PG’s Thoughts (such as they are)

Are You Self-Publishing Audio Books?

21 May 2019

From Just Publishing Advice:

It takes total concentration to read a book or an ebook. But with an audio book, a listener can multitask.

This is the key attraction for so many younger readers in particular, as it allows for the consumption of a book while driving, commuting and playing a game on a smartphone, knitting or even while grinding out the hours at work.

The popularity is on the move and according to recent statistics, audiobooks are now a multi-billion dollar industry in the US alone.

. . . .

In another report, it estimates that one in ten readers are now listening to audiobooks.

While the data helps to gain a small insight into the market, it is still easy to draw an assumption that it is the next logical step for self-publishing authors and small press.

Ebook publishing is now the number one form of self-publishing. Many Indie authors then take the next step and publish a paperback version.

. . . .

An audio version offers an opportunity for self-publishing authors to extend their sales potential, and at the same time, diversify revenue streams.

Well, only a little at present as it is really an Amazon Audible and Apple iTunes dominated retail market. However, in the future, this may change.

. . . .

If you live in the US, you are in luck.

Amazon offers production and publishing through Audio Creation Exchange, ACX.

For authors outside of the US, things are not quite so easy.

. . . .

If you live in the US, you are in luck.

Amazon offers production and publishing through Audio Creation Exchange, ACX.

For authors outside of the US, things are not quite so easy.

This is a very common complaint about Amazon and its US-centric approach, which creates so many hurdles for non-US self-publishers.

The following quote is taken from Amazon’s help topic regarding ACX.

At this time, ACX is open only to residents of the United States and United Kingdom who have a US or UK mailing address, and a valid US or UK Taxpayer Identification Number (TIN). For more information on Taxpayer Identification Numbers (TIN), please visit the IRS website. We hope to increase our availability to a more global audience in the future.

If you live in the UK, Amazon can help you, but you will need to have a TIN. If you are already publishing with KDP, you probably have one.

For the rest of the world, well, Amazon, as it so often does, leaves you out of the cold.

. . . .

There are a growing number of small press and independent publishers who offer to produce and publish audio books.

Distribution is most often on Amazon Audible and iTunes.

Do your research and look for publishers who accept submissions or offer a production service using professional narrators and producers.

As with any decision to use a small publisher, be careful, do your background research and don’t rush into signing a contract until you are totally convinced it is a fair arrangement concerning your audio rights.

While some may charge you for the service, it is worth looking for a publisher that offers a revenue split. This is usually 50-50 of net audio royalty earnings.

It might seem a bit steep, but Amazon ACX offers between 20 and 40% net royalties, so 50-50 is not too bad.

Link to the rest at Just Publishing Advice

As with any publishing contract, PG suggests you check out the contract terms carefully before you enter into a publishing agreement for audiobooks.

Speaking generally (and, yes, there are a few exceptions), the traditional publishing industry has fallen into a bad habit (in PG’s persistently humble opinion) of using standard agreements that last longer than any other business contracts with which PG is familiar (and he has seen a lot).

He refers, of course to publishing contracts that continue “for the full term of the copyright.”

Regular visitors to TPV will know that, in the United States, for works created after January 1, 1978, the full term of the copyright is the rest of the author’s life plus 70 years. Due to their participation in The Berne Convention (an international copyright treaty), the copyright laws of many other nations provide for copyright protections of similar durations — the author’s life plus 50 years is common.

PG can’t think of any other types of business agreements involving individuals that last for the life of one of the parties without any obvious exit opportunities. The long period of copyright protection was sold to the US Congress as a great boon to creators. However, under the terms of typical publishing contracts, the chief beneficiaries are corporate publishers.

While it is important for authors to read their publishing agreements thoroughly (Yes, PG knows it’s not fun. He has read far more publishing agreements than you have or ever will and understands what it is like.), if you are looking for a method of performing a quick, preliminary check for provisions that means you will die before your publishing agreement does, search for phrases like:

  • “full term of the copyright”
  • “term”
  • “copyright”
  • “continue”

Those searches may help you immediately locate objectionable provisions that allow you to put the publisher into the reject pile without looking for other nasties. However, if the searches don’t disclose anything, you will most definitely have to read the whole thing. The quoted terms are not magic incantations which must be used. Other language can accomplish the same thing.

Until the advent of ebooks, book publishing contracts used Out of Print clauses to give the author the ability to retrieve rights to his/her book if the publisher wasn’t doing anything with it.

With printed books, even dribs and drabs of sales would eventually deplete the publisher’s stock of physical books. At this point, the publisher would likely consider whether the cost it would pay for another printing of an author’s book was economically justified or not. If the publisher was concerned about ending up with a pile of unsold printed books in its warehouse for a long time, the publisher might decide not to print any more.

Once the publisher’s existing stock was sold, the book was out of print – it was not for sale in any normal trade channels. The author (or the author’s heirs) could then retrieve her/his rights to the book and do something else with them.

Of course, once an electronic file is created, an ebook costs the publisher nothing to offer for sale on Amazon or any other online bookstore with which PG is familiar.

The disk space necessary to store an individual epub or mobi file is essentially free for Amazon and it doesn’t charge anything to maintain the listing almost forever. (There may be a giant digital housecleaning in Seattle at some time in the distant future, but don’t count on it happening during your lifetime.) Print on demand hardcopy books are just another kind of file that’s stored on disk.

So, in 2019 and into the foreseeable future, an infinite number of an author’s ebooks are for sale and not “out of print”.

So, the traditional exit provision for an author – the out of print clause – remains in existence in almost all publishing contracts PG has reviewed, but it provides no opportunity for the author to exercise it to get out of a publishing agreement that has not paid more than $5.00 in annual royalties in over ten years.

 

Public Knowledge Wants to Solve the Misinformation Problem

9 May 2019

From The Illusion of More:

On Tuesday, Meredith Filak Rose of Public Knowledge posted a blog suggesting that a solution to rampant misinformation is to “bring libraries online.” Not surprisingly, she identifies copyright law as the barrier currently preventing access to quality information that could otherwise help solve the problem …

“High-quality, vetted, peer-reviewed secondary sources are, unfortunately, increasingly hard to come by, online or off. Scientific and medical research is frequently locked behind paywalls and in expensive journals; legal documents are stuck in the pay-per-page hell that is the PACER filing system; and digital-only information can be erased, placing it out of public reach for good (absent some industrious archivists).”

Really?  We’re just a few peer-reviewed papers away from addressing the social cancer of misinformation?

. . . .

The funny thing is that Rose does a pretty decent job of summing up how misinformation can be effectively deployed online, but her description could easily be the Public Knowledge Primer for Writing About Copyright Law:

Misinformation exploits this basic fact of human nature — that no one can be an expert in everything — by meeting people where they naturally are, and filling in the gaps in their knowledge with assertions that seem “plausible enough.” Sometimes, these assertions are misleading, false, or flatly self-serving.  In aggregate, these gap-fillers add up to construct a totally alternate reality whose politics, science, law, and history bear only a passing resemblance to our own.

. . . .

Having said all that, Meredith Rose’s article does not say anything categorically false. It is a sincere editorial whose main flaw is that it is sincerely naïve.  “…in the absence of accessible, high-quality, primary source information, it’s next to impossible to convince people that what they’ve been told isn’t true,” she writes.

Yeah. That psychological human frailty is not going to be cured by putting even more information online, regardless of how “good” it may be, or how copyright figures in the equation.  To the contrary, more information is exactly why we’re wandering in a landscape of free-range ignorance in the first place.

. . . .

