First, there are some different preservation efforts to consider. The NY Times ran a piece about Emory University’s attempt to archive Salman Rushdie’s work from book material to letters to digital artifacts. In addition, Carl Malamud has found yet another way to help reserve our digital knowledge. His latest project, the International Amateur Scanning League, hopes [...]]]> Archiving our digital heritage becomes more important each day. We all generate an incredible amount of cultural and social content. As I wrote in my article, Property, Persona, and Preservation, “Before one can access, one must preserve.” Thus, I am happy to see what appears to be an movement towards greater preservation of our digital culture. But, I am also wondering about the implications of these efforts for intellectual property.

First, there are some different preservation efforts to consider. The NY Times ran a piece about Emory University’s attempt to archive Salman Rushdie’s work from book material to letters to digital artifacts. In addition, Carl Malamud has found yet another way to help reserve our digital knowledge. His latest project, the International Amateur Scanning League, hopes to upload the National Archives’ collection of 3,000 DVDs to YouTube by rallying volunteers to crowd-source the immense project. The idea of increasing access to the National Archives seems brilliant. The Times notes that great information including “an address by John F. Kennedy; a silent film about the Communist ‘red scare’; a training video on farming; and a Disney film for World War II soldiers about how to avoid malaria, in Spanish” has been uploaded. Furthermore, C-SPAN is now putting up 23 years worth of its video history online for free at C-SpanVideo.org. Just how much droning one may want to watch is beyond me, but if the archive is searchable, the ability to dig up even more about any candidate will mean greater election madness, and I’d bet reduce any legislator’s chance of winning the White House even more than is already the case.

In general, these projects present some fascinating questions. As the Rushdie article notes, the technical questions about preserving the data so it does not decay and having systems that can even allow access to the material are complex:

Mr. Rushdie’s outdated computers presented archivists with a choice: simply save the contents of files or try to also salvage the look and organization of those early files. Because of Emory’s particular interest in the impact of technology on the creative process, Naomi Nelson, the university’s interim director of Manuscript, Archives, and Rare Book Library, said that the archivists decided to try to recreate Mr. Rushdie’s writing experience and the original computer environment.

The National Archives project will most likely run into a lawsuit for “Although the DVDs are all technically available to the public, they are hard to see unless a person visits the archive or pays for a copy via Amazon.com. With the scanning project, they are a few mouse clicks away.” That points says to me that there may be some money claims hiding in the background. In addition, some of the works in the Archives may be subject to estate license restrictions. I think the resistance will occur despite the government’s desire to expand access to government information repositories. Like the Google Book Project, I would expect publishers to rush in and cry foul. Authors may do so too. As shown by the Google deal and in publishing in general, the status of who holds the digital rights for older material is likely specific to each contract. The messy anti-commons problems await. Still, assuming the project is permitted, it is great to have the material more easily available.

As for C-Span, I look forward to seeing whether this amount of access improves debate or hinders it. One might be even more circumspect about how one argues in the empty chamber or one may grandstand even more in the hopes of catching attention.

For me, digital archives present an excellent way to press on what we want out of our intellectual property, education, and information policies. These archiving efforts show different slices of the opportunities and problems that we are quite fortunate to have.

Would Amazon really refuse to carry all books from one of the largest publishers in the Untied States? As my friend John Scalzi pointed out (He was one of the first to notice the move, because his publisher is part of Macmillan, and his fans asked him why his books were not available almost immediately after Amazon’s move.), Amazon waited until late Friday to remove the [...]]]> Many may know about the fight between Amazon and Macmillan publishing. Yes it is about e-books and pricing, and the death of an industry, the death of print, and heck throw in Death in Venice if you like. But the real move may have been to highlight something else Amazon is quite worried about: Google and the Book Settlement.

Would Amazon really refuse to carry all books from one of the largest publishers in the Untied States? As my friend John Scalzi pointed out (He was one of the first to notice the move, because his publisher is part of Macmillan, and his fans asked him why his books were not available almost immediately after Amazon’s move.), Amazon waited until late Friday to remove the Macmillan books. John thought that the timing was probably designed to mitigate any negative responses that might go Amazon’s way. I think John was correct, but I think this statement reveals a perhaps bigger reason for the bluff:

“We have expressed our strong disagreement and the seriousness of our disagreement by temporarily ceasing the sale of all Macmillan titles,” Amazon said. “We want you to know that ultimately, however, we will have to capitulate and accept Macmillan’s terms because Macmillan has a monopoly over their own titles, and we will want to offer them to you even at prices we believe are needlessly high for e-books.”

