Question Copyright

Thanks to Jeff Ubois for bringing this one to our attention…

Internet users in France who illegally download too many times will risk having their Internet connection taken away by court order. No, I’m not making this up: read about it in The Guardian, Tech Crunch, The New York Times, and the French Pirate Party‘s page (with English) about it.

The French Pirate Party (PPF), at the above link and elsewhere, is doing a good job of articulating what’s wrong with this — aside from the fact that the content providers don’t need their own taxpayer-funded private police force anyway, that is. As the PPF points out, the new measure will result in:

• “filtering of internet content” (they have to watch you to catch you)

• the “creation of an independent authority, parallel to justice, able to terminate internet access of users, and to punish any ISP that wouldn’t comply” …and if that sounds like hyperbole to you, remember how utterly compliant state police forces generally are when the Business Software Alliance or local equivalent requests a raid — the PPF is absolutely right to be worried.

• “creation of a national directory of such ‘terminated’ users.” I haven’t read the new law, but I assume the PPF has and is reporting accurately. So apparently, once you’ve been caught — gasp! — downloading some bits you didn’t pay for, it’s clearly important to make sure you never commit this heinous crime again.

(There’s more translation at Bruce Sterling’s blog.)

I haven’t read the details of the new law, and at least one commenter thinks there’s less to worry about here than it might at first appear. But these sorts of state-industry alliances haven’t done too well for citizens in the past. It is highly unlikely that nuances of “fair use” (or whatever the local equivalent is — French law is different in this regard) will be respected. Many of the commenters pointed out how this law could easily be used for political censorship. One gave the example of unauthorized videos of police actions: if the copyright holder for the footage is a news organization with an interest in maintaining good relations with the government, then citizens who redistribute the images might now be risking their Internet connection

The best interpretation here is that the government of France has completely bought into industry propaganda about how artists need copyright to survive. That’s already pretty disappointing, especially in a country where the government itself funds so much artistic activity, thus belying the very assumptions on which this new law is based.

Bob Ostertag is a musician and experimental audio artist based in San Francisco. He has been performing and recording since the 1970s. In October of 2007, I interviewed him about the release of his new album, w00t, a collage of computer game sound and image that began as the sound for Special Forces, a live cinema piece by Living Cinema (Pierre Hébert and Bob Ostertag). Bob is one of a growing number of musicians who have decided to release their music for free Internet download. Even within this group, Bob is unusually progressive — or as I prefer to think of it, ahead of the curve: he chose a Creative Commons Attribution 3.0 license, which allows not only downloading at no charge, but the freedom to make derivative works and to make commercial use of the music, for example as the sound for a live performance for which tickets are sold.

In October 2007, I conducted the following interview with Bob about the album’s release. (Note: between our previous article by him and now, Bob joined the board of directors of QuestionCopyright.org).

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Karl: First of all, what’s the name of the album?

Bob: “w00t” [spells it out]

Karl: So were you yourself a devotée of the video games whose sounds w00t draws on?

Bob: Did I play the games?

Karl: Yeah.

Bob: No, no… I’m reluctant to admit that…

Karl: [laughs] Too late, it’s all part of the public record, it’s the front page of the New York Times tomorrow: “Bob Ostertag: I Never Played The Game”.

Bob: Yeah, me and JT Leroy, it’s all a hoax! Uh, no. But I’m very interested in the gaming phenomenon. My partner in this, John Cooney, actually designs games, and if you go to his website you’ll see that he puts up free, online Flash games, for which he’s very well known.

Karl: Do you happen to know if that’s “free” as in “all uses allowed”?

Bob: Yeah, you just play them online, and they’re fantastic, he’s been listed in many places. They’ve actually gotten very popular. He’s actually a former student of mine, the one I mentioned in my earlier article at QuestionCopyright.org, the one who got the cease-and-desist letters from corporate lawyers.

Karl: So there are two sort of copyright-related things going on here. One is that you use a lot of other people’s material, and two is that you decided to make the result of that use available itself under an open license, regardless of the license of the original material.

Bob: Yes, well, I wouldn’t say that my decision to put this under an open license is related to the fact that I make use of others’ material, because I put all my work under that license, whether I use others’ material or not. So the fact that I use a license that allows people share and download and copy is sort of a separate issue. Obviously, though, the fact that I decided to use terms which are pretty minimal also creates ideal terms for allowing works like this one.

Karl: It certainly frees you at the outset from any charge of hypocrisy. I mean, anyone could take this album and starting using it in their own mix.

Bob: And I would say that computer games absolutely pervade our culture, I mean, we’re really living a computer game, we’re all doing this on a daily basis.

