Question Copyright

Why is free so hard?

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

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

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

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

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

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

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

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

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

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

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

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

Best,
-Karl

 

Yesterday, we lost one of the smartest, most politically aware, and most dedicated advocates for freedom we have had so far in the Internet age; we also lost a truly engaged, honest, and fundamentally good-hearted young person, who was unfairly hounded by U.S. federal prosecutors for a non-crime (in fact, an act intended as a service) that they have misrepresented throughout their prosecution.

Aaron Swartz took his own life yesterday, at the age of 26.  He was facing multiple felony charges; if convicted he could have gone to jail for thirty-five years, and owed over a million dollars in fines.  His “crime” was that he downloaded too many articles from JSTOR, an online service providing access to academic articles.  He downloaded more articles than JSTOR’s terms of service allowed, therefore he was in violation of their terms of service, therefore (according to the prosecution’s interpretation) he violated the Computer Fraud and Abuse Act.  JSTOR themselves were not interested in pressing charges — this was federal prosecutors deciding to make an example.  Now they have unintentionally succeeded, tragically and in a way that I hope, for the sake of their own souls, they never anticipated.  Stubbornly, and characteristically, Aaron was unwilling to take a plea deal and be labeled a “felon” when he had done nothing wrong; he insisted on pleading not guilty.  At this point, with JSTOR not cooperating, the defendant clearly feeling sincerely innocent, and a great many people already publicly defending Aaron, the prosecution team should have taken a step back and asked themselves “Why do we need a kid to go to jail for most of the rest of his life for something that’s not even wrong enough for the supposed victim to want to press charges?  What good would it serve?”  Instead, they utterly failed to understand Aaron’s well-articulated position on freedom of information, failed to see that making copies of articles from an academic service is not a property rights issue nor should even be a criminal matter, failed to consider that sending a young man to jail until he’s past sixty just to make an example — a pointless example, at that — would be profoundly immoral.

There are many remembrances already on the Internet, but two in particular stand out: Rick Perlstein’s and Lawrence Lessig’s.  Both are personal remembrances, but both make the point (Rick even more directly in a separate Facebook post) that it would be a mistake to reflexively pathologize this and blame it simply on Aaron’s occasional depression.  In Rick’s words, from a Facebook conversation: “I would downplay the depression angle. The big piece he wrote about his depression came when he was 17. When I talked to him about my own depression a year ago, he really didn’t respond as a fellow-traveler. I can’t say precisely, but I don’t think it was a huge part of his life. Having his soul gnarled down to a nub by a Javert had much more to do with it, I think.”  You’d be depressed too if the might of the U.S. federal judicial system seemed dedicated to sending you to jail for most of your life over an essentially altruistic act that harmed no one.  I can’t read Aaron’s mind and don’t know what he was thinking, but the relentlessness of that system bearing down on him was there, every day, with no sign of respite.  Whether one is prone to depression or not, that’s a hard, hard road.  And your friends and allies may defend you till they’re blue in the face, but they’re not going to be there in the jail cell with you.

Lessig was a close friend of and a defender of Aaron, and his post shows his justified anger now.  With both respect and sympathy, I still think it’s important to disagree with one small portion of what he said: “…if what the government alleged was true … then what he did was wrong. And if not legally wrong, then at least morally wrong. The causes that Aaron fought for are my causes too. But as much as I respect those who disagree with me about this, these means are not mine.”

As we wrote here when he was charged, Aaron didn’t do anything wrong.  He made copies of articles that were not confidential, that are now publicly accessible anyway, and all indications are that he was doing so for altruistic purposes.  He did engage in some subterfuge, to work around barriers to access, but there’s a good argument to be made (no doubt the courts would not have permitted him to make it) that this was justified, or at least defensible.  Lessig has this one thing precisely backwards: what Aaron did was not morally wrong at all; it may have been legally wrong, though even that’s not clear.  (Peter Sunde’s touching post about Aaron, which I only saw after writing the rest of this, makes the same point.)  At least some of the federal charges rely on an overly broad interpretation of the Computer Fraud and Abuse Act that essentially outsources key determinations to private web site operators’ Terms of Service agreements, thus criminalizing matters that should be purely in the domain of civil law.  Again, note that JSTOR refused to press civil charges.  If you want to understand in more technical detail what Aaron did and the context in which he did it, read Alex Stamos’ excellent post: The Truth About Aaron Swartz’s “Crime”.  And for a broader understanding of Aaron’s work, you really should read Tim Carmody’s amazing piece “Memory to myth: tracing Aaron Swartz through the 21st century”.

