Heisenberg's Uncertain Copyright

If you participate in LinkedIn, you've been recently deluged with requests to endorse the skills of people in your network. I decided to have some fun with that, and listed "Quantum Copyright" as one of my skills. To cement my claim to be the world's foremost expert in quantum copyright, I decided to examine the microscopic question of where copies occur. The closer you look, the more uncertain the location of the copying becomes!

It turns out that where a copy is made has consequences. Consider Fitzgerald's The Great Gatsby. A recent LibraryCity blog post by David Rothman suggested that Bill Gates should use a tiny bit of his fortune to buy out the remaining copyright of Gatsby, supposedly one of Gates' favorites. On Unglue.it, 70 ungluers share the sentiment that The Great Gatsby should join Huckleberry Finn as a great American novel that belongs to all of us in the public commons.

Funny thing is, The Great Gatsby already belongs to every Australian, in the sense that Australians have the right to read and copy it for free without anybody's permission. In the US, it belongs to the CBS Corporation, and if you want to read it on Kindle, it'll cost you $7.80.

If you copy Gatsby in Australia, no problem, it's cool, because Gatsby has entered the public domain. There's an excellent version available from Project Gutenberg Australia. If you do it in the US without permission from CBS, it constitutes copyright infringement and is punishable with jail time and statutory damages up to $150,000 per incidence of infringement. So it really matters where the copying occurs.

click to beam

But we live in an era where books can be transported from one location to another without one of those Star Trek machines which turn goofy aliens and crewmen into particle beams. It's no longer obvious where copying occurs.

Suppose you have a book sitting on a computer in Australia. The computer breaks the book into thousands of UDP packets and sends them into the Internet. Copying can't have occurred yet, because the packets aren't fixed in any form. For copyright purposes,

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed. http://www.copyright.gov/title17/92chap1.html

Now suppose the packets are reassembled on my hard drive in New Jersey. A copy of "The Great Gatsby" has materialized. Has a copyright been infringed? If I was in Australia and the source of the packets was in the US, would the answer be different?

click to beam

I don't know the answer; I am not a lawyer. But I'm an engineer and I can read and I understand the communication processes that have occurred in the book transporter. I'm pretty sure that copying has occurred, and that part of the copying process occurs in a location where no copyright attaches to The Great Gatsby.

Maybe it doesn't even matter where the copying occurs. Maybe it depends on who's in control of the copying. In the age of quantum copyright, action at a distance is not at all a problem. Here's what US Copyright law says:

The owner of copyright under this title has the exclusive rights to do and to authorize ... to reproduce the copyrighted work in copies or phonorecords;

You could read that as saying only that nobody other than the copyright owner and subject to the jurisdiction of the statute is allowed to reproduce the copyrighted work regardless of where reproduction occurs. So if the person doing the copying is in Australia, maybe it doesn't matter where the copying actually occurs.

So we have 8 different quantum copyright location scenarios; 6 have uncertainty as to the fact of infringement:

1. Person copying, copy source, and copy destination all in US. (US law controls!)
2. Person copying, copy source, and copy destination all in Australia. (Australia law controls!)
3. Person copying and copy source in US, copy destination in Australia.
4. Person copying and copy source in Australia, copy destination in US.
5. Person copying and copy destination in US, copy source in Australia.
6. Person copying and copy destination in Australia, copy source in US.
7. Person copying in US, copy source and copy destination in Australia.
8. Person copying in Australia, copy source and copy destination in US.

You could also be a cynic and say the only thing that matters is where the judge is sitting. But really, this whole situation with territorial copyright variation is ludicrous and prehistoric and we really should be spending our time and money curing malaria instead.

Next week: copyright and special relativity. In what frame of reference do copyright terms exist?

Notes:

• Kirtsaeng is another issue entirely. (But see comments.)
• In January I wrote about the intersection of SOPA and copyright territoriality. I hope that's a moot issue!
• Techdirt is covering Australia's review of its copyright laws.

How Can We Change the Future? The Tomorrow Project

It turns out that Intel, the giant chip maker, employs a full time futurist. His name is Brian David Johnson, and he actually gets paid to go around asking people what the future might be like. Intel says they're the "Sponsors of Tomorrow", so I guess they want to have a clue about what they're sponsoring. When I worked at Intel in the early 80's, we could have sponsored a thousand futurist studies, and not one of them would have predicted that Intel would someday employ a "Chief Futurist" leading a "Tomorrow Project".

