Author: Karl Fogel

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.)

We’re taking questions from the Net for the panel discussion below. So if there’s something you’d like raised, please leave a comment here — we’ll bring the comments to the panel.

(And if you submit your question via, say, a video on YouTube, we’ll try our best to play it live during the panel. Yes, that’s a hint!)

• When: Wednesday, 3 December 2008, 8pm-10pm
• Where: Satow Room – Lerner Hall @ Columbia University (see map)
• What: Panel discussion about current law and about the future of copyright policy.
• Who: Stanley Pierre-Louis (VP of IP, Viacom); June Besek (Prof. of Law, Columbia University); Karl Fogel (Editor, QuestionCopyright.org)

The event is free, but space is limited. Please RSVP to: decause{_AT_}softwarefreedom.org.

Minute Memes: Reframing Copyright One Idea At a Time

Minute Memes are supported by a generous grant from the Andy Warhol Foundation for the Visual Arts and donations from supporters like you. We’re planning on making many more memes and anything you can give will help; so if you like the Minute Memes project, please consider making a directed donation.

What are the Minute Memes?

The Minute Memes project is a series of one-minute videos about copyright restrictions and artistic freedom, made by award-winning animator Nina Paley.

Copying Is Not Theft	All Creative Work Is Derivative	EFF Tribute	Credit Is Due: The Attribution Song

The series counteracts widely-available videos from the recording and publishing industries that seek to frame copyright as natural property right. The Minute Memes build a new frame of reference to supplant received rhetoric about copyright — such as:

• the notion of “balancing” the needs of creators and the public, which assumes that the two are in opposition;
• the idea that copying is a form of stealing; and
  
• the idea that control of copying must be bound up with questions of attribution.

The Minute Memes use visual storytelling, music, lyrics, and high production values to show how art, artists, and audiences can thrive in a permissive and non-monopolistic environment. Several have been completed and are already widely shared on the Internet. Please consider donating to this project to support the production of more Minute Memes.

Motivation: Why Minute Memes?

Due largely to ubiquitous, professionally-made public campaigns by the recording and publishing industries, many people — even those who share music online — identify unauthorized copying with stealing and with plagiarism. Before a new way of thinking can be presented, then, the issues must be reframed. We must enable the viewer to feel that formerly unquestioned terms and assumptions deserve a fresh look. Only after crossing that emotional barrier will someone be willing to consider copyright in a new way. But crossing that kind of barrier requires rhetorical tools that go beyond plain expository argument. For someone to consider ideas they may have previously felt were unrealistic or even immoral, they need to first give themselves permission — they must feel it’s safe to go there.

Patrick Leahy (D-VT) was one of the Senators who sponsored S. 3325, despite his generally good track record on electronic freedom issues. See below for information on how you can help Sen. Leahy understand why he shouldn’t support this bill.

QuestionCopyright.org doesn’t normally focus on immediate legislative goals. Current copyright law is pretty bad, but our mission is to change the way people think about copyright, in the belief that legislative change will follow.

But every now and then, a proposed new law is so off-the-charts wrongheaded that it needs to be immediately shut down. U.S. Senate Bill S. 3325 is one such. Public Knowledge has a great summary of what’s wrong with it:

Last week, the Senate Judiciary Committee gave the green light to S. 3325, the Enforcement of Intellectual Property Act of 2008. We need you to show them the red light, NOW! This intellectual property enforcement bill lets the DOJ enforce civil copyright claims and lets the government do the MPAA and RIAA’s intellectual property rights enforcement work for them — at tax payers’ expense.

The bill also needlessly bundles trademark protections with copyright restrictions, thus further confusing these two unrelated things in the mind of the public (and, no doubt, in the minds of many Senators). Identity protection is a fine goal, but it has nothing to do with copyright. Search the bill for the phrase “counterfeit and pirated goods” and you’ll see immediately how these different concepts are repeatedly yoked together, with the effect that mere unauthorized copying is tainted with the stigma of counterfeiting. For example:

For purposes of this title, the term `intellectual property enforcement’ means matters relating to the enforcement of laws protecting copyrights, patents, trademarks, other forms of intellectual property, and trade secrets, both in the United States and abroad, including in particular matters relating to combating counterfeit and pirated goods.

