Tag Archives: intellectual property

On criminalizing & commodifying third-party site linking

So how long before doing this becomes “illegal copyright infringement”? A colleague who’s closely watching stateside goings-on alerted me to news that the US Department of Home1and Secur!ty has arrested an Internet user for linking to third-party websites.

So the DH S has arrested the user for running a website whose express purpose seems to be redirecting traffic to streaming TV. But the charge of copyright infringement alleges no copying. The potential implications are positively monstrous for the very character of the Internet.

Stiffer regulations of such fundamental Internet activity are closer than you might think in Canada, where Access Copyright that has already started down this treacherous road. Its proposed education-sector tariffs would controversially impose fees and penalties on third-party linking, which means that educators would be required not only to document any and all third-party links, but also to pay a fee for doing so.

“What this has to do with “Home1and Security” I have no idea,” writes said colleague who alerted me to this news, “but the DH S seems to be merely revealing its true character as a disciplinary machine whose real purpose is the surveillance and control of citizens for the sake of commercial interests. Although this is in the US, I have little doubt that Harper is watching and may try to follow suit (e.g. with CS1S).”

And here I thought a proposal to charge fees for third-party linking was about as insane as digital IP policy could get.

QuestionCopyright.org on this year’s “most ironic Oscar winner”

This is worth wider notice: a Question Copyright post that points out the irony in Trent Reznor’s win of the Oscar award on Sunday for “best original score,” since the score in question, for The Social Network, openly borrows Edvard Grieg’s “Mountain King” masterpiece — and since Reznor himself is, as the article details, “a musician who has capitalized on remix culture”:

[Reznor’s] an Oscar winner […] thanks to the same interest group responsible for the remarkably effective industry capture of national and international lawmakers with respect to copyright issues. […] With its sinister melody and increasingly frenetic pace, “In the Hall of the Mountain King” would make the perfect theme song for Hollywood’s escalating efforts to impose its supramaximalist view of copyright on the entire globe. Yet on Sunday, Hollywood gave its highest award to the poster child for remix culture.

And here I thought I’d never find anything at all of any interest whatsoever in the Oscars, that annual, over-exposed orgy of interminable self-congratulation, where the super-elite bow down before the one they serve to get what they “deserve.”

Who’s “speaking out” on copyright? “Canadian writers” — or Access Copyright?

I just got an e-mail forwarded from the Writers’ Union of Canada (TWUC), which promotes a Youtube video about the new copyright Bill C-32, and includes a “petition”-style message for sending to MPs: a message that, like the video, speaks out against Bill C-32’s new fair dealing provisions for educators.

So as a Canadian educator, I am supposed to write to my MP and the government against C-32’s new fair-dealing exemption? See the vid for yourself. And, oh, by the way, watch for the positive mention of Access Copyright, about a minute and a half in:

Having watched the video, I am emphatically more inclined to agree with the shrewd critical comments posted to Youtube about it. And with the more extensive analysis given the video by one commentator, a Canadian novelist who is less than thrilled to have Access Copyright and TWUC “representing” him in this misleading way — Cory Doctorow makes the important but disturbing point that a message like this “uses lies to pit creators against schools.” For more skeptical critical analysis, Canadian copyright lawyer Howard Knopf has weighed in on this too, calling the video a piece of “orchestrated and inaccurate hysteria.”

The problem with C-32 is its protection of digital locks, not its new fair-dealing provisions: these actually represent a big gain for Canadian educational institutions (though still not on the order of what US educators can do under their fair-use laws). However, clearer and more flexible fair-dealing provisions for educators could well spell trouble for Access Copyright, which is, nevertheless, still doing its utmost to alienate Canadian PSE anyway.

Cross-posted from my AU Landing blog

Lady Gaga, copyfighter?

Google search results for “Lady Gaga infringement”: 630,000
For “Lady Gaga copyright”: 270,000,000

That’s a lot of Intertubes about Lady Gaga and copyright. Sifting the results, though, turns up little by way of actual actions. She threatened to sue the maker of a “Lady Gag Gag” sex doll, for instance; and action against her has been threatened by an alleged co-writer.

(If anyone knows of other actions, please comment — I just haven’t time to sift all two hundred and seventy million results!)

