I Fondled Salvador Dalí's Earrings

 Content Warning: AI

My Uncle Henry was a Professor of Chemistry at NYU. He lived, for the most part, in his sister-in-law Barbara's 7-story townhouse on East 67th street in Manhattan. He acted as the caretaker of this mansion when Barbara went off living her socialite life in Paris or wherever. My family would stay in the townhouse whenever we came to New York to visit my favorite uncle.

This is how my parents ended up being at a fancy party attended by Salvador Dalí. It seems that Barbara had commissioned a portrait of herself, and the occasion of the party was the painting's unveiling. I was there too; I was a few months old. The great painter was amused to see a baby at this party and the baby was extremely amused at this strange looking adult. More accurately, I was captivated by his shiny earrings and reached out to play with them as though they were a mobile hanging in my crib. Or so I have been told. So many times.

Dalí and Eric as hallucinated by DALL-E

My dad was presented to Dalí as a brilliant young engineer, which he was. Dad was born in Gary, Indiana, but moved to Sweden with his family when he was 7 years old. (That's a whole 'nother story!) After graduation from the Royal Institute of Technology in Stockholm, he decided to take a job with Goodyear Aerospace in Akron, Ohio, because that way he didn't have to serve in the Swedish Army and give up his American citizenship. He worked on semiconductor devices before anyone had ever heard of semiconductors.

Maybe brilliant engineers were exotic creatures in that fancy New York City party circuit, because Salvador Dalí buttonholed my dad. He wanted my dad to invent something for him. The conversation went something like this (imagine me sitting in Dalí's lap, not paying attention to the conversation at all):

Dalí: "Tell me, young man, do you invent things?"

Dad: "As a matter of fact, I'm working on what they call a buffered amp..."

Dalí: "Never mind that, I have an idea I want you to work on..."

Dad: "Yes?"

Dalí: "I want you to invent a paint gun..."

Dad: "That doesn't sound too hard..."

Dalí: "... that will paint what I see in my mind."

Dad: "??"

Dalí: "I paint, but the paintings are never what I want."

Dad: "That's not how..."

Dalí: "I want to press a button and have the paint go in the right place."

Dad: "Well maybe someday..."

Dalí: "You start working on it, let me know how it goes"

Eric: "Waaaaaaaaa!"

Apparently, the paint gun was a bit of an obsession with Dalí. He created a technique called "bulletism" that involved using an antique gun (an "arquebus") to shoot vials of paint at a canvas. A couple of months after the fancy party, he appeared on the Ed Sullivan show firing a paint gun at a canvas! 

Sixty-four years later, we sort of know how to build Dalí's mind reading paint-gun. We have technologies that let us see the brain think (functional brain imaging combined with deep learning), and technologies that can make pictures from human thoughts (when expressed as LLM prompts). It's now easy to imagine a device that uses your brain to control an AI image generator (see the image above!). Such a device could take advantage of the brain's plasticity to give Dalís of the future the power to make images from activity that exists only in their brains.

People are arguing about whether AI can make art. There's even a copyright case in which the US copyright office is saying, effectively, that you can't copyright what you tell an AI to create.

It seems clear to me, at least, that AI, wielded as a tool, can make art, in the same way that a Stradivarius, wielded by a musician, can make art, or that a camera, wielded by a photographer, can make art, or that computer program, wielded by a poet, can make art. 

Salvador Dalí was just ahead of his time. 

Notes:

1. While OpenAI's "DALL-E" is supposed to be a combination of "Dalí" And "WALL-E", I've not been able to find any mention of Dalí's interest in brain-computer interfaces!
2. I couldn't find an image of the painting "Portrait of Bobo Rockefeller" on the web; a study for the painting is in the Dalí Museun in Spain. Dalí had a policy of not allowing his subjects to see their portrait before is was unveiled, and my understanding is that Barbara was never really fond of the painting. It had an prominent place in her living room though.
3. Researchers have studied the use of brain-scanning techniques to develop brain-computer interfaces for uses such as the development of speech prostheses that convert brain activity into intelligible speech. 
4. Openwater is combining infrared and acoustic imaging to see brain activity for neurological diagnosis. But they can see the potential for mind reading using the help of deep learning pattern recognition. Founder May Lou Jepsen says “I think the mind-reading scenarios are farther out, but the reason I'm talking about them early is because they do have profound ethical and legal implications.” 

Comments. I encourage comment on the Fediverse or on Bluesky. I've turned off commenting here.

Reminder: I'm earning my way into the NYC Marathon by raising money for Amref Health Africa. 

The Revenge of the Cataloguers

Over the past 15 years or so, libraries around the world have de-emphasized cataloguing. While budgetary concerns and technological efficiencies have been factors in the decline of cataloguing, the emergence of full text search and relevance ranking as practiced by Google and others has proved to be more popular for the vast majority of users. On the open internet, subject classifications have proved to be useless in an environment rife with keyword spam and other search engine optimization techniques. 

In the past year, the emergence of artificial intelligence (AI) with large language models with surprising abilities to summarize and classify texts has people speculating that AI will put most cataloguers out of work in the not-so-distant future.

I think that's not even wrong. But Roy Tennant will turn out to be almost right. MARC, the premier tool of cataloguers around the world, will live forever...  as a million weights in generative pre-trained transformer. Let me explain...

The success or failure of modern AI depends on the construction of large statistical models with billions or even trillions of variables. These models are built from training data. The old adage about computers: "garbage in garbage out" is truer than ever. The models are really good at imitating the training data; so good that they can surprise the models' architects! Thus the growing need for good training data, and the increasing value of rich data sources.

