Monthly Archives: August 2005

chortle: atheist meetings

Pharyngula tears up a Christian apologetic, which was fine and entertaining, but it was the commenter Oneiros Dreaming who made me laugh out loud:

pharyngula: Personally, I’m a little bit miffed about this frequent assertion that atheists are just that way because they want free sex. I’m an atheist, and I never got to take advantage of all that free lovin’ hedonism; all of the atheists I know seem to live rather ordinary, conventional lives. I got married, have been faithful ever since, have had three atheist children who haven’t bothered to shoot up their school or muck up their lives with drugs, and as far as I know, my freethinker wife hasn’t been participating in any Black Masses behind my back. Is it all the other atheists who have wild and degenerate private lives?

Comment #35656 Oneiros Dreaming: Dude, you really have to start going to the meetings.

peter jackson: piracy (vs. derivative works)

ordinarily i’m interested in quotes from artists & creators that evidence awareness of or interest in non-copyright maximalism. but in today’s NYT article (“King Kong vs. Pirates of the Multiplex”) there was a quote from Peter Jackson:

“Piracy has the very real potential of tipping movies into becoming an unprofitable industry, especially big-event films. If that happens, they will stop being made,” said Mr. Jackson in an e-mail message from New Zealand, where he is putting the final touches on his version of “King Kong.” “No studio is going to finance a film if the point is reached where their possible profit margin goes straight into criminals’ pockets.”

which I thought was interesting compared with an off-the-cuff conversation between Peter Jackson (PJ), Fran Walsh (FW), and Philippa Boyens (PB) on one of the LOTR DVD director commentaries:

PJ [5:42]: It’s unlikely to find a place actually because there’s nowhere to put it now really even in The Return of the King. So maybe in the 50th anniversary box set we can put it in somewhere.

FW [5:54]: Wouldn’t it be fun to do an edit of all 3 films in chronological order?

PJ: Like the, The Godfather box set?

FW: Oh is that what happens there?

PB: Did they? Oh cool.

PJ: Yeah.

FW: You could put that scene, you know, right after the, the council meeting.

PJ [6:09]: Well, you could, that’s right. I mean, well, people could do that with their – I shouldn’t suggest this, but people could, could do this with the sort of interesting software available on home computers these days, it’s, um, it’s something that any, any fan could do.

PB: Maybe they could do it for us, and we wouldn’t have to do it ourselves.

posted here 2004/12/5, on The Two Towers, Extended DVD, Directors’ Commentary, Disc 2, 5:42 – 6:24

on file sharing “the daily show”

Okay, I’m sneaking a little break away from visiting family in Virginia to breathe the fresh air of the Internet. I wouldn’t exactly call Virginia a hellhole (at least not in front of the family who lives here), but the Internet cafe (Panera Bakery) I’m surfing at blocks arthur silber’s the light of reason and poor man as Forbidden Category “Adult/Mature Content”. Sigh.

Anyway, one of the sites I can read is Wired. In the recent interview with Jon Stewart & Ben Karlin (Daily Show’s Exec Producer) (“Reinventing Television”) I noticed this commentary:

WIRED: ["The Daily Show"] is among the most popular shows traded online. People download and watch the whole thing, every day. Were you guys aware of that?

Karlin: Not only am I not aware of that, I don’t want to be aware of that.

WIRED: Well, don’t go shutting it down.

Stewart: We’re not going to shut it down – we don’t even know what it is. I’m having enough trouble just getting porn.

Karlin: If people want to take the show in various forms, I’d say go. But when you’re a part of something successful and meaningful, the rule book says don’t try to analyze it too much or dissect it. You shouldn’t say: “I really want to know what fans think. I really want to understand how people are digesting our show.” Because that is one of those things that you truly have no control over. The one thing that you have control over is the content of the show. But how people are reacting to it, how it’s being shared, how it’s being discussed, all that other stuff, is absolutely beyond your ability to control.

Stewart: I’m surprised people don’t have cables coming out of their asses, because that’s going to be a new thing. You’re just going to get it directly fed into you. I look at systems like the Internet as a convenience. I look at it as the same as cable or anything else. Everything is geared toward more individualized consumption. Getting it off the Internet is no different than getting it off TV.

WIRED: Isn’t that going to pose a challenge to the traditional network model?

Stewart: But we’re not on a traditional network: We’re on the goofy, juvenile-delinquent network to begin with. We get an opportunity to produce this stuff because they make enough money selling beer that it’s worth their while to do it. I mean, we know that’s the game. I’m not suggesting we’re going to beam it out to the heavens, man, and whoever gets it, great. If they’re not making their money, we ain’t doing our show.

And on the famous clip of Stewart on CNN:

WIRED: [T]he show was a total sensation: Something like 3 million people saw that – but mostly online. Less than a quarter of them saw it on CNN proper. It was huge, phenomenal viral video.

Stewart: It was definitely viral. I felt nauseous afterward.

WIRED: It was one of the most downloaded clips ever.

Stewart: Really? That’s not true. Pamela and Tommy Lee?

WIRED: OK, maybe that was bigger. But it was amazing that CNN was so clueless about what you gave them. Suddenly, for once, everybody wanted to see Crossfire. They could have taken the show and put it on their Web site, said Click Here, and gotten all this traffic. Instead, everyone had to go through these other sites and back doors to find it.

Stewart: That’s really half the fun, isn’t it? If CNN had put it on its Web site, it would have lost some of its allure.

Karlin: It’s people going, “Holy shit, did you see this?”

