This may be of interest to the QCO crowd. Eric Anderson has put his dissertation, “Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891” online under a Creative Commons license. I notice he’s at Bowling Green University, home of the Browne Popular Culture Library, an amazing repository of American popular culture (post 1876). If you ever find yourselves in Western OH, do take a trip to the library!

Title: Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891
Author: Anderson, Eric
Degree: Doctor of Philosophy (Ph.D.), Bowling Green State University, American Culture Studies/History, 2007.
Advisor: Philip G Terrie
Pages: 231p.

How did people think about copyright in the nineteenth century? What did they think it was? What was it for? Was it property? Or something else? How did it function? Who could it benefit? Who might it harm? Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891addresses questions like these, unpacking the ideas and popular ideologies connected to copyright in the United States during the nineteenth-century.

This era was rife with copyright-related controversy and excitement, including international squabbling, celebrity grandstanding, new technology, corporate exploitation, and ferocious arguments about piracy, reprinting, and the effects of copyright law. Then, as now, copyright was very important to a small group of people (authors and publishers), and slightly important to a much larger group (consumers and readers). However, as this dissertation demonstrates, these larger groups did have definite ideas about copyright, its function, and its purpose, in ways not obvious to the denizens of the legal and authorial realms.

This project draws on methods from both social and cultural history. Primary sources include a broad swath of magazine and newspaper articles, letters, and editorials about various copyright-related controversies. Examining these sources – both mainstream and obscure – illustrates the diversity of thinking about copyright issues during the nineteenth century, and suggests alternative frameworks for considering copyright in other times.

[Thanks Copyfight]

Bob Ostertag

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

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

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

Bob: “w00t” [spells it out]

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

Bob: Did I play the games?

Karl: Yeah.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bob: Sure, that’s a fair description.

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

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

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

Bob: Yeah, it was a day job.

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

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

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

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

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

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

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

Bob: Sure.

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

Bob: Yes.

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

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

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

Bob: No.

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

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

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

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

Karl: Hmmm, that’s an interesting statement…

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

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

Bob: But I could do that anyway.

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

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

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

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

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

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

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

Jessica Ferris

photo by Colin Lieberman

Jessica Ferris is a writer, performer, and teacher in the San Francisco Bay Area. After reading the article “New York University Confuses Filesharing with Plagiarism”, she wrote this response, exploring the process by which copying and plagiarism get mixed up with each other.

So an NYU provost confused filesharing with plagiarism. Many people do. How come?

I have a hunch that one of the contributing factors is the “Everything I Need to Know I Learned in Kindergarten” Syndrome.

Lots of copying goes on in primary schools: students copy down words from the board, teachers make copies of the week’s spelling test, administrators make copies of the parent newsletter. But when Miss Winthrop says “don’t copy,” she’s not referring to any of these activities. What she means is: “Don’t copy the work of someone else and try to pass it off as your own.” She means “Don’t plagiarize.”

But her choice of words is understandable, given her audience. “Plagiarism” is a four syllable word with tricky spelling, and understanding it requires abstract thought. How do you explain standard source-crediting practices to a seven year old? Meanwhile, “copy” is a two syllable word with easy spelling, and it refers to a concrete physical action.

I was teaching in an elementary school last week, and I looked up “copy” in the classroom Webster’s dictionary. It didn’t list “plagiarize,” as one of the meanings, but nonetheless, if I had told any of the students not to copy, that is the meaning they would have understood. I think this kind of under-the-radar meaning — the one we took as gospel from our beloved and feared primary school teachers — allows the RIAA and other organizations to so effectively confuse the general public, and even learned members of academia. To many people, “copyright” means “the right to control copying and take credit for having created the source material.”

A Case Study

When I did a Google search for “sue for plagiarism,” the top ten results were all discussions of the same case. The clever folks at decided to make money by using the Internet as a way to spot (and thereby discourage) plagiarism. A teacher can submit a student paper, and Turnitin compares it to its huge database. This database includes text from Internet pages, text from commercial databases of journal articles and periodicals, and text from every student paper an educator has ever submitted.

A couple of high school students whose papers were archived by Turnitin are now suing the company for copyright infringement. This is dizzying enough just by itself, but it gets more dizzying. Look at this blog post discussing the case, and just try to sort out the different meanings of “copy,” “copyright,” and “plagiarism”:

No, better yet, let’s do it together. Let’s look at the first three paragraphs.

First paragraph:

Got a term paper to write? No problem, just fire up the old Internet connection and copy some text from Wikipedia. Of course, in the good old days, you had to copy off of a neighbor or buy a copy of a paper some other student had written a few years ago.

