A Posteriori

When looking to consume music, it is important to act morally. Given the politically charged and complicated subject of music downloads, it is easy to choose the wrong course of action.

Contrary to the predictable knee-jerk interpretations by those at both extreme ends of the music downloading debate, this is neither a lecture on the evils of, nor a rationalized condoning of, what is described as “illegal” file-sharing.

Here are the central planks of my moral position on obtaining music:

1) Boycott Digital Rights Management (DRM):

Paying for music with DRM, which should be called Digital Restrictions management, offers little value over and above paying for bottled air. The selling of content with digital protects flies in the face of the doctrine of first sale. If I pay for a good in a transaction that has been described by the seller as a “sale”, from that that point forward I should obtain total control of the product, aside from giving copies to other people. There should be nothing preventing me from using said product in the way that I choose. Were it be practical to do expect me to do so with a digital product, it should be permitted for me to sell my last copy to a third party, removing all other copies. The act of placing restrictions on my legally obtained copy of song, whether it be from making so many personal copies for personal use, transferring them to the devices of my choice, or using them in other ways I choose, amounts to an egregious violation of my rights as a customer. Furthermore, there appear to be no mechanisms at any of the major music stores that sell DRM’d music to obtain a replacement copy should my song intentionally or unintentionally deactivate itself.

Music rented for a short period of time should obviously have some sort of DRM to enforce the length of the transaction, but the music must be provided with that explicit caveat. So far, services offering music rented as part of a subscription service have done poorly. Also, even rented music should not be trusted, because the rented copy could deactivate itself before the consumer expects it to.

* Music obtained morally is music obtained with no DRM whatsoever.

2) Refuse to pay for or otherwise encourage any record label’s immoral or illegal behaviour:

Recently, Sony was sued as part of a class-action for including a rootkit in their music CDs.

According to Google Define:

Google Define: Rootkit

A rootkit is a program that runs hidden on a victim’s computer that obtains information about a user’s activities and sends them to either the author of the rootkit or a third party.

This rootkit installed itself irrespective of whether the user agreed or declined that End User License Agreement that appeared when that user inserted the CD into their computer. Such as action represents what is in my opinion an act of wanton vandalism on Sony’s paying customers. Furthermore, it was a flagrant violation of those users’ right to privacy. Sony was effectively spying on its users.

Other immoral acts by record companies involve suing people for copyright violations that were either incapable of committing those acts, or too young to be considered criminals.

Such companies don’t deserve the business of honest customers. They should not even get business indirectly though allofmp3.com, which is legal under Russian law and has attempted to send royalty checks to major record labels (who have refused to cash the cheques).

If you object to the practises of a particular record label and refuse to buy their music, then don’t obtain that music at all. If you download a particular song from a company you’ve chosen to boycott (ex: Sony), then you shouldn’t be listening to their music at all (aside from as background noise in shopping malls, etc). Downloading that music sends the wrong message to the record label you’ve deemed immoral. It tells them there’s demand for their music: demand that they could somehow monetize. This could be done either with a copyright infringement lawsuit, or some sort of government-sanctioned internet tax for music sharing.

* Music obtained morally is music that is not obtained (paid or otherwise) from companies that don’t seek to inflict harm upon their customers.

3) Pay a fair price for music that is offered fairly:

There is no moral justification for downloading music that the copyright holder has not agreed not to share freely. Granted, such legally free music exists, and should not be ignored when making arguments about file sharing. There are also works license under a Creative Commons license. Such works become freely available after 14 years, for any works the copyright holder chooses to license under the Creative Commons.

Record labels who sell music morally deserve financial support for their business. Selling music morally involves:

A) No DRM
B) No rootkits
C) No unfair lawsuits
D) No other immoral behaviour against customers or artists
E) Charging a reasonable price for that music

Music sold at a dollar a track is extravagant. Given the proliferation of independent labels and independent music stores:

* emusic.com
* zunior.com
* magnatune.com
* beatport.com
* and many others…

… it makes no sense to pay top dollar (no pun intended) for music. Independent music (with some notable exceptions) is by and large more innovative, creative and artistic than large record label music.

Also, given the large choice of competing entertainment options, from video games to DVDs to YouTube to blogs, large record label music has no business being this overpriced. It’s proposterous that most DVDs (most of which offer special features) continue to be far cheaper than most music CD’s. It’s also preposterous that the very best video games offer months of continuous entertainment, whereas the best music CD’s have far less continuous value.

