IPTAblog

If you really want to hear about it

2009-07-01T21:49:51Z

The NYT City Room blog reports that J.D. Salinger won a preliminary injunction in his lawsuit against the writer of , Judge Rules for Salinger in Copyright Suit: "In a 37-page ruling filed on Wednesday, Judge Batts issued a preliminary injunction — indefinitely barring the publication, advertising or distribution of the book in this country — after considering the merits of the case."

Without reading 60 Years Later: Coming Through the Rye or the ruling, it's difficult to see what features made the book an infringing derivative work rather than transformative fair use parody.

Here is the order granting the preliminary injunction, Salinger v. Colting (09-Civ-5095, July 1, 2009)

The best fan video in the world?

2009-05-15T16:06:46Z

Via Top Gear's blog, I found this link to a fan-made Top Gear style search for the beat driving road in California:

The Californians were disappointed that Top Gear dismissed the entirety of North America while searching for the best driving road in the world. So, they went to look for the best driving road in California and ended up creating an hour-long film chronicling their journey, in the style of Top Gear.

And they get the Top Gear style dead on.

Three white male presenters embark on a road trip in different cars, each of which represents a different interpretation of a common theme. In this fan film, the theme is sporty cars purchased for less than $5,000. A driver in a racing helmet sets lap times and a marker to race against (ala The Stig.) The three presenters compete in various challenges and comment on their respective cars and how a particular drive represents a broader theme about motoring, masculinity, nationality, or some metaphor for life. During the road trip, the three presenters are filmed from dashboard mounted cameras. Often, a presenter's voiceover narration melds seamlessly into thoughts spoken while driving during the road trip. Scenes open with a camera zooming out from a car or panning across a landscape with the frames heavily vignetted vignetting. Liberal use of shots of the 3 presenters driving alongside on the highway and the way in which music is used in the soundtrack all follow the Top Gear style.

Does that make it a copyright infringement?

If enough of the elements that make up Top Gear are borrowed, is the style used in a manner consistent with fair use? This is a non-commercial, non-competitive work that responds to a particular segment filmed on Top Gear. The Search for the Greatest Driving Road in California adopts the style to respond to and parody Top Gear. The creators sought to call out Top Gear for their snub of California's roads-- in other words, to criticize Top Gear, by showing that Top Gear could have found a road in California worthy of comparison with those in the Alps.

Were this a pilot for a series commissioned by a network, would this be an infringing work? (A pilot for an American version of Top Gear, starring Adam Corolla, was made for and ultimately passed on by NBC last year.)

Shatner, Montalban, iPod and Kindle

2009-04-30T20:15:38Z

Dvice tests out the range of expression in the text-to-speech systems in the Kindle 2 and iPod Shuffle by having the two gadgets re-enact the most memorable scene from Star Trek II: The Wrath of Khan:

Good audiobook readings aren't in any danger of being replaced by computers, yet.

Previously:
More Kindling (Mar. 9)
Fitter, Happier, More Productive (Feb. 27)
Take a look, it's in a book (Feb. 11)

A F#*&ing brilliant Supreme Court ruling?

2009-04-28T21:00:02Z

The Supreme Court released its ruling in FCC v. Fox Television Stations, et al. (07-582), in which a 5-4 majority found that the FCC acted on a rational basis in changing its policy on fleeting expletives. In an opinion penned by Justice Scalia, the Court declined to rule on the First Amendment question of whether indecency regulations are still constitutional. The majority decided the administrative law issue and sent the First Amendment issue back to the Second Circuit.

In his brief concurrence, Justice Thomas suggested that technology and today's fractured media landscape may not bode well for indecency regulation in a future case testing the constitutionality of broadcast indecency regulation.

