Google has just posted that it’s going to start defending some YouTube videos from DMCA takedown notices when it believes that those videos are protected by the Fair Use exemption from copyright law.
This is great news and long overdue.
The Digital Millennium Copyright Act of 1998 lets a copyright holder send a notice to a site like YouTube claiming that a video violates its copyright. YouTube passes that notice on to the video poster and takes down the video. The poster can enter into a legal battle with the copyright holder which is rarely worth the time and money even if the poster is totally within her rights.
As a result, Big Content sends YouTube thousands of takedown notices that are generated algorithmically, without a human ever looking at the video to see if it is actually a violation. Since there’s no practical penalty for sending in a groundless takedown notice, Big Content has a “When in doubt, take it out” attitude.
But you usually can’t tell if a video falls under the Fair Use exemption without looking at it. Fair Use exempts material from claims of copyright infringement if the material is satire, if it’s citing the original in a review, for some educational purposes, etc. Fair Use is just plain common sense. Without it, you’d have to get Donald Trump’s permission to mem-ify one of his quotes.
Now Google seems ready to step forward and champion Fair Use in other realms. It’s hard to see how this benefits Google directly — they’ll be spending legal fees to keep some person’s video up, even as 400 hours of video is uploaded to YouTube every minute. But creating a Fair Use speed bump in the automatic and robotic cleansing of the Net is great for the ecosystem, which is great for us and ultimately for companies like Google that rely on the Internet remaining a robust domain of discourse and creativity.
The public can view them, copy them, and reuse them freely in every regard. An article in Quartz by Anne Quito reports:
So far, these images, which range from Restoration-era cartoons to colonial explorers’ early photographs, have been used on rugs, album covers, gift tags, a mapping project, and an art installation at the Burning Man festival in Nevada, among other things.
The Library posted them not only so they could be enjoyed and reused, but so the public would do what the Library is not staffed to do all by itself: add tags. Says Quartz:
to date, the collection has garnered over 267 million views, and over 400,000 tags have been added to images on Flickr by users. Through a “tagathon” with the Wikimedia UK community, the Library discovered over 50,000 maps in the collection, which they are now in the process of fitting into a modern map.
I can’t figure out how to search within a collection at Flickr, but this view at least does some clustering.
There are exceptions and exemptions, but it overall it is symptomatic of government’s prioritizing private business interests over public learning.
David S. Landes’ fascinating book, Revolution in Time, mentions an early case of DRM and an attempt at an anti-circumvention policy (pp. 172-5). It is literally a case: a watch case.
As Landes tells it, at the end of the 18th century, the most noted pioneering clockmaker was John Arnold. Arnold, the son of a watchmaker, rose rapidly, even presenting King George III in 1764 with a clock so small that it fit into a ring. But from around 1781, he began to run into a young upstart named Thomas Earnshaw. Earnshaw had invented a spring detent escapement (illustration) that proved to work better than Arnold’s, and would eventually replace it.
Arnold introduced a spring detent remarkably like Earnshaw’s remarkably soon after the latter introduced his, leading Earnshaw to think that Arnold had copied one of his early models. There were means, motive, and opportunity, for Earnshaw had been forced to disclose his innovation in order to try to raise the hundred pounds required to patent it. One of the people he showed it to was Thomas Wright, watchmaker to the King. Arnold had asked Wright for access to one of these prototype models on the grounds that Arnold had already applied for his own patent. Wright provided it.
When Earnshaw heard of this, he was furious. Wright defended himself by saying that he had not given Arnold permission to open the watch and had protested when he did: “Mr. Arnold, I will not have the watch opened.” To which Arnold had haughtily replied by asking if anyone in Wright’s shop knew how to make a watch anyway and then answered his own question by saying that “so far from being able to make a watch, none of them knew what o’clock it was.” This insolence was enough to provoke even a theeing-thying Quaker. “Mr. Arnold,” said Mr. Wright, “it does not signify whether I can make a watch or not, I don’t fear getting plenty of employee at mending thine, and if the watchmakers do not know what o’clock it is they can know by going to Greenwich for it as thee does.”
Nothing like #QuakersTalkingSmack.
In any case, it’s a new millennium and time for a copyright act suited for that new millennium.
