While this generally irks mostly customers  —  and not very many customers have even experienced this as yet, since the e-reader market is new  —  some publishers and authors feel this negatively impacts their customer relationship.

Now Amazon has made it easier  —  or at least made the choice more explicit  —  for small-scale publishers to decide what kind of relationship with their readers they would like to have:

Without a formal announcement, Amazon.com has started allowing authors to publish their ebooks for the Kindle without digital rights management (DRM), the technology that limits how consumers can use the ebooks they’ve bought.

via Amazon quietly lets publishers remove DRM from Kindle ebooks » Nieman Journalism Lab.

While this doesn’t impact the larger ecosystem, it’s a step that takes e-readers closer to where the behemoth of music sellers has already gone: last year Apple switched off DRM for music tracks purchased through iTunes.

Many publishers and authors fear the results of rampant copying and eagerly embrace DRM as a solution. I personally feel this is the wrong choice, and there is some limited data to back me up. Nonetheless, the real story here is that Amazon is making it easier for authors and publishers  —  at least small-scale ones  —  to choose, and putting that choice up front. At the very least, this forces a brief moment of thought, and hopefully it will generate additional data about whether DRM benefits or harms sales and customer relations.

Image by ramesh.rasaiyan via Flickr

Techdirt discusses why you shouldn’t be concerned if someone “steals” your work and sells it, noting that “it’s not necessarily a bad thing”:

If someone actually figures out something that works well, then that’s useful info to us, and would allow us to then incorporate those findings into our own offering. That’s actually good for everyone…

via Is It Really Such A Problem If People Sell Your Works? Or Is It Just Free Market Research? | Techdirt.

I don’t disagree with this reasoning, at least in the case of the professional production of intellectual property (not necessarily for profit), and most especially when the producer continues to produce content. Thus, this idea makes perfect sense in the case of Techdirt (or most media companies, Twitterers, blogs, newspapers, and so on), since their real value is not in any one particular story, but rather in the relationship between readers/consumers and producers/innovators.

I do worry about “one-off” artists  —  painters, designers, novelists, musicians  —  anyone who may invest countless hours in the production of a single item that can then be easily reproduced at virtually zero cost. (Note that my above points would apply to a music label, perhaps, or even a movie studio, since they produce a constant stream of content which can create relationships.) How do we encourage the small-time innovator who may not produce more than a few works? How do we keep free-riders (I might include music labels and publishers in this list…) from discouraging true, one-off innovations by people who may not be interested in innovating in business as well?

I do not have a good answer to this, but I think it’s an important question. (I also think this possibility is used by media companies to “hide the ball” when it comes to their desire to hold onto profitable IP.) If we don’t find some way to resolve it, I suspect we may never have proper IP reform that works for the “little guy.”

Ever since electronic books emerged as a major growth market, New York’s largest publishing houses have worried that big-name authors might sign deals directly with e-book retailers or other new ventures, bypassing traditional publishers entirely.

Now, one well-known author is doing just that.

Stephen R. Covey, one of the most successful business authors of the last two decades, has moved e-book rights for two of his best-selling books from his print publisher, Simon & Schuster, a division of the CBS Corporation, to a digital publisher that will sell the e-books to Amazon.com for one year.

via Stephen R. Covey Grants E-Book Rights to Amazon – NYTimes.com.

I predict we’ll see more of this, unless traditional publishers provide more value to authors than they do now.

Related articles by Zemanta

• Stephen Covey’s digital rights deal with Amazon startle New York publishers (guardian.co.uk)
• When Amazon and Kindle Win (go-to-hellman.blogspot.com)

The cloud consists of data and services that live on someone else’s servers. Although the term itself is new(ish), the basic idea is embodied by traditional legal research services like LexisNexis and Westlaw  —  data lives on someone else’s servers, not your own. Thus, someone else controls the data, not you. And someone else can delete or modify the data, and you’d never know…

It’s one thing to have to contend with Supreme Courts, like California, that have the power to “depublish” an opinion that helps your case and making it worthless as far as precedent is concerned. But to my knowledge, those cases are still on the books, and binding on the parties to the litigation that created the opinion. It’s an entirely different problem when a court can ask a publisher to take down an opinion previously published, and the publisher does it. In fact, the publisher has apparently been doing it for years. Maybe you knew about it, but I didn’t.

via Dear Publisher, Please Stop Deleting Case Law | Jason Wilson | Law Publishers.

