About this Author
Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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The Importance Of ... Law and IT.

Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T

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July 11, 2005

July 04, 2005

July 01, 2005

What happens when we become the media?

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Posted by JD Lasica

This is my last guest post here as part of the Blogger Book Tour I'm taking part in for Darknet. (Looks like a scorching, bbq-friendly holiday weekend dead ahead here in the SF Bay Area. Enjoy, folks!)

I'll leave with an observation about the copyfight movement. When I first began conducting research for Darknet three years ago this month, it struck me that issues like the DMCA, perpetual copyright extensions, infringement, inducement, illegal art and all the rest were known to only a very, very small segment of the online community.

But that's beginning to change, as I've noticed in my trips to different parts of the country with different kinds of crowds. It's changing not because of a mass education program or a sudden upsurge in public interest in copyright and the law. Rather, it's happening at a more fundamental level. We're seeing a sea change in how people are interacting with media.

Last weekend's Gnomedex conference in Seattle was on the one hand a total geek-out. But on the other hand, this crowd of early adopters was telling in how media-savvy they were: not only were 90 percent of the 400 attendees sitting in front of laptops, but there was also an ocean of digital cameras, camera phones, camcorders, PDAs, you name it. As Adam Curry noted in his keynote, "We are the media." There's no doubt about that now.

The consequences of that for public discourse loom large. That's why, as I wrote my book, I began focusing less on copyright law or the current bills before Congress and more on the long-term outlook for media culture.

The future of television is not about interactive commands that let you buy Jennifer Aniston's sweater. It's about putting a blasting cap to big media's strangehold on our nightly viewing habits by opening up the television experience to the multitude of niche media that ordinary citizens are beginning to create.

The future of movies is not about digital delivery of Hollywood entertainment at the multiplex. It's about instant access to Hollywood classics, new releases, indie fare and grassroots films, at any time, on any device.

The future of music is not about finding a silver-bullet DRM solution for secure delivery of megastar content. It's about building new platforms for recommending and filtering thousands of new voices and creative talents that would never make it through the record labels' sausage factory.

As the cost of the tools of media creativity continue to plummet and ease of use increases, millions more of us will begin taking part in the personal media revolution. And when that happens, as it inevitably will, the laws and structures built for the analog era -- such as the DMCA's provisions to prop up the business model of today's music industry -- will begin to totter, and then topple.

When we're all global publishers, the inequities of today's copyright regime will become plain to all. Then, we will want to access our musical and visual heritage and build on top of our culture. Then, digital innovation will begin to truly flourish. Then, as Ernest writes below, we will finally be able to realize the limitless possibilties of creative culture.

Comments (0) + TrackBacks (0) | Category: Culture

June 25, 2005

June 24, 2005

Window Into a Virtual World

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Posted by Ernest Miller

New World Notes reports something extremely cool coming from Linden Lab: live video from Second Life, the most innovative virtual world out there (Links of the Week!: An SL Simulcast and a Movie Trailer...). Très très cool! Go to the Second Life homepage and click on the television set labeled "live video." Be prepared for loud music that I couldn't figure out how to turn off. It is, literally, a window into a virtual world. How long will it be before we hear the cry: "I Want My Second Life TV!"?

Reuben Steiger, who works on Second Life at Linden Lab, explains the reasoning behind this very amazing innovation (Video From a Virtual World).

Second Life is a 3-D virtual world that is 100% created by its 32,000 residents. The challenge this presents us at Linden Lab is that all the action that takes place in Second Life is very compelling; whenver we sit down and show it to someone, their mind is summarily blown and they very often sign up for an account. The problem is a chicken and the egg one -- showing Second Life in person isn't scalable and screenshots just don't do it justice. You really need to see avatars flying around, building amazing creations, chatting with eachother in order to get it. The energy of that experience is what sells Second Life -- the raw, unedited magic, but until recently we couldn't bottle the magic.
He says this is profound. It is. Read the whole thing.

When are we going to get a "Best of Video," Reuben? How long do you think it will take before members of Second Life demand the right to broadcast out on their own? Will Cory Doctorow's book signing be carried on Second Life TV? I can't wait to see what happens with this.

Very exciting, innovative stuff.

Comments (2) + TrackBacks (0) | Category: Culture | Games | Internet | Machinima

June 23, 2005

June 20, 2005

Free the David

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Posted by Ernest Miller

At the beginning of the 1800s, the Elgin Marbles were removed from Greece for Britain. The outrage over this cultural theft continues.

"The request for the restitution of the Parthenon Marbles is not made by the Greek government in the name of the Greek nation or of Greek history. It is made in the name of the cultural heritage of the world and with the voice of the mutilated monument itself, that cries out for its marbles to be returned."
Evangelos Venizelos, Greek Minister of Culture
Today we face a similar theft of our cultural heritage.

The coverstory of the June 2005 edition of Communications of the Association for Computing Machinery deals with the difficult question of DRM for 3D images (Protecting 3D Graphics Content). In particular, the authors, David Koller and Mark Levoy, are concerned with preventing "piracy" of hi-resolution 3D models of cultural heritage works such as Michelangelo's David.

For example, our Stanford Digital Michelangelo Project has developed a high-resolution digital archive of 10 of Michelangelo's large statues, including the David. These statues represent the artistic patrimony of Italy's cultural institutions, and our contract with the Italian authorities permits distribution of the 3D models only to established scholars for noncommercial use. Though everyone involved would like the models to be available for any constructive purpose, the digital 3D model of the David would quickly be pirated if it were distributed without protection; simulated marble replicas would be manufactured outside the provisions of the parties authorizing creation of the model.

Digital archives of archaeological artifacts are another example of cultural heritage 3D models that could require piracy protection. Curators of such artifact collections increasingly turn to 3D digitization as a way to preserve and widen scholarly use of their holdings, but they often want strict control over the manner of that use of the 3D data and to guard against theft. An example of such a collection is our Stanford Digital Forma Urbis Project ( we've undertaken with Italian archaeological officials to digitize more than a thousand marble fragments of an ancient Roman map and make them publically available through a Web-based database—provided the 3D models have adequate protection. [sidebar, footnotes omitted]

Piracy!? Theft!? I do not blame the authors of the paper, who are forced to agree with the relevant authorities in order to gain access to the works in the first place (and it is better that the works are scanned than not at all). I do blame the cultural authorities who dare to claim a gatekeeper function to the digital reproductions of these works that are the cultural heritage of the world.

These works are not "owned" by their representative cultural institutions, but held in trust for all mankind: a position of responsibility with a duty to preserve our common cultural heritage.

A secondary duty is to provide open access to these works, consistent with the duty to preserve. It is this right of access that these claims of "piracy" and "theft" abrogate.

When digital scans can provide everything but physical access, the true pirates and thieves are those who would deny such access. They may do so out of a misguided belief that they require such control in order to fund themselves, but this only means that they are essentially holding access to our cultural heritage hostage.

Elgin's justification for removing the Parthenon Marbles was to preserve them. Those who would use the same arguments to justify preventing open access to digital reproductions of our common cultural heritage are not much better.

See also, DocBug, Owning David.

Comments (1) + TrackBacks (0) | Category: Copyright | Culture

June 19, 2005

June 12, 2005

June 11, 2005

June 08, 2005

June 06, 2005

The Case Against the Luddites

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Posted by Ernest Miller

Carson Bailey, LLC considers the continued improvement of audio recording technology and wonders whether it is killing music diversity (A Case for Luddites?).

I've been arguing for a while that the free culture debate has had the unfortunate side-effect of reinforcing a dominant view of music as movable goods and away from music as a performative event. Today, when we talk about music, we mean the stuff on the shelves at Best Buy. It's a post-modern world and recordings are no longer second cousins to the live event but the real deal:
Au contraire, Mr. CarsonBailey, LLC. It is the demands of the recording industry, of the capitalist impulse (not that there is anything wrong with that) to sell objects that has turned up the heat on the concept of music as movable and marketable good.

It is strange to blame new technology for reinforcing this paradigm for music, when it is the struggles of the existing purveyors of the paradigm who press it even further. It is particularly odd to blame new technology, when it is these technologies that are on the verge of undermining the old paradigm.

Podcasts, playlists, music sharing are all means by which music becomes more of an experience once again. People will not long accept "shuffle" as the dominant means through which to experience music. They'll demand more from playlists then simply one track after another. The playlist will create the experience. Podcasts will educate the listener, engage them in the "ennobling discipline of learning music". Music will no longer be restricted to the single, perfect recording but we will learn to seek alternate mixes, mashups, live takes that will return music to its diverse and experiential roots.

The luddites are the recording industry. They are the ones who avoid answering the question, "why are we here in the first place?"

Comments (0) + TrackBacks (0) | Category: Culture

June 02, 2005

June 01, 2005

May 30, 2005

May 29, 2005

Maverick Movie Distribution

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Posted by Ernest Miller

I may not always agree with Mark Cuban, but damn he's innovative and willing to take real risks to shake up the hollywood-industrial-complex. The latest on his blog, Blog Maverick - natch, is about his plan to radically alter the traditional release window format for motion pictures (Movies and Theaters - Let’s Make the Customer King and Make More Money). His proposal?

