The U.S. Senate is not being overly subtle about it lately, either. The so-called “SMART Copyright Act of 2022” would effectively force online platforms to use content-monitoring software designated by the U.S. Copyright Office to detect user-uploaded content that some monopolist asserts violates their monopoly. Well, technically, the platforms aren’t required to use the content-monitoring software — they would just face absurdly, existentially high penalties if they were found guilty of copyright infringement and had not been cooperating with Big Brother. To be fair, the platforms can make their own choice, right?
So we would now have enforced running of government-designated code, in addition to the already well-documented problems that have plagued automated content-monitoring software for years:
Lots of false positives, causing content to be mistakenly taken down by the hosting service with no practical way for people to argue that the system has made a mistake. Here at QCO we argue that censoring non-confidential content is inherently a mistake anyway, but even if you think copyright justifies that censorship, the fact is that automated monitoring systems make lots of mistakes even on their own terms, and no platform provides adequate recourse to the victims of those mistakes, because…
…this bill, like all the others before it, contains no meaningful penalties for false claims of copyright ownership or of infringement. Instead, all of the terms favor the content monopolists: if you share things that they legally monopolize, then you (or the service provider) pay a price, but if the monopolists wrongly claim that you have done this, there is no penalty to them for being wrong about that (and, in general, you’ll still pay the price — your stuff will be censored anyway).
An automated system to detect, flag, and take down content from online services is, by definition, a technical system for implementing censorship. As it increasingly becomes a government-directed censorship system — which is what this bill is the start of — the temptation will become irresistible to use it for purposes beyond copyright-based censorship. “Oh, hey, we’ve got this great content ID system in place, so now we can use it to flag all this other bad stuff too.” For “other bad stuff”, substitute pretty anything anything you think a DOJ lawyer might be able to persuade a judge to set aside her 1st Amendment concerns for: illegal (ahem) foreign propaganda trying to influence elections, medical mis-information, information about the activities of U.S. military forces overseas…
Government-chosen, government-mandated automated censorship technology. If that sounds like a bad idea to you, then (if you’re in the U.S.) please get on the horn and let your senators and representative know.
By the way, in addition to the bill’s basic flaws of premise and design, it is also extremely poorly drafted: it’s full of gaping meaning voids like “…a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry process…” and “…a broad consensus of relevant copyright owners and relevant service providers, in an open, fair, voluntary process…”, etc. It is, essentially, an invitation to judges to slap arbitrarily high penalties on any platform that accepts user-generated content but does not get in line and obey the software code and content rules that Uncle Sam tells them to obey.
If there’s a bright spot here, it’s that legislation like this will only drive people and platforms toward peer-to-peer encryption and platform-opaque systems even faster than they were already being driven there by pervasive surveillance and eroding civil liberties.
Famed animator (and QCO Artist-in-Residence) Nina Paley has finished a project that she’s been working on for nearly half a year: Apocalypse Animated, animations to accompany the complete Book of Revelation, the last book of the New Testament.
Enjoy the 3-minute trailer, then jump straight in starting at Chapter 1. The animations, in combination with the actual words of the King James Bible, are irreverently powerful — which is not a collocation I ever thought I’d write, but Nina Paley has a way of defying expectations.
A lot of the visual vocabulary of Apocalypse Animated is part of MysticSymbolic, Nina Paley’s experiment with Atul Varma. If you like Apocalypse Animated, look in MysticSymbolic for more (see here for additional information).
The Internet Archive has been taking some heat for their National Emergency Library initiative. I think the NEL is a very, very good thing, and I’d like to explain why.
First, you need to know what the National Emergency Library is. It’s just a change in access policy: For the duration of the COVID-19 crisis in the U.S., with millions of students forced to do their learning at home, the Internet Archive is removing the artificial scarcity of “lending limits” on the digital books they have copies of. That’s a lot of books — the Archive has one of the largest collections available online.
This temporary suspension of lending limits upsets the fiction that digital lending is like physical lending. In a physical library, when I borrow a book, that’s one less physical copy for the library to lend out, and when all the copies are lent out, then no new borrowers can get that book until someone returns a copy. While no such limitation needs to exist for digital books, copyright law in practice forces digital libraries to behave as if they were lending out physical copies anyway. They have to pretend that they have a certain number of copies, and when the “last” copy is lent out, then they can’t “lend” (i.e., make and send) a new copy until one of the existing copies is “returned”.
Returning a digital copy is, of course, a fundamentally meaningless notion, but what it boils down to is the reader running some piece of software that promises to the Internet Archive that the reader’s copy of the book is deleted on the reader’s device now. The Archive then marks that copy as “returned”.
Why a Suspension of Lending Limits Makes Sense Now.
