Lerner Hall at Columbia University

We’re taking questions from the Net for the panel discussion below. So if there’s something you’d like raised, please leave a comment here — we’ll bring the comments to the panel.

(And if you submit your question via, say, a video on YouTube, we’ll try our best to play it live during the panel. Yes, that’s a hint!)

  • When: Wednesday, 3 December 2008, 8pm-10pm
  • Where: Satow Room – Lerner Hall @ Columbia University (see map)
  • What: Panel discussion about current law and about the future of copyright policy.
  • Who: Stanley Pierre-Louis (VP of IP, Viacom); June Besek (Prof. of Law, Columbia University); Karl Fogel (Editor, QuestionCopyright.org)

The event is free, but space is limited. Please RSVP to: decause{_AT_}softwarefreedom.org.

U.S. Senator Patrick Leahy (D-VT)

Patrick Leahy (D-VT) was one of the Senators who sponsored S. 3325, despite his generally good track record on electronic freedom issues. See below for information on how you can help Sen. Leahy understand why he shouldn’t support this bill.

QuestionCopyright.org doesn’t normally focus on immediate legislative goals. Current copyright law is pretty bad, but our mission is to change the way people think about copyright, in the belief that legislative change will follow.

But every now and then, a proposed new law is so off-the-charts wrongheaded that it needs to be immediately shut down. U.S. Senate Bill S. 3325 is one such. Public Knowledge has a great summary of what’s wrong with it:

Last week, the Senate Judiciary Committee gave the green light to S. 3325, the Enforcement of Intellectual Property Act of 2008. We need you to show them the red light, NOW! This intellectual property enforcement bill lets the DOJ enforce civil copyright claims and lets the government do the MPAA and RIAA’s intellectual property rights enforcement work for them — at tax payers’ expense.

The bill also needlessly bundles trademark protections with copyright restrictions, thus further confusing these two unrelated things in the mind of the public (and, no doubt, in the minds of many Senators). Identity protection is a fine goal, but it has nothing to do with copyright. Search the bill for the phrase “counterfeit and pirated goods” and you’ll see immediately how these different concepts are repeatedly yoked together, with the effect that mere unauthorized copying is tainted with the stigma of counterfeiting. For example:

For purposes of this title, the term `intellectual property enforcement’ means matters relating to the enforcement of laws protecting copyrights, patents, trademarks, other forms of intellectual property, and trade secrets, both in the United States and abroad, including in particular matters relating to combating counterfeit and pirated goods.

See the full text of the two proposed versions of the bill for details.

Public Knowledge has set up a very convenient web page from which you can call or fax your Senators (if you’re a U.S. citizen) and tell why they should oppose S. 3325. Please, if you have ten minutes to spare today…

GO THERE NOW AND DO IT.

Thank you.

seal of public.resource.org

Thanks to James Jacobs for sending in a link to the article “He’s giving you access, one document at a time” by Nathan Halverson at pressdemocrat.com. It’s about how Carl Malamud and public.resource.org are defying the state of California by — get this — putting California’s laws online for public access.

You wouldn’t think that would be a particularly controversial thing to do. In fact, you might even expect California to have done so already, and in standard, parseable electronic formats too (as per the Open Government Data Principles). But instead, California enforces copyright over the texts of its laws. Quoting from the article:

California asserts copyright protections for its laws, contending it ensures the public gets accurate, timely information while generating revenue for the state.

“We exercise our copyright to benefit the people of California,” said Linda Brown, deputy director of the Office of Administrative Law, which manages the state’s laws. “We are obtaining compensation for the people of California.”

It’s a great example of how copyright restrictions inevitably spread to new areas, without regard to the public purpose. The logic goes something like this: the law is a text; a text has value according to its usefulness; if a text has value, someone can make money by restricting who shares it and then charging money for a lease on that monopoly; the state always needs revenue; ergo, the state should restrict the spread of its own laws, in order to raise funds! The reasoning is bizarre, almost breath-taking in its audacity. And it leads civil servants to claim, with straight faces, that the state has an interest in denying people access to the text of the law.

What’s most interesting is how clearly this case reveals the old relationship between printers’ monopolies and copyright law. California justifies their copyright restriction in exactly the same way the English Parliament justified the first copyright law: that the public good is best served by profitable distribution, and that means supporting printers by giving them a monopoly.

Of course, that argument made a lot more sense in 1709, when there wasn’t an Internet around to allow zero-cost distribution of public goods :-).

Piracy Is Not Theft

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

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

Friedman’s response is terrific:

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

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

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

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

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

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

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

The Beach

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

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

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

-Karl Fogel

Ghost Works Survey temporary logo

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

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

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

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

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

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

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

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

ApacheCon EU 2008 logo

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

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

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

C. Michael Pilato playing the guitar

Reader C. Michael Pilato sent us this story…

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

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

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

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

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

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

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

Portait of Karl Fogel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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