COPYCENSE

Copycense Weekly Review (through Dec. 24, 2011)

Copycense social media posts on copyright, communications, intellectual property and the media industries from December 18 through December 24, 2011.

  • “Go Daddy No Longer Supports SOPA” is.gd/IwPRNN #copyright
  • Why does Bill Patry’s old book (2009) is.gd/de7EJ8 cost more than his new book (2011) is.gd/W1frTG on the Kindle?
  • Paper: Orphan Works: Definitional Issues is.gd/cUNbwO #copyright
  • Singer Cesaria Evora died last Saturday. She was 70. #music m.guardian.co.uk/music/2011/dec…
  • Cornell, Technion (Israel) win NYC science campus bid is.gd/PuYLfE
  • Wolverine uploader: 1 year federal prison; “strong message of deterrence to pirates” is.gd/N1VzAz #copyright
  • The Economist explores progeny, history of seminal “Amen, Brother” break beat is.gd/TFZL2i #music /HT @wayneandwax
  • RE bit.ly/rWu2tm Veoh wins #DMCA battle, still dead as a door nail is.gd/Va1jH5 #copyright
  • Hollywood exec: “Our mistake was allowing this romantic word — piracy — to take hold” is.gd/0EQmRw #copyright
  • USA: Federal appeals court affirms #DMCA safe harbor protection in UMG v. Veoh is.gd/ONY5zb [pdf] #copyright
  • Judge in YMCA #copyright termination lawsuit allows Songwriters Guild amici briefs is.gd/IxVzal
  • Adobe’s no-choice embrace of HTML5 is.gd/fxwYGC #media #Web
  • How the “jobs” frame failed to work magic in the AT&T/T-Mobile deal is.gd/9rlD7K #mobile
  • Framing T-Mobile/AT&T: Low prices, choice & consumer benefit = harm to stock prices? is.gd/EQM4Jg /HT @artbrodsky
  • RT @copyrightclear: Open-Textbook Idea Is Gaining Steam ow.ly/85p3a
  • Harry Potter U.S. publisher releases YA time travel series with gaming tie-in is.gd/dv6piF
  • USA: Intl Trade Commission rules Android smartphone features protected by Apple #patent is.gd/VQ0vU8 #mobile
  • AT&T Ends $39 Billion Bid for T-Mobile is.gd/tttnTn #mobile
  • Lemley, Levine, Post: Don’t Break the Internet is.gd/URfRDR #SOPA #copyright
  • RT @LawandLit: Who gets custody of Twitter when an employee quits? j.mp/uMIBj3
  • Artist without registered Nielsen SoundScan sale gets Grammy nomination is.gd/yDjmRy #music
  • Microsoft: We Can Remotely Delete Windows 8 Apps is.gd/53B6cL
  • Research Note: #Copyright Infringement & Enforcement in the US: is.gd/KlpgbT [pdf]
  • “[W]hen Napster blew a hole in the paradigm, everybody was sacrificed but the top guy” is.gd/yTJUmo #copyright #music

Written by Copycense Editorial

12/24/2011 at 17:00

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Clipping Limit Exceeded

I’ve entered the e-book world cautiously. I like the Kindle as a reading device, and generally have had very satisfactory experiences as an Amazon.com customer. I actually like the Nook more than the Kindle as an e-book reading device, but I remain irritated at Barnes & Noble for its wholesale destruction of New York City’s independent bookstore scene beginning in the early 1990s. I’ve never forgiven them for that, so since then, I have pretty much avoided doing business with Barnes & Noble on any level beyond a bathroom break.

Mostly, I’ve not gone “all in” with e-books for three basic reasons. First, too many publishers set prices too high for the value proposition they’re offering. Unless there is something special about the e-book offering — multimedia elements, for example — don’t come at me with a price higher than $10. Let me be clear: I can pay more than $10; I won’t pay more than $10 because there’s no value proposition to me beyond $10.

The second reason I’ve not gone all in with e-books is availability. Quite simply, the works I want (or need) to be available in an e-book format for the Kindle too often aren’t available. (And by the way, a price above $10 means I consider that title to be unavailable, because as I mentioned above, the value proposition usually does not warrant a price greater than $10.)