  1. Release movies in all available formats (theater, PPV, DVD, etc.) simultaneously.
  2. Better price the value of going to a theater. He proposes selling DVDs on release day for $39.95, although you could get a refund of the ticket price if you see the movie in a theater. The price for the DVD would drop over time (though you would still be able to get a refund for the ticket stub).
  3. Share some of the revenue on the DVDs with the theater owners. Theater distribution is mostly DVD promotion nowadays, why not give the theater owners a small cut?
His post has more details, of course. Read the whole thing, but the idea is quite interesting. I have no idea whether it would actually work, but I can certainly imagine a number of movies that I might see in the theater, simply to get the DVD on release day at a discount. Basically, this model seems to turn the theater experience into another DVD "extra." Which isn't that bad an idea, since the theater is more about the experience than the content.

If it does work, it is likely to significantly change the economics of movie production, and thus, culture, just as the rise of the DVD has made a difference in the sort of movies we see today.

Of course, none of the major theater chains is interested in this concept; they seem adverse to experimenting in any way that might move them from the traditional models despite the ever-increasing competition from alternate forms of entertainment. See, the Washington Post, Simultaneous Movie, Video Plan Irks Theater Owners.

So, Cuban is using his vertically integrated businesses to give this idea a try: 2929 Entertainment, a movie and finance production company; Landmark Theatres, an art house movie chain; and, HDNet, a high-def television network.

We will work with theater ownership groups, retailers and rental outlets who want to try this experiment to develop programs that expand the pie and create more cash flow for everyone.

I’m sure mistakes will be made along the way. I’m sure that there will be surprises. I’m sure we will have to do quite a bit of adjusting to make the program a win win for all involved.

So what?

If it works, everyone, particularly consumers benefit.

If it doesn’t, everyone calls me a dumbass, and we go back to doing it the way it was always done.

I can handle that.


Comments (0) + TrackBacks (0) | Category: Culture

May 28, 2005

May 27, 2005

Audio Museum Annotation

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Posted by Ernest Miller

The NY Times writes about a couple of groups that are creating downloadable audio tours for museums, Art Mobs and Wooster Collective (With Irreverence and an iPod, Recreating the Museum Tour).

The creators of this guide, David Gilbert, a professor of communication at Marymount Manhattan College, and a group of his students, describe it on their Web site as a way to "hack the gallery experience" or "remix MoMa," which they do with a distinctly collegiate blend of irony, pop music and heavy breathing. It is one of the newest adaptations in the world of podcasting - downloading radio shows, music and kitchen-sink audio to an MP3 player.
Very cool, but also a bit premature, I think. First, why is it a podcast? That's nice and all, but if you want to provide museum audio tours, probably the best primary way to distribute them would be through downloads, not podcasts. Hey, I'm obviously a fan of podcasts, but they're not the solution for everything. But it sure sounds hip, doesn't it?

Second, there is a most definite need for better interfaces for these sorts of projects. One real nice thing about existing museum audio tours is that they include some sort of numbering system so that it is easy to listen to different audio in a non-sequential order. That doesn't seem particularly likely for iPods, but perhaps some sort of metadata convention could be considered, perhaps one that museums can sign onto (although it would cut down into their audio tour revenues, it would increase their educational mission accomplishment).

Third ... it is pretty darn cool. Think I'll start my own.

Fourth, check out this earlier post of mine: GPS-Guided Audio Tours Launched in Montgomery, AL

via Scripting News

Comments (0) + TrackBacks (0) | Category: Broadcatching/Podcasting | Culture

The Opening of the Frontier

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Posted by Ernest Miller

Ben Compaine, author of Who Owns the Media?, analogizes citizens media to the frontier, as in Frederick Jackson Turner's The Frontier In American History (Peercasting as the New Western Frontier).

[I]n 1893 [Turner] presented his view that the key component to the unique American character of democracy was the settlement of the American West. That is, the availability of vast stretches of free land away from the initial settlements of the East Coast provided a safety value for those who were dissatisfied with their circumstances. The seemingly endless western frontier offered anyone an opportunity to acquire a farm and become an independent member of society. Free land thus tended to relieve poverty in the Eastern cities while on the frontier it fostered greater economic equality.

What does this have to do with the media? Here’s what: Though it may be a tad premature, in the equally unlimited expanses of information available through the Internet and its related ecosystem I see the makings of a similar safety value for expression and communication. Today it is Blogs, Live365 streaming radio and Podcasts. Tomorrow it is likely to be the video version of streaming radio and Vodcasting [PDF]. Better than a soapbox at Hyde Park Corner, reaching further than leaflets handed out in Times Square, more user-controlled than letters to the editor, “peercasting” may be for the Information Age what free land was for the late Agricultural/early Industrial Age....

Most Americans did not head West, though all knew that they could. The free land of the American West enabled those who were most motivated and most dissatisfied with the opportunities where they were to have hope. They did not see themselves as being stuck. Not every city slicker who headed West prospered. But it was the opportunity that helped shape them and the spirit of this country for over two centuries. And today’s dissatified or motivated knew that, for the first time, they too will be heard.

Blogging and podding and vodding or whatever else these formats might be called should not be viewed as a veneer or a Potemkin Village of phantom access to the world stage. The move to the Western frontier was real. Similarly this digital outlet that gives voice to the leafleteer, corner orator or anyone with a point of view or a story to be told is real and meaningful. We saw in Howard Dean’s meteoric rise the power of the Internet is getting the word out and in raising money. It happened for the most part under the radar of the mainstream media.

In the next decades peercasting will be become the norm to one degree or another. It will not replace mass media but will add a significant dimension to what and how the media is viewed. And, I believe, peercasting will have an overall positive effect on the American -- and no reason why not the rest of the world’s – experience with the expanded boundaries of this new frontier. I think that’s how Frederick Jackson Turner would describe it.


I've copied a significant chunk of Compaine's posting (go read the rest!) because I think he has really hit on something important. There is really a lot going on here, just as there was in Turner's original frontier thesis.

We've often heard the internet analogized to the Wild West, but I've never really liked the metaphor of place. In many ways, I think it is misleading. Here, I believe, is the better metaphor: frontier. A frontier isn't a place, it is a process. Ever-changing, ever-growing, never tamed, the frontier is always just at the edge of "civilization". You can't pin down the frontier because as soon as you do, it has moved on.

The American frontier shaped people and institutions; it formulated a unique American character. I think citizens media may do something similar, though this time it won't be as restricted geographically. What changes, if any, might this new frontier have on the American character? How might the concept of "frontier" impact other nations?

If the internet is a frontier, it is an incredibly fast moving one. Where parts of the American frontier took years to settle, internet frontiers are settled much quicker. What effect does this have on the frontier thesis?

By the time Turner wrote his famous thesis, the frontier had officially closed. Will an electronic frontier close? How might we seek to prevent it?

Does the open source movement also play a role in this frontier? I would think so, yes.

Lots of questions, I know, but I now have a lot to think about and chew over. I leave this post with a passage Turner quoted from Peck's New Guide to the West:

Generally, in all the western settlements, three classes, like the waves of the ocean, have rolled one after the other. First comes the pioneer, who depends for the subsistence of his family chiefly upon the natural growth of vegetation, called the "range," and the proceeds of hunting. His implements of agriculture are rude, chiefly of his own make, and his efforts directed mainly to a crop of corn and a "truck patch." The last is a rude garden for growing cabbage, beans, corn for roasting ears, cucumbers, and potatoes. A log cabin, and, occasionally, a stable and corn-crib, and a field of a dozen acres, the timber girdled or "deadened," and fenced, are enough for his occupancy. It is quite immaterial whether he ever becomes the owner of the soil. He is the occupant for the time being, pays no rent, and feels as independent as the " lord of the manor." With a horse, cow, and one or two breeders of swine, he strikes into the woods with his family, and becomes the founder of a new county, or perhaps state. He builds his cabin, gathers around him a few other families of similar tastes and habits, and occupies till the range is somewhat subdued, and hunting a little precarious, or, which is more frequently the case, till the neighbors crowd around, roads, bridges, and fields annoy him, and he lacks elbow room. The preëmption law enables him to dispose of his cabin and cornfield to the next class of emigrants; and, to employ his own figures, he "breaks for the high timber," "clears out for the New Purchase," or migrates to Arkansas or Texas, to work the same process over.

The next class of emigrants purchase the lands, add field to field, clear out the roads, throw rough bridges over the streams, put up hewn log houses with glass windows and brick or stone chimneys, occasionally plant orchards, build mills, school-houses, court-houses, etc., and exhibit the picture and forms of plain, frugal, civilized life.

Another wave rolls on. The men of capital and enterprise come. The settler is ready to sell out and take the advantage of the rise in property, push farther into the interior and become, himself, a man of capital and enterprise in turn. The small village rises to a spacious town or city; substantial edifices of brick, extensive fields, orchards, gardens, colleges, and churches are seen. Broad-cloths, silks, leghorns, crepes, and all the refinements, luxuries, elegancies, frivolities, and fashions are in vogue. Thus wave after wave is rolling westward; the real Eldorado is still farther on.

A portion of the two first classes remain stationary amidst the general movement, improve their habits and condition, and rise in the scale of society.