Filings in recent lawsuits confirm the value of this training data. Getty Images is suing Stability AI for the use of Getty Images' material in AI training sets. But it's not just for the use of the images, which are copyrighted, but also for the use of trademarks and the detailed descriptions than accompany the data. Read paragraph 57 of the complaint:

Getty Images’ websites include both the images and corresponding detailed titles and captions and other metadata. Upon information and belief, the pairings of detailed text and images has been critical to successfully training the Stable Diffusion model to deliver relevant output in response to text prompts. If, for example, Stability AI ingested an image of a beach that was labeled “forest” and used that image-text pairing to train the model, the model would learn inaccurate information and be far less effective at generating desirable outputs in response to text prompts by Stability AI’s customers. Furthermore, in training the Stable Diffusion model, Stability AI has benefitted from Getty Images’ image-text pairs that are not only accurate, but detailed. For example, if Stability AI ingested a picture of Lake Oroville in California during a severe drought with a corresponding caption limited to just the word “lake,” it would learn that the image is of a lake, but not which lake or that the photograph was taken during a severe drought. If a Stable Diffusion user then entered a prompt for “California’s Lake Oroville during a severe drought” the output image might still be one of a lake, but it would be much less likely to be an image of Lake Oroville during a severe drought because the synthesis engine would not have the same level of control that allows it to deliver detailed and specific images in response to text prompts.

If you're reading this blog, you're probably thinking to yourself "THAT'S METADATA!"

Let's not forget the trademark part of the complaint:

In many cases, and as discussed further below, the output delivered by Stability AI includes a modified version of a Getty Images watermark, underscoring the clear link between the copyrighted images that Stability AI copied without permission and the output its model delivers. In the following example, the image on the left is another original, watermarked image copied by Stability AI and used to train its model and the watermarked image on the right is output delivered using the model:

If you're reading this blog, you're probably thinking to yourself "THAT'S PROVENANCE!"

So clearly, the kinds of data that libraries and archives have been producing for many years will still have value, but we need to start thinking about how the practice of cataloguing and similar activities will need to change in response to the new technologies. Existing library data will get repurposed as training data to create efficiencies in library workflows. Organizations with large, well-managed will extract windfalls, deserved or not.

If the utility of metadata work is shifting from feeding databases to training AI models, how does this affect the product of that work? Here's how I see it:

• Tighter coupling of metadata and content. Today's discovery systems are all about decoupling data from content - we talk about creating metadata surrogates for discovery of content. Surrogates are useless for AI training; a description of a cat is useless for training without an accompanying picture of the cat. This means that the existing decoupling of metadata work from content production is doomed. You might think that copyright considerations will drive metadata production into the hands of existing content producers, but more likely organizations that focus on production of integrated training data will emerge to license content and support the necessary metadata production.

• Tighter collaboration of machines and humans. Optical character recognition (OCR) is a good example of highly focused and evolved machine learning that can still be improved by human editors. The practice of database-focused cataloguing will be made more productive as cataloguers become editors of machine generated structured data. (As if they're not already doing that!)

• Softer categorization. Discovery databases demand hard classifications. Fiction. Science. Textbooks. LC Subject Headings. AIs are much better at nuance, so the training data needs to include a lot more context. You can have a romantic novel of chemists and their textbooks, and an AI will be just fine with that, so long as you have enough description and context for the machine to assign lots of weights to many topic clusters. 

• Emphasis on novelty. New concepts and things appear constantly; an AI will extrapolate unpredictably until it gets on-topic training data. AI-OCR might recognize a new emoji, but it might not.

• Emphasis on provenance. Reality is expensive, which is why I think for-profit organizations will have difficulty in the business of providing training data while Wikipedia will continue to succeed because it requires citations. Already the internet is awash in AI produced content that sounds real, but is just automated BS. Training data will get branded.

What gets me really excited though, is thinking about how a library of the future will interact with content. I expect users will interact with the library using a pre-trained language model, rather than via databases. Content will get added to the model using packages of statistical vectors, compiled by human-expert-assisted content processors. These human experts won't be called "cataloguers" any longer but rather "meaning advisors". Or maybe "biblio-epistemologists". The  revenge of the cataloguers will be that because of the great responsibilities and breadth of expertise required, biblio-epistemologists will command salaries well exceeding the managers and programmers who will just take orders from well-trained AIs. Of course there will still be MARC records, generated by a special historical vector package guaranteed to only occasionally hallucinate.

Note: I started thinking about this after hearing a great talk (starting at about 30:00) by Michelle Wu at the Charleston Conference in November. (Kyle Courtney's talk was good, too).

Holtzbrinck has attacked Project Gutenberg in a new front in the War of Copyright Maximization

As if copyright law could be more metaphysical than it already is, German publishing behemoth Holtzbrinck wants German copyright law to apply around the world, or at least in the part of the world attached to the Internet. Holtzbrinck's empire includes Big 5 book publisher Macmillan and a majority interest in academic publisher Springer-Nature.

S. Fischer Verlag, Holtzbrinck's German publishing unit, publishes books by Heinrich Mann, Thomas Mann and Alfred Döblin. Because they died in 1950, 1955, and 1957, respectively, their published works remain under German copyright until 2021, 2026, and 2028, because German copyright lasts 70 years after the author's death, as in most of Europe. In the United States however, works by these authors published before 1923 have been in the public domain for over 40 years.

Project Gutenberg is the United States-based non-profit publisher of over 50,000 public domain ebooks, including 19 versions of the 18 works published in Europe by S. Fischer Verlag. Because Project Gutenberg distributes its ebooks over the internet, people living in Germany can download the ebooks in question, infringing on the German copyrights. This is similar to the situation of folks in the United States who download US-copyrighted works like "The Great Gatsby" from Project Gutenberg Australia (not formally connected to Project Gutenberg), which relies on the work's public domain status in Australia.

The first shot in S. Fischer Verlag's (and thus Holtzbrinck's) copyright maximization battle was fired in a German Court at the end of 2015. Holtzbrinck demanded that Project Gutenberg prevent Germans from downloading the 19 ebooks, that it turn over records of such downloading, and that it pay damages and legal fees. Despite Holtzbrinck's expansive claims of "exclusive, comprehensive, and territorially unlimited rights of use in the entire literary works of the authors Thomas Mann, Heinrich Mann, and Alfred Döblin", the venue was apparently friendly and in February of this year, the court ruled completely in favor of Holtzbrinck, including damages of €100,000, with an additional €250,000 penalty for non-compliance. Failing the payment, Project Gutenberg's Executive director, Greg Newby, would be ordered imprisoned for up to six months! You can read Project Gutenberg's summary with links to the judgment of the German court.

