If you’re a reader of the usual sites with links that nerds like, you’ve probably seen the video or read the writeup of Clay Shirky’s presentation at Web 2.0 on “Gin, Television, and Social Surplus”.

In his presentation, he describes a conversation with a TV producer, in which he talked about the effort that people put into the “Pluto” entry in Wikipedia. The producer, hearing this story, rolled her eyes and asked “Where do they find the time?”

Clay suggests that the producer believed that “free time”, which he refers to as “cognitive surplus” or “social surplus”, was TV’s by divine right. He posits that the mental energy once devoted to television watching and other equally passive ways of filling one’s spare time is being better spent — on the internet.

(I’ve always found that saying someone has “too much time on their hands” is an intellectually dishonest way of dismissing someone: see my entry Too Much Spare Time? and Cory Doctorow’s essay, Too Much Time on His Hands.)

If you haven’t seen the video of Clay’s presentation, here it is — it’s 16 minutes of your free time well spent:

The TV producer reminded me of a record executive whom I encountered at my first job out of school. It’s an interesting story about programming work and technology in the mid-90’s, the music industry and how predictions about technology can be way, way off.

My First Job Out of School

A screenshot from the 1991 version of the Mackerel Stack, a HyperCard stack the promoted Mackerel’s design work.

My first job fresh from getting my computer science degree at Crazy Go Nuts University was developing multimedia applications in Director at a little company called Mackerel Interactive Multimedia.

The year was 1995, when Myst still defined the cutting edge of multimedia, CD-ROMs and sound cards were still fairly novel peripherals and the only other opportunities for a wet-behind-the ears developer seemed to be at a bank or insurance company, neither of which seemed to be appealing. While the pay wasn’t great — I used to call us the “hos of technology” and did a Full Metal Jacket-esque routine that ended with me shouting “Me so geeky! Clicky-clicky! Me hack for long time!” — the place wasn’t soul-killing like a bank or insurance company might have been. I could wear whatever I wanted, I could dress up my office space however I pleased, the hours were flexible and the co-workers were great: a hip and cool set of young people, with a near 50:50 gender balance. It seemed like Douglas Coupland’s Microserfs, which had just been published at that time, right down to the ill-advised office romances (one of which was mine).

While the dream at the company was to write the next Myst, we paid the bills by writing multimedia apps for clients — typically interactive advertising or educational pieces that would eventually be distributed on CDs or even multiple floppies.

The company went under after a disastrous merger in 1997. Its story was covered by Cory Doctorow wrote an article for Wired about the Mackerel’s demise; unfortunately, it never got published in the magazine. The Mackerel story is told from a different angle by co-founders Dave Groff and Kevin Steele at the Smackerel site, which is subtitled A Biased History of Interactive Media.

Enter the Record Exec

One of the bands represented by the record exec’s company. You can try to guess who they are, and you should be able to figure out the record company as well.

One day during the summer of 1996, one of the founders came into the area where the developers hung out and told us that we’d landed a contract with an independent record label belonging to a major record company.

“Isn’t that a contradiction in terms?” I asked.

Apparently it wasn’t. The indy label turned out to be merely a new branch of the major record company. It would sign up-and-coming underground and alternative acts and use the major label for distribution. If the major label was pin-striped and buttoned-down, the indy label was its edgier nephew, clad in faux Hot Topic-esque cred. In spite of their trying-too-hard-to-be-cool aspects, we thought they’d make an interesting client.

The record company exec was a woman who was about five years past their twenty-something demographic. She gave off more of a business school vibe than a rock vibe. She peppered her speech with business-school-isms like “target audience” and “units sold”. She used the word “product” several times and didn’t use the word “music” or even “album” once. Everything she knew about music didn’t come from being a fan; it came from what she’d read in her market research reports.

“That’s why they don’t call it show art,” one of us quipped.

The Brainstorming Session

The CD player application from System 7, the version of Mac OS from 1996.

One of the goals of this initial meeting was to brainstorm some ideas for interactive apps that we could build for them. I had been working on an idea that I was rather proud of: CD player apps customized for specific albums. For any CD other than the one for which it was customized, it would show a mostly plain interface, plus some promos for the album. However, if you used the player to play the album for which it was customized, it would “come alive” with lyrics, liner notes, album art and so on. It was an attempt to bring back what was lost in the move from LPs to CDs.

“Nice try, kid,” said the exec with great disdain. “We did some market research and we’ve determined that no one will ever listen to music on their computer. People see them as machines for getting work done. We’re aiming for the rec room, the den, the living room and the bedroom, not the home office. You computer guys are aiming for home office.”

“You sure about that?” our production manager asked. “We all use the CD players on our machines. For some of us, our computers are in our bedrooms and living rooms, and they’re also our primary stereos now.”

“That may be true for you,” she replied, “but you guys are the exception. Computers are great, but they’re office equipment. You don’t keep a typewriter or photocopier in your living room, so why would you have a computer there? And that’s where people listen to their music. Office equipment and entertainment: apples and oranges. Trust me - I’ve been in the music industry for a while - no one’s going to listen to music on their computer.”

I listened as a few other people had their ideas shot down in similar fashion. It was a matter of her knowing the music industry better than we did.

The Hail Mary MP3 Play

At some point during the increasingly futile brainstorming session, I remembered something that I’d brought back from the Macromedia User Conference. I reached into my laptop bag and fished out a floppy disc.

“Here, check this out,” I said, slotting the diskette into my laptop. “It’s something called Shockwave, which lets you embed multimedia applications inside web pages.”

“We don’t think there will be much interest in the world wide web outside of technical people. The pictures are tiny, you’re stuck with default fonts, and your customers have to go buy a modem. Too much tech hassle, too little payoff.”