Rather more of the results have to do instead with Gaga’s perceived lack of originality, pointing out rather obvious similarities between her image and music and those of Madonna, or, say, between her meat dress and Canadian sculptor Jana Sterbak’s 1987 meat dress.

I had bristled at first that Lady Gaga so nakedly plagiarized the meat dress. But it now occurs to me that what she’s doing in music and fashion combined is oddly representative of today’s remix culture, in a political climate of ever more restrictive IP regulation. Lady Gaga, a major presence in both fashion and music now, is, in a way, bringing something of the copyright-indifferent business practices of the former — in which “there’s very little intellectual property protection” — to bear on the copyright-mad business practices of the latter.

Maybe not intentionally, maybe just inadvertently.

In any case, the various productions and performances of Lady Gaga stand open to some very suggestive interpretation, as critical statements on the present state of tensions and negotiations between the corporate-backed hegemony of “originality” and the creativity of open appropriation.

Update: I’ll take this story about Lady GaGa’s endorsement of a little Canadian girl who covered “Born this way” on Youtube as some solid evidence supporting my hunch here.
The Youtube vid in question is pretty excellent.

UPDATE 2.0! TorrentFreak confirms that “Lady Gaga Is a BitTorrent Loving Pirate.”
Apparently “she asked her fans to send a torrent (or YouTube) link of the Top Chef Just Desserts finale.”
Now, about that thing with the photographers

Canadians have until Jan. 31 to comment on copyright bill

As Michael Geist says in his blog post today, we Canadians have until the end of this month to send comments on the new copyright bill, Bill C32, to the legislative committee now responsible for it. I’m not sure it’s exactly the “Canadian DMCA” that Cory Doctorow describes it as (especially since the DMCA itself is now more flexible on fair use and digital locks than our expected bill), but a copyright bill has no business protecting digital locks. IMHO.
For the record, here’s the letter I’ve just sent. (To send your own, consider these sources and strategies.)

Dear Bill C32 legislative committee,

There are solid gains for fair dealing in Bill C-32, but the bill protects digital locks more strictly than current US copyright law or even ACTA, now — and this protection trumps the bill’s otherwise substantial gains in fair dealing for Canadian consumers, educators, and businesses. Furthermore, digital locks — TPMs, DRM, etc. — are not intellectual property and should not be covered by IP legislation.

Bill C32 should provide protection for circumventing digital locks when undertaken for lawful purposes. As has been widely noted, this provision would still let Canada meet its obligations to international copyright agreements like WIPO and ACTA.

Thank you for fielding my comments on Bill C32.

Canada’s digital doppelgängers: a footnote

As I argue in a 2009 SFFTV article, it’s symptomatic of US-Canadian border tensions over copyright (as Wikileaked cables confirm) that the US-produced Battlestar Galactica TV series (2004-09) was shot in B.C., and that its leading Cylon villains are played by Canadian actors (Tricia Helfer, Grace Park, Callum Keith Rennie…I almost expected Bob and Doug MacKenzie to rise from one of those tubs of replicant goo). The Cylons are evil robots, indistinguishable from humans except for their copying practices: they “upload” their personalities to databases when they die, and “download” them into new bodies. Embodied by Canadian actors not necessarily recognized as such, the Cylons thus act out some of the cross-border differences in copyright law that keep Canada on the USTD’s blacklist of “pirate haven” nations.

In researching a forthcoming essay on new media and identity, I realized that Battlestar — as a Hollywood science fiction TV series casting Canadian actors in digital doppelganger roles — echoes an earlier show, Max Headroom (1987-88).

In that short-lived but fascinating experiment in “cyberpunk” TV, the main character, Edison Carter, was played by Canadian actor Matt Frewer. Carter is a videocam-wielding reporter for Network 23, in a near-future world styled after the McLuhanesque cyberpunk of William Gibson’s Neuromancer and Cronenberg’s Videodrome: in the show’s “20-minutes-into-the-future” world, it’s illegal to turn off a TV, the state distributes sets to the poor, and a genre of hyper-condensed commercials, the “blipvert,” is killing viewers. “Max Headroom” is the name assumed by Carter’s electronic double, a strictly screen-embodied personality (like Videodrome‘s Brian O’Blivion). Presumed dead after a traffic accident, Carter unwittingly donates his body to an experiment to produce a virtual television personality, a kind of artificial intelligence “dubbed” from Carter’s own mind, an AI calling itself “Max Headroom” (one of the earliest deployments of CGI on prime time television, rendered by Commodore Amiga computers). Carter lives (of course), and Headroom, flitting from screen to screen, tags along to help him on adventures through the corporate-dominated, polluted, hyper-mediated world of the series: a talking-head ghost running amok in a toxic media ecology that, from the vantage point of 2010, looks sometimes uncannily familiar, other times a quaint paleofuture. Headroom’s signature stutter and replay turn his lines into a kind of spoken-word dub, which also doubles, in the script, the mise en scene’s mediatized doubling of a corporeal, corporate reporter and his pixelated doppelgänger, the signal-jamming saboteur.

