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This Friday and Saturday, I took part in a working group meeting of 30 open government advocates, organized by Carl Malamud and Tim O’Reilly, to develop a set of Open Government Data Principles.

One of the few bright spots in United States copyright law has always been that data produced by the government is, in theory, in the public domain. While there have of course been encroachments on this doctrine from time to time, it has generally been been held to in practice as well as in theory.

Unfortunately, being in the public domain isn’t necessarily the same as being online and accessible in reasonable formats via modern protocols. For example, Carl Malamud has spent a fair amount of effort prying the raw records of copyright registrations out of the U.S. Copyright Office at the Library of Congress and putting them online in a much more useful way than the government ever had. Similar stories abound among those with experience extracting electronic data from governments.

The purpose of the Open Government Data Principles is to clearly and precisely articulate what the standard should be for governments to make public data available — to promote a standard that government agencies can live up to, and that constituents can expect. These principles do that, but they’re just a start: now we have to actually meet them!

(The meeting’s sponsors were Sunlight Foundation, Google, and Yahoo, by the way; much thanks to them.)

The meeting was held at 832 Dolores Street, #4, San Francisco, CA, 94110, USA. The following were present:

• Jeff Ubois
• Bob Ostertag
• Shinjoung Yeo
• James Jacobs
• Lev Osherovich (guest)
• Karl Fogel

Upon motion duly made, seconded and carried, it was

RESOLVED, that the minutes of the previous board meeting be approved.

Upon motion duly made, seconded and carried, it was

RESOLVED, that Brewster Kahle is duly elected as a member of the Board of Directors to serve in accordance with the bylaws. The secretary, Karl Fogel, circulated a printed copy of this resolution, which was signed by all directors present; Karl will obtain Brewster Kahle’s signature as soon as possible.

The following topics were discussed:

Karl gave a progress report on the 501(c)3 application process and on obtaining office space in New York City. He also announced two upcoming conference presentations:

• Beyond Numbers: Gatekeeper Effects and Just-in-Time Publishing, at the O’Reilly Tools of Change conference in New York City on Feb. 11, 2008
• Creation Myths: Three Centuries of Open Source and Copyright, at ApacheCon Europe, Amsterdam, Apr. 7-11 2008

The following things were informally discussed:

• We should link from QCo to EFF database about whom RIAA/MPAA have sued.
• Karl to send Bob Ostertag materials related to the upcoming Tools of Change talk. Also, talk to Bob Stein (Institute for the Future) about ToC talk.
• Jeff said Ben Verbshow had an idea for annotating the Google book contracts; talk to him about that and about attending ToC.
• Daniel Erasmus in Amsterdam has many video interviews; ask Jeff for more information.
• Add to project’s page an item about the copyright cultural survey (that is, cultures that have a different take on what copyright is, c.f. Shinjoung’s and James’s experiences).
• Lev says: identify people whose heritage has been taken away by copyright (e.g., descendants of Sitting Bull who can’t reproduce famous photo, for example)
• As per above: add an “Absurdities Project” to the projects page.
• When ready, get names from Shinjoung and James about library speaking gigs.
• Lev says: get Facebook and Myspace pages! Email Lev to get list of Chicken John social networking sites. Once it’s set up, tell Cory D. about it, he may “friend” the pages.
• Install Drupal Module for Digg, Reddit, Del.ico.us, Magnolia, etc.
• Find a “shocking” video of RIAA victims. (Contact Peter Kaufman for videographers; J and S know Eric in NYC w/ circusamok, probably knows videographers too; Lev knows some through Chicken John.)
• Orphan Films Festival
• Bob says see BBC coverage of Oink bust
• David Rice in NY, an archivist Jeff knows who probably has lots of stories.
• Mozilla Foundation.
• Howard Besser at NYU (movie stuff). Everyone knew him, hmm.
• Identifying natural constituencies, first thoughts: librarians, documentary film makers, musicians, academics, educators, archivists.
• Speaking of librarians, get that fellow met at CC to write an article.
• Talk to Radiohead for Ghost Works Project?
• Project: examination of people who have done well by opening things up (e.g., Prelinger Archive)
• Interview Rick?
• Project: “New Models Clearinghouse”
• Web site: Lev points out that it is currently FUDdy. Make it snappier, concentrate on documenting the harms/externalities, documenting alternatives, more hard data, better slogans. (e.g., “The Internet Is For Copying”)

Thanks to Jeff Ubois for bringing this one to our attention…

Internet users in France who illegally download too many times will risk having their Internet connection taken away by court order. No, I’m not making this up: read about it in The Guardian, Tech Crunch, The New York Times, and the French Pirate Party‘s page (with English) about it.

