Tupi logo.

QuestionCopyright.org has pledged $500.00 to the Tupi 2D Animation Software Kickstarter campaign, and we’re posting this to help spread the word.

Please join us and the other project backers, with whatever amount you can pledge!  Remember, your pledge is only called in if Tupi reaches their $30,000 goal by September 26th.

Tupi is already runnable code.  They’re on version 0.2 right now, and their goal in this campaign is to reach their 1.0 feature set, including installers for Macintosh and Windows.  (It’s already packaged for Debian and Ubuntu GNU/Linux; I’ve installed it.)

Our Artist-in-Residence Nina Paley (who also backed Tupi’s campaign personally) explained very well why projects like Tupi are important, in her post “It’s 2013.  Do you know where my Free vector animation software is?”.  When you’re an artist, you’re dependent on your tools — and that means when someone has a monopoly over your tools, they can play havoc with your art and your livelihood.  That’s exactly what happened with Adobe’s Macromedia Flash 8.  Read Nina’s post for the details, but basically Adobe decided to remove features from their Flash authoring software, in order to sell those features separately in other programs.  As Nina points out, the problem with this isn’t just the extra expense, it’s the increase in workload and production time.  And the looming threat that they might do it again in the next version.  They can yank the rug out from under their users at any time, and there’s nothing the users can do about it, except refuse to upgrade (which becomes less and less feasible as time goes on, of course).

Free, open source programs can’t do this to their users, because no one has a monopoly over the software.  If one group puts out a version of the software that is missing important features, users will shrug and start using a competing fork that treats them better.  It also means that if enough artists need a particular bugfix or improvement in the software, they have a path to make it happen — they don’t have to be programmers, as long as they can band together and hire programmers.  Users are not vulnerable to arbitrary decisions handed down from management, they way they are with proprietary software.  (Of course, the more likely scenario is that artists would band together and just pay Tupi’s original development team to make the necessary changes.  The fact that the users have the option to go elsewhere is precisely what makes the original authors likely to be responsive to true demand — a free-market ideal that proprietary software is structurally biased against attaining.)

Tupi has another thing going for it: Nina, an extremely experienced animator who knows the major competing proprietary tool very well, has publicly volunteered to test and provide feedback to open source animation projects, including Tupi.  (Nina says “Tupi’s strength is its simplicity; it’s great for kids and anyone new to animation. It doesn’t yet have the power I need to produce feature films, but its development is a good thing for all of us. …”)

So please help spread the word about Tupi’s Kickstarter campaign! (Here are links to retweet or redent our posts about it.)  You can read more about Tupi here, and this is their campaign video:

After an additional year of production work, our free-film project “Lunatics!” is back up on Kickstarter. We have a lot more done – some “finished” animation, voice acting and soundtrack mixing, a lot more completed 3D models, including some of the toughest mech modeling, and several characters. We are still 100% free-culture, using CC By-SA license for everything we release, and we’re still open-source, making our models and other elements available to the commons. We use only music with By-SA compatible licenses, and we are working entirely with free-software, especially Blender, Kdenlive, and Audacity.

The Kickstarter video starts with our recently completed “teaser” demo video, which is meant to show at least one possible rendering and final animation style for the project (though we’re still experimenting). This version is toon-shaded, but lacks outlining — I’m actually pretty happy with the way that looks. The limited PoV/hyperreal concept for this trailer was originally conceived to minimize the number of 3D assets we’d use (originally it was all PoV and didn’t show even show the character). However, as the video goes on to show, we actually have quite a few other models, including the Soyuz exterior completed now.

As I outlined in my update on licensing and business models, “Lunatics!” is entirely under the same free CC By-SA 3.0 as Wikipedia and other bastions of free culture. Unlike several other “free” film projects, we’ve actually decided to be strict about the music licensing as well — every piece of music we use is under a By-SA compatible license so that we can release it to you under By-SA.

An important part of our business model — creator-endorsed post-release sales — is a concept born right here on QuestionCopyright.org.

We’re also part of a growing group of projects relying on and promoting free-software tools like Blender, Kdenlive, Audacity, Inkscape, and Gimp to realize our concept.

Bob Ostertag at work.

This piece by Bob Ostertag was originally published at On The Commons. We’re reprinting it here because it’s a great description of exactly how distribution networks are still strongly weighted against free-as-in-freedom. The cost of maintaining the monopoly sidewalk is that freedom can grow only in the cracks — and the increasingly eager auto-detection bots keep “repairing” the cracks, because their masters only see the value of the sidewalk. Bob is an active performing and recording musician, and a long-time friend of QuestionCopyright.org (he was one of our founding Board members). His biography is at the end of this article.

We of course hope Bob makes plenty of money from A Book of Hours on CD Baby — there’s no contradiction between freedom-friendly licensing and making money! And yes, we recognize the contradiction between his original Creative Commons Attribution-NonCommercial licensing and the freedom of other artists to pursue the same strategy Bob describes below while incorporating his music in their works. In the usual QCO so-transparent-it’s-kind-of-edgy fashion, we’ll discuss this with Bob and see if he’s open to using truly free licensing while still selling his music on CDBaby and similar sites [Update 2013-08: He was, and we’re now working with him to relicense his music under free licenses wherever possible.]. But the outcome of that conversation doesn’t affect his message below, which is that right now freedom is much harder work than it needs to be, because the major distribution networks still regard it as a weed, and because the few distributors that prioritize a direct audience-artist financial connection are small and don’t have the clout — yet — to change how the sidewalks are maintained.

Update from Bob Ostertag

[This update also comes from the On The Commons article. —QCO Editors] Bob Ostertag’s article (below) about how the music industry makes it increasingly difficult for musicians to share their work online for free got a massive response on On The Commons. Ostertag shares some of the reactions here.

My article seems to have fostered a lots of discussion on OTC, on FaceBook, and around the web. Many shared their own experiences with unjustified “take-downs” of their music off the Web. For example, this form Eva Orgidea:

“Last week Youtube added a copyright notice in one of my videos (a mere sound performance I did in a gallery) saying part of the content was owned by Harry Fox agency. I felt so offended, that I disputed the claim and simultaneously deleted the video. I do not want, in any shape or form, to get involved into those huge corporate names… Nevertheless although I removed the video I am aware that if they do not find my dispute legitimate, they will terminate my Youtube account.”