This is the sort of thing that has always given librarians heart attacks  —  to the extent that one librarian I knew years ago attempted to print out every Web site she ever accessed and stored them in file cabinets. A bit extreme? Yes, but the point was that she could control it once it was in print: the data couldn’t disappear, change, etc.

I don’t have the solution to this conundrum  —  cloud services make too much sense to fight  —  but the downsides are expensive, too. What to do, what to do?

Random House now disabling text-to-speech function of Kindle e-books:

Random House has thrown the dreaded “kill switch” on about 40 of its titles, including authors such as Toni Morrison.

Cory Doctorow adds some background:

Back in February, the Authors Guild, a lobby group representing less than 10,000 writers, argued that the Kindle’s ability to read text aloud infringed on copyright (it doesn’t – and even if it does, the infringement lies not in including the feature, but rather in using it; this is the same principle that makes the VCR legal). Amazon folded and agreed to revoke the feature.

Meredith Filak points out some of the issues with restricting text-to-speech functionality:

But wait, you say. So what? Who’s affected by all this?

Well, aside from a long list of people who, for one reason or another, cannot physically utilize books, those with text-based learning disabilities are left out in the cold.

Personally, I have never like the idea of technical restrictions on what I can do with what I’ve purchased. Legal restrictions, perhaps – but technical restrictions, I can unequivocally say, make me far less likely to purchase a product. (This would be why I refuse to purchase DRM‘d music, since it limits what I can do with the product, even when that use is perfectly legal.) Sure, I get it, you have a business model to protect – but don’t expect me to appreciate your attempts to do so! (I don’t.)

Just like with DRM, the existence of “flags” to turn on/off features at the behest of someone other than me (the user/customer) is disturbing. What next? Might what I’ve purchased have more and more usability removed over time? While this might be long-term bad for sales, companies often don’t think this way, and certainly those preserving old business models (Random House!) certainly prefer to hold onto control for as long as they can, even if Amazon doesn’t like it too much.

Let’s just say that I’m even less likely to buy a Kindle now. If I ever do, I’ll be even more likely to find/create tools (within the limits of the law…) to “free” any books I might buy from restrictive DRM and “flags” like this, so as to maximize my technical ability to exercise my full legal rights (including fair use). And if I cannot find a way to do this, well, be warned publishers: I might not buy your product at all.

Related articles by Zemanta

• Amazon retreats on Kindle’s text-to-speech issue (inpropriapersona.com)
• Copyright Fight Brewing Over Amazon’s Kindle 2 (inpropriapersona.com)
• Amazon Begins Selling Kindle Books With Text To Speech Disabled [Text To Speech] (consumerist.com)
• Remote Kill Flags Surface In Kindle (slashdot.org)

Image via Wikipedia

“MUSIC PIRATES IN CANADA: American Publishers Say They Are Suffering by Copyright Violations There – Steps Taken for Redress”

While this sounds like a headline ripped from a newspaper of today, it actually comes from an 1897 article in the New York Times. Enterprising Canadians were selling the sheet music of popular songs via mail to Americans for 5 – 10 cents, undercutting the 20 – 50 cents charged by copyright owners:

“Canadian pirates” is what the music dealers call publishing houses across the line who are flooding this country, they say, with spurious editions of the latest copyrighted popular songs. They use the mails to reach purchasers, so members of the American Music Publishers’ Association assert, and as a result the legitimate music publishing business of the United States has fallen off 50 per cent in the past twelve months.

Jake Brown of Glorious Noise, one of the blogs (along with Idolator, BestActEver and boing boing) to rediscover this intriguing article in the archives of the New York Times, notes:

According to this handy inflation calculator, “What cost $.40 in 1897 would cost $10.22 in 2008.” That’s kinda a lotta money for sheet music, isn’t it?

The United States has a long history of not respecting the intellectual property of those from other countries, but this is the the earliest example I’ve seen that illustrates the U.S. shift from copyright scofflaw (we refused to sign Berne for ages, for example, and for many years U.S. publishers would republish British novels without paying any royalties).

