Another World (or Out of This World, for my fellow Americans) was a brilliant, haunting game. I can’t tell you how happy it makes me that modern game developers are adding their own twists to its ideas. Limbo, which follows a young boy through a smoking black-and-white landscape of giant spiders, sharp spinning objects, and brain slugs, is an especially worthy tribute. The controls are precise; the graphics and sound perfectly integrated to create a mood of loss and dread. The game works through the implications of its mechanics methodically: gaming elements, like the aforementioned giant spiders, or the seemingly omnipresent bear traps, appear often enough that you build on your knowledge of how they work, but not so often that the puzzles become repetitive. (It’s very much like Braid in that respect.)

Even though the puzzles can be tricky and the timing unforgiving, the game is always fair: you never need to start running before you see the large thing that will kill you if you don’t. Also, as in Another World, you frequently go through a adventure only to circle back to someplace you’ve already been—invariably, something has changed in the interim, something that opens up a new possibility. I was also quite impressed with the balance between linear and lateral thinking. Whenever I got stuck, it was because I was making an unwarranted assumption about how my surroundings worked, an assumption that was clearly contradicted by something I already knew about how, say, swinging pipes worked, but was temporarily forgetting.

The Danes who made this game should be quite proud of themselves. Dare I say that the game itself strikes me as quite Danish, perhaps in a slightly Lars van Trier-esque way?

Although the Intruder gave the Rep an incorrect response to the security question, the Rep nonetheless proceeded with processing the Intruder’s request to change Baidu’s email address;

When the Intruder sent the Rep a bogus security code, the Rep did not notice that it was the wrong code, apparently because the Rep did not even bother to check it against the original security code;

When the Intruder gave “antiwahabi2008@gmail.com” as the proposed new email address, the Rep failed to question the legitimacy of the email address, which contained an unusual and unlikely user name and the domain name of a Baidu competitor instead of the Baidu domain name; and

Register then provided the Intruder with Baidu’s user name, enabling the Intruder to change the password and hack into Baidu’s account to re-route traffic to the wrong web site.

Yep. If proven, that sounds like gross negligence to me.

Also of note: this opinion was issued by Denny Chin, United States Circuit Judge, sitting by designation.

UPDATE: Via ResourceShelf, the official Google statement:

Google engineering director Dan Clancy is taking responsibility for YouTube engineering. In the coming months, he will continue to be involved in key technology and business issues for Google Books. Engineering director James Crawford will continue to oversee engineering for Google Editions, the Google Books Library Project and the Google Books Partner Program.

UPDATE: More from Ha’aretz.

One winning project, called “Reframing the Victorians,” seeks to test the anecdotal yet venerated thesis that well-heeled Britons living in the middle third of the 19th century were especially optimistic — a view advanced by the scholar Walter Houghton in an influential 1957 book, The Victorian Frame of Mind. Houghton had based his thesis on an observation of the recurrence of words such as “light,” “sunlight,” and “hope.” But his sample was limited by his ability to catalog these sunny allusions. Google’s robots, which will be able to cover a much broader range of authors in much less time, will be able to explore the hypothesis more thoroughly, say Dan Cohen and Fred Gibbs, the George Mason University professors who won the grant.

Cohen and Gibbs plan to test another anecdotal thesis — that the Victorian era marked a decline in religiosity in the United Kingdom — by writing a program that tracks references to Biblical themes and passages in Victorian literature at a scale that would be impossible for even the most patient human scholars to achieve.

“Because this Google research program can provide word frequencies by year and country, we can finally and truly test these and other fundamental claims that have been at the heart of Victorian studies for generations,” the researchers wrote in their proposal.

My sense is that this absence improves the settlement’s prospects. It signals (even if only subliminally) that the class action sharks don’t think Google is a juicy enough target to be worth fighting for a piece of it. And that, in turn, could undermine objectors’ arguments that the settlement seriously undervalues copyright owners’ present claims against Google.

As always, comments more than welcome.

