Author: Karl Fogel

It’s been a little over a month since the November 6th fire that destroyed the scanning center building at the Internet Archive.  No one was hurt, but as Archive founder Brewster Kahle wrote in a blog post from November 6th (emphasis added):

We lost maybe 20 boxes of books and film, some irreplaceable, most already digitized, and some replaceable.   From our point of view this is the worst part.   We lost an array cameras, lights, and scanning equipment worth hundreds of thousands of dollars.  Insurance will cover some but not all of this.

The Internet Archive is far more important to the long-term interests of Internet users than, say, Facebook, and they’ll make a little go a long way.  If you can, please donate to help them recover and grow.  I just sent in a check for $200 — which really means $800 for the Archive, because…

Donations made before 2014 are being matched three-to-one by an anonymous donor!

So, if you can, please give.  There are few more obvious calls on the Internet right now!

I can’t stress this enough — if you’re still wondering about the connection between copyright and civil liberties, nothing could make it clearer than Eben Moglen’s four-lecture series Snowden and the Future at Columbia Law School in New York City. The fourth lecture is this coming Wednesday, December 4th, at 4:30pm (Eastern US) in Room 101 of Jerome Greene Hall:

If you are in New York City on Wednesday, we strongly recommend going to that fourth and last lecture. Transcripts of the first three are already online (though I found them worth watching on video). Quoting from the third:

privacy is an ecological rather than a transactional substance

Moglen goes on to explain why very eloquently. It is a point of prime concern to copyright resistors: when every email, every post in a social network, every online communication among human beings, is subject to surveillance, then the system will always err in one direction: toward over-enforcement of already overly-strong restrictions. Surveillance naturally serves monopoly: the watcher is centralized, the watched decentralized. Thus, for example, it becomes your problem to fight fraudulent takedowns and other censorship, rather than being the censor’s problem to justify the restrictions in the first place.

Thursday, 12 Dec: Eben Moglen and Bruce Schneier:

Then on Thursday the 12th at 6:30pm ET, Prof. Moglen will be talking with the renowned security expert Bruce Schneier about what we can learn from the Edward Snowden documents and from the NSA’s efforts to weaken global cryptography, and how we can keep free software tools from being subverted. That event is also at Jerome Greene Hall; see here for details.

There is no freedom of thought without freedom of communication, and ultimately there is no freedom of communication without privacy. Privacy means secrecy, anonymity, and autonomy for individuals freely associating.

Monopoly will never argue for this. People have to do it. Copyright restrictions originated in centralized censorship and are increasingly supported by centralized surveillance. No one is analyzing the larger dynamic of surveillance better than Prof. Moglen. If you’re in New York this Wednesday and next Thursday, you know where to go.

Eben Moglen will be giving a series of four public talks in New York City, entitled “Snowden and the Future”, starting Wednesday, October 4th (the other dates are Oct. 30th, Nov 13th, and Dec 4th, all Wednesdays).

All talks will take place at Columbia Law School, in room 101 of Jerome Greene Hall (map), from 4:30pm – 5:30pm.  For those who can’t be there, streaming video of the events as they take place will be available from snowdenandthefuture.info.

Why you should go to these talks:

The connection between copyright restrictions and civil liberties violations is clear and unavoidable.  We’ve written about it here (and here and here and here).  It’s been the key to the Pirate Party’s political success in Europe, and the subject of one of Nina Paley’s excellent minute memes.  Eben Moglen,  the founder and director of the Software Freedom Law Center, is one of the clearest thinkers talking about digital freedom today — and one of the most inspiring: a previous public lecture of his led directly to the creation of the Freedom Box Foundation.  He’s also a terrific speaker.  You won’t be disappointed; go, and bring all your friends.

The surveillance state is aided and enabled by information monopolists who assert that watching people’s Internet usage for unauthorized use of copyrighted material is so important that it trumps both privacy concerns and freedom of expression.  That’s why we keep a close eye on surveillance news here at QuestionCopyright.org, and encourage you to as well.

For more information on these lectures, visit snowdenandthefuture.info.

QuestionCopyright.org has pledged $500.00 to the Tupi 2D Animation Software Kickstarter campaign, and we’re posting this to help spread the word.

Please join us and the other project backers, with whatever amount you can pledge!  Remember, your pledge is only called in if Tupi reaches their $30,000 goal by September 26th.

Tupi is already runnable code.  They’re on version 0.2 right now, and their goal in this campaign is to reach their 1.0 feature set, including installers for Macintosh and Windows.  (It’s already packaged for Debian and Ubuntu GNU/Linux; I’ve installed it.)

