Understanding Free Content

Content is an unlimited resource. People can now make perfect copies of digital content for free. That's why they expect content to be free — because it is in fact free. That is GOOD.

Think of "content" — culture — as water. Where water flows, life flourishes.

content is free, like water in a river

Containers — objects like books, DVDs, hard drives, apparel, action figures, and prints — are not free. They are a limited resource. No one expects these objects to be free, and people voluntarily pay good money for them.

containers are not free

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Going on the Offensive: Abolition or Reform?

going on the offensive

How bad is the current copyright system? Should we push for abolition, or just radical reform?

Both. There are many people for whom abolition is too large a step, at least right now, but who see how broken things are and are willing to consider even drastic reforms. A reader recently pointed to a particularly good article entitled Some thoughts on a "Copyright Offensive". As he wrote, "We need a set of proposals that we can push. They need to be such that they can make the situation better. They need to be such that we can reach a compromise on them that will still make things better."

In that spirit, here's a proposal, loosely adapted from the one in that article:

  1. Restrictions do not come free; they require eventual registration. If a work is to be under restrictive copyright, then within two years after publication, it must be marked and registered with the copyright office. (Registration can be done electronically now, so this is no longer the burden it was when the United States ceased to require registration as part of the conditions for joining the Berne Convention.)

  2. Once a work is registered, there is a yearly tax to maintain the copyright That is, charge a fee for the maintenance of monopoly privileges, just as in other industries.

  3. The copyright tax is 1% of the value of the covered work, as declared by the copyright holder. The holder is motivated to declare an honest value by having to agree to liberate the work (make it public domain or sharealike) on payment by anyone of the full declared value. The holder may adjust the declared value up or down upon reregistration each year; the fee is recalculated accordingly. See Balanced Buyout for details.

  4. Copyright lasts for 10 years, then the work converts to sharealike or the public domain, at the holder's discretion. If the holder does not declare a preference, the default is sharealike.

  5. Sharealike terms do not expire.

  6. Separate laws to protect attribution, independently of copyright. Attribution laws would apply equally to copyrighted, sharealike, and public domain works, since authorship is independent of copyright status.

Comments welcome.

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"Creatorism" and the Rise of Speculative Invoicing.

Portrait of Dirk Lasater

While most of our work at QuestionCopyright.org addresses artists and audiences, we're also always on the lookout for good pieces intended for the legal and policy research communities. When lawyer Dirk Lasater asked if we'd be interested in publishing these excerpts from his article “Closing Pandora’s Box: Speculative Invoicing and Opportunism in File Sharing”, we jumped at the chance.

What Lasater describes below is moral hazard: the inevitable abuse of a system that is optimized for large-scale, monopolistic, predatory behavior. Of course, he is more circumspect in his language, as befits someone writing for a legal journal — but read the excerpts yourself and see if you can come to any other conclusion.

In his full journal article there is also a Proposed Remedies section, with some suggestions that ought to be uncontroversial: an amendment to the DMCA requiring a "statement that the complaining party has examined the purported infringement and believes in good faith that there is no potential fair use or exempt use, as defined by this Act, of the alleged infringer", and, even more importantly, this amendment:

Unless otherwise provided, any person who threatens a lawsuit by mail, electronically, or in person; or any person who issues requests for pretrial settlement of infringement claims after obtaining a subpoena under this section and who knows, or should have known, that the alleged settlement was based on false statements or misrepresentations, including material omissions, shall be liable for any damages, including costs and attorneys’ fees incurred by the alleged infringer, and any damages including costs and attorneys’ fees of any service provider who is injured by such conduct as the result of the service provider relying upon such subpoena in removing or disabling access to the material or activity claimed to be infringing, or in disclosing the identity and private information of the alleged infringer. Treble damages shall be available in cases of willful or wanton disregard by the party obtaining the subpoena.

The idea that those who commit copyfraud should have to pay for the inconvenience they cause others is not new. What is new is the careful drafting Lasater brings to the proposed solution. He's not just saying it would be a good idea to amend the law so there are penalties for copyfraud — many people say that. But Lasater actually drafts the amendment, and backs it up with the kind of legal analysis and history that one wishes went into all legislation.

