COPYCENSE

“Traditional physical libraries, while indispensable in modern societies, suffer from the fragility of their contents, the scarcity of their shelf space, the inefficiency of their search and retrieval systems, and the exclusivity of their access policies. Libraries safeguard the culture and history of civilizations, provide free or reduced-price access to millions of books as a public good, and empower visitors to participate more fully in society and enrich their personal and creative lives. At the same time, physical libraries are vulnerable to war, revolution, and natural disasters, all of which together claimed well over 100 million books in the twentieth century alone.

“With the widespread use of personal computers and the Internet, it has finally become feasible to create open access, efficiently searchable, infinitely reproducible digital libraries on the scale of the world’s great physical libraries. Since the popularization of the World Wide Web in the 1990s, digital libraries have “exploded” in number and diversity. But the creation of universal digital libraries is still proceeding unacceptably slowly. Millions of Internet users who look to the Web as their “information source of first resort” are not accessing the best that world civilization has to offer. In the absence of digital access, many great works of literature and social commentary cannot be electronically searched for relevance to readers.

“This article will detail an agenda of copyright reforms to enable the rapid digitization and widespread dissemination of books, periodicals, and audiovisual materials, particularly those that are or should be in the public domain. As several high-profile disputes involving Google, the Internet Archive, and other digital libraries have illustrated, the potential of digital technology to archive and ensure easy access to all the world’s knowledge is being artificially impeded by overbroad statutory and judicial restraints on the Internet-enabled distribution of once-copyrighted material. The current regime for copyright protection of written and recorded works threatens to impede the building of universal digital libraries, especially cooperatively-produced open source and public domain libraries such as Project Gutenberg, and private projects to digitize and index entire libraries of books, such as Google Print.”

Hannibal Travis. Building Universal Digital Libraries: An Agenda for Copyright Reform. SSRN. Aug. 25, 2005.

CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.

“Recent announcements regarding electronic books have breathed fresh life into a seemingly moribund market. But some experts say e-books need to do more than move ink onto digital displays to go mainstream.

“Sony announced on Monday that its Sony Reader will be sold at Borders bookstores for between $300 and $400 and texts will be available for download from the Sony Connect online store this summer.

“But despite their promise, experts warn that electronic books won’t make a mainstream splash until more titles are available, prices drop and they do more than just replace ink and paper with a digital display.

“The news raises a question: Is there suddenly a market for what so far has been a novelty act?”

Elinor Mills. E-books, Has Your Time Come? News.com. April 5, 2006.

See also:

Reuters. Harry Potter Publisher Sees Magic In Digital Ink. News.com. April 4, 2006.

Candace Lombardi. Borders To Sell Sony Digital Reading Device. News.com. April 3, 2006.

CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.

This question has been batted around in the press for the past week. In a way, the fact that the question is being posed at all is remarkable, because it signals that the digital rights management debate has begun moving into wide public discourse after a long period in which only geeks and lawyers even knew the proper meaning of the acronym DRM. This article outlines the rise in DRM’s Q Score among regular media consumers over the past five months, and discusses Sun Microsystems’ Open Media Commons.

Among people who follow copyright issues, DRM (or “copy protection”) has been controversial since Congress changed U.S. copyright law in 1998 to illegalize any attempt to circumvent, crack, or hack past “a technological measure that effectively controls access to a [protected] work” (See Section 1201 of the Copyright Act.) Various parties have complained about the anticircumvention provisions of the Digital Millennium Copyright Act since they were enacted into law in 1998; the complaints continue now, as the Copyright Office as it holds its third rulemaking proceeding on the practical effects of Section 1201’s anticircumvention provisions.

Much of the DRM debate, however, has found a limited audience. Copyright lawyers discussed the issues surrounding DRM and anticircumvention because of the Digital Millennium Copyright Act. Companies with extensive copyrighted holdings, seeking to protect their digital assets, discussed DRM as a business and security issue. Finally, scientists and computer technologists whose work was affected by DRM or the DMCA (such as Princeton’s Edward Felten) discussed such issues. But this limited audience was not nearly broad enough for DRM to become a consumer rights issue.

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Why has the Smithsonian Institution, whose mission is to increase and diffuse knowledge, cut a deal with Showtime Networks that gives the cable broadcaster near-exclusive use of the Smithsonian’s archives? The deal effectively hands control of the Institution’s archives to a private company.

