Thursday, September 30, 2010

SSRN-The Google Book Settlement as Copyright Reform by Pamela Samuelson

The Google Book Settlement as Copyright Reform

Pamela Samuelson
University of California, Berkeley - School of Law

An intriguing way to view the proposed settlement of the copyright litigation over the Google Book Search (GBS) Project is as a mechanism through which to achieve copyright reform that Congress has not yet and may never be willing to do. The settlement would, in effect, give Google a compulsory license to commercialize millions of out-of-print books, including those that are “orphans” (that is, books whose rights holders cannot readily be located), establish a revenue-sharing arrangement as to these books, authorize the creation of an institutional subscription database that would be licensed to libraries and other entities, resolve disputes between authors and publishers over who owns copyrights in electronic versions of their books, provide a safe harbor for Google for any mistakes it might make in good faith as to whether books are in the public domain or in-copyright, and immunize libraries from secondary liability for providing books to Google for GBS, among other things.

This Article explains why certain features of U.S. law, particularly copyright law, may have contributed to Google’s willingness to undertake the GBS project in the first place and later to its motivation to settle the Authors Guild lawsuit. It then demonstrates that the proposed settlement would indeed achieve a measure of copyright reform that Congress would find difficult to accomplish. Some of this reform may be in the public interest. It also considers whether the quasi-legislative nature of the GBS settlement is merely an interesting side effect of the agreement or an additional reason in favor or against approval of this settlement.

"The Divine Sister" is the toast of "The Town" -- a mashup poster

The Divine Sister, Charles Busch's comic celebration of every nun movie ever made (as far as I can tell) has received rave reviews from, among others, The New York Times.  I guess it was inevitable that somebody would produce this mashup poster:


Remix culture:  gotta love it!

Google offers Open Source JPEG alternative for faster Web

It turns out there was more to Google's WebM technology than just a plan to revolutionize Web-based video. The company also wants to revolutionize still images on the Web with a new format called WebP.

Google plans to announce the new WebP graphics format today along with its research that indicates its use could cut image file sizes by 40 percent compared to today's dominant JPEG file format. That translates to faster file transfers and lower network burden if Google can convince people to adopt WebP.

An image encoded with WebP.

This image has been encoded with WebP. Because browsers can't show WebP natively today, this WebP image actually is displayed here as a PNG graphic that captures the WebP version without changes. In its WebP incarnation, the image is 36,154 bytes.

(Credit: Google)
An image encoded with JPEG. Its file size is 46768 bytes.

The same image encoded with JPEG. Its file size is 46,768 bytes.

(Credit: Google)

WebP, like JPEG, lets its users trade off image quality for file size. And like JPEG, it's a "lossy" format, meaning it doesn't perfectly reproduce an original image but tries to keep as true to the original as possible when viewed by the human eye.

Unlike JPEG, though, it's not built into every camera, Web browser, image-editing program, pharmacy photo-printing kiosk, and mainstream operating system in existence. That's not stopping Google, though, whose goals with WebP are ambitious even if not as ambitious as replacing JPEG.

"When we took a bunch of images, recompressed them from their current lossy formats into WebP, we saw on average about 40 percent decrease in size, which is staggering," said Richard Rabbat, lead product manager on Google's "make the Web faster" effort. Shrinking images by that much is particularly important considering that, by Google's estimate, "65 percent of bytes on the Web are from images," he said.

JPEG is a powerful incumbent. Microsoft has been trying for years to promote an alternative, now standardized as the royalty-free JPEG XR format, which offers greater dynamic range, a wider range of colors, and more efficient compression. But JPEG XR so far hasn't made much progress beyond standardization and native support in Internet Explorer and Windows.

Google, like Microsoft, knows it's in for a long effort to promote its graphics format.

"The challenges are tremendous," Rabbat said. "We foresee it's going to be a very long conversation."

It's begun that conversation with some that share Google's faster-Web motivations: browser makers. "We're talking to other browser vendors about supporting WebP," he said. "Initially, we want to spread this widely on the Web."

WebP is derived from WebM, Google's open-source, royalty-free technology for encoding and decoding video. The higher compression efficiency measurement came from a sample of 1 million images that Google plucked from the Web. Of them, about 90 percent were JPEG, and Google's tests showed WebP offering the same quality with 40 percent smaller file sizes. The remaining 10 percent were formats such as PNG and GIF, which are used more for illustration images such as logos rather than the photo-oriented JPEG.

Google plans to release WebP software to let people judge image quality for themselves. At first that will include a utility to convert graphics into WebP images, but more important perhaps in the long run is support built into Google's Chrome browser.

"We expect in a few weeks we will have native support for WebP in Chrome," Rabbat said.

That browser move is where Google's efforts to speed up the Web are interesting. Because Google has some very popular Web pages along with a widely used if not dominant browser, the company can make something practical and real out of technology that in another company's hands would be merely academic unless it signed up partners.

Google's doing the same thing with other Web technologies, for example by building into Chrome the SPDY protocol to speed interactions with Web servers, and the Native Client software to run downloadable software at native rather than JavaScript speeds. With Chrome as a vehicle and Google's Web properties as a destination, neither of those need be universally adopted for Google to benefit.

The company wants WebP to be used beyond just its own servers. However, it will be tough to persuade Web developers to create variations on their current Web pages that use WebP rather than JPEG images, especially with no browsers supporting it today.

But Google has an answer: check to see if the browser supports WebP, and if it does, generate the necessary WebP images on the fly for delivery to the browser, Rabbat said.

"You don't have to make a decision--do I need to rebuild my corpus [of graphics] into WebP?" he said. "The conversion happens pretty fast. It's just a bit of CPU [processor power] you have to throw at the problem. When you've done the conversion once, you can cache the image so you don't have to do it again."

There is a penalty for the quality. Encoding WebP images takes about eight times longer than JPEG, Rabbat said. He also observed, though, that "a lot of technologies for lossy compression were invented in the 1970s when processors were slow and memory was expensive."

And hardware eventually could work in WebP's favor.

One convenient feature of WebP is that any hardware that supports WebM video encoding or decoding also supports WebP. That means a mobile phone with hardware support, for example, could take WebP photos.

Library of Congress Report: The State of Recorded Sound Preservation In the United States

Check out, especially, Chapter 4, p. 108, "Preservation, Access, and Copyright: A Tangled Web"


#copyright is all about balance.

Wednesday, September 29, 2010

R.I.P.: Arthur Penn, Director of ‘Bonnie and Clyde,’ Dies

The cause was congestive heart failure, his son, Matthew, said.

A pioneering director of live television drama in the 1950s and a Broadway powerhouse in the 1960s, Mr. Penn developed an intimate, spontaneous and physically oriented method of directing actors that allowed their work to register across a range of mediums.

In 1957, he directed William Gibson’s television play “The Miracle Worker” for the CBS series “Playhouse 90” and earned Emmy nominations for himself, his writer and his star, Teresa Wright. In 1959, he restaged “The Miracle Worker” for Broadway and won Tony Awards for himself, his writer and his star, Anne Bancroft. And in 1962, he directed the film version of Mr. Gibson’s text, which won the best actress Oscar for Bancroft and the best supporting actress Oscar for her co-star, Patty Duke, as well as earning nominations for writing and directing.

Mr. Penn’s direction may also have changed the course of American history. He advised Senator John F. Kennedy during his watershed television debates with Richard M. Nixon in 1960 (and directed the broadcast of the third debate). Mr. Penn’s instructions to Kennedy — to look directly into the lens of the camera and keep his responses brief and pithy — helped give the candidate an aura of confidence and calm that created a vivid contrast to his more experienced but less telegenic Republican rival.