* Music obtained morally is music obtained with only a reasonable financial sacrifice according only to fair terms (paid or free) set forth by the copyright holder.

4) Support The Artists:

This is the hardest one of all. Music would be nothing without musicians. However, RIAA rhetoric aside, most musicians are exploited by their record labels. Most of the time, the artist assigns his/her/their full copyrights to their record label.

The only internet music store I know of (I hope there are more) that insists on fair payment for their artists is Magnatune:

magnatune.com

It’s the first internet-only record label. According to its FAQ, it offers 50% of album, licensing and merchandising profits go directly to the artist(s) responsible for each album:

http://www.magnatune.com/info/model

* Music obtained morally is music obtained with a view to ensuring the artists are compensated fairly, instead of merely either paying lip service, or believing others’ lip service, to fairly compensating those artists.

The European Union (EU) is holding hearings with the goal of trying to force Apple to “open” its iTunes Digital Rights Management (DRM) scheme to multiple vendors. This would mean that, among other things, songs purchased from the iTunes Music Store (iTMS) would work with competing MP3 players like Microsoft’s Zune, and the iPod would support music downloaded from Microsoft’s Zune music store. Sounds good, right?

http://arstechnica.com/news.ars/post/20070311-eu-com…

Except that the EU’s hypocrisy in the whole Apple DRM affair is staggering. Were I a European citizen, I’d be more than a little irate that my tax dollars were going to fund what is essentially the RIAA’s guerilla warfare against Apple’s media business.

Allow me to explain.

First of all, Apple’s position as the #1 online music retailer with around 80% of the market gives it an enviable position in negotiations with the RIAA. More specifically, it allows Apple to demand licensing terms for downloaded music that are more consumer-friendly. Among these terms are the 99 cents (U.S.) per song pricing, the ability to authorize the content for playing across 5 computers, and the ability to burn analogue music CD’s. The RIAA has had to swallow hard to make these concessions, and the unfavourable negotiations have no doubt left a very bitter taste in their mouths. The RIAA would like nothing better than to jack up music download prices for more popular songs conceivably as high as 2 dollars.

On the other hand, Microsoft’s various “open” and “interoperable” DRM schemes, which effectively force a self-destructing music rental scheme, have failed to resonate with customers. The reason is that the WMA music “rental” scheme amounts to nothing more than a legalized racket that forces consumers to pay a monthly “protection fee” to prevent their music collection from dissappearing. Consumers have not fallen for the scam, and Microsoft’s overt and one-sided complicity with the RIAA has led to its music download business becoming a massive money pit for the company. Microsoft, in a vain attempt to replicate Apple’s iTunes-iPod business model, has yanked the rug out from its former PlaysForSure partners and architected its own DRM/music player lock-in framework with Windows Media Player and the Zune.

This Ars Technica user hit the nail on the head:

http://episteme.arstechnica.com/eve/forums/a/tpc/f/174…

It could be argued that Apple’s dominant position has kept music download prices low. That’s because Apple’s music download business is merely an avenue to more purchases of iPods. iTMS merely breaks even. This means that Apple doesn’t make money off an increase in the download price. However, it stands to lose a lot of customers not willing to pay more than 99 cents a song. This means that it would lose iPod sales.

With the RIAA’s original plan of multiple competing Microsoft-backed WMA DRM download services failing to result in a competitive marketplace, and thus a prime target for negotiations over price and terms, the RIAA has had to rethink its strategy. Apple’s dominant position in the music download and MP3 player business threatens to compromise their control over the music business. Enter the European Union hearings.

The EU consumer affairs department/bureau/office likes to wave the banner of “consumer protection”. This rhetoric serves as a very thin smokescreen for the EU’s true agenda of fortifying the RIAA’s negotiating position against Apple for music distribution.

Steve Jobs, knowing this, called for the RIAA to abolish DRM:

http://www.apple.com/hotnews/thoughtsonmusic/

And my previous blog asserted that Apple was sincere about eliminating DRM:

http://wordwarrior.blogsome.com/2007/02/16/apple-is-against-drm

With the above as a backdrop, there are three big reasons why the EU’s “consumer protection” rhetoric is not to be believed:

1) Two and a half of the four RIAA labels are based in Europe. Apple is an American company whose presence in Europe is much smaller.
2) After Steve Jobs’ letter the EU commissioners did not mention eliminating DRM, and continued to engage in baseless platitudes about Apple “making excuses” and “deflecting the blame”.
3) The EU wants to support the notion of a “cooling off” period, where consumers could “return” music purchases. This is not possible with MP3 downloads. This is only possible with DRM.

