It was a lot and will take a bit to post here, but late last night, I did finish the question (below under "more") that was the most interesting....
This topic is not central to our bIPlog, which is about IP, but I have written a small response to the earlier post about online publishing and emergent democracy, and the idea that as a network grows, attention is paid to fewer and fewer nodes. Essentially, I document a little of my process, and relate how using a feature at Technorati.com might rebalance a little the growing network problem in keeping the formation of conversations fresh in the blogoshere.
The lawyer for Google asks wordspy to, "help us to protect our brand by deleting the definition of "google" found at wordspy.com or revising it to take into account the trademark status of Google." Wordspy chose the later, with this addition: "(Note that Google™ is a trademark identifying the search technology and services of Google Technologies Inc.)" to their "to Google" definition. But Frank Abate notes:
"Of course google is used as a verb. And why not? It only makes sense, it is short, it is fun, it works. And what the Google (TM) lawyer knows, but does not say, is that the company he represents cannot do anything about its use as a verb, legally. They cannot sue, as one cannot claim proprietary rights to a verb. Jesse Sheidlower recently pointed this out to me; apparently it is an explicit part of US law re trademarks.... In short, Usage trumps Legality, in this instance, at least."
Since the issue with trademark generally is to protect consumers from the confusion caused by a similar or exact same name being linked to somewhat similar services or products, it would seem that this use is not a trademark infringement because using the verb, to google, refers to Google's services, and does not represent any other service, product or meaning. This is simplistic, I realize, but you get the point. And the context at wordspy is to define the verb, not name a service or product they provide.
Here is CNet's take.
Roxio, purchaser of the Napster assets last Fall, is resurrecting Napster (their site says "under construction"). From Europemedia: "Roxio plans to profit where above-board music download services like the music industry's antiseptic PressPlay and MusicNet websites failed by ensuring it has agreements with all the record labels and access to the bulk of their catalogues before launch."
Shawn Fanning will consult, and they will offer per-track songs as well as subscriptions but not before they close deals with the likes of Universal Music Group, Sony Music, Warner Music Group, Bertelsmann AG and EMI. "The record labels know we want to do this the correct way and the legal way," said a Roxio spokeswoman. "And it will be top-tier content, not unheard-of bands you see now with most of the subscription services," she added.
How disappointing. One of the great things about online content is the ability to market, at very little cost, new bands. Napster might do better using this opportunity to expose new talent to the public than what currently exists.
AOL is also starting a music sharing service, trying various pricing models such as streaming/downloading for $8.95/mo (with no copying? has anyone seen AOL's security track record?), or, in typical AOL form, they will charge $17.95 per month for the right to burn 10 songs onto a CD. Reminds me of their dialup service. They don't call it almost on line for nothing. Hopefully users will see that for 10 songs (with no store, no packaging, no pre-burned cd), they should pay a more reasonable price.
[Updated 022503, 8:59am: Corrected misspelling in author's name.]
Donna Wentworth at Copyfight has an interesting synthesis of conversation going on Declan McCullah's copyright legislation article on News.com, and JD Lasica's response to Declan. Declan thinks that rather than Wyden and others proposing new "fair use" legislation to make the DMCA more consumer oriented with labeling requirements for DRM protected products, those sections of the DMCA that restrict too much should be repealed. JD says that even if it happens, which he believes it won't, those same interests with a stake in the DMCA will continue to find new ways to use DRM to restrict the flow of information.
Meanwhile, the NYTimes says that Jack Valenti is taking the moral high ground in a speech he was to give at Duke Law School. "He plans to shift his emphasis to more basic principles: 'duty, service, honor, integrity, pity, pride, compassion, sacrifice....'" Dave Winer notes the moral hypocrisy with that, where the artists who so generously sacrifice rarely get compensated....
One interesting thing Declan mentions is that the consumer electronics industry is the target again with labeling of products. Considering that they are a $500 billion a year industry (which includes universal garage door openers and printer cartridge refill companies but also DVD and CD makers), being pushed around by the RIAA/MPAA content industries at $40 billion a year, you'd think that the electronics people would be able to fight this more than they appear to now. "Talk about the mouse trying to own the elephant herd." Seems more like greed, unfairness hiding behind the law, anti-trust violations, failing business models... are at work, to name a few.
"The DMCA started with the noblest of intentions, but it is becoming the bright shiny new toy of enterprises looking for a way to stifle competition and to control what they might consider unfavorable information," said Mike McGuire, a policy analyst with research firm GartnerG2. This, from the LA Times, gives a good overview of DMCA issues, along with a review of some of the cases where the DMCA has been used to shut down competitors, satirizers and anyone else that brushes up against an incumbent business with some sort of complimentry service or product.
Since we are rapidly approaching a time where every device, every printer cartridge, every information tool will contain a chip or sensor of some sort, either for inventory or interoperability control, this issue is bound to get far worse, as incumbents look for ways, in uncertain and very competative times, to keep customers and profit margins from competitors. The long term disadvantages for the public and new business technology innovation should be obvious.
Thanks to Lawmeme for additional info.
The WSJ (sub. req.) (IP reprint) and CNet report a new venture by Pieter Plass, a Dutch construction CEO and owner of PGR BV (a software company). His new company, "the Honest Thief," will help the next KaZaa or Aimster start file sharing, in order to make "some honest money," where they "hope The Honest Thief will become to file sharing what the Swiss are to banking." He created this company based on the ruling last March by a court in the Netherlands that said P2P file sharing, and KaZaa, were legal. The decision is under appeal.
Apparently another company, Transparency Software LLC (US) makes software that blocks P2P file sharing of copyrighted materials and is also considering starting a P2P biz in the Netherlands, but they would also not share anything that is unauthorized.
While these companies may be clever in exploiting differences between national laws and the state of P2P file sharing, I can't help thinking this is a plan B, where in lieu of the music industry recognizing the huge media market (50 million downloaders!) placed before them, prime for the taking, their efforts have caused a situation inviting all sorts of crazy small work-arounds. There is a simpler solution: the RIAA/MPAA etc. could accept some piracy as a cost of doing business, and start the real business of file sharing content consumers want, most of whom will pay for it, if it's simple, good, and reliable.
The New Scientist talks about "word bursts", which Jon Kleinberg at Cornell has been researching. Apparently, he's developed an algorithm to find bursts of words across documents, that might be used to identify trends in weblogs.
Dan Silverstein mentioned to me that while the specific technology might be really interesting, it's really hard to have a picture, or many overlapping pictures, of the entire Internet, in order to scan so many weblogs and find bursts of particular word activity, so this may take a while to solve. But one idea might be to target particular blogs by subject or reputation, in order to scan for particular word bursts.
At the Digital Rights Summit a couple of days ago, Howard Berman said in an interview that he might not reintroduce a revised version of his Internet Piracy Bill. "Realistically, a bill like this isn't going to zip through Congress," he said. Apparently, Hollywood doesn't like the parts of the bill that would impose penalties for copyright holders who, through what they call "self-help" measures, go too far in fighting piracy. Presumably this means hacking too far into some file sharer's computer? And getting caught. You'd think the fear of bad publicity alone would make it unpalatable, but supposedly they don't want the liability either. "And if they're not for it," Berman asked, "where am I going?"
The NY Times reports that ClearChannel has consolidated to such an extent that in emergencies, their radio stations don't even have people there to run the emergency broadcast system.
"Senator Byron Dorgan, Democrat of North Dakota, had a potential disaster in his district when a freight train carrying anhydrous ammonia derailed, releasing a deadly cloud over the city of Minot. When the emergency alert system failed, the police called the town radio stations, six of which are owned by the corporate giant Clear Channel. According to news accounts, no one answered the phone at the stations for more than an hour and a half. Three hundred people were hospitalized, some partially blinded by the ammonia. Pets and livestock were killed."
Today at the Digital Rights Summit held at Intel but organized by Digital Consumer.org, Joe Kraus, one of the founders, introduced the Summit saying that the ability to freely innovate is endangered with protected systems, and SV is under threat with something unable to be seen: over-applied copyright. The first unintended consequence of the DMCA and copyright is that we no longer ask the question, is something fair use? We ask, is it anti-circumvention? The second unintended consequence is the use of copyright to stop innovation and consumer fair use.
Hank Berry at Hummer Winblad, as well as Senator Ron Wyden, Bill Aho of ClearPlay, Greg Ballard of SONICblue, Skip London of Static Control, David Djavaherian who represents Skylink, Congressman Howard Berman, Congresswoman Zoe Lofgren sat on a panel discussing the unintended consequences for business of the current digital rights/IP situation.
Key points: New ventures don't get funded because of IP problems. ~ Berry
Defending SONICblue costs $3 million a quarter, which could be spent hiring 120 people to innovate. ~Ballard
None of this is as important as health insurance or the economy. ~Berman (Continued key points here.)MORE...
Go with the flow, man. And get crackin! Profits are down for RIAA type record companies, but hey, Smithsonian Folkways Recordings is making bank to the tune of a 33% increase in profits this year. They use recordable CD's, or CD-R's to copy their catalog, thereby ensuring that their extensive catalog never hits the dust bin. They've been doing this since 1996, creating a "just-in-time" model for delivery. (Every time they get an order, an employee makes 5 copies, one for the order and 4 for future orders.)
With 2,168 titles dating to 1948, they cover works from Pete Seeger and Phil Ochs to "Music From Western Samoa: From Conch Shell to Disco" (1984) and "Folk Songs of the Canadian North Woods" (1955). They are also trying out small runs of CDs, of which their first, "Bells & Winter Festivals of Greek Macedonia," was so popular, they put it into the regular retail catalog.
So, what are the rest of those less-than-hip record companies waiting around for? Hop to it! Make love, not war, with your (netgen, filesharing, the internet-is-an-environment-not-a-tool) customers!
Mike Myers has signed a deal with Dreamworks to "film sample" various film clips, inserting himself into them while recombining and reusing existing film, to tell new stories. However, if you would like to sample, and share your work, you too might have to make a deal with a big-time company motivated (and well funded) enough to clear copyright and make the necessary deals allowing you to play with film the way people make Madlibs (or try this interactive site). That is, if you want to show your work to anyone besides friends and family, in analog, in your living room.
Even then, the technological hurdles for now are mighty, and most people who might like to play with sampling are probably deterred over the difficulty of the process. But, if this were to become something film copyright owners were willing to license or share through fair use, an industry might spring up allowing the man on the street to make something like Dead Men Don't Wear Plaid in an easy, simple way. Or maybe just make an email greeting of themselves as the Terminator.
As the nation goose-steps backwards with a frightening sense of inevitability toward the war we fought in 1990, and hurtles at relativistic speed toward the black hole of the voodoo economics policies of the 1980s, one might wonder if something is amiss. And, indeed, something is wrong in the cosmos; the rule of threes is unsatisfied! Fortunately, as Ross Anderson's quote in this article suggests, Microsoft's Palladium will complete the turn-back-the-clock trifecta by causing the torrential information free flow we have today to revert back to the pre-Internet boom trickle of the 1980s.
Thanks to the fine folks at Slashdot for bringing the article to my attention.MORE...
Clay Shirky writes about how movements on the Internet tend away from democracy, over time. As blogging expands, newcomers are at a disadvantage publishing because established blogs are more heavily weighted because so many already link to them. And Ross Mayfield as well has something interesting to say about emergent technologies. Blogging as a style of information flow is like being at a conference all the time, but instead of saying something or asking questions in a room with 300 people, in person, the discussion is quieter, even if 300 people are listening in.
Google buys Pyra, and Dan Gillmor says "The buyout is a huge boost to an enormously diverse genre of online publishing that has begun to change the equations of online news and information," in his blog column.
Cory Doctrow speculates on Pyra and Google, or Gbloogle, and then reprints Matt Webb:
"GOOGLE ARE BUILDING THE MEMEX.
They've got one-to-one connections. Links. Now they've realised - like Ted Nelson - that the fundamental unit of the web isn't the link, but the trail. And the only place that's online is... weblogs.
There are two levels to the trail:
1 - what you see
2 - what you do
("And what you feel on another track" -- what song is that?)
And the trail is, in its simplest form, organised chronologically. Later it gets more complex. Look to see Google introduce categories based on DMOZ as a next step."