The German court's ruling, if it survives appeal, is a death sentence for Project Gutenberg, which has insufficient assets to pay €10,000, let alone €100,000. It's the copyright law analogy of the fatwa issued by Ayatollah Khomeini against Salman Rushdie. Oh the irony! Holtzbrinck was the publisher of Satanic Verses.

But it's worse than that. Let's suppose that Holtzbrink succeeds in getting Project Gutenberg to block direct access to the 19 ebooks from German internet addresses. Where does it stop? Must Project Gutenberg enforce the injunction on sites that mirror it? (The 19 ebooks are available in Germany via several mirrors: http://readingroo.ms/ in maybe Monserrat, http://mirrorservice.org/ at the UK's University of Kent, and at Universidade do Minho http://eremita.di.uminho.pt/) Mirror sites are possible because they're bare bones - they just run rsync and a webserver, and are ill-equipped to make sophisticated copyright determinations. Links to the mirror sites are provided by Penn's Online Books page.  Will the German courts try to remove the links for Penn's site? Penn certainly has more presence in Germany than does Project Gutenberg. And what about archives like the Internet Archive? Yes, the 19 ebooks are available via the Wayback Machine.

Anyone anywhere can run rsync and create their own Project Gutenberg mirror. I know this because I am not a disinterested party. I run the Free Ebook Foundation, whose GITenberg program uses an rsync mirror to put Project Gutenberg texts (including the Holtzbrinck 19) on Github to enable community archiving and programmatic reuse. We have no way to get Github to block users from Germany. Suppose Holtzbrinck tries to get Github to remove our repos, on the theory that Github has many German customers? Even that wouldn't work. Because Github users commonly clone and fork repos, there could be many, many forks of the Holtzbrinck 19 that would remain even if ours disappears. The Foundation's Free-Programming-Books repo has been forked to 26,0000 places! It gets worse. There's an EU proposal that would require sites like Github to install "upload filters" to enforce copyright. Such a rule would be introducing nuclear weapons into the global copyright maximization war. Github has objected.

Suppose Project Gutenberg loses its appeal of the German decision. Will Holtzbrinck ask friendly courts to wreak copyright terror on the rest of the world? Will US based organizations need to put technological shackles on otherwise free public domain ebooks? Where would the madness stop?

Holtzbrinck's actions have to be seen, not as a Germany vs. America fight, but as part of a global war by copyright owners to maximize copyrights everywhere. Who would benefit if websites around the world had to apply the longest copyright terms, no matter what country? Take a guess! Yep, it's huge multinational corporations like Holtzbrinck, Disney, Elsevier, News Corp, and Bertelsmann that stand to benefit from maximization of copyright terms. Because if Germany can stifle Project Gutenberg with German copyright law, publishers can use American copyright law to reimpose European copyright on works like The Great Gatsby and lengthen the effective copyrights for works such as Lord of the Rings and the Chronicles of Narnia.

I think Holtzbrinck's legal actions are destructive and should have consequences. With substantial businesses like Macmillan in the US, Holtzbrinck is accountable to US law. The possibility that German readers might take advantage of the US availability of texts to evade German laws must be balanced against the rights of Americans to fully enjoy the public domain that belongs to us. The value of any lost sales in Germany is likely to dwarfed by the public benefit value of Project Gutenberg availability, not to mention the prohibitive costs that would be incurred by US organizations attempting to satisfy the copyright whims of foreigners. And of course, the same goes for foreign readers and the copyright whims of Americans.

Perhaps there could be some sort of free-culture class action against Holtzbrinck on behalf of those who benefit from the availability of public domain works. I'm not a lawyer, so I have no idea if this is possible. Or perhaps folks who object to Holtzbrinck's strong arm tactics should think twice about buying Holtzbrinck books or publishing with Holtzbrinck's subsidiaries. One thing that we can do today is support Project Gutenberg's legal efforts with a donation. (I did. So should you.)

Disclaimer: The opinions expressed here are my personal opinions and do not necessarily represent policies of the Free Ebook Foundation.

Notes:

1. Works published after 1923 by authors who died before 1948 can be in the public domain in Europe but still under copyright in the US.  Fitzgerald's The Great Gatsby is one example.
2. Many works published before 1978 in the last 25 years of an author's life will be in the public domain sooner in Europe than in the US. For example, C. S. Lewis' The Last Battle is copyrighted in the US until 2051, in Europe until 2034. Tolkein's Return of the King is similarly copyrighted in the US until 2051, in Europe until 2044. 
3. Works published before 1924 by authors who died after 1948 are now in the US Public Domain but can still be copyrighted in Europe. Agatha Christie's first Hercule Poirot novel, The Mysterious Affair at Styles is perhaps the best known example of this situation, and is available (for readers in the US!) at Project Gutenberg.
4. A major victory in the War of Copyright Maximization was the Copyright Term Extension Act of 1998.
5. As an example of the many indirect ways Project Gutenberg texts can be downloaded, consider Heinrich Mann's Der Untertan. Penn's Online Books Page has many links. The Wayback Machine has a copy. It's free on Amazon (US). Hathitrust has two copies, the same copies are available from Google Books, which won't let you download it from Germany.
6. Thanks go to VM (Vicky) Brasseur for help verifying the availability or blockage of Project Gutenberg and its mirrors in Germany. She used PIA VPN Service to travel virtually to Germany.
7. The 19 ebooks are copied on Github as part of GITenberg. If you are subject to US copyright law, I encourage you to clone them! In other jurisdictions, doing so may be illegal.
• Der Untertan (at Github)
  
• Die Ehrgeizige (at Github)
  
• Professor Unrat oder Das Ende eines Tyrannen (at Github)
  
• Der Vater (at Github)
  
