October 3, 2005

Julie Hilden on the Authors’ Guild Suit [5:39 pm]

Authors Sue Google Over Its “Print for Libraries” Project: Will the Suit Succeed? Should It? And Why, As An Author, I’m Opting Out of Any Class Action

In this column, I will address four questions: Should this suit be certified as a class action? What should Google’s position be on class certification? (We know the plaintiffs position: They want it.) Who’s likely to win this suit? And, assuming the suit is certified as a class action, should individual authors opt in, or opt out?

[...] Besides being a writer, I’m also a strong free speech advocate, and Google’s project may well help free speech more than it hurts it. I want to see the advance of human knowledge much more than I want to get paid for making my books searchable. The fact that they might become searchable, to me, is a welcome surprise.

[...] So in the end, rather than joining the challenge to Google’s Library Project, I’d like to pose a challenge to Google: When are you going to apply your genius to eBooks?

Having scanned all those books in already, wouldn’t you like to distribute them too? Of course, for that, you would need a copyright license - but I think many authors would give you one for a low fee.

In the future, Google’s Project might even do for eBooks what Apple did with Itunes: Provide a sample of a work, as an inducement to download the whole thing at a modest cost, and entirely legally.

Because of hopes for innovations like this - which will bring authors profits, protect copyrights, and potentially democratize book-writing, much as music has been democratized - authors may be shortsighted if they support the Authors’ Guild suit.

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Greed Is Not Unique To The US Record Industry [2:06 pm]

Artists’ managers, royalty collectors turn on iTunes

Having lauded the arrival of legal music download services likes Apple’s iTunes for saving it from online piracy, the music industry is now complaining that the digital domain is not sufficiently recompensing artists.

According to a report [pdf] in today’s Times newspaper, the Music Managers Forum (MMF), a trade body of artists’ representatives, are bemoaning the 4.5p performers make out of every 79p iTunes download. That figure, which translates into a rate of six per cent is half the rate they get from physical singles.

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Analysis of the Draft Telecom Reform Bill [1:51 pm]

An optimistic take, IMHO, but interesting to read: US bill heralds end of walled gardens

The House draft, an important first step in the telecoms reform process, replaces the distinction between telecoms and information services with a single category - broadband internet transmission service (BITS) providers. It would not allow content blocking, except to conserve network capacity “it this is deemed reasonable”, a term that should be further defined by the FCCs.

Legislation will only accelerate a process that is inevitable anyway as customers grow to expect open access and flat rate pricing on their cellphones as well as on their PCs. Cellular operators, like the original internet service providers, will have to accept that they cannot keep subscribers penned in, but will have to compete for their loyalty and dollars with genuinely compelling content and applications.

[...] These debates and dilemmas will persist for the next few years, as service providers work out their new models and form their content partnerships and as WiMAX becomes mature. US proposals to ban carriers from limiting access to content and applications will no doubt be emulated elsewhere and will accelerate the process, but even without legislation, consumer behavior has changed too much to allow any outcome but the collapse of the garden walls. What is less certain is which providers will adapt best to the open IP world — and ironically, it will not always be the IP operators.

Links to the draft bill, etc.

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Harvey Danger’s Internet Distribution Experiment [10:49 am]

Why We’re Releasing Our New Album for Free on the Internet [via Slashdot]

In preparing to self-release our new album, we thought long and hard about how best to use the internet. Given our unusual history, and a long-held sense that the practice now being demonized by the music biz as “illegal” file sharing can be a friend to the independent musician, we have decided to embrace the indisputable fact of music in the 21st century, put our money where our mouth is, and make our record, Little By Little…, available for download via Bittorrent, and at our website. We’re not streaming, or offering 30-second song samples, or annoying you with digital rights management software; we’re putting up the whole record, for free, forever. Full stop. Please help yourself; if you like it, please share with friends.

[...] [I]t’s important that people understand the free download concept isn’t a frivolous act. It’s a key part of our promotional campaign, along with radio and press promotion, live shows, and videos. It’s a bet that the resources of the Internet can make possible a new way for musicians to find their audience — and forge a meaningful artistic career built on support from cooperative, not adversarial, relationships.