“You should give this a look,” I insisted. “The company that makes the tool we use to write multimedia software is using MPEG layer 3 [the term “MP3″ hadn’t made common parlance yet] compression to squeeze music files into less space. There’s a small multimedia program on this floppy, and a whole three-minute song. It would normally take about 8 floppies to hold this song.”

I put the disk in my laptop and launched the Shockwave application, which started a tune playing.

“Sounds like crap,” she said. “And who’s the band? The Spin Doctors? They’re so over.”

“Ignore the band,” I said, trying to remain patient. “Just think of the possibilities. This three-minute single is only a megabyte in size. It fits on a floppy, which you can hand out, or you’d be able to download it in a reasonable amount of time. The download will be even faster on the new 56K modems.”

“Blah, blah, blah,” she said, making that opening-and-closing hand gesture signifying pointless chatter. “It only means something to you because you’re a techie. I’ve seen the market research, and I will tell you now: people are not going to be getting their entertainment from computers or the internet. It’s going to come from set-top boxes and MiniDisc recharging stations at their record stores.”

At this point, I decided that discretion was the better part of valour. “Well, you seem to have all the market research, so maybe the best thing would be for you to come up with ideas for an interactive application, and then we can hammer out the details with you in a later meeting.”

“I think that would be a good idea,” she said. She rose from her seat to leave the room, shaking her head.

“I don’t know about you,” I said to the others after confirming that she was out of earshot, “but I think the music industry needs to be destroyed.”

Grand Theft Childhood is a new book written by Dr. Lawrence Kutner and Dr. Cheryl Olson, a husband-and-wife team who co-founded the Harvard Medical School Center for Mental Health and Media. In the video above, Drs. Kutner and Olson talk with X-Play’s Adam Sessler about some of the findings from the study documented in their book.

Some notes:

• Their study lasted several years and received $1.5 million in funding from the U.S. Department of Justice.
• In their study, they surveyed and interviewed over 1250 kids and 500 parents.
• There is “absolutely no evidence” that playing violent video games turns children violent.
• What’s more important are patterns of play — there are some that parents and teachers should note.
• In their research, Drs. Kutner and Olson tried to find out which videogame playing behaviours are normal, and which aren’t, a cataloguing of behaviours that did not previously exist in the literature on this topic.
• They debunked the experimental methodologies used by researchers who’ve made the vidogames-violence connection.
• One of the flaws in those older experiements was that it didn’t take short-term vs. long-term behavioural effects into account. He cited an example of boys’ horseplay after seeing an action film: it wears off pretty quickly.
• They found that both boys and girls who played M-rated or violent videogames exclusively more than 15 hours a week to be statistically more like to get into trouble, but they also found that boys who didn’t play videogames at all were also at greater risk.
• At least for boys, gaming is a marker of social competence.
• Consider the case of the Virginia tech shooter: although the pundits were quick to place the blame on videogames, he didn’t play them at all, and his dorm-mates said he wouldn’t play videogames with them.
• Kutner: “Kids who don’t play [videogames] at all are actually at greater risk for getting into trouble. It says something about their social relationships.”

Creative Labs’ PR nightmare (you can find out more here) continues. Consumerist covers the story in their piece, Creative Sparks Customer Revolt When It Tries To Silence Third-Party Programmer, in which they make the astute observation:

Rule of thumb for bad news in the mainstream media: release it Friday so it’s buried over the weekend. Rule of thumb for the web: don’t infuriate thousands of your customers right before you decide to tune out for 48 hours.

A boycott site has been set up: BoycottCreative.com.

And finally, the Creative Labs forum posting that started it all, Message to Daniel_K, has grown to 171 pages as of this writing, most of it being “I will never buy a Creative Labs product again”-type messages.

The Audigy series of Creative Labs’ Sound Blasters lost some functionality with the release of Windows Vista:

• EAX: “Environmental Audio Extensions”, a set of digital signal processing presets that are meant to make sound in games seem more realistic.
• 3D Audio
• Sampling rate conversion
• Audio mixing

Creative’s story is that Microsoft removed “the ‘Vendor Extension mechanism from Vista’s DirectSound implementation,’ which is what Sound Blaster Audigy relied on to generate EAX effects and other audio processing.” Without this bit of code, Sound Blaster Audigy cards produce regular 2-channel stereo sound and not the supposedly more realistic-sounding, spatially-localized sounds for which people bought Audigy cards in the first place.

If this development wasn’t enough to upset Audigy owners, Creative stirred the pot last July by charging $10 for software called Creative ALchemy (that’s not a typo — the first two letters in “ALchemy”, when referring to the software, are supposed to be capitalized). Here’s the description from its page on Creative’s site:

Creative ALchemy (Audigy Edition) restores your Sound Blaster Audigy’s ability to process EAX effects, 3D audio, sampling rate conversion and audio mixing for certain DirectSound3D games in Windows Vista.

Quite predictably, some users were quite annoyed at being asked to pay for this software. In the words of this Gizmodo article, Creative was effectively “charging 10 bucks to fix something that should work in the first place.” A commenter in this CrunchGear article on the issue made a point that the charge could reflect the extra development effort required in making Audigy cards work under Vista, but also suggested that Creative could’ve eaten that cost “for PR purposes”.

For more commentary on Creative Labs’ charging $10 for what some saw as functionality that they had already paid for, see this ZDNet article titled Creative charging $9.99 for Vista EAX update?.

The Good Deed and the Punishment

In the comments for the Gizmodo article I cited earlier, there’s a reference to a free software workaround that enabled the features lost with a Vista upgrade. The workaround was posted to Creative’s forums and the commenter felt it necessary to note that the post “surprisingly, hasn’t been removed yet”.

It’s quite likely that the workaround in question was a solution posted by one “Daniel_K”. Here’s what a Gizmodo article posted yesterday has to say about it:

Developer, good-guy and all around hero, Daniel_K stepped up to the challenge, putting together his own drivers and asking for non-obligatory donations in recognition of his effort. Daniel_K’s drivers restored functionality, and added some extra features to boot.