• Flöten und Dolche (at Github)
  
• Flaubert und die Herkunft des modernen Romans (at Github)
  
• Buddenbrooks (at Github)
  
• Der Tod in Venedig (at Github)
  
• Der kleine Herr Friedemann (at Github)
  
• Tristan (at Github)
  
• Gladius Dei (at Github)
  
• Schwere Stunde (at Github)
  
• Königliche Hoheit (at Github)
  
• Tonio Kröger (at Github)
  
• Die Ermordung einer Butterblume und andere Erzählungen (at Github)
  
• Die drei Sprünge des Wang-lun (at Github)
  
• Die Lobensteiner reisen nach Böhmen (at Github)
  
• Wallenstein (at Github) 1 of 2
  
• Wallenstein (at Github) 2 of 2
8. The geofencing software, while ineffective, is not in itself extremely expensive. However, integration of geofencing gets prohibitively expensive when you consider the number of access points,  jurisdictions and copyright determinations that would need to be made for an organization like Project Gutenberg.
9. (added March 19) Coverage elsewhere:
• Glyn Moody in Techdirt
• Chris Meadows in Teleread
• Heise.de (in German)
• Netzpolitik.org (in German)
• Comments on Project Gutenberg's post at Hacker News
• Comments on this post at The Passive Voice
• Johannes Haupt in Lesen.net

Creative Works *Ascend* into the Public Domain

It's a Wonderful Life, the movie, became a public domain work in 1975 when its copyright registration was not renewed. It had been a disappointment at the box office, but became a perennial favorite in the 80s as television stations began to play it (and play it again, and again) at Christmas time, partly because it was inexpensive content. Alas, copyright for the story it was based on, The Greatest Gift by Philip Van Doren Stern, HAD been renewed, and the movie was thus a derivative work on which royalties could be collected. In 1993, the owners of the story began to cash in on the film's popularity by enforcing their copyright on the story.

I learned about the resurrection of Wonderful Life from a talk by Krista Cox, Director of Public Policy Initiatives for ARL (Association of Research Libraries) during June's ALA Annual Conference. But I was struck by the way she described the movie's entry into the public domain. She said that it "fell into the public domain". I'd heard that phrase used before, and maybe used it myself. But why "fall"? Is the public domain somehow lower than the purgatory of being forgotten but locked into the service of a copyright owner? I don't think so. I think that when a work enters the public domain, it's fitting to say that it "ascends" into the public domain.

If you're still fighting this image in your head, consider this example: what happens when a copyright owner releases a poem from the chains of intellectual property? Does the poem drop to the floor, like a jug of milk? Or does it float into the sky, seen by everyone far and wide, and so hard to recapture?

It is a sad quirk of the current copyright regime that the life cycle of a creative work is yoked to the death of its creator. That seems wrong to me. Wouldn't it be better use the creator's birth date? We could then celebrate an author's birthday by giving their books the wings of an angel. Wouldn't that be a wonderful life?

Copyrighted Clickstream Poetry to Stop ISP Click-Selling

Congress won't let the Federal Communications Commission (FCC) protect users from Internet Service Provider (ISP) snooping-for-cash. My ISP could decide to sell a list of all the websites I visit to advertisers, and the FCC can't stop them. I wondered if there was some way I could use copyright law to prevent my ISP from selling copies of my clickstream.

So I invented "clickstream poetry". Here is my first clickstream poem, entitled My clicks are mine:

{
    "content":       
        [
        "https://roses.com",
        "http://are.com",
        "https://reddit.com",
        "http://theultraviolets.net",
        "http://are.com",
        "https://moo.com",
        "http://this.is",
        "http://work.org",
        "http://is.com",
        "https://copyright.com",
        "https://ted.com",
        "https://www.so.ch",
        "http://verizon.com",
        "http://www.faa.gov",
        "https://kyu.com",
        "https://copyright.com",
        "http://2o17.com",
        "http://eric.org",
        "http://hellman.net",
        "https://creativecommons.org/licenses/by-nc/4.0/legalcode"
        ],
    "copyright": "2017 Eric Hellman",
    "license": "https://creativecommons.org/licenses/by-nc/4.0/legalcode",
    "title": "My clicks are mine"
}

I wrote a python script that "performs" the poem for the benefit of anyone listening to my clickstream. The script requests the websites in the poem in a random order; the listener will see the website names requested, and this dataset comprises the "poem". I used a Creative Commons license that doesn't let anyone distribute copies of my poem for commercial purposes. If my ISP tries to sell a copy of my clickstream, they would be violating the license, and thus infringing my copyright to the poem. If you run the script to perform the poem (for non-commercial purposes, of course), your ISP would similarly be infringing my copyright if they try to sell your clickstream.

If I tried to sue an ISP for copyright infringement, they would likely argue that though my creation is original and used in its entirety, selling my clickstream is a "fair use". They would assert that advertising optimization (or whatever) is a "transformative use" and that it didn't affect the market for my poem. Who would pay anything for a stupid clickstream poem? How would a non-existent, hypothetical market for clickstream poetry be harmed by use in their big data algorithms?

That's why I'm offering commercial licenses to the clickstream poem My clicks are mine. This will demonstrate that a commercial market for clickstream poetry licenses exists. For only $10, you can use a copy of my poem for any purpose whatsoever, for a period of 24 hours. If an ad network wants to use my clickstream to optimize the ads they show me, more power to them, as long as they pay for a license. I imagine that, over the lifetime of my poem's copyright protection (into the 22nd century), clickstream poetry will become increasingly valuable because of uses that haven't been invented yet.

To acquire a commercial license to my poem, support my work at the Free Ebook Foundation, a 501(c)3 not-for-profit corporation, by making a donation. Or don't. I have no idea if a court would take my side against a big company (and against Congress). I'm told that judges are generally skeptical of clever "legal hacks" unless they are crafted by lawyers instead of engineers.

ISPs would probably figure out a legal or technical subterfuge around the copyright of my clickstream poem; but if they have to worry even a little, this effort will have been worth my time.