Even if we were to believe the noblest and most public-spirited interpretation of copyright law — that a time-limited distribution monopoly motivates the creation of new works — we must still admit that it is a compromise designed for specific circumstances.
Those circumstances always included a functioning physical marketplace and distribution system. Libraries obtained and lent books within that context, and until now, in an academic context that meant physical access to the library by students and physical proximity of the students to each other: that is, the possibility of multiple students learning from the same source material — whether physical or digital — together in person.
(By the way, there are reasons to be skeptical about the premise that copyright was designed for public good rather than for private monopoly interests in the first place, but let’s grant the premise for the moment, in order to give the other side’s arguments their strongest hearing.)
Suddenly, because of a global pandemic, circumstances have drastically changed. The compromise should change with them.
For one thing, the notion that students, now “attending” class from home, would still have access to the same books they had access to before is obviously wrong. Many of the books in school libraries are not digitized. In some cases, even if the book is digitized somewhere, the particular school library or public library in question may not have access to that digital version, even if they have hundreds of physical copies in stock.
But focusing on individual access misses the larger point. What is happening here is an ecosystem transformation. The important questions are not about what an individual student has access to, but about the bigger picture: the ongoing and still-improvisational adaptation that students, families, and teachers are making together to this new situation in which scholastic interaction is suddenly bandwidth-limited in both literal and figurative senses.
When we’ve already deliberately transformed our normal personal and economic lives, when the entire educational system is radically redesigning itself as it figures out how to operate with physical distancing and all-digital resources, when people are even willing to take drastic steps like giving up freedom of physical movement, why on Earth would we assume that our previous policy of monopoly-limited access to books should — unlike virtually everything else — remain unchanged, as though nothing had happened?
With students forced to be far apart physically, we have to rethink the damage done (hitherto tolerated but lately suddenly increased) by artificially fragmenting the digital material they have access to. Before this crisis, they had the option of looking together at the same book in person, even if only one of them was the official borrower. Now that they can’t do that it becomes even more important to make shared experience possible across physical distance. If that means suspending some artificial limits on access, well, if not now, when? If this circumstance doesn’t make us reconsider the relative values of all sides of the already-shaky copyright compromise, then we would have lost sight of its alleged purpose entirely. Or, as I think more likely, we would reveal that its actual purposes have always been different from what its defenders claimed.
The Internet Archive has already started collecting the stories from teachers who are gratefully relying on the National Emergency Library. But my guess is the stories we hear so far are just the ones that are easiest to collect. The true value of the National Emergency Library can only be documented after students and teachers have had a chance to show what they can do when they finally have — at least for a time — unfettered access to a significant portion of the world’s accumulated texts.
To shut down this experiment now, when it is most needed, would be an immense failure of the imagination. It would be all the more short-sighted to fail in the name of preserving a monopoly system that is itself still experimental. After three hundred years of highly controversial results, in which pro-monopoly interests have steadily and successfully pushed for ever-longer copyright terms — including retroactive term extensions, which make no sense even given copyright’s own mythic self-explanation — and for ever-stronger powers of restriction, what could be the justification for refusing to try some experiments in the other direction for once?
Thank goodness the Internet Archive is willing to try. There will never be a more appropriate time than now. The objectors remind me of those who opposed FDR’s experimentation during the Great Depression of the 1930s. As he said then:
“The country needs and, unless I mistake its temper, the country demands bold, persistent experimentation. It is common sense to take a method and try it; if it fails, admit it frankly and try another. But above all, try something.”
So who’s objecting?
The Authors Guild, of which I am a member, has been one of the loudest objectors. I recently received an email from them asking me to sign an open letter addressed to the Internet Archive.
The open letter says exactly what you would expect it to. Institutionally, the Authors Guild has long been a copyright maximalist. Although the Guild does many fine things — advocating for freelancer benefits for authors, providing tools for authors to build their own web sites, helping authors negotiate with publishers, etc — it has consistently argued in favor of longer and tighter monopolies restricting the circulation of books, and was doing so long before the National Emergency Library came on the scene.
The argument that the National Emergency Library is hurting authors is pretty weak. The Guild’s claim might have more weight if they provided some evidence for it, which they do not. Amusingly, and no doubt unintentionally, their letter actually makes a case for the insufficiency of copyright-based royalties in sustaining authors, where it writes that during the COVID-19 crisis “…The freelance writing assignments and speaking engagements that many authors rely on to supplement their income are unavailable, and yet authors are not eligible for traditional unemployment.” (To its credit, the Guild is arguing to Congress to expand the Pandemic Unemployment Insurance for freelancers to include authors — but of course, this has nothing to do with the National Emergency Library nor with copyright law.)
