When I buy a piece of media, whether it’s a book or movie or piece of music, I’d like to be able to enjoy it wherever I want on whatever device I want, without having to rebuy it. It’s already accepted that once you buy a CD you can rip it to your iPod. Ripping movies to your iPod is getting there. What about books? What about software?

In the prior two examples it’s easy for the buyer to transcode. It’s automated. It takes hard work to turn a book into an ebook, so I can understand why companies like O’Reilly charge extra for a book that comes with an ebook; but what if the community were to make the ebooks for free? What if developers would port software for free?

I’d like to talk about my old days on irc.bookwarez.org. It hosted a public channel where people traded in versioned text, HTML, LIT, and any number of formats of ebooks that they painstakingly scanned, OCRed and proofread. In many cases they also annotated. The downside to this arrangement is that it could result in lost sales.

What if O’Reilly gave you a free copy of a community contributed ebook with purchase of ebook, or let you buy a bundle with a professionally created copy? Amazon could give you a choice of a book bundle with a community made ebook at no extra charge, or a Kindle copy at a modest surcharge.

Software is a trickier issue. People are again willing to make free versions of games that use official resources for platforms that aren’t officially supported as we see with Freeciv and Frets on Fire but these are reinventions of the wheel rather than tweaked copies. Closed source ports are near impossible to make and the producers these days are unlikely to let their source out.

Projects like Freeciv skirt the same thin line that game console emulators do: the creators of the original don’t like them, but there isn’t much to do if they don’t copy anything. Except when Sony bankrupted the creators of Bleem! under legal costs. Producers of resource-compatable clones seem to be safe as long as they don’t sell their work.

The issue with software has been mostly solved. The community can release clones with little fear. The problem remains with works that have to be copies, not remakes, and are difficult to translate from one format to another. Right now the best example is books. Creative Commons is both libre and gratis. I know that the makers of some of my favourite works will never publish gratis. As a middle ground what I want to see is a scheme that’s libre but not gratis so I can buy something once and enjoy it however I like.

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Just over a year ago the suit against Turnitin.com reached its first decision. The appeal has just been released and analyzed by the folks of Ars Technica.

First off I’m pleased that the legal decision is OCR’d this time so I can copy and paste pieces more easily. The appeal reaffirms that turnitin.com’s use was transformative even though it did not modify the copies, and also fair use. Among other things the legal decision spells out why the ability of a third party to download full papers by searching for a common phrase was not considered.

Plaintiffs also alleged that the Turnitin system offends copyright law because it “may send a full and complete copy of a student’s unpublished manuscript to an iParadigms client anywhere in the world upon request of the client, and without the student’s permission.” J.A. 22. Plaintiffs, however, have not produced any evidence to demonstrate that this occurredwith respect to the plaintiffs’ works at issue here. Accordingly, we confine our review of the copyright issues to iParadigms’ practice of archiving documents.

There’s no evidence that the described copyright infringement occurred so it won’t be considered. I expected it wasn’t considered because that would be the downloader’s fault, not the service’s.

See the Ars Technica article or my previous post for a more detailed analysis.

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I’ve always been interested in public domain content as a way of reducing cost for students and also as a fertile ground to build new content. I thought that I was in the loop when it came to copyright-expired content. Seems I missed a couple of very interesting developments.

First of all, there’s a public domain registry in Canada that’s under development. The news release [PDF] came out March 3rd, 2006 and I only heard of it through Michael Geist’s site recently. The site is dedicated to helping people figure out whether a published work is still within or has fallen out of copyright protection. It leaves cataloguing content that was released as public domain to sites such as archive.org.

Second, the Boston Public Library will scan any book they have and send the scanned copy to you within seven days. They’ll even use optical character recognition (imperfect, but still) to send you a plaintext copy. They call the service scan-on-demand.

The public domain registry is something that I’m happy to see. Figuring out copyright status is something that’s complicated operations at Project Gutenberg Canada for a while, and now they’re getting support of Access Copyright. Glad to see a rights organization help out for the public good. The scan-on-demand feature is something I’d never even dreamed of but sounds extremely cool and goes hand in hand with the public domain registry when sourcing content.