Speaking as someone schooled in what we might call traditional liberal academia, I believe Rose reiterates a classically liberal, academic fallacy, which assumes that if just enough horses are led to just enough water, then reason based on empirical evidence will prevail over ignorance.  That’s not even true among the smartest horses who choose to drink. Humans tend to make decisions based on emotion more than information, and it is axiomatic that truth is in the eye of the beholder.

But if galloping bullshit is the disease, the catalyst causing it to spread is not copyright law keeping content off the internet, but the nature of the internet platforms themselves.  By democratizing information with a billion soapboxes it was inevitable that this would foster bespoke realities occupied by warrens of subcultures that inoculate themselves against counter-narratives (i.e. facts) with an assortment of talismanic phrases used to dismiss the peer-reviewed scientist, journalist, doctor, et al, as part of a conspiracy who “don’t want us to know the truth.”

Link to the rest at The Illusion of More

While PG didn’t particularly like the tone of the OP, if you’re going to have an open Internet and if you’re going to have freedom of speech, it is all but certain that some people who operate their own blogs, participate in online discussion groups, write for newspapers, appear on television, publish books, have a Twitter account, etc., etc., are going to communicate ideas that either are wrong or seem wrong.

Ever since cave persons of various genders collected around an open fire to drink and talk, some incorrect information was passed from one person to at least one other person, then disseminated from there.

“If Rockie kills a brontosaurus and examines its entrails, he can tell whether it will rain in three days or not.”

Pretty soon, everyone is harassing Rockie to go dinosaur hunting so they could know whether to schedule the prom for next Thursday or not.

From that day until this, regardless of their political persuasion, someone is passing on false information, believing it to be the truth. Someone else is passing on false information for the greater good, knowing it is false. Someone else is creating false information because they have just discovered a great truth which isn’t.

A large majority of Americans regard Adolph Hitler and Nazism as an obvious and indisputable evil. However, this was not always so.

Charles Lindbergh was one of the greatest American heroes of the 1920’s.  He gained even more public stature and enormous public sympathy in 1932, when his 20-month-old son was kidnapped. The most prominent journalist of the period, H. L. Mencken called the kidnapping and trial “the biggest story since the Resurrection.”

Responding to the kidnapping, the United States Congress passed the Federal Kidnapping Act, commonly called the “Lindbergh Law.” In the middle of the Great Depression, rewards equivalent to more than one million dollars in 2018 currency were offered for information leading to the safe return of the child.

A ransom of $50,000 (the equivalent of nearly $1 million today) was demanded for the safe return of the child and was paid. Unfortunately, the Lindbergh baby was killed before he could be found.

Back to the certainty of public opinion, in 1940, the America First Committee was established for the purpose of supporting Adolph Hitler and the Nazis by keeping the United States out of the war in Europe. It quickly gained more than 800,000 members, including a large number of prominent business figures. The pressure of the organization caused President Franklin Roosevelt to pledge that he would keep America out of war.

Lindbergh was greatly admired in Germany and, at the invitation of Hermann Göring, took a high-profile trip to Germany in 1936 where he was treated as a great hero and shown the highly-sophisticated airplanes developed for the German air force. Lindbergh was a high-profile visitor to the 1936 Olympic Games in Berlin, a huge Nazi propaganda exercise.

The visit was a press sensation with daily articles covering Lindbergh’s activities published in The New York Times. On his return, Lindbergh met with President Roosevelt to report on his observations and opinions. Lindbergh would return to Germany on two more occasions prior to the entry into the war by the United States.

Here’s a short video account of the America First movement and Lindbergh’s opposition to war with Germany from The Smithsonian

Circling back to the OP, had the Internet existed in 1936, what would “high-quality, peer-reviewed” articles have said about Germany and America’s best path forward? What would prominent academics, the owners of major media conglomerates and other prominent world leaders, have posted about Hitler and his supporters?

Prior to the outbreak of hostilities with Germany and Japan, the New York Times, Christian Science Monitor, Chicago Tribune, New York Herald Tribune, Philadelphia Evening Bulletin and many more publications reported the great economic progress Hitler-lead Germany was making as it pulled itself out of the Depression and downplayed the extent and nature of the nation’s attacks on the Jews. Indeed, Hitler was providing the West with important benefits by vigorously attacking Bolshevism and imprisoning Communist supporters.

In Britain, The Daily Mail was a strong supporter of Germany. Harold Harmsworth, the first Viscount Rothermere, was the founder of the Daily Mail and owned 14 other papers. His influence was on a par with Lord Beaverbrook’s.

Rothermere was a strong supporter of Mussolini’s version of fascism, “He is the greatest figure of the age,” Rothermere proclaimed in 1928. “Mussolini will probably dominate the history of the 20th century as Napoleon dominated that of the early 19th.”

“[The Nazis] represent the rebirth of Germany as a nation,” Rothermere wrote in the Mail. The election, he correctly prophesied, would come to be seen as “a landmark of this time.”

The Nazis’ “Jew-baiting,” Rothermere warned, was “a stupid survival of medieval prejudice.” Of course, he also added, the Jews had brought the Nazis’ displeasure on themselves, having shown “conspicuous political unwisdom since the war.”

Germany had been “falling under the control of alien elements,” Rothermere argued. There were 20 times as many Jews in government positions than there had been before the war.

“Israelites of international attachments were insinuating themselves into key positions in the German administrative machine,” he noted darkly. “It is from such abuses that Hitler has freed Germany.”

The Jews were not just a problem in Germany. The menace they posed was much more widespread, he felt.

“The Jews are everywhere, controlling everything,” Rothermere wrote in private correspondence.

See The Times of Israel for more.

Back to the “problem” with fake news on the Internet, PG suggests that the online disputes between right and left are a feature, not a bug, in a free society.

An Appeal to Authority (“experts agree” “science says” “academic publications clearly demonstrate”) is a classic logical fallacy.

Whether in the form of “bringing libraries online,” “High-quality, vetted, peer-reviewed secondary sources,” or “keeping content off the internet,” PG is very much a supporter of free and open disputes, arguments as the best way of preserving the rights of all individuals, debunking fallacy and ensuring that no one group can control and limit the spread of information, whether fake news or real news.

The Golden Age of Youtube Is Over

13 April 2019

From The Verge:

The platform was built on the backs of independent creators, but now YouTube is abandoning them for more traditional content.

. . . .

Aanny Philippou is mad.

He’s practically standing on top of his chair as his twin brother and fellow YouTube creator Michael stares on in amusement. Logan Paul, perhaps YouTube’s most notorious character, laughs on the other side of the desk that they’re all sitting around for an episode of his popular podcast Impaulsive. Anyone who’s watched the Philippous’ channel, RackaRacka, won’t be surprised by Danny’s antics. This is how he gets when he’s excited or angry. This time, he’s both.

“It’s not fair what they’re doing to us,” Danny yells. “It’s just not fair.”

Danny, like many other creators, is proclaiming the death of YouTube — or, at least, the YouTube that they grew up with. That YouTube seemed to welcome the wonderfully weird, innovative, and earnest, instead of turning them away in favor of late-night show clips and music videos.

The Philippou twins hover between stunt doubles and actors, with a penchant for the macabre. But YouTube, the platform where they built their audience base, doesn’t seem to want them anymore.

. . . .

The Philippous’ story is part of a long-brewing conflict between how creators view YouTube and how YouTube positions itself to advertisers and press. YouTube relies on creators to differentiate itself from streaming services like Netflix and Hulu, it tells creators it wants to promote their original content, and it hosts conferences dedicated to bettering the creator community. Those same creators often feel abandoned and confused about why their videos are buried in search results, don’t appear on the trending page, or are being quietly demonetized.

