O Sweet Mr Math

wherein is detailed Matt's experiences as he tries to figure out what to do with his life. Right now, that means lots of thinking about math.

Friday, May 09, 2003

2:39 PM

Today's links are coming up, but first I have a legal question. Dref's comparison of file sharing to theft of cable leaves me wondering about the legality of cable descramblers. If I pay for basic cable service and descramble and watch HBO, am I committing a crime? If I pay for HBO and use a descrambler to watch it, am I committing a crime? (Example: I want to watch HBO while taping Showtime, so I use a cable box to watch HBO and use a descrambler to tape Showtime.) Is selling a cable descrambler a crime? (Analog cable only. Presumably digital cable would be covered by the DMCA.) Selling or using cable descramblers is illegal under the Super DMCA laws. If they are legal otherwise, why hasn't the MPAA been pointing to cable descramblers as a justification for the law?

These questions are beyond the range of copyright law that I am familiar with. If anyone out there can give definite answers, I would appreciate it, just for my own edification.

  • Wow. Apple news is back with a vengeance. MacSlash reports that Spymac, an Apple rumors site, has a database of shared iTunes music libraries. Basically, users announce their music libraries and anyone can connect to them and start streaming music from them. I had gotten as far as thinking of this on a LAN scale (a college dorm or something) but doing it on the entire Internet hadn't occurred to me. Discussion centers on the legality of the service and raises performance issues. As for Spymac, when I went for a look I found the message, "sorry ... this service is currently being updated." But if it works, that's an incredible extension of iTunes.

  • The Harry Potter find has had a fairly boring resolution. Four people have been arrested for theft after copies of the next Harry Potter book were found in a field near a printing press producing the book. The Sun is returning the copies of the book to the press. (from Boing Boing)

  • A jury has ruled that the rapper Juvenile did not commit copyright infringement against Jubilee with the song "Back That Azz Up". Jubilee argued that he recorded a song with that title in 1997 and released it on an album in April 1998. Juvenile argued that he used the phrase "back that ass up" first and performed it in 1997 at a concert that Jubilee attended. Juvenile released his song, which went on to become a national hit, in November 1998. Both sides called musicologists to analyze the songs. The musicologists came to conflicting opinions about the similarity of the two songs. The jury ruled that the two songs were different, despite having the same title and other similarities. Jubilee is considering an appeal.

    This case raises a legal question that became immaterial because of the jury's decision. Suppose Juvenile performed the song but never recorded it. If Jubilee heard the song and recorded the same version that Juvenile had performed, who would own the copyright? Under US law, copyright applies to "original works of authorship fixed in any tangible medium of expression." Jubilee couldn't claim the song as an "original work of authorship," because he would not be the author. On the other hand, Juvenile would not have "fixed" the song "in any tangible medium of expression." I'm at something of a loss. Would Jubilee's recording establish Juvenile's copyright and therefore violate the copyright in the same act that created it? Or would Juvenile have to establish copyright by recording the song himself, at which point Jubilee's recording would immediately violate copyright despite the fact that it was recorded first? Either interpretation is wonky. (from Ernie the Attorney, via FurdLog)

  • In other rap news, Dr. Dre was found guilty of copyright infringement because of his song, "Let's Get High". It was ruled to have infringed on the song "Backstrokin'". This article has fewer details than the previous one. Dr. Dre plans to appeal. (also from FurdLog)

  • Still more from FurdLog (but he got this one from Bag and Baggage). A copyright quiz clears up some myths. It's amusing, thoughtful, and painless.

  • I'm starting to think that maybe everyone should just go to FurdLog for their copyright news. He notes the plunge in sales of Madonna's new album. I have trouble pointing fingers, because there are many factors in an album's success, but I do wonder about the effect of her online antics on her album sales.

  • One of the problems that I've run into in my coverage of copyright issues is that of what's important enough to be worth my time. Law and Contemporary Problems has published the papers given at the Duke University School of Law conference on the public domain. Authors include Yochai Benkler, David Nimmer, and Negativland, among others who I do not recognize but would not assume they are of less importance. This is clearly important enough to be worth my time, but when am I going to find time to read it all?

