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by 21 comments on "“Piracy Is Not Theft” graphic by Patri Friedman"

Piracy Is Not Theft

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

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

Friedman’s response is terrific:

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

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

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

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

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

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

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

by 0 comments on "August Break."

The Beach

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

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

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

-Karl Fogel

by 13 comments on "Help Wanted — We’re Launching the Ghost Works Survey"

Ghost Works Survey temporary logo

We’re launching the Ghost Works Survey, and you can help.

The Ghost Works Survey is a project to investigate how often, and in what ways, copyright prevents artists from making new derivative works.

In the article “Seen Any Ghost Works Lately?”, we defined a ghost work as a creative work that never got made, or was made but not released, because copyright concerns prevented it from being started or from being distributed. Since then, informal conversations with artists, publishers and others have made it very clear that such suppression is a common event, much more common than most people think. But the public rarely hears about it, because no one does publicity for a work that doesn’t exist.

The purpose of the Ghost Works Survey is twofold: to demonstrate the scope and scale of this phenomenon by gathering and organizing as much data about it as we can, and to highlight compelling individual stories of artists and other creators who had their work thwarted by copyright restrictions. The survey will not attempt to catalogue every ghost work — there are likely far too many, given that almost every artist we’ve talked to so far has a story of a work they had to alter or lay aside due to copyright concerns. Rather, we’ll focus on qualitative results: we want to collect enough stories to discern large-scale patterns, so we can understand and publicize the effects of copyright suppression. For more information, see the projects page.

If you want to help, or are interested but want to know more before committing, please send an email to:

The time commitment will only be as great as you want it to be — we’ll need help with tasks both large and small. Since much of the project involves receiving and processing stories from artists, our capacity is directly proportional to the number of volunteers: the more people are involved, the more we can do! QuestionCopyright.org can provide technical infrastructure and planning, but there is no substitute for human minds.

We’ll also need some volunteers willing to take on specific responsibilities: for example, a maintainer for a MySpace page and a maintainer for a Facebook page (because we need to make it as easy as possible for people to send us stories).

And we welcome ideas, of course — please leave suggestions as comments on this article.

by 2 comments on "Talking on Copyright at ApacheCon EU in Amsterdam, April 9th."

ApacheCon EU 2008 logo

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

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

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

by 15 comments on "Control At Any Cost: Copyright vs Christian Rock"

C. Michael Pilato playing the guitar

Reader C. Michael Pilato sent us this story…

I’ve known about the terms “copyright” and “trademark” for as long as I’ve been able to read cereal boxes at the breakfast table. But I didn’t became aware of copyright and the surrounding issues until I was in college. Sadly, our introduction wasn’t all handshakes and smiles.

I play the guitar. I started teaching myself how to do this in high school, when my primary taste in music was so-called Christian rock. I carried my interest in the guitar with me into college at the University of North Carolina at Charlotte, where I developed a second love affair – with the Internet.

At some point early in my college days, someone introduced me to OLGA, the Online Guitar Archive. OLGA had the straightforward goal of providing a single location where guitarists of all shapes and sizes could download and contribute plaintext files that described how to play particular pieces of classical or popular music on the guitar. I gathered while traipsing around through newsgroups and such that OLGA was pretty popular with amateur guitarists like myself. There was only one small problem with OLGA from my perspective – it didn’t have much music from the bands I listened to. So, I decided to dedicate a portion of the web-accessible disk space allotted to me by UNCC to host a site like OLGA, but dedicated to contemporary Christian music (CCM). And with just a handful of transcriptions I’d done myself (and also submitted to OLGA for inclusion there), and some severely lacking website design skills, I began the CCM Guitar Music Archives.

I advertised the CCMGMA on the rec.music.christian newsgroup, routinely asking for contributions, and trying to cover myself legally by asking would-be contributors to “respect all laws regarding copyright, patent, The Club(tm), and other such neat-0 anti-theft devices”. Of course, if you’ve read anything at all here at QuestionCopyright.org, you should be able to spot quickly that I knew about copyright’s true purpose exactly what most of America knows about it, which is to say I knew practically nothing. But contributions started to flow in, and the site’s popularity started to grow. I recall a day when, flipping through an Internet-focused book in a Christian bookstore, I arrived at an appendix in the back listing top-tens of various categories of websites. There I discovered that my little uncc.edu-hosted website (complete with the tell-tale tilde in the URL) was considered one of the top ten music-related resources for Christians on the World Wide Web. UNCC eventually even had to ask me to move the site to my home ISP’s servers because they felt it was generating too much traffic on their network.

In February of 1996, I tried to visit OLGA’s website, but was greeted with a message about some legal issue they were having with a major publishing company. Knowing that any legal issue they were having was likely one I could wind up having, too, I temporarily brought the CCMGMA offline. I continued to watch OLGA for clues about the waters clearing, and eventually brought my site back up. I tightened up my submission policies to explicitly disallow renditions of songs for which you could purchase guitar sheet music from a music store. Again, my whole understanding of copyright was basically that it existed to protect artist’s profits. In my mind, no profiting artists meant no music to listen to, so I did not in any way want to contribute to that scenario. I had to deny a few contributions under this new policy, but my conscience was clear.

