J.D. Salinger has persuaded a district court judge to elevate a temporary restraining order to a preliminary injunction in his effort to prevent American audiences from reading 60 Years Later: Coming Through the Rye, which uses an aged Holden Caulfield in a narrative sequel to - or parody of — the iconic original.

I haven’t read the full opinion yet, but the passages excerpted by the New York Times strike me as not only wrong but bizarre.  If I’m interpreting the opinion correctly, the judge ruled that the defendant’s use of the Caulfield character could not be excused as “parody” under copyright’s fair use doctrine because Catcher in the Rye is a parody of itself.  The argument seems to go something like this:  Salinger himself has occupied the field of parodies of Catcher in the Rye; therefore, no further parody is permitted.  (I’m no literary critic, but the view that Salinger was being straight and “parodic” simultaneously is a view of Catcher in the Rye that’s news to me.)  The opinion says this, according to the Times:

In fact, it can be argued that the contrast between Holden’s authentic but critical and rebellious nature and his tendency toward depressive alienation is one of the key themes of Catcher. That many readers and critics have apparently idolized Caulfield for the former, despite — or perhaps because of — the latter, does not change the fact that those elements were already apparent in Catcher.

It is hardly parodic to repeat that same exercise in contrast, just because society and the characters have aged.

This case has a long way to go before a final result and opinion will be rendered, but for the moment, and if this passage is representative, then it seems clear to me that the district judge has badly misinterpreted and misapplied the law.  If fair use permits producing a parody of a copyrighted work (and the Supreme Court says that it does), then the original copyright owner cannot preempt all parodies by parodying his own work in the original work itself.  If Catcher in the Rye is a parody of itself, then the legal question is whether fair use permits a parody of the parody.  As a matter of law, the answer has to be yes; Salinger has no legal right to prevent people from mocking him, or mocking the mockery that the judge says is Holden Caulfield.  And is that what Colting, the author of 60 Years Later, is doing?  Mocking the mockery?  So it seems to me. 

There is one case that seems to hold that mocking the mockery isn’t permitted – the Second Circuit’s Seinfeld Aptitude Test case, which can be reduced to the proposition that a book critiquing a TV show for its lack of content is infringing if the TV show is purposely devoid of content.  But the Second Circuit has backed away from a broad view of that opinion, and it has been roundly criticized by the Seventh Circuit.  I think that Holden Caulfield has more trouble ahead.  At least I hope he does.

Updated:  What she said, especially (agreeing with me) regarding what appears to be an error of law regarding the scope of fair use.  It is interesting to parse the two works (Catcher, and 60 Years Later) in their respective literary terms, but in the context of a fair use argument, I think that too much literary analysis hurts rather than helps the defendant. Pam Samuelson is the latest to argue, correctly I think, that fair use is best viewed in more categorical terms. Is 60 Years Later reasonably viewed as a critique of Catcher in the Rye, whatever its merits as criticism (or as literature)?  My answer is “sure,” based on what I’ve read about the work, even if many people would argue that the critique is simplistic, or foolish, or badly executed in some other way.

Updated again:  Here is a link to the full opinion, which I’ve now read.  The full text changes some of the flavor of my points above, but not the conclusion.  The parody/satire distinction is badly over-determined, in the opinion’s framing (so, footnote 3 may be factually accurate but legally irrelevant), either because the court read Campbell to limit the meaning of “tranformative use” to parody alone, or because the court read the discussion of parody in Campbell in a numbingly narrow way, or both.  (I mean “numbingly” in a nearly literal sense.)  

I’ll stipulate that scholars have noted before that Catcher in the Rye includes “internal” criticism of Holden Caulfield, and I’ll stipulate that 60 Years Later repeats many of the themes of that criticism.  Has 60 Years Later repeated that “internal” criticism verbatim or nearly so, thus appropriating “more than is needed” to make a legitimate critical point about the original?  The court says “yes” but rests its conclusion not on excessive copying of clearly copyrighted expression but instead on an amalgam of “similar and sometimes nearly identical supporting characters, settings, tone, and plot devices to create a narrative that largely mirrors that of Salinger” (p. 26).  In total, my conclusion in unchanged.  The court has assigned Salinger an exclusive right in criticism of Holden Caulfield, based on Salinger’s own criticism of Holden Caulfield; the objection is that 60 Years Later criticizes Holden Caulfield in the same way that Holden Caulfield had been criticized by his creator, that is, in much (but hardly entirely) the same context.   Because of the court’s crabbed reading of Campbell, its analysis in couched needlessly in the “parody” framework that the Supreme Court discussed there.  But now I’m more persuaded than ever not only that the opinion is wrong on fair use grounds, I’m also starting to suspect that it could have been argued, and decided in favor of the defendant, on idea/expression grounds.

