February 2009 Archives

Fitter, Happier, More Productive

In the New York Times, Authors Guild president Roy Blount, Jr, makes the case against the Kindle's text to speech synthesizer, The Kindle Swindle?: "True, you can already get software that will read aloud whatever is on your computer. But Kindle 2 is being sold specifically as a new, improved, multimedia version of books — every title is an e-book and an audio book rolled into one. And whereas e-books have yet to win mainstream enthusiasm, audio books are a billion-dollar market, and growing. Audio rights are not generally packaged with e-book rights. They are more valuable than e-book rights. Income from audio books helps not inconsiderably to keep authors, and publishers, afloat."

Engadget's Nikay Patel interviewed Paul Aiken, Executive Director of the Authors Guild, "Just because Amazon does something a bit clever with their ebook reader and adds technology which allows them to render text into speech doesn't mean they get to exploit it for all it's worth, without sharing with authors and publishers. In our view this is a legitimate market."

In the last few years, lawyers have been digging into musty old file cabinets to review licenses for rights licensed for old films and television shows, in order to clear them to sell the works on DVD or make available on streaming services. These original licensing agreements never imagined home video or internet streaming uses and not granted rights to those then-uninvented possibilities. Did publishers merely fail to imagine the possibilities?

Is an audiobook recording a completely different product than an e-book run through a text-to-speech synthesizer? Does a book of sheet music compete in the same marketplace with a recording of that same piece of music? What about a MIDI file that allows a synthesizer to play back a piece of music? Does that compete with a recording? With the sheet music?

Update. Right after I posted this, Amazon announced that it would offer publishers the ability to block the Kindle from reading books to the Kindle owner. Brad Stone reported on the NYT Bits Blog, Amazon Backs off Text-to-Speech Feature in Kindle. Amazon's states,

"Kindle 2's experimental text-to-speech feature is legal: no copy is made, no derivative work is created, and no performance is being given. Furthermore, we ourselves are a major participant in the professionally narrated audiobooks business through our subsidiaries Audible and Brilliance. We believe text-to-speech will introduce new customers to the convenience of listening to books and thereby grow the professionally narrated audiobooks business.

Nevertheless, we strongly believe many rights-holders will be more comfortable with the text-to-speech feature if they are in the driver's seat."

Lessig comments, Caving into bullies (aka, here we go again): "We had this battle before. In 2001, Adobe released e-book technology that gave rights holders (including publishers of public domain books) the ability to control whether the Adobe e-book reader read the book aloud. The story got famous when it was shown that one of its public domain works -- Alice's Adventures in Wonderland -- was marked to forbid the book to be read aloud."

(Post title reference: Radiohead's song Fitter Happier features Macintalk on lead vocals.)

Previously: Take a Look, It's in a Book.

Remix Revisited

The NY Public Library event Remix: Making Art and Commerce Thrive in the Hybrid Economy with Lawrence Lessig, Shepard Fairey, Steven Johnson was well-attended and lively discussion, even if the panel was comprised entirely of copyright moderates with no mainstream maximalists or crazy abolitionists.

Here are some rough notes, transcribed and re-ordered from what I wrote down at the panel:

On the continuum of copyright use, the panel talked about a few different uses that can be classified in the following ways:

Incidental and de minimis use. This is where a copyrighted work may appear in another work, either as part of the background. Because of the pervasiveness of copyrighted works all around us, perhaps a more generous threshold than the 6th Circuit's Bridgeport sampling standard (where any use is an infringing use, no matter how small) is the sensible standard.

Transformative use for commentary, criticism
Here is, obviously, the heart of the panel. If a work is transformative and used for non-commercial or substitutionary purposes, it should be classified-- more often than not-- as a fair use.

Is mashup creative? Does it shed a light on the works it builds from? Is the law able to judge the merit of the creativity? If a mashup derives its impact from borrowing the hook, core, or the entire narrative structure, shouldn't there be some level of use that deserves compensation? Where do we draw the line?

But non-commercial transformative uses of copyrighted works online are often lumped in for enforcement purposes with infringing distributions or performances.

How often do we see iconic images in a public space that aren't commercial images?

