Something that's proving popular with politicians running out of ideas for tackling unauthorized sharing of copyright materials online is to make ISPs and Web sites responsible for the actions of their users -- even though nobody would think of doing the same for telephone companies. SOPA was one of the best-known examples of this approach, and now it looks like Russia wants to join the club:
The cyber crime department of Russia’s Interior Ministry says it intends to get tough on the country’s ISPs when their customers share copyrighted or otherwise illegal material. Authorities say they are currently carrying out nationwide checks on ISPs' local networks and could bring prosecutions as early as next month.
The proposed legislation is a little unusual in that it seems to concern the exchange of unauthorized copies of copyright material across ISPs' local networks:
These networks, present within the ISPs’ own infrastructure, provide users’ access to a wealth of legal content and services such as Internet Relay Chat, but inevitably unauthorized content is available too.
As would have happened with SOPA, the inevitable consequence of passing this kind of law will be round-the-clock surveillance of Internet users by their ISPs -- not because the law requires it, but because the ISPs would be crazy not to given the financial risks they would run otherwise. The other knock-on effect, of course, is that people will just start swapping 2Tbyte portable hard discs full of unauthorized material by hand, bypassing the networks completely.
Plenty of people complain about how pop music sounds formulaic and that several boy bands seem to be manufactured with minimal variations between them. Someday soon, though, computer algorithms might create more pop music than humans can even attempt to compose. Here are just a few steps towards a world filled with machine-made music.
Erin McKeown, a wonderful musician who has been very involved in some discussions on copyright and internet access -- and who was especially helpful in the fight against SOPA -- recently wrote the following thoughtful, heartfelt piece concerning the emotional roller coaster of having someone copy your work, and how all of this relates to copyright law.
I always knew my song "Slung-lo" was a hit.
It just took longer than I expected.
"Slung-lo" came out on my 2003 album, grand (Nettwerk). It found its way to the Brittany Murphy masterpiece "Uptown Girls" and into episodes of "Roswell", "Gilmore Girls", and "Privileged". It also found its way into a Tesco F&F commercial, which ran in the Czech Republic in the summer of 2008. Though not a hit by any means, it was a remarkably long life for a song that came out in 2003.
And then last year, I received two separate emails through my website pointing me to this video for a song called "Touch The Sun" sung by the Czech artist, Debbi. (editor's note: we tried to embed the official video for this song, but Sony Music refuses to allow an embed on the song).
"Have you seen this?" both emails asked. I hadn't.
From the first moment I heard "Touch The Sun," it was as clear to me as anything that someone had taken the DNA of my song "Slung-lo" and turned it into another song. At this point, my lawyer wants me to make very clear that IN MY OPINION, THIS IS COPYRIGHT INFRINGEMENT.
I don't want to spend a lot of time technically breaking down the two songs, but I'd like to point out a few things. Among the many substantial similarities between them, check out the lyrical content (weather as metaphor for happiness), the almost exact song structure (solo verse, band verse, double-tracked vocal in the chorus...), and the vocal cadence in unison with the descending instrumental line in the chorus. I could go on.
Debbi's "Touch The Sun" isn't the proverbial "kid in the bedroom with a laptop" who remixes pop culture and makes mash-ups to show how alike we humans really are. No, it turns out the song was written for a commercial scale beer campaign by the giant European alcohol company Metaxa, which itself is a subsidiary of the global beverage conglomerate Remy Cointreau.
And it is a hit. A huge one. Debbi was the runner up on the Czech version of the "Idol" franchise. The song won "Song of the Year" at the Czech version of the Grammys. The original video that was sent to me has almost a million hits. A quick search of YouTube reveals karaoke versions, animations, "how to play versions," and plenty of people in their bedrooms playing the song and singing along. The beer ad with the song aired across the Czech Republic more than 1200 times in September of 2010. That's about 40 times a day.
So, after all this time, "Slung-lo" is finally a hit.
The easy part of this story is that I work with an amazing publishing administrator, Duchamp, who has stepped in to help me. We've retained Czech council who have been in contact with Metaxa, Debbi's record label (Sony!), and the Slovak production house that produced the track. All have denied any infringement, declined to settle, and at this point, court proceedings have started. My lawyers estimate that this could take anywhere from one to five years.