No Tags

[T]he American Psychiatric Association . . . has generated untold amounts of publicity and incredulity . . . by debating at its convention whether bitterness should become a bona fide mental disorder. Bitterness is “so common and so deeply destructive,” writes Shari Roan at the Los Angeles Times, “that some psychiatrists are urging it be identified as a mental illness under the name post-traumatic embitterment disorder.” “The disorder is modeled after post-traumatic stress disorder,” she continues, “because it too is a response to a trauma that endures. People with PTSD are left fearful and anxious. Embittered people are left seething for revenge.”

Now I grant that there’s a lot of anger and bitterness out there. How much of it should be attributed to the last Republican administration? The question straddles psychology and politics, I concede, but in the eyes of many Americans that administration managed in eight years to bring a largely healthy economy to its knees. . . . Heaven knows, there are reasons enough to be bitter about the untold number of opportunities squandered, the problems that have escalated in their place, and the crises now with us that were once entirely avoidable.

But when justified anger at such incompetence is discussed as a sign of mental illness, it is borderline insulting, especially because half the reason for the discussion is to ensure that drug companies—anxious to prod their faltering revenues—can promise relief from the alleged disorder with yet more pharmaceuticals.

Drew Westen’s and Stephen Duncombe’s work on the intersection of politics and psychology has long interested me, but it mainly treats emotions instrumentally, as aspects of personality that must be addressed if a given policy is to be accepted. Lane treats bitterness as a valid datum, disclosing objectively bad conditions in the world. Perhaps Barack Obama would have done well to insist that his characterization of working class Pennsylvanians as “bitter” was more a compliment to their capacity to see and judge the truth of their situation, rather than a jibe at their mental hygiene. Unfortunately, a press largely devoted to “infotainment” is not the best medium for such a message. Nor is the FDA as presently constituted capable of taking into account the social implications of the conditions it treats as diseases.

No Tags

Crawford may oversell his point just a bit, but there is something to what he says (and what Ruskin and Pirsig, among others, said before him).  What’s the IP angle?

The “piracy” problem, among other problems on the copyright scene today, represents (among many other things) the inability of music lovers and consumers to see or hear the craft of the artists represented in the recordings (films, computer programs) being uploaded and downloaded.  The commodification of popular music over the last 100 years — ever since Sousa complained that musical recordings would eviscerate traditions of family singing — is, in this sense, nothing more than the complete separation of the musical audience from the craftworkers who make the music.  The closer the connection, however, the tighter the ethical bond that supports and justifies the obligation to pay — money, respect, or both — the creator.  As that connection gets more and more attentuated, that ethical bond frays - and snaps, as it now has.

That is not to say that there isn’t craft in the production of contemporary music; far from it (this is where Crawford falls short — the skilled labor, craft, that supports certain kinds of “knowledge work”).  Rob Merges has been writing recently about the structural role of copyright law in giving priority of economic place to creative professionals, whose output is and should be valued more highly by society, at the margins, than the output of creative amateurs.  Merges and Crawford are using the same conceptual vocabulary, even if they aren’t speaking the same language, and proponents of “user-generated creativity (or “content”)” often mine the same vein, even if they see the output differently.  “Creative professional” may be a misleading category; in some fields, it substitutes an (absent) ethics of the organization for Crawford’s ethics of skilled labor.  It’s the skill, or the craft, that copyright might fairly favor.  Some people look at “amateur” creativity, especially in online “remixing” contexts, and see emerging discipline; some people see that discipline only in established practices supported by traditional training.  To the latter, “remixing” is little more than throwing spaghetti at the wall to see what sticks.

Crawford’s work has hit a nerve, from what I can tell, because it re-captures something that just won’t go away (motorcycle maintenance, perhaps, but I think that there is more), no matter how much economic modelers want to speak only of incentive, reward, and efficiency.  Going forward, if “remixing” is to earn a safe foothold in the copyright system, one of the challenges for its proponents is developing and harnessing an as-yet-undeveloped vocabulary of craft production for what is currently celebrated in some quarters for its “undisciplined” (in several senses of that word) appeal.

No Tags

computer vendors storing the confidential, electronic data of others will be able to fully analyze data on their clients’ behalf without expensive interaction with the client, and without seeing any of the private data. With Gentry’s technique, the analysis of encrypted information can yield the same detailed results as if the original data was fully visible to all.

It all sounds wonderful. One could have encrypted data and let others data mine while maintaining anonymity or privacy. Yet, something seemed odd to me. So I did what lawyers do, I called someone who knew more about computer science and asked for some help. That person explained that yes this could mean one could query an encrypted database without decrypting the data. The example to consider is a database of book purchases. One could ask how many people bought both book A and book B and see that result without ever seeing what a specific person purchased. Great, right? Not so fast.

