Free Culture Trust

[Note 2014-01-15: this page was originally called “Free Culture Thing”, before we’d settled on the name “Free Culture Trust”.  That decision happened after the meeting described below, so the notes have been left largely as they were, except where it matters for link or other reference purposes.]

Initial meeting held in New York City on Thursday, 12 April 2012, 2pm-4pm ET.  Attendees: Serge Wroclawski, Karen Sandler, Nina Paley, Tony Sebro, Eric Hellman, Lucy Burnett, Alan Webb, Sundar Raman, Richard (Pharos), Karl Fogel. Many thanks to the Software Freedom Law Center for hosting.

Notes

There should be a Free Culture organization (name TBD) that can receive and hold copyright bequests from artists who want assurance of unfettered public access to their works. The organization would use the copyrights to:

• Ensure the work remains available under free licensing;
• Ensure attribution requirements are met;
• Ensure share-alike requirements for derivative works are met;
• Protect the work against censorship and copyfraud (e.g., mistaken YouTube takedowns and other retroactive restrictions both malicious and accidental);
• Provide a clear registry so the public (including artists considering making derivatives) can be assured that the work is available under free license;
• Handle relicensing if/when better licenses (or versions of licenses) become available in the future;
• Ensure the persistence of Internet domains associated with the work.

This is not just for estates. It is also a way for living artists to “opt out” of restrictive copyright easily, and not have to deal with the hassle of policing their copyrights, registering them for maximum legal protection, answering questions about rights, etc.

The organization would provide legal templates to make this process easy:

• Boilerplate language for copyright assignment by a living artist;
• Same, for copyright assignment as part of an artist’s estate;
• Same, for contributing money to the organization along with their work (especially when it’s part of an estate);
• Same, for modifying contracts with publishers and other distributors so that they do not impose long-term restrictions on where the copyright ends up or what can be done with it;
• Similarly, language for contracts with publishers that offers various gradations of “free”: time-delayed free licensing, conditionalized free-licensing, liberation prices, etc;
• …what else?

For startup phase, the organization can use Question Copyright as a fiscal sponsor, since QCO is already a 501(c)(3) and this all fits well within QCO’s mission. But the organization should eventually be independent, since long-term stability and provision of services are its focus, whereas QCO’s mission is advocacy and provocative reframing of issues. The new org also will need an Executive Director of its own, but we should go looking for an ED when it’s clear that it’s time, not right at first.

The organization may eventually grow to do other things beyond just handling bequests and making sure the licenses are respected; for example, see the original meeting proposal (at the end of this page) for some other things it could do to promote Free Culture.  However, we agreed that copyright bequests were clearly the thing to start with, and that what else (if anything) the organization takes on in the future should be determined by a combination of demand, capacity, and compatibility with current activities.

Open ideas / questions:

• Idea of using enforcement actions as a means of raising public awareness, and as a fundraising tool.
• After an educational or enforcement service, the organization should send a bill to the enforcee. (Hmm, QCO should be doing this right now, too!)
• Is there a tax benefit to the donor for donating a copyright? Karen Sandler either has looked into this or knows people who have and says the issue is complicated. Nonetheless, if we could find a way to do it that would be accepted by the IRS and would not incur high transaction costs to calculate the value, that would be a huge help.

Discussion forum:

groups.google.com/group/freeculturetrust

Organizations willing to express public support:

So far: Electronic Frontier Foundation (EFF); Creative Commons (CC); the Free Software Foundation (FSF); the Wikimedia Foundation (WMF); the Center for the Study of Innvative Freedom (C4SIF); and QuestionCopyright.org (QCO).

Next steps:

1. Decide on a name.  For now, using “Free Culture Thing” (FCT) as a shorthand, but we can’t go much further without an actual name for people to grab onto.  (Update 2014-01-15: We settled  on Free Culture Trust a while ago, and various places in these notes have been edited to reflect that.  This item is obsolete now, but left for the record.)
   1. Important that the domains be available in “.com”, “.net”, and “.org” (at least Karl thinks so — ask him for domain confusion stories if you want to know why).
   2. Serge investigated the cost of FreeCultureFoundation.{com,net,org} domains, but found it would be difficult/expensive to get them all.
2. Ask artists to declare support, in a way we can count & point to.
3. Find an interested pro bono trusts-&-estates lawyer who can give us some early advice.
4. …TBD…
5. Get in touch with Digital Public Library of America (perhaps via Charlie Nesson at Berkman?  They incorporate “Open Access Trust)
6. Get in touch with The Digital Registry (again, via Charlie Nesson?)

Fundraising strategy is to drum up visible artist support first, then use that to fundraise, rather than going for money right away.

 

---

The original invitation is below, for reference, but note that one result of the meeting was to narrow the agenda from that proposed in the original mail.

From: Karl Fogel <kfogel {_AT_} questioncopyright.org>
To: <various recipients>
Subject: "Free Culture Conservancy" exploratory meeting in NY, April 12th.
Date: Fri, 06 Apr 2012 17:40:57 -0500

This mail is written so you can easily respond with just "Yes" :-).
Feel free to forward it within your organization.

