[A2k] O'Reilly: "Why Kindle Should Be An Open Book" [or die within 2-3 years if it sticks to autism]

Fri Apr 10 15:24:09 2009

Hi Paul and All,

taking your points in order

(1) In "If O'Reilly is right - and he tends to usually be " I meant
"right" in the sense of "correct", refered to his prediction that the
Kindle would be gone in 2-3 years unless Amazon opted for open
standards. Not to a "[morally] right way of looking at issues".

(2) I never said that authors are myopic. I used the word "myopic" in
reference to Amazon's choice to repeat the DRM/proprietary format
mistakes that lead to other ventures' demises, which O'Reilly lists.

(3) I wrote that authors should stop considering their works as
"babies" that could be harmed. Authors shouldn't be sending their
works into the wild world before they (the works) are strong enough to
face its risks, anymore than parents should send babies into it. When
Susanna Tamarro tried to sue Daniele Luttazzi, alleging that his "Va
dove ti porta il clito" (Go where your clit[oris] takes you) was a
plagiarism of her "Va dove ti porta il cuore" (Go where your heart
takes you), she lost: the literature experts consulted by the court
decreed that Luttazzi's book was parody, not plagiarism. Her "Va dove
ti porta il cuore" not only survived the parody, but thrived. Authors
should only published full-grown books that can weather nastiness.

(4) As to the right to make a personal back-up copy, sure, it is not
only mentioned in the CONTU guidelines, but guaranteed by law. Except
that the law also forbids the diffusion of circumventing programs that
would be needed to make a back-up copy of proprietary Kindle e-books,
and the EULA for the Kindle
<http://www.amazon.com/gp/help/customer/display.html?nodeId=3D200144530>
specifically says:
" Unless specifically indicated otherwise, you may not sell, rent,
lease, distribute, broadcast, sublicense or otherwise assign any
rights to the Digital Content or any portion of it to any third party,
and you may not remove any proprietary notices or labels on the
Digital Content. In addition, you may not, and you will not encourage,
assist or authorize any other person to, bypass, modify, defeat or
circumvent security features that protect the Digital Content. (...)
You may not, and you will not encourage, assist or authorize any other
person to, modify, reverse engineer, decompile or disassemble the
Device or the Software, whether in whole or in part, create any
derivative works from or of the Software, or bypass, modify, defeat or
tamper with or circumvent any of the functions or protections of the
Device or Software or any mechanisms operatively linked to the
Software, including, but not limited to, augmenting or substituting
any digital rights management functionality of the Device or
Software."
And Amazon has been aggressively defending even the DRM that prevents
Kindle buyers from transfering themselves their own documents from
their computer to their Kindle (see Declan McCullagh's "Amazon invokes
DMCA against Kindle e-books from other vendors", CNET, March 13, 09
<http://news.cnet.com/8301-13578_3-10196424-38.html>). So it seems
unlikely that they will allow the diffusion of circumventing software
needed to make open-standard personal back-ups.
Moreover, Amazon itself is being sued over this DRM by Discovery
Channel for patent infringement (see   Peter Glaskowsky's "Discovery
v. Amazon: A lawsuit with legs", CNET, March 18, 09
<http://news.cnet.com/8301-13512_3-10198880-23.html>) so the Kindle's
DRM really seems like a risk factor.

(5) and (6) Very interesting, but do I understand correctly? I.e. does
it mean that the final part. "The Law of of certain jurisdictions do
not allow the disclaimer of implied warranties. If these laws apply to
you, some or all of the above disclaimers, exclusions or limitations
may not apply to you, and you may have additional rights" in the
Disclaimer of Warranties of the Kindle's EULA
<http://www.amazon.com/gp/help/customer/display.html?nodeId=3D200144530>,
means that folks could still sue Amazon for disabling text-to-speech
at the request of authors and publishers, because they bought their
Kindle on the basis of  Bezos advertising this text-to-speech feature
in his presentation of the device?
I.e. does it mean that this advertisement of the text-to-speech
feature counts more, because of UCC, than the first part of the
disclaimer that says: "...Amazon and its suppliers and licensors
disclaim all warranties, (...) including (...), the guarantees of
fitness for a particular purpose..."?

(7) Doesn't copyright law include under fair use the right to make a
personal copy? And if it doesn't, doesn't your point (7) contradict
your point (4): "copyrighted works purchased in a
digital format carry with them the right to make such changes and to
obtain such support as to give the buyers the benefit of the bargain
(e.g. an archival backup copy may be maintained, and changes to a
higher level language necessary for operation on one's own computer
can be had without violating copyright)"?

(8) Unauthorized, often inaccurate, copies were already an issue
Voltaire bitched about, without digitization. No copyright act back
then to protect authors. On the other hand, he was mighty glad the
same Dutch "pirate" printers would publish his works when they were
censored by the French authorities. Now authors have copyright laws to
protext them, haven't they? Can a commercial contract violate a law in
the US? It can't in most countries. But anyway, if authors too fear
the specter of Amazon's control, shouldn't they, as I suggested, shop
around for other online retailing platforms?

