Category: Digital Culture

Top Five Technology Trends

As usual, the LITA top 10 technology trends session at ALA produced some thought-provoking results. And, as usual, I have a somewhat different take on this question.

I’ll whittle my list down to five.

  • Digital Copyright Wars: Big media and publishers are far from finished changing copyright laws to broaden, strengthen, and lengthen the rights of copyright holders. And they are not yet done protecting their digital turf with punitive lawsuits either. One big copyright impact on libraries is digitization: you can only safely digitize what’s in the public domain or what you have permission for (and the permission process can be difficult or impossible). There’s always fair use of course, if you have the deep pockets and institutional backing needed to defend yourself (like Google does) or if your efforts are tolerated (like e-reserves has been so far, except for a few sub rosa publisher objections). In opposition to this trend is a movement by the Creative Commons and others to persuade authors, musicians, and other copyright holders to license their works in ways that permit liberal use and reuse of them.
  • DRM: The Sony BMG rootkit fiasco was a blow, but think again if you believe that this will stop DRM from controlling your digital content in the future. The trick is to get DRM embedded in your operating system, and to have every piece of computer hardware and every consumer digital device that can access and/or manipulate content to support it (or to refuse access to material protected by unsupported DRM schemes). That’s a tall order, but incremental progress is likely to continue to be made towards this goal. Big media will continue to try to pass laws that mandate certain types of DRM and, like the DMCA, protect its use.
  • Internet Privacy: If you believe this still exists on the Internet, you are either using anonymous surfing services or you haven’t been paying attention. Net monitoring will become far more effective if ISPs can be persuaded or required to retain user-specific Internet activity logs. Would you be upset if every licensed e-document that your library users read could be traced back to them? Unless you still offer unauthenticated Internet access in your library, that may depend upon your retention of login records and whether you are legally compelled to reveal them.
  • Net Neutrality: If ISPs can create Internet speed lanes, you don’t want your library or digital content provider to be in the slow one. Hope you (or they) can pay for the fast one. But Net neutrality issues don’t end there: there are issues of content/service blockage and differential service based on fees as well.
  • Open Access: If there is a glimmer of hope on the horizon for the scholarly communication crisis, it’s open access. Efforts to produce alternative low-cost journals are important and deserve full support, but the open access movement’s impact is far greater, and it offers global access to scholars whose institutions may not be able to pay even modest subscription fees and to unaffiliated individuals.

Netflix and the Long Tail

Netflix, the Internet company that rents DVDs, has an inventory that includes most of the 60,000 non-pornographic DVDs that are commercially available. What percent of these titles do you think rent each day? Five percent? Ten percent? Twenty percent at most?

No, about 66%. That’s 35,000 to 40,000 titles (and an unspecified number of actual DVDs) out the door and into customers’ mail boxes every day. (There are about five million Netflix accounts.)

The long tail at work.

Source: Leonhardt, David. "What Netflix Could Teach Hollywood." The New York Times, 7 June 2006, C1, C5.

Every Move That You Make: Internet Privacy at Risk

Privacy advocates have good reason to worry about a recent flurry of activity related to Internet data retention by ISPs. (In this context, data retention means keeping records about subscribers and their Internet activities beyond what is required for normal business purposes.)

In late April, Colorado Representative Diana DeGette, a Democrat, drafted legislation that would require ISPs to retain data about their subscribers until one year after their accounts were closed (see "Congress May Consider Mandatory ISP Snooping" and "Backer of ISP Snooping Slams Industry").

Then, in Mid-May, it was reported that Wisconsin Representative F. James Sensenbrenner, the Republican chairman of the House Judiciary Committee, was drafting legislation to mandate Internet data retention (see "Congress May Make ISPs Snoop on You"). The Judiciary Committee’s Communications Director backpedaled a few days after this revelation, issuing a statement that said: "Staff sometimes starts working on issues—throwing around ideas, doing oversight—and (they) get ahead of where the members are and what they want to tackle" (see "ISP Snooping Plans Take Backseat").

