Amazon has rather quietly patented "an electronic marketplace for used digital objects".  It is rather difficult to understate the importance of such a concept.  First Sale doesn't apply to digital content.  Amazon knows that, so they have smartly focused on patenting the marketplace tool, because they know the battle to sell used digital goods will be huge and very public.  All the major players will get involved, as this is one of the thorniest issues out there.

But for libraries, Amazon's willingness to get in the game represents a huge opportunity.  If Amazon takes this fight on, the most logical approach would be to advocate for some form of Digital First Sale, which means we could potentially have the leverage we need to "buy" ebooks at a market value rather than the ridiculous licenses eating up our budgets.

But of course, we should learn from Amazon.  They are probably patenting this ahead of time and will build the software before taking on the fight, because they need proof of concept.  They need to demonstrate how they will not hurt the market or increase piracy- something that only Douglas County and the handful of libraries who have followed their example have done.  Libraries all over need to realize the importance of Amazon's approach. They are patenting the marketplace and building the ecosystem ahead of time, because they know they can't get what they want without it.  Our approach has been exactly the opposite.  We ofter abstract arguments and ideas, but have nothing on the table.  

Finally, don't think this makes Amazon one of the good guys.  Please recognize that this is another salvo in the battle for control of the digital economy.  There is no way of knowing if it will actually help us, as Amazon's needs simply happen to meet some of ours at this point.  We need better solutions and leadership on this issue or we will again be left further out to pasture and even less relevant than before.  

Well, it looks like Apple smashed Samsung in their epic court battle.  Sure, Samsung may appeal, but that can take a long time, and Samsung will need to continue making phones and designs in the meantime.  This puts quite a damper on their future decisions and on those of every other phone designer.

I do not have the legal expertise to weigh in on the decision, except to say that I found some of Samsung's core arguments quite compelling when one considers that they had prototypes in development before Apple ever launched iPhone 1.  But they lost and the implications for consumers are fairly serious.  This means that Apple has moved a step closer to copyrighting "form" rather than function.  Think of the classic Coke bottle I used as the illustration for this post (I know, you were thinking, what is wrong with this guy?).  This is a famous example of a copyright exception to the distinction between form and function.  Copyright has traditionally not let anyone copyright a "form" because it would give the copyright holder a complete monopoly.  No one has a copyright on a skateboard, because the basic form is essential to the function. If a skateboard company could copyright that shape it would destroy the market because no one else could make skateboards.  Instead the brand, logo, and art designs of the skateboards are trademarked.

But Apple has moved a step closer to copyrighting, patenting, or trademarking, a form with this case.  In the case of Coke it didn't really matter, because soda tastes the same regardless of the bottle- it didn't hurt the soda market or development of new sodas.  But this situation is more like my skateboard analogy.  In a world of massive innovation and development, the form of skateboards has remained relatively unchanged since the early 90s.  This is in spite of the fact that skateboarding is very closely connected to the tech community and is loaded with extremely innovative minds and creative thinkers.  In fact, everything in the sport has changed and progressed except for the basic form of the actual skateboard itself.  Even now when we are finally starting to leave the standard building material, hard rock maple wood, the basic form of the board is staying the same.  That is because the form of skateboards has reached its zenith, just like a hammer.  Hammers and skateboards aren't changing- and won't be changing- form any time soon.  They may end up with embedded video players, usb ports and other tech innovations, but the form will remain the same- because no other form is as good for their particular functions. 

This is what concerns me about Apple's push to control the form of the smartphone.  Because smartphones have developed a lot of similarities to skateboards and hammers over the past few years.  Think about what has changed about a smartphone and you will most likely be thinking display resolution, quad core chips, apps, and just about everything other than form.  Most of the changes in form are cosmetic.  Sure, they are getting bigger, but that is an issue of scale rather than form.  I ride a 32" long, 8.5" wide skateboard, but it is the same form as my old 7.5" I used to ride.  The difference is more like a preference for Coke over Pepsi.

On the positive side, I don't see how Apple could pull it off, and large well funded companies are always trying to find ways to leverage the law to artificially enhance their market. But with the current upheaval and unrest in the field of copyright (see my post quoting an outlandish statement by the copyright registrar) now is the best time for an extremely large and well funded company to accomplish this type of goal.  The best examination of the ruling from a consumer or techie perspective is at Extreme Tech.  It's a quick read and worth the time.

I subscribed to The Trichordist a few weeks back.  It's a group blog/website that focuses on content from the artists point of view.  I did this partially because I want to track what intelligent and reasonable people are arguing from the creator's side of the content wars (I do not include the Author's Guild in this group).  I also follow them because my ideas have been evolving as I have taken a deeper and more long term look at the economic impact of open content on creator's livelihood.  There are a few of us in the tech world that actually support creator's recognize the strength of their arguments...

Anyhow, they have a great post linking to an article in Torrent Freak (another site I follow about PayPal's decision to stop supporting sites that violate their Intellectual Property statement.

Read both the Thrichordist article and the Torrent Freak article and you can get a great snapshot of the distance between the two sides.  Libraries are stuck in the middle because we have always been open access by nature, BUT we have also supported Intellectual Property and author's rights too.  Unfortunately, too many librarians have simplistic conceptions about IP and copyright, which will not serve us we

Australia just struck down an ISP lawsuit that was backed by the MPAA, which demonstrates the critical importance of the anglosaxon tradition.  In direct contrast to the legal tradition that has governed US copyright (and so beneficial to libraries), are recent statements by Maria Pallante, recent US registrar of Copyright:

Copyright is for the author first and the nation second (must have log in or access through database)

This statement is about as inaccurate as it can possibly be, and exploded across the blogosphere when it was discovered.  This is the French or continental understanding of copyright, but not ours.  The US tradition would reverse the order: nation first, author second.  I hope all librarians become aware of the powerful forces Hollywood (and others) is deploying against us.  They do not want First Sale to survive.  And we have few resources other than our legal history, which could be cut out from under us in the next 10 years.  For more on this watch this interview by representative Lofgren with Maria.  Lofgren and Issa both show an openness to our side of the issue, which is great, as we will need bipartisan support: