Donna on Fair Use

In Fair Use It or Lose It, Donna discusses the differences in perspectives on fair use between Siva Viadhyanathan and Larry Lessig, both of whom she saw at a reading at Stanford. Connecting the dots with Siva’s Fair Use in (In)action, she closes with the following points:

I see four main avenues for attacking the problem:

  • Fair use it or lose it. This is, I believe, Siva’s main point, and it’s important: on a personal level, don’t give in to the fear-mongering. Don’t be the person who asks Siva, Larry, or Cory Doctorow whether you can make fair use of their books.

  • Use and advocate the use of Creative Commons licenses, not only to make work available but also to help people understand in a tangible way that they are entitled to legitimate uses of creative works.

  • Fortify the fair use gatekeepers. Provide as many resources as we can for faculty members, librarians, systems administrators, school officials, DMCA-takedown compliance officers, legal counsel, etc., to take a stand against the bullies — not only when push comes to shove and someone files a lawsuit, but in the small, everyday ways that cumulatively alter our perception of what constitutes fair use.

  • Support and advocate supporting legislation that seeks to turn back the tide by providing affirmative protection for traditionally legitimate activities.

She solicits thoughts, and I hope to have some to add beyond Larry’s perspective. Related: the chilling effect of librarians

Book Reading and Other Declining US Trends

What it all means is a little harder to say, but the study has some striking correlations: Fewer Noses Stuck in Books in America, Survey Finds

“It’s not just unfortunate, it’s real cause for concern,” said James Shapiro, a professor of English at Columbia University. “A culture gets what it pays for, and if we think democracy depends on people who read, write, think and reflect — which is what literature advances — then we have to invest in what it takes to promote that.”

On the other hand Kevin Starr, librarian emeritus for the state of California and a professor of history at the University of Southern California, said that if close to 50 percent of Americans are reading literature, “that’s not bad, actually.”

“In an age where there’s no canon, where there are so many other forms of information, and where we’re returning to medieval-like oral culture based on television,” he said, “I think that’s pretty impressive, quite frankly.” Mr. Starr continued: “We should be alarmed, I suppose, but the horse has long since run out of the barn. There are two distinct cultures that have evolved, and by far the smaller is the one that’s tied up with book and high culture. You can get through American life and be very successful without anybody ever asking you whether Shylock is an anti-Semitic character or whether `Death in Venice’ is better than `The Magic Mountain.’ ”

[…] In the literature segment respondents were asked whether they had, during the previous 12 months, without the impetus of a school or work assignment, read any novels, short stories, poems or plays in their leisure time.

Their answers show that just over half — 56.6 percent — read a book of any kind in the previous year, down from 60.9 percent a decade earlier. Readers of literature fell even more precipitously, to 46.7 percent of the adult population, down from 54 percent in 1992 and 56.9 percent in 1982, which means that in the last decade the erosion accelerated significantly.

The Ever-Mutable DMCA

From LawGeek: Camera & Cell Phone Batteries = Next DMCA Frontier?

NEC announced yesterday that they are introducing “a new software for microcontrollers that detects counterfeit battery products in mobile phones and digital still camera batteries”:

“The growing number of worldwide incidences involving inferior counterfeit batteries is a considerable source of concern for manufacturers and customers alike. NEC Electronics’ authentication software offers a highly effective yet affordable solution to help detect such unauthorized products and prevent the damage caused by them.” said Kazuo Nakamura, General Manager, Device SI Division, NEC Electronics.

Preventing damage is one thing, but stiffling competition is another. Who’s to say that NEC won’t use this authentication as an excuse to sue “unauthorized” after-market competitors under the DMCA for making compatible replacement batteries?

Leaning into the punch?

From So sue me: Jon Lech Johansen’s blog, we get FairKeys

I’ve released FairKeys, a tool which lets you retrieve your FairPlay keys from Apple’s servers.

Instructions for MacOS X users:

1. Install MonoFramework-1.0.dmg

2. Start

3. curl -O ‘’

4. tar -zxvf FairKeys-0.2.tar.gz

5. cd FairKeys-0.2 ; ./

6. mono FairKeys.exe

MD5(FairKeys-0.2.tar.gz) = e40ae3c4c84302cf4e800fba36c77303

Some Letters

The Letters in response to the earlier Salon article (Salon’s Andrew Leonard on Digital Music) are well worth a read, irrespective of which side of the issue you are on:

Leonard seems to think that the recording industry has nothing to worry about because his own pattern (buying more music than before) is the norm. Well, it’s not my norm. I have pretty much stopped spending my hard-earned money on music I can easily get for free. And most of the young people I see wandering around only listen to music on MP3 players and ripped CDs.

Judging by my own experience, the recording industry is quite right to be petrified.

Good Lord, you would think one or two executives might think of trying anything different than sending teens and grandmas to jail in order to force people to drive to Target to look at a lackluster collection of tired CDs, most available at the neighborhood gas station. This is what passes for the industry’s 21st century marketing strategy, I gather.

Is there any entrepreneurial spirit still in the executive suites of BMG Music and Sony? Or do their V.P.s spend all their time writing legislation and figuring out ways to bribe their friendly congressmen to shove that legislation through Congress? What a bunch of visionless business-school losers.

The music biz tricks are counterproductive; putting decoys out to download means I won’t buy that artist again out of defiance. Since it’s generally a contemporary artist that does this, it’s no big loss to me, something new I just won’t try. Radio, too, is part of the problem; I am not the customer to the radio station, the advertiser is — I am the demographic they sacrifice to advertisers. So they put out a narrow playlist with appeal to the target demographic in broad terms. Lost are the novelties I might actually be into. I hear more new music in advertising (Dirty Vegas — yeah!) now than I do on the radio: Apparently marketing likes the same quirkiness I do.