Vannevar Bush (1945) explains the memex here:
"Consider a future device for individual use, which is a sort of mechanized private file and library. It needs a name, and, to coin one at random, "memex" will do. A memex is a device in which an individual stores all his books, records, and communications, and which is mechanized so that it may be consulted with exceeding speed and flexibility. It is an enlarged intimate supplement to his memory."
Or, "Some bands want you to swap music files over the internet." This from the Guardian, and Ben Hammersley, who compare MP3s to the kiss mentioned above. Instead, live concert recordings are much favored by some. Bands like The Dead (who has long allowed non-commercial trading of show recordings) and Phish let fans DAT tape the shows and then share CDs, using a file format called Shorten, on a person-to-person basis. Fans also trade CD's via websites like www.etree.org from bands allowing more than person-to-person sharing, but apparently, it's all pretty low-key. Even Clear Channel is apparently offering their services to bands who want to sell CD's of the performance they just attended, 5 minutes after the show closes.
"And there lies the rub. For bands whose main audience is the live one, allowing fans live recordings of the previous night's show could be a winner. For the more possessive record labels, it's a potential nightmare. When stadia could shift 20,000 CDs in an evening and provide free advertising for the rest of the tour, it is so potentially lucrative, it might just be the one that forces labels to reconsider their policy towards file sharing." Couldn't have suggested it better myself.
321Studios offers a reward for anyone caught for making illegal DVD copies using with their software, DVDxCopy. This was announced with the "launch of their new DVD Piracy Prevention Program." They've established hotlines and everything: AntiPiracy@321studios.com, and the 321 Studios Piracy Prevention Hotline (636-728-0297). Cute! 321 Studios is getting so proactive about fighting those baddies Rick McCallum thinks they are on par with terrorists, eventwise!.
The Boston Globe Mag looks at Google and the way it has changed our expectations about finding information, especially about each other (my bIPlog activities come up first in searching my name...). As things become more transparent (go to anybirthday.com where any hopes of lying about your age end there), people face themselves in arenas they weren't expecting, where having been Googled, they are confronted by their past, or worse, totally dismissed. In person, we consider more easily how people grow or change over time and are human and fallible, especially in youth. But the Internet and Google remove us from each other, altering what sociologist Erving Goffman calls, the "right and duty of partial display" in social situations. The other side is the Googler admitting they found information on the web about a person they know. And who wants to seem like a paranoid snoop, so the result is silence. And the social and privacy contract is altered in a very strange way.
And the question comes to mind, is your digital identity your personal intellectual property? Is your Google identity yours or someone else's? And by extension, is your clickstream a personal expression (carefully chosen and shaped by you)?
There is the tension between privacy, and the fact that we have such piecemeal protections in the US, and the idea of getting used to a certain amount of transparency. "In time, we will adjust. 'People get used to invasions of privacy,' Jonathan Zittrain says." But since we don't have comprehensive privacy protection like Europe does, people in the US are at somewhat of a disadvantage, where we must be the gatekeeper of our information, and think about where the information will go, beyond where we release it. Being technically savvy is a minimum requirement for this, and that leaves a lot of people out.
The IEEE IP Committee has asked Congress to re-examine the DMCA because of two recent cases, Elcomsoft and Ed Felten, as well as members' concerns about the chilling of innovation and research. The IEEE wants Congress to review and clarify when encryption research can be published and discussed as protected under the DMCA, and to give ISP's direction in how the "notice and take down" section of DMCA should be handled when a customer posts something in question that may be under copyright protection. Sometimes the ISP's get excited and remove the whole site, when in fact only a page or small amount of the content is in question.
"The position statement just establishes that there is a problem," Tenney says. "We don't know which solution is the best but we want Congress to look at it."
This explanation of why DRM matters, what it is and how it works, from a content owner/publisher point of view is worth considering. A couple of important points in their attempt to define and understand DRM:
¶ DRM is "Technology that describes, identifies and protects digital content". To this could be added, "protected by intellectual property rights and in accordance with rules set by rights holders or prescribed by law".
¶ The three essential elements can then be deconstructed as:
1. Description - knowing what the content is and how it can be used;
2. Identification - of how, and by whom it can be used;
3. Protection - encryption or other measures to ensure legitimate usage.
¶ This definition also combines two concepts that are often considered separately: the description & identification of intellectual property and the rights relating to it (Rights Management) and the technical protection (and/or enforcement) of usage rights (Management of Rights).