But it was as a film director that Mr. Penn left his mark on American culture, most indelibly with “Bonnie and Clyde.”

“Arthur Penn brought the sensibility of ’60s European art films to American movies,” the writer-director Paul Schrader said. “He paved the way for the new generation of American directors who came out of film schools.”

Many of the now-classic films of what was branded the “New American Cinema” of the 1970s — including “Taxi Driver,” directed by Martin Scorsese and written by Mr. Schrader, and “The Godfather,” directed by Francis Ford Coppola — would have been unthinkable without “Bonnie and Clyde” to point the way.

Loosely based on the story of two minor gangsters of the 1930s, Bonnie Parker and Clyde Barrow, “Bonnie and Clyde” had been conceived by its two novice screenwriters, Robert Benton and David Newman, as an homage to the rebellious sensibility and disruptive style of French New Wave films like François Truffaut’s “Shoot the Piano Player” and Jean-Luc Godard’s “Breathless.”

In Mr. Penn’s hands, it became something even more dangerous and innovative — a sympathetic portrait of two barely articulate criminals, played by Mr. Beatty and a newcomer, Faye Dunaway, that disconcertingly mixed sex, violence and hayseed comedy, set to a bouncy bluegrass score by Lester Flatt and Earl Scruggs. Not only was the film sexually explicit in ways unseen in Hollywood since the imposition of the Production Code in 1934 — when Bonnie stroked Clyde’s gun, the symbolism was unmistakable — it was violent in ways that had never been seen before. Audiences gasped when a comic bank robbery climaxed with Clyde’s shooting a bank teller in the face, and were stunned when this attractive outlaw couple died in a torrent of bullets, their bodies twitching in slow motion as their clothes turned red with blood.

Reporting on the film’s premiere on the opening night of the Montreal Film Festival in 1967, Bosley Crowther, the chief film critic for The New York Times, was appalled, describing “Bonnie and Clyde” as “callous and callow” and “slap-happy color film charade.” Worse, the public seemed to love it. “Just to show how delirious these festival audiences can be,” Mr. Crowther wrote, “it was wildly received with gales of laughter and given a terminal burst of applause.”

Similar reactions by other major critics followed when the film opened in the United States a few weeks later. The film, promoted by Warner Brothers with the memorable tag line, “They’re young. They’re in love. They kill people,” floundered at first but soon found an enthusiastic audience among younger filmgoers and won the support of a new generation of critics. “A milestone in the history of American movies,” wrote Roger Ebert in The Chicago Sun Times. Pauline Kael, writing her first review for The New Yorker, described it as an “excitingly American movie,” although she disliked Ms. Dunaway’s performance.

“Bonnie and Clyde” was nominated for 10 Oscars but won only two (for Burnett Guffey’s cinematography and Estelle Parson’s supporting performance), reflecting the Hollywood establishment’s ambivalence over a film that seemed to point the way out of the creative paralysis that had set in after the end of the studio system while betraying all the values — good taste and moral clarity — the studios held most dear.

But the breach had been opened: “Bonnie and Clyde” was followed by “Easy Rider,” “The Wild Bunch,” “The Graduate” and a host of other youth-oriented, taboo-breaking films that made mountains of money for Hollywood. Mr. Penn was perceived as a major film artist on the European model, opening the way for a group of star directors — including Robert Altman, Terrence Malick, Bob Rafelson and Hal Ashby — who were able to work with comparative artistic freedom through the next decade. The “film generation” had arrived.

Arthur Penn was born on Sept. 27, 1922 in Philadelphia to parents of Russian-Jewish heritage. His father, a watchmaker, and his mother, a nurse, divorced when he was three, and Arthur and his brother Irving (who would achieve fame as a photographer) went to live with their mother in New York and New Jersey, changing homes and schools frequently as she struggled to make a living.

Arthur returned to Philadelphia to live with his father when he was 14 and became interested in theater while attending high school. He joined the Army in 1943 and, while stationed at Fort Jackson in South Carolina, organized a theater troupe with his fellow soldiers; later, while stationed in Paris, he performed with the Soldiers Show Company.

After the war he took advantage of the G.I. Bill to attend the famously unconventional Black Mountain College in North Carolina, where his classmates included John Cage, Merce Cunningham and Buckminster Fuller. He went on to study at the Universities of Perugia and Florence in Italy, and returned to the states in 1948. Intrigued by the new, psychologically realistic school of acting that had grown out of the teachings of Konstantin Stanislavski — broadly known as “The Method” — he studied with the Actors Studio in New York and with Stanislavski’s rebellious disciple, Michael Chekhov, in Los Angeles.

Back in New York, Mr. Penn landed a job as a floor manager at NBC’s newly opened television studios. In 1953, an old Army buddy, Fred Coe, gave him a job as a director on “The Gulf Playhouse,” also known as “First Person,” an experimental dramatic series in which the actors directly addressed the camera. The series, broadcast live, introduced him to many of the writers who would go on to make their names in the television drama of the 1950s, including Robert Alan Aurthur, Paddy Chayefsky and Horton Foote. Of Mr. Penn’s first effort, “One Night Stand,” broadcast on July 31, 1953, Val Adams wrote in The New York Times, “Robert Alan Aurthur did the script and Arthur Penn directed. If these and others continue their good work, there is still a great deal of promise in the half-hour TV drama.”

As Mr. Coe moved on to the expanded formats of “The Philco-Goodyear Television Playhouse” and “Playhouse 90,” he took Mr. Penn with him. His “Playhouse 90” production of William Gibson’s “The Miracle Worker,” starring Patricia McCormack as Helen Keller and Teresa Wright as the blind girl’s determined teacher, Annie Sullivan, was shown on Feb. 7, 1957, and earned glowing reviews for both Mr. Gibson and Mr. Penn. Their television success allowed Mr. Penn and Mr. Gibson to return to the original arena of their ambitions, Broadway. With Fred Coe producing, they mounted Mr. Gibson’s play “Two for the Seesaw,” a two-hander about a Midwestern businessman (Henry Fonda) contemplating an adventure with a New York bohemian (Anne Bancroft). It was an immediate success upon its opening in January 1958.

Sensing themselves on a roll, Mr. Penn and Mr. Coe decided to tackle Hollywood. With Mr. Coe producing, Mr. Penn directed his first film, “The Left-Handed Gun,” for Warner Brothers. Based on a Gore Vidal television play adapted by Leslie Stevens, the project was an extension of the “Playhouse 90” aesthetic: a low-budget, black-and-white western about a troubled, inarticulate young man (Paul Newman, in a performance stamped with Actors Studio technique) who happened to be Billy the Kid.

As the critic Robin Wood wrote in his 1969 book on Mr. Penn, “The Left-Handed Gun” provides “a remarkably complete thematic exposition of Penn’s work.” Here already is the theme of the immature, unstable outsider who resorts to violence when he is rejected by an uncaring establishment — a configuration that Mr. Penn would return to again and again in his mature work.

This time, however, fortune did not smile on Mr. Penn. Warner Brothers released “The Left-Handed Gun” directly to neighborhood theaters, where it earned mediocre reviews (“Poor Mr. Newman seems to be auditioning alternately for the Moscow Art Players and the Grand Ole Opry,” Howard Thompson wrote in The Times) and quickly sank from view.

Luckily, Mr. Penn had a back-up plan. Returning to New York, he mounted “The Miracle Worker” for Broadway with Anne Bancroft as Annie Sullivan and the 13-year-old Patty Duke as Helen Keller. Mr. Penn’s highly physical approach made the show a sensation — “One of the most ferocious slugging matches in town has been waged nightly for the past eight weeks between an amateur fighter from the Bronx, standing 5 feet 6 inches tall and weighing 122 pounds, and a novice from Manhattan, standing 4 feet 4 3/4 inches tall and weighing 60 pounds,” wrote Nan Robertson in a Times story about the play — and the production went on to run for 719 performances.