Don’t believe the European Union. They’re merely pawns of the RIAA, whose agenda is to squeeze honest music customers out of every last cent, maintain control of the industry, and control how their product is “consumed” well after the sale and effectively destroy the concepts of fair use and the right of first sale.

In case you missed it, Steve Jobs published an open letter last week entitled “Thoughts on Music” where he, among other things, called for an end to DRM by the big record labels:

http://www.apple.com/hotnews/thoughtsonmusic/

The letter was nothing less than Earth-shattering. There has been much praise, but also much criticism. The RIAA deliberately misinterpreted the letter to mean that Apple was offering to license their FairPlay DRM to others (which Jobs did not say at all). Edgar Bronfman Jr. criticised the letter, saying that jobs conclusion was “devoid of logic”, yet refusing to explain how. Anti-DRM usual suspects like emusic and the head of Yahoo! Music praised him.

From the other side (those opposed to DRM), there is much fallacious tripe about how Steve Jobs supposedly lied in his open letter about Apple being opposed to DRM. The Inquirer spewed their vitriol here:

http://www.theinquirer.net/default.aspx?article=37522

and here:

http://www.theinquirer.net/default.aspx?article=37492

There’s also this junk from FreePress Blog:

http://freepressblog.org/2007/02/14/apple-put-up-or-shut-up/

Apple’s critics from the anti-DRM camp can’t seem to get their facts straight. Here are the fallacies, and the rebuttals:

1) Apple benefits from DRM lock-in between iTunes and the iPod.

It seems these “critics” don’t read very well, because Jobs explained in his letter that 3% of music on any given iPod is from iTunes. The rest is ripped from CD’s or downloaded as legitimate (ex emusic) or illegitimate (ie P2P) mp3 download sites/services. Also, there’s a reason that iTunes is far and above all other DRM and non-DRM paid download sites. The interface is far better than any other competing service. No music download site can match the power and simplicity of iTunes.

iTunes would sell more music with the loss of DRM because people like myself who refuse to buy DRM’d music would consider buying from iTunes. What’s more, without DRM, iTunes is still head and shoulders above the other music stores in terms of usability, which means it won’t lose customers.

2) Apple supports DRM because they force DRM on independent label music that is available as non-DRM’d mp3’s elsewhere.

Given the RIAA’s history and M.O., I have no doubt that they forced Apple into including a clause in their contract that requires all iTunes music to be DRM’d, irrespective of whether or not it comes from the RIAA.

And my favourite…

3) Apple survives by locking users into their products. Apple cannot compete or innovate on its own.

This is laughable and patently absurd. Apple has, in less than 10 years, gone from producing a stagnant desktop operating system with 1980’s technology, far behind Microsoft, to producing and selling the world’s most advanced desktop operating system. Even the “mighty” Vista has not caught up to Apple’s latest stable OS X 10.4 Tiger (nevermind 10.5 Leopard) . It sells innovative hardware, including the award-winning iMac, at a great cost-value compared to similarly equipped hardware and software. It produces excellent designer Pro apps, including Aperture and Final Cut Pro. By the time Leopard comes out, it will have a server OS that is fully featured and capable of competing with Microsoft’s Exchange. It has announced the iPhone, a product with a truly unique interface and intelligent mobile software. It came from way behind to dominate the mp3 music player business with the world’s most innovative player, which is tightly integrated into great music software (iTunes), and the most user-friendly music store (iTunes Music Store).

Apple has a vested interest in getting rid of DRM:

A) They’ll sell more music to people opposed to DRM, and thus, more iPods, because their music store and music player will still be, respectively, the best in the market.
B) It will hurt Microsoft, because the billions that company has invested in its DRM technologies (WMA, WMV, Windows Media Player, and the Zune), will completely go to waste.

I have to refute an argument I made in an earlier blog posting:

Digital Rights Management: Content Providers Rigging the Game

My earlier conclusion was false. Digital Rights Management (DRM) is absolutely and totally impractical and unfeasible. It’s also destructive, erratic, chaotic, accident prone, and suffers acutely from the problem of unintended consequences. Even if it’s legislated and architected to strike a balance between user and content provider interests, it will either fail miserably or create destructive side-effects/externalities for third parties. In short, it’s a Pandora’s Box.

