Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Hedy & George: Art, Tech, & IP

In 1997, the Electronic Frontier Foundation bestowed its prestigious Pioneer Award upon an 82-year-old movie star and posthumously to an avant-garde music composer.  The movie star was Hedy Lamarr, the composer was George Antheil; and their collaboration as amateur inventors during the early days of America’s entry into World War II led to a working model for a signal transmission method known as “frequency hopping,” which sits on a technological timeline that currently ends in in the palm of your hand, if you’re using a wireless device to read this.

Frequency hopping is a means by which a transmitter and receiver shift in synch with one another from frequency to frequency within a given bandwidth. This method of transmission is the basis for our ability to have millions of cellular phones and wireless signals that are resistant to interference from other signals and from one another.  In the late 1930s, the Viennese beauty, born Hedy Kiesler turned Hollywood starlet Lamarr, was spending much of her spare time at home, foregoing the industry party scene for her drafting table, where she tinkered in the tradition of the natural inventor who has no formal training.  By 1940, Hedy, who loved her adoptive country and had many personal reasons to know how dangerous the Nazis were, set her mind to the problem of the deadly fleet of German U-Boats preying on ships in the Atlantic.  And the unusual confluence of events that brought Hedy’s ideas together with George Antheil’s uniquely relevant experience is told in a wonderful book called Hedy’s Folly, by Richard Rhodes.

When Hedy Kiesler was still in her early 20s, she temporarily left the acting career she’d begun in her teens to marry a wealthy and powerful, Austrian arms manufacturer named Fritz Mandl.  Finding herself trapped in a gilded cage, however, Hedy literally escaped from the overbearing Mandl in 1937, running almost directly into the embrace of motion pictures, signing a lucrative contract with Louis B. Meyer. Rhodes assumes that as Mandl’s wife, Hedy very likely learned a great deal about munitions from conversations between her husband and his many associates. Mandl treated his young bride as though she were just another decoration in his mansion, but Hedy’s father had instilled in her his passion to understand how things worked.  Behind the gorgeous face was a mind paying very close attention to Mandl as he helped build the German war machine.

At the same time, New Jersey-born pianist and composer George Antheil was living in Paris supported by a wealthy, American patron.  Antheil’s riot-inciting works include the composition Ballet mécannique, originally begun as the score for the avant-garde, futurist film of the same name that is today required viewing for many film students.  Ballet mécanique, as the title might suggest, sounds as though a factory has attained consciousness and begun to make music and dance.  A performance of the composition requires such industrial apparatus as saws, electric bells, and an airplane propellor; and Antheil’s original hope for its debut was to synchronize sixteen player pianos, although he eventually settled for eight.  It was Antheil’s work to get multiple pianos to play in synchronization that set the mechanical framework in his mind for taking Hedy’s ideas and “reducing them to practice” as the patent law requires.  But first they would have to meet.

Hedy went to Hollywood to escape the emptiness of life with Fritz Mandl and to rekindle the passion for acting she’d cultivated from childhood. George Antheil and his wife, always living one meal to the next, moved to Los Angeles partly because the warm weather was good for George’s health — he suffered from bronchitis and asthma — and partly due to a change in copyright enforcement on existing music compositions.  With sound film just emerging and the young ASCAP pressing the rights of composers and songwriters, the studios, which also owned the theaters, were going to have to pay new royalties to record and exhibit existing scores with their films.  This led to a new demand for composers to create original film scores as works for hire, which led to a new source of revenue, albeit never a great one, for George Antheil.

Meanwhile, in the North Atlantic the SS City of Benares, carrying among its passengers 90 British children being evacuated away from the brewing war, was torpedoed by a German U-Boat.  According to Richard Rhodes, Hedy was deeply moved by the story of “seventy-seven children drowned in twenty-mile-per-hour winds in the bitter North Atlantic, killed by people who spoke her native language and whose country had forcibly annexed her native land .  . .”