None of those futurists would have predicted that over a hundred thousand people would show up at New York Comic-Con, either. But it's happening. The show is completely sold out. Jacob Javits Convention Center is packed to the gills with zombies, otaku, wood nymphs, transformers and girls with blue, purple or red hair- i don't know the word for them.

Many of them packed a very serious session hosted by Johnson featuring Cory Doctorow, the science fiction writer, blogger, and activist. The session was entitled "Sci-Fi Prototyping: Designing the Future Panel". No on in the audience was disappointed not to hear about the future of the panel, and we also did without Doug Rushkoff, whose appearance was scheduled to make the panel a panel, but who failed to predict his future schedule well enough to participate.

Doctorow, Johnson, Rushkoff, and will.i.am, who was accurately predicted to not be present, have contributed to The Tomorrow Project Anthology which had its launch today. Nostalgically enough, this is a book. Less nostalgic, but perhaps just as dated, it's a 1.8MB PDF file. Made available for free, by Intel. Doctorow's contribution is a novella by Doctorow called The Knights of the Rainbow Table which so far (I'm on p.17), is a fun read. It's about the nano-apocalypse that will occur in the near future when it's easy for a group of grad student low-lifes to crack everybody's website password security.

Johnson framed the session as a discussion about the ways in which science fiction can provide a narrative to steer the future. I'm a bit skeptical. I don't think that the "narrative" of Star Trek communicators caused Motorola engineers to create the flip-phone, even if they were fans of the show while growing up. Doctorow had a really interesting analogy, though. He said a science fiction story was like a Petri dish that lets an microscopic idea grow into a huge colony of micro-organisms visible to the naked eye. That strikes me as a really useful way to think of how fiction influences the world.

The problem with ascribing power to narrative is evident if you look at the world around us. Narratives compete with other narratives, and their relative power derives not from their truth or their skill, but rather from their fit. Narratives warning about the death of privacy, for example, have scant power compared to the offer of a free movie, or even a free PDF download. No one pays attention to a narrative unless it fits with what they want to do today.

Before the panel, Doctorow expressed to me his strong commitment to making his works available with Creative Commons licenses; He'll certainly release The Knights of the Rainbow Table that way. But let's work on Intel to change the future a bit. Why can't they release The Tomorrow Project Anthology with a similar license? (the current license is all rights reserved, you can download it, but you can't redistribute it) You CAN help change the future- file a request to post the whole ebook using this form.
 

In yesterday's tomorrow, androids dream of electric sheep, cars fly around LA, and in Blade Runner, people read newspapers on paper. What will today's tomorrow look like tomorrow? I wonder how much of today's best writing about the future will be available to people ten years from now. Unfortunately, the answer depends on licensing details that most creators don't think much about. Doctorow is an exception.

Can JSTOR Solve the Course-Assigned eBook Problem?

Just imagine if libraries were like airlines. Your flight to Information could cost $20 or $2,000 depending on how far in advance you book, whether you're connecting through Seattle or going direct, how full the flight is, the day of the week, the phase of the moon, and who knows what else. Airlines employ operations research Ph.D.s who create and maintain elaborate systems to "manage the load". These systems make sure that people who have little choice of when and where to fly pay a lot more than others who have flexibility to seek low fares.

You don't have to imagine very hard to realize that academic libraries are part of a system that's a lot like the airline industry. Consider college students. Once they've signed up for a class, they have little flexibility with their assigned reading. Even a college library with a 10 million volume collection won't be of much use to them, because someone else will have checked out the assigned reading – if it's not on reserve. The student is sent to the college bookstore, where it's a pretty good bet the book won't be on sale. If the student has planned in advance, they might bought a copy used on Amazon, or borrowed it from an upperclassman.

Academic book "load management" was not devised by financial engineers, it arose as a by-product of a paper-based distribution system. Students don't perceive librarians as evil just because they haven't bought a hundred copies to supply the whole class. But the environment is very different when the books are digital. Scarcity of digital books is a manufactured fiction, so it's easy for a student to perceive the library as being complicit in a money-extraction machine, never mind the benefits that accrue globally when publishers are rewarded for producing books worthy of being assigned in a course.

Libraries hate saying “No” to their users, so ebook models that allow unlimited simultaneous access are very attractive to them. Even limited simultaneous access would help meet the needs of students. The same models are very scary for publishers, because they count on profits from selling many copies of course-assigned texts to cover their losses on slow-selling titles. Academic libraries don't have the money to replace that revenue, because the embedded practice is for students to pay for their own textbooks.

