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Three Screens and a Cloud: Netflix’s Qwikster, Facebook & Amazon 2011/09/23

Posted by nydawg in Copyright, Curating, Digital Archives, Digital Archiving, Information Literacy, Information Technology (IT), Intellectual Property, Media.
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One of the most pressing and intimidating challenges digital archivists face today, is the fact that there is so much content offered in so many quick-changing distribution formats and accessible on short-lived storage media.  I found that the easiest way to describe this is “Three screens and a cloud” or as former Microsoft head Ray Ozzie put it: “how we consume IT is really shifting from a machine-centric viewpoint to what we refer to as three screens and a cloud:  the phone, the PC, and the TV ultimately, and how we deliver value to them.” [i would change that to IP, but hey, I’m not CEO of Microsoft.]

So as archivists who are concerned with the distribution and accessibility of our digital assets, it is important to ask early, “What format or what media will be required and who is the targeted end user on what appliance?”  In other words, you probably don’t want to send a hi-def Blu-Ray digital video stream meant for a big screen tv to a tiny smartphone!  Or you probably don’t want to stream a FlashVideo version to an iPad user.

But, on the other hand, archivists may not need to archive or preserve (for long-term functions) every possible variation of each format version (for smartphone or netbook (iPad) or television).   By articulating what is really needed, archivists can streamline processes and avoid making mountains where molehills are sufficient.  Archivists who can see the forest for the trees will be able to describe fewer assets more completely so that specific needles can be found within the haystacks.

This leads me to the real groundshifting news stories that happened this week.  The first one is that NetFlix is splitting its DVDs-by-mail service from its streaming.  According to Huffington Post: “In a post on The Netflix Blog that went up Sunday night, the company’s CEO, Reed Hastings, announced that Netflix would split its DVD-by-mail service and its streaming-video service into two companies. The new DVD-only company, called “Qwikster,” will be completely separate from the streaming business. Hastings also expressed contrition for the way the company rolled out its recent price hike, which alienated many customers. . . . “It is clear from the feedback over the past two months that many members felt we lacked respect and humility in the way we announced the separation of DVD and streaming, and the price changes. That was certainly not our intent, and I offer my sincere apology.”

Well, obviously, many people are up in arms and think this is the biggest boneheaded marketing move since Coke introduced New Coke! The NY Times’s David Pogue does a pretty good job of getting his gander up as he parses the Netflix apology without fully acknowledging the economics of the “streaming” game.  I won’t get too much into the legal issues (which I don’t fully understand), but I do remember when I was working in “streaming media” as Senior Encoder at SonicNet (and Streamland), licensing costs and marketing dollars generally shift from one medium (vhs, CD or radio) to another (DVD, streaming media or satellite radio).   It seems inevitable that NetFlix realizes, as Blockbuster did years ago, that physical media will soon be obsolete, . . .  so they’re trying to split themselves in order to have different licensing deals with different stakeholders and end users. . . . . and Blockbuster, long-ago doomed, seeks to get in on the action too!

But ultimately, “An issue that both Netflix and Dish face, even when they don’t want to admit it, is the inconsistency of broadband connectivity across the United States.”

Another huge news story from this week was at f8 where Facebook founder and CEO Mark Zuckerberg announced major Facebook renovations. ““Millions of people curate stories of their lives on Facebook every day and have no way to share them once they fall off your profile page…we have been working on ‘timeline’ all year…it’s the story of your life and completely new way to express yourself.  “It has three pieces: all your stories, your apps and a new way to express who you are.”  Zuckerberg said he wanted people to be able to share “their entire lives” on Facebook and have “total control” over how their content appeared online.”

Zuckerberg “also announced a series of partnerships with music, media and games companies –including Spotify, Netflix, Zynga [the maker of Farmville] and The Washington Post.”  So this brings us back to the idea of Netflix which  “announced it is integrating its video streaming service with Facebook — allowing users to watch videos on either site and see what people on their friends lists are viewing.  It will be available in 44 countries except in Netflix’s biggest market — the United States, because of the 1998 Video Privacy Protection Act that prohibits the disclosure of video sales or rental records, the company explained.”

So what does this all mean for “Three Screens and a Cloud?”  Well, it’s important to remember that “Netflix is the biggest driver of U.S. Internet traffic, according to one study. As Internet service providers begin capping or tiering their data plans, that could cause consumers to watch fewer streaming videos on Netflix, analysts say.”  So as phone companies begin capping data plans for distribution (streaming), then another part of the archival equation is the storage medium. . . . and, as many people know, the battle is in the Clouds!