And, last but not least, my favorite quote:

Stewart: The Internet is just a world passing around notes in a classroom.

yet more quotes & comments

some links, some quotes, some comments, all in one … I pulled various of these articles up several hours ago from various blogs, which I would like to link back to, but windows got closed, systems got rebooted, and to make a long story short I no longer know which link came from where.

  • Molly Ivins writes about SLAPPs and also reminds us of one of my favorite George W. Bush quotes: “There ought to be limits to freedom.” Uttered in response to a parody website. (which it seems is now on hiatus). [link from sideshow]
  • God, I loved this: famous same-sex swan couples: romeo & juliet, of boston’s Public Garden [link from plaid adder war journal 8/12]
  • This Swedish library is loaning lesbians. [Which reminds me of one of my favorite canvas bags/t-shirts seen around ALA: "Nobody knows I'm a librarian."] The library project is called “The Living Library” and allows you to check out various, err, types of people for 45 minutes. Now circulating, a lesbian, a Muslim, an animal rights activist, a gypsy, and some other folks. [link from librarian.net 8/17; see also sbs]
  • John Nichols, “Being Like Bernie” [Sanders], The Nation, 2005/8/15.

    At his best, Sanders succeeds in separating policy from politics and getting to those deeper discussions about the role government can and should play in solving real-life problems– discussions that are usually obscured by partisan maneuvering. That’s the genius of Sanders’s independent status. But it is also a source of frustration. While Sanders backers formed the Vermont Progressive Party, a third-party grouping that holds six seats in the State Legislature, he has never joined the party and has sometimes been slow to embrace its statewide campaigns. While the sense that Sanders is a genuinely free agent serves him well, it raises questions about whether Sanders will ever create not just an alternative candidacy but an alternative politics in his state. “He will not leave a party behind him. So what will be his legacy?” asks Freyne of Seven Days. “I don’t see a next Bernie on the horizon. I don’t see what comes after him. There’s a lot wrapped up in one man, and I don’t know where that gets you in the long run.”

    But Sanders makes no apologies for refusing to be a party man. Yes, of course, he’d like the Democratic Party to be more progressive and for third parties to develop the capacity to pull the political process to the left. But Sanders is not going to wait for the right political moment to arrive. What he’s done is create a model for how an individual candidate can push beyond the narrow boundaries of contemporary politics and connect with voters in the same sense that Progressives and Populists of a century ago–operating within the shells of the Democratic and Republican parties and sometimes outside them–did so successfully.

    ai-yi-yi. i must rant. why should sanders have to leave a party to leave a legacy? his unreconstructed individualism is charming. the man stands for himself. people like and appreciate that in almost anybody and especially in politicians. a party? what do parties stand for? mostly, their own ongoing existence. at any given moment, a party might have a general drift — towards theocracy, say, or corporate welfare. or a party might be a confusing morass of many different opinions and no center. evaluating a party by its platform tells you nothing: who could imagine, reading the RNC platform, that there would be such a group as Log Cabin Republicans? is evaluating a party by its inner circle power brokers any more useful in assessing what a party stands for? the value of political parties lies in certain advantages for their members in furthering their common agenda through pooling resources, power, etc. but once a party is too big to reflect any common agenda for all its members, and has significant disagreement on major policy points among its members, then its continued existence becomes just an exercise in maintaining its own power. so bernie sanders doesn’t do party politics, but manages to get things done, stick to and voice his opinions, and he’s wildly popular. hmm. i think there’s a lesson there.

  • Digby, Shameful Indifference, 2005/8/14:

    Memo to those on the right who say the Left supports Islamic fundamentalists: we’re the Godless Heathens, remember? We’re against the religious zealots running governments across the board. Of course, that includes your “base” here in the US too so you’ll have to pardon us for our consistency and ask yourselves why we find you incoherent on this matter.

    Such a useful point. Get rid of the rhetorical labels (“left”, “liberal”, “Republican”, “Islamist”, “Democrats”, and all the various pejorative quasi-puns that conservative blog commenters think are so funny, e.g., “Dims”) and look at specific positions. State control of the press. State control of individual’s sex lives. Specific state positions on individual’s sex lives: same-sex okay or not? Protection of natural resources: important or unimportant? up to the state or the private sector? … and so on. For instance, who’s opposed to non-marital sex, same-sex relations, immodesty in women, indecency on the airwaves; and supportive of patriarchal households, tending to form personality cults around strong authoritarian leaders, pro-military/violence, pro-government entanglements with religion. With so much in common, I guess I should be happy that Islamic and Christian fundamentalists don’t get along better. Hooray for doctrines & deities!

about the blogroll / linkroll

I just re-set the blogroll to show everything, sorted alphabetically; reverse-alphabetically in a few categories. This is a shift from the past several months, when I had limits on total # of blogs in a category, and showed them by ostensible date-of-most-recent-updates. That didn’t work. The date-of-most-recent-updates was determined some means incomprehensible (well, uncomprehended, anyway) by me. So I couldn’t fix it when the system didn’t pick up recently updated blogs. Moreover, the way I would have really liked it to work would be to (A) limit by top 75 most recently blogs; and (B) order by alphabet. Alas.