You might think that Creative would be pleased: here’s a user with the will and the skill to develop a software fix that restores functionality to their hardware under Vista — essentially crowdsourcing at its best.

However, they were not pleased. Here’s a message posted to their forums by Creative’s VP Corporate Communication, Phil O’Shaughnessy. I’ve emphasized the part of the message that really grind my gears:

Daniel_K:

We are aware that you have been assisting owners of our Creative sound cards for some time now, by providing unofficial driver packages for Vista that deliver more of the original functionality that was found in the equivalent XP packages for those sound cards. In principle we don’t have a problem with you helping users in this way, so long as they understand that any driver packages you supply are not supported by Creative. Where we do have a problem is when technology and IP owned by Creative or other companies that Creative has licensed from, are made to run on other products for which they are not intended. We took action to remove your thread because, like you, Creative and its technology partners think it is only fair to be compensated for goods and services. The difference in this case is that we own the rights to the materials that you are distributing. By enabling our technology and IP to run on sound cards for which it was not originally offered or intended, you are in effect, stealing our goods. When you solicit donations for providing packages like this, you are profiting from something that you do not own. If we choose to develop and provide host-based processing features with certain sound cards and not others, that is a business decision that only we have the right to make.

Although you say you have discontinued your practice of distributing unauthorized software packages for Creative sound cards we have seen evidence of them elsewhere along with donation requests from you. We also note in a recent post of yours on these forums, that you appear to be contemplating the release of further packages. To be clear, we are asking you to respect our legal rights in this matter and cease all further unauthorized distribution of our technology and IP. In addition we request that you observe our forum rules and respect our right to enforce those rules. If you are in any doubt as to what we would consider unacceptable then please request clarification through one of our forum moderators before posting.

Phil O’Shaughnessy
VP Corporate Communications
Creative Labs Inc.

Simply put, Creative is saying that by fixing stuff that they’ve broken on purpose in order to gouge more money out of their customers, you’re stealing from them. It’s just another case of a vendor seeing its customers as “batteries for their Matrix”, or a Jay Michalski puts it, gullets that live under the end of the distribution system’s conveyor belt, where they gulp down products and crap out cash.

Oddly enough, there are a couple of commenters to the Gizmodo articles who come to Creative’s defense, one of whom brings up the fact that if Daniel_K did any reverse engineering of Creative’s drivers for Audigy cards, he broke the EULA. These people are the sort that Dante was thinking of when he wrote about that part of the 8th Circle of Hell reserved for evil counselors.

Links

• Creative Labs’ Forums: Message to Daniel_K
• Gizmodo: Creative Presents Cease-and-Desist Note to Developer Hero
• Wired: Creative: Fixing Our Crippled Sound Card Drivers Is “Stealing our Goods”
• Articles from July 2007 on ALChemy:
  • Gizmodo: Creative Charging $10 to Restore EAX Effects in Vista
  • ZDNet: Creative charging $9.99 for Vista EAX update?
  • CrunchGear: Creative Charges $9.99 For Enhanced Vista Drivers
• Want to email Creative Lab’s VP Corporate Communications, Phil O’Shaughnessy? He’s at poshaughnessy@creativelabs.com
• You can still get your hands on Daniel_K’s fixes — here’s a page featuring a torrent containing them.

The toy companies Hasbro (who own the rights to Scrabble in the U.S. and Canada) and Mattel (who own the rights to Scrabble for everywhere else in the world) have asked Facebook to remove the “Scrabulous” application as it infringes on their copyright for the game.

Mathew Ingram has already said this but I’ll say it again: Mattel and Hasbro are making a mistake by giving in to the knee-jerk impulse to think “infringement!” and calling in the legal team. All that will do is generate ill will towards them. A far more profitable approach would be for them to simply buy the application from its creators — which they could easily do for a few hundred thousand dollars, mere pin money to them — and use it as a marketing tool for Scrabble as well as other games in their stable.

For the second time in a week, a group of Canadian Facebook users may have broken the law by publishing the names of youths charged under Canada’s Youth Criminal Justice Act. This law puts limitations on the publication of the identity of people charged under it; the basis for this is that revealing their names would be detrimental to rehabilitation and to public safety. The publication ban also applies to the identities of victims and witnesses in cases where people are charged under the act. There are exceptions to this gag order, such as in cases where the crime is transferred to adult court or if the youth court has found the accused guilty and imposed an adult sentence.

It happened with the first homicide of the year here in Toronto, in the case of a 14-year-old girl who was murdered on New Year’s Day. While newspapers, TV and radio stations and their associated websites complied with a 24-hour ban forbidding the publication of the victim’s name, some Toronto Facebook users created a memorial group in which both the victim and her two accused killers — a 17-year-old boy and 15-year-old — were named. The group was created by a 16-year-old who said “felt entitled to ‘pay attention’ to someone who was special to him and who had no idea he might have been violating the Youth Criminal Justice Act.

It happened again, this time in Alberta, where the names of four teenage boys accused of microwaving a cat to death were published in a Facebook group. Reactions were (understandably) harsh, with posted comments like “I think people like that should be shot”, “They will all get their faces smashed in by January 6th” and ” would say these monsters should be tortured, let society at them”.

These appear to be cases where technology has entered a grey area with the law. Referring to the case of the 14-year-old murdered in Toronto, a Toronto area constable said that “It’s a very good question if the people who post things on Facebook are actually breaking the YCJA. I guess it all boils down to whether Facebook is eventually determined by somebody that it is a publication.” In the story on the Alberta boys who accused of killing the cat, a British Columbia lawyer is of the opinion that the YCJA was broken and — as even someone at their first day of law school will tell you — ignorance of the law is no excuse.

