Category: Legal, Laws, and Regs

Categories
Copyright

Kindlegate

Being a Kindle owner, I’ve been following, and involved in, many discussions related to the recent DMCA take down notice that Amazon served on the eBook friendly site MobileRead. I’m too tuckered from arguing in other forums to say much now. At this time, all I’m going to do is list out pertinent articles and forum threads, and write my first impressions of the events.

The take down notice was first detailed in MobileThread

As some of you may already know, this week we received a DMCA take-down notice from Amazon requesting the removal of the tool kindlepid.py and instructions associated with it. Although we never hosted this tool (contrary to their claim), nor believe that this tool is used to remove technological measures (contrary to their claim), we decided, due to the vagueness of the DMCA law and our intention to remain in good relation with Amazon, to voluntarily follow their request and remove links and detailed instructions related to it.

A quick backgrounder: kindlepid.py is a small Python script allowing you to derive a Mobipocket-compatible personal identifier (PID) for your Kindle reader. This PID in itself has nothing at all to do with reading any copyrighted content. It is only used to make legitimate e-book purchases at stores other than Amazon’s.

We believe in the freedom of speech and we encourage you to continue expressing your views and thoughts on tools like kindlepid.py. We only ask you not to provide any how-to instructions, source codes and/or links for obtaining kindlepid.py.

Several people and organizations have weighed in on the issue, including Slashdot, BoingBoing, CNet and so on. You can find links to the articles in TechMeme, but I also linked stories as I found them in a thread I started in the Kindle owner’s forum at Amazon. Current entries to that thread: 127 and counting. Some interesting, and differing, opinions are shared.

What puzzled a lot of people is, why now? The application that Amazon is unhappy about, kindlepid.py, has been out and in use, and discussion item in Amazon forums since December of 2007. So, why now, and why serve a DMCA on MobileRead, rather than Google Apps, or other sites were the software is actually hosted?

A little hunting around found the most likely cause of this current foo-flah: another thread at MobileRead. The timing of the thread and the DMCA seem too close not to be related.

I’m not rigidly against DRM, though I would be happy to have my own books DRM free. (Painting the Web is available without DRM at O’Reilly.) As we all know, DRM typically harms legitimate owners, and does little to prevent piracy. Regardless, I can understand the use of DRM…but it should be based on a consistent standard the industry shares, so that if I buy a book at one eBook store, it will work with my Kindle; and an Amazon eBook will work on devices other than Kindle. Anything else is death to the industry. The industry is just too new, and too small, to be fragmented by such walls.

The Kindle is based on the MobiPocket Mobi digital format. Because of this shared format, Mobi books will work on a Kindle. However, Mobi books also have a PID-based DRM system that requires you provide your device’s PID if you want to buy a book. What kindlepid.py does is provide Kindle owners that PID. It does not bypass the DRM; it doesn’t circumvent copyright—it just gives us the ability to buy books in other stores.

More importantly, libraries are now incorporating digital book loans, but they’re based on DRM-enabled PDF files, or DRM-based Mobi books. If we want to “check” a book out at our libraries for use on our Kindle, we have to use both kindlepid, to get the PID, and kindlefix, to set a flag so we can read the book on our Kindles.

The book loan still expires at the end of the loan program. We can still only read the book on the given device. We’ve not broken either law or copyright or DRM. And since Amazon refuses to work with libraries, about the only way Kindle owners will have access to library loans is the use of this software.

The DMCA move by Amazon was especially disappointing to me, personally, because one reason I felt comfortable with buying a Kindle is that I trusted Amazon, I trusted Jeff Bezos, not to keep the Kindle jailed forever. I assumed that over time, the company would open both the Kindle, and the book store. I believed that what Amazon did for MP3s, it would eventually do with eBooks. Well, I can see with the DMCA, my trust was misplaced. I guess one can never get too old to still be naive.

I still like my Kindle, but I’m no longer comfortable buying books for it from Amazon. Luckily there are free ones that Amazon “allows” me to load on to the Kindle. As for new books, I’ve returned to paper books, via library loans. Too bad, too, because my library just doesn’t carry all the books I want.

