[ NNSquad ] thoughts on copyright in the digital world

[Barry Gold <BarryDGold@ca.rr.com>]

No, this isn't one of the classic "copyright is dead because it's so 
easy to copy" or "the net is killing content producers" posts.  Instead, 
I want to look at how doing things on computers affects some of the 
assumptions we make about "copies".

The basic idea is simple: the owner of a copyright controls the right to
   a) make copies of the work
   b) display the work publicly
   c) create derivative works

But what happens in the digital world?

When you read an e-book, what happens?
  . The book is copied from disk or other "long term" storage to 
short-term computer memory.
  . The book may be copied several more times, internally, in the 
process of decrypting it or otherwise figuring out how to display it.
  . Pages of the book are copied from computer memory to video device 
(often a different kind of memory)

I suspect this one problem is adequately dealt with in the license for 
the e-book, but this approach (that each copy must be governed by a 
license) can quickly become unwieldy.

Examples:

1. A concordance

A concordance is defined by OneLook as "an index of all main words in a 
book along with their immediate contexts".  This is a useful thing to 
do.  It reveals things about the author's style.  It can be used to 
determine whether two books were written by the same person 
(ghostwriting? multiple pseudonyms of one author?).

But... a thoroughgoing concordance contains all the information needed 
to reconstruct the original book.  One famous example is the Dead Sea 
Scrolls.  Access to these scrolls was limited to only a few scholars. 
But in 1991, Martin Abegg "inverted" a concordance to produce a good 
approximation of the 17 documents.

Even so, with paper books it was a difficult job to invert a 
concordance.  Producing one also required a lot of labor, and it was 
typically done only for very famous and important works (sacred texts, 
the works of Shakespeare, etc.)  But a concordance in electronic form 
can be inverted in seconds.  So logically, creating a concordance is 
equivalent to republishing the original work and/or producing a 
derivative work.  And once a book is in electronic form, a concordance 
can be produced in a short time: the actual list of words and contexts 
will take seconds, but additional information is usually added 
(commentaries, topical indexes, etc.) which can require significant work 
(and add significant value to the concordance).

The problem: if the original author controls the right to create a 
concordance, he also restricts many of the activities that have 
traditionally been considered "fair use" -- textual analysis, criticism, 
etc.

This problem arose with a Google project that would provide short 
snippets of a given work around a phrase you might search for.  The 
problem, of course, is that you can easily use such a tool to extract 
the entire book -- search for any phrase that's been publicly quoted, 
then search successively for the phrases that precede and follow that 
phrase.  Repeat until the top is springy and a toothpick inserted comes 
out clean and dry.

   [ Note that Google Books as currently implemented would
     appear to make such total extractions extremely
     difficult or impossible in most or all cases, at least
     in any practical sense.  -- Lauren Weinstein / NNSquad Moderator ]


2. Typefaces (often mis-called "fonts")

In pre-computer publishing, you got a typeface by buying a bunch of 
movable type.  Manufacturing the type was expensive, and the designer of 
a new typeface (e.g., Times New Roman, Baskerville) would get a royalty 
on the selling price.  Of course, once the type was used, there would be 
lots of "copies" (in the form of books, pamphlets, etc.) but nobody 
worried about that -- the designer got his money from the sale of the 
type, and anybody creating significant numbers of copies of _that_ would 
be detected, sued, and shut down (or pay).

But consider a typeface nowadays.  I'm perhaps more aware of this than 
most, because my wife has a software program for word-processing Hebrew. 
This comes, of course, with a "font" (typeface) for the letters that 
make up the Hebrew alphabet.  So the documents she creates are not 
readable on my system, or indeed most other people's systems.

Suppose she wants to write a book which includes some quotations from 
the Hebrew Bible.  She writes it on her Hebrew/English word processor. 
But people can't read that, because it's in a proprietary format.  No 
problem: turn it into a PDF.  But a simple PDF won't be viewable on 
other computers, because those computers don't have the font.  But 
there's an option when creating PDF files to include the font 
information, so that the document can be viewed on any computer.

Oops!  Without even thinking about it, you have created a copy of the 
font.  Or at least, of significant parts of the font -- the way the 
glyphs are formed.  The "boiled down" PDF form might not include some 
types of metadata, e.g., the spacing information and kerning(*) rules.

Still, it seems likely that when you distribute the PDF you are also 
violating the copyright on the font, unless the license for the word 
processor grants the right to copy it into PDF or similar formats.  Does 
it?  I probably read the license when I installed it on her computer 3 
years ago, but I actually have no idea.  And not being a lawyer, I'd 
probably be unsure even if I went and read it right now.


These are just two of the areas where traditional copyright rules don't 
match the realities of computer processing.  I'm sure you can think of 
others.

If we ever _do_ solve the problem of protecting author's rights in a 
world where copying is as simple as dragging an icon into an email or 
document you are writing, we will also need to give some thought to how 
it impacts some of the uses people expect to get out of books and 
software -- and whether we can come up with a less cumbersome way of 
handling it than 40-page long EULAs that nobody reads.(+)

(+) According to GameStation, 88% of users don't even skim the EULAs. 
http://bit.ly/aA10Ne (Bit-Tech)
If I were ruling on one of those EULAs, I would probably find for the 
end user without even examining the text of the EULA.  All too often, 
the EULA is presented in a format that actively _discourages_ reading -- 
e.g., a 1"x3" box with the text in it, and no way to get it into a word 
processing window, print it, etc.  Under the circumstances, I doubt if 
the "meeting of minds" required by contract law can occur.