My own opinion is that posting things online, whether in a blog, social network site, wiki or any other public online forum, is publication, even if you’re not doing it professionally. If online publishing gives you at least the same potential audience and reach as a city newspaper, then as an online publisher, you also have the same legal and ethical responsibilities that a city newspaper has.

Luckily for me, I worked at Crazy Go Nuts University’s main student newspaper, where we got brief on Canadian law and journalism and benefited from having one of the Globe and Mail’s lawyers do a regular Q&A session with us. I may not be able to quote chapter and verse of Canadian journo law, but I think I’ve can do a decent job at “sniff testing” to see if a posting will get me in legal hot water. I think that a number of bloggers — people who post articles on a regular basis — have made themselves familiar with the legal aspects of blogging, although I’m sure a number haven’t. Things can get hairy on online forums like Facebook, which is made for people who don’t publish regularly but do want some kind of online presence. On these places, users probably don’t think of themselves as publishers and might be unaware that they’re opening themselves up to charges of libel, defamation or violating the YCJA.

Paging Canadian lawyers who specialize in the internet — fellow neighbourhoodie Rob Hyndman, and friend-by-correspondence Michael Geist, I’m lookin’ at you! Do you know of any places where a Canadian blogger or Facebook user can find out more about the law and online publsihing?

Canada Rocked by Copyright Scandal, reads the Inquirer headline. Speaking as a Canadian, I’m not rocked. Slightly tickled with schadenfreude perhaps, but not rocked.

Here’s the story: Patricia Neri, the Director General of Copyright Policy at Canadian Heritage has been removed from her position for a conflict of interest — inappropriate involvement with Doug Frith, President of the Canadian Motion Picture Distributors Association (and one of Canada’s biggest copyright lobbyists). We knew from Sam Bulte’s campaign disaster from the 2006 elections (where yours truly is proud to have played a part) that the government was in bed with big content, but we had no idea it was literally.

Canada’s number one good guy in the copyfight, Michael Geist, has this to say:

While Neri’s personal life is no one’s business but her own, this does raise troubling questions about the quick passage of Bill C-59, the anti-camcording legislation, since Neri appeared as a witness before a Senate hearing on [an unusually speedily-passed bill on camcording in theatres] with [Doug Frith] in the room. The Privy Council Office places particular responsibility on public servants that appear before a Parliamentary committee since they do so on behalf of the Minister.

That’s the answer, courtesy of an Engadget interview with Apple VP Phil Schiller. Strangely enough, some thanks goes to those enemies of fair use, the RIAA:

Well, the RIAA wanted to be able to distribute ringtones of its artists without having to pay them big money to do so (surprised?), and it won a decision last year before the Copyright Office saying that ringtones weren’t “derivative works,” meaning they didn’t infringe on the copyright of the songwriter. It’s a little more complicated than that, but essentially, if the RIAA hadn’t won, ringtones would cost even more, since no one would be able to make them without a license from the songwriter.

Everything has a catch, and ringtones are no exception:

• If you’re making a ringtone from an MP3 file that you’ve ripped from a CD you’ve purchased, you’re in the clear. Just don’t sell or distribute it.
• If you’re making a ringtone from a file you purchased from the iTunes Music Store, you’re breaking the law! Here’s Engadget’s explanation:
  

  Judging from the fact that the iTMS EULA prohibits the use of downloaded files as ringtones, we’d say it’s more than likely because Apple’s contracts with the various labels represented in the iTMS specifically forbid it. We haven’t seen them, but we’d bet that ringtones — and the licenses for using songs as ringtones — have their own lengthy section in Apple’s contracts, and that Apple isn’t allowed to sell files for use as ringtones without coughing up more dough. Steve has said as much, after all. Otherwise the selection would include more than just the 500,000 songs you can get right now.

While we at Global Nerdy stress that you should obey all local laws, who’s going to know if that ringtone you made came from a ripped CD or an iTunes purchased tune?

I attended last night’s presentation at the Mississauga Campus of the University of Toronto featuring Mr. Free Software himself, Richard M. Stallman. The presentation was titled Copyright vs. Community in the Age of Computer Networks.

Here’s a brief abstract of the presentation, courtesy of Greg Wilson’s blog:

Copyright developed in the age of the printing press, and was designed to fit with the system of centralized copying imposed by the printing press. But the copyright system does not fit well with computer networks, and only draconian punishments can enforce it.

The global corporations that profit from copyright are lobbying for draconian punishments, and to increase their copyright powers, while suppressing public access to technology. But if we seriously hope to serve the only legitimate purpose of copyright—to promote progress, for the benefit of the public—then we must make changes in the other direction.

Scott Graham, the new acting chair of Mathematical and Computing Science at U of T Mississauga did the introduction, after which I took notes, which appear below.

Note: anything in quotes is a direct quote from Stallman.

What’s This About?

• This is not a speech about free software
• Rather, it’s an answer to a question that people often asked me after my free software speeches

Free Software: A Quick Review

The Four Freedoms

• Free software is software that respects the user’s freedom
• Many people mistakenly believe it’s about software that’s free as in “no cost” because of the ambiguity of the English word “free”
• The “free” in “free software” is free as in the French libre, not as in the French gratuit
• The way we explain it to English speakers is “free as in speech, not free as in beer”
• We believe that there are 4 essential freedoms that a software user must have:
  • Freedom 0: The freedom to run program as you wish, for any purpose.
  • Freedom 1: The freedom to study the program’s source code to learn how it works and make changes to it. You need access to the source code to do this.
  • Freedom 2: The freedom to help neighbour, by being able to distribute copies of the software.
  • Freedom 3: The freedom to contribute to community by being able to give away your modified versions of the software.