Comments (10) + TrackBacks (0) | Category: Blogging and Journalism | Broadcatching/Podcasting | Culture | Freedom of Expression | Internet | Journalism | Network Law

May 26, 2005

May 25, 2005

May 24, 2005

Baudrillard and the Virtual Cow

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Posted by Ernest Miller

Eric Goldman points to an interesting and amusing paper on the real world impact of virtual worlds (Compartmentalization v. Immersion in Virtual Worlds). The paper discusses whether a virtual cow farm game ( "cow country" [French]), developed for a French agricultural region "to explain the complexities of agriculture while creating a new image of farming," succeeded in changing citizens' attitudes towards farming (conclusion: only limited success, if that).

Read the 10-page paper: Can Simulation Games Influence Citizen's Attitude and Behaviour Vis-a-Vis Online Public Debate? [PDF]

Although more than 320,000 people visit the website daily to care for their virtual cow, it has not changed their attitudes toward actual cows much (though cow merchandise has done well). For some the game was a nostalgia trip to the simple farm life. Others viewed the game as just another fiction, like Babe. The concern however, was a creeping Disneylandization of consumption:

"When I go to a market, I am in 'real life' so I buy milk and yoghurt without thinking about my cow. Breeding games stay at home in my PC". "For me, my virtual breeding never mix with my real life. Thus, when choosing butter, milk or whatever, I absolutely do not think about my virtual cow. I may think of it when going to the countryside, if I see a cow or a Massey-Fergusson tractor, I'd smile and say 'I've the same at home!' but usually there's no crossover."

..."However, I am a big plush fan, and it's different! When I am in a store in the toy department, I have to restrain myself from running to the plush and check for cows or pigs. Plush cows are quite easy to find, for pigs it's more difficult."

Of course, technical problems in the game caused some serious negative feedback:
My opinion on this institution [the Regional Council] has really changed. I started with a very happy and positive image. Now it makes me sick! This institution has manipulated us all, as politicians manipulate everybody. If I were French and coming from this region, I'd be ashamed of my local officials!"
Well worth reading.

Comments (0) + TrackBacks (0) | Category: Culture | Games

Building the Bottom Up from the Top Down

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Posted by Ernest Miller

Prof. Michael Froomkin has published the introduction and final section of the conference draft of "Building the Bottom Up from the Top Down," a paper that he'll be giving at a seminar in Paris this weekend. As the title implies, Froomkin is looking at what top-down orgainzations, particularly governments, can do in order to stimulate bottom-up self-organization:

The government's role should be facilitative yet entirely content-neutral. Even ostensibly non-political rules such as one that limited subsidies to non-political activities should be avoided. Human time and energy is limited. thus, even if one could craft a program that had no class-based discrimination, any rule subsidizing gardening but not community organizing would inevitably cause a shift of time and energy away from politics towards the subsidized activities. If, as Habermas persuasively argues, public engagement is already too weak then it makes no sense to discriminate against it.

Thus, the state's ideal role is primarily in creating a climate in which groups can form, and resources that they can use to organize themselves, govern themselves, and achieve their aims. Given the speed at which communities such as Slashdot (with more than half a million members) and the so-called blogisphere are forming, much may be achievable without much in the way of direct state intervention. There are, nonetheless, some areas where government action would be helpful and appropriate.

Froomkin seeks comments here: Building the Bottom Up from the Top Down.

Read the whole thing.

Comments (0) + TrackBacks (0) | Category: Culture | Freedom of Expression | Internet | Network Law | Open Access

May 23, 2005

Highly Recommended: Tesseract: The Film

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Posted by Ernest Miller

Geoffrey Alan Rhodes is an instructor and graduate student at the State University of New York at Buffalo and filmmaker. His latest work is tesseract, a 20 minute experimental film telling the story of Eadweard Muybridge's obsession with time and its image at the turn of the century as well as his murder of his wife's lover. Tesseract has been awarded the prize for Best Photography at the Jutro Filmu international film festival in Warsaw, Poland.

It's a heck of a film and really manages, I think, to express how revolutionary Muybridge's work is - not something easy to do.

I'm not blogging about this film simply because it is a good film, but because it demonstrates what it is like to be on the cusp of a new technology and way of viewing the world. To see the potentials of the future and reach beyond what exists at present for what might be. Seeing Muybridge's work is like reading science fiction written before the invention of movies. However, Muybridge was not simply some futurist who anticipated a new medium, but someone who brought us an entirely new way of looking at the world, someone who has shaped the very way we experience our lives.

I think the title tesseract, a hypercube, is incredibly apt. As in the "romance of many dimentions," Flatland, we often do not realize what it is that we cannot see. Muybridge helped us to see in a new dimension. We are still puzzling out some of the implications.

I often wonder who are our Muybridges are today.

Watch it.

via DocBug (who is the brother of Rhodes - congrats!)

Comments (0) + TrackBacks (0) | Category: Culture

May 19, 2005

May 18, 2005

May 17, 2005

JD Lasica's Darknet: The Mini-Book

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Posted by Ernest Miller

JD Lasica has just published Darknet and will be publishing stories and analysis from the book in weekly installments. Unfortunately, we won't be getting the entire book online, but we will get a weekly sample. There are two posts so far:

Darknet Mini-Book: Introduction

Darknet is not another book about the excesses of copyright law -- not really. It's a look at the future of future of movies, television, computing, music, games, art and more -- and the choice we face as a society....

Now, about the title. Throughout this book, “Darknets” simply refer to underground or private networks where people trade files and communicate anonymously. But I want to suggest two deeper meanings as well.

First, the Darknet is a metaphor for the hidden-away matter of the Web—the burgeoning pool of weblogs, independent sites, and grassroots media well outside the limelight of Big Media. Collectively, this “long tail,” as Wired editor-in-chief Chris Anderson put it, far outweighs all the bright material of the commercial Web sites with their seemingly impressive vast swaths of traffic. The dark tail is where the hope and promise of the Web resides.

Second, Darknet serves as a warning about a world where digital media become locked down, a future where the network serves not the user but the interests of Hollywood and the record industry. More and more activity on the open Internet will be pushed into the underground if current anti-innovation trends continue.

Darknet Mini-Book: The Teenage Filmmakers

The best darn fan film you'll never see.

Read it all.

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | News

May 16, 2005

May 15, 2005

May 14, 2005

May 13, 2005

December 16, 2004

Who'd Buy the Public Domain for a Dollar?

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Posted by Ernest Miller

Apparently a lot of bargain shoppers, according to USA Today (Hot off the shelf: DVDs for a dollar):

According to Videoscan, the national point-of-sale tracking service, last week, 19 of the 50 top-selling DVDs were dollar DVDs from Genius Products, a leading supplier of budget videos. Compilation discs of Popeye cartoons and The Lucy Show episodes came in at No. 17 and No. 18, right below the Star Wars Trilogy and Dawn of the Dead [I suppose they mean the recent remake, not the original, which is also in the public domain].
And trip on this:
"We get letters all the time from people, thanking us for making this great stuff available at such a low price," says Howard Balaban of Genius Products. "It's mind-boggling."
Gosh, I wonder if there would be a market to have these works delivered straight to your TiVo via a BitTorrent hybrid?
Most dollar-DVD titles are in the public domain, which means the copyright has expired and has not been renewed. That makes them cheap to put on DVD.

The dollar-DVD market arrives after a steady decline in DVD prices across the board. Hot new theatrical releases routinely sell for less than $15 their first week of release, about half what they were going for when the format was launched in 1997. The drop-in prices for older films is even more pronounced: Wal-Mart has huge "dump bins" in its high-traffic aisles filled with DVDs selling for $5.88.

Given the cost of printing the box, stamping the DVD and shipping them all over the US, is there really that much of a price difference between public domain and the older films in the "dump bins"? Searching through those bins for something you are interested in takes time. How much would people pay to have them readily available at the press of a button on the remote?

Comments (5) + TrackBacks (0) | Category: Culture

July 31, 2004

JibJab Files Lawsuit for Right to Distribute Parody?

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Posted by Ernest Miller

Bloomberg News is reporting that JibJab and EFF have actually filed a lawsuit to protect their right to distribute the parody (JibJab defends use of 'This Land'):

"This Land" was made for you and me, JibJab Media says in a lawsuit seeking the right to use the Woody Guthrie song This Land Is Your Land in an online parody of President Bush and Sen. John Kerry....JibJab, which is run by brothers Gregg and Evan Spiridellis, says in its suit, filed Thursday in San Francisco federal court, that the video is a parody and doesn't infringe on Ludlow Music's copyrights.
There is nothing on EFF's website that I could find and this is the only report of a lawsuit I've seen. I'm trying to confirm this report with EFF.

I've received anonymous confirmation that a lawsuit was filed (JibJab Does File Lawsuit - "This Land" a Fair Use Parody)

UPDATE 2 1350 PT
Seth Finkelstein has the court electronic database information (JibJab vs. Ludlow - Court Info).