Headroom isn’t the villainous machine that the Cylons are; he’s more of a high-tech jester and trickster. But then again, the decade in which Battlestar got re-made wasn’t the same decade that gave us Headroom. We were more worried about the Cold War than global warming; “free trade” with the USA had yet to prove itself as a vehicle for neo-colonial annexation (which the current government now wants to extend to Europe?); and the Internet was still just a military-academic experiment, not the front in a total war on copying, of all things.

Like Lou Reed sings, you know, those were different times. (How much do I owe his label, now, for quoting him?)

Glenn Gould, copyfighter

“The role of the forger, of the unknown maker of unauthenticated goods, is emblematic of electronic culture.”
–Glenn Gould, 1964 (343)

In the mid-1960s, the virtuoso Canadian pianist, Glenn Gould, caused a sensation by abandoning live concert performances and tours, as well as speaking engagements, to focus strictly on recording and broadcasting. Gould had quickly tired of touring performances and the concert-hall economy that demanded them. His profession had ensconced concerts as the test and affirmation of authentic virtuosity. Gould not only dropped them, retiring to the studio and the radio booth; he also began to attack them, in thoughtful — and prescient — critiques, as the antithesis of artistic achievement in an age of mechanical reproduction.

Gould’s major statement of his thesis on recording as the future of music is his 1965 CBC radio documentary, “Dialogue on the Prospects of Recording”. Gould’s argument uncannily echoed Walter Benjamin’s, on art and mechanical reproduction, of which, as far as I know, Gould was unaware; his position was more specifically influenced by Marshall McLuhan. Gould argues that new electronic media represent a more private, individualized, and aesthetically satisfying future of music in contrast to the outmoded public “museums” of
live performance that, for him, no longer lay claim to the optimal appreciation of music. Gould echoes Benjamin in criticizing the romanticization (what Benjamin would call the aura) of the artist at the expense of appreciating the artwork: “the determination of the value of the work of art according to the information available about it is a most delinquent for of aesthetic appraisal” (“Prospects” 341). To illustrate his case, Gould tells the story of a wartime forger of Vermeer paintings, Hans van Meegeren. Van Meergen was reviled as a forger who had fooled expert art historians; he got only momentary reprieve after the war when it became apparent that the Vermeers he had sold to Nazis for enormous sums were in fact forgeries. Gould hails van Meergen as a “private hero” whose case “perfectly epitomizes the confrontation between those values of identity and of personal-responsibility-for-authorship which post-Renaissance art has until recently accepted and those pluralistic values which electronic forms assert” (341).

Gould’s elaboration on the “pluralistic values” of electronic forms centres on “a new kind of listener — a listener more participant in the musical experience” — indeed, a “listener [who] can ultimately become his own composer” (347). For Gould’s new kind of listener, private listening eclipses public listening. The intimacy and clarity of home listening lends the music higher definition and opens it not only to more involved appreciation, but also to transformation by the listener: “It may well be that the very near future will produce a do-it-yourself laboratory of home recording techniques…We already see this happening in the case of the hi-fi bug, the fellow who places his own interpretative notions of questions of dynamics, of balance, of separation, of textural preferences [on] the recording which he plays on his home stereo” (“Forgery” 219). Gould is extrapolating from the increasing availability of home stereo EQ controls and home audiotape systems, in 1964, to accurately project new, participatory forms of music production-consumption (prosumption) that have since materialized: a decade later, in the vinyl-synching, cassette splicing foundations of hip hop music; forty years later, in the digital redistributions and remix forms enabled by CD, MP3, and P2P.