Commercial substitution.
Siknce Grokster, P2P usage is up substantially. And what percentage of those uses are simply straight-up infringing uses that substitute for purchases of copies? How much P2P usage is simply plain old piracy of current, popular, copyrighted works? That P2P usage is up since Grokster isn't necessarily something to celebrate and RIAA lawsuits aren't necessarily something to ridicule. Widescale piracy does need to be deterred. Whether these lawsuits are

Miscellany
At its best, grassroots activism is actually from the roots, not from above. And it's going to be messy.

Institutions are made out of people. They're PEOPLE! PEOPLE!

The NY Times' Jennifer Schuessler attended and wrote up a succinct summary of the discussion, Steal This Blog Post! "The event felt a little like Burning Man for the so-called Copy Left, with body art to match. Shortly before the talking started, two big guys with big cameras ushered a woman with a cool shoulder tattoo of Fairey’s Obama poster out of her seat. Enforcers from the Associated Press, which claims Fairey violated its copyright, perhaps?"

Here's the complaint in Fairey's lawsuit against the AP seeking a declaratory judgment that "Hope" is not an infringing derivative work, Fairey v. AP

The New York Times, Artist Sues The A.P. Over Obama Image

Yesterday, Fresh Air broadcast an interview with Fairey, Shepard Fairey: Inspiration Or Infringement?, "He joins Fresh Air to talk about the image, the dispute, and why he thinks his poster qualifies as a protected work under Fair Use provisions."

Fairey has inspired a whole genre of Hope-inspired images and parodies, such as a
Watchmen-inspired image

Preparing for the Post-TV World

Thanks to the signing of the DTV Delay Act, television broadcasters continue to send out their sweet, sweet analog signals a full week after the original cutoff date. And those broadcasters will continue to broadcast both analog and digital signals until June 12.

Note that 641 of the 1800 licensed television broadcast stations across the country have already switched off their analog broadcast facilities.

While many television viewers in the US subscribe to cable or satellite service, there is a significant public interest in ensuring that anyone who wishes to obtain broadcast television should be able to. After all, these are public airwaves, which the broadcasters are allowed to use by authority of Congress. Broadcast TV is not merely soap operas, infomercials and bad sitcoms. It is local news, major public events and news.

New York Times, Digital TV Beckons, but Many Miss the Call, "That so many viewers here and around the country risk losing something as basic as a free television signal is a function, at least in part, of the government’s failure to anticipate that those most affected would be among the nation’s most frail and vulnerable."

Eliot Van Buskirk, Wired.com, How We Bungled the Digital Television Transition: "America's transition to over-the-air digital television signals, which netted the government $19 billion in a wireless spectrum auction, was doomed from the start, thanks to a flawed voucher program and a time frame that left the country stranded between administrations."

At the same time, studios and networks are connecting with audiences outside of broadcast, cable and satellite, thanks to the internet.

But don't plan on using the internet to replace current TV service just yet.

Boxee makes a media center software application that runs on computers as well as the Apple TV media extender. Boxee's best feature is that it connects TV style viewing with internet video streaming. This provided a way to watch programs from the deep library of the NBC and Fox joint venture, Hulu.

That was until Hulu's "content partners" (the studios who own the copyrights on the various programs) discovered Boxee and realized that they hadn't contemplated viewers watching Hulu on real televisions and asked Boxee to discontinue streaming Hulu programming. Interestingly, Hulu never had an agreement with Boxee.

Boxee, The Hulu Situation, "our goal has always been to drive users to legal sources of content that are publicly available on the Internet. we have many content partners who are generating revenue from boxee users and we will work with Hulu and their partners to resolve the situation as quickly as possible."

Hulu, Doing Hard Things, " While we never had a formal relationship with Boxee, we are under no illusions about the likely Boxee user response from this move. This has weighed heavily on the Hulu team, and we know it will weigh even more so on Boxee users."

Does internet streaming generate revenues comparable to selling advertising on first-run broadcast, rights to second-run syndication and DVDs? (Obviously not). How can copyright owners contemplate future uses of licensed content when entering into licensing deals?

Marc Hedlund, Hulu's Superbowl Ad and the Boxee Fight "To your TV is something completely different, and from the "content providers'" point of view, completely wrong. Aren't Apple and Tivo and YouTube bad enough as it is?"