  • The New York Times has an obituary for George Morrow, a pioneer of the personal computer. The reason why I'm mentioning it is that the second to last paragraph notes his collection of 70 thousand (!) 78 RPM recordings from the 20s and 30s that he had been remastering and rereleasing on CD. I sincerely hope that someone is available to continue work on that project. I assume that the recordings are not covered by copyright, and the only reason why they are now available on CD is because they are not protected. His record label is The Old Masters.

  • TiVo has started licensing its technology to other companies. From TiVo's perspective, this is good news because of the new revenue source. From customers' perspective, this is good news because it will make digital video recorders more widely available, and from larger brands such as Toshiba, the first licensee.


11:53 AM

In typical form, I forgot about Siva Vaidhyanathan's lecture until after it already started. Once I remembered, I started blogging. Here are my notes from the webcast. I missed the first half hour or so, and I had connectivity problems in the middle, so I hope someone has gotten that and that the webcast will be made available so I can go back and pick up the parts I missed. Here's what I got.

reactions to p2p fierce and unjustified

anarchy matters

demand new theories

anarchy is not democracy

democracy requires stable procedures. tempered by republicanism

smart mobs still mobs

mediate between anarchy and oligarchy

doesn't accept intractability

consider conflict in new ways can strengthen democracy

fail to do so, democracy and stability in danger

activism growing, but fractured. need less disobedience and more discussion

call for discussion. do not guide from above

Anarchist in the Library supposed to be about entertainment. world shifted, changed to general control of information

one nation-state has employed all technologies against globalism and stated values

we know less about government while government knows more about us

flows of information more important

transition from entertainment to politics not as difficult as it seemed

copyright instrument of censorship 17th c. state, 20th c. corporation.

role of nation-state in flux

complicated relationships with politics of info

systems of info reg getting more complicated. p2p v. nation-states. corps moving to expand reg powers globally. nobody winning. new technological race. look with alarm and bemusement.

music is free, but stakes much higher.

Q and A

system of ethics? John Stuart Mill, harm principle. justify harm of p2p? need to look at level of harm and harmful behavior. regulation causes more harm. should regulate own behavior. probably shouldn't be downloading entire album you would otherwise purchase. use p2p to find out if would like, probably not unethical. use is copying. gov say over practice of copying. no gov control over access. digital collapse distinction invites reg system in

p2p undermines content industries? in abstract true, practice more complicated. access to all books, CDs, films through library. spends thousands on stuff anyway. availability of free doesn't necessarily replace paid. books not threatened. music question centers. MP3 almost as useful as CD. that's where to examine. RIAA claims do not stand up. any one factor doesn't explain. some loss doesn't mean should reengineer communication networks

DRM implications? DRM - producer controls use of content. recoils at 3rd party flipping switch controlling use. resent Time Warner saying can't record Sopranos but can record Arliss. market opposition. market works if state doesn't mandate. state intervention big problem. DMCA puts state behind DRM schemes. no problem with DRM if DRM users recognize not using copyright in good faith. DRM breaks copyright deal. click through contract severs copyright. user agreements or DRM should require opting out of copyright. content should not be triple wrapped.

[did not repeat question]. legal system can deal with challenges. problem with tech puts it in black box. no debate. Patriot Act is how not to do this. creates silence that abrogates due process and violates principles of libraries. libraries taken for granted. new library in Alexandria. mission to become ideal library. Brooklyn Public Library. full of children and parents. sense of energy. high and calm. three or four neighborhoods come together. more than storefront. statement of value. founders took library of congress very seriously

government has means of enforcing copyright and still does. why industries haven't collapsed. can enforce copyrights even with huge leaks. that's proper. court battles. at least ending up with room full of humans. copyright works better than DRM. DVD invented in 1994. 4 years before DMCA. DMCA around for 5 years. What have we gotten? Hasn't done anything to stop bad guys, but has harmed good guys. DMCA utter failure. deCSS. hacker magazine received injunction against code and links to code. everyone has it. 8 lines on Palm Pilot. could beam it to you and violate law. walked through chinatown 48 hours after X2. and DVDs everywhere. isn't it better to go after them rather than code. real piracy problem, but companies don't want to take it on. in India, don't have a choice to get software must pirate to do job.