At the same time, YouTube’s pitch decks to advertisers increasingly seem to feature videos from household celebrity names, not creative amateurs. And the creators who have found the most success playing into the platform’s algorithms have all demonstrated profound errors in judgment, turning themselves into cultural villains instead of YouTube’s most cherished assets.

. . . .

YouTube was founded on the promise of creating a user-generated video platform, but it was something else that helped the site explode in popularity: piracy.

When Google bought YouTube in 2006 for $1.6 billion, the platform had to clean up its massive piracy problems. It was far too easy to watch anything and everything on YouTube, and movie studios, television conglomerates, and record labels were seething. Under Google, YouTube had to change. So YouTube’s executives focused on lifting up the very content its founders designed the platform with in mind: original videos.

The focus on creator culture defined YouTube culture from its earliest days. The platform was a stage for creators who didn’t quite fit into Hollywood’s restrictions.

. . . .

Between 2008 and 2011, the volume of videos uploaded to YouTube jumped from 10 hours every minute to 72 hours a minute. By 2011, YouTube had generated more than 1 trillion views; people were watching over 3 billion hours of video every month, and creators were earning real money via Google AdSense — a lot of money. Jenna Marbles was making more than six figures by late 2011. (In 2018, a select group of creators working within YouTube’s top-tier advertising platform would make more than $1 million a month.)

By 2012, creators like Kjellberg were leaving school or their jobs to focus on YouTube full-time. He told a Swedish news outlet that he was getting more than 2 million views a month, boasting just over 300,000 subscribers.

. . . .

Between 2011 and 2015, YouTube was a haven for comedians, filmmakers, writers, and performers who were able to make the work they wanted and earn money in the process. It gave birth to an entirely new culture that crossed over into the mainstream: Issa Rae’s Awkward Black Girl series would eventually lead to HBO’s Insecure. Creators like the Rooster Teeth team and Tyler Oakley went on tour to meet fans after generating massive followings online. YouTube had reached mainstream success, but in many ways, it still felt wide open. Anyone could still upload almost anything they wanted without much input from YouTube itself.

. . . .

Behind the scenes, things were changing. YouTube had begun tinkering with its algorithm to increase engagement and experimenting with ways to bring flashier, produced content to the platform to keep up with growing threats like Netflix.

In October 2012, YouTube announced that its algorithm had shifted to prefer videos with longer watch times over higher view counts. “This should benefit your channel if your videos drive more viewing time across YouTube,” the company wrote in a blog post to creators.

This meant viral videos like “David After Dentist” and “Charlie Bit My Finger,” which defined YouTube in its earliest days, weren’t going to be recommended as much as longer videos that kept people glued to the site. In response, the YouTube community began creating videos that were over 10 minutes in length as a way to try to appease the system.

. . . .

In 2011, YouTube invested $100 million into more than 50 “premium” channels from celebrities and news organizations, betting that adding Hollywood talent and authoritative news sources to the platform would drive up advertising revenue and expand YouTube to an even wider audience. It failed less than two years later, with what appeared to be a clear lesson: talent native to YouTube was far more popular than any big names from the outside.

. . . .

Then, suddenly, creators started encountering problems on the platform. In 2016, personalities like Philip DeFranco, comedians like Jesse Ridgway, and dozens of other popular creators started noticing that their videos were being demonetized, a term popularized by the communityto indicate when something had triggered YouTube’s system to remove advertisements from a video, depriving them of revenue. No one was quite sure why, and it prompted complaints about bigger algorithm changes that appeared to be happening.

Kjellberg posted a video detailing how changes had dropped his viewership numbers. He’d been getting 30 percent of his traffic from YouTube’s suggested feed, but after the apparent algorithm update, the number fell to less than 1 percent. Kjellberg jokingly threatened to delete his channel as a result, which was enough to get YouTube to issue a statementdenying that anything had changed. (The denial sidestepped questions of the algorithm specifically, and spoke instead to subscriber counts.)

These perceived, secretive changes instilled creators with a distrust of the platform. It also led to questions about their own self-worth and whether the energy they were spending on creating and editing videos — sometimes north of 80 hours a week — was worth it.

. . . .

YouTube was exerting more control over what users saw and what videos would make money. Once again, the community would adapt. But how it adapted was far more problematic than anyone would have guessed.

. . . .

By the beginning of 2017, YouTube was already battling some of its biggest problems in more than a decade. YouTube’s founders didn’t prepare for the onslaught of disturbing and dangerous content that comes from people being able to anonymously share videos without consequence. Add in a moderation team that couldn’t keep up with the 450 hours of video that were being uploaded every minute, and it was a house of cards waiting to fall.

YouTube had come under fire in Europe and the United States for letting extremists publish terrorism recruitment videos to its platform and for letting ads run on those videos. In response, YouTube outlined the steps it was taking to remove extremist content, and it told advertisers it would be careful about where their ads were placed. It highlighted many creators as a safe option.

But neither YouTube nor Google was prepared for what Felix “PewDiePie” Kjellberg — one of YouTube’s wealthiest independently made creators — would do.

. . . .

In mid-February 2017, The Wall Street Journal discovered an older video from Kjellberg that included him reacting to a sign held up by two kids that said, “Death to all Jews.” The anti-Semitic comment was included in one of his “react” videos about Fiverr, after having pivoted to more of a variety channel instead of focusing just on games.

His video, along with reports of ads appearing on terrorist content, led to advertisers abandoning YouTube. Kjellberg was dropped from Disney’s Maker Studios, he lost his YouTube Red series, Scare PewDiePie, and he was removed from his spot in Google Preferred, the top-tier ad platform for YouTube’s most prominent creators.

“A lot of people loved the video and a lot of people didn’t, and it’s almost like two generations of people arguing if this is okay or not,” Kjellberg said in an 11-minute video about the situation. “I’m sorry for the words that I used, as I know they offended people, and I admit the joke itself went too far.”

The attention Kjellberg brought to YouTube kickstarted the first “adpocalypse,” a term popularized within the creator community that refers to YouTube aggressively demonetizing videos that might be problematic, in an effort to prevent companies from halting their ad spending.

Aggressively demonetizing videos would become YouTube’s go-to move.

. . . .

The January 2017 closure of Vine, a platform for looping six-second videos, left a number of creators and influencers without a platform, and many of those stars moved over to YouTube. David Dobrik, Liza Koshy, Lele Pons, Danny Gonzalez, and, of course, Jake and Logan Paul became instant successes on YouTube — even though many of them had started YouTube channels years before their success on Vine.

YouTube’s biggest front-facing stars began following in the footsteps of over-the-top, “bro” prank culture. (Think: Jackass but more extreme and hosted by attractive 20-somethings.) Logan Paul pretended to be shot and killed in front of young fans; Jake Paul rode dirt bikes into pools; David Dobrik’s friends jumped out of moving cars. The antics were dangerous, but they caught people’s attention.

. . . .

Jake and Logan Paul became the biggest stars of this new wave, performing dangerous stunts, putting shocking footage in their vlogs, and selling merchandise to their young audiences. Although they teetered on the edge of what was acceptable and what wasn’t, they never really crossed the line into creating totally reprehensible content.

. . . .

It wasn’t a sustainable form of entertainment, and it seemed like everyone understood that except for YouTube. The Paul brothers were on their way to burning out; all it would take was one grand mistake. Even critics of the Pauls, like Kjellberg, empathized with their position. Kjellberg, who faced controversy after controversy, spoke about feeling as though right or wrong ceased to exist when trying to keep up with the YouTube machine.

“The problem with being a YouTuber or an online entertainer is that you constantly have to outdo yourself,” Kjellberg said in a 2018 video. “I think a lot of people get swept up in that … that they have to keep outdoing themselves, and I think it’s a good reflection of what happened with Logan Paul. If you make videos every single day, it’s really tough to keep people interested and keep them coming back.”