Others wrote in defense of the people at SoundCloud, which they argue are doing their best given the circumstances, and that their dispute resolution system is actually fast and fairly simple. But beyond discussion of which music and video hosting sites are “good guys” or “bad guys,” the bigger point is that there is a strong incentive for “false positives” built into the whole netbot-auto-take-down system. The software that SoundCloud, YouTube, and others across the web began as a service used by the big labels to analyze music content directly at CD pressing plants to prevent unauthorized mass duplication, That system is now applied to everyone. It is strongly in the interest of the big corporate labels to over-detect rather than under-detect. The result is a system in which the interest of the handful of superstars of the world in not missing out on a penny of their millions in royalties trumps the interest of the vast majority of musicians in getting their music heard.

On YouTube, artists the netbots have identified as violating copyright may now be offered a choice of taking down their video or allowing the alleged copyright holder to advertise on the page. The incentive for false positives here is even stronger, since the more false-positive takedown notices get sent, the more free advertising is muscled from people they have no relationship to: legal, artistic, or otherwise.

Finally, there is one clarification in order concerning my account of the YouTube takedown of Jacques Sirot’s video, which we ultimately traced to netbots operating on behalf of the Seeland label associated with the group Negativland. My intention was to use that story to illustrate how easy it is for copyright-policing-by-netbot to get out of hand, not to question the integrity of Seeland or Negativland. I consider Negativland to be innovative artists, trustworthy collaborators, upstanding individuals, and personal friends. When we finally figured out what had happened, the Negativland people were as horrified as I was and acted immediately to resolve the situation.

Why I No Longer Give Away My Music

How the digital music biz makes it difficult for musicians to offer free downloads

In 2006 I gave my music away. That music had previously existed on CDs and LPs (yes, I began making music in the days of vinyl and tape). I moved all of it to the Web, downloadable for free.

Today, seven years later, I see that giving away music for free is not as easy as I had imagined. In some ways, it turns out to be impossible. The reasons why this is so say a lot about creativity,property, and power in a networked world of corporately owned digital commons policed by netbots and stochastic algorithms.

My music is now available under a Creative Commons “Attribution-Non Commercial 2.5 License,” which allows anyone to download it, copy it, remix it, slice and dice it, and so on. They just can’t sell it, or profit from it. If they incorporate it into music of their own, they should note that they did so, and since they used my music as their source material for free, they should not charge for their music either.

But that’s all just words. In the real world, I have no resources with which to enforce those conditions. And as we shall see, the problems I have encountered in this endeavor have been entirely in another direction.

Deciding to do this was the easy part, since the “record business” never worked for me in the first place. This was no big surprise, as the record business never worked for most musicians. What is surprising is how many musicians seem either to not know this or to have forgotten it.

The whole structure of the industry put corporate interests first, musician interests a distant second. Actually, this is not quite true. The biggest stars get taken care of pretty well. Lady Gaga should have no complaints. But many people would be shocked to know how many bands whose names they know and CDs they bought never saw any money from those sales. For musicians like myself making “non-commercial” music which does not fit easily any any genre or marketable category, the situation was hopeless from the start.

My income comes from concerts, not recordings (I have performed internationally since 1978). For most of my audience, before the Internet came along just finding my recordings was a major undertaking. Concerts in various parts of the world were often attended by people who travelled long distances to get to the show, hoping to find some recording for sale which they had heard about but were never able to find.

Enter the Internet. Suddenly, world-wide “distribution” of audio recordings – which had formerly required an infrastructure of pressing plants, trucks, ships, planes, warehouses, retail shops, accountants, lawyers, and more – became instantly available to everyone at the push of a button.

Who needs the “record business”? What was a difficult, tentative, and ultimately impossible decision for big name groups like Radiohead was a no-brainer for me. I wrote an essay called The Professional Suicide of a Recording Musician that was widely read and commented upon. I was invited on to the board of a non-profit called Question Copyright, which is all about trying to create a real digital commons.

The first thing that happened after ‘freeing’ my music was that people began to access it in far greater numbers than previously possible. My first release to bypass the CD stage and go directly to the Internet for free download, w00t, was downloaded about 40,000 times. And the total downloads of all my recordings has gone well over 100,000. (Since numerous sites now offer my music for downloading I do not have an accurate total).

But I have learned that “accessing” music and actually listening to it are two different things. Free downloading has created a kind of collector or hoarder who is unique to the digital age. In my university classes, I query my students about their downloading habits, and everyone who is deeply into music has figured out how to download music for free, despite the best efforts of the record business to stop them, and have far, far more music downloaded to their laptops and iPods than they will ever have time to listen to in their entire lives. Gigabytes and gigabytes of meaningless data. These same students invariably report that they have actually listened to all the music they paid for.

If a virtual tree falls in a virtual forest and no one opens the file, does it still make a sound? This is a real conundrum. If by “commons” we mean, say, communally owned pastures in England, we are talking about finite resources that were valued as such and cared for accordingly by the surrounding community. But if by “commons” we mean a vast expanse of server farms that seems capable of expanding without meaningful limit, then we are speaking of something very different. Have I cheapened my music by not monetizing its recorded artifact?

For most people for whom new music is an important part of their lives, however, the most relevant commons has become iTunes, Spotify, Pandora and so on – Web sites that allow the user to begin from their favorite music and then link outwards to music that has been somehow identified as similar. College kids and fanatical collectors might work late into the night figuring out how to get their files for free, but for most people, the sites listed above are the main way they discover new music. And these sites do not accept music that is free. They are all about making money. By giving away my music for free, I seem to have shut myself out of the new “commons”.

The Mysterious Case of the Missing Copyright

Jacques Sirot is an independent French artist and film-maker. He used my music as the soundtrack for one of his recent films, as I have made clear he (and everyone else) is free to do. Making sure to dot every i and cross every t, when he posted his film on YouTube he noted: This Creative Commons film uses Bob Ostertag’s music, Say No More, which is distributed with a Creative Commons license; its usage has moreover been personally agreed by the musician.

Yet soon after the film was posted, it was blocked for copyright violation, with a notice that “it may have content that is owned or licensed by IODA [Independent Online Distribution Alliance].” Jacques appealed:

“This video contains elements protected by rights of the author in question, but with the appropriate license or written authorization of the holder of those rights. Bob Ostertag was notified of this use of his music (which he distributes via “Creative Commons”) and granted his authorization. I believe in good faith that the claims described above are not valid, and that I hold the necessary rights to the contents of my video, for reasons cited. I have not knowingly made a false declaration and am not voluntarily using this contestation procedure in an abusive manner to undermine third party rights. I understand that the forwarding of fraudulent contestations can lead to the closure of my YouTube account.”

He received the following reply:

Dear Jacques Sirot,

IODA has reviewed your dispute and reinstated its copyright claim on your video, “TSUNAMI”. For more information, please visit your Copyright Notice page.

Yours sincerely,
The YouTube Team

Working with scholar Sally-Jane Norman, Jaques spent considerable time researching the matter, and eventually contacted me, and I spent hours more looking into it. Finally I figured out what had happened.