Secretary of State John Kerry gave a speech in Seoul yesterday about the Internet, setting out five principles of cybersecurity.
The talk is quite enthusiastic and progressive about the Net. Sort of. For example, he says, “[t]he United States considers the promotion of an open and secure internet to be a key component of our foreign policy,” but he says this in support of his idea that it’s crucial to govern the Internet. On the third hand, the governance he has in mind is designed to keep the Net open to all people and all ideas. On the fourth hand, predictably, we don’t know how much structural freedom he’s willing to give up to stop the very Worst People on Earth: those who share content they do not own.
Overall, it’s a speech that we can be pretty proud of.
Here’s why he thinks the Net is important:
…to begin with, America believes – as I know you do – that the internet should be open and accessible to everyone. We believe it should be interoperable, so it can connect seamlessly across international borders. We believe people are entitled to the same rights of free expression online as they possess offline. We believe countries should work together to deter and respond effectively to online threats. And we believe digital policy should seek to fulfill the technology’s potential as a vehicle for global stability and sustained economic development; as an innovative way to enhance the transparency of governments and hold governments accountable; and also as a means for social empowerment that is also the most democratic form of public expression ever invented.
At its best, the internet is an equal-opportunity platform from which the voice of a student can have as much reach as that of a billionaire; a chief executive may be able to be out-debated by an entry-level employee – and there’s nothing wrong with that.
Great, although why he needed to add a Seinfeldian “Not that there’s anything wrong with that” is a bit concerning.
He then goes on to say that everyone’s human rights extend to online behavior, which is an important position, although it falls short of Hillary Clinton’s claim while Secretary of State that there is a universal “freedom to connect.”
He then in an odd way absolves the Internet from blame for the disruption it seems to cause:
The internet is, among many other things, an instrument of freedom. It’s a tool people resort to in response to the absence and failure or abuse of government…Anyone who blames the internet for the disorder or turmoil in today’s world is just not using their head to connect the dots correctly. And banning the internet in a misguided attempt to impose order will never succeed in quashing the universal desire for freedom.
This separates him from those who think that the Net actually gives people an idea of freedom, encourages them to speak their minds, or is anything except a passive medium. But that’s fine since in this section he’s explaining why dictators shouldn’t shut down the Net. So we can just keep the “inspires an ambition for political freedom” part quiet for now.
“The remedy for the speech that we do not like is more speech,” he says, always a good trope. But he follows it up with an emphasis on bottom-up conversation, which is refreshing: “It’s the credible voices of real people that must not only be enabled, but they need to be amplified.”
To make the point that the Net empowers all sectors of society, and thus it would be disastrous if it were disrupted globally, he suggests that we watch The Day the Earth Stood Still, which makes me think Secretary Kerry has not watched either version of that movie lately. Klaatu barada nikto, Mr. Kerry.
To enable international commerce, he opposes data localization standards, in the course of which he uses “google” as a verb. Time to up your campaign contributions, Bing.
Kerry pre-announces an international initiative to address the digital divide, “in combination with partner countries, development banks, engineers, and industry leaders.” Details to follow.
Kerry tries to position the NSA’s data collection as an enlightened policy:
Further, unlike many, we have taken steps to respect and safeguard the privacy of the citizens of other countries and to use the information that we do collect solely to address the very specific threat to the United States and to our allies. We don’t use security concerns as an excuse to suppress criticisms of our policies or to give a competitive advantage to an American company and any commercial interests at all.
You have our word on that. So, we’re good? Moving on.
Kerry acknowledges that the Telecomm Act of 1996 is obsolete, noting that “Barely anybody in 1996 was talking about data, and data transformation, and data management. It was all about telephony – the telephone.”
Finally, he gets to governance:
So this brings me to another issue that should concern us all, and that is governance – because even a technology founded on freedom needs rules to be able to flourish and work properly. We understand that. Unlike many models of government that are basically top-down, the internet allows all stakeholders – the private sector, civil society, academics, engineers, and governments – to all have seats at the table. And this multi-stakeholder approach is embodied in a myriad of institutions that each day address internet issues and help digital technology to be able to function.
“Stakeholders” get a “seat at the table”? It’s our goddamned table. And it’s more like a blanket on the ground than polished rare wood in a board room. Here’s an idea for you, World Leaders: How about if you take your stakes and get off our blanket?