The content industry must immediately abandon its unrealistic, delusional, and ultimately self-destructive objective of locking down and protecting every single piece of content ever produced. This campaign is tantamount to forcing every single person in the world to hum “God Save the Queen” on the way to work every morning. It’s unrealistic and will never happen. Given that every single DRM scheme has been cracked, from DVDs to copy-protected CD’s to iTunes Music Store digital tracks, their stated objective is to achieve the impossible. Also, given the fact that, by my estimation, 95%+ of illegally downloaded content would have never been purchased by the downloader if that were the only choice available to them, the investments in developing and implementing DRM are absolutely certain to achieve massively negative returns.

On the other hand, DRM punishes well-meaning, “law-abiding” users the most. The Sony rootkit targeted users who had paid for music CD’s, as opposed to those who illegally downloaded the equivalent MP3’s. Apple’s iTunes DRM prevents its customers from using any other MP3 player except the iPod. Users of non-iTunes legal DRM music file download services are locked into using Windows and Media Player, and non-iPod music players. Users who download illegal MP3’s face no such restrictions.

Insofar as the unintended side-effects of DRM, here is an excellent article from Gloglaw, arguing (quite convincingly) that DRM and security are two mutually exclusive objectives:

http://www.groklaw.net/article.php?story=20060111184253232

Given the absolute and total failure of DRM to protect either the fair use rights of copyright losers or prevent content providers from making less profit than they were earning before, not to mention the unintended and potentially disastrous side effects on third parties, it’s safe to conclude that the exercise of promoting, developing and implementing DRM should be abandoned immediately.

How should we protect content providers’ revenue you ask? Well, perhaps they could start an MP3 download service much like emusic.com, which sells unprotected music from independent, non-RIAA (Recording Industry Association of America) downloads. The affiliated artists and labels don’t seem to have a problem with the lack of digital protection, as long as their customers are paying for their content.

Still, I suppose the content providers would allege that it costs hundreds of millions to make a feature film, and that they need to ensure they’re compensated.

In this vein, I think France was on the right track when that country’s parliament proposed a flat fee for internet users (about 8-12 Euros) that would allow them to download all the content they wanted. Too bad that law didn’t pass. The Register makes a convincing argument for why it should have:

http://www.theregister.co.uk/2006/03/14/france_p2p_plan_fails/

According to The Register, such a fee would have easily compensated the industry for the amount of money it claims to lose due to digital piracy. What’s more, that industry would cease money-losing investments in DRM immediately.

Too bad this world isn’t ruled by common sense.

These days, the copyright debate seems to be framed, mostly by the content provider industry, as a stark choice between two extreme outcomes:

1. Free and unimpeded access to all copyrighted material with zero protection for content providers and artists.
2. Content that is restricted severely and solely according to the rules set by the content providers, with no input from the consumers, with draconian penalties with those accused of copyright infringement.

The debate is further framed under an absolutely fallacious presumption that all content providers and artists wish to completely restrict the copying and distribution of said material. Some artists wish to freely distribute their work without compensation, or license their content under a limited “Creative Commons” arrangement.

In order to “protect” their copyrights, content providers have begun experiment with a variety of Digital Rights Management (DRM) schemes. DRM is a mechanism by which content providers, through either hardware, software, or both, restrict the ways in which digital content (music, movies, digital literature) can by copied through copy protection. It also restricts how digital copies can be used, for how long, and on which devices. There are presently several competing flavours of DRM. Suffice it to say, all of these variations on DRM were established without the consent of the end users in any way shape or form.

In the rush to implement DRM, consumers’ legitimate concerns are not being taken into account. These concerns include the fair use of content for which they’ve paid, including the right to make backup copies of this material, and the ability to transfer said content to portable digital devices, like MP3 players.

A group of consumers (ie copyright users) has finally spoken out in opposition to this seriously flawed and simplistic paradigm, and the way in which DRM is being used to enforce this paradigm:

http://www.theregister.co.uk/2006/01/18/drm_consumer_opposition

In light of the Sony rootkit debacle (in which Sony CD’s were found to have surreptitiously damage users’ Windows computers), it has become painfully obvious that the content providers cannot be trusted to unilaterally impose the rules of the game. Somewhere in this process, some powerful third party must defend the legitimate interests of copyright users (ie consumers).