No one’s life should be reduced to a symbol for a cause.  Aaron was a truly engaging person, loved by many, and as serious as one could be about living life with a purpose.  We first met during a trip to Europe in the winter of 2006-2007, where we ran into each other in the same cities (Berlin, Stockholm) — not as much of a coincidence as it sounds, as we were there for some of the same reasons: to meet with some free culture activists in Europe, as well as just have a good time on the road, and he was traveling with a group of friends some of whom I knew as well.  One night we were all staying in the same room (in the apartment of a generous fellow traveler, in the other sense of the word “traveler”) talking, and I happened to catch a glimpse of what Aaron had packed for his trip to Europe.  He was 19 or at most 20 at the time.  His bag must have been three-quarters full of books — serious, hardcover books on history, politics, science, economics, and many other topics.  I remarked on this, and to hear him explain it you would think it was the most natural thing in the world to pack only a few changes of clothes but enough reading material to run several simultaneous in-depth academic seminars.  Subsequent conversations, then and later back in the U.S., made it clear that this was no affectation: he had brought the books because this was a chance to read, and he loved learning.  He was really reading them, too, and was happy to talk about them.  I didn’t give him enough credit in the first couple of conversations; his well-deserved intellectual reputation preceded him, but I didn’t understand how much he could already know and think at 19.  I soon corrected that mistake.  His observations could be sharp and probing, but what stood out for me was his conversational maturity.  The stereotype of the young hotshot is that he has to win every argument — Aaron didn’t, and in fact he was an excellent, attentive listener as well as having interesting things to say and, yes, brilliantly holding the floor when it was appropriate to do so.  As much as any of his many accomplishments, or his substantial intellectual gifts, it was this self-imposed maturity that I found most impressive.  He already knew what he believed in, and that he had the ability to get things done for the causes he made his own.  What probably took real work was making himself able to appreciate and learn from and collaborate with those less talented or less knowledgeable than himself — which is just about all of us — and he succeeded.  He did it.  He became (or perhaps always was, and just had to grow into it) a mensch, someone any of his friends, colleagues, and fellow travelers were glad to see and talk with at any time.  And now he’s gone.  He will not be forgotten.

Update: many moving tributes are now being collected at rememberaaronsw.com, and the Internet Archive has started the Aaron Swartz Collection to form a permanent online digital archive of Aaron’s life and work; if you have emails, photos, video, or audio of Aaron, please contribute it there.

Y’all aware of the good work that unglue.it is doing?

Unglue.it has a very simple mission: to free digital books.  Their method is simple too: get people to chip in money (crowdfunding style), then pay the rightsholder to release the book in digital form under a liberal license.  The crowdfunding method is the same threshold pledge system that Kickstarter uses: pledgers only pay if the campaign succeeds.

Unglue.it will allow the rights holder to choose a non-free license that limits commercial use or derivative works, but at a minimum unglued works always get at least verbatim copyability.  And as it happens, their most recent success, Oral Literature in Africa,was released under a truly free license, the Creative Commons Attribution license.  The amount of freedom in the world has strictly gone up, thanks to their campaign, and a good work has been liberated.  Here it is, if you want to grab a copy!

For a while, everything fell apart because Amazon decided it couldn’t allow the crowdfunding model anymore.  But the folks at Unglue.it are pretty persistent, and they started looking at other payment processors.  (By the way, Eric Hellman’s post on choosing a crowdfunding payment processor for Unglue.it is a great summary of the options out there.)  They eventually solved the problem, and they’re back in business.

So: what do you want liberated next?

This proposal is a rewrite of one we first ran five years ago here at QCO. Since then, meaningful copyright (and patent) reform proposals have gradually been gaining ground. You know you’re making progress when someone gets fired from the U.S. Republican Study Committee for writing a policy brief that speaks sanely about copyright. Because the policy climate is changing, we’re re-introducing our proposal (cross-posted at Falkvinge on Infopolicy and the Center for the Study of Innovative Freedom) with an updated and clarified explanation. For many readers, it still won’t go far enough — it’s not abolition, for example. But proposals like this succeed first by reframing debate. In this case, the point is that if a government is going to offer private monopolies at all, it should at least reserve the public a way to ease them.

What would a truly free-market approach to copyrights and patents look like?

