Author: Karl Fogel

There’s a very interesting article over at TechRadar about how draconian copyright infringement penalties actually give copyright monopoly holders a motivation to encourage infringement:

In a somewhat cynical table-turning exercise, a German anti-piracy body seems to be encouraging illegal downloading of music and other media in an effort to strong-arm money out of lawbreakers.

DigiRights Solutions (DRS) from Darmstadt has circulated a presentation to potential clients explaining how they might make more money by pursuing illegal filesharers than from regular, legal sales. …

This was inevitable, really. It’s a kind of reverse tort law: if the penalty for a single infringement is a sufficiently high multiple of the price of a legal acquisition, and most people will pay up without fighting, then it makes more sense for the monopoly holders to try for infringement penalties in the first place.

We often hear people say “Look, copyright may not be perfect, but there would be lots of unintended consequences if we just did away with it or replaced it with attribution laws. You can’t predict everything that would happen!” Indeed, no one can. Our response has always been that there are unintended consequences either way, but that therefore it makes most sense to start from a position of no monopoly and no censorship. This lovely development should put to rest any doubts that there unintended consequences to copyright enforcement just as much as there are to copyright reform.

What’s the best license for professionals to use? Our fantasy answer is CC-PRO, the Creative Commons license we’d like to see…

Professional work deserves to be recognized.

CC-PRO is a Creative Commons license that meets the specific needs of professional authors, artists, and musicians. CC-PRO uses Creative Commons’ most powerful license to ensure high-quality work goes further and is recognized more. It offers the strongest protection against both plagiarism and censorship. It invites attention, collaboration and recognition from your most important audience: other professionals.

Strongest protection against:
plagiarism
censorship
abusive exploitation

Promotes:
name recognition
income
archiving and preservation
distribution
collaboration with other professionals

Professional work deserves to be recognized. Use CC-PRO.

 

This page is licensed under a Creative Commons Professional 3.0 License (with thanks to Creative Commons for encouraging remixes of their site).

So what’s CC-PRO?

CC-PRO is CC-ShareAlike, but rebranded. Our point is that it’s the best license for professionals (as well as for everyone else).

The Creative Commons licenses have done artists a great service: they’ve spread the message that freedom is a factor, and that different behaviors can arise if you allow your audience more freedoms.

But more and more, we’ve seen professional artists choose Creative Commons licenses that consign their works to a non-professional ghetto. We’re referring to the Creative Commons “Non-Commercial” family of licenses: licenses that essentially say “Do what you want with this, as long as you don’t make money from it.” While that might at first seem like it simply reserves to the artist the right to use the work professionally, it has the much larger effect of removing the work from most professional contexts entirely. Another way to put it is: if you allow other people to make money using your work, some of that money will find its way to you. Excluding your work from the world of professional activity (except as specifically approved by you) limits its life and limits your audience’s ability to help distribute it. The best license is the one that grants your audience and other artists the same freedoms you have.

Creative Commons has been careful not to recommend any one of their licenses over another for professional artists. The CC mantra has been “choice”, and that may have been a wise course so far, because it lets artists open up this new world at their own pace. But now we’d like to offer a direct answer to the question “Which license should I use?” CC-PRO: the license for professional artists, and the license that treats your audience and fellow artists with the same respect they give you.

(Thanks to Nina Paley for the idea and the remix.)

Do you know some great examples of copyright being used to censor?

If so, please share them by commenting here or by sending us email. We’re putting together a presentation about the equivalence between copyright and censorship, and need to have an overwhelming number of examples at hand — enough to make it clear that the ones we choose to highlight have been picked from an ocean of candidates. We need compelling examples because the most important ones are the hardest to show: when an artist unconsciously steers away from an idea because of rights issues, that is censorship, but it is internalized and thus invisible to the outside world. We need examples to help make clear the link between visible, externally-imposed censorship and the much more common self-imposed censorship that copyright law encourages.

A great starting point is the Electronic Frontier Foundations’s Takedown Hall of Shame, listing people and organizations who have used copyright law (especially the DMCA) to squash criticism.

But situations where copyright suppresses art itself are just as important, and are just as much censorship as political censorship is. Some examples:

• J.D. Salinger uses copyright to censor another author.

• The James Joyce Estate bans non-cooperating editions of Joyce’s works.

• How the play Blanche Survives Katrina in a FEMA Trailer Named Desire ran into a streetcar named censorship.

• The story of Sita Sings the Blues: how copyright almost prevented a popular and award-winning film from reaching audiences.

• The story of Eyes on the Prize: how copyright prevented an important film from reaching audiences for years.