During the run of “The Miracle Worker,” Mr. Penn found time to stage three more hits: Lillian Hellman’s “Toys in the Attic,” with Jason Robards, Jr. and Maureen Stapleton; “An Evening with Mike Nichols and Elaine May,” in which the popular comedy team made their Broadway debut, and “All the Way Home,” an adaptation of James Agee’s novel “A Death in the Family,” with Arthur Hill and Colleen Dewhurst.

When Hollywood beckoned again, Mr. Penn returned in strength in 1962 to direct the film version of “The Miracle Worker.” This time the film was a popular and critical success, earning Oscars for Ms. Bancroft and Ms. Duke and nominations for Mr. Penn, Mr. Gibson and the costume designer Ruth Morley.

But Mr. Penn was dismissed from his next project, “The Train,” after a few days of filming by its temperamental star, Burt Lancaster. His subsequent film, “Mickey One,” an absurdist drama about a nightclub comedian (Warren Beatty) on the run from the Mafia, wore its European art film ambitions on its sleeve and baffled most American critics, though it earned the admiration of the iconoclastic young critics of Cahiers du cinema, the influential French film magazine that championed the New Wave.

Mr. Penn had another frustrating experience with “The Chase” (1966), a multi-character drama set in a small Texas town where the local sheriff (Marlon Brando) is on the lookout for a local boy (Robert Redford) who has escaped from a state prison. Adapted by Lillian Hellman from a Horton Foote play, the morally complex drama was taken away from Mr. Penn and extensively re-edited by its producer, Sam Spiegel. But “The Chase,” even in its mutilated form, remains one of Mr. Penn’s most personal and feverishly creative works.

An embittered Mr. Penn returned to Broadway, where he staged the thriller “Wait Until Dark” with Lee Remick and Robert Duvall. But he was eventually induced to return to Hollywood, summoned by his “Mickey One” collaborator, Warren Beatty, to take over the direction of a project originally offered to François Truffaut.

“Frankly, I wasn’t all that certain I wanted to make another film,” Mr. Penn wrote in an essay for Lester D. Friedman’s 2000 Cambridge University Press anthology, “Arthur Penn’s ‘Bonnie and Clyde.” “And if I were to do another film, I felt it should be a story with a broader social theme than a flick about two thirties bank robbers whose pictures I remembered as a couple of self-publicizing hoods holding guns, plastered across the front page of The Daily News.”

But Mr. Beatty, who had acquired an option on the property, persuaded Mr. Penn to join the project with promises of autonomy and the rare privilege of having the final cut.

Working with the screenwriters, Robert Benton and David Newman, Mr. Penn eliminated a sexual triangle among Bonnie, Clyde and their disciple C. W. Moss — a composite character eventually played by Michael J. Pollard — that he felt was too sophisticated for the characters. “They were farmers or children or farmers, bumpkins most of them,” Mr. Penn wrote of the 1930s gangsters who inspired the story. “They certainly did not seem to be figures that belonged in complicated sexual arrangements.” He added, “ We talked and moved in the direction of a simpler tale, one of narcissism, of bravura, and, at least from Clyde’s point of view, of sexual timidity.”

“We had the tone of the film,” Mr. Penn wrote. “It was to start as a jaunty little spree in crime, then suddenly turn serious, and finally arrive at a point that was irreversible.”

After the astonishing success of “Bonnie and Clyde,” Mr. Penn had his choice of projects. But rather than move on to big-budget Hollywood prestige productions, Mr. Penn decided to make a small, personal film, very much in the spirit of the American Independent Cinema that would emerge in the 1980s.

“Alice’s Restaurant,” released in 1969, revisited many of the social outsider themes of “Bonnie and Clyde,” but in a low key, gently skeptical, non-violent manner. Starring Arlo Guthrie and based on his best-selling narrative album about a hippie commune’s brush with the law, the film did not approximate the impact of “Bonnie and Clyde” but stands as one of Mr. Penn’s most engaging works, a warm and deeply felt miniature.

By contrast, Mr. Penn seemed to lose his way among the epic ambitions of 1970’s “Little Big Man,” a sprawling, ironic, anti-western that tried to explain American imperialism through the excessively abstract figure of Jack Crabb (Dustin Hoffman), the sole (though fictional) non-Indian survivor of the Battle of the Little Bighorn, as he bumbled through a glumly revisionist version of the Old West.

After that film’s disappointing reception, Mr. Penn laid low for a while, contributing only a segment to the 1973 documentary on the Munich Olympics, “Visions of Eight,” before returning to feature filmmaking in 1975 with the modest thriller “Night Moves.” Starring Gene Hackman as a Hollywood private detective who loses himself on a case in the Florida Keys, the film made explicit the existential despair long contained in the American film noir, ending on a daring note of irresolution.

But the audiences of 1975 were losing patience with daring notes, flocking instead to the popcorn pleasures of Steven Spielberg’s “Jaws,” that summer’s runaway hit. Suddenly, Mr. Penn’s kind of artistically ambitious, personal filmmaking was out of style. The director returned to Broadway, where he staged a pair of successes, Larry Gelbart’s “Sly Fox” with George C. Scott and William Gibson’s “Golda” with Anne Bancroft.

Mr. Penn’s subsequent film career witnessed violent ups and downs. A reunion with Marlon Brando for “The Missouri Breaks” (1976) yielded a surreal western with moments of brilliance but a meandering tone. With “Four Friends” (1981), Mr. Penn returned to the subjects of youthful uncertainty and social upheaval, working from a semi-autobiographical script by Steve Tesich. “It’s a film for which I had a lot of sympathy,” Mr. Penn told Richard Schickel in 1990, “about adolescence and a kid who was an immigrant to the United States and his inability to function with his father. In that sense there are lots of personal details that correlate with my own life.”

Less committed were “Target” (1985), a paranoid political thriller with Gene Hackman and Matt Dillon that uneasily matched a father-son conflict with conventional suspense, and “Dead of Winter” (1987), a partial remake of Joseph H. Lewis’s 1945 gothic thriller “My Name Is Julia Ross.” They seemed barely to engage its director. “I just like to flex my muscles every once in a while and do something relatively mindless,” Mr. Penn explained to Mr. Schickel.

It came as a pleasant surprise, then, when Mr. Penn uncorked the 1989 independent production “Penn and Teller Get Killed,” a black comedy in which the stage magicians Penn and Teller are pursued by a serial killer (David Patrick Kelly). Full of wild jokes, bizarre reversals and extravagant gore, this tiny film bristles with a youthful spirit of experimentation.

A dutiful drama of South African apartheid produced by Showtime, “Inside” (1996) would prove to be Mr. Penn’s last theatrically released film. He also contributed a brief segment to the 1995 anthology “Lumière and Company.”

In his last years, Mr. Penn returned to the medium that had given him his start, television. He served as an executive producer on several episodes of “Law and Order,” a series on which his son, Matthew Penn, worked as a director, and directed a 2001 episode of “100 Centre Street,” a program executive produced by Mr. Penn’s old television colleague, the director Sidney Lumet. One of his final works for the theater was the 2002 Broadway production “Fortune’s Fool,” an adaptation of Ivan Turgenev’s 1848 play that, true to Mr. Penn’s form, duly won Tony Awards for its two stars, Alan Bates and Frank Langella.