Update: I have now paid $35 to register my copyright to My clicks are mine.

The DMCA Takedown of a Feynman Lectures eBook Converter

The Feynman Lectures on Physics was one of my favorite textbooks in college. It wasn't the assigned textbook, it was recommended reading. I think the reason it doesn't work as a textbook is that every chapter is so deep that students would get sucked so far into every topic that they would never finish the course. It's the sort of book that transforms your life and way of thinking about the physical world. When I started Unglue.it, The Feynman Lectures was one of the first books I investigated for ungluing.

My friends at Caltech informed me that the rights situation with the Feynman Lectures was exceedingly complicated, and it would be a cold day in hell before the Feynman Lectures would be free to the world in digital form. It seems that Caltech and the book publishing world had made an awful hash of the rights, with print rights being owned by Pearson, and the audiovisual rights being owned by competing publisher Perseus. Heroic efforts by Caltech lawyer Adam Cochrane and some dedicated physicists and educators resulted in the untangling of rights, leading to a revised edition available through Perseus imprint Basic Books.

And last year, a miracle happened. An authorized free digital version of the lectures appeared on the web! There is sanity in the world! The Feynman Lectures had been unglued!

Vikram Verma, a software developer in Singapore, wanted to be able to read the lectures on his kindle. Although PDF versions can be purchased at $40 per volume, no versions are yet available in Kindle or EPUB formats. Since the digital format used by kindle is just a simplified version of html, the transformation of web pages to an ebook file is purely mechanical. So Verma proceeded to write a script to do the mechanical transformation – he accomplished the transformation in only 136 lines of ruby code, and published the script as a repository on Github.

Despite the fact that nothing remotely belonging to Perseus or Caltech had been published in Verma's repository, it seems that Perseus and/or Caltech was not happy that people could use Verma's code to easily make ebook files from the website. So they hauled out the favorite weapon of copyright trolls everywhere: a DMCA takedown.

I am not a lawyer, but I think that this use of a DMCA takedown was improper and possibly illegal. I'm pretty certain that use of Verma's script for personal use would be protected fair use in the United States, under Betamax. There are no terms of use at the Feynman Lectures website for Verma's script to violate; there wasn't even a robots exclusion. So even a legal theory that Verma's code was inducing others to violate website terms falls flat on its face.  But alas, there's no penalty for abusive DMCA takedowns, so Perseus' main downside is having to read annoying blog posts like this one. And Perseus does need to look out for their authors' rights – they probably aren't in a position to asses what some ruby code does.

Luckily, Github has a policy of publishing every DMCA takedown notice it receives, which is how I found out about Perseus' action, and Verma's counternotice. Perseus had 10 days to respond to the counter-notice and since they failed to do so, Github has re-opened the repository.

In the meantime, the Feynman Lectures website has taken some steps to break Verma's script. For example, instead of a link to http://www.feynmanlectures.caltech.edu/II_28.html (my favorite chapter), the table of contents now has a link to javascript:Goto(2,18). This will take about 10 minutes for Verma to work around. In addition, the website now has a robot exclusion (except for Googlebot).

Michael Gottlieb, the editor of The Feynman Lectures on Physics New Millennium Edition added this issue to the repo:

The online edition of The Feynman Lectures Website posted at www.feynmanlectures.caltech.edu and www.feynmanlectures.info is free-to-read online. However, it is under copyright. The copyright notice can be found on every page: it is in the footer that your script strips out! The online edition of FLP can not be downloaded, copied or transferred for any purpose (other than reading online) without the written consent of the copyright holders (The California Institute of Technology, Michael A. Gottlieb, and Rudolf Pfeiffer), or their licensees (Basic Books). Every one of you is violating my copyright by running the flp.mobi script. Furthermore Github is committing contributory infringement by hosting your activities on their website. A lot of hard work and money and time went into making the online edition of FLP. It is a gift to the world - one that I personally put a great deal of effort into, and I feel you are abusing it. We posted it to benefit the many bright young people around the world who previously had no access to FLP for economic or other reasons. It isn't there to provide a source of personal copies for a bunch of programmers who can easily afford to buy the books and ebooks!! Let me tell you something: Rudi Pfeiffer and I, who have worked on FLP as unpaid volunteers for about a decade, make no money from the sale of the printed books. We earn something only on the electronic editions (though, of course, not the HTML edition you are raping, to which we give anyone access for free!), and we are planning to make MOBI editions of FLP - we are working on one right now. By publishing the flp.mobi script you are essentially taking bread out of my mouth and Rudi's, a retired guy, and a schoolteacher. Proud of yourselves? That's all I have to say personally. Github has received DMCA takedown notices and if this script doesn't come down pretty soon they (and very possibly you) might be hearing from some lawyers. As of Monday, this matter is in the hands of Perseus's Domestic Rights Department and Caltech's Office of The General Counsel. 

Michael A. Gottlieb
Editor, The Feynman Lectures on Physics New Millennium Edition
www.feynmanlectures.info
www.feynmanlectures.caltech.edu

(Note: Gottlieb's description of the website copyright notice is inaccurate- it says nothing about "downloaded, copied or transferred for any purpose")

This is kind of sad. Here Caltech did the right and noble thing and made the Feynman Lectures free as a website. That they can make money from the work via sales of print and other versions is great. But having done that, trying to control what people do with the free digital version (other than sell it) is a hopeless endeavor, and they should just stop.

I was wrong. The Feynman Lectures hasn't been unglued.

Update, March 3: Verma made a one-line change to the script to un-break it. But it's not a polite script, so don't all go and run it. Better to ask Caltech to use the script to make epubs and mobi's for sale; I would certainly pay for my DRM-free copy!

Update, March 4: Gottlieb e-mailed me to say that Perseus didn't respond to the counter-notice because Github's email notice went to a spam filter, and that more takedowns would be coming. He seemed to think that I am one of the flp.mobi developers and warned that I have put myself "in a precarious legal position". To me clear, I am not involved in the development or publication of flp.mobi. I hope its existence is not used as a pretext to take down or lock down the FLP website. Also, high-quality epub and mobi are on the way!