• The same story yet again: copyright prevented the film Killer of Sheep from being released for 30 years.

• …help us dig up more…

The audience we’re aiming at is groups already concerned about freedom of expression who may not have considered copyright as a systemic form of censorship. For example, the American Library Association’s Intellectual Freedom Roundtable, the Index On Censorship, and the Authors Guild. Note that such groups are often comprised of writers and artists who came of age in the pre-Internet, copyright-controlled era, so it is especially important to have an overwhelming amount of data to show that there is a problem here.

The Free Expression Policy Project seems to already have copyright-based censorship on their radar screen; there’s probably some good stuff in the archives there. Also, if you’re an artist who has been affected by this kind of censorship, we definitely want to hear from you!

Perfect symmetry: J. D. Salinger complains that his book is censored, then J. D. Salinger turns around and censors someone else’s book.

He probably wouldn’t see it that way. He’d probably say he’s “protecting his property” or something like that. But in fact what he has done is ban a book — a sequel someone else wrote to Salinger’s book The Catcher in the Rye.

Salinger had other options. For example, if he doesn’t like this particular sequel, he could simply not endorse it. In fact, given the extraordinary powers current copyright law grants him, he could even insist that the sequel be marked as “unauthorized”, so that his name and reputation wouldn’t be associated with it. (Of course, in a world where people didn’t assume that a sequel must be authorized, even that step wouldn’t be necessary.)

But instead of choosing an option that respects the freedom of readers and of other authors, he’s suing to ban the new book. The usual pieties about freedom of speech (“the best antidote to bad speech is better speech”) somehow melt away and magically don’t apply for him, even though if he were asked, he would probably claim that he agrees with them. What is it about copyright, that it manages to sink so deeply into people’s worldview that they cannot see censorship when it’s right in front of their faces? When they’re the ones doing the censoring?

On the other hand, the author of this sequel, Fredrik Colting, gets it:

“I am pretty blown away by the judge’s decision. Call me an ignorant Swede, but the last thing I thought possible in the U.S. was that you banned books.”

His lawyer, Edward H. Rosenthal, raises the free speech issue too:

“…members of the public are deprived of the chance to read the book and decide for themselves whether it adds to their understanding of Salinger and his work.”

Though really, why should it even be necessary that the book add to anyone’s understanding of Salinger’s work? Maybe it does, maybe it doesn’t. Either way, it still shouldn’t be censored.

What can you do? Well, wear one of our ©ensorship shirts (women’s and men’s available in various sizes), and when someone asks you about it, tell them how copyright leads some authors to ban other authors’ books. The back of the shirt has our web site address and logo:

Wearing them really works, by the way. I wore one on a train recently and wound up having a great conversation about copyright with two people, one of them a musician coming back from a gig, after they asked me about the front.

We’re at the Open Video Conference in New York City right now, and it’s terrific: a gathering of creative people who are dedicated to building freedom into both the technical and the legal infrastructure of the Internet. Today I heard a great talk by Prof. Gabriella Coleman of New York University: The Politics and Poetics of DeCSS, on the connection between computer code and legal theories of free speech, and how the kind of Internet we get depends in part on how that connection fares in courts.

If you’re at the conference, come stop by the QuestionCopyright.org table the exhibit hall. We’ve got shirts, stickers, DVDs, and more. The stickers are free, and they fit on a laptop — there’s even one for netbooks.

Saturday we’re on a panel (I say “we” because either Nina Paley or I will be a panelist, depending on logistics) at 5pm entitled “Who Owns Popular Culture? Remix and Fair-Use in the Age of Corporate Mass Media”:

Our shared popular culture is driven by Hollywood movies, television shows, video games and the latest musical hits. Due to its ubiquitous nature, it is entrenched in our everyday lives, becoming part of the language we speak to each other and also shaping how we see the world around us. Since pop culture is largely created, distributed and owned by a few major media corporations, copyright laws restrict its public use. Given the tight control of these powerful institutions, how can remixers, artists, educators, youtubers and filmmakers find ways to speak using our shared pop cultural language? How does fair-use intersect with copyright regarding our artistic rights to create, criticize and build on the past? This panel will attempt to demystify fair use and re-imagine what a truly public popular media culture might look like.

I’m looking forward to it a lot; the other panelists have all been doing very interesting work:

• Elisa Kreisinger
• Francesca Coppa
• Jonathan McIntosh
• Neil Sieling

See the conference schedule for what else is happening Saturday.

