©ollectanea

A little while ago, a friend forwarded to me a note about Steve Jobs making a plea to the big four record companies to authorize sales of mp3s, free of drm. I read the headlines of the Paris papers (to practice French, and to see what makes it to front page in France), and this is in at the moment: Le Monde.fr : S. Jobs (Apple) plaide pour des telechargements de musique sans protection. It says "Steve Jobs pleads for downloads of music without protection." Front page of Le Monde, a major Paris paper. An important point of Jobs' article was that 2 1/2 of the 4 labels are owned by European (including Britain) companies, and Europeans are complaining the most about the problem with interoperability of music downloads and portable players.

Earlier this year there was a big meeting of the major labels in Europe and several notes about this subject drifted out from that meeting, as I mentioned in earlier blog posts here. More signs that this could be the year the dam bursts.

Evan Brown has a succinct explanation of the various parts of the new FAIR USE Act, the bill introduced in Congress last week that would make several changes to the anti-circumvention provisions to allow certain uses that have become problematic over the 8 years those provisions have been in place: InternetCases.com -- Evan Brown, Chicago intellectual property and Internet attorney. He provides a link to the bill so you can read along as he explains.

He also points out 2 problems with the bill, but not the biggest problem of all -- its likelihood, or lack there of, of getting passed. Still, this bill in some form or another has been and I bet, will continue to be introduced in every legislative session until some day, anti-circumvention is going to be modified in some ways. It may not happen until those who use DRM have given up on it in favor of other business models...

Microsoft has made headlines a lot lately. The release of Vista, a new Book Search interface, a scathing attack on Google earlier this week before an AAP gathering in NY, and now, this NY Times article, Searching for Michael Jordan? Microsoft Wants a Better Way - New York Times, featuring Microsoft's efforts to improve its statute in the world of online search.

I saw an interesting connection among these headlines. I've been reading about how Vista packs the biggest DRM accommodating punch of any operating system ever (Google search on something like Vista drm to get a feel for the commentary), the speech before the AAP painted Google as cavalier about copyright and MS as totally supportive of the publishing industry, and the stats in the NY Times piece show that Microsoft is near the bottom of the heap regarding the use of, and lack of recent growth of, its search features.

These pieces look like parts of a very aggressive campaign to claw its way out of its own 20th Century niche, taking no prisoners, no holds barred. It has all the hallmarks of a political campaign, including the mudslinging. Tim O'Reilly chides MS and insists it is bigger than this, that we expect more out of a player of this size. Larry Lessig believes MS is just plain wrong about Google's cavalier attitude. I certainly agree with Lessig's sentiments, but as for whether we can expect more from MS, I don't know. Perhaps MS is just as much a victim of its business model as Holly wood and the publishers are of theirs (O'Reilly's comments again, in another entry)?

I wonder whether in working together as they must have, to implement such powerful DRM controls in Vista, whether they may actually impair their own progress towards more efficient business models in the future. In fact, I often think about DRM in the context of the old adage, "give them enough rope and they'll hang themselves." Many of the commentaries about Vista's DRM suggest that it's like a suicide note... Only time will tell.

Judith Thomas does a masterful job of explaining best practices and challenges in creating a digital motion media collection in this article, Digital Video, the Final Frontier - 1/15/2004 - netConnect. I'm studying digitizing video right now at the iSchool, and this was an optional reading. I found it most inspiring because there's not one mention of copyright or rights or permissions in the entire article. It's simply not on the table. Wow. That's like a dream, isn't it?

Several years ago I was invited by the Library of Congress to participate in a 3 day discussion about digital archiving. The setting was in gorgeous Berkeley, CA at a fabulous hotel. The other invitees were a glittering array, including the Register of Copyrights, MaryBeth Peters. I gladly accepted, and I felt honored to be invited. But, a curious thing happened at the very beginning of the gathering. All the participants agreed that they would define the copyright issues out of the discussion. I don't know how the Register felt about this, but it made me feel a little under-utilized, to say the least (useless, puts it more bluntly). I was absolutely amazed at the quantity of ideas entertained, the quality of the solutions proffered, the creativity of the group. If copyright had been on the table, the group might just was well have sat around the pool gossiping. It would have been, in effect, a nonstarter.