What’s more: Gould recognizes the symbolic and material threat that DIY listening-composing would pose to music critics, concert halls, and record labels alike. “To those who insist that the relation of audience to the performing act be a passive one, it already constitutes licentious interpretative interference” (219). Echoing Benjamin’s argument about aura, Gould identifies the “controversy [of] the tape splice” as a target of “the antirecord lobby [which] proclaims splicing a dishonest and dehumanizing technique” (337). As for the emerging pro-record (but anti-recording) lobby, Gould imagines a “local club of spare-time mechanics … concentrating upon the project of producing a master tape amalgamating the perfect virtues of the Beethoven Fifth as rendered by Klemperer, Karajan and Bruno Walter,” and then reflects that “there may be certain contractual difficulties here. Perhaps EMI, Deutsche Grammophon and Columbia Records will be less warmly disposed than I to this idea” (“Forgery” 219-20).

Gould even nods inadvertently to the discourse of intellectual property regulation in reflecting on the audience’s departure from public performance scenes to private home listening. “Those experiences through which the listener encounters music electronically transmitted are not within the public domain” (“Prospects” 347, my emphasis). For his purposes, Gould simply means that electronic media encourage domestic, individualized, and customizable music appreciation; yet by unwittingly referring to the “public domain” of copyright law, Gould ironically describes what has since become one of the most hotly contested issues in the copyfight today: the gradual disappearance of the public domain amidst the “new enclosures” of corporate copyright exploitation and entrenchment. On this account, Gould’s remark that “the technology of electronic forms makes it highly improbably that we will move in any direction but one of even greater intensity and complexity” (352) is similarly right on the money, both in terms of the technics and the legalities now involved.

Yet despite his incisive (and sometimes inadvertent) recognitions of Big Media’s impositions, Gould remained consistently optimistic about the implications “that the mechanics of electronic creation and preservation will determine the large part of the future of artistically ordered sound — if that is a safe word than music” (“Forgery” 218).

In the electronic age the art of music will become much more viably a part of our lives, much less an ornament to them, and that it will consequently change them much more profoundly … The audience would be the artist and their life would be art. (“Prospects” 353)

As an iconoclastic icon of Canadian culture, Gould shared important insights about art, adaptation, and appropriation — not to mention “pluralistic values” — that have proven prescient and urgently critical to current debates over intellectual property, and how best to define and regulate it, among the fast-changing technoscapes of electronic media. In the face of the attempted lockdowns, confiscations, and extortions of Access Copyright, Bill C-32, ACTA, and so on, I take as a heartening affirmation Gould’s assertion that “there is, in fact, nothing to prevent a dedicated connoisseur from acting as his own tape editor … exercising such interpretive predilections as will permit him to create his own ideal performance” (348, my emphasis).

Works Cited

Benjamin, Walter. “The Work of Art in the Age of Mechanical Reproduction” (1936). Rpt. in Marxists Internet Archive, 2005.
Gould, Glenn. “Dialogue on the Prospects of Recording.” CBC Radio, 10 Jan. 1965. Rpt. in Time 4 Time [blog], 7 Oct. 2008.
—. “Forgery and imitation in the creative process” (1963). The Art of Glenn Gould: Reflections of a Musical Genius. Ed. John P.L. Roberts. Toronto: Malcolm Lester, 1999. 204-221.
—. “The Prospects of Recording.” The Glenn Gould Reader. Ed. Tim Page. New York: Knopf, 1984. 331-53.

See also:
“Glenn Gould on recording.” The Music of Man. Perf. Yehudi Menuhin, ,Glenn Gould. CBC et al, 1987. Rpt. at Youtube.

Bill C32 must allow for lawful digital lock-picking

@TonyClement_MP @MPJamesMoore @CharlieAngusMP @MPMarcGarneau C32 protects digital locks more than US law, ACTA; but digital locks are not IP
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@TonyClement_MP @MPJamesMoore @CharlieAngusMP @MPMarcGarneau C32 must provide for circumventing digital locks when for lawful purposes
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Bill C32, the Act to amend the Copyright Act, has passed second reading and is now in committee. There are solid gains for fair dealing in Bill C-32, but they’re meaningless if the bill remains inflexible on protecting digital locks: the technological protection measures increasingly placed on media content and devices. (See this CBC article for a good explanation of digital locks and what their protection in this bill could mean.)