[...] This is by no means a manifesto. We don’t pretend to be the first band to spin a variation of the shareware distribution model. We love record labels and record stores. We buy lots of CDs and are committed to supporting independent music. We’re not a bunch of fake Marxists. We’re just trying to be smart capitalists so we can sustain our lives as musicians. This is an experiment. We’ll let you know how it goes.

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Ringtones and Music Revenue: IFPI Stats [10:38 am]

From Reuters: Digital music sales surge amid broader decline [pdf]

The music industry cheered a tripling of digital music sales in the first half of 2005 that was spurred by mobile phone “ringtunes” and online services and offset persistent declines in overall sales.

Digital music now makes up 6 percent of total sales, or about $790 million, according to first-half figures released on Monday by the International Federation of the Phonographic Industry (IFPI) trade group.

Press release; fact sheet from Recording Industry in Numbers 2005

The AP’s report: Sales of Digital Music Triple [pdf]; The Register: Fans spent $790m on digital music in H1

Later: the LATimes’ Digital Music Sales Soar; Industry Hopes Downloads Eventually Offset CDs’ Decline [pdf]

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Clickwraps, Boxtops and Other Licenses [10:21 am]

Lexmark and its printers, again: By Tearing Open That Cardboard Box, Are You Also Signing on the Dotted Line?

A recent decision in the Ninth Circuit Court of Appeals reinforced the right of companies, in this case Lexmark International, the printer maker, to legally limit what customers can do with a patented product, given that the company spells out conditions and restrictions on a package label known as a box-top license.

Clickable license agreements are common practice in software, where the buyer agrees not to tamper with the code or copy the program. But slapping postsale regulations on patented goods could deny buyers the ability to make modifications or seek repairs on other products as well. Box-top licenses could also theoretically hinder third parties from offering replacement parts or supplies for fear of a patent-infringement lawsuit (meaning, for example, that a lighter might have to be refueled only with the manufacturer’s brand of butane).

In the lawsuit, the Arizona Cartridge Remanufacturers Association, a trade group of companies that sell refilled printer cartridges, claimed that Lexmark was engaging in unfair and deceptive business practices by promising price discounts on its laser cartridges if the customer promised to return the empty cartridge to Lexmark.

[...] Fred von Lohmann, a senior attorney with the Electronic Frontier Foundation and author of a 2004 amicus brief supporting ACRA, said he was more concerned about future implications of the decision.

“This certainly sent a very strong message to patent holders generally, and Lexmark in particular, that you can use these labels in order to restrict what your customers can do with the product after they buy it,” he said.

The case: Arizona Cartidge Remanufactureres Association v. Lexmark International

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Ads, Culture and Technology [10:12 am]

Cultural isolation, the consequence of online personalization? Got Wit? Make It Visual in Ads Online

Many of the print, radio and television ads are instantly recognizable by a shorthand description: the Campbell Soup kids, Tony the Tiger, the Absolut vodka bottle, “Got Milk?,” “Where’s the beef?,” “Just do it.” These aren’t just ads. They are cultural moments. If you don’t know at least some of them, you’ve probably just arrived on Earth from another planet.

You can’t say that for the online ads. Does the Tecto bubble level mean anything to you? Does a word (bird) defecating ring a bell? What about Virgin Atlantic’s haircut?

If you are drawing a blank, it’s not because these online ads aren’t powerful and witty. It’s because in the world of online advertising there is no common culture. The ads come from all over - many in this show are from Brazil - and are designed for specific subcultures with specific tastes, morals and spending habits. They’re both worldlier and more provincial.

[...] At the end of the show, there is a private booth where the meaning of “opt in” becomes clear. Behind some curtains, you are invited to reveal your preferences to the computer so an ad can be created just for you. It’s creepy.

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Regulating Culture: Venezuela [10:08 am]

Venezuelan Strongman’s New Gig: National Disc Jockey

Deep in Venezuela’s new, cumbersome Social Responsibility Law is an item that requires radio stations to play more - much more - Venezuelan music. The idea, the fiercely nationalist government says, is to promote Venezuelan culture over foreign culture, particularly American rock, which has dominated radio airplay for years.