And then it happened. A representative of a Christian music publishing company contacted me via email and indicated that I needed to immediately remove all the works on my site that were associated with artists contracted to them. I don’t recall now if I tried to get a good explanation of why from the representative. I do recall the bewilderment I felt as I wrestled with the fact that it was a Christian publishing house that was forcing my hand. (I’ve learned much since then about the peculiarities of the word “Christian” when used as an adjective.) But none of this mattered. What mattered was that I was a college kid with no sizable income, and I had this vision looping in my head of my parents wringing their hands and asking of me through columns of steels bars, “Mike, what have you done?!” I took the CCM Guitar Music Archives offline, eventually handing the whole collection of nearly 300 contributions to someone else who wanted to try to keep the idea alive. And just like that, three years of making what I felt was a small but positive impact on one segment of the world were finished.

To this day, I still wonder if even a single penny of publisher profit was negatively affected by my site or OLGA or any number of similar collections of user-contributed guesswork. Never did I hear from my contributors that, thanks to my site, they no longer needed to buy CDs or cassettes. In fact, I suspect these sites existed at all because of folks listening to purchased music over and over and over again while trying to discern amidst a wash of drum fills and screaming vocals what their favorite guitarist might have been playing in a given song. Besides, doesn’t the Good Book tell us that “the love of money is the root of all kinds of evil”?

by 13 comments on "Presenting at O’Reilly’s Tools of Change for Publishing Conference"

Portait of Karl Fogel

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

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

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

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

by 7 comments on "Cease and Desist Censorship"

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

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

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

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

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

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

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

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

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

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

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

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

by 7 comments on "Musicians Censoring Themselves"

Ben Collins-Sussman playing the banjo by the water.

Reader Ben Collins-Sussman sent us this letter after watching a group of hobbyist banjo players in an Internet forum shy away from sharing music because they were worried about copyright issues. It’s hard to add to Ben’s eloquent outrage, but we should step back and ask: how did we get here? When did the inconceivable become everyday? When did musicians start censoring themselves as a matter of course? (Notice how copyright issues actually come up twice, independently, in the forum Ben points to. That’s two times in a discussion that’s only nineteen posts long. It would be nice if this were somehow exceptional… but sadly, it’s not.)

Here’s Ben’s letter:

I frequent exciting websites like www.banjohangout.org, where banjoists from all over the world (all 12 of us!) talk about banjos, songs we like, how to play things, and so on.

This forum thread is depressing:

http://www.banjohangout.org/forum/topic.asp?TOPIC_ID=82498

People are talking about how much they like this recording of a new piece of banjo music by Steve Martin (yes, it’s the same Steve Martin!), and saying how happy they are that Steve tabbed it out into a monthly banjo magazine. At some point, somebody asks if anyone has the tab written out for the banjo ‘accompaniment’ played against Steve’s banjo in the recording (by the famous Bela Fleck). Somebody else responds that Bela Fleck’s teacher, Tony Trischka, taught him (in person) how to play the accompaniment, but is afraid to write it down on paper and share it with others, because of possible “copyright issues.”

For centuries, musicians have been teaching and learning from each other, imitating and improvising together… and now we have some hobbyists who are afraid to show each other how one particular person happened to improvise some accompaniment on one particular recording? Yeesh.

by 5 comments on "Swedish Pirate Party’s Influence Beginning to Show…"

Swedish Pirate Party Flag

Seven members of the Swedish Parliament have published an opinion piece calling for the decriminalization of filesharing. Written in reaction to a government analyst’s recommendation that file-sharers be punished by losing their Internet connections, the letter is practically a verbatim recitation of what the Swedish Pirate Party has been saying for a long time now:

“…Decriminalizing all non-commercial file sharing and forcing the market to adapt is not just the best solution. It’s the only solution, unless we want an ever more extensive control of what citizens do on the Internet. Politicians who play for the antipiracy team should be aware that they have allied themselves with a special interest that is never satisfied and that will always demand that we take additional steps toward the ultimate control state…”

When he visited the United States last summer, Rick Falkvinge, the Pirate Party’s founder, pointed out that one of the Party’s most important functions was educating other politicians. By competing for seats in Parliament, the Party forces other candidates to give more attention to copyright and patent issues, out of fear of losing votes to the Pirates. It looks like that’s exactly what’s happened here. If so, kudos to Rick and the Pirate Party: they’ve made a powerful argument for valuing civil liberties over obsolete business models, and it’s clearly catching on when members of Parliament from the Moderate Party adopt a major plank from the Pirate Party platform.

[Update: Over at the P2P Consortium, there’s a good new interview with Rick Falkvinge up. Shameless confession: we’re very pleased to see the references there to Falkvinge’s speaking tour here last summer, which QuestionCopyright.org arranged.]

by 0 comments on "Help Keep Bibliographic Data License-Free"

Picture of the U.S. Library of Congress

The Working Group on the Future of Bibliographic Information at the Library of Congress has just released its final Draft Report. There’s much that’s good in it, but it’s lacking an important feature: an insistence that bibliographic data be license-free, as per point 8 of the Open Government Data Principles. (See also Jonathan Gray’s post about this, and the Open Knowledge Foundation petition.)

This may just be an oversight on the working group’s part, or it may reflect some deeper hesitancy about committing fully to the public domain. They’ve asked for comments on the draft, though, and it would be great if they heard from a lot of people about this. You can send them comments here:

Here’s what I sent them…

Unless I’m mistaken, the Draft Report doesn’t explicitly say that bibliographic data released by the Library, or by any government agency for that matter, should be license-free and in the public domain. This has nothing to do with the works that are referenced by the bibliographic data, of course, since they may be under a variety of licenses. But the bibliographic data itself should be free for all to use.

The Open Government Data Principles may be worth taking a look at. It’s a short and very comprehensible document; see especially Principle 8 (“license free”).

Thank you,
-Karl Fogel
Editor, QuestionCopyright.org