In late May, the Attorney General was reported to be privately asking major ISP’s to "retain subscriber information and network data for two years" (see "Gonzales Pressures ISPs on Data Retention").

What does data retention mean for reader privacy in an era where users are increasingly turning to Internet-based information resources instead of print resources? It depends on what data is retained, whether the user is authenticated (e.g., some libraries provide unauthenticated public Internet access), and under what circumstances it can be revealed. Let’s assume for the moment that there is fairly detailed data retention (e.g., user A went to URL B), but not total data retention (e.g., user A went to URL B, where the content of B is also retained).

Determining what the user saw at a particular URL may be dependent on how static the content is. Formally published material is presumably static. Access barriers may temporarily prevent the disclosure of licensed and other protected content until such barriers can be overcome by legal means, but nothing stops the immediate disclosure of freely available, formally published static material. Dynamic information, formally published or not, may have changed since the user accessed it, but how much? Information that is not formally published could have simply vanished, but the Internet Archive may permit reconstruction of what the user saw, and, for freely available material, it may also overcome the problem of changing content. In short, it may now be possible, for mandated retention periods, to determine every e-article, e-book, or other e-resource that a reader has used down to the level of specificity that a URL represents (e.g., page views within an HTML-based e-book).

Stepping back, you might ask: How is this different from the familiar library check-out record privacy problem? The difference is that libraries do not check out journal articles and a variety of other materials, such as reference books. Moreover, libraries are not required to retain circulation records, and readers always have the option for unrecorded in-library use. In the digital age, if it’s online, its use can be recorded.

Consequently, reader privacy may be going the way of the dinosaur. Stay tuned.

"Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" Preprint

A preprint of my "Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" paper is now available.

It will appear in Information Technology and Libraries 25, no. 3 (2006).

This quote from the paper’s conclusion sums it up:

What this paper has said is simply this: three issues—a dramatic expansion of the scope, duration, and punitive nature of copyright laws; the ability of DRM to lock-down content in an unprecedented fashion; and the erosion of Net neutrality—bear careful scrutiny by those who believe that the Internet has fostered (and will continue to foster) a digital revolution that has resulted in an extraordinary explosion of innovation, creativity, and information dissemination. These issues may well determine whether the much-touted "information superhighway" lives up to its promise or simply becomes the "information toll road" of the future, ironically resembling the pre-Internet online services of the past.

For those who want a longer preview of the paper, here’s the introduction:

Blogs. Digital photo and video sharing. Podcasts. Rip/Mix/Burn. Tagging. Vlogs. Wikis. These buzzwords point to a fundamental social change fueled by cheap PCs and servers, the Internet and its local wired/wireless feeder networks, and powerful, low-cost software: citizens have morphed from passive media consumers to digital media producers and publishers.

Libraries and scholars have their own set of buzz words: digital libraries, digital presses, e-prints, institutional repositories, and open access journals to name a few. They connote the same kind of change: a democratization of publishing and media production using digital technology.

It appears that we are on the brink of an exciting new era of Internet innovation: a kind of digital utopia. Dr. Gary Flake of Microsoft has provided one striking vision of what could be (with a commercial twist) in a presentation entitled "How I Learned to Stop Worrying and Love the Imminent Internet Singularity," and there are many other visions of possible future Internet advances.

When did this metamorphosis begin? It depends on who you ask. Let’s say the late 1980’s, when the Internet began to get serious traction and an early flowering of noncommercial digital publishing occurred.

In the subsequent twenty-odd years, publishing and media production went from being highly centralized, capital-intensive analog activities with limited and well-defined distribution channels to being diffuse, relatively low-cost digital activities with the global Internet as their distribution medium. Not to say that print and conventional media are dead, of course, but it is clear that their era of dominance is waning. The future is digital.

Nor is it to say that entertainment companies (e.g., film, music, radio, and television companies) and information companies (e.g., book, database, and serial publishers) have ceded the digital content battlefield to the upstarts. Quite the contrary.