On whether makers of P2P software would face liability.
Henderson: Who do we go after? … You want to be able to go after a major. If you have torrent sites like, Pirate Bay for example, that’s who you want to target.

On China issue: Impact on issue of IP Rights. Different philosophy and different legal framework. Eg. of cell phone networks as largest distributor of software.
Mcteague: Bigger issue than forcing policy on China is dealing with counterfeits that arrive in Canada.

To EMI: Consumer or enabler.
EMI: Never going after the consumer. Not the Canadian way. Canada in particular found an interest in “education.” Education didn’t work. Now work through gov, trying to make consumers happy.

Post-sec: What do you do about educational use?
Answer: Lack of understanding of what is infringement. Movements towards best practices.

If I did have a recorded copy it would be to suss out something that I think I heard Henderson of CRIA say in the closing comments. I may be imagining things, but what he said sounded like something from Lessig at first.

Update: Michael Geist attended. He has a much better write up.

I really shouldn’t have been surprised that the audiobook was fan narrated. This is just the sort of thing that the creative commons derivatives-okay license was intended to allow. Even though I’ve been watching the efforts of the like of Project Gutenberg and LibriVox I’m not really sure why these people volunteered their time.

Since their work was noncommercial they didn’t need the authors permission, they just started reading and put together some MP3s. The audiobook is released under the same license terms.

Did the narrators do it out of appreciation to the author? To kill a lazy Sunday? For credit in the readme?

For some reason it feels odd to volunteer and freely release value added to a book that’s still being sold.

I’m on Bell’s $7 unlimited browsing plan. The Terms of Service clearly state that streaming audio is not allowed. It’s one of those clauses that they use to terminate accounts that go over some sliding limit of profitable bandwidth use. Since this month I had only used four megabytes and the average for killed accounts seems to be about two thousand, I decided to push my luck. I decided to forego my iPod in favour of my HTC Touch and Windows Media Player. (The Touch is notable as being the only smartphone able to get a consumer unlimited data plan in Canada.)

My stream of choice was Digitally Imported’s Trance stream. I gave it a go at home on the 96 kilobit WMA stream and was surprised to hear very choppy music with the default buffering. I benchmarked my phone at an average download of 400 kilobit over download, and now it can’t take 96 kilobit? I double checked and Windows Media Player was set for a 384 kilobit cellular connection. When using TCPMP I was able to get 96 kilobit MP3 reliably without any changes to buffer settings but I spent most of the day using WMP.

I set myself up for 40 kilobit music stream. It played on my phone just fine with the basic Windows Media Player that came with the device. Next up: Getting this music through my headphones.

This was trickier. The phone itself has no headphone jack. It does come with a gadget that splits the USB mini jack into USB jack and what they label a headphone jack. It’s not your standard 8mm jack, it’s about the same size as a USB-mini jack but asymmetric and skewed. I assume it’s some jack that’s meant for cellular headsets. There’s also a converter to something sub-8mm that I found useless. Into this splitter I plugged in a pair of earphones with the skewed adapter that came with the Touch.

At 40 kilobit I was able to walk around downtown Toronto towards campus with no skips or bumps. Instead of being pleased with this I was just disappointed that I couldn’t use my own headphones. It’s impossible to give a good judgement of sound quality here.

Even in a noisy environment I’m able to tell the difference between 40 kilobit WMA and 96 kilobit WMA when using the pair of AKG K27i headphones I use for walkabouts. And that’s not even considering the pair of Sennheiser HD555 that I use for home enjoyment of music. On the pair that came with the device I couldn’t tell between 40 kilobit and 96 kilobit in a quiet environment, and I haven’t figured out how to connect my real headphones yet.

So far the only thing I can say is it’s a pain.

It played out differently than what I expected. First off, Turnitin’s use was considered transformative and fair use. That’s not a huge surprise. Also, the fact that a user could enter in a Shakespearian quotation and receive a full copy of a student’s paper who used it was not brought into the case. I guess that’s because the user would be infringing, not Turnitin.