Our Artist-in-Residence Nina Paley (who also backed Tupi’s campaign personally) explained very well why projects like Tupi are important, in her post “It’s 2013.  Do you know where my Free vector animation software is?”.  When you’re an artist, you’re dependent on your tools — and that means when someone has a monopoly over your tools, they can play havoc with your art and your livelihood.  That’s exactly what happened with Adobe’s Macromedia Flash 8.  Read Nina’s post for the details, but basically Adobe decided to remove features from their Flash authoring software, in order to sell those features separately in other programs.  As Nina points out, the problem with this isn’t just the extra expense, it’s the increase in workload and production time.  And the looming threat that they might do it again in the next version.  They can yank the rug out from under their users at any time, and there’s nothing the users can do about it, except refuse to upgrade (which becomes less and less feasible as time goes on, of course).

Free, open source programs can’t do this to their users, because no one has a monopoly over the software.  If one group puts out a version of the software that is missing important features, users will shrug and start using a competing fork that treats them better.  It also means that if enough artists need a particular bugfix or improvement in the software, they have a path to make it happen — they don’t have to be programmers, as long as they can band together and hire programmers.  Users are not vulnerable to arbitrary decisions handed down from management, they way they are with proprietary software.  (Of course, the more likely scenario is that artists would band together and just pay Tupi’s original development team to make the necessary changes.  The fact that the users have the option to go elsewhere is precisely what makes the original authors likely to be responsive to true demand — a free-market ideal that proprietary software is structurally biased against attaining.)

Tupi has another thing going for it: Nina, an extremely experienced animator who knows the major competing proprietary tool very well, has publicly volunteered to test and provide feedback to open source animation projects, including Tupi.  (Nina says “Tupi’s strength is its simplicity; it’s great for kids and anyone new to animation. It doesn’t yet have the power I need to produce feature films, but its development is a good thing for all of us. …”)

So please help spread the word about Tupi’s Kickstarter campaign! (Here are links to retweet or redent our posts about it.)  You can read more about Tupi here, and this is their campaign video:

A documentary film company making a movie about the “Happy Birthday” song has filed a lawsuit against the music monopolist Warner/Chappell, asking it to return the hundreds of millions of dollars it has collected over the years in improper royalties for the public domain song “Happy Birthday”.

Claiming a monopoly they don’t even have, and then extorting people for it?  I just have no problem with suing over that.  This issue has been raised for years, but the amount Warner/Chappell asks from any given target is always less than it would cost to fight it in court, so people just paid up.  Until now.  (Warner/Chappell is hardly alone in this business model, by the way.)

The evidence in the filing looks pretty thorough, too (thanks to Techdirt and BoingBoing for their posts on this):

The full lawsuit, embedded below, goes through a detailed history of the song and any possible copyright claims around it. It covers the basic history of “Good Morning to You,” but also notes that the “happy birthday” lyrics appeared by 1901 at the latest, citing a January 1901 edition of Inland Educator and Indiana School Journal which describes children singing a song called “happy birthday to you.” They also point to a 1907 book that uses a similar structure for a song called “good-bye to you” which also notes that you can sing “happy birthday to you” using the same music. In 1911, the full “lyrics” to Happy Birthday to You were published, with a notation that it’s “sung to the same tune as ‘Good Morning.'” There’s much more in the history basically showing that the eventual copyright that Warner/Chappell holds is almost entirely unrelated to the song Happy Birthday to You.

The Techdirt post shows the full text of the suit.

[This is an editorial we submitted to the New York Times. They didn’t print it, alas — don’t worry, we’ll keep trying with other pieces — but we still think its message is important, so we’re publishing it here.]

In the last weeks of 2012, Dr. Oliver Sacks published a memorable essay in the New York Times Book Review, “Reading the Fine Print”, about how fewer and fewer books are being made available in large-print editions, and how this matters more and more to him as his vision deteriorates.

Let’s stop to ask: Why are they not available? Who or what, exactly, is behind this scarcity?

Sacks’s essay does not contain the word “copyright”. He looks everywhere else, attributing the decline of large-print editions to the rise of audiobooks (which he dislikes because they are a less engaging experience) and of digital reading devices like the Nook and the Kindle (which are difficult for him to use). After visiting the ravaged large-print section of the Strand bookstore in New York, he writes: “I came out frustrated, and furious: did publishers think the visually impaired were intellectually impaired too?”

This is the closest he comes to identifying the real cause of the problem, a cause entirely of our own making. If there is a ready demand for large-print books — and there is — then what can the explanation be, in a free market, for the steadily shrinking supply?

