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Over the last couple of years, book piracy has gone from a furtive, limited activity to something approaching a political movement.

If you’re not familiar with what’s been going on in the world of online book sharing, or how it relates to the larger free culture movement, there are two recent interviews with Prof. Gabriella Coleman of New York University worth listening to:

• The Quest for a Free Culture
  (Radio Berkman 135, with interviewer Elizabeth Stark)

• Gabriella Coleman on digital book piracy
  (on the CBC radio show “Spark”, with interviewer Nora Young)

In the Radio Berkman interview, listen especially for the section starting at 4:40:

“Digital piracy online has produced a commons. I mean let’s talk about book piracy today. It is unbelievable, the amount of books being shared, combined with, in the case of aaaarg, discussion. There’s actually a community. But it’s illegal, full on, right? And so there’s definitely this legal commons and illegal commons, and I do think it’s important to recognize the … similarities and differences. In some ways, the pirate commons is valuable precisely because of its transgression, and its message that sometimes the law is overbearing, and legal solutions, even lauadable ones like Creative Commons, are not simply enough. And so from my … more activist perspective, I think a healthy ecology has both legal and illegal … modes of organizing, as opposed to playing a politics of the ‘authentic’ versus ‘inauthentic’ modes of sharing.”

The interviews are a clear-headed and provocative explanation of what’s happening with books now. She compares it to the earlier revolution in digital music sharing and to the free software movement, and discusses how people’s attitudes about this kind of sharing are changing, and why.

(I normally don’t use the word “piracy” to refer to sharing, but Prof. Coleman makes the point that, unlike “theft”, there is a tradition of “piracy” being used by both proponents and opponents of the activity.)

If you’re building a book scanner (such as a Decapod or BookLiberator), you might find this information useful:

Summary: after surveying 6.7 million books, 30cm seems to be the sweet spot — if your scanner can handle that, then you should be able to scan most books.

Raw data courtesy of the Internet Archive, which hosts book data supplied by the Library of Congress and the Open Library project. See LC’s “Books All” files (to 2006), and the Open Library’s JSON data dump (which includes information from libraries other than LC, from Amazon, etc). The LC data is in MARC format with the size in centimeters in field 300 $c. The OL data has size in the ‘physical_dimensions’ field, in centimeters except as otherwise specified (e.g., “11 x 9.4 x 0.7 inches”).

A new film festival is starting up in New York City, and it’s friendly to Free Culture:

“The Re/Mixed Media Festival celebrates remix as a legitimate, responsible form of visual art by bringing together filmmakers, video remixers and mashup artists to display their works publicly. The festival will be held in Brooklyn, NY in May of 2010… We are currently soliciting films that utilize remix/mashup techniques, and that are under 10 minutes in length. Additionally, your film should comply with the following guidelines:

1. Remix does not mean stealing someone else’s work and claiming it as your own, but using it to create a work that is substantially different from the appropriated work, even if it depends heavily on it.
2. The materials used in the remix should be either owned by the artist, granted permission from use from the creator, licensed under a creative commons license which allows such use, in the public domain, or fall within the parameters of the Fair Use doctrine of U.S. Copyright Law.
3. Attribution for works used will be given where required.
4. To be considered for the festival, submitted works must be freely redistributable, except as limited by source material restrictions.

(Emphasis added.)

It’s very encouraging to see point 4! That’s “freely” as in “freedom”, if my brief conversation about it with with Tom Tenney, one of the organizers of the festival, is any guide. It’s great that the festival is ensuring that the works they show be freely useable by others — remix artists, of all people, understand the importance of this. And as the Sita Distribution Project is showing, being pro-sharing can actually help the artists economically.

About point 2 the festival has no choice, of course. Current law gives grants monopolies on culture; we all have to work with that as best we can, until we can change the law.

Point 1 is interesting: it seems to imply a danger that a remixer might accidentally (or on purpose?) get credit for someone else’s work. Does that really happen often in practice? I would think not, but maybe the remix community has had some bad experiences…

This may be old news for art students, but for the rest of us it’s still kind of amazing to see cultural institutions like museums buying into the “copying is stealing” myth by prohibiting sketching.

In some cases, the copying restrictions are imposed by a lender — it would be interesting to know how often the lender imposes restrictions on works that are not under copyright, or that would not otherwise be restricted.

Nina Paley collected some examples after the jump. Know any others?

• Philadelphia Museum of Art: “All sketching in exhibition galleries or of works of art on loan is prohibited.”

  From the wording, that applies to any work on loan, whether in the public domain or not. Someone started a petition to get this restriction lifted, but it doesn’t seem to have succeeded.

• Royal Ontario Museum: “Sketching may be prohibited for some special exhibitions, due to contractual agreements with lending institutions or individuals.”

  It would be nice if they posted those agreements on the wall, next to the other information about the work. (And if lenders don’t want it posted, then maybe they should ask themselves why.)

• Morris Museum of Art: “Sketching artwork in the museum’s permanent galleries for educational purposes is allowed. Sketching or drawing from art within the Morris Museum of Art for the purpose of resale or reproduction is strictly prohibited. … Additional restrictions may be placed on sketching paintings and objects on loan from other museums. Please check with a visitor services representative before sketching in the galleries. You will be asked to sign a permission-to-sketch form and comply with the museum’s policies stated within it.”

  Where to start? Resale or reproduction is strictly prohibited? One wonders how the curators at the Morris Museum received their art education. Did they manage to personally visit every museum where a work of art they wanted to see was displayed? And a “permission-to-sketch” form — the word “Orwellian” is overused, but sometimes nothing else will do. Just be glad you’ve already signed your permission-to-think form.