These seem simple. But each point brings up a subtle distinction between controlling the usage-rights implementation verses the right-to-control-the-copyright implementation, as protected by law. When we talk about DRM, it is usually in reference to one part or the other, where the speaker may refer to one side of that equation, while the listener is paying attention to the otherside of DRM. But DRM is about both, and each time there is a discussion, there needs to be overt consideration of each side of this equation, and even more complicated, the differences that exist around each of these sides of DRM.
"One of the most important things about the definition is that it recognizes that protection is a technical measure - not a contract or trust measure. From this it follows that systems that, for example, allows a user to download a chapter from a book with, on each page a statement that it cannot be copied, or a user agreement that says a paper from a journal cannot be stored electronically, are not DRM. It becomes DRM when there is a mechanism in place that physically prevents copying or storage."
Waddya know. And it's big media companies too: B&N, Penguin, Bantam Dell Publishing Group and The Modern Library (of Bertelsmann).
And thanks to Sonny Bono, publishers of public domain books no longer keep track of works going into the public domain, because well, they aren't getting new titles that fall out of copyright. "The first thing you'd do in classics publishing was keep a list -- a rolling schedule of what was going into the public domain," David Ebershoff, publishing director of The Modern Library said. "That was item No. 1. Now it's not only not item No. 1; it's not an item."
Software is usually purchased, and then plastic wrap and little white envelope with some additional licensing information printed on the seal are opened, to see what you've bought, and see the license. So (News.com says) Cathy Baker of San Rafael, CA has brought a class action suit against several software and resale companies, claiming (pdf) that their shrink-wrap license agreements unfairly forced buyers to agree to them without reading them. She suggests posting the licenses on the company websites, and in stores. But it's not all that clear what the damages are.
AOL/Time Warner is the subject of a Salon piece, "AOL's Jekyll and Hyde Act" discussing the Verizon case, where AOL has yet to say much, because as both an ISP and the world's biggest media company, they don't want to comment on a case they are not apart of, but might affect them. AOL has been asked to remove files from websites, after those "copyright-sleuthing bots", Internet scanners that look for files that "seem" illegal, based on "as little evidence as a filename that appears fishy, like 'MetallicaSong.mp3' found 'harry potter book report.rtf'" on an AOL hosted website. But AOL has never been asked to turn over a subscriber's name, by invoking sect. 512h of the DMCA, as recently happened to Verizon.
One reason AOL doesn't want to anger subscribers is that they already face losing a lot of customers to other broadband carriers. Also, the article speculates about AOL subordinating to Time Warner, the content side. But the most interesting piece is this:
"The ISPs get thousands of these things, and they get a not insignificant percent that are not just wrong but are spectacularly wrong," says Cohn of the Electronic Frontier Foundation. "And if the Verizon decision under 512h is upheld, we'll start seeing the same thing for people's identities, and they're going to be wrong in the same percentage that they're wrong now." That's because a key problem with the DMCA, critics of the law say, is that it provides little incentive for copyright owners to make sure that they're providing the court with accurate claims. "They may as well make these things as broad as possible," Cohn says. "There's nothing in the system to make them do otherwise. It's just takedown, takedown, takedown."
The NYTimes mag tomorrow is all about spam, with a big menacing spider image for illustration. ''Spam has become the organized crime of the Internet,'' said Barry Shein, president of the World, one of the original ISPs. ''Most people see it as a private mailbox problem. But more and more it's becoming a systems and engineering and networking problem.'' The FTC is interested in the deceptive practices of spammers, and opt-in/opt-out are discussed, but James Gleick's conclusion is that forged headers should be illegal, and all spam should carry a mandatory tag.
Declan McCullagh's Politechbot.com notes the latest in s.p.a.m. And according to Internetweek, s'p'a'm costs us $12bil / year and almost everybody wants it banned, but the s|p|a|m|m|e|r|s. Course, you could always donate your s+p+a+m to science.
Update: 2/12/02 From Wired, Spam Offers: Some Legit, Most Not where tests showed replying to s~p~a~m caused many, many more s^p^a^m.
And Spamarrest is resorting to, oh my, spam.
