but it's ok to have made a copy in the first place to borrow that which is legal to borrow.

This idea is not limited to software. Patry indicates its usefulness in the film case he reviews above, but also comments generally that the principle allows us to start with another work and use it as we like, so long as our final version of our work borrows only that to which we are legally entitled. This would include ideas of course, but also bits and pieces that would constitute fair use. Making intermediate use of others' works is a staple in the art world, in music, and increasingly, of all forms of creativity on the network. If you Google 'intermediate use,' you'll find many examples of cases that support its status as fair use in a wide variety of contexts. This is another example of the expanding understanding of the vital role fair use plays in the creation of new works.

On the other side, however, there are still vast holdouts against the idea that fair use is vital. Patry references sampling in another blog post: Amen Brother). The video he links to explains both the importance of fair use to the music industry, and the erosion of protection for it in the last 10 to 15 years. It's well worth the 18 minutes that it takes to listen to the video (yes, listen to... it's not much visually, but really tells an important fair use story).

So, Apple has lowered the price of its DRM-free tunes to .99: Apple lowers price of DRM-free iTunes songs - Digital Life - MSNBC.com, and *not* in response to competition from competitors such as Walmart and Amazon that sell DRM-free tunes for even less than .99 (uh-huh). So where does that leave DRM-burdened tunes?

I did note a couple of days ago that DRM-free doesn't mean the same thing as downloaded from p2p or ripped from your own CD -- there is a license when you buy a DRM-free tune and it allows copying for personal use, but not for sharing. This story at the Seattle Times contains excerpts from both the Apple license and Amazon's license.

So the licenses say you can't share. This should come as no surprise. Honestly, I don't think the record companies need to say this, but they think they need to say this, and it's probably the only way that they could be persuaded to step into this arena at all. Ultimately, if they learn (as I think they will) that digital without DRM sells well, eventually they'll also learn that sharing need not be the death of music. Baby steps. At least they are walking now instead of barring the door and resisting all attempts to get them to join their customers in the digital world.

And what does this have to do with mass digitization projects? I have just begun to write a paper at Mass Digitization ~ changing copyright law and policy in a CommentPress blog that allows commentary paragraph by paragraph (so *you* are invited to come over and participate), and the subject of the paper is the effect of mass digitization projects on copyright law and policy. Apple, DRM-free music and the Creative Commons (among others) are all part of the story of why mass digitization projects are actually not having much of an effect at all! Google provides a notable exception, but for the most part, business models are evolving forms that tend to place copyright further into the background, behind contracts, as noted above, and more positively, behind other ways of generating revenues than controlling, counting and paying for copies. And that's what copyright law is about, or at least, that has been the primary way copyright owners exercised their exclusive rights for the last 200 years. If control over copies becomes irrelevant, does copyright law become irrelevant? That is a very interesting question. I'll be exploring it over the next 6 weeks, and invite you to explore it with me!

So says Andy Oram at O'Reilly Radar, Music industry association recommends flat-rate file sharing. He's talking about a rumored proposal by the Danish equivalent of the RIAA and MPAA combined, that is, the International Federation of Phonogram and Videogram Producers, to allow unlimited file-sharing for a monthly fee spread across all users of Internet Service Providers.

This idea is not new, of course. Neil Netanel wrote a proposal several years ago calling for the NUL (Noncommercial Use Levy), and outlining all the potential problems with it. Terry Fisher wrote an entire book on the subject of how to fund the music industry without charging by the song/album, Promises to Keep. But this is the first time that an industry organization has seriously (or at least is reported to have seriously) accepted that this might be a better system than what we have now.

Oram's short post includes several other observations about DRM, competition and the differences between how the European Union and the U.S. deal with both. Good read.

It is more than a bit confusing how the major labels can all have recognized only recently that DRM failed as a business model in connection with sales of tracks, and simultaneously have finally embraced p2p supported by advertising, but with DRM: Major Labels Allow P2P Music Sharing on QTrax | Listening Post from Wired.com. Why would they think that DRM would work in this context when it has failed so thoroughly in the non-p2p context? Just when it seemed that they were getting it together...