Re your conclusion: O'Reilly doesn't mention authors even once in his
article, but he is one, and a publisher too, so he wouldn't be likely
to call authors "greedy" or "overreaching".

And I have never done so, for a similar reason: in the 80's, my
husband chose to leave the quiet waters of academe and opt for the
more exciting life of a freelance author - and at times I've
collaborated with him (*). He drove as hard a bargain as possible with
publishers, particularly about advance payments, but also keeping
adaptation and translation rights. Good thing in the case of "Theatre
of Sleep", the anthology of literary dreams Pan Books had commissioned
us: they sent the press copies too much in advance, so we got
beautiful reviews - one by J. G. Ballard - but when people wanted to
buy it, the bookshops didn't have it yet, so they gave up (some wrote
us insulting letters). Having kept adaptation and translation rights
enabled us to negotiate directly with Garzanti in Italy, and having
asked for a fat advance payment made it possible not to get too
depressed reading the sales reports. He was also good at shopping
around for the publisher who would make the best offer. So I would
never call writers "greedy" or "overreaching".

As to the  "unlikel[iness] that a professional association such as an
Author's Guild fails to understand where it's bread is buttered or
fails to have a long term view in favor of myopia", only time will
tell, of course. But the music industry doesn't seem to have fared
that well through their aggressive, pro-DRM stance.
The Actors' Guild example you give is quite different: they have
successfully and rightly fought for their legal rights. Same with UMG
deal with Google about  Vevo Anne-Catherine Lorrain informed us about
in another message to this list today. Not so with the Authors'
Guild's claim that text-to-speech creates a separate work on which
separate rights should be paid, or which would threaten the sales of
real audio books.

Best

Claude Almansi

(*) Guido died in 2001, so I can't tell for sure what he would have
thought of the Kindle business. However, my educated guess, based on
25 years of common life and often common work, is that he would have
thoroughly disliked its proprietariness - and said so in more vivid
terms.