Biography: Dirk Lasater is a practicing lawyer in Winston-Salem, NC with an interest in intellectual property issues. He is currently working in a temporary capacity as he looks for a permanent legal position in some area of commercial transactional or intellectual property law. Dirk received his bachelor’s degree in the Classics from the University of Florida and earned his Juris Doctor from the Wake Forest University School of Law in 2011. From 2010-2011, Dirk served as the Editor-in-Chief of the Wake Forest Journal of Business and Intellectual Property Law. He has published various blogs on copyright law and has also authored two academic articles, one of which focuses on the competing concurrent use of virtual trademarks on the internet, and the other on the practice of speculative invoicing, portions of which are reprinted on Questioncopyright.org. While in law school, Dirk interned at Novant Health, Inc., a regional health care system, and also volunteered for two years as the Assistant Director of the Wake Forest Innocence Project where he worked on actual innocence claims and reintegration of recently released prisoners.

These excerpts are part of a larger article, “Closing Pandora’s Box: Speculative Invoicing and Opportunism in File Sharing” from the Fall Issue, Volume 12-1, of the Wake Forest Journal of Business & Intellectual Property Law. The author and Question Copyright thank the Wake Forest Journal of Business and Intellectual Property Law for allowing these portions to be published here under a Creative Commons Attribution license.

Author's Introduction

The Pandora’s box of file sharing as it currently exists has found renewed presence in public consciousness over the course of the last five to ten years. While dormant through much of the late 2000s, the government and content owners have begun a full court press aimed at preventing the free sharing of movies and music on the internet. The most recent action against Rapidshare and the grass roots rejection of SOPA and PIPA have brought internet related issues back into vogue, and have directed attention to the speculative invoicing approach to copyright enforcement used quietly and persistently over the last five to ten years. Following Napster’s demise, internet technology has continued to advance, with file sharing use skyrocketing and enforcement regimes struggling to keep pace.i Historically, as content owners and the RIAA searched for ways to close Pandora’s box, they targeted file sharing websites such as Napster, Grokster, and Limewire, and, in tandem, sued individual end users.ii While the content industry has had some success on both of these fronts,iii resolution of the larger problem has not been realized, Pandora’s ‘evils’ are out of the box, and all efforts are beginning to look like a seemingly futile attempt to prevent online file sharing.iv

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What Is Free Culture?

Question Copyright symbol ("C" inside a question mark)What is free culture?

Free culture is a growing understanding among artists and audiences that people shouldn't have to ask permission to copy, share, and use each other's work; it is also a set of practices that make this philosophy work in the real world.

The opposite of "free culture" is "permission culture", which you probably don't need to have explained in detail because you're familiar with it already.  In the permission culture, if I write a book and you want to translate it, you have to get my permission first (or, more likely, the permission of my publisher).  Similarly, if I wrote a song and you want to use it in your movie, you have to go through a series of steps to get clear permission to do so.  Our laws are written such that permission culture is currently the default.

In free culture, you just translate the book, use the song, etc.  If I don't like the translation or the film, I'm free to say so, of course, but I wouldn't have any power to suppress or alter your works.  Of course, free culture goes both ways: I'm also free to put out a modified copy of your movie using a different song, recommend someone else's translation that I think is better, etc.  These are idealized examples, for the sake of illustration, but they give the general idea: freedom takes precedence over commercial monopolies.

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How To Free Your Work

(Translations: Español)

Free your work!

I. Theory:

Why should you Free your work? To make it as easy as possible for people to share your work — as easy as possible for your work to reach eyeballs and ears and minds — to reach an audience.
And to make it as easy as possible for audience support — including money — to reach you.

