Corante

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 @
Copyfight
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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 gmail.com

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Category Archives

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 (formaurbis.stanford.edu) 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.

Cool.

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.

Wow.

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.

Thoughts?

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 (Vacheland.com "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