A few universities, notably Indiana University, have started to reexamine the role of academic libraries in the digital provision of course-assigned textbooks. Libraries have a better bargaining position with publishers than students, and are in a unique position to integrate digital texts with databases and other types of information available from the library. It makes little sense to tell students to come to the library for quality information- unless they need it for a class!

Publishers also have incentives to find library-based digital solutions for course-assigned reading. If the library can be charged based on the number of students enrolled in a course, no revenue is lost to used-book sellers, peer-to-peer networks or students who don't bother to read the texts. Solutions that work have nonetheless been elusive, partly because it's very difficult to have print and digital models coexisting, but also because budgets are tight all around.

At Ithaka's Sustainable Scholarship meeting this week, JSTOR's Bruce Heterick told the gathered publishers and librarians that JSTOR's ebook program, to be launched in 3rd quarter of 2012, would include a pilot program to address the course-assigned title problem. This news was warmly received by the entire audience. Books at JSTOR will make over 15,000 books available on multiple platforms (including ebrary and NetLibrary) and on multiple devices (iOS and Android). At launch, the ebooks will be offered on a sales model, and all the ebooks will be archived in Ithaka's Portico service so that libraries can be assured that their access will really be perpetual. The icing on the cake is that the ebooks will be integrated with JSTOR's discovery and crosslinking platform, which is very popular with the students and faculty at subscribing institutions.

Although the details of the course-assigned title pilot were not yet decided, JSTOR Managing Director Laura Brown responded to questions by saying that as many as 3 different models would be tried in the pilot. JSTOR's subscriber outreach has suggested that different approaches are needed in different sorts of institutions. I suppose you could think of these models as “charter flights” that can be added to package tours.

Regular readers of the Go To Hellman blog will know that I'm working on a new approach to selling ebooks. I view every market problem as a possible opportunity for the new model, which we call "unglued ebooks". Course-assigned titles are no exception.

My analysis indicates that the market dynamics for some books may favor the ungluing model. It works by aggregating donations by many people and institutions with a stake in a particular book and then paying the book's rights holders who “name their own price” to issue a Creative Commons licensed digital edition. The ebook can then be used without limit by everyone, everywhere. (OK, it’s backwards from Priceline, but we totally have to get Leonard Nimoy as our spokesperson!)

In situations where two titles compete with each other to be put on a course list, the ungluing model introduces a severe form of price competition. A title that is successfully unglued, even at a price equal to the present value of its entire future revenue stream, would have a huge advantage over a competing title that remained on the per-copy selling model. It remains to be seen, of course, whether students and libraries will be able to organize an ungluing campaign to meet the high ungluing prices commanded by books with steady recurring sales. Still, there is a huge variety of courses and books, and thus a reasonable chance that the model will work in at least a few cases.

There’s a great need for experimentation and risk-taking by libraries and publishers in the transition to the digital environment. It's good to see JSTOR step up to that plate. But don’t take my airline industry analogy too seriously. When developing new models for ebooks and libraries, let’s omit the pat-down security searches and checked-baggage fees, OK?

Library Journal: If Librarians Ran the Supermarket

My essay on food replicators for Library Journal, published back in 2010, is posted.

With all the business models in my salad, I started to think about how dinner would be different if vegetables were somehow digital products. All the hours of my youth wasted on Star Trek reruns began to flash before my eyes. What business models might evolve to make the food replicators of the future work? My brain gears started turning...

I learned about purslane from a radio segment on WNYC. Apparently it's really high in omega-3 fatty acids (the good kind) and vitamins. After years of pulling it out of the lawn I thought it would be fun to put it in a salad, and it turned out to be quite good.

For the salad shown, I paired it with mango, carrots, cabbage and a bit of the red amaranth which has aggressively self-seeded from last year's crop, making itself into another sort of weed. Red amaranth leaves work well in recipes designed for spinach, and it's really quite delicious. You can eat the young leaves raw. Last year I harvested the amaranth seed, which can add a poppy-seed like texture to cookies or pound cake.

A couple of weeks ago, I told a friend about purslane. She's well known locally for her organic garden, which supplies her with all her family's vegetables year round, and she periodically gives tours of her garden as a form of evangelism. She was aghast at the idea of eating purslane, though; even organic gardeners hate weeds!