High-quality thousand-page-per-volume scientific journals and Hollywood blockbusters cannot be produced for pennies, even with digital wizardry. Information and entertainment companies still have an important role to play, and, even if they didn’t, they hold the copyrights to a significant chunk of our cultural heritage.

Entertainment and information companies have understood for some time that they must adopt to the digital environment or die, but this change has not always been easy, especially when it involves concocting and embracing new business models. Nonetheless, they intend to thrive and prosper—and to do whatever it takes to succeed. As they should, since they have an obligation to their shareholders to do so.

The thing about the future is that it is rooted in the past. Culture, even digital culture, builds on what has gone before. Unconstrained access to past works helps determine the richness of future works. Inversely, when past works are inaccessible except to a privileged minority, it impoverishes future works.

This brings us to a second trend that stands in opposition to the first. Put simply, it is the view that intellectual works are "property"; that this property should be protected with the full force of civil and criminal law; that creators have perpetual, transferable property rights; and that contracts, rather than copyright law, should govern the use of intellectual works.

A third trend is also at play: the growing use of Digital Rights Management (DRM) technologies. When intellectual works were in paper form (or other tangible forms), they could only be controlled at the object-ownership or object-access levels (a library controlling the circulation of a copy of a book is an example of the second case). Physical possession of a work, such as a book, meant that the user had full use of it (e.g., the user could read the entire book and photocopy pages from it). When works are in digital form and they are protected by some types of DRM, this may no longer true. For example, a user may only be able to view a single chapter from a DRM-protected e-book and may not be able to print it.

The fourth and final trend deals with how the Internet functions at its most fundamental level. The Internet was designed to be content, application, and hardware "neutral." As long as certain standards were met, the network did not discriminate. One type of content was not given preferential delivery speed over another. One type of content was not charged for delivery while another wasn’t. One type of content was not blocked (at least by the network) while another wasn’t. In recent years, "network neutrality" has come under attack.

The collision of these trends has begun in courts, legislatures, and the marketplace. It is far from over. As we shall see, it’s outcome will determine what the future of digital culture looks like.

Free, Legal Digital Audio Downloads (Courtesy of the Creative Commons)

In Darknet: Hollywood’s War Against the Digital Generation, J. D. Lasica tells the story of Tarnation, a documentary film that nominated for a Camera d’Or award (pg. 84). The film was made for $218.31 using a video camera and iMovie. One catch: Lasica says that getting permission to use brief commercial music and video segments in the movie cost around $400,000. Creating derivative works that use the entertainment industry’s copyrighted works is clearly not cheap, assuming that you can obtain permission to use them at all.

Imagine instead a world where you could download, play, and use digital media works for free without paying license fees. It may sound impossible, but that world is starting to be built using Creative Commons licenses.

The most liberal license of the six main Creative Commons licences is Attribution: "This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation."

The most restrictive license is Attribution Non-Commercial No Derivatives: "This license is often called the ‘free advertising’ license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially."

Here’s a brief guide to selected resources that will help you get started finding digital audio works licensed under Creative Commons licenses.