Other JibJab News

The Dallas Morning News (annoying reg. req.) (Hits and Misses - July 31, 2004):

If this is danger, bring it on

The Richmond Organization is alleging that an online cartoon parodying the presidential race is causing "huge" damage to its copyright of Woody Guthrie's folk classic "This Land Is Your Land." But what it's really doing is adding some much-needed levity to a heated political season. The owners of the copyright are asking to stop distributing the cartoon that features John Kerry and George Bush as cartoon characters singing new words to the patriotic ditty. As obvious political satire, it's surely protected free speech. It's irreverent. It's funny. It jabs both sides. The true danger would be a lack of good satire in a presidential election year. [emphasis in original]

With regard to JibJab the Blawg Channel points to Stanford's Copyright & Fair Use Center for more information on the issues involved (Research Site of the Day).

USA Today had an odd column about the JibJab phenomenon. The article doesn't discuss the copyright issues, but is bizarre enough that I thought I'd point it out (This Net was made for you and me and the rest of the world).

I've now added a "JibJab Category" to my lists of categories to make following the story easier.

Comments (2) + TrackBacks (0) | Category: Copyright | Culture | JibJab

July 30, 2004

JibJabapalooza 2

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Posted by Ernest Miller

Woody_guthrie.gifImage via Wikipedia and Lucas Gonze

Commentary On Guthrie Borrowing the Underlying Tune

A number of commentators have noted the importance for fair use analysis of Guthrie having apparently borrowed the underlying tune for This Land is Your Land from an earlier tune. The earliest mention of this I found was in the comments here (Comments: Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads):

On a different tack, the consensus among folkies is that Woody Guthrie himself put his own "This Land" words to an existing tune, "Little Darlin' Pal of Mine". That tune was copyright by A.P. Carter and/or Ralph Peer, both of whom were notorious for recording and copyrighting materials which were already being sung by others. One source cites the melody going back to an older tune, a Baptist Hymn "Oh My Lovin' Brother".
The author of the comment is John Dowell who blogs for Macromedia, developers of Flash. See also, Dowell's post on this subject (JibJab update).

Compare clips of the two songs:

Guthrie's This Land is Your Land [MP3] - Courtesy of the University of Virginia Library's Lift Every Voice exhibit.
Carter's When the World's on Fire [MP3] - Courtesy of EFF.

Martin Schwimmer notes, "So now there are two widely-known clouds on the title that weren't widely-known last week" and asks, "What alternatives were available to the copyright owner?" (All Jib Jab, All The Time). Yep. Ooops.

Doc Bug wonders if strict enforcement of copyright would have kept Guthrie from recording "This Land is Your Land" in the first place (More JibJab, and thinking about deregulation). Answer: Probably. Maybe we need to change the law then, according to Doc Bug:

As Lessig points out, we citizens have the right to change the law. Copyright is a government regulation on the marketplace of ideas, one that restricts some speech in the hope that it will encourage others to produce more. We're all fully aware that the Net has radically shifted how the marketplace of ideas now works and will continue to work in the future. Isn't it about time we reexamined whether this government regulation still makes sense?

Other, brief commentary on this issue:
Reason's Hit and Run: This Song Was Their Song
Eugene Volokh: This Song Is Whose Song?

General Commentary on the Controversy

Martin Schwimmer has more comments on having noted the parody of Guthrie in JibJab's version (Copyright: Blawg Channel Gets The Joke):

Now, before you dismiss the fact that I saw the parody clearly merely because I practice copyright and trademark law and do this stuff all day, please note that as early as eighth grade, Mrs. Jacobson, our English teacher, lauded my ability to spot metaphors and the like in the assigned reading (a comparative advantage accruing to me by being the only person wonky enough to do the reading).

Be that as it may, as the Nader/Priceless court says, perceiving the parody clearly (or readily) is not the critical factor - parody can be subtle.

Andrew Raff has some very nice analysis about post-hoc rationalization and parody (Post-hoc Parody).

Free Culture Blog is worried what would happen if the parody isn't a fair use (Some troubling implications about the Jibjab case).

Finally, Technician Online claims that, in regard to the controversy, Guthrie would laugh his guitar off.

Previous Coverage

Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads
EFF Defends JibJab Animation as Parody

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | JibJab

July 29, 2004


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Posted by Ernest Miller

The JibJab controversy continues unabated. Here are a slew of links.

First, listen to 45 seconds of Guthrie's original, courtesy of the University of Virginia Library's Lift Every Voice exhibit (This Land is Your Land [MP3]).

Original "The Importance Of..." coverage:
Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads
EFF Defends JibJab Animation as Parody

Chris Cohen is having doubts, somewhat, about his original position that the flash animation was satire and not parody (JibJab video: am I to be labeled a flip-flopper?).

Reason publishes an essay favoring fair use and citing both me and Cohen (Jabbing JibJab).

Copyfight's Donna Wentworth looks at the underlying copyright on the music used in This Land is Your Land (Oops - I Seem To Be Standing On Your Shoulders).

Eugene Volokh must be getting a lot of email about this issue. We disagree, but he makes good points. Here are a few of his most recent postings:

De Novo weighs in that the use is fair (This Use is Fair Use).

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | JibJab

EFF Defends JibJab Animation as Parody

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Posted by Ernest Miller

WIRED writes a story on the JibJab controversy, looking fairly closely at the claims for and against fair use (Sue You: This Song Is Our Song). See also, this shorter Newsday article ('This Land' was made for comedy).

For a much more detailed analysis of the legal analysis, however, you can (and should) read the dueling letters between the legal representatives for the This Land is Your Land copyright holders and EFF, which is officially representing JibJab.

Ludlow's 4-page Cease and Desist Letter to JibJab's Lawyer: Re: JibJab Media Unauthorized Use of 'This Land is Your Land' [PDF]

Mr. Guthrie's musical composition is an iconic portrait of the beauty of the American landscape and the disenfranchisement of the underclass. As both a populist anthem and an ironic metaphor, "This Land Belongs to You and Me" contrasts a view of the "sparkling sands of her diamond deserts" and the sun shining on "wheat fields waving" with the city's working class in the "shadow of the steeple near the relief office" who grumble and wonder if such natural treasures embody their own experiece with this country. The Unauthorized Movie does not comment on those themes. Instead, Jib Jab merely uses Mr. Guthrie's lyrics and music as a convenient vehicle to caricature the partisan climate of the current presidential campaign. Although the combination of Mr. Guthrie's music with Jib Jab's script and animation is very funny, the caricaturing of the candidate's sound-byte attacks on each other does not transform the work into a parody of Mr. Guthrie's work.
EFF's 4-page Response to the C&D: Re: Jib Jab Media, Inc. and Ludlow Music, Inc. [PDF]
While your view of Guthrie's "This Land is Your Land" as being predominantly about "the beauty of the American landscape" and "the disenfranchisement of the underclass" is interesting, most Americans think of the song as an iconic expression of the ideal of national unity. Jib Jab's parody addresses, among other things, the lack of national unity that characterizes our current political climate (ending with the optimistic hope that unity might be rediscovered). In short, "This Land" explores exactly the same themes as the Guthrie original, using the parodic device of contrast and juxtaposition to comment on the original. See Abilene Music v. Sony Music Entertainment, 320 F .Supp.2d 84, 90-91 (S.D.N.Y. 2003) (emphasizing the role of contrast and juxtaposition as parodic devices). The parodic comment takes on an additional dimension of irony when viewed in light of the often omitted closing stanzas of Guthrie's original.
Read both letters, they do an excellent job of summarizing current law on these issues.

Bonus: EFF cites my claim that JibJab's use clearly parodies Guthrie's work in a footnote, "It is enough that the parody here is readily and objectively perceptible, as demonstrated by the fact that a variety of commentators already perceive it clearly" (Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads).

EFF's official announcement: Update on JibJab's "This Land". via Copyfight

UPDATE 2 31 July 2004
I've added a "JibJab Category to make following this story easier.

via BoingBoing

Comments (2) + TrackBacks (0) | Category: Copyright | Culture | JibJab

July 27, 2004

Barbie on the INDUCE Act (IICA): From My Cold, Plastic Hands, Senator Hatch

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Posted by Ernest Miller

Nicholas_Bergson-Shilcock_I.jpgBarbie in a Blender is a wonderful celebration of free speech and fair use:

So when Utah artist Tom Forsythe took this photograph of Barbie in a blender as part of a series of critical fine-art Barbie photos, Mattel got pissed. So what did they do to try stop Tom's message? They decided to sue his ass....Luckily for Tom, he convinced some lawyers from the ACLU to step up to and fight his case, and after a long legal battle he was victorious. The judge in the case ruled that the lawsuit clearly ran counter to the first amendment, calling Mattel's suit "groundless and unreasonable." Not only that, but the Judge's order forces Mattel to pay Tom's $1.8 million in legal fees. National Barbie-in-a-Blender Day, July 27, is a celebration of this important defense of free speech.
Visit the exhibit, but Barbie's commentary on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) is my favorite. Photo by Nicholas Bergson Shilcock, Barbies Endorses

via Copyfight

Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | Freedom of Expression | INDUCE Act | Oddities

Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads

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Posted by Ernest Miller

Chris Cohen has been on a roll analyzing whether various derivative works are satires or parodies. The difference can mean one is legal and the other isn't under a fair use analysis. The basic rule is that a parody, which critiques the work borrowed from, is okay. Satire, which critiques something other than the work borrowed from, is not fair use. I tend to take a much broader view regarding whether something is parody (Parody of a Parody), so read on for some of my responses ...