As this person reminded me, with other sources of information one can figure out what a specific person did. That reminded me of the AOL debacle. With a little work, people were able to figure out who the anonymous subjects were.

All of which highlights that privacy is not binary. The cluster of information and the ability to analyze it seems often, if not always, to lead to problems about the use of information. So if this breakthrough allows a company or the government to claim that we should remain calm and all is well, we may want to remain clam but show how all may not be well. A few regulations about the use of the data even if supposedly anonymous, might allow the beneficial aspects of the solution to thrive while limiting the harms that can occur.

Image: WikiCommons
By: Gwenda; License: Public Domain
(My apologies to CS folks if the image does not match the breakthrough’s area of encryption)

No Tags

Now, if only all of copyright becomes perceived of as a tax….

No Tags

This is the kind of door-to-door, all-encompassing escort service that we adults have contrived to provide for our children. We schedule their encounters for them, driving them to and from one another’s houses so they never get a chance to discover the unexplored lands between. If they are lucky, we send them out to play in the backyard, where they can be safely fenced in and even, in extreme cases, monitored with security cameras. When my family and I moved onto our street in Berkeley, the family next door included a nine-year-old girl; in the house two doors down the other way, there was a nine-year-old boy, her exact contemporary and, like her, a lifelong resident of the street. They had never met.

The sandlots and creek beds, the alleys and woodlands have been aban- doned in favor of a system of reservations—Chuck E. Cheese, the Jungle, the Discovery Zone: jolly internment centers mapped and planned by adults with no blank spots aside from doors marked staff only. When children roller-skate or ride their bikes, they go forth armored as for battle, and their parents typically stand nearby.

There are reasons for all of this. The helmeting and monitoring, the corralling of children into certified zones of safety, is in part the product of the Consumer Reports mentality, the generally increased consciousness, in America, of safety and danger. To this one might add the growing demands of insurance actuarials and the national pastime of torts. But the primary reason for this curtailing of adventure, this closing off of Wilderness, is the increased anxiety we all feel over the abduction of children by strangers; we fear the wolves in the Wilderness. This is not a rational fear; in 1999, for example, according to the Justice Department, the number of abductions by strangers in the United States was 115. Such crimes have always occurred at about the same rate; being a child is exactly no more and no less dangerous than it ever was. What has changed is that the horror is so much better known. At times it seems as if parents are being deliberately encouraged to fear for their children’s lives, though only a cynic would suggest there was money to be made in doing so.

As I read and recognized what Chabon describes, I realized that much of it could be a useful metaphor for similar changes in copyright law and policy over the last 20 or 30 years.  The analogy might resonate more strikingly for those inclined to view works of authorship as the metaphorical “children” of their authors, but the parenting analogy aside, it’s clear that authors and publishers express a great deal of anxiety about what happens when creative works are “out there,” free from monitoring, monetizing, and control — though it’s not clear that the level of risk is greater than it was before, as opposed to being more salient and starkly described.

No Tags

Count me among those who hated the constant buzzing supplied by vuvuzela users, especially when Brazil was playing.  I may not always root for Brazil, but I love the drumming that Brazil supporters supply, and I love to watch the Brazilian players occasionally match the rhythm of their play to the rhythms coming from the stands.

But my opinion doesn’t count for much.  Let’s ask the players.  Did the buzzing bother them?  How about the Americans?

And the deafening blare of the vuvuzelas that some teams at the Confederation Cup have complained about?  The Americans don’t mind them one bit.

“I think we’ve shown a spirit and competitiveness that people love, and that’s infectious for people,” [Landon] Donovan said. “We expect the same for tomorrow night, too, that people will be out there wanting to see us do well, and we thrive off that.”

[From MSN]  Most of the American players, in fact, played tremendously yesterday; at least until the very end of the match, their mental discipline was extraordinary.

That raises the curious possibility that the unusual environmental circumstances — not only the novelty of playing in South Africa, but also the novelty of playing in stadia where the crowd isn’t really hostile but where the crowd’s actions provide what might be called a “sharpened” sense of place — actually helped the Americans, once they got a bit acclimated to what was going on.  It’s probably impossible to separate the vuvuzelas from all of the other distinctive attributes of high-profile games against Brazil and Spain.  But the team seemed to play a bit above itself in the final.  My memory of the USA’s 1994 Independence Day match against Brazil at Stanford is similar:  That day, before more than 80,000 fans –many of whom were Americans dressed in Brazilian yellow, dancing to the drums, happily and loudly supporting both teams –  the USA again played above itself for most of the day, forcing the Brazilians to earn only one goal in a 1-0 defeat.  (USA fans will remember that the team lost something more important that day - Tab Ramos.)