It's about an experiment we want to try -- and we want to be able to
say that your organization agrees the experiment is worth making.  Can
we say that?  Read on.

(We're not asking for material help.  We'll do a Kickstarter campaign
for that.)

Also, you are welcome to come to our meeting about this in New York
City on Thursday, April 12th at 2pm, at 1995 Broadway, 17th floor.
This is short notice, so if you can't make it, don't worry -- there
will be other chances with longer notice.  But we'd love to see you
there.

So:

We're considering forming a Free Culture Conservancy, a long-term
non-profit that would perform several interrelated functions:

  * A repository for copyright estates.

    We've heard from some artists (including one very well-known
    one, who has asked to remain anonymous) that they'd be
    interested in having their works released under free licenses
    [1] after their death, and that the mechanism they feel most
    comfortable with is to will the copyrights to an organization
    that commits to such release.  There various reasons why
    artists might prefer that mechanism; for one thing, an actual
    transfer of the "property" can avoid certain kinds of
    resistance from heirs.

  * A liberation facilitator.

    Some time ago, we had an idea that government copyright
    offices could serve as a registry of liberation prices [2]: a
    copyright holder could record publicly the amount they would
    accept to liberate a given work either into the public domain
    or into free licensing.  (There are a couple of more steps to
    it, but that's the basic idea.)

    Then we realized that a private foundation could serve as
    such a registry too -- there's no need to wait for
    governments to do it. Furthermore, doing it in the private
    sector makes an interesting model possible:

    On one side, the Conservancy approaches publishers and other
    groups that have large, unprofitable backlists, and
    negotiates liberation prices in binding contracts (i.e., "You
    agree that if we bring you the specified amount of money,
    you'll liberate this specific work.  If we don't bring the
    money, nothing happens.")  It also approaches individual
    authors with the same message, when the author has the
    necessary rights.

    On the other side, the Conservancy solicits confidential
    requests from anyone (say, a cause-driven group with an
    interest in a particular work being publicly available); it
    also encourages such requests where it can.  When such a
    request is received, the Conservancy keeps it confidential,
    but makes sure to include the requested work among the works
    discussed in some larger negotiation with the relevant
    current rights holder.

    The Conservancy is explicit about the fact that this is going
    on; it just doesn't reveal the exact works, in order to avoid
    affecting a rights holder's assessment of backlist market
    value.  (Another way to say it is, the Conservancy plays an
    information asymmetry game, but is open about the fact that
    it is doing so.)

    For some works, the stars will line up, and there will now be
    a credible way for people to fundraise (e.g., on Kickstarter)
    to liberate that work -- because the target price has been
    set and won't suddenly go up as soon as the buyers get near
    their fundraising goal. The Conservancy may stay in the
    middle, enabling it both to take a small percentage on top of
    the actual liberation price in order to fund its operations,
    and to enable contributions toward liberation to be
    tax-deductible for U.S. citizens.

  * Institutional backing for takedown counterclaims.

    There are many instances of videos or music being taken off
    of sites (e.g. YouTube) due to incorrect infringement claims.
    It's tough for an individual author to handle these, but an
    organization might be able to provide some economies of
    scale.

  * Training and instruction on how to free works, distribute, etc.

    Question Copyright has already been doing a little of this,
    but fundamentally we're an advocacy organization that
    concentrates on reframing public debate -- which is different
    from a service organization that works with artists and
    distributors.

    Nina Paley has held "How To Free Your Work" workshops.  We've
    also helped several artists negotiate free (or "free-er")
    licenses with their publishers, and see an increasing need
    for that -- e.g., for template contract language, guidelines
    for authors on how to negotiate time-delayed free licensing
    into their contracts, etc.

    But all this would be more appropriate for a separate Free
    Culture Conservancy to do it, with a mission & program
    profile better suited to such services, and without a
    provocative name like "Question Copyright" making it hard for
    organizations such as the Authors Guild to even sit down and
    talk.

Our next step, assuming the idea survives the NYC meeting :-), is a
Kickstarter campaign to raise enough money to start it.  I think its
prospects are good; the idea is explainable, and there are a lot of
people out there who would be willing to try this
experiment. Kickstarter funding will probably be decisive: major
initiatives need funding, and if we don't raise enough, then this one
will have to wait. There's a certain value to just having the idea
circulating anyway -- but we'd like to do more than just have the idea
circulate, and being able to claim your support for this experiment
would make our Kickstarter pitch that much stronger.

In the long term, this won't be a program of Question Copyright; it
should be an independent organization (hopefully with your
involvement). We may start it off as a QCO program, to take advantage
of our existing 501(c)(3) infrastructure, bookkeeping, etc, in the
early stages.

We would appreciate your feedback, and feedback from others in your
organizations.  If you can make it to the meeting in New York next
week, that would be great.

Thanks,
-Karl Fogel

[1] "Free licensing" in this context is shorthand for any license that
    meets the Freedom Defined terms -- so CC-BY, CC-BY-SA, CC0, for
    example, though not -ND and -NC.

[2] http://questioncopyright.org/declared_value