Lyle Denniston, Scotusblog, Court partly upholds “dirty words” ban, "The main opinion stressed that it was dealing only with the question of whether the flat ban was “arbitrary and capricious” as a matter of law. The Court said it did not violate that standard, but that is as far as the ruling went. The Second Circuit Court, when the case returns there, will have a chance to pass upon broadcasters’ constitutional challenges to the ban. The lower court did not do so on the first review, but strongly hinted then that the ban would not survive a direct First Amendment challenge."

The Wall Street Journal, Court Upholds FCC 'Fleeting Expletive' Rule "The court reversed a lower court ruling that the Federal Communications Commission didn't follow proper procedures in adopting its new rule. But the ruling, by Justice Antonin Scalia, didn't address the underlying constitutional issue -- whether the First Amendment permits the FCC to punish such speech."

Los Angeles Times, Supreme Court upholds regulation of 'indecent' language on TV: "The Supreme Court said today that TV viewers should not be hit with the 'F-word' or the 'S-word' during prime-time broadcasts, upholding the government's power to impose huge fines on broadcasters for airing a single expletive."

Adam Bonin at Daily Kos, nicely summarizes the key points of the opinion and various dissenting and concurring opinions, SCOTUS Issues "F**king Brilliant" Decision

Previously:
FCC v. Fox Oral Arguments Today (11/08)
Court Grants Cert in FCC v. Fox (3/08)
Second Circuit strikes strict indecency regs (6/07)
Fox v. FCC Oral Arguments (12/06)

Food & Trademark News

2009-04-23T21:12:28Z

The New York Times reports, Lawyers Enter Twitter Tempest: "Mr. Rucinsky, a 30-year-old part-time art dealer who uses his middle name as his last name when he writes, sends silly blurbs on Twitter and writes inane blog postings that purport to reflect Ms. Freeman's musings about New York City restaurants, like 'Governor of Texas raving about Secession on TV all week. Must be great word of mouth for Bouley!' His fake Restaurant Girl also ventures into more cosmic concerns: 'Does anyone know what happens to all the chocolate bunnies no one bought for Easter? Are they put to sleep?'"

Freeman does have a trademark registration for RESTAURANT GIRL. Ruckinsky's Twitter account at twitter.com/restaurantgirl claims to be "an unaffiliated parody of Danyelle Freeman, the real Restaurant Girl who can be found at restaurantgirl.com. She's not this clever or ambitious."

NY Magazine's Grub Street blog reports, Hershey's Tells Jacques Torres to 'Kiss' His Champagne Bon Bons Good-bye -- Grub Street: New York Magazine's Food and Restaurant Blog: "Jacques Torres tells us that he recently received a letter from a lawyer for Hershey's Chocolate telling him that the 'Champagne Kiss' he's been serving for two years (a $1.50 bon bon made with pink Champagne) is an infringement of the Hershey's Kiss copyright (sic)." (That would be a trademark.)

Is Internet TV the Future?

2009-03-27T20:37:35Z

HDnet's Mark Cuban and Boxee's Avner Ronen have had an interesting public dialog about the future of TV: a lively debate with mark cuban. Ronen posits that viewers will flock to internet video because of the breadth of content while Cuban suspects that traditional distribution will trump all because of quality.

I suspect that they're both right.

Traditional broadcast/cable/satellite distribution is far better at broadcasting popular material to many people at once in high quality. Over-the-air HD broadcast far surpasses internet video in quality and scales easily.

With live events and the first airing of serial entertainment, the desire to watch live and then the correlated value in watching together for watercooler (or online watercooler) discussions keeps broadcasts relevant. If American Idol happened last night, you're going to talk about it tonight. For audio/video quality and currency, broadcast wins.

The internet opens up a vast variety of material available. Between archived material from legacy copyright owners and new material produced for the internet by small independent producers (often at shockingly low costs), the internet has a wealth of content that can't be matched by traditional broadcast or cablecast distribution.

On Tuesday, Boxee gathered 600 users, fans and partners at Webster Hall to learn about new features coming to the next version of the software as well as some of the internet-based content available through the platform. And to get free T-shirts. (Thanks, Boxee.)