Still, Logan Paul was small potatoes compared to YouTube’s bigger problems, including disturbing children’s content that had been discovered by The New York Times and more terrorism content surfacing on the site. Who cared about what two brothers from Ohio were doing? The breaking point would be when Logan Paul visited Japan.

. . . .

Logan Paul’s “suicide forest” video irrevocably changed YouTube.

In it, Paul and his friends tour Japan’s Aokigahara forest, where they encountered a man’s body. Based on the video, it appears that he had recently died by suicide. Instead of turning the camera off, Paul walks up to the body. He doesn’t stop there. He zooms in on the man’s hands and pockets. In post-production, Paul blurred the man’s face, but it’s hard to see the video as anything but an egregious gesture of disrespect.

Within hours of posting the video, Paul’s name began trending. Actors like Aaron Paul (no relation), influencers like Chrissy Teigen, and prominent YouTubers called out Paul for his atrocious behavior.

YouTube reacted with a familiar strategy: it imposed heavy restrictions on its Partner Program (which recognizes creators who can earn ad revenue on their videos), sharply limiting the number of videos that were monetized with ads. In a January 2018 blog post announcing the changes, Robert Kyncl, YouTube’s head of business, said the move would “allow us to significantly improve our ability to identify creators who contribute positively to the community,” adding that “these higher standards will also help us prevent potentially inappropriate videos from monetizing which can hurt revenue for everyone.”

. . . .

The only people who didn’t receive blame were YouTube executives themselves — something that commentators like Philip DeFranco took issue with after the controversy first occurred. “We’re talking about the biggest creator on YouTube posting a video that had over 6 million views, was trending on YouTube, that no doubt had to be flagged by tons of people,” DeFranco said.

“The only reason it was taken down is Logan or his team took it down, and YouTube didn’t do a damn thing. Part of the Logan Paul problem is that YouTube is either complicit or ignorant.”

. . . .

[B]y the middle of 2018, lifestyle vloggers like Carrie Crista, who has just under 40,000 subscribers, were proclaiming how the community felt: forgotten. “YouTube seems to have forgotten who made the platform what it is,” Crista told PR Week. In its attempt to compete with Netflix, Hulu, and Amazon, she said, YouTube is “pushing content creators away instead of inviting them to a social platform that encourages them to be creative in a way that other platforms can’t.”

Even people outside of YouTube saw what was happening. “YouTube is inevitably heading towards being like television, but they never told their creators this,” Jamie Cohen, a professor of new media at Molloy College, toldUSA Today in 2018.

By promoting videos that meet certain criteria, YouTube tips the scales in favor of organizations or creators — big ones, mostly — that can meet those standards. “Editing, creating thumbnails, it takes time,” Juliana Sabo, a creator with fewer than 1,000 subscribers, said in 2018 after the YouTube Partner Program changes. “You’re just prioritizing a very specific type of person — the type of person that has the time and money to churn out that content.”

Individual YouTube creators couldn’t keep up with the pace of YouTube’s algorithm set. But traditional, mainstream outlets could: late-night shows began to dominate YouTube, along with music videos from major labels. The platform now looked the way it had when it started, but with the stamp of Hollywood approval.

. . . .

The RackaRacka brothers are tired.

“We loved it before when it was like, ‘Oh, you guys are doing something unique and different. Let’s help you guys so you can get views and get eyes on it,’” Danny says. “I’d love to go back to that. We have so many big, awesome ideas that we’d love to do, but there’s no point in doing it on YouTube.”

Link to the rest at The Verge

The OP is a very long article. PG has excerpted more than he might have from an article with a different topic, however.

While reading the article, PG was struck by parallels between how dependent indy videographers were on YouTube and how dependent indy authors are on Amazon.

A year ago, PG doesn’t believe he would have had the same response. The amateurism and arrogance demonstrated by YouTube management in the OP contrasted greatly with the maturity and steady hand at the top levels of Amazon. Amazon has not made many dumb mistakes. Amazon has also treated indy authors with respect and generosity beyond that shown by any other publisher/distributor/bookstore in the US (and probably elsewhere).

This is not to say Amazon is a perfect company or that it hasn’t made some mistakes, but Amazon has demonstrated good business judgment, done a pretty good job of fixing its errors and hasn’t changed the way it operates in a manner that has harmed indie authors in a serious way.

Obviously, Jeff Bezos, his attitudes, judgment and approach to dealing with others has imprinted itself up and down the corporate hierarchy at Amazon. That sure hand on the corporate helm has caused PG to trust Amazon more than he does any other large tech company.

Additionally, Amazon has been leagues beyond any other organization in the book publishing and bookselling business in attracting smart adults as managers, making intelligent business decisions, treating partners well and managing the business as if it wanted long-term success as a publisher and bookseller (see, as only one example of business as usual in the publishing world, Barnes & Noble).

However.

PG admits his faith in Jeff Bezos’ solid judgment took a big hit with the disclosure of Bezos’ marital misconduct and divorce.

This struck him as an immature example of the runaway hubris that has brought down quite a few large companies, particularly in the tech world.

PG is old-fashioned in his belief that the behavior of a virtuous individual will manifest itself in all parts of that individual’s life. He understands the common explanation for such behavior in terms of a person being able to segment his life into business and personal spheres and continue in public excellence while making serious mistakes in private behavior.

PG also understands that marriages can fail for a wide variety of reasons and assigning blame for such failure (if there is blame to be assigned) is impossible for someone who is not privy to the personal lives of each party. That said, PG suggests at least a separation, if not a divorce, would be a more standup approach by a mature adult exercising good judgment to a marriage that has declined to the point of a breakup.

A secret affair that is leaked to the press is not, in PG’s admittedly traditional eyes, up to the standards he has come to expect from Bezos. The general reaction PG has seen in the press leads PG to believe he is not alone in his opinion.

Apple Felt like a Totally Different Company Today

26 March 2019

From Fast Company:

While I sat inside the Steve Jobs Theater watching Big Bird talk to a hand puppet on the stage, I realized Apple was not the same company I knew not long ago.

No new devices were announced. There were no slides filled with impressive specs or performance metrics. No oohs and ahhs. No “one more thing.”

Yeah, yeah, I know: Apple, under CEO Tim Cook, is becoming a services company to account for flagging iPhone sales growth. What we saw today, at Apple’s “It’s show time” event in Cupertino–maybe for the first time–is the public face of that new company.

Part of the reason the presentation felt so different is because it was as much about other companies as it was about Apple. It was about Apple putting an Apple wrapper on a bunch of content and services made by third parties.

. . . .

All these announcements came in the first hour of the presentation. With that much time left I wondered if Apple had some tricks up its sleeve after all. But no: It had simply reserved an entire hour to talk about its original video content, which it has branded “TV+,” and which won’t be available until next fall.

What followed was a string of Hollywood people talking about the shows and movies they’re making for Apple. The uneasy mix of Hollywood and Silicon Valley cultures was on full display. Reese Witherspoon, Jennifer Aniston, and Steve Carrell were there to boost a show they’re making about TV news personalities, but they came off like they were trapped under glass.

Steven Spielberg came out to a warm welcome and talked about his reboot of the Amazing Stories series for television. A dramatic video came on about how we desperately need more conversation among people with different viewpoints. Then the lights went down, and when they came up Oprah Winfrey was there.

. . . .

The question is the company’s identity. At Apple events we’re used to seeing people like Kevin Lynch (Apple Watch) and Craig Federighi (iOS) who you know live and breathe core “Designed in California” products.