UPDATE 3 31 July 2004
I've added a JibJab Category" to make following the story easier.

...continue reading.

Comments (7) + TrackBacks (0) | Category: Copyright | Culture | JibJab

July 25, 2004

Department of Pretentious Bullshit

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Posted by Ernest Miller

ChangeThis is a going to be (it launches mid-August) an online magazine that will publish long-form articles that make a non-partisan case about particular issues.

My normal response to such an effort would be: "Cool. More power to you. It's going to be tough; garnering attention isn't easy. However, if you publish quality material (also not easy), eventually you will grow an audience and, maybe, even a community (at least that's what I tell my ego when I spend inordinate amounts of time blogging). The New Republic had to start somewhere too. Good luck."

My actual response to this particular online magazine is "what a bunch of pretentious, condescending idiots." You see, this isn't simply an online magazine. Oh no, that would be too mundane. It turns out that all other media is a wasteland, but a handful of interns have figured out how to provide the public with the rich, deep, fact-based lectures that we, the people, are so desperately denied.

The initial "manifesto" (article is such a mundane word) claims that (ChangeThis Manifesto):

Sometimes it seems as though our disagreements over everything—from politics to business to the designated hitter rule—are more serious and more divisive than ever before. People are making emotional, knee-jerk decisions, then standing by them, sometimes fighting to the death to defend their position.
To the death! Somehow I must have missed the bloodshed over the designated hitter rule. Anyway, who knew that the solution to this rising trend of violence-laden arguments was an online magazine that publishes landscape-formatted PDFs? With pull-quotes!

I'd fisk the thing, but why bother? Read the initial manifesto yourself. It's only 9 pages with lots (and lots) of off-white whitespace. Through it you will: learn how the internet has reduced your ability to make rational decisions; be made aware that human beings are susceptible to charismatic leadership; have explained that a persuasive argument can change minds; and, most importantly, be enlightened about the fact that the problems in modern discourse are the media's fault. Heck, it practically fisks itself.

For more fun with the "manifesto," feel free to check out Clay Shirky's pre-launch vivisection (Change This) or Jeff Jarvis pointing out that ChangeThis seems determined to change media to an older model (Change for the sake of ChangeThis). Oh, yeah, ChangeThis has a blog that posts the newest entries at the bottom of the page (Read and Pass).

In related pretentious news, the Washington Post (annoying reg. req.) Outlook section has a yet another article bemoaning the fact that Americans are not reading "serious" literature and instead waste our time with television, movies, and trashy bestsellers (As I Live And Read). The author, a book reviewer, points his finger at youth: "Who among the young aspires to be cultivated and learned, which takes discipline, rather than breezily provocative, wise-crackingly 'edgy'?"

Strangely, however, the author engages in some breezily provocative wise-cracking himself. Great books leave us "shaken and stirred." Like James Bond's favorite vodka martini? The relationship between book and reader is too "often a wrestling match. No pain, no gain." Wraslin' - now that's sumthin' Amuricans'll unnerstand. And poetry is like a Spaghetti Western hero: "poetry stands quietly in the dusty street, as cool and self-contained as a lone gunfighter with his serape flapping in the wind." Make my day.

Here's an idea. Instead of telling us what a tragedy it is that we're not reading good literature. Why don't you pick a piece of good literature and explain why we should engage with it. This essay is about as useful and relevant to people reading good literature as those leatherbound classics you can buy in bulk.

Comments (2) + TrackBacks (0) | Category: Blogging and Journalism | Culture

July 22, 2004

Hackers, Lawyers, Society and the INDUCE Act (IICA)

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Posted by Ernest Miller

Jeff Jarvis has a very good post this morning about shifting cultural mores (and/or memes?) (A programmer's society replaces a lawyer's society). As he drops his son off at programming camp, he postulates that we are shifting from a lawyer-centric society to a programmer-centric society. I would use the term "hacker" myself, but I think he has a very good point.

Lawyers are necessarily a suspicious breed. They live by rules. They think in terms of us vs. them. They think contention. They argue for sport. They always think they can appeal to a higher authority. They aim for victory. They are patient.

All those traits have an impact on American society -- many or most of them not good. The fact that lawyers run government is at the root of many of government's problems: Government has become all about arguing, little about serving.

But now imagine if former programmers start rising to the heights of American business and government and cultural life.

Programmers are logical. They believe in cause and effect. They believe any problem can be solved if you just find the cause. When they do battle, it's with a mistake, not a person. They live in the details. They believe in openness and transparency. They also believe in following rules but the rules of reality -- what a machine can and can't do -- over the rules man made up. They believe in planning. They, too, are patient. What else?

It's a brief post and written in generalities, but there is definitely something to the distinction between a lawyer's ethos and a hacker's ethos. I agree with Jarvis that this is mostly a good thing.

However, will the lawyers let it happen? Case in point: the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). When innovation has to be vetted by lawyers first, can the hackers' ethos thrive? I'm very worried that it cannot.

Rick Klau has some excellent comments on Jarvis' post (What if lawyers became programmers?).

Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

Comments (0) + TrackBacks (0) | Category: Culture | INDUCE Act

July 21, 2004

The Cathedral, the Bazaar and Art

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Posted by Ernest Miller

Today, Slate asks "Just how inventive can an anonymous group of people be" (Art Mobs)? "Collaboration is old hat," as the author says but, "until now it's been limited to a small handful of people, usually face to face. The Internet lets thousands of total strangers collaborate to produce a truly hivelike result" (I'm not sure about that "hivelike" adjective. Why would virtual collaboration be any more hivelike than collaboration face-to-face? How many people work together to make a movie? Is a movie "hivelike"?).

In any case, the article looks at some interesting experiments in internet-based collaborative art. Some produce pretty good results, others not. The article goes on to ask why, and one conclusion is that "Truly huge artistic collaboration on the Internet seems to work only if the gang has a well-defined objective." And this is different from face-to-face collaboration, how? Whenever you have a group of people trying to achieve a subjective goal, the more subjective it is, the more they're going to need direction.

Actually, I think we need to match means and goals. Some forms of collaboration suit certain types of art better than other types of art, whether that collaboration is face-to-face or anonymous. It would be more useful, I think, to distinguish which forms of collaboration are handled better face-to-face as opposed to anonymous collaboration and why.

Strangely, the article goes off on a tangent at the end:

One day, it's likely that an artist will discover the right mix, or some Web designer will invent an online engine that elegantly channels a million contributions into a single compelling artwork. So far, the closest we've yet come is with music, which, thanks to the influence of hip-hop, techno, and applications like GarageBand, is increasingly a cut-and-paste art form. [link in original]
But this sort of music isn't an example of massive collaboration, except in a very broad definition. It is an example of individuals remixing existing works, which isn't really collaborative in the sense the article had been talking about. However, if that is the definition of collaboration, than computing and networks have enabled all sorts of fantastic group collaboration (i.e., machinima, video mashups, game mods, etc.). Heck, blogs in general are an example of remixing.

This is an interesting article, but I'm not sure it has the right focus.

An aside: the article did bring one thought to mind. GNU/Linux as art. Eric S. Raymond famously described the process of open source vs. closed source as a distinction between The Cathedral and the Bazaar. However, though the process of development may be different, hasn't GNU/Linux become a cathedral of sorts? Like the great cathedrals of Europe, isn't Linux a cathedral of code, both functional and beautiful?

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July 19, 2004

The Morality of Code

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Posted by Ernest Miller

James Grimmelmann of LawMeme does some genetic splicing between legal philosoper Lon Fuller's The Morality of Law and Larry Lessig's Code (The Morality of Software):

Fuller states eight conditions that laws must satisfy to be worthy of being called "law;" I'll follow that organization in comparing software and law. Following Lessig, I'll only be thinking about software in its ability directly to control behavior: I'm online, and I try to do something, and either the software goes ahead and does it or doesn't do it, thereby "prohibiting" me from something I'd otherwise have chosen.
Good stuff.

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June 29, 2004

The INDUCE Act and the Right to Prepare Derivative Works

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Posted by Ernest Miller

The INDUCE Act makes it a crime to induce copyright infringement in very broad terms. Most of the commentary on the Act and what technologies, creativity and innovation it threatens have focused on two types of infringement, those of the right of reproduction (the right to make copies) and the right of public distribution. We should remember, however, that there are other exclusive rights that can be infringed. The intersection of the INDUCE Act with these other exclusive rights will create an even broader swath of technology and acts that Hollywood will have an effective veto over. Let's consider one of these other rights and the technologies that might be affected.

According to 17 USC 106, the second exclusive right is the right "to prepare derivative works based upon the copyrighted work."