The answer, of course, is that we do not have a free market in books. We have a monopoly-controlled market: if the copyright holder decides not to offer a large-print edition, then those who need such an edition are out of luck. It does not matter that the readers would happily subsidize the print runs themselves, Kickstarter-style; it does not matter that many smaller and specialty publishers would gladly step into the gap to supply what the big players have decided isn’t worth the effort; it does not matter that on-demand print services would eagerly make large-print texts available in an instant, bound and ready to ship, if only they were allowed to. The system we use now does not permit any of these bottom-up solutions to happen at sustainable scale, because in a world where we’ve just built a gigantic, globe-spanning, low-cost copying machine — the Internet — we have also elected to keep, and indeed tighten, a monopolistic distribution system originally designed to regulate printing presses in the late seventeenth century.

That word “monopoly” shouldn’t be controversial. We’re used to hearing it about things like liquor distributorships in pliant jurisdictions, or energy utilities that successfully legislate competition out of the way. But if the word applies to anything, it surely applies to copyright: a government-enforced right to be the sole supplier of a text, song, etc, including the right to dictate which formats and which distribution channels copies and variants may circulate in. You’d think we’d be fairly cautious in handing out such a power, but instead in recent decades the monopoly lobby (to be fair, the sound recording and movie industries took the lead, more than the book publishers) have gotten it extended far beyond its original scope, both in terms of its per-work duration and of its censoring powers.

Once you start to see it as a policy choice, rather than as a law of nature — the latter being how that lobby would prefer you to think of it — all sorts of phenomena begin to look different. It’s not just about large-print editions. Do you have any idea how many translations are suppressed because rights cannot be negotiated? How many audio books are not recorded because the sole rights-holder couldn’t be interested enough to do it themselves, yet is still willing to prevent anyone else from doing it? Did you know that neither the FDA nor private-sector patient protection organizations can review crucial software code in medical devices, because the manufacturers assert copyright and refuse to circulate the code?

For that matter, should George Lucas be the only person in the world who can make Star Wars movies, no matter how badly he botches them? The issue is not that Lucas shouldn’t be free to make any movie he wants, it’s that the pernicious nature of monopoly, and of the “get permission first” culture it creates, means there is not true competition in the market: no one else is free to try and do better.

The industry’s response to this would be, as it has been for centuries, that it is the only way to pay authors. This is laughable. The system was not designed to pay authors and mostly does a lousy job of that. It was really designed to subsidize, and to a lesser degree regulate, distributors, which it accomplishes very well — otherwise they would not argue so regularly and noisily for its expansion.

There’s no shortage of concrete recommendations to improve the situation. My organization is but one of many calling for us to step back from the brink and return to treating culture as something people don’t need permission to participate in. For starters: bring back registration requirements and renewals; require a fee to maintain a monopoly license; distinguish attribution law from copying law (their current conflation is both the result and the servant of the monopolist’s cause); do away with retroactive extensions, retroactively; shorten copyright terms; etc.

But what we need first is a fundamental change in how we think about copyright. It is not a natural law, nor is it even rooted in the common-law doctrine of property ownership. It is a monopoly created by statute, with only the purposes and powers given to it by statute. If it’s not doing what most people want it to do, we can and should fix it, without sentimental and historically suspect notions that a three-century old industrial regulation is somehow the shield of the artist. Indeed, the current system hurts artists perhaps most of all.

There are signs that the dam is starting to break. Recently, a researcher with the Republican Study Committee circulated a position paper [1] that said nothing more shocking than what I’ve said above: that copyright is a monopoly-based policy, that it should ideally be shaped toward the public good with all assumptions on the table for inspection, that such reconsideration has not yet happened, and that a party that wants to be in tune with younger voters and with future trends would do well to start looking at the issue with fresh eyes. Such is the strength of the Hollywood lobby that those ideas would have been unthinkable for a major party researcher to produce even a few years ago. Apparently they are still pretty edgy, because the position paper was immediately disavowed by the RSC and the researcher, Derek Khanna, was fired shortly thereafter. But he was right, and I hope Oliver Sacks is reading a large-print version of his paper right now.

[1] We originally referred to Derek Khanna’s paper for the Republican Study Committee as a “draft”, but since then have learned that it was not merely a draft — it was a finalized position paper, later retracted. Techdirt has more about the incident, and Khanna’s paper itself is here: Three Myths about Copyright Law and Where to Start to Fix It.

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:

Thanks for your response. Yes, I would like to pursue your materials for online training as you suggest.  Please either recommend someone who you would feel comfortable partnering with (ie allowing this person use of your materials in courses) or let me know if you are open to looking at candidates that I can suggest.