The word “copy” appears three times. The first time it means “reproduce with the intent to plagiarize.” The second time, in the phrase “copy off of,” it means “plagiarize.” The third time it means “a reproduction made to facilitate plagiarism.”

Simply, copy = plagiarize.

Second paragraph:

Hoever [sic], modern technology means more than just new ways to cheat. It also means new ways to catch cheaters. A couple of years ago, many schools started turning to plagiarism checking software like Turnitin. The software includes a large database of documents, and when a paper is uploaded the program checks it against that database.

“New ways to cheat,” of course, refers to his use of the word “copy” in the first paragraph, filling out the nefarious connotation of the word “copy” just a little more.

“Plagiarism” in this paragraph means just what we expect it to, which is to say, just what “copy” meant in the first paragraph: “taking the writings of another and selling and/or publishing them as one’s own product.” (Definition from Have you ever checked out the etymology of “plagiarize,” by the way? It’s interesting: it comes from a root meaning to kidnap or to snare.)

On to the third paragraph:

But here’s the thing. It then adds that paper to the database for future reference. And it doesn’t ask your permission. So a couple of high school students decided to sue Turnitin for copyright violation.

This is getting very confusing! Turnitin makes money because teachers want students to stop copying, but Turnitin copies student papers! So if the copying that cheating students do is wrong, and the copying that Turnitin does is wrong, copyright violation must be just like plagiarism! Right?

Well, wrong. The muddy use of the word “copy” leads us astray.

“Copyright,” means simply the sole right of the creator of a work to say who can make reproductions of that work. The creator can sign this right over to someone else — for example, to a publisher. But copyright, in its central sense, doesn’t have anything to do with who gets credit for creating the work — it’s assumed that the creator of the work should always be credited (thus even when an author assigns copyright to a publisher, the publisher still puts the author’s name on the book).

Things are further confounded because our legal system is strange. See what says (bold emphasis mine):


n. taking the writings or literary concepts (a plot, characters, words) of another and selling and/or publishing them as one’s own product. Quotes which are brief or are acknowledged as quotes do not constitute plagiarism. The actual author can bring a lawsuit for appropriation of his/her work against the plagiarist and recover the profits. Normally plagiarism is not a crime, but it can be used as the basis of a fraud charge or copyright infringement if prior creation can be proved.

See also: copyright infringement

Since it’s difficult to sue for plagiarism, people often sue for copyright infringement instead. As in, “You took credit for having created my work, you dumb depraved hack, but I can’t sue you for that because our legal system is so twisted! So instead I’ll just sue you for having distributed my work without my permission, even though that’s really not the heart of the matter.”


So what does this all mean? It means that people fighting for copyright reform have an uphill battle, because they have to clarify our culture’s ambiguous use of language before we can all participate in the same nuanced discussion.

And while the list of failed campaigns for “No, Guys, Say It This Way!” is a long one (freedom fries, anyone?) our culture does change language use when there are enough people who are passionate about what the change signifies. The words we use to talk about minorities, for example, have changed as a result of civil rights activism.

Personally, I find myself a bit more vigilant about what I say to my students, and lucky for me, there is no shortage of teacher stock phrases. Instead of “don’t copy,” I’m pulling out the less-used but just as effective “keep your eyes on your own paper,” “do your own work,” and “no cheating.” The kids are understanding just fine. doesn’t normally focus on economic issues, concentrating instead on the suppressive effects of today’s copyright regime on art and creativity. But sometimes a story is just too good to pass up… or in this case, the juxtaposition of two stories.

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

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

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

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

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

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

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

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

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

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

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

People sometimes translate pages on this site into other languages. Naturally, we encourage this, and you don’t even have to ask permission (because making derivative works shouldn’t require permission). But if you tell us about a translation you’ve done, we’ll link to it from the original article, and host it if you want.

Recently, Hua Jin made two new translations into Chinese, which gives us a nice excuse to highlight all the translations here. If you know of more, or are interested in doing some yourself, please tell us.

So far we’ve got:

We’ve often written here about how the copyright industry loves to confuse attribution with control of copying. The two are quite different, of course: plagiarism is not the same as the unauthorized sharing of properly-attributed materials. For example, when college students download songs from the Internet, they do not replace the artists’ names with their own. The vast majority of shared files are accurately credited, even when the copying itself is illegal.

But the industry knows that the public gets much more upset about misattribution (“Artists deserve credit for their work!”) than about illegal copying (“What, I can’t share with my friends?”). So industry representatives take the easy route and simply pretend that one is the other.