The committee debating Bill C32 needs to keep hearing from Canadians about the major problem with the bill–and about its simple solution:

The problem:

Bill C32 protects digital locks more strictly than current US copyright law or even ACTA, and this protection trumps the bill’s otherwise substantial gains in fair dealing for Canadian consumers and educators. Furthermore, digital locks — TPMs, DRM, etc — are not intellectual property and should not be covered by IP legislation.

The solution:

Bill C32 should provide protection for circumventing digital locks when undertaken for lawful purposes. (As IP law professor Michael Geist says — in item seven of this article — this provision would still let Canada meet its obligations to international copyright agreements like WIPO and ACTA.)

Tweet or e-mail the committee members, as well as the ministers behind the bill, to let them know how to fix Bill C32, in order to protect flexible fair dealing for Canadians. Protecting fair dealing, not digital locks, is what will keep Canadian industry competitive, Canadian research innovative, and Canadian culture creative.

Charlie Angus (NDP) @CharlieAngusMP | Angus.C@parl.gc.ca
Kelly Block (C) @KellyBlockMP | Block.K@parl.gc.ca
Sylvie Boucher (C) Boucher.S@parl.gc.ca
Peter Braid (C) @peterbraid | Braid.P@parl.gc.ca
Serge Cardin (BQ) Cardin.S@parl.gc.ca
Dean Del Mastro (C) @mpdeandelmastro | DelMastro.D@parl.gc.ca
Marc Garneau (L) @MPMarcGarneau | Garneau.M@parl.gc.ca
Mike Lake (C) @MikeLakeMP | Lake.M@parl.gc.ca
Carole Lavallee (BQ) @Carolelavallee | Lavallee.C@parl.gc.ca
Dan McTeague (L) @danmcteague | McTeague.D@parl.gc.ca
Pablo Rodriguez (L) Rodriguez.P@parl.gc.ca

Committee chair: TBA

Objection to Access Copyright’s 1300% student tariff increase

[If you want to object, you’ve got until Wednesday. See Howard Knopf’s blog, or Michael Geist’s, for details.]

Dear Mr McDougall [gilles.mcdougall@cb-cda.gc.ca],

I am writing, as a university professor, to object to Access Copyright’s proposed Post-Secondary Educational Institution Tariff 2011-13.

AC’s sought-for fees are exorbitant and excessive; they will unfairly burden public education budgets; they will gravely chill Canadian research and teaching; and they seek to arrogate licensing authority over a set of rights and a repertoire (of digital content and everyday communication practices) to an organization, AC, that does not own either these rights or this repertoire (some of which are protected under fair dealing provisions, as decisions like that in the 14 May 2010 SOCAN “previews” case continue to uphold).

For a distance-education institution like Athabasca University, the fees and restrictions (as well as the consequently onerous record-keeping) being proposed by AC will acutely compromise our ability to teach and research effectively, and to fulfil our mandate of removing barriers to access to postsecondary education.

Thank you for fielding and registering this objection.

with best regards,

– Dr. Mark A. McCutcheon
Assistant Professor
Centre for Language & Literature
Centre for Integrated Studies
Athabasca University

Sent: 4:54 pm, 9 Aug. 2010

The SOCAN “Previews” case
IP lawyer (and AC member!) Howard Knopf: Access Copyright’s excessive $45 per university student proposed tariff – August 11, 2010 deadline
IP & e-commerce prof Michael Geist: “Access Copyright’s 1300% Tariff Increase – Deadline to Object is August 11, 2010”
TechDirt: “Access Copyright Wants $45 From Every University Student For Copying & Even Linking To Copyright Works”

Fix Bill C32: take 15 min. to read up, 5 to write

@TonyClement_MP @mpjamesmoore To preserve C32’s fair dealing gains, protect circumventing DRM when for lawful uses #fixC32

Speakoutoncopyright.ca now includes a concise, Unofficial User’s Guide to the Copyright Modernization Act, a.k.a. Bill C32. It also includes a handy guide for Taking Action.

That guide encourages you not to e-mail a form letter, but to mail your own comments to the cabinet ministers and MPs concerned (the guide helpfully summarizes each party’s approach, too).