This spring Remy re-launched the ad campaign across all of Europe.
By the way, the writers are Tomas Zubak, Peter Graus, and Maros Kachut. Let's #kony2012 them.
Actually let's not.
Instead, I want to talk about the whole host of emotions this experience has brought up for me, and the way it's forced me to confront and articulate my beliefs about copyright.
After watching the video for the first time, I was certifiably apoplectic. I was physically shaking with anger. How dare they! I wasn't so much angry at Debbi -- who, from what I eventually read, really just sang the damn thing -- as I was at the writers. They had to know what they were doing, I fumed. I mean, the song was just in a commercial there. They had to know about it. How dare they!
And then I felt small. I'm nobody, I thought, so they probably figured they could get away with it. It's not like they ripped off Beyonce. Just small-time me.
And then I felt defeated. I've always wanted to have a hit like "Touch The Sun". And I thought I wrote one in 2003. It was such a great disappointment to me that no one noticed. There will never be enough people to notice me, I thought.
And then, I would find myself dreaming. Maybe I'll get a settlement. Maybe it will be large enough to make all my problems go away. I'll be able to pay for my new record. I'll be able to afford the best marketing and publicity money can buy. And then there will be some left over to buy a house. My life will change!
Finally, I disconnected. I couldn't tell very many people about what was happening, and the feelings were overwhelming me. Ok, I thought, I'll just let the lawyers do their lawyer thing. This is why you pay them. I am powerless. Breathe deep and exhale.
Very early in the process, my lawyers asked me what I wanted to be the goal of my settlement. Did I want 100% of the money made? Did I want a flat fee? How much? Did I want a public apology? Did I want to let it go? Did I just want credit?
These questions became a spiritual exercise. I began to think that how I answered them said something about who I was as a person.
I believe that creativity is an unpredictable, mysterious process. I often have no idea where a song comes from. Other times I am more aware of the hard work. It is not always an easy thing to know where influence ends and mimicry begins. But there is also a way we recognize ourselves in the faces of our children, and a gut instinct that tells me when I am hearing my own musical fingerprint.
I thought for awhile, and decided I would like 50% of all the monies made so far, and 50% on everything moving forward. I didn't need a public apology. I think this is fair, not punitive, and given the current copyright law system and options available to me, a reasonable request.
Now I just have to wait one to five years to see how it turns out.
Recently, I've ended up doing a lot of advocacy and policy work around copyright. This isn't because I am a copyright crusader, for or against, but because the issue gets tied up with so many other things I care about: media access, fair compensation for artists, creating a sustainable music business.
I actually hate to talk about copyright because, once it's brought up, it just seems to take over any conversation. Most of the time I feel like that conversation then becomes counterproductive. People throw around complex legal principles. The jargon resembles a foreign language. Often, the emotions get so heated that a room ends up divided at just the time when we need to work together. I've also noticed that most of the people crowing about copyright aren't individual copyright holders. They're groups of people who make money from the business of policing and administering copyright.
In my advocacy, I want to talk scale. I want to talk relationships and power structures. I want to talk about technology. Copyright is part of this, but it's not the whole enchilada. I've come to think that current copyright law is like an immovable boulder in the middle of a rushing river. It's not likely to change, so I'm going to have to work with it, as it is. And not let it stop other important work.
Yet here I am facing a difficult situation where copyright is the main issue.
I recently watched Kirby Ferguson's "Everything Is A Remix" series and found it really helpful to understand the feelings that came up for me around "Touch The Sun." In part four, Kirby makes the observation that we humans are easily and freely influenced and inspired by the world around us. However, when we feel like something has been taken from us, we get very angry and indignant. Our anger is as natural and essentially human as is our borrowing or being influenced.
Really how I feel about copyright is this: can you please just ask me? I am so easily found. One or two clicks, a badly mangled combination of "erin" and "mck" will get you to me. Let me know what you're doing. Let's talk. Take some time and connect with me. I know this is imperfect. Sometimes in the creative economy, there just isn't time. But how about we try?