Years back, I released some CDs on Seeland, a label run by the notorious media guerrilla group Negativland. Negativland was famously sued for a parody of a song by U2, which made them into icons of free expression and resistance to absurd claims about the reach of copyright. I had left their label years ago when I put my music under the free Creative Commons license. As is often the case with tiny, underfunded labels, there had been a disagreement about accounting, with the Negativland people arguing I owed them money for unsold CDs that were returned by stores. Just the sort of thing that led me to give up on small labels and give away my music. Well, it turned out that, without informing me, Seeland had continued to collect royalties on that music in an effort to recoup what they claimed to be their losses. Through a byzantine circuit of contracts and enforcements, the banishment of Jacques Sirot’s video from YouTube for copyright violation, for using my music which I had given him and everyone else explicit permission to use, was the result of a secret account collecting royalties on my music operated by a label that had built its reputation on resistance to overblown copyright claims!

Kanye West vs. Etienne Noreau-Hebert

There are some Web sites, like YouTube, SoundCloud and BandCamp, which are set up to allow free music and video sharing. But even these are problematic. They are policed by “netbots,” software algorithms that constantly search for sounds allegedly owned by someone or other. My friend Etienne Noreau-Hebert recently uploaded a new work to SoundCloud, to share with others for free, and received back the following reply:

Our automatic content protection system has detected that your sound “121223-Muhamarra-v0.3” may contain the following copyright content: “Love Lockdown (as made famous by Kanye West)” by Future Hit Makers Of America, owned by Big Eye Music. As a result, its publication on your profile has been blocked.

Kanye West, of course, is a major figure in the world of corporate hip hop, with megahit records, movies, a fashion line, and more than 30 million paid digital downloads of his songs. Etienne is an unknown musician making abstract electronic music he would like to share with others for free. There is nothing in his music that sounds even remotely like Kanye West. But some netbot has judged that Etienne has infringed on Kanye’s rights, and so Etienne’s composition is banned from SoundCloud. Perhaps there is someone at SoundCloud to whom Etienne could appeal, if he dug through their web site, sent the emails, waited through various levels of phone robots, etc. Perhaps not. But Etienne is giving away his music for free. Where is he going to get all that time? Or rather, he is trying unsuccessfully to give away his music for free.

Little guys like Etienne are not the only victims of netbot police. The YouTube live stream of Michelle Obama’s speech during the last Democratic Convention was suddenly shut down midsentence by YouTube’s “preemptive content filters,” leaving viewers staring at a black screen with text informing them that: This video contains content from WMG, SME, Associated Press (AP), UMG, Dow Jones, New York Times Digital, The Harry Fox Agency, Inc. (HFA), Warner Chappel, UMPG Publishing and EMI Music Publishing, one or more of whom have blocked it in your country on copyright grounds.

If you want to know who rules the roost on the Internet, that list would be a good place to start. A live webcast of the Hugo Awards for science fiction writers was blocked when a netbot ruled that the stream was showing copyrighted film clips. This was true, but the Hugo Awards had secured permission to use them. No one told the netbots. YouTube’s “preemptive content filters” repeatedly blocked footage from NASA’s Curiosity rover Mars landing, even though the images are in the public domain.

Music for Almost Free

My newest work is A Book of Hours, featuring the extraordinary vocal talents of Shelly Hirsch, Phil Minton, and Theo Bleckman, as well as saxophone legend Roscoe Mitchell. I have decided not to give this one away, but to use a relatively new service with the unlikely name of CDBaby. CDBaby will host the files for download on their site, with all the now-standard ability to share, comment, and so on. But more importantly, they will place the music on iTunes, Pandora, Spotify, and so on. I have to pay them for this service, and they will not accept my work unless I charge for it. I have chosen a very low amount: $1.99 for nearly an hour of music. All my previous works will remain available on my web site for free.

In a way this feels like a retreat from the across-the-board music-for-free stance I have taken for the last seven years. But really I am just trying to keep my head above water in the digital deluge.

Bob Ostertag’s newest work, A Book of Hours, can be purchased here at CD Baby

About Bob Ostertag

Composer, performer, historian, instrument builder, journalist, activist, kayak instructor, Bob Ostertag has published 21 CDs of music, two movies, two DVDs, and three books. His writings on contemporary politics have been published on every continent and in many languages. Electronic instruments of his own design are at the cutting edge of both music and video performance technology. He has performed at music, film, and multi-media festivals around the globe.

His radically diverse collaborators include the Kronos Quartet, avant garder John Zorn, heavy metal star Mike Patton, jazz great Anthony Braxton, dyke punk rocker Lynn Breedlove, drag diva Justin Bond, Quebecois film maker Pierre Hébert, and others. He is currently Professor of Technocultural Studies and Music at the University of California at Davis. For more information, BobOstertag.com

Happy Birthday cupcake.A documentary film company making a movie about the “Happy Birthday” song has filed a lawsuit against the music monopolist Warner/Chappell, asking it to return the hundreds of millions of dollars it has collected over the years in improper royalties for the public domain song “Happy Birthday”.

Claiming a monopoly they don’t even have, and then extorting people for it?  I just have no problem with suing over that.  This issue has been raised for years, but the amount Warner/Chappell asks from any given target is always less than it would cost to fight it in court, so people just paid up.  Until now.  (Warner/Chappell is hardly alone in this business model, by the way.)

The evidence in the filing looks pretty thorough, too (thanks to Techdirt and BoingBoing for their posts on this):

The full lawsuit, embedded below, goes through a detailed history of the song and any possible copyright claims around it. It covers the basic history of “Good Morning to You,” but also notes that the “happy birthday” lyrics appeared by 1901 at the latest, citing a January 1901 edition of Inland Educator and Indiana School Journal which describes children singing a song called “happy birthday to you.” They also point to a 1907 book that uses a similar structure for a song called “good-bye to you” which also notes that you can sing “happy birthday to you” using the same music. In 1911, the full “lyrics” to Happy Birthday to You were published, with a notation that it’s “sung to the same tune as ‘Good Morning.'” There’s much more in the history basically showing that the eventual copyright that Warner/Chappell holds is almost entirely unrelated to the song Happy Birthday to You.

The Techdirt post shows the full text of the suit.

[This is an editorial we submitted to the New York Times. They didn’t print it, alas — don’t worry, we’ll keep trying with other pieces — but we still think its message is important, so we’re publishing it here.]

In the last weeks of 2012, Dr. Oliver Sacks published a memorable essay in the New York Times Book Review, “Reading the Fine Print”, about how fewer and fewer books are being made available in large-print editions, and how this matters more and more to him as his vision deteriorates.