explaining Creative Commons. can make use rights very clear. make hat or brooch or pterodactyl but must credit. started six months ago. many weblogs have them.

home taping copyright violation? civil law only in trouble if other party comes after you. gotten used to copying. 1970s cassette liberating moment. not willing to give that up. not far reach to use electronic files. 70s record companies didn't crack down. lawsuits too expensive. fair use comes from transaction costs. (economic argument) if transaction cost low enough, can plug holes in system. culture is messy and is about sharing. music in particular. musical composition about borrowing. tight control with limited ability for consumer use runs against the spirit of music. music should be open.


Thursday, May 08, 2003

1:47 PM

Jay!'s comment in response to my "copyright infringement is not theft" post brings up a topic I haven't discussed up to this point. Jay! says, "The reason it is referred to as stealing is because people are unlawfully obtaining intellectual property, and the benefits thereof, without properly [sic] credit and due going to the artist of said IP." First, it's not unlawful. That was my point. It's illegal to distribute copyrighted material without permission of the copyright holder, but it's not illegal to acquire it. Second, if it wasn't clear, I was speaking from a legal perspective, rather than a moral perspective. (Also, all discussion is based on US federal law, unless I explicitly say otherwise.) Third, Jay! raises the question of the artist's moral rights, which I need to discuss in more detail.

There are two competing justifications for copyright. The first is the economic utilitarian model, which states that the intent of copyright is to maximize the production of artistic works. My posts up to this point have generally been written from this perspective. This is also the model expressed by the Copyright Clause of the US Constitution, which reads, "The Congress shall have Power . . . To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The other justification for copyright is the "author's rights" model. Under this model, creators deserve credit, control, and compensation for their creations because the creations belong to them. This thinking gained popularity during the nineteenth century, when the Romantic movement promoted the image of the tortured author, pouring his or her soul out into his or her creations. Creations are then both an expression and an extension of the identity of the author, and just as people are generally given control over their own image and identity, they should have control over their works.

Twentieth century criticism generally discredited this thinking, instead focusing on the interaction of the work and the reader and on the interaction between multiple versions of a work. Regardless, the idea of the author's moral rights still has strong standing among the public at large and influenced the copyright laws passed during the twentieth century. In particular, the utilitarian model implies a fixed duration for copyright and wide tolerance of reuse of copyrighted materials, to the extent that longer copyright and less tolerance might impede creation more than it encourages it. Author's rights has no such limits. If anything, it implies perpetual copyright and absolute control. Copyright protection became longer and broader with every law passed during the twentieth century.

Author's rights are now even explicitly protected by federal copyright law, following The Visual Artists Rights Act of 1990. The law grants the moral rights of attribution and integrity to visual art (painting and sculpture, for example, but not film). The right of attribution means that artists must be recognized as the creators of their works and cannot be credited as the creators of works they did not create or mutilated versions of their works. The second part is to protect artists' reputations from works for which they are not responsible. The right of integrity means that artists can prevent any intentional harmful modification of their works and prevent the destruction of their works.

The duration of the rights of attribution and integrity is distinctly wacky. For all covered works created after June 1, 1991, the duration is the lifetime of the creator. For works created and sold before June 1, 1991, there are no legal rights of attribution or integrity. For works created before June 1, 1991 but sold after that date, the duration is as long as the duration of conventional copyright (currently the author's life plus 70 years). These rights cannot be transferred, but they can be waived. Can anyone explain how the duration of life plus 70 years interacts with the non-transferability? I assume someone who's dead can't take legal action. Can someone else (an heir, perhaps) take action on the dead person's behalf?