Since that meeting, I've begun more and more to believe that for some things libraries need to do for the future, they just need to be done without much concern for what the law says today. The very idea that anyone who's job it is, or I should say who's mission in life it is, to preserve for posterity, simply cannot stand by and watch important pieces of the 20th century just crumble before their eyes because of fear of getting sued, more often than not, by someone who could care less what you're doing, or who's actually dead, or who's descendants could care less, etc. etc. etc. etc. etc. etc.

I noticed earlier today a post at Michael Geist's blog about a remarkable speech by Bruce Lehman, former Commissioner of Patents and architect of the DMCA, notably including the anti-circumvention provisions, in which he suggests that we're entering a post-copyright era. He also admits that the DMCA as an approach has failed...

This idea that copyright is becoming irrelevant is actually one of the things that contributed considerably to my decision to get a degree in information studies and refocus, away from copyright. It's just terribly out of sync right now and as much as I hate to admit it, I truly feel that it just has to be ignored in some of its more egregiously out of sync aspects. (I'm waiting to be struck dead by a lightening bolt... waiting... waiting...) This is like the moral dilemma of our time (for those of us who think about things like this), like civil disobedience. Defiant preservation, organization, indexing, and access. Will wrong-headed and failed laws go quietly into the night at some point, or do we just turn away and embrace new paradigms created on their ruins, such as Creative Commons licenses and new business models that rely on something other than artificial scarcity to motivate creativity? And will libraries just quietly do what has to be done?

It's official. The third largest music distributor, EMI, announced today with Apple's Steve Jobs that it would offer its entire catalog DRM-free on iTunes: EMI, Apple To Sell DRM-Free Music for $1.29/song. Et voila, do we have the beginning of the end for DRM? It will depend (lawyerly answer, no?). But for the moment at least, it's worth celebrating.

A fellow Texan, and a fellow Ph.D. candidate (at North Texas State University), Brian Kenney gave a lecture about 2 weeks ago, ALA TechSource | Does Print Still Matter? Brian Kenney on the Future of Content in a 2.0 World, that really piqued my interest. He has much to say on the subject of the future of libraries, and I recommend that you read the ALA Tech Source article about his talk. But the thing that really caught my eye was an example he used of a traditional publisher successfully integrating Web 2.0 social technologies into its online publishing for the most part, sans DRM -- The New York Times. I visit this site all the time. Many of my bookmarked pages are Times articles. The permalink feature allows me to preserve my links to the articles even after they would normally enter the Times' archive and require higher levels of subscription service to access them than I enjoy. Kenney points out that the Times uses other means to attract and keep customers on its site:

Kenney discussed the move by The New York Times into the 2.0 world: "...once on the site, stickiness abounds. Comments are invited on features. Video and audio extend the text content." Kenney noted there are over two dozen blogs integrated throughout the site, ranging from "Bats," about the upcoming 2007 baseball season to "On the Runway," offering a behind-the-scenes look at the fashion industry. "Most significantly," he said,"other users serve as guides to Times content. Tag clouds crop up. You can view the most popular articles by those most emailed, those most blogged, or by most popular search terms."

This integration of the user experience--and opinion--radically changes the construct of the traditional newspaper, which has relied on an editorially created hierarchy based on placement within the publication. "Real estate, in print, is everything, that and the font size of headlines," Kenney said.

This contrasts sharply with the approach of most publishers in the print world exploring business models on the Internet. Most ebooks are DRM heavy, one of the factors contributing to the lackluster performance of the genre.

The Times example also points out the decreasing importance of control in general, even to highly successful old-media businesses. The NY Times makes it easy -- not difficult of expensive -- for readers to reuse and refer to its content. Contrast this approach with some of the restrictive user licenses libraries must agree to in order to make electronic resources available to our constituents. I suppose it is just the natural evolution of business models given the shock of the potential unleashed by the Web, and that things take time. Nonetheless, it is encouraging to see such high-profile examples of publishers inviting users to make use of content, instead of asserting copyright as both a sword and a shield, when it is now possible to be profitable without so inhibiting use and enjoyment.

I've just finished reading Pam Samuelson's initial thoughts on overhauling copyright law, linked from Boing Boing, Boing Boing: Proposal to reboot and de-cruft US Copyright Law. This is a very good framework document, easy to read (sort of like the law she's suggesting we need), and very thoughtful. If anyone could pull together the kind of massive project she's talking about, Pam could.