Forms of audience support include:

  1. Money – Audiences want to support artists they like. A “Donate” button gives them an easy mechanism to do so. Audiences buy merchandise from artists they like for the same reason. Give them a “Reason to Buy” and they will.
  2. Work – some fans can make web sites, sell merchandise at concerts, help with promotions, etc. If you need help, ask your audience first. No one is more motivated to help you than your true fans.
  3. Promotions – word of mouth recommendations are the most effective form of promotion, and audiences do this without coercion if they like a work.
  4. Distribution – often called “piracy,” this is an extremely valuable service. Distribution without audience assistance is expensive: imagine if you had to pay for every copy of your work (as in paying for a print run of paper books, or plastic discs), and then store and distribute them to every potential audient. Want 1,000 people to hear your song? Imagine if you had to pay at least $1,000 up front for even the chance – not including costs of storage and shipping. You can then of course charge them for the privilege of hearing your song, by selling them discs – but this cost barrier makes it even less likely they'll want to hear it. When the audience distributes your work for you, they bear the costs of making and sharing copies, not you. Audience Distribution costs you nothing.
  5. Archiving – the cost of privately archiving your own work is very high; fans do it for free. The Freer the work is, the more robust its archives will be, especially as technologies and formats change. CDs and DVDs may become obsolete, but fans migrate works from one format to the next, ensuring they're always accessible and up to date. Example: copy-restricted films are distintegrating in cans. Digitizing them is expensive; digitizing them without permission is too risky to invest in. Without audience help, these costs must be borne exclusively by the “copyright holder.” Digital archive formats are notoriously unstable; many hard drives from even ten years ago are incompatible with today's technology. Video codecs change rapidly, and no one knows which codecs will remain in use, and which will become obsolete. A private rightsholder must continually research what new formats are evolving, and make sure to migrate their archives. They are still likely to miss some format changes; it's very hard for a single entity to stay abreast of every diverse technological innovation. Analog formats are safer, as they don't change as rapidly, but 35mm film archiving is extraordinarily expensive. The negative must be transferred to archival films, then stored in a secure facility. If anything happens to that facility, or rents aren't paid, the archive is lost. In contrast, Free Culture opens the possibility of the most robust, decentralized, up-to-date archiving system ever: the audience and all their devices.

Copy restrictions place a barrier between you, the artist, and most forms of support. By removing the barriers of copyright, you make it possible to receive money and other kinds of support from your audience, both directly and through distributors, thereby increasing your chances of success.

II: Practice: How To Free Your Work

  1. Get your own web site.

    There are countless ways to make a web site, from hiring professional designers and technologists, to getting a free blog. Assuming you're broke and have no tech skills, here's the easiest way to do the latter:

    1. Sign up for a Wordpress blog here. It's free and easy. 
    2. Follow instructions from there

    That's it. Your own web site, free, with loads of templates to choose from and lots of help from wordpress. That's all you need! You can certainly get more advanced from there, but that will require more skills, time, and/or money. A free Wordpress blog is more than enough to get started.

  2. Get PayPal, Flattr accounts. Place “donate” and “Flattr” buttons on web site.

    To receive money online, you will need a money-receiving account. Here are some you can sign up for - click the link(s) and follow instructions.

    PayPal (recommended) - easiest to use, and allows anyone to accept donations.

    Amazon Payments - a little more comlplicated. This is also the payment system used by Kickstarter.com

    Google Checkout - only allows registered 501(c)(3) or 501(c)(6) tax-exempt organizations to receive donations

    Once you have a PayPal account, you can generate a donate button for your web site.

    In addition to PayPal, you can also get a Flattr account. Flattr combines a donations system with social networking to create a hybrid that's both fun and hard to explain. Visit Flattr.com for more information.

  3. Choose a Free License.

    A Free License is legal language that sits on top of copyright. In our current copyright regime, everything is copyrighted whether you want it to be or not. What I'm writing here is copyrighted, even though I don't want it to be. There is currently no way to “opt out” of copyright. All I can do is attach a “Free License” to the work, that grants users some of the fredoms that copyright automatically takes away.

    A Free License guarantees the Four Freedoms of Free Culture:

    1. The freedom to view, hear, read, or otherwise attend to the Work;
    2. The freedom to study, analyze, and dissect copies of the Work, and adapt it to your needs;
    3. The freedom to redistribute copies so you can help your neighbor;
    4. The freedom to improve the Work, and release your improvements to the public, so that the whole community benefits

    Creative Commons is the most famous brand of Free licenses, however most Creative Commons licenses are not Free! Just because a license is branded Creative Commons does not mean it's free. In fact most Creative Commons licenses have restrictions that are incompatible with Free Culture.