I'd also like us all to acknowledge that the current copyright system, the unmovable boulder in the stream, rather than protecting rights holders and acting as a deterrent to infringement, is in its very complications a shelter for those who use others' material without permission and an obstacle to those who would like to legally use or remix content. Whether it is done consciously or unconsciously, nefariously or in communal bliss, given the complicated, arcane process, the myriad hoops to jump through, the length and cost of the process, who can afford to participate?
So Tomas, Peter, and Maros, I won't assume your motives in turning my song "Slung-lo" into "Touch The Sun." Instead, I'll say this: if you asked me, we might have worked something out. When I found you, we might have worked something out. Who knows, maybe we could have advanced the conversation around copyright and made a radical contribution toward a different type of economy. Instead, it will drag on in court. And I will fight it in court as long as I have to. But this could have gone another way. And for that, I am sad.
Erin McKeown is an internationally known musician, writer, and producer, releasing 8 full length albums in the last decade and spending an average of 200 nights a year onstage. She has appeared on Later with Jools Holland, Late Night with Conan O'Brien, NPR, BBC, and has had numerous film, television, and commercial placements. She's even written a song via text message with her friend Rachel Maddow. Lately, she has added mentor and activist to her resume. She is a board member at the Future of Music Coalition and a 2011-12 fellow at the Berkman Center for Internet and Society. Visit her website www.erinmckeown.com for more info and to join her mailing list.
Special Thanks to Mike King, Andy Sellars, my lawyers, Lawrence Stanley and Vaclav Schovanek, and Erik Gilbert at Duchamp for their help researching and proofing this post.
When I wrote about the failings of JK Rowling's Pottermore ebook store, reaction was mixed. Most sources were praising Pottermore for striking out and demonstrating a new model for publishing, but I wanted to forget the business side for a moment and ask whether the customers were truly receiving any benefit. To add some contrast to this discussion, we can compare it to Discover a New Love, a new romance ebook club launched by independent publisher Sourcebooks (found Through PaidContent). It isn't a direct analog to Pottermore but demonstrates the reason to buy that Rowling's store mostly lacks. For ten bucks a monthper six months, members get one free romance ebook monthly, discounts on other ebooks, and a whole bunch of extras:
The initiative also aims to build community: Sourcebooks will hold parties for members at the major romance conferences, and is also offering
Member-only blog chats with our authors, editors, cover artists and more.
Special “Romance Insider” events for you to help events shape the future of romance publishing including focus groups, panel discussions, surveys and more.
A forum for discussing your favorite authors, books, heroes, heroines, and sex scenes with other members of the community
Member-only content from about our authors and upcoming titles.
Access to member-only special offers, contests, and give-aways
That's how you entice fans: by connecting with them, building a community, and offering that community things that they can't get anywhere else. Now, obviously there are some key differences between this and Pottermore. The Sourcebooks titles will still be directly available through other channels like the Kindle store, and the book-a-month model doesn't really work for a finished series like Harry Potter. But the parallels are striking too: both romance novels and Potteresque megafranchises represent bright spots in the publishing industry, and their escapist nature breeds ravenous fanbases. A Harry Potter book club that offered meaningful perks would certainly be a breakaway hit (of course, as expected because of the extreme popularity of the franchise, Pottermore is still doing pretty well). Apparently the broader Pottermore website (still in beta, promised for early this month) will provide some community-focused incentives, and hopefully that will turn the store into something more relevant to readers—but for now, Discover a New Love provides a good example of how to reward your customers with a true reason to buy.
Minecraft developer Markus Persson, better known as notch, made headlines last year when he proposed to settle a trademark dispute with Bethesda with a Quake 3 match. Now, in yet another example of how being open, human and awesome is the best response to "problems" like piracy, Ashley Sheridan points us to two recent tweets on notch's feed:
Notch is well known for not worrying too much about piracy or believing in "lost sales", and the staggering success of Minecraft speaks for the wisdom of that attitude. It also goes to show that, despite what critics claim, accepting the reality of piracy doesn't mean letting any and all activity run rampant. When you threaten people, or send lawyers after them, they might get scared but they will definitely get defensive (and not like you very much). But by reaching out to the guy, notch had a friendly exchange and the pirate site came down (plus what I assume will be an epic Quake battle on q3dm17, which I gather from Google is some sort of badass space platform map). Are there other pirates who would have ignored notch or set up shop elsewhere? Probably—but they will always find a way to do what they do. Indeed, some people will always be jerks/idiots/dumb kids too, as some of the reactions to the disappearance of the site showed—which notch recognizes, so he took it in stride:
It sucks that some people are like that, but attacking them sure isn't going to change them. It's a waste of time, and can cause people to threaten and drive away pirates like the one with whom notch reached a friendly resolution.
