Karl Fogel: OSI Fellowship Project Proposal

(Application 68811, 2009)

  1. Description of the project. A clear detailed description of the Project, including particular outputs or products, any arguments and ideas the Project will put forth, and the need for the Project.

    2. Copyright restrictions have been steadily tightening even as the Internet enables more and more people to share information and culture. Loosening these restrictions is essential to the development of an open society — and changing the assumptions that led to the restrictions is essential to the continuance of an open society.

    The purpose of this project is to build a sustainable non-profit organization dedicated to reframing and expanding the range of public debate about copyright, and to providing artists and other creators with concrete assistance in flourishing through non-monopolistic distribution methods.

    The non-profit organization, QuestionCopyright.org, already exists and has run on volunteer labor for about two years. I am seeking the Fellowship now because that organization has gotten to a point where its work cannot be brought to its full potential solely on a volunteer basis. This is the moment for an investment of full-time attention. The programs I am running increase the number of works available to the public under free licensing terms, provide a coherent critique of copyright, and offer concrete alternatives. They give artists and audiences both practical motivation and a conceptual framework for using non-restrictive distribution methods. The public advantage from such methods does not come at the expense of artists and other creators — instead, it functions as a multiplier that benefits creators too.

    The OSI has recognized how copyright restrictions can create information inequalities that impede art, education, medical care, economic development, and government transparency (for example, see Open Access to Scientific Research: Sharing Information, Saving Lives and the OpenBusiness Guide v1.0). However, without a concerted effort to reframe public perceptions of copyright and to demonstrate working alternatives, today's severe copyright restrictions will continue to enjoy passive public support, and to function as a form of de facto censorship.

    This project is about providing that concerted effort, by seeding a sustainable non-profit organization that will continue after the Fellowship year is complete. I intend to use the Fellowship to focus on building long-term sustainability for the organization as a whole, as well as for the specific programs currently running, which include:

    The need for the Project:

    QuestionCopyright.org's programs are all interrelated, and would benefit from economies of scale if I could give them full-time attention and coordination.

    For example, the Sita Distribution Project makes use of the Creator-Endorsed Mark, and outputs from the Sita Distribution Project become part of the Authors Guide. The Media Watch Project will help me gauge the success of the Creator-Endorsed Mark. The Stereo Public Domain project would make a lot of music available for incorporation into new works, and many of our volunteers are artists or educators who would be able to publicize it in the appropriate places; the release of the music should go along with infrastructure for tracking the uses it is put to, so it can be used for effective political lobbying (e.g., in the European Parliament). But all this requires focused attention. Large, disparate volunteer groups accomplish some wonderful things, but they are not structurally equipped to do everything.

    If I could devote enough attention to coordinate these (and other) projects with each other, I firmly believe the non-profit organization can be made sustainable. There has been outside interest in all of them, and even without the Fellowship I might be able to secure funding for some of them on a per-project basis. What the Fellowship would help me do is link the projects together, to transform per-project funding into long-term operational support. To do this, I will need to:

    Building a permanent organization, instead of a mere collection of independent projects, will require a level of attention that would be difficult for me to maintain without the support of the Fellowship.

    The context of the Fellowship:

    The greatest barriers to loosening copyright restrictions are not legislative, but conceptual.

    For example, spontaneous translation is frequently hampered by copyright restrictions, yet much of the public remains unaware of this. While texts released under open copyright, such as open source software documentation, are quickly translated into other languages — because the translators do not need to obtain permission first — copyright-restricted books and articles are much more rarely translated, and into fewer languages, even when the material has wide readership in the original. (See Appendix F for a case study.)

    Yet although such translations are suppressed by law — that is, censored — this suppression is widely accepted because the issue is framed as one of property ownership: the idea that for every work, there is someone (the "owner") who must be asked for permission if a new use may be made of that work. Copyright laws and treaties enforce this "permission culture", which dominates public discourse and is in turn derived from a semi-mythologized version of copyright's origins and purpose.