I’ve also taken copious notes from the books I do have on the Kindle, for that day when the device breaks. I strongly doubt I’ll ever buy another eBook reader, much less another Kindle. Not until the industry gets its act together.

Like I said, more some other time.

Categories
Copyright Photography

Appropriate the visual

Jonathon Delacour has an interesting writing on appropriation art, the controversy about the Obama HOPE poster, and Walker Evans. I must admit to being mostly ignorant about appropriation art, where the artist takes another work and either creates a variation of the work, as Shepard Fairey did with the HOPE poster; or actually makes a direct copy of a work, as Sherrie Levine did by taking photos of Walker Evans public domain photos, claiming the works as her own, and then applying her own copyright.

Leaving aside all other issues, the legality of such appropriation is based on whether the new work is derivative or transformative. For instance, Picasso is consider an early appropriation artist, because he would appropriate things he found in the everyday world for his work. However, the materials Picasso appropriated were not works of art themselves, but everyday things that he would then transform into original creations of art. I had an uncle, heavily inspired by Picasso, who was also an appropriation artist, as he would take clothes hangers, paper, and paint, and create statues—one of which I, in the midst of my plebeian youth, threw away, thinking it junk.

I suppose that Fairey’s work could be considering transformative, too, as he took a photograph and transformed it into a painted, or more likely photoshopped, effort. Tom Gralish is the person who helped uncover the original photo behind the transformed work, and as the images he display demonstrate, Fairey used the same technique more than once with more than one photographer’s effort.

Fairey's appropriated art

The AP, who hired the photographer, Mannie Garcia, to take the photo used in the HOPE poster, disagrees that the “appropriation” of the photo is fair use, and have contacted Fairey to make arrangements (though there is some debate that the AP does own the photo copyright). It would seem that Fairey, himself, didn’t even know whose image it was he used until he was contacted. I found his ignorance of the original photographer to not only be offensive, but sublimely arrogant. If one is going to appropriate another artist’s work, shouldn’t one at least take a moment to discover the name of the artist? Evidently, to Fairey, not. To Garcia, his photograph is art; to Fairey, it’s raw material, the equivalent of a coat hanger.

I am not an expert in copyright law to know whether Fairey’s work is a violation or not, nor am I necessarily in sympathy with the AP, though I will watch the ongoing story with interest. However, I don’t have to be a lawyer to know that Sherrie Levine’s appropriation of Walker Evans work is legal, but morally reprehensible.

In Levine’s case, she took photographs of Walker Evans photos that were in the public domain, printed them out for a show titled After Walker Evans, and then copyrighted her photographs of the photographs. Since the Evans photos were in the public domain, she could do what she wanted with the images.

I gather, according to Jonathon, she had some postmodern feminist story to accompany the work that sounded all grand and really brainy, I’m sure, but strip away all the mental cotton candy and what you’re left with is a photographer exactly duplicating another photographer’s work, and then attaching her name to it.

Applaud, the postmodern Athena is avenged on the paternalist Zeus. As others have written, Levine’s disrespect for paternal authority suggests that her activity is less one of appropriation: she expropriates the appropriators. How could I, as a feminist, not applaud such an act?

What if we were not talking about visual art, though? What if I were to take a work by another representative of paternal authority, Mark Twain’s The Adventures of Huckleberry Finn, type it exactly as written into my computer, sign my name as writer, convert the document into Amazon’s Kindle format, copyright the effort, and sell it at Amazon? According to both Levine’s viewpoint and this modern variation of appropriation artists, not only would such be acceptable, I should be praised

In 1979 in Sherrie Levine rephotographed Walker Evans’ photographs from the exhibition catalog “First and Last.” Her post-modern assertion that one could rephotograph an image and create something new in the process, critiques the modernist notion of originality (though it creates an alternate postmodern originality in the process.) In dialogue with the theorist Walter Benjamin, who explored the relationship of reproduction to artistic authenticity, the reproduction becomes the authentic experience.

Yet, it is likely that those who would praise Levin and her work, would condemn me and mine. She is artist, I am vile plagiarist. A plagiarist easily caught, because the original story is so well known.