The problem we have right now is this:

The flat green line represents the value to the public of de-monopolizing the work — think of it as “what the public would be willing to pay for unrestricted access”. The point where the curved blue slope crosses the green line is the point where there is no longer any public or private purpose to having a monopoly. From that moment on, the value of the monopoly to the rights-owner is equal to or less than the value of de-monopolization. Yet today, the monopoly continues beyond that point. The green line is simply ignored in the current system: we pretend it does not exist.

You might think there’s already a market solution. After all, in the current system, anyone could in theory be offered a fixed sum to liberate their work into the public domain [1]. But markets don’t quite work the way we’d hope. This is is why we have eminent domain in real property, for example. As soon as someone starts talking about building an airport in some farm fields, all of a sudden every farmer decides their field is worth ten times as much as it was the day before, such that no airports could ever be built if we did not use the pre-rumor valuations. It is the same with copyrights and patents: the mere expression of interest in re-use drives up the price instantly, and the perpetual optimism of rights-holders ends up stretching their monopoly past its natural market end — hurting everyone else and preventing further re-use, yet frequently without realizing the benefit the rights-holder hoped for. We all lose.

But unlike with land, there’s a way out, because there’s a third thing we can do besides sell or not sell: we can liberate. That makes all the difference.

Finding The Liberation Point

Suppose things worked this way instead — I’ll use copyrights for the sake of discussion, but this applies to patents too:

A new work gets an initial automatic copyright term, as it does today but perhaps shorter: maybe a few months from publication, enough to ensure there’s time for the owner to register the work if they wish to extend the monopoly.

If the copyright owner does not register, the work simply enters the public domain [2].

If the copyright owner registers, then the copyright continues. Registration, which is renewable annually, requires paying a registration fee that is proportional to the current self-declared value of the work. That is, the copyright owner picks a number of dollars (yuan, euros, whatever) that she claims the work is worth. It can be any number at all, but the yearly registration fee will be a percentage of it — for discussion’s sake, say 1%. The exact proportions don’t matter here: it could be 0.5% or 2% instead of 1%, registration could be semi-yearly instead of yearly, etc. The idea is the same, regardless of how you set the knobs.

Now comes the key:

Since that declared value is now a matter of public record, anyone can pay that amount to the copyright owner to liberate the work into the public domain. This is not a purchase, it is a liberation. Prior to liberation — whether it comes through payment or through term expiration — people would still be free to sell or lease their copyrights, for whatever price they can get (which, interestingly, may be higher or lower than the registered value — the market dynamics behind that decision are just as rich as those involved in determining exclusivity value under today’s copyright system). But whoever the owner is, whether the author or someone else, they’re responsible for keeping up the registration. And while the work is still under registration, anyone can come along and pay the registered owner the declared value to liberate it.

Liberation, unlike purchase or lease, is a mandatory transaction. The justification is that since the registrant chose the price in the first place, it is by definition fair: it was self-declared. Furthermore, these are after all public monopolies, and the public’s ultimate interest is in having works be available without restriction. For governments to hand out monopolies with no escape clause has always been an abdication of responsibility. If there is a way to fix that, we should take it.

The copyright holder has an incentive not to declare too high a value, because she’ll have to pay a percentage of it to register; she has an incentive not to declare too low, because then someone will come along and liberate the work very quickly at a low price (though some artists will find that liberation is economically a better deal for them anyway, and simply not register, or register at a declared value of zero in order to get a timestamp for attribution purposes).

Because the value of a work may change over time, the registrant may adjust the declared value up or down each year when renewing the registration [3]. This is also one of the reasons behind that brief initial registration-free monopoly term: it gives the copyright holder a chance to judge the work’s monopoly value, information she can use to decide how much to register the work for.

Whether indefinite renewal should be available is an open question. Personally I think not, for two reasons: first, because there has simply never been a compelling argument for perpetual copyright and most jurisdictions do not have it. Second, because awareness of an approaching horizon will pressure registrants to set lower liberation prices as that horizon comes closer — which is the right direction for things to move, from the public’s point of view, since even the most confident authors cannot reliably predict years ahead of time which monopolies will remain valuable, and therefore far-future valuations do not have a significant incentivizing effect anyway.

But even if indefinite renewal were permitted, the system still has desirable effects. The tendency of monopolies to accumulate in media conglomerates (who then press for Internet censorship to preserve those monopolies) would be greatly lessened by the cost of maintaining all those registrations. Forced to choose which assets are really valuable, the companies would have to lower the liberation values for many works, thus providing the fertile ground for re-use and innovation that artists, other publishers, and the rest of us are denied under the current system.