Let’s stop to ask: Why are they not available? Who or what, exactly, is behind this scarcity?

Sacks’s essay does not contain the word “copyright”. He looks everywhere else, attributing the decline of large-print editions to the rise of audiobooks (which he dislikes because they are a less engaging experience) and of digital reading devices like the Nook and the Kindle (which are difficult for him to use). After visiting the ravaged large-print section of the Strand bookstore in New York, he writes: “I came out frustrated, and furious: did publishers think the visually impaired were intellectually impaired too?”

This is the closest he comes to identifying the real cause of the problem, a cause entirely of our own making. If there is a ready demand for large-print books — and there is — then what can the explanation be, in a free market, for the steadily shrinking supply?

The answer, of course, is that we do not have a free market in books. We have a monopoly-controlled market: if the copyright holder decides not to offer a large-print edition, then those who need such an edition are out of luck. It does not matter that the readers would happily subsidize the print runs themselves, Kickstarter-style; it does not matter that many smaller and specialty publishers would gladly step into the gap to supply what the big players have decided isn’t worth the effort; it does not matter that on-demand print services would eagerly make large-print texts available in an instant, bound and ready to ship, if only they were allowed to. The system we use now does not permit any of these bottom-up solutions to happen at sustainable scale, because in a world where we’ve just built a gigantic, globe-spanning, low-cost copying machine — the Internet — we have also elected to keep, and indeed tighten, a monopolistic distribution system originally designed to regulate printing presses in the late seventeenth century.

That word “monopoly” shouldn’t be controversial. We’re used to hearing it about things like liquor distributorships in pliant jurisdictions, or energy utilities that successfully legislate competition out of the way. But if the word applies to anything, it surely applies to copyright: a government-enforced right to be the sole supplier of a text, song, etc, including the right to dictate which formats and which distribution channels copies and variants may circulate in. You’d think we’d be fairly cautious in handing out such a power, but instead in recent decades the monopoly lobby (to be fair, the sound recording and movie industries took the lead, more than the book publishers) have gotten it extended far beyond its original scope, both in terms of its per-work duration and of its censoring powers.

Once you start to see it as a policy choice, rather than as a law of nature — the latter being how that lobby would prefer you to think of it — all sorts of phenomena begin to look different. It’s not just about large-print editions. Do you have any idea how many translations are suppressed because rights cannot be negotiated? How many audio books are not recorded because the sole rights-holder couldn’t be interested enough to do it themselves, yet is still willing to prevent anyone else from doing it? Did you know that neither the FDA nor private-sector patient protection organizations can review crucial software code in medical devices, because the manufacturers assert copyright and refuse to circulate the code?

For that matter, should George Lucas be the only person in the world who can make Star Wars movies, no matter how badly he botches them? The issue is not that Lucas shouldn’t be free to make any movie he wants, it’s that the pernicious nature of monopoly, and of the “get permission first” culture it creates, means there is not true competition in the market: no one else is free to try and do better.

The industry’s response to this would be, as it has been for centuries, that it is the only way to pay authors. This is laughable. The system was not designed to pay authors and mostly does a lousy job of that. It was really designed to subsidize, and to a lesser degree regulate, distributors, which it accomplishes very well — otherwise they would not argue so regularly and noisily for its expansion.

There’s no shortage of concrete recommendations to improve the situation. My organization is but one of many calling for us to step back from the brink and return to treating culture as something people don’t need permission to participate in. For starters: bring back registration requirements and renewals; require a fee to maintain a monopoly license; distinguish attribution law from copying law (their current conflation is both the result and the servant of the monopolist’s cause); do away with retroactive extensions, retroactively; shorten copyright terms; etc.

But what we need first is a fundamental change in how we think about copyright. It is not a natural law, nor is it even rooted in the common-law doctrine of property ownership. It is a monopoly created by statute, with only the purposes and powers given to it by statute. If it’s not doing what most people want it to do, we can and should fix it, without sentimental and historically suspect notions that a three-century old industrial regulation is somehow the shield of the artist. Indeed, the current system hurts artists perhaps most of all.

There are signs that the dam is starting to break. Recently, a researcher with the Republican Study Committee circulated a position paper [1] that said nothing more shocking than what I’ve said above: that copyright is a monopoly-based policy, that it should ideally be shaped toward the public good with all assumptions on the table for inspection, that such reconsideration has not yet happened, and that a party that wants to be in tune with younger voters and with future trends would do well to start looking at the issue with fresh eyes. Such is the strength of the Hollywood lobby that those ideas would have been unthinkable for a major party researcher to produce even a few years ago. Apparently they are still pretty edgy, because the position paper was immediately disavowed by the RSC and the researcher, Derek Khanna, was fired shortly thereafter. But he was right, and I hope Oliver Sacks is reading a large-print version of his paper right now.

[1] We originally referred to Derek Khanna’s paper for the Republican Study Committee as a “draft”, but since then have learned that it was not merely a draft — it was a finalized position paper, later retracted. Techdirt has more about the incident, and Khanna’s paper itself is here: Three Myths about Copyright Law and Where to Start to Fix It.

Nina Paley looking jazzy

QCO Artist-in-Residence Nina Paley’s interview with at Baixa Cultura, conducted by email with journalist and photographer André Solnik. The English below is the original; Baixa Cultura translated Nina’s answers.

1. When your interest on free culture has begun?

For a long time I thought copyright terms were too long and the law could use reform, but I didn’t really understand Free Culture until October 2008, after months on the film festival circuit with my then-illegal feature Sita Sings the Blues. Free Culture was too audacious a concept for me to think about clearly until then. One morning I finally got it — freeing my work would be better for the work — and I spent the next half-year preparing for a Free, legal release of SSTB. That finally happened in March 2009, when I finally cleared all the necessary (and bullshit) licenses at a cost of about $70,000 to myself.

2. Tell me in short why artists should free their work. Is it a good choice for both renowned and new artists?

From my article How To Free Your Work:

Why should you Free your work? To make it as easy as possible for people to share your work — as easy as possible for your work to reach eyeballs and ears and minds — to reach an audience. And to make it as easy as possible for audience support — including money — to reach you…. Copy restrictions place a barrier between you, the artist, and most forms of support. By removing the barriers of copyright, you make it possible to receive money and other kinds of support from your audience, both directly and through distributors, thereby increasing your chances of success.

3. Creative Commons has recently released the final draft of the version 4.0 of its licenses. What changes would you like to see? Do you think CC should keep on supporting the nonfree licenses?

Yes, CC should stop supporting the non-free licenses. What kind of “commons” is that?