Karl: …yeah, some of them just happen to have real missiles attached…

Bob: Yes. And particularly gamers, you know, every gamer lives in a collage of computer games right now…

Karl: By that do you mean that they just have a large set of games, or that the games themselves are composed of references to games that came before?

Bob: By that I mean that I think their life experience right now and their experience of games are pretty close to a collage. A real gamer doesn’t play just one game, they’re involved pretty deeply, actually, in a variety of games. A lot of gamers put so many hours into gaming, that the visual and audio landscapes of the games become part of their lived experience. So that’s what I mean. I don’t mean that the games themselves are collages of elements from other games, but I mean that if you’re a gamer, if you’re an avid gamer, the way you experience the world of games is pretty close to a collage already.

Karl:Yeah, I mean, I don’t play a lot of the games myself, but I talk to a lot of people who spend a fair amount of time gaming either on their own home console or they’re sort of taking part in virtual reality worlds that are games but also they’re places that you live, that become your mental space. Is the album sort of an attempt to make that mental space external, to express it artistically, and make it apparent to other people who don’t play these games?

Bob: Sure, that’s a fair description.

Karl: Have you ever done music for a game yourself, like been hired by the game company?

Bob: I have, yes. A long time ago, a long time ago. I mean it was trivial; I didn’t actually write anything, I just did the sound effects.

Karl: Was it satisfying artistically, or was just completely like, you know…

Bob: Yeah, it was a day job.

Karl: “I was young, I needed the money”, that kind of thing?

Bob: Exactly. Well, I wasn’t so young, but I did need the money.

Karl: [laughs] Would you say that your conception of what the album is is the same as your collaborator’s, or is he sort living in a different universe?

Bob: Oh I think pretty much the same. But you should ask him!

Karl: I’d like to. Is his email address in the email you sent me?

Bob: Yes, or you can contact him through his website.

Karl: Maybe what I’ll do is I’ll just send him a transcript of this and then he can just add comments, and then we can just post that. [We’ll invite John Cooney to comment. -KF]

Bob: Sure.

Karl: I think this is the first release you’ve done that is under a completely free license…

Bob: Yes.

Karl: …the previous ones were Creative Commons licenses, and I think they allowed derivative works but they didn’t allow commercial redistribution, is that correct?

Bob: Correct, correct. Also, all those previous ones had a prior life, they were first published in the traditional way, and then later I put them online for free download.

Karl: Are you going to have a printed CD with your own booklet and stuff?

Bob: No.

Karl: Oh! Okay, so I just download it, burn a CD, print the liner notes, put it in my own jewel case.

Bob: Yup. Or you just download it and put it in your own iTunes, or wherever you put your music. And the file that you download, if you put it into iTunes, it’ll actually display the artwork in the way that iTunes displays cover art, the same as if it were released commercially.

Karl: What made you take the jump from… I mean, using the previous licenses is a little bit more than testing the waters, it’s actually going pretty far, but this is really diving in. In terms of changing the terms to be, basically, anyone can do whatever they want with it, as long as they credit you.

Bob: Really, for my own terms, I’d pretty much just put it in the public domain. Because in a sense I feel like using these Creative Commons licenses perpetuates the myth that somebody might actually be able to enforce the terms that they’d like, which is actually not true.

Karl: Hmmm, that’s an interesting statement…

Bob: If somebody uses it and doesn’t credit myself or John, I have no recourse. I’m not going to, uh, hire a lawyer, I mean that’s just a myth. So in a sense, if I had my druthers I’d just put it in the public domain. But on the other hand, I support of the efforts of the Creative Commons, I want to be part of that overall effort. So even though by using the creative commons license I’m technically claiming rights which I have no means to enforce, and couldn’t enforce if I wanted to, I still want to be part of that, I want to support them.

Karl: You know, one thing that occurs to me is that, if by some chance somebody did use the stuff and pretend it was theirs, and not credit you, even though you might not hire a lawyer, you could make public stink about it, and in that case having the Creative Commons attribution license on sort of helps your cause.

Bob: But I could do that anyway.

Karl: Yeah, you could do it even if it were in the public domain. It just becomes a little bit easier.

Bob: The point is to make a moral claim. Having the license on doesn’t show how it got there, it would just be a matter of principle. But I could show that I had this thing up on the web at a certain date, then that would show that people that we did it.

Karl: Yeah, I don’t think it would make a legal difference. So do you think you might move to public domain for later works, or do you want to sort of stick with giving Creative Commons a public nod like that?

Bob: Oh, I think I’m comfortable with Creative Commons attribution license.

Karl: Last week Radiohead released their new recording, In Rainbows, for free Internet release. Do you see yourself as working in the same direction?