I hadn’t expected to see a New York University associate provost fall for the trick, though. Marilyn McMillan, Associate Provost and CITO at NYU, has published A Note on Illegal Downloading. It starts out with a few paragraphs purely about illegal copying, then takes a turn into truly weird territory…

We know that illegal downloading of music is a widespread practice. It has become an international phenomenon, one that is hardly confined to college campuses. Its allure is clear: why would you pay for something—a song to load on your MP3 player or a movie to load on your laptop—when you can get it for free with a little exploration and few keystrokes? And why would you not share something for free with friends?

In answering those questions, the University appeals to what Abraham Lincoln once called “the better angels” of your nature and to your commitment to the culture of scholarship.

As communities of scholars and learners, research universities—such as NYU—have two primary missions: to educate students and to create knowledge. This latter mission involves the production of original scholarship and research. Accordingly it is accompanied by an enormous respect for proper recognition being given to the creator of those ideas and knowledge. In higher education, it is considered a grave act to take another’s work without permission or attribution. At NYU, which also has large and renowned programs in the arts, this respect extends to the creation of new art.

Few in this community would uphold shoplifting CDs from a record store. And few would be content to see their own work—a paper, for instance, or a journal article, or a term project in a course—taken by someone else and used without permission.

Yet, in reality, that is what you do when you download copyrighted files illegally. …

What a coincidence: that’s exactly the same analogy Hilary Rosen (the former head of the RIAA) used to offer when talking on college campuses, and it makes no more sense now than it did when Rosen first tried it. Copying is not like shoplifting (when you copy a song, the original doesn’t go missing), and it’s not like presenting others’ work as your own, either. But if McMillan had stuck to the real issue and said “Few in this community would support post-publication sharing of other people’s papers and journal articles…”, well, she might have found some of her own faculty disagreeing with her: for example, the ones who support Science Commons, the Public Library of Science, and other academic organizations devoted to the idea that sharing knowledge is a good idea.

McMillan ends with this zinger:

The Internet has brought unimaginable access to information and extraordinary flexibility and opportunities for exploration and communication. NYU wants you to take advantage of all that. But, just as you abide by certain standards of behavior for scholarship and for University life, so, too, should you abide by high standards when it comes to the intellectual property of others on the Internet.

Is it too much to ask that a university stand for the spread of knowledge and culture, and that university officials distinguish between crediting and copying? Unfortunately, McMillan is not alone in believing that the prevention of sharing is part of a university’s mission. Consider proposed Amendment 2314 to the U.S. Senate Higher Education Act of 2007 (S. 1462). It would require institutions of higher education to monitor file-sharing, report to the Secretary of Education, and “provide evidence to the Secretary that the institution has developed a plan for implementing a technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property.”

If you’re a student or faculty member at NYU, please consider writing to Associate Provost McMillan, or pointing her to this article.

Portait of Rick Falkvinge

We had the pleasure of bringing Rick Falkvinge, founder of Sweden’s Pirate Party, on a U.S. West Coast tour in late July and early August, to talk about copyright reform and civil liberties. The Pirate Party is a political party based on radical copyright and patent reform, and it’s started to have an electoral impact in Sweden (see an early 2008 update).

While he was here, CNET News did an interview with him.

Videos of his talks are now available:

  • Keynote speech at OSCON, the O’Reilly Open Source Conference (15 minutes), Thursday, 27 July. Note the audience member coming up to the stage right afterwards to press a campaign contribution into Rick’s hands!

  • Stanford University (79 minutes), Tuesday, 31 July (or click here for audio only). This was a particularly good talk, because the audience had excellent questions.

  • Tech Talk at Google (55 minutes), Tuesday, 31 July. A full presentation of the Pirate Party’s platform and strategy

  • Berkeley CyberSalon (audio only), Sunday, 29 July. A panel discussion entitled “Copyright Reconsidered”, with Rick Falkvinge, Anthony Falzone, Mary Hodder, Fred von Lohmann, myself, and Jeff Ubois as moderator.

The article Publishing Renaissance by Allison Randal, over at the O’Reilly Radar, is a fascinating read. She describes how her press was able to publish its first book — helpfully, she gives actual numbers:

Print-on-demand technology allows individual books to be printed as they’re ordered, and shipped directly to the purchaser. The technology has developed to the point that the quality of a print-on-demand book is equal to the quality of a traditional printed book. This style of publishing is cheap. You generally pay a small set up fee, and then have no other expenses until the book actually sells, and then only pay for the printing. (The printing cost is about $1 per copy higher than a traditional printer at high volume, and cheaper than a traditional printer at low volume.) It cost me well under my goal of $1k to produce Gravitas from start to finish. With all this power at their fingertips, publishers could experiment much more freely with low risk.