Some of this is old(ish) hat. Open Library has already been helping readers find physical copies at libraries near them, via redirection to WorldCat’s directories. Overdrive already helps local libraries acquire the licenses and technology to “lend” e-books with the permission of the copyright holders. And the Internet Archive itself has been providing free downloads of scanned public-domain books for years.

The new twist is that, for the first time, the Internet Archive will apply the “lending” treatment to at least some books that are still in copyright. Here’s the WSJ’s summary:

And in a first, participants including the Boston Public Library and the Marine Biological Laboratory will also contribute scans of a few hundred older books that are still in copyright, but no longer sold commercially. …

The Internet Archive’s scanning effort hopes to extend digital libraries far beyond the sorts of contemporary e-books sold by Overdrive. The San Francisco-based library has been digitizing older books using 20 scanning centers around the world. Until now, those scans were mostly used to extend access to public domain works, or to give digital access to in-copyright books to the visually impaired.

“We’re trying to build an integrated digital lending library of anything that is available anywhere, where you can go and find not just information about books, but also find the books themselves and borrow them,” said Brewster Kahle, the founder and digital librarian of the Internet Archive.

With its latest project, the organization is making inroads into the idea of loaning in-copyright books to the masses. Only one person at a time will be allowed to check out a digital copy of an in-copyright book for two weeks. While on loan, the physical copy of the book won’t be loaned, due to copyright restrictions. …

Mr. Kahle said, “We’re just trying to do what libraries have always done.”

Having to receive prior permission from a copyright owner in order to scan a book is onerous, said Mr. Blake, of the Boston Library. “If you own a physical copy of something, you should be able to loan it out. We don’t think we’re going to be disturbing the market value of these items.”

This is an interesting development. The Internet Archive has been close-lipped about the precise legal basis for what they’re doing. At some of these in-copyright books are actually being loaned with permission, like Stewart Brand’s The Media Lab. Perhaps that’s the case with all 187, although the comments in the WSJ article would seem to suggest not. The Archive could be making a pragmatic risk analysis on a book-by-book basis, including only books for which it believes the chance of ever actually being sued is negligible, and thinks it can keep the number of mistakes small enough to avoid serious financial danger.

Or, most intriguingly, perhaps the Archive believes it could win a copyright lawsuit. First sale probably doesn’t work on existing precedents, since each electronic copy on a user’s computer counts as a new “copy” for copyright purposes. Neither do the library exceptions, which are narrow and quite technical. This new lending program is certainly consistent with the spirit of both provisions, and there’s a powerful argument that in a digital age, they ought to be amended to explicitly allow this kind of lending. But as written, they probably don’t authorize digital lending.

This leads me to think that the most natural argument would be fair use. The argument here would likely center on the Archive’s nonprofit purpose, the negligible harm to the market for some long-out-of-print books (quite possibly including some orphan works), and the nearby public policies of first sale and library exceptions. The natural counter-argument, however, is that distributing complete copies of books for readers to consume is so close to the core of copyright’s rights and goals that fair use simply cannot stretch that fair. These are non-transformative, substitutive, complete copies of expressive works—so while the Archive would have an argument, the fair use factors arguably tip 4-0 against it. Should it win, it would be a revolution in fair use caselaw. A good revolution, for some, but a revolution nonetheless.

I added a “GBS” tag to the title because the Archive’s actions have implications, both intellectual and practical, for the pending Google Books settlement. For one, should the Archive prove able (legally or in practice) to lend out these books, that would be a significant step in the orphan works debate—a demonstration that there’s more wiggle room under the Copyright Act than many have thought. For another, this confirms the Archive’s role as a kind of Google competitor. A non-profit one, to be sure—something that could place them on different litigation footing in a variety of ways—but still, the new lending program means that there are now two entities trying to make some kind of a play in the digital distribution of in-copyright books without individual permission from the copyright owner.