  • Creative Commons Audio Page: An excellent place to start. It has a search engine, featured audio Web sites, brief information about the Creative Commons Licenses, a list of sites where you can contribute audio works, and featured artists, tools, and works. See also: the Creative Commons Find page, where you can search for CC-licensed works using Google and Yahoo!.
  • ccMixter: "This is a community music site featuring remixes licensed under Creative Commons, where you can listen to, sample, mash-up, or interact with music in whatever way you want." Site tabs provide access to picks, remixes, samples, a cappellas, people, and extras.
  • Common Content: "Common Content is a catalog of works licensed in the Creative Commons, available to anyone for copying or creative re-use. The catalog includes over 3,848 records, many of which are collections which include hundreds or thousands of other works." Audio categories include ambient, music, samples, and speech.
  • The Freesound Project: "The Freesound Project is a collaborative database of Creative Commons licensed sounds. Freesound focuses only on sound, not songs." Sound clips are described, tagged (there’s a tag cloud for popular tags), geotagged, and rated (example: tibetan chant 4 colargol 2.aif). Site includes a "Remix! tree," sample packs, and user forum.
  • Indieish: Your Free Music Daily: Blog with CC-licensed music reviews.
  • jamendo: "On jamendo, the artists distribute their music under Creative Commons licenses. . . .jamendo users can discover and share albums, but also review them or start a discussion on the forums. Albums are democratically rated based on the visitors’ reviews. If they fancy an artist they can support him by making a donation." Site distributes albums using BitTorrent and the M3U playlist file format.
  • PodSafeAudio: "This site aims to provide a location where musicians can upload music under the Creative Commons License for use in Podcasts, Mashups, Shoutcasts, Webcasts and every other kind of ‘casting’ that exists on the ‘net." A complex site with many features, including track reviews,categorization of music by genre and rating, categorization of artists by genre and region, collaboration project listing, user forums, and a blog.

Customers Welcome RFID-Enabled Cards. . . with Hammers and Microwave Ovens

The Wall Street Journal reports that customers lack enthusiasm for RFID credit cards due to privacy and fraud concerns. In fact, they are devising novel ways to disable RFID chips, including using hammers and microwave ovens to smash or fry them. FoeBud, a German digital rights group, sells a variety of devices to detect or disable the chips. Sensing a hot market, some companies have joined the bandwagon with new products (e.g., RFIDwasher) that do the job more safely than a microwave oven, which can be a fire hazard when used for RFID frying. For those who don’t want to tamper with their RFID cards, they can buy shielded wallets and passport cases from DIFRWEAR that block signals when closed.

As libraries begin to embrace RFID technology, these concerns from the credit card sector may be worth watching, and it may give them pause.

Source: Warren, Susan. "Why Some People Put These Credit Cards in the Microwave." The Wall Street Journal, 10 April, 2006, A1, A16.

On the Internet Everyone Knows You’re a Dog (Bark Carefully)

A recent BusinessWeek article ("You Are What You Post") by Michelle Conlin may give Millennials (and everyone else) pause.

The article leads with a story about then 22-year-old Josh Santangelo’s 2001 posting on a dusty corner of the Internet about a bad drug trip. This caught the eye of super blogger Jason Kottke, and, after he linked too it, it became very popular. Now, Santangelo’s name pops up about 92,600 Google hits. Unfortunately, as the article states:

That was back when Santangelo was an up-all-night raver in giant pants and flame-red hair. Today he’s a Web development guy with a shaved head who shows up at meetings on time and in khakis. Clients have included such family-friendly enterprises as Walt Disney and Nickelodeon, as well as Starbucks, AT&T, and Microsoft.

And the business world is now tuned in to search engines as a rich source of information about potential employees:

Google is an end run around discrimination laws, inasmuch as employers can find out all manner of information—some of it for a nominal fee—that is legally off limits in interviews: your age, your marital status, the value of your house (along with an aerial photograph of it), the average net worth of your neighbors, fraternity pranks, stuff you wrote in college, liens, bankruptcies, political affiliations, and the names and ages of your children.

So, this could be trouble for those pouring out the intimate details of their personal and work lives on blogs, vlogs, social networking sites (e.g., MySpace), and other cool sites.

The article gives several amusing examples of employees fired for revealing too much on the Internet (amusing, that is, unless you’re the one fired).

Of course, there is the counter-notion that any publicity is good publicity. For example, celebrity sex tapes. A recent New York Times article ("Sex, Lawsuits and Celebrities Caught on Tape") by Lola Ogunnaike says about the Paris Hilton tape:

Ms. Hilton tried to stop distribution of the tape, although its notoriety paradoxically catapulted her to an even higher orbit of fame, establishing her as a kind of postmodern celebrity, leading to perfume deals, a memoir and the covers of Vanity Fair and W.