If I just keep the limits, then the same n blogs show up all the time; that’s boring. I could limit to n and sort by random but I like alphabetical sorting. So, what the hell. I’ll just have a really really long blogroll. No skin off my back. I like having all those sources. The ones I need are organized into subcategories. The ones I read just for fun are all lumped together and sorted alphabetically. Eventually new blog management tools will come along and I can pick them up. In the meantime I’m happy enough with the new (old) arrangement.

freedom of info, giblets-style

Indeed, the Medium Lobster could not agree more: while some in the petty name of “truth,” “accountability” and “basic humanity” might want to open this material to the world, outrage over yet another American atrocity would just fuel more violence. Oh, ACLU, don’t you have enough blood on your hands? Which is why the Medium Lobster also believes the time is long overdue to classify the Iraq War.

go read fafblog now

terry pratchett’s new secret novel

The widely quoted, hilarious response by Terry Pratchett to the Canadian court order [more from Michael Geist] applied to early purchasers of Harry Potter 6:

Terry Pratchett, by a strange coincidence, chose the H*rry P*tter launch day to issue a stern warning about his next Discworld novel: ‘Now that the bound proof copies of _Thud!_ are out, and will no doubt be winging their way to an e-bay near you, I would like to say that ANYONE WHO READS A WORD OF IT before publication day will be MADE TO SIT IN THE CORNER and their ENTIRE COUNTRY will be given DOUBLE DETENTION until every single person SAYS SORRY!!!!!’ So there.

quote in Ansible; also at forum.rpg.hu via boingboing via minilinks

the BBC

The BBC recently aired a second Victorian lesbian drama based on a novel by one of my favorite writers, Sarah Waters. The BBC made one of the best lesbian movies, ever, in its adaptation of Jeanette Winterson’s “Oranges Are Not the Only Fruit”. The BBC is opening its archives to the world.

England is a tiny nation. A tiny little island nation. The US is very very big and we have lots of money and lots of people and very expensive bridges in Alaska and very expensive unnecessary wars in Iraq. So why can’t we have a BBC? I’ll trade PBS and NPR for the BBC.

fantastic library pork

Garrison Keilor imagines library pork like the Alaskan bridge-laden Republican Transportation bill. First, the model:

For Alaska, the Republicans earmarked $223 million for a bridge almost as long as the Golden Gate to link the town of Ketchikan (pop. 8,000) — which is a town that exists to sell T-shirts and postcards to cruise passengers for three months a year — to the local airport on Gravina Island, replacing a seven-minute ferry ride. Alaskans also will receive a billion-dollar two-mile-long bridge connecting Anchorage to hundreds of square miles of undeveloped wetlands, a great convenience for bird-watchers who now, instead of having to kayak across the water to observe the red-bellied grommet, can drive over in their Explorers and bring a mobile home with them.

Alas, I fear the undeveloped wetlands may not stay either un- or wet- very long. Next, the improved library library pork version:

I imagine that a super-library of that caliber might cost $223 million if you add in the books, the banks of computers with high-speed Internet connections, the movie theater, the Children’s Room, the Steam Room, the Nap Room, the Hobnob Room where English majors can gather for a libation, the underground parking garage, and the kindly reference librarian with the bun, the faint mustache on the upper lip, the navy-blue knit dress, the sensible shoes, and the glasses on a chain around her neck. Those ladies have become rare and do not come cheap.

Ahem. I’ll resist going on the usual anti-librarian-stereotype rant just because Mr. Keilor is so charming & hilarious. He offers us one final bit of lobbying strategy which I think is a sure winner:

And we need to promote public libraries as a tool in the war against terror. How many readers of Edith Wharton have engaged in terroristic acts? I challenge you to name one. Therefore, the reading of Edith Wharton is a proven deterrent to terror. Do we need to wait until our cities lie in smoking ruins before we wake up to the fact that a first-class public library is a vital link in national defense?

essence of library

I like the flow of the google / library discussion: what’s the essence of library? and suspect I’ll be thinking about that one for a long time to come. (It sounds like a delightful perfume: a bit musty with an sweet undernote of decaying paper and an overnote of astringent preservative, maybe.)

Just picking out a few of the responses & adding a few more comments:

Michael Madison laid out a best-case defense for google based on google’s added-value of meta-information, and then termed the discussion: “is there an ‘essence’ of library?” And points out that we ought to focus “more what Google does than on what Google is“.

Siva Vaidhyanathan responded that Google doesn’t come close to the ‘essence of a library’.

This is the heart of the discussion that really intrigues me. Not because I truly am arguing that Google is a library, but because I suspect that the ways that information is being transmitted might start to render moot our current definitions of “library”. In my earlier post, I wasn’t really suggesting that Google take advantage of the warm feelings towards libraries; I doubt it would be a very helpful strategy, because most judges, like everyone else, would intuitively distinguish between the classical public library and Google. Rather, I was suggesting that library exceptionalism is only going to work so long as libraries are conceptually distinct.

Michael M then responded to Siva with some discussion of the essence of a library, ultimately concluding that we really have to talk about libraries in terms of information flows. And then he brings it back to Google:

Do we experience Google Print content as we experience other collections that we regard as libraries, or do we experience that content as we experience the Web — a functionally unlimited aggregation of data? Right now, the answer to that question has to rely on intuition and speculation. My money is on the second option, but in the end: who knows?

I’d like to suggest two basic functions for libraries: One is warehousing and archiving physical collections; serving effectively as a museum of information. The second function is providing information services. Storage, and access.

In the past and even today these two functions are, practically, inseparable. And each implicates a whole host of sub-functions many of which serve both masters — e.g., cataloging, which organizes the stored collections.

But these functions have been splitting and will continue to. Digitizing projects, like Google Print, will put the physical artifacts on the same plane with museum artifacts: nice if you’re a scholar and need the original, but for most people, the digitized content will suffice. [Google Print is not the only digitizing project, of course; there are plenty of others on smaller scales that have gotten less attention. I would be interested to get some examples of public-private partnerships because I suspect Google Print isn't the only one.]