    If that discourse can be transformed into one about monopoly and control, rather than ownership, and if artists themselves start to prefer non-monopolistic distribution methods, then both laws and cultural norms will inevitably shift too.

    But the past five years have seen a different kind of shift — one that unfortunately is unlikely to bring about fundamental reform. Driven by services like mp3.com, CD Baby, iTunes, and by wider public awareness of the actual terms of artists' contracts with publishers (now that disgruntled artists have started blogging), this new narrative holds that copyright has gotten "out of balance" and that power needs to "return to the artists" instead of remaining in the hands of corporations. Thus the idea that someone should be in control of the work is not fundamentally challenged. Instead, the question becomes: who should that someone be? Shortening the duration of copyright terms is also part of this narrative, and while that's a good thing, it is mainly motivated by a feeling that corporations shouldn't hold copyrights for longer than the original author is alive, rather than by a feeling that monopolies themselves are the problem.

    Because that conceptual framework leaves the permission culture in place, albeit with an anti-corporate sheen and some time limits, it can make only limited contribution to expanding the freedoms necessary for a truly open society — such as the freedom to translate a work as soon as it becomes available, for example, so that the translation is of maximum possible use to the world.

    I am aware of no other organization making a consistent and sustained argument against monopoly control in all forms, while offering concrete alternative structures for artists and audiences. This position needs the best representation it can get today, as various government and industry interests attempt to limit the potential of the Internet to spread culture and knowledge. I would like to provide that representation.

    Project goals:

    My long-term goal is to change the vocabulary and assumptions underlying today's copyright debate, so that issues of freedom and monopoly control become an accepted part of conversations about copyright. Because that is a multi-year goal and will require many parallel efforts in different areas, I am applying for the OSI Fellowship in order to bring my non-profit organization to sustainability, so I can provide a stable and continued focus on this for longer than just one year.

    If simply promoting freedom and non-restrictive distribution would suffice, I would just do that. However, in order to effectively promote those ideas, I must start with an intermediate goal: making copyright skepticism acceptable in public debate at all. When the idea that monopoly control is inherently incompatible with an open society is no longer considered extreme, then it will be free to stand or fall on its own merits. Right now, copyright is widely portrayed as a moral right and the shield of the artist, rather than as a defunct censorship law reborn as a subsidy for the printing industry (and later for distribution industries in general). The way to change that portrayal is to do two things: to question it directly, with evidence and arguments, and to give people another framework to be in, to replace the one they are being asked to let go of.

    Thus my primary strategy is to identify and link together transformative constituencies: groups who have experienced copyright restrictions negatively in their own work, who are therefore open to the possibility of understanding copyright in new ways, and whose ability to cooperate with other groups is likely to increase as copyright restrictions decrease. As we offer those constituencies the tools to implement non-restrictive methods, they will develop a new intellectual framework and vocabulary around copyright (for example, clearly separating the concepts of attribution and copying). Over time, I will incorporate their experiences into general public education projects of a participatory nature, some of which have been described above.

    Arguments and ideas:

    Currently, most people conceive of copyright as a kind of property, instead of as a monopoly instituted to favor centralized distributorship. This conception is no accident: it has been carefully nurtured by the publishing industry ever since copyright was invented (by the printing industry, as a more liberal replacement for an expiring censorship statute) three centuries ago.

    We can reframe the way people perceive copyright by conveying the following messages, which address their key concerns:

    Specific work products:

    The specific work product is an effective and sustainable non-profit organization. (The sub-products leading up to that have been listed in the project descriptions and appendices given earlier.)

  2. Existing efforts vs new terrain. An explanation of how the Project builds on existing efforts or charts new terrain.

    3. This Fellowship will integrate with a number of existing efforts, while advancing a point of view that goes further than many of them. Some of the most important are:

    Many groups are now working on open access and freely redistributable goods, because they see the obvious public benefit in it. At the same time, they are reluctant to take the final philosophical step and advocate that no one, not even the creator, should be given monopoly control. The new terrain I am charting is to lay down a direct line of logic from the former to the latter, partly by showing what will be gained from going the whole way, and partly by showing what will not be lost (specifically, accurate attribution and the ability to earn money from creative endeavors).