And, after discussing the latest round of celebrity sex tapes threatening to emerge, it says:

Celebrity sex tapes surface with such regularity that cynics question whether the stars themselves may be complicit, despite their efforts to suppress them in court, because of the publicity they bring.

However, this counter-notion may only apply to the already famous.

No doubt we’ll find out as part of a generation that’s digitally exposed itself on the Internet increasingly enters the workplace and competes within it.

An Important Partial Win for Google and Privacy

U.S. District Court Judge James Ware ruled on Friday that Google does not have to turn over 5,000 search queries to the Justice Department; however, it does have to turn over 50,000 random Web URLs.

The Google Blog posting ("Google Wins!") was ecstatic, stating that:

This is a victory for both online rights activists and users of Google. Google may not always be perfect, but this time they stood up for what is right.

According to an article in Red Herring ("Judge Limits US Data Hunt"):

The government’s subpoena originally told Google it must turn over massive amounts of data in two broad categories: all the URLs available on the company’s search engine as of last July 31, and all search queries entered into Google’s search engine during June and July of 2005. That likely would have included tens of millions of data points.

A San Francisco Chroncile article ("Google Must Divulge Data Judge Cuts Amount of Info Company Has to Give Feds") noted that:

Google, along with privacy advocates, argued that sometimes users can reveal personal information in search queries, including their Social Security Numbers. Or they can suggest the sexual preferences of public officials or use inflammatory phrases such as "bomb-making equipment," which would pique the interest of law enforcement. The privacy advocates said that the Justice Department couldn’t be trusted with access to such sensitive data, despite the administration’s promises to use the queries only for its online pornography case.

Judge Ware expressed concern about the impact of search-term disclose on Google due to user privacy issues:

The expectation of privacy by some Google users may not be reasonable, but may nonetheless have an appreciable impact on the way in which Google is perceived, and consequently the frequency with which users use Google. Such an expectation does not rise to the level of privilege, but does indicate that there is a potential burden as to Google’s loss of goodwill if Google is forced to disclose search queries to the government.

Digital Generation? Latest Breakdown of Web Users By Age Group

What age group uses the Web most heavily? The latest numbers may surprise you.

Here a ranking of unique Web site visitors by age group for February 2006:

  1. 50 and older: 47 million.
  2. 35-49: 42.5 million.
  3. 17 and under: 30.3 million.
  4. 25-34: 19.9 million.
  5. 18-24: 11.2 million.

Seventeen-and-under users are third; traditional college-age students are dead last. Digital generation? Geezers rule the Web.

Source: Etter, Lauren. "Google vs. Justice: Privacy, Pornography, Secrets." The Wall Street Journal, 18-19 March 2006, A7.

Gary Flake’s "Internet Singularity"

Dr. Gary William Flake, Microsoft technical fellow, gave a compelling and lively presentation at SearchChamps V4 entitled "How I Learned to Stop Worrying and Love the Imminent Internet Singularity."

Flake’s "Internet Singularity," is "the idea that a deeper and tighter coupling between the online and offline worlds will accelerate science, business, society, and self-actualization."

His PowerPoint presentation is text heavy enough that you should be able to follow his argument fairly well. (Ironically, he had apparently received some friendly criticism from colleagues about the very wordiness of the PowerPoint that allows it to stand alone.)

I’m not going to try to recap his presentation here. Rather, I urge you to read it, and I’ll discuss a missing factor from his model that may, to some extent, act as a brake on the type of synergistic technical progress that he envisions.

That factor is the equally accelerating growth of what Lawrence Lessig calls the "permission culture," which is "a culture in which creators get to create only with the permission of the powerful, or of creators from the past."

Lessig discusses this topic with exceptional clarity in his book Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (HTML, PDF, or printed book; Lessig’s book in under an Attribution-NonCommercial 1.0 License).

Lessig is a Stanford law professor, but Free Culture is not a dry legal treatise about copyright law. Rather, it is a carefully argued, highly readable, and impassioned plea that society needs to reexamine the radical shift that has occurred in legal thinking about the mission and nature of copyright since the late 19th century, especially since there are other societal factors that heighten the effect of this shift.

Lessig describes the current copyright situation as follows:

For the first time in our tradition, the ordinary ways in which individuals create and share culture fall within the reach of the regulation of the law, which has expanded to draw within its control a vast amount of culture and creativity that it never reached before. The technology that preserved the balance of our history—between uses of our culture that were free and uses of our culture that were only upon permission—has been undone. The consequence is that we are less and less a free culture, more and more a permission culture.

How did we get here? Lessig traces the following major changes:

In 1790, the law looked like this:

  PUBLISH TRANSFORM
Commercial © Free
Noncommercial Free Free

The act of publishing a map, chart, and book was regulated by copyright law. Nothing else was. Transformations were free. And as copyright attached only with registration, and only those who intended to benefit commercially would register, copying through publishing of noncommercial work was also free.

By the end of the nineteenth century, the law had changed to this:

  PUBLISH TRANSFORM
Commercial © ©
Noncommercial Free Free

Derivative works were now regulated by copyright law—if published, which again, given the economics of publishing at the time, means if offered commercially. But noncommercial publishing and transformation were still essentially free.

In 1909 the law changed to regulate copies, not publishing, and after this change, the scope of the law was tied to technology. As the technology of copying became more prevalent, the reach of the law expanded. Thus by 1975, as photocopying machines became more common, we could say the law began to look like this:

  PUBLISH TRANSFORM
Commercial © ©
Noncommercial ©/Free Free

The law was interpreted to reach noncommercial copying through, say, copy machines, but still much of copying outside of the commercial market remained free. But the consequence of the emergence of digital technologies, especially in the context of a digital network, means that the law now looks like this:

  PUBLISH TRANSFORM
Commercial © ©
Noncommercial © ©

Lessig points out one of the ironies of copyright law’s development during the last few decades: the entertainment industries that have been the driving force behind moving the law from the permissive to permission side of the spectrum benefited from looser regulation in their infancies:

If "piracy" means using value from someone else’s creative property without permission from that creator—as it is increasingly described today—then every industry affected by copyright today is the product and beneficiary of a certain kind of piracy. Film, records, radio, cable TV. . . . The list is long and could well be expanded. Every generation welcomes the pirates from the last. Every generation—until now.

Returning to Flake’s model, what will the effect of a permission culture be on innovation? Lessig says:

This wildly punitive system of regulation will systematically stifle creativity and innovation. It will protect some industries and some creators, but it will harm industry and creativity generally. Free market and free culture depend upon vibrant competition. Yet the effect of the law today is to stifle just this kind of competition. The effect is to produce an overregulated culture, just as the effect of too much control in the market is to produce an overregulated-regulated market.

New knowledge typically builds on old knowledge, new content on old content. "Democratization of content" works if the content is completely new, if it builds on content that is in the public domain or under a Creative Commons (or similar) license, or if fair use can be invoked without it being stopped by DRM or lawsuits. If not, copyright permissions granted or withheld may determine if a digital "Rip, Mix, Burn" (or as some say "Rip, Mix, Learn") meme lives or dies and the full transformational potential of digital media are realized or not.

If you are concerned about the growing restrictions that copyright law imposes on society, I highly recommend that you read Free Culture.

The Sony BMG Rootkit Fiasco Redux

There’s a new development in the Sony BMG Rootkit story (for background see my prior posting and update comment): Sony BMG has reached a settlement (awaiting court approval) regarding the class action lawsuit about its use of DRM (Digital Rights Management) software after virtual "round-the-clock settlement negotiations" (on December 1st numerous individual lawsuits were given class action status). The short story is that XCP-protected CDs will be replaced with DRM-free CDs and customers will be given download/cash incentives to exchange the disks; no recall for MediaMax-protected CDs, but buyers will get song MP3s and an album download. You can get details at "Sony Settles ‘Rootkit’ Class Action Lawsuit."