Mr. Penn met his wife of 54 years, the actress Peggy Mauer, when he auditioned her for a television drama in the 1950s. She survives him. Besides his son, Matthew, Mr. Penn is also survived by a daughter, Molly Penn, and four grandsons. Mr. Penn’s older brother, the photographer Irving Penn, died in 2009. Throughout his long career, Mr. Penn never lost his flair for the spontaneous, his remarkable ability to capture an emotional moment in all of its pulsing ambiguity and messy vitality.

“I don’t storyboard,” Mr. Penn explained to an audience at the American Film Institute in 1970s, referring to the practice of sketching out every shot in a film before production begins. “I guess it dates back to my days in live television, where there was no possibility of storyboarding and everything was shot right on the spot — on the air, as we say — at the moment we were transmitting. I prefer to be open to what the actors do, how they interact to the given situation. So many surprising things happen on the set, and I have the feeling that storyboarding might tend to close your mind to the accidental.”

Liz Robbins contributed reporting.

This article has been revised to reflect the following correction:

Correction: September 29, 2010

An earlier version misstated one of the stars of the film "Target." It was Matt Dillon, not Matt Damon. That version also had the wrong given name for the writer of "The Miracle Worker."  He is William, not Walter, Gibson.

Marketing Lessons from the Grateful Dead: What Every Business Can Learn from the Most Iconic Band in History (9780470900529): David Meerman Scott, Brian Halligan, Bill Walton: Gateway

I have not read it yet but this looks like it might be an interesting much for what it doesn't say as for what it does. Judging by the title and by the promotional material the book concerns itself with marketing but does not address the possibility that the Grateful Dead point the way to a new business model (which is, in fact, very old). Encouraging a more direct relation between artists and fans -- cultivating a community -- goes beyond marketing.

Tuesday, September 28, 2010

Top Legal Experts Explore Reforms to Copyright Law

Top Legal Experts Explore Reforms to Copyright Law

Contact: Susan Gluss, 510.642.6936,

Berkeley, CA-September 28, 2010...A group of leading experts on copyright law and policy released a report today that explores ideas for meaningful reforms to the U.S. copyright system. Crafted over three years by a group of legal academics, private practitioners, and corporate attorneys, the report examines several ways to improve and update the law in an era of rapid technological change.

The Copyright Principles Project: Directions for Reform (CPP) report attempts to ignite an informed debate about how to best balance the interests of copyright owners and users. The group reached consensus on a number of significant ideas, as well as guiding principles for copyright reform. The project was led by Berkeley Law distinguished professor Pamela Samuelson.

“The report intelligently informs the copyright debate, and the identification and discussion of issues is well done and important,” said Marybeth Peters, the head of the U.S. Copyright Office. “The recommendations are thoughtful, and in many cases, I support them. This entire project significantly reinvigorates efforts to bring the copyright law up-to-date, either incrementally or as a major revision.”

U.S. Copyright law, originally drafted in the 1960s, was conceived decades before widespread use of the Internet, Web, and global digital networks. At that time, there was no reason for ordinary people to care much about copyright law. However, today, virtually everyone online interacts with copyrighted works, whether downloading photos or songs from the Web, forwarding news articles to friends, place-shifting music collections, or linking to favorite websites.

Advances in technology have not only vastly expanded access to authors’ works, but it has also brought new stakeholders into the copyright arena. Millions of ordinary citizens now publish and distribute material with the click of a mouse, making it easier to become copyright creators and publishers.

Professor Samuelson says such user-generated content challenges copyright law because it’s typically created by non-professionals—amateurs with different needs than, say, Hollywood studios.

"Copyright law touches us all on a daily basis and now millions of people who create user-generated works have become copyright stakeholders," said professor Samuelson. “Copyright law needs to be simpler, understandable, and more flexible to change with the times.”

Terry Ilardi, a project participant and IBM copyright counsel, said, "While the Copyright Act has grown enormously in the last three decades, it has not done so coherently, or in a way that has been sensitive to the changes demanded by the newest technologies.”

One of the project’s ideas would provide non-commercial uses of copyrighted works better shelter from liability, particularly as users lift parts of existing works to create new ones. The report also suggests a more efficient and technologically-driven approach to copyright registration, so that works can be freely reused if their authors agree.

Copyright law reform has been a challenging issue for stakeholders, many of whom have starkly different ideas about how to balance public and private interests. To its credit, the project team explored controversial subjects openly and with vigorous debate. In cases where the participants could not settle on a specific reform proposal, they were able to draft guiding principles for future reform efforts.

“The report will be a major spur to copyright reform with its ideas and practical recommendations,” said Michael Traynor, of the American Law Institute. “It helps copyright owners and users, Congress, and the courts cope intelligently with rapidly advancing technology."

One common problem the report addresses is peer-to-peer file-sharing of commercial movies and music. Although some file-sharing services have been shut down, the illegal practice has not abated. The report suggests the creation of a “safe harbor” to protect online service providers from excessive damage claims if they take reasonable, voluntary, measures to limit file-sharing—or other unlawful distributions of commercial works. Companies that comply would be shielded from liability for user infringements.

The report also suggests development of reasonable and consistent statutory guidelines for damage awards. Current law allows courts to award between $750 and $30,000 in damages per infringed work—and up to $150,000 per work if the infringement is willful. This has led to awards that seem arbitrary and capricious, inconsistent with awards in similar cases, and grossly excessive or disproportionate.

Other ideas include:

Modernize the Copyright Office: Instead of one registry for all copyrighted works, the office could certify third-party registries for different types of works, such as photos, films, and computer programs. The model is akin to the domain name registration system. Other suggestions include adopting a small claims procedure for small-scale disputes.

Reinvigorate copyright registration: Encourage copyright owners to register so that it's simple to find out who owns what. The idea is to make registration easy and worthwhile for copyright owners so that the public can have better information about protected works and their owners.

Refine exclusive rights for authors: Weigh commercial value and risk of harm to copyright markets when determining whether someone's exclusive right has been infringed; this shields non-harmful activity from the threat of highly punitive copyright claims.

Revise the common practice of automatic injunctions: Courts could consider whether a preliminary or permanent injunction is needed to prevent irreparable harm, as well as whether having access to the work is in the public’s best interest.

Limit Orphan Works liability: Enable libraries and others to preserve a part of our cultural heritage by using copyrighted materials whose owners cannot readily be found.

Register of Copyrights, Marybeth Peters, agrees that “there’s a real need for orphan works legislation,” and “commends the copyright project participants for making this a priority.” Overall, Peters said, the report “will command attention and much respect.”

The Copyright Principles Project: Directions for Reform will be published this fall in the Berkeley Technology Law Journal.

Follow University of California, Berkeley, School of Law on Twitter.


I have not yet read the report which this press release announces. The fact that it does not mention shortening the current term of copyright protection -- which can keep a cultural work locked up for a century -- is discouraging. If the press release fairly reflects the report then insufficient weight was given to the interests of common culture.

Cramping our style: Why copyright protection will hurt fashion

Why copyright protection will hurt the fashion industry

You may have heard the recent piece on NPR about new legislation that would finally give fashion designers ownership of their own designs. Many of you were probably thinking: geez, how unfair! Fashion apparel is at least as artistic and deserving of protection as a painting or a film or a sculpture or a short story. At long last, you thought, recognition and justice for these artists as well.

But there are good reasons why fashion designs have never received copyright protection in this country. And the fact that the Council of Fashion Designers of America has finally pulled together a politically viable bill is rather depressing news.

Although this version of the bill is far less ridiculous than the three earlier versions that were shot down in the last few years, I still think it’s a terrible mistake.