America had not yet entered the war when Lamarr and Antheil were collaborating on their design for a torpedo that could be radio-guided to its target and avoid enemy signal jamming by hopping frequencies in an undetectable pattern.  At the time, reports Rhodes, American torpedoes were about sixty-percent duds, prone to missing their targets and ill-timed detonation.  Nevertheless, in the Winter of 1942, the US Navy declined Hedy and George’s torpedo design on the grounds the mechanism was too complicated and too heavy, neither of which makes much sense on the face of it.  That same Summer, their system received a patent, and at some point — the record is still sealed — the Navy acquired that patent.  Make of that what you will; this is another story.

Hedy Lamarr and George Antheil were a pair of passionate, often-rebellious, artists who were equally passionate about a variety of sciences and technologies.  The patent they received never earned either of them a dime, and their contribution went largely unnoticed for many decades, well into the development of signal transmission technologies we now consider the foundation of the Information Age.  At the time, of course, both were motivated by a desire to do their part in fighting fascism and the rising terror of the Nazis, but George Antheil certainly could have used some financial stability in his life.  Hedy, of course, made millions as a young movie star, but in her later years, most of that fortune had been diminished by California community property laws divided among several divorces.  In fact, according to Rhodes, most of the $3 million estate she left to her children was from a combination of smart investments and settled lawsuits “against corporations that tried to exploit her name and image.”

Hedy’s receiving the EFF Pioneer Award was the result of advocacy by Retired Army Colonel Dave Hughes, who had won the same award in 1993 for his work in early computer networking. Hughes had come across the Lamarr-Antheil patent in his own research, but according to Rhodes, he “smelled sexism” in the engineering community’s early resistance to recognize Lamarr.  The colonel, who had a boyhood crush on the movie star, was convincing; and the award was granted with Hedy accepting graciously via recorded message.

George Antheil died of a heart attack in 1959, and Hedy Lamarr just barely fulfilled her desire to live into the new millennium, passing away in January of 2000.  That particular year, one winner of The Pioneer Award was Tim Berners-Lee, who is credited as the inventor of the World Wide Web. Unfortunately, this technology we call the Web has often made antagonists of artists and technologists, except not really.  There have been artist/inventors throughout history because the instinct to create is the same and the processes are so similar.  The artist and the scientist are both problem solvers and truth seekers, co-dependent on one another as society is dependent on both of them.

Happy Memorial Day Weekend to my American readers.

There’s no such thing as used digital media.

It’s science.  Deal with it.

We hear an awful lot about how copyrights on creative works “stifle innovation,” preventing new business opportunities from launching or thriving. And the self-serving advocates of these “new” ideas love to describe those of us who question their proposals as anti-technology, anti-progress, stuck in old models, and so on.  But the idea that a digital file of a song, a movie, a book, etc. can ever be called “used” is nothing more than an attempt to transplant a very old model into the soil of a new, technological market.  So, who’s being anachronistic here?

On purely technical grounds, there is literally no such thing as used digital media because “use” does not in anyway degrade a file.  A digital file of a song or a movie plays as pristinely the millionth time it’s played as it does the first time it’s played.  If you worked in video post-production in the days of early digital tape media, you would have seen a new term affixed on the spines of those tapes — clone.  Because that’s what a digital “copy” actually is; it is an exact replica with no generation loss from the original source.

So, if you transfer a file of a song or a movie to someone else, it will not in any sense be “used” simply because you experienced it before someone else did.  The new “owner” of that file will have a brand new experience, the value of which is identical to the original “owner’s” purchase price of the file from the original distributor.  If we’re talking about a movie, for instance, the only thing that differentiates Viewer A from Viewer B is that the former has seen the film and the latter has not.  Yet, the logical argument being made by certain “new model” entrepreneurs is that Viewer B should be entitled to pay less for the identical experience simply because Viewer A has already paid the original price one time.  This is patently absurd. By the same logic, the ticket price for a movie in a theater ought to decrease incrementally after each screening because the film has been “used” by other viewers. (Yeah, somebody in the copyleft crowd just thought, “Hey, that’s a good idea!”)