Authors’ Guild Sues HathiTrust for Using Unauthorized Scans 2011/09/20

Posted by nydawg in Copyright, Digital Preservation, Intellectual Property, Media.
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A few months ago, Judge Denny Chin put the kibosh on GoogleBooks’ attempt to digitize millions of library books and provide (mostly limited) access to the OCR.  Well, at that time, the good news was that ” HathiTrust, an organization set up to help them archive and distribute digital works” was still doing important work, but now HathiTrust is named as a defendant.  “The suit seeks to block two separate efforts. In the first, the universities have created a pooled digital archive of the contents of their libraries, maintained by the Hathitrust. No one contests that these works remain in copyright, or that the universities have rights to the nondigital forms of these works. What the authors object to is the fact that the digital works are derived from an unauthorized scan, and will be stored in a single archive that is no longer under the control of the university from which the scan was derived. The suit suggests that the security of this archive is also suspect, and may allow the mass release of copyrighted work.

“A separate issue in the suit is an orphaned works project started by the Hathitrust that focuses on some of the works within this archive. The group is attempting to identify out-of-copyright books, and those where the ownership of copyright cannot be established. If attempts to locate and contact any copyright holders fail, and the work is no longer commercially available, the Hathitrust will start providing digital copies to students without restrictions. This has not gone over well. The executive director of the Australian Society of Authors, Angelo Loukakis, stated, “This group of American universities has no authority to decide whether, when or how authors forfeit their copyright protection. These aren’t orphaned books, they’re abducted books.”  Read the Ars Technica article.

And if you’re still confused about the legal issues related to GoogleBooks’ recent problems with copyright infringement with an eye towards orphans, out-of-copyright and copyrighted materials, here’s an excellent multimedia presentation at Harvard by Lawrence Lessig in which he makes the argument  that tigers, as cubs, are extremely cute or to read why he thinks it is a “path to insanity,” check out TechCrunch or his longer “For the Love of Culture” essay in The New Republic.

DMCA, DRM and The unFair Use Act 2011/09/09

Posted by nydawg in Archives, Copyright, Digital Preservation, Information Literacy, Intellectual Property, Media, Privacy & Security.
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A few weeks ago, I reserved a copy of a Clay Shirky e-Book to take with me to Chicago.  When the book became available from NYPL, I was excited and hoped it would be a DRM (Digital Rights Management)-free PDF copy so I could download it (click the emailed link) to my netbook and transfer it to my eReader Tablet.  (It was my first time, so I was clueless.)  Oh well.  Obviously you can’t do that. . . .  or maybe you can, on a Sony eReader and the York Library.

Yesterday an old friend on facebook asked about borrowing eComic Books with the intent of ultimately preserving on some portable medium.  So I was intrigued enough to do a little research on DRM and found this informative piece from the ASIS&T Bulletin website: “Digital rights management (DRM) is commonly defined as the set of technological protection measures (TPM) by which rights holders prevent the use of digital content they license in ways that could compromise the commercial value of their products.  Restrictions on such uses as downloading, printing, saving and emailing content are encoded directly in the products or the hardware needed to use them and are therefore in immediate effect.”

The whole article is worth reading, but this one part caught my eye: “The New York Public Library (NYPL), for instance, has been considering bringing its digitized collection of dance and performance videos closer to the public outside the NYPL system as long as it is possible to restrict access to this online content to library locations only. These examples show that DRM may actually provide opportunities to expand access to online materials in ways previously not possible.”  The essay continues by examining the DMCA and its relation to DRM, pointing out that “Since the DMCA was enacted in 1998, the Library of Congress has enforced exceptions three times – in 2000, 2003 and 2006 – and was scheduled to do so again in 2009. Of the six exceptions passed in 2006, one specifically allows film and media studies professors to circumvent TPM to make film clip compilations for coursework using DVD copies held by their institution’s film-studies library. A movement has been underway to expand this exception to include K-12 educators, all subject areas and all legally obtained copies.”

And to give you a sense of what is at stake, the author writes “In February 2007, the Fair Use Act was introduced in Congress, but never passed. It would have codified into law all six exceptions from 2006, which are currently rule-made and remain subject to periodic reviews. The Fair Use Act would have permitted the circumvention of TPM for, among other cases, (1) access to public domain works, (2) access to works of public interest for criticism, scholarship, reporting or research, (3) compilations of educational film clips and (4) preservation in libraries. The latter is of particular importance as the various media with historical content, including DVDs, begin to deteriorate. Smith argued that what frightens publishers about the Fair Use Act is that, if implemented, it would render ineffectual the anti-circumvention rules. Fair use would constitute an exception so broad that decisions regarding the right to circumvent would often be made after the actual circumvention. If a content owner objected, the user could take the matter to court, and only then would a judge decide whether fair use can justify that particular circumvention. The Fair Use Act would thus defeat the anti-circumvention rule’s self-help purpose.”

