Author: Karl Fogel

QuestionCopyright.org’s pro bono General Counsel Karen Sandler took part in a panel this past Wednesday at the music conference of South by Southwest: Set Your Content Free (It’s Harder Than You Think).

Moderated by Michael Petricone of the Consumer Electronics Association, the panel also had Hank Shocklee (of Bomb Squad/Public Enemy fame), Julie Samuels of EFF, and Paul Geller of Grooveshark:

 

2012 SXSW Free Content panel participants.

 

Karen’s writeup is over at her GNOMG blog, so please check it out there (for the sake of keeping comments centralized in one place).

Many thanks to Karen for representing!  And note her awesome t-shirt: you can have one too.

Putting the Internet in jail.As reader libreuniverse pointed out in forwarding this, this is big, big news: large Internet service providers, on whom millions of people depend for their Internet service, are going to start acting as copyright police:

“RIAA chief: ISPs to start policing copyright by July 12”

 

The short version: each ISP will maintain a database of “repeat offenders”, with gradually escalating punishments, starting with warning letters, then moving to slowing down the subscriber’s connection, and finally to cutting them off altogether.

This is going to hurt artists.  It’s going to drive unauthorized copying even further underground, onto the so-called “dark networks” where people use encryption and other forms of indirection to hide from the network provider (and therefore from everyone else except the intended recipient) what’s being copied.  Use of such techniques is already widespread, and now it will become common and normal.  This means artists don’t get credit for their popularity: it becomes more and more difficult for an artist to tell who likes them and where and why, because all of the sharing and the commenting and recommendation that goes along with it gets driven underground.  The ISPs are essentially forcing fans to hide their love of their favorite artists.

This is unfairly one-sided — the ISP holds all the cards.  There is no penalty for the ISPs when they make a mistake, so the tilt is all towards heavy-handed enforcement that will prevent all sorts of legal sharing and will inevitably punish innocent users.  I hesitate even to use the word “innocent”, since there’s nothing wrong with people sharing culture anyway, but even given  the distributor-driven bias of current law, this arrangement is unjust and will force many people to waste time fighting mistakenly-applied penalties.

This is nothing new.  The privatization of censorship has been the pattern with copyright since the very beginning, when the Stationers Company was first given a monopoly over printing in England and authorized to burn unapproved books and destroy unapproved presses.  The ISPs are now reconstituting that private sector information police force, first invented by England to combat the spread of seditious pamphlets… and later rejected by the English Parliament as being too great a restriction on freedom of speech.  Will it take us as long (thirteen decades) to come to the same conclusion?

This is what happens when media companies are also Internet service providers.  Anti-trust law typically focuses on confluences of power within the same industry, but this is a case of two mutually symbiotic industries — the management of state-granted monopolies in the form of copyright ownership, and the provision of Internet service to individual customers — that are increasingly run by the very same companies.  No one would advocate that recreational beverage companies also be put in charge of municipal water management, would they?  But that’s effectively what we get when media companies are also in charge of the pipes through which the information flows.  If ever two functions should be wholly separate, it’s these two.

On the bright side, the more people get those warnings from their ISPs, the more allies we’ll have in the fight for the freedom to share culture and to communicate without restriction.  It would be hard to imagine a more effective constituency-building measure — and even better, the ISPs are paying for it.  I’m thinking of requesting a summary of their implementation costs, so we can send them a letter of thanks and a confirmation of that amount as a donation.

Happy New Year!  In 2012, we wish for more and more people everywhere to question copyright, and for more artists and audiences to take the plunge into freedom-based distribution.

Speaking of which, was anyone watching Al Jazeera English when QCO artist-in-residence Nina Paley’s Copying Is Not Theft Minute Meme came on?  We’d love to know more about the broadcast that this image comes from:

Minute Meme "Copying Is Not Theft" being shown on Al Jazeera English (live stream).

Someone sent it to Nina via Facebook — that’s all we know about it so far.  We hope they showed the whole thing, though!

(Anyone with further information, please leave a comment here or contact us.)

follow the moneyIt’s dismaying enough when governments adopt the copyright industry’s PR strategy of confusing copying with counterfeiting — which are unrelated and should be treated separately, as we pointed out last year in sections (4) and (5) of our letter to the U.S.’s Intellectual Property Enforcement Coordinator.