Dan Wallach, Freedom to Tinker, Hulu abandons Boxee—now what?: "Also interesting to note is the acknowledgment that there was no formal relationship between Hulu and Boxee. That's the power of open standards. Hulu was publishing bits. Boxee was consuming those bits. The result? An integrated system, good enough to seriously consider dropping your cable TV subscription."

Janko Roettgers, NewTeeVee, Is Hulu Driving People Back to Piracy? "Applications like the Torrent Episode Downloader (TED) make it easy to subscribe to whole seasons of your favorite TV show via BitTorrent, and established TV torrent sites like EZTV even offer P2P streaming for immediate access."

Fred Wilson, A VC (and investor in Boxee), Why Hulu Should Embrace Boxee: "There's a consistency to the comments and it is confusion first and foremost. Hulu users don't understand the distinction between watching Hulu through Firefox or Safari and wathicng Hulu through Boxee. And many of them are coming back to watching TV because they can watch over the internet, when they want, and how they want. They feel liberated by Hulu and Boxee and see them as a match made in heaven. Which they are. And I sure hope that Hulu and its content partners come to that realization quickly."

It is possible to use the internet to watch most television programming. And The Wall Street Journal, reports that cable operators are looking to secure internet rights to have a role as content aggregators in the post-TV internet video world Cable Firms Look to Offer TV Programs Online: "Top cable-television providers and TV networks are exploring a sweeping solution to the threat of online video: putting large numbers of cable shows online, but accessible only to cable subscribers."

But we're not in the post-TV world quite yet.

Streaming Hulu content through Boxee (at least on an Apple TV) is a second rate experience to watching the same programs on broadcast or cable. Shows look far better on the digital broadcast or cablecast than on internet streaming. (Even ABC's very nice HD streams of Lost aren't as smooth as their HD broadcast.)

But as music listeners have shown, there's a threshold where portability and convenience outweighs quality. For most people MP3 quality is good enough for music. Higher fidelity digital standards (Super Audio CD, DVD-Audio) never managed to compete with the convenience of MP3. For video, online streaming is obviously coming close enough to that point where convenience trumps quality.

John Adams, not Samuel Adams

The Brooklyn Paper, Tapped out! Hook brewery is ordered to stop making ‘Obama’ ale: "Federal agents have ordered a Red Hook brewery to stop making its popular 'Hop Obama' ale — a beer that was first brewed during the presidential campaign as a way of supporting the then-underdog candidate. The cease-and-desist order was issued by the Tax and Trade Bureau of the federal Bureau of Alcohol, Tobacco and Firearms on the grounds that Sixpoint Craft Ales did not have permission from to use the president’s likeness on the tasty, hop-heavy brew."

Take a look, it's in a book

This week, Amazon announced the details of its second generation Kindle e-book reader. One of the new features is text-to-speech software that can read aloud the text of a document stored on the Kindle.

The Wall Street Journal reports that the Authors Guild is not happy with the feature, "They don't have the right to read a book out loud," said Paul Aiken, executive director of the Authors Guild. "That's an audio right, which is derivative under copyright law." New Kindle Audio Feature Causes a Stir

Typically, audio books are derivative works of the original work and are fixed in a recorded medium. The reader adds his or her own interpretation to the text. The work can stand alone as an artistic creation. (See e.g. the accolades that Jim Dale has received for his readings of the Harry Potter books). However, a Kindle 2 owner could foreseeably forego buying the more expensive audiobook to choose to read aloud the e-book.

But is the Kindle text-to-speech reading a derivative work? With the Kindle 2, the computer is generating a reading of the original work dynamically for the portion of that work the Kindle user chooses to have read aloud. Is it ever considered fixed in a tangible medium? If the text-to-speech reading isn't fixed, then it can not be a derivative work, since a work must be fixed in a tangible medium in order to be copyrightable.

If publishers worry about text-to-speech affecting the market for audiobook rights, perhaps e-book rights (and thus e-books themselves) will become more expensive.