The GNU Project and Linux

• The opposite of free software is proprietary software, which is unethical software
• The purpose of free software is to correct the social problem of proprietary software by replacing unethical proprietary software with an ethical system.
• In 1983, I set out to create a free operating system, GNU
• GNU is short for “GNU’s Not Unix”, a tip of the hat to the Unix operating system, from which GNU takes some technical ideas
• Began development of GNU in January 1984
• In 1992, GNU nearly had all the essential components to be a complete operating system
• The last gap was filled in 1992 by the Linux kernel, which was released in 1991, but adopted the GPL as its distribution licence in 1992
• The combination of GNU and Linux the Linux kernel formed a complete operating system, GNU plus Linux
• Many people call it “Linux”, which is wrong; Linux is just the kernel of the system, and ignores the effort that went into the other parts
• Through the 90s, more and more people invited me to talk about free software
• At the end of these talks, I would often be asked “Do these ideas apply to anything other than software?”

Applying Free Software Principles to Physical Objects

• For something to be free, it must respect the four freedoms
• Let’s test physical objects against the four freedoms:
  • Freedom 0: Yes. If you own a physical obkject, you’re free to use it as you wish (within legal constraints). See? we’re already better off, rights-wise, with physical objects than with a lot of software.
  • Freedom 1: Yes. In general, if you own a physical object, you’re free to make changes to it, as long as it was feasible.
  • Freedom 2: No. It’s hard to copy an object. For physical objects, this is a meaningless question.
  • Freedom 3: Once again meaningless, as it’s hard to make copies of physical objects

A Brief History of Copyright

• Information is different — it’s more easily copied
• With published works, copyright law is the only thing that might deny you the four freedoms
• Software isn’t like that, because a lot of it comes with additional restrictions
• What should copyright law say about those other kinds of works?
• We need to look at the history of copyright law

Ethics and Technology

• Copyright is closely connected to copying technology
• Technology can’t change basic ethical principles — they’re too deep
• However, we can apply basic ethical principles to new technologies
• Changes of context can change the consequences — consider: if we ever developed a technology that could realibly resurrect the dead, would murder still be a serious crime?

Copying By Hand

• In the ancient world, copying was simple: you read one copy, you wrote another
• Using this method of copying, there are no economies of scale — to make 10 copies took 10 times as long
• No special skill or equipment was needed, other than the skill and tools to read and write (which in those days, few people had)
• Result: copying was done in a decentralized fashion
• As far as I can tell, nothing like copyright in the ancient world

The Printing Press

• The printing press represented an advance in copying
• It made copying more efficient, but not uniformly — some kinds of copying worked better than others
• Printing was relatively fast, but setting up the type was time-consuming
• Efficient only for mass production
• It required specialized equipment and skill, which most people didn’t have it
• Result: copying was done in a centralized fashion
• Hand-copying still common in the first centuries of printing: they very rich had hand-copied books because custom books were expensive, as did the very poor, because copying books was the only way they could own one

Precursors to Copyright

• The concept of copyright began in the age of the printing press, c. 1500
• The first English system that was similar to copyright was a form of censorship — a permanent monopoly granted by the king to a publisher
• This was — “after the glorious revolution” — replaced with a system of copyright, which was granted to the author for 14 years
• Copyright was meant to encourage writing by making it more feasible for authors to make money from writing
• It was a constitutional decision: Congress was allowed to set up a copyright system as a means of promoting progress
• Not an entitlement, but an artifical scheme to modify people’s behaviour, to encourage the production of works to better society
• It was also a constitutional decision that copyright must last for a limited time

Copyright as Originally Intended

• The media corporations want people to believe copyright is something that authors inherently have and then hand over to publishers; they don’t want people to think of it in its intended context
• It’s an industrial regulation: copyright is meant to restrict what publishers could do, not readers
• As an industrial regulation, it was:
  • Fairly painless: readers were not restricted
  • Easy to enforce: it was enforced only against publishers, and it wasn’t necessary to invade people’s homes to enforce it
  • Publicly beneficial: people traded away a freedom they couldn’t exercise anyway, and they got a benefit
• As a result, copyright wasn’t very controversial

Copyright Now

• Now with digital data and computer networks, it much easier for us to copy and manipulate information
• Digital technology has changed the effect of copyright law
• Copyright used to be a power that was:
  • wielded by authors
  • over publishers
  • to yield benefits to the public
• Now it’s a power that is:
  • wielded by publishers
  • to punish the public
  • in the name of the authors
• Now the public wants to copy and share — what would a democratic government do?
• They’d say “We have to renegotiate this deal, now that the freedom freedom to copy can be exercised”
• You can measure the non-democratic tendencies of a government by their tendencies to do the opposite of the previous statement

Copyright’s Expanding Time

• Consider the dimension of time
• In 1998, the copyright period was extended by 20 years for both old and new works
• Extending copyright for old works: Did they have a time machine? How did they hope to encourage authors in the 1920’s to make new stuff?
• Extending copyright for new works: 20 more years of copyright now might theoretically encourage the creation of more works, but the marginal value of 20 more years of copyright discounted for 75 years in the future is zero
• Can a publisher give their projected balance sheets for 75 years in the future? Most industries don’t plan beyond the next 5 years
• Clearly, it’s just an excuse — politicians have been bought with campaign contributions and the corporate media are not examining it
• The law is the “Sonny Bono Copyright Act” — he was the Church of Scientology’s pet congressman, and they use copyright law to silence critics
• The law is also known as the Mickey Mouse copyright act since it was paid for by Disney
• The copyright of the first Mickey Mouse cartoons, Steamboat Willie, was about to expire [ed. note. Steamboat Willie is not the first cartoon to feature Mickey Mouse, but it’s the one that made Mickey famous.]
• Steamboat Willie itself borrowed from other films
• This is “perpetual copyright on the installment plan”: they can’t officially establish copyright forever, so they do the next best thing: extend it for 20 years every 20 years
• The idea: nothing should ever go into the public domain again
• When there is a problem in the U.S., it doesn’t try to solve that problem, it tries to impose it worldwide — as with copyright