The French Pirate Party (PPF), at the above link and elsewhere, is doing a good job of articulating what’s wrong with this — aside from the fact that the content providers don’t need their own taxpayer-funded private police force anyway, that is. As the PPF points out, the new measure will result in:

• “filtering of internet content” (they have to watch you to catch you)

• the “creation of an independent authority, parallel to justice, able to terminate internet access of users, and to punish any ISP that wouldn’t comply” …and if that sounds like hyperbole to you, remember how utterly compliant state police forces generally are when the Business Software Alliance or local equivalent requests a raid — the PPF is absolutely right to be worried.

• “creation of a national directory of such ‘terminated’ users.” I haven’t read the new law, but I assume the PPF has and is reporting accurately. So apparently, once you’ve been caught — gasp! — downloading some bits you didn’t pay for, it’s clearly important to make sure you never commit this heinous crime again.

(There’s more translation at Bruce Sterling’s blog.)

I haven’t read the details of the new law, and at least one commenter thinks there’s less to worry about here than it might at first appear. But these sorts of state-industry alliances haven’t done too well for citizens in the past. It is highly unlikely that nuances of “fair use” (or whatever the local equivalent is — French law is different in this regard) will be respected. Many of the commenters pointed out how this law could easily be used for political censorship. One gave the example of unauthorized videos of police actions: if the copyright holder for the footage is a news organization with an interest in maintaining good relations with the government, then citizens who redistribute the images might now be risking their Internet connection

The best interpretation here is that the government of France has completely bought into industry propaganda about how artists need copyright to survive. That’s already pretty disappointing, especially in a country where the government itself funds so much artistic activity, thus belying the very assumptions on which this new law is based.

Bob Ostertag is a musician and experimental audio artist based in San Francisco. He has been performing and recording since the 1970s. In October of 2007, I interviewed him about the release of his new album, w00t, a collage of computer game sound and image that began as the sound for Special Forces, a live cinema piece by Living Cinema (Pierre Hébert and Bob Ostertag). Bob is one of a growing number of musicians who have decided to release their music for free Internet download. Even within this group, Bob is unusually progressive — or as I prefer to think of it, ahead of the curve: he chose a Creative Commons Attribution 3.0 license, which allows not only downloading at no charge, but the freedom to make derivative works and to make commercial use of the music, for example as the sound for a live performance for which tickets are sold.

In October 2007, I conducted the following interview with Bob about the album’s release. (Note: between our previous article by him and now, Bob joined the board of directors of QuestionCopyright.org).

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Karl: First of all, what’s the name of the album?

Bob: “w00t” [spells it out]

Karl: So were you yourself a devotée of the video games whose sounds w00t draws on?

Bob: Did I play the games?

Karl: Yeah.

Bob: No, no… I’m reluctant to admit that…

Karl: [laughs] Too late, it’s all part of the public record, it’s the front page of the New York Times tomorrow: “Bob Ostertag: I Never Played The Game”.

Bob: Yeah, me and JT Leroy, it’s all a hoax! Uh, no. But I’m very interested in the gaming phenomenon. My partner in this, John Cooney, actually designs games, and if you go to his website you’ll see that he puts up free, online Flash games, for which he’s very well known.

Karl: Do you happen to know if that’s “free” as in “all uses allowed”?

Bob: Yeah, you just play them online, and they’re fantastic, he’s been listed in many places. They’ve actually gotten very popular. He’s actually a former student of mine, the one I mentioned in my earlier article at QuestionCopyright.org, the one who got the cease-and-desist letters from corporate lawyers.

Karl: So there are two sort of copyright-related things going on here. One is that you use a lot of other people’s material, and two is that you decided to make the result of that use available itself under an open license, regardless of the license of the original material.

Bob: Yes, well, I wouldn’t say that my decision to put this under an open license is related to the fact that I make use of others’ material, because I put all my work under that license, whether I use others’ material or not. So the fact that I use a license that allows people share and download and copy is sort of a separate issue. Obviously, though, the fact that I decided to use terms which are pretty minimal also creates ideal terms for allowing works like this one.

Karl: It certainly frees you at the outset from any charge of hypocrisy. I mean, anyone could take this album and starting using it in their own mix.