Just to repeat it: “Macmillan has a monopoly over their own titles, and we will want to offer them to you even at prices we believe are needlessly high for e-books.” Where else does monopoly and books arise? Ah yes, when Amazon (and others) opposes the Google Book Settlement.

I think this move provides an interesting, concrete example that will be offered to argue that the GBS will provide Google with power equal to or greater than Macmillan’s. The question is, if it is a monopoly as Amazon claims, why aren’t folks attacking all major publishers? Amazon may argue that Google will have a unique position in the e-book market, but those claims require more details if one is to sort them properly.

The NFL initially said that its trademark  registration of “Who Dat?” prohibited the sale of unauthorized merchandise with that phrase.  This claim was rather broad given that the phrase probably was used in New Orleans long before the league obtained its registration in 1988.  In any event, the cease-and-desist letters sent by the NFL led to public outrage and a subsequent “clarification” that the league was referring only to merchandise that could be confused with official apparel.

While the formal [...]]]> The recent dustup between the NFL and T-shirt producers in New Orleans over who owns the phrase “Who ‘Dat?” — a rallying cry for the Saints — illustrates an important limiting principle for intellectual property — adverse public relations.  (Full Disclosure:  I live in Indianapolis.  Go Colts!)

The NFL initially said that its trademark  registration of “Who Dat?” prohibited the sale of unauthorized merchandise with that phrase.  This claim was rather broad given that the phrase probably was used in New Orleans long before the league obtained its registration in 1988.  In any event, the cease-and-desist letters sent by the NFL led to public outrage and a subsequent “clarification” that the league was referring only to merchandise that could be confused with official apparel.

While the formal rights accorded to patents, copyrights, and trademarks are sweeping, in practice they cannot be enforced to their limits because that would alienate potential customers.  The suits brought by the music studios against illegal downloads were largely abandoned for this reason.  Of course, there are many situations where shining the light of publicity on litigation will not deter someone from enforcing IP rights.  Nevertheless, counsel representing someone who is the target of such a suit — especially when the defendant is David fighting Goliath — would be well-advised to concentrate on their media strategy rather than on their legal one.

What has really struck me in working on the piece is the weakness of the arguments put forth to justify the imposition of non-competition agreements.  [...]]]> As I said in my first post, I am working on an article about employee non-competition agreements.  As you might infer from the title of this post — * spoiler alert * — I don’t think much of them.  When I practiced law, employee non-competes nearly always struck me as unfair and often unnecessary (and I worked on the both the employee and the employer side).   Many of the employee-side arguments concerning the problems with non-competition agreements cover fairly well-trod ground:  restrictions on employee mobility, unequal bargaining power, little if any negotiation of terms, nominal consideration, difficulties of enforcement, and so on. 

What has really struck me in working on the piece is the weakness of the arguments put forth to justify the imposition of non-competition agreements.  Those arguments fall roughly into three categories:  (1) freedom of contract; (2) general references to “business necessity” or some variation on that; (3) the need to protect intellectual property or IP-like assets, such as trade secrets or “confidential information.”  To my mind, each of these justifications is problematic. 

The first is problematic for many of the reasons put forth in the “employee-side” arguments mentioned above.  “Freedom of contract” is fairly illusory when, for example, the non-compete is presented to the employee after two years of employment and the consideration is one day’s vacation.  In addition, non-competes — by their very name — are a form of intervention in the market, putting them at odds to some extent with the freedom of contract principle that is animated by a free market ethos.

The second justification — “business necessity” — is problematic in part because it is so rarely suppported with evidence of the nature of that business necessity.  Because the vast majority of non-competes are not challenged, the incentive for employers to carefully craft a non-compete to limit post-employment competition only enough to protect true  ”business necessities” or “legitimate interests” (as is often the standard) is minimal.  In addition, there is some evidence that, in fact, businesses don’t need non-competes.  Overall, firms in states in which non-competes are unenforceable (most notably, California), have not suffered much, if any, disadvantage from the legal rule.  There may be some advantages to individual firms in imposing non-competes, but it appears that the overall performance of a region or of an industrial sector is, in fact, hampered by a rule permitting non-compete enforcement.  Some observers have concluded that the rule rendering non-competes unenforceable causes “high-velocity” employment, which contributes to knowledge spillovers and consequently greater economic growth and innovation.