Bottom line, the music biz needs to quit trying to use technology and the legal system against me to save its archaic business model.

If the recording industry, in its heavy-handed approach to eliminating piracy, wishes to trample the freedoms I enjoy as a new digital media consumer, they will surely be shooting themselves in the kneecaps!

I guess I feel for the RIAA and their war on consumer freedom/choice (the same way I feel for the neocons and their war on culture): A dinosaur on its way to extinction is a sad, sad sight, and who am I to fuss when it puts up an awful fight before disappearing completely?

Recapping Lessig’s <refrain> from The Future of Ideas

This PC World article asks some hard questions about the current spate of copyright legislation: Copy Crime and Punishment [via Current Copyright Readings]

The benefits of copyright law are easily grasped in its more direct expression: new music, movies, or other art for us to enjoy, which is what many of the proposed laws aim for, including Hatch’s.

But it seems to me that any law that limits progress by protecting existing copyright holders at the potential expense of innovation (on the part of future copyright and patent holders) goes against the whole point of copyright.

We can do better, and we should.

Some Articles on MP3 Distribution

All via ScriptingNews

  • Livewire: MP3 Blogs Serve Rare Songs, Dusty Grooves

    A new genre of Web sites that offer an eclectic mix of free music downloads may not be strictly legit, but the sites’ creators say they’re doing the beleaguered record industry a favor.

    Named for the MP3 music format and the popular self-published Web sites known as blogs, they are part online mixtape, part diary, and part music magazine.

    The tunes are drawn from remixes, forgotten genres and out-of-print albums, usually accompanied by detailed descriptions and reviews.

  • MP3 Blogs and wget

    Here’s an interesting equation: Most bands and labels are posting free mp3s of their latest music on their sites. Add to that an army of fans scouring these sites daily, then blogging what they find. The result is a constant stream of new music being discovered, sorted, commented, and publicized.

    But how to keep up?

  • Stop, hey, what’s that sound?

    The prevalence of cruddy 128 kbps music in the online marketplace demonstrates that the music industry still don’t believe in online distribution: It still don’t trust us, even when we’re paying for the music.

    The real issue for the recording industry has never been loss of profits due to piracy, because no one has ever proven that there is a direct connection between piracy and declining CD sales (in fact, quite the contrary). What the industry fears is loss of control.

You Must Be Kidding!

As a companion to their overall story on the poor performance of software sales in the last quarter, Software firms stumble in second quarter, CNet swallows this codswallop from the BSA: Software piracy losses double. While all this lost sales accounting is so suspicious anyway, it’s tragic to imagine that there are significant numbers of users who would be so stupid as to blindly accept and install P2P-distributed, cracked software — and that, if such fools existed, they would be able to do so at such rates as to affect legit sales before their computers are so compromised as to be unusable (not to mention, blocked from network access).

The Business Software Alliance blamed the rapid spread of piracy on so-called peer-to-peer networks, where Internet users illegally swap software and other files such as music for free or at discounted prices.

“Peer-to-peer file-sharing services are becoming a huge problem for us,” said Jeffrey Hardee, the Business Software Alliance’s Asia-Pacific director.

The Slashdot discussion, P2P Networks Blamed For Software Losses Doubling, includes a number of comments that suggest that I’m naive, citing the ed2k network. Maybe a P2P net with a significant reputation/QC element is a threat, but they still seem awfully fragile to me….

Looking at an Infrastructure Investment

Destination Wi-Fi, by Rail, Bus or Boat

Providing Internet access on vessels and vehicles is not as simple as adding it to a fixed venue, like a restaurant or even a convention center. Boats, buses and trains have metal skins or hulls that block wireless signals. They move, often at average speeds of 20 to 100 miles per hour, requiring a system that can rapidly and seamlessly hand off a signal. And they could have large numbers of simultaneous users, many of whom are already working on laptops during the voyage.

[…] One question in all the trials is what will it will cost to put such connections in place more widely, and how that will translate into pricing for the Internet user. Many of the trials and initial deployments are being underwritten by grants or sponsors, requiring little or no financial risk or even outlay by the transit operators. Although the next steps are not fully clear, the agencies generally plan to leave decisions on what to charge to companies that will bid on contracts to operate the services.

Some Telecomm Policy News

  • Wired News: Feds Weigh Role in Net Telephony

    As Congress braces for a comprehensive overhaul of the 1996 Telecommunications Act next year, a House subcommittee on Wednesday debated whether it should first warm up its legislative chops on voice-over-IP telephony services.

    The hearing of the House Subcommittee on Telecommunications and the Internet highlighted the varied mix of VOIP providers, which include companies that sell only VOIP as well as some cable firms and other traditional telecommunications services.

    At issue is whether Congress should pre-empt state regulation of VOIP and, if so, how the federal government can devise safeguards to protect public safety and sustain social goals such as keeping telecom services affordable in rural areas.

  • CNet Opinion: Bad tech advice for the president

    Somebody within the Bush administration is giving the president some very bad advice on broadband policy. Despite its flaws, the Telecommunications Act of 1996–whereby the regional Bell telephone companies must sell unbundled elements of their networks to rivals at just and reasonable rates–is a success: […]

    Still, under lobbying pressure from the Bells, the Bush administration recently turned its back on this successful policy by declining to seek Supreme Court review of an appeals court case striking down the Federal Communications Commission’s unbundling rules.