• National Gallery of Victoria (Australia): Sketching and notetaking are permitted in Temporary Exhibitions and Permanent collection areas of the National Gallery of Victoria. This policy is subject to the discretion of individual or institutional lenders to temporary exhibitions provided the following conditions are met: … It is important to note that some individual or institutional lenders may forbid sketching and note taking as part of the conditions of loan set out in loan agreements and/or exhibition contracts or are not allowed under the terms of a government indemnity or insurance policy. In these instances, the Exhibitions Manager will issue separate instructions to security staff. We ask that all visitors to understand that in these circumstances the NGV has no option but to abide by the conditions determined by lenders.

  Of all the policies here, this one seems the most rational. The full text shows that they’re mainly concerned about crowding and logistics, and when it comes to restrictions by lenders, the gallery more or less openly admits that it regrets that restrictions are ever necessary. This policy apparently results in part from a protest by the free pencil movement — congratulations to them for a successful protest. Again, I hope the National Gallery will post the exact text of lender-requested restrictions right next to the covered works.

The copying-is-stealing mentality can create some awfully strange situations. This 2005 post at BoingBoing is about a sketcher (a second-grader) at the North Carolina Museum of Art: “A museum guard told Julia’s parents that sketching was prohibited because the great masterpieces are copyright protected, a concept that young Julia did not understand until her mother explained the term.” Don’t worry Julia, you’re not alone.

The Electronic Frontier Foundation has just unveiled their Takedown Hall of Shame, which highlights examples of copyright law being used to suppress political commentary and creative expression. Many of the examples involve abuses of the Digital Millenium Copyright Act (DMCA), whose takedown provisions encourage Internet hosting companies to remove content on the mere assertion of infringement by a copyright holder.

The EFF’s list focuses on corporate takedown notices, but it’s important to understand that it’s not only corporations that suppress speech via copyright law. The copyright monopoly system encourages people to do it to each other too; we’ve collected some examples of that.

So what’s the solution?

The real solution is radical reform of copyright law (there are plenty of alternatives). But even without that, there’s still an easy solution: fix the DMCA to have a penalty for delivering improper takedown notices. Say, a penalty of five years off the copyright term of the covered work, for each wrong notice sent about that work. Content monopolists would start being a lot more careful if they had something to lose when they get a takedown notice wrong.

How bad is the current copyright system? Should we push for abolition, or just radical reform?

Both. There are many people for whom abolition is too large a step, at least right now, but who see how broken things are and are willing to consider even drastic reforms. A reader recently pointed to a particularly good article entitled Some thoughts on a “Copyright Offensive”. As he wrote, “We need a set of proposals that we can push. They need to be such that they can make the situation better. They need to be such that we can reach a compromise on them that will still make things better.”

In that spirit, here’s a proposal, loosely adapted from the one in that article:

1. Restrictions do not come free; they require eventual registration. If a work is to be under restrictive copyright, then within two years after publication, it must be marked and registered with the copyright office. (Registration can be done electronically now, so this is no longer the burden it was when the United States ceased to require registration as part of the conditions for joining the Berne Convention.)

2. Once a work is registered, there is a yearly tax to maintain the copyright That is, charge a fee for the maintenance of monopoly privileges, just as in other industries.

3. The copyright tax is 1% of the value of the covered work, as declared by the copyright holder. The holder is motivated to declare an honest value by having to agree to liberate the work (make it public domain or sharealike) on payment by anyone of the full declared value. The holder may adjust the declared value up or down upon reregistration each year; the fee is recalculated accordingly. See Balanced Buyout for details.

4. Copyright lasts for 10 years, then the work converts to sharealike or the public domain, at the holder’s discretion. If the holder does not declare a preference, the default is sharealike.

5. Sharealike terms do not expire.

6. Separate laws to protect attribution, independently of copyright. Attribution laws would apply equally to copyrighted, sharealike, and public domain works, since authorship is independent of copyright status.

Comments welcome.

UPDATE: slides from the presentation are now available: problem-of-open-media.pdf or problem-of-open-media.odp (OpenDocument Presentation format).

Any copyright reformers in St. Louis? I’ll be attending the annual conference of the Association of Moving Image Archivists (AMIA) in St. Louis from Nov. 5th-7th, as will QuestionCopyright.org board members Jeff Ubois and Brewster Kahle.

On Saturday, Nov. 7th, from 10:45-11:45am, I’ll be on a panel entitled The Problem of Open Media, organized by Jack Brighton of Illinois Public Media, with Rick Prelinger (Prelinger Library & Archives), Suzanne M. Fischer (the Henry Ford), and Peter Kaufman (Intelligent Television).

It might be clarifying to call the panel “The Problem of Closed Media” or “The Problem of Monopolized Content”… but then, perhaps that’s exactly the sort of discussion to save for the panel! It should be a good session. Here’s the description:

The term ‘Open Media’ has gained currency with the explosion of online archives. Some media collections are open for people to download, share, mashup, and reuse. Others seek to prevent their works from being copied. To the extent that there is an “open media community,” it envisions a large and active public media commons, providing global access to historical, cultural, and other materials relevant, and in many cases vital, to the public interest. Meanwhile, copyright and intellectual property laws add layers of confusion and conflicting interests, while new technologies make controlling and monetizing media problematic for all concerned. How might we solve the problem of open media? This session will address some of the obstacles and opportunities, and suggest new business models that allow content to breathe freely while still paying the rent. We’ll also discuss the role of the archivist as key to an open media future.

Many thanks to Jack Brighton for putting it together.

Copyright has made it increasingly difficult to do what archivists do, as Jeff Ubois knows firsthand from his experiences in television archiving. I’m looking forward to gathering hearing some more stories at the conference, from those on the front lines.

–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.