Copyright’s Expanding Breadth

• Now consider the dimension of breadth
• Copyright was not meant to restrict all uses of a work, just some
• In 1998, publishers got the DMCA passed, giving them total power
• It allows them to implement whatever rules they want, and bypassing them is illegal
• It effectively allows publishers to write their own laws
• DVDs: You have the right to watch them, but only on authorized players
• You do not have the right to use a free player
• The only authorized players are designed to restrict you — see defectivebydesign.org
• In France, it’s illegal to even possess a copy of the free software that can play DVDs
• In music, there are these “corrupt discs that look like real compact discs”, which are unreadable by computers
• In some countries, they have to be labelled as such
• Once while in Spain, I was given such a disc and I said: “Here we see the face of the enemy. Please take this back to the store because I don’t want them to keep your money.”
• Since there is free software that can read encrypted DVDs, movie compnies want a replacement system and came up with AACS (used in HD-DVD and Blu-Ray)
• “Give AACS the axe!”
• It didn’t take long for ACCS to be cracked — someone found the key and published it
• It was posted on many community sites, and although those sites took those posts down, other people re-posted
• It was “an upswell of popular resistance against a new tyranny”
• “Just seeing that the spirit of resistance can well up doesn’t mean it’s over”
• Consider the Sony rootkit [a.k.a. XCP — Extended Copy Protection]
  • It contained illegally copied GNU software (it did not follow the terms of the GPL in copying it)
  • In spite of this, Sony wasn’t prosecuted for copyright infringement (only ordinary people will get charged with that!)
  • Sony was made to promise never again include a rootkit in their materials
  • So they’re doing an end run by putting rootkits right into computers from the get-go
  • And this rootkit? “It’s called Windows Vista”
• “Restricting users is the purpose of Windows Vista”
• Visit BadVista.org for details
• “Even if you’re not ready to escape to the free world, at least don’t let Microsoft tighten the chains on you!”
• “Vista is one big back door”
• It forces users to use specific software>/li>
• It enabled Microsoft to send a command to computers running Vista to stop using any specified piece of hardware (useful if the hardware doesn’t support DRM or other similar anti-user measures)
• “What arrogance!”

eBooks

• Book publishers would like to take away certain traditional freedoms associated with books, such as:
  • The freedom to read it anywhere you like
  • The freedom to borrow it from a library
  • The freedom to lend it to a friend
  • The freedom to sell it at a used bookstore
  • The freedom to keep the book as long as you want and pass it on to your kids
• Publishers realize that they might face opposition to the loss of these freedoms, so they’re trying to sneak it in through ebooks
• The DMCA took away these freedoms from ebooks — now the next step was to get people to switch to ebooks
• The first step worked, but the second didn’t, but not because people valued their freedom too much; rather it’s that reading off the screen wasn’t good enough
• The screen-reading experience will improve with epaper, and then the publishers will try again
• There’s a dental school in the U.S. where all the textbooks are ebooks that expire after a year
• I had a brush with ebooks: a publisher that wanted to start a line of ebooks with my biography
• I would only let them do this if they would publish it unencrypted. They balked, but eventually, there was a publisher who would agree to my terms
• There’s an organized hype campaign to promote ebooks
• One bit of evidence: on a flight in Brazil, I was reading an in-flight magazine and in the spot where there would be an editoral in a “real” magazine, there was an article speculating on how many years it would take for ebooks to be adopted
• In airline magazine, unless the article is about a destination that the airline covers, you can be sure it’s paid for
• We can be sure that they’ll push ebooks again
• We have to be constantly ready to defend our freedom

• What would governments do if they were truly democratic?
• They’d reduce the amount of power exercised over us

Proposed Changes to Copyright Time

• Let’s look again at the dimension of time
• Instead of extending copyright terms, reduce them!
• Over time, we’ve seen that the publication cycle has been getting shorter
• In U.S., and I’m sure the situation is similar in Canada, most books are remaindered within 2 years and out of print within 3
• Shorten the copyright period to a decade, starting with date of publication (rather than the date it’s finished being created; we want authors to have the time to find a publisher) — start the clock ticking at the time of first publication
• When I proposed this, a well-known fantasy author beside me said “10 years? Anything more than 5 is intolerable!”
• Copyright not good for most authors. Superstars, yes, but for most authors, no
• Publishers grind authors at the same time they “defend” them
• The fantasy author beside me told me that he wanted the rights to his book back since they were out of print, nut his publisher kept claiming they weren’t (meaning that the rights still rested with them)
• He had to sue to get his rights back — that is, to get permission to hand out copies of his own books
• This sort of thing is not unusual; it extends to all fields
• More than 5 years of copyright would not affect him unless he became a superstar
• We should start with a 10-year copyright period, watch the results, and fine-tune the length of the period as needed
• This will get rid of the bulk of the problems we have now where copyright can sometimes last 150 years

Proposed Changes to Copyright Breadth

• Now let’s look at the dimension of breadth
• We should arramge different copyright deals for different kinds of works
• Works should be distinguished not by media, but by the way the works contribute to society
• Each type of work is important in a different way, but no type is more important than any other
• Works could be divided into these three categories:
  1. Practical functional works
  2. Works that witness the thoughts of certain parties
  3. Arts and entertainment

Practical functional works

• These are things that we use to do practical useful work
• Examples:
  • Reference works
  • Educational material
  • Designs of equipment and buildings
  • Programs
  • Recipes
  • Fonts
• These must be free (as in the four freedoms). If you use the work to do practical things, you must be free to control what you do.
• These are things that society needs
• There must be freedom to distribute unmodified and modified versions of these works
• 20 years ago, it might have been rational to say that without a scheme to restrict the sharing of such works
• Proprietary software makes no contribution to society
• I would like to maximize the amount of free software and minimize the amount of proprietary software, “preferably to zero”
• Society’s needs can be satisfied by free software
• Look at recipes: recipes are shared, yet there are gainfully-employed cooks everywhere
• Look at Wikipedia: it’s proof that it’s possible for a free reference work to exist and also be good
• Educational works need to be free