Today the company made a big deal of announcing a bunch of third-party content and services, with only passing references to the hardware that made it famous. Should Apple really identify itself with products that its own creative hand never really gets close to?

Link to the rest at Fast Company

TPV isn’t a tech blog, but PG has worked with a variety of tech companies in the past and, although he’s a Windows guy, has always admired Apple’s sense of mission and used iPhones almost forever.

The successor of a talented and creative CEO has a tough job in Silicon Valley. After a quick mental review, PG thinks far more successors at significant tech companies have failed than have succeeded.

Steve Jobs took Apple through some perilous times, but he always pushed the envelope and announced interesting new products. Under Jobs, Apple certainly had some product failures, but it never seemed like a company that was resorting to lame strategies. When things got tough, Apple thought big.

As the OP reflected, after stumbling with the pricing/features of its latest iPhones, yesterday’s announcement seemed to represent, “We’ve got to do something! Let’s copy what other companies are doing, but use Apple branding. Apple has a great brand that we need to exploit.”

PG suggests that brand equity is a precious commodity that needs to be preserved and cultivated with impressive new accomplishments, fostering the assurance that customers can continue to receive great benefits from the company and its products. It needs to feel cool by the standards of its industry.

In the tech world, where real technology talent is always in short supply, newly-graduated engineers from top universities are often attracted to employers who promise the opportunity to work on the cutting edge.

For all of Tesla’s financial ups and downs and Elon Musk, its frenetic CEO, engineers working there feel like they’re inventing the future. Amazon has felt like a serious innovator for a long time and can attract tech and marketing talent based upon that reputation and the opportunity to work on something new and different. (PG hopes Bezos’ marital problems aren’t Amazon’s version of Jobs’ pancreatic cancer.)

If Apple’s reputation becomes, “The company is not what it used to be and shows no signs of turning around,” adverse consequences will appear from many different directions.

 

How Printers Can Capitalize on Book Publishing Trends in 2019

20 March 2019

From Printing Impressions:

As technology continues to disrupt and transform the book market, publishers are responding by changing business models that affect how media is produced, distributed and consumed in the book publishing industry. As dramatic technology shifts continue, book publishers, authors and printers need to adapt to benefit from new opportunities.

With the start of another year, book publishers and manufacturers are evaluating what the future might hold.

. . . .

For those in the printing industry, Walter highlighted that there was modest growth in print book sales in 2018 with volume climbing 1.3% — in a year where there were no major blockbuster bestsellers like “Fifty Shades of Grey” or “Harry Potter.” Walter expects the market to remain relatively flat but stable. The key is the migration to more and more digitally printed books.

. . . .

The Book Industry Study Group (BISG) is a leading book industry trade association that offers standardized industry best practices, research and information. O’Leary said one of the biggest issues facing the book market is the management of the supply chain and shared results of BISG’s year-end “State of the Supply Chain” survey. O’Leary highlighted that the three top priorities respondents were focused on in 2019 when it came to supply chain management were:

  1. Making data-driven decisions
  2. Timely, high-quality metadata to improve discovery and sales (At its most basic level, metadata is how people find your book. This includes the ISBN, keywords, the author name, pub date, BISAC code, reviews, author bios and more. )
  3. Keeping up with new technologies to improve workflow and supply chain management

. . . .

IBPA CEO Angela Bole explained that three publishing models continue to exist: traditional publishing; self-publishing, where authors can be assisted or unassisted by vanity press organizations; and hybrid or partner publishing.

Bole says that in 2019, the industry will experience the rise in hybrid publishing — a gray zone between traditional publishing and self-publishing that is still being defined. Bole described hybrid publishing as publishing companies behaving like traditional publishing companies in all respects, except that they publish books using an author-subsidized business model, as opposed to financing all costs themselves, and in exchange return, a higher-than-standard share of sales proceeds to the author. In other words, a hybrid publisher makes income from a combination of publishing services and book sales. Hybrid publishers provide a range of services for the author such as:

  • Vet submissions.
  • Publish under its own imprint(s) and ISBN(s).
  • Publish to industry standards.
  • Ensure editorial, design and production quality.
  • Pursue and manage a range of publishing rights.
  • Provide distribution services.
  • Demonstrate respectable sales.
  • Pay authors

Link to the rest at Printing Impressions

PG won’t spend time venting, but he will suggest that traditional publishing is already author-subsidized in that authors receive only a small percentage of the money generated by their books while publishers receive a significantly larger share.

EU and Article 13: the Dystopia That Never Was and Never Will Be

15 March 2019

From The Trichordist:

The “Declaration of the Independence of Cyberspace“ published in 1996 by John Perry Barlow begins with the words “Governments of the Industrial World I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone.” One reading of this text entirely rejects the possibility that processes of making and enforcing collectively binding decisions – political processes – apply on the Internet. Another possible reading sees the Internet as a public space governed by rules that must be established through democratic process while also holding that certain sub-spaces belong to the private rather than the public sphere. The distinction between public and private affairs, res publicae und res privata, is essential for the functioning of social spaces. The concept of the “res publicae” as “space concerning us all”  led – and not only etymologically – to the idea of the republic as a form of statehood and, later, as a legitimate space for democratic policymaking.

On the Internet, this essential separation of private and public space has been utterly undermined, and the dividing lines between public and private spaces are becoming ever more blurred. We now have public spaces lacking in enforcement mechanisms and transparency and private spaces inadequately protected from surveillance and the misuse of data. Data protection is one obvious field this conflict is playing out on, and copyright is another.

The new EU Directive on Copyright seeks to establish democratic rules governing the public dissemination of works. Its detractors have not only been vociferous – they have also resorted to misleading forms of framing. The concepts of upload filters, censorship machines and link taxes have been injected into the discussion. They are based on false premises.

. . . .

What campaigners against copyright reform term “upload filters” are not invariably filters with a blocking function; they can be simple identification systems. Content can be scanned at the time of uploading to compare it to patterns from other known content. Such a system could, for example, recognize Aloe Blacc’s retro-soul hit “I need a Dollar.” Such software systems can be compared to dictation software capable of identifying the spoken words in audio files. At this point in time, systems that can identify music tracks on the basis of moderately noisy audio signals can be programed as coursework projects by fourth-semester students drawing on open-source code libraries. Stylizing such systems as prohibitively expensive or as a kind of “alien technology” underestimates both the dystopian potential of advanced pattern recognition systems (in common parlance: artificial intelligence) in surveillance software and similar use cases while also underestimating the feasibility of programming legitimate and helpful systems. The music discovery app “Shazam,” to take a specific example, was created by a startup with only a handful of developers and a modest budget and is now available on millions of smartphones and tablets – for free. The myth that only tech giants can afford such systems is false, as the example of Shazam or of enterprises like Audible Magic shows. Identifying works is a basic prerequisite for a reformed copyright regime, and large platforms will not be able to avoid doing so. Without an identification process in place, the use of licensed works cannot be matched to license holders. Such systems are, however, not filters.

. . . .

The principal argument of critics intent on frustrating digital copyright reforms that had already appeared to be on the home stretch is their charge that the disproportionate blocking of uploads would represent a wholesale assault on freedom of speech or, indeed, a form of censorship. Here, too, it is necessary to look more closely at the feasibility and potential of available options for monitoring uploads – and especially to consider the degree of efficiency that can be achieved by linking human and automated monitoring. In a first step, identification systems could automatically block secure matches or allow them to pass by comparing them against data supplied by collecting societies. Licensed content could readily be uploaded and its use would be electronically registered. Collecting societies would distribute license revenue raised to originators and artists. Non-licensed uses could automatically be blocked.

. . . .

Humans can recognize parodies or incidental uses such as purely decorative uses of works in ways that that do not constitute breaches of copyright.