It’s even more disappointing when independent journalism outlets like the New York Times adopt the monopolists’ framing too, apparently unconsciously.  Unfortunately, it happens so often that we can’t stop to point out every instance; however, when it’s above the fold on the front page of the New York Times, it’s worth a mention.

David Barboza’s article “One Entrepreneur’s Rival in China: The State” in the Dec 8th, 2011 New York Times is about how a state-backed company in China used design techniques “stolen” (i.e., copied in violation of contract) from a private company.  In legal terms, this is more about trade secrets and perhaps patents than it is about copyright, but the copying-vs-fraud distinction that needs to be made is conceptually the same, and the Times fails to make it:

According to Cathay [Industrial Biotech], a factory manager stole its secrets and started a rival company that has begun selling a suspiciously similar ingredient, undermining Cathay’s profits. Instead of planning to go public, Cathay is now struggling to stay in business.

 

In this counterfeit-friendly nation, employees run off with manufacturing designs almost daily. But according to Cathay, this was copying with a special twist: the new competitor, Hilead Biotech, is backed by the Chinese government.

(I don’t want to single out Barboza; in enabling this confusion, he’s simply following current house style at the Times.)

Now, we don’t advocate violating contracts, or for that matter trade secret laws.  We merely advocate thinking and talking clearly about what is what.  Unauthorized copying of industrial formulas has absolutely nothing to do with counterfeiting.  Why did the author  toss in that “In this counterfeit-friendly nation…”?  What has it got to do with the story?  Nothing at all.  It’s just that the copyright and patent industries would like you to think of unauthorized replication as being exactly the same as telling lies about a product’s provenance, because everyone knows lying is bad and therefore it is useful (to those industries) to associate certain other activities with lying — activities that, if considered on their own merits, might start to look morally neutral or even positive, such as when a poor nation manufactures important drugs cheaply in violation of someone’s patent, or infringes copyright to print educational materials its students can afford.  So the industries try to confuse these issues all the time, pretending different things are the same, until the minds of government officials and journalists go numb and they simply repeat what they’ve heard.

This is how global copyright enforcement provisions become part of the “Anti-Counterfeiting Trade Agreement” (ACTA).  The name is no accident.  The U.S. copyright and patent enforcement authorities have gotten the message, and the message is “Confuse the public as much as possible, by pretending that copying is the same as fraud.”  They may not even be aware they’re following someone else’s talking points.  To them, this is simply the language that is used to discuss these issues — it feels natural.

But the New York Times doesn’t have to play along.  They manage, on occasion and in other areas, to be properly skeptical of both corporate and government rhetoric, and it would be nice if they did so for this topic too.

U.S. Senator Ron Wyden

Following up to our earlier article:

Public opposition to the SOPA / PROTECT-IP bills has been very strong, and the U.S. Congress is taking notice.  The bills are losing momentum, and one of the clearest voices against them has been U.S. Senator Ron Wyden. While we don’t agree with all his positions on copyright, he’s consistently opposed anything he views as interfering with freedom of speech (if only he saw how copyright interferes with freedom of speech on a daily basis — but we understand that that argument hasn’t made it to the U.S. Senate yet, because of how successfully the copyright lobby has framed it as a property issue). Senator Wyden, to his credit, is threatening to filibuster the bill if it ever comes to floor debate, and is offering to include your name in the filibuster if you’d like. To sign up, go to StopCensorship.org. I just did, and I hope you will too.

real copyright educationjust because justice is blind doesn't mean the law has to be[Update 2011-12-06: Jennifer Novotny’s article in the Stony Brook Press is now up.]

We got a question from Jennifer Novotny, a student at Stonybrook University in New York, about the slow-rolling disaster that is the E-PARASITE/SOPA bill in the U.S. Congress.  There are many bad things to say about this bill, most of which have already been said elsewhere (we give some links below).  But with Jennifer Novotny’s permission, we’re sharing her original question and our response, which focuses on the collateral damage this law would do to the Internet itself, and on the general impossibility of ever successfully implementing the kinds of restrictions Congress is attempting here.