The final set of arguments revolves around IP-like justifications:  the need to protect trade secrets and other intangible confidential information; and the need for an incentive for firms to invest in the creation and disclosure of information.  I argue in the article that these justifications are misplaced.  For a variety of reasons, non-competes are simply not a good tool for protecting IP-like assets, and a rule rendering non-competes unenforceable will more properly channel protection to the IP regimes.

“On the week my book comes out in paperback, I should produce my own pirated version and give it away free? Why don’t I just punch my publisher in the face? That would be less work.”

My agent rocked back in his chair (a chair bought with 15% of my earnings) and laughed. “I didn’t say it was my advice, I just said there’s nothing they can do to stop you.”

***

By releasing the ebook myself for free at this stage of its life, it would do very little damage to sales but will get my words into the hands of a whole new US audience: readers who might then seek out other things I’ve written or pay me to write new things, [...]]]> Here’s some controversial advice:

“On the week my book comes out in paperback, I should produce my own pirated version and give it away free? Why don’t I just punch my publisher in the face? That would be less work.”

My agent rocked back in his chair (a chair bought with 15% of my earnings) and laughed. “I didn’t say it was my advice, I just said there’s nothing they can do to stop you.”

***

By releasing the ebook myself for free at this stage of its life, it would do very little damage to sales but will get my words into the hands of a whole new US audience: readers who might then seek out other things I’ve written or pay me to write new things, or buy the properly-formatted Kindle edition with clickable footnotes – or any of the other myriad benefits that Doctorow cites for wanting to give his books away free.

For all those teaching (and learning about) copyright, one of the most interesting controversies of the past decade has been the interpretation of “new uses” of copyrighted works in relation to traditional publishing contracts. There is a good primer on the area by an attorney at Finnegan. Battles over such rights are heating up now.

As for this author’s strategy: I have mixed feelings. David Brooks has noted that in the weightless economy of online life, new rules are necessary:

When the economy was about stuff, economics resembled physics. When it’s about ideas, economics comes to resemble psychology.

OTOH, Brooks has recently been called the NYT’s “main op-ed purveyor of commonsense banalities” by Graham Bader in ArtForum. In the course of reviewing a Jeff Koons show, Bader noted that Brooks’s aesthetic sensibility is a form of “socialist realism,” urging us to “look beyond the unredeemed reality of the present to ‘catch a glimpse of our tomorrow.’” I have lingering worries that self-piracy is one more facet of a race-to-the-bottom for audience in a world of short attention spans, imploding publishers, and twitterature.

X-posted: Madisonian.

Despite what you may have been told, you may not use LZ’s words as you see fit, as if you owned them, while you hide behind the rubric of “fair use”. “Fair use” is a very-broadly defined doctrine, of which I take a very narrow interpretation, and I expect my views to be respected. We can therefore either more or less amicably work [...]]]> Ann Bartow’s post about Paul Zukofsky, son of Louis and Celia Zukofsky, and his attempt to exert extreme control over his parents’ work reveals that heirs are problem for copyright. Mr. Zukofsky asserts some untenable points about his power over the material and the need for academics to seek his approval. The full letter is on his site. Here are some choice quotes:

Despite what you may have been told, you may not use LZ’s words as you see fit, as if you owned them, while you hide behind the rubric of “fair use”. “Fair use” is a very-broadly defined doctrine, of which I take a very narrow interpretation, and I expect my views to be respected. We can therefore either more or less amicably work out the fees that I demand; you can remove all quotation; or we can turn the matter over to lawyers, this last solution being the worst of the three, but one which I will use if I need to enforce my rights. …

Next, other than for the following, I am not trying to censor you. I hardly give a damn what is said about my father (I am far more protective of my mother) as long as the name is spelled properly, and the fees are paid. My interest is almost purely economic. That being said, I do not approve of delving into the personal lives of my parents. If you wish to spend your time worrying if LZ did or did not shtupp alligators, that is your problem, but I will not approve quotation. That is not scholarship. That is gossip, and beneath contempt. …

Finally, when all else fails, and you remain hell-bent on quoting LZ, but you really, really REALLY do not want to deal with me, or you have been stupidly advised to try to circumvent me — remind yourself again and again, and yet once more, what Lyndon Baines Johnson’s said about J. Edgar Hoover i.e.: “I’d rather have him inside the tent pissing out, than outside pissing in”.