As more of the information content becomes digital, the subfunctions used to service both the storage and access functions will shift. Two examples: cataloging and preservation. Electronic information needs much less in the way of cataloging; full-text searching obviates a lot of cataloging needs. (No, not all; I believe in subject headings and hierarchical thesauruses — although I’m not sure they’re ultimately scalable if we’re talking about organizing all information.) Digital media have their own preservation problems, fairly distinct from those relevant in most special collections. The central problem in preserving digital media collections is shifting formats; the central problem in preserving physical collections is preserving the original artifact.

So as these transitions within libraries move forward, the easy and obvious distinctions present today between libraries and Google Print will erode.

Now, Eric Goldman in a comment here said another of his maxims was never build a business on fair use. Google Print, of course, relies entirely on fair use (17 USC 107), so far as I can see. One way we might distinguish libraries at present is that most libraries, operating in the book-warehousing business today, rely not very much at all on fair use, and rather a lot on first sale (17 USC 109). Libraries vary with respect to the library exemptions in 108, which are used principally, so far as I know, to (a) establish reserves collections; and (b) make backups of software, videos, records, etc.

But the bedrock library provisions we rely on today, 108 and 109, won’t be enough for some collections that need to be built in the future. For instance, I don’t know what libraries are currently archiving popular digital ephemera (besides the Internet Archive). But just as libraries have begun to collect popular culture media in DVDs, CDs, comic books, and zines, so there will have to be archiving projects dedicated to archiving purely digital media, including digital media that are distributed for free via the web. I’m thinking of things like JibJab’s “This Land Is Our Land”, Mark Fiore’s shockwave commentaries, and similar such materials.

Let’s consider the Mark Fiore shockwave animated cartoons. [This is purely my example, because I love Mark Fiore; I have no idea if he has been approached by any libraries or what his response might have been.] The cartoons are distributed for free over the Internet; but they are not (so far as I know) licensed for free reproduction & distribution, and they author retains copyright. If a library wanted to begin collecting them, how would they analyze this collection & provision of access to it? 109 protects the rights of “the owner of a particular copy or phonorecord lawfully made under this title … to sell or otherwise dispose of the possession of that copy or phonorecord”. But “computer programs” are exempted. Are shockwave files “computer programs”? Maybe we have to resort, at last, to fair use. Now what do American Geophysical Union, Kelly v. Arriba, MP3.com, et al, tell us? Michael Madison talked about it, but I think it was summed up by Eric Goldman: “Don’t build a business on fair use … multi-factor tests lead to complete unpredictability.”

This is obviously not a fullbore analysis of the relevant provisions as applied to publicly distributed shockwave files, but it does make my point: digital media and new ways of distributing content are already troubling the current copyright categories that are designed around brick-and-mortar libraries and physical artifacts.

And that’s just one example looking at only one aspect of the question of collecting & providing access to Mark Fiore shockwave animations. Consider the reams of problems that digital media pose in the realm of licensing, DRM, and DMCA-type technical protection measures, notwithstanding the protections allegedly offered by 109, 108, and the 1201(d). (Is there any point in even citing to 1201(c)? I feel it’s been effectively read out of the statute the same way, and perhaps for similar reasons, the 9th Amendment to the Constitution has been politely ignored.)

Libraries qua libraries — well, libraries qua public and academic libraries, anyway — will always have recourse to Congress, and I predict they will prove as popular there in the future as they have in the past: not popular enough to sway Congress from granting very broad rights to copyright holders that end up hurting libraries, but popular enough to get some limited library-specific protections.

But most librarians, myself included, want to preserve BOTH today’s model of the library: the brick-and-mortar warehouse-and-cataloger-of-physical-media (which I do think will always be around) — AND the idea of the library: the collector and provider of information. So the question is, how, or why, do we copyfighters / librarians / information activists / legal scholars distinguish Google Print in a way that doesn’t hurt Essence of Library down the line? And why, tactically, should we? Maybe, we should focus on building a more robust fair use, fixing 109 so it works with digital media, or even adding in more 108 exemptions. Or maybe on the DMCA Library of Congress anticircumvention comment rounds that are coming up again.

Further reading on this discussion at copy this blog and copy this blog again. copyfight is following the debate and a number of people are commenting: See google print is as google print does and google print library shoulda coulda woulda. More from “real librarians” and others responding on Siva’s blog: Eileen Snyder, 8/17; Siva responding to Michael Madison, and including comments from other folks too.

I’d like to link to some good discussions on 109 (I seem to recall Derek Slater recently talked about 109 and digital music files, for instance, but can’t find his post — is there a search function I’m missing? Derek?) but will need to do some more digging … later.


As I write I follow one of those social sciences rules about mobs or group discussions or something: I make myself more firm in my opinions the longer I write. This is why it would be much better if I had time to write a long post, then sit on it for a while — my tone could be measured & even the whole way through. But I was already delayed in responding, so wanted to get some thoughts out in a hurry.

update 8/18: a few last posts on this discussion: madisonian.net 8/17; siva 8/18 and siva again 8/18;

siva also posted about an aspect of this issue which i didn’t really touch at all in this discussion, which is the trustworthiness of private actors in general and google in particular. my interest was piqued by the essence-of-library question, but this was a significant thread in comments & subtexts in various discussions. See siva 8/17; copy this blog (previously cited) linked to a post & comment discussion of the google / library contract on the library law blog; and seth finkelstein wrote about what’s in it for google.

update 9/1: the best response to it all came from the onion: Google Announces Plan To Destroy All Information It Can’t Index …