Works that witness the thoughts of certain parties

• Modifying these works misrepresents the authors
• When I write essays, I don’t grant the permission to modify them
• I recommend a compromise copyright system that would prohibit modification and commercial distribution
• There would still be the freedom to non-commercially distribute unmodfied copies
• Sharing the basis of society — attacking sharing attacks the basis of society — “That’s as anti-social as anything gets”
• The same as now, but with an essential minimum freedom

Arts and entertainment

• The purpose of these works lies in the impact they make on the user
• The issue of whether to allow modification: difficult to deal with
• There are valid arguments on both sides
• One on hand:
  • A work can have an artistic integrity
  • This is sometimes true…
  • But not as often as the authors think!
  • Witness the number of authors who are all too willing to have Hollywood butcher their work
• On the other hand:
  • Modification is a way to make a contribution to art
  • The folk process is based on modifying work
  • Consider Shakespeare: he borrowed plots from other plays written just decades before — they’d be illegal if done today — one could say to him “You’re just making a cheap ripoff”
• In the end, what allowed me to resolve this is that there’s no rush to make a modfied version of a work
• “You can wait 10 years!”
• This restriction is not acceptable for works of practical use, but acceptable for works of art
• I propose a compromise: you should be free to non-commerically distribute unmodified copies for 10 years, after which you should be free to distribute modified copies

On Music Sharing

• Music sharing on the net should be legal
• Record companies like to pretend it’s a disaster for musicians
• But really, musicians can’t lose what they’re not getting
• Mainly long-established superstars are the only ones making money from their records
• The rest generally don’t unless they’re wildly successful
• Overall, the record companies make up for 4% of all musicians’ income
• The money given to a band to cover the costs of publicity and recording is considered to be an “advance”
• Given that the record companies treat the musicans so badly, musicians aren’t going to lose money if we don’t buy their records
• The main benefit of the record companies to musicians is that they provide publicity, which in turn gets people to attend their concerts, which is where they really make their money
• We can give them publicity by sharing their music
• “Pry loose of the grip of the hype”
• The record companies just provide “carloads of money, squeeze it into something like music and dish it out at us”
• Music will be better off without them
• Legalize music sharing

• Also: support musicians better
• There are two ways we can do this:
  1. 1. A tax:
     • A tax on anything that relates to internet use
     • Divide up this money among musicians based on their popularity, but not in linear fashion
     • Have function that tapers off
     • A superstar that is 1000 times as popular will not get 1000 times the money, but 10 times
     • Guarantees better money across the board for all musicians
     • Want the tax to support musicians so they don’t have to get a day job, but concentrate on their music
  2. 2. Voluntary payments:
     • Imagine if every player had a button you could push to send a dollar to the band
     • “You wouldn’t miss one dollar”
     • Imagine people pushing that button once a month or even once a week
     • Read: I read that the average American spent $20/year on music
     • If the average American sent a dollar a year directly to the musicans, musicians would be supported just as well as the current system
     • If they push the button twice a year, that would cover not just performers, but composers too
     • We could make a PR capaign with a positive message, instead of those “piracy” campaigns: “You like those bands, have you sent them a dollar today?”
     • I don’t like the way they equate people who share music and movies they like with people who rob ships at sea

Q & A Session

“How can programmers hope to make money under free software?”

One of the first questions was the inevitable one about how programmers can make money with free software. I skipped taking notes for this one, as I needed a break from typing and I’ve seen this played out time and again. The guy who asked the question — presumably a student — made the mistake of referring to the operating system as “Linux” and not “GNU plus Linux” or “GNU/Linux” when talking to Stallman, which prompted the usual eruption.

I could’ve sworn that knowing never to call it just plain “Linux” in front of RMS was basic knowledge or lore in our field, but perhaps I’m just not seeing it from a student’s perspective.

Question about the GPL

RMS pointed out that any license that recognizes the four freedoms is free software. When asked about what the GPL v3 had to say about “software as a service”, RMS asked the person to clarify what he meant by that term (he hates terminology he considers ambiguous).

The person asked if a service that lives on a server was being used, did the users have the four freedoms with the software behind that service?

His answer was that the four freedoms in that case belonged to the owner of that server. He also said that if you run a service and the software is under the GNU Afero licence, you have to share the code. The GNU GPL3 licence does not require this.

Question about patents

When asked about patents, Stallman said:

• There is nothing in common between copyright law and patent law — this is a widespread misconception
• The issues they raise have nothing in common
• Comes from the fashionable and misleading term intellectual property”
• The term is used to confuse
• Reject the term “intellectual property”
• I’m not totally against either law, but applying patent law to software creates a problem
• Developing a program require incorporating a large number of ideas
• Software patents are “an absurd system of getting software developers tied up in knots”
• Corporations file patents because they figure they’ll gain on the balance
• Software patents should not exist
• An analogy: software and say, symphonic music or novels:
  • They combine lots of ideas
  • Suppose each idea could be patented — what would the effect be?
  • There is no danger that someone you’ve never heard of or never dealt with will have copyright on your work
  • But there is a danger that someone you’ve never heard of or never dealt with might have a patent on something in your work
• In the U.S. Constitution, copyrights and patents each have one line
• Amother ambiguity with the term “intellectual property” is that it includes tradmark law, which unlike copyrights and patents, is not an incentive for creators
• The term “intellectual property” generalizes too far
• Whenever you hear someone say it, say “Hold on, this discussion is confused! IP is not a coherent reference to anything!”

One Final Word

He closed with “Get active and fight against [Canadian copyright bill] C-60…and I don’t mean Buckyballs!”