If the measure seems obscure, its effects have not been. From the techno-pop wizards of cosmopolitan Caracas to the folksy crooners of this cattle town, Venezuelan musicians say they are reaping benefits from President Hugo Chávez’s efforts to regulate culture.

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Editing, Music and Creativity [9:48 am]

From Friday’s NYTimes, a fun example of remix culture: His ‘Secret’ Movie Trailer Is No Secret Anymore

A few weeks back, he said, [Robert Ryang] entered a contest for editors’ assistants sponsored by the New York chapter of the Association of Independent Creative Editors. The challenge? Take any movie and cut a new trailer for it — but in an entirely different genre. Only the sound and dialogue could be modified, not the visuals, he said.

Mr. Ryang chose “The Shining,” Stanley Kubrick’s 1980 horror film starring Jack Nicholson and Shelley Duvall. In his hands, it became a saccharine comedy — about a writer struggling to find his muse and a boy lonely for a father.

To save their server, here’s a local copy.

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Paramount: “Why Decide?” [9:14 am]

In DVD Format Split, Paramount Goes 2 Ways

Recognizing that a split over the format of the next generation of digital video discs is deepening, Paramount Pictures said yesterday that it will make DVD movies in the Blu-ray format as well as in the HD DVD standard.

Paramount is the first major studio to say publicly that it will produce DVD’s in each of the two formats, which both promise high-definition pictures, enhanced audio and five or more times the storage space on a disc. Until now, the big Hollywood studios have supported one format or the other.

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Trying to Avoid Google’s Fight [8:37 am]

For as long as we get to keep a public domain, I guess. I still expect to see some fights, though. After all, it took a fight by JibJab to find out that the song at question *was* in the public domain: Yahoo to digitize public domain books

“If we get this right so enough people want to participate in droves, we can have an interoperable, circulating library that is not only searchable on Yahoo but other search engines and downloadable on handhelds, even iPods,” said Brewster Kahle, founder of the Internet Archive.

The project, to be run by the newly formed Open Content Alliance (OCA), was designed to skirt copyright concerns that have plagued Google’s Print Library Project since it was begun last year.

The Authors Guild sued Google last week, alleging its scanning and digitizing of copyright protected books infringes copyright, even if only small excerpts are displayed in search results as Google plans. Google argues that the project adheres to the fair use doctrine under U.S. copyright law, which allows excerpts in book reviews and the like.

Unlike Google, Yahoo will scan and digitize only texts in the public domain, except where the copyright holder has expressly given permission. The OCA project also will make the index of digitized works searchable by any Web search engine. Because Google is restricting public access to excerpts of copyright protected books, it is maintaining control over the searching of all the digitized texts in its program.

Slashdot: Yahoo Competes with Google in Book Scanning

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Profiles in Spoofing [8:11 am]

The Piracy Arms Race [pdf]

Although Val Thomas and Jed McCaleb have never met, their careers have been locked in a hostile embrace for much of the last two years.

From his office in Midtown Manhattan, Thomas commands a virtual army of more than 4 million simulated humans that fed a steady diet of fake songs, films and other digital goods to unsuspecting downloaders. One of his prime targets has been the eDonkey file-sharing network, a hotbed of online piracy.

Just a few miles away in Lower Manhattan, Jed McCaleb and his colleagues at MetaMachine Inc. defended eDonkey against attack, making it a more efficient and reliable file-sharing tool. In effect, they created markets that were hard for Thomas’ cyber army to overrun.

[...] The outcome of that fight could transform the entertainment industry because “peer-to-peer” systems such as eDonkey enable perfect copies of songs and movies to be shared with millions of people around the world.

[...] “In many ways, this is a numbers game, and you match firepower with firepower,” said Marc Morgenstern, CEO of Overpeer. “It’s definitely an arms race. The fact of the matter is that the content industries recognize that it takes a lot of firepower to protect their assets, and they’re willing to take the steps necessary to do so.”

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