We've been pointing out for a while that copyright is not property and that infringement is not theft. And yet... some people can't seem to let this go -- insisting that both claims are true. Of course, one retort from our side of the discussion is the simple fact that you don't see people who copy content being charged with "theft." However, in a case that received plenty of publicity involving a Goldman Sachs employee who had copied some code from the company, he was actually charged with theft. In response, however, a 2nd Circuit appeals court panel has said he was wrongfully charged, because code is not property. The court specifically cites the Dowling case, which we've discussed on many occasions, which makes clear that infringement is a different beast than theft.
The infringement of copyright in Dowling parallels Aleynikov’s theft of computer code. Although “[t]he infringer invades a statutorily defined province guaranteed to the copyright holder alone[,] . . . he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use.” Id. at 217. Because Aleynikov did not “assume physical control” over anything when he took the source code, and because he did not thereby “deprive [Goldman] of its use,” Aleynikov did not violate the NSPA.
Of course, it's somewhat unfortunate that in a ruling in which the court finds that Aleynikov has been improperly charged with "theft" under the law... they still repeatedly refer to his actions as "theft." It's too bad they did not properly note that he copied the code, but still repeatedly claim he "stole" it, as they describe his actions in passing -- but when they discuss the actual legal aspect, they admit that there was no theft.
Separately, the court rejected the charges brought under the Economic Espionage Act, noting that the law he was charged under is limited to trade secrets concerning products used in commerce, and since the code in question was for internal use anyway, it did not qualify under the law.
To some extent (and then further in a concurring opinion written by one of the judges on the panel), the court seems to suggest that it doesn't necessarily like these results (this is less clear in the official opinion, but it appears to be what the panel is implying at times), but that the problem is how Congress wrote these particular statutes. It may be true that the laws are drafted poorly, but it's important that copying code is not seen as theft, because it is not theft. Still, the overall ruling here is good, though it could have been more complete.
from the what-happens-when-you-have-no-one-technological-on-staff dept
It appears that the MPAA has jumped into a legal dispute that hits on a few different points, all of which are interesting, but the really crazy point is the fact that the crux of their argument is that merely embedding or linking (technically, the same thing) to infringing videos is infringement itself -- and someone setting up a site that lets people embed or link should also be guilty of infringement. This is, to put it mildly, crazy talk from an organization that still seems to have an institutional cluelessness about how the internet works. To be sure, there are a few different issues related to this case, which was really about porn company Flava Works suing the site MyVidster and its owner, Marques Gunter. MyVidster lets people link or embed videos from other sites. It did not host any of the content itself. In accordance with the DMCA's notice and takedown provisions, Gunter would take down any embeds or links when he received a notice. However, the judge said that the site lost its DMCA safe harbor provisions because he did not take any further action: specifically because he did not cut off repeat infringers:
“It is true that service providers are not required to police their sites for infringement, but they are required to investigate and respond to notices of infringement—with respect to content and repeat infringers,”
Now, it is absolutely true the DMCA requires that a site have a policy for terminating repeat infringers. But it does not go so far as to say that they then need to proactively "investigate" content related to repeat infringers as the court stated. EFF and Public Knowledge filed amicus briefs pointing out how this is not clear at all, and is quite problematic, since sites don't quite know what is and what is not infringing. This is a big issue, because the sheer vagueness of the law leaves plenty of sites exposed -- and as we recently noted, the way the DMCA (stupidly) works, is that if you fail to meet each and every complex condition of the safe harbors, you can lose them all entirely. That's ridiculous, but that's how the law is set up.