Although these statements may seem like ravings, Mr. Zukofsky is not alone in having these perspectives. As some know, the Joyce, T.S. Elliot, J.R.R. Tolkien, J.M. Barrie, Sylvia Plath, Samuel Beckett, and Bertolt Brecht estates have expressed similar views. What strikes me here is that although Louis and Celia Zukofsky are important figures in American poetry, I would bet that many are unaware of who they are. Their son’s perspective of wanting extreme control, little discussion, and rent extraction indicates his interest in, well, his interests. Those do not seem to include aiding people who wish to keep the artists in question alive as part of our culture. All of which makes me think Mr. Zukofsky might take a lesson from another poet, Percy Bysshe Shelley, for I think that not even the pedestal may remain for his parents if he maintains this posture.

OZYMANDIAS

I met a traveller from an antique land
Who said: Two vast and trunkless legs of stone
Stand in the desert. Near them, on the sand,
Half sunk, a shatter’d visage lies, whose frown
And wrinkled lip, and sneer of cold command
Tell that its sculptor well those passions read
Which yet survive, stamp’d on these lifeless things,
The hand that mocked them and the heart that fed.
And on the pedestal these words appear:
“My name is Ozymandias, king of kings:
Look on my works, ye Mighty, and despair!”
Nothing beside remains. Round the decay
Of that colossal wreck, boundless and bare,
The lone and level sands stretch far away.

IMAGE: WikiCommons. Thought to have inspired the poem.
License: GNU Free Documentation License, Version 1.2 or any later version published by the Free Software Foundation

Description: The British Museum, Room 4 – Colossal bust of Ramesses II, the ‘Younger Memnon’ From the Ramesseum, Thebes, Egypt 19th Dynasty, about 1250 BC. One of the largest pieces of Egyptian sculpture in the British Museum. Weighing 7.25 tons, this fragment of his statue was cut from a single block of two-coloured granite. He is shown wearing the nemes head-dress surmounted by a cobra diadem.

Author: Mujtaba Chohan E-mail: m.chohan@gmail.com Source: British Museum Visit

1976

Pastime Paradise – Stevie Wonder

1995

Gangstas Paradise – Coolio

1996 By the way, I suggest that anyone wanting a great album acquire Stevie Wonder’s Songs in the Key of Life.

1.  The Justices seemed to reject the argument that Section 101 should be read broadly since the novelty and nonobviousness requirements were sufficient to prevent things like “a method of speed dating” from being patented.  Counsel for Bilski kept responding to the Court’s hypotheticals by saying that the proposed processes could “potentially” be patentable if they met the other statutory requirements.  Nobody embraced that view.  I think this is a good sign, because in practice 102 and 103 haven’t worked well as gatekeepers.

2.  Unfortunately, the suggestions by the Justices about how to limit Section 101 were [...]]]> Here are some observations about the oral argument today in Bilski, which dealt with the scope of patentable subject matter and (potentially) the viability of business method and software patents.

1.  The Justices seemed to reject the argument that Section 101 should be read broadly since the novelty and nonobviousness requirements were sufficient to prevent things like “a method of speed dating” from being patented.  Counsel for Bilski kept responding to the Court’s hypotheticals by saying that the proposed processes could “potentially” be patentable if they met the other statutory requirements.  Nobody embraced that view.  I think this is a good sign, because in practice 102 and 103 haven’t worked well as gatekeepers.

2.  Unfortunately, the suggestions by the Justices about how to limit Section 101 were not well thought out. Declaring that 101 “excludes business methods” or includes only “technology” will just create a decade of uncertainty as people try to figure out what those categories mean.  What we need from the Court is a set of factors that can guide the analysis — my own views on that are here.

3.  The viability of State Street Bank is in doubt.  At least two Justices (Kennedy and Stevens) seemed unclear about whether State Street should survive, even though the Government took the position that the case was correctly decided.  I don’t think that the Court will take down software patents in this case, but I think the odds went from about 5% to about 20%.