I would be the last to claim that fashion designs aren’t artful enough to deserve copyright protection, but that’s not the issue. Copyright protection is a means to an end, and that end is promoting innovation. Oddly enough, in the fashion industry, the lack of copyright protection has actually increased innovation. Any effort to curb a designer’s ability to freely sample from the history of fashion is only going to hurt the industry – artistically and economically.

Historically, fashion designers have been denied copyright protection because the courts decided long ago that utilitarian articles should not be protected by copyright. Otherwise, a handful of designers would own the seminal building blocks of our clothing. Every time a new blouse would be made, licensing fees would need to be paid to the supposed originator of that particular sleeve or collar.

Although the new bill tries to get around that problem by making the overall design, not elements of the design, protectable, once any design is owned by someone, it has a chilling effect on other designers who intend to tap into the same trend. Supporters of the bill say the copyright period for fashion designs would only be three years, but three years is an eternity in the fast-changing world of global fashion, and now that the final version of the bill has eliminated a searchable registry for these protected designs, I’m not sure how designers will be able to figure out what they are not allowed to make.

The Innovative Design Protection and Piracy Prevention Act as it stands now would leave all previous fashion designs in the public domain, but new designs would be eligible to receive protection (with no registration necessary) as long as they “provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.” Companies with enough money to do so can hire lawyers to convince judges (who better start honing their fashion skills) that their client’s design is uniquely different from anything else ever made in the history of fashion AND that some other designer’s work is “substantially identical.”

It’s worrisome to think about the frivolous litigation that such legislation could introduce (that’s not exactly what our overtaxed court system needs right now) as well as the ethical problems associated with conferring an arbitrary right of ownership to any Joe Blow who decides to lay claim to a certain combination of design features that used to be in the public domain.

One deeply ironic example that I could dredge up (and I will) is from Diane von Furstenberg. In addition to being a successful American fashion designer, she is the president of the Council of Fashion Designers of America, the main organization sponsoring this legislation. She allowed NPR to feature a photo of one of her gowns in their coverage of the bill. Here’s a quote from the report:

The Diane von Furstenberg wrap dress from 1975-76 in the collection of the Metropolitan Museum of Art. Photo courtesy

Take, for example, Diane von Furstenberg’s wrap dress, which became so iconic after she introduced it in 1973 that it is now a part of the Metropolitan Museum of Art’s collection. As a fashion staple, the dress has been reproduced over and over again with little credit given to its creator. Today, von Furstenberg is one of the most vocal fashion figures when it comes to copyright protection.

If credit were to be given to the “creator,” many students of fashion would probably think you meant Claire McCardell, a successful American designer who introduced a wrap-around dress to the American market in 1942. It was called the “popover” and it was originally made of denim, but she eventually transformed the design for dresses, coats and beach wraps.

There’s no doubt that von Furstenberg is familiar with McCardell, but that has not stopped her from laying claim to a design that was not only popular in the 1940s, but was trendy in ancient Greece. Nor has it stopped her from championing legislation that she could never use to claim ownership of the design that has defined her career.

Oh, and there’s more. Von Furstenberg’s temptation to copy other designers without credit was evident again in a juicy case last year, when she got caught ripping off a design by a much smaller, but well-respected, Canadian label called Mercy. I’m not saying fashion designers shouldn’t copy one another; I’m saying that all of them, regardless of who they are, already do. How honest they are about it is another matter.

Designers routinely pore over vintage magazines and patterns and visit museum archives to find inspiration for the next season’s look, cherry-picking design elements that feel fresh and in line with the current zeitgeist. It’s a refreshingly open process unhindered by legal consultations. If this new legislation passes, those archives could become battlefields where litigants seek evidence that a design is or is not unique. The geeky librarian in me is worried that powerful people will attempt to limit access to particularly rich collections of design history and some unscrupulous types might destroy or hide rare materials that prove their new design isn’t as unique as they claim.

The scope of items the bill intends to protect is larger than you probably think. It’s not just for red carpet gowns: it also covers coats, gloves, shoes, hats, purses, wallets, duffel bags, suitcases, tote bags, belts, eyeglass frames and underwear. I can only imagine the lengths to which some companies with deep pockets will go to claim exclusive rights to an iconic popular design.

The sad thing is that just about everyone will suffer (well, except for lawyers). Consumers will pay higher prices (someone has to pay those legal fees) and they won’t have the same access to the plethora of knock-offs that allow them to participate in global fashion trends without paying aristocratic prices. Designers who can’t afford legal counsel will worry about being accused of copying, and they won’t be able to sue if someone copies them because, well, litigation is expensive.

In a recent talk, I argued that one reason fashion design has been elevated to an art form is precisely because of the lack of copyright protection. So, while fashion design doesn’t qualify for the same legal protections that other artistic creations have, the creative possibilities for design and the rapid pace of innovation have increased exponentially. Unlike musicians, filmmakers, photographers, writers, sculptors and graphic designers, fashion designers may incorporate just about any element of their peers’ creative work into their own design.

Too bad that era of freedom and rapid innovation might be over.

Johanna Blakley is deputy director of the Norman Lear Center, a think tank that studies the convergence of entertainment, commerce and society at the University of Southern California. She also writes a blog on media, entertainment and fashion.

We do NOT increase the efficiency of economic systems by establishing monopolies where none existed before. Measures to apply copyright laws to the fashion industry, to privatize what ought to be common culture, will reduce creativity and fragment our society. We are dividing ourselves into culture owners and culture consumers and in the process we are slowly strangling our culture, removing filament by filament the strands that bind us.

Monday, September 27, 2010

Nina Paley Drew a Strip About Me


The Music Industry is Killing Music

with a tip of the hat to Nina Paley (on Facebook) for the link.

Pentagon destroys thousands of copies of Army officer's memoir -

Pentagon destroys thousands of copies of Army officer's memoir

By Chris Lawrence and Padma Rama, CNN
September 25, 2010 6:27 p.m. EDT
'Operation Dark Heart' describes Lt. Col Anthony Shaffer's time in Afghanistan leading a black-ops team.
'Operation Dark Heart' describes Lt. Col Anthony Shaffer's time in Afghanistan leading a black-ops team.

Washington (CNN) -- The Department of Defense recently purchased and destroyed thousands of copies of an Army Reserve officer's memoir in an effort to safeguard state secrets, a spokeswoman said Saturday.

"DoD decided to purchase copies of the first printing because they contained information which could cause damage to national security," Pentagon spokeswoman Lt. Col. April Cunningham said.

In a statement to CNN, Cunningham said defense officials observed the September 20 destruction of about 9,500 copies of Army Reserve Lt. Col. Anthony Shaffer's new memoir "Operation Dark Heart."

Shaffer says he was notified Friday about the Pentagon's purchase.

"The whole premise smacks of retaliation," Shaffer told CNN on Saturday. "Someone buying 10,000 books to suppress a story in this digital age is ludicrous."

As Shaffer says, this gesture is ludicrous, not to mention futile:

Google's Book Search: A Disaster for Scholars

By Geoffrey Nunberg

Whether the Google books settlement passes muster with the U.S. District Court and the Justice Department, Google's book search is clearly on track to becoming the world's largest digital library. No less important, it is also almost certain to be the last one. Google's five-year head start and its relationships with libraries and publishers give it an effective monopoly: No competitor will be able to come after it on the same scale. Nor is technology going to lower the cost of entry. Scanning will always be an expensive, labor-intensive project. Of course, 50 or 100 years from now control of the collection may pass from Google to somebody else—Elsevier, Unesco, Wal-Mart. But it's safe to assume that the digitized books that scholars will be working with then will be the very same ones that are sitting on Google's servers today, augmented by the millions of titles published in the interim.