On “Balance”

While this proposal is a compromise, it’s at least a compromise tilted toward the public interest. By analogy, think of a homeowner who cuts a driveway opening onto a public street in order to gain access to a private garage. If I take a streetside parking space away from the public, I expect to pay the city (that is, the public) a fee, and usually annually, too, not just a one-time fee. Similarly, a copyright owner who wants to keep a work out of the public domain should pay for that privilege. But unlike a garage, this privilege need not be permanent, because losing monopoly control over a work is not as serious as losing one’s indoor parking space.

This system would go a long way toward alleviating the orphan works problem, by ensuring that the copyright owner of a work could always be found (someone must be paying the fees over at the registry), and toward alleviating the ghost works problem (in which derivative works are suppressed), by setting a maximum amount of money that, in the age of Kickstarter, would usually still be attainable by a motivated party who wanted to see that work in the public domain.

The copyright lobby frequently talks of finding an appropriate “balance” between the needs of creators and the needs of the public. Like many appeals to balance, it is a smokescreen for something else: in this case, for efforts to increase copyright terms and restrictions beyond their already absurd lengths. The “balance” they’re talking about neatly presupposes that creators and the public are somehow on opposite sides, while multinational content monopoly conglomerates are, curiously, absent from the picture altogether. (Their portrayal is also historically suspect, as copyright was primarily designed to subsidize distributors not creators anyway.)

Thanks to this focus on exclusivity-based balance, proposals to improve the system are usually minor tweaks: broader “fair use” rights, a more thorough prior-art discovery process, various changes in scope, etc. But these approaches leave the basic problem untouched: when a copyright or patent is granted today, it creates a monopoly with no countervailing pressure towards a true free market.

There needs to be a market-based representation of the value of de-monopolization, expressible by those whom de-monopolization benefits. In Macaulay’s famous words, “the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad.” [4] Anyone familiar with, for example, the mess George Lucas made of his monopoly on the “Star Wars” movies will instantly see Macaulay’s point. The problem is not that Lucas botched the sequels, but that the Lucasfilm monopoly prevents anyone else from doing better. This is the problem with monopolies generally — it’s not what they let the monopoly owner do, it’s what they don’t let others do. Monopolies are the opposite of free markets.

The Liberation Point system introduces de-monopolization as a market force, without involving the government in pricing decisions, term-length calibrations, or other arbitrary regulatory judgements [5]. The system takes “balance” seriously: it gives the rights-holder a decisive role in setting a valuation and benefitting from it, but at the same time represents the public’s interest in not having works monopolized forever. Crucially, it avoids the need for complicated regulatory formulas, which would inevitably create a target surface for monopoly interests to aim lobbying power at. Instead, it gives the public a mechanism for representing its own interests directly, with the government limited to a bookkeeping role.

The proposal is not merely rhetorical. I would be delighted, if surprised, for it to receive legislative interest. But it is also meant to expand the range of the possible. Fiddling with copyright term lengths and improving the Patent Office’s processes feel good, but they are fundamentally repainting a burning barn. To get lasting improvement, we need to permanently reduce the “lobbyability” of the system as a whole. The Liberation Point method is one way to do that [6], and to show that market-tempered monopoly is possible in principle. It’s high time these kinds of solutions were on the table.

References:

[1] The term “public domain” is used informally here. It is a term of art in copyright law more than in patent law, but it is easy to intuitively understand what it would mean for patents: that no one has a monopoly, that is, there is no one with the power to restrict usage.

[2] There should be nothing shocking about this: the public domain is the natural destination for works, and even most proponents of lengthening copyright and patent terms pay lip service to that goal. Furthermore, registration requirements used to be the norm if one wanted to hold any public monopoly. Indeed, the requirement for copyrights was only eliminated under the theory that insisting on registration gave advantage to corporations who had economies of scale to streamline the paperwork involved in filing — which was probably true, in the days before the Internet, but today registration would be as easy as uploading a file and receiving a digitally-signed timestamp.

[3] Alternatively, the owner could be allowed to adjust the declared value at any time (perhaps even as a reaction to liberation offers), with the provision that any upward adjustment would require immediate payment of the difference between the old and new registration fees. However, the public domain would probably be better served by simply allowing adjustment only at fixed intervals: if the owner of a work can’t figure out its market value and set the fee accordingly, that is no reason to favor the owner over the public when the work is being liberated at a price the owner clearly once thought sufficient.