According to this Brookings Instititute paper, the answer is no.
John Mitchell at InteractionLaw writes about the possible antitrust problems for copyright holders and technology makers, when they create involuntary DRM standards to control content, and the backroom deals on control mechanisms between hardware and CD's.
Wired writes about the internal conflicts within Sony as a content provider and an electronics manufacturer. Apparently, the weakest part of Sony's entertainment business is the music division. The company wants to make the latest cool cutting edge stuff, but they are afraid of open, flexible standards in hardware that might put things further out of control, between what customers want and how much digital rights management to inflict on them.
Peter Coffee writes about copyright and the music biz, noting "the present-day business model of the record companies is a temporary artifact of a transitional stage in a developing technology."
Fred Von Lohmann at EFF has a new edition (Jan '03) of his white paper, "Peer-to-Peer File Sharing and Copyright Law after Napster" about the necessary aspects for creating a P2P prosecution-free network.
Because they can't be reading the applications too closely. How can they be issuing patents for the process of, gasp, streaming audio and video over the Interent, held by Acacia, as well as SBC Communications patent for frames used on websites (though there is evidence gathered to show prior art), Open Market's patent on web shopping carts, SightSound Technologies patents for selling downloaded music and video online, InTouch Group's patents for putting snippets of music on the web, and the most amazing one of all: Test Center's patent for creating a process to make "tests, assessments, surveys and lesson plans with images and sound files and posting them on-line for potential users." (Although Test Center is apparently thinking of selling the patent, they say they will enforce it if necessary.)
Well sort of. Microsoft is investing $500 million in DRM, hoping that by giving away the technology for free, they will make Windows Media audio and video the preferred formats, with both electronics and media companies, as well as consumers. MS worries about copy-protected CDs that won't play on PCs. But even electronics manufacturers and media companies apparently wonder whether MS has a real interest in DRM, or is just protecting the Windows monopoly. However, according to the article, Jupiter Research, "About 40 percent of 15- to 17-year-olds buying a CD in the last 12 months said downloading influenced their purchase; 28 percent had copied music from a friend." And it also mentions the paper published by some MS employees (see bIPlog post) saying, "DRM technology would likely fail because of consumer resistance to content protection and acceptance of file trading. The researchers concluded 'that a vendor will probably make more money by selling unprotected objects than protected objects'."
And the Internet Streaming Media Alliance (ISMA) just announced it is finishing the MPEG-4 standard for open review at the April convention of the National Broadcasters Association. This MPEG-4 standard will include DRM. The lack of DRM has been a problem for the adoption of previous MPEG standards, which are considered to be open standards, verses the Windows and Real media standards which are proprietary.
So is the moral quagmire for the digital rights manager whether to use a proprietary system or not, or just run with the market for downloading and make something people want enough to pay for that is simple to use and comprehensive in content, forgetting the DRM altogether? I guess you know what I would do.
The idea is to create a system allowing computers to understand the data on websites, making the data reusable as chosen by the systems themselves based on the meaning. To work, people would have to code their all websites and data using the standard. It may be far-fetched and a long way off, and people may never be willing to do this, but it is an interesting idea.
The EC allows music downloading in antipiracy proposal, where downloading for personal use is okay, but anything commerical would be illegal. It's only a draft, but the entertainment industry is up in arms.
Salon has a piece today called, "Embrace File Sharing or Die" written by John Snyder, president of Artist House Records, and his son Ben, of Gas Marketing/Management, a grassroots marketing company that serves the music industry.
About Eldred and copyright: "This is a clear case of a multinational conglomerate using its political muscle to the disadvantage of everyone but itself. So, instead of creating new content and allowing long-standing laws to work, the entertainment business frantically seeks to manipulate the process to its own ends. And it does this with the obsequiousness of penurious politicians and a supinely acquiescent Supreme Court. That is the best the establishment has to offer, and it has nothing to do with progress or the good of the society."
They call the entertainment industry on the current mess with radio and homogenization of content. They note the rising prices of CD's, bad economy and other better ways to get entertainment bang for the buck as reasons why CD sales have dropped and that EBay and Amazon have expanded their online businesses by paying attention and working with the internet, not against it, which the RIAA could learn from.MORE...