The only way DRM can be made to be fair is through government regulation. All DRM schemes, by law, would have to conform to a government-defined DRM specification. Among other things, the specification would have to include the following requirements:

1. Support multiple computer operating systems, including (but not necessarily limited to) Windows, Linux, and Mac OS.
2. Support multiple digital devices, including all MP3 players, portable movie players, etc.
3. Allow the consumer to make backup copies of the content.
4. Replacement of any lost or destroyed copies of the content with a free digital copy or a physical copy at minimal cost to the consumer.
5. Full disclosure of the nature of the DRM included with the physical or digital copy of the content.
6. Full warranty against damage done by the DRM mechanism to a user’s equipment, including computers, portable devices, etc.
7. Deposit of a fully open and non-DRM’d digital copy of the content with an appropriate government agency, to be disseminated to the public upon expiration of the content’s copyright.
8. Severe restriction against any included mechanism to allow the content provider to collect data on the consumer’s use of the content or any other content or any other activity on the consumer’s computer.
9. Allow the free and unimpeded distribution of content by those artists or content providers that wish to do so. The DRM mechanism for a copyrighted work should have an “off” switch for content providers.
10. Require that the source code for the DRM program be fully disclosed to the government agency, with a current copy maintained by that agency. This code can be audited at the initiative of the DRM agency to ensure that it’s complient with the rules above.

It’s absolutely senseless to expect content providers, who represent only one side of these transactions, to solely run the system in a way that is fair to the other side, the consumer. it’s time for the government to get involved.

First of all, I want to offer my sincere condolences to all freedom loving Europeans who just had the Orwellian Data Retention Act imposed upon them by the “democratic” European Union government.

While this development is indeed tragic, Europeans are not without recourse. Nonetheless, while a freedom lover’s first instinct to avoid data detection may be to encrypt all their communications, this would not be wise, or prudent, or effective. The use of encryption will raise a red flag to the Ministry of Love, or whatever they’ll call the department responsible for monitoring internet communications. That department will doubtless view the encrypted communication as an attempt to mask criminal activity, and act accordingly. Many countries, including the UK, make refusal to hand one’s encryption keys a jailable offence.

Instead, freedom lovers such as yourselves should employ a markedly different strategy. This strategy would be the exact opposite of that facilitated by encryption. Your goal should not be to reduce the amount of information logged about you. Your goal should be to drastically increase the amount of data logged about you. The more data the system must track the better. A freedom lover should not view the ubiquitousness of junk on the internet as a curse, but as a blessing.

Remember that there is only so much aggregate hard drive space in the world. The key vulnerability in the system is that there is they can’t write infinite logs for your internet habbits. Even if they manage to find enough hard drive space to log all this data, there is a limit to the extend to which they can index useful information in your logs, especially if there’s too much info in those logs for them to isolate the useful, pertinent information that they need in order to successfully blackmail, and thus, control you (the true purpose behind Data Retention).

Therefore, insofar as your recorded internet communications data is concerned, it should be your goal as a freedom lover to strive for a noise to signal ratio as close as possible to 100%. If you’re concerned that the Ministry of Love will frown upon you posting to an anti-war mailing list, then drown out the signal with subscriptions to multiple Gilmore Girls, Britanny Spears and Sponge Bob mailing lists, as well as multiple Canadian Antiques Roadshow and Desperate Housewives discussion forums. If you also subscribe to the Noam Chomsky newsletter and fear reprisals, then mask you anarchist sympathies with frequent automatic refreshes of the Star Wars, 24, and NYPD Blue home pages and latest news pages, as well as allowing each of your 100 alternative webmail addresses to be added to mailing lists of various spam sites, including, but not limited to, Bonzai Buddy, Gator and any site linked from any of the myriad of pop-up ads you see on a daily basis.

Remember that as far as you’re concerned, there isn’t nearly enough s&#^ on the entire internet to mask your true surfing habits. A Gmail account has 2 gigs for your emails. Use it all! Your ISP probably has either unlimited bandwidth or 20 Gb per month. Use it all! (yes, even if it’s unlimited). If your national government does not incur a 300 billion Euro deficit in the first year paying for all the bureaucrats to track, filter and categorize the sheer volume of junk you and your fellow internet users surf, subscribe to, or post, then you’re not doing your job as a freedom-loving patriot.

Fight data retention! Drown out the signal with noise! Overwhelm the infrastructure and government bureaucracy! Power to the people!

The phrase itself is a flagrant lie. “Intellectual property” comprises copyright, patents, trademarks and trade secrets. None of these legal mechanisms involve ownership of said “intellectual property” in any way shape or form.

From Google.com:

Copyright: A copyright is a set of exclusive rights granted by government for a limited time to protect the particular form, way or manner in which an idea or information is expressed.