This notion of “used” digital media is just one way in which technological opportunists can be disingenuous when it comes offering up what sound like market-based theories.  They want the luxury of cherry picking from both the past and the present as suits their purposes.  In reality, though, these ideas don’t come from particularly innovative technologists, but rather from standard-issue middlemen looking to exploit a consumer-serving limitation on copyrights to siphon value from creators and line their own pockets.  In the long run, though, transporting this doctrine into the digital market, which makes no rational sense, would likely drive prices up in what I’ll call first-user experiences in order to offset lost revenue.

Naturally, when a work is distributed on physical media, the notion of “used” remains intact.  First sale doctrine in copyright law says that I can buy a novel and then sell the book as used at my next yard sale, regardless of whether or not I read it to a dogeared pulp or kept it in pristine condition and never cracked it open.  The condition of the book may affect the second-market value in my yard sale, but it has no bearing on my right to sell or otherwise distribute the used copy one time.  Because this transaction involves a physical object, replicating the process even in tens of thousands of yard sales all over the country would never produce a secondary market for novels that clones the primary market and inherently reduces the value of all novels everywhere.

But this is exactly what would happen in an all-digital “used” market in which a middle-man like Amazon, Apple, or Redigi removes a previously purchased file from Consumer A’s computer, sells it to Consumer B for a lower price than the original, and profits from the transaction while kicking a little something back to Consumer A.  Never mind how easy it would be for the selling consumer to cheat that system by storing files any number of ways, the so-called “secondary” market would very rapidly become the primary (i.e. only) market, and therefore just another means by which tech-happy leaches artificially drive the value of creative works below sustainable levels while pocketing millions before the producing entities collapse.  (Anyone who just thought “Good, I can’t wait until the movie studios, record labels, and publishers collapse,” should understand that it will be the independent, small and mid-sized producers who will fail first.)

I find it hard to believe that any legislator or court would be bamboozled by the parlor trick in which a file is moved from one consumer to another through the resale transaction without making a “new copy.” This is an analysis of the state of the technology and its role in the market viewed through a pre-digital lens, semantically bogged down in irrelevant terms like “copy” while ignoring how the technology actually works and what its potential market impact can be for good or bad.  So, if we’re really talking about developing new business models that correspond with new technology, then the language we employ might have to be new as well.  And in the digital world, the word used has outlived its usefulness.

NPR Reports Teens Reading Less

It’s a longstanding cliché we parents repeat that our kids can have more fun with a box than with the toy that comes in the box.  It’s still true, and we still don’t trust our own wisdom in this regard because presenting a kid with an empty box for his birthday or some other occasion is a risky bet that I personally have yet to make with any of my own kids.  I’m also as guilty as many parents out there who’ve gifted children with tablet “readers” that are admittedly used most of the time for every feature they offer except reading.  We do limit our kids’ time with devices and computers, and when they have to read or choose to read, they still pick up physical books most of the time.  This is partly because we just happen to have a lot of books in the house, but there remains something to be said for narrowing the range of options in one’s periphery or at one’s fingertips in order to derive the most enriching experiences.  Sometimes, you just gotta sit and study the empty box for a moment before you discover its many possibilities.

This story from NPR reports that reading among teens has sharply declined over the last decade, according to a study by Common Sense Media.  Jennifer Ludden’s report emphasizes the need for parental involvement in helping kids learn to moderate their use of devices that offer so many attractive diversions and eat up time that might be spent exclusively reading.  The story caught my attention of course because it is yet another example of why more access to something like literature does not automatically result in an increased benefit to society.  Technology companies that want to scan every book ever written “for the greater good,” and copyright critics who cry foul over the volumes of works not yet in the public domain are ignoring the fact that society will not necessarily behave according to the idealism they promote.  Personally, I don’t think it’s counterintuitive that more books more cheaply available through more portals can fail to produce more literacy.  There are too many factors at play that determine a teenager’s or young adult’s choice to read for pleasure, and the many diversions offered by eReaders and other devices is just one of these factors.  I’d certainly stop short of outright blaming digital technology for driving down reading; but at the same time, anyone who says more has to be made available for the “good of the people” is either very naive or more likely has a multi-million-dollar axe he’s looking to grind.