The big surprise for me was that the minors were held to the contract that they clicked through, and it was not found to be agreeing under duress. Apparently in Virginia it’s not duress if pressed by a third party (the schools in this case), and even if it were it fell short of the “unlawful or wrong act” test. Besides that, Virginia law has interesting nuances when it comes to minors entering contracts.

Taken from the decision:

…

In Virginia, a contract with an infant is voidable by the infant upon attaining the age of majority. See Zelnick v. Adams, 263 Va. 601, 608 (2002) (citing Mustard v. Wohlford’s Heirs, 56. Va, (15 Gratt.) 329, 337 (1859)). However, the infancy defense cannot function as “a sword to be used to the injury of others, although the law intends it simply as a shield to protect the infant from injustice and wrong.” MacGreal v. Taylor, 167 U.S. 688, 701 (1897). In other words, “[i]f an infant enters into any contract subject to conditions or stipulations, he cannot take the benefit of the contract without the burden of the conditions or stipulations.” 5 Williston on Contracts 9:14 (4th ed. 2007).

Plantiffs received benefits from entering into the Agreement with iParadigms. They received a grade from their teachers, allowing them the opportunity to maintain good standing in the classes in which they were enrolled. Additionally, Plaintiffs gained the benefit of good standing to bring the present suit. Plaintiffs cannot use the infancy defense to void their contractual obligations while retaining the benefits of the contract. Thus, Plaintiffs’ infancy defense fails.

…

Wow. Standing to sue is considered a benefit? If that was the only reason that the infancy defense was rejected I’d be very upset.

More details are at Ars Technica.

Well, everyone else thought so too, and his site went down under load. He posted a link to Amazon’s music store so his fans could still buy the album, but I decided that I’d wait until Reznor’s site went back up so he could get a bigger cut of my $5. I’m very slowly downloading Ghosts I-IV from the official site now.

I decided to check out the Amazon store too, and after sampling Y34RZ3r0r3mix3d I decided to buy it. Here’s what I saw.

So I can’t buy the album, yet I can install the downloader? Why do you want me to install a downloader that’s useless to me, Amazon? Ah well. I’m impressed that they offered a Linux version, even though I still don’t know why they require you to use a downloader to grab unprotected music.

Out of curiosity I attempted to buy the album anyways. Amazon asked me for a new American billing address. I didn’t think it would be a good idea to try to fake one with my Canadian credit card so I gave up.

With that avenue closed off to me I looked to iTunes. A dollar more expensive, and laden with DRM. Wonderful. I guess I won’t be buying Y34RZ3r0r3mix3d after all, but I’m very happy with Ghosts.

Part of the problem with DRM is that it doesn’t allow for any uses but preconceived ones. If I were to try to make a tool that given a small video clip would suggest where it came from, I wouldn’t be able to do that.  Further, I shouldn’t need to compensate the rights owners as this doesn’t make a copy of their work, only generates signatures.

Compare that to my stance on Turnitin.com.

There’s lots of problems with Turnitin. I didn’t expect that anyone would be scouring my content to check my essays against later. For another thing, it upsets me that the company can make money off my back and I can’t say no or see a cent from it.

I can’t reconcile these two standards. I’m going to grudgingly accept Turnitin’s existence and cut DRM proponents a little bit of slack from now on.

From the article,

He points out that Canadian labels have not chosen to sue their fans, but then goes plaintive for a moment, saying, “We get absolutely zero credit for that.”

The problem is that CRIA did chose to sue their fans. They sued twenty nine of them but the case failed. This isn’t the first time that Graham Henderson has given a similar denial either.

How is this quotation truthful? Maybe labels didn’t chose to sue, but CRIA did so without representing them? Maybe he misspoke and meant to say that “labels chose not to sue after our failed attempt”? Did Nate misquoted him?

In any case, CRIA deserves no credit for not suing fans. I’m only grateful that they haven’t managed to do so on the scale of the RIAA and stopped after their first lawsuit.