So in other words, the encryption that libraries are using is controlling access to their eBooks, and the anti-copy encryption that companies are using on their deteriorating DVDs are conspiring with the law to keep libraries from providing open access in the future to our resources.  I say instead of “Fair Use Act”, we need a “Fair Copy Act” so libraries will be free to begin their media refreshment, digital migration and whatever they need to do to make sure their media collections do not become time capsules, moments of time captured on obsolete media formats.


Photo Curating Google Street View (GSV) for Kicks & Laughs 2011/08/20

Posted by nydawg in Copyright, Curating, Intellectual Property, Media.
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An interesting article, “Navigating the Puzzle of Google Street View ‘Authorship‘”
from Wired looks at the idea of copyright, authorship, photo licensing exhibition, distribution and curation, selection and appraisal (and cropping) by two artists using Google Street View.

from Wired

“I decided to explore how a casual observer who hasn’t spent years
thinking about authorship, photography and the nature of art and
artist may dismiss the images as obviously identical, but an art
history buff could fall down the conceptual rabbit hole lurking in
that assumption. If you’re as intrigued as I was, take the red pill
with me and read on. (Warning: No intellectual lifeguard on duty.)
Rafman’s Nine Eyes and Wolf’s A Series of Unfortunate Events are the
two most well-known and most circulated projects of the Google Street
View (GSV) ilk. Rafman continues to add images to Nine Eyes, while
Wolf has since ventured into newer sets with a geographical focus on
Paris and New York.

. . . “For traditionalists, the problem with GSV projects is one of
engagement. Documentary photographer Alan Chin, speaking of Mishka
Henner’s No Man’s Land expresses a view that can be applied to GSV
projects in general.  “Google Street View is a navigational tool, an
educational resource, and sure, it can reveal a lot about a place and
a scene at a given moment in time,” says Chin. “But if you, the
artist, are really so interested, then go there and take some pictures
yourself. Postmodern, post-structuralist, post-whatever denizens of
the art world and academia love this shit. But it has little to do
with actual reporting and actual documentary work in the field.”


You [Copy]right [Up] My Life (in Perpetuity) 2011/08/16

Posted by nydawg in Copyright, Intellectual Property.
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[Disclaimer: I should probably hold off on posting this until I speak with my good friend IP Lawyer Larry, but it’s just too delicious to wait to hear back, so here goes. ]  There was a fascinating article in yesterday’s NYTimes about “a little-noted provision in United States copyright law” which raises a whole host of new questions related to copyright law, its purpose, function, and future.   “When copyright law was revised in the mid-1970s, musicians, like creators of other works of art, were granted “termination rights,” which allow them to regain control of their work after 35 years, so long as they apply at least two years in advance. Recordings from 1978 are the first to fall under the purview of the law, but in a matter of months, hits from 1979, like “The Long Run” by the Eagles and “Bad Girls” by Donna Summer, will be in the same situation — and then, as the calendar advances, every other master recording once it reaches the 35-year mark.   The provision also permits songwriters to reclaim ownership of qualifying songs. Bob Dylan has already filed to regain some of his compositions, as have other rock, pop and country performers like Tom Petty, Bryan Adams, Loretta Lynn, Kris Kristofferson, Tom Waits and Charlie Daniels, according to records on file at the United States Copyright Office. ”

From an archivist’s perspective, I think this gets to the idea of the poor & inadequate description of songs as “sound recordings.”  In 1999 and 2000, singer/songwriters Don Henley and Sheryl Crow “convinced Congress to undo language classifying sound recordings as “works for hire,” which had just been inserted stealthily into another, unrelated bill” because, as Henley points out in a recent interview, ““Work for hire” was never intended to apply to sound recordings. That came about because of movies and books. Sound recordings somehow got added to the list, then taken off again.”

Meanwhile, the ostriches with their heads in the sand at the RIAA (and at the labels) are beginning to fight back: ““We believe the termination right doesn’t apply to most sound recordings,” said Steven Marks, general counsel for the Recording Industry Association of America, a lobbying group in Washington that represents the interests of record labels. As the record companies see it, the master recordings belong to them in perpetuity, rather than to the artists who wrote and recorded the songs, because, the labels argue, the records are “works for hire,” compilations created not by independent performers but by musicians who are, in essence, their employees,” and some even claim it “would create chaos “because rights for most recordings would be divided among various band members, producers and others who contributed to the recording, and it might require years of litigation to sort out who has what rights.””