    The 3 Free licenses Creative Commons offers are:

    CC-BY-SA,
    CC-BY, and
    CC-0
    .

    If you see the letters -NC or -ND anywhere in a Creative Commons license, it is not a Free license. Be careful – use only one of the above Creative Commons licenses, otherwise your work will not be Free and you may alienate those fans who could help you the most.

    Other Free licenses for cultural works include the Free Art license and the WTFPL.

    Because all licenses ride on top of copyright, they can be seen as validating or extending the reach of Copyright law. For those who are totally fed up with existing laws and the interference of lawyers in the cultural sphere, a “non-license” may be preferable. Non-licenses are not licenses, they are statements of intention: that the artist wants their work to be copied. They don't ride on top of any existing laws, and attempt to avoid law (and the state force that backs it up) altogether.

    Our favorite un-license is the Copyheart, which looks like this:

    ♡ Copying is an act of love. Please copy and share.

    But there are others, like Kopimi, and of course you can write your own!

    Whether you use a lawyer-approved Free License or a non-license, it's crucial to let your audience know they are Free to copy, share, and build on your work. While it's tempting to ignore copyright altogether, your audience can't know your work is Free unless you tell them. Try to include either a notice of Free license (i.e. “CC-BY-SA”) or a Copyheart message (“♡ Copying is an act of love. Please copy and share") wherever you post your work.

    More about Free vs. unFree licenses here:
    http://freedomdefined.org/Licenses/NC

    questioncopyright.org/CC-branding-confusion

    http://blog.ninapaley.com/2010/08/31/four-freedoms-of-free-culture/

    http://robmyers.org/weblog/2006/11/why-the-nc-permission-culture-simply-doesnt-work/

    http://robmyers.org/weblog/2008/02/noncommercial-sharealike-is-not-copyleft/

  4. Upload master file(s) to archive.org.

    Archive.org upload FAQs

    When you upload a work to archive.org, you will see a dialog page like this:

    archive.org upload info fields

    Fill out the fields (unlike this example, you should include a link to your web site in the "description" box!), then click "choose a license." Archive.org lets you attach both Free and un-Free Creative Commons licenses to uploaded works. It is very important you specify a FREE license during the upload process.

    Archive.org does not let you specify licenses by name; instead they give you a dialog box and ask you to check options. To specify a Free License, you must choose either CC-BY-SA, CC-BY, or CC-0.

    To specify CC-BY-SA, check the options as follows:
    Allow commercial uses of your work? YES
    Allow modifications of your work? YES, as long as others share alike

    choosing cc-by-sa in archive.org upload dialog

    To specify CC-BY, check the options as follows:
    Allow commercial uses of your work? YES
    Allow modifications of your work? YES

    choosing cc-by in archive.org upload dialog

    To specify CC-0, click on the CC-0 link.

    Once you've selected your options, click "Select a License." You should get a box that looks like this:

    archive.org cc-by-sa confirmation box

    Once the upload is complete, click "Share My File(s)". Archive.org will create a page for your work that will look something like this:

    Nina Paley's "Avatars of Vishnu" page on archive.org

    Copy the URL of your archive.org page, and link to it from your web site and everywhere else. For example, the URL of the page above is http://www.archive.org/details/AvatarsOfVishnu

  5. Place link to archive.org page on web site. Also write about the work, and post versions directly on web site if possible.

    You want your work to be as easy and convenient to copy as possible. A text is likelier to be read if it's formatted for existing browsers and eReaders. A song is likelier to be used in films, videos, dances and remix projects if it's available in high quality .wav; it's likelier to be shared by fans as an .mp3 or .ogg. Images are most easily shared on web sites as low resolution jpegs and .pngs, but they can have far more applications as vector files (.svg, .eps) and high resolution TIFFs. Ideally, release your work in as many formats as possible. 

    But how do you do that? Reformatting can be a real pain, and how do you even know what file formats your audience wants?

    This is where fans come in. Ask your fans for help - even if you only have one fan, or a small handful. Release a master file and ask them to convert to other formats. If you're a musician, upload an uncompressed .wav file of a song on archive.org. Then ask fans convert it to .mp3, .ogg, and other formats and repost those on archive.org, as well as everywhere else they can share the files.