Hmmm, I would imagine that it will be much easier for Hollywood to go after websites that promote fan fiction. Computer game companies that do not like modding can go after websites that teach people how to mod computer games. Websites that encourage or promote Machinima are in deep trouble. Things like remix "construction sets" would probably also be under legal threat, even if they didn't contain any unauthorized material. Certain editing technologies like the ClearPlay DVD player, which allows parents to skip offensive portions of a DVD, would certainly be more threatened than they are now. See, Liberals, Conservatives Favor Different Kinds of Censorship. Third-party annotations? Well, those are right out. Heck, it might be that a parody would be illegal because it encourages the creation of derivative satires. Anything that encourages you to change, edit, or manipulate copyrighted content would likely be forced to incorporate DRM else the technology provider be sued.

Just imagine if SCO, the company that wants to stop open source, had INDUCE in its arsenal. Linux, which never had much of a process (until recently) to ensure that submitted code was clean of adverse copyrights, would be toast. And how long before SourceForge and O'Reilly get C&D letters?

Now Hollywood might not win all these potential lawsuits, assuming the defense can afford to go all the way through trial and risk having a jury look askance at what they're doing, but how heavy will the threat of litigation weigh on those who encourage creation?

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | INDUCE Act | Machinima

May 27, 2004

Slate's Celebrity Playlist Article Misses Real Story

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Posted by Ernest Miller

Slate publishes an article on one of the most interesting aspects of Apple's iTunes and goes for the easy celebrity story instead of something really interesting (Beyoncé, Your Mix Tape Sucks).

One of the most innovative, creative and significant aspects of the transition to digital downloadable music that the music industry seems to have ignored is the critical importance of the playlist. Playlists are key to organizing, listening to and discovering new music in the digital age. They are a tool that many people can use much more efficiently to publicize their music interests, turn people on to new music and assist in providing a musical education, among other things. Apple has begun to design tools that recognize the importance of playlists. They aren't nearly as cool as Webjay, but they are trying.

So does Slate write about any of these fascinating aspects of the playlist community? Nah, they go for the easy celebrity piece and rag on the mostly weak and uninteresting celebrity playlists Apple uses as a marketing tool. Mainstream journalism is sooo impressive.

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March 24, 2004

Videogames Inspire Speedy Movie Zombies

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Posted by Ernest Miller

Slate has an interesting piece on the increasing speed of zombies in recent movies such as 28 Days Later and the recent remake Dawn of the Dead (Dead Run - How Did Movie Zombies Get So Fast?). The author traces at least some of the inspiration to fast-paced first-person zombie shooter (aka "Survival/Horror") videogames such as Resident Evil, and not just the fact that some bad movies were adaptations of the games. Games having a cultural effect on movies. Cool.

For more traditional, slow-moving walking dead, you can download for free (and legitimately) George Romero's classic Night of the Living Dead, which is in the public domain (George Romero's Night of the Living Dead in PD; on

Comments (1) + TrackBacks (0) | Category: Culture | Games

March 22, 2004

Minority Languages and Open Source

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Posted by Ernest Miller

The BBC reports that Microsoft is adding support for the Welsh language to MS Windows (Microsoft works on native tongues). It is great that Microsoft is supporting language diversity. However, this diversity is being supported at Microsoft's sufferance. Should MS decide not to support a particular language, too bad, MS won't let you have access to Windows source to make the necessary changes yourself. There is no such problem with open source. If native speakers truly want to guarantee the continued existence of their minority languages, they would do well to embrace open source and commission a translated version of Linux.

Speaking of which, when will we have a Klingon Linux of Elvish Linux?

via Marginal Revolution

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March 15, 2004

Client-Side Remixing Conundrums

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Posted by Ernest Miller

Lucas Gonze, who has added client-side remixing to his RSS+SMIL format (Analysis of RSS+Time as a playlist format) discusses the strengths and weaknesses of such client-side remixing here: Client-side remixing is sloppy. His post is in response to a couple of posts I've done on the idea of remixing "recipes": A History Palette for Music and The Grey Album - No Copying Necessary. Gonze argues, rightfully, that RSS+Time and similar such formats are not well-suited to client-side remixes:

Geeks around these parts have done many experiments with client-side remixing in SMIL, and what we found was that it works reasonably well as long as you don't need precise synchronization. If you do need precise synchronization, you'll just make yourself unhappy.
What that means for Danger Mouse and other dance-type remixers is that they will not be doable on the client side. That kind of thing requires a really tight set of operations. You have to clip out segments of a few seconds at most, then line them up with a lot of other clips. Marking a beat is a picky process with no room for sloppiness, which is exactly what HTML is not.

Mike Linksvayer agrees and provides more analysis (Client-side remixing isn’t so loopy).

Their both right. However, my vision of client-side remixing is not of the RSS+Time type, which "is to precise syncrhonization as HTML is to precise layout. If you don’t need precision, enjoy." Actually, I imagine a rather robust client that can achieve the level of precision that the remixer used to create the remixing "recipe." As I noted, my comparison is to Photoshop's History Palette:

Imagine if someone edits a photo [with Photoshop] and sends me the history palette but not the original photo (for copyright reasons). If I already have the original photo the editor worked with, I could recreate the new version from the history palette.

In the case of music, I imagine the client having something like a copy of Apple's GarageBand software. If you save the "history palette" for GarageBand and send me both the history and the original sound files used, I should be able to recreate the exact same finished product you have.

Such a thing is not yet available, but I don't see why it couldn't be. See, Dangermouse, the Jay-Z Construction Set and the Videogame Content Creation Model.

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Posted by Ernest Miller

The New York Times (reg. req.) reports on an amazing research finding - those who buy highly partisan books are likely to buy more highly partisan books! At least that is all I was able to get out of the article which hypes a rather pedestrian study (Study Finds a Nation of Polarized Readers). The article reports on a recent study by social networking guru Valdis Krebs. The study can be found here: Divided We Stand... Still. Would it kill the NY Times to include a link or URL? This study is a followup on an earlier report (Divided We Stand???) as well as a white paper on book networks (The Social Life of Books). From the study the NY Times is referring to:

From the New York Times Bestseller List, I selected political books as starting points for 'snowball sampling'. Two books are linked in the network if they were purchased by the same person -- "Customers who bought this book also bought: ". Many of the books have changed from last year but the overall pattern is the same. The pattern reveals two distinct clusters with dense internal ties. These political books are preaching to the converted. The extreme book titles on both sides reveal a focus on hate, instead of debate.

While interesting, just how surprising is this finding? First, the political books are selected from the New York Times Bestseller List. Not to knock bestseller lists, but what sort of books make it to the top? I doubt that audience-challenging, even-handed books of any complexity are likely to compete with simple-minded polemics that cater to existing prejudices.

Of course, if you are in market for buying partisan polemics, are you really interested in even-handed books? I would think it is sort of a self-selecting sample. That isn't the way Krebs looks at it though:

(Of course, it is always possible, he [Krebs] concedes, that undecided voters aren't reading political books at all, that they simply "can't stomach either side.")

My centrist political views may not be the norm, but I'm certainly not unique. I'm interested in real debate about issues, not simply confirmation of my own point of view. Consequently, I will no more spend money on Dude, Where's My Country? then on Deliver Us From Evil. Let's face it, most of these books are crap. All the rhetorical fallacies are there: straw man arguments, ad hominem attacks, and the ever-popular argumentum ad odium (argument directed to hatred), among others. Why would someone who is interested in honest debate be interested in these books? Maybe undecided voters are reading political books that, while less popular, are not partisan polemics.

Speaking of rhetorical fallacies ...

Mr. Krebs, who got similar results when he conducted the same experiment last year, calls this pattern the "echo chamber" effect: for the most part, he found, buyers of liberal books buy only other liberal books, while buyers of conservative books buy only other conservative books. This finding appears to buttress the argument made by Cass Sunstein, a law professor at the University of Chicago, in his influential study "" (Princeton University Press, 2001) that contemporary media and the Internet have abetted a culture of polarization, in which people primarily seek out points of view to which they already subscribe.

Does this study really buttress the argument of Cass Sunstein in I don't think so. Sunstein was complaining about the potential of too much personalizing of sources of information through the internet, such as a "daily me" newspaper. His concern was with new technologies, in particular, their potential for individual customization. I don't really recall Sunstein concerned about dead tree media. Now, it may be that internet polarization (even assuming such a thing) is increasing polarization in other media, but this study provides absolutely no evidence of this fact. Call me crazy, but I rather suspect that partisan political polemics through the ages have mostly appealed to partisans and were seldom purchased by the partisans on the other side of the argument. For example, I don't think that many copies of the abolitionist The Liberator sold in the antebellum South.

Unfortunately, we don't have Amazon's databases for much of our history. If similar databases do exist it would be interesting to see if they show a similar pattern. I, for one, would be most surprised if they showed that McGovernites were frequent purchasers of Nixonian apologias.

Of course, if the study does support Sunstein's argument, perhaps we should extend his call to have links to dissenting viewpoints not only the internet, but in books. Perhaps Michael Moore's publisher could include blurbs for Bill O'Reilly's books in Moore's latest. Or perhaps Sunstein's publisher's page of reviews for could include some reviews that might have disagreed with Sunstein's conclusions? Now that would be an unplanned encounter.

via Furdlog (but don't read him, because he and I agree frequently)

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March 11, 2004

Something's Gotta be Done About the Beatles

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Posted by Ernest Miller

Riffing off the Grey Album controversy, Pop Matters columnist Devon Powers writes a lyrical column that implicitly makes the argument for much shorter copyright terms without delving into legalities and economic arguments (Life Goes On). She may even have come up with a new rallying cry to go along with "Free the Mouse":

Something's gotta be done about the Beatles.