I’d rather my fans not read this version of Midnight Sun. It was only an incomplete draft; the writing is messy and flawed and full of mistakes. But how [...]]]> Apparently Stephenie Meyer, the author of the Twilight series, started writing a version of the series from a different character’s (Edward’s) point of view and the early, incomplete draft was leaked onto the Internet. Jacqui Lipton’s post about Stephenie Meyer’s “reaction to the unauthorized release” of her partial draft reveals another way to think about what is going on here. I followed the link to Ms. Meyer’s post about the problem. I was quite surprised to see that Ms. Meyer has posted the draft on her web site while also expressing her view about reading the draft:

I’d rather my fans not read this version of Midnight Sun. It was only an incomplete draft; the writing is messy and flawed and full of mistakes. But how do I comment on this violation without driving more people to look for the illegal posting? It has taken me a while to decide how and if I could respond. But to end the confusion, I’ve decided to make the draft available here (at the end of this post). This way, my readers don’t have to feel they have to make a sacrifice to stay honest. I hope this fragment gives you further insight into Edward’s head and adds a new dimension to the Twilight story. That’s what inspired me to write it in the first place.

Why post the draft? One could simply ask readers not to read the draft floating around the Internet. Note that Ms. Meyer explicitly does not want to drive people to the unauthorized work. To me this move seems like a way to re-capture the attention that might have gone the sites with the download. In that sense, she may be using her reputation and attention power to undercut the benefits that may flow from unauthorized distribution. Of course there may be sales problems here as some may have been willing to pay even for the rough draft. But that idea probably does not cut off the usual claim that leaking will harm the final market. I would be surprised if those who read the early manuscript will not be more than happy to buy the final draft. In other words, the law often claims that the harm in such leaking or copying is that the unauthorized version is a substitute for the full work which I don’t think is the case.

To be clear, I think Ms. Meyer doesn’t want people to read the draft. But faced with the draft being out there, her response is simply a wise strategy. She tells her fans 1) Don’t read it 2) If you have to read it, read it from my site, 3) Reading from my site is a way to stay “honest” and not “sacrifice” (I am not sure what is being sacrificed but I think it is integrity or loyalty to the author) which means not fueling those who are taking value away from her.

There is an extra point here. When Ms. Meyer says she can’t continue with the book, she is giving honest information to her fans: certain acts (i.e., unauthorized copying and distribution of her work) upset her. In fact, they upset her enough that she will not finish the work in question. I don’t think this point is a threat. And, regardless of motivation, the move tells fans how she wants to interact with them. Insofar as there is relationship with her fans, Ms. Meyer has communicated what she expects. A Rebecca Tushnet pointed out in the comments to Jacqui’s post, there are already “over 100,000 Twilight stories–some of them from Edward’s perspective–available at fanfiction.net. How Ms. Meyer feels about those stories may differ from how she feels about her draft being distributed without permission. So as Jacqui points out this one is personal, but I think it may also be professionally wise.

P.S. Those interested in more on how reputation and attention will be a key asset in an online world may want to read my essay Individual Branding: How the Rise of Individual Creation and Distribution of Cultural Products Confuses the Intellectual Property System.

I highly recommend the keynote lunch with Pam Samuelson and Paul Courant. That panel warmed [...]]]> D is for Digital is over now. I urge anyone interested in the Google Book Deal (aka the Google Book Search) to check out the schedule page and the webcast links (the stream links are at the top of the Friday and Saturday schedules respectively). James Grimmelmann put together a conference that aired out pro and con views rather well. In fact, I’d say although many were questioning the deal, I learned a good amount about the views of those in favor of the deal. I was not convinced that the deal is good and should go forward, but I appreciated hearing more about how the deal evolved and defenders’ views.

I highly recommend the keynote lunch with Pam Samuelson and Paul Courant. That panel warmed up the group. Some really good questions about transparency of the process, responsibility, and more came up. Pam’s key point that if one builds a pubic good this big, public trust responsibilities go with it was dead on for me. I highly recommend watching the video for all that was said.

The next panel C is for Culture was excellent. James asked a question that has been on my mind and we had kicked around at WIP IP last week. Is Google Book Search irrelevant?