The process of analysis could be simplified further by uploaders stating the context of use at the time works are uploaded. Notes such as “This video contains a parody and/or uses a copyrighted work for decorative purposes” could be helpful to analysts. The Network Enforcement Act (NetzDG) in Germany provides a good example of how automatic recognition and human analysis can work in tandem to analyze vast volumes of information. A few hundred people in Germany are currently tasked with deciding whether statements made on Facebook constitute incitement to hatred and violence against certain groups or are otherwise in breach of community rules. These judgments are significantly more complex than detecting impermissible uses of copyrighted works.

. . . .

Being obliged to implement human monitoring will, of course, impose certain demands on platforms. But those most affected will be the platforms with the largest number of uploads. These major platforms will have the highest personnel requirements because they can host content of almost every kind: music, texts, video etc. Protecting sites like a small photo forum will be much simpler. If only a modest number of uploads is involved, the forum operator can easily check them personally at the end of the working day. In that case, uploaders will simply have to wait for a brief period for their content to appear online. Or operators can opt to engage a service center like Acamar instead of adding these checks to their own workloads. Efficient monitoring is possible.

Link to the rest at The Trichordist

PG understands and sympathizes with the concerns of copyright owners about improper use of their property.

However, every online use of copyrighted material does not represent a loss of income to the copyright owner. Assuming there was a price tag associated with the use of such material, it could be omitted entirely or a substitute without a price tag could be selected.

While some uses of copyrighted material can be harmful, a great many of such uses may be viewed by 25 people who are unlikely to be paying consumers of that material.

Under US copyright law, the protected fair use of copyrighted material is often not a clear-cut matter. Reasonable people can disagree about whether a use is covered by fair use or not.

A significant number of owners of large catalogs of copyrighted material are extremely aggressive in their interpretation of what is protected by those copyrights. Disney and Mickey Mouse are but one example.

A couple of statements in the OP raised further concerns:

  • If only a modest number of uploads is involved, the forum operator can easily check them personally at the end of the working day.
  • In that case, uploaders will simply have to wait for a brief period for their content to appear online.

Exactly how is a forum operator who operates a small online site and supports it by working at a day job supposed to conduct an analysis of say 30 uploads to determine whether they may be subject to anyone’s copyright and, if they are, whether the use of the works was fair use or not? If a photo shows up in the uploads, how is the operator to determine who the creator of the photo is/was? If a photo has been modified by the person posting it, how is the operator to determine who the creator of the original photo was?

As far as “uploaders” waiting “for a brief period for their content to appear online”, PG suggests such delays may well adversely impact the quality of the online discussion. If an original post triggers a lot of responses, but those responses are held in moderation, are visitors to the online forum going to assume the post is irrelevant or is of no interest and perhaps leave the forum for good.

The killer among the breezy thoughts in the OP is, “Being obliged to implement human monitoring will, of course, impose certain demands on platforms.”

It will impose a serious and significant demand on platforms. If one were designing regulations to substantially reduce the amount of online dialogue about a wide range of subjects and the number of places where that dialogue occurs, imposing “certain demands” on those who sponsor such communities is a perfect way to make anything other than standard mainstream destinations and opinions to go away and rob the Internet of much of its innovative energy and independent thought.

If one were designing a system to ensure corporate control of online interaction, one might certainly do so on the pretense of protecting the words and pictures of copyright holders.

Digitized Images of Works in the Public Domain: What Rights Vest in Them?

19 February 2019

From IPKat:

A few days ago the German Federal Court of Justice (BGH) released the full text of its recent judgment concerning protection of digitized versions of public domain images. The IPKat is delighted to host, in two posts, the analysis provided by Tobias Lutzi (Research Fellow at the University of Cologne), and John Weitzmann(General Counsel at Wikimedia Deutschland e. V. in Berlin), respectively.

Here’s what John writes:

Note: The German Wikimedia Chapter had also been defendant in this case, but was acquitted by the court of first instance, while parallel proceedings against the US-based Wikimedia Foundation as service provider of the Wikimedia Commons platform are still on-going at the High Court of Berlin. 

. . . .

From the perspective of the Wikimedia Movement, the most disappointing aspects of the judgment are its treatment of § 72 UrhG, putting additional means of control over public domain works in the hands of those cultural heritage institutions, that regard control as an integral part of their public mission. As mentioned by Tobias here, it is highly questionable whether publicly funded museums should even consider using injunctions to go after digital copies of public domain works they hold in their collections.

If private owners of artworks are involved, there might be an argument for control on behalf of such private interests, in order to get the respective works into museums and before the public’s eye in the first place. But to limit the visibility of publicly owned works of art in any way, to leverage related rights in photographic depictions even with public domain works, can hardly be anything but a gross misunderstanding of the role and mission public cultural heritage institutions have. Such institutions must do anything within their power to hold as much of our cultural heritage in the public’s awareness, including on the internet, and therefore must not hide or withdraw public domain works from the public’s conscious perception.

. . . .

In all this, the judgment in the rem case almost tragically brings to bear the fundamental flaw of the hybrid rule that the German legislator produced by legally synching the neighbouring right in photographs, § 72 UrhG, to the proper copyright in photographic works, § 2 UrhG, in the 1960s. The intention behind this synching was a well-meaning one at the time: Parliament wanted to relieve judges of the close-to-impossible task of discerning non-original photographs from those that are actual works of art. Thus, § 72 was amended to let the same rules that apply to photographic works of art simply also apply to non-original photos – with the one exception of the protection term, which is shorter for non-original photos, lasting only 50 years after publication, whereas photographic works are protected until 70 years after the death of the photographer.

. . . .

[T]he High Court of Stuttgart had argued that even the meticulous reproduction photos in question (i. e. the ones made by the museum’s photographer for a catalogue that had later then been scanned by the defendant and uploaded to the Wikipedia’s media archive Wikimedia Commons) were not “mere technical reproductions”, but represent …

[22] (…) an independent new fixation into a new work form [and are photographs] initially made with creative intention. [own translation]

Now, one does not need to share the infamous fondness of dogmatic detail present in German civil law to find it odd that a second instance court introduces terms like “work” and “creative intention” (in German: “Schöpfungswillen”) when actually speaking about a neighbouring right in photographs. Usually, under German copyright law the term work (“Werk”) is much more narrowly than in the Anglo-American tradition reserved for works of authorship. That is the very reason de être of all those neighbouring rights in “non-works” in the first place. There’s a whole universe of arguments about the special bond between the work and its creator, and why that bond is so very special and valuable, even producing unwaivable moral rights.

. . . .

[C]an there actually be such a personal intellectual contribution or achievement in a photograph if the subject of the photograph is entirely fixed?

It can’t be stated enough: The content of reproduction photos is fixed in all thinkable ways. By definition they must as exactly as possible give the same impression as the works they depict, nothing added and nothing taken away. How can those repro photographs be more than “mere technical reproductions” if all the photographer can work with are shutter time, light, aperture and such – all of which go beyond technical in nature only if and where they are tools for creative expression? It must be emphasised yet again that any kind of creative expression is forbidden for repro photographers, who in this role strictly have to limit themselves to replicating the visual impression the object reproduced makes on viewers.

. . . .

[T]he pictures are indeed limited to getting the technicalities right to carry the exact impression of their object, being repro photographs in the proper sense. In that case, however, they can’t qualify as more than technical reproductions – very elaborate reproductions, one might add, that require a lot of expertise to make, but still reproductions.

. . . .