Then on Sunday (the Hack Day), there’s a showing of Nina Paley’s film Sita Sings the Blues at 2pm in the Tishman auditorium at the conference venue, Vanderbilt Hall at New York University. Anyone can download the film, since it’s released under a totally free license, but it’s much better to see it on the big screen with a lot of other people. Come if you can; you’ll be glad you did.

(See also this article at PBS MediaShift about the Creator Endorsed Mark, and this example of the mark being used in commerce.)

The Creator-Endorsed Mark is a logo developed by Questioncopyright.org and first used in June 2009 that a distributor can use to indicate that a work is distributed in a way that its creator endorses — typically, by the distributor sharing some of the profits with the creator.  The mark is not an alternative to a free license; rather, it’s meant to be used in conjunction with free licensing.  You release your work under a free license, and then grant or withhold permission to use the CE Mark based on how distributors behave.

As more and more creators freely circulate their works on the Internet, the mark provides a reliable way for non-exclusive publishers to signal to their customers that they are supporting the artist.  The mark enables consumers to distinguish distributors based on how supportive of the artist they are, and to allow creators to encourage — not necessarily require, but encourage — particular methods of distribution for their freely-licensed work. Our experience is that given a choice, audiences will often prefer sources that support the artist, when they have a reliable way of recognizing such sources.

How it works:

A distributor may only use the mark with permission from the creator of the work, and creators may grant blanket permission to use particular versions of the mark to anyone who meets certain conditions. For example, the creator might say that anyone who shares any profits at all with them can use the generic “proceeds support” version of the mark:

Furthermore, a creator might grant permission to anyone who shares a certain percentage of their profits to use a “percentage” version of the mark, as long as it does not exceed the actual percentage shared. For example, a distributor sharing 25% of profits could use this mark:

Or an artist might grant permission to use a mark unrelated to revenue-sharing, because she endorses that distributor’s distribution for some other reason:

The default terms of the marks (see below) allow certain of these uses without prior permission, as long as reasonable conditions are met and the creator has not explicitly disallowed the use.

The marks come in “artist” and “author” versions:

…and in black-on-white versions:

You are encouraged, but not required, to link back back to this article when using the marks online: http://questioncopyright.org/creator_endorsed.

Enforcement:

If you are a creator and someone is using the marks on your work in a way you disapprove of, please send them a letter telling them to stop, and make sure QuestionCopyright.org gets a copy of that letter (email is fine). If the disallowed use persists, let us know; we will either cooperate with you in enforcing the mark or grant you the necessary legal agency to enforce it yourself.

Credit:

The Creator-Endorsed Mark design was done by Nina Paley.

Film-maker Nina Paley is close to having her award-winning feature film Sita Sings The Blues out of copyright jail and onto the Internet for free, decentralized distribution.

Our goal is to have the entire film available online by Saturday, March 7th.

We’ll need some “seed” sites to host it: Internet servers with the capacity to offer around 10 GB of data for public download (so we can make the film available at various resolutions). If you or your institution has the bandwidth and storage for that, please contact us. We’ll work out a way to get the data to you.

Why March 7th?

That night, Sita Sings The Blues will be broadcast on New York’s public television station WNET — Channel 13 (see here for details). Public television has a special exemption written into U.S. copyright law, such that they can show the film even when it’s still in copyright jail for everyone else. However, Nina Paley has made progress on finalizing contracts with the music composition copyright holders, and we believe we’ll be able to release the entire film by then. Since the New York showing will expose the film to a large new audience, when those people go to recommend it to all their friends, we want their friends to have an easy way to get it.

Note that free distribution really means free: you will be able to watch the film on your computer, make DVDs and distribute them, and hold public screenings (the film will circulate online in high-resolution formats appropriate for screenings). Your activities can be commercial or non-commercial, that’s up to you.

Our thanks to all who have donated so far to enable this experiment in decentralized distribution! But we can still use help: the rights clearance process — or rather, the “restrictions clearance” process — is not cheap. So if you’ve been considering donating to support Nina’s effort, here’s that link again.

Nina Paley came up with a great phrase about the music and movie industries the other day: “It’s like Night of the Living Dead Business Model“, she said.

Now comes her reaction to today’s New York Times article Digital Pirates Winning Battle With Major Hollywood Studios:

Knowing Nina, I’m sure she’s fine with it being reproduced here — and anywhere else on the Internet. Go for it, folks :-). (Use her large version of the poster if you want.)

I’ve written a letter to the Times in response to the article, pointing out how there’s no need to adopt the industry’s terminology (e.g., “stealing”) when discussing the issue, and mentioning how copyright primarily subsidizes (non-Internet) distribution rather than creation.

We’re holding a New York City area informational meeting on Monday. If you’d like to learn more about what we do and how you can get involved, please come!