In a move that could ignite a major debate about consumer “fair use” of TV programming, Cablevision Systems will unveil plans to test a service that gives cable subscribers the ability to record and time-shift shows using existing digital set-top boxes.

Although it works just like TiVo and other digital video recorders (DVRs) — consumers choose in advance which shows to capture and can fast-forward through ads — the recording itself will be stored at the cable system, not on a hard drive in the consumer’s home.

USA TODAY’s prediction of trouble between Cablevision and Big Content proved prophetic. Last week Cablevision lost a court battle over their network DVR service

A federal judge has ruled against Cablevision Systems’ experiment with network digital video recorders, siding with Hollywood studios who said the devices would have violated copyright law.

Several studios and cable networks sued Cablevision, saying the company didn’t get their permission to rebroadcast the programs.

Cablevision argued that because the control of the recording and playback was in the hands of the consumer, and not Cablevision, the devices were compliant with copyright law.

Are things going so well in Hollywood that Big Content can take their cable-operating friends to court as well as their internet-based frenemies?

Cablevision (and every other cable company) was simply looking for a way to offer time-shifting to their customers, but with a better economic model than putting a box with a hard drive in every home. When you think about it, the studios would actually have been in a much better position to enact content restrictions (such as no commercial skipping, or time-bombing recorded shows) on a network DVR service rather than with a traditional client-side DVR architecture.

And yet, Big Content would rather kneecap a longtime collaborator in Cablevision for the sake of a rebroadcasting right that exists in theory, rather than in practice. In practice, as far as the customer is concerned, this is just the same as any DVR.

For all their protests to the contrary, the movie studios seem intent on empowering interlopers like Apple (hey, even Scoble likes Apple tv), rather than protecting their natural friends in content distribution. For Apple, content is a means to an end (an important one, to be sure). Making Apple’s hardware-based business model more powerful may be the ultimate outcome of Big Content’s actions against network DVRs.

One issue that I have not seen addressed in the RIAA vs. P2P front relates to the potential for an unsupecting home PC user who just happens to have an open WiFi router being used by a neighbor to share files to get sued by the RIAA when their IP address shows up on the RIAA’s list. From the surveys I’ve done, there are a lot of open WiFi routers a file swapper could easily use to both serve and download files. So, is the RIAA going to have to shut down open WiFi to get its way?

A year later, Boing Boing ran an article titled Open WiFi for plausible deniability, which cover’s Micah Joel’s running of “an open WiFi network in order to give himself plausible deniability for bad acts that can be traced to his IP address”:

I’ve already composed my reply in case I receive one of these letters someday. “Dear Comcast, I am so sorry. I had no idea that copyrighted works were being downloaded via my IP address; I have a wireless router at home and it’s possible that someone may have been using my connection at the time. I will do my best to secure this notoriously vulnerable technology, but I can make no guarantee that hackers will not exploit my network in the future.” If it ever comes down to a lawsuit, who can be certain that I was the offender? And can the victim of hacking be held responsible for the hacker’s crimes? If that were the case, we’d all be liable for the Blaster worm’s denial of service attacks against Microsoft last year.

Well, we’re now a few years and two generations of 802.11 down the road, and the RIAA has finally done it. Cory writes:

The RIAA is asking a judge to rule that anyone who provides bandwidth should be responsible for all the activities of his users. This would doom open WiFi — and all other public networking efforts. But who needs anonymous speech, anyway? After all anonymity fuels irresponsible behavior, like founding the United States.

The RIAA just wants to stand up for freedom. First they convinced Russia to force licensing and 24-hour inspection of presses, now they want to eliminate anonymous speech here at home.

Record companies are quick to cite the First Amendment when someone suggests banning music with “suggestive” lyrics, but they’re not so big on free presses and anonymous speech. It’s like they love free speech, but not enough to share it with the rest of us.

It’s all part of their “rabbit hunting with Howitzers” legal strategy. It stems from the case of Debbie Foster, who was being sued by Capitol Records, a part of the RIAA cartel, for allegedly sharing copyrighted material on a P2P network. It turned out that she wasn’t the culprit; it was someone else using her account. The case was dismissed last year with a filing that gets pretty damned close to calling out the RIAA as extortionists — or at least as close as you can get outside of a TV or movie courtroom drama. Foster didn’t stop there; she filed a motion asking the court to make the RIAA compensate her for her legal fees and got that compensation in the form of a $50,000 award earlier this month.

This award creates a legal headache for the RIAA. As Listening Post puts it: “If the ruling stands, the RIAA will have to be much more careful about who it sues going forward, adjusting its scatter-shot approach to filing such lawsuits in order to avoid suing the wrong people”.

Hence the RIAA’s latest move: filing a motion for reconsideration that forces them to pay Foster’s legal fees, a key point of which is that they’d like a ruling that the owner of an ISP account is responsible for all activity on that account.

James “Smalltalk Tidbits, Industry Rants” Robertson makes a couple of interesting observations:

• He points to an Ars Technica story that says that the RIAA, in their motion, “lay out their disagreement with the judge’s reasoning while taking time to point out that the fees awarded far exceed any damages they could have recovered should their suit have been successful”, to which he quips “What, you mean there are risks in this strategy?”
• He points out that it’s not just the individual running an open node at home or the small cafe running an open node to get customers who are in trouble:
  

  …any entity that offered a net connection - Starbucks, a hotel, a municipality (etc) - would have a huge potential liability on their hands. They might well decide to just discontinue in order to not expose themselves. Yeah, there’s a world I want to live in.

Links:

• RIAA Declares War on Open WiFi (Boing Boing)
• RIAA Fights Back, Threatens Open Wi-Fi (Wired Listening Post)
• RIAA Appeals Attorneys’ Fee Award (Ars Technica)
• The RIAA Doesn’t Enjoy Reality (Smalltalk Tidbits, Industry Rants)