Patent: A patent is a set of exclusive rights granted by a government to a person for a fixed period of time in exchange for the regulated, public disclosure of certain details of an invention.

Trademark: A word, phrase, symbol, or design, or combination thereof, that identifies and distinguishes the source of the goods or services of one party from those of others.

Trade secrets: A trade secret is a confidential practice, method, process, design, or other information used by a company to compete with other businesses.

Copyrights and patents are rights over the subjects of the copyrights or patents over a limited time. The individual or company in question is granted an exclusive right to reproduce or use said subject over a fixed period of time, after which the rights to these subjects expire and they fall into the public domain. Trademarks do not expire, but at the same time, a trademark could just as easily be a word or phrase commonly used in the English (or any other) language (ex “Office”), therefore, the individual or company can’t claim ownership of that phrase in that language. It’s debatable whether or not trade secrets comprise “property” or if they’re just confidential information. Regardless, even confidential information must be surrendered to society as a whole (as represented by the government) under appropriate circumstances where illegal or immoral behaviour is suspected.

Taking into account the above, the case for the “intellectual property” verbiage is weak at best and totally deceitful at worst.

It is absolute wrong for corporations or individuals to claim ownership of what are mostly temporary rights that are conferred by the government for the purpose of granting certain incentives to encourage innovative behaviour. These mechanisms represent a pact with society, and should not be interpreted by those granted the benefit of such mechanisms, and especially not by society as a whole, as being God-given rights to these corporations or individuals. In order for these “intellectual property” holders to continue to benefit from such mechanisms, it must be understood by all those involved that society itself must benefit from these arrangements, otherwise society as a whole must have the right to revoke or further limit such mechanisms.

Society, culture, innovations, phrases and words, confidential information and especially ideas ultimately belong to society as whole. The debate over “intellectual property” must reflect this fundamental truth.

The substance of each specific “intellectual property” mechanisms is the subject of another blog. However, in order to have an honest debate, we need to have honest verbiage. Let’s stop calling it what it isn’t. It’s time to dump the phrase “intellectual property” and replace it with something more descriptive and open.

It’s a shame that the publishers’ association decided to make such a big deal out of Google scanning the content of public libraries. These numbskulls apparently don’t understand the meaning of fair use, nor do they appreciate the fundamental reason for libraries to exist in the first place.

Libraries exist in order or provide a repository of important knowledge for society as a whole, knowledge that would otherwise be prohibitively expensive for individuals to compile, especially low income individuals. The existence of libraries is fundamental to a free-thinking and well-informed society. Fortunately, such libraries also run contrary to the interests of large publishers, who would obviously make more money if everybody was forced to buy every single book they read. The internet serves the same purpose. As library books get scanned, the internet can become even more of a large electronic library than it already is. People might buy even less books

As for fair use, which is Google’s legal argument, the publishers don’t understand that it is implicit in copyright law that the public at large is allowed to use copyrighted material without permission for the purpose of critique, reference or summarization. This also runs contrary to the publishers’ business model, since it deprives them of the ability to charge people to make brief references to their material. Creating indexable references to these books is Google’s real agenda for scanning these books, and it does constitute fair use. Google’s legal case is rock-solid on this basis, and the publishers’ are wasting their shareholders’ money in filing this lawsuit.

With the law on Google’s side, it’s a shame that they managed to blackmail Yahoo! (with Wall Street’s complicity) into an opt-in system for library book scanning. An opt-in system (in which the publishers send the search engine the list of copyrighted books for which they grant scanning permission) is far less desirable for society as a whole than an opt-out system (in which the publishers send the search engine the list of copyrighted books for which they withdraw scanning permission).

It should not be Yahoo!’s or Google’s job to police and/or filter copyrighted content, nor should these companies or their users (directly or indirectly) have to pay for such content policing and/or filtering. If the publishes can’t get their own respective houses in order insofar as paying their own bloody costs of doing business and doing their own analysis as to what content if theirs is valuable enough to protect, then they don’t deserve to be in business at all. In the real world all kinds of businesses and corporations externalize their costs to all kinds of third parties and society as a whole. That doesn’t make such externalizing morally right, nor should society or other businesses willingly subject themselves to become victims of this externalization. Yahoo! (or their shareholders) chose to allow itself to be victimized in this manner.

I imagine in their fantasy world we would be forced to pay every single time we read either all or a part of their books, or use part of one of their books for reference, critique or summarization. Thankfully, physical libraries where low income people have access to a wealth of society’s knowledge still exist. We should not allow these publishers to take them away.