There are those who think that existing copyright law implies general moral rights. There are others who think moral rights should be extended. For example, television broadcasts regularly show colorized, cropped, and edited versions of movies. These modifications harm the movie and may be against the director's (and viewers') wishes. The trade-off is that protecting the moral rights of creators may interfere with commentary and new creation. The now canonical example is The Wind Done Gone by Alice Randall, which retells Gone with the Wind from the perspective of a slave. The estate of Margaret Mitchell sued Randall for copyright infringement and it was eventually ruled noninfringing on the basis that it is a parody. Calling it a parody is something of a legal fiction, but if there was a legal right of integrity protecting Gone with the Wind, parody wouldn't protect The Wind Done Gone from charges that it harms Margaret Mitchell's work.

There are other moral rights that creators may claim. One that arises in the music industry is the right of compensation. Some users of file sharing services argue that when they purchase CDs, the money goes to the record label, rather than musicians. Since the record label is already depriving the musicians of their compensation, downloading songs rather than purchasing them is morally justified. To my mind, this is arguing that one immoral act isn't so bad because another immoral act is worse, and I have trouble supporting that.

Jay! demonstrates some common confusion on this point when he writes, "[stealing] won't stop me from downloading MP3s and using iTMS as a sampler for albums I want to 'try before buying' but can't find on Hotline/Carracho/P2P services." The whole point of iTMS (Apple's iTunes Music Store) is that it is both legal and moral. You are paying for the songs, and the record label is making money from the sale and distributing money to the musician based on the musician's contract. Whether downloading MP3s for sampling is moral is a matter for debate, but justifying downloading implies denying the moral right of compensation.

That, for me, is the crux of the matter. Moral rights are great when they get you what you want, but most people are willing to discard them or rationalize ignoring them when they get in the way. Personally, I tend to strike for the middle ground. Some of my friends know me (and aren't hesitant to express their annoyance) for tracking down the sources for forwarded email messages that I receive. I strongly support the moral right of attribution, and I think that if you think something is good enough to be worth forwarding, you should know who wrote it. The blogging community supports this with the habit of crediting other bloggers who found a link first. A legal right of attribution makes me nervous. I don't want to have to worry that someone will come after me for using the example of The Wind Done Gone without having credited that person for using it first.

That's my attitude generally. Authors should have moral rights in their works, including the rights of attribution, integrity, and compensation. When a moral right gets turned into a legal right, however, it interferes with society's ability to respond to existing works and create new works. There should be a balance between the goals of society and rights of individuals. The law isn't necessarily good at striking that kind of balance, and reflexively protecting the rights of individuals without giving thought to the impact on society guarantees that balance will not be found.


Wednesday, May 07, 2003

1:34 PM

Public Service Announcement: Salam Pax has made his first blog entry in a month and a half. It is long and intense. I know he has many readers out there, so spread the word.


12:23 PM

Not only did I avoid Apple today, but there's hardly any music news at all. There's still plenty of other good stuff, though. Take a look and enjoy (or panic).


Tuesday, May 06, 2003

5:14 PM

I have something to say. Copyright infringement is not theft! Allow me to demonstrate.

If you come into my house, go through my CD collection, take my Madonna American Life CD without asking, and leave, you have committed theft. You have committed a crime, I am the victim, and Madonna hasn't been affected. In the computer world, this is equivalent to hacking into my computer, copying a file onto your computer, and deleting it off my computer.

If you come to my house and I have put up a sign reading, "Free Madonna CDs," there's a pile of CDRs under the sign, and you take one, you have not committed a crime. I have committed copyright infringement and Madonna is the victim. I could mount a fair use defense on the basis that I'm not charging for it, but it probably wouldn't work. This is the equivalent of file sharing.

If I advertise free CDs and invite others to come over and distribute free CDs, Derek sets up a booth with free Madonna CDRs, and you take one, you have not committed a crime. Derek has committed direct copyright infringement, I have committed contributory copyright infringement, and Madonna is the victim. This is the equivalent of Napster, where Napster is committing contributory infringement.