Update, March 7: Verma e-mailed me to say he is voluntarily taking down his repo:

I'm taking down my copy of the repository on Monday morning, in worry its continued availability will lead Caltech to discontinue free online access to FLP. You're each welcome to adopt maintainership if you prefer, though I would rather if you did not.

Techdirt has a post and commentary.

Update, March 10: Verma's repo is now history, but forks of it remain in 15 places, including, bizarrely, Gottlieb's own Github page. 

Google Books and Black-Box Copyright Jurisprudence

Last week, eight years after the first lawsuit was filed to stop the Google Books Project, Judge Denny Chin finally ruled on the core merits of the case. The decision is being widely hailed on one side as a "tremendous victory for fair use" and on the other side as a "fundamental challenge to copyright". But these are short-term perspectives. I think that the long term impact of the decision may turn on the acceptance of Chin's approach to technology's transformation of copyright, which I would characterize as Black-Box Jurisprudence.

In my view, the core holdings about fair use were never in much doubt. The argument saying that indexing or lexical analysis or data-mining of books always requires the permission of a rights holder was never very defensible, or even seriously argued. A holding that display of snippets was not fair use would have made scholarly writing in the digital age impossible; a decision the other way on snippets would have been swimming up a judicial stream. But fair use is always a weighing of factors, and the untold story in the Google Books case is about the factors that didn't get weighed.

The reason that Google got sued in the first place was less about "what Google did" than about "how Google did it".  Google made huge numbers of copies of books without permission of the rights holders. Judge Chin's ruling said, effectively, that all those copies were incidental to the fair use.

[I]f there is no liability for copyright infringement on the libraries' part, there can be no liability on Google's part.

In the end, it didn't matter how Google did what it did. In Judge Chin's analysis, copyright is concerned only with the ends, not the means. Copyright seems not to be concerned with what happens inside the black box.

Chin is not alone in this approach. His opinion follow's Judge Baer's ruling in the Hathitrust case, which featured a ringing endorsement of the Library's fair use

I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants' [Mass Digitization Project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act].

But for, me, the surprise in Baer's opinion was his transformation of the Arriba Soft case into a broad license for infringement. In that case, display of thumbnail images by a search engine was held to be fair use, and the copying of the images in the course of producing thumbnails was held to be necessary for the protected use. Judge Baer wrote that the fact that the images were on websites available for anyone anywhere to download was not relevant to the analysis, which he then applied to Google's scanning and OCR of physical books.

Although Plaintiffs assert that the decisions in Perfect 10 and Arriba Soft are distinguishable because in those cases the works were already available on the internet, Aug. 6, 2012 Tr. 19:2–4, I fail to see why that is a difference that makes a difference. As with Plaintiffs’ attempt to bar the availability of fair use as a defense at all, this argument relies heavily on the incorrect assumption that the scale of Defendants’ copying automatically renders it unlawful.

Baer thus reduces and equates Google's million dollar scanning operation with Arriba Soft's one line of code because they're in a fair use black box.

The Black Box approach to copyright can cut both ways. In Chin's dissenting opinion in the Aereo case, he wrote that it didn't matter that Aereo had engineered a way to use completely legal technical means to stream television signals over the internet.

In my view, by transmitting (or retransmitting) copyrighted programming to
the public without authorization, Aereo is engaging in copyright infringement in clear violation of the Copyright Act. [...] The system employs thousands of individual dime-sized antennas, but there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.

In the Aereo case, Chin argued that since the end result of Aereo's engineering was a system with copyright infringing intent, the under-the-hood details of Aereo's system were not compelling. (Read James Grimmelmann for more on this case and copyright arbitrage in general.)

So when presented with cases where copyright law and technology collide, Chin has more or less adopted a consistent approach that isn't inherently pro-copyright or pro-fair-use.

If Chin's ruling had focused on the infringing means (i.e. massive copying) rather than on the fair-use ends in the Google Books case, Google could have gone back to the drawing board to devise a non-infringing means to accomplish the same ends. It would have been more expensive (à la Aereo), but the plain fact is that ten engineers can run technical circles around a thousand lawyers. In the end, Google would have lost the battle but would be far ahead in the war.

As the case now stands, while Google has a free hand to go back and improve and expand its scanning operations, it is still constrained in what it can deliver. For example, since Chin's decision cites the lack of advertising on snippet result pages in his fair use analysis, Google can't put advertising there without risking another $100 million lawsuit. Another innovator in the space can't go and do things differently without worrying about another judge's fair-use analysis.

The advantages of a black box legal approach is its practicality. Judges don't have to understand the intricacies of technology in order to decide legal questions. Technical processes are opaque for business reasons, too. But perhaps more importantly, a black-box approach to copyright law means that engineers can't use clever hacks to get around copyright.

The danger of the black box is that it pretends that technology doesn't matter, that code isn't law. Copyright law is rooted in technology, that of the printing press, and turning it into an abstraction that can also govern digital media wile ignoring what goes on behind the curtain is a dubious project. A complex enterprise like Google Books is a long journey from inception to delivery. Imagine if highway safety was addressed by regulating total travel times. Does it make sense to regulate a new technology like airplane travel in the same way?

Perhaps there ought to be a fifth factor in fair use analyses of systems more complex than a printing press. In addition to the usual four factors, Judges could also be weighing whether the steps involved in accomplishing a fair use would stand under their own 4 factor analysis. In the Google Books case, the analysis could have incorporated a weighing of the scanning operation by itself. Similarly, Aereo's meticulous adherence to legal means could weigh in favor of a fair-use determination.

My worry is that in other situations, perhaps with technologies we haven't imagined yet, the black box legal approach will end up with very wrong technical results. And then we'll be stuck, waiting for Congress to fix things. Look at what's happening as digital surveillance collides with crypto-security. There, the courts have uniformly refused to look inside the black box of the NSA, and the results may end up being disastrous.

