28 February 2009

Half a Dozen to Go

With no further ado, here's the Saturday sausage platter! And, like every platter of link sausages, you really don't want to know how these were made... or how I came across the ingredients.

  • Congratulations to the 2009 Nebula Nominees. Normally, I'd link to SFWA's own website... but the formatting and arrangement is a lot cleaner at SF Awards Watch.
  • An octopus was practicing to become a many-tentacled overlord. Stupid humans! (HT: Pharyngula)
  • From the Department of Ideology, here's an item from The Times describing the Iranian News Service's allegation that Harry Potter and Hollywood are a Zionist plot. I'm surprised that there hasn't been an equivalent IRINN piece that blames the entire financial system collapse on a conspiracy between Britney Spears and Jewish bankers... yet. Meanwhile, we should acknowledge science's debt to Islam, at a time when the shoes of ideology were on the other foot. Actually, it's arguable that Christianity had swallowed the shoe, excreted it, and hung it on its forehead during the thousand-year interregnum (roughly 576 to 1582), but that's for another time.
  • Speaking of Hollywood, Salman Rushdie muses on whether a film can ever be a good adaptation of a book. This is, perhaps, proof that the critical acumen of writers is somewhat limited... because it is akin to asking whether a photograph can ever do a sculpture justice, forgetting that sometimes "justice" might involve smashing the damned thing. In this particular instance, tearing up the F. Scott Fitzgerald story while still in manuscript stage would have been an improvement; neither the story nor the film is really very good, except — perhaps — for the acting in the film.
  • Here's a more-measured evaluation of the Facebook TOS controversy. Ultimately, though, I'm not sure that anything other than knowing that this isn't the first time Facebook has claimed perpetual ownership of information is really necessary. Neither will it be the last.
  • Over at Scalzi's blog Whatever, he tries to explain why he doesn't care about Kindle's text-to-speech feature. Buried in the middle of the comments at number ten, though, one finds Cory Doctorow making the same mistake I've recently accused other techies of making: Treating one's policy preferences as if they are, in fact, what the law already is. Here's a sample, with interleaved comments (paragraphing is Doctorow's, but I've silently corrected some of the typography):

    ...Amazon doesn’t commit copyright infringement by making a tool that can commit copyright infringement. If there’s an infringement taking place on the Kindle, then the infringer is the user.

    These two sentences are a complete non sequitur, because they're missing a critical word: direct. As Grokster makes clear, under some circumstances a toolmaker does commit indirect (or what the Court ineptly called "secondary") infringement if it knows that users will use the tool to commit clear direct infringements and bases its business model on that knowledge.

    ...Amazon has no obligation to prevent its users from infringing, because tool makers are not required to take measures to prevent infringement from taking place using their devices. Kodak, Xerox, Microsoft and the Mozilla Foundation are all free to deliver products that can (and DO!) infringe copyright without having to worry about designing their products to minimize infringement (this principle of law originates with the 1984 Supreme Court ruling in the Betamax [Sony] case).

    This is a gross overstatement of Sony, primarily because it inverts the Court's reasoning. Sony did not concern attempts to "minimize infringement;" it concerned whether there was a substantial noninfringing use to balance against any infringing use. That sounds like a subtle distinction, but it's not; Mr Doctorow's next paragraph makes clear why it matters...

    Finally, there is no way that Amazon could build a non-infringing TTS feature, because such a feature would have to be able to determine, a priori, whether a user was presently located in a jurisdiction in which a work was or was not in copyright — and more importantly, it would have to be able to adjudicate fair use claims (I’m sure that even if the [Authors' Guild] claims reading the whole book is infringing that they would agree that a short fragment does not necessarily infringe).

    Well, actually, this is all completely wrong, both technologically and legally. From the technological standpoint, Amazon could limit reading to passages of less than, say, 2:50 (the purported "sweet spot" for a pop song on 1960s/1970s radio), or build in a cutoff that will end a reading at the first terminal punctuation after that point. We'll slide over the jurisdiction issue for the moment, because it's a misstatement of the jurisdictional test for reasons that only a civil procedure nerd like me will even care about; it's simultaneously vastly more complex in analysis and vastly more simple in result than Mr Doctorow implies. That said, it's the last sentence that reveals everything about Mr Doctorow's approach. Fair use is a defense, not a right, under US copyright law (and even more so, although not codified as such or called "fair use", under the Berne Convention generally and under UK, German, Swiss, Austrian, and Japanese domestic copyright law — and probably others, but I've just not gone into satisfactory-to-me original-language depth elsewhere); that is, it cannot be "adjudicated" until the infringed copyright holder defines the scope of infringement that is at issue.

    This has been a difficult-to-digest sausage for a variety of reasons, the most important of which is that ultimately I think the Kindle text-to-speech feature is not, itself, the source of any infringement... for the same reasons as the Court actually stated a quarter of a century ago in Sony. I strongly differ with Mr Doctorow's reasoning and statement of what "the law is," though, and perhaps this has been a useful exercise in showing — again — the distinction between, on one tentacle, the law's (often insanely bizarre) requirements and, on other tentacles, technological reality, policy preferences, and individual behavior. My ultimate point is that sometimes the law is not an ass — this time, instead, it's the Authors' Guild. Those with a sense of irony might note the Authors' Guild's inconsistent position in the proposed settlement of the Google Book Search lawsuit (and, as soon as I clear a conflict, I'll finish that rant), not to mention its inept initial position therein.