Lascaux Cave Painter Descendents to Recover Royalties

Lascaux Cave II: horse etc.

April 1, 2013 - AP.  Lawyers representing the 631 million known descendants of the painters of the famous Lascaux Cave paintings announced today a far-reaching plan to recover royalties from the more than 70 years of modern-era unlicensed reproduction of their ancestors' work.

Said François Fraisant-Pître, who still lives in the area where his family painted aurochs and other fauna later driven extinct by more recent members of his family, "My great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-grandfather understood the investment he was making for us, and it is to honor his memory that we now seek payment of the royalties that he rightfully expected to go to our benefit."

The legal team emphasized that because the paintings were at least 17,000 years old, they could not be sure how many people had made copies in the intervening millennia, and that out of concern not to make any overly broad claims, they were only seeking payment for photographic and other reproductions dating from after the caves' modern discovery in 1940.  "It is possible, of course, that others have entered the caves at various points in history and made use of this art," said lead attorney Belinda Featherstonehaugh, herself a Lascaux descendant along with most of the population of the British Isles. "Of course, if we had any way to identify those infringers with certainty, we would attempt to recover royalties from their descendants today; however, without any reliable way to know who was there, we felt it best to err on the side of caution and discretion."

Featherstonehaugh added that the families would be seeking additional compensatory damages from the estate of Georgia O'Keeffe, whose paintings of deer skulls and antlers from the American Southwest were "clearly derivative, and were made entirely without permission," in the lawyer's words.Lascaux Megaloceros

QuestionCopyright.org Executive Director Karl Fogel, however, criticized the recently announced enforcement effort, saying "This just shows how little has changed in seventeen thousand years.  The descendants may indeed have a valid legal claim, especially with the retroactive copyright term extensions of 7,500 B.C. and again in 600 A.D., plus the dropping of registration requirements at the start of the Holocene interglacial period.  But the suppressive effect this will have on the entire history of Western art is totally unjustifiable."

"These lawyers and their clients," Fogel went on to add "are just complete Neanderthals.  They can't see, or won't acknowledge, how the world has changed, how the economics of distribution have been completely upended by the arrival of the Internet.  They're still stuck in the old model."

 

 

 

 

Brains in Jails: Bad Metaphors Make Bad Journalism

Brain in jail.There's been a persistent mistake in coverage of the Aaron Swartz case -- a bad metaphor, but more serious than just a bad metaphor.  It's a mis-framing that pulls people's attention away from what actually happened and lures them into a familiar but wrong story.

This mistake has long been found in most coverage of anything related to unauthorized copying, including this case starting from Aaron's arrest.  But it's become even more noticeable now (and, to the many of us who care that Aaron's life and work be represented accurately, more annoying) because there's a particularly clear-cut example of it happening in many of the articles that focus on the prosecutorial overreach in this case.

I'm referring to the bizarre idea that when someone copies data, they've "taken" it from someone else, and that therefore it makes sense to talk about "returning" the data.

In Aaron's case, journalists usually write some variant of this statement:

Aaron Swartz returned the data to JSTOR, and JSTOR then considered the matter over.

I don't remember where I first encountered this misleading "returned the data" trope (there have been so many instances!), but one of the earliest times was in JSTOR's own statement, from which some journalists may be unconsciously taking their cue:

"...Aaron returned the data he had in his possession and JSTOR settled any civil claims we might have had against him in June 2011." (JSTOR, Jan 2013)

(Or perhaps they're taking their cue from U.S. Attorney Carmen Ortiz, whose office initiated Aaron's prosecution, and who said of it with almost wilful self-delusion “Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”  No, I'm not kidding.  Yes, she really said that.)

The same odd framing started appearing in many places.  For example, here's Rolling Stone:

"Among the most frustrating components of the ordeal was the fact that JSTOR, ostensibly the most overtly wronged party, had declined to press charges against Swartz after he returned the downloaded documents."  (Rolling Stone, 16 Feb 2013)

There are so many other examples... this week, it happened in The New Yorker:

"Soon after his arrest, he returned the data he had taken, and JSTOR considered the matter settled" (The New Yorker, 11 Mar 2013)

I finally felt driven to write a letter, though it feels like bailing out the ocean at this point:

To the Editor,

Larissa MacFarquhar, in her article on the Aaron Swartz case ("Requiem for a Dream", March 11th), perpetuates a common misunderstanding when she writes "Soon after his arrest, he returned the data he had taken, and JSTOR considered the matter settled".

Aaron couldn't have "returned" anything because he didn't "take" anything.  His computer asked JSTOR's servers to make copies of their data and send those copies to him, which they did.  The metaphor of "return" is nonsensical because JSTOR never lost anything in the first place.  Four pages later MacFarquhar quotes Swartz himself making this point: "...downloading isn't stealing.  If I shoplift an album from my local record store, no one else can buy it.  But when I download a song, no one loses it and another person gets it.  There's no ethical problem."

What MacFarquhar should have written was that Aaron Swartz destroyed his copies of the data, and that JSTOR was satisfied with this destruction -- a very different notion than that of "return", but a much more accurate one.

 

-Karl Fogel

What can we do to get journalists to see that copying is not theft?  That data is not a physical object that needs to be "returned"?  That JSTOR was satisfied by copies of academic articles being destroyed, not returned?  That's a pretty big difference: returning vs destroying.  It's important to get it right.

Why Is Free So Hard?

Producing Open Source Software (front cover)Why is free so hard?

I got an email from what I believe to be a reputable publishing and online training company, asking about training opportunities based (presumably) on my book.  I wasn't really interested in doing online training, and anyway if I were I'd first talk to O'Reilly Media, my current publisher, with whom I have a good relationship and who have been very supportive of the book.

So I eventually wrote this (after an initial round of conversation):

Thanks for the inquiry. I'm not really looking to get involved in online training, personally, but am perfectly happy to have my materials used by someone else doing online training if they wish, and of course the free licensing means that's possible.
  
Best of luck,
-Karl

But freedom is so alien a concept nowadays that that didn't work -- here's their response:

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