Her argument is that too-extensive copyright kills and mummifies culture, our culture, turning cultural touchstones into mere nostalgia:

[T]here's also a deafening cultural silence around the Beatles. Despite being one of the most influential recording acts in history, the Beatles do not allow their music to be sampled... And the Beatles aren't the only act; the collusion of exorbinant fees and copyright censure has made many of the musicians with the loudest cultural resonance into those whose music is only heard today as an echo from the past.
....But to me, it is beyond question that it is certainly time to free ourselves of the cultural nostalgia and legal stagnation that have allowed their music to fossilize. Music journalists must -- and important writing in Rolling Stone, New York Times, and other prominent publications already has -- applaud Danger Mouse's astounding artistic accomplishment, and let their critical praise become part of the discussion about what's at stake as copyright goes awry. And for all of us who hold music dear, we owe it to ourselves to not only let our musical past footnote our musical present, but also allow that past to live and breathe, change and reform, disappear and reappear in unexpected ways.

Indeed. Reading this column I can't help but think, "why not return to the original copyright term of 28 years?" That is approximately a single generation, which would mean that every new generation would be permitted to work with and reimagine the past, introducing older works to a newer audience. As Paul wrote and Devon reiterates: "La, la, la, la, life goes on."

via Sivacracy

PS See also, Powers' review of The King of France, a band I had the pleasure of hearing for the first time in New Haven (The Band That Will Be King).

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | File Sharing

March 10, 2004

Dangermouse, the Jay-Z Construction Set and the Videogame Content Creation Model

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Posted by Ernest Miller

DJ Dangermouse's release of the controversial Grey Album has brought the question of reusing and remixing content to the forefront. Now, another group has taken the next logical step and released the Jay-Z Construction Set:

The Jay-Z Construction Set is a toolkit with all of the necessary software and raw material to create a new remix of Jay-Z's Black Album. It includes nine different variations on the Black Album, over 1200 clip art images, and a couple hundred meg of classic samples and breaks. The Jay-Z Construction Set is available on-line through filesharing networks and protocols such as BitTorrent.

This collection of material is certainly a violation of copyright, yet it points the way to a much richer vision for culture. I would hope that, in the near future, artists and publishers will see the value of releasing not only polished works, but the bits and parts used to create a work, including those parts that were rejected.

This is good not only for fanboy obsessives, but could serve to train people's musical ears, helping them hear the difference between different mixes of music. It would obviously be a boon to unexperienced musicians who could learn much from the choices other musicians and producers make. DJs would certainly have more opportunity to creatively add to the originals with this sort of access. And, likely, such efforts would help identify new talent.

Combine this with a system that permits "recipe" mixes as I've written about before (A History Palette for Music and The Grey Album - No Copying Necessary) and there is no danger of the artists and producers losing money. Indeed, such a model has already been quite successful in another media - videogames.

Many videogames permit players to create new content for the game engine, such as levels, maps and mods. This new content is freely distributable (at least for noncommercial purposes) and frequently incorporates content created by the original game designer along with new user-created content. This has been incredibly successful for videogame companies. The more content there is, the more popular the game becomes. The ability to create and add content creates feverish and committed communities of fans for a game. Imagine if musicians had such communities working for them.

The videogame model works for the game companies for a couple of reasons, but could also work for music companies:

1) You need to purchase the game engine for the content to be useful. In my recipe model, the mixing software that recreates the mix from the recipe would serve this role. However, it wouldn't be a significant revenue stream for the artist.

2) Often, the levels, maps and mods created by fans include content originally created by the game creator and shipped as part of the game engine. The shared levels and maps generally don't include copies of this content, since it is assumed that the downloaders already have the content and it saves on file size. In essence, many of these shared levels are what I would call "recipes" that remix the existing content in the game. Of course, there are full mods with entirely new content, but those are relatively rare (though they can be extremely popular and creative). Here is where the music recipe model can compensate the artist. In order to create the remixed version of the music, a downloader of the recipe file is going to have to have access to the original works, which, presumably, would be paid for in some manner through a legal download system.

Of course, the Jay-Z Construction Set points to an advantage for musicians that game companies don't share. Generally, game companies don't really have the luxury of shipping alternate takes on a level or unfinalized content for the game. However, when a musician releases a wide variety of takes and alternates, which were created organically, they create a much richer ore that remixers can mine. The more material you release, the more things people can do with it, which means the more people will want it. Heck, musicians might eventually ship only the construction set along with their favored recipes.

In a related note, Furdlog pointed out a brief Billboard interview with DJ Dangermouse (Danger Mouse Speaks Out On 'Grey Album')

Comments (8) + TrackBacks (0) | Category: Copyright | Culture | File Sharing | Games

February 28, 2004

End of an Era

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Posted by Ernest Miller

Cardozo Law Professor Susan Crawford gives a wonderful description of a recent performance of Beethoven's Ninth Symphony conducted by Leonard Slatkin in which the famous conductor discussed and demonstrated various re-orchestrations of the masterpiece, particularly Mahler's (Bits, Atoms, and Beethoven). Slatkin is a proponent of the view that classical music is not unchanging and unchangeable, but can be re-imagined with the times.

Being an IP professor, Crawford can't help but apply this insight to the ongoing battles over copyright:

Maybe (here's the tie-in to innovation and intellectual property) we're in an era in which we're beginning numbly to accept that "content" is just provided to us. It's an atom, a thing that floats in space, unchanging. We can hear or see it, as part of a mass content-absorption experience, but we are at a distance from it.

But I think that she has it backwards. We aren't at the beginning of an era where we numbly accept content. The beginning of that era was when Edison first set stylus to wax cylinder, the beginning of the era of mechanical reproduction. It was an era of unchangeable physical format that could only be produced and distributed efficiently en masse. That era is dying.

After less than a century of dominance, I believe that people are waking up from the consumerist coma induced by the era of mechanical reproduction. What we are seeing is the birth of a new era, an era of empowerment, where people are both consumers and producers of content, a wonderful bricolage of both old and new. Blogs are one example (if you are reading this, you aren't reading only what traditional publishers put out), but so is the Grey Album, Phantom Edit, machinima, and the whole modding community (among others).

Of course, the beneficiaries of the old era (e.g., RIAA, MPAA, etc.) are busy trying their best to stop this new era from succeeding. They will ultimately fail, but not without doing damage in the meantime.

Comments (0) + TrackBacks (0) | Category: Copyright | Culture

January 27, 2004

Balkin on Sunstein, Blogging and Democracy

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Posted by Ernest Miller

Prof. Jack Balkin has made a couple of good posts about freedom of speech, democracy and blogging (What I learned about blogging in a year and Political Organization and Political Discussion on the Internet). The posts are mostly in response to Cass Sunstein's wildly overblown fears of internet-facilitated cultural isolation in and a recent article in the New York Times that has a similar thesis (Politics of the Web: Meet, Greet, Segregate, Meet Again).

Frankly, I've never really understood Sunstein's fears. It seems to me that we have far more to fear from the mass media, whether that mass media was the Catholic Church prior to the 95 Thesis or that mass media epitomized in The Triumph of the Will. I think the major conceptual problem with Sunstein's thesis is that he seems to assume that people are mostly passive consumers of information. This is one of the critical elements of the traditional mass media model. In the past, mass media has generally been dependent on top-down control of the means of production and distribution to fill the minds of passive consumers. Today's internet media doesn't eliminate the traditional model directly, but provides a competing means for bottom-up production and distribution that assumes active participation and production by people who aren't merely passive consumers.

In many ways, actually, the top-down and bottom-up means of production and distribution are complimentary, which is why Sunstein's calls for some sort of top-down control over the bottom-up internet strike me as so odd. Sunstein's thesis makes sense only to the extent that the public cannot be trusted (whether for social, technical, economic or legal reasons) to be both consumer and producer, recipient and distributer. If there are problems, the solution seems to be to give more capability to consumers to produce and distribute, rather than attempt to replicate mass media controls.

Comments (22) + TrackBacks (0) | Category: Blogging and Journalism | Culture | Freedom of Expression

January 16, 2004

Why Not Run Your Own Game Server?

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Posted by Ernest Miller

Terra Nova has an interesting little article on so-called "rogue servers" that host MMORPGs (Free Rogue Server Achieves Significant Population). Most, if not all (any P2P MMORPGs out there?), MMORPG are based on the client/server model, where each user has a client that talks to a centralized server. The client programs are either sold for a one-time fee or given away. The business model is based on charging subscriptions for the client programs to have access to the server. The issue of rouge servers arises when hackers reverse-engineer or obtain by other means the server software and begin running their own servers.

From a free speech and copyright overreach point of view there are serious legal and policy issues in any attempt to thwart many of these "rogue servers." See, EFF's work on the Blizzard v. BNETD case for some details on some of them.