If the work of Twain is too well known to be vanquished by a single act of unattributed duplication, then what of our replication of syndication feeds, or weblog posts? The casual page such as those I quote from in this story? Would our writing not be like Mannie Garcia’s photo, in the public sphere but not well known enough to have self-defense against such deception?

I don’t know of any writer who would willingly allow their writing to be duplicated and attributed to another, without even a semblance of a nod to the originator, but we don’t have the same problem with visual works, such as photographs. As Jonathon states, We are in a hall of mirrors, but mirrors that shatter with text. If one can’t take the concept from one artistic medium to the next, then the concept is suspect, the art tainted.

Categories
Legal, Laws, and Regs

Bad Laws

Tomorrow Judge George Wu is presiding over a session regarding the requests for dismissal of the misdemeanor convictions against Lori Drew and the mistrial on one count. I’ve been working for some time now on a longer writing about Lori Drew and Megan Meier that I hope to publish as soon as we see where this particular play ends. In the meantime my state passed a modification to our state’s harassment laws reflecting the events surround Lori Drew and Megan Meier. The newly modified law has been invoked seven times since its passage in August.

I thought I would share my state’s harassment law with you. As you read it, think back on the interactions you’ve had with others in the past. Ask yourself: how many people do you know could be criminally charged based on this law? Include yourself, if appropriate.

Harassment.

565.090. 1. A person commits the crime of harassment if he or she:

(1) Knowingly communicates a threat to commit any felony to another person and in so doing frightens, intimidates, or causes emotional distress to such other person; or

(2) When communicating with another person, knowingly uses coarse language offensive to one of average sensibility and thereby puts such person in reasonable apprehension of offensive physical contact or harm; or

(3) Knowingly frightens, intimidates, or causes emotional distress to another person by anonymously making a telephone call or any electronic communication; or

(4) Knowingly communicates with another person who is, or who purports to be, seventeen years of age or younger and in so doing and without good cause recklessly frightens, intimidates, or causes emotional distress to such other person; or

(5) Knowingly makes repeated unwanted communication to another person; or

(6) Without good cause engages in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person’s response to the act is one of a person of average sensibilities considering the age of such person.

2. Harassment is a class A misdemeanor unless:

(1) Committed by a person twenty-one years of age or older against a person seventeen years of age or younger; or

(2) The person has previously pleaded guilty to or been found guilty of a violation of this section, or of any offense committed in violation of any county or municipal ordinance in any state, any state law, any federal law, or any military law which, if committed in this state, would be chargeable or indictable as a violation of any offense listed in this subsection.

In such cases, harassment shall be a class D felony.

3. This section shall not apply to activities of federal, state, county, or municipal law enforcement officers conducting investigations of violation of federal, state, county, or municipal law.

Since I live in Missouri and am subject to this law, I have a change of policy at my place.

If you are 17 years of age or younger, you are not welcome to write a comment to my posts. I cannot run the risk that another person may respond to your comment in such a way that you won’t take offense. I can’t run the risk that I won’t be that person. Therefore to ensure that no one here “accidentally” commits a criminal activity, children under 17 are not permitted to comment. Personally, I’d rather you not read the site, either, as I’m sure to write something some day that the Missouri legislature will determine to be “harmful” to children.

If you want to comment anonymously, feel free. Note, though, that you must then be the nicest, sweetest, most agreeable person in the world. Plenty of joy-joy feelings, and as harmless as a newborn kitten. This isn’t for my sake— this is to protect you. After all, if you cause emotional distress to another person while commenting in my space anonymously, you’re in violation of my state’s harassment laws. I’m sure that California isn’t the only state that has a US Attorney or other prosecutor who wants to make a name for him or herself, and is willing to use the flimsiest excuse to do so, including going after anonymous commenters in a Missouri-based weblog. Especially when said US Attorney is under fire for other actions, and knows he or she is unlikely to keep their job once a new administration is in place.

Watch the birdie, not the hand!

I’ve also resolved to stop being critical of people like Mike Arrington, Robert Scoble, Dave Winer, et al. After all, my writing in my web space is a communication, and we know that it’s unwanted—I do believe each has indicated at one time or another that they find me distasteful. They may each have told me to go away, at some point. Therefore, any future writing about them, especially critical writing, makes me into a criminal.