She’s very clear on the point that the advantages publishers bring are in marketing and distribution. She also remarks on the larger pattern here:

We’re already seeing a democratization of online media, where blogs and wikis grow to be more frequent sources of information than “professional” media companies. It’s good to see a similar process in more durable media.

Further evidence, I think, that the separation of creation from distribution is really beginning to settle in…

Author-Endorsed Mark

This article is now superseded by The Creator-Endorsed Mark; please see there instead.

Imagine if when you obtained a book (or a song or a movie), you could know whether or not the way you obtained it was explicitly endorsed by its author. Could you use that information to make better choices?

I think so. Here’s a scenario: you walk into your local copy shop and ask for a book you saw recommended on someone’s blog. Machines to print books on demand are already here (see the Bookmobile, for example), so let’s assume that printing up a book at a copy shop is a reasonable thing to do.

Under the current copyright system, the copy shop must have permission from the copyright holder to print the book for you. One way for them to get permission is to work out bulk deals with publishers, so that every time the shop prints a book, a certain percentage goes to the publisher (and then a percentage of that goes to the author). Another possibility is for copy shops to become publishers themselves, bypassing the traditional publishers and working out deals with authors directly.

But many other arrangements are possible, and as more and more information moves onto the Internet, we can’t predict what all such arrangements might look like, nor should we try. What we really need is a flexible framework in which authors and readers can experiment with different models, without being forced into distribution systems that are more restrictive than either party actually wants.

For example, some authors might prefer an approach that takes into account the fact that readers differ in price sensitivity. For such authors, a better arrangement with the copy shop would be to simply set a suggested donation. The shop tells the customer what the author’s suggested amount is, and the customer can include it in the final price, or increase it, or decrease it, depending on her needs and resources (the copy shop’s own copying fee sets the “floor” for the price the customer pays). The copy shop accumulates the donations and sends them in to the author by whatever means the two arrange, most likely an intermediary service.

Is this the best possible system for all creative works? Maybe, maybe not. The point is that it would be good for such experimentation to be not only possible, but easy. In that spirit, here’s a proposal for enabling experimentation.

The Author-Endorsed Mark would be a single trademarked certification symbol that anyone can use to certify their distribution of a work, if the author (copyright holder) has given them permission to do so. In other words, the author is the licensor of the mark, and the distributor is the licensee. An author would allow use of the mark in order to say “These terms of distribution have been endorsed by the author of this work.”. Someone can still distribute the work without meeting those terms, but they can only display the mark if they meet the terms. The point is to provide information, instead of imposing restraints: the purpose of the mark is to allow recipients to know what channels and methods of distribution are endorsed by an artist, yet not restrict everyone to using just those channels (unlike current copyright law).

Currently, by contrast, we have a system in which recipients never have to think about the difference between an author-endorsed channel and a non-endorsed — but still legal — channel. Although this distinction could exist in theory, in practice we rarely get to choose. Instead, most channels are both legal and (implicitly) endorsed, since distributors must negotiate with copyright holders in order to distribute.

It doesn’t have to be like this, and some artists would actually prefer a more relaxed way. Instead of being forced accomplices in a system that shuts down anyone who hasn’t negotiated with them or their representatives, what if artists could offer audiences a way to merely distinguish between endorsed and non-endorsed distributions, and then let the audiences make their own choice? “Non-endorsed” needn’t mean “illegal”, it would simply mean that distributor has not met the author’s preferences, and therefore may not use the Author-Endorsed Mark. If there’s just one mark that everyone uses for this purpose, some percentage of people will learn to look for it, just as a percentage of people have learned to look for the organic certification symbol when shopping for food.

Artists’ preferences don’t have to be about money, either. Earlier, I used a suggested donation amount as an example of a preference, but it could just as easily have been quality of paper, or print resolution, or the presence or absence of advertising on a DVD, or various combinations thereof. The Author-Endorsed Mark is an experimentation enabler: it gives artists a tool to encourage some actions without prohibiting others. Some purchasers will follow the artist’s preferences, but others will try out different arrangements — arrangements that might unexpectedly please or benefit the artist. Instead of everyone being forced to act more or less in lockstep, the way they are today, we could open up the floodgates to a real diversity of systems, while still giving people the ability to make informed choices among those systems.

During a discussion of this proposal, Brian Fitzpatrick pointed out that it might be useful to have a “negative” version of the mark: a symbol you can (or must?) use when distributing something in a way that you don’t know is in accord with the author’s wishes. I think that’s a neat idea: it forces everyone involved in the transaction to be positively aware of the choices they’re making, but without preventing the transaction itself.

That might just be the great lesson of the Internet: information beats control, every time.