Real Trekkies will be aware that the "replicators" aboard 24th century starships such as the one captained by Jean-Luc Picard weren't restricted to replicating food; they were more like 3-d copying machines. It's not clear if this would make the intellectual property rights to the food any different. If it were possible to copy an avocado, would it be possible to copyright it? If you can copyright a 2-d photo, why would a 3-d photo be any different?

The "food synthesizers" of Jim Kirk's 23rd century worked more on the lines of the food replicators in my essay. Unlike replicators, which understood voice commands ("tea, Earl Grey, hot") food synthesizers used program tapes or cards inserted into a slot. Clearly the food patterns used more petabytes than could be transmitted over the giga-ultra-wifi in use at that time.

In 2010, food recipes can't be copyrighted. Fortunately, clothing designs are also not subject to copyright; making them so would kill off fashion as we know it.

Patron Driven eBook Acquisition: Crab Legs vs. Spinach

The showpiece of many Chinese Buffet restaurants is the crab legs. What a bargain! One fixed price for all the crab legs you can eat. How do they do it?

The secret to an effective yet profitable Chinese buffet is the presentation of foods with a moderate CBFOM (Chinese Buffet Figure Of Merit), which is computed using the following formula:

CBFOM = SF * P/W,

where P = Price, W = Weight, and SF = Shovel Factor, a measure of how fast a food can be consumed popularized in the early 80's by noted comic epicurean Garfield the Cat.

Crab legs, while expensive, are difficult to eat quickly, while soda (always offered before you attack the buffet) is easy to guzzle and very cheap.

Libraries are slowly getting used to the idea of providing all-you-can-eat services. It used to be that consumption of books in a library was sharply limited by supply. There was never any danger that patrons would bankrupt the library by reading too many literary crab legs, because once the tasty dish had been checked out by the first patron, other patrons had to settle for chicken nuggets and broccoli with garlic souce. The introduction of ebooks is changing everything. What used to be an obvious limit resulting from a book's physicality has become a completely arbitrary limit imposed by impenetrable licensing agreements. It's as if your Chinese Buffet restaurant installed one of those food replicators from Star Trek and the instructions came in Klingon.

Libraries dealing with ebooks have to reconcile their mission of providing access with their limited and declining budgets. One model for doing this is known as "Patron-Driven" (PDA) or "Demand-Driven" (DDA) Acquisition. In this model, the library offers access to a huge menu of content, but only pays for material actually used by patrons. Since 50% of print material acquired by academic libraries never gets used, this results in a 50% cost savings (or 100% increase in bang for the buck, assuming you have bucks).

At the University of Texas Libraries, Dennis Dillon, Associate Director for Research Services, is expecting continuing budget cuts through 2014. "I only want to spend money on books that have a fighting chance of being used" he told me recently. At UT Austin alone Dillon has to address the needs of 20,000 staff and 50,000 students with a book budget of a bit over one and a half million dollars, about $30 per student. $700,000 is spent by selectors, with per-department allocations designed to win faculty "hearts and minds". The rest is split between traditional print approval plans and ebooks.

UT's ebook budget is applied to a demand-driven plan offered by Ebook Library (EBL). About a 100,000 ebooks are offered at UT through EBL. Patrons can search and view any of the ebooks for 5 minutes without incurring any charge to the library. After five minutes, a window pops up, asking the patron if they wish to continue using the ebook. If the patron continues, the library is charged for a use of the ebook, but the patron never knows about the charge. The patron can continue to use the book for 10 days without the library incurring an additional use fee. On the fourth use of an ebook title in the library, an automatic "purchase" is made, and the ebook is added to the library's permanent collection.

Once purchased, an EBL ebook can be "used" up to 365 times per year. This has never happened at UT. You might think that a book assigned in a popular class might reach this threshold, but UT's experience is that even if a book is assigned as required reading in a 300 student class, the library will by lucky to get even 50 uses of a book. Their most popular book has gotten about a thousand uses.

A major benefit of this model is that all the ebooks on offer serve as a sort of digital book stacks. They can be searched and browsed just as if they were owned by the library. This sort of full text search combined with full text availability is something that even Google Books cannot deliver. (UT is an institutional participant in the Google Books Library Project.) UT manages the list of ebooks to minimize its budget risk. For example, all titles over a certain price are removed from the list. No caviar on the Longhorn ebook buffet!

