Ownage, Licensing, and Pwnage: The Kindle and 1984

With a license, do you own the e-book?

Recently, Amazon.com deleted electronic books written by George Orwell back from customers’ Kindles, including 1984. While Amazon did return the money for purchase, customers were upset that something they “owned” was removed. Amazon explained that it  deleted these e-books because they  didn’t have the rights to sell the book in the U.S., though these works are in the public domain in some other countries.

As the Wall Street Journal law blog (and related article) states:

the incident raises some difficult questions about what it means to “own” books in the digital age. [O]wning an e-book is more akin to licensing a piece of software than it is to owning a bound volume: access comes with fine-print terms of service, and often digital rights management software to ensure that you abide by the rules.

Maybe it is just because these are books?

Books have a [] entrenched culture of sharing — libraries exist for lending dog-eared volumes — raising potentially knottier legal issues.

Actually no. It has to do with the new licensing model — used for the vast majority of electronic items. Figuring out ownership is much easier to determine when there is a physical or non-reproducable item that a boundary can be put around — a house, a shirt, a physical book.  Physical items can be sold and copyright is the most important possible limiter for intellectual property.

However, when a license is involved, the license terms rule. This means that the license can prevent sale or reuse (and some licenses directly state that they obviate fair use). Yet licenses can allow for greater use of copyrighted materials than copyright law allows — such as licensing truly unlimited use for educational purposes (fair use does not allow this expansive type of use!).

And this makes everything confusing for many because there is not one standard of use, even for libraries: “Use print materials based on copyright (including fair use), and electronic materials based on a license? I just want to use it!” The Memory Hole created by placing more and more materials behind a license are yet to be known, but the Kindle example is another great example of why copyright law needs to be changed — to further clarify safe harbours like fair use.

I Read a Book! Chris Anderson’s “Free”

So I was at a reception the other day, talking to someone about the internet and the free/gift economy and how it’s the inevitable future of a lot of industries, including journalism. The discussion invariably turned to Chris Anderson’s Free: The Future of a Radical Price and I talked up the book and Anderson’s theories.

“So you liked the book, then?” asked my colleague.
“No, not really.” I said, after a pause.
Considering my enthusiasm over Anderson’s last book, The Long Tail, and my own defense of the free/gift economy model on this very blog, my cool reception to “Free” surprised the hell out of me, too.

With all the hype and debate surrounding Chris Anderson’s book, months before it was even released, it’s no wonder that the backlash started less than a week after it officially hit bookstores. Earlier this year, the influential Wired editor and author of The Long Tail brought his thesis of giving products away as marketing strategy to South by Southwest and was greeted with as much skepticism as enthusiasm from attendees (myself included). So Malcolm Gladwell’s review of the book in the New Yorker summed up a lot of the overall criticism of the book, even before it was released:
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Will the Hallyu Wave Reach the U.S.?: Music: Part One

Based on the popularity of our earlier post on the hallyu wave, we plan on writing more about Korean culture. We are starting with music — specifically pop and rock. This first post will mention some of the issues with Asian music in the U.S. but we will follow with separate posts discussing pop and rock.

So as a reader, you likely noticed a shift within the first paragraph — from Korean-produced culture to Asian culture. This is not by accident; while there are many real differences between the cultures of Asia, they are often perceived of as a monolith in Western eyes.

The perception of Asia as an exotic monoculture helps explain that the elements of Asian popular culture that make their way into American culture are generally subcultural and often nerdy/geeky (kung fu; anime; manga/manwha).

So what about music — the universal language? Most of the Asian (or Asian-American) musicians that are known in the U.S. are classical musicians – not involved in pop or rock. Of course, there are exceptions, but they are limited. Why?

Frederick Stiehl in Asia Pacific Arts states that

America has known few foreign artists outside of Latin America or Britain. Indeed, America has proven itself to be quite resistant to foreign singers, and especially to non-English artists. A few exceptions include Icelandic Bjork and German Rammstein …. However, both of these artists demonstrate a specialized style, known to but not followed by “mainstream” Americans.

But there are also issues with Asian-American musicians finding success in the U.S.

While not necessarily accusing American culture of discrimination, it is important to note the limited number of Asian Americans in the mainstream music industry, for whom neither English nor lack of knowledge of the culture should be a problem.

So in our upcoming posts, we will be exploring whether the Wonder Girls will make in the U..S. and why Boris is pigeonholed as Japanese rock!

Operation Hot News, or Making the News Friends-Only

"My training tells me... that this is going to be a hot mess." (screenshot from Arrested Development from the-op.com)

"My training tells me... that this is going to be a hot mess." (screenshot from Arrested Development from the-op.com)

The newspaper industry is having severe problems, but is changing copyright law the way to fix things?

Richard Posner, highly regarded intellectual property scholar and Federal judge, suggested a drastic change recently:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

But while many others have discussed this proposal, a culturally valued way of solving the issue may be available — if the problem in search of a solution is indeed the problem of free riders through aggregation: Citation! and more generally, Attribution!

Presently, in U.S. copyright law, those who reuse copyrighted (and public domain) materials have no responsibility to attribute the works to the author. However, in countries that include moral rights as part of the intellectual property right, attribution is required. And even Creative Commons, which once had attribution as an option, now includes attribution in all of its licenses.

Traditionally, journalists have not always cited back to the original source, so this would require a change in style guides and editorial standards. But if what needs to be curtailed is “free riding” — then ownership over the news isn’t going to solve the issue.

But what about the “hot news” doctrine? Based on this doctrine, AP News recently settled a case with an online news aggregator (for law-talking people, the motion to dismiss decision is found at AP v. All Headline News Corp., 608 F. Supp. 2d 454 (S.D. N.Y. 2009). So should everyone that quotes news be concerned that the news is now locked away? This misappropriation claim is state-specific. For example, in New York, this claim only applies where all five  factors exist:

  • information is generated or gathered at a cost
  • the information is time-sensitive
  • the use of the information by someone else constitutes free-riding on the generator/gatherers’ efforts
  • the user of the already gathered information is in direct competition with a product or service offered by the gatherer
  • the ability of other parties to free-ride on the efforts of the gatherer or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. (quoted/paraphrased from NBA v. Motorola, 105 F.3d 841 (Second Circuit, 1997)

Changing the standard towards more citation and attribution will help the public understand where news is coming from.

After all, if everyone needs to cite who broke the story — yet continues to be able to use the information from that story, it would allow for, hmm, news reporting, to continue. The idea that the first-on-the-scene would be able to prevent others from being able to expand, develop, or critique the news would complete the destruction of the Fourth Estate, rather than saving it!