Well, that felt good. Back to governing the Internet into the ground. And to be fair, Kerry seems aware of the dangers of top-down control, even if he doesn’t appreciate the benefits of bottom-up self-organization:
That’s why we have to be wary of those who claim that the system is broken or who advocate replacing it with a more centralized arrangement – where governments would have a monopoly on the decision-making. That’s dangerous. Now, I don’t know what you think, but I am confident that if we were to ask any large group of internet users anywhere in the world what their preferences are, the option “leave everything to the government” would be at the absolute bottom of the list.
Kerry now enunciates his five principles.
First, no country should conduct or knowingly support online activity that intentionally damages or impedes the use of another country’s critical infrastructure.
Second, no country should seek either to prevent emergency teams from responding to a cybersecurity incident, or allow its own teams to cause harm.
Third, no country should conduct or support cyber-enabled theft of intellectual property, trade secrets, or other confidential business information for commercial gain.
Fourth, every country should mitigate malicious cyber activity emanating from its soil, and they should do so in a transparent, accountable and cooperative way.
And fifth, every country should do what it can to help states that are victimized by a cyberattack.
Two particular points:
First, #2 establishes Internet repair teams as the medical support people in the modern battleground: you don’t fire on them.
Second, #3 gets my goat. Earlier in the talk, Sect’y Kerry said: “We understand that freedom of expression is not a license to incite imminent violence. It’s not a license to commit fraud. It’s not a license to indulge in libel, or sexually exploit children.” But the one crime that gets called out in his five principles is violating copyright or patent laws. And it’s not even aimed at other governments doing so, for it explicitly limits the prohibition to acts committed “for commercial gain.” Why the hell is protecting “IP” more important than preventing cross-border libel, doxxing or other privacy violations, organizing human trafficking, or censorship?
Oh, right. Disney. Hollywood. A completely corrupt electoral process. Got it.
Now, it’s easy to be snarky and dismissive about this speech — or any speech — by a Secretary of State about the Internet, but just consider how bad it could have been. Imagine a speech by a Secretary of State in an administration that sees the Internet primarily as a threat to security, to morals, to business as usual. There’s actually a lot to like in this talk, given its assumptions that the Net needs governments to govern it and that it’s ok to spy on everyone so long as we don’t do Bad Things with that information that we gather.
So, before you vote Republican, re-read Hillary Clinton’s two speeches  on Internet freedom.
NPR has announced that it’s making 800,000 pieces of audio embeddable anywhere you want, including on this blog:
When you browse their site you’ll find an “embed” button to the right of a story’s “Play” button. Click ‘n’ paste. (And at the bottom of the widget that you embed you’ll see a tiny, gray copyright notice.)
When Doc Searls and I published our New Clues, we put it into the public domain. Even two months later, it feels good. In fact, seeing it reprinted in its entirety on someone else’s site fills me with an irrational exuberance.
Normally we would have put it under a Creative Commons BY license that entitles anyone to reuse it in whole or in part so long as they attribute it to us. CC BY is great. It takes the “#1. Ask permission” step out of the process by which what you write can be absorbed by your culture. Or anyone’s culture.
The public domain is different. A CC-BY license keeps a work copyrighted, but permits use without first asking permission. Works in the public domain are not copyrighted. Ok, so it’s more complex than that, but that’s basically it. A work in the public domain is like a folk song: you can sing it, you can change the words, you can record it and charge for the recording, you can print the lyrics on the front of your ice cream containers. You can even claim that you wrote it, although that would be wrong of you.
In practical terms, putting New Clues into the public domain [here’s how] really doesn’t do much that CC BY doesn’t do. Yes, someone could reprint our public domain document without crediting Doc and me, but they could do that with CC BY also — we’d have the right to insist that they provide attribution, but Doc and I are likely to use moral suasion in either case, by which I mean that we’d write a polite email to the evil doer. So, pragmatically, there isn’t much difference.
So why does putting it into the public domain make me happier? I get as close to smiling as my stony visage permits when I see a site that’s copied and pasted the whole thing. It makes it feel that what Doc and I wrote was really about what it says and less about what the writing says about Doc and me. The focus is where it should be.