Google and Facebook also weighed in on the case, bringing up some of the same points, but raising the bigger issue of the pure insanity that Flava Works (and the judge!) appear to think that an embed/link is the same thing as hosting the content yourself. This case is in the 7th Circuit, but over in the 9th Circuit, there is a perfectly reasonable and logical decision in one of the many Perfect 10 cases, which establishes the totally common sense "server test." Basically, it's this: is the content distributed from your server? No? Then you're not the one guilty of direct infringement. This makes sense because it's correct. Anyone with even an ounce of technological knowledge understands that embedding a video is not the same as hosting a video. So, that's what Google and Facebook explained to the appeals court.
So what did the MPAA in its luddite-soaked haze have to say about all of this? Yeah, it sarcastically dismisses common sense and launches itself headlong into crazy land by insisting that it's the folks who think the server test is reasonable who are out to lunch:
"Even assuming that Amazon.com’s novel 'server test' applied to the display right (and it should not), the statutory language clearly precludes application of that test to the separate performance right. myVidster users who posted embedded links to video streams directly infringed the performance right even though they did not necessarily possess a copy of the infringed work."
I realize that the MPAA isn't known for having any technological capability whatsoever, but it has to be said: this is just flat out wrong. Embedding does not directly infringe the performance right. They're linking to someone else's server entirely. That host may directly infringe the performance right, but the person who embeds/links to it cannot. Because they have no control over the work at all. They literally are writing an insanely short line of text (or, more likely, copying that tiny line of text) that literally just points your browser to some other server. That's it. When merely pointing someone to another server is seen as direct infringement of a performance right, we've got serious problems.
And it doesn't end there (of course). The MPAA also tries, again, to pretend that the DMCA requires proactive filtering. They complain that MyVidster:
... willfully blinded itself to infringements by failing to take steps, like filtering, to identify re-postings of the same infringing links that Flava had already identified.
Yes, the MPAA is trying to lie and back its way into a proactive requirement for sites to monitor by saying that failing to filter is "willfully blinding." That's wrong. It's obnoxiously wrong. It's the MPAA trying to rewrite the DMCA and add in SOPA filtering requirements on the fly, even though its lawyers already know this argument has failed over and over again. The MPAA just seems to believe if it keeps saying it, maybe it'll find a clueless court to agree.
This is what's so pitiful about the MPAA. When they lose, they don't realize they were wrong, they just keep arguing the same damn thing in court over and over again, and act shocked that anyone might argue otherwise, even though they've lost this argument in court over and over again.
"in the end I think the hopes of ACTA are outweighed by the fears; my recommendation is that we reject ACTA"
His view was echoed by both the President of the Socialists & Democrats in the European Parliament, Johannes Swoboda, and by Sergei Stanishev, Interim President of the Party of European Socialists, who said:
"The attempt to tackle infringement of intellectual property rights on the internet was done in a very short sighted way. This is a serious subject that needs to be dealt with, however ACTA is not the right place, ACTA is not the right tool and this is not the right way to deal with this issue". The PES President called on the European Parliament to vote down the agreement at its plenary session in June.
This makes it practically certain that the left-wing bloc will vote against ratifying ACTA this summer. The question now becomes whether enough politicians in the other parties will decide to do the same. If they do, and ACTA is rejected by the European Union, it will lose much of its force as a global treaty.
We recently wrote about the terrible ruling in which a district court said Hyundai had diluted Louis Vuitton's trademarks with a one-second clip of a mock LV basketball in a commercial. Now THR reports that Louis Vuitton has included that ruling as part of a new filing in another ongoing trademark suit against Warner Bros., over a scene in The Hangover Part II that briefly shows (and refers to) a Louis Vuitton bag. Warner Bros. is seeking summary judgement in that case, on the quite sensible grounds that featuring trademarks and brands in a film is protected speech under the First Amendment, but Louis Vuitton is using the Hyundai ruling as a counterweapon:
The French brand says that judge's decision two weeks ago shows why it should be able to go forward with its claims against Warner Bros. for infringing and diluting its trademark by showing, for one brief moment in the movie, Zach Galifianakis telling someone who pushes his bag, “Be careful, that is … that is a Lewis Vuitton.”
"As Judge Castel recently ruled in Louis Vuitton v. Hyundai, Louis Vuitton's 'aggressive' enforcement of its trademark rights and prompt action against those who misuse its trademarks are necessary concomitants of its exclusive rights in the brand," the French company says in a court filing.