Since my December 4th update comment, there have been a few articles/blog postings of note about this controversy. "Summary of Claims against Sony-BMG" provides an analysis by Fred von Lohmann of EFF of "the various legal theories that have been brought against Sony-BMG over the CD copy-protection debacle." In "Sony CDs and the Computer Fraud and Abuse Act," Ed Felten considers whether Sony BMG, First4Internet, and SunnComm/MediaMax "violated the Computer Fraud and Abuse Act (CFAA), which is the primary Federal law banning computer intrusions and malware" (he notes that he is not a lawyer), and, in "Inside the MediaMax Prospectus," he highlights some interesting aspects of this document. "New Spyware Claim against Sony BMG" describes a new claim added to the Texas lawsuit by Attorney General Greg Abbott: "MediaMax software . . . violated state laws because it was downloaded even if users rejected a license agreement." Finally, "Just Let Us Play the Movie" examines the fallout for the film industry and DRM use in general.

In other recent IP news, two items of interest: "France May Sanction Unfettered P2P Downloads" (mon dieu!) and "Pro-Hollywood Bill Aims to Restrict Digital Tuners."

Machinima

Here’s an interesting trend: using video games to create animated digital films. It’s called "Machinima." In one technique, the 3-D animation tools built into games to allow users to extend the games (e.g., create new characters) are used to generate new 3-D films. Of course, it can be more complicated than this: the Machinima FAQ outlines other strategies in layperson’s terms.

BusinessWeek has a short, interesting article on Machinima ("France: Thousands of Young Spielbergs") that describes one social commentary Machinima film (The French Democracy), noting that it got over one million hits in November. It also quotes Paul Marino, executive director of the Academy of Machinima Arts & Sciences as saying: "This is to the films what blogs are to the written media."

If you want to check out more Machinima films, try the 2005 Machinima Film Festival or Machinima.com (try "download" if "watch" doesn’t work).

Machinima is yet another example of how users want to create derivative works from digital media and how powerful a capability that can be—if intellectual property rights owners don’t prohibit it. Since the first Machinima movie was created in 1996, it appears that the video game industry has not moved to squash this movement, and, needless to say, it has thrived. However, this state of affairs may simply reflect Machinima’s low profile: A recent Wired News article, which notes that Machinima has been employed in commercials and music videos, indicates that Doug Lombardi, Director of Marketing at Valve (a video game software company), feels that: "As the films become commercially viable, machinima filmmakers are going to butt up against copyright law."

The Sony BMG Rootkit Fiasco

When Mark Russinovich posted "Sony, Rootkits and Digital Rights Management Gone Too Far," he helped trigged a firestorm of subsequent criticism about Sony BMG Music Entertainment’s use of the First4Internet’s digital rights protection software on some of its music CDs. It was bad enough that one of the planet’s largest entertainment companies was perceived as hacking users’ computers with "rootkits" in the name of copy protection, but then the EFF posted an analysis of the license agreement associated with the CDs (see "Now the Legalese Rootkit: Sony-BMG’s EULA"). Things got worse when real hackers started exploiting the DRM software (see "First Trojan Using Sony DRM Spotted"). Then the question posed by the EFF’s "Are You Infected by Sony-BMG’s Rootkit?" posting became a bit more urgent. And the lawsuits started (see "Sony Sued For Rootkit Copy Protection"). Sony BMG suspended production (see "Sony Halts Production of ‘Rootkit’ CDs"), but said it would continue using DRM software from SunnComm (see "Sony Shipping Spyware from SunnComm, Too"). Among others, Microsoft said it will try to eradicate the hard-to-kill DRM software (see "Microsoft Will Wipe Sony’s ‘Rootkit’").