Jennifer E Novotny writes:
>I’m writing an article for a journalism class on the subject of
>digital piracy in relation to the recently proposed Stop Online Piracy
>Act. I hoped you would be able to answer a couple of questions for me.
>For instance, do you believe the bill, if passed, would actually have
>any affect on piracy? I know there is a lot of debate and the idea
>that the bill would “break the internet” and I wondered what your
>specific opinions were on this matter.
>
>I look forward to your response,

 

Hi, Jen.  Thanks for writing. 

No, the bill won’t have any noticeable effect on so-called “piracy”.  It will just push people who copy into using more and more sophisticated circumvention techniques and technologies.

That includes both legal and illegal copying, by the way, because law enforcement has never been able to reliably distinguish between them by automated means — after all, both activities are just copying.  It’s very similar to how there can never be a reliable automatic means of differentiating between “good speech” and “bad speech”.

The bill would do much more to stop everyday exercise of civil liberties than it would do to stop unauthorized copying (which we do not believe should be unauthorized anyway, but in any case it should not be an excuse to interfere with the already-too-limited range of authorized copying our laws still permit).

For example, the bill allows web sites to be cut off from the Internet, without any meaningful adversarial due process, based on the activity of a minority of a site’s users.  A more subtle problem with the bill is that it undermines the Internet’s Domain Name System.  By cutting sites off in the current central DNS “address book”, it encourages more people to use the already-existing alternative DNS address books (from which the targeted site would not have been deleted).  So not only would the bill do nothing to stop the alleged problem it is trying to solve, it would also — if that clause were invoked frequently enough — gradually encourage the fragmentation of the Internet.

Even if one thinks that illegal copying is an infection that has to be cured (which we emphatically don’t agree with), SOPA’s solution is analogous to curing it by removing the patient’s circulatory system!

 

Two excellent articles about SOPA:

  https://www.eff.org/deeplinks/2011/11/stop-online-piracy-act-blacklist-any-other-name-still-blacklist

  http://arstechnica.com/tech-policy/news/2011/11/the-stop-online-piracy-act-big-contents-full-on-assault-against-the-safe-harbor.ars

 

  [and a third added later: http://www.itworld.com/security/223845/piracy-bill-could-waylay-floss-projects]

 

Hope this helps,
-Karl Fogel

In followup correspondence, I asked her: “Are you planning to release your article under a free license?  (I realize it’s for a class, but that doesn’t mean it can’t be released if you want it to be.)”  She said she was just working toward the class due date and hadn’t really contemplated it yet.  I wrote back:

I realize the question came out of left field :-).  But we always ask it, because frequently journalists or researchers write us to get material for an article they’re going to publish… And naturally, given our mission, we’d like to point out to them that they can put that article out under an open license that allows re-use, etc.

It’s a way of bringing home the fact that these ideas are not theoretical, but rather are something that anyone can do.

If you’re not already swamped with readings, this article (a couple of pages log) explains some of the real-world effects of releasing things under open copyright:

  http://questioncopyright.org/translations_a_tale_of_two_authors

Of course, someone who’s worried about their Internet being cut off or their web site being removed from the global Domain Name System would be less likely to subtitle, translate, and otherwise re-use works, even when there might be lots of reason to believe that the original author would be fine with it.  Laws like E-PARASITE/SOPA increase the risks of being culturally active.  If the bill’s purpose is to drive production out of the hands of actual creators and into the hands of corporations that can afford whole legal departments, it’s a good start.

Free Culture is something you do.  The more of us do it, the more obvious it will be to others that laws like E-PARASITE/SOPA have no place in a free world.

Richard StallmanThis is a bit of inside baseball [*] in the copyright reform world, so we’ll understand if you wonder what the big deal is.  But for those of us who were first inspired — as I was — by Richard Stallman’s radical and prescient commitment to software freedom, his unwillingness to go the whole way and embrace Free Culture for non-software works is puzzling.

Recently we had some correspondence with an Internetizen known to us only as “openuniverse” or “libreuniverse”, who resigned his membership in the Free Software Foundation over Stallman’s insistence on exercising his state-granted monopoly to prevent derivative works from being made of his writings and speeches.

I phrase it that way for a reason.  Elsewhere, you might see it expressed as “Stallman’s insistence on using his copyright to control what can be done with his works”.  But Stallman himself understands these issues very well, and could easily spot the unspoken assumptions in that way of putting it.  No one was asking to change his works, or to attribute to him thoughts or expressions not his. No one’s existing copies of Stallman’s works would be changed.  Rather, openuniverse wanted to make a new work, using material from one of Stallman’s books — and Stallman quashed it.