So, how can a tech-and-expertise-only reproduction photo still be covered by a neighbouring right that does not cover mere technical reproductions? The apparent contradiction is solved by invoking an additional criterion. The Court itself, turning to legal scholarship, established in 1989 (I ZR 14/88) the notion that only the first-stage exact photographic depiction taken of any subject is legally worthy of a neighbouring right protection, while further photos taken of this first photo are not and are seen as mere reproductions. This so-called “Urbildtheorie” has no explicit foundation in the wording of the German Copyright Code. It is purely a development of the law (in German “Rechtsfortbildung”) through judicial deduction and interpretation.

. . . .

There are paintings made by artists a long time ago, and exact photographic depictions of those paintings, protected under a neighbouring right because they are taken directly from the public domain works in the museum. However, had those artists of old used photography instead of brush and canvas to express their creativity, equally exact photographic depictions of such works of photography would not be covered by related rights. In other words, an exactly matching photo of a painting is protected, while an equally exactly matching photo of a photographic work is not.

Link to the rest at IPKat

Here’s a link to the first part the IPKat summary.

PG agrees with the criticism of the decision contained in the commentary (although he claims no expertise in German law).

The fundamental structure of copyright law in the US and, via international treaties, many other places, is based upon the proposition that the creator of an original intellectual property (painting, book manuscript, sculpture, for example) should have the exclusive ability control the exploitation of that property via copying or creation of derivative works for a period of time. An author can prevent someone from replicating the contents of a manuscript without the author’s permission, for example.

Once the copyright term has expired, the creator’s rights under copyright law expire as well.

The rationale for providing an ability to prevent a non-author from simply copying the work of an author, then exploiting it commercially or otherwise is that society in general is benefitted if creators are encouraged to create and share their creations by allowing them the exclusive right to profit from those creations. If there were no effective right for a creator to profit (monetarily, through enhanced reputation, etc), he/she would have to take a job at McDonalds flipping burgers for material support and thus would have less time to create and could well give up the creative activity altogether. Or a great artist would make paintings and never allow anyone to see them so the artist would avoid having others make copies of the products of the artist’s works of genius.

In exchange for a creator being permitted to prevent others who admired a work from simply making a copy of it for their own enjoyment or for commercial exploitation (a natural human instinct) and bring the creations into the public sphere for the artist’s exclusive benefit, the creator’s right to prevent the public from making knockoffs or derivative works was time-limited. Society would protect the creator’s work from reproduction for a period of time so the author could profit and society would benefit from being able to enjoy the work right away, but eventually, the creator’s exclusive rights would expire so other creators or non-creators could use the work for all sorts of new and interesting purposes.

However, intellectual property must have a meaningful element of originality to be protected. If I pick up a rock and paint it red, then seek to prevent anyone else from commercially exploiting rocks painted red, I’ve done something unoriginal and obvious, not truly new or unique or creative. The same analysis would prevent me from copyrighting the words, “and they lived happily ever after.”

With that rambling foundation, why was the German court so wrong?

The artist who created the painting that is now in a German museum owned the copyright to the original painting. The clock was ticking on the copyright’s exclusive period of protection. Presumably, when the artist sold or gave the painting to someone else, the person who acquired the painting acquired the associated copyright, including the right to exercise the rights granted under copyright law in the same manner as the original artist could.

(It is possible for the artist to retain the copyright, while only selling the painting itself, but absent some sort of clearly documented agreement to that effect, the copyright is presumed to go with the painting. This is why authors should only license their copyrights rather than assigning them to publishers unless the publishers pay a large lump sum (not an advance against royalties) up front. If the publisher fails to pay royalties and the publisher owns the copyright, the author has a more difficult time reverting rights to him/herself. An artist who creates a painting is more likely to sell a painting to someone who wants to own it and who pays to acquire the painting rather than agreeing to pay the artist a certain amount for each copy of the painting the purchaser might or might not make.)

What (in PG’s inarticulately expressed opinion) can a museum that has just acquired a painting for which the artist’s copyright has expired do if the museum wants to profit from selling copies of the painting?

The museum could do what the original artist could do, not show the painting to anyone to prevent copying.

Or, the museum could prohibit anyone from bringing a camera into the museum and search pockets/purses, etc., to make certain everyone complies. Or a museum could bind visitors to a contract under which visitors agreed they would not take photos of the painting and further agreed that they would pay the museum $1 million in damages if they violated the contract.

In the German case, the court held that the museum could make a photograph — a copy — of a painting that is no longer protected by copyright, claim a copyright in the photo, then use its copyright of the photo to prevent other people from making, publishing, selling, etc., copies of the original painting because doing so would be the same as making a copy of the museum’s photo of the painting.

In addition to the arguments cited in the OP (a perfect copy of the painting made via a camera does not include elements of creativity to sufficient for the photo to be entitled to copyright protection), PG suggests permitting a photo of an original painting that is not protected by copyright to be copyrighted as if the photo were its own separate creative work, thus starting a new period of copyright protection that prohibits copies of the painting to be made and sold without the permission of the museum is the most slippery of slippery slopes.

When the copyright on the photo is nearing expiration, could a future technology that is not like a camera be used to make another copy of the painting, thus generating a new period of copyright protection that would continue to prevent anyone other than the museum from making copies of the then way, way, way out of copyright painting?

How about using the new technology to make a new copy of the previous copy of the museum’s copyrighted photo and claim a new period of copyright protection on the same basis the court recognized a perfect copy of the original painting to form the basis for a separate copyright – that the operator of the new technology made adjustments necessary for the use of that technology to make another perfect copy?

The museum claimed all of the things the photographer did in order to make a perfect copy – setting the camera properly, lighting the painting just so, etc., represented new creativity that was incorporated in the perfect copy of the painting.

In the United States, this argument would be termed as a claim of copyright based upon “sweat of the brow” activity. See Genesis 3:19 – “In the sweat of thy face shalt thou eat bread, till thou return unto the ground”

From Wikipedia:

According to this doctrine, an author gains rights through simple diligence during the creation of a work, such as a database, or a directory. Substantial creativity or “originality” is not required.

Under a “sweat of the brow” doctrine, the creator of a copyrighted work, even if it is completely unoriginal, is entitled to have his effort and expense protected, and no one else may use such a work without permission, but must instead recreate the work by independent research or effort. The classic example is a telephone directory. In a “sweat of the brow” jurisdiction, such a directory may not be copied, but instead a competitor must independently collect the information to issue a competing directory. The same rule generally applies to databases and lists of facts.

Link to the rest at Wikipedia

This argument was rejected by the US Supreme Court in  Feist Publications v. Rural Telephone Service, 499 U.S. 340 (1991).

Discussing the principle that facts are not copyrightable, but that compilations of facts can be, the Court said,

Article I, § 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity. Since facts do not owe their origin to an act of authorship, they are not original, and thus are not copyrightable. Although a compilation of facts may possess the requisite originality because the author typically chooses which facts to include, in what order to place them, and how to arrange the data so that readers may use them effectively, copyright protection extends only to those components of the work that are original to the author, not to the facts themselves. This fact/expression dichotomy severely limits the scope of protection in fact-based works.

Applied to the German case, if the photographer’s objective and accomplishment was to make as perfect a copy of the original painting as is possible using current technology, then, if copyright protection extends, per Feist, only to those components of the photograph that are original to the photographer, not to the components of the photograph that are original to the artist who created the original painting, there is no copyright to a perfect copy of the painting.

If the photographer had used the camera to make a photo that looked different from the original painting, substituting red for blue, for example, an argument for originality might be reasonable and anyone else making a copy of the red/blue photo might be violating the museum’s copyright on the photo.

But a perfect copy of the original painting includes nothing original to the photographer. Anything the photographer might have done that isn’t reflected visually in the resulting photograph doesn’t indicate anything original to the photographer is protected in the perfect copy. PG would argue that even trivial differences between the photo and the painting that result from the transfer of the image from one medium to another don’t constitute originality necessary for copyright protection.