    In that sense, I will be building on many different efforts, but seeking to extend them all in roughly the same way. The exact method by which each constituency should be approached may differ, but my goal is to push them all toward the same new terrain.

  3. A description of the Project's expected impact and how you might measure it.

    4. Some of the expected impact has been described in the specific outputs listed earlier. What I am looking for during the Fellowship year is:

    1. Additional high-quality cultural works, in different media, released freely by their creators using the distribution techniques I've been developing with our artist-in-residence: reliance on organized volunteerism, convenient ways for the audience to express their appreciation (monetarily and otherwise) of the artist, and the involvement of third-party commercial redistributors. The Sita Distribution Project in some ways chose the hardest medium first: film has traditionally been among the most copyright-restricted of media. If these methods can work for film, they can work for the written word and for music just as effectively or more so.

      Along with more works, I want to see more money directed into polished open content production in general. The Sita Distribution Project is already delivering approximately $6,500/month outside copy-restricted channels, and that's with much of the project still to be implemented. I believe I can increase that amount significantly during the Fellowship year, and bring new artists and bodies of work "out in to the open". The primary impact of this would be as a demonstration to other artists, who will start to wonder if these techniques might work for them too.

    2. In forums targeted by the Media Watch Project, changes in journalistic language around copyright issues. I have already started to see this in articles about the release of Sita Sings the Blues: even famed film critic Roger Ebert is now talking on his blog about outdated copyright laws as an obstruction to art, as a direct response to my comments to him about the film and the Sita Distribution Project.

      Part of the project is to actually measure this change; fortunately, the combination of large-scale volunteerism (i.e., crowdsourcing) and appropriate technological support makes it feasible to monitor changes across a wide range of media sources.

    3. More uses of the Creator-Endorsed Mark.

      Measuring increased use of the mark itself is fairly easy, as it can be done through Internet searches. I will also examine the results to discover how people are using the general technique of providing audiences with more information instead of limiting their choices.

    4. The release and re-use of a large quantity of high-quality recorded music via the Stereo Public Domain project, and the use of those results as an argument — specifically, in the European Parliament — against increasing copyright restrictions.

    5. Sustainability for QuestionCopyright.org. The Fellowship year should make it possible to start additional flows of support, primarily by seeking funding (from both the public and from other grant-making organizations) for the projects listed here.

    Long-term impacts (after the Fellowship year):

    1. A change in the norms of philanthropic funding for art and content production. We will strongly encourage grant-making organizations start to require that funded work be released under open copyright.

    2. A gradual change in the terms of debate around copyright, as more artists and content creators embrace non-restrictive methods, and as we are able to showcase the formerly hidden costs of copyright restrictions.

    3. Increased awareness within specific constituencies of the degree to which copyright restrictions directly conflict with their mission. Just during the Fellowship year, I believe I can get the issue on the table among educators and archivists (via the Stereo Public Domain project, for example), among journalists (via the Media Watch Project), among academic authors (via the Model Contracts and Authors Guide projects), and among filmmakers and videographers (via the Sita Distribution Project and the Minute Memes Project).

    4. Increased recognition among specialists in copyright law of the need to protect attribution independently from copyright restrictions. The first step in accomplishing this is building a consensus among legal practitioners that current law conflates two unrelated things, so that future legislative efforts will be supported by the legal community.

      To measure this impact, I will look for acknowledgement by at least one respected legal scholar of the conflation of attribution with copyright restrictions, and a concrete recommendation of possible legislative solutions.