Bob: And I would say that computer games absolutely pervade our culture, I mean, we’re really living a computer game, we’re all doing this on a daily basis.

Karl: …yeah, some of them just happen to have real missiles attached…

Bob: Yes. And particularly gamers, you know, every gamer lives in a collage of computer games right now…

Karl: By that do you mean that they just have a large set of games, or that the games themselves are composed of references to games that came before?

Bob: By that I mean that I think their life experience right now and their experience of games are pretty close to a collage. A real gamer doesn’t play just one game, they’re involved pretty deeply, actually, in a variety of games. A lot of gamers put so many hours into gaming, that the visual and audio landscapes of the games become part of their lived experience. So that’s what I mean. I don’t mean that the games themselves are collages of elements from other games, but I mean that if you’re a gamer, if you’re an avid gamer, the way you experience the world of games is pretty close to a collage already.

Karl:Yeah, I mean, I don’t play a lot of the games myself, but I talk to a lot of people who spend a fair amount of time gaming either on their own home console or they’re sort of taking part in virtual reality worlds that are games but also they’re places that you live, that become your mental space. Is the album sort of an attempt to make that mental space external, to express it artistically, and make it apparent to other people who don’t play these games?

Bob: Sure, that’s a fair description.

Karl: Have you ever done music for a game yourself, like been hired by the game company?

Bob: I have, yes. A long time ago, a long time ago. I mean it was trivial; I didn’t actually write anything, I just did the sound effects.

Karl: Was it satisfying artistically, or was just completely like, you know…

Bob: Yeah, it was a day job.

Karl: “I was young, I needed the money”, that kind of thing?

Bob: Exactly. Well, I wasn’t so young, but I did need the money.

Karl: [laughs] Would you say that your conception of what the album is is the same as your collaborator’s, or is he sort living in a different universe?

Bob: Oh I think pretty much the same. But you should ask him!

Karl: I’d like to. Is his email address in the email you sent me?

Bob: Yes, or you can contact him through his website.

Karl: Maybe what I’ll do is I’ll just send him a transcript of this and then he can just add comments, and then we can just post that. [We’ll invite John Cooney to comment. -KF]

Bob: Sure.

Karl: I think this is the first release you’ve done that is under a completely free license…

Bob: Yes.

Karl: …the previous ones were Creative Commons licenses, and I think they allowed derivative works but they didn’t allow commercial redistribution, is that correct?

Bob: Correct, correct. Also, all those previous ones had a prior life, they were first published in the traditional way, and then later I put them online for free download.

Karl: Are you going to have a printed CD with your own booklet and stuff?

Bob: No.

Karl: Oh! Okay, so I just download it, burn a CD, print the liner notes, put it in my own jewel case.

Bob: Yup. Or you just download it and put it in your own iTunes, or wherever you put your music. And the file that you download, if you put it into iTunes, it’ll actually display the artwork in the way that iTunes displays cover art, the same as if it were released commercially.

Karl: What made you take the jump from… I mean, using the previous licenses is a little bit more than testing the waters, it’s actually going pretty far, but this is really diving in. In terms of changing the terms to be, basically, anyone can do whatever they want with it, as long as they credit you.

Bob: Really, for my own terms, I’d pretty much just put it in the public domain. Because in a sense I feel like using these Creative Commons licenses perpetuates the myth that somebody might actually be able to enforce the terms that they’d like, which is actually not true.

Karl: Hmmm, that’s an interesting statement…

Bob: If somebody uses it and doesn’t credit myself or John, I have no recourse. I’m not going to, uh, hire a lawyer, I mean that’s just a myth. So in a sense, if I had my druthers I’d just put it in the public domain. But on the other hand, I support of the efforts of the Creative Commons, I want to be part of that overall effort. So even though by using the creative commons license I’m technically claiming rights which I have no means to enforce, and couldn’t enforce if I wanted to, I still want to be part of that, I want to support them.

Karl: You know, one thing that occurs to me is that, if by some chance somebody did use the stuff and pretend it was theirs, and not credit you, even though you might not hire a lawyer, you could make public stink about it, and in that case having the Creative Commons attribution license on sort of helps your cause.

Bob: But I could do that anyway.

Karl: Yeah, you could do it even if it were in the public domain. It just becomes a little bit easier.

Bob: The point is to make a moral claim. Having the license on doesn’t show how it got there, it would just be a matter of principle. But I could show that I had this thing up on the web at a certain date, then that would show that people that we did it.