See the full text of the two proposed versions of the bill for details.

Public Knowledge has set up a very convenient web page from which you can call or fax your Senators (if you’re a U.S. citizen) and tell why they should oppose S. 3325. Please, if you have ten minutes to spare today…

GO THERE NOW AND DO IT.

Thank you.

Thanks to James Jacobs for sending in a link to the article “He’s giving you access, one document at a time” by Nathan Halverson at pressdemocrat.com. It’s about how Carl Malamud and public.resource.org are defying the state of California by — get this — putting California’s laws online for public access.

You wouldn’t think that would be a particularly controversial thing to do. In fact, you might even expect California to have done so already, and in standard, parseable electronic formats too (as per the Open Government Data Principles). But instead, California enforces copyright over the texts of its laws. Quoting from the article:

California asserts copyright protections for its laws, contending it ensures the public gets accurate, timely information while generating revenue for the state.

“We exercise our copyright to benefit the people of California,” said Linda Brown, deputy director of the Office of Administrative Law, which manages the state’s laws. “We are obtaining compensation for the people of California.”

It’s a great example of how copyright restrictions inevitably spread to new areas, without regard to the public purpose. The logic goes something like this: the law is a text; a text has value according to its usefulness; if a text has value, someone can make money by restricting who shares it and then charging money for a lease on that monopoly; the state always needs revenue; ergo, the state should restrict the spread of its own laws, in order to raise funds! The reasoning is bizarre, almost breath-taking in its audacity. And it leads civil servants to claim, with straight faces, that the state has an interest in denying people access to the text of the law.

What’s most interesting is how clearly this case reveals the old relationship between printers’ monopolies and copyright law. California justifies their copyright restriction in exactly the same way the English Parliament justified the first copyright law: that the public good is best served by profitable distribution, and that means supporting printers by giving them a monopoly.

Of course, that argument made a lot more sense in 1709, when there wasn’t an Internet around to allow zero-cost distribution of public goods :-).

Thanks to Jessica Ferris for sending in this great image by Patri Friedman. How much more simply can one say it? Copying leaves the original untouched, therefore copying is not theft.

It’s interesting to read some of the commentary on Friedman’s post. For example: “This seems like semantic hair-splitting. If I go to some sort of practitioner of whatever and walk out without paying, I haven’t stolen anything tangible, just their time. Is it meaningfully different than if I’d reached into their wallet and removed $60 or whatever? I doubt they’d be any less cheesed off if I told them “actually what just happened wasn’t technically theft, it was something else.” [1]

Friedman’s response is terrific:

It is not semantic hair-splitting. It is a simple, genuine, important difference. Your example indicates that you don’t understand it, which I find weird:

“If I go to some sort of practitioner of whatever and walk out without paying, I haven’t stolen anything tangible, just their time.”

But their time is not a copy. It is irreplaceable. They will never get those moments back. Therefore what you have done is theft. If you used the public record to create an AI simulacrum of the practitioner, and consult the simulacrum instead of the practitioner, that is analogous to pirating the time of the practitioner. (You may be stealing the time of the simulacrum, but that is a separate issue).

The question is not tangibility. The question is whether, after I do ____, someone else then has less of something than they did before. If I “go to someone for their services, and don’t pay them”, they have less time than before. If I ask Google what I was going to ask the professional and so don’t need their services, they haven’t lost anything.

There is a comment relating copyright with trademark law (that’s something that we see all the time; can we come up with an equally powerful graphic to show how they’re unrelated?). And there’s the inevitable comment reiterating the received theory argument, which says that without monopolies people won’t be motivated to innovate. We really need to start countering that one with the point that a monopoly in a given field tends to suppress innovation in that field. And anyway, where’s the evidence? If these monopolies are so necessary for innovation, then why is there no shortage of innovation where monopolies are not given (the fashion industry, say, or cooking).