Specifically, openuniverse asked:

i want to make a bash script (or python script) that is free software and contains the entirety of your book’s text. (though it *might* have some parts in a different order, i’m not sure.)

(In this context, “script” means a computer program.)  Stallman’s reply, which is consistent with what he’s said elsewhere, was:

Sorry, you can’t incude my essays in such a program.  Free programs can read my essays, but they need to be separate.

Note that Stallman did not say “Okay, just please make sure you adjust the attribution if you change the text” or anything like that (not that he would have needed to; it’s a widely-followed practice in Free Culture and openuniverse would obviously have done so).  Instead, Stallman imposed a blanket restriction on openuniverse’s freedom to use an existing work — or rather, took advantage of an unfortunate feature of modern law that grants him that monopoly power.  As openuniverse points out:

… they can’t be synced with video. that means i can read the essays over a podcast, but no one can make a video that uses the podcast… not without “fair use” anyway, which won’t apply to the whole essay that stallman wants intact.

What will it take to get Richard Stallman and the Free Software Foundation, who as much as anyone started the modern Free Culture movement, to see that the same freedoms they advocate for software are just as important for all works of the mind?

Well, openuniverse had one idea: a Stallman Remix Challenge :-).

…i really hope you’ll consider hosting a “remix stallman” contest. the best goal is to have WORTHY remixes of his speeches and writing, stuff he insists be no-derivs so people won’t take him out of context. i’d love to myself, i just don’t have the reach your organization does, which daily reaches tons of people capable of remix.

I’m not sure we have the world-shaking reach openuniverse imputes to us, but for what it’s worth, I think Remix Stallman is a great idea!  His writings can be found many places online — his website , his book “Free Software, Free Society”, and the FSF’s Philosophy section are good places to start, but a search will turn up plenty more, including videos of speeches he’s given.  Some of his works are under restrictive licenses, others are not; you’ll have to look for yourself and figure out what amount of legal risk you’re willing to take (that’s just one of the burdens copyright law places on remixers).

But we hope some people will try.  A well-done remix is a thing of beauty, and can be far more effective than any “straight” argument.

A very interesting announcement from Blackboard.com:

… Blackboard will now support publishing, sharing and consumption of open educational resources (OER) across its platforms. […] Support for OER enables instructors to publish and share their courses under a Creative Commons Attribution license (CC BY) so that anyone can easily preview and download the course content in Blackboard and Common Cartridge formats…

What makes this big news is that these kinds of initiatives usually use one of the non-free Creative Commons licenses: one containing either no-derivatives (“ND”) or non-commercial (“NC”) clauses or both.  Instead, Blackboard.com bucked the trend and opted for full freedom: by offering CC-BY, they’re encouraging users to choose a truly Free Culture license.  Let’s hope others follow their fine example!

Kudos to Blackboard.com.  And congratulations to the educators and students who will now be able to share, translate, re-use, and transform educational materials for any purpose, without having to ask permission first.

Blackboard.com logo

Creative Commons Attribution license (3.0)

Question Copyright symbol ("C" inside a question mark)What is free culture?

Free culture is a growing understanding among artists and audiences that people shouldn’t have to ask permission to copy, share, and use each other’s work; it is also a set of practices that make this philosophy work in the real world.

The opposite of “free culture” is “permission culture”, which you probably don’t need to have explained in detail because you’re familiar with it already.  In the permission culture, if I write a book and you want to translate it, you have to get my permission first (or, more likely, the permission of my publisher).  Similarly, if I wrote a song and you want to use it in your movie, you have to go through a series of steps to get clear permission to do so.  Our laws are written such that permission culture is currently the default.

In free culture, you just translate the book, use the song, etc.  If I don’t like the translation or the film, I’m free to say so, of course, but I wouldn’t have any power to suppress or alter your works.  Of course, free culture goes both ways: I’m also free to put out a modified copy of your movie using a different song, recommend someone else’s translation that I think is better, etc.  These are idealized examples, for the sake of illustration, but they give the general idea: freedom takes precedence over commercial monopolies.