That realization lends a particular urgency to the concerns that people have voiced about the settlement —about pricing, access, and privacy, among other things. But for scholars, it raises another, equally basic question: What assurances do we have that Google will do this right?

Doing it right depends on what exactly "it" is. Google has been something of a shape-shifter in describing the project. The company likes to refer to Google's book search as a "library," but it generally talks about books as just another kind of information resource to be incorporated into Greater Google. As Sergey Brin, co-founder of Google, puts it: "We just feel this is part of our core mission. There is fantastic information in books. Often when I do a search, what is in a book is miles ahead of what I find on a Web site."

Seen in that light, the quality of Google's book search will be measured by how well it supports the familiar activity that we have come to think of as "googling," in tribute to the company's specialty: entering in a string of keywords in an effort to locate specific information, like the dates of the Franco-Prussian War. For those purposes, we don't really care about metadata—the whos, whats, wheres, and whens provided by a library catalog. It's enough just to find a chunk of a book that answers our needs and barrel into it sideways.

But we're sometimes interested in finding a book for reasons that have nothing to do with the information it contains, and for those purposes googling is not a very efficient way to search. If you're looking for a particular edition of Leaves of Grass and simply punch in, "I contain multitudes," that's what you'll get. For those purposes, you want to be able to come in via the book's metadata, the same way you do if you're trying to assemble all the French editions of Rousseau's Social Contract published before 1800 or books of Victorian sermons that talk about profanity.

Or you may be interested in books simply as records of the language as it was used in various periods or genres. Not surprisingly, that's what gets linguists and assorted wordinistas adrenalized at the thought of all the big historical corpora that are coming online. But it also raises alluring possibilities for social, political, and intellectual historians and for all the strains of literary philology, old and new. With the vast collection of published books at hand, you can track the way happiness replaced felicity in the 17th century, quantify the rise and fall of propaganda or industrial democracy over the course of the 20th century, or pluck out all the Victorian novels that contain the phrase "gentle reader."

But to pose those questions, you need reliable metadata about dates and categories, which is why it's so disappointing that the book search's metadata are a train wreck: a mishmash wrapped in a muddle wrapped in a mess.

Start with publication dates. To take Google's word for it, 1899 was a literary annus mirabilis, which saw the publication of Raymond Chandler's Killer in the Rain, The Portable Dorothy Parker, André Malraux's La Condition Humaine, Stephen King's Christine, The Complete Shorter Fiction of Virginia Woolf, Raymond Williams's Culture and Society 1780-1950, and Robert Shelton's biography of Bob Dylan, to name just a few. And while there may be particular reasons why 1899 comes up so often, such misdatings are spread out across the centuries. A book on Peter F. Drucker is dated 1905, four years before the management consultant was even born; a book of Virginia Woolf's letters is dated 1900, when she would have been 8 years old. Tom Wolfe's Bonfire of the Vanities is dated 1888, and an edition of Henry James's What Maisie Knew is dated 1848.

Of course, there are bound to be occasional howlers in a corpus as extensive as Google's book search, but these errors are endemic. A search on "Internet" in books published before 1950 produces 527 results; "Medicare" for the same period gets almost 1,600. Or you can simply enter the names of famous writers or public figures and restrict your search to works published before the year of their birth. "Charles Dickens" turns up 182 results for publications before 1812, the vast majority of them referring to the writer. The same type of search turns up 81 hits for Rudyard Kipling, 115 for Greta Garbo, 325 for Woody Allen, and 29 for Barack Obama. (Or maybe that was another Barack Obama.)

How frequent are such errors? A search on books published before 1920 mentioning "candy bar" turns up 66 hits, of which 46—70 percent—are misdated. I don't think that's representative of the overall proportion of metadata errors, though they are much more common in older works than for the recent titles Google received directly from publishers. But even if the proportion of misdatings is only 5 percent, the corpus is riddled with hundreds of thousands of erroneous publication dates.

Google acknowledges the incorrect dates but says they came from the providers. It's true that Google has received some groups of books that are systematically misdated, like a collection of Portuguese-language works all dated 1899. But a very large proportion of the errors are clearly Google's own doing. A lot of them arise from uneven efforts to automatically extract a publication date from a scanned text. A 1901 history of bookplates from the Harvard University Library is correctly dated in the library's catalog. Google's incorrect date of 1574 for the volume is drawn from an Elizabethan armorial bookplate displayed on the frontispiece. An 1890 guidebook called London of To-Day is correctly dated in the Harvard catalog, but Google assigns it a date of 1774, which is taken from a front-matter advertisement for a shirt-and-hosiery manufacturer that boasts it was established in that year.

Then there are the classification errors, which taken together can make for a kind of absurdist poetry. H.L. Mencken's The American Language is classified as Family & Relationships. A French edition of Hamlet and a Japanese edition of Madame Bovary are both classified as Antiques and Collectibles (a 1930 English edition of Flaubert's novel is classified under Physicians, which I suppose makes a bit more sense.) An edition of Moby Dick is labeled Computers; The Cat Lover's Book of Fascinating Facts falls under Technology & Engineering. And a catalog of copyright entries from the Library of Congress is listed under Drama (for a moment I wondered if maybe that one was just Google's little joke).

You can see how pervasive those misclassifications are when you look at all the labels assigned to a single famous work. Of the first 10 results for Tristram Shandy, four are classified as Fiction, four as Family & Relationships, one as Biography & Autobiography, and one is not classified. Other editions of the novel are classified as 'Literary Collections, History, and Music. The first 10 hits for Leaves of Grass are variously classified as Poetry, 'Juvenile Nonfiction, Fiction, Literary Criticism, Biography & Autobiography, and, mystifyingly, Counterfeits and Counterfeiting. And various editions of Jane Eyre are classified as History, Governesses, Love Stories, Architecture, and Antiques & Collectibles (as in, "Reader, I marketed him.").

Here, too, Google has blamed the errors on the libraries and publishers who provided the books. But the libraries can't be responsible for books mislabeled as Health and Fitness and Antiques and Collectibles, for the simple reason that those categories are drawn from the Book Industry Standards and Communications codes, which are used by the publishers to tell booksellers where to put books on the shelves, not from any of the classification systems used by libraries. And BISAC classifications weren't in wide use before the last decade or two, so only Google can be responsible for their misapplications on numerous books published earlier than that: the 1919 edition of Robinson Crusoe assigned to Crafts & Hobbies or the 1907 edition of Sir Thomas Browne's Hydriotaphia: Urne-Buriall, which has been assigned to Gardening.

Google's fine algorithmic hand is also evident in a lot of classifications of recent works. The 2003 edition of Susan Bordo's Unbearable Weight: Feminism, Western Culture, and the Body (misdated 1899) is assigned to Health & Fitness—not a labeling you could imagine coming from its publisher, the University of California Press, but one a classifier might come up with on the basis of the title, like the Religion tag that Google assigns to a 2001 biography of Mae West that's subtitled An Icon in Black and White or the Health & Fitness label on a 1962 number of the medievalist journal Speculum.

But even when it gets the BISAC categories roughly right, the more important question is why Google would want to use those headings in the first place. People from Google have told me they weren't included at the publishers' request, and it may be that someone thought they'd be helpful for ad placement. (The ad placement on Google's book search right now is often comical, as when a search for Leaves of Grass brings up ads for plant and sod retailers—though that's strictly Google's problem, and one, you'd imagine, that they're already on top of.) But it's a disastrous choice for the book search. The BISAC scheme is well-suited for a chain bookstore or a small public library, where consumers or patrons browse for books on the shelves. But it's of little use when you're flying blind in a library with several million titles, including scholarly works, foreign works, and vast quantities of books from earlier periods. For example the BISAC Juvenile Nonfiction subject heading has almost 300 subheadings, like New Baby, Skateboarding, and Deer, Moose, and Caribou. By contrast the Poetry subject heading has just 20 subheadings. That means that Bambi and Bullwinkle get a full shelf to themselves, while Leopardi, Schiller, and Verlaine have to scrunch together in the single subheading reserved for Poetry/Continental European. In short, Google has taken a group of the world's great research collections and returned them in the form of a suburban-mall bookstore.