    5. In the long term, increased legislative sympathy for real copyright reform, as the public gradually reconceptualizes copyright restrictions. In the United States, I have some idea of how to measure that sympathy: among other things, I have spoken at length with Daniel Swanson, the judiciary counsel for Senator Durbin (D-IL), who has indicated a willingness to work with us on gauging legislative reaction to various copyright reform proposals, and has provided valuable advice on how the legislative process works in practice in the United States. My organization has other informants knowledgeable about the European Union legislative process.

  4. A detailed account of how you will achieve your goals, including a communications and/or outreach strategy. Please describe the specific audiences you hope to reach, your reasons for focusing on them, and how you intend to influence them.

    5. My goals are twofold: success for the individual projects themelves, and securing funding for the non-profit by building on those projects.

    1. Communications strategy for the projects themselves.

    My focus in the Fellowship is on constituencies that can a) immediately recognize the restrictive effects of copyright on their work , and b) take one or more concrete actions that promote non-restrictive sharing, and that encourage acting in concert with other groups. Specifically:

    For the Creator-Endorsed Mark, I have already contacted Creative Commons about collaborating on promoting its use, and will contact commercial distributors too (e.g., O'Reilly Media, mp3.com, IndieFlix). I plan to start with O'Reilly Media, partly because I know them (they are my publisher), and partly because they already publish a number of works under free licenses and could use a way to indicate their endorsement relationship with their authors (since the authors' work can often be published by others, and sometimes is).

    The Stereo Public Domain is a gateway to reach academics, filmmakers, and educators — groups whose ability to use existing music has been heavily restricted by copyright, and for whom copyright reform proposals gain credibility when they come attached to tangible benefits. By making the results of the project conveniently available (e.g., via shipped hard drives) to entrepreneurial sites like ratebach.com (as well as Mutopia), along with sharealike-licensed metadata, I hope to get the former three groups working with the fourth in an environment in which unrestricted sharing benefits all of them. I may also have an opportunity to use the results of the project as an argument against extending copyright restrictions in the European Union.

    For work with the legal community, I am fortunate to have as our pro bono counsel Karen Sandler, who is already active with the American Law Institute (ALI) and is in a position to both gauge and affect legal thinking on copyright and attribution. Among other things, the ALI develops model laws and statements of principle that are cited by judges and sometimes adopted by legislatures; Karen Sandler may be in a good position to draft public material on this topic. In the longer term, I would like to work with the ALI to draft model legislation that protects attribution separately from copyright; this would be the first step in the long process of dissociating the two in the U.S. legal framework. I do not expect immediate results from this. I have been well advised by Daniel Swanson (aforementioned judiciary counsel for U.S. Senator Dick Durbin) about the length and complexity of the legislative process.

    Regarding influencing grant-making organizations to adopt open-access requirements for funded output: I believe the right strategy is to contact a lot of them and not spend too much time trying to win over any particular organization when resistance is encountered. This is because the desired dynamic is a snowball effect: try it with enough organizations, and a few of them will see it as a chance to stand out — which increases the pressure on other organizations to do the same, in the long run. Some organizations have such a policy already: part of my strategy is to identify them right away, and use them as examples to persuade other organizations consider the idea. As the list grows, the decision becomes that much easier for each new organization. When there are enough well-known institutions on board, it may be effective to have them publish a joint statement, a manifesto including the key points that allowing commercial re-use helps everyone and that attribution can be protected while copying is permitted.

    The Sita Distribution Project provides both a very convincing message and the means to deliver that message to independent filmmakers. Nina Paley, the author of Sita Sings the Blues, is also QuestionCopyright.org's Artist In Residence, and is frequently invited to speak at film festivals and other industry events. Because she is an artist herself, she can speak with special credibility about the benefits that freeing the film brought her, and she can describe the film's distribution model in language other filmmakers can understand. I am also well-positioned to take that message to musicians and writers. Our board member Bob Ostertag is a well-connected professional musician who has made his own works freely available online, and can help us reach other musicians who are likely to be open to this kind of distribution method. Finally, I am a member of the Authors Guild, and while it is too early to influence the Guild's official position on copyright, I can plant some seeds by using the Guild to find other writers who are interested in trying this new distribution model, offering my own experiences with it as a persuasive example.