There is plenty of free culture out there already.  In the past all culture was free culture; in today’s legal environment, the way people create free culture is to put their work out under a free license — a special copyright license that explicitly allows most of the activities that standard copyrights prohibit.  Free culture means you can perform it, record it, distribute it, use it in your own works, and anything else.  It does not mean you can claim credit for things you didn’t do; that would just be fraud or plagiarism (fortunately, it turns out that allowing works to spread freely is the best way to prevent plagiarism anyway).

Free culture artists make money too.  Mostly they do so in the same ways artists always have: direct audience support, commissions, patronage, government and academic support, etc.  (Copyright-controlled distribution has never been a major source of funding for art, and wasn’t designed to be.)  Free culture artists make a point of working with their audiences instead of against them.  They inhabit the Internet as natives, instead of stumbling around in awkward space-suits made of contracts and copyrights and permission forms whose real purpose is to cause enough friction that a corporation has to be paid off to reduce it.

Distilled into a few basic principles, free culture means:

  • Artists can use each others’ work without asking permission.  If you’re not already convinced that freedom is valuable in itself, read this.  Or this.  Or this.
  • People can receive and transmit art by whatever physical means are available to them.  We’ve got an Internet — let’s not be afraid to use it.
  • The distinction between audience and artist is fluid, and should remain so because culture is participatory.  Free culture means anyone can engage with art and other works of the mind, however they want, without hiring a lawyer first.
  • Artists are paid for what they do, not for what other people do.  Artists should be paid up front for the work they do.  But charging again for music every time a copy is exchanged, for example, is silly.  The musicians didn’t do extra work to make more copies, and the copies are transactions between third parties.  In the long run, making it harder to share art hurts artists as much as audiences.
  • Monopolies hurt everyone except the monopolist. Permission cultures tend to concentrate control in the hands of people who specialize in accumulating control, without doing much to help artists.  There’s nothing wrong with running a business that deals with art and artists, of course; the problem isn’t middlemen, it’s monopolies.

One common argument you’ll hear against free culture is that “it should be the artist’s choice” — that if an artist chooses to put their work out under a free license, that’s fine, but they shouldn’t be required to do so.  However, this argument is not as convincing as it first seems.  When an artist (or, let’s be realistic, a corporation) is given the power to restrict what other people can do with their own copies of things, that takes away everyone else’s choice.  When two “choices” oppose each other, we cannot resolve the issue by appealing to choice itself as a value — we have to actually look at which choice is better.  Free culture’s answer is that freedom should take precedence; that since no one forces an artist to release their work, once they do release it, it should really be free to spread.  Remember, this isn’t about credit: of course artists should be properly credited for their work.  But that’s very different from controlling who can see and use the work.

These issues simmered until the Internet came along, and then they really started to boil.  Copying became physically so cheap as to be almost costless, and yet the laws against copying only got tighter and tighter, as a frightened industry lobbied for longer copyright terms and more restrictions.  This is the dynamic that has given rise to the free culture movement.

(By the way, it was that industry who invented copyright in the first place — in the late 1600s and early 1700s, printers devised it as a replacement for an expiring censorship-based monopoly system.  I can’t emphasize that enough: a system designed by business for business is not going to put artists’ interests first, and that’s why it never has. Free culture is not anti-business: there are lots of ways to make money, and if some of those ways involve helping artists and audiences connect, that’s great.  In a sense, free culture stands for truly free markets.  It is merely against monopolies that force artists and audiences to get permission, usually for a fee and under restrictive terms, to use or access certain works.)

If you’re interested in learning more about free culture, there’s lots of material on this site and elsewhere on the Internet (the Students for Free Culture site is a good resource, though I think it could be clearer on exactly which freedoms are important).  There’s an in-depth article here that covers the issues more thoroughly and with more historical context; and here is a good analysis of the harms done by permission culture.  If you like what you read about free culture and want to support it, there are lots of things you can do.  Whenever possible, support artists directly and by choice, not through intermediaries and under duress.  Help sponsor an art project on Kickstarter, and encourage your favorite artists to use direct audience support and release their works under free licenses.  Translate, edit, or otherwise contribute to a free cultural work.  Release your own works under free licenses.  Share this article :-).  Spread skepticism whenever you see special pleading, especially in word choice: copying is not “theft”, “filesharing” is really “music sharing”, a copied DVD is not equivalent to a “lost sale”, etc.

Free culture is culture.  That’s all it has ever been.  The question is simply how much we value freedom.