If I give you a car so you can use it to drive around and look for free stuff, you drive to Donna's house and ask for Madonna CDs, she says she doesn't have any but Derek might, you drive to Derek's house, and he gives you a Madonna CDR, you have not committed a crime. Derek has committed copyright infringement and Madonna is the victim, but neither Donna nor I have committed a crime. This is the equivalent of the Grokster/StreamCast ruling, where Grokster and StreamCast are not committing a crime.

It's very easy to slip into referring to copyright infringement as stealing, but it's clearly not. The party committing the crime is different and the victim of the crime is different. Additionally, theft is a criminal act while copyright infringement is a civil offense. Steve Jobs repeatedly referred to file sharing as stealing when he announced the iTunes Music Store and I've realized that I am not alone in picking up that usage. I'm saying right here and now, stop it. Refuse to use this language yourself, and call others on it when they get it wrong. I intend to make sure I get it right going forward, and I encourage others to tell me if I blow it.

That is all. Return to your regularly scheduled surfing.


3:06 PM

I thought I was going to be able to avoid mentioning Apple today, but it was not to be. Anyway, here's today's reading list.


Monday, May 05, 2003

1:40 PM

Today's Apple news: CNET is reporting that Apple sold over 1 million songs during the first week after the launch of the iTunes Music Store. The article also discounts the effect of file trading on CD sales, supporting the idea that the transition from vinyl to CD had finally been completed, and this offers the opportunity to convert to a new medium, provoking new sales. Personally, I don't consider this to be a change in medium so much as a change in the purchasing process.

Other news:

  • CNET has an interview with Michael Weiss, CEO of StreamCast. Weiss states that he sees peer to peer services as complementary to music download services, rather than as direct competitors, and that he thinks the recent court ruling in favor of StreamCast is very strong and will allow the company to "come out of the shadows."

  • Wired News reports on a California bill that would require Internet users to be notified when their ISP receives a subpeona asking for their personal information. The intent is to give users an opportunity to respond and to challenge frivolous lawsuits and subpeonas, reducing the use of the subpeona as a harassment tool. The article focuses on the free speech ramifications, but it is also significant for file sharing. Verizon is currently fighting a subpeona that would require it to identify users of its DSL service that the RIAA is accusing of file sharing. Under this law, Verizon would be required to notify the users in question. The article doesn't have any comments from Verizon, but does include comments from Yahoo, which opposes the bill.

  • The New York Times is reporting on Clear Channel's plans to sell "Instant Live" CDs after concerts. Concerts are recorded live and then mixed to CDs which are available for sale at the concert within minutes after the concert ends. I feel like this is really important but I don't think I've grasped the full significance yet.

  • Madonna's latest CD debuted at No. 1 this past week. The article mentions the role of low pricing in the album's success, but doesn't mention the impact one way or the other than online distribution of the first single on the album may have had. The article also states that sales were lower than the first week sales of either of her most recent two albums.


Sunday, May 04, 2003

1:02 PM

The San Francisco Chronicle has an article about the response of the movie industry to file sharing. The title refers to the Super DMCA laws, but the article provides a basic summary of many other tactics the MPAA has in play. The Slashdot discussion, which focuses on the Super DMCA, demonstrates how many supposedly technically savvy people still just don't get it. In review: this law will control what you can do with your computer and how you can watch television. Before you shrug it off, be aware that it is passing all over the country, usually with minimal discussion. Find out the status of the law in your state and contact your state legislature. Tell everyone you can to do the same.

On something of a side note, I had a feeling of déjà vu while reading the San Francisco Chronicle article. I'm not sure if that's just because I've read so many articles on the subject that they are all starting to seem familiar or if it's because the article reuses elements from other articles. If it's using elements from other sources, they aren't properly credited.


1:26 AM

Copyright news for May 3rd.

  • CNBC is running a program on "digital piracy" Monday at 8, according to Politech.

  • The New York Times has an article about new tactics that the music industry is considering for fighting file sharing. The article states that the new strategies "have varying degrees of legality." The approaches range from computer programs that masquerade as music files that would automatically take the user to web sites that legitimately sell music to deleting files on users' computers and attempting to flood users' Internet connections with data so that they are unable to connect to the Internet. Reaction to these plans are available from Dan Gillmor and on Slashdot.