Karl: Yeah, I don’t think it would make a legal difference. So do you think you might move to public domain for later works, or do you want to sort of stick with giving Creative Commons a public nod like that?

Bob: Oh, I think I’m comfortable with Creative Commons attribution license.

Karl: Last week Radiohead released their new recording, In Rainbows, for free Internet release. Do you see yourself as working in the same direction?

Bob: Well, no. Which is not to criticize Radiohead. I support any move towards free culture, particularly in terms of the Internet. But there are important differences between what they are doing and what I am doing here.

w00t is not available on the Internet for a limited time only. It is a free release. And w00t is not a one-time experiment. I have put all my music up for free download. Radiohead has made clear that intention is not to give away its music, but rather to “prevent it from leaking out to the public haphazardly over several months before the official CD release.” And that release will be a box set priced at $80! Whether this ultimately plays out as a move towards freer culture or a convoluted marketing ploy will have to be seen.

QuestionCopyright.org doesn’t normally focus on economic issues, concentrating instead on the suppressive effects of today’s copyright regime on art and creativity. But sometimes a story is just too good to pass up… or in this case, the juxtaposition of two stories.

The first comes from Patrick Ross, executive director of the Copyright Alliance (a strongly pro-copyright group whose backers include the MPAA, NBC, News Corp, Disney, Time Warner, the Business Software Alliance, and Microsoft).

Ross wrote an editorial for news.com entitled “Fair use is not a consumer right”. His editorial was a response to Computer and Communications Industry Association (CCIA)’s recent complaint filed with the U.S. Federal Trade Commission (FTC), alleging that the copyright warnings shown before most movies and broadcasts are intimidating and inaccurate. Which they are, of course. In the words of the CCIA:

“These warnings intimidate average people and hinder free expression…They depict as illegal many legitimate and beneficial uses made possible by the high-tech industry, and cast a pall over the high-tech marketplace…These ubiquitous statements often include gross misrepresentations of federal law and characterize as unlawful acts that are explicitly permitted by law.”

Patrick Ross, not surprisingly, takes the position that the FTC shouldn’t “regulate free speech” — that is, that the FTC should not impose any limits on how misleading these notices can be. (One wonders if Ross objects to other laws or regulations that prevent false advertising and misleading statements, or if he only objects to them when they affect copyright holders.) Ross writes:

I don’t think we want copyright warnings to become a fair use public service announcement. No, these warnings do exactly what they’re meant to do — notify consumers in a succinct fashion that infringement has legal consequences.

This is odd, considering that a paragraph earlier he wrote:

So, how exactly would the FTC rewrite these copyright notices to reflect a consumer’s ability to attempt a fair use defense? Should they paste in all of the above language? We’re wading into the area of providing legal advice, and these examples aren’t sufficiently detailed for that. We could have an IP lawyer fold in a treatise on fair use, and baseball announcers could start reading it at the seventh-inning stretch to make sure they finish it before the end of the game.

Apparently, notifying consumers that infringement has legal consequences is not “wading into the area of providing legal advice”, but notifying them accurately of what might actually constitute infringment would be. We wouldn’t want to wade too far in, now, would we?

Meanwhile, the other story is the CCIA’s recent study, whose title is self-explanatory: Fair Use Economy Represents One-Sixth of U.S. GDP.

I haven’t closely examined the CCIA’s methodology, though they do claim the study was done in accordance with World Intellectual Property Organization methodological standards. Since any study on the uses of works of the mind is bound to be fraught with definitional questions, and since many other copyright-related studies start from bogus assumptions and/or questionable data, fairness (as well as intellectual honesty) demands that this this study be treated with the same suspicion. Nevertheless, the CCIA deserves praise for focusing attention on a useful point: that the creative re-use of existing works is an important activity, economically as well as artistically.

I only wish the CCIA hadn’t concluded their press release with the usual appeal to the sacred cow of balance: “The dependence of industries outside the high-tech field illustrates the crucial need for balanced copyright law.”. Of course, we all favor “balance”, but the question is, what is being balanced against what? For Patrick Ross and the Copyright Alliance, too often it’s that “the rights of creators” need to be balanced against (presumably) the right of the public to certain limited uses. But that’s not the kind of balance we should be looking for, as a society. The purpose of copyright is to benefit the public, period. If there is any balancing to be done, it is only as a means, not an end.