We’ll focus on the Sita Distribution Project, and a couple of other exciting projects that are ready for more hands. Students, we’re open to offering credit if we can work it out with your school.

• When: Monday, 2 February 2009, 6:30pm-8:30pm

• Where: Software Freedom Law Center, 1995 Broadway, 17th floor (cross street is 68th; take [A,B,C,D,1] to 59th / Columbus Circle, or [1,2,3] to 72nd, or [1] to 66th; see map)

• What: Learn about current QuestionCopyright.org projects and how you can get involved. Refreshments will be served.

• Who: Nina Paley (artist in residence), Karl Fogel (editor), you and all your friends who want to do something about precambrian copyright restrictions.

If you know you’re coming, please let us know. It’s also okay to just show up at 6:30pm. If you’d like to come but that night doesn’t work for you, tell us — we’ll arrange to meet with you another time.

They can’t keep a lid on all of us…

copyright protection

See: copyright restriction

copyright restriction

A state-granted monopoly power used to prevent people from sharing copies of things they already have, and from making derivative works or remixes based on their copies. Sometimes called copyright protection.

rights owner

Someone with a government-granted monopoly on duplication of a particular work.

piracy

Making copies from a source you already have, without waiting for a third party’s permission. Also: forcibly boarding a ship on the high seas, threatening or taking hostage its crew, and stealing its cargo.

fair use

What all uses once were. Today, refers only to uses that do not interfere with monopoly-based business models.

file-sharing

See: music-sharing

music-sharing

Sharing music, as humans have done throughout history. Sometimes called file-sharing, when the music is shared via a computer network.

plagiarism

Claiming credit for someone else’s work. This is unrelated to copying and making derivative works.

intellectual property

A catch-all category that lumps together trademarks (a legal device for preventing identity confusion) with copyrights (monopoly on the distribution of culture) and patents (monopoly on the use of ideas). Since trademark law actually has much more to do with anti-fraud laws, it might be better to refer to that category as intellectual integrity law, to copyrights and patents as intellectual monopoly law, and avoid the term intellectual property altogether.

theft or stealing

The act of taking something in such a way that the original possessor loses it. Contrast with copying, in which a new thing is created that is similar to, or the same as, a thing that the original possessor continues to have afterwards.

censorship

Preventing people from sharing information. See also: copyright restriction

copyfraud

Making false claims of copyright ownership and/or false allegations of copyright infringement, whether malicious or accidental. Copyfraud often results from attempts to use automated systems to detect copyrighted material online. Such automated systems frequently misidentify content, or misunderstand the distribution rights associated with content; furthermore, some organizations will even manually file incorrect or occasionally deliberately fraudulent infringement claims of infringement. (Google’s copyright takedown request report, this EFF article, and this TorrentFreak article have more details about these phenomena). All of these causes can lead to copyfraud: a video or song or other material gets pulled offline, or someone receives a legal notice of infringement, and the burden is now on the artist or uploader to to prove that there was no infringement.

public domain

A special term used to describe the absence of statutory restrictions that chain copies of a given work to one party, who has (with certain limitations) control over the distribution and re-use of those copies. The public domain is sometimes talked about as though it were some kind of holding pen for works that have reached a certain age; we prefer to think of it as the normal home of all works except those which have been sentenced to a more restricted life under monopoly control. Before such monopoly restrictions became default, no term was needed to describe their absence.

“fall into” the public domain or “lapse into” the public domain

To be elevated to the public domain. This refers to the moment when default statutory monopoly restrictions expire for a given work.

free license

A “free license” is a copyright license that guarantees everyone permanent rights to use a work, to study and learn from it, to share it with anyone else, to display or perform it, and to distribute derivative works related to it, all without requiring permission first. (Note that these freedoms do not mean allowing people to take credit for work that’s not theirs: that’s just misattribution or fraud, and the best protection against it is to have legitimate, correctly labeled copies circulating widely.)

Two of the most widely used free licenses are the Creative Commons Attribution (CC-BY) and Attribution-ShareAlike (CC-BY-SA) licenses. Note that licenses that restrict commercial use, or that require permission for derivative works, are not free licenses.

The software field also has an unusually rich and varied set of free licenses, due to the long history of legal activism to promote sharing and freedom there; see the Free Software Foundation and Open Source Initiative web sites for more about those licenses.

For a more formal explanation of these freedoms, and why they are the test that we and others use, see Freedom Defined. That site also has a more complete list of freedom-respecting licenses.

Suggestions for further glossary terms welcome! Please contact us, or leave suggestions as comments. We’ll review and incorporate the best ones.