But all these words don’t match the eloquence of Patri Friedman’s graphic. It’s simple, memorable, and irrefutable.

And no, by the way, I didn’t ask Patri Friedman before posting a copy of the image here. His whole point is that we shouldn’t have to. We credit him and link back, of course, because credit is like time or money, in that when you take it from someone, that person actually loses something. Copying the image while still giving him full credit is exactly in the spirit of his post.

Hey everyone: it’s been quiet around here because I’m on vacation for August (and have already been for part of July).

No, this is not because copyright reform must involve long vacations. It’s just that I’m in the middle of a move, and need some extra time to complete it. (But I admit there are a few beaches involved too.) Someday, it will be the case that just because I take a break doesn’t mean QuestionCopyright.org does — but we’re not there yet.

See you in September, and enjoy your summer (or winter, if you’re in the Southern hemisphere).

-Karl Fogel

If you’re in or near Amsterdam in the second week of April, come on over to ApacheCon EU, the 2008 European conference of the Apache Software Foundation. There are a lot of interesting speakers and sessions going on, not all of them technical (for example, “Open Source Business in Europe” by Arje Cahn).

I’ll be giving a talk entitled Creation Myths: Three Centuries of Open Source and Copyright, on Wednesday, 9 April, at 5:30pm. It’s about the similarities between today’s open source movement and the creative world of the pre-copyright era, how copyright and centralized distribution gradually changed the nature of creativity, and how open source and decentralized distribution are changing it back again — but with some new twists. (This is an updated version of a talk I gave last summer at OSS2007 in Ireland.) We’ll also look at some non-software business models based on unrestricted information flow and collaboration.

Slides are here: OpenOffice.org (ODP), Adobe PDF, Microsoft PowerPoint (PPT).

I’ll be giving a talk at the O’Reilly Tools of Change for Publishing conference in New York City next week: Beyond Numbers: Gatekeeper Effects and Just-in-Time Publishing, on Tuesday, February 12th, at 2pm; conference details here. The talk is on the commercial potential of on-demand publishing of freely-licensed material, even as a storefront business model, and how it could mean a richer and more participatory experience for readers, authors, and booksellers.

Another way to get at it is with this question: what economic arrangements would help ensure that publishers spend their energies on publishing, instead of on today’s contradictory combination of publishing and the prevention of publishing? The latter is what happens when publishers exercise copyright to prevent others from publishing certain things (such as fan fiction and other derivative works), and it’s still considered a normal part of the business — like a hospital that somehow thinks its job is partly to cure its own patients and partly to make patients at other hospitals sicker.

The conference as a whole looks excellent. Naturally, there will be a lot of attendees who are, to say the least, not in complete agreement with QuestionCopyright.org’s mission. But this conference attracts people in the publishing and bookselling industry who are looking for new ideas, and who fully understand that the old monopolies, enforced as they were by technological constraints, are going away. I’m looking forward to talking with them, and seeing many of the other presentations there.

I’ll put up the slides to the presentation as soon as they’re ready, and link to them from here… Okay, done: OpenOffice.org (ODP), Adobe PDF, Microsoft PowerPoint (PPT).

A US court has found that copyright law can cover “cease-and-desist letters”, that is, letters sent by copyright holders telling someone to stop distributing copyrighted content.

Cease-and-desist letters are frequently used as tools of censorship (as Chilling Effects has ably documented). A common scenario is that someone gets upset at having something of theirs quoted, and is able to shut down the quotation by claiming copyright over its text and then sending C&D letters to anyone who displays it. The quoted text is not royalty-generating for the copyright holder (not that it would excuse censorship even if it were); rather, the sender of the C&D is simply using copyright law as a tool to prevent the publication of potentially embarrassing information — that is, to censor.