Still, she is very realistic about the likelihood that actual legislative reform would result from the effort. She knows it's highly unlikely at least for 10 years out and that, once started, it would take another couple of decades to complete. She sees a lot of other advantages to her effort though, even if we still are stuck with our bloated 1976 Act, but I'm not so sure how realistic they are.

What she doesn't give voice to is the pessimism I sometimes feel about the likelihood of the law's becoming so irrelevant that perhaps sooner than the next 2 decades, neither copyright owners nor users will be paying much attention to it. We will all have opted out of it to a large degree -- users by ignoring it; owners by licensing and or drm'ing around it. Those directions don't sound so good, but even a best case scenario could see people having opted out by turning to other ways to make a living off creative works (sort of what John Perry Barlow predicted almost 14 years ago). The signs that this strategy is increasingly employed are popping up here and there. Still, it's like the "innovator's dilemma." Only small potatoes at first, then gradually, the alternative business models begin to improve, pick up steam, and one day, they overtake the old ways of doing things, those industry giants who couldn't see the magic in the new ideas because there wasn't enough money in them, or their current best customers weren't interested. But for the existence of the state-granted monopoly that is copyright, in fact, the tide for the creative industries would have turned long ago. Copyright has worked to make creative industries innovation-proof to a much larger degree than other industries. Perhaps to their detriment ultimately. More certainly to the detriment of the public generally.

Mark Cooper has posted a short research note, Music Downloads - A Victory for Consumers and Artists at the Stanford Center for Internet and Society. It refers to music industry data to make the case for the victory it describes. Of course, the music industry would probably draw other conclusions from the same data. But it seems fairly clear where the trajectory is going, and that copyright can indeed play less of a role in the future than the industry thought it had to. In other words, controlling copies isn't as critical to making a living as a musician who wants to sell recordings as the industry believed.

Cooper points out that we're not through yet; this is just a milestone he reports, but again, the direction seems pretty clear.

So, Apple has lowered the price of its DRM-free tunes to .99: Apple lowers price of DRM-free iTunes songs - Digital Life - MSNBC.com, and *not* in response to competition from competitors such as Walmart and Amazon that sell DRM-free tunes for even less than .99 (uh-huh). So where does that leave DRM-burdened tunes?

I did note a couple of days ago that DRM-free doesn't mean the same thing as downloaded from p2p or ripped from your own CD -- there is a license when you buy a DRM-free tune and it allows copying for personal use, but not for sharing. This story at the Seattle Times contains excerpts from both the Apple license and Amazon's license.

So the licenses say you can't share. This should come as no surprise. Honestly, I don't think the record companies need to say this, but they think they need to say this, and it's probably the only way that they could be persuaded to step into this arena at all. Ultimately, if they learn (as I think they will) that digital without DRM sells well, eventually they'll also learn that sharing need not be the death of music. Baby steps. At least they are walking now instead of barring the door and resisting all attempts to get them to join their customers in the digital world.

And what does this have to do with mass digitization projects? I have just begun to write a paper at Mass Digitization ~ changing copyright law and policy in a CommentPress blog that allows commentary paragraph by paragraph (so *you* are invited to come over and participate), and the subject of the paper is the effect of mass digitization projects on copyright law and policy. Apple, DRM-free music and the Creative Commons (among others) are all part of the story of why mass digitization projects are actually not having much of an effect at all! Google provides a notable exception, but for the most part, business models are evolving forms that tend to place copyright further into the background, behind contracts, as noted above, and more positively, behind other ways of generating revenues than controlling, counting and paying for copies. And that's what copyright law is about, or at least, that has been the primary way copyright owners exercised their exclusive rights for the last 200 years. If control over copies becomes irrelevant, does copyright law become irrelevant? That is a very interesting question. I'll be exploring it over the next 6 weeks, and invite you to explore it with me!

So says Andy Oram at O'Reilly Radar, Music industry association recommends flat-rate file sharing. He's talking about a rumored proposal by the Danish equivalent of the RIAA and MPAA combined, that is, the International Federation of Phonogram and Videogram Producers, to allow unlimited file-sharing for a monthly fee spread across all users of Internet Service Providers.