Can you bullet the 3 top subject areas that you would be interested in contributing course materials if you would like to pursue this idea. I can understand you are very busy with your existing projects, so if it is too time consuming to consider further, that’s no problem.

I would prefer to serve the audience if you wish to share materials that would be particularly useful as I continue in the cause of tech publishing moving information to the people who need it most.

I’d love to know what readers think of my response below, because (as our artist-in-residence Nina Paley has also found) this comes up all the time, and it’s difficult to know how to answer it clearly enough.  Here’s my second response:

Well… I think you may be new to free licensing? 🙂

It means you don’t have to ask my permission nor necessarily have my involvement.  My books are released under open copyright.  The details (for the book most likely to be of interest to [redacted], I guess) are at http://producingoss.com/.

This is also how open source software works.  I just release my books under the same kinds of terms as used for open source software.

If I were involved in developing this project with [redacted], then I would charge for my time.  But I don’t charge for the use of materials I wrote, because I’ve renounced the monopoly powers that would otherwise require you to get my permission.  You can just use the materials, including making modifications and adaptations.  Freedom means freedom! And I’m totally serious when I say I’d love for you to take advantage of it, if you want to.

Best,
-Karl

 

Yesterday, we lost one of the smartest, most politically aware, and most dedicated advocates for freedom we have had so far in the Internet age; we also lost a truly engaged, honest, and fundamentally good-hearted young person, who was unfairly hounded by U.S. federal prosecutors for a non-crime (in fact, an act intended as a service) that they have misrepresented throughout their prosecution.

Aaron Swartz took his own life yesterday, at the age of 26.  He was facing multiple felony charges; if convicted he could have gone to jail for thirty-five years, and owed over a million dollars in fines.  His “crime” was that he downloaded too many articles from JSTOR, an online service providing access to academic articles.  He downloaded more articles than JSTOR’s terms of service allowed, therefore he was in violation of their terms of service, therefore (according to the prosecution’s interpretation) he violated the Computer Fraud and Abuse Act.  JSTOR themselves were not interested in pressing charges — this was federal prosecutors deciding to make an example.  Now they have unintentionally succeeded, tragically and in a way that I hope, for the sake of their own souls, they never anticipated.  Stubbornly, and characteristically, Aaron was unwilling to take a plea deal and be labeled a “felon” when he had done nothing wrong; he insisted on pleading not guilty.  At this point, with JSTOR not cooperating, the defendant clearly feeling sincerely innocent, and a great many people already publicly defending Aaron, the prosecution team should have taken a step back and asked themselves “Why do we need a kid to go to jail for most of the rest of his life for something that’s not even wrong enough for the supposed victim to want to press charges?  What good would it serve?”  Instead, they utterly failed to understand Aaron’s well-articulated position on freedom of information, failed to see that making copies of articles from an academic service is not a property rights issue nor should even be a criminal matter, failed to consider that sending a young man to jail until he’s past sixty just to make an example — a pointless example, at that — would be profoundly immoral.

There are many remembrances already on the Internet, but two in particular stand out: Rick Perlstein’s and Lawrence Lessig’s.  Both are personal remembrances, but both make the point (Rick even more directly in a separate Facebook post) that it would be a mistake to reflexively pathologize this and blame it simply on Aaron’s occasional depression.  In Rick’s words, from a Facebook conversation: “I would downplay the depression angle. The big piece he wrote about his depression came when he was 17. When I talked to him about my own depression a year ago, he really didn’t respond as a fellow-traveler. I can’t say precisely, but I don’t think it was a huge part of his life. Having his soul gnarled down to a nub by a Javert had much more to do with it, I think.”  You’d be depressed too if the might of the U.S. federal judicial system seemed dedicated to sending you to jail for most of your life over an essentially altruistic act that harmed no one.  I can’t read Aaron’s mind and don’t know what he was thinking, but the relentlessness of that system bearing down on him was there, every day, with no sign of respite.  Whether one is prone to depression or not, that’s a hard, hard road.  And your friends and allies may defend you till they’re blue in the face, but they’re not going to be there in the jail cell with you.

Lessig was a close friend of and a defender of Aaron, and his post shows his justified anger now.  With both respect and sympathy, I still think it’s important to disagree with one small portion of what he said: “…if what the government alleged was true … then what he did was wrong. And if not legally wrong, then at least morally wrong. The causes that Aaron fought for are my causes too. But as much as I respect those who disagree with me about this, these means are not mine.”