4. Although they are probably the most known alternatives to more restrictive ones, they still remain unpopular compared to the “all rights reserved“. Why is that? Do you reckon people get confused by the many possibilities given by the CC licenses?

Most people who use CC licenses don’t understand what the different licenses mean; they just call all of them “Creative Commons” as if that means anything. CC’s modular system was a good idea, I see it as an experiment that was worth doing. But the results are in: it didn’t work. What we have now are a mess of incompatible licenses, most of which fail to contribute to any real “commons,” and an increase of confusion and misinformation.

You can’t really blame Creative Commons though — the problem is copyright law. Nothing can fix it at this point. Even CC-0, a valorous attempt to opt out of copyright, doesn’t work in practice, as my experience with the Film Board of Canada showed — even after placing SSTB under CC-0, their lawyers refused to accept it was really Public Domain, and made me sign a release anyway, just to allow one of their filmmakers to refer to it. I will be saddled forever with permissions paperwork even with CC-0. I’ll probably keep using CC-0, of course, but I have no expectation it will work as it’s supposed to.

5. The BY-NC-SA license, although nonfree, it’s pretty popular. Why do you think so? What are the main issues about licensing a work using it?

People are high-minded when they choose the -NC restriction, but it accomplishes exactly the opposite of their ideals. They want to “protect” their works from abusive exploitation from big corporate players. They don’t realize those big corporate players LOVE the -NC clause, because it’s a commercial monopoly. Big corporate players are all set up to deal with commercial monopolies: they have licensing departments and lawyers. It’s the big corporate players who can afford to license your -NC works. It’s your peers, small players with no legal departments and limited resources, who can’t. The -NC clause screws over your fellow artists and small players, while favoring big corporations.

The way to avoid abusive exploitation is to use CC-BY-SA, a Share-Alike license without the -NC restriction. This allows your peers to use the work without fear, as long as they keep it Free-as-in-Freedom. Big corporate monopoly players, however, are unwilling to release anything Freely: if they want to use your work, they’ll have to negotiate a waiver of the -SA clause. For this they will pay money. It works like a regular licensing deal: for $X you waive the -SA restriction and allow them to re-use the work without contributing to the community. I have had many corporate licensors offer me such contracts, although I didn’t sign any because I was such a Free license booster.

The only reason BY-NC-SA is popular is because people really haven’t thought it through.

6. Money seems to be one of the main worries artists have when they hear someone saying “free your work“. Is this “fear“ justified? Have you recovered all the money spent in the making of Sita Sings the Blues?

No, this fear is not justified. But your question sure is biased: “Have you recovered all the money spent in the making of Sita Sings the Blues?” As if with copyright I would have! I have made more money with Freeing my work than I ever did with copyright restrictions. Period. Where do people get this idea that putting a © on something will magically generate money? It doesn’t. If it did, I would fully support copyright, and be rich. Copyright is a “right to exclude,” not a right to make money. You are free to make money without copyright, and you stand a better chance to as well.

7. You have recently announced that SSTB is now in the public domain. Although now you are finally free of burocracy envolving copyright stuff and this action could help your movie to have more visibility, on the other side it could favour restricted modifications of your work (e.g.: a book inspired by SSTB released under “all rights reserved“). How do you weigh these two sides?

Eh, honestly I just don’t care any more. Let’s just put it out there and see what happens. If something terrible happens because I shared freely, I’ll learn from that. But I think it’s stupid to worry about what other people do, and try to control it, especially with broken laws. Even Free Share-Alike licenses require copyright law to be enforced, and copyright law is hopelessly broken. I don’t want to validate or support it in any way.

Licenses are not going to fix our problems. What is fixing our problems is increasing numbers of people simply ignoring copyright altogether. Instead of trying to get people to pay more attention to the law, as CC does, I’d rather encourage them to ignore the law in favor of focusing on the art. Licenses are the wrong solution. Art is the solution. Make art not law.

8. Are you keen on the free software movement as well? Any of your works was made using free softwares?

I’m attending the 2013 Libre Graphics Meeting in Madrid this year, to discuss building a good Free vector animation tool I can actually use. More in this article, It’s 2013. Do You Know Where My Free Vector Animation Software Is?

Cómo liberar tu trabajo

Fuente: How To Free Your Work por Nina Paley

Traducido por Valentina: valebone#yahoo.com.ar [Reemplacen # x @-Muchas Gracias a ella!!]

[Al final dejamos una aclaración para la Argentina]


  1. Teoría:

¿Por qué debería liberar mi trabajo?

Para hacer lo más fácil posible que la gente comparta tu trabajo –lo
más fácil posible para llegar a sus ojos, oídos y mentes –para
alcanzar una audiencia.

Y para hacer lo más fácil posible que la audiencia apoye, incluso

Las formas de apoyo de la audiencia incluyen:

  1. Dinero
    – el público quiere apoyar a los artistas que le gustan. Un botón de “Donar” les da un mecanismo fácil apra hacerlo. El público compra merchandising de artistas que le gustan por la misma razón.
    Dales una “Razón para comprar” y lo harán.

  2. Trabajo
    –algunos fans pueden hacer websites, vender merchandising en conciertos, ayudar en promociones, etc. Si necesitás ayuda, pedísela primoero a tu público. Nadie está más motivado para ayudarte que tus verdaderos fans.

  3. Promociones
    – las recomendaciones boca a boca son las más efectivas para la promoción, y el público lo hace sin ninguna imposición si el trabajo les gusta.

  4. Distribución

    – la llamada “piratería” es un servicio extremadamente valioso. La distribución sin ayuda del público es cara: imagínate si tuvieras que pagar cada copia de tu trabajo (como pagar por una edición de libros o cds), y después almacenarlos y distribuirlos hacia cada potencial espectador. ¿Querés que 1000 personas escuchen tu canción? Imaginate si tuvieras que pagar al menos $1000 para tener al menos la chance –sin incluir costos de almacenamiento y envío. Entonces, por supuesto, podés cobrarles por el privilegio de escuchar tu canción, vendiéndoles cds pero la
    barrera del costo hace que sea todavía más difícil que quieran escucharte. Cuando el público distribuye tu trabajo por vos, ellos asumen los costos de hacer y compartir las copias, no vos. La distribución del público no te cuesta nada.