What would drive Sony BMG to such a course of action? Blame that slippery new genie, digital media, which seems to want information to not only be free, but infinitely mutable into new works as well. Once it’s granted a few wishes, it’s hard to get it back in the bottle, and the one wish it won’t grant is that the bottle had never been opened in the first place.

Faced with rampant file sharing that is based on CDs, music companies now want to nip the rip in the bud: put DRM software on customers’ PCs that will control how they use a CD’s digital tracks. Of course, it would be better from their perspective if such controls were built in to the operating system, but, if not, a little deep digital surgery can add lacking functionality.

The potential result for consumers is multiple DRM modifications to their PCs that may conflict with each other, open security holes, deny legitimate use, and have other negative side effects.

In the hullabaloo over the technical aspects of the Sony BMG DRM fiasco, it’s important not to lose sight of this: your CD is now licensed. First sale rights are gone, fair use is gone, and the license reigns supreme.

Pity the poor music librarian, who was already struggling to figure out how to deal with digital audio reserves. Between DRM-protected tracks from services such as iTunes and DRM-protected CDs that modify their PCs, they "live in interesting times."

While the Sony BMG fiasco has certain serio-comic aspects to it, rest assured that music (and other entertainment companies) will eventually iron out the most obvious kinks in the context of operating systems that are designed for intrinsic DRM support and, after some bumps in the road, a new era of DRM-protected digital multimedia will dawn.

That is, it will dawn unless musicians, other digital media creators, and consumers do something about it first.

The Supremes Landmark Ruling on MGM vs. Grokster

The Supreme Court has ruled against Grokster. See "Supreme Court Rules against File Swapping" and "Court: File-Sharing Services May Be Sued" for details. For background information, see "File-Swap Fallout in Supreme Court Ruling" and the EFF’s MGM v. Grokster page. For in-depth discussion of the underlying issues, see Darknet: Hollywood’s War Against the Digital Generation and Sonic Boom listed at "Digital Works Want to Be Free ."

The key quote in the ruling is:

For the same reasons that Sony took the staple-article doctrine of patent law as a model for its copyright safeharbor rule, the inducement rule, too, is a sensible one for copyright. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. We are, of course, mindful of the need to keep from trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential. Accordingly, just as Sony did not find intentional inducement despite the knowledge of the VCR manufacturer that its device could be used to infringe, 464 U. S., at 439, n. 19, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.

The EFF provides other key quotes.

Here’s an interesting take on the ruling: "File-Sharing Decision Hardly Apocalyptic".

ARL issued a statement for the Library Copyright Alliance that said:

The Library Copyright Alliance (LCA)­a group composed of the American Association of Law Libraries, American Library Association, Association of Research Libraries, Medical Library Association, and Special Libraries Association ­welcomes this balanced decision that supports the interests of libraries while addressing issues of widespread copyright infringement. By focusing on conduct that induces infringement, rather than on the distribution of technology, the decision ensures the continued availability of new and evolving digital technologies to libraries and their patrons.

The Center for Democracy and Technology’s press release said:

The court has worked to craft careful balance that allows copyright owners to pursue bad actors, but still protect the rights of technology makers. We hope this decision will preserve the climate of innovation that fostered the development of everything from the iPod to the Internet itself.

The EFF was less sanguine in their press release:

This decision relies on a new theory of copyright liability that measures whether manufacturers created their wares with the “intent” of inducing consumers to infringe. It means that inventors and entrepreneurs will not only bear the costs of bringing new products to market, but also the costs of lawsuits if consumers start using their products for illegal purposes.

And, of course, many bloggers weighed in as seen in Eric Goldman’s roundup, the lively discussion on SCOTUSblog, and the tsunami of comments on Slashdot.

According to "Congress Applauds File-Sharing Ruling" Congress is unlikely to take any immediate action as a result of the ruling.

Robert Summer, former head of the Recording Industry Association of America and former president of Sony Music International, said of the music industry reaction to the verdict: "The response across the board was one of elation."