(Gary Price has a thorough opinion round-up at Infodocket.)

NYLSLR: The eBook Copyright Page is Broken

Somehow it slipped my mind that my article "The eBook Copyright Page is Broken" was published in the New York Law School Law Review in April. And I am still not a lawyer! Here's the meat of the article:

The traditional copyright statement is thoroughly and fundamentally broken. Consider the simplest possible case of a single copyright holder:

                         © Eric S. Hellman, 2013. All Rights Reserved. 

This is broken in the following ways:

1. Since there currently are not any copyright formalities, the copyright symbol means nothing. The work is subject to copyright with or without the copyright symbol.
2. The work may also not be subject to copyright, for example, if Eric S. Hellman is a government employee, a robot, or a non-creative compiler of factual information. In these cases there is no copyright even if there is a copyright symbol present. There is no legal duty for a publisher to put a copyright symbol only on a copyrightable work. How is the ebook user supposed to know the true copyright status of a digital work? 
3. “Eric S. Hellman” is an uncommon name. But suppose the author is named ”John Smith.” What use, then, is the copyright statement? It does not specify which Eric S. Hellman or which John Smith is the author.
4. The asserted name of the copyright holder can’t be relied on because text in a digital file can be altered without a trace. It’s simple to take a digital copy of Merchants of Culture and change its asserted copyright holder to “John Smith,” then redistribute it. This is a negligible problem in the print world.
5. The asserted date of publication may be unrelated to the date of the underlying copyright. For purposes of copyright (for example, when a work is produced as a work-for-hire), re-publication of a book does not change the copyright expiration date of the underlying text.
6. There is no specification of the work being copyrighted. In print there’s not much ambiguity, but digital books are composite objects (text and graphics are always separate entities in a digital book file) and are frequently distributed in pieces. Some ebooks even have front matter distributed as a pdf file completely separate from the chapters. In other cases, an ebook may be displayed on a website that has a separate set of copyright statements.
7. If the digital book is legally on your ebook reader, then, somehow, the rights holder has granted you some rights, perhaps under the terms of an explicit license or with the license implicit in its availability on a website. Either way, “all rights” have not been reserved. Licenses are not needed for printed books, but they may be needed for ebooks.

In February, I wrote about ebook front matter and back matter and there's more work to be done in this vein.

The last footnote deserves some glossing. In it, I assert that the ccREL submission for marking Creative Commons status of web pages is currently in conflict with the EPUB 3 standard for ebooks. While that's technically true, it's a bit misleading. A better way to say it is that developments in HTML5 and EPUB3 have made ccREL's approach archaic. The metadata machinery in EPUB3 and HTML5 is fully up to the task of expressing and applying Creative Commons licenses. What's lacking is consensus around which of the available mechanisms to use. Since the RDFa vs. Microdata in HTML5 controversy has not yet fully shaken out, you can't really follow ccREL as written, so we'll need to have some patience.

Proposal: The Dated Creative Commons License

Back on June 15, Peter Suber's book Open Access itself went open access, one year after its initial publication. You can get the ebook for free from MIT Press, but because of the Creative Commons license you can also get it from Internet Archive, and Unglue.it has a page to help you download it. It seems appropriate for this book to be its own publishing experiment, and from what I hear, the book has done well, in addition to doing good.

The "embargoed" or "delayed" model for open-access is tried and true in the scholarly journal business, and arguments about the appropriate length and propriety of embargoes are entrenched. In medical research, funding agencies such as NIH  demand embargoes of no longer than 12 months,  while humanities publishers argue that they need longer embargoes. Recently, the American Historical Association recommended that doctoral students be allowed to embargo their dissertations for up to six years. (Suber's book discusses delayed open access and embargoes in chapter 8, Casualties.)

Delayed open access for books, by contrast, is almost nonexistent. For ebooks, it would seem that an exclusive selling period followed by Creative Commons licensing could unlock a lot of value for society, and not just for scholarly works. Most books do most of their sales in the first year of publication and not much after that. The current duration of copyright, typically more than a hundred years, seems disproportionate in comparison. Used book stores capture some of the residual value of print books without profit to the rights holder, and libraries help to preserve another chunk of value. The lack of first-sale rights for ebooks leaves huge doubts about the viability of these channels for ebooks.

MIT Press accomplished the delayed open access with a promise on the copyright page of the ebook. Readers could rely on the integrity and prestige of MIT Press to make good on that promise. Wouldn't it be nice if doing something similar was easy to do for any sort of work, just like attaching a copyright date? Suppose I wanted exclusive rights to this blog post for five years, it would be nice if I could just write "(CC BY 2018)" with a url to provide the legal code.

I don't think I can really do that easily, today. Without some sort of license language, nothing would prevent me from changing my mind, so my prospective license offer would not be reliable. Today's Creative Commons licenses depend on conveyance of the license and assume immediate effect.  In the publishing world, companies go bankrupt or get acquired all the time. If Elsevier had acquired MIT Press in May, a purchaser of the book in April would have no assurance that the book would really go Open Access in June. This is not such an issue with journals because they're continuing publications.

Although I'm not a lawyer or anything, I've taken a first stab at language for applying a future date to a Creative Commons license. I've used Docracy to make the document public so that anyone can make modifications to improve it. (If you do a lot of contracts and you haven't seen Docracy, I suggest you go check it out!)  Or maybe other people have worked on this and can contribute some better language.

The beauty of Creative Commons is that it gives creators more options for distributing their works in partnership with users. A robust way of granting future CC licenses will allow more creators to vote with their works for mitigation of over-long terms-of-copyright.

Update: a quick comment from Timothy Vollmer points to a thread on [cc-licenses] that's very relevant, including some interesting discussion of the mysteriously named "Founder's License".