The third reason I’ve been a little wary about fully committing to the e-book situation is because of this nagging little concept called the first sale doctrine. If I buy the print book, I can pretty much do whatever I want with the copy of that book. But if I purchase the e-book, I’m not buying the material; instead, I am licensing that content subject to terms and conditions of a license into which I had no customer input. Many already know about Amazon.com’s Kindle kerfuffle two years ago involving Orwell’s 1984. That certainly gave me pause. Now, a recently discovered situation is giving me pause again.

Since I read only non-fiction, mostly for research purposes, the Kindle value proposition for me lies in being able to search the book, highlight passages, and take notes. For quite a while, Kindle downloads excluded page numbers that matched the print edition. The omission made using the Kindle for research purposes virtually worthless. But Amazon fixed that issue in February. And earlier this week, I discovered how to access and export those Kindle highlights and clippings. So now I’m figuring I’m golden.

Nyet.

I login and am reviewing notes and highlights from various e-book titles. For Michael Lewis’ The Big Short, I see this message

W.W. Norton Kindle clipping restriction

W.W. Norton Kindle clipping restriction

Let me repeat the relevant provisions

You have 120 highlighted passages but we can only show 86 of them. What’s this?

And then the link associated with “What’s this?” provides further information

Clipping Limit Exceeded

For some books the publisher allows only a limited percentage of a book to be “clipped” and stored separately from the main body of the book, as normally happens when you add a highlight. If you exceed this limit then you will see fewer highlights on this website than you actually marked on your Kindle. Popular Highlights are not counted towards this clipping limit.

I purchased The Big Short for leisurely reading, so the clipping limitation doesn’t hurt my research. But I didn’t know about this “limitation” when I purchased the book. Further, why is there a clipping limitation at all? Does Lewis’s publisher, W.W. Norton, really think that excessive clipping is a potential “piracy” issue? (Ironically, all of my settings restrict sharing of clippings and highlights.)

Amazon.com is not off the hook on this issue, either. As a vendor, Amazon must know that part of the Kindle’s appeal is the ability to clip and take notes. If that capability is restricted in any way, to me that e-book title is defective — at least for my purposes. I will not knowingly purchase an e-book that restricts note taking and clipping. So Amazon needs to clearly identify this as a publisher-induced e-book “defect” in the same way it tries to frame excessive e-book prices (not coincidentally, usually above $10) as a publisher-induced “defect.”

Further, Amazon.com’s allowance of this practice is just ridiculous. It’s not as bad as its cave to The Authors Guild on the text-to-speech issue, but its flaccid nevertheless.

Now, I’m back to being real skeptical, and keeping my money in my pocket.

Written by Dr. K Matthew Dames

12/21/2011 at 12:18

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Copycense Weekly Review (through Dec. 17, 2011)

Copycense social media posts on copyright, communications, intellectual property and the media industries from December 11 through December 17, 2011.

 