So what’s the answer?  According to Henley, “One option is to go in the studio and re-record the songs and make new masters. If you completely re-record the songs, my understanding is that the label doesn’t own those masters any more, you do, that they don’t have anything to say about it if you record songs again from the ground up and everything is new. ”  Well, if that’s the case, then U.S. copyright law for sound recordings is setting itself up to do the exact opposite of  “protecting the rights of copy”, by encouraging artists to re-do and replace the original with a revision.

Meanwhile, another part of this fascinating story, in my opinion, relates to what exactly is copyrighted anyway?  The song?  The lyrics? The sound?  My gut suggests it would be the “music”, so that songwriters (e.g. Paul McCartney or Paul Simon, etc.) would own the rights to their poetry, and then could collect and release the words in a different medium (print). . . . But I could be wrong, and I will have to ask my lawyer friend Larry for his opinion.  the rights of corporations.

The other fascinating part of the story is the whether or not corporations can copyright works of art (or works of hire)?  I remember back in the 1980s a few stories about Heavy Metal suicides including this one about Ozzy Osbourne and this one about Judas Priest fans, and it makes me wonder, if corporations own those rights, then why were musicians (for hire) dragged into court while the corporate labels were excluded?

Here’s a chart of some of the popular recordings that are at risk of termination.  You’d think that with cash-cow names like Michael Jackson, Madonna, Bruce Springsteen, Billy Joel, The Eagles, etc. there would be lots of interest in this story.  Well, we’ll see what happens in a couple years.  Read a bit more o the history of other derivative art works on questioncopyright.org [especially in the comments section].  And to bring it full circle, here’s a part of Frank Zappa’s 1985 testimony against the PMRC,

“Ladies, please be advised: The $8.98 purchase price does not entitle you to a kiss on the foot from the composer or performer in exchange for a spin on the family Victrola. Taken as a whole, the complete list of PMRC demands reads like an instruction manual for some sinister kind of “toilet training program” to house-break all composers and performers because of the lyrics of a few. Ladies, how dare you? The ladies’ shame must be shared by the bosses at the major labels who, through the RIAA, chose to bargain away the rights of composers, performers, and retailers in order to pass H.R. 2911, The Blank Tape Tax: A private tax levied by an industry on consumers for the benefit of a select group within that industry. “

G is for GoogleBooks and “D is for Digital” NY Law Review 2010/12/22

Posted by nydawg in Copyright, Digital Archives, Digital Preservation, Education, Intellectual Property.
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Some of you may not know that NYDAWG began at the New York Archivists Round Table (NYART) Google Books meeting at New York Law School in January 2010. Well, it’s true.
So check out this holiday release of the latest developments in GoogleBooks, Fair Use, patents, and DIY in New York Law School Law Review “D Is for Digital” themed journal.
The Intro is particularly good reading, written by James Grimmelmann who summarizes :

“Google will sell digitized books to individuals and institutions on a grand scale, sharing the revenue with authors and publishers. Millions of copyright owners, tens of millions of books, hundreds of millions of dollars: numerically, it’s a tremendous settlement.”

I think it shows an excellent understanding of how scalability works with small or large institutions.

Read all about it: http://www.nyls.edu/index.php?cID=2789


Apple iTunes & Amazon Own 80% of Paid Digital-Download Market 2010/12/22

Posted by nydawg in Archives, Copyright, Digital Archives, Intellectual Property.
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It's Hip 2B Square

“After several years of explosive growth, sales of individual song downloads have slowed. With just over 1 billion tracks sold so far this year, the industry wide tally is up 0.3% from the same point in 2009, according to trade magazine Billboard.

But digital album sales continue to grow robustly, even as CD sales plummet. Sales of the discs have declined 20% this year, while digital album downloads have grown 13%, to over 75 million. (Vinyl record sales are growing at a similar rate, but with just 2.4 million sold this year, the format remains marginal from a commercial perspective.)

Ars Technica: “Amazon was so good at pushing its “Daily Deal” promotions (deeply discounted albums of hot bands) that Apple apparently felt threatened by it—an anonymous music industry exec said earlier this year that Apple was stepping up pressure on artists to
avoid Amazon’s music promotions, lest they lose their valuable marketing support from iTunes.”

Of course people using Amazon Kindles are already well-aware of vendor lock-in through encryption, so this will probably become an issue for Amazon & Apple users in the near-term through the long-term.  (crickets . . . crickets   .    .     .   still waiting)