[4] en.wikisource.org/wiki/Copyright_Law_(Macaulay)

[5] One of the problems with not having a systematized and predictable path to de-monopolization is that we instead get unpredictable decisions like India’s decision to set a compulsory license rate on a drug still under patent. The point is not that the Indian government made a mistake — the decision was quite defensible — but that handling each such instance as a special case inevitably leads to lack of predictability and, eventually, to corruption. Yet it’s governments that issue patent monopolies in the first place: if they can set compulsory license rates in specific cases, then they can offer a mechanism for de-monopolization in the general case.

[6] My colleague Nina Paley has suggested a simpler system: bring back registration, and set the fee for the first year at $1, the second year at $2, the third year at $4, then $8, $16, $32, $64, and so on. This has the advantage of immediate comprehensibility, and it’s clearly effective at tempering the monopoly: very few works would remain restricted past the 20 year mark, and her system doesn’t need to be adjusted for inflation for a long time.

[7] For works released under a free license, the fee should be waived, and indeed the requirement to register or renew at all should be waived, because such licenses are non-monopolistic by definition. For simplicity’s sake I did not mention this in the original proposal. Richard Stallman immediately noticed the problem; I thank him for pointing it out, as that reminded me to add this footnote.

You landed on this page because you didn’t do anything wrong.

So, breathe.  Sit up straight :-).  You’re fine.

You didn’t do anything wrong.

You copied something.  Maybe it was a song, or a video, or some text.  All you did was make a copy of it.  You didn’t steal anything, you didn’t take false credit, you didn’t intercept or dilute money that belongs to someone else.  All you did was copy.  You took part in a ritual as old as the human race: the act of sharing a piece of culture or information.

Some people may try to make you feel bad about what you did.  They’ll tell you that by copying something, you took money out of the pocket of an artist (but you know you didn’t — in fact, you probably helped the artist by spreading their work).  They’ll call it “piracy”, as though making copies of things is somehow like board a ship on the high seas, stealing its cargo, and doing who-knows-what with the crew.  They’ll tell you that what you did is analogous to counterfeiting money (it’s not).  They might claim to you that the whole purpose of copyright is to supposed to be to provide artists with a stable income, even though that’s not why copyright was invented, copyright is not how most artists earn their livings anyway, and overall it probably does more harm to artists than it does good.

When these people tell you you’ve done something wrong, they’re asking you to help support a myth, but you’re under no obligation to go along.  In fact, we’d appreciate it if you’d point them to this page.

So don’t buy it.

We don’t mean “don’t buy the song”, of course.  You should absolutely buy the song (or movie, or CD or DVD) if you want to — though if you really want to support the artist, it’s often more efficient to just send them money, because that way there’s no monopoly-based organization in the middle skimming most of your support away (naturally, if you feel the intermediary is doing good work, then support them too; many publishers are providing a valuable service).  It might be that the copying you did, or contemplated doing, is illegal in the country where you did it — a lot of countries have laws against copying.  We encourage you to obey the laws in your jurisdiction.  We just mean don’t buy the argument.  Don’t give those laws authority over your emotions.  If you’ve copied something, don’t feel guilty.  You didn’t do anything wrong.

There are many practical and philosophical reasons for obeying a law you don’t agree with, but there is never a reason to feel guilty about breaking a law you don’t agree with.  If you broke a law against copying publicly-available data, and someone’s trying to make you feel bad about that, then send them here, or at least ask them to make a rigorous case for what they’re claiming.

Can they justify the position that humans shouldn’t be allowed to share culture freely?  If they’re saying that the economic concerns for artists are so great as to trump the serious civil liberties concerns with this position, do they have actual numbers to back that up?  Have they talked to the artists who have been hurt by copyright restrictions?  The translators who couldn’t translate because the law wouldn’t allow them to?  The teachers who couldn’t teach the material they needed?  The publishers and distributors who couldn’t bring great books and films to audiences?

Copying is not wrong, and you didn’t do anything wrong.  So don’t feel bad — just spread the word.

If you’d like to support Nina Paley’s work on her upcoming freely-licensed film Seder-Masochism, you can donate via the Question Copyright Artist-in-Residence Working Fund. Let me repeat that word for emphasis: “donate”. There.

(Donations are tax-deductible to the full extent permitted by law; see here for details.)

Nina’s trailer for Seder-Masochism has already received over 400,000 views on various video hosting sites (Internet Archive, Vimeo, YouKu, YouTube), and was written up in Ha’aretz yesterday. People who saw our tweet (yes, that’s a hint to retweet or redent) have have already started donating to the Working Fund. We encourage everyone who likes high-quality, free-licensed films to join the club!