The new project, dubbed Google Purge…. The company’s new directive may explain its recent acquisition of Celera Genomics, the company that mapped the human genome, and its buildup of a vast army of laser-equipped robots. ‘Google finally has what it needs to catalog the DNA of every organism on Earth,’ said analyst Imran Kahn of J.P. Morgan Chase. ‘Of course, some people might not want their DNA indexed. Hence, the robot army. It’s crazy, it’s brilliant—typical Google.’ … ‘This announcement is a red flag,’ said Daniel Brandt, founder of Google-Watch.org. ‘I certainly don’t want to accuse of them having bad intentions. But this campaign of destruction and genocide raises some potential privacy concerns.’

related posts: interesting reading early saturday morning 8/13google & not-for-profit libraries 8/13

new yorker on bush on science

In The New Yorker, The Talk of the Town, posted 2005/8/15, Hendrik Hertzberg had this to say about Bush & his recent comments on intelligent design:

If the President’s musings on [intelligent design] were an isolated crotchet, they would hardly be worth noting, let alone getting exercised about. But they’re not. They reflect an attitude toward science that has infected every corner of his Administration. From the beginning, the Bush White House has treated science as a nuisance and scientists as an interest group—one that, because it lies outside the governing conservative coalition, need not be indulged. That’s why the White House—sometimes in the service of political Christianism or ideological fetishism, more often in obeisance to baser interests like the petroleum, pharmaceutical, and defense industries—has altered, suppressed, or overriden scientific findings on global warming; missile defense; H.I.V./ AIDS; pollution from industrial farming and oil drilling; forest management and endangered species; environmental health, including lead and mercury poisoning in children and safety standards for drinking water; and non-abstinence methods of birth control and sexually-transmitted-disease prevention. It has grossly misled the public on the number of stem-cell lines available for research. It has appointed unqualified ideologues to scientific advisory committees and has forced out scientists who persist in pointing out inconvenient facts. All this and more has been amply documented in reports from congressional Democrats and the Union of Concerned Scientists, in such leading scientific publications as Nature, Scientific American, Science, and The Lancet, and in a new book, “The Republican War on Science,” by the science journalist Chris Mooney.

linked from chris mooney 8/15

rights to information on Beta & Barrayar

Okay, I’m on some kind of a roll with fictional discussions of IP etc. Here’s another: Lois McMaster Bujold, in Barrayar, chronicled a cross-cultural exchange about the value of information access. Cordelia, from the planet Beta, is shocked that poor people don’t have access to information; Vorkosigan, from the planet Barrayar, is shocked at her definition of poverty:

“[The town is] very poor. It was the town center during the Time of Isolation, and it hasn’t been touched by renovation yet. Minimal water, no electricity, choked with refuse….”

“Mostly human,” added Piotr tartly.

“Poor?” said Cordelia, bewildered. “No electricity? How can it be on the comm network?”

“It’s not, of course,” answered Vorkosigan.

“Then how can anybody get their schooling?”

“They don’t.”

Cordelia stared. “I don’t understand. How do they get their jobs?”

“A few escape to the Service. The rest prey on each other, mostly.” Vorkosigan regarded her face uneasily. “Have you no poverty on Beta Colony?”

“Poverty? Well, some people have more money than others, of course, but … no comconsoles?”

Vorkosigan was diverted from his interrogation. “Is not owning a comconsole the lowest standard of living you can imagine?” he said in wonder.

“It’s the first article in the constitution. ‘Access to information shall not be abridged.’”

That’s a constitution I’d like to read. The conversation continues:

“Cordelia… these people barely have access to food, clothing, and shelter. They have a few rags and cooking pots, and squat in buildings that aren’t economical to repair or tear down yet, with the wind whistling through the cracks in the walls.”

“No air conditioning?”

“No heat in the winter is a bigger problem, here.”

“I suppose so. You people don’t really have summer… How do they call for help when they’re sick or hurt?”

“What help?” Vorkosigan was growing grim. “If they’re sick, they either get well or die.”

“Die, if we’re lucky,” muttered Piotr. “Vermin.”

“You’re not joking.” She stared back and forth between the pair of them. “That’s horrible… why, think of all the geniuses you must be missing!”

Sparky Valentine & IP

John Varley has made more than a few comments about IP and information politics in his various stories. The Golden Globe (recommended) was centrally concerned with an actor named Sparky Valentine, and Sparky had a few observations about IP:

In the early days, when they were considering various ideas for a corporate logo, Valentine had suggested using a character from the old Popeye cartoons. Since they were all in the public domain, Sparky had settled on Wimpy taking a bite out of a hamburger.

followed by:

There was another department whose mission in life was to steal. Steal from dead people, it’s true, but steal nonetheless. Sparky had long ago given up coming up with plots and, except for the occasional inspiration, characters. Anything in the public domain was fair game. Old comic books were a fertile source. Almost anyone who had had his or her own comic book in the twentieth or twenty-first century had made a guest appearance on Sparky by now. Sparky had visited locations from Gotham City to Surf City. Old movie and television serials had been plundered for plotlines and cliffhangers. Sparky had entered alternative universes, places where classic private eyes, singing cowboys, half-breed aliens with pointy ears, and giant radioactive ants actually existed.