Ironically, the Archive’s gambit could help Google gain settlement approval. It was the Archive’s lawyer who made the strongest argument at the fairness hearing that the settlement’s core problem is that it works on an opt-out basis. I wouldn’t be shocked if Google brought up the Archive’s book-lending program at some point as a way of trying to discredit that argument. Also, by scanning books and distributing complete copies of them to the public, the Archive makes more credible the plaintiffs’ arguments that the Authors Guild case has always been about the complete books, not just indexing and snippets—which could undercut the objection that the settlement authorizes conduct not at issue in the underlying lawsuit.

As always, Gary Price at Resource Shelf has plenty of links with further details.

Creative Commons, Public Knowledge, Electronic Frontier Foundation and technology companies with deep pockets are mobilizing to promote “Copyleft” in order to undermine our “Copyright.” They say they are advocates of consumer rights, but the truth is these groups simply do not want to pay for the use of our music. Their mission is to spread the word that our music should be free.

The mentions of PK and the EFF come as no surprise. These groups have been arguing that copyright has become unbalanced and should be more limited (whether legislatively or judicially). “Music should be free” is an unfair distortion of their position, but it’s easy to see why some songwriters and their professional associations might feel threatened by any suggestion that copyright goes too far, rather than not far enough. But Creative Commons? An organization that promotes voluntary licensing within the existing framework of copyright? What’s it doing on ASCAP’s hit list?

Part of the answer, I suggested last year in The Ethical Visions of Copyright Law, is that Creative Commons actually occupies a rhetorical ambiguous place in the debates over copyright law and policy. Here’s the key section, at pages 2034-35:

The heart of the issue, then, is that we can read “sharing” either as being allied with the default ethical vision or as allied with the free-as-in-freedom critique of that vision. The default ethical vision seizes on sharing’s generosity, its praise of voluntary engagement, and its refusal to condemn. The critique, on the other hand, points to sharing’s nonmonetary nature and its implicit rebuke of nonsharers. Both readings represent plausible, consistent extensions of sharing’s logic.

This fact has important consequences. It explains some of the (otherwise surprising) unease around the Creative Commons project and why people have criticized it from both sides. We saw above how some critics believe it lacks an agenda and needs one, but there are also people who see in it a hidden agenda for abolishing copyright. These two critiques can’t both be right. They can, however, both sound plausible—because Creative Commons’ “sharing” rhetoric is so ambiguous.

This ambiguity also provides an explanation for some (otherwise puzzling) critiques of Creative Commons that seem to veer over the line into saying that authors who use Creative Commons licenses are doing something wrong. A Billboard article from 2005 quotes an AIDS-stricken musician as saying he wouldn’t have been able to afford his medication if he had used a Creative Commons license: “No one should let artists give up their rights.” This particular critique was factually misinformed,189 but there is an important intuition underlying it.

If Creative Commons is part of a broader critique of the default ethical vision, then it makes a set of ethical claims that authors who write for money and sell their works are behaving unethically. For people who are part of that system—who see themselves as acting ethically when they sell their works—this critique is either incomprehensible, crazy, or profoundly dangerous. Just as the RIAA warns kids that “free” music must be illegal and unethical, there’s a hint of an idea here that authors who choose Creative Commons are betraying other authors and their audiences—they aren’t showing the audience enough respect to give them something worth paying for.

To summarize, there’s a significant ambiguity in Creative Commons’ response to the copyright system. It could be saying (or could be seen to say) that the system is out of balance because authors have exclusive rights they don’t need and don’t want to use. It could also be saying (or could be seen to say) that the system is out of balance because authors have exclusive rights they shouldn’t have and shouldn’t be allowed to use. In either frame, its licensing strategy is a natural response designed to encourage a healthier balance. But the latter frame, let us be clear, is a challenge to the default ethical vision of copyright itself, not merely a critique of authorial behavior made from within that vision.

⁷⁴⁷ See cases cited supra note 747.

For “it is likely that,” read “I would like if it were true that …”

For “has the greatest institutional competence,” read “is currently staffed by people who agree with me.”

For “excluding transaction costs,” read “excluding reality.”

For “including transaction costs,” read “including a fudge factor.”

For “we,” read “I.”

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