This idea is not new, of course. Neil Netanel wrote a proposal several years ago calling for the NUL (Noncommercial Use Levy), and outlining all the potential problems with it. Terry Fisher wrote an entire book on the subject of how to fund the music industry without charging by the song/album, Promises to Keep. But this is the first time that an industry organization has seriously (or at least is reported to have seriously) accepted that this might be a better system than what we have now.

Oram's short post includes several other observations about DRM, competition and the differences between how the European Union and the U.S. deal with both. Good read.

After 6 weeks of drafting, posting, tracking blog statistics, and weekly writing in a journal about the experience, I have just completed my blogging experiment at Mass digitization ~ Changing copyright law and policy, by posting the Conclusion today. Here's the first paragraph:

The story of mass digitization’s effect on copyright law and policy is the story of confronting and eventually calming fears. Sometimes the only way to calm fears is just to stand up, stride towards the light switch, and show that there’s nothing to be afraid of. Turn on the light. Look under the bed. Open the closet door. See? There’s nothing there. Didn’t Franklin Roosevelt say something about this?

Since I announced the start of the experiment here on Collectanea, I thought I would announce its conclusion as well. If you haven't visited yet, or if you visited early in the drafting process, you might like to visit again to read the entire draft (7 fairly short sections). Be sure to check out the Project Resources page. It has links to all the online materials referred to in the draft, and other materials that support or illustrate the argument.

It has been a very interesting experience to draft in blog-style. My next step will be to polish the draft and give it journal-style. I will be able to compare the two drafts and perhaps say something useful about how the styles differ. I also have skads of data about daily page views, time on the pages, and how many pages were viewed per visit. It's amazing what Google Analytics can tell you about your blog. If it weren't for Google Analytics in fact (and other blog statistics programs), the story we would relate about our experiences blogging would be far removed from the truth because without stats, we only know readers are there if they comment. Hardly *anyone* comments though. The comment rate on Mass Digitization was roughly .2% -- that's point two percent, not two percent. So, for 1000 pages viewed, the blog received 2 comments. This rate is consistent with rates I've read in broad studies of blogs. Of course, there are exceptions, but most of us are not really visibly building a community of commenters.

But we are reaching people. Those 1000 pages viewed represent about 500+ people who stopped by, even if only for a few minutes. So, the blog entries did get viewed in whole or in part by many folks who might not read the article in its polished journal-style form. It is an interesting hypothesis, how blogs affect scholarship. I will be posting my paper on that subject at the Crash Course when I complete the paper in about 2 weeks. And Mass Digitization will be published on CIP's Website in the spring.

If you are one of those 500+ people, THANK YOU! It is very nice to know you are there --

... Abandoning DRM anyway. Warner's Entire Digital Music Catalog For Sale on Amazon as MP3s | Listening Post from Wired.com. With this announcement on Wired news, we learn that 3 of the 4 majors have now concluded that sales of mp3s (unprotected tracks) will likely expand the digital music business more effectively than DRMd tracks. Duh. Sony/BMG is still not so sure. What does it take?

At the beginning of the year there were many signs of this potential. I blogged about it numerous times beginning on January 27, on February 6, April 2 (a day to remember, I noted) and sporadically over the rest of the year (pull up the DRM category from the sidebar to see these posts cumulated). It turned out to be just as big a watershed year as I had optimistically hoped.

So, what's in store for 2008? I feel encouraged by a successful prediction. Maybe I'm turning into a seer. I do have a crystal ball -- it belonged to my Irish gypsy grandmother, Dorothea Genevieve. But I think it's easier to read the news than a crystal ball. This stuff was way overdue. What else is overdue?

Well, I'm excited about the possibility of another watershed year. What about you? What do you think we'll see in the copyright world in 2008? Let's be realistic now: no saying that Congress will roll back the absurd CTEA or that MPAA will endorse such a roll-back (which is the only way it would happen), or that the US Trade Rep will stop pressuring Canada to adopt our own failed DRM strategies. But putting the really unlikely aside, what do you think we're likely to see in 2008? Come on; read some tea leaves; tell us what you think!

No need to comment really: Sony BMG Plans to Drop DRM. DRM is history in the music biz. Now for books and movies.