According to Tuesday’s WashingtonPost.com report, the deal essentially gives Showtime right of first refusal over any broadcast or film work that may accrue from a person’s research. “Jeanny Kim, the vice president for media services at Smithsonian Business Ventures, said the filmmakers who were doing ‘more than an incidental treatment’ of a subject mainly from Smithsonian materials or wishing to focus on a Smithsonian curator or scientist would first have to offer the idea to Smithsonian/Showtime. Otherwise, the archives could not be used outside the realm of news programs (such as “60 Minutes” and “Dateline”) in most cases.”

Showtime is owned by CBS Corporation, which also owns UPN and broadcast television syndicator King World (which owns and distributes The Oprah Winfrey Show).

A deal like this does not come together overnight. I wonder how this deal flew under the radar for so long that its existence didn’t come to light before the parties signed a contract. A quick browse of the Smithsonian’s press section offers no news about this deal. In fact, the press paid little attention to the announcement last month of the Smithsonian-Showtime “video on demand” (VOD) channel.

Jacqueline Trescott. Smithsonian Deal With Showtime Restricts Access By Filmmakers. WashingtonPost.com. April 4, 2006.

See also:

Edward Wyatt. Smithsonian-Showtime TV Deal Raises Concerns. The New York Times. March 31, 2006.

Anthony Crupi. Showtime, Smithsonian Launch VOD. MediaWeek. March 8, 2006.

Updates:

The Washington Post. The Nation’s Attic (Editorial). April 24, 2006.

Jacqueline Trescott. Smithsonian Investigating Its Sales Division’s Salaries. WashingtonPost.com. April 19, 2006.

Jacqueline Trescott. Ken Burns Gives Voice to Filmmakers’ Concerns. WashingtonPost.com. April 19, 2006.

Jacqueline Trescott. End Smithsonian-Showtime Deal, Filmmakers and Historians Ask. WashingtonPost.com. April 19, 2006.

Carl Malamud. Dear Secretary Small. Center for American Progress. April 17, 2006.

Center for American Progress. Letter to Secretary Small from 215 Concerned Citizens. April 17, 2006.

if:book. Corporate Creep. April 6, 2006.

CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.

What do you do when a company creates a device that is so popular that it hands you a market that almost beats free? You get greedy and seek to raise prices. This is what is happening right now as the recording labels renegotiate iTunes license fees with Apple Computer and Steve Jobs.

To review briefly, the music industry has been unable to give away its music — even legally — for the past decade. In fact, hundreds of thousands of folks preferred to swap music (legally and illegally) online in various fora, including the download networks Napster and Grokster. The industry’s lawsuits didn’t stop free downloading, nor did Big Music’s feeble attempts at creating their own online marketplaces.

Then in late 2001, Jobs and Apple rolled out iTunes and the iPod. The response to both was so universally positive that even recording artists were pleased. (I recall reading Dr. Dre saying “Somebody finally got it right.”) in February of this year, Apple celebrated its 1 billionth download from the iTunes music store. At 70 cents per track (the approximate amount the labels share in fees for each 99 cent iTunes download), that means Apple has handed Big Music a market that is worth nearly $1 billion.

Again, before iTunes, Big Music had nothing more than dry hands and queasy stomachs when it came to online music.

Now, according to an Associated Press report, “some labels feel hamstrung by Jobs’ insistence on pricing all tracks at 99 cents. With the labels expected to enter into music licensing discussions with Apple this year, any moves by Apple to abandon uniform pricing will test whether music fans are willing to pay more to download music that many only a few years ago acquired for free.” Instead, Big Music wants to impose a pricing structure that mirrors how it sells CDs.

Here’s the problem with that: Big Music no longer seems to be able to sell its own product successfully. One of the reasons iTunes is so successful is it allows people to buy singles, which the music industry eliminated because it wanted to force consumers to buy (higher-priced) entire albums. But people (especially young people) did not want to pay nearly $20 for 20 tracks, 16 of which usually were filler. Instead, people either didn’t buy or shared files online.

And let’s not even discuss Big Music’s gambits like the Sony BMG rootkit scandal, which lead to a class action lawsuit and settlement over the label’s dangerous use of virus-inviting software in a DRM scheme implemented on several CDs. Say what you will about Apple’s FairPlay DRM: thus far, it has not been found to be a computer security risk

Now, Big Music wants to move past a proven 99 cent price point in order to get more money from a business that has proven it can sell music better than the labels. I can’t understand how these people stay in business.

Associated Press. Music Labels, Apple Divided Over Pricing As Talks Approach. SiliconValley.com. April 3, 2006.

CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.