According to Kari Paulson, President of EBL, the patron-driven model developed out of input from libraries who were advising them on ebook access models. In particular, Alison Sutherland from Curtin University in West Australia and Jens Vigen from the library at CERN both wanted to be able to put records in their catalog but buy them only when a patron requested them. CERN wanted everything available with a pay-per-view option with a purchase after a set number of accesses. The library at CERN serves some of the top physicists in the world, which meant that CERN had no issues trusting that their patrons knew best what they needed to read.

Patron-driven service models are gaining traction thoughout the library market. EBL has used demand-driven acquisition and pay-per-view as its key differentiators and is currently using the DDA model with about 150 libraries around the world. Netlibrary has been doing a form of demand-driven acquisition even longer with its Netlibrary on Demand service. Ingram's MyiLibrary service also has patron-driven acquisition options.

Over the last year, ebrary has been testing patron-driven acquisition in a pilot program. According to Leslie Lees, ebrary VP of Content Development, the ebrary program resulted from a surge of interest from its library customers. While similar to EBL's service, the ebrary version of PDA goes to greater lengths to hide the purchase process from users- there's not even a dialog for the user to confirm that they want to continue their session past past the free period. Participants in the pilot program have been quite happy with the results, particularly when they have done a good job of making the content discoverable. The ebrary service is expected to be ready for general use in time for the 2010 fall semester, and will be integrated with management tools from YBP.

I asked Paulson how EBL managed to convince publishers to go along with the untested model. "Publishers were largely nervous about it in the beginning. We took the approach of getting some of the bigger publishers in first so that the others would follow. All of the publishers we have in our catalogue are participating in Demand-Driven Acquistion. Some of the big ones, especially the textbook publishers, have abstained so far."

Lees told me that in addition to responding to customer needs, ebrary is interested in the "short term loan" component of PDA because it could open the door to new service models that appeal to different publishing segments. Textbook publishers need different models from reference publishers, who need different models from monograph publishers, etc.

Interestingly, one company that hasn't dived into patron-driven acquisition model is public-library market-leader Overdrive; very few public libraries have ventured into all-you-can-eat ebook buffets. Perhaps this reflects their funding situation or perhaps a  reluctance of librarians and publishers to trust public library patrons with ebook acquisition decisions. I see no reason that limited patron driven programs, such as ones targetting young-adult literature, couldn't succeed and deliver value in public library settings; they should be explored.

In researching this article, I was surprised to realize how profoundly the role of the library is changed by the switch to just-in-time acquisition. eBooks don't go out of print the way print books did, so libraries don't need to plan for future needs in their current acquisitions. Academic libraries weren't in the business of all-you-can-eat buffets, they were in the wine-cellar business, laying down supplies for use 5 and 10 years in the future. No more. Now they're in the business of getting us to eat spinach.

More on patron-driven acquisition:

• E-books and interlibrary loan: an academic centric model for lending, Jens Vigen and Kari Paulson, 30 Oct 2003. Presented at 8th IFLA Interlending and Document Supply International Conference : Breaking Barriers : reaching users in a digital world, Canberra, Australia, 28 - 31 Oct 2003. Report No. CERN-OPEN-2003-050.
  
• "Patron-driven, librarian-approved: a pay-per-view model for e-books" Susan Macicak and Lindsey Schell, Serials: The Journal for the Serials Community 22,(3) Supp. 1, S31-S38. doi:10.1629/22S31
  
• "Beguiled by Bananas" – A Statistical Analysis of Patron-selected vs. Upfront Acquisition (pdf) Jason Price and John McDonald. Presented at 2009 Charleston Conference
  
• MyiLibrary and Patron Driven Acquisition at SIU-Carbondale, Andrea Imre and Jonathan Nabe. Presented at CARLI eBook Symposium in Champaign, IL on March 4, 2009.
  
• "Technology Left Behind – Letting the Patron Drive", Cris Ferguson, Against the Grain 22(2) April 2010, p. 83.
  
• "Off the Shelf: Patron-Driven Acquisition" Sue Polanka, Booklist 105 (9/10) 2009. Polanka's Off The Shelf blog has been covering business models for ebooks in libraries.
  

At the ALA Annual Meeting in Washingtion DC, there will be a panel entitled "Patron-Driven Access for E-Books: Have We Finally Found the Solution? Monday, June 28th, 8:00 – 10:00 am. WCC-143B/C.  I'll be there. Say hello.

If you have links for other resources, please add them in the comments; I also welcome comments from ebook providers that I haven't had the chance to talk to.