And also about librarians:

Hal had a UniKnowledge module, which was the nearest thing we’d ever get to summing up all human information collected since the days of the Cro-Magnon. It held all the libraries of Old Earth. All the movies, television shows, photo files. Billions of billions of bits of data so obscure a researcher might visit some of it once in two or three hundred years, and then only long enough to find it no longer had any reasonable excuse for being. But it wasn’t thrown out. Capacity was virtually infinite, so nothing was ever tossed. Who knew? In ten centuries the twenty years of telemetry from Viking I might be of use to somebody. A vanity-press book, published in 1901, all about corn silage in Minnesota, of which no hard copy existed, might be just the reading you were looking for some dark and stormy night. The UniKnowledge held thousands of books printed in Manx, a language no one had spoken in a hundred years. It held Swahili comic books teaching methods of contraception. It contained cutting-room debris saved from a million motion pictures, discarded first drafts of films never made. A copy of every phone book extant at the time we began to record data by laser, and every one printed since. Fully half of the information in the UK had never been cataloged, and much never referenced in the centuries since its inception, and most of it was likely never to be cataloged. That would be taking the pack-rat impulse too far. Librarians had other things to do, such as develop more powerful search engines to sort through the inchoate mass of data when somebody wanted to find out something truly obscure.

invade & establish theocracy

Great. US officials are admitting what was obvious to many even before the invasion: The US invasion of Iraq will lead to another theocracy. [Wash Post 8/14] [linked from david 8/14 at sivacracy]

“We set out to establish a democracy, but we’re slowly realizing we will have some form of Islamic republic,” said another U.S. official familiar with policymaking from the beginning, who like some others interviewed would speak candidly only on the condition of anonymity.

You would think that after all this time my feelings of rage would be dampened.

People may have very different reactions to someone’s wrongdoing. Anger, denial, forgiveness. Me, I forgive many infractions, then at some point get to a place of deep anger. If there is no acknowledgement, apology, and attempted redress, I swallow the anger and move on — hopefully doing something productive but certainly trying not to live in the anger. But sometimes the wrongdoer comes to their senses & belatedly acknowledges or apologizes. Then I realize that I didn’t forgive, I didn’t forget, and all the anger comes back, doubled, with a new head of steam.

So that’s where I’m at with the Bush Administration and the invasion of Iraq. Reading about the admissions and acknowledgements of US officials — even if they’re not the Bush administration leaders/figureheads — really just infuriates me. Such a waste. Such a goddamn waste. So many lives, Iraqi, American, English, and from everywhere else. Lives tossed away directly with guns and explosions. And lives that will be tossed away for years to come as a result of a devastated infrastructure. More lives lost to resurgent nationalism (here and in Iraq, I’ll note) and Islamic fundamentalism. It’s just such a fucking waste.

google & not-for-profit libraries

More on Google and Siva’s response (and my responses to Siva):

Recap: In response to publisher anxieties & thinly-veiled threats of litigation, Google is implementing an opt-out provision in its scan-copyrighted-library-books program, and delaying scans of copyrighted books until November. [google blog] This has been widely reported as Google backing down. See, e.g., “Chilled by Publishers” (BoingBoing), “Google Sells Out Users” (Copyfight).

Siva Vaidhyanathan had a different take, predicated largely (it seems to me) on the fact that Google is a for-profit corporation. For once, I disagree with Siva, and on two grounds: both with library exceptionalism in this instance and the take on American Geophysical Union. Siva:

Google did not have the right to make wholesale copies of millions of copyrighted books without permission from the copyright holders. Google’s original plan fails every possible fair use test ever tried. See, for example, American Geophysical Union v. Texaco.

If copyright is to mean anything at all, then corporations may not copy entire works that they have never purchased without permission for commercial gain.

Usually I agree (not slavishly. who said slavishly?) with everything Siva (and his minions on Sivacracy) has to say, but I have to disagree with him here on a couple of points.

First, the for-profit corporation issue. Yes, Google is a for-profit corporation, and while they try not to be evil, one could argue that they won’t be able to help it. Siva wishes that libraries would take greater advantage of fair use, and so do I — libraries are wonderful and should be able to do anything they want including lots of things they don’t do now (like, yeah, scan in everything they own). But I take issue with this form of library exceptionalism. Libraries should push fair use in the service and interests of their users, history, and humanity. But libraries are not the sole beneficiaries of fair use, nor should they be. For-profit corporations, not-for-profit corporations, heck, even tax-exempt religions — all should be able to exercise fair use broadly.

Well, Siva says Google is not a library. It’s true that Google is not the mom-and-apple-pie ALA version of a downtown library, complete with modern atrium and skylights for Mayoral gatherings. But I think we have to push on “library” for a bit. The Internet Archive is certainly a library. My home collection is certainly a library. (It even circulates, and I have remote storage, and I recently began a belated investment in DVDs.) Libraries may be private, semi-private, public; for- or not-for-profit; paper or digital. Why is Google not a library?

And tactically speaking, it just doesn’t make sense for information activists / copyfighters to start downwardly limiting various users’ sets of rights. Ultimately, this will come back to bite us: what if libraries start to look more like corporations? In fact, library exceptionalism has not served the library community well: Despite numerous statutory exemptions for libraries, librarians have still retreated into deep conservatism and fear of copyright liability. Librarians realize that the laws governing information transmission are porous, and the laws that apply to for-profit corporations will also affect not-for-profit libraries.

Second, Siva cites American Geophysical Union, 60 F.3d 913 (2d Cir. 1994), very quickly in support of his point that “Google’s original plan fails every possible fair use test ever tried. See, for example, American Geophysical Union v. Texaco.”

AGU is not the law of the land, much less every possible fair use test ever tried. While influential, AGU is the law of the 2nd Circuit. (Not the Fifth, although my brain always short-circuits me there, linking “Texaco” to “Texas/5th Circuit”.) I like to remember that fair use is a fact-based, multi-factor analysis. Paraphrasing one of my copyright professors, multi-factor tests = completely unpredictable results. Each and every case looks quite different and yes, different caselaw applies. There’s a limit to how far you can draw even an influential appellate precedent, as the p2p cases show.