A question worth considering, then, is whether there is a way to identify an “optimal” degree of environmental “richness” in order to produce better/best production, innovation, and/or creativity – in this case, the collective performance of a soccer team.  “Richness” is a mushy, imprecise word; I’m groping toward something that lies between a completely benign environment and a completely and unambiguously hostile.  For the US Men’s National Soccer Team, let’s say that the two ends of the continuum are  any national team venue pre-1994 and Estadio Azteca in Mexico City.  The vuvuzela-powered South African stadia might be a “just right” environmental middle ground.

And to shift gears abruptly and dramatically:  For the modern entertainment industry, we might suppose that the two ends of the continuum are the pre-VCR broadcast-television-broadcast-radio-and-LP era (the 1960s and 1970s) and the Wild West Internet of the late 1990s.  Is it possible that the “governed” Internet that has been emerging over the last 10 years is actually good — net — for innovation and creativity? 

Of course, there are crucial distributional consequences to consider.  Amateur creators might still be like the US Men’s National Team:  performing much, much better than ever — but still losing to traditional global powers.

No Tags

Thet Netflix Prize is a $1 million prize being offered by Netflix for development of a “movie recommendation system” that is 10% better than Netflix’s own Cinematch system as predicting the movie preferences of Netflix subscribers.  [Older story from the NYTimes here.]  From the prize website, here are the rules:

Netflix is all about connecting people to the movies they love. To help customers find those movies, we’ve developed our world-class movie recommendation system: Cinematch^SM. Its job is to predict whether someone will enjoy a movie based on how much they liked or disliked other movies. We use those predictions to make personal movie recommendations based on each customer’s unique tastes. And while Cinematch is doing pretty well, it can always be made better.

Now there are a lot of interesting alternative approaches to how Cinematch works that we haven’t tried. Some are described in the literature, some aren’t. We’re curious whether any of these can beat Cinematch by making better predictions. Because, frankly, if there is a much better approach it could make a big difference to our customers and our business.

So, we thought we’d make a contest out of finding the answer. It’s “easy” really. We provide you with a lot of anonymous rating data, and a prediction accuracy bar that is 10% better than what Cinematch can do on the same training data set. (Accuracy is a measurement of how closely predicted ratings of movies match subsequent actual ratings.) If you develop a system that we judge most beats that bar on the qualifying test set we provide, you get serious money and the bragging rights. But (and you knew there would be a catch, right?) only if you share your method with us and describe to the world how you did it and why it works.

Serious money demands a serious bar. We suspect the 10% improvement is pretty tough, but we also think there is a good chance it can be achieved. It may take months; it might take years. So to keep things interesting, in addition to the Grand Prize, we’re also offering a $50,000 Progress Prize each year the contest runs. It goes to the team whose system we judge shows the most improvement over the previous year’s best accuracy bar on the same qualifying test set. No improvement, no prize. And like the Grand Prize, to win you’ll need to share your method with us and describe it for the world.

A prediction set meeting the 10% threshold was submitted last Friday, which triggers a 30-day period during which other prediction sets are to be submitted for judging.

There are two things worth noting here, though lack of time prevents much elaboration here.  One is the purposive crowd-sourcing of Netflix’s question:  How to improve its business model?  (As I read the rules, competitors agree to a non-exclusive license of their work to Netflix.  I haven’t found a more thorough explanation of what “non-exclusive” means in this context.)  It appears that this is a context in which “the wisdom of crowds” may actually work.  Two is the specific conditions under which “the wisdom of crowds” has operated well.  Not only is “the crowd” oriented toward solving a specific problem, but “the crowd” isn’t really an undifferentiated mass.  It’s a community of individual developers (and teams) that has been in regular and detailed conversation with itself, even during the competition.  Competitors have been sharing details of their work with each other via a “community” forum, maintained by Netflix, and perhaps elsewhere. 

Via Kottke

No Tags

HT: James G.

No Tags

Photographers like Kodachrome for its warm colors and fine grain, which are perfect for shooting portraits. The famous portrait of the Afghan refugee girl with the bright green eyes that graced the cover of National Geographic in 1985 was taken with Kodachrome film by Steve McCurry. But even McCurry has moved onto digital and other still film.

Or in Paul Simon’s words

Kodachrome
They give us those nice bright colors
They give us the greens of summers
Makes you think all the world’s a sunny day, oh yeah
I got a Nikon camera
I love to take a photograph
So mama don’t take my Kodachrome away

Then again even the faithful have moved on.

Imeem snippet:

Kodachrome (Album Version) - BARRY BECKETT

YouTube has at least two Kodachrome/Simon inspired videos here and here.

No Tags