Such examples don't exhaust Google's metadata errors by any means. In addition to the occasionally quizzical renamings of works (Moby Dick: or the White Wall), there are a number of mismatches of titles and texts. Click on the link for the 1818 Théorie de l'Univers, a work on cosmology by the Napoleonic mathematician and general Jacques Alexander François Allix, and it takes you to Barbara Taylor Bradford's 1983 novel Voice of the Heart, while the link on a misdated number of Dickens's Household Words takes you to a 1742 Histoire de l'Académie Royale des Sciences. Numerous entries mix up the names of authors, editors, and writers of introductions, so that the "about this book" page for an edition of one French novel shows the striking attribution, "Madame Bovary By Henry James." More mysterious is the entry for a book called The Mosaic Navigator: The Essential Guide to the Internet Interface, which is dated 1939 and attributed to Sigmund Freud and Katherine Jones. The only connection I can come up with is that Jones was the translator of Freud's Moses and Monotheism, which must have somehow triggered the other sense of the word "mosaic," though the details of the process leave me baffled.

For the present, then, scholars will have to put on hold their visions of tracking the 19th-century fortunes of liberalism or quantifying the shift of "United States" from a plural to singular noun phrase over the first century of the republic: The metadata simply aren't up to it. It's true that Google is aware of a lot of these problems and they've pledged to fix them. (Indeed, since I presented some of these errors at a conference last week, Google has already rushed to correct many of them.) But it isn't clear whether they plan to go about this in the same way they're addressing the scanning errors that riddle the texts, correcting them as (and if) they're reported. That isn't adequate here: There are simply too many errors. And while Google's machine classification system will certainly improve, extracting metadata mechanically isn't sufficient for scholarly purposes. After first seeming indifferent, Google decided it did want to acquire the library records for scanned books along with the scans themselves, but as of now the company hasn't licensed them for display or use—hence, presumably, those stabs at automatically recovering publication dates from the scanned texts.

Some of the slack may be picked up by other organizations such as the Internet Archive or HathiTrust, a consortium of participating libraries that is planning to make available several million of the public-domain books from their collections that Google scanned, along with their bibliographic records. But for now those sources can only provide access to books in the public domain, about 15 percent of the scanned collections; only Google will have the right to display the orphan works published since 1923.

In any case, none of that should relieve Google of the responsibility of making its collections an adequate resource for scholarly research. That means, at a minimum, licensing the catalogs of the Library of Congress and OCLC Online Computer Library Center and incorporating them into the search engine so that users can get accurate results when they search on various combinations of dates, keywords, subject headings, and the like. ("Adequate" means a lot more than that, as well, from improving the quality of scanning to improving Google's very flaky hit-count algorithms and rationalizing the resulting rankings, which now make no sense at all and often lead with inferior or shoddy editions of classic works.) Whether or not a guarantee of quality is a contractual obligation, it's implicit in the project itself. Google has, justifiably, described its book-scanning program as a public good. But as Pamela Samuelson, a director of the Center for Law & Technology at the University of California at Berkeley, has said, every great public good implies a great public trust.

I'm actually more optimistic than some of my colleagues who have criticized the settlement. Not that I'm counting on selfless public-spiritedness to motivate Google to invest the time and resources in getting this right. But I have the sense that a lot of the initial problems are due to Google's slightly clueless fumbling as it tried master a domain that turned out to be a lot more complex than the company first realized. It's clear that Google designed the system without giving much thought to the need for reliable metadata. In fact, Google's great achievement as a Web search engine was to demonstrate how easy it could be to locate useful information without attending to metadata or resorting to Yahoo-like schemes of classification. But books aren't simply vehicles for communicating information, and managing a vast library collection requires different skills, approaches, and data than those that enabled Google to dominate Web searching.

That makes for a steep learning curve, all the more so because of Google's haste to complete the project so that potential competitors would be confronted with a fait accompli. But whether or not the needs of scholars are a priority, the company doesn't want Google's book search to become a running scholarly joke. And it may be responsive to pressure from its university library partners—who weren't particularly attentive to questions of quality when they signed on with Google—particularly if they are urged (or if necessary, prodded) to make noise about shoddy metadata by the scholars whose interests they represent. If recent history teaches us anything, it's that Google is a very quick study.

Geoffrey Nunberg, a linguist, is an adjunct full professor at the School of Information at the University of California at Berkeley. Images of some of the errors discussed in this article can be found here.

As someone who has (more than once) underestimated the amount of time a technological project would take I can understand how Google can have missed its informal launch date for Google Editions. The problem, however, seems to have been deeper than that. It just doesn't look like Google had a very clear idea of what it would take to provide and quality check metadata for the vast number of texts it proposes to offer.

Private industry is not more efficient than any other sector when there is no effective competition.

Meet the Defenders of Open-Source Software

ARMIJN HEMEL, 32, lives with his parents in Tiel, a town smack-dab in the middle of the Netherlands. He works as a technology consultant, but spends several hours a week on his avocation: pestering some of the world’s most powerful consumer electronics and technology companies.

Mr. Hemel serves as a volunteer watchman for free, open-source software like the Linux operating system, which competes with Microsoft’s Windows. The use of free software has exploded, particularly in gadgets as varied as exercise bikes, energy meters and smartphones. Companies like Google, TiVo and Sony often opt to piggyback on the work of others rather than going through the ordeal of building all of the software for their products from scratch.

The problem that Mr. Hemel and others have stumbled upon is that some companies, even some technology savvy ones, may be violating the rather easy-to-follow requirements associated with free software licenses. Typically, these include making tweaked versions of a free software product available to the public, or simply giving credit to the original developers.

Last month, for example, Dell received a public tongue-lashing from the geek kingdom and a cease-and-desist letter courtesy of Mr. Hemel for shipping its new Streak tablet without providing the underlying open-source software code. Dell representatives acknowledged the issue and later put the code on a Web site. “We are committed to fulfilling all of our obligations when using open-source code in our product,” said a Dell spokesman in a company blog.

Mr. Hemel says companies should make sure they know the ins and outs of everything they sell. “If we all play by the rules, we can make some really good stuff,” he says.

Quite often, companies that fail to live up to these requirements do so out of ignorance about the rules of engagement. Nonetheless, they become exposed to potentially expensive lawsuits.

For the moment, companies with open-source compliance issues are in luck. Most of the people, like Mr. Hemel, who prowl about for violations seek neither fortune nor painful retribution. The creators of open-source software tend to just want a modicum of recognition and for companies to do the right thing. “Going to court is not the nice thing to do,” Mr. Hemel says.

Typically, Mr. Hemel, who volunteers for, an organization named after a popular open-source license, receives an e-mail complaint from someone who suspects that a product may use open-source software without adhering to the rules. Mr. Hemel will sometimes then hop on his bike, ride to a local retailer, conduct a test purchase and then analyze the product to see whether it uses free software and whether the company selling the product has lived up to its end of the bargain.

“We’re amazed by what people send in,” Mr. Hemel says. “There are wireless routers, PC cameras, phones and even an exercise bike that had a small computer so people could race against it.”

The problem may become only worse as the use of open-source software spreads to industries far afield of the somewhat clued-in technology sector. Carmakers, for example, often use open-source software in their entertainment consoles, while energy companies have started to offer smart meters to their customers.