    The above are the specific places I intend to start. But I also need to be ready to take advantage of unplanned opportunities when they arise. To that end, I will prepare materials that explain the principles of commercially viable free distribution to general audiences. This effort has natural constituencies in many areas: documentary filmmakers, educators, musicians, librarians, archivists, performance artists, writers (especially non-fiction and fan-fiction writers), anthologists, critics (who are often improperly censored from quoting what they analyze), academics, and entrepreneurs whose business models are predicated on free sharing of information and culture. Fortunately, I or my colleagues at the non-profit are already in touch with, or are members of, some of these groups already, including as part of professional trade associations. I am a member of the Authors Guild; two board members belong to the American Library Association; another is a member of the Association of Moving Image Archivists; another is a member of the ASCAP and BMI performing rights clearinghouses; and our counsel is an advisor to the American Law Institute; etc.

    2. Fund-raising and sustainability strategy.

    The sub-projects above all have tangible outputs, making them suitable candidates for project-specific funding.

    The Sita Distribution Project largely funds itself: I have already found a direct correlation between the time I am able to put into it and the amount of funding it produces. For example, it took me a long time to set up a "Creator-Endorsed" online store, because I had to do it in my spare moments. But once that was done, the audience started shopping there, because they prefer products that have the artist's endorsement. The Fellowship year will enable me to implement the rest of the Sita Distribution Project, so that it can be sustained by the artist and the fans, and repeated by other artists.

    The Stereo Public Domain project has a highly measurable result, and because of its political implications and timing issues would be one of the earliest things I seek dedicated funding for. Several of our Board members have contacts with (and in some cases are fundees of) grantmaking organizations interested in this area. In particular, Jeff Ubois has been funded by or been in an advisory role to: the William and Flora Hewlett Foundation, the Bassetti Foundation, and the Kahle/Austin Foundation. (Brewster Kahle is also on our board, but I avoid fundraising from him as I'd rather have his advice unaffected by a funding relationship.) I have also been advised to approach the Benton Foundation and the New Media Foundation.

    The Stereo Public Domain project and the Minute Memes project are both good candidates for cooperative, multi-party funding, including public funding, since they appeal to specific artistic communities and to groups with a broader interest in free culture. A private donor (a fan of Nina Paley's work) has expressed interest in funding the Minute Memes project; he has not committed to doing so, but might be persuaded if I can find matching funds.

    I will approach all the potential funders mentioned so far, but am very aware that what I need most is good advice: the grantmakers most eager to fund projects like ours may not even be listed here. I will seek that advice from the OSI, as well as from our Board members, their associates, and the artists we work with.

    Project-specific funding is the gateway to sustained operational funding. If these initial projects are successful, then some proportion of the funders will be willing to fund the organization itself. I have deliberately chosen to start with the projects that I feel have the highest chance of meeting their goals, in order to have as wide a base of satisfied funders as possible to draw on for future work.

  5. The reasons you are especially suited to carry out this Project.

    6. I have made my living in free and open source software for many years, and as a musician was educated primarily through public domain works. In both areas, I had an early taste of freedom — a practical, day-to-day understanding of what it means to be able to freely to share, modify, and rearrange works to suit my own needs or the needs of users and audiences. In the case of free software, I also experienced how powerful it can be when a community articulates its freedoms and defends them against attempts to propertize what had been held in common.

    My free software work involved not only programming, but organizing other programmers — many of whom never met in person — to write and maintain code together. From this I learned a great deal about how to motivate volunteers, and how to encourage successful self-organization. I expect to draw heavily on this experience in the Fellowship project.