  • As family battles over her assets, singer Etta James is terminally ill & fighting for her life tinyurl.com/7e8onn5 #music
  • Beyonce 2010 tour: Tells story of record label execs telling her first solo album had no hits. Result tinyurl.com/323xqx
  • All 10 hours of House #SOPA Day 1 debate, and then some is.gd/QXuVa5 #copyright
  • RT @juditrius: Take action: Ask Johnson & Johnson to join the medicines patent pool for hiv/aids bit.ly/u5B1O2
  • Dec. 13, 2011: 300th anniversary of New York’s first slave market. Located on Wall St. tinyurl.com/3svpgam
  • Per @whitehouse: “Happy Bill of Rights Day” (Thursday) | Fast forward to utter imbecility at #SOPA hearing, Day 1. How the mighty has fallen
  • RT @loricnet: Cats could do a better job governing. #SOPA is a giant hairball, anyway.
  • Catching up on #SOPA timeline coverage. At point where folks are talking about this fiasco tinyurl.com/7qc8a5c | Are they serious?
  • “Droit de suite” bill introduced in US congress. This is provided for in Berne Convention but not required. nyti.ms/sQE4me
  • 15 Dec /HT @howardknopf
  • DNS expert Paul Vixie on #SOPA harms bit.ly/uHad7g #copyright /HT @mmasnick @normative
  • RT @primusluta: “I’m not arguing with you about technology here” Rep. Watt …. uh yeah this is about technology #SOPA
  • RT @onthemedia @NYTimes says it should have credited @Techdirt for breaking news about music website and domain seizure bit.ly/w5cu0l
  • Hearing, debates sounds nice, but I stand by Nov. 28 prediction — esp. with “too fast” meme: is.gd/mTdvv1 #copyright #sopa
  • 15 Dec
  • RT @nancyprager: [Clerk’s] got a cup of water. Bright side for all tech geeks watching is she is cute. Bet a meme develops around her. #sopa
  • House Judiciary Committee markup hearing on #SOPA: is.gd/FdfmbX (audio) OR is.gd/H2fRkp (video) #copyright
  • Someone *please* be humane: throw the clerk a bottle of water, at the least #SOPA
  • Berman tried to save the clerk, but alas, she must continue reading. Good for citizenship; sucks to be the clerk #SOPA #copyright
  • Watching House #SOPA hearing. I feel for the woman assigned to read all this text into the record. She’s just on the definitions section.
  • What person or organization is behind KeeptheWebOpen.com? Rep. Issa’s name is on the Web site, but not really clear #sopa #copyright
  • The anti free software movement: pay developers flpbd.it/TV1v
  • The pro & con advertising campaigns behind SOPA/PIPA is.gd/0EQmRw #copyright
  • Jared Polis (D-CO), former Web entrepreneur, on #SOPA is.gd/ltvjzV #copyright
  • Hachette: “Self-publishing is a misnomer” is.gd/CgZZqm | @jakonrath: “giant bowl of steaming fail” is.gd/9GWLfK
  • Scholars decline to act as reviewers, even as tenure depends on peer-reviewed publications is.gd/2AvqZR
  • Authors Guild Files for Class Certification in Google Case http://bit.ly/unhpkI /HT @LloydJassin
  • Indie bookseller on Amazon.com’s price comparison offer (which, BTW, excludes books) is.gd/1ogRr6 /HT @LawandLit
  • Life Cycle of a Book j.mp/rVROdx HT @LawandLit
  • Library Wars: Amazon, publishers vie for control of e-Book rentals is.gd/erGE0b /HT @DrRimmer #books #copyright
  • Comedian Louis C.K. posts numbers on his direct-to-consumer comedy tour is.gd/0s7ZSV
  • USA: Court denies software company’s attempt to censor consumer complaints on the Web is.gd/I8jXFQ /HT @RonColeman
  • The Facebook resisters is.gd/ganyeN #social
  • Amazon’s decent treatment of authors doesn’t seem to extend to app developers is.gd/g55lTI /HT @CraigGrannell #mobile
  • Secret terms & conditions every #music subscription service must agree to is.gd/pMzynl HT @airvpn #copyright
  • Orson Welles’ Citizen Kane Oscar up for auction is.gd/O65aNC
  • LoC: Digital preservation and the online video revolution is.gd/ZpRcnc
  • Editorial: Rent-seeking leads to executive “atrophy” is.gd/NtvLGe /HT @AdamThierer #copyright
  • Corporate use of Google’s ContentID to claim ownership of public domain works is.gd/CAbhay
  • In the so-called year of the e-book, retail bookshops are reporting brisk sales for high-priced titles is.gd/CgoRqa
  • #Copyright & “remix culture”: The new Prohibition? bit.ly/sDo3Vj /HT @howardknopf | Oy.
  • “There is a legitimate policy dispute about how disruptive government enforcement powers should be” is.gd/3G9Qeh /HT @howardknopf #SOPA #copyright
  • RT @BerinSzoka: Is #SOPA markup still on for Thursday? Not on House Judiciary page … rules require 36 hours’ notice #OPEN #copyright
  • Visual Resources Assn.: Fair use of images for teaching, research & study is.gd/WhgONl [pdf] #copyright
  • William Patry, “How to Fix Copyright” out now is.gd/HuddpU #copyright
  • HathiTrust response to Authors Guild claims of #copyright infringement is.gd/AiwwlG [pdf]
  • William Patry (2005) on Bikram Yoga’s #copyright claim is.gd/RDiQaZ & why Bikram press release is wrong is.gd/unhCKh
  • RE is.gd/OcI4jd @CopyrightOffice says Bikram Yoga is exercise, not protectible choreography is.gd/okhXZp #copyright
  • 75 years in, Consumer Reports makes money in print and online is.gd/qdTjPu
  • USA: Even without #SOPA, court OKs private #domain seizure based upon counterfeit sales allegation is.gd/XwrkDu

Written by Copycense Editorial

12/17/2011 at 12:00

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Hachette Memo & Indie Publishing, Pt. 2

More commentary on the leaked Hachette memo that purports to justify why traditional publishers remain relevant.