    I released “Avatars of Vishnu” illustrations as high resolution .png files. A fan immediately converted them to .svg vector files.

    Once fans know you're releasing your work under free licenses, they may convert your files to more useable formats as a matter of course. In addition to providing a valuable service, this work strengthens the bond between fan and artist; what Mike Masnick calls “CwF” (“Connect with Fans.”)

  6. If work is a video, upload it to Youtube and Vimeo in addition to Archive.org. Include links to archive.org page and your own web site in “description” field (see example). Embed the video on your own site.
  7. PROMOTE. Tell all your fans. Ask them to spread the word. If you have Twitter, Facebook, and other social network accounts, post that your work is up and Freely available. Make sure to name the specific license (ie, CC-BY-SA, not "Creative Commons"), so they KNOW it's Free. Include link to your web site.

    The Internet isn't for everyone. Not everyone wants to spend time on FaceBook, or Twitter; not everyone “gets” them. Not everyone wants to blog, or email, or whatever the kids are doing these days. One solution is to force yourself to learn how to use these tools, but there is another option: ASK YOUR FANS TO DO IT FOR YOU.

    If you're a musician who gives live concerts, ask for “social media” volunteers at your next performance. If you're an artist who dislikes the Internet, but goes to openings and parties and networking events in Real Life, put the word out among your friends, fans, and patrons. If you teach, let your students know you're looking for help. Others can take care of online promotion for you – if you let them. The best way to let them is to give them a stake in your art, and not try to control them. Once again, Freeing your work is the key to receiving this service. Then fans aren't doing work for you, they're doing work with you. As long as you place copy restrictions on your work, fans will feel exploited. By Freeing your work, you and your fans are on the same team.

  8. If you have something to sell in connection with the work (DVDs, CDs, T-shirts, Keychains, services, custom commissions, etc.) make these available when you release the work. If you have an online store, link to it. If you're a performer, bring items to your performances and have a volunteer sell them for you. Let people know they can purchase said merchandise at your shows.

    There are countless ways to make money with Free works. Freeing them is the first step. 

    My business model is “Content is Free, containers are not. Use the unlimited resource to sell the limited resource.”

    free vs not free; use the unlimited resource to sell the limited resource

    Just because your content is Free, doesn't mean you can't sell “containers” of it: paper books, discs, hard drives, prints, paintings, and so on. One successful example of this principle in action is my own “Sita Sings the Blues” e-store. Authors whose ebooks are available for free sell more paper copies (see Paulo Coelho). The more content (which is non-ravalrous) circulates freely, the greater demand for rivalrous goods related to it. Which you or your agents can sell.

    Related, but not exactly the same as ours,is Techdirt.com's basic business model for artists: CwF+RtB (Connect with Fans + Reason to Buy = $$). You can read numerous ways this principle is making artists money in Techdirt's Case Studies. Although Free works aren't a prerequisite for this model, they work perfectly with it.

  9. Let go. There is no time limit; once your work is Free, it can be discovered and “catch on” at any time. There are no guarantees of success in the arts. You've done your part: you've removed one large obstacle, by removing copy restrictions. The rest is up the the wider world. Now is a good time to think about your next piece of art!

    By putting your work out there. Make the art you want to see, and share it. Be patient. It may take a while. The most important thing you can do at this stage is focus on your art, making the art you want to make, and Freeing it to the best of your ability so that others, sooner or later, can find it and share it with the next potential fan.

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The Surprising History of Copyright and The Promise of a Post-Copyright World

(Translations: 中文, Italiano, Polski, latviešu valoda. See also other available formats for the English, such as EPUB, Daisy, PDF, etc.)