This is how a law gets out of hand: each bad ruling diminishes its intent a little further, until it no longer serves its original purpose. This is a big part of what happened to copyright law, and bullies like Louis Vuitton are causing a similar erosion of trademark: a shift from laws that benefit everyone to laws that grant broad powers of ownership and control to rightsholders, infringing on freedom of speech in the process. Of course, Warner Bros. has been through something similar before, when the artist behind Mike Tyson's face tattoo sued over the very same movie—though that was a copyright issue, and settled confidentially. The argument against trademark dilution is likely even stronger than the argument against copyright infringement, but it remains to be seen how Warner Bros. will respond to Louis Vuitton's latest move.
Of course, as always, one can't ignore the irony of Warner Bros.—a big proponent of stronger intellectual property laws—fighting against overly restrictive trademarks, and citing the First Amendment in the process. This hypocrisy is something media companies don't want to acknowledge: as content producers and distributors, they rely on the very freedoms and fair use exceptions that they are constantly seeking to curtail.
We've discussed in the past the importance of preserving our digital history, including the excellent work the famed Archive Team has done rescuing and archiving various sites as they're being shut down. Of course, sites that are shutting down are not all that's worth preserving. There are also timely events that have value as well. For example, the amazing and powerful SOPA blackouts and online protests from January 18th. That was an historic moment, but it was just one day. Plenty of sites, including ours, showed some of the more interesting sites from the blackout, but there were so may that participated. Could you save them all?
It appears that the Archive Team did exactly that, archiving every site they could find that took part in the protests. The team has now released the entire archive as a 13.6 GB zipped download (don't click that unless you want to start downloading the whole thing). If you'd just like to see a listing of what's included in the file, you can see that too (though, that's also a pretty long list, so beware).
Kudos, once again, to the Archive Team for preserving important digital moments in history and making them widely available.
Back in 2008, New York passed a law requiring registered sex offenders to register all email addresses and social network accounts with the government. Since then, a number of states have passed similar laws and some social networks, such as Facebook, have resorted to simply banning sex offenders from the sites. While these laws provide those who pass them with political capital in following elections, their effectiveness is pretty minimal if it can even be measured.
Not content with just making the online lives of registered sex offenders more difficult, New York is now poised to make sex offenders online lives less enjoyable. New York Attorney General Eric Schneiderman has announced the first wave of an initiative called "Operation: Game Over". Under this initiative, over 3500 sex offenders' online gaming accounts with companies such as Apple, Microsoft and Blizzard have been banned completely. AG Schneiderman applauds the effort with the following:
We must ensure online video game systems do not become a digital playground for dangerous predators. That means doing everything possible to block sex offenders from using gaming networks as a vehicle to prey on underage victims.
While protecting children from dangerous predators is a noble goal, one needs to seriously question this initiative.This isn't just removing access to gaming networks for those that have targeted children in the past, it is also affecting hundreds possibly thousands of people whose crimes had nothing to do with children. To ban them completely from gaming networks seems a bit much. In fact, the New York Civil Liberties Union questions just that:
While the intent here is admirable, schemes like this one do very little to keep children safe and trample on the right to free speech and expression.
And the problem this initiative is trying to solve is almost non-existent. Children are almost always abused by people they know – a friend or family member – not by people they interact with while playing video games online.
If the problem New York is trying to solve is non-existent, then what are they actually accomplishing here? Much like other similar initiatives, those supporting it have no concrete answers. Even Microsoft has no real idea why it is going along with the initiative it; it just is:
At Microsoft, we continually evaluate ways to manage safety for our 40 million Xbox Live members and particularly for children on our service. Our partnership with the Office of the New York Attorney General helps further this cause.
Do you want to know what could really help you protect the 40 million Xbox Live members? An educational program for parents on how to properly manage the online play of their children would do a far more effective job at protecting children than an effort like this. Banning registered sex offenders will do nothing to protect children from predators that have not been caught and prosecuted in the past.
Not only are these people blocked from playing with children through these services, they are also blocked from playing with friends and family members. We are further eroding the ability for these people to reintegrate themselves with society, and for what? While New York and those gaming companies that partnered with the state continue the witch hunt, they will surely earn some brownie points with parents. After all, that is really what matters in an election year. Being able to say, "I did something to protect your children." That is the important thing. Who cares if justice is actually being served? Sex offenders are expendable. They aren't real people. At least you can keep telling yourself that if it helps you sleep at night.
Font blogger Thomas Phinney writes in to tell us about his concerns with the DMCA anti-circumvention clause in relation to creating home-printed versions of digital books. Phinney prints, stitches and binds his own books at home, producing fancy hardcovers for purely personal use from legally-purchased PDF ebooks. This, alone, is a clearly protected case of fair use -- even if it runs afoul of the overreaching copyright notices found in so many ebooks. The problem is that making nice, bound editions takes some extra work, and anti-circumvention laws get in the way:
Making a really high end hardcover from a document such as a PDF involves rearranging the pages (“imposition”) in order to print them in sets on sheets with more than one page per side, so that you can fold them and sew them in groups (“signatures”).
Commercial e-books sold as PDFs are often encrypted with flags on the PDF permit printing, but not modification. Nor do they permit “document assembly” which is exactly what I need: the ability to rearrange, add and delete pages in the PDF. Unfortunately, common approaches to doing imposition involve generating a modified PDF: one in which the pages are at least rearranged and put more than one to a (now larger) page. So far, it looks like many (perhaps all?) imposition apps do it this way and don’t work with PDFs that have restrictions on modification (perhaps on PDFs that have *any* access restrictions?).
Now, I can easily break the encryption on a PDF, if that PDF allows opening but just has restrictions on specific uses like modification. If I do that, I can then use imposition software on a PDF that allows printing but not modification, and make a fancy book.
But (at least as I understand it, and admittedly I’m not a lawyer) the Digital Millenium Copyright Act says that circumventing an access restriction is always illegal, regardless of why I do it. That makes me a criminal if I do that, even if for the sole reason of making a pretty hardcover book. Even when printing the pages out normally and slapping glue on the spine, like a typical softcover “perfect-bound” book, is permitted and legal.
The inherently nonsensical nature of the anti-circumvention clause strikes again: the ends are fair use, but the means are illegal. Of course, since circumvention software itself is illegal too, this raises questions about the applications that are available -- but breaking PDF protection is so trivial that the law seems futile. MacOS even ships with a system tool (ColorSync Utility) that inadvertently removes PDF passwords (an old graphic designer's trick for clients who have lost their source files). This kind of thing is inevitable when you have a law that targets the tools instead of the actual activity, since it's a near-universal truth about tools that they can all be used for both good and bad purposes.
Germany's specialized court system, where cases are ruled on relatively quickly and it can be easier than in other countries to get an injunction, is increasingly leading technology companies to file patent lawsuits there, say patent law specialists.
That ought to place Germany in an enviable position. After all, a common argument from supporters of patents is that foreign companies will be more willing to set up in countries with strong patent regime. So it's curious that the article about Germany's patent-friendly courts quoted above goes on to say:
Motorola sued Microsoft over patents it has on the H.264 video standard, which led Microsoft to move its European distribution center from Germany to the Netherlands even before the German court of Mannheim ruled in the case.
It explains that move as follows:
Apple tried to get an injunction against Samsung in the Netherlands. Samsung's European distribution center is located in the Netherlands, so if Apple would have won, this would have effectively paralyzed Samsung's business in Europe. The judge denied the injunction, meaning Samsung could continue its business in Europe.
This ruling is why Microsoft chose the Netherlands for its distribution center when it decided that Germany was too risky with Motorola's standard-essential patent litigation in mind, said Agé.
This exposes the fundamental flaw in the argument that a patent-friendly legal system will encourage inward investment. However much foreign companies may welcome the ease with which they can sue their rivals and obtain injunctions against them, they also know that they are also more likely to be sued and blocked by injunctions themselves.
Microsoft's hurried decision to withdraw its entire distribution center from Germany shows a possible consequence of this double-edged sword: companies pull out so that patent-friendly courts can't be turned against them. As patent litigation balloons, and more cases head to Germany, other foreign companies may come to the same conclusion as Microsoft, and start taking the same defensive precautions. In which case, Germany will find that far from attracting foreign investors, its patent-friendly courts are actually driving them away.