The Internet Archive, meanwhile, has made some pretty powerful arguments on the other side. I can do no better than quote their own words:
…Last week we released a first look at some trends in use of the National Emergency Library. Corroborating what we are hearing from professors, our patrons are seeking older books: more than 90% of the books borrowed were published more than 10 years ago and two-thirds were published during the 20th century. Most patrons who borrow books from the National Emergency Library are reading them for less than 30 minutes, suggesting they are using the book for research as a reference check, or perhaps they are simply browsing as in a library or bookstore.
In the few weeks since the National Emergency Library was established, much has been said in the Twittersphere about the very real needs of publishers and authors. Completely missing in the debate are the voices of the 1,576,021,818 students worldwide cut off from their books—books already purchased by their schools, public libraries and community colleges. For a few weeks, until this educational and public health crisis subsides, the National Emergency Library is trying to help fill this void.
The Internet Archive is conducting an important experiment responsibly. We should let them. If a crisis like this is not the time to try something new, then we would essentially be admitting that even in principle the copyright system should never be responsive to public need in changing circumstances. If that’s the position of the Authors Guild and other objectors, then they should say so frankly. It would still be the wrong position, but at least we’d be having the right discussion.
QuestionCopyright.org had a very quiet 2019, while we took care of some internal infrastructure work. Happily, most of that work is done now. In 2020, our main project is the BookLiberator, but this time without special hardware. It will be a purely software application for smartphones, which are now capable of capturing the requisite high-resolution images and doing on-board computation: page-dewarping, for example, and even some or all of the optical-character recognition (OCR) processing.
The application will be 100% free and open source software, of course, and control will remain with the user, where it belongs.
This is not the finished film. This is about 40 minutes of in-progress work — the core musical scenes, featuring, in Nina’s words, “Goats! Egypt! Plagues! Death! Idols! Commandments! Unsubtle phallic imagery! …and MORE!” (And free matzoh.) Q&A with Nina Paley will follow the screening.
It’s also been translated into Chinese, Polish, Latvian, and Italian. We’re very grateful to all the translators; it’s a lot of work for a piece of that length. But the existence of these translations should also serve as a reminder of the vast amount of material in the world that would be translated if it weren’t restricted by copyright monopolies — a topic we’ve covered in depth before.
Happy New Year, everyone. Let’s try to have more freedom in 2016 than we did in 2015.
This 18-minute talk is by far the best explanation I’ve seen yet of why you should question copyright.
In the last few years, I’ve watched QCO Artist-in-Residence Nina Paley refine her message about the harm of copyright and permission culture. Now it’s the most direct and most effective it’s ever been. If you want just one video to show people to explain to them what this movement is about, let this be the one. Nina tells an appreciative audience why she had to set her mind free in order to make art, and shows some wonderful clips from her next film Seder-Masochism — a film that simply couldn’t be made within the permission culture that Nina diagnoses so eloquently:
We’ve written about the Happy Birthday lawsuit here before. Now it seems the case has reached a turning point — a “smoking gun” has been found, thanks to research in the files of the pro-monopoly side, Warner/Chappell: a copy of the “Happy Birthday” lyrics from 1922, that is, before the present-day copyright horizon.
The story (courtesy of Hollywood Reporter) is pretty fascinating in itself, but let’s go to town on the amazing claim Warner/Chappell seems to be making in response to this new discovery. After all, what is QuestionCopyright.org for, if not going to town on the most absurd claims of the monopoly industry?
What Warner/Chapell seems to be saying is that even if it were found that the song lyrics existed in their current form in 1922 — that is, earlier than the current “earliest copyright horizon” — the fact that the 1922 copy of those lyrics might have been, at that time, a possible copyright infringement (which it obviously wasn’t, but we’ll leave that aside in order to grant the widest possible latitude to Warner/Chapell’s argument, for our own entertainment if nothing else) means that maybe the copyrights claimed later in 1935 are somehow still valid. Or something?
But the mere existence of a version of a work before the horizon means that, even if that copy were in an copyright-infringing state at the time, whatever copyright it was infringing then must, clearly, have expired by now. Because otherwise, the copyright horizon is not really a copyright horizon. Unless you live in a world where time runs backwards and sideways, as Warner/Chapell perhaps does.
What this lawsuit really shows is what we’ve been arguing is the problem with broad information monopoly rights in general: once the state creates a monopoly, it creates a monopolist who owns it — or in this case imagines themselves to own it — and that monopolist will fight to the bitter end to keep it, against all reason and all evidence. There is normally no representative of the public who has as clear and focused an interest in a given monopoly as its putative owner does; we just got lucky in this case that a filmmaker decided to take an interest in this one song.
Q: Hi Nina! Big fan of Sita Sings the Blues. As you may probably be aware, the right-wing moral policing is at an all time high in India. What are your thoughts on censorship and its implications on artists?
A: Censorship: all the more reason to keep my work Free, open and decentralized. Centralized distribution is easy to censor. Decentralized distribution is impossible to censor.