Boxee is an internet video browser for a television. It makes it possible to sit on your couch and watch online video from a multitude of sources on your TV, instead of in front of your computer.

What's interesting is that Boxee users seem prefer to access sources approved by copyright owners. More users want to access Hulu than to download video files via Bittorrent. They want the program creators to be able to earn money (and continue to film new programs.) Boxee the company wants to offer the best experience to its users (for free) while also helping to drive revenue to the content providers. And the internet video content providers want to get their material onto TV. (Well, except for the networks who have traditional distribution which may be cannibalized by internet distribution. Since ads sell for higher rates on the broadcast or cablecast than for the same content streamed over the internet, taking the internet version to TV may simple replace higher-value audience with lower-value audience.)

Boxee is going to remain a niche product for the immediate future. Not many people have computers hooked up to their TV to watch internet programming. I have Boxee installed on my Apple TV. Installing Boxee is not the easiest process, since it requires creating a USB "patchstick" which then installs the Boxee software on Apple TV. Boxee provides a useful supplement to Apple's software, which works very well for downloaded and ripped content stored locally in iTunes, but is limited to streaming content only from YouTube, not from the rest of the internet. Boxee connects the TV to the rest of that streaming.

The alpha version can be confusing and frustrating to use, with the main menu hidden off to the side of the screen. Compared to the Apple TV's native interface, Boxee's can feel second-rate. In most contexts, Apple's interface uses larger fonts and higher-contrast text that is easier to read from the couch. Boxee's alpha software isn't nearly as polished as AppleTV's second-generation interface.

While I have an Apple TV and use Boxee to watch shows, I also still subscribe to cable television and will prefer to watch programs recorded on TiVo to programs streamed on Boxee. The picture and sound quality is far superior on cable TV. That isn't to say that internet distribution won't get better in the future.

How immediate is this future? Boxee is actively working to develop their software to make it easy to use. And the fact that it is slightly clunky now isn't much of a detriment to the early adopters and nerds who are using this young software. The viewer who doesn't have the patience to learn the software is certainly not going to take the time to patch an Apple TV or connect a computer up to their TV as a media player. This version of Boxee is a glimpse at the next generation of television, where Boxee is the default interface for a set-top box or a television itself. Ronen expects to see such boxes running Boxee available within the next year.

And that's when the masses are going to be disappointed with their broadband connection and the quality internet video.

Netflix is finding that some users of its streaming service get less than ideal quality because of the variables involved in the networks between the user and Netflix. Many US "broadband" internet connections simply don't have the bandwidth to stream HD video and so the quality falls back to something lower.

How good is good enough? MP3 suffices for most music listeners. But having recently upgraded to an HDTV, I can't imagine going back to fuzzy low resolution video.

Until the broadband networks in America catch up to those in the countries that have higher-bandwidth networks, internet video is likely going to remain a secondary niche. Of the two programs I watched online this week, The Amazing Race's stream had a few instances where motion became jerky and the audio and video fell out of sync. On Kings, the picture was noticeably blurrier than my HD recording of the pilot. Overall, these were pretty good viewing experiences, but still materially inferior to programs recorded from cable.

Cable companies have offered their own video-on-demand services since the advent of digital cable. Edge-caching content at a major ISP may be cheaper for streaming media than for the ISP to upgrade its service. In addition, bandwidth limits and caps drive video usage to legacy networks. Even with IP-delivered video, cable companies could favor in-house on-demand video over video sourced from the internet at large.

The internet is the future of video, with shows living there long after they've been broadcast. But that doesn't mean that broadcast is imminently disappearing.

