Make Art, Not Law.

Nina Paley looking jazzy

QCO Artist-in-Residence Nina Paley's interview with at Baixa Cultura, conducted by email with journalist and photographer André Solnik. The English below is the original; Baixa Cultura translated Nina's answers.

1. When your interest on free culture has begun?

For a long time I thought copyright terms were too long and the law could use reform, but I didn't really understand Free Culture until October 2008, after months on the film festival circuit with my then-illegal feature Sita Sings the Blues. Free Culture was too audacious a concept for me to think about clearly until then. One morning I finally got it — freeing my work would be better for the work — and I spent the next half-year preparing for a Free, legal release of SSTB. That finally happened in March 2009, when I finally cleared all the necessary (and bullshit) licenses at a cost of about $70,000 to myself.

2. Tell me in short why artists should free their work. Is it a good choice for both renowned and new artists?

From my article How To Free Your Work:

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.... 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.

3. Creative Commons has recently released the final draft of the version 4.0 of its licenses. What changes would you like to see? Do you think CC should keep on supporting the nonfree licenses?

Yes, CC should stop supporting the non-free licenses. What kind of "commons" is that?

4. Although they are probably the most known alternatives to more restrictive ones, they still remain unpopular compared to the “all rights reserved“. Why is that? Do you reckon people get confused by the many possibilities given by the CC licenses?

Most people who use CC licenses don't understand what the different licenses mean; they just call all of them "Creative Commons" as if that means anything. CC's modular system was a good idea, I see it as an experiment that was worth doing. But the results are in: it didn't work. What we have now are a mess of incompatible licenses, most of which fail to contribute to any real "commons," and an increase of confusion and misinformation.

You can't really blame Creative Commons though — the problem is copyright law. Nothing can fix it at this point. Even CC-0, a valorous attempt to opt out of copyright, doesn't work in practice, as my experience with the Film Board of Canada showed — even after placing SSTB under CC-0, their lawyers refused to accept it was really Public Domain, and made me sign a release anyway, just to allow one of their filmmakers to refer to it. I will be saddled forever with permissions paperwork even with CC-0. I'll probably keep using CC-0, of course, but I have no expectation it will work as it's supposed to.

5. The BY-NC-SA license, although nonfree, it’s pretty popular. Why do you think so? What are the main issues about licensing a work using it?

People are high-minded when they choose the -NC restriction, but it accomplishes exactly the opposite of their ideals. They want to "protect" their works from abusive exploitation from big corporate players. They don't realize those big corporate players LOVE the -NC clause, because it's a commercial monopoly. Big corporate players are all set up to deal with commercial monopolies: they have licensing departments and lawyers. It's the big corporate players who can afford to license your -NC works. It's your peers, small players with no legal departments and limited resources, who can't. The -NC clause screws over your fellow artists and small players, while favoring big corporations.

The way to avoid abusive exploitation is to use CC-BY-SA, a Share-Alike license without the -NC restriction. This allows your peers to use the work without fear, as long as they keep it Free-as-in-Freedom. Big corporate monopoly players, however, are unwilling to release anything Freely: if they want to use your work, they'll have to negotiate a waiver of the -SA clause. For this they will pay money. It works like a regular licensing deal: for $X you waive the -SA restriction and allow them to re-use the work without contributing to the community. I have had many corporate licensors offer me such contracts, although I didn't sign any because I was such a Free license booster.

The only reason BY-NC-SA is popular is because people really haven't thought it through.

6. Money seems to be one of the main worries artists have when they hear someone saying “free your work“. Is this “fear“ justified? Have you recovered all the money spent in the making of Sita Sings the Blues?

No, this fear is not justified. But your question sure is biased: "Have you recovered all the money spent in the making of Sita Sings the Blues?" As if with copyright I would have! I have made more money with Freeing my work than I ever did with copyright restrictions. Period. Where do people get this idea that putting a © on something will magically generate money? It doesn't. If it did, I would fully support copyright, and be rich. Copyright is a "right to exclude," not a right to make money. You are free to make money without copyright, and you stand a better chance to as well.

7. You have recently announced that SSTB is now in the public domain. Although now you are finally free of burocracy envolving copyright stuff and this action could help your movie to have more visibility, on the other side it could favour restricted modifications of your work (e.g.: a book inspired by SSTB released under “all rights reserved“). How do you weigh these two sides?

Eh, honestly I just don't care any more. Let's just put it out there and see what happens. If something terrible happens because I shared freely, I'll learn from that. But I think it's stupid to worry about what other people do, and try to control it, especially with broken laws. Even Free Share-Alike licenses require copyright law to be enforced, and copyright law is hopelessly broken. I don't want to validate or support it in any way.

Licenses are not going to fix our problems. What is fixing our problems is increasing numbers of people simply ignoring copyright altogether. Instead of trying to get people to pay more attention to the law, as CC does, I'd rather encourage them to ignore the law in favor of focusing on the art. Licenses are the wrong solution. Art is the solution. Make art not law.

8. Are you keen on the free software movement as well? Any of your works was made using free softwares?

I'm attending the 2013 Libre Graphics Meeting in Madrid this year, to discuss building a good Free vector animation tool I can actually use. More in this article, It's 2013. Do You Know Where My Free Vector Animation Software Is?


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 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.


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