Here is why that is good question. First, the day so far emphasized that the majority of the books in question are academic books. As Pam explained and Paul Duguid echoed, if scholars’ books are at stake, scholars should be involved. Paul made clear that scholarly standards should guide the project.

Now, consider that many books are becoming available on BitTorrent. In addition, one panelist, Dan Reetz has a fascinating project. His DIYscanner project is a wild moment in grassroots digital activism. The story of how he chose to build his low-cost, open source DIY scanner (we’re talking maybe $300-$400 total) so that one could scan personal (and other books) at the rate of a few seconds per page and without destroying the book merits another post. (for now here is a link to the plans to build your own scanner) In addition, Reetz noted that majority of new books are leaked prepublication. As a general matter, a key claim is that users will pay for a book but copy the book so that they can search and take many books with them. The importance of these changes is that crowd-sourced and other approaches to digitizing text is on the move. One can see this shift as indicating market failure or that ereader functionality will be more and more the case.

As scanners, ereaders, and companies like Stanza offer better ways to access, search, mark, and read, the walled or controlled version of the text experience that the Google Book Deal offers seems odd. I doubt, however, that it will be irrelevant. Google’s brand, the ease of searching (even with its errors so far), and the ability to trust Google over BitTorrent or other sources will likely make it relevant to many. Nonetheless, the growth in alternative sources would suggest that Google will need to choose between a web search that captures all useful book offerings or a Google Book Search that only gives Google Book results. As the last panel on antitrust explored, Google is already dominant in search. It arguably killed a little company called MapQuest. Once Google offered its maps and its maps became the default listing when one entered address information into the search, MapQuest was done. That seems awfully close to the MS bundling issues of the last decade. When it comes to books, Google’s lead and dominance will give it massive power and leverage over how we all access knowledge. Nonetheless, it may be that grassroots, crowd-sourced movements will permit an end around for the control the publishers want through this deal. To be clear an end-around is insufficient protection against the lock-in problems the Google Book Deal poses, but it may help push Google to reach a deal that is less run by publisher interests.

First neither party represents the public. One cannot expect them to represent the public, and one ought not trust they will do the right thing for the public. To be clear, I am not making a moral judgment here. I expect, as we all should, that each party will seek to maximize its position. Understanding why I refuse to call this situation a settlement helps understand this point. As many know, this action encompasses far more than [...]]]> The Google Book Deal is suspended. Time to cheer, correct? No. As Pam Samuelson noted in the New York Times, that probably is too little time to resolve the issues at hand. In fact I think right now is when the GBD is at quite a dangerous stage.

First neither party represents the public. One cannot expect them to represent the public, and one ought not trust they will do the right thing for the public. To be clear, I am not making a moral judgment here. I expect, as we all should, that each party will seek to maximize its position. Understanding why I refuse to call this situation a settlement helps understand this point. As many know, this action encompasses far more than the claims at issue in the suit. Many think that Google was on strong grounds for its fair use clam and its original use. The Publishers (aka the Registry seeming to be working for authors) saw the chance to get ahead of the digital curve. Unlike music and film, they realized they could look good and capture publishing’s future. They offered Google a deal that Google did not need. Or did it? Although Google is a data vacuum and does well with the ad-based business model, the search giant has been searching for a new revenue stream. Online ads can’t be the only source of revenue from any viewpoint. That is a precarious position. Indeed, the online ad market just took a big dip. The Deal presents Google with the chance to make money from something other than ads.

With this perspective one sees that expecting or trusting either party to look out for the public’s interest is foolish. My guess is that the public choice literature could yield some useful ways to think about the problem too, but I have not thought that through as yet.

Second, Google and the Publishers now have a wave of information from all quarters that they can use to their benefit. Here is the strategy that I expect to see. Assess the most severe and some of the less severe criticisms. Incorporate some of them in changes. Keep the deal as is for the most part (Note that is precisely what the Registry said will be the case “the core agreement is going to stay the same.”). Then when the time to approve, deny, or move the Deal to another form comes, one claims “We acted in good faith. We can’t keep everyone happy. Without this deal no one wins. Can’t we get along, move forward, and sort the details later? That is a more reasonable way to proceed.”

More importantly, those who have kept paying attention to the problem may start to lose focus or fade out. People may become tired or say is this thing still going on?

And that is why I say Danger Will Robinson. The Google Book Deal is at Defcon 2.