And it feels deeply good to know that we have created something that can spread as far and deeply into the culture — and thus into people’s lives — as our culture wants. The only barriers are those of interest. And we’re not going to try to tease you with a snippet, with a taste. Not interested? Fine. It’s still there for anyone who is.
I expressed this to Peter Suber, who is dedicated full time to expanding the sphere and influence of Open Access works. Peter pointed out that my reaction rests in part on the privileged position I occupy: I can do some writing for free, and because Doc and I are known a bit within the domain of people who blab about the Internet, there’s a disincentive for people who might want to pass off our words as our own. If we were, say, unknown high school students it’d be easier for someone to get away with crudely plagiarizing our work. True enough.
Even so, putting work into the public domain feels good. I recommend you try it.
Peter Hirtle points out that Creative Commons 0 isn’t exactly the same as public domain, although functionally it’s identical. The whole question of trying to eliminate all copyright interests in a work is vexed. Peter points here for details and evidence of the complexity of the issue. Thanks, Peter!
The clues are designed as an open source publishing project: The text is in the public domain, and we’re making the clues available at Github in various computer-friendly formats, including JSON, OPML and XML.
We launched this morning and a happy hell has broken loose. So I’m just going to posts some links for now. In fact, I’m copying and pasting from an email by Doc:
I went to see To Be Takei last night, and George himself was there for an interview afterwards. It occurred to me that I’d like him to autograph his book Oh Myyy, but I only have a copy on my Kindle.
So, here’s a proposal for the Kindle, the Nook, and for any other DRM-ed ebook reader: Allow us to embed one and only one photo into our copy of an ebook. That photo can never be replaced. It can be deleted, but then the slot is gone forever. This could be implemented as a special one-time-only annotation, and it would be managed by your fearsome machinery of control.
That way, I could take a selfie with George, post it into my Kindle copy of his book, and have the digital equivalent of an autographed copy.
I don’t see a way of doing this for open access e-books. Stupid open access e-books what with their “Oooh look everyone can read me!” smirks and their “Now everyone can learn and participate in culture” attitudes.
PS: To Be Takei was really enjoyable. Totally worth seeing, especially with an appreciative crowd.
A year ago, Harold Feld posted one of the most powerful ways of framing our excessive zeal for copyright that I have ever read. I was welling up even before he brought Aaron Swartz into the context.
Harold’s post is within a standard Jewish genre: the d’var Torah, an explanation of a point in the portion of the Torah being read that week. As is expected of the genre, he draws upon a long, self-reflective history of interpretation. I urge you to read it because of the light it sheds on our culture of copyright, but it’s also worth noticing the form of the discussion.
The content: In the Jewish tradition, Sodom’s sin wasn’t sexual but rather an excessive possessiveness leading to a fanatical unwillingness to share. Harold cites from a collection of traditional commentary, The Ethics of Our Fathers:
“There are four types of moral character. One who says: ‘what is mine is mine and what is yours is yours.’ This is an average person. Some say it is the Way of Sodom. The one who says: ‘what is mine is yours and what is yours is mine,’ is ignorant of the world. ‘What is mine is yours and what is yours is yours’ is the righteous. ‘What is mine is mine and what is yours is mine’ is the wicked.”
In a PowerPoint, it’d be a 2×2 chart. Harold’s point will be that the ‘what is mine is mine and what is yours is yours.’ of the average person becomes wicked when enforced without compassion or flexibility. Harold evokes the traditional Jewish examples of Sodom’s wickedness and compares them to what’s become our dominant “average” assumptions about how copyright ought to work.
I am purposefully not explaining any further. Read Harold’s piece.
The form: I find the space of explanation within which this d’var Torah — and most others that I’ve heard — operates to be fascinating. At the heart of Harold’s essay is a text accepted by believers as having been given by God, yet the explanation is accomplished by reference to a history of human interpretations that disagree with one another, with guidance by a set of values (e.g., sharing is good) that persevere in a community thanks to that community’s insistent adherence to its tradition. The result is that an agnostic atheist like me (I’m only pretty sure there is no God) can find truth and wisdom in the interpretation of a text I take as being ungrounded in a divine act.
But forget all that. Read Harold’s post, bubbelah.