  5. Archivar
    – el costo de archivar de forma privada tu trabajo es muy alto; los fans lo hacen gratis. Mientras más libre es el trabajo, más grande va a ser el archivo, especialmente a medida que cambian las tecnologías y los formatos. Los cds y dvds pueden volverse obsoletos, pero los fans migran los trabajos de un formato a otro, asegurándose que siempre estén accesibles y actualizados. Ejemplo:
    las películas de copia restringidase desintegran en latas.
    Digitalizarlas es caro; digitalizarlas sin permiso es un riesgo demasiado grande como para invertir en eso. Sin un público que ayude, estos costos tienen que ser financiados exclusivamente por el dueño del copyright. Los formatos de los archivos digitales son notablemente inestables; muchos discos duros de hace diez años son incompatibles con la tecnología de hoy. Los códigos de video cambian rápido, y nadie sabe cuáles permanecerán en uso y cuales serán viejos. Un dueño de derechos puede continuamente buscar qué nuevos formatos están evolucionando, y asegurarse de migrar sus archivos. De todas formas, es factible que se pierda algunos cambios de formato; es muy difícil para una sola entidad abarcar todas las innovaciones tecnológicas. Los formatos análogos son más seguros, porque no cambian tan rápido, pero archivar films de 35mm es extraordinariamente caro. El negativo tiene que transferirse a films
    de archivo, y después guardarse en instalaciones seguras. Si algo pasa en esa instalación, o no se paga el alquiler, se pierde el archivo. En cambio, la cultura libre abre la posibilidad de tener el sistema de archivo más sólido, descentralizado y actualizado que pueda existir; el público y sus aparatos.

    Restricciones de copia: colocar una barrera entre usted, el artista, y la mayoría de las formas de apoyo. Mediante la eliminación de las barreras de derechos de autor, se hace posible la recepción de dinero y otros tipos de apoyos de su público, ya sea directamente oa través de distribuidores, lo que aumenta sus posibilidades de éxito.

  1. Práctica:
    Cómo liberar tu trabajo

  1. Armá tu propio website

Cómo armar un website

Hay miles de formas de armar un website, desde contratar a profesionales de diseño y sistemas, hasta un blog gratis. Asumiendo que estás quebrado y no tenés habilidades tecnológicas, esta es la forma más fácil:

  1. Registrate en  WordPress blog.
    Es gratis y fácil.

  2. Seguí las instrucciones

Eso es todo. Tu propio website, gratis, con miles de templates para elegir y un montón de ayuda de wordpress. ¡Eso es todo lo que necesitás! Claro que podés tener algo más avanzado, pero ya requiere más habilidades, tiempo, y/o plata. Un blog gratis de wordpress es más que suficiente para empezar.

  1. Conseguí cuentas de PayPaly Flattr .
    Agregá botones “Donar” y “Flattr” en el website.

  2. Elegí una licencia libre

¿Qué es una licencia libre?

Una licencia libre es lenguaje legal por encima del copyright. En nuestro actual régimen de copyright, todo tiene copyright, quieras o no. Lo que escribo acá tiene copyright, por más de que no quiera.
Actualmente no hay ningún modo de “salirse” del copyright. Todo lo que podés hacer es adjuntar una “Licencia libre” al trabajo, que les da a los usuarios algunas libertades que el copyright automáticamente quita.

Una licencia libre garantiza Cuatro Libertades de Cultura Libre:

  1. La libertad de ver, escuchar, leer, o participar del trabajo;

  2. La libertad de estudiar, analizar y fragmentar copias de tu trabajo, adaptándolo a tus necesidades;

  3. La libertad de redistribuir copias para ayudar a los que te rodean;

  4. La libertad de mejorar el trabajo, y mostrar tus mejoras al público, para que todos se beneficien.

Creative Commons es la marca más famosa de licencias libres, sin embargo la mayoría de las licencias libres de Creative Commons ¡no son gratis! Que la licencia tenga la marca Creative Commons no significa que sea gratis.
De hecho, la mayoría de las licencias tiene restricciones incompatibles con la Cultura Libre.

Las 3 licencias gratis que ofrece Creative Commons son:



Si ves las letras NC o ND en cualquier lado de una licencia Creative Commons, no es gratis. Tené cuidado: usá sólo las de arriba, sino, tu trabajo no va a ser gratis y puede que alejes a esos fans, que tanto ayudarían.

Otras licencias gratis para trabajos culturales son la Creative Commons y la  WTFPL.

Como todas las licencias van por encima del copyright, pueden verse como validando o extendiendo el alcance de la ley de copyright. Para los que ya están hartos de las leyes actuales y la interferencia de abogados en la esfera cultural, una “no-licencia” puede ser conveniente. Las no-licencias no son licencias, son manifiestos de
intención: que el artista quiere que su trabajo sea copiado. Éstos no están por encima de ninguna ley vigente, a la vez que tratan de evitar las leyes (y la fuerza estatal que la respalda).

Nuestra no-licencia favorita es  Copyheart, que se ve así:

Copying is an act of love.
Please copy and share.

Tanto si usás una licencia libre aprobada por un abogado o una no-licencia, es crucial que dejes a tu público saber que son libres de copiar, compartir y construir sobre tu trabajo. Mientras resulta tentador directamente ignorar el copyright, tu público puede no saber que tu trabajo es libre a menos que se lo digas. Tratá entonces de incluir una nota de Licencia Libre o un mensaje Copyheart, donde sea que postees tu trabajo.

Más sobre Licencias Libres acá:






  • 4.
    Subí archivos a

Cuando subís un trabajo a archive.org aparece una ventana como esta:


Llená los campos (no como el ejemplo, deberías incluir un link a tu website in la caja “description”), después hacé click en “choose a license”. Archive.org te deja adjuntar licencias gratis y pagas de Creative Commons para subir tus trabajos. Es muy importante especificar FREE license durante el proceso.

Archive.org no te deja especificar licencias por nombre; en cambio, te aparece una caja de diálogo en la que te pide que chequees las opciones.
Para especificar una licencia libre, tenés que elegir entre
CC-BY-SA, CC-BY, o CC-0.

Para especificar  CC-BY-SA, chequeá las opciones como sigue:

Permitir usos comerciales de tu trabajo? SI

Permitir modificaciones de tu trabajo? SI, siempre y cuando los otros también lo compartan


Para especificar CC-BY, chequeá las opciones como sigue:

Permitir usos comerciales de tu trabajo? SI

Permitir modificaciones de tu trabajo? SI


Para especificar  CC-0, clickeá en el link CC-0.

Una vez que hayas seleccionado tus opciones, clickeá “Seleccionar licencia”. Debería aparecer una ventana así:

cc-by-sa confirmation

Cuando el archivo se subió por completo, clickeá “Compartir archivos”.
Archive.org creará una página para que tu trabajo se vea más o menos así:


Copiá la URL de tu archive.org y linkeala desde tu website y cualquier otro lado. Por ejemplo, la URL de esta página es

  1. Poné el link de archive.org en tu website. También escribí sobre el trabajo y posteá versiones directamente en tu website, si es posible.

Formatear tu trabajo para compartirlo.