Update 2: James Grimmelmann, a real law professor, suggests via Twitter that "It is not out of the question that one could unilaterally enter into a binding future license at present." and points to the language he used on a 2005 Yale Law Journal Note:

Copyright © 2005 by The Yale Law Journal Company, Inc. For classroom use information, see http://www.yalelawjournal.org/about.asp. After June 1, 2006, this Note is licensed under the Creative Commons Attribution 2.0 License, http://creativecommons.org/licenses/by/2.0/. Any use under this license must carry the notation “First published in The Yale Law Journal, Vol. 114, pp. 1719-58.”

This suggests that maybe I'm making things too complicated, which wouldn't be the first time. But I wish Creative Commons or someone would just tell us what to do!

Update August 9: I've written more about what we want to do with Dated CC at Unglue.it.

It [was] LEGAL to download The Great Gatsby... (revised January 1, 2021!)

...in most of the world!

...in the US, too, after January 1, 2021. This post, originally written in May 2013, needed some updating.

If you are were in the US, then tough luck, the rights belong belonged to the CBS Corporation, and you'll have would have had to pay Amazon $7.80 $4.99 to get it legally on your Kindle.

If you are sober enough to know which country's laws you're you were subject to (not that sobriety is a guarantee of jurisdiction-awareness) then you probably still don't know whether it's was legal to download The Great Gatsby from Project Gutenberg Australia. It's too bad that SOPA didn't pass because then all the US-illegal links to The Great Gatsby would be censored by law, and you would automatically have infringing links removed or not as the case may require.

So this is a little auto-link-legalizer page for you. Just click on the appropriate link:

• I'm subject to US copyright law.
• I'm subject to the copyright law of Australia, Canada, or some other pirate jurisdiction.
• I have no clue what copyright law I'm subject to.
• I'm a time traveler from the year 2021 or later.

A wise decision.

You've just been spared jail time and statutory damages up to $150,000 per download of the infringing files from Project Gutenberg Australia or the Univesity of Adelaide. Because The Great Gatsby is not part of the public domain in the US. Consider yourself lucky. And what ever you do, don't click on this link, which probably would be a violation of the anti-circumvention provisions of the Digital Millenium Copyright Act. SO DON"T DO IT!

G'day, eh! Remember, if you're in the US, an maybe in other jurisdictions that I'm sure people will comment on but I'm too lazy to look up, you should NOT be reading this so please stop NOW.

The Great Gatsby is available in a number of formats for your reading pleasure.

The Project Gutenberg Australia has it here. High quality EPUB and Kindle formats are available from Standard Ebooks.

Yeah, me neither. but it's best to be safe and consult your lawyer before clicking this link. Kevin Smith's explanation of US Copyright Law might also help.

But you know, CBS won't notice one or two clicks. Even a hundred or so clicks and it's just some drunk displaced ex-pats. But if tens of millions of copyright-confused readers started clicking, the politicians and the plutocrats might notice a little something. The might even think it was a movement. The Aussie Gatsby Click on a Dodgy Link Movement. And all you got to do is click. If you want to end war and stuff, you gotta press that mouse button with feeling.

Right then. If anyone tries to tell you that The Great Gatsby has "fallen out of copyright protection", call them on that bullshit. Because that's disrespectful of a great work that has ascended into the Public Domain. Finally, on January 1, 2021, The Great Gatsby has escaped its copyright imprisonment.
Project Gutenberg Australia has it here. High quality EPUB and Kindle formats are available from Standard Ebooks.

Update (5/9/2013): Good discussion on Hacker News surfaced the answer via ernesth to my lazyweb query. The Great Gatsby is in the public domain in all countries but 7: the USA, Mexico, Guatemala, Honduras, Samoa, Saint Vincent and Grenadines, and Ivory Coast. All countries except the USA apply a law that states that books enter the public domain a given number of years after the death of the author. In Europe, it is 70 years, in Canada 50, in Mexico 100. See List of countries copyright length. It's not known if copyright exists in other parts of the galaxy. 

Update (1/1/2021): Happy Public Domain Day!

Consternation Over Ability to Copy and Paste

Over at IPWatchdog, Gene Quinn has responded to what he perceives as rampant copyright infringement by his audience "made up of lawyers, lobbyists, inventors, Staffers, artists" by adding some javascript that blocks copy and paste. Luckily I have Safari and Readability, so it doesn't affect me, but I am concerned for the many communities who depend on copy and paste in one way or another for access to information.

Here is the post, translated in its entirety, for use by those who find it easier to read Igpay Atinlay, than the usual jargon-filled legal mumbo-jumbo:

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Thanks to Timothy Lee for the heads-up.

Einstein's Never-Ending Copyright

Photo by Miroslav Duchacek CC-BY-SA-3.0 

In my post on Quantum Copyright, I promised, in my following post, to cover the impact of Special Relativity on Copyright. I was joking. I had no intention of putting words in Einstein's mouth about our copyright laws. How silly would that be?

Have you ever tried NOT THINKING ABOUT GIRAFFES? It's just hopeless. So here you go:

In special relativity, the passage of time depends on your frame of reference. Time is relative, and simultaneity of events can't be defined except relative to their respective reference frames.

So suppose I take a book with me on a spaceship that moves at 99.99% the speed of light relative to your reference frame. Then every day that elapses for me is about 71 days for you. In two years or so, the book goes out of copyright, and the next planet I visit, I can make copies for every sentient being I can find.

Seems a lot of trouble when I can just put it on BitTorrent.

Ah, but imagine that I'm a world-famous trillionaire author, and I'm worried about the day when my best-selling novel goes out of copyright, and everyone can just rip me off? All I have to do is buy myself a spaceship and go for a vacation. Since my copyright won't expire till 70 years after my death, my hypervelocity excursion will dilate my copyright term for a long, long time. When I get back a year from now (in my reference frame), 71 years will have elapsed on earth, and with the royalties I'll have earned (plus interest) I can probably acquire every other book on the planet. And both houses of Congress. I won't have aged much, so I'll just go on another interstellar jaunt. Rinse and repeat.

Start saving up, Jo Rowling.

For the rest of us, the bright side of this is that we can be pretty sure that copyright law will get be updated at least before interstellar drives are perfected.