(Translations: 中文)

Portait of Jacob Tummon

Today the Vancouver Sun published an editorial by Jacob Tummon entitled “The Case for the Death of Copyright”. Tummon is already known to readers here for his in-depth piece on copyright at While this editorial is necessarily shorter and less detailed than that earlier piece, it still makes a strong case. Tummon is a law school graduate, and he makes the excellent point that unenforceable laws inevitably lead to disrespect for the law itself: “Canada has experience with laws that engender widespread violation: Consider prohibition in the 1920s. A law violated so brazenly is more than meaningless — it undermines the effectiveness of the legal system generally.” Bravo to the Vancouver Sun for giving space to these ideas.

Here’s the full editorial, reprinted with Jacob Tummon’s permission…

The Case for the Death of Copyright

It has been said that intellectual property law has an unfortunate tendency to “disable critical thought.”

Nowhere is this more apparent than the reasons proffered for copyright in the Internet age, including the refrain that “copying is tantamount to stealing.” That flatly is not the case.

The morality, economics, and practicality of laws dealing with physical property do not hold for the intangible works covered by copyright. With finite physical property, scarcity is inescapable; with digital representations, scarcity does not apply. It is therefore not surprising that reasoning premised on this false analogy yields a law not in the best interests of content creators (“content creator” means artists, musicians, writers and so forth.)

The ostensible justification for copyright is that it provides attribution to the original creator and serves as an economic incentive for creators who can license the use of their work to make money, provided someone is willing to pay.

The latter point deserves careful scrutiny as the vast majority of creators do not earn meaningful incomes through copyright. Moreover, there are viable models for creators to earn income from their work which do not depend on copyright. Sponsorships, ticket sales, T-shirt sales and commissioned works are obvious longstanding examples.

Canadian musician Jane Siberry offers her music on her website using a “pay what you can” system, but a guideline shows the average price customers have paid per track. The result is an average price higher than what one would pay through iTunes. There are also similarly clever business models for novelists.

Embedding advertising or product placement within a TV show or movie is another viable means to pay for content. Budweiser produces its own TV-type shows on its website Bud.TV. Budweiser’s motive is worth noting for its prescient thinking: “If we don’t start playing in this digital game now we’re going to be playing catch-up for a long time. And this is an industry that can’t afford catch-up,” explained Tony Ponturo, Anheuser-Busch’s vice-president of global media and sports marketing.

Nor is proper attribution dependent on copyright. Tort law, through causes of actions like defamation and passing-off, could be wielded to prevent someone other than the original creator from claiming authorship, and also the original creator being credited with an altered version of the work. Incidentally, plagiarism in an academic setting is currently enforced independently of copyright.

Trademarks and patents are other areas of intellectual property that do not depend on copyright and would continue to exist in the absence of copyright.

That copyright isn’t needed for attribution or economic incentive is not the whole story. There is a body of work, in all areas covered by copyright, which requires the elimination of copyright to flourish. DJ’s making mixed tapes is a simple example.

Consider, with the means available through modern software, the splicing of video to say nothing of novels; a freeing from the constraints of copyright would invariably lead to an explosion of works being altered, transformed, improved, and ultimately morphed into new works.

The lack of such creative works is a not insignificant cost of copyright. This repressing effect can be damaging to the promotion of political and social expression and greater productivity.

Copyright was originally created as a means for government to exercise censorship after the advent of the movable type printing press. Given this origin it is not surprising that copyright is not intellectually coherent.

Stephen Breyer, now a judge on the U.S. Supreme Court, wrote as an academic in the 1970s on the weak case for copyright, asking why the work covered by copyright should be treated differently than other actions that produce value far beyond what they get remuneration for, i.e. the person who invents the supermarket, the person who clears a swamp, a schoolteacher.

The truth is that copyright has traditionally, and to this day, served primarily the publisher’s interest and not that of the creator or the public — it is not derived from natural justice.

Irrespective of moral and economic dimensions, the deathblow to copyright will likely come from the Internet itself. Due to the nature of the Internet, and anonymizing technologies in particular, the practicality of attempting to enforce a pre-internet copyright regime through the Internet is a road that we as a society should not go down.

Canada has experience with laws that engender widespread violation: Consider prohibition in the 1920s. A law violated so brazenly is more than meaningless — it undermines the effectiveness of the legal system generally.

Over time, the Internet will increasingly expose constraints on text, pictures, and videos for what they are — arbitrary and outmoded. In the meantime, it makes sense for Canada not to pass copyright laws that are more restrictive and invasive.

Jacob Tummon is a recent graduate of the University of British Columbia’s faculty of law.