The recipients of C&D letters often don’t have the legal resources to fight them, but they at least can cause publicity problems for the sender by posting the letters. “Look, Global MegaCorp is trying to force us to stop posting their research papers, in which their own scientists determine that their products kill kittens. Read their letter here!” And by drawing attention to the attempted censorship, these organizations are sometimes able to raise enough resources to fight the C&D order in a legal arena.

But now a lawyer who sends C&D letters has persuaded a judge that the texts of the letters themselves can be copyrighted, and therefore recipients can be enjoined from displaying them publicly.

That’s right: they can censor you, and then they get to censor your ability to talk about the exact way in which you’ve been censored. Lovely, isn’t it?

The fundamental problem here is copyright law’s promiscuous tendency to assign a monopoly-empowered owner to every snippet of text (or music, or video) out there, no matter what the consequences to society. As far as the law goes, the judge’s reasoning may well be sound. I’m not a lawyer, but his finding (Case No. MS-07-6236-EJL-MHW) actually seems to make sense within the crazy framework of copyright law:

Under the DMCA, the copyright holder need only plead a prima facie case of copyright infringement. In re: Verizon Internet Servs., Inc., 257 F. Supp. 2d 244, 263 (D.D.C. 2003). A certificate of registration of a copyright constitutes prima facie evidence of the validity of the copyright and facts stated in the certificate. 17 U.S.C. Section 410(c). Melaleuca has registered the Sheppard Letter with the Copyright Office. See Supplemental Filing Re: Copyright Registration Certificate for Sheppard Letter, Ex. 1 (Docket No. 18-2). This is prima facie evidence that the Sheppard Letter is copyrighted and satisfies the first prong of demonstrating a prima facie case of copyright infringement. 43SB has valid arguments and enforcing this subpoena pre-litigation may have far-reaching consequences, therefore some preliminary examination of the potential claim is necessary. However, the Court will not go into an in-depth analysis of the merits of a copyright infringement claim in determining whether to quash this subpoena. It is sufficient in this instance that Melaleuca has registered the Sheppard Letter with the Copyright Office.

The party seeking a subpoena must also make a prima facie showing of copying of constituent elements of the work that are original. See In re: Verizon Servs., Inc., 257 F. Supp. 2d 244, 263 (D.D.C. 2003). The entire Sheppard Letter was posted on the Website by user “d2.” This suffices to show a copying of constituent elements of the work that are original by user “d2.” Therefore, the Court finds that all the elements necessary for a subpoena to issue under 17 U.S.C. Section 512(h), including the notification requirements of section 512(c)(3)(A) and the prima facie case, have been satisfied for user “d2.” The Court recommends that the motion to quash with respect to “d2” be denied.

(I think the full text of the decision is here, which I found via a link from this summary at the Internet Library of Law and Court Decisions. Note that the principal issue seems actually be a motion to quash a subpoena seeking the identity of a comment poster, and the finding of copyrightability of the C&D letter is merely part of that decision. However, I am not a lawyer, and would appreciate any comments lawyers might have on the structure of this decision and its effectiveness as precedent.)

What’s interesting about the whole situation (aside from its obvious irony) is the implication that at least some senders of C&D letters know that there’s something shameful in what they’re doing. At least, they are clearly aware that the public will perceive them as attempting to bully their targets into silence. It’s a rare acknowledgement from the copyright industry (or at least from John W. Dozier, Jr., the lawyer who started this) that the public understands how copyright law is used to censor — for otherwise, why object to cease-and-desist letters being displayed? If they thought their requests were reasonable, they wouldn’t mind them being made public.

The question now is how to get more people to understand that not only is it censorship when you get a C&D letter for posting memos (or C&D letters), it’s also censorship when you’re not allowed to translate a book you like, or are prohibited from making a derivative work without the approval of the author of the original work.

[See also articles about this case at Techdirt and Slashdot.]