  • Infothought says that the lesson of RIAA lawsuits against college students for running search engines is that "Ordinary humans cannot fight corporate lawsuits." The point here is that it doesn't matter if the RIAA can win the lawsuits it files. The cost (money, time, energy) of fighting the lawsuit is so far beyond what individuals can bear that they settle because they feel they have to. Relative to the billions of dollars in damages that the RIAA was seeking, $15,000 isn't much, but relative to the sums of money that college students have, $15,000 is pretty overwhelming. Given the choice between fighting and taking on overwhelming debt, all four students chose overwhelming debt. What does that say about the balance of power between corporations and individuals? Freedom to Tinker has similar thoughts.

  • I'll take a break from my obsession on the music industry to provide some info on the movie industry and its response to file sharing. The Shifted Librarian has key quotes from an Entertainment Weekly article. Apparently the movie industry thinks Ben Affleck is likely to make theater goers less likely to copy movies. Jack Valenti is sufficiently out of touch that he thinks workers on movies earning $75,000 and up deserve sympathy for having their salaries threatened. (from FurdLog)

  • Also from The Shifted Librarian: a link to a MetaFilter discussion of personalized custom editions of classic novels. The original post raises the possibility of a "happy-ending version" of Romeo and Juliet, and goes on to state, "The problem with public domain is that the integrity of the original is lost once it's Disneyfied." This provokes the same reaction I had when reading Terry Fisher's upcoming book and he suggested a similar idea. First, somehow I don't think that some small press publishing a doctored version of Romeo and Juliet threatens the "integrity" of Shakespeare's version. (I was going to call it the "original" until I remembered that it likely wasn't the first telling of this story.)

    Second, and more generally, I think that the threat that conflicting versions of a story will undermine the power of the story is overstated. The cultural sense of King Arthur is influenced by such diverse sources as T. H. White's The Once and Future King, Disney's The Sword in the Stone, and Monty Python and the Holy Grail without dissolving the power of the King Arthur myth. Detailed analysis of the myth may require choosing one version as authoritative, but that authority is granted collectively, and any analysis will undoubtedly be sharpened by referencing a particular telling or set of tellings.

    If the happy-ending version of Romeo and Juliet is truly superior to Shakespeare's version, then I think the happy-ending version is the one that should be propagated. That might be bad news for Shakespeare, but it's good news for readers.

  • FindLaw's Modern Practice has more articles about copyright than you can shake a stick at, in case you were looking for more reading. (from A Copyfighter's Musings)

  • Freedom to Tinker divides the world into Big-IP, Small-IP, and No-IP factions and describes the relationships between the three groups. He says that the Big-IPs have forced the Small-IPs to work with the No-IPs by treating them like they're No-IPs, and they would be better off if they could get the Small-IPs on their side. I disagree, because I believe that right now the Big-IPs can operate on their own because they're winning. Why compromise if you're already getting what you want?

  • The New York Times has a reaction piece to extra features on DVDs, particularly including alternate endings. This ties into my discussion above of conflicting versions of a story and generally raises questions about the nature of authorship. The writer speaks against multiplicity, but he may be shouting into the wind. As long as the movie industry thinks that's what consumers want, multiple versions of movies will be the standard, possibly with the side effect of denying the primacy of the author which is at the root of arguments for strong copyright.




What does "rolls a hoover" mean, anyway?

"Roll a hoover" was coined by Christopher Locke, aka RageBoy (not worksafe). He enumerated some Hooverian Principles, but that might not be too helpful. My interpretation is that rolling a hoover means doing something that you know is stupid without any clear sense of what the outcome will be, just to see what will happen. In my case, I quit my job in an uncertain economy to try to start a business. I'm still not sure how that will work out.

Why is the HTML for this page not valid?

BlogSpot adds the advertisement that appears at the top of this page. That advertisement is not valid HTML and is outside of my control. I believe that aside from that ad, this page is valid HTML.