But, DRM aside, as many people probably know, scholars have long suggested that other revenues besides those tied to sales of copies were fully capable of compensating artists and distributors (but then, isn't that word just about to the point of being an oxymoron here?) for their contributions to a finished music product or experience. Terri Fisher's, "Promises to Keep," and Neil Netanel's NUL (Nonprofit use license) are two examples. See also Rob Kasunic's thoughtful analysis of The P2P Problem on Stanford's Fair Use site.

But, questionable reliance on DRM aside, this is pretty amazing. The text of the Wired article, "Major Labels Allow P2P Music Sharing on QTrax," admits they tried a dumb, 10 year-long experiment and it failed miserably, but they felt compelled to do it, and now they want to move forward. "Oh, whoops. We were wrong. P2P isn't all bad. Now come play with us." One of the comments sums up how perhaps many people greet this generous offer:

What the heck?! The Music Industry could have made a deal like this with Napster years ago and could have been rolling in so much money they wouldn't know what to do with it, but no they had to go and kill Napster and tick off millions of music fans in the process. I think this is too little too late for the RIAA. They've burned too many bridges in recent years. Their days are numbered.

DRM? No iPod support? Count 99.9% of the market out then, guys. What a joke. No different than other subscription services - the main difference is that the bandwidth cost is lower for QTrax and the labels because the CONSUMER is paying for the bandwidth - on their own broadband lines! What an insult.

So, it's good news certainly, but is it too little too late for the labels? And what is the role of copyright in the future of media if business models really do turn to forms of payment that don't seem to need to exploit a monopoly? Very interesting!

No need to comment really: Sony BMG Plans to Drop DRM. DRM is history in the music biz. Now for books and movies.

Well, it's more than a bit odd for a company to jump the gun as seriously at it appears that Qtrax did yesterday (see my post from yesterday, just below this one), according to this follow-up article, Wired News - AP News, and it may only be a matter of time, as Qtrax' president suggests, but still, the degree of misrepresentation throws the company's entire story into doubt...

Yahoo! announced today that it will be supporting Semantic Web and microformats to improve search results for structured data (as reported in ReadWrite Web: And Nerds Became Kings: Yahoo! to Announce Semantic Web Support - ReadWriteWeb). The Semantic Web has been a dream of Tim Berners-Lee for a long, long time, and up until now, pretty much way behind schedule because it just seemed, well, too hard. Things are changing.

They always do.

You know how RSS allows you to get feeds from your favorite blogs and other newsy Websites? That functionality is one example of how we are able today to break the offerings on a Webpage up into small parts and send them zipping around the Web. The text is separated from the formatting on our page, the way the text is displayed isn't carried around with it. That enables a snippet of our text, maybe the first paragraph for example, to be displayed by someone, anyone who subscribes to our feed.

Semantic Web potentially micro-bites the content even further -- into little bits that are identified as to precise type: this part is a last name; this part is a first name; this part is a phone number; this part is a set of key words; this part is an abstract, etc. People might tag text down to this level to enable its extraction and manipulation, its readability by computers (see Michael Jensen's article, The New Metrics of Scholarly Authority, about the importance to Authority 3.0 of being computable); its reorganization for other purposes. It gets treated like data rather than information or knowledge (don't let's debate what those things are just now).

What might this mean for copyright policy and practice? Wow, it just sends the mind reeling. I can't begin to imagine the implications, but one thing seems clear: a Semantic Web has the potential to further dramatically reconfigure the relationship between copyright owners and those who wish to access and use their copyrighted works. Implicit in the markup for computer recognition, extraction and manipulation is a license to actually do those things. Atomized text and images, sounds, audio-visuals. Wow. Might a whole new round of fear and loathing be right around the corner? Or will this just add to the steady pressure on copyright owners to open up their works to use and reuse -- if they want attention at all?

Are you a little bit curious about Second Life or maybe you're there more than you're here (or somewhere in between) and not coming to DC this year for the CIP Annual Copyright Symposium? How about we meet in Second Life for the Symposium? Check it out!

This is a first for the CIP, so, even though I am coming to DC, I decided to take advantage of the opportunity to learn a little bit about SL in an environment that is geared towards education. The New Media Consortium is CIP's partner in this event, and the CIP's Symposium will take place at NMC's Conference Center in SL.