Previously: Preparing for the Post-TV World

Subtitles and Meaning

2009-03-24T22:16:52Z

Consumerist, Movies: Dumbed Down Subtitles Ruin US Release Of 'Let The Right One In': "What if you started to watch Let The Right One In, a highly acclaimed foreign film from last year, and you discovered the US release had been renamed Open Up!? That's sort of the experience consumers are having when watching the new release of the movie on DVD and Blu-ray. At some point between the theatrical release and the DVD release, the distributor replaced the original, nuanced English subtitles with dumbed-down ones."

What was the situation that led up to replacing the original subtitles with second-rate subtities? A licensing issue? Does the filmmaker have a claim against the distributor for mangling the original intent of the film with bad subtitles? Does the structure of film distribution contracts leave the filmmaker with any recourse? Is there a moral rights concern?

More Kindling

2009-03-10T03:02:21Z

Even though Amazon agreed to allow authors and publishers the right to decide whether Kindle e-books can be read aloud, here are couple more (belated) links about Kindle 2 reading e-books via text-to-speech synthesizer.

LA Times, Amazon Kindle 2 makes authors' e-Books more compelling, "Innovators such as Amazon are and should be free to create devices that help consumers exploit all of the rights they obtain when they purchase books and other copyrighted material. And by the way, Authors Guild: Amazon sells e-books. The Kindle makes those products more appealing to consumers, which makes them more valuable to authors and publishers. If authors hope to compete in the digital era, they need the e-book market to succeed. Stripping features from the Kindle 2 won't help."

Derek Bambauer, Info/Law, Kindle Owners of the World, Unite!: "Roy Blount Jr., writer and president of the Author’s Guild, has a jeremiad in the New York Times about Amazon’s Kindle, and its ability to read books aloud. Blount thinks that is a violation of authors’ rights. After giving some thought to his argument, I can only conclude that Blount should stick to sports, because he’s pretty confused about copyright."

Ben Sheffner, Copyrights & Campaigns, Amazon compromises on Kindle 2's 'read-to-me' feature; who can blame them?: "Remember: Amazon can only offer books via Kindle because it has contracts with authors and/or publishers that permit it to reproduce, display, and distribute their books in digital form. I haven't seen such contracts, but I'm confident they contain myriad deal points: money, term of license, and exquisite detail about what Amazon is actually permitted to do with the digital copies."

On Late Night with Jimmy Falllon, Kindle 2 reads the classics:

Which is a similar, but opposite joke, as Late Night with Conan O'Brien's James Lipton reads the lyrics to Kevin Federline's Popozao.

Fitter, Happier, More Productive

2009-02-27T21:50:47Z

In the New York Times, Authors Guild president Roy Blount, Jr, makes the case against the Kindle's text to speech synthesizer, The Kindle Swindle?: "True, you can already get software that will read aloud whatever is on your computer. But Kindle 2 is being sold specifically as a new, improved, multimedia version of books — every title is an e-book and an audio book rolled into one. And whereas e-books have yet to win mainstream enthusiasm, audio books are a billion-dollar market, and growing. Audio rights are not generally packaged with e-book rights. They are more valuable than e-book rights. Income from audio books helps not inconsiderably to keep authors, and publishers, afloat."

Engadget's Nikay Patel interviewed Paul Aiken, Executive Director of the Authors Guild, "Just because Amazon does something a bit clever with their ebook reader and adds technology which allows them to render text into speech doesn't mean they get to exploit it for all it's worth, without sharing with authors and publishers. In our view this is a legitimate market."

In the last few years, lawyers have been digging into musty old file cabinets to review licenses for rights licensed for old films and television shows, in order to clear them to sell the works on DVD or make available on streaming services. These original licensing agreements never imagined home video or internet streaming uses and not granted rights to those then-uninvented possibilities. Did publishers merely fail to imagine the possibilities?

Is an audiobook recording a completely different product than an e-book run through a text-to-speech synthesizer? Does a book of sheet music compete in the same marketplace with a recording of that same piece of music? What about a MIDI file that allows a synthesizer to play back a piece of music? Does that compete with a recording? With the sheet music?