It also interestingly illustrates what I thought was a very early use of the term “pirate” to describe a copyright infringer. Apparently, though, this usage goes back much earlier than 1897, according to Ben Zimmer at the Visual Thesaurus:

From early on, the words pirate and piracy were extended to other types of pillaging. As part of an extended rant against derivative poets in his 1603 pamphlet The Wonderfull Yeare, Thomas Dekker calls upon the Muses to “banish these Word-pirates, (you sacred mistresses of learning) into the gulfe of Barbarisme.” The metaphor of intellectual piracy took hold in early modern English, with plagiarizers and unauthorized copiers of manuscripts compared to robbers on the high seas. Illegally reproduced books came to be known as “pirate editions” by the eighteenth century, long before online file-sharing made the piracy of copyrighted material child’s play.

So, like many things, the current battle between distributors and owners is hardly new.

I would also like to note the benefits to historical research of free access to archives like those of the New York Times. Great stuff!

Related articles

• Lawrence Lessig Answers Your Questions on Copyright, Corruption, and Congress (freakonomics.blogs.nytimes.com)
• Should Online File Sharing be Strongly Prosecuted? (usnews.com)
• A Word on Copyright Misnomers (plagiarismtoday.com)
• Publishers warm to new technology (financialpost.com)

Legal Theory Blog – Should we study Kelsen?:

On the first question, it seems to me clear that competent philosophers of law need (at a minimum) a basic acquaintance with Kelsen’s theory. One place to start would be Green’s paper (cited above), but an even better starting point would be Stanley Paulson’s Introduction to Normativity and Norms: Critical Perspectives on Kelsenian Themes, a magnificient anthology now sadly out of print (but still available via the link at Amazon.com). I assume that no one would seriously dispute this point, because of Kelsen’s importance in the history of legal philosophy — significant even in the Anglophone Hart-Dworkin-Raz-Finnis tradition and enormous in continental philosophy of law. (A similar point could be made about the more recent work of Niklas Luhmann, e.g., his Law as a Social System.)

On the second question, I think that anyone who works on the what-is-law, what-are-the-necessary-qualities-of-law, nature-of-law debate should have a basic familiarity with Kelsen’s work in translation, e.g., with Pure Theory of Law and General Theory of Law And State. Basic familiarity is not mastery. Because Kelsen’s writing is abstract, complex, and frequently obscure, mastery would come at a high cost — in my opinion, only through careful study of Kelsen in the original German. (Yes, I really mean this. Quite obviously, anyone who writes a dissertation on Kelsen should read him in German.)

PrawfsBlawg – Why No Kelsen?:

So what gives? What is there about Kelsen that Americans don’t like?

The problem, I think, is that Kelsen/s approach runs against the two dominant trends in American philosophy of law. Most Americans look at law and legal systems empirically — as fundamentally involving questions of social facts. The competing view, represented by Dworkin and Finnis, considers legal facts to be, at least in part, moral facts.

Kelsen rejected both views. For him, the law was neither empirical nor moral. The best analogy I can think of is the way many philosophers talk about language. A language correlates certain physical things (e.g. strings of letters or phonemes) with linguistic meanings. For example, “Es regnet” means it rains in German (but nothing in English). For Kelsen, legal systems correlate certain social events (people raising their hands in a room) with legal meanings (a statute being enacted). And just as many philosophers consider linguistic meanings to be abstract objects — neither empirical nor moral — Kelsen thought the same thing was true of legal meanings.

Maybe “litcrit” has relied too much on the fabled “Death of the Author” (even without realizing it) when trying to analyze case law. If your “author” keeps popping back up to correct your understanding, it’s much harder to wander off into a analyzing binary dichotomies of meaning (à la Lévi-Strauss) since that damn author/judge/court keeps trying to nail down their/your signifieds.

Or perhaps the law has yet to discover/be discovered by literary criticism, and simply got hung up on the oh-so-last-century positivist Frankfurt School approach of critical theory, whose final implications have simply been too radical to carry into the classroom for the conservative and establishmentarian legal world (nonetheless, it seems legal positivism remains perhaps the dominant approach when legal scholars are forced to wax philosophical).

Possibly the litcrit approach feels too Continental in flavor, more suited to a civil law view of the world. But I think leaving it there would be a shame: the common law looks to me to be a perfectly fascinating cultural narrative, full of symbolic meaning and dialectical relationships, perfectly suited to the complex tools developed by those perhaps more used to dining on Kierkegaard and Austin than Posner and Cardozo.