So, I'm going to plan to visit the Conference Center sometime during the Symposium, probably on Wednesday after my talk. I am not a frequent visitor to SL. I have an avatar, for example, but I don't spend money in SL (gasp). So, no island, no fancy house by the beach, no spiffy clothes. Well, that sort of suits me anyway. I'm not a clothes horse even in first life. But I do like the occasional trip to the beach. And gardens. I love gardens.

I found this gem just this morning.

It's funny how things connect up. Since I returned home from the CIP annual Symposium on UMUC's campus, I've been reading the copyright news with little enthusiasm. I see important things going on (like the brewing ACTA storm), but I am not inspired to comment. I just seem to bounce from one discouraging topic to another. Then this morning I was clearing out some email and noticed a message with a link to an Atlantic article, The Atlantic Online | July/August 2008 | Is Google Making Us Stupid? | Nicholas Carr. The article is about the way technology can affect the actual wiring of our brains. It is fascinating reading. I really enjoyed it and I'm sure you will too. About half way through, I came across this paragraph:

When the Net absorbs a medium, that medium is re-created in the Net's image. It injects the medium's content with hyperlinks, blinking ads, and other digital gewgaws, and it surrounds the content with the content of all the other media it has absorbed. A new e-mail message, for instance, may announce its arrival as we're glancing over the latest headlines at a newspaper's site. The result is to scatter our attention and diffuse our concentration.

Google Book Search is about absorbing the medium of books into the Internet. I was just talking with the new Deputy General Counsel at UT System Monday, Dan Sharphorn, about the future of books (one of my favorite topics) and especially, how that future will be funded if books are available for free on the Internet (that is, digital copies are free, but people pay for something else, such as a print copy, or maybe a subscription to a book service (like music subscriptions), or who knows what). That part of the discussion is very much about the subject of the talk I just gave at the CIP Symposium (Mass Digitization's Effect on Copyright Law, Policy and Practice), about the economics of copyright. But an equally interesting part of the discussion is recognizing that when you think about the future, it's not the assumptions about what new things (like new business models) will be there that are the hardest. Rather, the really hard part or tricky part is examining your assumptions about old things, specifically what old things won't be there.

If (well, when) the Web absorbs the medium of books, books are not going to stay the same. The idea of an e-book is pretty limited (and even that is overwhelming for some of our publishing friends). The idea of an e-book reader is pretty limited. If you eliminate the idea of a book as we know it from the possibilities for communicating with others, and then try to imagine how you would weave a story if all you had were the Web, just try that for a momentary thought experiment... How would you tell a story? And how would you relate the results of research if all you had were the Web and no idea about a thing called a journal article. (And don't just "invent" the journal article and the book all over again -- that's not what the experiment is about!)

I have been thinking about this in the context of expressing whatever research I do for my dissertation. I can't really think in terms of writing a formal 5 chapter paper thing that resides between two harder paper things called covers. On the other hand, I am very inspired thinking about how to make my research a part of the conversation on the Web, how to take advantage of what the tools offer, what the possibilities present. At some point, if I really want the PhD, all indications are that the profession (information studies) will require me to cull some small part of that and sandwich it between those covers. I am spending the summer thinking long and hard about that.

And what of copyright? How else might we encourage creativity if we just put aside entirely the idea that we "need" government intervention to encourage it in a world with friction-less world-wide distribution, where each of us helps to pay for the distribution system by our purchases of computers, software and Internet connectivity? James Boyle gave our opening keynote at the CIP Symposium, and enumerated and evaluated five criticisms of copyright law as it exists now, how badly it "fits" the Web 2.0 world. Keeping in mind how the Internet is changing the media it absorbs, is copyright likely to fit better in 10 -20 years or much, much worse?

The Atlantic article ends on a sort of cautionary note: "as we come to rely on computers to mediate our understanding of the world, it is our own intelligence that flattens into artificial intelligence." Author Nicholas Carr is trying to see the future of our minds in a world dominated by the ideas that are shaping the Internet experience, in particular, Google's ideas of science applied to efficient information organization. A very scary undertaking, seeing into the future, but one that we've never been able to resist.