Heck, maybe we should just all shut up, except to say how good everything is, and how peachy keen everyone is, and aren’t we all just so damn happy? Then no one will take any offense at anything we say.

Well, no one will take offense but those people who still think. And who writes laws to protect those who still think?

No one.

update The conference on the 29th was a status conference, which is usually held pre-trial. I’m assuming this may have to do with the mistrial. No idea when Judge Wu will rule on the dismissal requests, or if he’ll rule on the dismissal requests. He seems to prefer keeping this case in a state of limbo.

update

The prosecutor in the Lori Drew case has dropped the conspiracy charge. Judge Wu has set a court date for January 8th, regarding the requests for dismissal from the defense.

Categories
Legal, Laws, and Regs

Drew’s lawyer files response in court

Recovered from the Wayback Machine.

The lawyer for Lori Drew has filed a response in California, to the charges that Drew violated MySpace’s rules and terms of service. If you don’t remember who Lori Drew is, she was the woman accused of “hounding” the 13 year old Megan Meier to death. I used the word “hounded” facetiously, as there’s much more to this story than a tale of a lost little girl done wrong by a Big Bad Woman. The event happened here in Missouri, and has been a very major story, as well as source of contention.

These charges are absurd, as well as being potentially devastating to any and all online web usage. From the filing, and quoted in the St. Louis Today report:

“If violating user agreements is a crime, millions of Americans are probably committing crimes on a daily basis and don’t know it,” the filings says.

Steward also says that laws have to make clear what is prohibited, and the one being used against Drew doesn’t. The terms “access” and “unauthorized” aren’t defined in the law. The law fails to warn the public of what is prohibited and establish standards that would prevent it from being enforced in an arbitrary and capricious manner, he wrote.

“A reasonable person could never know whether their conduct violates the statute,” the filings say, and the law is “ripe for discriminatory enforcement.”

Steward also writes that it is unconstitutional to delegate governmental powers to private parties. Prosecutors’ interpretation of the law would allow Web site owners unlimited authority to decide what was unauthorized.

“Almost any computer owner can set up whatever arbitrary and unique rules they want, and a violation of those rules can lead to a. . . prosecution,” Steward wrote

In other words, you could not only lose access to a web service by not following the “rules” of the service, you could thrown in prison for not following the rules. How absolutely insane is that?

More from Wall Street Journal and Washington Post. In addition, copies of the filings: Failure to State Offence, delegation of authority, and vagueness.

Categories
Copyright Writing

Painting the Web now DRM free and on the Kindle

I had no idea that my book Painting the Web was going to be one of O’Reilly’s first batch of DRM-free eBooks. I was stunned to see it as one of the first 12 Kindle books O’Reilly has released.

Painting the Web does make a nice ebook. I think the graphics are better in a digital format rather than in print. I’m not quite sure, though, how the graphics will translate to a Kindle. I’ll probably buy a copy for my own Kindle, just to see what the book looks like on the device.

There was a group of us authors who had a discussion in the Kindle forums several months back, about books with figures. My suggestion at the time was that companies who publish books with lots of figures to the Kindle, should also provide a PDF or some other online copy of the book, or at least the figures, so that people have both—the Kindle for the text, and the other format to better see the figures. It sounds like O’Reilly is using this approach with the company’s ebook bundles: pay one price, and get the book in PDF, EPUB, and Kindle-compatible Mobipocket. So now, you can now read Painting the Web in Kindle, Sony’s ebook reader, on your computer, and yes, even on paper.

In addition to being able to read these books in about every environment known to humanity, the digital formats make it simple to add corrections to an existing book and have those corrections reflected immediately in the digital copy. This is the way of the future. I’m not saying paper books are going away, but I know I certainly don’t miss paper with my Kindle.

The DRM-free nature of the books is a gamble. Other publishers have started to put out DRM free books, too, such as some of the Sci-Fi houses like Tor and Baen. My being able to buy food and pay rent next year depends on how well this gamble pays off.

I’m pleased to see Painting the Web on both lists. This is a book I’m very fond of, and I like that it’s taking part in O’Reilly’s new venture. I was surprised, though, as I hadn’t been in any discussion with O’Reilly about the book being included.