Bob: Well, no. Which is not to criticize Radiohead. I support any move towards free culture, particularly in terms of the Internet. But there are important differences between what they are doing and what I am doing here.

w00t is not available on the Internet for a limited time only. It is a free release. And w00t is not a one-time experiment. I have put all my music up for free download. Radiohead has made clear that intention is not to give away its music, but rather to “prevent it from leaking out to the public haphazardly over several months before the official CD release.” And that release will be a box set priced at $80! Whether this ultimately plays out as a move towards freer culture or a convoluted marketing ploy will have to be seen.

QuestionCopyright.org doesn’t normally focus on economic issues, concentrating instead on the suppressive effects of today’s copyright regime on art and creativity. But sometimes a story is just too good to pass up… or in this case, the juxtaposition of two stories.

The first comes from Patrick Ross, executive director of the Copyright Alliance (a strongly pro-copyright group whose backers include the MPAA, NBC, News Corp, Disney, Time Warner, the Business Software Alliance, and Microsoft).

Ross wrote an editorial for news.com entitled “Fair use is not a consumer right”. His editorial was a response to Computer and Communications Industry Association (CCIA)’s recent complaint filed with the U.S. Federal Trade Commission (FTC), alleging that the copyright warnings shown before most movies and broadcasts are intimidating and inaccurate. Which they are, of course. In the words of the CCIA:

“These warnings intimidate average people and hinder free expression…They depict as illegal many legitimate and beneficial uses made possible by the high-tech industry, and cast a pall over the high-tech marketplace…These ubiquitous statements often include gross misrepresentations of federal law and characterize as unlawful acts that are explicitly permitted by law.”

Patrick Ross, not surprisingly, takes the position that the FTC shouldn’t “regulate free speech” — that is, that the FTC should not impose any limits on how misleading these notices can be. (One wonders if Ross objects to other laws or regulations that prevent false advertising and misleading statements, or if he only objects to them when they affect copyright holders.) Ross writes:

I don’t think we want copyright warnings to become a fair use public service announcement. No, these warnings do exactly what they’re meant to do — notify consumers in a succinct fashion that infringement has legal consequences.

This is odd, considering that a paragraph earlier he wrote:

So, how exactly would the FTC rewrite these copyright notices to reflect a consumer’s ability to attempt a fair use defense? Should they paste in all of the above language? We’re wading into the area of providing legal advice, and these examples aren’t sufficiently detailed for that. We could have an IP lawyer fold in a treatise on fair use, and baseball announcers could start reading it at the seventh-inning stretch to make sure they finish it before the end of the game.

Apparently, notifying consumers that infringement has legal consequences is not “wading into the area of providing legal advice”, but notifying them accurately of what might actually constitute infringment would be. We wouldn’t want to wade too far in, now, would we?

Meanwhile, the other story is the CCIA’s recent study, whose title is self-explanatory: Fair Use Economy Represents One-Sixth of U.S. GDP.

I haven’t closely examined the CCIA’s methodology, though they do claim the study was done in accordance with World Intellectual Property Organization methodological standards. Since any study on the uses of works of the mind is bound to be fraught with definitional questions, and since many other copyright-related studies start from bogus assumptions and/or questionable data, fairness (as well as intellectual honesty) demands that this this study be treated with the same suspicion. Nevertheless, the CCIA deserves praise for focusing attention on a useful point: that the creative re-use of existing works is an important activity, economically as well as artistically.

I only wish the CCIA hadn’t concluded their press release with the usual appeal to the sacred cow of balance: “The dependence of industries outside the high-tech field illustrates the crucial need for balanced copyright law.”. Of course, we all favor “balance”, but the question is, what is being balanced against what? For Patrick Ross and the Copyright Alliance, too often it’s that “the rights of creators” need to be balanced against (presumably) the right of the public to certain limited uses. But that’s not the kind of balance we should be looking for, as a society. The purpose of copyright is to benefit the public, period. If there is any balancing to be done, it is only as a means, not an end.

We’ve often written here about how the copyright industry loves to confuse attribution with control of copying. The two are quite different, of course: plagiarism is not the same as the unauthorized sharing of properly-attributed materials. For example, when college students download songs from the Internet, they do not replace the artists’ names with their own. The vast majority of shared files are accurately credited, even when the copying itself is illegal.

But the industry knows that the public gets much more upset about misattribution (“Artists deserve credit for their work!”) than about illegal copying (“What, I can’t share with my friends?”). So industry representatives take the easy route and simply pretend that one is the other.