“We are being flooded with more reports than ever before,” Mr. Hemel says.

In the past, he called companies’ customer support lines to tell them about open-source compliance issues. But few call-center operators acted on his concerns, he says.

These days, Mr. Hemel tries to find a contact in the legal department at the companies to discuss the issues. If no response or action follows, a cease-and-desist letter arrives. When the problem lingers, a lawsuit follows. and similar organizations have pointed a finger at some high-profile companies. In recent years, Cisco Systems, Samsung, Best Buy, Verizon Communications, and many others have been sued by the Software Freedom Law Center.

Lawsuits are typically settled out of court. For example, after Cisco was sued over the software included in its home routers; it agreed to make the software code available, tapped a point person to be responsible for open-source issues and paid an undisclosed amount to settle the case.

Representatives of companies dealing with these complaints say it’s a far more amicable engagement than one would find in the proprietary software world, where hard-charging lawyers come seeking serious payback for what they view as violations of intellectual property rules.

The nonprofit Linux Foundation has started a program meant to teach companies how to comply with open-source licenses. Cisco, Google, Intel, I.B.M., Sony and a host of other companies have backed the effort.

“One of the things that makes this tough is that you have increasingly complicated supply chains,” says Jim Zemlin, the executive director of the Linux Foundation. “These devices are made up of different components made all over the place.”

Hewlett-Packard, in particular, has helped develop a standardized inventory list for software so that companies can keep track of their code and licenses. It has also built a tool that lets companies analyze their software.

“These days a developer will do a Google search, find five open-source products that fit his need and the next thing you know one of them is in a product,” says Phil Robb, director of H.P.’s open-source program office. “The same questions should be asked about open-source software that have been asked for commercial software.”

Many companies using free software fear that open-source supporters will become more aggressive and pursue large payments over possible violations. “The thing that terrifies companies is the thought of shipping millions of TVs or phones and then having someone figure out that you didn’t follow the licensing requirements,” says Mark F. Radcliffe, a lawyer at DLA Piper, who handles a variety of cases tied to open-source software. “It could be very costly.”

Mr. Hemel, for his part, says he thinks the situation will improve with these new programs in place.

“Over the last five years,” he says, “I have gone from rage and anger to understanding what the problem is and trying to fix it.”

"Representatives of companies dealing with these complaints say it’s a far more amicable engagement than one would find in the proprietary software world, where hard-charging lawyers come seeking serious payback for what they view as violations of intellectual property rules. "

Sunday, September 26, 2010

Advice From The Times to College Freshmen

College is your chance to see what you’ve been missing, both in the outside world and within yourself. Use this time to explore as much as you can.

Take classes in many different subjects before picking your major. Try lots of different clubs and activities. Make friends with people who grew up much poorer than you, and others much richer. Date someone of a different race or religion. (And no, hooking up at a party doesn’t count.) Spend a semester abroad or save up and go backpacking in Europe or Asia.

Somewhere in your childhood is a gaping hole. Fill this hole. Don’t know what classical music is all about? That’s bad. Don’t know who Lady Gaga is? That’s worse. If you were raised in a protected cocoon, this is the time to experience the world beyond.

College is also a chance to learn new things about yourself. Never been much of a leader? Try forming a club or a band.

The best things I did in college all involved explorations like this. I was originally a theater major but by branching out and taking a math class I discovered I actually liked math, and I enjoyed hanging out with technical people.

By dabbling in leadership — I ran the math club and directed a musical — I learned how to formulate a vision and persuade people to join me in bringing it to life. Now I’m planning to become an entrepreneur after graduate school. It may seem crazy, but it was running a dinky club that set me on the path to seeing myself as someone who could run a business.

Try lots of things in college. You never know what’s going to stick.

— TIM NOVIKOFF, Ph.D. student in applied mathematics at Cornell

Chances are, if you are taking the time to read this advice, you already have the quality necessary to undertake the intellectual challenges of a college education — a seriousness of purpose. What I want to speak to is much more mundane, but it will make your transition into college easier: amid the thrill and vertigo of change, be kind to and patient with yourself.

Remember to take some time away from campus — from the demands of schoolwork and the trappings of the college social life. Explore the town you’re living in. Meet people who are not professors or fellow students. If you spend all of your time on school grounds, then it becomes too easy for the criticism from an occasional unkind professor or the conflict with a roommate to take on a monstrous scale. And to let that happen is to suffer from a mistake of emphasis; college should be a part of, but not the entire scope of, your existence for the next few years.

In Virginia Woolf’s novel “Mrs. Dalloway,” characters are troubled and traumatized by their inability to maintain a proper “sense of proportion”; ordinary tasks — life itself, for one of the characters — become outsized and unmanageable.

I mention this not because I think your situation will be so dire if you don’t heed my advice, but mostly because “Mrs. Dalloway” is a great read, and I highly recommend it.

— WILLIE X. LIN, student in the M.F.A. program in creative writing at Washington University in St. Louis

Universities are places where facts are made. Research is a collaborative process, so scientists need lab assistants, humanities researchers need library aides and graduate students need all the help they can get. A curious, competent undergraduate can always find work assisting a researcher.

Regardless of the field and the specific project, helping them helps you. The obvious benefits are new skills and invaluable experience. But there is also something powerful in seeing how the right experimental or analytical approach can sort through a mess of observations and opinion to identify real associations between phenomena, like a gene variant and a disease, or a financial tool and the availability of credit. With a window into the world of research, you will find yourself thinking more critically, accepting fewer assertions at face value and perhaps developing an emboldened sense of what you can accomplish.

Most important: research experience shows you how knowledge is produced. There are worse ways to prepare for life in an information age.

— AMAN SINGH GILL, Ph.D. student in the ecology and evolution department at Stony Brook University

I asked my kids about the advice found in the article linked to above. My son, Joel, had this response:

The first entry could just as easily have read "try new things". Also, I find the call to date someone of a different race and religion to be, well, stupid. Going out of your way to date someone because their identity is new and exotic is offensive and insensitive. If you want to date someone, date them because you jive and feel something, or even because you're inexplicably attracted to them, not because they add to your portfolio of friends, acquaintances and experiences. That's just plain creepy. I'd even be okay with 'don't be afraid to date someone from a different background', but the call to actively seek out someone because of it is weird. And I say this as someone who lived in a new and diverse community intentionally.

For the most part, these are things that I think are relatively true to a point, but are difficult to convey to a first-year. Generally I find that such advice offers little, because frankly you have to experience all that stuff yourself. I live with two people in their first year out of school, and I'm hearing back everything I experienced over the last year. But, while I think my advice is relatively useful, there's a point at which I can't tell them anything other than 'what you're going through makes sense, it's legit, don't worry, you'll come out okay', because they just need to go through it. You know why nobody writes these articles and books about the first year out of college? Because we don't have any money as a demographic and because it's depressing and just difficult. And that's if you're lucky enough to have a fulfilling job! "This stuff is going to be hard, but good for you" doesn't convince anybody (these days), they just have to live it.

I've Got A Feeling I'm Falling...

WNYC's Radiolab presents three segments on falling:

  1. Cats who fall out of buildings;
  2. Brian Greene on physics' explanation of gravity;
  3. The story of the first person to go over Niagara Falls in a barrel (with conclusions about what it takes to become famous)

Saturday, September 25, 2010

Toxie Bites the Dust

"Toxie", in this case, refers not to The Toxic Avenger but to a toxic asset purchased by reporters at National Public Radio's Planet Money. In the animation below, those reporters offer their reminiscences:

Who Owns Kafka's Unpublished Work?