The discussion on Terra Nova is quite interesting and there is the suggestion of franchising the running of servers. But why not go farther? Compete with these rogue servers by creating server subscriptions. That is, you can have a client and subscribe to the main server farms, or you can run your own server (for you and your friends/clan, perhaps). As a server manager, you subscribe to a service that keeps your server up-to-date with patches and new content (which you use to keep your friends happy).

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | File Sharing | Games | Open Access | Open Standards

January 15, 2004

Book Publishing in Every School and Library

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Posted by Ernest Miller

The Shifted Librarian is trying to bring more attention to library policy in Illinois, particularly a new plan from the governor to give one book a month free to every child from birth to five years old (Giving a Child a Book Versus Giving a Child an Entire Support Institution). At the same time, however, the governor is cutting funding for existing libraries. I agree with Jenny that the state certainly shouldn't be cutting library funding at the same time it is giving books to children not yet old enough to read. However, I really like the giving books away part.

Why not split the difference?

What if Illinois spent at least part of the $26 million for the book give away program to install book publishing equipment in every library in Illinois? Then, just like the Internet Bookmobile, children would be able to walk into a library and walk out with a book they could keep. Frankly, I think every school and library should have book publishing equipment. Given enough scale it is probably cheaper to print out most public domain books and give them away then deal with the costs of checking them out and restocking. Heck, you could have an option: check the book out and be subject to possible late fees, or pay $1 or so and keep the book. Might work out pretty well.

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November 15, 2003

Second Life and Machinima

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Posted by Ernest Miller

Thanks to the new Second Life license, discussed here (New IP Rules for Second Life), there has been a request by a director of machinima to "film" in the world of Second Life. Permission has, of course, been granted.


Comments (0) + TrackBacks (0) | Category: Culture | Games | Machinima | The State of Play

November 12, 2003

TV Producers Take Heart - TiVo Addiction

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Posted by Ernest Miller

The San Diego Union-Tribune runs a Reuters wirestory on the difficulties some have taking time off from their TiVo (PluggedIn: TV viewers find TiVo addictive). A long list of recorded shows on TiVo apparently makes some feel guilty not watching them. While in the past, if you missed a show, you simply missed it. Now the show sits on TiVo's hard drive waiting for you to watch it. I can imagine this can be a problem for some, but most people have experienced similar feelings at one time or another. Have you ever felt guilty about not keeping up with a newspaper subscription, for example? Do you have a stack of magazines waiting to be read, eventually?

Though I don't think this phenomena particularly compelling, I do think that the social ramifications of TiVo are going to be quite interesting, as we increasingly switch from traditional broadcast to new hybrid models.

Side note ... who else thinks that the TiVo trademark is in danger of becoming genericized?

via Techdirt, see also BoingBoing

Comments (0) + TrackBacks (0) | Category: Culture | Tools | Trademark

November 09, 2003

America's Army 2.0 Released

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Posted by Ernest Miller

If you are not familiar with it, you should definitely check out America's Army, the videogame produced for and about the US Army. The videogame itself is excellent and the concept, videogames that stress realism as a recruiting tool, is not exactly revolutionary, but not far from it. The game itself has been out for a year now, with a major update released just this past week. For a good overview of the game and some of the issues being raised, see this Chicago Tribune (reg. req.) article (Army targets recruits with new game). Once you've read the article ... give the game a try. It's free and if you don't want to hassle the 500MB download, get a copy on CD from your local Army recruiter.

via En Banc


MIT's Technology Review has an interesting article regarding some of the issues surrounding realistic war-based videogames (War Games). The article discusses America's Army, of course, but also September 12th. There is also quite a provocative quote from one game company:

In a world being torn apart by international conflict, one thing is on everyone’s mind as they finish watching the nightly news: 'Man, this would make a great game.'

It'll be interesting to see where Kuma Reality Games goes with their news-based game Kuma War ("From the Headlines to your PC").

Gonzalo Frasca, a game theorist and author of September 12th, thinks his ideas were somewhat misinterpreted by the article (Henry Jenkins on War Games).

Comments (0) + TrackBacks (0) | Category: Culture | Games

November 06, 2003

The iTunes Catalog is Cool

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Posted by Ernest Miller

Ernie the Attorney points to a neat little program called the iTunes Catalog that lets iTunes users (Mac only) create a professional-looking catalog (including album cover art) of all your iTunes music in HTML of PDF formats (What's in your iTunes music catalogue?). You can check out a sample catalog taken from Ernie's collection here (Ernest's Library). I think this very cool (though I don't have an iPod).

However, a few questions/points:

First, why do you have to pay ($10) for this software? The HTML catalogs can easily be linked into the iTunes store, thus providing lots of free advertisement for iTunes and their licensed artists. I rather expect Apple and its now numerous rivals to provide this functionality in upcoming releases for free. Heck, I would imagine that they would host the catalogs free-of-charge.

Second, where is the easy ability to publish playlists and the associated software that will let me automatically download all the music to go along with someone's playlist that I trust? I have eclectic tastes in music, but generally I don't want to indiscriminately mix genres (discriminately mixing genres for a playlist is something else). Playlist functionality would be a useful addition to all these online systems.

Third, people always talk about the social benefits of Original Napster-like collection browsing. Doesn't software like this provide almost the same social benefits (and in some ways, more), while being fully legitimate?

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October 31, 2003

Happy Halloween, Nosferatu (No Thanks to Copyright)

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Posted by Ernest Miller

Tonight, while the trick-or-treaters visit, I will be screening Nosferatu in my driveway on an 80" HDTV projection screen.

Released in silent black and white in 1922, Nosferatu is an unauthorized adaptation of the novel "Dracula" by Bram Stoker and is widely considered one of the classics of cinema. Certainly, many think it is the best adaptation of Dracula in film, one of the most influential horror movies of all time and a masterpiece of Expressionist filmmaking. Thanks to copyright law, however, this film was very nearly lost to us (The Saga of Nosferatu).

Florence Stoker, widow of Bram Stoker (who had died in 1912), sued the producers of Nosferatu for infringement and won. As part of the 1925 decision, all copies of Nosferatu were to be destroyed. Most were. Over the next few years, any copies that became public were also destroyed. This may have meant the end of the film, except that a few isolated copies managed to survive Florence Stoker's death in 1937.

Thank goodness for "pirates."

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | Halloween

October 29, 2003

Would We Still Have Libraries?

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Posted by Ernest Miller

Jenny Levine, aka The Shifted Librarian, has a great line in her short post on this blog and the DMCA exemptions (Chipping Away at Fair Use). If I had a "quote of the week", this would definitely be it:

If public libraries didn't already exist, would we be able to start them in this day and age? My guess is no.

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | Digital Millennium Copyright Act

October 28, 2003

Videogames Big in Baghdad

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Posted by Ernest Miller

According to the Iraqi blog Healing Iraq, "videogames are a huge part of [Iraqi] society" (Gamers of the world...UNITE):

Almost everyone I know, regardless of their socioeconomic status, either owns a console or has regular access to one. Almost every neighbourhood in Baghdad has what you might call a 'videogame cafe' with several consoles where people can play for about a dollar an hour.

LAN parties are also quite popular. Interesting.

via Due Diligence

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October 23, 2003

The Fragility of Data

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Posted by Ernest Miller

The Shifted Librarian reminds us how fragile modern data storage devices are by pointing to a librarian and archivists guide to preserving CDs and DVDs (Please Do Not Feed the DVDs). The HTML guide can be found here (Care and Handling of CDs and DVDs: A Guide for Librarians and Archivists) or in ([PDF]). Jenny reports from a recent librarian's conference A/V panel:

One person in the audience said his library gets only a dozen or so circs out of their DVDs because they are used so heavily and they don't hold up well. Judy from Schaumburg said her library gets a much higher circ rate, with some lasting as long as 120 circs.

One of the reasons I oppose DRM so strongly is because data storage is really quite fragile. Without the ability to freely copy, it is easy for information to be lost.

Comments (0) + TrackBacks (0) | Category: Culture | Digital Rights Management

Looking into the Connected Future

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Posted by Ernest Miller

VentureBlog has a good report the recent conference at Dartmouth, Unleashed: The Summit on Wireless and Mobile Computing, and what the future may hold for digital connectivity (Ubiquity Breeds Utility). The article notes how Dartmouth has led the way in being one of the most wired of college campuses, and their experience with the cutting edge may provide insight for the mass market future. The author of the piece, Naval Ravikant suggests, among other things, that:

  • Instant Messenger for voice will emerge
  • Portable devices completely dominate
  • Mobile doesn't mean distant

Read the article for explanations and many more interesting points.

via Due Diligence

Comments (0) + TrackBacks (0) | Category: Culture | WiFi

October 22, 2003

Thanks for the Memories

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Posted by Ernest Miller

The Independent has an interesting story about an advertising technique known as "memory morphing" (Selling you a new past). Even if you didn't particularly like using a product, this advertising technique will help to mold your memories so that you "remember" liking the product. Experiments have shown people "remembering" meeting Bugs Bunny at Disneyland (highly unlikely - and unfortunate - I have to ask, where is the "Who Framed Roger Rabbit" sequel?), and recalling an orange drink spiked with vinegar and salt as "refreshing." One example of this technique in the wild would be the "Remember the Magic" campaign run by Disney.

Comments (1) + TrackBacks (0) | Category: Culture