Update. Right after I posted this, Amazon announced that it would offer publishers the ability to block the Kindle from reading books to the Kindle owner. Brad Stone reported on the NYT Bits Blog, Amazon Backs off Text-to-Speech Feature in Kindle. Amazon's states,

"Kindle 2's experimental text-to-speech feature is legal: no copy is made, no derivative work is created, and no performance is being given. Furthermore, we ourselves are a major participant in the professionally narrated audiobooks business through our subsidiaries Audible and Brilliance. We believe text-to-speech will introduce new customers to the convenience of listening to books and thereby grow the professionally narrated audiobooks business.

Nevertheless, we strongly believe many rights-holders will be more comfortable with the text-to-speech feature if they are in the driver's seat."

Lessig comments, Caving into bullies (aka, here we go again): "We had this battle before. In 2001, Adobe released e-book technology that gave rights holders (including publishers of public domain books) the ability to control whether the Adobe e-book reader read the book aloud. The story got famous when it was shown that one of its public domain works -- Alice's Adventures in Wonderland -- was marked to forbid the book to be read aloud."

(Post title reference: Radiohead's song Fitter Happier features Macintalk on lead vocals.)

Previously: Take a Look, It's in a Book.

Remix Revisited

2009-02-27T05:18:56Z

The NY Public Library event Remix: Making Art and Commerce Thrive in the Hybrid Economy with Lawrence Lessig, Shepard Fairey, Steven Johnson was well-attended and lively discussion, even if the panel was comprised entirely of copyright moderates with no mainstream maximalists or crazy abolitionists.

Here are some rough notes, transcribed and re-ordered from what I wrote down at the panel:

On the continuum of copyright use, the panel talked about a few different uses that can be classified in the following ways:

Incidental and de minimis use. This is where a copyrighted work may appear in another work, either as part of the background. Because of the pervasiveness of copyrighted works all around us, perhaps a more generous threshold than the 6th Circuit's Bridgeport sampling standard (where any use is an infringing use, no matter how small) is the sensible standard.

Transformative use for commentary, criticism
Here is, obviously, the heart of the panel. If a work is transformative and used for non-commercial or substitutionary purposes, it should be classified-- more often than not-- as a fair use.

Is mashup creative? Does it shed a light on the works it builds from? Is the law able to judge the merit of the creativity? If a mashup derives its impact from borrowing the hook, core, or the entire narrative structure, shouldn't there be some level of use that deserves compensation? Where do we draw the line?

But non-commercial transformative uses of copyrighted works online are often lumped in for enforcement purposes with infringing distributions or performances.

How often do we see iconic images in a public space that aren't commercial images?

Commercial substitution.
Siknce Grokster, P2P usage is up substantially. And what percentage of those uses are simply straight-up infringing uses that substitute for purchases of copies? How much P2P usage is simply plain old piracy of current, popular, copyrighted works? That P2P usage is up since Grokster isn't necessarily something to celebrate and RIAA lawsuits aren't necessarily something to ridicule. Widescale piracy does need to be deterred. Whether these lawsuits are

Miscellany
At its best, grassroots activism is actually from the roots, not from above. And it's going to be messy.

Institutions are made out of people. They're PEOPLE! PEOPLE!

The NY Times' Jennifer Schuessler attended and wrote up a succinct summary of the discussion, Steal This Blog Post! "The event felt a little like Burning Man for the so-called Copy Left, with body art to match. Shortly before the talking started, two big guys with big cameras ushered a woman with a cool shoulder tattoo of Fairey’s Obama poster out of her seat. Enforcers from the Associated Press, which claims Fairey violated its copyright, perhaps?"