QuestionCopyright.org logo

There is one group of people not shocked by the record industry's policy of suing randomly chosen file sharers: historians of copyright. They already know what everyone else is slowly finding out: that copyright was never primarily about paying artists for their work, and that far from being designed to support creators, copyright was designed by and for distributors — that is, publishers, which today includes record companies. But now that the Internet has given us a world without distribution costs, it no longer makes any sense to restrict sharing in order to pay for centralized distribution. Abandoning copyright is now not only possible, but desirable. Both artists and audiences would benefit, financially and aesthetically. In place of corporate gatekeepers determining what can and can't be distributed, a much finer-grained filtering process would allow works to spread based on their merit alone. We would see a return to an older and richer cosmology of creativity, one in which copying and borrowing openly from others' works is simply a normal part of the creative process, a way of acknowledging one's sources and of improving on what has come before. And the old canard that artists need copyright to earn a living would be revealed as the pretense it has always been.

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How Copyright Restrictions Suppress Art: An Interview With Nina Paley About "Sita Sings The Blues"

In this November 2008 interview, well-known cartoonist and animator Nina Paley tells how her award-winning, feature-length film Sita Sings The Blues landed in copyright jail. After this interview, Nina joined QuestionCopyright.org as Artist-in-Residence, and is now working on the Minute Memes project as well as on the free distribution model of her film.

(This interview is also available in annotated segments, in case you're looking f'or something specific or are not sure where to start.)

Full Interview

After pouring three years of her life into making the film, and having great success with audiences at festival screenings, she now can't distribute it, because of music licensing issues: the film uses songs recorded in the late 1920's by singer Annette Hanshaw, and although the recordings are out of copyright, the compositions themselves are still restricted. That means if you want to make a film using these songs from the 1920s, you have to pay money — a lot of money (around $50,000.00).

It's a classic example of how today's copyright system suppresses art, effectively forcing artists to make creative choices based on licensing concerns rather than on their artistic vision.

The music in Sita Sings The Blues is integral to the film: entire animation sequences were done around particular songs. As Nina says in the interview, incorporating those particular recordings was part of her inspiration. To tell her — as many people did — to simply use different music would have been like telling her not to do the film at all. And that's part of her point: artists "internalize the permission culture", which in turn affects the kinds of art they make.

Sita Sings The Blues has been nominated for a "One To Watch" Spirit award and won a Gotham "Best Film Not Playing at a Theater Near You" award, as well as "Best American Feature" at the Avignon Film Festival, "Best Feature" at the Annency Animation Festival, and a Special Mention at the Berlinale. Famed film critic Roger Ebert has raved about it. But the film remains undistributable as of this writing; Nina is trying to work out an arrangement with the holders of the monopolies on the music that inspired her. If you'd like to donate to support Nina, you can do so here.

(2009-12-16: she eventually did pay them off, and then released the film under a free license. You can buy a DVD, or download it online. Buying a DVD directly supports Nina, as do donations obviously.)

Thanks to: Nina Paley for interviewing and for editing help; the Software Freedom Law Center for space and for logistical support; Light House Films for camera work, etc.

Interview Highlights (2:15):

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Syllabus for Prof. Howard Besser's "Free Culture & Open Access" course at NYU.

QCO Education icon.Professor Howard Besser of New York University is offering a course at the Tisch School of Arts this Spring entitled Free Culture & Open Access, and he's released the syllabus online.  It's such a good list of introductory sources (and speakers) on the free culture movement that we wanted to point to it from here:

besser.tsoa.nyu.edu/howard/Classes/14free-culture-syllabus.pdf

Several QCO articles, and the work of our Artist-in-Residence Nina Paley, are listed in the syllabus.  Also very nice to see is the trouble Prof. Besser took toward the end of the syllabus to define plagiarism accurately and not confuse it with mere unauthorized copying (simply put: copying a song is not the same as claiming you wrote it!).  As we wrote back in 2007, this is not something NYU has always been clear on, though to be fair, the current Tisch School of the Arts Academic Integrity Policy seems to have thought about it more carefully.

We asked Prof. Besser "Will you be suggesting to the students that they release their own papers for the course under non-restrictive licenses?" and got a delightful answer:

Since 1994 I've been asking my students to make all their work for my classes publicly available
   http://besser.tsoa.nyu.edu/impact/ (choose "Student Papers")
   http://www.nyu.edu/tisch/preservation/studentwork.shtml
We are now transitioning into explicit CC licenses.

It appears the students are in good hands!  Best of luck to Prof. Besser and the class.

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