I hadn’t expected to see a New York University associate provost fall for the trick, though. Marilyn McMillan, Associate Provost and CITO at NYU, has published A Note on Illegal Downloading. It starts out with a few paragraphs purely about illegal copying, then takes a turn into truly weird territory…

We know that illegal downloading of music is a widespread practice. It has become an international phenomenon, one that is hardly confined to college campuses. Its allure is clear: why would you pay for something—a song to load on your MP3 player or a movie to load on your laptop—when you can get it for free with a little exploration and few keystrokes? And why would you not share something for free with friends?

In answering those questions, the University appeals to what Abraham Lincoln once called “the better angels” of your nature and to your commitment to the culture of scholarship.

As communities of scholars and learners, research universities—such as NYU—have two primary missions: to educate students and to create knowledge. This latter mission involves the production of original scholarship and research. Accordingly it is accompanied by an enormous respect for proper recognition being given to the creator of those ideas and knowledge. In higher education, it is considered a grave act to take another’s work without permission or attribution. At NYU, which also has large and renowned programs in the arts, this respect extends to the creation of new art.

Few in this community would uphold shoplifting CDs from a record store. And few would be content to see their own work—a paper, for instance, or a journal article, or a term project in a course—taken by someone else and used without permission.

Yet, in reality, that is what you do when you download copyrighted files illegally. …

What a coincidence: that’s exactly the same analogy Hilary Rosen (the former head of the RIAA) used to offer when talking on college campuses, and it makes no more sense now than it did when Rosen first tried it. Copying is not like shoplifting (when you copy a song, the original doesn’t go missing), and it’s not like presenting others’ work as your own, either. But if McMillan had stuck to the real issue and said “Few in this community would support post-publication sharing of other people’s papers and journal articles…”, well, she might have found some of her own faculty disagreeing with her: for example, the ones who support Science Commons, the Public Library of Science, and other academic organizations devoted to the idea that sharing knowledge is a good idea.

McMillan ends with this zinger:

The Internet has brought unimaginable access to information and extraordinary flexibility and opportunities for exploration and communication. NYU wants you to take advantage of all that. But, just as you abide by certain standards of behavior for scholarship and for University life, so, too, should you abide by high standards when it comes to the intellectual property of others on the Internet.

Is it too much to ask that a university stand for the spread of knowledge and culture, and that university officials distinguish between crediting and copying? Unfortunately, McMillan is not alone in believing that the prevention of sharing is part of a university’s mission. Consider proposed Amendment 2314 to the U.S. Senate Higher Education Act of 2007 (S. 1462). It would require institutions of higher education to monitor file-sharing, report to the Secretary of Education, and “provide evidence to the Secretary that the institution has developed a plan for implementing a technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property.”

If you’re a student or faculty member at NYU, please consider writing to Associate Provost McMillan, or pointing her to this article.

We had the pleasure of bringing Rick Falkvinge, founder of Sweden’s Pirate Party, on a U.S. West Coast tour in late July and early August, to talk about copyright reform and civil liberties. The Pirate Party is a political party based on radical copyright and patent reform, and it’s started to have an electoral impact in Sweden (see an early 2008 update).

While he was here, CNET News did an interview with him.

Videos of his talks are now available:

• Keynote speech at OSCON, the O’Reilly Open Source Conference (15 minutes), Thursday, 27 July. Note the audience member coming up to the stage right afterwards to press a campaign contribution into Rick’s hands!

• Stanford University (79 minutes), Tuesday, 31 July (or click here for audio only). This was a particularly good talk, because the audience had excellent questions.

• Tech Talk at Google (55 minutes), Tuesday, 31 July. A full presentation of the Pirate Party’s platform and strategy

• Berkeley CyberSalon (audio only), Sunday, 29 July. A panel discussion entitled “Copyright Reconsidered”, with Rick Falkvinge, Anthony Falzone, Mary Hodder, Fred von Lohmann, myself, and Jeff Ubois as moderator.

The article Publishing Renaissance by Allison Randal, over at the O’Reilly Radar, is a fascinating read. She describes how her press was able to publish its first book — helpfully, she gives actual numbers:

Print-on-demand technology allows individual books to be printed as they’re ordered, and shipped directly to the purchaser. The technology has developed to the point that the quality of a print-on-demand book is equal to the quality of a traditional printed book. This style of publishing is cheap. You generally pay a small set up fee, and then have no other expenses until the book actually sells, and then only pay for the printing. (The printing cost is about $1 per copy higher than a traditional printer at high volume, and cheaper than a traditional printer at low volume.) It cost me well under my goal of $1k to produce Gravitas from start to finish. With all this power at their fingertips, publishers could experiment much more freely with low risk.