Those of us in law school often view the law as central to our society. Without the law, we would not be a nation. Quite true, I think, in its way. But is it not, well, interesting to also say that there is never any true center to a culture—that the entire construction is so interwoven and so self-referential that beginnings, endings, margins and centers, are places which are impossible to finally nail down. So then, to continue down this path, Jacques Derrida says (in “Structure, Sign, and Play in the Discourse of the Human Sciences“),

it was necessary to begin thinking that there was no center, that the center could not be thought in the form of a present-being, that the center had no natural site, that it was not a fixed locus, but a function, a sort of nonlocus in which an infinite number of sign-substitutions come into play. . . . This was the moment when . . . everything became discourse—provided we can agree on this word—that is to say, a system in which the central signified, the original or transcendental signified, is never absolutely present outside a system of differences. The absence of the transcendental signified extends the domain and the play of signification infinitely.

There. Isn’t that a fun way to start thinking, just for a bit?

Reading through this introduction has helped remind me of the value of these theoretical approaches, and so I am sharing snippets here to hopefully spark some future scholarship (on my part, on anyone’s part) in applying these theoretical approaches to the law.

Gender and Sex

[S]ex and gender theorists can be divided into various sub-schools that bring together the insights of disparate approaches (eg. materialist feminists, Foucauldian theorists of gender, postmodern and poststructuralist theorists of gender, and psychoanalytical feminists; psychoanalytical feminists can, in turn, be divided among Freudian, Lacanian, and Kristevan thinkers).

Players include: MICHEL FOUCAULT, JUDITH BUTLER.

Marxism

The major distinction in Marxist thought that influences literary and cultural theory is that between traditional Marxists (sometimes, unfairly, called vulgar Marxists) and what are sometimes referred to as post-Marxists or neo-Marxists. The major distinction between these two versions of Marxist thought lies in the concept of ideology: traditional Marxists tend to believe that it is possible to get past ideology in an effort to reach some essential truth (eg. the stages of economic development). Post-Marxists, especially after Louis Althusser, tend to think of ideology in a way more akin to Jacques Lacan, as something that is so much a part of our culture and mental make-up that it actively determines what we commonly refer to as “reality.”

Players include: KARL MARX, LOUIS ALTHUSSER, FREDERIC JAMESON.

Narratology

Narratology examines the ways that narrative structures our perception of both cultural artifacts and the world around us. The study of narrative is particularly important since our ordering of time and space in narrative forms constitutes one of the primary ways we construct meaning in general. As Hayden White puts it, “far from being one code among many that a culture may utilize for endowing experience with meaning, narrative is a meta-code, a human universal on the basis of which transcultural messages about the nature of a shared reality can be transmitted” (Content 1).

Players include: PETER BROOKS, ROLAND BARTHES, ALGIRDAS GREIMAS.

New Historicism

New Historicists are, like the Cultural Materialists, interested in questions of circulation, negotiation, profit and exchange , i.e. how activities that purport to be above the market (including literature) are in fact informed by the values of that market. However, New Historicists take this position further by then claiming that all cultural activities may be considered as equally important texts for historical analysis: contemporary trials of hermaphrodites or the intricacies of map-making may inform a Shakespeare play as much as, say, Shakespeare’s literary precursors

Players include: MICHEL FOUCAULT, STEPHEN GREENBLATT.

Postmodernism

I will attempt to be consistent in using “postmodernism” to refer to a group of critics who, inspired often by the postmodern culture in which they live, attempt to rethink a number of concepts held dear by Enlightenment humanism and many modernists, including subjectivity, temporality, referentiality, progress, empiricism, and the rule of law. “Postmodernism” also refers to the aesthetic/cultural products that treat and often critique aspects of “postmodernity.”

Players include: LINDA HUTCHEON, JEAN BAUDRILLARD, FREDRIC JAMESON.

Psychoanalysis

Psychoanalytical criticism aims to show that a literary or cultural work is always structured by complex and often contradictory human desires. Whereas New Historicism and Marx-inspired Cultural Materialism analyze public power structures from, respectively, the top and bottom in terms of the culture as a whole, psychoanalysis analyzes microstructures of power within the individual and within small-scale domestic environments. That is, it analyzes the interiority of the self and of the self’s kinship systems. By analyzing the formation of the individual, however, psychoanalysis also helps us to understand the formation of ideology at large—and can therefore be extended to the analysis of various cultural and societal phenomena. Indeed, for this reason, psychoanalysis has been especially influential over the last two decades in culture studies and film analysis.

Players include: SIGMUND FREUD, JACQUES LACAN, JULIA KRISTEVA.