Pull Quote #3 (Konrath-Eisler)

In fact, self-publishing has a pretty simple definition: it means you keep the rights to your book and publish it yourself using distributor/retailers like Amazon, Apple, B&N, Kobo, Smashwords, and Sony, typically retaining 70% of the cover price instead of the 17.5% offered by legacy publishers (for digital editions). This isn’t what “most people” mean when they say self-publishing; it’s what everybody means when they say self-publishing. If Hachette really doesn’t know what self-publishing is, its executives are in worse trouble than even their memo reveals.

Here is what I don’t understand: why the constant references to self-publishing? Self-publishing reinforces negative connotations of vanity, and by extension vanity press. In contrast, indie publishing not only avoids the grammatically stick hyphenation, but also serves as an accurate description of what authors do when they successfully publish their books. As Amir Said observed about a month ago, folks refer to indie record labels, indie producers and indie filmmakers, and in all of those circumstances, the creators are developing, marketing, and selling works to audiences.

Why should authors who write and publish their own works be denigrated by the term self-publishing, instead of applauded for their entrepreneurial spirit through the term indie publishing? They shouldn’t.

Written by Dr. K Matthew Dames

12/16/2011 at 13:15

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Hachette Memo & Indie Publishing, Pt. 1

The Hachette memo is weak. If that was supposed to really the troops … Well, maybe not so much.

And J.A. Konrath and Barry Eisler crush Hachette’s attempt to reframe the issue as one of value and expertise.

And onto my comments.

Pull Quote #1 (Hachette)

1. Curator: We find and nurture talent

Any business that has “superstar economics” as its central operating principle doesn’t “find and nurture talent.” It’s in the lottery and cultural commodities businesses. As Yochai Benkler has noted

When the economics of industrial production require high up-front costs and low marginal costs, the producers must focus on creating a few superstars and making sure that everyone tunes in to listen or watch them. This requires that they focus on averaging out what consumers are most likely to buy. This works reasonably well as long as there is no better substitute. As long as it is expensive to produce music or the evening news, there are indeed few competitors for top billing, and the star system can function. Once every person on the planet … can easily talk to their friends and compatriots, the competition becomes tougher. It does not mean that there is no continued role for the mass-produced and mass-marketed cultural products—be they Britney Spears or the broadcast news. It does, however, mean that many more “niche markets” — if markets, rather than conversations, are what they should be called — begin to play an ever-increasing role in the total mix of our cultural production system. The economics of production in a digital environment should lead us to expect an increase in the relative salience of nonmarket production models in the overall mix of our information production system, and it is efficient for this to happen — more information will be produced, and much of it will be available for its users at its marginal cost. (Benkler, 2006: 55-56)

Said another way, if you need to push units — and Hachette is under enormous pressure to push units — you are not in the business of trying to find talent that can sell consistently. Talent that sells consistently doesn’t even cover the annual cost of photocopying. Business that need to push units need blockbusters. If they can get that from singing and selling Snooki as opposed to, say, KMD, then it sucks to be somebody like KMD if KMD wants a major publishing contract. If KMD can’t move big units, KMD is done as a major publishing prospect.

But, see, KMD had no options before. Even as an author who can’t move blockbuster units, an author like KMD has options now.

One more thing: there’s a credible argument that indicates large publishers aren’t even good at pushing units. As Konrath noted, “[W]ith so many books losing money, so many authors being dropped, so many titles going out of print, perhaps expertise isn’t quite the right word.”

Pull Quote #2 (Hachette)

We protect authors’ intellectual property through strict anti-piracy measures and territorial controls.

First thing I thought of when I saw “territorial controls” was DVD region encoding. The thought is not favorable. Separately, Eisler cogently remarked this sounds like “Your book will not be available in many markets where people would like to buy it.”

As to publishers “protect[ing] authors’ intellectual property,” standard publishing industry contracts seem less onerous than comparable contracts in the recording and movie industries. But comparing favorably to contracts offered by mainstream movie and recording companies is sort of like asking whether you prefer to be gored by a bull in Pamplona, or struck by a black mamba in Mozambique.

Further, I question whether publishers are interested in “protect[ing] authors’ intellectual property.” Instead, what publishers seek to protect is their perceived economic entitlement, which is attached to the intellectual property right. The right, nominally, belongs to an author. The perceived economic entitlement, on the other hand, belongs to the publisher. As a business proposition, a publisher cares little about the author — or even the rights — beyond its belief that the exclusive rights are the work’s earnings mechanism, and that the publisher is entitled to earn upon production of the work.