She’s very clear on the point that the advantages publishers bring are in marketing and distribution. She also remarks on the larger pattern here:

We’re already seeing a democratization of online media, where blogs and wikis grow to be more frequent sources of information than “professional” media companies. It’s good to see a similar process in more durable media.

Further evidence, I think, that the separation of creation from distribution is really beginning to settle in…

This article is now superseded by The Creator-Endorsed Mark; please see there instead.

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Imagine if when you obtained a book (or a song or a movie), you could know whether or not the way you obtained it was explicitly endorsed by its author. Could you use that information to make better choices?

I think so. Here’s a scenario: you walk into your local copy shop and ask for a book you saw recommended on someone’s blog. Machines to print books on demand are already here (see the Bookmobile, for example), so let’s assume that printing up a book at a copy shop is a reasonable thing to do.

Under the current copyright system, the copy shop must have permission from the copyright holder to print the book for you. One way for them to get permission is to work out bulk deals with publishers, so that every time the shop prints a book, a certain percentage goes to the publisher (and then a percentage of that goes to the author). Another possibility is for copy shops to become publishers themselves, bypassing the traditional publishers and working out deals with authors directly.

But many other arrangements are possible, and as more and more information moves onto the Internet, we can’t predict what all such arrangements might look like, nor should we try. What we really need is a flexible framework in which authors and readers can experiment with different models, without being forced into distribution systems that are more restrictive than either party actually wants.

For example, some authors might prefer an approach that takes into account the fact that readers differ in price sensitivity. For such authors, a better arrangement with the copy shop would be to simply set a suggested donation. The shop tells the customer what the author’s suggested amount is, and the customer can include it in the final price, or increase it, or decrease it, depending on her needs and resources (the copy shop’s own copying fee sets the “floor” for the price the customer pays). The copy shop accumulates the donations and sends them in to the author by whatever means the two arrange, most likely an intermediary service.

Is this the best possible system for all creative works? Maybe, maybe not. The point is that it would be good for such experimentation to be not only possible, but easy. In that spirit, here’s a proposal for enabling experimentation.

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The Author-Endorsed Mark would be a single trademarked certification symbol that anyone can use to certify their distribution of a work, if the author (copyright holder) has given them permission to do so. In other words, the author is the licensor of the mark, and the distributor is the licensee. An author would allow use of the mark in order to say “These terms of distribution have been endorsed by the author of this work.”. Someone can still distribute the work without meeting those terms, but they can only display the mark if they meet the terms. The point is to provide information, instead of imposing restraints: the purpose of the mark is to allow recipients to know what channels and methods of distribution are endorsed by an artist, yet not restrict everyone to using just those channels (unlike current copyright law).

Currently, by contrast, we have a system in which recipients never have to think about the difference between an author-endorsed channel and a non-endorsed — but still legal — channel. Although this distinction could exist in theory, in practice we rarely get to choose. Instead, most channels are both legal and (implicitly) endorsed, since distributors must negotiate with copyright holders in order to distribute.

It doesn’t have to be like this, and some artists would actually prefer a more relaxed way. Instead of being forced accomplices in a system that shuts down anyone who hasn’t negotiated with them or their representatives, what if artists could offer audiences a way to merely distinguish between endorsed and non-endorsed distributions, and then let the audiences make their own choice? “Non-endorsed” needn’t mean “illegal”, it would simply mean that distributor has not met the author’s preferences, and therefore may not use the Author-Endorsed Mark. If there’s just one mark that everyone uses for this purpose, some percentage of people will learn to look for it, just as a percentage of people have learned to look for the organic certification symbol when shopping for food.

Artists’ preferences don’t have to be about money, either. Earlier, I used a suggested donation amount as an example of a preference, but it could just as easily have been quality of paper, or print resolution, or the presence or absence of advertising on a DVD, or various combinations thereof. The Author-Endorsed Mark is an experimentation enabler: it gives artists a tool to encourage some actions without prohibiting others. Some purchasers will follow the artist’s preferences, but others will try out different arrangements — arrangements that might unexpectedly please or benefit the artist. Instead of everyone being forced to act more or less in lockstep, the way they are today, we could open up the floodgates to a real diversity of systems, while still giving people the ability to make informed choices among those systems.

During a discussion of this proposal, Brian Fitzpatrick pointed out that it might be useful to have a “negative” version of the mark: a symbol you can (or must?) use when distributing something in a way that you don’t know is in accord with the author’s wishes. I think that’s a neat idea: it forces everyone involved in the transaction to be positively aware of the choices they’re making, but without preventing the transaction itself.

That might just be the great lesson of the Internet: information beats control, every time.