Engadget's Nilay Patel analyzes, Know Your Rights: Does the Kindle 2's text-to-speech infringe authors' copyrights?: "This is actually pretty tough stuff -- as far as edge cases go, this one pushes right up against the boundaries of the current law. On one hand, you definitely have the right to read books that you own out loud using whatever tools you want, and on the other, authors definitely have the right to prevent others from selling audio versions of their works. The Kindle's text-to-speech feature blurs the lines between books and recordings, and that means those two rights are in conflict with each other."

See also John Siracusa's take on the past, present and future of the e-book market, The once and future e-book: on reading in the digital age - Ars Technica: "A veteran of a former turning of the e-book wheel looks at the past, present, and future of reading books on things that are not books."

Tangentially related, Apple's text-to-speech software, MacInTalk, has a major film credit in its resume. In Pixar's Wall-E, MacInTalk voiced the character Otto.

Update (2/12). Neil Gaiman weighs in with a Quick argument summary, "When you buy a book, you're also buying the right to read it aloud, have it read to you by anyone, read it to your children on long car trips, record yourself reading it and send that to your girlfriend etc. This is the same kind of thing, only without the ability to do the voices properly, and no-one's going to confuse it with an audiobook. And that any authors' societies or publishers who are thinking of spending money on fighting a fundamentally pointless legal case would be much better off taking that money and advertising and promoting what audio books are and what's good about them with it."

Evan Brown, Does the Kindle 2’s text-to-speech feature violate copyright law? "Does Aiken have a legitimate gripe? I say it depends on the technology. And the fact that there could be a difference based merely on a technological setup underscores how digital technology has sent some aspects of copyright fumbling towards absurdity."

YouTube, Fingerprinting and Fair Use

Critic and filmmaker Matt Zoller Seitz wirtes an essay about how YouTube and the DMCA Takedown procedure are harming online film criticism, The House Next Door: Copy Rites: YouTube vs. Kevin B. Lee: "When the history of intellectual property law is written, January 12, 2009 should be marked as a decisive moment. It was the day that my friend, fellow House Next Door contributor and sometime filmmaking partner Kevin B. Lee saw his entire archive of critical video essays deleted by YouTube on grounds that his work violated copyright."

The web has the potential to make multi-media criticism accessible and easy to create. Criticism and comment on a work is a paradigmatic example of Section 107 fair use.

However, because video is complex and bandwidth intensive, video hosting sites like YouTube in particular have made it possible for the non-technical critic to embed videos into a web page. And these video hosts have little desire to defend their users' alleged infringements as non-infringing fair uses. The DMCA §512(c) safe harbor creates an incentive for video hosting providers to respond promptly to notices of alleged copyright infringement and take down those allegedly infringing videos.

With the rise of audio and video fingerprinting technology, YouTube and other video hosting sites may be scanning user uploads for potential copyright infringements of works owned by their content partners. YouTube is offering its users the ability to replace copyrighted music in soundtracks with music licensed to YouTube's music library.

The EFF's Fred Von Lohmann calls the deployment of this audio fingerprinting technology, YouTube's January Fair Use Massacre: "It's clear from the Warner Music experience that YouTube's Content ID tool fails to separate the infringements from the arguable fair uses. And while YouTube offers users the option to dispute a removal (if it's an automated Content ID removal) or send a formal DMCA counter-notice (if it's an official DMCA takedown), many YouTube users, lacking legal help, are afraid to wave a red flag in front of Warner Music's lawyers. That's a toxic combination for amateur video creators on YouTube."

Does YouTube have a responsibility to promote fair use? Or is it actively helping its users by forcing them to avoid any uses that might possibly infringing?

Yochai Benchler compares the differing approaches towards creating economic opportunity through supporting broadband development in the economic stimulus bills introduced in the House and Senate, Broadband Stimulus: "Weaker or stronger, the fact that both the House and Senate bills clearly tie the funding to core goals intended to enhance distributed innovation and open participation, uncontrolled by the incumbents, and to begin to reintroduce the idea that competition from new entrants is important and requires some version of open access and interconnection regulation is a breath of fresh air."

The New York Times, But experts warn that the rural broadband effort could just as easily become a $9 billion cyberbridge to nowhere, representing the worst kind of mistakes that lawmakers could make in rushing to approve one of the largest spending bills in history without considering unintended results."