Querés que tu trabajo sea lo más fácil de copiar como sea posible. Un texto es más fácil de ser leído si está formateado para browser y e-readers. Una canción es más fácil que la usen para películas, videos, bailes o remixes si está disponible en alta calidad .wav; es más fácil que los fans la compartan si está en
 .mp3 o .ogg. Las imágenes que más fácilmente se comparten en websites están en baja resolución en jpegs and .pngs, per pueden tener más aplicaciones en .svg, .eps o en alta resolución  TIFF.
Lo ideal es que lances tu trabajo en la mayor variedad de formatos.

¿Pero cómo lo hago? Reformatear puede ser un embole, y encima cómo sabés qué formatos quiere el público?

Ahí es donde vienen los fans. Pediles ayuda. Aunque sólo tengas uno, o un puñado. Lanzá un master
y pediles que lo conviertan a otros formatos. Si sos músico, subí una versión descomprimida .wav de una canción en archive.org. después pediles que lo conviertan en .mp3, .ogg, y otros formatos, y repostealos en archive.org, o cualquier lado para compartir archivos.

Yo lancé las ilustraciones de  “Avatars of Vishnu” en archivos .png de alta resolución. Un fan en seguida los pasó a .svg.

Cuando los fans saben que subís tu trabajo con licencias libres, ellos los pueden convertir en formatos más usables. Además de darte un servicio valioso, este trabajo fortalece el lazo entre artistas y fans; lo que Mike Masnick llama CwF (connect with fans).

  1. Si trabajás en video, subilo a  Youtube y Vimeo además de archive.org. incluí links a archive.org y tu website en el campo “descripción”. Posteá el video en tu website.

  2. Promocioná. Decile a todos tus fans. Pediles que lo difundan. Si estás en Twitter, Facebook o cualquier otra red social, posteá que tu trabajo es libre y gratuito. Asegúrate de mencionar la licencia específica, así saben que es libre. Incluí un link a tu website.

¿Y si no quiero promocionar mi trabajo online?

Internet no es para todos. No todos quieren pasar tiempo en Facebook o Twitter; no todos enganchan la onda. No todos quieren bloguear, mandar mails, o lo que sea que se hace ahora. Una solución es forzarte a aprender usar estas herramientas, pero hay otra opción: decile a tus fans que lo hagan por vos.

Si sos un músico que da shows en vivo, pedí voluntarios de “social media” en tu próxima actuación. Si sos un artista al que no le gusta internet, pero va a eventos y fiestas en la vida real, difundí entre tus amigos, fans y compañeros. Si sos profesor, decile a tus alumnos que necesitás ayuda. Otros pueden hacer la promoción online
por vos –si los dejás. La mejor manera de dejarlos es darles una participación en tu trabajo y no tratar de controlarlos. De nuevo, liberar tu trabajo es la clave para obtener este servicio. Entonces los fans no están trabajando para vos, están trabajando con vos. Si ponés restricciones a las copias de tu trabajo, tus fans se van a
sentir explotados. Liberando tu trabajo, les hacés sentir que están en el mismo equipo.

  1. Si tenés algo que vender en relación con el trabajo (DVDs, CDs, remeras, llaveros, servicios, trabajos a pedido, etc.) dejálos disponibles cuando des a conocer el trabajo. Si tenés una tienda virtual, linkeala. Si das shows, llevá cosas a las funciones y que alguien las venda por vos. Decile a la gente que pueden comprar merchandising en el show.

¿Cómo hago plata?

Hay infinitas formas de ganar plata con trabajos libres. Liberarlos es el primer paso.

Mi modelo de negocio es “El contenido es gratis, el soporte no. Usá el recurso ilimitado para vender el recurso limitado”.  free_vs_not_free

Sólo porque el contenido sea libre, no significa que no puedas vender “soportes”: libros, discos, impresiones, pinturas y otros. Un ejemplo exitoso es el de mi tienda online Sita Sings the Blues”.
Los autores que tienen e-books gratis venden más libros de papel (piensen en Paulo Coelho). Mientras más contenido circule gratis, mayor será la demanda de objetos.

Relacionado a esto, aunque no es exactamente lo mismo, es  Techdirt.com, que actúa con el modelo básico para artistas CwF+RtB “Conectar con los fans + razones para comprar”. En la página podés encontrar muchas formas de ganar dinero a través de tu arte. Aunque acá no se considera un prerrequisito que el trabajo sea libre, esto lo hace mucho mejor.

  1. Dejáte llevar. No hay límites de tiempo. Una vez que el trabajo está liberado, en cualquier momento puede ser descubierto. No hay garantías de éxito en el arte. Ya hiciste lo tuyo: deshiciste el obstáculo de las copias restringidas. El resto depende del mundo.
    Ahora podés pensar en tu próxima obra!

¿Cómo consigo fans?

Poniendo tu obra ahí afuera. Hacé lo que querés que vean, y compartilo. Sé paciente. Puede llevar un tiempo. Lo más importante que podés hacer en este nivel es enfocarte en tu producción y liberarla lo mejor que puedas, para que tarde o temprano otros puedan encontrarla y compartirla.

 Fuente: How To Free Your Work por Nina Paley

Muchas Gracias a Valentina: valebone#yahoo.com.ar por la traducción!

Entrevista a Nina Paley: Hagan Cultura No Leyes!


Guía de Licencias Creative Commons de Argentina.

Algo importante:

“Es aconsejable que antes de elegir cualquier licencia el autor / autores de las obras intelectuales las registren en la Dirección Nacional de Derecho de Autor. Si bien las licencias Creative Commnos pueden obtenerse sin realizar este paso, ya que permiten expresar el derecho de autor, el registro previo de las obras es importante para agregar una protección más frente a posibles usos indebidos de las mismas. Este registro autor/es y de su contenido. Entre otras cosas, facilita la prueba y la presunción de autoría. Da protección, certeza de la existencia de la obra, de su título…”

Dirección Nacional del Derecho de Autor

Algo más en nuestra lista de correo.

Lascaux Cave II: horse etc.

April 1, 2013 – AP.  Lawyers representing the 631 million known descendants of the painters of the famous Lascaux Cave paintings announced today a far-reaching plan to recover royalties from the more than 70 years of modern-era unlicensed reproduction of their ancestors’ work.

Said François Fraisant-Pître, who still lives in the area where his family painted aurochs and other fauna later driven extinct by more recent members of his family, “My great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-grandfather understood the investment he was making for us, and it is to honor his memory that we now seek payment of the royalties that he rightfully expected to go to our benefit.”