Unfortunately, Siva and everyone else likes to just drop-cite AGU: It was a broad decision that, famously, stands for the idea that potential licensing revenue counts as an (apparently significant) effect on the market. That’s scary, and big, and consequently the decision weighs heavily in the set of bad anti-fair-use opinions. But over-reading it has led to significant nail-biting in the library community. I do agree with Siva that it’s important to remember that AGU took place in a for-profit environment; in fact, I’ve argued that not-for-profit libraries & archives have a lot less to worry about than they think they do from AGU. But the for-profit/not-for-profit status is not the be-all and end-all of the story. AGU demonstrates a sophisticated relationship between the various fair use factors. The potential licensing revenue was significant in large part because of the for-profit status. That means that it’s not the horror story that librarians sometimes fear, but it also means that you can’t take the fair use factors as a simplistic checklist: for-profit or non-profit? market effect (including lost licensing) or no market effect? It doesn’t work that way. The market that is considered is necessarily shaped by the environment in which the alleged infringement took place. Texaco was a for-profit corporation with the resources to do licensing. Librarians have been scared because the lost-licensing-revenue aspect looks even more insane in a public or academic library context than it did in Texaco’s internal special library, routing & private desk copy context. But that particular horror has never fully paraded itself, probably because the outcome is so insane outside of the particular circumstances of Texaco. Context is everything.

And, again thinking tactically, I would argue we ought to work to limit the reactionary conservatism this case fosters, rather than trying to puff it up even more. By drop-citing AGU in the service of anti-corporate use of information, Siva made the copyright maximalists’ case. And that’s not good for libraries or Google.


A little aside: Derek Slater disagrees with Siva on AGU, too, from a different angle. Derek points out that the Appellate Court found “undue emphasis” on commerciality in the District Court’s opinion. Derek’s point is well-taken, but I still read the commercial context as significant. Between the District Court & the Appellate Court opinions, the Supreme Court issued Campbell, which expressly reversed any presumption that for-profit uses were not fair. The Appellate Court wanted to uphold the lower court’s ruling, but had to deal with Campbell; hence the nod to Campbell. But the Appellate Court was really pointing out that Texaco’s use was still a traditional library use, even if in a for-profit environment.

We do not mean to suggest that the District Court overlooked these principles; in fact, the Court discussed them insightfully, see 802 F. Supp. at 12-13. Rather, our concern here is that the Court let the for-profit nature of Texaco’s activity weigh against Texaco without differentiating between a direct commercial use and the more indirect relation to commercial activity that occurred here. Texaco was not gaining direct or immediate commercial advantage from the photocopying at issue in this case – i.e., Texaco’s profits, revenues, and overall commercial performance were not tied to its making copies of eight Catalysis articles for Chickering. Cf. Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) (revenues of reprographic business stemmed directly from selling unauthorized photocopies of copyrighted books). Rather, Texaco’s photocopying served, at most, to facilitate Chickering’s research, which in turn might have led to the development of new products and technology that could have improved Texaco’s commercial performance. Texaco’s photocopying is more appropriately labeled an “intermediate use.” See Sega Enterprises, 977 F.2d at 1522-23 (labeling secondary use “intermediate” and finding first factor in favor of for-profit company, even though ultimate purpose of copying was to develop competing commercial product, because immediate purpose of copying computer code was to study idea contained within computer program).

[38] We do not consider Texaco’s status as a for-profit company irrelevant to the fair use analysis.

The Appellate Court then goes on to talk about the value to the user of the allegedly infringing activity. This discussion is critical, because it sets up the fourth factor discussion about the lost revenues.

As a pragmatic reading, I see this tweaking of analysis as a way for the Appellate Court to deal with Campbell. In its effect, the case has been bad; it has, as I’ve stated, been an oft-cited case when librarians are playing conservative. In its reasoning, the case is also bad: the potential-lost-revenue argument is virtually boundless. But my sense is that the potential-lost-revenue argument, although terrible, has not yet fulfilled its potential — maybe because it is so boundless.

In short, I think American Geophysical Union is over-rated, and the commercial context is critical.

… a bit more coming later hopefully

update 8/14: The massive amounts of media coverage given to the Google withdrawal confirm my opinion that tactically this sucks, for libraries, authors, readers and anybody else who actually uses copyrights. So much of this coverage is described as a copyright flap, Google’s copyright misstep, etc. The bounds of fair use have just shrunk in the court of public opinion, and that’s a much longer-lasting loss than American Geophysical Union, Napster or any other case.

update 8/15: See, this is why I like Siva so well: I wish I had time today to respond to all of the good comments zooming around the blogosphere and e-mail. …. They are all helping me formulate my arguments better. I can’t help but compare favorably this response to certain other thread-baiting that’s happening on a nearby (non-IP-related) blog. And I know Siva will eventually come up with some very cogent ideas on this issue that will make me go hmm.

Related posts: interesting reading early saturday morning 8/13essence of library, 8/17

guardsmark & fraternization

Some more thoughts on the recent NLRB decision restricting employees’ off-duty fraternization. Guardsmark, LLC, 334 NLRB No. 97 (2005) (decision in pdf):

The Board majority found the rule at issue here (in Guardsmark): “While on duty you must NOT … fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees” to be similar to a rule in Lafayette Park Hotel, 326 NLRB 824 (1998), enfd 203 F.3d 52 (D.C. Cir. 1999) which stated “Employees are not allowed to fraternize with hotel guests anywhere on hotel property.” A limited dissent felt that Lafayette Park Hotel‘s rule was too broad and so was this one. I see significant differences in the two cases.