It is piracy paradigm thinking at its most basic.

Written by Dr. K Matthew Dames

12/16/2011 at 10:15

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Libraries & E-Book Lending

Pull Quote #1

As the digital era unfolds, the role of libraries in the distribution of e-books has emerged as a significant issue of contention.

This misses the broader issue. In a piracy paradigm environment, ANY use by ANY consumer or organization that cannot be metered, measured and monetized is, de facto, “a significant issue of contention.” Former AAP executive director Patricia Schroeder made this apparent a decade ago when she made now infamous remarks about libraries expecting publishers to give their content away. The “digital era” was in full swing when Schroeder made her remarks in 2001, and libraries’ role in the [free] distribution of books was “a significant issue of contention” for publishers even then.

What has changed, though, is the corporate publishing industry realizes it finally is facing the same issues the recording industry faced in the late 1990s. Corporate publishing executives know they can’t stop it, and they don’t even know how to contain it. Unlike the recording industry, though, publishing cannot fall back on a lucrative format shift market to bail them out, and Amazon is viable enough an option for writers and self-publishers that both groups can opt out of standard contracts that, if signed, would make them indentured servants.

Now the smart libraries will figure out a way to pull an Amazon and connect writers (both for trade and scholarly publishing) with readers — and do so in a way that doesn’t compete with Amazon, and which doesn’t rely on advertising. Hard work, yes, but it’s not like libraries can afford to wait on municipal or institutional funding.

There’s another way to go for librarians and library executives: forget about being super smart and competing with Amazon.com. Instead, just be professional: know what is in your electronic content contracts, and learn how to negotiate better terms and conditions for your institution and patrons. Or connect with someone or some institution that does.

Connecting writers and readers as I imagine above requires extraordinary resources and access to extraordinary talent. Those things may not be within reach for every library. On the other hand, every time a librarian signs a license agreement without understanding its terms and conditions, he or she is committing professional malpractice. It is inexcusable, especially when tens of millions of dollars are at stake each year. Turn in your MLS and find another line of work.

Written by Dr. K Matthew Dames

12/15/2011 at 08:25

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Louis C.K. Comedy Tour

Most folks will focus on the balance sheet as a sign of Louis C.K.’s success

The show went on sale at noon on Saturday, December 10th. 12 hours later, we had over 50,000 purchases and had earned $250,000, breaking even on the cost of production and website. As of [Tuesday, Dec. 13], we’ve sold over 110,000 copies for a total of over $500,000. Minus some money for PayPal charges etc, I have a profit around $200,000 (after taxes $75.58).

(Truth be told, if LCK must pay self-employment taxes, his final take will be about $75.58.)

What immediately struck me was the simplicity and usability of his Web site (although the red font on dark background was hard to read), and his approach to sharing the filmed performance on BitTorrent

To those who might wish to “torrent” this video: look, I don’t really get the whole “torrent” thing. I don’t know enough about it to judge either way. But I’d just like you to consider this: I made this video extremely easy to use against well-informed advice. I was told that it would be easier to torrent the way I made it, but I chose to do it this way anyway, because I want it to be easy for people to watch and enjoy this video in any way they want without “corporate” restrictions.

Please bear in mind that I am not a company or a corporation. I’m just some guy. I paid for the production and posting of this video with my own money. I would like to be able to post more material to the fans in this way, which makes it cheaper for the buyer and more pleasant for me. So, please help me keep this being a good idea. I can’t stop you from torrenting; all I can do is politely ask you to pay your five little dollars, enjoy the video, and let other people find it in the same way.

Sincerely,
Louis C.K.

It’s frank and without whine. And it subtly addresses what I think is the biggest issue people miss today with respect to copyright: its utility to individual creators, as opposed to its use by multinational corporate copyright holding companies.

What fewer people will mention is the inordinate amount of work Louis C.K. needed to put in — likely for decades — to get to a point where he could benefit from making a $200,000 profit based upon $5 show sales. A performer only can pull something like this if he or she has an audience that is willing to buy the product, AND promote that product to others who may not be part of the audience.

Therefore, Louis C.K.’s success isn’t that he has profited on this single show. It’s that he survived in the business long enough to put himself in a position to profit from this single show. The next step is for him to be able to replicate this success in future shows, after the novelty has disappeared.

Written by Dr. K Matthew Dames

12/14/2011 at 07:51

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