    Later, as an author, I published two books while also releasing them online under free licenses, and watched as volunteers stepped up to translate them — usually multiple translators per language — and in some cases got their translations published in paper form in their respective countries. Through this process, I learned more about coordinating non-technical (non-programmer) volunteers, and learned some lessons in the importance of providing easy-to-use tools to enable people to collaborate.

    I am fortunate to have a family background in both non-profit management and in the music industry. My father managed symphony orchestras for many years, which familiarized me with the economic realities of artists' lives and with operating a non-profit, including fundraising, donor relations, board relations, and the importance of mission definition.

    Finally, in the last two to three years (since publishing my second book and starting this non-profit) I have done a fair amount of writing and speaking, on copyright reform and on open source principles. I believe this experience will be valuable as I try to set the non-profit on a sustainable course and to collaborate with other organizations.

    Please see my resumé for details.

  6. A description of how you expect the Project to fit into your career trajectory and future work.

    7. This is my career trajectory and future work. I am seeking the Fellowship in order to lay the foundation for that future.

  7. A Project timeline.

    8. A month-by-month project timeline would be a guess at best, because some sub-projects are affected by intermediate results in others, and the order in which sub-projects are started depends partly on unpredictable funding sources. Below is the rough timeline I am aiming for, with dependencies noted where appropriate.

    1. Obtain baseline measurements for projects that need them (e.g., Media Watch Project and Creator Endorsed Mark). Gather initial list of potential project-specific funders, with advice from Board, OSI, etc; prepare proposals and presentations. With pro bono counsel, recheck legal situation for Stereo Public Domain project, as it may have changed with new EU Parliament.

    2. Send out grant proposals, starting with Stereo Public Doman project and Minute Memes project (the former because it's highly fundable, the latter because it is most dependent on funding just to get started). Start Media Watch project now, by organizing volunteers, identifying news outlets to watch, and divvying them up.

    3. Document the processes used for the Sita Distribution Project, and document the results, especially the quantitative results (these numbers are important for the 21st Century Authors Guide project and the Creator-Endorsed Mark). Find two more artists willing to try the same methods. Complete the Creator-Endorsed Mark offering, identify potential users of the mark.

    4. With several artists now using the Creator-Endorsed Mark, try to get at least one publisher to use it for freely-licensed material (approach O'Reilly Media, APress, and some of the publishers currently considering a Sita Sings the Blues book).

    5. Start the Minute Memes project (or if it doesn't have funding yet, understand why and try to do something about it). Crowdsource some of the scenario writing, possibly some of the music arrangement, and as much of the supporting material as possible.

    6. Assuming the legal situation is still favorable, organize uploading and metadata generation of donor's recordings for Stereo Public Domain project. If legal situation no longer permits us to free the music, publish the metadata (to show what is being blocked) and try to start an initiative in the EU parliament with Rick Falkvinge to roll back copyright term extensions.

    7. Based on results of projects so far, prepare proposals for operational funding. Work with OSI and other advisors to identify potential long-term funders, then present the proposals to them.

  8. An explanation of how you might engage with OSI while resident in our office(s). Please specify how these interactions could add value both to OSI and to your Project.

    9. The OSI has existing projects that focus on developing open-access content and on creating organizations oriented around open-access content (e.g., the two mentioned earlier, Open Access to Scientific Research: Sharing Information, Saving Lives and OpenBusiness Guide v1.0). My project could benefit tremendously from interaction with others like those (and I hope the reverse is true as well). For example, the Authors Guide and Model Contracts sub-projects will probably use ideas and material already developed for the OpenBusiness Guide.

    Others at OSI are working on projects that involve creative output, artistic and otherwise. That may be an opportunity to try the distribution and endorsement models discussed above with a wider variety of creators and creative output, which could be helpful to both the OSI and to my project.

    Finally, the OSI operates in many countries. Contact with OSI associates who have international experience could help make my project more effective in places other than the U.S. and Western Europe.

  9. Estimated Fellowship Expenses in USD.

    10. TBD

  10. Any other relevant information.

    11. TBD