As we wrote here when he was charged, Aaron didn’t do anything wrong.  He made copies of articles that were not confidential, that are now publicly accessible anyway, and all indications are that he was doing so for altruistic purposes.  He did engage in some subterfuge, to work around barriers to access, but there’s a good argument to be made (no doubt the courts would not have permitted him to make it) that this was justified, or at least defensible.  Lessig has this one thing precisely backwards: what Aaron did was not morally wrong at all; it may have been legally wrong, though even that’s not clear.  (Peter Sunde’s touching post about Aaron, which I only saw after writing the rest of this, makes the same point.)  At least some of the federal charges rely on an overly broad interpretation of the Computer Fraud and Abuse Act that essentially outsources key determinations to private web site operators’ Terms of Service agreements, thus criminalizing matters that should be purely in the domain of civil law.  Again, note that JSTOR refused to press civil charges.  If you want to understand in more technical detail what Aaron did and the context in which he did it, read Alex Stamos’ excellent post: The Truth About Aaron Swartz’s “Crime”.  And for a broader understanding of Aaron’s work, you really should read Tim Carmody’s amazing piece “Memory to myth: tracing Aaron Swartz through the 21st century”.

No one’s life should be reduced to a symbol for a cause.  Aaron was a truly engaging person, loved by many, and as serious as one could be about living life with a purpose.  We first met during a trip to Europe in the winter of 2006-2007, where we ran into each other in the same cities (Berlin, Stockholm) — not as much of a coincidence as it sounds, as we were there for some of the same reasons: to meet with some free culture activists in Europe, as well as just have a good time on the road, and he was traveling with a group of friends some of whom I knew as well.  One night we were all staying in the same room (in the apartment of a generous fellow traveler, in the other sense of the word “traveler”) talking, and I happened to catch a glimpse of what Aaron had packed for his trip to Europe.  He was 19 or at most 20 at the time.  His bag must have been three-quarters full of books — serious, hardcover books on history, politics, science, economics, and many other topics.  I remarked on this, and to hear him explain it you would think it was the most natural thing in the world to pack only a few changes of clothes but enough reading material to run several simultaneous in-depth academic seminars.  Subsequent conversations, then and later back in the U.S., made it clear that this was no affectation: he had brought the books because this was a chance to read, and he loved learning.  He was really reading them, too, and was happy to talk about them.  I didn’t give him enough credit in the first couple of conversations; his well-deserved intellectual reputation preceded him, but I didn’t understand how much he could already know and think at 19.  I soon corrected that mistake.  His observations could be sharp and probing, but what stood out for me was his conversational maturity.  The stereotype of the young hotshot is that he has to win every argument — Aaron didn’t, and in fact he was an excellent, attentive listener as well as having interesting things to say and, yes, brilliantly holding the floor when it was appropriate to do so.  As much as any of his many accomplishments, or his substantial intellectual gifts, it was this self-imposed maturity that I found most impressive.  He already knew what he believed in, and that he had the ability to get things done for the causes he made his own.  What probably took real work was making himself able to appreciate and learn from and collaborate with those less talented or less knowledgeable than himself — which is just about all of us — and he succeeded.  He did it.  He became (or perhaps always was, and just had to grow into it) a mensch, someone any of his friends, colleagues, and fellow travelers were glad to see and talk with at any time.  And now he’s gone.  He will not be forgotten.

Update: many moving tributes are now being collected at rememberaaronsw.com, and the Internet Archive has started the Aaron Swartz Collection to form a permanent online digital archive of Aaron’s life and work; if you have emails, photos, video, or audio of Aaron, please contribute it there.

Y’all aware of the good work that unglue.it is doing?

Unglue.it has a very simple mission: to free digital books.  Their method is simple too: get people to chip in money (crowdfunding style), then pay the rightsholder to release the book in digital form under a liberal license.  The crowdfunding method is the same threshold pledge system that Kickstarter uses: pledgers only pay if the campaign succeeds.

Unglue.it will allow the rights holder to choose a non-free license that limits commercial use or derivative works, but at a minimum unglued works always get at least verbatim copyability.  And as it happens, their most recent success, Oral Literature in Africa,was released under a truly free license, the Creative Commons Attribution license.  The amount of freedom in the world has strictly gone up, thanks to their campaign, and a good work has been liberated.  Here it is, if you want to grab a copy!

For a while, everything fell apart because Amazon decided it couldn’t allow the crowdfunding model anymore.  But the folks at Unglue.it are pretty persistent, and they started looking at other payment processors.  (By the way, Eric Hellman’s post on choosing a crowdfunding payment processor for Unglue.it is a great summary of the options out there.)  They eventually solved the problem, and they’re back in business.

So: what do you want liberated next?