What’s interesting in this latest bill is its glimmer of support for fair dealing. There’s a “Youtube” clause to permit noncommercial media remixing as fair dealing; there’s a $5K cap on damages for individual infringement (which is actually a win, given how the RIAA and MPAA have gone after individuals like Jammie Thomas in the US). Maybe Canadians are actually being heard on this issue: isn’t it pretty to think so?1 As Michael Geist told the Congress of Learned Societies in Montreal on Monday, this is a bill to fix, not one to kill. New protections for noncommercial copying and other forms of fair dealing are a good start. But the bill’s strong protection for “digital locks” like DRM would trump fair dealing when it comes to almost any DRM-protected content or hardware (they’ve made an exception for phones). For example, you couldn’t make your newly authorized Youtube video legally if it meant working around a DVD’s DRM to rip a clip. Digital lock provisions would always trump fair dealing provisions.

Yet the best overall fix may turn out to be dead simple.

Protect digital-lock circumvention when it’s done for lawful purposes. According to Geist, what Bill C32 needs most is just a single provision confirming that circumvention of a digital lock is not prohibited when undertaken for lawful purposes (that is, for private, non-commercial uses). This provision, Geist says, “would allow Canada to implement the World Intellectual Property Organization’s Internet treaties, provide legal protection for digital locks, and preserve the copyright balance.”2

Here are three other points I think worth bringing to the C32 debate. (Any other tweet- or postcard-size points you might make to #fixC32 would be welcome comment on this post.)

Make the fair dealing provisions broader and more flexible. Under Bill C32, they are still restrictive for educators, and they still fall short of US fair use norms (and that’s after over a decade with the DMCA). Given the polarized digital trends in higher education—towards open access on one hand, and device-tethered e-books, on the other—Bill C32’s “blanket provision against all circumvention … will lock down a vast amount of digital material, effectively preventing its use for research, education and innovation and curtailing the user rights of Canadians,” as the Canadian Association of University Teachers states in its response to the bill.

Extend the private copying levy to digital devices. If you want to get radical, support Charlie Angus’ proposal (from his now-dead private member’s bill) for extending the private copying levy already placed on blank storage media to digital devices (like iPods and laptops), which would address the concerns of creator organizations like ACTRA that C32 is insufficiently attentive to creators’ compensation.

Get Canada out of ACTA. No, not ACTRA: “ACTA,” or the Anti-Counterfeiting Trade Agreement, is a global agreement being secretively negotiated by several countries, but led by the US Trade Department and US Big Media lobbies. ACTA isn’t really about trade or counterfeiting, it’s about copyright, and it would effectively impose a punitive DMCA model of copyright enforcement on all participating nations. At least not all nations are participating. But Canada is. And by agreeing to ACTA, Canada would forfeit many of the important gains and compromises already in Bill C32. And even if Bill C32 is amended to permit digital lock-picking when lawful, if that were to be prohibited by ACTA (and all reports show it would be) then any such amendment would be moot. So Canada needs either to insist on provisions for lawful DRM circumvention under ACTA, or walk away from it.

So take a coffee break to read up on what’s at stake, then find another five minutes to send a short letter to the government, lauding what’s likeable in Bill C32, and suggesting how you’d fix it. Keep it short, clear, and hand-written.3

And while you’re at it, maybe tack on a P.S. that Canada should not only get out of ACTA, but also CETA as well

1. Note to Hemingway’s estate: call off your lawyers. I’m claiming satirical fair dealing.
2. One close reading of C32 argues that “lawful DRM-breaking” may already be protected: “Section 41.1(3) of the revised Act provides that statutory damages are not available to an owner who sues an individual for ‘breaking’ a digital lock when that breaking was done only for private purposes.” But reducing damages for private digital lock-breaking is not the same as prohibiting damages for it, and the numerous research- and teaching-related reasons that would justify circumvention by educational institutions remain criminalized. According to Geist, interpreting C32 like this cultivates a disrespect for copyright (and, I’d add, the law in general), whereas “making a sensible law” (i.e. one with clear personal and pedagogical provisions for lawful DRM circumvention) would build respect for copyright in law and in principle. (It’s worth reiterating that the principle of copyright has never been in question on this blog, only the increasingly exploitative character of its regulation. Thanks to Prof. Geist for making time to correspond on this question.)
3. Anyone remember handwriting? Now there was a DRM-free medium!