Here's the complaint in Fairey's lawsuit against the AP seeking a declaratory judgment that "Hope" is not an infringing derivative work, Fairey v. AP

The New York Times, Artist Sues The A.P. Over Obama Image

Yesterday, Fresh Air broadcast an interview with Fairey, Shepard Fairey: Inspiration Or Infringement?, "He joins Fresh Air to talk about the image, the dispute, and why he thinks his poster qualifies as a protected work under Fair Use provisions."

Fairey has inspired a whole genre of Hope-inspired images and parodies, such as a
Watchmen-inspired image

Preparing for the Post-TV World

2009-02-22T20:06:20Z

Thanks to the signing of the DTV Delay Act, television broadcasters continue to send out their sweet, sweet analog signals a full week after the original cutoff date. And those broadcasters will continue to broadcast both analog and digital signals until June 12.

Note that 641 of the 1800 licensed television broadcast stations across the country have already switched off their analog broadcast facilities.

While many television viewers in the US subscribe to cable or satellite service, there is a significant public interest in ensuring that anyone who wishes to obtain broadcast television should be able to. After all, these are public airwaves, which the broadcasters are allowed to use by authority of Congress. Broadcast TV is not merely soap operas, infomercials and bad sitcoms. It is local news, major public events and news.

New York Times, Digital TV Beckons, but Many Miss the Call, "That so many viewers here and around the country risk losing something as basic as a free television signal is a function, at least in part, of the government’s failure to anticipate that those most affected would be among the nation’s most frail and vulnerable."

Eliot Van Buskirk, Wired.com, How We Bungled the Digital Television Transition: "America's transition to over-the-air digital television signals, which netted the government $19 billion in a wireless spectrum auction, was doomed from the start, thanks to a flawed voucher program and a time frame that left the country stranded between administrations."

At the same time, studios and networks are connecting with audiences outside of broadcast, cable and satellite, thanks to the internet.

But don't plan on using the internet to replace current TV service just yet.

Boxee makes a media center software application that runs on computers as well as the Apple TV media extender. Boxee's best feature is that it connects TV style viewing with internet video streaming. This provided a way to watch programs from the deep library of the NBC and Fox joint venture, Hulu.

That was until Hulu's "content partners" (the studios who own the copyrights on the various programs) discovered Boxee and realized that they hadn't contemplated viewers watching Hulu on real televisions and asked Boxee to discontinue streaming Hulu programming. Interestingly, Hulu never had an agreement with Boxee.

Boxee, The Hulu Situation, "our goal has always been to drive users to legal sources of content that are publicly available on the Internet. we have many content partners who are generating revenue from boxee users and we will work with Hulu and their partners to resolve the situation as quickly as possible."

Hulu, Doing Hard Things, " While we never had a formal relationship with Boxee, we are under no illusions about the likely Boxee user response from this move. This has weighed heavily on the Hulu team, and we know it will weigh even more so on Boxee users."

Does internet streaming generate revenues comparable to selling advertising on first-run broadcast, rights to second-run syndication and DVDs? (Obviously not). How can copyright owners contemplate future uses of licensed content when entering into licensing deals?

Marc Hedlund, Hulu's Superbowl Ad and the Boxee Fight "To your TV is something completely different, and from the "content providers'" point of view, completely wrong. Aren't Apple and Tivo and YouTube bad enough as it is?"

Dan Wallach, Freedom to Tinker, Hulu abandons Boxee—now what?: "Also interesting to note is the acknowledgment that there was no formal relationship between Hulu and Boxee. That's the power of open standards. Hulu was publishing bits. Boxee was consuming those bits. The result? An integrated system, good enough to seriously consider dropping your cable TV subscription."

Janko Roettgers, NewTeeVee, Is Hulu Driving People Back to Piracy? "Applications like the Torrent Episode Downloader (TED) make it easy to subscribe to whole seasons of your favorite TV show via BitTorrent, and established TV torrent sites like EZTV even offer P2P streaming for immediate access."