  1. Lafayette Park Hotel is about employee-guest relations, and might reasonably implicate questions of adequate responsiveness to guests; Guardsmark is about relations between Guardsmark employees and between Guardsmark Employees and Guardsmark client employees.
  2. The Lafayette rule regulated only conduct at the workplace. The Guardsmark rule purports to regulate on- and off-duty conduct regardless of location.
  3. Lafayette used the phrase “fraternize”, which when used by itself is usually taken to mean “hang out”. The Board felt that “in context, the rule here is reasonably understood as prohibiting personal entanglements, rather than activity protected by the [National Labor Relations] Act.” Actually, it is pretty clear that this rule is meant to sound much stronger than the rule in Lafayette was meant to sound. It is significantly broader in the ways already mentioned, and its significantly broader in its description of the prohibited conduct. The rule says fraternize, adds date, and then adds “become overly friendly”. That phrase in particular is, in First Amendment terms, both overbroad and vague. From reading it, one has no idea of what sort of conduct is prohibited, and one senses that almost anything could be prohibited.

The Board attempts to justify this because of “heightened security concerns”. Yes, I’m sure a security contractor company can increase security by prohibiting friendships. Spartans and every army ever notwithstanding, security forces are just much more secure when their employees barely know the people they work with.

Aggghhh.

Related posts: 8/13

interesting reading, early saturday morning

Up early for my spouse who caught a red-eye. Now she’s resting peacefully and I of course can’t get back to sleep. But that’s okay, because there’s the Internet!

  • Positive outcomes of BlogHer: Mary Hodder at Napsterization is establishing a Speakers’ Wiki.

  • In response to publisher anxieties & thinly-veiled threats of litigation, Google is implementing an opt-out provision in its scan-copyrighted-library-books program, and delaying scans of copyrighted books until November. [google blog] This has been widely reported as Google backing down. See, e.g., “Chilled by Publishers” (BoingBoing), “Google Sells Out Users” (Copyfight). I agree, sell-out, chill, yes, yes, but am taking a moment to appreciate the sweetness of the opt-out option as default.

    Siva Vaidhyanathan had a different take, predicated largely (it seems to me) on the fact that Google is a for-profit corporation. For once, I disagree with Siva, and on two grounds: both with library exceptionalism in this instance and the take on American Geophysical Union.

  • Ed Felten on Freedom to Tinker [8/9] talked about the DRM in Microsoft’s Longhorn-cum-Vista. Copyfight (8/9) summed it up and added this pithy observation: “[T]his isn’t about stopping mass copyright infringement or pleasing Hollywood. It’s about keeping “consumers” locked in and people who develop potentially competing products locked out.” See also Derek Slater at EFF Deeplinks (8/9).

  • On Balkinization, Brian Tamanaha ponders intelligent design, reminding us that the whole kerfluffle is not about debates between religion and science, but about debates between a few modern religious leaders who are picking issues:

    Darwin’s 1859 publication of The Origin of Species incited a wicked backlash from religious quarters in the United States, pitting science directly against religion. But within three decades an accommodation had been achieved, as Richard Hofstadter described in Social Darwinism in American Thought (1944):

    Science, [Le Conte] urged, should be looked upon not as the foe of religion, but rather as a complementary study of the ways in which the First Cause operated in the natural world. Whatever science might learn, the existence of God as First Cause could always be assumed.

    This raises the question: why has a sensible way to reconcile faith and science that has worked for so long become unacceptable to many religious leaders in this country? This is not like the other ongoing battles over religion in the public sphere and the separation between state and church (school prayer, Decalogue displays, funding for parochial schools), all of which raise debatable issues of public and private values.

    Putting it this way helps keep the focus on the small set of religious leaders who are sowing all this unnecessary discord.

    I feel I must document the provenance of this observation: I’m quoting Brian Tamanaha who’s quoting Richard Hofstadter who’s citing Joseph Le Conte who “followed” Asa Gray. I’m just tickled by the lengthy chain, but the observation stands on its own regardless of sources.

  • fafblog has been brilliant recently: two on intelligent design: creation science, creation technology! [fafnir 8/10] and overwhelming scientific proof [giblets 8/2]. Then more on torture: claustrophobic techniques [medium lobster 8/4] … in the kingdom of the one-eyed man, the best wars are blind [medium lobster, 7/28]. Segueing nicely from torture, the democrats: the great divorce [fafnir 8/3] . Last but not least, response to some recent efforts by the American Family Assn to provide gay checklists for childrearing: how to tell how gay your gay son is [giblets 8/9]. How despicable is this fear-mongering checklist in the light of this fearful Christian response? [See queerday 7/18, Tampa Bay Online 7/13] Too much anger. That’s why I read fafblog. I could just do a blog indexing fafblog. And still keep the title, ‘derivative work’.

  • A wretched decision out of the NLRB, restricting employees’ off-duty fraternization. Guardsmark, LLC, 334 NLRB No. 97 (2005) (decision in pdf); more info at american rights at work; linked from tom tomorrow. A bit more from me on this case.

Of course, two hours later, the spouse is still sleeping like a baby, and now “Adelaide’s Lament” is going through my head. It’s my own fault for putting iTunes on random shuffle through my entire 80+G music library last week, but still, I last heard that song over a week ago. Probably at some point this morning I had a low-level meditation on my own minor cold and it triggered a “Guys & Dolls” flashback. Unlike LSD, perhaps “Guys & Dolls” really does hang out in your fat cells waiting to be re-triggered.