The legal team emphasized that because the paintings were at least 17,000 years old, they could not be sure how many people had made copies in the intervening millennia, and that out of concern not to make any overly broad claims, they were only seeking payment for photographic and other reproductions dating from after the caves’ modern discovery in 1940.  “It is possible, of course, that others have entered the caves at various points in history and made use of this art,” said lead attorney Belinda Featherstonehaugh, herself a Lascaux descendant along with most of the population of the British Isles. “Of course, if we had any way to identify those infringers with certainty, we would attempt to recover royalties from their descendants today; however, without any reliable way to know who was there, we felt it best to err on the side of caution and discretion.”

Featherstonehaugh added that the families would be seeking additional compensatory damages from the estate of Georgia O’Keeffe, whose paintings of deer skulls and antlers from the American Southwest were “clearly derivative, and were made entirely without permission,” in the lawyer’s words.Lascaux Megaloceros

QuestionCopyright.org Executive Director Karl Fogel, however, criticized the recently announced enforcement effort, saying “This just shows how little has changed in seventeen thousand years.  The descendants may indeed have a valid legal claim, especially with the retroactive copyright term extensions of 7,500 B.C. and again in 600 A.D., plus the dropping of registration requirements at the start of the Holocene interglacial period.  But the suppressive effect this will have on the entire history of Western art is totally unjustifiable.”

“These lawyers and their clients,” Fogel went on to add “are just complete Neanderthals.  They can’t see, or won’t acknowledge, how the world has changed, how the economics of distribution have been completely upended by the arrival of the Internet.  They’re still stuck in the old model.”






Brain in jail.There’s been a persistent mistake in coverage of the Aaron Swartz case — a bad metaphor, but more serious than just a bad metaphor.  It’s a mis-framing that pulls people’s attention away from what actually happened and lures them into a familiar but wrong story.

This mistake has long been found in most coverage of anything related to unauthorized copying, including this case starting from Aaron’s arrest.  But it’s become even more noticeable now (and, to the many of us who care that Aaron’s life and work be represented accurately, more annoying) because there’s a particularly clear-cut example of it happening in many of the articles that focus on the prosecutorial overreach in this case.

I’m referring to the bizarre idea that when someone copies data, they’ve “taken” it from someone else, and that therefore it makes sense to talk about “returning” the data.

In Aaron’s case, journalists usually write some variant of this statement:

Aaron Swartz returned the data to JSTOR, and JSTOR then considered the matter over.

I don’t remember where I first encountered this misleading “returned the data” trope (there have been so many instances!), but one of the earliest times was in JSTOR’s own statement, from which some journalists may be unconsciously taking their cue:

“…Aaron returned the data he had in his possession and JSTOR settled any civil claims we might have had against him in June 2011.” (JSTOR, Jan 2013)

(Or perhaps they’re taking their cue from U.S. Attorney Carmen Ortiz, whose office initiated Aaron’s prosecution, and who said of it with almost wilful self-delusion “Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”  No, I’m not kidding.  Yes, she really said that.)

The same odd framing started appearing in many places.  For example, here’s Rolling Stone:

“Among the most frustrating components of the ordeal was the fact that JSTOR, ostensibly the most overtly wronged party, had declined to press charges against Swartz after he returned the downloaded documents.”  (Rolling Stone, 16 Feb 2013)

There are so many other examples… this week, it happened in The New Yorker:

“Soon after his arrest, he returned the data he had taken, and JSTOR considered the matter settled” (The New Yorker, 11 Mar 2013)

I finally felt driven to write a letter, though it feels like bailing out the ocean at this point:

To the Editor,

Larissa MacFarquhar, in her article on the Aaron Swartz case (“Requiem for a Dream”, March 11th), perpetuates a common misunderstanding when she writes “Soon after his arrest, he returned the data he had taken, and JSTOR considered the matter settled”.

Aaron couldn’t have “returned” anything because he didn’t “take” anything.  His computer asked JSTOR’s servers to make copies of their data and send those copies to him, which they did.  The metaphor of “return” is nonsensical because JSTOR never lost anything in the first place.  Four pages later MacFarquhar quotes Swartz himself making this point: “…downloading isn’t stealing.  If I shoplift an album from my local record store, no one else can buy it.  But when I download a song, no one loses it and another person gets it.  There’s no ethical problem.”

What MacFarquhar should have written was that Aaron Swartz destroyed his copies of the data, and that JSTOR was satisfied with this destruction — a very different notion than that of “return”, but a much more accurate one.


-Karl Fogel

What can we do to get journalists to see that copying is not theft?  That data is not a physical object that needs to be “returned”?  That JSTOR was satisfied by copies of academic articles being destroyed, not returned?  That’s a pretty big difference: returning vs destroying.  It’s important to get it right.

Producing Open Source Software (front cover)Why is free so hard?

I got an email from what I believe to be a reputable publishing and online training company, asking about training opportunities based (presumably) on my book.  I wasn’t really interested in doing online training, and anyway if I were I’d first talk to O’Reilly Media, my current publisher, with whom I have a good relationship and who have been very supportive of the book.

So I eventually wrote this (after an initial round of conversation):

Thanks for the inquiry. I’m not really looking to get involved in online training, personally, but am perfectly happy to have my materials used by someone else doing online training if they wish, and of course the free licensing means that’s possible.
Best of luck,

But freedom is so alien a concept nowadays that that didn’t work — here’s their response:

Thanks for your response. Yes, I would like to pursue your materials for online training as you suggest.  Please either recommend someone who you would feel comfortable partnering with (ie allowing this person use of your materials in courses) or let me know if you are open to looking at candidates that I can suggest.

Can you bullet the 3 top subject areas that you would be interested in contributing course materials if you would like to pursue this idea. I can understand you are very busy with your existing projects, so if it is too time consuming to consider further, that’s no problem.

I would prefer to serve the audience if you wish to share materials that would be particularly useful as I continue in the cause of tech publishing moving information to the people who need it most.

I’d love to know what readers think of my response below, because (as our artist-in-residence Nina Paley has also found) this comes up all the time, and it’s difficult to know how to answer it clearly enough.  Here’s my second response:

Well… I think you may be new to free licensing? 🙂

It means you don’t have to ask my permission nor necessarily have my involvement.  My books are released under open copyright.  The details (for the book most likely to be of interest to [redacted], I guess) are at http://producingoss.com/.

This is also how open source software works.  I just release my books under the same kinds of terms as used for open source software.

If I were involved in developing this project with [redacted], then I would charge for my time.  But I don’t charge for the use of materials I wrote, because I’ve renounced the monopoly powers that would otherwise require you to get my permission.  You can just use the materials, including making modifications and adaptations.  Freedom means freedom! And I’m totally serious when I say I’d love for you to take advantage of it, if you want to.