Fred Wilson, A VC (and investor in Boxee), Why Hulu Should Embrace Boxee: "There's a consistency to the comments and it is confusion first and foremost. Hulu users don't understand the distinction between watching Hulu through Firefox or Safari and wathicng Hulu through Boxee. And many of them are coming back to watching TV because they can watch over the internet, when they want, and how they want. They feel liberated by Hulu and Boxee and see them as a match made in heaven. Which they are. And I sure hope that Hulu and its content partners come to that realization quickly."

It is possible to use the internet to watch most television programming. And The Wall Street Journal, reports that cable operators are looking to secure internet rights to have a role as content aggregators in the post-TV internet video world Cable Firms Look to Offer TV Programs Online: "Top cable-television providers and TV networks are exploring a sweeping solution to the threat of online video: putting large numbers of cable shows online, but accessible only to cable subscribers."

But we're not in the post-TV world quite yet.

Streaming Hulu content through Boxee (at least on an Apple TV) is a second rate experience to watching the same programs on broadcast or cable. Shows look far better on the digital broadcast or cablecast than on internet streaming. (Even ABC's very nice HD streams of Lost aren't as smooth as their HD broadcast.)

But as music listeners have shown, there's a threshold where portability and convenience outweighs quality. For most people MP3 quality is good enough for music. Higher fidelity digital standards (Super Audio CD, DVD-Audio) never managed to compete with the convenience of MP3. For video, online streaming is obviously coming close enough to that point where convenience trumps quality.

John Adams, not Samuel Adams

2009-02-13T22:16:01Z

The Brooklyn Paper, Tapped out! Hook brewery is ordered to stop making ‘Obama’ ale: "Federal agents have ordered a Red Hook brewery to stop making its popular 'Hop Obama' ale — a beer that was first brewed during the presidential campaign as a way of supporting the then-underdog candidate. The cease-and-desist order was issued by the Tax and Trade Bureau of the federal Bureau of Alcohol, Tobacco and Firearms on the grounds that Sixpoint Craft Ales did not have permission from to use the president’s likeness on the tasty, hop-heavy brew."

Take a look, it's in a book

2009-02-11T22:54:01Z

This week, Amazon announced the details of its second generation Kindle e-book reader. One of the new features is text-to-speech software that can read aloud the text of a document stored on the Kindle.

The Wall Street Journal reports that the Authors Guild is not happy with the feature, "They don't have the right to read a book out loud," said Paul Aiken, executive director of the Authors Guild. "That's an audio right, which is derivative under copyright law." New Kindle Audio Feature Causes a Stir

Typically, audio books are derivative works of the original work and are fixed in a recorded medium. The reader adds his or her own interpretation to the text. The work can stand alone as an artistic creation. (See e.g. the accolades that Jim Dale has received for his readings of the Harry Potter books). However, a Kindle 2 owner could foreseeably forego buying the more expensive audiobook to choose to read aloud the e-book.

But is the Kindle text-to-speech reading a derivative work? With the Kindle 2, the computer is generating a reading of the original work dynamically for the portion of that work the Kindle user chooses to have read aloud. Is it ever considered fixed in a tangible medium? If the text-to-speech reading isn't fixed, then it can not be a derivative work, since a work must be fixed in a tangible medium in order to be copyrightable.

If publishers worry about text-to-speech affecting the market for audiobook rights, perhaps e-book rights (and thus e-books themselves) will become more expensive.

Engadget's Nilay Patel analyzes, Know Your Rights: Does the Kindle 2's text-to-speech infringe authors' copyrights?: "This is actually pretty tough stuff -- as far as edge cases go, this one pushes right up against the boundaries of the current law. On one hand, you definitely have the right to read books that you own out loud using whatever tools you want, and on the other, authors definitely have the right to prevent others from selling audio versions of their works. The Kindle's text-to-speech feature blurs the lines between books and recordings, and that means those two rights are in conflict with each other."