Following is an English version of the German Court decision (per Google translate – PG does not speak German, so he can’t vouch for any level of accuracy)

[pdf-embedder url=”https://www.thepassivevoice.com/wp-content/uploads/2019/02/A1-BUNDESGERICHTSHOF.pdf” title=”A1 – BUNDESGERICHTSHOF”]

Amazon Will Pay a Whopping $0 in Federal Taxes on $11.2 Billion Profits

16 February 2019

From Fortune:

Those wondering how many zeros Amazon, which is valued at nearly $800 billion, has to pay in federal taxes might be surprised to learn that its check to the IRS will read exactly $0.00.

According to a report published by the Institute on Taxation and Economic (ITEP) policy Wednesday, the e-tail/retail/tech/entertainment/everything giant won’t have to pay a cent in federal taxes for the second year in a row.

This tax-free break comes even though Amazon almost doubled its U.S. profits from $5.6 billion to $11.2 billion between 2017 and 2018.

To top it off, Amazon actually reported a $129 million 2018 federal income tax rebate—making its tax rate -1%.

. . . .

ITEP notes that its non-existent federal tax payment is a result of the Trump Administration’s corporation-friendly tax cuts. The think tank writes that the 2017 Tax Cuts and Jobs Act not only decreased corporate tax rates from 35% to 21%, but it also didn’t close “a slew of tax loopholes that allow profitable companies to routinely avoid paying federal and state income taxes on almost half of their profits.”

Link to the rest at Fortune

PG apologizes for the annoying auto-play video with an accompanying audio track in the OP.

PG also notes that Amazon doesn’t write the federal or state tax codes and PG hasn’t seen any reports that Amazon has violated any of those laws.

As far as tax “loopholes” are concerned, one person’s loophole is another person’s reasonable provision for calculating a fair tax rate.

One of the most commonly-used deductions for individual taxpayers is the mortgage interest deduction. If an individual or couple purchased a home and borrowed money to help fund that purpose, the interest they pay on that loan is deductible from their gross income.

The rationale for this loophole is a belief by the elected representatives of the people that a great many benefits arise when citizens are able to purchase and own their homes. Community stability and the encouragement of civic virtues due to lower rates of transience within a community, encouragement for couples to have children, the benefits to those children (and future taxpayers) that arise from being able to grow up in a single home and attend neighborhood schools as compared to moving to a new location every one-two years due to rent increases on a rented residence, etc., etc., etc.

While there are counter-arguments, PG suggests the home mortgage deduction is highly-valued by a large majority of the adult population of the United States.

When dinosaurs walked the earth, PG took a couple of income tax law classes in law school and several of his classmates earned their Masters of Law in Taxation after completing regular law school.

The complexity and weirdness of the US tax laws cannot be overstated. There are tax attorneys in the United States who earn a good living for their entire careers by specializing in the application and avoidance of taxes imposed under a couple of provisions in the tax law that most people have never heard of and would have difficulty in understanding without extensive prior tutoring in the nearly impenetrable language and concepts and conflicting interpretations of such underlying those laws.

Each of the 50 states have their own individual tax laws and the potential number of unintended interactions between state and federal tax laws probably cannot be calculated.

Speaking only of the US tax laws, there are disagreements about how long they are. In 2015, the Tax Foundation said the Federal Tax Laws and Regulations total more than ten million words.

This figure includes the federal internal revenue code (2,412,000 words long) and federal tax regulations (7,655,000 words long). It does not include the substantial body of tax-related case law that is often vital to understanding the tax code.

The length of the federal tax code and regulations has grown steadily over the past sixty years. In 1955, the two documents were 1.4 million words in length. Since then, they have grown at a pace of about 144,500 words a year. Today, the federal tax code is roughly six times as long as it was in 1955, while federal tax regulations are about 2.5 times as long.

. . . .

Americans spend 6.1 billion hours and $233.8 billon complying with the tax code. Due to increasing tax complexity, over 90 percent of taxpayers now hire professional tax preparers or use tax preparation software.

Why is the federal tax code so complex? In part, it’s because politicians have used the tax code to administer dozens of areas of federal policy – from healthcare to energy to education. In part, it’s because defining income and determining tax liability are inherently difficult tasks. And, in part, it’s because politicians have not made any serious effort to simplify the federal tax code for at least thirty years, instead adding on new provisions on top of one another.

The federal tax laws are so lengthy that there are disputes about how long it actually is. Again, from The Tax Foundation in 2014:

Andrew Grossman, the legislation counsel for the Joint Committee on Taxation that helps write tax laws, attacked us in Slate yesterday for saying that the tax code runs 70,000 pages, countering that it’s “only” 2,600 pages.

. . . .

There’s the literal statutes that Congress has passed (Title 26 of the U.S. Code). The Government Printing Office sells it spread over two volumes, and according to them, book oneis 1,404 pages and book two is 1,248 pages, for a total of 2,652 pages. At perhaps 450 words per page, that puts the tax code at well over 1 million words. (By way of comparison, the King James Bible has 788,280 words; War and Peace runs 560,000 words; and the Harry Potter series is just over 1 million words.)

. . . .

However, a tax practitioner who relies just on the tax statutes will go to jail, because so much of federal tax law is in IRS regulations, revenue rulings, and other clarifications. Congress will set down a policy and leave it to the IRS to write all the rules to implement it. These regulations aren’t short: the National Taxpayer Advocate did a Microsoft Word word count of the tax statutes and IRS regulations in 2012, and came up with roughly 4 million words. Again at roughly 450 words per page, that comes out to around 9,000 pages. The National Taxpayer Advocate also noted that the tax code changed 4,680 times from 2001 to 2012, an average of once per day.

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But, a lawyer who relies just on cases and regulations isn’t a very good lawyer, because most court decisions are made on the basis of previously decided cases. The respected legal publisher Commerce Clearing House (CCH) puts out such a compilation, the Standard Federal Tax Reporterof 70,000 pages, with notations after each statute containing relevant cases and other information. CCH itself considers this volume to be representative of “the tax code,” since an expert needs to know all 70,000 pages to understand the tax code in full.

So, has Amazon paid its “fair share” of income taxes? PG is highly confident that Amazon has used well-qualified tax experts to prepare its tax returns and calculate its tax liabilities.

For a long time, Amazon had no taxable profits at all. Indeed, it had losses. One of the concepts contained in various parts of the federal income tax laws is a “tax loss carry-forward”. Investopedia describes this as follows:

A tax loss carryforward is a provision that allows a taxpayer to carry over a tax loss to future years to offset a profit. The tax loss carryforward can be claimed by an individual or a business in order to reduce any future tax payments.

Amazon operated at a loss for the first several years of its existence and very thin profits for a lengthy period of time thereafter. To the best of PG’s knowledge, Amazon received no material payments from the US government to help it survive during those years.

Absent the benefits of loss carryforwards during the first years of lean profits, it’s possible that Jeff Bezos would have given up on the possibility that Amazon was ever going to be worth the very hard work he was putting into the company and closed it down so he could spend time working in another more financially-rewarding business.

Amazon currently reports it has 613,300 employees. PG suspects Amazon pays far better wages than McDonald’s does and each of those employees pays individual federal income taxes. From the standpoint of federal government tax revenues, is it a good thing for a company to employ over half a million people who each pay taxes? Would the country be better off if Amazon paid some corporate income taxes, but only employed 50,000 people?

PG will also note that, for its US employees, the company pays a huge amount of money into Social Security and Medicare as its employer’s share of those taxes, which are based upon the wages of its employees.

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