On Fri, Apr 10, 2009 at 5:01 PM, Paul Lehto <lehto.paul@gmail.com> wrote:
> While this post does add "profitably" to the discussion the important
> emphasis on the problems of proprietary formats in the digital realm,
> it's strength is weakened by a couple of erroneous
> assumptions/statements/premises. =C2=A0Namely:
>
> (1) =C2=A0That there is a "right" way to look at the issue, perhaps point=
ed
> to by Tim O'Reilly, when in fact there are multiple objections that
> are valid.
>
> (2) That authors are "myopic" and only looking at a 2-3 year time
> frame, when in fact any author claiming a copyright is looking at an
> approximately seventy years after their own personal death time frame,
> whereafter the copyrighted work then becomes public domain (as do all
> forms of intellectual property, with the notable exception of trade
> secrets, after varying time frames depending on the IP form involved
> and the particular facts of the case.)
>
> (3) That authors should stop caring/worrying about their "babies." =C2=A0=
If
> and when authors do that, they will stop writing.
>
> (4) If "peeved" buyers would look to copyright law and for example the
> CONTU guidelines, they'd find that copyrighted works purchased in a
> digital format carry with them the right to make such changes and to
> obtain such support as to give the buyers the benefit of the bargain
> (e.g. an archival backup copy may be maintained, and changes to a
> higher level language necessary for operation on one's own computer
> can be had without violating copyright)
>
> (5) The CONTU guidelines, generally considered authoritative, also
> point out that copyright and contract, specifically in the digital
> media realm, are not inconsistent and in fact exist simultaneously.
>
> (6) Based on the interaction of contract (licensing) law and copyright
> law, it would therefore appear (without any review on my part, but it
> would seem difficult for Amazon to avoid liability based on my 12
> years in consumer protection law) that if Amazon advertised, and
> therefore warranted, a text to speech capability, because express
> warranties prevail over disclaimers of any implied warranties under
> the UCC (it would otherwise be fraud to say one thing in a conspicuous
> way and then take that same thing away in the fine print) consumers
> have a cause of action against Amazon for breach of contract/breach of
> warranty. =C2=A0Things like advertising or signs in an auto dealership ar=
e
> express warranties that inhere in the contract and override any
> contrary provisions, provided the express warranty is proved, which
> should be no problem with the text to speech capability because I
> assume it was advertised and marketed as a capability that in fact
> urged buyers to purchase. =C2=A0This would certainly apply to any "turnin=
g
> off" of the bargained for capability, but it is a closer question if
> the issue is the investment in the Kindle reader in reliance upon
> future books being broadly available in text to speech format, but
> here again an express warranty, if made, would do the trick, and
> reasonable reliance May do the trick.
>
> (7) The contractual dimension or layer added on top of copyright law
> is part of the proprietary problem as well (even though above it may
> benefit pre-existing Kindle purchasers). =C2=A0Most things purchased in
> digital format will be subject to both copyright and contract, and
> those contracts both extend and restrict (as the case may be) the
> rights of amazon and purchasers, respectively, relative to what they
> would be if the purchase were a normal full purchase of a text book.
> Such purchases would include the right to sell the book (in full, and
> with all rights attached, whatever they are), or even to burn it. (!)
> However, purchasing a print book does NOT include the right to copy
> it, such as by scanning it into a full paper copy or scanning it into
> a digital searchable pdf or database form, because both are a "copy"
> and a violation of the exclusive right of the copyright holder (this
> doesn't mean as a PRACTICAL matter that a suit will result, but the
> point still stands.) =C2=A0The CONTU guidelines state that a searchable
> form of a book, created solely for *scholarly research* purposes (and
> thus within one of the six "fair use" categories) and then destroyed
> at the conclusion of the research would be deemed a fair use. =C2=A0But i=
n
> my example i'm presuming that we are speaking of something like a
> Stephen King novel and not scholarly research, so this limited fair
> use exception wouldn't apply.
>
> (8) In any event, the digitization of works in text creates the
> specter for authors of loss of control of some of their exclusive
> rights, and, more importantly, creates the distinct specter of control
> by Amazon.com (via contract, on top of any assigned copyright, if any)
> of limiting things from ever falling into the public domain, as
> copyrights and patents are all supposed to do after their time limited
> monopoly periods expire.
>
> One is of course free not to agree with the perspective of authors,
> but to suggest that they are incompetent in protecting their own
> interests, to the extent anybody is suggesting that, is quite
> unlikely. =C2=A0Potentially, terms like "greedy" or "overreaching" and su=
ch
> could apply, but it's quite unlikely that a professional association
> such as an Author's Guild fails to understand where it's bread is
> buttered or fails to have a long term view in favor of myopia. =C2=A0The
> contrary is closer to the truth: =C2=A0Look at the Actor's guild, whose
> primary battle, or one of them, is "residuals" based on electronic
> sales of various sorts that occur many years after the movie is made.
>
> Paul Lehto, J.D.
>
> On 4/10/09, Claude Almansi <claude.almansi@gmail.com> wrote:
>> Hi All,
>>
>> Discussions =C2=A0on this list about the Kindle have mainly concentrated=
 on
>> the "disablability" of its text-to-speech function by authors and
>> publishers. But there already have been references to the root of this
>> problem, namely the proprietary format of the Kindle e-books and their
>> being controlled by DRM (being gathered under
>> <http://www.diigo.com/user/calmansi/kindleDRM>)
>>
>> Tim O'Reilly, in "Why Kindle Should Be An Open Book" (
>> <http://www.forbes.com/2009/02/22/kindle-oreilly-ebooks-technology-break=
throughs_oreilly.html>,
>> also deals with the proprietary, DRM'd, unsharable, untransferable
>> nature of the Kindle and its e-books. But on the basis of precedent
>> failures of proprietary, closed offers going back to 1994, he goes
>> further, predicting =C2=A0that "[u]nless Amazon embraces open e-book
>> standards like epub <http://www.openebook.org/>, which allow readers
>> to read books on a variety of devices, the Kindle will be gone within
>> two or three year".
>>
>> If O'Reilly is right - and he tends to usually be - this means that in
>> 2-3 years, if Amazon insists on maintaining the present autism of the
>> Kindle, Kindle authors and users - whether reading-disabled or
>> non-reading-disabled - =C2=A0will probably reconciled in having been had=
 by
>> Amazon folks, who in the mean time will have made heaps of money
>> anyway. Sure, authors will have made some too, but they will have to
>> deal with very peeved readers who will find the books they thought
>> they had "bought" in a no-longer supported proprietary format, on a
>> no-longer supported device.
>>
>> Unless, that is, =C2=A0if authors prove capable of looking a bit further
>> than 2-3 years, and stop obsessing about unfounded allegations that
>> text-to-speech creates a derivative that would deprive them of monies
>> and harm their "babies", and turn their energies to pressurizing
>> Amazon to follow O'Reilly's advice instead. If that should fail, they
>> would be wiser to look for less myopic e-retailing platforms.
>>
>> On the other hand, considering the risk of a Google Books / Amazon
>> duopoly (1), maybe =C2=A0the croaking of the Kindle in two years time
>> wouldn't be such a bad thing, in spite of the collateral damages to
>> Kindle authors and buyers.
>>
>> Best
>>
>> Claude
>>
>> (1) By the way, did someone record yesterday's KEI brown bag about the
>> Google settlement?
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>
>
> --
> Paul R Lehto, J.D.
> P.O. Box #1
> Ishpeming, MI =C2=A049849
> lehto.paul@gmail.com
> 906-204-2333
> 309-413-6541 fax
>

--
Claude Almansi