See also John Siracusa's take on the past, present and future of the e-book market, The once and future e-book: on reading in the digital age - Ars Technica: "A veteran of a former turning of the e-book wheel looks at the past, present, and future of reading books on things that are not books."

Tangentially related, Apple's text-to-speech software, MacInTalk, has a major film credit in its resume. In Pixar's Wall-E, MacInTalk voiced the character Otto.

Update (2/12). Neil Gaiman weighs in with a Quick argument summary, "When you buy a book, you're also buying the right to read it aloud, have it read to you by anyone, read it to your children on long car trips, record yourself reading it and send that to your girlfriend etc. This is the same kind of thing, only without the ability to do the voices properly, and no-one's going to confuse it with an audiobook. And that any authors' societies or publishers who are thinking of spending money on fighting a fundamentally pointless legal case would be much better off taking that money and advertising and promoting what audio books are and what's good about them with it."

Evan Brown, Does the Kindle 2’s text-to-speech feature violate copyright law? "Does Aiken have a legitimate gripe? I say it depends on the technology. And the fact that there could be a difference based merely on a technological setup underscores how digital technology has sent some aspects of copyright fumbling towards absurdity."

YouTube, Fingerprinting and Fair Use

2009-02-03T23:02:40Z

Critic and filmmaker Matt Zoller Seitz wirtes an essay about how YouTube and the DMCA Takedown procedure are harming online film criticism, The House Next Door: Copy Rites: YouTube vs. Kevin B. Lee: "When the history of intellectual property law is written, January 12, 2009 should be marked as a decisive moment. It was the day that my friend, fellow House Next Door contributor and sometime filmmaking partner Kevin B. Lee saw his entire archive of critical video essays deleted by YouTube on grounds that his work violated copyright."

The web has the potential to make multi-media criticism accessible and easy to create. Criticism and comment on a work is a paradigmatic example of Section 107 fair use.

However, because video is complex and bandwidth intensive, video hosting sites like YouTube in particular have made it possible for the non-technical critic to embed videos into a web page. And these video hosts have little desire to defend their users' alleged infringements as non-infringing fair uses. The DMCA §512(c) safe harbor creates an incentive for video hosting providers to respond promptly to notices of alleged copyright infringement and take down those allegedly infringing videos.

With the rise of audio and video fingerprinting technology, YouTube and other video hosting sites may be scanning user uploads for potential copyright infringements of works owned by their content partners. YouTube is offering its users the ability to replace copyrighted music in soundtracks with music licensed to YouTube's music library.

The EFF's Fred Von Lohmann calls the deployment of this audio fingerprinting technology, YouTube's January Fair Use Massacre: "It's clear from the Warner Music experience that YouTube's Content ID tool fails to separate the infringements from the arguable fair uses. And while YouTube offers users the option to dispute a removal (if it's an automated Content ID removal) or send a formal DMCA counter-notice (if it's an official DMCA takedown), many YouTube users, lacking legal help, are afraid to wave a red flag in front of Warner Music's lawyers. That's a toxic combination for amateur video creators on YouTube."

Does YouTube have a responsibility to promote fair use? Or is it actively helping its users by forcing them to avoid any uses that might possibly infringing?

Benchler's Thoughts on Broadband Stimulus

2009-02-03T19:42:44Z

Yochai Benchler compares the differing approaches towards creating economic opportunity through supporting broadband development in the economic stimulus bills introduced in the House and Senate, Broadband Stimulus: "Weaker or stronger, the fact that both the House and Senate bills clearly tie the funding to core goals intended to enhance distributed innovation and open participation, uncontrolled by the incumbents, and to begin to reintroduce the idea that competition from new entrants is important and requires some version of open access and interconnection regulation is a breath of fresh air."

The New York Times, But experts warn that the rural broadband effort could just as easily become a $9 billion cyberbridge to nowhere, representing the worst kind of mistakes that lawmakers could make in rushing to approve one of the largest spending bills in history without considering unintended results."